Few bills proposed at Lege to remedy statewide crisis in competency restoration

Steven Kreytak at the Austin Statesman has an excellent article on the little-discussed topic of competency restoration for mentally ill defendants, focusing on an extreme Austin case where a murder defendant, James McMeans, has spent 11.5 years in and out of state hospitals and jails, with the courts and the medical system unable to restore him to "competency," whatever that would mean for a previously homeless schizophrenic who thinks stabbing people is the only way to tell if they're androids. But the story also explored data regarding the more typical, workaday competency restoration cases that are clogging state mental hospitals and turning local jails into de facto mental asylums.

Last year, 120 people from Travis County were among the 1,151 defendants from across Texas ultimately committed to the state hospitals with the goal of having their competency restored, said Carrie Williams, a spokeswoman for the Department of State Health Services.

When they reach the state hospitals, the defendants receive therapy and instruction on the court system along with adjustments to their medication, Williams said. About 80 percent of the patients admitted to state hospitals for competency restoration are "restored," Williams said.

Many of those committed to state hospitals are charged with misdemeanors, said Jeanette Kinard, director of the Travis County Mental Health Public Defender Office. Often those defendants' cases must be dismissed because the time they are in jail plus the time they are in the hospital reaches the maximum sentence they could receive for their crimes, she said.

"Think about it," said Kinard, whose office handles only misdemeanors. "You are charged with a Class B or Class A misdemeanor; most people would be out within 30 days or something. If you are mentally ill, you get this extra punishment."

There are several options for defendants who do not become competent to stand trial.
Judges can order extended stays in a state hospital, with the commitment reviewed every year. In select cases —often less serious, nonviolent ones — prosecutors will dismiss charges. Sometimes they will then send that case to probate court to seek a civil commitment to a hospital.

But in serious cases such as McMeans', defendants sometimes remain in state hospitals with their charges pending for years. It costs $401 a day to keep someone in the state's limited number of mental health beds, so that is an option officials try to avoid.

As of March 1, there were 70 people found incompetent by Travis County judges, not yet restored and remaining in state hospitals. Those inmates have been hospitalized for an average of a year and a half.

Several different problems present themselves here: One is how to deal with people like McMeans who are insane, dangerous, and ultimately incompetent to stand trial, even after more than a decade of trying? And even when such folks can be rendered temporarily "competent," how should we handle people who are "clearly 'crazy,' but ... also 'sane' under Texas law"? Civil commitments, the insanity defense, alternatives to warehousing the mentally ill for years ... these are questions society continues to struggle with, and most of the answers for the past four decades have involved dumping the problems of the mentally ill onto the criminal justice system.

Beyond the crazy and dangerous - the McMeans of the world who everyone agrees must be somehow segregated from society, the question being how - perhaps the more pressing  mental-illness issue involves more common, workaday cases, particularly misdemeanors where there's absolutely no good reason for competency restoration efforts to take longer than the likely punishment upon conviction. County jails across the state are struggling with these questions. On that score, Kreytak's story provides Grits an excuse to look at some of Texas' filed legislation related to competency restoration issues. 

HB 748 by Rep. Jose Menendez and its companion, SB 1439 by Sen. Leticia Van de Putte, is a good bill that focuses on the problem of mentally incompetent misdemeanants. Under the law, misdemeanor defendants supposedly shouldn't spend more time awaiting competency restoration than the length of their sentence would be if convicted, but not all the time spent waiting counts toward that "maximum restoration period." The bill includes time spent in jail, mental institutions, and while on the waiting list for restoration services, effectively quickening the time before which defense attorneys can move to dismiss charges

HB 2725 by Rep. Will Hartnett and its companion, SB 931 by Sen. Tommy Williams, is another good bill containing similar language that would count time on the waiting list and speed up how soon misdemeanor defendants could get their cases dismissed. It also adds several new issues for judges to consider when determining competency, including developmental disabilities beyond mental retardation, any "other medical condition that significantly limits the defendant's cognitive functioning," and "whether the identified condition has lasted or is expected to last continuously for at least one year." It would, however, allow two thirty day extensions of the maximum restoration period instead of one, a measure that's also included in legislation filed by Sen. Joan Huffman. (Presumably that's an homage to the fact that competency restoration these days routinely takes longer than that maximum period.)

Menendez and Van de Putte also filed legislation to allow surrogate decisionmakers for jail inmates declared incompetent to stand trial.

That's pretty much it as far as bills filed on the topic. They're all, for the most part, positive steps as far as they go, but they're band aids applied to a hemorrhaging system. No legislation was filed to expand outpatient competency restoration efforts (though quite a few counties are pursuing those options out of their own self interest), nor do any of the bills fundamentally challenge the outdated methodology of using state hospitals instead of community-based services for routine competency restoration.

Of course, the elephant in the room on the subject is the budget: If mental health services are significantly slashed, as seems likely, these incremental fixes will look like a drop in the bucket. This blog routinely laments use of the criminal justice system to address social problems it's not designed to manage, and the criminalization of mental illness, where our jails and prisons now treat more sick people than the largest mental hospitals, is perhaps the best example of that unhappy trend.

Will home visits and curfew checks for probationers, parolees fall victim to budget cuts?

The type of home visits and curfew checks for probationers and parolees described in this TV news story from Richland are exactly the type of activities that will likely cease if proposed cuts to local probation departments and TDCJ's parole division are enacted:

Ten officers checked six bars and 58 residences with 51 contacts being made with offenders or other household members.

