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.