We're Number One: 

Bush and Criminal Justice 

Excerpted from Shrub by Molly Ivans and Lou DuBose Random House 2000

Texas' bloodthirsty criminal justice officials. . . . Texas, where liberals are required to carry visas and compassion is virtually illegal.... A state perfectly willing to execute the retarded and railroad the innocent ... by far the most backward state in the nation when it comes to capital punishment.... Texas has a fetish for capital punishment. -Bob Herbert, The New York Times

Maybe he was a little overexcited about the state of criminal justice in Texas. But then, we've earned it. You want tough on crime? We're number one. You want a fair trial? There could be a problem. Our reputation is worldwide, indisputable.

• Texas has approximately 147,000 people in its state prisons, the largest prison system on the planet Earth. Counting those in the state's Jails and on parole, there are 545,000 people in the system.

• For every 100,000 adult Texans, 700 of them are in prison. The national average is 452 per 100,000 population.

• On any given day, we have about 450 people on death row. Since the U.S. Supreme Court lifted its four-year moratorium on executions in 1976, Texas has killed 138 people, more than one third of all the executions in the country. Bush himself had signed 100 death warrants by the fall of 1999, more than any previous governor.

• Only once in the past seventeen years has the Texas Board of Pardons and Paroles, appointed by the governor, recommended that a death sentence be commuted. The perp was the serial liar Henry Lee Lucas, who confessed to more than 120 murders and was charged with 35 before anyone in Texas had the mother wit to wonder if he was lying. He is now believed to be guilty of one or perhaps two murders. The state of Texas, with no difficulty at all, managed to give Lucas the death penalty for a murder committed while Lucas was in another state entirely. Oops.

• We have executed people who are hopelessly mentally III, people who are profoundly retarded, and people who are innocent-and that is all well-known fact.

• Should you draw the death penalty in this state, you have thirty days to find any evidence that would exculpate you. If no new evidence is found or someone else confesses on day thirty-one, you are SOL.

George W. Bush's record over five and half years is to have made this draconian system even worse; at every single turn where he could have done something to make the system less savagely punitive, he went out of his way to do the opposite.

While we have no interest in Bush's "youthful indiscretions," we do think it is fair to call him on his oft-repeated claim that he has learned from his mistakes. What did he learn? Where is the evidence that he learned anything at all?

Twenty-one percent of the people in Texas prisons are there on drug-related charges. Assume George W. Bush as a young man smoked marijuana. There are now 7,400 people in Texas state prisons on marijuana charges, (From statistics compiled by the justice Department's Bureau of justice Statistics and the Marijuana Project) and 3,100 of them are there for possession only. According to the U.S. Bureau of Justice Statistics, there are at least 5,700 more in Texas county jails for possession of marijuana only. That's at least 8,800 people doing time for doing exactly what George W. Bush might have done. If you assume George W. Bush used cocaine as a young man, there are at least 8,300 in Texas prisons for possession only. The case of Melinda George, who was sentenced to ninety-nine years in prison for possession of one tenth of a gram of cocaine, is merely the most infamous of the Texas coke cases. (Ms. George had hacked off her jury by failing to show for one court appearance, an omission that cost her heavily) According to the Texas Department of Public Safety, 28,158 people were arrested in the state last year for possession of cocaine.

Because he was a rich white kid with an important daddy, Bush's chances of going to prison for drug use were nil. Yet there is no recognition anywhere in his record of "There but for the grace of God go I. " In fact, to the contrary, Bush has acted to make sure that poor folks have even less access to justice in the system.

He vetoed a bill in the summer of '99 that would have required each county to set up a system-any kind of system for appointing attorneys to represent indigent defendants. We believe Texas is the only state in the country with no system at all for meeting the constitutional requirement that indigent defendants be provided counsel. Instead, each district judge is in charge of appointing counsel for those defendants before him or her. And each judge can do this by whatever means His Honor chooses, including the traditional brother-in-law merit system.

just for starters, district Judges are elected, which means they are sensitive to campaign contributors. Surprisingly, 25 percent of Texas' district Judges admitted in a state bar poll that campaign contributions do affect their appointment decisions. We have one well-documented case where the lawyer slept through the testimony in his client's case, which ended with a death sentence. In another, the appointed attorney met his client for the first time during jury selection and refused to consider the client's alibi, which was that he was incarcerated in another county at the time of the crime. This citizen spent five years behind bars before a federal judge threw the case out. And in many, many cases defendants have spent months in jail before they were even assigned a lawyer.

