Texas Tough: The Triumph of Southern Justice

It warms the heart to read a well-researched book that confirms long-held hunches.  Michelle Alexander’s The New Jim Crow gave me that feeling.  So did Stuart Banner’s The Death Penalty: An American History.  And now we have Robert Perkinson’s Texas Tough: The Rise of America’s Prison Empire

All three books reinforce a theme I have been developing for several years: American-style mass-incarceration is a southern export rooted in a backlash against the gains of the civil rights movement.  Banner’s The Death Penalty applies this thesis to the rebirth of the death penalty in post civil rights America.  Michelle Alexander argues that the war on drugs is a not-so-subtle extension of the cynical Southern strategy.  Texas Tough leaves no doubt that the prison boom that revolutionized America during the 1980s and 90s represented a mainstreaming of Southern-style justice.

The Austin Chronicle has published an eye-opening interview with Texas Tough author, Robert Perkinson in their August 20 edition.   Please read the entire piece, and then order the book.  I have pasted a few highlights below.

AC: The popular mythology of Texas doesn’t acknowledge the plantation history. It’s all about big, wide-open spaces and cattle ranches, and to the extent it recognizes the bloody historical record at all, it’s all about fighting off the American Indians and the Mexicans.

RP: Texas is funny, because it’s both a Southern state and a Western state, and it’s become an urban state. … The history of criminal justice and law enforcement is tied to that Western frontier experience. If you look back at the early history of the Texas Rangers, they were not engaged in what we think of as law enforcement but really involved in what the best recent history calls ethnic cleansing against Mexicans and Indians. That’s the origins of law enforcement, and slave patrollers were the other origins of law enforcement. In Texas, all white men were required to serve on slave patrols in the antebellum period, so that was a state-imposed way of imposing order. But the prison system really has its origins in the Southern history of Texas.

I decided to work on Southern prisons because that’s really where the action is and not as many people had paid attention to it. The South is imprisoning more people and at a higher rate and is executing more people and has pioneered a lot of the harsh innovations that have come to the fore nationwide over the past two generations. I thought I would work in my own family state, Mississippi, and I went there, I spent some time in Louisiana. But the more I researched, the more I discovered that Texas is really the epicenter of this, for three reasons.

In the first place, Texas exemplifies the Southern history of the plantation as well as any place. Secondly, it’s just out of the park by every measure in present-day criminal justice severity: There’s more people locked up in Texas than any other state (even more than in California), more people in supermax lockdown, more people in for-profit facilities, and more people executed than in any other state. But the surprising part is that Texas is also different than Mississippi or Louisiana or Arkansas in that it really has had national influence. Those other states were always regarded by prison professionals and national policymakers as kind of backwaters, and mostly still are, whereas Texas is the only state that really perfected the plantation model, starting in the 1950s, and made it palatable. They imported enough of the modern correctional technologies, combined them with slavery-inherited form of retribution, and they were able to present the Texas model as a conservative counterweight to California’s rehabilitative model in the 1950s and 1960s. And as the country swung to the right, after the election of Richard Nixon [in 1968], and as rehabilitation didn’t live up to its promises, Texas’ no-nonsense, economical, authoritarian model started getting picked up and mimicked around the country.

So first there was the antebellum period, when whites were in prison and blacks were under private discipline. Then there was the private-profit, and actually most brutal, period in Texas prison history; and then, after convict leasing was abolished, the state just purchased those same plantations that the private contractors had owned and pretty much absorbed their same personnel and started working convicts in the same fashion as had the private contractors. It was unpaid direct labor for the profit of the state, which meant that Texas able to spend very little in terms of appropriations for incarceration, because the prisoners were generating most of the budget for the prison system.

AC: One of the historical versions of the Ruiz case is that the prisons were absolutely horrifying until Ruiz and Judge William Wayne Justice, and that once those cases made their way through the system, things were much better. And yet you record that in the last couple of decades, particularly for minority inmates, incarceration has gotten much worse, sentencing has gotten much worse, indeterminate sentences came to mean “longer and harder,” disappearing youngsters into prison virtually forever. How would you recount, say, the last generation of this system?

