Dawson State Jail
Patrick Michels

Right (and Wrong) on Crime

For all the praise heaped on Texas for criminal justice reform, we’ve barely even begun the thaw.


A version of this story ran in the February 2015 issue.

Above: Tall and imposing, the now-shuttered Dawson State Jail offers an ominous greeting into downtown Dallas.

In January 2014, Rick Perry flew to Davos, Switzerland, to participate in the World Economic Forum—just the kind of cerebral gathering of global Thought Leaders that Perry has favored after his disastrous presidential run. Maybe it was the thin Alpine air, but Perry made international news when he expressed some tentative interest in decriminalizing marijuana. Sharing a stage with former U.N. Secretary-General Kofi Annan and Colombian president Juan Manuel Santos, Perry said he thought states should be able to experiment with drug policies (10th Amendment rah! rah! rah!) and held Texas up as a model for relaxing marijuana laws.

“[A]fter 40 years of the war on drugs, I can’t change what happened in the past,” he said. “What I can do as the governor of the second-largest state in the nation is to implement policies that start us toward a decriminalization and keeps people from going to prison and destroying their lives, and that’s what we’ve done over the last decade.”

Lost in the gee-whiz coverage of Perry’s remarks was the niggling fact that the Legislature wouldn’t meet again during his tenure as governor, and that over his four terms, he’s done very little to reform Texas’ draconian drug laws. During America’s 40-year drug war, he’s been governor for 14. Plenty of time to “keep people from going to prison and destroying their lives.” Yet, I’m hard-pressed to think of a single policy he’s responsible for that has moved us closer to decriminalization. (He gets some credit for not standing in the way of legislative efforts to create drug courts.)  Kudos to the Mexican reporter moderating the Davos panel who pointed out that Texas still has one of the highest incarceration rates in the world. (According to the Prison Policy Initiative, only four other U.S. states are worse. Texas’ rate actually went up slightly between 2012 and 2013. And if we were a country, our nearest competitor would be Cuba, with just half our incarceration rate.)

“I haven’t been governor of Texas forever,” said Perry.

“Well, 13 years is a pretty long time,” the reporter replied.

You don’t even know.

Why bring this up now? While Perry’s apparent change of heart is a welcome departure from the usual Tuff on Crime talk that’s dominated Texas for decades, he’s said little about it since, even as his Perry 2.0 tour (Smarter! Humbler! Seriouser!) continues. Perry wants to take credit for a tiny softening in his rhetoric just in time for another presidential run, after 14 years of enthusiastic prison-building, border militarization, executions and wildly disparate treatment of black, brown and poor folks. Gimme a break.

But I don’t just want to pick on Perry. For all the praise heaped on Texas for criminal justice reform, we’ve barely even begun the thaw. True, there have been a handful of prison closures and our incarceration rate has dropped 18 percent from 2000 to 2013 (though the total number of prisoners has climbed).

Incarceration rate, Texas and U.S.
Texas’ incarceration rate has dropped but is still well above the national average.  Bureau of Justice Statistics
Texas prison population, 1978-2013
Texas’ prison population remains stubbornly high, one of the largest ones in the world.  Bureau of Justice Statistics
Incarceration rate (multi-state)
While Texas’ incarceration rate has fallen steeply since 2000, we still lag other big states like California and much less punitive places such as Minnesota. Thank God for Louisiana.  Bureau of Justice Statistics

We’ve also made some truly meaningful progress on exonerating the wrongfully convicted and establishing drug courts that emphasize treatment over imprisonment—a point that Perry underscored in his farewell speech at the Legislature last month. The conversation has inarguably shifted, with conservatives—under the Right on Crime banner—now applying some fiscal discipline to the out-of-control prison budget.

That will only get us so far though. One of the inconvenient facts about our vast criminal justice machine, our archipelago of hellish prisons with their solitary confinement units and sweltering summer heat, not to mention our militarized police units and $86 million border “surge,” is that we can afford them. Only 10 percent of the state’s discretionary spending goes to public safety and criminal justice. The border operation is being paid for, in part, out of unspent disaster funds. Worse, many courts, cops and DAs are addicted to the revenue streams generated from discredited facets of the drug war such as Texas’ ludicrously unfair civil asset forfeiture laws. There are just not that many financial incentives to dismantle the prison-industrial complex.

The vision of the budget hawks extends not far beyond the balance sheet. These are the same folks who also zealously pursue prison privatization and often support draconian border enforcement policies that are driving a massive expansion of for-profit immigrant detention centers, many of them in Texas.

The moral arc of the universe is long but it bends toward justice—not lower spending.

We should acknowledge that deep, abiding reform must be based on fundamental notions of racial and economic justice.

Texas’ brutal and punitive criminal justice system is rooted in slavery and economic exploitation of the most vulgar kind. Our prisons are built on the back of Jim Crow. Plantations are not dismantled by cost savings or pilot programs. They’re toppled by rejecting the base impulses that have created a state in which progress seems forever in the distance.