Border fence created dystopic no-man's land

Photo via Prof. Kit Johnson, used w/ permission.

Reported the SA Express-News (3/12):

Because of the snaking course of the Rio Grande, which marks the international boundary with Mexico, the border fence was built on top of the levee, in some places a mile or more from the river, marooning thousands of acres of bucolic farmland, native habitat sanctuaries and private landowners on its southern flank.

Today, there are roughly 56 miles of border fence and wall in the Rio Grande Valley alone, none of which changed the underlying character of the land — what was farmland before remains farmland today.

Yet, critics argue, the fence not only disrupts communities and impedes residents’ ability to move freely the nearer they are to the fence, it has also created a “Constitution-free” region where Border Patrol enforcement faces less oversight.

“What they’ve essentially created is a no-go zone,” said Joseph Nevins, associate professor of geography and chairman of earth science and geography at Vassar College, who studies the U.S.-Mexico border and is familiar with the Rio Grande Valley. “The very act of being in a particular place invites suspicion.”

At least three times in recent years, witnesses reported that Border Patrol agents shot and killed people along the Texas-Mexico line without justification. One man in Matamoros was fatally shot from across the Rio Grande in Brownsville in July 2012.

Late last week, the Border Patrol directed its agents to limit their use of force in certain situations [details here] after a recent report by independent law enforcement experts criticized the Border Patrol for a policy that led to the killing of at least 19 people.

For its part, the agency says agents are authorized to search any vehicle between the fence and the river if they have “reasonable suspicion” that unauthorized immigrants are aboard.

This is exactly the sort of dystopic scenario that made me oppose a border fence in the first place. As Grits wrote in 2008, "From the moment Congress first proposed putting a wall along the Rio Grande on Texas' southern border to reduce illegal immigration, I thought it was not just a bad idea but an insane one. As far as I can tell, when it's finished the United States will be the first nation state in the history of the planet to wall off a major river and leave the river on the other side!"

Border patrol officials insisted “it’s not a no man’s land” because “We are out there [and] … so are aliens and smugglers.” But to me, that's the definition of a "no man's land" - a place where the lack of legitimate public life breeds lawlessness, both by emboldening criminals and removing constitutional restraints from authorities. And because most illegal immigration happens at the checkpoints, the wall has done little to achieve the goal of reducing it. "More immigrants illegally enter the United States through the Border Patrol’s Rio Grande Valley Sector than any other," reported the McAllen Monitor last fall.

So, what exactly was the point of building that monstrosity again?

Good criminal justice coverage from Texas Observer

There are a couple of interesting stories up at the Texas Observer on topics this blog has covered that merit Grits readers' attention. Check them out:

• Checkpoint Carlitos: Why did DPS set up checkpoints in the Valley?
• Study shows why Houston's Public Defender program is worth the cost

See related, recent Grits posts:

• 'Show me your papers comrade': DPS vehicle checkpoints further degrade Fourth Amendment
• DPS backs of S. Texas roadblocks after dubious justifications debunked
• On the dubious constitutionality of DPS roadblocks
• Harris Co. Public Defender achieves much better results than assigned counsel

MEA CULPA: BTW, after Grits' earlier write-up of the Council of State Governments Justice Center report on the Harris Co. Public Defender program, a couple of people have told me I was remiss not to credit Jessica Tyler as a report author in addition to Tony Fabelo and Carl Reynolds, as apparently she did the bulk of the work on the document. I've never met Ms. Tyler, but if and when I do, the first round is on me. Grits regrets the omission and appreciates her efforts producing the report.

On the dubious constitutionality of DPS roadblocks

The Austin Statesman has more on roadblocks conducted in the Rio Grande Valley last month by the Texas Department of Public Safety and the possibility that courts could find them unconstitutional ("Follow up: Could DPS checkpoints face legal challenge?" Oct. 29). Courts have ruled that roadblocks are acceptable to check for drivers licenses and to verify insurance but unconstitutional for general crime fighting purposes (see prior Grits coverage here and here). Here's a notable excerpt from the Statesman story:

The checkpoints were part of an initiative dubbed "Operation Strong Safety," aimed squarely at the question of border insecurity.

"Combating criminal activity in the RGV was the primary goal of Operation Strong Safety, as well as taking back the border from the ruthless thugs operating in that area," DPS Director Steven McCraw said in an Oct. 24 release. The operation also included round-the-clock patrols that were "sustained until the cartels were forced to curtail their drug and human smuggling operations in the targeted area."

Yet the checkpoints apparently were not meant to be part of that particular effort,  but rather were aimed at curbing "unsafe driving practices," according to the agency. Before the operation was launched, DPS said the checkpoints were conducted to improve roadway safety.

But an American-Statesman analysis this month found that the locations where DPS set up the roadblocks were far less dangerous than other parts of the state. Rates of fatal crashes in Hidalgo and Cameron counties lagged well behind other metro areas. Based on crashes per vehicle mile traveled, a statistic commonly used to calculate safety rates, the Rio Grande Valley trails far behind cities like Lubbock, Laredo, Houston and Midland, and has crash rates comparable to Central Texas and the Dallas area.

DPS also pointed to high numbers of uninsured and unlicensed drivers as a reason for concentrating the stops in the area. But according to the Texas Department of Insurance, Dallas, San Antonio and Houston all have significantly higher numbers of uninsured drivers than Hidalgo and Cameron counties.

Jeremy Schwartz's story reacts to a DPS press release that explicitly framed the roadblocks in terms of a broader effort in the Valley to crack down on drug cartels. To me, this is further evidence that DPS is using the checkpoints to combat general criminal activity, not only for driver-license and insurance checks. As Grits wrote when the story first came out.

These are pure "pretext stops." McCraw's first justification given for the checkpoints was a response to "various criminal activity"; the rest are excuses, not reasons. The 2011 Texas case he cites overturned a lower court opinion out of El Paso forbidding the tactic. They upheld the checkpoint even though drug-sniffing dogs were deployed to check every car.

So basically, Texas law enforcement may use license and insurance checks as a fig leaf to justify a tactic that, in my youth, was associated in the public discourse mainly with totalitarian Communist states. Growing up, I can well remember my attorney father associating this practice with Communist Russia ("Show me your papers, comrade," was a running household joke) and proudly contrasting it with the "freedoms" enjoyed in America where, he naively believed, such disgraceful abuses by government would never be allowed.

Even the Texas Court of Criminal Appeals majority in 2011 granted that "A checkpoint to verify drivers' licenses and vehicle registration is permissible, but a checkpoint whose primary purpose is to detect evidence of ordinary criminal wrongdoing is not." But how to distinguish "primary" from secondary purposes? Here, responding to "various criminal activities" was McCraw's first justification, with the license and insurance checks offered up afterward more as an excuse than a reason. But under the CCA holding, they get to do it until some federal court calls them on it.

