As of August 1, [2005] Texas prisons were at 99.67 percent capacity. City and county jails are not faring much better. In Harris County, jails are so full prisoners have been forced to sleep in the bathrooms. This bulge in prison capacity is not due to a surge in crime but rather represents a grotesque and avoidable political failure.

There are many terrible consequences of prison overcrowding. In order to deal with the crisis, prison officials often resort to lockdown. Prisoners sometimes are allowed out of their cells for only one or two hours a day. Family visits are curtailed, as are work programs. There are currently units in Texas prisons that have been under lockdown for more than 400 days, according to the ACLU. Not surprisingly, overcrowding also leads to an increase in prison violence, particularly rape. The number of reported prison rapes in Texas has increased 160 percent since 2000, according to the trade publication Corrections Professional. There are allegations that prison guards sanction rape as a way to control prisonersa task that increases in difficulty with overcrowding. (Current staffing in Texas prisons is at less than 90 percent of what is should be, the ACLU estimates.) Finally, Texas prisons have become a breeding ground for dangerous communicable diseases like Hepatitis C, HIV, staph, and tuberculosis. Cases number in the tens of thousands. The estimate for the number of Hepatitis C cases in Texas prisons alone is 20,000. Prisoners are released back into their communities as walking public health threats. Opportunities to properly isolate and treat these illnesses decrease in situations of overcrowding.

If there is one place in the state that can be singled out as the most dysfunctional in its treatment of offenders, it's Harris County, home to Houston, the fourth-largest city in the nation. "Harris County is the epicenter of all that is wrong with the Texas criminal justice system," says Will Harrell, executive director for the Texas ACLU.

According to the Texas Commission on Jail Standards, overcrowding this summer at the Harris County Jail resulted in as many as 1,900 inmates being forced to sleep on the floor. Harris County provides 65 percent of state jail felons sentenced to county jails in Texas, according to the ACLU. No other county in Texas locks away as many felons who could otherwise be put in treatment programs. It's a problem legislators thought they had solved both at the local and state level until they ran into activist judges and Governor Rick Perry.

In 2003, the Lege passed House Bill 2668, which requires that those without prior felonies who are convicted of a state jail felony - the lowest level of felony in Texas - for a nonviolent offense of possession of a small amount of drugs be placed into a community supervision and treatment program. But loopholes in the law allow judges to circumvent this directive and sentence such offenders to a Class A misdemeanor, thereby sending them to county jail for up to one year. Another way to avoid releasing drug offenders is to set high bonds that they cannot afford to meet. A Houston Chronicle editorial recently called criminal judges in the county who liberally employ both loopholes "activist judges" for not following the legislative intent of the law. Since September 1, 2003, the number of state jail felons sentenced to county jail in Harris County has grown by 188 percent.

The lock-'em-up philosophy of Gov. Perry has guaranteed that either a widespread prison crisis or an expensive prison construction boom is in the state's immediate future. During the regular legislative session that concluded in May, both chambers passed House Bill 2193, a bipartisan probation reform measure that would have lessened overcrowding in prisons by reducing the recidivism that results from minor technical parole violations. Facing vociferous opposition from county prosecutors and a tough primary challenge, Gov. Perry vetoed the measure.