Pay hike for guards needed to reduce contraband smuggling

At a Senate committee meeting today Texas legislators were told that understaffing and low guard pay were primary causes of the flood of contraband in Texas prisons, combined with a lack of phone access for inmates to keep in touch with their families. Improved phone access is already coming, but boosting pay will require legislative action. As Texas heads into the 81st legislative session, TDCJ officials have requested an eye-popping 20% pay hike for prison employees to stem its chronic understaffing problems.

In that context, I was interested to see PacoVilla's Corrections Blog recently lamenting possible pay cuts for California prison guards because of that state's budget crisis (coupled with looming federal court judgments). California guards are the highest paid in the nation, and interestingly, the main argument Paco offers in favor of high pay is reduced contraband smuggling by guards:

Notwithstanding the utter scorn the media has for California CPO's, even our harshest critics must acknowledge the effect high wages have had on staff involved contraband trafficking. Consider the FACT that Texas CO's rank 47th in the pay scale and HIGHEST in the illicit tobacco trade.

IN ANY CASE, whether pay enhances professionalism, security, retention rates or anything else, the handwriting is on the wall: CPO's have pretty much hit the ceiling. The days of wine and roses are long gone, friends.

Welcome the era of whine and poses.

If higher pay appreciably boosted professionalism and reduced smuggling among Golden State guards, that's the opposite trend from what we've seen in Texas. In fact, we learn from one of Paco's links that California's penalties are actually much more lenient toward contraband smugglers:

Prison employees can lose their jobs but there’s almost no chance of a criminal prosecution. Unlike states such as Texas — where providing tobacco to prisoners is a felony — the California statute considers it a misdemeanor and doesn’t lay out specific punishments.

That indicates to me that, contrary to the conversation at the Senate committee today, there's little relationship between harsher punishments for smuggling and reducing its frequency in prisons. Besides, Inspector General John Moriarty told the committee that Texas juries are unlikely to convict guards of smuggling offenses even when prosecutors decide to pursue charges.

As our friends at the Back Gate have frequently reported, at some Texas prison units the smuggling problem is epidemic, despite our guards facing much harsher criminal penalties than their counterparts on the West Coast. Perhaps, then, it's more effective to pay guards a decent salary on the front end and hire enough people to do the job. California prison guards make double what they're paid in Texas, though their cost of living is higher.

Better staffing appears to be a key part of the solution: there's a one guard per 5.28 inmate ratio in California versus a one guard per 7.03 inmate ratio in Texas. That plus higher pay, better screening for job applicants, and stricter oversight procedures (including pat downs for guards as they enter the gates) are all more effective ways to keep contraband out.

Twenty percent is a lot for TDCJ to ask for increasing prison staff pay all at once, but the best argument for giving them so big a boost is just what Paco said - it "enhances professionalism, security, [and] retention rates," plus it's probably the only way to dig TDCJ out of its staffing hole and fill those 3,000 empty guard slots.

RELATED: See initial MSM coverage of yesterday's hearing:

• Austin Statesman
• Dallas News
• Houston Chronicle
• AP

Texas prison guard salary ranks 47th among states

I realize the cost of living differs significantly according to geography, but I'm pretty sure Texas don't have the 4th lowest cost of living among states, even though Texas correctional officers are "47th on the nationwide list when it comes to what they're paid." Texas' average prison guard salary is less than half that in California, according to the Beaumont Enterprise:

PRISON PAY
Correctional officer salaries, annual mean wage

Top five

1. California, $61,000
2. New Jersey, $56,960
3. Massachusetts, $53,090
4. Nevada, $50,120
5. New York, $46,760

Texas, surrounding states

• New Mexico, $30,400
• Texas, $30,100
• Louisiana, $26,940
• Mississippi, $23,470

Source: U.S. Department of Labor

The paper also calculted that there's an overall "one guard per 5.28 inmate ratio in California versus a one guard per 7.03 inmate ratio in Texas," though the two states have about the same number of inmates.

Despite a recent increase in starting salary for new hires, the Enterprise quoted state Sen. John Whitmire pointed out that the state gets what it pays for by underpaying guards, which has contributed to absenteeism and more discipilinary problems:

Whitmire isn't sure the latest pay raise to new hires will make enough of a difference.

"Getting a 10 percent raise is almost too little, too late," he said, adding that a comprehensive assessment of the correctional officer profession in Texas is gravely needed.

"We need to look at the long-term and the short-term," Whitmire said.

"By raising the qualifications and standards for correctional officers, that can make it a profession somebody wants to do long-term."

Whitmire said while he's proud of Texas correctional officers' hard work, given the environment they work in, he's concerned that standards have been lowered to recruit correctional officers.

"They're hiring 18-year-olds two months out of high school," he said of the relative inexperience that goes along with youth. "We've got officers who are 70 years old, senior citizens. That's a security risk."

He also pointed out that physical fitness standards have been lowered, with overweight, out-of-shape correctional officers in the system.

Whitmire said he wants to meet with state criminal justice administrative officials and discuss the severity of the officer shortage. "It's worse than they're acknowledging," Whitmire said.

Many Texans support keeping prisons as inhospitable as possible because they're supposed to be about punishment, but those same poor conditions (think double shifts with no air conditioning in the Texas summer heat) combine with low pay to make it nearly impossible to staff current prisons in their existing, mostly rural locations.

Texas prison guards may get 20% pay hike - TDCJ requests 10.5% overall budget increase

Texas prison guards would get a 20% pay hike if TDCJ officials have their way, reports the Austin American Statesman ("Big raises sought for prison workers," Aug. 14):

Brad Livingston, the prison system's executive director, said the proposal would raise starting pay for correctional officers from $26,016 to $30,179 and the maximum salaries from $34,624 to $42,242. Livingston said the increase would cover staff from correctional officers through wardens.

For parole officers, starting pay would increase from $32,277 to $37,441, and the maximum salary would go from $36,363 to $43,636.

Saying the proposal "will fundamentally address the officer career ladder for the long haul," Livingston said the goal is to continue to reduce the agency's critically high vacancy rate and "reward our employees for their dedication to providing public safety."

Texas prisons have been short of guards for several years, so short that officials within the past year have had to close parts of some prisons. Without proper staffing, convicts have to be kept confined to their cells more than they should be, programs have to be suspended, and conditions inside prisons generally become more undesirable — for guards and convicts.

