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.