Should reformers praise or chastise Rick Perry's criminal justice record?

Via Sentencing Law & Policy, my colleague Cory Session of the Innocence Project of Texas went just a bit further in praising Governor Perry's criminal justice record than Grits would have. According to Yahoo! News:

Cory Session's brother Tim Cole died in the middle of a 25-year prison sentence for a crime he didn't commit.

So it's something of a surprise that Session, who serves a policy director for Texas' Innocence Project, has nothing but good things to say about Texas Gov. Rick Perry.

Perry is known as a tough-on-crime governor who heartily supports the death penalty. He's presided over more executions than any other governor since the death penalty was reinstated 35 years ago. When a special commission began to look into evidence that Perry could have presided over the execution of an innocent man, the governor abruptly removed three of its members and appointed allies in their stead, effectively quashing the probe.

But Session says Perry's support of other criminal justice reforms overshadow his record on the death penalty.

"Governor Perry has done an exceptional job when it comes to criminal justice reform, more so than any other governor in Texas history," Session told The Lookout. "That's a record nobody can take away from him. His stance on the death penalty, well that's another thing. But we are very pleased with that record that he has."

Readers may recall that last month Grits compiled a list of "Things to like about Rick Perry as a criminal justice reformer," citing a fairly substantial list of criminal-justice reforms Perry has signed into law over the years, as well as his pardons of Tim Cole, the Tulia defendants, and other reform-minded actions.

Nearly all of the national criticism of Texas justice during Perry's campaign has centered on the death penalty, but seldom is Perry given credit for signing a life-without-parole law in 2005 that reduced new death sentences to low levels not seen since the Texas reinstated the practice three decades ago. In FY 2009, according to the Texas Coalition to Abolish the Death Penalty, Texas juries sent just eight new defendants to death row - the lowest number in any single year under (at least) the state's four prior governors. That's a direct result of legislation Rick Perry signed. (CORRECTION: A reader alerts me that, according to TDCJ's annual statistical reports, 11 new defendants were sent to death row in FY 2009 and 10 in FY 2010, numbers which are for some reason slightly higher than reported in the MSM.)

It's been said many times that Texas executed more people during Rick Perry's tenure than under any modern US Governor, but that stems mainly from two factors: His longevity in office and the fact that, because death cases take so long to get through the appeals process, the number of executions in any given year more reflects the policies of the past than the present. Most executions on Perry's watch stemmed from convictions obtained during the tenures of Ann Richards, Bill Clements, and Mark White, plus a few from the Bush era, and his record on the subject differs little from those governors save for his support of life without parole (which couldn't pass under any of his predecessors when Democrats controlled the Legislature). He also signed into law the Texas Fair Defense Act, which created improved standards for attorneys representing death-eligible clients.

Despite the common refrain that Perry "presided" over 235 executions (so far), it's not like he plays a big role in the process. The number of death sentences carried out in Texas really is a function of decisions made years ago by prosecutors, juries and judges, (not to mention the shortcomings of an often pathetic criminal defense bar). The Governor simply has very little to do with it, and his clemency power is much more restricted than executives in other states. Just as his critics overstate the governor's role, Rick Perry claiming credit for the number of executions in Texas is a lot like the rooster who believes his crowing caused the sunrise.

IMO, Perry has latched onto the death-penalty issue so vehemently because it's virtually the only item in his portfolio that crosses partisan lines to grab independents and conservative Democrats (since the death penalty is widely supported across all those demographics). Indeed, polls show that even those who believe the state has already executed an innocent person still support the death penalty by roughly a 60-40 margin. From a purely Machiavellian political standpoint, there's simply no downside for politicians in Texas (or in the GOP primary) from being seen as an eager executioner.

Indeed, arguably death-penalty demagoguery has played an important strategic role in Texas' criminal justice reforms, diverting media focus from more  workaday criminal justice issues to an area where pols can look "tuff," even as they enact more moderate or even progressive reforms in other areas. Perry has signed legislation diverting tens of thousands of criminals from prison, but because of the "most-ever executions" tag, it'd be impossible in the political arena to successfully label him "soft on crime."

All that said, I also agree with Texas Criminal Justice Coalition chief Ana Correa's assessment in the story, that "He has not been an obstacle for us but he has also not been a key leader." (In the interest of full disclosure, I'm presently employed doing consulting work for both TCJC and the Innocence Project of Texas.) Criminal justice reform has never been a Perry priority, but as support for reforms grew among Texas Republicans, quite a few good bills passed on his watch and with a few notable exceptions he usually signed them. Governors in Texas wield relatively little power save for vetoes and appointments, so not vetoing things gets him credit, in my book, but it doesn't mean he'd make criminal-justice reform any sort of priority if he were President. Indeed, I seriously doubt he would do so.

Rick Perry doesn't deserve demonization for his criminal-justice record; he's not the one-dimensional, execution-crazed nutjob that death-penalty abolitionists have portrayed. But he also doesn't merit the effusive praise Cory lavished on him in this particular article. Tolerating reform is different from championing it.