Cognitive Dissonance

Some Texans don't care if the state kills innocent people.

Seventy percent of Texans think the state has executed innocent people, the Texas Poll found (registration required for Houston Chronicle). The same poll found 75 percent of Texans still support the death penalty, and 52 percent opposed a temporary moratorium to fix the system.

If any Grits reader thinks Texas kills innocent people but that we should continue executing them, I wish you'd share your reasoning. I don't get it.

If you want to know how innocent people get indicted in the first place, Kuff has the story of how Harris County stacks grand juries with police and pro-prosecutor courthouse employees. From the Houston Chronicle (registration required).

New Web Site Offers Solutions for Texas' Prison Crisis

Ann del Llano, one of my closest friends, has just launched an important new website for the criminal justice reform movement called Solutions for Texas, created to track and report on efforts to expand alternatives to incarceration for non-violent offenders.

The site's opening salvo points out the dilemma facing the Texas Legislature if they don't enact less punitive policies: "1 in 20 Texans is currently in prison, on probation or parole. The prison population is exploding beyond capacity & TDCJ (the TX Department of Criminal Justice) is $60 million over budget with no sustainable plan."

Many legislators in the Republican majority ran for office pledging no new taxes, and repairing the school finance system already threatens the state budget with gallons of red ink. Del Llano is providing legislators an out -- a way to maintain public safety while avoiding expensive prison expansion that would require new taxes. Let's hope they take it.

Spend Byrne Grant Money on Other Good Stuff

A judge from East Texas replied thusly via email to my post below about drug task forces:

"While I am against task forces generally because of the severe lack of supervision and the questionable tactics that I've observed, I am not for turning down Texas' share of Byrne grant funds. Those funds need to be used for treatment centers and for drug courts to try the major offenders, not these little eight-ball cases."

Thanks, Judge. I agree completely. Proposals by Rep. Terry Keel and others at the Legislature to abolish the task forces would have simply forbidden spending money on them. But Texas would still get Byrne grant money, and could spend it on things local government really needs like drug treatment, probation services, specialized domestic violence units, and juvenile justice resources. LULAC proposed shifting Byrne grant money to those types of services in their recent report.

(For a list of other programs for which local governments can apply for Byrne grant money in lieu of drug task forces, see page 5 of the May 2004 report, Flawed Enforcement, authored by yours truly on behalf of ACLU of Texas.)

TX Drug Task Force Support Dwindling

I'd missed that the College Station Police Department pulled out of the Brazos Valley Narcotics Task Force in September, but their wise decision got me thinking about the now-long list of local governments distancing themselves from Byrne grant-funded drug task forces recently.

Among major cities, Austin, Dallas and San Antonio no longer participate in drug task forces.

In Harris County, the Harris County sheriff pulled its officers out of the program last year, leaving it to be run by the Baytown PD (Baytown Sun, 9-13-03, no longer on web), an agency with an ugly history of brutality. Fort Worth has its own narcotics unit and doesn't need its task force. Only El Paso relies on its area task force for drug enforcement to any major degree among Texas' largest cities.

Amarillo and 26 Panhandle counties disbanded the Panhandle Regional Narcotics Task Force this year as part multi-million dollar court settlement from the Tulia civil cases.

Lubbock PD pulled out of the South Plains Narcotics Task Force because of Tulia-related increases in insurance premiums and fears about liability for officers they didn't hire and control.

The towns of Jacksonville and Alto in Cherokee County pulled out of the Dogwood Trails task force in Northeast Texas last year after a botched drug raid on the wrong house. Jacksonville had been forking over $26,000 per year for the task force, which it's now trying to make up with asset forfeiture income. Indeed, Cherokee County itself nearly pulled out, which would have ended the task force. Two of five Cherokee county commissioners voted to get out of the task force because they weren't getting their fair share of drug enforcement. After the recent busts, which drew questions about racial profiling after 72 black people were charged as crack dealers, that concern must be growing: not one of the 72 arrests was made in Cherokee County.

The town of Mineral Wells pulled out of the Cross Timbers task force earlier this year, reported the Mineral Wells Index (4-14-04, no longer online). Mineral wells officials expressed reservations regarding the task force's "management style," and "serious leadership problems accompanied by lax controls on the agents' daily activities and petty office jealousies that got out of hand."

In September, the Texas Observer noted a couple of other task forces heading south. The North Central Texas task force, covering Denton and Grayson counties north of Dallas, closed down after allegations they'd traded leniency in plea bargains for defendants' acquiescence to asset forfeiture claims -- in essence, trading leniency for cash and prizes. And the City of Laredo pulled out of the Laredo Multi-Agency Narcotics Task Force as the primary grantee this summer, and the grant was taken over by the Webb County Sheriff. They feared liability and decided the task force detracted from more important efforts.

At some point, the inevitable logic of political geography should take over -- when a large enough number of politicians at the Texas statehouse no longer benefit from Byrne-grant funded pork barrel money in their district because they don't have a task force, perhaps the state will abandon this failed strategy entirely to embrace a fairer allocation of funds. To judge by the local exodus, we may have reached that critical mass in the 79th Texas Legislature in 2005.

UPDATE

Highest TX Criminal Court a "Laughingstock"

Texans haven't realized yet the extent to which the Austin-based Texas Court of Criminal Appeals has become a "national laughingstock," as Justice Tom Price put it. Perhaps that's starting to change.

Texas Monthly's November issue includes an article by the intrepid Michael Hall, perhaps at the moment the magazine's best reporter, dissecting the CCA's numerous failures. In a featured case that made national news, the court failed to accept exonerating DNA evidence so conclusive that the Board of Pardons and Paroles released the defendant in a "stunning rebuff."

One case like that might be an anomaly, but Hall shows how it exemplifies a pattern of behavior that's callous to concerns of justice:

"[T]he judges [on the CCA] were mostly ex-prosecutors whose main goal seemed to be to satisfy the state’s appetite for execution; the court reversed only 3 percent of the death penalty convictions that came before it, less than any other state high court. It even had a group of staff lawyers called the Death Squad who worked on nothing but death penalty cases.

