Raising the Age: Is Texas Going “Soft on Crime?”

In the past decade, the Supreme Court has ruled that the death penalty and mandatory life without parole for crimes committed while under the age of eighteen amount to cruel and unusual and are therefore unconstitutional.[1] [2] The Court, or at least a majority of it, appears to believe eighteen is the appropriate age to treat someone as an adult. Justice Kennedy wrote that he based his decision on contemporary research that shows that young teens simply do not have the same decision-making skills as a middle-aged adult. However, many states, including Texas, use seventeen as the age of criminal responsibility. [3] While a high school junior might not be able to vote or buy cigarettes, she could be treated and perhaps more importantly, sentenced, as an adult. If the highest court in the US seems to be telling us the eighteen is the age where we should treat kids as adults, why do some states still have laws on the books that treat seventeen-year-old kids as adults?

As I was reading over two bills up for consideration in the Texas House of Representatives, HB330 and HB53, that would raise the age of criminal responsibility to eighteen, I couldn’t quite figure out a couple of things. First, why has it taken almost a decade after Roper to change these rules? And second, who would oppose this and why would they oppose it? I am not naive to the fact that raising the age could cost the state money. But from a philosophical or political viewpoint, as I read the bills, it seemed to be pretty straightforward. If SCOTUS and current research says the age where a state can inflict the ultimate punishment is eighteen, then the age of criminal responsibility should be eighteen as well.

However, I gained a different perspective following a conversation with a friend over drinks last weekend. We were discussing what we had been working on that week and I mentioned I had been reading the two bills mentioned above. My friend is not a lawyer and isn’t particularly politically active. After briefly summarizing the bills, my friend’s immediate reaction?

“So Texas is going softer on crime?”

He immediately connected the idea that treating more people as kids to going soft on crime. I was unprepared for such an immediate and strong reaction. As Justice Kennedy noted, kids should be treated as kids because they do not have the same capability as adults to make decisions. Treating them as such does not mean you are soft on crime. Instead, it reflects the reality of their capabilities. However, if my friend’s comment is reflective of a large segment of the public, then perhaps changing the Texas law could take even longer.

[1] Roper v. Simmons, 540 U.S. 1160 (2004).

[2] Miller v. Alabama, 132 S. Ct. 2455 (2012).

[3] State-By-State Legal Resource Guide- accessed Feb 9- http://www.usfca.edu/law/jlwop/resource_guide/

New Texas Law Gives CASA Electronic Access to DFPS Case Files

On September 1, 2013, HB 1227/SB 963 went into effect. This new law requires that the Texas Department of Family and Protective Services (DFPS) allow the Court Appointed Special Advocate (CASA) assigned to an individual case to have electronic access to that DFPS case file. In addition, CASA can upload documents to the DFPS case file. San Antonio CASA says that the primary purpose for this new law is to create a way for CASA and DFPS to share information more efficiently and effectively.

Child Advocates, Inc., Harris County’s CASA program, says that it is important for CASA volunteers to be able to get information on the children they are appointed to in a timely manner. In addition, this new law is beneficial to DFPS, because CASA volunteers can easily share information vital to the case and the children’s wellbeing with DFPS caseworkers and supervisors. Child Advocates, Inc. provided this real life example to illustrate this:

“The following is an example of a case where the Child Advocate volunteer played an integral role in gathering information necessary to prepare for trial. The advocacy coordinator was able to bring about a critical change in the initial investigation. It became apparent the change was needed because of the information gathered by the volunteer.

This family is composed of a mother and her six minor children. The mother’s minor children have been removed from her home for the third time because of her drug use. The children were in foster care for approximately a year before they were returned home, however, after a few months after the children were placed at home, the mother tested positive for drugs again. After the children came into care again, the Guardian Ad Litem (GAL) began working with the family. This included visiting with extended family members (which the caseworker had never met with). It was through these visits that the GAL discovered that the mother had been scapegoating (abusing only one of her children) during the time the children had been returned to her.

According to family members, the mother had expressed many times that she did not love this child and that she had never bonded with him. These family members had seen bruises on the child and the mother had told them that she had inflicted these injuries on the child. There had been a referral made to DFPS, but the alleged abuse had been ruled out. The mother had even made references to wanting to kill the child.

Once the advocacy coordinator was made aware of the allegations the relatives were making, she made a call to the doctor that saw the child upon his return into DFPS custody. The child’s physical condition was consistent with what the relatives were reporting.  He had tie marks around his wrists, bruises on his body, vitamin D deficiency, and was very malnourished. One of the relatives had seen the child tied at the ankles.

