Saturday, February 06, 2016

Previewing interim charges at House Corrections Committee

The Texas House Corrections Committee will meet Tuesday and Wednesday to discuss an array of interim charges, so lets preview each of them ahead of time. First up on Tuesday:
  • Study incarceration rates for non-violent drug offenses and the cost to the state associated with those offenses. Identify alternatives to incarceration, including community supervision, that could be used to reduce incarceration rates of non-violent drug offenders.
  • Study inmate release policies of the Texas Department of Criminal Justice, including the release of inmates directly from administrative segregation.  Identify best practices and policies for the transitioning of these various inmate populations from the prison to appropriate supervision in the community. Identify any needed legislative changes necessary to accomplish these goals.
And on Wednesday they'll hear testimony related to their charge to:
Study recidivism, its major causes, and existing programs designed to reduce recidivism, including a review of current programs utilized by the Texas Department of Criminal Justice (TDCJ) and the Windham School District for incarcerated persons.  Examine re-entry programs and opportunities for offenders upon release.  Identify successful programs in other jurisdictions and consider how they might be implemented in Texas.
Let's walk through be basics on these.

Reducing drug offenders in prison
On incarceration rates for nonviolent drug offenders in Texas state prisons, the go-to source is the TDCJ Annual Statistical report; here's the FY 2014 version. According to that source, about 16 percent of TDCJ offenders on hand as of Aug. 31, 2014 were incarcerated for a drug offense as the primary charge, or 24,005 inmates out of roughly 150,000 incarcerated in TDCJ that day. Of those, 14,256 were incarcerated for possession only and 9,699 for drug delivery. Of the subset of those locked up in state jails (essentially fourth-degree felons), the same report found 37 percent were incarcerated for a drug offense, almost all of them (90 percent) for possession.

Notably, there were 1,998 inmates with a drug offense as their primary charge who are categorized by TDCJ as 3g offenders, a category largely reserved for violent crimes. The reference is to Sec. 42.12(3)(g) of the Code of Criminal Procedure. Drug offenses become 3g offenses if a child was present or involved or if the offense were committed in a drug free zone. While we may not like these drug offenders, its probably unhelpful to group them with murderers. This might be an example of people serving unnecessary extra time because we're "mad at" them, not afraid of them, as Sen. John Whitmire is fond of saying.

As far as the costs of housing drug offenders, the uniform cost report document prepared biennially by the Legislative Budget Board is the go-to source. They put the average FY 2014 cost at $54.89 per day.

OTOH, in truth, how much it costs to house a prisoner varies widely based on what unit they're housed in, whether they receive drug treatment, education, or other services, and whether they get sick, among other things. Recently Grits requested breakdown of the cost per prisoner at all TDCJ units as of 2014. (Thanks to TDCJ Public Information Officer Jason Clark for fulfilling that request.)

Looking at that level of detail, we can see, for example, that SAFP services delivered at the Jester I unit (built in 1885) cost $90.85 compared to an average of $58.72 at the four other units delivering SAFP services. These unit-by-unit data give a clearer sense of how widely costs can vary per prisoner depending on where they're housed. The $55 average LBB uses masks a wide range of differences and could be lowered by closing some of those higher-cost facilities.

As for alternatives to incarceration, my hope would be that debates could move beyond drug courts to the need to adjust drug sentences for low-level possession downward. Texas has invested a great deal in drug courts and proven conclusively that strong probation works. But the resource-intensive tactic cannot scale up to handle the volume of drug offenders cycling in and out of the system at all levels.

Thus, as the committee contemplates alternatives to incarceration, it's worth considering whether offenders caught with four grams or less of a controlled substances should be treated as felons at all, considering all the job and housing implications and other the collateral consequences a felony label entails. Shifting penalties to a Class A misdemeanor for up to four grams of a controlled substance would save the state big money and dramatically reduce collateral consequences for those low-level offenders.

How much money could be saved from reduced penalties? Last session, Rep. Senfronia Thompson proposed HB 254, which would have reduced the sentencing category for people possession less than a gram of a controlled substance, so a subset of the up-to-four-grams category. The Legislative Budget Board estimated that the state would save more than $105 million in the first biennium and upwards of $139 million in the second. If sentences for up to four grams were reduced to a Class A misdemeanor, the reduction in the incarceration budget would be even greater.

Those levels of savings could finance an impressive amount of treatment and diversion programming for these new Class A drug offenders, nearly all of whom would inevitably receive probation (just like most Class A drug offenders do now). Once the Comptroller certifies the savings, some or all of it could be diverted to probation departments to pay for additional treatment services and possibly reduce the portion of probation budgets paid for by probationer fees, an issue getting increasing levels of attention lately.

