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 at a unit south of San Antonio where all the natural gas is coming out of the ground; and the prison guards are going and taking jobs making twice as much driving trucks. You do reach a point when it’s hard to staff as many prisons as you have, and thankfully we’ve now been able to close three adult prisons and over six juvenile lock-ups just in the past several years.
NB: How important was the 2007 scandal at the Texas Youth Commission, which oversees juvenile lock-ups? Did that drive change, or would it have happened anyway?
ML: Oh, no. Reporting on that scandal put this on the agenda, when the public learned about these terrible abuses of kids in these lock-ups by guards—sexual and violent abuse—as well as youth-to-youth abuses that weren’t being sufficiently addressed. Before that, juvenile justice reform wasn’t on anybody’s agenda, except maybe ours and the Texas Criminal Justice Coalition and Texas Appleseed and a couple of other groups. All that coverage made it the number-one item on the agenda. It led to Senate Bill 103, which said misdemeanors—like youth in possession of alcohol, marijuana, graffiti—were no longer going to have them be eligible for state lock-ups. We created a review process so youths would no longer be held once they completed their rehabilitation, and the bill also put in place video cameras and an ombudsman to try and root out the abuses. Of course, there was a major housecleaning of the administration there. So, now we’ve got about 1,300 youths in the state youth lock-ups whereas in 2006, there were about 5,000. So we’ve seen this enormous decline.
We gave the counties about $50 million to handle the misdemeanor cases, which is a little less than half of what the state was spending, so it wasn’t an unfunded mandate. And then, in 2009, came the commitment reduction program, which said juvenile boards can voluntarily send fewer youths to state lock-ups and get a share of the savings to use for local programs, most of which are nonresidential. It’s been very effective. In just the first year we saw 36 percent fewer commitments, and we continue to see juvenile arrests and crime go down. I think they would like to move in a direction that’s more along the lines of the Missouri group homes model, which we recommend and which uses smaller facilities instead of big lock-ups. With these group homes, the kids actually go to school, and in the schools they don’t wear jumpsuits or things like that. They’ve had great outcomes: an 8 percent recidivism rate. We know from all the research that keeping kids closer to their friends, closer to their churches, other sources of support in the community that can work with them on reentry, really leads to better outcomes.
NB: Talk a little bit about how you sell these ideas to conservatives. I imagine when you talk to a conservative lawmaker who is worried about pushback from the district, he or she is not going to worry about whether someone is having a positive experience in the juvenile justice system or not.
ML: That’s right. Certainly we start out with certain principles, including personal responsibility—people have to be held accountable for their actions. And victims’ rights is one of the main reasons we got into this: to try to make sure that victims get restitution, that they’re satisfied with the outcome of the system. One of the things we found in a survey of victims is that the vast majority of victims of property crime first and foremost want restitution, and secondly, community service. Many of them also want an apology. Unfortunately, what we’ve found is too often victims don’t get restitution. When you send somebody to prison or jail, the data shows there is almost zero chance of getting restitution. Whereas in Texas, probationers pay about $60 million in restitution every year and do another $60 million worth of community service hours, picking up trash on the side of the road and things like that. So, again, this isn’t to say that people who are dangerous shouldn’t be in prison, but it is to say that people that have, for example, stolen from somebody, the best way for that victim to be restored is for that offender to get a job and pay restitution. And, of course, probation is not a walk in the park. They have to adhere to a curfew, drug testing, reporting regularly to their probation officer, and so forth.
People realize that when you put somebody in prison for six months or a year, you get terrible results. Two-thirds recidivate. And if you can do something like a drug court, where you get far better results and it costs less, you know, it’s just so common-sensical that, frankly, whether you’re a conservative or a liberal, we’ve had a real outpouring of support for that. People look at the Right On Crime statement of principles and see people who have signed, like Bill Bennett, the former drug czar, and Ed Meese, the former attorney general. These people are not soft on crime.
NB: Everything we read now is about how the nation is becoming more divided and more polarized. You’re working on one of the few areas where both sides of the political divide seem to agree on something.
ML: Yeah, absolutely. Even in D.C., we’re seeing this. I testified before the U.S. Senate Judiciary Committee in late 2013, and then in January they passed the Durbin/Lee bill to ratchet down federal drug mandatory minimums by one-half and make some other very good reforms. Mike Lee is a tea party conservative senator from Utah and Dick Durbin is a Democrat from Illinois. What was particularly exciting for those of us here in Texas is that Ted Cruz ultimately decided to not only support it but sign on as a co-author, which was really momentous, I think. Finally this bipartisan momentum for criminal justice reform that we’ve been seeing in states across the country has even started to seep into Congress, where it’s traditionally a logjam.
