TDCJ Releases 2005-2014:In fact, in 2012 Texas released 69.4 percent more violent offenders than in 2005, so this is not a new trend, and it has coincided with a decline in the state's violent crime rates over the same period. (Go here for an hypothesis why releasing so many more "violent offenders" didn't increase crime.)
Violent: 5,521 up
Property: 632 up
Drug: 2,756 down
Other: 2,612 up
Perhaps Texas' example provides evidence that the act of pursuing "low hanging fruit" in the political arena can help change the political culture surrounding crime and punishment in ways that indirectly affect debates and policies about violent offenders. (The same thing can happen, Grits would argue, with "innocence" and capital advocacy.)
For example, Texas' legislative reforms in 2007 focused almost exclusively on nonviolent drug and property offenses, with updating property-theft thresholds in 2015 the only other significant decarceration reform in recent memory. Yet the number of violent offenders released annually from TDCJ went up more than 50 percent.
The makeup of the parole board didn't change much over this period and nothing in the '07 bill would have caused that. (There were elements aimed at reducing parole revocations, but they wouldn't have affected releases.) Instead, the political culture changed around crime and punishment and the board reacted.
And, it must be said, even with that increase, release rates remain low. Though people convicted of violent offenses make up the majority of Texas prison inmates, they constituted only 22.6 percent of 2014 releases.
Still, when it comes to state-level decarceration reforms, Grits disagrees with Fordham law prof John Pfaff's tactical assessment about whether to prioritize reducing incarceration for nonviolent offenses. To me, the only practical place to start in the legislative arena, particularly in a red state like Texas, is on issues where it's possible to secure bipartisan support. One can't extract blood from stone.
But he's right to point out that real, long-term decarceration solutions necessarily must eventually extend to people deemed "violent" offenders. Otherwise, growth in that nebulous category can easily swallow up any decarceration gains from nonviolent offenders. For example, look at some top-line data from TDCJ Annual Statistical Reports for 2005 and 2014 (latest available), during which time the overall prison population decreased by 1,852. Within that total, though, there was wide variation.
TDCJ On-hand:Reductions achieved in property and drug offender totals were nearly entirely offset by the increased number of violent offenders, who as of Aug. 31, 2014 made up 55.6 percent of TDCJ's population totals.
Violent: 10,396 up
Property: 4,643 down
Drug: 5,679 down
Other: 1,299 up
Now let's look at only the new, incoming offenders in 2005 and 2014. With the number of new prison entries for property offenses nearly the same, the increase in new violent commitments entering Texas prisons in 2014 almost entirely offset the reduced number of new drug-offenders:
TDCJ Receives:The difference is, violent offenders tend to have longer sentences, so the new violent offenders will take up prison space for more bed-years over time. TDCJ essentially soaked up another placement for a violent offense for every drug and property offender diverted.
Violent: 3,616 up
Property: 212 up
Drug: 3,808 down
Other: 2,821 up
So I agree with Pfaff's central insight but sometimes think his commentary overstates how much the political process can do to reduce incarceration of violent felons, especially in states like Texas which already don't have mandatory minimums. The parole board (appointed to six year terms by the governor) and commissioners they hire make release decisions and there's not much outsiders can do to affect them.
Pfaff's focus on sentence length ignores areas where sentencing reform can make a difference. Any offense shifted from felony to misdemeanor status eliminates the possibility of imprisonment and keeps entire categories of offenders from ever entering TDCJ. Those low-level offenses are disproportionately drug and property crimes, so changing them won't affect the "violent" numbers. But they're something the Lege can actually affect that would reduce incarceration in the near term. They can't do much about parole rates.
Political tactics aren't just about plugging numbers into an equation or model to maximize marginal results. There are too many flawed humans with weird, self-interested agendas involved, and too many institutions with narrow jurisdictions that can only affect parts of the problem. I don't blame a New York City-based law prof for issuing theories which fail to take into account Texas' particular institutions and their realms of control.
It's hard to argue, though, with Pfaff's call for reassessing how offenders are judged along the violent-nonviolent axis:
Pfaff added that the division of inmates into non-violent and violent is itself confusing and misleading. “Not all violent offenders are really all that violent, and not all non-violent are necessarily non-violent; it’s tricky to figure out who is who,” he said.That's right, but it's a far cry from what either the public or the political class believe at this particular historical moment. In the scheme of things, it wasn't very long ago that even recommending leniency for "nonviolent" offenders was a political nonstarter in this state and many others. That's easy to forget in the wake of the post-Ferguson focus on criminal justice reform in the last however-many months. Maybe there will be things possible going forward that in the past would have fallen outside the bounds of mainstream political debate. But it would be wrong to critique strategic and tactical decisions before that time based on what's possible going forward. Those are different things.
For example, Pfaff said, in New York state, burglars who break into a house when no one is home are still considered violent offenders. On the other hand, when Pfaff examined records of non-violent drug offenders, he found that many had a record of violent crimes from the past, or had physically harmed someone during the commission of their crimes.Focusing on non-violent crime, then, is actually a somewhat arbitrary way to separate the incarcerated into good prisoners and bad prisoners—and to avoid dealing with the most pernicious ideology behind the incarceration binge.“As long as we focus on non-violent people in prison,” Pfaff told Quartz, “it has the collateral consequence of suggesting we should just give up on the violent people, and that the violent people deserve whatever we do. And I’m not sure that’s entirely the right way to think about it. Violent people change, violent people age out of crime.”
I don't think Pfaff's analysis changes much of Texas reformers' strategy in the near term, but it's a caution to enthusiastic decarceration advocates to adjust expectations. For the foreseeable future, the much-ballyhooed national #Cut50 campaign remains a pipe dream, certainly in Texas. Without significantly slashing the numbers of violent offenders, it's not possible to get close to that number.
Grits can't say how we'll get there, if, or when. But I do know that politics is the art of the possible. And decarceration won't happen if advocates ignore the things which are possible to focus on things which are not.
In the meantime, the good news is that, in Texas, the parole board already is releasing more violent offenders, anyway, and with violent crime dropping and the economy booming, it turned out no one noticed, cared, nor complained.