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.

May 2007By Comments

IT BEGAN WITH A WORD ONLY A CHILD would use—“icky”—uttered in a place where innocence was commonly assumed to be dead. A conversation between a tormented teenager and a volunteer math tutor about sexual abuse at a high- security lockup in Pyote, about fifty miles west of Odessa, set in motion a chain of events that has led to the downfall of the executive director of the Texas Youth Commission (the state agency responsible for juvenile corrections), the ousting of its board, the dispatching of police to every juvenile facility in the state, and an opening for the kind of corrections reform not seen since federal judge William Wayne Justice assumed control of the state prison system in the eighties. In the wake of the scandal, conventional wisdom about our obligation to delinquent youth has moved a long way in a very short period of time. “They are criminals,” one agency supervisor told a reporter shortly after the story broke in February. “They are not children, as you keep calling them. They have survived in this world by learning how to manipulate and using it to their advantage.” Two weeks later, after the real story of what had happened at Pyote had become impossible to deny, a rural East Texas legislator named Jim McReynolds was almost in tears. “They’re God’s children,” he told a packed hearing room at the Capitol. “I read last night till I wanted to vomit.”

What McReynolds and other legislators had been reading was a confidential Texas Rangers report describing, in stomach-turning detail, a year’s worth of alleged sexual abuse of multiple victims ranging in age from seventeen to twenty by two top officials at the West Texas State School, in Pyote. Ranger Brian Burzynski began his investigation in February 2005 after receiving a tip from the tutor, Marc Slattery. Burzynski completed his report a month later, but neither man was ever prosecuted. As a result, the details of the investigation were not made public until February 16 of this year, when I published a story on the long-hidden scandal on the Web site of the Texas Observer. Burzynski had discovered that the assistant superintendent at Pyote, Ray Brookins, was allegedly pulling inmates (or students, as they are called) out of the dorms at night and molesting them in his office. In his staff housing residence, adjacent to the facility, 41-year-old Brookins had an enormous cache of pornographic tapes and DVDs and sex toys, which he often brought to his office for his late-night activities. Investigators found semen stains all over his office: on the carpet, on the walls, on the furniture. Brookins’s power over the young men he allegedly victimized stemmed from his control over their length of stay at the facility. “You didn’t want to mess with Ray Brookins if you were a student,” one youth told me.

The principal at Pyote, 41-year-old John Paul Hernandez, had allegedly had more than a dozen sexual encounters with at least four students, according to the report. The men do not appear to have been covering for each other; Pyote had two alleged sexual predators, operating independently of each other, each in a position of considerable responsibility at the unit. Hernandez allegedly plied his victims with cake and popcorn at late-night TV-watching parties in his office or called them from daytime classes for furtive sessions in supply closets. He promised to help them get jobs or continuing education once they left Pyote and apparently maintained an ongoing sexual relationship with at least one student after he left the facility. Burzynski turned his report over to Ward County district attorney Randall Reynolds for prosecution, but Reynolds left it on his desk for more than eighteen months, never filing a charge against either Brookins or Hernandez. He told the Observer he was waiting to see where the case would lead, but it appears he never had any intention of going after the two men, who resigned shortly after the investigation began.

As grim as the picture presented in the Ranger report is, the findings of an internal agency review are, in some ways, even worse. At least three administrators at the school approached Pyote superintendent Chip Harrison with concerns about Brookins and Hernandez, yet Harrison didn’t take action against them. Rumors were rampant around the facility about both men. Brookins, for example, was spotted creeping around the student dorms at night in dark clothing, peering in windows at sleeping youths. Frustrated employees tried to bypass Harrison and complain directly to TYC brass in Austin, but a high-ranking official sent to investigate found nothing amiss and even chastised a whistle-blower for failing to support Brookins in his job. A year after Burzynski completed his investigation, when it appeared likely that the scandal was not going to make the papers, Harrison was promoted to a top position at the TYC in Austin. Worst of all, after resigning from the TYC, Hernandez somehow managed to find employment as a principal at a charter school in Midland, where he was still working when the Observer story came out.

The Dallas Morning News filed its own story on the Pyote scandal shortly after the Observer did, and soon every major paper in the state was chasing it. Within a week, the executive director of the TYC, Dwight Harris, resigned. Outraged by the allegations and the agency’s apparent attempt to hush up the crisis at Pyote, the state Senate called for placing the TYC under an outside conservator, a radical move usually accompanied by a complete housecleaning of the board and senior agency staff. Instead, Governor Rick Perry appointed his old deputy chief of staff Jay Kimbrough to do a top-to-bottom investigation of the TYC. Kimbrough immediately sent 71 peace officers to the agency’s 22 lockups and halfway houses. A special joint committee of House and Senate members was formed to propose reforms. Troubles at the youth commission had hijacked the legislative session.

In the weeks that followed, the revelations kept coming. The Morning News reported that a similar scandal had occurred at a youth facility for girls in the Central Texas town of Brownwood, where the agency determined that an officer had sexually abused at least three girls, one of whom was only fifteen. The alleged perpetrator resigned in 2005 but had never been arrested or prosecuted. In the past six years, in fact, according to statistics compiled by the House Corrections Committee, TYC officials reported 6,652 cases of abuse and neglect in their facilities to law enforcement officials, among them 39 sexual assaults. (That number may be low: A survey by the state auditor’s office found that 40 percent of TYC staffers feared retaliation by co-workers or supervisors for reporting abuse.) Local authorities declined to prosecute all but 18 of the cases. In the past year alone, 13 confirmed sexual assaults have occurred. Not one has resulted in a prosecution. As the scandal widened, several top officials at the TYC in Austin were fired or forced to resign, and two administrators at TYC facilities were arrested for hindering the efforts of investigators. Brookins and Hernandez were finally arrested on April 10, after the state attorney general’s office took over the Pyote case.

IF ANY OF THIS SOUNDS FAMILIAR, it’s because we’ve been here before. In 1971 a group of juvenile inmates sued the state over conditions in correctional facilities. One of those “training schools,” known as Mountain View, was described at the time by one corrections expert as being worse than the Louisiana State Penitentiary at Angola, the most notorious prison in the South. “Many people in the seventies realized it was not enough just to fire a few people,” said Bill Bush, a professor of history at the University of Nevada, Las Vegas, who is writing a book on youth corrections. The problem at a place like Mountain View was the institution itself. In what became known as the Morales settlement—named for one of the juvenile plaintiffs and brokered by Judge Justice, in one of his first great crusades—the state agreed to new standards on the use of solitary confinement, adequacy of student and staff grievance systems, parole and release criteria, and due process protections. Most crucially, the state agreed to begin using community placement alternatives, like halfway houses, which meant sending fewer youths to high-security lockups. As a result, two training schools, including Mountain View, were shut down.

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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