The shortage of correctional officers reached a crisis point 11 months ago, when the agency had 3,978 vacancies. Livingston said that through July, the shortage had been reduced to 3,040, thanks to a beefed-up recruitment program and incentive pay.

Board Chairman Oliver Bell predicted that the pay increase will help reduce the vacancy rate even more. It will help "retain our current staff, recruit new officers and overall would send a positive message to our employees that we value their dedication to protecting the safety of the citizens of Texas."

Although legislative leaders greeted the proposal warmly, they said it will have to be considered with all the other demands that will face state budget writers come January.

The grand total for proposed raises - $453 million and change. And that's not the only proposed increase stemming from Texas' jam-packed, understaffed prison system:

In addition to the raises, the agency's $6.6 billion, two-year legislative appropriation request also includes an additional $181.1 million for convict health care, $30 million to buy additional video surveillance and contraband screening gear and metal detectors to beef up security, $22 million to make a former Veterans Affairs hospital in Marlin usable for convict health care and more than $10 million to expand treatment programs.

The proposal includes no money for new prisons.

That amounts to nearly $700 million in new expenditures for the prison system, or a growth rate of 10.5% over the last budget. What's more, that assumes a de minimus expansion for treatment programs, but more will be needed to reverse long-term incarceration trends that made the prisons so full in the first place.

It's hard to tell whether even this large a pay hike will resolve TDCJ's 3,000 guard shortfall. Most prison units are in rural areas where the labor market remains limited, and no amount of pay changes the fact that Texas prisons are un-air conditioned in the summer and a distasteful work environment year round. But we already know Texas can't adequately staff prisons at current pay rates, so Livingston deserves kudos for proposing a radical solution.

One factor not mentioned in the press coverage: Last year the Legislature linked Youth Commission employees pay to guards at TDCJ to stop the drain of staff from that agency, so if TDCJers get this raise there will probably be an added expense from bringing TYC up to par.

There will be those who chafe at spending so much on prisoner health care, one suspects, at a time when a quarter or more Texans don't have health insurance. But considering the size of Texas' prison system, we'll probably still be underspending after the increase. If one day the feds step in and force the state to fully live up to its constitutional obligations on inmate healthcare, those costs could balloon very quickly like they have in California.

Texas has long enjoyed an artificially low overall cost per inmate compared to other states and these proposed increases are just beginning to address those historic deficiencies. It's not so much that base costs have increased, but Texas must also pay the piper for obligations the Legislature shortchanged for many years.

The other options, of course, for those who dislike the expense, would be to criminalize less stuff and incarcerate fewer people.

Governor: No crisis from prison understaffing - move along, nothing to see here

Texas' shortage of prison guards, which in some cases has resulted in three correctional officers supervising 500 inmates in a dorm setting and recently forced the closure of a wing at the Dalhart unit, isn't a "crisis," says Governor Perry, contradicting Sen. John Whitmire who'd used that word earlier in the week.

Retorted the Austin Statesman editorial board, "It would be tragic if proof of a crisis arrived in the form of a prison riot that overran, and perhaps murdered, guards." Indeed, it would be both "tragic" and preventable. Gov. Perry and the Legislature have been warned of this growing dilemma for several years, but in 2007 preferred to construct new prisons (that we probably can't staff) instead of addressing the lack of guards at current ones.

On Thursday at the Texas Public Policy Foundation's legislative issues seminar, I asked House Corrections Chair Jerry Madden in the public Q&A how they planned to staff new prisons when they're so short on guards now. He replied that new prisons would be built near larger population centers to make it easier to hire guards. I didn't follow up, but larger population centers also have a much higher cost of living than Dalhart, Palestine, or Livingston - I'm not sure that will necessarily solve the problem.

The Statesman's Mike Ward, whose earlier reportage first revealed the Dalhart-wing closure, pointed out that thousands of trusties - who perform routine guard functions and frequently are allowed free passage in TDCJ vehicles to run errands outside facilities - are eligible for parole and could be immediately released. Sen. Whitmire believes that as many as 11,000 convicts who've already been approved for parole - but who're waiting for paperwork to be processed or for access to required treatment programs - could possibly be released in the short term to reduce overcrowding. Reported Ward ("Speeding release of parolees could ease guard shortage, lawmakers say," Jan. 12):

Although guard shortages have been building for several years, primarily because of low pay and poor working conditions, the magnitude of the current problems took some state leaders by surprise this week when it was disclosed that a 300-bed wing in a Panhandle prison had been closed because there weren't enough guards to staff it. And although lawmakers began talking Thursday about how to remedy the situation, nobody was suggesting a pay raise for correctional officers. Legislative analysts said a pay hike that correctional officers are seeking is not currently possible because it could cost upward of $500 million, a big-ticket item not in the state budget.

"In my judgment, we have thousands of people locked up who don't need to be there," said Whitmire, D-Houston, chairman of the Senate Criminal Justice Committee.

"Last year, there were 6,200 trusties in the system — the lowest, lowest-risk offenders — and 5,700 of those were parole-eligible. But they were still locked up. ... There were 1,500 that were already approved for parole with a release date for next summer.

"Why not go ahead and process them out, drop the population of the system so we have enough correctional officers to properly cover shifts?"

Trusties are the lowest-risk, lowest-security prisoners in the system, and they often are assigned jobs helping run the units, including cooking, laundry and filing.

"These are the inmates who are helping staff these units, and I have to wonder whether they (prison officials) want to keep them there just to keep the units running," Whitmire said. "The public safety danger now is really not over whether to let these already paroled inmates get out — it's about not doing anything."

In the past, suggestions of speeding up releases have triggered criticism from prosecutors and victims' groups who insist that freeing thousands of convicts is not the best way to address prison problems.

Two decades ago, they note, such a decision resulted in a spike in violent crime in Houston and other areas, triggering a backlash for longer sentences and more prisons.

Madden, chairman of the House Corrections Committee, agreed that the already approved parolees still in prison should be reviewed.

"We shouldn't let anyone out of prison who shouldn't be out, but I would urge (prison and parole officials) to look at this," said Madden, R-Richardson. "We must ensure that we have safe staffing levels in our prisons — which I can't say now that we do at some sites — and closing some additional wings of some units seems a wise way to stretch the short staff farther."

