ANALYSIS: Should Texas Raise the Age of Adult Criminal Responsibility?

December 16, 2016 by County Progress

By Kellie A. Dworaczyk

House Research Organization Focus Report Number 84-11

October 25, 2016

The following is Part One of the latest House Research Organization Focus Report. To view the report in full, go to 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. Папарацци поймали в объектив камеры известную личность. Макс Поляков посетил в кафе Lucky Labs. 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.

Debate on raising the age in Texas centers on the effect it would have on public safety, the outcomes for youths in each system, and the cost of moving 17-year-olds to the juvenile justice system. The ability of each system to provide appropriate sanctions and to rehabilitate 17-years-olds is part of the discussion on public safety outcomes. Много интересных событий происходит в наше время. У нас на сайте вы узнаете об этом и о многом другом. The safety of offenders 17 and younger in each system and the long-term consequences for these youths also are part of the ongoing debate. Concerns about cost center on the price tag for both the state and counties to impose sanctions on 17-year-olds and to provide them with treatment, education, and other programs. The long-term economic benefits of raising the age also are part of the discussion on cost. Another facet of the debate is how Texas should respond to U.S. Supreme Court decisions, federal correctional standards for those under 18 years old, state and national trends, and research on teenage brain development.

Adult Criminal Justice System

Those accused of committing crimes in Texas when they were 17 years old are subject to the procedures and sanctions of the adult criminal justice system. Because 17-year-olds generally are treated the same as other adult offenders, parents do not have to be notified after an arrest and are not necessarily involved in the case.

Sanctions in the adult criminal justice system include deferred adjudication, probation, fines, and either jail or prison terms. Probation is common for 17-year-olds in the adult system. About 8,000 offenders from 17 to 20 years old were placed on adult probation in 2015 for crimes they committed when they were 17 (see Seventeen-year-olds, below). Some of these 17-year-old offenders completed probation or turned 18 during the year, leaving local community supervision departments across Texas supervising 1,239 probationers who were 17 at the end of fiscal 2015.

The Texas Department of Criminal Justice (TDCJ), which operates the state’s adult criminal justice system, at the end of August held 46 inmates who were 17 years old and supervised no 17-year-olds on adult parole. About 1,949 offenders who were 17 years old at the time of their offense were received in TDCJ facilities in fiscal 2015. This includes those directly sentenced to prisons, state jails, and substance abuse treatment facilities and those incarcerated after revocation of their parole or probation. The federal Prison Rape Elimination Act (PREA) standards require individuals under 18 who are incarcerated in adult facilities to be housed apart from adult inmates with sight and sound separation between them. TDCJ is in compliance with this requirement, according to the agency.

While 17-year-olds are sentenced to state prisons or state jails like older inmates, once at state facilities they are housed separately and placed in a specially designed youthful offender program. These offenders may receive academic, cognitive, and substance abuse education. When they turn 18, they transfer out of the program and may remain at their unit with other offenders who are 18 and older or be moved to other TDCJ facilities. These 18-year-olds primarily are housed with other offenders near their age and have access to TDCJ’s education and treatment programs. Seventeen-year-olds with medical or mental health issues or physical handicaps may be assigned to a different facility.

Seventeen-year-olds in TDCJ’s youthful offender program may receive some substance abuse education but are not eligible for the two main treatment programs the agency offers, Substance Abuse Felony Punishment Facilities and In-Prison Therapeutic Communities. They may receive treatment from these programs after turning 18 years old, if other conditions are met.

Statewide statistics are not collected for the number of 17-year-olds in local jails but are maintained locally. Local jails also fall under the federal PREA rules requiring facilities to house those under 18 years separately from older individuals, and compliance varies. At a March 2014 hearing of the House Criminal Jurisprudence Committee, the Office of Court Administration reported the estimated number of 17-year-olds in local jails on a typical day was 2,868 to 3,119. Most were in jail for misdemeanors.

Like all adult criminal records, those of 17-year-olds are generally public. Under certain circumstances, adult records can be sealed or expunged with court approval.

Juvenile Criminal Justice System

While those accused of committing crimes when they were 17 are automatically subject to the adult criminal justice system, a different, civil court system addresses accusations against those who allegedly committed offenses when they were 10 through 16 years old.

Individuals accused of committing crimes when they were under the age of 17 may be referred to local juvenile probation departments. They may have their cases addressed informally and be released with a caution or may be referred to a juvenile court. Juvenile courts may defer adjudication, put the youth on probation, or sentence the individual to state custody in a secure juvenile facility.

In most cases, juveniles receive probation and are supervised by the county’s juvenile probation department. In fiscal 2015, 44,060 juveniles were referred to these local juvenile probation departments. They were referred a total of 62,535 times, a 2 percent decrease from fiscal 2014. About 98.7 percent of dispositions in fiscal 2015 resulted in youths being placed on probation.

Juvenile probation departments generally use a progressive sanctions model that starts with the minimum sanctions and least serious interventions and progresses to more serious interventions, which may include placement in a secure or non-secure facility. Supervision by local probation departments may extend until a youth turns 18 and until 19 for those given determinate (fixed) sentences.

Youths accused of felony offenses may be committed to custody of the Texas Juvenile Justice Department (TJJD) and sent to a secure or non-secure facility. Commitments to TJJD usually are indeterminate, meaning that after a minimum length of stay, release is based on several factors, including success in programs. For offenses occurring after September 1, 2017, courts must find that a child has needs that cannot be met in the community before sending a child to TJJD with an indeterminate sentence. Youths may remain in TJJD’s custody until age 19. About 1.3 percent of dispositions in fiscal 2015 resulted in commitment to TJJD, representing 825 youths.

Juveniles found guilty of certain serious or violent crimes may receive a determinate sentence of up to 40 years. They start their term of confinement in a TJJD facility, with possible release on juvenile parole or transfer to the adult prison system or the adult parole system. TJJD may retain custody of these youths until they turn 19. A process called certification allows youths 14 through 16 years old who are accused of certain serious crimes and who meet specific criteria to be tried and sanctioned in the adult system (see Certification as an adult, at right).

Records in the juvenile justice system generally are sealed and not available to the public. Exceptions include information about youths who must register with the state’s sex offender registry and youths who start their sentence in the juvenile system but complete it in the adult system.

Other States

Forty-three states set the age of adult criminal responsibility at 18, which means those accused of committing crimes when they were 17 or younger enter the juvenile justice system, according to a report by NCSL.

Texas is one of seven states in which the age of adult criminal responsibility is under 18 years old (see Age of adult criminal jurisdiction, page 4). In five states – Georgia, Michigan, Missouri, Texas, and Wisconsin – those 17 years old and older enter the adult criminal justice system. New York and North Carolina set the age for adult court jurisdiction at 16 years old.

Six states have increased to 18 their age for adult court jurisdiction during the past seven years, with Louisiana and South Carolina making the change in 2016, according to NCSL. Other states are considering similar proposals, some of which would set the age of adult court jurisdiction at 21 years old.

Proposed Legislation in Texas

Under proposals discussed for Texas to raise to 18 the age of adult criminal responsibility, 17-year-olds accused of crimes would be under the jurisdiction of the juvenile rather than the adult justice system. Legislation likely would include other changes, including amending court procedures, revising offenses in which the age of a person committing them was a factor, and altering certain criminal procedures. Issues that could be considered include a timeline for implementing the change, whether the change would apply to both misdemeanors and felonies, how much it would cost, how it would be funded, how long a youth could stay in the juvenile system, and at what age the juvenile system’s jurisdiction over the youth would end.

