Two questions and a comment as CA ends driver-license suspensions for nonpayment of traffic tickets

In California, a reader alerts me, the Legislature ended driver license suspensions as punishment for unpaid traffic fines because a government analysis convinced the governor and lawmakers that, “There does not appear to be a strong connection” between the license suspensions and collection rates.

That's certainly appeared to be the case in Texas with driver licenses suspended for unpaid Driver Responsibility surcharges and/or unpaid traffic fines. At this point, suspensions represent around 10 percent of drivers, mitigated only slightly in recent years by a one-time DRP amnesty and a stingy-but-at-least-existent indigence program (which this blog helped secure along with our allies at the Texas Fair Defense Project back in the day).

To this news, Grits has two questions and a comment:

Question One: Grits would love to know precisely what analysis was performed to convince revenue-hungry legislators that suspensions weren't successful at coercing payment from drivers. I think it's true, based on the huge number of drivers in Texas whose suspensions have lasted for many years, sometimes more than a decade. But my supposition is an inference from the data, not a proof. If someone concocted a proof, I want to know what it was so we replicate it for Texas.

Question Two: Among the arguments that convinced legislators to support this bill, one of the most persuasive was that "losing the ability to drive to work can prevent people from earning money and actually make low-income drivers less likely to pay fines." Was this quantified? Can it be quantified? If that dynamic could be demonstrated from the data, and particularly Texas-specific data, I think it would be persuasive for legislators who are currently on the fence regarding license suspensions and the Driver Responsibility program.

The closest I've seen was a 2006 study out of New Jersey, which has the only other DRP similar to Texas'. As Grits pointed out in this 2010 post, 

According to that survey, of persons with suspended licenses whose annual income was under $30,000: (1) 64% were unable to maintain their prior employment following a license suspension; (2) only 51% of persons who lost their job following a license suspension were able to find a new employment; (3) 66% reported that their license suspension negatively affected their job performance; and (4) 90% of persons whose license was suspended within this income bracket indicated that they were unable to pay costs that were related to their suspended driving privileges. In addition, of those who were able to find a new job following a license suspension-related dismissal, 88% reported a reduction in income.

Regrettably, I've never seen that study replicated elsewhere and certainly nobody in Texas has tried to perform anything like it.

We've got a year-and-a-half until the Texas Legislature meets again, so now's the time for this research to be performed before the DRP-abolition effort ramps up again in 2019. Maybe it exists and Grits just hasn't seen it, in which case, shame on me. But if these are things done specifically from California's data, I'd like to know how they were done and if they were replicable.

And now the comment:

In California, according to the above-linked AP article, as of March, "488,000 people had suspended driver's licenses for unpaid traffic tickets or missing court appearances." And Golden-State legislators considered this a big problem they needed to confront.

In Texas, more than 2 million people have had their licenses suspended for nonpayment of Driver Responsibility Program surcharges, with 2/3 of them unable to get them back. Some of these debtors have now gone without licenses for more than a decade, most of them continuing to drive. Even more people's licenses have been suspended for nonpayment of traditional traffic fines. (Hard to estimate because there is crossover between these groups: Emily Gerrick of the Texas Fair Defense Project estimated that, if DRP surcharge debts were eliminated, roughly half of those folks would still have suspended licenses because of unpaid traffic tickets, while others had their licenses suspended for tickets but never incurred surcharges.)

Texas has about 60 percent of California's population, but by comparison our driver-license suspensions are through the roof. Their lawmakers felt the need to nip the problem in the bud long before it got remotely as bad as the situation is here. By contrast, Texas state leaders have allowed this mess to fester for more than a decade! However you want to look at it, Texas' massive volume of suspended licenses speaks far more to the failures of government than its former licensees.

We're approaching a point where such a large critical mass of Texas drivers do not have official credentials because of criminal-justice debt that not having a driver's license becomes a norm for average working people. I hear Americans critique Mexico for tolerating large black markets and unofficial transactions, but that's exactly what happens when Americans can't get the official ID one needs to participate in public life in the 21st century. (E.g., every transaction shifts to cash because credit card companies won't issue credit and no one will take a check without ID.) Grits can't understand why this isn't being treated like the self-inflicted public-safety crisis that it truly is.

The Golden State's experiment will show us whether revenue drops because this extra, administrative punishment is removed. My bet is it won't. Hell, revenue in Texas from traffic tickets barely dropped when the number of tickets issued plunged! ("The number of [new] Class C arrest warrants dropped 42 percent from 2011 to 2013, for example, rising slightly thereafter. Revenue from municipal courts, however, only dropped 3.1 percent from 2011 to 2013.") I'm betting those collections stay pretty consistent. Most people whose licenses are suspended would keep it from happening if they possibly could, they just can't afford to pay their debts to the government.

Grits won't hold my breath, but this issue would look great as a last-minute addition to the special session call. In California, the problem got fixed because the Governor showed leadership. In Texas, a lack of gubernatorial leadership is precisely one of the reasons we haven't come close to solving the same problem.

RELATED: Time for 'Jubilee' on criminal-justice debt.

Texas, California 'junk science writs' should spur bills in other states

Regular Grits readers are well aware of Texas' "junk science writ," which was added to the state's habeas corpus statute in 2013 then amended in 2015. The legislation represented an acknowledgement of the flaws in and lack of scientific basis for many traditional forensic disciplines which were articulated by the National Academy of Sciences in 2009. Though the Texas prosecutors' association dubbed the bill a sign of the "writ apocalypse," elsewhere it was hailed as a sign of progress.

In 2014, California became the second state to expand habeas corpus in this fashion. I've recently learned a bit more about what they did and thought I'd share. Here's a press release from the bill author from when the legislation was sent to the governor, a missive from AP, and coverage from the Washington Post's Radley Balko. See also a fact sheet promoting the bill, which explicitly references Texas' statute as an antecedent.

The poster-child case for the California statute involved bite mark evidence and, as it happens, my neighbor Jordan Smith, formerly of the Austin Chronicle, wrote the most extensive piece I've found describing it for The Intercept. See also earlier coverage from NPR and the national Innocence Project and the California Innocence Project's write-ups of the case.

California's statute was a little different than ours. (Here's CA's bill language.) Texas created an independent cause of action (CCP 11.073) under our habeas corpus statute, while their bill expanded the scope of habeas claims available challenging "false evidence" to include both outdated forensics and experts who later repudiated their own testimony.

FWIW, many Texas attorneys thought that false-evidence claims should have already included these forensic issues based on the plain language of past court holdings. It was the dogged recalcitrance of the Court of Criminal Appeals to expand their jurisprudence in that way which inspired the Texas law. When first drafting Texas statute (I was then policy director for the Innocence Project of Texas), we thought about doing it through expanding the scope of false-evidence claims but decided a stand-alone version would be cleaner and less subject to judicial gamesmanship aimed at thwarting its intentions, which as it turned out was a prescient concern.

