Texan Punishment: The Statistics
As of December 2011, the total number of people incarcerated in either prison or jail in Texas was 230,086, making the Texan prison population the highest of any state in the US. Figure 4.1 depicts the total prison populations for California, Georgia, Florida, New York and Texas (the top
Fig. 4.1 State by state incarceration totals. Data came from Sentencing Project website: http://www.sentencingpro- ject.org/
five incarcerating states). As is clear, both California and Texas have— throughout the last three decades—broken away from other states, both increasing significantly the number of people behind bars. Texas actually ranks fourth in terms of rate of incarceration (behind Louisiana, Mississippi and Oklahoma) but the sheer size of the TCID and the consistency with which Texas has found itself in the top two of incarcerating states, has led scholars such as Robert Perkinson (2010, p. 4) to suggest that Texas ‘reigns supreme’ in the punishment industry.
In addition to the Texan prison population, data associated with the Texan death penalty can likewise be used as an indicator of the Texan commitment to harsh punishment. Since the moratorium was lifted in 1976 by the Supreme Court, 34 of the 35 death penalty states have performed at least one execution. Yet in what Crawford (2008) refers to as the ‘modern era of execution’—that is post-moratorium—Texas has performed 530 executions (as of December 2015) with its closest competitors being Oklahoma (112) and Virginia (111).
Put another way, between the years of 1976 and 2015, Texas has performed 37 per cent of all US executions. Moreover, if we consider only recent execution behaviour it becomes ever more apparent that Texas continues to demonstrate its commitment to harsh justice by way of capital punishment. Between 2007 and 2014, a total of fourteen states executed more than one inmate. Figure 4.2 includes the execution totals for each of these high execution rate states. Even when considered alongside other states that are commonly understood as punitive, in comparison to their Northern counterparts Texas remains in a league of its own; no other state comes close in terms of the total number of executions.
To gain a better understanding of the execution behaviour of Texas, and how Texas compares to other states, we can break this down further. Firstly, we will remove those states that perform (comparatively) few executions, and focus instead on the ‘top ten’ executing states postmoratorium. This leaves us Alabama (AL); Florida (FL); Georgia (GA); Missouri (MO); North Carolina (NC); Ohio (OH); Oklahoma (OK); South Carolina (SC); Texas (TX); and Virginia (VA). Secondly, we can consider both pre- and post-moratorium execution totals. Using data collected from the Espy Files (2003) and the Death Penalty Information Centre (DPIC 2009), Fig. 4.3 shows the average number of executions
Fig. 4.2 Total executions (2007-14) in states that have executed more than one person. Data came from Death Penalty Information Centre or DPIC (http://www.deathpenaltyinfo.org/)
Fig. 4.3 Top ten states: total executions pre- and post-moratorium. DPIC (see above) and Epsy Files (available at: http://www.deathpenaltyinfo.org/executions-us-1608-2002-espy-file
performed in each of the death penalty states pre-moratorium (1934-72) and post-moratorium (1976-2013). Interestingly, as the graph indicates, Texas was not a high execution state before the moratorium. It was only after 1976 that Texas emerged with what appears to be a renewed commitment to capital punishment.
From this imprisonment and execution data we can conclude with some certainty that the reputation Texas has acquired is actually underpinned by distinctly ‘modern’ execution and incarceration totals, rather than an age-old commitment to harsh punishment. It is only postmoratorium (in terms of the death penalty) and post-1992 (in terms of prison populations) that Texas began to express such enthusiastic support for tough justice. Far from having a longstanding tradition of hyper- punitivness, prior to the moratorium Texas was not known as a place of harsh punishment.
Moreover, compared to other states Texas is big, both in terms of geographical size and population. According to the United States Census Bureau (2000-10), Texas actually has the second largest population of all states, ranking behind only California. Taking this into consideration, the total prison population and total number of executions in Texas (and indeed the prison population of California) might have more to do with population size than a peculiar commitment to tough punishment. If we factor in population size a very different image of Texas can be constructed.
