The prison population in the United States experienced an unprecedented expansion between the 1970s and the end of the first decade of the 21st century (Editorial Board, 2013). Beginning with a prison population of 174,000 in 1972 it grew to over 1.4 million by 2010, representing over a 700% increase (PSPP, 2010). By comparison, the growth of the U.S. population was a modest 32% during the same period (Multpl.com, 2013). In other words, the American prison population grew at a rate 21-times faster than the population in general. By the beginning of the 21st century, American prisons housed 25% of the world's prisoners even though the country was home to only 5% of the global population (ACLU, 2011).
Tough sentencing laws passed by state legislatures have been blamed for the unprecedented increase (ACLU, 2011). These 'tough on crime' policies have prompted critics to frame the effects of such policies as "… overcriminalization, increasingly draconian sentencing and parole regimes, mass incarceration of impoverished communities of color, and rapid prison building." (p. 5). From a constitutional and moral perspective, the racial disparities are one of the more troubling aspects of the prison expansion, with African-Americans being six times more likely to be incarcerated than their White counterparts. African-Americans are also 2.6-times more likely to be arrested and 4-times more likely to be incarcerated for drug crimes. Overcrowding is also common and a three judge panel in a California District Court ordered the state to reduce the prison population (Prison Law Office, 2013). When California appealed the decision to the U.S. Supreme Court the order was upheld under the 'cruel and unusual punishment' clause in the Eighth Amendment.
The cost of housing, feeding, and providing medical care for all these prisoners has represented a significant percentage of state spending (Kyckelhahn, 2012). In 1982, spending by states on corrections was about $15 billion, but by 2010 it had increased to almost $50 billion. About 80% of state correctional expenditures are typically allocated to building, maintaining, and staffing prisons. Total state revenues for fiscal 2010 was close to $720 billion (RIG, 2013), which suggests that states spent close to 7% of revenues on corrections. As long as state coffers were brimming, the tough on crime statutes were tolerated; however, when states began to run budget deficits during the most recent economic downturn lawmakers began to take a hard look at corrections policies and expenditures (ACLU, 2011).
One of the most conservative, tough-on-crime states in the nation has also been one of the most successful in reversing the trend. Recent prison reform legislation by Texas lawmakers has caught the attention of prison policymakers and critics on a national level because of its successes (e.g., Viguerie, 2013). To better understand which prison reform policies are effective, without producing a corresponding increase in crime, the reform efforts in Texas will be examined in greater detail.
The Whitmire/Madden Correctional Treatment and Diversion Plan
In 2001, Law enforcement in the town of Tulia, Texas arrested dozens of African-Americans for possession of small amounts of cocaine and sentenced them to between 20 and 90 years in prison (ACLU, 2011). The public outcry and litigation that followed energized Texas lawmakers to pass HB 2351, SB1074, and SB7 in 2001, which required corroboration of informant testimony, prohibited racial profiling by law enforcement officers, and better defined the legal defense requirements for indigent defendants, respectively.
The burgeoning correctional costs of the Texas prison system were already worrying lawmakers when the Tulia incident happened and a coalition of liberal and conservative state lawmakers sought advice from the ACLU of Texas and the Justice Policy Institute (ACLU, 2011). This coalition was able to pass HB 2668 in 2003, which mandated probation for first-time, low-level drug possession. The coalition continued to work over the next two years and HB2193, a comprehensive prison reform bill that would reduce probation time, expand the number of county drug courts, and give more credits to time served for probationers and parolees, was overwhelmingly supported by 85% of Texas lawmakers; however, Governor Perry vetoed the bill as a way to support law enforcement.
When Texas lawmakers convened in 2007 they were confronted by the Texas Department of Criminal Justice requesting enough funds to add 17,000 prison beds over the next five years (PSPP, 2007). In addition, 4,000 of the new beds would have to be housed in new prison facilities (PSPP, 2007). At the time there were already 223,230 persons incarcerated in the state's jails and prisons (ACLU, 2011). The cost of providing correctional services in Texas in 2007 was close to $3.0 billion, with $2.3 billion allocated to inmate facilities. Governor Perry could no longer ignore correctional costs in the face of an impending budget shortfall (McNichol and Lav, 2007).
