Thursday, November 04, 2010

Is conservative mandate on criminal justice to "git tuff" or save money?

So Republican voters swept 22 Democrats out of the Texas House of Representatives, and unlike in Washington where Republicans realize they're still relatively unpopular, Texas conservatives are taking the transformation for a mandate.

But is there a mandate on criminal justice? And if so, is that mandate to "git tuff" or to save money? Polls show prisons are one of the few areas where the public favors major spending cuts. What would Ronald Reagan do?

The coming session will be dominated by two factors, one inherently partisan and one almost purely practical: Redistricting and the budget crunch. On redistricting, having extra incumbents to protect is a good problem to have, but it means to protect all their seats they can't gerrymander out Democrats quite as vigorously. But that's insider baseball. The area where the GOP base will be more vigorously engaged will be how to respond to a $25+ billion revenue shortfall.

Governor Perry, most of the new legislators, and a fair proportion of incumbents have all insisted they will not raise taxes to solve the shortfall. A Grits commenter summed up the prevailing sentiment among grassroots conservatives and Tea Party types: "Let the carving of government programs begin."

Realistically, though it's nearly impossible to slash that deeply into government and still provide basic functions. (The Dallas News concisely laid out what that slash and burn approach would like.) On some government functions like healthcare and transportation spending, the state loses more federal money than it's spending if they don't pony up their portion for state-federal matching funds. So, for example, every dollar saved cutting Medicaid reduces by $2 the amount of federal taxes paid by Texans that comes back to the state economy.

Similarly, the "Robin Hood" system of financing schools via property taxes is almost hopelessly broken and the long history of litigation and constraining mandates surrounding how that's done don't go away just because someone wants to "carve" the budget. Cuts to state funding for schools would boost local costs.

So federal dollars constrain spending cuts on healthcare, welfare and transportation, while local spending constrains cuts aimed at schools. Cuts can and likely will be made in these areas, but barring utterly irrational decisionmaking, they cannot and will not reach the draconian levels required to balance the budget with no new revenue.

It's my belief that prisons and corrections spending are one of the few areas which can actually be substantially cut - that with a few, key policy changes, billions could be saved over the next few years if a significant number of prison units are closed and judges are given more options to supervise and punish offenders in the community. Doing so, however, would probably require (among other things) rationalizing our system of punishment for non-violent drug crimes.

Few recall that during Texas' last big budget crunch in 2003 - which incidentally was Speaker Tom Craddick's first session and the beginning of modern Republican dominance at the Texas Legislature - Craddick's Corrections Committee Chairman Ray Allen proposed legislation to reduce drug penalties for less than a gram cases to a Class A misdemeanor from their current state-jail felony status. According to the fiscal note from the original, introduced version of the bill, that move would have saved the General Revenue fund $242,252,418 over five years. LBB predicted the state would save just $38 million in the first biennium as the policy kicked in, but after the third year, savings would grow to $72 million annually. That bill didn't pass as filed - it was amended to keep the state jail felony charge but mandate probation on the first offense - a change which diverted some 4,000 offenders per year from Texas state jails. Naysayers predicted the worst, but crime continued declining and few if any complaints ever arose about the switch.

The current budget crisis raises the same question Chairman Allen faced in 2003: Should drug penalties be reduced to save money on prisons and corrections spending? Simply reducing the charge for less-than-a-gram possession to Class A on the first and second offenses - perhaps enhancing to a state jail felony on the third offense - would divert thousands more offenders from Texas state jails every year. And if history is any guide, the change would have little or no impact on crime rates. With a budget shortfall nearly triple the one from 2003, I don't see how the discussion isn't at least on the table.

To mitigate the impact on counties of reducing less than a gram offenses to a Class A misdemeanor, it'd be wise to simultaneously reduce low-level marijuana offenses from a Class B to a Class C misdemeanor. Legislation to that effect passed out of the House Criminal Jurisprudence Committee in 2005 - with staunch conservatives like Debbie Riddle, Mary Denny and Terry Keel voting for it, no less. While the LBB in the past has claimed such reductions cost counties money because of lower fine amounts, in reality Class Bs cost counties more because of extra jail time, low payment rates for higher fines, and the fact that counties must pay for indigent defense for charges higher than a Class C.

The Calendars Committee that year refused to give the bill a floor vote, though counting heads I still believe the bill would have passed the Texas House if it had received an up or down vote on its merits. It just makes too much sense to stop focusing scarce law enforcement resources on pot smokers when Class C fines would generate revenue from them instead of cost taxpayers money. We wouldn't be the first state to go that route. Though California's voters narrowly disapproved legalizing marijuana outright on Tuesday, their Legislature recently lowered user-level possession to a citation-only offense with a $100 fine, keeping low-level pot smokers out of the jails entirely and eliminating the need for counties to pay for indigent defendants' attorneys. A TV station summarized: "The law is designed to ease the court systems in California and save taxpayers money."

