'Six Impossible Things': Do you believe in a conservative, rational, and smaller corrections budget?

Today in Texas, state and county government directly supervises around one in 22 adults in prison, in jail, on probation or on parole. Being "tuff on crime" is part of the state's self-promoted persona, one which has garnered bipartisan consensus for decades in support of political and policy decisions that took a "money is no object" approach to crime and punishment. Facing a $15-$27 billion budget gap, that road has now abruptly ended, and state leaders must chart a new path.

The other day I quoted the White Queen from Through the Looking Glass, who famously told Alice that, in her youth, she was capable of believing no fewer than six impossible things before breakfast. Following that theme, this post details Six Impossible Things about corrections policy that the Texas Legislature must come to believe before breakfast on the morning of Sine Die (the session's final day) if their aim is to pass a conservative, rational, and smaller corrections budget:

#1 Prison closures aren't just possible but necessary
It's been said many times, by many different people: Texas has never closed a prison since the first one  opened its doors in 1846, and it never will. There's always a first, though, and it looks like the Central Unit in Sugar Land will be the breakthrough case to disprove that rule, after which I'd expect to see more units follow it to the chopping block.

Beyond the Central Unit, there are several categories of facilities that might reasonably be considered for closure: Older units with higher per-inmate costs. Units with ongoing security problems (Mineral Wells comes to mind; at the Central Unit trusties went on shopping trips to the local Walmart). And units that have chronic trouble maintaining adequate staffing - the unit in Dalhart, for example. In addition, Texas leases more than 11% of its capacity from private prison companies and those contracts could be reduced or eliminated more quickly than state-owned units could be mothballed and sold. In any event, 80%+ of TDCJ's budget is spent running prisons but the agency has focused nearly all its budget cut suggestions on community supervision and treatment. LBB has already warned the Legislature that strategy won't work.

#2 Texas can safely incarcerate fewer low-risk, nonviolent offenders
There are two main categories of nonviolent offenders in TDCJ, both of which particularly predominate in state jails (Texas' equivalent of a fourth degree felony): Drug and property offenders. Pick your poison. For drug offenders, the most obvious and elegant cost saving approach for both the state and local jurisdictions would be to ratchet down criminal charges on drug crimes by one level, as described in detail here and here - not decriminalization but reducing penalties to focus limited resources to house more serious, dangerous offenders.

The other main category of nonviolent offenders are those incarcerated for theft. Texas' theft categories were set in 1993, but have never been adjusted for inflation. That means that if you were to buy exactly the same products in 2008 and 1993, they would cost you $1,500 and $1,027 respectively. Since $1,500 is the threshold where theft is treated as a state-jail felony, every year as inflation rises it becomes a felony to steal less and less stuff. Adjusting theft thresholds annually (the same way all sorts of things are pegged to the annually updated federal poverty levels, for example) would serve the twin purposes of a) diverting more low-level property offenders from state prisons and b) preserving the original intent of the statute.

Nonviolent offenders can be diverted through probation programs on the front end, their offense levels adjusted as described above, or they could be released more frequently on a discretionary basis by the parole board (arguably the least likely scenario) to make room for prisoners who've committed more serious crimes. If significant population reductions are to be achieved, they must come from this category.

#3 Incarcerating more people costs more money
OK, this is only an "Impossible Thing" to believe if you work for the Legislative Budget Board. Historically, the LBB has labeled "insignificant" the extra cost of bills sending new prisoners to TDCJ, increasing incarceration lengths, etc., which gave so-called enhancement bills what's known in capitol parlance as a "zero fiscal note." This useful fiction is a much-desired designation because it means a bill can pass without budget writers having to appropriate extra money to pay for any additional prisoners headed to TDCJ. Already since bill filing began in the 82nd Texas Legislature, dozens of suggestions for new crimes, increased penalties and unfunded mandates related to law enforcement are coming out of the woodwork. These legislators do not yet believe Impossible Thing #3, but somehow, some way, that spendthrift mentality must change.

In reality, as Grits readers are well aware, every extra prisoner brings significant cost. Texas leases extra beds from private prisons in addition to the units the state owns outright. So, because beds are fungible, the marginal cost of every extra prisoner equals the cost of the last prison bed leased. Using that calculation, at a (conservative) rate of $17,000 per prisoner-year, an "enhancement" bill that would send just 20 extra people to prison for two years - a day-for-day state jail felony sentence - would cost $680,000 (multiplying 20 x $17,000 x 2 years). Just because LBB puts a zero on that fiscal note doesn't mean that, when the extra prisoners show up, TDCJ won't be obligated to find somewhere to put them.

Since the Texas penal code was overhauled in 1993, every session the Texas Legislature has created dozens of new crimes and increased criminal penalties, often under narrow circumstances at the behest of special interests. Many of these Orwellian-termed "enhancements" make petty offenses into felonies - e.g., graffiti on a school or church (where kids mostly are), theft of a $35 goat - that should be misdemeanors and waste both court and incarceration resources beyond any measurable public safety benefit.

Committee chairs in both chambers should require that anyone proposing a new crime or increased criminal penalties must either a) convince the relevant budget committees to pay for it or b) simultaneously reduce other penalties to avoid boosting overall incarceration levels. That shouldn't be that difficult, and we'd still see some enhancements pass, but at least it would make legislators begin to think about budget implications and force them to pay as they go.

