Is Texas Tough on Crime but Soft on Criminal Procedure?

46 Pages Posted: 10 Apr 2011

Date Written: April 7, 2011


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, discovery obligations on prosecutors, or jury trial guarantees, Texas affords protections vastly in excess of what is required by the United States Constitution. Even more shockingly, 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, as well as the fact that the Texas Code of Criminal Procedure is extremely favorable to criminal defendants. The article explains the seeming inconsistency between Texas being tough on crime but soft on criminal procedure.

Keywords: Texas, Punitive, Countermajoritarian, Confessions, Inevitable Discovery, Bail, Discovery, Jury Trial, Jury Senctencing, Sobriety Checkpoint

Suggested Citation

Gershowitz, Adam M., Is Texas Tough on Crime but Soft on Criminal Procedure? (April 7, 2011). American Criminal Law Review, Vol. 49, 2012, U of Houston Law Center No. 2011-A-3, Available at SSRN:

Adam M. Gershowitz (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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