In praise of pretrial-detention algorithms, the 'failure to appear fallacy,' Louisiana ↓ technical revocations, and other stories

Several national items merit Grits readers' attention here during the calm before the 86th Texas Legislature storm.

Debtors-prison reform: Economic populism and the justice system
The New York Times this week published a lengthy, excellent feature on how criminal fines and fees oppress the poor. Good analysis and background.

Best evidence supports use of risk assessments in pretrial release decisions
Some prominent heavyweight corrections researchers responded to criticisms in the press, not to mention by left-wing advocacy groups (I'm talking to you, ACLU of Texas), of risk-assessment algorithms used to aid pretrial detention decisions. One of the authors, Jennifer Skeem, has presented to Texas probation audiences, and is someone whose research Grits has relied on for years. Everyone concerned with the use of risk assessments in pretrial release determination should read this 20-page analysis. They show that the best evidence available - taking into account all the available studies about what works - supports use of risk assessments, which generate better safety outcomes and less unfairness than judges flying by the seat of their pants. The authors document consistent research-based findings that a structured decision making process, in which judges formally take pretrial risk assessments into account, produces the best results. If you care about bail reform, read this. Their analysis more or less coincides with Grits' views, perhaps because mine are to a significant degree influenced by Skeem's scholarship: Racial disparities created by validated risk assessments in pretrial detention decisions (the analysis differs for sentencing, predictive policing, and other risk-assessment uses) are measurably less problematic than disparities and injustices such assessments prevent.

The Failure to Appear Fallacy
A lot goes in to Failure To Appear (FTA) rates, and this extensive article from The Appeal offers one of the the more nuanced looks you'll see on the topic, including a detailed description of how judges in Harris County - most of whom were ousted in the last election cycle - sabotaged bail reform in an effort to artificially drive up FTA rates and use them as a "political football." Excellent background for bail reformers.

Louisiana successfully decreased technical-probation revocations; why can't Texas?
After the Texas Legislature created Intermediate Sanctions Facilities as part of the state's widely lauded 2007 probation reforms, the parole system was able to radically reduce the number of people sent to prison for technical violations. However, the probation system could never accomplish it: half of revoked probationers in Texas were sent away for technical violations, not because they committed a new crime. So I was interested to see the Pew Charitable Trusts researching causes for a big reduction in technical probation violations in Louisiana. The Bayou State was able to reduce the amount of time revoked probationers were incarcerated, reduce the number of revocations for new crimes (read: reduce crime), and save millions of dollars in incarceration costs, Pew found. If they can do it, why can't Texas?

Prisons during shut down
The Marshall Project has the best coverage I've seen of the brutal effects on federal prisons from the government shut down. MORE: From the Washington Post.

Bail injustice worst case
For all of the flaws which may exist in Texas' pretrial-detention system, they're minimal compared to the Philippines, which is the only other nation in the world besides (some states in) the U.S. that uses wealth-based bail to determine pretrial detention. Money quote: “When you are detained in Philippine jails, you are being tortured.”

Takeaways for TX legislators and national #cjreform activists on the #FirstStepAct and bipartisan reform

Grits has been involved in passing bipartisan criminal-justice reforms at the Texas Legislature since 2001, so is excited to see the First Step Act passed in Congress.

There are many lessons to be learned here, but let's quickly highlight a few takeaways for two audiences in particular: national criminal-justice reformers and conservative Texas legislators.

What national #cjreform supporters should take away from the First Step Act:

• Bipartisan reform isn't just some weird thing that happens in red states like Texas. The strategy is portable, and will work in Congress, too.
• Conservatives will support incremental justice reform, in some cases enthusiastically, if they can do so on their own terms without agreeing to a more comprehensive liberal agenda.
• Conservative legislators will respond to conservative messengers. Matching messengers and messages to targets is an important part of bipartisan work: Some folks can only only hear messages from people already in their camp. So cultivate those messengers!
• Politics remains the art of compromise, the art of the possible. Government doesn't always function well, but when something does happen, often everyone leaves the table with half-a-loaf. That's by design, and it's okay. You can always come back. Which brings us to ...
• First steps imply second steps. Every legislator voting "yes" vote on the First Step Act has momentum for their next pro-#cjreform vote, so build on it.

What conservative Texas legislators should take away from the First Step Act:

• Washington mimicked Texas' approach on bipartisan reform: Texas should continue down the same path. Lone Star legislators should start with areas where the two party platforms agree on a #cjreform agenda.
• Conservative constituencies turned up big for the First Step Act, from the Texas Public Policy Foundation to Freedom Works to Prison Fellowship to the American Conservative Union. In 2019, #cjreform is all of a sudden a conservative priority, if in part by default because legislation on other topics cannot move in Washington.
• With Donald Trump's full-throated endorsement of the First Step Act, and with his son-in-law championing it in his administration, conservative Republicans supporting #cjreform are aligning themselves with the president headed into the next election.

Failure to pass First Step Act would be a step backward

The federal First Step Act this week dominated national #cjreform news, with President Donald Trump endorsing the bipartisan #cjreform legislation. But Majority Leader Mitch McConnell appears ready to renege on his promise to hold a vote during the lame-duck session. Here in Texas, John Cornyn is one of the bill sponsors, while our D.C. allies presently consider junior Senator Ted Cruz as "leans no."

Here's a summary of the bill from Families Against Mandatory Minimums, and here's law prof Mark Osler giving a run down on the bill's contents. Learn what the bill is about, then go here to contact Ted Cruz's office to ask him to support the legislation.

