Too Far
O f f Ta s k Why, after Tulia, Texas should re-think its Big Government approach to the Drug War, abolish narcotics task forces, and save $200 million this biennium
The mission of the ACLU of Texas is to defend and enforce the Bill of Rights and American civil liberties, and to preserve them for each new generation. The ACLU Foundation of Texas is a 501(c)(3) first chartered in San Antonio in 1936. For More Information Contact
PO Box 3629 Austin, TX 78764-3629 512-478-7309
http://www.aclutx.org Executive Director: Will Harrell Report Author and Design: Scott Henson with research assistance from Barbara Watson
Acknowledgements The author gratefully acknowledges edits and comments from Nate Blakeslee, Barbara Markham, Kathy Mitchell, Will Harrell, Ann del Llano, Steve Hall and Jeff Blackburn, while retaining full responsibility for any errors or omissions.
Note on Sources: All quotes and statistics from Task Force applications come from documents obtained from an open records request to the Criminal Justice Division of the Governor’s office.
Contact Will Harrell Executive Director ACLU of Texas (512) 478-7309
Executive Summary
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Too Far Off Task
CLU of Texas considers our state’s 45 regional narcotics task forces (RNTFs), which are funded through the federal “Byrne grant” program, failed, 15year experiments that have filled Texas prisons with nonviolent offenders, disrupted countless families, tainted Texas law enforcement with scandal, and generally outlived their usefulness. They should be disbanded to focus scarce resources on more pressing matters. ACLU gratefully welcomed innovations spearheaded by the Governor’s office in the form of new DPS oversight and rules for these task forces – the rules are the most important step yet toward RNTF reform. But the breadth and scope of task force racial profiling and other scandals convinces us that, from the perspective of best limiting drug use and crime, these task forces create a lot of grief and few solutions to local problems. Unfortunately, they are no longer worth the state funds expended on them.
fully uncovered dozens of cases of people falsely imprisoned based on fabricated evidence in undercover drug stings.
At least 180 Texas drug cases were dismissed from 2001 because uncorroborated undercover police officers were discredited or unavailable at trial.
Abolishing RNTFs would save $199 million this biennium, $372 million next biennium, plus free up $60 million in Byrne grant money for more productive uses.
Recommendations: ACLU makes the following recommendations in light of these findings. 1.
Key findings:
Byrne-funded Regional Narcotics Task Forces (RNTFs) have put innocent people in jail and mistakenly killed people.
Various prosecutors have alleged RNTF agents tampered with evidence, falsified documents, stole drugs, dealt drugs, transported drugs, and gave drugs to minors.
RNTF undercover operations encourage people to commit crimes they might not otherwise commit.
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Byrne task forces are not self funding. They cost state and local governments $20 million per biennium in matching funds, and cost the state hundreds of millions in incarceration costs for mostly non-violent drug offenders.
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Byrne Grant money can be spent on much more productive things than RNTFs, including infrastructure for homeland security, or programs to combat domestic violence and other violent crime.
Racial profiling by RNTFs contributes to disproportionate incarceration of black people for drug crimes.
Requiring corroboration for confidential informants, a new law passed by the 77th Texas Legislature, has success-
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Abolish RNTFs and use Byrne Grant money on more constructive, less expensive pursuits. This saves $199 million in incarceration costs, and free up $60 million in federal Byrne grant money for drug treatment, alternative sentencing options for juveniles, anti-domestic violence programs or anti-terrorism work as outlined in the Texas Homeland Security Task Force recommendations. Make Governor Perry’s “presumption of ownership” standard apply to all Texas asset forfeiture cases. Require corroboration for testimony by any person acting covertly under the color of law enforcement, including not just confidential informants but licensed officers, to obtain a conviction under Texas’ controlled substances act. Change outcome measures for Task Forces and other drug enforcement efforts to measure things that indicate positive outcomes for drug abusers, arrestees, and their families, not just arrests and forfeitures. Anticipate lower contributions from asset forfeiture and greater taxpayer costs for RNTFs in the future. Small, undercover “buy bust” strategies generally should be avoided as anathema to privacy rights and constitutional limits on government. Under the best of circumstances they border on entrapment. In the worst cases we find Tulia, Hearne, Floresville and the Dallas “sheetrock” scandal. Avoid “mission creep” where RNTFs attempt to shift their duties from the Drug War to the War on Terrorism. Instead, use Byrne money freed up by task force abolition to fund priorities identified by the interim Homeland Security Task Force led by David Dewhurst.
