Has Texas fixed the death penalty?, and other notable Texan commentary on the justice system

A few items, while I have you:

Views of the system from the perspective of the punished
These recent opinion pieces from Texans with experience on the wrong side of the justice system merit Grits' readers attention:

• Beverly Harrison, The Marshall Project, "A Decades Old Conviction Cost Me My Post-Retirement Job"
• Jayson Hawkins, The Marshall Project/Vice, "Sentenced to Life in Prison: And a Job Making Furniture"
• Jorge Renaud, Texas Observer, "The Road to Huntsville"

Discussing drug abuse and families
Meanwhile, with tens of thousands of drug overdose deaths making national headlines, Texans Care for Children this fall in Austin will launch an interesting-looking three-part discussion series on drug abuse, families, and public policy. For state-level policy folk in Texas, it's a good time to be thinking about this sort of big picture analysis more than a year out from the next legislative session. Between Gov. Abbott vetoing Good Samaritan legislation in 2015 - and the Lege declining once again in 2017 to pay for expanded treatment services through reduced incarceration of drug users - it's pretty clear most Texas pols don't yet feel comfortable addressing drug abuse through any but a tough-on-crime lens. Advocates will need new strategies, alliances and messages to get much further. 

Is Texas on the way to fixing its death penalty?

Finally, Pat Metze, a Texas Tech law prof, looked at criticism of Texas' death penalty system in a recent law review article and thinks the Legislature is on its way to solving the problem!! As luck would have it, your correspondent worked on many of the initiatives he's lauding - mostly innocence-type work - which he frames as responses to concerns raised in a 2013 American Bar Association report that was critical of several aspects of Texas' capital-punishment system.

But the Legislature didn't view its innocence work through a capital frame, and it's at best a stretch to attribute anything they did as a response to critics of capital punishment. By contrast, most of those innocence reforms could only be passed because they weren't framed as specifically affecting capital cases.

For the most prominent example, the Texas state fire marshal ultimately was happy to correct erroneous arson science and conduct a comprehensive review of disputed cases. But initially, debates over arson science were framed around the case of Todd Willingham, who was executed based on flawed arson testimony in the face of his claims of innocence. The resulting culture-war brouhaha nearly caused then-Gov. Rick Perry to disband the Texas Forensic Science Commission, the FSC's general counsel revealed to a recent national gathering. That pattern has been consistent - reforms can often happen in Texas if they're not about the death penalty or other hot-button culture-war topics - which is why it's odd to portray Texas as acting specifically to correct flaws in the capital punishment system.

Given that the US Supreme Court has taken to bench slapping the Lone Star State two or three times per year on death-penalty matters (e.g., Moore, Buck, etc.), the perspective Prof. Metze offers here definitely qualifies as a revisionist view. A capital-attorney friend who'd seen Metze's article told me it made her "blood boil."

In that light, I teasingly asked Grits' contributing writer Jennifer Laurin, one of the authors of the 2013 ABA report, whether this means "Mission Accomplished!" She responded, "The short answer is that Texas has made big strides on innocence reform, and continues not to touch anything that redounds to the exclusive benefit of capital defendants. And actually I think the analysis in the article bears that out." More on this later, for sure, but I wanted to flag the link.

One of these days these boots are gonna walk all over you

This unfortunate Reuters story (Dec. 22) about a murderer-turned-bootmaker-turned-parole-violator provides a window into the difficulties of ex-prisoners trying to reintegrate into society, especially those who've spent many years behind bars. The article opened:

Lawmen would come from across Texas just to walk a few miles in the boots made by inmate Arnold Darby.

Darby, 64, soft-spoken, bespectacled and tattooed, was once one of the most prodigious bootmakers in the Texas prison system, turning out more than a thousand pairs of custom-made footwear for police, FBI agents and the governor's office, prison officials said.

But freedom put an end to that.

After 37 years behind bars, serving time for robbery and murder, Darby was released on parole in 2011.

The highly skilled bootmaker was looking to open his own shop in a state that loves its boots. But lacking start-up cash, he settled for making boxes at a food-processing plant.