Earlier this year, the Perfect-Is-The-Enemy-Of-The-Good Caucus on the Democratic side were complaining that the legislation did not go far enough. But mercifully, those voices have STFU here in the homestretch. (Thank heavens! Grits was really starting to get annoyed at some folks whom I otherwise respect.) Sen. Dick Durbin (D-IL), who has been the best D reform champion in the US Senate, gave an excellent speech this week explaining why Democrats should hold their nose at voting with the President and support bipartisan justice reforms on the table.

Certainly, this bill doesn't go as far as your correspondent might like. But there's an unspoken benefit to passing the legislation beyond its contents. Getting to a vote on reform legislation in Congress provides a template to work from when pursuing future legislation. Without it, most senators won't have to take a stance, and the politics of the issue remains mushy and difficult to assess.

Texas has received much praise for its 2007 probation reforms, which have been hailed as a national model and a precedent for this federal bill. But what's less well known is that earlier reform votes at the Texas Lege in 2001 and 2003 - related to corroborating testimony of drug informants and mandating probation for the first offense on user-level drug-possession charges - provided the vote template upon which advocates built the '07 coalition. The latter couldn't have happened without the former.

In that sense, the First Step legislation is aptly named. Once it passes, other #cjreform legislation may well be possible. But if it fails, momentum will die and it could be years before the opportunity arises again. Failure to close, when the legislation is SO close to its denouement, would be a harsh disappointment and a bitter pill to swallow.

Harris Sheriff's captain providing cover for Balch Springs shooter, the TX bail-reform roller coaster, and other stories

Here are a few odds and ends for Grits readers to chew on headed into the weekend:

Harris Sheriff's captain providing cover for Balch Springs shooter
A Harris County Sheriff's captain testified as an expert witness for the defense in the trial of Roy Oliver, the Balch Springs police officer who shot a fleeing, unarmed 9th grader to death in a nationally publicized episode that got Oliver fired and indicted. One wonders, does this mean we may expect the Harris County Sheriff's office to take a less strict view on when its officers may shoot at fleeing, unarmed suspects? The Dallas News reported that the Harris County Sheriff's captain, Jay Oliver Coons, "reviews use-of-force cases at the sheriff's department." Does Sheriff Ed Gonzalez agree that the shooting of Jordan Edwards was justified and it would be okay if his deputies did the same thing, or has his captain's testimony gone off the reservation? Inquiring minds want to know ...

Bail-reform roller coaster
August saw bail reform efforts take a gut-wrenching roller coaster ride. First, Gov. Greg Abbott joined legislative and judicial reformers in supporting bail reform, suggesting the bill be named after a murdered state trooper.  But then the Fifth Circuit Court of Appeals unexpectedly gutted the order governing Harris County bail policies, reneging on critiques of detention policies that discriminated based on defendants' wealth. Instead, they insisted that such discrimination is okay as long as defendants receive individualized hearings. That relieves some pressure on the Texas Legislature to pass bail reform, but does so just at the moment state leaders appeared to be reaching consensus on what bipartisan reforms might look like. Who knows where the issue goes from here?

Felony record not a bar to council candidacy
The Austin city clerk this week agreed that Lewis Conway, Jr., is eligible to run for office because, despite a quarter-century-old manslaughter conviction for stabbing to death a man who allegedly stole his drug stash. Conway is  now "off paper," having completed his parole requirements and regained his right to vote. The Texas Tribune reported that, "Conway's success Tuesday is unique for one big reason: He's a convicted felon." But "unique" is not the right word because in 2014, Bexar County elected a former drug dealer with a felony conviction as its District Attorney, so the precedent was already set. As with Conway, local officials and opposing candidates declined to challenge Nico Lahood's candidacy in a much higher-stakes race. Grits congratulates Conway on affirming that precedent, and I'm plesased he'll be on the ballot.

Management inattention to crime lab at Austin PD backfiring
Austin PD crime lab's DNA section may remain shuttered for many more years, judging by a report that the city may continue using an outside DNA lab through 2022. Although public debates and the local media have downplayed the culpability of APD managers, the unfortunate truth is that under the previous chief, Art Acevedo, the department largely ignored its civilian functions like crime-scene techs, victim services, and the crime lab. Instead, they focused every extra dollar on expanding the number of and pay going to officers on patrol. Just weeks after Acevedo left to take the reins at Houston PD, the crime lab debacle blew up under his successor's watch. Current Chief Brian Manley was one of Acevedo's commanders and has similarly prioritized budgets for sworn staff over improving the agency's civilian functions. Despite that, the city council could locate no other candidates to even consider; apparently Manley was the only qualified guy they could find. (There's no "Rooney Rule" for police chiefs; after Dallas hired a black woman as chief, for example, there clearly were no other minority candidates anywhere who might be worthy of consideration, hence Austin considered none [/sarcasm].) So I'm not surprised that officials expect the situation to linger on. APD hasn't prioritized its civilian functions in many years and it's hard to view Manley's hiring as anything more or less than an affirmation of the status quo.

DPS suggests closing license centers as long lines loom
As headlines continue about long lines at DPS driver license centers, the agency has suggested closing 87 smaller offices - many of which have only one employee and/or low customer volumes - in order to consolidate resources at the centers with long lines. That could be the right management move, but politically, Grits predicts it will be a non-starter. A few may be closed, but I'd be surprised if the number of closures reached double digits, much less 87. And anyway, closing small facilities won't solve the bigger problems exacerbating long lines at the DPS megacenters, which have more to do with legislative policy than agency-level logistics.