RP: There’s two contradictory developments that move in opposite directions. The Ruiz case did make the prisons system more professional, more accountable, more transparent, and it provides better medical care than it did before the reforms ordered by the courts. So it’s a more professional bureaucracy, and that makes life better for most prisoners in the system. Prisoners who were favored by a warden or something had a much better deal under the old system. It depends on race, too – if you talk to old-time white prisoners, they might say it was better under the old system, and black prisoners generally say that it’s better under the new system.

At the same time those reforms were being made, there’s this political transformation in the state that begins in the late 1960s, I argue, in reaction to the civil rights movement. Across the South, the conservative Democratic establishment was defeated on racial integration. They fought as hard as they could – not quite as hard as they had fought during the Civil War, but they fought pretty hard – and they lost. But they immediately began turning to law enforcement and criminal justice to manage this new social order that they had feared and fought against. The same years that the segregationist statutes are swept off the books, you start seeing the passage of adult prosecution of juveniles, sentencing extensions, harsher penalties for drug crimes, more money for law enforcement, more money for prison construction. That accelerates during the Seventies and really just goes metastatic in the Eighties and Nineties, when every legislative session politicians were wanting to take home sentencing enhancements and parole curtailments and new crimes and crackdowns on this or that – either because they were running on a law-and-order platform or because they wanted to protect themselves from attack on the right if they were liberals.  [my emphasis]

AC: Early on in the book, you talk about the racial disparities in incarceration and that the situation for African-Americans is much worse than it was previously: “Today, a generation after the triumphs of the civil rights movement, African Americans are incarcerated at seven times the rate of the whites, nearly double the disparity measured before desegregation.”

RP: That’s just the shocking result of all of these sentencing laws we’ve passed that have primarily changed the ways we deal with nonviolent offenses.

AC: We tend to have this narrative in our heads: Things are bad, but they’re not as bad as they were before.

RP: Right – and in criminal justice, the opposite has happened. It is really quite shocking, and there are a lot of reasons for that, but what’s changed primarily is how we deal with nonviolent offenders. Under the old system and the new system, and in every state, lenient states and severe states, the sort of criminal predators that dominate our headlines or the news shows are put in prison for a long time: child rapists, serial killers, and so on.

But the drug war has created all of these perverse incentives: Police departments get rewarded with federal and state dollars for the number of arrests they make, which encourages them to go after low-level drug offenders, so they just tend to sweep through the poor communities. The survey evidence is pretty clear that whites use illegal drugs in equal proportions to African-Americans, yet they constitute only a small number of the arrests, and even a smaller number of those imprisoned for drug offenses. And then there is racial profiling; there are studies that show racial bias at every level of the criminal justice system. As a result, criminal justice has become an important engine of racial inequality and has arrested our country’s progress toward genuine pluralistic democracy.

AC: Is it pretty much the same pattern all across the country?

RP: It is, just to a lesser extent. Texas and other Southern states have just pushed the incarceration rates higher and the sentences longer and made parole more difficult than states elsewhere. The next in the ranking of severity is the Sunbelt West, and then the Midwest and Northeast are more lenient. But compared to other countries, every state in the country is much more severe than Iran or Cuba or any of the countries that we think of as authoritarian regimes. The U.S. locks up a greater proportion of its citizens than any of them.

AC: And there’s this narrow line between the prisoners on the one hand and the correctional officers on the other. They come from the same world, and it’s almost a toss-up which side of the line you end up on.

RP: And the real old-time employees [in the Texas system] really feel that way. Because once upon a time, the really old employees in the system, the veterans …. It was white men who had grown up on farms who worked in the prison system. Often their fathers and maybe even their grandfathers had worked in the prison system. So it was white rural folks who ran the prisons, and it was black urban folks who were the prisoners. So the status division between free and unfree mirrored the status divisions that were present in all sorts of other ways. Now it’s much more complex.

AC: You began talking with a little optimism that there seems to be a little movement in the Legislature to change things.

RP: If you read this book, you see every reform movement that took place – and often got smashed back. That’s often the danger. So when this level of bloat and waste and ineffective government becomes the new status quo, and legislators only tinker around the edges with a few more programs for people getting out of prison and some modest programs for low-level drug offenders, that will really be a tragedy, and this moment of opportunity will be wasted.

