Lone Star Liberation: How Journalists, Policy Gurus, and a Good Ol’ Boy Legislature Made Texas the Capital of Criminal Justice Reform

There’s tough, and then there’s Texas tough. — David Dewhurst, Former Lieutenant Governor of Texas, January 17, 2007.[1]

Few of the Republican political faithful who gathered on the Texas Capitol grounds for Governor Rick Perry’s inauguration would have been shocked by Dewhurst’s characterization. Texas has a well-deserved reputation for being tough on crime. Since 1976, the state has executed more convicts than the next six states combined, and, as of 2014, ten percent of those incarcerated in the U.S. will go to sleep in a prison bed somewhere in Texas.[2] Texas has fought hard to retain this reputation. The state has appeared before the Supreme Court in numerous cases concerning the death penalty.[3] And even now, Texas is arguing before the Court that it should be permitted to execute a mentally retarded convict, as well as a man whose sentencing was tainted by a psychologist who testified the defendant presented an ongoing threat to society because he is black.[4]

Texas’s indelible association with the death penalty has long meant that many, not only in the U.S. but around the world, see Texas as a criminal justice backwater — a proponent of draconian criminal justice policies, where racially-motivated law enforcement officers conduct crooked investigations that lead to faulty trials, long sentences, and bigger prisons that pad the profit margins of even bigger corporations.

But they’re wrong. In fact, over the last decade, Texas (the epicenter of the American conservative movement) has quietly become a national leader in criminal justice reform, incubating innovative policies that have begun to be adopted across the country. The numbers bear this out: Since reform began in 2005, violent crime has fallen 24 percent, and is now at its lowest rate since the 1970s.[5] Property crime has fallen more than 30 percent, to a rate not seen since 1968.[6] Incarceration rates in Texas have fallen from a rate of 741 per 100,000 residents incarcerated (second in the nation), to 588 in 2014 (sixth in the nation), a decrease of 21 percent in the span of just nine years.[7] Meanwhile, Texas has closed three prisons and its spending on criminal justice has flat lined.[8]

In this paper I will explore this surprising phenomenon. I’ll discuss the catalysts for criminal justice reform in Texas, the unusual coalition advocating for change, the substance of the reforms, their effects thus far, and their applicability to the federal criminal justice system.

I. “The Stupidest Thing the State of Texas Has Ever Done”

During the late 1970s, Judge William Justice, a federal district court judge for the Eastern District of Texas, responded to outrageous conditions in Texas prisons by orchestrating Ruiz v. Estelle. This revolutionary case put him in a position to single-handedly overhaul the Texas Department of Corrections.[9] In his 1980 opinion in Ruiz, he found that Texas’s incarceration system constituted “cruel and unusual punishment” and he mandated sweeping reforms that represented a fundamental reworking of Texas’s penal status quo.[10] In short, they didn’t work. As the state’s prison administrators struggled to carry out the broad reforms, Judge Justice’s limits on overcrowding left the state awash in newly-released offenders. In the minds of the voting public, these released offenders contributed to a crime rate that had doubled since 1960.[11] One such released convict was Kenneth McDuff, who upon being paroled in 1989 proceeded to rape and murder multiple women in central Texas.[12] The people of Texas had had enough; it was time to lock ’em up for good. And that meant building more prisons.

By the late 1980s, Texas had added around 25,000 new beds, and in the early 1990s, expansion ramped up even more quickly. From 1990 to 1995, the Texas Department of Criminal Justice’s annual budget grew from $700 million to $2.2 billion.[13] As the construction boom on borrowed funds began, prison construction became attractive for another reason. As Democratic Governor Ann Richards put it then, the expansion of Texas’s prison system constituted “rural economic development,” development that helped her win over rural Texans skeptical of the Democratic Governor’s progressive policies.[14] By 2005, the number of prisoners in Texas had increased by more than 300% since 1985, from just under 40,000 to over 150,000.[15] In 1996, Andy Collins, the architect of the build-up called the expansion “the stupidest thing the state of Texas has ever done.”[16]

To make matters worse, not long after this rapid expansion a series of shocking reports in local and national media showed that filling these prisons and Texas’s death row were many who shouldn’t have been there in the first place.

