During the 2006 elections, Texas Attorney General Greg Abbott ran television ads touting the capture of the state's 500th Internet child predator. Shortly after elected lawmakers convened in 2007 they went to work on a bill that would impose the death penalty for the most serious child sex offenders. Less than a month later Governor Rick Perry, Greg Abbott and the entire Texas legislature had to take a long look in the mirror when it was revealed that two high ranking state employees had been molesting young boys for years.
From 2003 to 2005, complaints of inappropriate sexual behavior began piling up against John Paul Hernandez and Ray E. Brookins. But rather than spark an immediate investigation, the complaints were largely ignored while both men rose to positions of authority in the Texas Youth Commission (TYC), the state?s juvenile justice agency.
John Paul Hernandez was the principal of the West Texas State School, a facility for youthful offenders in Pyote, Texas. Reports indicate that Hernandez used offers of candy, cake and educational assistance as enticements to lure boys into sexual encounters.
Ray Brookins, an administrator at the school, had gone so far as to have a 16-year-old boy live with him in his home on the West Texas campus.
Reports from youth and staff over the two-year period expressed everything from concern about the two men spending excessive amounts of time alone with juveniles to specific charges of sexual contact. Yet state officials consistently ignored the complaints, and Brookins was actually recommended by his supervisor and eventually promoted to assistant superintendent of the West Texas facility.
Online Antics, Offline Misconduct
'If you ask me, I'll say ... if it feels good, just do it!" Those are the words posted on the MySpace.com page of "XXXRayvijon," aka Ray Brookins. The assistant superintendent of the West Texas State School said he was into "making good love to the one I'm with," and practicing safe sex "cause I love me."
When Brookins was visited at his home by Texas Ranger Brian Burzynski, the "one he was with" was a 16-year-old boy. Bursynski found a variety of pornographic videos, catalogs and magazines at the residence. Three of the magazines were under the boy's bed; the boy was not a resident of the school. Brookins told the Texas Ranger and the Ward County investigator who was with him that the boy's mother had left the boy with him while she was tending her mother, who was ill.
Burzynski warned Brookins that Child Protective Services (CPS) would be notified since the superintendent couldn't keep track of his "vast quantity of pornographic materials." But by the time CPS officials arrived at Brookin's residence, the boy was "visiting relatives elsewhere."
Although when questioned the boy denied any sexual intimacy, the boy's father said he detected a lot of personal interest by Brookins in his son. Brookins claimed that the boy was simply staying with him until his father could come from South Carolina to take him home, and denied molesting the youth.
However, an 18-year-old who was interviewed by Burzynski said he and Brookins had engaged in oral sex, and described how Brookins instructed him in a variety of sexual activities. Brookins admitted that he had taught the 18-year-old how to masturbate, how to use pornographic material when masturbating, and how to use sex toys.
Nor was Brookins a stranger to online pornography. During his tenure at the TYC facility in San Saba, Texas, Brookins received a reprimand, 90 days employment probation and a transfer after explicit pictures were found on his work computer. It was that transfer that landed him at the boy's school in Pyote.
Before Brookins began working for the TYC he had convictions for passing hot checks and multiple moving violations. After he began his career as a prison guard in 1985, he received major disciplinary violations for failing to report major uses of force on prisoners, failure to perform random drug tests on prisoners, failure to file required reports, and once for wrecking the warden's car. Five adult prisoners accused Brookins of engaging in sex while he was a captain at the Cotulla Unit in 1995; he failed two polygraph tests, but the complaints against him were dismissed.
"This guy should never have been working for TYC. Period," stated Sen. John Whitmire, chairman of the Senate Criminal Justice Committee.
Both Brookins and Hernandez were accused repeatedly by teachers of having late night parties with the teenagers under their care. Burzynski reported that the two would often wake boys up in the middle of the night and then lock themselves in offices and classrooms for hours with the lights off.
"We should have fired [Brookins] in 2001, after we found porno on his computer," said TYC spokesman Tim Savoy. "That should have been a red flag."
But the bigger issue that would soon plague state lawmakers is why Brookins and Hernandez were not prosecuted for over two years. When the scandal finally came to light in mid-February 2007, Hernandez was working as head of a charter school in Midland, Texas.
Who Knew, and When?
What is most unsettling about the TYC sex scandal is the number of people who actually knew or had at least been told what was happening but did nothing about the problem.
Texas Ranger Bruzynski's investigation revealed that between 2001 and 2005 the superintendent of the West Texas State School, Chip Harrison, had received numerous complaints about Brookins and Hernandez. In Harrison's defense, many of the complaints were vague and none actually complained of sexual misconduct. In retrospect it is apparent that Brookins and Hernandez used their authority to alter the complaints or discard them altogether, to cover up for each other. Harrison?s only effort to address the problem was to ask both men not to spend so much time alone with the boys.
