They Shot More than a Messenger
Governer Rick Perry silenced Tony Fabelo. Now, hear what he has to say.
BY JAKE BERNSTEIN
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June 2003, at the end of the regular session of the 78th Legislature, Governor
Rick Perry abolished an entire agency with a line-item veto. The agency had
a biannual budget of only $2.5 million, but Perry’s action will likely
end up costing the state much more than that. For an institution that was unique
in the nation, the agency had a rather bland name—the Criminal Justice
Policy Council. It had started in 1984 as a council of elected officials tasked
with forcing agencies dealing with the criminal justice system to work together.
One of its first employees was a freshly minted doctorate from the University
of Texas named Tony Fabelo.
Over two decades Fabelo would transform the council into an unbiased source
of data and planning for one of the largest prison systems in the world. The
council studied everything from prison costs and upkeep to the effectiveness
of drug treatment programs. Astoundingly, 1 out of every 20 Texans are under
the control of the Texas Department of Criminal Justice either in prison, parole,
or on probation. Fabelo created order from chaos. “We must have a criminal
justice policy council,” Senate Criminal Justice Committee Chairman John
Whitmire (D-Houston) told The Houston Chronicle upon hearing of Perry’s
veto. “It’s critical to the state’s public safety net that we
have experts like Dr. Fabelo around.”
Why
Perry removed Fabelo is a favorite guessing game of those who work on the advocacy
side of the system. The official line from the governor’s office was that
the council, created to act “as an independent agency to assist with solutions
to prison overcrowding” was superfluous, its demise a money saver. For
those who don’t swallow that line, there are at least three different conspiracy
theories detailing which hidden interest did in the straight-talking civil servant.
Many, aware that a few key players in the lobby run much of the Lege, believe
it was Fabelo’s appraisal of privatization—grounded in realism and
not ideology. In this theory, it was a corporate deal and Mike Toomey’s
fingerprints are all over the axe. Toomey was a lobbyist whose clients included
private-prison behemoth Corrections Corporation of America. He helped engineer
the 2002-coordinated Republican campaign to seize the Legislature—currently
under investigation by a Travis County grand jury. He then became Rick Perry’s
chief of staff. (Toomey is back in the lobby for the 79th Legislature: see,
“Texas’ First Post-Modern Lobbyist,” TO, December 17, 2004.)
Theory number two had Fabelo done in by faith, so to speak. The council did
a study comparing faith-based treatment programs to those offered by the state.
It found that, while faith-based programs saved the state money, recidivism
rates were about the same. Both approaches failed to keep prisoners engaged
or successfully integrate them back into their communities. According to this
theory, faith-based Republicans, a key bloc in any Perry primary victory, are
responsible for killing the council.
Last but not least is the current prison crisis. The Legislative Budget Board,
which subsumed many of the council’s responsibilities, says the state prison
system could be at capacity by March. Fabelo had predicted as much the session
before. A crisis in the prison system is not something to trumpet when running
for reelection. The next best thing to solving the problem is minimizing its
importance.
None of this need concern Fabelo anymore. His value is clear to officials in
five states where he is working as a consultant. He is also helping out in Puerto
Rico, his boyhood home. Born in Cuba, Fabelo’s parents spirited their young
son off the island after the revolution. They were headed to Spain on a tourist
visa, but when the boat stopped in Puerto Rico, his father asked for political
asylum. Fabelo laughs as he tells the story from his South Austin home. Throughout
the house are touches of the islands. It’s clear in talking to the bearded
and perpetually pensive Fabelo that he still cares deeply about Texas and the
criminal justice system he spent almost 20 years trying to fine tune. What follows
are excerpts from that conversation.
The Texas Observer: There seems to be evidence that other states that
didn’t have Texas’ prison building boom also had crime rates that
went down. Are we safer or just poorer?
Tony Fabelo: It is a combination of everything. We had such
a crisis. We let the system get so out of control in the ’80s. We neglected
to have adequate capacity. We neglected to really pay attention to how the war
on drugs was having an impact on sentences, or pay attention to the probation
infrastructure and so forth. We had such a crisis that we had a gigantic backlog
in the county jails. The counties sued the state and won, and we had to pay
the counties half a billion dollars over a period of, I think, six years for
holding the prisoners in their county jails and for penalties the court decided
to impose on the county jails. So at that point, really, there was no choice
but to build.
