Modifying 3-strikes theft enhancement would ↓ TX state-jail population

On Monday, the Texas House Criminal Jurisprudence Committee will hear a good little decarceration bill modifying the enhancement for misdemeanor three-strikes theft. This one should have been changed long ago.

Under current Texas law, if at any time in your life you commit three incidents of misdemeanor theft, regardless of the value of the property, prosecutors can charge it as a state-jail felony. Even if the third "strike" is stealing candy from the grocery-store check-out line, prosecutors can seek a felony conviction and sentence.

HB 1240 by Rep. Yvonne Davis would revise this statute in two important ways: First, it would require that the lower-level thefts be within five years of one another to count toward a penalty enhancement. Piecing together a new, theft with two others that are decades old will no longer be allowed.

Second, the penalty increase stemming from a third "strike" would only bump the charge up by one category. So if the third strike were a Class A misdemeanor ($750 to $2,499.99), it would make no difference. But if it were a Class C or B misdemeanor, the penalty would still be a misdemeanor.

This change will further reduce the number of inmates entering Texas state jails, which notoriously have the highest recidivism rates of any facilities in the system.

Just Liberty reviewed Texas Department of Criminal Justice datasets and discovered that three-strikes theft accounted for almost 2,400 state-jail admissions in the 2018 fiscal year. This is the second most common reason for a state-jail sentence after possession of a controlled substance.

A few of those folks would have still gone to state jail under HB 1240. But because most theft involves low-value items, many more people would have been charged with misdemeanors instead of felonies. Grits wouldn't be surprised if HB 1240 all but eliminated three-strike theft offenders in Texas state jails.

Hard to argue with this one: Reduces incarceration in state jails where recidivism is high, reduces public perceptions of unfairness, but still sends a message that repeat theft won't be tolerated. Grits is delighted Rep. Davis proposed the bill and pleased that Chairwoman Nicole Collier is taking it up on the early side this session. HB 1240 deserves strong, bipartisan support from criminal-justice reformers.

A tale of two approaches to Texas property-theft thresholds

A pair of bills heard in two Texas House committees this week demonstrate opposing philosophies when it comes to incarcerating people for low-end property theft.

At Monday's Texas House Criminal Jurisprudence Committee hearing, state Rep. Gene Wu, a Houston Democrat, proposed HB 760 making theft of packages delivered to someone's front porch an automatic state-jail felony, even if the value of the stolen items were just a few dollars. Wu said this was justified because going onto someone's porch was a particularly egregious invasion of privacy. State Rep. Andrew Murr suggested expanding the bill to make it a state-jail felony to steal anything out of someone's yard or driveway.

State-jail felonies are essentially Texas' version of a fourth-degree felony, punishable by 180 days to 2 years incarcerated, served day for day without parole, with fines up to $10,000. Under current law, thieves must steal $2,500 or more worth of goods to reach that threshold in Texas; below that, theft is a misdemeanor.

There are still pockets of particular types of theft scattered throughout Texas' criminal code exempted from the 2015 thresholds. E.g., it's still a state-jail felony to steal "less than 10 head of sheep, swine, or goats." So, steal a couple of goats worth $40 apiece - which would be a Class C misdemeanor in terms of value - and it's an automatic felony. Switch price tags to reduce the price of a hammer at the hardware store - automatic Class A misdemeanor. Since the passage of Texas' new property-theft thresholds in 2015, legislators have continued the effort by applying them to additional theft types. E.g., in 2017, another bill by Konni Burton applied them to check forgery.

Just Liberty opposed HB 760 in committee and followed up this week walking around a handout to committee-members' offices opposing the bill. Our fear is that it would ramp up state imprisonment for property theft during an era when it's been rapidly declining. Give our handout a read.

Porch piracy is a function of consumers seeking convenience. People want products delivered to their homes, and don't want to wait around the house to sign for them. But convenience can come with trade-offs, both in terms of consumer privacy and security. When commerce occurs in a commercially zoned location, retailers employ loss-prevention specialists and a certain amount of low-grade shoplifting is considered a cost of doing business. Move commerce to your front porch and no one should be surprised if consumers face the same low-grade theft problem witnessed at retailers.