At one point the complaints were so numerous that TYC headquarters opened its own investigation into Brookins and Hernandez, but their efforts came up empty. They concluded that the complaints didn?t "suggest sexual abuse or violation of policy." The report found that staff witnesses contradicted each other, and that Brookins' and Hernandez's behavior was open to interpretation.
Lydia Barnard, the former superintendent of the San Saba facility who had initially hired Brookins, was the official who reprimanded him when pornography was found on his work computer. When complaints began to cross her desk, she, like Harrison, simply asked Brookins not to spend as much time alone with youths at the facility. Barnard was also responsible for Brookins' promotion to acting superintendent when Harrison took a medical leave of absence.
"How did they miss that?" asked Jim Hurley, spokesman for the TYC. One caseworker, frustrated at not being able to keep Brookins away from children at the school, e-mailed TYC executive director Dwight Harris. No action was taken.
"We're going to get to the bottom of this," declared Sen. Whitmire. "There are no untouchables."
"I want the problem solved," added Lt. Gov. David Dewhurst as he simultaneously called for the entire board of commissioners over the TYC to be fired.
"We gotta come in and clean house," echoed Sen. Juan "Chuy" Hinojosa. It was one of Hinojosa's aides who was key in exposing the TYC sexual abuse cover-up.
Rather than face the wrath of the legislature, TYC Director Dwight Harris resigned. His replacement, Neil Nichols, also eventually resigned but not before he was required to testify before the state senate.
Nichols withstood the senate investigation with remarkable composure.
"There's no question we missed a lot of keys," he admitted. However, Nichols pointed out that TYC could not be held responsible for failing to prosecute Brookins and Hernandez once they had been forced to resign. "The decision to prosecute is not ours to make," he said.
A "Straight Arrow" Steps In
Jay Kimbrough, appointed by Governor Perry as a special master to investigate the system-wide problems in the TYC, arrived at the West Texas State School in March 2007 on his Harley, two hours early, and ordered a surprised TYC guard to show him "where the blind spots are."
Detailing everything from surveillance cameras and staff shortages to paperwork and classification issues, Kimbrough, a former Marine, informed the legislators that as many as 60 to 90 percent of juveniles offenders had had their original sentences extended for institutional infractions, often without proper documentation.
Understanding the implications of Kimbrough's report, Rep. Jerry Madden, chairman of the House Corrections Committee, explained, "I think ultimately we're talking about [releasing] a fourth of those in custody, maybe more."
Not surprisingly, that statement put many legislators in panic mode.
"The last time we started releasing people early, we ended up with Kenneth Allen McDuff," said Rep. Jim Dunham.
McDuff was an adult state prisoner who purchased his parole and then murdered three more people after his release. He is also the reason why parole is virtually non-existent in the Texas Dept. of Criminal Justice (TDCJ).
By March 29, Kimbrough had looked under almost every rock inside the TYC. He ordered the firings of 111 employees with felony convictions and required all top officials to reapply for their jobs. At the end of the day the legislature stopped bickering long enough to overwhelmingly approve him as conservator over the TYC. In a vote of 29-1, senators sang the praises of their new Harley-riding, no-nonsense watchdog over the state's juvenile justice system.
"He has always responded to the call of his country or his state," lauded Sen. Steve Ogden. "Jay Kimbrough is a good man, a straight arrow."
Said Sen. Whitmire, "I thought it was going to be another political appointment. But I've found [Mr. Kimbrough] ... gets things done, no ifs, ands or buts."
The only dissenting vote came from Sen. Eliot Shapleigh, who noted that Kimbrough previously had been employed by the governor and thus might be reluctant to expose discrepancies about state officials who worked under his former boss.
But Sen. Whitmire quickly jumped to Kimbrough's defense. "Why are you suggesting that everyone in every organization is going to know about the [West Texas] event? This gentleman was an employee. Why [would you put] any more responsibility on him than you would on anybody else?"
Ironically, the senator seemed to have forgotten that that was what he and his colleagues had done to TYC Director Neil Nichols and others before they were confronted with the fact that legislators had also ignored information about improprieties in the TYC two years earlier.
As for Kimbrough, he sat comfortably aloof from the in-fighting. The Vietnam veteran and Purple Heart recipient called Sen. Shapleigh's grilling "just another day in the bush."
"Some days they shoot you, some days they miss you," he said.
Suspensions, Resignations and Firings
It wasn't long before the TYC began to sound like a Donald Trump reality show. On March 1, 2007, Governor Perry demoted TYC Board Chairman Pete Alfaro just before Alfaro resigned. By law the governor cannot fire a state board member; he can only demote the chairman.
"The incidents at West Texas, what happened there is terrible, no board member will disagree," said Alfaro. "But we followed our procedures that we had."
On March 9, 2007 there were three more administrative casualties. TYC's chief internal investigator, Ray Worsham, was suspended for redacting documents that contained incriminating information. Sylvia Machado, superintendent of TYC's Ayers halfway house in San Antonio, was suspended after she was caught shredding documents. She was arrested and held until she posted a $20,000 bond.
