Time to Change the Direction of Criminal Justice in Texas
By Lawrence T. Jablecki, Ph. D.

Director Brazoria County Community Supervision and Corrections Department

Immediately after the opening bang of the gavel of the next legislative session its members should demonstrate moral and political courage in the form of new and unambiguous marching orders to the Texas Department of Criminal Justice.   Specifically, “ the prison building boom of the 1990’s is finished and we have accomplished our objective.  The previously revolving doors of our prisons have been slammed shut.  Violent and habitual offenders are now incarcerated for a major portion of their sentence.  We have more than adequate cells to confine the people we fear.  In our race to incarcerate, however, we have wasted millions of tax dollars on cells for multitudes of non-violent and self-destructive individuals who we are simply mad at their conduct.  The rate at which we are incarcerating our citizens has become insidious and must be halted.  Effective this date therefore, and for the foreseeable future, not a dollar will be appropriated for new or enlarged prison units.  Instead, we are going to redirect a significant portion of our available funds to education, health and human services in order to prevent a large number of our citizens, juveniles and adults from beginning a life of crime.  Finally, we are going to substantially increase the funding for two divisions of our department of criminal justice with the expectation of a major reduction in the number of probationers sent to prison and the number of parolees returned to prison.”

Knowing that some readers have already identified this writer as a soft on crime “liberal weenie” who does not believe in the hard coinage of punishment for criminals, I offer the following: I am a career criminal justice practitioner in Texas with more than twenty-one years of direct contact with thousands of persons placed on adult probation.  I am also on the adjunct faculty of the University of Houston at Clear Lake and since 1988 I have taught university courses to hundreds of prison inmates.  The philosophical guts of my views on crime and punishment, therefore, are born of actual experience with the entire range of criminal offenders.  I deliver the same message to probationers and prison inmates.  “You are in a deliberate conflict with the rules of society; you do not have a psychological disorder or disease that both explains and excuses your conduct.  You made a deliberate decision to commit a crime; you were free to do otherwise and should be held legally accountable.  Those of you who have committed acts of violence against other persons or are career criminals deserve to be incarcerated for many years, some to life without the possibility of parole.  A few evil and violent persons deserve to die, but I am opposed to capital punishment because innocent persons are convicted and executed.”  

Now that I have disarmed the retributive missiles of the “compassionate conservatives,” the justification for urging lawmakers to demand some radical changes in the state’s expenditures and abolishing the harsh punitive character of our system of criminal justice is located in two events of August.     

First, the Board of the Texas Department of Criminal Justice approved a 2001-02 budget for the next legislative session requesting  $544 million for 8,550 new prison beds and a major increase in prison funding for the next two fiscal years.  Funding for community corrections (adult probation) is decreased and money for parole remains at the current level.  As a witness to the 1989 legislative birth of the Texas Department of the Criminal Justice, this proposed budget is a blatant betrayal of the stated intentions and promises of its creators.        

This writer and many others testified against the consolidation of prisons, probation and parole into the new leviathan.  Our fear was that this gigantic organization was designed to concentrate all real authority in a nine-member board the majority of which would persist in making decisions grounded in the belief that the building of more and larger prisons is the most effective way to reduce crime.

Our fear was justified!            

During the last ten years, despite the documented growth of its offender population and its long list of unfunded and under funded legislative mandates, the community corrections component of the system receives less than 10% of the annual budget of the Texas Department of Criminal Justice.  The sad truth is that the Directors of the state’s 122 Community Supervision and Corrections Departments, responsible for the supervision of the largest number of adult probationers in the nation (430,000) are excluded from any real participation in the legislative initiatives and budget proposals of the Texas Department of Criminal Justice.  We have been reduced to the significance of a flea on the rear end of a bull elephant.      

The second event that unequivocally justifies the urgent need for a legislative shaking and redirection of criminal justice in our state came in a report from the Justice Policy Institute, a criminal justice think tank in Washington, D.C.   The title of this document is Texas Tough?: An Analysis of Incarceration and Crime Trends in the Lone Star State.  Some of the facts contained in this report are a damning indictment of a “… system fixated on punishment and devoid of compassion.”  Indeed, every thoughtful citizen should be deeply ashamed of some of the accomplishments of our system during the last decade.          

The desire to reduce the amount of crime in our state and the right of every citizen to live free from fear of becoming a victim of crime are embraced by this writer as fervently as anyone.  In our zeal to accomplish these goals, however, we now have more prison inmates than any state in the country.  As of August, 2000, we have 163,190 prison inmates.  California, with 10 million more citizens, has 163,067.  We have incarcerated 1,035 persons for every 100,000 of our citizens, second only to Louisiana.  “If Texas was a nation separate, from the United States, it would have the world’s highest incarceration rate …”  If the entire country incarcerated persons at the same rate as Texas, close to 3 million people would be behind bars instead of the present 2 million.  Some argue that this report has miscalculated the actual reduction of the crime rate in Texas in the last ten years.  Even if correct, given the massive size of our prison population, we should have the lowest crime rate in the civilized world and we do not! 