I think that conservatives are uniquely situated to be in the lead on this issue, because a lot of the public doesn’t trust the left on criminal justice. There are some good reasons for that. There have been some places where you’ve kind of seen an insufficient emphasis on personal responsibility and kind of a viewpoint that society is the primary cause of crime rather than individuals. I think, as conservatives, we basically reject that. Now, undoubtedly, there are factors in people’s lives, especially their upbringing—people who may have been abused by one or both of their parents—that make it more likely that they are going to get involved in the criminal justice system. But it doesn’t mean that you don’t hold that person accountable. The question is, What do you do? What’s going to be the most effective thing to get them on the right path? There are people that can’t be reformed, but the vast majority of people in the criminal justice system can change. Ultimately, even among those who go to prison, almost 99 percent are released at some point, and they live next to you and me.
NB: On this issue of why conservatives are a good choice to lead this movement, I think some of our readers would say, “Yes, it ought to be conservatives who are doing this unwinding, because they are the ones that wound it up in the first place.” If you guys are moving, as you say, the pendulum back towards the middle, where it belongs, is there a sense in which some of what you’re undoing was done by fellow conservatives? The Bill Bennetts of the world?
ML: Well, I think the winding was done by both sides. You definitely had Michael Dukakis build a ton of prisons when he was governor of Massachusetts. Mario Cuomo built a ton. So, it was very much a bipartisan build up. I mean, Bill Clinton famously went down to watch an execution in Arkansas when he was president, and I can’t imagine Obama doing that or even Bill Clinton doing that if he were president today. I think part of it was that each side was trying to out-tough the other. Maybe some liberal politicians believed in it, maybe some of them just did it because it was politically necessary.
We did a poll of Texans a couple of months ago that basically showed 80 percent support across the board for all these reforms for alternatives for nonviolent offenders. So, when you have 80 percent, that’s strong among every demographic. But what’s interesting is that that [support] was the strongest among people who identify as tea party voters. I think what you’re seeing is the skepticism of government that animates the conservative movement, particularly on the tea party or libertarian end. Through the revelations about the NSA or things like the Michael Morton case, people have started to realize that a lot of the things that the government does wrong in, for example, health care or education, it also does wrong in criminal justice. And you can argue that when there’s a case like Michael Morton, there’s a worse consequence in criminal justice when government messes up than anywhere else, because you lose potentially your life and at the least, your liberty.
For a time, maybe some conservatives gave it a pass, like they gave the military a pass at the national level. But I think now conservatives are saying, “Look, every part of government needs to be held accountable, including the criminal justice system.”
NB: And the Texas Department of Criminal Justice is big government—I mean, that is an enormous bureaucracy. And I imagine part of the difficulty in unwinding it will be that once you build something huge like that, it gets its own internal momentum, especially when it employs a lot of people. It’s all well and good to say, “Let’s close two prisons this year,” but then you have to decide which two prisons. Budget writers have to go to each senator and say, “Give me ten reasons why it shouldn’t be the prison in your district.”
ML: You are certainly correct. In the cases where we closed juvenile facilities, there were certain legislators from those areas who fought that, but ultimately they lost. You know, in upstate New York there was a juvenile facility that was completely empty, and they were going to have to pay the employees to do nothing for a whole year until Andrew Cuomo—obviously he’s a Democrat, but I’ll give him credit—went down there and held a news conference and said, “Look, this is ridiculous.” It was the line in his State of the Union address that got the most applause among Republicans, when he said, “Corrections shouldn’t be a jobs program. We should have as many corrections facilities as we need for public safety but not one more.” And so I think once we win the battle on the policy grounds, it may take an extra six months or a year to actually close a facility, but ultimately it becomes indefensible to have, especially in a fiscally conservative state like Texas, more capacity than you need. Certainly we’ve seen over the years, for example, prison guards unions in California and Michigan fight reforms, but I think even they’ve started to recognize that it’s a losing battle and the public isn’t going to tolerate just paying to keep places open and keep people employed when the facilities aren’t needed.
NB: Can you imagine a day in which instead of 150,000 inmates in Texas, there are only 75,000? How difficult would it be to remove all those employees from the public payroll?
ML: Cutting the prison population in Texas to half would require tremendous changes to all sorts of statutes. What I would say is even if you closed three or four prisons every year, you still wouldn’t need to terminate anybody. You have enough just through attrition. When we looked at the data, we found about five thousand prison guards either retire or pass away every year. And by the way, the average life span for a prison guard is about 62; they have higher rates of heart attack and all sorts of other problems. I have tremendous sympathy for the work they do.