Wu compared porch piracy to burglary of a habitation, saying if it were made a state-jail felony, police would take it more seriously and investigate. But home burglaries have among the lowest clearance rates of all index crimes, often in the 10-12 percent range. There's scant evidence making the punishment for such crimes harsher makes them any easier to solve.

There's also no evidence to support his inference that public pressure couldn't convince police to change their priorities and investigate porch-piracy incidents, especially as cameras proliferate, making them easier to pursue. IRL, police are remarkably responsive to such pressure. Maybe not in every instance, but in aggregate, for sure.

By contrast, in the Business and Industry Committee on Tuesday, Rep. Matt Shaheen, a Plano Republican, proposed legislation Just Liberty supported, HB 427, which would apply the property-theft thresholds to theft involving price-tag switching. This is a less-frequently seen brand of shoplifting, essentially, which occasionally can reach grandiose levels but is more often an impulse crime committed in a moment of human weakness.

Presently, price-tag switching on low-value items garners an automatic Class A misdemeanor, punishable by up to a year in county jail and a $4,000 fine. Shaheen's bill applies the property-theft thresholds Texas passed in 2015 to such crimes, so that the theft only becomes a Class A misdemeanor if the person is stealing more than $750. Remarkably, the bill faced no opposition in committee.

This blog has opposed criminal-penalty enhancements for more than a decade, and in recent years we've seen new allies step up like the Texas Public Policy Foundation criticizing the idea that criminal-penalty enhancements are a one-size-fits-all policy response to any objectionable behavior. Juxtaposing these two pieces of legislation provides a good demonstration of 2019 public-policy debates in Texas regarding punishment of property theft.

Shaheen's bill continues efforts to reduce incarceration for low-level theft begun by Republican state Sen. Konni Burton, who was ousted by Democrat Beverly Powell last November.

By contrast, Wu's HB 760 evinces an old-school, tuff-on-crime mindset: Don't like a petty but annoying behavior? Throw government resources at the problem till it goes away. (And then, pretend you're surprised when the behavior inevitably persists.)

To be fair, Wu has supported other criminal-justice reform legislation in the past, particularly on juvenile matters. But the last thing Texas needs is a new law filling up prisons for low-grade property theft. Shaheen's approach makes more sense. Legislators shouldn't begin carving out exceptions to property-theft thresholds just two sessions after enacting them. Consolidating all the various brands of theft to apply the thresholds across the board is the better approach.

Rent-to-own stores get special debtors-prison privileges

When Grits uses the phrase "debtors prisons" in the 21st century context, I'm typically talking about the practice of government jailing people for unpaid fines and traffic tickets, a practice which has expanded to a breathtaking scale in the last couple of decades.

But rent-to-own stores in Texas and elsewhere still utilize jails as debtors prisons the old fashioned way: By having local prosecutors file criminal charges against people who can't pay their private debts to a commercial vendor, the Texas Tribune reported. "[T]he 1977 provision turned the concept of 'innocent until proven guilty' on its head." Back then,

“The Legislature, in this business-friendly environment ... was all too eager to allow commercial interests to use the criminal statutes to clean up bad decisions they may have made in entering into contracts with people,” said Tom Krampitz, who was assistant director of the Texas District and County Attorneys Association when the bill was passed. “The reason why the [rental] industry deserves a special deal, without sounding too jaded, is they had a good lobbyist.”

Regular readers will perhaps be unsurprised to learn that McLennan County DA Abel Reyna ranks among the worst offenders. "[R]ent-to-own disputes made up 98 percent of the theft of service complaints filed with the Waco and Bellmead police departments from 2014 through the first half of 2017."

MORE: From NerdWallet. AND MORE: From the Texas Tribune. AND: From the Dallas News: "What are you in jail for? I rented a couch."

