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Rick Perry, Criminal Justice Reformer? The Governor’s Surprisingly Complicated Record.

Should Rick Perry win the Republican presidential nomination, he’ll no doubt be eager to tack to the political center. The first order of business will no doubt be to taper off his most populist rhetoric, including his recent talk of treasonous monetary policy and Ponzi entitlement schemes. But if it comes to wooing independents in the general election, he may also be able to leverage a surprising aspect of his record as governor of Texas: criminal justice reform.

Texas, of course, has the largest and one of the harshest penal systems in the country, and the most active death chamber. But during Perry’s tenure as governor, the state has enacted far-reaching policies to improve judicial efficiency and curtail prison expansion. The result, according to a recent report by the Council of State Governments, is that prison growth has tapered off and taxpayers have saved half a billion dollars, while crime rates have declined. By getting “tough and smart,” Texas has proved that it is possible to “lower crime and lower costs,” boasts Mark Levin of the Texas Public Policy Foundation.

But Democrats shouldn’t feel too intimidated by Perry’s bona fides as a criminal justice reformer. If it’s undeniable that the state’s criminal justice system has undergone remarkable change in recent years, it’s much less clear the degree to which Perry deserves credit for it.  

WHEN PERRY CAME TO power in 2000, he inherited a titanic criminal justice system. The state’s incarceration rate had quadrupled since 1980, and the total prisoner population surpassed 150,000. During the governorship of George W. Bush, Texas built 38 new prisons, and the state’s annual corrections expenditures soared from $1.4 to $2.4 billion.

If Texas led the nation in scale, it did so in severity as well. By almost every measure—from its parsimonious indigent defense system and lengthy sentences to the number of prisoners held in solitary confinement and the frequency of its executions—the Lone Star State stood out for punitiveness. Having advanced tough-on-crime policies in almost every legislative session since the end of the civil rights era, Texas by the turn of the century had pioneered a conservative counterrevolution in criminal justice, playing a key role in constructing the biggest prison system in the history of democracy.

Perry’s own criminal justice legacy is defined largely by how he coped with crises set in motion by his predecessors. And in many respects, his record is positive: Although Perry reflexively rails against “criminal thugs,” in office, he has repeatedly retreated from overreach. When vertiginous growth and administrative neglect incubated systematic sexual abuse in juvenile lockups managed by the Texas Youth Commission, Perry signed legislation to overhaul the agency and divert some child offenders to county-based programs. When DNA testing uncovered more wrongful convictions in Texas than in any other state, the governor approved new standards for crime labs and compensation for the exonerated. When unfettered police powers facilitated a notoriously racist drug-sweep in the small town of Tulia, Governor Perry belatedly pardoned 35 of the railroaded defendants.

Even as Perry has demonstrated willingness to file down the edges of Texas’s criminal justice system, however, he has lagged behind fellow politicians. Early in his governorship, a bipartisan collection of lawmakers, notably Senator John Whitmire and Representative Jerry Madden, began sobering up from the state’s punishment binge and looking for ways to improve outcomes and control costs. In 2005, Perry vetoed their efforts, only to reluctantly sign on two years later, in 2007, when the Texas Department of Criminal Justice demanded yet another $500 million for prison building.

That legislation has since become the centerpiece of the state’s celebrated reform program, an overhaul of probation and a diversion of resources from punishment to treatment for non-violent offenders. Four years later, as a result of the reforms, the projected demand for 17,000 new prison beds has yet to materialize, and Texas has been able to close a prison rather than open new ones. This is a historic turn, but advocates on the ground credit the statehouse rather than the governor. “Perry is not always an obstacle,” says Ana Yáñez-Correa of the Texas Criminal Justice Coalition, “but I can’t think of an issue on which he’s been a leader for reform.”

When Governor Perry has exercised personal leadership on criminal justice issues, the results have sometimes been troubling. In 2003, when a budget crunch made clear that lawmakers had for years been serving red meat to their constituents without plans to pay the bills, Perry initially tried to slash his way into the black, cutting drug treatment and education programs and setting a caloric ceiling on inmate meals. Only when this proved insufficient did he come around to softer but more substantial money-saving solutions, like probation diversion and, eventually, sentencing mitigation. During the current downturn, Perry similarly reached first for the ax. Although legislators defended many of Texas’s fledgling reform experiments, major cuts were approved in indigent defense, prisoner education, inmate health care, and reentry. Even as Texas’s smart-on-crime approach is starting to show success, Governor Perry hues to the party orthodoxy that favors government strangulation over strategic investment.