One dozen curfew violations were found, along with three alcohol or drug violations.

Probation officer Jason Hoover says all of the offenders found to be violation of the conditions of supervision will be sanctioned for their behavior.  This can be done through more restrictive rules, financial sanctions, and/or jail time.

The Lege has appropriated quite a bit of money in the last two biennia toward reducing probation officer caseloads precisely so POs could spend more time on personal supervision and less on paperwork. Community supervision can be effective if it's staffed and and evidence-based practices applied, but what happens when POs have so many people on their caseloads they can't effectively leave their office, much less do home visits on a Friday night?

TDCJ has suggested the Legislature cut out this type of activity in order to keep the maximum number of state prison units up and running, but those priorities reduce public safety. It's probation and community supervision funding that should be preserved, even bolstered, while every effort should be made to identify classes of inmates who don't need to be in TDCJ, which is not all that difficult a task, and to close the costliest prisons.

Slow bureaucracy boosting Harris jail crowding; bill would institutionalize delays

A bill by Rep. Debbie Riddle  that's up tomorrow in the House Criminal Jurisprudence Committee would extend the stay of misdemeanor defendants booked into the county jail from a maximum of 24 to 36 hours until they receive a probable cause hearing. According to the fiscal note, "Harris County reported that the county has difficulty meeting the 24-hour probable cause hearing deadline in some cases, generally due to the computers of law enforcement agencies being down or a large volume of traffic through the county systems which slows the necessary preparation of paperwork. Therefore, the bill is anticipated to save the county some time and effort for the extension to 36 hours. In addition, the Harris County District Clerk, District Attorney, and other impacted offices would likely experience a cost savings by a reduced number of extension requests that would otherwise have to be prepared and recorded."

What the fiscal note fails to mention is that the bill would increase the amount of time misdemeanor defendants spend in the jail before magistration, which makes little sense when the county is already shipping inmates to Louisiana because of overcrowding. It'd be better for Harris County to get its internal paperwork problems solved without increasing pretrial jail time for misdemeanants as a go-to solution.

Constable layoffs due to budget cuts not necessarily a bad thing

We've already witnessed Dallas constables laid off in the budget cycle last fall, and Harris County Constables in Precincts 2, 4, and 5 are now laying off officers because of the budget crunch. It occurs to me that as counties begin to cut their criminal justice spending in light of declining tax revenues - given their constitutional obligations and the practical necessity of running local jails - it will probably be constables' offices, particularly those which have assumed day-to-day law enforcement functions, that take the biggest hit in the coming round of county budget cuts this fall.

That doesn't bother me much because, save for their process serving functions, I consider constables an anachronism that in an ideal world would not be a separate office from the Sheriff operated by independent elected officials. Quite frankly, the talent pool of politicians from the law-enforcement world who run for these jobs in most counties isn't deep enough to ensure quality people at the top, and they receive far less media attention or other public scrutiny than the sheriff or municipal police. Moreover, their disciplinary processes, internal affairs, etc., typically aren't very robust and often reek of good ol' boy-ism. Constables don't need traffic divisions or investigative units - that's what the municipal police and Sheriffs are for - and counties would be wise to take the opportunity this year to scale back these agencies to their essential, constitutional functions.

RELATED (3/15): Why Barney Fife kept his bullet in his pocket. 

Dog on Dog Open-Government Action, the Fiction of the Consensual Police Encounter, and other stories

Here are a few items I ran across recently that deserve Grits readers' attention:

Backstory on breaking Austin open government scandal
Get the full background on the Austin City Council Open Government Scandal when the Jennifer Peebles at the Texas Watchdog interviews Ken Martin at the Austin Bulldog in a TW podcast. That's a lot of dog on dog action. Interesting stuff; Martin dishes a lot of juicy details about who concealed what and how the story was broken. They've stopped the illegal meetings, says Martin, but the City is still concealing emails where City Councilmembers performed city business on their personal email accounts, a clear violation of years of precedent from the Texas Attorney General. Which is probably why, also in violation of the law, the City of Austin did not request an opinion from the Attorney General. They just said "no," like Melville's Bartleby the Scrivener declaring, "I would prefer not to." With no other recourse, Martin has been forced into court for the documents. Honestly, County Attorney David Escamilla is the only one who can crack this nut by bringing charges against those politicians who by all appearances conspired to violate the open records and open meetings acts.

'Perpetuating the Fiction of the Consensual Police Encounter'
The subhed is the title of a post from Liberty and Justice for Y'all criticizing a Texas Court of Criminal Appeals decision that placed the subject of a police encounter in a no-win position. If the defendant had not complied with a police command, writes blogger B.W. Barnett, "there is no doubt the court would now be using his noncompliance to justify a more intrusive search. There is absolutely no way for the defendant to win here."

Latest poster boy for asset forfeiture reform
As if he needed another one after the 2009 Tenaha Scandal, Jim Wells County has offered up a poster boy for Senate Criminal Justice Committee Chairman John Whitmire's asset forfeiture reform bill this session. According to the SA Express News, last week "four-term Jim Wells County district attorney pleaded guilty Monday to a felony count of misappropriating more than $2 million in asset forfeiture funds."