Press ignores most important TX de-incarceration legislation of 2015 session

Grits remains surprised that MSM coverage of new laws taking effect in Texas September 1st have omitted the state's most important sentencing reform since the Lege altered probation and parole rules in 2007: Raising theft thresholds for property crimes to account for inflation since the levels were set in 1993.

As Grits earlier had summarized, the measure passed as an amendment after a senate bill failed to get a House floor vote. The resulting legislation will reduce incarceration for property crimes at the margins, a move this blog has advocated for years. The most immediate budget impact will come from shifting state-jail felony charges to the misdemeanor courts. (The threshold at which theft becomes a felony increased from $1,500 to $2,500.) The change should also reduce the proportion of theft cases charged as serious felonies based solely on the property valuation, reducing incarceration in the long term.

By keeping the old thresholds for so long, as each year went by, it essentially became a felony in Texas to steal less and less stuff, creating a form of incarceration creep that ratcheted up penalties for lesser offenses without the Legislature doing anything. One may have preferred they index the thresholds to inflation going forward, but this was a needed short-term fix.

Coupled with legislation to allow state jail felons to earn "diligent participation credits" for participation in education, vocational, treatment, or work programs, and the 84th Legislature may have created room for the Texas Department of Criminal Justice to close a couple more state jail unit sooner than later.

These were incremental changes, but significant ones. Heaven knows why the press hasn't given them the profile they deserve.

RELATED: Political correctness won't cut Texas' prison population.

This is what less government looks like: Big budget savings from reduced criminal penalties

Bills reducing criminal penalties would save big bucks, according to state estimates.  As the House Criminal Jurisprudence Committee prepares to hear several bills reducing criminal penalties today, the Legislative Budget Board issued fiscal notes estimating cost savings to the state:

• HB 254 by Thompson reducing penalties for possession of less than a gram of a controlled substance: $105.2 million.
• HB 3326 by Thompson reducing penalties for low-level drug possession and prostitution along with adjusting theft thresholds for inflation: $163.8 million.
• HB 2165 by Simpson legalizing pot and treating it like tomatoes: $71.2 million to the state, much more to counties and cities.
• HB 507 by Moody reducing possession of less than an ounce of pot from a Class B misdemeanor to a civil penalty: $1.9 million, plus a net positive to counties.

To fantasize for a moment, make Grits Philosopher King and here's my suggestion: Pass HB 3326 and HB 2165, save $235 million, and use the savings to eliminate the Driver Responsibility Program. That almost certainly won't happen, but it's a function of a failure of political will, not because it's impossible to find cuts that could pay for eliminating a failed program. C'est la vie.

N.b., the fiscal note on Simpson's legalize-it bill only includes cost reductions but no sales tax revenues from the inevitable increased economic activity which would come from opening up a new domestic agricultural market. The real benefit to the state budget would be much higher.

There's really quite an impressive array of bills suggesting reduced criminal penalties (and several other topics, including warrants for the government to access cell-phone location data) on today's House Criminal Jurisprudence Committee agenda, check them out.

Ring the bell for property threshold adjustments

Sometimes, an unrung bell resonates the loudest.

Such was the case last night when the Texas Senate Criminal Justice Committee heard state Sen. Konni Burton's SB 393, which would adjust for inflation the main theft categories delineating punishment ranges in Texas, updating the code for the first time since 1993. Your correspondent was there to (briefly) testify in favor of the bill on behalf of the Texas Criminal Justice Coalition, but the legislation didn't need much help.

Remarkably, particularly given the contentious hearing early over changes to truancy statutes, there was no opposition to this bill - none, zilch, zero. No cops, no prosecutors, no probation officials, nobody. Just crickets chirping. Even the police unions stayed off. Despite the state's "tough on crime" reputation, not one citizen out of 25 million plus thought to come to the capitol to oppose this bill. Who'da thought?

Shannon Edmonds from the state prosecutors association testified "on" the bill, as is his wont, warning the committee against indexing the thresholds so they automatically update every year, which Sen. Charles Perry had passingly suggested. He said it would create too much confusion, particularly in older cases if the thresholds change through the course of the statute of limitations.

