Can Washington D.C. help Texas end mass incarceration?

Inimai Chettiar of the Brennan Center will speak at the LBJ School in Austin today and as fate would have it she just co-wrote an essay in The Hill suggesting ways the federal government could create incentives for decarceration in the states. Though Grits had earlier paired suggestions from the Brennan Center and Prof. John Pfaff (whose name always makes me think he should be from Pflugerville), Chettiar framed their positions as oppositional, IMO somewhat needlessly.

Chettiar and her coauthor, Lauren-Brooke Eisen, want to roll back federal incentives for overincarceration, but Texas has more prisoners than any other state and the biggest item named was never adopted here. Speaking of the 1994 federal crime bill, they wrote:

Perhaps most significantly, the bill authorized $12.5 billion for states that adopted “truth-in-sentencing” laws, which stipulate an offender must serve at least 85 percent of their lengthy sentences. After the bill was enacted, 24 states passed such laws. As one example, New York received more than $216 million, and by 2000, the state had added more than 12,000 prison beds, incarcerating 28 percent more of its citizens than a decade before. The law was a turning point for America’s philosophy and practices of punishment.

FWIW, Texas was not one of the states that adopted that 85% rule. And their other main example wasn't a perfect fit, either, for 2016 Texas:

The Edward Byrne Memorial Justice Assistance Grant Program (JAG) is another example of the federal government’s role in increasing arrests and incarceration. The program provides around $400 million annually to more than 1,000 cities across all 50 states. It is the largest single source of federal criminal justice funds for states and localities.

For years, JAG funding helped incentivize more arrests, prosecutions, and imprisonment in states and cities. When handing out the money, the federal government asked state and local police departments to report numbers of arrests but not changes in crime rates. It tallied the amount of drugs seized, but not whether offenders were sent to drug treatment. If a state wanted money, it had to produce numbers.

Long-time readers of this blog will recall that, for many years Texas spent nearly all its Byrne grant money on regional narcotics task forces, like the one in the infamous Tulia drug stings, which were judged by similar arrest-maximizing metrics to those described above. But after a series of scandals, legislative interventions, an ill-fated DPS takeover of the system, a sustained, five-year advocacy campaign (see a couple of public policy reports I wrote on the topic for ACLU of TX back in the day), and remarkable episodes of defiance, in 2006 Rick Perry defunded dozens of task forces around the state and split the money toward basically two new priorities: drug courts and border security (which was the first government spending presaging the massive $800 million border boondoggle the Lege authorized last session, though that's a story for another day).

I've always wondered if reduced drug possession arrests - at their height the Byrne-funded drug task forces statewide claimed to make 12,000+ drug arrests per year - might have partially contributed to the leveling off of Texas' prison population in the mid-aughts? Some of those arrests would have still been made by those officers' parent agencies (local PDs and Sheriffs contributed officers to the task forces), but I bet there was some non-insignificant front-end decline.

Regardless, while I agree with the Brennan Center about removing federal incentives, Texas' prison population remains quite large without them, so that won't do much here. More interesting to me was their proposal, discussed in the earlier Grits post, to create incentives for states to safely de-incarcerate:

Congress can pass a modern day crime bill that directs federal funds to states that reduce their prison populations, while keeping down crime. (The Brennan Center has proposed such a bill.) Today, $3.8 billion in federal grants run largely on autopilot, on the outdated notion that increasing prison populations brings us wins against crime. The next president can champion such an Act. Even without Congress, the next president has executive authority to redirect much of this money, helping create a major nationwide shift.

Many states did react to money incentives in the way she describes, and many states would surely adjust to the new incentives as well. Maybe even Texas.

In any event, I see nothing mutually exclusive between Chettiar's suggestions and Pfaff's idea, which was that the feds could contribute money to states for purposes of providing an adequate defense. Either would be good, both would be better.