Tougher Than the Rest: No Criminal Justice Reform “Miracle” in Texas
But for all the hype, Texas remains “more or less the epicenter of mass of incarceration on the planet,” according to Scott Henson of “Grits for Breakfast,” the indispensable blog on crime and punishment in Texas. Other states have far surpassed Texas in reducing the size of their incarcerated populations and in providing safer and more humane lockups that are not such blatant affronts to the Eighth Amendment’s prohibition on cruel and unusual punishments.
About one-quarter of a million people are incarcerated in jails and prisons in Texas — more that the total number of prisoners in Germany, France, Japan, and the United Kingdom combined. If Texas were a country, its incarceration rate would rank eighth in the world, just behind Oklahoma and six other Southern states.
If you add up all the people in prisons and jails and on probation, parole, or some other form of community supervision in Texas, it comes to over 700,000 people. That amounts to about one out of every 30 adults in the state. That’s enough to fill a city the size of El Paso. Only five other states have higher proportions of their residents under state control.
Texas operates some of the meanest and leanest prisons and jails in the country. If you have served time in the Lone Star State, you likely know what “Texas tough” means. Two meals a day on weekends during budget shortfalls. Cellblocks without air-conditioning, fans or even enough water to drink in triple-digit heat. Understaffed, overwhelmed, and unsafe lockups in isolated rural areas.
The origin story of the so-called Texas “miracle” in criminal justice reform dates back to 2007 when legislators decided against spending an estimated $2 billion on new prison construction to accommodate projections that the state would need an additional 17,000 prison beds by 2012. Instead, lawmakers enacted modest changes in probation and parole to divert some people to community supervision. They also restored some funding for substance abuse and mental health treatment that had been slashed a decade earlier.
Champions of the Texas “miracle” have portrayed the 2007 measures as a decisive turning point that spurred major drops in the crime rate and incarcerated population that saved taxpayers billions of dollars. Although the 2007 changes may have headed off a surge in new prison construction, they did not spark a major contraction of the penal system or in state spending on corrections. Nor did they propel a large drop in crime rates, which had been steadily falling in Texas and in much of the United States since the mid-1990s. Nonetheless, lawmakers, public officials, policymakers, advocates, and the media in Texas and across the country extol the Lone Star State’s record on criminal justice reform. This bipartisan haze has obscured the state’s actual record in reducing the number of people under state control and in fostering a safe, humane criminal legal system that is respectful of human dignity.
As the Texas District and County Attorneys Association (TDCAA) recently observed, “‘criminal justice reform’ is almost too broad a topic to mean much nowadays.” A close look at Texas’s actual record reveals that the state has been a laggard, not a leader, in dismantling the carceral state.
Numerous criminal justice reform proposals — none of them radical — have been beaten back in the Texas legislature since 2007, thanks to the fierce opposition of the TDCAA, the bail industry, the for-profit prison sector, police unions, and individual legislators, some of whom have been hailed as criminal justice reform crusaders. Furthermore, public officials and policymakers in Texas have not availed themselves of the potent discretionary powers they possess — including greater use of executive clemency, parole, and compassionate release — to reduce the prison and jail population and improve the conditions in penal institutions.
In anticipation of the January 2021 session of the state’s biennial legislature, the TDCAA tweeted that lawmakers had proposed dozens of new criminal and penalty increases. The powerful organization of Texas prosecutors quipped, “Some things never change,” followed by a shrug emoji.
Who Counts?
Claims that Texas has been a model of criminal justice reform are based on a highly selective reading of incarceration figures and trends that does not fully account for everyone who is under lock and key in Texas. These claims also rest on crediting the 2007 legislation rather than other more significant factors for the slight decline in the number of incarcerated people. Specifically, emphasizing trends in the number of people in state prisons rather than in the total number of people confined in state prisons and county jails paints a rosier picture. So, too, does relying on official figures from the Texas Department of Criminal Justice (TDCJ), which undercounts how many people are locked down under its authority, rather than the yearly state-by-state figures on the number of people confined to state prisons compiled by the U.S. Department of Justice’s Bureau of Justice Statistics.
Tracking the total number of incarcerated people is more of a shell game in Texas than in many other states. As part of the 2007 measures, the state increased the number of prison beds — it just did not call them that. Texas legislators expanded the number of beds in locked-down facilities designated for substance abuse treatment. They also increased the use of “intermediate sanction facilities” (ISFs), which are de facto prisons where parole violators are confined, typically for a few months, for technical violations, such as a failed drug test. “The dirty little secret is we built about 4,000 beds, but we made them short-term substance-abuse facilities and after-care in communities,” Republican Jerry Madden, a state representative at the time who was a key architect of the 2007 measures, told the press. “Those are lockup facilitates. They’ve got razor wire,” concurred Democrat John Whitmire of Houston, the longest-serving senator in the Texas legislature and the other leading architect of the 2007 legislative package.
State and federal figures differ considerably because the TDCJ excludes from its state prison counts thousands of people confined under its authority to local jails, substance abuse treatment facilities, and ISF’s. But even using the TDCJ’s narrower definition of who counts as an inmate in a state prison, the drop in the state prison population has been modest. In 2007, the Texas Department of Criminal Justice reported 152,661 people in state prisons. In 2019, it reported 142,619 – a drop of just 7%, or about 10,500 people, over a dozen years. This averages out to a decline of about 17 people each week in the Texas state prison system, which numbered more than 100 facilities over this period.
If we use the U.S. Department of Justice’s more comprehensive figures of who counts as a state prisoner and if we include county jail populations, Texas’s reform record looks even thinner. Between 2007 and 2019, the total number of people held in state prisons and county jails in Texas fell from about 233,000 to 225,500. This tiny 3% drop of 7,500 people amounted to a decline on average of just 12 people per week — or fewer than two people each day — across the hundreds of jails and prisons in Texas during these dozen years.
An examination of trends in the incarceration rate — rather than the year-to-year totals in the number of people in prison and jail--paints a more favorable picture. Between 2007 and 2018, the incarceration rate in Texas fell from about 900 per 100,000 people to about 750 per 100,000 people, a decline of about 17%. But it is hard to credit the 2007 measures for this drop. The incarceration rate had already been falling for several years prior to 2007 after reaching a high plateau of about 1,000 per 100,000 residents between 1995 and 2000. The ongoing decline was largely due to several factors that pre-date the 2007 reforms, including the state’s booming population, its declining crime rate, and an increase in releases by the parole board.
The onset of the COVID-19 pandemic spurred an epic contraction of the incarcerated population in Texas, but it is not clear if that drop will be sustained. Between March and September last year — the first six months of the pandemic — the state prison population declined by 21,000 — or about twice the total drop for the previous dozen years. The Texas Criminal Justice Coalition, an advocacy group, attributed the decrease to factors directly related to the pandemic, including plummeting crime rates, declining activity in felony court due to emergency restrictions, and a backlog of sentenced defendants in county jails waiting to be transferred to state facilities. The TCJC warned that the decrease might be short-lived. Indeed, in October the state prison population began rising again.
