Thursday, March 03, 2011

Texas 10-12K prison beds short under Senate, House budgets, eyewitness ID clears committee

Mike Ward at the Austin Statesman had good coverage of Tuesday's Senate Criminal Justice Committee hearing, where I spent my day (on behalf of the Innocence Project of Texas) waiting to testify on legislation to require law enforcement agencies to create policies on eyewitness identification procedures and authorize a statewide model policy implementing best practices. See Mike's coverage:
Faulty eyewitness IDs responsible for hundreds of false convictions
Sen. Rodney Ellis' eyewitness ID bill passed out of committee unanimously, with an an inconsequential cleanup amendment from Sen. Joan Huffman, just as Chairman Pete Gallego's companion bill passed out of House Criminal Jurisprudence Committee last week. Since that legislation two years ago died because of time as opposed to any vocal opposition (and no one testified against it in either committee this year), that bill appears to have a good chance of passage.

Exonerees who testified had spent between 13 and 30 years falsely imprisoned, and as always their testimony was powerful and moving. It's quite an honor and a humbling experience to get to work with those guys. I find it unimaginable what's been taken from them, not to mention the courage it takes to have endured such a trauma and then keep coming down to the Legislature to tell them "Change the system so this doesn't happen to somebody else." (Watch the video here; testimony on SB 121 (Ellis) begins at the 58:05 mark.)

Except it is happening somewhere in Texas, arguably, every day Texas courts are open for business. DNA testing has given us a narrow window into the causes of innocent people being convicted - mainly false eyewitness identification, mendacious snitches, false confessions, faulty forensics, and ineffective assistance by defense counsel - but those problems arise every day in many cases that don't have DNA available to clear a falsely accused of defendant. Eyewitness identification errors were involved in the vast majority of DNA exonerations (75% nationally, 80% in Texas), so this bill arguably is the most important piece of preventive policy legislation on the subject the Lege will consider this year.

That was the subject of my own testimony to the committee: The exonerated men who testified, I reminded senators, represent just a small sample out of hundreds or even thousands of other innocent people locked up who weren't so lucky. DNA evidence exists in fewer than 10% of violent crimes, and not at all in crimes like robberies where use of eyewitness identification involving strangers can be key to a conviction. So off the bat, DNA exonerations represent less than a tenth of the total number of innocent people locked up. Then consider that Dallas is the only major jurisdiction that a) kept old DNA samples and b) went back to vet old cases for possible innocence claims. If other counties had done so, there'd be a lot more exonerated men (and maybe even a few women) clamoring to testify in favor of changing eyewitness ID procedures.

Relating estimates of actual innocence from various sources (rounded up recently in this post), which range from .75% to 3.3%, one gets a range of 1,200 to 5,000 estimated innocent people currently locked up in TDCJ. Having examined every published estimate I'm aware of and their methodologies, my own personal belief is that the number of people currently incarcerated in TDCJ who are innocent of the crime they were convicted of is likely 2,000 to 3,000 - maybe higher but probably not much lower.

When you think about it, that range makes sense. Convictions are secured when there is evidence "beyond a reasonable doubt," but not "beyond any doubt." So we assume the system convicts in cases with some doubt, meaning that going in we know sometimes the system gets it wrong. Let's say for the sake of argument that "beyond a reasonable doubt" means a fact finder is 98% sure they're convicting a guilty person. Whenever that standard is applied, 98 times out of 100 the right person goes to prison and twice they convict the wrong guy. But there are a lot of people in Texas prisons, 154,000 or so, which means applying that proportion to the whole system would put the number of incarcerated innocents just over 3,000. If you think "beyond a reasonable doubt translates into 99%, figure perhaps 1,500 or so innocent people are in prison. Either way, Texas' 42 DNA exonerations so far represent just the tip of an iceberg.

Fabelo predicts prison bed shortages without policy changes
At the beginning of the hearing, the committee heard testimony from Dr. Tony Fabelo who described prison population trends and projected the number of increased prisoners faced by the state if diversion programs are cut as anticipated in the House and Senate budgets. By 2013, he said, under the House budget as filed the state would be 12,857 beds short; under SB 1 on the Senate side, TDCJ would be 9,634 beds short. In other words, under either budget Texas will need to build or lease several new prisons over the next two years. (Watch the testimony here, Fabelo is the first speaker; here's a link to his power point presentation.)