Attitudes toward gays fair game in sex offender voir dire
Attorney Bill Habern pointed out to me an interesting civil ruling from the Texas Supreme Court involving voir dire during civil commitment trials of sex offenders, on a couple of points: Where the case will include evidence that the target is gay, it's permissible to question jurors whether or not they can be fair to a gay person. Also, where a case requires proof of two prior sex-offense convictions, the defense may question whether or not the jurors will require more evidence than the mere fact of conviction in the two cases to determine whether the civil commitment target is "likely to reoffend." The SCOTX held that the judge unfairly limited the defendant's ability to eliminate biased jurors who would not consider the evidence. MORE: From the Supreme Court of Texas blog.

Making (some) sense of Indictment-Fest 2010 in Collin County
I've got to admit, I've never understood the whole brouhaha up in Collin County where the outgoing DA and judges spent their final months in office taking turns getting one another indicted, but several items I read today helped somewhat clear up the bizarre and murky picture. Here's Ed Housewright at the Dallas News framing the story with a journalist's faux balance. More probative, IMO, were attorney Hunter Biederman's excellent offerings at the blog Collin County Observer and on Biederman's own blog, Frisco DWI Lawyer, including juicy links to primary documents. MORE: From the Dallas Observer.

Why don't MSM sites link to primary documents?
Speaking of which, why don't MSM newspaper reporters and editors link to their primary sources in online reporting? I've never understood that. They have access to them, reference, them, quote them. Often they're already available online and only need a link, or are easily uploaded online either onto the media outlets own server or a variety of free alternatives (Google Documents, etc.). I thought about this today reading Brandi Grissom's piece in the New York Times where she quoted Dr. Tony Fabelo from a recent presentation to the Senate Criminal Justice Committee. Grits has quoted the same report, but I linked to a copy [pdf]. It'd pretty much put blogs like Grits out of business if the MSM would do that themselves. Quite often, the main value Grits adds is linking to primary sources for those who want more information (and, having read them for myself, raising any issues the MSM didn't pick up on). The idea of journalists as information gatekeepers is a myth that's been blown sky-high in the internet age. Today the best journalists are information conduits, summarizing the topline, takeaway issues for the masses but also providing access to more detailed information for opinion leaders and others with specialized interests. There's no reason they can't do both and it would make their product more valuable.

Budget cuts would force police officers, jails to care for mentally ill

This AP story by Sommer Ingram makes the excellent point that budget cuts to mental health services amount to a de facto decision to force police officers and county jails to care for the mentally ill:

"We're about to see huge setbacks. I think we're going to get slaughtered," said Leon Evans, chief executive of Bexar County Mental Health Care services. "We've been developing some tools so people don't have to go to the hospital and prison. But I think all these programs that are very effective, that help to reclaim lives, are at risk."

Experts say slashing mental health funding will have a painful and resounding effect across Texas when the mentally ill can't access the treatment and medication they need to function.

"What's happening is the criminalization of mental illness," said Polly Hughes, public policy chair of National Alliance on Mental Illness. "It shifts the responsibility of taking care of mental illness to the counties and officers who are already stretched thin."

Community services such as clinics, crisis hotlines and outpatient treatment are critical to keeping the mentally ill out of state institutions and jail.

The shortage of mental hospital beds means officers often have to drive a mentally ill person hundreds of miles to the next open bed.

"What we're facing in 2011 are law enforcement officers as de facto social workers and jails becoming asylums," Houston Senior Police Officer Frank Webb said. "Police officers are responding to more mental illness than social workers."

Jails are packed with mentally ill Texans who most often haven't committed a violent crime, but cycle endlessly through the system for minor violations, costing taxpayers thousands of dollars.

Texans with a serious mental illness are eight times more likely to be incarcerated in jails than treated in hospitals, according to the National Alliance on Mental Illness. A community health care program costs $12 per day to care for a patient, compared to $137 per day to incarcerate them, the group said.

If counties and municipalities aren't already freaking out about proposed mental health cuts, they aren't paying attention. This is another one of those areas - a common theme in corrections policy - where budget reductions by the state pretty much directly increase costs to local governments.

$162 million savings from probation, diversion cuts will cost more than twice that in extra incarceration costs

The Texas Tribune's Brandi Grissom has a piece in the New York Times today focused on the consequences of proposed cuts to diversion programs and reentry services for inmates leaving Texas prisons.

Texas legislators, looking for ways to plug an estimated $15 billion to $27 billion budget hole, are considering proposals that would cut as much as $162 million from rehabilitation and treatment programs meant to help criminals avoid going back to prison. For instance, the $100 Danny Bell received when he was released — the so-called “gate money” handed to prisoners who have completed their sentence — would be cut in half. Financing for Project Reintegration of Offenders, known as Project RIO, which helps released inmates find jobs, would be eliminated. So would money for educational and vocational programs in prisons and for re-entry transition coordinators. Financing for substance abuse and mental health treatment programs would drop dramatically.

Grits shares the concerns expressed about cutting the programs that staved off the need for more prison building over the last few years. They'll have to start building again if suggested cuts to probation, diversion and reentry programming are implemented, costing a lot more in the short term than any temporary savings we might enjoy. Dr. Tony Fabelo estimated recently that by FY 2013 - that is, the second year of the coming biennium for which the Lege is now writing the budget - under Texas' House budget as filed the state will be 12,857 beds short; under SB 1 on the Senate side, TDCJ would be 9,634 beds short, all because of cuts to diversion and reentry programming. If all those beds were leased at (for estimation purposes) $17,000 per inmate-year, the cost in the next biennium would run an extra $327 - $437 million - far more than the probation cuts save!