As for the county jail population, it plummeted in the first three months of the pandemic but then began to rise steadily most months thereafter. In its latest biennial budget request, the TDCJ cited official projections that the number people incarcerated in state prisons and serving parole and felony probation would remain steady over the next five years.
As a recent Vera Institute of Justice report cautioned, using statewide trends in incarceration rates and the number of people incarcerated “as the measure of success can mislead observers into viewing the ‘era of reform’ in too rosy a light.” In Texas, as in dozens of other states (both blue and red), incarceration rates are slowing or declining in urban areas while rising in rural communities, even though rural areas tend to have much lower crime rates.
Furthermore, while the number of incarcerated men in Texas has inched downward, the number of incarcerated women has continued to grow, as it has in many other states. Since 1980, the number of women held in Texas state prisons has ballooned by nearly 1,000%. Its female incarceration rate now ranks fifteenth from the top in state-by-state rankings.
How Texas Measures Up
In 2007, Texas’s total incarceration rate of about 900 per 100,000 residents ranked sixth in the nation. By 2018, the state had fallen just one spot to be tied with Arizona for seventh place. Even if we take the TDCJ’s 7% drop in state prisoners as the benchmark, Texas lags behind other states in reducing its state prison population. Between 2007 and 2018, the national average for the states was an 8% decline. Other large states, notably New York (a decline of 21%) and California (a drop of nearly 25%), dwarf what Texas has accomplished.
Faced with these numbers, champions of the Texas model suggest that the Lone Star State’s criminal justice record should be graded on a curve when measured against what New York, New Jersey, California, and other bicoastal blues have achieved. Zealots of the Texas model have exploited the widespread myth that criminal justice reform is so much harder to engineer in Texas because it is a deep red state in the heart of Dixie, saddled since the days of the Alamo with an unforgiving, eye-for-an-eye political culture of frontier justice. This mythology has diverted attention away from closely examining the specific political factors that spurred the prison boom in Texas and the ones that stand in the way of anything more than cosmetic reform today.
For all the talk about crimson Texas, the Lone Star State was actually a late entrant in the race to build more prisons, which took off around much of the country in the early 1980s. Until the 1990s, its incarceration rate trailed far behind that of California, Arizona, and much of the South. The 1980s electoral realignment in Texas — not the state’s reputed conservative culture of frontier justice — set the stage for its belated prison boom in the 1990s.
As a rift between the old guard and progressive wing weakened the state’s Democratic Party, the Republican Party became competitive in Texas for the first time in more than a century. Politicians in both parties then sought an electoral advantage by entering the law-and-order race to see who could be toughest on people who ran afoul of the law. Once law-and-order politics were unleashed in Texas, penal hardliners in both parties faced little resistance because they operated in a political system that at the time had low levels of political and civic participation.
In the 1980s when Texas was under federal court order to ease prison overcrowding thanks to the settlement in the 1979 Ruiz v. Estelle case, parole release rates shot up. Once the prison-building spree was at full throttle, the parole board rapidly curtailed parole releases. Release rates for all parole cases plummeted from 79% in 1990 to just 39% in 1993. This drop helped spur a near doubling of incarceration rates for state prisoners in just five years between 1993 and 1998.
The Legislative Record on Reform
Since the purported big bang of criminal justice reform legislation in 2007, Texas has yet to enact any landmark measures to slash the number of people in prison and jail or improve penal conditions. The average sentence length of people incarcerated in state prisons in Texas has remained unchanged at 19 years over the last decade, according to an analysis by the ACLU. Since 2005, the average sentence length for people committed to Texas prisons has increased by 35%. This figure would be even higher if it factored in people who have been sentenced to life or life without parole.
Since 2007, lawmakers have created hundreds of new crimes and dozens of enhanced penalties, including making cheating or lying about the size of a fish caught in a tournament a third-degree felony punishable by up to 10 years in prison to new draconian criminal penalties to stem environmental activism.
As the legislature has busied itself creating new crimes and stiffening penalties, the constitutional right to legal representation for criminal defendants in Texas has continued to erode. Once a pioneer in indigent defense, Texas now lags far behind in providing low-income defendants with adequate legal assistance. The state ranks third from the bottom in state government funding per capita on indigent criminal defense. Texas “exercises almost no oversight of indigent defense, and most counties still administer their programs through an antiquated process rife with conflicts of interest,” according to an investigation by the Texas Observer. It is an open secret that many incarcerated people in Texas state prisons can let themselves out of their cells using simple tools like a bar of soap, a shoelace, or a domino because so many locks are decrepit.
The racial and ethnic disparities in Texas state prisons are below the national average. But this is not necessarily something to boast about or celebrate. Texas has some of the lowest racial and ethnic disparities in incarceration because it has some of the highest incarceration rates not only for African-Americans and Hispanics but also for non-Hispanic whites. The incarceration rate for white people in Texas is extraordinary, surpassing that of any other state. The Prison Policy Initiative calculated that the combined jail and prison incarceration rate for white people in Texas is 768 per 100,000 white residents. This figure would comfortably put the Lone Star State’s incarceration rate for non-Hispanic whites at the top of country-by-country global rankings of incarceration rates, along with nine other states. In short, when it comes to locking people up, Texas is, like many other Southern states, more of an equal opportunity incarcerator compared to states in other regions. (The Prison Policy Initiative’s figure for the total incarceration rate for the United States is considerably higher than that of the Department of Justice Bureau of Justice Statistics or the Institute for Crime and Justice Policy’s “World Prison Brief” because it includes in its calculations all types of carceral facilities--not just state prisons and county jails but also halfway houses, federal prisons, and immigrant detention. Furthermore, its 2014 analysis is based on data from the 2010 census.)
The War on Drugs
The war on drugs rages on in Texas, which has yet to reduce the penalties for even low-level drug crimes, let alone more serious offenses. In 2019, the number of new misdemeanor cases fell to its lowest level in decades. But the number of new felony cases filed in Texas reached an all-time high, thanks largely to the growth in drug possession cases, according to the annual report of the Texas Judiciary.
In the current legislative session, which opens on January 12, Texas lawmakers once again appeared unlikely to enact even modest drug-penalty reductions. In the last session two years ago, the Texas House overwhelmingly approved a measure to lighten up on marijuana offenses. But this bill died in the Senate, thanks to staunch opposition from Republican Lieutenant Governor Dan Patrick, law enforcement groups, and Senator John Whitmire (D-Houston), chair of the Senate Criminal Justice Committee and widely hailed as a top criminal justice reformer in Texas and nationally.
But in 2019, Texas lawmakers unwittingly decriminalized marijuana — sort of — thanks to a measure to legalize hemp and hemp-derived products like CBD that sailed through the legislature. The new law changed the definition of marijuana based on THC content. Many prosecutors stopped pursuing marijuana cases, saying they did not have the technology to test THC content. Police departments got the message, and arrests for marijuana possession plunged.
