Fix prisons, drug policy and justice system
As Texas lawmakers figure out what to do with an eyepopping $32.7 billion budget surplus, they should act to ensure that the criminal justice system delivers a better public safety return on taxpayers’ investment.
Some of the solutions, such as upgrading conditions in the state’s prisons, will come with an upfront price tag but benefits over time, while others, such as creating a “second look” for those convicted as youths, will immediately save money.
But what matters more than dollars and cents is arriving at policy solutions that yield both greater safety and fairer outcomes for all Texans.
Lawmakers need not worry about building new prisons. The most recent data suggests that crime is trending downward in Texas cities, from Houston to Dallas to Waco.
And though courts continue making their way through the pandemic-induced backlog of cases, projections suggest that the state prison population will stay just below its 133,731 operating capacity through the end of 2025.
A/C and safety
When it comes to improving conditions, though, there is plenty to do.
For example, the Texas Department of Criminal Justice requested $30 million to address thousands of fire code violations that were exposed through a Houston Chronicle investigation after Jacinto De La Garza was burned to death in a Woodville prison.
A bigger-ticket item is air conditioning for many Texas prisons. A November 2022 Harvard study found that between 2001 and 2019, 271 heat-related deaths occurred among incarcerated people and staff in Texas prisons that lack A/C.
Fortunately, the Texas House budget sets aside $1 billion to air condition the remaining units. The Senate should follow.
This is not only humane, but it also serves public safety. Consider that there was a 40 percent turnover rate among correctional officers in 2021; surely some of guards’ discontent is related to the danger of working through Texas summers without A/C. And beyond the direct effects on prisoners’ and staff health, heat makes everyone more irritable and prone to violence.
‘Second look’ law
Even as lawmakers work to improve conditions behind bars, they should also act to minimize incarceration that is not necessary for public safety. Several blueprints for accomplishing this were left on the cutting room floor last session.
For example, in 2021 both chambers overwhelmingly passed legislation to allow incarcerated people convicted as youths to receive a “second look” review by the Board of Pardons and Paroles after serving two decades in prison.
While Gov. Greg Abbott vetoed the bill out of concern for a technical conflict with jury instructions, his veto message nonetheless expressed support for the concept, which received vocal support from Lt. Gov. Dan Patrick last session, and lawmakers have filed a new version this session as House Bill 213.
Similar “second look” bills have been enacted with bipartisan support in Ohio, Pennsylvania and Michigan, and data from Philadelphia shows the recidivism rate among those released after such sentencing reviews is just 1 percent.
Texas lawmakers should also re-examine the state’s drug policies to better distinguish between otherwise law-abiding Texans who are suffering from substance use disorder and drug kingpins who are trafficking in poison.
Fentanyl threat
An estimated 5,000 Texans died from drug use between July 2021 and July 2022. While these deaths are often lumped together as “overdoses,” state Sen. Drew Springer aptly pointed out that in many instances the decedent (often a teenager) believed they were consuming an ordinary narcotic pill that actually contained fentanyl and other adulterants.
Thankfully, bipartisan legislation embraced by Abbott would legalize fentanyl testing strips that can help users avoid taking fentanyl-spiked substances.
Lawmakers should also act to remove some of the limitations on the state’s Good Samaritan law, allowing more people to make an emergency call to help someone who is overdosing without fear of being prosecuted.
More broadly, how can it be said that our current strategy to combat illegal drugs is working when thousands of people with substance use disorder die and many who survive end up with a felony record that haunts them long after they get clean?
Rethink possession
Even as we put more resources into prosecuting kingpins and intercepting drugs coming across the border, Texas should rethink giving people — especially young people — felony convictions that could stay on their record for life simply for possessing minute quantities of drugs.
Legislation such as House Bill 939 would reduce the penalty for possession of less than a gram of drugs from a state jail felony to a misdemeanor.
Lawmakers should pair this proposal with a budgetary provision that funds counties to offer treatment in such cases. Currently, the state provides only minimal funding for misdemeanor probation, and state grant programs for treatment focus on felony cases.
Finally, there is a sensible way to address the collateral consequences of a criminal record that often frustrate those seeking employment and housing.
In 2021, the Texas House overwhelmingly approved House Bill 3601, which would have automatically sealed the criminal records of those who are entitled to this remedy under existing Texas law.
It was not taken up in the Senate. Research has found that fewer than 7 percent of eligible people file such a petition, leading states from Utah to Pennsylvania to enact similar automation legislation known as “Clean Slate.”
In Texas, the entitlement to sealing applies to people who received a single, nonviolent misdemeanor conviction but have lived in the community for years with no further brushes with the law.
Sealed records
Separate “New Wings” legislation could expand the availability of record sealing for additional offenses. However, automation would not apply to categories of cases in which record sealing is left to the judge’s discretion.
Notably, record sealing is distinguished in Texas law from expunging records entirely; sealed records can still be viewed by law enforcement, used to enhance subsequent convictions, and accessed by occupational licensing agencies with jurisdiction over sensitive professions such as teaching, law and medicine.
These changes would build on Texas’ recent accomplishments.
Since 2007, Texas has been a national leader in fighting crime, right-sizing its prison system, and ensuring due process. Texas has closed 16 prisons, been cited for instituting the “gold standard” in legislation to prevent wrongful convictions, and in 2020, through a directive by the governor and Board of Pardons and Paroles, established a groundbreaking clemency process for victims of human trafficking and domestic violence.
Now, Texas policymakers have the resources and ideas they need to take the next steps and make sure the Lone Star State continues to lead the way in advancing safety and justice.