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Proper Headline--Convicted Sex Offender Refuses to Participate in Treatment, Therefore TYC Should Let Him Go, Right?

Confession a condition for release from TYC facilities

But inmate insists he's innocent; saying he's not could derail appeal

08:32 AM CST on Thursday, November 22, 2007
By HOLLY BECKA / The Dallas Morning News

Texas Youth Commission inmate Airick Browning finds himself in a no-win situation.

The McKinney youth insists he's innocent of the attempted rape charge that landed him in TYC, and his case is on appeal. But the only way he can go home soon is to confess to the crime as part of his TYC treatment.

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If he confesses, he won't receive immunity � so his remarks could derail his appeal.

His Catch-22 is the focus of a legal motion filed late Monday in federal court. His lawyers have asked a federal judge in Austin to stop TYC from forcing 16-year-old Airick to confess, saying it violates his constitutional right against self-incrimination. They've also asked for his immediate release from the TYC facility in Mart.

"From talking with him and other children in TYC, it was pretty apparent that this policy of coercing confessions out of children was unconstitutional," said Scott Medlock, an attorney for the Texas Civil Rights Project, which is representing Airick and other inmates in a pending class-action lawsuit against TYC.

"It's a big problem to force kids to give up their rights to go through the treatment that TYC is required to provide," he said.

A hearing hasn't been scheduled. If the judge agrees that the practice is unconstitutional, the ruling could affect other TYC inmates whose cases also are on appeal. That number is unknown because TYC does not track those inmates as a group. It records appellate information only in each youth's individual file.

TYC spokesman Jim Hurley said the agency couldn't comment about anyone in the agency's custody or pending litigation. The lawyer representing TYC also declined to comment.

Jeffrey Kahn, an assistant professor of constitutional law at Southern Methodist University, said that, as a rule, the government cannot establish unconstitutional conditions for receipt of a government benefit.

"For example, your entitlement to Social Security benefits can't depend on how you exercise your right to vote. A particular tax credit or public housing or police protection can't be conditioned on promising to hold certain religious beliefs," said Dr. Kahn, who isn't familiar with Airick's case and could comment only in general

Because TYC's charge is to rehabilitate inmates � not punish them like in the adult system � juveniles must complete academic, behavioral and correctional therapy objectives to be released.

Each category has numbered steps, called phases, that youths must attain. Setbacks can occur if an inmate has disciplinary problems. Inmates have complained that TYC guards and staffers retaliate against them by lodging disciplinary actions that lengthen their confinement.

TYC has been working to overhaul its correctional therapy program since the Texas Legislature approved sweeping reforms of the agency after an abuse scandal. The agency plans to roll out the new treatment program Dec. 1 at its Beaumont unit and then slowly implement it elsewhere, said Tim Savoy, a TYC spokesman.

Mr. Savoy said that requiring inmates whose cases were on appeal to confess their guilt "was a recognized problem" with the agency's old "resocialization" treatment program.

"The new treatment program will not require them to admit guilt if their case is on appeal," Mr. Savoy said.

Airick's case is an example of how the agency is grappling with the issue until the new program is implemented.

The 16-year-old completed his academic and behavioral objectives, earning a GED and the distinction of valedictorian of his TYC class. He hasn't committed any major disciplinary violations, according to the motion filed on his behalf.

Airick "is frequently asked by TYC staff to assist with work in the facility, such as serving other children food," the court filing noted. He "was even designated by TYC to distribute grievance forms to other children, an important position of trust."

He's reached his minimum-length-of-stay requirement, but he's also required to complete TYC's sex offender treatment program because of the nature of his alleged crime. Yet TYC won't allow Airick to enroll in the program because he won't admit he committed the crime.

"Airick has done his part by progressing through the academic and behavioral components of the TYC program, and, but for this confession issue, he would be out with his family for Thanksgiving," Mr. Medlock said.

He noted that the Supreme Court has ruled that an adult inmate's decision not to participate in a treatment program would neither extend his term of incarceration nor affect parole eligibility. He said he's unaware of a similar case about a juvenile inmate.

Despite the Catch-22, the youth commission notified Airick's mother, Dana Brockway, that her son would be released Nov. 14. At that time, she was elated.

"It's a bittersweet moment, but nonetheless I would rather fight [for his name to be cleared] with him home ... versus the other!" she said in an e-mail.

Shortly thereafter, Ms. Brockway learned that Airick's release would be delayed because TYC was still working out his parole conditions, which included him registering as a sex offender.

Airick had signed the registration documents and was told that he would have to see a parole officer and attend outpatient sex offender treatment, according to court records.

But then TYC decided that it could not release Airick because he had not finished its treatment program.

"TYC will not allow [Airick] to participate further in its rehabilitation programs because he is asserting his Fifth Amendment rights," his lawyers said in the court filing. "As such, the plans for release were canceled."

Ms. Brockway said her family's faith is getting them though the ordeal.

"Now we're just counting down the days � literally marking them down � until visitation," she said. "Thanksgiving Day, we'll be there. We'll buy the hamburger that they put in the vending machine ... and say our prayers and chalk it up to how it is."

Browning case
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