Too Far Off Task Why, after Tulia, Texas should re-think its Big Government approach to the War on Drugs, abolish narcotics task forces, and save $200 million this biennium
Part 1: The Problem
RNTFs, undercover drug scandals tarnish law enforcement reputation
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ob Herbert’s recent series on Tulia in The New York Times underscored the extent to which Byrnegrant-funded regional narcotics task forces (RNTFs) in Texas have become a national disgrace.1 Thirteen people remain unjustly imprisoned from the Tulia sting, and 11 more from Hearne, where a confidential informant was proven a liar in court and charges against 17 defendants were dismissed.2 But these are not isolated incidents. Other task forces have harmed innocent people. Officer Albert Villareal with the 81st Judicial District Task Force based in Floresville was indicted for setting up innocents in “buy busts,” much like Tom Coleman was accused of doing in Tulia. Villareal was indicted for tampering with government records, fabricating evidence, witness tampering, official oppression, and abuse of official capacity. Prosecutors say his actions tainted at least 14 cases. He was convicted but given only 10 years probation.3 All of Villareal’s cases targeted either innocents or, at most, small time dealers. But when his 81st Judicial District Task Force did seize 70 lbs of real cocaine in the group’s largest recent raid in September 2001, charges were dropped because a task force member, conspiring with three others, stole all the evidence from their offices in a nighttime burglary. The cocaine has not been recovered.4 Other victims of task force bungling wern’t so lucky. In December 2001, a Capital Area NTF officer “shot and killed unarmed 19-year-old Tony Martinez, during a raid on a different mobile home in Del Valle. Martinez was not the target of that raid.”5 There have also been management problems at the top, some of which have been reformed by the current administration. A
recent audit of the Governor’s Criminal Justice Division, which oversees federal grants to Texas’ narcotics task forces, revealed $15.6 million in 2001 grants may have been given improperly or without documentation.6 In June 2001, the head of the Texas Narcotics Control Program was demoted after the Governor learned he’d driven three different cars seized by a friendly task force and spent thousands on unauthorized gifts and awards to task force officers.7 These are not the first instances of RNTF corruption. In June 1998, then-Governor George Bush cut off funds entirely to the Permian Basin Drug Task Force amid “allegations ranging from evidence tampering and fraudulent reports to bribery and theft.” Bush responded to growing public awareness of longstanding drug-related corruption allegations in Permian Basin law enforcement. Task force chief Midland County Sheriff Gary Painter was a deputy under former Presidio County Sheriff Rick Thompson, now serving a life sentence for a 1991 conviction for possession of a horse trailer full of uncut cocaine. 8 Last year the director of the Alamo Area Task Force was indicted for stealing drugs from the Task Force evidence locker. He was charged with possession of cocaine and stolen firearms. An investigation before his arrest revealed that 1.1 pounds, or a half-kilo, was missing.9 The head of the Ellis County Task Force committed suicide one day before an audit would have revealed that thousands of dollars in task force funds were stolen.10 In Seguin, a task force officer was indicted October 2002 for stealing car stereos from seized autos.11 In some cases, RNTF activities create crime when none would otherwise exist. In Kerrville, a task force roped in a pretty young blonde woman as a confidential informant (CI) in a small possession bust. To avoid prosecution, she agreed to set up five people. Police told her to sit in a bar, flirt with men, then ask whether they could get her marijuana.12 Not only does this tactic play on men’s gravest weaknesses to convince them to do something they might not otherwise do, but it put this young woman in harm’s way by using her as sexual bait to entrap young men in a small town. The list goes on. (See p. 5 for more RNTF scandals.)
