This case is a consolidation of eight juvenile delinquency proceedings for a dispositional hearing after a determination that each respondent has committed at least one act which, if committed by an adult, would constitute a crime.
In each case, the court requested that the New York City Department of Probation conduct an investigation into the juvenile’s circumstances and that a written report be prepared for the dispositional hearing.
The court discovered that the New York City Department of Probation employs a computer-based program which contains an inherent bias which results in more favorable and less severe dispositional recommendations being made to the Family Court for female juvenile delinquents than for similarly situated male juvenile delinquents.
In 1962, the Family Court was established as a court of statewide jurisdiction and it is vested with exclusive original jurisdiction over juvenile delinquency proceedings. When the Family Court Act was first adopted in 1962, there was no article dedicated exclusively to juvenile delinquency proceedings. Article 7 encompassed both juvenile delinquency matters and persons in need of supervision as held in Matter of Robert J. In 1982, the Family Court Act was amended and the provisions relating to juvenile delinquency proceedings were incorporated into a separate article of the Family Court Act.
Prior to the enactment of modern due process-based juvenile delinquency statutes, criminal conduct by children was primarily addressed through what were essentially non-adversarial proceedings in which children were not considered criminals. Because such proceedings were non-criminal in nature and brought on behalf of the child by the state as “parens patriae”, the traditional procedural safeguards applicable to criminal prosecutions were deemed inapplicable as in In re Urbasek and In re C.S.
After half a century of such informal proceedings and a recognition that the fond and idealistic hopes of the juvenile court proponents and early reformers of three generations ago have not been realized as placed in McKeiver v. Pennsylvania, a series of decisions by the United States Supreme Court, most notably the decision In re Gault, inaugurated sweeping constitutional reforms of the rights of juveniles in this country as seen in In re Dennis M. and Matter of Benjamin L. At or about the time of these Supreme Court decisions, the States proceeded to enact modern juvenile delinquency statutes which incorporated many of the constitutional protections applicable to adult criminal prosecutions as seen in McKeiver v. Pennsylvania, Breed v. Jones, In re C.S., In re Hezzie R., Ryan D.L. v. Wisconsin and State v. Rudy B.
At present, New York statute creates a binary quasi-criminal hearing process for the adjudication of juvenile delinquency charges as seen in Matter of Jose R. The first hearing is the fact-finding hearing or trial at which the prosecutor must establish by proof beyond a reasonable doubt that: (i) the accused is a person between the ages of 7 and 16; and (ii) that the respondent committed a sex act which, were he or she an adult, would constitute a felony or a misdemeanor defined by the Penal Law or by another statute or code.
Next, if the allegations of a petition or specific counts of a petition concerning the commission of a crime or sex crimes are established, the court shall enter a fact-finding order and schedule a dispositional hearing pursuant to section 350.1. In connection with the scheduling of the dispositional hearing, the court must order “a probation investigation” and it “may order a diagnostic assessment” pursuant to Fam. Ct. Act §351.1 .
The dispositional hearing must be conducted in accordance with the procedures set forth in Family Court Act §350.4, and only evidence that is material and relevant” is admissible at the hearing.
At the conclusion of the dispositional hearing the court is required to make specific preliminary findings. If the court concludes that the respondent requires supervision, treatment or confinement, the court shall enter a finding that the respondent is a juvenile delinquent and order an appropriate disposition pursuant to section 352.2.
Alternatively, although the court has previously determined that the juvenile committed at least one crime, if the court determines that the respondent does not require supervision, treatment or confinement, the court shall dismiss the petition akin to Matter of Jens P., Matter of Kyung C. and Matter of Ejiro A. Should the Court find that the juvenile is delinquent, Family Court Act §352.2 authorizes five dispositions of a youth who has been adjudicated a juvenile delinquent: conditional discharge, probation, placement with OCFS, placement in a mental hygiene facility and, in the case of a juvenile who has committed a designated criminal felony, restrictive placement pursuant to Family Court Act §353.4″.
It was held in Robert J., Matter of Jose R., Matter of Benjamin L. and Matter of Jermaine G. that the overriding intent of the juvenile delinquency article is to empower Family Court to intervene and positively impact the lives of troubled young people while protecting the public. Consistent with the goal of providing delinquent children with treatment designed to achieve rehabilitation as in Matter of Quinton A., Matter of Carmelo E. and Green v. Montgomery, the statute contains no preference for any particular dispositional alternative and it directs that in determining an appropriate order the court shall consider the needs and best interests of the respondent as well as the need for protection of the community.
