[music] I'm Alexander Heffner, your host on The Open Mind.

I'm delighted to welcome our guest today, Burke Butler.

She is executive director of the Texas Defender Service.

Welcome, Burke.

Thank you, happy to be here.

Burke, tell us about the origin of the Texas Defender Service.

Why was it started?

And what is the work you're undertaking on a daily basis?

Absolutely.

Texas Defender Service was founded in 1995.

At our inception, we were really an organization focused on advocating for people who were facing the death penalty in the state of Texas, and at the time, was the only group of lawyers doing that work here in the death penalty capital of the United States.

And since that time, we've won five cases before the Supreme Court and since 2018, saved 44 lives from the death penalty.

But in the course of doing that work, we became really interested in focusing on back end release of people who have served long sentences.

So not people who were sentenced to the death penalty, but people who are serving long sentences in our prison system and who deserve to go home.

And we've, included within our work utilizing the storytelling work that we've done for people who are on Texas death row to help people who are seeking parole in the prison system.

You say, the death penalty or capital punishment capital of the United States, and the data bears that out?

Yes, it absolutely does.

Texas has executed more people than all the other states combined, and continues to be an incredibly voracious user of capital punishment.

But it isn't just to the death penalty.

In the state of Texas, we have one of the highest incarceration rates in the world.

Our rate of incarceration is, at least 25% higher than the national average in the United States.

We are a state that sentences people to harsh and long sentences in ways that don't improve public safety, and that ultimately cause a lot of harm to our families and communities.

In your mind, what is the historical origin of that and why it's been historically practiced more frequently in Texas?

That is capital punishment, and incarceration than elsewhere in the US.

I think it has a lot to do with the state's history.

We are a state that was, long known for its history of lynchings.

We know that states that had lynchings were likely to later become states that utilized the death penalty.

We know that the death penalty has a really disproportionate impact on people of color.

In Harris County, for example, 20 of the last 21 people sentenced to death were people of color.

So we still see that in our system today.

And that stands true of all other aspects of the prison system as well, and our state.

A third of people incarcerated in Texas prisons are, African-American versus only a little over 10% of the overall population of the state of Texas.

Now, when you say your focus on reducing the severity of punishments and removing people from death row, how are you analyzing what cases you take on?

And has that informed the way you want to approach this legislatively?

So, folks are no longer on death row in the state, period.

Mm hmm.

Absolutely, the short answer is we serve as many people as we possibly can for our advocacy for people who are facing the death penalty.

We advocate for people who have mental illness, who have intellectual disability, who are actually innocent.

But we also advocate for people who aren't facing the death penalty but are seeking parole.

So these are people who are in prison for decades, for all kinds of offenses, from felonies to, crimes related to, substance abuse and for those cases, we really advocate for people who we think deserve and are ready for a second chance.

People who are parents who need to go home and care for their children.

80% of incarcerated people are parents, people who have families who can support them, people who are ready to contribute.

So take us through your process right now.

Yeah.

It obviously is a slow one, because that's the nature of these things.

But, how does it work in Texas?

And what is the climate in the American Southwest in general?

If you want to reflect on it in looking at folks who are on death row or facing severe penalties and attempting to cultivate a path for them on parole and to exit the system.

Just take us through what that process looks like for an individual case that you take on.

Thats a wonderful question.

The answer is that it is a tough system, but we know that advocacy and representation makes a profound difference.

In Texas, people have the ability to seek parole when they have served a certain portion of their sentence.

How much of that sentencing they need to serve depends on what the original sentence was, sometimes it's half their sentence, sometimes it's a little more than that.

And what happens is they go before the parole board.

And in most cases, this process involves very little participation from the person who's seeking a second chance.

They have a brief interview in prison from an institutional parole officer.

Honestly, that lasts a couple of minutes and they get a score based on their potential, for rehabilitation and returning to their communities.

And the decision is made in a split second.

The parole board processes 70,000 applications a year.

And so you can imagine how little attention those receive.

And only 35% are granted.

But if someone has a lawyer in the process, their chance of getting granted parole doubles.

And more often than not, they can actually get a hearing before a parole officer, in which the lawyer can advocate for their case and even present witnesses on their behalf.