I don’t like to set arbitrary goals. We don’t necessarily know what the optimum is, but we certainly know there are certain groups of offenders, probably not half by any means, but certain groups who could be better handled in drug courts and in other programs. I think one of the things we can do is let the market determine this in some way. We have an incentive funding bill that we passed in 2011 with [Dallas Republican] Senator Carona. It says counties can enter into a deal with the state and send fewer nonviolent offenders to prison and then get a share of the savings. It’s not just based on sending fewer people to prison but also on reducing recidivism among probationers and increasing restitution and employment. So it’s a performance-based model. If that could actually be funded, then the counties could say, “Look, our county could send 5 or 10 percent fewer to state prison next year, knowing that we’re going to get the money to get X, Y, and Z”—whether it’s drug courts, electronic monitoring, or mental health treatment.
Currently, the easiest thing to do is send somebody to prison because then the state pays 100 percent of the cost, but if we correct that misalignment of resources through this incentive-funding model, we will naturally see what the best allocation of those resources would be. It’s going to depend on who’s elected district attorney and who’s elected judge in different counties, but over time I think you would see not only the incarceration rate go down but also more return on every dollar we’re spending in terms of public safety.
NB: You mentioned California prison unions. I think people in this state would be shocked at how powerful they are. It’s not that way here, but do you get any pushback at all from American Federation of State, County, and Municipal Employees when you say things like, “We could be doing this with much less money,” which they will hear as, “with far fewer people employed.”
ML: We really haven’t actually, and I can tell you, I think, some of the reasons why. First of all, I don’t think we can incarcerate people for a lot less per day than we are. I think Texas is definitely on the low end in that regard. But the prison guards’ associations in Texas did support the reinvestment package in 2007 [diverting money from prison construction to alternatives to incarceration], and my sense is that they felt that as long as we continued to build more prisons, there would never be money to increase their salaries. And I think that’s true.
NB: They envision a future with fewer but perhaps higher-paid correctional officers?
ML: The other aspect is the working conditions have been so problematic and they’ve had such high turnover that frankly it’s hard to build a very effective political association. The working conditions, if you look at a survey of prison guards, are a bigger concern than the pay. Of course, they’re not air-conditioned in the summers, and that’s brutal for the officers. And then just the challenges of dealing with the inmate population, especially when, in many instances, there’s still not adequate programming to keep them occupied, whether that’s treatment or education or vocational training. Right now you don’t even need a college degree to be a guard, and they’re not expected to be part of any treatment or programming or anything like that. I think that it would be interesting to look at hiring maybe some percentage of prison guards that do have the background to provide some types of rehabilitative and educational programming.
NB: Let’s think back to the pre-Ruiz period, the dark period in the history of Texas prisons. [Ruiz v. Texas was the seminal 1980 court case challenging conditions in Texas prisons that resulted in de facto federal control of the system.] The days when wardens let inmates—known as building tenders—enforce order in the units, and our prisons were known for their brutality. The federal government intervened in the early eighties and said, essentially, everything about Texas prisons is wrong and needs to be fixed. And in fact, over the next twenty years, there were enormous changes. Are we now in the middle of another major transition? Is it the case now that if these reforms that you and others are working on are allowed to play out for ten more years, will we look back on the nineties and 2000’s and see a prison system that we don’t even recognize? Is there the potential for that?
ML: Yeah, I think so. The difference is that this time it’s being driven by the democratic process rather than a judicial edict. But I have considerable respect for a lot of the changes that were made as a result of the Ruiz ruling. I think undoubtedly those changes ended up pushing the per inmate cost up quite a bit, but the reality is that there were a lot of problems. And today TDCJ is rightfully pretty proud that there’s, for example, quite a bit less gang activity in the Texas prisons relative to, for example, California. However, that doesn’t mean we shouldn’t look at reforming certain things, like solitary confinement. We have over eight thousand inmates in solitary confinement, and a major concern for us has been the fact that several hundred are directly released from solitary to the public, after they’ve been by themselves for 23 hours a day, seven days a week. I think that there’s an opportunity to reduce the use of solitary confinement quite a bit while still maintaining order in the prisons. In Mississippi a couple of years ago, Governor Haley Barbour reduced by 80 percent the use of “supermax custody,” which is basically solitary confinement. They had no additional disruptions or anything like that.
There’s been litigation in the past, and I’m sure there’ll be litigation in the future. We don’t sue people, but I think the public and the policymakers see the wisdom of the ideas we advocate. We haven’t seen anybody in Texas lose an election recently because they supported criminal justice reforms. Rather, we’ve seen the governor being credited nationally. Jerry Madden and [Senate Criminal Justice Chairman] John Whitmire have gotten tremendous and well-deserved attention nationally. And I’m really excited. I know that we’ve got a number of people that came in last session who are very interested in this. So, yeah, I do think we’re in the middle of a transformation. People are demanding a system that’s more effective and saying, you know, we don’t want to just punish for the sake of it. We want to get results for public safety. We want to see people in the work force, paying child support and paying restitution to victims, and really being able to reintegrate effectively into society.