Is Texas Tough on Crime but Soft on Criminal Procedure?

By Gershowitz, Adam M. | American Criminal Law Review, Winter 2012 | Go to article overview
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Is Texas Tough on Crime but Soft on Criminal Procedure?


Gershowitz, Adam M., American Criminal Law Review


Although Texas is well known for imposing tough punishments on convicted defendants, it is surprisingly generous in affording criminal procedure protections. In a variety of areas, including search and seizure rules, confession requirements, the availability of bail, prosecutorial discovery obligations, and jury trial guarantees, Texas affords protections vastly in excess of what is required by the United States Constitution. Even more shocking, these criminal procedure guarantees come almost entirely from Texas statutes approved by the legislature, not activist rules imposed by judges. This Article explores Texas's reputation as a tough-on-crime state and the seeming inconsistency between Texas being tough on crime but generous on criminal procedure.

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Everyone knows that Texas is tough on crime. Over the last four decades, Texas has sent more than 1000 inmates to death row, making it the "capital of capital punishment." (1) Texas is also a leader in incarceration: with nearly 175,000 of its residents behind bars, (2) Texas ranks first in the nation in raw incarceration (3) and second in per capita incarceration. (4) Shaming punishments are also popular in the Lone Star State; one judge shamed so many offenders that his constituents elected him to Congress as a result. (5) It is therefore not surprising that many people mistakenly think "Don't Mess With Texas" is the state's motto, (6) rather than simply a clever bumper sticker designed to fight littering. (7)

Yet, the story about Texas criminal justice is far more complicated than its reputation reveals. Despite its tough-on-crime reputation, Texas actually has numerous criminal procedure rules that are very favorable to criminal defendants. These pro-defendant protections are not mandated by the United States Constitution or the courts. Rather, Texas's pro-defendant criminal procedure rules are almost exclusively created by Texas statutes enacted by elected legislators, not judges. (8) These protections include strict rules on the admissibility of confessions, extremely pro-defendant search and seizure guarantees, tough limits on denying bail to criminal defendants, favorable discovery rules, and expansive jury trial rights, to name a few. In some instances, the rules are so favorable to defendants that almost every other state in the nation has rejected them. These rules are a major hindrance to prosecutors and thus directly contradict the notion that Texas is universally hostile to criminal defendants.

This Article explores Texas's reputation as a tough-on-crime state, as well as the little-known fact that the Texas Code of Criminal Procedure ("Texas Code") is quite favorable to criminal defendants. Of course, I do not want to overstate my case. I am not arguing that Texas has the most pro-defendant code of criminal procedure in the nation, nor am I asserting in any way that the protections Texas affords are bad public policy. Rather, I am simply making a descriptive observation that Texas is not nearly as tough as its reputation suggests when it comes to criminal procedure. Part I of this Article begins by reviewing reasons why Texas is commonly seen as tough on crime: from its use of the death penalty, to its packed prisons, to its indeterminate sentencing scheme which can result in huge upfront sentences that are reduced on the back-end by parole. Part II then reviews some of Texas's criminal procedure rules that make it far more favorable to criminal defendants than other states. Finally, Part III raises possible reasons for the inconsistency between Texas's punitiveness and its favorable criminal procedure rules.

I. TEXAS IS TOUGH ON CRIME (OR So IT SEEMS)

It is not hard to make the case for Texas being tough on crime. From capital punishment to incarceration to shaming sanctions, Texas is at the forefront of imposing stiff punishments. In the Sections below, I offer a brief tour of Texas's reputation for punitiveness.

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