Articles Posted in Juvenile

The term “probation” applies to a variety of outcomes in criminal cases, usually ordered by a court as an alternative to a jail or prison term. Courts impose sentences based on statutory authority and sentencing guidelines, and they often have discretion to “probate” sentences for a specified period of time. If the defendant abides by all of the conditions set by the court for the duration of the probation period, their case will be closed. If they do not meet all of the requirements, or they commit an act found to be in violation of their probation terms, the state may ask the court to revoke their probation. This can result in the imposition of the original sentence. When probation revocation coincides with another criminal case, the proceedings can appear very confusing. A recent case in a Georgia court, for example, involved a man acquitted in a criminal case but sent to prison anyway because of probation revocation.

Texas uses the term “community supervision” to refer to “a continuum of programs and sanctions” that a court may order. Tex. Code Crim. P. Art 42A.001(1). Two types of community supervision are possible:

– “Probation” generally refers to the suspension of a sentence after an adjudication of guilt, based on either a verdict or a plea. The court enters a finding of guilt or recognizes a plea of no contest and imposes a sentence. Rather than ordering the defendant to begin serving the sentence, however, the court orders that the sentence be probated, identifies the length of the probation period, and sets conditions for the defendant.
– “Deferred adjudication” is a form of community supervision in which the court accepts a defendant’s guilty or no contest plea, but it does not enter a final adjudication of guilt. Id. at Art. 42A.101. The court orders services and sanctions for the defendant, much like with probation.

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The Texas criminal justice system primarily deals with adults suspected of, charged with, or convicted of criminal offenses under the Penal Code. A separate system deals with juvenile offenders. According to the Texas Juvenile Justice Code (TJJC), the purpose of this separate system is, in part, “to remove…the taint of criminality from children committing certain unlawful acts,” and “to provide treatment, training, and rehabilitation.” Tex. Fam. Code §§ 51.01(2)(B), (C). The goal of a juvenile proceeding is supposed to be the rehabilitation of the child, with confinement being a last resort. A recent study of incarceration of juveniles in Texas found that more than one-fourth of children in state custody in 2015 were there for non-criminal matters, also known as “status offenses.”

The TJJC defines a “child” as someone who is at least 10 years old, but younger than 17. Id. § 51.02(2). This definition also applies to someone who is 17 or 18 years old but has been convicted—or the juvenile court equivalent—for conduct that occurred before they turned 17. The state’s definition of “delinquent conduct” by a child includes almost anything that violates the Texas Penal Code, as well as various acts that are only prohibited for children. Id. § 51.03. State law defines a “status offender” as a child involved in a case that would not result in criminal prosecution if an adult engaged in similar conduct, such as “running away from home,” being a minor in possession of alcohol, or “a violation of standards of student conduct” resulting in expulsion. Id. at § 51.02(15).

The Texas Juvenile Justice Department (TJJD), which oversees juvenile cases throughout the state, was created by SB 653 in 2011. That bill abolished two agencies, the Texas Juvenile Probation Commission and the Texas Youth Commission (TYC), and consolidated their functions in the TJJD. The TYC had operated state juvenile correctional facilities since 1957, but it faced numerous scandals and lawsuits related to alleged abuses by officers and conditions in its facilities. A lawsuit filed against the state in 2008, for example, alleged that girls at a facility in Brownwood were “frequently subjected to punitive solitary confinement” in harsh conditions, among other abuses. K.C. et al. v. Nedelkoff et al., No. 1:08-cv-00456, complaint at 2 (W.D. Tex., Jun. 12, 2008).

Of the thousands of criminal cases brought by federal, state, county, and local prosecutors around the country each year, very few result in an actual bench or jury trial. Many or most cases end with a plea bargain of some sort. Modern technology has allowed law enforcement to develop electronic monitoring systems as an alternative to incarceration. These systems are now widely used by criminal courts, juvenile courts, and probation and parole officers. Electronic monitoring devices allow officials to monitor individuals’ movements and locations. In some cases, the use of these systems raises new civil rights questions. Technological and administrative shortcomings can also contribute to situations in which the electronic monitoring itself prevents a person from fulfilling other obligations in a criminal case.