Cuts to probation and diversion programming will incur higher incarceration costs almost immediately, as judges change their sentencing patterns in reaction to the new array of options presented them by the state. If you were around for the cuts to probation and treatment programming during Texas' 2003 budget crisis, you've already seen this movie. Similarly, eliminating employment programs for ex-inmates while refusing to contemplate prison closures is a particularly penny-wise-pound-foolish decision - arguably the exact opposite of where spending priorities should be. After all, employed ex-offenders are a lot less likely to commit more crimes and go back to prison in the future.

The 9,600 to 12,800 extra beds Fabelo says we would need will have to come from somewhere. The state can build more prisons we can't afford. Leasing more beds would cost hundreds of millions they don't have (the House and Senate budgets suggest reducing the number of leased private prison beds by 3,519 and 2,119 beds respectively). Or, the Lege could embrace the opportunity to change policies to incarcerate fewer people. The latter choice looks to me like the only rational one, but so far this session all the momentum seems to be with TDCJ's priority of keeping the maximum number of prisons possible up and running. Time will tell.

Cutting Gate Money?
Another note from the NYT story: I've heard conflicting reports on whether TDCJ is considering cutting "gate money" for inmates, and Brandi didn't source her assertion that it would be cut in half. "Gate money" is the $100 given to inmates when they leave prison, an amount that hasn't changed in many years. As I understand it, if their sentence is complete, departing inmates get the whole $100; if they're on parole, they get $50 and a bus ticket, with their parole officer giving them the other $50 when they show up for their first meeting.

The idea that gate money might be cut was first publicly mentioned in a summary sent to probation directors by TDCJ-CJAD chief Cary Welebob describing cuts in the filed version of HB 1. Notably, though, the cut was not listed specifically anywhere in the filed versions of HB 1 or SB 1. Dave Baab frorm KPFT-Houston's The Prison Show on March 2 asked TDCJ flak Michelle Lyons about the gate money, and emailed me afterward: "According to Michelle Lyons, an unnamed Senator was trying to propose the reduction in Gate Money, and made a bit of noise about it. However, TDCJ did not view this as an option and it was not in the proposed budget cuts listed by [TDCJ Executive Director Brad] Livingston. Lyons stated that the current $100 or 50/50 split was barely enough to see them to their destination with basic necessities and they did not feel that reducing this amount would be beneficial in any manner." Based on that, in my own mind, for now, I've dubbed the cutting-gate-money meme a "rumor" - in this case one printed in the New York Times, but a rumor nonetheless.

UPDATE: While the gate-money cut wasn't included in the budget, a commenter pointed out that on Friday, Rep. John Otto did file HB 3650 which would reduce gate money from $100 to $50. So the issue is in play, but was not included in the filed versions of the budget.

Failure rates high on the Texas prison guard career ladder

Wednesday I mentioned that RIFs (reductions in force) among Texas prison guards could probably be accomplished through attrition instead of having to do actual "layoffs." Today let's look a little closer at the turnover rate among Texas correctional officers, as described in a report (not online) I received in an open records request from TDCJ called "FY 2010 Agency Turnover by Title.".

Here are the total number of Correctional Officer "separations" from TDCJ in FY 2010 for all reasons, along with the respective turnover rates for the employee classifications COs I-V that year.  

• CO I: 478, 59.27%  
• CO II: 1285, 50.61%  
• CO III: 2,366, 28.14%  
• CO IV: 814, 11.38% 
•  CO V: 781, 8.42% 

At least three notable problems jump out: 

1. TDCJ is having a hard time retaining new hires. Someone hired as a CO I who wants to work their way up the ranks has a 80% chance of washing out before they make it to CO III. (Multiplying success rates for the first two categories, i.e., those who didn't "separate" from the agency, one gets .4073 x .4939 = .2012, or a 20.1% success rate, and conversely 80% failure.) In other words, TDCJ must hire and train five CO Is to end up with one, fully trained, more experienced CO III down the line. The others are going to disappear on you.

2. The agency is hemorrhaging CO IIIs, with 2,366 employees under that classification leaving the agency in FY 2010. Once employees make CO IV, separation rates begin to stabilize as employees presumably decide stick it out for retirement. But that's an 85% washout rate before COs reach that level. The large number of CO III departures is particularly troubling from a management perspective because that's happening after they've been fully trained and completed any probationary period. So replacing them requires not just paying someone else their salary but training, certification, etc., representing a significant drain on the agency.

3. Both the House and Senate filed budgets anticipate cutting front-line guard pay, eliminating the 7% boost given them in the last biennial budget to increase retention rates. Some of that money was spent on front-end subsidies to attract new hires that will now go away. As the economy improves - particularly as oil prices rise - the struggle to attract and retain employees at TDCJ will only worsen.

Jobs are scarce, so people are still applying, but from these numbers the job clearly isn't for everyone. Many are called, I suppose, but few are chosen - or more accurately, few ultimately choose to stick with the profession beyond the short term. Apparently this is a job most applicants don't want to do no matter how badly they need the money!

Possession busts driving increased drug arrests: States tired of footing the bill

Will Texas join a growing number of states adjusting their drug laws to save money and focus criminal justice resources on more serious offenders? If they did, this blog has argued it would save many millions of dollars at both the state and county levels. Most opinion leaders think the Lege isn't "ready" to reduce drug sentences. Perhaps so, but I think it's also true they're not "ready" to handle the budget gap that's facing them. Desperate times call for bold measures, which is why, according to a story in the Wall Street Journal a week or so ago:

A growing number of states are renouncing some of the long prison sentences that have been a hallmark of the war on drugs and instead focusing on treatment, which once-skeptical lawmakers now say is proven to be less expensive and more effective.

