Truth in Sentencing Budgets: How the Lege boosts prison expenses without paying for it

At the Dallas News, Terrence Stutz provides that paper's biennial recounting of new criminal penalty increases passed by the Texas Legislature that go into effect tomorrow ("In Texas, penalties rise for senior fraud, graffiti, drive by shootings," Aug. 31). Writes Stutz,

In all, more than a dozen laws boosting the penalties for certain crimes will go on the books Tuesday.

Legislators raised the stakes even as they have tried to control the size and cost of Texas' prison system. Some critics question whether increased mandatory jail time for various offenses makes sense."

Here's a list compiled by Stutz of some of the new criminal penalty increases. This was actually a relatively light session as far as so-called "enhancements" - some sessions the Lege passes dozens of these things, but restraint in the Senate Criminal Justice Committee combined with the meltdown in the House in the final days kept the number of penalty hikes relatively small this time around. According to Shannon Edmonds from the Texas District and County Attorneys Association, writing in the comments, "By our count, the Legislature created at least 40 brand-new crimes and enhanced the penalties for at least 36 existing crimes." (Yikes!)

Yours truly was quoted arguing that past penalty hikes often haven't impacted the behaviors targeted. But several aspects of this issue come to mind that didn't make it into the story. First, in the big picture, the Legislature pretends increasing criminal penalties is a budget neutral act and so the practice of increasing criminal penalties adds prisoners to the system without adding to the state budget to pay for it.

For example, the article focuses on new legislation boosting penalties from a state-jail to a third-degree felony for committing fraud against seniors. (Leave aside for the moment that the strategy may backfire to the extent those committing fraud are family members if seniors don't report crimes so their kids or relatives won't face harsh penalties.)

It's obvious on its face that increasing the penalty for an offense from up to two years to 2-10 will increase the overall amount of incarceration the state must ultimately pay for - at around $18K per inmate per year in current dollars. But the "fiscal note" for the bill, as is the case for every fiscal note for a penalty enhancement, says there will be no sigificant fiscal impact. That's simply a falsehood put out by the Legislative Budget Board, especially at a time when our prisons are at capacity and the state has not authorized new ones. But it's a politically convenient lie because it allows the Lege to pass criminal penalty increases without relatedly budgeting to pay for the extra costs.

That's the kind of irresponsible if politically expedient budgeting that got California's prison system in trouble by jacking up criminal penalties without simultaneously identifying revenue streams to pay for it.

Indeed, whenever you hear someone complain about "truth in sentencing," i.e., that offenders don't serve the full number of years they're sentenced, this budget phenomenon is the ultimate source of the problem: By lengthening penalties without paying for it, the Lege ensures offenders must be let out before the end of their sentence because there's not enough money available to lock them up. Over time, after the Lege has done this decade after decade regardless of which party is in power, the prison budget becomes wholly inadequate to pay for the number of people the laws say should be sent there.

It should also be mentioned that over the last several sessions, the House of Representatives (especially the Criminal Jurisprudence Committee) has been the biggest source of criminal penalty hikes and new crimes created in Texas statutes. Chairman John Whitmire of the Senate Criminal Justice Committee has been much less sanguine about such legislation, though he finds himself under great pressure in odd-numbered years to let at least a few of those bills pass. Without his strong stance, though, this problem would be much worse.

Finally, although increasing criminal penalties is a bipartisan pastime, it's worth pointing out that Democrats tend to carry more "enhancement" bills than Republicans, a situation that's been true since I've been following the issue at the Lege. My theory is that the Dems feel an extra need need to prove they're sufficiently "tuff on crime." But whatever the reason, that reliable pattern undermines the usual stereotypes about partisan politics and the justice system.

Given that one in 22 Texans is in prison, in jail, on probation or on parole - as many people as live in Washington, D.C. and more people than live in four US states - surely Texas' criminal penalties at this point are plenty high enough. Jacking them up further without paying the bill makes little sense and creates more problems than it solves.

See related Grits posts:

• Bills boosting penalties make statements rather than solve problems
• 40% of Criminal Jurisprudence bills boost criminal penalties
• Hundreds of new crimes, enhancements proposed at the Lege
• Messages promoting sentence 'enhancements' may boost crime
• Penalty increases for scrap metal thieves a bust; better police tactics needed more than harsher penalties
• Felony rap for stealing copper wire hasn't stopped thefts
• Penalty hikes represent a failure of imagination
• LBB hasn't learned there's no free lunch
• Who is to blame for prison red ink? LBB and those who believe them