The conservative approach to criminal justice:
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Ten Years of Criminal Justice Reform in Texas

| August 1, 2017

This essay originally appeared in the July edition of Veritas, a quarterly publication of the Texas Public Policy Foundation.

If one were to search for an example to prove correct the old English proverb that “necessity is the mother of all invention,” they could do no better than to look towards the pickle that Texas found itself in a decade ago with its burgeoning prison population.

Throughout much of the state’s history, the question of what to do about criminal wrongdoing had a fairly straightforward answer: lock ‘em up. Decades of “tough-on-crime” sentencing policies emphasized a punitive, carceral approach, especially as crime reached a fever-pitch throughout the 1970’s and 80’s. Coupled with a lack of faith on the part of judges and prosecutors in the effectiveness of potential alternatives to incarceration, Texas’ prison population ballooned to well over 150,000 inmates by the early 2000’s.

What to do with all of these offenders had a simple answer, as well: build more prisons. Certain realities have a habit of asserting themselves, however. And in the case of Texas’ criminal justice system, the clock had finally run out on the efficacy of the just-build-more-prisons model—both in terms of simple economics and achieving good outcomes.

In 2007, the Texas Legislature faced an urgent situation. The Legislative Budget Board estimated that, in just five years’ time, the state would need to build as many as 17,000 additional prison beds to keep pace with its growing rate of incarceration—at a cost of more than $2 billion. In a legislative session featuring an already tight budget, there was no longer any enthusiasm for continuing to construct costly new prisons—particularly when stubbornly high recidivism rates signaled the diminishing returns of simply warehousing offenders.

Then-House Speaker Tom Craddick’s instructions to Jerry Madden—the then newly-appointed chairman of the House Corrections Committee and a current Right on Crime senior fellow—were simple: “Don’t build new prisons, they cost too much.”

Instead of signing off on a massive taxpayer bill, state leaders studied the drivers of prison growth and researched effective approaches to reducing recidivism. Legislators heard testimony from prosecutors and judges stating that low-risk, nonviolent offenders were often sent to prison for lack of effective alternatives. These criminal-justice professionals cited unwieldy probation caseloads along with lengthy waiting lists for drug courts or mental health treatment options, which make it difficult to supervise and treat offenders effectively.

After completing their lengthy survey, legislators came up with and adopted a stark alternative: an historic $241 million “justice reinvestment” package for treatment and diversion programs designed to stop prison expansion while protecting public safety. The front-end reform items included 800 new residential substance abuse treatment beds and 3,000 more outpatient substance abuse treatment slots — all to be used as initial options after sentencing and for those whose addiction problems undermine their compliance with community supervision.

Back-end reforms were no less substantial, and equally important. While examining drivers of prison growth, lawmakers discovered that the Board of Pardons and Paroles had been paroling offenders at a lower-than-possible clip because they lacked confidence that inmates were receiving necessary treatment in prison. The Board was also revoking a growing number of parolees because they had few other options. In fact, thousands of inmates approved for parole had to be wait-listed for either halfway houses or in-prison treatment programs. The result? Overflowing prisons.

So lawmakers filled the gap, adding 2,700 substance abuse treatment beds behind bars, 1,400 new intermediate sanction beds (a short-term program for those offenders who commit technical violations), and 300 halfway-house beds. They also capped parole caseloads at 75 to ensure closer supervision.

For a state system that had previously responded to capacity shortfalls by simply building new prisons, these reforms were a paradigm shift—and has exceeded expectations, both for public safety and cost control. Not only has the state averted the need to construct thousands of new prison beds and bolstered confidence in alternatives, but for the first time in its history, Texas is closing facilities: four adult units have been shuttered already, with an additional four slated for closure with the signature of the 2018-2019 budget into law.

Expanding treatment and community supervision capacity is great. Closing prisons is great. But achieving better public safety outcomes is the true measure of success, and Texas has been delivering.

In 2007, almost 16 percent of probationers failed and were revoked to prison. This figure fell to 14.7 percent by 2015. Thus, as more nonviolent offenders were diverted to community supervision instead of prison, probation success rates climbed. This likely stemmed from several factors, namely improved supervision — for instance, the use of graduated sanctions such as curfews to promote compliance — and court officials’ assessment that many of these individuals could succeed given the right resources in the community.

The gains in parole are even more impressive: Even with 11,000 more people on parole today than in 2007, more than 17 percent fewer crimes are being alleged against parolees now than previously.