Electronic monitoring can take several forms. The Pretrial Services Division in Travis County, Texas describes two systems that it may use. “Radio Frequency Electronic Monitoring” involves the use of a device—commonly worn as an ankle bracelet—that transmits a signal if it is carried outside a designated area. This type of device is used for house arrest and other situations in which an individual must remain at home at designated times. “Global Positioning System Electronic Monitoring” allows officials to determine an individual’s location and track their movements in order to monitor compliance with court requirements.

Several provisions of Texas law allow for electronic monitoring. In criminal cases, courts can require the use of electronic monitoring to enforce a sentence of house arrest in lieu of a jail sentence. Tex. Code Crim. P. Art. 42.035. A court may require electronic monitoring as a condition of release from jail on a personal bond. Id. at Art. 17.43. Electronic monitoring may also be used as an alternative to incarceration in juvenile cases. A court can order electronic monitoring as part of the civil commitment system for certain convicted sex offenders. Tex. Health & Safety Code § 841.081 et seq.

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The Texas juvenile justice system operates in parallel to the criminal system. It provides a means to deal with unlawful activity by minors, while also recognizing that they are not adults. Under current law, the juvenile justice system’s jurisdiction ends when a person turns 17. A bill that recently passed the Texas House of Representatives, HB 122, would raise this to 18. Supporters of the bill argue that this will better serve both 17-year-olds and the general public.

The purpose of the criminal justice system is a matter of interpretation—to some extent, it is about punishment, and to some extent about rehabilitation. The juvenile justice system’s purpose is not ambiguous at all. Its goals, as defined by the Texas Juvenile Justice Code (JJC), include “remov[ing]…the taint of criminality from children committing certain unlawful acts,” “provid[ing] treatment, training, and rehabilitation,” and “provid[ing] for the care, the protection, and the wholesome moral, mental, and physical development of children.” Tex. Fam. Code §§ 51.01(2)(B), (2)(C), (3).

The JJC currently defines a “child” as anyone who is at least 10 years old but younger than 17 and any 17-year-old who “engaged in delinquent conduct…as a result of acts committed before becoming 17 years of age.” Id. at § 51.02(2). A child may remain subject to the jurisdiction of a juvenile court after turning 17 if they are part of a proceeding that began before that birthday or one that is based on conduct that occurred earlier. Alleged criminal acts committed after their 17th birthday will be subject to the criminal justice system’s jurisdiction. Tex. Pen. Code § 8.07(b).

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The criminal justice system generates a vast amount of records, including case files, arrest reports, and jail records. An acquittal or dismissal of charges, unfortunately, does not end the impact of a case on a person’s life. A background search could reveal information that harms their chances at employment, even if they have no convictions. Most states allow people to remove information about dismissed cases from the public record, a process known as “expunction” or “expungement.” These processes predate the internet, though. Today, a background check might include a search of public records and a Google search. A recent court case considered whether an expunction requires private entities like news services to remove references to an arrest. The general rule has been and remains that expunction does not place restrictions on private individuals or businesses.

In Texas, expunction is available in many cases that resulted in an acquittal, convictions that have been overturned on appeal, cases in which the defendant received a pardon, cases in which the defendant has successfully completed a program of deferred prosecution and received a dismissal of charges, and cases in which charges were never filed. Tex. Code Crim. P. Art. 55.01. Juvenile records are typically sealed at some point after a case concludes, Tex. Fam. Code § 58.003, but expunction procedures are also available in many juvenile cases.

An individual must petition for an expunction in the same court that heard the criminal case, or in the same jurisdiction as the arrest if no charges were filed. Tex. Code Crim. P. Art. 55.02. If granted, the expunction order directs court clerks, law enforcement agencies, and other offices to remove and destroy records related to the case. Any use, distribution, or publication of expunged records is prohibited, and the person “may deny the occurrence of the arrest.” Tex. Code Crim. P. Art. 55.03.
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A bill that would remove criminal penalties for failure to attend school, commonly known as truancy, passed the Texas Senate in mid-April 2015 and now awaits action in the state House of Representatives. The juvenile criminal justice system deals with numerous acts that would not be considered illegal or unlawful for adults, such as truancy or possession of alcohol, and while this may not always seem like the case, the system is intended to focus on rehabilitation rather than punishment. Texas’ system has come under substantial criticism, as well as an investigation by the U.S. Department of Justice (DOJ), for its treatment of truancy as a criminal offense. The bill, SB 106, has substantial support, but opponents have claimed that it is not necessary because the resources it seeks to create are already available.

