Grim History

Earlier this year, historian Robert Perkinson published Texas Tough: The Rise of America's Prison Empire (Henry Holt and Company, 496 pp., $35), in which he traces the history of American prisons through the prism of the "retributive mode" of the Texas system. Perkinson, an associate professor of American studies at the Uni­ver­sity of Hawaii at Manoa, has been studying Texas prisons since the late 1990s, when he wrote his doctoral dissertation on "convict leasing," the privatized, for-profit system that replaced plantation slavery after the Civil War and survived into the 20th century. The book's title is a quote from Lt. Gov. David Dewhurst – "There's tough. And then there's Texas tough." – advocating broader application of the death penalty. Perkinson's thesis is that harsh Texas prisons, perfecting punishment trends established throughout the South, have become a model for much of the country. Texas Tough is a broad historical survey, a detailed history of Texas prisons, and in the end a scholarly polemic about the state of American prisons in general.

Perkinson has spent his summers over the last decade visiting and researching the Texas Department of Criminal Justice, and he says that on the whole, the TDCJ was very helpful in helping him do the research and providing current statistical information. The book is also informed by numerous interviews and correspondence with prison officials, inmates, and others with knowledge of the lengthy and complex history of prisons in Texas.

Perkinson has also met with state representatives and officials working on prison reform and is hopeful that Texas and the U.S. are, as he writes, "about to embark on another era of humanitarian criminal justice experimentation." We spoke recently about his book and his tentative sense that this could be a moment of opportunity for reform. "The good news," he told me, "is that [the book] could be kind of an obituary for a moment that could be passing. It's too early to tell."

The following is a lightly edited transcript of our conversation.

Austin Chronicle: How did you come to the conclusion that the Texas system became the model for U.S. imprisonment?

Robert Perkinson: If you look at almost any book on prison history, they start in the Northeast with these reform-oriented institutions, around the period of the Revolution, that were meant to rehabilitate criminals. They never worked out so well, but the standard story that's told is this "narrative of halting progress": They try one thing to rehabilitate criminals, and that might not work, it degenerates into scandal, and then they try another. But there's always been this counter-tradition of criminal punishment that just hasn't received as much attention from historians but is just as prominent in the records. And that's a hard-fisted retributionist model, tied up with racial stratification, and that's always been more powerful in the South.

So I found that with a little more sober eyes, if you look at the whole history of American punishment, there are really two traditions: the reformatory tradition that traces to the Northeast, and the retributionist, racially discriminatory model that traces back to slavery. In Texas and other Southern states, those connections are more stark than in other places. Until very recently, until the Eighties, Texas' entire prison infrastructure was centered in the same counties that were the predominant slave counties before emancipation, and the properties were all former slave plantations that were then converted to private prison plantations, until 1912, and then were taken over as state plantations. So the personnel, the daily rhythms of life, the work expectations, the disciplinary traditions were all kind of passed down from slavery to convict leasing, then to the state. To a certain extent, that fell apart with the federal litigation in the 1980s but in some ways still is with us.

AC: The popular mythology of Texas doesn't acknowledge the plantation history. It's all about big, wide-open spaces and cattle ranches, and to the extent it recognizes the bloody historical record at all, it's all about fighting off the American Indians and the Mexicans.

RP: Texas is funny, because it's both a Southern state and a Western state, and it's become an urban state. ... The history of criminal justice and law enforcement is tied to that Western frontier experience. If you look back at the early history of the Texas Rangers, they were not engaged in what we think of as law enforcement but really involved in what the best recent history calls ethnic cleansing against Mexicans and Indians. That's the origins of law enforcement, and slave patrollers were the other origins of law enforcement. In Texas, all white men were required to serve on slave patrols in the antebellum period, so that was a state-imposed way of imposing order. But the prison system really has its origins in the Southern history of Texas.

AC: Your own roots were in Mississippi. What drew your attention to the Texas system, as opposed to Mississippi, Alabama, Louisiana?

RP: I decided to work on Southern prisons because that's really where the action is and not as many people had paid attention to it. The South is imprisoning more people and at a higher rate and is executing more people and has pioneered a lot of the harsh innovations that have come to the fore nationwide over the past two generations. I thought I would work in my own family state, Mississippi, and I went there, I spent some time in Louisiana. But the more I researched, the more I discovered that Texas is really the epicenter of this, for three reasons.