By collecting the population census data for each state (each year) post-moratorium we can calculate the execution rate for each state in any given year; that is the number of executions per 100,000 people. We can then calculate the average execution rate during the years 1976-2013 in order to compare the Texan execution rate with other death penalty states. Figure 4.4 depicts the execution rate of the top ten executing states in the US. As is clear, when presented as a rate (i.e. per head of population) Texas appears significantly less punitive, and the suggestion that Texas has an exceptional commitment to harsh punishment becomes far less convincing.
Similarly, if we reintroduce the years preceding the moratorium (1934-72) and once again present the data as an average per 100,000 population (that is, an execution rate rather than an execution total) once
Fig. 4.4 Top ten states: execution rate post-moratorium (per 100,000). Data came from DPIC, Epsy (see above) and US Census Bureau (www.census.gov/popest/data/historical/index.html)
gain we find that Texas is far less peculiar than we might imagine. While many criminologists—myself included—draw attention to Texas because of a supposed commitment to harsh punishment, as Fig. 4.5 indicates it is actually Oklahoma that now appears to be something of an outlier. Oklahoma is revealed as the only state (of the top ten executing states) that has increased its rate of execution post-moratorium.
Unfortunately it is not within the scope of the current chapter to examine this in any more detail, but suffice to say at this juncture, the Texan commitment to tough justice is actually up for debate, even if the reputation of a tough Texas persists. To be clear though, even if we can prove that Texas is somewhat unexceptional in terms of punitiveness (and I’m not entirely sure we should) that is not to suggest Texas is ‘soft’ on crime. Indeed, there are many other indicators that Texas is still the place of harsh punishment many believe it to be. For example, according to the DPIC, Texas is responsible for 37.3 per cent of all executions postmoratorium but only 0.8 per cent of all clemencies and 3.8 per cent of all exonerations (as of December 2015). In addition, while the US Supreme Court prohibited the ‘application of the death penalty to persons with mental retardation’ (Atkins v. Virginia 2002), the Texas Legislature has yet to enact any statutory provisions outlining the procedures to be followed in these cases. Indeed, while all states continue to modify their definitions of ‘intellectual disability’, Texas continues to include ‘procedural obstacles’ that make it more difficult to identify those who—under the Supreme Court ruling—should not be given a death sentence (Blume et al. 2014). Moreover, Texas has performed 7 of the 18 executions of defendants who did not personally carry out the murder under litigation; of the 22 executions of juveniles since 1976, 13 of them were carried out in Texas; Texas executes the most yet ranks fifteenth in state funding of criminal defence; and prisoners in Texas spend more time in ‘supermax’ isolation than in any other state (see Perkinson 2010).
In addition, it would appear that Texan governors are committed to harsh punishment, telling their stories about a tough Texas. In a recent autobiography, former governor Rick Perry (2011, p. 47) writes, ‘If you don’t support the death penalty and citizens packing a pistol—don’t come to Texas.’ Similarly, during a televised debate between candidates for the 2012 Republican nomination, Perry was asked whether he struggled with
Fig. 4.5 Top ten states: execution rate (per 100,000) pre- and post-moratorium
the possibility that one or more of those executed during his terms in office might have been innocent. Perry replied:
I’ve never struggled with that at all. The state of Texas has a very thoughtful, a very clear process in place of which, when someone commits the most heinous of crimes against our citizens, they get a fair hearing ... In the state of Texas, 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.
When you have committed heinous crimes against our citizens, and it’s a state-by-state issue, but in the state of Texas, our citizens have made that decision, and they made it clear, and they don’t want you to commit those crimes against our citizens. And if you do, you will face the ultimate justice.
It appears then, that the stories being told about Texas by punishment scholars may indeed be similar to the stories being told about Texas by the state’s former governor. While the scholars’ stories might adopt a less celebratory tone than those told by Rick Perry, wherever one looks Texas is understood as a place of harsh punishment; the reputation of Texan toughness thrives in both scholarship and political discourse. Moreover, a cursory consideration of the stories being told in cultural products such as news media articles supports the suggestion that Texas has a somewhat unique relationship with tough punishment.