Revocations down, crime down, county caseloads up after probation reform legislation

Texas has received a lot of credit recently in the national press for efforts to reduce incarceration rates and stave off new prison spending. Here's an update describing which parts of those reforms are doing the most to reduce incarceration pressures, as well as where and how those reforms aren't quite playing out as state leaders hoped.

TDCJ this week issued its latest report to the Governor (pdf) analyzing the results from expanded prison diversion funding at Texas probation departments, giving us a sense of the initial results from Texas' landmark investments in community corrections in the 79th and 80th Legislatures. (This year's was the 81st, so they're analyzing the program results of already-spent funds.)

In the big picture, these data tell us that Texas' probation reforms have been partially successful. Enacted to prevent exorbitant new prison spending, they were premised essentially on two goals - reducing revocations and reducing probation caseloads. It's the latter goal where the state has most obviously failed, with the felony direct supervision caseload rising instead of falling after reforms were enacted. The number of Texans on felony probation is still expanding wildly - increasing more than 10% since the 2004-'05 biennium. Given that trend, over time, even with reduced revocation rates, the prison population will rise again if more is not done.

If probation revocation rates had stayed the same, Texas would very soon be as much as 17,000 inmates over capacity, according to predictions by the Legislative Budget Board. That has not happened. Revocations in most of the largest jurisdictions are down, reports TDCJ. (Drug offenders account for the largest category of revocations.)

Crime rates in Texas remained steady or declined each year since the 2004-'05 biennium, so it's somewhat remarkable that the number of people on felony direct-supervision rolls increased by 10.2% over that period. Some of that's explained by reduced revocations, but much of it comes because courts are still sentencing ever-more offenders to probation every year. "Statewide, felony placements increased 4.1% from FY2004-2005 to FY2006-2007, and increased 2.3% from FY2006-2007 to FY2008-2009."

That's a weird systemic problem. With crime rates down, higher rates of probation placement are clearly not a function of more frequent criminality. Whatever the cause, it's actually part of a national trend of expanding probation rolls that's often masked when political debates focus solely on high prison costs.

Texas' prison population has recently leveled out primarily because the percentage of probationers revoked to prison declined after reforms implemented in the 79th session. But now, says TDCJ, those numbers are starting to go back up as caseloads rise. "[F]elony revocations to TDCJ are returning to FY2004-2005 levels after a decrease in the FY2006-2007 biennium," according to the report.

In light of these trends, Texas' justice system faces a critical juncture: the state must either fully commit to its baby-step diversion strategies or risk drowning in a seemingly never ending sea of offenders swelling probation caseloads.

A chart on p. 12 of the pdf shows the effects of state diversion funds on these rates. Departments that received diversion funds from the 79th and 80th Legislatures reduced their revocations by 4.14%, while departments that didn't get the money saw their revocations increase by 9.79%. (Departments had to agree to implement diversion strategies to get the money and some didn't want to.) Even more startlingly, departments receiving diversion funds saw technical revocations (for rule violations instead of new crimes) decline by 14.24%, while in departments receiving no funding, technical revocations increased by 11.51%.

Those are startling figures. Given the fact that we've not seen a related crime spike, they suggest that it's possible to reduce probation revocations without harming public safety using the tools employed over the last several years. Now, what will the Lege do with that information? Will they fund programs that work or ignore the results and spend more on prisons? That's the big question facing the criminal justice system heading into next year's elections and the 2011 legislative session.

Since not all departments got diversion funds - and since a handful of departments that received them did not reduce revocations - there is still room for building on the success reducing revocations. (Bexar, Collin, and Nueces counties stand out as jurisdictions where revocations rose most.) But the biggest immediate need is to address expanding caseloads.

A couple of specific aspects of the 2007 reforms were aimed at reducing caseloads: Reducing maximum probation lengths from ten years to five for nonviolent offenders with 3rd degree felonies or lower, and giving judges tools to incentivize good behavior by probationers with the possibility of early release.

Those changes clearly haven't had as much effect as anticipated, in part because initial placements on community supervision (the number of people sentenced to probation in the first place) increased substantially. Also, the bill was watered down at the last minute largely due to efforts by the Governor and Williamson County DA John Bradley, who insisted (wrongly, as it turns out) that the bill would spawn a massive crime spree. The legislation originally would have reduced probation lengths for more offenders all the way up to second degree felonies and affected a lot more people, so that's part of why caseload reduction gains weren't greater.

Another part of the 2007 Madden-Whitmire legislation has been used less by judges than legislators hoped: Provisions requiring judges to consider probationers who follow the rules for early release at the latter of two years or half their probation length. Since then, the number of offenders released from probation early increased by half. But since the provision was seldom used before, that's still not enough to mitigate other factors contributing to expanded caseloads. This is another aspect of the bill that would have had more impact if it hadn't been watered down. More serious offenses tend to be the ones, naturally, with the longest probation lengths.

The idea behind reducing probation lengths makes loads of sense from a public safety perspective. If a judge or jury decides an offender is safe enough to keep in the community and not incarcerate, there's no public safety justification for supervising them on probation as long as ten years. By far most recidivism occurs within the first couple of years; by ten years out, probationers are statistically less likely to engage in crime than are average citizens.

Of course, at the end of the day the state only supplies incentives, while local actors make most of the decisions about whether and how to use these new tools. Three larger counties saw oddly outsized increases in probation revocations (p. 22):

Bexar: 65.1%
Collin: 91.6%
Nueces: 21.0%

By contrast, the other large counties saw fairly big reductions in the number of probation revocations:

Harris: -16.0%
Dallas: -11.1%
Travis: -20.1%
Tarrant: -9.8%
Hidalgo: -2.4%
El Paso: -11.4%
Cameron: -5.0%

Bottom line: In most jurisdictions that received funding, Texas' probation reforms are having the intended effect reducing revocations. But rising caseloads threaten to overwhelm those gains. The situation can't be resolved by any one bill or government agency, it requires coordinating actions of hundreds of independent actors at the state and local level.

In that light, this has been an impressive start. It's been said the most difficult step on a thousand-mile journey is the first one; at least state leaders IMO are now headed down the right road, if they'll only build on these gains going forward instead of retrenching in the face of the coming budget crunch.

Go here to search for data on your own county.