The Problem With Determinate Sentence Requirements For Child Sex Crimes with Insights from Rick Cofer

The Problem With Determinate Sentence Requirements For Child Sex Crimes with Insights from Rick Cofer

Determinate sentences are a hotly debated theoretical issue in the realm of criminal justice reform. They’re also a real issue that criminal defense attorneys like Rick Cofer, Esq. and their clients face every day. What occurs when we rigidly apply punitive rebukes with no consideration of an individual’s circumstances? By looking at how situations like this affect alleged child sex crime perpetrators, we can extrapolate a dismal result.

Juvenile offenses are generally more complicated than adult infractions because young people are still developing. They are, in many ways, at the mercy of their environment and choices their families make around them. It’s also generally accepted that young people lack the life experience and maturity to act with the same level of thought as adults.

When young people commit serious offenses like child sex crimes, there are more losers than winners. We must untangle the web of hurt, flawed judgment, and danger with the interest of doing what is best for all involved. How can society address the victims, the accused, and the legal system to deliver rehabilitative and preventative services that protect the community?

This article respectfully submits that determinate sentences are not the best way to achieve any of those goals. Furthermore, there is evidence to suggest that the spirit of the Determinative Sentence Act is not currently carried out, in that it is being used to punish offenders for longer periods of time rather than to expose them to rehabilitative services within the juvenile system and then move them into parole status.

What Are Determinate Sentences?

As always, to gain a full understanding we must define our terms.

Determinate Sentence:

A jail or prison sentence that is definite and not subject to review by a parole board or other agency. For example, a sentence of six months in the county jail is determinate, because the prisoner will spend no more than six months (minus time off for good behavior, in some situations). By contrast, an indeterminate sentence (such as 20 years to life) has a minimum term but the release date, if any, will be chosen by a parole board as it periodically reviews the case. – Nolo’s Plain-English Law Dictionary.

The obvious problem with these types of sentences is that they are static and can last decades. There is no flexibility inherent in them. This excludes the possibility for growth and change in the incarcerated. It also stubbornly turns a blind eye to the concept of motivating an individual to do better by treating them on the merits.

Let’s bring this home with a real-world example most of us can relate to.

As a child, certain expectations, rules, and regulations were imposed upon you. It was your job to act accordingly or face the punishment from teachers, parents, and caregivers.

If you broke the rules and punishment was leveled, you either received the benefit of explaining your mitigating circumstances or you didn’t. Your punishment either included ongoing evaluation or it didn’t. In other words, if you were grounded for two weeks but showed an understanding of how you screwed up and changed your behavior and your parents repealed the house arrest early, you were rewarded for learning from your mistakes.

On the other hand, if you shaped up and apologized appropriately but your parents remained stoic and your punishment remained unaffected by your behavior, did you feel the same way? This isn’t about letting children off the hook, it’s about the valuable teaching moment available when mistakes are made. Determinate sentences reduce the incentive to rehabilitate and drain hope of redemption from youthful offenders.

This concept can likewise be applied to people who break the law, particularly youthful offenders.

The History Of The Determinative Sentence Act And Spirit Of The Law

Under the Texas Family Law, a prosecutor can choose to invoke special determinative sentence proceedings instead of opting for discretionary transfer to criminal court. This may be done if the prosecutor believes the DSA (Determinate Sentence Act) is a better alternative than discretionary transfer would be.

One reality is that this choice is often made because it involves less time and manpower than transfer to adult criminal court. Another situation on the ground that results in determinate sentencing is if the prosecutor fails or fears they may fail to win their argument for transfer before the court.

The history of this part of the Family Law involves a public perception that youthful offenders were not being properly punished and that their numbers were rising. The public was incensed that a child under but close to the age of 15 could commit a serious offense and receive a maximum sentence of only 6 years because they would age out of the court’s jurisdiction.

The Determinate Sentence Act was chosen as an alternative to other bills put forth which suggested changing the transfer age to 13. The transfer age refers to transfer to adult criminal court.

The Determinate Sentence Act was intended to keep youthful offenders in the juvenile court system while still providing all of the ‘procedural protections’ adults in criminal court are subject to. It also granted a greater time period of control, which was initially 30 years.

In the Act’s original form, youthful offenders with Determinate Sentences served in a juvenile facility up to age 18 and then received a Hearing in juvenile court for release to TJJD parole or discretionary transfer to an adult facility. While in the juvenile facility, offenders have more rehabilitative programs available to them and the idea was that young offenders could avail themselves of these programs and demonstrate change for the good.