Boiling it down, Fabelo said Texas has only two real options: "Reduce the size of cuts" or "Change policies to reduce demand for prison space." That's it, pick your poison. Building or leasing new prisons isn't an option if you want to cut $786 million from TDCJ's requested biennial budget, as Gov. Perry and the House have proposed. The only remaining path is to "Change policies to reduce demand for prison space."

He offered three policy suggestions at the end of his presentation to reduce prison numbers. Option 1 involves implementation of LBB Performance Report recommendations, including a "supervised reentry program for those presently released after completing their [full] sentences." In other words, when someone has completed, say, 90% of their time or have one year to go, they'd be paroled so that their initial reentry period would occur under supervision. That would reduce the prison population by 1,800 over the next two years and up to 9,000 inmates over the next five, says Fabelo.

The second option suggested: "Reintroduce SB 1909 from 2007 and passed by the Senate that requires mandatory probation and treatment for low level drug possession." The five year fiscal benefit to the state would total $500 million. Sen. Rodney Ellis is carrying the bill again this session.

A third option might free up 6,000 additional beds, said Fabelo: Shock probation on technical revocations, capping the time in prison for property and drug offenders revoked on technical violations to no longer than 12 months. That idea is not dissimilar from Grits recent suggestion that judges be required to more frequently utilize Intermediate Sanctions Facilities for technical violators. However you decide to skin that cat, the state can find large cost reductions by changing how they deal with that category of offenders.

Fabelo also suggested taking measures to edge up parole rates toward levels anticipated by the Board of Pardons and Paroles' official guidelines, noting that a 1% increase in the parole rate would reduce the inmate population by 1,500, while a 1% decline would increase the prison population by a like amount. Presently the overall parole approval rate is just above 30%; increasing it to 35%, which is the rate suggested by the board's official guidelines, would free up thousands of beds. There are seven risk categories to which potential parolees are assigned, and it's the lowest risk parolees who are being released at below-guideline rates, i.e., the lowest-risk offenders are the ones the parole board is holding onto longer than the guidelines suggest, a situation that's been happening as long as I've paid attention to the Board of Pardons and Paroles. The BPP could singlehandedly solve this conundrum of their own accord, but they appear to have little interest in doing so unless somebody (read: the Legislature) makes them.

These aren't the only policy changes that would do the trick; indeed, they're really rather modest proposals compared to more aggressive approaches advocated on this blog, and IMO the Lege should go farther. But at least we've finally reached a point - for the first time, to my knowledge, publicly - where legislators have acknowledged that policy changes affecting sentence length must accompany cuts at TDCJ. That's been obvious for more than a year, but at least they're beginning the conversation in earnest now.


Anonymous said...

Scott, SB 883 would have a huge impact and cost-savings,especially in the coming years,as taxpayers would not longer be forced to bear the burden of supervising offenders for years, sometimes even decades, longer than the sentences they were given by judges,. juries,and/or agreed to by prosecuting attorneys.

Also, there is a reason parole rates have been so low since the building of all these prisons. You saw Livingston's letter to his employees when the original budget cut requests were made to the department. In short, he assured them he will fight for their jobs in the name of keeping society safe. If the BPP met its own guidelines approval rate, their sins would find them out: We would all see that the fears were nothing but lies, and that our "need" for additional beds a bunch of political B.S.

I personally know people who have been inside for as much as 14 years for mere technical violations of their parole. These are people who already served their time on the original sentence and were granted parole, only to be revoked later. Now they are having to serve time as if they committed a new offense, despite the fact that they have not committed any criminal offense, not even as much as a traffic ticket, in 25+ years!!!

The Department, the BPP,the BOCJ, and the Governor are doing everything they can to maintain populations, to ensure all prison beds are filled with men and women, so that they won't have to eat their own words and confess to society to their great shame and embarrassment that they did not need 120,000 prison beds to be built in 12 years to begin with.

Don said...

Our (Lubbock) state rep. Charles Perry calls in on a couple of local radio stations on Wednesdays. He seems to like the idea of privatizing more prisons. I don't exactly understand this. Private prisons are paid about the same per prisoner day as what it costs the state. The cut corners on CO to inmate ratio, food, support personnel, programs, etc. So do the state run prisons. But I can't quite see where he thinks the savings are. Conservatives think private is always better than government, but when the issue is money, I don't know. Plus, they're always getting sued. What say you, Scott?

Anonymous said...

My friend, Donald Burton #510779, last committed a criminal offense in 1982, when he was 20 years-old. He has not raped or murdered anyone. His offense was aggravated kidnapping, an offense committed while he was strung-out on heroin. No excuse,just a mitigating factor.