In response to these and many more documented abuses, the Legislature overwhelmingly passed and sent to Governor Bush the bill requiring counties to have a system that would provide a lawyer for an indigent client within twenty days of requesting one. Actually, most Texas judges already meet that requirement, but there are far too many exceptions. People spend literally months in jail without a lawyer. The bill had the support of a wide range of legal scholars, county officials, defense attorneys-in fact, everybody except the district judges, long accustomed to total, personal power over indigent defendants who appear before them.

Bush caved to the district judges and vetoed the bill, saying it would be "a drastic change in the way indigent criminal defendants are assigned counsel." Drastic? Twenty days? In most of the country, defendants must have a lawyer within seventy-two hours.

Bush also came out against a bill that would have prohibited the use of the death penalty against profoundly retarded criminals; instead, a capital murderer found to be retarded would have been sentenced to life in prison without parole. In 1989 the U.S. Supreme Court ruled that although mental retardation could constitute a mitigating circumstance in a death-penalty case, it would be up to the states to legislate to that effect. Since then, twelve of the states that have the death penalty have prohibited execution of the mentally retarded and Congress has banned it in federal cases. You've met Labrador retrievers brighter than some of the people Texas executes.

Bush's sole explanation for his position was "I like the law the way it is right now." Texans love the death penalty, but a 1998 Texas Poll shows 73 percent of those in the state are opposed to executing the retarded. Nationally, two-thirds of those polled on the question support a ban on the death penalty for mentally retarded murderers. There wasn't even a political percentage in Bush's stand.

One retardate thought he had been sentenced to death because he didn't know how to read and kept trying desperately to learn while he was in prison, thinking it would save him. Another kept asking his legal-aid lawyer what he should wear to his funeral, under the impression that he would be there for it. And there is a possibly apocryphal story-we were not able to confirm it-about a retarded inmate who asked for pudding for dessert with his last supper. When guards asked why he hadn't eaten the pudding, he said he was saving it for later.

The bill Bush opposed set retardation at an IQ of less than 65, even though 70 is the national norm; the law would not have applied to those currently on death row. The Republican-dominated Senate passed the bill, but House members were nervous about Bush's stated opposition and let it die without action, so he didn't have to veto it after all.

It vas especially puzzling, since the bill would have been a perfect showcase for "compassionate conservatism "--it had broad popular support, affected very few people, and cost nothing.

Whether or not Bush used drugs in the late 1960s and early 1970s, Texas then had the harshest drug laws in the nation: First-offense possession of any amount of marijuana was a two-to-life felony. You may need to read that again: two years to life in prison for first-offense possession of any amount of marijuana. The most notable victim of that law was a young black activist from Houston, Lee Otis Johnson, who got thirty years for passing a joint (not smoking it or selling it, passing it) in the presence of an undercover cop." This law made no observable difference to an entire generation of young Texans, who got stoned just as often as young people anywhere else in the country. It was finally changed in August 1973, after even our Legislature had to acknowledge it was making no difference. Oddly enough, the state of New York then adopted the same ridiculously stringent drug laws the state of Texas had just dropped-as usual, not because it made any sense, but because the then-governor,

*Johnson, who had led civil rights demonstrations at Texas Southern University, was clearly the target of a setup by the Houston Police Department, which in those days had Klan members in its headquarters. For years he was the most famous political prisoner in Texas. In 1968, when Governor Preston Smith made a campaign speech at the University of Houston, the students chanted, "Free Lee Otis! Free Lee Otis!" so loudly that Smith was unable to finish the speech. Next day, all the state's papers were outraged over the discourtesy to the governor. Smith himself, when asked about the Free Lee Otis demo, replied, "Oh! Is that what they was yellin'? I thought they was sayin' 'Frijoles, frijoles.' I couldn't figure out what they had against frijoles. I think that's some kind of dried bean." Johnson was eventually released, but by then his experiences had soured him: he committed another crime and went back in stir.