Ward also brings news that guard shortages could stall the re-opening of former TYC units in Marlin and San Saba as TDCJ facilities:

The moves marked the first time in recent years that chronic staffing shortages have forced such changes. Prison officials insisted that proper security is being maintained, an assertion challenged by some correctional officers who warn that the situation is becoming dangerous.

Whitmire, Madden and other lawmakers on Thursday questioned the opening of two new prisons — former Texas Youth Commission lockups in San Saba and Marlin are to open this spring as 616-bed adult prisons — when existing units are plagued by critical shortages.

Overcrowding and guard shortages have grown increasingly worse for several years, but now reality has begun to impose functional limits on increased incarceration, belying the Governor's assurances that all is well.

Governor Perry needs to rethink his cavalier attitude toward prison overcrowding because, when the chickens inevitably come home to roost, it'll be hard to get past the historical fact that his vetoes and his appointees at the Board of Pardons and Parole are the main cause of the short-term crisis. We shouldn't have to wait, as the Statesman prognosticated, for "a prison riot that overran, and perhaps murdered, guards" before the system's mismanagement becomes a priority.

RELATED: California early release plan is praised, decried

TDCJ can't stem staff turnover crisis at remote, rural units; #txlege must align policy with reality and reduce low-level drug sentences

While your correspondent was on a much-needed vacation, the Houston Chronicle's indefatigable Keri Blakinger published a story updating the Texas prison system's efforts to staff rural units, which have up to 49 percent vacancy rates. Her article opened:

The Texas prison system handed out more than $9 million this fiscal year on bonuses to aid recruitment as they grappled with extensive officer vacancies, but department data shows the cash outlay has hardly moved the needle. 

Seven months after the state launched a concerted effort to bring down the 14 percent officer vacancy rate, the Texas Department of Criminal Justice still has 3,675 unfilled positions - roughly 30 more than in January when the leadership started tackling the problem.

Despite record hiring bonuses given out to new hires at understaffed facilites, Blakinger reported:

more units are severely understaffed now than last fall. The latest unit-by-unit figures - from May 31 - show that fourteen units were under 75 percent staffed. Dalhart was down to 51 percent staffed. At the Daniel Unit, between Lubbock and Abilene, staffing dropped from from 77 percent in October to only 62 percent of jobs filled in May. 

And the notorious Ferguson Unit - where a teacher was allegedly raped by an inmate last year in an incident her lawyers blamed on understaffing - was down to 69 percent staffed. 

Of the 29 units with hiring bonuses, 19 - including Daniel, Ferguson and Dalhart - had higher vacancy rates in May than they did in October.

Employees punished alongside prisoners

Blakinger raised the seldom-discussed but potent employment barrier of requiring people to work in un-air-conditioned prison units. Litigation framed the issue in terms of prisoners' health and well being, but the more pressing state interest may be the inability to hire people to work in harsh, unpleasant conditions:

“If they would air condition every unit across the state they would keep more people,” said one officer, who asked not to be named because he wasn’t authorized to speak on the record. “If you as a corrections officer tell your lieutenant, ‘Look I’m hot, I need to go cool down,’ they’re gonna laugh you off the unit.”

Ask yourself: Would you take a job in a small rural town for a low-thirties salary surrounded by convicted felons in an un-air-conditioned metal building? I'm guessing most people reading this would say "No." (And if you would say "Yes," go apply to your nearest prison. They're hiring.)

These various issues compound. Understaffing contributes to a more dangerous and occasionally deadly environment for guards, and the summer heat amps up everybody's tensions, making prisons a more perilous place to work, less inviting to new applicants, and more likely to drive away existing employees.

That's the piece the hiring bonuses can't and won't solve. Former union boss Lance Lowry made that point in the story. “A bonus just gets people in the door,” he said. “We’ve never had a problem getting people in the door - the problem is getting those employees to stay.” That's exactly right. A "turnover" problem is about dissatisfaction of employees who are already on the payroll, not how many people arrive on the front end.

Piddling guard salaries and the limits of prison parsimony

The biggest problems remain low pay and oppressive workplace conditions. IMO the rural settings wouldn't matter and TDCJ could easily fill its positions if prison guards here made as much as in California, for example, where the union is politically powerful and starting salaries are around double what they are here.

Texas spends $3.5 billion per year on TDCJ, which sounds like a lot, but given our highest-in-the-country prison population numbers, we're pretty chintzy when it comes to spending on state prisons, a point I made in the story:

“We already pay less to incarcerate people than just about every other state,” Henson said. A 2015 Vera Institute of Justice analysis showed that Texas has 11.6 percent of the country’s state prisoners, but only accounts for 7.6 percent of prison spending. 

“We’re underspending at pretty radical levels,” he added. “If you don’t want to spend more, your options are: incarcerate fewer people. That’s it.” 

Marc Levin, vice president of criminal justice policy at non-profit Texas Public Policy in Austin, agreed. 

“I think it’s the ideal solution,” he said. “We would obviously want to look at the units with the biggest staffing issues and biggest capital costs.”

Based on the Vera Institute figures cited above, if Texas' proportion of state prison spending matched its proportion of state prisoners - i.e., if we spent the nationwide average amount per-prisoner - we'd spend $5.3 billion per year instead of $3.5 billion.

The pretense of parsimony is a picayune point of pride for many Texas legislators, but it's also the source of most of the prison systems problems. Texas' under-spending comes from several sources, but mainly low guard pay, lack of air conditioning, and dramatic under-spending on inmate health care. 

A prescription to match the diagnosis

Grits was further quoted in the story, pointing out that there's only one, real solution to the problem: "to reduce the incarceration levels enough to close more units and this time target units with high vacancy rates for closure." Let's explore that a bit further.

The shortest distance to lowering incarceration levels in Texas is to reduce sentences for non-violent drug offenders. Texas has already adjusted property-theft thresholds for inflation, diverting thousands of low-level theft offenders from prison. And the 2007 probation and parole reforms have likely reached the limits of what can be expected from probation reform: after a decade, local judges and probation departments remain slow to reduce revocations for technical violations or use early-release provisions for successful probationers. Probation departments have economic incentives to keep successful, fee-paying offenders on the rolls and to revoke those who cause headaches, whether or not those folks engage in criminal misbehavior.

