Prison healthcare budget falls predictably short

This news should come as no surprise to Grits readers, but Mike Ward reported in Friday's Austin Statesman ("Report: Texas prison health costs higher than thought," May 6) that:

The cost of providing health care to Texas' 154,000 imprisoned criminals during the next two years will likely exceed the amounts allocated in both the Senate- and House-approved versions of the state budget, a new financial analysis shows.

The report on the University of Texas Medical Branch at Galveston's costs appears to validate the university's earlier assertions that it was losing money on providing the care, and it projects that the prison care could cost $930 million over the next two years — far more than either legislative chamber has appropriated so far.

The new figures counter an earlier "report that triggered intense criticism of the medical school and has prompted a lobbying rush by private companies who contend they can do the job for much less." Bottom line, the latest analysis found that:

In recent years, UTMB and Texas Tech have claimed losses totaling more than $60 million for providing the care, requiring supplemental appropriations several times from the Legislature.

The new financial review projects that the losses will continue for UTMB. Texas Tech costs were not examined.

In 2010, the summary shows, UTMB lost as much as $26.8 million — with actual costs listed at $436.1 million, for which the university was paid only $409.3 million.

During the 2012-13 budget period, the report estimates, the costs for UTMB to provide prison health care could range from $879.6 million to as much as $930 million — depending on whether costs for some physicians, interns and residents are included.

Madden acknowledged that the numbers in the report are significant, "if they prove correct, which I think they will."

This should come as no surprise; it was predictable and predicted; Grits calculated when the budget passed that prison healthcare was underfunded by $126.5 million over the biennium, and here we are, facing projections right at that amount. The lesson: It's possible to significantly cut prison health costs, but not without reducing the size of the prison population. They can't just cut on paper; the state must change policies to reduce costs.

Reality check on mental health funding lacking at lege hearing

Dr. Floyd Jennings, who is special resource counsel to the Mental Health Division of the Harris County Public Defender, posted an account on Karen Franklin's In the News blog of his first experience giving invited testimony to the House Criminal Jurisprudence Committee last month. Grits happened to be in the room when Dr. Jennings gave his testimony, and at the time I didn't have a chance to comment on an odd and telling discussion he referenced in his account:

I learned that the lucidity of the argument may have little consequence. I was upbraided for failing to provide the legislature with specific means of cost savings through transfer of mental health services to the "private sector", although there is no private sector entity with the duty to provide mental health services to the chronically mentally ill on a statewide basis. And even if existing, no private sector entity has the resources to provide such. The tone of questions made it plain that legislators would prefer to have government provide all the goods and services that governments rightly provide, but at no cost, or with private sector funding.

Rep. Wayne Christian was the main legislator pushing Jennings for a "private sector" solution for mentally ill defendants in the justice system. It was at times an almost abusrdist discussion: Around the room, looks of befuddlement flashed across most faces in the audience as the same questions ran through everyone's mind: What "private sector" services is Christian talking about? Does he understand Jennings is discussing mentally ill homeless people cycling in and out of the jail? Who believes there is a "private sector" solution for that? The private sector needs customers to be economically viable, and the only customer in sight who might pay for treatment of indigent, mentally ill defendants is government. I can understand Dr. Jennings frustration; the exchange was flat out surreal.

I get that Rep. Christian doesn't want to spend more money, but that particular discussion needed a serious reality check. Since he and others on the committee at times didn't seem to grasp Jennings' key points, I'll close by reiterating them here in his own words:

the charge of the committee was to address whether alternative sentencing for mentally ill persons would be desirable. I argued simply that no changes in sentencing were needed -- because it would be difficult to craft, impossible to implement as it would trade on definitions of applicability, and moreover, courts already have the option of considering a defendant's state of mind as either mitigating or exculpating.

On the other hand, diversion strategies for the lower-level misdemeanor offender could have enormous cost benefits and not compromise public safety. As well, pre-trial jail psychiatric services could be provided at modest direct cost through the use of physician extenders, and provide just that opportunity for stabilization necessary to enable rapid disposition of the matter, shortening any period of confinement. Finally, I argued that opportunities for post-disposition placement tiered to the acuity of the person would dramatically reduce recidivism.

Jennings was sensibly suggesting counties and the Lege spend pennies to save dollars. Christian, by contrast, would have the state save pennies today, even if it means the dollars required tomorrow are compounded. Ironically, Jennings' is actually the more fiscally conservative view.

Texas justice initiatives presaged changing public opinion on reform

Could Texas' closed Central Unit in Sugar Land "symbolize a new approach to justice in America?"

PBS' Need to Know posed that question Friday evening in a 25-minute feature on Texas corrections reforms and the state's closure of its first-ever prison unit in last year, interviewing state Sen. John Whitmire in the bowels of the now-empty Central Unit. "You can't build your way out of the problem," said Whitmire. "If you don't deal with the root causes of crime, you'll never, ever have enough prisons. You'll bankrupt your state." The closed prison unit, said the chairman, is "the evidence we need that we're doing something right, and we're not compromising public safety." At one point, Whitmire said "most" of the 12,000 women locked up in TDCJ probably don't need to be there.

PBS also interviewed outgoing House Corrections Chairman Jerry Madden who recalled how, when he was named Chairman in 2005, House Speaker Tom Craddick called him in and said eight words to him that "changed my life": They were, "Don't build new prisons, they cost too much." Madden estimates that so far Texas' reforms have saved the state around $2 billion.

In a blast from the past, the story quoted Gov. Rick Perry's 2007 State of the State speech, showing a clip where the Governor declared that "There are thousands of non-violent offenders in the system whose future we cannot ignore. Let's focus more resources on rehabilitating those offenders so that we can ultimately spend less locking them up again," he advised to hearty applause. Another nifty quote: "Doing the intelligent thing is not being soft," said District Judge Robert Francis, who runs a reentry court in Dallas.

The reporter marveled that with Texas' reforms diverting thousands from prison, crime rates continued to fall even as incarceration rates declined. And Jeff Greenfield interviewed Adam Gelb from the Pew Center on the States to ask if Texas' "experiment" might become a "national movement." Gelb discussed how conservatives like those who've signed onto the Right on Crime principles are able to get to the same place on the issues as moderates and liberals, often agreeing on outcomes for different ideological reasons.

Relatedly Gelb's colleagues at the Pew Center on the States just released a public opinion poll which affords reason for optimism that the public would support further changes along these lines. Among the top line findings:

• American voters believe too many people are in prison and the nation spends too much on imprisonment.
• Voters overwhelmingly support a variety of policy changes that shift non-violent offenders from prison to more effective, less expensive alternatives.
• Support for sentencing and corrections reforms (including reduced prison terms) is strong across political parties, regions, age, gender, and racial/ethnic groups.

Here's an image providing more detail from the national survey (pdf) of 1,200 likely voters:

Moreover:

For reasons about which we can only speculate, public opinion appears to have shifted on questions of mass incarceration. Asked “Do you think there are too many people in prison in the United States, not enough people in prison, or is the number of people in prison about right?,” The results were:

Too many: 45%:
About right: 28%
Too few: 13%
Don't know: 14%

On average, said Pew, voters think about 20% of US prisoners could be released without harming public safety.

Remarkably, 69% supported the statement, “One out of every 100 American adults is in prison. That’s too many, and it costs too much. There are more effective, less expensive alternatives to prison for non-violent offenders and expanding those alternatives is the best way to reduce the crime rate,” with a whopping 50% saying they "strongly support" it. Among major state budget items, more voters said they were willing to cut prisons (48%) than any other area of government.

Fully 77% of voters agreed that “Our spending on corrections has grown from $10 billion to $50 billion over the last twenty years but we are not getting a clear and convincing return on that investment in terms of public safety,” including 76% of Republicans surveyed.

Equally fascinating is that common tuff-on-crime messages are beginning to lose their appeal. Asked if they agreed with the statement, “People who commit crimes belong behind bars, end of story. It may cost a lot of money to run prisons, but it would cost society more in the long run if more criminals were on the street,” just 25% said they supported it (15% strongly support). The public just isn't buying that common argument anymore, according to these data.

Reports like these give me hope that Texas may continue down a reformist path despite considerable political uncertainty. It's purportedly a Chinese curse to wish on another that they "live in interesting times," but without question we certainly do.

What impact of Texas legislative turnover on criminal justice reform?