I'm more sanguine than Shannon about Texas prosecutors' ability to adjust to indexed property thresholds. Think of how many things hinge on Federal Poverty Levels, which are updated every year. Indexing property thresholds would be similar - the number would change annually and everybody would use the new one but also have a list of what they were from the previous years.

Regardless, that's not the bill on the table, which envisions only a one-time increase to account for inflation since 1993. The threshold from a Class A misdemeanor to a state jail felony would rise from $1,500 to $2,500.

Sen. Joan Huffman entertained concern that the $2,500 threshold may be too high (though it's almost precisely where the inflation adjustment lands), but she voted for the bill in the end. Marc Levin of the Texas Public Policy Foundation attempted to reassure her by pointing out the enhancements for repeat misdemeanor offenders were still in place; this bill only changes the amounts.

This bill makes so much sense: The last time the Lege consciously considered what the thresholds should be was 1993 in response to recommendations from a statewide Punishment Standards Commission. Then-rookie Criminal Justice Committee Chairman John Whitmire shepherded through the rewrite of the Penal Code, which as Edmonds pointed out would later be called a national model.

But over time, the sort of inflationary creep this bill attempts to mitigate expands the scope of government and reduces the liberty of citizens sans any additional legislative mandate. Without adjusting for inflation, as I told the committee, every year Texans can become felons for stealing less and less stuff. That's not fair from an equal protection perspective and it's increasingly expensive: Half of state jail felons are incarcerated for property offenses, said Sen. Burton when laying out the bill. The fiscal note for the bill predicted a positive impact on the budget but declined to estimate an amount.

Though Burton's a freshman and wasn't on the committee last year, this legislation stems from a recommendation by the committee in their interim report. In 2013, Rep. James White carried similar legislation in the House, with Rep. Ruth Jones-McLendon filing a related bill in 2011. This would be a big get for a rookie if it makes it through.

Burton's SB 393 has the greatest potential for reducing state level incarceration pressures of any bill heard so far this session - perhaps enough, even, for Texas to close more state jail facilities. And the silence of the opposition may be the legislation's most ringing endorsement.

Senate Criminal Justice Committee: Index property crimes to inflation, expand reentry and diversion programs for mentally ill

The Texas Senate Criminal Justice Committee's interim report (pdf) to the 84th Legislature is out. Among the highlights:

"Despite recent media attention to two cases, adding intoxicated manslaughter to the list that cannot be granted probation is not necessary at this time."

The Lege should "Expand reentry programs and encourage the development of diversion programs for mentally ill offenders in order to prevent their entry into the prison system and ensure available treatment in the community."

They recommended indexing value thresholds for property offenses to adjust for inflation, a measure this blog has long advocated. In the context of state-level sentencing reform, it's particular cause for hope that Senators Joan Huffman and Charles Schwertner signed the recommendations with this item included.

Finally, they recommended "that the legislature support the enactment of a Texas Punishment and Sentencing Commission to thoroughly examine the non-traditional criminal offenses, consolidating those that meet the required elements for a criminal act into the Penal Code, while altering those that do not meet the elements to be considered a crime, to that of an administrative action or civil penalty."

See the full report for details.

RELATED: The interim report (pdf) from the House Homeland Security and Public Safety Committee is out and includes an extensive section on the Driver Responsibility surcharge, as well as the West disaster, emergency preparedness, and border security.

Dallas saw spike in safecracking, dying down after recent arrests

Thanks to our friends at TDCAA for pointing out this interesting Dallas Morning News article ("Dallas police take aim at old crime that's hot again: safecracking," July 8) revealing that safe robberies at businesses are on the rise.

Safes aren’t so safe these days.

Bandits have been breaking into safes or stealing them outright from businesses all over North Texas. The problem is so pervasive that Dallas police recently created a safe burglary task force and have been working with other area agencies to battle the onslaught.