The weakest section of the report deals with the alleged characteristics of our prison inmates and the reasons why many of them are incarcerated.  The inherently controversial claim is made that the majority of prison inmates in Texas are serving time for a non-violent crime.  Using the classification system and numbers provided by the Texas Department of Criminal Justice and the 1999 U. S. Bureau of Justice prison counts, we are told that 89,428 of the current inmates are incarcerated for a non-violent crime.

Presumably, the data from Texas was defined by its Code of Criminal Procedure in which crimes of violence are identified as capital murder, murder, indecency with a child by contact, aggravated kidnapping, aggravated sexual assault, aggravated robbery and sexual assault.  Many would argue that the definition of violent should be expanded to include many other criminal offenses, for example stealing a car, the sale of cocaine or heroin and burglary of a habitation.  This would certainly reduce the number of so-called non-violent inmates.  This would still leave, however, many who are truly non-violent petty thieves and con artists who are a public nuisance.  And there are thousands whose only crime was the purchase and use of illegal drugs.  As stated earlier, we are mad at and disapprove of the lifestyle of these folks, but the public safety would not be diminished if they received some mild punitive sanctions and assistance outside the prison walls.

The most misleading and wrong claim in the report is that in 1998, approximately 18,500 probationers and parolees were sent to and returned to prison for non-criminal violations such as failing to report to their probation or parole officer.  Judges do not send probationers to prison for failing to report to their probation officer unless they have failed to do so on many occasions.  Numerous probationers have committed serious felony crimes and the refusal to report justifies the decision to send them to prison.  An examination of the majority of case files would reveal the deliberate refusal to comply with other conditions such as paying restitution to victims and attending counseling sessions.  If sex offenders refuse to attend counseling they should be and are sent to prison.

The case files would also verify that in numerous instances, new criminal charges are dismissed in exchange for a reduced sentence and a plea of guilty to the non-criminal violations.  These facts never reach the prison information system and numerous new inmates from the probation system are officially received for non–criminal violations.

I am a father whose skin is white and have an adopted daughter whose skin is black.  I am, therefore, profoundly disturbed by the wider social implications of the section in this report documenting the consequences of the states’ criminal justice system on the African American population.  29% (1 of 3) of the black male population of the state, aged 21- 29, are in prison or jail, or on probation or parole.  “Blacks in Texas are incarcerated at a rate seven times greater than whites.  While there are 555 whites behind bars for every 100,000 in the Texas population there are an astonishing 3862 African Americans behind bars for every 100,000.”  African Americans account for 12% of the Texas population, but they comprise 44% of the prison and jail population.  Probation compared to incarceration is a mild form of punishment.  Approximately 21% of the states’ adult probationers are African American and approximately 45% are white.

Texas has a very successful Substance Abuse and Felony Prevention Program (SAFP).  This is a 9-12 month drug treatment program to which the courts can send probationers in lieu of incarceration.  African Americans account for close to 27% of the participants and 43% are white.  More African Americans in Texas are under the control of our criminal justice system than are enrolled in our colleges and universities.

What do these glaring racial disparities tell us about the people who administer criminal justice in Texas and the African American population?  The administrators of our prisons have no part in the decisions regarding who is sent to them or for how long.   Collectively considered, I do not believe that our law-enforcement agencies, prosecutors, judges, probation or parole officials are racists attempting to destroy the African American community in the form of incarceration.   I have no doubt, however, of the existence of some racists in all of these categories and when identified, they should be publicly banished from their profession.

The Texas war on drugs accounts for the presence of thousands of African American males, aged 21-29, being placed in prison or jail, or on probation or parole.  The percentage of them who commit violent and serious crimes and use drugs is no greater than whites of the same age group.  The socio-economic environments they inhabit make it relatively easy to detect, arrest, prosecute and incarcerate.  They are easy targets compared to the white population in more affluent environments who possess monetary resources to pay for expensive drug treatment.  The color of a person’s skin and the size of their wallet should have no influence in the administration of criminal justice.            

The abuse of drugs in our society is like a fast-growing and rare form of cancer that will disfigure or destroy the body it inhabits unless it receives some creative and aggressive treatment.  Our current war against drug abuse has destroyed countless lives because the battle plan has been under the exclusive control of law-enforcement and criminal justice.  The Lone Star State should seize the opportunity to show the rest of the nation what a rational and humane drug policy would look like.  The Governor and both Houses of the Legislature can appoint a non-partisan Blue Ribbon Commission of recognized experts in medicine, pharmacology, public heath and criminology.  Its mission is to recommend a new set of drug laws to increase public safety and our public’s health.

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