Last session the Legislature boosted TDCJ's budget by more than $400 million, which seemed like a remarkable amount for a bunch of self-styled fiscal conservatives to spend on a Big Government program with no clear extra benefit in public safety effectiveness. (Of course, the same can be said of the border surge.) And that doesn't include the portion of corrections spending outside of TDCJ's budget. In a fiscal environment where oil revenues are down and legislators will be looking for cuts, not increases, the best way to pay for alternatives to incarceration would be sentence reductions, which themselves constitute an "alternative" to sending low-level drug addicts to state prison.

Inmate release policies and ad seg
Regarding releasing inmates directly from ad seg, Grits has addressed this question previously and refer readers to those related posts. Texas recently had its first prisoner pass the 30 year mark in solitary confinement, which seems outlandish except that he won't be the last. As of 2014, Texas had more prisoners in solitary confinement than the entire prison populations in 12 states. The union for correctional officers has claimed excessive use of solitary is responsible for higher assault rates on prison staff.

Staffers preparing their legislators on these issues may want to check out a new report on solitary confinement titled "Time in Cell" and a series of essays published recently in the Yale Law Journal reacting to its findings. Also, Texas figured prominently in a Marshall Project story from last year related to inmates released directly from solitary.

Also relevant: Last year the United Nations issued the Mandela Rules related to the use of solitary confinement which include some relevant suggestions. Those rules emphasize that the period of imprisonment should be "used to ensure, so far as possible, the reintegration of such persons into society upon release so that they can lead a law-abiding and self-supporting life." When prisoners who've been in solitary are released, "the prison administration shall take the necessary measures to alleviate the potential detrimental effects of their confinement on them and on their community following their release from prison."

The Mandela Rules suggest a step-down pre-release strategy which at present is foreign to TDCJ's programs and culture.
Before the completion of the sentence, it is desirable that the necessary steps be taken to ensure for the prisoner a gradual return to life in society. This aim may be achieved, depending on the case, by a pre-release regime organized in the same prison or in another appropriate institution, or by release on trial under some kind of supervision which must not be entrusted to the police but should be combined with effective social aid.
Whether or not Texas fully adopts the Mandela Rules, that particular suggestion makes a lot of sense.

Understanding recidivism, planning for reentry
The interim "charge" up on Wednesday really addresses two separate but related issues: recidivism and reentry. This LBB report is the go-to document for recidivism data. For the cohort of prisoners released in 2011, the proportion rearrested within three years was:
  • Prison: 46.5%
  • State Jail: 62.0%
  • Intermediate Sanction Facility: 57.5%
While the proportion re-incarcerated in TDCJ in three years was much lower:
  • Prison: 21.4%
  • State Jail: 30.7%
  • Intermediate Sanction Facility: 36.5%
Among states, Texas' recidivism rates - especially the 3-year incarceration rate - are remarkably low. But that's no cause for celebration! In reality, Texas' recidivism rate is so low because our incarceration rate is too high. Texas incarcerates an excessive number of low-risk offenders who would be unlikely to re-offend even if they had never been sent to prison. So the low recidivism number is really, in many ways, a mark of shame. It's low because we're overusing incarceration as a punishment beyond what's necessary for maximizing public safety.

If Texas commits to a strategy of de-incarceration, in all likelihood recidivism rates will rise. But that's a sign of normalization, not of failure. The day we're really limiting incarceration to those we're "afraid of" as opposed to people we're mad at, those we're "afraid of" who're released will, as a class, recidivate more. But that's not an argument for locking up low-risk offenders!

As to reentry questions - which are related to but separate from the recidivism debate - legislators could do worse than to look again to the Mandela Rules, cited above, which advise that, "The duty of society does not end with a prisoner’s release. There should, therefore, be governmental or private agencies capable of lending the released prisoner efficient aftercare directed towards the lessening of prejudice against him or her and towards his or her social rehabilitation." In Texas by contrast, released prisoners are given $100 in "gate money" and a bus ticket.

The committee should look at some of the barriers to successful reentry, like restriction on TANF benefits and food stamps for certain drug offenders discussed in a Grits post earlier today.  I'd also like to see the committee look for policies to reduce the accumulation of fines, fees, and debts facing ex-prisoners upon reentry. And there should be more focus on reducing the burden on families when their loved ones come home from prison.

The two biggest barriers to reentry, though, remain housing and jobs. These are difficult problems which don't lend themselves to simple solutions. In fact, it's hard to imagine making a dent in either without some state investment, which as mentioned runs counter to an oil-starved budget environment. And yet, if the Legislature doesn't address these questions then we're not being honest about the often state-created barriers to reentry facing ex-offenders.

