Fall election gains put Republicans in control of 25 state legislatures and 29 governor's offices, and many have pledged not to raise taxes even as they face budget shortfalls. Reforming laws to send fewer low-level offenders to state prison or reduce their sentences is a more politically palatable way to save money than cutting spending for schools or health care programs.As you might expect,"Backers of the state measures almost always refer to Texas, which began implementing sentencing changes six years ago." But it's pretty clear that, without further policy reforms, the effect of those 2007 reforms have pretty much played out and incarceration will increase if more resources aren't funneled to diversion programs.
"Conservatives are about limited government, lower taxes and personal responsibility. And the reforms that we advocate advance those principles," said Marc Levin of the Center for Effective Justice at the Texas Public Policy Foundation. "We're not saying conservatives were wrong 30 years ago. But the pendulum swung too far."
The proposals vary by state, but the hallmarks include ways to reduce sentences for lower-level offenders, direct some offenders to alternative sentencing programs, give judges more sentencing discretion and smooth the transition for released prisoners. In many states, the Republican measures parallel Democratic efforts that stalled long ago.
The push to reform sentencing laws has forged uneasy alliances between law-and-order politicians and activists who have long argued that many laws went too far.
Having done a lot of work on front-end diversions in 2005 and 2007, some of the biggest cost-saving corrections bills considered in Texas this legislative session concentrate on the parole side. Either way: Diverting prisoners on the front end or the back end saves money.
Over at the prosecutors' association, these efforts have been greeted with snide rhetoric about "new math," joking that in one case, "1/4 of 90 = 22.5 = 7," meaning that, with good-time credit, a nonviolent defendant sentenced to 90 years is eligible for parole in 7. In response, TDCAA lobbyist Shannon Edmonds told prosecutors that: "I just attended a legislative symposium at which a coalition of liberal (hug-a-thug) and conservative (save-a-buck) groups advocated restoring the old mandatory supervision laws, which would allow guys like Mr. 90 Years to be entitled to early release after a few years." (That's not a precisely accurate characterization of the proposed legislation, but let's set that aside for the moment.)
Critics of this "new math" (which is really longstanding math) usually tell us they prefer "Truth in Sentencing," meaning that offenders should do every day, or close to it, of even the longest sentences assigned for nonviolent offenses. But seldom if ever do such critics ask the bigger question: Why is there no "truth in sentencing"? The answer isn't the overarching power of liberals on Rick Perry's parole board, it's that reality and money ultimately trump ideology and for many years Texas has never had truth in sentencing budgets. Whenever the state increases criminal penalties, no matter how many new people would be incarcerated, the Legislative Budget Board fails to require them to account for the extra cost in the budget. So every session the Lege votes for "tuffer" laws they never pay for, then wonder why the budget is bloated and the prisons are full.
Over time, dozens such bills pass each session (the Legislature in 2009 created or "enhanced" 59 felonies, according to the parole board's official count), creating an inexorable, one-way ratchet. Meanwhile, years-old theft thresholds apply to ever-smaller baskets of goods and antiquated drug laws focus on incarceration instead of treatment and/or diversion for small-time users, which is where law enforcement focuses arrests when they can't figure out how to catch the Big Fish.
Legislators pass such "enhancements" and prosecutors sometimes seek ridiculously long sentences for petty crimes to "send a message," we're routinely told. But that's revealing terminology: It's really just for show - a form of demagoguery aimed more at public relations than public safety. In reality, the state cannot afford to incarcerate someone for 90 years for burglary or possession of a few grams of meth, even if statutes have been "enhanced" to routinely allow such sentences.
That's why, as a practical matter, the parole board must act as a release valve to mitigate politicized local sentencing decisions. Otherwise, there won't be enough room to incarcerate more serious, dangerous offenders. If the Lege were required to pay as they go, increasing TDCJ's budget at the margins whenever they pass laws sending more prisoners there, Texas could afford to have everyone serve their full sentence. But the politics of mass incarceration, until now, have encouraged pols in both parties to pretend prison is both free and a universal, one-size fits all solution to every social problem. That's not sustainable any more.
Texas releases some 72,000 people annually from prison, only about half of them having served their full sentence - that's a population larger than the city of Harlingen. So complaints that measures currently under consideration might create a "revolving door" ignore the reality that we've already got one, with no money available to pay for longer incarceration stints: The question now for Texas is not whether to prioritize who to incarcerate, but how. And as this AP coverage shows, we're not the only state facing that quandary.