After only a year on the outside, Darby violated parole by driving while intoxicated and was sent back to prison.

This time, however, he has not been in the new unit long enough to earn what is considered a privileged position in a workshop, and the once-vaunted jailhouse cobbler is not sure if he will ever make boots again.

"I was working six or seven days a week, and I started drinking a little bit. That is what brought me back," said Darby in an interview from the Goree Unit prison in Huntsville, about 70 miles north of Houston.

The Texas parole board said in an emailed statement: "Mr. Darby was revoked on August 29, 2012, after he waived his hearing for DWI, failure to stop and render information and violation of the GPS monitor."

His next parole review is in March 2015, and Darby does not expect to be at a bootmaking bench until then.

"He was once a model prisoner and he made boots for everybody" said Larry Fitzgerald, a longtime spokesman for the Texas Department of Criminal Justice who has since retired.

"You have to be, to work in the craft shop - because you are surrounded by weapons of all kinds," he said.

Fitzgerald himself owns three pairs of Darby's boots.

Darby went to prison in 1974 for aggravated robbery. He later received life sentences for killing two fellow inmates in gang violence. There was also an attempt to escape along the way, where he was shot in the head.

"My biggest regret of all was getting in the game," Darby said.

So many lamentable angles to this article: A murderer who no one thinks will kill again but still could be locked up forever. An inmate leaving prison after decades without effective treatment for alcoholism, returning over a DWI. (Too bad, given his age and circumstances, he wasn't considered a candidate for treatment at an Intermediate Sanctions Facility instead of leaping to immediate revocation.) An aging prisoner whose healthcare costs will be borne by the state of Texas instead of Medicare. A skilled bootmaker who can't practice his craft outside prison and now, can't do so on this inside, either. A prodigious craftsman who made high-end footwear on the cheap for lawmen across the state but only made about $2,000 per year doing so, nearly all of which was spent at the prison commissary. (In the outside world, you can pay $600 to $800 or more for a single pair of hand-made boots without batting an eye.) Then there are the barriers to successful reentry: A man who entered prison during the era of eight-track tapes and predictably struggled to re-launch his life in the 21st century. Someone with a marketable skill but no access to capital and whose record prevented employment in his field, leaving him underemployed at a job that failed to utilize his talents. These aspects of the story aren't unique to Mr. Darby, but his example epitomizes them.

I'm sure there are many who think Darby should never have been released in the first place. But Texas prisons release more than 70,000 inmates per year and, from a systemic perspective, that's not a realistic view. With as many people as the state keeps sending in, some of them have to be let out. And as a general rule, people age out of crime. A return to drinking may be more typical of someone of his generation (he and Travis County DA Rosemay Lehmberg, who was recently convicted of DWI, are about the same age), but it's highly unlikely this person would ever have returned to robbery or killing.

Mr. Darby's story exemplifies the formidable obstacles to successful reentry for those leaving prison and reminds us that the state places too little emphasis in assisting ex-cons in making a new life. As a result, the state will pay for his housing, meals and medical care for a few years longer, providing no real benefit to anyone. If Darby could have found an employer willing to give him a chance to use the skills he'd spent decades honing in prison, maybe this saga would have a more convivial ending.

Prisoner contributions to state capitol construction sparked labor dispute

My great-grandfather worked as a cowboy on the XIT Ranch, which was famously traded to a group of Chicago investors to finance construction of the Texas state capitol. Our family lore surrounding the capitol's construction, however, didn't generally include prisoners significant role: Says the Texas State Historical Association, "Between 1885 and 1887 about 500 prisoners quarried granite and limestone for construction of the new Capitol in Austin; prisoners at the Rusk Penitentiary manufactured the building's interior cast-iron features." Grits should have known that, I suppose, but I was unaware. What's more, the use of prisoners in these capacities was the source of a major labor dispute dubbed the Capitol Boycott, and reading a description of that protracted quarrel, it's a wonder the capitol was ever built at all!

