Judges, probation officers say changes to juvenile justice system could hurt youth who need help / By Maria Sprow

Say there ’s a 14-year -old who ref used to go to school. He instead spent his time with a group of trouble-makers called the Mexican Mafia, raking up non-violent offenses. He was convicted of theft and placed on probation for three months, during which time he was caught with marijuana, and drug tests showed he was using heroin. He was again placed on probation and spent six months with a community drug treatment program. He was caught spray painting graffiti on a public building and was convicted of property destruction, and when the judge asked him why he wasn’t in school at the time the offense was committed, the kid said it’s not his job to be in school; he’s a front man for the Mexican Mafia, and that’s his job.

So the judge, recognizing that the kid hasn’t committed any violent or dangerous offenses yet but is on the fast track to doing so, decided to put him in a residential placement facility. There, the kid started a fight with another juvenile and then with staff, and the judge reached her wit’s end. The kid, who had only been convicted of misdemeanor crimes, was discharged from the placement facility and sent to the Texas Youth Commission, where despite some setbacks for poor behavior, he attended classes, received counseling, studied carpentry and stopped using heroin.

At 18, he was ready to be released. Through years of rehabilitation, he was able to find a job, stay out of trouble and live a mostly crime-free existence.

In Texas’ Juvenile Justice System, the Texas Youth Commission has long been the end of the road, the last stop on the progressive sanctions ladder, where youth are sent for one last shot at rehabilitation when all other attempts have failed.

Since its formation, TYC has been a valuable juvenile justice tool for judges in the state. Even after measures were taken in the 1990s to divert juveniles away from lock-up, TYC facilities stood as an imposing credible threat for at-risk youth: ‘Yes, you’re 14 years old, but be good or go to prison.’ While the threat is real – the facilities are lock-down jails where kids wear orange jumpsuits – TYC’s mission has never been punishment, but rehabilitation, to persevere and keep fighting. A child enters a youth commission training facility, goes through the necessary rehabilitative programming and doesn’t get out until he or she is successful. It doesn’t always work out that way – occasionally a juvenile behaves so poorly that they land in the adult prison system – but that’s the idea.

But TYC had a rough year, and that’s being overly kind. After news of sexual abuse and cover-up scandals surfaced and it became apparent just how mismanaged the commission was and how much more oversight was needed, legislators ripped the commission a new one. The agency’s board was shamed, scolded and dismantled, directors and managers were forced out of their positions and hours upon hours were spent discussing the evils that lurked behind TYC walls. It got ugly, but many of the changes that are in the TYC reform bill, Senate Bill 103, have earned praise for their necessity. The comprehensive legislation accomplished a “complete restructuring and rebuilding of TYC from the bottom, up,” said Senator Juan Hinojosa, who authored the TYC changes.

But two parts of the bill have left some juvenile judges and probation officers around the state anxious. First, multiple misdemeanor convictions can no longer result in a TYC commitment, which some worry could leave hundreds of juvenile offenders with no place to go and without hope of rehabilitation unless they start committing more serious crimes. Second, juveniles must be released from TYC at the age of 19, instead of 21, which could result in more juveniles being certified as adults and going straight to jail or not having the time to be fully rehabilitated by TYC and ending up in jail anyway. The recent changes were the result of a push by legislators to decrease the number of commitments to TYC and divert youth into more community-based programs.

Legislators backed up the legislation by providing the Texas Juvenile Probation Commission an additional $57 million in an effort to help the displaced youth.

“TYC is broken right now, it needs some breathing room to put in place the restructuring and changes,” Hinojosa said.

But juvenile justice professionals are worried that when community- based programming options run out, juveniles may end up lost without TYC resources and services as options. When judges, prosecutors and probation officers have already placed a youth in the best community programs available, and when youth have already been through multiple placement facilities, there no longer appears to be a next step, said Vicki Spriggs, executive director of the Texas Juvenile Probation Commission.

“If it works, then they’ve done a great thing,” Spriggs said. “If it doesn’t work...” She trailed off.