Junk science challenges proliferating
Many so-called "forensic sciences" are really non-scientific, subjective comparisons made by cops, not scientists, argued an editorial at The Legal Intelligencer. That was the reason Texas created a new form of habeas corpus writ - discussed recently in the Texas Tribune in the context of shaken-baby cases - to allow redress when the legal system bases convictions on junk science. The writ is also currently being used to challenge the validity of bite mark evidence as well as blood spatters, a topic Grits delved into in an interview with ProPublica reporter Pam Colloff (read her latest) for the podcast that will be out next week.  RELATED: Top ten junk forensic sciences challenged in Texas.

Cohen doesn't cotton to FIRST-STEP opposition
Check out Right on Crime Director Derek Cohen's rebuttal to U.S. Senator Tom Cotton regarding the latter man's opposition to the FIRST-STEP Act and sentencing reform. Wrote Cohen, "We started Right on Crime in 2010 to advance policies that protect both the taxpayer and their pocketbook, and the outcomes of no government program is above scrutiny. Prisons are a vital contributor to our public safety, but are only one of many tools is our toolbox." In recent days, we've seen President Trump first embrace the bill and then reportedly back off until after the election. From this remove, Grits can't tell who in D.C. is serious about reform or what chances it has in the current political environment. Whatever is the case now could change with the next presidential tweet. But I do know that reformers' opposition to the bill was ill-considered and based on partisan considerations, not #cjreform principles. Passing moderate bipartisan reform is clearly better than doing nothing, which is the alternative.

FIRST-STEP opposition shows why partisanship is the bane of criminal-justice reform

Just Liberty this week will launch a new action alert asking Texas Sen. Ted Cruz to support the federal FIRST-STEP Act, which regrettably puts us at odds with some national reform groups like the ACLU and the Leadership Conference (now headed by our old pal Vanita Gupta, lately of Obama-Administration fame).

Other #cjreformers like Families Against Mandatory Minimums, the #Cut50 campaign, and Right on Crime support the measure.

Decision Time
As Just Liberty's Policy Director, I had to make my own assessment. And from a #cjreform perspective, it's impossible not to conclude that FAMM and #Cut50 are right on this one and ACLU and the Leadership Conference are letting partisanship impede doing what's best for prisoners.

The main criticism of the FIRST-STEP Act is that it doesn't go far enough, failing to embrace sentencing reform measures which would more fundamentally confront federal mass incarceration trends. Here's how a San Antonio Express-News editorial described those complaints:

Progressives are sharply divided on the measure, mostly because of what it doesn’t do. The bill — sponsored by Reps. Hakeem Jeffries, D-N.Y., and Doug Collins, R-Ga., and strongly pushed by President Trump’s son-in-law and adviser, Jared Kushner — does nothing to address the main problem, which is that this nation sends far too many people to prison and keeps them locked up far too long. 

Truly meaningful change would involve sentencing reform, for which there is some bipartisan support in Congress — but not enough to get such legislation through both chambers. It is hard to imagine that Trump, who tries so hard to project a tougher-than-thou image, would sign a bill significantly reducing sentences. And Attorney General Jeff Sessions, who believes in throwing away the key, would have a conniption fit. 

The First Step Act ignores the “front end” of the problem — sentencing — and focuses exclusively on the “back end.” It would provide $50 million a year for five years in new funding for education and rehabilitation programs in federal prisons, encourage inmates to participate in those programs by giving them credits for early release, and allow some prisoners to serve the balance of their sentences in halfway houses or home confinement.

Good > Perfect
So our liberal friends don't oppose the things in the bill so much as they think OTHER things should be in there. In other words, they're allowing the Perfect to become the enemy of the Good. Grits supports sentencing reform, too, and I wish it were included in the bill passed by the House. Those national groups are not wrong to insist that it's needed.

But this is not a sentencing reform bill. OTOH, on the issues it does address, most of them are modest improvements over the status quo.

In Texas, that's always been my threshold for whether to embrace reform. "Is it an improvement over current law?" If yes, don't oppose it unless it harms somebody. By that standard, supporting the FIRST-STEP Act is a no-brainer.

Indeed, thanks to changes in how good time is calculated, there are 4,000 people who would be released immediately if the law is enacted. Without the bill, they stay locked up.

That, to me, is where Grits parts ways with Gupta and Company: I'm not willing to tell an incarcerated person - much less 4,000 of them - that they should spend more time in prison because IMO some bill doesn't go far enough. These liberal critics aren't the ones doing the extra time!

How incrementalism works
Partisans ensconced in D.C. gridlock fail to understand some of the lessons on bipartisanship we've of necessity learned in Texas: Getting folks from both parties to support a modest reform today can help persuade legislators to do more later once they see the public reaction and find that there's no backlash, or at least that it's survivable.

For example, in Texas, former House Corrections Committee Chairman Ray Allen passed legislation in 2003 mandating probation on the first offense for low-level drug possession cases, diverting a few thousand people from Texas prisons. He was challenged in 2004, called "soft on crime" by his chief political opponent, but won anyway. After that, and really, because of that, legislators felt comfortable embracing bolder decarceration reforms in 2005 (vetoed), paving the way to pass the ambitious 2007 probation reforms championed by Sen. John Whitmire and Rep. Jerry Madden. Members needed Chairman Allen's electoral example to see that, if they stuck their necks out, they wouldn't get them cut off! (For more background, David Dagan and Steven Teles described these episodes in their book, Prison Break.)