Governor Perry joined a growing bipartisan coalition of lawmakers and non-governmental organizations, including the ACLU of Texas, Texas Criminal Justice Coalition, and Texas Public Policy Foundation, in an effort to come up with a solution (ACLU, 2011). Several bills were packaged together in what would be called the Whitmire/Madden Correctional Treatment and Diversion Plan.
1. SB 909 created a committee to oversee the implementation and success of the reform package and mandated annual reassessments for parole eligibility.
2. HB 530 expanded the drug court system across Texas, provided more funds, and widened the criminal scope of specialty courts.
3. A portion of the money the Department of Criminal Justice requested for new prisons was instead used to create rehabilitation services for convicts and prison diversion programs. HB 1 provided $241 million to create residential and out-patient beds for drug offenders on probation, new beds for parolees, new beds in non-prison residential facilities for parolees and probationers who committed low-level technical violations, and expanded drug treatment programs inside prisons.
4. HB 1678 cut in half probation times for drug and felony property offenses, required judges to review probation terms after two years or cut the probation term in half, and gave credit to probationers who completed drug treatment.
5. SB 166 incentivized the use of graduated and non-prison sanctions for probationers.
6. HB 1610 gave judges wider discretion for using probation for low-level drug offenders and established probation as the maximum penalty for some felonies.
7. HB 431 established a medical parole program to facilitate the transfer of mentally or terminally ill prisoners to medical facilities.
Governor Perry signed the Whitmore/Madden Correctional Treatment and Diversion Program bills into law and Texas was able to avoid building more prisons (ACLU, 2011). The support for the prison diversion program persisted and with the help of the Texas Criminal Justice Coalition passed more prison reform bills in 2009. HB 93 suspended earned credits rather forfeiting them if a prisoner violated a prison rule. HB 1 took the $45.7 million dollars saved by closing three juvenile prisons and invested it into juvenile probation programs. The latter bill received unanimous support by the Texas legislature.
Hard to Ignore Successes
HB 2668 (2003) was estimated to have saved Texas taxpayers $51 million during the first two years alone (ACLU, 2011). Sentencing convicted offenders to prison terms fell by 6% in 2009 due to the increased emphasis on drug courts and probation. Instead of building new prisons, the Texas Department of Criminal Justice was able to close one prison in 2011, thereby saving another $50 million. This decision was based on the fact that the growth in the prison population all but stopped and instead of needing more beds, the prison system reported an excess of 2,000 beds in 2011. The main contributor to this turnaround was the bills that ended the practice of automatic prison terms for probation and parole violations. All together, the Whitmore/Madden Correctional Treatment and Diversion Program was estimated to have saved Texas taxpayers close to $210 million during the first year.
The success of the prison reforms also depended on what happened to crime rates after the reforms were implemented. Violent crimes and felony thefts declined by a whopping 13% between 2003 and 2009. Even if the recently enacted prison reforms were not directly responsible for these reductions, it seems safe to assume that the reforms did not lead to an increase in crime. As of 2011 the crime rates across Texas were at their lowest point since 1973. The success was so convincing that additional prison and correctional reforms were passed by the Texas legislature in 2011. Current estimates suggest the prison population is down by 6,000 inmates since 2011, resulting in close to 12,000 empty prison beds statewide (Grissom, 2013). As a result, Texas lawmakers decided to close two more privately-run inmate facilities with a combined capacity of 4,300 beds, enabling them to cut the corrections budget by almost $100 million.
The warehousing of low-level drug offenders in Texas prisons was threatening to bust the state's budget, so lawmakers decided to take action. A series of corrections reform bills were passed over the past decade that halted the growth in corrections costs and led…