Using Harris Jails Less and Seeing Public Safety Improve More

In Texas, everything is big—but that’s not always something to boast about. For example, the Harris County Jail, which houses about 9,000 inmates daily, is the third-largest jail system in the nation.

Prisons and jails are different. Prisons are state-level facilities for felony offenders who have been convicted. Jails are county-level facilities that hold sentenced misdemeanor offenders, and also—importantly—people who are awaiting trial after an arrest (or some other disposition of their case). This second group of individuals generally consists of those who have not been convicted of a crime.

Indeed jails house many people who may never be convicted of a crime. They also house many people who will be convicted, but who will ultimately receive probation or some other form of community supervision, such as mandatory drug court because it is determined that the underlying crime does not require incapacitation.

In Harris County, there are about 6,000 offenders of this sort, and an average Harris County inmate spends nearly one month in jail.

The cost of housing each one of these jail inmates for one day is $59.00. Thus, each day, around half a million dollars is being spent to jail such individuals in Harris County.

The pretrial incarceration of those who do not pose a high risk of committing a serious crime is counterproductive for public safety. A person who spends nearly a month in jail is likely to be out of a job upon release—and unemployment is a major risk factor for re-offending (or offending for the first time, if the individual was not guilty in the first place).

Harris County, therefore, needs to find a way to use jails less.

Fundamentally, this is a matter of distinguishing between those individuals who pose a high risk of committing a serious crime if released prior to trial from those who pose a low risk.

In the past, drawing such distinctions was difficult because counties had no actual method other than the “gut feeling” of law enforcement authorities.

Increasingly, however, that is changing.

Some states, like Kentucky, are developing pretrial risk assessment instruments that can be used to make sound determinations about who needs to be in jail and who does not.

The Kentucky instrument, which was implemented in July of 2013, has shown promising results. Fewer Kentuckians are in jail, taxpayers have saved $30-$40 million, and crime rates—which had been falling for years—are continuing their decline. All counties in Texas—including Harris—should be studying Kentucky’s success closely.

Another way to reduce the jail population and produce better public safety results is to identify those individuals who are mentally ill and to place them in treatment settings rather than behind bars.

Harris County’s jail is the biggest mental health facility in the state. It treats more psychiatric patients than all the public mental health hospitals in Texas put together.

A jail, however, is not suited to provide such care. Most people in law enforcement realize this, and would welcome the legal authority to take an offender straight to a hospital or crisis center rather than to a jail for booking and confinement.

On this score, Harris County is enviably ahead of most counties in Texas. In 2013, the legislature, under the leadership of Senators Joan Huffman and John Whitmire, authorized a jail diversion program in Harris County that—along with the highly successful 24-hour crisis center and case management system in Bexar County—could become a model for other jurisdictions.

Additionally, mental health courts are a proven model for holding these offenders accountable for complying with their treatment and probation conditions. Creating an additional mental health court in Harris County would expand on the success of this collaborative, problem-solving model.

Finally, it is sensible to use more citations, rather than arrests, when dealing with certain law-breakers. Ignoring citations would result in an arrest warrant, just like ignoring traffic tickets. The Texas Legislature actually authorized this procedure for certain misdemeanors in 2007, but it is underutilized.

Florida is achieving great success with civil citations in cases such as low-level shoplifting where the individual must pay restitution and perform community service to avoid ultimately being convicted and jailed.

In the last three years, crime in Texas has declined at the same time that the state has closed three prisons. Texas has earned national plaudits for these policies that improve the back door of the criminal justice system, but we must also fix the front door. The biggest county in the state, Harris, is the place to start.


Originally published in the Houston Chronicle.


A New Push for Conservative Reform in California

A November ballot initiative in California is directed at reforming the state’s troubled criminal justice system. The California Safe Neighborhoods and Schools Act, would require that certain non-violent offenders—petty thieves, recipients of stolen property, those who write “hot” checks of less than $950, and low-level drug possession offenders—receive misdemeanor, rather than felony, sentences. The initiative would be made retroactive so that offenders in these categories who are currently serving felony sentences could be re-sentenced at the discretion of the court. Offenders with certain previous violent or sex offenses would be excluded and remain subject to felony sentencing.

