The Texas Penal System as a Microcosm

Question: Why did you focus your research on Texas prisons \r\nspecifically?  

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

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

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

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

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

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

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

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

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

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

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

Question:
Why does Texas execute so \r\nmany people?

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

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

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

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

Recorded April 14, 2010

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

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