One Less Tool in the Box

Throughout public testimony, legislators heard anecdotes and tales of youth sent to TYC for graffiti and other seemingly minor offenses, and the legislation is based on the principle that those convicted of misdemeanors do not deserve to be locked up and are better rehabilitated in their communities; a case of the punishment not fitting the crime.

“There were too many judges in counties taking the easy way out with misdemeanor juveniles and sending them to TYC,” Hinojosa said. “We are trying to exhaust all local options.”

But judges already are exhausting local options. “It’s simplistic to say misdemeanor offenders can be helped with community-based programming,” said Jill Mata, the chief of the juvenile section in the Bexar County District Attorney’s office.

The previous system required juveniles be convicted of at least three misdemeanor offenses and placed on probation twice before TYC became an option. By that time, most local options have been exhausted.

“We had a child in court for possession of marijuana, twice. He was testing positive for heroin, chronically. We sent him to rehab, twice. There were motions to revoke his probation because he’s out in the street, in violation of his probation… he finally gets sent to TYC on his third misdemeanor offense, but all he’s been convicted for is possession of marijuana,” Mata said. “These are the cases that were almost being made fun of during the session, but that’s not why he got sent to TYC. He got sent because he is a heroin addict.” David Reilly, the chief probation officer at the Cyndi Taylor Krier Juvenile Correctional Center in Bexar County, said he believes legislators overreached with the part of SB 103 that disallows misdemeanants to be committed to TYC, calling it “bad policy.”

In many cases, Reilly said, these are youth who have been through every community-based program available. “The misdemeanor offenders who go to TYC are typically chronic offenders. They are just not going to comply,” he said, adding that juvenile judges only have a limited number of tools and sanctions to use before they run out of options, and not allowing misdemeanants into TYC is just one less option for judges.

But Texas isn’t the only state that has opted not to send its misdemeanant youth to long-term lock-down facilities away from their hometowns.

“Globally, when you look at it from the big picture, if they are not found guilty of a felony offense, the question is, should they be there (in TYC)?” asked Mike Griffiths, the chief probation officer in Dallas County.

The hanging question is not rhetorical, but there just hasn’t been a consensus as to the right answer, despite the SB 103’s inherent positioning on the issue.

Some research indicates that kids do better when they feel their punishment fits their crime and their environment is appropriately secure based on the offense.

“What we are really seeing is a three strikes and you’re out policy with kids, and I don’t think it’s appropriate,” said Isela Guttierrez, with the Texas Criminal Justice Coalition, which worked on the legislation. She compared the different possible sanctions in the juvenile justice system to medicines used to treat illnesses. Misdemeanor offenses, for instance, aren’t cancer and shouldn’t be treated with chemo; they are more like the flu and just need some time and tender loving care.

Others, like Reilly, argue that the juvenile system is meant to treat the child and the child’s lifestyle, not the offense. “It’s a myth in the system that the level of intervention that is needed should be based on the offense. That’s just garbage,” Reilly said, adding that “it is taking away the discretion of the local judges” who have the ability to take into account other aspects of the juvenile’s lifestyle, not just the crime for which he or she was convicted.

Spriggs, with the TJPC, said she understands the intentions of the Legislature but doesn’t think the provisions will get the results policy makers want to see.

Since the TJPC was formed, its goal has always been to divert kids away from TYC; that’s written in statute, and Spriggs said the organization and juvenile justice system have taken that mission to heart, giving faith and first preference to community-based programming and doing what they can to not lock kids up. There’s a strong systematic belief that the most cost-effective, successful intervention is community-based, and that TYC is a last resort.

Despite the tone during the legislative session that TYC had been overused, the statistics show otherwise. In 2005, there were 18,435 juvenile offenders who were eligible for TYC commitment, and only 2,675 who were committed. Of those, 799 were committed on a misdemeanor offense. Of those, 409 were committed due to multiple misdemeanors and the remainders had prior felony convictions. The 799 misdemeanants may be replaced by a larger felon population, if judges feel pressure to reserve their community-based resources and funding for misdemeanants.

“Those felons will now be committed to save the communitybased services funding for the misdemeanor kids who are already down the pike, who are coming down in through the system,” Spriggs said, adding that the courts, and not the Legislature, is the best place to make the determination of how to reduce commitments to TYC.

