Pernicious housing rule would worsen homelessness, make Texas less safe

We keep hearing how concerned Governor Greg Abbott has been over homelessness, but a rule proposed at the Texas Department of Housing and Community Affairs (TDHCA) would make matters worse.

TDHCA has suggested forbidding access to supportive housing for two years for anyone convicted of a nonviolent felony, for three years for certain offenses involving guns, retaliation, or obstruction, and imposing lifetime bans for people convicted of sex offenses, any "murder-related offense," sexual assault, or arson. Even a Class A misdemeanor would get a one-year ban.

What's the point of this except to exclude people from supportive housing options who would otherwise end up homeless? Would we be safer if felons, sex offenders, etc., are all desperate and living on the streets, or if they're housed with services and support that give them a chance to turn their lives around?

In a story I'd missed when it came out, the Houston Chronicle reported the agency has no "statistics showing there was a crime problem at TDHCA-backed housing" and does not even track that information. So this is clearly a leap-before-you-look situation.

Grits first wondered if this was proposed to undermine anti-homeless initiatives in the big cities, sabotaging them so the governor could later say they didn't work. Then a rumor reached your correspondent saying the rule may be a favor to a donor who opposes a specific development. In the Chronicle story, TDHCA said they're responding to complaints, but wouldn't say by whom. Who knows where it came from? 

What we do know is that felons leaving TDCJ already struggle mightily to find housing, particularly those with special needs who would most benefit from supportive housing options.

This proposal makes Texas less safe and should be rejected, adamantly, by the TDHCA board.

To communicate with TDHCA about the proposal, email comments to htc.public-comment@tdhca.state.tx.us. Deadline is tomorrow (Friday, Oct. 9) by 5 p.m..

MORE: See related Texas Tribune coverage.

Confronting racism at Austin PD, ↓ TX solitary numbers may be an illusion, driver license suspensions not enhancing collections, Big-D bail reform collapses into confusion, and other stories

Here are a few odd and ends that merit Grits readers' attention:

Racial bias and disparities at Austin PD
A new report from the Austin Police Monitor's office demonstrated that black Austinites are disproportionately affected by police stops, searches, and arrests. The disparities are quite large, but Austin PD doesn't provide the data needed to drill down and discover particular officers engaging in discriminatory practices. The report comes in the wake of an assistant chief stepping down in December after a whistleblower revealed racist texts and emails sent to other departmental brass over many years. The city council ordered a review of internal officer communications in response that may reveal more racist officer communication, which has the police union mad as a wet hen. The Police Monitor's report provides a less personal, more systemic assessment of racism in the department, looking beyond individuals' points of view to the impact of departmental practices. Good for the Austin city council for taking this on.

Austin police chief orders arrests for crimes cops can't prove
In other Austin PD news, Grits finds bizarre Chief Bryan Manley's position that the department will continue to arrest and cite people for marijuana possession after the City Council forbade them from doing the lab testing to prove THC levels were above .3% and the substance could be distinguished from hemp. Isn't this the police chief openly saying he has ordered his officers to arrest people when they cannot prove the elements of the crime? To my attorney readers: What legal mechanisms exist to restrain police who openly choose to make wrongful arrests that prosecutors universally dismiss? IANAL, but it seems to me police don't have authority to arrest when there's no probable cause to believe a crime was committed. And since marijuana and hemp come from the same plant, they're indistinguishable without the test.

It's also worth mentioning, bringing the subject back around to the prior item, that marijuana enforcement generates even higher racial disparities than other Austin PD activities, reported the Austin Chronicle:

Data from APD shows that in 2019, a total of 432 citations were issued for marijuana offenses. Of those, 364 went to Black or Latinx Austinites, while just 64 went to white residents – despite similar levels of marijuana use among all three populations. So stopping enforcement of low-level cannabis offenses (see "Council Unani­mous­ly Votes to End Low-Level Pot Enforcement," Jan. 24) could reduce the disproportionate impact arrests and citations have on Austin's Black and brown residents. 

"It's outrageous for APD to be pointlessly writing these worthless pieces of paper," Emily Gerrick, an attorney with the Texas Fair Defense Project and an architect of the POM resolution, told us on Monday, Jan. 27. "Resources could be much better spent trying to address those types of racial disparities in the first place, such as with anti-implicit-bias training."

Competitive DA primaries in Texas
The Appeal compiled a list of competitive DA primaries in Texas. Harris, Travis, and El Paso counties are the big prizes. See a related spreadsheet.

Revenue collection not enhanced through driver license suspensions
The suspension of drivers licenses for nonpayment of traffic fines through the OmniBase program does not correlate with higher payment rates, found an analysis by Texas Appleseed and the Texas Fair Defense Project. The program "has a profound negative impact on people already struggling financially, driving them into a cycle of debt and poverty by taking away their ability to legally drive." The groups encouraged cities and counties to stop using OmniBase altogether, suggesting payment rates may be unaffected.

↓ Texas ad seg numbers may be an illusion
The Texas Observer's Michael Barajas took a deep dive into solitary confinement issues. Texas' numbers of prisoners in solitary, dubbed "ad seg" in TDCJ parlance, has declined by more than half, according to official figures. But Barajas' reporting raises the possibility that some of that reduction stems from reclassifying prisoners, not changing the conditions they live under:

as the Texas Tribune reported last year, some of TDCJ’s new programs may actually mask the extent to which the state has reformed its solitary confinement practices. Inmates moved out of solitary and into a mental health diversion program still live in conditions that seem indistinguishable from solitary; prisoners continue to be confined in small spaces and have limited time outside their cells. Regardless of these similarities, Texas doesn’t count its participants as being in isolated housing.

Dallas bail reform collapses into confusion
In Dallas, D Magazine has the story of how bail-reform their has collapsed into confusion. Was glad to see the article critique the same, ill-conceived op eds from the Dallas News at which Grits lashed out in this post. Here's  how the author, Shawn Shinneman, summarized the flaws in the DMN editorial board's analysis:

That editorial is inaccurate. It suggests we have true bail reform in Dallas County. We don’t. It insinuates Creuzot’s wish-list reforms are in place. For the most part, they aren’t. It also conflates a violent offender with the type of defendant bail reform is targeted at: poor people who are accused of a nonviolent offense, whose lives are upended because they don’t have money to post bond.

Long-time ex-San-Angelo police chief indicted for bribery

Timothy Ray Vasquez, who was police chief in San Angelo from 2004-2016, has been indicted in federal court for allegedly taking bribes related to the purchase of an $11 million radio system. Most of the alleged bribes were funneled through a wedding band called "Funky Munky" the chief played in on the side.

Reentry travails in Tyler
In The Tyler Loop, Jennifer Toon has an excellent essay on the travails of reentry given limited treatment resources and lack of halfway houses outside of the big population centers.

Economists economisting on crime
See the lineup for the Texas Economics of Crime Workship at Texas A&M, organized by Prof. Jennifer Doleac. As regular readers know, I consider economists' analyses of crime generally flawed and harmful. But thankfully, as in this workshop, most economists analyzing criminal-justice issues aren't utilizing economic principles, they're just doing applied math.

