Arresting a 7-Year-Old For Delinquency? New York Lawmakers Say No More

Montgomery child welfare bill new york

New York State Senator Velmanette Montgomery pictured, during a spring 2019 Senate session at the New York State Capitol, has introduced a bill to limit arrests of pre-teens. Photo credit: NY State Senate

Many parents don’t let their elementary school-age children leave the house alone. But under New York law, children as young as 7 can be handcuffed, tried for delinquency and locked up at times with teenagers twice their size. 

The justice system’s racial disparities are most glaring in this small corner: In New York City, children of color comprise more than 90% of those arrested ages 7 to 11, according to state data. And in 2018, every single arrest that resulted in a delinquency court petition was filed against a Black or Latino kid. 

Now, state lawmakers want to keep all very young children out of the criminal justice system, with a recently introduced bill to lift the minimum age for arrest and detention. Under this “raise the floor” proposal, no child younger than age 12 could be arrested for delinquency offenses, while anyone younger than age 13 would be barred from higher-security detention facilities. If approved by lawmakers, New York would join California and Massachusetts as the states with the oldest eligibility age for delinquency charges involving crimes committed by minors. 

State Sen. Velmanette Montgomery called the reform long overdue in New York, describing it as a necessary part of lawmakers’ recent push to get police out of schools and to reduce school suspensions. 

“This is clearly an outrage, and it’s unacceptable. Most of these children are children of color,” the Brooklyn Democrat said in an interview, referring to the arrest of pre-teens. “We are all marching under the banner of Black Lives Matter, and Black children matter. We can’t allow our system to treat children in such a callous manner.”

The change in law could affect thousands of children in New York. Between 2014 and 2018, children younger than 13 were arrested 6,926 times, sent to delinquency court 2,326 times, and admitted to detention facilities 732 times between 2014 and 2018, according to the state’s Division of Criminal Justice Services. 

Decades of research show that a vast majority of court-involved youth have experienced trauma, often in the first five years of their lives. Locking them up earlier has not shown to be effective in helping them heal, or in protecting the public.

According to a 2010 research review by the nonprofit Campbell Collaboration, there’s evidence that “the system overall does not result in preventing future crime, but instead increases the likelihood of future criminal behavior.” That finding was cited in subsequent reporting on juvenile justice reforms by the National Research Council, the federal government’s nonprofit clearinghouse for objective policy advice. Many developed countries outside the United States do not expose pre-teens to the delinquency-type charges at all.

New York’s minimum-age bill, introduced earlier this month, would affect law enforcement and detention agencies statewide, including New York City’s Police Department, Department of Probation, and Law Department, which prosecutes delinquency cases in family court, as well as the Administration for Children’s Services, which manages services and detention for court-involved youth. Under the bill, the city and every other county in the state would be required to create new child welfare services for kids younger than 12, called “differential response programs.”

The legislation is still under review by Mayor Bill de Blasio’s administration. A spokesperson for the Office of Children and Family Services, which regulates juvenile justice statewide, said the agency does not comment on pending legislation.

The bill’s Assembly sponsor, Ellen Jaffee of suburban Rockland County (D), said reform could help break the school-to-prison pipeline and address racial injustices highlighted by the recent police killings of “George Floyd, Breonna Taylor and countless others.”

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Rockland County Assemblywoman Ellen Jaffee (D) speaks in Albany in February. Photo: New York State Assembly

Jaffee said she hopes lawmakers will act quickly to approve the bill. “Our end goal should always be to ensure that children are given support and treatment, not punishment,” she said in an emailed statement.

Most states set no minimum age of delinquency, while 15 states set the age at 10, according to the National Juvenile Defender Center. California raised its minimum age to 12 last year. An earlier Raise the Age reform in New York, which passed in 2017 with Jaffee and Montgomery among its champions, moved most 16- and 17-year-olds out of the adult criminal system. Raising the minimum age for delinquency charges was discussed as part of that reform, but didn’t make it into the final bill. 

Now, those efforts have been revived. According to the Legal Aid Society’s 2020 New York State Black Youth Justice Agenda, released today, the minimum-age proposal is one of several youth justice bills that amount to the most important reforms in recent years.

“Amid the nation’s moment of reckoning around racism and the disproportionate treatment of Black and brown communities, New York must take action to protect our most vulnerable children and ensure that they are treated as children and not unjustly drawn into the prison pipelines that have historically ravaged communities of color,” Dawne Mitchell, attorney-in-charge of the Juvenile Rights Practice at the Legal Aid Society, wrote in an email statement. 

Legal Aid and other justice advocates are also touting bills that would change how police handle juvenile investigations: One, sponsored by Bronx lawmakers Sen. Jamaal Bailey and Assemblywoman Latoya Joyner requires that children must consult with lawyers before police questioning, among other provisions. A third bill, sponsored by Sen. Brad Hoylman of Manhattan (D) and Brooklyn Assemblywoman Tremaine Wright (D), would prohibit local police agencies from maintaining DNA identification indexes, which can include people as young as 12 who have come into contact with law enforcement but have not been convicted of anything. 

And in a sign that the democratically-controlled Legislature is amenable to revising its approach to juvenile offenders, another reform that had been under consideration for years passed the Assembly Tuesday, mandating video recording of all interrogations in delinquency cases. The legislation passed the Senate in March, and could soon be headed to Gov. Andrew Cuomo’s desk for final approval.

Julia Davis, a juvenile justice advocate with the Children’s Defense Fund’s New York chapter, said it’s also promising that each of the yet-to-be-approved bills have been introduced and have attracted lead sponsors and co-sponsors in both houses. 

“It means that there’s some momentum,” said Davis, the Fund’s director of youth justice and child welfare. “But we have to be realistic about whether it’s going to happen this session or keep the momentum going into the next year.”

Michael Fitzgerald can be reached at mfitzgerald@chronicleofsocialchange.org.

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