Anyway, if past is prologue, perhaps Allen's idea for reducing less than a gram penalties from 2003 coupled with a reduction in marijuana penalties similar to that approved by the Criminal Jurisprudence Committee in 2005, could be combined to reduce criminal justice costs at all levels going forward. Both ideas have enjoyed support from conservative GOP legislators in the past (Debbie Riddle, who voted for the 2005 marijuana bill in committee, today chairs the Appropriations Subcommittee on Criminal Justice) and conceivably could pass on a bipartisan basis if the Lege really gets serious about saving money.

There are other, relatively simple ways to reduce incarceration rates at the margins, like indexing theft categories to inflation. But mostly the Lege needs a change in attitude: They need to cease creating new crimes and mindlessly boosting penalties for old ones with no thought to long-term costs. And they must stop applying criminal penalties as the solution to every social problem. It's not working and we can't afford it.

Under normal circumstances, with so many new conservative House members, speculation about reduced criminal penalties might seem outlandish. But radical crises call for radical measures and if the Lege really won't raise taxes in the face of a $25 billion hole in the budget, they're going to need to consider policy changes and budget cuts that might have seemed unimaginable just a few years, or even months, ago. Indeed, to actually keep a no-new taxes pledge, they'll have to enact much more radical changes than the ones described above, by a longshot.


doran said...

Grits, how much would be saved by reducing the number of offenses involving (1) oysters and (2) goats?

I don't see how the Lege can not raise some taxes or invent some new ones. The raises are likely to be in sales taxes, and various fees -- things like theater ticket taxes, license plate taxes, drivers licences, cigs, gasoline and diesel fuel, charges for disposing of old tires. All those things that will spread-out the tax raise or new taxes over a very wide base. And the amount of raises will be small the first year: Republicans have correctly guaged that most Texans will complain initially and then in a few months forget about it and forget who was responsible for it.

Gritsforbreakfast said...

Oysters, probably not much. The one on goats might actually be significant, especially if you coupled it with indexing theft categories to inflation.

Prison Doc said...

I hope they opt for "save money". The throw-away-the-key option is not helpful. My mind gets boggled every day by the length of sentences I see in my daily work. I'm sure that all crime victims want life without parole, but I would like for average joes to realize that even ten years in a cage, albeit a big one, is a LONG, LONG TIME.

Hook Em Horns said...

Grab your kids and hide your wallet, the Texas legislature is about to open for business. This is a great opportunity for the legislature to slash prison spending blaming it on the recession.

Texas politicians will NEVER admit that being tough on crime, which translates into 112 prisons, a rate of incarceration that would make Edwin Edwards blush and the creation of more felony class convictions than any state in the country has been a mistake. Never, ever will they admit they were wrong.

Anonymous said...

For once Grits and I agree on something. Reduction of criminal charges for pot offenses. The Legislature needs to release all the low level pot heads TDCJ. Next in my professonal opinion all pot offenses under 4oz would be a Class C and all amounts above 4oz up to 2 pounds would top out at a Class A Mis. This would save tax payers thousands of dollars and would collect fine amounts for the most common possession amount which is under 4oz. I also agree with reducing the controlled substance offense by one level SJF to Class A and so forth.

By the way many police officers have already put this into practice by writing possession of drug paraphernilia Class C citations for pot offenses under 2oz. In the past the citations were usually written for possession of "tools of the trade" such as bongs, pipes, scales, roach clips and other drug use tools. By writing these citations it keeps us out on the streets and not tied up in the jail booking recreational drug users, most of which are high school and college kids from middle class familys.

Anonymous said...

Last Monday Britain’s Independent Scientific Committee on Drugs ranked alcohol on a laundry list of the 100 most dangerous drugs as being the most dangerous with a 100 ranking, marijuana ranking at number 20, tobacco weighing in at number 26.

I’m amazed that legalization did not pass in California giving me reason to wonder “what it is they’re smoking,” supporters blame it on the older more conservative turn out, I guess I misjudged Californians, I would have guessed differently.

I just can’t help but believe that legalization will come eventually, till then by all means use cuts in spending as the reason to reduce its criminal act to the minimum, and while they are at it cut Pre-trial release from the budget and stop them from dispensing drug tests to presumed innocent people and clogging up the booking process so that people can get out of jail quicker. Then do away with the capias profine and stop clogging up the jail with class c misdemeanants that serve no other purpose other than a cost to tax payers. Reissue the warrant and allow them ability to merge back into the system and continue paying off their fines instead of being saddled with the impossibility of paying the fines in full.

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Anonymous said...

"It just makes too much sense to stop focusing scarce law enforcement resources on pot smokers when Class C fines would generate revenue from them instead of cost taxpayers money."

In 2007, you cited two articles where 10% of Texans were wanted on traffic warrants. By adding more citable C offenses, I think these numbers go up.

"While the LBB in the past has claimed such reductions cost counties money because of lower fine amounts, in reality Class Bs cost counties more because of extra jail time, low payment rates for higher fines, and the fact that counties must pay for indigent defense for charges higher than a Class C."