Flawed forensics chronicled
Recent coverage of flawed forensics deserves readers' attention:

• New York Review of Books: Jailed by Bad Science
• GQ: Evidence on Trial: Why the forensic evidence is less reliable than we think
• The Outline: The dangerous shortcomings of forensic science
• Science and Justice (academic): Cognitive Biases in the Peer Review of Bullet and Cartridge Case Comparison Casework: A Field Study

1994 Crime Bill revisionism

Doug Berman says the 1994 Crime Bill wasn't as bad as you think and maybe even did some good, from the vantage point of 20/20 hindsight. But it still "fostered and reinforced tough-on-crime attitudes in Washington and among state and local criminal justice officials that contributed to historic growth in national prison populations." That's the most important takeaway, IMO. These revisionist analyses are fine, but here's the thing: Federal crimes are a small part of the system, so the biggest impact of the 1994 Crime Bill was political: It galvanized bipartisan support for mass incarceration that led to so-called liberal Democrats running political ads like this one:

Reasonably Suspicious, June 2019 episode: 2019 #txlege roundup, Dallas cops' racist Facebook posts, and are 'progressive prosecutors' really a thing?

Here's the June 2019 episode of Just Liberty's Reasonably Suspicious podcast:

In this month's episode:

Top Stories

• Dallas cops' racist Facebook posts
• Texas Legislature a killing field for reform legislation

Fill in the Blank

• Texas Supreme Court: DAs can order prosecutors to violate constitutional rights
• Bail-reform died, and that's a good thing
• Should Texas prisoners all become plumbers?

Discussion: Are progressive prosecutors really a thing?

The Last Hurrah

• Red-light cameras abolished, will debts be erased?
• Colorado, Oklahoma surpassing Texas on #cjreform
• Evidence left behind after Houston SWAT raid

Find a transcript below the jump.

Fixing longstanding criminal-justice problems in a black-ink budget year

Comptroller Glenn Hegar gave the Texas Legislature some good news with a black-ink budget projection for the coming biennium, suggesting they may have more than $9 billion more to spend than in 2017. Some of that will go for Hurricane Harvey costs (thought the Rainy Day fund should also contribute to that), some will get gobbled up with increased costs for entitlement programs, and any school finance fix will almost certainly consume the lion's share of the rest.

But it's not inconceivable that the Texas Legislature could use some of that money to solve ongoing problems in the justice system. What might that look like? Here are some ideas Grits brainstormed; let me know in the comments if you think of others:

Eliminate the Driver Responsibility Surcharge: $300 million

Both Texas political parties and every politician under the Pink Dome you ask wishes the Driver Responsibility Surcharge weren't the law. But the program brings in roughly $300 million per year - half goes to the General Revenue fund, half goes to hospital trauma centers - and politically, the surcharge can't be repealed unless the state comes up with the money.

Raise the Age: $45 million

When the 85th Texas Legislature ended, Texas was one of seven states that prosecuted 17 year olds as adults. Today we're one of only four. There's a decent chance that, if the Lege doesn't change the law this year, we'll be the only one when the 87th Legislature convenes in 2021. The Legislative Budget Board estimated making the shift would cost $45 million during the first biennium of implementation, and $70 million per biennium after that, to send youth through juvenile corrections systems instead of the adult side. (There's some evidence these costs are overstated, under-estimating related savings.) The House has passed RTA legislation two sessions in a row, but senators and the Lt. Governor are unlikely to bite without a dedicated allocation in the budget.

Boost reentry funds: $30 million

Increasing funds to prisoners leaving TDCJ from $100 to $300 would cost ~$13 million per year, $26 million per biennium. Tack on another $4 million per biennium to make sure they have driver's licenses or ID cards when they hit the streets, and mandate that DPS issue them based on information provide by TDCJ. Neither of these were in the agency's appropriations request, but they should have been.

Crime labs: $8-10 million

The Legislature either needs to boost funding for crime labs by perhaps $8-10 million per biennium or start charging for services. The DPS LAR only asked for $5.8 million that was taken away from the agency in user fees. But that amount was insufficient to solve the months-long backlogs presently being experienced. Legislators should find out what would be needed to reduce backlogs to a reasonable period then fund DPS crime labs at THAT level. Or, alternatively, Grits supported the user fees the Governor rescinded in the interim and think they're a reasonable way to fund this service.

Prison costs soaring: Cuts needed

TDCJ's appropriations request asked for an increase of more than $700 million beyond what's already a $7.3 billion-with-a-b budget. The LAR suggests the agency needs $247 million over the next biennium to maintain current (low, perhaps even unconstitutional) standards for provision of inmate health care, and another $32 million for probationer treatment funds. They also asked for $156 million for staff raises and $146 million in facility repairs. These are not unreasonable requests, but Legislature should enact further decarceration reforms and close understaffed, rural prison units and those requiring costly repairs to pay for those requests and reduce upward cost pressures.

Indigent defense: Est. $10 million

Counties want the state to pay 100% of indigent defense costs. For reasons Grits has articulated previously, that's a specious and self-interested position that flies in the face of the traditional state-county roles in the justice system. That said, the state would benefit from additional, targeted investments in the indigent-defense system. They should prioritize Texas Indigent Defense Commission grants for public-defender officers, which are the most effective and efficient way to deliver legal services where they're needed most. They should finance a capital defender office to handle indigent death penalty cases. ($1 million per biennium.) They should boost funding for the Office of Capital and Forensic Writs. And they should take Judge Elsa Alcala's advice to fund counsel for indigent defendants filing habeas corpus writs related to ineffective assistance of counsel. Obviously, public-defender grants could be of any size, but $10 million added over the biennium to these priorities would make a big difference.

I didn't include an estimate for upgrades to mental-health services because a) I have no idea how to evaluate costs or need, and b) my sense is the state would be better off if these services were primarily utilized outside the justice system, breaking from past practices. But that's certainly another area in need of investment. And there are probably specific investments to reduce competency restoration waits and to better meet the mental-health needs of incarcerated people that deserved to make this list. The Lege could boost state investments well into the nine-figure range and it still wouldn't be enough.

Has Texas fixed the death penalty?, and other notable Texan commentary on the justice system

A few items, while I have you:

Views of the system from the perspective of the punished
These recent opinion pieces from Texans with experience on the wrong side of the justice system merit Grits' readers attention:

• Beverly Harrison, The Marshall Project, "A Decades Old Conviction Cost Me My Post-Retirement Job"
• Jayson Hawkins, The Marshall Project/Vice, "Sentenced to Life in Prison: And a Job Making Furniture"
• Jorge Renaud, Texas Observer, "The Road to Huntsville"

Discussing drug abuse and families
Meanwhile, with tens of thousands of drug overdose deaths making national headlines, Texans Care for Children this fall in Austin will launch an interesting-looking three-part discussion series on drug abuse, families, and public policy. For state-level policy folk in Texas, it's a good time to be thinking about this sort of big picture analysis more than a year out from the next legislative session. Between Gov. Abbott vetoing Good Samaritan legislation in 2015 - and the Lege declining once again in 2017 to pay for expanded treatment services through reduced incarceration of drug users - it's pretty clear most Texas pols don't yet feel comfortable addressing drug abuse through any but a tough-on-crime lens. Advocates will need new strategies, alliances and messages to get much further. 

Is Texas on the way to fixing its death penalty?

