Lawmakers say solution to prison crowding is in rehabilitation, not P-farms / By Jim Lewis

In the earl y 1990s, the last time Texas faced a prison overcrowding crisis, it built its way out, embarking on a 100,000 bed expansion of its prison system over the next decade. This year, the state once again faced an imminent bursting of its prisons’ seams; state budget experts in January forecast that if no changes are made, Texas prisons will exceed operating capacity by 11,464 in 2010.

But this time around, the Legislature had a new building solution – constructing a comprehensive community corrections system by adding rehabilitation programs, shortening probation terms and charging judges to take greater responsibility for individual defendants. And for once, the state is putting its money where its mouth is. The budget of the Texas Department of Criminal Justice was increased by almost 10 percent, including an additional $205 million for an assortment of treatment alternatives that will significantly expand the range of punishments that judges can consider.

The shift in strategies was the result of a new consensus among criminal justice policy leaders in both houses of the Legislature, and in both political parties. House Corrections Committee Chair John Madden, a Republican, led the charge along with Senate Criminal Justice Chair John Whitmire, a Democrat who has long promoted community corrections alternatives to prison. Similarly, conservative policy groups like the Texas Public Policy Foundation testified arm-in-arm alongside liberal think tanks like the Texas Criminal Justice Coalition to push through the most significant redirection of Texas’ approach to punishment in decades.

Madden and Whitmire began working closely together in the 2005 Legislature but their major overhaul of the system that year, HB 2193, was vetoed by Gov. Rick Perry. This time, Perry and his staff were consulted early and often and the Governor eventually endorsed the bulk of the reform package, while vetoing some critical aspects (See 13).

HB 2193 from 2005 was reincarnated this year as HB 1678 but the new version was watered down enough that law-and-order advocates such as district attorneys declined to testify against it, even though they weren’t entirely happy with it. The measure has several major elements.

Shorten maximum probation terms

A major concept behind the bill is concern that the longer an offender serves on probation, the more likely he or she is likely to be revoked and sent to prison. One study indicates that Texas probation sentences are 67 percent longer than the national average. To address this concern, the bill reduces the maximum term of probation from 10 years to five, solely for third degree felony drug and property crimes (the version two years ago also applied to such offenses as assault on a peace officer and felony driving while intoxicated – two problems that Perry cited in his veto message). The new law does authorize a judge to extend probation past five years in some circumstances, such as when restitution has yet to be paid

Early release at halftime

Halfway through a probationer’s sentence (or after two years, whichever is more), probation officers will prepare a written report for a judge to consider whether to release the individual from their probation. The idea here is that probationers who are paying their fees, showing up on time and passing their urinalysis tests should be rewarded with shortened probation terms. One likely impact is that by reducing the period of time that a probationer can screw up, there will be fewer revocations to prison. The simultaneous side-effect will be a reduction in the overall probation caseload, with officers focusing on the troublemakers instead of those who are paying attention to the requirements of probation.

The new process will require more work and involvement by judges and probation officers but while the law requires judges to notify prosecutors and defense attorneys, there is no provision for any kind of court hearing – decisions apparently will be made in the privacy of the judges’ offices. Any attempt by a prosecutor or defense attorney to influence a judge’s decision would likely result in an illegal, ex parte communication.

Credit for treatment time

At present, it is not uncommon for drug or alcohol offenders to realize that it may be easier to serve time in a state jail or prison rather than address their problems by going into a rehabilitation program and then serving a subsequent term of probation where their situation can be monitored. A further disincentive to going into a treatment program is that if the person’s probation is later revoked, he or she gets no credit for the time in the rehab program. The bill provides that a judge must grant credit for time served not only for defendants who do well but also for those who successfully completed the program but were later revoked and then were required to serve time in a state jail or prison. Some prosecutors see the new arrangement as a way of rewarding defendants with less hard time even though they were revoked. One potential problem is that the measure provides no direction to the courts on how to calculate the credited time, an area that could well result in significant litigation by inmates filing writs of habeas corpus.

Community Service Not Mandatory

The measure makes it clear that sentences that require offenders to perform community service is optional, rather than mandatory, and removes all minimums on the number of hours required. The rationale is that some defendants, such as a single mom who has two kids and relies on public transit, might be better able to rehabilitate with other programs rather than completing hundreds of hours of volunteer work. Detractors point out the possibility of significantly disparate sentencing practices from one court to another.

