TPPF COMMENTARY: Texas No Longer Repeat Offender on Prisons

By Marc Levin

“If you do what you’ve always done,” the motivational speaker Anthony Robbins declares, “you’ll get what you’ve always gotten.” And in Texas, building more prisons has always led to…building even more prisons.

Last January, the Legislative Budget Board (LBB) told lawmakers the state would need 17,000 more prison beds by 2012, at a cost of $1.3 billion to build and $306 million per year to operate.

Rather than being handcuffed to the past – to the detriment of the taxpayers – legislators charted a new course that emphasizes alternatives to incarceration for nonviolent offenders while continuing to lock up violent and sexual offenders.

Earlier this month, the LBB released an updated report which concluded that, largely due to last session’s reforms, those new prison beds were no longer needed.

That is a historic shift in a state with the nation’s second highest incarceration rate; one that is 10 times that of China. Between 1978 and 2004, Texas’ overall population increased 35 percent, but Texas’ prison population grew by 278 percent.

Lawmakers engineered this turnaround without lowering the penalties for any offense. In fact, they lengthened sentences for sex offenses against children and repeat auto burglary.

Parole policies – under which 28 percent of eligible inmates are approved, compared with 79 percent in 1990 – were also left unchanged. The most serious violent offenders are no longer even eligible for parole.

While remaining tough on crime – particularly the violent crime Texans justifiably fear – lawmakers adopted policies that are expected to reroute from prison thousands of first-time nonviolent offenders and technical violators of probation. Technical violators refer to the 11,000 probationers revoked to prison every year for conduct other than a new crime, such as a missed meeting or positive drug test.

Due to reforms made last session, many of these nonviolent drug and property offenders who can be rehabilitated won’t be tossed into a prison cell next to a murderer or rapist to learn new tricks. However, they also won’t be running free…and they certainly won’t be checking into the Holiday Inn.

The cornerstone of the 2008-09 criminal justice budget is 4,000 new treatment beds, most of which will be privately operated. Like prisons, these are secured facilities, but they provide substance abuse treatment, life skills, and other interventions in a shorter time period (usually between 90 and 180 days) without co-mingling these low-level offenders with convicts serving longer sentences for more serious crimes.

Many of those diverted from prison to these facilities would otherwise be among the 8,400 other offenders in Texas prisons today who are incarcerated solely for drug possession, a separate crime from drug dealing. The length of time served is the best benchmark for most serious violent offenders because incapacitation is the primary goal, but it makes more sense to spend a fraction of the money to put many nonviolent drug possession offenders into a shorter-term community-based facility where they can get clean, keep in closer contact with family, and prepare to find a job and reenter society.

The Legislature also added 3,000 outpatient drug treatment slots. Interestingly, the new LBB estimate does not assume any diversions from prison will result from those, although lawmakers hope some prosecutors and judges will use these new slots in lieu of state lockups.

Accordingly, state officials should monitor implementation of the new treatment resources to ensure that all counties are participating. For example, Harris County accounts for more than half of the offenders sent to state jail for less than a gram of a controlled substance. The governor’s office, which distributes millions in criminal justice grants, should prioritize those counties that are fully utilizing alternatives to incarceration that taxpayers are already funding.

While it is too early to fully assess the results of these reforms, there is no evidence of a crime wave. Violent crime declined last year in both Houston and Dallas.

Because Texas lawmakers were willing to embrace change, the only Texans receiving a “get out of jail free card” are taxpayers who would have been on the hook for billions in unnecessary prison costs.

Marc A. Levin, Esq., is Director of the Center for Effective Justice at the Texas Public Policy Foundation, a non-profit, free-market research institute based in Austin.

