Hooked on Hard Time

When Ann Richards became governor in 1991, the state was facing a prison crisis. County jails were filled with inmates waiting to go to prisons that were already over capacity, and the counties were suing the state for refusing to take the inmates. Faced with building 25,000 new beds just to get free of the lawsuit, Richards, a recovering addict herself, resolved that a good portion of any beds built on her watch would be drug treatment beds. The idea was to get at the root of the problem: A 1989 study by the Texas Commission on Alcohol and Drug Abuse had determined that roughly eight in ten inmates had substance abuse problems or had committed a drug-related crime. Aided by Senator Ted Lyon and others, Richards pushed through the legislature one of the most ambitious inmate drug rehabilitation programs in the country.

But Richards’ New Texas was fleeting. The number of drug treatment beds has essentially remained flat since 1994, the year she left office. To date, not even half of the original rehab beds allotted by the Legislature in 1991 have been funded, much less any additional beds. In the intervening decade, driven by stricter sentencing and parole rules, Texas’ incarceration rate has increased by 150 percent, making the Texas Department of Criminal Justice not only the largest prison system in the country, but one of the largest in the world. Meanwhile, TDCJ-funded community-based corrections programs, which divert many potential inmates into drug treatment programs before they even enter state custody, have not received a budget increase from TDCJ in years. To judge from the criminal justice budget–which includes four new prisons–now working its way through the appropriations process, criminal justice in the Perry era will mean more of the same.

Dorothy Browne, who worked on criminal justice issues for Richards, recalls the heady mood when Richards entered the governor’s office. “We were thinking big. We visited programs around the country,” says Browne, now chief of staff for Austin Representative Elliott Naishtat. At the time, TDCJ was doing virtually nothing for addicts, other than allowing Alcoholics Anonymous groups to meet. “Incarceration is rehabilitation,” was the prevailing mentality at TDCJ headquarters in Huntsville. But what about when the inmate went back into the streets? “The research showed that if you did [drug treatment] right, and get the right people into the program, then recidivism rates were very low, ” Browne says. The result was an ambitious plan to build a 12,000-bed network of treatment centers, known as Substance Abuse Felony Punishment Facilities (commonly called Safe-P), to which judges could, at their discretion, send felons with drug problems for an intensive treatment program, including up to nine months inside the facility, followed by three months of treatment in a half-way house, and six to nine months of outpatient treatment. The 1991 Legislature also directed TDCJ to develop 2,000 additional treatment beds for incarcerated inmates (known as the In-Prison Therapeutic Community or ITPC), for 14,000 beds designated for drug treatment. Control over treatment money was given to the Texas Commission on Alcohol and Drug Abuse (TCADA), which forced Huntsville to get on board with the new attitude in Austin. Suddenly, “people were coming to Texas to study our program,” Browne says.

But something went wrong. To date, only 4,500 beds have been allocated for the Safe-P program, and only 800 for ITPC. As soon as Bush took over, Browne says, the emphasis reverted to incarceration, not rehabilitation. It didn’t help matters that TCADA became embroiled in a contracting scandal and budgetary control over treatment was handed over to TDCJ. The agency began dragging its feet on implementing the program, according to Browne. “Out of 150,000 inmates, they can’t find 2,000 to put in ITPC,” she scoffs. “They didn’t scrap the program; it just didn’t grow. There hasn’t been anybody in a leadership role.”

In addition to its own treatment programs, TDCJ also gives grants to local authorities to develop community-based correction programs, which judges can opt to use for felony offenders as an alternative to prison. Roughly half of the 3,400 community correction beds provide drug treatment for offenders. The programs are popular with judges, who appreciate the discretion to assign a punishment that fits the crime. Yet despite a backlog of referrals, the number of beds available has remained static. This year, TDCJ has proposed a modest increase of 500 beds, yet the agency’s funding levels for existing beds have not kept pace with rising costs at the facilities already in place. Lewis Rosenthal runs a TDCJ-funded restitution center in Elgin, which helps residents find work in the community to pay off their court costs and to compensate their victims. (Residents spend nights and weekends at the facility.) Rosenthal points out that many of his charges earn more than his staff members, who start out at a salary of only $15,000. Turnover is high, which affects the quality of care. Correctional officers are in line to receive a raise this session, but community corrections staff likely will not, unless Rosenthal and his colleagues can convince the legislature that their facilities are cost-effective alternatives to incarceration.