In the first place, Texas exemplifies the Southern history of the plantation as well as any place. Secondly, it's just out of the park by every measure in present-day criminal justice severity: There's more people locked up in Texas than any other state (even more than in California), more people in supermax lockdown, more people in for-profit facilities, and more people executed than in any other state. But the surprising part is that Texas is also different than Mississippi or Louisiana or Arkansas in that it really has had national influence. Those other states were always regarded by prison professionals and national policymakers as kind of backwaters, and mostly still are, whereas Texas is the only state that really perfected the plantation model, starting in the 1950s, and made it palatable. They imported enough of the modern correctional technologies, combined them with slavery-inherited form of retribution, and they were able to present the Texas model as a conservative counterweight to California's rehabilitative model in the 1950s and 1960s. And as the country swung to the right, after the election of Richard Nixon [in 1968], and as rehabilitation didn't live up to its promises, Texas' no-nonsense, economical, authoritarian model started getting picked up and mimicked around the country.

AC: Could you talk a little bit more about the stages of development in the Texas model?

RP: There's the antebellum stage, and Texas built a penitentiary in Huntsville in 1848, but that was reserved almost exclusively for whites. According to statute, African-Americans, slave or free, could only be punished with hanging or whipping. The penitentiary was quite important during the Civil War, because they built a textile factory at the Walls [in Huntsville], and it was a key source of uniforms and tents for Confederate units. But after the Civil War, before radical Reconstruction began, there was this effort by Confederates who had been defeated to reestablish "white man's government," as they called it. They passed all these vagrancy statutes and black codes and forced labor contracts, and that led to Texas' first black felon boom. (The second felon boom came about in the 1970s, Eighties, and Nineties.)

Texas, like other Southern states, decided not to deal with those people by sending them to prison, but they hired them out to the highest bidder, and that was the convict-leasing system. Texas had the biggest convict-leasing system in the country, which is also something that is not widely known. If you look at the smokestack at Imperial Sugar in Sugar Land, that was a whole industry that was revitalized with convict labor. Texas' first transcontinental rail links – which were important for the late 19th century cotton boom – were built with the assistance of convicts, the first iron factory in the state was a convict enterprise, and a lot of the stone work and iron work at the state Capitol, built in the 1880s, was done by prisoners.

AC: And this also created a direct financial interest in convict labor.

RP: Right, and people made huge fortunes on free labor supplied by the state, and they just paid the state per head per convict – more for blacks, less for whites, because they worked blacks even more savagely. ... Convict leasing lasted for almost a century; it was finally abolished in 1910 by this big movement that united labor leaders and women reformers. It's important to realize that even though Texas has been a harsh criminal justice state, it's also had more reform movements than any of the other Southern states, and they've been quite powerful. Most notably, a group of women prison activists took over the prison system of Texas in the 1920s – under Governor Dan Moody's administration, a group of women took over the prison board, and they had this idea of selling all the prison plantations and building a therapeutic prison colony near Austin. But it never happened; they never got the funding for it. The Legislature cut them off at the knees.

So first there was the antebellum period, when whites were in prison and blacks were under private discipline. Then there was the private-profit, and actually most brutal, period in Texas prison history; and then, after convict leasing was abolished, the state just purchased those same plantations that the private contractors had owned and pretty much absorbed their same personnel and started working convicts in the same fashion as had the private contractors. It was unpaid direct labor for the profit of the state, which meant that Texas able to spend very little in terms of appropriations for incarceration, because the prisoners were generating most of the budget for the prison system.

That lasted all the way until the Ruiz case [Ruiz v. Estelle, which was filed in 1972 and decided in 1980], until the 1980s. There were other periods in there; there was a period in the Fifties when, under [former Texas Department of Corrections directors] George Beto, and before that, under O.B. Ellis, there was another reform effort in which the plantation model was sort of brought into the 20th century, and they started the Windham School District [to educate prisoners], and started more rehabilitation programs. So I suppose the state plantation era you might date from 1910 to 1950 or so, and then the reformed plantation model from the 1950s to the Ruiz case.

AC: One of the historical versions of the Ruiz case is that the prisons were absolutely horrifying until Ruiz and Judge William Wayne Justice, and that once those cases made their way through the system, things were much better. And yet you record that in the last couple of decades, particularly for minority inmates, incarceration has gotten much worse, sentencing has gotten much worse, indeterminate sentences came to mean "longer and harder," disappearing youngsters into prison virtually forever. How would you recount, say, the last generation of this system?

RP: There's two contradictory developments that move in opposite directions. The Ruiz case did make the prisons system more professional, more accountable, more transparent, and it provides better medical care than it did before the reforms ordered by the courts. So it's a more professional bureaucracy, and that makes life better for most prisoners in the system. Prisoners who were favored by a warden or something had a much better deal under the old system. It depends on race, too – if you talk to old-time white prisoners, they might say it was better under the old system, and black prisoners generally say that it's better under the new system.

At the same time those reforms were being made, there's this political transformation in the state that begins in the late 1960s, I argue, in reaction to the civil rights movement. Across the South, the conservative Democratic establishment was defeated on racial integration. They fought as hard as they could – not quite as hard as they had fought during the Civil War, but they fought pretty hard – and they lost. But they immediately began turning to law enforcement and criminal justice to manage this new social order that they had feared and fought against. The same years that the segregationist statutes are swept off the books, you start seeing the passage of adult prosecution of juveniles, sentencing extensions, harsher penalties for drug crimes, more money for law enforcement, more money for prison construction. That accelerates during the Seventies and really just goes metastatic in the Eighties and Nineties, when every legislative session politicians were wanting to take home sentencing enhancements and parole curtailments and new crimes and crackdowns on this or that – either because they were running on a law-and-order platform or because they wanted to protect themselves from attack on the right if they were liberals.

AC: You get the title of your book from Lieutenant Governor David Dewhurst, declaring at his 2007 inauguration: "There's tough. And then there's Texas tough," in advocating an expansion of the death penalty, as a culmination of this political pressure for harsher imprisonment.

RP: That really became true during this period, and prison growth just exploded. It was finally under Governor [Bill] Clements, Governor [Ann] Richards, and Governor [George W.] Bush, who really just pumped more and more air into the balloon, so that now there's just this hugely bloated, gigantic bureaucracy that TDCJ employees sometimes compare to the Pentagon.

AC: Early on in the book, you talk about the racial disparities in incarceration and that the situation for African-Americans is much worse than it was previously: "Today, a generation after the triumphs of the civil rights movement, African Americans are incarcerated at seven times the rate of the whites, nearly double the disparity measured before desegregation."

RP: That's just the shocking result of all of these sentencing laws we've passed that have primarily changed the ways we deal with nonviolent offenses.

AC: We tend to have this narrative in our heads: Things are bad, but they're not as bad as they were before.

RP: Right – and in criminal justice, the opposite has happened. It is really quite shocking, and there are a lot of reasons for that, but what's changed primarily is how we deal with nonviolent offenders. Under the old system and the new system, and in every state, lenient states and severe states, the sort of criminal predators that dominate our headlines or the news shows are put in prison for a long time: child rapists, serial killers, and so on.

But the drug war has created all of these perverse incentives: Police departments get rewarded with federal and state dollars for the number of arrests they make, which encourages them to go after low-level drug offenders, so they just tend to sweep through the poor communities. The survey evidence is pretty clear that whites use illegal drugs in equal proportions to African-Americans, yet they constitute only a small number of the arrests, and even a smaller number of those imprisoned for drug offenses. And then there is racial profiling; there are studies that show racial bias at every level of the criminal justice system. As a result, criminal justice has become an important engine of racial inequality and has arrested our country's progress toward genuine pluralistic democracy.

AC: Is it pretty much the same pattern all across the country?

RP: It is, just to a lesser extent. Texas and other Southern states have just pushed the incarceration rates higher and the sentences longer and made parole more difficult than states elsewhere. The next in the ranking of severity is the Sunbelt West, and then the Midwest and Northeast are more lenient. But compared to other countries, every state in the country is much more severe than Iran or Cuba or any of the countries that we think of as authoritarian regimes. The U.S. locks up a greater proportion of its citizens than any of them.

