Texas Takes Small First Step Towards Humane Treatment, Punishment for Youthful Offenders

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair


The Texas Criminal Defense Lawyers Association (TCDLA) releases every two years after each session of the Texas Legislature a summary of new or amended laws enacted during the legislative session. This year Kristin Etter (TCDLA’s Voice of the Defense) has provided this continuing education service from TCDLA to criminal defense attorneys throughout the state. It is not only a continuing education service but an invaluable research tool as well. This blog over the next couple months will feature in depth articles about the most significant pieces of legislation that emanated out of the 2009 Texas Legislature and their potential impact on the state’s criminal justice system with special appreciation to the TCDLA.


For example, one of the most significant changes in our laws was the Legislature decision to eliminate life without parole for juvenile offenders who are certified as adults under Texas Penal Code § 54.02 and tried for capital murder under Texas Penal Code § 12.31. The Legislature amended the Texas Government Code § 504.145 to allow for parole eligibility for juveniles tried as adults after a period of 40 years.


This legislation is significant because the U.S. Supreme Court in two consolidated Florida cases, Terrance Jamar Graham and Joseph Sullivan, both of whom received life sentences without the benefit of parole, has decided this term to decide the issue of whether life without parole for juveniles tried as adults is unconstitutional as being cruel and unusual punishment under the Eighth Amendment. At age 16, Graham was convicted of being an accomplice to an armed burglary and attempted armed robbery—the only criminal offenses he had ever committed in his life—and sentenced to life without parole. At age 13, Joe Sullivan was convicted of a rape committed following a house burglary and sentenced to life without parole with there being serious doubts about whether Sullivan was the actual rapist.


As of July 2009, the Washington, D.C.-based The Sentencing Project (Nellis, Ashley and King, Ryan S. No Exit: The Expanding Use of Life Sentences in America) reported that there are 140,610 individuals serving a life sentence in the nation’s prison system (one in every 11 prisoners). Of those lifers, 6,807 of them are juveniles tried as adults with 1,755 (or 25.8%) of them being juvenile life sentences without parole (JLWOP).

The State of Texas has 8,558 inmates serving life sentences with 71 of them being life without parole. Two-thirds of the inmates serving life sentences in Texas are either black (43.5%) or Hispanic (22%). 422 of the lifers are juveniles tried as adults with three of those being JLWOPs.


The Sentencing Project found that while there are juveniles serving life sentences in practically every state in the nation, 50% of them are serving time in five states: California (2,623), Texas (422), Pennsylvania (345), Florida (338) and Nevada (322). These fives states—and as we know from hands-on experience, Harris County, Texas—adhere to the conservative law-and-order political mindset, “adult crime, adult time.” The Sentencing Project found that while this attitude may feel good to a fearful public and enhance the “law-and-order” credentials of state legislators, it makes “for very poor policy.” The respected Project explained why:


“Once transferred to the adult court [system], young people face the same sentencing options as adults, including the possibility of sentences to life or life without parole. For some cases, there are no sentencing options available to judges; mandatory life sentences are required for certain crimes through state statute. In these cases, one’s young age or other mitigating factors cannot be included in determining the appropriate sentence length. Twenty-nine states require mandatory JLWOP sentences for at least one crime, usually specifically listed homicides.


“Pennsylvania leads the nation in the number of youth sentenced to life without parole: there are 345 juveniles serving life sentences in Pennsylvania. As in most states, youth of color are overrepresented in the juvenile justice system in Pennsylvania from the point of arrest through point of placement. In 2007, 39.9% of juveniles arrested in Pennsylvania were African-American. Among Pennsylvania’s youth in detention, 53.9% are African-American and nearly 70% of the JWOLP population is comprised of youth of color.”


These Pennsylvania conclusions are borne out by Texas life sentence statistics as well: the worst punishment in the state’s criminal justice system, especially among juveniles, is indeed reserved primarily for “youth of color.” When any state’s criminal justice system appears to target race and ethnicity as its primary reason for imposing punishment, the policy is destined for failure because it only breeds disrespect for the rule of law.


The Rush Limbaugh-conservatives and Glen Beck’s racists demanding “state rights” will automatically say “well, youth of color commit the “worst of the worst” violent crimes that deserve life without parole. But a Human Rights Watch study in 2005 found that 59% of the JLWOPs were first offenders, just like Terrance Graham and Joe Sullivan. Further, the HRW study found that 26% of the JLWOPs were not the primary assailant, and in some cases were just present when the crime occurred.


The Equal Justice Initiative (EJI) is a non-profit law organization with offices in Montgomery, Alabama and New York City. This group has coined the term “a death in prison sentence” to describe JLWOPs. In a 2007 study, “Cruel and Unusual: Sentencing 13- and 14-Year-Old Children to Die in Prison,” EJI identified 73 JLWOPs who were 13 and 14 years of age when “condemned to die in prison.”


