Wednesday, September 26, 2007

All in the Family: TYC's Yo-Yo policy on 19-20 year olds changes again

I'd hate to be the parent of one of the 19-20 year olds currently in legal limbo incarcerated in TYC. Every few days their status seems to change. According to the Austin Statesman's Mike Ward ("Youth commission changes course on older offenders," 9/25),

On Tuesday, Dimitria Pope, the agency's acting executive director, announced that 79 of 159 older offenders will be kept in agency lockups, and another 40 will remain on Youth Commission parole.

Only 24 will be transferred to adult parole, and eight are being referred to judges for re-sentencing to an adult prison, she said. Another eight have been released because they turned 21.

It's hard to understand how we wound up here. The Texas Lege in SB 103 told TYC clear as day they couldn't keep kids past their 19th birthday. Here's the verbatim language:
(e) Except as provided by Subsection [(f) or] (g), the commission shall discharge from its custody a person not already discharged on the person's 19th [21st] birthday.
The only exception, subsection g, says that:
The commission shall transfer a person who has been sentenced under a determinate sentence to ... [the] Texas Department of Criminal Justice on the person's 19th [21st] birthday, if the person has not already been discharged or transferred, to serve the remainder of the person's sentence on parole.
So how do they get to keep half the offenders in TYC? Where is the legal authority for that under the statute? Until yesterday, TYC's public stance was that they had no authority to keep these offenders any longer. Reported Ward, "By late August, Pope was telling a legislative committee that the agency had a plan to get all of the older offenders out of Youth Commission custody — and that most would go to into the adult system."

Since then, TYC says the Attorney General signed off on a new interpretation of the law, one that I don't think can be justified by the plain language of the statute. The agency now says SB 103 only applies to youth whose cases were adjudicated after the legislation took effect. But that's not what the law says. SB 103 changed criteria for release decisions for all youth, including those already incarcerated. Nothing in the language implies that it's possible to grandfather these cases.

Pope is relying for this view on a document that's not actually from the Texas Attorney General per se, but on TYC letterhead signed by TYC General Counsel Steve Foster and Assistant Attorney General Sharon Pruitt. Here's the document, which a reader forwarded to me last week. (It was actually written before Ms. Pope's last report to the Lege.) The key language - the part that I think intentionally misinterprets (or at least re-interprets) the law to get TYC out of a sticky problem, says:
The Texas Legislature, through SB 103 as passed and signed into law during the 80th Legislative session, made the decision to reduce for the future the maximum age of offenders from 21 to 19. Given the general prospective application of SB 103, TYC continues to have jurisdiction over its current population of 19 to 21-year old offenders: in other words, those offenders in this age group committed to TYC prior to the effective date of SB 103.
But SB 103 was never intended to be "prospective." If that were the case, many of the policies wouldn't apply to older cases when they were clearly intended to do so. For example, the new Office of Inspector General may investigate cases from before the office was created - there are no distinctions anywhere in the bill to say its provisions only apply to youth convicted in the future.

I wish someone would ask for an actual, formal AG opinion on this topic, or that some lawyer would challenge the decision in court on behalf of those still incarcerated - I simply don't think it's credible after all this time to say that's what the law means. No one has ever publicly suggested such an interpretation before now.

Having told the Lege straight up less than a month ago she would do the precise opposite of the new announced policy, Ms. Pope yesterday said lawmakers were all on board. That was news to House Corrections Committee Chairman Jerry Madden, though, reported Ward:

Pope said Tuesday that lawmakers had been briefed on the agency's new decision.

But House Corrections Committee Chairman Jerry Madden, an author of the law and co-chairman of a special legislative committee overseeing Youth Commission reforms, disputed that.

"I have not been briefed by anyone ... and I can tell you that our legislative intent was to get the 19- and 20-year-olds out of TYC facilities," Madden said. "I have no idea how they've come up with this. I continue to be surprised and amazed by some decisions out there."

The crux of the issue over 19-20 year olds with determinate sentences boils down to a family dispute, oddly enough: The new law says TYC "shall transfer" these offenders to adult parole. But TYC conservator Ed Owens' wife Rissie, who chairs the state Board of Pardons and Parole, refused to allow parole for most of these offenders. I don't believe that was within her legal power, but I also know that in a marriage it can be dangerous to challenge the Missus, so Owens and Pope decided to re-interpret the law rather than force the parole board chair to follow it.

Honestly, it's time for the Governor to step up and provide some adult supervision for TYC (and for that matter the parole board - he should insist the chair he appointed respect the law). With Ed Owens on his way out, perhaps the Governor should take this opportunity to reshuffle things at TYC and appoint new management to run the agency - preferably real juvenile justice experts, or at least somebody who could be trusted to follow the law.

RELATED:

38 comments:

Anonymous said...