Nelson Rockefeller, wanted to build a record for being Tuff on Crime.

So Bush, who presumably knows from personal experience that harsh laws do not deter drug use, finally gets to be governor himself, and what does he do? Supports tougher drug laws. In 1997 Bush signed a law making the penalties for possession of less than one gram of cocaine even harsher. Before he signed that law, state sentencing guidelines required that a judge give mandatory probation in such a case; the new law allows judges to sentence those in possession of less than one gram of cocaine to jail. In 1995 Bush signed a bill increasing the punishment for anyone selling or possessing drugs within one thousand feet of a school or a school bus.

Again, the issue here is what Bush learned. Time and time and time again he has said the mistakes he made are not important, all that matters is that he learned from those mistakes. What did he learn?

When Ann Richards left office, Texas had just started on one of the most ambitious programs in the country to treat drug and alcohol addiction among prisoners. This has long been the great goal of those who work with addictive disease: to get treatment in the prisons, where it is so demonstrably needed. The program was the Joint legacy of Richards and Lieutenant Governor Bob Bullock, both recovering alcoholics. " According to the Texas Department of Criminal justice's own figures--taken from academic, psychological, and medical tests given all entering prisoners

*Though Bullock and Richards later fell out with one another for complicated reasons, Bullock never forgot that when he returned to Austin at two in the morning after a month at "whiskey school" in California, sober for the first time in years and scared to death he would drink again, there was one person at the airport to meet him-Ann Richards.

80 to 85 percent of those in Texas prisons have a history of drug or alcohol abuse. ]'he figure is higher for women. "Substance-abuse problem" is defined as having abused drugs at the time of the crime or within thee previous thirty days.

Richards and Bullock began the effort to fund significant drug-rehabilitation programs in the prisons in 1991. The Lege agreed to drug rehab for fourteen thousand prisoners as soon as the TDCJ had enough beds for all prisoners. This was during the enormous prison-building; spree; the state went from 41,000 beds in 1989 to 1510,000, including 5,000 for youth offenders. In '91 the Lege approved the first billion-dollar bond issue for prison bundling. All this took place, of course, because the state was under court order; federal judge William Wayne justice of the Eastern District had by then declared overcrowding in state prisons so severe it amounted to unconstitutionally cruel and unusual punishment. Every summer the prisoners, crammed together practically on top of one another in the suffocating East Texas heat, would have mini-riots. So, the number of prison beds tripled during Richards' administration, at a cost of $1.7 billion. Meanwhile, in order to meet the! court order on overcrowding, the state's prisoners were kept longer in the county jails, and the jails backed up and overflowed, so the counties sued the state, which then had to pay a huge daily fine. It was a mess.

By 1993, TDCJ had built some new beds and was ready to start a drug-treatment program; the Lege then authorized another billion in bonds for even more beds. According to the studies and experts consulted when Texas first set up its in-prison substance-abuse program, one critical element is the timing. Putting the treatment near the end of a prisoner's sentence maximizes the benefit, since the goal is for the prisoner to carry the techniques of restraint into the real world. Follow-up Is equally critical for the same reason.

Of the several types of drug treatment and counseling now in use, the best option seems to be a therapeutic community, modeled after Phoenix House and similar efforts. Richards' staff felt strongly that the program should not be administered by the TDCJ, which still tends to produce old-style Texas wardens. The appropriation for the physical plant went through the TDCJ, but the treatment program itself was funded through the Texas Commission on Alcohol and Drug Abuse (called TCADA, an acronym we can almost pronounce). Because some legislators were interested in "front-door" programs-for prisoners just coming into the system-rather than the "back-door" approach most experts recommend, additional money was put into those beds. Carol Vance, a Richards appointee, former D.A. in Houston, and devout Christian, also had a voice in the program, and he wanted Christian-based and values-based rehab programs. These are short-term, front-end programs with no aftercare, and they are now part of the plea-bargaining system: Cop down to a lesser charge, do six months in a prison rehab program, and you're out.

