Lies, damn lies and LBB fiscal notes: Why it's really not free to make K2 possession a felony

Marc Levin from the Texas Pulbic Policy Foundation emails to alert me to another absurdist budgetary claim on criminal penalty enhancements from the Legislative Budget Board: A "zero Fiscal Note for legislation making K2 possession a felony!" (K2 is a form of currently legal, synthetically produced marijuana.) Suggested Marc, "You might want to explore on Grits how this legislation could have a zero fiscal note given that it makes possessing even the smallest amount of K2 a felony. I guess they assume if it is outlawed, no one will use it. But that has not been the case with other drugs!"

I wish that were the case. I'd like to believe LBB fiscal notes promote such absurdities because of an honest error, because somebody there really does believe that nobody will be incarcerated under such a statute if it becomes law. But nobody actually thinks that.

The problem is, fiscal notes on enhancements aren't actually mathematical calculations, they're political ones. Bills that LBB knows for a fact will increase the number of prisoners routinely are dubbed "insignificant" in cost, despite the fact that we must lease extra beds for them from private prison contractors. There's literally only one criminal enhancement I've ever seen which gets a fiscal note - bills increasing penalties for burglary of a motor vehicle (BMV) from a Class A misdemeanor to a state jail felony - and the only reason is back in 2005 a bunch of us spent months fighting with LBB over it until they finally caved. But just on that one bill. Even bills sending the same number of people to state jail as BMV get "insignificant" fiscal notes.

Rep. Allen Fletcher just passed a bill out of House Criminal Jurisprudence enhancing a crime from a Class B to a first degree felony that, according to testimony, would apply to 130 people per year just from Houston, but it's supposedly got an "insignificant" cost. And Sen. Leticia Van de Putte's human trafficking bill has several enhancements LBB didn't account for. Everywhere you look, bills increasing criminal penalties are passed at the Lege with no regard at all to the costs of incarceration. By contrast, LBB acknowledges that bills reducing incarceration pressures save money, but not the converse. And the worst part, there's little evidence such enhancements reduce the behaviors they target. So the expenditures not only are unaccounted for, but taxpayers get little bang for the buck.

I hate to use words like this, but the budgeting process on criminal sentencing is simply dishonest. And it's equal opportunity dishonesty. Democrats and Republicans play the same game. Such slight of hand benefits politicians as a class, sorta like lobby perks. It's become a staple ploy for legislators to use "enhancements" to symbolically align themselves against this or that activity that's annoyed some class of their constituents. Graffiti's a great example: We see bills boosting penalties every session, but prosecutors secure fewer than 300 convictions annually statewide compared to tens of thousands of crimes. Yet boosting clearly ineffective penalties even higher is the only solution ever proposed, even though the clearance rate for the offense is so low the punishments never apply to most taggers.

At the municipal level folks may try more practical approaches, but for whatever reason, there seems to be a fundamental failure of imagination at the Lege when it comes to addressing social problems like drug abuse and graffiti. Instead, partially because it's considered cost-free in the budget, the knee-jerk legislative response to every fresh complaint is to propose criminalizing a disliked behavior or increasing punishments if it's already against the law. That usually doesn't stop the behavior, but in the next election cycle the politician gets to say they were "tuff" on whatever disliked activity they've targeted.

If LBB would just do its job - calculating the number of extra prisoners from such bills multiplied by current rates for private prison beds - lawmakers would be forced to secure appropriations for every enhancement bill they pass. Even better, maybe, just maybe, legislators would be forced to think through problems constituents bring them more carefully, set priorities, and actually come up with cost-effective solutions that work, maybe even that save money. In any event, Texas won't see real, fundamental reform in the criminal justice arena until LBB fiscal notes are based on math, not political expediency.

See related Grits posts:

• 308 bills push tougher penalties
• Time for Truth in Sentencing Budgets from LBB
• On expanding the death penalty, budgets, and unfunded mandates
• Copper theft: Case study in failed criminal penalty enhancements
• Why is creating new felonies the solution to every social problem? Immigration edition
• Predictable as bluebonnets in spring: Biennial march of the enhancements begins anew
• Dozens of new crimes proposed at Lege: Will LBB man up and assign them fiscal notes?
• 2,383 and counting: How many felonies from the 82nd Texas Legislature?
• New crimes, penalties 'enhance' nothing but spending side of state, county budgets
• Privatization and the fallacy of zero 'fiscal notes' for criminal penalty enhancements 
• Bigger priority on vehicle burglaries: Solving crimes or harsher punishment?
• Levin: Time to rethink what's a crime
• 'Absolutely irresponsible': Okies boosting criminal penalties but can't house inmates they've got
• Parole board: Texas created 59 new felonies in 2009
• Penalty hikes represent a failure of imagination