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V. Incarceration

Texas’ criminal justice system has three distinct parts. Undocumented immigrants who commit crimes affect all of them:

  • law enforcement and criminal prosecution—municipal police, county sheriffs, the Texas Department of Public Safety, district attorneys’ offices and technical investigative organizations such as crime labs;
  • criminal trial and appeals—the criminal trial and appeals court system, including public defenders, the jury system and other court procedures; and
  • corrections—the system of incarceration and parole, including prisons, jails, and parole boards and the capital punishment apparatus.

Many elected officials including state governors and U.S. congressmen argue that the federal government should bear all the cost of capturing, prosecuting and housing undocumented immigrants who commit criminal offenses.[39] Under the Violent Crime Control and Law Enforcement Act (Public Law 103-317, or the Crime Act of 1994), the federal government authorized $1.8 billion over six years to reimburse states and local jurisdictions for criminal justice costs associated with undocumented immigrants.

This act also established the State Criminal Alien Assistance Program (SCAAP), which provides partial reimbursement to states and local jurisdictions for housing criminal aliens.[40] The federal government limits SCAAP reimbursements to costs incurred related to undocumented immigrants who are convicted of felonies or multiple misdemeanors. SCAAP awards are based solely on a jurisdiction’s costs for correctional officers, the number of “eligible” undocumented immigrant offenders and the number of inmate days involved. No other costs are included in the calculation of SCAAP awards.

Two other federal grants partly reimburse local jurisdictions for costs related to undocumented criminals: the Byrne Discretionary Grant and Community Oriented Policing (COP). One of the purposes of the Byrne Grant is to promote projects that are multi-jurisdictional or multinational in scope.[41] COP gives money directly to local jurisdictions including communities along the U.S.-Mexico border to boost the police presence at the community level.

State Costs

Noncitizens who commit crimes in Texas are prosecuted and punished in the same way as U.S. citizens; after serving their sentences, however, some may be deported back to their home countries. This can apply both to documented and undocumented immigrants, depending on the severity of their crimes.

The Texas Department of Criminal Justice (TDCJ) operates a joint program with federal Immigrations Customs and Enforcement (ICE) to identify criminal aliens incarcerated in Texas, begin deportation proceedings against them while they are incarcerated and deport them after they serve their state prison sentences.

Deportation can occur only after completion of the inmate’s sentence. The process begins, however, when the inmate is evaluated at one of TDCJ’s intake sites after being sentenced and transported from the local county jail to TDCJ. The simplified process is as follows:

  • TDCJ identifies foreign-born offenders during intake.
  • TDCJ notifies ICE that the offender claims foreign birth or citizenship or that TDCJ suspects foreign birth or citizenship.
  • ICE interviews the offender and may ask TDCJ to hold the offender upon release.
  • ICE is notified when the offender’s release is pending and assumes custody of the offender upon release, pending federal deportation proceedings.[42]

As of March 31, 2006, TDCJ had a total population of 151,852 inmates. TDCJ does not have an accurate count of undocumented immigrants held in its facilities, but has asked ICE to review its records and provide this number.

Of the total incarcerated in state jails and prisons in March 2006, 11,514 claimed to have been born in a foreign country and 10,280 claimed that they hold foreign citizenship. These claims are based on TDCJ’s intake interviews and records forwarded with the prisoners and are subject to investigation and verification by ICE.

ICE had issued detainers (requests to detain) for 6,541 prisoners as of March 2006. Due to ICE staffing shortages, however, ICE has been unable to interview all inmates and investigate them to verify their immigration status; an undetermined number of undocumented offenders may be issued a detainer at a later date. ICE had final orders of deportation in place for at least 3,018 inmates as of March 2006, although both TDCJ and ICE say this number is inaccurate and probably low.[43]

Under current procedures, ICE provides TDCJ with information on detainers for male prison inmates only. ICE does not report figures for females in prison units or for both male and female offenders in state jails (Exhibit 11).

EXHIBIT 11
Noncitizens Incarcerated in the Texas Department of Criminal Justice, March 31, 2006

Total TDCJ Population 151, 852
Offenders Claiming Foreign Place of Birth 11,514
Offenders Claiming Foreign Citizenship 10,280
Offenders with ICE Detainers 6,541
Offenders with Final Orders of Deportation 3,018

Source: Texas Department of Criminal Justice.