Did a prisoner repair your government computer? Correctional Industries program said to reduce recidivism

The Houston Chronicle yesterday had a nice little article about TDCJ's Texas Correctional Industries program training inmates to perform computer repair, which unlike picking cotton or working on a hoe squad actually teach prisoners a skill that's marketable when they get out. The story opened thusly:

With stacks of broken computers towering toward the ceiling and intense white-clad technicians frowning over workbenches filled with the machines' electronic guts, this could be any high-tech repair shop in America. Or so you may think until rolls of concertina wire bristling from the walls remind you of where you are.

Welcome to Huntsville's Wynne Unit, home of one of the Texas Department of Criminal Justice's two computer repair labs, where each month inmate workers fix or discard up to 250,000 pounds of malfunctioning equipment.

In Texas, a state whose prison work programs are best known for agriculture and license plates, the computer shops represent the cutting edge of a factory system that produces everything from street signs to mattresses for state college dorms and soap for scrubbing jailhouse floors.

Here's a summary of more common types of TCI labor:

Textile operations remain a big part of prison jobs today. Inmates grow and harvest cotton, then spin and weave it into fabric for use in prison clothing, which they sew. Prisoners each month make 110,000 towels, 120,000 pairs of socks, 85,000 shirts and pants, and 75,000 pairs of underwear.

Prison officials say the cost of inmate clothing purchased through a vendor is $7 to $10; making the same clothing in-house costs about $5.

Workers also refurbish public school buses, re-tread tires, produce signs, banners and departmental awards, build furniture, craft shoes and, of course, make license plates

In some cases, writes reporter Allan Turner, "the most valuable lessons taught are simply how to responsibly keep a job. As many as 40 percent of those inmates entering the TCI program have no work experience."

Participants in TCI work have lower recidivism rates, reports the Chron: "Overall in the 156,000-inmate system, he said, up to 24 percent of those released from prison return within three years. Among the inmate workers who stay on the job the longest, recidivism drops to 11 percent."

Risks, rewards of inmate labor and the Thirteenth Amendment

I noticed several recent articles about the use of prisoner labor (both from TDCJ and local jails) to do free work for municipalities, a policy that sounds good on its face but in practice is a two-edged sword, with added security concerns, staffing requirements, a greater risk of escape, and potential displacement of free world workers. See:

• Benefits of inmate labor, Huntsville Item
• Hays Sheriff puts inmates to work at Hays jail to save money, Austin American Statesman
• Sentence to Serve program is one more way to do more with less, Caledonia (MN) Argus

Back in the 19th century and into the 20th, Texas prisons completely paid for themselves by hiring out what amounted to slave labor to private employers at cut rates. In fact, from the perspective of terminology in the 13th Amendment to the US Constitution, it was literally slave labor. ("Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." Emphasis added.) Texas' plantation-based labor system was a primary focus of Robert Perkinson's book, Texas Tough, which described how, for many decades following Reconstruction, convict leasing was the single largest revenue source for the entire state budget.

Today prison and jail inmate labor is mostly performed on behalf of state and local governments and the prison system itself, so it's still a valuable resource even if it's mostly not commodified in the labor market. But free-world workers would likely chafe at prisoners' wider use in that regard, just like folks inevitably complain over prison industries programs and illegal immigrants taking all the good grapefruit picking jobs.

All three of the bulleted articles above essentially depict the positive aspects of using inmate labor. Countering those benefits, consider the situation of a just-captured escapee from a South Texas prison work crew, an episode which is causing TDCJ to reevaluate outside trusty assignments, with the likely result of reducing their number.

The most productive place for offenders to work is in the free world where they pay their own freight plus taxes to support the system instead of leaching from it. (See #5 from Grits' "Six Impossible Things.") In the meantime, inmate labor, as Christ said of the poor, will always be with us. If you've never seen it, set aside thirty minutes one day to watch Pete Seeger's 1966 documentary, Afro-American Work Songs in a Texas Prison; if your attention span's not that long, here's a YouTube preview clip to whet your appetite: