It is not exactly the Christmas Truce of 1914, when German and Allied soldiers silenced their murderous guns, crawled out of their trenches and across rolls of barbed wire to shake hands, exchanged gift of cigarettes and plum pudding, and sang carols together. It was a remarkable display of good sense and goodwill. Then, of course, the shellings and shootings resumed.
Fast forward 104 years and something of a Christmas spirit emerged last week through the stale stench of entrenched political hostilities in Washington. In a remarkable display of good sense and goodwill the House, the Senate, and the White House, Republicans and Democrats, enacted a law designed to bring more rationality, effectiveness, and even mercy to our federal criminal justice system.
The new law is designed to reduce the length of sentences and the number of prisoners in federal prisons. It will give judges more leeway in avoiding draconian punishments under current sentencing guidelines. It will decrease automatic sentences under so-called “three strikes” rules, including for nonviolent drug offenses, from life to a still-stiff 25 years. It will empower inmates to further reduce their sentences for good behavior and for taking vocational classes.
It will retroactively apply a 2010 law that reduced the racist disparities between punishment for the mostly black use of crack cocaine and the mostly white use of powdered cocaine. It will ban the shackling of women in labor and require that inmates be imprisoned closer to their families.
The law is hardly radical, but it may be the beginning of a turn away from the “war on crime” that gave the United States the highest incarceration rate in the world. We are slightly less than 5 percent of the world but have nearly a quarter of the world’s prison population. The numbers are even worse when you consider race. Blacks are 12 percent of the U.S. population but 33 percent of state and federal inmates. Hispanics are 16 percent of the population and 23 percent of the imprisoned. Whites are 64 percent of the population and only 30 percent of prisoners.
Much of the racial gap has to do with poverty. The poor are more heavily policed and less likely to be able to afford a good legal defense. The new law isn’t going to bring justice to the U.S. criminal justice system, but it may live up to its title: The First Step Act.
Perhaps as surprising as the ability of warring factions in Washington to enact the new law is the widespread perception that Texas has led the way. But there’s a lot of truth to the perception, despite the national mythology of Texas. In a number of areas, Texas leads the nation in criminal justice reform.
In 2005, Texas set up the nation’s first Forensic Science Commission. Made up mostly of actual scientists, it has exposed a number of junk science practices that have led to wrongful convictions. For example, its investigation of several arson convictions has led to a substantial reform in the arson investigation field.
The commission survived an early attempt by then-Gov. Rick Perry to kill it. Perry was mounting a presidential campaign as the commission was investigating whether bad science led to the conviction of a man whose children had died in a house fire. Perry had ignored a plea by national arson experts on behalf of Cameron Todd Willingham. They had determined that Willingham had been convicted based on egregiously bad arson theories. Perry turned a deaf ear, Cameron was executed.
Perry tried to thwart the commission’s investigation by replacing the scientist who chaired the commission with Williamson County District Attorney John Bradley. Bradley attempted to rewrite the commission’s by-laws in ways that would give him more power than its scientist members. He failed. Not only has the Forensic Science Commission become a national leader in policing the validity of forensic practices, but the state enacted a pioneering law allowing anyone convicted on the basis of what turned out to be faulty “science” to petition to have his or her conviction overturned.
Ironically, Bradley had fought for nearly six years the DNA testing of a bandana in the case of Michael Morton, who had been imprisoned for nearly 25 years for murdering his wife. When a court finally ordered that the bandana be tested, it not only cleared Morton but identified as her killer an imprisoned repeat offender who had subsequently killed an Austin woman in the same manner he did Mrs. Morton.
By the time this proof came, the Texas Senate had already blocked confirmation of Bradley. But the Morton case had widespread consequences that demonstrated Texas leadership in criminal justice reform.
Bradley lost his re-election bid after finding his campaign signs adorned with bandanas. His predecessor as DA, Ken Anderson, who was found to had hidden evidence in the Morton case, was disbarred. He lost his seat on a district court bench and served 10 days in jail. As The New York Times pointed out, it was an embarrassingly light sentence compared to the 25 years Morton spent in prison, but it may be the only time a U.S. prosecutor has ever been jailed for prosecutorial misconduct. (Another Texas prosecutor, Charles Sebesta, was disbarred in 2015 for severe prosecutorial misconduct that wrongfully put Anthony Graves on death row.)
Even more importantly, the scandal led to passage of the Michael Morton Act. It requires prosecutors to share with defense attorneys all evidence they have, regardless of whether they consider it relevant. The bill, which may establish the most sweeping discovery rights in the nation, was carefully negotiated in the Senate and passed unanimously in the House in 2013.
Already Texas was a national leader in compensation for citizens who are wrongfully convicted. They get $80,000 for each year in prison, paid out in the form of an annuity so they won’t be swindled out of it. In addition, they get medical and educational benefits. In the past 25 years the state has paid nearly $100 million to more than 100 wrongfully convicted men and women.
In the area of shrinking the prison population, Texas has mixed results. Between 2009 and 2016, the system closed eight prisons while reducing the male population by 8,500. But the female population grew by 500 over that period.
And the state still has much to do. We have life without parole for other than death penalty cases. Crimes that are not worthy of long sentences can result in protracted incarceration through enhancements such as possession of a weapon and repeat offenses. What’s more, those put on parole often are required to wear an ankle monitor, but many cannot afford the fees for private vendors who get profitable contracts from the state.
Happily, the bonding system that keeps many in jail simply because of poverty appears to be on the brink of collapse due to federal lawsuits.
It’s time in Texas for the next step.