Texas Tough

This piece I wrote for The Nation, “Prison Dilemma,” assesses a novel explanation for the punitive turn in American criminal justice and examines prospects for reversal in the Age of Obama. The Webb bill is a good place to start.

Policymakers and criminal justice officials from coast to coast are starting to realize that America’s prison colossus costs too much, delivers too few benefits, and inflicts unacceptable collateral damage. In order to chart a better way forward, however, we first need to figure out how we landed in the muck in the first place. Here scholars disagree widely. In this essay I just finished for Boston Review, I examine competing explanations for what historians call “the punitive turn.” I also develop my own argument that mass imprisonment took shape largely as an inchoate political reaction against the victories of the civil rights movement. The article appears in a special issue that also includes thoughtful, provocative essays by Bruce Western, Mary F. Katzenstein, and Mary L. Shanley.

The Duke lacrosse rape case—although the prosecution disintegrated and the DA was hustled off to jail—remains something of a cause célèbre. A number of blogs have kept up the drumbeat of indignation, and there are now three books out on the travesty. For all the commentary, however, I argue in this piece I wrote for The Nation that the wrong lessons are being drawn. The rottenness at the heart of this wrongful indictment is not political correctness run amuck, as most pundits are claiming, but prosecutorial power run rampant.

Over the past few decades, America’s soaring prison population has passed a series of milestones: 1 million, 2 million, now 2.2 million. A new report from the Pew Charitable Trusts reveals that 1 out of every 100 adults now lives behind bars. For most of American history, prisons existed on the margins of society. This report suggests that, especially among African Americans and Latinos, imprisonment has become a core function of American government, a defining feature of American civilization. Pew’s novel slice into the statistics has generated a great deal of media attention. You can read the full report here.

In researching the 150-year history of Texas criminal justice, it became increasingly apparent to me that law enforcement and imprisonment have less to do with crime control than social control. This was plain to see in the old days; Texas’s first penal code mandated incarceration for wayward whites, whipping or the gallows for blacks. The pattern has held. Today, a generation removed from the triumphs of the civil rights movement, African Americans are six times as likely to go to prison as whites, a level of racial disparity not witnessed since the 1920s, the heyday of the Ku Klux Klan.

 These days, tough-on-crime politicians are too polite to talk about “white man’s government.” But from time to time, a policy initiative pulls back the curtain. The sentencing disparities between crack and powder cocaine provide one example. And now there’s a new scourge in town: sagging pants. That’s right, sagging pants.

 It seems that an alarming number of young black men are swaggering around with their jeans hanging low—a hip-hop fashion statement that, ironically, alludes to life in prison, where belts are verboten. The solution? Put those “strutting bucks” behind bars where they belong. This anyway is the trend among a growing number of municipalities. From Dallas to Atlanta, exposed Calvins have knotted up the panties of moralistic, anxious policymakers so tight that they’re mandating stiff fines or jail time for anyone who lets their waist bands slide.

 The ordinances are supposedly race neutral, but everyone knows the intent. It’s sartorial social control, white supremacy with a wink. The result will be still higher rates of black imprisonment, another step toward a lockdown America.

As governor and president, George W. Bush has presided over and approved the executions of the mentally ill, mentally retarded, adults convicted as juveniles, and perhaps the innocent—not to mention the imprisonment of hundreds of thousands. With the exception of the White House’s Thanksgiving turkey, however, he has rarely encountered a defendant he deemed worthy of mercy—until today. On July 2, 2007, the President decreed that his Veep’s trusted aid and fellow warmonger, Lewis “Scooter” Libby, should not spend a day in the clink for his role in the agent-exposure/WMD-hoax scandal.

Fair enough, I say. Still, I would have preferred the President give an honest account of his decision. Instead of releasing a mumbo-jumbo memo on the legal merits of the case, why not tell the truth: that Scooter was doing W’s dirty business and that it would have been dishonorable to let him rot while his bosses continued steering the ship of state further into the muck. In his deflecting commutation statement, Bush carries forward one of the most unsavory characteristics of his presidency: a startling unwillingness to take responsibility for any misstep, whether frivolous or grave. With 43, the buck always stops down there.

Since the Powell v. Alabama (1932) decision first granted capital defendants the right to counsel in the Scottsboro case, the Supreme Court has periodically ruled certain types of defendants beyond the reach of the noose and needle. Some twenty years ago in Ford v. Wainwright (1986), the Court barred executions of the mentally ill, but state courts, and Texas’s in particular, have set their own standards for mental incompetence, making it exceedingly difficult for defendants to escape capital punishment except in the most extreme cases of insanity. Today, however, amidst a flurry of right-wing rulings (overturning key enforcement provisions of Brown v. Board of Education, for example), the Supreme Court saved the life of one Scott Louis Panetti, who famously represented himself at trial wearing a purple cowboy outfit, and ordered lower courts to more seriously consider expert testimony on mental illness. The ruling marks the fourth straight rebuke of Texas’s courts by the Supremes this term—an astonishing record given the majority’s general eagerness to inject. For more information, see the Texas Defender Service, which helped take the case to the top.

Texas stuffs more people into more prisons than any other state. But why stop just because you’re ahead? Despite the admirable efforts of John Whitmire, chair of the Senate Criminal Justice Committee, and Tony Fabelo, former head of the Criminal Justice Policy Council (who Gov. Perry fired for daring to report accurate information), to inject a smidgen of sanity into the debate, this legislature has approved $273 million for new prison construction, created new types of crime (stealing copper wire, for instance, and texting naughties to juvis), and expanded the reach of the death penalty. For the first time since the days of Jim Crow and lynching, sexual assault without homicide is returning to the books as a capital offense. Lt. Gov. David Dewhurst championed the latter measure as part of a wider crusade against sex crimes, especially those involving juveniles. “Our message is this,” he puffed. “There’s tough. And then there’s Texas tough.” For a wrap-up on the Icky 80th, see the Texas Observer.