Texas has lagged behind many other states in embracing harm reduction strategies to address substance abuse problems and to stem the mounting devastation of the opioid epidemic. Until recently, it was one of only about a dozen states — and the only large state — that had no officially sanctioned needle exchange program. Proposals to legalize such programs to stem the spread of HIV/AIDS and other needle borne infectious diseases have repeatedly run aground in the legislature and been thwarted by local DAs. In 2019, 12 years after the legislature cleared Bexar County, which includes San Antonio, to run the state’s first pilot program, the county finally approved funding, thanks to the blessing of Joe Gonzales, the new district attorney. Texas is also one of just five states that does not have a Good Samaritan law that provides some legal protections for people who call for help in the case of an unintentional drug overdose. In 2015, Republican Governor Greg Abbott vetoed a Good Samaritan law that had overwhelming support in the legislature.
Capital Punishment and
“Death by Incarceration”
As Texas was garnering a national reputation as a leader in criminal justice reform, thanks to the hype over the 2007 measures, the state was becoming more punitive by several key yardsticks. Until 2005, Texas was one of the few states that did not have a life without the possibility of parole (LWOP) statute, preferring the death penalty for serious crimes. Since then, Texas legislators have sanctioned LWOP and expanded the list of crimes punishable by it, including certain sexual assaults, as support for capital punishment has waned.
The number of people serving life sentences in Texas has exploded even though serious crime is at its lowest level in decades. As of 2019, more than one out of every 10 state prison inmates in Texas was serving a life sentence or a “virtual” life sentence of at least 60 years. More than 1,200 of them had been sentenced to LWOP, also known as the “other death penalty” or “death by incarceration.”
As the number of life sentences has exploded in Texas, the state has not entirely lost its appetite for capital punishment. Although the annual number of executions is way down in Texas, the state continues to operate the most active death chamber in the United States, by far. Of the country’s 22 executions in 2019, nine were in Texas.
In the last legislative session, Texas lawmakers wrangled with proposals to remedy the state’s procedures for determining whether a defendant is intellectually disabled and therefore ineligible to receive a death sentence. The U.S. Supreme Court had forced this issue in Texas after intervening not once but twice in vacating the death sentence of Booby Moore, who has an IQ of about 70 and had been sentenced to death in 1980. For decades, Moore’s attorneys had argued that sentencing him to death violated the 2002 Atkins v. Virginia ruling that executing intellectually disabled people was cruel and unusual punishment. The 2019 bill was so watered down in the state Senate that capital punishment reformers dismissed it as “worthless.” No measure was enacted. In June 2020, Texas paroled Moore.
The War on Sex Offenses
Just as the war on drugs grinds on in Texas, so does the war on people charged with sex crimes. The hoopla about the “smart on crime” measures enacted in 2007 to stem future prison growth has obscured the draconian measures lawmakers enacted that same year to stiffen what were already tough penalties for sex offenses.
Texas lawmakers acted in the midst of a moral panic unleashed after the body of “Baby Grace,” an unidentified toddler beaten to death, was discovered in a Galveston riverbed in October 2007.
Possessed by what one seasoned criminal defense attorney characterized as a “lynch mob mentality,” the legislature converted some second- and third-degree sex offenses involving children into first-degree felonies with penalties of five to 99 years or life in prison. It also eliminated parole for many of these offenses and made second convictions punishable by a life sentence or even capital punishment. (The following year, a divided U.S. Supreme Court ruled in Kennedy v. Louisiana that imposing the death penalty for the rape of a child was unconstitutional.) Compared to 15 years ago, more people are now serving time for sex offenses than drug offenses in Texas state prisons.
People convicted of sex offenses in Texas face some of the toughest community notification, residency, and registry laws and restrictions in the country. Texas operates one of the country’s most expansive and intrusive registries for people convicted of sex offenses. Nearly 100,000 people — or about 350 out of every 100,000 people in Texas — are listed on the state’s public sex offender registry, a rate well above the national average.
The names and other personal information for all registered sex offenders — not just high-risk offenders, as in some other states — are publicly available in Texas. About 90% of the people on the Texas registry are classified as low-risk offenders, according to the Texas Department of Public Safety. Texas is one of just 10 states that requires children found guilty of a sex crime in criminal or juvenile court proceedings to register, according to a 2013 report by Human Rights Watch.
Juveniles and the Carceral State
On several key indicators, Texas has lagged behind the rest of the country in juvenile justice reform.
After the U.S. Supreme Court ruled that sentencing juvenile defendants to mandatory life sentences without the possibility of parole was unconstitutional, many states, both blue and red, responded by rewriting their sentencing laws to permit minors convicted of serious crimes to receive a parole hearing after serving 25 years or even less. Not Texas, which requires juveniles sentenced to life to serve 40 years before receiving a parole hearing. If current trends continue, they are likely to die in prison. Less than 5% of the people serving life sentences in Texas who are granted a parole hearing are ever actually released.
Texas is one of just three states that still prosecutes all 17-year-olds as adults. Raise-the-age bills have repeatedly stalled in the Texas legislature. Juveniles awaiting trial as adults in Texas jails are routinely kept in long-term isolation with no access to education programs and little human contact.
In 2012, the state was forced to shut down its juvenile detention agency and transform its juvenile justice system after a media exposé documented widespread physical and sexual abuse of youths that state officials were aware of but had not addressed. Violence and abuse continue to plague state juvenile facilities despite the overhaul.
Texas has been exceptionally punitive to juveniles in other ways. A comprehensive 2011 study revealed that 60% of all public school students in Texas had been suspended or expelled at least once between the seventh and twelfth grade. Until recently, Texas treated truancy as a criminal matter. Even though Texas finally ended criminal penalties for truancy in 2015 and eliminated some of the most egregious aspects of its punitive “ticketing” system that sent many children and teen-agers to criminal court for minor incidents or offenses at school, its school-to-prison pipeline has not been ruptured. Harris County, which includes Houston, routinely sends hundreds of youths to juvenile lockups each year — often for weeks at a time — for minor probation infractions, such as curfew violations, school absences, and failed drug tests.
Debtors’ Prisons
In the Lone Star State, you can be arrested, booked, and jailed for nearly any violation, including most misdemeanor traffic offenses, such as a broken tail-light or failure to signal. Each year hundreds of thousands of people languish in Texas jails because they are unable to post bail or to pay off fines and fees for offenses that are technically not punishable by jail time.
Class C misdemeanors — the lowest-level offenses in Texas — routinely result in a “cascade of unconstitutional and devastating consequences,” according to a report by the ACLU of Texas. People unable to pay off their traffic tickets or other Class C fines quickly end up in a Kafkaesque maze that almost guarantees that they will receive even more tickets, fines, and penalties. Many of them eventually end up in jail, incarcerated without a hearing, legal representation, or consideration of their ability to pay.