It also removed some stress from the adult criminal justice system by keeping youthful offenders within the juvenile system.

Notable changes to the initial Act include the addition of 11 offenses eligible for determinate sentences, expansion of the maximum sentence (from 30 years to the current 40), and the elimination of court hearings for sentenced offenders unless the Juvenile Justice Department requested:

Transfer of an offender between 16-21 to an adult prison; or

Release to parole before the completion of the minimum sentence, which is 10 years for capital felonies like Aggravated Sexual Assault.

As the Texas Juvenile Law, 9th Edition states, however:

Unfortunately, one unintended result has been that prosecutors have used the discretionary transfer (certification) process more often since the amount of time TJJD has to work with determinate sentenced youth was significantly reduced. (p.549)

Therefore, although initially the benefit of this act was to offer more rehabilitation working toward release to parole, it now frequently reverts to transfer into an adult facility when offenders reach the age of majority.

Determinate Sentences For Juvenile Sex Crimes

Aggravated Sexual Assault is one of the 6 serious felony offenses that are covered by the Determinate Sentence Act. Sexual Assault and Aggravated Sexual Assault are determined by applying   to the circumstances. Loosely defined, this means that Texas recognizes Sexual Assault as a series of prohibited sexual actions committed against another without their consent. The prohibited sexual actions are clearly defined in this section of the Penal Code.

The assault rises to the level of Aggravated Sexual Assault if the victim is younger than 14, elderly, or disabled; some level of violence was involved; the aggressor acted with another person, or the victim was drugged. A full and detailed list of the requirements for Aggravated Sexual Assault is also defined in Texas Penal Code 5:22.

However, the Determinate Sentences Act has been modified since its adoption to make an exception for Aggravated Sexual Assault and Sexual Assault situations where no violence was involved and the victim was under 17 but the actor was no more than 3 years older than the victim.

Juvenile Sentencing

Juvenile sex offense sentencing has 2 components: the actual sentence as well as the issue of whether the youth must register as a sex offender. A youthful offender may serve 1 of 3 possible types of sentences. The offender may receive probation, an indeterminate sentence, or a determinate sentence.

If an individual is placed on probation, they generally remain at home and subject to certain requirements. These may include court-mandated therapy, daily curfew, community service, and counseling. Probation lasts for an unspecified period of time, however, it usually ends once the judge, advised by the juvenile probation officer, thinks the youthful offender has met all of the demands placed upon them, or the youthful offender has reached the age of 18.

A minor could be also sent to a Texas Juvenile Justice Department facility for an unspecified length of time, or an indeterminate sentence. Such an indeterminate sentence lasts a minimum of 9 to 24 weeks, or until the youthful offender’s 19th birthday. The particular length of the sentence lasts depends on the judge’s opinion of the progress made by the detained youthful offender.

As already outlined, the determinate sentence is the most series consequence facing youth convicted of sexual offenses. The judge will determine the length of time of the sentence based on the offense. This sentence can last up to 40 years for sex crimes and 1st-degree felonies.

If a minor receives a determinate sentence that extends past their 19th birthday they will either be transferred to adult prison or placed on parole.

Drawbacks To Determined Sentences For Child Sex Crimes

The Juvenile Justice Code in Texas outlines general provisions given for purpose and interpretation of the laws within it. This language provides valuable insight into the spirit of the law and directly relates to the argument at hand.

It states its intentions as follows:

(1)  to provide for the protection of the public and public safety;

(2)  consistent with the protection of the public and public safety:

(A)  to promote the concept of punishment for criminal acts;

(B)  to remove, where appropriate, the taint of criminality from children committing certain unlawful acts;  and

(C)  to provide treatment, training, and rehabilitation that emphasizes the accountability and responsibility of both the parent and the child for the child’s conduct;

(3)  to provide for the care, the protection, and the wholesome moral, mental, and physical development of children coming within its provisions;

(4)  to protect the welfare of the community and to control the commission of unlawful acts by children;

(5)  to achieve the foregoing purposes in a family environment whenever possible, separating the child from the child’s parents only when necessary for the child’s welfare or in the interest of public safety and when a child is removed from the child’s family, to give the child the care that should be provided by parents;  and

(6)  to provide a simple judicial procedure through which the provisions of this title are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights recognized and enforced. –   Family Code, §51.03

Although this section references an intention to “promote the concept of punishment for criminal acts,” it also discusses numerous goals of preserving families, improving communities, protecting the safety, and providing treatment, rehabilitation and training. In fact, punishment receives one line in this provisional section, whereas nearly every other word therein relates to striving to achieve a positive outcome.

