Is Texas tough on crime but soft on criminal procedure?

• Author: Gershowitz, Adam M.

Although Texas is well known for imposing tough punishments on convicted defendants, it is surprisingly generous in affording criminal procedure protections. In a variety of areas, including search and seizure rules, confession requirements, the availability of bail, prosecutorial discovery obligations, and jury trial guarantees, Texas affords protections vastly in excess of what is required by the United States Constitution. Even more shocking, these criminal procedure guarantees come almost entirely from Texas statutes approved by the legislature, not activist rules imposed by judges. This Article explores Texas's reputation as a tough-on-crime state and the seeming inconsistency between Texas being tough on crime but generous on criminal procedure.

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Everyone knows that Texas is tough on crime. Over the last four decades, Texas has sent more than 1000 inmates to death row, making it the "capital of capital punishment." (1) Texas is also a leader in incarceration: with nearly 175,000 of its residents behind bars, (2) Texas ranks first in the nation in raw incarceration (3) and second in per capita incarceration. (4) Shaming punishments are also popular in the Lone Star State; one judge shamed so many offenders that his constituents elected him to Congress as a result. (5) It is therefore not surprising that many people mistakenly think "Don't Mess With Texas" is the state's motto, (6) rather than simply a clever bumper sticker designed to fight littering. (7)

Yet, the story about Texas criminal justice is far more complicated than its reputation reveals. Despite its tough-on-crime reputation, Texas actually has numerous criminal procedure rules that are very favorable to criminal defendants. These pro-defendant protections are not mandated by the United States Constitution or the courts. Rather, Texas's pro-defendant criminal procedure rules are almost exclusively created by Texas statutes enacted by elected legislators, not judges. (8) These protections include strict rules on the admissibility of confessions, extremely pro-defendant search and seizure guarantees, tough limits on denying bail to criminal defendants, favorable discovery rules, and expansive jury trial rights, to name a few. In some instances, the rules are so favorable to defendants that almost every other state in the nation has rejected them. These rules are a major hindrance to prosecutors and thus directly contradict the notion that Texas is universally hostile to criminal defendants.

This Article explores Texas's reputation as a tough-on-crime state, as well as the little-known fact that the Texas Code of Criminal Procedure ("Texas Code") is quite favorable to criminal defendants. Of course, I do not want to overstate my case. I am not arguing that Texas has the most pro-defendant code of criminal procedure in the nation, nor am I asserting in any way that the protections Texas affords are bad public policy. Rather, I am simply making a descriptive observation that Texas is not nearly as tough as its reputation suggests when it comes to criminal procedure. Part I of this Article begins by reviewing reasons why Texas is commonly seen as tough on crime: from its use of the death penalty, to its packed prisons, to its indeterminate sentencing scheme which can result in huge upfront sentences that are reduced on the back-end by parole. Part II then reviews some of Texas's criminal procedure rules that make it far more favorable to criminal defendants than other states. Finally, Part III raises possible reasons for the inconsistency between Texas's punitiveness and its favorable criminal procedure rules.

1. TEXAS IS TOUGH ON CRIME (OR So IT SEEMS)

   It is not hard to make the case for Texas being tough on crime. From capital punishment to incarceration to shaming sanctions, Texas is at the forefront of imposing stiff punishments. In the Sections below, I offer a brief tour of Texas's reputation for punitiveness.

   1. The Capital of Capital Punishment

      Texas is the most frequent user of capital punishment in the United States, sending more people to death row than any other state. (9) And unlike other states that frequently impose the death penalty, (10) Texas actually carries out executions. (11) Since the Supreme Court reinstated capital punishment in 1976, Texas has executed more than 460 inmates, (12) which is well over one-third of all executions nationwide. (13) In some years, Texas accounts for nearly half of all executions. (14)

      Because of its frequent use of the death penalty, Texas has been responsible for a large share of controversial executions, which has furthered the state's reputation for punitiveness. (15) In 2007, the presiding judge of Texas's highest criminal court, Sharon Keller, received nearly universal condemnation for closing the courthouse doors at 5pm to an inmate seeking a stay of execution following a promising Supreme Court decision. (16) Despite an initial finding of misconduct, Judge Keller was eventually spared any punishment on technical grounds, thus prolonging the firestorm about the failures of Texas's capital punishment system. (17)

