New Juvenile Justice committee in Texas House; other rules changes

Grits finally had a moment to go through this session's rules for the Texas House of Representatives, as approved in HR 4. (Read them here for yourself.) Here are some changes which may interest Grits readers:

Juvenile justice was taken out of the Corrections Committee's domain and given its own committee: Juvenile Justice and Family Matters, which will have seven members. (Chairs and members haven't been named yet.) As a practical matter this was probably a good move: The Corrections Committee has a big enough task with oversight of the adult system to delve into juvenile stuff in depth during the brief 140 day session. But there may also be a political angle to the division given that Sen. John Whitmire and Tony Fabelo are openly talking about shuttering more youth prisons. The appointment of the chairman may tell a lot about whether the Speaker agrees with Whitmire regarding further downsizing at the Texas Juvenile Justice Department.

The House Criminal Jurisprudence Committee will have seven instead of nine members. I liked it with nine. C'est la vie.

Bill analyses must henceforth include "a statement indicating whether or not the bill or resolution expressly creates a criminal offense, expressly increases the punishment for an existing criminal offense or category of offenses, or expressly changes the eligibility of a person for community supervision, parole, or mandatory supervision."

Bills that create new crimes, increase penalties, change probation or parole eligibility must now say so in the bill caption. IMO they should have gone further by requiring those bills to have a fiscal note, meaning they'd have to be accounted for in the budget. In the past, the Legislative Budget Board insisted nearly all bills increasing penalties or creating new crimes would have no significant fiscal impact on the state, though the cumulative impact off passing dozens of new crimes and "enhancements" each session has been enormous.

This will be helpful: The Parliamentarian must now give written explanations for rulings on points of order, including cites to precedent. The whys and wherefores of point of order denials have long been a mystery - maybe this will promote more consistency.

It's regrettable that this change was necessary: "The committee coordinator may exclude from the committee coordinator's office or refuse to interact with a member or a member's staff if the member or member's staff engages in abusive, harassing, or threatening behavior." Wouldn't you love to learn the backstory behind that new rule?

The General Investigative and Ethics Committee was given additional authority including the power to propose articles of impeachment and to investigate misconduct by political appointees at agencies. Given what's happened recently at the Department of State Health Services and the Legislature's run ins with UT regent Wallace Hall, this could be a highly significant development.

The Technology Committee was eliminated and science and tech issues were handed to the renamed Government Transparency and Operation Committee. The language describing their turf is theoretically broad enough to include forensic science but DPS crime labs and the Forensic Science Commission remain under the jurisdiction of the Homeland Security and Public Safety Committee, whose jurisdiction didn't change.

The rules further limited access to media credentials and created a method for legislators who want to challenge a reporter's credentials if they engaged in lobbying or advocacy on the floor. I've never heard of that being an issue, so unless there was some episode last session of which I'm unaware, this seems like a solution looking for a problem. UPDATE: A reader reminds me the media credential issue was in response to Michael Quinn Sullivan, FWIW.

Michael Morton Act costs, and the costs of failing to disclose exculpatory evidence

Travis County officials are grumbling at the costs of implementing the Michael Morton Act. Reported the Austin Statesman (Dec. 23):

The Michael Morton Act, named for a Williamson County man who spent 25 years behind bars for the murder of his wife before DNA evidence proved his innocence, requires prosecutors to produce all potentially exculpatory evidence before trial and to inventory and make copies of all evidence. It went into effect Jan. 1.

In June, Lehmberg and Escamilla requested 17 new staffers to deal with the act, and the commissioners approved eight. But the backlog of cases that hadn’t been approved for compliance with the act continued to grow — it was 5,172 in mid-December — and the prosecutors’ offices a week ago asked for 12 more employees.

Biscoe said Tuesday he was “not happy” that the Legislature indicated that the act would have a minimal impact on county budgets.

“That’s just not the case,” he said. “The fiscal note (for the law) was faulty.”

Five of the six largest counties have added staff because of the act. Travis County has added the most.

On the flip side, in Houston we find an example of the costs of prosecutors failing to turn over everything in their files to the defense. Former Harris County DA candidate and Cold Justice reality TV star Kelly Siegler found herself on the dock defending her decisions about what evidence to give to defendant David Temple's counsel in a high-profile murder case. Reported the Houston Chronicle (Dec. 22):

Attorneys for Temple, including his lawyer at trial Dick DeGuerin, have long said Belinda Temple was killed by teenage neighbors who were interrupted during an after-school burglary. In motions filed after the case was re-opened, Deguerin and other lawyers have accused Siegler of withholding information about the teenaged neighbors.

During contentious questioning by attorney Casie Gotro, Siegler said she turned over evidence about several shotguns recovered in 2009, the teenage neighbor and his friends along with other information she decided was relevant.

However, she said determining whether evidence was Brady information often fell into a "gray area." She said she did not turn over evidence of every "rabbit trail" and "kooky lead."

One of those "kooky leads" was a neighbor's wife who called police to tell them her husband had killed Belinda Temple. Siegler said detectives investigated the story and decided it was not true and that she did not turn it over to the defense.

"When the defense is to just throw mud at the wall and see what sticks," Siegler said. "Brady is an impossible burden."

The former prosecutor also found herself hamstrung by the lack of detailed notes in her files about when she turned over the evidence or told DeGuerin.

"I don't remember," was a constant refrain during more than five hours of questions, which are expected to continue Tuesday.

The legal issues in the case include the claim that Temple's due process rights were violated by prosecutors withholding Brady information, an ineffective assistance of counsel claim against DeGuerin and that Temple is "actually innocent."

After hearing from more than a dozen expected witnesses including Siegler about the investigation and the prosecution, Gist will issue findings of fact and conclusions of law to be reviewed by Texas' highest court. That court would decide if Temple gets a new trial.

Clearly, had the Michael Morton Act been in place at the time of Temple's trial, this situation could have been avoided. Even if Temple is guilty, the expense and difficulty of retrying him should not be underestimated. But what if Temple is innocent and the alternative suspects really did it? Then, the tangible and intangible costs grow much higher. Siegler was operating under different rules when she prosecuted Temple and Judge Gist will decide whether she followed them. But the whole situation exemplifies the sort of problems the Michael Morton Act was intended to solve. Counties understandably grumble about another unfunded mandate, but opening up prosecutor files also prevents future costs by reducing errors and appeals. And it makes the adversarial system more robust and less one-sided. That's worth something, too, even if it doesn't show up on the accounting ledger.

