Children’s Defense Fund President Marion Wright Edelman made headlines when she described the incarceration of increasing numbers of our young people as the “new apartheid” that poses a huge “threat to American unity and community.”1 Her analogy is dramatic, but not off the mark. Incarceration of juveniles in this country is reaching epidemic proportions and primarily impacting children of color born into families living at or below the poverty line. Nationally, one in three Black and one in six Latino boys born in 2001 are at risk of imprisonment during their lifetime.2 While boys are five times as likely to be incarcerated as girls, young women are being incarcerated in growing numbers.3

A number of nonprofit groups are responding to this challenge, locally and around the State, to reverse what Edelman has identified as the “growing criminalization of children at younger and younger ages... and the unjust treatment of minority youths and adults in the juvenile and adult criminal justice systems.”4 The Houston/Gulf Coast Chapter of the American Leadership Forum’s Class XXV, for example, recently released a report, Dismantling the Cradle to Prison Pipeline in Houston and Texas: A Study of Solutions, that focuses on prevention and early intervention. The report identifies the “many actors (that) channel many young people away from productive lives and toward prison—illiteracy, poverty, poor healthcare, domestic violence, mental health issues, teen pregnancy, unemployment, a shortage of positive role models, truancy and more.”5

Because so many factors cause juvenile incarceration, it is necessary to take a hard look at the multiple overlapping systems that affect the lives of children in order to dismantle the “cradle to prison” pipeline. Texas Appleseed, a nonprofit public interest law center, and its pro bono partners have reached the same conclusion while working to find systemic solutions to excessive juvenile incarceration. Texas Appleseed’s work to pass the reforms found in the 2001 Fair Defense Act revealed that juvenile defendants share the same roadblocks to obtaining adequate legal representation as do adults. Moreover, those with mental impairments face even greater challenges in a justice system ill-equipped to identify and address their special needs. While the work undertaken by Texas Appleseed after the Fair Defense reforms were enacted focused on issues that initially seemed to be unrelated to the incarceration of youth, it only reinforced the conclusion that reform of overlapping justice, education, child welfare and mental health systems is the key to solving the juvenile incarceration problem. Texas Appleseed advocates both improving coordination within and between the components of the juvenile justice system and reforming the areas of juvenile law within the education and child welfare social systems that funnel children into the criminal justice system.

Texas Youth Commission Reform—A Catalyst for Change
Public revelations of sexual abuse of incarcerated children at the Texas Youth Commission’s (“TYC’s”) West Texas State School in 2007 and the resulting lawsuits were a catalyst for major reforms to TYC and the juvenile justice system. Texas Appleseed played a direct role in changing practices within the TYC. Texas Appleseed filed suit in late 2007 to stop TYC’s over-reliance on pepper spray to discipline incarcerated youth with mental and emotional disabilities, and the attendant harmful effects of the practice on children. Appleseed’s subsequent negotiations with TYC produced policy changes that dramatically reduced the use of pepper spray. At the same time, with its pro bono partner Weil, Gotshal & Manges LLP pledging to bring its resources to bear at the courthouse if needed, Texas Appleseed successfully challenged the agency to end its practice of confining children in isolation for up to a year to control their behavior. Further negotiations to scale back use of short-term isolation and confinement resulted in a complete change in agency policy. Instead of simply punishing youth, the TYC staff now works to address their behavioral challenges constructively.

Whenever a crisis such as that within the TYC explodes into public view, one key question always surfaces: If TYC is the last stop on the road to adult prison, what can be done to prevent young people from entering TYC in the first place? Proposals to improve conditions within TYC that had been suggested for years began to be received by a wider, more receptive audience. State action in the wake of these abuses included an immediate change in TYC leadership, omnibus reform legislation (Senate Bill 103) and the Governor’s placing TYC under conservatorship.6 Reports on the TYC issued by both a Blue Ribbon Task Force and the Sunset Advisory Commission highlight the failure of institutions within the juvenile justice system to cooperate and meet the needs of children moving from one part of the system to another. Both reports recommended that the TYC and the Texas Juvenile Probation Commission increase coordination and ensure the seamless integration of juvenile justice systems.7

Increased Coordination in the Juvenile Justice System
Recommendations for increased coordination between TYC and juvenile probation are important. These systems are intertwined and manage the same populations. This fact was recognized in Texas when the 81st Legislature passed “sunset review” legislation earlier this year for both the TYC and the Texas Juvenile Probation Commission and required both agencies to coordinate activities and services, including strategic planning and sharing of data across youth agencies. State lawmakers also created the Coordinated Strategic Planning Committee for the purpose of fostering collaboration between TYC, the Texas Juvenile Probation Commission, and various other state agencies that are part of the juvenile justice system. These agencies include the Texas Department of Family and Protective Services, the Texas Department of State Health Services, the Texas Department of Aging and Disability Services, and the Texas Education Agency (“TEA”). These steps will be useful in promoting the level of coordinated effort required to reduce juvenile prison populations.

