By Mike Ward
For weeks, a parade of witnesses has preached and prodded for change.
Change the behavior of Texas criminals; don't just punish them. Change the way probation officers do their jobs. Change the
way the public looks at probation.
Legislation being debated at the Capitol reflects a shift in thinking
among Senate and House leaders away from the state's tradition of tough sentencing, at least when it comes to nonviolent offenders.
That shift is spurred in part by the specter of $1 billion in prison construction costs in the next five years to make room
for new inmates.
While it costs about $40 a day to house a convict in prison, it costs just $2 a day for probation.
The legislative plans would funnel certain lawbreakers away from prison and into community supervision programs, which supporters
say can be much better at rehabilitating drug, nonviolent and property-crime offenders.
But now, some judges and prosecutors, even probation officials, have
begun quietly lobbying lawmakers against the changes, threatening bills that appeared to be on the fast track to approval
in the Senate and House.
Some judges point out that they already have the authority under current
laws to do most of the things that are being proposed — even though most do not.
Some prosecutors argue that the changes could mean less money for probation
at a time when lawmakers hope to put many more probationers under supervision. They also are concerned that the proposed changes
could further crowd prisons — a situation the reforms are intended to alleviate — resulting in even more people
going to prison and an overcrowding crisis exploding sooner than anticipated.
Opponents say not enough research has been done in Texas on the effects
of more use of probation, early release and behavior modification. Some judges and prosecutors claim their practical experience
has shown positive results in favoring rehabilitation programs and close supervision over long jail terms.
"We are creating a second system of early release," said Williamson County
District Attorney John Bradley, who was an architect of a top-to-bottom rewrite of Texas' criminal laws more than a decade
ago.
Twenty years ago the parole board became the state's early release safety
valve as prisons grew overcrowded.
That ended in a crime spree by parolees that spurred lawmakers to triple
the size of the prison system.
"We are preparing to repeat history, except the mechanism this time will
be probation rather than parole," said Bradley, who presides in a county with a tough law-and-order reputation.
At the same time, supporters of the reforms, such as state District Judge
John C. Creuzot of Dallas, are just as insistent that the effort to make judges think about alternatives to prison is well-reasoned
and long overdue.
"Part of this is that we're trying to change the behavior of someone
on probation . . . so they succeed, so we don't throw them away to a state prison," said Creuzot, who has been on the bench
14 years, the last seven overseeing an acclaimed drug court. "Lawyers and judges decide what to do today based on what they
have done in the past. . . . We're trying to change the mindset of everyone in the system, and I think (the bills) do that."
The main goal of the legislation is to reduce the number of people sent
or returned to prison and allow them to remain in community supervision programs that supporters say are much better at rehabilitating
drug addicts, non-violent and property-crime offenders, if run correctly. Keeping people out of prison saves money; expanding
probation and supervision costs money.
As approved Thursday by the Senate Criminal Justice Committee, SB 1266
would limit probation to five years in most cases, down from 10 in current law, while giving judges the discretion to extend
it for up to five years more if needed.
Misdemeanor probation would be limited to two years, with an option to
extend it to five, the same as current law.
Violent-crime offenders still would get 10 years probation after serving
their sentence.
Judges would review offenders who had served one-third of their probation,
or two years, whichever was less, to see if they had done well enough to qualify for early termination of their sentence.
Community service work would be limited to 40 hours per year per offender.
Local community justice councils — consisting of representatives
from various criminal justice agencies, prosecutors, the judiciary and community agencies — would get additional power
over what conditions of probation judges could impose, from programs to treatment plans.
A similar bill is pending in the House Corrections Committee, which is
expected to pass it on for a vote by the full House.
But because of opposition from prosecutors, judges, sheriffs, probation
officials and others, key provisions have been quietly dropped in recent days.
One would have allowed offenders serving time in a state jail to leave
early if they enter a halfway house.
Others would have abolished deferred adjudication, established new ways
that offenders could earn time credits to shorten their sentence, and made assignment of community service hours mandatory.
Like other supporters of the reforms, Ann del Llano of the American Civil
Liberties Union says the bills are a step forward — for offenders who could access community-based rehabilitation programs,
rather than being sent to a prison with no programs, and for taxpayers who could spend less for better results.
"It will make the probation system more effective," she said. "These
discussions are healthy. And the most important policy guidance needs to reflect back on what reduces criminality. That's
everyone's goal."
Like other judges who have championed the proposed changes, Creuzot said
the current system "is ripe for getting the wrong outcomes." He said that if judges and probation departments are more empowered
and involved in supervising offenders, fewer people will end up in prison and more will successfully complete their probation
and become law-abiding citizens.