The Austin Statesman's Tim Eaton has a political analysis of the likely makeup of the Texas House next year, projecting that Republicans will lose seats in the lower chamber but still hold onto 60% or more and ideologically are likely to become more conservative. Further, between unusually large turnover in 2010 and a large number of retirements, there will be more relatively inexperienced legislators in the Texas House, D and R, than any time probably since the aftermath of the Sharpstown bank scandal. Reports Eaton:

Inexperience will also contribute to molding the House's personality.

With 38 freshmen in 2011 and maybe 30 newbies in 2013, the 2013 session could have the most inexperienced collection of members in more than 30 years, Jillson said.

Rep. John Smithee, a Republican from Amarillo with 27 years of experience in the state House, said he can imagine a situation in which there will be more first-term and second-term lawmakers in the House than he has ever seen.

Smithee said it will be difficult to replace some of influential members, who will be leaving for a variety of reasons — personal, professional and political considerations.

"The biggest impact will come from the loss of lots of institutional knowledge," he said. "It's a big loss."

Some Republican legislative leaders who will depart include: Reps. Burt Solomons, R-Carrollton, and chairman of the Redistricting Committee; Will Hartnett, R-Dallas; Jerry Madden, R-Richardson, chairman of the Corrections Committee; Beverly Woolley, R-Houston; Warren Chisum, R-Pampa; and Jim Jackson, R-Carrollton, chairman of Judiciary & Civil Jurisprudence Committee.

The Democrats are losing relatively few important members, such as the soft-spoken Rep. Pete Gallego, D-Alpine, who chaired the House Criminal Jurisprudence committee, and Rep. Scott Hochberg, D-Houston, an expert on school finance. The result of the Democrats remaining largely intact could be greater influence for the party, Acuña said.

But the exodus of long-serving and powerful members also represents opportunity for younger members to fill important committee chairmanships.

On the criminal justice front, of special concern is who fills the chairmanships at the Corrections and Criminal Jurisprudence Committees. On Corrections, Jerry Madden earned a national reputation as a co-author with Sen. John Whitmire of Texas' 2007 probation reforms, while as chair of Criminal Jurisprudence, Pete Gallego was the House sponsor/author of several key innocence reforms including Texas' new eyewitness ID statute. Who replaces those men will tell us a lot about the direction those committees might take, and by extension what might be possible in 2013.

There's a pretty impressive record of criminal justice reform since Texas has been under Republican control, so there's not inherently anything to fear for reformers from the Legislature's continued partisan tilt. More concerning, arguably, may be legislators' relative inexperience. As a general principle, a legislative body awash with inexperienced members bodes poorly for criminal justice because every politician knows as a default  it's safe to run as "tuff" on crime. It takes time to learn the byzantine, interconnected reality of the justice system involving a vast alphabet soup of different local, state and federal actors. There are also many other issues much higher on voters' priority lists, so these subjects mostly aren't coming up in campaigns. Thus, once  at the capitol, inexperienced legislators can become paralyzed, willing to vote for enhancements and new crimes because it looks "tuff," but fearing to reform a system they don't understand yet. By the time a legislator has spent several sessions on the Corrections Committee, for example - hearing testimony, having been lobbied by prosecutors, police unions, chiefs, Sheriffs, not to mention judges, cities, counties, and reformers, delving into the details of recurring, longstanding political squabbles - it becomes (a little) easier to apply one's own principles to specific, real-world problems. That's impossible to do when folks don't even understand what the institutions are and how they work together, plus our short, biennial sessions mean there's not much time for learning on the job.

OTOH, depending on the issue, it's also possible a wave of new, ideologically committed conservatives could take on criminal justice issues that haven't received much focus. At the end of the 2011 session, freshman Rep. David Simpson made Fourth Amendment rights at TSA searches in airports an issue and used grassroots conservative clout to muscle the provision further through the process than anyone thought possible. In my experience, Fourth Amendment issues are ripe for attention by conservatives who really do want government out of our private lives. Much of the grass-roots base supports it, even if the establishment types in the GOP continue to kowtow to the tuff-on-crime crowd.

Moreover, the 2013 Texas Legislature faces a yawning budget gap that will have every pol in the building, freshmen and sophomores included, scratching for budget savings in ways that, on criminal justice, potentially benefit reformers looking to scale back mass incarceration. Unlike education and healthcare, prison spending is one of the few areas the public won't howl like scalded cats in the face of large spending reductions. Indeed, the Lege was mostly praised last year when Texas closed its first prison unit ever since the founding of the Republic. There aren't many other parts of the budget you can point to where cuts earn praise from the public instead of disapprobation. So if the type of draconian cuts threatened at the beginning of last session actually came to fruition, ironically prisons may be one of the politically safest places to cut

Of course, in the real world the Lege can't reduce prison spending significantly without changing incarceration policies. The Lege on paper reduced the budget for prison healthcare last year by around $100 million over the biennium, then TDCJ almost immediately began paying $5 million per month extra while they renegotiated healthcare services, an amount greater than the Lege had cut. Real savings must come from actually reducing the burden on government - bolstering less expensive community supervision while reducing high-cost incarceration to the greatest extent possible. There are an array of possible policy mechanisms to achieve that goal, but with so many new members and so much of the leadership in flux, it's difficult to say whether the Lege will embrace reform or, as happened on so many issues last session, just kick the can further down the road with band-aids and accounting gimmicks.

Bottom line, oversimplifying only a tad: If Small-Government Conservatives act on their principles on criminal justice, generally reformers win. When Big-Government Conservatives side with Big-Government Liberals - which historically has happened much more often - we get penalty enhancements and tuff-on-crime demagoguery. With so much in flux, my crystal ball is hazy regarding which outcome to expect. Texas government finds itself, both politically and financially, in an extraordinarily uneasy transition moment, with such questions largely held hostage by dynamics which are utterly unrelated to public safety and effective criminal justice policy.

Jail dominates Harris County Sheriff budget whether candidates acknowledge reality or not

Big Jolly has posted a hagiography candidate interview featuring Louis Guthrie, the GOP frontrunner to challenge Adrian Garcia for Harris County Sheriff, who Jolly declares is "a natural born leader," adding that he "couldn’t blame [Guthrie] if he thought I had a man-crush on him."

With Jolly temporarily blinded by his love-goggles, Grits wanted to hone in particularly on the utterly unrealistic discussion of the budget from the challenger. Ironically, his stances mirror positions taken and promises made by Garcia when he first ran for Sheriff, most of which crashed upon the rocky shores of economic reality almost immediately after he took office. Here's the segment (in full) of BJ's post on the budget:

About the budget, I’ve mentioned before (here and here) that most of the primary candidates think that the budget must be increased. Mr. Guthrie was a bit more nuanced in our discussion than he was in the forums – during the forums, he stated that his relationship with Harris County Commissioners Court would result in a larger budget. I asked him point blank if that meant that the Court was playing partisan politics and not giving Sheriff Garcia the resources he needed. His answer was no, that the budget under Garcia had grown and would continue to grow. What he meant was that the Court would see that he was prioritizing the resources better than Garcia and they would be more apt to give him what he asked for versus them seeing that Garcia was building up his command staff and not boots on the ground.

A glaring example of what Sheriff Garcia has done was noted in the Houston Chronicle today in a report by Anita Hassan:

Also, county budget cuts have suspended testing in the auto theft division for now. But overall, testing can help to solve more crimes as well as prevent them, Wilson said.

“If you catch one of those guys (car burglars), you can prevent dozens of them over a period of months,” he said. “They are out there every single day driving those parking lots in every part of this city and county looking for targets. If you get one of them off the streets, there’s no telling how many you may have prevented.”

I asked Mr. Guthrie about this report and he replied:

“Touch DNA is just one of many exciting new techniques now used to help solve crimes that were previously relegated to the “closed with no investigation” file.  While the current Sheriff has created most of his own budgeting problems, cutting funding for programs that help put burglars behind bars is a poor choice for the taxpayers.  Garcia could easily trim fat from his bloated command staff and instead put dollars to work solving crimes and putting more boots on the ground.  That would have a real impact of improving public safety in Harris County.” Louis Guthrie

We talked about the budget for quite some time. I was impressed with his detailed knowledge of how the department works, down to the supplies issued each deputy. I was a bit surprised by this because his highest rank in the department had been Lieutenant and budgeting is typically done by the Captains. He told me that he took it upon himself as a Lt. to break down the numbers passed down by his Captain because he wanted to be certain that taxpayer money was being utilized efficiently.

