Who is to blame for prison red ink? LBB, and those who believe them

This week, the Texas Legislative Budget Board's phony estimates regarding the cost of bills increasing prison sentences appear about to come home to roost. If legislators don't figure out LBB's numbers are bogus, the state can expect an ocean of red ink for which nobody's budgeted.

I mentioned Friday that HB 151, which increases the penalty from a misdemeanor to a felony for burglary of a vehicle, appears on Tuesday's House calendar. That bill would require building 500-700 new prison beds, but in his coverage on Sunday, the Statesman's Mike Ward repeats LBB's laughably false estimate that the bill would only cost the state $9 million per year. The real figure is more like $200-$350 million to build more prison units, depending on who is estimating.

I know from experience where LBB is getting their math wrong, because ACLU made exactly the same mistake a couple of years ago. Ultimately, then-Texas Criminal Justice Policy Council Director Tony Fabelo set us straight, and in the end of our discussions I'd accepted that his model was more valid than our simplistic approach. Now that his agency has been abolished, LBB apparently is reinventing the wheel, and without Fabelo's sage experience, they're giving the Legislature flat-out wrong information.

Here's how I learned this lesson. When preparing in 2002 to promote sentence restructuring for low-level, non-violent offenders last session, ACLU asked for Texas' prisoner database under the open records act. The data wasn't much good, but we were able to come up with rough estimates of how many inmates would be removed from the state system, say, if low-level drug possession became a misdemeanor instead of a state jail felony. This gets a little wonky, but it's important, so stay with me.

To estimate costs, we took the state's estimate for cost-per-prisoner, multiplied that by the number of folks whose sentences would be affected by the bills, and used the totals in our literature to say how much cost would be avoided. Fabelo learnedly quashed those numbers about mid-session, though, coming up with much lower savings estimates that became the official ones. He noted that the bulk of prison costs come from actually running the prisons, so you don't avoid spending money unless you start to mothball units. Since the projected additional prisoners coming in from other crimes would more than offset the difference, the cost avoidance did not translate directly into real dollars for the state.

Similarly, we were told, much to my chagrin at the time, penalty increases were routinely given no fiscal note, meaning the Legislature was told they didn't cost anything. That's because as long as Texas had extra prison space, the marginal cost of adding new prisoners wasn't much. Building new units or leasing extra space, Fabelo said, is what costs big bucks, and in 2003 we weren't quite there yet -- on paper, the prison system supposedly had a little excess capacity, so the marginal extra cost was low.

Pero, no mas. Now, even if Texas does nothing, current penalties require incarcerating thousands more inmates than the system can hold. Texas prisons are full to the brim. Reports Ward:

On Thursday, Texas prisons held 150,862 prisoners. Completely full is 151,500, officials said.

Though the Legislative Budget Board earlier predicted prisons would reach capacity in March, officials now say it will probably occur by sometime in May. Then, the state will have to begin leasing bunks in county jails and private prisons, more than 3,800 in the next two years.

Under a plan earlier endorsed by legislative leaders, officials want to avoid building new prisons by placing more nonviolent felons in community-based treatment and probation programs. They also hope to release on parole more medically incapacitated felons, release others on intensive-supervision programs and put others in new community-justice programs as a way to keep prison beds available for only those criminals who need to be there.

But if only a few of the enhancement bills pass into law, the additional felons coming into the system could easily exceed the projected savings in bunk space during the next five years, critics of the bills note.

Dead right. Tony Fabelo is gone, and apparently he never gave that same math lesson to LBB before he left. In the fiscal note for HB 151, LBB made the same error we did in 2003: they took the overall cost-per-prisoner for Texas prisons, multiplied that by the (probably lowballed) estimate for the number of new prisoners (500-700 inmates; Rep. Truitt said 500 at the hearing, while Ward estimated 700), and came up with $9.1 million - in the context of Texas' overincarceration crisis, an absurdly low estimate. Says LBB of HB 151:

Costs of incarceration by the Department of Criminal Justice are estimated on the basis of $33.78 per state jail inmate per day for state jail facilities, reflecting approximate costs of either operating facilities or contracting with other entities. No costs are included for state jail construction.

So, if state jails are full and we're not budgeting to build any more, where are they going to go? Mexico? Great advice guys. That's the kind of fuzzy math that got us into this mess.