DPS may have gotten away with this charade for now, mainly because the roadblocks weren't widely publicized until after they were all but completed. But if the agency escalates their use I would indeed expect court challenges. Indeed, I'd love to see someone caught up in the RGV roadblocks appeal their case on the grounds of the tactic's unconstitutionality. DPS has now explicitly said the roadblocks were part of a broader crime fighting strategy and I doubt their general counsel or public relations staff would be foolish enough to frame them that way in future cases. I'm amazed they've done so this time.

DPS backs off S. Texas roadblocks after lame justifications debunked

Following up on a story highlighted on Grits last week, Jeremy Schwartz has a piece in the Austin Statesman today on the Texas Department of Public Safety's decision to install roadblocks in South Texas, a tactic Grits labeled "pure pretext stops." Titled, "Border area checkpoints raise question of intent," Schwartz's article says, "The tactic came as a surprise to many. State troopers hadn’t conducted such checkpoints since at least 1994, when a Texas court effectively prohibited most law enforcement roadblocks in the state."

Jeremy's report cast further doubt on the stated reasons for the tactics, debunking the notion (see the chart at right) that high numbers of vehicle crashes justified them:

In a release announcing the operation, DPS officials said the unusual measure was necessary in the Rio Grande Valley, in particular, because of “unsafe driving behaviors” and the “number of vehicle crashes” in the region. The agency set up numerous roadblocks in late September and early October as part of a wider law enforcement surge in the Rio Grande Valley.

But an American-Statesman analysis of Texas Department of Transportation data shows that the counties singled out by DPS — including Hidalgo and Cameron — have low crash rates compared with several other population centers in the state. Based on crashes per vehicle mile traveled, a statistic commonly used to calculate safety rates, the Rio Grande Valley trails far behind cities like Lubbock, Laredo, Houston and Midland, and has crash rates comparable to Central Texas and the Dallas area.

DPS has also tried to claim the roadblocks were necessary because of high rates of uninsured drivers in the area, but "according to the Texas Department of Insurance, Dallas, San Antonio and Houston all have significantly higher numbers of uninsured drivers than Hidalgo and Cameron counties," the Statesman reported.

Caught in this web of dubious excuses, "On Saturday, the San Antonio Express-News reported that DPS has stopped using the checkpoints and discontinued a broader enforcement push in the Valley." That's good news. It was a foolhardy and politically tone deaf move to ever launch them in the first place.

'Show me your papers, comrade': DPS vehicle checkpoints further degrade Fourth Amendment

The Texas Department of Public Safety is now conducting roadblocks in the Rio Grande Valley in  which they're checking for drivers license and insurance, looking for evidence of DWI, and running warrant checks on drivers, DPS Col. Steve McCraw informed us in a column in the McAllen Monitor (Sept. 30):

This short-term effort was conceived as a response to various criminal activities and unsafe driving behaviors identified in South Texas. For example, in 2010, 2011 and 2012, the Rio Grande Valley’s Cameron, Hidalgo and Willacy counties led the state in the number of citations DPS issued to drivers for “no driver license.” The same area is second only to the Houston area for “no insurance” citations issued by DPS during the same time period. In fact, 15 percent of all DPS-issued “no driver license” citations in the state occurred in the same three counties in the Rio Grande Valley in 2012.

Some uninformed individuals have claimed that these checkpoints are illegal — which is false. A traffic regulatory checkpoint is an authorized law enforcement strategy that has been upheld by the U.S. Supreme Court (City of Indianapolis vs. Edmond, 531 U.S. 32, 2000) and by the Texas Court of Criminal Appeals (Lujan vs. State, 331 S. W. 3d 768, 2011). DPS conducts traffic regulatory checkpoints under its general authority to enforce the laws protecting public safety.

I want to reassure the public that these traffic regulatory checkpoints are used only for the purpose of determining compliance with specific regulatory traffic statutes, including failure to display a driver license, failure to maintain financial responsibility, as well as vehicle safety and registration requirements. As with any other traffic stop, if a violation is found, a citation or warning is issued, and warrant checks are conducted. Troopers also have the authority to address obvious criminal violations; such as, driving while intoxicated.

Whether or not these checkpoints result in immigration detentions, let's not kid ourselves. These are pure "pretext stops." McCraw's first justification given for the checkpoints was a response to "various criminal activity"; the rest are excuses, not reasons. The 2011 Texas case he cites overturned a lower court opinion out of El Paso forbidding the tactic. They upheld the checkpoint even though drug-sniffing dogs were deployed to check every car.

So basically, Texas law enforcement may use license and insurance checks as a fig leaf to justify a tactic that, in my youth, was associated in the public discourse mainly with totalitarian Communist states. Growing up, I can well remember my attorney father associating this practice with Communist Russia ("Show me your papers, comrade," was a running household joke) and proudly contrasting it with the "freedoms" enjoyed in America where, he naively believed, such disgraceful abuses by government would never be allowed.

Even the Texas Court of Criminal Appeals majority in 2011 granted that "A checkpoint to verify drivers' licenses and vehicle registration is permissible, but a checkpoint whose primary purpose is to detect evidence of ordinary criminal wrongdoing is not." But how to distinguish "primary" from secondary purposes? Here, responding to "various criminal activities" was McCraw's first justification, with the license and insurance checks offered up afterward more as an excuse than a reason. But under the CCA holding, they get to do it until some federal court calls them on it.

FWIW, the US Supreme Court case cited by McCraw (City of Indianapolis v. Edmond) actually ruled against, not for, using checkpoints for general crime control purposes. In a concurrence, Justice Clarence Thomas opined, "I rather doubt that the Framers of the Fourth Amendment would have considered 'reasonable' a program of indiscriminate stops of individuals not suspected of wrongdoing." That's certainly my view. Checkpoints are another example where court-created exceptions to the Fourth Amendment in practice have swallowed the rule.

New Mexican highway system will expose flaws in border-security, supply-side drug interdiction strategies

So much of the "border security" talk we hear from Texas politicians falls on a range from trivial to stupid: E.g., calls to further enlarge the already bloated Border Patrol or insistence on building a wall along the border (which would make us perhaps the first ever nation to wall off our own residents' access to a major natural resource like the Rio Grande). Militarizing rural BFE Texas or walling off farmers and ranchers' access to water are such ridiculous suggestions that any sensible person truly interested in border security must oppose or else completely ignore them.

