Should the State of Texas Be Allowed to Do This to Children?

The primary goal of Texas county juvenile justice facilities is to rehabilitate juveniles in order to develop good behavior and deter potential repeat criminal activity. However, new amendments proposed by the Texas Juvenile Justice Department (TJJD) on chemical spray in county juvenile facilities threaten the overall objective of juvenile justice and the safety of the youths and staff involved. The TJJD has proposed amendments to the Texas Administration Code Chapter 343, which would expand the chemical use of oleoresin capsicum (pepper spray) as an ordinary restraint method at county juvenile rehabilitation centers across the state.  Not only does use of chemical spray negate the goal of rehabilitation, the use of this chemical restraint as punishment is outdated, ineffective, and harmful—not to mention, the proposed amendments lack proper definitions and guidelines to prevent the abuse of discretion in the facilities, opening the doors for medical claims against the state.

A report to the Council of Juvenile Correctional Administrators found that facilities with high numbers of restraint and chemical incidents are more likely to produce higher rates of safety problems because of youth and staff injury, suicidal behavior, and fear among the youths from injury by staff.

The reported higher rate of incidents explain why the Council of Juvenile Correctional Administrators’ annual, national survey revealed only six state juvenile corrections agencies authorizing the use of chemical spray in order to secure the facilities: The low national authorization is due to data that shows negative impacts on the staff, juveniles, and facilities when it is used. The survey also showed that 15 agencies authorized chemical restraints, but not necessarily for the staff to carry on their person. Nine of those 15 agencies only authorize chemical restraint as a last resort measure. Overall, nearly 90 percent of the total juvenile correctional agencies do not authorize staff to carry chemical spray as a means to secure facilities.

The American Bar Association (ABA) standards for Juvenile Justice allow chemical restraint only in extreme situations and under strict controls. The ABA also requires the department to adopt regulations that closely govern such use. Not only would improper training and use of chemical restraint put the youth and staffs’ health at risk but would also result in the county and juvenile facility as subject to numerous investigation and lawsuits.

Our Recommendations

At present, the proposed TJJD code allows for use when the juvenile exhibits “physical aggression.” That’s a term open to broad interpretation and without a more narrow definition, there is no limit to the use of the chemical spray.

To mitigate this risk, the TJJD needs to get more specific about uses and training. For one, the amendments should strictly prohibit use to situations where there is a certain risk of life or serious bodily injury. This language would help safeguard the use of chemical spray only as a last resort effort in cases of extreme crisis. The amendment does make room for a provision that requires staff to abstain from use of the chemical on juveniles with respiratory or eye conditions. Strangely enough, there’s no indication of how these individuals would even be identified. When staff members are instructed to react to any form of “physical aggression,” it’s unlikely they would stop to inquire about a youth’s eye or breathing conditions.

Also, the TJJD should better define who would be required to train the staff in proper use of the chemical spray.  The current draft is mute on this matter, a vagary that could result in improper training and place the well-being of staff and youths in danger.

The TJJD should scrap these proposed amendments altogether. Various national written standards of chemical restraint reiterate the fact that pepper spray should not be used at all. However, if the TJJD insists on moving forward with authorization, it should adhere to strict rules regarding usage, reporting of usage, and post-use practices.  To do so, the agency needs to draft amendments that are strictly and clearly defined. Presently, the TJJD falls well short of this mark and the consequences could be devastating.

Read our letter to TJJD on their proposed changes to pepper spray rules:

Update: After listening to concerns from the ACLU and our fellow advocates, TJJD has chosen to delay consideration of this new standard until January 2014.


Drug testing #TANF applicants is wrong. Here’s why!

By Terri Burke
Executive Director

A few days ago we posted our response on Facebook to a proposed law that would require drug testing of applicants for Temporary Assistance of Needy Families (TANF), which was endorsed by Gov. Perry and Lt. Gov. Dewherst. Our post drew a number of very spirited replies from supporters and non-supporters. To those who commented, thank you all for writing. Let me respond to some of your comments to emphasize a few points:


Halyi, There is no evidence welfare recipients use drugs at a higher rate than the rest of the population. When Florida tried this, over the 4 month period before the courts shut them down, the state lost $45,000 and discovered only 2.6 percent of the folks tested positive for drugs.

