Thursday, May 11, 2006

Revisiting the blame game for overincarceration at the Harris County Jail

While I was out Kuff further covered the response in Houston to state demands to lease new beds because of overcrowding at the Harris County Jail, tackling the question, "Who is to blame?" Kuff lays fault with Sheriff Tommy Thomas, and in a way he's right since the Sheriff along with the commissioners court have failed to hire enough guards to open all available units. Harris County right now has enough unused jail beds to house prisoners, if they only hired enough guards to staff the facilities.

But it's also correct, as I've argued before, that the District Attorney and local judges are to blame - indeed, there's plenty of blame to go around, if that's what you're looking to do. Regular readers know I prefer to focus on solutions, but Kuff said he didn't quite understand the role of the judiciary in this mess so I'll bet others are confused, too. Let's be clear.

In 2003, Texas passed HB 2668 requiring judges to sentence defendants to probation and drug treatment instead of incarceration in a so-called "state jail" facility for the lowest level drug possession offense - e.g., less than a sugar packet full of powder. The goal was to shift up to 4,000 non-violent offenders per year out of prison and onto probation, saving tens of millions of dollars and helping avoid the state's own overcrowding crisis. So far so good.

But in Harris County, which prosecutes about half of all such offenders statewide, judges found a loophole and prosecutors routinely and aggressively push for it. State law allows judges to order county jail time as a condition of felony probation. Usually county jails are used as punishment for misdemeanors and for defendants awaiting trial.

So even though they "probate" drug users' sentences which diverts them from state prisons, judges instead are sentencing those probationers to the county jail where Harris County taxpayers pick up the tab. They don't have to do that - hardly anybody else does, and that's what makes the Harris County overincarceration crisis a self-inflicted wound. They'd more than
make up the 500 people they're being told to lease space for if they just stopped sentencing probationers unnecessarily to jail time.

So both claims are right. Either solution would have resolved the current crisis - hiring more guards or judges abiding by legislative intent regarding when to jail low-level drug users. But if you think, as I do, that we're incarcerating too many nonviolent offenders already, then sentencing drug users to probation makes more sense then endlessly opening more jail beds.


Anonymous said...

I've heard a different story regarding probation and incarceration from actual probation officers on the ground which is offenders are choosing a few months in jail rather than taking on the monthly fees and added time of probation. For example, if an offender is sentenced for the same offense you mentioned, the offender has chosen to do six months probation (with good conduct time it becomes 3 months) rather than 3 years probation with the monthly mandatory probation fees, possible cost for the drug treatment classes and the inconvenience of reporting to a probation officer every month.

Gritsforbreakfast said...

I'd be curious to hear from any Houston criminal defense attorneys about that, if any are reading, because I've heard stories of prosecutors pushing for this condition. It's not my understanding that people are choosing this instead of probation for state jail felony drug possession, but that it's being tacked on as an extra, punitive probation condition in addition to their regular probation term.

That said, I hear frequent complaints that Harris County's probation system is designed to maximize failure and the ease of revoking defendants so that it's nearly impossible for many people to successfully complete probation. To the extent that's true, a decision like you describe might be rational for the defendant, but it'd still be a sign of a broken system.

Anonymous said...

I wholeheartedly agree with you that our system is broken.
Additionally, from communicating with probation officers in the system, they say their probation clients regularly inform them that if they were aware, before accepting probation at time of sentencing, what the total monetary cost of probation equaled out to, they would have chosen jail time instead. We are talking about probation clients who live paycheck to paycheck and have their paychecks accounted for on payday. Many are not eligible for reduced fees because they make just enough income consequently paying approximately $100 a month is extremely taxing on them and their family.

Anonymous said...

The Harris Co jail is like some a debtors prison in ye old england.
Probationers have to pay this fine, that fee, and perform slave labor at judges and other county politicians pet projects (for free). When the probationer can't pay up on their debt( flipping burgers don't pay much), it's off to jail they go