Local judges responsible for 1 in 5 children sent to state juvenile prison

October 21, 2018 GMT

Two Harris County judges accounted for more than one-fifth of all children sent to the state’s juvenile prisons last year, driving up the county’s Texas Juvenile Justice Department commitments even as those figures fall in the rest of the state.

The two courts — overseen by Judges Glenn Devlin and John Phillips — not only sent more teens to juvenile prison, but they also sent them younger and for less-serious offenses than the county’s third juvenile court, where Judge Mike Schneider presides. And, from all three courts, the kids sent to state lockups were almost all — about 96 percent — children of color.


The high incarceration numbers surfaced in a judicial grievance filed earlier this year against one of the three jurists, and experts said the data raise red flags regarding local judicial practices.

“This confirms to me that Houston is still the center of the pipeline to juvenile detention,” said Jay Jenkins, project attorney with the Texas Criminal Justice Coalition.

Since 2014, the number of kids the county sends to youth prisons has doubled, a shift some experts attributed to an increase in aggravated robberies, while others chalked it up to judicial preference. But whatever is behind it, the recent incarceration uptick comes amid a long-term decline coupled with a growing acknowledgment that state-run juvenile prisons can be costly and unsafe.

“The judges that overuse the state are making a true mistake,” said state Sen. John Whitmire, D-Houston, advocating instead for the use of probation or county-run detention facilities. “That’s not speculation — that’s data-driven, that’s results-oriented.”

Last year, Harris County made up about 15 percent of the state’s population but, among the three courts, it accounted for 25 percent of kids sent to juvenile prisons.

Devlin questioned the numbers from the county and state, as did a staff member in Phillips’ office. But neither judge commented on the findings. They, like Schneider, are up for re-election in November.

Uptick in incarcerations

Over the past four years, Texas courts have consistently sent around 800 young people — ages 10 to 17 — to the state’s juvenile prisons, according to TJJD data. But while the statewide figure has remained steady, Harris County’s share of it has ballooned. In fiscal year 2014, the county sent 101 youth to TJJD. Last fiscal year, the county sent 199.

Some of that increase likely stems from an uptick in certain types of offenses, including aggravated robberies. Four years ago, 1,248 kids in Harris County faced charges serious enough to make them eligible for a TJJD sentence; by last year that number was up to just over 2,000, according to figures provided by Phillips’ court.


That increase may not be enough to explain why the incarceration numbers have doubled in the same time frame and, more importantly, it doesn’t explain why there has been a dramatic increase in two of the courts and more modest uptick in the third.

Both the 313th and 314th Juvenile District Courts — overseen by Devlin and Phillips, respectively — sent at least two times as many kids to TJJD last year as they did in 2014, while Scheider’s 315th District Court sent 1.4 times as many as before. Phillips, who had the highest incarceration numbers of the three, sent 88 kids to juvenile prison last year while Schneider, on the low end, sent 36.

But, even though the raw number of commitments is rising across the three courts, only two jurists sentenced a higher percent of eligible kids to the state’s five secure lockups than they did four years ago. The data provided by Phillips’ court substantiated the state and county incarceration numbers, and included additional details about racial breakdowns and the number of children eligible to be locked up in state facilities.

Devlin sentenced 9.39 percent of eligible kids to TJJD in 2014 and 11.2 percent last year, while Phillips went from 8.5 percent to 14.1 percent.

Schneider sent 6.74 percent of eligible kids four years ago and 5.1 percent last year, according to court data.

“You always hear that courts are their own little fiefdoms and this certainly shows that,” said Michele Deitch, a juvenile justice expert and senior lecturer at the LBJ School of Public Affairs at the University of Texas at Austin. “Clearly there’s huge discrepancies. That’s the most striking thing, how differently the courts are treating these kids.”

Although the charging decisions are up to prosecutors, sentencing lies in the hands of the judges.

“This is the way they’ve chosen to exercise their discretion,” Chief Public Defender Alex Bunin said. “I don’t think there’s anything we can impose on them to change that.”

Earlier this year, Bunin filed a judicial grievance against Phillips, alleging racial sentencing disparities, a tendency to refuse plea deals that avoid incarceration and statements showing bias, adding up to what he said was a “willful violation of the Code of Judicial Conduct.”

“Between April 2017 and February 2018, Judge Phillips sentenced a higher percentage of juveniles to TJJD than either of the other two juvenile district judges, and as much as both combined,” the complaint notes. “The majority of these cases involved African-American and Hispanic males.”