BTW,  does anyone else find it odd that these prosecutor offices, which for years insisted Texas didn't need an open-file law because they already all had open-file policies, all of a sudden need extra staff to comply with a law they said was redundant with what they were already doing? Perhaps some of those titular open-file policies we were told about prior to the act's passage weren't quite as open as was portrayed.

Pricetag for DPS, Texas National Guard border adventure approaching one billion dollars

So, lame ducks Rick Perry and David Dewhurst plan to commit the state to spending $86 million to continue the much ballyhooed border surge until August. Reported the Texas Tribune, "Gov. Rick Perry announced Tuesday that he, House Speaker Joe Straus and Lt. Gov. David Dewhurst had reached an agreement that will cost about $86 million. If approved by the Legislative Budget Board, that spending will not need a green light from incoming lawmakers, who are set to gavel in in January."

And how to pay for it? "Perry said in the statement that the funding will include $13.7 million from the state’s disaster funds, $47.9 from the Texas Department of Transportation's general revenue bond fund, $7 million from the state's Emerging Technology Fund and $17.5 million from the Texas Public Finance Authority."

This proposed commitment of revenue outside the Appropriations bill by the Legislative Budget Board demonstrates exactly what's wrong with spending so much money on redundant and unnecessary border security measures in the first place: It's cost so much the money must be diverted from other necessary government functions, in this case spending on disaster response, roads, emerging technology, and state-owned facilities.

There's been much talk of a constitutional amendment to limit state spending but little talk of what should be cut. Grits fails to see a single state priority in the budget that's outweighed by the massive, on and off-budget ballooning of frankly frivolous border security spending in recent years. How much are we talking about? Lt. Gov. David Dewhurst told the Tribune that:

“The reason to continue the border surge through the end of the fiscal year, which is Aug. 31, is because some of the newly elected officials may not be focusing on the fact that it's undoubtedly impossible to get a two-thirds vote in both chambers to continue it,” he said. “And once you don't get a two-thirds vote for immediate effect, the surge will stop, we'll have business as usual for the cartels and the $850 to $900 million that we just spent will be all for nothing.”

What could have been done with an extra $850 to $900 million over the last few years? If you spent every dime of it on transportation upgrades it wouldn't be enough, but it'd fill a lot of potholes. Ditto on school finance, health care, universities, or a half-dozen other investments one could name.

In the criminal-justice realm, that's more than enough to have simply eliminated the Driver Responsibility surcharge and funded hospital trauma centers out of the general fund. Or it could have provided more treatment and diversion programming to support local probation departments and helped the state close more prisons. If it'd been spent on some combination of diversion programming and improved guard pay, maybe TDCJ wouldn't face the understaffing crisis that presently besets it.

The border surge was for the most part a policy decision made outside the legislative process by a handful of state officials who are now exiting public service. It was approved after the fact as a fait accompli, though never really interrogated on its own merits as a budget priority before now. Clearly Dewhurst doesn't think there's sufficient support for a two-thirds vote (an assessment which frankly surprises me), so they want to lock in the spending specifically because they don't think it has sufficient political support in the Legislature. Fascinating.

The Austin Statesman added that the agreement between Perry, Straus and Dewhurst was subject to approval at a Legislative Budget Board meeting Dec. 1st, but if past is prologue, that's probably a rubber-stamp formality. It's truly remarkable how much money Texas has spent on this misbegotten border adventure with so vanishingly little to show for it.

UPDATE: The Austin Statesman followed up with a report that the National Guard deployment will only last through the end of March, pointing out that the initial statement on Tuesday "left the impression that the Texas National Guard, deployed by Perry in July, would continue to be an integral part of the enhanced border enforcement effort through the end of the fiscal year" in August. According to the Houston Chronicle, Dewhurst yesterday acknowledged the Guard will "wind down" its presence while the DPS "surge" will continue through August, if the LBB approves the agreement.

So Straus cut a slightly tougher deal with his lame duck counterparts than had been initially reported, though the overall total spent on misguided border security still speaks to off-kilter priorities when one considers the opportunity costs regarding what could have been accomplished with such large amounts of money.

LBB: Texas prisons won't fill up as quickly as thought

The Texas Legislative Budget Board's new adult and juvenile prison population projections (pdf) are out and the good news is the bad news has been retracted.

Altering its earlier estimate that Texas' prisons would run short of capacity by the end of the decade, the Legislative Budget Board now says that "adult state incarcerated populations are projected to remain stable throughout fiscal years 2014 to 2019 and to remain, on average, 0.6 percent below TDCJ’s internal operating capacity."

Wading through the bureaucratese, this is remarkable news: Despite Texas' rapid population growth in recent years, both adult and (especially) juvenile arrest totals have been declining, LBB noted. Indeed, adult arrests declined in all categories except drug offenses, which increased over the period depicted (p.5). Going forward, "The slight projected increase in the [prison] population is primarily driven by a projected 1.1 percent increase in admissions and a slight slowing of parole and discretionary mandatory supervision (DMS) case considerations and approvals."

So, if the state enacts policies that cause admissions to decline, or for that matter if parole rates remain stable, Texas could have more excess capacity going forward, even, than these cautious LBB projections would have it. Implementing just a handful of de-incarceration polices would let the state shut down even more prison units and shift resources toward prison healthcare and treatment programming.

LBB brief: 'Adult parole in Texas'

The Legislative Budget Board today published a two-page issue brief titled "Adult Parole in Texas" (pdf) - a pretty general overview that is perhaps most useful to those already familiar with the system for the list of budget line items affecting parole in the current biennium at the end of page two.

Juvenile crime, incarceration down; extra capacity at TDCJ?

Mistakenly thinking the Legislative Budget Board had finally released its much-anticipated long-term prison population projections, I clicked on this link on their site only to find myself staring at a routine Monthly Tracking Report for the Texas Department of Criminal Justice (TDCJ) and the Juvenile Justice Department (TJJD). Ho hum. Glancing quickly through it, I did see a couple of interesting items I didn't know.

