GS PSCI 2306 CH 8 Texas-Sized Justice
The change in approach has already saved Texans millions of dollars at a time when the legislature is looking for places to cut money. It costs Texas roughly
$18,000 a year to imprison someone, not including medical expenses. While housing a felon costs about $47 a day, probation costs only $1.24 a day, supervised probation costs $3.74 a day, and treatment facilities range from $5.56 to $47 a day.26 The trend in Texas is consistent with national statistics, which show that twenty-six states saw their prison populations decline in 2009.
Texans also enact tough and unyielding laws, criminalizing more behaviors than other states.
A tendency persists to assume the accused are likely guilty, and Texans tend to be weary of complaints about prison conditions or a prisoner's access to health care. The result is that Texas today has one of the largest incarceration rates in the country and the world.
First, Texas, and more broadly, U.S. political culture, emphasizes retribution and just deserts approaches to criminal justice. These approaches lead to a higher number of acts that are criminalized compared to other countries and, as a result, high incarceration rates.
According to the International Center for Prison Studies, the United States currently holds more prisoners than any other country in the world. America imprisons more of its citizens than any other country in absolute terms and second behind the Seychelles when controlling for population. The United States contains around 4 percent of the world's population yet holds 25 percent of the world's prisoners. Currently, Texas has the fifth-highest per capita incarceration rate in the country, with 154,000 persons in prison.
As a corollary, punishment should be consistent across all offenders, with no or little room to take into account the individual circumstances of the crime or the person found guilty.
Another theory is that of incapacitation—that is, removing the guilty from society to prevent additional crimes. This theory holds that a certain number of those found guilty will ultimately be "career criminals" and should be removed from society for long periods of time.
Support for the death penalty in the state remains strong. While national polls indicate that 60 percent of Americans support the death penalty, a recent Texas Tribune poll indicates that 71 percent of Texans continue to do so.
As DNA evidence has increasingly revealed that innocent people in the United States have been put to death, national support for the death penalty has waned. More recently, budget crises have motivated some states to abolish the death penalty due to the expense associated with it. Texans not only continue to favor the death penalty at higher rates than the rest of the country but they do so despite that fact that only 51 percent of them believe the practice of it is applied fairly.
These approaches stand in contrast to the theory of rehabilitation: that the purpose of the criminal justice system is to reform the guilty into understanding why his or her conduct was wrong to prevent the offender from returning to a life of crime.
Crime is seen as a symptom of a social disease that requires treatment.13 This theory requires punishments to be tailored to the individual offender and focus on interactions between the individual and the wider society.
The business model of private prisons is based on continued increases in the prison population, and not surprisingly these entities have actively lobbied for longer sentences and tougher laws.
Critics of what they call the prison industrial complex argue that this trend is not really about privatizing. Private prisons are still paid for by taxpayer money and are thus not actually shrinking government. Instead, they are "giving a monopoly rent to a private contractor who then goes about the same business the state would have provided."37 One analyst has called this "faux privatization." The future of private prisons in Texas is unclear, particularly with the change in the business climate for such prisons that has accompanied the recent decrease in the prison population. This change means that a lot of companies that built new private prisons speculating on an ever-increasing prison population are now stuck with half-empty prisons. Some facilities have closed entirely.
Proponents of the death penalty in the state and elsewhere argue that it acts as a deterrent on crime. This argument manifests itself at the ballot box in the election of politicians, including state court judges in Texas, who are tough on crime.
However, opponents point out that states without the death penalty have lower murder rates than states that use it. One study by the New York Times concluded that ten of the twelve states without the death penalty have murder rates that are lower than the national average, whereas half the states with the death penalty have murder rates that are higher than the average.
The U.S. Supreme Court has recognized some significant limits on the death penalty.
In 2002, the Court ruled in Atkins v. Virginia that it is unconstitutional for the state to execute defendants who are "mentally retarded."50 In spite of that Court ruling, in 2012, Texas executed Marvin Wilson, who had an IQ of sixty-one, well below the cutoff point of seventy for "mental retardation."51 In response to Atkins v. Virginia, the Texas Court of Criminal Appeals had previously ruled that since "mental retardation" is subjective, it would add its own criteria. Among those criteria was the consideration of two questions: "Did the commission of that offense require forethought, planning, and complex execution of purpose?" and "Has the person formulated plans and carried them through, or is his conduct impulsive?" Based on the Texas interpretation of the Atkins decision, Marvin Wilson's execution went through, despite a national outcry.
Currently, possession of even a small amount of marijuana in the state is illegal. The costs to the Texas taxpayer are significant. Texans spend an estimated $378,820 a day for arrests and incarceration due to drug possession.21 Moreover, Texans are increasingly in favor of some form of decriminalization.
In a 2014 Texas Tribune poll, 28 percent of Texans favored legalization for medicinal purposes, 32 percent favored legalization for small amounts, and another 17 percent supported legalization of any amount of marijuana.22 Only 23 percent opposed legalization under any circumstance, which suggests that Texans, like the rest of the country, may be on the road to legalization.
Federalism in Action: Marijuana Policy Texans favor a justice system that's tough on crime, and social conservatives have long warned against the potential dangers of marijuana use. Yet one of the current significant trends across the country is a move away from the criminalization of marijuana.
Jacob Lavoro made national headlines in 2014 when he was arrested for making a batch of pot brownies. Although Lavoro used 2.5 grams of THC in his brownies, the Texas teen was originally charged for the entire weight of the brownies—one and a half pounds—which carried with it a maximum punishment of life in prison. The most significant change in Texas law to date came in 2006 when the state's legislature passed a law allowing local police to issue a citation and court date for possession without mandatory arrest. While cities such as Austin have decreased initial arrests, Dallas has continued to employ mandatory arrest for possession. In the 83rd legislative session, the state's legislature considered, but did not pass, changing marijuana possession to a class C misdemeanor. This change would have meant that Texans found guilty of possession would face a fine but not imprisonment. Although more Texans are embracing the notion of decriminalization, social conservatives still vehemently oppose any move toward legalization.
The right of the accused to have legal counsel has long been the tradition in Texas.
Long before the U.S. Supreme Court ruled in Gideon v. Wainwright that the Sixth Amendment to the U.S. Constitution entailed a right to counsel in criminal cases, that right was protected by the constitutions in Texas. Every Texas Constitution since 1836 has guaranteed the right to counsel to those who cannot afford it, a requirement called indigent defense.
A related issue is the willingness of Texas to execute the mentally ill. Consider Scott Panetti, who has been on death row in Texas for over twenty years for killing his mother-in-law and father-in-law in 1992.
Panetti has been hospitalized numerous times over a forty-year period for delusions, hallucinations, and schizophrenia. He represented himself at his initial trial in 1995 and demanded testimony from Jesus Christ, John F. Kennedy, and the pope. Panetti believes the gold filling in his mouth is a Bluetooth device, that singer-actress Selena Gomez is his daughter, and that CNN reporter Wolf Blitzer has his prison ID card.
Privatization of Prisons One way Texas has tried to deal with its increasing prison population is by embracing the private prison option. In the 1990s, Texas firmly got on board the privatization movement, and it currently leads the country in utilizing privately run prisons. By the end of 2014, over 14,000 prisoners in Texas were housed in private prisons, representing 8.7 percent of Texas's prisoner population.
Private prison : a private, for-profit prison corporation that staffs and runs prison facilities in a state
Justice in Texas Texas has a reputation of being tough on crime, and most Texans prefer it that way. Even before Texas was independent, keeping the peace along the frontier was fraught with danger. Comanches, Wichitas, Caddos, and other native tribes faced loss of land and bison as Anglo settlements increased rapidly.
Settlements in Texas lacked much in the way of formal law enforcement. Instead, Texans learned early on to fend for themselves, a way of life referred to as frontier justice. It is not surprising, then, that the political culture that developed in Texas is one that is tough on crime and romanticizes vigilante justice. The belief that people should be able to take care of problems on their own persists in modern-day Texas.
As of 2014, the Texas prison incarceration rate was 600 inmates per 100,000 residents.17 If Texas were a country, it would rank fourth in incarceration rates, below Seychelles and St. Kitts and Nevis; Texas would be above Iran, China, and Russia.
Texas further has nearly 400,000 people on probation in the state and another 111,000 on parole.19 This high rate of incarceration in Texas reflects our political culture's demands for politicians and policies to be tough on crime. The result is Texas policies that tend to criminalize more types of behavior and favor tougher sentences than policies of other states. In addition, in the last two decades, the state's population has increased, and stiffer immigration and drug laws have combined with this growth to produce a glut of potential prisoners.
One of the most significant changes to the Texas prison system was the national movement to adopt stiffer drug laws in the 1970s and 1980s. At the national level, President Richard Nixon declared a war on drugs, created the national Drug Enforcement Agency, and called for a national policy to address drugs in the United States. States followed suit, most notably New York, which under Governor Nelson Rockefeller adopted automatic stiff penalties for possession of small amounts of drugs.
Texas's preference to be tough on crime meant that the state was eager to follow suit. The Texas Legislature adopted stiffer antidrug laws, harsher penalties for possession, and stricter guidelines for probation and parole.20 The war on drugs directly led to a proliferation of people incarcerated in the state.
Texas has made other changes to decrease its spending on criminal justice during the severe budget shortfalls in recent years. In 2011, Texas prisons stopped serving lunch on the weekends, estimating that serving two meals a day instead of three would help save the state $2.8 million.
That same year, Texas ended the tradition of granting last meal requests to individuals about to be executed. The state legislature also voted to close a state prison for the first time in the state's history. From 2011 through 2015, the state experienced declines in the number of individuals in Texas prisons, a drop of over 7,500 prisoners or a 1.3 percent decline.
Tort reform in Texas began with legislation in 1987 and again in 1995 that imposed limits on the amount of damages litigants could collect. In 2003, the Texas Legislature passed the most sweeping tort reform legislation, limiting the amount of noneconomic damages (i.e., pain and suffering) in civil suits to $250,000 for a physician or hospital.
The goal was to stop frivolous lawsuits. Supporters of the law said the limit would lead to less lawsuits and lower insurance costs for doctors. Those lower costs would be passed on to the average Texan. Opponents of tort reform argued that the $250,000 cap would also discourage genuine claims and deny Texans their constitutional right to a jury trial. Since the Supreme Court of Texas had previously ruled that such limits were unconstitutional, the same legislative session approved a constitutional amendment allowing the legislature to set such limits.
Tort Reform One of the biggest changes in justice in Texas occurred as a result of changes in tort law. Tort law allows individuals who have been wronged due to negligence or malpractice to sue for damages.
The idea of tort law is to protect individuals against companies, government, or other individuals' wrongful action that results in injury. The difficulty in tort law is to balance the needs of individuals who are wrongfully injured against frivolous lawsuits that cost business, and in turn consumers, a lot of money. In the 1980s, Texas saw a surge of malpractice suits with large settlements, including a dramatic rise in medical malpractice, which drove up malpractice insurance rates for doctors in the state. This led to a decrease in the number of doctors in the state, and, by 2003, Texas ranked forty-fourth out of the fifty states in the ratio of doctors to citizens. However, tort reform below had rebounded the state only to forty-first out of the fifty states by 2014.
Shift to Rehabilitation At the start of the 2007 legislative session, Texas was faced with the need for over 17,000 new prison beds, which would cost $1.6 billion by 2012. State representative Jerry Madden (R-Richardson) and state senator John Whitmire (D-Austin) proposed a shift in the Texas approach.
Their proposal moved away from Texas's traditional approach of punishment and toward rehabilitation, which requires the allocation of resources to alternative types of treatment and correction. In that year, the legislature allocated money for 8,000 treatment beds, which gave judges the option of putting certain types of offenders in much-needed drug, alcohol, and mental health treatment facilities rather than in prison.23 A majority of those in Texas prisons are nonviolent offenders, and the new approach opened up halfway houses and created specialty courts, such as drug courts and veterans' courts, which replaced a long prison stay with mandatory treatment.
Historically, these rights in the Texas Constitution ensured that Texans received a similar set of rights in state courts that they were guaranteed in U.S. courts.
These include the writ of habeas corpus, protection from double jeopardy, and the due process of law. Texans are also assured of the right to bail in criminal cases, with noted exceptions depending on the seriousness of the alleged crime.
However, the victims of crime are also guaranteed certain rights in the Texas Constitution in Article 1, section 30. This section was added and amended to the state constitution in 1989.
These rights include the right to dignity and privacy during the trial; protection from the accused; the right to present in court; the right of restitution; and the right to information about the conviction, sentence, imprisonment, and release of the accused. In the last set of rights of victims, these provisions allow the family and friends of murder victims to be present at the killer's execution. The emphasis on victim's rights is in some ways an extension of retribution. By allowing the victim to attend court and even the execution of the accused, the victim or the victim's family participate in the state's retribution and punishment of the accused. However, these rights are also consistent with a move, if ever so small, toward restorative justice, allowing the victim and their family to participate in the process to achieve a sense of closure on a traumatic part of their lives.
In addition, private prisons based in Texas often have contracts with other states, meaning violent criminals from those states are transferred to Texas. Defenders of privately owned prisons argue the costs for the state are significantly lower than locally or state-run facilities.
They often point to jobs created by private prisons, which are built in rural areas of the state. Opponents point to the poor conditions, underpaid and poorly trained guards, and high-profile scandals involving the largest private prison corporations. Because these prisons are motivated by profit, providing adequate facilities and services to the prisoners often takes a backseat to the bottom line. Moreover, research suggests that the few jobs created by a private prison facility are outweighed by negative job growth, as private prisons have actually impeded economic growth overall. In addition, critics contend that inmates moved to private facilities from other states and faced with the poor conditions at the private prisons are often more likely to be clinically depressed and are less likely to have access to family or other visitors, making rehabilitation more difficult and recidivism more likely. Recent years have seen a slight decline in the use of private prisons in Texas, including the closure of at least one facility.
Texans' fascination with the need to punish the guilty reflects a tradition of emphasis on several approaches to criminal justice. This need to punish the guilty often focuses on retribution theory—punishment is justified because it is deserved.
This eye-for-an-eye approach sees the rules of society as reflecting a moral order; violating those rules requires one to be punished. This theory approached the criminal justice system as one of vengeance; with social factors like income and education or relative deprivation as irrelevant, so, too, is social change. A related approach is "just deserts," which views the purpose of criminal justice systems to inflict a punishment proportionate to the crime, with a scale or gradation of offenses, with the most serious punishments associated with the most serious crimes.
The average time spent on death row is slightly over ten years, although the longest time spent there was twenty-four years. In 1992, a Dallas Morning News study estimated that taxpayers pay $2.3 million for the average death penalty case in Texas, compared to $750,000 to imprison someone in a single cell at the highest level of security for forty years.
This higher cost comes in every case, even those in which the death penalty only might be imposed. The cost of the death penalty, coupled with the comparatively large number of executions in the state each year, places a significant burden on Texas's taxpayers.
Capital Punishment In 1923, Texas adopted the electric chair (referred to as "Old Sparky") as the state's official method for carrying out capital punishment. Prior to the 1920s, hanging was the preferred method of state execution. In 1972, the U.S. Supreme Court ruled that the imposition of capital punishment amounted to "cruel and unusual punishment" since its selective application violated due process.
Up to that point, Texas had electrocuted 361 people. Following the Court's ruling, some states, including Texas, began to change their procedures to make them less arbitrary. The most significant change was the adoption of a two-stage process: first, guilt or innocence is decided, then, where a guilty verdict has been pronounced, appropriate punishment is decided separately. By the time Texas implemented its new procedures for imposing the death penalty, lethal injection had become its official means of execution.
Incarceration rate
a calculation of how many prisoners a state has per 100,000 people, which controls for population size
Recidivism
a former inmate's resumption of criminal activity after his or her release from prison
A final theory is that of restorative justice, which views crime as
a fundamental break in society and the offender, with an overriding need to heal victims, communities, and offenders. All three must be actively involved in the justice process to bring closure to all three while simultaneously placing the offender in society, under social control, with appropriate social support.
Tort
a wrongful act by a person that results in injury to another person or property in civil law
Another long-term complaint has been the lack of air-conditioning in most Texas prisons. Of Texas's state prisons, only twenty-one of them are completely air-conditioned. Most prisons in Texas do not have
air-conditioning in the cells. That means that prisoners are held in their cells, even when the temperature reaches triple digits, without windows and without any means of escaping the heat. Prison officials' records indicate that the heat index in prisons can top 150 degrees in the summer, which is dangerous for both the prisoners and the prison staff. After four inmates died of heat-related illnesses in 2011, a 2012 lawsuit was filed in federal courts arguing that the conditions are inhumane. A study by the University of Texas (UT) Law School's Human Rights Clinic agreed, arguing that these conditions, which have led to at least fourteen deaths since 2007, constitute cruel and unusual punishment.30 In 2014, the state installed coolers in seven of its prisons, though state officials continue to reject the assertion that heat in the prisons poses a threat to inmates. By 2016, reports indicated that 70 percent of Texas's prisons still lacked air-conditioning. The U.S. Fifth Circuit Court of Appeals in New Orleans began to signal that the lack of air-conditioning was a form of cruel and unusual punishment in a case that originated from the lack of such air-conditioning at Louisiana's infamous Angola Prison.
For decades, prisoners in the state have complained about lack of timely medical care. As the state faced a budget crisis in recent years, the 82nd Texas Legislature cut spending on prisoner health care by $75 million. At the same time, health care costs have
been rising, both in general and for Texas prisons, particularly as the prison population is graying. Elderly prisoners, who make up 8 percent of the prison population, take 30 percent of the health care budget. This has led some in Texas to advocate releasing them. The chair of the Texas Senate Committee on Criminal Justice, John Whitmire, argued that "in times of fiscal concern, we're spending $1 million or more on inmates who can't get out of bed or are really sick individuals. It's just nuts."29 Nonetheless, the Texas Board of Pardons and Paroles has so far been reluctant to consider this option for most aging prisoners.
The Supreme Court stepped into this issue several times in the last decade or so, forcing states to drop support for the juvenile death penalty and eliminating life without parole sentences for minors. This has forced the state of Texas to
change its laws and practices, including what to do with individuals like Scottie Forcey, who was convicted of shooting and killing Karen Burke, a convenience store clerk, in Alvarado in 2009. Forcey at the time was seventeen when he committed the crime and received a life sentence without parole. He will now be eligible for parole after forty years in prison.
Rights of the Accused In the United States, our criminal justice system is rooted in the strongly held belief that people are innocent until proven guilty. This means that individuals accused of crimes have certain rights. In the Texas Constitution, many of these rights are
contained in Article 1, section 10, which states, in part, the following: In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof. He shall not be compelled to give evidence against himself, and shall have the right of being heard by himself or counsel, or both, shall be confronted by the witnesses against . . . and no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury.
The death penalty enjoys widespread support in Texas, and the state leads the nation in the
execution of criminals annually. Texas in the past has executed women, juveniles, and the mentally ill.
Debates surround the heinousness of certain crimes like premeditated murder, the appropriate forms of punishment (e.g., the death penalty), and the ability of those accused and found guilty of understanding the seriousness of their actions and the consequences of their actions. In 1643, the
first youth was executed in the English colonies in Plymouth, Massachusetts. Between 1642 and 1973, almost 350 youth were executed in the United States, with half of those executed being between ten and fifteen years of age.2 Since 1973, Texas has executed twelve minors, all age seventeen when the crime they committed occurred. None were executed prior to the age of twenty-four years of age.
Texas prisons have also received national attention for having some of the highest instances of prison rape in the country. Although compiling good data on prison rape is notoriously difficult, as inmates are often threatened if they report rape, Texas had
five of the ten prisons with the highest instances of prison rape, according to a U.S. Bureau of Justice survey.32 The Texas Department of Criminal Justice points out that official rape complaints for the same year were actually much lower than the Bureau of Justice estimated. While issues such as food, medical care, air-conditioning, and rape all raise concerns about cruel and inhumane treatment within Texas prisons, Texans and Texas lawmakers generally remain unsympathetic.
In the court case In re Gault (1967) the U.S. Supreme Court accepted a minimum age of
fourteen for individuals to be treated as an adult for trial.1 In the realm of American civil society, a person is mature enough to operate and drive an automobile with his or her own license at the age of fourteen to eighteen depending on the state. One can serve in the military and vote at age eighteen, and alcoholic beverages may be purchased and consumed at age twenty-one. In contrast, modern neuroscience finds that the human brain does not reach full development until about the age of twenty-five. The last areas to develop in the brain are those areas associated with moral reasoning and judgment.
Law and Punishment What happens when Texas's ideas of rugged individualism and "pull yourself up by your bootstraps" attitude meet its keen sense of right and wrong? Individual responsibility has always been central to Texans' strong sense of justice. Yet, as a state, we struggle with
how to balance protecting individual rights against preventing the behavior of individuals who might take advantage of the system. As we will see, when Texans' sense of right and wrong collides with the rights of individuals, the rights of individuals often lose. Justice remains highly valued and sometimes requires harsh punishment. Texans feel justified in using lethal force to protect their homes, which is the ultimate manifestation of frontier justice. They also prefer the use of capital punishment as the most efficient means of retribution for the most serious crimes. The movement toward tort reform represents a desire to avoid frivolous lawsuits that upset Texas's sense of justice. Texas justice seems harsh to observers outside the state, but to most Texans, the punishment fits the crime.
Today, the Texas Rangers are a highly professional and modern law enforcement organization that has been part of the Department of Public Safety since 1935. Perhaps less colorful than many of their predecessors— and their television and cinema image—today's Rangers are trained to
meet the demands of a high-tech state. The Rangers include 144 commissioned officers, twenty-four noncommissioned administrative support personnel, a forensic artist, and a fiscal analyst. Rangers assist local law enforcement with criminal investigations, help with the suppression of major disturbances, and conduct special investigations. While twenty-first-century Texas Rangers may look little like their predecessors, they still abide by the creed set down by Captain McDonald: "No man in the wrong can stand up against a fellow that's in the right and keeps on a-comin."
In practice, Texas political culture has not been overly supportive of the rights of the accused, and the ability to get a decent defense has varied greatly across the state. In 2001, Texas passed the Fair Defense Act, which requires
minimum standards for defense lawyers, the prompt appointment of lawyers, and financial resources to hire experts and investigators in indigent cases. Only eight counties in Texas have created a county public defender's office within the structure of county government. A public defender's office is an agency of the county government that provides legal counsel to those accused of a crime and cannot afford a lawyer. Another three counties (Collin, Lubbock, and Travis) provide a public defender system for cases in which the accused has some mental health issue that has an impact on the case. Three counties in Texas are headquarters for regional offices in which multiple counties have pooled resources to support public defenders' offices. These regional offices include Bee County and cover an additional three counties; Bowie County, which also services Red River County; and Lubbock County, which services another ten counties.
A few years after Atkins, in Roper v. Simmons, the U.S. Supreme Court further ruled that juveniles could
no longer be subject to the death penalty. The case of Scott Panetti, discussed briefly in the opening of this chapter, led to the follow-up case that requires the individual to be executed have a "rational understanding" of why he or she is to be executed. This is a requirement that applies to juveniles and adults.
In 2011, the Texas Legislature passed additional tort reform, the so-called loser pay law, which requires certain litigants who lose their lawsuit to
pay the legal costs of the person who was sued. Litigants will also have to pay if they turn down a settlement offer and the final jury award is less than the settlement amount offered. This law further permits the Supreme Court of Texas to establish guidelines for judges to dismiss what appear to be frivolous lawsuits (under $100,000) earlier in the process, to avoid the costly trial. The law allows for a motion to dismiss the lawsuit at the beginning of the process, and if the judge grants that motion, the plaintiff will have to pay the fees associated with the lawsuit.
The state may implement the death penalty if a person is found guilty of the murder of a
public safety officer, firefighter, correctional employee, or a child under the age of six, or if the person is found guilty of multiple murders. Other actions that may invoke capital punishment include committing murder during a kidnapping, burglary, robbery, sexual assault, arson, or prison escape; committing murder for payment; or murdering a prison inmate serving a life sentence for murder, kidnapping, aggravated sexual assault, or robbery. The decision to implement the death penalty occurs at the local level. The district attorney must seek the death penalty, and the jury determines whether or not the death penalty is warranted in the punishment phase of the trial. In Texas, application of the death penalty is not consistent across the state. Instead, the largest urban centers account for the lion's share of death penalty cases, with approximately 23 percent of all such cases since 1976 occurring in Harris County and another 10 percent in Dallas County. Only four counties—Harris, Dallas, Tarrant, and Bexar—have accounted for around 46 percent of all executions in the state since the death penalty was reinstated.
A recent Texas A&M study found that states that passed castle doctrines saw an increase in the number of justifiable homicides, murder, and manslaughter rates while
realizing no deterrent effect. Texans will continue to grapple with the appropriate balance between protection and the taking of a life.
The underlying idea of the change in approach is that expensive prison stays should be reserved for violent criminals rather than those with substance abuse problems. Rather than focusing on punishment, the shift toward
rehabilitation is designed to reduce recidivism, or a return to crime after release from prison. The Texas mantra of being tough on crime is being replaced with the idea of being smart on crime.
A key difference between the two states is that Texas regularly carries out the death penalty as a punishment while California does not. However, even though Texas has executed more persons than California since 1976, California has actually
sentenced more people to death as the punishment for a crime. Several explanations exist for this difference in the rates of execution over time. First, prior to 1976, Texas and California each had executed over 700 individuals. Although both states reinstated the death penalty at approximately the same time, Texas began executing prisoners again in 1983. California did not execute a prisoner until 1992. Simply put, since reinstating the death penalty, Texas has been executing prisoners for a decade longer.i The reason for this involves the markedly differing natures of the two states' court systems in their orientation to the death penalty. The California court system focuses on minimizing error to ensure that an innocent person is not put to death. In contrast, the Texas court system focuses on a speedy process and in so doing accepts a higher possible rate of error. As a result, California's appeals process requires both more time and more money be spent on it.ii The states also differ in their funding of a public defender system. California has a statewide public defender office that represents some death row inmates; Texas relies on pro bono work or contracts with local or regional lawyers.
Prison Conditions The political culture in Texas tends to be largely unsympathetic to the conditions inside the state's prisons. Texas has long had the reputation as having one of the toughest prison systems in the country. A 1972 case filed on behalf of Texas prisoners represented a second change that enlarged the prison system. In Ruiz v. Estelle, Texas prisoner David Ruiz filed a handwritten suit against
the director of the Department of Corrections, William Estelle, claiming that conditions in the Texas prison constituted cruel and unusual punishment. Ruiz alleged harsh conditions that included lack of adequate medical care, overcrowded conditions, and insufficient security. At that time, Texas prisons were undermanned and prison staff often relied on prisoners to keep other prisoners in line. Judge William Wayne Justice eventually ruled that conditions in Texas prisons were unconstitutional and ordered federal oversight of Texas prisons for the next two decades. The Ruiz decision ushered in the most broad sweeping prison reforms to date. One of the state's responses to this federal intervention was to spend the 1980s building prisons. At the time Ruiz was filed, Texas had eighteen prisons. Today there are over 110 prisons in the state, including parole facilities and medical facilities dedicated just to inmates. The prison population ballooned, however, and Texas could not build prisons fast enough.
Castle Doctrine Consistent with Texas's culture of frontier justice, since 2007 the state has had a fairly permissive castle doctrine (Texas's version of the stand-your-ground doctrine). The castle doctrine derives from English common law and is based on
the idea that deadly force is sometimes necessary to defend your castle. In 1973, the Texas Legislature passed a law that deadly force could be used so long as a reasonable person would not have retreated. However, in 1995, and more recently in 2007, the legislature broadened the castle doctrine and removed the duty to retreat. According to the Texas Penal Code (Section 9.01), use of deadly force is permitted in one's home, vehicle, place of work, and anywhere "a person has a right to be present." The law presumes the reasonableness of the use of deadly force. Castle doctrine Texas law that allows the use of deadly force to defend your home, or "castle"
Indigent defense
the requirement that governments provide legal counsel to those charged with serious crimes who cannot afford representation
Panetti's case eventually went to the U.S. Supreme Court, in which the high court ruled that criminal defendants sentenced to death cannot be executed unless they understand the reason for their imminent death. However, the court left it up to
the states to determine when an inmate has a "rational understanding" of their punishment. While Texas courts have attempted to interpret the language broadly, the state continues to hold Panetti in a kind of limbo, with the state continuing to hold Panetti yet denying any funding to provide an up-to-date examination of his mental competency.