Bland Act Weakened
The national uproar over the July 2015 death of Sandra Bland, a 28-year old African-American woman who died in an isolation cell in a rural Texas jail three days after being apprehended in a controversial traffic stop for failing to signal a lane change, shined a scorching light on Class C misdemeanors and the criminal legal system in Texas. Bland was jailed after being charged with a low-level misdemeanor that carries no jail time if found guilty, because she was unable to raise $515 to pay a bail company to post bond. Her hanging death was ruled a suicide.
Two years after Bland’s death, lawmakers finally enacted the Sandra Bland Act in 2017. Under fierce pressure from law enforcement groups, legislators stripped provisions from the original bill to restrict police arrests for Class C violations and address racial profiling in traffic stops. The final version of the Bland Act was largely a mental heath bill.
In a separate measure enacted in 2017, Texas legislators required courts to provide alternatives to jail for people who cannot afford to pay off their fines and fees. The number of people jailed due to legal debt dropped substantially, but it still totaled half a million people as of 2018.
In 2019, lawmakers amended the 2017 legislation in another effort to compel recalcitrant local judges to waive Class C fines for indigent people. That year, in a bitter battle, the Combined Law Enforcement Association of Texas (CLEAT), the state’s largest police union, defeated yet another attempt to impose limits on arrests and jail time for Class C misdemeanors.
As the Texas legislature goes into session this month, banning arrests for Class C offenses is once again on the agenda, thanks to the George Floyd Act, introduced by members of the Texas Legislative Black Caucus. This measure also would ban chokeholds, require police officers to intervene in instances of excessive force by colleagues, and strip officers of “qualified immunity” — a powerful shield that protects them from civil lawsuits.
Reform of Bail and Civil
Asset Forfeitures
To the dismay of some criminal justice reform advocates in Texas, the 2017 Sandra Bland Act did not overhaul cash bail. Texas, whose bail bonds industry is one of the least regulated of any state, has been at the epicenter of the battle against ending cash bail. Texas politicians lead the country in political contributions received from the commercial bail industry, which has close ties to American Legislative Exchange Council (ALEC), the coalition of conservative lawmakers and corporations that the American Bail Coalition once described as its “life preserver.” Despite support from top Democratic and Republican lawmakers, major church groups, and other organizations, proposals to even modestly reform cash bail have floundered in the Texas legislature.
Texas continues to operate one of the most permissive, abusive, and lucrative civil asset forfeitures systems in the country. These seizures of cash and property are a major source of slush funds for police and other members of law enforcement, which have doggedly opposed proposals to curb them.
Wrongful Convictions
To its credit, Texas has emerged as a national leader in preventing and uncovering wrongful convictions and in compensating people who have been exonerated. The state has become the “gold standard in innocence reform,” Michelle Feldman of The Innocence Project told The Texas Tribune. But this was not thanks to the Right on Crime-Smart on Crime coalition.
This bright spot has come from a dark place. Claims of innocence have literally been more of a life and death issue in Texas than anywhere else. Since 1976 when the U.S. Supreme Court reinstated capital punishment with the Gregg decision, Texas has led the nation not only in imposing death sentences but also in carrying them out. As the death penalty capital of the Western world, Texas was poised to become ground zero in the problem of wrongful convictions, thanks to a wave of embarrassing and troubling high-profile exonerations, many of them linked to prosecutorial misconduct, that forced the legislature to act.
In 2001, Texas lawmakers mandated the automatic preservation of biological evidence in felony cases and permitted any convicted person to apply for post-conviction DNA testing. In 2005, the state began funding innocence clinics at several public law schools. Four years later, the legislature enacted the Tim Cole Act, which established increased monetary compensation and other assistance for exonerees. That same year, lawmakers established an investigative panel on wrongful convictions.
In 2017, lawmakers enacted measures to limit the use of jailhouse informants, mandate the recording of police interrogations in cases of serious crimes, and tighten the procedures for conducting police lineups. Although implementation of these reforms has been uneven by police and prosecutors across Texas, the state has made considerable strides in addressing the problem of wrongful convictions compared to other jurisdictions.
At the local level, some district attorneys in Texas have been pioneers in tackling the problem of wrongful convictions. Shortly taking office in 2007 following an upset victory in Dallas County, Craig Watkins — the state’s first African-American district attorney — established the country’s first conviction integrity unit to investigate claims of wrongful convictions. It has since become a national model for other district attorneys.
Parole and Executive Clemency
Except in the area of wrongful convictions, Texas legislators have not been trailblazers in enacting measures that reduce the number of people under state control and that foster safer, less abusive conditions in the state’s jails and prisons. Public officials, policy-makers, and administrators have formidable non-legislative powers to pursue these objectives but they have been generally unwilling to wield them. These include greater use of parole, executive clemency, and compassionate release to reduce the prison population.
The actions of the Texas Board of Pardons and Paroles (TBPP) have been far more consequential in reducing the size of the prison population than the overhyped 2007 reforms. For decades now, the board has acted alternatively as a key accelerator and a critical brake on the state prison population. Incarceration rates peaked in the late 1990s in Texas, before beginning a downward slide that continues to this day, thanks to rising parole release rates, the boom in the state’s population, and the ongoing decline in crime rates. The total number of people in prisons and jails in Texas peaked around 2010 and has generally been falling since then, thanks to a modest uptick in parole approval rates beginning in 2012 that has largely been sustained at about 35% a year since then but falls far short of the 50% or more release rates on the eve of the 1990s prison boom.
Nearly half of all state prison admissions in Texas each year are for revocations of parole or probation, most of them for supervision or technical violations, not new offenses, which is about the national average. As in many other states, Texas imposes far more conditions on people serving probation and parole than it once did. A comprehensive analysis of parole systems across the U.S. by the Prison Policy Initiative gave Texas an F.
Another key discretionary power is executive clemency. But the executive clemency process shows even less life today in Texas than it did 15 years ago. During Governor Rick Perry’s tenure, you could count on two hands how many people received executive clemency in most years. Under his successor Greg Abbott, one hand is generally sufficient.
Texas has hundreds of permanently bedridden inmates and many others who are elderly, gravely ill, and unable to take care of themselves, let alone commit new crimes. But these aged and ailing prisoners are not likely to be granted medical parole, even though the compassionate release laws in Texas have some remarkably liberal features, at least on paper.
Texas Tough
Prisons and jails are tough places to be throughout the United States, but they are tougher than the rest in Texas. On key metrics of the quality of life behind bars — access to health care, staffing, use of solitary confinement, sexual abuse, shackling of pregnant women, oversight — Texas ranks far behind other states. Evidence of inadequate health care was an important plank of the Ruiz lawsuit settled in 1979. Four decades later, the prison health care system in Texas is “teetering on the edge of unconstitutionality” and has been for years because “it is so underfunded,” Michele Deitch, an expert on prison conditions at the University of Texas at Austin, told the press.