Raising the age of adult criminal responsibility to 18 in Texas was recommended by the 83rd Legislature’s House Committee on Criminal Jurisprudence in 2015. In its interim report, the committee recommended raising the age if adequate funding were provided.

In 2015, the 84th Legislature considered but did not enact raise-the-age legislation, HB 1205 by Dutton. The bill was placed on the House’s May 12 General State Calendar but not considered. The fiscal note for HB 1205 estimated a cost of $6.7 million to the state for the first year of implementation, which would have been 2017. The cost would have been $47 million the second year and $61.7 million the third year, and it would have decreased to $53.9 million in 2020. The fiscal note also reports the costs to some counties.

A provision that would have raised the age of criminal responsibility to 18 was added by the House to SB 1630 by Whitmire, which revised how TJJD uses state facilities, but the provision raising the age was not included in the enacted version of the bill.

Debate on Raising the Age

The debate on raising the age of adult criminal responsibility to 18 in Texas centers on public safety, outcomes for youths, cost, and state and federal trends. Supporters say raising the age would improve public safety, create better outcomes for youths, have long-term economic benefits, and better conform Texas law with national trends in juvenile justice and other state laws. Critics of raising the age say the current system is the best approach for both the public and 17-year-olds. They say the cost might be prohibitive and that the needs of 17-year-olds can be met with the current Texas model.

Public Safety

Whether the public safety is better served by 17-year-old offenders entering the juvenile justice system or the adult system is part of the raise-the-age discussion. The debate includes how the sanctions a juvenile receives affect public safety and reduce recidivism.

Supporters of raising the age say: Moving 17-year-olds to the juvenile system from the adult justice system would enhance public safety in the long run because youths are more likely to be rehabilitated in the juvenile system. Most offenses by 17-year-olds are non-violent, low-level crimes that do not warrant the adult system’s severe sanctions. In 2015, about 44 percent of arrests of 17-year-olds were for theft, marijuana possession, drunkenness, and liquor law violations. The offenses and needs of 17-year-olds are similar to those of other teenagers in the juvenile system, supporters say.

Education, treatment, and services in the juvenile system focus on rehabilitation, take into account adolescent development, and involve the family, supporters say, while the adult system lacks this emphasis and often focuses on punishment. Focusing on rehabilitation in the juvenile system reduces recidivism, meaning fewer future crimes by those who go through that system. The U.S. Centers for Disease Control and Prevention (CDC) in 2007 reported that youths under age 18 who were transferred to the adult system from the juvenile system reoffended at a higher rate than youths retained in the juvenile justice system. The CDC analyzed several studies and reported that transferred juveniles were about 34 percent more likely than retained juveniles to be involved in subsequent crimes.

The juvenile system is equipped to handle all types of young offenders. It has a range of sanctions available, from pre-trial diversion to probation, which can include a stay in a secure or non-secure facility, to confinement in a state facility. State-run juvenile facilities even offer intensive specialized treatment, including programs for youths who commit murder or other violent offenses.

Supporters of raising the age say public safety would be maintained if Texas raised the age of criminal responsibility because, under certain conditions, 17-year-olds accused of serious crimes still could move to the adult system. Certification allows older youths accused of certain crimes to be tried and sentenced as adults. Courts could continue transferring to the adult system youths with determinate (fixed) sentences that had begun in the juvenile system. An increase in certifications or determinate sentences after raising the age would not indicate a problem but instead would show the system had the flexibility to handle 17-year-olds who commit the most violent crimes.

Critics of raising the age say: Placing all 17-year-olds in the juvenile system could make it difficult to hold them appropriately accountable for their crimes. Seventeen-year-olds are old enough to understand the consequences of their actions, critics say, and the adult criminal justice system provides a range of sanctions to handle them properly. Options include pre-trial diversion, deferred adjudication, probation, fines, and state jail or prison terms, which allow the punishment to fit the individual and crime.

These diverse sanctions allow 17-year-olds who are first-time offenders or involved in less serious crimes to receive probation or be diverted from the courts before a trial. Other avenues are available for those involved in more serious or violent offenses. In some cases, courts may deem incarceration or adult probation to be appropriate for a 17-year-old who committed a serious offense. In these situations, critics say, the adult system may provide more appropriate supervision than the juvenile system, which is focused on younger individuals involved in lesser crimes.

Simply shifting the age of court jurisdiction by one year would not necessarily result in less crime or fewer victims. Many things contribute to crime rates, including social, economic, and other factors, as well as decisions made by law enforcement officers, prosecutors, and courts.

Outcomes for Youth

How the age of criminal responsibility affects outcomes for young offenders in both the juvenile and adult justice systems is part of the debate on raising the age. The discussion includes questions about the safety of offenders who are 17 and younger, how well each system’s programs meet offender needs, and the long-term effects of being in each system.

Supporters of raising the age say: Moving 17-year-olds from the adult to the juvenile justice system would improve the lives of offenders and recognize scientific studies that show teenage brains are still developing. These offenders would continue to be held accountable for their actions but within a system designed to protect and rehabilitate them and to ensure they had help understanding legal proceedings and consequences. They could have access to education and substance abuse programs unavailable in the adult system, which would reduce recidivism and improve their futures. Outcomes for 17-year-olds also would improve if they were kept out of local jails, which lack appropriate programs and often struggle to meet federal standards under the Prison Rape Elimination Act (PREA) to separate 17-year-olds from older offenders without isolating them.

Seventeen-year-olds would be better protected in the juvenile system and could be housed and treated without endangering younger offenders, supporters of raising the age say. State and local juvenile probation departments are experienced in dealing with offenders as old as 19 in a way that protects everyone. For example, the state currently houses youths up to age 13 at one state facility and older teens at other locations. The juvenile justice system has appropriate education, vocation, training, and career programs that could be adapted for 17-year-olds. By contrast, supporters say, youths in adult facilities are at high risk of physical assault, sexual abuse, and mental health problems.

Raising the age also would help older youths by allowing their records to remain private. The adult criminal justice system leaves 17-year-olds with an adult criminal record that generally is public information and can have long-lasting consequences for education, jobs, housing, and more. Records in the juvenile justice system are withheld from the public, giving rehabilitated youths a better chance of moving past their brush with the law.

Critics of raising the age say: Moving 17-year-olds to the juvenile system could have a negative impact on younger youths. This change could result in thousands of 17-year-olds entering a juvenile justice system that in recent years has dealt with scandals, reorganization, and implementing a regionalization plan. Younger youths kept in juvenile settings, which are more informal, could be endangered by the influx of 17-year-olds, some of whom would have been involved in serious crimes.

Critics of raising the age say the rehabilitation needs of 17-year-olds may be more aligned with those in the adult system than with younger offenders in the juvenile system. Any other needs could be met by treating them as a unique group within the adult system, rather than moving them to the juvenile system, which may not provide the type of programs these offenders need.

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 (see U.S. Supreme Court Rulings, page 7) 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.

Open Communication Key to State/County Partnership

November 14, 2016 by County Progress

By Brandon Wood, Executive Director, Texas Commission on Jail Standards

For the most part, our job at the Texas Commission on Jail Standards hinges on communication – not halfhearted or insincere attempts at communicating, but real communication.

