For Their Own Good
George awakes scared and confused. He's had the dream again, the one where he is living back at home, where he can wander into the kitchen at any hour to down a glass of milk or fix himself a bowl of his favorite cereal.
He'd had dreams like this before, and every time he wakes up, it takes him only an instant to realize the lie. All he needs to do is feel the jailhouse mattress underneath his body and open his eyes to see the light shining in the corner of his cell, the light that taunts him 24 hours a day and that he can never snuff out.
For the past six months, George has been living alone in a small cell on the second floor of the Harris County jail awaiting trial on charges of aggravated robbery with a deadly weapon. Prosecutors say he was one of a group of boys who robbed and assaulted a married couple at gunpoint.
George (not his real name) has been held in isolation 23 hours a day even though he has not been convicted of a crime.
He is 15 years old.
He desperately misses his mom.
In most cases, teens ages 14 to 16 would be held before trial in the county's juvenile facility, but George has been certified to stand trial as an adult, which means he is housed across the street at the "Big Jail."
Authorities say that to keep George and other juveniles like him safe from older, hardened criminals in the general population, George should spend his days in near solitary confinement.
But this decision to protect juveniles may actually make life much worse for them, critics say.
Liz Ryan, Director of Youth Justice, an advocacy group in Washington, D.C., says data shows that juveniles are 36 times more likely to commit suicide in an adult jail than a juvenile detention facility and 19 times more likely to kill themselves in isolation than in general population.
George is one of 83 teens certified as adults in Harris County in 2008. For the past 12 years, an average of 89 juveniles have been certified here every year, the majority charged with violent and heinous crimes with expensive bonds that their families cannot pay. They have not been convicted of anything, yet their treatment — the isolation — is akin to the severe, short-term punishment of adult prisoners who have already been condemned. And there they sit, for months, even years, before ever going to trial.
In some cases, there never is a trial.
Take Bobby, for instance, who would only be interviewed under the condition of anonymity. He was arrested when he was 16 and charged with aggravated robbery. He spent about five months in the juvenile detention center before being certified as an adult and moved to the county jail. After more than a year, the prosecutor dropped the case, and he was set free.
He describes his time in isolation as mental agony.
"It made me want to act crazy," he says, "but I knew I wasn't a crazy person. I know that in their eyes we're adults and criminals, but at the same time, we're very young and we haven't been convicted. We're just sitting there. You get crazy thoughts, like you want to hurt somebody or hurt yourself."
The pretrial confinement of these teens is not the only aspect of certification that's drawing fire. Critics also say the entire process is nothing more than a rubber stamp. And they object to the rules that say an appeal of the certification itself is only allowed after the criminal trial is over.
From 1999 through 2008, Harris County juvenile judges certified 745 youths. In that same time, they only denied 48 certifications, meaning they transferred more than 93 percent of the cases to adult court. In 2005 and 2004, judges did not deny a single one. According to the Austin-based advocacy group Texas Appleseed, Harris County certified more juveniles from 2006 to 2008 than the next five largest counties in Texas.
The treatment of these kids has slipped under the radar. Even the judges who certify them as adults and many county officials seem unaware that this legal determination sends the teens to isolation.
In Texas, any teen 14 or older charged with a violent felony or aggravated drug offense can be certified to stand trial as an adult. There is, however, nothing in the Texas Family Code requiring that a certified juvenile must be kept in the county jail while waiting to go to trial.
It's just something that's done in Harris County. It's
"It's an awful thing, solitary," once wrote Senator John McCain, who spent more than two years in isolation as a P.O.W. in Vietnam. "It crushes your spirit and weakens your resistance more effectively than any other form of mistreatment."
Once a child is certified, says Ellen Marrus of the University of Houston Law Center, "we follow the adult court proceeding, which means being placed in juvenile detention is not an option. But there's nothing in the statutes that says we have to do that. The child could still remain in the juvenile facility where they could get the specialized treatment and education they need."
Beginning about four years ago, Harris County decided not only to keep all 14-to 16-year-old inmates in the same unit, apart from the adults, but also to segregate them from each other, to keep them from fighting by placing each one in his own cell 23 hours a day. They're allowed out for schooling, recreation, to see visitors and to go to court.
