Intensity and complexity describe juvenile law, in terms of its unique blend of criminal and civil law, but also with regard to the client: by definition, the client is a child.
We all have clients, no matter our practice area, be it corporate, family, personal injury, immigration or criminal, who stand out as particularly hard–headed, unreasonable, or worse. Imagine those characteristics possessed by a 5’2” 11–year–old charged with a serious felony crime, coupled with parents who do not care about the child, and you can begin to appreciate the magnitude of the potential problems. I have had parents tell me “let Junior go to TYC, it will be good for him.” I gently explain that my duty is to the child, not them, but since they are parties, I thank them for their input. I have even had this type of parental feedback in cases where TYC is not even possible! I guess it means the parents don’t want to feed, clothe and supervise the child, which may explain why the child is in the juvenile system to begin with. I have also experienced even sadder cases where the child views TYC as a better place than his home.
Evolving Standard Concerning Best Interests of the Child
In addition to the client, juvenile practioners will encounter at least some of the following players in most cases: the court, the prosecutor, the probation officer, the parents, and psychiatric, psychological and educational professionals. All of these competing interests must be considered when defending the juvenile client, but all should be working towards “the best interests of the child,” which is the touchstone of Texas juvenile law.
What this means has evolved through the years, as the emphasis has changed to more adult type punishment, first via the certification and transfer laws, and later the determinate sentence laws enacted in the 1990s. Prior to the determinate sentence law, commitment to TYC until the age of 21 was the harshest punishment available unless the child was certified as an adult. However, if the child was not certified, because of age or other factors, a juvenile convicted of murder would have been released from all supervision no later than the age of 21! (Under certification proceedings, a juvenile can be punished by a judge or jury for up to life in adult prison). The determinate sentencing procedures allow the state to seek grand jury approval of the petition filed against the juvenile. It differs from certification and transfer because the potential punishment for the most serious offenses is capped at 40 years and it keeps the child initially in the juvenile system. Additionally, if the child does well while in TYC, no TDC transfer will take place and the child will never have to serve adult penitentiary time.
The determinate sentence laws are now nearly 20 years old and seem routine, but they were considered radical when first enacted. I prosecuted the first Bexar County juvenile determinate sentence case to a jury in 1993. The facts of the case concerned a brutal series of gang rapes. The evidence went well for us, and at closing arguments, my trial partner, Philip Kazen, launched into an incredibly impassioned plea, asking the jurors to assess the maximum punishment on each count. He followed up this zealous request with another, asking the jurors to shred the probation verdict forms so that there would be no question that the juvenile respondent’s probation application was rejected. The jurors returned after punishment deliberations with a stack of shredded paper lying atop the six 40–year sentences. If you guessed that the ripped up pile of paper was the probation forms, you would be right!
On the other end of the spectrum, what about the child who has no record, does well in school but makes a mistake and is charged with an offense such as drug possession, driving while intoxicated, criminal mischief, racing, assault or graffiti?
These types of children are unlikely to receive any sentence other than probation. They are also unlikely to re–offend. How does a juvenile conviction affect them and their future? The good news is that all charges, even felony sex and weapons offenses, can be sealed if they are “regular” petition cases.
The child must reach the age of 21 with no further offenses, and the judge may then seal the records. The legislature has also recently amended the law to allow discretionary sealing on some types of felony offenses at age 18. Misdemeanor offenses, such as possession of marijuana, must be sealed upon request, when the child turns 18, if no further offenses are committed. These types of misdemeanor offenses can also be sealed before the age of 18 at the discretion of the court.
I have only touched the surface of the intricacies and range of juvenile practice, and the technical details must be mastered to effectively advocate in these cases. But, for me, the heart of juvenile practice and defense is the ability to give a child another chance. What a satisfying moment it is when you have successfully defended a child, and not only are they not going to prison, but they will be able to secure employment, attend college, and perhaps even go on to professional school. The difference to the child is immeasurable but also considers the benefit to our community. Instead of spending untold amounts of money warehousing a child in prison, (who then exits an unemployable career criminal), the child becomes an accomplished young adult, contributing to society in a positive way.
Juvenile practice is not child’s play, and I believe every “juvie” turned around makes us all better.