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“A way to throw kids away”: Texas’ troubled juvenile justice department is sending more children to adult prisons

By Jolie McCullough, The Texas Tribune

“A way to throw kids away”: Texas’ troubled juvenile justice department is sending more children to adult prisons” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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Desperate to restore order within the walls of the five youth prisons it operates, the Texas Juvenile Justice Department has been asking judges to push more of its most troubled kids into the adult prison system.

Last year, a depleted workforce left children locked in cells up to 23 hours a day, using water bottles and lunch trays as toilets. Self-harm behavior skyrocketed among the almost 600 youths held in TJJD facilities, nearly half of whom spent some time on suicide watch. The agency has since scrambled to recruit and retain more officers.

One approach to alleviating the chaos has been to shift more youth out of the ever-in-crisis juvenile prison system into the adult one. Lawmakers and prosecutors have promoted the idea to rid TJJD of its most disruptive and violent detainees.

“The thought was how can we get these 10% of kids out of population, so the kids who are doing well and are being rehabilitated aren’t being swept in with the kids who are assaulting staff, assaulting kids,” said Jack Choate, executive director of Texas’ Special Prosecution Unit, which pursues cases of crimes committed in prison.

But youth justice advocates have condemned transferring more children from the juvenile justice department — which has a mission of rehabilitation and treatment — into the harsher, punitive adult system, run by the Texas Department of Criminal Justice.

Children shouldn’t be tossed aside because they are failing in a failing system, the advocates argue. And they claim it’s not just the most dangerous youth being transferred, but also sex-trafficking victims and children with severe mental health needs who need the most help but may react negatively to being restrained or verbally accosted by staff, a common occurrence in corrections facilities.

Multiple studies show children incarcerated in adult facilities are significantly more likely to kill themselves than those housed in juvenile facilities. Texas’ adult prison system is well known for its severe conditions, and prisoners are typically checked on much less regularly.

“It seems we really are just using TDCJ as a way to throw kids away,” said Alycia Castillo, policy director at the Texas Center for Justice and Equity. “My suggestion would be to actually treat the kids that have those most concerning behaviors. … Locking them in a cell in an adult prison to be forgotten about is not the way to do that.”

[Texas imprisoned Joshua Keith Beasley Jr. when he was 11, purportedly for his own good. Five years later, he returned home in a casket.]

TJJD spokesperson Barbara Kessler said the increasing transfers reflect the growing number of children being committed to TJJD for violent crimes. Still, she said the agency “exhausts all appropriate resources before recommending a youth be transferred to TDCJ.”

“The 8 youngest transfers in 2022, those who were age 16 at transfer, were responsible for 110 staff assault allegations and 102 allegations of assaults on other youth – with 121 of these allegations (against staff or youth) being upheld in disciplinary due process hearings,” Kessler said in an email this week.

TJJD could not say how many of the assaults resulted in injuries requiring medical treatment. An assault on a public servant that causes any bodily injury, no matter how serious, is at a minimum a third-degree felony, which carries a punishment of up to 10 years in prison.

Last year, TJJD transferred 51 of its nearly 600 incarcerated youth into adult prisons with the approval of juvenile court judges, according to department data. The year before, there were 29 transfers.

Most of the transfers were largely expected, involving 18-year-olds who committed violent crimes as minors and were set to age out of the juvenile system at 19. But a dozen of the youth transferred in 2022 were under 18, compared to five in 2021.

Half of the 12 were sent to TDCJ early, to finish off their original sentences on serious charges in the adult system because TJJD deemed them too dangerous, disruptive or unengaged in rehabilitation programming.

The other six were originally incarcerated on lesser sentences but were moved to TDCJ after committing a new crime while in a juvenile facility. The crimes almost always involved assaulting or harassing a prison officer — incidents that can vary wildly from violent attacks that land an officer in the hospital to spitting at someone.

Among them was a 16-year-old boy who reportedly committed suicide six months after he was sent to an adult prison.

Joshua Keith Beasley Jr. had a lengthy history of mental illness and suicidal behavior and was first committed to TJJD at age 11 for kicking a school employee while on probation for vandalizing property. He was shipped out to a TDCJ prison after hitting and spitting on an employee, the last of multiple cases he racked up in TJJD. In the two years before his transfer, he was hospitalized at least 12 times for severely harming himself.

Seven TDCJ employees now face termination for allegedly failing to properly monitor Joshua in the adult prison.