Marrus says many of the reasons why certified juveniles are held in the adult jail have to do with convenience. It makes it easier on the jail staff to take them to court hearings, and when the teen turns 17, he is moved into a unit with older inmates, "so it's easier for them to just keep the child there for the whole time," she says.
Susan Card, spokeswoman for the Harris County Sheriff's Office, which runs the jail, says simply that when a juvenile is certified, that legally makes him an adult, and therefore he is placed in the county jail.
It might make sense, then, that there would be laws or regulations protecting the kids. Not so, says Brandon Wood of the Texas Commission on Jail Standards. The agency's only recommendation is that jails with the ability to should separate the children from the adults.
Human Rights Watch has said that prolonged solitary confinement should be banned across the globe, calling it a "cruel and inhuman treatment."
Among psychologists, there are currently two basic schools of thought on the subject. The first, championed by Dr. Craig Haney of the University of California at Santa Cruz, is essentially that no one should ever be forced to suffer long-term isolation. Dr. Joel Dvoskin of the University of Arizona, who ran the forensic and correctional mental health system for the state of New York for ten years, advocates a more tempered notion. He believes that isolation doesn't necessarily cause mental illness, but it can. And in children, the effects are amplified.
"I'm kind of a hard-ass and believe that there are some people who deserve prison," he says, "but I think even the most even-handed people have said ... [isolation] is not socially normal in any sense of the word. We know that the prevalence of mental illness or emotional problems among juvenile offenders is very high, and it's certainly true that [isolation] can either cause or exacerbate mental illness in some people, so when you consider the risk factors, it's fair to say that it's at least as high and probably higher in minors."
Certain considerations affect an inmate's ability to handle isolation, says Dvoskin, including whether the offender thinks he is being unfairly punished and whether he has any control over when he is released.
"If you are put in [isolation] simply because you are a minor," he
says, "it's going to seem less fair and you're going to feel like you
have no control because the only way to no longer be a minor is to kill
yourself. You're stuck, and there's nothing you can do about it but
wait for time to slowly creep by."
Sitting in the visitation area behind a thick pane of glass and wearing his county-issued orange shirt, pants and socks, George keeps his head down; he speaks softly and in short sentences.
"Doing the time is hard," says the scrawny teen, who could easily pass for 12. "I'm so scared and lonely. When I let myself think about it, I start to cry."
Police arrested George when he was 14. He turned 15 in jail.
When asked about his typical day, George says he tries not to think about suicide. Instead he spends hours watching the gnats buzz around his cell. He has a radio and a few books, but mostly George says he just sits on his bunk. Sometimes he'll move over to the metal chair — tucked underneath a metal desk, which is next to his toilet and sink — to write a letter to his mother. When she visits him, the glass partition prevents them from hugging or touching. For exercise, he paces or does sit-ups and push-ups. That tires him out and relaxes his muscles, allowing him to fall asleep. Some days, he says, it feels like the only reason to get up is to figure out a way to get back to sleep again.
Through a small window on his cell door, George can only see a wall. Below the window is a slot through which guards slide his meal tray three times a day. But George refuses to eat the "nastiness," choosing instead to live on a less than nutritious diet of prepackaged chips, candy and soda that he buys from the commissary using the money his mother deposits in his jail account.
When the food slot is open, George can hear the other kids in the unit, who like him have been certified as adults and are kept in segregation. He hears them scream and act out, beating on their doors, only to have the noise silenced when the guards reclaim the uneaten food and slam the slot shut.
George is allowed out of his cell once a day for an hour. He says he uses the time to shower, call home or socialize with fellow inmates in a common room. As required by law, he gets an education. George says he goes to class twice a week for an hour each time, though jail officials say kids his age go for five hours every Tuesday and Thursday. George says he does his homework in his cell, though he doesn't have much this week because he says all he did in class was watch the movie The Outsiders, starring Patrick Swayze and Rob Lowe. He longingly remembers the time he spent in the juvenile detention center before being transferred, where he went to school all day and was allowed out of his cell far more often.