It's worth revisiting this history because of the possibility that other states will follow suit, a prospect which tickles me to no end. Grits recently spent some time via phone and email with advocates from a large Midwestern state who want to take on this issue. And there have already been calls in other states to create similar avenues of redress. As justice systems state by state grapple with the myriad issues raised by flawed forensics, which are only beginning to dawn on front-line practitioners, one strongly suspects Texas and California won't be the last to expand habeas corpus in this fashion.

MORE: Hours after this post went up, the PBS Newshour tackled this subject in a segment titled, "Should people convicted based on unsound science be given new trials." 

See prior, related Grits posts on Texas' junk science writ:

• Court of Criminal Appeals judges call out colleagues for judicial activism on TX junk science writ
• Abbott signs bill codifying broad reading of Texas' junk science writ
• Difficult to read tea leaves from oral argument on junk science writ
• Previewing oral arguments on Texas' junk science writ
• Podcast: Tweaking Texas' junk science habeas writ
• Habeas matters: Appointing counsel, codifying Robbins
• CCA: Junk science writ covers bad scientists as well as bad science
• Texas' new junk science writ called 'elegant' and 'phenomenally important'
• Backstory: Texas Observer on the San Antonio Four
• San Antonio Four case, Texas junk science writ lauded in national press
• Fran Keller released based on refuted junk science
• San Antonio Four Roundup
• Godsey: 'Texas now on cutting edge of efforts to free the innocent'
• SA4 to walk free: New Texas statute combats injustice caused by junk science
• Shaky science, un-recorded confession form basis of El Paso habeas writ
• SA 4 may benefit from new habeas statute affording relief in junk science cases
• Neal Robbins writ headed back to CCA after Lege ostensibly passed fix
• Interpreting Texas' new junk science writ
• Judge pondering habeas writ based on erroneous science testimony
• Habeas reform at the Texas Legislature: The backstory
• Governor signs junk-science habeas bill
• Bill to allow habeas relief on junk science cases passes Texas Senate
• Bills would bolster Great Writ for the 21st century, expose prosecutor misconduct
• Texas habeas law needs updating to accommodating changing science
• CCA laments 'disconnect between changing science and reliable verdicts' it helped create
• ME testimony false according to science but not Texas law, or, Elsa Alcala's first solo dance earns spotlight

California's Jerry Brown vetoes legislation similar to Texas' warrant-for-email bill

California Governor Jerry Brown vetoed legislation similar to a bill passed here in Texas last spring requiring law enforcement to secure a search warrant to access cloud-based emails. Rick Perry, by contrast, signed Texas' Tea-Party backed legislation on the same topic.

Gov. Brown also vetoed legislation reducing penalties for low-level drug possession aimed at complying with a federal court order to reduce prison overcrowding. This despite a poll last year that found "62 percent of Californians agree that the penalty for possessing a small amount of illegal drugs for personal use should be reduced to a misdemeanor."

Arguably, conservatives seeking a less-government, liberty-minded approach to criminal justice should just look at what Jerry Brown does and do the opposite.

Deincarceration in California: Evaluating 'realignment' one year in

Last year federal courts ordered California to radically reduce its prison population, and though it hasn't yet met targets set by the judges, their number of prisoners declined radically. That left Texas as the state incarcerating the most people, though the Golden State's population is half-again the size of ours. Many California inmates were shifted to county jails while an even greater number ended up on some form of community supervision. Yesterday was the one year anniversary of California's "realignment" scheme, which shifted responsibility for supervising certain low-level offenders to counties. According to the group, Californians United for a Responsible Budget (CURB)

"The good news about realignment is that there were 30,000 fewer people who spent last night in a cell than there were when Gov. Brown was elected," said Emily Harris of Californians United for a Responsible Budget. "Because the state is spending $800 million less on Corrections than we did two years ago, we avoided another $800 million in cuts to services for poor children and the elderly."

The state's prison population has dropped to 124,701 from a high of 173,479 in 2006 while the state's jail population has increased by 2,849 over the last year. Crime rates continue to fall statewide.

"If we can have 30,000 fewer people locked up in a time of massive unemployment and widespread foreclosures without seeing an upturn in crime, then it is clear we didn't need to have all those people locked up in the first place," said Harris.

The ACLU of Northern California offered less sanguine figures on the scope of reduced incarceration, estimating that:

while the state's prison population has decreased by nearly 25,000 during the past year, counties have increased their own jail capacity by more than 7,000 beds, spending tens of millions of dollars in state realignment dollars to expand jail capacity. Billions of additional dollars in the form of state lease-revenue bonds are in the pipeline for even more jail construction that would create an additional 10,000 beds. This despite the ACLU's new polling data showing that 75 percent of state voters favor investing public money in more prevention and alternatives to jail for non-violent offenders.

That group issued a briefing paper (pdf) predicting that short-term incarceration reductions wouldn't last unless more resources are devoted to programming aimed at supervising offenders in the community and reducing recidivism. An appendix to that document included polling data focused in part on public attitudes toward pretrial detention, presenting:

to voters a hypothetical match-up between two potential candidates for the State Legislature – one candidate who voted in favor of allowing more monitoring in the community instead of jail for people awaiting trial for non-violent offenses running against a candidate who voted against this proposal. The reform candidate won by a nearly 3-to-1 margin with 63 percent to only 23 percent for the candidate opposing the reform. The reform candidate drew bipartisan support and led among Democrats (74 percent to 14 percent), independents (64 percent to 22 percent) and even Republicans (46 percent to 36 percent).

As is the case here in Texas, a sizable majority of inmates in county jails (nearly 70%) are incarcerated while awaiting trial.

It should be noted that the ACLU-NC figures and those from CURB aren't entirely contradictory: CURB compares the present prison population to a 2006 high. And the the ACLU-NC estimated 7,000 beds of expanded jail capacity, while CURB said the the number actually incarcerated in county jails "increased by 2,849 over the last year." While CURB says the prison population reduced "nearly 30,000" in the last year and ACLU-NC pegged the reduction at "nearly 25,000," the San Francisco Chronicle put the figure at 27,000. So the precise figure is apparently a matter of some dispute.

A couple of news stories commemorating realignment's anniversary stand out. For instance, though Alameda County (Oakland), "was already sending 30 percent fewer people to prison than the state average, the county still managed to cut new prison admissions by 39 percent during the first nine months of prison realignment" without a noticeable uptick in crime. There have been some problems, though, as "The already-thin probation department staff had to adjust to a new approach: rehabilitation of its inmates, rather than the traditional 'trail 'em and nail 'em,' or watching for violations that would land probationers back in prison."

There has been tremendous variation among counties regarding how realignment has been implemented, reported the San Francisco Chronicle: "Stanislaus County, for example, has about half the population of San Francisco but houses nearly 1,200 inmates in its county jails - nearly as many as San Francisco's 1,500. The Stanislaus County jails were at capacity even before realignment took effect, and Sheriff Adam Christianson said the influx of inmates this past year - more than the state forecast - forced the jail to release hundreds of criminals, whom he called "the best of the worst." San Francisco, by contrast, "gave probation 81 percent of its realignment funding and spent 19 percent on health and treatment services. A tiny fraction went to the Sheriff's Department, which is operating jails at below its population capacity. The only new beds in the pipeline are at a center intended to help state prisoners transition back into the community during their last two months before release." 