You sure about that? I thought all indigent persons, regardless of the level of crime charge, have the right to counsel.

Class C offense are jailable in the sense they do arrest in some cases for the initial offense and most certainly they do when you fail to appear.

We want to help reduce jail populations, petition the lege to not allow incarceration for any C offenses period, regardless if the original offenses, fail to appear or fail to pay.

Gritsforbreakfast said...

6:23, that's true, as far as it goes, but you can't solve all the problems of the world at once. The 10% with arrest warrants are in large part a function of the Driver Responsibility surcharge. IMO that doesn't mean you don't use lower charging levels where appropriate.

And yes, I'm sure the county doesn't pay for indigent defense on Class Cs. They can arrest for them in Texas thanks the the SCOTUS ruling in Atwater v. Lago Vista and the Governor (twice) vetoing legislation to override it, but the maximum punishment is fine-only. I agree with you about no arrests for most Class Cs and in 2001 and 2003 pushed hard for the bills Perry vetoed on the subject. You can't win 'em all.

9:54, glad you kept reading long enough to find something we agree on - now tell your elected representatives the same thing you wrote here! I couldn't agree more that the issue of wasting scarce police resources is one of the strongest arguments for making this switch.

Anonymous said...

I’m not so certain that the warrants we now have for class c’s are in large part generated by the Driver’s Responsibility Surcharge since millions were generated previously and continue to be generated by the capias profine and this needs to change as I stated above. The Driver’s Responsibility Act is just plain wrong; it’s overreaching and should have been repealed not adjusted.

Government needs to be more responsible with how they spend as well as how they collect. The carrot and stick approach works for class c misdemeanors so do not fix things that are not broken.

The problem with eliminating real consequences for class c misdemeanors is that it offers up nothing more than a clay pigeon and if we are going to send our police officers out for target practice then the idea is to get something in return or at least that’s obviously the desired end result for local government.

By reissuing the warrant for a capias profine a door opens that allows citizens the ability to continue to pay their fine. Many more will choose payment of fine over going to jail and the government would enjoy a windfall of millions of dollars in needed revenue and at the same time eliminate the wasted time, money, and jail space needed for jailing a ton of class c misdemeanants. Instead of clay pigeons that net nothing now they get two birds with one stone and this simple approach doesn’t cost tax payers anything for non-profits to analyze it to death and prepare page after page of reports to mail off to every elected official in the state.

Anonymous said...

For clarity, when I suggest to reissue the warrant for a (capias profine) the way it is now if a person fails to appear in court or fails to appear at the cash register to make a installment payment toward their already assessed fine the court orders a capias profine warrant issued that eliminates the ability to continue making installments payments and demands that payment in full be made. If this warrant were simply reissued with the ability to post bail as with any other warrant then most citizens would chose to merge back into the system and continue paying over going to jail.

Anonymous said...

"Conservatives" will immediately try to cut "big-government." There will never be any mention as to the Perry administration's policies (redistributing the wealth - taxpayer money - to the wealthy) creating the current crisis. We'll pay for this (including hidden taxes, such as tolls/fees).

I notice on the Texas Parks and Wildlife job website that immediately two jobs appeared. One for Budget Analyst and one for Big Game Program Specialist. Take a look at Perry's appointees to the TPW.

I see no positive future for criminal justice in Texas.

I anticipate Perry further (even further!) removing himself from Texas politics (teflon man) as he tries to make an appearance on the Federal level. He'll have big-money supporters.

Will it be Perry-Palin in 2012?

Anonymous said...

Don’t think Palin’s going to run, but if she does the ticket would look more like Palin-Perry…PP for short

Anonymous said...

Texas didn't get into the mass incarceration game because it made public safety sense, we built prisons as a form of inner city poverty control and as a way of tossing a few economic bones to hurting agricultural communities in the hinterland. We may see a small reduction in the incarceration rate while times are hard, but the mechanics of mass incarceration are now solidly entrenched. As soon as the economic picture improves, conservatives will be right back to their old tough on crime ways. America has been through a series of economic downturns since 1982 and none of them placed a dent in the incarceration rate. The current crisis may be bad enough to force temporary reductions, but too many people profit from mass incarceration for the system to change for economic reasons. We need a massive shift in attitude and outlook, and that won't come apart from an intentional movement.

Alan Bean

Anonymous said...

I don't know, I think before "the economic picture improves" there will still be mass incarceration (out of sight out of mind). But conditions for them will be much worse as there will be less resources devoted to criminal justice.

Anonymous said...

I agree that the conditions in our state prisons will deteriorate even more than they are now, and they will never close prisons and let the guards go, because it would put too many people on the unemployment lines (former guards). To Texas lawmakers, it makes sense to lock up these offenders instead of rehabilitating them! They just throw them in prison and throw away the key! Especially the parole violators-- my husband did not have the choice to go to county-- they took him straight to prison! He got 15 years 20 years ago for a bad check (1988) This is a perfect example of Texas justice at its finest!