Two things jump out at Grits here. First is Guthrie's utterly unrealistic portrayal of the budget, pretending that demoting a few senior commanders will allow him to put more "boots on the ground" at a time when the county is paying millions annually in overtime to staff the jail (which is the 800 lbs. gorilla dominating the Sheriff's budget). I replied thusly in the comments:

Hey Big Spender!! So Garcia’s budget is too big, says Guthrie, but he would increase it more? I call BS.

In reality (i.e, outside the campaign trail), the Sheriff’s Office is primarily about running the jail. Garcia cited all the same data and made all the same promises about more patrols when he first ran, then once elected he had to confront reality and had to spend all his budget cushion on overtime for jailers to meet minimum state standards. What “efficiencies” will Guthrie install to change that situation? Nada. Command salaries are a drop in the bucket compared to overtime. If you or anybody believe Guthrie won’t be subject to PRECISELY the same budget dynamic, you’ve got another think coming. Such campaign promises are completely detached from reality.

Voters may not recall, but Sheriff Garcia rode into office four years ago promising to boost patrols in unincorporated parts of the county, then discovered after ascending to the job that his main responsibility is managing the jail and every extra dollar he could lay his hands on had to go to pay jailers' overtime. If Guthrie replaces him, four years from now he'll face a challenger making the same BS criticisms and promises because what he's suggesting is not real and cannot happen given current budget realities. These are not partisan issues, nor even ideological ones. They are difficult, practical economic and management questions on which neither Guthrie nor any other candidate may legitimately claim higher ground. Like Garcia when he made the same promises in 2008, either Guthrie doesn't understand the big picture or he's just blowing smoke up voters' collective ass.

Finally, BJ references an interesting story out of the Houston Chronicle on using "touch DNA" to solve property crimes, criticizing Garcia for not using the technology for car burglaries after the Commissioners Court cut the program's budget. I understand identifying something voters don't like (car burglaries) and blaming one's opponent for it is a typical campaign tactic, but the critique misunderstands who controls the budget strings at the Sheriff's office. The county commissioners court makes that call, not him. Besides, it's difficult to overstate the extent to which using touch DNA in nonviolent offenses would quickly overwhelm crime labs and property rooms. As Grits wrote in January, "The advent of 'touch DNA' and the expansion of DNA evidence to nonviolent offenses like burglary mean the near-term growth potential for DNA examiners may be limited only by how much state and local governments are willing to pay for them." In Harris County, for the foreseeable future, those demands for funds must get in line behind overtime spending for jailers. Changing the party designation of the Sheriff from D to R wouldn't alter that dynamic in the slightest.

RELATED: Here's Charles Kuffner's interview with incumbent Sheriff Adrian Garcia.

Medical paroles plummeting while TDCJ-UTMB wrangle over healthcare costs

The Dallas News reports ("Fewer seriously ill Texas inmates being released on medical paroles," Feb. 20) that medical parole rates are at their lowest in years and that Texas' Board of Pardons and Paroles may approve fewer medical paroles in FY 2012 (they'll hit 33, at the current rate) than at any time in recent memory, despite TDCJ facing prison healthcare costs more than nine figures greater than the Legislature budgeted.:

Each of the past three fiscal years, the Texas Department of Criminal Justice said its medical providers — the University of Texas Medical Branch at Galveston and Texas Tech — referred more cases for medical release. There were 1,318 referrals in 2009 and 1,807 cases in 2011.

Another government office, the Texas Correctional Office on Offenders with Medical or Mental Impairments, narrows that pool and presents cases to the state Board of Pardons and Paroles.

In fiscal year 2011, 349 cases were formally presented for medical release, and 100 cases, or 29 percent, won approval. The previous year, 22 percent were approved. Almost always, the parole board makes the decision. In a few state jail cases, the sentencing judge decides.

Each year, some inmates approved for release die before they can be freed or their cases are reconsidered.

So far this fiscal year, from September through December, the board has approved only 16 of the 125 cases presented, or 13 percent.

The Legislative Budget Board, which monitors state spending, told lawmakers in January 2011 that expediting the release of inmates who need high-cost medical care could save the state an average of $10,545 per year per inmate. The board noted that inmates are not eligible for Medicare or Medicaid while in prison, so the state pays the full cost of care.

Strange and troublesome - from the perspective of reducing prison medical costs - that in 2011, doctors recommended more than 1,800 people for medical release, but only 349 were presented to the board, which approved less than a third of those. Most inmates/patients recommended by their doctors for medical parole are getting screened out by TDCJ parole staff (according to some criteria not described in the article) before the board ever hears about them.

The Board of Pardons and Paroles, of course, is functionally separate from TDCJ, but historically they have acted somewhat in tandem, particularly back when Rissie Owens' husband, Ed, ran TDCJ's institutional division. So it's a bit of a surprise that the parole board isn't doing more to help TDCJ out on the health-cost question, though of course they're under no obligation to do so.

Grits recognizes the board has discretion, but they should at least consider all the recommendations doctors send them. TDCJ is seriously over-budget on health care, with its major provider (UTMB) at this point outright rebelling, so paroling some of the sickest, most expensive inmates could help relieve pressure. I'd have expected to see them considering and approving more medical paroles in 2012 given the current funding situation. As it turns out, it's been substantially less.

'How game theory is reinventing crime fighting'

From Governing magazine, a pair of stories again featuring Texas 2007 probation reforms as a a watershed event:

How game theory is reinventing crime fighting
and
Conservatives question the war on drugs

From the lede of the first story:

Three years ago, a group of conservative legislators from California slipped off to Texas. Among the purposes of their visit was to learn more about a new approach to controlling crime. The strategy involved investing in community corrections, not new prisons. The somewhat surprising thing was that the plan had been developed in Texas, with strong support from conservatives. Texas, after all, is a state that prides itself on being tough on crime. It executes more inmates than any other state and incarcerates the highest percentage of its population of any big state.

For two decades starting in 1985, Texas had built prisons with gusto, increasing by 300 percent the number of inmate beds. But in 2007, when Gov. Rick Perry produced a budget that asked the Legislature to appropriate $523 million in additional funding for three new prisons -- with more prisons to follow -- legislators balked. Instead, lawmakers decided to invest $240 million in diversion and treatment. By all accounts, this approach has been working. There have been declines in ongoing crime. Parole violations have plummeted. Prison overcrowding has eased.

Texas’ success intrigued the California delegation, but it didn’t inspire them to follow suit. Facing a strong prison workers’ union, opposition from district attorneys and a general unwillingness to relinquish the one tool -- being tough on crime -- that had worked for the GOP in the Golden State, the Californians listened but left with no game plan. “I think they honestly wanted to get something done, but they really felt they couldn’t do anything,” says Texas Rep. Jerry Madden, who was at the meeting as one of the architects of corrections reform in his state. “There were too many other influences they had in their system. It was almost an impossible situation for them.”

Today, California’s corrections system is a trainwreck. The state prison system is so overcrowded that the U.S. Supreme Court recently ruled that conditions violated the Constitution’s 8th Amendment ban on cruel and unusual punishment. Unable to balance its budget, California is currently in the process of shipping 40,000 state inmates to county jails. Texas, meanwhile, has become a model for corrections reform. Last year, at least 11 states, including Arkansas, Kentucky, Ohio and North Carolina, undertook similar sweeping corrections reforms with the intention of limiting the growth of their prison populations. This year, states as diverse as Georgia, Oklahoma, Missouri and Hawaii are expected to take up corrections reform based on ideas that have played out successfully in Texas.

“The Texas story helped spawn a wave of reforms around the country,” says Adam Gelb, who directs Pew’s Public Safety Performance Project. “We hear over and over, ‘If Texas can do this, [the approach] can’t possibly be soft on crime.’”

Cost clearly has been a major impetus for reform. Between 1985 and 2008, state prison populations nearly tripled. According to the Vera Institute of Justice, corrections spending rose even faster, by more than 600 percent. It now makes up 7 percent of state general fund spending. But cutting costs is only part of the story.

Ideas matter too. When crime began to spike in the 1960s, criminologists and public policy experts responded with a simple and compelling proposition: Lock away more people for longer. Today, new ways of thinking about public safety -- some of them rooted in game theory, behavioral economics and sociology -- are challenging the perceived wisdom about how to improve public safety and reduce incarceration rates.

