Lege diverting 'dedicated' criminal justice fees to balance budget

One regrettable trend emerging in the 82nd Texas Legislature is to divert funds from dedicated fees - both in the criminal justice arena and elsewhere - to help certify the budget. State Sen. Rodney Ellis has criticized SB 1582, which raids money designated for juror pay and withholds grants from the Task Force on Indigent Defense to counties. The bill passed out of the Texas Senate yesterday. According to Ellis' press release:

In 2005, Texas ranked dead last in the nation in what it paid jurors, who had not received a pay raise since 1954.  To boost jury participation, the legislature added an additional $4 fee on criminal convictions, and used the fee to provide Texas counties funds to raise jury pay to $40 a day.  In addition, any money raised above the level to fund the jury pay raise was dedicated to the Texas Fair Defense Fund to provide indigent criminal defense.
 
SB 1582 essentially eliminates the juror pay raise and uses that money to certify the budget.  SB 1582 also takes the millions in the Fair Defense Account and uses it to balance the budget.
 
"This is a rip-off," said Ellis.  "It took years to force this state to make these small but vital justice reforms and now, in one fell swoop, we are destroying any progress we've made."
 
Furthermore, in CSHB 1, the Task Force on Indigent Defense is now granted a "sum certain appropriation" rather than "estimated budget authority."  This seemingly minor change significantly reduces the amount of money available for indigent defense grants to Texas counties. It is estimated that $16.6 million will accrue in the Fair Defense Account over the coming biennium to balance the budget rather than be spent on grants to the counties for indigent defense, even though the Account is funded through a series of court-related fees specifically put in place solely to fund indigent defense.
 
"This is yet another example of this legislature taking money from those at the bottom while protecting those at the top," said Ellis.  "We used the exact same fee we are going to raid under this bill--this $4 fee on convictions--to give judges a pay raise that same session.   Are we going to reduce the salaries of our judges this session? No." 
 
"At some point we must stop the smoke and mirrors, stop robbing Peter to pay Paul and address the structural challenges facing this state," Ellis said.

Peggy Fikac at the Houston Chronicle has a story about the bill, quoting state Sen. Kirk Watson criticizing the practice of gather fees under a pretext that they're designated for a specific purpose, only to divert funds after the fact:

Sen. Kirk Watson, D-Austin, also questioned the practice of keeping large unspent balances from fees to help balance the budget. If the revenue is not allocated for a fee's intended purpose, it can be used instead to allow more spending elsewhere.

An estimated $3.7 billion in balances is used in this way in the current budget, and Watson said that would rise to an estimated $4 billion or more in the budget proposal.

He called it "a growing bad practice of financial management, which is that we tell the public we're raising a fee or a tax for a specific purpose, but it gets used to balance the budget in other ways."

Another great example of what he's talking about may be found in the plan to cut funding for local 911 emergency lines while keeping the dedicated fee on cell phones and landlines that pay for it. And of course, on a much larger scale, it's why Texas hospitals aren't getting most of the money "dedicated" for trauma centers from the Driver Responsibility surcharge.

The same thing is happening with the Texas Auto Burglary Theft and Prevention Authority, which is funded by a $1 fee on every insurance policy. The Corpus Christi Caller Times reports on plans for "keeping the $1 charge but doing away with the task forces statewide. The state would use the money to help plug a budget shortfall of billions of dollars." As Grits has argued previously, cutting grants for investigating auto thefts and burglaries is especially absurd in combination with a proposed penalty enhancement to the crime of burglary of a vehicle. Clearance rates for vehicle burglaries are already minuscule, so it makes no sense at all to slash investigative resources but INCREASE spending on punishment of the handful of offenders caught. Adding insult to injury, SB 9, which just passed the Senate yesterday, would double that theft prevention fee and divert half the increase to other priorities. 

These fees and surcharges were all created for one reason: The Legislature wanted to pay for this or that program but was unwilling to raise taxes. So they created supposedly "dedicated" fees to generate cash that they pretend are not tax increases. But now that dedicated money is becoming just another General Revenue source, making the fig leaf that fees aren't taxes that much more implausible. At this point, it's become a distinction without a difference.