Sadly, American border security and immigration debates tend to focus on myopic, often anecdote-driven issues designed less to solve real-world problems than to amp up culture-war triggers. Those debates do not interest me. Grits has argued at least since 2006 that one of the biggest border security challenges facing the state (arguably number two behind southbound "spillover") was Mexico's decision to massively expand its interstate highway system, specifically to allow easy commercial access to the west coast, where major mountains and minimalist roads made travel times long and even treacherous. The United States has not built a new west-coast port in decades, but trade from Asia is expanding every year by leaps and bounds. Mexico made the (wise) strategic decision to build several new "super ports" on its west coast and to expand its highway infrastructure to position itself as a North American trade hub for Asian goods.

Now, a major superhighway cuts through the mountains in Sinaloa (home to one of the major Mexican cartels) and onto Mazatlan, a major western port, cutting travel times from the Texas border in half. (I'm actually kind of looking forward to driving it.) Highways through Mexico to Brownsville and Laredo have been similarly improved, specifically aimed at maximizing the ease and rapidity of moving commercial goods. A recent article from Southwest Farm Press ("Mexican superhighway challenges Texas preparedness," Sept. 4) depicts local officials struggling with the implications:

Officials in Mexico and Texas are applauding the aggressive highway project, pointing out that trucks servicing the rich agricultural district of Mexico will soon have a shorter and more direct route to Pharr/Brownsville than they do to the Arizona border, where border crossing facilities are already overcrowded.

South Texans have been gearing up for the influx of added Mexican commerce for several years, mostly along the Lower Rio Grande Valley corridor from McAllen to Brownsville. While the McAllen area has increased cold storage and traditional storage significantly over the last five years, the Lower Valley, specifically Brownsville, has been slower to respond, a measure Cameron County and Brownsville leaders say is quickly changing.

At a special meeting of the Brownsville/Cameron County Produce Committee earlier this month, County Commissioner Ernie Fernandez said the community is not ready for the major influx of freightliners expected in the weeks ahead.

"We're not ready...not even close to being ready," he told the committee. ...

USDA estimates confirm that since the North American Free Trade Alliance (NAFTA) was adopted between Mexico and the United States, elevated commerce and traffic has risen significantly. In Texas land ports of entry alone the number of commercial crossings has doubled in just the last 8 to 10 years. In Laredo, for example, land crossing by commercial trucks increased by more than one million vehicles since 1995. In Pharr, statistics indicate more than 300,000 additional trucks have crossed during the same period.

In anticipation of increased wait times at the bridge, local Valley officials say they are hoping to purchase land soon for construction of a staging area adjacent to the Veterans Memorial Bridge crossing.

The story's mainly talking about handling the volume of traffic and goods, at one point estimating the importance of the new highways to be as significant as the construction of the Panama Canal. Mexico exports time-sensitive fruit and vegetable products through Texas, spreading from here across the entire country, and there can already be hours-long waits for inspection at the bridges during peak hours, creating the need for short-term cold storage solutions and other special accommodations for fresh produce.

However, one could say the same thing - "we're not ready" - about the border-security implications of Mexico's new ports and highways. In practice, the overwhelming majority of smuggling into Texas, both people and contraband, comes through the major checkpoints at the bridges. The rise of the maquiladora industry after NAFTA resulted in scores of US companies operating manufacturing plants on the Mexican side of the river aimed at distribution to the American market. Bilateral trade unquestionably benefits both Texan and Mexican economies. But it also masks most human trafficking and contraband smuggling to and from Mexico, and it's about to increase by an order or magnitude.

Building a wall out in the hinterlands or assigning more Border Patrol agents to stalk the brush along the river won't affect the trade situation in the least. And pity the US Customs folks responsible for vetting vehicles at the bridges. It's already physically impossible to check more than a tiny fraction without inhibiting legitimate trade in ways that violate both international treaties and our national interest.

This looming shift in international trade dynamics will utterly swamp Texas checkpoints in the next few years, making a farce of supply-side interdiction strategies that consistently failed to stop drug flows even at much lower volumes.

Drug war cash cow now a budget drain for Hudspeth County

Hudspeth County relies on the drug war as its main income source - not combating drugs smuggled from Mexico but mostly Americans caught with weed on I-10 at a Border Patrol checkpoint in Sierra Blanca. But now that the feds won't cover county jail costs, the drug war is busting their budget. Check out this excellent story from the Center for Investigative Reporting. Here are a few notable excerpts.

In recent years, the busy immigration inspection station has put a severe financial strain on the county and, in the process, revealed the tough monetary consequences of America’s massive expansion of border security and the government’s strategy for curbing the nation’s supply of drugs and illegal immigration.

Despite its remoteness, the Border Patrol’s Big Bend sector, where Sierra Blanca sits, has seen small-time drug busts skyrocket in recent years. An influx of agents tripled the local sector’s manpower, making the agency by far the biggest law enforcement presence around.

The Border Patrol checkpoint rarely catches drug mules making their way from Mexico or border crossers hidden in trunks. Illegal immigration apprehensions in the Big Bend sector historically have been among the lowest along the border.

The Sierra Blanca station essentially has become an immigration checkpoint in name only, as the bulked-up Border Patrol has ensnared mostly Americans there – thousands of them.

Even as the U.S. Border Patrol makes more small-time drug busts, the U.S. Justice Department is generally declining to prosecute these low-level cases. The federal government has largely walked away from paying local authorities to pick up the slack.

Roughly 8 out of 10 people busted in the sector between 2005 and 2011 were Americans caught at a checkpoint, according to data obtained by The Center for Investigative Reporting. A small fraction of those busts are referred to federal agencies for further investigation and possible prosecution. At the Sierra Blanca station, 88 percent of the seizures – mostly marijuana – were traffic stops for amounts below drug trafficking thresholds.

Remarkable story. Read the whole thing. Meanwhile, downstream, the New York Times reports that the Rio Grande Valley is the new "hotspot" for illegal immigration, though the number of apprehensions are less than a quarter of what they were at their height. See their story, framed in terms of the federal immigration bill debate.

Fourth Amendment and Privacy Roundup

Here are a few items related to the Fourth Amendment and personal privacy that may interest Grits readers:

Fourth Amendment violation caught on video, Garland police supervisors don't care
At the Yale Law School conference on location tracking last week, a privacy lawyer said she'd been told that the FBI uses Stingray devices to hunt fugitives because there would never be a suppression hearing and thus no remedy for any Fourth Amendment violation. Apparently that circumstance similarly extends to local police and other Fourth Amendment violations, if the reaction by the Garland PD to a seemingly illegal search caught by surveillance cameras is any indication. An arrest warrant in hand, police went looking at the suspect's brother's house while the family wasn't home, entering the backyard, opening the door to peek in the house, rummaging through duffel bags ("maybe he's in here"), and pawing through papers found in the brother's pickup truck. Tanya Eiserer at the Dallas News has the analysis and video.