Finally, Pat Metze, a Texas Tech law prof, looked at criticism of Texas' death penalty system in a recent law review article and thinks the Legislature is on its way to solving the problem!! As luck would have it, your correspondent worked on many of the initiatives he's lauding - mostly innocence-type work - which he frames as responses to concerns raised in a 2013 American Bar Association report that was critical of several aspects of Texas' capital-punishment system.

But the Legislature didn't view its innocence work through a capital frame, and it's at best a stretch to attribute anything they did as a response to critics of capital punishment. By contrast, most of those innocence reforms could only be passed because they weren't framed as specifically affecting capital cases.

For the most prominent example, the Texas state fire marshal ultimately was happy to correct erroneous arson science and conduct a comprehensive review of disputed cases. But initially, debates over arson science were framed around the case of Todd Willingham, who was executed based on flawed arson testimony in the face of his claims of innocence. The resulting culture-war brouhaha nearly caused then-Gov. Rick Perry to disband the Texas Forensic Science Commission, the FSC's general counsel revealed to a recent national gathering. That pattern has been consistent - reforms can often happen in Texas if they're not about the death penalty or other hot-button culture-war topics - which is why it's odd to portray Texas as acting specifically to correct flaws in the capital punishment system.

Given that the US Supreme Court has taken to bench slapping the Lone Star State two or three times per year on death-penalty matters (e.g., Moore, Buck, etc.), the perspective Prof. Metze offers here definitely qualifies as a revisionist view. A capital-attorney friend who'd seen Metze's article told me it made her "blood boil."

In that light, I teasingly asked Grits' contributing writer Jennifer Laurin, one of the authors of the 2013 ABA report, whether this means "Mission Accomplished!" She responded, "The short answer is that Texas has made big strides on innocence reform, and continues not to touch anything that redounds to the exclusive benefit of capital defendants. And actually I think the analysis in the article bears that out." More on this later, for sure, but I wanted to flag the link.

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

Grits has long believed that there's little big-picture risk and much benefit from the federal system of allowing prison inmates limited access to monitored email services. At first, this view stemmed mainly from a desire to let inmates stay in touch with their loved ones, which helps facilitate both rehabilitation and successful reentry. But Hurricane Harvey shows that prisoners' email can also serve as an accountability mechanism by giving voice to eyes and ears inside the prison walls.

State prisoners in harms way were evacuated during the recent floods (no clear, comprehensive picture yet of what happened in county jails), but federal prisoners apparently were not, including several privately operated facilities and a federal prison in Beaumont.

Regarding the latter, the federal Bureau of Prisons told the Houston Chronicle that "although the facility's water source was compromised and had intermittent power, it was 'adequately maintained with generator backup power when needed. There is an adequate food and water supply for both inmates and staff.'" But the Chronicle obtained emails from prisoners family members which told a different story. One described:

a scene where a fellow inmate passed out Thursday night because of malnutrition; inmates haven't had a warm meal in more than five days, he said. Because of the water shortage, four portable toilets were brought in to service the man's building. No chemicals were placed in the toilets, which have already been "topped off" with waste, the man said. 

"Save me Jesus," the man said in an email. "I never thought nothing like this would happen in prison."

From the family member who shared the email: "Animals are treated better then those men. They evacuated all those animals and made sure they were safe, why can't they make sure those men in those units are safe, fed, healthy with clean clothes and enough amount of water? They are people too." The 

If this prisoner's account is accurate and complete, then federal inmates in Beaumont experienced nothing like the horrors that went on in New Orleans with inmates during Katrina. But the rosy picture portrayed by the feds wasn't entirely true. And without prisoner access to email, there would be no credible source to dispute inaccurate government claims.

Sometimes the government misrepresents reality to offer only a self-interested perspective, and the closed nature of prisons makes them especially good at concealing their problems from the outside world. Providing electronic communications access to prisoners can add first-person narratives to the mix to help inform those on the outside what goes on inside.

Texas inmates can pay to have incoming emails printed out and given to them, but cannot send outgoing email.

So, we may add "holding government accountable" to "facilitates rehabilitation" and "improves reentry prospects" among the best argument for providing inmates limited access to monitored email, as has long been successfully accomplished in the well-established federal system.

Odds and ends on a rain-drenched weekend

Here are a few odds and ends to keep Grits readers occupied on a rainy weekend:

Public Safety Commission to decide on JL petition in October
Here's an update on Just Liberty's petition to DPS for rulemaking on Class C misdemeanor arrests. The Houston Chronicle also had coverage. More than 5,100 Texans have sent emails to DPS Director Steve McCraw urging support for this proposal. Go here to join them.

DA: Police must improve before I'll work with them
The Aransas County Attorney won't accept more cases from the Rockville PD until its officers are better trained about deliberately withholding evidence. Good for her! That's a new one. "According to prosecutors, the Rockville officers needs to demonstrate a commitment to truthful reporting and to correcting problematic officer behavior."

Pew: Ban the box increases discrimination against black folk
One of our contributing writers, Amanda Woog, was a big supporter of ban-the-box proposals in Austin and elsewhere, but Grits personally remained more skeptical. This commentary from the Pew Charitable Trusts explains why: the policy heightens discrimination against black people, whether or not they have a criminal record, while mostly white folks benefit. Martin Luther King, Jr. looked forward to a day when people are judged not by the color of their skin but the content of their character. BTB legislation asks employers to overlook evidence of people's character (past criminal acts), leaving them only the color of the applicant's skin as a marker for such concerns. The result is a worsened pattern of discrimination, according to the best available employment studies on the topic.

On the limits of legalizing running over protesters
The Texas state rep who filed a bill limiting criminal and civil liability for drivers who run over protesters wants to distinguish his bill from what happened in Charlottesville. His legislation would not protect an intentional murder, he insisted. But in truth, the bill was a political jab at liberal protesters and, whether the specifics would apply to the driver in Virginia, the intent was unquestionably to send a message to protesters blocking streets that they deserve to die and the government shouldn't protect them or care about their fate. Walking that back in the face of an actual such incident is understandable, but Rep. Pat Fallon doth protest too much.

Greg Kelley exonerated
In the end, Greg Kelley not only had to battle the government, which had falsely convicted him of sexually assaulting a 4-year old based on a shoddy investigation by Cedar Park PD, but his own trial attorney intervening in his case against his interests. Regardless, that lawyer was found ineffective and Kelley has been freed - prosecutors now say the evidence points to an alternative suspect. As an aside, Kelley was released thanks to a 2003 statute carried by Sen. John Whitmire to allow the Tulia drug sting defendants to get out on bail while they waited for their habeas corpus writs to clear the Court of Criminal Appeals. When that passed, we thought it would for the most part only affect those Tulia defendants, but it's become a prominent and important feature of many modern, Texas exonerations.

Prison evacuations
Several thousand TDCJ inmates housed in units along the Brazos River were evacuated because of flooding, something which is becoming more or less an annual event. I haven't seen significant reporting on what happened with inmates in county jails who were housed in the hurricane's path.

Bail industry ramping up against reforms
The bail reform lawsuit in Harris County and bail-reform legislation in New Jersey are the two biggest, bleeding-edge flashpoints for the fight to reduce poverty-based incarceration. In both instances, the bail industry has emerged as a powerful and well-funded, if increasingly isolated, belligerent. They're going to try to Willie-Horton these reforms to death, so it will be more important than ever that advocates continue making the public safety case for bail reform. People who want fewer murders should be on the reformers' side.

