Politically Correct

If there’s one issue on which Texas lawmakers tend toward bipartisan comity, it’s criminal justice. Execution versus life in prison is generally the starkest dividing line over what should be done with lawbreakers, and those against execution risk being labeled soft on crime.

This session lawmakers decided once again to build more prisons and jacked up sentences for myriad offenses. And Lt. Gov. David Dewhurst got his bill extending capital punishment to repeat child sex offenders, assuring a slew of campaign ads in his expected race for governor even if the new law turns out to be unconstitutional.

Another group of lawmakers, however, changed the way the Legislature talks about criminal justice. Fed up with the cost of the country’s largest population behind bars, they pushed through extensive reforms that use parole, probation, and substance abuse treatment programs to keep people out of prison.

State prisons are projected to have 17,000 more inmates than beds by 2012, so lawmakers had a choice to make. Some said build more prisons; others suggested fewer prisoners. In the end, they tried both, providing $273 million for new prisons and $205 million for new treatment and diversion programs. Thanks to a hefty budget surplus and funds from state bonds, the two agendas didn’t compete directly. That ensured funding for both, but deprived lawmakers and the public of a serious debate about which approach makes for the best public policy.

“It’s a battle between what some people still view as the way to go-which is ‘lock ’em all up’-versus what will really increase public safety, like better probation, good parole guidelines, and diversion programs,” says Ana Yañez-Correa, head of the Texas Criminal Justice Coalition.

Dewhurst focused his mid-January inauguration speech on hefty prison sentences for first-time child sex abusers and executing repeat predators. “Our message is this,” he said, “There’s tough. And then there’s Texas tough.”

Two weeks later, Sen. John Whitmire, a Houston Democrat, and Richardson Republican Rep. Jerry Madden laid out an entirely different plan to a joint meeting of their Criminal Justice and Corrections committees. The lawmakers took the novel view that the country’s largest prison population isn’t necessarily something to brag about. Instead, they focused on clearing backlogs that hold prisoners too long, and expanding rehabilitation programs for released convicts.

Tony Fabelo, a global criminal justice expert who has spent decades following Texas’ corrections system, offered the assembled committees three major reasons that the prison system is in trouble: Too many probation violators are sent back to prison, parole rates are too low, and the overflow is stuck in county jails. The state Department of Criminal Justice holds 152,000 inmates at a yearly cost of $2.5 billion, he said. One in 20 adults in Texas is either on probation, paroled, or locked up. Drug and alcohol treatment programs have succeeded at preventing repeat offenses, he said, and investing heavily in the programs would save the state money. Making sure the parole board comes closer to its own guidelines for releasing low-risk inmates will free up thousands of prison beds.

The research behind the proposals, and the intensity with which Whitmire and Madden pursued them, drew support to much of the plan. Still, plenty of the “tough on crime” crowd was critical of funding anything that looked sympathetic to prisoners. A Senate bill by Houston Democrat Rodney Ellis, which Madden sponsored in the House, would have punished some minor drug offenses with probation and treatment. It became known as the “hug a thug” bill and died before reaching the House floor. Whitmire repeatedly defended the use of short-term lockups known as intermediate sanction facilities, which he proposed for parole violators who haven’t committed new crimes.

Whitmire’s bill passed the Senate unanimously. When it died in the House, Whitmire revived it as an amendment to another bill. Republican Sen. Bob Deuell of Greenville supported Whitmire, telling of an ex-con sent back to prison for a year because he violated parole by eating at a Mexican restaurant that served alcohol. Other Senate Republicans, though, came out fighting, asking why they should give anyone “a get out of jail free card,” as Sen. Steve Ogden of Bryan put it. The final compromise assigns intermediate facilities for first-time parole violations, and prison for subsequent ones.

In the session’s last days, lawmakers became tougher on crime and increasingly wary of gubernatorial vetoes. District attorneys lobbied hard all session against the reform legislation.

Ellis’ long-frustrated effort to create an innocence commission to investigate wrongful convictions and prevent future ones, suffered a particularly brutal, drawn-out death in the session’s last weeks. Republican Sen. Dan Patrick of Houston shot down the commission multiple times as Ellis tried to pass it as amendments. On the House side, the commission died in the Criminal Jurisprudence Committee.