The health-care system in Texas prisons dispenses everyday cruelties. Until recently, the TDCJ even refused to provide dentures to people with rotting teeth so they were forced to eat only soft foods. These cruelties are likely to increase as the TDCJ and other state agencies have been asked to cut their budgets as the COVID-19 pandemic has imperiled state revenues.
The dilapidated state of penal facilities in Texas poses another threat to the health and safety of incarcerated people and prison staff. Some prisons in Texas are more than 100 years old. Many penal facilities are in dire need of basic repairs and renovations for such items such as leaky roofs, faulty fire alarms, and antiquated water systems.
About four out of five people in state prisons in Texas are housed in units without air-conditioning. After at least 10 inmates died of heat-related causes in Texas prisons during a record-breaking heat wave in summer 2011, Senator Whitmire, the celebrated criminal justice reformer, told reporters he was not alarmed by their deaths. He also declared that outfitting Texas prison with air-conditioning was “unimaginable.” In 2013, the state’s leading prison guards’ union announced it would support an inmate lawsuit challenging the sweltering conditions in Texas prisons after learning the TDCJ was constructing climate-controlled barns to cool pigs raised on penal farms.
After a federal judge ruled that the conditions at Wallace Pack prison were unconstitutional, the state agreed in early 2018 to install air-conditioning in this geriatric facility. But in summer 2019, attorneys for the men at Pack were back in court, claiming that dozens of them were being kept in uncooled housing, and that TDCJ officials had repeatedly misrepresented and concealed issues related to the oppressive heat conditions. A 2018 report from the Texas House Committee on Corrections characterized the TDCJ’s efforts to address excessive heat problems as inadequate in the face of ongoing litigation regarding other state prisons.
Staffing Shortages
and Lax Oversight
Turnover for prison guards has soared in Texas. Chronic staffing shortages have impaired prison safety, making it even harder to recruit and retain guards. Incidents of major use of force against people incarcerated in Texas state prisons have increased about 50% over the last decade (even though the prison population has declined), likely due to chronic staffing shortages, high staff turnover, inexperienced guards, and the brutally hot facilities in the summer.
Texas jails and prisons operate with little independent oversight. The Texas Commission on Jail Standards has only about four to five inspectors to monitor and annually inspect about 240 public jails. The TCJS does not have enforcement powers, and sheriffs, district attorneys, and other county officials have numerous ways to shield what happens inside local jails from public scrutiny. As for the TDCJ, this state agency has repeatedly succeeded in turning back legislative efforts to create independent oversight even as the scandals and exposés about abuse and horrific conditions pile up.
In a comprehensive self-study released in November, the Texas Commission on Law Enforcement characterized the state’s approach to regulating the police, sheriffs, and guards in county jails as “by and large, toothless.” The report described “a fragmented, outdated system with poor accountability, lack of statewide standards, and inadequate training.”
Texas has one of the strongest reporting laws in the country for deaths in custody. But prosecutors rarely, if ever, bring charges, even in instances of multiple failures to file timely, accurate, and complete reports.
The barriers to investigating deaths in custody are higher in Texas than in many states. Some counties do not record as deaths in custody prisoners who are transferred to outside medical facilities and die there. Some release severely ill people to the streets so their deaths do not draw public scrutiny. Thanks to the so-called dead suspect’s exemption to the Texas Public Information Act, sheriffs, police chiefs, and district attorneys are permitted to withhold information on cases that do not result in a criminal conviction, even after a defendant dies. This loophole is a major impediment to investigating deaths in custody.
Mental Health Issues
The lack of adequate resources for mental health treatment and suicide prevention is a key factor in deaths in custody. Despite a declining county jail population, 2019 was the deadliest year ever for county jails in Texas, with around 130 deaths in custody from suicide and other causes. The actual number is likely much higher. In 2019, suicides in Texas state prisons hit a 20-year high despite a declining prison population.
An exhaustive 2016 University of Texas Law School report on suicides and mental health in Texas jails concluded that these county lockups lacked the “resources, training or will to provide adequate care.” The 2017 Sandra Bland Act sought to remedy some of these issues but Texas continues to lag woefully behind in alternative mental health services and facilities for people who are diverted from jail.
Defendants deemed mentally incompetent have languished in local jails across the state because of the shortage of beds in state mental hospitals in Texas, which ranks 49th among the states in access to mental health care. In 2019, state lawmakers finally agreed to a $450 million plan to construct three new mental health hospitals.
The Texas Jail Project’s database documents numerous instances in which Texas county jails have not complied with the Sandra Bland Act and other state regulations, even in Waller County, the county lockup where she died. A series of Pulitzer Prize-winning editorials in the Palestine-Herald Press in southeastern Texas on conditions in county lockups documented numerousinstances of the use of excessive force, failure to identify or treat severe mental health problems, and “a culture of indifference to human suffering.”
Sexual Abuse in Prisons and Jails
Newsweek and other publications have referred to Texas as the “prison rape capital of the U.S.” because it leads the country in sexual abuse in prison. Almost half of TDCJ facilities surveyed have rates of sexual victimization by staff members and incarcerated people that exceed the national average. In some cases, they are two, three, or even four times higher.
A 2016 report by advocacy groups in Texas documented the state’s “Texas-sized failure” to comply with the federal Prison Rape Elimination Act (PREA). Among other things, the report detailed a culture of “administrative indifference, incompetence, and retaliation.”
Conditions of Confinement
for Women
Higher rates of sexual abuse are not the only reason that Texas prisons and jails are exceptionally tough on incarcerated women. The barriers for incarcerated mothers and fathers to stay in touch with their children are higher in Texas than in many other states, thanks to, among other things, byzantine rules for placing phone calls and the replacement of in-person visits with videoconferencing in many local jails. A 2009 Texas law prohibits shackling women during labor, delivery, and recovery but otherwise permits this practice during pregnancy and for “safety and security” concerns. That year, lawmakers mandated that the TCJS establish minimum standards for the health and housing of pregnant women in county jails. But there is little independent oversight to determine whether county jails meet these minimum standards. A 2016 report by the TCJS documented that many jails, especially those in rural areas, struggle to provide even minimal health care to women, let alone key services like prenatal care and detox.
In 2019, Texas lawmakers approved several measures to improve the conditions of confinement for women in Texas state prisons, but these do not apply to county jails. In the last legislative session, they did not enact any measures that would divert more women from prison in the first place.
All Alone
Over the last 15 years, a national movement to end solitary confinement in the United States has been gaining momentum. Just within the past five years, top prison administrators in a number of states have become outspoken critics of solitary confinement and have sought to reduce its use. But not in Texas.
The Lone Star State lags far behind many other states in restricting the use of “administrative segregation” and ameliorating the conditions of solitary confinement through legislation, court challenges, and voluntary actions by prison administrators.
Texas leads the country by far in the number of people housed for long periods of time in solitary confinement. Nearly 70% of all prisoners in the country who have been isolated for six or more years are housed in Texas state prisons, and nearly half of all U.S. prisoners who have been in solitary for three to six years are held in Texas. Conditions in solitary confinement in Texas “are some of the most deplorable and onerous in the country,” according to a report by the Texas Civil Rights Project.
