A Petition in Behalf of the
Forsaken Children of Texas to the
Governor and the 76th Legislature
VII. THE LINK TO CRIME
A. Victims as Perpetrators
The severity of the abuse and neglect of children ranges along a continuum, as does the ability of children to overcome abuse and neglect. Likewise, the consequences to society range along a continuum, but one with many axes. Physical health, mental health, and learning ability are all compromised by child abuse and neglect.
These problems, however, largely affect the individual, and can to varying degrees be ignored by an indifferent society. Let us focus on a problem that cannot-the problem of crime. Of course, most abused and neglected children do not become criminal perpetrators. Nevertheless, many of today's victims of child abuse and neglect will be tomorrow's perpetrators of crime.
Common sense explains why. Imagine a puppy. Imagine that the puppy urinates on the floor. For this the puppy is beaten, thrown into a small pen, and physically and emotionally neglected. After months of such treatment, he is tossed onto the street to make his own way. Would you want to meet that dog in a dark alley? Brutalized puppies may become vicious dogs. Brutalized children may become vicious adults.
Medical science confirms common sense. A Texan is one of the country's foremost authorities on children and violence. Dr. Bruce Perry, in the Department of Psychiatry and Behavioral Sciences at the Baylor College of Medicine, has written extensively on why violence to children is later manifested as violence by children. Dr. Perry explains in detail how children undergo neurodevelopmental adaptations to violence that in turn produce violence. The importance of Dr. Perry's work to public policy cannot be overemphasized.
What Dr. Perry explains is that the human brain actually forms differently (hard wires differently) as a result of abuse and neglect to produce a human that responds out of that experience. Our capacity to reshape or redevelop the human brain later in life is limited. See B. Perry, Incubated in Terror: Neurodevelopmental Factors in the "Cycle of Violence," Children in a Violent Society (1997).
In one moving passage Dr. Perry explains the results-significantly not of abuse, but of neglect:
Lack of appropriate affective experience early in life and the resulting malorganization of attachment capabilities plays a major role in the current epidemic of senseless violence in the United States today . . . . So often, these acts are inhuman-throwing a 6-year-old boy out of a window because he refused to steal candy for you; planning, stalking, kidnapping, and torturing someone who "disrespected" you; hunting any homeless man to set on fire. Senseless-or are they senseless acts? The abilities to feel remorse, to be empathetic, to be sympathetic are all experience-based capabilities. If a child feels no emotional attachment to any human being, then one cannot expect any more remorse from him or her after killing a human than one would expect from someone who ran over a squirrel. These behaviors are not senseless; they are not beyond our understanding. They arise from children reflecting the world in which they have been raised.
Id. at 132-33. As any peace officer, prosecutor, or judge will tell you, they have looked into the eyes of such children.
Social science confirms medical science. The Texas Criminal Justice Policy Council in a report entitled "A Statewide Strategy for Reducing Youth Risk Factors Related to Criminality," released in August 1998, sets out the data and reasoning. Of special interest is its report of the work of the National Institute of Justice, a part of the U.S. Department of Justice. A longitudinal study sponsored by the NIJ tracked one large sample group of abused and neglected children and one large control group of children who had not been abused or neglected. The study matched the groups for age, gender, race, and socio-economic status, so most of both groups were poor.
The most recent update of the study--at a time when almost all of the sample group was twenty-six years old or older, reports that 49% of the abused and neglected children had been arrested--18% for a violent crime--compared with 38% of the control group--14% for a violent crime. The rates for both groups are high because the control group shared risk factors with the sample group such as poverty. Nevertheless, the sample group of abused and neglected children had significantly higher rates of arrest.
The study found that 26% of the abused and neglected children were arrested as juveniles compared to 17% of the comparison group, an increased likelihood of 53%. The study found that 29% of the abused and neglected children were arrested as adults compared to 21% of the comparison group, an increased likelihood of 38%. Perhaps equally significant, the sample group of abused and neglected children were younger at first arrest, committed nearly twice as many offenses, and were arrested more frequently.
This link between abuse and subsequent crime is commonly known. Now consider something less well known, but equally important: Neglect of children can be as devastating for society as abuse. The NIJ's study showed that neglected children's rates for arrest for violence were just as high as physically abused children. Just as a puppy can become vicious through beatings, a puppy can become vicious through neglect. For the reasons Dr. Perry explained, so can a child.