I can assure you from first hand experience that there ARE lawyers looking into this.

Anonymous said...

All of this is still misleading. Ms. Pope only addressed those sentenced offenders that are 19 - 21, supposedly about 150 youth. If you apply this new standard fairly that means there are many other sentenced offenders who were committed prior to the law changing that should also be allowed to stay in TYC until they are 21. However, it appears that Ms. Pope is only talking about the current youth 19 and older. What a mess this will be in the future!

Anonymous said...

Damn dude, are still not going to talk about the elephant in the room? Officer Canfield.

Gritsforbreakfast said...

I just put something up about Ms. Canfield that I hope you'll find sufficient.

The "elephant," though, is only in your mind. While I'm sorry for Officer Canfield and her family - what else would you have me say? The news coverage didn't come out until today (I don't know where you think I was supposed to have learned about this with The Back Gate down), and I have no information other than what's in the paper, which blames one of her fellow COs for violating policy.

I seldom write about such incidents immediately when they happen because initial media reports are often wrong, and I honestly don't know the facts or have anything to add. I also don't typically blog when cops shoot civilians, when people die in custody, etc., unless a) some definitive, trustworthy report is available or b) I have information or analysis to add to the story. Neither is true in this case, and I don't want to disrespect the deceased by blathering on about something I don't know about.

Those are my editorial decisions to make. My blog, my rules. If you feel so strongly that I'm not doing a good enough job here, please start your own blog and show us how it's done. It's a big ol' blogosphere out there and you're welcome to your piece of it.

Anonymous said...

Did Madden do a flip? Wasn't he the one who raise so much hell when TYC started the release process? You know, the one that cost Marie Murdoch her job for trying to do the right thing?

When are people going to wake up and realize that while there were definitely problems with some in the old TYC administration, and there are definitely problems with the current administration - the real problem is with our political leadership. That is where the real housecleaning needs to be!

Anonymous said...

TYC is becoming more of a circus everyday. Glad I got out when I could.

Anonymous said...

From TYC's State of the Agency web-page, last updated August 29, 2007, according to the bottom of the page:
Question: Why are 19 and 20 year-old sentenced offenders still incarcerated now that SB 103 has taken effect requiring TYC to release youth before they turn 19?
Answer: While Senate Bill 103 was enacted with the intent to reduce the age of the TYC population to those offenders under the age of 19 years, it was not made retroactive. TYC continues to serve youth committed to TYC prior to the effective date of SB 103. TYC and representatives from the Attorney General’s Office are reviewing these cases to make determinations whether the youth will be transferred to parole or whether the agency will make recommendations to the court requesting these youth be placed in adult prison. Since these youth, under Texas juvenile laws, have legally not been convicted of crimes, rather they have been adjudicated delinquent of offenses, any request made by TYC to have a youth transferred to prison must go before a judge for a decision in order to preserve the youth’s due process rights.

Per Gritsforbreakfast, today:
"Until yesterday, TYC's public stance was that they had no authority to keep these offenders any longer. Reported Ward, "By late August, Pope was telling a legislative committee that the agency had a plan to get all of the older offenders out of Youth Commission custody — and that most would go to into the adult system."

Last I checked, the Internet is public. Also, last I checked, one single newspaper out of many, many news sources and informational resources, is not the first, last, or final word on TYC operations. Maybe Grits could attempt more independent investigation and verification instead of continuing its unquestioning regurgitation?

Gritsforbreakfast said...

You're right, 3:32, that was public so my statement you quoted was in error. Perhaps the reason I missed it was because on the SAME DAY the FAQ was finally posted, many weeks after it was promised, TYC's ED said the EXACT OPPOSITE in sworn testimony to the joint legislative committee, which I spent all day listening to.

As Mike Ward reported, Pope's position articulated Aug. 29 at the joint hearing was that "that the agency had a plan to get all of the older offenders out of Youth Commission custody." That was also consistent with TYC's previous pronouncements (though they kept tripping over their own feet on timing and logistics).

I guess you think I should just have assumed Pope lied to the legislative committee that day. Maybe she did, but I did not and do not have evidence to prove it. I do know she's flip flopped multiple times on this very decision, and Howard Hickman believes the agency is not following the law.

The so-called AG interpretation (which was not made public till a reader sent it to me), contradicts the stance Pope took at the Aug. 29 hearing. She did not reveal her new line of reasoning in her public comments that day, and in fact told the committee the opposite, though she already had the Foster memo.

Finally, I don't know whose opinions you think I'm "regurgitating" - the source for TYC's stated position I used were sworn statements by the ED of the agency, not some TYC critic. The fact that she was telling legislators one thing in her testimony and putting different information on the website really isn't my fault, is it?

Anonymous said...