David Andrew Lewis was fired from the Coke County Juvenile Justice Center (CCJJC) after it was discovered he was a convicted sex offender "he was even listed on the state's public sex offender registry." CCJJC is a private juvenile prison owned by the Florida-based GEO Group. PLN will report on issues related to the CCJJC in a future issue; the facility, which was the subject of a scathing report, was closed by the state on October 1, 2007.
At a joint House-Senate legislative hearing on March 8, legislators addressed TYC's board members, who had done nothing to address the allegations of misconduct by TYC staff over the years.
"You're responsible for 5,000 children that are incarcerated, and they're God's children, "fumed Rep. Jim McReynolds." I read [reports] last night until I wanted to vomit," he said. "The system is broken. You're part of the broken system."
Less than a week later the Senate Criminal Justice Committee defied Gov. Perry's wishes and unanimously agreed to fire the entire panel of TYC's board members. On March 16 the board resigned in the wake of a "no confidence" vote by the full senate.
On March 20 there were two more resignations, as TYC Deputy Executive Director Linda Selness Reyes and general counsel Neil Nichols stepped down.
"You could classify them as forced resignations," said Jim Burley, spokesman for Jay Kimbrough. "We do know we need a change.... They're at the top of the food chain."
April 4 brought even more staff changes, as forty TYC employees with felony records were fired. Over half of those fired had received deferred adjudications on their criminal charges. Twenty-five of the terminated staff members were guards.
By April 18, sixty-six TYC employees had been identified as convicted felons. All were given a 10-day severance package. Their convictions included murder, attempted murder, sexual assault, aggravated assault with a deadly weapon, burglary, engaging in organized crime, and car theft.
A TYC whistleblower with a felony record wasn't spared. Anthony Mikulastik, a case manager, had brought allegations of sexual abuse to the attention of his supervisors in 2003 but was rebuffed. He was fired on May 7, 2007, six days after he spoke to the media. He had a felony conviction for burglary in 1972 that had been disclosed to the TYC when he was hired. He claimed retaliation.
However, the most noteworthy firing was the termination of TYC supervisor Lydia Barnard. Barnard was initially demoted for possessing and conveying alcohol in a state vehicle; she was also accused of giving family members access to her TYC computer.
Further, while she was director of juvenile corrections, she had recommended that Brookins be promoted to superintendent of the West Texas State School, even after she had reprimanded him for having pornography on his work computer. It was that decision that led to her dismissal. "I can tell you I've been made a scapegoat, by TYC, by legislators, by newspapers," she complained.
As of May 14, 2007, a total of 93 TYC employees had been suspended, terminated or forced to retire. Then the arrests began.
Juvenile Justice Workers Face Justice
With the can of worms open it wasn't long before TYC guards and supervisors started landing in jail. James Allen Sullivan had been investigated for sexually abusing young girls at the Ron Jackson School in Brownwood, Texas as early as 2003. Smitten by a 16-year-old, he started giving her extra privileges, candy and even drugs for sex.
Sullivan would flirt with the girl and "tell her she was sexy."
LaQuette Day was at least one of Sullivan's co-workers who was shocked by the guard's actions. But Day said her attempts to report Sullivan's behavior were ignored and even resulted in retaliation.
The 16-year-old girl at first denied a relationship but eventually admitted to having sex with Sullivan at least ten times in a supply closet. "Basically, it was a favor for favor, so I did it to satisfy his need," she said.
Sullivan was eventually dismissed when it was confirmed that he had been in relationships with three other girls. While the incidents were reported to local authorities, no charges were filed until the story broke about Brookins and Hernandez.
Even then Sullivan's case took a strange twist, when the grand jury no-billed his case on April 9, 2007 due to lack of evidence. The ex-guard's victory was short-lived, however, as an aide from Sen. Hinojosa's office noticed that the grand jury had not been shown tapes of Sullivan and the girl going into a supply closet several times. The missing tapes turned up in the office of former TYC chief investigator Ray Worsham, who had been fired the month before following his suspension.
"I don't know what type of filing system they have, but this is pretty symptomatic of the problems at TYC," said Sen. Hinojosa. "It's real sloppy work on the part of the old administration."
The grand jury reviewed the video footage, and on May 10, 2007 Sullivan was named in a 19-count indictment and arrested. He posted a $15,000 bond and was released.
Barry Ransberger also worked at the Ron Jackson Unit. On March 14, 2007, he was arrested on charges of sexually assaulting an adult prisoner while a guard at the Middleton prison unit in 2005. He had been forced to resign from Middleton due to the incident, but while under investigation still managed to land a job with the TYC.
"It's very disturbing that if he was being investigated by [the Texas Department of Criminal Justice], he was somehow able to get a job at TYC," said spokesman Jim Hurley. Dusty Ogle, a third guard at the Ron Jackson Unit, was arrested on March 15, 2007 for assaulting a juvenile female prisoner nine days earlier and then trying to cover it up. Ogle was charged with aggravated assault to commit serious bodily injury, tampering with government records and official oppression. He was released on $30,000 bond, later arrested for suspicion of tampering with a witness, and posted an additional $7,500 bond.