Extra capacity at TDCJ?
From the bottom of page 1:

• As of May 2014, the agency had 1,473 beds temporarily removed from capacity due to staffing shortages.
• Also in May, 849 Substance Abuse Felony Punishment (SAFP) beds were temporarily converted into Intermediate Sanctions Facilty (ISF) beds. 

The report doesn't say which units shut down capacity because of understaffing, but 1,473 is a significant number. That makes me think the agency has yet more capacity it could shed, perhaps starting with units that can't keep their staffing up. TDCJ's monthly population reduced slowly over the last year, from 150,931 to 150,461, so basically flat.

That's where the long-term projections I was looking for come in. Sometime in June, LBB is scheduled to come out with an important set of official prison population projections on which legislative appropriators must base their various funding schemes. At a recent House Appropriations Committee hearing, LBB staff implied that the new projections would not show long-term growth in prison populations to the same extent as their last projection, which is now 15 months old. But we won't know for sure until the document is released.

If the downward trend continues, the Lege should cut more prison capacity and use the savings for treatment, rehabilitation and reentry programs.

Juvenile crime plummeted after Texas de-incarcerated youth prisons
Another fascinating tidbit from the tracking report: Despite having reduced the population of Texas youth prisons by nearly 80 percent after the 2007 sex-assault scandals and closed most of them, the average daily population of juveniles on probation statewide declined by 30 percent in Texas over the last five years, from 35,645 in 2008 to 24,896 in 2013. Referrals to probation fell over the same period, from 97,584 in 2009 to 68,386 in 2013, according to the report. And in schools, the number of Mandatory Attendance Days at Juvenile Justice Alternative Education Programs (JJAEPs) also went down, from 110,189 in the '08-09 school year to 73,227 in 2012-13. And that's despite the Legislature mandating that school police write fewer Class C tickets to students who misbehave.

Since juvenile incarceration fell almost 80% from its height after the Legislature first reformed, then disbanded, the Texas Youth Commission, what caused juvenile referrals (read: new offenses) to decline so rapidly in the years that followed? Many people associate incarceration with crime reduction, assuming prison keeps us safe from predators who would harm us if they were out. So how does the tuff-on-crime crowd explain such a radical reduction in juvenile incarceration corresponding to a 30-percent drop in juvenile crime over the last several years period?

Grits finds the rapid but inexplicable drop in juvenile crime one of the most remarkable, yet little-remarked stories in Texas criminal justice. A tremendous achievement. Too bad nobody knows what caused it nor how if at all it related to government policies, so it can't be readily replicated.

I got your Big Government right here: Growth in TX convictions unhinged from crime levels

One purpose of this blog is to hone arguments in a more informal arena - using readers as a sort of raucous, unmannerly focus group to vet and refine them - before they're presented in more formal settings such as legislative hearings, public policy reports, and the like. So I was pleased when a combative commenter came forward in a recent post to criticize how I'd portrayed crime rates, which Grits said were declining. While that's true, Texas population increased about 20% over the last decade, meaning that even though crime rates per 100,000 dropped 25%, overall numbers of reported crime either remained steady or dropped only slightly throughout the decade. Here's how my intrepid critic suggested we should think about index crimes in Texas since the turn of the century, expressed as a fraction of the 2001 reported index-crime total:

2001 - 1.00
2002 - 1.03
2003 - 1.04
2004 - 1.03
2005 - 1.01
2006 - 0.98
2007 - 1.01
2008 - 1.00
2009 - 1.02
2010 - 0.97
2011 - 0.91

His point was that, rather than crime declining, with Texas' growing population, the actual total number of reported index crimes remained mostly steady, dropping significantly only recently. Fair enough. And a clever way to present the data. I agree with my anonymous critic it allows for a better apples-to-apples comparison to the other data discussed. So now let's compare reported crime figures to a similar ratio calculating the total number of felony convictions and deferred adjudication verdicts secured by Texas prosecutors over the same period:

2001: 1.00
2002: 1.05
2003: 1.18
2004: 1.20
2005: 1.28
2006: 1.30
2007: 1.42
2008: 1.37
2009: 1.38
2010: 1.36
2011: 1.42

To me, that says that Texas prosecutors no longer need more crime to secure more convictions, for reasons Glenn Reynolds has articulated. Prosecution is a growth industry. Here are the two ratios displayed together graphically, along with a similar metric for growth in arrests:

Convictions, Arrests and Reported Index Crime as a Fraction of 2001 levels, through 2011

Don't like Big Government? There's your Big Government. Find the underlying data, from various sources, in this chart.

See how increases in felony convictions and deferred adjudications have become disconnected from the amount of reported crime or even the number of arrests, rising at far higher rates? If the Legislature wants to close more prison units they must reduce upward pressure on prison admissions over the long term, and this chart shows where that pressure is coming from. The state could chop that top ratio down to size quickly by adjusting drug possession offenses down one notch and/or indexing property crime category thresholds to inflation, but will the Legislature, particularly brand spanking new Criminal Jurisprudence and Corrections Committees in the House with rookie chairmen, be willing to take such bold steps with no (public) plan on the table and little or no time to prepare? That remains to be seen. Like Fox Mulder, I want to believe.

Related:

• Ham Sandwich Nation: Prosecution in Texas is a growth industry
• Direct sentences to prison up despite declining Texas crime

Ham Sandwich Nation: Prosecution in Texas is a growth industry

Crime is at the lowest rate in two generations but Texas can't stop sending more people to prison

A report (pdf) issued this week by the Texas Legislative Budget Board predicted that Texas' prison population will increase over the next several years if policy reforms aren't enacted to reduce incarceration rates. "The correctional institutions population is expected to increase moderately, 3.2 percent over the projection period, from fiscal years 2013 to 2018. This increase is due primarily to increasing admissions to correctional institutions," said LBB. This growth is actually less than the projections from several years ago, thanks to legislative reforms to the state's probation and parole systems, but there's clearly more to be done.