Judges and prosecutors have been focusing on community-based solutions for their misdemeanants for years, and more so since the legislative session started. Still, it’s problematic not to have TYC as an option.

“I had a meeting this afternoon with some of my key staff and we are trying to figure out how we are going to adapt, because there really are kids who need to have some time in a locked facility. They repeat, they repeat, they repeat,” said Denton County Court at Law Judge Darlene Whitten. “Citizens are not really happy even now to see repeat offenders put back into the community.”

County detention facilities just do not and cannot offer the same services as TYC. Those who think of the TYC training centers as prisons or lock-down facilities are forgetting that the commission’s arts, writing and music programs, workforce development and technology training, educational programs and parenting programs for teen mothers.

“You can be excused unsuccessfully from a county program or a county detention facility,” Whitten said. “But you cannot just be excused from TYC. You’ve got to successfully complete the pro- gram, so there’s a little more leverage to use for kids who go through TYC. … TYC has saved a lot of kids.”

As part of the progressive sanctions system, TYC serves as a valuable “credible threat” for judges to use to motivate juveniles to comply with probation and community-based programming requirements. Without that motivation to comply, some are worried that youth will not choose to modify destructive behaviors.

“If a juvenile gets into a fight at a county facility (before), we would discharge that person and send them to TYC. But if he gets into that same fight (now), we’re not real sure what we’re going to do or how we’re going to strategize. We may send him to a different facility, or keep him in the same facility. If we keep him in the same facility, what message are we going to be sending?” Whitten said last month. “What can we do to let them know that if they mess up again, there’s something worse that can happen?”

Unlike some other placement programs, an additional benefit to TYC is that the facilities cannot turn away juveniles who have a history of anger or sexual assaults, or other dangerous behavior such as cutting themselves or starting fires.

“There are no places that will take those juveniles,” said Bexar County Juvenile Judge Laura Parker. “You can get them into a mental hospital for three nights, but then what? As long as places can refuse to take kids, we are going to be in that bind where there are no facilities for these truly violent kids who have committed misdemeanors.” The reforms impact more than just the youth commission and the strain on community-based programs, added Parker, who predicts that there will be fewer plea agreements in the future, since prosecutors and judges will be concerned about public safety and will want to preserve TYC as an option as much as possible. That would result in more trials and in counties spending more on court-appointed counsel.

“It’s a defense problem as much as it is a prosecution problem,” Parker said. “More kids will get adjudicated of a felony in a case that would have been reduced previously, and probation terms for felony offenders will be a lot longer, just so the option of TYC will be available if they don’t do what they are supposed to do.”

Is jail now the last stop for juveniles?

Legislators also had their reasons for lowering the maximum age of TYC commitments from 21 to 19. Chief among those reasons were that the young and poorly-trained guards at TYC were sometimes overseeing inmates who were older than they were, or the same age, and the closeness in age lead to several of the sexual misconduct allegations that eventually became public. Older inmates were also seen preying on the younger kids and separating the different age groups was a logistical problem.

“I got the feeling that a lot of people in Austin felt like if you are 19 and you haven’t been rehabilitated, you should probably be in prison anyway,” said Parker, from Bexar County.

The solution is predicted to have consequences within the juvenile court system. Shannon Edmonds with the Texas District and County Attorneys Association said prosecutors have rarely used adult certifications on juveniles in the past. But he also predicted that more juveniles will be standing trial as an adult and entering the adult prison system thanks to the changes. Prosecutors do not want to be responsible for juvenile offenders who are convicted of felonies at 16 or 17 years of age and who are then released into the community when they turn 19 without fully rehabilitating in the Texas Youth Commission. They also do not want to see flailing juveniles given up on and given an automatic pass into the adult prison system just for turning 19 The first option means that juveniles may not have completed their rehabilitation entirely and could be more at-risk for criminal behavior; the second scenario means that the rehabilitation work done by the TYC could be undone in the punishment-based adult system and that the juvenile gets into the adult prison system without ever having had to stand trial as an adult.

“Since prosecutors and judges knew that a child could stay at TYC potentially until they were 21, say a juvenile is 16 when they commit the offense, that would still give them quite a bit of time to work the program at TYC and to be both punished and rehabilitated,” Edmonds said. “When you have kids that don’t get their cases disposed of until they are 17, and then they can only stay at TYC until they are 19, that shortens the window for rehabilitating them at TYC.” If more kids are certified as adults, that would no doubt change those kids’ lives. Judge Parker has recieved a lot of positive feedback from youth sent to TYC, including two letters on her desk at that moment. In those two letters, the youth wrote about how being sent to TYC was “the best thing I ever did for them,” she said.

The first letter was from a juvenile, now 18, sent to TYC for armed robbery when he was 16. In TYC, he received his GED, learned how to be a carpenter and was working toward his welding certificate. “He’s making the most of what’s being offered to him,” Parker said, adding that under the new system, because of his age, he may have been certified to stand trial as an adult and have been sent to the adult prison system.

The other letter was from a 20-year-old who had been convicted of aggravated sexual assault when he was 16. He was sent to TYC, but TYC officials recommended he go to prison because he wasn’t progressing. Judge Parker issued an order that TYC keep him and assign their most experienced therapist his case; his letter said he was finally improving. Parker was left worrying what will happen to him now that he is no longer allowed in TYC.

“Is he going to be allowed to finish the sexual offender treatment now?” she asked, adding that she didn’t think the system should give up on someone who is actively trying to improve. “Kids are not just there serving time, they are finishing high school, they are getting their GED, they are working through these various offender programs, and you can’t just go there one day and say, ‘Okay, you’re 19, you’re out,’ because maybe they are just getting to a breakthrough.” It’s possible both issues will be re-examined in two years, after TYC has had its time to repair its wounds and rebuild.

In the meantime, Hinojosa said, there is actually a lot for county juvenile justice departments and personnel to do, including figuring out how to spend the additional $57 million given to the Texas Juvenile Probation Department to go toward placement beds and community-based programs.

“I do not believe in giving up on our young people. We have to do all we can to help them, and it is a challenge, there is no doubt about that,” Hinojosa said. “To set up the proper treatment programs for juveniles, you have to be very patient.”

Even before news struck about the sexual abuse allegations and cover-ups at various Texas Youth Commission facilities, many of those involved in the juvenile justice system in Texas were preparing for a legislative session in which they hoped delinquent youth would be provided more lower sanctioned community-based non-residential and residential rehabilitation programs, keeping them out of the lock-up state facilities.

Those waiting got their wish – legislators increased funding to the Texas Juvenile Probation Commission – which helps support the county juvenile justice system until a child is sent to TYC – for the next biennium by $57.3 million, or 21 percent. That money is to be distributed to counties sometime after Sept. 1.

Part of the additional funding comes from the Texas Youth Commission budget, which received $20.5 million, or 4 percent, less than in the 2005 session. The lowered TYC funding was based on dropping the average daily population at commission facilities from 4,244 to just 2,292, the result of a drive to divert repeat misdemeanant offenders away from the facilities and to community- based programming.

In its funding for the probation commission, the Legislature estimated more moderate changes. According to the approved state budget, the Legislature believed 87 percent of youth would successfully complete their court-ordered probation, as opposed to the estimated 83 percent in 2005. The Legislature also estimated that the daily population inside county residential placement facilities – a step before the TYC facilities on the juvenile justice system’s progressive sanctions ladder – would rise from 3,218 in 2007 to 3,875 in 2008, giving the probation commission and counties an additional $35.4 million to help fund that increase. So the Legislature estimated that in 2008, there would be 1,952 less youth in TYC facilities each day, but only 657 more youth in placement facilities. Nobody is predicting juvenile crime trends to suddenly decrease or change, so that leaves approximately 1,295 youth whom judges formally believed needed long-term, lock-down residential treatment … where?

