How Texas Republicans Chose Treatment Over New Prisons in 2007

In the winter of 2007, a state representative from Plano named Jerry Madden was handed a job he had not asked for. Madden was a Republican, a West Point graduate and an engineer by training, and the Speaker of the Texas House had just made him chairman of the Corrections Committee. He has told the story many times since: he did not know much about prisons, and the instruction he got from leadership amounted to this, that Texas could not afford to keep building them. The state's budget office was projecting that, on current trends, Texas would need thousands of new prison beds within five years, at a cost that would run into the billions. Madden did what engineers do with a system that is producing a bad output. He went looking for where the inputs were coming from. Across the Capitol, the man who would become his partner in the answer had been asking the same question for years, from the other side of the aisle.

In short: Facing a forecast that it would need to build several new prisons, Texas in 2007 instead spent a fraction of that money on drug treatment, mental health beds, probation and parole supervision. A Republican House chairman and a Democratic Senate chairman built the deal on cost and public safety, not ideology. The prison population stopped climbing, crime kept falling, and the state later closed prisons, an outcome that reshaped how conservatives across the country talked about incarceration.

The state that built the most

To understand why 2007 was startling, you have to remember what Texas had been. Through the 1980s and 1990s the state ran one of the largest prison building programs in American history. A federal court case over conditions in Texas prisons, Ruiz v. Estelle, had forced changes in how inmates were housed, and the state's response, combined with tougher sentencing and tougher parole policy, was to build. And build. By the early 2000s Texas held more people in prison than almost any other state, and its incarceration rate was among the highest in a country that led the developed world in incarceration.

The machine had a logic. Probation officers had heavy caseloads and few tools short of revocation. Treatment programs had waiting lists. When a person on probation failed a drug test or missed appointments, the easiest response was to send that person to prison. Parole worked the same way. A large share of new prison admissions were not people convicted of new crimes but people whose supervision had been revoked for violations. Each revocation added to a population that kept outgrowing the beds.

The Legislative Budget Board, the nonpartisan office that writes the state's projections, laid out what it would cost to keep up. The answer was new prisons, on the order of billions of dollars to build and hundreds of millions a year to run. That was the number that landed on Madden's desk.

A chairman who asked where the people came from

Madden's partner was John Whitmire, a Democrat from Houston who had served in the Texas Senate since the early 1980s and chaired its Criminal Justice Committee. Whitmire was no soft-touch caricature; he had supported tough sentencing laws in the 1990s and had a reputation as a pragmatist who knew the corrections system in detail. What he and Madden shared was an interest in the plumbing.

Working with researchers and with the Council of State Governments Justice Center, which provided analysis to states trying to understand their prison growth, they broke down the admissions. Who was coming in, from which counties, for what, and after how long on probation or parole? The answer pointed to a set of choke points. There were too few treatment beds for people with addictions, too few beds for people with mental illness, too few intermediate options between a warning and a prison cell, and long waiting lists for the programs that the parole board itself required before releasing people.

In other words, Texas was paying for prison beds partly because it had not paid for the cheaper things that kept people out of them.

The 2007 package

The resulting plan went into the 2008-2009 state budget. Rather than fund the new prisons, the legislature put a much smaller sum, measured in the low hundreds of millions of dollars rather than in billions, into a network of alternatives. The main pieces were these:

• More residential and outpatient substance abuse treatment beds, both for people on probation and for people in prison who needed treatment before parole.
• Intermediate sanction facilities, short-term lockups where people who broke probation or parole rules could be held briefly instead of being sent back to prison for years.
• Mental health treatment beds and diversion programs.
• Smaller caseloads and more resources for probation departments, along with incentives for counties to use them.
• Expanded drug courts, which pair supervision with treatment and frequent check-ins with a judge.
• Programs aimed at clearing the backlog of inmates who had been approved for parole but were waiting to finish required classes.

The pitch was explicitly about money and outcomes. Madden made the case to fellow Republicans that this was a conservative budget, one that bought more public safety per dollar than concrete and razor wire did. Whitmire made the case to Democrats that it would get people the treatment they had been denied. Governor Rick Perry signed the budget. The legislature also passed a related package of juvenile justice changes that year, after a scandal in the state's youth prisons, but that is a story for another day.

Why the counties mattered

One detail of the Texas system made the deal both harder and more effective. In Texas, probation, which the state calls community supervision, is run by local departments attached to judicial districts, while prisons are run by the state. That split creates a quiet incentive problem found in many states. When a local judge revokes someone's probation and sends that person to state prison, the cost of the prison bed lands on the state budget, not the county's. A county that invests in treatment and supervision bears the cost; a county that sends people to prison passes the cost along.

The 2007 approach tried to change that arithmetic. By sending new money to local probation departments for treatment, smaller caseloads and intermediate sanctions, the state gave judges and probation officers something to do other than revoke. Judges who had complained for years that their only real options were a stern warning or a prison sentence suddenly had a middle path. In effect, the state was paying counties to keep people out of state prisons, which was cheaper for the state than building and staffing more of them.

