Cuomo’s “Carceral Humanism”

Andrew Cuomo is being touted as a 2020 presidential contender. But his juvenile justice reform law does more to shore up the carceral state than attack it.

New York governor Andrew Cuomo speaking at rally in 2015. Wikimedia

It was a historic day for youth, New York governor Andrew Cuomo told his audience. With the “Raise the Age” bill, the state would no longer be one of only two that prosecuted and imprisoned all sixteen- and seventeen-year-olds as adults.

For years, parents, community activists, and liberal reformers had pushed for the change. The 2015 death of Kalief Browder, who at the age of sixteen landed in Rikers Island prison for allegedly stealing a backpack, added more urgency. After three brutal years awaiting a trial that never came, Browder returned home innocent of any charges but deeply traumatized. Support from his family, the media, and even celebrities — from Oprah to Jay-Z — was not enough. Unable to retrieve his lost youth, Kalief committed suicide.

Two years later, on April 9, 2017, Cuomo signed the Raise the Age bill in Harlem. Turning to Kalief’s brother, Akeem, he proudly proclaimed: “Your brother did not die in vain. Your brother died to make a social change and he has. God Bless You.” Standing alongside the Reverend Al Sharpton and Harlem Democrat Charles Rangel, Akeem looked on as Cuomo affixed his signature to the bill. Politicians, the press, and many youth advocates celebrated.

Reactions a year later are much grimmer. Akeem refused to endorse Cuomo in the Democratic gubernatorial primary, joining others who had come to see a future of not less punishment of youth, but more. Everywhere across the state police, prosecutors, and jail administrators are building new youth prisons and courts, and adding to county payrolls new correctional staff, court officers, judges, youth counselors, probation officers, and prosecutors. Criminal justice reform in the Empire State has come indeed, but for many it presents but a new face of mass incarceration and mass policing.

Examining the current slate of criminal justice reforms, activist James Kilgore has warned of the danger of “carceral humanism,” with jails repackaged as caring social service centers and alternatives to incarceration simply extending the carceral net. Anti-prison movements are also sounding the alarm. From Los Angeles to upstate New York, activists are challenging the use of law enforcement agencies as social work providers and the expansion of jails as a means to deal with social problems like mental health and substance use disorders.

Cuomo’s Raise the Age bill falls into the same trap — reshaping detention and probation in a way that extends punitive state intervention into the lives of young people without paring back the carceral state.

What Went Wrong?

Things weren’t supposed to turn out like this. When it was first introduced in 2012, Raise the Age was designed to transfer young people with less serious crimes to family court. The goal was to shrink the shadow of the legal system in young New Yorkers’ lives, particularly poor, working-class youth of color.

But despite receiving wide support from community groups and youth advocates, the bill languished in the State Assembly. And when public support for juvenile justice reform grew, the governor and those with vested interests in retaining the juvenile control complex sprung into action — eventually defanging the bill.

A first step occurred in 2014, when Cuomo created a “Commission of Youth, Public Safety and Justice.” He staffed it with experts vested in the system: state agency heads, prominent lawyers, senior law enforcement officials — and a sprinkling of foundation and nonprofit executives. A year later he launched a campaign to Raise the Age. While formally based on the commission’s recommendations, the legislation the governor proposed bowed to the designs and pressures of sheriffs, prosecutors, and conservative politicians. Organizations like the District Attorneys Association of the State of New York fought to expand the list of felonies that would require youth to remain subject to adult criminal courts and have permanent criminal records. Conservative Democrats in the State Senate did the same.

These efforts undermined the bill and those whose age was “raised.” While young people charged with misdemeanor arrests will automatically be transferred to family court, those charged with violent felonies involving “significant physical injury,” “display of a weapon,” or a “sex offense” will be prosecuted in specialized “youth parts” in criminal court. Some of these cases could potentially be transferred to family court, but district attorneys will still have unfettered power to send youth to adult courts whenever there are (undefined) “exceptional” circumstances.

Even worse, the bill leaves untouched the draconian Juvenile Offender Act of 1978, which turbocharged the punitive turn in the juvenile justice system. The act allowed the state to treat fourteen- and fifteen-year-olds as adults for a laundry list of felonies, from possession of a weapon on school grounds to burglary. Under the legislation, even thirteen-year olds accused of murder can be tried as adults.

