The Texas Penal System as a Microcosm

Looking carefully at the history of Texas makes us rethink the history of crime and punishment and incarceration in the country as a whole.
  • Transcript


Question: Why did you focus your research on Texas prisons specifically?  

Robert Perkinson: Well, my family is from the South and when I went to grad school at Yale and decided to start working on prisons because as an undergrad, I had noticed you know, there’s all this money going into prisons and we’re starting at that time already to eclipse higher education spending in many states.  But when I started kind of going through the literature I realized that almost all of the books were really focusing on the north, there were a lot of new books and research that were coming out of California, but the South is really where the action was.  Three-fifths of the prison growth in the U.S. in the last 30 years has been in the South.  The South overwhelmingly and to a lesser extent the Sun Belt, has the highest rates of incarceration in the country and there hadn’t been much attention there.  

So I went down to my own state where I spent a lot of time, Mississippi, and thought about doing research there and then I spent time at the Angola Prison Plantation in Louisiana, but the more I started poking around, the more I realized that Texas is really where the action is.  You know, just like if you were going to do film studies you were probably going to end up in Hollywood, or study finance you’re going to end up in New York.  

Texas has now the largest penal system in the United States, 171,000 people behind bars.  That’s more than California, even though California has a third larger population.  Those under some sort of criminal justice supervision, including parole and probation, that gets up around 750,000 in Texas, which makes it about the same size as the booming capital, Austin.  It’s got obviously the most active death chamber in the nation, the most aggressive private prison industry.  Texas is also politically really important because Bush the second was President when I started this project and a lot of recent Presidents have come from Texas; Eisenhower and Johnson and both Bushes.  

So, I felt that Texas was a place where we can see the Southern influence of criminal justice on the nation because it’s a kind of bridge between the Deep South and the West and the Midwest.  And it really was where the action was.  And I think it was the right place to look because I think looking carefully at the history of Texas kind of makes us rethink the history of crime and punishment and incarceration in the country as a whole.

Question: What about Texas is causing such high incarceration rates?

Robert Perkinson: Yeah, the sentences tend to be longer, the protections for indigent defendants so on the entry side, tend to be weaker.  Texas has, although that’s starting to change now, but there’s no state-wide public defender system, so most of the public defenders are appointed by judges. And they’re paid a kind of set amount for the case, which means that the less work they do on behalf of a defendant the more they will make as an hourly wage.  There’s all sorts of court-appointed attorneys who are doing... working really hard, but they are penalized for doing so.  And the judges are also elected in Texas which has meant that in the kind of resurgence of conservatism that has seized on law and order as central campaign slogan and as candidates from Bush the first using Willie Horton against Dukakis forward have found that attack ads based on accusing someone of being soft on crime are pretty effective.  It’s meant that most of the judges elected to the criminal appellate courts and to the local courts have been law and order conservatives—often prosecutors or victim’s rights advocates and so the judiciary in Texas has more often wielded a rubber stamp than a gavel.  So that accounts for some of the higher rates of incarceration.  And that explains a lot of why Texas’ death chamber is so much more active.  

Texas doesn’t have the largest death row.  It’s not sentencing more people to death, although there are a lot of people being sentenced to death because they are not getting good representation... but the Appellate Courts are so harsh in Texas.  So much so that even the U.S. Supreme Court, which is now a very conservative body, has repeatedly over the last few years been rebuking the Texas Court of Criminal Appeals.  I mean, they’ve made decisions that, to the rest of us seem unfathomable.  They allowed an execution to go forward because, without review, because the defense attorneys missed a 5:00 p.m. filing deadline.  They refused to release inmates who have been proven twice innocent by DNA evidence.  Just a couple of weeks ago the Supreme Court had to step in and stop the execution of Hank Skinner because the prosecutors had refused for years to subject the physical evidence from his crime scene to DNA testing and the list kind of... they refused to order new trials when they found out that the judge and the prosecutor had been sleeping together during the defendant’s trial.  So, there’s a whole series of kind of outrageous decisions.  