Even critics acknowledge that reported crime statewide hasn't noticeably increased, though they're quick to point to anecdotes to support such a meme. Said the President of the tuff-on-crime Criminal Justice Legal Foundation, "We're not trying to make a statewide case yet, the numbers aren't up, but when you see fires pop up all over the forest, you don't wait a year to say the forest burned down." Given that California's crime rate last year hit a 42 year low, Grits wouldn't be surprised to see a slight uptick, even if realignment hadn't occurred, but I also consider it equally likely the state will follow national trends and see crime continue to drop. My personal view is that with incarceration levels at all time highs, the marginal benefit of extra incarceration is minimal, just as the marginal extra crime from reduced incarceration is likely to be low. Especially for violent offenses, I wouldn't expect realignment as it's played out in California - with significant extra funds shifted to counties to aid with supervision - to have a tremendous impact on crime one way or the other. But with such wide disparities in how counties are using that money, it's difficult to judge at this early stage, and of course, time will tell.

Golden State voters appear poised to scale back 'three-strikes' law

I was fascinated to see recent news coverage indicating that Golden State voters appear likely to approve a ballot initiative reversing an earlier, influential referendum creating California's "three strikes" law. The most recent polling on Proposition 36 shows 81% of voters in favor of the measure versus just 13% opposed. An article published yesterday said that:

If adopted, the law would be retroactive, meaning someone like 25-to-lifer Leandro Andrade could petition the court to resentence him for the 17-year-old crime of filching $150 worth of videotapes in Southern California. Andrade is in the unique position of being a poster child for each side of the Prop. 36 debate.

The California District Attorneys Association—which, ironically, opposed three strikes back in 1994—released a position paper this month citing Andrade as someone with “a horrific criminal history” who might be sprung early if the ballot measure passes. A U.S. military veteran who has struggled with drug addiction, Andrade’s case went all the way to the Supreme Court in 2003; the high court upheld a 50-year sentence for Andrade, who had multiple prior convictions for residential burglary and drug trafficking before stealing a total of nine videotapes from two different Kmart stores in San Bernardino County in 1995. ...

The state prison system is currently home to nearly 8,900 three-strikers. The CDAA claims 4,300 of these inmates could be eligible for resentencing hearings under the proposed law, but says nothing of the 4,000-plus black inmates that make up a whopping 46 percent of the three-strike prison population.

Though the California media seems focused on racial disparities in incarceration rates, I suspect this apparent reversal of public opinion stems in great part from the federal court mandate to reduce overcrowding at California state prisons. Since they're now obligated to either spend billions more on prisons or become more judicious about who is incarcerated, it's unsurprising voters might want to release the guy who stole $150 worth of video tapes to hold those convicted of more serious offenses for longer periods, which was how the law was originally pitched. "Michael Romano, who directs a Stanford University project that represents three-strikes offenders in their sentencing appeals, says California’s version of the law has strayed from its original purpose. 'If you go back to the original arguments used to pass the law,' says Romano, ' 'they said ‘we want to see rapists and murderers and molesters behind bars'.’ It turns out that the majority of three strikers have been sentenced for nonviolent crimes.'"

California's original "three strikes" law launched a wave of similar statutes across the country, so one wonders, if the state scales back the law, will its historic "bellwether" status result in other states similarly reconsidering their own three-strikes statues?

With California de-incarcerating, Texas leads states with most prisoners

Texas now has the largest prison population of any state after California reduced its prison population by tens of thousands, as directed by a federal court order. Reported the Sacramento Bee:

California used to have the nation's largest state prison system, topping 173,000 inmates at its peak in 2006. But since a law took effect last year that shifts responsibility for less serious criminals to county jails, the state has reduced its prison population and is no longer the largest in the nation.

California now has fewer than 136,000 state inmates, eclipsed by about 154,000 in Texas. Florida previously was third, according to 2010 figures from the federal Bureau of Justice Statistics, and currently has about 100,000 inmates.

The reduction in California was ordered by federal judges in a decision backed last year by the U.S. Supreme Court. The courts ruled crowded prisons were causing poor care of sick and mentally ill inmates.

For the record, California's population is nearly half-again as big as Texas' (49% larger, according to the 2010 census), so for our prison population to outstrip their's speaks volumes about overincarceration here.

Comparing inmate population estimates in the story for the four largest states in the 2010 census makes the case even more starkly: Texas imprisons our citizenry 69% more frequently than in California, and at more than twice the rate as New York state. This table compares 2010 census population and crime rates to the approximate number of people in prison for the four largest US states (prisoner totals rounded to match rounded totals from the SacBee article; crime rate source here).


Notice that New York's violent and property crime rates per 100,000 people are substantially lower than here in Texas despite us locking up twice as many people per capita. Indeed, all these states see less property crime per capita than does Texas, and only Florida (another high-incarceration rate state) has a higher violent crime rate among Texas' big-state peers.

The other day Grits ran through a series of hypotheses regarding why crime has continued to decline nationwide despite what appear to be countervailing economic and sociological trends. For those who believe that crime has declined mainly because of "tuff on crime" strategies by the government locking up large numbers of criminals, how do you reconcile New York's success at crime reduction with that state's relatively low incarceration levels? If locking up more people improves safety, why aren't Texas' crime rates lower than in California, or in the Empire State?

Might Texas close more juvie lockups in wake of ongoing woes?

In response to the latest accusations of abuse and violence at Texas youth prisons, reported Brandi Grissom at the Texas Tribune, "some advocates are urging lawmakers to consider closing more state youth institutions."

Given that Texas youth prison populations have already declined by around 2/3 since the 2007 "reforms" (which, since they apparently haven't reformed much, perhaps henceforth we should just call "changes") while juvenile crime has continued to fall, perhaps now's the right time to finish the remarkable de-institutionalization of juvenile justice begun five years ago.

California is doing the same thing on a much smaller scale to reduce prison populations in their adult system - shifting supervision of lower level offenders to counties in a process they call "realignment." Texas counties may not relish the new responsibilities for dealing with the worst behaved youth that comes with realignment in the juvenile justice system, but by all indications over the last five years it has generated superior  outcomes. It makes sense at this point to double down on the policy.

Huge savings from supportive housing for chronic homeless

Grits was interested to see a report out of California about a supportive housing program created for the 30 most expensive, chronic homeless people in San Diego, which reportedly has about 9,800 homeless folks citywide. What struck me is how a) a small number of homeless people account for a disproportionate share of cost to the taxpayers, and b) targeting services to a relatively small number of people resulted in significant savings. Reported the local NBC affiliate:

The initiative housed 30 homeless people in San Diego who were estimated to be costing taxpayers over $11 million in public resources, according to data from the project.

The participants on average absorbed nearly $318,000 before entering the program, estimated in emergency room visits, ambulance transports, in-patient medical stays, arrests and jail days. Those who enrolled were often disabled and continuously homeless for over a year.

After almost a year of being in the program, analysts estimated that the cost of supporting the average participant was about $97,400.