Violent crime limits economic prospects
Check out an intriguing story by CityLab about new research showing that living around violent crime limits children's economic prospects.

Time to test income and reentry
Providing an income to ex-offenders would reduce recidivism. The barriers to testing such a strategy on a broader scale are political, but as a practical matter, " It is past time that a government or nonprofit combined a minimally conditional cash transfer with traditional reentry interventions and hire an evaluator to assess the experiment’s impact. While a man exiting prison today might receive job training and see a clinician for mental health needs, an additional cash transfer could enable him to secure a place to live, a mass transit fare, and groceries for his family. Cash—or a restricted, EBT-styled debit card—would provide for immediate needs and ease the stressful reentry process."

Previewing Texas Lege hearings on #CJReform next week

Next Monday and Tuesday will be full days at the capitol for criminal-justice reform topics, with three different committees holding hearings relevant to the subjects covered on this blog. The Legislative Reference Library helpfully compiled these background resources regarding the interim charges those panels will consider:

House Committee on Criminal Jurisprudence (May 16) 

Charge: Asset forfeiture

• SCOTUS Ruling Requires Relook at State Asset Forfeiture Laws, National Conference of State Legislatures, April 1, 2016
• Policing for Profit: The Abuse of Civil Asset Forfeiture, 2nd Edition, Institute for Justice, November 2015
• Civil Asset Forfeiture: Good Intentions Gone Awry and the Need for Reform, Heritage Foundation, April 20, 2015
• New Bill Would End Policing for Profit in New Mexico (HB560), American Civil Liberties Union, February 19, 2015
• Audit of the Assets Forfeiture Fund and Seized Asset Deposit Fund Annual Financial Statements Fiscal Year 2014, Office of the Inspector General, U.S. Department of Justice, January 2015
• FY2015 Asset Forfeiture Fund Reports to Congress, U.S. Department of Justice, 2015
• Asset Forfeiture in Texas: DPS and County Interactions, Office of Court Administration, December 2014
• "Reverse Robin Hood: The Tale of How Texas Law Enforcement Has Used Civil Asset Forfeiture to Take From Property Owners and Pad the Pockets of Local Government – the Righteous Hunt for Reform is On," 46 Texas Tech Law Review 1169 (Summer 2014)
• Taking Contraband Without Taking Our Liberties: Civil Asset Forfeiture Reform in Texas, Texas Public Policy Foundation, March 2014

House Committees on Corrections and Criminal Jurisprudence (Joint Hearing, May 17) 

Charge: Probation & parole - fees and revocations

• Resource Guide: Reforming the Assessment and Enforcement of Fines and Fees, United States Department of Justice, Office of Justice Programs, March 2016
• Probation Revocation and Its Causes: Profiles of State and Local Jurisdictions: Wharton and Matagorda Counties, Texas and Bell  County, Texas, University of Minnesota Law School, Robina Institute of Criminal Law and Criminal Justice, 2016
• Statewide Criminal and Juvenile Justice Recidivism and Revocation Rates, Legislative Budget Board, February 2015
• Examining Racial and Ethnic Disparities in Probation Revocation: Summary Findings and Implications from a Multisite Study (Includes Dallas County, Texas), Urban Institute, April 2014
• Cutting Edge Corrections: Using Technology to Improve Community Supervision in Texas, Texas Public Policy Foundation, April 2014
• Profiting From Probation: America's "Offender-Funded" Probation Industry, Human Rights Watch, February 2014
• Profiles in Probation Revocation: Examining the Legal Framework in 21 States, University of Minnesota Law School, Robina Institute of Criminal Law and Criminal Justice, 2014
• Safer, Smarter, and More Cost-Efficient Approaches to Reducing Crime in Texas, Texas Criminal Justice Coalition, February 2013
• A Framework to Improve How Fines, Fees, Restitution, and Child Support Are Assessed and Collected from People Convicted of Crimes, Council of State Governments Justice Center, Texas Office of Court Administration, March 2, 2009

Senate Committee on Criminal Justice  (May 17)

Charge 3: Reentry programs provided by TDCJ and the Windham School, including inmates in administrative segregation; Certified Peer Support Services; Darrington Seminary Program   

• Attorney General Lynch Releases Roadmap to Reentry: The Justice Department's Vision to Reduce Recidivism through Federal Reentry Reforms, U.S. Attorney General Loretta E. Lynch, April 25, 2016
• "States Examine Policies, Conditions for Solitary Confinement in Prisons," Interim News, House Research Organization, February 17, 2016
• "Darrington Seminary Graduates First Class of Ministers," Criminal Justice Connections, Texas Department of Criminal Justice, May/June 2015
• Statewide Criminal and Juvenile Justice Recidivism and Revocation Rates, Legislative Budget Board, February 2015
• Offender Reentry: Correctional Statistics, Reintegration into the Community, and Recidivism, Congressional Research Service, January 12, 2015
• "Solitary Confinement, Public Safety, and Recidivism," 47 University of Michigan Journal of Law Reform  495 (Winter 2014)
• Texas Department of Criminal Justice, Correctional Managed Health Care Committee, Windham School District, Board of Pardons and Paroles: Final Report with Legislative Action (Issue 2 - Reentry strategies), Sunset Advisory Commission, July 2013
• Interim Report to the 84th Legislature (Charge 1 - Review correctional facilities and procedures, reentry & parole), House Committee on Corrections, January 2015
• Reentry and Integration Division (Reentry resource guide, reentry articles and reports), Rehabilitation Programs Division, Peer Recovery Support Services, Texas Department of Criminal Justice

Charge 4: Pretrial diversion and treatment programs   

• Overincarceration of People with Mental Illness: Pretrial Diversion Across the Country and the Next Steps for Texas to Improve its Efforts and Increase Utilization, Texas Public Policy Foundation, June 2015
• Pretrial Diversion, National Conference of State Legislatures, May 13, 2015
• Smart Justice, Initiative Resources, Jail Diversion, National Association of Counties

Charge 5: Dissemination of bulk criminal records   

• Fourteenth Report Examining Reporting Compliance to the Texas Computerized Criminal History System, Texas Department of Public Safety, January 2016
• Survey of State Criminal History Information Systems, 2014, U.S. Department of Justice, Bureau of Justice Statistics, December 2015
• Interim Report to the 84th Legislature (Charge 3 - Sale of criminal histories), House Committee on Criminal Jurisprudence, January 2015
• Criminal Records in the Digital Age: A Review of Current Practices and Recommendations for Reform in Texas, William Wayne Justice Center for Public Interest Law, The University of Texas School of Law, March 2013
• Broken Records: How Errors by Criminal Background Checking Companies Harm Workers and Businesses (Part IV/C, Bulk dissemination of records and state regulation of bulk dissemination), National Consumer Law Center, April 2012
• Report of the National Task Force on the Commercial Sale of Criminal Justice Record Information, SEARCH, The National Consortium for Justice Information and Statistics, 2005
• Interim Report, 77th Legislature: Charge Three (Criminal records), Senate Committee on Criminal Justice, September 2000

Charge 6: Costs for family members to maintain contact with incarcerated family members    