We were in a tremendous bind. There were a lot of releases. The parole rate
was 80 percent. When we release at 80 percent, you’re not making good release
decisions. So, we released [violent offenders] and they became the poster cases
for this situation. So the parole board was shut down, and releases started
declining, which aggravated the whole overcrowding. [It] was totally out of
whack. So there was no choice given the situation but to build prisons and get
the system stable. So in that regard we had to build prisons and we did have
an impact on crime, because eventually we had a more stable system where the
violent offenders were serving longer.
The other answer to your question is, if we continue to do this, are we just
putting more money in this thing, and getting the same returns on the investment?
We are getting to the point where we have the highest incarceration rate in
the country, the third highest right now. We have about the same prison population
as California, [which] has 13 million more people. And that gives you a sense
of how high our incarceration rate is. In terms of crime rates, there are other
states that saw declines in crime, particularly New York, [which had a] tremendous
decline in crime. They did a lot better in terms of crime rate decline even
though their incarceration rates did not increase as much.
Right now with the highest incarceration rate in the country, with a projected
shortfall in capacity of about 6,000 to 8,000 beds in the next five, six years,
there is not enough capacity. If we build more prisons and build 8,000 prison
beds, and that would cost a lot of money nowadays, probably over $1 billion,
are you going to get dramatic declines in crime? The answer is no. [We] won’t.
TO: What are the other parts of the system that we need
to enhance?
TF: The first one is probation. The probation system in Texas
is not a very effective system. Half of the probationers that terminate probation
terminate because of a revocation. We have about 30,000 absconders at any point
in time, from probation. We don’t even know where these guys are. These
are felon probationers. The problem with the probation system is that we have
very long supervision terms. We have the longest supervision terms in the country.
These people stay there for a long time, so that’s why we end up with 250,000
felonies on probation—more than California, and then another 150,000 or
so in misdemeanor probation. The caseloads [for probation officers] are 100
to 116 for felony probations. Which means that the probation officer cannot
do much with these people, except to figure out if they’re reporting or
not.
So we have a system that—if you’re a probationer and you get in trouble,
you don’t get a lot of services, you don’t get a lot of attention
that can help you get out of trouble. In particular, attention with employment
problems, substance abuse problems and so forth. On the other hand, if you’re
doing well on probation, you stay on probation forever because you’re paying
fees and they generate money for the system. Half of the funding of the system
comes from fees paid by probationers. [For every $1 the state invests, probation
collects $1.13 in offender fees for supervision, victim restitution, court costs,
and fines.] So if you’re doing well, stay on probation for a long time.
Thanks for paying for the system! If you’re not doing as well, we slap
you in the face a couple of times, don’t give you a lot of attention in
terms of good programs and casework supervision, and then all of a sudden we
revoke you.
TO: What would the ideal caseload for probation officers
look like?
TF: It varies. Some people say seven. But look, we did this
in the juvenile system when Bush was here and that was one of the proudest things
I did when I was working there with Governor Bush. He came in and said we need
to fix our juvenile system. And part of the fix was to increase time for the
most violent juvenile offenders. But the other part of the fix was to strengthen
probation. So they put more money into juvenile probation. They put in a system
of progressive sanctions. [A] staircase system of how kids will move. If you
don’t do it good in step one, we’re going to take you to step two.
And put programs behind that; and the caseloads went down—right now I think
it’s 1 [probation officer] to 26. And they were way up before the reform:
1 to 70 and so forth. By every measure the numbers are now better, even recidivism,
the numbers are better. Now, that’s a smaller system. It’s a system
of very short terms. If you’re in juvenile probation you don’t stay
on forever like adult probation. You stay on for a year, we try to do something
with you to make you better, and in that year, we hope that you don’t come
back. And that is exactly what happened. So the same logic needs to apply to
the adult system. It hasn’t been applied because you will need funding
to replace all these fees that you’re not going to have when you cut the
probation terms.
But the solution is very clear: First, you need to cut probation terms. We are
talking non-violent offenders. We’re not talking about sex offenders. Most
of the probationers are non-violent offenders. So you cut the terms, have very
strong supervision for the first year. Strong supervision means not only the
guy knocking on your door but making sure you go to the counseling that you
need and all that jazz. If you survive that first year, we’re going to
put you in another year with lower supervision and see if you survive that second
year. And if you do, you’re off the hook. You’ve done good. Studies
have shown—I’m doing some work in Virginia—79 percent of the
violations that lead to revocation occur in the first eight months. So, most
of the stuff happens that first year. And you can do another year just to make
sure that now they can follow the rules. If you do that, you will cut the numbers
of people on probation substantially.