Don is now 50 years-old, has had a job since his second day out, yet he is being supervised on SISP with a GPS electronic monitoring device to boot. The cost of supervising him, according to the Executive Services Division, is $25 a day, versus $3.74 a day if he were to be placed on regular active supervision.

There are thousands like Don. The BPP is pissed because they have to let some of these guys go under the pre-1987 mandatory release statute. Their response is to implement a program designed to fail (SISP) to increase the likelihood of a violation report for being as little as one minute late.

Don has had to leave his work early and without completing required paperwork. There have been occasions where Don has had to break the law -- speeding at 85 mph -- in order to make it home in time. His requests for an additional 30 minutes each night have been denied. His parole officer notified him, "you haven't been late yet, so you don't need more time."

I'm all for being tough on crime, but do we need to pay $25 a day to supervise someone who was last convicted of a criminal offense shortly after Ronald Reagan was elected to his first term?

Gritsforbreakfast said...

Don, there's no real savings to be had from shifting to private prisons. (It's like renting your house instead of owning it if you plan to live there 30 years.) But just like there are cases where it makes more sense to rent a home than buy, there are instances in the short-term where using private prisons make sense, for pragmatic instead of economic reasons. (E.g., quickly ramping up ISF and treatment capacity in 2007.)

That said, to cut as much as Perry et. al. have suggested requires closing prisons and eliminating some existing private contracts. Privatization's not going to get you remotely close to $700 million in budget reduction.

Don said...

Right. And while he' advocating this, they're already canceling GEO's contract on North Texas ISF. I'm not sure that this is the year we needed a bunch neophytes like Charles Perry down there.

Soronel Haetir said...


If you think being high on heroin is a mitigating factor then we have a major impasse from the very beginning.

Getting out from under supervision should be a process that sets people up to fail. They already failed at least once to get under that supervision, it should not be an easy road to recovery.

Gritsforbreakfast said...

Soronel, that said, what do you think of the specific suggestion of limiting technical revocations to 12 months, particularly for drug and property offenders? Is that too "easy"?

Hook Em Horns said...

Don said...
Our (Lubbock) state rep. Charles Perry calls in on a couple of local radio stations on Wednesdays. He seems to like the idea of privatizing more prisons. I don't exactly understand this.
Perhaps, just perhaps, his pockets are being lined by one or more private prison operators.

Texas Maverick said...

Soronel, I don't think you realize the difficulty of complying with electronic monitoring. When you are given permission to attend treatment, work, etc you have a specific timeframe and must be back within your home to allow the equipment to verify you are there. If you encounter a major wreck on the way home (you have to travel a specific route) then you could be in violation and risk revocation. Just because the signs on George Bush say 10-12 mins to Hwy 35, or Mapquest says it takes 45 mins to travel a route doesn't mean that's going to happen. There are traffic delays every day. So, PO need to work with the people who are doing what is required, i.e. get a job, report, stay out of trouble. Using heroin at 20, spending 1/2 your life in prison yet managing to get a job when you get out is to be encouraged. Agg. kidnapping is considered high risk thus the GPS, but the heroin use was a contributing factor and the time spend should be considered. The flippant remark of the PO is disgraceful.

Anonymous said...

Good point, TexasMaverick, but it is even worse than that on GPS. This guy has to anticipate when he will need to stop to get gas two weeks in advance. He can't just stop to get gas or take a piss without prior approval. No joke either, no exaggeration! The guy DID indeed commit an offense in 1982. He has since served a total of 26 years on the inside. The man whose car he stole (i.e. the kidnapping charge) was released unharmed and almost certainly has long ago gotten over the incident. Don has not used an illegal drug in 30 years!!!

My point in all this is that tough decisions are going to have to be made. The Lege is considering cutting funding for everything from schools to programs to treat disabled kids, all the while you and I are paying $750 a month to supervise this person who had not posed any threat to society whatsoever since the time that many of Grits' readers were still pooping yellow, if they were even born. It's about priorities!!!

Anonymous said...

Btw..., Scott, limiting techs to ISF-only, or at least limiting their return to the TDCJ-CID to one-year would be a big improvement and would save millions! Senator Whitmire proposed such a bill last session.

Soronel Haetir said...