• Screening Out Family Time: The For-Profit Video Visitation Industry in Prisons and Jails, Prison Policy Initiative, January 2015
• Video Visiting in Corrections: Benefits, Limitations, and Implementation Considerations, United States Department of Justice, National Institute of Corrections, December 2014
• Video Visitation: How Private Companies Push For Visits By Video and Families Pay the Price, Grassroots Leadership and Texas Criminal Justice Coalition, October 2014
• Study of the TDCJ Offender Visitation Policies, Texas Department of Criminal Justice, August 2014
• Please Deposit All of Your Money: Kickbacks, Rates, and Hidden Fees in the Jail Phone Industry, Prison Policy Initiative, May 2013
• "Prison Visitation Policies: A Fifty-State Survey," 32 Yale Law & Policy Review 149 (2013)
• Children of Incarcerated Parents, National Conference of State Legislatures, March 2009

Ban on surrogate social media for inmates a bad idea on many levels

Leave it to TDCJ to do exactly the wrong thing on inmate social media accounts. The Texas Tribune reported today that:

Texas prison inmates shouldn't be allowed to have active social media accounts, even if friends or family on the outside actually run them, the Texas Department of Criminal Justice has decided.

Earlier this month, the department updated its criminal handbook to prohibit prisoners from having personal pages on Facebook, Twitter or Instagram run in their name by others. When pages violating the policy are discovered, the department plans to report the violations to the appropriate social network.

"What really prompted the rule was that social media companies now require some sort of specific rule in place that's going to prohibit offenders from maintaining their social media accounts," said department spokesman Jason Clark. "I can tell you increasingly it has become more difficult to ask those companies to take it down. They would come back to us and say, 'You don't have a specific policy that says they can't have it.'"

But the new rule is eliciting free-speech concerns from civil liberties groups and raising questions about how friends or family can advocate for inmates.

Besides the fact that the new policy will almost certainly prove impossible to enforce, and that it was enacted without legislative authorization or even soliciting stakeholder input, this decision was wrongheaded on multiple levels.

Invites First Amendment kerfuffle
First, it invites litigation. It almost feels like they're trying to pick a legal fight. TDCJ just had to change their policy banning beards for Muslim prisoners because of a recent Supreme Court ruling, so we know SCOTUS thinks inmates don't comprehensively lose their First Amendment rights. And in this case, the rights involved aren't limited to the inmate.

Wayne Krause Yang, an attorney for the Texas Civil Rights Project, suggested "the prison system's reach exceeds its legal grasp" with this rule, reported the Trib. "Typically, prisons control the things inside the prisons. they don't traditionally get to pass prison policies that extend far beyond the bars, and it seems like that's what they're trying to do here," he said. "Those types of policies have a name – they're called laws. They should be considered by the representatives of the people, too, because this policy doesn't just affect the people behind the bars."

IANAL, much less a First Amendment expert. But it's not hard to imagine that maintaining a website in the name of another person, with their permission, is protected speech. In February a district judge ruled Texas' online impersonation statute - outlawing the use of another person's name without their permission - is unconstitutional. How much more protected might the courts consider these consensual arrangements?

Incarceration affects more people than just the person incarcerated and those other folks have free speech rights. TDCJ can't by rule take those away. And it raises serious constitutional concerns to threaten to punish an inmate if someone in the free world exercises their right to free speech by posting excerpts from inmate communications on social media.

Grits expects this to be litigated nearly instantly. I have no inside knowledge, but there are too many examples of inmates' social media sites being maintained by friends or loved ones for this not to be quickly and aggressively challenged, if I had to guess.

Misses reintegration opportunity: Should encourage inmates to connect to family, friends
Beyond civil libertarian concerns, though, TDCJ's ham-handed policy misses an opportunity for rehabilitation and reintegration of offenders into the community.

One often hears the estimate that Texas prisons incarcerate around 150,000 inmates, give or take, but that number is not static. Texas releases more than 70,000 prisoners per year, with local law enforcement sending them a roughly like amount to fill the beds they're emptying. That enormous number remained steady over the prior decade, even as crime dramatically declined, for reasons this blog has frequently discussed..

Most offenders aren't in prison that long and when they get out, having retained connections to friends and family facilitates rehabilitation. Average time served for people leaving TDCJ in 2014 was 2.8 years (0.8 years for those in state jails; 4.2 years for those in regular prison units). And they have to keep releasing that many because, despite the crime decline, county prosecutors keep convicting as many or more people of felony offenses than ever, boosting the ratio of convictions-per-arrest in ways that John Pfaff has shown are part of a national trend.

So the typical offender headed to TDCJ will get out four years hence. If they return having no connection to the folks most likely to help them succeed (TDCJ only gives them $100 and a bus ticket when they get out), how is that helping anybody?

These days, people stay connected to one another over distance through the internet, to which Texas inmates don't have access. To me, the solution here is simple and the opposite of what TDCJ has suggested: Allow inmates limited, regulated internet access and the ability to maintain social media accounts. Establish rules making them private except for approved contacts and monitor (by algorithm and, upon suspicion, by staff) and regulate the content of interactions. Give TDCJ back-end access, a kill switch if inmates don't follow the rules, and give inmates an appeals process if TDCJ abuses its authority.

Recently, following up on last year's coverage on Vice and our pal Maurice Chammah's good work for the Marshall Project, CBS' 60 Minutes had a feature on German prisons. The recurring mantra in that piece was that the overarching goal of Deutchland prisons - beyond retribution or incapacitation - was "being reintegrated into a normal life" as a rehabilitated individual. Here's an exchange between the 60 Minutes correspondent and a German prison official:

Joerg Jesse: The real goal is reintegration into society, train them to find a different way to handle their situation outside, life without further crimes, life without creating new victims, things like that.

Bill Whitaker: Where does punishment come in?

Joerg Jesse: The incarceration, the imprisonment itself is punishment. The loss of freedom, that's it.

Bill Whitaker: I think Americans think crime and punishment. You say punishment is not even part of the goal of the German prison.

Joerg Jesse: No.

Bill Whitaker: At all?

Joerg Jesse: Not at all.

Now, I'm not going to suggest for a moment Texas should model its prisons on Germany. We're about as far away from that as Grits is from a hiking route to Berlin. But would it kill us to pay homage to that "reintegration" goal where it can be done in a reasonable, secure fashion? And must prisons be the ONLY institution in society utterly unaffected by the advent of 21st century technology? Are Texans really so unimaginative that the only thing officials can think to do with the new social media phenomenon is close their eyes and wish it would go away?

We're missing an opportunity here to allow inmates to maintain greater connections to the outside world, connections they're going to need to succeed when they get out. Without them, there's a greater likelihood that, alienated and isolated, they fall back into a life of criminality after their incarceration ends.

19th century thinking bad for 21st century security

Let's be frank. Despite Sen. John Whitmire declaring a "zero tolerance" policy on contraband cell phones in Texas prisons, they're still smuggled in fairly routinely and inmates find ways to rent them if they want them. So right now inmates with sufficient resources can get online, create an account, and say or do whatever they want. Happens all the time.

If motivated inmates can access social media, anyway, then Lyndon Johnson's famous quote about J. Edgar Hoover comes to mind: "It's probably better to have him inside the tent pissing out than outside the tent pissing in." Having been unsuccessful at banning internet access, why not allow it, regulate it, and use it for public-spirited goals instead of relegating it to the black market?

