A judge's view of Erie County's juvenile justice system
This Black History Month, WBFO took a look at the juvenile justice system with a woman who handles nearly all cases in Erie County, including a prison diversion program for youth in need of supervision.
Family Court Judge Brenda Freedman has been with the courts system since 2004 and was elected to the bench in 2016. She's served as the lead judge on the courts' statewide Task Force for Raise the Age — which raised the age for criminal responsibility in New York from 16 to 18 years old — and as director of the Aid for Indigent Prisoners Society and the Women's Bar Association of Western New York.
MORAN: I would like to get into talking about a couple of different issues regarding the juvenile justice system. And if we could just start with a general question for our listeners who may not understand the kind of cases you deal with in the system. Could you kind of give us an outline please?
FREEDMAN: Absolutely. So juvenile delinquency encompasses any kind of crime you can possibly imagine, from stealing from a store, maybe shoplifting, to assaulting somebody, fighting them, threatening to fight them, hurting them, to sexual misconduct, rape, sexual assault, things like that, to gun violence. And it involves youth between the ages of seven and 18. Until a couple of years ago, the cap was at 16 years old. And then the New York State Legislature raised the age of accountability to exclude some older youth from the adult criminal justice system, by making them juvenile delinquents.
When they did that, though, they created a very complicated scheme and a new court called the Youth Part. And they distinguished for 16- and 17-year-olds what kind of crime they were being charged with. And that determined which court they were going to. So a 16- or 17-year-old who was charged with a felony goes to the Youth Part, which is an Adult Part, but the Youth Part has the ability to transfer the case to Family Court so that we can treat it as a juvenile delinquent, or to keep it — if they think that it shouldn't be transferred — as a 16- or 17-year-old charged with a misdemeanor, which is the lesser kind of crime, is automatically considered a juvenile delinquent and comes to Family Court directly. So it's a little complicated, but that's what we're dealing with.
MORAN: You were on the Raise the Age Task Force. I believe you were the lead judge, as a matter of fact. It's still relatively early in terms of results, but what do you see so far?
FREEDMAN: Let me back up for a minute, because the goal of Family Court and dealing with juvenile delinquents is to rehabilitate them and prevent them from penetrating into the adult criminal justice system. You know, our whole focus is what does the youth need? What kind of services can we give? What kind of help can we give to this youth to keep them from being a criminal in their adult life, and we are pretty successful at doing that. The ones we're not so successful at obviously wind up in jail later in their lives. But the vast majority, we're very, very successful at keeping them out of that system. So this idea of Raising the Age was to say that we know our minds are not fully developed until we're 26, actually. So a 16- and 17-year-old really is a youth who is not utilizing all of the analyses and things that we have at our disposal as adults to comprehend consequences of their action, the harm they're causing to other people, etc.
I was neither a proponent nor opposing the legislation. I have nothing to do with whether or not laws are passed. But I think the concept was that we should be treating 16- and 17-year-olds as youth. But they realize that some of those 16- and 17-year-olds are acting like adults and doing really atrocious things in the community, which is why they provided this complicated mechanism for distinguishing. So that it's up to now the Youth Part to determine if this is a youth. Maybe it's your first offense, maybe it's a relatively minor offense. Maybe they were a minor actor. Maybe the whole event was horrible, but maybe they played a very minor role in that. And so for a variety of reasons, they can shift that case back over to Family Court to deal with them in this rehabilitative model. But if that's not the case, if they're entrenched in crimes, if it's a particularly egregious crime, if it's their ninth times through the system, things like that, then they can prosecute them as an adult and ultimately sentence them to incarceration.
MORAN: Interesting that you mentioned how new information has led us to understand that the mind isn't developed until a certain age. I recall a time I didn't know what ADHD was. I'm sure a lot of youngsters come through with those types of issues — anxiety, trauma, things along those lines. What type of resources do you have at your disposal that perhaps can be part of working to rehabilitate somebody, maybe setting aside the serious felonies that we were just discussing?
FREEDMAN: Again, our focus primarily is on the needs of the youth, taking into consideration protecting the community and the rights of the victim, of course, but we're very focused on what does this youth need. So we delve into their educational component. Are they in school? Do they need supports like tutoring? Do they have an IEP [Individualized Education Program]? Is it the right one? Do they need some kind of advocate to get them a better one or a different one or a 504 plan or something like that to give them educational supports? Do they need a tutor? We look at their mental health. Do they have diagnoses such as ADHD? Or something more specific? Or more egregious? You know, can we get them the right either cocktail of medications by getting a psychiatric evaluation with recommendations or get them into counseling? Can we educate the parent to make sure that they understand what these diagnoses are? And what the needs of this youth are? Long term? Is there a substance abuse issue? We'll evaluate for that. If they're using illicit substances, we will get them into treatment. Whether that's as an outpatient or inpatient depends on how severe the situation might be due. Is there an issue with empathy building? A lot of our youth, because of the limitations in their brain development, don't really have an understanding of what they did and how it harmed somebody else. And I believe very firmly that if they can put themselves in the shoes of the person who was wronged, they likely won't commit that thing again.
So we developed, some years ago, a restorative justice program for our juvenile delinquents. I felt very strongly about it. We were the first in the state. And now it's been rolled out in a variety of other jurisdictions because it's so successful. And not only empathy building. Sometimes it's also a matter of the relationship. Is the person they're harming their parent, for example. Maybe they're fine in school, fine in the community, but they're constantly fighting their parent and their parent is afraid of their kid. Can we build that relationship? So we can do something called conflict coaching, where we're coaching both the parent and the youth through this restorative justice model to develop their relationship better and to avoid further problems. We have resources to provide mentors in the community. Some of these youth either don't have a parent or don't have an active parent or just need another adult mentor. Do they need to be involved in extracurricular activities? Can they find something they enjoy doing, whether it's organized sport, or arts or drama or whatever it is? So we try to link them with those kinds of things.