Kentucky on Thursday became the latest to make the shift when Gov. Steve Beshear signed into law a measure increasing spending on rehabilitation programs and intensive drug testing. The law also reduces penalties for many drug offenses and may allow some traffickers and users of smaller amounts of drugs to avoid prison.

Delaware, Florida, Indiana, Massachusetts and Pennsylvania are among those that have pending bills to reduce penalties for drug offenders, in some cases by directing defendants into treatment programs. Similar laws have taken effect in South Carolina, Colorado and New York in recent years. States have maintained stiff penalties for more-serious drug crimes.

While the changes are part of broader belt-tightening efforts, they also reflect a growing belief among state lawmakers that prosecuting drug offenders aggressively often fails to treat their underlying addiction problems and can result in offenders cycling in and out of prisons for years—a critique long voiced by groups that advocate in favor of defendants' rights.

"If you just throw everyone in jail, it's terribly expensive and they get out and they are in the same boat," said Tom Jensen, a Republican state senator in Kentucky who voted in favor of the law.

And isn't this chart amazing?

That matches the pattern in Texas. In 2009, according to DPS' Uniform Crime Report data (pdf), Texas law enforcement made 133,191 arrests for drug possession, or 88.9% of all arrests for drug-related crimes.  Further, 57.9% of all drug arrests in Texas that year were for marijuana, also mostly for user-level possession. Reducing small pot possession charges to Class C misdemeanors would free up county jail space and generate extra fine revenue at the local level. Meanwhile, in 2007 the fiscal note for a bill by state Rep. Harold Dutton, which would have reduced less-than-a-gram drug possession penalties from a state-jail felony to a Class A misdemeanor, estimated the measure would have cut state jail admissions by more than 8,700 per year. If passed along with reductions in marijuana penalties, the 8,700 extra misdemeanants would be more than made up for by clearing tens of thousands of pot cases from county courts and jails. Rep. Dutton has filed the same bills this session, and one of them is scheduled for a hearing in the House Criminal Jurisprudence Committee next Tuesday. (If the state really wants to save money on prison costs, they'd get even more bang for the buck by ratcheting down penalties for 1-4 grams to a state jail felony.)

Imprisoning drug addicts for possession isn't the sole driver of mass incarceration, but it's a big contributing factor. During a time of scarce resources, it makes sense to focus limited incarceration resources on more serious, dangerous offenders at both the state and county level. It's a fixable problem.

H/T Sentencing Law & Policy.

Blast from the past: "A sorry mess, indeed"

After I asked someone recently to tell me about "N-Group" prisons, they pointed me to a lengthy, 15-year old story from Texas Monthly by Robert Draper titled, "The Great Texas Prison Mess." I'm not sure I've seen it before but the article is well-named, giving a good perspective on the Ann Richards-era push for "the greatest expansion of prison beds in the history of the free world" and the immediate aftermath. From the lede:

“IT WAS THE STUPIDEST THING THE STATE of Texas has ever done,” Andy Collins said about his crowning achievement, his oversight of the greatest expansion of prison beds in the history of the free world. “The public was absolutely hoodwinked into thinking that the only way the crime problem could ever be solved was prosecution and incarceration. We should’ve been interceding at an earlier age, dealing with these kids before they ever became crooks. But instead, we’re just taking juveniles and feeding them directly into the system. I mean, look who was behind it all. Prosecutors, cops, politicians—all of them with a self-serving agenda.

“And the media,” Collins declared as he leaned over the patio table at his suburban home just north of Houston, delivering the accusation with a martyr’s relish. “The goddam media did as much as anyone to build all those prisons because they fanned the flames of public hysteria. The issue of crime has become entertainment. Turn on the TV. Cops. Rescue 911. That kind of crap.

With 20/20 hindsight, that assessment looks pretty solid. Draper said of the media and politicians of the era, "So eager were they to sate the public’s bloodlust for locking up criminals and throwing away the key that they helped create a climate of hysteria in which corruption could flourish."

When Gov. Ann Richards was elected in 1990, Texas operated fewer than 50,000 prison beds; today we're at 154,000, with most of the expansion authorized during her tenure. Even by 1996, from Draper's perspective, the whole thing seemed problematic. "The dust from the prison expansion has now settled, and we are left with a sorry mess indeed."

Private prison bubble bursting? Empty, speculative jails in Texas

Yesterday I'd written about the ugly finances underlying the all-but-empty Jack Harwell Detention Center in McLennan County, and it made me realize that right now there are quite a few jail and prison facilities out there - many owned by counties - that overbuilt banking on ever-growing inmate populations that haven't materialized and now appear unlikely.

Here's the list of private or public-private jails or prisons I could come up with off the top of my head in Texas that are currently sitting empty or partially empty for lack of customers, in most cases with taxpayer backed bonds which must be paid whether or not the beds are leased:

• Jack Harwell Detention Center, McLennan County Jail
• Lubbock County Jail
• Billy Clayton Detention Center in Littlefield
• Dickens County Correctional Center
• Johnson County Law Enforcement Center
• Jones County ISF
• Limestone County Detention Center
• Bell County Jail
• Former TYC facility in Eagle Lake
• Former TYC facility in Coke County
• North Texas Intermediate Sanctions Facility (recently closed)
• Garza County Jail*
• Jefferson County Jail*

*See update below.

