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.

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Georgia Targets Huge Gap with Juvenile Justice Databank Project

For discussion purposes, let’s imagine you are a juvenile court judge somewhere in Georgia. A young man and his attorney are standing before you, pleading the boy’s case. Within minutes you will decide whether the boy is sentenced to detention or a community-based program.

Something about how the young man tells his story makes you question, what else is going on here?  Has this kid been kicking around without a family, without role models, without direction and what he needs is help or, is this one of those kids who really needs to be off the streets?  Is this kid about to hurt himself or someone else?  What is the right decision here?

So knowing that these questions must be answered you log onto the state’s massive juvenile justice databank that contains everything you need. The young man’s entire legal record is there, all his previous interactions with the juvenile justice system, a record of every arrest, all previous court decisions, outstanding warrants for other alleged crimes committed in any county statewide.

It’s all there, everything you need to decide between detention and a treatment program.

 

Continue Reading on MikeKleinOnline.com

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ROC Signatory JC Watts leads Colson Task Force to Tackle Federal Prison Reforms

In yesterday’s Roll Call, former Virginia Congressman Alan Mollohan and Oklahoma Congressman and Right on Crime signatory JC Watts announced the formation of the Charles Colson Task Force to tackle federal prison reform. They write:

It is imperative that public safety remain the focal point of this conversation. When we talk about reducing federal spending on incarceration, we’re not advocating for the release of persons who pose a danger to society. But we also know that there are smarter and more cost-effective ways to deal with criminals using programs like drug courts and enhanced supervision. Moreover, federal prisoners should receive programming that helps improve their reentry chances and likelihood of success once they leave incarceration. [Continue reading at Roll Call…]

The new bipartisan Task Force is named after the late Chuck Colson, a former aide to President Nixon who, after serving time for Watergate-related offenses, founded the Justice Fellowship and became the leading figure in conservative criminal justice reform.

Below is the press release for the Colson Task Force. Find out more about the project at colsontaskforce.org


Former US Reps. J.C. Watts, Jr. and Alan Mollohan Announce Federal Corrections Task Force
Blue ribbon panel named for Charles Colson will take on federal prison overcrowding

Washington, DC- Today, former US Representatives J.C. Watts, Jr. and Alan Mollohan announced the establishment of the Charles Colson Task Force on Federal Corrections: a nine-person, bipartisan blue-ribbon panel mandated by Congress to examine challenges in the federal corrections system and develop practical, data-driven policy responses. Watts will serve as the Colson Task Force’s chair and Mollohan will serve as its vice-chair.

“The time is ripe for federal prison reform,” said Colson Task Force chair J.C. Watts, Jr. “Our blue-ribbon panel harnesses the expertise of some of the brightest justice policy minds in the country, including criminal justice leaders who have been working to safely reduce corrections populations in their home states. Together we will build on current momentum for improving efficiencies in the federal prison system and reducing its social and financial costs in a way that’s grounded in data and consistent with public safety.”

“I’ve long argued that instead of throwing good money after bad, Congress should follow the example of the states and take steps to curb federal prison population growth,” said Colson Task Force vice-chair Alan Mollohan. “I’m encouraged that there have been bills introduced that aim to do that, and I firmly believe that the Colson Task Force on Federal Corrections will be an excellent vehicle to help transform many of those ideas, and others yet to be developed, into law.”

The federal prison population has grown by a factor of eight since 1980, with 214,000 prisoners at the close of fiscal year 2014. While this population recently experienced its first drop in three decades, facilities continue to operate over capacity, endangering staff and prisoners and costing taxpayers nearly $7 billion—a quarter of the Justice Department’s budget. Continued prison overcrowding also jeopardizes critical efforts to provide prison rehabilitation, employment, and reentry programs that promote public safety and reduce recidivism.

The Colson Task Force is named for former Nixon aide Charles “Chuck” Colson who, after serving time in a federal prison camp for his role in Watergate, made a commitment to support prisoners and their families through the establishment of the world’s largest family of prison ministries. Task Force members include state criminal justice reform champions; a former federal prosecutor, judge, and defender; and others with critical perspectives.

