ALBANY, New York — Alicia Barraza started her testimony with statistics. Sixteen- and 17-year-olds who serve time in New York’s adult facilities are twice as likely to report being beaten by staff, she said matter-of-factly. Looking straight ahead at a panel of New York state senators, she explained that juveniles in adult facilities are 50 percent more likely to be attacked with a weapon, are most at risk of sexual assault and are 36 percent more likely to commit suicide.
Then, after a brief pause, her voice softened. She looked down, gathered herself and took a deep breath.
“Tragically, all these things happened to Ben,” Barraza said, referring to her son in a soft, barely audible voice.
The senators who had remained nearly four hours into testimony on a cold early February afternoon in Albany grimaced, watching her recount in excruciating detail all the institutional decisions that led to her son’s rape, confinement to solitary and, ultimately, to his death.
“He tried to complain but instead he was threatened with his life if he did not keep his mouth shut,” she said.
Barraza’s son, Ben Van Zandt, was 21 when he committed suicide in New York’s Fishkill Correctional Facility after serving nearly four years in adult facilities. Van Zandt was arrested at age 17 for arson. Like all 16- and 17-year-olds in New York state, he was charged as an adult. This set off a cascade of events that are now being litigated in three separate lawsuits.
What is certain is that had he been 15 at the time of his arrest or, put differently, had the state of New York treated Ben as a juvenile instead of an adult:
- he never would have been put into an adult facility
- he never would have been put into solitary confinement
- he never would have been denied his mental health medications and
- he would have had access to a host of therapy and mental health services.
Whether he still would have killed himself given this alternate timeline is uncertain. But Ben’s parents think their son would be alive today if New York had already raised the age of criminal responsibility, when a person is automatically treated as an adult, to 18.
Ben’s parents, Barraza and Douglas Van Zandt, are not the faces usually associated with advocacy around this issue. The poster child for Raise the Age is a black or Latino youth from one of New York City’s tougher, crime-ridden neighborhoods. Part of the reason they are being politically active, they say, is to let people know this could happen to anyone’s child who gets enmeshed in the state’s criminal justice system.
Barraza testified for the first of many times just two weeks after their son’s death.
New York is one of only two states in the nation — the other is North Carolina — that automatically tries 16- and 17-year-olds as adults. For the third year in a row, many in New York are working to raise the age to 18.
The proposed legislation would raise the age of criminal responsibility to 18, except for certain serious crimes such as murder and some violent felonies. It would prohibit the placement of teenagers under 18 in an adult jail or prison. It creates a youth court for juvenile offenders. It also expands the existing youthful offender law to allow persons up to 20 years old.
Similar legislation has come up in Albany before and been shot down. The real challenge, advocates say, will be in the Senate, where upstate counties, many of which are Republican, prefer a “tough-on-crime” approach to legislation.
The 31 Republicans have the ability to defeat the legislation. To pass, advocates need to win the support of at least two Republicans.
Sen. Patrick M. Gallivan, a Republican, is chair of the Senate Standing Committee on Crime Victims, Crime and Correction, which has legislative oversight of proposals seeking to amend correction, penal and executive laws. Negotiations are continuing this week over the issue, he said, and he’s “hopeful” an agreement can be reached. Conversations with Gov. Andrew Cuomo and the assembly have been “productive.”
“While I recognize that 16 and 17 year olds are different from adults and that changes to our current system may be appropriate, public safety is paramount,” he said in a statement issued this week.
“In determining whether an individual case should be handled in family court or a criminal court, we must ensure that people who commit violent crimes and prey upon our communities are held accountable for their actions,” Gallivan said in the statement. “At the same time, we should ensure appropriate services are available for 16- and 17-year-olds in an effort to reduce recidivism and encourage a law abiding, responsible and successful future.”
John Flanagan, leader of the Senate Republicans, declined to comment for this story.
Outside the hearing room, in the hallway of the Legislative Building in Albany, about 20 protesters said the case against current law and in favor of raise the age is resoundingly a moral one. Some openly considered risking going to jail for criminal trespass after the sergeant-at-arms in charge of security told them they couldn’t bring the signs into the hearing room. Four hours of testimony from reformers, experts, prosecutors and defense attorneys further illustrated how contentious and controversial the issue remains in the state.
The Albany hearing where Barraza testified was just one example of a flurry of recent activity around the momentum to raise the age.
In New York City on Jan. 19, the City Council held a joint public committee hearing on raising the age to help advance the state effort while protesters outside held a rally calling for change.
