by David Jones
The Texas Legislature is once again faced with a criminal justice system
in crisis with 150,000 prison beds rapidly approaching capacity — and Harris County continues to provide a disproportionate
share. Fortunately, Houston Sen. John Whitmire, chairman of the Criminal Justice Committee, knows that the crisis is directly
related to overly punitive probation policies causing the incarceration of thousands of nonviolent criminals for minor infractions.
He should also realize that these practices in Harris County are a symptom
of a much deeper systematic problem — the district judges, who have legal authority over the management of the department,
have designed it for failure.
Giving more money to Harris County for probation programs and services
to divert people from prison will be throwing good money after bad if the district judges remain in control.
For the last decade or more state criminal justice leaders have identified
Harris County as a voracious consumer of state prison beds. And they have noticed that the greatest numbers of our commitments
have been probationers who fail during the term of their supervision, yet rarely from committing a new crime.
It is the confluence of a fundamentally flawed adversarial justice system,
punitive probation policies and the lack of administrative expertise in the judiciary that makes the system run by the Harris
County Community Supervision and Corrections Department more about retribution than rehabilitation. And it is within this
ideology of failure where the state can find answers to why our county sends more of its citizens to prison than is rational,
fair or efficient.
Probation compliance in Harris County requires more effort than most
law-abiding citizens can perform, much less the typical first offender who often is young, unemployed, undereducated, with
unreliable transportation and limited family support, if any. These are the offenders who find themselves in prison as casualties
of a probation system that demands frequent reporting, attendance at programs, community service, stable employment and steep
monthly fees.
Judges not only order conditions of supervision but also impose additional
rules that probation personnel monitor. Different courts place different demands on their probationers. One felony court will
not allow probationers to leave Harris County, another requires four hours per week of community service — not 8 hours
every other week, but 4 hours per week.
Some courts will not allow probationers to reschedule office visits even
if it means losing a job. One court penalizes probationers for being more than 15 minutes late for an appointment, a standard
not applied to lawyers. Non-compliance with these policies might result in a motion to revoke probation for technical violations
and a jail or prison term whether or not the probationer poses a threat to the community.
The financial cost for a person on probation in Harris County is also
high. Monthly supervision fees in Harris County average $50 to $60 per month. This monthly fee is in addition to court costs, fines, fees for court appointed attorneys, evaluation, education and
treatment fees, and any restitution payments. A typical probation fee schedule is easily more than $100 per month, and that
is before the probation department tacks on its $2 transaction fee for making payments.
According to a Senate Criminal Justice Committee Interim Report, 49 percent
of Harris County probationers had their probation revoked in 2003, the majority for technical violations rather than new offenses.
Often these probationers endure years of probation supervision before being revoked and sent to prison.
Whitmire's interim report also examines the management of probation,
stating that Texas is only one of five states where judges are not only users of the system, but its managers.
The judges hire the department director. In 2003, during a nationwide
search for a new director, they contracted with the Justice Management Institute to study the probation department. The JMI
report stated: "The greatest strength of the HCCSCD is clearly the depth, dedication and experience of its staff."
Yet the judges hired a director from out of state who brought with him
a reputation as a "slash and burn" administrator.
Since his arrival, there has been a mass exodus of dedicated and experienced
officers. Observers report that more than 150 employees left in 2004. Many of these officers were not replaced, resulting
in caseloads rising from 125 probationers per officer to more than 160. Now, more than 25 percent of the probationers in Harris
County are being supervised by an officer with less than a year of experience. This instability is detrimental to the success
of the probationers under supervision, and has serious implications for public safety.
Perhaps the most disturbing feature of judicial management of probation
caseloads is the corruption of the adversarial system. A judge who believes a probationer has violated a condition or rule
must have the matter tested in court, after arrest and incarceration of the subject. The resulting process requires a district
attorney to prove the violation and a defense lawyer to challenge. The primary witness against the probationer is an agent
of the probation department. The breakdown in what is supposed to be a fair and objective proceeding occurs when the DA uses
the compliance failures compiled by the judge's probation officer against the probationer.
In most revocation hearings defense counsel are appointed and paid by
the same judge who has put their client at risk of being sent to prison if proven to have failed the judges' extreme standards
for compliance. It takes a vigorous and unselfish lawyer, one willing to risk losing the favor of the judge, to oppose this
tsunami of forces allied against a probationer, who often innocently assumes the probation contract with the court is intended
to help them.
Whitmire and the Legislature face an enormous challenge. State resources
are limited, and over the years Harris County has been notorious in its appetite for incarceration.
Hopefully, these resources will not be wasted on a system designed to
fail. Removing the judges from probation management and replacing them with criminal justice professionals is the first step
toward repairing a broken system.
Jones is an attorney in Houston practicing criminal law. He is a
former assistant attorney general and assistant Harris County district attorney. His sister, Janis Bane, is a former high-ranking
probation department official.