It was held in Matter of Raymond that unless the juvenile has committed a designated sex crimes felony act, one of the more serious and frequently violent acts of juvenile delinquency, which may subject the juvenile to a longer and more secure type of placement, the court is required to order the least restrictive available alternative which is consistent with the needs and best interests of the respondent and the need for protection of the community.
It should be noted that two interests at stake — the needs of the child and the needs of the community — are presumptively entitled to equal weight akin to the rulings in Matter of Todd B., Matter of Timothy C., Matter of Pedro A., Matter of Aaron P. and Matter of Horan A.
In determining the most appropriate dispositional alternative in a juvenile delinquency case the Family Court has access to the services of the Department of Probation and, if appropriate, the services of the Family Court Mental Health Services Clinic pursuant to Fam. Ct. Act §§251; 252.
It should be noted that the state probation regulations specify the “evaluative analysis” which must be undertaken by the Department of Probation in connection with its dispositional recommendation.
That section of the regulations reads, in pertinent part, as follows:
(4) Evaluative analysis.
The evaluative analysis is not a restatement of facts but a synthesis of the significant information reported previously in the document. No new information is to be introduced into this section. The evaluative analysis section shall contain a brief opening statement of the matter before the court and any specific legal considerations for disposition/sentencing. This section of the report shall provide a succinct analysis, relevant to decision making, of the probation officer’s assessment and conclusions from the information gathered throughout the interview and the investigation process. The evaluative analysis shall include the following elements:
(i)analysis of legal history, including present offense/act;
(ii)impact of the present offense/act on the victim(s) and community;
(iii)analysis of past and present behavior patterns as they contribute to current legal situation;
(iv)analysis of current social circumstances and triggers as they contribute to current legal situation;
(v)analysis of risk factors and potential for future recidivism;
(vi)analysis of criminogenic need areas;
(vii)availability of community, family, and individual protective factors and treatment resources to address the criminogenic risk and needs; and
(viii)assessment of potential for lawful behavior.
(5) Recommendation. This section of the report shall contain a statement concerning the type of court disposition/sentence recommended, which shall be consistent with law, and shall flow logically from the evaluative analysis.
(i)Special conditions: when a period of probation supervision, interim probation supervision, or conditional discharge is recommended, any recommended or required special conditions shall flow from the evaluative analysis and, in accordance with law, support reparation, public safety and offender account-ability. Special conditions shall be specific to the offense/act and the offender, and shall focus on:
• criminogenic risk reduction;
• offender compliance with State and Federal laws;
• measures to ameliorate the conduct which gave rise to the offense/petition, or to prevent incarceration or placement;
• addressing social, educational, vocational and treatment needs;
• incorporating special offender requirements, where applicable, such as sex offender registry, ignition interlock, and electronic monitoring;
Whether any or all of the concerns relating to the ability of OCFS to address the needs of juvenile delinquents who require institutional placement are valid, and whether there should be a shift towards non-placement community based alternatives in juvenile delinquency cases are public policy questions, and the place for the expression of the public policy of New York is in the Legislature, not the courts as held in Martinez v. County of Monroe and Hernandez v. Robles. Nevertheless, because these public policy concerns have impacted upon the current functioning of the juvenile justice system, including executive action undertaken without legislative approval, and because some parties calling for reform appear to have a vested interest in the continuation of specific programs, these matters of public policy must at the very least be acknowledged.
Both the federal and state constitutions guarantee equal protection to all persons although the New York Equal Protection Clause is no broader in coverage than the Federal provision as held in Hernandez v. Robles and Samuels v. Department of Health. Classifications must be reasonable, not arbitrary, and must rest on some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike akin to Reed , Lehr v. Robertson and Matter of Patricia A.
The Supreme Court has held that classifications based upon sex crimes, like classifications based upon race, alienage, and national origin, are inherently suspect and must therefore be subjected to close judicial scrutiny.
Because classifications based upon gender are frequently based upon dated and “overbroad generalizations as in Schlesinger v. Ballard, and Parham v. Hughes and classifications based upon gender, not unlike those based upon race, have traditionally been the touchstone for pervasive and often subtle discrimination, the courts have applied an intermediate level of scrutiny under which the government must demonstrate that the gender-based classification is substantially related to the achievement of an important governmental objective.
The criminal court is obligated to exercise its considered judgment as to the appropriate order of disposition, even where the public officials responsible for carrying out that order will decline to do so based upon fiscal concerns.