Does the Fourth Amendment still fit the 21st century?
In the ABA-Journal, UC-Irvine Law School Dean Erwin Chemerinsky details the Supreme Court's struggles to "apply a provision adopted in 1791, the Fourth Amendment, to a situation that would have been unimaginable at that time," in this case gathering DNA from arrestees and maintaining their profiles in a government database without probable cause or a warrant. He compares the case to US v. Jones, in which SCOTUS struggled to apply Fourth Amendment principles to GPS location tracking. See related comments on the DNA database case from the CATO Institute's Jim Harper.

Court limits suspicionless border searches of electronic gadgets
The federal Ninth Circuit Court of Appeals has ruled that "U.S. border agents do not have carte blanche authority to search the cellphones, tablets and laptops of travelers entering the country — a 'watershed' decision in the court’s own terms and one at odds with the policies of the President Barack Obama administration." Judge M. Margaret McKeown wrote (pdf) for the 8-3 court, “A person’s digital life ought not be hijacked simply by crossing a border.” Wired magazine called it "the most significant privacy decision in the digital age " This doctrine doesn't yet apply on the Texas border (we're in the Fifth Circuit), but clearly the feds must re-think the policy at least in the Ninth Circuit. I wonder if the government will appeal to SCOTUS?

Google gives vague window into use of national security letters
Google's latest transparency report, released last week, for the first time gives a smattering of information about "national security letters" requesting information about their subscribers. Reported Ryan Gallagher at Slate's Future Tense blog, "It was previously revealed that between 2003 and 2006, nearly 200,000 NSLs were used by the FBI to obtain information on people, with the bureau in some cases abusing them to “obtain vast quantities of telephone numbers or other records with a single request.” In late 2003, the feds reportedly issued a number of NSLs in an attempt to build “a real-time census of every visitor” to Las Vegas while pursuing an apparent terror investigation."

Can you opt out of location tracking via smart phones?
Apple has found itself on the business end of a class action lawsuit after it was discovered that the company allegedly "continued to collect data even after users turned off the tracking feature on their smartphones."

Good drone, bad drone: How to regulate them
University of Washington law prof Ryan Calo has a pair of essays - one at CNN.com, the other at the blog Concurring Opinions - related to government vs. private drone use and the complexities of regulating them. He argues that, "Were privacy laws stronger in the United States, we might not worry so much about greater surveillance capacity. But very little in the way of privacy law limits the domestic use of drones." He worries that focusing too narrowly on drone technology risks "squandering an opportunity to confront our inadequate privacy doctrines." Notably, "the FAA ... has granted 1,428 drone licenses so far, saying that typical purposes for the unmanned vehicles include 'law enforcement, firefighting, border patrol, disaster relief, search and rescue, military training, and other government operational missions.'" See a map showing a subset of places where the FAA has approved drone use and a list compiled by EFF, including several in Texas: Arlington PD, Houston PD, the Hays County Emergency Services Office, the Montgomery County Sheriff's Office, the Texas Department of Public Safety (though I'd thought they canceled their program), Texas A&M University, and Texas State University. Bud Kennedy at the Star-Telegram yesterday had a column, "Drone debate lands in Arlington." The website iO9 suggests that Texas' proposed drone photography legislation may go too far, limiting legitimate drone use. See also: "17 Civilian Drone Facts You Should Know."

Back to the Future: The curious case of US v. Jones
In an article with the same title as this subhed, NYU law prof Erin Murphy considers that, "Historically, the Supreme Court has couched the protections of the Fourth Amendment in the language of privacy and property. Yet expectations about freedom from government interference are no longer solely expressed in those terms. People routinely trade their privacy or property interests for complimentary e-mail services or faster toll crossings, and yet unfettered access to such information strikes many observers as contrary to the Fourth Amendment’s core values. If neither privacy nor property theories provide a constitutional basis for oversight, however, then what does?"

The newest toy in the box, part two: DPS deploying military-style gunships in Rio Grande

The Texas Department of Public Safety will soon deploy its own mini-navy along the Rio Grande consisting of gunboats armed with automatic weapons, according to KHOU-TV, which reported that:

next month it's about to launch its own fleet of gunboats.

"It sends a message: Don't mess with Texas," said Jose Rodriguez, Texas DPS Regional Commander.

The state is spending almost $3.5 million in tax money for six 34-foot gunboats, each which can operate in as little as two feet of water. The vessels are outfitted with automatic weapons and bulletproof shielding.

The state's first boat is scheduled to be launched next month to operate alongside the Border Patrol.

"One agency cannot do this alone," Rodriguez said.

The gunboats will be looking for suspicious scenes, like another one the DPS helicopter captured in December showing 10 men riding down the river and sitting on bundles of drugs that were no doubt destined for the U.S.

Anytime someone in law enforcement says they're doing something to "send a message," much less in the same breath with the slogan "Don't Mess With Texas," that's a red flag for spending on worthless pork and PR-driven policing. The vast majority of contraband comes in through the checkpoints, not across the river. (According to a recent report by the Texas Border Coalition, "There is a mere 28 percent chance that a smuggler will get caught at the nation’s ports of entry, compared with a 90 percent of being detected between the ports of entry.") So why double down resources on the parts of the border - i.e., the stretches of river between the checkpoints - where smuggling has mostly been successfully restrained?

There's also real potential for creating unnecessary problems, starting the first time somebody fires off those automatic weapons toward the Mexican side of the river.

"Send a message" is code for "just for show." Patrolling the Rio Grande in crafts outfitted like Swift Boats headed up the river in Vietnam won't make anyone any safer or reduce the availability of drugs in the US, but the boat sure looks cool pictured there in the newspaper, doesn't it? And I suppose for the troopers it's more interesting duty than making traffic stops.

Surprise to no one: Drug smuggling increased after border wall built

Drug smuggling in the Rio Grande Valley increased after the much-touted border wall went up in the area, a Sheriff's lieutenant told a community meeting yesterday. Reported the McAllen Monitor ("Impact of border wall discussed at meeting," Sept. 18):

Drug trafficking from Mexico into Cameron County has increased, not decreased, since the border fence was built, a sheriff’s lieutenant said Saturday at a public meeting.

It was one of many points discussed at the “Border Wall Impact” meeting hosted by State Senator Eddie Lucio Jr. at the Fort Brown Memorial Golf Course. The event brought together legislators, city representatives, state and county law enforcement and private citizens to air concerns about the fence.

“Is the fence keeping drugs from coming in? No,” Lieutenant Rick Perez said responding to a question. “We have more drugs now than before.”

Perez is part of the special investigations unit of the Cameron County Sheriff’s Department.

This outcome was as predictable as the sunrise. Law enforcement has known for years that most drug trafficking happens at the legal checkpoints, not in between them. Even in between the checkpoints, the wall can be easily defeated with tactics ranging from flying ultralight aircraft to drop drugs on the other side to flinging drugs with large catapults to waiting accomplices on the US side. Anyway, show me a 20 foot wall and I'll show you a 21 foot ladder.

This was never more than symbolism, and even Governor Rick Perry can see a border wall adds little to border security. But state Rep. Rene Oliveira told the audience, “The wall is here whether we like it or not ... I don’t think anybody is going to tear it down. The political will is clearly nonexistent for that.” For my part, I wouldn't be so pessimistic. There were many years when one could easily say there was "no political will" to bring down the Berlin Wall, but eventually the wall fell. Who knows, maybe if Rick Perry is elected president, he'll go to Congress and demand, echoing Ronald Reagan, that they "tear down this wall."

Bad homeland security bill gets worse

After some of its more radical bits were stripped out in the Senate, the big "homeland security" bill of the session, SB 9, was larded with reactionary amendments in committee, reports the Texas Observer's Melissa del Bosque. Not only were southbound checkpoints, REAL ID provisions, an Arizona-style E-Verify requirement, and other objectionable elements added to the bill, fees that would have funded the multi-million dollars in new spending in the bill have been replaced with language from a considered-dead House bill that would tap asset forfeiture funds to cover costs. See her story for more details.

Bad homeland security bill gets much-needed makover; still ugly

Forrest Wilder at the Texas Observer says that SB 9, Sen. Tommy Williams' homeland security bill, looks quite a bit less Big-Brotherish as it left the Texas Senate, which "deleted or moderated the most objectionable, civil liberties-shattering provisions." Wilder thusly summarized the changes:

• Deleted - Authorization for police officers to install GPS tracking devices on vehicles without a court order;
  
  
• Deleted - Drivers license and insurance checkpoints that critics said would function as de facto immigration checkpoints;
  
  
• Modified - In the original, a peace officer was required to check the immigration status of someone they were arresting. Law enforcement groups expressed concern that such a mandate would take up ungodly amounts of time. Immigrant advocates worried that individual officers wouldn't necessarily have the requisite expertise. Now, the status-check happens at the jail under the federal Secure Communities Initiative, a controversial program that has rapidly transitioned being voluntary to mandatory.
  
  Sen. Jose Rodriguez, a former El Paso county attorney, voted against SB 9, in part because of Secure Communitites' disturbing record of snatching up legal residents and even citizens. "Nationwide, there have been thousands of cases of U.S. citizens being detained as undocumented immigrants and tens of thousands of immigrants apprehended without a criminal conviction," he said in a statement after the vote. "This is a broken system and not one we should mandate."
  
  
•  Modified - The DPS pilot project for automated license plate readers (background here) remains in the bill, albeit with some constraints. Sen. Kirk Watson, an Austin Democrat, got Williams to accept changes that will require that all data collected from the devices be deleted after one year. Any agreements to share the data beyond DPS would be subject to the Texas Public Information Act, though the data itself would be unavailable to the public.
  
  "It's a very useful tool for law enforcement," said Williams, "but I'm also senstiive that we don't want Big Brother looking over our shoulder any more than we have to."

Regarding the license plate readers, Wilder mentioned that "Grits has opined that the Watson provisions are 'an improvement... but still far from satisfying gruel we're being forced to swallow.'" See also coverage from the Texas Tribune, though Wilder's story did a better job of placing the compromise bill in context from the breathtakingly sweeping filed version.

Notably, SB 9 pays for its multi-million dollar costs by doubling a fee that the Lege is already diverting from its "dedicated" source. According to the fiscal note, SB 9 would raise almost $90 million per year by requiring "an insurer to pay a fee of $2, rather than $1, multiplied by the total number of motor vehicle years of insurance for policies delivered, issued, or renewed. The bill would authorize fifty percent of each fee to be appropriated only to the Automobile Burglary and Theft Prevention Authority." So this is bad fiscal policy as well as troubling from a civil liberties perspective. I don't see one thing in this bill that's actually, presently needed.

Mother of all Big Brother Bills clears committee in Senate

In a brief meeting this week the Texas Senate Transportation and Homeland Security Committee kicked out Sen. Tommy Williams SB 9, discussed here and here, which is more or less the Mother of all Big Brother legislation, at least for the 82nd session. Some of the objectionable parts of the bill were eliminated, including southbound checkpoints aimed at generating revenue from asset forfeiture, but it would still would require arresting peace officers instead of jailers to check immigration status, authorize the Department of Public Safety to use license plate readers, and let law enforcement place a GPS tracking device on your car without a warrant or other court order. Yuck, yuck, and triple-yuck.

The committee tacked on two amendments before kicking the bill out of committee, only one of which (by Sen. Kirk Watson) offered any remedies to the policy concerns on which this blog is focused: It says data from license plate readers can only be used for law enforcement purposes (as if that's some great limitation) and requires deletion of the data after one year if it's not used in criminal investigations. The amendment also makes data sharing agreements regarding information from license plate readers subject to the open records act. That's an improvement, I suppose, but still a far from satisfying gruel we're being forced to swallow. I'd rather the data be deleted immediately if license plate readers don't result in a "hit" for warrants, stolen cars, etc.. And rather than for "law enforcement purposes," IMO the information should be restricted for use in "criminal investigations." That way the focus will stay on stolen cars and fugitives instead of trolling the general public looking for people with outstanding traffic warrants.

Coverage of the bill from the Rio Grande Valley - the only media who seem to be paying much attention besides Grits and the Texas Observer - has focused mainly on the expansion of immigration checks, putting the onus on police officers in the field instead of performing the task at the county jail. I can't believe more media attention hasn't focused on the suggestion that police can put a GPS tracker on your car without a warrant! For whatever reason, and there are plenty available, I'm hopeful this bill gets tripped up somewhere along the line.

Hindsight in lieu of foresight: Corruption among border officials was foreseeable, preventable

NBC News has a fascinating report on growing corruption among US Border Patrol and customs agents:

At a U.S. Senate hearing, it was revealed that Mexican cartel members are infiltrating American law enforcement. There was also testimony that during a hiring push that began five years ago to add thousands of Border Patrol and CBP officers, only 10 percent of the initial applicants were given polygraph tests.

Of those, 60 percent failed, raising concerns about the integrity of the others hired without screening.

"A very large percentage of those they don't test run into trouble within a year or two of being hired,” says Sen. Mark Pryor, D-Ark.. 

Gosh, how could anyone have predicted this outcome? Unless, of course, they read this Grits post when the Bush-era hiring expansion was launched, in which this blog argued:

Seriously - if you were a cartel leader, wouldn't you be manufacturing phony ID papers and sending in your lieutenants to apply for these slots as quick as you could? And do you think the Bush Homeland Security department will handle vetting 10,000 new agents any more competently than, say, the response to Hurrcane Katrina?