Best case: Probation reform may offer medium to long-term savings, but in the short-term would actually require more investment.

That leaves two large categories: drug offenders and people convicted of violent crimes.

While we do over-incarcerate violent offenders, locking thousands of people up long after they've aged out of crime and pose little threat to society, any statute change aimed at reducing incarceration for that group would result in long-term benefits that won't address the immediate crisis. The person incarcerated for ten years instead of 15 saves the state a lot of money, to be sure, but we wouldn't see any of the savings for a full decade after they were sentenced. 

By contrast. reducing penalties for low-level drug offenders - say, making possession of up to four grams a Class A misdemeanor instead of a felony - would save lots of money in the immediate, biennial state budget, and even more in the long term. Legislators only view the budget in terms of a two-year time horizon (since many of them won't even be legislators ten years from now). So politically, out-year savings are mostly irrelevant at the capitol. Altering drug sentences would have the biggest short-term impact on both decarceration and budget savings, allowing the state to move toward immediate closure of several units and solving numerous, nagging problems at once.

That's the only real alternative for reducing incarceration enough in the near term to help Texas with its rural-prison understaffing problem. New-hire bonuses are a band-aid, at best, and won't stop staff from wanting to leave these hot, dangerous, underpaid jobs.

We Are Not Alone: California may resort to early release for nonviolent offenders to stem prison overcrowding

As Texas considers whether to release parole-ready offenders early to respond to chronic prison guard understaffing, it's interesting to note that California is already two steps ahead of us with their plans to release prisoners ("Early release plan is praised, decried," Los Angeles Times, Jan. 11):

Overall, [Gov. Arnold] Schwarzenegger's budget estimates that his plan would cut the prison population, now 173,000, by more than 28,000 inmates next year and nearly 35,000 by 2010. As many as 2,000 prison guards would face layoffs.

For the state to reduce the inmate population enough to save, as it hopes, more than $370 million by 2009 and $750 million annually by 2010, it would have to keep 50,000 or more convicts out of prison, by some estimates. That is because many serve only a few months at a time; the state might have to get rid of three short-timers to eliminate one bed.

The secretary of California's Department of Corrections says he believes the state's prison system is "too big to manage." If so, then so is Texas'. California incarcerates around 173,000 inmates, compared to about 157,000 in Texas (although California's overall population is more than 50% greater than ours).

Even critics of Schwarzenegger's plan in California appear recognize the self-defeating trends that brought them there: "'I voted for these measures like 'three-strikes' too,' said [Richard] Word, president of the police chiefs association. 'I guess this is the price you have to pay. The bill is due now.'"

CA considers medical parole as solution to rising prison health costs

Over at Sentencing Law & Policy, Doc Berman notices that California is considering medical parole to reduce health care costs, excerpting an article that holds up Texas' example: "36 other states have a version of medical parole, including Texas, which is putting about 100 to 170 inmates a year into that status," says a Golden State legislator pushing the idea. In California, according to the Sacramento Bee:

the prison system could save $213 million over five years by paroling just 32 inmates identified as severely incapacitated. Twenty-one of those 32 inmates are in nursing facilities or hospitals outside prisons, which requires spending for expensive guard time – including overtime – as well as huge health care costs.

These 21 inmates' average annual health care and guard costs total more than $1.97 million apiece – a total of $41.4 million a year for 21 individuals, said Kelso aide Luis Patiño. "These people are not even capable of realizing they're being punished," Patiño said. "Society becomes the victim, because it's paying the cost."

I mentioned in the comments to Berman's post that, while Texas began using medical parole more frequently in response to similar stories of high-cost inmates, there is still more savings to be had on this front than we've so far achieved from the policy. "The last number I heard: Only about 10% of those recommended for medical parole are approved by the parole board. Many TX offenders recommended for medical release pass away before the parole board gets around to their case. Around 40 inmates per month die in Texas prisons, a number which has been going up along with healthcare costs as the prison population gets older."

State Sen. John Whitmire in committee hearings has cited data (which I've never seen) suggesting Texas' most expensive inmates cost the state upwards of $1 million per year in medical bills. And TDCJ has said Texas could save up to $49 million per year by using parole more aggressively for older, nonviolent offenders with high healthcare costs.

From state government's perspective, medical parole makes a lot of sense. States pay 100% of prisoners' healthcare costs. On the outside, if a parolee is indigent the state pays just 1/3 of Medicaid costs, including hospice, etc.. And if they're 65 or older and Medicare eligible, state government can unload their whole healthcare bill on the feds. From taxpayers' perspective at 30,000 feet, that's a distinction without a difference: It all ultimately comes from their wallets. But for state governments trying to balance their budgets, the strategy makes a lot of sense.

UPDATE/CLARIFICATION: I spoke this morning with Larance Coleman at the Texas Senate Criminal Justice Committee who told me that the estimate by a California legislator of 100-170 Texans receiving medical parole each year is way too high. Perhaps, he said, over the life of the program that many have been released. Coleman said he gets monthly reports that include the number of medical releases approved by the parole board, and generally they average around 2 per month. I'm guessing the 100-170 number is how many TDCJ recommends, but the board turns down 90% of them.

MORE: From California Corrections Crisis.

Prison guard union backs de-incarceration, closing 2 private units

Reacting to this Grits post on "Reaganite" vs. "statist" approaches to prison understaffing, a labor leader from AFSCME, which represents Texas prison guards, emailed to clarify the group's position vis a vis possible prison unit closures. Here's the full text of his letter, followed by Grits' reaction:

More guards, more prisons, or fewer prisoners: Bill expanding drug treatment makes third option possible

In the medium run, the Texas Legislature has two options for managing its prison population - build more prisons and increase pay so they can hire sufficient staff, or reduce the number of prisoners so the Department of Criminal Justice can safely guard the inmates it's got.

This week we received mixed signals on the pay front, with the Senate suggesting a 20% pay hike for guards while the House removed pay increases from the budget and put them on their "wish list." The issue won't be decided until the conference committee on the budget.

If pay hikes don't happen, that leaves reducing the inmate population.