It is therefore a reasonable conclusion that the spirit of the laws, regulations, and rules in this section of the Texas Family Code is not to render punitive retribution upon offenders but to uplift them while protecting and respecting the experience of victims.

This provision also clearly states its purpose as, “to remove, where appropriate, the taint of criminality from children committing certain unlawful acts.”

As this review continues, it is hopefully apparent that treating alleged or convicted offenders fairly is not mutually exclusive from being a victim’s advocate. Because rehabilitation and protecting against recidivism results in a safer community at large, proper treatment of offenders is also for the greater good. Determining when it is appropriate to modify punishment removes the taint of criminality from children.

The ultimate goal is to prevent these crimes and to prevent offenders from committing them again. It is not to crush youthful offenders under the full weight of vindictive laws. That may be something that offers some comfort to those victimized by offenders, but it is not a logical or helpful course of action in reality.

The true power in the system arises from recognizing that and moving forward with humility, kindness, and the spirit of rehabilitation.

Potential Registration

Now for the issue of registration, which can be yet another punitive sentence that follows a youthful offender for many years. Whether a youthful offender is given a determinate or indeterminate sentence, they may be required to register as a sex offender.

The judge will make this determination based on whether registration will do more harm to the offender than it protects society at large. Another registration option involves the deferment of the decision until the offender has completed a rehabilitation program. At that time, the Judge will hold a Hearing on the issue of registration.

Texas allows minor aged sex offenders to register on a list which is accessible to law enforcement, criminal justice agencies, and private and public schools only. The general public does not have access to this list. Conversely, the court may rule that the youthful offender must register as an adult would, which entails providing their address and photograph. This type of registration is accessible by the public.

The period of registration is generally 10 years, however, may be more or less.

Proof Of Positive Outcomes Of Youthful Sex Offender Rehabilitation Programs

Before examining the evidence as it pertains to youthful offenders, it is worth acknowledging that the public perception that adult sex offenders frequently reoffend is not borne out by the facts at hand.

In the most comprehensive single study on reoffense rates to date, the U.S. Department of Justice followed every sex offender released in almost 15 states for three years. The recidivism rate? Just 3.5 percent. These numbers have been subsequently verified in study after study. The state of Connecticut Criminal Justice Policy and Planning Division did a five-year study that found a recidivism rate of 3.6 percent. A Maine study found that released sex offenders were arrested for a new sex crime at a rate of 3.9 percent. Government studies in Alaska, Delaware, Iowa, and South Carolina have also replicated these results—all finding same-crime recidivism rates of between 3.5 and 4 percent. – Washington Post

This not only logically applies to youthful offenders, but they actually respond quite well to effective treatment.

The available evidence falls in line with the initial intent of the Determinate Sentence Act. It reveals that exposing youthful sex offenders to rehabilitative services yield positive results. It holds the potential to serve as an opportunity to release young people from the burden of negative contributing factors and transform them into productive members of society.

A study considered to be the leading authority regarding youthful sex offender rehabilitation found that such offenders are very receptive to treatment. When effective programs are offered to them, they achieve positive outcomes.

The study further suggests that treatment that involves a holistic approach including treatment for the family and community members of the offender, is the most effective.

Three years after treatment, participants in the study had significantly lower recidivism rates than peers who only received indivdual therapy. The ratio was 12.5 % of the young people who received “multi-systemic” treatment reoffended compared to 75% of those who did not receive the same treatment.

In 1999, a separate study examined young people who resisted their multi-systemic treatment. These individuals continued to exhibit problematic behavior and were a greater risk for reoffense.

These findings are important as they allude to the potential for rehabilitation in properly treated youthful offenders.

Taking Care With The Law

If you speak with an average person on the street who is uninformed about the reality of juvenile sex offenders, they are likely to advocate for punitive justice. However, social workers, criminal defense attorneys, and other professionals within the system often have a very different view.

Their hands-on contact with young people convicted of sexual offenses and their direct experience often brings them to the opposite conclusion. This is food for serious thought, as these trained and educated people are offering insight into a complicated issue that is too often driven by misguided public opinion.

Taking care with the application of laws like determinate sentencing and acting in the spirit it was initially offered in is a way to make a positive impact on society as a whole.

For more information, read our last article here.

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