THINK OUTSIDE THE CELL

Building More Prisons Is the Mindless, Costly Wat to Fight Crime. Texans
Have Better Choices. Here Are Some.

The Texas Department of Criminal Justice is requesting funds for three
new prisons; two maximum security units each housing 2,000 inmates and
one medium security unit housing 1,000. This request involves the
spending of approximately $377 million for 5,000 inmates.

State Sen. John Whitmire, D-Houston, chairman of the Texas Senate's
Criminal Justice Committee, and state Rep. Jerry Madden, R-Richardson,
chairman of the House Committee on Corrections, have joined forces to
oppose this request. Under the banner of "thinking smart about crime,"
they argue that approximately 6,500 nonviolent probationers and
parolees with minor criminal and noncriminal violations should be
placed in residential facilities where they would receive treatment
for alcohol and drug abuse and counseling for the terms of their
conditional release.

I hope that Whitmire and Madden win this battle in the perpetual war
against crime. I am persuaded, however, that their agenda is but a
superficial tinkering with a very ugly Leviathan in need of a radical,
bottom-up overhaul.

Texas' criminal justice system was created by and is administered by
many thousands of good people dedicated to the pursuit of truth,
equality before the law and doing justice.

Sadly, however, piecemeal changes over many years have allowed for the
emergence of a mean-spirited assembly line machine that too often
conceals the truth and makes a mockery of the ideals of equality and
justice under the law. The egregious and unintended consequence is a
prison/industrial empire, which works to the economic advantage of
special interest groups. These groups' collective motto is: "If we
build them, they will be sent."

The only way for our state lawmakers to curtail the influence of those
who preach in favor of more prisons is to think outside the box. The
following proposals for systemic reform have the potential to reduce
the number of persons sentenced to prison while also reducing recidivism:

. Create a statewide public defense delivery system. Principles adopted
by the American Bar Association offer guidance in doing so. According
to the ABA, "the fundamental criteria to be met for a public defense
delivery system [are] to deliver effective and efficient, high
quality, ethical, conflict-free representation to accused persons who
cannot afford to hire an attorney." I have many friends with years of
experience representing criminal defendants. When the court appoints
them to a case, they provide the same diligent representation for
indigent clients as they do for those who can pay their fee. They are,
however, the exception.

What happens in the majority of cases with court-appointed counsel
looks more like this: During a morning docket call, shackled herds of
defendants charged with felony crimes receive a court-appointed
attorney who confers with them less than five minutes. The defendants
are informed of the plea offer from the prosecutor and told that they
have until noon to accept it or face a more punitive recommendation.
The attorney knows next to nothing about the facts of the case and has
no knowledge of the life of his new client, but tells him he has
negotiated the best possible deal. This assembly line process is
designed to clear cases from a crowded docket and occurs in the
context of the assumption of guilt and is largely controlled by the
prosecutor.

It is not a process for the discovery of truth and the doing of
justice. Indeed, there is no doubt that the unintended consequences of
this process include the conviction of innocent persons.

Money budgeted by counties for court-appointed legal counsel should be
diverted to the operation of the public defenders office. The
inherently inequitable process in which judges are authorized to
appoint legal counsel should be abolished.

. Follow the strong recommendations of the ABA, the National District
Attorney's Association and a commission by the U.S. Department of
Justice and abolish the strictly for-profit commercial bail bond
industry. This is a cancerous parasite run by private citizens whose
only concern is to generate a profit. They should not be allowed to
decide who will be released from jail. We should replace this industry
with a statewide pretrial service agency under the authority of the
judiciary. The employees of this agency would provide the courts with
critical information regarding who should and should not be released.

Abolishing the commercial bail bond industry would mean that many
defendants would have enough financial resources to negotiate the
services of an experienced criminal defense attorney.

. Create a statewide system of pretrial diversion and deferred
prosecution programs. The model for this legislation should be the
programs designed by the county attorney's office in Travis County.
These programs have the potential to divert from future criminal
activity multitudes of primarily young offenders guilty of writing hot
checks, shoplifting and possessing small amounts of drugs. In exchange
for remaining crime-free for six to 12 months, completing some
community service work and completing an assessment/evaluation, the
offender's case is dismissed. Immediately following the successful
completion, offenders would have the right to initiate the process to
have the arrest expunged from their record.