Maybe I'm just being cyncial, or maybe I've just seen it happen too many times, but I predict we'll see increased corruption problems among border officials in coming years as a result of this illogically rapid, politically motivated border security buildup.

You could see this coming a mile away, but now those whose, ill-conceived, feel-good policies created this situation five years ago want credit for trying to clean up a preventable mess of their own making: Further evidence, if it were needed, of the results when demagoguery and policymaking collide.

Southbound checkpoints would be a money loser

Southbound checkpoints have been suggested in Texas as a way to seize cash from drug cartels to help with the state budget crisis. But judging from data published in the Houston Chronicle this week, they likely will cost more than they generate. Reported Nolan Hicks, "DPS Director Steve McCraw testified that it could cost as much as $125 million per biennium to provide southbound operations for all of the checkpoints." So how much income could checkpoints be expected to generate?

Homeland Security Secretary Janet Napolitano announced in 2009 that her department would make southbound checkpoints a priority of federal border law enforcement. ...

Since federal southbound inspections were re-established in 2009, seizures of weapons and money have increased; through fiscal years 2009 and 2010, some $55 million and 484 guns were seized during the inspections.

So over the next biennium. southbound checkpoints would cost $125 million, but the federal checkpoints (along the entire border, not just in Texas) generated just $55 million in cash seizures in two years. That means we must expect southbound checkpoints to be a major money loser. If the state wants to participate in drug cartel profits - which undoubtedly are significant - they'd have to legalize and tax. The criminal justice system in and of itself is not a moneymaker. Set up such checkpoints and Texas would likely spend $3 for every dollar seized.

To be clear, I'm all in favor of legal attempts to seize drug cartel profits: I just think they're looking in the wrong place if the focus is on southbound highways (headed to spots that already have federal checkpoints) as opposed to the much more significant money laundering taking place through the US banking system. And in the current, hyper-partisan environment of D.C. gridlock, I won't be holding my breath for improved regulations that would allow money laundering at banks to be properly investigated.

Scaled-back Big Brother bill still pushes license plate readers, GPS tracking w/o warrants

Besides a brief update to a blog post from Karen Brooks at the Dallas News, Forrest Wilder at the Texas Observer seems to be the only journalist who covered yesterday afternoon's hearing in the Senate Transportation and Homeland Security on SB 9 - Chairman Tommy Williams' Big-Brotherish, prosecutor-wish list legislation couched as a border security effort - reporting that the bill became "(Somehwat) Less Big-Brotherish" over the course of the hearing. (On Monday, Grits called the legislation "Big Brother on steroids.") In particular, the idea of using checkpoints for immigration checks or nabbing asset-forfeiture income basically ran aground on the rocky shores of reality:

A long parade of witnesses, including the El Paso District Attorney and DPS Director Steve McCraw, pointed out specific ways that drivers license checkpoints can run afoul of the 4th Amendment.

"I don't think it can be the policy that we're going to use driver license checkpoints to boostrap our way into massive amounts of border searchers," said Robert Kepple, the executive director of the Texas District & County Attorneys Association.

Williams asked Kepple if he thought it would be "problematic" if a cop at a state-run checkpoint asked if someone was in the country legally.

"I think it is," said Kepple. "I'm not sure one follows the other."

That should pretty much nip that idea in the bud.

Another Big Brotherish item removed from the bill: Williams said language eliminating the requirement of an "overt act" for prosecution of conspiracy was a drafting error and wouldn't be included in the final version. It later turned out it wasn't a "drafting error" per se but a recommendation from some unnamed Texas prosecutor - just one which wasn't supported by the state association.

There's still a lot of other unpleasant stuff left in the bill, though: Particularly the expansion of license-plate readers, a topic that Wilder wrote about at length last year. Wilder did add that, "The good news for civil liberties and privacy advocates is that Williams seemed amenable to inserting a prohibition on storage of the data into Senate Bill 9." That may help a little, though it's clearly not going to satisfy the folks who showed up in Nazi regalia to give out satirical "Tyranny Awards" (see a YouTube video of an office visit) to Williams and SB 9 supporters. And while I generally disapprove whenever someone proves Godwin's Law in a public debate, it doesn't satisfy me, either.

A vendor representative testified at the hearing that license plate readers scanning thousands of plates per hour don't violate the Fourth Amendment under existing court rulings, and I'm sure that's true. However, what that tells you isn't that license-plate readers are hence automatically a good thing, but that the 222-year old Fourth Amendment never anticipated that technology might allow such sweeping government tracking of the citizenry's movements. That's why some modern courts have extrapolated  a "right to privacy" from the "penumbra" of the Fourth Amendment: It's clear the Constitution's drafters intended the public to enjoy a measure of security from government intrusion regarding personal information and property, even if technological advances have rendered antiquated language about keeping safe one's "papers and effects."

But the item in the bill I personally hate the most is authorization for law enforcement, without a warrant or other court order, to place a GPS tracking device on your car and track you wherever you go. That makes concerns about the license plate readers appear quaint! Wrote Wilder:

Another dodgy part of Williams' bill allows cops in Texas to install GPS tracking devices on people's cars without a court order. Williams said the provision is needed to help Texas law enforcement "track and combat gang activity."

Currently, under Texas law, law enforcement must get a judge to approve the use of a mobile tracking device.

Senate Bill 9 would give Texas law enforcement the same expansive authority as the FBI or DEA, who are free to install GPS devices on cars so long as it's on public property and is part of a criminal investigation.

In the latest version of the bill, Williams has set the provision to expire after two years.

"Dodgy" indeed! Here again, I don't doubt that federal courts have allowed this. The drafters of the Fourth Amendment could never have conceived that such a thing might even be possible, so how can that poor, overwhelmed, one-sentence 18th-century commandment be expected to cover every possible technological nuance in the 21st century? It can't. There are going to be government intrusions that do not technically violate the Fourth Amendment but which still breach the same personal privacy rights the Founders were aiming to protect. This is just such an instance.

Unfortunately, to extend those old protections into new areas - at least if one doesn't want courts finding new "rights" in the Constitution's "penumbra" - we must rely on legislators' good judgment and respect for personal liberty, neither of which seem to be in nearly as great supply today as in post-revolutionary America when the Fourth Amendment was penned. There's absolutely no demonstrated need for this bill so let's hope somewhere in the process, for whatever reason, it just dies.