On Feb. 14, Families Together in New York State, a youth nonprofit, hosted a Legislative Awareness Day in Albany to draw attention to the bill and the topic. That same day, the New York State Assembly passed bill A4876 on a vote of 81-40.
“As a speaker of the New York State Assembly and a father, there is no greater legislature priority,” Speaker Carl Heastie, a Democrat, said at the press conference announcing the bill’s passage. “We have a moral obligation to confront the faults in the system that exacerbates the economic and racial disparity that disproportionately affects low-income individuals.”
The case for raising the age
In North Carolina, there is also a push to change the law. In Texas, some legislators and advocates want to move the criminal age of responsibility to 18. Texas is one of seven states that still treat 17-year-olds as adults.
On the other end of the reform spectrum is Connecticut. Connecticut enacted the kind of legislation being considered this year in New York and it was so effective there is now a push to move the age of criminal responsibility from 18 to 21. That campaign is being driven both by the success of their 2010 legislation and by findings in developmental brain science that shows young people’s brains are still developing well past their teens.
A recently released report by the Justice Policy Institute, "Raising the Age: Shifting to a Safer and More Effective Juvenile Justice System," said the change is urgently needed.
“When young people are in the adult justice system, they and their communities are less safe than they could be. In places that have not yet raised the age, a generation of youth will continue to face challenges transitioning to adulthood because of their exposure to the adult justice system.”
The report highlights the successes of states that have recently raised the age and provides a road map for containing costs, enhancing public safety and providing young people with services they need.
While some have pointed to the need — and associated cost — to build additional juvenile court facilities, Tami Steckler, a Legal Aid Society attorney in charge of the juvenile rights practice in New York City, said squabbles about where the future raise the age law should be applied is a distraction. She argues that family court law and services can be administered anywhere.
The buildings don't matter, she said, it's the family court law and training and availability of services that matter. Family court law already exists to help these kids, she added.
“We don’t let them drink, we don’t let them vote,” she said. “And we don’t do that for a reason, right? Because we say their brains work differently, they don’t work the same way and they can’t process the things that require them vote or maybe drink. The same thing should be true in a criminal justice proceeding. Their brains work differently. Family court is built to address that issue.”
Energy around the legislation has been growing. Although many supporters are now more confident than they have been before, many are still cautious.
The young man who paced back and forth behind the metal police barricades on an overcast and cold March afternoon in New York City is among the cautious.
He was leading chants and buoying the spirits of those at a rally to raise awareness of the legislation, imploring the public to put pressure on their state senators to turn the bill into a law.
He wanted everyone passing by on Broadway in Lower Manhattan to know what happened to his dead brother. He had a bullhorn in his hand to make sure they could hear him loud and clear.
“I want to make sure we keep saying my brother’s name,” he said to the dozens of assembled protesters on the sidewalk near City Hall. “What’s his name?” he barked into the megaphone.
The protesters said the young man’s name in a uncoordinated mumble.
He raised the bullhorn to his mouth again.
“A little bit louder!”
This time the protesters shouted the name so that it could be heard on the other side of the street.
The young man with the bullhorn is Akeem Browder, brother to Kalief, whose name has become synonymous with the perils of not moving to raise the age.
At 16, Kalief Browder was arrested for stealing a backpack and spent three years on Riker’s Island, two of those years in solitary confinement.
“My brother suffered on Rikers Island for three years for a backpack, something that is commonly considered a mistake,” Browder said, speaking to a father passing by the rally with a young son in tow.
“And he ended up coming home tortured, battered and broken and hung himself, killed himself,” he said. “So we’re here to raise the age awareness because we have a bill that we want to get passed so that the city doesn’t treat our kids as adults and looks at them as the kids that they are.”
Since his brother’s suicide, Akeem, 34, has dedicated his life to reforming what he sees as New York’s broken criminal justice system, particularly the parts that he said led to his brother’s incarceration for stealing a backpack. Part of that broken system is what he calls the state’s “shameful” reluctance to raise the age.
He too knows first-hand what it’s like to be a teenager thrown into the system.
“I myself was on Rikers,” Browder said. “I was 14 and sent to Rikers for an alleged crime.”
He was confused with a 27-year-old wanted for a series of crimes, he said. Law enforcement later caught the right perpetrator, the charges were dropped and he was eventually released. But the damage was done.
“Four months, man, four months I spent in that torture factory,” he said. “For a 14-year-old, four months is your life. When you’re inside they treat you like an animal. When they release you, you come back home like an animal.”