As of March 16, 2007, active internal TYC investigations included 228 related to suspicion of sexual misconduct, 67 allegations of staff assaulting prisoners, 22 "inappropriate relationships" between staff and prisoners, 12 civil rights violations, and 8 involving deficient medical care.
On March 23, Jerome Parsee, superintendent of TYC's Marlin facility, was arrested for lying to Texas Rangers about sexual assault reports filed at the unit. The Rangers came to his office at about l0:30 in the morning and took him into custody; he was charged with a Class B misdemeanor for filing a false report. If found guilty he faces up to six months in jail and a $2,000 fine.
A warrant was issued on April 4, 2007 for the arrest of TYC employee Shannon Griffin, who was accused of having an improper relationship with one of the boys in her custody. Griffin's case illuminated an unsettling fact about problems within the TYC: Approximately two-thirds of the agency's employees who were disciplined for having inappropriate sexual contact with juvenile offenders were women.
A study that tracked data back to 2000 revealed that only five of those women were convicted. All received probation. The report also noted the double standard in the way cases against female employees were handled.
For example, few of the charges against the women even contained the word "assault." But under Texas law, adult women who have sex with imprisoned minors are not only guilty of sexual assault but also are in violation of laws that prohibit relationships between guards and prisoners.
TYC guard Andrel Waddle was arrested in April 2007 on charges of improper sexual activity with a person in custody. Waddle was an employee at the Willoughby Halfway House in Fort Worth, a facility for wayward girls, when the incident occurred. He had taken several girls on an outing to a park in the city of Penbrook when witnesses say he remained in a van with three of the girls and engaged in illegal sexual activity with one of them.
In a welcome change, TYC guard Henry Ruben Firth, Jr., 29, was not arrested on sex-related charges. Instead he was charged with one count of possession of a prohibited substance in a correctional facility after he provided marijuana to a prisoner. He was released on $15,000 bond.
Finally, on April 11, 2007, the two men whose misconduct instigated the widespread investigation into the TYC scandal were finally indicted. John Paul Hernandez was charged with one count of sexual assault, nine counts of improper sexual activity with a person in custody and nine counts of improper relationship with a student. The charges involved six youths, ages 16 to 19. He was released on May 10 after his bond was reduced from $650,000 to $95,000.
Ray Brookins, charged with two counts of having a relationship with a person in state custody, a state jail felony, was released on a $100,000 personal recognizance bond.
One irony in the Brookins and Hernandez scandal is that Marc Slattery, a volunteer tutor at the West Texas State School who provided a tip that set the TYC sexual abuse investigation in motion, had himself been arrested for sexual assault in 1986. He had pleaded guilty to a lesser charge of simple assault and was placed on probation. The TYC has since revoked his volunteer status.
Another irony involves TYC whistleblower Billy Hollis, who was formally reprimanded in 2004 after he tried to alert authorities about improprieties related to Brookins' conduct. Hollis has since been promoted to assistant superintendent at the West Texas State School, the position that Brookins held, and works in Brookins' former office.
For Want of Prosecution
Brookins and Hernandez dodged prosecution for two years despite allegations that they were engaging in sexual misconduct with youths under their supervision. Texas Ranger Burzynski?s investigation caused enough concern within the TYC to force both men from their jobs long before they were arrested. But months turned into years as Ward County District Attorney Randall Reynolds failed to return an indictment on either former TYC official. He never even presented the evidence to a grand jury.
County attorney Kevin Acker, who prosecutes misdemeanor and juvenile cases, offered to assist Reynolds with the prosecution. Reynolds never enlisted Acker's help.
"I had 10 witnesses [against Brookins and Hernandez], and I've never been able to figure out if any of them were called" Acker said.
Burzynski grew so frustrated at Reynold's indifference that he enlisted the assistance of federal authorities. Reynolds was "a very weak prosecutor," Burzynski told federal agents, and said he was "losing hope" that Reynolds would file charges before the statute of limitations ran out.
Burzynski had compiled a 229-page report on the abuses he found at the West Texas State School, and the TYC confirmed more than 2,000 cases of staff abusing prisoners from January 2003 to December 2006. But in the end, the feds declined to prosecute.
Federal agents told Burzynski that Brookins and Hernandez "could only be charged with misdemeanors under federal law. Federal law requires "bodily injury" to make a violation of civil rights a felony."
While Burzynski was disappointed, some federal legislators were outraged.
"There is no reason why a vigorous Department of Justice could not have gone in with a broom and cleaned up the TYC," said U.S. Rep. Sheila Jackson Lee, who sits on the House Judiciary Committee. "They are just not interested, and that is a tragedy."