Wouldn't it be a better approach if prison units all had a computer lab where inmates could a) learn skills with which they might support themselves in modern service economy and which b) allowed inmates to have email and social media accounts through which the agency could monitor and regulate their content and connections? If TDCJ allowed inmates email and basic social media access - say a Facebook account - and imposed similar content rules to what it does on outgoing mail, most offenders would just use that service and the market for contraband phones might just dry up. Federal prisons allow inmates limited email access, which is a start. but social media is how a lot of people stay connected, particularly among families.

Heck, one could see cell phones with limited access - the way parents can control contents for kids - that inmates could check out or keep in their cell. Keystroke logging could keep track of how it's used. And restricting access would become a probably-very-effective behavior management tool. (Long-time readers may recall Grits has been calling for some version of this change since at least 2011.)

If phones or computers are being used for criminality, harassing victims, etc., this way you know about them and can easily secure evidence. If they're plotting crimes or harassing victims on a contraband phone, what can you really do? Anyway, TDCJ can't know comprehensively who has a social media presence out in the world, especially if they use pseudonyms. So it's hard to stop that behavior on a contraband phone unless someone informs on them. If inmates are communicating using the agency's tech, by contrast, those sorts of things are a lot easier to monitor.

* * *

Bottom line, TDCJ treats inmate connectivity as something to fear and banish, but in cyberspace as with visits, letters, and phone calls, contact with the outside world is something prisons must manage. Positive communications that support goals of reintegration and maintenance of healthy relationships should be encouraged while negative interactions must be identified and stopped. TDCJ may have justified its new social media policy based on security. But by promoting greater demand for contraband and eschewing avenues for monitoring and regulating social media access, not to mention trampling on the free speech rights of free-world folk in probably-unconstitutional ways, in the medium to long run my guess is that this decision caused more problems than it solved.

MORE: From Maurice Chammah at the Marshall Project.

Susie Bannon with the Second Chance Democrats on Austin's Fair Chance Hiring Ordinance

Last week, I sat down with Susie Bannon with the Second Chance Democrats to discuss the recent passage of Austin's Fair Chance Hiring Ordinance. (See my earlier coverage of the ordinance.) You can listen to the podcast here:



Or find a transcript of the full interview below the jump.

Prosecutor elections, the limits of reasonable suspicion, and other stories

If only to clear my browser tabs, here are a few odds and ends that may interest Grits readers:

TX prosecutor election outcomes
By TDCAA's calculations, there will be at least 20 new elected prosecutors across Texas by the time the 2016 election season ends. See details here.

Dallas cops still can't ticket for marijuana
Despite urging from the county, which must pay to jail pot smokers arrested by Dallas PD, the Dallas City Council declined to allow its officers to issue citations instead of making arrests for low-level marijuana possession. The vote was 10-5. That sounds like a dandy issue to campaign on in a local election, don't you think? What a waste of officers' time and county jail resources!

Austin extends "ban the box" to private sector
The Austin City Council made it easier for ex-offenders to get a job, requiring larger employers to ban-the-box. I've been grumpy at them lately on non-criminal justice topics, but must give credit where it's due: This was an important and encouraging step. Here's coverage from KUT. Reported the Statesman, "The Austin City Council voted 8-2 Thursday night to pass the “fair chance hiring” ordinance championed by Council Member Greg Casar, which prevents companies from asking applicants to check a box on a job application if they have a criminal history. ... The ordinance applies to employers with at least 15 workers." See Amanda Woog's writeup of the hearing.

Strike the black jurors?
Prosecutor Nathan Wood from Wharton this week accused his boss, the elected DA Ross Kurtz, of advising attorneys in the office to avoid black jurors as a matter of strategy.

The issue emerged during a black woman's trial that began in February with Wood and another prosecutor striking the only three blacks on a jury panel. Defense attorney Mark Racer objected, forcing the prosecutors to give race-neutral explanations for their actions.

"This is just a win-at-all costs mentality that shouldn't be there," Racer said this week. "And clearly one of the prosecutors was uncomfortable with it."

The limits of 'reasonable suspicion'
The Texas Court of Criminal Appeals issued a pro-defense opinion in a case which raised the question "whether an officer has reasonable suspicion to detain a suspect based on observing the suspect walking with another person at 2 a.m. in an area known for narcotics activity and based upon the officer's unsubstantiated belief that the suspect is a 'known criminal.'" In an opinion by Judge Larry Meyers, a unanimous court said that was not enough to justify a detention. Commentary at TDCAA advised that, "Reasonable suspicion is a low threshold, but not quite this low. The Court is typically deferential to the officer on the street, but this officer perhaps could have talked with the suspect awhile longer before detaining him. By doing so, he might have discovered other suspicious facts to support a detention."

License plate readers and roadside debt collection
The Southeast Texas Examiner took a deep dive into the issue of law enforcement's use of license plate readers now that the Lege has okayed roadside collections via credit card.

Pepper spray abuses
A couple of blatant misuses of pepper spray caught Grits' eye recently. In Fort Worth, a police officer sprayed motorcycle club members as a line of bikes passed him on the highway. In Austin, the Peaceful Streets Project caught an officer on video pepper spraying a handcuffed man in a police van; the officer opened the van door, sprayed the guy, then shut it again while the guy writhed around in pain inside. Both those cops should be fired.

Targeting union-dues paycheck deductions
GOP voters in the Republican primary voted by an 83-17 margin to eliminate public employee unions' ability to deduct dues from members' paychecks and Empower Texas is promoting a petition urging the Legislature to do away with the practice. Grits might be more interested in that idea except that the bill they pushed last time gave a pass to dues deductions for local police associations, who arguably are the most powerful labor interest in the state. If this is about principle, apply the principle across the board. Besides, they're mainly doing this to attack Texas House Speaker Joe Straus and it was police unions who came to his ardent defense when the Speaker was attacked during the primary. If they're going to do this, police associations must be included or the proposal comes off as two-faced.

Toward police accountability
Several additional items related to police reform merit readers' attention:

• Citizens panel urges removal of confrontation-promoting Austin PD trainer
• Awful but lawful (from ACLUTX's Matt Simpson)
• Police de-escalation training, how it could help
• Don't hide police use of force videos from body cams
• Policing 2016 (a new report from the Urban Institute) 

House Speaker Paul Ryan backs criminal-justice reform
U.S. House Speaker Paul Ryan announced this week he'll move federal sentencing reform legislation in the House and explained the reasons behind his own, personal transition from tuff-on-crime maven to reform advocate. For example, "I didn't necessarily know this before, but redemption is a beautiful thing. It's a great thing," he declared. "Redemption is what makes this place work. We need to honor redemption. We need to make redemption something that is valued in our culture and our society and in our laws."

Austin passes Fair Chance Hiring ordinance

Last night, the Austin City Council passed a Fair Chance Hiring ordinance, becoming the first city in the South to require employers to wait until a conditional offer of employment has been made to inquire about an applicant’s criminal history. While similar "Ban the Box" initiatives have gained traction across the country, the Austin ordinance goes further than most fair chance laws in that it applies to private employers, delays the criminal history question until the point of conditional offer, and includes a civil penalty of up to $500.