Austin police clearance rates for burglary plummeting

Clearance rates by the Austin Police Department for burglaries have radically declined in recent years - from 9% in 2000 to 5% in 2009 - and remain far below the national average clearance rate for burglaries of 13%, according to materials (pdf) presented last month to the Austin Public Safety Commission.

Perhaps as a consequence, the burglary rate in Austin per 100,000 residents increased over the same period from 1,048 to 1,138, making it among the most commonly reported crimes in the capital. The biggest increase came in residential burglaries, where taking a serial offender out of circulation has a disproportionate benefit to victims. A survey of Austinites included in the materials found that "Burglary of a residence is perceived as the 'most critical' problem by a large majority (55%), with all other categories of crime trailing far behind." Asked to identify the most critical public safety issue in their neighborhood, Austinites said:

• Burglary of a residence: 54.6%
• Burglary of a vehicle: 13.4%
• Violent Random Crime: 3.3%
• Violent Domestic Crime: 1.3%
• Drug Related Activity: 7.7%
• Traffic Issues: 6.9%
• Neighborhood blight: 3.3%
• Graffiti: Less than 1%

Increasing penalties for burglary - either of a residence or vehicles - helps little when clearance rates are so low. The relative certainty of punishment is more important for preventing crime than its intensity. If only one in 20 burglaries are solved, compared to more than one in eight nationally, harsher punishments won't help much. These are problems caused in the big picture by misplaced policing priorities, spreading law-enforcement resources too thin by trying to use it to solve every new social problem while failing to adequately investigate traditional, bread-and-butter crimes.

Another staff power point (pdf) says that APD's 14 property crime technicians "Respond to 35-45% of burglary crime scenes (limited due to availability of personnel)." So most burglaries they don't even pretend to seriously investigate, but they've got officers available to sit around in school zones to write tickets for texting. What's needed here isn't harsher punishments or more "enhancements" available to prosecutors; APD just needs to shift scarce resources to solving crimes that most matter to the public.

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

Why is creating new felonies the solution to every social problem? Immigration edition

Talk about cognitive dissonance: AP reports, "Bill would make hiring illegal workers a felony," while the Texas Tribune adds, "But maids are OK."

As if for a second there's remotely enough extra space in Texas prisons or jails to create a new class of "criminal" businesses and entrepreneurs! It's absurd to even imagine. But still, this and other similarly draconian measures are being debated seriously at the same time as $584-$786 million cuts are being demanded at TDCJ. Meanwhile, urban jails are full, but other legislation would require local law enforcement to boost demand for jail beds with immigration violators. Big Government Conservatism is just as expensive as Big Government Liberalism, and with one in 22 adult Texans already in prison, jail, on probation or on parole, the Lone Star State has pretty much already maxxed out on how many people we can afford to lock up. Ask voters in my hometown in Tyler, no liberal bastion, who have turned down four county jail plans in the last several years and will now vote on a fifth proposal in May. For the most part, as the Smith County example shows, folks who don't want higher taxes don't want them for jails any more than they do for Obamacare. So where would we put all the immigration arrestees? Federal courts are backed up and can't process more cases, a situation exacerbated by the fact that border districts like the Texas Southern can't get federal judicial nominees approved in the US Senate.

If implemented as sweepingly as proponents describe, these bills would flat-out swamp the criminal justice system, in much the way that substituting incarceration for mental health treatment has put undue burden on police, jails and courts. Using the criminal justice system to "solve" social problems like immigration, substance abuse, mental illness, etc., ensures  a) the system's failure and b) that other, more on-point solutions aren't pursued. We've already got 2,383 felony crimes on the books, according to the parole board's most recent count.

I realize my position on immigration puts me in the minority. I'm just not that freaked out by immigration, consider it much more boon than bane for the economy, believe most "illegal immigrants" should have been allowed legal access in the first place, and find the notion abhorrent that a nation of immigrants and their children would grow wealthy and then seek to close the doors behind them. Let's set those disagreements aside, though, just for a moment.