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TPPF commentary: Correct competition in corrections

Privately managed correctional facilities have come under heightened scrutiny as a result of the severe problems uncovered at a Texas Youth Commission contract detention center operated by the GEO Group. However, the problem with privatized corrections is not the result of privatization per se, but rather in the sole focus on cost-cutting in such contracts. In this week's commentary, Marc A. Levin, Director of the Foundation's Center for Effective Justice, argues that private correctional facilities can provide substantial benefits to the state if they are used as laboratories of innovation to develop and test new programs to increase educational and employment outcomes and reduce recidivism of offenders.

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Correct Competition in Corrections

by Marc A. Levin

Albert Einstein’s observation that “in the middle of difficulty lies opportunity” could easily apply to the Texas Youth Commission.

Following a series of abuse scandals, the closure of a TYC contract detention center operated by the GEO Group prompted a Texas Senate hearing last week on the role of private operators in juvenile and adult corrections. Texas should not abandon the use of competition in corrections, but this is a promising opportunity to boldly restructure such outsourcing.

While the conditions at the GEO lockup were unsanitary, the sexual abuse cases at the core of this spring’s TYC scandal occurred almost entirely in government-operated facilities. Moreover, TYC spends $62,000 per year per youth on its own facilities, but its contract with GEO Group for this facility was $24,000 less. Of course, there’s no virtue in saving money if kids are being neglected, but the conditions could and should have been remedied for a cost far lower than that difference.

At the Texas Department of Criminal Justice, private adult prisons save taxpayers 10 to 15 percent and are contractually required to provide exactly the same product as TDCJ facilities – right down to the cell locks. However, that's not necessarily a good thing, as one-third of TDCJ offenders are re-incarcerated within three years of release. Similarly, the GEO Group provided the same re-socialization programming as TYC’s own facilities, and most likely had a recidivism rate equal to TYC's dreadful 52 percent.

The true promise of competition in corrections lies not in saving money while providing the same product as state-run prisons, but in harnessing the innovation of the private sector to develop programming that will reduce recidivism, since 99 percent of inmates are ultimately released.

The average Texas inmate has a sixth grade education and lacks vocational skills, both of which are highly correlated with returning to a life of crime. Future requests for proposal should not simply seek the lowest bidder, but combine a per diem with performance incentives based on the recidivism rate, the number of GEDs earned by inmates, demonstrated educational progress by inmates , and the amount of restitution and child support paid by inmates through earnings from on-site private industry work programs. Private operators would thus compete to come up with innovative programs that measurably reform offenders, reducing the crime rate and the future burden of incarceration on taxpayers.

Oversight of private facilities must also be restructured. TYC-employed monitors, seven of whom have since been fired, evidently failed for months to report the squalor at the GEO facility. Ordinarily, a corrections agency has an incentive to whitewash problems at all facilities because they reflect poorly on an agency’s oversight. However, the situation reverses when, as in the case of TYC, capacity is being reduced and the agency might want to safeguard its own budget, employees, and turf.

To avoid this kind of Jekyll and Hyde oversight, legislators should assign to the Texas Commission on Jail Standards the authority to monitor conditions at private lockups. The Commission effectively performs this function for county jails and would not face the conflicts inherent in simultaneously contracting and competing with the private operator.

Besides offering innovation and cost control if contracts are properly structured, privately operated facilities have several other advantages. First, they can be used as a stopgap measure for overflow while new prison diversion initiatives reduce the need for new prisons. State-run lockups are virtually impossible to close due to the jobs they create in those rural communities.

Private prisons also buffer against overly powerful prison guard unions. The state corrections employees union in California has made more than $10 million in political donations and sank Gov. Arnold Schwarzenegger's December 2006 plan for prison alternatives. As a result, California taxpayers will pay $7.4 billion for new prisons, while some guards make more than $100,000 a year.

Competition can work in corrections, but policymakers must think outside of the cell rather than trying to wring the last dollar of savings from replicating the state's cookie cutter corrections programs.

Marc A. Levin, Esq. is Director of the Center for Effective Justice at the Texas Public Policy Foundation (www.texaspolicy.com), a non-profit, free-market research institute based in Austin. He can be reached at mlevin@texaspolicy.com.

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