In the '94 campaign, Bush specifically campaigned against the drug treatment program, vowing to take $25 million out of it to incarcerate more juveniles. The original program has been pretty much bastardized; mostly because nobody is paying much attention to it, it has no champions. Even Bullock didn't try to save it, feeling it was "Ann's deal" and he was sore at her. In the '95 session, Representative Rob Junell got a hard-on against the folks at TCADA for allegedly wasting money, so he took the program away from them

and put it under TDCJ, ' in whose less-than-tender care it has since resided. Bottom line: At the end of '94 Texas had 4,261 beds for in-prison, back-door, the therapeutic-community unity treatment with follow-up, and there were another 2,000 on line. In late 1999 there are 5,300 beds available for all the drug-treatment programs, but only 800 are for the backdoor beds originally envisioned. The state has relied on experts who say most of the prisoners with addictions are in denial so treatment would be a waste of money. (Treatment, of course, is designed to break through denial.) Another problem is that the back-door program in TDCJ depends on the parole board first deciding to release a con, and the parole board just doesn't do much paroling.

It is especially tragic that Texas let this opportunity slip away, since more and more studies of successful programs in other states show an astonishing payoff. The federal Bureau of Prisons says inmates who have received treatment are 73 percent less likely to be rearrested in the first six months after release. A 1997 Rand Corporation study says treatment reduces about ten times more serious crime than conventional law enforcement does and fifteen times more than mandatory minimums. A state of California study shows that every dollar spent on treatment saves seven dollars in reduced hospital admissions and law-enforcement costs.

Bush's hard-liner attitude toward anyone in prison includes some notorious cases. In 1985 Kevin James Byrd, a twenty-two-year-old black Houstonian, was convicted of brutally raping a pregnant woman. He was convicted on the word of the victim, who saw him in a grocery store four months after the crime and identified him as her rapist. This was four years before Houston courts began allowing DNA evidence in trials. Byrd spent twelve years in prison, always maintaining his innocence. An old friend finally gave him some financial help so he could pay for DNA tests, which proved it was not his semen in the victim.

Harris County district attorney Johnny Holmes, a Republican law-'n'-order man to the bone, and the district Judge in the case and even all eighteen members of the Board of Pardons and Paroles recommended that Bush pardon Kevin Byrd. He refused to do it. This refusal caused a flap in the media, so Bush's aides announced that the governor wanted "all other legal remedies exhausted." This meant Byrd had to raise money to get his case through the state's appellate courts, even though Holmes made it clear he thought Byrd was innocent and had no intention of retrying him, even if the appeals court granted a new trial. Byrd eventually got his pardon, but only after he had spent more time and more money lumping through legal hoops.

Texas' questionable system of pardons came under national scrutiny in 1998 in the case of Karla Faye Tucker. Fifteen years earlier Tucker, then a twenty-three-year-old prostitute and drug addict, and her boyfriend had bludgeoned two people to death with a pickax. During her years in prison, she became a born-again Christian and began a prison ministry that eventually included extensive correspondence with people in prison in other states and other countries, as well as many, many in Texas. She admitted her crime and expressed remorse. She even won over Pat Robertson, head of the Christian Coalition, who pleaded with Bush to spare her life. If he did not, said Robertson, he was "a man of no mercy."

Tucker's attorney asked that the death penalty be commuted to life in prison without parole, on the grounds that she had demonstrated repentance and rehabilitation. Those familiar with the state's death row politics thought she had a chance. Not as a woman, no one was making that plea; nor as a born-again Christian-Texas prisoners often find God, and it has never yet been held grounds for commuting the death sentence. However, using the old Christian distinction between faith and works-of which Governor Bush is presumably aware-Tucker had not just faith but works to display, years of work, an enormous volume of correspondence.

The Board of Pardons and Paroles never even met to consider Tucker's request for commutation. They never met with her or her attorney, never voted in public, and never explained their reasons for turning her down. And this is standard operating procedure in Texas. The board has no guidelines for when to recommend commutation; it carries out all its decisions in secret, not even required to meet in public on death-penalty cases, so the public has no way of knowing why the board does what it does. Nor does anyone outside the system know what is in a prisoner's file, on which the board bases its decision. Defense attorneys claim prison records and prisoner files often contain terrible misinformation, another reason to make the hearings public.