"Since 2000, partly in response to the uproar over [the case involving the court's failure to accept DNA evidence], the CCA has moderated somewhat. But the past continues to haunt it. In the first half of this year, federal courts second-guessed a dozen Texas cases, ten of which had been acted on by the CCA after the 1994 election. The federal courts stayed two executions, set aside two death sentences, ordered three new trials, and mandated further hearings and other action in the rest."

CCA Chief Justice Sharon Keller, along with Justices Barbara Hervey and Charles Holcomb are up for re-election in 2006. These three easily constitute the weakest statewide Republican targets available to Democats that year -- much weaker than any holder of a statewide executive seat like governor, lt. governor, attorney general or even land commissioner. The GOP started its Texas takeover twenty years ago with Karl Rove targeting relatively obscure court races. As Democrats begin their own long march back, they too should start with the courts -- in particular, this one.

Austin meanest city in Texas to homeless

The report this week that Austin was the "meanest" city in Texas to homeless people (reg. required to Houston Chronicle) -- the 10th meanest nationally -- should be put in perspective. Dallas has been conducting "sweeps" of homeless people and prostitutes until they had to un-mothball an old jail facility.

The report's probably right, though, that Austin deserves the prize. Our so-called liberal city council has catered to the worst of bourgeois prejudices. The high ranking was based on Austin's adoption of laws that "criminalize the condition of living on the streets," reported the Chronicle. That's not only true, but generously mild.

Exhibit A of meanness: a $250 ticket for "begging in public" given to 81-year-old homeless veteran Robert Stevenson, who was selling a newspaper generated by the House the Homeless Coalition called the Austin Advocate. The charge was dropped once it was discovered no such offense actually exists.

Reported the Chronicle:

"Dallas and San Antonio made the top 20 list and Texas was cited alongside California, Florida and Hawaii as one of the four meanest states for the homeless.

"'Austin basically made the list because there has been sort of a pattern of police harassment, harassing homeless people in the community,' said Donald Whitehead, spokesman for the Washington-based coalition.

"'There's been a number of attempts to discourage people from giving change to panhandlers and sort of targeted approaches of forcing people out,' he said." ...

"The downtown alliance is supportive of proposals to tighten existing ordinances by making it an offense to sleep outdoors in the downtown business area if the person has previously received a warning that such behavior is prohibited.

"Other proposals [city staff] presented to the Austin City Council recently would generally ban solicitation between 7 p.m. and 7 a.m. anywhere in the city, forbid sitting on sidewalks or architectural features of a building, and make it a citywide offense to solicit next to a street, including a median strip."

City officials pointed to recent spending on new homeless facilities, but failed to mention they had to spend that money because they tore down the day laborers site to build the new city hall.

Dallas Council's Sheetrock Apology Not Enough

The Dallas City Council formally apologized (registration required for Dallas News) Wednesday to the victims of the "sheetrock scandal," where Dallas PD, using a handful of highly paid confidential informants, set up more than two dozen innocent people using fake drugs. (The fake substance was initially thought by authorities to be ground up sheetrock, though it turned out to be pool chalk -- both made of gypsum.)

The council's resolution regretted that the "system designed to fight a war on drugs was subverted so that innocent people became its casualties," and called for "good faith" efforts to settle the pending civil suit. Councilmember Elba Garcia said the vote "shows that we are ready to move forward and make sure that this never happens again," but I'm not so sure.

Two Dallas officers have been suspended and face state criminal charges. But the Dallas News reported (2-26-02) that eight DPD officers, in addition to the two who were suspended, reported false positives on field tests for drugs. In other words, though DPD would like to blame the confidential informants or just two bad cops, eight other officers apparently falsified evidence in order to "corroborate" the confidential informant's lies.

All those officers are still working for Dallas PD, and to my knowledge haven't even been disciplined for their role in this shameful masquerade.

How can the city be "ready to move forward" when it has not rid itself of the malignancy of lying cops that caused the miscarriage of justice? Settle the civil suit, certainly, and while you're at it don't be chincy. But the Dallas City Council shouldn't make the mistake of believing the problem is behind them, or that it will "never happen again," when most of those perpetrating the fraud are being protected instead of prosecuted.

Drug War Chronicle Cites Grits

The weeky e-newsletter Drug War Chronicle this week cited Grits' coverage of the Austin police officer killed enforcing Texas' marijuana prohibition laws. Thanks, guys!

Lefty rednecks? It could happen

Southern populism making a comeback? I hope so. I've been arguing a version of this idea for years, but had never heard the term "Leftnecks." I hate the name, but couldn't agree more with the author about the poor judgment exhibited taking on symobolic efforts like removing the Ten Commandments at the capitol or "under God" in the Pledge of Allegiance. Who cares? There's a lot of stuff wrong with Texas and this country that really matters, that affects people in their daily lives. It's time to get serious about it.

What this country's politics need is an infusion of no-B.S. Southern populism -- the kind of ideology that inspired the great Texas Senator Ralph Yarborough, the last Democrat to beat a Bush in Texas for statewide office. Known as 'the people's senator,' Yarborough's campaign signs used to read, "I vote Democrat because I work for a living." Where's that sentiment today?

Too often, American liberals are so quick falling over themselves to condemn Southern racism, they throw the baby out with the bathwater. Typical of the genre, we see statements like, "a majority of people in Alabama are racists," offered today by an obviously frustrated Byron at the Burnt Orange Report in response to news Alabama rejected Prop 2, which would have eliminated court-invalidated Jim Crow language from the state constitution. Byron laments, "I'm increasingly convinced that winning the south (at least most of the "southern" states) is hopeless in the near future if our party is to stand for the values that Democrats believe in."