I read the letter/memo from the AG's office and TYC's general counsel. It doesn't look like an official AG's opinion to me. It just looks like something that was thrown to give Ms. Pope someone to blame, ie. the Attorney General said it was OK. Did the real Attorney General of Texas even see this letter/memo before it went out? Does any know what a true AG's opinion looks like?

Gritsforbreakfast said...

Absolutely I know what a "true" AG opinion looks like - they go through a formal process and must be signed by the AG himself. This isn't an AG opinion, it's a memo on Steve Foster's letterhead that has as much force of law as this blog comment.

Bottom line, though, they get to do what they want until a court or the Governor says they can't, or unless someone (Mr. Ombudsman?!?) formally requests a real AG opinion.

Anonymous said...

An AG Opinion says on it that it is an AG Opinion and has a designated AG Opinion number.

The Foster/Pruitt letter is not a legal opinion but a procedural directive which restates basic TYC release policy without addressing the legality of the 19/20 year old issue.

I believe that the official TYC policy can easily be summarized as "DEPENDS" Depends who you ask; Depends on when you ask; Depends on why you ask; Depends on today's TYC agenda, etc.

Howard A. Hickman

Anonymous said...

Good summary, Howard! Old Salty

Anonymous said...

The lege better wake up before the daPope single handedly hands them their political walking papers. This TYC crisis is spiraling downward fast. It obvious that the right hand does not know what the left hand is doing and never the two shall meet! But lies, hems & haws and blame are abundant. In the meantime, the youth and employees continue to suffer, while the current leadership takes their $$$$$ to the bank every month!! Only in TEXAS!

Anonymous said...

The different reactions from Sens MAdden and Whitmire are kind of curious.

Really, it's the first time they've clearly disagreed about anything TYC related since the spring.

Anonymous said...

If there were 150 youth who were 19-20 years old on August 25, and 156 youth who were 19-20 years old on September 18, how many are there now? And does anyone really believe that with over 2500 kids in the agency, only 6 have turned 19-20 in the past month?

Anonymous said...

Star-Telegram "I'm not going to say that [the abuse has] been totally eradicated," said Dimitria Pope, the commission's acting executive director. "I can say the staff-on-youth abuses have been significantly, if not 98 percent [eliminated]." Somebody needs to do an Open Records Request on the actual numbers.

Anonymous said...

9:43 - this group of 19-20 year olds is only the determinate sentenced offenders, which is a very small percentage of the total number of youth in TYC. It is not all TYC youth. Indeterminate sentenced youth are the majority and they can't be transferred to the adult system at all, so they are not being included in these numbers.

Also, Grits, there are 2 letters. One is from Eric Nichols at the AG's office and the other is the one Foster and Pruitt drafted. Neither is an "AG opinion"

nurit said...

now I'm really confused...what about the newly adopted (8/31/07) administrative rule change on sentenced offender disposition that says they will be released or transferred before their 19th birthday? (See TYC web site.)

Gritsforbreakfast said...

Can you give me a URL for the 8/31 memo, Nurit? I can't find it.

Anonymous said...

Try this link:

http://austin.tyc.state.tx.us/cfinternet/RuleChanges/index.cfm

Anonymous said...

Well, that link didnt come out like it should. Try this:

Go to TYC website and click on Reforming TYC. Then click on In the Works and then on Proposed TYC rule changes. That is where you will see the 8/31 mentioned change.

Anonymous said...

The 8/31 admin memo just follows the Foster/Pruitt letter. It does not change the applicability of SB 103 or change the law to authorize the holding of 19/20 year old sentenced offenders.

The Nichols letter is a semi-literate justification but again it is not an official AG opinion and does not have any binding legal authority. It would be just like OJ relying on a letter from his lawyer saying OJ could commit armed robbery. Neither would be worth the paper on which they are printed when it comes to a judge making a decision on the overall issue.

Howard A. Hickman

Anonymous said...

How can someone appear before a legislative committee and lie without there being any ramificaiton? DP said that all the Youth Rights Specialist positions have been filled, and the new grievance system was in place. News flash, there are no YRS at the facilities, and in an emergency to cover her butt TYC is renaming Youth Care Investigators at the facilities as YRS so that they will be in place. The positions were never posted. That is going to make all the previous abuse allegations to sit around even longer becuase there won't be any Youth Care Investigators left to investigate, and we know that the new IG department is not even going to cover adminstrative investigations against staff. As far as Pope saying that the abuse rate of staff on youth assualts have dropped by 98%. Does she make this up as she goes? She lied to the committee, and she is lying about how the agency is doing. It is really ironic that the new adminstration published the new ethics for the agency, and the first one is about honesty. Ms. Pope needs to review the definition of Integry and honesty in the dictionary and actually follow it.....

Anonymous said...

