February 7, 2004 - The Star-Ledger (NJ)

Texas Re-Examines Its Throw-Away-The-Key Approach

Bar Association Meeting Looks at State of Nation's Criminal Justice System

By Kate Coscarelli

SAN ANTONIO -- For decades, Texas has been nearly single-minded in its efforts to put criminals behind bars for as long as possible.

But now, with its prisons bulging with more than 150,000 inmates and after putting more than 300 people to death, the state with the largest criminal justice system in the country is examining the policies and practices that got it to this point.

Efforts are under way to reduce the prison population by sending people to community-based mental health and substance abuse treatment programs and putting them on parole instead of in state prison.

"Short of violating the Constitution, I'm not sure you can have a system that is tougher than the one we have in Texas," said state Rep. Ray Allen, a Republican from the Dallas area. "We have made some pretty strenuous efforts to add some smarts to that. ... The consensus is, we need to do more."

Allen made his remarks to a commission of judges and lawyers in San Antonio at the week-long mid-year meeting of the American Bar Association, the nation's largest lawyers group. The testimony came yesterday at a public hearing on the state of the nation's criminal justice system.

The commission was established by the association to gather information on the criminal justice system and make recommendations on how to improve the system. It was formed after Supreme Court Justice Anthony Kennedy spoke last year about problems he saw -- a system crowded with minorities, many sentenced to long prison terms for relatively minor crimes, and then returned to society with no support system.

Some in the legal community point to the fact that Texas is examining its criminal justice system as proof that something big is happening around the country, said commission chairman Stephen Saltzburg, a professor at George Washington University Law School.

The commission, which has been holding public hearings across the country, is expected to make recommendations to be put to a vote in the bar association's policy-making body this summer.

The panel was inspired by a speech Kennedy gave last August to the bar group in which he said: "Our resources are misspent, our punishments too severe, our sentences too long."

At least 25 states have implemented sentencing and correctional reforms such as eliminating mandatory minimum sentencing laws, diverting nonviolent drug offenders to treatment programs, and increasing "earned-time" credits - -- essentially time off for good behavior -- available to prisoners, according to a report issued last fall by Families Against Mandatory Minimums.

"Our society has become aware that there are solutions other than mass incarceration. We're not talking about no consequences, but the punishment should fit the crime and the offender," said Laura Sager, executive director of the group.

The reforms have been inspired in many states by budget problems that have brought together fiscal conservatives and liberal reformers. As a result of such alliances, many people hope the issues raised won't be pushed aside by politicians who often fear being portrayed as soft on crime.

"For the first time, people have hope that the discussions might not just die on the argument that nobody cares," said Saltzburg.

New Jersey is one of those states taking a closer look at the way it treats criminals.

In recent months, state Attorney General Peter Harvey has directed his staff to conduct a study of the sentencing laws with an aim toward reducing the prison population. The State Parole Board and Department of Corrections also are looking at ways to cut sentences. And Gov. James E. McGreevey signed legislation, which had liberal and conservative support, to create a 15-member panel to study the fairness of the state's sentencing laws.

In Texas, a number of recent high-profile cases have done little to improve the reputation of the criminal justice system.

In July 1999, 46 people -- 39 of them black -- were arrested in Tulia on drug charges, but authorities found no drugs or money during the arrests. Two dozen people were arrested in Dallas in 2001 on false drug charges; white powder that had been found turned out to be mostly billiards chalk that had been packaged to look like cocaine and then planted by paid informants.

And last year, a longtime resident of Texas' death row was resentenced to three life terms after he became a symbol of the problems with capital punishment because his lawyer slept during his trial.

Some have suggested that the recent wave of reform is partly because of George W. Bush's 2000 run for president, which brought a great deal of outside attention to the Texas system.

"We now have to feel a little less comfortable with ourselves, with our efforts," said state Rep. Harold Dutton, a Democrat from Houston.

Recent years have brought about serious change in Texas.

Last winter, about 500 people converged on the statehouse in Austin to lobby for criminal justice reforms. In the summer, Republican Gov. Rick Perry signed a bill into law that mandates drug treatment for first time, low-level drug offenders.

The state also has introduced parole reforms that make it easier for nonviolent offenders to get out of prison. And in 2001, the Fair Defense Act was passed, mandating the state to establish standards for selecting lawyers to represent people in capital cases.

Still, many say the changes have not gone far enough as the state continues to put many people into prisons with few programs to provide education, drug treatment or job skills.

"We're trying to make more sense," testified John Creuzot, a district judge in Texas, who oversees a drug-court program, which emphasizes treatment over incarceration. "Where we begin to win the war on crime is not by locking people up, but by finding out what their underlying problems are."

On Monday, the bar association is expected to take up the issue of gay marriage. While the group does not intend to endorse same-sex unions, it is expected to vote on a plan to encourage states to write their own marriage rules -- without interference from Washington. The mid-year meeting, which began on Wednesday, wraps up on Tuesday.