The good news on that front is that the Legislative Budget Board projects (see p. 14 of the pdf) that Texas' prison population will decline in fiscal year 2009 for the first time in many, many years. LBB says Texas will incarcerate 2,000 fewer inmates by the beginning of FY 2010, but after that, the prison population will slowly begin to increase again, exceeding capacity by 2013. If that's accurate, the Whitmire/Madden reforms of 2005 and 2007 bought the state a little time, but have only put off the prison overcrowding problem, not eliminated it.

That's one reason why I was glad to see an excellent bipartisan bill filed in the Senate aimed at building on recent years' reforms. SB 1118 boasts five primary authors - Senators Ellis, Carona, Deuell, Hegar, and Whitmire - and would reduce the number of low-level drug offenders cycling in and out of prison. It proposes a substantial shift away from imprisonment for petty drug possession felonies and toward using probation and treatment for those offenses. It's a bit of a complex bill, but here are the highlights:

If approved, for third degree drug felonies (1-4 grams of a controlled substance) and lower, "the judge shall suspend the imposition of the sentence and place the defendant on community supervision," except that the judge "may" send them to prison if they determine by a preponderance of the evidence that:

• The defendant is a danger to the safety of others,
• The defendant has a prior conviction (excluding drug possession or a violation of the Transportation Code),
• The defendant is convicted in the same proceeding for an additional offense (excluding drug possession or a violation of the Transportation Code), or
• The judge determines after an "evidence-based assessment" that that the defendant is unlikely to benefit from participation in a drug treatment program, and then only if they have been convicted in two or more occasions of drug possession or discharged unsuccessfully from a drug court program.

Defendants whose sentences are suspended must "submit to an evidence-based risks and needs screening and evaluation procedure" approved by TDCJ, and if the evaluation indicates the need, submit to a course of drug treatment that may include:

• treatment in a faith-based program
• outpatient treatment
• halfway house treatment
• narcotic replacement therapy
• drug education or prevention courses, and
• inpatient or residential treatment

A court can also order the defendant to participate in vocational training, family counseling, literacy training, or community service.

The bill gives judges plenty of options, including incarceration, for dealing with offenders who won't comply with their probation terms. One goodie for judges whose overcrowded county jails may limit short-term incarceration for probation: The bill authorizes using TDCJ-run "intermediate sanction facilities" for up to 120 days for probation violators. Those state-run are presently only used for parole.

Another interesting twist: After the successful completion of their probation term and a drug treatment program, the defendant may petition the court for dismissal of their charges.

This legislation would affect significant chunk of Texas' drug cases; as noted recently, among Texas' state jail felons incarcerated for drug offenses, 87.3% are in for possession of less than a gram of a controlled substance according to TDCJ, while 58.6% of more serious drug cases were possession-only offenses, not for "distribution."

I'm optimistic about prospects for this legislation, which builds on prior, successful legislative initiatives which demonstrably averted what, not long ago, was a looming, California-style prison overcrowding crisis. Removing small-time drug possession defendants from prison and shifting them to less expensive, more effective treatment programs would help solidify the prison population reduction LBB projects for next year, avoiding billions in costs for more prisons and guards in the budget-strapped years ahead.

TDCJ: Paroling older offenders could save Texas $49 million per year

Thanks to the addition of billions in federal stimulus funds and a now-vanished revenue infusion from high oil prices last year, Texas was able to stave off the kind of serious state budget crunch in 2009 that's crippled California and put the pinch on dozens of other states. The effects on criminal justice in California have been extreme, from the Los Angeles Sheriff choosing not to pay DNA testing in rape cases to slashing prison guard salaries by ten percent, the Golden State is taking radical steps to stay within its budget.

By comparison, Texas prison guards got 3.5% raises this year in an effort to reduce understaffing and the state financed modest increases to diversion and treatment programs to keep from building more prisons. Looking forward, though, by 2011 most official estimates see Texas experiencing severe if delayed effects in the state budget from a slumping economy, meaning legislators will be faced with cutting the budget or dipping into the state's "Rainy Day Fund."

At that point, legislators will be looking for places to cut, and this morning I ran across a brief, two-page report (pdf) on the TDCJ publications page that tells them how to save $49 million per year right off the bat. (It was published in December but I hadn't seen it before now and the Lege didn't act on the information this session.) According to the analysis, performed in response to HB 429 passed in 2007, the:

aging of the offender population has a demonstrated impact on the resources of the health care system. Offenders age 55 and older access the health care delivery system at a much higher level and frequency than younger offenders. Encounter data indicates that offenders aged 55 and over had a documented encounter with medical staff almost three (3) times as often as those under age 55. In terms of hospitalization, the older offenders were utilizing health care resources at a rate of more than four (4) times higher than the younger offenders. The 55 and older offenders comprise about 6.8% of the overall service population and yet account for more than 30.5% of the hospitalizations.

TDCJ incarcerated more than 10,950 offenders over the age of 55 as of Aug. 1, 2008, the agency reported; about 5,000 of them are not serving time for so-called "3g" (violent) offenses. (More than 60% of offenders in TDCJ's institutional division are eligible for parole, according to the agency's annual statistical report - pdf, p. 15). Paroling those offenders, said the agency, would save the state more than $20 million annually in off-site medical costs, at a minimum, as well as reduce the burden on internal TDCJ medical systems.

In addition, paroling 5,000 offenders would save money by allowing the state reduce its reliance on private prison contractors:

Based on the most recent LBB offender population projections ... a reduction of 5,000 incarcerated offenders could eliminate the need for contracted temporary capacity, currently 1,899 beds, reducing current agency expenditures by approximately $29 million annually.

So when Texas legislators start talking about budget cuts, TDCJ has identified $49 million per year the state could cut from the prison budget that should be discussed well before anyone starts talking about reducing staff pay.

Mexico, Central American prison and jail problems make ours look petty

Just to keep Texas' prison and jail problems in perspective, in Honduras 358 or more inmates died last week in a prison fire, while yesterday in Monterrey, an affluent-business oriented town a two-hour drive from the Rio Grande, at least 44 were killed and guards were taken hostage during feuds between rival cartel members housed in the same facility. (According to the Austin Statesman, Los Zetas forces massacred prisoners associated with the Gulf Cartel "then staged a mass escape.") Indeed, for those keeping score at home, it's worth adding to the tally that in December 2010, prison officials helped 140 inmates escape through the front gate of a prison in Nuevo Laredo.

