Criminal Justice

Grade: B

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The dismantling of a prison unit in suburban Houston in 2011. (AP/Pat Sullivan)

At first glance, Governor Perry is as tough on crime as they come. Not only has he signed off on more executions than any other governor in modern U.S. history (276 at last count), but he has also defended the right to use the death penalty in controversial cases, such as when he denied clemency in 2004 to Kelsey Patterson, a mentally ill man whom the Texas Board of Pardons and Paroles, in a rare move, had deemed worthy of mercy. When asked about capital punishment during a 2011 Republican presidential debate, Perry offered a full-throated endorsement. “If you come into our state and you kill one of our children, you kill a police officer, you’re involved with another crime and you kill one of our citizens, you will face the ultimate justice in the state of Texas, and that is, you will be executed.”

But take a closer look, and Perry’s views on criminal justice are more nuanced. A bill Perry signed in 2005 that allows juries in capital murder trials to consider life without the possibility of parole has dramatically reduced the number of people who are sentenced to death. (Jurors previously had to choose between death and life with parole, making them far likelier to pick the former.) The law has profoundly changed the future of capital punishment in a state that has had more executions than any other. In 2002, which was the high-water mark for death sentences during Perry’s tenure, 37 people were convicted and sent to death row. Last year, the number dropped to 9.

Criminal justice reform has never been one of Perry’s top priorities, but as members of his party became interested in recent years in curbing the ballooning cost of incarceration, Perry signed dozens of reform-minded bills. He authorized legislation that established drug courts around the state, which emphasize treatment for certain drug-addicted offenders rather than prison time, and diverted funds from prison construction to enhancing probation, parole, and treatment alternatives. The subsequent reduction in the number of inmates has resulted in the closure of three prisons—a radical departure from the days of Ann Richards and George W. Bush, who oversaw a massive prison buildup around the state. “I think Perry came to see that Texas was going to break the bank if it didn’t get smarter on criminal justice policy,” said Marc Levin, the director of the Center for Effective Justice at the Texas Public Policy Foundation. “Rather than spending money on building more prisons, he saw that we should be spending it on proven alternatives like mental health and substance abuse treatment.”

Though many people scratched their heads when Perry announced in January at the World Economic Forum in Davos, Switzerland, that he supported the decriminalization of marijuana use, he had already acknowledged that he did not believe incarceration was always the best route for nonviolent offenders. Back in 2007, Perry signed legislation allowing police officers to issue citations instead of making arrests for certain misdemeanors, including marijuana possession. And back further still, in 2003, he supported a bill that mandated probation for first-time drug offenders caught with less than a gram of cocaine, heroin, or other hard drugs. While a more liberal-leaning governor might never have had the political capital to support such legislation—or many of the other issues that Perry signed off on, from sentencing reform to prison downsizing—Perry actually did. “Perry has used demagoguery about the death penalty as cover for being able to do some remarkable things,” observed Scott Henson, the editor of the criminal justice blog Grits for Breakfast. “As long as he’s pounding his fists over the death penalty, no one can portray him as being soft on crime.”



Perry and state senator Rodney Ellis at the signing of the Michael Morton Act, in 2013. (©Marjorie Kamys Cotera)

Because of a wave of DNA exonerations during Perry’s time in office and the efforts of state lawmakers to improve the system that had allowed such wrongful convictions to take place, Perry presided over a period in which Texas led the country in its efforts to improve police, forensic, and prosecutorial procedures. He signed into law legislation that improved and standardized the way law enforcement conducts lineups; mandated that the testimony of jailhouse informants be corroborated; required prosecutors to hand over exculpatory evidence to the defense (through the 2013 Michael Morton Act); guaranteed a defendant’s right to post-conviction DNA testing; substantially raised compensation for the wrongfully convicted; and established the Forensic Science Commission, which elevated the standards of state and local crime labs. Unfortunately, it was also in this arena that Perry had arguably the lowest moment of his governorship, when, in 2009, he successfully scuttled the Forensic Science Commission’s inquiry into whether or not a Texas man named Cameron Todd Willingham—who had been convicted using outmoded science and was later executed on Perry’s watch—had actually been innocent.

Given how relatively limited the governor’s influence is, except for veto power, how much credit does he deserve for the transformation of the state’s criminal justice system during his tenure? “Considering that Texas is a very conservative, Southern state, I’d say he’s been above average,” said state senator Rodney Ellis, a Houston Democrat who authored many of the bills Perry signed that sought to remedy police and prosecutorial misconduct. “He has not led on these issues, but he did not sabotage these bills either. He gets high ratings for not being an obstructionist.”

Former state representative Jerry Madden, a Republican from Richardson who helped lead the effort to downsize the Texas prison system, said, “To his credit, he got on board with us. He didn’t lead us into battle with his saber drawn—he basically said, ‘Why don’t you go on ahead?’—but he signed almost every bill we sent him.” At the end of the day, Madden noted, it would be difficult to find another governor in the country who has signed as much reform-minded legislation as Perry. “Some governors are sticking a toe in the water and finding it’s not as cold as they thought,” Madden said of criminal justice reform. “Perry didn’t just stick his toe in the water, he jumped.”

Quick stats:

Number of inmates sent to death row in 2002: 37

Number of inmates sent to death rol in 2013: 9