Given that I believe that the courts were entirely in the wrong when they started limiting death eligibility crimes, yes, I believe that is too lenient. Certainly too lenient as a maximum possible outcome. It might well be excellent policy for the majority of cases. But just as Gall and Pepper show that there are offenders who get their act together (in the case of Gall without any input from the CJ system), there are offenders who simply aren't able to do so. Far better to figure out who those offenders are as quickly as possible and simply forget about them.

Anonymous said...

I have not seen an actual copy of Fabelo's report. Can you link me to it?

Anonymous said...

As I see it The Legislature and TDCJ is not looking at changing much. No treatment and an increase in beds over time. Yet Dallas and FT Worth ISD are looking at massive teacher and program cuts. I would agree there is a lot of waste and unneeded mandates in Education, that said, so we are going to prioritize Prisons over Education. There is a point where the money has just run out, you can only raise taxes so much and you have to decide, what is the best use of my limited resources.


Soronel Haetir said...

And sad as it is, I would prioritize prisons over education. Those who want to learn will, no matter how little the state spends on the task. Defense of the public from threats both internal and external is one of the few legitimate functions of government. Improvement of the public is not.

Gritsforbreakfast said...

11:41, Tony gave me a hard copy and I didn't find a link to it on their website, earlier, but it's up now! Here it is (pdf), and I'll also add the link in the text.

Hook Em Horns said...

" Defense of the public from threats both internal and external is one of the few legitimate functions of government."



Soronel Haetir said...

Hook Em Horns,

No state in the US is close to my preferred policies, as the courts have ruled that they aren't allowed. Texas wouldn't need nearly so many prisons under the policies I espouse as the vase majority of offenders would be executed. In the meantime, locking people up and keeping them there is the next best alternative.

Anonymous said...

Crime was out of control in the 70's and 80's. Understandably, people had enough and 'get tough' laws were passed in the 90's. Crime rates fell and they have been consistently low ever since. Why this urgent need to go in the other direction is beyond me.

Gritsforbreakfast said...

1:14, no urgency but the $$$.

Where should TDCJ get the $786 million the Governor wants cut from their budget? Or alternatively, what should they do if budget cuts leave them 10-12,000 beds short? If you have an answer that doesn't involve raising taxes, Senators Odgen and Whitmire, I'm sure, would like to hear it.

Don said...

Soronel Haetir said "Texas wouldn't need nearly so many prisons under the policies I espouse as the vase majority of offenders would be executed." Just curious. Would that include just the guilty ones? Or the "vase majority" of all of them? Seek help, Dude.

Soronel Haetir said...


All of them of course. Given that the vast majority of offenders don't contest guilt (though I agree they would if execution were probable), even discounting the innocents caught up in the system the vast majority are in fact guilty. Most of the time it isn't even particularly at issue.

Now, I do agree there are problems in how convictions are obtained, I just don't see changing how we punish people as being at all responsive to the actual problems. The problems of how we convict people need to be addressed on the front end by changing how police, prosecutors and courts operate, not in how we treat a population that for the vast majority guilt is not in question.

Anonymous said...

Again, they should release the prisoners that have are non-violent offenders that have been in for years. This would allow them to contribute to the tax deficit as working taxpayers. I have a friend convicted with a 25 year sentence of auto theft in 1992at the age of 26. The current penalty for this same crime is 2 year state jail, but was never made retroactive. What is wrong with the TDCJ?

DeathBreath said...

You know, when I sit back & watch this political posturing, I am sickened and amused at the same time. First of all, the majority party in Austin is wanting to reduce the budget without having the balls to raise taxes to meet the needs of the state. But, what was more disturbing is seeing a news story showing whining citizens complaining about having to pay for state inmates being housed in county jails. People are a stupid lot. This is nothing but a political ploy to divert attention elsewhere. Hey, cretins from Texas, are you listening? Hey, Bubba "get tough on crime" Idiot, you will pay for people being incarcerated one way or another. So, if I were a criminal, I would surely be watching the places where police are thin, places are under budget, etc. Then, I would pick my crime target & eventually win. Furthermore, the incentive of being a law enforcement officer or prison guard is being taken away by porcine politicians in Austin. Oink, oink, oink. I can't wait for the crime spree to swallow up this state. You ain't seen nothing yet, greedy fools! So, you want to keep officer and prison guards? You are missing the entire point.

Anonymous said...

soronel haetir, I know your book, you left off confiscation of their property and removal of their families to reeducation camps. Under your plan we could also clean out the mental hospitals, state MHMR schools and for that matter nursing homes. I guess in your world only a pure minority would remain.

Sorry Scott I had to respond to this.