State analysts project that the initiative could result in savings in the low hundreds of millions annually. These savings, in turn, would be redirected towards improved drug treatment, mental health services, and victims’ services. The Heritage Foundation discussed the ballot initiative here. Right On Crime signatory, B. Wayne Hughes, Jr., is a prominent advocate for the initiative, and he makes his case for the Act here.


Vikrant Reddy discusses drug policy reform on “All Sides with Ann Fisher”

“The war on drugs is still a good idea, but we have to change the battle tactics.”

Click here to listen to the interview.


Judge Neil Gorsuch on Overcriminalization

On Friday night, the Honorable Neil Gorsuch of the Tenth Circuit Court of Appeals delivered the Barbara K. Olson Memorial Lecture at the Federalist Society’s National Lawyers Convention in Washington, DC. Judge Gorsuch assumed the federal bench in 2006, and his name is frequently mentioned as a potential Supreme Court nominee in a Republican presidential administration. His remarks on Friday were wide-ranging, but a significant portion focused on overcriminalization. That section of Judge Gorsuch’s talk is transcribed below the video.

“What about our criminal justice system, you might ask. It surely bears its share of ironies too. Consider this one. Without question, the discipline of writing the law down—of codifying it—advances the law’s interest in fair notice. But today we have about 5,000 federal criminal statutes on the books, most of them added in the last few decades, and the spigot keeps pouring, with literally hundreds of new statutory crimes inked every single year.

“Neither does that begin to count the thousands of additional regulatory crimes buried in the federal register. There are so many crimes cowled in the numbing fine print of those pages that scholars have given up counting and are now debating their number.

“When he led the Senate Judiciary Committee, Joe Biden worried that we have assumed a tendency to federalize, ‘Everything that walks, talks, and moves.’ Maybe we should say ‘hoots’ too, because it’s now a federal crime to misuse the likeness of Woodsy the Owl. (As were his immortal words: ‘Give a hoot, don’t pollute!’) Businessmen who import lobster tails in plastic bags rather than cardboard boxes can be brought up on charges. Mattress sellers who remove that little tag? Yes, they’re probably federal criminals too.

Whether because of public choice problems or otherwise there appears to be a ratchet, relentlessly clicking away, always in the direction of more, never fewer, federal criminal laws. Some reply that the growing number of federal crimes isn’t out of proportion to our population and its growth. Others suggest that the proliferation of federal criminal laws can be mitigated by allowing the mistake of law defense to be more widely asserted.

But isn’t there a troubled irony lurking here in any event? Without written laws, we lack fair notice of the rules we as citizens have to obey. But with too many written laws, don’t we invite a new kind of fair notice problem? And what happens to individual freedom and equality when the criminal law comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?

The sort of excesses of executive authority invited by too few written laws led to the rebellion against King John and the sealing of the Magna Carta, one of the great advances in the rule of law. But history bears warning that too much—and too much inaccessible—law can lead to executive excess as well. Caligula sought to protect his authority by publishing the law in a hand so small and posted so high that no one could really be sure what was and wasn’t forbidden. No doubt all the better to keep us on our toes. (Sorry!)

In Federalist 62, more seriously, Madison warned that when laws become just a paper blizzard citizens are left unable to know ‘what the law is’ and to conform their conduct to it. It’s an irony of the law that either too much or too little can impair liberty. Our aim here has to be for a golden mean, and it may be worth asking today, if we’ve strayed too far from it.”


Vikrant Reddy: Overcriminalization, Overincarceration: A Conservative Response

Vikrant discusses reasons prominent conservative political leaders are shunning the “lock ‘em up and throw away the key” approach to crime and embracing a view that the nation has created too many crimes and too many prisoners.

Click here to listen to the entire podcast.