If you're aware of others, please let me know in the comments.

Webb County is presently considering a similar entrepreneurial jail scheme. And in Cameron County, a speculatively built jail was successful in finding clients, so much so that they had no room for their own inmates and now get paid $36.35 per day to house federal inmates while paying $48 per day to house their own. These schemes never seem to wrok out the way their proponents hope, and taxpayers inevitably are left holding the bag.

Exacerbating matters, TDCJ last year canceled contracts with counties for 1,900 beds and doesn't plan rent beds from counties under the new budget, and the filed versions of Texas House and Senate budgets have suggested reducing the number of leased private prison beds by 3,519 and 2,119 beds respectively, further reducing the prospects for short-term demand. Each of the above-bulleted entities is hoping the feds will bail them out by leasing more immigration detention beds, but they won't bail out all of them and might not contract with any of them, given that there's lots of competition from other parts of the country. Corrections Corporation of America alone has around 12,500 empty beds nationwide.

All this to say, whereas just five years ago there was excess demand for private prison capacity, today there is a glut. What's more, quite a few Texas counties got roped into issuing taxpayer-backed debt to participate in this ill-conceived speculative bubble, which now appears to be bursting before our eyes.

UPDATE/MORE: I sent this post to administrators at the Texas Commission on Jail Standards and was advised by Assistant Director Brandon Wood via email that: "There is a former county jail in Jefferson that had been operated by a private that is now empty ... and the 96 bed juvenile facility at Garza was empty for quite some time, but they may be housing BOP in it now.  ... [T]he one in Littlefield was originally built as a contract juvenile facility and when that market did not materialize, it was converted to adult." Thanks Brandon! According to the latest TCJS population report (pdf), as of March 1 Garza County had 34 contract beds in its 96 bed jail.and remains 35% vacant.

Skinner case boosts chances for improving state DNA testing statute

I've not had time to give more than passing attention to Hank Skinner's much-remarked victory at the US Supreme Court, allowing federal civil rights lawsuits to seek DNA testing on top of Texas' Ch. 64 of the Code of Criminal Procedure, our DNA testing statute. But the decision (pdf) does make me think the chances of passage for state Sen. Rodney Ellis' SB 122 have improved as a result of the decision. The bill, which is part of his "innocence package," essentially removes a few already minimalist barriers to securing postconviction DNA testing where evidence was never tested and the results might prove innocence. If it passes, judges will no longer consider why the DNA wasn't tested in the first place, only if it exists, wasn't tested and potentially could prove innocence. (It also requires unidentified DNA profiles in the sample to be matched with CODIS,  the national database, which nine times out of ten would probably happen anyway.)

There were already strong arguments for the bill: If DNA exists and could be exculpatory, denying it due to procedural hurdles is unjust if it keeps an innocent person in prison, regardless of the state or victims' interests in "finality." But the Skinner case adds a much more practical argument: If DAs fight testing and a local judge denies it under Chapter 64, they could be subjecting the county to a federal civil rights suit! That ups the ante, giving SB 122 more "legs" because counties' and DAs' interests are now more firmly aligned with it; Skinner took away all incentive to fight DNA testing in state court on procedural grounds.

Prison guard cuts could come through attrition

If the Legislature orders TDCJ to reduce the number of correctional officers and close prisons, the cuts could probably be managed effectively through attrition with few actual layoffs, according to a report (not online) I received in an open records request from TDCJ called "FY 2010 Agency Turnover by Title." That document shows the number of COs remaining steady a little more than 28,000 over the last fiscal year, but with 5,724 CO "separations" from the agency in just one year, or 20.31% of their prison guard workforce. The turnover rate for a CO 1, or an entry level guard slot, was a whopping 59%.

Overall, TDCJ had 7,375 total employee separations in FY 2010, including guards, but the agency-wide turnover rate was just 16.79%, so the non-front line jobs turn over less quickly.

All this to say, if it's planned properly, employee reductions at TDCJ needn't all come from "layoffs." Reducing the number of COs has never been the agency's problem! Hiring them is where they've historically had difficulty.

Rick Perry vs. Sheila Jackson-Lee on expanding the sex-offender registry?

The Houston Chronicle has some breaking news that Grits readers learned two months ago: "The state - which has the second-largest sex offender database in the nation, with 63,000 men and women registered - is balking at the [new federal] requirements, citing unacceptably high costs of implementing the law's provisions."

The story, though, framed the issue somewhat peculiarly, comparing the decision to "two highly publicized showdowns with the federal government over Texas pollution-control efforts and education funding," declaring that "this low-key standoff is yet another issue in Gov. Rick Perry's ballyhooed war on Washington." Even stranger, the story sets Perry in opposition to Houston Congresswoman Sheila Jackson-Lee:

"What is more important and more precious than our children?" Jackson Lee asked.

If the impasse can't be broken, she says she'll push the Obama administration to delay penalties against Texas rather than forfeit federal victim assistance funds.

"I think it's more important to get states to comply than to meet arbitrary deadlines," said Jackson Lee, a member of the House Judiciary Committee.

"The cost for Texas is considerable, but the impact on saving the lives of children warrants that kind of investment," Jackson Lee said.

Okay ... just so I get all my partisan labels straight, if I'm in favor of expanding a failed bloated sex-offender registry I'm a liberal Democrat siding with Sheila Jackson-Lee, while if I reject the Adam Walsh act requirements so the state can apply its own risk assessments, I'm siding with Rick Perry on behalf of fiscal responsibility and state's rights in a "showdown" with Washington. Is that about right?