The Lege eliminated job assistance for ex-prisoners during the 2011 budget crunch and has declined to limit the extent landlords can discriminate against ex-offenders regarding housing, even though one in five Americans has some sort of criminal record. In the past, efforts to expand reentry housing opportunities have been too quickly scuttled in response to NIMBY backlash. Legislators will need to pony up money for jobs programs and other reentry services and stand up to NIMBY opposition over housing to make much more headway on reentry questions. These problems are fairly well understood, but they'll require unusual political courage and money to honestly address them.

MORE: Grits contributing writer Michele Deitch emailed to say:
I wanted to flag for you that the Lege doesn't even have to reach to an international source like the Mandela Rules for guidance on this issue.  The ABA's Standards on the Treatment of Prisoners provide similar guidance as to the need for step-down type approaches.  Here is a link to the ABA Standards.

You would want to look at Standards 23-2.6, 2.7, 2.8, 2.9, and 3.8, all of which deal with seg issues.   Pay particular attention to 2.9, which addresses procedures for placement and retention in long-term segregated housing, and especially subsection (f), which addresses the need for a less-restrictive setting in the months before release to the community.  The drafters definitely had in mind a step-down type approach to segregated housing.  (As the original drafter, I can say that with some authority! :) )


Anonymous said...

So they can follow either the Mandela Rules or the Deitch Decree. The latter has a pleasing alliteration and Texas street cred, but the former has a more common-man's ring to it!

Sadly, nobody cares much about the ABA. Every human being capable of discussing the issue in English can imagine Nelson Mandela locked up in solitary. Better imagery. ;)

Bill Habern said...

My brief review of this well done edition of your blog does not include revocations of parole and probation as recidivist,I suspect this is because they are still serving a sentence, but the degree of unnecessary and excessively restrictive conditions placed on these people, including the excessive costs and fees over extended terms of supervision certainly contributes to failures of many released offenders that fail while under supervision. There are also some conditions of supervision, such as banishment, unnecessary residence restrictions, and controlled travel routes that are worthy of review and should be afforded some enlightened consideration. There are reasonable arguments that some banishment conditions are unconstitutional. If one's family lives in Harris County, but the parolee cannot enter Harris County, because some law enforcement agency does not wish that person to live or work there is constitutionally questionable.

If offenders suffering such strict conditions still offer a danger to the community, and require such extensive conditions, then why let them out of prison?

Bill Habern
Habern, O'Neal and Associates
Houston, TExas

Gritsforbreakfast said...

Bill, the recidivism definition as I understand it would include revoked parole violators but not revoked probationers. Still, for parolees, your point is well taken that, even though they may return to prison within three years and be counted as recidivists, that doesn't necessarily mean they committed a new crime.

I also agree with you about residency restrictions, etc., and thanks for mentioning it. Though over-long, this post is not comprehensive. I was hitting on high points about which I had arguments close to hand. Residency, licensing issues, there are a bunch of resonant notes I didn't hit here, particularly on the reentry front. I'm hoping there will be other stakeholders at the hearings to fill out the melody.

George said...

@ Bill,

"If offenders suffering such strict conditions still offer a danger to the community, and require such extensive conditions, then why let them out of prison?"

Why indeed, and the answer is because they are not the danger that so many people, including those who work within the criminal justice, political and media fields would have you to believe. Bill, I'm not preaching to you because I know you know the true facts are concerning this issue.

What I would like to see is a breakdown of the number of sex offenders who have been released from the Texas prison system on parole, mandatory supervision or are on probation who have actually gone on to commit a new sex offense. I would like to see this compilation from this point to as far back as it can be taken. I believe this would tell the real story and debunk the myths that continue. ( A national study would be helpful too ).

The California prison system recently released a study that showed the reoffense rate of convicted sex offenders over a period of, I believe it was at lease 10 years, may be wrong on that, at under 1%. These are the real indicators of the danger that registered sex offenders pose to society. This study covered all types of registered citizens and not just those caught pissing beside the road or the Romeo and Juliet cases, this included those who committed offenses against children as well.

Before I get attacked by those who absolutely don't want to hear anything about being soft on sex offenders, let me say this. I'm all for punishing individuals who commit sex offenses, send their ass to prison because if they committed the crime then they should be removed from society for the length of their sentence reduced by whatever good time they may accrue within the system. This is true to all people who commit felonies of any nature.

My stand on this is what happens once these individuals have reached the point in their incarceration that they are released from prison and back into society. Some, if not most, have families that accept them home. Some have young children that, in effect, have the same hardship conditions placed upon them as well -- conditions that have stacks of hard empirical statistical evidence pointing to, if not proving, that these conditions do nothing to prevent new sex offenses from occurring from these registered citizens.

Right now, the mob mentality rules this arena. It doesn't take much to get the button-pushers to start the average ignorant-about-this-subject citizen of on a we-ought-to-castrate-them-bastards rant. That sort of behavior is not right and never has been.