“I don’t think you could name a city that borders Dallas that hasn’t been hit,” said Deputy Chief David Pughes, who oversees the task force.

“It’s not necessarily a well-structured criminal enterprise,” he said. “It’s groups of individuals who have decided that this is their crime of choice. It’s very lucrative and obviously what’s driving it right now is that they’ve had a lot of success.”

A Dallas Morning News review found that Dallas police recorded more than 165 business safe burglaries through the first half of 2013. That review found that thieves have swiped more than $500,000 in cash and caused at least $390,000 in damage. ...

The safes range from easily removed cash boxes to bigger bolted-down ones. The thefts typically involve thieves crudely bludgeoning their way inside the safe or simply carting the safes away to be opened later. Authorities said this isn’t high-tech Mission Impossible work.

Thieves have hit car dealerships in Rockwall and Garland, and even an upscale Mexican restaurant in Carrollton, authorities said.

Break-ins often take place overnight. Thieves typically wear gloves and masks and force their way in using crowbars and sledgehammers. Often they are in and out with their loot within minutes.

Some of the episodes have been caught on video but with perpetrators wearing masks and gloves, that didn't help much. The activity died down after the feds nabbed a crew last summer, but this year, "In May, the numbers exploded with Dallas-area agencies recording an average of about 30 safe burglaries a week." Then they dropped off again in late June after several recent arrests of people associated with the guys the feds caught last year. That's not surprising: Safecracking is not a grassrootsy crime committed on impulse like shoplifting or fighting. It requires intention, specialized knowledge, preparation and execution. Few criminals have that sort of focus or discipline and those who do tend to make their money selling dope.

Grits has recently evinced a passing interest in locks and keys, arguing that locks' symbolic role is as or more important than the physical barrier they pose to thieves, which a determined person can typically overcome. Clearly that goes not just for the lock on the front door but the safe in the office.

White collar fraudsters steal thousands times more than Class C shoplifters

A pair of stories out of Dallas related to theft enforcement - in particular shoplifting and Medicare fraud - struck me as emblematic of the priorities of policing that frequently frustrate your correspondent. First, since I've sometimes criticized prosecutors at USDOJ's Texas districts for de-prioritizing white-collar offenses to focus on increasingly vast volumes of immigration litigation, I should note in a positive light a major prosecution effort aimed at stemming Medicare fraud. Jim Landers' story ("More Dallas area home health care prosecutions likely as over 800 agencies face fraud inquiries," Oct. 6, behind paywall) at the Dallas News opened:

Something’s rotten about home health care in Dallas.

So far this year, federal investigators have brought charges against several area doctors and nurses, alleging they billed Medicare for more than $475 million in fraudulent claims. The cases involve at least 800 home health care agencies in the Dallas-Fort Worth area that are accused of participating in the schemes.

The owners and operators of five of those agencies are facing fraud charges. An additional 78 have seen their Medicare reimbursements suspended while investigators comb their records. For the rest, federal prosecutors say their investigations continue.

“There are several people now — agents and prosecutors — working up these cases, people who are devoted full time to do these cases,” said a Justice Department official who spoke on condition of anonymity. He characterized the indictments to date as “just the tip. There’s still a lot more cases to be brought.”

These are vast numbers: 800 area businesses collectively defrauding Medicare of nearly half a billion dollars! Extraordinary! And the issue is not isolated in Big D.

In urban areas across the country, Medicare paid for an average of 14.4 care episodes for every 100 beneficiaries in 2010. In the Dallas-Fort Worth area, the rate was more than double that — 38 cases per 100 beneficiaries.

(The seven highest rates in the country were recorded in South Texas. Brooks County had 150.4 episodes of care for every 100 beneficiaries, according to an analysis this year by the Medicare Payments Advisory Commission.)

Texas has more claims than other states in part because it does not require home health care agencies to get a “certificate of need” before setting up a business, the commission noted. Many other states limit the number of home health care agencies by requiring them to spell out the need for their services.

