On the differences between DOJ and TDCJ prison population totals for Texas, and the Next Big Task

It turned out a number of national-level advocates were interested in a question raised as a footnote in a post titled, "If Texas' justice reforms were so great, why does the state still have the nation's largest prison system?" When you ask TDCJ how many people are incarcerated in prisons and state jails, they'point you to the 2012 Statistical Report (pdf) which informs us that there were 152,303 prisoners in Texas prisons, state jails and SAFP treatment facilities as of Aug. 31, 2012. According to the Bureau of Justice Statistics, though, Texas had 166,372 state prisoners in 2012, or 14,069 more than TDCJ's oft-quoted numbers.

Looking at TDCJ's figures regarding who is in Texas prisons and state jails, the prison population dropped by several thousand in recent years, enough to close three prison units over the last two sessions and leave enough extra beds to consider closing a fourth. But throughout this period, the BJS reporting on Texas incarceration levels remained stubbornly high, only falling finally in this most recent 2012 report.

"Which is right?" several people have asked me, including from a couple of different national groups. Having now looked into it more than I really cared to and crunching a few numbers, IMO, "Both," is the correct answer. The question boils down to the definitions underlying the two numbers. When Marc Levin, Jerry Madden or Grits cite numbers in the 150,000s for Texas' prison population, what we're quoting are TDCJ reports on the number of people actually, presently incarcerated in one of Texas' 109 prisons and state jails. Secure probation and parole facilities are reported in the same document but broken out separately. County jail data are reported to the Texas Commission on Jail Standards which publishes monthly reports.*

The federal number, though, is attempting to get to an apples-to-apples number they can apply across states. They count prisoners based on their legal status at the time of custody, not whether they've formally entered the prison system or not. Instead, the BJS report says in a footnote that, "Jurisdiction refers to the legal authority of state or federal correctional officials over a prisoner, regardless of where the prisoner is held" (emphasis added.).

Looking at Texas' data in that light, there are two main categories of prisoners in secure lockups who are formally state prisoners but not counted in TDCJ's incarceration totals: State prisoners in county jails and parolees in treatment facilities or Intermediate Sanction Facilities but who have not had their supervision formally revoked.

So, let's look at those numbers. The reporting dates won't be apples-to-apples, but close. As of Aug. 31, 2013, here are the statewide totals, by my count, of state prisoners in county jails:

• Convicted felons in jail awaiting transfer: 4,769
• Convicted state jail felons awaiting transfer: 1,186
• Parole violators (technical): 2,170
• Parole violators (new crime): 2,810
• Convicted SJF, sentenced to county jail time: 823
• Total: 11,762, or 17.5% of Texas' 67, 096 county jail prisoners

Now, let's look at TDCJ's most recent statistical report, which provided numbers as of Aug. 31, 2012 (the new one is due out soon). Here are the categories Grits identified as fitting the BJS definition:

• Intermediate Sanctions Facilities: 1,831
• Parolees in SAFP treatment programs: 318
• Total: 2,149

Adding those to the county jail numbers, one gets 13,111. The difference between the DOJ's number and TDCJ's for 2012 was 14,069. So that explains most of the difference and the rest may be accounted for by the disjointed dates and/or some other small category of state prisoners BJS counted that I didn't spot with a cursory glance.

Bottom line: Marc Levin is right that there are fewer people locked up in Texas prisons and state jails. And I suspect even he would acknowledge that the greater credit for those reductions goes to the parole board than the 2007 probation reforms. Rissie Owens and Co. have inched up parole rates by a few points and it made a huge difference. Meanwhile, some of the national advocates (even if motivated perhaps in part by jealousy - same reason everybody loves to hate the Dallas Cowboys!), have just cause to scoff at claims of de-incarceraton based on federal data. For that matter, even using TDCJ's lower number, we still have more people incarcerated in Texas than California did even before its recent court-ordered reduction.

Texas has done most of what it can on the supervision side to reduce revocations. (Probation revocation rates remain stubbornly high but have improved greatly for parole.) The next step for Texas has to be actual sentencing reform, adjusting penalty categories for nonviolent drug and property offenders to make room for violent prisoners being held on extremely long sentences.

That's the biggest reason why the Texas Legislature balked at doing more for the last three sessions following the 2007 probation reforms. The obvious, next steps they need to do are really hard and small-government conservatives, especially after Jerry Madden's departure from the House, have been unable to muster the political capital necessary to get the job done. IMO the votes are there on the House side in particular to support pretty significant reforms if the leadership would ever let the bills get to the floor. The House Calendars Committee has become a graveyard for reform legislation, with Speaker Joe Straus, like his predecessor Tom Craddick, largely shielding the membership from voting on most of the promising bills that get out of committee.

For example, by my count there have been sufficient votes on the floor of the Texas House to pass a bill reducing low-level marijuana possession from a Class B to a Class C ticket-only offense ever since the House Criminal Jurisprudence Committee first unanimously voted such a bill out of committee in 2005. This year that committee passed a bill lowering penalties for defendants under 21, which also stalled in Calendars. Under both Speakers Cradddick and Straus, the Calendars Committee has consistently refused to let such legislation onto the floor. In retrospect it was a miracle (spurred by pragmatism: they couldn't afford to build new prisons) that the 2007 probation reforms ever got a vote.

FWIW, my sense is that Texas' prison population will go a little lower, still, on its current trajectory, so long as the parole board's approval rates don't decline again. I suspect we can even close one or two more prisons. But even with the pleasing contribution of a continued falling crime rate, Texas' too-high sentencing categories for the most common nonviolent offenses must change before state government's incarceration footprint can be reduced very much further. That's the next, big task.

* Note to the Texas Commission on Jail Standards: Please put your old monthly reports online in an archive!!