During the session, legislators made it clear that the best help for these leftover youth – presumably repeat misdemeanor offenders – should be found within their own county. Besides that additional $35.4 million, the Legislature set aside an additional $8.7 million for intensive and specialized supervision and sex offender treatment services and $13.8 million for communitybased services specifically designed for those misdemeanants diverted away from TYC. One problem faced by counties is that the bill went into affect immediately after Gov. Rick Perry signed it on June 8; the additional funding for community-based programs won’t be available until months later, and counties will have a hard time expanding or building the programs until after funding has been assured.

In June, the probation commission was still determining how the money would be disseminated and what rules would be attached to the funding. Linda Brooke, director of governmental relations for TJPC, said she did not expect the commission would make any decisions regarding the funding until its July or August board meetings. She speculated that the $8.7 million would be distributed on a formula-driven basis, while the $13.8 million may be more grant based and the $35.4 million may be reimbursement based.

Many county juvenile judges have been diverting misdemeanants away from TYC since the legislative session began, meaning there’s already been a heavier strain on community-based programs. That’s especially true in rural counties, many of which have very few community-based services to which to turn. Those areas will likely have to build programs from scratch or work with their neighbors to take a regional approach to juvenile probation services.

TJPC Executive Director Vicki Spriggs said the commission recognizes the significant challenges faced by rural counties needing more community-based programming and said she hopes all counties focus on finding regional juvenile services solutions. “Our probation departments have Regional Chief Probation Officer Associations, and we have asked them to use those regional chief associations to look at the services that are missing in their areas,” Spriggs said. “With these new monies, what can you do to get what you need out of it in your area? Working together is the best way to leverage the dollars that are out there.” It seems most urban county juvenile probation departments are open to the idea of sharing their programs, but not their placement beds. Dallas County Chief Probation Officer Mike Griffiths, for example, said he believes an informal cooperation will be necessary to aid rural juveniles, but he also said Dallas County can’t afford to give up its placement beds, and in fact, will need more beds reserved for its juveniles who are repeat misdemeanor offenders and who can no longer be sent to TYC facilities thanks to recent legislative reforms.

The sentiments of wanting to share resources but being unable to share beds because of increased demand echoed those from his peers in Bexar and Tarrant counties.

“We can get providers to be more interested in working with the smaller counties, if they know they are also going to be working with the larger counties,” Griffiths said.

Prior to the session’s start and before information about the sexual abuse scandals became public, Griffiths said his county had predicted legislators would be looking for ways to divert youth from TYC.

The discussions were strategic and solutions focused on re-opening dormant facilities, expanding current programs and operating an effective day reporting center.

But they hadn’t addressed the major problem faced by counties now – the issue that most of the repeat misdemeanor offenders now being diverted from the TYC have already been through multiple community- based programs and county placement facilities, and were not rehabilitated by those options.

Several juvenile judges said they had only been using TYC as a last resort for all their offenders, whether convicted of misdemeanors or felonies.

In Bexar County, for example, 77 misdemeanant youths were sent to TYC in 2006.

Those youth had already been through the county’s community-based programs and progressive sanctions, which include comprehensive family services, counseling, parenting training, substance abuse counseling and other services. After the county’s services had been dried out, the youth were then sent to TYC as a last resort.

In Denton County, about a third (13) of the juveniles sent to TYC were misdemeanor offenders. Denton County Court at Law Judge Darlene Whitten recalled one case in which a juvenile accumulated referrals for 14 different misdemeanor offenses over a 3-year period, most of them for theft. The child was 13 when the first offense went through the system; the judge ordered various home remedies for the child, and then placed him in a county detention facility, and then a second facility. The kid was then discharged from that facility for fighting and sent to TYC on an indeterminant sentence, meaning until TYC officials believes he has been rehabilitated.

“It’s typical in that he had multiple misdemeanors and in that we worked with him as much as we could, we did everything we could think of, before sending him to TYC,” Whitten said. “Denton County tried hard not to send him to TYC.”

Dallas County sent 70 misdemeanant youth to TYC in 2006, said Griffiths.

“We went through our commitments, and we were not ashamed by the misdemeanants we sent to TYC in the past, because they’ve been through placement after placement, program after program,” he said. “The challenge now is to find something new.”

