By Julie Anderson

Editor

On June 15, Gov. Greg Abbott signed Senate Bill 1849, known as the Sandra Bland Act, into law. That same day, USA Today published an opinion piece saying the new Texas law “sets an example for rest of the nation.” The article, authored by Nick Selby, a Dallas-area police detective, and Colt Remington, a certified Texas mental health peace officer, focuses on the ineffective “warehousing of the mentally ill” and praises the legislation for “forcing accountability in the mental health industry,” https://usat.ly/2A7xaov.

While diverting the mentally ill from county jails is an important element of the legislation, the Senate Research Center’s bill analysis summarizes the components of the statute as follows: bail reform, jail diversion, jail safety, officer training, racial profiling, data collection, officer discipline and behavioral health.

The legislation was filed following a high-profile incident in 2015 in which a 28-year-old Illinois woman, Sandra Bland, died in the Waller County Jail days after being arrested during a routine traffic stop. Official autopsy reports ruled Bland’s death as a suicide.

“To make both officers and the public safer, S.B. 1849 increases officer training in general de-escalation and mental health de-escalation tactics,” the Senate bill analysis reads. “The use of de-escalation tactics helps ensure that both law enforcement and the public are able to go home safe.”

The Sandra Bland Act requires several changes to Minimum Jail Standards, reported Brandon Wood, executive director of the Texas Commission on Jail Standards (Commission). During the summer and fall months, Wood traveled throughout the state briefing County Judges, County Commissioners and other officials on developing changes to Minimum Jail Standards, other new requirements in the statute, and related deadlines.

To view the statute and the bill analysis in full, go to http://www.capitol.state.tx.us/, click on (85)R, and key in SB1849.

Important elements of the Sandra Bland Act include the following:

Identification and Notification of Defendant Suspected of Having Mental Illness or Intellectual Disability to Magistrate

The Code of Criminal Procedure was amended to require the sheriff, “not later than 12 hours, rather than 72 hours, after receiving credible information that may establish reasonable cause to believe that a defendant committed to the sheriff’s custody has a mental illness or is a person with an intellectual disability, including observation of the defendant’s behavior immediately before, during, and after the defendant’s arrest and the results of any previous assessment of the defendant, to provide written or electronic notice of the information to the magistrate.”

Key Change: The notification requirement is now 12 hours rather than 72 hours; this change went into effect on Sept. 1, 2017.

Diversion of Those Suffering Mental Health Crisis or Substance Abuse

The Code of Criminal Procedure was amended to require each law enforcement agency to make a “good faith effort” to divert a person suffering a mental health crisis or suffering from the effects of substance abuse to a proper treatment center in the agency’s jurisdiction if:

1. there is an available and appropriate treatment center in the agency’s jurisdiction to which the agency is authorized to divert the person;
2. it is reasonable to divert the person;
3. the offense that the person is accused of is a misdemeanor, other than a misdemeanor involving violence; and
4. the mental health crisis or substance abuse issue is suspected to be the reason the person committed the alleged offense.

This new requirement went into effect on Sept. 1, 2017.

Grant Money for Community Collaboratives

The Sandra Bland Act amended the Government Code to require the Department of State Health Services to, depending on appropriated funds, make grants available to certain entities for the establishment or expansion of collaboratives to provide services to those experiencing homelessness, substance abuse issues, or mental illness. Language was also added to the statute requiring the development of plans for certain community collaboratives.

Release on Personal Bond of Certain Defendants with Mental Illness or Intellectual Disability

The Code of Criminal Procedure was amended to require a magistrate to “release a defendant on personal bond unless good cause is shown otherwise if the defendant is examined by the local mental health or intellectual and developmental disability authority or a certain other mental health expert and an applicable expert, in a certain written assessment concludes that the defendant has a mental illness or is a person with an intellectual disability and is nonetheless competent to stand trial, and recommends mental health treatment or intellectual disability treatment for the defendant, as applicable.”

This new requirement took effect on Sept. 1, 2017.

