If a juvenile who's been certified as an adult is found guilty of a crime, there is a procedure in Texas that would seem to give both the teen and the prosecutor the best of both worlds: the rehabilitative environment of a juvenile facility plus long-term incarceration in a state prison. It is called determinate sentencing.
Under this procedure, the teen goes to a Texas Youth Commission facility until he is 19. Then, depending on the outcome of a court hearing, he can be sent to state prison for up to 40 years.
Statistics obtained from the Harris County Juvenile Probation Department show that for the past decade, determinate sentences have been given to roughly half as many juveniles as are certified.
A major problem, however, as far as prosecutors are concerned, is that TYC officials have the power to place a teen on parole after he turns 19 instead of sending him to prison, so long as juvenile officials feel he has been rehabilitated.
"One could argue that determinate sentencing might be the way to go," says Bill Moore, Juvenile Division Chief for the Office of the Harris County District Attorney, "but the cases getting certified are pretty bad crimes and frankly we want to lock them up."
Prosecutors' hesitation to use determinate sentencing taps into a larger issue, one that appears to be causing the number of juveniles certified as adults to spike.
Up until the end of 2007, TYC could hold juveniles until they turned 21. The state legislature, however, reduced the age to 19 in an attempt to refocus the commission's attention on rehabilitating the younger kids and reducing the number of juveniles in state facilities.
According to TYC Ombudsman Will Harrell, an unintended result of the new law has been that more kids are being certified.
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In fiscal year 2008, the first year the change was in effect, juvenile courts across Texas certified 30 percent more kids than the year before, according to a report from Harrell's office. It marked the largest number of certified teens since 1999. At the same time, the overall number of referrals to the juvenile system decreased by almost 6 percent, according to the report.
The reason is simple. Judges and prosecutors feel that there is now less time, perhaps not enough time, for teens to be rehabilitated in a juvenile facility before they are released, especially if they are closer to 17 than 14 when they're sentenced.
"Anecdotally," says Harris County Juvenile Court Judge Michael Schneider, "just from talking to judges across Texas, almost every one of them has reported to me that they are certifying more kids now as a result of the change."
Harrell and other juvenile justice advocates are working and lobbying to get the age restriction restored to 21. They argue that unless the age limit is raised, more and more kids will continue to be certified, meaning, in Harris County at least, that more and more kids will wait for trial while locked up in isolation.