Amarillo attorney Jeff Blackburn called civil rights prosecutions during the Bush administration "a complete joke" Some even speculated that former Attorney General Albert Gonzales was reluctant to prosecute the politically explosive TYC scandal because both he and Bush hail from Texas.
Alison Brock, a former chief of staff for state Rep. Sylvester Turner, personally filed 25 complaints of abuse regarding TYC's Crockett State School with the federal Civil Rights Division. "One of the things I continued to hear [from federal authorities] was that we need more complaints so we can show that it's systemic," she said. "And at some point I just thought, well, what do you need? A tsunami?" No civil rights investigation followed.
But federal authorities were not the only ones to drop the ball. The case also languished in the office of state Attorney General Greg Abbott for two years without action. Abbott said the matter was out of his jurisdiction; that he could not become involved unless District Attorney Reynolds requested assistance.
Of course there was nothing to stop the Attorney General from calling Reynolds to remind him that assistance was available and nudge him in that direction. When Burzynski's persistence eventually put the TYC sex scandal in the media spotlight, legislators questioned the attorney general?s office about the lack of prosecution.
"It's an issue of jurisdiction," sputtered Assistant Attorney General Eric Nichols. "It was clear by that [Texas Ranger] communication that the local prosecutor had exclusive jurisdiction over that matter."
Still,"if you don't have legal authority, you don't just let it lay" retorted state Rep. Jim Dunnam, who is also an attorney.
it's the idea that these kids and their parents are less believable, and in a way require less protection from the state," said Isela Gutierrez, coordinator of the Texas Coalition Advocating Justice for Juveniles.
"When TYC representatives testified in their suits before these legislative committees, they were seen as more credible than these parents, who were low-income, sometimes had criminal backgrounds and often showed up in jeans," she observed.
Of course lawmakers, judges and prosecutors would quickly deny the notion that justice is less important for those who wear jeans. But there is no disputing the fact that nearly a hundred TYC workers were fired, dozens more have been arrested and hundreds of children languished needlessly behind bars because no one cared enough to listen, despite numerous complaints having been filed.
Nor is there any question that for want of prosecution by indifferent government officials, the two men responsible for years of sexual abuse of juveniles in state custody almost walked away scot-free. The criminal cases against Brookins and Hernandez are still pending; both have pleaded not guilty.
More Abuse Allegations Roll In
Investigators tallied a total of over 750 complaints of sexual abuse of juvenile offenders from January 2000 to February 2007. The complaints described everything from flirting to rape, and came from all 13 TYC facilities.
Joseph Galloway told Texas Rangers that in 2003, while he was incarcerated at the Giddings State School, guards put him in a cell with another boy who was older, bigger and stronger. The other boy was yelling to a guard, "I want some ass."
As Joseph described the incident, "He was hitting me on the back of the head. He was beating the hell out of me. I allowed him to sodomize me, because I couldn't fight him anymore" Joseph was 15 at the time.
On March 28, 2007, Joseph's mother testified before the National Prison Rape Elimination Commission and said she went to the administration at the Giddings facility to complain about her son's treatment but was rebuffed by a caseworker. "We'll handle this internally, our own way," she was told.
Ms. Galloway said her son was also severely beaten at the Marlin Unit where juvenile prisoners are processed into the system. According to her testimony, Joseph was beaten and had his nose broken not long after he arrived.
Joseph testified about an incident in which he was forced to submit to oral sex with a female guard. He also told the Commission that the guard who forced him into the cell with the prisoner who raped him had committed suicide two weeks later. A records check verified that a guard at the unit did commit suicide within that time frame.
Joseph, who doctors suspect is bipolar, received more than 300 disciplinary write-ups during his four-year stay in juvenile facilities.
Those infractions, which extended his nine-month sentence, included such offenses as sitting in the wrong place in church, daydreaming, and falling asleep even though he was heavily medicated.
On April 10, 2007, Joseph and four other plaintiffs filed a class action lawsuit in federal court against the TYC for failing to protect them while they were in custody. See: Galloway v. Delgado, USDC WD TX, Case No. 1:07-cv-00276-LY. They are represented by the Texas Civil Rights Project.
Genger Galloway, Joseph's mother, is calling for a "complete reformation" of the TYC. "It doesn't matter what these kids did to get inside,? she said. "They are still kids with civil rights and they deserve justice."
"I don't care if I get $2 out of this lawsuit," added Joseph. "I just want TYC to be changed forever."
Alice Smith wants a change in the way TYC is run, too. Smith said her son, Erik Rodriguez, was severely beaten by other juveniles after guards let the attackers into Erik's room. Two of the guards were fired following an investigation.
"It's not an isolated incident," said Smith's attorney, James Myart. "It's endemic to the entire system."
Rodriguez had been locked up for over 19 months on a 9-month sentence. The reason for his extended stay was because he was failing a math course and not doing well in group therapy. "Instead of rehabilitating him, it's making him angrier and angrier," said his mother. In September 2007 the TYC agreed to pay Rodriguez $30,000 to settle his claim regarding the in-custody beating.