Here's what I want to know: As a practical matter, Texas is already talking about reducing prison capacity, and urban jails in Harris, Dallas, Hidalgo, Cameron, and Bexar are packed to the gills. Where, physically, will those arrested and prosecuted go and how will proponents of such measures pay for it? If federal courts can't process current volumes, how will they handle all the new immigration cases local law enforcement is supposed to be bringing them? We're talking about unleashing local law enforcement on potentially millions of otherwise law abiding folk and thousands of Texas businesses who also employ plenty of actual citizens, diverting police efforts from more serious crimes. (Federal prosecutors in Texas have all but stopped pursuing white collar cases to focus on their immigration caseloads.)

Clearance rates for "burglary of a vehicle" are less than 2%, the House Criminal Jurisprudence Committee was told on Tuesday, but we're going to divert law enforcement to rounding up illegal immigrants and their employers? Arguably, the reason BOVs don't get solved more often is that law enforcement is already spread too thin, and these types of laws certainly don't help the problem.

Mass incarceration is a rich nation's game, and the bill is due. With one in 22 adult Texans already under supervision of the state criminal justice system, surely there's a limit to how much incarceration may be further used to address social problems like immigration, which historically, at least since Reconstruction, has not fallen under the purview of state courts or local law enforcement. More cops, jails and prisons cannot be the solution to every social problem, but for some reason they're almost always the only ones proposed. More than anything, perhaps it just represents a failure of imagination.

Bigger priority on vehicle burglaries: Solving crimes or harsher punishments?

Brandi Grissom at the Texas Tribune reports that the proposed House and Senate budgets both would zero out funds for the Texas Automobile Burglary and Theft Prevention Authority, despite exceptional, on-the-ground results since its inception in auto-theft cases, as depicted in this chart:

That said, here's the real tradeoff facing the Legislature on the Authority's funding that Grissom didn't mention: Police chiefs and many legislators - led by Reps Debbie Riddle and Vicki Truitt - want to increase the penalty for burglary of a vehicle (that's stealing items from a vehicle, not auto theft) to a state-jail felony on the first offense. If that happened, it would send around 550-800 extra inmates per year to be incarcerated in Texas state jails. The fiscal note to essentially similar 2005 legislation (which, I should add, was a source of much contention and the only example I know of where the Legislative Budget Board found a sentence "enhancement" would cost money) said that by the time the penalty increase rolled out fully, it would cost the state more than $10 million extra per year to incarcerate the additional offenders. That figure would be even greater calculated at today's costs.

The Texas Automobile Burglary and Theft Prevention Authority, by contrast, gave out just over $14 million in grants to local law enforcement in 2010. In other words, it would cost more or less a similar amount to Rep. Riddle's proposed penalty enhancement (once the 2005 LBB estimates are adjusted for inflation).

Burglary of a vehicle (BOV) - which can be anything from reaching into an open window to lift a CD to smashing a window to steal a car stereo or Christmas gifts in the mall parking lot - is a crime with extremely low clearance rates (i.e., even when reported, the crimes usually aren't solved or often even investigated). There are definitely career criminals out there making a living at BOV, but it's also an offense that's sometimes a crime of opportunity which ensnares juveniles and other immature souls.

In that context, resources from TABTPA focused on solving crimes, to my mind, get a lot more bang for the buck than paying for the state to incarcerate first-time offenders. The career thieves who may break into hundreds of vehicles are the ones you want off the street, but it's important to distinguish them from the teenager who's caught lifting a couple of CDs. And of course, if the value of goods stolen is greater than $1,500, it's a state jail felony, anyway - the proposed enhancements would apply to those who steal lesser amounts.

Boosting punishments may sound "tough," but you can't punish offenders if you never catch them, which is where these grants come in, paying for investigation resources beyond local departments' routine deployments and letting them coordinate across jurisdictions. That said, the authority has focused most of its resources on preventing auto theft, and a credible critique can be made that they haven't focused grants as intently on BOV as on straight-up car theft, where 2/3 of stolen vehicles are recovered. Perhaps, if their funds are reinstated, they'll get a chance to rectify that shortcoming.