TO: How do we prepare people for re-entry? Is there a good
way? Is it something that the state should invest in more?
TF: We sure don’t prepare them by just opening the door
and giving them fifty bucks [laughs] “Okay people, take the bus and good
luck!”
I mean, we sure don’t. And this is a national initiative [to deal with
this problem]. In Connecticut for example, we identify through mapping studies
the higher-risk neighborhoods in New Haven and Hartford. We’re working
with the Council of State Governments there, which is a national organization
that is also looking at criminal justice issues. And we identify million-dollar
neighborhoods. These are neighborhoods where you superimpose the criminal justice
supervision costs with welfare costs and employment assistance costs and all
that. They’re receiving all the state money, okay? But it is being received
by different pots [sic] of people that are not well coordinated.
So part of the initiative that just got adopted is to go back to those neighborhoods,
working with all the agencies, not only the criminal justice agencies but their
mental health, substance abuse agency, and probation agency, and the Department
of Corrections, to try to see how to coordinate these services better. Identify
the people going to those communities early on. Start the re-entry process in
the prison system. Transition them to those communities [where] they [can] get
an array of services that might be paid for by different [public and private
groups]. But it’s an array of services oriented at trying to make these
people succeed in the community. We call it “justice reinvestment.”
So we’re trying that in Connecticut. We’re going to try it in Arizona.
We’re going to try it in Kansas. Those are our three sites that we selected
for this year. The people there are all gung-ho about it. And they’re very
different states. Connecticut is, let’s say, more liberal, although they
have a Republican governor. Kansas is conservative. Arizona is very conservative.
But they’re looking at this picture and saying, this makes sense. How can
we get out of [having] to build prisons and more prisons? In Connecticut I think
it was 60, 70 percent of the people coming back to prison were coming back from
[the same] neighborhoods, in New Haven and Hartford. So if you do something
there, and you’re better at delivering the resources, you can cut criminal
justice costs; and, ironically, reinvest the money that would be freed up—in
theory—back in those communities to continue to enhance that.
TO: Do you think the nation, or maybe even Texas, is getting
close to a prison tipping point where across the ideological spectrum there
is an acknowledgement that it’s not working and something has to be done?
TF: Yes. We have reached that in Texas. We have reached that
tipping point, I think. Nationwide, you have that conversation where you have
Senator Brownback from Kansas, for example, conservative Republican, talking
about the need to improve re-entry, and actually being very involved in this
issue nationwide along with what you might call more liberal elected officials.
President Bush raised the issue of improving re-entry and dealing with this
population in the State of the Union address and that has generated lot of interest.
Faith-based communities are behind this and, you know, they are very conservative
but they’re behind this. They were behind the adoption of the prison rape
bill that was just passed in Congress to prevent rapes in prison. There’s
a second part to that bill to enhance community capacity to deal with these
populations going back.
I think you have an ideological consensus that violent offenders should be locked
up for a long time. But I also think you’re getting a development of an
ideological consensus about what we do in these communities with these drug
offenders that are substance abusers. I don’t think the consensus is clear
yet there. There is a lot of debate around mandatory sentences and so forth.
But I think there’s a consensus developing. Now you can have that consensus
and nothing gets done. So, you need the leadership to forge that consensus into
something that gets done—and that is the key.
TO: Is privatization the magic bullet that some people
think it is? And if not, why not?
TF: I think privatization has a role in all this, and Texas
has led the way on privatization. So it has a role. It depends where, how, and
at what cost? So I don’t think it’s a magic bullet. If some people
think we can privatize the whole prison system—that is pretty hard to do.
It might cost less now but it’s going to cost you a lot more later. My
feelings with privatization is that you have to figure out where it fits and
how it fits, for what populations, what performance you expect from them, and
work that into the contract arrangement. And if it reduces costs, it’s
okay. But it has its limits.
There is no magic bullet in any of this. The magic bullet is to have a long-term
commitment to improve your probation infrastructure in such a way that you cut
terms, improve programs and services, and try to work with judges to make them
feel very comfortable that when they put somebody in probation they are more
likely to do good and they will have more alternatives to revocation.