Recreation time at the adult jail, says George, is a joke. Twice a week he gets an hour and a half to exercise and play, but it's always indoors. There are basketballs, but no hoop. Volleyballs, but no net. Not that it would matter. George says he's often kept in shackles, so all he and his fellow teens can do is shoot the shit. Then it's back into his cell.
Harris County is by no means alone when it comes to housing certified teens in isolation. Ryan says that 40 states permit or require that juveniles certified as adults be held before trial in an adult jail, and that on any given day 7,500 youths are incarcerated in adult jails across the country.
In one example, two youths placed in isolation tried to kill themselves seven years ago in the Los Angeles County jail. The incidents made headlines in the Los Angeles Times and public outcry began to grow. Finally, the L.A. County Sheriff decided to contract for beds in a nearby state juvenile facility. There, the youths receive all-day schooling five days a week, can socialize with each other and receive counseling.
"Solitary confinement is really damaging," says Sue Burrell, a lawyer with the Youth Law Center in San Francisco, an advocacy group involved in the L.A. County case, "but for young people it's much worse. As we all know, a child's brain is still developing, they are still developing emotionally and they have a much different perception of time. Five minutes can feel like five hours. So being forced to sit in a cell away from their family, their friends, with sensory deprivation, is incredibly damaging to their mental health. Our experience has been they either get really depressed or they get really angry. And sometimes they flip-flop between the two."
Bobby says that's exactly what happened to him.
"Being with people helps you keep your mind off a lot of different things," he says. "If you're just sitting there, you go crazy. And yes, you get out of your cell for 30 or 60 minutes a day, but when you do you'll probably do something you don't want to do. You want to cause a problem."
Today, says Burrell, the majority of certified youths held pretrial in California are kept in juvenile facilities.
Juvenile justice advocates in Texas are aware that certified youths are held pretrial in isolation inside county jails throughout the state, but so far have done little to try to stop it.
Will Harrell, Ombudsman for the Texas Youth Commission, says he is "deeply concerned" about the practice, but that he has no jurisdiction over the adult system, therefore his hands are tied. Isela Gutierrez of the Juvenile Justice Initiative in Austin says she doesn't have a good answer as to why this issue has slipped under the radar.
"It's a good question," she says. "The kids being certified are
primarily kids of color so I think that could be a reason why people
are not paying attention. Maybe there's a willingness to accept that
these are really hard-core criminals who are beyond rehabilitation. The
truth is, juvenile justice was off everyone's radar for a really long
time, but now more attention is being paid to what we're doing with our
kids and we're asking, is it working?"
Christene Wood couldn't believe her own eyes. She'd been a civil lawyer for several years, but sitting there in Harris County juvenile judge Pat Shelton's courtroom during a certification hearing was like nothing she'd ever experienced.
"Shelton was surfing the Internet and never made eye contact with the boy," she says. "He covered his mouth and laughed during my closing argument. It was the most shocking and appalling proceeding I've ever seen as a lawyer in my career."
Wood was representing Christian — whose name has been changed because of his age and for fear of retribution by jail staff — the 16-year-old friend of Wood's daughter. He is currently awaiting trial in the Harris County jail, charged with murder. According to court records, eyewitnesses stated that Christian was being assaulted in a car during a marijuana buy when a gun went off, killing another boy. A third youth admitted to being the shooter and gunshot residue was found on his hands, but he later recanted. When police interviewed Christian, he admitted to the shooting, though his lawyers claim gunshot residue tests on him were negative and he was never Mirandized.
The factual allegations of the criminal case, however, are not the only elements a judge must consider when deciding whether to certify a juvenile and transfer him to adult court. The Texas Family Code requires that a judge must also weigh the sophistication and maturity of the child, the previous history of the child, the protection of the public and the likelihood of rehabilitation.
During Christian's hearing, the prosecutor called one witness: a detective who recounted the alleged facts unearthed during the investigation. The assistant district attorney never presented evidence relating to the other criteria, according to the transcript of the proceeding.
On the other hand, Christian's defense team did. Christian's juvenile probation officer testified that Christian had neither attendance nor behavioral issues at school, and juvenile corrections officer Ulysses Galloway told the court that Christian was "one of the best kids I have seen come through as far as his intelligence and obedience and the way he carries himself in the facility." When asked if he believed Christian would be amenable to treatment, Galloway said, "Yes, I would."