Which felons go to prison, which ones get probation and who is even charged are all local decisions. According to the Office of Court Administration, felony convictions in Texas courts increased by 17.9% in the last ten years, from 92,838 convictions in FY 2002 to 109,487 convictions in FY 2012. Those upward trends jibe neither with declining reported crime (index-crime rates per 100,000 inhabitants down 25% from 2002-2011) nor the public's perception in crime victimization surveys. Instead, Texas DAs are prosecuting ever-more felons despite a reduced pool of criminals. Prosecution in Texas is a growth industry. Welcome to Ham Sandwich Nation.

The Legislature can't control elected DAs and judges, but it does have both direct and indirect means to set the parameters of local decisions. Indirectly, as was done in 2007, the state can provide mostly financial incentives to counties to supervise more offenders on probation instead of sentencing them to TDCJ. The Texas Public Policy Foundation has bandied about suggestions of sharing "savings" with counties for felons supervised on probation instead of being sent to prison. But as long as prosecutors' discretion looms so large, the quickest way to halt increased admissions is to alter punishment levels, which have historically operated on a one-way upward ratchet. The most direct approach would be to ratchet down drug possession penalties one notch and/or index property crime thresholds to inflation, measures that would actually reduce admissions by bringing punishment ranges in line with the relative seriousness of the offenses. It's not impossible, but the status quo is unsustainable.

The Legislature hopes to close two or more prison units this session to cut costs, but unless they find a way to curb front-end increases in the number of felony convictions, they'll need to shop for more bed space just a few years down the line. The LBB report gives them a schedule to meet: The time for dabbling is past.

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.

Ranking Texas on Criminal Justice

The Legislative Budget Board has published its 2012 "Texas Fact Book" (pdf) and here are the first four items on the state's criminal justice rankings, plus a surprising stat about per-capita cost:

• 2009 Adults on State Probation:    426,331, 1st
• 2009 Adults on State Parole:     104,943, 2nd
• 2009 State Prisoners: 171,249, 2nd (ed. note: now 1st) 
• 2009 Crime Rate Per 100,000 Population:   4,506.4, 2nd
• 2008 Per Capita State and Local Expenditures for Corrections:   $214, 23rd

That sums it up: The state excels at keeping far more of its citizens under supervision of the criminal justice system than its peers, with an efficiency and low per-prisoner cost at which other states can only marvel. But all we have to show for it is the nation's second highest per-capita crime rate. They're getting better outcomes with smaller systems focusing more resources per offender. See pp. 17-18 of the report (pdf) for more Texas criminal justice rankings.

Governor's budget compact should start by rolling back corrections spending

A central proposal from Gov. Rick Perry's suggested "budget compact" indicates he would "Support a Constitutional limit of spending to the growth of population and inflation" and "Practice truth in budgeting."

The latter pledge strikes me as flat-out surreal after the Governor last session signed a budget that underfunded state commitments on healthcare and highway spending while sweeping money from "dedicated" accounts like the Crime Victim Compensation Fund into the state's general revenue account.

As for limiting spending growth to combined population and inflation increases, if Texas had followed that policy over the last three decades, the state corrections budget would be just more than a quarter of what it is today (see "TDCJ budget grew 274% more than inflation, population growth since early '80s").

Of course, what drove that massive increase were expanded penalties the Lege didn't pay for - nearly every sentencing "enhancement" receives a fiscal note claiming the budget impact will be inconsequential. The Legislative Budget Board pretends new criminal penalties will be cost free unless they affect more than 100 cases per year, but dozens of "enhancement" bills pass every session that collectively cost the state millions, and even larger penalty hikes are typically underestimated.

At a minimum, if we're going to limit budget growth to inflation plus population, then inflation should be taken into account in the property crime thresholds, which haven't increased since 1993. Theft in Texas reaches state jail felony levels at the $1,500 mark, but adjusting for inflation, stealing $1,500 in 2012 is the same as stealing $941 in 1993, when the theft categories were established. Because the Lege has been reluctant to increase those thresholds, essentially penalty enhancements for theft have been put on autopilot. In other words, thanks to inflation, every year it becomes a felony to steal less and less stuff.

Also, because charging and sentencing discretion is left mostly to the counties, there's little the state can do to stop ever more people from being sentenced. E.g., the presumptive next Harris County District Attorney has said he'll reinstate a policy to charge people caught with a crack pipe with felony possession based on trace amounts of the drug scraped from the apparatus. The Lege could limit the budget impact by notching down penalty categories by one level so that counties would foot the bill for such decisions, but unless they do, given Harris County's size, they can't viably plan to reduce costs from expanded drug-war incarceration.

Recent legislative reforms affecting probation and parole were a welcome first step, but they only scratch the surface of the massive expansion of Texas corrections spending witnessed in recent decades. Today, Texas incarcerates more people than California, which has a half-again larger population than we do and lower crime rates. It's fine for the Governor to say spending should be limited to population and inflation growth, but actions speak louder than words.

RELATED: "Six Impossible Things': Do you believe in a conservative, rational and smaller corrections budget?"

LBB to explain recidivism report

Interested in how recidivism rates are calculated in Texas? This event in Austin later this week by the Legislative Budget Board may interest some of the wonks among you.

Our second spring Criminal Justice Forum is this Friday,  March 9th  at 1:30 P.M.  The attached flier has all the details.  These forums are open and appropriate for anyone interested in learning more about criminal justice issues in Texas.  Please forward this e-mail and flier to all whom you think would be interested.

 

If you have any specific questions on the subject of Adult Correctional Recidivism, please feel free to submit them to me in advance.  This is a suggestion from our previous forum feedback forms.  We plan to give it a try this time.  Below is a link to our report I will be presenting from and my e-mail address.  Also, there will be time during and after the forum to address your questions as well.\ 

Adult Correctional Recidivism – March 9, 2012* (1:30 p.m. – 3:00 p.m.)
Presenter: Michele Connolly
LBB analysis of adult correctional recidivism includes recidivism and revocation rates for various correctional populations. Recidivism is measured through both rearrest and reincarceration rates. This forum will explore the methodology, techniques, and historical trends associated with adult correctional recidivism in Texas.  http://www.lbb.state.tx.us/PubSafety_CrimJustice/3_Reports/Recidivism_Report_2011.pdf

Legislative recommendations from LBB criminal-justice focus group, practitioner interviews

Scanning the Legislative Budget Board's new Adult and Juvenile Correctional Population Projections (pdf), in the "qualitative analysis" section, for which they queried more than 100 people in "Focus groups and interviews with criminal justice practitioners, juvenile justice practitioners, and adult offenders," I ran across these interesting summaries about what these insiders told LBB they think could/should be done to improve the justice system:

REGARDING CRIMINAL JUSTICE IN TEXAS, WHAT SHOULD BE THE EIGHTY-SECOND LEGISLATURE’S MOST IMPORTANT PRIORITIES?