The NIJ offered three conclusions. CPS should intervene early. CPS should develop policies that recognize the high risk of neglect as well as abuse. CPS should not hesitate to remove children when appropriate. Implementing these three recommendations requires a strong CPS.
A special word needs to be said about sexual assault. When children are sexually victimized, the CPS response must be swift because what begins as fondling often ends in rape, and just as physical assault often begets physical assault, sexual assault often begets sexual assault. When children are sexually victimized, they are damaged in a complex way. The damage can be beyond our capacity to heal. Victims often become offenders. The Criminal Justice Policy Council discusses in its report some of the data relating to victims becoming offenders. CPS treats many victimized children in programs for the offenders that they have become. Treatment is expensive and cure is uncertain.
Finally, a word needs to be said about demographics. In an earlier report from the Criminal Justice Policy Council entitled "Top Priority: Preparing the Juvenile Justice System for the Twenty-First Century," released in March 1996, the Council detailed the demographic explosion of juveniles ahead for Texas. Recall that of all the states, Texas has the second largest number of children and the largest proportion of children to total population. If child abuse and neglect is linked first to juvenile crime and later to adult crime, as the Texas Criminal Justice Policy Council says, the sheer number of children in Texas make child abuse and neglect a serious public safety issue. We must seriously consider the recommendations of the National Institute of Justice.
B. Triage as Policy
1. Ineffective
Right now Texas does the exact opposite of what is recommended by the NIJ. Texas fights child abuse and neglect through a system of "triage," meaning that CPS applies its limited resources only to serious cases of abuse, rather than through a system of early intervention. The Texas approach is a public policy disaster for two different reasons.
First, triage is an ineffective way to fight child abuse and neglect. Investigation of the abuse or neglect of children is different in a critical way from the investigation of crimes against adults--adults can usually self-report. Children usually cannot. When an adult is the victim of a crime, generally speaking, the adult can and does pick up the phone and call the police. When a child is the victim of abuse, generally speaking, the child cannot pick up the phone and call CPS.
About 50% of victims are six or younger. About 30% of victims are three or younger. Almost 50% of the time the perpetrator is the mother. Almost 20% of the time, the father. Child abuse happens behind the closed doors of troubled families. What is discovered after an adequate investigation to be a serious case of child abuse or neglect may have come in the door at CPS as a referral from someone with no idea of how serious the ongoing abuse or neglect is. Victoria's case illustrates why triage cannot work in cases of child abuse.
Because of the inability of children to self-report and demand protection, Texas Family Code § 261.301(a) mandates that CPS make a "prompt and thorough investigation of a report of child abuse or neglect allegedly committed by a person responsible for a child's care, custody or welfare." But while formally declaring "prompt and thorough investigations" to be state law, the Legislature has by its appropriations inadvertently sent a different message to CPS--triage and do the best you can.
The Texas Sunset Advisory Commission Staff in 1996 finally just flat came out and advocated a change in the law as a recommendation to "improve" service:
Improve [CPS] Ability to Protect Children and Provide Services.
[CPS] must thoroughly investigate all reports of child abuse or neglect that meet statutory definitions, regardless of severity. Full investigations of less serious problems divert already limited staff resources from serious cases of abuse and from service delivery. Child welfare experts recommend a more flexible approach. Many states have adopted a system where full investigations are reserved for serious cases while social service efforts, such as family assessment or crisis intervention, are used to deal with less serious incidents. This approach could replace Texas' "one size fits all" response to reports of abuse.
Recommendation: Authorize [CPS] to establish a flexible response system, starting with a pilot program, to address reports of child abuse and neglect. The system should provide for full investigation of serious reports of abuse or neglect. For less serious reports, [CPS] would quickly assess the family situation and provide social services to the child and affected family without involving them in a full-blown, adversarial investigation.
Texas Sunset Advisory Commission Staff Report on the Department of Protective and Regulatory Services (1996)(emphasis added). The Legislature implemented the recommendation for a pilot project in Texas Family Code § 261.3015. The pilot project is underway in Bexar County.
