Future Forum: Guilt, Innocence, and the Death Penalty 
Sins of Commission
We should absolutely find out who knew what when and why nothing was done sooner. But the real scandal at the state’s juvenile lockups is how little we learned thirty years ago, the last time the system failed us.
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By the late eighties, there were only about one thousand youths in five large facilities in Texas, and the state seemed to be moving in the direction of what is today known as the Missouri model of youth corrections. After a similar crisis in the late sixties, the state of Missouri closed its large prisonlike facilities and began shifting youths to smaller ones closer to their homes, so that families could be involved in the rehabilitation process. With fewer than forty students, they look less like prisons than privately funded drug rehab clinics. The emphasis is on group therapy, not punishment. Neither the youths nor the staff wear uniforms. There are no majors, captains, or lieutenants, and the students do not learn to march in step military-style, as they do in Texas. Roughly 90 percent of the Missouri Division of Youth Services employees have college degrees. The recidivism rate, which measures the number of inmates who commit crimes and are returned to custody after their release, is 8 percent, which is unheard of (in Texas, the rate was around 50 percent last year). And the model is considerably cheaper than those in most other states, ensuring that conservatives, including former Missouri governor John Ashcroft, stayed on board as administrators experimented over the years. Missouri’s system is now considered the cutting edge in juvenile corrections.
Texas, meanwhile, is back in the news as the worst of the worst. So what went wrong? Bill Bush points to the 1994 governor’s race, when George W. Bush ran against Ann Richards on a platform that included cracking down on juvenile crime. Youth crime had surged in the eighties, fueled in large part by gang-related violence associated with the cocaine trade. In the early nineties, lurid stories about so-called “superpredator” kids were popular fare in weekly magazines and on talk shows. “So long as we’ve got an epidemic of crime, I think we ought to forget about rehabilitation and worry about incarceration,” Bush told reporters during the campaign, when he advocated converting drug rehab facilities into youth lockups. In 1995 the Legislature enacted much of Bush’s campaign platform for youth crime, making it easier for judges to lock up juveniles for longer periods and approving $14.8 billion in bonds for construction of new youth prisons. The state school system grew from 1,100 youths in five units in 1992 to 4,800 youths in thirteen lockups and nine halfway houses today. The rapidly growing system strained the state budget, and money for guard pay and training was kept low. Guards today must simply be eighteen and have a GED; they receive only eighty hours of training. “Economy” became the watchword at the TYC, says Democratic senator Juan Hinojosa, of McAllen, and rehabilitation gave way to simple warehousing of problem kids. “The chickens have come home to roost,” he says.
Hinojosa has been working on TYC reform ever since the U.S. Department of Justice began an investigation of alleged abuse at the Evins Regional Juvenile Center in his district in 2004. (Shortly after the Pyote scandal broke, federal authorities gave the TYC four weeks to turn things around at Evins or face a federal lawsuit.) Together with Republican representative Jerry Madden, of Richardson, Hinojosa introduced an omnibus reform bill this legislative session that will dramatically increase the amount of training guards receive, lower the staff-to-student ratio at TYC facilities, create a truly independent inspector general to investigate abuses, and empower special prosecutors from the adult prison system to try cases that arise. The system is likely to begin shrinking again, as it did after the last major scandal—perhaps by as much as half of its capacity. A state auditor’s report recommended that the Legislature consider closing several of the more remote facilities, including Pyote. In early April, the TYC announced that 450 students would be released and another 1,500 would have their cases examined to see if they’d been incarcerated longer than necessary. Democratic senator Royce West, of Dallas, has filed a bill that would create a pilot program based on the Missouri model, and the agency will be reevaluated next year by the Sunset Commission, where reformers will argue for a more comprehensive overhaul.
According to Mark Steward, the man credited with developing the Missouri model, big lockups like Pyote have to go before the culture at the TYC will change. “These big institutions are full of dirty little secrets,” he said. It is much harder to hide abuse, Steward said, when the director of a facility knows each student by name. Steward, who began his career as the first group counselor in the Missouri system 37 years ago, now runs a not-for-profit consultancy, helping other states with troubled systems. In recent years, Louisiana and Washington, D.C., have begun implementing the Missouri model. After only two years, student assaults on staff members are significantly down in Louisiana.