But that view, widely shared, reflects almost zero understanding of the politics of Prop 2 on the ground. The Christian Coalition led the charge, but their main beef was taxation, not race. Their campaign messages explicitly denounced the racist language, claiming instead the proposal was a "trojan horse" masking liberal efforts to raise taxes. In fact, the Christian Coalition in the South seems to push lower taxes more than they do Jesus Christ, in my experience. The Coalition actually promised that if voters turned down Proposition 2, the group itself would push to remove the racist language in the next election cycle.

So a lot of Alabamans voted against Prop 2 not because they were racist, but precisely because they could be convinced to vote for it without considering themselves racist. That's a much different politic than the one caricatured variously about the blogosphere these days. At root, the arguments carrying the day against Prop 2 were economic arguments, not racist ones. In fact, the religious right routinely frames anti-tax rhetoric as expressing concern for the poor. The Alabama Christian Coalition worries that, "Imposing greater tax burdens on families takes much needed resources from those who can least afford it. " Who do you think they're appealing to with that argument? Poor working folks, yes, many of whom are religious, but whose economic interests would be objectively better served by the Democratic agenda if the subject were debated honestly.

The pivotal harbingers of today's Southern Democratic woes came in the 1964 primaries, when George Wallace ran strong nationwide, carrying Wisconsin, Maryland and Indiana along with much of the South, and in 1968, when Wallace split off from the Democrats over LBJ's Voting Rights Act to form his own party. Best remembered for his 1962 inaugural speech as Alabama governor, where he brazenly championed, "segregation now, segregation tomorrow, and segregation forever" (a sentiment he later renounced), that oft-quoted phrase obscures the populist complexities of Wallace's agenda.

This blog mentioned Wallace the other day in a negative light, and certainly Wallace's segregationist views merit disapprobation. But it set me thinking about the non-racist elements of "southern pride," which stems in part from a code of southern chivalry, a character and a culture of looking out for the little guy. Racism was never the only reason for George Wallace's popularity, or else he couldn't have won a Democratic primary in Michigan as late as 1972. His national appeal stemmed from advocating themes of middle class empowerment, adopted later by Nixon and Reagan, that resonated with working class voters far beyond the South. His American Independent Party platform called for "An insistence that the laboring man and woman be given his fair share of responsibility and reward for the development of the mighty potential of this nation," and "seeking an end to poverty among our people."

I frankly wish we heard more rhetoric like that from the typical Southern Democratic politician. If we did, I think there'd be more of them, or more successful ones.

Midland PD Stops Minorities More Often

Midland police acknowledged stopping minorities more than whites, but dispute whether that constitutes racial profiling, according to a Nov. 7, 2004 Midland Reporter-Telegram article (no longer avalailable free). Reported the paper,

"An area of concern for not just Hispanics but other minorities is fear of racial profiling. In Texas, Hispanics are serving time in prison 2.5 times longer than whites.

"Lt. Jeff Darr of the Midland Police Department said efforts are ongoing to better track whether racial profiling exists. The MPD recently instituted a new way to process beyond state requirements tracking those stopped and searched.

"Regardless, Darr said there is no question Hispanics and blacks are being stopped and searched more frequently than whites.

“'We are taking a proactive approach to finding out why more Hispanics and African Americans are being stopped more,' Darr said. 'Whether it’s racial profiling is not known.'”

The comments came at a Texas LULAC town hall meeting in Midland last weekend. LULAC was promoting their agenda (report in pdf) for "pro-family" criminal justice policies; I should have mentioned it earlier, but was reminded because their final event, the last of a dozen around the state, will be in Huntsville tomorrow.

For those of you unfamiliar with Texas geography, Midland is a very conservative spot in far West Texas. Huntsville is in Central-East Texas, and is the site of the main prison center, including Texas Death Row.

The Midland paper gave a sense of other issues discussed at the LULAC event.

"LULAC statistics show one in 20 Texans are either incarcerated, or on probation or parole.

"The Texas Department of Criminal Justice spends 90 percent of its $5 billion budget on prison beds with the remaining 10 percent on rehabilitation.

"The pro-family report outlines eight myths often associated with the system including incarceration lowers the crime rate and racial profiling does not occur. The report also contains recommendations for change including restructuring penalty levels and options for low-level, nonviolent offenders to serve sentences outside of prison. ...

"Centered at the heart of LULAC’s efforts for reform is the youth who are entering the criminal justice system at alarming rates. Locally, more than 900 youth – the majority Hispanic – stayed at the Barbara Culver Juvenile Justice Center over the past year. Of those, about 500 are repeat offenders, said Adolfo Salcido, director of Midland juvenile probation.

"Salcido emphasized youth have to be held accountable for their own actions, yet he said treatment programs are expensive and funding isn’t always there.

"He pinpoints the problems of youth offenders to the breakdown of the family with single parent homes and grandparents raising grandchildren."

Of course, a lot of these single parents and grandparents are raising kids alone because Mom or Dad is in prison for a petty drug offense, so LULAC's proposals for finding non-prison punishments sound like they would really help Midland's problem.

Stay tuned to find out whether LULAC's Texas organizing blitz on these topics pays off next Spring at the Legislature.

On Democrats and Trampolines

A Republican friend hit me with this one last night: What's the difference between Democrats and a trampoline? You take your shoes off to jump on a trampoline.

Ouch.

Southern Pride

Alright, the South bashing has gotten to me. Even as extremist attacks float around the Internet (658 links according to Technorati this morning), others try to intellectualize their prejudices in less offensive terms.

Everbody calm down! I can't stand George Bush either, but don't give up on the South. Home to MLK as well as George Wallace, Molly Ivins as well as Ralph Reed (actually a Californian), the Dixie Chicks as well as Toby Keith.