II. “We are Witnessing History Here in Texas.”

Ernest Ray Willis was a West Texas oil worker, who drank away his money as quickly as he earned it in the rich and dusty oilfields of the Permian Basin.[17] In the early hours of June 11, 1986, Willis says he awoke to find the house in which he, a friend, and two women had passed out after a night of partying, ablaze.[18] In 1987, he was convicted of the murder of the two women who died that night. The conviction was based on the testimony of an arson expert who stated that the blaze must have been set by Willis due to “pour patterns” he had identified on the floor on the building and due to the fact that Willis had suffered no injuries in the blaze.[19]

During the capital murder trial, Willis was prescribed extremely heavy doses of anti-psychotic drugs by a state doctor despite having never experienced symptoms of mental illness.[20] The prosecutor made frequent note of Willis’s dead-pan demeanor and bulging eyes during the trial, common side effects of the drugs.[21] After convicting Willis and sentencing him to death, the Pecos County jurors noted his zombie-like manner as evidence that he was capable of committing such a heinous crime.

In 1991, just before he was to be executed, his execution was stayed based on evidence regarding the drug treatment discovered by his pro bono attorneys from the giant California-based law firm Latham & Watkins. Soon after, an arson expert hired by the new Pecos County district attorney determined that the previous expert’s analysis was based on outdated notions of fire science. By 2004, he was cleared of all charges and released.[22] The news of Willis’s exoneration after 18 years on death row was carried by national outlets The New York Times[23] and the Associated Press.[24] But more important were its effects inside Texas.[25] It and a series of DNA-based exonerations around the same time[26] represented an early signal that something was gravely wrong with Texas’s tough-on-crime stance, a signal that was heard loud and clear by a 20-year veteran of the Texas Senate.

***

In 1992, Texas Senator John Whitmire and his family were held up at gunpoint outside their home in Houston.[27] Though no one was hurt, the perpetrator received a 25-year sentence for the crime. Not long after, Whitmire, a Democrat, was appointed chair of the Senate Criminal Justice Committee, where he began his reform crusade. His described his motivation to a reporter thusly, “It only makes sense to me that if you lock somebody up for armed robbery because they’re supporting their drug habit, hopefully you get rid of their drug habit before you let them out. I was very motivated to fix the problem of bad guys robbing you in your garage for drug money.”[28]

Despite Texas’s tough-on-crime bent at the time, Whitmire made significant strides in the early ’90s under Governor Ann Richards, creating a more rehabilitation-friendly destination for less serious “fourth-degree felonies.”[29] But Whitmire’s crusade soon turned quixotic under her successor, George W. Bush, inaugurated in 1995. Bush cited his own recovery from alcoholism as proof that Texans shouldn’t have to pay to treat prisoners for addiction.[30] It wasn’t until 2005, when Republican Jerry Madden was appointed chair of the House Corrections Committee by Republican Speaker Tom Craddick, that justice reform began moving again in earnest.[31] Craddick’s charge to Madden belied an important shift in the state’s fiscal and criminal justice philosophies: “Don’t build new prisons — they cost too much.”[32]

As fiscal concerns became a primary focus, the 79th Legislature (2005) passed a handful of important reforms. They included permitting the use of prison IDs to acquire a driver’s license, the establishment of a Forensic Science Commission (responsible for investigating claims of shoddy forensic work at state crime labs), and most consequentially, an overhaul of the probation system, which provided $55 million in incentive-based funding to probation departments across the state.[33] Their objectives included reducing revocations and imposing graduated sanctions for technical probation violators. The funding also allowed probation officers to reduce their caseload by 30%.[34] These early probation reforms ultimately proved successful, reducing technical revocations by 16 percent, and saving approximately $120 million by keeping technical violators out of the prison system.[35] These savings, alongside another set of shocking investigative reports, would soon play a crucial role in the 2007 legislative session.