On June 17, Gov. Perry exercised the option of allowing HB 1678 to become law without his signature.

Catch and Release Citations instead of arrests for some charges could provide jail relief

As the jail administrator in Bexar County, Dennis McKnight is at the center of the action for perhaps the most pressing problem in the San Antonio courthouse – how to keep the jail population below capacity and the jail out of hot water with the Commission on Jail Standards. Most days recently, the jail has been in the newspaper more often than it has been in compliance with the regulations, with an inmate count often exceeding bed space by a hundred or more.

McKnight’s resume suggests he’s well suited to the challenge – five years as a prosecutor, 10 as a defense attorney, taught awhile at law school, then seven years as first assistant criminal district attorney and now as a master peace officer in the sheriff’s department where he has overseen the criminal investigation, training, warrant, court security/transport and mental health units.

Last fall, McKnight was listening to an online interview with the conservative Republican chair of the state House Corrections Committee. Rep. Jerry Madden of Plano was telling a conservative think tank about the bipartisan plan being developed in the upcoming session to overhaul the Texas criminal justice system with a new emphasis on rehabilitation programs. McKnight liked what he heard. The jail chief decided to toss out an idea that he’d been thinking about, so he sent Madden an email.

McKnight suggested changing the law to allow peace officers who have detained a suspect on certain misdemeanor offenses – Class A and B misdemeanors that typically result in the accused being taken down to the jail and booked – to have a new option other than an arrest. Instead, the officer would have the discretion to issue a citation to a defendant and let the person report to court to be magistrated later.

That would mean fewer admissions to jail for individuals who currently sit a few hours – or overnight – waiting for a pretrial diversion interview or trying to contact a bail bondsman.

It would also leave the officer still patrolling the streets instead of on the road back to the jail with his arrestee. “Being out of service for three or four hours (when booking an arrestee), that’s one less officer who’s (out protecting) taxpayers against the arsonists and rapists,” McKnight said recently.

Sure enough, Madden liked the idea and drafted a bill, which Gov. Rick Perry signed into law June 15. It takes effect Sept. 1. Specifically, the bill would give law enforcement officers discretion to “cite and summons” instead of arresting alleged offenders for any of seven A or B class misdemeanors, including:

• Criminal mischief with less than $500 damage;
• Graffiti with less than $500 damage;
• Theft by check with less than $500 stolen;
• Theft of service with less than $500 stolen;
• Contraband in a corrections facility;
• Driving with an invalid license; and
• Marijuana possession (up to four ounces).

When the bill was considered at a public hearing in Madden’s committee, it was endorsed by both liberal and conservative think tanks as well as a long line of law enforcement organizations and employee groups. No one spoke against it.

In Travis County, Chief Deputy Jim Sylvester testified that last year, his county booked approximately 7,600 inmates for the particular crimes lined out in the bill. With a book-in cost of $171 per person, that works out to just over $1 million that could be saved, nevermind the lessened costs in the jail operation, he said. The committee also heard from a recently retired Republican legislator known for her conservative views.

“We let really bad guys go, and yet we have these scenarios where we’re having to utilize our time and our resources to arrest people for things as simple as somebody forgets to renew their drivers license,” said former state Rep. Suzanna Hupp on behalf of the Texans for Public Safety Solutions group that supports other changes proposed by Madden. “I think this conforms with the state’s plan to keep only the worst of the worst locked up.”

Hupp made a point that the bill does not “decriminalize anything. It just gives them an option of not arresting and issuing a citation.” Her comment about “decriminalizing” may have been a reference to the inclusion of possession of up to a quarter pound of marijuana in the laundry list of citable offenses. Although a vote for not immediately arresting drug offenders could be seen in future campaigns as being “soft on crime,” the law still requires an officer to fill out a complete offense report detailing the crime and for the charged individuals to face a judge and prosecutor for trial and potential incarceration and fines.

The potential for political blowback apparently didn’t phase most lawmakers – only one senator – and no representatives – was recorded as voting against the measure.

McKnight said legally, officers currently have the discretion to not arrest people for misdemeanors. “There are a lot of cases where an officer finds a suspect with a single marijuana cigarette, considers the hassle and time it would take to take them down and book them and decides to just throw it away.” The new statute actually places the discretion on whether to issue a citation with the individual peace officer, but McKnight acknowledged that in most police or sheriff departments, the decision is likely to be a department-wide policy decision based on the local political and law enforcement cultures. He compared it to how various departments treat speeding citations. “A lot of departments will say, we do not issue warning tickets, we ticket everybody. Others have policies that say they will not stop speeders until they’re 10 miles over the speed limit and then won’t ticket them unless they’re 20 miles over,” he explained. “That kind of policy works greats if you’re talking about patrolling an interstate highway but it certainly wouldn’t work in a subdivision neighborhood where most people are driving 20 miles an hour.”