Browder shares the worries of many who have been advocating for the legislation. This year, an additional fear is that the legislation might get so watered down it won’t be effective in redirecting teenagers away from the adult system, he said.
There has been a lot of talk in Albany, Browder said, about keeping those charged with violent offenses out of the proposed legislation. He called this a misleading and politically charged term.
“All these titles separate us, and they want to separate more by saying this is a violent or nonviolent crime,” Browder said, adding that police routinely give individuals harsher charges at the time of arrest. However, grand juries tend to indict only on lesser charges, he said, meaning that individuals categorized as violent offenders at the time of arrest are tried only for nonviolent charges.
Kalief would have been considered a violent offender even though all he was actually accused of was stealing a backpack, based on his charges, he said.
“We need to shut it down so we can understand that the funds that we use can actually be for real treatment or real correction instead of putting them in jail and having to fight for their lives,” he said.
Darren Mack, program coordinator at The Center for Justice at Columbia University, told the crowd at the City Hall rally that he was just 17 when he was arrested in Brooklyn for a robbery in 1992. He said he is still haunted by the bus trip he took across what is known to inmates as the Bridge of Pain, the bridge that leads to Rikers Island, New York’s largest jail complex.
“I spent 19 months of hell in the Abu Ghraib of New York City,” he said.
“Our laws forbade me to buy alcohol at 17 years old, our laws forbade me to serve enlist the military to serve our country at 17 years old, the law forbade me to do so many things at 17 years old,” he added. “But when it came to punishing me, the law treated me as an adult.”
This latest push comes as progressives and conservatives nationally forged an unlikely ideological coalition in recent years over a shared commitment to criminal justice reform. Raising the age has been a centerpiece of that reform since it has shown results in lowering recidivism over the long term. That satisfies both fiscal conservatives on the right looking to save money and limit government overreach and progressive activists on the left who see children thrown behind bars as one of the pressing moral civil rights issues.
“We are cautiously optimistic on this third try, but it feels like having talked about it for three years has actually helped, that it was something that legislators, constituents, staffers, people in general really needed to learn more about and understand,” said Stephanie Gendell, associate executive director for policy and advocacy at the Citizens Committee for Children. “The bill is almost 200 pages, so it is something that actually takes time to digest and understand, and we’re very hopeful that we will come through this session with legislation that passes.”
That budding coalition has seen a number of uneven gains across the country in recent years. Some of those gains have occurred in New York, where Cuomo signed an executive order removing 16- and 17-year-olds from adult prisons and another offering an executive pardon to people who were arrested when they were 16 or 17 for misdemeanors or nonviolent felonies but remained crime-free for 10 years, both in December 2015.
"We spent all of these years believing that if we punished every offender enough without any relief in the future, every crime would disappear,” Cuomo said in 2015, during the state’s second attempt to raise the age.
“What we ultimately did was give a life sentence of stigmatization to kids who made a mistake and drive more people towards crime, because society told them for the rest of their lives that that's what they were — criminals,” he said. “This initiative is about validating the personal commitment of people who turned their lives around and rejected crime in exchange for being a contributing member of society."
“Maybe we’re wearing them down,” Van Zandt said after the long Albany hearing Feb. 7. “That last group there,” he said referring to a mix of lobbying groups representing state counties, probation and welfare organizations, “they all seemed to be in favor of raising the age, but they were just looking at the funding aspect.”
That underscores a huge part of the resistance to the bill — money for changing the system. That’s partly due to local politics, ideological gaps between New York City and the dense surrounding areas in Westchester and Nassau County and the more rural counties upstate and in eastern Long Island.
Van Zandt said he found those arguments specious when he can point to other states that are both more rural than New York and much poorer that have made the change.
“It’s odd that you have states like Louisiana, West Virginia, Mississippi and they all have the age of criminal responsibility higher, yet New York state is saying, ‘Well, we can’t afford it,’ Van Zandt said. “I think that’s kind of an unfortunate excuse, you know. Everybody’s worried about the money.”
In 2015 Cuomo set aside $135 million to raise the age. But now, as the issue is still up for debate, it remains unclear how much will be set aside in the budget for the measure if it passes.
“New York state is feeling the pressure of maybe being the last one to make this change,” said Alicia Barraza, Van Zandt’s wife and Ben’s mother. “We’ve always thought of New York state as being progressive and yet to not have passed this bill when the rest of the country doesn’t treat 16- and 17-year-olds as adults, well, it’s shameful,” she added. “Who wants to be the last state in the country to make that change?”