by Bob Simmons

New York and North Carolina remain the only two States that automatically prosecute 16 and 17-year-olds as adults. Legislation to raise the age for adult prosecution to 18 has stalled in both States.

juvenile delinquency 1On December 20, The New York Times published an article regarding a new proposal by New York Governor Andrew Cuomo to provide a mechanism for pardoning some juveniles who were convicted as adults at 16 and 17. While Governor Cuomo’s proposal might be a small step in the right direction, it has been characterized as “bold” despite its qualifications and limitations. This is a sad commentary on our society’s continuing tendency to blame and to discard children in difficult circumstances.

  • If this proposal were bold, it would not just pardon non-violent offenders convicted as adults at 16 and 17 if they have not been convicted again in 10 years: it would automatically expunge their records, and it would not require a decade of suffering before making relief available.  
  • If this proposal were bold, it would not require the victims of inappropriate adult prosecution and conviction to prove that they are “productive members of their community,” a process that makes them jump through an unnecessary hoop under a subjective local standard that is likely to be used to deny pardons.
  • If this proposal were bold, it would not exclude people who are behind on their taxes. Convicted victims of inappropriate adult prosecution are likely to have difficulty getting and keeping jobs as a result of the adult record they have been forced to carry, creating financial difficulty making it easy to fall behind on many obligations, including taxes.
  • Most importantly, if this proposal were bold, it would allow the pardoned victims to avoid checking the box on job applications. What purpose does it serve if those pardoned must keep and produce their pardon documentation for every job application – and still have no assurance that the employers will not continue to exclude them?

In North Carolina, we are also suffering a lack of boldness. The bill to raise the age here was stymied in the NC House during the last session. As with Governor Cuomo’s proposal, that bill might be a step in the right direction, but it raises the age for misdemeanors only. There is no justification for the distinction: if a child should not be prosecuted as an adult for a misdemeanor because of lack of the mental capacity to control the impulses leading to the commission of the crime, then that same lack should prevent the child from being prosecuted as an adult for a felony.

In North Carolina, we also need to change our law to prohibit the transfer of 13 to 15-year-olds to adult court.  In particular, our statutory mandatory transfer of 13 to 15-year-olds on Class A felonies is probably even more unjust than the statutory automatic adult prosecution of 16 and 17-year-olds – especially when combined with the application of adult treatment for every subsequent offense after a child is transferred.

Perhaps the characterization of Governor’s Cuomo’s timid step as bold and perhaps the limits of the raise the age bill in North Carolina are to be expected in a society that still prefers the simplicity of punishment over the more complex work of treatment and rehabilitation. But the risks of being satisfied with small steps like Governor Cuomo’s and like the bill languishing in the in the North Carolina House are that we set the bar for justice reform too low and we risk both complacency and resistance to further progress.

So, while advocates for children’s rights should be happy both that Governor Cuomo appears to comprehend the injustice of trying, convicting, and punishing children as adults and that he is willing to do something rather than nothing, we must also be honest about the small and qualified nature of this step in the right direction so we do not forget about the real boldness that is still required and that is still missing in action.

The truth is that Governor Cuomo’s proposal and North Carolina’s own raise the age bill are not justice: they are mere adjustments of continuing injustices. Our children deserve better, and it is our job to stand up and to speak out for them.

Bob Simmons is the executive director of Council for Children’s Rights.

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