Recently some states have abolished the practice of automatically assigning death-row prisoners to solitary confinement but not Texas. A 2017 report by University of Texas School of Law described conditions on death row in Texas as harsh, inhumane, and in violation of international human rights norms and standards.
Even relatively short stints in isolation can render people more prone to suicide, psychosis, depression, and other mental disorders. For those with pre-existing mental illnesses, restrictive housing compounds these problems. Denied social contact, in many cases for years, the ability of people housed in extreme isolation deteriorates. Yet until 2015, the TDCJ routinely released hundreds of people from solitary confinement directly to the streets each year without any step-down or transition programs before they completed their sentences.
The Pandemic in Texas
COVID-19 has been a stress test for penal systems throughout the United States and the world, and some have failed more miserably than others. Texas is one of them. The pandemic could finally kill off the myth of the Texas penal reform miracle. In a grim achievement, the Lone Star State may end up leading the nation in reducing its prison and jail population—by releasing a record number of people in body bags.
In the three-phase roll out plans announced last fall for the COVID-19 vaccine, some states prioritized vaccinating incarcerated people and guards. Not Texas. It was one of 10 states that did not include incarcerated people in its roll out plan, which was announced in October. Guards were also left out.
Of the 10 largest penal systems in the United States, Texas has the second highest rate of both COVID-19 infections and deaths among people incarcerated in its state prisons and county jails, according to a report by the University of Texas at Austin. Texas leads by far among state prison systems in staff infections and is tied for second place in mortality rates for staff.
The TDCJ refused to abide by health and safety guidelines issued by the Centers for Disease Control and Protection in March 2020 to stem the spread of the virus in prisons and jails. It went to court in April to defend its right not to provide basic protections at Wallace Pack prison, the geriatric prison at the center of the lawsuit over oppressive heat conditions. Hand sanitizer, the TDCJ insisted, poses a major security risk, even though the state agency could not provide a single instance of an incarcerated person drinking or igniting hand sanitizer — which at least one state prison actually manufactured with the help of unpaid penal labor. The TDCJ prevailed when its case came before a three-judge panel of the Fifth U.S. Circuit Court of Appeals in New Orleans in April, and the U.S. Supreme Court refused to take up the case.
Instead of seeking to release more people and implement all the CDC guidelines, Governor Abbott and the TDCJ ramped up “Texas tough,” imposing a massive lockdown on facilities where COVID-19 was detected. While the TDCJ and other state-level officials resisted releasing incarcerated people to stem the pandemic, some county officials scrambled to reduce the number of people in their local jails. Abbott sought to block local efforts for early release of people held in county jails.
The total county jail population fell by nearly 13,000 people — or about 19% — between March 1 and May 1, 2020. This was a remarkable drop, especially considering that thousands of people were backing up in county facilities as transfers to state prisons were curtailed to reduce spread of the virus. But after May, the county jail population began steadily rising almost every month.
With the onset of COVID-19, the thick shroud that conceals what is actually happening in Texas prisons and jails has become even more opaque as informal channels to the outside world began drying up. Family and media visits, as well as programs run by outside volunteers, have been curtailed or suspended. So have mail deliveries and phone calls.
The Bottom Line
Texas has been a pioneer in how to do mass incarceration on the cheap and to turn prisons and law enforcement into profit-making centers. Today it operates not only the largest penal system in the country but also one of the cheapest and meanest. The elite bipartisan coalition that congealed around Right on Crime was premised on unwarranted expectations in Texas and elsewhere that states and counties would begin closing their jails and prisons because they could not afford not to do so. These expectations rested on misrepresentations or misunderstandings about how burdensome penal costs are to state budgets.
Despite the unprecedented prison boom in Texas and elsewhere, spending on corrections remains a tiny fraction of state spending. The TDCJ’s budget comprises just 3% to 4% of the state’s total budget — or roughly half of what it spends on highways each year.
Faced with powerful political interests demanding drastic cuts in government spending (some of which overlap with the political and economic interests that profit from such an expansive penal system), Texas and other states have made symbolic cuts to their corrections budgets. These cuts do not save much money but do create major hardships for people serving time and their families. For example, the budget shortfall in 2011 prompted the Texas prison system to eliminate lunch for many inmates on weekends (and even ended the long-standing tradition of serving a special last meal for people about to be executed). State Senator John Whitmire, the widely hailed criminal justice reformer, quipped to the media at the time, “If they don’t like the menu, don’t come there in the first place.”
Most years, the TDCJ’s budget continues to hover around $3.3 billion in constant dollars, despite the seven percent drop in the number of inmates in state prisons over the last decade and the closure or idling of 11 TDCJ penal facilities since 2011. This is not surprising. The TDCJ’s health care costs have continued to skyrocket with the rapid aging of its prison population. Furthermore, most prison costs are fixed and not easily cut. Serious savings will only come by shutting down numerous penal facilities and laying off guards and other staff (which typically comprise about two-thirds of prison budgets). States and counties also must avoid the creation of an extensive prison beyond the prison centered on home confinement, elaborate risk-assessment tools, electronic and GPS monitoring, widespread drug testing, and other alternative means of surveillance that the private prison industry has been aggressively investing in and promoting to public officials.
Who Profits?
For decades now, Texas has been at the center of efforts to make the criminal legal system pay for itself — and maybe even turn a profit for state coffers. Texas has been a leader in the push to privatize prisons and penal services and to export the for-profit model in criminal justice and law enforcement to other states and the federal government.
It was the first state to adopt private prisons in 1985, and today has more people housed in for-profit penal facilities than any other state, second only to the federal Bureau of Prisons. Expansion of the private prison industry has been an integral part of a broader conservative political movement in Texas and nationally to hollow out the government and turn many public services over to the private sector.
In Texas and elsewhere, the private prison industry and its supporters exploited the Great Recession to further the cause of privatization, promoting private prisons and the privatization of health care, food, and other penal services as a salve for escalating costs and overstressed government budgets. But there is scant evidence that for-profit facilities and services save the government much money but alarming evidence that they jeopardize the health and safety of incarcerated people and staff members. Some of the worst instances of abuse in prisons and jails have involved privately run facilities in Texas.
During the prison boom, state officials and private entrepreneurs promoted prisons and jails as engines of economic development, especially in struggling rural communities in Texas and elsewhere. They used misleading or outright false feasibility studies to sell local public officials on the idea that a speculative jail or prison financed by publicly backed bonds would bring economic salvation. But the promised inmate windfall never materialized, and so many counties in Texas and elsewhere found themselves locked into paying for unneeded cells.
The county jail system in Texas now has considerable excess capacity, with only about two out of every three beds filled as of late 2020. Public and private jails in Texas have sought to fill their empty cells by securing contracts to house people transferred from other counties and from overcrowded state prisons in Texas and other states.