And then where does it go from there?

Let's say someone who is successful and meets the criteria.

What are the next steps?

And then also, in the case of someone who doesn't meet the criteria initially in that numeric system you describe, where does a next second chance opportunity potentially come for them?

So those two paths.

If someone is denied parole in Texas, they get a parole off set, and sometimes that's a year later.

So it means their case will be considered in another year.

Sometimes it's 5 or 10 years, which is a really long time for someone who's incarcerated and who's ready to go home.

If they're granted parole, only a tiny percentage of people are actually released on parole right away.

Only around 10 to 15%, the remainder are required to do additional rehabilitative programs in Texas prisons that can last up to an additional year, which is always concerning because the longer someone's incarcerated, the greater risks to their health, the longer they're away from their families.

And we understand the obstacles for those who are on parole, namely, locating work that has to be within a radius of your parole officer.

And the, perimeter that is really obstructing your activity, your economic activity, your family activity.

What are the stipulations for someone on parole, to successfully graduate from that program and then be entirely free of responsibility to the state?

They're incredibly onerous.

You know, first of all, for all the reasons you mentioned, it is really difficult to reenter society after a period of incarceration.

And people have very few supports.

It's incredibly difficult to find housing in the state of Texas.

A lot of places won't rent to somebody who has just been released from prison.

People have ankle monitors so they're not able to go and get work.

A lot of workplaces won't accept their applications.

So just from a starting place, it's a really difficult time for a lot of people, especially those who don't have families that they can go home to.

And the requirements from the parole officer are very onerous for people.

People need to continue to, pay fees somewhere around $20 a month.

That's a lot of money for someone who has just been, released from prison.

And they need to meet with their parole officer, who may or may not have additional requirements for them.

But even just getting to one meeting a week with your parole officer for the next five years of your life, is a huge burden for people, especially people with very few resources.

So I want to go back to the system that you described, the number based system that is assessing eligibility in the first place.

In your mind, is it objective?

And if it is more subjective, is it fair?

The way that folks are assessing it in your words, in a split second?

It's not fair.

And the reason it's not fair is that that system relies way too heavily on what we call static factors.

So those are things people can't change.

Those might be your crime of conviction or how old you were when you were incarcerated.

But we know not only is it not fair, but it's not accurate because people's chances of being successful on parole have much more to do with the dynamic factors.

Like did they participate in programing?

Have they shown themselves eager to go home?

Do they have family support systems, things like that.

That that number doesn't encompass.

So when you look at opportunities for reform in 2025, and I know you're involved on a case by case basis in the system that you describe, what are the realistic pathways for legislative or policy change here?

I hear you mentioning a system, a number based system that is based on these static factors that doesn't consider the overall picture.

You say it's somewhat dependent upon, sentences that are being determined in the first place.

That can't be changed, or availability of programing within the confines of a prison, that you also mentioned, you know, the ankle monitor and the reality that if someone is wearing that, that they are ineligible for many economic opportunities, to pay their fees and then they reenter the system and are, arrested if they don't comply with their PO terms.

So, you know, again, when you see opportunities for policymaking and reform, where do you think those lie most realistically and also most urgently in your mind?

I think there are three really pressing areas for reform in Texas.

One is instituting something called administrative parole.

So, that would mean that there's a set of people who, as soon as their parole eligibility date comes up, they are automatically able to go home.

And these are people who are assessed by the system as having low level offenses and, no likelihood of recidivating this group of people is actually denied right now at a very high rate.

Only 60% of them are allowed to go home.

And so 100% of that group of people should be allowed to go home.

The second piece is we really need more resources for reentry support for people in the state of Texas.

And I think everyone across the aisle agrees on that.

People need pathways, of support and housing when they come home.

The third factor is TDCJ really needs to expand its programing within the prison system itself.

There are simply not enough programs for people to enter.

And so sometimes people don't join rehabilitative programs that they would benefit from simply because they don't have access to them.

Recently, as part of our series on justice reform issues, we interviewed, the founder and co-director of the Full Citizens Coalition, based in Connecticut, who is a graduate of Wesleyan University Center for Prison Education Reform.