While there's still far to go, over time this approach has made a significant dent in mass incarceration in Texas, symbolized most prominently by the closure of eight prison units, including four closed during the most recent legislative session.

Similarly, if Congress were to pass the FIRST-STEP Act and Republican legislators were to discover in November that they received credit for its passage instead of blame, that will make them more likely to vote for sentencing reform in the future. That truly would be a "first step." Big ships turn slowly, and the slowest to turn of all vessels are ships of state.

It took decades to build America's carceral state, there aren't going to be any quick, one-bill fixes. And future fixes become less likely if liberals blow up efforts at #cjreform bipartisanship.

Why multi-issue groups are the bane of #cjreform
But maybe the real issue is Democratic partisans who don't want Republicans to get credit for something good while they see those same Republicans on the opposite side on other debates that they care about. To that extent, splits on the left over the FIRST-STEP Act point to another problem that's plagued justice reformers since your correspondent got into the game back in the 1990s: Multi-issue groups will always sell out a #cjreform agenda when it conflicts with other liberal goals, in particular on pro-choice, gay-rights, environmental issues, and increasingly in the Trump era, immigration.

Many Democrats oppose the FIRST-STEP Act simply because they don't want to give President Trump " a win." To me, that's flat-out unpatriotic, no less so than all the Republicans in Congress who considered it their mission in life to see President Obama fail. (It may sound corny, but I want America to succeed, even under President Trump.)

It's also politically inept. Politics is the art of the possible, and while Republicans control Congress and the presidency, this is what's possible. In poker terms, take the chips on the table and live to play another hand.

If Democrats want US policy to go further, win some damn elections. But if this bill was proposed under a Democratic administration and Congress, these same groups would all support it. It's hypocritical and counter-productive to oppose it now.

RELATED: Washington Examiner, "Time for bipartisan deal making on criminal justice reform."

Should decarceration advocates push for federal reforms?

Writing in Vox, John Pfaff dislikes Cory Booker's Reverse Mass Incarceration Act for two principle reasons. First, he thinks it reacts to a misdiagnosis, seeking federal legislation because liberals to his mind wrongly blame the Clinton 1994 Crime Bill for the rise of mass incarceration. Pfaff thinks its role is overstated and that federal legislation can't do much to reduce incarceration in the states. Second, he thinks it will unnecessarily gin up enemies - in particular prison guards and prosecutors.

Grits thinks these concerns are overblown. Yes, the role of the 1994 Crime Bill has been overstated. But Pfaff undersells its importance in galvanizing support for tuff-on-crime legislation in the culture at large, and especially among Democrats, that trickled down to the state level. (In Texas, for example, the push for it helped sell Ann Richards' concurrent billion dollar bond issue she pushed to triple the size of our prison system.) Booker's bill, or perhaps a more bipartisan version, theoretically could do the same for 21st century pols, especially among the GOP, where the Right-on-Crime movement provides a ready vehicle for conservatives who wish to embrace justice reforms.

Second, it's a huge mistake to fantasize that decarceration can be achieved without fighting the institutional opposition like prosecutors, police unions, prison guards, and Chamber-of-Commerce types from rural prison towns. They're going to fight because their interests are threatened. Avoiding the fight is impossible and change can't happen until the fight is won. So Grits sees little sense in putting it off. The thing to do is pick the field of battle with the greatest near-term hope for success and begin slugging it out.

In my own experience, the processes such conflicts generate - the back and forth, the interrogation of claims, the debates over values, the competing demands on politicians, and even the interest-splitting compromises - are in fact how change occurs in a (small-r) republican system: Slowly and incrementally, the same way mass incarceration was created.

But that won't occur unless we start, everyone should start where they are, and since Cory Booker is in the US Senate, to Grits, it's fine if he starts there.

Federal prisoners stranded in Harvey, Harris County inmates released into it

When disasters like Hurricane Harvey strike, inmates in coastal prisons and jails are sitting ducks unless the authorities in control of their fates take action to protect them.

Downtown Houston on the day
jail inmates were summarily released

TruthOut has emails from inmates in a flooded federal prison in Beaumont showing inmates stranded and scared in desperate conditions. And in Houston, the county jail allegedly released prisoners from a drug treatment facility at the height of the flooding without money, clothes, or medication because officials couldn't feed or supervise them.

After this episode, there really won't be any excuse going forward for coastal jails and prison units to have anything but fully operational disaster plans, including privately run units. That should have been the case after inmates were stranded during Hurricanes Katrina (New Orleans) and Ike (Galveston). But now it would be clearly negligent not to do so.

The Texas Department of Criminal Justice appears to have done a good job evacuating inmates in harm's way. But the federal Bureau of Prisons clearly dropped the ball, and the Texas Commission on Jail Standards surely should review policies on releasing inmates into hazardous conditions.

It's a safe bet Harvey won't be the last time these issues come up.

RELATED: Add accountability to rehab, reentry arguments for inmates' access to email.

MORE: According to the Houston Press, federal officials disputed the extent of the flooding reported in Beaumont.