By this time, Texas’s progress on criminal justice had begun to attract the attention of reform advocates around the country. These included Charles Koch, one of a pair of brothers better known for their big business advocacy. Make no mistake, though — Texas criminal justice reform is a homegrown phenomenon. In 1989, San Antonio medical tech billionaire James B. Leininger founded the Texas Public Policy Foundation (TPPF),[36] a policy think tank whose stated mission is “to promote and defend liberty, personal responsibility, and free enterprise in Texas and the nation.”[37] Tied closely to the American Legislative Exchange Council (ALEC),[38] a conservative organization that pushes model legislation in state legislatures across the country, TPPF is a powerhouse in predominantly-Republican state politics. It also relies heavily on funding from owners of large corporations, including Koch Industries.[39] In the mid-2000s, TPPF began to focus on criminal justice reform, enlisting University of Texas Law School grad and Koch Institute fellow Marc Levin to develop the foundation’s “Center for Effective Justice.” The Center was later spun off into a pseudo-independent initiative called Right on Crime, which is now headed by Levin. The organization works closely with law enforcement agencies throughout the state to develop reforms that satisfy both legislators bent on reform and law enforcement agents skeptical of change. For example, the 2005 probation revocation reform measure was the product of close collaboration between the Center for Effective Justice and the Sheriff’s Association. Because Republicans dominate both houses of the Texas legislature, Levin’s and Right on Crime’s contributions have proven critical to the reform effort. But they aren’t alone. Left-leaning organizations like the Texas Criminal Justice Coalition (TCJC) also play an important role in shaping the state’s policies, alongside TPPF and Right on Crime.

***

As Texas was taking its first steps toward implementing criminal justice reform at the insistence of Senator Whitmire, Columbia Law School professor James Liebman was taking an interest in Texas. In 2005, he approached Chicago Tribune investigative journalists Maurice Possley and Steve Mills regarding an investigation he and his students from the Columbia Human Rights Law Review were conducting. The investigation centered on a man Liebman believed had been wrongfully convicted and executed.

That man was Carlos DeLuna. DeLuna was convicted and sentenced to death for the 1983 murder of a convenience store clerk named Wanda Lopez in the port town of Corpus Christi, Texas. He was executed in 1989.[40] In June 2006, mere months before the beginning of the Texas Legislature’s session, the Tribune journalists published a three-part series that raised serious questions about the integrity of DeLuna’s conviction.[41] The journalists would later win the Pulitzer Prize for their reporting.

Around the same time, Texas Observer reporter Nate Blakeslee received a tip about sexual abuse within the Texas Youth Commission. The TYC then oversaw the system of juvenile correctional facilities known in Texas as “state schools.”[42] Thanks to a whistleblower from within the TYC, the Texas Rangers, a law enforcement agency with statewide jurisdiction, had drawn up a detailed report on the abuse in 2005. But the report remained tucked away and practically unread in a Texas Capitol file cabinet until Blakeslee discovered it.[43] The report detailed shocking abuses: two of the school’s top officials leveraged their authority to evaluate juveniles’ progress and make recommendations on their release in order to coerce young men into performing sexual favors.[44] Neither of the two men had been arrested, or even internally reprimanded. Even worse, by the time the 80th Legislature convened in early 2007, one of the suspects still came into regular contact with children as principal of a charter school.[45] In February 2007, the Senate Finance Committee questioned the TYC director on the incidents and Democratic Senators Juan Hinojosa, Royce West, and John Whitmire, along with Republican Senator Steve Ogden agreed that criminal justice would figure prominently on agenda of the 80th Legislature.

Shocking stories of the consequences of a neglected criminal justice system alone weren’t going to change the minds of the majority — Republican legislators whose political identities were built in part on a reputation for toughness.[46] But, in 2007, when the Texas Legislative Budget Board projected that Texas would need to spend $2 billion to grow prison capacity by almost 20,000 beds by 2012,[47] Republican legislators faced a dilemma. In a state well-known for its low taxes and, by then, its fiscal discipline: would they would remain tough on crime or tough on government spending? Their decision would change the face of Texas’s criminal justice system. And in so doing, they would revolutionize the national debate over criminal justice policy.

In a way, Texas Republicans managed to have their cake and eat it too. As Governor Rick Perry, a staunch advocate of the death penalty, said in his February 2007 “State of the State” address, “When it comes to criminal justice, I believe we can take an approach to crime that is both tough and smart. . . . [T]here are thousands of non-violent offenders in the system whose future we cannot ignore. Let’s focus more resources on rehabilitating those offenders so we can ultimately spend less money locking them up again.”[48] Fifteen years after Sen. Whitmire began preaching the gospel of rehabilitation, his message had taken hold among some of his most ardent political opponents on terms they could understand (and more importantly, sell to their voters): Criminal justice reform is good because it saves Texans money.

Before the 80th Legislature convened in early 2007, legislators requested that the nonpartisan Council of State Governments’ Justice Center analyze Texas’s criminal justice problems.[49] The Justice Center identified three main drivers of Texas’s exploding prison population. First, probation revocations occurred far too frequently, and had actually increased by almost 20 percent between 1997 and 2006. Second, Bush’s cuts to rehabilitation programs had left many of those exiting the prison system untreated and more likely to recidivate. Third, parole boards had been much stricter than their guidelines mandated, leaving incarcerated many who could have been under community supervision instead.[50]

In light of this report, a bipartisan group of legislators led by Sen. John Whitmire and Rep. Jerry Madden proposed a raft of reforms that were impressive for their depth and breadth. They included: restoring funding for substance abuse programs, an overhaul of the Texas Youth Commission (in response to the Texas Observer revelations), creating a requirement that parole boards explain deviations from guidelines, funding the Forensic Science Commission (which was established in the previous session), doubling down on previous probation revocation reforms, increasing funding for diversionary programs, increasing funding for drug and alcohol programs and halfway houses, funding improvements to prison conditions, and increasing flexibility for law enforcement officers by incentivizing citations over arrests. Almost all of the reforms passed by the 80th Legislature were signed or were allowed to become law by Governor Perry.

Ana Yáñez-Correa of the Texas Criminal Justice Coalition (TCJC), a left-leaning criminal justice advocacy group, captured the gravity of these reforms in June 2007. She told her supporters, “It’s not an exaggeration to say we are witnessing history here in Texas.”[51] At the conclusion of the 2007 legislative session, Correa was honored alongside conservative reformer Marc Levin of Right on Crime for “working toward real solutions to the problems facing the Texas criminal justice system.”[52] Despite the changes, however, the 80th Legislature actually increased sentences for certain crimes, and did not move to address the problems exposed by the shocking Chicago Tribune wrongful conviction report. In an interview I conducted in late November, Senator Whitmire explained the discrepancy. He said that the nature of criminal justice reform in Texas requires reform-minded legislators to walk a fine line: “How do we handle the politics? Start out tough. People aren’t gonna let you go soft on crime. I’m a liberal, but not a bleeding heart liberal.”

But in 2009, the conservative-as-ever 81st Legislature continued to challenge bleeding hearts’ supposed monopoly on compassion. Among several other reforms like stronger re-entry assistance, restoration of good behavior time that previously been forfeited, and permitting the Texas Department of Criminal Justice (formerly known as the Texas Department of Corrections) to fund temporary post-release housing for prisoners eligible for parole or mandatory supervision, Texas took drastic measures on wrongful convictions.[53] In 2001, Democrat Rodney Ellis of Houston had sponsored a successful bill to authorize compensation for victims of wrongful convictions.[54] In 2009, the Legislature decided to radically increase the compensation to $80,000 per year with no cap. In addition, they added a monthly annuity based on a rate of $80,000 for every year the exoneree was in prison. And on top of that, they threw in free state health insurance and free tuition at state universities.[55] The new compensation scheme they develop remains by far the most generous in the country.[56] In 2009, Texas paid $1.3 million in wrongful conviction compensation. In 2010, the year the new scheme took effect, the state paid $21.8 million, distributing in one year two times the total of all previous years combined. In addition to the wrongful conviction compensation reform, in 2009 Senator Ellis, in partnership with the State Bar of Texas, the Court of Criminal Appeals (Texas’s court of last resort for criminal appeals), and public defense advocates, pushed through a bill to establish the Office of Capital Writs. Capital Writs is a public defender office specializing in post-conviction litigation for individuals who have been sentenced to death.[57] And in 2011, the state harvested the fruit of seeds planted in previous sessions, deciding first the first time to close a state prison, with no plans to replace it.[58]

***

Texas has a severe reputation today. But few would have considered the state lawful or orderly around the time of its revolution against Mexico and its eventual annexation by the United States. Whitfield Chalk[59] was a veteran of the ill-fated Mier Expedition (a mutinous and retributive raid on Mexican border towns). Later, he settled in Williamson County, just north of modern-day Austin.[60] There he disavowed his rebellious ways, married, and became the county’s first sheriff in 1848.[61] In his wake Williamson County acquired a reputation for law and order (particularly as compared to Travis County, its neighbor to the south) that it maintains to this day.[62] Prosecutors there have become well-known for their no-holds-barred tactics.[63] Those tactics were imposed with full force on a pharmacy manager named Michael Morton. Morton was convicted of murdering his wife in 1986.[64] With the help of the New York-based Innocence Project’s Barry Scheck, he was ultimately exonerated in late 2011 when DNA evidence exonerated him.[65] Williamson County prosecutors had resisted attempts to retest the crime scene evidence for six years.[66] Soon, the reasons why became clear. Prosecutors had suppressed numerous pieces of evidence that could have exculpated Morton. Texas Monthly’s acclaimed two-report on the Morton story was published in November and December of 2012.[67]

As the 83rd Legislature convened in January of 2013, Sen. Rodney Ellis, a Democrat, and a long-time proponent of reforms for criminal justice issues that disproportionately affect minorities, saw and seized his chance to make major progress.[68] A member of Sen. Ellis’s staff cited the fact that the exoneree was white as a decisive factor in building consensus in the 83rd Legislature on this issue.[69] While the Supreme Court’s well-known decision in Brady v. Maryland requires prosecutors to turn over to the defendant’s counsel evidence that is “material” to guilt or punishment,[70] Ellis proposed a law that goes even further. SB1611 (also known as the “Michael Morton Act”) was co-sponsored by Republican Senator Robert Duncan and requires prosecutors to turn over all evidence, even if they don’t believe it to be “material,” a process known as “open file” discovery.[71] The Michael Morton Act was accompanied by host of other reforms in 2013, including indemnity for employers for negligent hiring of ex-offenders, prohibitions on the revocation of occupation licenses to ex-offenders, and the expansion of diversion programs for low-level, mentally-ill defendants. [72]

After Lisa Falkenberg’s Pulitzer Prize-winning series in the Houston Chronicle on the travails of Alfred Dwayne Brown, who was sentenced to death after an expert called by the state inappropriately adjusted his IQ scores after the test revealed Brown was mentally retarded (and therefore ineligible for the death penalty),[73] 2015 saw even more reforms. Led again by Senator Whitmire and Senator Ellis (who will retire this term), the 84th Legislature extended orders of nondisclosure to low-level misdemeanants, adjusted property theft thresholds for inflation, codified the “rule of lenity” as articulated in the 2015 U.S. Supreme Court case Yates v. United States, and clarified a 2013 reform that expands DNA testing of all evidence in death penalties that has a “reasonable likelihood” of containing biological material, even if such material is not visible to the naked eye.[74]