By the way, for those pondering why Southerners think liberals (and Yankees) are arrogant, just read a little of the South-bashing on the web right now and see if you can't figure it out. We've even got self-hating southerners speaking up. I'm a white, Scotch-Irish Texan (that's Scott Patrick Henson to you) who is pro-choice, pro-gay rights, who works neck deep in the state's civil rights movement, and you know what? I find myself complaining about arrogant Yankee liberals all the time! New Yorkers who hear a Texas accent make a whole range of assumptions, starting with knocking 30 points off your IQ, and leading downhill from there to jokes about marrying one's cousins. Are you really shocked when Southerners announce, "Well, screw you too!"?

By the way, in every southern state, cities are blue, suburbs and rural areas are red, so there's still a lot of friendly folks down this way. Dallas just elected a lesbian, Latina, Democrat sheriff!

That said, the South is grits central, so perhaps I'm biased.

Debate family values

Democrats' biggest victory in Texas last week had to be Chet Edwards' defeat of Arlene Wohlgemuth for Congress. Noted Edwards in a Dallas Morning News column by Carl Leubsdorf, "I got 64 percent of the vote in President Bush's home county even though almost every ad run by my opponent for six months was that she wanted to go to Congress to work for George Bush."

Edwards says Democrats can't cede territory or issues. "We cannot be a national party by just representing the population centers on the East Coast and the West Coast of the United States," he added. "And we should keep Republicans from having a monopoly on family values."

How to do that? The Texas League of United Latin American Citizens produced a publication calling for "pro-family" criminal justice policies that's a good place to start. Democrat wins in Dallas County demonstrate again that the Democratic future in Texas depends on the party's ability to attract and retain Latino voters. So the ability to combine pro-family themes with messages relevant to Latinos could bridge past some of these entrenched family values debates.

Y'all come back now

Okay, I know it was bad poetry, okay, dreadful poetry, but I just checked the site meter stats to find someone from the Defense Intelligence Agency paid a friendly visit, or I assume that's what "DIA.mil," stands for; it said "(US-DOD)" in parentheses after the IP address.

What's the penalty for half-assed rhyming again?

Naturally all are welcome, I just found that a little odd.

Disturbing Memories of the Next AG, An Ode to Al Gonzales

Albert Gonzales on Texas' Supreme Court
Made sure that big companies don't come up short.
When asked who to execute, Al stood to shout:
Just kill 'em all, man, let God sort 'em out.

Gonzales helped W keep secrets he had
About Iran-Contra and the role of his dad
Sending money to terrorists in Nicaragua.
Just keep it a secret, he said, 'y mas agua.'

Torture the Afghans, that's cool with me,
Said Albert Gonzales in the Land of the Free.
Label them terrorists, then they can go
Get beaten and raped in Guantanamo.

Abu Ghraib's perfect, man, nothing wrong there,
Al said before those bad pictures were aired.
You're objections are quaint, he said, and did I mention
We're no longer bound by Geneva Conventions?

Now the man who okayed this, who just couldn't see,
Has just been appointed the U.S. A.G.
But if he's alright with men raped by thugs
To what will he stoop in the War on Drugs?

Farewell, John Ashcroft (or not)

Ding, dong, the witch is dead.
Ashcroft resigned, the newspaper said.
Sure the next guy might be just as bad,
But just for a moment it's nice to feel glad.

Can't find the terrorists? Don't be forlorn
Bust medical pot and second rate porn.
Sing for the cameras, they really like that.
Wear a windbreaker and FBI hat.

We aren't any safer for all the commotion.
More prisoners in Club Fed than fish in the ocean.
Sure, Osama might just come back,
But until then Ashcroft said, bust blacks for crack.

So farewell John Ashcroft, and please rest assured.
Our nation fares worse given what she's endured.
The reward you deserve, I'm sure won't go down:
To be tarred and feathered and run out of town.

But We're Safer, Right?

Sure, Texas incarcerates more people than anybody else, but it's making us safer, right?

Between stereotyping "Blue State" people for "self loathing" and us "Red State" denizens for "moral denunciation" (which he finds rooted in the violence underpinning southern slave culture), Josh Marshall reports that "The highest homicide rates are in the Old Southwest --- Arkansas, Louisiana, Oklahoma and Texas."

Oh.

What the F*** Are We Doing?

Forty four percent of federal prison inmates are black (Statesman registration required), and nationwide the total number of state and federal prisoners grew last year by 2.1% to 2.2 million. Almost ten percent of black men aged 25-29 are in prison today. Huh. I wonder what's causing the dissolution of the black family?

At sight of these numbers, it's worth running down the big picture costs.

It costs $15K per year per person to lock prisoners up at Texas prices, more for the feds. A majority of prisoners are incarcerated for non-violent crimes. A majority are also parents, and their kids are much more likely to 1) engage in delinquency, 2) drop out of school, and 3) wind up in prison themselves. (A lot of the disruptive kids in school are dealing with an incarcerated parent, I discovered when I was guardian of one.) Not only are these 2.2 million costing money to minimally feed, clothe and house, but they also are unavailable to contribute taxes to lighten the burden on the rest of us. When these 2.2 million get out, and most will, they can't get housing, can't get decent employment, can't vote until they're off parole (in Texas, in some places the ban is permanent). Given limited choices and just a handful of rational options, these circumstances invite, almost assume recidivism. That doesn't even mention our county jails, busting at the seams with low-level offenders society just doesn't know what to do with.

America incarcerates a greater percentage of our people than any country on the planet, and Texas incarcerates more people than every other state, about the same number as California which has 60% greater population. How does a nation run by "conservative" politicians, supposedly dedicated to "limited government," justify this? What the F*** are we doing?

ACLU Testimony: Limit Specialized Police Force Proliferation

For those with a particular interest or a great deal of time on your hands, here's the rather lengthy ACLU of Texas testimony to the Texas Senate Criminal Justice Committee. The topic: specialized police agencies, with a special emphasis on drug task forces. It was authored by yours truly, with information and assistance from the ACLU Drug Policy Litigation Project and Ann del Llano.