In any event, there are quite a few bills filed already this session that would increase first-offense BOV to a state-jail felony and/or restrict community supervision options. (Repeat offenders already get mandatory jail time on the second offense and a state jail felony charge on the third.) Such so-called "enhancements," as a practical matter, are in direct budget competition with TABTPA grant money, with the economic crunch forcing the Lege to choose its preferred approach to these crimes: Solving them or grandstanding about them.

Obviously, Grits would prioritize the former. For offenses like burglary of a vehicle with low clearance rates, government should first focus scarce resources on catching the bad guys instead of assuming ever-harsher punishments will deter criminals to whom they're never applied.

Dallas data definititions changed to acknowledge more car burglaries

After the Dallas News called them on juking their stats, the Dallas Police Department changed its protocols for how it classifies car burglaries so that documentation is required before a complaint is deemed "not credible." Prior practices caused the department to underreport car burglaries by about 2%, according to the News.

Great job by reporters Tanya Eiserer and Steve Thompson vetting DPD's data.

Burglary of a vehicle ... blech!

In today's House Criminal Jurisprudence Committee hearing there are a whole bunch of bills scheduled on the topic of boosting the penalty for burglary of a vehicle. This is not stealing a vehicle, but stealing a purse or CDs or car stereo out of somebody's car. (Here's a fact sheet opposing the version of the bill that passed the House in 2005.)

Current law makes burglary of a vehicle a Class A misdemeanor, which is punishable by up to a $4,000 fine and a year in the county jail. Zealots last year wanted to boost the first offense to a state jail felony, meaning everyone who stole a CD out of a car would be a felon and incarcerated in the Texas prison system.

Y'all, a lot of CDs get stolen out of cars in this state - we're talking about a lot of folks. So yes, it's really a bad idea. But that doesn't mean it won't soon become law.

Senate Criminal Justice Chairman John Whitmire has correctly said this is a "boutique bill," that so many politicians have campaigned on it that some version of it will likely pass, sometime, somewhere. So he and Chairman Peña have crafted what I think is a reasonable compomise, the first version of which will be one of the bills heard today, HB 1887, in the Criminal Jurisprudence Committee.

Bottom line: It makes burglary of a vehicle a state jail felony on the third offense, but with a devious addition that amounts to a finger in the eye of many of the bill's most ardent supporters, particularly county sheriffs who run the local jails, but also many county attorneys. It requires a minimum sentence of six months incarceration on the second offense before a state jail felony sentence can be imposed.

Why is that a jab at sheriffs (and to a lesser extent local prosecutors)? Because committee testimony in both chambers last session showed that offenders were receiving probated Class A misdemeanor sentences with little or no jail time many times over, primarily because - Duh! - local jails are full, and there wasn't any place to house somebody who stole his neighbor's copy of the new Jay-Z CD out of the convertible.

Well, guess what? There's no room in the state prison for that guy, either.

So this bill requires that second offenders spend six months in the local jail, where of course as regular readers know there is no room. In particular in Dallas, where many of the most zealous supporters of this bill come from, for whatever reason, this is exactly the type of offender they recently had to release to avoid sanctions by the Texas Commission on Jail Standards!

If I were the Dallas Sheriff, I'd oppose this bill until the local jail problem is fixed. Four of the nine committee members, like the Dallas Sheriff, are Dallas Democrats, three of them freshmen - I wonder how that will play out at the hearing?

Barring the unforeseen, like a backlash from sheriffs and jail administrators, at the end of the day some version of this bill will likely pass, if I had to guess, since it doesn't appear as though Chairman Whitmire is going to stop it like he did last time, and he and Chairman Peña are sponsoring identical bills.

The fiscal note for HB 1887 says the cost would be nearly $3.5 million per year by the time the legislation is fully applied (in the first couple of years some of the people sentenced, presumably, would have committed their offense under the old statute). But the Legislative Budget Board's methodology merely takes the current cost per prisoner at TDCJ and multiplies it by the number of new prisoners.