Raise the Age also does little to change the collateral costs of being swept up in the criminal justice system. Most sixteen- and seventeen-year olds will still bear the scarlet letter of an adult criminal record. According to the Division of Criminal Justice Services, 3,063 sixteen- and seventeen-year olds were charged in 2017 with violent felonies that the new law’s passage would not affect. Raise the Age also imposes a complicated process for sealing juvenile criminal records, and increases the wait time for sealing felony records from three to ten years. This means that as young people transition into adulthood they will have a harder time accessing education, housing, and employment. And those most impacted by these changes, as in years past, would remain black and Latino youth.

Perhaps most perversely, the bill wouldn’t have even helped Kalief Browder. As scholar and activist Alexandra Cox notes, Raise the Age significantly raises penalties for many youth, particularly for those charged, as Browder was, with a violent felony (most of which never result in a felony conviction). If Browder were arrested today, he would still be treated as an adult and could even end up in the hellish situation of long-term incarceration.

New Forms of Confinement

Raise the Age advocates, relying on brain science research, argue that the adolescent mind is not fully developed until age twenty-five and that young people therefore don’t fully realize the consequences of their actions.

Following this logic, the bill created a new category of “adolescent offenders” that covers sixteen- and seventeen-year olds charged with violent felonies and sends them to separate facilities jointly regulated by the Office of Children and Family Services and the State Commission on Corrections. The new bill distinguishes between nonviolent and violent offenses, reflecting wider trends in criminal justice reform today.

Since the implementation process began on October 1, New York City has transferred an estimated one hundred sixteen- and seventeen-year olds from Rikers Island to New York’s two existing secure juvenile facilities: Horizons in the Mott Haven section of South Bronx and Crossroads in Brownsville, Brooklyn. Both of these facilities are operated by Association of Children’s Services (ACS), the main city agency in charge of child welfare. This leaves a large youth population at Rikers, since sixteen- and seventeen-year olds represent only one-fourth of the overall youth population held there.

It’s not clear that transferring young people from adult to youth facilities will produce “kinder” and more “humane” confinement conditions. Since the start of the current fiscal year, there have been 385 instances of Horizons and Crossroads staff using restraints on youth. The South Bronx facility has also been hit with numerous allegations of sex abuse and is currently being sued by a plaintiff who claims to have been sexually assaulted by a guard when he was fifteen years old. And despite attempts to showcase a modern facility with renovated units and brightly painted walls and murals, repurposing the facilities has layered on the symbols of imprisonment: barbed wire, hardened walls and doors, and guard posts. Visitors enter through metal detectors, young people wear uniforms, and the incarcerated are confined to windowless rooms.

Carceral staff is also being bulked up — Rikers guards and other correctional officers supervising adults will be transferred to Horizons and Crossroads. On Rikers Island there were roughly 147 officers supervising sixteen- and seventeen-year olds. That number will now double, and for the next two years they will work jointly with ACS staff in Horizons and Crossroads while new youth supervisors are trained. According to the president of the Correction Officer’s Union, Rikers guards will be the only ones permitted on night duty in the Bronx facility.

The use of correctional officers in the renovated facilities maintains the deep culture of violence that activists have long organized to end. Already, staffers have been called in to quell recent bouts of violence in Horizons, and have implemented various rules like limiting movement in the hallways and the right to carry and use pepper spray (previously banned by the state in this particular facility). These changes have already earned Horizons the name “mini-Rikers.”

The scramble by smaller and rural counties outside New York City to find places to incarcerate 16- and 17-years olds has been even more daunting and uncertain. New York City may be able to spend $300 million to build out its two existing youth facilities; no such funds and few facilities exist upstate.  Governor Cuomo did insert $100 million in the state budget to cover such costs but it won’t be enough, particularly given that the cost of confining a young person in a state facility can now run over $1,000/day. This is not a minor problem: 45 percent of recent arrests of 16- and 17-year olds took place outside New York City.

One solution being pursued is to repurpose and reopen state juvenile detention centers that had been closed as part of the “close to home” reform effort, which shuttered abusive and remote youth prisons and sent youth back to far cheaper facilities in and around New York City. For example, the grievously misnamed Harriet Tubman Center in Cayuga County, closed in 2010, will now be refurbished and reopened as a secure youth facility with a $12 million investment from the state and eighty-five newly hired employees.

