Kenneth McDuff. More than any other person, McDuff has come to represent everything that was wrong with the Texas criminal justice system. He convinced everyone—citizens, politicians, the news media—just how truly broken the Texas system was.

The facts of his case are worth repeating. If we are to avoid the mistakes of the past, we must remember the awful lesson McDuff inflicted on Texas.

Kenneth McDuff was a dangerous, cold-blooded killer. He was a dangerous, cold-blooded killer the August 1966 night that he murdered three Fort Worth teenagers. He was a dangerous, cold-blooded killer when the parole board voted to release him in October 1989. He was a dangerous, cold-blooded killer those days in 1991 and 1992 when he killed Melissa Northrup and Colleen Reed. . And he remained a dangerous, cold-blooded killer until his execution on November 17, 1998.

McDuff was born and raised in Texas. Although he had several incidents with school and law enforcement officials, he managed to stay out of prison until age 19. In 1965, he was convicted of a string of 12 burglaries and received a four-year prison sentence. After less than one year, he was paroled—given a second chance.

McDuff responded to this second chance by going on a vicious murder rampage in Tarrant County. On the night of August 6, 1966, McDuff and a buddy selected at random, then robbed and abducted, three teenagers. McDuff forced them into a car trunk. Later, as the boys begged him to spare their lives, he shot them in the head a total of five times. McDuff and his buddy repeatedly raped the girl. McDuff then killed her by choking her with a broomstick.

McDuff was tried, convicted, and sentenced to death. He spent six years on death row before the 1972 United States Supreme Court decision ruling that all current death penalty laws, including Texas', were unconstitutional. (A new constitutional death penalty law was put into effect in 1974.) McDuff and Texas' other 87 death row inmates had their sentences commuted to life. Under the parole law at that time, he became eligible for release in 1976. He was repeatedly denied parole. Out of desperation, he offered a $10,000 bribe to a parole official. In 1982, he was convicted of the bribery attempt, but the jury gave him only a two-year sentence.

Meanwhile, Texas politicians continued to pass tough anticrime laws but neglected to build the prison space needed to back up the laws. As prison crowding became a severe problem, a federal judge ruled that the crowding was unconstitutional and took control of the Texas prison system. State officials tried to buy time and space by increasing good-time credits, releasing more inmates on parole, and paroling tens of thousands of inmates before they even reached prison. At the system's worst, inmates served 22 days for each year of their sentences; parole approval rates skyrocketed to 80%.

Of those released early, many committed more crimes and reentered the system. This, in turn, pushed other inmates out early, who then committed more crimes. The process was repeated in a sickeningly futile cycle.

In October 1989, as the system melted down, it did the unthinkable and released Kenneth McDuff. His record showed 16 felony convictions, 12 burglaries, and 3 murders, as well as his 1982 bribery conviction.

McDuff didn't stay out of trouble for long. By July 1990, he was arrested for the misdemeanor offense of making a terroristic threat. Parole violation charges put McDuff safely back behind bars.

Then the unthinkable occurred again.

Falls County officials dropped their charges. Why? Their witnesses were reluctant to testify, saying they hoped that the parole board would, nonetheless, use McDuff's criminal conduct to revoke his parole and keep him in prison. The board, still paroling prisoners far too early, made an administrative decision. The board did not seek a revocation based on the terroristic threat and simply released McDuff. On December 6, 1990, at the end of the year when the parole rate peaked, McDuff was free again.

We don't know the exact details of the next 17 months. McDuff's crime spree included drug dealing, robberies, and possibly nine murders. For certain, we know that on December 30, 1991, he kidnapped Colleen Reed from an Austin car wash. He raped, brutalized, and finally murdered her. Then on March 1, 1992, McDuff kidnapped and killed Melissa Northrup, a 22-year-old Waco convenience store worker. That spring, McDuff became the object of a massive manhunt. Finally, after being featured on America's Most Wanted TV show, McDuff was discovered working as a trash collector in Kansas City, Missouri. On May 4, 1992, he was arrested.

McDuff was tried, convicted, and sentenced to death for the murders of Reed and Northrup. He spent six years on death row until his execution on November 17, 1998.

