PROBATION BILL LIKELY TO RETURN

With Texas' state prison population expected to exceed capacity by
nearly 10,000 beds as soon as 2010, state lawmakers face a public
policy crisis.

In its legislative appropriations request for fiscal year 2008-2009,
the Department of Criminal Justice (TDCJ) called for the biggest
expansion in prison building in over two decades. Whether legislators
have the political will to commit to spending at least $520 million
on construction is another matter.

DJC's plan envisions three new prisons and 5,080 new beds, 500 of
them for a DWI treatment center. The plan also recommends 850 beds
for special drug treatment prisons, substance-abuse treatment centers
for parole-ready inmates, halfway houses, and community-based
treatment programs for minor offenders.

So far, legislative response has been lukewarm at best. Texas is
already home to the largest prison system in the country. Building
more prisons seems an unlikely option given the state's current
fiscal situation. With an expected tight budget next year and a
projected $20+ billion shortfall in the out years, there won't be
much wiggle room in the budget.

Prison overcrowding is a recurring problem for the state. In the
1990s, Texas completed a $2 billion expansion program, tripling the
size of its prison system. Yet the state has recently exceeded its
151,000 inmate capacity and must rent beds from county jails. Part
of the reason is that Texas has one of the nation's highest
incarceration rates - 694 inmates per 100,000 residents - compared to
the U.S. average per capita of 488.

The Legislature may look to other options to relieve prison
overcrowding, such as easing probation requirements, changing the law
on sentencing for nonviolent offenders and creating new
community-based programs to keep at-risk individuals from seeing the
inside of a prison cell.

Rep. Jerry Madden (R-Richardson) and Sen. John Whitmire (D-Houston)
have vowed to reintroduce legislation next year that would reform the
state's probation system. According to TDCJ, Texas' probation term is
67 percent longer than the national average. Madden and Whitmire
would shorten minimum probation terms for nonviolent felons from 10
years to five while also expanding community supervision and
treatment programs. A similar bill the duo passed last year was
vetoed by Gov. Rick Perry. Madden and Whitmire hope next year will be
the charm.

According to the Legislative Budget Board (LBB), probation
revocations are a significant driver of the increase in the prison
population, accounting for 30 percent of prison admissions annually.
In 2004, according to Whitmire, more prison sentences resulted from
probation revocation than from direct sentencing by the courts. In
fact, more than half of the 26,239 felony probationers were sent to
prison due to technical violations such as failure to keep
appointments with probation officers or to perform court-mandated
community service.

"We do make it, in many instances, impossible for a probationer to
succeed," said Whitmire at a recent public policy forum at the Texas
Public Policy Foundation.

Nearly 400,000 Texans are on probation for crimes ranging from
kidnapping to petty theft to white-collar offenses. Almost half of
probationers are under direct daily or weekly supervision. The rest
are under some form of indirect or occasional supervision.

Changing probation terms for low-risk individuals from 10 years to
five would reduce probation officers' caseloads and allow for
increased supervision of those who really need it, argue Madden and
Whitmire. Judges would also have more discretion as to extending
probation terms beyond five years.

Lawmakers may also consider changing the way the law treats substance
abusers, such as people convicted of driving while intoxicated (DWI).
According to Whitmire, approximately 4,000 DWI repeat offenders are
housed in maximum security prisons that receive no drug treatment
for their addictions. The Legislature cut $94 million in rehab
programming from the prison system two years ago. It makes more
sense, Whitmire said, to keep these nonviolent offenders in community
treatment centers - where they could get help - than to imprison them.

"We're all tough on crime, but we've got to be smart and the smart
things to do are not necessarily those such as 'Lock them up and
throw away the key,'" said Madden, "but are those things that provide
the programs and provide the insight to do things differently than
what we've been doing."

Last session, Madden proposed expanding Drug Courts throughout the
state. Currently eight counties use this type of system for
non-violent drug-related offenders. Drug Court programs offer
judicially led intensive supervision, treatment sessions, and drug
testing for up to one year to 18 months.

Proponents of the system argue that those who successfully complete a
drug court program have much lower recidivism rates than
non-participants. Madden's bill would have required counties with
more than 200,000 residents to implement a drug court if a county
could secure state or federal funding for the program. In addition,
the bill would have expanded the use of probation for nonviolent,
repeat drug offenders, freeing up the space in state jail for more
serious criminals.

TDJC and LBB estimate that the state needs to find up to 10,000 new
beds to house prisoners by 2010. The state currently has already
exceeded its 152,000 bed capacity which includes state jails, prisons
and transfer facilities. TDJC now leases over 1,800 beds from county
jails at a cost of $40 per bed a day. The LBB projects that it will
need to lease an additional 2,000 beds by August of next year.

The agency can lease beds from privately operated prisons; however,
state law imposes a cap of 1,000 beds per private prison with a total
cap on the number of private prison beds at 4,580.

Marc Levin, director of the Center for Effective Justice at the Texas
Public Policy Foundation, has called the caps "arbitrary." Levin
advocates eliminating the cap altogether to allow private entities
to compete with county governments in leasing beds to the state.
According to Levin, privately-operated prisons can do the job
cheaper, at an average cost of $20 to $30 a day, excluding medical
costs.

Private prison facilities typically offer more educational programs
and treatment services to prisoners than do county jails, which were
generally designed as holding cells for arrestees awaiting trial or
court arraignment.

Madden said he would introduce a bill in the next session to increase
the number of beds by which TDJC can lease from private facilities.