I was in Kansas in November and if you get revoked from probation on a technical
violation, you basically serve six months in prison, and you get out. You don’t
go back with your original sentence. In Texas you go back with your original
sentence so you’re going to serve whatever, 50 percent of that, probably
now, 40 percent of whatever the sentence was.
[I’m working in] Virginia—a very conservative state. One big difference
is they have sentencing guidelines that are administered by the judges. They
are working on a risk assessment instrument for probation and community supervision
revocation that lets the judges identify where these people fall in terms of
risk of coming back again. And if they fall below a certain line, the recommendation
is to leave them in the community with alternative programs.
They think they can divert like 40 percent of the people that are being revoked
based on this risk assessment. The people that fall in this lower category,
only 17 percent were re-arrested after a two-year period compared to 48 percent
for the people that fall in the higher risk. So it’s not that you have
zero risk, you always have a risk. But you have to identify where these guys
fall, in what group, and the judges use it and try to divert people that way.
TO: Well, the governor, when asked about Texas’ lack
of capacity, says that we can just outsource to private facilities and county
jails. But is that really a cost-effective solution for the state?
TF: Well, it might be cost-effective in the sense that it might
cost a little bit less than housing them in the prison system. It might reduce
some of the prison construction cost. If some of the privates construct their
own prisons, I guess, or the counties pay them for holding them there. But the
operational cost will still be large. You still have to pay for housing those
people. And at one point, the question becomes, “Where’s the end of
this thing? How large is this going to get?” We have 160,000 prisoners.
Are we going to do this every four, five years? Buy 6,000 more prisoners? Somebody
is going to have to really answer questions. And I have asked that question
before. What it requires is a strong commitment to enhance other parts of this
system that we have not enhanced very well.
TO: What questions should legislators be asking of the
folks at the Legislative Budget Board who are doing some of what you used to
do? What information will be missing that legislators should know?
TF: Let me tell you a part that was invisible. What we did
a lot was serve as a neutral facilitator among the agencies to agree on what
was the problem. Agree on some potential options for the problems. Agree on
how we were going to approach this to provide the best information for the Legislature
and the governor on what to do next. And then agree on accountability measures
that the agencies will participate in to move the agenda forward. That was kind
of invisible in the sense that what they tended to see were reports, projections,
and so forth. But now that I’m traveling all over the country, ironically,
I’m doing this role [in other states].
In this state you have all these agencies and the legislative board types and
so forth, you need a mechanism for somebody that is perceived as neutral, coming
in and facilitating all this work with the agencies to provide a consistent
and cohesive view of what needs to get done and how you’re going to hold
everybody accountable for doing it and have everybody working together. I did
a lot of that so, a question that you need to ask somebody is whether, that
part, that function, has been done or somebody’s doing it. I honestly do
not know. I don’t want to speculate because it sounds pretty self-serving.
TO: In your final years there, did you ever feel—
I’m not saying that you gave in to it—but did you ever feel pressured
to reach any kind of conclusion?
TF: No. I mean there were a lot of pressures during the last
session. But everybody that knew me, knew that I would listen, try to figure
out what was reasonable given the base of numbers, of information, and give
them my best judgment, and that’s what they always praised me for doing.
And any attempts to put pressures that were blatantly political, [they know]
I will not do it, and [instead] pay the consequences.
TO: That’s pretty much what happened!
TF: I don’t know, [laughs]. But, that was my job, that’s
what they paid me to be. They needed to have somebody that they saw not playing
any games with the judgment calls. And many times, Republicans and Democrats—and
believe me I have good friends on both sides, very good friends—[would]
tell me, “maybe we don’t like what you say sometimes, but we know
it’s your judgment call based on the best information that we have. And
if we don’t like it, we’re going to tell you and then try to work
on it. But that’s what we like, because there’s a lot of people who
come here, and you know they have all kinds of agendas.”
And so at a certain point they don’t believe anything and this is the problem.
It becomes a game of opportunity—using information to create opportunity
as opposed to using information to create options that most people think are
reasonable [to provide] alternatives to whatever problem they’re facing.
It’s fascinating. The use of information in a power structure is something
that fascinates me and I love to watch it.
TO: One last question: Why do you think the agency
was terminated?
TF: [Laughs]. I just take it as a big compliment what [they]
said. We did such a good job in helping the state get out of the crisis in the
early ’90s, that we were no longer needed! [Laughs]. So we worked ourselves
out of a job! The only agency that has done that. And I appreciate the compliment.
