The Prisoner Dilemma

Texas fails to confront mass incarceration

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When Texas inmate David Ruiz filed a handwritten petition to sue the Texas Department of Corrections in 1972, it led to a landmark case that turned on whether Texas prisons violated the United States Constitution’s prohibition of cruel and unusual punishment. In 1980, a federal court judge in Tyler, Texas, sent shockwaves through the Lone Star State by ruling that they did.

Ruiz v. Estelle initially spurred some important penal reforms, as the Texas Department of Corrections found itself under the supervision of federal judge William Wayne Justice, whose ruling exhaustively documented the department’s violations of prisoners’ rights—before stating in his conclusion that “it is impossible for a written opinion to convey the pernicious conditions and the pain and degradation which ordinary inmates suffer within TDC prison walls.” Justice mandated that Texas had a constitutional duty to relieve massive overcrowding, as well as conditions that deprived prisoners of basic guarantees of safety and health. But this widely celebrated prisoners’ rights decision ultimately contributed to the construction of a much larger penal system in Texas that today is one of the toughest places to serve time in the United States.

As the TDC continued to fight aspects of Justice’s ruling on appeal through the 1980s and 1990s, Ruiz v. Estelle provided penal hard-liners in Texas with an opportunity to expand, bureaucratize, and professionalize the longstanding model of punishment based on maximum control at minimum cost, with little outside oversight. These hard-liners, including top Republicans and Democrats, ultimately gutted many of the court-ordered reforms. As for Ruiz, the lead plaintiff in what became a class-action lawsuit, he served out a life sentence for armed robbery, often in solitary confinement in a cramped, dank, dungeon-like cell. Just months before he died in 2005, he was moved to a prison hospital after being denied medical parole. As Robert Perkinson dryly notes in Texas Tough: The Rise of America’s Prison Empire, his monumental history of crime and punishment in Texas, Ruiz fought the law, but the law ultimately won.

As calls to end mass incarceration have escalated over the last decade, Texas is being hailed once again as a model for criminal justice reform. Politicians from Barack Obama to Donald Trump have lauded the Lone Star State for new “smart on crime” policies or for embracing “Right on Crime,” the criminal justice movement associated with prominent conservatives, including Newt Gingrich, Grover Norquist, and the Koch brothers. Right on Crime promotes a view of mass incarceration as primarily a dollars-and-cents problem for taxpayers that requires a pragmatic, bipartisan approach—diverting attention from the racial, economic, and social inequities that built the carceral state and sustain it today.

The origin story of the latter-day turnaround in Texas’s criminal justice system 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 seventeen thousand prison beds by 2012. Instead, they enacted some modest changes in probation and parole to redirect people to community supervision; they also restored some funding for substance abuse and mental health treatment. The attempt to slow down prison construction was, in fact, a big change from the post-Ruiz era, when the state attempted to build its way out of the overcrowding problem. And yet, even though Texas was required to face up to certain realities—first by the Ruiz case and later by budget constraints—the Texas penal system, after all these years, has not really changed its stripes.

The Texas Prison Complex

For all the hype, Texas remains “more or less the epicenter of mass incarceration on the planet,” according to Scott Henson, author of Grits for Breakfast, the indispensable blog on criminal justice and law enforcement in Texas. Other states have far surpassed Texas in reducing the size of their incarcerated populations and in providing safer and more humane lock-ups that are not such blatant affronts to the Eighth Amendment’s ban on cruel and unusual punishment.

Texas today incarcerates nearly one-quarter of a million people in its jails and prisons—more than the total number of prisoners in Germany, France, and the United Kingdom combined. If Texas were a country, its incarceration rate would be seventh in the world, surpassed only by Oklahoma and five other Southern states. Texas still operates some of the meanest and leanest prisons and jails in the country. 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 lock-ups in isolated rural areas.

All the applause that Texas received for the prisons it did not build and the handful of prisons it closed has overshadowed the fact that the Lone Star State continues to be one of the most punitive in the country. If you add the number of people in prison and jails to those on probation, parole, or some other form of community supervision in Texas, that quarter of a million number grows to about seven hundred thousand. This amounts to about one out of every twenty-five adults in the state. That’s enough to fill a city the size of El Paso.