Surging toward Groundhog Day, and other stories

Here are a few items that deserve Grits readers' attention but haven't made it into independent posts:

Pointless 'surge': Waiting for the punchline
DPS' $1.3 million per week border surge IMO is a bad joke. Brandi Grissom must think it's Groundhog Day. How many "surges" have we witnessed in Texas since Operations Linebacker, Wrangler, etc.? What did they solve? And how will this one convince some teenager in Honduras not to begin the march northward fleeing oppression and poverty to come here for a job that Texas businesses want give him? The feds seem to have a more pragmatic response: bringing in emergency judges to process immigration cases. Maybe this would be a good time for the US Senate to fill some of Texas' empty federal judicial posts.

Eat This
A Tyler company admitted no guilt as it entered into a $392,000 settlement with the US Department of Agriculture after meat it sold as pet food wound up being fed to inmates at the federal Bureau of Prisons.

'Pregnant women in Texas county jails deserve better than this'
Horrific. From the Dallas News (June 26), "A federal lawsuit in Wichita Falls shines a spotlight on a dramatic example of how the opportunity for lifesaving medical intervention is often missed in county jails. In this case, a child was tragically lost." See the full, gut wrenching column coauthored by the Texas Jail Project's Diana Claitor and Burke Butler of the Texas Civil Rights Project.  

Arson and false convictions
As evidence that Texas' arson review has had national influence, check out this NBC piece on a Michigan man exonerated in an arson-murder case. It hails Texas as authoring "the most comprehensive overhaul of fire investigation in the nation" and holds up the state fire marshal's review of old cases as a model.

Weather litigation heating up with summer
The Dallas Observer has details from one of the lawsuits over excessive heat at Texas prisons focused on the Hutchins State Jail. Wrote Sky Chadde, "Larry McCollum's death received most of the press. McCollum was a 58-year-old Hutchins inmate -- in for a nonviolent crime -- who suffered a seizure after several 100-degree-plus days in a row. At the hospital, his body temp was 109.8 degrees. He fell into a coma and died six days later, from living in a place with high temperatures and no A/C. Lawyers from the Texas Civil Rights Project sued the Texas Department of Criminal Justice, which runs the state's prison system. That lawsuit is still playing itself out, but now the department has another one on its hands." The story noted at the end that, "Recently, the AP reported that the criminal justice department is hoping to make seven state prisons a little more bearable by using large fans, like those football teams use to cool down on game days."

FBI to TX: Give our informant a PI license
Eric Dexheimer at the Austin Statesman has the story of an FBI informant with impeccable references from his handlers who was nonetheless turned down for a private investigator license because of his criminal history.

Bad analogies and the Fourth Amendment
Here's hopeful assessment from Vox of the import of yesterday's SCOTUS decision that cell phones can't be searched incident to arrest. "The Supreme Court's new attitude is best summarized by a single sentence in the opinion. The government had argued that searching a cell phone is no different from searching other items in a suspect's pocket. That, the court wrote, 'is like saying a ride on horseback is materially indistinguishable from a flight to the moon.'" Much of the debate surrounding the Fourth Amendment in the 21st century hinges on bad analogies, the author argues.

Habeas corpus post-Guantanamo
The Stanford Law Review has a nice little summary of the effectuation of federal habeas corpus and due process rights in recent D.C.-circuit case law for prisoners at Guantanamo Bay.

There are also worthy, recent items at Texas Prison Bidness, Defending People, and The Defense Rests.

Cornyn: Reform federal prisons based on Texas model

Texas' US Sen. John Cornyn this month introduced federal legislation, S. 1783, styled the Federal Prison Reform Act of 2013, that he says is modeled after state-level reforms in Texas. According to his press release on the topic, here's a summary of what the bill would do:

• Requires the Department of Justice to use existing funds to develop and implement recidivism reduction programming (drug rehabilitation, education, skills training, work programs, etc.) for 100% of eligible federal prisoners within 5 years. Ineligible prisoners include violent offenders, sex offenders, terrorists, child abusers, human traffickers, and repeat federal offenders.

• Requires the Attorney General to enter into partnership with non-profit and faith-based organizations to provide many of these programs at little or no cost to the taxpayer.

• Requires the use of existing resources to develop a federal post-conviction risk assessment tool that uses empirical data to classify all federal prisoners as (1) low-risk of recidivism; (2) medium risk of recidivism; or (3) high risk of recidivism, and allow for regular reassessments of each eligible prisoner over time.

• Allows prisoners who are classified as low-risk to earn up to 50% of their remaining sentence in home confinement or a halfway house, with earned time credit accruing at a rate of 30 days for every 30 days the prisoner is successfully completing recidivism reduction programming.

• Allows medium-risk and high-risk prisoners to earn time credits at a rate of 30% and 20% while they are successfully completing recidivism reduction programming, but does not allow them to cash in this credit until the risk assessment tool shows that they are a low-risk of recidivating.

• Reduces the need for new federal prison construction allocation by working to cap and reduce the number of incarcerated offenders by shifting prisoners near the end of their sentence to home confinement.

See the full text here. Haven't read the full thing myself, yet, so Grits may have more to say later on the topic, particularly if the legislation gains traction. Presently, Cornyn has three co-sponsors - Republican Senators Chuck Grassley, Orrin Hatch, and Mike Lee - and the bill has been referred to the Senate Judiciary Committee. Sounds good from the summary, but I'd feel more sanguine about its chances if the bill had bipartisan sponsorship - a key factor in passing Texas' 2007 reforms - and/or there was companion legislation in the House.