Since the children came back into care because of the mother’s drug abuse, the issue of this child’s physical abuse was being overlooked. The volunteers and advocacy coordinator were concerned that if the mother completed her drug treatment the children would be returned to her without the physical abuse being validated. This would likely result in the child being physically abused and neglected again. By anticipating this, the advocacy coordinator was able to use the information received by the volunteers to persuade DFPS to look back at the investigation that led to the children’s removal. Only the drug abuse was mentioned. The advocacy coordinator was able to contact supervisors and directors within DFPS in order to have physical abuse added as an allegation and subsequently a finding that the mother did abuse the child.

This result took weeks to accomplish. This information and validation of abuse will be critical at trial in order to make sure the children are not returned to this mother if she does not make the changes necessary to prevent the children from being abused again. Addressing only the drug abuse will not be enough.

This would not have occurred without Child Advocates’ involvement in the case.  Child Advocates’ volunteers were able to make phone calls, meet with families, and eventually uncover this information that would have remained hidden. This may eventually save the life of this child if he is not returned to his mother.”

Texas State Representative Dawnna Dukes supports the new law, because

“CASA volunteers have proven to be significant partners with the state in ensuring our most vulnerable children are safe and secure by prioritizing their well-being. No longer will CASA have to expend time-consuming visits to child protective services offices to review paper files. By providing electronic access to certain case files we are able to welcome a more efficient and effective system. This system provides the necessary tools for caseworkers to have the most up to date and accurate information; ensuring that every child’s best interest will be represented by his or her advocate.”

This requirement, though, is dependent on DFPS having the available financial resources to develop and implement the necessary internet application that would give CASA electronic access to DFPS records. The bill authorizes DFPS to use money appropriated to DFPS and money received as a gift, grant, or donation to pay for the costs of developing and maintaining the Internet application and authorizes DFPS to solicit and accept gifts, grants, and donations for such purposes.

Hopefully, noting the potential benefits for all parties involved, DFPS bureaucrats and the Texas legislature will allocate the necessary funds to implementing this new law.

For more information about Child Advocates, Inc., click here: http://www.childadvocates.org/

Photo courtesy of Texas CASA

logo-texas-casa

Monday’s Children and the Law News Roundup

Appeals Court Backs Coaches in Disclosure of Students Sexual Orientation, Education Week

A federal appeals court has ruled that two Texas high school softball coaches are immune from a student’s privacy lawsuit because there was no clearly established law barring school officials from discussing a student’s private matters, including her sexual orientation, with the student’s parent.

The 2-1 decision by a panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, comes in the case of a mother who sued the Kilgore Independent School District and various officials, alleging that the two softball coaches confronted her 16-year-old daughter about whether she was a lesbian and then “outed” her during a meeting with the parent

Texas Sentences for 17 Year-old Murderers Fine as They Are: No Need for Special Session Call, Grits for Breakfast

So far, Gov. Perry has resisted adding anything to the special session call besides redistricting and Grits’ must admit I’m grateful. Unless he surprises me and put warrants for cell-phone location data on the list (which he should), not much good can come of any of the criminal-justice topics the Governor is most likely to add to a special session which some, like Lt. Gov. Dewhurst, would like to fill with right-wing red meat.

One surprising omission so far has been the failure of the 83rd Legislature to establish a legal punishment for 17-year old capital offenders. Texas treats them as adults but the US Supreme Court considers them juveniles. So SCOTUS rulings banning the death penalty and life without parole (LWOP) for juveniles have left Texas with no legal punishments on the books for 17-year olds charged with capital murder. They can still be charged with “regular” murder, which could get them a sentence of up to 99-life, but with the eventual possibility of parole

Data: Juvenile Detentions Down, The Tribune-Democrat

HARRISBURG — The number of accused juvenile delinquents taken from their homes by court order dropped more than 29 percent from 2007 to 2011, government data shows.

While the trends are encouraging, advocates note that Pennsylvania had plenty of ground to make up.

Through 2010, the most recent year in which national data is available, Pennsylvania had the highest rate of juveniles in out-of-home detention, according to data compiled by the U.S. Department of Justice. And while most other big states had seen the number of juveniles placed in out-of-home detention decrease over the decade leading up to 2010, the number went up in Pennsylvania.