On July 25th, the Philadelphia Daily News reported that state lawmakers will be holding hearings about life-without-parole sentences for juveniles.

Pennsylvania has 444 people serving life-without-parole sentences for crimes they committed as juveniles, according to Human Rights Watch. Nationally, 2,484 lifers are behind bars for crimes they committed as juveniles. No youth outside the United States are serving such sentences, said Alison Parker, deputy director of the group’s U.S. program.

Pennsylvania isn’t the only state taking a second look at these sentences.

Lawmakers in California, Florida, Illinois, Louisiana, Michigan and Nebraska have considered providing parole relief for juvenile lifers, Parker said. Colorado in 2006 became the only state to pass legislation eliminating life-without-parole sentences for juveniles, she said.

Could this be the beginning of a national trend?

That could be an important question given the Supreme Court’s reasoning in Roper v. Simmons (2005) and Kennedy v. Louisianna (2008). Roper held that the death penalty for crimes committed by a person under 18 is unconstitutional, and Kennedy held that the death penalty for child rapists is unconstitutional. In both cases, the Court looked at what the states were doing:

In these cases the Court has been guided by “objective indicia of society’s standards, as expressed in legislative enactments and state practice with respect to executions.” Kennedy quoting Roper at 2650.

Though our review of national consensus is not confined to tallying the number of States with applicable death penalty legislation, it is of significance that, in 45 jurisdictions, petitioner could not be executed for child rape of any kind. That number surpasses the 30 States in Atkins and Roper and the 42 States in Enmund that prohibited the death penalty under the circumstances those cases considered. Kennedy at 2653.

If states like Pennsylvania actually start changing these laws, it could help arguments in future cases challenging the constitutionality of these sentences. For now, the 2,484 individuals currently serving life-without-parole sentences for crimes committed as juveniles will need to wait and see if states like Pennsylvania follow Colorado’s lead.

On July 8th, ABC’s Nightline aired an incredible story about child slavery in Haiti. Reporter Dan Harris began his “unsettling experiment” one morning in Manhattan and within 10 hours, he had purchased a 10 year old girl in Haiti for $150. You can read or watch the rest of the report online. Also, Dateline NBC did some undercover investigations a few years ago about child sex slaves in Cambodia (watch report online).

Unfortunately child slavery, isn’t isolated to a few countries like Haiti and Camboida, but is instead a problem worldwide (UNICEF). There are numerous organizations trying to improve the lives of these children and to help prevent human trafficking in general. This global tragedy will take a global effort to try and prevent it. Below is information about current U.S. laws and policy regarding this issue:

“The Office of the Under Secretary for Democracy and Global Affairs, headed by Dr. Paula J. Dobriansky, coordinates U.S. foreign relations on a variety of global issues.” One of the offices she coordinates is the Office to Monitor and Combat Trafficking in Persons (G/TIP), headed by Amb. Mark Lagon. That office “provides the tools to combat trafficking in persons and assists in the coordination of anti-trafficking efforts both worldwide and domestically.”

There’s a lot of information on G/TIP’s website about United States policies and efforts in this area. Here are a few excerpts.

In 2003, the United States strengthened its ability to fight child sex tourism by passing the Prosecutorial Remedies and other Tools to end the Exploitation of Children Today (PROTECT) Act and the Trafficking Victim’s Protection Reauthorization Act. These laws increase penalties to a maximum of 30 years in prison for engaging in CST. Since the passage of the PROTECT Act, there have been over 20 indictments and over a dozen convictions of child sex tourists. The Department of Homeland Security has also developed the “Operation Predator” initiative to combat child exploitation, child pornography, and child sex tourism. The United States is also funding the NGO World Vision to conduct major public awareness and deterrence campaigns overseas that include public service announcements, internet messaging, brochures, posters, and billboards.

Facts About Child Sex Tourism

In addition to enforcing these laws, the United States also issues a report each year in which it ranks countries into 3 tiers. The tiers represent how well the country is combating human trafficking.

