Twenty-five years ago, Texas lawmakers created a new state jail system designed to keep low-level drug offenders out of overcrowded prisons.
Unlike in state prisons, inmates convicted of nonviolent drug offenses would spend less time in jail and more time getting rehabilitative services while on probation, a period of time where an offender is released from detention and is supervised to ensure good behavior.
But advocates and lawmakers say the system has failed. Attitudes about criminal justice shifted soon after the system was put in place. The state began using the jails as way stations for inmates convicted of more serious crimes on their way to state prisons. Few rehabilitative services were made available in state jails, and the low-level offenders who went to the facilities have been rearrested at a higher rate than the general prison population.
Now, a quarter-century later, lawmakers are hoping this year will be an opportunity for reform.
In the run-up to the 2019 legislative session, the leaders of both the House and the Senate asked committees to study the state jail system, which holds around 21,500 inmates in 17 jails, according to the House Committee on Corrections. That led to a report from the House Committee on Criminal Jurisprudence that referred to the system as a “complete failure,” and lawmakers in both chambers listed bolstering local pretrial and probation initiatives as a top priority.
In its 2020-21 funding request, the Texas Department of Criminal Justice asked for $8 million in addition to its base budget to expand pretrial services offered in counties across the state. Pretrial programs divert defendants from traditional criminal justice processing and provide rehabilitative substance abuse and mental health treatment to offenders. Advocates say such rehabilitative treatment is missing from state jails today and is largely to blame for the problems in the system.
State jails are designed for people who commit state jail felonies, a category created by lawmakers in 1993. Crimes that fit that classification largely cover low-level drug and property crimes and are punishable by a minimum of six months and a maximum of two years in jail and up to a $10,000 fine. Today, there are over 170 criminal offenses classified as state jail felonies.
Originally, many state jail felony offenses required inmates to go on probation. The thinking was that defendants would have access to rehabilitative services as an alternative to incarceration, addressing issues that are often a result of these nonviolent offenses, such as drug addiction and mental health problems. Then, if they violated probation, they’d go to jail.
“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.
But before the first state jail facility was even built two years later, unexpected factors began to derail the system’s success.
In 1994, former President Bill Clinton passed the Violent Crime Control and Law Enforcement Act, which created heavier penalties for many criminal offenses. This “tough-on-crime” mentality of the 1990s carried down to the state and local levels.
In the late ’90s, state lawmakers removed the mandatory probation requirement for many state jail felony offenses, a provision that required individuals convicted of certain state jail felonies to accept community supervision.
“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 the with the tough-on-crime thing,” said Rep. James White, R-Hillister, who chairs the House Committee on Corrections.
The result has been far from what lawmakers imagined 25 years ago: For offenders released from state jail in 2015, the rearrest rate was 63 percent, compared to 45 percent for all offenders released from prison, according to the Legislative Budget Board.
Experts say this is largely a result of the lack of community supervision offered after release. In fiscal year 2016, less than half of 1 percent of the total state jail population was released on probation, according to the House Committee on Corrections’ interim report.
And advocates say the more than nine months inmates spend on average in state jail, according to the House Committee on Corrections, isn’t enough. It’s a long enough time to lose jobs, housing and family ties — factors that make re-entry into society more difficult — but too short to get effective treatment or even complete the limited vocational and substance abuse training offered in state jails.
As a result, the system has become a revolving door.
The reality is further complicated by what is known as a 12.44, a provision in the Texas penal code that allows a court to sentence an individual convicted of a state jail felony to confinement shorter than the 180-day minimum — or even drop the charge to a misdemeanor.
Unlike in state prisons, individuals convicted of state jail felonies serve their time day-for-day and are not eligible for “good time credit” or parole. The 12.44 becomes an appealing option for many defendants because by the time they accept a 12.44 deal, they have already spent a good amount of time held pretrial in county jail, which counts as time served toward their sentence.
“If a person is willing to plead guilty and take a final conviction and get a short sentence as part of a plea bargain, all the parties are going to agree to that 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,” said Shannon Edmonds, a prosecutor’s legislative liaison through the Texas District and County Attorneys Association.
Edmonds said the state jail problem is a “hard nut to crack” because many offenders, by nature of their substance abuse issues, don’t want to get off drugs and get treatment.
But Doug Smith, senior policy analyst for the Texas Criminal Justice Coalition, said the reality can be a little more complicated than that.
For someone convicted of a state jail felony, community supervision can last up to five years. Smith said there are barriers to probation — court costs, child care, drug screens, keeping a job and attending required classes — that make serving a shorter sentence easier, especially for poor defendants.
“Yes, by all means, let’s divert people into community supervision. But community supervision needs to look different than what it does now,” said Smith, who was incarcerated for five and a half years for crimes related to his drug addiction. “It needs to be quicker access to the services; it needs to have less conditions, a shorter period of time on supervision, and more focused on rehabilitative aspects. Not the ludicrous focus of, ‘We're just going to make sure that you haven’t taken drugs, and we're going to drug screen you every month.’”
In their interim reports, lawmakers pointed to a number of possible solutions to the state jail problem, including abolishing the 12.44 provision, passing broader nondisclosure laws that seal criminal records for “deserving” individuals, and adjusting probation processes and requirements.
But during the interim, lawmakers consistently turned to local programs to serve as models for the rest of the state.
Harris County implemented one such program in October 2016 by consolidating its low-level drug convictions into one court docket.
The court diverts first-time offenders from traditional criminal justice processing and into rehabilitative services. Repeat offenders are given the opportunity to serve their sentences through deferred adjudication, a type of probation that allows a conviction to be dropped if the individual completes the program.
In just over two years, the county has seen a 91-percent completion rate, with 85 percent of cases diverted to community supervision, said Teresa May, director of the Harris County Community Supervision and Corrections Department.
White, who chairs the House Committee on Corrections, said scaling back use of the 12.44 option and making it easier to seal criminal records are steps that could potentially improve the state jail problem. But he said the most important piece in the puzzle is incentivizing local communities to create programs similar to the docket in Harris County.
This week, White filed a bill that would create a grant program for local communities that provide re-entry and reintegration services, such as educational and vocational training, to individuals released from state jails. The grant program would give priority to counties in which the number of state jail felony arrests exceeds the statewide average and counties that establish their own pretrial intervention programs.
“We need to put out our local communities in a posture where they're collaborating and they're coming up with innovative approaches that fit their community,” White said.