US Attorney should prosecute TYC abuse cases Hidalgo DA eschewed

The Texas Youth Commission sex abuse debacle last year left the battered agency languishing in conservatorship after the press revealed that the local DA failed to prosecute allegations that a West Texas State School supervisor sexually assaulted male prisoners under his charge. The Legislature reacted by creating new infrastructure to investigate abuses at TYC, but if local DAs and grand juries won't pursue charges, that doesn't help much. According to AP (June 28):

Grand juries in Hidalgo County have opted against indictments in several cases of alleged criminal abuse at Evins Regional Juvenile Center, two years after investigators uncovered systemic civil rights violations at the facility.

Of the eight cases of alleged staff-on-youth violence considered by grand jurors in the past year, none have resulted in criminal indictments, The (McAllen) Monitor reported in a story for its Sunday editions.

At the same time, the panels have green-lighted cases against nearly all the inmates accused of breaking the law, according to statistics provided by the Texas Youth Commission, the agency charged with overseeing Evins and the state's other youth prisons.

"We may have just reached a point where people think these teens aren't in prison because they sang too loud in the choir," TYC Inspector General Bruce Toney said. "But we have to remember they can be victims too." ...

Inmate riots and repeated allegations of abuse drew U.S. Department of Justice investigators to Evins in 2006.

Youths reported incidents in which guards bound them, threw them face-down into flower gardens, used their bodies as battering rams to open doors and hit them against concrete poles. The guards have said they did what was needed to protect themselves and other youths from harm.

But federal investigators saw it differently.

"Certain conditions at Evins violate the constitutional rights of the youth residents," their final report said. "In particular, we find that children confined (there) are not adequately protected from harm."

Since then, state legislators have overhauled the prison and its parent agency to address safety concerns. Lawmakers created the independent Office of the Inspector General to review youth reports and designated a special prosecution unit to try criminal cases stemming from them.

Houston Chronicle columnist Lisa Falkenberg in May suggested that grand jury members may be personally too close to facility employees, but my guess is the DA's office is the common thread. Typically if a prosecutor actually wants to get indictments, they don't go zero for eight!

Basically the law enforcement community in Hidalgo is taking care of its own, and as the original West Texas case shows that's how things work in many parts of the state. It's too politically dicey for local DAs to consistently prosecute police, deputies, prison guards, probation officers, or juvie authorities without facing backlash from interests who are core constituencies. Some DAs have the cojones to do the right thing in that environment, and clearly some do not.

In TYC's case, the Lege actually created a special prosecutor but the law forces her to defer to local DA's decisions about who will try the case. That's clearly creating problems and the law should be changed next year to let the special prosecutor present the cases personally to a grand jury.

I've long believed the state needed a special prosecutor's office to avoid even the appearance of conflict when making decisions about charging folks in law enforcement, but this example shows the idea won't work if it's a voluntary arrangement. In 2003, then state-representative and current Democratic US Senate candidate Rick Noriega filed HB 414 which would have required appointment of a special prosecutor when any peace officer was prosecuted. Noriega's bill would have had local judges appoint special prosecutors when peace officers in their jurisdiction were accused:

The attorney for the state or an attorney employed by the office of the attorney for the state may not represent the state in the prosecution of a felony or Class A misdemeanor charge filed against a peace officer serving an area also served by the attorney and the office of the attorney. After a disqualification required by this subsection, a court who appoints an attorney pro tem under Article 2.07 may not appoint a person who has prosecuted cases before the court in the five years preceding the appointment.

If it had passed, the bill might actually have created a demand for "prosecutors for hire"! But in retrospect given the volume of such cases, it might be better to create an independent special prosecutor, perhaps a division in the Attorney General's office. That possibility remains far off in the future, though, and it's certain expanding the idea beyond TYC would be bitterly opposed by institutional players at the Lege like police unions and DAs, as it was in 2003.

A more immediate solution would be for the TYC Inspector General to take Hidalgo County cases straight to the US Attorney and ask him to press charges. The Evins Unit is already the subject of an Agreed Order with the US Justice Department over allegations of longstanding civil rights abuses. If the Hidalgo DA won't aggressively pursue legitimate allegations of staff on youth abuse, the Inspector General should do everything possible to move the action directly into federal court.