The Tiers

TIER 1 Countries whose governments fully comply with the Trafficking Victims Protection Act’s (TVPA) minimum standards TIER 2 Countries whose governments do not fully comply with the TVPA’s minimum standards, but are making significant efforts to bring themselves into compliance with those standards TIER 2 WATCH LIST Countries whose governments do not fully comply with the TVPA’s minimum standards, but are making significant efforts to bring themselves into compliance with those standards AND: a) The absolute number of victims of severe forms of trafficking is very significant or is significantly increasing; or b) There is a failure to provide evidence of increasing efforts to combat severe forms of trafficking in persons from the previous year; or c) The determination that a country is making significant efforts to bring themselves into compliance with minimum standards was based on commitments by the country to take additional future steps over the next year TIER 3 Countries whose governments do not fully comply with the minimum standards and are not making significant efforts to do so

Countries in Tier 3 can be subject to certain sanctions by the US.

The annual Trafficking in Persons Report serves as the primary diplomatic tool through which the U.S. Government encourages partnership and increased determination in the fight against forced labor, sexual exploitation, and modern-day slavery.

This problem is global and children in the United States are at risk as well.

Trafficking Victims Protection Reauthorization Act of 2005, Title III. Sect. 2(5)

5) No known studies exist that quantify the problem of trafficking in children for the purpose of commercial sexual exploitation in the United States. According to a report issued by researchers at the University of Pennsylvania in 2001, as many as 300,000 children in the United States are at risk for commercial sexual exploitation, including trafficking, at any given time.

Global Law Enforcement Data

The Trafficking Victims Reauthorization Act (TVPRA) of 2003 added to the original law a new requirement that foreign governments provide the Department of State with data on trafficking investigations, prosecutions, convictions, and sentences in order to be considered in full compliance with the TVPA’s minimum standards for the elimination of trafficking (Tier 1). The 2004 TIP Report collected this data for the first time. The 2007 TIP Report data shows for the first time, a breakout of the number of total prosecutions and convictions that related to labor trafficking, placed in parentheses.

Year	Prosecutions	Convictions	New or Amended Legislation
2003	7,992	2,815	24
2004	6,885	3,025	39
2005	6,178	4,379	40
2006	5,808	3,160	21
2007	5,682 (490)	3,427 (326)	28

The numbers in parentheses are those of labor trafficking prosecutions and convictions.

An excerpt from an “Interview of Secretary of State Colin L. Powell” by Chris Hansen of Dateline, Dec. 11, 2003, Washington, D.C.

MR. HANSEN: Why should Americans be concerned about the sex trade in Cambodia?

SECRETARY POWELL: How can we turn away? If we want to have friends in the world, if we want to have better relations with the countries of the world, we have to help them with this kind of problem.

You know, can you imagine the spread of disease that is taking place with this kind of activity? Can you imagine what will happen to these girls when they’re 15 or 20?  What will become of them?  They’ll have no education. They will be — they will have been used and tossed away and ruined.

And that affects not just these girls, it affects that country.  It affects the family life in that country, it affects society development, it affects income, and, therefore, it affects foreign policy.

So, as the Secretary of State, why is the Secretary of State worried about trafficking in persons?  Because it deals with foreign policy.  It deals with economic and social development within a country.  And a country that does not treasure its youth and protect its youth is not going to be moving in the right direction in the 21st century.

And a nation such as ours, which says we are a moral nation, and that we have a value system, that we would allow our citizens to go over and fuel that trade, by their presence and by their money and by their rotten exploitation of these children, we wouldn’t be living up to our values if we didn’t do something about it.

MR. HANSEN:  What can you do to crack down on the countries involved?  What kind of sanctions would you levy?

SECRETARY POWELL:  Well, there’s a lot of things we can do.  We can withhold foreign assistance money, we can make them not eligible for certain programs that we have, and the law requires us to look at these kinds of remedies.  And what we have found with this Tier 1, 2, 3 system, as time comes every year for the report to be written, a lot of countries want to know, what Tier are we in?  We’re not going to be in Tier 3, are we?  It’s a heck of a stigma to suddenly show up in Tier 3.