Though the grievance — given to the Houston Chronicle by an outside party — was filed in June, the State Commission on Judicial Conduct does not confirm or comment on grievances unless they result in public sanctions, a process that state officials said can take more than six months.

Phillips’ court coordinator said the judge is prohibited from commenting on unresolved grievances, but state commission executive director Eric Vinson said there are no such limitations.

Younger and less-violent

In addition to packing off more kids to juvenile prisons, judges in the 313th and 314th district courts sent them younger and for lower-level offenses than the 315th District Court.

Overall, kids headed to TJJD out of Schneider’s court were slightly older than those coming from the other two courts. In fiscal year 2017, according to state data obtained through a public records request, Schneider sent no 13- or 14-year-olds to TJJD, while the other courts sent 18 combined.

“If they’re that age, very rarely do you see cases like that where you have exhausted all the local (alternatives),” Schneider said. “It’s just hard to imagine, although they might exist.”

And, while more than 80 percent of the kids sent to juvenile prison from Schneider’s court were charged with the serious offenses of aggravated robbery or aggravated assault, the other two courts tended toward less-serious offenses. About half of the kids both Devlin and Phillips sent to state-run juvenile lockups had less-serious charges such as burglary, evading arrest and unauthorized use of a vehicle.

“It’s no surprise that the bulk of the kids committed (to juvenile prison) have committed aggravated robbery,” Deitch said. “That’s to be expected. But what’s less expected is you’re seeing a lot more kids with simple burglary and simple robbery and unauthorized use of a motor vehicle from the 313th and 314th courts.”

‘We’re giving up more’

The vast majority of Harris County kids — an average of 96 percent — sent to juvenile prison were children of color, according to state data.

Statewide, it was just under 83 percent. But that disparity may be more reflective of local demographics, policing and charging trends than it is of judicial bias or sentencing practices, experts said.

“I think it has a lot to do with who’s being brought into the system,” Bunin said. “Basically, we’re giving up more on those children.”

Those figures were most pronounced in Phillips’ court, where 16 percent of TJJD-eligible black kids were sent to state facilities in 2017, versus 5 percent of eligible white kids.

The number of children of color sent to prison is impacted by racial disparities in the adult criminal justice system; the presence of responsible adults in a kid’s life is one of the factors judges weigh in deciding whether to let a child stay on probation or send them to prison. But with roughly 100,000 men and women of color locked up in the Texas Department of Criminal Justice, minority kids are less likely to have that supervision available, Schneider said.

“Disproportionately, the placement outside of the home is when there’s not family resources for supervision,’ he said. “Kids of color are disproportionately likely to have a parent that is incarcerated, which means that you are at a disadvantage in terms of being supervised.”

‘Makes them worse’

Amid a long-term, statewide decline, Harris County’s recent shift back toward juvenile incarceration sparked concerns among legislators, lawyers and advocates who worried that state prisons can make troubled kids worse.

“Locking kids up does not necessarily make them do better and sometimes as research has shown, it actually makes them worse,” said state Rep. Gene Wu, D-Houston, a lawyer who practices in juvenile courts. “Because then you’re putting them in custody with much worse kids.”

Indeed, one of the major findings from the Counsel of State Governments’ 2015 Closer to Home report was that kids locked up in state-run facilities are 21 percent more likely to be arrested again than their peers who stay under some type of supervision closer to home.

To Lauren Rose, youth justice policy director with Texans Care for Children, that figure suggests a natural solution.

“Rather than sending youth away to state lockups, judges should rely on their local juvenile probation department’s secure facilities for their highest-risk youth,” Rose said. “To ensure the county facilities have adequate space and youth are matched up with the right services, lower-risk youth who do not need to be confined should be kept out of lockups and, instead, get the supports they need in the community.”

And in theory, according to Schneider, that’s already what should be happening.

“If you look at the way it’s worded in the family code you’re never supposed to put a kid in a secure facility to punish them,” he said. “If you only put them there for rehabilitation and you exclude any notion of punishment, your numbers are going to go down because nowadays there’s so much rehabilitation available in the community.”

There are some legislative solutions, advocates said. Previously, lawmakers helped limit the juvenile prison population with sweeping reforms, including removing misdemeanors from the list of eligible offenses back in 2007 and adopting a “regionalization” bill in 2015 to keep kids closer to home.

Now, Rose said, they could further limit the types of offenses eligible for a TJJD commitment.

But Whitmire said the possibility for change lies in the hands of jurists.

“Since 2007, when we sent almost 5,000 kids to the state, we’re now under 1,000,” Whitmire said. “Everyone’s got it statewide, in large and small communities — except our two judges.”