See related Grits posts:

• More boondoggle than bonanza: Southbound checkpoints face Fourth Amendment challenges
• Big Brother on steroids: License plate readers, checkpoints, and tracking cars w/o a court order up Wednesday
• Making the same old mistakes on asset forfeiture: Profit motive has no place in law-enforcement strategy

More boondoggle than bonanza: Southbound checkpoints face Fourth Amendment challenges

Interesting testimony this morning on southbound checkpoints (SBs 288 and 294), an idea which was first suggested by senators on the Finance Committee as a possible revenue generator, aiming to tap into cartel profits heading south to fill their short-term budget hole.

Rob Kepple of the Texas District and County Attorneys Association told the Senate Transportation and Homeland Security Committee that, under existing Fourth Amendment jurisprudence in Texas, it's "not a viable policy" to use southbound checkpoints to "bootstrap our way" into expanded asset seizures or to check immigration status. Ouch!

The most problematic question, said Kepple is whether DPS can do its own checkpoints aimed at searching for money, guns, drugs, stolen cars, etc., as opposed to checking for drivers licenses and liability insurance? Courts look at the intent of the checkpoint, he said, and if the intent is to generate forfeiture revenue that probably won't cut it.

Under federal law, according to Kepple and other resource witnesses, after travelers pass a "point of no return" (when it's clear their intent is to leave the country), their Fourth Amendment rights are waived and authorities can search them. Beyond those points, restricted by state and federal court rulings, the Legislature has only ever authorized driver license and insurance checkpoints. Other states have also approved DWI checkpoints. But more invasive searches such as those performed at the border simply aren't allowed, according to resource witnesses (with the notable exception that Border Patrol agents have special, additional authority within 50-80 miles of the border). But outside that "point of no return," said Kepple, state law enforcement has no authority to conduct suspicion-less searches at checkpoints.

DPS already has authority to do DL/insurance checkpoints, but has never prioritized them or implemented policies to perform them, DPS chief Steve McCraw told the committee (taking some of the wind out of Chairman Williams' SB 9, scheduled to come up later in the hearing). Even if they did begin such checkpoints, said McCraw, they couldn't staff them with drug dogs, narcotics officers, etc., without violating restrictions on only using checkpoints for limited, well-defined purposes.

The District Attorney from El Paso, Jaime Esparza, said El Paso and surrounding counties have been doing DL and insurance checkpoints for years. He says DPS has even assisted local agencies in his jurisdiction at DL/insurance checkpoints, including near the bridges, but they were temporary, targeted, locally controlled, and not aimed at seizing money or guns.

A border mayor whose name I didn't catch said the provision in the bill allowing checkpoints within 250 yards of the river was unrealistic because his town and many others had major commercial centers within that zone. The "point of no return" area, by contrast, was a much more well-defined space that doesn't include people going to and from businesses, homes, etc..

Matt Simpson from the ACLUTX said the Legislature should get a chance to evaluate the proposed feasibility study before implementation in order make an informed decision, given that the scope of authority, etc., is uncertain even according to the expert testimony. That sounds to me like a terrific suggestion. Evaluate the study you're mandating before leaping into this. Simpson also suggested that the state look at the cost-benefit analysis for federal checkpoints - how much cash they receive vs. expenses, etc. - before assuming that southbound checkpoints will generate profit. Another good point.

Some of the testimony after the expert resource witnesses was pretty over the top, railing against the drug war generally instead of criticizing specific bill provisions, and about a dozen speakers in someone inevitably proved Godwin's Law. But a significant number of (very different kinds of) people showed up at 7:30 in the morning, mostly to criticize the bills.

Committee substitute language allows the feds to supervise the checkpoints, but testimony at the hearing said that was already allowed, but that the agency simply chose not to do so, understandably assigning troopers instead to cover DPS' traditional, core functions. Indeed, I'm not sure why DPS should provide staffing support for the feds: Do we really need to subsidize the feds on this when they can borrow to pay for the cost while Texas must tax?

This southbound checkpoint scheme sounds like more boondoggle than bonanza.

RELATED: More on checkpoints from Texas GOP Vote. AND MORE: From Karen Brooks at the Dallas News.

Prosecutor wanted Willie to sing as part of pot plea

I almost felt bad about cracking jokes after Willie Nelson's marijuana bust in Hudspeth County last year, but it turns out the prosecutor in the case is the biggest joke of all. Sentencing Law & Policy points to a story from Fox News declaring:

The prosecutor in Willie Nelson's marijuana possession case said the country music legend could get off with just a fine if he agrees to sing one of his songs in court, TMZ reported Monday.

Nelson, 77, was busted at a border patrol checkpoint in Sierra Blanca, Texas, en route to Austin on November 25 last year.  He was arrested but released when he posted $2,500 bond at Hudspeth County Jail.

The prosecutor in the case said he was willing to let Nelson off with a $100 fine if Nelson performed his song "Blue Eyes Smiling in the Rain" in the courtroom, TMZ said.  The prosecutor reportedly said the song would count as Nelson's community service.

If Nelson chooses not to accept the prosecutor's offer, he could face a maximum of 180 days in jail and a $2,000 fine if convicted when he appears in court, at a date yet to be decided.

The judge said that's not happening and later characterized the offer as a "joke," but Nelson deserves a mistrial and dismissal of charges over that sort of garbage. I don't often agree with SL&P commenter Bill Otis, but he was spot on when he declared, "I have no idea if the prosecution is frivolous, but I'm sure the prosecutor is." Community service, indeed!

If the prosecutor wants to haul Nelson into court more for his celebrity than his offense, indeed, apparently simply for his own enjoyment, it wouldn't surprise me if the same was true of officers who busted him in the first place. Thanks in part to wasteful border security grants, the Sheriff's department in Hudspeth County has 17 deputies who handled just 24 index crimes in 2009, the Texas Tribune reported in December, so I'm sure this was the most interesting thing to happen on their beat in many a year.

The funniest thing to me about all this is that the prosecutor got the song wrong! Willie's famous tune isn't "Blue Eyes Smiling in the Rain," but "Blue Eyes Crying in the Rain," thus completing the picture of an ignorant, star-eyed hick who was just happy to be in the same courtroom as the Red-Headed Stranger. What an embarrassment: Thanks, Mr. Prosecutor, for reinforcing every jerkwad stereotype about Texans and Texas Justice held by the rest of the country. (The story has Doug Berman at SL&P soliciting Texan jokes.)

It could have been worse, I suppose. He could have asked for "Georgia on My Behind."

