Children are arrested daily and placed in the Harris County Jail. Why? Because Texas Law says they can.
Texas is one of a handful of States continuing to dually burden children as both child and adult offender. Texas law says 17-year olds are protected as children under the Texas Family Code until age 18. Yet, that same 17-year old is an adult for Criminal law purposes under the Texas Penal Code. The inherent legal conflict creates a significant challenge for people age 17. My experience suggests it likewise creates a disproportionate and increased risk for criminalization and increased punishment. Did you know that if you are 17 and a friend gives you a Xanax pill to hold for them while in school and you get caught in possession of that pill without a prescription you’re guilty of a felony? Kids are legally required to go to school until 18 but those grounds are considered worth increased protection and thus criminal enhancement, so kids 17 years of age, can go to State Jail for being subjected to the peer pressure that comes with the current challenges of high school. The result is one suffers a lifetime felony conviction for a childish decision despite science telling us “it doesn’t matter how smart teens are or how well they scored on the SAT or ACT. Good judgment isn’t something they can excel in, at least not yet. The rational part of a teen’s brain isn’t fully developed and won’t be until age 25 or so.” (https://www.urmc.rochester.edu/encyclopedia/content.aspx?ContentTypeID=1&ContentID=3051) Even so, all that’s being sought is to raise the age of criminal culpability to 18.
What does the law say you can do at 17? You cannot legally skip school, buy cigarettes or alcohol, cannot vote, cannot serve on a jury, cannot join the military without your parent’s consent and you cannot enter into a contract, but your Texas Legislature says you can stand before a Judge without your parent and go to prison, including for non-violent offenses.
So how does this play out for the increased risk population of 17-year olds on the streets? They cannot contract for a place to stay and realistically, are not gainfully employed and most often left home because of abuse or conflict. This population is perfect prey for people who will provide food and shelter for trade. What do 17-year olds have for trade? Their bodies, which is why the act is often called “survival sex.”
Survival sex is an act Harris County Courts saw often when I was the Chief Human Trafficking Prosecutor with the Harris County District Attorney’s Office. Texas law says children age 17 are guilty of prostitution unless they have been caused by any means to commit prostitution. Most often, the answer to this question is unknown upon initial recovery and arrest as sincere investigations take time and effort. During my time as the Chief, we sought to get prostituted 17-year olds out of the Harris County jail as quickly as possible through release to appropriate adults or locations. However, their age as children makes it difficult to place them in shelters.
Irrespective of placement, this survival sex population rarely has an appropriate guardian to voice the best interest of the child. Even if it did, Texas law doesn’t require parental notification or presence of a guardian upon a 17-year old child’s incarceration.
Here’s a typical scenario: a 17-year old is charged with a crime and placed in County Jail. Neither authorities nor the child notify the parents and no one makes bond, so they get called to court in a couple of days. The prosecutor and defense attorneys review the file. If the prosecutor makes a recommendation of “time served,” defense counsel has the ethical obligation to convey and explain the offer. Imagine the setting, the stench of a jail cell, the shared open steel toilet and being locked in with other inmates; at that point, the desire to “get me out of here” often overshadows the attorney’s warning that “time served” convictions stay on your record for life. If the child says they “want” time served, the attorney must vigorously argue that position to the court rather than the best interest of the child. This sounds messed up, right? That’s why the Juvenile Justice System (ages 10-16) system requires a parent or guardian step in and voice any long term or best interest concern during a plea. No such mechanism exists for these 17-year old children stuck in the adult jail before an adult court. The Texas Legislature has basically said “you’re on your own kid.”
And some wonder why it’s so hard to get these children to cooperate with and trust law enforcement and government.
It’s illogical to suggest this same dilemma does not exist for similarly situated vulnerable runaway 17-year olds seeking survival, possibly resulting in the commission of crimes such as theft (stealing food or clothes), criminal trespass (sleeping in a place they’ve been warned to leave) and the like. Add to it the changing brain which “might provide clues to a youthful appetite for novelty, and a tendency to act on impulse—without regard for risk.” (https://www.nimh.nih.gov/health/publications/the-teen-brain-still-under-construction/index.shtml) Placing 17-year olds in this position of making a life-altering decision by taking a conviction only straddles all of us with the cost of starting them through the revolving door of criminal justice.
Today, there’s HB 122, http://www.legis.state.tx.us/BillLookup/History.aspx?LegSess=85R&Bill=HB122 and SB 941 (http://www.legis.state.tx.us/BillLookup/History.aspx?LegSess=85R&Bill=SB941) before your Texas Legislature seeking to establish fair treatment by raising the age of criminal culpability to 18. Let’s hope it doesn’t meet the same fate of last Session when “House and Senate negotiators agreed to strip out the amendment before a final vote …” http://jjie.org/2015/06/01/texas-juvenile-justice-reformers-raise-the-age-will-rise-again/
These are complicated issues, but the failure to raise the age is probably based on our most common denominator – money. Our democracy might lead to a chorus of voices saying “raise the age,” but political pandering might lead politicians to decide it is way too expensive to find a solution for putting 17-year olds back into an already crowded Juvenile Justice System especially when some voters say “not with my dollars.” It will be costly, but many suggest it saves all in the long run. Texas has proven it can be tough on crime, now let’s see if it’s time for voters to insist on being smart.
Know Texas Law and know where your representatives stand on the issues.
by Ann Johnson.
Ann Johnson is a Nationally recognized expert in human trafficking, sexual abuse and exploitation and an attorney representing adults and children in private practice at Johnson Martinez LLC. www.JohnsonMartinez.com.