The Probation Assessment Tool created by the Vera Institute of Justice and the New York City Department of Probation, which is currently being utilized by the Department in formulating dispositional recommendations in juvenile delinquency proceedings, impermissibly discriminates against juvenile males by awarding a preference to delinquent females in the form of asset points based solely on the immutable fact of their gender.
The records of these proceedings contain no evidence as to the scientific or sociological validity of the gender-based preference, and the court cannot simply assume that the data underlying the PAT program justifies its disparate impact. While it may be argued that male juvenile delinquents are more likely to commit further crimes if released to the community or if released to the community without probation supervision, nothing in the juvenile delinquency statute permits the Court to act upon that proposition, even if statistically correct. Similarly, the Court cannot simply assume that female delinquents are less likely to commit further crimes if released to the community and that female delinquents do not usually require probation supervision, let alone placement out of the community. Such gender- based presumptions cannot replace the individualized assessment of the needs of each juvenile along with an assessment of whether the community requires protection from a child. The test for determining the validity of a gender-based classification is straightforward and it must be applied free of fixed notions concerning the roles and abilities of males and females.
In the case at bar, the Department of Probation has adopted a gender-based classification relating to its function to investigate and report to the Family Court, and its duty to make a recommendation as to the appropriate order of disposition in juvenile delinquency cases.
Here, the government applies a gender-based approach; it bears the burden of demonstrating that there is an exceedingly persuasive basis for the gender distinction. The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females as held in United States v. Virginia.
It should be noted that there has been no showing that the PAT is based upon valid data and it appears that the PAT program is essentially structured upon the assumption-which may be valid-that a certain population of juvenile delinquents pose less of a threat to the safety of the community than others. Nevertheless, the calculation of a “total asset score” by a computer does not relieve the Family Court from making an individualized assessment as to the needs and best interests of the juvenile and the need to protect the community. In fashioning an appropriate order of disposition, the Family Court may consider the recommendations made by the Department of Probation or the recommendations of a psychologist who has evaluated the respondent. The Court, however, is never bound to follow any particular recommendation as held in Matter of Erika R., Matter of Jasen P.M. and Matter of Dennis ZZ.
If the Criminal Court simply followed the recommendations of the probation department in these cases, the result would have been unwarranted harsher treatment of some male delinquents and unwise and unjustified lenient treatment for some of the female delinquents. In either event, the outcome would have been absurd and in some cases reckless.
In the case of Geraldine A. who was found to have participated in an unprovoked group assault upon two victims, the initial recommendation was that she be granted an ACD. However, it was subsequently discovered that Geraldine A. was failing most of her classes at school, that she occasionally missed school and was in need of supervision, and the Court placed her under probation supervision. In that case, had Geraldine A. not been awarded 14 points by the PAT computer program for gender, her total asset score would have been too low to result in an ACD recommendation. In the case of Tiffany H. the child was found to have brought a large kitchen knife to school.
While the initial recommendation was for an ACD based upon her PAT total asset score of 36, it was later learned that Tiffany H. regularly cut classes, that she had multiple suspensions from school, and that she was not passing her classes. The PAT score was bolstered by the 14 points Tiffany H. received for gender and the 11 points she received for good school attendance, although her school attendance was obviously very poor. Tiffany H. was thus placed under probation supervision.
Jaskarnjit S. had been found to have committed an act which were he an adult would have constituted misdemeanor assault. The initial probation recommendation was that the juvenile be placed under probation supervision based upon a PAT score of 21. Jaskarnjit S. received no points based upon his gender or age, although he had good school attendance and performance and no history of school suspensions. Because there was no information indicating that the juvenile required supervision by the Department of Probation, he was granted an ACD, as a similarly situated female delinquent, who would have been awarded an extra 14 asset points, would have received a recommendation for an ACD. Jaheem S. had been involved in the robbery of a cell phone. Information received during the pendency of the case indicated that the juvenile was a sex crimes behavioral problem at school, he had experienced a decline in his academic performance as well as school suspensions. Respondent’s PAT total asset score of 21 resulted in a recommendation that he be released to the community with intensive supervision or that he be placed in OCFS custody, but the Court placed him under probation supervision because a similarly situated female would have been awarded 35 total asset points and an ACD recommendation.