In particular, folks who've followed Byrne grant funded drug task force scandals, like the innocent people set up in Tulia or the racial profiling problem in Palestine, will be interested in reading the sometimes outrageous updates from ACLU litigation against a drug task force in Hearne, Texas. Astonishingly, case logs revealed in discovery show black people accounted for 85% of all arrests by the Hearne drug task force.

I included some of my notes for this testimony in a previous blog entry, but this is more fully developed, and includes the new information on the Hearne case.

TO: Honorable Members of the Texas Senate Criminal Justice Committee

FROM: ACLU of Texas

DATE: November 3, 2004

RE: Written Testimony on Interim Charge Number 5: Special Police Forces

Interim Charge Number 5:
Study and make recommendations relating to improving the use of specialized police agencies and officers, specifically, the necessity, accountability, qualifications, and jurisdictions of such police agencies.

Proliferation of special police forces poses question: when is enough, enough?
ACLU of Texas appreciates the opportunity to contribute written testimony on this important topic. The proliferation of special police forces has been an almost universally negative development in the recent history of Texas law enforcement. We hope this committee will take the opportunity to rethink whether this proliferation really helps keep Texans safer.

We have two broad concerns regarding special police forces:

• a large number of small police agencies such as ISD, college campus and parks police are less accountable than more centralized bigger shops, and
• problems with the most notorious special police forces in Texas -- the Byrne grant funded drug task forces.

Proliferation threatens law enforcement credibility
Presently Texas has 2,540 separate law enforcement agencies licensed with TCLEOSE, including ISD police, college campus police (universities, junior and community colleges), parks police, airport police, administrative agency police and a wide variety of others. Article 2.12 of the Texas Code of Criminal Procedure (CCP) lists 32 different types of specialized police officers, in addition to municipal police and sheriffs. Many of those officers don't receive the same level of training or oversight as regular law enforcement agencies, or, e.g. arson investigators, on paper possess narrow jurisdictions and expertise.

Even so, they have the same police powers, with few exceptions, as a supervised officer acting in his or her jurisdiction.

Language already exists in the law that, by itself, would be sufficiently limiting to allow for officer action but protect the public from abuse. CCP 14.03(d) allows officers to arrest outside of their jurisdictions for felonies, breaches of the peace, disorderly conduct and drunkenness committed in their presence. That is a reasonable limitation that allows officers to keep the peace but, by itself, restricts routine law enforcement to officers employed in the jurisdiction.

CCP 14.03(g), however, expands that power dramatically, allowing arrests for "any offense" except traffic violations. (Drug task force officers are even exempt from that.) 14.03(g) completely overrides and subsumes 14.03(d), for the worse, allowing officers to arrest for even the most petty misdemeanors, even fine-only offenses, punishments for which don't even merit incarceration. That's too broad.

The proliferation of special police forces threatens to undermine the credibility of law enforcement, especially at smaller agencies, and has caused accountability for police officers generally to decline. Here are the main problems caused by this explosion of specialized agencies:

1. Gypsy cops. Special forces create a problem with so-called "gypsy cops" where officers move from small agency to small agency, typically after misconduct or other problems that may indicate their unsuitability to wear a police uniform. Officers know if they misbehave and get fired they can just move on down the road. Tom Coleman, the undercover officer in the Tulia scandal, is the most famous example of a gypsy cop (which is law enforcement slang popularized by the Tulia case). Coleman's troubles at a prior agency came to a head in Tulia when a misdemeanor warrant was issued for his arrest while he was working undercover.

2. Resources: Smaller forces don't have sufficient resources for modern, high quality training or equipment for more specialized work involving special types of crimes.

3. Fragmentation: Having so many different agencies assures that information sharing will never be reliable, fragmenting potential for seamless intelligence gathering regarding criminal activity. After 9-11, the federal government changed its laws to allow federal agencies to share more information with law enforcement regarding terrorism, but this local fragmentation makes that goal unwieldy at best and unachievable at worst. Reporting, even for key statistics like arrests and prosecutions, is not consistent in Texas even among the 254 counties in the state, much less for the 2500+ separate little agencies around the state. The sheer number of distinct agencies makes monitoring compliance with reporting virtually impossible, which in turn means that this state does not have clear data upon which to base criminal justice policy.

4. Supervisor shortage: The pool of quality police supervisors in Texas simply is not deep enough to manage 2,540 different agencies. That means many of these special agencies are being led by managers who are frankly unqualified.

5. Qualifications not uniform: Having so many agencies means that a mind-boggling array of differing hiring, training and employment policies and practices from agency to agency muddy the public's ability to determine if an agency hires good officers or maintains high quality policies and practices in the department.

6. Equal protection: Non-civil service agencies in cities whose main police department is covered under the state civil service code can find themselves in a situation where different labor rules cover different law enforcement employees, even when they have the same employer. E.g., in Austin APD is covered under the civil service code, while the Parks police and Austin ISD police are not civil service agencies.

7. Too expensive: Having police in schools and parks is overkill, a more-expensive-than-necessary overreaction to security problems. Security guards equipped to call 911 if needed would be cheaper than commissioned Texas peace officers, and could handle virtually every situation that arises, especially in school scenarios. For parks police, police officers from the local PD could write necessary tickets.

8. Mission creep: In schools, officers presence has led to mission creep, where officers now teach DARE programs in schools as though they're a regular teacher. Studies show these programs are ineffective at preventing drug use, and using commissioned officers as teachers is much more expensive than paying teachers to handle the same classroom duties. Additionally, because they are so abundant police officers end up enforcing simple school rules that would be more appropriately handled by the principle.

9. Letting loose the dogs: Off-duty employment of officers is common, so even at the most marginal departments, officers will possess full-blown police powers 24-7, often exercised on Friday and Saturday night, for example, as bouncers at bars or in some other potentially problematic capacity. But it's likely that the level of supervision found at larger agencies, where some like Houston PD still have had problems, will be lower or non-existent at these tiny agencies no one pays attention to.

Byrne-grant funded drug task forces are counterproductive
The most counterproductive special police forces in Texas are the Byrne-funded regional narcotics task forces. After the infamous Tulia drug sting in 1999, problems at other Byrne-grant funded drug task forces began cropping up statewide. ACLU of Texas has published two public policy reports describing the problems:

• Too Far Off Task (Dec. 2002)
• Flawed Enforcement (May 2004)

Flawed Enforcement includes a list of programs besides drug task forces that Byrne grant money can be used for in Texas (Flawed Enforcement, page 5). Many of the options would address the state's identified critical criminal justice needs and protect the public safety more effectively than continued funding of drug task forces. This committee should consider changing the way the Byrne grant money is spent in Texas. These particular special police forces are not necessary at this time, and the funds could be spent on programs that more effectively protect the public safety.

Case in point: Hearne, Texas - Tulia, but worse.
The ACLU is currently engaged in litigation against the officers of the South Central Texas Narcotics Task Force (this task force was recently consolidated with the Agriplex Drug Task Force) regarding its operations in Hearne, Robertson County, Texas (Regina Kelly v. John Paschall Civ.02-A-02-CA-702 JN). We believe that the egregiously flawed investigations, corruption, and lack of accountability in this task force are endemic to task forces operating throughout the state and elsewhere in the country.

The Tulia scandal in 1999 cost Texas law enforcement and local government entities millions of dollars in litigation fees and damages and sparked national outrage. Once Governor Perry fully pardoned the defendants in Tulia and the City of Amarillo settled for $5 million, the public believed the last chapters of the debacle were finally coming to an end. "Tulia - Part II" is unfolding, however, in the small town of Hearne, and it brings to light the worst of the worst in regional narcotics task forces.

The Hearne case, Kelly v. Paschall, demonstrates that the systemic failures of regional narcotics task forces go far beyond the events in Tulia and the actions of one rogue Texas peace officer, Tom Coleman. In Hearne, the district attorney's office, the commander of the task force and all of the agents involved - essentially the entire infrastructure surrounding the task force-bears blame.

15% of Hearne's Young Black Male Population Arrested on Bogus Drug Charges
In November of 2000, 15% of Hearne's young black male population was arrested and charged with felony-level cocaine sales. Most of them were arrested from the town's public housing complex known as Columbus Village during a swat-style drug raid.

After tabulating hand-written case logs from the task force, since the task force does not compile or report its racial profiling statistics, we found that the South Central Texas Narcotics Task Force has focused its enforcement efforts almost exclusively on Texans who have black skin - 85% of its arrests over several years targeted blacks. 85% black, even though clear data from President Bush's research office shows that people in America use illegal drugs at the same rate whether their skin is black, brown or white.

Six months after the arrests, District Attorney John Paschall dismissed all remaining cases after the arrestees sat in jail - some for as long as six months - awaiting trial and/or posted bonds for bails that the court set as high as $140,000.

The ACLU currently represents 10 of the arrestees in a civil lawsuit, Kelly v. Paschall, against the officers and counties that formed the South Central Texas Narcotics Task Force. We allege that task force officers and the District Attorney directed the arrests of our clients based on fabricated evidence and allowed them to sit jail long after the evidence against them was known to be false.

Task Force Uses Paranoid Schizophrenic, Cocaine-Addicted, Suicidal Confidential Informant
The task force in Hearne recruited an inmate to work as a confidential informant in more than 20 "controlled drug buy" cases. The C.I. is a diagnosed paranoid schizophrenic, has been institutionalized for mental illness, tried to commit suicide in jail, is admittedly addicted to cocaine, and has an extensive rap sheet of parole violations of every sort. The C.I. had repeatedly failed to keep his contract with the court, and yet with knowledge of his history, the task force chose to draw up a contract with him to work as a confidential informant in the largest drug investigation in recent memory.

The contract the task force struck with the C.I. was this: the task force gave him $250-$350 to go out and buy powder cocaine from a list of individuals. They gave him a list of Hearne residents who were to be his targets, all African American, and told him that for every person over 20 he could buy cocaine from, they would pay him $100. The C.I. had to get more than 4 grams of powder cocaine so as to ensure decades of incarceration for each defendant.

No Corroboration or Reliable Evidence beyond the Informant's Word
The only corroboration for the buys made by the confidential informant come from a hand held tape recorder to put in his pocket to record the deals. The informant was rarely searched for drugs before or after the deals, he was told by the District Attorney and agents of the task force that he would not be punished for failing drug tests while he worked as an informant, and the task force did not monitor with wire, videotape, or visual surveillance his movements or time his deals - all violating common practice and policy for professional narcotics enforcement units.

A Threat to Public Safety
The task force agents turned a known mentally ill cocaine addict onto the streets with hundreds of dollars in cash and absolutely no form of back up or plan to protect the informant or bystanders in the community if something went wrong with the deals. To add another factor into the mix, we now know that the task force agents threatened the C.I. with lifetime incarceration of himself and incarceration of his family members, physical harm, and prison rape if he did not agree to work as a confidential informant and succeed in making all the cases. In fact, the C.I. and other former confidential informants have testified that the District Attorney did not merely make this as an empty threat; the D.A. said he would make a phone call to his buddy who happened to be the warden of the prison and assure that the C.I. would be put in a cell with someone with a reputation for raping his cellmates. (See excerpts of the deposition of the C.I on the attached 13-minute video: "Deposition of Derrick Megress".)

The confidential informant was clearly acting out of fear and coercion. Law enforcement officials will tell you that when working with a confidential informant, you always assume that they will lie, steal, and resort to violence if allowed to. Yet in the South Central Texas Narcotics Task Force, the C.I. was trusted as if he were an angel.

No wonder things went wrong.
Task Force Facilitates the Fabrication of Evidence Against Innocent People

In the recent deposition of the confidential informant, excerpts of which are provided to the Committee on videotape attached hereto, the C.I. confesses to crushing up small amounts of crack cocaine and mixing it with non-drug powder - like baking soda or flour - so as to inflate the amount of drugs purchased. He also testifies that task force agents instructed him and taught him to do this. It was a deal for the C.I., because he could buy smaller quantities of less expensive crack cocaine and use it to create the larger quantity of powder cocaine and then pocket the rest of the money from the task force.

