Left and right join to bash Byrne grants in D.C.

I got back this afternoon from Washington, D.C. where I participated yesterday in a panel discussion aimed at Congressional staffers and the media titled, "The Byrne Justice Assistance Program: Reform or Eliminate?" It was hosted by the Congressonal Caucus on Public Safety, Sentencing and Incarceration Reform. Regular readers will recall that the "Byrne grant" program finances multijurisdictional drug task forces like the ones in Tulia, Hearne and Palestine.

In addition to my appearance on behalf of ACLU of Texas, panelists included Nkechi Taifa of the Open Society Policy Center, David Muhlhausen of the Heritage Foundation, and Paul Gessing of the National Taxpayers Union. Bill Piper of the Drug Policy Alliance moderated, and his group issued this press release about the event and Pres. Bush's proposed cuts.

Most interesting to me were comments by the two conservative speakers. Muhlhausen said that 9/11 changed the nation's law enforcement priorities, and the Heritage Foundation supports axing the Byrne program to focus more on homeland security needs. These grants pay for everyday law enforcement activities like officers salaries, he said, while homeland security, which is more properly a federal activity, still wasn't properly funded. He quoted a Clinton administration official saying Byrne money should only be used to finance extraordinary items that only the federal government could provide, not everyday stuff.

Gessing's group, the National Taxpayers Union, is for scaling back federal spending on a grand scale, so his support for the Bush budget cuts surprised few. But I thought it was telling that both his and Muhlhausen's comments played heavily on themes of federalism -- explicitly so, during the question and answer session. Gessing cited James Madison from Federalist Paper #45 to argue that street-level law enforcement was explicitly intended to be a state and local, never a federal function. Gessing saw no viable constitutional role for the federal government in drug enforcement, he said. When pressed by a questioner what he would support spending the grant on, he said it would have to relate to homeland security or border control for his group to support it.

The National Taxpayers Union, the American Conservative Union, Americans for Tax Reform, and Citizens Against Government Waste, it turns out, have signed onto a joint letter urging the House Appropriations Committee to eliminate the Byrne program. They said there was "no evidence" that Byrne or other federal law enforcement grant programs targeted for cuts "have been effective in reducing crime."

Opportunities for criminal justice reformers lay latent within those comments if we ever can figure out how to fashion approaches that tap into those small-government philosophies. Right now the Justice Department behaves like a backup District Attorney, or more accurately, like an Uber-DA who swoops in and gobbles up headline grabbing cases, leaving the locals with whatever they don't want. The drug bust reported last week in East Texas is a great example. These ardent Bush supporters clearly think US Attorneys have no business playing that role.

What might a federalist vision of drug reform look like? It's worth pointing out, as my friend Jeff Frazier has many times, that federalist philosophies inspired the constitutional amendment ending Prohibition in the '30s. The 18th Amendment didn't legalize alcohol sales per se, it just kicked the decision downstairs to the states, which as we did in Texas, often let the locals decide. To this day many Texas counties, including my own home county of Smith, are officially "dry." Alcohol may be consumed in the home, but restaurants and drinking establisments must abide by the facade of selling "memberships" to so-called "private clubs," and there are no package stores anywhere in the county. The next county over, though, is "wet," and a row of liquor stores line the road just past the county line.

The seeds of a similar outcome could lay deep and dormant within those conservative critiques of the Byrne grant program, I think. Certainly if you don't believe the feds have any role in the drug war then, de facto, you support a massive rollback compared to the status quo. Obviously that's not those groups' primary agenda, but if others came forward with criminal justice proposals in line with their small-government philosophical approach, they clearly are already highly critical of what's going on now.

My own comments focused on drug task forces' structural flaws stemming from the disjuncture between federal funding, state management, and local staffing. The Justice Department doles out Byrne money with no control over how it's spent. Managers at the state level don't hire or fire staff or have authority to discipline them if they engage in misconduct. And those who do hire and fire aren't in control of their employees' day-to-day activities. Every task force scandal of which I'm aware may be attributed to those lapses in accountability.

I also described Texas' legislative efforts in response to the Tulia scandal, including passage of Texas' law requiring the state to provide corroborating evidence supporting testimony from confidential informants in undercover drug stings. It turns out, Houston Congresswoman Sheila Jackson Lee is preparing to file legislation that would require states to enact corroboration laws in order to receive federal law enforcement grants. In order to receive grant money, according to a draft of the legislation made available at the event, states must ensure:

(1) a person is not convicted of a drug offense unless the fact that a drug offense was committed and the fact that the person committed that offense, are each supported by evidence other than the eyewitness testimony of law enforcement officers or individuals acting on behalf of law enforcement officers; and

(2) a law enforcement officer does not participate in a drug task force unless the honesty and integrity of that officer is evaluated and found to be at an appropriately high level.

That's a terrific bill. Since it would require corroboration from police officers, it's even stronger than what passed in Texas. Jackson-Lee's aide said she did not support ending the Byrne grant program, and expressed concerns that if this pot of money vanished, the only federal money available for things like drug courts, incarceration alternatives or other proven crime reduction approaches would be through funds earmarked for faith-based initiatives. Instead, she hopes this bill can be added as a restriction on the funding to make drug enforcement more accountable.

It turned out, unbeknownst to me, ACLU's national lobbyists along with a number of other liberal groups had signed onto some statement declaring that, while drug task forces should no longer be funded, ACLU does not support elimination of the Byrne grant program. That was news to me. Here in Texas, ACLU has been vocally supportive of President Bush's propsed cuts to the Byrne grant program, even running newspaper ads in East Texas to support its abolition. By contrast, the sign on letter ACLU endorsed urged Congress not to "throw the baby out with the bathwater." Whoops!

A questioner pointed out that my fundamental structural critiques of the Byrne grant program couldn't be reconciled with arguments for keeping it. I felt a little put on the spot, since our state and national group had taken differing positions without consulting one another, which obviously is a bit sloppy. I stuck to our position, though, hedging slightly by noting that in Texas, 90% of Byrne grant money goes to drug task forces, so for us it is a distinction without a difference. I was sympathetic to the idea that some states might not misspend Byrne money as badly as Texas, but, at the end of the day, "that's an awfully ugly baby," I declared, drawing guffaws from the audience. "It's not going to bother me any if you toss it out."