But so far, it seems discussions between judges and probation officers have been coming up short when it comes to discovering any kind of “new” wonder program for juvenile offenders. Griffiths, Whitten and staff from several other counties all said they are hoping to expand already existing services in their counties that focus on family preservation.

Bexar County Chief Probation Officer David Reilly said he’d like to see the community- based program funding given to his county used on expanding the county’s Kids Averted from Placement Services program, which focuses on helping a juvenile’s entire family. The program enlists teams of counselors and case managers, who offer parents training in home management, budgeting and parenting, as well as individual, family and marital counseling and anger management and drug prevention classes. The program normally lasts three to four months. Each KAPS team services seven families at a time and costs the county about $75,000 a year.

There’s usually a three to five month waiting list for the program, Reilly said. It is similar programs being offered elsewhere, including Denton County, where Judge Whitten said she also expected family preservation services to be a funding priority.

“If a child is a repeat offender, the chances are very high that there are some family problems that have got to be discovered and have to be addressed,” Whitten said.

But it’s hard to tell if expanding the program would help address the population the Legislature was hoping to help with Senate Bill 103 – the misdemeanants who are sent to TYC by Denton and Dallas judges have already had access to family preservation programs. Whitten said she believes many more placement beds will be needed.

Advocates say the benefit of the additional funding is not necessarily to come up with new programs but to ensure a wider array of options are available in all counties so that programs can be more closely tailored to a specific offender’s needs.

“The counties need more tools in their toolbox,” said Isela Gutierrez, with the Texas Criminal Justice Coalition, which advocated in favor of Senate Bill 103. “Let’s find the right program to fit these children’s needs.”

According to a 2000 study by the Office of Juvenile Justice and Delinquency Prevention on effective intervention for serious juvenile offenders, the most effective types of programs for non-institutionalized serious offenders are those that include interpersonal skills training, individual counseling and behavorial programs. If an offender is institutionalized, individual counseling does not appear to be effective, the study concluded. Instead, the most effective programs for institutionalized youth were interpersonal skills training and family-type group homes.

None of the model programs cited in the study were newly developed, even in 2000; most were implemented in the 1970s and 1980s, so many programs similar to the model programs have been in place in Texas for years or decades.

“We are always looking at what other options are available and we will continue to do that,” said Tarrant County Juvenile Judge Jean Boyd. “I don’t know that we know of any specific answer to this issue.”

Criminal Justice Coalition Executive Director Ana Yanez-Correa said she believes juvenile offenders would benefit from having greater access to non-residential programs, including victim-offender mediation, out-patient drug rehab that focuses on the importance of separation between their parents’ bad habits and their own, and an increasingly greater focus on improving family life.

“When it comes to kids, you really can’t remove them from their families. Even if you remove them from their homes, they are coming back, they are coming right back to their family. If their family life is bad, you have done nothing to address that issue with the child,” she said, adding that it’s now judges and probation officers who must now assess why those youth who thus far haven’t succeeded with communitybased program have failed. “There is going to be a commonality of traits among these youth who don’t succeed, and the challenge is to look at the data and fill those holes. The data is there, but the analysis isn’t. We have a database problem.”

She added that the organization is committed to helping counties with those issues.

“It’s really important that even though we may disagree about some things, we begin the dialogue. Counties are the only ones who know what their needs are,” she said. “Overall, with the bill, the work has just begun. There is not a single piece of legislation that is perfect and there are definitely unintended consequences to everything that comes out of the Capitol.”

With three months to go before the new funds are released, judges and probation officers were all looking to each other to hopefully fix those holes and build that mental database of how best to help the state’s juvenile offenders. But sustainability of any community-based programs that are created is also a potential concern.

“The legislators certainly stepped up to the plate this session with additional funding for local governments and juvenile courts to provide them with more resources, but anyone who is a student of history knows that that funding is likely to shrivel up and go away a couple sessions from now,” said Shannon Edmonds, with the Texas District and County Attorneys Association. “If you look at past history, the Legislature is infamous for throwing money at a problem, thinking they have solved it, and then when the next problem comes along, they take money from the previous problem and move it toward the new problem.

“I would hate to see that happen with these juvenile justice changes, if that holds true, it’s going to create a real crunch.”