The C.I. knew that he could get away with it because he had such little visual surveillance from the task force and no corroboration of the audiotapes, which are wholly incomprehensible and only record loud music, the sounds of car engines, and long periods of silence - but no drug deals.

Drug Sweeps, Arrests, and Time in Jail Based on False Evidence
Before the November 2000 drug bust, the District Attorney felt he had enough evidence - the testimony of the confidential informant and the audiotapes - to conduct a mass arrest of 28 people from which the C.I. supposedly bought drugs. Presumably this poor quality of evidence was presented to the grand jury, and they issued indictments. Grand jury proceedings are held in secret, and the court recently ruled that the information regarding what evidence was presented in the grand jury must remain sealed. So we will never have direct knowledge of the grand jury's basis to indict these individuals, but we do know that the most comprehensive evidence they could have received has turned out to be a series of lies from the confidential informant and audiotapes containing no usable information.

Additionally we have discovered that the confidential informant failed at least one polygraph test concerning his testimony in these cases at least five months before the district attorney dismissed the charges.

All Participating Entities Are Liable for Illegal Actions of a Special Police Force

A federal district court recently issued recommendations to hold Limestone County (in addition to Robertson County) fully liable for the actions of the South Central Texas Narcotics Task Force in Kelly v. Paschall. This is the first federal court statement on the issue of whether counties are liable for the illegal actions of multi-jurisdictional narcotics task forces operating throughout Texas.

Limestone County first applied for a federal grant to fund the South Central Texas Narcotics Task Force jointly with Robertson County in July 1998. Limestone County argued in its motion for summary judgment that it should not be included in the trial phase of the ACLU's lawsuit, scheduled for May 2005, because it did not cooperate in the actions of John Paschall, the Task Force's Project Director and District Attorney of Robertson County, or any other participant in the Task Force.

Magistrate Judge Jeffrey C. Manske of the U.S. District Court for the Western District of Texas, Waco Divison, issued the recommendation against Limestone County because Limestone County signed over all final policymaking authority to John Paschall. The recommendation stated that, "Limestone County, for whatever reason, entered into an agreement with Robertson County by which Limestone County fully delegated its policymaking authority to Defendant John Paschall and retained, at most, a degree of financial control over the Task Force and Paschall by way of yearly renewals of the grant…"

The court found that even though Limestone County may not have directly participated in the Task Force's investigations, that "…the Defendant's [Limestone County] liability is dependant on Limestone County's delegation of policymaking authority, not upon the employment relationship between Limestone County and John Paschall."


Task Forces Do Not Meet Basic Law Enforcement Standards
The agents of the South Central Texas Narcotics Task Force came from the ranks of the local police force. They had minimal narcotics-specific training, no on-the-job evaluation or structured supervisor and they seem to have been recruited and hired through a casual word-of-mouth process, instead through a competitive job search with objective standards of review. This fact virtually guaranteed that none of the task force agents could do undercover work themselves, since they were recognizable faces in the community.

These agents were trusted to handle money, drugs and guns without meaningful supervision or safeguards - a combination that any seasoned law enforcement official will tell you is disastrous. As it turned out, two task force agents were found to be using or harboring cocaine - one had a bag of crack cocaine in his house and another tested positive for cocaine and resigned.

Regional narcotics task forces are ineffective
Their existence and record of arrests have shown virtually no demonstrable decrease in drug supply or demand in local communities. In fact, their stated goal is to simply increase the number of petty drug arrests each year. These types of task forces explicitly target the lowest level dealers and users who are easily replaced and self-replicating due to the power of addiction and economic incentives of the black market. The state of Texas would do better to allow highly-trained law enforcement agencies, such as those incorporated directly into the Department of Public Safety or the DEA, to enforce current drug laws at the very highest levels of supply.

Meanwhile, Texas has a serious need for evidence-based cognitive skills programs that are proven to stop crime. Research is now conclusive that certain programs stop crime and protect the public safety more effectively, especially with drug users. The state of Texas should reserve federal Byrne grant money for prevention and treatment programs that are proven to decrease substance abuse and related crime.

Regional narcotics task forces are doing more harm than good
These drug task forces use much-needed drug and violent crime prevention funding better spent on other programs, put confidential informants and the general public in greater danger of falling victim to the violence associated with illicit drug markets. In some cases, the task forces introduce an artificial demand for drugs through their own investigations by coercing local citizens to convince as many other people in town as possible to help them find illegal drugs and then arresting them. Over and over, we find the task forces offering drug users a free ride if they can lure others into the drug market to boost the task forces' arrest numbers.

It is not possible for DPS to "command and control" the task forces
The DPS experiment has failed. The lack of management, supervision, and accountability that has become the defining characteristic of regional narcotics task forces makes virtually impossible their effectiveness and compliance with basic constitutional requirements.

The state of Texas has attempted to significantly alter the structure of supervision, training, and accountability through a division of DPS that attempts to "command and control" each and every agent of each and every regional narcotics task force. More cases like Tulia and Hearne continue to arise, even in the past month, conclusively demonstrating that DPS is not able to command or control these rogue task forces due to their innately flawed political structures.

The commander of the drug task force that supervised notorious officer Tom Coleman and the Tulia drug bust, Lt. Mike Amos, testified in court under oath during the Tulia writ hearings that nothing had changed in how the task force operated after DPS took "command and control."

A drug task force in Palestine, Texas, executed a drug sweep in October of this year that proves that two years after DPS has taken "command and control", DPS has absolutely no command or control. The recent news article, "The Usual Suspects," details how the Dogwood Trails Narcotics Task Force publicly defies DPS rules and policies. In spite of DPS' clear instructions to work on drug organizations with the goal of reaching the top distribution points, the Byrne-funded drug task force is proud to announce in the media that they have caught 72 drug dealers (statistically impossible, most of them are accused of having small quantities) in a town of 17,000 people and they intend to send them each to prison for decades. We are sad to report that once again, every single defendant has black skin.