The answer, as I see it, is to treat each case as individual regardless of the type of sex offense. Each individual is unique and should be assessed as such instead of being labeled as this or that arbitrarily. The facts, however, are what they are. The facts show that the vast majority of citizens required to register DO NOT commit new sex offenses -- period.

For those who don't want to hear this, too bad. For those who have made careers out of shaming people and their families and their children -- shame on you. For those who are self-righteous and live in glass houses -- may God have mercy on your souls.

It takes a great deal of courage to leave prison as one who has committed a sex offense knowing that they will be viewed and treated as second-class citizens and will have extraordinary conditions heaped upon them -- an uncommon courage. Yes, I said courage, for though so many have been living in a form of hell yet so, so few have actually done what so many expect them to do, and almost seems like they want them to do -- and that is to commit new sex offenses.

DEWEY said...

"The two biggest barriers to reentry, though, remain housing and jobs." --- BAN THE BOX !!!! (Have you been convicted...)

Anonymous said...

It's unfortunate that the governor vetoed a bill that would have allowed communities to explore options based on restorative justice principles that would likely have decreased incarceration upfront and have been shown to reduce recidivism. A criminal justice win / win that the governor believes should be reserved for civil matters.

wolf sittler said...

Re: Reducing Drug Offenders in Prison
"Its probably unhelpful to group them (drug offenders) with murderers". Probably? That has to be one of the most politically correct comments I've read from you, Grits. Most drug offenders are not a threat to anyone except those moralists who insist drinking is fine, that prescription mind altering pills are fine, but marijuana and other drugs are not. To equate most drug offenders with murderers is morally obscene and economically unsustainable.
The fact that many drug offenders are "serving" excessive sentences "might be an example of people serving unnecessary extra time".....might???? Our taxes are subsidizing the unnecessary incarceration of thousands. It's time for that sound bite "prisons are for people we're afraid of, not the ones we're mad at" to be put into actual practice. This, however, would require much more than the tiny, incremental changes that too many are comfortable with.

sunray's wench said...

@wolf sittler

As murderes make up the group least likely to reoffend with the same crime, I would suggest that they are no more danger to most people than your average drug taker, so we really don't need to be splitting hairs there.

Points 2 and 3 should be considered together as far as TDCJ goes. The entire system, not just Ad Seg conditions, dehumanises inmates and removes all but the most basic elements of decision making from them. There is no assiatnce to enable those who have shown poor decision making skills in the past to develop better ones while in prison - TDCJ simply remove the option. That does not help anyone. Why does TDCj leave everything until the last minute when it comes to (barely) preparing inmates for release? Why do they not adopt the concept used by many other authorities, that from the day an inmate enters the system, everyone is preparing them for their release date? I will not accept that it is too costly - the results of not doing this are clearly a cost willing to be born in Texas, so the money IS there.

Anonymous said...

And the Award for - The Perpetual War on Drugs goes to -

Presidents': Nixon, Regan, Bush 1, Bush 2, Clinton, Obama

And of course they couldn't / wouldn't have embarked on this endeavor without the financial backing of those that bought them via CAMPAING DONATIONS and those that condoned it thru allowing it.

wolf sittler said...

Sunray's Wench
One major flaw in the system is the "cookie cutter" approach that underlies mandatory minimums, three strikes, etc. Until dealing with the individual is prioritized, people will be viewed through the mistake that they made, not the person they could become. High time for the notion of punishment to fit the crime to be replaced with punishment/treatment to fit the individual.

Anonymous said...

In the mean time, the folks running the Diagnostic Unit will continue to place first time offenders (charged w/ non-violent cases) on Units housing murders, rapists, bangers & hard core convicts that are moved from unit to unit in order to cook the overcrowding numbers and get rid of those deemed unfit.

The non-violent are targeted by gangs, individuals and bullies in grey where they are strong armed, raped, ruffed up for any reason. Some go on to learn from those that mentor them how to engage in a wide assortment of criminal tactics ranging from bringing in contraband, making weapons and convincing the weak to Ride with this group in order to keep his / her manhood, womanhood.

Go in as a non-violent person and come out with gang ties and weapon skills. The victims of this Diagnostic plan to house rapists and murders with non-violent 18 old, 98 lb kids that are raped can be expected to be mad at the world and or concentrate on serving revenge on those deserving. Hopefully the Lege will addresses the placement process before someone like Perry is convicted and placed in a cell with a rapist or murder. But since it doesn't seem to be on the list of items worth reforming, don't hold your breath.

Despite this, this was another very detailed GFB posting in which I personally hope the staffers do read and go on to encourage their boss's to read as well.

Anonymous said...

Cut in half the drug free zone penalty. No drug dealer intentionally sells drugs near dfz. They are always police buys arranged in the dfz.