Members of the Charles Colson Task Force:

  • J.C. Watts, Jr., Chair: Chairman, J.C. Watts Companies; Congressman (R-OK) (1995-2003)
  • Alan B. Mollohan, Vice-Chair: Congressman (D-WV) (1983-2011)
  • David C. Iglesias:  Director, J. Dennis Hastert Center for Economics, Government and Public Policy, Wheaton College; United States Attorney for the District of New Mexico (2001-07)
  • Jim Liske: President and CEO, Prison Fellowship Ministries
  • Jay Neal: Executive Director, Georgia Governor’s Office of Transition, Support and Reentry; Representative, Georgia General Assembly (R-Lafayette) (2005-13)
  • Laurie O. Robinson: Clarence J. Robinson Professor of Criminology, Law and Society, George Mason University; Assistant Attorney General, US Department of Justice Office of Justice Programs (1993-2000; 2009-12)
  • Cynthia W. Roseberry: Project Manager, Clemency Project 2014; Executive Director, Federal Defenders of the Middle District of Georgia (2009-14)
  • Judge Ricardo M. Urbina: Arbitrator and Mediator, JAMS; Judge, US District Court for the District of Columbia (1994-2012)
  • John E. Wetzel: Secretary, Pennsylvania Department of Corrections

The Task Force will convene in January 2015 and hold five meetings throughout the year. Its members will identify the drivers of federal prison population growth and increasing corrections costs; evaluate policy options to address the drivers and identify recommendations; and prepare and submit a final report in December 2015 with findings, conclusions, policy recommendations, and legislative changes for consideration by Congress, the Attorney General, and the President.

The Urban Institute and its partner, the Center for Effective Public Policy, is providing research, analysis, strategic guidance, and logistical support to the Charles Colson Task Force through a cooperative agreement with the Bureau of Justice Assistance, Office of Justice Programs, US Department of Justice.

Today’s event was hosted on Capitol Hill by US Representatives Frank Wolf (VA-10) and Chaka Fattah (PA-2), the chairman and ranking member of the House Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies, which led the effort to create the Task Force.

With today’s announcement also comes the launch of the Colson Task Force website, http://www.colsontaskforce.org, which will house the latest news and information on the Task Force’s meetings and other activities.

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Reddy: In Support of Mens Rea Protections in Ohio

Being convicted of a crime is a very serious event that can close many doors in a person’s life. This is why there are many measures taken to ensure that only the guilty are treated as such.

But now many states, including Ohio, have removed a key historical protection of citizens, mens rea. Mens rea, or ‘guilty mind,’ is the element of a crime that requires the perpetrator to realize that what they are doing is wrong or illegal. Without that requirement, a violation of a minor regulation can be criminal and punishable by jail time.

According to Right on Crime senior policy analyst Vikrant Reddy, this change in mental culpability requirements already lead to the trial of the Ohio Stowers family for violating a statute that criminalized operating a retail food establishment without a license, a law that they allege they did realize affected their private-membership food co-op. Despite winning their case on appeal, the Stowers faced possible jail time without any intent to break the law.

Among the states Ohio is presenting itself with the opportunity to take a stand against this endangerment of its citizens. Senator Seitz’s bill, SB 361 requires that all bills that are silent regarding mental state of the offender, should be construed to include a mens rea requirement. This bill offers Ohio the ability to be a safer state and to lead the way in mens rea reform across the country. Below is Reddy’s testimony from an appearance before the Ohio Senate on December 2, 2014.

[Read more...]

Prepared Testimony of Vikrant P. Reddy
Senior Policy Analyst, Texas Public Policy Foundation

Re: Ohio SB 361
December 2, 2014

Thank you for the opportunity to appear before you today to discuss SB 361, a bill that will make Ohio a national leader in combating overcriminalization. My name is Vikrant Reddy, and I am a senior policy analyst in the Center for Effective Justice at the Texas Public Policy Foundation (TPPF). The Foundation’s mission is to promote and defend liberty, personal responsibility, and free enterprise in Texas and the nation with academically sound research. We seek to advance these goals in several different policy areas. My work concerns research and advocacy in the area of criminal justice.