It is a dry, budget-office kind of insight, and it is easy to overlook in a story that people like to tell as a tale of conservative conversion. But it is the part most worth copying. Many states still have a system in which the cheapest choice for a local official is the most expensive choice for the state and the worst choice for the person being sentenced. Fixing that incentive does not require anyone to change their view about crime or punishment. It only requires lining up the budget with the result everyone says they want.

What happened next

The prison population, which the budget office had projected would keep climbing steeply, leveled off instead. Within a few years the state found that it did not need the prisons it had been told it would have to build. Starting in 2011, Texas began closing prisons, something that would have been unthinkable a decade earlier, and it has closed more since.

Crime did not rise as the population leveled off. Texas's crime rate continued the long decline that much of the country experienced in those years. It would be overclaiming to say the 2007 reforms alone caused that decline, because crime was falling nationwide for many reasons. The defensible claim is narrower and still important: Texas stopped expanding its prisons, and the dire public-safety consequences opponents had warned about did not arrive.

Conservative think tanks noticed. In 2010 the Texas Public Policy Foundation, an influential conservative group in Austin, launched a project called Right on Crime, which carried the Texas argument to other states. Its signers included well-known national conservatives. Over the following years states as different as Georgia, South Carolina, Kentucky and Oklahoma passed their own versions of what came to be called justice reinvestment: study where the prison growth comes from, fund the cheaper alternatives, and reinvest some of the savings.

The skeptics, on both sides

On the right, some prosecutors and law-enforcement groups warned in 2007 that weakening the threat of revocation would make probation meaningless and put the public at risk. That was a reasonable worry. The answer the reformers gave was that a probation officer with sixty cases and a treatment bed to offer is more frightening to a person in active addiction than one with two hundred cases and nothing to offer but a long prison term that the person half expects anyway. Swift, certain and modest consequences, the argument went, change behavior better than rare and severe ones. The results gave that argument support.

On the left, the criticism ran the other way, and it deserves an honest hearing too. The Texas reforms did not end mass incarceration in Texas. The state still holds a very large prison population. The reforms focused on lower-level and drug offenses and left long sentences for violent crimes largely alone. Some advocates have argued that "justice reinvestment" became a way for states to trim at the edges, claim credit and stop. I think there is something to that. A reform that slows the growth of a system is not the same as a reform that shrinks it to a humane size.

But I would put it this way. The Texas deal changed the terms of the debate in the place that needed it most. Once a Republican chairman in the state that built more prisons than almost anywhere could stand up and say that more prisons were a bad investment, it became much harder for anyone else to call the idea soft.

One more thing deserves credit: the willingness to measure. Texas did not just pass a budget and hope. The same budget office that had projected the need for new prisons kept projecting, and when its later forecasts showed the population leveling off, legislators could point to their own state's numbers rather than to an advocate's promise. Reform that can show its work survives the next election.

Two men, two careers

Madden served several more terms in the Texas House and became something of an evangelist for the approach, speaking to legislators in other states about what Texas had done. Whitmire stayed in the Senate for decades and in 2023 was elected mayor of Houston, taking office in January 2024. Neither man changed parties or abandoned his broader politics. That is part of the point. The 2007 deal did not require either of them to stop being who he was. It required them to agree on a problem and to be curious about its causes.

There is a progressive lesson here that does not always get said. The most durable criminal justice reforms in the past twenty years have often come from red states, where Republican legislators had the political cover to make changes that Democrats would have been attacked for. Progressives who care about the outcome rather than the credit have every reason to welcome that, and to keep building relationships with conservatives who share the goal for their own reasons: fiscal discipline, redemption, family, faith.

The people the beds were for

Behind the budget lines were people. A young mother in a rural county with a methamphetamine problem who, under the old system, would have gone back to prison after her second failed test, and under the new one might be sent to a treatment bed instead. A man with schizophrenia who had cycled through county jails for years. A parolee who had been approved for release but could not get into the class the board required. These were not hypothetical. They were the people the analysts found when they traced where the prison growth was coming from.

The reforms did not save all of them. Some failed treatment and went to prison anyway. But the state chose, for once, to spend money on the chance that they would not.

What you can do

The Texas story is mostly a state story, which means the most important decisions are made closer to home than Washington.

1. Find your state legislators, not just your members of Congress. The representatives tool returns your state legislators along with your U.S. representative and senators, with phone numbers, contact forms and their latest votes. Ask your state senator whether your state has studied where its prison admissions come from.
2. Connect with groups doing the work. The organizations directory lists justice reform, legal aid and health nonprofits by state, including groups that run treatment and reentry programs.
3. Look for the cross-party wins. The common-ground tracker shows bills that passed Congress with support from both parties, and criminal justice has been one of the more reliable areas for that.
4. Keep reading. The criminal justice reform topic page collects coverage of sentencing, prisons and reentry, including the state reinvestment efforts that grew out of the Texas example.

Texas did not become a progressive state in 2007. It became a state that asked a better question. That turned out to be enough to change the answer.