Why are McDuff's victim's dead? Under any rational system, no matter how overcrowded or understaffed, McDuff would have been recognized as a vicious killer who should never have been released. The system utterly failed in its primary function—to protect its citizens.

Although hundreds of other dangerous criminals released early also committed heinous crimes, the McDuff debacle galvanized public opinion like no other case. The Texas legislature passed sweeping reforms, and citizens overwhelmingly voted for a billion-dollar bond to finance more prison beds. The result was dramatic:

• The prison system expanded from 38,000 beds to 140,000 beds.
• Good time was significantly reformed.
• Minimum parole eligibility doubled for violent offenders.
• The pace of executions picked up, and Texas executed more killers than any other state.

Had all these reforms been in effect in 1966, Kenneth McDuff's case would have turned out differently. He probably would have been executed. If he'd somehow been able to avoid execution, his life sentence for capital murder would have required him to serve 40 calendar years rather than 10 before the parole board would have even considered him. When his time came, he would not have been considered by a three-member panel of the board, as in the typical case. The full 18-member parole board would have reviewed his case. He would have needed 12 votes. Before they could vote, the board would have had to have listened to any presentation the victims' loved ones wanted to make.

The bottom line: under the laws enacted in the wake of the McDuff case, he would now be either dead or still nine years away from an initial parole review on the 1966 Tarrant County murders. He would find this initial review heavily stacked against him. Far more importantly, Colleen Reed, Melissa Northrup, and perhaps seven other women would still be alive today.

***

For the past twenty-nine years, I have been involved with the criminal justice system. I have lived and worked in a prison unit. I did a two-year stint as a research assistant with Texas' highest criminal court, the Court of Criminal Appeals, and for the past twenty-five years I have served Williamson County as an assistant district attorney, district attorney, and in my current position of state district judge.

During that time I have talked to far too many relatives of murder victims, held the hands of far too many young victims of child abuse, investigated far too many tragedies brought on by alcohol and drug abuse. I have also heard far too many politicians who talk about getting tough on crime but who are not willing to pay for prison beds. I have seen far too much news coverage of the trivial and obvious that failed to explain the big picture. Frankly, if politicians had backed up their rhetoric with funding, and if the news media had been more aggressive in their coverage, the flood of early releases and the system meltdown that led to McDuff's release might not have occurred.

I wrote this book so that every Texan can understand our system and our laws. We need to have such an understanding to intelligently cast our ballots and influence our local and state government to provide effective law enforcement. Such an understanding is our best hope for avoiding future Kenneth McDuffs.

***

Before beginning a step-by-step explanation of the Texas legal system, I will start by briefly discussing four current trends that help to explain much of what is happening behind today's newspaper headlines:

• Reforms inspired by the breakdown in the system
• Declining crime rate
• Prevention/enforcement combinations that work
• Recognition of victims' rights

Reforms

Just as the McDuff case dramatically illustrates how broken the system was, so the reforms it spawned show how forcefully the public responded. Across the state, laws and policies became a lot tougher. The parole board immediately stopped paroling bad risks. The parole approval rate, which hovered near 80% in 1991, declined to 50% in 1992 and then to barely 20% by 1994. The current parole board seems committed to keeping it at that lower level. The post-McDuff years brought dozens of other changes—some small, some huge—that increased the amount of time inmates, particularly violent inmates, had to serve. These changes

• doubled to 30 calendar years the minimum parole eligibility for a violent offender doing life
• increased to 40 calendar years the minimum parole eligibility for a capital killer who is not executed
• expanded the definition of a violent crime to include all child molesters
• overhauled the good-time system to ensure that it is used only as a reward for truly good behavior
• vastly increased the punishments for drunk drivers who kill or seriously injure others
• abolished Texas' formerly very liberal prison furlough program where inmates could be released, unguarded, for up to a week for any "appropriate reason," including visits to relatives and friends

These very significant changes grew teeth: the largest prison construction program in the world. A system that had once held just 38,000 prisoners was expanded to 140,000 by 1997 and has since grown to hold 152,000. In addition, the system added thousands of juvenile beds and community corrections beds. Local jails were enlarged until the jail system, which houses misdemeanants and felons awaiting trial, now can hold more than 78,000 inmates.