Problem is, we're already leasing 1,900 beds from counties, and the Criminal Jurisprudence Committee needs to reduce, not increase that number. The fiscal note estimates per diem costs for new inmates at $36.53, but we're paying counties more than $40, according to recent legislative testimony

But even that understates the cost. The truth is if we keep increasing the number of prisoners instead of reducing them, we're going to need more prisons which will cost hundreds of millions of dollars, not less than $3.5 million per year, as optimistically predicted by the LBB. "No costs are included for state jail construction," declared LBB's fiscal note. Last session they used the same methodology, and I declared LBB was living in a "Fiscal Note Fantasy World."

If I could change the bill, I'd like to see the felony statute applied only when damage is done to the car. If you break a window with a brick to steal a purse with $20 in it, that's different to me than stealing it through an open window. Stealing CDs out of a car should never be a felony. But when my car stereo was ripped out and replacing the dash cost $1,400 - sure, by the third conviction those guys need to get the message.

In the big picture, though, it's worth mentioning that the best way to satisfy the public regarding this crime is more and better enforcement, not how hard we punish the small handful of people who are caught. Clearance rates for burglary of a vehicle are typically in the single digits, and police rarely seriously investigate low-level property crimes. The only way to really reduce this crime is more boots on the ground, but nobody can afford so many more officers or even find qualified canidates to fill slots when they're open.

So like HB 8, this is a bad bill with legs, though kudos to Whitmire and Peña for making the best of a bad situation.

For me, I think every legislator who proposes increasing prison sentences, and there are a lot of them, has a responsibility to simultaneously identify twice as many current inmates who should be released to make room for them, and include it in the bill language. I'm just saying, the prisons are full. Let's be realistic about how many more prison sentences Texas can reasonably increase.

Finally, the real story about burglary of a vehicle comes out

Dallas-area reps complained all session of a rise in items stolen from cars, spawning a huge push this spring to make burglary of a vehicle a felony. Bill proponents claimed the reduction of the charge to a misdemeanor 12 years ago spawned recent burglary rashes.

The Dallas News, though, finally reports the real reason crime rates for vehicle-burglary rose: Dallas police don't want to investigate property crimes. Dallas' problem with vehicle burglaries won't be solved by increasing penalties if police aren't enforcing laws on the books.

Related: Rep. Peña writes about becoming the House sponsor of HB 1874 by Whitmire, the Senate's vehicle burglary solution, while Injustice Anywhere pens Dean Whitmire a love letter admiring him for his leadership on probation and fighting a vehicle-burglary sentence increase. You gotta give him props: This news out of Dallas really make it sound like Dean Whitmire made the right call.

Slightly less related: Marc Campos considers Whitmire the "leading voice" of Texas' Democratic Party. Via Kuff.

Burglary of a vehicle debate over. Whitmire wins.

The debate about making burglary of a vehicle a felony (stealing items from a vehicle, not auto theft) is over. It ain't happening this time around.

The Senate Criminal Justice Committee, under Chairman John Whitmire's watch, has bottled up bills that would increase prison sentences for vehicle burglary like HB 151 and HB 1324. Today, instead, that committee passed out SB 1874, introduced just last week and cosponsored by every member of the Senate, to add preventing car burglaries to the duties of the Texas Automobile Theft Prevention Authority. It would not, however, increase penalties.

That's a bold statement about the Senate's intentions on the matter. One would think it's time for House members looking for last-minute prison sentence increases to turn their attentions elsewhere.

Meanwhile, Ann brings the word that SB 1266 - Texas' long-awaited probation reform package, also passed out of the Criminal Justice Committee today. (UPDATE: See SA Express News coverage here.) Congrats to all involved: It was an enormous job, and to my mind a skillful balancing of interests, in the end, by the committee. Maybe this weekend I'll get around to adumbrating the bill.

Who's in the 'lock-em-up league' in the Texas House?

Texas faces an overincarceration crisis, but the state House of Representatives can't bring itself to stop it's knee-jerk, lock-em-up habits.

I've written how budget pressures facing the Texas Legislature have run full up against the traditional biennial pastime of increasing criminal prison sentences as a way to grandstand for constituents. There are several so-called penalty "enhancements" (read prison sentence increases) moving through the process, but the only one to pass either chamber so far is HB 151 by Truitt, which would make burglary of a vehicle Texas' 1,942nd felony and add around 700 new prisoners to Texas' system by the time the 80th Legislature meets in 2007. The bill would cost taxpayers hundreds of millions of dollars because Texas doesn't have space to house the new inmates, but the Legislative Budget Board and the MSM keep propagating the myth that the bill costs just $9 million.