Prosecution provides a stick, but there's an homage at the end of the story to the reality that a long-term solution must be structural and preventive, not relying just on cops, prosecutors and jails to prevent corporate crime. "The Partnership for Quality Home Health Care, a national organization representing more than 1,500 home health care companies, told Congress this summer that the new “aberrant payment prevention” software saved $853 million in 2010 and could save another $11 billion over the next decade."

In the end, while it's necessary to punish white collar criminals to provide some disincentive for what's alleged to be rampant cheating, there's also a responsibility for government to prevent cheating through its own systems, which is where, according to the News, the process fell down with Texas' failure to effectively regulate home health providers. This is a case where Texas' unwillingness to regulate business has allegedly facilitated outright criminality. Businesses may dislike regulation, but surely they also dislike competing in an industry full of fraudsters who are dealt with, though rarely, mainly via prosecution.

A second Morning News story by Tanya Eiserer and Steve Thompson ("Changes to Dallas police shoplifting policy spur drop in crime rates," Oct. 6) details changes in Dallas police record keeping for petty, Class C shoplifting thefts in a way that made reported theft artificially drop this year. The Chief dubiously claimed a major drop in petty theft was not "because of a new policy that makes it harder for store owners to report shoplifting cases under $50." Instead, "Police Chief David Brown last week disputed that finding, saying the low numbers of reported retail thefts are the result of good police work, not the change in reporting policy. He said his department’s new crackdown on “fences” — people who buy and sell stolen goods — drove shoplifting lower."

Whether that claim is justifiable (and it's probably not), the underlying policy IMO was sound. "The change in the response policy freed up officers for the [anti-fencing] task force, Brown said. The idea was to treat theft cases much like drug cases, focusing on big operations rather than individual small-time criminals."

A comic-store clerk complained of extra paperwork now required to report a theft, declaring, "Last time I checked, the police are there to protect me, not to have me do their paperwork.” OTOH, he's afforded the shopkeeper's privilege, so if he wants to exercise that privilege, perhaps it's not unreasonable to oblige him to fill out some forms. In any event, according to the News, as soon as the new paperwork was required there was a rapid dropoff in reported shoplifting:

An analysis of the year’s petty shoplifting reports suggests that store operators like Shorr have become less likely to report minor shoplifting incidents. The reports plummeted Jan. 5. That’s exactly the day the new reporting policy took effect.

Before that date, minor shoplifting offenses averaged about 10 a day. Immediately afterward, that average fell to fewer than three a day. The average has remained steady at that lower level since.

With police recording about seven fewer petty shoplifting offenses a day, the reductions have accumulated. By the end of August, petty shoplifting had fallen by 1,692 reports — 73 percent — compared with the same period the year before.

Let's extrapolate. If the department previously received an average of ten reports of Class C shoplifting per day and the number reduced to three because of the new policy, that would mean DPD formerly took 3,650 such reports per year and the paperwork requirement reduced it to somewhere in the neighborhood of  1,100 per year. So let's say the real number should be 3,650 and the average amount stolen (a generous estimate; I have no idea what the real number is) was $40 per incident, then the total amount stolen would collectively come to $146,000.

Now compare that $146,000 worth of societal cost to the $475 million in allegedly fraudulent claims by 800 Dallas area home-health companies, with more potential Texas targets so far un-prosecuted.

Certainly, shoplifting is the kind of public order offense that can't be allowed to run rampant, but businesses are responsible for their own security as it regards Class C theft, and as the Morning News story noted, the larger retailers devote considerable resources toward low-level "loss prevention." Just as Medicare is installing preventive mechanisms, some responsibility for theft prevention falls on businesses themselves.

At the same time, it often galls me to see so much attention paid to petty criminals like Class C shoplifters, who are more pathetic than dangerous, while corporate criminals - whether on Wall Street or at DFW-area home health agencies - are robbing the public blind, in this case allegedly stealing more than three-thousand times the amount annually attributable to Class C shoplifters in Dallas. Those undetected financial crimes don't show up in crime statistics, just like the Class Cs now missed in the records because Dallas shopkeepers don't fill out their paperwork. But as a taxpayer, I'm a lot more concerned about the white-collar offenses we don't hear about than I am Class C shoplifting thefts that never made it into the record.