Recent Texas Drug War Scandals Is the cure worse than the disease? Byrne-Funded Narcotics Task Forces 1. Austin (state oversight): In June 2001, the head of the Texas Narcotics Control Program, Duke Bodisch, was demoted; an audit revealed he’d driven three different cars seized by a friendly task force and spent thousands on unauthorized gifts and awards to task force officers. 2. Austin (state oversight): The state auditor reported in September 2002 that the Governor’s Criminal Justice Division, which oversees RNTFs, either improperly paid or grantees failed to justify $15.6 million. 3. Midland: June 1998 Governor Bush defunded the Permian Basin Drug Task Force amid allegations of evidence and document tampering, bribery and theft. 4. Tulia: 46 indicted on the word of an unreliable officer from the Panhandle RNTF, recently proven a liar in court; 13 still imprisoned. Tulia drew international attention. 5. Hearne: A crooked confidential informant for the South Central Texas Narcotics Task Force helped set up 28 people. Seventeen went free when the CI was proven a liar in court; 11 who were convicted or pled out remain in prison. For the raid, TF officers wore black masks with riot gear, and essentially locked down an entire neighborhood while those on the corrupt CI’s list were rounded up. 6. Lampassas: Former commander of the Rural Area Narcotic Task Force Jackie Cox was fired in December 1999, accused of sexually harassing a woman during a narcotics investigation and taking more than $11,000 in cash and property from the task force office. 7. Floresville: 81st Judicial District TF officer Albert Villareal allegedly protected drug dealers, stole confidential funds, coerced a witness and delivered pot to a minor. Convicted of setting up innocents, October 2002. 8. Floresville: Prosecutors dismissed charges against a drug dealer after an 81st Judicial District TF officer and 3 accomplices stole the evidence – 70 lbs of cocaine. The thieves were indicted but the coke was not recovered. 9. Ellis County: Task force chief committed suicide right before an audit revealed theft of thousands of dollars, the 2nd time in a year large amounts of money came up missing. 10. Austin area: In 2001, the Capital Area NTF – a) Killed a 19-year old innocent in a drug raid targeting someone else, and b) Deputy Keith Ruiz was killed in a separate, poorly planned raid by the same, now disbanded TF. 11. Wimberly: Members of the Hays County NTF killed Rusty Windle in a pre-dawn 1999 raid. Windle allegedly twice sold a confidential informant half ounces of pot. Eleven of 14 people busted in that sting later had charges dropped because the informant was discredited by allegations he’d sold dope to children. 12. Spicewood: A woman sued the Capital Area TF for civil rights violations after a raid and illegal search based on
aerial surveillance mistaking ragweed for pot. 13. Maverick County: In December 2000, former Maverick County NTF officer Wilbur Honeycutt was sentenced to 15 years in prison for shooting a Mexican immigrant in the back. Honeycutt shot and paralyzed Monje Ortiz as he fled back toward Mexico after being caught attempting to cross into the United States. 14. San Antonio: In 2001 John Beauford, head of the Alamo Area NTF, was convicted of stealing drugs from the task force evidence locker. 15. Live Oak County: Central South Texas NTF officer Xavier Villareal convicted October 2002 of dealing dope. 16. Seguin: Task force officer Pablo Gonzales indicted October 2002 for stealing radios from seized autos. 17. Chambers County: In October 2001 The Texas Observer published a major investigative story accusing the Chambers County NTF of large-scale racial profiling. The Observer described task force case logs listing “row after row and page after page of black defendants, most of them street-level crack dealers.”
Other Recent Texas Narcotics Scandals 1. Dallas PD framed 86+ innocents with fake drugs and testimony of CIs making upwards of $200,000 per year; possibly hundreds more in prison set up with real cocaine. 2. San Antonio: Ten police officers caught in a department ‘sting’ thought they were transporting illegal drugs; 33 cases dismissed. 3. Austin: Federal investigation stopped by APD brass when it focused on more than a dozen APD officers who allegedly transported drug shipments, protected dealers, used drugs, and participated in other illegal activities. 4. DPS-Houston: Undercover DPS officer Johnnie Davis arrested April 2002 in Houston for robbing drug dealers. 20+ cases dismissed where Davis was a key witness. 5. Grand Prairie narcotics sgt fired summer 2002 after $1,000+ came up missing from the unit’s cash fund. 6. Denton: Six of 12 officers in the FBI’s Denton-Collin County NTF indicted fall 2001 for drug running and document tampering. The dozen for whom charges were dropped included former Dallas Cowboy Michael Irvin. 7. Dallas, Houston, Beaumont, Port Arthur: In 2000 the DEA deactiviated its most prolific professional informant, Andrew Chambers, for lying on the stand in at least 16 cases. His testimony convicted 475 people since 1984, including more than 50 Texans.
of Albert Villareal with the 81st Judicial District Task Force in Floresville shows Tom Coleman and Tulia were not an aberration. Police officers demonstrably have faked undercover Texas drug cases.
Failure to corroborate leads to corruption, waste
Corroboration helps even if there’s no officer misconduct. In Brownwood, 10 cases were dismissed in 2001 because an undercover officer died and his drug buys weren’t video or audiotaped.