The state has also committed itself to spending $29 million to expand a facility in Monroe County, and almost double that amount for detention centers in Livingston and Adirondack counties. Expansion of other county and nonprofit facilities has forged ahead as well, including proposals to truck in modular housing units as a stop-gap measure.

For many small and rural counties, however, the only solution will be to ship youth off to distant juvenile centers run by the state, other counties, or nonprofit agencies. These new and renovated complexes represent a reversal of the most celebrated of New York State’s reforms: the closing of sixteen state prisons and even more youth detention centers since 2009. Most importantly, despite the rhetoric of sparing sixteen and seventeen-year-olds from criminal justice involvement, many teenagers will continue to be confined and incarcerated in facilities that are indeed prisons.

Expanding the Carceral Net

The most striking impact of Raise the Age can be seen in the increase in court, police, and probation operations.

In Broome County, home of Binghamton University, the new county budget is dominated by the accouterments of youth incarceration. While social and human services continue to be cut even as an opioid epidemic rages, the Democratic County Executive in his recent budget speech outlined fifteen new positions for 2019, all tied to Raise the Age. One proposal to save money was to simply buy e-shackles for youth — something officials have also proposed in the far north because they couldn’t find a suitable detention center north of Albany. Officials in Tompkins county, home to Cornell University, simply note that the $7/day cost of incarcerating a youth at home with a shackle is far cheaper than $600/day expected at the revamped Hillbrook center.

A more insidious effect of Raise the Age will be the expansion of probation for adolescents. Legislators in both Lewis and Broome County have approved the hiring of more probation officers who will assess adolescents and transport them to other facilities. Tompkins County officials estimate that they will have to spend at least $300,000 on new probation officers and transport. Similar efforts are also underway in New York City to meet the increasing caseloads anticipated both in Family Court and the new Youth Parts in Criminal Court. These officers will supplement the hires made in recent years to staff the newly created specialized adolescent unit handling sixteen to twenty-four year olds throughout the city’s five boroughs.

We know that placing more youth on probation has high costs. Avoiding all contact with police — often one of the main conditions of probation — is difficult for many young people who live in tightly surveilled and heavily policed neighborhoods. Probation officers also tend to play a far greater role in Family Court than in adult courts. Probation officers working in Family Courts usually conduct the intake of youth and recommend the level of punishment — ranging from release on one’s own recognizance to imposing electronic monitoring, probation, and in the last instance, detention. Transferring the vast majority of arrests of sixteen- and seventeen-year olds on misdemeanor charges  to Family Court, instead of facilitating diversion or dismissal, will impose further punitive controls over youth.

In short, a minor arrest will now lead to greater scrutiny of young people’s lives by a host of state actors including prosecutors, judges and probation officers. Raise the Age Bill does very little if anything for adolescents charged with violent felonies. And it will expand surveillance and social control in the lives of youth charged with misdemeanors — youth who would otherwise have their case diverted or dismissed.

Less Is More

In the 1970s the criminal justice system was in crisis, and then as now the call for change was supported by both liberal and conservative reformers. The result was mass incarceration and mass policing. As juvenile justice reforms proceed today, we must ask: are we destined to unwittingly repeat this history?

Governor Cuomo casts Raise the Age as an integral part of New York’s quest to be “a progressive beacon for the nation” in the age of Trump. Yet it is hard to square this with the construction of new juvenile facilities, the expansion of existing ones, and the hiring of more probation officers, district attorneys and correctional officers. This is not a departure from the punitive past. In fact, it was reform that led the city to create its very own penal colony, Rikers Island. The design and construction of this and many other New York prisons, jails, and juvenile facilities are a testament to the results of carceral humanism, the call for “kinder” and more “humane” forms of punishment.

If there is a silver lining, it is this: the crude numbers of those imprisoned in adult and even juvenile jails has been steadily falling under vigorous public pressure. The number of youth arrested and sent into detention has fallen by 60 percent in the last eight years. We need to make sure these real gains continue — and are not undercut by new novel forms of probation, parole, e-shackles, and confinement. Our goal should be less incarceration and less social control of our youth, particularly the poor and working-class youth most affected. They deserve no less