Under current Texas law, most children between the ages of six and 18 are required to attend school unless they are subject to an exemption. Tex. Educ. Code §§ 25.085, 25.086. If a child who is at least 12 years old misses 10 or more days in any six-month period during a single school year, or three or more days within a period of four weeks, the child has committed a Class C misdemeanor, punishable by a fine of up to $500. Tex. Educ. Code § 25.094, Tex Pen. Code § 12.23.

The offense of truancy may be prosecuted outside of the juvenile court system. A judge may order a child found guilty of truancy to attend school and other special programs, perform community service, and attend tutoring sessions. Tex. Code of Crim. P. Art. 45.054. The court may order the child’s parents or guardians to “attend a class for students at risk of dropping out of school.” Id. at Art. 45.054(a)(3). Failure to abide by a court’s orders may result in a contempt finding, which could include jail time. Tex. Educ. Code § 25.094(d), Tex. Code Crim. P. Art. 45.050.
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The federal government is poised to make a big cut to funding for state and local juvenile justice programs. That is bad news, given that the purpose of these programs is to help states comply with the Juvenile Justice and Delinquency Prevention Act of 1974. This Act was the first major federal legislation to shape state policy on juvenile justice. Its goals were to remove juveniles from adult facilities and to end the practice of sending both criminal and noncriminal minors to prison-like facilities for rehabilitation. Before the Act was enacted, many juvenile courts did not think twice of throwing minors into adult prisons for long periods of time without tailoring the sentence to the juvenile crime or giving the minor due process. That still happens far too often in Texas and elsewhere, and now it is about to get worse.

Federal aid for juvenile justice programs already had sunk by more than 50% to its lowest level in over a decade. The Coalition for Juvenile Justice, which represents state advisory committees in Washington, D.C., asked Congress to appropriate $80 million for “formula grants” to help states comply with mandates, $65 million for a Title V Delinquency Prevention Program, and $30 million for juvenile accountability block grants. The House appropriations committee responded by cutting the programs to $33 million, $65 million, and to nothing respectively. The elimination of juvenile accountability block grants could be especially damaging, since they are used by states and local governments to give juvenile justice officials a range of options for holding minors accountable that take into account their age and ability.

The more government-friendly Senate intends to provide a budget for these programs that is close to $300 million. But by the time the House and Senate agree on a budget (if they ever agree — or, if more typically, they reach a stalemate while the programs twist in the wind), the number is likely to be lower than the current $263 million budget.

Recently, a judge was sentenced to 28 years in federal prison for accepting a $1 million kickback from a builder of for-profit juvenile prisons. Although the judge, Mark Ciavarella, presided in Luverne County, Pennsylvania, this story is chilling for criminal defense attorneys across the country who represent juvenile crime suspects.

In return for the kickback, Judge Ciavarella reportedly made a habit of sentencing youths to time in the prisons that were being built. Children as young as 10 years old were sentenced, for “outrageous” crimes such as stealing a jar of nutmeg or posting a web page containing spoofs of an assistant principal. In one especially sad case, a 17-year old with no prior history of conviction was sentenced to several months in a private prison and wilderness camp for possessing drug paraphernalia. He never recovered from the experience and took his life at the age of 23.

If this is true (Judge Ciavarella denies it), it represents the gross abuse of a trusted position — in fact, this guy sounds like a character in a Dickens novel. This blog has already discussed the vulnerable position of juvenile defendants. Here in Texas, juveniles’ constitutional rights are repeatedly overlooked. Though juvenile defendants are supposed to receive notice of the charges they are facing, they frequently do not. They also have a Sixth Amendment right to competent representation, but too often, the kindest word you can use to describe it is “inadequate.” Too often, teenagers are treated like young adults — “Certified” as Adults, and given adult sentences and put in adult prisons under the misguided belief that they would never “learn their lesson” in a juvenile detention center. Things have gotten a bit better, with the state focusing a tiny bit more on rehabilitation than “lock ’em up” policies, but much of the neglect still needs to be addressed.

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