Stephen C. was involved in the attempted robbery of an I-Pod and money along with four others. The victim was hit and kicked when he resisted the theft of his property. Although the underlying charges were serious, the information received indicated that Stephen C. had no prior contact with the law, that he was involved in pro-social community activities, and that he is a special education student who has some school attendance issues and he has been suspended from school for fighting. Stephen’s PAT score was reported as 26 points which resulted in a recommendation for general probation supervision. Had the PAT program awarded Stephen C. an additional 14 asset points for gender, he would have had 40 total asset points, which would have undoubtedly resulted in an ACD recommendation. Based upon the information available, which included family dysfunction, the Court placed Stephen C. on Enhanced Supervision probation. Jennifer S. who was an accomplice of Stephen C. was also charged with robbery. Jennifer S. received a PAT score of 38 points which corresponded to an ACD recommendation. However, the PAT score was bolstered by the award of 14 points for Jennifer’s gender and 3 points for her age. Had the 14 additional asset points not been awarded, the respondent’s PAT total asset score would have been 24 points with a corresponding recommendation for criminal probation supervision. While Jennifer S.’s circumstances were somewhat less severe than Stephen’s, her individual circumstances indicated a need for supervision in the community, and she was placed under general probation supervision.
Anastasios K. had been involved in the non-forcible theft of cash from a livery cab driver. While Anastasios K. had attendance and behavioral difficulties including multiple suspensions at his previous school, his mother secured his transfer to a new school and his attendance and academic performance had significantly improved. Anastasios K. also had another prior theft arrest which was resolved without prosecution by his admission in this case. Respondent’s PAT score was 16 total asset points, which corresponded to a recommendation of intensive probation supervision, but the probation officer overrode that recommendation and instead recommended that the juvenile be placed away from home. The psychologist who evaluated Anastasios K. “cautiously” recommended that he be allowed to remain in the community with intensive supervision and psychological counseling and medication, as his school performance and behavior had improved significantly and there were adults in the home to supervise him. Based upon the current information, respondent was allowed to remain in the community under strict conditions of probation. Finally, Lee Ann H. committed petty theft. Although the probation department received information that Lee Ann H. was psychologically disturbed, she did not attend school regularly, was a behavioral problem at home, abused marijuana and alcohol, frequently ran away for lengthy periods of time, was beyond adult supervision, and that her mother was dysfunctional and unable to properly supervise her, the PAT program granted Lee Ann the astounding total asset score of 35 points which would have corresponded to an ACD recommendation. The probation department appropriately overrode the PAT generated recommendation and instead recommended that Lee Ann H. be placed under intensive probation supervision or that she be placed in OCFS custody. Based upon the information available, including the recommendation of the psychologist, the Court concluded that Lee Ann H. could not be maintained in her community and she was placed in OCFS custody. Clearly, the PAT computer program was of little utility or guidance in this case, as reflected by the override made by the Department of Probation.
Thus, in the cases of Geraldine A., Tiffany H., Jennifer S., and Lee Ann H., the PAT computer program produced total asset scores which, when bolstered with additional asset points based upon the juvenile’s gender, and on a few occasions her age, corresponded to ACD recommendations, while the PAT generated scores in the cases involving the male delinquents all corresponded to recommendations of probation supervision or placement with OCFS. Except for the fact that Stephen C. and Jennifer S. were accomplices, none of these cases presented identical facts, yet the PAT computer program mechanically treated each delinquent in a “one size fits all” approach driven by the happenstance of the child gender.
Each of these eight juveniles is a distinct individual with a unique family and personal circumstances. The Court was required to assess the needs of each particular juvenile delinquent, without any preconceptions related to the child’s gender or any particular characteristic such as, for example, his or her race, ethnicity or citizenship, within the framework of the available dispositional alternatives provided for by the statute. While the PAT computer program supposedly seeks to foster more uniform outcomes in juvenile delinquency cases, the PAT program overemphasizes certain often irrelevant factors and it completely fails to consider relevant facts. As presently designed, the PAT computer program would render Family Court Judges little more than mechanical magistrates who would impose a specified disposition based upon a computer generated score which often ignores the reality of a particular child’s circumstances.
The Sex Crimes Court has met its obligation to impose the most appropriate order of disposition in these cases on an individual basis, notwithstanding the discriminatory impact which the PAT computer program has upon male juvenile delinquents. In that regard, it is obvious that female juvenile delinquents are equally ill served by a computer program which inflates their total asset score solely based upon the accident of their gender, so as to minimize the possibility that they will be placed away from home or subjected to supervision by the Department of Probation. By creating a system of internal gender discrimination against males, the PAT computer program also creates the very real possibility that female delinquents will receive less services or less supervision than they should, which itself creates an unnecessary risk of recidivism as well as an unnecessary risk to the safety of the community. Ultimately the specifics of any reform of the juvenile justice system are a matter for the Legislature to decide in its collective wisdom. There are many competing interests at stake and the judicial system is not the proper forum for determining the priority of these interests.
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