Report Says Texas State Jails an Expensive Failure in Need of Reform

by Matt Clarke

According to a November 2012 report published by the Texas Public Policy Foundation, a conservative think tank, the Texas state jail system is an expensive failure – with 90% of the cost of conventional prisons, but a much higher recidivism rate. The report recommends initially placing all state jail defendants on probation instead of incarcerating them and establishing a system of rehabilitation programs for those on probation and probation violators who are sentenced to state jails.

In 1993, the Texas Legislature sought to reduce the overcrowding in the prison system by creating a new class of offense – the state jail felony. Many crimes which had formerly been third-degree felonies and some that had been Class A misdemeanors were reclassified as state jail felonies. The idea was to divert the low-level drug and property defendants out of a track that led to prison. To accomplish this, judges were required to first place convicted state jail defendants on probation, only sending them to a state jail for 60 days as a kind of "shock" probation or for a maximum term of two years if they violated the probation or were convicted of a subsequent state jail felony.

The state jails were also supposed to be part of the community supervision system and heavy on treatment and education to assist rehabilitation. Perhaps this approach was a little ahead of its time because, before it was fully realized and without any evidence of the success or failure of the state jail concept, the two subsequent Legislatures instituted changes that made state jails little more than warehouses for low level felons. Unlike prisoners in the state prison system, state jail prisoners had no opportunity to earn good conduct time. With no rehabilitation programs, industrial jobs, or good conduct time and few privileges, state jails became difficult to manage.

Eventually, the state jails were folded into the state prison system and prisoners incarcerated there were allowed to earn some good conduct time. Thus, they completed their transformation from an extension the judges' community supervision to a branch of the state prison system.

In 2012, 99.7% of state jail defendants were sentenced directly to state jail incarceration for sentences ranging from 6 to 24 months with no guarantee of rehabilitation or treatment options. State jails cost nearly as much as state prisons, yet state jails releasees recidivate faster and in greater numbers than those released from state prisons.

The original state jail concept called for work, rehabilitation, education and recreation programs on a 90-day cycle. The idea was that the most a state jail defendant would be sentenced for was a 90-day term for a probation violation, although judges would have the discretion to sentence probation violators for any term between 75 and 181 days before returning them to probation.

By 1997, the Legislature had removed all mandatory probation for state jail felons. Judges quickly used the option to send state jail defendants directly to jail. In Fiscal Year 2011, all but 78 of the 23,231 state jail defendants were sentenced directly to state jail and only 158 were ever released to community supervision. Meanwhile, the rehabilitation programs all but disappeared from state jails, victims of legislative budget wars.

"We're not doing anything for these people while they're in state jail," said the report's author, Jeanette Moll. "We're doing nothing to break the cycle of criminality."

"State jails were about intense treatment and education, or 'get in, get out,'" according to State Senator John Whitmire, who proposed the legislation that created the state jail system in 1993. "The problem is now people are getting in and out without much treatment and education."

It cost the State of Texas between $44.12 and $49.56 per day to house a prisoner in the state prison system in 2010. The same year, the daily cost of housing a prisoner in a state jail was $43.03. That is 87 to 97.5% the cost of a state prison bunk.

The reincarceration rate within three years of release for state jail prisoners released in 2007 was 31.9%. The 3-year rearrest rate for 2006 state jail releasees was 64.2%. This contrasts with a reincarceration rate of 26% and a rearrest rate of 48.8% within three years of release for prisoners released from state prisons. In short, the reincarceration rate for state jail releasees was 23% higher than the rate for state prison releasees. This also adds to the overall costs of state jails.

The report recommends returning the state jail system to its original state to reduce costs and increase effectiveness. In short, it recommended that the system be modeled after the Hawaii HOPE court model with probation as the primary sentence, but swift and sure sanctions – including incarceration – in the event of a violation. Using such a model, the Hawaiian courts achieved a 50% reduction in violations and new offenses, an 80% reduction in missed probation appointments and an 86% reduction in positive drug tests.

The report specifically recommended that the legislature remove the 1995 and 1997 amendments to the Code of Criminal Procedure which allowed a judge to sentence a state jail felony defendant straight to a state jail without first trying community supervision. Community supervision programs would include drug treatment and vocational training programs. Some community supervision programs would feature residential placement with the possibility of work release.

Should community corrections fail, the probation would be revoked and the person incarcerated in a state jail. But the state jail would differ strongly from the current warehousing model. Under the report's recommendations, state jails would also feature drug treatment and vocational education programs. They would also assist releasees with finding employment and possibly include post-release supervision, a feature wholly lacking in the current state jail system.

Let's hope that the Texas Legislature is open to the idea of reforming the state jail system. However, given its history of evolving state jails into just another branch of the prison system, reform seems unlikely.

Sources: "Putting 'Corrections' Back in State Jails: How to Reform Texas' Expensive, Ineffective State Jail System," Texas Public Policy Foundation; www.texaspolicy.com; Texas Tribune; www.knes5.com

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