School Discipline: A Gateway to the Juvenile Justice System
The continuum of entry points into the pipeline leading to prison range from early school-based behavior problems that result in suspensions, expulsions, or Disciplinary Alternative Education Program (DAEP) placements, to more serious law breaking and probation violations which involving the juvenile justice system and, ultimately, criminal prosecution and incarceration by the adult penal system.
In Texas and throughout the nation, “zero tolerance” policies are removing thousands of juveniles from the classroom and sending them to in-school and out-of-school suspension and alternative education programs. For too many, involvement in the school disciplinary system leads to dropping out altogether and becomes a gateway to the criminal justice system. Since 2007, Texas Appleseed and its pro bono partners, consisting of more than 60 attorneys at nine different law firms and led by Vinson & Elkins LLP, have embarked on a multi-year project to study the “school-to-prison pipeline” in Texas and to develop evidence based policies and reforms to help reverse this disturbing trend.

The Texas Juvenile Probation Commission has noted that “the single most significant revision to juvenile law and procedure came in 1995 during the 74th Texas Legislature where juvenile justice reform was a major issue.”8 This reform included a legislative mandate requiring “the juvenile justice community and the education community [to] come together to help make safe schools a reality.” The result, however, was the criminalization of student misbehavior. A large number of school districts adopted a “zero tolerance” approach to discretionary discipline of students for an increasing number of minor non-violent offenses. According to Texas Appleseed’s 2007 report, Texas’ School-to-Prison Pipeline: Dropout to Incarceration, the 1995 “reforms” and “zero tolerance” school discipline policies have had a major, deleterious impact on the rate of school dropouts and juvenile involvement with the criminal justice system. Research has shown that the most important predictor of future involvement in the juvenile justice system is “a history of disciplinary referrals at school.”9 It is essential that changes in discretionary school discipline policies be a part of the reform of the juvenile justice system. One very useful change emerging from this spring’s legislative session is a new state requirement that school districts consider a student’s intent when making a disciplinary decision.

This fall, Texas Appleseed is releasing a second report that will include recommendations surrounding ticketing and arresting students on elementary, middle and high school campuses. Increased law enforcement presence in schools has resulted in a dramatic increase in misdemeanor ticketing and arrests of students for non-violent behavior, including curfew violations and “classroom disruption.” Class C misdemeanor tickets often carry a fine. Moreover, students who do not follow court orders resulting from ticketing at school may have an arrest warrant issued at the age of 17. The available data also indicates that the use of force by law enforcement officials against students is on the rise. This year alone, Texas media has reported a number of incidents where pepper spray and tasers have been used in schools. Any juvenile justice reform must address the wisdom and efficacy of policies that are increasingly moving student discipline from the schoolhouse to the courthouse.

A Shortage of Mental Health Services Feeds the Pipeline
Two years ago, Texas Appleseed reported that special education students, some of whom have emotional and mental disabilities, are overrepresented in discretionary disciplinary referrals at a rate almost twice that of their percentage in the overall student body.10 This disturbing finding underscores a larger problem: a shortage of school-based and community mental health services that channels too many young people with mental health issues into the juvenile justice system.

A recent New York Times article noted that there is a significant strain on state juvenile justice systems caused by the high percentage of offenders with mental health issues.11 Instead of receiving treatment, these children are being imprisoned. In Texas, children with serious mental health needs often do not receive treatment until they come into contact with the juvenile justice system.12 Texas ranks 48th in the nation on spending for mental health care,13 and in 2008, only 18 percent of Texas children eligible to receive mental health services actually received them.14 Up to 55 percent of young offenders who are supervised by the Texas Juvenile Probation Commission and the Texas Youth Commission have mental health needs.15 Any credible plan for dismantling the school-to-prison pipeline must address the need to provide children with mental health needs with early access to mental health services, both in schools and in the community.

Challenges Facing Children in Foster Care
Children in foster care in Texas have increased risks of falling through the cracks between the multiple systems which are charged with their care. Many of the more than 15,000 Texas children in Permanent Management Conservatorship (long-term foster care) can change schools more than a dozen times, making it difficult for them to succeed in school and places them at higher risk for dropping out and entering the criminal justice system. In addition, 80 percent of foster children in Texas have been diagnosed with one or more mental or behavioral disorders.16 As a result, students in foster care are almost twice as likely to be disciplined as other students, even though they are no more likely to be involved in serious behavioral incidents.17

Lack of coordination and data sharing between state agencies have made it difficult to track these children. For example, there is no way to determine if a child in the foster care system graduates from high school.18 Implementation of SB 939 during the 81st Legislative Session mandates the exchange of information between the Texas Department of Family and Protective Services and the Texas Education Agency, which should result in a clearer picture of what happens to foster children in the school system.