That sentiment was echoed by forensic psychologist Dr. Seth Silverman, whose report to the court stated that Christian might be harmed by being transferred to the adult jail due to the lack of rehabilitation there, and could benefit from a supportive juvenile setting. The prosecutor never presented evidence that treatment available in the juvenile system would be ineffective, according to court records.
In addition, it came out at the hearing that Christian had discovered only a year earlier that the reason his mother was serving time in prison was for suffocating Christian's baby sister and dumping her in a trash can when Christian was two years old.
Still, at the end of the hearing, Shelton certified Christian. The court order does not list any individualized reasons; it's simply a form order signed by the judge. Christian was then taken to the county jail and placed in segregation. It wasn't until months later that he was indicted.
Lawyers from the prestigious international law firm Jones Day, which has offices in Houston, are currently working on Christian's case pro bono. They have filed a petition for writ of mandamus seeking relief from the state's First Court of Appeals to essentially reverse the certification decision and have Christian placed in juvenile detention.
Jones Day attorney Jack Carnegie takes issue with several aspects of the certification process. For starters, he believes that judges should be forced to include individualized findings as to why juveniles are being certified, as opposed to simply signing a generic form.
"The form orders make the same findings in every case," he says, "and that results in these cases turning solely on the severity of the crime, and there's a real question about whether those other factors that the Legislature says the court is supposed to consider are being properly considered."
Or as Marrus of the University of Houston puts it, "What judges tend to do is rubber-stamp...rather than consider all of the information and the individualized nature of the child's case, which is what the juvenile court is supposed to do."
Carnegie and Marrus are not alone in their suspicions and concerns.
Criminal defense attorney Vivian King, who has represented a teen during a certification hearing, says she thinks the process is "a joke. The judges don't listen to the facts and they just certify the kids. There's no meaningful consideration of the evidence, the age; I didn't see any of that."
Dena Fisher was a juvenile probation officer for 15 years before becoming a prosecutor in the Harris County D.A.'s office. She says just thinking about the certification hearings makes her "squirm."
"I think that certification is a very big decision made with usually only one side of the story, the officer's testimony," she says. "And it's supposed to be based on the best interest of society and whether the kid can be rehabilitated. It is usually a very quick decision on a very important matter."
This, however, is not the routine in every county, says Sean McAlister, a former Harris County juvenile prosecutor.
"In Fort Bend County," he says, "it's a much more formal and involved process. You see, Harris County has always sort of read between the lines...so they dismiss with a lot of the formalities. And even though technically that's okay, you have other counties like Fort Bend that actually go through the process of calling all their witnesses, almost like a trial."
Three judges currently preside over certification hearings in Harris County: Shelton, who has been on the bench since 1994; Judge John Phillips, who was elected in 2002; and Judge Michael Schneider, who started the job in 2006. Nearly every year, Shelton has certified the most juveniles, almost double Schneider's number. In 2007, Shelton approved 40 versus Schneider's 15. Phillips's numbers fall between the two.
Neither Shelton nor Phillips returned numerous requests to address the allegations. Schneider, however, responded.
"I can tell you that in my court," he says, "we follow the criteria in the Family Code in every single case. Not only do we look at the seriousness of the case, but also whether the juvenile system has something to offer as opposed to the adult system." As to why the percentage of certifications is so high, he says, "I don't know."
Schneider also says he had no idea that certified juveniles were kept in 23-hour isolation when they were transferred into the county jail.
"It's something I've never considered because it's never been presented into evidence," he says. "This is the first time I've heard of it."
In Texas, it is up to prosecutors to choose which youths they want certified and to request certification hearings.
"We try to send the worst of the worst over to adult court," says Juvenile Division Chief Bill Moore, "the people we really want to get out of society."
Moore says he believes his attorneys do try to address all the factors as required by law during a certification hearing and that it is not a rubber-stamp proceeding.
"I think they get a fair shake in court," says Moore. "The percentage [of certifications] does seem high, but if it's true, I guess it means we're doing a good job picking them."
