Melissa Capalbo

Document Type




The box . . . . It’s a small room, so you really don’t move
around a lot. You wake up, and there’s a toilet right next to
your head. You look out the window and you see birds fly-
ing, and that only leads your mind into wanting freedom
more. And since it’s a small room, it makes you think cra-
zy. . . .Right now, I’m five-foot-seven. I grew. I came here
when I was five feet tall.

This is Rikers Island. The 19-year-old boy who shared his story is certainly not alone. Thousands of youth from throughout New York State grew up incarcerated on Rikers Island, which is among the “world’s worst” correctional facilities. Since its historic opening in the 1930s, the facility has been plagued by “drug use, corrupt correction officers, violence, squalor, [and] gang consolidation.” Yet, it is the same place that New York has allowed children to call their home for the last several decades. In 2015, Governor Andrew Cuomo raised awareness for the significant problem of treating “troubled kids” as adults and declared, in his Raise the Age campaign, that the minimum age for criminal responsibility “must change.”

In 2017, the New York Legislature raised the age of criminal responsibility from sixteen years old to eighteen years old but left a substantial loophole. The phrase “extraordinary circumstances” within its Raise the Age (“RTA”) legislation provides this gray area, as the statute reads, “[t]he court shall deny the motion to prevent removal of the action in [the] youth part unless the court makes a determination upon such motion by the district attorney that extraordinary circumstances exist that should prevent the transfer of the action to family court.” Since the Legislature failed to define what factors to examine or specify crimes that constitute such a finding, the phrase has been applied both broadly and arbitrarily. With little guidance, courts have examined factors such as prior juvenile history—in violation of the Family Court Act—as well as culpability—at odds with the presumption of innocence. Moreover, some courts have used mental illness as a way to entirely mitigate a finding of extraordinary circumstances, perhaps believing the juvenile justice system is more equipped to handle mental illness.

Part I of this Note will provide an overview of the history of the juvenile justice system using a four-wave approach, as categorized by the National Campaign to Reform State Juvenile Justice Systems. It will focus on New York specifically as it pertains to the fourth, and current, wave of reform. Part II will outline the problems caused by the Legislature’s failure to define “extraordinary circumstances.” It will detail the ways in which courts have struggled to determine factors to examine and how to use those factors, specifically focusing on prior juvenile history, culpability, and mental illness. Lastly, Part III will explore the possibilities for change through the lens of Connecticut and Pennsylvania’s RTA statutes, suggesting a set of appropriate factors to examine when deciding if extraordinary circumstances exist. Further, it will explore new ways to approach mental illness among alleged youthful offenders and suggest blended sentencing laws as a way to mitigate various problems associated with a preliminary assessment of culpability.



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