Prison officials do not seem convinced. Last summer, responding to predictions of yet another surge in the prison population, the agency called for construction of three new maximum security units at a cost of $544.3 million, plus another $299.5 million to contract with counties and private facilities for more space. As a fiscal compromise, TDCJ proposed meeting the remainder of the projected demand through expanded use of “intermediate sanction facilities,” where parole violators (who otherwise would be revoked and sent back to prison) can be punished for short periods. These hastily procured facilities–think of a cage inside of a warehouse–are a throwback to a less enlightened era in Texas penal history. But they do free up prison space, and TDCJ suggested that counties pursue a similar arrangement (with TDCJ funds) for probation violators. The agency also suggested increased use of electronic monitoring equipment for parolees. Conspicuously absent from their proposal was any significant expansion of drug treatment, either through community-based corrections, or through TDCJ’s own programs.

Yet according to the state’s own studies, Safe-P and ITPC are successful, cost-effective programs. A Criminal Justice Policy Council study found that offenders who complete all three phases of the Safe-P program recidivate (that is, return to prison) at a rate of only seven percent. This compares to an overall TDCJ offender recidivism rate of 22 percent. But the science of criminal justice is a political one, and treatment proponents argue that TDCJ has a thumb on the scale. When you factor in those who entered the program but did not continue to participate until the end, Safe-P has a relatively high recidivism rate of 32 percent. Counting these dropouts towards the recidivism rate for treatment programs, as TDCJ does, is controversial. Relapse is considered a normal part of rehab by most treatment professionals, and one criticism of Safe-P is that it does not have an adequate mechanism to reintegrate dropouts; too many are simply sent back to prison. Still, even with the Policy Council’s strict definition of recidivism, the numbers show that Safe-P saves the state money, because it costs less to house and treat offenders in Safe-P’s minimum security environment. The more Safe-P expands, presumably, the greater the savings to the state. With 150,000 inmates in TDCJ, and fewer than 10,000 receiving treatment each year, there would seem to be ample latent demand for drug treatment and considerable savings potential. Likewise, with a large backlog for community corrections beds (Lewis Rosenthal reports a waiting period of up to a year at his facility in Elgin), the savings potential seems high there as well.

Still TDCJ is resistant. How resistant? As head of the Criminal Justice Policy Council, Tony Fabelo is charged with forecasting how much capacity TDCJ will need. Since last summer, when Fabelo predicted an extra 15,000 beds would be needed, there have been rumblings from legislators, including Senate criminal justice veteran John Whitmire, that the Parole Board was revoking too many people, particularly for technical violations (e.g., failure to report) involving no new crime. (A new set of parole guidelines will be finalized this spring.) In the House, El Paso Republican Pat Haggerty, who chairs the Corrections Committee, announced last fall that he would not support any new construction; he was joined by Ken Armbrister in the Senate. In January, Fabelo tested the winds again and released a new report, in which he predicted that zero new capacity would be needed. Yet, somehow Governor Perry’s new budget still calls for four new prisons. Call it the Pentagon effect. According to TDCJ spokesperson Glen Castlebury, regardless of whether the agency has people to fill them, they still need the new units, two of which will be maximum security, for “safety and efficiency.”

“They got to Perry,” one Austin consultant said of the TDCJ board. “Some of ’em [TDCJ administrators] will tell you flat out they’re just not in the rehab business,” said the consultant, who has worked in the private drug treatment and corrections business for years, often as a contractor for TDCJ (and for that reason, asked not to have his name used). There is also a territorial interest at work, according to another contractor in the private treatment business. Much of the drug treatment, particularly the residential and outpatient services following release from a Safe-P or ITPC facility, are handled by private contractors. The Kyle Unit near Austin, which hosts 800 ITPC beds, is also run by Wackenhut, a private operator. If the future of drug treatment means privatization, some insiders say, then TDCJ isn’t interested. Texas now has nineteen privately managed corrections facilities, but the push for privatization has come not from within TDCJ, but from without. According to some in the private corrections business, the agency feels threatened by competition and has stacked the deck against private operators in Texas. Community corrections facilities, meanwhile, tend to be administered by counties or judicial districts; TDCJ just provides the money.

Also working against treatment is the lingering momentum of the prison construction boom, arguably the largest public works project ever undertaken by the state of Texas. The boom made a lot of contractors rich in the 1990s, and provided lucrative employment for several former legislators and TDCJ officials, such as former board member Jerry Hodge, who has done a tidy business selling medical supplies to the prison system. Lowering the incarceration rate is not high on the list of priorities for these parties. “The bottom line is, they don’t want the money to go outside of their jurisdiction,” one contractor says. When resources are diverted from incarceration to treatment, “there’s still money being spent,” he says. “But it’s a different set of people who are getting the contracts.”