III. “Killing ’Em with the Facts”

When I spoke with Sen. Whitmire, he told me that data was his strongest ally: “I kill ’em with the facts.” Today, the data clearly show that Texas has made immense strides in building not only a cost-effective criminal justice system, but also one that is more just, and is more likely to leave Texans more safe and more free. Texas has managed to reduce its incarceration rate, while all of its neighbors saw theirs increase.[75] While it set aside approximately $275 million dollars for the construction of new prisons, its declining incarceration rate and prison population (despite significant domestic and foreign immigration to Texas) meant it didn’t need to use those funds.[76] In the meantime, revocation rates for parolees and probationers have continued to fall[77] as Texas’s spending on criminal justice has remained flat.[78]

Today, as criminal justice reform becomes a cause célèbre in Washington and elsewhere, other states have begun to model their reforms after those implemented in Texas.[79] While some question whether the Texas model can translate to other jurisdictions (especially to the federal system),[80] and others question the prospect of reforms under the next Presidential administration,[81] reformers would do well to keep in mind Sen. Whitmire’s response when I asked for the secret to his success in Texas: “I’ve outlasted my critics. It’s not easy. I don’t think most people know how hard it is. I spend a lot of time every day working on this. I have credibility. I don’t make it partisan. I kill ’em with the facts.”

[1] David Dewhurst, Lieutenant Governor of Texas, Inaugural Address (January 16, 2007).

[2] Reid Wilson, Tough Texas gets results by going softer on crime, Wash. Post, Nov. 27, 2014, https://www.washingtonpost.com/blogs/govbeat/wp/2014/11/27/tough-texas-gets-results-by-going-softer-on-crime/.

[3] Medellín v. Texas, 552 U.S. 491 (2008); Leal Garcia v. Texas, №11–5001 (2011).

[4] Buck v. Davis, №15–8049, 2017 WL 685534 (U.S. Feb. 22, 2017); Moore v. Texas, 136 S.Ct. 2407 (2016).

[5] Greg Glod, Texas Adult Corrections: A Model for the Rest of the Nation, Texas Public Policy Foundation (October 2015), http://www.texaspolicy.com/library/doclib/PP-Texas-Adult-Corrections-A-Model-for-the-Rest-of-the-Nation.pdf.

[6] Id.

[7] Id.

[8] Texas Department of Criminal Justice, Annual Reviews, http://tdcj.state.tx.us/publications/index.html.

[9] Robert Perkinson, Texas Tough: The Rise of America’s Prison Empire (2010).

[10] Id.

[11] Id.

[12] Gary Cartwright, Free to Kill, Texas Monthly, August 1992, http://www.texasmonthly.com/articles/free-to-kill-2/.

[13] Robert Draper, The Great Prison Mess, Texas Monthly, May 1996, http://www.texasmonthly.com/articles/the-great-texas-prison-mess.

[14] Id.

[15] Olivia Nuzzi, Prison Reform is Bigger in Texas, The Daily Beast, April 12, 2014, http://www.thedailybeast.com/articles/2014/04/12/prison-reform-is-bigger-in-texas.html.

[16] Id.

[17] Michael Hall, Death Isn’t Fair, Texas Monthly, December 2002, http://www.texasmonthly.com/articles/death-isnt-fair/.

[18] Id.

[19] Id.

[20] Michael Hall, Separated at Death, Texas Monthly, December 2009, http://www.texasmonthly.com/articles/separated-at-death/.

[21] Id.

[22] The National Registry of Exonerations, Ernest Ray Willis, https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3755.

[23] Maureen Balleza, After 17 Years on Death Row, Texas Inmate Walks Free, N.Y. Times, October 8, 2004, http://query.nytimes.com/gst/fullpage.html?res=9802EFDD153BF93BA35753C1A9629C8B63.

[24] Michael Gracyzk, Death Row Inmate Freed After 17 Years, Associated Press, http://www.nbcnews.com/id/6643919/ns/msnbc-hardball_with_chris_matthews/t/death-row-inmate-freed-after-years.

[25] Jordan Smith, Innocent Man Off Death Row, Austin Chronicle, Oct. 15, 2004, http://www.austinchronicle.com/news/2004-10-15/innocent-man-off-death-row/.