Safety of Prisoners

The Sandra Bland Act requires county jails to:

1. give prisoners the ability to access a mental health professional at the jail through a telemental health service 24 hours a day;
2. give prisoners the ability to access a health professional at the jail or through a telehealth service 24 hours a day, or if a health professional is unavailable at the jail or through a telehealth service, provide for a prisoner to be transported to access a health professional; and
3. install automated electronic sensors or cameras to ensure accurate and timely in-person checks of cells or groups of cells confining at-risk individuals. The Legislature created an account titled the Prisoner Safety Fund, and counties that operate a jail that is 96 beds or less may apply for grants to assist in paying for the capital improvement upgrades, such as electronic sensors and possibly cameras. The grant program is currently in development.

The deadline for the Commission to adopt rules and procedures regarding these new requirements is Sept. 1, 2018. The county must comply with these new requirements by Sept. 1, 2020.

The Commission has “been provided direction from the authors” that any funds that are left over after fulfilling the installation of sensors or cameras may be used to assist counties (96 beds or less) with the equipment for the other two mandates, but not the ongoing operational cost, Wood reported.

Continuity of Medications

The Commission shall adopt reasonable rules and procedures establishing minimum standards regarding the continuity of prescription medications for the care and treatment of prisoners. The rules and procedures shall require that a qualified medical professional shall review as soon as possible any prescription medication a prisoner is taking when the prisoner is taken into custody.

This new requirement will go into effect on Jan. 1, 2018.

Serious Incident Report

On or before the fifth day of each month, the sheriff of each county must report to the Commission any of the following incidents that happened in the county jail during the prior month:

• suicide
• attempted suicide
• death
• serious bodily injury, as that term is defined by Section 1.07, Penal Code
• assault
• escape
• sexual assault
• any use of force resulting in bodily injury, as that term is defined by Section 1.07, Penal Code

The new rule will become effective Jan. 1, 2018, and the first reports will be due on Feb. 5, 2018, covering the previous month, Wood said.

Death in Custody Investigation

On the death of a prisoner in a county jail, the Commission shall appoint a law enforcement agency, other than the local law enforcement agency that operates the county jail, to investigate the death as soon as possible.

The Commission shall adopt any rules necessary relating to the appointment of a law enforcement agency, including rules relating to cooperation between law enforcement agencies and to procedures for handling evidence, by Jan. 1, 2018.

While counties may have their own criminal investigators or internal affairs divisions investigate deaths in custody, the Commission is mandated to appoint an independent, outside agency to investigate the death.

Jail Administrator Examination

The Government Code was amended to require the Texas Division on Law Enforcement (TCOLE) to develop and the Commission to approve an examination for county jail administrators.

Specifically, the law states that the Commission must adopt rules requiring a person, other than a sheriff, assigned to the jail administrator position overseeing a county jail to pass the examination not later than the 180th day after the date the person is assigned to that position. The rules must provide that a person who fails the examination is authorized to be immediately removed from the position and is prohibited from being reinstated until the person passes the examination.

The sheriff of a county must perform the duties of the jail administrator position at any time there is not a person available who satisfies the examination requirements of this new section of law.

TCOLE and the Commission must have the test prepared and approved by March 1, 2018. Anyone serving as a jail administrator on or before March 1 will be grandfathered and not required to take the exam. However, if a jail administrator transfers to another county, or a new or incoming sheriff appoints the existing jail administrator to the same position, the exemption does not apply, and the administrator must take the exam.

Jail Training – Mental Health Course

The Occupations Code was amended to require that county jailer training include at least eight hours of mental health training approved by TCOLE and the Commission. Current license holders have until Aug. 31, 2021, to take an approved eight-hour course.

The new law requires the Commission to employ three mental health trainers who will be responsible for teaching the mental course in their assigned regions.

The training will be at no cost to the county.

New Training Requirement for Law Enforcement Officers

The Occupations Code was amended to require TCOLE, as part of the minimum curriculum requirements, to require an officer to complete a 40-hour statewide education and training program on de-escalation and crisis intervention techniques to facilitate interaction with persons with mental impairments. The new language also requires TCOLE, as part of the minimum curriculum requirements, to require an officer to complete a statewide education and training program on de-escalation techniques to facilitate interaction with members of the public, including techniques for limiting the use of force resulting in bodily injury.

To read more about this requirement, please see the statute: http://www.capitol.state.tx.us/, click on (85)R, and key in SB1849.