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he Texas Legislature and the Governor deserve a great deal of credit for passage of the 2001 Tulia law requiring corroboration for confidential informants (CIs) in undercover drug stings. That law dramatically affects Byrne RNTFs, which collectively requested $1,941,286 in funds for CIs in their 2002 grant applications. When Texas implemented its new undercover corroboration requirement for non-police officer confidential informants in September 2001, Dallas was perhaps the first place to feel the impact. When prosecutors went to corroborate testimony by certain informants they’d used for years, they discovered many of the busts had involved people set up with fake cocaine – pool chalk that investigators first believed was sheetrock, packaged up as dope. Attorneys for the first defendants who were released as a result of this incident were told their clients were let go because the DA could not corroborate the confidential informant testimony, reported the Dallas Morning News. From there the dominoes fell, until 86 people were released from prison or had charges dropped as a result of the scandal. Now it’s come out the same informant may have set up hundreds more people with real dope.13
Texas law now requires corroboration for cases where a CI is the only witness, making these cases stronger. But when a police officer is the only witness and the officer is discredited or unavailable, the cases fall apart. At least 180 2001 Texas undercover drug cases were dismissed because discredited or deceased police officers did not provide corroborating evidence to support their testimony in drug stings.14 Not only does each such dismissed case cost thousands of taxpayer dollars to develop, but misconduct by officers may incur millions in civil liability for local taxpayers that could have been avoided through greater oversight of undercover agents.
Bloated, ineffective bureaucracy
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exas has a major problem governing these shadowy entities which operate with little accountability. They have evolved into bloated, ever-expanding bureaucracies, now with more than 700 officers, that have not diminished drug use at all.
The Dallas "sheetrock" scandal made clear that where one finds a dirty confidential informant, a dirty police officer may not be far behind. Dozens of phony “field tests” administered by officers allegedly turned up positive for cocaine, suggesting widespread police complicity in setting up the defendants.
Despite the growth of task forces since their creation in 1987, neither drug use nor availability has significantly declined.15 In fact, all 45 task forces described very high or increasing drug activity in their areas in their 2002 grant applications.
But even blaming the Dallas "sheetrock" scandal solely on CIs, a position which appears increasingly untenable, the case
For example, the Central East Texas NTF reported in its grant application that “narcotics trafficking is unusually high.” The
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ACLU of Texas * Too Far Off Task * December 2002
Drug Enforcement TF in south Texas reported a “high incidence of illicit drug trafficking.” The Agri-plex Roadrunners NTF in McLennan County “has seen an increase in illegal substance activity.” The Henderson County NTF said “the distribution and manufacturing of illegal controlled substances is at an all-time high.” “Drug violations have risen over the last two years in the Task Force’s service area,” bemoaned the 25th Judicial District NTF based in Seguin. “Madison and Leon Counties have experienced an increase in narcotic activity,” declared their area NTF. And the Rural Area NTF based in Lampassas described “an almost risk free environment for possession, sale, distribution, manufacture or cultivation of controlled substances” in their area. Of course, it’s possible drug use isn’t so epidemic, and these statements are merely examples of grant-dependant bureaucrats trying to justify next year’s funding by claiming a dire, immediate need. But to the extent these statements are true, they’re concrete evidence that in 15 years Byrne task forces have utterly failed to stem the tide of drugs in the communities they serve. There’s no evidence task forces have solved or even mitigated Texas’ substance abuse-related problems. Task forces’ goals are misdirected toward maximizing their “numbers.” The Goal Statement of the Deep East Texas Regional NTF was typical: “we have consistently been in the top ten number of felony arrests, value of drugs seized, and assist (sic) arrest. Our goal is to increase each of these categories by at least 10%.” The 33rd Judicial District Task Force in Marble Falls promised a “5% increase in cases investigated and arrests.” The West Central Texas Interlocal Crime Task Force based in
ACLU of Texas * Too Far Off Task * December 2002
Taylor County uses as its outcome measures number of arrests and criminal caes filed, amount of narcotics seized, and non-drug assets seized. But, if Texas’ goal is to rid communities of drugs, shouldn’t we at some point have as a “goal” that the number of arrests decline? And doesn’t setting goals of ever-increasing arrests and prosecutions create incentives for the kind of behaviors that caused the Dallas "sheetrock" scandal, and that caused then-Attorney General John Cornyn to name Tom Coleman “Lawman of the Year” for his role in the Tulia busts? Current buy-bust approaches to the drug war pit police against the community in every major city and town in the state. Much of this stems from an unjustified “Us vs. Them” attitude encouraged by ardent Drug Warriors in law enforcement. For example, the El Paso County Metro Narcotics Task Force stated in its grant application, “It is estimated that 25 percent of our populace is link (sic) to drug use, drug trafficking and money laundering … These people/organizations have displayed continuous criminal intent that increases drug activity and other crimes in our area.” Consider the implications for El Pasoans! To believe 25% of the public displays “continuous criminal intent” is to pit oneself against average, productive taxpaying, citizens. Law enforcement agencies need good relations with the communities they serve to help root out more truly dangerous criminals. Those relations are jeopardized when police think one-quarter of the public are criminals who just haven’t been busted yet When the 78th Legislature convenes, anyone looking to cut ineffective, costly, scandal-ridden bureaucracy from the state budget should focus closely on regional narcotics task forces.