When you find yourself stuck in a hole you can't get out of, the first thing to do is stop digging. Seriously, folks. Stop.

#4 Community supervision is still punishment
Texas' incarceration fetish stems in part from widespread portrayals by the media and tuff-on-crime opinion leaders that probation is a cake walk. It is not. Many offenders actually choose jail time because probation requirements are more onerous than sitting in jail. But in the end, success under supervision is necessary for all of us to be safer, because most people who go to prison are released. It may seem impossible, but legislators must come to believe there are other viable punishments than prison. Because the per-offender costs are so much cheaper, investments in community supervision get far more bang for the buck than paying for prison beds.

Successfully completing community supervision can be far more challenging (and rewarding) than sitting out an incarceration stint - especially if probation comes with alcohol/drug treatment or other programming that requires the offender to actually change their behavior. Yes, there are folks who are so dangerous there's no real alternative but to lock them away from the rest of us. But strong, evidence-based probation has the benefit of a) avoiding much greater incarceration expenses and b) minimizing recidivism risks associated with reentry. Equally important, victim restitution is much more likely for probationers, a factor I often think is undervalued in punishment decisions on drug and property offenses.

All things considered, forcing offenders to live up to their own responsibilities in the real world often can be tougher than giving them a "time out" at the taxpayers' expense without ever forcing someone to change their ways.

As the LBB has recognized, community-based diversion programming created in 2007 is the main reason Texas hasn't already required 17,000 new prison beds. Eliminating those programs now would boost incarceration costs, not reduce them. As a local probation director bluntly told the Amarillo Globe-News, "If I lose things, it's going to mean more people going to prison." He's right; that's what happened in 2003. That's why, rather than eliminate those programs, the best bet for cutting corrections safely is precisely to expand on the success of Texas' 2007 probation reforms. We must improve our ability where possible to achieve the goals of punishment through community supervision for lower-risk offenders.

#5 Releasing people is what prisons do, so we must do reentry better
Nobody thinks Rick Perry's Texas isn't tough on crime, but every single year, Texas releases between 70-75,000 felons back into the free world. About half of these have completed their sentences and leave with no community supervision; the rest are released on parole. Roughly 97% of incarcerated offenders are ultimately released. From the perspective of public safety, then, what often matters most isn't whether the offender did three years or five, but whether they return to their communities able to contribute to the tax base and participate constructively in society.

Facilitating support from family and help finding employment are the biggest contributing factors to whether an offender returns to prison in a few years, but the House and Senate budgets entirely eliminate Project RIO, which is the main (admittedly deficient) state program for helping offenders get jobs. Every offender who finds employment and begins to contribute to the economy instead of suck from the teat of the nanny state (and prison, where government pays for three hots and a cot plus healthcare, is the ultimate nanny state) represents a tremendous boon to the state budget.

Another strong argument for earlier parole dates: Drug use during the early reentry process is a strong predictive factor for recidivism. In that light, releasing folks with at least minimal parole supervision would probably be a good idea, if only so they'll get UAs during the early months after release and treatment options if they need it. Half of offenders released each year (those who served their time day for day without parole) simply don't get any oversight at all when they enter the free world, whereas if they'd been released a year or two earlier they'd have reported periodically to a parole officer (not to mention cost the state less money).

This is an example where being tougher doesn't make us safer.

#6 The prison bureaucracy is not the best judge of its own inefficiencies
TDCJ is, first and foremost, a government bureaucracy that runs prisons. The idea that the best approach to doing its job might be to close prisons and focus on community supervision (which is run by local bureaucracies they can't completely control), well, that's just one of those "Impossible Things" to believe if you are a TDCJ bureaucrat. With the exception of closing the Central Unit, the House budget as filed largely aligns with suggestions from the Department of Criminal Justice's own proposals for what and how to cut. As you'd expect from any arm of government, TDCJ has suggested budget cuts that protect its own institutional, bureaucratic prerogatives, but at the expense of the public weal.

TDCJ has been asked to live within a budget more than $1 billion shy of its estimated need for the next biennium. If the agency closes the Central Unit as a lone, symbolic homage to frugality but cuts the rest from probation and parole, rest assured the agency will be back in two years with their largest budget request in history, telling legislators they "have no choice" because so many new prisoners are coming in the door. And by then it may be true - that is, if legislators continue to follow the agency's advice in the current round of budgetmaking. Today, though, right now, they still have a choice: Prioritize spending based on maximizing public safety per dollar spent, or ensure that corrections costs continue to spiral upward until some future Legislature finds the gumption to take up the challenge.

Like Fox Mulder in the old X-Files series, I want to believe.

See related, recent Grits posts:

• Whither Texas prison healthcare with 24% budget cuts
• Adult probation cuts detailed from just-filed Texas budget bill
• Texas corrections budget at second glance
• Corrections budget cuts concentrated in community supervision, set TDCJ up to fail
• Sugar Land anxious to get rid of 'unwelcome neighbor'
• Justice solutions offered at TPPF orientation
• Texas budget shortfall dwarfs corrections budgets
• As 2011 budget crisis looms, should most expensive prison units be closed?
• Privatization and the fallacy of zero fiscal notes on criminal penalty enhancements
• TYC produces data to facilitate unit closures: What about TDCJ?