They also have looked to the federal government as a safe haven, as have The GEO Group, CoreCivic, and other prison companies. These firms have sought to secure long-term federal contracts to profit from the booming and lucrative market in immigrant detention, which the Vera Institute of Justice has characterized as a “carceral arms race” in rural communities.
Immigrant detention for families has become the most dynamic and profitable sector for the private prison industry, thanks to the policies of the Obama and Trump administrations. Texas leads the country in the number of immigrants held in privately run detention facilities and in local jails through contracts with Immigration and Customs Enforcement (ICE). The GEO Group and CoreCivic have been the greatest beneficiaries of the expansion in immigrant detention, thanks in large part to lucrative, often secretive, contracts negotiated for detention facilities in Texas. The private prison industry in Texas was a leading beneficiary of Obama’s 2014 decision to ramp up family detention on an unprecedented scale.
The Trump administration’s controversial immigration policies, including separating migrant families, have spurred some local governments in Texas to terminate their immigrant detention contracts with the federal government. But others have sought to retain or expand these contracts.
Free Labor
Another key piece of the for-profit model of crime and punishment rests on the exploitation of penal labor. Once again, the Lone Star State has been a pioneer. Texas is one of just five states that generally does not pay state prisoners for their labor. Faced with severe shortages of personal protective equipment when COVID-19 struck, Texas turned to unpaid incarcerated people to manufacture masks and even hand sanitizer, which the TDCJ had argued against distributing in state prisons because it reportedly posed a security threat.
ALEC and Texas have been at the epicenter of efforts to pry open the prison labor market for the private sector. In the aftermath of the Great Recession, the push to deregulate prison industries accelerated as lawmakers touted prison labor as a salve on their budget crises.
As proposals to compensate incarcerated people in Texas for their labor keep getting beaten back in the Texas legislature, some municipalities have been taking matters into their own hands. Last spring, Houston was poised to grant a contract to the TDCJ to replace tire treads on city vehicles. But the city then rebid the project after some city council members objected to awarding the contract to the TDCJ because the state agency would be using unpaid prison labor.
Dismantling the Social Safety Net
Criminal justice reform has been a political smokescreen for powerful conservative interests, most notably the political network centered around billionaires Charles Koch and David Koch, the latter who died in 2019, to burnish their image of political reasonableness and bipartisanship. In Washington, D.C., Texas, and across the country, they made small-bore gestures to reducing the number of people in prison and jail while pursuing a radical agenda whose core pillars — dismantling the social safety net, repressing voter turnout, eviscerating organized labor, and ending public education — will, if successful, fortify the interests that sustain the carceral state and that foster social, political, and economic inequality,
Promoting efforts like Right on Crime allowed the Koch brothers and like-minded conservatives to don cloaks of political reasonableness and moderation while they continue to pursue scorched-earth social, economic, and environmental policies. Such an agenda serves to bolster, not undermine, the carceral state in Texas and elsewhere.
The Right on Crime spin on criminal justice reform in Texas has deflected attention away from how the state, at the urging of these conservatives, has been energetically disinvesting from the items proven to reduce crime and keep people out of prison: better education, good health care, living-wage jobs, affordable housing, and adequate family planning, mental health, and other social services.
Texas has long been a low-spending state, ranking near the bottom in spending per capita on key items like education and health care. Overall, the state of Texas spends less per resident than the U.S. average, and has the fifth most regressive tax system of all the states. It ranks at or near the bottom in key indices of social health and well-being, including literacy, health insurance and the well-being of children, to name a few.
The social safety net in Texas — never adequate in the best of times — is at risk of collapse thanks not only to the conservative assault on Medicaid and other social supports but also to COVID-19. The pandemic has pummeled state coffers in Texas and elsewhere at a time when the penal, health care, and social service systems need additional resources to combat and contain the virus and alleviate the suffering it has wrought.
In July, Texas officials directed state agencies to identify possible 5% cuts in their current budgets. The Texas Health and Human Services Commission proposed cuts to services that play a crucial role in aiding vulnerable people, including programs to address women’s health, family violence, and health care for children and low-income people; SNAP food stamps; and oversight of child care, foster care, and other facilities. The 5% budget cuts proposed by the TDCJ in the face of the pandemic are likely to contribute to a further deterioration in prison conditions.
The Affordable Care Act
and the Carceral State
Texas, which has the country’s highest rate of people without health insurance, has been at the epicenter of the political and legal trench warfare against the 2010 Affordable Care Act. The ACA is arguably the most important piece of criminal justice reform legislation enacted in decades, even though it has not been billed as such.
The ACA required states, among other things, to expand Medicaid coverage to include more categories of low-income people — or else forfeit federal funding. In 2012, the U.S. Supreme Court upheld the ACA except for the Medicaid mandate. Rick Perry of Texas and most other Republican governors chose to opt out of Medicaid expansion, even though the federal government would pick up nearly all the additional costs. His successor Greg Abbott, who filed a lawsuit challenging the ACA’s constitutionality when he was the state’s attorney general, has also opposed Medicaid expansion.
This unwavering opposition to Medicaid expansion starkly calls into question claims by Right on Crime and its allies that fiscal concerns in Texas and elsewhere will force states to forge bipartisan coalitions to support pragmatic, non-ideological solutions to reduce the prison population simply because they cannot afford not to do so. Texas and the dozen or so other opt-out states have eschewed for deeply partisan and ideological reasons the billions of dollars in Medicaid funding that could provide real second chances to people ensnared in the criminal legal system, many of whom, truth be told, never had a first chance.
Research on Medicaid expansion suggests it substantially improves access to care and health outcomes for people involved with the criminal legal system. Medicaid expansion has made it easier for people to get the substance abuse, mental health, and other treatment they need, which has proven to be a key factor in treating low-income people in the community and keeping them out of jail and prison. The surge of new Medicaid money has provided states and counties with new resources and capacity to provide necessary care, including critical help to address the opioid epidemic.
In opting-out of Medicaid expansion under the ACA, Texas left an estimated $114 billion in federal dollars on the table over the course of a decade. This works out to more than $11 billion per year — or about three times the TDCJ’s annual budget. By opting out, Texas also forfeited the opportunity to shift an additional chunk of direct health-care costs for incarcerated people onto the federal tab.
Opposition to the ACA and Medicaid expansion has been a nonnegotiable red line for leading conservatives, including the Texas Public Policy Foundation. Right on Crime was the brainchild of the TPPF, which has deep and longstanding connections to ALEC. The TPPF is one of the leading affiliates of the State Policy Network, a powerful conservative vehicle fostered by the Koch brothers. After retiring from the Texas legislature in 2013, Jerry Madden, a chief architect of the 2007 reforms, parlayed his reputation as a criminal justice reformer into a gig with Right on Crime.
