Friday, January 18, 2013

LBB recommends sentencing commission to enhance consistency, contain costs of criminal sentences

The Texas Legislative Budget Board has issued their "Texas State Government Effectiveness and Efficiency Report: Selected Issues and Recommendations" (pdf, pp. 271-280), and the portion on criminal justice offers up a fascinating suggestion (or really, two related ones):
Recommendation 1: Amend statute to establish a sentencing commission to review Texas sentencing laws comprehensively to align penalties with offenses, modernize laws, and study statewide sentencing dynamics every ten years.

Recommendation 2: Include a contingency rider in the 2014–15 General Appropriations Bill to appropriate $1.15 million in General Revenue Funds to operate a sentencing commission and implement a statewide sentencing dynamics study.
Among the concerns spawning this reccommendation:
Although the Texas Legislature modifies provisions of the Texas Penal Code every biennium, the last comprehensive review of the code occurred 20 years ago. It resulted in removal of some obsolete offenses and adjustments in punishment for other off enses. However, some of the Punishment Standards Commission’s recommendations resulted in longer sentences and longer probation terms for some offenses. Longer sentences contribute to growing system costs, and there has been no thorough review of sentencing laws since then to adjust for these increased costs.

Sentencing policies affect sentence lengths and prison admissions, which affect prison populations. Any changes in these factors can have a significant effect on available criminal justice resources. Despite modest prison population decreases, costs to incarcerate offenders continue to increase steadily from $2.0 billion to $2.5 billion from fiscal years 2007 to 2013.

Recommendations made by sentencing commissions in other states have resulted in significant savings and prison population decreases. Texas lacks a process to assess sentencing practices and may be foregoing savings and other efficiencies that may be achieved through sentencing reform.
LBB's report laments a trend Grits has described before in some detail: The eye-popping expansion of prison inmates in Texas compared to general population growth in recent decades. "The correctional institution count of approximately 14,000 prisoners in 1970 has increased to more than 152,000 in fiscal year 2012, a 963 percent increase during the past 40 years. The Texas population increased at a significantly lower rate of 125 percent in the same period." Citing the Vera Institute of Justice, the report asserts that, "growth in prison populations during the past several decades is not due to increased crime, but to sentencing policies that have increased the number of offenses resulting in incarceration, the length of sentences, and the length of probation."

According to the LBB, Texas established periodic commissions to evaluate sentences in the penal code about once per decade beginning in 1971, but the last such effort occurred in the early '90s, making such a re-evaluation long overdue. The report describes how similar commissions in other states have resulted in significant cost savings:
Sentencing commissions have addressed costs through recommendations often characterized as getting “smart on crime.” For example, in Alabama, based on recommendations from the state’s sentencing commission, the Legislature authorized increases in the number of community corrections programs by nearly 80 percent from fiscal years 2003 to 2008. The state estimated that placing offenders in prison, rather than community corrections, would have cost the state more than $23.0 million in operation costs in fiscal year 2008, rather than the $6.1 million appropriated for community corrections that year. Similarly, in 2003, Kansas passed legislation providing for alternative sentencing policies for non-violent drug possession offenders. The Kansas Sentencing Commission operates the program, which requires first and second-time low-level drug offenders to be sentenced to community corrections intensive supervision instead of being sentenced to prison. Since its implementation, the Kansas program has grown to serve approximately 1,400 offenders per year that otherwise would have received less treatment and supervision. Often sentencing commissions recommend enhancing penalties for some crimes, while minimizing others. In November 2009, for example, the Colorado Commission on Criminal and Juvenile Justice recommended increasing the allowable amount of marijuana (from one ounce to four ounces) that can be possessed and qualify as a petty offense. In the same report, the commission also recommended re-categorizing the level for the first felony offense of selling marijuana to a minor. The recategorization resulted in an increased penalty.