Focus group and interview participants most consistently mentioned the need for investment in mental health resources of all types. Expanded inpatient and outpatient treatment, additional funding for specialized community supervision caseloads, increased reimbursement rates for mental health professionals, and additional state hospital capacity for competency restoration were all mentioned as important needs. Practitioners also agreed statutes and policies regarding DWI punishments need revision. Currently, DWI offenders have little incentive to obtain treatment through community supervision; offenders increasingly prefer short terms of incarceration in county jail. Possible solutions mentioned for this issue included offering deferred adjudication and potential early termination from community supervision for DWI offenders. Participants also voiced support for ending or reforming the Driver Responsibility Program (DRP), which provides significant financial burden on DWI (and other) offenders with seemingly little to no public safety enhancement. Other legislative recommendations included providing Community Supervision and Corrections Departments (CSCDs) additional flexibility in the use of state funding and providing offenders more incentives to choose community supervision over incarceration.  (emphasis added)

Equally important, questioning offenders:

WHAT CAN THE STATE OF TEXAS DO TO IMPROVE CRIMINAL JUSTICE AND KEEP OFFENDERS IN THE COMMUNITY AND OUT OF PRISON OR STATE JAIL?

Offenders most consistently mentioned three factors that would improve criminal justice and keep offenders in the community: employment opportunities and assistance, expanded access to substance abuse treatment, and additional educational opportunities. Offenders indicated employment opportunities and assistance as the most important need of these three responses.

Relatedly:

WHAT RESOURCES ARE NEEDED TO KEEP OFFENDERS IN THE COMMUNITY AND OUT OF PRISON OR STATE JAIL?

According to focus group and interview participants, mental health treatment options are the most needed resources to rehabilitate offenders in the community. Specifically mentioned resources included additional residential treatment, additional outpatient treatment, and increased reimbursement rates for mental health treatment providers. Along with mental health resources, practitioners indicated offenders need additional incentives to choose and/or remain on community supervision in lieu of incarceration. Participants also mentioned the need for additional resources specifically directed to meet the needs of female offenders.

LBB forum on TX juvie corrections populations

Regrettably I missed the last LBB presentation on their uniform cost report, but there's another one this week related to juvenile justice, which may interest those of you here in the capital who're able to attend. The notice reads:

Juvenile Correctional Population Projections

December 2, 2011 (1:30pm – 3:00pm)
Presenter: Jamie Gardner

To determine appropriate funding levels and appropriate policies regarding correctional populations, accurate population projections are vital. Correctional population projections also provide a road map of indicators that influence population growth or reduction. This forum will explore the methodology, techniques, and software used to develop projections for various juvenile justice correctional populations.

See the related LBB document projecting adult and juvenile corrections populations here (pdf).

LBB believes the precipitous drop in youth prison populations has bottomed out and will remain at current, historic low levels for the foreseeable future. Juvenile arrests continue to drop, but LBB does not expect juvenile probation populations to drop much further.

The event is at the Robert E. Johnson Conference Center in Austin. "Capitol visitor parking is available on the corner of 12th Street and San Jacinto Street. ... For questions you may contact us at cjforum@lbb.state.tx.us or call Michele Connolly or Ed Sinclair at 512-463-1200. Copies of the reports we will be presenting from can be found on our website here."

LBB criminal justice data team to host policy forums

Grits neglected to post a recent notice (pdf) from the Texas Legislative Budget Board's criminal justice data team about a series of upcoming forums about criminal justice data, law and policy, but TCJC's email alert today reminds me that the first one is coming right up:

Don't miss out on Criminal Justice Forums, held the first Friday of each month, beginning on October 7th. The forums will be hosted by the Criminal Justice Data Analysis Team of the Legislative Budget Board, and they will present various reports on criminal and juvenile justice issues.

Location:   Robert E. Johnson Conference Center

                 1501 N. Congress

                 Austin, TX 78701

Time:         1:30-3:00 PM

Price:         Free

Questions: Contact cjforum@lbb.state.tx.us 

  Or call Michele Connolly or Ed Sinclair at (512) 463-1200

Below are the first 2 (of 7) events. We will inform you about future forums in our upcoming e-alerts.

(1)  Overview of the LBB and Texas At-Risk Youth Services Project - October 7th

Presenters: Michele Connolly, Ed Sinclair

An overview of the Legislative Budget Board and the Criminal Justice Data Analysis team will be provided at the beginning of the first Criminal Justice Forum. Additionally, a brief overview of the Criminal Justice Forum's format will be discussed.

The Texas At-Risk Youth Services Project (ARYSP) is a research project aimed at improving service delivery to youth at-risk of juvenile delinquency in Texas. The ARYSP employed a hybrid quantitative/qualitative research method to better understand the delivery of services to at-risk youth in Texas and provide legislative recommendations to the 82nd Texas Legislature (2011). This forum will explore the background of the ARYSP, its findings, related legislative outcomes, and the next phase of the project.

Click here to read the report on ARYSP.

(2)  Uniform Cost Report - November 4th

Presenter: Laurie Molina

The Uniform Cost Report is an ongoing publication detailing cost-per-day figures for adult and juvenile correctional populations. This forum will provide audiences with insight regarding the many factors involved in determining cost figures for various populations. The forum will also explore methodologies, findings, and historical trends.

Click here to read the Uniform Cost Report.

See this flier (pdf) from LBB for more information about these and other planned criminal justice forums in the future.