Important Reminders

Wood, who has fielded a multitude of questions from officials across the state, offered the following suggestions:

1. The law does not require electronic sensors or cameras for each and every cell, “so be mindful of that statement from vendors,” Wood emphasized. The agency will be conducting a survey to assist counties in determining if they already comply or what they will need in order to comply.
2. Regarding the eight-hour course for jailers: This course is free and will be conducted across the state over the next four years. “Make sure your jailers do not wait until the last moment to attend one of the classes,” Wood cautioned. Regarding jail administrators who are grandfathered in, “we encourage all of them to take the exam as it helps promote professionalism within their profession and demonstrates competency.”

“Additional Technical Assistance Memos will be distributed on each and every topic providing guidance on what is required to comply and hopefully clear up any misinformation that is making the rounds,” Wood shared.

Should Texas Raise the Age of Adult Criminal Responsibility?

By Kellie A. Dworaczyk

House Research Organization Focus Report Number 84-11

      Part One of the latest House Focus Report ran in our December 2016 issue and covered the adult criminal justice system, the juvenile criminal justice system, proposed legislation, and debate on raising the age. Part Two below is the remainder of the report, which is available in full at http://www.hro.house.state.tx.us/pdf/focus/ageofcriminalresponsibility.pdf .

Texas is one of seven states in which 17-year-olds accused of committing crimes automatically enter the adult criminal justice system, rather than the juvenile system. The age at which young offenders enter the adult system is referred to as the age of adult criminal responsibility. Six states have raised this age to 18 in the past seven years, with two making the change this year, according to the National Conference of State Legislatures (NCSL).

Legislation to raise the age of adult criminal responsibility to 18 years old in Texas failed in the 2015 legislative session but could emerge again in 2017 during the 85th Legislature. Making such a change would raise related issues, such as when it should be implemented and how funding for the adult and juvenile criminal justice systems would be adjusted. Other changes that might accompany raise-the-age legislation could include revising court procedures and offenses for which the age of the person committing the offense is a factor.

 Costs of Implementation

Discussions of placing 17-year-old offenders in the juvenile justice system in Texas often include estimates of the short- and long-term monetary costs of such a change and the experiences of other states.

Supporters of raising the age say: While raising the age could shift some costs from the adult to the juvenile justice system and could initially increase costs for the state and counties, it would reduce other costs and result in long-term economic benefits.

A 2012 report from the University of Texas LBJ School of Public Affairs estimated that raising the age of jurisdiction of the juvenile justice system in Texas would result in $88.9 million in net benefits for each cohort of 17-year-olds. This takes into account costs and savings to taxpayers and the fiscal benefits resulting from better outcomes for youths and reduced victimization.

Long-term savings and other benefits could result because the juvenile system has a better record of reducing recidivism than the adult system, supporters of raising the age say. This would mean fewer crimes, which would save the state and local governments’ money through reduced arrests, prosecutions, and supervision. While cost per day of supervision may be more in the juvenile system, lengths of stay would often be shorter, reducing costs. Those who might have been crime victims would benefit along with rehabilitated youths.

Costs of raising the age could be less than some estimates. Arrests of 17-year-olds have been dropping for years, with 46,173 arrested in 2008 and 22,065 arrested in 2015. The state and counties could absorb those who enter the juvenile system after raise-the-age legislation. Given the high portion of youths who receive probation in the juvenile system, some of the 17-year-olds currently sentenced to adult correctional facilities could instead be placed on probation, which costs less. Seventeen-year-olds often have problems raising bail in the adult system, resulting in them remaining in local jails and increasing costs to counties. The cases of some 17-year-olds could be addressed informally in the juvenile system without court time or through deferred adjudication, and some commonly used diversion options would cost less than having 17-year-olds in the adult system.

Developing and implementing age-appropriate programs and housing for 17-year-olds in the Texas juvenile justice system would not be prohibitively expensive, supporters say. In some cases, the juvenile system already supervises offenders as old as 19, and education, vocation, and career programs used for them could be modified or expanded. Expenses would not occur the first day a law raising the age became effective but would occur gradually as 17-year-olds entered the system.