On the other hand, there are some promising signs. This current round of reforms in the last couple of legislative sessions has really been led by the Legislature, in both houses, and with a surprising amount of bipartisan cooperation. The governor grudgingly began to go along, after blocking those efforts in 2005. There’s some pretty sophisticated citizen efforts out there, like the Texas Criminal Justice Coalition led by [Executive Director] Ana Yáñez-Correa. And I met with a whole bunch of legislative aides and staffers when I was there a couple of weeks ago, and people on both sides of the aisle are really interested in making some changes. It’s like the whole political establishment has kind of sobered up from a 40-year prison binge and is now standing around saying, “What have we done?”

If 40 years ago a dozen politicians had gotten together at the Driskill and said, “What’s the most ineffective, the most expensive, and the most damaging set of policies that we can implement to change our criminal justice system?” – that’s what they’ve done for now 40 years running. And the result is a huge waste of resources without very much protection for the public.

Crime is going down in Texas, and that’s a good thing, but crime has dropped much more precipitously in New York, and New York has had a much more modest prison buildup. And crime has dropped similarly in Canada, and there has been no prison buildup.

AC: You write that in order to change this, it’s not going to take working around the edges; it’s going to take a social movement. The social movements I see developing are mostly pushing everything harder to the right.

RP: Well, so far, we don’t see anything like the sort of public mobilization that I think will be required to really turn this ship around and to have us downsize this bureaucracy to the size it ought to be – which is probably a 10th the size that it is now – and divert all of those resources that are getting sucked in to incarceration to drug treatment and education and to child abuse prevention – all of those sorts of programs where we ought to be spending.

But long-term, to a surprising extent, I found in looking at the history of criminal justice, I found over and over again, the debates were always poisoned by race. That was true through the law-and-order crime panic of the 1990s, and I think racial poison is still flowing through the tea party and the anti-immigration mobilization right now. But the demographic projection of Texas and the rest of the country suggests that we can eventually get beyond some of that. Not for very much longer will politicians in Texas be able to get elected to statewide office in Texas with only the Anglo vote, and once statewide politicians have to start putting together broader coalitions, then it limits the degree to which racial demagoguery – either overt, or as it is these days, coded – can play such a prominent role in politics. If that racial poison gets taken out of the equation, then it could allow people to much more calmly get down to the business of governing.

AC: One larger philosophical question: You allude to the historical debate over the point of prisons at all. We take prisons for granted as a necessary evil – with ferocious advocates but very few people willing to say the whole notion is a bad idea. Do you think we’ll ever get to a point where the prison isn’t the first recourse for every kind of anti-social behavior?

RP: I certainly hope so. The conclusion I came to is that it would be much better to have prisons oriented toward making people come out better – more educated and more employable, and less angry and more psychologically balanced – at the other end of their incarceration experience.

But ultimately, I decided that prisons are just corrosive institutions, for staff as well as inmates, that really the most important thing we can do is try to figure out how we can not have people go to prison in the first place. And that means the presumption of policymakers and judges and prosecutors in law enforcement ought to be, every time there’s a criminal offense: What is the best remedy to this problem? And is it possible for us to come up with any remedy that does not involve sending this person to prison, where they are going to be more damaged and come out angrier and less employable than they were before? And that’s the way the system has to be designed, and we have a very, very long way to go before we get there.

4 thoughts on “Texas Tough: The Triumph of Southern Justice

  1. Alan.

    Another good post.

    My blog browsing includes sites advocating against the drug war. I notice is at although many articles and comments mention in passing the discriminatory effect that the laws have against Negroes, they don’t adopt this as an important reason for opposing those laws. I do not think the war against the drug war can be won unless the discriminatory effect is treated as the most important reason for opposing the laws.

  2. Don’t forget disfranchisement comes with a prison sentence, the tax dollars that come to a county that has a prison (for profit or not), and that the county’s population increases as well so the county gets better government respresentation.

  3. In Texas, once a prisoner has completed his sentence (including parole) his voting rights are restored. Many released prisoners are still afraid to register and vote. And the country registrar in my county did not know until I called it to her attention that voting rights had been restored. She looked it up and agreed that I was right. It is true that the county gets the prison population when the per capita goodies are passed out.

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