In addition, children who “age out” of the foster care system at age 18 are at greater risk for homelessness and poverty than those who are not involved in the child welfare system.19 Young adults who have aged out of foster care also report higher rates of symptoms of mental health disorders, GED completion instead of high school graduation, and involvement with the criminal justice system.20 This spring, Texas Appleseed and other child advocacy groups successfully supported passage of legislation to extend a court’s jurisdiction over certain young people past the age of 18 when necessary to ensure a successful transition to adulthood.

At the request of the Texas Supreme Court’s Permanent Judicial Commission for Children, Youth and Families, Texas Appleseed, lead pro bono partner Fulbright & Jaworski L.L.P., and pro bono partner McGinnis, Lochridge & Kilgore, L.L.P., are exploring ways in which the courts and the legal system can improve the lives of children once they leave the foster care system. Appleseed will release its final foster care report and recommendations next year.

Conclusion
The public systems that serve children in Texas have traditionally been regarded as separate and independent, with disparate statutory mandates, funding streams, and missions. They serve the same population in many cases. Despite the fact that children often are involved in more than one public system of care, many children still have critical unmet needs. Over the past 10 years, there has been a growing effort to document the links between the child welfare and juvenile justice systems and to better integrate them. More research and advocacy focuses on the school-to-prison pipeline issue and how the school disciplinary system is related to the juvenile justice system.

To achieve comprehensive reform that meets the needs of Texas children, it is important to understand and acknowledge how these systems interconnect. The “cradle to prison pipeline” can be dismantled by identifying points at which our education, foster care, justice, and child welfare policies and systems have become dysfunctional, and to take action in correcting the problems. The future of Texas depends upon it.

Ronald C. Lewis is Chair of Texas Appleseed and a member of the Houston/Gulf Coast Chapter of the American Leadership Forum Class XXV. He practices with Marshall & Lewis LLP.

Endnotes
1. Marion Wright Edelman, Children’s Defense Fund, Child
Watch column (February 6, 2009). 2. AMERICAN LEADERSHIP FORUM, DISMANTLING THE CRADLE TO PRISON PIPELINE IN HOUSTON AND TEXAS 4 (2009). 3. CHILDREN’S DEFENSE FUND, AMERICA’S CRADLE TO PRISON PIPELINE 69 (2007). 4. Marion Wright Edelman, supra note 1. 5. AMERICAN LEADERSHIP FORUM, supra note 2, at 3. 6. Conservatorship of TYC ended in October 2008. 7. The report of the Blue Ribbon Task Force is available at: http://alt.coxnewsweb.com/statesman/pdf/09/091407_pepperspray_report.pdf. The Sunset Advisory Commission staff reports on both the Juvenile Probation Commission and the Texas Youth Commission are available at: http://www.sunset.state.tx.us/81.htm#f81. 8. Texas Juvenile Probation Commission, The Texas Juvenile Justice System, at 6, available at http://www.tjpc.state.tx.us/about_us/juv_justice_overview.htm 9. TEXAS APPLESEED, TEXAS SCHOOL-TO-PRISON PIPELINE, DROPOUT TO INCARCERATION: THE IMPACT OF SCHOOL DISCIPLINE AND ZERO TOLERANCE 2 (2007). 10. Id. at 2. 11. Solomon Moore, Mentally Ill Offenders Strain Juvenile Justice System, N.Y. Times, Aug. 10, 2009, at A1. 12. TEXAS APPLESEED, CREATING FLEXIBILITY FROM THE BENCH: MEETING THE NEEDS OF JUVENILES WITH MENTAL IMPAIRMENTS 3 (2009). 13. Kaiser Family Foundation, State Health Facts, available at www.statehealthfacts.org/comparemaptable. 14. Texas Juvenile Probation Commission, supra note 8, at 1. 15. SUNSET ADVISORY COMMISSION, STAFF REPORT, TEXAS YOUTH COMMISSION, TEXAS JUVENILE PROBATION COMMISSION, OFFICE OF INDEPENDENT OMBUDSMAN 11 (2008). 16. Lynda E. Frost & Kelly J. Gober, Unintended Implications of Child Welfare Reform for Texas Foster Children’s Mental Health, presentation at the University of Oregon School of Law, Oregon Child Advocacy Project Conference (March 24-26, 2006). 17. CENTER FOR PUBLIC POLICY PRIORITIES, THE TEXAS SCHOOL DISCIPLINARY SYSTEM AND FOSTER CARE CHILDREN 3 (2009). 18. Id. at 1. 19. CASEY FAMILY PROGRAMS, IMPROVING FAMILY FOSTER CARE, FINDINGS FROM THE NORTHWEST FOSTER CARE ALUMNI STUDY 2 (2005). 20. CASEY FAMILY PROGRAMS, CASEY YOUNG ADULT SURVEY, FINDINGS OVER THREE YEARS, 10 (2008).