I'd mentioned that HB 151 passed, but didn't post details. Representatives Harold Dutton, D-Houston, and Terri Hodge, D-Dallas, both proposed amendments to the bill that would have done more to accomplish Rep. Truitt's stated aim: targeting repeat offenders. She would not accept them, though. Dutton's amendment was similar to a bill filed by Rep. Peña that would have increased the penalty to a felony on the third offense, Hodge's would have increased the penalty on the second. Those voting to table Hodge's amendment, arguably, represent the core, working majority in the Texas House that supports increasing prison sentences regardless of how much it costs. She lost that motion to table by a margin of 82-59. In the end, though, 96 Texas House members voted for HB 151, becoming charter members of what Grits may have to start calling the "lock-em-up league":

Alonzo(D); Anchia(D); Bailey(D); Baxter(R); Berman(R); Blake(R); Bohac(R); Bonnen(R); Branch(R); Brown, Betty(R); Brown, Fred(R); Callegari(R); Campbell(R); Casteel(R); Chisum(R); Cook, Byron(R); Cook, Robby(D); Corte(R); Crabb(R); Crownover(R); Davis, John(R); Dawson(R); Delisi(R); Denny(R); Driver(R); Eiland(D); Eissler(R); Elkins(R); Escobar(D); Farabee(D); Flynn(R); Frost(D); Gattis(R); Geren(R); Goodman(R); Goolsby(R); Griggs(R); Hamilton(R); Hamric(R); Hardcastle(R); Harper-Brown(R); Hartnett(R); Hegar(R); Hilderbran(R); Hill(R); Hope(R); Hopson(D); Howard(R); Hughes(R); Hunter(R); Hupp(R); Jackson, Jim(R); Keel(R); Keffer, Bill(R); Keffer, Jim(R); King, Phil(R); Kolkhorst(R); Krusee(R); Kuempel(R); Laney(D); Laubenberg(R); Martinez Fischer(D); McClendon(D); McReynolds(D); Merritt(R); Miller(R); Morrison(R); Mowery(R); Nixon(R); Orr(R); Otto(R); Paxton(R); Pena(D); Phillips(R); Pickett(D); Pitts(R); Raymond(D); Reyna(R); Riddle(R); Ritter(D); Rose(D); Seaman(R); Smith, Todd(R); Smith, Wayne(R); Smithee(R); Solomons(R); Straus(R); Swinford(R); Talton(R); Taylor(R); Truitt(R); Van Arsdale(R); Vo(D); Wong(R); Woolley(R); Zedler(R)

Rep. Pat Haggerty, R-El Paso, made an impassioned plea that the bill wouldn't do anything to help the problem, would cost more than LBB's fiscal note claimed, and was fiscally irresponsible. He asked members to vote down the bill entirely. Forty two representatives joined him. It's worth saying thank you to Haggerty, Hodge, Dutton, and to those who stood up against the "tough on crime" rhetoric on behalf of smaller government and fiscal sanity. The 43 who voted against the final bill were:

Allen, Ray(R); Burnam(D); Castro(D); Chavez(D); Coleman(D); Davis, Yvonne(D); Deshotel(D); Dukes(D); Dunnam(D); Dutton(D); Edwards(D); Farrar(D); Gallego(D); Gonzales(D); Grusendorf(R); Guillen(D); Haggerty(R); Herrero(D); Hochberg(D); Hodge(D); Homer(D); Isett(R); Jones, Delwin(R); Jones, Jesse(D); King, Tracy(D); Leibowitz(D); Luna(D); Madden(R); Martinez(D); Moreno, Joe(D); Moreno, Paul(D); Naishtat(D); Noriega(D); Oliveira(D); Olivo(D); Rodriguez(D); Solis(D); Strama(D); Thompson(D); Turner(D); Uresti(D); Veasey(D); Villarreal(D)

Several members, like Carl Issett and Delwin Jones (both R-Lubbock), Mark Homer (D-Paris) and Kent Grusendorf (R-Arlington) switched their votes after Haggery's impassioned plea. Good for them. Anyway, supposedly, cooler heads in the Senate may stop HB 151 and other penalty increases from happening this time around. But that doesn't excuse the lock-em-up league's irresponsibly draconian votes. Check out how your representative voted; if you don't know who is your state rep, check by typing in your address here.