Between 2007 and 2018, the total number of people held in state prisons and county jails in Texas did fall somewhat—by about 6 percent. But while the number of incarcerated men in Texas prisons and jails has inched downward, the number of incarcerated women has continued to grow. The state’s female incarceration rate ranks fifteenth nationwide.

Texas has yet to enact any landmark criminal justice reform legislation that would truly scale back the number of people in prisons and jails. Meanwhile, it has created hundreds of new crimes and dozens of enhanced penalties. Unlike many other states, Texas has yet to reduce the penalties for even low-level drug crimes. Last year, the number of new felony cases filed in Texas reached a near all-time high, “driven primarily by an increase in drug possession cases,” according to the annual report of the Texas Judiciary. For all the talk about the need to be “smart on crime” and to endorse “harm reduction strategies” to deal with substance abuse, Texas is one of the few states—and the only large state—that has no officially sanctioned statewide needle exchange programs.

The war on sex offenders has also not let up in Texas. In 2007, lawmakers enacted draconian measures to stiffen what were already tough penalties for sex offenses. Compared to fifteen years ago, more people are now serving time for sex offenses than drug offenses in Texas state prisons. Some lawmakers have been pushing to make the state’s sex offender laws more punitive, even though Texas has one of the most expansive and intrusive sex-offender registries in the country and some of the toughest residency restrictions and community notification laws for people convicted of sex offenses.

On several key indicators, Texas has lagged behind in juvenile justice reform. After the landmark 2012 U.S. Supreme Court decision that sentencing juvenile defendants to mandatory life sentences without the possibility of parole was unconstitutional, many states, both red and blue, rewrote their sentencing laws to permit minors convicted of serious crimes to receive a parole hearing after serving twenty-five years or even less. Not Texas, which requires juveniles sentenced to life to serve forty years before receiving a parole hearing. (But that potential is mostly theoretical, since fewer than 5 percent of the people serving life sentences in Texas are ever paroled.) Texas is one of just four states that still prosecutes seventeen-year-olds as adults, as raise-the-age bills continue to stall in the legislature. Violence and abuse continue to plague state juvenile facilities despite an overhaul several years ago.

Texas didn’t even have a life-without-parole statute until 2005—preferring the death penalty for serious cases. Since then, legislators have expanded the list of crimes punishable by life without parole, often called “the other death penalty.” In a short period of time, the number of people serving life sentences in Texas has exploded. More than one out of every eight state prison inmates in Texas is currently serving a life sentence or a “virtual” life sentence of fifty years or more.

Go Directly to Jail

At the other extreme, even the most minor offenses can bring the punitive arm of the law down on people in Texas. You can be arrested, booked, and jailed for any violation, including nearly all misdemeanor traffic offenses, such as a broken tail-light or failure to signal. These are infractions that are not punishable by jail time if found guilty. Yet Texas traps hundreds of thousands of people in modern-day debtors’ prisons each year, thanks to its cash bail system and its extensive system of fees and fines for minor violations. Misdemeanor offenses that are punishable by fines routinely result in a “cascade of unconstitutional and devastating consequences,” according to a 2016 report by the ACLU of Texas. People who cannot afford to pay off their traffic tickets or other fines right away end up in a maze that “virtually guarantees” they will receive even more tickets, fines, and penalties. Many eventually end up in jail for their failure to pay up.

In 2017, Texas legislators eliminated “some of the most comically absurd elements” of this fine system, according to blogger-researcher Henson. Although the number of people jailed for failing to pay their fines and fees has since declined significantly, about half a million people were sent to jail for failure to pay in fiscal year 2018.

As the movement to end cash bail gains ground around the country, Texas remains a powerful bastion of the bail bond industry. Despite support from top Democratic and Republican lawmakers and leading advocacy groups, proposals to even modestly reform cash bail have floundered in the Texas legislature.

There’s an extensive civil asset forfeiture system in place, too. Police and prosecutors have wide latitude to seize cash, property, and other assets that they claim are related to criminal activity, even if the person involved is never charged with a crime. In 2017, lawmakers filed at least fifteen bills to curb civil asset forfeiture, but they went nowhere because of unwavering opposition from the Texas District and County Attorneys Association and police departments, and the lack of public support from Republican Governor Greg Abbott.

To its credit, Texas has emerged as a national leader in preventing and uncovering wrongful convictions and in compensating people who have been exonerated. This bright spot has come from a dark place. 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.

Leaving aside these pioneering efforts to prevent and rectify wrongful convictions, the Texas District and County Attorneys Association’s 2011 summary of the legislature’s modest record on criminal justice reform still holds today: “Most of the let-’em-out-early bills failed to pass, thanks to the opposition of prosecutors.”

The legislature’s failure to act is not the only stumbling block to real criminal justice reform that would scale back the carceral state. Public officials and policy-makers, notably the governor, the Texas Board of Pardons and Parole, and the Texas Department of Criminal Justice (TDCJ), have considerable discretionary powers to reduce the prison and jail population and improve conditions in penal facilities that they have been unwilling to wield.

The executive clemency process in Texas shows even less life today than it did fifteen years ago and is effectively moribund. As for elderly and gravely ill inmates, they are seldom granted medical parole, even though the state’s compassionate release laws have some remarkably liberal features, at least on paper.

For decades now, the Texas Board of Pardons and Parole has been a key accelerator and brake on the state prison population. The total number of people in prisons and jails in Texas peaked in around 2010 and has generally been falling since then, thanks to a modest uptick in parole approval rates in 2012. The use of parole has largely been sustained since then, but it falls far short of the roughly 50 percent approval rates of the early 1990s, when Texas was under the federal court order to ease prison overcrowding.

Life in Prison

The hope after the Ruiz case was that humane conditions would gradually be imposed on the Texas prison system. But Texas remains exceptional today not only for the sheer number of people under state control, but also for the brutal and inhumane conditions that persist in its prisons and jails.

In the 1990s, Texas and Arizona pioneered the extensive use of supermax cells and administrative segregation, commonly known as solitary confinement, in which prisoners are kept in their cells nearly around the clock and denied any meaningful human contact for months, years, or even decades. In 2011, UN Special Rapporteur Juan E. Méndez concluded that periods of solitary confinement greater than fifteen days constitute torture.

Over the last decade, 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, though not Texas, have become outspoken critics of solitary confinement.

The Texas Department of Criminal Justice reports that about 3 percent of state prisoners are housed in extreme isolation, which would place Texas in the bottom third of reporting states. But Texas leads the country by far in the number of prisoners serving long periods of time in solitary confinement. Nearly 70 percent of all the prisoners in the country who have been isolated for six or more years are housed in Texas state prisons.

Solitary confinement in Texas is more austere and restrictive than in other states. A high proportion of segregated inmates in Texas state prisons have been diagnosed with mental illnesses. Denied social contact, people housed in solitary confinement get worse at relating to others. Until very recently, the TDCJ routinely released hundreds of people from solitary confinement directly to the streets each year without any step-down or transition programs.

Incidents of major use of force against prisoners have increased about 50 percent over the last decade in Texas state prisons, likely due to chronic staffing shortages, high staff turnover, inexperienced guards, and prisons that get brutally hot in the summer. Thousands of untrained guards work in jails across Texas, thanks to a loophole that permits jails to employ temporary guards for up to a year. The deadly consequences of this loophole were shockingly apparent in the video of the death of Andy DeBusk, who was coming down from a meth high in a privately run jail outside of Fort Worth when he died of asphyxiation after being pepper-sprayed and shackled by poorly trained guards on Christmas Eve 2016.

Newsweek and other publications have referred to Texas as the “prison rape capital of the United States” because it leads the country in sexual abuse in prison. A 2016 report by advocacy groups in Texas documented the state’s “Texas-sized failure” to comply with the federal Prison Rape Elimination Act of 2003.

And the number of suicides is at a twenty-year high in Texas state prisons despite the dip in the total number of inmates. Suicides in county jails have declined, perhaps thanks to reforms mandated by the 2017 Sandra Bland Act, named after the twenty-eight-year-old black woman who, in a contested series of events, allegedly committed suicide in a county jail in 2015 after being arrested by a Texas state trooper during a needlessly confrontational traffic stop.

Mass Incarceration on the Cheap

When faced with a budget shortfall in 2011, the Texas prison system eliminated lunch for many inmates on weekends. State Senator John Whitmire, a Houston Democrat who was a key architect of the 2007 penal reforms, quipped at the time, “If they don’t like the menu, don’t come there in the first place.” Some TDCJ inmates still only receive two meals a day on weekends today, even though the state budget is now flush. The TDJC used to have a policy of denying inmates dentures; they were forced instead to eat only soft food. This policy was only rescinded last year after it was reported in the media.