Federal prison population growth unsustainable

Via the Urban Institute, check out this graphic demonstrating federal prison population growth over the last three decades:

The federal prison system is almost ten times larger today than in 1980. (Texas prison population increased nearly six-fold over the same period.) The underlying data in the above chart comes from a new Urban Institute report titled, “Stemming the Tide: Strategies to Reduce the Growth and Cut the Cost of the Federal Prison System.” See related testimony from Nancy LaVigne from the Urban Institute's Justice Policy Center at a US Senate Judiciary Committee hearing today, in which she pointed out that, "The high costs of maintaining a growing prisoner population have contributed to the increases in the BOP budget relative to the rest of the DOJ: in FY 2000, BOP took up less than 20 percent of the DOJ budget, but we project that by 2020, it will consume more than 30 percent." While BOP spending remains small compared to, say, federal entitlement programs, the growth rate is still unsustainable, she argued. Two other witnesses (see here and here) attempted to rebut the Urban Institute study, and Grits may have more to say reacting to their comments in a future post.

To a much greater extent, even, than Texas' prisons, federal prison growth has been driven mainly by the drug war. According to testimony (pdf) by Federal Bureau of Prison Director Charles Samuels, Jr.:

The large majority of federal inmates, (177,000 of 219,000) are housed in facilities operated by the Bureau, which have a total rated capacity of just under 130,000 beds. The remaining approximately 42,000 inmates are housed in privately operated prisons and residential reentry centers. Most federal inmates (50 percent) are serving sentences for drug trafficking offenses. The remainder of the population includes inmates convicted of weapons offenses (15 percent), immigration offenses (11 percent), violent offenses (5 percent), fraud and other property offenses (7 percent), and sex offenses (10 percent). The average sentence length for inmates in BOP custody is 9½ years. Approximately 26 percent of the federal in mate population is comprised of non-U.S. citizens.

It's remarkable to notice how different the makeup of state inmates in Texas is compared to federal inmates. By contrast, according to the Texas Department of Criminal Justice's 2012 Statistical Report (pdf), 55.3% of Texas inmates are incarcerated for violent offenses (compared to 5% at the feds), and just 16.7% (compared to 50%) are incarcerated for drug offenses. (The percentage of drug offenders in state jail is higher than full-blown prison: 33% compared to 14.8%; the 16.7% figure includes both.)

The proportion of Texas inmates incarcerated for property/fraud/theft offenses is more than double that in the federal system - 16.1%. Only 1.8% of Texas prisoners are incarcerated for weapons offenses, compared to 15% for the feds.

The average sentence length of inmates on hand in TDCJ in 2012 was higher than the feds - 19.3 years compared to 9.5 years. But that's a bit deceptive because, of those entering Texas prisons (as opposed to "state jails," where the max sentence is 2 years), the average sentence length is 7.9 years, and those leaving Texas prisons on average served just 4.4 years.

The federal system keeps folks in longer because there is no parole, a fact which has generated severe overcrowding. Samuels, Jr. testified that: "System-wide, the Bureau is operating at 36 percent over rated capacity and crowding is of special concern at higher security facilities, with 51 percent crowding at high security facilities and 45 percent at medium security facilities." By contrast, Texas' prisoner numbers recently topped out and have begun to decline, allowing the state to close three prison units in the last two sessions. Added LaVigne, "The BOP anticipates adding over 25,000 beds by 2020, but most of these projects have not yet been approved and would not substantially reduce overcrowding."

Texas may face an overincarceration problem, but things are decidedly worse in the federal system.

Peeking in on the feds: Texas' Western District prosecutors less generous than Southern

I've been meaning to revisit some of the testimony from last week's US Sentencing Commission hearing here in Austin, and thought I'd point out some interesting data from federal probation chiefs here in Texas and some new (to me) data on federal prison overcrowding.

According to written testimony (pdf) from Texas Southern District Probation Chief Becky Burks submitted last week to the US Sentencing Commission, immigration cases make up the overwhelming portion of the district's court docket. She notes that "in FY 2008, the Probation Office completed 6574 presentence investigations and supervised 5470 offenders in the community." Of those, "relative to the primary offense of conviction, Immigration comprised 72.5% of the cases, with drugs coming in second at 18%, and firearms, 2.9%, and fraud, 2.2% virtually tied at a distant third."

Burks testimony also describes the burden put on federal probation departments for immigration cases, pointing out that "Supreme Court and 5th Circuit case law make these presentence investigations some of the most laborious to produce and the sentencings among the most complex."

For reasons that aren't clear to me, there's a wide variation between the two districts regarding how often prosecutors support downward variances from the federal sentencing guidelines. Wrote Burks:

As it pertains to sentencing practices, 57.7% of Texas Southern’s 2008 cases were sentenced within the guideline range. While this was not drastically different from the national rate of 59.4%, it was significantly below the 5th Circuit rate of 70.4%. This perhaps resulted from higher Government sponsored below range sentences, which accounted for 34.8% of the total below range sentences imposed. Non-government sponsored below range sentences totaled 6.5%.

By contrast, according to testimony to the commission (pdf) by Probation Chief Joe Sanchez, in Texas' Western District, 78.7% of cases were sentenced within guideline range, meaning defendants received fewer sentence reductions. The Western District also saw far fewer government-sponsored downward departures, mostly for defendants who provided "substantial assistance" to the prosecution (i.e., for snitching).

What accounts for the 21-point difference between the rates of cases in Texas' Southern and Western districts sentenced within guideline range? I don't know the answer, but it's a striking number, as is the difference between the 5th Circuit's rate of downward departures overall and the national average. Texans, and especially those in the Western District, simply aren't receiving downward departures as often as defendants elsewhere, for reasons at which I could hardly guess. (Perhaps some knowledgeable commenters can shed some light on the question.)

