Ideology, interest and Texas probation reforms

Congrats to our friends at the Texas Public Policy Foundation (TPPF) on a glowing front-page Wall Street Journal article yesterday crediting them with Texas' 2007 de-incarceration reforms and authoring a national wave of mimicry by conservatives in other states. The article is behind their paywall but Doug Berman at Sentencing Law and Policy excerpted a substantial chunk. The article perhaps credits TPPF too sweepingly with prompting Texas' reforms - other organizations and Republican committee chairmen were already promoting probation reform before the group ever created its Center for Effective Justice. But their role in metastasizing the idea that small-government conservatism should also apply to corrections spending among the conservative movement and its network of state-level think tanks around the country cannot be overstated.

Berman suggests that the Right on Crime movement can't be successful unless it becomes something on which politicians can actively campaign in Republican primaries. I disagree. GOP pols don't have to campaign on these topics to enact them. Rather, the Right on Crime philosophy and backing from prominent conservatives provides an ideological basis for responding when they're attacked. It creates the political cover necessary to govern, the lack of which is one of the things that stifles all action in D.C..

What's often lost in ideological discussions about Texas' probation reforms is that, on the front-lines, Texas' was a reform effort prompted more by managers than movements, and more by the expense of incarceration than a distaste for it. Also, the push for probation reform began prior to the 78th session in 2003, more than two years before TPPF jumped into the criminal-justice fray.

In 2003, after years of comfortably lobbing Molotov cocktails from the back bench of the Legislature, Texas Republicans found themselves in firm control of all three branches of government and both chambers of the Lege for the first time since Reconstruction, just in time to confront a crippling budget crunch. Former House Corrections Committee Chairmen Ray Allen and Jerry Madden both tell the same story of then-Speaker Tom Craddick coming to them prior to their first session as chairs, issuing an eight-word demand that would change their lives: "Don't build new prisons. They cost too much." From a partisan political perspective, then, Texas' probation reforms were a Republican solution to the pragmatic demands of governance.

Meanwhile, especially in larger and mid-sized counties, probation directors around the state were paying attention to a growing body of evidence about the benefits of strengthening probation (or in Texas' parlance, "community supervision") but applying it for shorter stints, a field of research referred to by practitioners simply as "what works." And since probation directors work for judges, once those professionals began to think and talk about changing their own systems to align with evidence-based practices, quite a few long-time judges began championing reform based purely on self-interest and pragmatism. Perhaps the best-known example is Judge Michael McSpadden, a Republican jurist in Harris County who for the past few sessions has gotten most of his Harris County judicial colleagues from both parties to sign onto a letter asking the Legislature to take less-than-a-gram cases off their dockets by reducing the charge to a misdemeanor. But many judges over the years have supported reform and for the most part, their positions do not vary much according to party. In the case of specialty courts, in particular, dozens of local diversion efforts were launched with grant support from the Governor's office.

Finally, county commissioners courts of all stripes over the last decade struggled with jail overcrowding and/or the costs of massive, overbuilt jails that were constantly being launched. Today those pressures have mostly abated, but just a few years ago they were sometimes severe. Typically, jails are the largest line item in county budgets and their costs have driven local property tax increases across the state. Voters in Smith and Harris County rejected new jails and that seemed to free up county commissioners elsewhere to begin openly talking about alternatives to incarceration without seeming "soft on crime."

So Texas' now-famous probation reforms - which consisted primarily of substantial new funding for stronger community supervision, though far less than new prisons would have cost - represented a confluence of interests among state and local actors throughout the system all facing budget constraints. After leading reform efforts, both Chairmen Allen and Madden faced challengers in the following election cycle who tried to paint them as soft on crime. But both won re-election anyway, taking some of the steam out of the issue politically. Then the wave of national praise, copycats from other conservative states, and of course Rick Perry's presidential run caused Texas Republicans to own the reform agenda to a greater degree than ever before.

None of this is intended to diminish TPPF's role so much as to place it in context. They're doing important work but their role complements several institutional interests - particularly local courts, probation departments, and state and county budget writers - whose priorities for the most part drive the train whenever reform actually occurs. (The reduction in prosecutors' clout during this period also played a role.) For other states to replicate what happened in Texas - or for that matter, for Texas to travel further down the path to reform; after all we still by far have the largest prison population in the country - at least some of those institutional players must be on board.

There's a subtle interplay of ideology and interest underlying the achievements of criminal-justice reformers. And, as one of my long-ago college profs Peter Trubowitz first taught me, lasting public-policy reforms in general only happen when the two become aligned.