Now, we also recognize that there’s trafficking in the United States.  There is exploitation taking place in our own country.  So we’re not totally clean on this and we make that clear.  And the kind of exploitation that you’re talking about in this piece that deals with the sexual exploitation of children, there’s lots of other exploitation that we’re worried about, a lot of other tracking in persons:  for sweatshops, to go in the mines, young people who are not getting an education but are being exploited for their manual capacity as young people, and they’re being ruined just as well as these young people in the sex trade in Cambodia or elsewhere in the world.

The newest Trafficking in Persons Report released in June 2008 has detailed descriptions of what countries around the world are doing to help stop human trafficking. Here is an excerpt from Cambodia’s section of the report:

The Royal Government of Cambodia does not fully comply with the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so. Cambodia is placed on Tier 2 for the first time since 2004 due to the government’s increased engagement in combating trafficking in persons over the previous year. The government created a national anti-trafficking task force to improve the interagency response to trafficking and coordination with civil society, increased law enforcement action against traffickers and complicit officials, and undertook prevention activities. In February 2008, Cambodia’s new Law on the Suppression of Human Trafficking and Commercial Sexual Exploitation was promulgated and went into effect immediately. This legislation provides law enforcement authorities the power to investigate all forms of trafficking and is a powerful tool in efforts to prosecute and convict traffickers and have them face stringent punishments. High-level government officials have spoken publicly about a “zero-tolerance” policy for officials profiting from or colluding in trafficking in persons.

This is a major global problem. How would you rate the actions of the U.S. so far in addressing it? The State Department website leaves me with the impression that the U.S. is taking significant action to help these children, however, the Nightline, Dateline, and other (here, here, and here) reports make me wonder if U.S. and other nations’ policies have had much effect at all. How effective do you think these policies are and what more should American and other countries be doing to help put an end to this tragedy?

In November 2008, the Sunset Commission will issue a report with recommendations for TYC. (Link) The Sunset commission “periodically evaluate a state agency to determine if the agency is still needed, and what improvements are needed to ensure that state funds are well spent.  Based on the recommendations of the Sunset Commission, the Texas Legislature ultimately makes decisions as to the future operations of the agency.”

Major efforts have been made to reform TYC. Below is a timeline of TYC events and an update on where TYC is today:
A Timeline

February 2005 – Texas Ranger sergeant began investigating allegations of sexual abuse at Pyote Facility involving Ray Brookins, former assistant superintendent, and John Paul Hernandez, former principal. (DMN 2/18/07)

February 2005 - Ray Brookins and John Paul Hernandez both resigned (DMN)

February 18, 2007 – News Media Reports about the sexual and physical abuses occurring at TYC (DMN)

March 2, 2007 – Allegations of sexual abuse at the Ron Jackson State Juvenile Correctional Facility in Brownwood are reported in the media indicating that this was not an isolated incident (DMN)

March 2007 – State Auditor’s Office report identifies several issues (state auditor report)(PDF)

March 15, 2007 – DOJ reports findings from an investigation of the Evins facility. Finds the conditions unconstitutional because of the harm the inmates are experiencing. (DOJ report)(PDF)

March 15, 2007 – Between January 2000 and March 15, 2007 there were 16,310 allegations of incidents involving juveniles at TYC. 4,454 of those allegations were confirmed by TYC. (DMN)

March 29, 2007 – Texas Senate confirmed Governor Rick Perry’s appointment of Jay Kimbrough as Conservator of TYC. (press release)

April 9, 2007 – Brookins and Hernandez are indicted and arrested for “charges that they “sexually abused teenage inmates at the state juvenile prison in Pyote.” (DMN)

June 8, 2007 – SB 103 and companion bill HB 2807 were signed into law. The bills provide for reform efforts at the agency. (SB 103)