Nearly two dozen Texas inmates have died since 1998 of heat-related causes; about four out of five state prisoners are housed in units without air-conditioning, according to lawsuits and other reports. Whitmire told reporters he was not alarmed by the heat-related deaths—in his view, outfitting Texas prisons with air-conditioning was “unimaginable.” In 2017, a federal judge castigated the TDCJ, charging that it was “deliberately indifferent” to the risks posed by the heat.

Evidence of inadequate health care was an important part of the Ruiz lawsuit, yet even today Texas ranks toward the bottom in per capita spending on prison health care. Michele Deitch, an expert on prison conditions at the University of Texas at Austin, told the press earlier this year that the prison health care system in Texas has been “teetering on the edge of unconstitutionality” for several years “because it is so underfunded.”

Still, this cost-cutting doesn’t make much of a dent in prison spending overall. Most years, the TDCJ’s operating budget continues to hover around $3.3 billion in constant dollars, despite the modest drop in the state prison population over the last decade. This is not surprising. Most prison costs are fixed and not easily cut. Serious savings will only come by shutting down numerous penal facilities, laying off guards and other staff (which typically comprise about two-thirds of prison budgets), and then avoiding the escalating costs of an extensive monitoring regime, which can include home confinement, elaborate risk-assessment tools, electronic and GPS monitoring, widespread drug testing, and other means of surveillance that the private prison industry has been aggressively investing in and promoting to public officials.

For more than two decades now, in fact, Texas has been at the center of the push by conservatives to find profit centers in criminal justice—including the exploitation of penal labor. The expansion of prison-based industries could reverse the exodus of U.S. jobs to low-wage countries, they claimed, as well as offset labor shortages due to the crackdown on undocumented workers, and make penal facilities more self-supporting. In 1995, the American Legislative Exchange Council (ALEC), the powerful corporate-funded consortium of thousands of conservative legislators, began promoting its Prison Industries Act, which was modeled on a controversial bill that the Texas legislature had enacted to expand prison industries.

Even though Texas was required to face up to certain realities—first by the Ruiz case and later by budget constraints—the Texas penal system, after all these years, has not really changed its stripes.

Texas 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. The private prison industry has been an integral part of a broader conservative political movement in Texas, and nationally, to hollow out the government by turning public functions and services over to the private sector. Yet there is scant evidence that for-profit prison facilities and services save the government much money, and alarming evidence that they jeopardize the health and safety of inmates and staff. Some of the worst headlines about abuse in prisons have involved private facilities in Texas, including the $40 million-plus settlement against The GEO Group in the case of Gregorio de la Rosa, Jr., who was beaten to death by two fellow inmates as guards looked on and later tried to cover up evidence.

The county jail system in Texas has excess capacity these days, with only about two out of every three beds filled, thanks to a boom in jails built on spec by private firms with public bonds. Public and private county jails have sought to cover their losses by securing contracts to provide beds for inmates transferred from other counties and from overcrowded state prisons in Texas and other states. They also have entered the brisk and lucrative market in federal immigrant detention.

Texas leads the country in the number of immigrants held in privately run immigration detention facilities and local jails through contracts with the federal Immigration and Customs Enforcement agency. Over the past few years, immigrant detention for families has become the most profitable sector for the private prison industry, thanks to the policies of the Obama and Trump administrations. The private prison industry in Texas was among the greatest beneficiaries of the Obama administration’s decision to ramp up family detention on an unprecedented scale and demonstrate its toughness in the face of an uptick in migrant families from Central America seeking asylum in the United States. The controversies surrounding the Trump administration’s family separation and other immigration policies have spurred some local governments in Texas to terminate their immigrant detention contracts with the federal government, while others have sought to retain or expand these contracts.

Wrong on Crime

Meanwhile, despite the Right on Crime spin, Texas has been energetically divesting from the items proven to reduce crime and improve inmates’ quality of life: better education, good health care, adequate family planning, mental health, and social services, and living-wage jobs. Furthermore, Texas’s periodic budget shortfalls are not acts of nature but rather politically engineered crises by the very people hailed as leaders in penal reform.