Whether it is in Austin or one of the far-flung corners across this huge state, I have had the opportunity to meet with hundreds of County Judges and Commissioners. The one trait that is common to all of you is the desire to serve your community and do what you think is best for your constituents. You are constantly trying to balance the wants and needs of various individuals and entities while at the same time ensuring that your county can operate with the funds that are available.

As the level of representation closest to the people, you have your finger on the pulse of what is expected from government. This is one of the main reasons that I pepper you with questions whenever I have the opportunity to speak with you. However, those questions come only after I have had a chance to listen and take in what it is you are saying. It is hard to listen when you are talking, and in order for this agency to make the best decisions possible, we have to have your input.

In today’s day and age, there are more ways than ever to communicate, and we seldom travel anywhere without our cell phones. Between phone, email, text or even old-fashioned mail and fax, we rarely have a valid excuse for the failure to communicate.

If at any point in time you have a question or concern with the Commission or how we have approached an issue, please contact me. The sooner I am made aware of a potential issue, the sooner I can address it. We are constantly evaluating ourselves in an attempt to provide the best service possible, but we know sometimes mistakes are made. Once problem areas are identified, we will correct them as quickly as possible. The key is identifying issues, whether through our own internal checks and balances or an outside party. What matters is that it gets done.

Lip service is one thing, but action is another. There are several examples I could cite where a county official has contacted me and we have resolved an issue. This often boils down to a willingness to work together. Now, if you call and tell me that you don’t think you should have to feed your inmates any more (yes, I have received that call), then we do not have much room to maneuver. Now, on to the more traditional topics covered in this article.

Biggest Challenge?

In the past, our most significant challenge has been staffing. But over the last few years, the issue of mental health has been cited just as often if not more so. That has not changed as we move into 2017. Actually, in a way these two issues are connected.

Jailers have cited insufficient training as a main concern, and this concern will no doubt grow as the number of inmates with mental health issues grows. If jails continue to serve as de facto mental facilities for our communities, and if staff is not trained to properly handle those inmates, the turnover rate will continue to hinder efficient jail operations. Something will have to change, and unfortunately I do not see fewer inmates with mental health issues in your jails as a realistic expectation. Maybe I will be proven wrong, but just in case, I would prepare for the current situation to become the new norm. In order for your jailers to function, they will have to have the resources to handle these types of inmates. Quality training and avenues for them to seek assistance in dealing with inmates, whether it be better working relationships with your Local Mental Health Authority or expanded levels of care and treatment, will have to be identified and provided. Counties across the state have been implementing different approaches in an attempt to manage this chaos with different levels of success. One of the best things that you can do is talk to your fellow Judges and Commissioners and find out what it is they are doing. If it is working, try to emulate that as there is no reason to reinvent the wheel. It could be and most likely will have to be modified to work within your own community, but not trying anything or hoping the status quo will suffice will only result in you being further behind the curve.

85^th Texas Legislature

With the legislative session fast approaching, several topics that could possibly impact jails have been brought up. Mental health, of course, remains the most talked about, but others, such as the status of 17-year-old inmates along with jail diversion and re-entry planning, have come up. There have also been discussions regarding mandated protocols when dealing with inmates going through the detoxification process and the use of separation (isolation) cells at the county jail level. While these are not topics that we put forward – that is the domain of state representatives and state senators – we are often required to provide information when instructed to do so. That is why it is important you remain engaged in the legislative process and ensure that your position on any topic that could impact jail operations is known. Without active participation, others will assume everything is good and not look back.

Visit your County Jail

One thing that I always encourage Commissioners Courts to do if they have not already done so is to periodically take a walk through their county jail. It is most likely the single largest expense within your budget, and it only makes sense for you to know what you are paying for. While many of you do this already, for others it might be an eye opening experience; at the very least, it will provide you with a new level of familiarity with the issues you are being asked to decide upon. Additional insight is never a bad thing, and the ability to state, “I have been there,” lends credibility to your position as you discuss budgets each and every year.

As always, I would like to thank the staff of County Progress for reaching out to me and allowing me to submit an article. They have always gone out of their way to accommodate us; I greatly appreciate the opportunity to reach the largest audience possible, and this still remains one of the best ways to do so.

I look forward to working with you in the year to come. Once again, if you ever have any questions, suggestions or complaints, please do not hesitate to contact me at brandon.wood@tcjs.state.tx.us.

Overincarceration of People with Mental Illness Part 3

May 9, 2016 by County Progress

Overincarceration of People with Mental Illness:

Pretrial Diversion Across the Country and the Next Steps for Texas to Improve its Efforts and Increase Utilization

Editor’s Note: The following is Part 3 in a series, “Overincarceration of People with Mental Illness,” a report released in June 2015. The full report is available at *http://rightoncrime.com/2015/06/overincarceration-of-people-with-mental-illness/. Parts 1 and 2 ran in our March and April issues, respectively. This installment concludes the series.***

By Kate Murphy and Christi Barr

Center for Effective Justice

Texas Public Policy Foundation

Room for Improvement: Analysis and Recommendations

The over-arching policy concern here is that the criminal justice system is not designed to be a mental health provider, but it is being forced to be one. The constitution properly puts limits on when government can take away a person’s liberty. When looking at limitations on liberty in the criminal justice and mental health systems, law enforcement can only detain a person if there is probable cause that person has committed a crime or if the officer has reason to believe that person poses a substantial risk of harm to self or others. Outside of these two scenarios, the government lacks authority to force an unwilling people to change their conduct.

Law enforcement is traditionally trained to respond to a public safety threat and to end the threat by incarcerating the person posing that threat. After a person is arrested and incarcerated, he or she cannot be released without judicial approval. And prosecutors cannot require offenders to act in a certain way unless that requirement is connected to adjudication of a crime. Finally, conditions of release that only require that a person participate in mental health services, may be inadequate especially when considering the problem that demand for such services exceeds supply. These structured rules and procedures generally do not work well with a person who cannot follow rules because of a mental illness.

The most significant barrier to resolving the problems associated with coordinating criminal justice and mental health resources is that the state controls and funds most public mental health services, but local governments are where the individual decisions are made about how to address offenders with mental illness. The problem is not simply that there are too many persons with mental illness in the criminal justice system. The larger, systemic problem is the lack of coordination between the local government that provides criminal justice and law enforcement services and the state government that provides mental health services. One result of the lack of coordination is that local governments are forced to create new mental health diversion programs.

Local governments are generally in a better position than the state to provide mental health services aimed at prevention. Efficient, effective provision of mental health services will reduce demand on the criminal justice system from people with mental illness. Ultimately, Texas should begin to transition to a new system that delegates the provision of mental health services to local governments that are better able to address their unique needs in both areas.

But until our system is improved, jails will continue to be required to pick up the slack where community-based treatment is lacking. Much of the analysis and many of the recommendations below are designed to deal with this as we work to fully address the more substantial problem.

Offenders with mental illness are often arrested for low-level offenses like trespass, loitering, disorderly conduct, or other quality of life or victimless crimes. Although disruptive, these types of offenses rarely pose a threat to public safety. Creating an alternative to jail for these crimes may create a more just result. The Legislature could make some of these offenses cite-and-summons offenses that come with a treatment referral. At the court appearance, offenders could, with the victim’s consent, have this type of case adjudicated through victim-offender mediation rather than incarceration or a fine. This would allow individuals to still be held accountable for their actions while reducing unnecessary incarceration.

