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adolescent offender

Plan for adopting new 'Raise the Age' rules still a 'work in progress'

By Howard B. Owens

Dealing with the state's new "Raise the Age" rule for handling 16- and 17-year-old criminal defendants is still a "work in progress," says County Manager Jay Gsell, both for the county and for the state.

And the fact that the state doesn't totally have its act together is one of the most frustrating things about the new law, Gsell said.

"This legislation has been in the works for about four or five years," Gsell said. "So why is the state so ill-prepared at this point? If this has been something that's been on their radar screen for the last four or five years, that to me is where the state, again, has has come up short."

The new law creates an "adolescent offender" (AO) class of defendant, putting 16- and 17-year-olds between youthful offenders and adult offenders. New York is one of the final two states to recognize that teenage brains -- really, human brains into the mid-20s, according to neuroscientists -- are not fully developed. Adolescents are more prone to rash and poor decisions, peer pressure, and more susceptible to not fully appreciating the consequences of their actions. 

Gov. Andrew Cuomo signed the new legislation into law in April. 

"By raising the age of criminal responsibility, this legislation will reduce crime, recidivism, and costs to the state, and help us deliver on the New York promise to advance social justice and affirm our core progressive values," Cuomo said at the time.

"Providing young people with age-appropriate facilities and rehabilitation will restore hope and promise and help them turn their lives around to build a better future for themselves, their families and for our great state."

What the law means for counties is that once a potential adolescent offender is arrested, the arresting officer must stay with the individual constantly until the youth is in an appropriate holding facility. The AO cannot come into even visual contact with an adult offender. This means special holding rooms at the courthouse.

But more significantly, the county will need a place to hold AO offenders who are sentenced to less than a year in jail. They cannot be placed with the general jail population. They also must be provided enhanced services and evidence-based programs. 

The county currently has no such facility.

Gsell said the county is in talks with the other GLOW counties about a possible joint facility. 

Where the state's guidelines breakdown is there is yet to be created a final document of requirements for such a facility, though New York's counties are expected to have these facilities open and running by October of this year.

"There are a lot of complications going around with this coming out, and the state itself has not done much on it in terms of draft regulations," Gsell said. "There are specialized secure detention regulations out now but we're in the month of February and they're still in the draft form."

Gsell said whether the county, or counties, build new or repurpose an existing building, it will take at least two years of planning, financing and construction to get such a facility open.

Supposedly, the state will reimburse 100 percent of the county's "eligible" expenses.

"Pardon my rampant skepticism, but I don't buy into the notion that the state will blanket cover 100 percent of all eligible expenses because they can keep changing that bar and keep moving it, which is what they've done in the past," Gsell said.

And at some point, reimbursements, based on the state's history, are likely to dry up.

"Every year this kind of funding is subject to appropriation, a.k.a., the state decides that they can't do this anymore because, as they're dealing with right now, a four billion dollar deficit in his proposed budget that in three years will grow to eight billion dollars a year. It is potentially likely that, as they have done in the past, they will tell us, 'well, you know, we had the funding at one time but we can't afford that, so counties you're back on your own again.' "

As for a potential location for a secure detention facility -- apparently, not called a juvenile hall -- Gsell threw out one possibility: the former armory on State Street in Batavia.

"It's already got that secured fencing," Gsell said. "It's already a building that is set up with a kitchen and has small living quarters, has an open area. Stranger things happen. But it's not owned by a public entity anymore. It's a private-sector building but the owner doesn't seem to have any plans."

There may also be facilities within the GLOW region that the state already owns that could be repurposed.

"The Albion Correctional Facility probably has a lot of space," Gsell said. "You know, you're the state. You're making up the rules. You're the ones that say you have the money. Spend it more wisely than just having all of us go out and start creating 57 of these little things all over the state."

The state is already repurposing a facility to house 16- and 17-year-old offenders who receive sentences longer than one year.

This demand for an AO facility comes at a time when the state is already leaning on the county about building a new jail, a project will cost as much as $52 million and the county will largely be on its own to fund.  

A new jail will cost about $285,000 per bed and will contain 125 to 175 beds.

"Our biggest consideration is, we've got to figure out what to do to pay for a new county jail, and how big it's going to be, sometime in the next four or five years," Gsell said.

The county has two committees currently working on AO-related issues, one involving several county department heads and staff members, and one involving the leaders in the county's criminal justice system.

These two committees, Gsell said, will help the county both realize what is possible, what is necessary, and, especially with the committee on the criminal justice side, guide the county away, hopefully, from potential pitfalls.

The judges can also help come up with guidelines so that some of the AOs -- an estimated seven to 10 a year -- who might otherwise get sentences of less than a year -- can be set up on programs similar to Genesee Justice or provided with electronic monitors. Such diversion programs will help save the county money.

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