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Texas Lawmakers Consider State Jails a “Complete Failure”

by Matt Clarke 

In 2019, the Texas House Committee on Criminal Jurisprudence issued a report that called the state jail system “a complete failure.” Created in 1993, the category of crime known as a state jail felony was intended to segregate certain nonviolent, low-level offenders – especially those convicted of property crimes and drug charges – that lawmakers thought less deserving of punishment in a state prison and more entitled to a second chance. 

“The idea was that you don’t want to mix them with a population of hardened criminals we’re truly scared of, where the hardened criminals coach up the emerging criminals,” explained state Rep. James White, head of the House Committee on Corrections.

Instead, defendants convicted of state jail felonies – the category now covers over 170 crimes, punishable by six months to two years in jail and/or fines up to $10,000 – would be placed on probation, receiving rehabilitative services and programming to target their “underlying issues,” such as substance abuse and mental illness. To establish the new state jail felony category, lawmakers reclassified a number of Class A misdemeanors; a similar number of third-class felonies also became state jail felony offenses. 

Two years later, in 1995, Texas opened its first facility for state jail prisoners. By that time, “the idea was that those who are on probation and are having trouble with complying with the conditions would be able to go to state jail for a short period and get on the right track,” said Marc Levin, vice president of criminal justice at the Texas Public Policy Foundation (TPPF), a conservative group.

But, added TPPF’s Derek Cohen, “The problem is that we never funded the rehabilitation component, so we ended up making a system of short-term warehousing for offenders that either had persistent drug addiction or low-level felony offenses.”

With few rehabilitative services and little programming available to prisoners who were held in state jails without even good-conduct time – sentencing enhancements were specifically prohibited in the authorizing legislation – the state jail system became a revolving door. The rearrest rate for offenders within three years after release soared to 63 percent, far higher than the state prison system’s 45 percent. The re-incarceration rate for state jails currently stands at 31 percent, versus 20 percent for those released from state prisons.

How did this happen? Rep. White pointed to the “tough on crime” attitudes that spread later in the 1990s, after the state jail system was established.

“That early ‘90s [idea of] we’re going to treat the addiction and help address the [criminal] tendencies of the justice-involved kind of got swallowed up with the tough-on-crime thing,” he said.

State prisons quickly filled to capacity, sending overflow prisoners to the state jail system’s 17 facilities. Currently about half of the 21,500 prisoners held in state jails have been convicted of violent crimes, but there is no space for them in state prisons. When the legislature abolished mandatory probation for state jail felonies in 1999, the state jail system – already housing violent offenders and plagued by high rates of rearrest and re-incarceration – began to fill with just the sort of recidivist criminals it was not designed to handle.

Further, there is section 12.44 of the Texas penal code, which allows a court to sentence a state jail felony defendant to a term less than the 180-day minimum. Taking into account time spent awaiting trial in county jails, many defendants opt for a plea bargain that results in a shorter “12.44 sentence” in the state jail system. 

“All the parties are going to agree to that,” observed Shannon Edmonds, a prosecutor’s legislative liaison with the Texas District and County Attorneys Association, “because that means that case moves off the docket and that the next child abuse case, or robbery case or whatever can be dealt with.”

Expenses associated with community supervision, such as courts costs, childcare and drug screening, also make shorter 12.44 sentences more attractive, added Doug Smith, senior policy analyst for the Texas Criminal Justice Coalition (TCJC). 

As a result, the average sentence served in a state jail is just over nine months – long enough to lose a job, a home or family connections, but not long enough to complete an effective substance abuse treatment or job training program. With such short sentences, less than one percent of prisoners released from a state jail have any probation time left to serve, during which they could get similar help under community supervision. 

The administration of state jails has already been merged into the state prison system. Rep. White hopes his fellow lawmakers will consider limiting the use of 12.44 sentences as well as incentivizing local communities to come up with innovations, such as a 2016 initiative in Harris County that put all low-level drug convictions on one court docket to better supervise completion of rehabilitative services – the completion rate is now 91 percent – and to divert more cases, now up to 85 percent, to community supervision.

According to the TCJC, another option is pretrial programs, which offer an alternative to state jail sentences. “They allow counties to interrupt the cycle by more immediately connecting arrestees to community-based substance use or mental health treatment, which address the underlying causes of criminal behavior; and through rigorous supervision, these programs create strict accountability,” the organization states on its website. “This helps mitigate the risk of releasing a person before trial who may have a history of criminal justice involvement due to untreated substance use or mental health issues. The results of such programs are significant: Diverting people from jail and into community-based services ($7/day) produces 30-50 percent lower recidivism rates, depending on whether the individual was to be sentenced to county jail ($60/day) or state jail ($53/day).” 



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