To take just health care as an example of the interlocking systems of harshness, consider that Texas has been ground zero in the political and legal trench warfare against the Affordable Care Act (ACA). Texas maintains some of the toughest Medicaid eligibility requirements, second only to Alabama’s stringent rules. Opposition to the ACA and Medicaid expansion has been a nonnegotiable red line for leading conservatives. The Texas Public Policy Foundation (TPPF), the state’s most prominent conservative think tank, not only opposes Medicaid expansion under Obamacare, but has also advocated to turn the entire program into block grants for states to manage as they see fit without any interference from Washington.

Right on Crime was the brainchild of the TPPF, which has deep and long-standing connections to ALEC, the powerful conservative organization. TPPF is funded by a Who’s Who of conservative individuals, foundations, and corporations, including the Koch brothers, the Bradley Foundation, Exxon, and Big Tobacco.

For more than two decades now, Texas has been at the center of the push by conservatives to find profit centers in criminal justice—including the exploitation of penal labor.

This unwavering opposition to Medicaid expansion starkly calls into question claims by Right on Crime and others that fiscal concerns in Texas and elsewhere will force states to forge bipartisan coalitions to support pragmatic, non-ideological solutions to reduce the inmate population simply because they cannot afford not to. In opting out of Medicaid expansion under the ACA, Texas is leaving an estimated $114 billion in federal dollars on the table over the next decade and denying an estimated 1.2 million people in Texas federal health care through Medicaid. This works out to over $11 billion per year—or more than three times the TDCJ’s annual budget.

If Texas opted in, the TDCJ would receive an estimated $55 million to $120 million in federal funds for prison health care, which is about 10 to 20 percent of the roughly half a billion dollars it spends each year on health care for inmates. In their indictment against the ACA, congressional Republicans charged at one point that Obamacare helps incarcerated people. So much for being smart on crime.

What’s Right in Texas

While Right on Crime promotes a narrow, top-down, fundamentally conservative approach to criminal justice reform that tinkers around the edges of the carceral state, there’s a risk that some of the most promising developments in Texas and elsewhere for real criminal justice reform are being rendered invisible.

Compared to the prison-building boom years of the late 1980s and 1990s, Texas now has a number of powerful statewide and local organizations to counter the Texas District and County Attorneys Association and other law enforcement groups, which are the biggest obstacle to criminal justice reform. Groups that have been locked out for so long from political power in Texas are pushing back to claim their rightful place in policymaking and politics. The electoral and political mobilization of low-income people, people of color, and the people most hurt by the carceral state has, among other things, helped turn once-sleepy judicial and D.A. races into real political contests.

The failure of the Democrats to turn any statewide offices blue in the 2018 midterm elections has obscured the political earthquake that occurred in Texas last fall, when the rate of voter turnout surged to rival that of presidential years. Democrats flipped four important intermediate state appeals courts and now hold majorities on half of the state’s fourteen appeals courts. In Houston’s Harris County, the Democratic Party completed a sweep of all countywide races, ousting fifty-nine municipal court judges. Most of the victorious municipal judge candidates, including nineteen 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 twenty-seven-year-old Lina Hidalgo, an ardent champion of criminal justice reform, as its next chief executive. There were also major Democratic upsets in D.A. races in other urban areas, including Dallas, San Antonio, and Fort Bend.

Certainly these outcomes were part of the Beto O’Rourke effect (his challenge to incumbent Senator Ted Cruz helped energize Democratic voters), but that effect itself is part of a deeper political transformation in Texas that has radically changed the political landscape compared to thirty years ago, at the height of the prison boom, or even fifteen years ago, before mass incarceration became a national issue.

This is why leading conservatives, many of them associated with Right on Crime, have been at the forefront of efforts in Texas and elsewhere to suppress the vote through enhanced prison terms and fines for voter fraud, through voter intimidation, and through fights to control redistricting power: in order to maintain the white, Republican minority.

Uncritical promulgation of an elite-driven model of criminal justice 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. As Jane Mayer of The New Yorker has noted in looking at the particular role the Koch brothers play in criminal justice reform, there’s a strong strain of anti-government libertarianism at work—they distrust government power, and yet they have no affirmative vision for making life better for people being crushed. Participating in efforts like Right on Crime allows them to don cloaks of political reasonableness and moderation while they continue to pursue scorched-earth social and economic policies. Such an agenda serves to bolster, not build down, the carceral state in Texas and elsewhere.

Marie Gottschalk is a professor of political science at the University of Pennsylvania and the author of Caught: The Prison State and the Lockdown of American Politics.

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