June 8, 2007 – Governor Perry appoints Ed Owens to replace Jay Kimbrough as TYC conservator. (Governor’s Website)

June 2007 – Dimitria Pope appointed as acting executive Director after spending most of her career working at the Texas Department of Criminal Justice (DMN)

August 2007 – TYC announces new Pepper Spray policy. The new policy permits guards to use pepper spray more often than in the past. (DMN)

October 2007 – TYC ends contract with GEO Inc. for the Coke County facility. The 197 male inmates are immediately moved to the TYC facility in Mart, TX. (DMN)

November 2007 – TYC reverses its pepper spray policy (Texas Appleseed/Chronicle) (PDF)

December 19, 2007 – Governor Perry appoints Richard Nedelkoff to replace Ed Owens as conservator. (Governor’s Website)

February 12, 2008 – Dimitria Pope, the TYC acting executive director, announces her resignation (DMN)

May 6, 2008 – 70 inmates at TYC’s facility in Giddings broke out of their cells and started running around the campus and climbing into trees and onto the rooftops of the facility. (DMN)

June 12, 2008 - ACLU sues TYC for mistreatment of girls at the Brownwood facility (Statesman)

An Update on Reform

The Texas Observer Blog has had several posts recently describing how those involved with TYC reforms are feeling about the progress the agency has made.

Rehabilitating TYC

Perhaps the agency has been so hard to rehabilitate because its problems extend beyond a handful of troubled facilities or a flawed approach to juvenile justice. Mental health advocates blame public officials’ failure to recognize the importance of early intervention programs within the mental health system statewide as a key culprit.

Mission Redefinition for TYC

There was much talk of transitioning from large, rural TYC detention centers to smaller, urban facilities, which would keep youth offenders closer to their families, increase community involvement and allow for specialized treatment.

Trickle Down Reform

Despite the ACLU’s TYC lawsuit, many juvenile justice advocates assert that, while it’s slow-moving, there is progress at TYC — trickling down from the top.

What are you’re thought? Is TYC headed in the right direction? What should be done next?

Unfortunately, children are sometimes confronted with serious adult situations with lifelong consequences. On April 2, 2008, a fourteen year old Baytown girl encountered such a situation when she gave birth to a baby in the restroom of her junior high school (Houston Chronicle Story). According to the girl’s lawyer, she was unaware she was pregnant and also unaware she had given birth. (Girl’s Story) According to the Baytown police, she intentionally or knowingly killed the baby. On June 26th she was charged with capital murder, and if tried as an adult, could spend the rest of her life in prison without parole. Capital murder in Texas for an adult has two punishments: death or a life sentence without parole. In 2005, the Supreme Court ruled in Roper v. Simmons that the death penalty is unconstitutional for persons under the age of 18. This leaves life without parole as the only available punishment for capital murder committed by a person under the age of 18. The average life expectancy of an American today is 78 years (Source). If found guilty of capital murder, then this girl is expected to spend 64 years in prison.

What We Know From the Press

Its easy to get a distorted view of a situation like this and make assumptions based off of bits and pieces of information presented in the media. From what I’ve read, these seem to be the relevant facts:

The girl was at full term between 35 and 36 weeks. The baby boy was born 5 pounds 6 ounces and 18 inches long. It is uncertain whether or not the girl knew she was pregnant. The girl was in the nurses office for 2 and a half hours with a heating pad for complaints of cramps that morning. After leaving the nurse’s office she went to the restroom where she then gave birth. No adults knew the girl was pregnant, including her parents and the nurse. “The Medical Examiner’s Office determined that the baby boy died after being submerged in water with paper obstructing his airway and receiving blunt force trauma to his head and neck.” (Baytown Sun Article) After a 12 week investigation, the Baytown Police believe the evidence shows that this was done intentionally and knowingly.

Capital Murder in Texas

In Texas, murder is “intentionally or knowingly causing the death of an individual.” Tex. Penal Code §19.02(b)(1). To be capital murder, the crime must be committed with one of the circumstances listed under the capital murder statute. §19.03(a). In this case, the relevant circumstance was the age of the victim. It is capital murder if the victim is under six years old. § 19.03(a)(8). A prosecutor has discretion when deciding what charges to bring against the defendant. So for example, the prosecutor could charge the defendant with a lesser offense, even though all the elements of capital murder are present. However, in Harris County, the District Attorney’s office has a policy of charging defendants with the highest level crime for which all the elements are met. As of now, the prosecutor for this case is following that policy. (Houston Chronicle)

Adult or Juvenile: A Critical Decision

If this girl is not tried as an adult, but instead tried as a juvenile, then the maximum sentence she can receive is 40 years in prison. Tex. Family Code § 54.04(3)(a)(i). She would be sent to a TYC facility until the age of 19. (Overview of TYC) After turning 19, she would then be transferred to the adult prison system to finish the remaining 35 years of her sentence. If given the maximum 40 years, she would leave prison at the age of 54. In determining whether to waive original jurisdiction and transfer the girl to the adult criminal court, the Judge should look at several factors according to Tex. Family Code § 54.02(f):

(1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person;

(2) the sophistication and maturity of the child;

(3) the record and previous history of the child; and

(4) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.

“This is a very, very serious offense,” Thomas said to the girl. “But this is not permanent,” he said. “Your detention can be re-evaluated again in 10 days. So remember, we’ll be watching very closely to see if you behave appropriately.”(Houston Chronicle Article).

(e) At the conclusion of the hearing, the court shall order the child released from detention unless it finds that:

(1) he is likely to abscond or be removed from the jurisdiction of the court;
(2) suitable supervision, care, or protection for him is not being provided by a parent, guardian, custodian, or other person;
(3) he has no parent, guardian, custodian, or other person able to return him to the court when required;
(4) he may be dangerous to himself or may threaten the safety of the public if released; or
(5) he has previously been found to be a delinquent child or has previously been convicted
of a penal offense punishable by a term in jail or prison and is likely to commit an offense if released.

Roper v. Simmons and the Moral Culpability of a 14 Year Old Girl

[T]he Thompson plurality stressed that“[t]he reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult.”Id., at 835, 108 S.Ct. 2687. According to the plurality, the lesser culpability of offenders under 16 made the death penalty inappropriate as a form of retribution, while the low likelihood that offenders under 16 engaged in “the kind of cost-benefit analysis that attaches any weight to the possibility of execution” made the death penalty ineffective as a means of deterrence. Id., at 836-838, 108 S.Ct. 2687

[A]s any parent knows and as the scientific and sociological studies respondent and his amici cite tend to confirm, “[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.”

Capital murder in Texas is reserved for the most severe forms of murder. It carries with it the two most severe penalties in our criminal justice system. Although Roper was about the death penalty specifically, the Supreme Court makes important points about how we punish children under the age of 18. A 14 year old girl has a lot of life left to live. This makes a life sentence even that much more severe and that much more important to diligently apply in a fair and just way.

To be continued…

The events in Baytown at this junior high school is truly a tragedy. A newborn baby has been killed by what looks to be the actions of his young mother. The fate of that baby was in his mother’s hands that day, and now her fate is in our hands. As a society we must now decide what should be done. What eventually is done will reflect upon us as a society. The judicial process is really only just beginning for this girl and there is a long way left to go.

References:

Kent Greenawalt, Punishment 3 Encyclopedia of Crime and Justice 1282 (Joshua Dressler, Editor-in-Chief 2d ed. 2002, 1286-1287 in Joshua Dressler et al., Cases and Materials on Criminal Law 32, 36, 39 (3d ed.) 2003.

Michael S. Moore, The Moral Worth of Retribution Responsibility, Character, and the Emotions: New Essays in Moral Psychology (Ferdinand Shoeman, ed. 1987), 179-182 in Joshua Dressler et al., Cases and Materials on Criminal Law 32, 36, 39 (3d ed.) 2003.