The process for releasing undocumented immigrant offenders varies for different types of offenders and facilities, which is one reason for the lack of accurate statewide data. For example, female Institutional Division offenders are released from Gatesville and processed by the San Antonio ICE office. State jail offenders are released from the Lyncher State Jail and processed by the Houston ICE office.

The vast majority of TDCJ offenders are males housed by the Institutional Division (ID), which administers the state’s traditional prisons. TDCJ transfers male ID offenders who require a deportation hearing to a joint state/federal facility at Huntsville’s Goree Unit under the Institutional Removal Program.[44] This process is geared to save money and ensure the deportation of eligible criminal aliens; it is based on a previous recommendation by the Comptroller’s Texas Performance Review program.

TDCJ releases inmates who need a deportation hearing directly into federal custody. The federal government maintains detention facilities and a courtroom next to the Goree Unit and court proceedings are held via teleconferencing with a federal judge located in Houston. TDCJ provides legal counsel for offenders who lack it.

Deportation includes several types of proceedings. Stipulated removal occurs when the alien voluntarily concurs with ICE’s allegations and agrees to waive a hearing before an immigration judge. The federal immigration judge signs the order but the alien need not be present. Reinstatement of a removal order occurs when an alien illegally reenters the U.S. after having been removed before. No hearing is required for deportation in such cases. Administrative removal applies if the offender has not been admitted to the country legally and has been convicted of an aggravated felony, and a hearing is needed for a judge to determine the facts and reach a decision.[45]

Comptroller employees visited the Goree Unit in Huntsville in May 2006 to gather information about the Institutional Removal Program. They met with both TDCJ and ICE staff, who explained the program and provided some of the information used in this report. The Comptroller team reported that TDCJ staff members discussed aggregating all joint TDCJ/ICE operations at the Goree Unit to further streamline the process and save money.

Federal reimbursement

The state of Texas receives partial reimbursement for costs associated with incarcerating illegal aliens from the U.S. Bureau of Justice Assistance’s State Criminal Alien Assistance Program (SCAAP). SCAAP reimburses costs only for undocumented aliens who have been convicted of a felony or two or more misdemeanors and have been incarcerated for at least four consecutive days. The key factor is whether the individual was born outside the U.S. and has no reported or documented claim to U.S. citizenship. SCAAP reimburses costs only for a portion of correctional officer salaries and is based on estimates of incarceration days of both known and suspected illegal immigrants.

Texas will receive $18.6 million in SCAAP money to partially offset its costs in 2006. This is up from $17.1 million in 2005, but down sharply from earlier years, when Texas received about $34 million annually. Congress has cut the appropriation level in half, affecting all states and local jurisdictions.[46]

The outlook for federal SCAAP funding remains uncertain. The Bush administration’s proposed federal fiscal 2007 budget recommended eliminating SCAAP, calling it no more than a form of revenue sharing and saying that the program has not demonstrated results. Meanwhile, various elected officials across the U.S. have called for more than doubling the current federal appropriation from $405 million to $850 million, saying the federal government has not lived up to its obligation to stop illegal immigration and that locals are bearing the costs.[47]

State Fiscal Impact

As of June 2006, TDCJ did not have an exact count of the number of undocumented immigrants among its total population of 151,741. TDCJ staff members are investigating this question at the request of the TDCJ board chair and expect results by Winter 2006 at the earliest. Because of inconsistencies in various computer databases, ICE is expected to review thousands of files manually if necessary to obtain an accurate count.

The Legislative Budget Board reports that TDCJ’s most recent cost per day per inmate is $40.06.[48] According to TDCJ, illegal aliens are distributed throughout the system, so that this particular subset of inmates should not reflect any different costs for housing or meals.

The lack of accurate data on the number of undocumented offenders in Texas prisons makes it difficult to estimate associated costs, but both the U.S. Government Accountability Office (GAO) and TDCJ have made some estimates. GAO has estimated that Texas spent $130 million to house SCAAP criminal aliens in 2002. GAO multiplied the average daily cost of housing inmates in Texas prisons by the number of days criminal aliens reimbursed under SCAAP were incarcerated in Texas prisons. Federal reimbursements amounted to $15 million, or 11.5 percent of costs. GAO estimated that SCAAP payments represented 25 percent or less of the total cost of incarcerating criminal aliens in the other four large states they evaluated in their 2005 study.[49]

Using a similar approach, TDCJ estimated that incarcerating undocumented immigrants cost the state $132,377,509 in 2005, in response to a request from the Texas Office of State-Federal Relations.[50] Using a similar method and data provided by TDCJ, the Comptroller estimates costs for fiscal 2006 at $130.6 million. This total was derived by multiplying the cost per day ($40.06) by the number of days undocumented offenders were incarcerated in Texas prisons as estimated by TDCJ (3,259,818).[51]

This implies that on average there were 8,931 undocumented offenders in TDCJ at any one time during fiscal 2006. TDCJ reported that there were 13,006 unique offenders incarcerated at some point in 2005 that had or were suspected to have had no claim on citizenship. These persons may have been incarcerated one or more times during the period.

Local Costs

Texas’ criminal justice system is based on cooperation and interaction between the state, local and federal governments. Local governments are the front line in the fight against crime, and they face the heaviest financial burden.

Counties are responsible for many aspects of local law enforcement, detention, adult and juvenile prosecution; adult and juvenile indigent defense; lower courts (for misdemeanors); district or superior courts (for felonies); court clerks; adult probation; and juvenile probation and detention.

Each county sheriff’s department is responsible for the operation of county jails, criminal investigations, arrests of criminal offenders, warrants and civil papers, and the provision of bailiffs for all state courts. Texas counties have county and district attorneys as well as county and district clerks and elected constables. Each of these various offices can incur a cost whenever an undocumented immigrant commits a crime.

The district attorney (DA) represents the state in felony actions and criminal misdemeanors in county courts at law and justice of the peace courts. Most DAs serve a single county, although some serve more than one (typically in the case of rural areas). County attorneys try misdemeanors and juveniles while district attorneys try felonies.

Texas county courts at law hear both criminal and civil cases. Justices of the peace have original jurisdiction in Class “C” misdemeanor criminal cases subject to fines of up to $500.

Given available data, estimating the cost of undocumented offenders to Texas counties is not a simple matter. A few studies have attempted to quantify the cost to specific jurisdictions. In the mid-1990s, two studies examined the cost of illegal immigration on Texas, one by the Urban Institute and another by Dr. Donald Huddle of Rice University. Both studies examined the state cost of undocumented immigrants in response to a push by state officials to receive federal reimbursement for these costs. Neither study, however, examined costs to local units of government.[52]

Recently, GAO published a report examining costs in five states and five large counties that receive SCAAP funding. Harris County was among the five large counties reviewed. This study, however, included only costs related to county sheriff’s offices. Using costs per day provided by these offices, GAO estimated that SCAAP awards cover between 7 percent (Maricopa County, AZ) and 25 percent (Los Angeles County, CA) of the costs reported.

According to GAO, SCAAP covered about 20 percent of the Harris County Sheriff’s office in 2003.[53] While Harris County’s correctional salaries increased from slightly more than $76.4 million in 2003 to almost $109 million in 2005, their SCAAP award remained virtually unchanged. In 2003, Harris County received $2,693,979; in 2005, two dollars less—$2,693,977. The percent of incarceration-related costs covered by SCAAP funds appears to have declined between 2003 and 2005.

In federal fiscal 2005, 95 Texas counties received almost $7.9 million in SCAAP funds.[54] Using the method employed by ICE and the Federal Bureau of Justice Assistance to calculate a cost per inmate day, the Comptroller’s office divided the reported correctional officer salaries by total inmate days reported for all offenders regardless of their immigration status.

The Comptroller then multiplied the cost per day by the number of ICE and “unknown” inmate days to arrive at a cost per undocumented immigrant offender related to correctional officer salaries of $24.5 million.

The Comptroller examined 2005 approved budgets for 15 of the 95 Texas counties that receive SCAAP funds. These 15 counties received about 88 percent of the 2005 SCAAP funds awarded last year. Salaries account for about 50 percent of county sheriff office budgets.[55] Thus costs related to salaries were doubled to arrive at a cost estimate for county sheriff’s offices.

Exhibit 12 indicates that Texas sheriff’s offices spent about $49.1 million for undocumented immigrant offenders in 2005.