Game theory seeks to understand what constitutes a rational course of action in situations where other people’s responses determine outcomes. For decades, academic game theorists have explored how promises, commitments, threats, the elimination of options, and other tactics can affect outcomes and the resulting “equilibrium.” In Texas and in a growing number of states and cities across the country, policymakers have found a smarter approach based on a new generation of research that applies insights from the world of game theory to the criminal justice system. It’s still a very new concept, but the resulting body of work is pointing policymakers toward new and potentially transformative ways of improving public safety while reducing the number of people behind bars. It also grapples with one of the most notable -- and appalling -- features of what some have called the current era of mass incarceration: its destructive effect on many African-American communities.

“Our crime rates have been dropping for nearly 20 years,” says Madden, “but we still have a greater demand for prisons. Why is this?”

A number of cities and states are asking the same thing. In response, elected officials across the nation from both political parties have begun to examine ways to replace a “tough” corrections policy with a “smart” one.

I'm glad Texas 2007 reforms are still getting national attention, but less sanguine about the fact that during the last 2011 session, the Texas Legislature slashed the prison budget without concomitant reforms, setting TDCJ up for a near-immediate budget crisis over rising healthcare costs. (They're reportedly paying $5 million per month over the budgeted sum while they're negotiating with UTMB.) So while the Lege defintely accomplished something original with Whitmire and Madden's 2007 budget efforts, they failed to build on that work in the last session, instead authorizing thousands of additional prison beds and passing dozens of new crimes and penalty enhancements.

Texas opereates a massive prison system and the 2007 reforms staved off new prison  building by diverting a small fraction from prison on the front end, as well as creating a handful of "intermediate sanctions" facilities that judges have the option to use. But other long-term trends - like the drug war, overcriminalization and the continued expansion of criminal law as seemingly the sole politically acceptable tool to confront every new social problem - continue to inflate the the system needlessly beyond its capacity. They  failed to take that next step in 2011, but budget circumstances may force their hand by 2013.

Prison costs won't be foremost on legislators' minds next year - budgets for schools and health care will be billions in the red, compared to perhaps several hundred million less available for TDCJ - but the legislators charged with budgeting for them will be confronted with a similar question: Grow and tax or how to safely cut? Since the former is politically unthinkable for anyone hoping to weather a GOP primary, it behooves members to think seriously about the options for doubling down next year on their 2007 successes. Perhaps all the national recognition of that important first step will encourage them to guide the system further down that path.

TDCJ board chair: Future prison closures possible

Reader Texas Maverick emails to point out this passage from the board minutes (pdf) of the Texas Department of Criminal Justice's August 2011 meeting:

Chairman [Oliver] Bell commented that the closure of the Central Unit has been a positive story and stated he was pleased the current trends have allowed the board and the TDCJ to be able to close a unit. The Central Unit has been studied for closure for the last six to eight years. Crime rates are down and offender populations are relatively flat. If the trends continue, Chairman Bell stated it might be possible more prisons could close in the future.

TDCJ executive director Brad Livinsgston told the board that "the closure of the Central Unit is a success story that the TDCJ can tout." I'm glad that's the board's perception. Given the budget situation, they'll need more of the same in 2013 to avoid prison costs spurring significant tax hikes.

UTMB begins "transfer" of prison health services to TDCJ; are they up to it?

At the Galveston Daily News, Heber Taylor reports that, despite months of negotiation between the Texas Department of Criminal Justice and the UT Medical Branch (UTMB) over providing inmate health care:

there is no agreement.

Dr. David L. Callender, president of the medical branch, let the staff know that the transition has begun to transfer the health services to the corrections department.

The basic problem is money.

The University of Texas System has made it clear its not going to continue to subsidize care for prisoners from university funds.

The Texas Department of Criminal Justice didn’t get the money from the legislature to pay the full cost of the care.

This is not the kind of problem two state agencies can resolve.

Somebody with money simply has to pay the bill.

Ordinary taxpayers should be watching this because the state’s not going to save money by taking the Correctional Managed Care Contract away from the medical branch.

This arrangement is still a good fit in terms of controlling costs. Finding the money to pay for this contract would be cheaper than starting over again with new contractors. 

I don't necessarily believe TDCJ is prepared to take over prisoner healthcare, either from a financial nor a management perspective. Nor did I understand the failure of legislative leadership that allowed this festering problem to linger beyond last session, when it was already coming to a head. Taylor's right - this isn't an issue two state agencies can negotiate away.

In truth, after UTMB was basically told by Senate budget writers they shouldn't end the contract, I'm surprised the university feels they have the authority to back out. They're definitely thumbing their nose at Senate Finance Chairman Steve Ogden, perhaps because he's retiring from the Lege this term and won't be around to haunt them in 2013 for their defiance. (After all the Aggie senator did for UTMB after Hurricane Ike, it's particularly a slap in the face.)

Meanwhile, privatization isn't really an option, either, at current funding levels, even if that's the Governor's preferred option. Various companies (and UTMB, for that matter) want the hospital contract, which is more lucrative, but nobody really wants to contract for clinic-level care unless the Lege ponies up more money.

Bottom line: The Lege this year cut the prison health budget but failed to reduce incarceration levels, meaning demand for services wasn't commensurately cut. Texas already has among the lowest per-prisoner health expenses in the country and it's unlikely the budget can be lowered as long as we incarcerate nearly 160,000 people. The cost of overincarceration has finally caught up with Texas, and the expense is greater, even, than just TDCJ's budget.

This is a fish-or-cut-bait moment. Before next session, the state must decide how to deliver prison healthcare on a shortchanged budget. But when the Lege meets again in 2013, to avoid nine figures in additional expenditures at TDCJ, they must change policies to reduce the number of people incarcerated. Any other option will yield the same untenable result as the last budget, magnified several-fold.

Montgomery County seeks to reduce jail costs from mentally ill

The Conroe Courier yesterday had the story of a new mental health docket in Montgomery County (using "managed assigned counsel," whatever that means) created with a grant from the Texas Indigent Defense Commission aimed at diverting mentallly ill defendants from the jail:

In the past few days, the county launched its managed assigned counsel program for indigent defendants to focus on representing defendants with mental health issues. Sara Forlano, a former assistant county attorney for Montgomery County, recently left private practice to start up the new program.

The county also will have a mental health court docket to closely monitor probationers with serious mental illness, according to a press release. The programs were created through a $487,000 grant from the Texas Indigent Defense Commission, and supported by matching funds from the county.

The managed assigned counsel would work with an oversight board, whose members commissioners approved in February.

“The goal of this program is to lower the rate of recidivism,” Judge Cara Wood, of the 284th state District Court, stated in the release. “There is a high rate of recidivism among this population.”

Williamson County saved $3.2 million from 2005-08 through reduced jail bookings and necessary medications in jail, while Bexar County has saved “at least” an estimated $5 million annually through a similar program, Wood previously told commissioners.

“We anticipate the same or similar savings to our county,” she said in February. “And we never want to lose sight that it’s the right thing to do.”

Wood previously said approximately 600 indigent defendants would be served by the program.
The cost to house a mentally ill person in jail is about $55,000 per year, while the cost for a typical inmate is about $20,000 a year, she said.

23% of Texas prison spending outside of TDCJ's budget

According to a new report (pdf) by the Vera Institute, "Texas taxpayers pay an average 23 percent more for state prisons than the state’s annual corrections budget reflects," reports Mike Ward at the Austin Statesman: "The new report by the Vera Institute of Justice, a New York-based research organization that tracks criminal justice trends, calculates the state’s total costs for its adult corrections and prison programs at $3.3 billion — almost $783 million higher than the $2.5 billion annual budget for the Texas Department of Criminal Justice." Wrote Ward:

While Texas’ costs were 23.7 percent higher with the associated additional costs, other states ranged from 1 percent higher (Arizona) to 34 percent (Connecticut). Texas was one of six states — Connecticut, Illinois, Missouri, New York and Pennsylvania — where between 20 and 34 percent of the corrections budgets were outside the prisons system budget.

When all costs are considered, the annual average taxpayer cost in these states was $31,166 per convict, according to the study. In Texas, the cost is $21,390 a year per convict.

See the full report, The Price of Prisons: What Incarceration Costs Taxpayers, here.

