When members of Texas’ Board of Education recently voted to eliminate “justice” from the list of terms schoolchildren have to master – in addition to elevating Rush Limbaugh to the pantheon of historic luminaries – they unleashed another salvo in the country’s ceaseless culture wars. Yet they also, perhaps inadvertently, brought the curriculum in line with the state’s inequitable social order. With its laissez-faire corporate climate and anemic human services (the state leads the nation simultaneously in carbon emissions and children without health insurance), Texas may be “wide open for business,” but it has always had an uneasy relationship with Lady Justice.
Nowhere is this clearer than in the state’s criminal justice system, which has historically privileged ferocity over fairness, revenge over rehabilitation. According to a new survey by the Pew Center on the States, Texas now has the largest penal system in the nation with 171,000 inmates, having surpassed California, which draws from a population 33 percent larger. Weak protections for indigent defendants; hard-line, elected judges; and a mile-long scroll of 2,324 separate felony statutes have produced convicts by the busload. And because Texas inmates serve protracted sentences in un-air-conditioned facilities, are forced to work without even token remuneration and report the highest rate of sexual assault in the nation, their conditions of confinement are especially bleak. One measure of Texas’ severity is its frequent rebuke by the generally conservative US Supreme Court, especially in death penalty cases, which Texas pursues to finality more aggressively than any other jurisdiction. Just last month, the court stepped in to stop Texas from executing Hank Skinner without conducting DNA tests that could prove his innocence.
The Lone Star State’s harsh approach to crime and punishment has a long history. Its law enforcement traditions date back to ethnic cleansing of Indians and Mexicans by the Texas Rangers. Its penal infrastructure took shape on cotton and sugarcane plantations in the wake of emancipation. When racist “black codes” started turning former slaves into felons, Texas and other southern states decided against erecting new penitentiaries. Instead, they turned to a loophole in the 13th Amendment, which prohibits slavery and involuntary servitude “except as a punishment for crime.” In the nation’s first experiment in fully privatized penality, they started hiring out their prisoners to the highest bidder. Known as convict leasing, the practice lasted for decades and made a fortune for planters, railroads and mining companies, but at a price: whipping and starvation scandals, prisoners driven to exhaustion, even death.
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During the progressive era, state governments reasserted control over their prisoners, but the labor and disciplinary practices handed down from slavery continued. In Texas, forced field labor and routine beatings by convict guards persisted into the 1980s (Ruiz v. Estelle). When I started my research on Texas prisons, I was struck by the sight of convict work gangs, comprised mostly of young blacks and Latinos, trudging out to the cotton rows each morning supervised by armed white men on horseback. An officer told me his first day on the job was like “traveling in a time machine back to the Old South.”
This plantation-based punishment ethos I call “Texas Tough” made the state an outlier for much of the 20th century. Penal systems like Texas’ “should not be tolerated in any civilized community,” concluded one federal survey. But during the turbulence of the civil rights era, Texas’ barbarism became a beacon. Corrections delegations from across the country flocked to Huntsville to study the state’s highly regimented, economical “control model.” Two directors of the state’s prison bureaucracy were elected president of the American Correctional Association. Although progressives had hoped Texas’ criminal justice system would become more treatment oriented, in fact, American criminal justice became more punitive, more like Texas.
Across the country, but especially in the South and Sunbelt, prisons not only got meaner but larger. Starting in the late 1960s and accelerating in the 1970s, ’80s and ’90s, lawmakers shifted discretion from judges to prosecutors, extended sentences, most notably for drug offenses and curtailed parole. Imprisonment rates shot skyward, quintupling in 30 years. By the start of this century, the US was locking up one out of every 100 adults (one out of every 71 in Texas), a larger portion, by far, than any other country, including dictatorships like China. In total, 2.4 million Americans now reside behind bars, more than the populations of Boston, Washington and San Francisco combined.
This expansion and hardening of American criminal justice has had less to do with crime, which mostly fluctuates independent of incarceration rates, than politics. Defeated on civil rights, white southern conservatives turned to law enforcement to discipline the emergent social order they had feared and fought against. Dixiecrat Strom Thurmond had warned, “integration of the races” would generate a “wave of terror, crime and juvenile delinquency.” When integration became a reality, he and other southern reactionaries pioneered legislation that augmented police authority, hemmed in federal judges and ramped up criminal penalties. As Texas removed the last discriminatory statutes from its books in 1969, lawmakers simultaneously restricted inmate early release, approved adult sentencing for juveniles and funded new prison construction. In essence, policymakers institutionalized the views of Texas’ US Sen. Joseph Bailey, who once admonished, “I want to treat the Negro justly and generously as long as he behaves himself and when he doesn’t I want to drive him out of this country.”
With crime rates rising as baby boomers came of age, and with cities igniting in the long, hot summers, enterprising politicians in the GOP soon realized they could break apart the Democrats’ New Deal coalition with the rhetoric of “law and order.” As Barry Goldwater first demonstrated – clearing the way for more successful campaigns by Nixon, Reagan and both Bushes – Republicans could rally anxious, angry, white Democrats in the previously “solid South” not by talking explicitly about race, but by railing against soft judges, usurpations of states’ rights, welfare cheats and “criminal predators.” This “southern strategy” helped propel “the conservative resurgence” (another addition to Texas’ social studies standards) that reworked America’s political landscape in the latter third of the 20th century. Its echoes can be heard at Tea Parties in the 21st century.
The new right’s wars on crime – aided and abetted by centrist Democrats who threw criminal defendants to the wolves to stave off Willie Horton-style attack ads – has had a pronounced racial impact. At the height of segregation, the black imprisonment rate was four times higher than for whites; now, it is seven times higher. Once 60 percent white, America’s prison population is now 70 percent nonwhite. Fifty-five years after Brown v. Board of Education, black men in America are more likely to go to prison than graduate from college. In the post-civil rights era, Jim Crow has moved behind bars.
The economic downturn, combined with the election of Barack Obama – a civil rights triumph inconceivable even 20 years ago – provides an opportunity to reckon with a prison colossus that consumes $70 billion a year, but pays meager dividends in public safety. This spring, the president is expected to sign breakthrough legislation to reduce, if not eliminate, racially divisive sentencing disparities between crack and powder cocaine. In California, cash-strapped lawmakers are struggling to release 40,000 inmates to comply with federal court orders on crowding and substandard medical care. In Texas – still the most locked-down state in the nation – probation and parole reforms signed reluctantly by Gov. Rick Perry have contributed to a slight decline in the state’s inmate population for the first time since 1969.
After 40 years of tough talk on crime, from “law and order” to “three strikes,” there are scattered signs that America’s carceral counterrevolution has run its course. But if “the arc of history” is to bend once more toward justice, as Obama suggested in his victory address, more than modest, budget-driven reforms would be required. An epic freedom movement was required to dislodge Jim Crow segregation, which developed in the backlash against emancipation and reconstruction. Another may be needed to dismantle mass imprisonment.