Compounding Errors in Texas Criminal Justice

In recent weeks, two failed criminal justice policies — our treatment of 17-year-olds as adults, and our money-based system of pretrial release — have collided to create the potential for a terrible outcome for hundreds of Texas youth. Harris County officials, in an effort to comply with federal laws passed to protect inmates under 18 from sexual assault and rape, made the decision to ship off 17-year-olds who cannot afford bail to a facility 160 miles from their families, attorneys, and support networks before they have even been convicted of any crime.

In Texas, 17-year-olds are still required by law to attend school full time; most are high school juniors and seniors. They can’t vote; they can’t register for the military. Yet, if they are arrested and charged with a crime, they are treated like adults. They are booked in an adult jail, their parents are not required to be notified, and they are tried and sentenced as adults. Contrast this with 41 states where 17-year-olds are referred to the juvenile justice system. Every parent knows that 17-year-olds are still kids with developing brains. And while they must be held accountable for their actions — their mistakes should be handled as such. Research tells us that 17-year-olds are capable of rehabilitation — which is more of a focus in the juvenile than adult justice system.

Seventeen-year-olds are very vulnerable and often experience trauma when housed with older offenders. Given their increased risk of sexual assault and physical violence in adult facilities as well as their higher suicide rates when housed with adults, the federal Prison Rape Elimination Act (PREA) requires all jails to separate 17-year-old (and younger) individuals from adult inmates by sight and sound.

Harris County has lacked a plan for complying with PREA for purposes of housing 17-year-olds; their current jail is overcrowded and has no place to separately house these youth. So Harris County has reportedly decided to contract with Limestone County to house all of the 17-year-olds who are awaiting trial in Harris County’s system at a private jail 160 miles away from Houston.

This means that if your high school student gets accused of a crime and you don’t have enough money to bail him out, he’s sent to jail 160 miles away in another county to await trial. It’s at least a five-hour roundtrip journey to visit him. Not to mention, it’s incredibly difficult for his attorney to have regular conversations with him to help prepare for trial, thereby increasing the chance he will be convicted. And while PREA compliance is critical to ensuring safety for 17-year-olds, this facility is privately operated, and private prisons have been found to have a lower level of safety and security compared to government-run facilities. The operator of the jail, LaSalle Southwest Corrections, has actually been cited in the past for failing inspections and concerns over inmate safety.

And to reiterate: The young people being shipped off to Limestone County have not yet been convicted of any crime. Many are accused of low-level misdemeanors and nonviolent offenses; our review of available Texas jail data indicates 17-year-olds are commonly booked for theft, possession of marijuana and misdemeanor assault (i.e., fighting). These low-risk defendants could safely be released to their parents while waiting for court date. Even most moderate-risk defendants could also be sent home with some level of supervision by Harris County Pretrial Services depending on their circumstances. But this is where the collision occurs with Harris County’s particularly bad policy around bail.

Harris County sets defendants’ bail according to a bond schedule, where the bond amount is dictated by the criminal charge. If you can’t afford the bond amount, or 10% of it to pay a bail bondsman, then you’re out of luck. You’re left in jail until your trial date, or in many cases, until you’ve decided you can’t take one more day in jail and plead guilty to time served regardless of your guilt. Any county has the option of letting defendants out of jail without a money bond, but in Harris County like other Texas counties, these “personal recognizance” (PR) bonds are rare. In Harris County, more than half of all misdemeanor defendants are held in jail until trial, and only 8.5% of misdemeanor defendants are granted PR bonds.

Just like putting 17-years-olds in the adult system, the current money bail system is bad policy that contradicts academic research and best practices. Instead, the county should be assessing the risk level of each individual booked in jail — both the risk that they commit a new a crime while out on bail and the risk that they fail to show up in court — using one of the widely used tools proven to be able to predict such risk. Judges should readily grant release on personal bond to low- and moderate-risk defendants, with conditions like supervision only if necessary to ensure community safety or court appearance, and only keep high-risk defendants in jail. Harris County has said they are planning to implement such a tool for a while, but it hasn’t happened yet.

The convergence of these two bad policies has led to this heartbreaking situation for Harris County youth. But all hope is not lost . We are working with policymakers to encourage them to introduce legislation this session that will solve one of these problems completely, and go a long way in helping with the other:

• Advocates are working with policymakers on legislation that would raise the age of juvenile court jurisdiction, keeping 17-year-olds in the juvenile system.
• Legislation will also be introduced to overhaul the bail system, requiring risk-based pretrial release decisions and widely available PR bonds.

Call your state representative and state senator to tell them you support both reforms. Until then, Harris County should do everything in its power to release any 17-year-old who does not pose significant risk of flight or public safety, and for the tiny percentage who cannot be safely reduced, find a facility closer to home.