The Texas prison system, the largest in the United States, is now the world's third largest—behind only China and Russia. Texas also has the toughest laws in the nation for violent criminals—as well as the prison beds to back up those laws. On any given night, Texas law enforcement officers can lock up 230,000 criminals.

As a result, the crime rate has gone down. It has gone down dramatically.

Declining Crime Rate

These reforms may have cost a lot of money, but we have been receiving the benefits. Folk wisdom assures us that taxes and crime are two things that will never go down. Well, Texas is now showing the nation the contrary. Crime can be brought down.

Texas began using its current system for tracking its reported crime rate in 1976. Such a rate—the number of crimes per 100,000 citizens—automatically controls for population increases. The crime rate in Texas increased steadily after 1976. But the number of prison beds didn't. The largest crime increases came in the mid- to late-1980s, when early release from prisons freed tens of thousands of inmates.

These unabated crime-rate increases finally turned around in 1992. The very spring that Kenneth McDuff captured headlines around the nation, parole rates declined and other reforms began. The Texas crime rate declined 9.7% in 1992, 8.8% in 1993, 8.8% in 1994, and another 3.2% in 1995. The total decline from 1991 to 1995, was a whopping 27.3%. These reductions correspond directly to reductions in the parole rate-from 80% in 1991 to barely 20% in 1995. Common sense tells us that the crime rate declined because more criminals were in prison.

But would it last? Could tougher punishments, fewer paroles, and more prison beds not only lower the crime rate, but keep it low? The answer to both questions was a resounding Yes! The most dramatic decline was in the murder rate, which fell 58% between 1991 and 2003. But all the index crimes showed huge drops: rape, down 32%; robbery, down 42%; aggravated assault, down 29%; burglary, down 45%; theft, down 25%, and car theft, down 53%. The overall crime rate declined an incredible 34% between 1991 and 2003.

Let's put it another way. Texas had 312,719 burglaries in 1991. In the next twelve years, the burglary rate declined an incredible 45%. Because it did, during those twelve years, 1,216,242 Texas families who otherwise would have been victims got up in the morning and went to work or school. When they returned home, everything was in its place. No one had pried open the door, ransacked the house, or taken the jewelry, deer rifle, and VCR. These Texans don't know who they are and will never be the subject of a TV newscast, but their lives are better because the system was fixed.

The legislature that met in the spring of 1993 considered the recommendation of a statewide group, the Punishment Standards Commission. Made up of members of the legislature and many judges, but no prosecutors, the commission wanted to respond to prison crowding by significantly lowering punishments. For example, they recommended lowering the maximum punishment for nearly all violent offenses from life to 20 years and allowing for automatic release after criminals had served 80% of their time. In effect, they wanted to lower punishments so that the maximum sentences would be the same as the then-early release sentences. Punishments for other offenses would be even lower. House burglary, which had carried a possible life sentence, was to carry a maximum of four years.

I was part of a group locked in a heated battle with supporters of the Punishment Standards Commission. My group favored building more prisons and increasing punishments. One spring day, I testified in front of the Senate committee, chaired by Senator John Whitmire, that was considering these reforms. To no one's surprise, I was urging that we build prison beds and increase punishments. I told the senators that the parole board could not indefinitely lower parole rates without tens of thousands of new prison beds.

Then I made a promise. If they adopted the new laws and built the beds, the crime rate in Texas would decline dramatically.

The room became very quiet. No one had ever made such a statement. I heard a few snickers and then some whispers that I should never have promised a lower crime rate.

I know about the dangers of promising too much. The Texas crime rate had gone up, with only minor pauses, for some 15 straight years. But I was absolutely convinced that crime had gone up because of early releases and that eliminating them would bring the crime rate down.

Dr. Tony Fabelo, head of the now defunct Texas Criminal Justice Policy Council, was among those in the audience that day who were skeptical that we could either achieve or maintain a significant crime-rate reduction. It is obvious that we have achieved and maintained such a reduction; the reduction has now lasted for more than a decade. While I have a tremendous respect for Dr. Fabelo and other skeptical professionals, all Texans can be glad that the skeptics were wrong.