The TPPF is funded by a who’s who of conservative individuals, foundations, and corporations, including the Bradley Foundation, Exxon, Big Tobacco and the Koch brothers. It also receives funding from The GEO Group, the country’s largest private prison company. The TPPF has been a critical player in legal challenges to the Affordable Care Act, most recently the Texas lawsuit supported by 20 state attorneys general that the U.S. Supreme Court heard oral arguments for in November.
Don’t Get Out the Vote
Expansion of Medicaid has had an unanticipated political consequence. It has been associated with increases in voter turnout and other types of political participation for low-income people. As such, Medicaid expansion is a threat to a central plank of the conservative agenda — voter suppression.
The Republican Party and ALEC have been at the forefront of efforts in Texas and nationally to suppress the vote through enhanced prison terms and fines for voter fraud, intimidation of voters, and redistricting to maintain the white, Republican minority. With a couple of notable exceptions, leading Republicans in the criminal justice reform movement have not championed restoring voting rights to people with criminal records. Right on Crime and the TPPF have not made restoration of voting rights a leading issue in Texas, which is one of 17 states that do not permit people in prison or on parole or probation to vote.
Some of the most notorious voter suppression cases recently have been in Texas, including the prosecution of Rosa Maria Ortega, a Mexican citizen with learning disabilities and mother of four who mistakenly thought her green card status entitled her to vote. In 2019, voter-suppression bills were a top priority for the GOP in Texas, which already has the most restrictive voting laws in the nation, according to a new study by Northern Illinois University. A sweeping bill that would have raised penalties for election-related crimes was turned back, but Republicans succeeded that year in enacting other measures to curtail voting rights in the Lone Star State.
The New Politics of Penal
Reform in Texas
The excessive national praise that Right on Crime and Texas in particular have garnered has obscured the state’s relatively slim accomplishments when it comes to real criminal justice reform. It also has shrouded more promising political developments that may finally turn Texas into a leader in efforts to dismantle the carceral state.
Summing up the state’s record on criminal justice reform at the end of the legislative session in 2019, Scott Henson of “Grits for Breakfast” concluded: “86th Texas Lege a killing field for #cjreform.” Eight years earlier, the TDCAA had reached a similar conclusion: “Most of the let-’em-out-early bills failed to pass, thanks to the opposition of prosecutors.” This was no Texas-sized exaggeration. Like statewide associations of prosecutors in other states, the TDCAA remains a formidable obstacle to both moderate and far-reaching reforms.
But compared to the prison-building boom years of late 1980s and 1990s, Texas now has a growing number of powerful statewide and local organizations to counter the TDCAA and other opponents of real criminal justice reform. Groups that have been locked out for so long from political power in Texas have been pushing back to claim their rightful place in policy-making and politics. The electoral and political mobilization of low-income people, immigrants, African-Americans, and other people most hurt by the carceral state has, among other things, helped turn once sleepy judicial and D.A. races into real political contests.
In other ways that have gone unheralded, Texas is poised to be a leader in dismantling the carceral state. Criminal justice issues in the Lone Star State receive far more informed and extensive media coverage, thanks to stalwarts like the award-winning Texas Observer, upstarts like the online, nonprofit Texas Tribune established in 2009, and the outstanding work of individual journalists, bloggers and small local newspapers. Compared to many other states, Texas now has a dense network of advocacy groups that are producing outstanding research on the vast injustices of the state’s criminal legal system and mobilizing against them.
On the electoral front, the failure of the Democrat Party to turn any statewide offices blue in the 2018 Midterm elections has obscured the political earthquake that year as the party picked up seats and moved within striking distance of becoming the majority in the 150-member House. In the Midterms, Democrats flipped four of the intermediate appeals courts and became the majority on half of the 14 courts.
In Houston’s Harris County, the Democratic Party completed a sweep of all county-wide races, ousting 59 municipal court judges. Most of the victorious municipal judge candidates, including 19 black women who ran on the “Black Girl Magic” slate, supported cash bail reform, unlike their ousted opponents. In another upset victory, Harris County chose 27-year-old Lina Hidalgo, an ardent champion of criminal justice reform, as its next chief executive. As the Texas legislature continued to dither over what to do about reforming cash bail, the newly elected misdemeanor court judges in Harris County, the state’s most populous county, overhauled the bail system in early 2019.
Criminal justice reform has become a leading issue in some D.A. races in Texas. After sparring over who was the real criminal justice reformer, Democrat John Creuzot, who is African-American, defeated Republican incumbent Faith Johnson in the 2018 race for district attorney in Dallas. In Fort Bend, an affluent Houston suburb, African-American Brian Middleton defeated the heir apparent of John Healey, one of state’s most conservative district attorneys who had been in power for more than a quarter-century.
In Texas, as elsewhere, some DA candidates who have run as reformers have taken hardline stances once in office, notably Kim Ogg who became Harris County DA in 2016.
Reformist district attorneys in Texas — whose de-carceral measures are far more modest than prosecutors like Larry Krasner in Philadelphia and Chesa Boudin in San Francisco — have faced significant pushback from other public officials and law enforcement groups. In spring 2019, the city’s large and powerful police officers’ union called for Creuzot’s removal from office after he announced that his office would no longer prosecute certain low-level drug and theft cases.
In the 2020 election, the Republican Party in Texas preserved its decades-long dominance of the state’s two top civil and criminal courts, with seven Republican incumbents winning re-election. As in 2018, the real action for criminal justice reform was in down-ballot races. The Democratic Party’s hopes to take over the Texas House were dashed by a dismal showing in which the party did not gain a single seat. But the party and key criminal justice reformers made major advances in DA races and lower-level judicial contests, including key intermediate appellate court races across the state. In Dallas, Democrats completely swept the Fifth Court of Appeals, ousting all three Republican incumbents. As recently as 2014, Republicans won all 73 judicial races in the city of Dallas. In 2020, Democrats were the winners in all of these judgeships.
The city of Austin is poised to be a catalyst of real criminal justice reform in Texas. In 2020, voters chose José Garza, a former public defender and labor and immigrant rights attorney, as district attorney of Travis County, which includes the city of Austin. Voters also elected former city council member Delia Garza as Austin’s next County Attorney. Garza was an outspoken critic of the Austin police for their response to the protests following the police killing of George Floyd in Minneapolis.
In short, Texas is in the midst of a deeper political transformation that has radically changed the political landscape compared to 30 years ago at the height of the prison boom or even 15 years ago when mass incarceration was not yet a national issue. The ballyhooed Right on Crime approach is fundamentally at odds with this transformation. So are some of its top leaders, who are top-shelf arch conservatives.
Right on Crime promotes a narrow, top-down approach to criminal justice reform that tinkers around the edges of the carceral state without spurring a major contraction. Uncritical promulgation of this elite-driven, win-win political model of reform with Right on Crime as its anchor has come at a high political cost. It is premised on promoting a “pragmatic” vision of politics that is actually deeply ideological and incapable of ameliorating the country’s most pressing problems — from mass incarceration to global warming to massive economic and political inequality.
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