[26] Innocence Project, Dallas County Cases Where DNA Has Proven Innocence, (Feb. 1, 2007), http://www.innocenceproject.org/dallas-county-cases-where-dna-has-proven-innocence/.

[27] Supra note 15.

[28] Id.

[29] Voice of Justice, Penal Code to be Revised by “Senate Bill 15” (February 1, 1995), http://www.jfa.net/VOJ/Feb95.html.

[30] Sam Howe Verhowek, Warehouse of Addiction: A Change in Governors Stalls Texas’ Model Drug Program, N.Y. Times, July 4, 1995, http://www.nytimes.com/1995/07/04/nyregion/warehouse-of-addiction-a-change-in-governors-stalls-model-drug-program-in-texas.html.

[31] Supra note 15.

[32] Id.

[33] Ana Yáñez-Correa, TCJC Newsletter (2005), http://www.texascjc.org/sites/default/files/uploads/TCJC%202005%20Newsletter%20%28Dec%202005%29.pdf.

[34] Supra note 5.

[35] Id.

[36] Inside Gov, Texas Public Policy Foundation, http://think-tanks.insidegov.com/l/322/Texas-Public-Policy-Foundation.

[37] Texas Public Policy Foundation, About the Texas Public Policy Foundation, http://www.texaspolicy.com/about/.

[38] Brooke Rollins, Texas Public Policy Foundation Leaders Stand with the American Legislative Exchange Council, (May 17, 2012), http://www.texaspolicy.com/press_release/detail/texas-public-policy-foundation-leaders-stand-with-the-american-legislative-exchange-council.

[39] Forrest Wilder, Revealed: The Corporations and Billionaires that Fund the Texas Public Policy Foundation, Texas Observer, Aug. 24, 2012, https://www.texasobserver.org/revealed-the-corporations-and-billionaires-that-fund-the-texas-public-policy-foundation/.

[40] James S. Liebman, Shawn Crowley, Andrew Markquart, Lauren Rosenberg, Lauren & Gallo White, Daniel Zharkovsky, Los Tocayos Carlos, 43 Colum. Hum. Rts. L. Rev. 711 (2012).

[41] Andrew Cohen, Yes, America, We Have Executed an Innocent Man, The Atlantic, May 14, 2012, http://www.theatlantic.com/national/archive/2012/05/yes-america-we-have-executed-an-innocent-man/257106/.

[42] Sam Stoker, How I Got That Story: Nate Blakeslee, Alternative News Media, November 4, 2008, http://aan.org/aan/how-i-got-that-story-nate-blakeslee/.

[43] Id.

[44] Nate Blakeslee, Hidden in Plain Sight, Texas Observer, February 23, 2007, https://www.texasobserver.org/hidden-in-plain-sight/.

[45] Id.

[46] Legislative Reference Library of Texas, Membership Statistics for the 80th Legislature of Texas, http://www.lrl.state.tx.us/legeLeaders/members/memberStatistics.cfm.

[47] Center for Effective Justice, Adult Corrections Reform: Lower Crime, Lower Costs (September 2011), http://rightoncrime.com/wp-content/uploads/2011/09/Texas-Model-Adult.pdf.

[48] Rick Perry, Governor of Texas, State of the State Address (February 6, 2007).

[49] Supra note 5.

[50] Id.

[51] Ana Yáñez-Correa, TCJC Newsletter (2007), http://www.texascjc.org/sites/default/files/uploads/TCJC%202007%20Newsletter%20%28June%202007%29.pdf.

[52] Grits for Breakfast Blog, House Congratulates Criminal Justice Reform Advocates (May 14, 2007), http://gritsforbreakfast.blogspot.com/2007/05/house-congratulates-criminal-justice.html.

[53] Supra note 6.

[54] Brandi Grissom, Evolving Law Results in Unequal Pay to the Exonerated, The Texas Tribune, Sept. 23, 2011, https://www.texastribune.org/2011/09/23/evolving-law-results-unequal-exoneree-pay/.