'State budget crises push sentencing reforms': Time for truth in sentencing budgets

From AP, a story with same title as this post says states around the country are struggling with incarceration costs after "The total cost of incarcerating state inmates swelled from $12 billion in 1988 to more than $50 billion by 2008." Notably, "Newly elected Republican governors in Florida and Georgia are among those pushing sentencing reforms." Reporter Greg Bluestein writes that:

Fall election gains put Republicans in control of 25 state legislatures and 29 governor's offices, and many have pledged not to raise taxes even as they face budget shortfalls. Reforming laws to send fewer low-level offenders to state prison or reduce their sentences is a more politically palatable way to save money than cutting spending for schools or health care programs.

"Conservatives are about limited government, lower taxes and personal responsibility. And the reforms that we advocate advance those principles," said Marc Levin of the Center for Effective Justice at the Texas Public Policy Foundation. "We're not saying conservatives were wrong 30 years ago. But the pendulum swung too far."

The proposals vary by state, but the hallmarks include ways to reduce sentences for lower-level offenders, direct some offenders to alternative sentencing programs, give judges more sentencing discretion and smooth the transition for released prisoners. In many states, the Republican measures parallel Democratic efforts that stalled long ago.

The push to reform sentencing laws has forged uneasy alliances between law-and-order politicians and activists who have long argued that many laws went too far.

As you might expect,"Backers of the state measures almost always refer to Texas, which began implementing sentencing changes six years ago." But it's pretty clear that, without further policy reforms, the effect of those 2007 reforms have pretty much played out and incarceration will increase if more resources aren't funneled to diversion programs.

Having done a lot of work on front-end diversions in 2005 and 2007, some of the biggest cost-saving corrections bills considered in Texas this legislative session concentrate on the parole side. Either way: Diverting prisoners on the front end or the back end saves money.

Over at the prosecutors' association, these efforts have been greeted with snide rhetoric about "new math," joking that in one case, "1/4 of 90 = 22.5 = 7," meaning that, with good-time credit, a nonviolent defendant sentenced to 90 years is eligible for parole in 7. In response, TDCAA lobbyist Shannon Edmonds told prosecutors that: "I just attended a legislative symposium at which a coalition of liberal (hug-a-thug) and conservative (save-a-buck) groups advocated restoring the old mandatory supervision laws, which would allow guys like Mr. 90 Years to be entitled to early release after a few years." (That's not a precisely accurate characterization of the proposed legislation, but let's set that aside for the moment.)

Critics of this "new math" (which is really longstanding math) usually tell us they prefer "Truth in Sentencing," meaning that offenders should do every day, or close to it, of even the longest sentences assigned for nonviolent offenses. But seldom if ever do such critics ask the bigger question: Why is there no "truth in sentencing"? The answer isn't the overarching power of liberals on Rick Perry's parole board, it's that reality and money ultimately trump ideology and for many years Texas has never had truth in sentencing budgets. Whenever the state increases criminal penalties, no matter how many new people would be incarcerated, the Legislative Budget Board fails to require them to account for the extra cost in the budget. So every session the Lege votes for "tuffer" laws they never pay for, then wonder why the budget is bloated and the prisons are full.

Over time, dozens such bills pass each session (the Legislature in 2009 created or "enhanced" 59 felonies, according to the parole board's official count), creating an inexorable, one-way ratchet. Meanwhile, years-old theft thresholds apply to ever-smaller baskets of goods and antiquated drug laws focus on incarceration instead of treatment and/or diversion for small-time users, which is where law enforcement focuses arrests when they can't figure out how to catch the Big Fish.

Legislators pass such "enhancements" and prosecutors sometimes seek ridiculously long sentences for petty crimes to "send a message," we're routinely told. But that's revealing terminology: It's really just for show - a form of demagoguery aimed more at public relations than public safety. In reality, the state cannot afford to incarcerate someone for 90 years for burglary or possession of a few grams of meth, even if statutes have been "enhanced" to routinely allow such sentences.

That's why, as a practical matter, the parole board must act as a release valve to mitigate politicized local sentencing decisions. Otherwise, there won't be enough room to incarcerate more serious, dangerous offenders. If the Lege were required to pay as they go, increasing TDCJ's budget at the margins whenever they pass laws sending more prisoners there, Texas could afford to have everyone serve their full sentence. But the politics of mass incarceration, until now, have encouraged pols in both parties to pretend prison is both free and a universal, one-size fits all solution to every social problem. That's not sustainable any more.

Texas releases some 72,000 people annually from prison, only about half of them having served their full sentence - that's a population larger than the city of Harlingen. So complaints that measures currently under consideration might create a "revolving door" ignore the reality that we've already got one, with no money available to pay for longer incarceration stints: The question now for Texas is not whether to prioritize who to incarcerate, but how. And as this AP coverage shows, we're not the only state facing that quandary.

Lies, damn lies and LBB fiscal notes: Why it's really not free to make K2 possession a felony

Marc Levin from the Texas Pulbic Policy Foundation emails to alert me to another absurdist budgetary claim on criminal penalty enhancements from the Legislative Budget Board: A "zero Fiscal Note for legislation making K2 possession a felony!" (K2 is a form of currently legal, synthetically produced marijuana.) Suggested Marc, "You might want to explore on Grits how this legislation could have a zero fiscal note given that it makes possessing even the smallest amount of K2 a felony. I guess they assume if it is outlawed, no one will use it. But that has not been the case with other drugs!"

I wish that were the case. I'd like to believe LBB fiscal notes promote such absurdities because of an honest error, because somebody there really does believe that nobody will be incarcerated under such a statute if it becomes law. But nobody actually thinks that.

The problem is, fiscal notes on enhancements aren't actually mathematical calculations, they're political ones. Bills that LBB knows for a fact will increase the number of prisoners routinely are dubbed "insignificant" in cost, despite the fact that we must lease extra beds for them from private prison contractors. There's literally only one criminal enhancement I've ever seen which gets a fiscal note - bills increasing penalties for burglary of a motor vehicle (BMV) from a Class A misdemeanor to a state jail felony - and the only reason is back in 2005 a bunch of us spent months fighting with LBB over it until they finally caved. But just on that one bill. Even bills sending the same number of people to state jail as BMV get "insignificant" fiscal notes.