Overall, the project resulted in a nearly 70 percent reduction in costs to taxpayers, the analysts said.

Not every homeless person needs long-term supportive housing. Most homelessness is temporary and transitional, so for them, short-term supports are adequate. But for a small number of chronic homeless - particularly frequent flyers in local jails who may be arrested dozens of times on petty charges - the cost-benefit analysis of business as usual often reaches absurdist proportions.

The problem with such programs is that the costs of homelessness are spread out among many entities - the city, county, state, Medicaid, local hospitals, etc. - and not all those will pay into supportive housing. So the societal cost is tremendous but there is a free-rider problem among institutions that would see costs reduced. On paper, taxpayers overall benefit tremendously. But in practice, when one arm of government pays the freight, the savings are so spread out that that entity may not see a reduction in their own bottom line.

That's why I think it's smart to target a handful of the most expensive, chronic homeless folks for a pilot, identifying people for whom the economics of supportive housing come out positive even for the government entity ponying up the bucks. This is not a problem which may be resolved with a snap of a finger. I'd like to see more Texas cities and counties take on this topic in the same way San Diego did: Start small, demonstrate the concept, and build on success. (Fort Worth has begun to embrace supportive housing, but in Texas they're an outlier.) Often government does nothing on homelessness - or relegates the issue to law enforcement - because doing everything needed would be so expensive that policymakers become paralyzed. In that context, chipping away at the issue around the edges is preferable to throwing up one's hands and simply declaring nothing can be done, or worse, criminalizing homelessness instead of focusing on reducing it.

Rise of LWOP sentences contributes to Californication of Texas justice

Regular readers will recall Grits has oft lamented the Legislature's unwise choice - abetted by prosecutors and death-penalty abolitionists back in 2005 - to add life-without-parole (LWOP) as a sentencing choice for capital murder but to simultaneously eliminate the option for juries to select life with parole (after 35-40 years, if memory serves).

I didn't like it for several reasons, not the least of which is needlessly filling up the prisons with old people that my granddaughter then must pay for. Anyway, LWOP gives too much power to prosecutors in their charging decisions (accept a plea or die) while making us little safer. And LWOP may encourage inmate misbehavior inside the prison by giving people nothing to lose. (A prison-guard commenter at TexasJustice.org noted that all five prisoners in the escape attempt at the Polunsky unit last year, including the three who were shot, were LWOP capital defendants.) Not to mention the growing costs of healthcare for the elderly in prison are so high that incarceration to the end of life, in the majority of cases, simply doesn't pass the cost-benefit test.

So this has never been my favorite Texas sentencing policy, even though observers say it's a partial contributor to Texas' recent decline in new death sentences. The latest report from the Houston Chronicle's Lise Olsen ("Nearly 400 capital murder convicts get life without parole," Nov. 29) confirms precisely Grits fears since the LWOP law was created:

In six years, Texas has built a "lifer's row" filled with 398 prisoners who will never be released through parole - a fast-growing group that already has outpaced the number of inmates serving a death sentence in the Lone Star State, a Houston Chronicle analysis of prison records shows.

Harris County prosecutors, who historically have led the state in seeking death sentences, have so far also been the most aggressive in pursuing capital murder charges and obtaining mandatory life without parole sentences in capital cases.

Texas became the last of the death penalty states to approve life without parole in September 2005, after Harris County prosecutors dropped their opposition to the change. The law applies only to offenders convicted of capital murder.

She could have added that the Legislature this year, regrettably if perhaps predictably, began to tack on life without parole sentences for non-capital crimes as well.

Texas actually has far fewer "lifers" incarcerated in TDCJ compared to many other large states, both with and without the chance for parole - e.g., at last count, around 6% of Texas prisoners were serving life sentences, compared to about 20% in California.

Grits considers the expansion of LWOP sentences and life sentences generally, coupled with the failure to adequately fund prisoner healthcare, as part of a growing Californication of the Texas prison system, putting us on a track that, in the medium-to-long term, finds TDCJ butting heads with US Attorneys and federal judges, an experience corrections veterans in Texas will perhaps not entirely pleasantly recall from the days of Judge William Wayne Justice's rule over TDCJ from the federal bench. As old-timers at TDCJ or California's current prison mandarins would tell you, this is an outcome to be avoided at all costs, not blithely courted. It's an area where, when the state can't handle its own business, the feds eventually handle it for you, then pass on to the state a (much higher) bill.

Do I expect any current Texas leader to seek to reverse this trend? Probably not. The public may even support handing out more life sentences, in theory, even if in practice they don't favor paying for the costs of a bloated prison system. healthcare for elderly inmates, or for that matter passing those costs onto their grandkids 40 years from now. But as a Johnny-come-lately to the LWOP entourage, Texas still has the option of dissociating itself from this ill-conceived corrections fad before the nascent policy, as it has in California, gets seriously out of hand. With Corrections Chair Jerry Madden and several other reform-minded legislators headed out the door, I don't know who might emerge as a champion on that score. But the state could sure use one.

RELATED: From October, see "Bubble in expanding life sentences, LWOP driving TDCJ health costs for older inmates." ALSO: See a comprehensive report (pdf) from the Sentencing Project from 2009 on the explosion of life sentences nationwide.)

Learning from others' mistakes: Solutions to jail overcrowding in Los Angeles

With California state prisons sending offenders back to counties to serve their time, the Golden State's largest jails - especially in Los Angeles - face a near-epic task of reducing incarceration levels to make room for more serious offenders. The Vera Institute has published a lengthy, detailed new report suggesting a variety of approaches, many of which will be familiar to Grits readers, most of which transfer quite well to jails in other large jurisdictions. From the executive summary (pdf):

Vera’s analysis has identified many points at which changes, big and small, could produce a measureable impact on the daily population of the jail. The analysis affirms that there is no one part of the system that owns the problem or the solution. Every agency—from law enforcement through the Probation Department—is touched by these findings and recommendations. The primary goals of the recommendations are:

1. To enable more defendants to be assessed and released at the earliest possible point with the support and supervision they may need to remain safely in the community and return to court as directed.
2. To keep people who come into contact with law enforcement because of mental illness, intoxication, or homelessness from becoming unnecessarily enmeshed in the criminal justice system.
3. To understand and improve the current system of probation supervision, violation, and revocation.
4. To improve the flow of communication and documents between agencies to expedite the processing of people and cases.
5. To highlight the need for everyone involved in the movement of cases to work for a just disposition at the earliest point.
6. To improve the efforts of every agency to maintain a data-keeping system that enhances both administrative efficiency and system-wide policymaking.
7. To improve the fair and efficient administration of justice at all points of the system, which can, in turn, reduce jail crowding.

Many observations in the report almost certainly apply in most Texas jails. For example: "In L.A. County, most detention decisions are not based on an informed assessment of whether an individual poses a danger to society or is likely to return to court. Instead, the decision is based on whether the arrestee has enough money to meet bail." The same could be said for most Texas counties.