Castillo said Joshua is a tragic example of why TDCJ shouldn’t be responsible for children.

“For kids that are experiencing such a level of destabilization that they are incredibly violent, they should be in the most intensive services,” she said. “But instead you see kids like Joshua.”

TJJD pushed him out because they couldn’t handle his repeated suicide attempts and assaultive outbursts, she said. In TDCJ, he was left alone to die.

“If a kid is not thriving at TJJD, we should ask the question: Why? And if it’s due to poor conditions in the unit, a lack of treatment being provided, a lack of education being provided or, in some cases, I’ve had actual abuse by TJJD staff that may explain why the kids have failed,” said Elizabeth Henneke, an attorney and founder of Lone Star Justice Alliance, which represents youth facing transfer to the adult prisons.

TJJD hit a historic point in its staffing crisis last year, with more than half of its officer positions unfilled for months. Sports seasons were canceled, education classes were replaced with work packets and meals were eaten in prison dorms instead of a cafeteria. Children were routinely kept almost all day in their small, often windowless, cells without toilets.

During the turmoil, youth hurt themselves more often, and there were spikes of reported assaults on staff within multiple facilities, according to agency reports.

[Almost 600 Texas youths are trapped in a juvenile prison system on the brink of collapse]

“Kids in the facility sometimes harm the guards and harm each other,” Castillo said. “It’s terrible that that’s happening, and at the same time there are … elements of their incarceration that makes it really likely for them to get that type of charge.”

At times, Henneke and Castillo said, youths are charged with assault for relatively minor interactions, potentially disrupting the child’s entire life and routing them deeper into the criminal system.

“We’ve seen kids getting charged for an assault on a public servant when an officer fell and hurt his knee. We’re seeing assault on a public servant when an officer is attempting to place a kid in a restraint and sprained [her wrist],” Henneke said. “Those are potentially second-degree felonies with decades of consequences.”

The concerns of the youth justice advocates, however, have largely fallen on deaf ears in at least one side of the state Capitol in Austin. As lawmakers again aim to reform the state’s troubled juvenile prison system during TJJD’s decennial review, several proposed changes would likely funnel even more kids into adult prisons.

Two bills passed by the Texas Senate with bipartisan support include provisions that would make more TJJD detainees eligible for transfer to the adult system and require TJJD to seek transfers for some youth if they are found to have assaulted officers.

Currently, the agency has discretion on pursuing transfers. Jana Jones, the juvenile division chief for the Special Prosecution Unit, said that former TJJD director Camille Cain in some cases did not move to transfer youth who had picked up new charges for crimes in TJJD because “she didn’t believe they should go to prison.”

(Cain quit without giving notice or reason last April, the same day the governor announced the withdrawal of federal coronavirus aid funds from her crumbling agency to pay for his border security mission.)

TJJD, however, does not have full control over deciding whether youths who commit a new crime while in a youth facility end up in adult prison. In Texas, 17-year-olds are considered adults in the criminal system, and prosecutors can pursue adult charges against them for crimes committed in TJJD with or without the department’s agreement.

Asked about concerns of children unnecessarily being sent to TDCJ, including Joshua, for such things as spitting on an employee or shoving an officer during a restraint, state Sen. John Whitmire said after leading a meeting of the Senate Committee on Criminal Justice last month that “there are no shovers there.”

“You’ve got to commit a felony to get there, and then if you commit another felony, I think you get them out of that environment,” said the Houston Democrat, a longtime critic of the youth justice system.

Castillo pushed back on the characterization, arguing the juvenile prisons are meant to rehabilitate the most difficult youth.

Since 2007, Texas’ juvenile justice system has dramatically shifted to focus on putting as few kids in state prisons as possible and keeping them closer to home. The juvenile prison population has dropped from about 5,000 to fewer than 600. The ones who remain imprisoned today are there because they have committed a felony and officials decided they couldn’t be rehabilitated at the local level, often because of violent behavior, severe mental health needs or both.

“It’s a little bit of a contradiction because on one hand they’re saying, ‘Oh, the 600 that are in [TJJD] are just the most violent.’ But then they’re also saying, ‘Oh, there’s just a small portion of them that are ruining it for everybody,’” Castillo said. “You can’t have both.”

There are two ways children in Texas can be sent to juvenile prisons, and each path creates a different probability that they will end up transferring to the adult system.