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

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

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

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

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

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

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

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

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

Smart-on-crime bills waiting for House floor votes

Via email, we learn that the Texas Criminal Justice Coalition is worried that several pieces of legislation aimed at reducing Texas inmate populations to stave off more prison building have been bottled up in the House Calendars Committee:

• H.B. 1706 (Representative Gutierrez): This bill adjusts the financial threshold for a Class B misdemeanor criminal mischief charge to reflect inflation rates.  Counties will likely experience a positive fiscal impact due to savings associated with reduced incarceration costs.  Section 28.03 of the Penal Code delineates the monetary thresholds for a criminal mischief offense.  These threshold amounts have not been adjusted or indexed for inflation since 1993.  According to the U.S. Department of Labor’s Consumer Price Index, consumer goods with a value of $49 in 1993 are worth $75 today.  Therefore, due to price increases over time, the current penalty grades for criminal mischief offenses may not reflect the present value of the property that has been damaged or lost.  H.B. 1706 amends Section 28.03 to account for the dynamics of inflation by moving the Class B misdemeanor threshold from $50 up to $100.  Ultimately, this bill will reduce the number of people incarcerated for a criminal mischief conviction, thereby easing county jail overcrowding and providing docket relief to county courts.
• H.B. 3327 (Representative Woolley):   This bill limits liability in negligent hiring actions for employers that hire license holders with criminal records.  The state and local counties will likely experience a positive fiscal impact due to savings associated with greater workforce development and economic reinvestment.  Employers will be more inclined to hire job-seekers with a criminal record if the state eliminates a cause of action for negligent hiring based on knowledge of the employee’s past criminal activity.  H.B. 3327 protects employers who give felons a “second chance” by limiting their liability in negligent hiring actions.  As employment has been shown to be a significant factor in reducing and preventing criminal behavior, creating additional employment opportunities will lower recidivism while encouraging positive life changes that keep people from returning to crime.
• C.S.H.B. 3107 (Representative Menendez):   This bill provides counties the option to suspend rather than terminate an individual’s medical benefits – such as Social Security Disability Insurance – during a period of confinement in county jail.  The state will likely experience a positive fiscal impact due to savings associated with a more successful re-entry transition. Currently, individuals who are incarcerated in a county jail and who receive medical assistance in the form of Medicaid or Medicare and Social Security Disability Insurance may have their benefits terminated.  C.S.H.B. 3107 allows counties to suspend an individual’s medical benefits while he or she is incarcerated.  Specifically, this bill would give authority to the sheriff of a county to notify the United States Social Security Administration of an individual’s release from a county jail in order to have medical benefits reinstated. 

Grits couldn't agree more. The first bill relieves overpopulation pressures on state jails during a period when TDCJ will exceed capacity before the Lege meets again if at least a few bills like this one don't pass.. The second is one of the only bills promoting employment for ex-offenders in a session when post-release job assistance through Project RIO was otherwise completely eliminated. And the third bill, while permissive for the judge, at least gives the option for qualified offenders in the county jail have the feds pay for their healthcare post-release instead of the local emergency room, not only taking financial pressure off both counties and local hospitals but ensuring better continuity of care/medication for mental health patients when they leave confinement. All these address important issues issues that deserve debate and a vote, one way or the other. Grits hopes House Calendars sets them at once.

Raising theft categories to account for inflation generates state-jail savings

State Rep. Ruth Jones McLendon has HB 2326 up in tomorrow's House Criminal Jurisprudence Committee that would significantly reduce the state jail population by increasing the threshold amounts for theft for both misdemeanors and state jail felonies. The new felony theft threshold would be $3,000, under her bill. Higher theft categories - third degree felonies on up - would remain the same.