Los Angeles County under-utilizes its pretrial services division, says the report, with most cases left to commercial bail bondsmen. Vera says this boosts failure to appear (FTA) rates because offenders not supervised by pretrial services don't receive adequate reminders to come to court. In many cases these were for petty offenses: "Vera staff observed arraignments for people who spent one or two nights in jail for FTA on charges of not paying a $1.50 metro fare." It costs $95-$140 per day to keep them locked up.

As in many Texas jurisdictions, police do not utilize "cite and release" authority as often as they could, and thousands are arrested for public intoxication are released hours after booking, wasting valuable resources.

One interesting suggestion was to "Create triage centers for patrol officers to bring people whose main reason for contact with law enforcement is being drunk, disorderly, or demonstrating signs of mental illness to allow evaluation, time to sober up or detox, or contact family without an immediate, and possibly unnecessary, booking into the jail."

Another problem is that plea bargains "tend to take place toward the very end of the process rather than at the beginning," boosting pretrial detention rates. The report includes several suggestions for processing cases more rapidly.

On the mental health front, "defendants receiving competency treatment are in custody much longer than if they were convicted of the charged offenses."  Vera suggests expanding "capacity to evaluate defendants with mental illness and place them in appropriate community-based treatment facilities."

In general, most larger Texas counties face virtually identical (if not as extreme) problems to those described in this document, and at least some of the recommendations would apply in every jurisdiction. Counties face these problems in an atomic, isolated environment, even though the same problems recur in other jurisdictions, meaning when solutions are identified in one place they usually don't translate to the next jail down the road. As is often the case in life, it's wiser whenever possible to learn from others' mistakes.

Budget reduction for Cali drug task forces not comparable to Texas cuts

Long-time readers will recall that in Grits' earliest days ('04-06), this blog focused a great deal on the flaws and fallacies underlying Texas' now-defunct network of regional, multi-county drug task forces financed by the federal Byrne grant program, at least until Governor Rick Perry took away their funding and shifted it toward drug courts, diversion programs, and border security. Indeed, I've suggested in the past that other states should follow Perry's lead. So I was fascinated to learn (via Drug War Rant) that California will soon eliminate state funds for their comparable drug task force network because they can't afford the 25% state match for the grant. Reports the Eureka (CA) Times Standard:

The California Attorney General's Office issued notice to most of the state's 52 drug task forces -- including Humboldt County's -- that it will be pulling its agents and fiscal support effective Jan. 1 due to sharp state budget cuts to the office's Bureau of Narcotics Enforcement.

In an effort to bridge a then-$26 billion state budget gap, the Legislature approved a $71 million reduction to the bureau's $77 million budget next year -- a cut that will trigger the loss of an additional $40 million in matching funds. As a result, the Department of Justice is expected to lay off more than 200 agents before Jan. 1. Humboldt County Drug Task Force Cmdr. Dan Harward expects to be among them.

”Personally, I'm operating under that assumption,” said Harward, who moved his family to the area from Southern California last fall to head the task force.

According to reports, "In a Wednesday statement, Assemblyman Wesley Chesbro (D-Arcata) said the DOJ cuts won't result in the layoffs of any local law enforcement officers, but 'may result in a reduction of coordination between the Attorney General's Office and local law enforcement programs.'" So unlike here, the task forces aren't just going away.

At their height, Texas boasted 53 regional narcotics task forces employing around 700 officers. Counties and local agencies came up with all the matching funds themselves - mostly in the form of employee salaries and asset forfeiture income - while in Cali there seems to be more state infrastructure, which is what's being cut. California Governor Jerry Brown hasn't proposed nearly as radical a fix as that enacted under Rick Perry, who redirected all the federal Byrne grant money to other areas. They're only eliminating the state's portion of the matching funds, leaving the task forces to operate on their own. By comparison, Gov. Perry first signed legislation to increase supervision by the state of drug task forces, only eliminating their funding when they proved  essentially ungovernable.

So rather than following in Texas' footsteps, in a way California is now devolving to what Texas was doing in the pre-Tulia era, when regional task forces operated with no practical state supervision. With Cali already facing an overincarceration crisis replete with federal court orders to reduce the nonviolent prison population, Governor Brown would do well to follow Rick Perry's lead, shifting Byrne money entirely from low-level drug enforcement to fund treatment, diversion and alternative sentencing instead of just reducing task forces' accountability.

Ban warrantless searches of smart phones

Here's some new legislation out of California I'd like to see passed in Texas. From AP:

Lawmakers on Monday unanimously approved legislation that would prevent law enforcement officers from looking through the smartphones and other electronic devices of people they arrest unless they obtain a search warrant.

The Assembly voted 55-0 for the protections. The bill by Democratic Sen. Mark Leno of San Francisco returns to the Senate, which previously approved it in a slightly different form.

If eventually signed into law, SB914 would override a recent California Supreme Court decision allowing warrantless searches of electronic devices. The court ruled that police could use a suspect's text messages in a 2007 drug arrest without first receiving a judge's permission.

Technology has changed faster than our individual rights have been upgraded to protect from needless intrusion, and today people carry nearly as much personal information on their smart phones as on their home computers. If there's probable cause to go through that information, fine. Let a judge make that determination. But it shouldn't just be something police get to do by rote whenever they arrest someone.

How will California comply with prison population reduction order?

For those interested in how California is complying (or attempting to) with federal court orders to reduce their incarceration levels, the Prison Law Blog had a good basic roundup  recently of a policy that's being dubbed "realignment" (shifting state inmates to county jails) including summaries of what various CA counties are doing in preparation. Adds blogger Sara Mayeux, " If you’re looking for a more comprehensive resource, the ACLU of Northern California has produced a helpful guide (PDF) to the law and how counties can plan for the changes."

Universities won't flock to participate in money-losing prison healthcare

There's a strange and extraordinarily unrealistic proposal being floated on prison healthcare, reports Mike Ward at the Austin Statesman: "Facing a $130 million cut in funding and no fewer patients, officials who operate the network of medical care for state prisoners say they are considering a plan to expand providers to include five additional public medical schools to help those at the University of Texas Medical Branch and Texas Tech University."

Given that Tech and especially UTMB claimed to have been losing money hand over fist BEFORE recent cuts to prisoner healthcare, I have a hard time imagining other universities seeking to get in on the deal without the Legislature forcing them to participate (which couldn't happen before 2013). Hell, UTMB would desperately like to get out of the deal, but the Legislature won't let them.

Another line from the story struck me as at best wishful thinking: "When the Legislature approved funding for prison health care in May, leaders said they were confident the amounts would be enough to cover all the costs — if prison and medical officials worked to make the system more efficient." That's not really accurate. Nobody was confident the new budget would cover all costs, they just hacked away at the budget with a machete without any formal assessment of whether or not constitutional levels of care could still be delivered under the new budget.

Indeed, they'd been told previously that at the old levels of funding prison healthcare was barely constitutional. When the cuts were finalized in May, Grits wrote that "As far back as 2005, UTMB officials said the system was near the brink of failing to provide constitutional levels of care: 'We can't go any farther,' said [Dr. Ben] Raimer, a physician and former chairman of the state's Correctional Managed Health Care Committee. 'I'm certainly not going to be involved with a system that is not constitutional. . . . We're at that line now. One step across it and we're there.' Unfortunately, the state since then has taken several more steps across that line, culminating in this year's outright draconian cuts."