If they commit one of numerous serious crimes, like murder or aggravated robbery, they can receive a determinate sentence, which can extend to 40 years. Before they age out of the juvenile system at 19, their original convicting judge decides in a transfer hearing if they should finish their sentence on parole or in an adult prison. (Since 2018, only a few teens serving determinate sentences each year have been released to adult parole instead of prison, according to TJJD data.)

More children, though, enter TJJD on indeterminate sentences. They must stay at least a minimum amount of time — typically between nine months and two years, and otherwise are released when prison officials decide they have successfully completed the rehabilitation that is meant to keep them, and society, safe.

Transfers for detainees on determinate sentences typically happen shortly before their 19th birthdays. Youth serving indeterminate sentences are not eligible for transfer to TDCJ. But there are ways around these standards.

For example, TJJD can request a transfer for a determinate-sentenced youth any time after they turn 16. And indeterminate sentences can quickly turn into determinate ones if a child commits a certain crime or multiple felonies within TJJD. Those pathways to TDCJ aren’t always followed and are largely at the discretion of TJJD.

Many lawmakers are looking to take away some of that discretion this year with the two measures that have already cleared the Texas Senate.

As passed by the chamber, Senate Bill 1727, a crucial bill that authorizes TJJD’s continued existence after what is known as a sunset review, would require the agency to request a transfer to TDCJ if a teen serving a determinate sentence commits a new crime while imprisoned. Such crimes would include all first- or second-degree felonies, as well as the less severe but frequently pursued charge of assaulting a prison officer.

In the last five years, nearly 60% of all adult criminal charges pursued against youth in TJJD were for alleged assaults against a public servant, according to agency data. Another 28% were for harassing TJJD employees.

The Texas House, however, is moving to alter SB 1727 significantly. On Thursday, the Juvenile Justice and Family Issues Committee voted out a reworked version of the legislation, which in part removed the provision to require TJJD to request the transfers. It’s unclear if the final version of the bill, which still needs approval from the full House and sign on from the Senate, will keep the language out.

The other bill, Senate Bill 2589, would expand the range of crimes that can lead to long-term, determinate sentences and likely transfers to TDCJ — almost any felony committed while in youth prison would qualify a kid for such a fate. State Sen. Charles Schwertner, a Georgetown Republican, authored both Senate bills, driven by his role as the chair of the Sunset Advisory Commission.

“SB 2589 aims to deter felony violence that can occur, that does occur, within TJJD facilities by establishing a zero-tolerance policy against violence against TJJD staff and other youth,” Schwertner said on the Senate floor this week ahead of the bill’s passage.

He noted the bill would affect only a small number of youth who are violent but not currently eligible for transfers. He estimated in the last two years there were about 10 “repeat felony youths that need, unfortunately, to have to suffer the consequences.”

Choate, of Texas’ Special Prosecution Unit, said the legislation would give more options for prosecutors and judges to hold youth accountable.

“A lot of these kids would come in on an indeterminate sentence, and the assault on staff would not qualify for a determinate sentence, which is the gateway sentence into TDCJ,” he said. “Now you’ve put TDCJ on the list of options, while giving that kid an opportunity to do right in TJJD.”

Referring to youth like Joshua, Choate and Jones said no teen is pushed for a transfer or into an adult charge on a dime. Prosecutors instead look at the entirety of the youth’s records, including what treatment they’ve been offered, their medications and the number of disciplinary cases they’ve racked up.

“A lot of our kids do have some mental health issues, so we look at the big picture,” Jones said. “It has to be a balancing act, but sometimes with certain youth, you get to the point where we don’t have anything else you can do. We’ve got to get them out of there.”

Even with an increase in transfers and legislation that would push for more, Choate said “it’s not like TJJD is some TDCJ factory.”

For advocates like Castillo and Henneke, moving children into prisons should never be the only solution. In a committee hearing on the sunset bill last month, Castillo argued with Whitmire over how to handle the problem.

“What would you do with them?” the senator asked, referring to what he called the most violent and dangerous youth.

Castillo responded that the ones exhibiting the most challenging behaviors need the most intervention that is developmentally and age-appropriate for them. After the hearing, she clarified that such intervention includes medication, support and specialized behavior services that require intense training and higher compensation for the employees providing them.

“My suggestion would be to actually treat the kids that have those most concerning behaviors and get them what they need,” she later added in an interview with The Texas Tribune. “Because if they don’t die along the way … they will come back to the community one day.”

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