California's prison system is much more expensive than Texas; California spends about $10 billion a year to lock up about the same number of prisoners, roughly 170,000, as Texas – where it's $2.5 billion. The difference is that California correctional officers are well-paid, and Texas' correctional officers are paid kind of Wal-Mart wages. And that harms the system, really, and those prison communities are not benefiting as much from incarceration as they might if prison guards were better paid.

AC: And there's this narrow line between the prisoners on the one hand and the correctional officers on the other. They come from the same world, and it's almost a toss-up which side of the line you end up on.

RP: And the real old-time employees [in the Texas system] really feel that way. Because once upon a time, the really old employees in the system, the veterans .... It was white men who had grown up on farms who worked in the prison system. Often their fathers and maybe even their grandfathers had worked in the prison system. So it was white rural folks who ran the prisons, and it was black urban folks who were the prisoners. So the status division between free and unfree mirrored the status divisions that were present in all sorts of other ways. Now it's much more complex.

AC: One thing that surprised me about the Ruiz section a little bit was that the officials you were talking to from contemporary times still think of David Ruiz as this evil force who destroyed the greatest prison system in the world.

RP: To be fair, because my project was historical, I tended to be interviewing both employees and prisoners who'd been in the system a long time, whereas, I think if you were to go and talk to the director now, some of the top administrators, you would probably find a little bit of a different attitude. And the current leadership of TDCJ is also open to some of these changes that [Sen. John] Whitmire and others are starting to push through the Legislature. There's not the same resistance right now to change that there had been in the past. But certainly among the veterans, there is this notion among the guys who lived through it – that we had the best prison system in the country, and it got wrecked.

AC: You began talking with a little optimism that there seems to be a little movement in the Legislature to change things.

RP: If you read this book, you see every reform movement that took place – and often got smashed back. That's often the danger. So when this level of bloat and waste and ineffective government becomes the new status quo, and legislators only tinker around the edges with a few more programs for people getting out of prison and some modest programs for low-level drug offenders, that will really be a tragedy, and this moment of opportunity will be wasted.

On the other hand, there are some promising signs. This current round of reforms in the last couple of legislative sessions has really been led by the Legislature, in both houses, and with a surprising amount of bipartisan cooperation. The governor grudgingly began to go along, after blocking those efforts in 2005. There's some pretty sophisticated citizen efforts out there, like the Texas Criminal Justice Coalition led by [Executive Director] Ana Yáñez-Correa. And I met with a whole bunch of legislative aides and staffers when I was there a couple of weeks ago, and people on both sides of the aisle are really interested in making some changes. It's like the whole political establishment has kind of sobered up from a 40-year prison binge and is now standing around saying, "What have we done?"

If 40 years ago a dozen politicians had gotten together at the Driskill and said, "What's the most ineffective, the most expensive, and the most damaging set of policies that we can implement to change our criminal justice system?" – that's what they've done for now 40 years running. And the result is a huge waste of resources without very much protection for the public.

Crime is going down in Texas, and that's a good thing, but crime has dropped much more precipitously in New York, and New York has had a much more modest prison buildup. And crime has dropped similarly in Canada, and there has been no prison buildup.

AC: You point out a couple of times that the crime rates generally seem to have little or no relation to the incarceration rate.

RP: If you look at just a narrow segment of time, they can seem to correlate. But over the long term, over the course of the 20th century, there's very little correlation between imprisonment rates and crime rates. Imprisonment rates really correlate to the state economy, and the political [atmosphere]. Those are political decisions. We say, "If you do the crime, you do the time," but it's politicians who decide – legislators and, to a lesser extent, D.A.s and judges and parole boards and so on – how much time.

AC: You write that in order to change this, it's not going to take working around the edges; it's going to take a social movement. The social movements I see developing are mostly pushing everything harder to the right.

RP: Well, so far, we don't see anything like the sort of public mobilization that I think will be required to really turn this ship around and to have us downsize this bureaucracy to the size it ought to be – which is probably a 10th the size that it is now – and divert all of those resources that are getting sucked in to incarceration to drug treatment and education and to child abuse prevention – all of those sorts of programs where we ought to be spending.