Factors outside of TDCJ's budget included employee benefits and taxes, underfunded pension benefits and retiree health contributions, retirement costs, judgments and claims, and statewide administrative costs. I wonder what the folks at the Legislative Budget Board would have to say about Vera's calculations, and whether they need to update their Uniform Cost Report (pdf) on corrections as a result?

Upward budget pressure at crime labs

A pair of stories from out of state underscore two sources of upward budget pressure at crime labs that Grits suspects apply equally here in the Lone Star State. Crime labs are expensive, labor-intensive operations, and Texas and other states have traditionally underinvested in them, leading to significant backlogs. Meanwhile, a combination of court rulings and technological innovation will ratchet up demand considerably for these services in the near term.

First, re: court rulings. In Melendez-Diaz and subsequent cases, Justice Anontin Scalia has led a US Supreme Court majority in reinvigorating the Confrontation Clause, requiring crime lab experts to testify in person (in order to be cross-examined) instead of simply sending written reports which cannot be interrogated. The inevitable result is crime lab scientists going to court more often, and in Arkansas, 42% of crime lab scientists' courtroom trips last year did not result in giving testimony, reported AP (Jan. 22):

The Arkansas Democrat-Gazette reported Sunday (http://bit.ly/wP2ZHQ ) that lab analysts such as DNA specialists, drug chemists and medical examiners traveled to county courthouses around the state but ended up not testifying 238 out of 573 times last year. That means 42 percent of the lab experts' court trips didn't yield any testimony in 2011.

I've never seen similar data regarding Texas crime labs, but I'll bet the Arkansas situation is not unique. After Melendez-Diaz (2009), it's almost inevitable crime lab scientists would go to court more often without testifying. Certainly the SCOTUS justices were aware of that fact during their discussion at oral argument. There's a pricetag associated with that judgment, however, and this story out of Arkansas is the first time I've seen somebody put a dollar figure to it.

Grits was also interested to see a story out of Connecticut, where the overwhelmed state crime lab established new guidelines discouraging agencies from submitting evidence:

Police agencies across Connecticut are now being asked for the first time to limit their submissions to the state lab under new guidelines that took effect Jan. 1. The state also plans to hire 25 to 35 new lab workers to reduce the backlog to a manageable level, but it may take two to three years before the new employees are trained and ready to work, said Michael Lawlor, criminal justice aide to Gov. Dannel P. Malloy.

The number of DNA cases that have not been started at the forensics lab in Meriden skyrocketed from less than 250 in mid-2006 to nearly 3,900 last year, according to the state Department of Emergency Services and Public Protection, which oversees the lab. During the same time period, the number of lab workers has decreased about 10 percent to 90. The wait for DNA testing in many cases is more than three years.

If no extra staff were added, officials say the lab's DNA unit by April 2013 would only be able to perform testing in felony cases that are reaching the statute of limitations for prosecution. The lab wouldn't be able to test samples in hundreds of other criminal cases.

The lab is also dealing with backlogs in other types of evidence testing, including nearly 1,700 firearms cases and 1,400 latent fingerprinting cases.

The state lab's backlog follows a national trend. DNA casework backlogs at labs across the country increased from about 38,000 in 2005 to nearly 112,000 in 2009, according to the latest available U.S. Justice Department statistics. In addition to an increase of samples from crime scenes, most states have passed laws requiring DNA testing of criminals, adding to many labs' backlogs.

The advent of "touch DNA" and the expansion of DNA evidence to nonviolent offenses like burglary mean the near-term growth potential for DNA examiners may be limited only by how much state and local governments are willing to pay for them.  Add to that forensic scientists spending more time in the courtroom away from the lab, and crime labs are being asked to do much more with fewer scientists available to perform the tasks.

This problem isn't going away: State budget writers will be grousing about crime labs as money pits for many years before lab capacity finally catches up to demand.

Florida to close 7 prisons, why couldn't Texas?

Florida recently announced they will close seven prisons and four work camps under a gubernatorial plan from Republican Rick Scott that's being tarred by Democrats and prison-guard unions as soft on crime and evidence of an "extreme Tea Party agenda." The state was able to close the units because of declining prisoner populations: “No inmates will be released early as a result of this decision, and there will remain adequate bed space to accommodate projected prison admissions, which have steadily decreased since FY 2007-08,” the corrections department said in a statement.

Regular readers know Grits believes Texas could have realized similar savings in the 82nd Texas legislature last year (we have more prisons and prisoners, by a longshot, than the Sunshine State) with just a few key policy tweaks, but the Lege instead cut funding, mostly for prisoner healthcare, without doing anything to reduce the inmate population. Within months, the state was paying $5 million per month over budget in an interim contract for healthcare costs with UTMB. When 2013 comes, if they want to cut TDCJ's budget they'll have to reduce the number of people incarcerated there.

Last week the Texas Public Policy Foundation held a panel at their annual policy conference (thanks to Marc Levin and David Guenther for the invite) featuring outgoing House Corrections Chairman Jerry Madden, chief Harris-County judicial cat-herder Caprice Cosper, House Rep. Marisa Marquez, and Adam Gelb from the Pew Center on the States.

Gelb's presentation focused on five "myths" about crime and punishment, but one of them spoke directly to the fallacy that "crime rates drive incarceration rates." In fact, he said, policy changes are the primary driver where states have reduced incarceration. That's how Texas avoided new prison building throughout most of the last decade, and it's the only way to reduce costs now.

Much was made at the event, and rightly so, of Texas 2007 investments in probation and diversion programs which have been oft-credited with keeping TDCJ's population 17,000 prisoners lower than had been projected five years ago. But in the "what have you done for me lately?" category, protecting those investments was the main accomplishment claimed for 2011.

In the Q&A section, I got to ask the panel why the Lege hadn't enacted more policy reforms to reduce inmate numbers and prison costs, "doubling down" on their earlier success to actually empty out and close prisons, as is happening in Florida. Madden replied that recidivism studies take three years and in 2011 they didn't have enough data to judge outcomes from the 2007 investments. While it's clear they worked overall, he said, the 2007 budget investments financed an array of different programs, and the Lege needed to wait on data to see which worked and which didn't to decide how to proceed.

That's a fair point, but in some ways the answer dodges the central conundrum facing the state on corrections spending. After all, the Lege slashed healthcare spending at TDCJ utterly without forethought or regard for reality, while failing to pass legislation that reduced the number of prisoners (particularly the sickest and/or elderly prisoners who cost the most money) commensurate with the smaller budget. Now, for this biennium, TDCJ will be coming in nearly nine-figures over budget, if the $5 million per month premium to UTMB continues, with 2013's budget expected to be even tighter. Last year they cut prisoner food, bled prisoner commissary accounts, reduced programming and educational opportunities, and likely cut all they reasonably can without addressing the elephant in the room: How can they change policies to reduce incarceration costs?

For the most part in 2011, that didn't happen, and there are few signs it's being seriously considered now (though one of the Senate Criminal Justice Committee's interim charges asks them to study diversion programs in part with an eye toward "reductions in correctional populations"). Tight budgets, though, have a way of forcing radical decisions on legislators that no amount of external advocacy could ever persuade them to make. At a minimum, it'd be helpful for TDCJ to reduce inmate numbers enough to end some of its contract arrangements with private-prison companies instead of paying for each marginal, extra inmate on a per diem basis.

As Chairman Madden pointed out on the TPPF panel, in the near future TDCJ's Sunset process is the most likely vehicle for enacting such fundamental reforms. Grits hopes the Sunset reviewers evaluate the agency and make recommendations with an eye toward revamping TDCJ to correspond to these new budget realities, strengthening probation and parole while seeking creatively ways to emulate Flordia, New York, Michigan, and other states which have reduced incarceration and shut down prisons. That's the recipe for budget stability in Texas corrections - a lot of insiders already know it - and really the question becomes more one of political courage than budget sense. In that context, tight budgets could force legislators to do the right thing for the wrong reasons, letting them scale back mass incarceration without paying the same kind of political price one might pay, say, from closing neighborhood schools, by pointing out that's the tradeoff. Caprice Cosper echoed that sentiment, saying the budget crunch was an opportunity to think creatively.

Time will tell. Texans like to boast, I commented to the panel, and Madden was right to boast about the 2007 budget reforms - they were a great accomplishment. I'm glad this session they were mostly protected. But it's time to acknowledge that their effects have pretty much played out and more will need to be done in 2013 to actually cut the budget, much less avoid new prison building (or expanding use of contract beds) by the end of the decade.