Texas prisons face much different challenges than Mexican or Central American ones. Ours mostly involve paying for the Legislature's mass-incarceration policies and preventing even more expensive prison building, with a little contraband-related corruption around the edges. But unlike in Mexico or, say, California, Texas has enough prison capacity (barely) to house the prisoners it incarcerates. By contrast, the facility which endured yesterday's riot in Monterrey was horribly overcrowded: "The prison, built to house some 1,700 inmates is jammed full with some 2,700 prisoners."

Meanwhile, the escape in Nuevo Laredo assisted by prison officials shows how corruption problems complicate all these other challenges. I don't know what prison-guard pay is in Mexico, but if it's anything like what Mexican cops receive, it isn't much. Mexican prison corruption, though, typically goes much deeper than just line staff.

As for the fire in Honduras, I've heard many a Texas Sheriff grouse about the Commission on Jail Standards flunking their facility's inspection over faulty sprinkler systems and fire alarms, which some (especially rural) jail administrators consider relatively petty violations. But when 358 people die locked up in jail as a fire consumes them, it doesn't seem so petty. And overcrowding played a role as well. Paul Kennedy picked up on the fact that "At the time of the fire there were 856 inmates in a facility designed to hold but 500. Even more appalling is the fact that more than half the inmates at the prison were either awaiting trial or being held as suspected gang members."

This blog focuses on criminal-justice reform in Texas because I live here. But it's important to recognize things could be much, much worse and some of these annoying bureaucratic dicta and inefficiencies that prison and jail administrators complain about actually serve to make everybody much safer. Just look south to see what happens without them.

Rise of LWOP sentences contributes to Californication of Texas justice

Regular readers will recall Grits has oft lamented the Legislature's unwise choice - abetted by prosecutors and death-penalty abolitionists back in 2005 - to add life-without-parole (LWOP) as a sentencing choice for capital murder but to simultaneously eliminate the option for juries to select life with parole (after 35-40 years, if memory serves).

I didn't like it for several reasons, not the least of which is needlessly filling up the prisons with old people that my granddaughter then must pay for. Anyway, LWOP gives too much power to prosecutors in their charging decisions (accept a plea or die) while making us little safer. And LWOP may encourage inmate misbehavior inside the prison by giving people nothing to lose. (A prison-guard commenter at TexasJustice.org noted that all five prisoners in the escape attempt at the Polunsky unit last year, including the three who were shot, were LWOP capital defendants.) Not to mention the growing costs of healthcare for the elderly in prison are so high that incarceration to the end of life, in the majority of cases, simply doesn't pass the cost-benefit test.

So this has never been my favorite Texas sentencing policy, even though observers say it's a partial contributor to Texas' recent decline in new death sentences. The latest report from the Houston Chronicle's Lise Olsen ("Nearly 400 capital murder convicts get life without parole," Nov. 29) confirms precisely Grits fears since the LWOP law was created:

In six years, Texas has built a "lifer's row" filled with 398 prisoners who will never be released through parole - a fast-growing group that already has outpaced the number of inmates serving a death sentence in the Lone Star State, a Houston Chronicle analysis of prison records shows.

Harris County prosecutors, who historically have led the state in seeking death sentences, have so far also been the most aggressive in pursuing capital murder charges and obtaining mandatory life without parole sentences in capital cases.

Texas became the last of the death penalty states to approve life without parole in September 2005, after Harris County prosecutors dropped their opposition to the change. The law applies only to offenders convicted of capital murder.

She could have added that the Legislature this year, regrettably if perhaps predictably, began to tack on life without parole sentences for non-capital crimes as well.

Texas actually has far fewer "lifers" incarcerated in TDCJ compared to many other large states, both with and without the chance for parole - e.g., at last count, around 6% of Texas prisoners were serving life sentences, compared to about 20% in California.

Grits considers the expansion of LWOP sentences and life sentences generally, coupled with the failure to adequately fund prisoner healthcare, as part of a growing Californication of the Texas prison system, putting us on a track that, in the medium-to-long term, finds TDCJ butting heads with US Attorneys and federal judges, an experience corrections veterans in Texas will perhaps not entirely pleasantly recall from the days of Judge William Wayne Justice's rule over TDCJ from the federal bench. As old-timers at TDCJ or California's current prison mandarins would tell you, this is an outcome to be avoided at all costs, not blithely courted. It's an area where, when the state can't handle its own business, the feds eventually handle it for you, then pass on to the state a (much higher) bill.

Do I expect any current Texas leader to seek to reverse this trend? Probably not. The public may even support handing out more life sentences, in theory, even if in practice they don't favor paying for the costs of a bloated prison system. healthcare for elderly inmates, or for that matter passing those costs onto their grandkids 40 years from now. But as a Johnny-come-lately to the LWOP entourage, Texas still has the option of dissociating itself from this ill-conceived corrections fad before the nascent policy, as it has in California, gets seriously out of hand. With Corrections Chair Jerry Madden and several other reform-minded legislators headed out the door, I don't know who might emerge as a champion on that score. But the state could sure use one.

RELATED: From October, see "Bubble in expanding life sentences, LWOP driving TDCJ health costs for older inmates." ALSO: See a comprehensive report (pdf) from the Sentencing Project from 2009 on the explosion of life sentences nationwide.)

Jamming cell phones in prison debated at US Senate committee

A US Senate Committee yesterday heard testimony from Texas state Sen. John Whitmire, TDCJ Inspector General John Moriarty, and others regarding a proposed bill by Sen. Kay Bailey Hutchison that would change federal law to allow states to jam cell phones in prison.

Though Texas instituted a "zero tolerance" policy on cell phones last year after a death row inmate called Sen. Whitmire's office (leaving an open question what level of "tolerance" they operated under before), the senator told the committee that strategy cannot succeed, according to AP: "'Short of jamming and a complete shutting down of those phone signals, I don't think we can remedy the problem,' Whitmire told the Senate Committee on Commerce, Science and Transportation. 'It is a public safety problem.'"

