It has been nearly 100 years since Texas raised the age of criminal responsibility from eight years old to 17, and today, Texas is only one of six states that still considers 17-year-olds as adults in the criminal justice system.
On Thursday, though, the Legislature got a step closer to passing legislation that would raise the age to 18 after the House passed House Bill 122 with an 82-62 vote, sending the bill over to the Senate. Representative Gene Wu (D-Houston) called it “the most important change to our criminal justice system that we have done in probably five decades.” And while the costs associated with pouring thousands of more teens into the juvenile justice system was lawmakers’ primary concern, even fiscal conservatives such as Kyle Bidermann and Byron Cook made the case for the legislation, noting how 16- and 17-year-olds charged with the same crime have strikingly different outcomes and consequences.
“We have an opportunity today to do something positive, do something right, and make sure these kids have a chance in life,” Cook said. “The costs associated with people who can’t perform in society costs us much more than worrying about where they’re gonna be housed temporarily.”
Under the raise the age bill, filed by Representative Harold Dutton (D-Houston), 17-year-olds charged with heinous crimes could still be certified to stand trial as adults. But the bill is expected to benefit the thousands of other 17-year-olds who are charged with misdemeanors or drug offenses, which end up following them for the rest of their lives.
Using data showing total arrests of 17-year-olds in Harris County in 2015, the Houston Press found that just 6 percent of the roughly 3,500 arrests were for violent offenses. Meanwhile, possession of less than two ounces of marijuana accounted for 16 percent of all arrests, with drug possession clocking in at 23 percent overall and misdemeanors accounting for 75 percent of all arrests. To advocates, that indicates most 17-year-olds wouldn't be locked up in juvie — they would be released to their parents as the judge and probation officers decide the best course of action.
Statewide, in 2015, roughly 22,600 17-year-olds were arrested, and according to a 2017 study from a coalition of Raise the Age advocates, the vast majority of their crimes are similar to the crimes 16-year-olds most often commit. For 17-year-olds, the top five offenses leading to arrest were theft, drug possession, assault, drunkenness and liquor law violations; while for 16-year-olds, the top five were theft, assault, drug possession, running away and curfew and loitering violations. Yet despite the similar crimes, the detention rate for 17-year-olds is 36 percent versus 23 percent for 16-year-olds, the study found.
“From a long term perspective, we know processing 17-year-olds in the adult systems makes it more likely they will recidivate and less likely that they will grow up and become successful tax paying citizens as adults,” said Jay Jenkins, an attorney with the Texas Criminal Justice Coalition, which worked on the 2017 Raise the Age report. “By preventing even a small number of juveniles from being involved with the criminal justice system for the rest of their lives, those cost savings are enormous. Long term, this will save the state of Texas a lot of money.”
Senator John Whitmire, however, is more concerned with what it will cost the state of Texas when it’s implemented.
Despite being one of juvenile justice’s most vocal advocates, championing some of its most successful reforms since 2007, Whitmire happens to be raise the age bill’s biggest critic and perhaps its biggest roadblock.
During an interview with the Press, Whitmire focused on what he sees as the two main reasons the legislation won’t work. Whitmire called the legislation an unfunded mandate and said his colleagues have failed to come up with any sort of implementation plan. He also repeatedly talked about how dangerous the current Texas Juvenile Justice department state facilities are — the juvenile equivalent of state prisons — and said he would not want to more teenagers there until the facilities could be under control.
“We’ve made some major improvements since 2007, but the problem is now, it’s a harder, tougher population [at the juvenile state facilities], because you have to be a felon. Many of the students going there now are violent offenders. That’s the juvenile system I’m talking about. Once I feel like we have a safe environment and a working juvenile justice system adequately funded, then I will entertain the idea of increasing it.”
Still, according to the Texas Raise the Age Coalition’s report, only 2.4 percent of 16-year-olds are sent off to these facilities, and given their crimes are similar to those 17-year-olds commit, that rate is not expected to change once 17-year-olds enter the juvie system. In Harris County, only 2 percent of juveniles overall were sent off to TJJD.
Given Whitmire has spent much of the last several years advocating for reducing TJJD as much as possible, it’s no wonder he doesn’t want more teen felons in it. But for the vast majority of lawmakers on the fence about the legislation, the main question is how local counties are going to fund the changes.
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Tom Brooks, executive director of Harris County Juvenile Probation Department, said he did not think Harris County could handle the influx of 17-year-olds, mostly due to the fact that the current detention center is already severely overcrowded and Brooks is already budget-cutting mode. (He recently had to cancel his $3.2 million contract with the Harris County Psychiatric Center, losing 21 beds.) For raise the age to work, he said he would need to hire 15 more probation officers and create another juvenile court, which would cost $1.3 million (taken from the court administration budget, not juvenile probation).
But Brooks is also in luck: To account for overcrowding, Harris County had already planned to build another juvenile detention facility, which Brooks said would likely be able to handle housing 17-year-olds. (Weirdly, the Legislative Budget Board included the cost of building the already-planned facility in its raise the age fiscal impact study — which is one of several reasons many legislators on Thursday said they were wary of the LBB’s cost estimates.) The problem for Brooks was that the facility isn’t slated to open until 2020, yet raise the age would go into effect in 2019.
On Thursday, Representative James White filed an amendment to the bill so that it does not go into effect until 2021. The plan is to create an advisory board made up of local and state officials, and to give plenty of time to more accurately study the costs — since no one seems to agree on what they are — and also… well, come up with a plan for implementation.
Whether this will appease Senator Whitmire, however, remains to be seen.