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New state law prevents prosecution of children under 12: DA Antonacci says more discretion is necessary

  • / Updated:
  • Rebecca Swift 

A new law signed by Governor Kathy Hochul earlier this year means children under 12 cannot be prosecuted in New York after December 31st.

Under the new law, local social services departments will be required to set up what’s known as a differential response program for those under the age of 12 who may have otherwise been charged as a juvenile delinquent. Those programs, which are subject to state review, are meant to connect children with proper mental-health care and other services rather than enter them into the juvenile justice system.

“That’s different from what it has been,” Cayuga County District Attorney Brittany Grove Antonacci explained. She recently sat down with to discuss the changes, and how they would impact prosecution. “It basically makes a black-and-white rule that individuals under 12 will not be arrested, even if they shoot somebody or cause serious physical injury.”

Antonacci says cases involving young children should be handled differently than the ones involving adults. Especially when simple charges like criminal mischief or petit larceny are in the mix. However, she says those cases should still be handled in family court.

“This law will effectively get rid of that,” Antonacci continued. “They will no longer be going to family court, they won’t be getting the resources from family court anymore. They will be going into this program that I don’t know much about, because it doesn’t exist yet. But that’s what this new law basically implements.”

Meanwhile, criminal justice reform advocates have been calling for this change. “When you criminalize young folks at an earlier age, they’re subjected to much more trauma,” State Sen. Jamaal Bailey said of the law after it was signed. “And our children, as resilient as they are as we’ve seen throughout this (COVD) pandemic, they can only bear so much.”

What does this mean for local prosecutors?

Antonacci says rigid, black-and-white rules like this typically comes with challenges on implementation. Under the guidance, children ages 7-12 will no longer be eligible to be charged as juvenile delinquents. Those between 13-18 will be eligible.

“I have never been a proponent of a black-and-white rule like that,” the DA explained. “I think there are situations, especially in larger cities, where you may get an 11-year old who is involved with a gang, who shoots somebody and may not kill them, but may cause serious injuries and they clearly need to be held accountable. That’s something that shouldn’t fall under that law, but it will. And that’s something that’s going to have to be address as the law gets put into place and you see more and more of those situations.”

She reiterated that there should be leniency for young people who make mistakes that don’t rise to the level or seriousness of charges like assault or worse.

“If you have a child who commits criminal mischief, who’s 10 or 11 years old, should they be put into handcuffs and dragged into family court?” Antonacci asked. “Of course not. But if you have a child who has a firearm, who is violent, who is robbing people, who is shooting people. That child needs to be held accountable and arrest needs to be made.”

The new law takes effect at the start of 2023.