It is impossible for DPS to "command and control" localized task forces because they are political entities controlled by political players from various jurisdictions. When DPS attempted hold a Byrne-funded drug task force accountable, DPS was completely ignored and was forced to write an embarrassing account of the problems in a public memorandum to the Governor's Criminal Justice Division. The memorandum shows that no entity, not even the Governor's office, is responsive to DPS. (See the attached 2-20-03 DPS memorandum, one copy of the attachments to the memorandum is provided to the committee clerk.)

Even if they could control the task forces, do the State of Texas and DPS really want to take legal responsibility for groups of unsupervised and unaccountable peace officers who deal irresponsibly with drugs, money, and the black market on a daily basis? Regional narcotics task forces are impossible law enforcement entities that set officers up to fail, create dangerous situations for the public, and expose all participating government entities to unprecedented risk of financial liability.

Recently the Lubbock Police withdrew from the South Plains Regional Narcotics Task Force, citing increased liability risks for the department for the actions of all participating officers - officers over which the leader of the task force does not have hiring discretion. The Lubbock police also stated that the large geographical area to be covered made supervision extremely difficult.

Since Tulia and Hearne and a host of other incidents, we have reached a point where no one - not even law enforcement - wants to be liable or responsible for the actions of regional narcotics task forces. This is perhaps the most telling testimony of their incorrigible failure.

Recommendations
1. Consolidation of specialized police forces should be a state priority, with both carrots and sticks employed to convince local agencies to cooperate.

2. Alternative security arrangements to using commissioned Texas peace officers should be explored where possible like in parks and schools and administrative agencies, with security relying on 911 service in the event of occasional but rare need for actual peace officer powers.

3. Funding for regional narcotics task forces should cease and instead Texas should reallocate the almost $31 million per year in federal Byrne funds to effective drug and violent crime prevention, most importantly, to much-needed drug treatment programs and drug courts to alleviate the current Texas prison over-crowding crisis.

4. Delete CCP 14.03(g). The provision in 14.03(d) provides out of jurisdiction officers all the leeway they need to keep the peace. 14.03(g) removes all restrictions on officers' actions, making them as powerful outside their jurisdiction as within it. Officers in their jurisdiction are subject to supervision and oversight; outside their jurisdictions they become potential loose cannons, creating liability with every law enforcement action.

5. Limit scope of specialized police officers' authority. Consider implementing restrictions on the law enforcement powers of specialized police forces listed in CCP Art. 2.12

6. Corroboration of evidence should be required in all undercover drug cases. Police officer testimony must already be corroborated in certain cases. (See attached fact sheet, "Require Corroborating Evidence in Undercover Drug Stings.") Texas law should provide this logical safeguard in undercover drug cases because it is undisputedly a special high-risk environment for corruption.

7. All special police forces should be required to comply with Texas' racial profiling statute. Although special police forces like the drug task forces may be the most unaccountable police forces in the state, they argue that they are not required to comply with Texas' racial profiling statute. All Texas police forces should be required to track their actions, especially when hand-tabulated numbers from hundreds of pages of logs show that 85% of enforcement is against blacks in some drug task forces.

8. Consent searches should be banned in Texas. California has banned consent searches because they waste officers' time and they tend to be used more often against people of color. Texas should take this common sense step.

We are grateful for the Committee's time and would be happy to supplement our statements with further documentation at the request of the Committee.

Respectfully submitted,

Scott Henson
ACLU of Texas

Nuther Item On the Jail from Judge Biscoe

One more housekeeping item regarding officials' desire to expand the Travis County Jail. See Grits initial discussion of this topic, County Judge Sam Biscoe's response, and then my followup column. Toward the end of last week, Judge Biscoe forwarded an additional clarification of his position regarding the citizens advisory committee that will analyze the proposals, and I responded, but forgot to post them. Find both notes below.

From Judge Biscoe:

For the record, Travis County has used citizens advisory committees  in anticipation of seeking voter approval of bond issues.  Citizens have periodically assisted with the selection of roads, parks, buildings and jail construction projects to put on bond issues for at least two dedades.  More than anything, citizens are able to help us pare down and priotize lists of projects.  Typically, the county advises the committee of outstanding debt capacity and possible projects, and  committee members recommend what projects to pursue.  Last time, the Commissioners Court decided to go to voters with an issue about $100 milion smaller than the one recommended by the committee.  Our policy is to complete the approved projects within five years.  Therefore, we have been appointing a new advisory committees every four to five years.



In my view, this is a time-tested way to obtain citizen input up front. The Commissioners Court retains ultimate responsibility for the projects.

To these comments, I replied thusly:

Judge,

With all due respect, in my experience these panels are 1) handpicked with a purpose, and 2) their outcomes are circumscribed and defined by the issues and proposals given to them at their outset. Such recommendations inevitably take on a life of their own, and later become justification in and of themselves for action -- self fulfilling prophecies like the SH-130 deal. Even your comments argued that a past decision was conservative because you didn't issue as much debt as an advisory committee recommended. That's why I think its existence provides cover and perhaps diminishes accountability.

On the advisory commission, perhaps we can agree to disagree; I know that's a common, traditional method, and not just your doing. On the issue of alternatives to incarceration, though, I know you and I share some of the same goals. I hope the court will try some of the proposals in my blog this morning before pressing for more debt. Or at least do both at once.

Best regards,
Scott Henson

I think it's really cool that Judge Biscoe has discussed this issue openly with the blogosphere, even where he and I may disagree. It shows a certain level of respect for one's constituents, and you've gotta like that. I haven't heard back from any of the other county commissioners, including my own representative Ron Davis, but rest assured Grits will continue to monitor the issue as it progresses toward a possible November 2005 bond election.