Also noteworthy was testimony (pdf) by federal Bureau of Prisons Director Harley Lappin related to seldom-discussed overcrowding at federal facilities:

Over the past 20 years, the federal inmate population has increased more than 200%, from just under 65,000 to more than 209,000. The number of federal prisons has increased from 64 to 115, and our staff number more than 36,000 today. Over the past few years, we have not been able to build enough new facilities to keep up with the increase in the federal inmate population; tight budgets have also meant that we have not been able to increase our staffing to the level necessary to keep pace with the population growth. This has led to a dramatic increase in the inmate-to-staff ratio in our institutions, and significant crowding.

Our facilities are as crowded today as they have ever been (37% above capacity) and our inmate-to-staff ratio has increased more than 40% over the past decade – today our ratio is nearly 50% higher than that reported by the five largest State Departments of Corrections.

We are forced to double bunk nearly all of our high security inmates, many of whom are aggressive and violent and have various anti-social tendencies, and we are triple bunking nearly half of the remaining inmate population. None of our facilities were designed for triple bunking. With the inmate population expected to continue to increase by 7,000 inmates each year, we do not anticipate a reduction in the level of crowding in the near future.

According to Lappin, "The high levels of crowding and reduced staffing levels have substantially impacted the Bureau’s capacity to provide recidivism-reducing programs." Lappin lamented that what he considers the feds' "most important reentry program," Federal Prison Industries, is "dwindling rather than expanding." It's interesting to hear prison industries, which have come under fire here in Texas, described as the "most important reentry program" by the feds. (That's not how it's viewed by Texas state legislators.!)

Besides FPI, federal inmates who participate in education programs, said Lappin, "are 16% less likely to recidivate as compared to their non-participating peers." He also emphasized that "maintaining family and community ties is very important to inmate reentry."

See other testimony to the US Sentencing Commission via links to written testimony under the names of participants on last week's agenda.

Federal Sentencing Commission to hold regional hearing this week in Austin

Via Sentencing Law and Policy I discover that the US Sentencing Commission will be meeting in Austin this week. Here's the press release announcing the event and an agenda with a list of speakers.

According to the release, "The public and the media are invited to attend the hearing, which will be held at the University of Texas at Austin School of Law, Eidman Courtroom, CCJ Building, 727 East Dean Keeton Street, Austin, TX 78705. On November 19, the hearing will begin at 8:30 a.m. and conclude at 3:00 p.m. On November 20, it will begin at 8:45 a.m. and will conclude at 1:00 p.m."

On Thursday, Dallas DA Craig Watkins will be on a panel discussing "Alternatives to incarceration, reentry, and community impact." Adam Gelb of the Pew Center on the States will be on the same panel - I've read and used his work before but never met Mr. Gelb. Another panel on federal probation consists of the probation directors in Texas' Western and Southern Judicial Districts.

On Friday morning, Judges Edith Jones and Fortunato Benavides from the Fifth Circuit Court of Appeals will offer a "View from the Appellate Bench." Harley Lappin, the director of the Federal Bureau of Prisons, will also speak on Friday.

This blog doesn't closely follow federal sentencing issues, and I've never been to a US Sentencing Commission meeting. (Texas relies on jury sentencing and plea bargains and doesn't have a comparable body.) But if they're going to bring all these bigwigs to Austin and speak about criminal justice issues just a mile or so from my home, I suppose I should attend. :)

DOJ BJS: Private prisons dominated recent prison construction growth but provide fewer services

Thanks to Doc Berman for pointing out the newly released national Census of State and Federal Corrections Facilities from the Bureau of Justice Statistics at the Department of Justice, which provides a number of interesting insights into 21st century prison expansion and practices. The census basically covers the first half of the decade, comparing data between June 30, 2000, and December 30, 2005. Let's run through some highlights. (All quotes are from the report - pdf)

For starters, governments aren't building prisons much any more, but corporations are. "Private correctional facilities (up 151) accounted for nearly all of the increase in the number of adult correctional facilities between June 30, 2000, and December 30, 2005. Most of the growth in private correctional facilities during this period was in facilities under contract to the Federal Bureau of Prisons."

As a result, private facilities have expanded their market share over a very short period of time, DOJ reports, mostly thanks to federal contracts. "From 2000 to 2005, the number of private facilities increased from 16% (264) to 23% (415) of all institutions. About two-thirds of all private facilities were under contract to state authorities and a third were under contract to the Federal Bureau of Prisons."

That said, private facilities tend to be smaller, and while they account for a large percentage of facilities they don't house the same proportion of prisoners. "Inmates housed in private facilities increased from 91,184 in 2000 to 105,451 in 2005. In both years, inmates housed in private facilities made up about 7% of the nation’s average daily prisoner population."

During the first half of this decade, most prison growth came in very small and very large facilities. "Between 2000 and 2005, facilities housing fewer than 500 inmates as an average daily population increased by 86. Facilities housing 500 to 999 inmates was relatively unchanged between 2000 (305) and 2005 (304). Facilities housing 1,000 to 2,499 inmates increased by 57 and the number of facilities housing 2,500 inmates or more rose by 11."

States are substituting minimum and maximum security facilities for medium security ones. "The number of minimum (up 155) and maximum (up 40) security facilities increased between 2000 and 2005. The number of medium-security facilities declined (down 42) during this period."

