Texas Juvenile Justice System Continues to Unravel

The Texas juvenile justice system continued to unravel this week. The Chicago Tribune reported that the sentences of many of the 4,700 delinquent youths being held in Texas juvenile prisons might have been arbitrarily and unfairly extended by prison authorities. Thousands of youths could be freed in a matter of weeks as part of a sweeping overhaul of the scandal-plagued system.

Meanwhile, the Dallas Morning News and Houston Chronicle ran a story from the Associated Press that frustrated state lawmakers told the man put in charge of the scandalized Texas Youth Commission he isn't moving fast enough to change the agency and restore public confidence in the juvenile justice system.

"We're studying this thing to death," said Sen. John Whitmire, D-Houston, the chairman of the Senate Criminal Justice Committee. "It's time to act, heads to roll."

The problems in Texas arise from indeterminate sentences. Juvenile offenders can be sent to youth correctional facilities, such as the John Shero State Juvenile Correctional Facility pictured above, for an indterminate time up to the age of 21. However, they may become eligible for release any time after serving nine months at the discretion of prison officials.

The detaining authorities are supposed to use an elaborate point system to modify behavior. However, the system leaves too much discretion in the hands of the adults. In Texas, some of the adults abused that discretion to sexually abuse the youth offenders.

"The system is wide open for abuse and corruption," said the ACLU's Harrell. "How difficult would it be for a 12-year-old kid to file a complaint on an assistant superintendent of a facility when that assistant superintendent is actually the one who is sexually abusing her and that same person gets to decide when she gets out? Basically the official gets to say, 'Comply and keep quiet or I'll keep you here until you're 21.'"

Without excusing the individuals involved, the very structure of indeterminate sentences opens the children to abuse. This same structure appears not only in Texas, but in juvenile systems throughout the United States.

For example, in Kansas, where I practice Juvenile Law, direct commitments to the Youth Correctional Facility must state a determinate sentence. However, juvenile offenders might also be placed into the custody of the state's Juvenile Justice Authority for an indeterminate time. The Kansas Revised Juvenile Offender Code incorporates requirements from the federal Adoptions and Safe Families Act (ASFA) to ensure adequate progress toward returning the juvenile home. Nonetheless, the case managers and facility managers maintain substantial discretion on the child's daily privileges and duration of incarceration.

Discretion should permit the courts to adapt sentences to the specific needs of the child, especially for the seventy percent of juvenile offenders with mental disorders. However, that discretion should be excercised by a court, not by a prison guard. In court, the child and her family would have the right to legal counsel and the opportunity to present their case before an impartial judge. Of course, this proposal assumes that in practice juvenile courts extend due process to families of juvenile offenders. Whether that is true in practice remains another issue for a different post.