      In 2010, The New Yorker published an expose on the 2004 execution of Cameron Todd Willingham, who had been executed for killing his three children in conjunction with the arson of his home. (18) Based on analysis by nationally renowned fire investigators, the article concluded that the fire had been accidental, not arson, and that Willingham had been innocent. (19) The article unleashed a mountain of negative publicity about Texas's use of capital punishment. (20) And rather than own up to the wrongful execution, state leaders attempted to scuttle the truth. (21) Just two days before a forensic commission was due to begin hearings on the matter, Governor Rick Perry replaced the head of the body, and the new commissioner promptly canceled the hearing, leading once again to major national coverage. (22)

      Less than a year later, Texas made headlines with the release of death row inmate Anthony Graves, who was not simply mistakenly convicted, (23) but was railroaded onto death row as a result of egregious prosecutorial misconduct. (24) Graves was the twelfth Texas inmate exonerated from death row since the reinstatement of capital punishment. (25)

      Nor are controversies over the Texas death penalty exclusively of recent vintage. The 1998 execution of Karla Faye Tucker, a born-again Christian who found God in prison, sparked a national debate about rehabilitation when then Governor George W. Bush refused to pardon her. (26) And Governor Bush's seeming indifference to whether the death penalty had been fairly administered under his watch--along with criticism of his legal team's inattention to clemency requests (27)--tagged Texas with a reputation for executing first and asking questions later, or perhaps not at all. (28)

      The dozens of Texas death penalty cases decided by the Supreme Court have left an indelible impression that Texas is synonymous with capital punishment. (29) And in a number of recent cases, the Supreme Court has smacked down Texas capital convictions as unconstitutional. (30)

      Of course, the amount of attention paid to capital punishment in Texas is disproportionate to its real-world impact. (31) The State of Texas handles more than 700,000 criminal cases per year, (32) including more than 1000 homicides. (33) Death-penalty prosecutions account for only a few dozen of those cases. (34) Yet, rhetoric often outpaces reality. Both supporters and opponents of tough-on-crime policies point to Texas's use of capital punishment to make their cases. (35) The result is near universal agreement that Texas is the national leader in the death penalty and that it is tough on crime. (36) As detailed below, other criminal justice policies in Texas reinforce the state's reputation for punitiveness.

   2. Texas Is a National Leader in Incarceration

      While Texas is most famous for its use of the death penalty, it is also a leader in the total number of inmates incarcerated. Texas regularly vies for first place in this category with the much more populous state of California. (37) As of the end of 2008, Texas had more than 172,000 people in prison. (38) California, which has twelve million more residents than Texas, (39) had only 1100 more inmates. (40) To its credit, Texas has taken steps to reduce its prison population by shifting offenders to substance abuse and mental health treatment centers. (41) Yet, when 2009 came to a close, Texas still had more than 171,000 people incarcerated. (42)

      It is not just raw incarceration figures in which Texas is a leader. As a per capita matter, Texas ranks second nationally (behind Louisiana) in the number of inmates per residents. (43) According to the National Institute of Corrections, Texas's incarceration rate is about sixty percent higher than the national average. (44) Texas also vastly exceeds the national average in terms of the percentages of people on probation and parole. (45)

      In almost every category of prison statistics, Texas leads the nation. As one author recently explained,

      The state's per capita imprisonment rate ... [is] three times higher than the Islamic Republic of Iran's. Although Texas ranks fiftieth among states in the amount of money it spends on indigent criminal defense, it ranks first in prison growth, first in for-profit imprisonment, first in supermax lockdown, [and] first in total number of adults under criminal justice supervision.... (46) The huge number of persons sentenced to incarceration or awaiting trial in Texas has resulted in overcrowding at jails throughout the state. (47) In counties across the state, this overcrowding has led a number of jails to fail inspection. (48) The overcrowding situation is so bad in Houston that the county government has had to contract with out-of-state jails to house hundreds of its inmates. (49) Despite having added 100,000 prison beds since the 1980s, the...