Dewhurst’s Jessica’s law, on the other hand, sailed through the House committee, chaired by Edinburg Democrat Aaron Peña, and was rushed to the floor. It was Peña’s first term heading a committee that had been a friendly place for prosecutors under his predecessor (and future House parliamentarian-for-a-weekend), Terry Keel. Criminal justice advocates say Peña picked up where Keel left off, throwing his support behind large numbers of “enhancement” bills that lengthen sentences for existing crimes. Enhancements keep people locked up longer and keep prisons crowded, but are small enough individually that they rarely cost much. They are also popular among lawmakers and district attorneys because they make good campaign fodder. Other enhancements heard in Peña’s committee included stiffer penalties for shining a laser pointer at an airplane and for soliciting a minor with text messages, plus Peña’s own bill adding a special penalty for stealing copper wire.

Peña said maintaining a tough record is still critical to staying elected in Texas. “Most Texas citizens feel fairly strongly about criminal justice issues,” Peña said. “They’re very tough on crime, and they expect people to be locked up for long periods of time. … You have to be responsive to the public. Otherwise, it’s not a democracy anymore.”

To that end, the state budget includes three new prisons with a total capacity of nearly 4,000 and an annual operating cost of $72 million. While Whitmire made it clear he doesn’t think Texas will need the new prisons, there was no stopping them.

Marc Levin of the Texas Public Policy Foundation, an organization whose mission statement includes “individual liberty” and “limited government” and is often at odds with progressive groups, wound up on the “soft” side of the prison question. “The big issue is that we’re 3,000 prison guards short, so there’s no way to staff these new prisons,” Levin said.

Prison construction found another unlikely opponent in the very people who would be working in the new buildings: correction officers. They’re not interested in being spread even more thinly across the state. They complain that the state already pays correction officers some of the lowest salaries in the country, requires them to work overtime, and hires inmates to fill staffing gaps. Turnover is high among correction officers-30,000 have been hired since 2001-but 31,000 have left. Going door to door at the Capitol, they lobbied for a new pay ladder, increased hazard pay, and steps to make TDCJ a more enticing place to work.

In the end, the expected battle over prison construction was more of a cold war. The money was inserted into the budget by Ogden, chair of the Senate Finance Committee, and House Appropriations Chair Warren Chisum, a Pampa Republican.

Reformers hope the treatment programs will make new prisons unnecessary. A legislative oversight committee is charged with making sure the reforms happen.

Looking at how the Legislature addressed the prison bed shortage, Levin said, “If we’re dealing with 80 percent through diversion and 20 percent through new prisons, you could argue that’s a silver lining.”

That’s close to Fabelo’s estimate of the reformers’ success rate. “At the end of the day, we got about 85 percent of the things we wanted through,” Fabelo said.

The budget makes room in treatment facilities for 5,700 more inmates and adds 2,700 slots for prison and jail treatment programs. Another bill includes guidelines to ensure that low-risk offenders are paroled at targeted rates. New intermediate sanction facilities and drunk-driving treatment will decrease demand for prison beds as well. Projections from the Legislative Budget Board indicate the reforms will erase the 12,000-bed shortfall.

Whitmire said it’s “pretty amazing” looking at the reforms that passed. “There’s no question we’ve made monumental progress this session,” he said, adding that even the new prisons might help the state in the end. “If we build new prisons because someone wants to say they built new prisons, there’s a chance we could take some old ones off-line,” he said. That could save the state money because it costs less to house inmates at newer, more efficient prisons.

For now, the threat of a Perry veto looms large, and during a press conference recapping the session, Perry sounded skeptical about the treatment reforms. His press release on the session called the rehabilitation measures “ugly” and complained that the Whitmire-Madden plan took $20 million from other mental health treatment efforts. “The budget dedicates $205 million providing treatment to 150,000 prisoners, while cutting treatment funding for 22 million law-abiding citizens,” Perry said. Listing the session’s accomplishments for reporters, Dewhurst covered everything from property tax relief to steroid testing, from clean water to science lab funding, but he left out any mention of parole reform or drug treatment for prisoners.

Peña said the atmosphere is changing, but it’s still important to look tough on crime and keep prison sentences long. Yet the state can’t afford to just build more prisons. “You slam the jail doors and you say ‘I’m tough on crime’-that was the way you got elected in Texas. The reason the policymakers and the experts changed their minds is because it is more efficient to divert people to treatment,” he said.

Patrick Michels is an Observer legislative intern.