The Sunset Commission's recommendation is within the mainstream of present national experimentation. The Center for the Future of Children recently released a report that summarized the problem and discussed approaches like those of the Sunset Commission. What the Center says describes Texas:
[L]ow substantiation rates also reflect the fact that CPS agencies with limited resources have raised the threshold of seriousness that is required before a case is substantiated and opened for services. In one survey, 45% of state administrators said their agencies were using "triage policies" and did not even investigate reports that would have been pursued five years earlier. As a result, cases involving only moderate risk are less likely to be investigated or assisted, even though families whose problems are not severe or entrenched could benefit from services and perhaps avert more serious maltreatment.
The Future of Children: Protecting Children from Abuse and Neglect, Center for the Future of Children at 10 (1998).
The Center went on to describe as a possible solution a "differentiated response," which is what the Sunset Commission staff describes as a "flexible approach." While the Center was optimistic about various advantages of the "differentiated response," the Center hit the nail on the head when it conceded that "the success of this approach depends upon the ability of hot line screeners to judge the factors involved in a given case." Id. at 11. Because children cannot self-report, however, screeners depend upon reports from adults--teachers, doctors, police officers, neighbors. Those adults may not have much information. Indeed, child protection depends mostly upon caring adults with limited evidence but a strong sense that something is very wrong with a child. To rule out child abuse or neglect, children have to be seen. For children to be seen, there have to be investigators to see them.
The Sunset Commission's recommendation has much to be said for it as a way to organize a response after an assessment. One size should not fit all. CPS should tailor its response to the problem in the family. But a tailor cannot cut a coat to fit without measuring the subject. And when a tailor cuts a coat, if the tailor wants the coat to fit, the cut must be based upon the size of the subject and not the cost of the cloth.
What is critical to understand is that an increasingly tighter triage is a policy choice, not a policy inevitability. While triage is a growing national practice, the other big five states still do better than Texas. Moreover, triage has not always been the Texas policy. Until about 1985, the first year of our look back, Texas CPS had sufficient resources to respond to a category of calls labeled Priority 3, which were calls of general concern about child welfare. Those calls are now labeled Priority 0. As the next section explains, this policy choice is not a wise one.
2. Unwise
Even if triage or a "flexible response" worked in the sense of sorting the most serious from the less serious, proceeding to fight child abuse on this basis is unwise, as the NIJ makes clear. Indeed, if Texas continues with this approach, Texas will be repeating the same mistake with child protection that it made with adult crime in the 1970s and 1980s and with juvenile crime in the early 1990s--a response scaled in the wrong direction. A triage approach to child abuse and neglect ignores what we have learned--the hard way--about how to fight crime: You must attack the problem vigorously when it is small and manageable.
Early intervention has been described as the "broken window" theory of crime fighting. The theory goes that a small crime is to a community like a broken window is to a building. If a broken window is not promptly and effectively repaired, then more windows are broken, and the building is ultimately vandalized. If a crime is not promptly and effectively addressed, then more crimes follow, and the community is ultimately brutalized. Proponents of the broken-window theory also point out that perpetrators of crime are dealt with more effectively for less money when they are dealt with early.
Child abuse and neglect is no different than any other kind of crime. If less serious abuse and neglect is not dealt with, it grows worse. And like the criminal justice system, the child protection system works most effectively for the least money when problems are small. If a family can be helped, it can be helped most effectively for the least money when problems are still manageable. If a family cannot be helped, and a child must be removed from the family, CPS can most effectively place the child at the least cost to the state if the child is removed at the first appropriate point, before the damage to the child has become overwhelming--for example, as in the case of Victoria.
We may never know what Victoria's potential would have been had there been early intervention in her life. Intervention at any point may have been costly. But delayed intervention has been even costlier. Everything being done for Victoria is extraordinarily difficult. Victoria's foster care costs CPS about $31,000 a year. MHMR pays for special services costing $13,000 a year. In addition, Victoria receives other publicly-paid services such as special education from her public school. Early intervention would have been both more effective and cheaper.
If Texas continues to triage instead of pursuing early intervention, we are not serving our self-interest. If the Texas "flexible response" to child abuse and neglect becomes just an Orwellian way of saying that Texas does not respond to the problems of children unless and until there are ripped hymens or broken bones, then Texas will have created for itself an array of difficult and expensive problems both in terms of caring for the children who are victims of child abuse or neglect and in terms of the public safety risks those children will present, first as juvenile offenders and later as adult offenders.