Another lawsuit was filed in November 2007 by a former juvenile offender, now 22, who claimed she was sexually assaulted by a guard at the Ron Jackson Unit. Identified only as Jane Doe, the woman said she was abused by a guard who threatened her with disciplinary charges if she didn't submit to his sexual demands. The guard was reportedly demoted and transferred to a different TYC facility.
A third suit, seeking $5 million in damages, was filed by Ricardo Luna, who said his son was wrongly imprisoned, beaten by TYC guards and groped by a female employee. Ricky Luna, Jr. ended up in the juvenile justice system after stealing a bicycle and hitting a school hall monitor.
Chris Gann is another former TYC offender who suffered abuse by guards.
Gann said he was heavily medicated, assaulted, emotionally abused and subjected to unwelcome sexual advances by staff during his four-year incarceration, including by Ray Brookins. He described strip searches in which employees would touch the prisoners' genitals. "I don't think TYC did anything to help me," he said in a gross understatement.
In mid-April 2007, Debra Flores filed charges against the TYC after a guard chopped off her son's finger. Flores' 17-year-old son was attempting to hand his food tray back to a guard when the guard "slammed the door down on his finger and amputated it," said attorney Charles Dunn.
The complaint goes on to accuse the guards of taking an unreasonable amount of time to respond to the incident, which made it impossible for doctors to reattach the boy's finger. "There is a video that they won't release to us but hopefully we'll get it as the case proceeds and that shows about a 30-minute lapse between the time his finger was amputated and when the guards came to give him assistance," said Dunn. "It's ridiculous and something needs to be done about it."
The feelings of many parents whose children were and continue to be abused while in TYC custody can best be summed up in a statement by Jon Halt, whose 16-year-old son was sexually abused by another TYC prisoner. "They still treat kids like dirt," he said.
On May 11, 2007, as part of a legislative reform package that included more training for guards and a stronger internal investigation division, lawmakers appointed Will Harrell as the TYC's first ombudsman. Harrell was previously the executive director of the Texas chapter of the American Civil Liberties Union (ACLU), and had been instrumental in aiding Jay Kimbrough and the legislature in investigating the TYC scandal.
In his assessment of the "chaotic and dangerous" atmosphere of the Evins Regional Juvenile Center, Harrell said "Evins is merely a case study. The problems you see there are the same you'll find throughout a saturated system."
With resolve in his voice, Harrell announced that he would be "the advocate for the children and their families. I answer to the kids, their parents and the state of Texas. Not TYC."
Unfortunately, though, allegations of physical and sexual abuse are not the only issues facing juvenile offenders in Texas; the TYC has more entrenched, systemic problems that an ombudsman may not be able to remedy.
Pepper Spray Trumps Education, Rehabilitation
On August 2, 2007, TYC acting executive director Dimitria D. Pope issued a directive allowing the expanded use of chemical agents against juvenile prisoners, despite a state law that restricted their use (37 Tex. Admin.
Code § 97.23(p)(1)(A)). The directive permitted the use of pepper spray on juveniles as a first resort, before using less severe interventions.
"Courts have found the use of OC (pepper spray) to deal with merely uncooperative or unresponsive kids violates the Constitution," said TYC ombudsman Will Harrell, who noted a federal court agreement had limited the use of chemical agents on juvenile offenders more than 20 years ago.
"Too many people were getting hurt before," countered TYC spokesman Hurley. "We'll see if this [more pepper spraying of juveniles] reduces the injuries"
Advocates for youths in TYC custody thought otherwise; if TYC staff couldn't be trusted not to sexually abuse prisoners, how could they be expected not to abuse the discretionary use of pepper spray?" It's the high-tech equivalent of an old-fashioned butt kicking" said Isela Gutierrez, a member of the Texas Criminal Justice Coalition.
Texas Appleseed, a justice advocacy group, and Advocacy, Inc., an Austin-based organization that promotes the rights of people with disabilities, went to court in September 2007 to force the TYC to return to its previous policy, which allowed the use of pepper spray only as a last resort. They claimed the recently-implemented TYC directive had circumvented rule-making procedures required under the state?s Administrative Procedure Act.
The TYC agreed to settle the suit and rescind the pepper spray directive on September 28, 2007. However, according to Texas Appleseed and Advocacy, Inc., less than a month later the agency had failed to follow its agreement and continued the widespread use of pepper spray on juvenile offenders. A motion to enforce the settlement was filed on October 22, 2007. See: M.P. v. Texas Youth Commission, Travis County District Court (TX), Case No. D-1-GN-07-002998.
Meanwhile, the TYC is seeking to implement its rule relaxing restrictions on the use of pepper spray through the Administrative Procedure Act and has filed a new use of force policy in the Texas Register, which is the first step for adopting the new rule. In the interim, the TYC has agreed, again, to stop using pepper spray as a first resort on unruly juvenile offenders. Incidents of pepper spray use on prisoners in TYC custody skyrocketed from 196 in 2006 to 1,220 through October 2007.
