Marc Levin is the director of the Center for Effective Justice at the Texas Public Policy Foundation (TPPF), the state’s leading conservative think tank. He is also one of the founders of Right on Crime, a national campaign to promote criminal justice reforms in state legislatures across the country. Criminal justice advocacy has traditionally been the province of those on the left side of the political spectrum, but that has changed. Levin’s chief message, that incarcerating too many people for too long for nonviolent crimes isn’t a good use of taxpayer funds, has resonated with conservative voters and legislators. He advocates more effective and less costly measures, such as drug courts, which divert low-level drug offenders to treatment programs instead of prison, and more effective use of probation. Levin (pictured below) and his colleagues, in concert with reform advocates like the ACLU and the Texas Criminal Justice Coalition, have helped foment a shift in long-held attitudes about criminal justice in the state in recent years. After decades of adding prison beds, Texas has actually closed three adult prison units along with a number of youth lockups since 2011. We recently spoke to Levin at TPPF headquarters, in Austin, where he walked us through the conservative case for criminal justice reform.
Nate Blakeslee: Governor Perry made headlines recently when he appeared to back marijuana decriminalization at the World Economic Forum, in Davos, [Switzerland]. In fact, it wasn’t a surprise to people who have been paying attention to the governor’s record on criminal justice reform. Talk about the difference between our state’s reputation on law and order and the recent changes we have seen on the ground.
Marc Levin: Well, that’s a great question, and you’re obviously right about Perry. I think people forgot that he signed the bill in 2007 that [the Center for Effective Justice] worked on with the Sheriffs' Association, to allow cite and summons notices for certain misdemeanors, including the smallest amounts of marijuana possession. So it didn’t actually change the penalty—it still remains a Class B misdemeanor—but the police could give you a cite and summons notice [ similar to a traffic ticket ] instead of bringing you to jail. And of course, it was based on the research: we found very few people were actually sentenced to jail for small amounts of marijuana, but there were significant numbers in jail pre-trial who would at least spend the night. And if they couldn’t afford to bond out, they would spend weeks or months—maybe lose their jobs—before their case was resolved, which ultimately would be probation and/or a fine. So this bill just made common sense.
Governor Perry also signed a bill in 2003 that said for less than a gram of hard drugs, for your first offense you would get probation rather than prison. So the governor has been supportive of many things like that and has certainly supported budgets that have expanded drug courts and closed prisons—so I certainly wasn’t surprised. I think that’s what Perry was referring to when he said, “We need to be smart about who we’re incarcerating and incarcerate those who we’re afraid of, not those who we’re mad at.”
NB: Tell me a little bit about how we got to where we are today, with politicians like Perry saying, “Let’s be smart about crime.” For people like you and me who grew up in the eighties, when all conservatives talked about was the importance of law and order, this is a major change.
ML: And the nineties too, especially. Ann Richards built a ton of prisons and then George W. Bush built even more than she did. From the early seventies to the mid-2000's, you saw a six-fold increase in incarceration in Texas and across the nation. Of course in Texas, everything’s bigger, so we went from 30,000 prison beds to 155,000 prison beds. Now, again, there was a time when murderers and rapists were being let out way early, because we didn’t have enough beds, and so our view was that some of this is needed. But as time went on, we swept too many nonviolent and low-risk offenders into prison. There were a lot of penalty enhancements being created by the Legislature, new crimes and so forth.
NB: So how did we get from there to here? Was there one particular turning point? A scandal? Was it budget pressures?
ML: Well, it’s a combination of things. Our view has always been that the pendulum needed to swing a bit starting in the early seventies, but it swung a bit too far. People noticed that, “Look, we’re not getting the same return on the money we’re spending as we were when we were using that prison cell for someone who is really dangerous.” And the circumstances changed. We have five times more prison beds. And then there have been a lot of developments that have made alternatives to incarceration more effective, like electronic monitoring, risk and needs assessment, drug courts. These things weren’t around a few decades ago. There have been improvements in certain types of mental health and substance abuse treatment. Now we see medical treatments for treating opiate addiction with other pharmaceuticals. So, there are all sorts of things in that regard that have enabled us to have more confidence in various alternatives to incarceration.
Obviously, budgetary factors certainly are not irrelevant. But I will point out that in 2007, the year before the economic downturn when we had a budgetary surplus, Texas could have easily afforded to build more prisons. But instead, Speaker Tom Craddick told [Plano Republican] Jerry Madden, when he named him chairman of the corrections committee, “find another alternative that’s less costly.” And I think Speaker Craddick perhaps realized that we could have built all these prisons, but could we afford to pay to staff them? And lo and behold, the next budget cycle, we got this downturn. And even in good times you can’t afford to keep staff. We closed a wing