This corresponds to some degree with a frequent suggestion on Grits to index theft categories to inflation. Theft categories haven't been updated since 1993, but because of inflation, every year defendants reach the $1,500 felony threshold by stealing a smaller and smaller basket of goods. In real terms, goods worth $1,500 in 1993 when current levels were established were be worth less than $1,000 in 2010. (Try it yourself using the inflation calculator.)

If Texas' 1993 theft levels were adjusted precisely for inflation, you'd hit felony levels somewhere in the $2,300 range. Rep. McLendon's bill does not float theft levels with inflation, but instead sets a new felony theft threshold at $3,000, which would at least allow for several years of inflation before needing adjustment again.

Until the fiscal note is published, we can't know for sure how many cases would be affected, but I suspect it's quite a few. In a perfect world, a good chunk of any savings would go to fund specialized caseloads or probation programming for Class A theft offenders aimed at maximizing victim restitution. It doesn't make a lot of fiscal sense to react to the theft of $1,500 by spending ten times that amount per year on the defendant's incarceration.

MORE: The fiscal note for this bill says the cost savings can't be calculated because there's no data available on the value of goods stolen in theft convictions. According to the Criminal Justice Impact Statement, "In fiscal year 2010, there were 79,401 arrests for theft subject to the provisions of the bill," including both state jail felony thefts and all misdemeanor thefts. "Of those arrested for state jail felony theft (12,839 arrests) subject to the provisions of the bill, 2,010 offenders were placed on felony community supervision, and 1,490 were admitted to state jail for the offense of theft punishable as a state jail felony." Certainly it's true that no data exists regarding the value of goods stolen in state-jail felony theft cases, but it's probably a safe assumption that a disproportionate number (perhaps a third, if I had to guess) will fall into the lower end of the range captured by raising the threshold. If that's accurate, McLendon's bill would divert perhaps 500 new inmates annually from state jails - less than is needed to achieve budget cuts in HB 1, but helpful, nonetheless.

Like its cousins, burglary of a residence and  burglary of a vehicle, theft is a crime where the bigger problem is not the inadequacy of punishment but low clearance rates. According to these data, prosecutors secure convictions for state-jail felony theft following just 27.3% of arrests, which tells you these cases are already frequently plead down or dismissed. The majority of those convicted receive probation. Further, police clearance rates for "larceny/theft" are just 17% statewide, according to DPS (see their report "Crime in Texas" [pdf] for FY 2008). Taken together (.17 x .273 = .046 or 4.6%), that means fewer than one in 20 state jail felony thefts reported statewide result in someone actually being convicted of the crime. Raising that ratio even a little would do a lot more to reduce crime than punishing the handful convicted slightly more harshly. Indeed, a commenter points out that prosecutors can already charge this offense as a Class A misdemeanor at their discretion, and many do in order to encourage restitution, in particular. So theft between $1,500 and $3,000 is already de facto treated as a Class A in many circumstances; the Lege may as well update the thresholds and make it official.

Index theft categories to inflation

In 1993, Texas set the current threshold for felony theft at $1,500 for a state jail felony - below that, theft receives misdemeanor charges that don't involve state prison time. The jump to the next offense category is quite significant - someone must steal more than $20,000 to be charged with a third degree felony.

However, adjusting for inflation, $1,500 in 1993 amounts to $2,208 in 2008 dollars. Indeed, "if you were to buy exactly the same products in 2008 and 1993, they would cost you $1500 and $1026.91 respectively." So over time, less serious thefts have come to be categorized as felonies that would have been misdemeanors at the time the law established the current threshold.

That's both unfair to defendants - who may receive different punishments for comparable offenses - and also results in an incremental boost in the incarceration rate over time as less serious thefts become felonies.

Why not index theft levels to to the Consumer Price Index and have it adjusted automatically every year instead of changing it every couple of decades when the Legislature gets around to it? That would make more sense both from an equal protection standpoint and from the perspective of fiscal austerity, limiting expensive incarceration in state prisons to thieves whose crimes would have fit the definition of felony theft at the time it was defined by the Legislature.