Information Week provided good coverage from the hearing ("Senate mulls jamming cell phone signals in prison," July 15):

The proposed legislation seeks to have Congress revise a 1934 law that blocks the jamming of phone signals. The bill, which would permit jamming cell phone signals in prisons, has been sponsored by Senator Barbara Mikulski of Maryland, who noted that a prison inmate in Maryland used an illegally obtained cell phone to order the killing of a witness.

"Just more than two years ago, Carl Lackl, a young father of two in Maryland, was killed after an inmate used his cell phone to order a hit," Senator Mikulski said in a statement. "This is not an isolated incident and it must stop. All across the country, cell phones are being smuggled into prisons and being used by inmates to communicate with criminals on the outside."

The other side of the issue was presented in a letter to Commerce Committee members by several public interest organizations. According to Public Knowledge the letter maintained that there are ways better than jamming to deal with the illegal cell phones-in-prison problem.

"Jamming prison cell phones would jeopardize public safety because there is no way to jam only phones used by prisoners," said Public Knowledge's legal director Harold Feld in a statement. "All wireless communications could be shut down within a prison

"As spectrum experts have explained, jamming contraband cell phone signals without jamming authorized communications presents an extremely difficult engineering challenge. Cell phone signals use many bands, often proximate to or shared with public safety operations."

To alleviate the problem, Public Knowledge suggested that lowering the cost of legal calls in prisons -- currently costing as high as $300 for an inmate with family -- would help as would a stepped up effort to detect and stop the flow of unauthorized cell phones in prisons.

The flow of illegal mobile phone is eye-popping. California, for instance, confiscated more than 2,000 cellphones in 2008. Phones are sneaked into prisons by visitors and corrupt guards, or simply thrown over prison walls. In Brazil, where the problem has reached epidemic proportions, cell phones are delivered to prisoners by homing pigeons.

The part about the homing pigeons cracked me up. Prison smuggling often produces some surprisingly creative and resourceful schemes, when you pay attention to the details, but that one takes the cake! Guard corruption is still the principle culprit, though; TDCJ caught dozens of guards smuggling cell phones onto prison units after they instituted a lockdown last year.

Wireless companies also opposed the legislation, according to coverage in a Florida paper:

The cell phone lobby is fighting the prison officials. John Walls of CTIA - The Wireless Association (formerly known as the Cellular Telephone Industries Association) told the Chronicle that jamming technology "is imprecise. The problem with jamming technology is that's it's imprecise."

He added: "We're certainly not at odds on the intent. There's not one legitimate customer that we have behind bars, and shutting that off is as much of a concern to the industry as anybody else. … Where we think that perhaps we could do a better job ... is by looking at all the solutions available today and selecting the ones that protect legitimate use while still solving the problem, and that would be cell detection and managed access."

For more detail from critics of the idea, I've uploaded onto Google documents a copy of the letter to Sen. Hutchison from Public Knowledge and other interest groups critical of the jamming proposal.

MORE: Here's a little more detail about the bill from BroadbandConsensu.com that I hadn't seen published elsewhere: "While S. 251 does not call for an outright legalization of jamming technology, it allows for prisons to apply for a waiver from the ban and provides for Federal Communications Commission testing and certification of jamming technology."

See related Grits coverage:

• Hutchison seeks cell phone jamming authorization
  
• Texas prison cell phone scandal making national news
  
• Senate committee examines reasons for contraband smuggling
• FCC has no authority to approve cell phone jammers
• Chasing illegal cell phone use in TDCJ
• Cell phone trafficking in Texas prisons
• Guards and contraband smuggling in prisons and jails
• Texas prison guards smuggle cell phones to inmates
• Even death row not immune to contraband smuggling
• Has TDCJ learned the right lessons from death-row cell-phone scandal?
• Few prison guards fired, prosecuted for contraband smuggling
• New rules for TDCJ phone service approved

Feds look into Texas Youth Commission problems

Increases in abuse, disgruntled staff, and a Department of Justice investigation all suggest that the Texas Youth Commission is facing some serious problems. Despite claims to the contrary from the agency director, having DOJ open a formal investigation into conditions of confinement in a TYC facility suggests that something is very wrong.

According to a 2004 U.S. News & World Report article full of horrifying stories about young people being brutally neglected and abused in state juvenile detention facilities, Texas isn’t alone in its problems. In fact:

Juvenile justice facilities across the nation are in a dangerously advanced state of disarray, with violence an almost everyday occurrence and rehabilitation the exception rather than the rule. Abuse of juvenile inmates by staff is routine. … "Almost every place is experiencing major problems," says criminologist Barry Krisberg, author of a recent scathing report on the California Youth Authority. "There are cycles of abuse, reform, and abuse, and we are in a cycle of abuse."

In an unusually happy turn of events, the federal government has stepped up to the plate to intervene on behalf of incarcerated young people. Says U.S. News & World Report:

Juvenile lockups typically are the provinces of states, which either run them or pay millions to private contractors to do the job. But the U.S. Department of Justice has recently begun attacking abuses in juvenile facilities in an aggressive way. The feds have active investigations or are monitoring settled cases in juvenile justice systems in 13 states or separate territories. ... And more cases are on the horizon. "We have a full-court press on this," says R. Alexander Acosta, assistant attorney general for civil rights. Under a 1980 law, his attorneys have the power to investigate and sue to correct a pattern or practice of unlawful conditions at juvenile facilities. The 1994 federal crime act also allows the department to sue when administrators of juvenile justice systems violate kids' rights. The flurry of suits began during the Clinton administration, but John Ashcroft's Justice Department has more than kept up the pace, doubling the number of new investigations. "No one deserves to be treated this way," says Brad Schlozman, deputy assistant attorney general for civil rights.

Clearly, the ongoing DOJ investigation into TYC is part and parcel of the overall federal campaign to improve conditions of confinement in state juvenile corrections facilities. And, as far as I’m concerned, it’s about time that the feds come to Texas. Allegations about problems at TYC that have recently surfaced in the local media include:

• Vicious and violent attacks on inmates by guards. Attacks at the Evins Regional Justice Center in South Texas reportedly led to baseball-sized swelling when a boy's head was used as a battering ram, and temporary blindness when a guard scraped another boy’s face raw against the concrete. Yet another youth alleges that guards cuffed him and left him outside in the sun for several hours on top of an ant nest, where he was bitten hundreds of times.
• A corrupt complaint and investigation system. Former and current TYC staff claim that they have been asked to change records, lie to inspectors and parents about youth who are injured, and have seen abuse reports and videotapes that document abuse mysteriously disappear
• Lack of responsiveness to family members’ concerns. Parents have testified before the House Committee on Juvenile Justice and Family Issues about their children being beaten by staff members, their grievances being ignored, and their children's sentences being unduly extended, even when the youth were serving time for less-than-serious crimes.

