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. 

 

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. 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. 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. 

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.