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Millions
Monthly Savings from Abolishing Texas RNTFs FY 04 and FY 05 Total: $199 Million
The Myth of Self-funding
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here is a myth surrounding RNTFs that even reformers, until now, believed – that their services were essentially “free” to taxpayers because the local portion of the federal matching program was paid by asset forfeitures.
What else can Byrne Grant money be spent on?
That’s not true. An analysis of 2002 grant applications from all 45 task forces showed just over $7 million of a total $17.3 million in local matching funds was covered by forfeited funds, or, in bureaucratic parlance, “program income.” The other $10 million is paid by a variety of local and county governments, with DPS making up the difference in many instances. Moreover, asset forfeitures are likely to decline, not increase, as an income source now that stronger controls are in place and what one officer recently called the “Wild West days”16 of asset forfeiture have largely ended. Governor Perry’s rules establish a new standard for task force seizures: “Unless investigation can establish otherwise, it should be presumed that property found in the possession of any citizen is that citizen’s property.” That requirement will likely cause the contribution of improperly seized assets to RNTFs to decline, and local and state payments to increase in the foreseeable future. (Despite its effect on RNTFs budgets, that rule is a good thing for which the Governor deserves much credit. It should be replicated for all drug enforcement agencies statewide. See Recommendations, p. 12.) New federal legislation by Congressman Henry Hyde (R-IL) will further restrict improper seizures, and cause this program income to decline even further in the short term. So state and local taxpayers share of RNTF funding will increase in the near term. With money needed for homeland security-related infrastructure improvements as outlined by the Interim Homeland Security Task Force, the Byrne grant task forces may be a luxury Texas can no longer afford.
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f Texas were to use Byrne money to finance other law enforcement priorities, what does federal law allow us to do with it?
Texas presently spends the lion’s share of its Byrne Grant money ($27.6 million of $30 million) on 45 regional narcotics task forces.17 But Byrne money can be spent on a variety of other criminal justice programs that might better serve Texas. Texas could18 : 1.
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Combat terrorism, in particular paying for infrastructure improvements advocated in Commissioner Dewhurst’s Homeland Security Task Force recommendations. Governor Perry already diverted $200,000 in Byrne money toward this purpose. Create or expand anti-domestic violence programs, fund efforts to more effectively prosecute sexual assault, or to provide better services for victims. Pay for drug treatment. Texas currently spends only $1.6 million annually from Byrne funds on drug treatment programs in five Texas cities. This number should be increased. Launch initiatives aimed at lowering violent crime. Pay for programs to reduce the availability of illegal firearms. Finance Community Justice Centers (CJCs) modeled on Byrne funded centers in New York. CJCs “place the court at the center of the community it serves in order to adjudicate quickly and respond constructively to crimes occurring in that community. The focus of the court’s activities is primarily on “quality of life” offenses which contribute to the fear of crime and community. The centers also have a mission to
ACLU of Texas * Too Far Off Task * December 2002
Texas would save $199 million in incarceration and probation costs by abolishing task forces this biennium. Next biennium savings would exceed $372 million.
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prevent crime and generally assist the community by providing a one-stop location for social services and other community needs.” Implement “Corrections Options” for “youthful offenders”: includes “community based incarceration, weekend incarceration, boot camps, transitional programs, aftercare services, day reporting, structured fines, electronic monitoring, and intensive probation.”
Any one of these strategies would be preferable to spending more money on a bureaucratic drug enforcement model that’s proven vulnerable to corruption and ineffective at ending drug trafficking over the long haul.
Racial profiling in undercover drug stings
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rom an ACLU review of the 45 task force applications, it’s clear that all or nearly all task forces are engaged in small-time “buy-busts” which generate most of the high arrest numbers.19 The 45 task forces take credit for about 12,000 arrests over a one-year period, or about 22 arrests per task force per month, at an average cost of about $3,750 per bust. On the other hand, these figures don’t include undercover buybusts by individual police or Sheriff’s departments, like the ones in Dallas in which at least 86 Latinos were framed in “stings” where fake drugs were planted on the defendants. In that case, it turned out half the cocaine and one-quarter of all the methamphetamines seized in Dallas County in 2001 were fake drugs – pool chalk ground up and packaged to look like drugs. In too many of these incidents, poor minority communities are targeted for large scale assaults netting at most small time drug users and sellers. In Tulia and Hearne, black communities were targeted. In Dallas non-English speaking Mexican immigrants were the victims.