Meanwhile, newspaper headlines will continue to report crime statistics in terms of one-year "trends." When crime next fluctuates upward, which it must inevitably do, the headline will shout, "Crime Soars." But unless the news media relate any increases to 1991 figures, they will be presenting a terribly misleading picture to Texas citizens. The next time you read a crime-rate story in the newspaper, judge for yourself whether the media puts the rate in a long-term context: do they relate it to 1991 figures, or do they simply relate it to last year's figures?

Prevention/ Enforcement Combinations That Work

In 1980, Candy Lightner was a California mother. When a drunk driver killed her daughter, Candy was told, "It's just one of those things." The killer would never serve a day in jail, they said.

Within two years, Candy Lightner had founded Mothers Against Drunk Driving (MADD), changed California's drunk driving laws, begun a process of legal reforms that would reach all 50 states, caused law enforcement to dramatically increase the number of drivingwhile-intoxicated (DWI) arrests, and begun the process of greatly reducing the number of DWI deaths each year.

MADD and the DWI reduction provide a wonderful example of how one person can spark a nationwide reform effort. A change in public perception combined with increased law enforcement dramatically improved a major crime problem. The MADD crusade generated an enormous amount of media attention: factual stories, made-for-TV movies, talk-show interviews, and extensive coverage in nearly every national magazine. A more aware public demanded tougher enforcement of tougher laws. More drunk drivers got arrested; those convicted served longer sentences. Slowly, public opinion shifted. Drunk driving was no longer socially acceptable. Millions of social drinkers altered their drinking habits; ultimately, "designated driver" became a common term.

The net effect? A significant decrease in the terrible slaughter on our highways--a trend that shows signs of continued improvement. Even by conservative estimates, at least 140,000 American lives have been saved in the past twenty years by the nationwide change in attitudes about drunk driving.

If we can effect such a reduction in DWI, why not drugs? Drug use rose in the 1970s and remained at high levels during much of the 1980s; in some age groups, more than 50% were using drugs. Popular movies showed drug use as a part of life. In some social circles, it became acceptable and even glamorous.

Then, as dramatically as with DWI, social attitudes changed. In 1987, All-American basketball player Len Bias died from cocaine use. The media noticed. Then-President Reagan and Vice President Bush used the bully pulpit of the White House to lead attacks, creating a cabinet-level drug czar position filled by William Bennett. Drug arrests rose to more than 1 million per year. Prison sentences, rather than probation, began to more frequently follow convictions. The press became more aggressive in its coverage of drug abuse and the entertainment media stopped glamorizing drugs.

As with DWI, drugs were no longer socially acceptable. The possibility of arrest and conviction increased, and drug usage decreased sharply. In fact, the rate of 37% of young adults using drugs in 1979 declined to 13% in 1992. This decline was caused by an effective combination of prevention and enforcement.

If you are skeptical about such dramatic results, let me propose two other examples. In the 1960s, it became well known that seat belts saved lives and that smoking cost lives. In both cases, massive public education programs coupled with intense media attention changed public opinion. The resulting change in behavior was equally massive.

I, like many other parents, didn't need statistics in order to be aware of these changes. My boys, as preschoolers, were exposed to normal amounts of TV and other media. Like many other parents, if I ever failed to put on my seat belt, I was met with an immediate chorus: "Dad, put on your seat belt!" As for smoking, I once had to intervene as one of my boys, at age 4, launched an explanation of the evils of smoking to some hapless stranger who was lighting up a cigarette in the smoking section of McDonald's.

Seat belts went from being seen as a huge inconvenience to something two thirds of Americans habitually use. Same story with smoking. Between the 1960s and the 1990s, those rates declined from more than 50% of our adult population to barely 25%.

What about some of our other problems? Family violence, the shameful physical and mental abuse which occurs within families, continues to be a social problem of awful proportions. One thing that has changed about this problem, though, is public awareness. And public awareness, as the cases of DWI and drugs have shown, is a powerful catalyst for change.

Indeed, the same cycle that occurred with DWI and drug abuse is now happening with spousal abuse and the other aspects of family violence. Media attention has been high for several years. Entertainment in the form of both Hollywood and TV movies has dramatized its horrors. Talk shows and national magazines continue to devote a lot of air time and column inches to it. Tougher laws have been passed, and arrests and convictions have both increased.