Who is to blame for prison red ink? LBB, and those who believe them

This week, the Texas Legislative Budget Board's phony estimates regarding the cost of bills increasing prison sentences appear about to come home to roost. If legislators don't figure out LBB's numbers are bogus, the state can expect an ocean of red ink for which nobody's budgeted.

I mentioned Friday that HB 151, which increases the penalty from a misdemeanor to a felony for burglary of a vehicle, appears on Tuesday's House calendar. That bill would require building 500-700 new prison beds, but in his coverage on Sunday, the Statesman's Mike Ward repeats LBB's laughably false estimate that the bill would only cost the state $9 million per year. The real figure is more like $200-$350 million to build more prison units, depending on who is estimating.

I know from experience where LBB is getting their math wrong, because ACLU made exactly the same mistake a couple of years ago. Ultimately, then-Texas Criminal Justice Policy Council Director Tony Fabelo set us straight, and in the end of our discussions I'd accepted that his model was more valid than our simplistic approach. Now that his agency has been abolished, LBB apparently is reinventing the wheel, and without Fabelo's sage experience, they're giving the Legislature flat-out wrong information.

Here's how I learned this lesson. When preparing in 2002 to promote sentence restructuring for low-level, non-violent offenders last session, ACLU asked for Texas' prisoner database under the open records act. The data wasn't much good, but we were able to come up with rough estimates of how many inmates would be removed from the state system, say, if low-level drug possession became a misdemeanor instead of a state jail felony. This gets a little wonky, but it's important, so stay with me.

To estimate costs, we took the state's estimate for cost-per-prisoner, multiplied that by the number of folks whose sentences would be affected by the bills, and used the totals in our literature to say how much cost would be avoided. Fabelo learnedly quashed those numbers about mid-session, though, coming up with much lower savings estimates that became the official ones. He noted that the bulk of prison costs come from actually running the prisons, so you don't avoid spending money unless you start to mothball units. Since the projected additional prisoners coming in from other crimes would more than offset the difference, the cost avoidance did not translate directly into real dollars for the state.

Similarly, we were told, much to my chagrin at the time, penalty increases were routinely given no fiscal note, meaning the Legislature was told they didn't cost anything. That's because as long as Texas had extra prison space, the marginal cost of adding new prisoners wasn't much. Building new units or leasing extra space, Fabelo said, is what costs big bucks, and in 2003 we weren't quite there yet -- on paper, the prison system supposedly had a little excess capacity, so the marginal extra cost was low.

Pero, no mas. Now, even if Texas does nothing, current penalties require incarcerating thousands more inmates than the system can hold. Texas prisons are full to the brim. Reports Ward:

On Thursday, Texas prisons held 150,862 prisoners. Completely full is 151,500, officials said.

Though the Legislative Budget Board earlier predicted prisons would reach capacity in March, officials now say it will probably occur by sometime in May. Then, the state will have to begin leasing bunks in county jails and private prisons, more than 3,800 in the next two years.

Under a plan earlier endorsed by legislative leaders, officials want to avoid building new prisons by placing more nonviolent felons in community-based treatment and probation programs. They also hope to release on parole more medically incapacitated felons, release others on intensive-supervision programs and put others in new community-justice programs as a way to keep prison beds available for only those criminals who need to be there.

But if only a few of the enhancement bills pass into law, the additional felons coming into the system could easily exceed the projected savings in bunk space during the next five years, critics of the bills note.