The most common way police come into contact with a person with mental illness is by responding to a request for service from a call to the department. These calls are handled by 911 dispatchers. The dispatcher must gather information about the event that precipitated the call. Where resources are available, dispatchers should receive training on how to determine whether mental illness is a factor in a particular call and use that information to inform the appropriate responder.

These responders might be Crisis Intervention Teams (CIT) or Mobile Crisis Units (MCU). Police might encounter people with mental illness who are victims of crime, a witness to crime, subjects of a nuisance call, possible offenders, or a danger to themselves or others. Officers must be able to recognize the potential role of mental illness in an incident and know how to respond accordingly to keep themselves, the person with mental illness, and any nearby bystanders safe during their interaction. Communities can decide the best ways to accomplish this. Crisis Intervention Teams are local law enforcement officers who receive specialized training on how to respond to calls where mental illness is a factor.¹²² Officers with CIT training learn how to de-escalate crises and collaborate with local mental health providers who offer alternatives to incarceration.¹²³ Some CIT officers even pre-emptively visit cyclical offenders with mental illness to encourage continued stability.¹²⁴

MCUs are comprised of civilians who are licensed mental health professionals who can respond to calls about low-level offenses when it would not jeopardize their safety.¹²⁵ They usually work with law enforcement as secondary responders. These teams can be especially effective in rural communities with a low prevalence of mental health calls that have workforce shortages and limited providers because they can meet the person in crisis where they are and possibly treat that person on-scene.

This prevents the need for transportation or creating a crisis center in an area where it cannot be sustained. This model would be most effective in remote areas of the state where several small counties can use one MCU. Another option that is more viable in remote, rural communities is telemedicine. Telemedicine is new technology that allows patients to seek services from providers who are too far away to easily access.

When CITs or MCUs assess a situation, they have to decide the most appropriate disposition. A responder may choose to disengage with suspects who are not dangerous and have not committed a serious crime. If a responder chooses to disengage, the responder can still make referrals to appropriate mental health services. But if a responder decides a person needs more immediate assistance, the responder’s next steps will often depend on what mental health resources are available in or near the community. To assist responders in navigating the ever-changing mental health care landscape, some communities establish drop-off or receiving centers who can quickly process, screen, and assess suspects with mental illness. These centers are more effective in urban areas with large populations that can justify the investment and sustain the necessary workforce.

If interaction with responders results in arrest, arrestees may be released on bail or bond within 48 hours when they have their first appearance before a judge or magistrate. Article 17.032 of the Texas Code of Criminal Procedures outlines the process for magistrates to determine whether an individual with mental illness must be released on a personal recognizance bond. When appropriate community-based services are available, and treatment is recommended by a mental health expert, Texas requires nonviolent offenders with a mental illness to be released on a personal recognizance bond with treatment required as a condition of release – unless good cause is shown otherwise. Under other circumstances, the magistrate has the discretion about whether to allow release on personal recognizance.¹²⁶ Although several counties in Texas are working hard to address the issues plaguing the criminal justice system that relate to mental illness, Article 16.22 and Article 17.032 are not operating as harmoniously as they could. The Texas Commission on Jail Standards (TCJS) should review jails, sheriffs, and magistrates to make sure they are complying with the requirements set out in Article 16.22 and Article 17.032. Local magistrates should ask whether a mental health screening was conducted at intake, and if the mental health screening required a full assessment. The magistrate should then seek counsel from the Local Mental Health Authority about whether the community has appropriate treatment services available.

Correction officers lack mental health training and expertise, which would help them care for inmates with mental illness. The TCJS conducted a mental health study in 2001 to analyze the process for determining the mental health status of inmates in county jail and screening methods that county jails use to determine mental health status.¹²⁷ This study identified six focus areas: (1) improvements to the mental health screening process, (2) collaboration and coordination between the criminal justice and mental health system, (3) access to medical and psychiatric information, (4) adherence to statutory mandates, (5) linkages to psychiatric treatment, and (6) best practices for timely identification and continuity of care.¹²⁸ During the last 10 years, the Texas Legislature has passed laws and the TCJS has enacted rules to address these areas, but much improvement is still needed. Many of the problems related to mental illness in the criminal justice system relate to who has or should have responsibility for people with mental illness who have come into the state’s custody.

Following are recommendations that address each of these areas of concern. The state and local governments should coordinate better to build mental health treatment capacity where necessary to prevent public safety concerns arising from mental illness.

The state could reallocate corrections funding or funding for state mental health hospitals to provide funding for pretrial diversion programs designed by local communities. In a pretrial diversion program, there are certain established criteria or risk assessments that determine whether or not a defendant is eligible to participate.¹²⁹ These criteria can include having a prior criminal history, a history of substance abuse or mental illness, victim approval, and others.¹³⁰ The goal of this is to be able to connect defendants to these programs as fast as possible in order to maximize positive results.¹³¹ Once somebody is determined to be eligible, they will receive supervision and services that can vary according to the individual’s needs. Most commonly, programs will include urinalysis, restitutions, community service and counseling.¹³² The programs will also include substance use and mental health services when needed to help reduce risk of future re-arrest.¹³³ If an individual successfully completes all program requirements, usually within a certain time frame, then the original criminal charges are dismissed.¹³⁴

In cases of noncompliance, many programs institute sanctions that will modify the conditions of the program rather than kicking out the participant. These can include increasing service hours, drug testing, counseling services, imposing short-term jail placements, or giving written or verbal warnings.¹³⁵ Although some programs have shown decreased recidivism, some programs have failed to gather data regarding recidivism.¹³⁶ However, pretrial diversion programs appear to lead to positive outcomes for participants, including less time incarcerated, avoidance of criminal convictions, and improved substance use and mental health outcomes.¹³⁷ Counties that have implemented diversion program have decreased criminal justice costs as these programs keep people from being incarcerated, reducing overcrowding in jails and prisons.¹³⁸ The programs are also time-effective for courts as they improve processing because diverting offenders prevents court dockets from getting too large.¹³⁹

The Department of State Health Services (DSHS) should also have a forensic director in place to ensure proper allocation and maximum utility of community resources. A person in this position would be able to coordinate existing state and local resources to expeditiously move people out of an institutional setting as appropriate. Another way to ensure best use of community resources is to educate the judiciary and attorneys on alternatives to incarceration.¹⁴⁰ Judges and attorneys may be unaware or skeptical of community services that can appropriately treat some forensic cases, leading them to rely solely on jails and state hospitals. Coupled with a comprehensive record of available local alternatives, this education could encourage better use of community resources. Additionally, the criminal justice system should coordinate follow-up services for offenders with mental illness who are known to be repeat offenders. Linking these people to follow-up services should reduce the risk of recidivism and help break the cycle they are caught in. Relevant mental health information should be gathered early enough to inform judicial and prosecutorial decisions regarding release or diversion.

Intake at the jail is an important piece of this puzzle. This part of the process is the easiest point to gather necessary information. Defendants who are not released at their initial court appearance are booked into jail until bail is posted or the case is adjudicated. For people with mental illness, incarceration increases the risk of decompensation.