Our older youth sometimes have bigger problems, in the sense that they might not have housing. So we try to link them with programs that can help them find housing. They might be parents themselves. So they might need resources as a parent if they've got young children of their own. So we're really taking a 360-degree look at this particular youth, analyzing what they need to be successful and trying to provide those supports to them.
MORAN: Are you satisfied these different avenues are working? Are you satisfied they're getting the results you want?
FREEDMAN: Well, I'm never satisfied because there are so many youth who are penetrating the system further right? I will say that Erie County has one of the richest service provisions of any of the counties in New York State. We have a lot more at our disposal than other counties and so I do feel very fortunate that we have that. And every year, we are looking to see what can we do more of, what unique need we haven't been addressing. I'm part of a coalition of stakeholders in juvenile justice. That's the prosecuting attorneys, the defense attorneys, the Probation Office, the Department of Social Services, the Office of Mental Health. And then we bring in others as we need, whatever project we're working on. And we are constantly looking to see what can we do better.
Right now, we actually have a new pilot that's in a very fledgling state. During COVID, something was happening that hadn't really been happening in great numbers before. Youth were stealing cars. We had huge numbers happening during COVID. So we developed a new program, starting with this population of kids who are specifically stealing cars, to do an intense program in three stages to look at their needs. Why is this happening? Why are they doing this? What harm did they caused to the family. Maybe they couldn't go to work that day, maybe they couldn't drive their kids to school that day. These kids aren't thinking about that when they're doing this. And then to also bridge the community situation with the relationship with law enforcement. That's an overarching theme, as everyone is aware of right now across our country. I don't have results to share. We only have our first set of youth going through the program right now. But hopefully a year from now, I'd be able to report that it's really helping.
MORAN: There are also a lot of studies about racial disparities inside the juvenile justice system, starting with arrests. How can the court deal with those types of disparities?
FREEDMAN: I can't do anything about arrests. That lies squarely with law enforcement. However, once the cases come into court, that is my responsibility to make sure that I am doling out justice blind to race, gender, socioeconomic groups, etc. I actually sit on a variety of committees and am involved in a variety of studies about this issue. Among other things, I sit on the community partnership of Western New York's panel for racial disparate representation in juvenile justice. Their committee is called Juvenile Justice Works. They brought in outside agencies for evaluations and discussions and we are now working fervently in some small work groups. I sit, for example, on the Buffalo Public Schools work group to bring restorative justice into the schools. And hopefully, ultimately, there will be a plan for the community that will really help all of us. It's absolutely an issue.
One of the things that we've seen in over time is that the fewer kids we're sending to detention into placement, the more the disparity rises. That is an interesting thing that needs further study. The big push for several years was to avoid, as much as we could, sending kids to detention and sending kids to placement, which we've been very successful at limiting those numbers. Now we're seeing that the numbers are more disparate. So we're trying to study that and figure out what the root cause of all of that is. Simultaneously, I sit on a bunch of other really important initiatives in the in the community. One is an anti-violence coalition from Back to Basics Ministry that's focused on youth violence in the community. He and I were trying to start a gang court in our juvenile delinquent court, but COVID intervened and we haven't been able to get it off the ground because most of court was happening virtually. I'm hoping we're going to be able to re-implement that concept. In any event, there is a lot of violence on the streets, a lot of guns on the streets with our youth. And so we're trying to figure out how to deal with that on a community-wide basis. I absolutely am committed to doing that.
I co-chaired, with the Buffalo Public Schools, an anti-bullying endeavor and then we made recommendations to the School Board. They adopted all of our recommendations and we were in the process of implementing them when COVID, again, intervened. I think that will go a long way, because a lot of what we see in the courts starts from relationships in the schools. Also, there's something called the Franklin H. Williams Commission that is devoted to bringing and promoting minority representation in the courts. I sit as a mentor judge to minority folks who want to become judges and try to help promote that.
MORAN: Is there something that we didn't get into in this conversation that you find particularly pertinent that you'd like to mention?
FREEDMAN: I want to explain a little bit about how a GED arrest works, because there's a lot of misunderstanding about it. Unless it's a very egregious crime and the law enforcement officers are keeping them in custody and wants me to put them in detention right away, those cases are a very small minority of cases. Most of them happen with something called an appearance ticket. It's sort of like if you're pulled over for speeding and you're not taken away in handcuffs, you're given a ticket to appear in court on a certain day. Except in juvenile justice, what happens is the user is given a ticket to appear, not in court, but at probation. The reason is there's a very elaborate diversion effort that's built right into the law. You have an opportunity, without ever coming to court, to resolve their case through the Probation Department and with the input of the victim and both families without ever having a case filed. In fact, our Probation Department resolves about 95% of appearance tickets that are issued for youth. So the cases I'm seeing are the top 5% of cases, either that weren't eligible because they were so egregious, the youth refused or they ran out of time or the victim refused or something happened and they couldn't resolve it. So 95% are getting the services they need without ever having to face a court. And that reduces the amount of trauma that youth face when they're dealing with whatever their misconduct was. It's really a wonderful system.
MORAN: Judge Freedman, I really appreciate you taking the time to go through all this. Thank you very much.