The latest budget cuts coincide with another important change in how prison healthcare is structured, with TDCJ bureaucrats calling the shots now instead of the old Correctional Managed Health Care Committee. Wrote Ward:

The difficulties facing the prison health care system are even more pronounced because the Legislature changed the management structure this year, according to several officials familiar with the discussions but who asked not to be quoted by name because they are not authorized to speak publicly.

Previously, the health care system was coordinated by the Correctional Managed Health Care Committee, created in 1993 to oversee care by UTMB and Tech. The idea was to have a committee with a majority of doctors who could focus on access to care and the quality of care, not prison officials or prison board members, who were not medical professionals.

Now, the Legislature has returned the management to the Texas Department of Criminal Justice, and prison officials are in charge. The committee is shrinking from nine to five members, and the prison board will sign and manage the contracts for care, instead of the committee.

On Friday, the prison board took the first step to take charge, approving a six-month extension of the contracts with UTMB and Texas Tech to allow for new contracts to be negotiated. UTMB and Texas Tech officials were not available for comment.

In the past year, both universities have downsized the hours and staffing at prison clinics to try to stay within the budget. But with drug costs and other expenses rising, they have been hard-pressed to keep up — triggering increasing complaints about slow access to care at many prisons.

Changing the management structure will do nothing to reduce costs and anyone claiming they were "confident" budgeted amounts will cover prison healthcare expenses is either a fool or a liar. Given inflation in the healthcare field and reported losses by UTMB and Tech in prior years, nobody in their right mind could possibly believe the Lege budgeted enough for this line item. One notices that confidence wasn't attributed to anybody willing to put their name on such a ridiculous statement.

At the end of the story, House Corrections Chairman Jerry Madden said, "While we think there are efficiencies that may be realized in the current system, we don't think they should reduce services below what is required. ... I'm sure if they need additional funding, they will come discuss it with us." Well, sir, they already came and discussed it with you: They told you what it would cost to run prison healthcare in TDCJ's Legislative Appropriations Request and y'all slashed it by nearly $130 million. Why would anyone think the Lege would provide "additional funding" anytime in the near future? And even if they ask for more money, the state is broke: Where would it possibly come from?

Texas prison healthcare costs were already among the lowest (per prisoner) in the nation, and the latest budget cut not just to the bone but through it. No matter what discussions happen behind the scenes between TDCJ and legislators (or for that matter, other medical schools), it's clear to me the Legislature is leading the agency down the same path that ultimately caused  a federal court to order California to radically reduce its prison population because of inadequate healthcare. Like California, the Texas Lege wants to cut corrections spending but this session was politically incapable of taking the only action that could realistically achieve that goal: Reducing the number of prisoners incarcerated. So don't be surprised if, given the Legislature's inability to manage its business, sometime in the future the federal courts end up having to do it for them, just like in the Golden State.

Lessons from SCOTUS ruling on California prison crowding

Yesterday the US Supreme Court, on a narrow 5-4 majority, ordered the state of California to reduce prison crowding because of inadequate medical care in a case style Brown v. Plata (see the opinion), ordering them to lower the number of state prison inmates by as many as 38-46,000. When Texas faced similar litigation over prison conditions years ago in Ruiz v. Estelle, it ultimately prompted a massive statewide prison building spree. But with budgets tight California has no money for that, so some prisoners will be released early, some housed in county jails, and their legislature will likely be compelled to divert more low-level offenders from prison on the front end.

Perhaps the most remarkable line out of all three opinions came from Antonin Scalia's dissent, joined by Clarence Thomas, overtly embracing the tenets of judicial activism and the merits of judges imposing their own views when they conflict with written statutes. They announce in the dissent's second paragraph that "There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa."  As I wrote in the comments at Sentencing Law & Policy, these two have now formally embraced the whole "Living Constitution" concept, to judge by this quote. They're explicitly advocating that "tradition and common sense" should trump "the law" when judges disagree with the outcome that following the law would create. What an astonishing view coming from those two self-avowed textualists! So much for "plain reading" of statutes. Apparently judicial activism is the new conservatism.

Returning to questions of prison crowding, it should be said that while Texas prisons have their own share of problems, they pale in comparison to the Golden State: A footnote quoted "Doyle Wayne Scott, the former head of corrections in Texas, [who] described conditions in California’s prisons as 'appalling,' 'inhumane,' and 'unacceptable' and stated that '[i]n more than 35 years of prison work experience, I have never seen anything like it.'”

But that doesn't mean there aren't warnings within this ruling for Texas as it begins to slash funding for prison medical care. Indeed, given Texas' already low spending on prison healthcare and further cuts in the next budget, it's worth pointing out language from the decision confirming that "If a prison deprives prisoners of basic sustenance, including adequate medical care, the courts have a responsibility to remedy the resulting Eighth Amendment violation." The Texas Civil Rights Project has called inadequate medical healthcare "Texas' secret death penalty." Further, given that Texas' university providers are laying off healthcare workers, it's notable that a lack of sufficient medical staff contributed to the court's decision:

The evidence showed that there were high vacancy rates for medical and mental health staff, e.g., 20% for surgeons and 54.1% for psychiatrists; that these numbers understated the severity of the crisis because the State has not budgeted sufficient staff to meet demand; and that even if vacant positions could be filled, there would be insufficient space for the additional staff. Such a shortfall contributes to significant delays in treating mentally ill prisoners, who are housed in administrative segregation for extended periods while awaiting transfer to scarce mental health treatment beds. There are also backlogs of up to 700 prisoners waiting to see a doctor for physical care.

The shortage of medical staff is so severe in California that "Prisons were unable to retain sufficient numbers of competent medical staff ... and would 'hire any doctor who had ‘a license, a pulse and a pair of shoes.'” "At the time of trial," wrote Justice Anthony Kennedy, "vacancy rates for medical and mental health staff ranged as high as 20% for surgeons, 25% for physicians, 39% for nurse practitioners, and 54.1% for psychiatrists."

There are some in the free world who may not care if prisoners receive adequate healthcare, but there are consequences that spread outside the prison system, including the development of antibiotic resistant infections: According to a footnote, "One officer testified that antibiotic-resistant staph infections spread widely among the prison population and described prisoners 'bleeding, oozing with pus that is soaking through their clothes when they come in to get the wound covered and treated.'” Prisons are a common breeding ground for antibiotic resistant infections that eventually, inevitably spread to the outside world.

Inadequate mental healthcare was also a factor; again from Kennedy's opinion:

Other inmates awaiting care may be held for months in administrative segregation, where they endure harsh and isolated conditions and receive only limited mental health services. Wait times for mental health care range as high as 12 months. [citation omitted] In 2006, the suicide rate in California’s prisons was nearly 80% higher than the national average for prison populations; and a court-appointed Special Master found that 72.1% of suicides involved “some measure of inadequate assessment, treatment, or intervention, and were therefore most probably foreseeable and/or preventable.”

