Senate committee: Drug courts work, other suggestions?

Drug courts work; let's do more of them. That's one of the unanimous conclusions reached by the Texas Senate Criminal Justice Committee in their massive interim report (pdf), pubished this week in preparation for the 79th Texas legislative session beginning January 11. (I'm going to blog about several of the more interesting sections of this report in chunks, since it's so long.)

As Grits reported yesterday, the committee has thoroughly identified the sources of the state's overincerceration crisis -- in the big picture, too many going in, often via probation and parole revocations, and not enough folks leaving the system. The committee and their staff deserve a great deal of credit for producing an honest accounting of these difficult topics -- they acknowledge our difficult situation and the need for tough decisions in a way that hasn't happened in Texas' criminal justice arena in at least a decade.

On their face, though, the solutions proposed don't go far enough. Increasing sentences for every kind of crime imaginable (Texas has created 1,941 separate felonies, as of the 78th session) is a biennial legislative pastime. In the past, the Legislative Budget Board has refused to place a cost number on those bills, allowing their passage without adding anything to the budget to pay for them! During those same sessions, when every new Republican had run on no-new-taxes, nearly any non-essential bill that "cost something" automatically died. But now this politically expedient, completely bipartisan hobby is running up against budget reality, and finally it appears the relevant committees in both chambers, at least, understand they can't keep doing that.

That would stop the bleeding, and keep the rate of prison population increase from expanding even further. But we're already scheduled to overrun Texas' prison system given the current laws. What the interim report doesn't do is actually propose rolling back some of these over-long sentences, mean-spirited enhancements, and vindictive probation requirements that cause half of those on community supervision wind up in prison.

Of the solutions suggested under the second Interim Charge, which deals broadly with Texas' community supervision programs, the only new options with promise for relieving pressure on the system on a large scale are mandating "early release" for successful probationers (an idea killed by prosecutors in the waning days of the 2003 session), and expanding the use of "drug courts."

The section supporting drug courts really sounds promising; they think it's a good idea, they want to do it, and if their statistics are correct it'll be better than the status quo.

HB 1287 in the 77th Texas Legislature (2001) required "all counties with a population over five hundred and fifty thousand to establish a drug court by September 1, 2002, unless they were unable to obtain federal funding specifically for the operation of a drug court or the legislature did not appropriate money specifically for that purpose. The 2000 United States census indicated that Bexar County, Dallas County, El Paso County, Harris County, Hidalgo County, Tarrant County, and Travis County fell within the intent of the bill. The 2002 Census added Collin County to those impacted by the bill. At this time, twenty-four drug courts, associated with adult justice systems, have been established in sixteen counties, including all of the above, with the exception of Hidalgo."

Grits would be remiss not to add that federal Byrne grant money can be spent on drug courts, if the Governor chose to do that instead of finance corrupt drug task forces.

In any event, the results from Texas drug courts do look encouraging. The rearrest rate for the drug court in Dallas was 10.2% versus a comparison group of non-participants of 51%. In Jefferson County, 26.2% in drug courts were rearrested compared to 43.7% who weren't. In Travis County, 24.5% of drug court graduates were rearrested, and 45.5% in a comparison group. If those results are replicable, drug courts would be a real improvement.

SMU evaluated the cost benefit analysis of the Dallas County DIVERT drug court. "The analysis revealed that for every dollar spent on an offender's drug treatment through divert, the community saved nine dollars and forty-three cents ($9.43) over a forty (40) month period."

But you've gotta spend that dollar. The Senate report notes that "Drug courts in Texas have grown from three in FY 2002 to the current thirty three with another ten in the planning stages. However, funding has not grown beyond the legislatively appropriated seven hundred and fifty thousand dollars ($750,000) plus the over three million dollars ($3 million) in grant funds available through the Governor's Criminal Justice Division" and the Texas Department of Criminal Justice.

There's much more than $3 million available in Byrne grant funds, even after the recent cuts. Spending that money on drug courts instead of drug task forces makes a lot of since instead of busting endlessly more low-level users the system can't handle.

Even so, drug courts aren't a panacea. They're relatively expensive compared to a regular judge's docket, and some folks just aren't going to become drug free, either because they're addicted or because they just don't want to. More to the point, to impact the system at a macro-level, that is, to stop the overall increase, would require creating drug courts on a massive scale statewide. Maybe it could be done if the state diverted all its Byrne grant funds to the cause, but even then it seems like, from a pure mathematical perspective, they can't be the only solution.

At the end of the day, the reform that unlocks the conundrum -- indeed the unacknowledged elephant in the room throughout the Senate Committee's report -- would be to actually lower the criminal penalties for low-level drug possession crimes, as Texas LULAC has asked for, and as HB 2316 by Reps Harold Dutton and Jack Stick proposed in 2003. Right now, the lowest level charge for possession of cocaine and heroin is a state jail felony, meaning the state picks up the tab for all incarceration costs. By lowering that charge to a Class A misdemeanor, any incarceration would happen in the county jail. That would save the state real money.

Of course, regular Grits readers know the county jails are full, too, so an additional reform would be required to make it work: lowering the lowest level marijuana possession charge from a Class B misdemeanor to a Class C, as proposed in HB 715 last session. Class B misdemeanors can result in county jail time, while Class C's get you the equivalent of a traffic ticket. That turns marijuana busts locally from a revenue drainer to a revenue generator, and there's a lot of them, a lot more than coke and heroin users.

Between them, those two reforms would take pressure off both the state and county systems, and make it clear that individual drug use is a local problem that requires local solutions. Texas LULAC was wise to make them the centerpiece of their criminal justice reform proposals (pdf).

UPDATE (12-5): How good is Dallas' drug court?

A friend with firsthand knowledge of the Dallas drug court expressed doubt via email at the recidivism figures cited by the Senate Criminal Justice Committee Interim Report quoted above. Citing a 2003 study by the now-defunct Criminal Justice Policy Council, the committee said the rearrest rate for people diverted to drug court in Dallas was 10.2% versus a comparison group of non-participants of 51%.

Dallas' figures did seem anomalous, even among other drug courts in the state. In Jefferson County, 26.2% in drug courts were rearrested compared to 43.7% who weren't. In Travis County, 24.5% of drug court graduates were rearrested, and 45.5% in a comparison group. Even if Dallas' figures are wrong, numbers from the other drug courts seem promising and would likely have led the committee to the same conclusion, in any event.

Governor Perry abolished the Criminal Justice Policy Council with a line item veto after the 78th legislative session was over, so that study won't be updated again next year. I'll keep an eye out for better Dallas drug court statistics, though, and if any Grits reader knows of some, give me a shout.