Similarly, how much the new law affects jail populations will be dependent on whether sheriffs or municipal police departments are willing to try the new approach.

At the Texas Police Chiefs Association, General Counsel James McLaughlin said he thinks some municipal departments will take advantage of the law because of the time saved in not booking defendants immediately. “Each community does things differently, and I assume it will depend on local procedures,” he said, adding that the chiefs organization did not support or oppose the bill because it does not limit an officer’s power to make an arrest – “it uses that magic word ‘may’” – but that there could be some downsides.

Some big-time criminals, for example, have been caught after being detained on relatively minor charges, he noted. Oklahoma City bomber Timothy McVeigh, for example, initially was stopped for a traffic violation and then taken into custody on weapons violations. As with any new law, questions arise on how it will be implemented. Some in the court system, for example, wonder about the effect of not fingerprinting and photographing defendants who have fake IDs or who give officers the name and address of someone else – identity theft that could result in an arrest warrant being served on an innocent citizen.

Another issue: how to implement requirements that defendants be seen by a magistrate within 72 hours – does the officer have to state a time certain for the defendant to face the judge or does a judge have to be available whenever the defendant shows up? And what about the safety of a merchant who has called the police about a theft of service – the criminal gets a citation but if the person is still at the scene of the crime, he or she may decide to exact revenge on the accuser immediately.

One issue appears likely to arise in all 254 counties – how to amend each county’s indigent defense plan to account for providing a timely appointment of counsel in citation cases.

McLaughlin, the police chiefs’ attorney, said that from his experience, any change in the system will have unexpected consequences. He calls it the “balloon theory.”

“Whenever you push in on one place, something else happens somewhere else in the system,” he said. “Say a sizable number of offenders never show up to see a magistrate. That could end up with constables serving more warrants. You never know.”

Jail administrator explains need for new option (Below is an excerpt of a letter that Bexar County Jail Administrator Dennis McKnight posted on Grits For Breakfast, an Internet blog that focuses on rehabilitation-oriented changes in the criminal justice system last November. Gritsforbreakfast.blogspot.com, written by Scott Henson of Austin, closely monitors criminal justice and civil liberties issues in Texas.) Mr. Henson: I am the Bexar County Jail Administrator, a master peace officer, lawyer, former First Assistant Criminal District Attorney and Certified Criminal Law Specialist. Over the past two years I have suggested the police quit arresting non-violent misdemeanants, file the cases at large and summons the defendant to court. Take a scenario: An officer, several miles from the local metropolitan jail, makes a traffic stop because a driver failed to stop at a stop sign before exiting a parking lot on to a public street. This could be a situation where the driver is polite, admits error, passes the attitude test, gets a warning and goes on his way…or not. In our scenario, the officer approaches the vehicle and smells the odor of freshly burned marijuana. The officer asks the driver out of the car. On the console in plain view is a half ounce of marijuana in a clear plastic baggy. Now the officer arrests the driver for the marijuana and puts him in the back of his patrol car, calls dispatch for a tow truck and starts his offense report. The tow truck arrives 45 minutes later, the vehicle is inventoried, hooked up and 15 minutes later is off to the impound lot. The officer then begins his journey to the jail to book the driver. It is now rush hour and the trip takes one hour. The officer completes his report, puts the prisoner’s property in the property room and drives to the narcotics office to log and secure the marijuana. The officer can now return to patrol; except that his shift is over and his replacement is waiting at the station which is another 20 minute drive away and there are 10 citizen calls for service waiting. Our arrested person gets interviewed by pretrial services and does not have enough qualifiers for immediate release on personal bond. He is booked into jail. After completing all the intake and screening steps in the jail he finally gets a chance to call a family member to come and post bond. Unfortunately, our arrested person was on his way to work when stopped. He missed his shift and has been fired. Consequently, he doesn’t have enough money to get his car out of impound and it is sold at auction. His wife is embarrassed by the whole ordeal and divorces him, taking their two minor children with her. Because he has no transportation and a criminal case pending, he has trouble finding suitable employment as an unskilled laborer. He finally pleads guilty and because he has no prior criminal record, gets deferred adjudication. He falls behind in his child support and is arrested on an Attorney General’s child support case and put back in jail. Now, the children are on welfare, paid for by the taxpayer. The deadbeat dad is in jail, paid for by the taxpayer. The AG and the judicial system assigned to hear the case are paid for by the taxpayer. All because someone got arrested for a non-violent, Class B misdemeanor. Some people would say he got what he deserved. What about the taxpayer? Did they get what they deserved? Were the best interests of the criminal justice system, society, and the children served? Friend, there has to be a better way. Dennis McKnight, Bexar County Jail Administrator