To fully understand this complex issue, it should be noted that 13 and 14 year old children in this country cannot drive a car, watch an R-rated horror movie by themselves, legally buy cigarettes or drink beer, legally get married, can work only limited hours after school, or exercise a litany of other social rights enjoyed by adults. But they can be tried, convicted, and sentenced as adults in the American judicial system. The United States, according to EJI, is the only country in the world known to have incarcerated a 13-year-old in an adult prison with a life sentence without the benefit of parole. The Convention on Civil and Political Rights and the Convention on the Rights of the Child [ratified by every nation in the world except the United States and Somalia] have unequivocally rejected laws that allow juveniles to be sentenced to life sentences without the benefit of parole eligibility. The Convention Against Torture, Cruel, Inhuman or Degrading Treatment or Punishment has observed that a life sentence without the possibility of parole imposed on children “could constitute cruel, inhuman or degrading treatment or punishment.”


Worst yet, the United States was only one nation that opposed a United Nations General Assembly resolution that called for the abolition of the death penalty and life imprisonment without the possibility of parole for those under the age of 18 at the time of the commission of their crimes. This puts America is in a league of its own with its near-patriotic lust for revenge. This nation now incarcerates more people per capita than any country in the world. Americans love to kill and punish – even it’s most deprived and disadvantaged children.


The EJI report stated that “most of the children who have been sentenced to die in prison at 13 or 14 come from violent and dysfunctional backgrounds. They have been physically and sexually abused, neglected, and abandoned; their parents are prostitutes, drug addicts, alcoholics, and crack dealers; they grew up in lethally violent, extremely poor areas where health and safety were luxuries their families could not afford.


“’[Y]outh is more than a chronological fact … it is a time and condition of life when a person may be most susceptible to influence and psychological damage.’ During 2005, approximately 899,000 children in the 50 states, the District of Columbia, and Puerto Rico were determined to be victims of abuse or neglect. More than 60% of victims suffered neglect, 14% suffered physical abuse, 10% suffered sexual abuse, and 7% were victims of emotional maltreatment. An estimated 1460 children died due to child or neglect in 2005—a rate of 1.96 deaths per 100,000. More than 40% of child fatalities were attributed to neglect, while physical abuse also was a major contributor to child deaths. Nearly 80% of perpetrators of child maltreatment were parents, and another 6.8% were other relatives of the child victim.


“Children sentenced to die in prison have in common the disturbing failure of police, family courts, child protection agencies, foster systems, and health care providers to treat and protect them. Their crimes occur in the midst of crisis, often resulting from desperate, misguided attempts to protect themselves.”


Of course, it must be conceded that the crimes committed by some of these young people are extremely horrific. In their book “Capital Punishment: An Indictment by a Death Row Survivor” (Arcade Publishing, N.Y. 2009), Jodie and Billy Sinclair featured an essay titled “Youth Violence.” It conveyed a measure of the terrible harm some of our damaged children have inflicted upon our society. The authors pointed out that “ … thirty-nine states have adopted policies of jailing the young in adult prisons with life sentences and no benefit of parole, according to a study by Northwestern University Law School’s Children and Family Justice Center and the John Howard Association. These states—almost the entire Union—now incarcerate approximately 2,300 ‘kid lifers.’ Illinois enacted its kid-lifer law twenty years ago, but it has recently joined with California, Florida, Michigan, and Nebraska in trying to change it.


“States should not be in the business of warehousing human beings for 40, 50, or even 60 years, long after brain maturation has probably ended their violent tendencies. To avoid the staggering costs of incarcerating youthful offenders for a half-century or more, the nation must rescue children victimized by domestic violence, sexual abuse, and drug abuse.

“Juvenile predators mirror the soul of the society that produced them. They are born innocent. Society and circumstance transform them into predators. Public rants from law-and-order politicians and hate-filled demands for vengeance by crime victims’ advocates are not the answer. They only fuel the cycle of violence.”


While we commend the Texas Legislature for eliminating JLWOP for this state, a 40-year parole eligibility is a too severe and impractical alternative. A 13 or 14 year old held in prison for 40 years before being eligible for release will more than likely know no other life than the one prison indoctrinates him with, either by a criminal values system or an institutionalized values system—both of which will make a successful reentry into society exceedingly difficult, if not impossible. We would hope that at some point in the future the Texas Legislature will find the courage to reduce the 40-year parole eligibility to a more reasonable time of imprisonment, one that protects society, provides justice but also allows redemption and reintroduction into society.+




Kristin Etter, http://www.tcdla.com/voiceforthedefense/voiceforthedefense.htm

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair