Thursday, January 31, 2013

Ham Sandwich Nation: Prosecution in Texas is a growth industry

Crime is at the lowest rate in two generations but Texas can't stop sending more people to prison

A report (pdf) issued this week by the Texas Legislative Budget Board predicted that Texas' prison population will increase over the next several years if policy reforms aren't enacted to reduce incarceration rates. "The correctional institutions population is expected to increase moderately, 3.2 percent over the projection period, from fiscal years 2013 to 2018. This increase is due primarily to increasing admissions to correctional institutions," said LBB. This growth is actually less than the projections from several years ago, thanks to legislative reforms to the state's probation and parole systems, but there's clearly more to be done.

Which felons go to prison, which ones get probation and who is even charged are all local decisions. According to the Office of Court Administration, felony convictions in Texas courts increased by 17.9% in the last ten years, from 92,838 convictions in FY 2002 to 109,487 convictions in FY 2012. Those upward trends jibe neither with declining reported crime (index-crime rates per 100,000 inhabitants down 25% from 2002-2011) nor the public's perception in crime victimization surveys. Instead, Texas DAs are prosecuting ever-more felons despite a reduced pool of criminals. Prosecution in Texas is a growth industry. Welcome to Ham Sandwich Nation.

The Legislature can't control elected DAs and judges, but it does have both direct and indirect means to set the parameters of local decisions. Indirectly, as was done in 2007, the state can provide mostly financial incentives to counties to supervise more offenders on probation instead of sentencing them to TDCJ. The Texas Public Policy Foundation has bandied about suggestions of sharing "savings" with counties for felons supervised on probation instead of being sent to prison. But as long as prosecutors' discretion looms so large, the quickest way to halt increased admissions is to alter punishment levels, which have historically operated on a one-way upward ratchet. The most direct approach would be to ratchet down drug possession penalties one notch and/or index property crime thresholds to inflation, measures that would actually reduce admissions by bringing punishment ranges in line with the relative seriousness of the offenses. It's not impossible, but the status quo is unsustainable.

The Legislature hopes to close two or more prison units this session to cut costs, but unless they find a way to curb front-end increases in the number of felony convictions, they'll need to shop for more bed space just a few years down the line. The LBB report gives them a schedule to meet: The time for dabbling is past.


Prison Doc said...

I don't get the "ham sandwich" metaphor--based on my TDCJ experience I'd say bologna or "peanut butter johnny" nation!

I think you and GH Reynolds are definitely correct--prosecutors, police, and district judges are filling the pipeline faster than it can be emptied with the use of enhancements and prison time for those who could easily be managed in the community.

Trouble is lots of these guys--cops, prosecutors, judges--are really good guys who think the are "doing God's work" to lock everyone up. It is hard to admit when your best efforts aren't yielding much of a result.

The Legislature has to "kick it down a notch" (or two) on punishment or no other reforms can work.

Gritsforbreakfast said...

PD, Reynolds is alluding to an old saying that a smart prosecutor can convince a grand jury to indict a ham sandwich.

He actually had some interesting suggestions in that short essay, including informing jurors of the lowest plea bargain offered before trial during the punishment phase of sentencing. The whole thing's pretty short and worth reading.

Anonymous said...

So sending more people to prison for longer time periods has nothing to do with the lowering crime rate over the same period?
No correlation at all??

Anonymous said...

I think he got it Grits, he was just making a prison food joke.

However, the problem isn't really that they thnk they're doing God's work so they have a hard time thinking they aren't getting the best results, it's more of a Got is mit uns type of issue--if God is on their side, everyone else has to be wrong and anything they do to get the result that they believe is correct is justifiable.

1:35, not when you consider that states who are releasing more of their prison population are having an even steeper decline in crime than Texas is.


Gritsforbreakfast said...

Some, 1:35, but we're past the point of diminishing returns even according to the folks who estimated the greatest public safety benefits from incarceration. Plus, as Rage mentioned, states like New York that incarcerate at far lower levels saw crime drop even more than here, so no, IMO the correlation is not strong.

Anonymous said...

As long as the federal government gives bounty money to law enforcement agencies,usually distributed by DA's,the prosecutors will continue to fill prisons with non-violent "criminals".
Watch the Police Unions and Chief of Police organizations that protest any attempt to decriminalize or legalize marijuana,,even for medical uses,,leo's prefer to arrest everybody and let the prosecutor sort them out.

Shannon Edmonds said...


I haven't read the report yet, but LBB staffers told me a few months ago that their projected increases would track projected increases in state population assuming crime rates remain the same. If so, then your conclusions are flawed.

Is that not what the report says?

Keep up the good work.

Gritsforbreakfast said...

Shannon, population growth would explain the increase over the last decade if crime rates hadn't declined 25%. But they did.

Besides, over the last few decades incarceration has increased at far greater rates than population growth and corrections spending has increased far more than Perry's goal of inflation plus population growth combined. Pinning the blame on population growth is just not an accurate portrayal of how increased prosecutions are driving incarceration.

