Published By eMail: [email protected] Web Page: www.texindbar.org Texas Independent Bar Association Austin, Texas 78767 Copyright © 2013 Texas Independent Bar Association and the following Commentators Alan Curry John G. Jasuta Doug O’Brien Helena Faulkner Charles Mallin Greg Sherwood Jeffrey S. Garon Gail Kikawa McConnell David A. Schulman Lee Haidusek Angela J. Moore Kevin P. Yeary Editor-in-Chief: John G. Jasuta Clicking a hyperlink (such as a judge’s name) will load the linked opinion It is TIBA’s policy that commentators do not summarize or comment on or document in your web browser. cases in which they were involved. Volume 21, Number 17 ~ Monday, April 29, 2013 (No. 958) Featured Article What to Do with Texas’ Undercrowded Prisons? © 2013 - David A. Schulman and John G. Jasuta RETURN TO TABLE OF CONTENTS According to figures gleaned from the official website site of the Texas Department of Criminal Justice (“TDCJ”), Texas currently has 114 facilities, some operated by private contractors, but the majority operated by the State (see Table “A” attached hereto), which are capable of housing approximately 164,000 inmates. As the current Texas legislative session winds down, “inquisitive minds” wonder if there will be an effort by the Legislature to cut some long terms costs by closing some of the current units. In an article in the Fort-Worth Star Telegram (“Lawmakers Look to Close Private Prison in Mineral Wells”), writer Dave Montgomery detailed discussions in the Senate Finance Committee on the question of whether the State should close the privately run prison in Mineral Wells. Montgomery quoted Sen. John Whitmire, chair of the Senate’s Criminal Justice Committee, and who also serves on the Finance Committee, as saying that the State is “sitting on 12,000 empty beds.” Whitmire, who is in favor of closing the Mineral Wells Unit, said that Texas should close the unit and “take those savings and plow them back into additional public John G. Jasuta holds a B.S.Ed. from the University of Texas at Austin and a JD from St. Mary's University School of Law in San Antonio. He has worked within the prison system as a member of the Staff Counsel for Inmates of the former Texas Department of Corrections, has served as General Counsel to the Texas Board of Pardons and Paroles and as a member of the central staff of the Texas Court of Criminal Appeals for over twenty-four years, rising to the position of Chief Staff Attorney and head of the writ section of that staff. He co-wrote Texas Criminal Writ Practice with Catherine Burnett and Rick Wetzel and has written other articles on habeas corpus and some of the more arcane aspects of that area including time computations under the law. He retired from the State of Texas in September 2003. Contact John at [email protected]. David A. Schulman, one of the founders of TIBA, has been a co-author of this report for many years. He was a member of the Court of Criminal Appeals' staff in 1991-1993, and has been lead counsel in hundreds of direct appeals and habeas corpus proceedings. David reviews every published criminal case from the Court of Criminal Appeals and every Court of Appeals on a daily basis. He has been Board Certified in Criminal Law since 1991 and was the first lawyer to apply for certification in the Criminal Appellate specialization area. He was one of the first attorneys to become Board Certified in both Criminal Law and Criminal Appellate law. See his website at www.davidschulman.com. TIBA’s Texas Law Reporter - Vol. 21, No. 17 - April 29, 2013 - Page 1 safety programs.” The Mineral Wells Unit, which has a capacity of 2,100 inmates, but is currently housing only 1,600, “is one of Mineral Wells' largest employers, with an annual payroll of $11.7 million.” It has been operated since 1995 by the Nashville-based Corrections Corporation of America (“CCA”). Sen. Craig Estes, whose district includes the prison, voted against the closure, because he wanted to “fight for people in my district . .,” demonstrating the politics involved in these issues. This is easy to understand - Montgomery reports that closing the prison would cost Mineral Wells 300 jobs.1 One should keep in mind that, unlike Sen. Estes, Sen. Whitmire will never have to stand for election in Mineral Wells. All that notwithstanding, in March, the Finance Committee voted 11-4 to close the Mineral Wells facility.2 CCA operates more than 60 facilities nationwide, with a total bed capacity of 90,000. In Texas, they operate seven units,3 providing nearly 10,000 of our total capacity of 164,000 beds. CCA also operates five facilities which serve federal law enforcement agencies. One of the voices calling for the closure of the Mineral Wells Unit is Lance Lowry, leader of a Texas union that represents prison