Mart II is going to explode any day now. The staff have shut down and I don't blame them. They are beyond burned out. Simmons is working fast and hard. He is very visible and a great man. But it is too little too late. The population is way over the capacity for the structure. Classrooms are running 16-18.The 1/12 is a joke both in the dorm and in school. Officers for the most part refuse to confront any behavior. Why should they? They are running scared of losing jobs. TYC is a whole lot better, right?

Anonymous said...

I feel for all the 19 and 20 year olds that have done everything we have asked them to do (including both good behavior and progress in treatment) and are past their minimum period of confinement. Some of their release packets have been sitting in Austin for months (even before SB103 was made law). How can we continue to hold them legally? Why haven't they been released to TDCJ parole?

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nurit said...

http://austin.tyc.state.tx.us/cfinternet/RuleChanges/index.cfm

Anonymous said...

I think this
link
will get you to the page that Nurit is trying to paste.

Anonymous said...

Howard: Can "they" make a case for ex post facto? I.e., after being sentenced under the law, cannot now be held accountable to a new law? Seems this might impact students, indeterminate or determinate, who have successfully met the criteria under which they were assigned to TYC from being sent to prison. Question 2, can I, as citizen/taxpayer, file a class action suit against Rissie for refusing to accept on parole students who meet the criteria, thereby costing me extra money to get the job done right.

Anonymous said...

7:56,

Ex Post Facto is probably not the legal concept you are after. The law does not allow TYC to keep the 19/20 year old determinate sentenced offenders. Keeping those youth would be ultra vires (outside the law).

TDCJ does not have the legal authority to refuse to accept a TYC determinate sentenced offender transfer. TDCJ has no discretion in that matter. They can scream and yell but they can not prevent it if TYC wants to follow through on the release.

As to filing suit, only a party with standing i.e. the youth involved or youth as a class could file suit.

Howard A. Hickman

Anonymous said...

I guess you folks would be perfectly happy sending these young boys over to TDC where they would face a much worse situation as long as you could say you were right and TYC was wrong. You have lost sight of our youth in your quest to slam the agency.

Anonymous said...

12:18, my quest is to save the youth from the claws of the current leadership's lack of juvenile justice experience and their inability to take ownership the countless mistakes they've made since their takeover. The agency was slammed by corrupt administrators who lost sight of our mission and youth long before I decided to exercise my freedom of speech on this blog. Our youth are already facing a TDC situation while at TYC, what rock have you been under??

Gritsforbreakfast said...

@12:18 - why would they be in a worse situation on TDC parole, which is what the law says should happen to them, than incarcerated in TYC?

Anonymous said...

In many cases, since they do not have a home to go to, they will be forced into TDCJ half-way houses with hardened criminals. Not a great situation.

Anonymous said...

Why should the legislature be shocked at what the current leadership of TYC is doing? They are doing exactly what the legislative leaders want them to do. I guarantee you, they are getting calls daily, perhaps multiple times daily, from legislative offices - that is why all the flip-flops. The conservator has been a non-player ever since the dressing-down he got from Whitmire which led to the firings of all the juvenile justice experts from Central Office. Everyone in Central Office is in reactive mode. In the current atmosphere, even if they were the best administrators in the world, I doubt anything could be done. People in North Harris County need to know what a fraud and bully their Senator is. He has made a career out of "reforming" agencies, and screwing them up far further than they ever were in the first place. The Rangers are saying they think DPS is next on his list, while HHS people think they may be next. I wish the MSM from Houston would pick up on the disparaging remarks he made about his own constituency to Rep Madden during the August hearings. His ego is so big, he didn't even think to turn off his mike.

Gritsforbreakfast said...

@6:33 - a lot of things TYC has done weren't the best decisions. The question here is whether they followed the law. On its face it doesn't seem that way, but at this point it looks like it won't be decided unless some private attorney or advocacy group steps in to sue. Like Howard, I don't see anybody in authority stepping up to the plate to request a formal AG opinion, sadly ... embarrassingly.

Anonymous said...

Scott,
Marie Murdoch tried to follow the law and Rissie Owens and Rep Madden raised hell. Result - Marie is gone, the releases were stopped. Now Rep Madden has flipped his position. You are right, the TYC is not following the law. What I don't understand is why you are going so easy on our legislators? They have forced a bloodletting on TYC and are continuing to make demands that violate the very law that they wrote. THEY are the ones who really need to be held accountable. A great big huge lawsuit may just wake the voters up. Old Salty

Anonymous said...

Here's the thing, Grits. What happens if the AG opinion does not read positively for youth? The AG opinion may be as much of a political farce as the rest of this, and play out in a way that lands more youth in TDCJ.

Seems to me that letting the issue play out in local courts is a much more interesting option than immediately going to the AG for a game-ending opinon. Of course, I'm not a lawyer, so please correct me if I'm missing something here.