BTW, did you see I gave TDCAA some blog love recently for your advice on the DPS Houston crime lab drylabbing incident where they're re-evaluating on drug cases. It was both impressive and helpful that y'all exercised leadership on that early, so thank you.

Shannon Edmonds said...


I did. We're a regular mutual admiration society, aren't we?

The problem with data comparisons is the time frame. For example, Tony Fabelo has told me that drug arrests/convictions rose from 2000-2007 but have fallen from 2007-2012. Lumping together those opposite trends as one general increase can mislead policymakers, as does you arbitrarily picking 2002 as a measuring stick.

Having now read the LBB report, I again have to question you saying "prosecution is a growth industry" based on that report. I read it to say that the TDCJ population is projected to remain flat through 2014 and then gradually increase through 2018 (at roughly the same rate as the unstated projected increase in state population) assuming crime rates and parole rates remain constant. That may be a cop-out of a projection on their part, but I don't see how that supports your statement that "Texas DAs are prosecuting ever-more felons despite a reduced pool of criminals."

But then, our members get blamed for much worse things than doing their jobs, so this is more for my own personal curiosity than any defense of the profession.

Anonymous said...

Ever considering taking a look at what the creation of 12.44(a) did? That wonderful tool that lets you plead to a felony and get time for a misdemeanor? Do people take more pleas for felonies as a result just to get out sooner? Still a felony conviction, just not felony time. Just a thought.

Gritsforbreakfast said...

Shannon, this post is based on more than one source. LBB cited admissions as the driver of future increases and in recent times increased admissions were driven by increased prosecution numbers that continued upward long after crime plummeted. My point combined that historical observation with LBB's projection to argue the trend cannot continue. LBB did not cite to OCA's data, I did.

Looking closer at the annual numbers, which I've compiled on a spreadsheet here, I understated recent growth by using 2012 as the endpoint. Turns out, there was a remarkable 11,000 drop in convictions last year that I'd not seen reported and for which I'm aware of no explanation. The increase in convictions from 2002 to 2011 was right at 30%, not the 17.8% cited in the post, so the effect of growth in prosecutions keeping the prisons full over the last decade was perhaps even greater than I portrayed during the period crime rates declined 25%.

Looking at the table, though, Fabelo is right that felony convictions flattened after a breathtaking 2007 peak (can't tell from OCA if it's because of drug convictions, but if he says so). Until the dip in 2012, though, convictions hadn't started to reflect declining crime trends. Perhaps going forward they'll start to. If that one-year downward trend continues, LBB won't be concerned about "admissions" filling up the prisons going forward.

Anonymous said...

Yes, Shannon, the sky would be yellow--if it wasn't actually blue.

Hilarious. What a hack.

Gritsforbreakfast said...

8:30, adults are talking here and you've contributed nothing.

Shannon was right that using just the 2002 and 2012 numbers without compiling the above-linked chart obscured recent changes - it was a blog post reacting to newly published data, not a dissertation, and unlike Shannon I hadn't been privy to Fabelo's insights. But the overall trend remains up (74k "receives" in the door last year) in a period when crime rates declined, which IMO is why admissions are still driving TDCJ population numbers. Can you show otherwise?

Shannon Edmonds said...

Thanks, Grits, that makes more sense. Not that I'm sold on overzealous prosecutors being the cause of prison admissions, but I didn't see how the LBB report led to your conclusion because I didn't snap to the fact that you were factoring in OCA data. Thanks for clearing that up.

Of course, the problem in all of this is that there is no accepted "appropriate rate" of prosecution, just gut feelings vs. ick factors vs. NIMBY arguments vs. etc.

Anonymous said...

Hey Grits, despite all of the ? marks presented by tick tock 12:30 PM, he / she / it / bot - does make a point that deserves consideration.

That being - the Texas TapOut Rate.

Not sure what 12.44 is but it sounds like a TapOut Tool that'll eventually backfire. Anyone that says Prosecution in Texas ISN"T a growth industry is either a DA or an ADA or just full of shit. I have a copy of an Indictment that either proves Grand Juries are being side stepped or hoodwinked.

*Could a person be indicted for a felony without a (G.J.) signing off on it?

Thomas R. Griffith said...

Hey Grits, do you happen to know if it's possible to be indicted for a felony without a Grand Jury signing off on it?

Tick tock 12:33 PM brings up a topic I believe needs to be addressed. The Texas TapOut Rate and the utilization of new fangled TapOut tools such as the 12.44(a) thingy mentioned have to have some bearing on the numbers (past, present & future). Thanks.

Gritsforbreakfast said...

For Shannon, et. al., see a further explication of these data in this followup post.

Anonymous said...

You can't be indicted for a felony without a grand jury - but you can certainly agree to waive indictment, at which point you are charged with an information.

As far as 12.44(a) - it is Penal Code 12.44(a). It allows the judge to convict you for a state jail felony but punish you as though it were a misdemeanor (i.e. time in county jail). It is different from 12.45(b), which actually changes the case from a state jail felony to a class A misdemeanor, so that your conviction is a misdemeanor. I am just curious about how that mechanism plays in to conviction rates v. incarceration rates.