[55] American Statesman Staff, Tab for wrongful convictions in Texas: $65 million and counting, Austin-American Statesman, Feb. 10, 2013, http://www.statesman.com/news/tab-for-wrongful-convictions-texas-million-and-counting/2aJXwD2LP3CGC0lOqCqnRM/.

[56] State Statutes, Cooper & Elliott, http://www.wrongfulconvictionlawyers.com/state-statutes/.

[57] Lise Olsen, Texas gets office to manage death row appeals, Houston Chronicle, July 27, 2009, Available at: http://www.chron.com/news/houston-texas/article/Texas-gets-office-to-manage-death-row-appeals-1722871.php.

[58] Brandi Grissom, Day 19: Sugar Land’s Prison a Casualty of Budget Cuts, The Texas Tribune, Aug. 19, 2011, https://www.texastribune.org/2011/08/19/central-unit-closing-marks-sugar-lands-transformat/.

[59] My great-great-great uncle.

[60] Texas State Historical Association, Whitfield Chalk, https://tshaonline.org/handbook/online/articles/fch03.

[61] Williamson County Historical Commission, Sheriffs of Williamson County, http://www.williamson-county-historical-commission.org/Sheriffs/Sheriffs_of_Williamson_County_Texas.html.

[62] Pamela Colloff, The Innocent Man, Part I, Texas Monthly, November 2012, http://www.texasmonthly.com/politics/the-innocent-man-part-one/.

[63] Beth Wade and Melissa Mixon, Williamson County’s Tough-on-Crime Reputation Three Decades in the Making, Community Impact Newspaper, Dec. 3, 2009, http://www.tdcaa.com/node/5603.

[64] Supra note 63.

[65] Id.

[66] Brandi Grissom, A Tough Prosecutor Finds his Certitude Shaken by a Prisoner’s Exoneration, The Texas Tribune, November 18, 2011, https://www.texastribune.org/library/multimedia/john-bradley-texas-prosecutor-asserts-change-of-heart/.

[67] Paige Williams, CRMA finalists, Part 2: Reporting, Nieman Storyboard, March 15, 2013, http://niemanstoryboard.org/stories/crma-finalists-part-2-reporting/.

[68] According to a member of Sen. Ellis’s staff, who requested to remain anonymous in the interview I conducted in late November.

[69] Id.

[70] Brady v. Maryland, 373 U.S. 83 (1963).

[71] Michael Morton Act, 83d Leg., R.S., ch. 49, 2013 Tex. Gen. Laws 106 (codified as an amendment to Tex. Code Crim. Proc. Ann. art. 39.14.

[72] Supra note 5.

[73] Lisa Falkenberg, Questionable Murder Case Keeps on Crumbling, Houston Chronicle, Nov. 11, 2014, http://www.houstonchronicle.com/news/columnists/falkenberg/article/Questionable-murder-case-keeps-on-crumbling-5886610.php.

[74] Supra note 5.

[75] Brooke Rollins and Greg Glod, What if Texas Had Never Reformed Its Criminal Justice System?, Real Clear Policy, September 13, 2016, http://www.realclearpolicy.com/articles/2016/09/13/what_if_texas_had_never_reformed_its_criminal_justice_system.html.

[76] Id.

[77] Id.

[78] Supra note 8.

[79] Right on Crime, Reform in Action: State Initiatives, http://rightoncrime.com/reform-in-action/.

[80] David W. Murray and Brian Blake, Why Texas’ Criminal Justice Reforms Don’t Translate to the Federal Level, Hudson Institute, May 6, 2016, http://www.hudson.org/research/12476-why-texas-criminal-justice-reforms-don-t-translate-to-the-federal-level.

[81] Ed Kilgore, Sessions as Attorney General Means Criminal-Justice Reform is Dead, New York Magazine, November 18, 2016, http://nymag.com/daily/intelligencer/2016/11/sessions-as-ag-means-criminal-justice-reform-is-dead.html.