Jonathan, this drug test will only identify drug “use” not abuse. However much some of us may deplore any drug use, there is a difference between use and abuse. Moreover, the constitutional questions raised by mandatory government testing are far more problematic than testing by a private employer. This represents serious government overreach.

Robert, children of the occasional marijuana smoker are surely better off with that parent than being thrown into the Child Protective Services system (I don’t know where you live but search www.chron.com for some very scary stories about that if you haven’t seen them).

Johnathan, the average TANF monthly check is about $200, according to Gov. Perry. I don’t know much about drugs, but I doubt that buys very many.

Keilah, if you buy the argument that the taxpayers have a right to demand that those who receive taxpayer dollars be drug tested, then why aren’t we demanding drug testing of all the veterans, the senior citizens who receive Medicare and Social Security, farmers who get government subsidies, entrepreneurs who receive Texas Enterprise Funds from the governor’s office, and so on. My point is quite simple: we are making poverty a crime. We are going to drug test a group of people who differ from these others only because they may be poorer, they may be black, they may be brown – not because they are drug users.

I’m sorry we disagree on this but I hope you will continue to comment on our Facebook posts, receive our emails, and continue to challenge us when you think we should be. It is only through these dialogues that we get a better sense of the thinking of all Texans.


Sunset Commission Sets the Tone for Criminal Justice Reforms in 2013

By Kate Vickery
Policy Intern

The last time that the Texas Department of Criminal Justice was up for Sunset review, the prison system in Texas was bursting at the seams. Today, thanks to some positive reforms during the 2007 session, adult incarceration rates have leveled out.  The state has a long way to go to make a real improvement in our chronic over-incarceration problem, but thanks to the advocacy of groups like the ACLU of Texas, Texas Criminal Justice Coalition, Texas Civil Rights Project, and many others, reforms are starting to be made.

All of these groups were in attendance for the Sunset Advisory Commission hearing on June 5, 2012 at the Capitol.  The Texas Department of Criminal Justice, Board of Pardons and Paroles, Windham School District, and Correctional Managed Health Care Committee are under review by the Sunset Advisory Commission.

Our Policy Strategist Matt Simpson and I attended to give the ACLU of Texas’ testimony on a number of issues that are currently not included in the Sunset Commission’s recommendations. It is important to start the conversation on these important issues because the Sunset process often sets the stage for the legislative priorities for the next session, which will begin in January.  The ACLU of Texas is particularly interested in:

We were pleasantly surprised by the support for reform of the Medically Recommended Intensive Supervision (MRIS) program. MRIS is a mechanism for releasing elderly (Texas’ oldest inmate is currently 90), and mentally and terminally ill individuals who are not a risk to public safety. Currently, the sickest inmates can cost the state up to $1 million per year each for health care while posing no public safety threat.  Senator Whitmire called for lawmakers to make a “tough vote” for a bill that would make it easier to release these individuals, underscoring that this likely will be an uphill political battle.

Medical release was one of many issues discussed throughout the day and it was inspiring to hear the testimony of the agencies dedicated to criminal justice reform and the powerful stories of family members of incarcerated individuals.

To download the full Sunset Commission staff report and recommendations for all four agencies, go here.  You can watch the full video of the hearing here.

To get more involved in these important issues, sign up for ACLU of Texas e-alerts!


Growing Wave of Opposition to Sanctuary Cities Bill

By Kirsten Bokenkamp
Communications Coordinator

The Texas Senate passed SB 9 last week, but not without fierce opposition. Police chiefs, religious leaders, businesses leaders, human rights advocates all sounded similar alarms – SB 9 will hurt our economy, undermine our safety, and undercut our values.

Today, the House is holding hearings on SB 9 and its House counterpart HB 9. Today is also World Refugee Day. Unfortunate irony aside, the collective message is clear – SB 9 and HB 9 are wrong for Texas.

Major news outlets around Texas agree with the concerns about this legislation. We hope that Texas House Members will heed these concerns before casting their vote.