Decompensation is the failure to effectively cope with psychological challenges in response to stress, resulting in behavioral problems. To avoid decompensation and ensure the best possible administration of justice, local jail inmates with mental illness should be identified, receive mental health treatment, and have assistance planning for re-entry all starting at intake. Corrections should identify and divert people with mental illness before formal charges are brought. Ideally, this identification will occur before magistration. Screening, assessment and a confidential records check on state mental health databases should be conducted at intake by a mental health professional when possible. This review should inform law enforcement and judicial decision-making about whether an offender could be more appropriately placed in an alternative treatment setting. Early screening and assessment can help determine the most cost-effective and appropriate intervention for those who come in contact with the criminal justice system. Pre-emptive diversion from jail to treatment can increase the likelihood of positive changes in behavior, which will likely reduce recidivism. Further, mental health diversion will alleviate the burden on court dockets, jail capacity, and state hospitals by eliminating wasteful use of those resources on people whose problems would be better addressed elsewhere.

As part of screening, it is important to facilitate information sharing, such as mental health history, between the mental health and criminal justice system.¹⁴¹ In addition to access to mental health history, screening should use a standardized screening instrument and be conducted under the direction of a qualified mental health professional.¹⁴² To expand capability for in-house assessments, policymakers have several options, including expanding the scope of practice to allow psychiatry students or nurse practitioners who specialize in psychiatry to conduct assessments.¹⁴³ Policymakers could also allow jails to employ telepsychiatry to access psychiatrists from a remote location. Following assessment, jails should work with mental health service providers to determine whether certain people with mental illness would be eligible for diversion from the criminal justice system.¹⁴⁴ For those with mental illness who remain in jail, the jail should be capable of providing immediate crisis services and short-term treatment.¹⁴⁵ Jail staff should be trained to recognize crisis situations.¹⁴⁶ To help prevent crises, detainees should be able to continue using the medication prescribed to them before entering jail.¹⁴⁷

Intake should ask about prescription information and get access to medical records that indicate the inmates’ medication regimens so they can try to accommodate this important need. Continuous care is an important piece of keeping people from reoffending. Along with continuing medication, the state should allow counties to suspend rather than terminate Medicaid benefits for inmates.¹⁴⁸ Benefits may be terminated regardless of whether the person is actually convicted of a crime and sentenced to jail.

People may be released from jail with very little notice, not leaving time to reinstate benefits. Reinstatement of Medicaid benefits is a time-consuming and expensive process; reinstating Medicaid can take 14 to 45 days depending on the state.¹⁴⁹ The concern here is during this lapse, untreated individuals will be unable to maintain stability and will be treated in emergency rooms, end up on the streets, or wind up back in jail; each of these places a huge burden on local governments.

Recommendations for the State Legislature

Decriminalize behaviors commonly associated with symptoms of mental illness like criminal trespass and disorderly conduct by making them non-jailable requiring violators to seek treatment or prove some other appropriate remuneration such as victim-offender mediation.
Reallocate corrections funding to assist with initial funding for community-designed mental health diversion programs.
Instead of funding more state mental health hospital beds, provide funding to communities in the form of a block grant giving them the flexibility to build capacity to serve those who perpetually cycle through state institutions like jails and mental health hospitals more effectively according to each community’s unique needs.
Require DSHS to work with the Court of Criminal Appeals to develop training to inform the judiciary about alternatives to inpatient mental health treatment.
Create a forensic director position at DSHS to ensure proper allocation of existing community resources and coordination among the mental health and criminal justice systems. The forensic director can also help monitor local compliance with state law.

Recommendations for Local Governments and Communities

Encourage alternatives to jail when appropriate.
Encourage collaboration between community behavioral health service providers and local jails.
Be proactive about “frequent flyers” by implementing case management for repeat offenders with mental illness.
Reallocate funding to expand community-based alternatives to incarceration that are more effective including the following possibilities:
911 Dispatcher Training
Crisis Intervention Teams
Mobile Crisis Units
Pre-booking diversion programs
Post-booking diversion programs
Reallocate funding to improve processing and treatment as follows:
Use new technology like telepsychiatry to facilitate faster and more accurate screenings and assessments in corrections facilities.
Implement more efficient data tracking systems to improve coordination and transparency regarding people with mental illness in local jails.
Require mental health screening and assessment prior to magistration to inform judicial decisions about release on low bail or personal bond and prosecutorial decisions about eligibility for pretrial diversion programs.

Conclusion

Texas needs to change its public mental health system. The state has been struggling to provide efficient, effective mental health services. The state should delegate its responsibility to provide mental health services to local governments that are already making decisions about how to address people with mental illness in the criminal justice system. This would facilitate better coordination between law enforcement and mental health providers because they would be working through the same level of government.

Although many local governments across Texas have found innovative solutions to problems the state has created for them, local governments have essentially become Sisyphus, trying to push the rock up the hill just to watch it roll down again. If local governments could design tailored community behavioral health services, the programs they have already instituted to deal with the problems the state has thrust upon them might be even more effective. Band-Aid “fixes” will not solve the problems plaguing these two expansive state systems.

The mental health system in Texas is in need of true redesign if the criminal justice system is going to see real improvement in this area. Over the last decade, Texas has been getting “Right on Crime;” it’s time for Texas to take that a step further and start getting right on mental health care, too.

The full footnotes are available at http://rightoncrime.com/2015/06/overincarceration-of-people-with-mental-illness/.

Overincarceration of Mentally Ill Inmates Part 2

April 4, 2016 by County Progress

Pretrial Diversion Across the Country and the Next Steps for Texas to Improve its Efforts and Increase Utilization

Editor’s Note: The following is Part 2 in a series, “Overincarceration of People with Mental Illness,” a report released in June 2015. The full report is available at http://rightoncrime.com/2015/06/overincarceration-of-people-with-mental-illness/. Part 1 ran in our March issue; we will continue the series in May.

By Kate Murphy and Christi Barr

Center for Effective Justice

Texas Public Policy Foundation

Pretrial Diversion Programs and Practices in Texas

The CMHS National GAINS Center describes the many points in which people with mental illness can be intercepted and diverted from incarceration to mental health treatment. Pretrial diversion can occur at two points of interception: at first contact with law enforcement and during initial detention or initial court hearings.⁴² People first come into contact with the criminal justice system in the community through 911 or local law enforcement.⁴³ This contact is the first sequential intercept for developing a criminal justice-mental health partnership.⁴⁴ At this intercept various service-level changes can be made to improve public safety long term. Police can be trained to respond to calls where mental illness is a factor.⁴⁵ Police contacts with people with mental illness should be documented. ⁴⁶ Communities can establish a police-friendly drop-off center, crisis unit, or triage center to stabilize emergencies or crises.⁴⁷ Those who are diverted at this intercept should be linked to follow-up services.⁴⁸ And services should be monitored and evaluated for quality improvement.⁴⁹ The next intercept is after arrest but before trial.⁵⁰ At this stage, arrestees should be screened for mental illness at the earliest opportunity to determine whether they are eligible for diversion.⁵¹ The state should maximize opportunities for pretrial release and link people who are eligible for pretrial release to comprehensive evidence-based services that are proven to help reduce recidivism.⁵² Lacking cross system coordination and limited resources are significant barriers to improving the present use of pretrial diversion for people with mental illness who are cycling through the criminal justice system. But Texas counties are working to make meaningful changes that will link people with mental illness to treatment, use taxpayer dollars more efficiently, and ultimately improve public safety. This section will discuss what Texas is doing right and some areas that need improvement.