Rather than spending staff time and resources on implementing policies to expand the use of pepper spray, the TYC would be better off trying to address the many criticisms that have been levied against the agency " which, beyond sexual abuse and cover-ups, include accusations that the TCY's education and rehabilitative programs are a dismal failure.
According to a November 2007 investigative report by the Dallas Morning News, juveniles held in solitary confinement received a crossword puzzle or a single page of math problems as their educational coursework; offenders at different grade levels were taught in the same classrooms, and one mentally ill youth who read at a second-grade level received a high school diploma.
"As a taxpayer, I should be concerned that kids who are not well-educated are much more likely ... to be dependant on society, either as homeless and unemployed or as a resident of the Department of Corrections," stated Peter Leone, a juvenile justice expert.
At one TYC facility, juveniles attended classes for just three hours in the morning; other complaints cited an over-reliance on self-instruction and computer-based programs rather than teaching.
The agency's substance abuse and other rehabilitative programs fared little better. In fact, offenders who graduated from the TYC's drug treatment program had higher recidivism rates than those who didn't participate in the program. A more general rehabilitative program called "Resocialization" was also shown to be ineffective, and was used by staff to extend prisoners' sentences.
"You had a number of Ph.D.-level white females who sat and wrote programming and a concept," said TYC acting director Dimitria Pope. "In theory, it looked great. But you didn't have anyone who tested this on the population." A new rehabilitative program titled CoNEXTions is in the works.
Lawmakers Condemn Abuse but Resist Releases
By early April 2007, TYC conservator Jay Kimbrough announced that the agency was ready to release almost 500 prisoners who were already eligible for parole. "I'm not going to hold somebody behind a 12-foot barbed wire fence if they're eligible to be out," he said. "We'll be taking several hundred youth out of that universe."
But before Kimbrough made that announcement he managed to rid the TYC of a political hot potato. On March 31 he expedited the release of Shaquanda Cotton, who had been incarcerated in TYC facilities for almost a year.
She was serving a seven-year sentence for pushing a hall monitor at the Paris High School in March 2006. Shaquanda, who is black, achieved national notoriety after the same Paris, Texas judge over her case sentenced a white female juvenile offender to probation for burning down her parent's house.
The disparity in the sentences prompted belated racial demonstrations and outcries from various civil rights activists and organizations. Shaquanda had no previous criminal history, and the hall monitor she pushed was not injured. Some sources say the monitor had provoked her.
Once remanded to the TYC, Shaquanda received disciplinary infractions when she was caught with an extra pair of socks and a cup. Those incidents resulted in her being denied parole. Releasing Shaquanda "was the right thing to do." said attorney Sharon Reynerson with the Lone Star Legal Aid Association. "The sentence was too harsh for the crime and she's been there too long. It's having an adverse psychological effect on her".
Sadly, the unnamed white teenage girl who received probation, whose sentence was contrasted with Shaquanda's, was sexually assaulted by a TYC guard after she violated probation and was taken into custody. The guard accused of sexually abusing her, Jaime Segura, was indicted in August 2007 and charged with one count of sexual assault, three counts of indecency with a child, four counts of improper sexual activity with a person in custody and four counts of official oppression.
The girl's mother said her daughter tried to kill herself while incarcerated, and had another six months added to her sentence when she knocked down a guard who intervened to stop the suicide attempt.
Regardless, it didn't take long for Texas lawmakers to get over their outrage at the abuse of children in TYC custody. As soon as August 5, 2007, just six months after the scandal came to light, some senators were already demanding tougher guidelines for paroling juvenile offenders.
"It seems unfathomable that [children who commit murder] are getting out in three years" said Sen. Tommy Williams. However, TYC spokesman Jim Hurley had addressed that concern weeks earlier by saying, "There was never any danger of putting kids on the street who shouldn't have been there"
Of the 400-plus young offenders who were initially released, almost 200 had been imprisoned for probation violations, 68 failed to comply with ordered treatment programs, 30 had assault charges, 25 had burglary charges, 25 were convicted of marijuana possession, 22 for absconding, 22 for evading arrest, 19 for unauthorized use of a vehicle, 18 for theft, 17 for possession of a controlled substance, and 16 had skipped school. There was not a single murderer in the bunch.
But Sen. William's fears were soon realized and the TYC was back in crisis mode. Despite the assurance by TYC spokesman Hurley that no dangerous juveniles would be released, the system succumbed to pressure to create additional bedspace. As of July 2007 over 2,000 youths had been freed, many of them violent offenders. Pressure began building as many of those who were released committed more crimes and returned to the system.
Since the releases more than 400 juvenile parolees have been rearrested , 42 for violent crimes. Howard McJunkin is a prime example of why lawmakers are concerned. Released on July 7, McJunkin, 20, had been committed to TYC custody when he was 15 for raping an elderly woman.