Harris County crime reduction undeterred by 31% fewer jail inmates

News of Houston's lowest murder rate in decades coincides with a seemingly a counter-intuitive report that the Harris County Jail population has declined 31% in the last three years.

Long-time readers will recall that, in a 2007 plebiscite, despite overcrowding and hundreds of prisoners housed in contract facilities as far away as Louisiana, Harris County voters rejected the issuance of debt for new jail construction. Writers like Grits and the Texas Public Policy Foundation's Marc Levin argued that policy changes by elected officials - particularly the District Attorney and judges - could resolve the problem a) without expensive new jail construction and b) without crime increasing, and it turned out that's exactly what's happened. Reports the Houston Chronicle's Mike Morris this morning ("Thanks to less crowding, overflow inmates staying in Harris"):

Dropping inmate numbers at the Harris County Jail will let the county end its nearly 5-year-old practice of shipping overflow inmates to Louisiana and other Texas counties within days, Sheriff Adrian Garcia said this week.

The jail population has fallen 31 percent since 2008, to 8,573 inmates. The jail has a capacity of 9,434, but has at times held more than 12,000. Garcia hopes the expense of contracts with far-flung jails - totaling $31 million in the last two years - has ceased for the foreseeable future.

As of Friday, the sheriff had no inmates in Louisiana and just 21 elsewhere in Texas; more than 1,600 inmates had been outsourced as recently as June 2010.

Grits finds this news downright incredible after being told time and time again by so many in offiicialdom how naive I was to oppose Harris County jail construction and how unrealistic it was to expect local officials to change. My position at the time was, "if you build it, they will come"; new jail construction, Grits argued, would accommodate bad policies while jail crowding forced the system's collective managers to confront them. So I'm particularly encouraged by indications that Harris County judges are now acknowledging their role in the problem and attempting to help resolve it. A defense attorney:

praised the Criminal Justice Coordinating Council, and said judges are beginning to examine their pretrial and sentencing choices.

State District Judge Jan Krocker, who will be opening a court for mentally ill offenders within weeks, agreed.

"Making your community safe in terms of both violent crimes and property crimes involves not only pronouncing appropriately long sentences, but also in rehabilitating those people who can be rehabilitated," Krocker said. "A lot of us are working a lot harder at that."

Good news, indeed. A big chunk of the decline stems from the DA's new policy on how to charge drug paraphernalia, which has drawn heat from police unions but praise from nearly every other corner of the justice system. (Clearly the change hasn't spawned some great crime wave.) But the story also mentions other initiatives that contributed to the jail population decline:

The county has launched various diversion programs. In April 2010, Garcia began allowing nonviolent inmates who enroll in educational or work programs to earn three days' credit for each day served. As of mid-December, 3,661 inmates had been released early under the program, which can shave up to two months off the maximum county jail sentence.

Garcia also noted that 48 people have been diverted from jail by the county's Crisis Intervention Response Team. That program, approved in August, pairs police with mental health clinicians to respond to crises among the mentally ill, hoping to treat them rather than jail them. The sheriff also has tested a program allowing some low-level offenders to serve their sentences at home while wearing an ankle monitor.

For a county the size of Harris - whose jail at its largest was more populous than more than half the states' prison systems - a 31% incarceration reduction in three years is a remarkable achievement, made even more impressive when one realizes that crime rates have continued to plummet and the county has only scratched the surface of possible de-incarceration reforms.

There's still a great deal more to do. Local law enforcement agencies in Harris County don't use discretion granted them by the Legislature to issue summons instead of arresting for certain low-level misdemeanors. And to the extent a new mentality has caused judges to reduce pretrial detention, it's certainly only just begun, in only a few courtrooms. Bail is still the rule for most offenses and pretrial services remains the red-headed step-child of the county justice system, despite anguished cries from the bail industry over even marginal expansion in the use of personal bonds.

This impressive rate of de-incarceration shows that all the "can't get there from here" naysayers were blowing smoke, that the county could incarcerate a LOT fewer people without crime rates worsening. IMO there's still a lot of slack to take up. Now that the county is no longer outsourcing inmates, the next question becomes, how long till the county can reduce the jail population enough so the facility can be run without using substantial overtime? Counties can achieve significant budget relief through de-incarceration, just as overincarceration inevitably becomes a budget burden. Hopefully, Harris County will continue down this path, both for the benefit of its own citizenry and as an example inspiring other Texas counties to rethink their approaches. It's about time!

I don't think the county could possibly have reached this point if they'd expanded jail capacity; there'd have simply been no incentive for change.

Parole board snubs Lege: Won't implement bill on paroling/deporting immigrants

For reasons I've never understood, the Texas Board of Pardons and Paroles tends to view legislation or court rulings governing their activities as optional and often just refuses to comply. The best example is probably their imposition of "Condition X" (sex-offender conditions) on thousands of prisoners never convicted of a sex crime despite repeated state and federal court rulings telling them they can't do it. Or their refusal to boost medical parole rates, costing the state many millions over the last several years by turning down the large majority of sick, elderly inmates recommended to them for release. Years ago they were ordered to create release guidelines they seldom follow, especially for low-risk offenders. It's been going on as long as Grits has followed the agency.

Now the latest example of parole-board hubris arises: The board will not any time soon implement legislation encouraging parole of illegal immigrants who're eligible for deportation, choosing to ignore a bill passed in the latest session by departing House Corrections Committee Chairman Jerry Madden. According to a notice (pdf) on the agency's website.

The Board of Pardons and Paroles continues to meet with officials of the Texas Department of Criminal Justice (TDCJ) and the U.S Immigration and Customs Enforcement (ICE) to appropriately implement HB 2734, passed during the 82nd Texas Legislative Session. This bill intends to have the Board require illegal criminal aliens incarcerated in Texas prisons to leave the United States if granted parole release when they are legally eligible for parole release under the normal parole review process that currently exists for all incarcerated felons. The BPP continues to be concerned that many of the foreign born offenders in the Texas Department of Criminal Justice do not have final orders of deportation at the time of their parole review, but ICE has assured us they are working on that issue.

THERE IS NO APPLICATION PROCESS FOR INCARCERATED ILLEGAL CRIMINAL ALIENS TO APPLY FOR PAROLE RELEASE CONSIDERATION AND NO REQUESTS FOR PAROLE BASED ON THIS LEGISLATION WILL CONSIDERED BY THE BOARD NOW OR IN THE FUTURE. When implemented this law will be just an additional required condition of supervision for those offenders with ICE detainers in effect at the time of their release. (emphasis in the original)

This agency repeatedly exhibits remarkable chutzpah with such pronouncements. Basically the parole board is saying: "Sorry, we're just not going to implement that law because we have our own policy concerns that we believe trump the Legislature's." The Lege can come back in 2013 and order them to create an "application process for incarcerated illegal criminal aliens to apply for parole release consideration" when there is an ICE detainer, but the bill author is leaving the Lege so it would be up to someone else to take up that mantle.

This bill was mentioned in an article by Mike Ward this week as a possible source of budget relief for Texas' chock-full prisons. After all, this was among the few, significant bills passed this year enacting policy changes to reduce inmate numbers, which are rising beyond capacity. But clearly from this notice, TDCJ and legislators must look elsewhere in the near term to reduce costs. The parole board just looked at Madden's bill, turned up their nose with a sniff, and said, "Sorry, we ain't doing it."

Grits finds that attitude and practice as remarkable as it is frustrating: I can't think of another agency that ignores the Legislature and courts with such impunity and gets away with it as often as does the Texas Board of Pardons and Paroles. I'm looking forward to hearing this discussed during the agency's Sunset review next year. If anybody needs a major, 12-year tune-up during Sunset it's this arrogant bunch.

Prison health costs from UTMB deal obliterate claimed TDCJ budget savings

The Texas Department of Criminal Justice and the UT Medical Branch in Galveston last week agreed to a temporary extension of their contract for nine more months, with the state pledging an additional $45 million over that period, reported Mike Ward at the Austin Statesman (Dec. 2):

Senate Criminal Justice Committee Chairman John Whitmire, a Houston Democrat whose committee oversees prison operations, said the $45 million in additional funding will be advanced from the state's next budget, as promised by legislative budget leaders.