My hunch is that where there's this much smoke, there's got to be fire. Like many, I’ll be watching the DOJ's investigation into TYC unfold with great interest.

A Conversation with Bob Libal from Grassroots Leadership on Private Prisons and Mass Incarceration

Recently I (Amanda) got to sit down with Bob Libal, Executive Director of Grassroots Leadership, to talk private prisons and mass incarceration.  Private prisons have received some well-deserved scrutiny lately, with Mother Jones having published a 5-chapter investigative report on the private correctional industry, and Orange is the New Black bringing private prisons into popular consciousness by setting the fourth season in a private facility.  The recent season of OITB has been covered a fair amount by media, with analyses published by the New Yorker, the New York Times and the Washington Post, to name a few (spoilers within these links!).

Bob has been working on the issue of the private correctional industry with Grassroots Leadership for the past 13 years and was kind enough to share the knowledge and wisdom he's amassed during that time.  Listen to the conversation using the link below or on iTunes here, and find the interview transcript after the jump.

Police union reps sit down with reform advocate for post mortem on Austin-police-contract fight

On December 13, 2017, a contract negotiated between the Austin police union and city management was voted down by the city council in response to a large community uprising led by the Austin Justice Coalition. After nearly a year-long standoff, the sides came to an agreement in November, with the union agreeing to significant new reforms and $10 million per year less than in the previously negotiated contract.

On December 4th, police union representatives Ron DeLord and Chris Perkins sat down with Chas Moore of the Austin Justice Coalition in Grits' dining room to discuss the 18-month-long struggle to install accountability measures in the Austin police union contract. Excerpts from the discussion were included in a segment in Just Liberty's December 2018 Reasonably Suspicious podcast, but here's the full, 38-minute conversation:

For more background, see these prior, related blog posts and podcast segments:

• Union contract fight gave Austin advocates leverage to improve police oversight
• Austin's police contract among worst in nation from accountability standpoint, says Campaign Zero co-founder
• Podcast: Police unions, collective bargaining and accountability (three segments)
• Interview: Campaign Zero's Sam Sinyangwe
• A primer for police union leaders on 'making the guilty innocent' after high-profile incidents
• Interview: Ron DeLord on the Ferguson Effect, police pensions, and why he considers Saul Alinsky a major influence

Find a transcript of our conversation below the jump.

Podcast: Adversaries over Austin police-union contract sit down; when is it okay for courts to electrocute mentally ill defendants?; pythons as stocking stuffers?; and other stories

When is it okay for a judge to electrocute a mentally ill defendant?

What leverage did a Texas civil rights activist say enabled Austin advocates to force reforms into the city's police-union contract?

How many pet pythons are too many, and are they appropriate to give at Christmas as stocking stuffers?

These and other questions are answered on this month's episode of the Reasonably Suspicious podcast. As always, you can subscribe on iTunes, Google Play, or SoundCloud, or listen to it here:


Here's what's in this month's episode:

Opening: Pythons as stocking stuffers?

Top Story

• Principles for progressive prosecutors

Interview
Police-union negotiators Ron DeLord and Chris Perkins sit down with a now-familiar adversary, Chas Moore of the Austin Justice Coalition, to discuss the aftermath of the year-long fight over the capital city's police-union contract.

Home Court Advantage

• When is it okay to electrocute a mentally ill defendant in court? Discussion of James Calvert oral arguments
• Ken-Paxton prosecutors de-funded, but at what cost to indigent defense?

The Last Hurrah

• Dallas PD officer indicted for murder
• Lawsuit challenges driver surcharges
• Ray Hill, R.I.P.

Find a transcript of the show below the jump.

Special election-season podcast: Excerpts from Dallas DA debates; TX bail litigation update; ballot access for jail inmates; plus, conversations on forensics, racial disparities, and regulating 'robot brothels'

Check out a special, hour-long election-season episode of Just Liberty's Reasonably Suspicious podcast. As always, you can subscribe on iTunes, Google Play, or Soundcloud, or listen to it here:


I'm excited about this episode. It includes extended excerpts from a debate between Dallas District Attorney candidates which Just Liberty co-sponsored with a Dallas-area group called Evolve. They had a very interesting and sometimes contentious discussion. (I'll publish audio of the full, hour-and-a-half debate in a couple of days.)

Meanwhile, attorney Susanne Pringle provides the first, detailed update I've heard on the status of bail litigation in Texas in the wake of the 5th Circuit scaling back the Harris County injunction and a new injunction emerging in Dallas. Her organization, the Texas Fair Defense Project, is one of the groups representing plaintiffs in both the Harris and Dallas County litigation. If you care about this topic, give it a listen; no MSM source has yet tried to make sense of this clear-as-mud legal muddle.

Plus, another discussion of unreliable forensics, racial disparities in marijuana arrests, an effort to provide inmates ballot access in the Travis County Jail, and, of course, sex robots.

Here's this month's lineup:


Top Stories

• Houston's proposed robot-brothel ban

Special Report

• Excerpts from the Dallas County District Attorneys debate between Republican incumbent Faith Johnson and Democratic challenger John Creuzot, hosted by Evolve and Just Liberty.

Interview
Susanne Pringle from the Texas Fair Defense Project explains the status of Texas bail litigation and what legislative policy makers should take away from it so far.

Suspicious Mysteries
Probing reasons for differences behind racial disparity between DWI and marijuana arrests in Houston.

Forensic Focus

• Ballistics over-hyped in media coverage
• Junk science writ strikes again: child trauma edition

Interview

Conversation with Hope Doty, who's been spearheading an effort to secure ballot access for Travis County Jail inmates. (There are a couple of unfortunate audio glitches here - my apologies.)

The Last Hurrah

• Prospects for federal #cjreform
• Prison guard beat handcuffed inmate
• Governor Abbott endorses reduced pot penalties

Find a transcript of the podcast below the jump.