EXHIBIT 12
Estimated Costs to County Sheriff’s Offices for Undocumented Offenders, 2005

County SCAAP Award 05 Total Salaries Inmate Days (Total) Cost Per Day ICE Inmate Days ICE Inmate Costs Unknown Inmate Days “Unknown Inmate” Costs Costs Sheriff’s Salaries Only Total Costs Sheriff’s Ofc.
Bexar $547,366 $27,883,631 1,425,272 $19.56 11,065 $216,473 90,491 $1,770,341 $1,986,814 $3,973,628
Brazos $87,090 $3,613,269 163,410 $22.11 3,583 $79,226 10,207 $225,694 $304,920 $609,840
Cameron $29,936 $4,237,531 370,486 $11.44 616 $7,046 8,989 $102,814 $109,860 $219,719
Collin $303,305 $9,367,485 263,562 $35.54 5,429 $192,957 25,067 $890,928 $1,083,885 $2,167,769
Dallas $636,166 $48,828,400 2,265,666 $21.55 14,850 $320,039 91,496 $1,971,872 $2,291,911 $4,583,822
Denton $163,183 $7,929,953 327,021 $24.25 3,679 $89,212 20,493 $496,936 $586,148 $1,172,297
El Paso $357,084 $33,530,172 878,127 $38.18 20,833 $795,482 8,828 $337,086 $1,132,568 $2,265,136
Fort Bend $118,802 $4,981,686 251,158 $19.83 2,919 $57,898 18,684 $370,595 $428,493 $856,985
Galveston $67,131 $4,688,584 240,508 $19.49 1,577 $30,743 11,052 $215,453 $246,196 $492,392
Harris $2,693,977 $108,459,258 2,839,476 $38.20 61,077 $2,332,954 186,630 $7,128,693 $9,461,646 $18,923,292
Hidalgo $714,808 $7,831,155 410,487 $19.08 8,271 $157,792 129,367 $2,468,027 $2,625,819 $5,251,638
Tarrant $403,123 $24,801,490 1,262,382 $19.65 11,490 $225,739 62,126 $1,220,563 $1,446,303 $2,892,605
Travis $658,636 $41,826,681 929,068 $45.02 9,106 $409,953 43,167 $1,943,380 $2,353,333 $4,706,665
Webb $64,069 $4,422,071 234,797 $18.83 3,537 $66,614 8,263 $155,622 $222,236 $444,473
Williamson $107,402 $4,685,525 204,094 $22.96 2,514 $57,716 8,263 $189,699 $247,415 $494,830
Total $6,952,078 $337,086,891 12,065,514 $27.94 160,546 $5,039,843 723,123 $19,487,704 $24,527,546 $49,055,092

Source: RH2 Consulting, Inc.

This, however, tells only part of the story. As noted above, other county offices incur costs related to handling undocumented offenders.

In 2000, the U.S./Mexican Border Counties Coalition (U.S./MBCC) commissioned a study to estimate criminal justice costs to county and municipal governments along the U.S.-Mexico border. The researchers completed detailed examinations of county budgets and cost information, fielded a survey and conducted in-depth interviews with county officials and relevant county staff to develop an estimate of the fiscal impacts to 14 Texas border counties. In addition to sheriff’s offices, they calculated costs to the following offices for each county:

  • District Attorney
  • District Court
  • District Clerk
  • County Attorney
  • Court at Law
  • County Clerk
  • Justice of the Peace
  • Indigent Defense
  • Adult Probation
  • Juvenile Services

They also included an estimated emergency medical care cost, but their estimate included costs for both offenders and non-offenders who are undocumented immigrants. The Comptroller’s report includes a separate calculation estimating Texas health care costs for undocumented immigrants, so these costs were subtracted from the U.S./MBCC estimate.

The U.S./MBCC estimated that the cost to these 14 border counties was approximately $21.5 million.[56] Of that amount, sheriff’s offices accounted for approximately 60 percent of expenditures for undocumented immigrants. Applying this ratio to the figure calculated for sheriff’s office costs produces an estimate of $81.7 million for costs related for processing and incarcerating undocumented immigrant offenders for the 15 highest SCAAP grant recipients.[57] These 15 counties received 88 percent of the 2005 SCAAP money awarded to Texas counties; $81.7 million divided by 0.88 produces an estimated total cost of $92.9 million.

This figure represents a conservative estimate, as the SCAAP grantees represent 95 of Texas’ 254 counties and 87 percent of the state’s population. Some of the remaining counties also may incur criminal justice costs related to the processing and incarceration of undocumented offenders. For example, five of the 14 border counties included in the U.S./MBCC study did not submit SCAAP applications in 2005.

Total estimated costs for education, health care and incarceration are detailed in Exhibit 13.

EXHIBIT 13
Summary of Estimated State Costs Associated with Undocumented Immigrants
(Fiscal 2005)

Education -$967.8
Healthcare -$58.0
Incarceration -$130.6
Total -$1,156.4
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