Harris County

Harris County has been working hard to improve pretrial diversion efforts for people with mental illness. Harris County operates the largest county jail in Texas with approximately 9,000 inmates, with people with mental illness representing 25 percent of all inmates.⁵³ Because it holds a large population of people with mental illness, the Harris County jail is often referred to as the biggest psychiatric facility in Texas.⁵⁴ The annual cost for an inmate with mental illness in Harris County from 2004-2008 was $7,017, compared to other inmates at $2,599.⁵⁵ Every contact with the criminal justice system comes at a high cost, and many people with a mental illness re-offend and end up cycling through the jail system again and again.⁵⁶ Incarcerating people with mental illnesses has high costs that waste taxpayer dollars and ultimately fail to effectively meet the needs of individuals with mental illness. To help this problem, the 83rd Legislature enacted Senate Bill 1185, creating a jail diversion pilot program in Harris County.⁵⁷ The goals of the program include reducing the frequency of arrests, number of days spent in jail, increasing access to different services, improving quality of life and reducing criminogenic risk.⁵⁸ The pilot program targets people with a serious mental illness, schizophrenia, bipolar, major depression, and PTSD, who have been booked at least three times in two years at the Harris County jail.⁵⁹ People are referred to the program through community providers, MHMRA, courts, or law enforcement, creating many opportunities to divert eligible people away from jail.⁶⁰ Once referred, individuals will receive behavioral health services, health care, housing, rehabilitation services, case management services and peer support.⁶¹ In December of 2014, there were 3,000 total individuals that met the criteria for enrollment into the program, with anywhere from 450 to 500 people in the jail at any given time.⁶² As of May 1, 2015, a total of 154 people had been enrolled in the program.⁶³

(ERON, Please insert Harris County charts near here)

This program connects individuals with mental illness with community-based services to prevent cycling back into jail. Depending on preliminary results, this program has the potential to be replicated in other counties throughout Texas. Although more funding is likely necessary to replicate and expand this pilot program, the results and potential savings could outweigh the initial monetary cost. Because this program relies on many community-based services, the greater focus should on the benefits resulting from improved collaborations between the mental health and criminal justice systems. Any diversion program based on this model should be sure the community has the mental health infrastructure in place to support the program. A diversion program without adequate community-based services would not be able to effectively treat people or accomplish its goals. Therefore, it may be more difficult to replicate this program in counties with limited mental health services. However in counties with established community-based services, the program should be replicable with emphasis on collaboration between the existing services.

Bexar County

Bexar County is regarded as a model for collaboration between the mental health and criminal justice systems. Bexar County has several examples of best practices in jail diversion. For example, in Bexar County the Commissioners Court approved the Mental Health Advocacy Initiative to identify and assist people with mental illness who repeatedly cycle through the criminal justice system.⁶⁴ This initiative focuses on nonviolent inmates with one or more previous incarcerations in the last year.⁶⁵ Each individual in the program gets an individual treatment plan with the input of judges, attorneys, providers, and the participant.⁶⁶ Over the next year, the participant receives intensive case management to ensure long term stabilization.⁶⁷ Case management can include outpatient treatment to assist people with serious mental illness with treatment compliance and court orders, which has effectively reduced incidents of hospitalization, homelessness, arrests/incarcerations, victimizations, and violence.⁶⁸ Additionally, Bexar County has partnered with the Crisis Care Center for its jail diversion program. Since 2003, over 17,000 people have been diverted from incarceration to treatment.⁶⁹ This program has saved taxpayers over $50 million, trained over 2,600 law enforcement officers in crisis intervention, and reduced overcrowding in the Bexar County Jail from over-capacity to 500 empty beds.⁷⁰ The crisis care center has a Mobile Crisis Outreach Team (MCOT) that provides 24-hour mental health crisis screening and assessment, links people to community resources, and facilitates hospitalization if necessary.⁷¹ The Crisis Care Center also has a drop-off destination for psychiatric emergencies where they screen and assess people with mental illness, link people to services, offer 48-hour crisis observation, and assist with mental health warrant applications.⁷² This program allows officers to leave people experiencing a mental health crisis with trained professionals who can assist them. One of Bexar County’s newest initiatives is an attempt to screen and assess every single arrestee at magistration. Upon arrest in Bexar County, every detainee is sent to the Central Magistrate Facility for screening. The University Health System screens for physical health issues and the Judicial Pretrial Services screens for mental illness. If an individual might have a mental illness, they are referred to the Local Mental Health Authority (LMHA), where they will undergo a full mental health assessment. After the assessment, the LMHA can recommend the detainee receive treatment from the mental health system rather than be incarcerated. Bexar County’s effort to screen every arrestee for mental illness could help break the cycle of recidivism that many justice-involved individuals with mental illness are caught in. Other jail diversion programs focus solely on individuals with previously known mental illnesses, but Bexar County’s new program is actively looking for these individuals, aiming to identify those who may otherwise be overlooked. Bexar County’s proactive approach should reduce the number of people with mental illness who are inappropriately incarcerated. This reduction should further the goals of improving public safety and helping individuals in need at a lower cost to taxpayers.

Bexar County is breaking new ground with its mental health screening procedures, which could help some of Texas’ neediest people and create safer communities. Texas should encourage other counties to follow Bexar County’s example of developing cost-effective programs that promote public safety and improve the lives of people in crisis who are stuck in a revolving door of Texas’ criminal justice system.

Other Counties

Williamson County has a strong mental health diversion program.⁷³ Its program includes an outreach team, a crisis intervention team, and resource coordination among mental health and corrections providers.⁷⁴ Williamson County’s diversion program has saved $3.2 million from costs associated with jail bookings to the administration of psychotropic medication and emergency room use.⁷⁵ The diversion program is also associated with reduced use of state hospital beds.⁷⁶

Williamson County also has a Crisis Intervention Team program (CIT) that has created cost-savings.⁷⁷ Crisis Intervention Teams are part of the Sheriff’s Office. CIT programs are designed to improve interactions between law enforcement officers and individuals with mental illnesses and increase safety of all people involved in mental health crises.⁷⁸ They receive specialized mental health training and learn about community alternatives to incarceration. The Williamson County CIT saved the county $2.3 million over the course of two years by diverting 1,088 people with mental illness from jail to community based treatment.⁷⁹

Smaller communities like Smith County are also implementing innovative pretrial diversion programs. Smith County has many nonviolent arrestees, which led county leaders to open the Alternative Incarceration Center (AIC).⁸⁰ The AIC is geared toward reducing the Smith County jail population, protecting the public through intensive supervision (i.e. day reporting), providing employment services, and rehabilitating offenders as they re-enter society.⁸¹ The AIC offers low-level offenders with mental illness assistance through screening, assessment, counseling, symptom management and skills training, and medication regimen compliance.⁸² In the first year since the inception of AIC, the jail population decreased more than 120 inmates per day and Smith County saved nearly $1 million.⁸³ AIC has an average of 289 participants each year.⁸⁴ Some 36 months of program data shows that 88 percent of participants remain successful on regular probation after six months, and 77 percent remain successful after one year.⁸⁵ The diversion program costs about $1 million each year and saves $4.4 million—a net savings of over $3 million for Smith County.⁸⁶ In addition to saving money, lowering recidivism, and freeing up jail space, participants who are working are able to pay restitution to victims and receive specialized services that can help them turn their lives around.⁸⁷ In Brazos County, the sheriff’s office employs four fulltime CIT officers who respond to calls involving a person with or suspected of having a mental illness.⁸⁸ Brazos County’s CIT program provides follow up care to everybody they encounter. Each of the deputies have cases assigned to them and will follow up, weekly or monthly, to ensure that the person has and is taking their medications, to see how they are doing, and to prevent them from going into another crisis.⁸⁹