Another notable example of a comprehensive sentencing commission is that of South Carolina. Established by legislation in 2008, the commission worked closely with the Pew Charitable Trusts’ Center on the States. Pew’s Public Safety Performance Project is well respected by states working to review their criminal justice systems. In February 2010, the sentencing commission made recommendations to the South Carolina Legislature, which were overwhelmingly approved and implemented that summer. The legislation required a comprehensive review of the state’s laws relating to sentencing and parole policies. Significant changes enacted include: expanding the list of violent crimes, creating an attempted murder offense, and requiring drug offenders to pay drug-treatment court fees. At the same time, the new laws reduced the penalty for non-violent burglary, expanded probation options for first and second-time drug possession offenders, and established good behavior incentives for those on supervision. Additionally, the legislation established an oversight committee to monitor implementation and to report on the amount of cost savings, of which 35 percent would be transferred from prisons to probation and parole operations. In its report, the commission anticipated helping the state avoid $317.0 million in new prison construction and save $92.0 million in prison operating costs over the next five years due to a reduction in the number offenders being incarcerated.
A sentencing commission in Texas, says the LBB, should focus on the following priorities:
  • study sentencing practices across the state;
  • balance county and state criminal justice responsibilities with resources;
  • identify offenses whose penalties should be adjusted to better align them with the severity of the offense;
  • analyze how community supervision, parole, and sentencing terms in Texas compare to other states’ terms;
  • devise an approach that would allow the state to balance sentencing policies with correctional resources; and
  • enhance consistency and reduce disparity in sentencing.
Grits applauds the idea of a sentencing commission to fulfill those described purposes, but I wonder at the wisdom of making it permanent and can see good arguments on both sides of the question. On one hand, every session the Legislature creates dozens of new crimes and penalty enhancements, so perhaps a permanent sentencing commission would help rein in that ill-conceived legislative habit. At a minimum, perhaps the additional data they'd be authorized to gather would provide more accurate assessments of the costs of penalty enhancements, which LBB's budget estimators generally claim, contrary to reason and common sense, may be approved by the Lege with no additional cost to the taxpayers. Best case: It could provide institutional support for continuing and expanding de-incarceration initiatives begun in 2007, which made a good start at reducing incarceration pressures but plateaued instead of expanding in the following two biennia.

On the other hand, a permanent sentencing commission at the federal level has worsened the problems the LBB proposal aims to resolve, enhancing "consistency" and reducing "disparity" by boosting sentences and associated costs instead of moderating the most extreme sentences. Federal judges routinely grouse about mandatory minimums and harsh sentencing guidelines that they feel force them to hand down unjust sentences.

Still, at this historical juncture the state could seriously use the sort of comprehensive evaluation LBB called for in these recommendations, and in the near term it's a good idea. Members of the Legislative Budget Board are appointees of the Governor, the Lt. Governor and the Speaker and their proposals frequently end up rolled into legislation that enjoys the blessing of the leadership. That doesn't ensure its passage, of course, but one can expect the suggestion at a minimum to be seriously considered.


Anonymous said...

With do many finally being paroled, most who never should have been sent to prison, how are they going to make a living? When will the Lege start hiding the conviction from employers who can see the conviction and refuse to hire that person?

It's great the Lege finally, sorta realizes these people should not have been locked up, but give them the chance to get a life. Hide the conviction from employers. Give everyone paroled a chance for a life>

Skifool said...

Here we go again. Adding another bloated bureaucracy (wasn't it called Punishment Standards Commission in 1992?) to rehash every cockamamie sentencing idea ever pitched. I think you are too optimistic, Grits, that another sentencing commission might come up with ideas that the legislature will buy into that steer us toward more probation/parole rehab programs. The biggest problem in Texas with building any kind of common sense into sentencing is that there is such a disparity in sentencing in the different counties in Texas. You are correct that the legislature doesn't help matters by increasing penalties and adding offenses without thought or input from both the defense and prosecution. I could go on but I think I'll just wait and play off other comments. I appreciate your coverage of events.

Seaamy said...

