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.