"Experience has shown this can happen," said Creuzot, who uses that approach
in his drug court. It also is the model in Fort Bend County's special sanctions court.
These approaches require expanded community-based treatment and rehabilitation
programs, and more money — $57 million in one bill, more in another.
Use of these expanded programs in El Paso has so far reduced recidivism
and the rate at which misbehaving probationers are sent to a prison.
"There is a new mindset not only among judges, but among prosecutors
about the importance of community-based sanctions," state District Judge Mary Anne Bramblett of El Paso, a proponent of the
reforms, testified at a recent hearing.
While Bradley and others agree that more judicial involvement would be
a positive step, they insist the pending reforms are based on too few solid statistics and too many anecdotes.
"We should stop guessing," he said, lamenting the demise two years ago
of the state agency that tracked the needed statistics, the Criminal Justice Policy Council.
Fifteen years ago, when lawmakers were struggling with prison crowding,
"there was the belief that prosecutors were filling prisons with sock thieves," Bradley said. "Once some solid research was
done, and the numbers were studied, it showed that was not true."
In the current debate over probation reforms, he added, "that research
has not been done. What is happening now is legislation by anecdote."
As for the hope that probation reforms will slow the flow of convicts
into state prisons, Bradley said the opposite probably will occur.
As an example he said that under current law, an 18-year-old burglar
could be sentenced to up to 10 years probation, enough time to ensure that the teenager won't go back to a life of crime.
Under the proposed reforms, the length of probation would be limited
to five years.
Bradley said that while judges and prosecutors are willing to try probation
in difficult cases because of laws permitting extended supervision for at-risk offenders, mandated shorter probation could
end that practice.
"I can tell you, I won't (assign mandated shorter probation) in cases
where I'll consider probation now," Bradley said. "I'll recommend more sentences to prison."
Probation officials also are worried that probation department budgets
will suffer if the sentences of more probationers are terminated early for good behavior.
After all, they say, it's the successful probationers that pay their
fees month after month.
Judges worry that their workloads will increase, as they have to review
more and more probation cases and ride closer herd on those offenders whom they place on probation.
Despite the criticisms, Senate Criminal Justice Committee Chairman John
Whitmire, D-Houston, who is author of the Senate reform bill, insists the reforms are needed — and that they will work.
"One of the purposes of this is to make judges be in charge of the probation
system," he said. "The system has to change."
House Committee Chairman Jerry Madden, R-Richardson, said that despite
the questions, which have resulted in last-minute changes to the reform plan over the past week, he expects it will pass soon.
"These are positive changes that need to be made," he said.
Like other lawmakers who support the plan, Sen. Kel Seliger, R-Amarillo,
said the lingering questions dim in comparison to the alternative: building more prisons.
"My hope is these changes will make the probation system more effective,"
Seliger said. "Public safety is everyone's first concern. . . . but when you consider that 10,000 people were revoked from
probation (to prison) last year, you see the importance of this. We can't afford to keep building prisons like we did."
Bradley is among those who remain unconvinced.
"We are doing this without a definitive study on probation," he said.
"There is no probation crisis. There is just a fiscal concern about the impending (prison) space crisis."
What will 'new probation' in Texas look like?
El Paso County offers a variety of sanctions and treatment programs for
probationers that have been successful in reducing revocations and rehabilitating offenders. Legislative leaders say Texas'
westernmost county is a model for statewide reforms.
Community corrections facilities: Residents, with varying
degrees of confinement, receive counseling.
Treatment programs: A broad variety of programs including
counseling, treatment and rigorous monitoring for substance abusers and sexual offenders, and rehabilitation and care for
mental illness and mental retardation.
Specialized caseloads: Programs and aftercare for primarily
heroin-addicted offenders, gang members, and other high-risk offenders.
Other programs: Basic education and English classes,
parenting skills, anger management, electronic monitoring, programs for first-time offenders and supervision for low-risk
defendants.
Sources: El Paso County Community Supervision and Corrections Department
and Texas Department of Criminal Justice, Community Justice Assistance Division.
Felony probation in Texas
Crime Convicts
on probation Percent of total probations
Homicide
774
0.6
Kidnapping
214
0.2
Sexual assault 3,502
2.7
Robbery
3,344
2.6
Assault
16,303
12.5
Burglary
10,004
7.7
Larceny
11,756
9
Vehicle theft 1,562
1.2
Forgery
5,187
4
Other property crimes 6,479
5
Illegal drugs 40,849
31.3
Sex offenses 3,437
2.6
DWI/DUI
15,313
11.7
Other offenses 11,713
9
Total on felony probation — 130,437