The fact that the youths are held in isolation does not enter the minds of prosecutors when deciding whether to seek certification, says Moore.
"Would I love it if the state and county had the money and resources to really take care of these kids and really try to get them so they can come back into society?" he says. "Heck yes. But we seek to certify the ones we get a sense from the juvenile probation people are beyond rehabilitation. Are we right all the time? Who knows, but as prosecutors we really have to be concerned with protecting people from these kids getting back out and committing another robbery or murder."
Using Christian's hearing as an example, Moore's rationale appears flawed. Christian's juvenile probation officer testified that Christian was in fact responsive to rehabilitation and Moore's language assumes that a child is guilty. By placing Christian and others in the jail and subsequently in isolation to await trial, argues John Vernon, an attorney with Appleseed, "the judge has essentially convicted and punished" them, "potentially causing irreparable harm."
Also at issue in Christian's court petition is the fact that after a child is certified, he cannot appeal the decision until the criminal trial is over. According to Carnegie, this means "you may have a child, who is wrongfully certified, end up in adult prison for a long time awaiting trial and they can't appeal the certification for months or even years."
Harris County attorneys responded, arguing simply that a right to
appeal exists; the fact that it might take years is irrelevant.
When it comes to keeping teens locked up in isolation, jail administrators don't like it any better than the kids themselves.
"It's a Catch-22," says Liz Ryan of Youth Justice. "They don't want the kid in isolation and they don't want the kid in general population. They know it's not safe either way."
Dennis McKnight used to run the adult jail in Bexar County, where he felt forced to keep certified juveniles in their own cells alone 23 hours a day. Not that he really wanted to.
"If I had my absolute druthers," he says, "they'd be housed in a juvenile facility or a special facility just for them. It creates tremendous burdens on the local detention centers. Lots of kids have mental or emotional issues and it adds a layer of stuff we have to deal with that we're not set up to deal with."
He likens a county jail to a garbage Dumpster. Jail administrators don't get to pick and choose what gets tossed in, but they have to make room for whatever comes their way.
Harris County sheriff's spokesman Lieutenant John Legg says the jail does not make special accommodations for juveniles.
"They're treated like any other inmate," he says.
Except for one glaring difference: isolation.
One reason for this, says Legg, "is for their own safety." He says several years ago, teens were allowed into common areas with each other during the day, but they would fight and steal each other's commissary items, so jail officials decided to keep them in their cells for a majority of the time. A choice, says Legg, "which has had the desired result."
While the violence may be down, isolation has not eliminated it, if you listen to the kids themselves. All of the juveniles that the Houston Press interviewed who are currently in the jail say they or their fellow teens sneak out of their cells from time to time by placing toilet paper in their cells' door locks, making it appear to the guards that the doors are shut, when in fact they are open. The kids say they do this to get out of their cells and fight each other.
This doesn't surprise McKnight. He acknowledges what psychologists say, which is that isolation can make young inmates feel the need to act out.
"They're already under a lot of stress because they are in jail charged with a pretty heavy offense," he says. "And then shoving them in isolation, that doesn't help any. That makes it much more stressful and increases your suicide and violence risk. They might just flare up at any moment because they're pent up with all that anxiety and something's gotta blow."
According to the sheriff's office, the teens are allowed out of their cells 20 hours a week, including recreation time and schooling. The kids themselves, however, told the Press that they receive somewhere between two and four hours a week of classes and that they don't always get a full three hours of recreation time.
Still, 20 hours a week outside of their cells means the teens spend nearly 90 percent of their time locked up alone.
Legg, though, doesn't quite see it that way.
"Out of a 24-hour day," he says, "I think it would be safe to take at least eight hours of that time out because they are sleeping. So they're not really locked down, so to speak, for 23 hours."
Sue Burrell says that line of thinking is "garbage. However you slice it, it means that kids are out of their room for [approximately] one hour a day...and they are defending that practice? Unbelievable."
To the adult jailors, though, it all comes down to a choice between the lesser of two evils: general population or segregation and isolation.