According to Grassroots Leadership, which helped lead efforts to pass the ordinance, more than one in three Texans has a criminal record, and 2200 people return to the Austin area each year from prison. Even though employment stability is one of the top factors in preventing recidivism, 60-75% of people released from prison cannot find work within a year of their release. And the effects of incarceration disproportionately impact people of color: African Americans make up nearly 35% of people incarcerated in Texas prisons, while they represent only 12.5% of Texas’ overall population. With Austin’s unemployment rate exceptionally low and employers in need of applicants, it also makes sense for Austin to pass measures that would help increase the labor pool.

At last night’s hearing, the City Council heard public testimony from many formerly incarcerated individuals who spoke about the difficulty of obtaining gainful employment, the shame and stigma that comes with having a criminal record, and how their families have been impacted by their incarceration. Susannah Bannon, a Ph.D. student at the University of Texas at Austin, stated that her retired parents should not have to “worry about whether or not their 35-year old daughter who is halfway through her doctoral degree can pay her rent,” and asked if “someone who comes from this much privilege and has this much support … cannot make it in Austin, how can someone who is less fortunate do it?” Jorge Renaud, an organizer with Texas Advocates for Justice, slammed the “privileged few” opposing the ordinance, who he said were trying to persuade the Council “to continue a policy that has resulted in families, communities and entire neighborhoods on the east side and south side of Austin, impoverished and destitute and unable to climb out of poverty.”

Attorney Brian McGiverin, who also testified in support of the ordinance, placed the measure in the context of the Civil Rights Movement. He began his testimony with a quotation from a letter written on behalf of the U.S. Chamber of Commerce in 1963 regarding legislation that would become a piece of the 1964 Civil Rights Act. The excerpt resembled statements that have been made in opposition to the Austin ordinance: “The problem involves so many considerations that any bill comprehensive enough to cover them all would in all probability do more harm than good. The better approach to the problem is a combination of voluntary efforts and increased education to ensure better understanding of the need.” McGiverin argued that the “gameplan for gutting civil rights legislation really hasn’t changed that much in the past 50 years” and urged the Council not to be persuaded by the same “tired” arguments that have been used in the past to try to defeat antidiscrimination laws.

Opponents to the ordinance were mostly from the business community and included the Austin Chamber of Commerce, the Texas Credit Union Association, and the Texas Public Policy Foundation. A representative with the Texas Credit Union Association stated that the ordinance “imposes unnecessary costs and burdens on business and imposes particular risks on financial institutions,” referring to potential conflict with federal laws that prohibit financial institutions from employing people with certain criminal histories. However, Council Member Kitchen pointed out that the ordinance expressly did not apply where state or federal law disqualifies a person with a criminal history from holding certain jobs. Temporary staffing firms also voiced concerns that the ordinance would interfere with their particular business model, where applicants apply to the staffing firm for employment but are ultimately sent to outside employers which have their own hiring requirements. In response to those concerns an amendment was adopted that would allow the firms to conduct background checks either upon conditional offer of outside employment, or upon an applicant’s entry into a hiring pool.

Prior to the vote, Council Member Renteria spoke in support of the measure, and - like many of the advocates who testified in support - invoked his personal experience.  He described his brother’s involvement in the criminal justice system and the effects of his brother's criminal record on work opportunities. His brother, who spent most of his childhood and young adult life incarcerated – first in the Waco State School from age 8 and later in TDCJ until age 32 – is now 68 years old, has never earned more than $10 an hour and has never had health benefits. Council Member Renteria stated that, when his brother was incarcerated, “society at that time really didn’t care about low-income minorities,” and implored his fellow council members to “show our compassion.”

The ordinance was sponsored by Council Member Greg Casar and in the end was opposed by only two Council members. In a moment when communities across the country are looking for ways to improve outcomes for formerly incarcerated people, the ordinance is one of the more progressive efforts we’ve seen and sets an important precedent.

For my part, it was fascinating and inspiring to see a grassroots effort, led by people directly affected by the policy, defeat entrenched and well-funded interests to effect immediate and impactful change. Congratulations to Council Member Greg Casar and the organizers and advocates who have spent the better part of the past year working to get the ordinance passed.

Video from last night’s hearing can be found here.

Previewing interim charges at House Corrections Committee

The Texas House Corrections Committee will meet Tuesday and Wednesday to discuss an array of interim charges, so lets preview each of them ahead of time. First up on Tuesday:

• Study incarceration rates for non-violent drug offenses and the cost to the state associated with those offenses. Identify alternatives to incarceration, including community supervision, that could be used to reduce incarceration rates of non-violent drug offenders.
• Study inmate release policies of the Texas Department of Criminal Justice, including the release of inmates directly from administrative segregation.  Identify best practices and policies for the transitioning of these various inmate populations from the prison to appropriate supervision in the community. Identify any needed legislative changes necessary to accomplish these goals.

And on Wednesday they'll hear testimony related to their charge to:

Study recidivism, its major causes, and existing programs designed to reduce recidivism, including a review of current programs utilized by the Texas Department of Criminal Justice (TDCJ) and the Windham School District for incarcerated persons.  Examine re-entry programs and opportunities for offenders upon release.  Identify successful programs in other jurisdictions and consider how they might be implemented in Texas.

Let's walk through be basics on these.

Reducing drug offenders in prison
On incarceration rates for nonviolent drug offenders in Texas state prisons, the go-to source is the TDCJ Annual Statistical report; here's the FY 2014 version. According to that source, about 16 percent of TDCJ offenders on hand as of Aug. 31, 2014 were incarcerated for a drug offense as the primary charge, or 24,005 inmates out of roughly 150,000 incarcerated in TDCJ that day. Of those, 14,256 were incarcerated for possession only and 9,699 for drug delivery. Of the subset of those locked up in state jails (essentially fourth-degree felons), the same report found 37 percent were incarcerated for a drug offense, almost all of them (90 percent) for possession.

Notably, there were 1,998 inmates with a drug offense as their primary charge who are categorized by TDCJ as 3g offenders, a category largely reserved for violent crimes. The reference is to Sec. 42.12(3)(g) of the Code of Criminal Procedure. Drug offenses become 3g offenses if a child was present or involved or if the offense were committed in a drug free zone. While we may not like these drug offenders, its probably unhelpful to group them with murderers. This might be an example of people serving unnecessary extra time because we're "mad at" them, not afraid of them, as Sen. John Whitmire is fond of saying.

As far as the costs of housing drug offenders, the uniform cost report document prepared biennially by the Legislative Budget Board is the go-to source. They put the average FY 2014 cost at $54.89 per day.

OTOH, in truth, how much it costs to house a prisoner varies widely based on what unit they're housed in, whether they receive drug treatment, education, or other services, and whether they get sick, among other things. Recently Grits requested breakdown of the cost per prisoner at all TDCJ units as of 2014. (Thanks to TDCJ Public Information Officer Jason Clark for fulfilling that request.)

Looking at that level of detail, we can see, for example, that SAFP services delivered at the Jester I unit (built in 1885) cost $90.85 compared to an average of $58.72 at the four other units delivering SAFP services. These unit-by-unit data give a clearer sense of how widely costs can vary per prisoner depending on where they're housed. The $55 average LBB uses masks a wide range of differences and could be lowered by closing some of those higher-cost facilities.