In truth, for the most part, the sex-offender registry isn't an issue that breaks down along partisan lines because one of its primary purposes - even more so, IMO, than it promotes public safety - is to allow politicians of all stripes to grandstand and engage in demagoguery, at least until reality intervenes, either through stories of injustice or fiscal contraction. In times of normal budgets, at least for the last coupla decades, everybody on both sides of the aisle has said basically the same thing as the Congresswoman, just like everybody in Salem was against witches. In the current budget environment, though, she's writing checks up there in Washington that the state of Texas can't afford to cash. If these are the terms of debate these days, sign me up on the Governor's side and tell the feds nobody down here wants to pay for the Adam Walsh Act while we're closing schools and prisons and gutting core functions of state government.

H/T to Sentencing Law & Policy.

RELATED: From forensic psychologist Karen Franklin, see "Justice Perverted," in which she opens an eponymous book review asking "At a time when many U.S. states are teetering on the verge of bankruptcy and essential public services are being slashed and burned, does it make sense to spend billions and billions of dollars on largely symbolic laws that do little or nothing to prevent or deter sex offending?"

When fewer inmates is a big problem: Perverse incentives and the McLennan County Jail

A reader forwards me a rather odd article from the Waco Tribune Herald (subscription-only) titled "Inmate decline puzzles officials," that plays the role of apologist for a series of very bad management decisions by the McLennan County Commissioners Court.

Here's the backstory: McLennan County a few years ago blew past all suggestions that they consider jail diversion strategies and built an 816-bed jail they don't need, thinking they could have a private prison company manage the thing and lease the extra beds for a profit. "The original construction proposal for the jail states the facility needed to be 90 percent full to generate enough housing revenue to cover operation costs and repay the bond debt."

Now, lamented reporter Regina Dennis in Sunday's paper, "A sudden and unexpected drop in inmates in jails has perplexed corrections researchers and law enforcement officials across the country." The crux of the story explores the causes of this decline, not from a perspective of whether or not it's a positive development for humanity but mainly as it pertains to where the county might find extra inmates to fill their Boondoggle Bastille. Still, some interesting perspectives were explored:

Large Texas counties and the states have dropped out of the market as customers for private prison bed services, wrote Dennis, but the federal Bureau of Prisons remains a potential customer with seemingly limitless growth potential (mostly, she failed to add, because of immigration detention). "Federal Bureau of Prisons Spokesman Ed Reed said the agency had a steady increase in prisoners each year for the past few decades. The agency will soon open new facilities this year to handle the growing prison population, including a 1,280 bed medium-security prison in Berlin, N.H."

Dennis quotes "Paige Harrison, a statistician in the Bureau of Justice Statistics’ correctional division, [who] said lower crime rates during the past decade likely contributed to the decline. Crime rates have dropped by 11 percent between 2000 and 2008, she said." Of course, that crime decline was already well underway when McLennan County decided to build its extra jail. This isn't a new development, crime's been declining steadily since the mid-'90s. But at some point, if fewer people commit crimes you'd expect the number of people in jail to fall, wouldn't you?

Even so, strangely enough, "the number of new bookings each month in McLennan County has gone up, suggesting less crime may not be the cause of the local inmate decline. ... the McLennan County Jail averaged 3,493 bookings each month in 2007. This February, there were 3,604 new bookings." So Waco has seen less crime but slightly more jail bookings. That means it's likely changes in how cases are processed that explains the reduced jail numbers.“'When you see a downward trend in incarceration, counties are generally just trying to get inmates out on quicker docket calls, quicker judgment calls, quicker bonding procedures, alternative incarceration, things of this nature,' said [Adan] Munoz, of the jail standards commission.” Assigning two judges to felony cases has sped up trial dates in recent years, the Trib reported, from a year or more's wait to 4-8 months. That alone would explain the decline.

Another interesting theory tossed out: Having felons serve their sentences day for day could be reducing the number of parole violators in county jails, since if they're not being supervised they can't be arrested for violations: “'Instead of releasing (prisoners) conditionally on parole, some states are using expiration of sentence, which is (when prisoners) serve their full sentence and then they’re released,' Harrison said. 'Early indicators suggest that if you’re not watching recently released inmates, they’re not going to come back into your purview. The more you watch them, the more you will find in terms of parole violations.'”

Ironically, perhaps the county's best hope for filling its empty jail would be if the Legislature guts probation programming in its current budget! “'When the county court-at-law judge has the choice of either putting somebody on probation or putting them in jail, and they’ve done away with the money to support the probation, he’s got two choices — either let them go or put them in jail,' [County Judge Jim] Lewis said. 'The judge is not going to just turn them loose.'” Of course, for counties with full jails who don't want a massive influx of new inmates, that policy would be a catastrophe for exactly the same reasons Lewis is banking on it.

Bottom line: McLennan County's problem is not that incarceration rates are declining per se, but that the local commissioners court essentially made a financial bet backed by the taxpayers on them increasing, the way a gambler feels more free to play the roulette wheel when betting with other people's money. In a year or so, if they can't find a customer, the whole financial house of cards will come tumbling down, with the county either bailing out the Boondoggle Bastille or taking a big, expensive hit on its bond rating on all its debt going forward. And IMO it was as predictable as the sunrise.