Big Brother on steroids: License-plate readers, checkpoints, and tracking cars w/o a court order, up Wednesday

There are a ton of nasty-sounding bills up in the Senate Transportation and Homeland Security Committee hearing on Wedesday morning at 7:30 a.m. (see their agenda), but I think SB 9 by Sen. Williams has definitely made it to the short list so far among candidates for my own, personal, "Most Despised Bill of the Session. This legislation:

1. Authorizes drivers license and insurance checkpoints (after the Lege and courts have repeatedly rejected DWI checkpoints, which is what police really want).
2. Authorizes a two-year statewide pilot program of roadside license plate readers with tracking data gathered by a private contractor.
3. Requires police officers in the field to check the immigration status of arrestees with ICE instead of leaving the task to county jails after arrest.
4. Requires county jails to calculate and report every month the cost of the unfunded mandate caused by increased incarceration from #3, above.
5. Changes the duties of "special" Texas Rangers to include background investigations and monitoring sex offenders as well as two man patrols in "high threat areas" (no word if that's the border or central Houston).
6. Increases penalties for organized crime but in certain cases removes the requirement of an "overt act" to establish that someone is part of a criminal conspiracy.

I don't think I agree with anything in this bill after the caption: "relating to homeland security." Sen. Williams and others also have bills on the agenda breaking up each of these individual ideas into their own bills, and there are two other bills up from Democrats Lucio and Hinojosa setting the groundwork for southbound checkpoints by DPS aimed at seizing cash they hope will bolster state coffers through asset forfeiture.

Another billl by Chairman Williams, SB 1694,  would allow law enforcement agencies to put a tracking device on your vehicle without a court order!

There is one promising if modest bill up from my own state Sen. Kirk Watson, SB 1572, limiting the information that can be gathered by fusion centers thusly:

A fusion center may not:
                  
(1)  review, collect, or maintain noncriminal information or criminal intelligence data about the political, religious, or social views, associations, military history, or activities of any individual or any group, association, corporation, business, partnership, or other organization unless the information directly relates to criminal conduct or activity and reasonable suspicion exists that the subject of the information is or may be involved in criminal conduct or activity; or

(2)  review, collect, or maintain protected health information, biometric information, or personally identifiable information unless the information directly relates to criminal conduct or activity and reasonable suspicion exists that the subject of the information is or may be involved in criminal conduct or activity.

If they passed that bill I might feel (slightly, marginally) less awful about the idea of putting up license plate readers here there and yon, since the only limitation presently in SB 9 is that the data must only be used "for law enforcement." But really I'm hoping most of the Big Brotherish stuff will get rejected, if only because of the fiscal note (which hasn't been released yet) and the local impact of expanding peace officer duties given limited resources. All these checkpoints, the data collection and analysis, the extra immigration-related enforcement and incarceration, all cost money, if the Lege is honest about it, and seems unwise at a point in time when the state needs to scale back its activities, not find new unfunded mandates and gadgetry to waste the taxpayers' money on.

RELATED: See coverage of SB 9 from the Conroe Courier.

Making the same old mistakes on asset forfeiture: Profit motive has no place in law enforcement strategy

Back during the fight to shut down Texas' network of Tulia-style drug task forces, one of the key revelations that discredited those now-defunct pseudo-agencies, and which prompted a new rule at the Department of Public Safety narcotics division, was that many were focusing their traffic interdiction efforts almost exclusively on southbound lanes, ignoring drugs going north in hopes of snagging more cash, of which they'd get to keep a portion under asset forfeiture laws.

At the time that tactic was seen as discrediting the task forces, and DPS created a rule requiring task forces to spend equal time in the north and southbound lanes, a stipulation that caused many of them not to accept DPS supervision and ultimately led to Governor Perry's decision to de-fund the lot of them, shifting federal grants that used to pay for them to other priorities from drug courts to border security.

Now, though, pretty much that exact same strategy is being suggested as a statewide revenue generating scheme. The Statesman's Mike Ward reported ("Senators, DPS eye millions in seized drug money," Feb. 22):

DPS Director Steve McCraw had just testified that federal officials now estimate that as much as $28 billion a year in cash goes from the United States across the border into Mexico.

Two-thirds of that goes through Texas, he estimated.

"That's the Medicaid budget," Ogden responded after hearing the $28 billion figure.

Since 2006, McCraw said, $140 million in drug cash has been seized along the Texas border, most from trucks and other vehicles headed into Mexico.

With additional officers and checkpoints to examine Mexico-bound vehicles, he said, Texas seizures could increase by as much as 12 percent.

Currently, a percentage of the seized money goes to prosecutors, and McCraw said another percentage — perhaps all the remaining amount — goes into state coffers, depending on whether federal police agencies are involved in the bust.

But Monday's discussion was the first time that additional enforcement has been tied to its success in seizing additional cash, a connection that other states have been discussing to address their budget crises in recent months.

Ogden questioned whether, if the state earmarks additional money to target drug cash seizures, the cost might come out equal to the state's share of what was seized.

"If we're going to spend $50 million we ought to get some credit for this in the budget," he said.

He instructed representatives from the state comptroller's office to investigate how much the state might legally lay claim to in a two-year period, so it could be used in creating a budget.

Other members of the committee indicated an interest in using a share of the forfeited cash, as well — even though Sen. Dan Patrick, R-Houston , echoed other sentiments when he said the suggestion was not to put DPS "on a sales commission" by funding it based on how much drug cash it seized.

Many of the Tulia-style drug task forces had essentially become complicit with drug traffickers, driven by the same motives on display at this Senate hearing. As a matter of macro-level strategy, they de-emphasized enforcement on northbound drugs so they could take a bigger cut of the southbound cash, or as Grits once put it, "living off asset-forfeiture income from traffic interdiction like pirates living off the spoils from plundered ships." (BTW, do you know the difference between a pirate and a "privateer"?)

So instead of having a vested interest in reducing drug trafficking, the larger concern for some task forces was securing their share of the profits, which in many cases was used as local matching funds for re-upping their federal grants. (See a public policy report I wrote on drug-task force highway interdiction back in 2004.) This amounted to tacit (and occasionally explicit) complicity with the drug traffickers, and the task forces' failure to comply with DPS rules on that score was a big reason why the Governor de-funded them in 2006. But these are lessons, apparently, that Texans must learn over and over again: The aims of law enforcement become corrupted when government's priority is maximizing revenue. (Speaking of which, one of the USDOJ budget cutting strategies suggested by the Obama Administration was "Sharing less of the proceeds from property confiscated from criminals with state and local authorities.")

Ironically, on Tuesday the Senate Criminal Justice Committee will hear legislation by Chairman John Whitmire aimed at restricting the ability of local District Attorneys to manipulate their prosecutorial functions to maximize asset forfeiture income. (See related Grits posts rounded up here.) But the state is considering building southbound border checkpoints (as opposed to the northbound ones aimed at illegal immigrants and drugs) for the exact same reasons - to skew law enforcement priorities toward activities that maximize revenue instead of reduce drug trafficking. I don't see how it's much different, or more defensible, than what the drug task forces were doing.