ACLU of Texas * Too Far Off Task * December 2002
There’s good reason to believe that drug crimes are pursued by RNTFs systematically along racial lines. According to the 2000 census, for example, Chambers County’s population is nine percent black. But from 1995-1999, 60.2% of suspects in Chambers County Narcotics Task Force cases were against black people.20 This outcome is typical, not anomalous. By targeting minority communities, even though studies show white people use and sell drugs at about the same rates as minorities do,21 RNTFs contribute to the destruction of whole neighborhoods, the abandonment of children to foster care or worse, and the disproportionate dis-enfranchisement of minority voters. Statewide, blacks make up only 12 percent of Texas’ population, but constitute 70 percent of all drug offenders admitted to state prison.22 When one considers the question of the dissolution of the black family and the absence of black fathers from their children’s lives, surely that statistic has played a part in achieving that unhappy result. Many of the “missing” black fathers and mothers are merely serving time in Texas penitentiaries for the petty peddling of intoxicants. Not just the parent but their children pay the penalty. Texas has more inmates in its prisons than California, which has 62 percent more population than we do.23 That’s mainly because tens of thousands of Texans are serving time for small-time, non-violent drug crimes. If Tulia, Hearne, Floresville, and other cases are indicative, some of these people are actually innocent. Task forces help fill our prisons with expensive, non-violent drug offenders, adding to the state’s $5 billion budget problem and to the break-up of thousands of families across the state.
For more information see our website at www.aclutx.org 9
traffic interdiction efforts.) Instead, task forces typically combed through poor minority communities asking on the street to buy drugs, frequently creating crime where it wouldn’t otherwise exist. At most, when they are functioning 100 percent as they are supposed to, most task forces focus on nonviolent, small-time dealers and users who would not even be jailed in many other states.
Part 2: Solutions
Want to save $199 million?
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utting non-violent petty drug offenders in prison does not limit drug availability or demand, and costs too much money. Texas legislators have been warned they face a $7 to $12 billion budget shortfall this biennium, at a time when pressure for new spending on homeland security, education for schoolchildren, healthcare and other priorities will be great. In this context, RNTFs cost too much for too little benefit. Making several fairly conservative assumptions,24 ACLU calculates Texas could save $199 million this biennium in incarceration and probation costs by abolishing the task forces. The following biennium would see the full savings impact. Texas would save more than $372 million, or a little more than $15 million per month Texas could earn these savings by avoiding unnecessary costs from incarcerating non-violent drug offenders who would not even be incarcerated in many other states. An additional $60 million in federal funds could be transferred to new priorities, perhaps even freeing up resources in the general fund. Currently, funding for task forces amounts to about $89 million per biennium — roughly $55 million in federal grant money coupled with at least $20 million in state and local matching funds and up to $14 million in seized assets.25 By abolishing RNTFs, legislators could save money on incarceration costs without risking that dangerous criminals won’t be apprehended. Task forces claim about 12,000 annual arrests, collectively.26 Virtually none of these low-level buybusts tracked drugs “up the ladder” to larger suppliers. (Most large busts described in RNTF applications occurred during
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It’s been said America is now engaged in a War on Terrorism. But Texas law enforcement was already deeply enmeshed in largely failed War on Drugs. During this budget cycle, Texas legislators may have to decide whether Texas can pay for wars on two fronts, as well as whether those wars should infringe on personal liberties. If the answer to either question is ‘no,’ then eliminating RNTFs will limit the Drug War’s drain on taxpayers without setting free dangerous or violent criminals.