  • A Dallas Morning News editorial on June 16th notes that supporters of this bill have “ignored police chiefs who say their current policies work fine…[and who say that the bill] would undermine police chief’s attempts to focus on violent or property offenses”. The paper noted additional problems with the bill including undefined language, high risk of racial profiling, economic costs, and scaring off witnesses, and “hopes that House members wake up to the everyday mess this bill would cause and fight passage”.
  • On June 17th, on the front page of the Houston Chronicle Metro Section, a sad and gripping article explained that the Sanctuary City bill would have done nothing to prevent the death of Houston Police officer Kevin Will, killed last month by an undocumented drunk driver, who had already been deported twice. The article clearly shows that this legislation is not only ineffective, but also argues that looking tough on undocumented immigration for political gain will not be worth the costs to society.
  • A June 15th editorial in the Star-Telegram called legislators out for twisting the purpose of the bill by falsely connecting undocumented immigration to protecting us from violent Mexican drug cartels. The paper argues that the bill will not deter drug traffickers, but it certainly will burden police departments (costing about $4.5 million to train officers), and will ruin the lives of good people who come to Texas to provide better lives for their families.
  • The San Antonio Express calls the bill a misguided initiative, searching for a problem (‘Sanctuary Cities’) that is hard to prove even exists. Furthermore, the bill will distract police from their primary mission to protect against crime, and while it targets Latinos, all Texans will feel the negative effects.

Bring the Kids!

September 17th, 2010 No Comments   Posted in Texas Legislature, Youth rights

By Tracey Hayes
ACLU of Texas Outreach and Advocacy Coordinator

Interested in Youth Lege Team? Sign up or get more info by contacting Tracey at thayes@aclutx.org or 512.478.7300 x 124

The ACLU of Texas is looking for a few enthusiastic, hard-working, savvy teens to join our Youth Lege Team. We are offering a legislative training program for teens 15 and older. They may join with our other experienced volunteers and our professional advocates to influence lawmakers in the 2011 legislative session.

Our program meets the fourth Sunday of each month at 2 p.m., at the offices of the ACLU of Texas in Austin. If you know teens who may be interested in this program, please have them contact us and we’ll welcome them to the team.

Through our training, we demystify the legislative process (as much as anyone can) and teach youth the proper ways to advocate on issues that matter to them. When the legislative session begins, we will support the efforts of our youth advocates if they choose to apply their skills during the legislative session.

Here’s a link to our Bill Book (PDF) outlining our legislative agenda for the previous session to give you some idea of our issues.


Human Trafficking in Texas: Not Just a Border-Line Problem

By Jen Dykstra and Evan Mintz, 2010 summer interns

The phrase “human trafficking” usually summons images of internationally smuggled laborers and trans-national sexual exploitation. However, at last week’s meeting of the state Criminal Jurisprudence and the Judiciary and Civil Jurisprudence committees, testimony from district attorneys, police and non-profits demonstrated the horrors are much closer to home. The hearing shook our preconceptions about the reality of human trafficking in Texas and the challenges facing law enforcement.

Given Texas’ massive border with Mexico, sprawling international airports, and global shipping ports, it is no surprise that state government would take up the issue.

What we learned is that a vast amount of trafficking occurs exclusively within U.S. borders. Many spoke of teenage runaways whisked into forced prostitution or labor within 48 hours of living on the streets. Even more shocking was that, according to the Austin Police Department, 20 percent of all human trafficking victims travel through Texas at some point — mostly on Interstate 10.

What Texas Has Done and Needs to Do
During the 81st session, the legislature passed HB 4009, which requires the Attorney General to establish a task force to develop policies, procedures, data collection, and training to assist in the prevention and prosecution of human trafficking. It was a strong step, even after Texas became one of the first to codify human trafficking as a separate offense from kidnapping.

Many who testified enumerated the shortcomings Texas, and the rest of the nation, faces in fighting human trafficking. Some problems are obvious — funding programs, training local law enforcement officers, and general public awareness. However, a recurring theme was how to break the cycle of girls willingly returning to prostitution after age 18.

Continuing Concerns
The testimony from district attorneys, police, and non-profits painted a picture of a vast system exploiting men, women and children.

Law enforcement is currently ill-prepared to deal with an industry hidden within our cities, and police often come at the problem indirectly. Police often only catch human traffickers after charging the victims with a crime. Young girls exploited by traffickers are arrested for prostitution, and only through investigations of this crime do police learn about threats and coercion inherent in human trafficking. For this reason, enhanced training for local law enforcement on identifying victims of human trafficking is an essential next step.

Despite steps to specifically criminalize involuntary trafficking, this distinct problem is often viewed through the lens of voluntary immigrant smuggling. And many district attorneys are willing to rely upon familiar misdemeanor charges, such as unlawful restraint or prostitution, rather than the felony charge of trafficking.