TPPF has supported legislative reforms in Texas that have coincided with the lowest crime rate the state has enjoyed since 1968 and with significant budget savings.[1] TPPF is also well-known for advancing these reform ideas in states throughout the nation with its national initiative, Right On Crime.[2] We were broadly supportive of proposals to reform Ohio’s criminal justice system in 2011 that resulted in HB 86.

One of the cornerstones of the Foundation’s criminal justice work is addressing overcriminalization. This term refers to the use of the criminal sanction to punish actions that historically would not have been considered crimes. Overcriminalization occurs in a variety of ways. Most obviously, governments simply create too many criminal statutes. In my home state of Texas, for example, we have eleven separate crimes relating to oyster harvesting.[3]

SB 361, however, is targeted at addressing a more insidious kind overcriminalization: the erosion of mens rea protections. Civil and criminal law are distinguished by the requirement that a criminal must have a guilty state of mind (mens rea), not merely a guilty action (actus reus). Roscoe Pound, a major twentieth century legal thinker, wrote that a crime is something “based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong.”[4]

Criminal statutes have historically included a level culpability—such as intentionally, knowingly, or recklessly—that must be demonstrated in order to convict a defendant. Nevertheless, an increasing number of offenses—often regulatory offenses—dispense with the mens rea requirement altogether. Alternatively, they require mere criminal negligence rather than intentional, knowing, or reckless conduct.[5] This, in effect, is often the same thing as eviscerating the mens rea requirement altogether.[6]

In a 2013 report, the Texas Public Policy Foundation detailed several examples of how these weakened mens rea requirements have resulted in abuses in several states.[7]

In nearby Pennsylvania, for instance, consider the Clean Streams Law and Solid Waste Management Act, both environmental protection statutes. XTO Energy, a company operating in Pennsylvania’s Marcellus Shale formation, violated federal laws in 2010 when it spilled wastewater. XTO paid a $100,000 fine and deployed a plan to enhance its wastewater management practices. The state of Pennsylvania, however, additionally decided to pursue criminal charges against the company even though there is no evidence that it “intentionally, recklessly, or negligently discharged” the wastewater. The attorney general countered this argument by saying that under the relevant laws, the state does not need to demonstrate intent.[8]

Michigan, yet another neighboring state, provides an example of this problems affects ordinary individuals, not merely large firms. In Michigan, it is illegal to operate a daycare without the appropriate license. Lisa Snyder, who had no knowledge of these requirements, was prosecuted when she offered to watch her neighbors’ children at her home on weekday mornings because the school bus picked up students near her driveway. Michigan officials threatened Snyder with various fines and jail time for “operating a daycare” when though she lacked CPR training, had not submitted a to premises inspection, or done several of the other things required to obtain a day care license. The case became a cause célèbre, and the prosecution was only halted after the intervention of the governor.[9]

Ohio, of course, is not immune. Consider this story, which my colleague Marc Levin and Isaac Gorodetski of the Manhattan Institute told in a Cincinnati newspaper op-ed in February:

On the morning of Dec. 1, 2008, the Ohio Department of Agriculture and Lorain County Health Department agents raided the home of the Stowers family and seized the family’s food, cellphones and personal computers. They were accused of violating a statute that criminalized operating a retail food establishment without a license, even though the Stowers believed they could maintain their private-membership organic food cooperative without permission from the government. While the Stowers won their case on appeal, they could have faced jail time even if they had no intent to violate any law.[10]

This problem could be addressed in the states—and at the federal level—by establishing a default mens rea in the state law. The American Legislative Exchange Council (ALEC), for example, has recommended model legislation that would apply a strong mens reaelement to all criminal laws that are silent on this issue.