Whitmire said he will initiate hearings in January to "look at all alternatives for prison medical care: regional hospitals, UTMB, private companies — all options will be on the table." ...

UTMB "was prepared to walk and they still want out of everything except the care in Galveston," Whitmire said. "That wouldn't solve anything right now, except it might put the system into crisis."

Remarkable: Promising to deliver money in 2012 that won't be budgeted till 2013. Given this year's budget wrangling and the likelihood that the gap between budget and revenue will be even greater in 2013, one wonders if that's a promise legislative leaders can keep?

That $45 million entirely wipes out the paltry $5.5 million in "savings" the Lege claimed to find in TDCJ's budget. As Grits wrote yesterday, the only real way to reduce costs at TDCJ is to change policies to incarcerate fewer people. Slashing medical budgets without reducing the number of patients was always a non-starter, and Texas' spending on prison healthcare per capita is already among the lowest among states. If legislators want to cut prison health costs, they must reduce the number of prisoners, starting with the oldest and sickest among them. Any other approach - regional hospitals, privatization, etc. - amounts to a band aid that fails to address the core malady underlying TDCJ's budget infirmity.

TDCJ adds 2,000 beds as agency deals with consequences of budget cuts without policy reform

At the Austin Statesman, Mike Ward has a piece today ("Prison cuts prove fleeting") on the predictable outcome from reducing incarceration budgets without simultaneously enacting policies to reduce the number of prisoners locked up. The story opens:

Last summer, when tough-on-crime Texas closed its first prison ever, legislative leaders were jubilant over downsizing one of the nation's largest corrections systems by more than 1,000 beds. It was a first big step, they said, toward saving taxpayers tens of millions of dollars in coming years.

Meanwhile, prison officials were adding bunks to the other 111 state prisons, which house more than 156,000 convicts. By last week, Texas had about 2,000 more prison bunks than it did a year ago, thanks to a state law that requires the prison system to maintain some excess capacity as a cushion against crowding.

Because those beds will likely fill up — empty prison beds almost always do — Texas taxpayers could be in line for some whopping additional costs come 2013.

At least TDCJ didn't add additional beds by contracting with private prisons, which was an option the Lege had left open. But cuts to probation programming made it all but inevitable that recent reductions in the incarceration rate won't be replicated over the next biennium. Even the Legislative Budget Board predicts (pdf) the number of Texas prisoners will rise beyond capacity before the 83rd session in 2013.

The problem, as regular Grits readers are well aware, is that the state incarcerates too many people for penny ante offenses. Virtually nothing is a misdemeanor anymore. Everything is a felony, or else somebody, somewhere thinks it should be. As Ward's sources put it:

"This is the adult discussion that the Legislature is going to have to have," said Scott Medlock, an Austin attorney with the Texas Civil Rights Project. "Ultimately, the problem is that we're incarcerating too many people for too long."

State Sen. John Whitmire, a Houston Democrat who for more than a decade has headed the committee that oversees prisons, echoes the sentiment:

"At some point, because of the costs, we have to recognize that we don't need to waste one dollar incarcerating one person that doesn't really need to be behind bars. We're at that point."

To significantly reduce the number of people in prison, state laws could be changed to reduce penalties for some crimes or to limit local judges' discretion to mete out long prison sentences for nonviolent crimes — both of which would be unpopular politically.

I'm actually not sure it's true those things "would be unpopular politically." That's an assumption among the political class, but given the bipartisan tuff-on-crime consensus it's a largely untested one, and recent polling doesn't support it. In a Texas Tribune poll last year, 66% of respondents placed prisons last when asked to rank budget items based on "how important it is to you that their current funding levels are preserved." In the same poll, just 2% of Texans ranked "crime and drugs" as their top priority.

We can see empirically that the "tuff on crime" hammer is losing some of its heft. At the Lege, few critics besides police unions and prosecutors oppose reform bills: Most of the public input legislators receive on reform legislation is supportive, including from traditionally conservative groups. The smart-on-crime approach also dovetails nicely with the desire among movement conservatives to cut the budget: "There's nothing the state can do to limit its costs (for prisons) if we keep sending more and more people to prison, if we keep expanding the capacity," Marc Levin of the Texas Public Policy Foundation told the paper.

You can further see via election outcomes that "soft on crime" accusations are losing their political potency. After GOP House Corrections Committee Chairmen Ray Allen and Jerry Madden, consecutively, passed reform legislation to reduce incarceration rates, both were challenged by opponents who tried to label them soft on crime because of reform bills they passed, but both were able to win reelection. (In the interest of full disclosure: I helped Allen's campaign with opposition research in that 2004 race, one of my last clients as a professional opposition researcher.) Governor Perry has endorsed radical cuts to the prison budget and signed a raft of reform legislation that would make a Massachusetts liberal blush, but none of that has hurt him at all (his problems lie in other areas). And Newt Gingrich, the current leader in GOP primary polling, has backtracked from earlier views to endorse the Right on Crime campaign, whose guiding principles call for downsizing the justice system. (I'd love to see somebody ask him about that in a campaign debate.)

So why should we assume that smart-on-crime incarceration reforms will be "unpopular politically"? What spotty evidence we have, IMO, points in the other direction.

There are many different ways to reduce prion numbers, but Ward identified a few being seriously discussed behind the scenes:

Among other budget-savings proposals being pushed:

• Parole to their home countries some of the 8,000 nonviolent criminals who are not U.S. citizens, a plan that was enacted into law last spring but has yet to see significant results.
• Allow counties to benefit financially for sending fewer convicts to state prison, through new state funding for local corrections programs that advocates insist would be less costly for taxpayers — and probably more effective in cutting recidivism. A bill to do this died in the Legislature last spring.
• Reform sentencing laws, and limit the amount of prison time a judge can give some nonviolent offenders. Past proposals for sentencing guidelines have died in previous legislative sessions amid opposition from elected judges and prosecutors who say it would illegally limit their authority to dispense justice based on community mores.

While more than a dozen other states have recently enacted or are seriously considering such changes, legislative leaders say they are not sure Texas is quite ready to go along.

Again, I don't see why not. It's true that the Texas Senate this year was a killing field for reform legislation, while the session before quite a few reform bills died because of "chubbing" in the House over voter ID. And it's equally true that police unions and prosecutors carry disproportionate weight in the process. Not to mention, the task becomes more difficult from losing long-time reform champions like Jerry Madden, Pete Gallego, and Scott Hochberg from the Lege.

But desperate times call for desperate measures and if this is the only way to cut the budget, will all the new Tea-Party aligned conservatives really vote against it? Debates over TDCJ's budget are fundamentally constrained by reality in a way that election rhetoric is decidedly not. You can't reduce health care funding by 9 figures without reducing the number of patients served. Reducing food budgets at a time when food costs are rising requires reducing quantity, quality or else the number of people eating. Cuts to diversion programs that cost a few dollars per day don't (or shouldn't) count as savings when they result in more revocations to prison for probationers and parolees, boosting their (average) cost to $44 per day. These are immutable facts. When a judge or jury sends a prisoner to TDCJ - until they serve their full sentence or are released by the parole board - they must be fed, clothed and supervised. When they are sick they must receive healthcare. When they are elderly and disabled they receive the equivalent of nursing-home care. Those things cost money.

We have passed the point where TDCJ can find savings by cutting "waste." The only way to reduce the budget further is to change policies. But for whatever reason, in 2011 that wasn't seriously on the table. As described by a Grits headline summing up the session: "Texas budget ditches 'smart on crime' approach, reverting to old priorities."

It should be mentioned that the list of suggestions offered by Ward for reducing the inmate population is far from exhaustive. Grits can imagine many other ways not suggested in the story:

• Index property offense thresholds to inflation
• Ratchet down drug offenses by one category across the board
• Relieve the parole board of discretion to disregard earned-time credits
• Boost funding for state hospitals, community-based mental health treatment
• Reform 'fiscal note' process to reflect actual cost of new crimes, enhancements in state budget
• Boost parole release rates at the margins for low-risk offenders
• Give credit for time supervised on parole on certain offenses
• Repeal post-'93 "boutique" enhancements passed on behalf of special interests
• Enact a moratorium, explicit or de facto, on creating new crimes or "enhancing" existing ones
• Expand use of medical parole for elderly, sick inmates who pose little threat
• Spend at least 1% of juvenile justice funding on programs for at-risk youth
• Require inmates set to be released on “flat discharge” for serving their entire sentence to be placed in a community-based, supervised program for nine months to decrease their likelihood of recidivating
• Expand mandatory probation for first-offense drug felony to 1-4 grams of a controlled substance
• Expand and for some offenders mandate use of intermediate sanctions
• Cap time in prison for property and drug offenders revoked on technical violations to no longer than 12 months
• Reward successful probationers with early termination of probation or dismissal of their case (an even stronger incentive because it reduces collateral consequences).
• Reduce reliance on life and life-without-parole sentences to avoid high future costs.