In September 1999, a profile of Bush in Talk magazine appeared and contained this passage by reporter Tucker Carlson:

In the weeks before the execution, Bush says, Bianca Jagger and a number of other protesters came to Austin to demand clemency for Tucker. "Did you meet with any of them?" I ask.

Bush whips around and stares at me. "No, I didn't meet

with any of them," he snaps, as though I've just asked the dumbest question ever posed. "I didn't meet with Larry King either when he came down for it. I watched his interview with her, though. He asked her real difficult questions, like, 'What would you say to Governor Bush?'

"What was her answer?" I wonder.

"Please," Bush whimpers, his lips pursed in mock desperation, "don't kill me."

I must look shocked-ridiculing the pleas of a condemned prisoner who has since been executed seems odd and cruel, even for someone as militantly anti-crime as Bush because he immediately stops smirking.

Carlson also reports that the exchange Bush mimicked never took place during the King interview. When the Talk article appeared, the Bush campaign issued a statement saying Carlson had misunderstood Bush. Carlson replied in turn that he did not misunderstand.

A state official who spent time with Bush the day Tucker was to be executed says Bush seemed genuinely troubled over it and spent a long time in private conversation talking about the whole issue of capital punishment. At a guess, his being flip about it with Carlson was a defensive reaction. But we find no evidence Bush has been troubled by the other ninety-nine executions he could have stopped.

Shortly after Tucker's execution in February of '98, two other convicted killers facing execution challenged the secretive clemency process in federal court. judge Sam Sparks ruled that the system was legal but strongly deplored it from the bench, stating, "Even though this Board represents the public, there is nothing-absolutely no way the public, even the governor, can know the reason for their vote without asking each one of them. I find that appalling. A flip of the coin would be more merciful than these votes, and the procedure] is extremely poor and certainly minimal."

So in 1999, Representative Elliott Naishtat introduced a modest bill to improve the system, requiring the board to hold a public hearing if a prisoner under death sentence requested commutation to imprisonment. The board was not required to vote in public, nor were any guidelines suggested. The prisoner or his attorney would be permitted to appear, and later, after its determination, the board would be required to give a reason for its decision.

The bill caused a great hue and cry of opposition from the governor's office. Bush said since a federal judge had found the system constitutional, he saw nothing wrong with its secrecy. He said public hearings would cause people to "rant and rave" and get all emotional. The bill died.

When Bush ran for governor in 1994 he made a big issue of what appeared to be an increase in juvenile crime. He would announce: "It's always been normal, when a child turns into a criminal, to say that it's our fault-society's fault. Well, under George W. Bush, it's your fault. You're going to get locked up because we aren't going to have any more guilt-ridden thought that says we are somehow responsible." So in his first session, Bush was part of a big push to change the juvenile-justice code. It was completely rewritten, and the population of the state's juvenile prisons has since tripled. Hal Gaither, a Bush adviser and Dallas juvenile-court judge who describes himself as "the most conservative man in Texas," told The New York Times, "If George W. Bush can do for the United States what he has done for Texas, no one can lick his boots."

If you think the main purpose of a juvenile-justice system should be punishment, by all means, lick Bush's boots.

The trouble with Texas as the National Laboratory for Bad Government is that we never throw away an old bad idea. The poor man from the Times identified "protecting the best interest of the child" as "the historical role" of the juvenile-justice system. Not in this state. The old Texas Youth Commission was so notoriously punitive it finally came under the scrutiny of judge justice, long before the adult prisons did. On August 31, 1973, justice issued a restraining order that is among the most hideous reading in the annals of American law. In it, the Youth Commission is enjoined from beating, gassing, racking, encouraging homosexual rape, denying medical care, and torturing kids in reform school in a specified list of ways that make you want to vomit just reading them. Getting tough on youth crime a new idea? Not in this state. We already tried it. It didn't work. For years, the single highest predictor of who wound up in adult prisons in Texas was who had done time as a juvenile; we were running factories making adult criminals. That's changing-the predictor, not the system. In a depressing portent of things to come, corrections systems are now finding that the single greatest predictor of who winds up in prison is having a father who did time in prison.

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