There was, as Steward suggests, a culture of secrecy at Pyote, but what happened there was no secret to the students on the unit, who kept a running list of everyone who had been sexually victimized by staff or fellow inmates. Life at Pyote taught students that the world was a place where strong people prey on weak people, even those they’ve promised to protect. Young people who internalize this lesson, one former dorm supervisor at Pyote told me, will go out and hurt somebody else. “They figure, ‘It happened to me and I got over it,’” she said. “‘The person I’m hurting will get over it too.’” Texas Youth Commission inmates are often described, even in the rash of newspaper stories reporting on abuse in the system, as the most violent kids in the state. Actually, most TYC inmates are not locked up for violent crimes. “A huge number of these kids have mental illness issues, substance abuse problems, learning disabilities,” Democratic senator John Whitmire, of Houston, said. Most of them wind up in the TYC after being kicked out of school.
“We’ve got to think about what we’re doing on the front end,” said Will Harrell, the executive director of the American Civil Liberties Union of Texas. Even as the omnibus reform bill moved out of committee, at least three bills designed to make it easier to expel kids from public schools were working their way through the legislative process. Most kids who are expelled are sent to disciplinary alternative education programs; studies show that three quarters of the kids in these programs eventually wind up in the TYC. Those TYC students, in turn, are much more likely to make their way to adult prisons. “We call these ‘school-to-prison pipeline bills,’” Harrell said.
AFTER THE SCANDAL BROKE, the debate in Austin soon turned to who should take responsibility for what happened at the West Texas State School. Governor Perry told texas monthly that he did not know about the trouble at Pyote until he read about it in the papers (see page 68), though his staff conceded that the TYC had sent his office a memo on the investigation shortly after Ranger Burzynski arrived at Pyote. The Houston Chronicle subsequently uncovered an e-mail establishing that the governor’s office was informed in June 2005 that the prosecution of Brookins and Hernandez had stalled. Even if the governor did not know how badly the situation in Pyote had been handled, the board members he appointed to run the agency certainly should have. Perry initially resisted calls from legislators—including some powerful Republicans—to replace his appointees, who came across as hapless and uninformed in hearings on the crisis. Eventually, legislators got their way when all six board members resigned and Perry reluctantly agreed to make Kimbrough the TYC’s conservator.
Meanwhile, the attorney general’s office, which agreed in March to prosecute the two alleged perpetrators, came under fire for failing to step in more than a year ago when it became clear that Ward County district attorney Reynolds was not going to prosecute. Reynolds’s name is now mud at the Capitol, where lawmakers have openly discussed ways to have him removed from office. Yet he is hardly the only DA to ignore allegations of crimes committed against TYC inmates, whose families often live hundreds of miles away and whom, as a consequence, many prosecutors do not consider to be their constituents.
Lower-profile players in this calamity have yet to come in for their share of the blame. There is the State Board for Educator Certification, which still shows John Paul Hernandez to have a valid educator’s license 21 months after the board was informed of what he was accused of doing at Pyote. There is the Richard Milburn Academy, in Midland, the charter school that hired Hernandez even after being informed by TYC officials that he had been investigated for inappropriate sexual contact and was not eligible for rehire. (Publicly funded charter schools such as Milburn are exempt from many of the regulations that other public schools must follow.)
By contrast, Brian Burzynski, whose best efforts were thwarted for two years, can hold his head high. The Texas Ranger was often at a loss for words during his emotional testimony at a legislative hearing in March. “I saw kids with fear in their eyes because they knew they were trapped,” he said. “Perhaps their families failed them. TYC definitely failed them. I promised each one of those victims that I would do everything in my power as a Texas Ranger to ensure that justice would be served and that this didn’t happen again.” We now know that it did happen again, to different victims at different facilities across the state. The truth is that it might still be happening today if a teenager with a troubled conscience hadn’t summoned the courage to talk about something he had no words for and found someone who took his job seriously enough to listen.
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