Confirming my sense that the Bush Administration has been less aggressive than its predecessors in pursuing prison abuse litigation, the census found that, "The number of facilities under court order or consent decree to limit the size of their inmate population declined from 145 in 2000 to 44 in 2005. Facilities under court order or consent decree for specific conditions alsodeclined, from 320 to 218."

Unfortunately, staffing of prisons hasn't kept pace with the growth in inmate numbers. "The overall inmate population in adult correctional facilities operating under state or federal authority increased by 10% between the 2000 and 2005 CSFCF. The number of correctional staff rose by 3% during this period."

Finally, according to these data, private prisons appear to do a poorer job at providing meaningful programming for prisoners than state run facilities. "About 9 in 10 public correctional facilities and about 6 in 10 private correctional facilities offered academic and vocational training programs in 2005."

See the full report (pdf).

Federal prisoners to get limited email access by 2011

Earlier this month, the Texas Department of Criminal Justice decided to join the other 49 US states in allowing most prison inmates regular access to telephones in the face of rampant cell phone smuggling by TDCJ guards. But the federal system is doing even more to reduce contraband flow and connect inmates with their families and approved contacts in the outside world, reported USA Today (Aug. 16): "By the spring of 2011, all 114 U.S. prisons are expected to have e-mail available for inmates."

The program, started several years ago, has reduced the amount of old-fashioned paper mail that can sometimes hide drugs and other contraband. Just as important, officials say, e-mail helps prisoners connect regularly with their families and build skills they can use when they return to the community.

For [inmate Melvin] Garcia, that means learning the computer.

"LET'S JUST SAY THAT MY PREVIOUS EMPLOYMENT DIDN'T REQUIRE IT :o)," he joked in a recent e-mail.

The system inmates use isn't like programs used in most offices and homes. Inmates aren't given Internet access, and all messages are sent in plain text, with no attachments allowed. Potential contacts get an e-mail saying a federal prisoner wants to add them to their contact list and must click a link to receive e-mail, similar to accepting a collect call from a lockup.

Once approved, prisoners can only send messages to those contacts — they can't just type in any address and hit send. And contacts can change their mind at any time and take their name off the prisoner's list. ...

The Federal Bureau of Prisons says the system pays for itself with some of the proceeds from prison commissaries. Inmates also pay 5 cents per minute while composing or reading e-mails.

Security, of course, is a concern. That's why the messages can be screened for keywords that suggest an inmate may be involved in a crime, or read by a corrections officer, just like paper letters. That can create some lag time between when messages are sent and received.

Without analyzing the program specifically, it would be impossible to tell whether inmates could abuse their e-mail privileges, said Bruce Schneier of the security firm BT Counterpane. Coded messages could be sent over e-mail, but that could happen just as easily over the phone, he said.

Guards and contraband smuggling in prisons and jails

I'm not sure I've ever heard of a Rogaine-related smuggling offense before, but a former guard from a federal prison in Beaumont just received a two-year prison sentence after he "accepted money from inmates in exchange for marijuana, MP3 players, Rogaine and tobacco."

Cell phones are a more common and lucrative commodity. The incident reminds me of a recent New York case I noticed in which:

Two correction officers were fired for sneaking booze, cigarettes, marijuana and rolling paper to accused cop-killer Lee Woods. Another officer, a woman, is under suspicion of having sex with Woods and giving him contraband.

But of course, in state prisons the mother of all prison contraband cases is still unraveling at the Terrell unit south of Houston. The Back Gate recently posted these TV news reports on the topic to YouTube:

Low pay contributes to smuggling by staff; an extra $250 for bringing in a cell phone can mean a lot for employees scraping by on $2K or so per month. But there are also policy measures that would make a difference - notably searching staff on their way into the unit.

At the legislative hearing captured in the second YouTube video above, a CO predicted that if surprise searches were implemented at his unit, on any given day 8-10% of guards would turn around and walk away rather than submit to a search. Who knows if that's a correct estimate, but it's a disturbing one. If true, given TDCJ's staffing crisis it almost means the agency can't afford to rigidly enforce anti-contraband laws or some units won't have enough warm bodies left to stay open.

There's no more secure environment than a prison. If smuggling can't be stopped in that setting, no wonder it's such a struggle to keep drugs out of schools!

Deadly riot at federal prison in South Texas could have been prevented with adequate staffing

Was understaffing at a federal prison in South Texas responsible for yesterday's prison riot? It seems likely.

Only 13 guards were on duty to oversee 1,160 inmates at a medium security federal prison in Three Rivers when a riot broke out yesterday, leaving one inmate dead and 22 injured. That's an 89-1 inmate to staff ratio. (See coverage from the Corpus Christi Caller Times.) A union representative said "the incident could have been prevented if the prison was more adequately staffed."

At Texas jails, by contrast, 48-1 is considered minimum staffing, and I've long thought that ratio is too high to ensure guard and inmate safety in every circumstance. At 89-1, when the s%*t hits the fan, guards can do little but run for their lives.

I've been paying attention to chronic understaffing at Texas prisons and jails, and the state's response, but it sounds like the problem may be even worse (and the prisons therefore even more unsafe) at federal facilities, if this absurdly high inmate to staff ratio is typical.

MORE: From the SA Express News blog describing the wounded and injured from the riot coming to San Antonio for medical treatment. The Houston Chronicle coverage also blames staff shortages for the incident. The New York Times' coverage notes that this is the second violent incident resulting in a federal prison lockdown in Texas in three weeks, the earlier one occurring at a facility in Houston.