C. Prevention as Policy
While early intervention is preferable to triage, we should take action at a stage even before early intervention. Go back to the very origin of the word "triage." Triage is what doctors do on battlefields when the problems in front of them overwhelm their ability to treat. Triage is not the medical treatment of choice. Early intervention is not even the medical treatment of choice. Prevention is the medical treatment of choice-get kids off the battlefield. Prevention is more effective and cheaper than even early intervention and comes before the damage.
In a paper tracing the link between child abuse and neglect and the actual development of the human brain, the Ounce of Prevention Fund explains why prevention is important:
Children who are abused or severely neglected are at extremely high risk of developing emotional, behavioral, social, and intellectual disabilities. By the time the child is identified as having been neglected or abused, these problems have already begun to develop. Greater attention must be given to preventing maltreatment before it starts.
Starting Smart, How Early Experiences Affect Brain Development at 5 (1996 Ounce of Prevention Fund). No one sums up the advantages of an ounce of prevention over a pound of cure better than Judge Jim Farris, Senior District Judge from Jefferson County and President of Texas CASA: "We can put our money in the play pen, or we can put our money in the state pen."
Judge Farris has identified our choice, yet we continue to pay for prisons instead of prevention. Even though it is more expensive, the pound of cure continues to outsell the ounce of prevention because of the dilemma of today or tomorrow. Do you address the problems of today or the problems of tomorrow? Usually, we choose to address the problems of today. To begin with, they are here. Then once we buy the pound of cure, we usually have no money left for the ounce of prevention. And, in any event, tomorrow will be someone else's responsibility. Of course, every time we choose today instead of tomorrow we compound the dilemma for the future. The blessing of our budget surplus is that the 76th Legislature will have a unique opportunity to solve the dilemma by paying for both today and tomorrow.
Prisons are for today. Prevention is for tomorrow. Proponents of prisons, however, argue that prisons are as much prevention as cure because prisons deter future crime both by specific deterrence (locking away repeat offenders) and general deterrence (dissuading others from offending). Relying upon prisons for specific deterrence has two big problems. First, under this policy, we allow crimes to happen until the criminal is caught, then we lock up the criminal so he cannot commit more crimes. Contrast this to prevention, which is designed to prevent any crime. Second, even if you are willing to suffer all the crimes before apprehension, because of the number of potential offenders, we cannot afford to rely upon a policy of specific deterrence.
Do the math. Texas has less than 150,000 prison beds. Each bed costs a fortune to build and operate. Texas has 900,000 children at risk for abuse and neglect. Texas has 1.5 million children in poverty. Texas has 5.5 million children. Texas cannot afford to beat crime by locking up one criminal at a time.
Setting aside the expense, relying upon prisons for general deterrence has one big problem. While prisons undoubtedly deter a great number of people from committing crimes, there are also a great number of people for whom the threat of prison is no deterrent because they lack the intellectual or emotional ability to learn to respond to rules in a way to avoid punishment, or because their lives are so damaged that prison is not a punishment. One such group is abused and neglected children who have matured without intervention into adults. Recall Dr. Perry's work. For these adults, general deterrence has no meaning. Just as cutting out the lung cancer in Jim does not deter cancer cells from metastasizing in Joe, locking Jim up does not deter the Joe whose mind is disturbed or disabled from abuse or neglect or whose life is so damaged the structure and safety of prison looks good.
After you build your first prison, the general deterrence value of each new cell is increasingly marginal. Texas has one of the largest prisons in the world. Texas has one of the highest incarceration rates in the world. At this point, we can build prisons faster and faster until the end of Creation, and we will have no more to show for it than small, temporary decreases in the crime rate, which come primarily from preventing known criminals from re-offending. The ever-growing population will soon overtake our gains, unless we have spent the money to ensure that it is a health population.
In short, prevention is essential. Fighting crime by increasing spending on probation, prisons, and parole, while making minimal efforts to address the problems of 900,000 children at risk for abuse and neglect, is the equivalent of fighting lung cancer by increasing spending for surgery, radiation, and chemotherapy, while making minimal efforts to address the problem of 900,000 children who are smoking cigarettes. Crime wins; cancer wins. Texas loses.