Remarkably, "Two prisoners committed suicide by hanging after being placed in cells that had been identified as requiring a simple fix to remove attachment points that could support a noose. The repair was not made because doing so would involve removing prisoners from the cells, and there was no place to put them."

Finally, based on findings of fact from the lower court, the majority discounted the argument that its order to reduce the prison population would automatically harm public safety:

The court found that various available methods of reducing overcrowding—good time credits and diverting low-risk offenders to community programs—would have little or no impact on public safety, and its order took account of such concerns by giving the State substantial flexibility to select among the means of reducing overcrowding. The State complains that the court approved the State’s population reduction plan without considering whether its specific measures would substantially threaten public safety. But the court left state officials the choice of how best to comply and was not required to second-guess their exercise of discretion. Developments during the pendency of this appeal, when the State has begun to reduce the prison population, support the conclusion that a reduction can be accomplished without an undue negative effect on public safety.

Indeed, Kennedy's opinion speculated from the record that reduced incarceration may even improve public safety:

Some evidence indicated that reducing overcrowding in California’s prisons could even improve public safety. Then-Governor Schwarzenegger, in his emergency proclamation on over-crowding, acknowledged that “‘overcrowding causes harm to people and property, leads to inmate unrest and misconduct, ... and increases recidivism as shown within this state and in others.’” ... The former warden of San Quentin and acting secretary of the California prison system testified that she “‘absolutely believe[s] that we make people worse, and that we are not meeting public safety by the way we treat people.’” ... And the head of Pennsylvania’s correctional system testified that measures to reduce prison population may “actually improve on public safety because they address the problems that brought people to jail.”

The dissents, filled with inflammatory language, read more like op eds than legal opinions - a testament to the extensive record developed by the lower courts. Even Scalia said, "Because these 'findings' have support in the record, it is difficult to reverse them under a plain-error standard of review." So instead of follow the law and apply that standard, he'd simply substitute his own policy preferences if given the chance. In this case, he wasn't, but in the future after this episode it will be difficult to take seriously complaints about activist judges from Justices Scalia and Thomas. To borrow from former California Governor Richard Nixon's famous comment about Keynesianism, apparently "we're all judicial activists now."

California contemplates big reductions in inmate numbers before SCOTUS

This morning I've been reading the oral arguments (pdf)  from Schwarzenegger v. Plata, the California prison overcrowding case heard yesterday by the US Supreme Court, and wanted to record a few passing thoughts.

First, the Los Angeles Times' coverage says the court appears prepared to affirm the lower courts order to reduce California's prison numbers, and counting noses based on their comments, that's my takeaway as well. Justices Breyer, Ginsburg, Kagan, Sotomayor, and Kennedy all sounded as though they were inclined to uphold the order, or at least substantial portions of it.

California's recidivism rate is off the charts - 70% systemwide compared to about 28% in Texas. (I've discussed those disparities before, e.g., here and here). However, argued the plaintiff, "The 70 percent figure ... doesn't always include crimes. It includes lots of technical parole violators. People who have missed their appointments, for example. So it's not as grave as some of the figures that are informed by the other side." Ranked by risk category, the lowest risk offenders collectively had a 17% chance of recidivism, he said.

Also interesting to me: Even in resisting the court order, the state of California is not arguing for the status quo: They're claiming they need five years to reduce the prison population by 36,000 to 45,000, while the federal courts have given them two. That factbite was captured in this exchange, which made me chuckle:

JUSTICE KAGAN: Does the State stand by its representation that it can do this without any public safety impact in 5 years?

MR. PHILLIPS: Yes. I mean, we made that submission to the court and we -- we believe that we could comply with it. That said -

JUSTICE KAGAN: That means it's true.

Indeed, said the plaintiff's attorney, recently "the governor proposed to the legislature that he reduce the prison population. He said it could be done safely by the same amount, roughly 37,000 prisoners in 2 years. So what the court found was basically what the governor had believed was safe." The Democratic-controlled legislature quashed Schwarzenegger's Reaganesque reform plans, but I find it fascinating that there's more or less a consensus among the parties involved that California's prisons should hold about 40K fewer total inmates than they do right now; the debate is over how to get there and how long it should take. Justice Sotomayor said perhaps the state should be given more time for construction projects, but that two years wasn't unreasonable for implementation of various, identified policy changes that could be enacted immediately.

Speaking of which, since I'm always looking at what other states are doing to reduce overincarceration pressures, I was interested to read the discussion of CA's new law increasing good-time credits for parole and reducing technical violations for probation and parole. (We have earned time in Texas but the parole board is regrettably free to disregard it, which they routinely do.)  Justice Breyer listed other alternatives being suggested: "the technical parole violators go elsewhere. The elderly and infirm prisoners, some of them be released. The good time credits for older people were ... increased, and also, halfway houses and other kinds of prison facilities which used to be called less -- less physically restrictive punishments, or ... building new prisons. ... that seems to be the gamut."

If all sides agree California could reduce its prison population by 37,000 in 2-5 years without harming public safety, I see no reason why Texas, with a prison system about the same size and much lower recidivism rates, couldn't do the same thing. Doing so would let the state close, conservatively, 12 to 20 of its 112 prison units over the same period, saving hundreds of millions of dollars per year. Can you imagine?

I've gotta say, as a Texan reading this transcript, the same thought kept recurring: Thank God for the late Judge William Wayne Justice or Texas would be in the same mess or worse. TDCJ has its problems, but Judge Justice insisted the state address its most gaping flaws three decades ago, at a time when the state incarcerated around 30K inmates instead of 155K. Our system has plenty of shortcomings, but it's not as big a mess as California's.

MORE: See additional discussion at California Correctional Crisis, Sentencing Law & Policy, Crime and Consequences, the Prison Law Blog, Simple Justice, and a good backgrounder from KALW News describing how the state got to this point.

Real conservatives aren't afraid of prison closures

Yesterday I'd rhetorically asked "What would Ronald Reagan do?" about high corrections costs, and in response Jake Horowitz of the Pew Charitable Trusts emailed to point out a related sidebar in this 2008 policy brief (pdf) which reads as follows:

The history of state-local corrections partnerships is often dated to California’s 1965 enactment of the Probation Subsidy Act, which provided counties up to $4,000 for each prison-eligible adult or juvenile offender who was supervised, sanctioned and serviced in the community. In combination with other reforms, the act led to several successes achieved under Governor Ronald Reagan.

Between 1969 and 1972, the state placed nearly all nonviolent property offenders under local supervision, cut its inmate population by 30 percent, closed eight prison facilities and drove recidivism (within two years of release) down from 40 percent to 25 percent. In his Second Inaugural Address, in 1971, Governor Reagan stated: “Our rehabilitation policies and improved parole system are attracting nationwide attention. Fewer parolees are being returned to prison than at any time in our history, and our prison population is lower than at any time since 1963.”

The is an issue that distinguishes between latter-day Big Government Conservatives and conservatives in the tradition of Reagan and Goldwater who actually believed in less government as opposed to merely giving the idea lip service. If Ronald Reagan, the archetypal modern conservative, could close 8 prisons in California 40 years ago when their system was much smaller, Texas should be able to close 8 of its 112 prison units in the current environment without harming public safety.