So, it’s a confluence of factors, but what I didn’t get to and maybe we’ll talk about later is what I really actually argue in the book is more that there is this historical legacy of slavery and that we still live within slavery and segregation’s shadow in that really is what is governing and propelling prison growth in the south, and now in the country as a whole

Question:  How has DNA testing affected the justice system in Texas?

Robert Perkinson: DNA testing has led to a kind of crisis in the judiciary because—if it’s done properly—which is often isn’t...  I mean, the crime labs in Dallas and Houston have been plagued by error and prosecutorial bias... But if the labs are independent and fair, and the training is solid and they’re independent, then the results are so good that it has made us realize that types of testimony—types of evidence that we thought were unassailable, like eyewitness testimony in rape cases, in which the victims with great conviction believe that the person before them was the assailant, it has turned out in many cases that they were wrong.  And there’s a lot of cognitive research now to back this up that we can kind of plant memories or change memories through the process of the lineup and so on.  

So yeah, the more that we can—the more that we can provide defendants in cases which there is physical evidence the best kind of testing to ensure the most fairness, that’s better.  And that’s a way to reduce, frankly the prison population and to save money in the long-term as well.  I mean, I think having a robust public defender system, having a genuinely adversarial criminal justice system that will... on the one hand, stop people from going to prison, but also there’s a much larger category of gray areas where people are going down for, or pleading to sentences that are much longer than they would have gotten even if they were guilty, had all the investigative and mitigating factors come to the fore with adequate defense representation.  That’s a way to reduce the prison population and it’s a way to do it in such a way that it might not entail as much political peril as some early release programs, if they’re not done carefully because that always of course will generate some portion of ghastly headlines.

Why does Texas execute so many people?

Robert Perkinson: That has to do, I think primarily with the way that both indigent defense is handled in Texas and the Appellate Courts are organized.  Indigent defense is court appointed rather than a public defender system, although there have been some improvements in the last couple of years.  But court-appointed attorneys in Harris County, which is the death penalty epicenter of the United States, they don’t have their own evidence budgets, they don’t have salaries.  They are penalized economically if they work really hard on a case, and so there’s a kind of assembly-line quality to the convictions.  And then worse, the elected judges at the appellate level have let all sorts of cases go through.  And indeed, we have now pretty much irrefutable evidence that Texas, in recent years, with all of the criminal procedure improvements since the Warren and the Berger courts that have been executed were innocent.  Notably, Cameron Todd Willingham, who was one of my research subjects and we corresponded for a long time.  He was profiled in The New Yorker.  

I myself, I must confess, because I have young children and he was convicted of burning alive his two daughters in order to collect insurance money.  I always felt a little queasy corresponding with him.  I never really believed his constant professions of innocence, but luckily somebody did start looking into it and once they hired minimally competent arson investigators to go over the physical evidence, and once they had people go back and look at the witness testimony when they were first interviewed by police, versus what they said on the stand, they were able to show that, A) there’s no evidence of arson whatsoever, B) there’s no serious motive—the insurance settlement was paltry.  And all of the kind of evidence of him being kind of dangerous was also dubious and generated by prosecutorial coaching.  And everybody who has looked at that case is now convinced that Willingham was innocent.  

The Texas Forensic Science Commission was about to, a couple of months ago, declare that he had been wrongly executed.  Governor Ryan, in Illinois, when this happened under watch, to his credit, he was a pro-death penalty Republican, he was so troubled by the prospect of executing innocents that he vacated death row in order to really high level investigation of the entire death row, and it resulted in a lot more exonerations.  And he commuted a lot of those sentences to life in prison, and some less, and some people walked free.  

Governor Perry, longest serving Governor in Texas history, executed under his watch, more people than any other Governor quite possibly in American history.  He took a different approach.  When the evidence became clear that an innocent person had been executed under his watch, he fired the members of the Forensic Science Commission and replaced it with his cronies such that the truth would be squashed.  And that’s kind of a—that’s a pattern of his in the past is to pursue policy ideologically based and to ignore truth and evidence.

Recorded April 14, 2010