Ohio is now proposing to be the first state in the nation to pass this important legislative reform. Senator Seitz’s bill, SB 361, proposes the adoption of a default mens rea statute in Ohio. Although there are many components to the legislation, the critical language is the following: “When language defining an element of an offense neither specifies culpability not plainly indicates a purpose to impose strict liability, the element of the offense is established only if a person acts recklessly.”

Legislators should of ensure that mens rea protections are included in every criminal law that is passed, but in those instances when the protections are lacking, this default language will be able to protect Ohioans. It ensures that an appropriate culpable mental state will always apply in every case.

 


[1] The Council on State Governments Justice Center, Justice Reinvestment State Brief: Texas (2007).

[2] See www.RightOnCrime.com.

[3] http://www.politifact.com/texas/statements/2013/mar/27/scott-henson/scott-henson-says-texas-has-11-different-felonies-/

[4] Roscoe Pound, Introduction to Sayre, Cases on Criminal Law __ (1927).

[5] “[T]o ensure that only persons who are truly culpable can be convicted and punished, the definitions of malum prohibitum offenses must include protective mens rea requirements. Unfortunately, many of the thousands of malum prohibitum offenses in federal law do not….Over 57 percent of the offenses considered by the 109th Congress contained inadequate mens rea requirements, putting the innocent at risk of criminal punishment.” Brian Walsh and Tiffany Joslyn, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law (Heritage Foundation and National Association of Criminal Defense Lawyers, May 2010), 3-4. The arguments made by Walsh and Joslyn focus on federal overcriminalization, but may reasonably extend to state overcrminalization too. Criminalizing ordinary business conduct is not sound public policy merely because the law is enacted by a state legislature or state agency rather than by Congress or a federal agency.

[6] “[T]o ensure that only persons who are truly culpable can be convicted and punished, the definitions of malum prohibitum offenses must include protective mens rea requirements. Unfortunately, many of the thousands of malum prohibitum offenses in federal law do not….Over 57 percent of the offenses considered by the 109th Congress contained inadequate mens rea requirements, putting the innocent at risk of criminal punishment.” Brian Walsh and Tiffany Joslyn, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law (Heritage Foundation and National Association of Criminal Defense Lawyers, May 2010), 3-4. The arguments made by Walsh and Joslyn focus on federal overcriminalization, but may reasonably extend to state overcrminalization too. Criminalizing ordinary business conduct is not sound public policy merely because the law is enacted by a state legislature or state agency rather than by Congress or a federal agency.

[7] See Vikrant P. Reddy, Overcriminalization in the States (2013).

[8] Andrew Maykuth, “Shale criminal charges stun drilling industry,” Philadelphia Inquirer, Sept. 12, 2013.

[9] Tahman Bradley, “Michigan to Mom: Shun Daughter’s Schoolmates,” ABCNews.com, Sept. 30, 2009.

[10] http://www.cincinnati.com/article/20140204/EDIT02/302040020/OPNION-Ohio-Legislature-on-notice?gcheck=1&nclick_check=1

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BBC Radio: Why Texas is Closing Prisons in Favor of Rehab

A few weeks ago, the BBC sent former David Cameron speechwriter Danny Kruger to Texas to look into the successes of that state’s criminal justice reforms. The first stop on his tour was our Right on Crime office at the Texas Public Policy Foundation in Austin. Kruger spoke to Right on Crime policy director Marc Levin as well as senior fellow Jerry Madden. In an article accompanying the half-hour broadcast (embedded below), Kruger described the evolution of of the conservative criminal justice reform movement, correctly identifying that it “goes way beyond the desire to save money”:

Consistent with the straightforward Texan manner, [in 2007,] the Congressional Republicans did not attempt to tackle what in Britain are known as “the causes of crime” – the socio-economic factors that make people more disposed to offend. Instead, they focused on the individual criminal, and his or her personal choices. Here, they believe, moral clarity and generosity are what’s needed.

Though fiscal conservatism may have got the ball rolling, what I saw in Texas – spending time in court and speaking to offenders, prison guards, non-profit staff and volunteers – goes way beyond the desire to save money.

Continue reading at the BBC, and listen to the whole show below.

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