Raising the age would help reduce costs to local jails and the state to comply with federal standards under PREA. Texas counties are incurring significant costs to try to meet the sight and sound separation standards. They report dedicating entire floors to 17-year-olds, which means leaving beds empty on those floors and having to move older offenders around a jail to meet recreation or medical needs of 17-year-olds. Counties also could incur costs if noncompliance with PREA were raised in a lawsuit against them. One large county is considering moving 17-year-olds from its jail to a facility hours away to comply with PREA.

Some states that have raised their age of criminal responsibility have found it to be less costly than predicted. After a Connecticut law raised the age in 2010, spending on juvenile justice was lower in 2011-12 than it had been 10 years earlier and less than estimated for the change.

Critics of raising the age say: Raising the age could be costly because thousands of 17-year-olds entering the juvenile system could strain juvenile courts, local juvenile probation systems, and juvenile facilities.

Placing 17-year-olds in the juvenile system could require significantly more resources for supervision, programs, and treatment, critics say. These offenders may need new programs focused on job training and life skills to transition to adulthood. Costs of supervision and programs in the juvenile system, due to their intensiveness, are higher than those in the adult system, and providing services for these older youths while keeping probation caseloads low could be expensive for the state and counties.

While the fiscal note for the raise-the-age legislation considered in 2015, HB 1205 by Dutton, estimated a cost of $6.7 million for the first biennium of implementation, costs would increase significantly after that. The first full biennium of implementation would cost $108.8 million, and this estimate does not include potentially significant costs for probation, including mental health, substance abuse, or other services, according to the fiscal note. The fiscal note also reported the state’s cost per day for an inmate in a TDCJ facility is $54.89, much lower than the $437.11 cost per day for a youth in a TJJD facility. The state’s cost per day for community supervision (probation) for someone in the adult system is $1.63, lower than the $5.40 per day for juvenile probation supervision.

Raising the age could be costly for counties. The fiscal note for HB 1205 reported that while county costs would have varied, some estimates indicate the average first-year cost for eight counties would have been $2.2 million. Bexar County estimated an annual cost of between $8.2 million and $8.5 million to implement the change. Harris County estimated $50.1 million in the first full year of implementation and $18.2 million to $19.9 million annually thereafter. The Harris County costs included a new juvenile detention center.

Raising the age of adult criminal responsibility also could have unintended consequences, such as increasing the number of juveniles being certified as adults in the criminal justice system or the number of determinate (fixed) sentences. If these options were used for a large number of 17-year-olds accused of crimes, costs could rise due to more hearings, evaluations, and other procedures.

 State and Federal Trends

How much influence federal policies, laws in other states, and court decisions should have on the age of criminal responsibility in Texas is part of the debate on amending the law. These discussions also include the treatment of 17-year-olds under other, non-criminal laws.

Supporters of raising the age say: Such a change would put Texas in line with other states’ laws, federal law on sentencing and correctional practices for those under 18, and U.S. Supreme Court rulings that have recognized differences between children and mature adults. Laws in these jurisdictions recognize that scientific studies show the brains of teenagers are still maturing and that they can exhibit increased risk taking and poor decision making and impulse control. However, teenagers are malleable and have the potential for rehabilitation, making it appropriate for them to be in the juvenile system, which includes services and support specifically designed for them.

Almost all other states – 43 – have set their age of adult criminal responsibility at 18 years old. The trend has continued in 2016 with discussions in some states about raising the age even higher than 18. Raising the age also would resolve inconsistencies in how state and federal law treats 17-year-olds. Under current law, the state holds 17-year-olds accountable for criminal actions as if they were adults, but they cannot vote, serve on a jury, or buy tobacco, alcohol, or lottery tickets.

        Critics of raising the age say: Many options are available under the current model for 17-year-olds in the criminal justice system to be treated appropriately. Most receive probation in the adult system, and the adult prison system operates a youthful offender program designed for them. While 17-year-olds may need services for their age group, this can be done in the adult system, rather than altering Texas’ juvenile justice system to follow a trend.

Editor’s Note: This article was reprinted with permission from the House Research Organization, a nonpartisan department of the Texas House of Representatives that examines state issues and analyzes legislation being considered by the Texas Legislature. To view the report in full, go to http://www.hro.house.state.tx.us/pdf/focus/ageofcriminalresponsibility.pdf.