And in a Texas-sized irony, girls not old enough to legally consent for sex can still be charged for prostitution. The age of consent in Texas is 17, but girls younger than that are frequently charged with prostitution. It is contradictory and wrong for girls too young to consent to be arrested specifically for doing that very thing. To fix this, Mandi Kimball, Director of Public Policy and Government Affairs for Children at Risk, proposed that the legislature add a minimum age requirement for the charge of prostitution. This change would help protect the exploited, while encouraging law enforcement to focus on the perpetrators of the crime, not the victims.

Texas Has More Work to Do
While Texas is making strides, there is more that can be done. Look for upcoming legislation in Texas starting next January, and contact your state representatives to support funding and legislation aimed at human trafficking.

Contact organizations like Children at Risk, HumanTrafficking.org, The Polaris Project, and your local ACLU affiliate to see how you can help end the sale and exploitation of people around the world.


Poorer, Not Safer

April 30th, 2010 1 Comment   Posted in Border security, Texas Legislature

By Terri Burke, ACLU of Texas Executive Director

Using more state money on expensive, high-tech equipment to fight crime near the Texas-Mexico border is a waste of money, unless you consider $153,800 per arrest a bargain.

So far 29 border cameras installed at a cost of $4 million have been used to set up the Virtual Border Watch program that mostly catches the movements of desert wildlife. Internet viewers have helped police make a total of 26 arrests over four years of the program, according to a recent report in the Texas Tribune.

Our 2009 report on Operation Border Star (PDF: Part 1, Part 2, Part 3) a state funding program for local law enforcement, showed just how wasteful and ineffective it is to divert state resources and manpower for enforcement of federal immigration law. State grants to local law enforcement should be focused on drug-related violent crime, not apprehending undocumented persons.

I reiterated our position in written testimony delivered to the state House of Representatives Border & Intergovernmental Affairs Committee chaired by Rep.Veronica Gonzales. The committee met Thursday in McAllen. The purpose of the hearing (held jointly with the Committee on Public Safety) was to take testimony on the effectiveness of state operations at controlling drug-related crimes and other violence along the Texas-Mexico border.

So far, state funds have been used to buy low-yield but high-priced technology and to pay for ineffective policing that relies on racial profiling or intrusive road stops that do little to stop violence along the border. More often, inconvenience or harassment is the main result, not the apprehension of violent criminals.

Here’s a classic example: From May 2008 through October 209, Operation Border Star patrols in one county paid for 4,725 traffic stops. The result? Two drug arrests — resulting in the seizure of one ounce of marijuana and trace amounts of cocaine — and not even one arrest of known gang members.

The State of Texas is facing an $11 billion shortfall for the next biennium. We cannot afford to spend another $112 on inefficient programs that make us poorer, not safer.


Texas Lawmakers Shouldn’t Waste Time On Law Similar to Arizona’s

ArizonaBy Jose Medina
ACLU of Texas Media Coordinator

By now we’ve all heard about the misguided step Arizona lawmakers took in approving a racial profiling law disguised as an immigration law.

Well, it didn’t take long before some in Texas expressed a desire to ignore the Constitution and throw their support behind something similar for the Lone Star State. Thus far two legislators have said they plan to introduce legislation similar to Arizona’s when the Texas Legislature convenes in January.

ACLU of Texas Executive Director Terri Burke issued the following statement Tuesday in response to the news that State Rep. Leo Berman of Tyler wants this state to follow in Arizona’s footsteps:

“At a time when the State of Texas is facing an $11 billion shortfall, it is preposterous that an elected official would even consider throwing an unconstitutional racial profiling law into the legislative mix. Last session, we wasted months on Voter ID, another proposal disguised as a solution to a problem that doesn’t exist – polling place fraud. We can’t afford nonsense like that in the coming session.”


And today the San Antonio Express News reports that State Rep. Debbie Riddle of Tomball also thinks Arizona’s law is a good idea for Texas.

“Arizona’s law is unconstitutional. It doesn’t make Arizonans safer. It is leading to national protests and perhaps an economic boycott of the state. Over time, enforcement will erode community confidence in police and reduce community cooperation in fighting crime. Texas doesn’t need any of these bad results from a bad law,” added Burke.


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