That's not an exhaustive list, either, but it shows there are a lot of different methods for reducing the prison population if the Lege can muster the will to make its policies match its budgeting preferences. Whether that's possible, I don't know. But the takeaway lesson from 2011 is that the prison budget can't be effectively cut without reducing the inmate population. We've traveled beyond the point when it's possible to tell TDCJ, "Do more with less."

Lower jail population provides budget relief in Wichita County

In Wichita County, reducing the county jail population has resulted in substantial, welcome savings in the county budget. The Wichita Falls Times Record News has a story by Matt Ledesma with the bland title "County jail has fewer inmates" which documents Wichita County's remarkable, concerted effort this year among the sheriff, judges and prosecutors to reduce the local jail population quite dramatically: The story opened:

Wichita County Jail officials faced a big problem to start 2011 — concerning a record-setting number of inmates.

The large jail population — which reached a high of 653 in January — put a significant strain on staff and the county's budget to maintain the downtown and Sprague Annex jails.

That burden has been lifted somewhat recently through the efforts of several entities at the Wichita County Courthouse, according to Wichita County Sheriff David Duke.

"Our jail population has slowed down quite a bit, and it's an accumulation of several factors," Duke said. "A lower jail population means there's been a substantial savings to Wichita County. We've had an excess of more than $600,000 to $700,000 we're not using that we've been able to turn back in to the budget."

Population numbers in November have averaged about 420. That's a significant decrease from an average of about 613 in January.

That average has dropped steadily since February, though that's not due to a lack of law enforcement activity, Duke said. Daily book-ins have remained nearly the same throughout the year, hovering at about 24.

Instead, Duke credited several groups at the courthouse for the stretch of desirable population numbers.

"One of those factors is our staff being able to process faster, inmates that are ready to be sent to (Texas Department of Corrections) or state jail," Duke said. "We've also gotten help from the District Attorney's Office. We have more people being convicted and sent to prison now than we ever have that I can remember in the last 29 years of my service to Wichita County. That's because of the new district attorney and her staff that have changed a lot of the ways they do business up there."

Duke also touted the efforts of the district court and county court at law judges in dealing with plea arrangements on felony and misdemeanor cases. He said the judges are also able to handle many of those cases at the same time, further expediting the process.

The savings to the county, brought on by that streamlined process, have also helped out in other problem areas. Funds once earmarked for the crowded conditions are now being put toward a large amount of amassed overtime pay for county employees, Duke said.

He said the low numbers have also meant a cutback on overtime pay for jail staff requirements based on the daily inmate population.

That's an impressive 31.5% reduction in the local jail population in less than a year. Not many other counties could make that claim. This example highlights how addressing jail crowding problems really requires cooperation across an array of entities from the police to the DA, the Sheriff, judges and even the defense bar  - there are too many cooks in the kitchen, many of them elected officials, and as the proverb says, it's difficult for them all to work together without spoiling the broth. Maybe such cooperation is easier in a mid-size county like Wichita than in larger cities like San Antonio and Houston.  In any event, if they can sustain it, their example shows such problems are not insoluble, or rather there are more solutions to be had than simply ever-expanding jail construction.

Texas 'Students Do Without Art,' but streets still open to graff writers

I was interested to see the headline from Business Week on Texas' failure to resolve its school funding crisis: "Texas School Finance Fix Eludes Perry as Students Do Without Art." Grits would add a coda to Business Week's art reference, captured in a headline from this 2009 post: "Kids do less art in school, more in street; Lege reacts with hammer." That post argued that:

Texas schools have seen the arts de-prioritized to focus on the TAKS test. As a result, Texas experienced "a drop in middle school fine arts participation from 75 percent student participation in 1999 to 66 percent in 2006."

Perhaps relatedly, during this same period in Texas graffiti crimes soared; the amount of graffiti in Austin, for example, increased 400% from 2002 to 2007. But all legislators can think to do is increase punishments, not artistic opportunities.

How 'bout it? Do you believe the fact that Texas youth are doing less art in school and more graffiti in the streets is a coincidence? Might providing more legitimate outlets for youth creativity produce the added benefit of reducing illicit tagging?

Cuts to mental health may leave Texas jails warehousing more mentally ill

As was predicted even before the 82nd Texas Legislature began, large budget cuts to front-line mental health providers are handcuffing community-based treatment programs and shifting the burden (and cost) to local police and county jails. Reports Kevin Krause at the Dallas News (Nov. 27, behind paywall):

Dallas County officials and homeless advocates say millions of dollars in planned state cuts to mental health care will severely tax an already overburdened system and could lead to increases in the homeless and jail inmate populations.

Money for Dallas County and six neighboring counties that receive mental health services under a privatized system called NorthStar will see $10.7 million less in the 2012 fiscal year, officials said.

That includes about $5 million used to treat people who are sent to state hospitals such as the one in Terrell.

Dallas County commissioners recently sent a letter to the Legislature’s two top budget writers, explaining the situation and asking for help. Ron Stretcher, the county’s criminal justice director, said help was promised.

But it may not come soon enough.

“We’re asking to have that money restored,” said Stretcher, who acknowledged that that is unlikely. “We’ve had to start cutting.”

The first round of cuts will go into effect Dec. 1, he said.

Between 70 and 100 clinic-based caseworkers will be laid off, Stretcher said. And less inpatient psychiatric care will be contracted for at Green Oaks Hospital.

Also, an after-hours clinic operated by MetroCare Services for people who missed appointments or have trouble seeing doctors will close, he said.

And the county will have fewer case managers at housing projects for those who previously were homeless because of mental illness or substance abuse, Stretcher said.

Those cuts cover about half of the expected deficit, he said.

The same story, no doubt, could be localized nearly everywhere in the state. Of all the dunder-headed, penny-wise, pound-foolish decisions affecting criminal justice coming out of the 82nd Legislature, this one strongly competes for top billing (perhaps along with underfunding prison healthcare by $100 million without reducing their number of patients). At this point, ironically, for some folks on the lowest rungs of society, the only way to access mental-health services really is to commit a crime.

In particular, cutting "case managers at housing projects for those who previously were homeless because of mental illness or substance abuse" has real public-safety implications, taking some of the support out of "supportive housing" often aimed at frequent flyers from the jail. It also has implications for the county budgets, since most big-county jails are full and the mentally-ill often cost several times as much per day to incarcerate as the average prisoner.

As a practical matter, this year's cuts to community-based mental-health programming amounted to an all-but-overt decision to dump the costs onto local criminal-justice systems, particularly county jails, as a back-end, off-the-books substitute for community-based care. As a result, “'We’ve won the race to the bottom,' said Matt Roberts, president of Mental Health Association of Greater Dallas," to Kevin Krause.

The justice system has a lot of moving parts, some of which, as with community-based mental health services, aren't formally even part of the justice system. In too many cases, when somebody's homeless, mentally ill and stealing, trespassing, begging or sleeping where they oughtn't or even engaging in aggressive behavior, local authorities have few short-term solutions available to them besides the jailhouse. This year's cuts narrowed locals' options even further, by this account gutting community-based supports in Dallas that divert folks from jail and prevent crime.

Shifting costs to counties in a way that costs taxpayers even more isn't so much a conservative budgeting approach as it is an abdication of leadership. If your goal were to cut overall costs to the taxpayer and maintain or improve on the all-time low crime rate the state and nation enjoy at the moment - and if, heaven forbid, you didn't suffer from the myopia of focusing one funding stream but instead sought overall cost containment - a wiser strategy would be to boost resources for community-based alternatives to avoid using (more expensive) local jails as a primary mental-health provider whenever possible. Instead, the Lege de facto chose the most expensive and least practical approach to the problem, further transforming large wings of the jailhouse into mental health wards while cutting social services on the front end.

That's a helluva way to run a railroad.