Rep. Allen Fletcher just passed a bill out of House Criminal Jurisprudence enhancing a crime from a Class B to a first degree felony that, according to testimony, would apply to 130 people per year just from Houston, but it's supposedly got an "insignificant" cost. And Sen. Leticia Van de Putte's human trafficking bill has several enhancements LBB didn't account for. Everywhere you look, bills increasing criminal penalties are passed at the Lege with no regard at all to the costs of incarceration. By contrast, LBB acknowledges that bills reducing incarceration pressures save money, but not the converse. And the worst part, there's little evidence such enhancements reduce the behaviors they target. So the expenditures not only are unaccounted for, but taxpayers get little bang for the buck.

I hate to use words like this, but the budgeting process on criminal sentencing is simply dishonest. And it's equal opportunity dishonesty. Democrats and Republicans play the same game. Such slight of hand benefits politicians as a class, sorta like lobby perks. It's become a staple ploy for legislators to use "enhancements" to symbolically align themselves against this or that activity that's annoyed some class of their constituents. Graffiti's a great example: We see bills boosting penalties every session, but prosecutors secure fewer than 300 convictions annually statewide compared to tens of thousands of crimes. Yet boosting clearly ineffective penalties even higher is the only solution ever proposed, even though the clearance rate for the offense is so low the punishments never apply to most taggers.

At the municipal level folks may try more practical approaches, but for whatever reason, there seems to be a fundamental failure of imagination at the Lege when it comes to addressing social problems like drug abuse and graffiti. Instead, partially because it's considered cost-free in the budget, the knee-jerk legislative response to every fresh complaint is to propose criminalizing a disliked behavior or increasing punishments if it's already against the law. That usually doesn't stop the behavior, but in the next election cycle the politician gets to say they were "tuff" on whatever disliked activity they've targeted.

If LBB would just do its job - calculating the number of extra prisoners from such bills multiplied by current rates for private prison beds - lawmakers would be forced to secure appropriations for every enhancement bill they pass. Even better, maybe, just maybe, legislators would be forced to think through problems constituents bring them more carefully, set priorities, and actually come up with cost-effective solutions that work, maybe even that save money. In any event, Texas won't see real, fundamental reform in the criminal justice arena until LBB fiscal notes are based on math, not political expediency.

See related Grits posts:

• 308 bills push tougher penalties
• Time for Truth in Sentencing Budgets from LBB
• On expanding the death penalty, budgets, and unfunded mandates
• Copper theft: Case study in failed criminal penalty enhancements
• Why is creating new felonies the solution to every social problem? Immigration edition
• Predictable as bluebonnets in spring: Biennial march of the enhancements begins anew
• Dozens of new crimes proposed at Lege: Will LBB man up and assign them fiscal notes?
• 2,383 and counting: How many felonies from the 82nd Texas Legislature?
• New crimes, penalties 'enhance' nothing but spending side of state, county budgets
• Privatization and the fallacy of zero 'fiscal notes' for criminal penalty enhancements 
• Bigger priority on vehicle burglaries: Solving crimes or harsher punishment?
• Levin: Time to rethink what's a crime
• 'Absolutely irresponsible': Okies boosting criminal penalties but can't house inmates they've got
• Parole board: Texas created 59 new felonies in 2009
• Penalty hikes represent a failure of imagination

Time for Truth in Sentencing Budgets from LBB

I find it fascinating that other states, notably Missouri, are beginning to tell judges the cost to taxpayers of sentences they impose, as described in this blog post from Lauren Brooke Eisen at the Vera Institute.

By contrast, in Texas legislators don't even get honest assessments of the costs of criminal penalties before passing them into law. Our Legislative Budget Board considers nearly all new crimes and criminal penalty "enhancements" to have an "insignificant" cost, no matter how many additional people will be incarcerated, while in Missouri they're actually calculating the cost of each individual prisoner sentenced and giving the judge (and everybody else) that information up front: "The Missouri Sentencing Advisory Commission (MOSAC) now tells judges the cost to the state for their sentencing decisions. Judges, as well as attorneys and probation officers, can enter details into a computer program and receive a printout with sentencing options, the cost to the state for each option, and the likely rate of recidivism (acts that result in new arrests, convictions, or incarceration) for each option."

Of all the reforms one might envision in criminal justice policy, perhaps the most radical change agent imaginable would be simply assigning accurate cost figures to sentences as well as assessments of collateral consequences - both for decisions by policymakers at the Legislature as well as for judges setting sentences (perhaps as part of a presentencing report, as in Missouri).

I'd love to see Texas implement a system to calculate individual sentence costs, as they have in the Show-Me State, but for the time being I'd settle for the Legislative Budget Board acknowledging in their fiscal notes that incarcerating more people costs anything at all!

On expanding the death penalty, budgets, and unfunded mandates

State Sen. Joan Huffman has a bill up (SB 377) tomorrow in the Senate Criminal Justice Committee that would expand the option for prosecutors to pursue capital punishment in cases where a child under ten years old is murdered. Presently prosecutors can seek the death penalty when the victim is under six years old, as well as under a litany of other circumstances. I'm sure testimony on behalf of the bill will be emotional, and there's a legitimate debate to be had about what is the "right" punishment for people who kill children: Whether death or life imprisonment, for example, best exemplifies "justice."

But I want to set aside those hot-button questions for the time being and focus instead on the predictable, politically motivated lie in the fiscal note that "No significant fiscal implication to the State is anticipated" from this bill. Except everyone knows the cost of capital punishment isn't "insignificant" at all, especially when the death penalty is sought and especially considering the cost of appeals, which like it or not are a reality that even the Roberts court is not likely to reverse.

Consider: Remarkably, Illinois now estimates that their abolition of the death penalty earlier this month will save the state $4.7 million in annual appellate costs, letting them fire 37 employees at the state appellate defender (Texas usually pays contract fees to outside counsel instead of having a public defender do the job). And Illinois only had 15 people on death row! Texas at the moment has 314. God knows what a comparable cost figure would be here!

According to the Criminal Justice Impact Statement, "In fiscal year 2010, 13 offenders were admitted to the Texas Department of Criminal Justice for capital murder of a child under six years of age." If people are convicted for killing children age 6-9 at the same rate as from 0-5, there will be ten additional capital murder convictions each year, give or take, as a result of this bill. Those killers would have been convicted of murder, anyway, so the main effect of the enhancements is to invite years of costly, avoidable federal appeals.