Find better outcome measures
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CLU believes Texas should abolish its RNTFs. But barring that, Texas should no longer use arrests and forfeitures as outcome measures by which their success is judged. Instead evaluators should focus on outcomes that indicate solutions to drug problems: individuals who received treatment as a result of the task force, number of people who finished treatment, number who recidivated, who were supplied access to transition services, number who found jobs, etc. Outcome measures that documented followup services provided to Drug War orphans – i.e., children with one or both parents incarcerated, deceased or absent because of drugs – would benefit thousands of children. ACLU believes their bloated non-self funding budgets and discriminatory outcomes merit the Task Forces’ outright
ACLU of Texas * Too Far Off Task * December 2002
Analysis of new DPS task force rules
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any of the new rules for Regional Narcotics Task Forces are dramatic improve ments over prior practices. Though ACLU of Texas has suggestions to improve them, Governor Perry and DPS deserve a great deal of credit for their effort to rein in the worst RNTF abuses. Among the highlights, the rules: · ·
abolition. But if the Legislature chooses not to abolish them, or divert their funding to something more useful, at a minimum the state should require better reporting to monitor racial disparities in drug enforcement. Governor Perry has gone a long way by requiring in DPS’ new rules that Task Force highway interdiction programs report the same racial profiling data as other agencies. Either the Legislature or the Governor’s office should take the next step, and require Task Forces to report racial breakdowns for all their arrests and searches — on the highway and off.
Prevent officer misconduct
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· · · · · · · · · ·
Placed DPS organizationally in command of RNTFs, with 11 new captains positions directly supervising task force activities Created new pro-property rights standard for asset forfeiture. Task force officers must presume property belongs to an individual unless an investigation has proven it represents drug proceeds. Banned receiving fees for professional referrals to bail bondsmen, etc. Required background checks on all Task Force officers. Banned wearing masks and covering badge numbers during raids. Required dope be kept at DPS, not on site in Task Force offices. Encouraged but did not require audio and video of undercover operations. Required use of “deconfliction” centers to avoid competing operations targeting the same drug operations or each other. Required probable cause for highway stops Required RNTFs comply with racial profiling law for highway stops Encouraged but don’t require video or written consent for searches. Created new procedures for undercover operations and use of CIs.
These new measures represent an important step in the post-Tulia effort to rein in task force excesses. Several, such as the new Perry Standard for asset forfeiture and the requirement that task forces collect racial profiling data, should be replicated for other drug enforcement units statewide, whether they’re organized as task forces or in local departments. Moreover, DPS is a far more competent agency than any of the task forces, and their new supervisory role is much welcomed. But in the big picture, these rules amount to closing the barn door after the horses have run off – task force bureaucracies are too deeply entrenched in 15 years of bad practices and lackadaisical on-the-ground oversight for their 700+ officers to change very quickly. In fact, when the Governor’s new rules were published, some task forces openly expressed hostility to change, or even closed down rather than operate under them
iven the shady nature of undercover operations and the constant pressure to boost “numbers” for these task forces, not to mention the scores of cases in Tulia, Such behavior, combined with the breadth of scandal and depth of waste inherent in their operations, justify the task forces’ abolition, even if ACLU supports the direction of ongoing Dallas, Houston, Floresville, San reforms. Antonio and elsewhere dismissed because of problems with officer credibility or availability, it’s more For example, the Metro Narcotics Intelligence and Coordinanecessary than ever to extend the tion Unit, a Byrne task force in and around Tarrant County, corroborating evidence requirement in drug stings to any established its own “Home Land/Anti-terrorism Intelligence person testifying under the color of law enforcement, includOfficer.” The Tactical Narcotics Team in Sulphur Springs ing police officers, not just confidential informants. intends to “develop and implement anti-terrorism training to train other law enforcement agencies in the impact area.”
Prevent ‘mission creep’
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CLU advocates abolishing RNTFs and perhaps spending some of the Byrne grant funding on home land security measures as identified by Texas’ Homeland Security Task Force appointed by Governor Perry. But several Task Force applications stated they intended to engage in local homeland security functions on their own, as they are presently constituted. We believe that, given their nonaccountable nature and recent scandal-ridden history, that would be a bad idea.
ACLU of Texas * Too Far Off Task * December 2002
ACLU views these as cases of “mission creep” -- of big government bureaucracies searching for new purposes to justify their existence. The Tactical Narcotics Team based in Sulphur Springs announced in its application, “If this project gains any intelligence on any suspected terrorist or terrorist groups, it will be both overtly and covertly investigated and any intelligence obtained on any suspected terrorist or terrorist group will be passed on to the FBI.” So this bunch plans to identify terrorists, investigate the suspects themselves, then pass on the information to the FBI! Imagine some Tom
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Coleman figure in Deep East Texas in that scenario, and you’ll realize the danger posed by using these particular officers as ad hoc self-proclaimed anti-terrorism personnel. Lt. Governor David Dewhurst and his Homeland Security Task Force spent months identifying Texas’ strategies for responding to Homeland Security threats, and none of them included asking Regional Narcotics Task Forces to participate. They should be discouraged from doing so in any formal way beyond the vigilance expected of any peace officer, and leave fighting terrorism to the appropriate authorities.