Thirteen days after he was freed he was rearrested for the same type of crime. On July 22, 2007, McJunkin broke into the home of a 79-year-old woman and raped her.
Lawmakers blamed themselves for overlooking a loophole in the TYC parole consideration process. Under the current criteria, juvenile offenders are considered for release based on their behavior while incarcerated; parole board agents are prohibited from taking into consideration the seriousness of the offense when deciding whether or not a prisoner is eligible for parole.
Greg Cloud, of the Corsicana Police Department, had interviewed McJunkin immediately after he was released. "I remember thinking "What kind of rehabilitation could have taken place with this young man?" he said.
The answer is very little. Susan Moynahan, TYC's review officer, recently informed a Jefferson County juvenile court judge that many youths with sexual offenses are being freed without treatment. On July 30, Moynahan told the court that some juveniles who have waited over 18 months to participate in the TYC's sex offender treatment program were eventually released without enrolling in the program.
Predictably, the problem boils down to money. "It's the luck of the draw," said Mark Williams, who directs juvenile probation services for seven counties in West Texas. "If a kid gets in trouble at the beginning of the year, there probably will be money. If it's at the end of the year, there might not be."
The More Things Change ...
Whether or not they receive rehabilitative services or treatment, about 75 percent of TYC prisoners are released after serving less than half of their maximum sentence. This is because juveniles in Texas are subjected to indeterminate sentencing: They are committed for an indefinite period of time not to exceed their 21st birthday, and the amount of time they actually serve is basically at the whim of guards who issue disciplinary cases.
It is not enough that judges already have taken into account the minimum and maximum amounts of time a youth might spend in TYC custody when they impose sentences. Legislators are now demanding that the TYC parole board also assess the seriousness of the offense without consideration of institutional good behavior, in order to prevent high-profile cases such as that of Howard McJunkin.
No one has yet observed that it was this exact same practice of restricting parole releases in the adult corrections system that currently has the TDCJ crammed to overflowing once again, even after a multi-billion dollar building boom in the 1990s that made the state's prison system the second largest in the nation.
That same logic has also left Texas adult prisons "3,000 prison guards short," as staff hiring is unable to keep up with a burgeoning prison population. [See: PLN, August 2007, p.40]. Comparably, as of November 2007, almost 20 percent of TYC's guard positions were vacant.
Prisoner-on-prisoner assaults in TYC facilities are currently five times higher than the national average; the most common factor cited by investigators for this phenomenon is a shortage of guards. Studies also show that TYC guards are five times more likely to be injured on the job than those in adult Texas prisons, partly due to staffing vacancies.
But in typical Texas fashion, state lawmakers are focused only on keeping the doors to TYC facilities closed rather than drafting laws that result in reasonable sentences and manageable prison populations. Racist judges who sentence black girls to years in prison for minor offenses don't enter into the lawmakers' equation. Nor do TYC policies that extend the sentences of juvenile offenders for offenses such as having too many socks or falling asleep while medicated. That a 14-year-old boy who serves his entire TYC sentence for aggravated assault should have to spend another 30 years on parole strikes none of them as absurd.
"These are probably the least-wanted kids in this state, and I am glad someone is finally paying attention to them," said Isela Gutierrez, with the Texas Coalition Advocating Justice for Juveniles. "But I am also worried that the new people who come in may not be any different from the same old players who swept this [scandal] under the rug."
One of those new people, Richard Nedelkoff, a former Texas criminal justice director, was named as the TYC's new conservator in December 2007.
"My prediction is that in two years it's back to normal for the TYC," stated PLN editor Paul Wright. With "normal" being misconduct, abuse, corruption and cover-ups, that is. From the sound of things it won't take that long.
On January 10, 2008, Billy Humphrey, a top lieutenant of TYC acting director Dimitria Pope, became the latest official to resign in the face of the myriad, intractable problems affecting Texas' juvenile justice system. Two other TYC staff members had filed complaints against Humphrey, accusing him of retaliation after they raised concerns about the possible violation of juvenile offenders' rights.
But admittedly there have been improvements. "We probably don't have management raping kids now," remarked state Rep. Jerry Madden. Note, however, that he was careful to use the qualifier, "probably."
Sources: ABC13.com, Associated Press, Austin American Statesman, Dallas Morning News, examiner.com, Fort Worth Star Telegram, Houston Chronicle, International Herald Tribune, KSWO-TV, KVUE-TV, Los Angeles Times, New York Times, San Antonio Express-News, State Auditor's Office Report No. 07-022, Texoma Coalition, tuscaloosanews.com, USA Today, Waco Tribune-Herald, Washington Post, WJLA-TV, WorldNetDaily.com, KLTV.com, kxan.com, newsBaustin.com, pegasusnews.com, team4news.com, wishtv.com, texasobserver.org, themonitor.com, 590 KLBJ-AM, The Paris News, Odessa American
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