"They shouldn't be held in 23-hour lockdown," admits McKnight, "but
unfortunately that's where we have to put them for their safety and for
everyone else's safety. It's a trade-off that we are forced to
Peering through the glass wall in the jail's visitation area, a 16-year-old we'll call Diego is excited to see a visitor. It means he gets to try to have a conversation, or at least some version of one.
"It's hard to talk with people," says Diego, who has been in the county jail for the past six months, charged with aggravated robbery. "There's nothing to relate to. I'm in here by myself 23 hours a day."
He is happy, though, because at least he gets out of his cell.
"It's always the best part of my day," he says.
Like George, Diego says time drones on, blending into one seamless, never ending day. He is bored constantly. So bored, he says, that some days he can't even concentrate to read. Occasionally, he catches himself talking to himself out loud. At times he's thought he was hallucinating. Like many other teens in segregation, he'll beat on his cell door and try to start a riot, "sometimes because we didn't get our full hour out of our cell and sometimes because there's nothing else to do."
He says he can't wait to turn 17 and get placed in with other inmates, or get convicted and go to prison, just so he can escape the isolation.
"The worst thing is the pain of being alone in my cell 23 hours a day," he says. "This is the worst place I have ever been."
If only, he muses, he could go back to the juvenile detention facility, where he was held before being certified as an adult.
"I'm too young to be in here," he says. "It would be much better to have school all day and some therapy."
As it is, he says, he receives no counseling at all.
It's no secret that the adult criminal justice system is not geared toward rehabilitation, and when it comes to teens, numerous studies prove the point. According to the Office of Juvenile Justice and Delinquency Prevention, part of the U.S. Department of Justice, "six large-scale studies" found higher recidivism rates among juveniles who had been transferred to the adult system, compared to those who remained in the juvenile system (see "For Their Own Good: A Chance at Rehabilitation").
A few state and federal lawmakers have taken notice and are attempting to change both the certification process and the way in which certified teens are held pretrial.
In Texas, Representative Sylvester Turner of Houston has introduced a bill that would require judges to specifically state the reasons for transferring a child to the adult court, ending the use of form orders.
In Congress, Senator Patrick Leahy, Democrat of Vermont, has introduced a change to the Juvenile Justice and Delinquency Prevention Act. The amendment states that in order for counties to receive funding through the federal justice program, they must detain all children in juvenile facilities, even if they've been certified. If and only if a judge determines after a hearing and in writing that the child is a risk to public safety, can the juvenile be held in adult jail.
In juvenile detention, according to Kendall Mayfield of the Harris County Probation Department, children receive seven hours a day of schooling, contact visits with their parents, therapy, and they get to socialize more normally with their peers.
When asked about the possible solution of holding certified youths in the juvenile facility, Legg refused to discuss hypothetical situations because "as the sheriff has said in response to other similar types of questions, 'it really doesn't matter what I feel; it wouldn't change the reality of the situation right now.'"
Harvey Hetzel, head of the Harris County Juvenile Probation Department, however, says his facility has enough beds to house certified youths.
"I didn't realize they were being put in isolation," he says, "and I certainly don't think that's appropriate. We could better deal with them, but it's a different population than what we have, so we'd have to gear up for it."
It all boils down to where the county spends its money and political will.
When asked if he would support additional resources for Hetzel to house certified juveniles, County Judge Ed Emmett declined to comment. His spokesman, Joe Stinebaker, says Emmett did not know that certified juveniles were held pretrial in isolation most of the time and does not want to talk about a situation he knows little about.
Aside from a lack of awareness on the issue, says McKnight, "the average person wants the county to spend money on more officers, not more cells. They want the [inmate] in or under the jail, fed bread and water, and that's it."
Unfortunately, for many people, it's an all or nothing mentality when it comes to criminal justice.
"You're either in favor of locking up everybody and everything and are 'hard on crime,'" Dvoskin says, "or you're a yellow-bellied coward who wants to let these guys rape everybody's daughter. But nobody gets elected saying, 'Let's use some common sense.' This is a very complex issue. We have to ask ourselves, 'Do we want to give up on these kids?' And if so, how hard a decision should that be?"
In the meantime, kids such as George sit alone in their cells, waiting for their day in court, taking refuge the only place they can: in their dreams.
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