Even the LBB fiscal note acknowledged SB 377 would place an additional burden on local taxpayers: "the fiscal impact to a county in which an indigent defendant is tried could be substantial.  According to the Office of Court Administration, the minimum cost of such a case may be as low as $100,000 but it could exceed $500,000.  This could be a significant cost for smaller counties." There are also hidden, additional costs for the state, for crime labs, and for all sorts of ancillary agencies that support the process. 

Like all enhancements that aren't accounted for with an accompanying revenue stream or a reduction in other penalties, this bill amounts to an unfunded mandate, generating more of the most expensive type of criminal cases with little evidence the law will deter. Emotional arguments aside, LBB's failure to assign fiscal notes to marginal enhancements like SB 377 allows the Legislature to avoid important debates about how will the state pay for the cost of its git-tuff policies.

Oppose legislation that could prevent reporting police misconduct, bloat budget

There's a bill up in House Criminal Jurisprudence today, HB 41 by Rep. Jose Menendez, that would create a new state jail felony for making false allegations that a police officer engaged in felonious conduct, upping the charge from a Class B misdemeanor.

Under this bill, a false statement to the police would become "a state jail felony if the false statement made by the actor with the intent to deceive alleges that a peace officer engaged in conduct that constitutes a felony offense."

Talk about a bill rife with unintended consequences! Average people don't know the law and have no immediate way of knowing whether they're alleging a felony when they report police misconduct. And despite the "intent to deceive" language, it's all but certain this law, if passed, would be used to intimidate potential witnesses out of reporting police misconduct at all. After all, seemingly most police officers with citizen allegations against them think their accusers are intentional liars: Just ask them. Sometimes it's true, sometimes it's not, but you can imagine a corrupt officer saying to a victim or witness of police misconduct, "Who will they believe, me or you? I'll say you're intentionally lying, which is a felony. You're the one who'll be going to prison."

I should also add that, as usual, the Legislative Budget Board has given HB 41 a fiscal note saying its cost is "insignificant," which is absurd on its face. In this case, that could only be true if cops only used the law to intimidate potential witnesses of serious misconduct, and there were no people actually making false reports. 

Let's assume instead that there are, in fact, some people making false reports. Let's say people are convicted under this law just 10 times per year statewide (probably a low estimate). If Texas owned all its own prisons, the cost might well be "insignificant" to feed, clothe, etc., ten extra prisoners per year. But since TDCJ pays for extra private capacity (more than 11% of all beds), and since state jail beds are essentially fungible, really the marginal cost of each new prisoner is the cost of the last private state-jail bed leased.

At 2010 rates (according to the latest Uniform Cost Report [pdf] from LBB), state jail felons in private facilities cost $30.73 per day to house, plus an extra $4.22 in costs to the agency (transportation, classification, etc.) that aren't paid to the vendor, giving us $34.95 per day or $12,757 per inmate per year at private state jail facilities. If state jail sentence is two years (served day for day with no parole), each offender convicted under the law would cost the state $25,513. Under these (minimalist) assumptions, each year the state will incarcerate new offenders under this law that will cost taxpayers $255,130, which, for example, would be enough in the budget to keep from charging counties fees for having local jails inspected. But those costs won't be accounted for in the budget if this bill is passed, even as over time it silently offsets reductions elsewhere in state agency budgets.

"Fiscal note" estimates on criminal penalty enhancements are nothing but convenient political fictions. They're designed not to tell budgeters how much "enhancement" bills cost but to let legislators look "tuff on crime" without having to account for their actions in the budget. Everybody at the capitol who's got a $250K program they'd like to fund should be pissed about all the sentence enhancements passed each year at the Lege, not to mention the fact that LBB lets them pass by without attaching a price tag. The fiscal note admits that "When an offense is changed from a misdemeanor to a felony, there is a transfer of the burden of confinement of convicted offenders from the counties to the State," but they just don't account for that financial "burden."

Even so, since virtually all legislators also have their own penalty-increase bills they want to pass, everybody winks and nods and pretends the emperor is really wearing clothes, then later we wonder how the corrections budget got so big that Gov. Perry and the House Appropriations Committee want it cut by $786 million.

UPDATE (3/9): I happened to be in the room when Rep. Menendez's bill was heard. It stems from an incident in San Antonio at in which a woman arrested for her third DWI first accused five officers who'd arrested her of raping her then rather quickly recanted the story, which the officers said wasn't credible anyway for a variety of reasons. Still, the department felt compelled to investigate for many hours after her recantation, taking swabs from the officers and the woman who "outcried," etc., and the officers felt the allegations will "stick with" them, for reasons I don't fully understand, even though they were fully exonerated and the records closed. The woman was charged with a Class B misdemeanor.

The whole discussion was quite odd - basically police officers complaining that, following sexual-assault allegations, they're subjected to the same investigative techniques applied to everyday suspects, only when it happens to cops it creates "irreparable harm." It's getting more publicity because they're pushing this bill than it ever would or could have of its own accord: For whatever reason, they're the ones calling attention to an incident that the public would never know about, and which would already be a closed record under the state civil service code, which covers SAPD. They're complaining that a notation may be made in their closed, internal affairs file that an accusation was made and deemed unfounded, but the public would never know any of this if they hadn't come forward talking about it under their own names. Rep. Wayne Christian was particularly concerned how this information would not remain confidential, but his confusion stemmed from the fact that the incident did not and under normal circumstances probably would never become public - he was only hearing about it because the officers are trying to make it a big deal.

Rep. Stefani Carter observed that, according to the Criminal Justice Impact Statement for the bill, "In fiscal year 2010, approximately 629 people were arrested and 230 of those arrested in fiscal year 2010 were placed on misdemeanor community supervision for the offense of false report to peace officer or law enforcement employee." So in 63% of cases prosecutors dropped charges. Chairman Pete Gallego pointed out that boosting the punishment to a felony wouldn't solve the problem if prosecutors didn't pursue most cases anyway. Or, perhaps police are arresting for this offense more often than is really warranted. Either way, this is another solution looking for a problem, a symbolic enhancement proposed more because of a lack of imagination than because it would improve the system. Even so, no one spoke in opposition.