RELATED: "What would Ronald Reagan do about too-high prison costs?"

Prosecutors seldom disciplined for misconduct; can they be held liable in civil court?

Before heading out (a little late) this a.m. to the Texas Forensic Science Seminar at the capitol, I wanted to point readers to the transcript from oral arguments (pdf) at the US Supreme Court in a Louisiana case (Connick v. Thompson) which will determine whether prosecutors can be held liable in Sec. 1983 civil rights lawsuits for failing to turn over exculpatory evidence to the defense. This story from Law.com says the justices appear ready to allow the case to go forward. And here's an excellent soup to nuts account of the case from Slate written before oral arguments were held. (I may have more to say about this after I've had a chance to thoroughly read the transcript.)

Relatedly a new report (pdf) on prosecutorial misconduct from a group called the Veritas Initiative came out this week analyzing hundreds of cases where courts found prosecutorial misconduct. Out of 707 cases where courts found misconduct, only 6 prosecutors were disciplined by the state bar. Indeed, "67 of the 600 identified prosecutors in the 707 cases where misconduct was found committed misconduct more than once, three committed misconduct four times and two did so five times." See coverage of the report from the LA Times and another recent media report on prosecutorial misconduct from USA Today.

I was interested to read the CA researchers' time-consuming but systematic methodology, which would be replicable here in Texas if anyone with resources cared to do so. I would guarantee our state bar association's rate of disciplining prosecutors who engage in misconduct will be as low or lower than in California.

What would Ronald Reagan do about too-high prison costs?

Why he'd slash the incarceration rate by more than a third! At least that's what he did in California as Governor, according to this fascinating article out of the Golden State. Here's a notable excerpt:

Rosemary Gartner, a criminologist at the University of Toronto, was studying the history of California’s women’s prisons when she stumbled across an unexpected fact: between 1968 and 1972, the incarceration rate in California dropped by 34 percent. The prison population naturally fluctuates a lot and we’ve seen massive increases over the years (particularly through the ’70s, ’80s and ’90s), but big drops don’t happen very often–and a decline of this scale hasn’t been seen before or since that four-year period. What also surprised Gartner is that the decrease happened just after former President Ronald Reagan took office as governor of California. ...

How did Ronald Reagan, one of California’s most conservative and tough-on-crime governors, oversee the greatest decline in California’s prison population in history?

In a piece called “The past as prologue?,” Gartner joins with University of Toronto colleague Anthony Doob and UC-Berkeley Professor Franklin Zimmering to hash out exactly what happened during those four years. The academic paper is due out in Spring 2011, but Gartner gave us a preview.

In 1968, California’s prison population reached a (then) all-time high of 28,462. Four years later, it had dropped to 19,773. The decline, Gartner says, can be attributed to a number of policy changes. The first happened before Reagan took office–a program that gave incentives (like money) to local counties that reduced the number of people being sent to prison, largely by beefing up probation supervision and services. In addition, it seems parole violations became a bit more lax: parolees were not as easily sent back to prison for smaller violations, but were kept in the community. And finally, the researchers found, the Reagan-era parole board made it a policy to–unless there were strong reasons not to–parole people from prison as soon as they became eligible. But was Reagan directly responsible for the policies?

“He certainly celebrated the drop in the prison population,” Gartner says, and he took credit for it. In his 1971 inaugural address after being reelected as governor, Reagan lauded his success. “Our rehabilitation policies and improved parole system are attracting nationwide attention,” Reagan told the assembled crowd. “Fewer parolees are being returned to prison at any time in our history and our prison population is lower than at any time since 1963.”

More surprising than the drop itself is the man who brought it about, or at least encouraged it to happen. But Reagan seems to have, as governor, been more focused on the financial burdens of incarceration than the benefits to locking people up he embraced in his years as president.

MORE: From an interview with the Justice editor at KALW News in a blog post at the San Francisco Chronicle:

right around then, a few things were happening in the state. First of all, there were subsidies that were being given to counties to basically give them incentives to keep people from going to state prison. So a lot of that was going to the probation department, and saying, "If you can keep these people from offending, we'll give you money." That was actually a program that came about before Reagan, but he encouraged that to keep happening.

And there's also a decrease in the number of people going back to prison on parole violations during Reagan's time. And finally, he just flat-out started releasing people early. ...

I think one thing that helps this make sense is that Reagan was such an economically conservative guy. He just didn't want the government to be spending so much money on imprisoning people, and at the time he took office, it was the highest level of prison population that California had ever had before, and he didn't want that to be the case anymore. And so he ended up listening to his advisors, listening to the professionals in the prison department and getting 10,000 people cut from the prison population.

Education vs. Prisons

A construction I've seen quite frequently recently during budget debates at all levels of government has been how to relatively prioritize jails and prisons vs. schools. KLTV out of Tyler has a story titled "New jails vs. new schools an ongoing battle" (7/22), in which members of the commissioners court declared one reason they don't want to take jail bonds to voters is the likelihood that Tyler ISD will put additional bonds on the November ballot and voters would choose schools over a jail.

The, seemingly age-old Smith County battle could wage on again come election time: new schools versus new jail.

Battle lines are already being drawn... ...and early... ...from the bench...

"If TISD puts on a bond election at the same time, then I see the jail failing," said Precinct 4 Commissioner JoAnn Hampton.

"Those cute little rosy-cheeked kids, or a bunch of people in our jail house? I know who they're going to vote for and so do you," said Precinct 2 Commissioner Bill McGinnis.

"They're going to win every time," said voter, Charles Smart. "They have so far."

Smart says if the last $60,000,000 jail plan was not up against Tyler ISD's nearly $125,000,000 plan, it may have passed.

The idea of another ballot face-off is weighing heavy.

Meanwhile, Newsweek had a recent story focused on California and other states struggling to balance prison spending and higher education ("Classrooms or prison cells," June 28). According to Newsweek the issue is being raised by (among others) a prominent transplanted Texan:

It may seem odd that state funding for college kids often competes with money for prisoners, but if you track spending in California over the past 30 years, you’ll see evidence of a long-standing tug of war between these two very different constituencies. Over much of the past decade, funding for corrections has gone steadily up, while spending on state colleges has tumbled. “The state seems to be saying we have more of a future in prisons than in universities,” University of California president Mark Yudof said in a recent speech.

Newsweek included this extraordinary graphic outlining the near-explicit tradeoff in California:

It would be quite a chore to compile the data, but given the expansion of Texas prisons in the past 30 years, plus the fact that Texas universities have become so much more tuition-reliant, I would be surprised if a comparable chart for Texas failed to display essentially similar trends.

Education, particularly higher ed, is an economic investment in human capital, while prisons remove workers and money from the economy and reduce overall consumption and production. So the question arises, when money is tight, where should the state prioritize its spending? Mass incarceration is a rich nation's game. When money is scarce and the tradeoff becomes explicit, investing in education over prisons makes a lot more sense.