See prior Grits posts:

• McLennan County cuts jail pharmacy spending as doomsday deal devolves
• Will county cost cutting doom speculative jail in Waco?
• McLennan County on the hook for bonds on privatized jail
• Waco taxpayers likely on the hook for jail they were promised would pay for itself
• 'Doomsday Deal': Prison for profit scheme in Waco going bust for lack of inmates
• McLennan County private jail deal creates perverse incentives

Coverage of juvenile-justice merger briefing

Yesterday's briefing on the proposed merger of the Texas Youth Commission and the Juvenile Probation Commission was adequately covered by the MSM, so I'll let others do the heavy lifting:

• Texas Tribune
• Dallas Morning News
• Austin Statesman
• Lone Star Report

Today's House Corrections Committee hearing, which will be streamed online here starting at 2 pm, will undoubtedly flesh all this out more detail when they hear Chairman Madden's HB 1915.

Lives of the Saints: Private Prison Edition

Earning him a nomination, to be certain, for Patron Saint of the Texas Prison Bidness Blog, state Rep. "Mando" Martinez yesterday filed HB 2589 that reads like a wish list for private prison reform advocates.

It requires a public hearing in each commissioner's precinct before counties approve contracts with private prison firms. It disallows local officials like Sheriffs to personally benefit from private prison deals involving the county jail, as was happening for a while, for example, in Waco.

And my own personal, sentimental favorite is the open records portion of the bill: "Information collected, assembled, or maintained by a private entity that is not a governmental body in connection with the operation, maintenance, repair, or construction of a detention facility or related facility operated under contract with the county under this subchapter is subject to Chapter 552, Government Code, in the same manner as information collected, assembled, or maintained by a governmental body, but only if the information is related to the operation, maintenance, repair, or construction of the facility." That makes sense on (at least) two levels. One, the taxpayers should get to know what they're paying for. Two, private prison contracts require oversight or they can devolve into an ugly mess, so making such  records open lets outside researchers, advocates, journalists, etc., assist in that already public function. (Think of it as crowdsourcing.)

That said, sainthood requires two miracles. Filing such legislation may earn Martinez beatification, but passing it would be the second miracle that will allow our friends at TPB to begin work on his hagiography. Either way, that's a really good bill.

Legislation in Senate committee would overhaul Task Force on Indigent Defense

State Sen. Rodney Ellis has a substantive bill up today in the Senate Criminal Justice Committee, SB 170, which I'm told would implement recommendations from the legislative working group of the Task Force on Indigent Defense - basically overhauling and renaming the agency.

The bill provocatively includes in its caption the "reorganization of funding sources for indigent defense," so I'm sure a lot of folks at the county level are paying close attention. I haven't had time to read and digest it myself, but here's a bill analysis I received from Sen. Ellis' office describing the contents of the committee substitute. Also, the good folks at the Texas Criminal Justice Coalition forwarded me a copy of Ana Yañez Correa's testimony to the committee on the subject, which I've uploaded here, for those interested in more detail. And here's a brief summary from the Task Force on Indigent Defense.

FWIW, I still don't understand exactly what is a "private defender" - an indigent defense system formalized in the legislation - or how it works differently from assigned counsel, but that's why these bills get hearings, so all that stuff can be publicly discussed.

Oppose legislation that could prevent reporting police misconduct, bloat budget

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

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

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

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

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

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

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

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

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

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

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

Cutting "perks" won't achieve budget reductions required at TDCJ

Mike Ward at the Austin Statesman has a story on the practical application of a theme that state Rep. Jerry Madden has been promoting - "cutting perks not people" at TDCJ - that, despite my great respect for the Corrections Committee Chairman, to me seems like rearranging the deck chairs on the Titanic. Reports Ward:

In recent days, the prison employee perks have been targeted by legislative leaders, who say that, with the state facing the largest revenue shortfall in more than two decades, costly employee entitlements need to go.

"We should be cutting perks, not people," said state Rep. Jerry Madden , R-Richardson, who heads the House Corrections Committee. "Before one state employee is laid off, we need to look at cutting a lot of these perks — including the housing."

Other legislative leaders and correctional officers union officials agree.

"When they're asking correctional officers to take a pay cut, and cutting programs and other areas, it's time for the upper management to give it up," Brian Olsen, executive director of a correctional employees union, said of the subsidized housing.

Eliminating employee housing entirely would save the prison system only a fraction of the tens of millions of dollars agency leaders need to cut. But such perks may be increasingly hard to defend as proposed budget cuts throughout state government lead to layoffs of tens of thousands of public school teachers and possibly the closing of nursing homes across the state.

If this is merely symbolism, so be it. There will be a lot of symbolic cuts in the budget this year and if employee housing is one of them, it will be regrettable, if far from tragic. But nobody should be fooled for a moment that fiddling around with such small amounts is really tantamount to budget cutting at TDCJ on remotely the scale that's been requested of them. Both the draft House budget and the Governor recommended cutting $786.4 million from TDCJ's requested biennial budget; in the Senate, they recommended slashing $583.6 million. To cut that much, the Legislature must begin to believe impossible things.

Especially after the 2003 round of budget scrubbing, there just aren't enough "perks" left at TDCJ to get anywhere near the amounts required. To get into the mid-to-high nine figures in biennial cuts at TDCJ requires closing more prisons and eliminating staff. The longer the Legislature pretends otherwise, the less likely they are to come up with a viable solution and the more likely they are, by default, to acquiesce in TDCJ's wrong-headed cuts focused on treatment, diversion and community supervision.