If the parole board was to actually follow the guidelines and recommendations issued by the Sunset Advisory Commission when they vote on an inmate’s file that is up for review it would have a considerable affect on the population and the amount of tax payer dollars needed. Not all people that have been convicted for a violent crime/3g offense are actually violent offenders. There are many that have been incarcerated for nearly 20 years or more for a 3g offense that had happened when they were basically still a kid. They work the system, have completed all classes that are available, Have held a consistent job within the prison. Have no disciplinary cases. Overall they are the model the model inmate.

However, they just get “set-off” after “set-off”. Even though, according to the point system that the board is supposed to use as a guideline when they vote, they meet all the criteria for release. Their age at the time they were convicted, no prior violent offenses and/or no prior criminal history period! With each review they demonstrate the existence of a solid support system in place upon their release and even have employment set up. Many that are incarcerated for cases that are not a 3g offenses, like drug cases will get paroled without meeting even close to the same criteria that a lot of the 3g offenders have. They also have the biggest risk for reoffending and the majority of them do. The parole board spends about a minute and half scanning through each file. You cannot even request a face to face unless you have been incarcerated 20 years or more. Therefore, when they see that the inmate is a 3g offender…that’s all they see. They simply stamp their file.. “Denied: Nature of Offense.” The Nature of Offense will never change however, people ARE capable of changing!!

What needs to be done is an in-depth audit of all the inmates that have been denied two or more times for parole. Any inmate that does meet the criteria according the point scale that they are “suppose” to use as a guideline for voting, should be released.

*Length of time they have been incarcerated
*The age that they committed the offense they were incarcerated for.
*What they have done during the time they have been in prison; classes, employment, amount of disciplinary cases, trustee status… etc.
*The amount of support they have established if they were to be released

I don’t mind my tax dollars being used to house those that are a danger to society and due to their history are likely to re-offend given the opportunity. However, at an average cost per year of $21, 390 per inmate….that’s a lot of money being spent to house an inmate that by all other means does demonstrate that they have been rehabilitated and no longer would be a threat or danger to society if they were to be given the opportunity to be released.

For example, I do have a loved one that is incarcerated for a 3g offense that he was convicted for when he was just 19 years old. He will be 40 years old next year. By the time he comes up for review again it will be his 3rd time since he became eligible, receiving a 2 year set-off (Nature of Offense) for both his 1st and 2nd reviews. He has had no disciplinary cases in over 10 years. He has completed all and any courses that are offered and has taken many additional courses through correspondence. He has maintained consistent employment for 15 years and has even received many promotions. He has also achieved a level 2 trustee status (the highest a 3g offender can receive) and has a strong established support system as well as employment once he is released. By all other means he is the ideal example of a “successfully rehabilitated inmate.” However, because his crime is a 3g crime they don’t even take the time to consider his case further. Meanwhile, by the time of his next review he will have cost the tax payers $128,340.00. That is a $128,340.00 to house an inmate that according to TDCJ’s own guidelines is deemed releasable nor is he or would he be considered a continued threat to society.

Seaamy said...

He is just one example of probably 100’s if not more. However, let’s say that there are 100 inmate’s total that who are identical to him and would fall under the same category. Same amount of set-offs and all up for review again. If instead of just stamping their file “DENIED: Nature of Offense” due to it being a 3g offense, if they actually went by the guidelines when they voted and if they actually do meet all of the criteria and were released. That would save $2,939,000.00, which is what it would cost tax payers per year to keep them in prison! That’s a lot of tax dollars that could be spent elsewhere on much more needed programs that are hurting. Inmates are basically just cash commodities for the state.

There should be a statewide audit throughout all prisons of all the inmate’s who have served a certain amount of time and have already been reviewed but, have received more than one set-off and if it is determined that they do fit all the requirements for release..then RELEASE THEM! Otherwise, as far as I am concerned.. find someone else to pay to keep them because I sure as hell don’t want to pay to keep those that don’t need to be!!