-Mm hmm.

-And he was honest with us in the sense that in his mind, the availability of that elite program, that is only offered in so many settings.

Mm hmm.

Was not, in his mind, tied to a reduction in recidivism.

And it was disheartening to hear him reject that totally outright.

Like this programing is important for what it does, Mm hmm.

but let's not think prescriptively about the fact that it's going to shrink the system, Mm hmm.

and compensate for the unfairness or, resolve, you know, kind of reparation for the unfairness of the system over the last several decades.

Mm hmm.

From what you're saying, it is not implausible that the availability of such programing could shrink the system.

That ought to be one of the motivating forces to demonstrate to people it's possible to shrink the system.

I think that the availability of such programs in Texas is important because people are granted parole if they enter and finish these programs, but it's a way of them demonstrating to the parole board.

I'm eager to go home, and I'm preparing for going home.

And there are some programs that are really helpful for people GED programs, programs where you can learn a trade while in prison.

But there are also programs that may help someone be released on parole.

But on a practical level, may or may not, actually reduce recidivism or help people in practice.

And that's something that people who, have been directly impacted by incarceration could really speak to firsthand from their experience of moving through these programs in reality.

Let me ask you this, Burke.

The First Step Act was considered a success in a majority of the justice movement.

The reform movement, even if it impacted primarily federal cases and not state cases.

In your mind, how did the First Step Act, interface with the Texas system?

And if there is a second or third act in this year of 2025 with the new administration, what do you think that should look like?

Well, I think that the First Step Act is really powerful in terms of showing that the system can be changed so that people can get a second chance and that people can succeed when they go home.

I think that, these kinds of laws impact real people's lives, and then their lives change people's hearts and minds.

And for future expansion of the law.

I think it would be fantastic if the criteria for who qualifies under it continues to be expanded.

In terms of how it interacts with the Texas system, I think most of all, it can be for us an aspiration and a model of the kind of legislation we'd like to see at the state level that would give people a genuine second chance.

Could you expound on that?

I know you're based in Houston, but you obviously are working in Austin too, and petitioning the respective government channels to get that accomplished.

What's realistic?

Well, we work statewide in the state of Texas.

And so, you know, we work on cases throughout the state and, you know, work at the legislative level as well.

And there has been a real push in the state of Texas for second chance legislation for people who were convicted as juveniles and have been incarcerated for a long period of time.

And honestly, that legislation has gone very far.

And, I think there's a real sense that it could eventually be passed in the state of Texas.

One year, it went all the way to the governor's desk and was vetoed, at the 11th hour, which was really tragic.

The governor said that was due to some flaws in the language of the law, and that it could be potentially passed in the future.

So I think you could really see through that process that conservatives, can really get behind laws that would give people a second chance because it's a narrative that we can all understand, and we understand why that benefits families in our state.

A significant theme of the 2024 presidential campaign was the demonization of immigrants.

And if you thought Willie Horton in 1988 was a big deal, the number of ads that literally one said, you may not wake up in the morning if you don't vote for this candidate.

Mm hmm.

The numbers of mug shots that were deployed in these advertisements clearly scare tactics and fear mongering, at its base, and most egregious.

But, you see firsthand how anti-immigrant and anti-undocumented illegal immigrant rhetoric, impacts the system in Texas.

Mm hmm.

How do you think it has impacted the system since you started doing this work?

Especially over the last few years, the xenophobia and also the specific anti-immigrant, rhetoric.

It absolutely impacts the system in the state of Texas.

And that's something that we see throughout our work.

We work with people of all kinds of backgrounds, including people who are not US nationals.

Many people who came from Latin America, Mexico in particular, but other countries as well.

And we see the way these narratives have impacted them as individuals.

But also how we see that it's impacted their cases.

Cases can be politicized, sentences can be harsh.

People's legal cases are unfolding in an environment of, like you said, a lot of xenophobia and fear and a lot of misinformation about public safety.

Is your sense that there's still some foundation of fact about what's transpired over the last few years in terms of, you know, the number of border crossings and apprehensions and, does that matter when it comes to a judge's, decision or the board, that is assessing the number they're going to give a particular parole applicant, you know, the type of rhetoric and also the specific facts on the ground about whether they're undocumented, illegal crossings or not, whether there's the feeling or fact of security on the border.