And crime rates? Nationwide, the index crime rate fell 20 percent between 2007 and 2014. In Texas, it fell 26 percent. Even more impressively, this occurred while its general population increased and its number of prisons decreased. Simply put, crime and incarceration can be addressed at the same time, and Texas (and other southern red states) have proven it.

Texas hasn’t been idle since passing its initial reforms, either, with subsequent legislative sessions building on these earlier successes:

  • In 2009, the Texas Department of Criminal Justice was authorized to restore “good time” credits that were previously revoked for minor infractions.
  • In 2011, counties were allowed to enroll in performance incentive funding if they met certain requirements such as reducing prison populations, reducing recidivism, increasing the number of probationers providing victims with restitution, and increasing probationers’ employment rates.
  • Also in 2011, judges were allowed to give “good time” credits for probationers if they perform certain tasks, such as earning a degree, paying the full amount of restitution, and completing treatment programs.
  • In 2015 (and again in 2017, pending Gov. Abbott’s signature), orders of nondisclosure were expanded to certain first-time, non-violent offenders allowing them to seal their criminal records for employment, housing, and other purposes. Studies have consistently shown that proper housing and vocation are critical to successful reentry, and expanding nondisclosure laws will aid in this—while providing a free-market alternative to “ban the box” policies.

As reform efforts in Texas began to bear positive fruit in 2010, the decision was made to “take the show on the road,” giving birth to Right on Crime. As the nation’s premier conservative criminal justice reform initiative, Right on Crime seeks to leverage research and policy ideas—and mobilize strong conservative voices—to raise awareness of the growing support for effective reforms.

Thanks in part to Right on Crime’s efforts since its inception, many other states have realized the utility of those reforms, especially in light of similar budgetary or capacity constraints that Texas experienced. In 2010, South Carolina passed a justice reinvestment package along the same vein of Texas’ after lawmakers faced that ol’ familiar pickle: change course, or face unacceptable prison population growth.

The results? Again, similar to Texas. The number of inmates has since fallen to under 21,000, and instead of building new prisons, the state has closed six of them—saving $33 million in operating costs.

In 2012, Georgia passed comprehensive adult corrections reforms in an attempt to avert expected population growth. Between 2011 and 2014, the state eliminated virtually all of its previous backlog of newly-sentenced offenders into prison and saved more than $25 million. Over the same period, its violent and property crime rate fell 8 percent, according to the Pew Charitable Trusts.

Alaska, Louisiana, and Maryland have all recently passed similar justice reinvestment packages, which are now informed by a decade’s worth of data and experience that originated in large part here in Texas.

Those states that have passed justice reinvestment proposals have continued to see substantial reductions in crime rates and recidivism after their passage, while providing the sort of returns that the public demands of government: cost savings, increased sentencing flexibility for judges, an expansion of treatment beds for substance abuse, greater safety, and opportunities for wrongdoers to atone, get clean, and seize upon second chances.

These are the aims of the Center for Effective Justice and Right on Crime: To breathe some flexibility into a system that’s been without it for a long time. We know we can save taxpayers money. We know what works to reduce recidivism. We know that finite prison space should be reserved for those “we’re afraid of, not those we’re mad at.” We know that rehabilitation, not imprisonment, provides better outcomes for those who’ve fallen under the dark influence of drugs. And we know that, when possible, parents should be present in the lives of their children, rather than sit behind bars as unavailable wards of the state.

To accept the status quo is to accept a system that isn’t working as well as it could. This should provide conservatives all the motivation they need to learn about criminal justice and seek to improve it—lest reality intrude to make decisions for us.

Necessity is the mother of all invention? Indeed, it can be. But invention has given way to experience in Texas and other states—who have led the nation toward a more free and prosperous future where crime rates remain low and the public enjoys a commitment to justice. Who will be next to learn from that experience?

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MICHAEL HAUGEN is a policy analyst at the Texas Public Policy Foundation and its Right on Crime initiative.

Haugen is a graduate of Eastern Washington University, with a Bachelor of Science degree in Biology with Pre-Medicine Option, and a minor in Chemistry. He also holds an Associate of Arts degree in General Studies from North Idaho College. As an undergraduate, he participated in academic research in a molecular microbiology laboratory for two years, investigating genetic virulence factors and pathophysiology in microbes.

A blogger on his personal site for the last two years, he has provided insight into current topics in the news, Second Amendment issues, pro-life advocacy, as well as commentary on various ballot initiatives that have arisen in his native Washington State in recent years. His writing has appeared in National Review, Townhall, Washington Examiner, Trib Talk, and Breitbart Texas.

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