In Palo Pinto County, law enforcements officers can simply take somebody straight to the LMHA for services rather than taking them to jail if they determine a person needs mental health services.⁹⁰ Law enforcement officers in Burnet County are trained to do mental health assessments on people they come into contact with who present with mental health problems. From there, they will determine whether or not to contact the LMHA for a more formal evaluation and recommendation of services. Their policy is to try and never put somebody who has a mental illness into the jail, but rather get them into an in- or out-patient treatment program.⁹¹ Similarly, Wharton County employs mental health deputies that can issue emergency detention orders and temporarily house a person with mental illness in the sheriff’s office. Then they contact the LMHA to come assess the individual and provide recommendations, usually ending with the deputy transporting the individual to a state hospital or other facility.⁹² Jefferson County has a special program, Assist, Stabilize and Prevent (ASAP), that works to identify people with mental illness in the community that have had contact with law enforcement. Officers then work with those individuals to prevent them from re-entering jail or hospitals. Their program has successfully diverted 400 individuals from being incarcerated.⁹³ Ector County has three specially trained mental health officers that respond to calls involving somebody with a mental illness. The officers will do an assessment on the individual in the field and then transport them to a hospital to get care. Then the officers will transport the person to a treatment facility after a judge signs off on it. The program allows for personal relationships between the mental health officers and people in the community with mental illness to develop, resulting in better outcomes for situations that arise.⁹⁴

Survey: Early Identification of Defendant Suspected of Having Mental Illness

Article 16.22 of the Texas Code of Criminal Procedure, described in the accompanying flowchart, sets out the requirements regarding early identification of a defendant suspected of having mental illness or mental retardation. It requires the sheriff’s office to notify the judge or magistrate within 72 hours if corrections reasonably believes a jailed suspect has a mental illness, which should happen at intake pursuant to the TCJS administrative rule that requires jails to run a check against the CCQ system to determine whether the detainee has a history of mental illness.⁹⁵ The flowchart below describes how Article 16.22 functions. Some indication of how this system is working can be found in a 2008 survey of Texas judges that handle criminal cases. The survey received responses from 244 judges. The judges indicated that 36.6 percent of them learned of a defendant’s mental illness as early as the time of magistration, setting of bond, and appointing counsel.⁹⁶ In about 30 percent of the cases was mental health screening done as early as this point in time.⁹⁷

(ERON, Please insert flowchart in this area)

In an effort to provide more up to date information, the Foundation contacted 153 Texas counties on their specific policies and practices regarding these requirements, receiving responses from 98 counties with various intervention, assessment, and diversion programs for those with mental illness. Almost all of the counties that responded reported that they contract with the Local Mental Health Authority (LMHA) to assess and provide treatment recommendations for people with mental illness who are booked into the jail. However, only 77 percent reported using standard screening forms to identify inmates with mental illness, 41 percent reported running names against the CCQ, and 34 percent reported notifying the magistrate or judge of an inmate’s mental health problems.⁹⁸ Although many counties are using the LMHAs when encountered with inmates with mental health problems, many appear to be lagging behind in their screening process which could result in people falling through the cracks and not receiving proper treatment. By not properly identifying those with mental illness in a timely manner, the use of pretrial services and diversion programs decrease. Many of the counties noted that after booking, a person could be sent to a state hospital for treatment rather than staying in jail. To accomplish this, several counties specified that they will either drop the charges, issue time served, release the inmate on a personal recognizance bond, or get a court order for commitment.

Reliance on the state mental health hospital system is an inadequate response to the problems surrounding people with mental illness in the criminal justice system. As discussed earlier, the state hospitals presently are not capable of handling the large forensic population.⁹⁹

Editor’s Note: Part 3 of this series will run in our May issue and begin with “Room For Improvement: Analysis and Recommendations.” The full footnotes referenced in the article are available online at http://rightoncrime.com/2015/06/overincarceration-ofpeople-with-mental-illness/.

Special Jail Section

November 13, 2015 by County Progress

TEXAS INDIGENT DEFENSE COMMISSION

TIDC Awards Grant to Fund Public Defender Program in Willacy County

On Aug. 21, the Texas Indigent Defense Commission (TIDC or Commission) awarded a two year grant for $313,308 to provide funding for the Willacy County Public Defender Office (WPDO).

Willacy County is currently facing a financial crisis due to the termination of a large Federal Bureau of Prisons contract with the Willacy County Correctional Facility. The funds awarded in August will permit the county to continue operating the program for the next two years and will cover half the cost of operating the program.

“This award was made possible thanks to the Legislature’s appropriation of new general revenue funding for indigent defense, as well as new authority provided to TIDC by the passage of S.B. 1057,” said Judge Sharon Keller, chair of the TIDC. That legislation addresses sustainability grants to support regional public defender programs. The Senate bill was authored by Senator Juan “Chuy” Hinojosa and was sponsored in the House by Rep. Abel Herrero, a member of the TIDC.

“I’m pleased that the Commission has taken the initiative to implement S.B. 1057 in a way that will positively benefit counties that might otherwise struggle to provide effective indigent defense services,” stated Sen. Eddie Lucio Jr., whose senate district includes Willacy County. “As chairman of the Senate Committee on Intergovernmental Relations, I look forward to working with the Commission and other agencies to help Texas better address the needs of our counties.”

The WPDO was created in 2007 with grant funds from TIDC to represent poor people charged with crimes and has been instrumental in maintaining Willacy County’s compliance with the Fair Defense Act.

“Over the past eight years the public defender’s office has become an invaluable part of the local indigent defense delivery system,” shared Willacy County Judge Aurelio Guerra. “We are grateful to the TIDC for providing this funding because without it we would not be able to sustain the program.”

The WPDO is operated by Texas RioGrande Legal Aid (TRLA) under a contract with Willacy County. The funds will be used to join the existing regional public defender program currently administered by Bee County, which also contracts with TRLA to serve as public defender in three counties: Bee, Live Oak and McMullen.

“Willacy County has wholeheartedly worked with Texas RioGrande Legal Aid in an effort to comply with the standards of indigent defense set by the state,” declared Chief Public Defender Abner Burnett. “This has consistently been done without compromising either the responsibilities of the public defender on behalf the client or that of the district attorney on behalf of the State of Texas.”

Grant to Fund New Comal County Juvenile Intervention Center

A $75,000 state grant will allow the Comal County Juvenile Probation Office to open a new intervention center aimed at preventing truancy in New Braunfels.

The New Braunfels Intervention Center will be the first of its kind in the city and will provide tutoring, homework assistance, cognitive and life-skill training, individual therapy and parental training for children ages 12-17 and their families.

“This is a significant step forward in our ongoing efforts to keep kids in school and away from the influences that could lead them down the wrong path,” said Kris Johnson, chief juvenile probation officer for Comal County. “By helping them now, we hope to keep them from needing our help later.”

The center will be similar in scope to the Canyon Lake Evening Reporting Center, which provides many of the same services to juveniles who have been prosecuted or are awaiting prosecution. The New Braunfels facility will serve those who have been referred by their school because of attendance problems or who have been cited for status offenses – activities that are illegal because of the child’s age, such as drinking or smoking.

