Grading Texas' Sentencing Reforms

How does Texas fare compared to best practices among other states struggling to contain out-of-control prison population growth?

Thanks to the Social Science Research Network, I was glad to find this Note by Ben Trachtenberg from the Michigan Journal of Law Reform entitled, "State sentencing policy and new prison admissions." Trachtenberg this spring analyzed prison admission patterns to determine which states experienced actual declines in prison admissions, then offered qualitative case studies of the policies enacted in those states -- North Carolina, Connecticut, and Florida -- to determine best practices for states that want to lower their prison populations.

It turns out, that's a lot of them. Trachtenberg found that, "In 2003, about half the states eliminated some of their mandatory minimums, reinstating parole and early release programs while offering treatment to some drug offenders rather than imprisonment."

Trachtenberg identified three policies that contributed significantly to lessening incarceration pressures in his case-study states, all of which offer important lessons for Texas:

• Fund a range of alternatives to incarceration including drug treatment and other intermediate sanctions programs,
• Computer modeling of prison costs to accurately estimate the financial impact of policy decisions, and
• Accurate "Fiscal Notes" estimating the costs of legislative penalty increases.

Those are the main methods that worked in the states the author examined, especially in North Carolina, where he says the state's "experiences cry out for imitation." Texas prisons are full and the state is struggling with an overincarceration crisis. What kind of grades would Texas leaders get if their efforts were judged by Trachtenberg's best practices?

Fund a range of alternatives to incarceration: Texas completely gutted these programs in 2003. But in 2005, the state ponied up new resources in the form of three "budget riders" that direct new money be spent on local probation departments that enacted progressive sanctions models for low-level offenders. Governor Perry vetoed HB 2193, which would have further strengthened the probation system by mandating changes instead of just offering funding-based carrots promoting reform. The Lege has a history of indifference to incarceration alternatives, but now appears to have seen the light. By contrast, the Governor's veto of stronger probation left the state in a real bind.

Computer modeling of criminal justice costs: The abolition of the Texas Criminal Justice Policy Council by Governor Perry in 2003 via line-item veto ended Texas' ability to provide expert computer modeling of incarceration patterns for all practical purposes. Before that, the agency was underfunded and often ignored.

Accurate "Fiscal Notes" for penalty increases: In 2005 for the first time, Texas' Legislative Budget Board began to give positive "Fiscal Notes" for a handful of bills mandating penalty increases, and the debate over penalty increases often centered on budget concerns. In previous years, fiscal notes for every penalty increase were always zero, usually with a footnote stating the agency couldn't accurately estimate how many additional prisoners would be incarcerated. LBB's Fiscal Notes, though, are highly politicized, whereas Trachtenberg called for Fiscal Notes that were "respected for honest evaluation of proposals." That hardly describes Texas' process.

In addition, Trachtenberg approvingly notes a national trend away from mandatory minimums, three-strikes laws and incarcerating low-level drug offenders, while lamenting the continuing trend in states like Florida (and Texas, he could have added) where legislators continue to increase penalties without also financing adequate prison space.

Texas' incentive to change is great, but initial reform efforts on these fronts compared to national best practices afford a clear overall assessment: Struggling; needs improvement.