In the name of cost-cutting, Perry most consistently returns to the shibboleth of privatization. In states like Texas, where land is cheap and corrections officers earn Wal-Mart wages, independent studies have shown that privatization rarely saves money, but Perry’s commitment to the cause has never flagged, perhaps because prison contractors have made for generous campaign donors. In 2003, the governor promised huge savings from privatizing state jails, which house convicts with short sentences. When an independent auditor, Tony Fabelo, predicted only negligible savings, Perry used his line-item veto to eliminate funding for the auditor’s office. “They wanted me to cook the books,” Fabelo said in an interview afterwards. “When I said no, the bastards fired me.” Last spring, although the case for privatization had only weakened (Texas already has more inmates in for-profit facilities than any other state and a track record of waste and inefficiency), Governor Perry and his allies again proposed privatizing state jails, as well as the prisoner health care system. Observing the negligence lawsuits surrounding such schemes in other states, legislators demurred, but Perry’s determination spotlights another constant in his approach to governing: the desire to put public money in private pockets.

Callousness rather than patronage has characterized Perry’s approach to the death penalty. Early in his tenure, he vetoed legislation to protect mentally retarded defendants from capital punishment, and he allowed the execution of three inmates who were juveniles at the time of their crimes (both groups were subsequently spared by the U.S. Supreme Court). In response to a rash of embarrassing post-conviction exonerations, Perry consented to improve criminal procedures and establish a forensic science commission, but when the appointed body prepared to report that one of the individuals executed under Perry’s watch, Cameron Todd Willingham, was most likely innocent, the governor reshuffled the commission and had the investigation squashed. As in the privatization debates, politics trumped the facts.

Overall, Texas’s death penalty procedures are somewhat fairer today than they were under George W. Bush. Thanks in part to a life-without-parole sentencing alternative that Perry signed in 2005, the pace of capital convictions in Texas has also slowed. Nonetheless, Governor Perry has racked up a breathtaking record of executions in his eleven years in office: 234 and counting. Among the departed can be found heinous criminals, to be sure, but also defendants whose journeys to the death chamber were expedited by mental illness, developmental disability, inadequate representation at trial, denial of consular access, prosecutorial misconduct, and, not least, indifference in the clemency process.

The least moderate stances that Perry has taken on criminal justice policy writ large are also his most recent—namely, his pandering to the Tea Party on illegal immigration. As recently as 2001, Perry was positioning himself as a moderate on the issue, signing legislation to provide in-state tuition to students who graduated from Texas high schools regardless of their immigration status, a precursor to the proposed federal DREAM Act. But as a right-wing revolt against immigration took shape in President Bush’s second term, Perry decisively changed course. In interviews, despite evidence that Mexico’s drug violence was having no effect on crime in Texas, he started talking about “the great terror on our southern border.” In 2005, he ordered state police to step up patrols along the Rio Grande, a duplicative effort that has cost $250 million. As he prepared to run for president, the governor went further, signing a voter ID act that will effectively disenfranchise many low-income Texans and convening a special session of the legislature to push a bill, similar to one in Arizona, that would authorize local police departments, even in sanctuary cities, to question suspects about their immigration status. Had the legislation passed, notes advocate Yáñez-Correa, “the surge in arrests could have reversed the progress we have made in controlling the state’s jail and prison populations.”

Rick Perry’s extensive record on criminal justice, then, is a conflicted one. In agreeing to moderate Texas’s punitive extremes, the governor has exhibited an interest in governing and a willingness to compromise, even to change his mind. As evidenced by his reflexive hostility to social programs, his fealty to corporate over taxpayer interests, his disinterest in due process, and his recent demagoguery on immigration, however, he is also a candidate willing to ride the winds of reaction as far as they will take him, the consequences for Texas and the country be damned.  

Robert Perkinson is associate professor of history at University of Hawaii, and author of Texas Tough: The Rise of America's Prison Empire.