. Officially acknowledge that the war on drugs is a catastrophic
failure. The consequences of this failure are succinctly and
accurately stated by Orlando Patterson of Harvard University. They
include: "an enormous increase in the incarceration of young,
disproportionately minority Americans, resulting in the waste of human
resources and the creation of a prison culture that converts
nonviolent addicts into hardened criminals, without any impact on drug
use."

Lt. Gov. David Dewhurst and Speaker of the Texas House Tom
Craddick should appoint an interim committee to seek out the
essentials of rational and humane drug laws that promote the safety
and health of all citizens.

. Fix the Board of Pardons and Paroles. Every year the six board members
and 12 commissioners have to make some extremely tough decisions
regarding the release of thousands of inmates eligible for parole.
Many of the inmates have a history of violence in which the lives of
victims and their families were shattered or destroyed and they were
incarcerated for another crime of violence.

The public has a right to
demand that the decisions of these 18 people are consistent with
approved release criteria. The Sunset Staff Report presented to the
current Legislature unambiguously documents that from 1987 to the
present, "the Board of Pardons and Paroles has not adequately updated
and used required parole guidelines to help ensure the most
consistent, appropriate release decisions."

The result is that our prisons have remained full of thousands of
inmates who, according to all of the approved release criteria, could
have been paroled with no risk to public safety. This failure to free
up prison beds has fueled the demand for many millions of tax dollars
to build new prisons.

The entire parole process should be reinvented and given the resources
to accomplish its mission. Perhaps the time has even come for the
state to abolish parole and create a "truth-in sentencing" system
similar to that used in the federal system. Since the abolition of
parole, the majority of federal prisoners must be confined for 85
percent of their sentence in real calendar time with the remaining 15
percent available for credit for good behavior. Many state inmates are
in favor of such a system because it replaces uncertainty and the
potential abuse of discretion with certainty and a known date of release.

. Reduce the number of probationers, parolees and persons on mandatory
supervision who are sentenced to and returned to prison for minor
crimes and noncriminal violations. For at least 20 years, legislators
have voiced the complaint that every year this group of offenders is
an unnecessarily large percentage of new admissions to our prisons and
fuels the call for more prisons. I do not have a definitive solution
that would win a consensus of the key players, particularly, judges
and prosecutors. For the present, the only realistic hope is that Sen.
Whitmire and Rep. Madden can use their combined political muscle to
deliver more funds for the statewide development and expansion of
community sanctions and treatment programs.

. Increase funding for in-prison vocation and education programs and
Project RIO. Recent public opinion polls inform us that the majority
of Americans have two inseparable beliefs regarding what can and
should occur in the lives of prison inmates: 1) most of them are
capable of changing into law-abiding members of society and should be
given a variety of opportunities for change. 2) Upon release, they
should be "better" persons.

What are the best available tools for changing inmates into better
persons?

There are no magic wands containing virtue dust we can give out to
prison administrators to wave over the heads of inmates immediately
prior to release that will turn them into better people. But numerous
research projects verify that the recidivism rate of ex-offenders who
complete vocation and education programs is substantially less than
those who do not. Inmates who learn a skilled trade and/or complete
high school are more successful after re-entry. And those who manage
to earn a college or university degree confirm that these programs are
the most successful and cost-effective tools of crime prevention. The
1994 abolition of Pell Grants for prison inmates was a totally
uninformed and shortsighted decision by the U.S. Congress.

Key players in Austin who are really "thinking smart" about crime
prevention should: approve a substantial increase in state funding for
the continuation and expansion of post-secondary education; and wage
an intense lobbying campaign in the halls of Congress to restore
prisoner eligibility.

Project RIO, the re-integration of offenders, is a monumentally
successful program that should receive a major increase of funds. This
program provides job preparation services to prison inmates to give
them a head start in the post-release search for employment. Since its
creation in 1985, it has established a track record of assisting and
finding employment for thousands of ex-offenders whose recidivism rate
is significantly less than nonparticipants - and it has saved the
state millions of real tax dollars.

This agenda is not grounded in the romantic and false belief that
there is a treasure in the heart of every criminal offender just
waiting to be discovered. Some are incorrigibly mean and evil.

It is grounded in a belief that the majority of criminal offenders are
not enemies to be conquered and destroyed. They are human beings who
should be given opportunities for change and restored to our
communities because it is in the public interest to do so.