By David W. Murray and Brian Blake*
Advocates for federal sentencing reform point approvingly to criminal justice approaches undertaken in recent years in Texas. These measures are often touted as “conservative approaches” to sentencing reform, and therefore should appeal to Republican lawmakers.
A closer look, however, shows that those advocates are making two elementary mistakes, even dangerous ones: first, by comparing Texas’ state reforms to a markedly different set of proposals currently being considered at the federal level, and second, by assuming Texas’ prison population is comparable to the vastly different federal inmate population.
Let us begin with the inapt comparison between Texas’ prison population and the federal prison population. The reforms undertaken in Texas rely heavily on diversion programs for low-level drug offenders. These programs channel offenders towards programs such as court-mandated drug treatment instead of time behind bars.
Texas’ massive prison population is ripe for these kinds of reforms. According to a 2014 report by the State of Texas, the state’s jails and prisons held 24,005 drug offenders (16 percent of the total), of which 14,256 were incarcerated for possession offenses. Diversion is good policy, especially when taking into account a 2007 Texas state analysis that found 60 percent of possession offenders coming into the Texas criminal justice system were first-time offenders.
But while diversion programs like this have shown promise at the state level, they don’t translate to the federal level because of the different type of offenders housed there. The latest report on the federal prison population shows that 99.5 percent of federally charged drug offenders are incarcerated for serious trafficking offenses, often with associated violence. Unlike in Texas, there are virtually no possession offenders in the federal system to divert, and of the mere 247 that do exist, most have been allowed to plead down to possession offenses from more serious trafficking charges after cooperating with law enforcement.
Therefore, while adjusting responses to relatively low-level possession offenders such as the ones in the Texas system may be effective at the state level, there is no comparable population in our federal prisons to direct these policies toward.
Turning more specifically to the Texas policies themselves, the reforms, passed in 2007, have many worthwhile features and positive claims concerning their impact. Though the initial measures were expensive (most accounts note the $241 million investment in rehabilitative programs for those involved with the criminal justice system), proponents argue that the interventions have produced even larger taxpayer savings through reduced prison costs, while not increasing crime. In fact, they argue that the proposals have reduced crime rates (down 29 percent) and further have reduced the rate of recidivism (down 9 percent) and incarceration (down 14 percent).
Critics have some counter arguments, noting that crime rates (and more recently, incarceration rates) have been in decline nationally in most if not all states, including those that did not follow Texas’ example. So the attributable impact of the particular programs is disputable.
New York City Commissioner Bill Bratton, and others, have pointed instead to measures associated with “broken windows policing,” as responsible for drops in both crime and incarceration. Because it includes actions like pursuing street-level drug use, which Texas reforms propose to ignore, “broken windows” presents policing practices that the Texas model would fail to support.
It is nevertheless possible to stipulate that the claimed savings and public safety benefits are real, and still question why Congress should follow this model.
The crucial realization is that though both sets of actions, in Texas and in Washington, D. C., bear the label of “sentencing reform,” the resemblance ends there. There is little in the Texas proposals that has any bearing on the type of reforms that Capitol Hill lawmakers are debating.
This means that regardless of state-level success in Texas, neither reduced crime, reduced recidivism, nor greater criminal justice savings will follow for federal-level changes made in Washington, whether conservatives endorse the measures or not.
First, what is proposed in Congress is the mass early release of already convicted drug felons currently incarcerated in the federal prison system, which houses about 196,000 inmates. In contrast, the Texas reforms apply to those involved in the criminal justice system (both jail and state prisons, as well as probationers and parolees) at the state level, a population not similar to the federal prison population, as noted above.
More importantly, the Texas reforms speak not at all to the mass release of convicted felons prior to their sentence completion. Rather, they are proposals addressed to slow the growth of the Texas prison population, through diversion of those arrested into prison alternatives upon sentencing, as well as efforts to increase rehabilitation services for those criminally involved.
There are, as noted, some good ideas, and implementing more drug courts (of which there are now more than 3,400 nationally), which “divert” offenders with underlying substance use issues into supervised treatment instead of prison, or applying small but “swift and certain” responses to parole/probation violations are two of them.
Such measures may bring reductions in future criminality, and could lead to a reduced need to build prisons. Texas is said to have forestalled the construction of several prisons on this account.
The rehabilitation measures may, however, require even more services from criminal justice employees, and hence, more salaries and costs down the line. There are few comparable provisions in proposed federal reforms, such as funding for intensified rehabilitative services; perversely, the surge of those slated for release could overwhelm available reintegration resources.
Though some interventions are positive, changing thresholds for what counts as a criminal offense (such as weight of drugs possessed) presents a slippery slope. Requiring, for example, greater drug amounts or property crime values (like Texas just enacted in this year’s legislative session) before a criminal justice response is triggered should reduce the number of future prisoners, but at the risk of what Daniel Patrick Moynihan termed “defining deviancy down.” Taxpayers may perceive savings, but the victims of the respective crimes are not likely to share in that benefit, as the many Californians currently dealing with the negative effects of Proposition 47 can attest.
Taken to its conclusion, the logic of changing criminal penalties (but not crime itself) to lower the prison population has value if the penalties were truly excessive and needlessly increased incarceration. That said, we should guard against a point of diminishing returns, where real protections become eroded.
Wherever that balancing point between making justice “smarter” and the risk of increasing needless victims, those wanting to adopt “sentencing reforms” that have no bearing on actual proposals being advanced at the federal level are only fooling themselves.
*About the authors:
David W. Murray, Senior Fellow
Brian Blake, Senior Fellow
This article was published by Hudson Instutute