TO: Senator William
Larkin; Senator John Bonacic; Senator George
Amedore; Senator James Seward; Assemblyman
Peter Lopez;
Assemblyman Kevin Cahill; Assemblyman Frank
Skartados;
Assemblywoman Claudia Tenney
FROM: HOLLEY
CARNRIGHT, ULSTER COUNTY DISTRICT ATTORNEY
DATE: MARCH 19, 2015
RE: JUVENILE JUSTICE
ACT
Greetings:
I am writing
regarding the Juvenile Justice Act Bill, which is included in the 2016 budget
proposal. Please understand that I speak
with you only as the Ulster County District Attorney, not on behalf of DAANYS.
I feel there is not
enough transparency to this Bill. With
very few exceptions, virtually no one I have spoken with understands the
details of this seismic change in our Criminal Justice System. My suggestion would be that the Bill is
tabled. If a compromise is necessary, the
money for the Bill could easily be put in the budget, provisionally, for a Bill
that will follow which raises the age of criminal responsibility. Then, over the course of the next few months,
all of the stake holders can review and present a cogent, workable Bill that
increases services to many younger offenders while still protecting the rights
of the community, and specifically of victims.
At the Bill’s core
is the assumption that many youths have not set their moral compass by age
17. Therefore, it is unjust to treat
them as adult criminals. They should not
be housed with adult criminals.
Moreover, if we provide better, earlier, services to some in this
population it will decrease recidivism.
The conflict I have
with the current proposal is that the Bill far exceeds the above stated goals
and, rather than making us safer, it presents a clear and present danger to
those people who are our most vulnerable, ie, child victims, domestic violence
victims, victims of sexual crimes and addicted persons.
There is a lot to
like in this Bill. I am convinced that a
revamping of the current Family Court PINS system (long overdue) and influx of
money to improve services can reduce recidivism within a certain segment of the
younger, first offender population. I
actually like the idea of a specialized youth court for some types of cases. In addition, I agree that housing youths with
adult criminals should be addressed.
My view as the
Ulster County District Attorney is pretty straight forward. We are morally and ethically obligated to
improve the protection of the people we represent. Wherever this Bill does that, I am on board.
However, I am opposed to those provisions which threaten to downgrade the
strides we have made in protecting the public. I do not intend the following list to be dispositive
regarding the entire Bill but here are a couple of provisions which I oppose
since I feel that they a) do not promote the basic premise of the Bill and b)
will inhibit me from protecting the public.
A. Restrictions regarding questioning. I oppose the provisions in this bill that
call for restrictions to be imposed regarding
questioning of young offenders.
1) It does not define a recognizable or enforceable standard.
2) It does not improve public safety.
3)
It is unnecessary since the Bill is replete with protections for this group.
4)
In my experience, when an offender who has cooperated with the police is honest
and accepts responsibility for his actions, is a critical factor in
recommending consideration.
5) Moreover, this provision may actually
serve to create
unjust results.
The first step in
every criminal investigation is to get to the truth. Questioning defendants does, sometimes, form
the basis for their arrest. On the other
hand, questioning defendants also may serve to have an individual released, who
would otherwise be wrongfully charged and it might help to file the correct
charge against the right individual. Noone
is served when the wrong person is arrested or they are overcharged.
We have years and
years of experience in defining when and under what circumstances police can
question an individual. This particular provision should be excised from the
Legislation.
Let me offer a
circumstance where this provision will commonly come into play. Like it or not, this Legislation will
encourage criminal enterprises to recruit younger individuals. For example,
drug traffickers will recruit 17 year olds knowing that these individuals
cannot now be prosecuted. With the above
referenced provision, regarding the questioning of 16 and 17 year old
offenders, those individuals cannot even be questioned. If our goal is to help the underage offender
but at the same time prosecute the adults who are luring the underage offender
into the Criminal Justice System then we should be allowed to question the
underage offender.
B. Extending YO to age 20. This provision does not promote safety and flies
in the face of victim’s rights and protections.
I am sure you are aware that if any individual is granted YO then they
are not required to register under SORA.
Already in the Bill is an “amnesty” - record expungement provision. I do not see that we need also to have an
extended age for YO. If an under 21 year
old defendant follows the provisions of the expungement portion of the Bill then
YO type protection will be afforded to them.
Furthermore, YO
status should not be a bar to either registration under SORA nor should it be a
bar to the mandatory taking of a DNA sample.
C.
Adjustment. As I understand it, we have a Family Court Act
which was put into
place largely to deal with truants, ie
PINS, for underage minor offenders. It allows, actually
requires, a probation
officer to “adjust” a PINS petition
rather than take up the time and expense of
the court by
filing a petition in Family Court.
This process,
“adjustment”, is based on an interview with the youth,
preferable with their parent present, and a risk assessment
- no DA, no
judicial overview, no victim input. It
is my
understanding that seldom is there even an independent
investigation done
by probation. With regard to 13 and 14
year olds’ PINS petitions, this procedure may make sense.
However, to now put Penal Law offenses into
the same
procedure, ie., no DA, no judge, no victim input, no
independent
investigation, for 16 and 17 year old offenders
is a very bad idea.
In my judgment, every
16 and 17 year old misdemeanor, felony, and domestic violence related
harassment charge should go to a DA. If
the youth court is in place many of these cases will originate there. The DA can transfer the appropriate cases, on
notice to the victim, to Family Court.
Even those cases that are prosecuted by the District Attorney, in the
youth part, still have all of the other protections afforded by the statute ie.,
the sealing of records, lower sentences, etc. The PINS adjustment procedure for criminal cases and victim
cases (harassments) is a
provision I could never
support.
The list of cases,
primarily violent felony offenses, which are excluded from the increased age of
criminal responsibility, should be expanded.
Bear in mind this is just a jurisdictional step. It does not determine
the outcome of the case either by way of prosecution or sentence. All of the Bills’ protections, ie., transfer
to Family Court, non-jury prosecutions in youth court, youthful offender
adjudications, sealing of records, expungement of records, lower sentencings,
are still available. Having a case included in the expanded list of cases
simply means that the offender’s case is reviewed by a DA and a judge, with
victim input, as they currently are.
Statistically, the overwhelming majority of these cases today do not
result in adult prosecutions. Assuming
that this Bill improves services and we see that those improved services are
effective in reducing recidivism, I predict that fewer and fewer cases will be
prosecuted. Again, this change simply
allows the system to look at each case and try and reach a just result, it does
not predetermine the result.
I would include in
the excluded cases category every Article 130 arrest (sex offenses) and every
domestic violence incident. I would also
include every sale or possession with intent to sell heroin case. Again,
this change simply allows the system to look at each case and try and reach a
just result, it does not predetermine the result.
Sentencing. The new sentencing guidelines mandated by this
draft of the bill are unnecessarily lenient.
Rape in the First Degree, Manslaughter, Assault in the First Degree,
would now draw a 1 to 7 year determinate sentence. It would be very difficult for me to try and
explain to the victim of a rape or the victim’s family in a manslaughter case
that the person who committed this crime could receive as little as one year in
prison.
I believe that the
basic premise behind this Bill presents an opportunity to improve our Criminal
Justice System. I cannot even imagine
the additional costs associated with these changes or where the money will come
from but that is not my focus. My focus
is the safety of the people I represent.
I would like the opportunity to stand with you and support a Bill that
would do that. This current proposal is
not that Bill.
I would be happy to
speak with you regarding this matter in further detail at your
convenience. Until then I remain.
Very Truly Yours,
HOLLEY CARNRIGHT