But long-term, to a surprising extent, I found in looking at the history of criminal justice, I found over and over again, the debates were always poisoned by race. That was true through the law-and-order crime panic of the 1990s, and I think racial poison is still flowing through the tea party and the anti-immigration mobilization right now. But the demographic projection of Texas and the rest of the country suggests that we can eventually get beyond some of that. Not for very much longer will politicians in Texas be able to get elected to statewide office in Texas with only the Anglo vote, and once statewide politicians have to start putting together broader coalitions, then it limits the degree to which racial demagoguery – either overt, or as it is these days, coded – can play such a prominent role in politics. If that racial poison gets taken out of the equation, then it could allow people to much more calmly get down to the business of governing.

AC: One larger philosophical question: You allude to the historical debate over the point of prisons at all. We take prisons for granted as a necessary evil – with ferocious advocates but very few people willing to say the whole notion is a bad idea. Do you think we'll ever get to a point where the prison isn't the first recourse for every kind of anti-social behavior?

RP: I certainly hope so. The conclusion I came to is that it would be much better to have prisons oriented toward making people come out better – more educated and more employable, and less angry and more psychologically balanced – at the other end of their incarceration experience.

But ultimately, I decided that prisons are just corrosive institutions, for staff as well as inmates, that really the most important thing we can do is try to figure out how we can not have people go to prison in the first place. And that means the presumption of policymakers and judges and prosecutors in law enforcement ought to be, every time there's a criminal offense: What is the best remedy to this problem? And is it possible for us to come up with any remedy that does not involve sending this person to prison, where they are going to be more damaged and come out angrier and less employable than they were before? And that's the way the system has to be designed, and we have a very, very long way to go before we get there. ...

But you have to be very careful of unforeseen consequences. Some of these things can set you up for even more prison growth, because .... It's not easy to break addictions. Anyone's who known anyone addicted to alcohol or cigarettes, or who are themselves, know that people tend to relapse. So a lot of these programs are designed in such a way that they give one chance for rehabilitation, and if they fail even one urinalysis, they send them to prison for even longer. If you design it that way, it can be even worse. Treatment often takes multiple treatments to get through, but that's a good place to start. And there's lots of good evidence on preventing crime by improving education, dealing with chronic underemployment in low-income areas, preventing child abuse. All of those things have good long-term outcomes in depressing crime rates, but those are all the programs now that are getting slashed.

AC: Right – you have to have the resources to do that, and if you're spending all this money on prisons ....

RP: There's the optimistic trajectory, and then there's the much worse one – that we will trim the prison population for a couple of years because of budget exigencies, but by slashing social services and education, we'll just set up the generation coming up right now even more readily into criminal offending and setting the boom for another crime panic and another wave of punitive policies and prison growth 10 or 20 years from now.

It's a grim history of hopeful experiments that collapsed, and the triumph of ignorance and bigotry over hope and effective governing. That has been the main storyline, sadly, in criminal justice. There certainly is an opportunity to get smart on crime instead of just tough on crime, but there's a lot of work to do.

Texas' entire prison infrastructure was centered in the same counties that were the predominant slave counties before emancipation ... and the properties were all former slave plantations. ... So the personnel, the daily rhythms of life, the work expectations, the disciplinary traditions were all kind of passed down from slavery to convict leasing, then to the state.

Compared to other countries, every state in the country is much more severe than Iran or Cuba or any of the countries that we think of as authoritarian regimes. The U.S. locks up a greater proportion of its citizens than any of them.

If you look back at the early history of the Texas Rangers, they were not engaged in what we think of as law enforcement but really involved in what the best recent history calls ethnic cleansing against Mexicans and American Indians. That's the origins of law enforcement, and slave patrollers were the other origins of law enforcement.

Not for very much longer will politicians in Texas be able to get elected to statewide office in Texas with only the Anglo vote. ... If that racial poison gets taken out of the equation, then it could allow people to much more calmly get down to the business of governing.

We don't see anything like the sort of public mobilization that I think will be required to really ... downsize this bureaucracy to the size it ought to be – which is probably a 10th the size that it is now – and divert all of those resources that are getting sucked into incarceration to drug treatment and education and to child abuse prevention – all of those sorts of programs where we ought to be spending.