As for alternatives to incarceration, my hope would be that debates could move beyond drug courts to the need to adjust drug sentences for low-level possession downward. Texas has invested a great deal in drug courts and proven conclusively that strong probation works. But the resource-intensive tactic cannot scale up to handle the volume of drug offenders cycling in and out of the system at all levels.

Thus, as the committee contemplates alternatives to incarceration, it's worth considering whether offenders caught with four grams or less of a controlled substances should be treated as felons at all, considering all the job and housing implications and other the collateral consequences a felony label entails. Shifting penalties to a Class A misdemeanor for up to four grams of a controlled substance would save the state big money and dramatically reduce collateral consequences for those low-level offenders.

How much money could be saved from reduced penalties? Last session, Rep. Senfronia Thompson proposed HB 254, which would have reduced the sentencing category for people possession less than a gram of a controlled substance, so a subset of the up-to-four-grams category. The Legislative Budget Board estimated that the state would save more than $105 million in the first biennium and upwards of $139 million in the second. If sentences for up to four grams were reduced to a Class A misdemeanor, the reduction in the incarceration budget would be even greater.

Those levels of savings could finance an impressive amount of treatment and diversion programming for these new Class A drug offenders, nearly all of whom would inevitably receive probation (just like most Class A drug offenders do now). Once the Comptroller certifies the savings, some or all of it could be diverted to probation departments to pay for additional treatment services and possibly reduce the portion of probation budgets paid for by probationer fees, an issue getting increasing levels of attention lately.

Last session the Legislature boosted TDCJ's budget by more than $400 million, which seemed like a remarkable amount for a bunch of self-styled fiscal conservatives to spend on a Big Government program with no clear extra benefit in public safety effectiveness. (Of course, the same can be said of the border surge.) And that doesn't include the portion of corrections spending outside of TDCJ's budget. In a fiscal environment where oil revenues are down and legislators will be looking for cuts, not increases, the best way to pay for alternatives to incarceration would be sentence reductions, which themselves constitute an "alternative" to sending low-level drug addicts to state prison.

Inmate release policies and ad seg
Regarding releasing inmates directly from ad seg, Grits has addressed this question previously and refer readers to those related posts. Texas recently had its first prisoner pass the 30 year mark in solitary confinement, which seems outlandish except that he won't be the last. As of 2014, Texas had more prisoners in solitary confinement than the entire prison populations in 12 states. The union for correctional officers has claimed excessive use of solitary is responsible for higher assault rates on prison staff.

Staffers preparing their legislators on these issues may want to check out a new report on solitary confinement titled "Time in Cell" and a series of essays published recently in the Yale Law Journal reacting to its findings. Also, Texas figured prominently in a Marshall Project story from last year related to inmates released directly from solitary.

Also relevant: Last year the United Nations issued the Mandela Rules related to the use of solitary confinement which include some relevant suggestions. Those rules emphasize that the period of imprisonment should be "used to ensure, so far as possible, the reintegration of such persons into society upon release so that they can lead a law-abiding and self-supporting life." When prisoners who've been in solitary are released, "the prison administration shall take the necessary measures to alleviate the potential detrimental effects of their confinement on them and on their community following their release from prison."

The Mandela Rules suggest a step-down pre-release strategy which at present is foreign to TDCJ's programs and culture.

Before the completion of the sentence, it is desirable that the necessary steps be taken to ensure for the prisoner a gradual return to life in society. This aim may be achieved, depending on the case, by a pre-release regime organized in the same prison or in another appropriate institution, or by release on trial under some kind of supervision which must not be entrusted to the police but should be combined with effective social aid.

Whether or not Texas fully adopts the Mandela Rules, that particular suggestion makes a lot of sense.

Understanding recidivism, planning for reentry
The interim "charge" up on Wednesday really addresses two separate but related issues: recidivism and reentry. This LBB report is the go-to document for recidivism data. For the cohort of prisoners released in 2011, the proportion rearrested within three years was:

• Prison: 46.5%
• State Jail: 62.0%
• Intermediate Sanction Facility: 57.5%

While the proportion re-incarcerated in TDCJ in three years was much lower:

• Prison: 21.4%
• State Jail: 30.7%
• Intermediate Sanction Facility: 36.5%

Among states, Texas' recidivism rates - especially the 3-year incarceration rate - are remarkably low. But that's no cause for celebration! In reality, Texas' recidivism rate is so low because our incarceration rate is too high. Texas incarcerates an excessive number of low-risk offenders who would be unlikely to re-offend even if they had never been sent to prison. So the low recidivism number is really, in many ways, a mark of shame. It's low because we're overusing incarceration as a punishment beyond what's necessary for maximizing public safety.

If Texas commits to a strategy of de-incarceration, in all likelihood recidivism rates will rise. But that's a sign of normalization, not of failure. The day we're really limiting incarceration to those we're "afraid of" as opposed to people we're mad at, those we're "afraid of" who're released will, as a class, recidivate more. But that's not an argument for locking up low-risk offenders!

As to reentry questions - which are related to but separate from the recidivism debate - legislators could do worse than to look again to the Mandela Rules, cited above, which advise that, "The duty of society does not end with a prisoner’s release. There should, therefore, be governmental or private agencies capable of lending the released prisoner efficient aftercare directed towards the lessening of prejudice against him or her and towards his or her social rehabilitation." In Texas by contrast, released prisoners are given $100 in "gate money" and a bus ticket.

The committee should look at some of the barriers to successful reentry, like restriction on TANF benefits and food stamps for certain drug offenders discussed in a Grits post earlier today.  I'd also like to see the committee look for policies to reduce the accumulation of fines, fees, and debts facing ex-prisoners upon reentry. And there should be more focus on reducing the burden on families when their loved ones come home from prison.

The two biggest barriers to reentry, though, remain housing and jobs. These are difficult problems which don't lend themselves to simple solutions. In fact, it's hard to imagine making a dent in either without some state investment, which as mentioned runs counter to an oil-starved budget environment. And yet, if the Legislature doesn't address these questions then we're not being honest about the often state-created barriers to reentry facing ex-offenders.

The Lege eliminated job assistance for ex-prisoners during the 2011 budget crunch and has declined to limit the extent landlords can discriminate against ex-offenders regarding housing, even though one in five Americans has some sort of criminal record. In the past, efforts to expand reentry housing opportunities have been too quickly scuttled in response to NIMBY backlash. Legislators will need to pony up money for jobs programs and other reentry services and stand up to NIMBY opposition over housing to make much more headway on reentry questions. These problems are fairly well understood, but they'll require unusual political courage and money to honestly address them.

MORE: Grits contributing writer Michele Deitch emailed to say:

I wanted to flag for you that the Lege doesn't even have to reach to an international source like the Mandela Rules for guidance on this issue.  The ABA's Standards on the Treatment of Prisoners provide similar guidance as to the need for step-down type approaches.  Here is a link to the ABA Standards.

You would want to look at Standards 23-2.6, 2.7, 2.8, 2.9, and 3.8, all of which deal with seg issues.   Pay particular attention to 2.9, which addresses procedures for placement and retention in long-term segregated housing, and especially subsection (f), which addresses the need for a less-restrictive setting in the months before release to the community.  The drafters definitely had in mind a step-down type approach to segregated housing.  (As the original drafter, I can say that with some authority! :) )