Yeah.

I'm not an immigration expert.

My understanding, though, is undocumented immigration has increased in the state of Texas.

I think where the misinformation has come in is, the use of that fact to suggest that it's increased crime or increased insecurity, that it's made our communities less safe.

And thats simply not true.

The problem is that when people have that perception, it can influence real people's lives, because it can impact how they're perceiving a case that's before them.

And of course, we know that racism is a part of our criminal justice system.

We've seen cases where, people have been profiled because they were black, or they've received juries that were all white when they were Latino, or cases where it looked like they were frankly targeted because they were undocumented.

All of these things can happen in our justice system, and it's why it's so concerning when there is that misinformation circulating.

Right, and some of it does relate to this particular outcomes of overdoses, deaths, the appearance of fentanyl, Sure.

Mm hmm.

and again, not something that has logical correlation to realities on the ground, but somehow the appearance that severity of crimes has been exacerbated that the sins that are being committed are more grave and that's a media narrative, but that's not borne out in the cases that might be borne out in the sliver of cases.

I'm asking you, I suppose, gang related cases.

But it is, in fact, a sliver of cases and not the preponderance that you represent, for example, and that are newly coming into the system.

Absolutely.

I would say that the public perception that there's an increase in crime is simply not borne out by the statistics as we've seen them, but it is a narrative that's been really dominant.

And I think that that narrative causes a lot of harms because it can cause people to have the knee jerk reaction that the way we should react to increased public safety in our communities is to increase incarceration.

And the problem with that is we know that, long sentences and incarceration don't improve public safety.

And in fact, probably make it worse, and that the right answers for our community really come from other sources then increasing the length of people's sentences.

And how have you looked at the climate in Texas, relative to some of your neighbors and other southwestern states that have also had issues with the anti-immigration rhetoric and the reality of gang violence, namely, New Mexico, Arizona.

It is definitely seeped into the dialog and deliberations in places like Colorado and Utah, too.

But have you had a sense of comparison when you're talking to the legislators in Austin about what's been going on in these other states, how they're handling back end justice problems?

And front end, for that matter, Mm hmm.

relative to how Texas is handling that.

Mm hmm.

I don't have as good a sense of how it's played out in other neighboring states, I would say about the state of Texas, though, that it's a really influential state nationally when it comes to criminal justice.

You know, theres the saying, as goes Texas goes the nation.

And I think that that's something we really need to look at in Texas.

And when Texas tries to double down and be tough on crime and pass really severe legislation, I think we need to be worried about it because it's a state that has been very influential in terms of how prisons are run and in terms of how we do criminal justice in this country overall.

Let me ask you to close.

We've talked about the back end, but the front end.

Mm hmm.

What types of reforms do you think are important to the Texas system on the front end?

Judicial procedure or prosecutorial conduct?

The way plea bargaining works or doesn't work?

Again, if you're doing a prescriptive analysis of what needs to be fixed this year and in future governorships and legislatures, or by votes of the people in state referenda, what are the most problematic features of the front end in Texas?

Its a wonderful question.

First, I would say that prosecutors have a lot of power in our system.

And so prosecutors really focusing on public safety rather than excessive punishment and excessive incarceration is really important.

And using their powers in a way that increases public safety rather than increasing sentence length unnecessarily, is vital to the health of our communities and our entire system.

I also think we really need to look at pretrial incarceration.

A lot of people are being incarcerated pretrial in Texas because they can't afford bail, and they're being incarcerated for really long periods of time.

They have not been determined to be guilty of any sentence of any crime.

And while they're incarcerated, their families are really suffering.

They're not able to work.

And so I think we have to look at that piece of the system as well.

We also have to think about policing.

So many factors, impact our criminal legal system.

And one of those is who's arrested in the first place, why they're arrested, and whether it's a situation that's really impacting public safety or whether it's for racial profiling or other concerns.

Burke Butler, executive director of the Texas Defender Service.

Thank you so much for your insight today.

And continue the good work you're doing.

Thank you so much for having me.

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