“The Dallas Morning News” recently reported more than 2,100 inmates serving time in Texas prisons began their sentences between the ages of 11 and 16. If Texas counted 17-year-olds as adults, the number would skyrocket to more than 8,000. Since the mid-90s, Texas has had two options for dealing with juveniles accused of serious, violent crimes – determinate sentencing or certification. Determinate sentencing involves sentencing a juvenile offender to a number of years served at the Texas Juvenile Justice Department (TJJD) with a possible transfer to prison. First-degree offenses carry a punishment up to 40 years, second-degree offenses up to 20 years and third-degree offenses up to 10 years. Determinate sentencing options can apply to juveniles as young as 10 years old. Certification involves certifying a youth to stand trial as an adult and results in adult probation or prison time. After a juvenile court waives its exclusive jurisdiction and certifies a youth to stand trial as an adult, the juvenile is out of the juvenile system and placed into the adult system where he can be sent directly to prison. These juveniles do not have access to any of the rehabilitative programs available to determinate sentenced youth. Juveniles can be certified as young as 14 years old.
To certify a youth to stand trial as an adult, the juvenile court must find that probable cause exists that the juvenile committed the offense and because of the seriousness of the offense alleged or the background of the juvenile, the welfare of the community requires criminal proceedings. To limit the juvenile court’s discretion in making this determination, the Supreme Court in Kent set out a series of factors for juvenile courts to consider. These factors are:
- whether the alleged offense was against person or property, with greater weight in favor of certification given to offenses against the person;
- the sophistication and maturity of the child;
- the record and previous history of the child; and
- 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.
The juvenile court may order a transfer on the strength of any combination of the criteria. Recently in Moon, the Texas Supreme Court held that a finding based on the seriousness of the offense alone is not enough for transfer.
When comparing certified youth to determinate sentenced juveniles, the findings are that the populations are comparable. Certification is not being used only for the most serious crimes and most dangerous juveniles. Aggravated robbery cases dominate both populations and together with sexual assault, account for more than 55 percent of cases in each category. Homicide only accounts for 17 percent of certification cases contrary to popular perception. While determinate sentence cases include almost exclusively violent crimes; non-violent offenses account for 10-15 percent of certification cases. Certified youth are not demonstrably more violent than youth retained in juvenile court. The background of both populations is similar as well. Roughly a quarter of each population has never been in trouble before. Almost 45 percent have had either no prior referrals or only one. Certified youth are not chronic, repeat offenders.
There are negative consequences for society when juveniles are certified to stand trial as adults. The Centers for Disease Control found that transferring juveniles to the adult system is counterproductive as a strategy for preventing or reducing violence. One study found that transferred juveniles who served at least a year in adult prison had a 100 percent greater risk of violent recidivism. In adult prisons and jails, juveniles face vastly higher risks of suicide, sexual assault and physical assault.
Harris County leads the state in the number of certifications. Dallas is second. Lawmakers’ overzealous reform efforts of the Texas Juvenile Justice Department increased the likelihood that young offenders would be sent to adult facilities. Lawmakers dropped the age for how long a youth could be sent to TJJD from 21 to 19. When that happened, prosecutors increased the numbers of certifications filed because the youth wouldn’t have enough time to benefit from the rehabilitation programs that TJJD offers. So prosecutors and judges are more likely to send the young offender straight to the adult system despite being contrary to society’s best interest.
Most certified juveniles will be released from prison while still young. Of those in prison, 58 percent received sentences of less than 10 years. However, certified juveniles do not have access to the rehabilitative programs they need for re-entry into society. Chronologically, inmates who grow up behind bars are adults when released, but having been denied access to education and rehabilitation programs makes them ill-prepared to take care of themselves or cope in the world.