Bill would have front-loaded probation funding

A major restructuring of how local probation departments are funded would have rewarded departments that fi gured out ways to focus on the early years of probation terms but a gubernatorial veto could make other community corrections initiatives diffi cult.

on June 15, Gov. Rick Perry vetoed HB 3200, a bill designed to encourage local Community Supervision and Corrections Departments (CSCDs) to focus their resources on the early years of a probationer’s sentence. Th e bill was sponsored by Rep. John Madden and Sen. John Whitmire.

“Th e riskiest period for probationers is in the fi rst two or three years. Th at’s when most things happen one way or another, they either get revoked or not,” said Bonita White, head of the Community Justice Assistance Division within the Department of Criminal Justice. White explained that the two key elements of the traditional funding formula – both state funding and fees paid by probationers – are based on the number of probationers being monitored by the local CSCD.

“It’s kind of a disincentive to allow people to get early termination,” she said. “In order to get money from the state or from the person (on probation), you have to have the person (still on probation).” At a Sunset Commission hearing last year, one probation chief testifi ed that judges who oversee probation departments are reluctant to terminate probation sentences early because of the fi nancial incentives that help fund the department.

But a key element of the criminal justice overhaul package was to change the funding formula to reward CSCDs that were successfully getting people off probation more quickly. Th e idea was that if the state changed priorities to implement a range of rehabilitative, intermediate sanctions that judges can use instead of just locking up inmates, there should be incentives to shorten probation terms for people who are doing what they’re supposed to be doing – attending meetings on time, paying fees and keeping their bodies free of drugs. Many local probation departments had already changed their approach. Such a program has already been in place for 26 CSCDs that have participated in a grant-funded pilot program that was initiated after a similar bill failed in 2005. Primarily in urban areas, as much as threequarters of the state’s population are covered by CSCDs that are already participating in the eff ort to reward early termination of probations. Th e result in the participating counties were fewer probationers being revoked over the past year and a half., White said.

But the strategy was not appreciated by some prosecutors. Shannon Edmonds of the Texas District and County Attorneys Association said there was concern that the approach would send the wrong message.

“From a policy point of view, the state is telling local probation departments, ‘the more criminals you put back on the street, the more money you’re going to get and if you have people put on probation and fail and then you try to send them to prison, we’re going to punish you fi nancially.’ It’s placing fi nances as premium over public safety,” Edmonds said.

In vetoing the measure, Gov. Perry cited the bill’s directive to penalize departments for each “technical revocation,” a term that is generally understood to refer to probationers who fail to attend meetings with probation offi cers or pay their probation fees or restitution obligations.

“(T)here is no statutory defi nition of what constitutes a ‘technical violation.’ Just as important, there is no guidance in the bill as to how much of a funding penalty should be applied for these technical violations,” Perry said in his veto proclamation. “Th us, we risk creating a system that has perverse fi nancial incentives which undermine the purpose of probation itself.”

In response, House sponsor Madden wrote a letter to Perry saying that he was “surprised and disappointed” by the veto, pointing out that the front-loaded funding formula has already been “widely accepted” among probation offi cers across the state.

He also expressed concern about the governor’s comment about the lack of a statutory defi nition of what constitutes a technical violation. “It is a term that has been used for many years, and thousands of probationers and parolees are sent to TDCJ for technical violations every year,” Madden wrote. “If the term is standard enough to be used to take away people’s liberty by incarcerating them in our prisons, it is certainly well enough defi ned for use in our probation formula funding.”

Th e practical eff ect is that while much of the Legislature’s community corrections initiative is designed to reduce the number of probationers who may be revoked, there are still fi nancial incentives to keep probation populations up, at least regarding local basic supervision budgeting.