guards. He has criticized the company for what he said are abuses and poor management. In an article in the Austin American Statesman this past Wednesday (“Legislators Spar over Downsizing Prisons”), staff writer Mike Ward discussed a move by which a “group of fiscally conservative Republican House members is pushing to keep open two prisons the state might not need . ..” Ward’s article identified the question as being whether the State “should close lockups in Mineral Wells and Dallas to save money.”4 Also mentioned in Ward’s article was an effort by some West Texas lawmakers to have the State purchase the Jones County lock-up, The Empty Jones County Lock-Up situated north of Abilene. The Jones County facility is an 1,100-bed lockup which Ward 1 TDCJ reports the Unit has having 302 employees (see Table “A”). 2 See “Senate Committee Votes, 11-4, to Close Pre-parole Facility;” Mineral Wells Index; March 8, 2013. 3 Bartlett State Jail; Bradshaw State Jail; Bridgeport Pre-Parole Transfer Facility; Dawson State Jail; Lindsey State Jail; Mineral Wells Pre-Parole Transfer Facility; Willacy County State Jail. 4 Ward’s article did not identify the Dallas facility, but, in 2011, a group of legislators unsuccessfully moved to close the Mineral Wells Unit and the Dawson State Jail (2216 beds), which is also operated by CCA. TIBA’s Texas Law Reporter - Vol. 21, No. 17 - April 29, 2013 - Page 2 reports the State “encouraged Jones County to build before the prison population began declining.” The Jones County facility, which cost $35million to build, and was financed with private bonds, was the result of a contract between the State and the County to house inmates. The State backed out of the deal, however, before the unit was finished, leaving Jones County holding the bag. Ward reported this past Saturday, however, that the Texas House voted to purchase the unit from Jones County for $19.5million (“House Votes to Buy West Texas Lockup, Despite Declining Prison Population”). In an article on “Private Prisons in Texas” earlier this year, we reported on two other Texas facilities which are currently on the block. The Bill Clayton Detention Center, in Littlefield, has a capacity of 383 inmates, and is for sale for $5million (“Now You Can Buy A Prison In Texas For $5 Million”). The Joe Corley Detention Center in Conroe, which has a capacity of 1288 beds, is for sale for $55million (“Multiple Firms Show Interest in Corley Facility”). With all these facilities in-flux or for sale, we are questioning the wisdom of closing or not buying these relatively new facilities, the oldest of which is less than 20 years old, when we continue to house inmates in several very old facilities. Texas currently houses more than 10,000 male inmates in eleven facilities built prior to 1920. We begin our thoughts by discussing those over-aged units.5 The Walls Unit - Huntsville The Huntsville or “Walls” Unit is the oldest unit in the TDCJ system, having been opened in 1849 as the “Texas State Penitentiary.” The first three prisoners arrived at the unit in October of that year.6 As anyone who has visited the unit will tell you, it is kept in pretty good shape, especially given its age. An exception is the “original cell block,” which has been closed for a long time. The Huntsville Unit has long served as the administrative headquarters of Texas’ prison system. According to the Texas State Historical Society, the superintendent and the other executive officers worked in the prison, and all of the central offices of the system's departments and all of the permanent records were located in the prison.7 5 Not to be confused with the Rufus Duncan facility in Diboll, which houses 275 male inmates, and is designated as a “GF” or “geriatric facility. 6 See “Correctional Institutions Division” - on the TDCJ website. 7 See “Texas State Penitentiary at Huntsville” on the Society’s website (“www.tshaonline.org). TIBA’s Texas Law Reporter - Vol. 21, No. 17 - April 29, 2013 - Page 3 Texas’ execution chamber is at the Huntsville Unit. Until 1923, executions were a county function.8 Texas began using the electric chair (“Old Sparky”), and, between 1924 and 1964, more than 350 inmates were executed by electrocution.9 Texas has utilized “lethal injection” since 1982, and TDCJ lists nearly 500 “Executed Offenders” since that time. The Wynne Unit10 is our second oldest unit, having become part of the prison system in 1883. Although there is still a farming operation, the original buildings are long gone. They were replaced with a “spoke and wheel” design building in 1939.11 In the 1970s, the unit had only 17 day shift prison guards to oversee its 2,600 prisoners,12 with most of the “security” left to “building tenders,”13 inmates (often burly) used to guard the other prisoners.