Dead right. Tony Fabelo is gone, and apparently he never gave that same math lesson to LBB before he left. In the fiscal note for HB 151, LBB made the same error we did in 2003: they took the overall cost-per-prisoner for Texas prisons, multiplied that by the (probably lowballed) estimate for the number of new prisoners (500-700 inmates; Rep. Truitt said 500 at the hearing, while Ward estimated 700), and came up with $9.1 million - in the context of Texas' overincarceration crisis, an absurdly low estimate. Says LBB of HB 151:

Costs of incarceration by the Department of Criminal Justice are estimated on the basis of $33.78 per state jail inmate per day for state jail facilities, reflecting approximate costs of either operating facilities or contracting with other entities. No costs are included for state jail construction.

So, if state jails are full and we're not budgeting to build any more, where are they going to go? Mexico? Great advice guys. That's the kind of fuzzy math that got us into this mess.

Punishment increase crowd rides emotion, downplays budgets

If you want to understand the pressure on legislators to increase prison punishments in order to "solve" crime, go listen to the first few hours of yesterday's Texas House Criminal Jurisprudence Committee, where dozens of speaker testified on behalf of legislation to increase the penalty for burglary of a vehicle from a Class A misdemeanor to a state jail felony. (That's burglary of items in a vehicle, not auto theft.) Chairman Terry Keel, who expressed concern that legislators were proposing penalty increases without admitting to the financial consequences, predicted some version of the idea would pass this session.

One can learn many things about Texas' criminal justice system from critically observing that hearing, not the least of which is that the urge to increase penalties in response to crime is a bi-partisan pastime. Republicans and Democrats filed similar bills increasing penalties on the first or second offense. From the testimony, the real problem is a small number of career thieves who may be caught several times. Democrat Aaron Pena filed a somewhat more reasonable bill targeting them that would increase the penalty only on a third offense.

Perhaps the most fascinating aspect of the hearing was as a case study of how unintended consequences can arise from well-intentioned acts. That's because the tough-on-crime crowd takes a purely atomic view. There were basically two classes of pro-penalty-increase messages delivered to the committee. From the public, business owners, theft victims, etc., legislators heard, "I'm angry, do something." And from law enforcement folks they heard over and over, "We need more tools." Neither of those groups, however, were able to explain how or if increasing the punishment for this crime -- which can be as minor as stealing a CD through an open car window, not always "smash and grab" episodes -- would prevent what is essentially a crime of youth and opportunity.

Testimony revealed that three theft convictions can already be enhanced (i.e., prosecutors may increase the charges) to a felony for career car burglars, but the law is seldom applied. The current penalty for Class A misdemeanors allows for up to a year in county jail, but witnesses said local courts aren't sentencing convicted vehicle burglars to those max sentences right now. Rep. Terri Hodge kept wondering, and nobody had a good answer, why law enforcement thought making the crime a felony would solve anything, when they weren't fully utilizing the "tools" currently authorized?

Over the course of the hearing, though, the reason became clear. Bottom line: county jails are full, just like state prisons. Counties can't afford to incarcerate low-level burglars. But neither can the state of Texas. So the locals basically want to pass the buck. Counties aren't willing to raise local taxes to build more jail space, so they want prisoners sent to state jails so they won't have to pay for them. That's the same problem with taking an atomic view, though -- it's all the same taxpayers..

Nor did any speakers who favor penalty increases tell the committee which prisoners should be taken out of the system -- i.e., the types of crimes for which they should LOWER penalties -- in order to incarcerate more vehicle burglars in state jails. Certainly nobody proposed letting out any current prisoners to make room. Indeed, the state's overincarceration crisis was mentioned mainly by proponents in the context of asking that it be ignored. This wasn't a hearing about big picture policy issues.

We live in a narcissistic society, and one of the truisms blogging teaches us is that everybody thinks their story important (in this case, dozens of folks thought so, repetitively, for several hours). These anecdotes don't tell the whole story, though. For every professional burglar who targets apartment complexes, there are probably three young stupid kids who made mistakes, and labeling all of them "felon" without distinction just doesn't make sense. Texas already has labeled 1,941 separate acts as "felonies" -- this would make 1,942 -- and a whopping one in 11 Texans today already has a felony conviction that limits their employment, housing and even volunteer opportunities. Do we really want to expand that population by the number of kids who steal a CD out of a car?