Last summer, when tough-on-crime Texas closed its first prison ever, legislative leaders were jubilant over downsizing one of the nation's largest corrections systems by more than 1,000 beds. It was a first big step, they said, toward saving taxpayers tens of millions of dollars in coming years.At least TDCJ didn't add additional beds by contracting with private prisons, which was an option the Lege had left open. But cuts to probation programming made it all but inevitable that recent reductions in the incarceration rate won't be replicated over the next biennium. Even the Legislative Budget Board predicts (pdf) the number of Texas prisoners will rise beyond capacity before the 83rd session in 2013.
Meanwhile, prison officials were adding bunks to the other 111 state prisons, which house more than 156,000 convicts. By last week, Texas had about 2,000 more prison bunks than it did a year ago, thanks to a state law that requires the prison system to maintain some excess capacity as a cushion against crowding.
Because those beds will likely fill up — empty prison beds almost always do — Texas taxpayers could be in line for some whopping additional costs come 2013.
The problem, as regular Grits readers are well aware, is that the state incarcerates too many people for penny ante offenses. Virtually nothing is a misdemeanor anymore. Everything is a felony, or else somebody, somewhere thinks it should be. As Ward's sources put it:
"This is the adult discussion that the Legislature is going to have to have," said Scott Medlock, an Austin attorney with the Texas Civil Rights Project. "Ultimately, the problem is that we're incarcerating too many people for too long."I'm actually not sure it's true those things "would be unpopular politically." That's an assumption among the political class, but given the bipartisan tuff-on-crime consensus it's a largely untested one, and recent polling doesn't support it. In a Texas Tribune poll last year, 66% of respondents placed prisons last when asked to rank budget items based on "how important it is to you that their current funding levels are preserved." In the same poll, just 2% of Texans ranked "crime and drugs" as their top priority.
State Sen. John Whitmire, a Houston Democrat who for more than a decade has headed the committee that oversees prisons, echoes the sentiment:
"At some point, because of the costs, we have to recognize that we don't need to waste one dollar incarcerating one person that doesn't really need to be behind bars. We're at that point."
To significantly reduce the number of people in prison, state laws could be changed to reduce penalties for some crimes or to limit local judges' discretion to mete out long prison sentences for nonviolent crimes — both of which would be unpopular politically.
We can see empirically that the "tuff on crime" hammer is losing some of its heft. At the Lege, few critics besides police unions and prosecutors oppose reform bills: Most of the public input legislators receive on reform legislation is supportive, including from traditionally conservative groups. The smart-on-crime approach also dovetails nicely with the desire among movement conservatives to cut the budget: "There's nothing the state can do to limit its costs (for prisons) if we keep sending more and more people to prison, if we keep expanding the capacity," Marc Levin of the Texas Public Policy Foundation told the paper.
You can further see via election outcomes that "soft on crime" accusations are losing their political potency. After GOP House Corrections Committee Chairmen Ray Allen and Jerry Madden, consecutively, passed reform legislation to reduce incarceration rates, both were challenged by opponents who tried to label them soft on crime because of reform bills they passed, but both were able to win reelection. (In the interest of full disclosure: I helped Allen's campaign with opposition research in that 2004 race, one of my last clients as a professional opposition researcher.) Governor Perry has endorsed radical cuts to the prison budget and signed a raft of reform legislation that would make a Massachusetts liberal blush, but none of that has hurt him at all (his problems lie in other areas). And Newt Gingrich, the current leader in GOP primary polling, has backtracked from earlier views to endorse the Right on Crime campaign, whose guiding principles call for downsizing the justice system. (I'd love to see somebody ask him about that in a campaign debate.)
So why should we assume that smart-on-crime incarceration reforms will be "unpopular politically"? What spotty evidence we have, IMO, points in the other direction.
There are many different ways to reduce prion numbers, but Ward identified a few being seriously discussed behind the scenes:
Among other budget-savings proposals being pushed:
• Parole to their home countries some of the 8,000 nonviolent criminals who are not U.S. citizens, a plan that was enacted into law last spring but has yet to see significant results.
• Allow counties to benefit financially for sending fewer convicts to state prison, through new state funding for local corrections programs that advocates insist would be less costly for taxpayers — and probably more effective in cutting recidivism. A bill to do this died in the Legislature last spring.
• Reform sentencing laws, and limit the amount of prison time a judge can give some nonviolent offenders. Past proposals for sentencing guidelines have died in previous legislative sessions amid opposition from elected judges and prosecutors who say it would illegally limit their authority to dispense justice based on community mores.
While more than a dozen other states have recently enacted or are seriously considering such changes, legislative leaders say they are not sure Texas is quite ready to go along.Again, I don't see why not. It's true that the Texas Senate this year was a killing field for reform legislation, while the session before quite a few reform bills died because of "chubbing" in the House over voter ID. And it's equally true that police unions and prosecutors carry disproportionate weight in the process. Not to mention, the task becomes more difficult from losing long-time reform champions like Jerry Madden, Pete Gallego, and Scott Hochberg from the Lege.
But desperate times call for desperate measures and if this is the only way to cut the budget, will all the new Tea-Party aligned conservatives really vote against it? Debates over TDCJ's budget are fundamentally constrained by reality in a way that election rhetoric is decidedly not. You can't reduce health care funding by 9 figures without reducing the number of patients served. Reducing food budgets at a time when food costs are rising requires reducing quantity, quality or else the number of people eating. Cuts to diversion programs that cost a few dollars per day don't (or shouldn't) count as savings when they result in more revocations to prison for probationers and parolees, boosting their (average) cost to $44 per day. These are immutable facts. When a judge or jury sends a prisoner to TDCJ - until they serve their full sentence or are released by the parole board - they must be fed, clothed and supervised. When they are sick they must receive healthcare. When they are elderly and disabled they receive the equivalent of nursing-home care. Those things cost money.
We have passed the point where TDCJ can find savings by cutting "waste." The only way to reduce the budget further is to change policies. But for whatever reason, in 2011 that wasn't seriously on the table. As described by a Grits headline summing up the session: "Texas budget ditches 'smart on crime' approach, reverting to old priorities."
It should be mentioned that the list of suggestions offered by Ward for reducing the inmate population is far from exhaustive. Grits can imagine many other ways not suggested in the story:
- Index property offense thresholds to inflation
- Ratchet down drug offenses by one category across the board
- Relieve the parole board of discretion to disregard earned-time credits
- Boost funding for state hospitals, community-based mental health treatment
- Reform 'fiscal note' process to reflect actual cost of new crimes, enhancements in state budget
- Boost parole release rates at the margins for low-risk offenders
- Give credit for time supervised on parole on certain offenses
- Repeal post-'93 "boutique" enhancements passed on behalf of special interests
- Enact a moratorium, explicit or de facto, on creating new crimes or "enhancing" existing ones
- Expand use of medical parole for elderly, sick inmates who pose little threat
- Spend at least 1% of juvenile justice funding on programs for at-risk youth
- Require inmates set to be released on “flat discharge” for serving their entire sentence to be placed in a community-based, supervised program for nine months to decrease their likelihood of recidivating
- Expand mandatory probation for first-offense drug felony to 1-4 grams of a controlled substance
- Expand and for some offenders mandate use of intermediate sanctions
- Cap time in prison for property and drug offenders revoked on technical violations to no longer than 12 months
- Reward successful probationers with early termination of probation or dismissal of their case (an even stronger incentive because it reduces collateral consequences).
- Reduce reliance on life and life-without-parole sentences to avoid high future costs.