Economic concerns misplaced on probation fees

A fascinating debate took place on the floor of the Texas House yesterday that bodes well, I think, for proposed community supervision reforms in that chamber. (You can watch it here, beginning at the 3:52 mark.) Speaker Pro Tem Sylvester Turner brought HB 312, which is really a rather small bill that transfers the burden of proof from defense to the state in indigency determinations for purposes of revoking probation.

In other words, before they could revoke someone to prison for non-payment of fees, the bill would make prosecutors prove based on a preponderance of the evidence that someone could have paid fees but refused to do so.

The final vote was tight - 81 for and 63 against. But what gave me particular hope was the substance of the debate. With the exception of Rep. Dan Gattis (whose opposition was more measured and on point - he wasn't worried about money, he said, but "muddying" the code), opponents of the bill spoke against it arguing from a basic misunderstanding of who pays what, when, and why regarding probationers, fees, and revocations.

Rep. Jim Jackson, in particular, was dissatisfied with Rep. Turner's assurances that the District and County Attorneys Association had signed off on the bill with the addition of a floor amendment. He said the real interest that should be at the table was the Texas Association of Counties who pay attorneys, gather probation fees, etc. Jackson and Rep. Larry Phillips appeared primarily concerned about costs to county taxpayers when probationers don't pay fees and court costs, implying that HB 312 was really some sort of unfunded mandate to local government.

Such concerns are missplaced, and I think if the economics of crime and punishment were better understood by House members, support for the bill would have been much wider. Here are the key points Reps Jackson and Phillips were missing:

When probationers are revoked, counties STOP receiving fees entirely, forever. Offenders who can't pay this month might be able to pay next month. Offenders revoked to prison for an average of 4.3 years (an average cost of $66,000 at current rates of $42 per day) won't be able to pay the county ANYTHING. Revoking offenders costs taxpayers money, not only to incarcerate them in prisons but also by relinquising any county claim on fee revenue.

Besides, as a taxpayer it hardly matters to me which branch of government spends my money - if counties shift costs to the state, it still comes out of my pocket. Probation costs a little over $2 per day; incarceration costs $42. If their only new offense is indigency, I'd rather my taxes finance the lesser expense for the same person, whatever level of government pays for it.

Jackson and Phillips' myopic focus on fees, Rep. Terri Hodge pointed out, isn't just economically misplaced, it actually threatens public safety, which should be the bigger overarching concern of the justice system rather than money. The threat of incarceration for non-payment of fees potentially could lead indigent defendants to commit new crimes to pay probation costs and keep from being incarcerated. If a probationer successfully paid their fees because they burglarized my house and pawned my stuff, that defeats the purpose. That's why debtors prisons, as Rep. Lon Burnam pointed out on the floor, are such a bad idea.

The bill would affect only a small number of offenders - those with no additional violations beyond failure to pay fees. Rep. Gattis claimed that "never" happened except as part of plea agreements; according to Rep. Hodge, about 1% of probation revocations occur for failure to pay fees. So we're talking about between 0 and 1% of probation revocations - a bill that only affects the margins, at best.

To bottom line this: It's worrying to see so many members opposing Rep. Turner's bill, but emcouraging, also, that the terms of debate are essentially on the cost issues that most benefit proponents of reform. Though they didn't seem to realize it, Jackson, Phillips and Co. were arguing for higher costs to taxpayers and worsened public safety outcomes. With luck, debates over major legislation still to come on these topics will help educate members better to avoid knee-jerk opposition based on factually mistaken analyses.

UPDATE: HB 312 finally passed the House (5/1) and now heads to the Senate. Perhaps a short cooling off period gave members a chance to read the bill and consider their constituents' best interests. On third reading, Rep. Turner picked up a whopping 42 additional votes, passing his bill on a final tally of 123 ayes to 20 nays. Even Reps Jackson and Phillips, who vigorously opposed HB 312 yesterday, supported the bill on final passage. Here's the list of hard-line holdouts; if one of them is your state rep, call to let them know you wish they'd voted the other way and hope they'll support other probation reforms the rest of the session:

Anderson(R); Aycock(R); Bohac(R); Callegari(R); Cook, Robby(D); Crownover(R); Flynn(R); Gattis(R); Hardcastle(R); Harless(R); Hilderbran(R); Jones, Delwin(R); Latham(R); Macias(R); Miller(R); O'Day(R); Otto(R); Paxton(R); Phillips(R); Van Arsdale(R)