Corrections committee contemplates non-violent drug offenders

"The original intent of state jails fell apart," according to the section of the Texas House Corrections Committee's interim report (pp 43-61 of pdf) on nonviolent drug offenses, because the Legislature prioritized incarceration for addicts over treatment.

Who is nonviolent?
From the committee's perspective, "Nearly 80 percent of individuals in the Texas criminal justice system have substance abuse problems. Substance abuse is by far the most common crime-related problem among offenders. Some individuals enter the justice system because of a drug charge. Others enter on other charges, but drugs are clearly implicated." The report acknowledged the penny-wise-pound foolish flaw in such thinking: "if you are incarcerating the same person over and over again, the costs to actually rehabilitate would be less than incarceration."

Grits should mention here that Fordham law professor John Pfaff has been pushing back on this meme that addiction and the drug war drive crime and mass incarceration. He tends to blame reformers like New Jim Crow author Michelle Alexander for overstating the role of the War on Drugs in promoting the modern prison state. Pfaff points out that offenders convicted of violent crimes far outnumber inmates convicted of drug offenses in US prison systems, a pattern that also holds for Texas. But he poo poos the idea that drug abuse is a causal factor for other crimes.

By contrast, in Grits experience, the idea that drugs are responsible for most crime has historically been a law enforcement meme that reformers had to respond to, even if now Prof. Pfaff would blame us for engaging in the debates of the day without benefit of 20/20 hindsight. Moreover, there's little doubt drugs play a role in some portion of violent offenders' cases. In Dallas, for example, the interim chief blamed their recent murder spike in part on armed raids of drug houses by competing cartel factions. And back when murder rates were super high in the early '90s, much of the carnage stemmed from drug dealers feuding with one another over turf. So some unquantified amount of violence certainly does stem from the drug war (though what ratio, Grits cannot form even an educated guess).

Indeed, the committee's definition of "violence" may be more expansive than Prof. Pfaff's. They identified 46 low-level drug possession crimes on the books, but concluded the list by opining that, while the laws "are technically considered non-violent, they are not emotionally non-violent."

Whatever one's definition, non-emotional violence has declined over time in Texas, while low-level drug convictions continue to rise. "While the overall number of people sent to prison dropped between 2011 and 2015, the number of people sentenced to state jail for drug possession was two percent higher in 2015 than in 2011. It costs the state more than $67 million to incarcerate people in state jails for low-level drug offenses in 2014."

State jails evade prison oversight
The committee heard testimony from a few people who thought state jail terms for drug offenders should be lengthened so that (mostly nonexistent) treatment programs will have time to work. But the committee wasn't interested in the extra expense. They also raised in passing an interesting notion Grits hadn't considered in years - that state jails were created as a separate entity from the formal prison system in order to take these prisoners out from under prison oversight litigation:

An interesting side note: one of the reasons the state jail system was created was to ease overcrowding in the prison system and the county jails. But the fact that they are meant for short-term confinement means that they do not fall under Ruiz constraints. Lengthening the confinement period could result in future litigation revolving around these facilities.

I'd forgotten about that distinction. Grits tends to agree that state jails are a failed experiment and the original intent behind them was long ago supplanted by the state's 90s-era incarceration fetish. At the end of the day, promises of treatment and rehabilitation were a fig leaf to justify building new beds that wouldn't be subject to prison oversight litigation. One could add, those who do not learn from history are doomed to repeat it - the intermediate sanctions facilities created in 2007 similarly would be excluded from Ruiz prison oversight regimens because of short lengths of stay. At the time, to my knowledge, no one in the advocacy community considered that element.

Recommending a path forward
The committee's recommendations on punishing drug users track some of items Grits predicted last year would rise to the fore of justice discussions this session:

Legislators should consider lowering the penalties certain felony drug charges that are considered non-violent in nature. For instance, drug activity in a school zone automatically becomes a felony, when an individual may not even be aware they are in a school zone. Specifically, charges that involve personal possession of small amounts of marijuana should be examined. This means possession ONLY, not manufacturing and/or delivering. Offenders should still be considered for a treatment program, no matter if the charge is reduced to a misdemeanor. 

Further, regarding enhancements on drug crimes:

Legislators should consider narrowing the scope of penalty enhancements, particularly offenses committed in drug-free zones. Such zones can be difficult to distinguish, especially in urban areas. Obviously, there is a difference between someone selling a controlled substance to a minor on school property, and a motorist being stopped in a school zone with a controlled substance in his car. This committee is not advocating a free pass for any offender, rather the circumstances of the violation and previous arrest records (if any exist) should be taken into account. 

They recommended funding a system set up in 2011 to incentive probation departments not to revoke petty offenders. Moreover, "Pre-trial release programs should be considered for non-violent offenders, to make room for those who need to be there."

See prior Grits coverage of other sections of the committee's interim report:

• Committee backs boosting programs to prevent recidivism
• House Corrections Committee rethinking probation fees