But the veto will not terminate the eff ort begun through the 2005 grant program that rewards CSCDs that try the new approach. Th at grant program was formalized through passage of SB 166 by Rep. Madden and Sen. Royce West. under the new setup, CSCDs will be able to get additional grant funds if they use the new approach.

Money to pay for contracted beds zeroed out in ’09 For years, administrators of overcrowded state prisons have known they had a quick out when the Texas Department of Criminal Justice Institutional Division population got too high. Th ey could contract with county or private facilities to hold their over flow. Apparently indicating his expectation that community corrections initiatives will be successful, Gov. Rick Perry vetoed a $36.8 million appropriation to fund TDCJ contracts for holding inmates in excess of their capacity in the second year of the biennium. Money set aside for the 2008 fi scal year – $29.2 million – was not vetoed. “Th e amount of general revenue funds appropriated to TDCJ grew by almost 10 percent from the 2006-2007 biennium. Much of this substantial increase will support probation, parole and substance abuse treatment. To the extent this funding reaches our non-violent off enders and reduces recidivism, I support it because it will reduce the future prison population,” Perry’s proclamation stated. “yet, I cannot ignore the fact that, during the biennium, the average number of incarcerated off enders is only expected to grow by 2 percent and the average number of offenders under active parole supervision or adult probation is only expected to grow by 5 percent. In that context, a 10 percent increase is unreasonable and is reduced by this veto.” Th e practical eff ect is that TDCJ will only have $36.8 million for contracts with jails or private companies for additional cells over the next two years. Funds in that line item not spent in fi scal year 2008 can be carried over to be spent in 2009.

Blue warrants would have been able to post bail

For years, sheriff s and commissioners courts have complained about the cost of holding parolees who have been yanked off the street and placed in county jails awaiting a parole revocation hearing and a possible transfer to a state facility.

Because the paper form attached to the case fi le is blue, these prisoners – who are clearly defi ned in the law as “state inmates” – have long been referred to as “blue warrants.” In many cases, the parolees have been incarcerated for administrative violations of their parole – failing to meet with their parole officer, for example.

What’s doubly frustrating for jail administrators is that much of the time, the parolee is released after the 41 days that the law allows before a parole offi cer ever sees the person – then they let them go. It’s known as “jail therapy” – a way for a parole offi cer to get a parolee’s attention, at the county’s expense. Filed at the request of Bexar County, HB 541 would have off ered some relief to county jail crowding by allowing those parolees with technical violations or who been accused of some misdemeanors to hire a bondsman and post bail to obtain his or her freedom pending the parole hearing. Th e measure by Rep. Trey Martinez Fischer and Sen. Juan Hinojosa was the number one priority of the Sheriff s Association of Texas (SAT) and was endorsed by several major counties and numerous jail administrators.

Th e original bill was even more ambitious. In addition to the bail bond provision it would have moved up the deadline for parole revocation hearings from 41 days to 10 days and mandated that parolees be transferred to a state prison facility if one exists within 50 miles of the county. Th ose two provisions resulted in an attached fi scal note stating it would cost the state $36 million annually. Th at potential cost prompted Rep. Martinez Fischer to try Plan B. His committee substitute was limited to the bail bond provision, which still would have helped county budgets signifi cantly.

Brazos County Sheriff Chris Kirk, who chairs the SAT Legislative Committee, cited Jail Standards Commission data indicating that on average, there are about 2,700 technical violation blue warrants sitting in Texas jail on any given day, which costs local property taxpayers statewide about $42.5 million a year. Cost of holding parolees charged with another crime exceeds $49 million, he said (although this fi gure includes those charged with felonies and certain misdemeanors that would not have been eligible for bail bonds under the bill’s provisions).

no one testifi ed against HB 541 on either side of the rotunda. It passed the House by 132 to 7 and in the Senate, it was approved unanimously on the non-controversial “Local and uncontested” Calendar. But that didn’t prevent Gov. Rick Perry from vetoing it. “Although (HB) 541 applies only to administrative violations and certain misdemeanor off enses, these off enders should not be given freedom when their return to prison or other sanctions are imminent, particularly considering that the top 10 fugitives being sought by the Department of Public Safety are parole violators,” Perry said in his veto proclamation. “I understand and am sympathetic to the concerns of counties that are experiencing capacity problems at their jails because of the number of parole violators they must house, but I believe this bill will have negative unintended consequences, and other alternatives should be considered.” of the top 10 fugitives sought by DPS on July 1, none were being sought for technical violations or misdemeanors.