Family violence may prove to be more difficult to combat than either DWI or drug abuse. Closed doors, marriage, and a myriad of emotions make monitoring results much more difficult. Yet the efforts to combat such domestic abuse have undoubtedly moderated the problem. In the years to come, we will see whether dramatic changes can be demonstrated.

An offshoot of the trend toward successful combinations of prevention and enforcement is the current emphasis on community policing. The basic concept is sound: by making a uniformed police officer a visible, known person in a community, the community will become stronger, and ultimately crime will be reduced. Although I don't believe, as some do, that community policing is a panacea for all of our social problems, I do believe that the basic idea is sound; it can cause public attitudes to change. A prevention/enforcement combination succeeds when its targeted criminal conduct is rendered socially unacceptable. In the cases of drug use and DWI, for example, the combined weight of the influences of key leaders, media, and tougher law enforcement practices succeeded in significantly changing public attitudes toward alcohol and drug use. It was no longer cool. Thus, to the degree that community policing results in changed attitudes, it will succeed. The community policing approach may be particularly effective in high-crime neighborhoods, as breaking the law or allowing teenagers to run wild becomes socially unacceptable. At the same time, reporting crimes and becoming involved are likely to become more socially acceptable.

For several more years, the media will assault domestic violence and feature community policing. It is hoped that the earlier successes against DWI and drugs can be repeated in the areas of family violence and neighborhood crime.

Victims' Rights

In 1995, I wrote and published Texas Crime Victims Handbook. The book could not have been written twenty years earlier because victims simply had no rights.

Karen Kalergis, the former director of the Texas Crime Victim Clearinghouse, summed it up: "Used to be victims of crime had the right to be present at the scene of the crime—and that was that." The late Nell Myers, whose daughter was the victim of a brutal murder, was one of the pioneers in the victims' rights movement in Texas. She can remember when public officials and legislators were not particularly interested in those rights. Nell formed a group called People Against Violent Crime. Nell Myers soon had the attention of all elected officials. Her work led her to, among other places, the Rose Garden of the White House, where she was honored for her work on behalf of victims.

Texas has led the United States in helping victims. Some of our notable achievements include

• the Crime Victim Bill of Rights
• the Victim Impact Statement to give victims a voice in sentencing and parole decisions
• the Crime Victims' Compensation System, which has paid over $500 million in uninsured losses to victims of violent crimes
• legislation requiring criminals to pay back their victims
• a system of victim liaisons in every law enforcement and prosecutor's office
• the Crime Victim Clearinghouse, established to, among other things, provide quality training for crime victim advocates
• a network of rape crisis centers and battered women's shelters

We have a host of other programs and legal rights for victims. The victims' rights movement is thriving in Texas and will continue to influence legislation and command new media attention in the coming years.

These four trends help to place current news stories in perspective. It is only with this perspective that we can understand what we read in our daily newspapers.

***

While these trends are all positive, there is one dark cloud on the horizon. There is growing pressure, from members of the Texas Legislature and at least one large newspaper, for parole officials to increase parole releases and decrease the number of parole revocations. Also, as the legislature meets in the first half of 2005, there are serious proposals that would allow some lower level offenders to serve shorter prison sentences.

It is impossible to know if this "dark cloud" will develop into a full-blown thunderstorm that will be the next trend in Texas criminal justice. Certainly, if the legislature and state officials either are unwilling to pay the cost for maintaining our current level of incarceration or succumb to the illogical argument that rates of incarceration and crime are not related, then our crime rate will increase. "Increased crime rate" is simply an antiseptic way of saying more Texans will be raped, murdered, robbed, and assaulted and more Texas children will be the victims of abuse.

It is precisely to guard against this possibility that I originally wrote this book in 1997. We all have a stake in an effective criminal justice system. We must understand how broken the system was—and we must resolve not to set a Kenneth McDuff free again.

One way to prevent that horror is to learn about the system and become informed about the issues. This book is my part in that effort. Let's begin our look at the system with its law enforcement officers—people like Jim Boutwell.