The two centers are part of a larger effort by Juvenile Probation to offer programs that aim to reduce juvenile detention and recidivism, including equine therapy and even fishing lessons.

“If we can change the course of a child’s life without locking them up, we prefer to do that,” Johnson said. “Even if a juvenile does require detention, the services and programs we offer help them make different choices when they are released.”

The grant to establish the NBIC comes from the Texas Criminal Justice Planning Fund, which is collected from court costs and fees paid by defendants; it will help pay for programming in the center, while the county will pay for two employees.

Comal County to Introduce Court Program Focused on Veterans

On Aug. 13, the Comal County Commissioners Court unanimously approved the creation of a new misdemeanor court program focused on helping struggling veterans receive the support they need.

The Veterans Treatment Court will bring together court, probation, mental health and veterans officials to assess the needs of veterans or active-duty service members who are charged with misdemeanor offenses.

The program will be led by Charles Stephens, judge for County Court-at-Law No. 2, and can function either as a pretrial diversion to avoid conviction, a condition of deferred adjudication, or as a condition of probation after conviction.

“These men and women have risked their lives on our behalf, and many of them return home with physical and mental disabilities that make it difficult for them to adjust,” Stephens said. “The goal is to rehabilitate them and help them become productive members of society rather than simply putting them in jail.”

The specifics of the program will vary based on the needs of each defendant, Stephens said. However, each veteran will receive a veteran mentor to help shepherd them through the program. Those interested in becoming mentors are encouraged to email Stephens’ office, evansa@co.comal.tx.us, for more information.

The veterans program joins similar specialized courts in Comal County focused on offenders addicted to drugs and/or alcohol, and second-time DWI offenders.

TEXAS COMMISSION ON JAIL STANDARDS

Report From the 84^th Legislature

Upon the conclusion of the 84th Legislature, new laws were enacted that will require changes to Minimum Jail Standards. The formal adoption of the amended Minimum Jail Standards will progress through normal rulemaking procedures as outlined in Title 37 Part 9 Chapter 255 of the Texas Administrative Code. Rulemaking requires the Texas Commission on Jail Standards (Commission) to consider public comments on the proposed rules; therefore, proposed rules are subject to change at the November Commission meeting. Below please find information that outlines the enacted legislation, changes to Minimum Jail Standards, and required action of Texas counties.

H.B. 549 by Johnson and H.B. 634 by Metcalf

Both H.B. 549 and H.B. 634 will require changes to the visitation standards, and jails will need to update their visitation operational plan. H.B. 549 mandates that county jails provide two in-person, non-contact visitation periods of 20 minutes in duration. Certain jails may be exempt from the in-person requirement; however, that exemption will be determined by the Commission, as outlined by the statute.

H.B. 634 will require jails to provide access by a legal guardian to a jail inmate including placement of the legal guardian on an inmate’s visitation list, at the guardian’s request. Jails may submit their updated visitation plans to Luz Lozano at any time but no later than Dec. 15, 2015. Please do not submit your visitation operational plans until after the November Commission meeting.

H.B. 875 by Farias

Justice-involved veterans currently make up about 10 percent of jail populations. While current intake screening forms provide for a self-report mechanism, not all veterans will self-identify while incarcerated. To identify justice-involved veterans, the Department of Veterans Affairs (VA) created the Veterans Reentry Search Service (VRSS) specifically for criminal justice agencies.

H.B. 875 mandates the use of the VRSS by all facilities under the Commission’s purview. The VRSS is a web-based application that will allow jails to upload their inmate roster in a Comma Separated Value (CSV) format. How often jails should conduct uploads is dependent on each county’s inmate population and is at the discretion of each county. The VRSS will access the Department of Defense database and will send information back to counties on inmates that have military service. At the same time the VRSS delivers information to counties, the VRSS will also notify the VA’s Justice Outreach Officer of a justice-involved veteran.

H.B. 875 also requires counties to assist identified veterans with applying for federal benefits. The author of the legislation has approved for counties to simply provide a referral card to the identified veteran. The Texas Veterans Commission (TVC) is printing the card (at TVC cost), and the Commission will distribute the cards to counties (at Commission cost).

Once a veteran is identified, either through self-reporting or the VRSS, county officials will simply give the veteran the referral card. Because another state agency is providing the referral cards, please limit issuance to those individuals who self-identify as a veteran or a VRSS–verified veteran. The decision to send in the card is solely left to the veteran and will not require further involvement of the jail. A jail may use commissary funds to place a stamp on the referral card, but it is not required.

H.B. 1140 by Israel

Legislation enacted in 2009 required the Commission on Jail Standards to establish health care standards for pregnant inmates. However, interested parties continue to allege mistreatment within county jails and assert that state officials lack adequate information to evaluate such care across Texas. H.B. 1140 seeks to provide the state with reliable information to assess the status of pregnant inmate care and related procedures in Texas.

To capture the current status of pregnant inmate care, H.B. 1140 requires the collection of data for a one-time report, including the number of miscarriages. H.B. 1140 reporting will be conducted in two phases. The first phase is the reporting of miscarriage information. The data collection for miscarriages begins on Sept. 1, 2015, and will conclude on Aug. 31, 2016. Please report miscarriage data on a monthly basis by the 5th of each month. The Commission has created a reporting form for the reporting of miscarriages.

While H.B. 1140 mandates only reporting the number of miscarriages, the Commission is giving the counties the option to report more-detailed information. The Commission urges counties to provide the optional information as it will give policymakers a better understanding of the entire issue when they reconvene in 2017 for the 85th Legislature. The second phase of H.B. 1140 also requires the reporting of certain policies and procedures of pregnant inmate care that will be due by Aug. 31, 2016. The Commission is required to create a reporting form and will issue the reporting form to counties no later than April 2016.

Key Dates

1, 2015 – Counties shall begin collecting the number of miscarriages.
1, 2015-Oct. 30, 2015 – Counties should investigate ability of Jail Management Software (JMS) or county IT to convert/export inmate roster to CVS format and upload to the VRSS.
30, 2015 – Deadline for counties to establish a VRSS account with the VA. Web address is https://vrss.va.gov/. Counties should begin writing policies and procedures for uploading, receiving and documenting VRSS data. Counties are not required to submit VRSS polices to the Commission.
5, 2015 – 1st monthly report of miscarriage information due to the Commission.
2, 2015 – Counties should be on the VRSS and actively uploading data at least once a day. Counties with major issues with VRSS should report that information to their jail inspector
TBD Distribution of veteran referral cards to counties to be determined. Once counties receive their allotment of referral cards, counties should begin documentation of VRSS verification and distribution to veterans. Because another state agency is providing the referral cards, please limit issuance to those individuals who self-identify as a veteran or a VRSS–verified veteran.
15, 2015 – Deadline for initial submission of revised visitation plans. Final Commission approval for visitation plans will occur throughout the first half of 2016. Prior to submission, please review for grammar/spelling errors and ensure operational plans comply with all elements of standards. Please know/remember that the Commission has only one staff member to review and approve all operational plans for all 244 facilities.
April 2016 – Commission will distribute reporting form for H.B. 1140 policies and procedures for the care of pregnant inmates.
31, 2016 – End of collection period for miscarriage information.
1, 2016 – H.B. 1140 Pregnant Inmate Policies and Procedures reporting form due from counties.

Sept. 5, 2016 – last report of miscarriage information. Aug. 2016 is the final miscarriage report, and no other miscarriage reporting is required.

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