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Other examples of mission creep crop up throughout the RNTF grant applications, some of which may not fit within the national Byrne-funding guidelines. Galveston’s RNTF said its activities included solicitation of “prostitution, and reverse prostitution stings.” The Central South Texas NTF noted that it “has not limited itself to the enforcement of drug laws.” And the Agri-Plex Roadrunner NTF sees itself providing supplemental security for President Bush’s ranch in Crawford. One hopes they’ve informed the US Secret Service of that selfstyled mission.
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including not just CIs but licensed officers, to obtain a conviction under Texas’ controlled substances act. Change outcome measures for Task Forces and other drug enforcement efforts to measure things that indicate positive outcomes for drug abusers, arrestees, and their families, not just arrests and forfeitures. Anticipate lower contributions from asset forfeiture and greater taxpayer contributions to RNTFs in the near future. Make Governor Perry’s “presumption of ownership” standard apply to all Texas asset forfeiture cases. Small, undercover “buy bust” strategies generally should be avoided as anathema to privacy rights and constitutional limits on government. Under the best circumstances they border on entrapment. In the worst cases we find Tulia, Hearne, Floresville and the Dallas “sheetrock” scandal. Avoid mission creep where RNTFs attempt to shift their duties from the Drug War to the War on Terrorism. Instead, use Byrne money freed up by task force abolition to fund priorities identified by Texas’ interim Homeland Security Task Force.
DPS Rules for Task Forces
Recommendations
A
CLU of Texas views RNTFs as lumbering, ineffective bureaucracies, that have outlived their usefulness. Even under the best circumstances, when officers are not corrupt or using bad informants, tactics used over the last 15 years have demonstrated racially biased outcomes with no reduction in drug availability or use to show for it. ACLU makes the following recommendations in light of these findings. 1.
2.
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Abolish RNTFs and use Byrne Grant money on more constructive, less expensive pursuits. This would save $199 million in incarceration costs, and frees up $60 million in federal Byrne grant money for drug treatment, alternative sentencing options for juveniles, anti-domestic violence programs or antiterrorism work as outlined in the Texas Homeland Security Task Force recommendations. Require corroboration for testimony by any person acting covertly under the color of law enforcement,
For the most part, we agree with the direction of the DPS rules, and are gratified the Governor saw fit to enact them. But we believe they should be improved in the following ways: 1.
2. 3. 4.
RNTF officer background checks should review past termination notices at the Texas Commission on Law Enforcement Officer Standards and Education, made public by a bill from authored by Rep. Hinojosa and Sen. Van de Putte in 2001, not just current “status.” Corroboration of undercover buy busts should be required, not “encouraged.” Consent for searches should be written or videotaped, not oral without corroboration. Require reporting of racial categories of suspects in arrest and forfeiture data, not just traffic stops.
Where Texans have turned to defend the Bill of Rights since 1936 ACLU of Texas * Too Far Off Task * December 2002
Too Far Off Task Endnotes 1
See Herbert, Bob, The New York Times, editorial page, 7-29-02, 81-02, 8-5-02, 8-8-02, 8-12-02, and 8-22-02. For a good overview describing the breadth and scope of recent task force scandals, see McVicker, Steve and Carman, Tim “Drug Crazed,” Dallas Observer, 9-6-01, on the web at http://www.mapinc.org/drugnews/v01/n1640/ a11.html. 2 Milloy, Ross, “Arrests by a drug task force in Texas come under fire,” The New York Times, 4-4-01. 3 Murphy, Brian, “Narcotics Agent Indicted,” Wilson County News, 919-01. Hunger, Kate, “Ex drug cop gets probation for fabricating evidence,” San Antonio Express News, 10-17-02. 4 Croteau, Roger, “Jail guard among four drug suspects,” San Antonio Express News, 10-2-02. 5 For Captial Area TF incidents, see Taylor, Trish, “Putting local task forces under DPS gets mixed reviews,” Austin American Statesman, February 4, 2002. This isn’t the only “accidental” killing by task force officers. In 1999 Hays County RNTF officers shot and killed unarmed 25-year old Rusty Windle. Eleven of 14 otherslater had charges dropped because of unreliable, uncorroborated testimony from a single, unreliable confidential informant, who himself peddled pills and pot to local high school students. Evans, Murlin, “Drug Task Force Questions Remain,” San Marcos Daily Record, October 28, 2000. URL as of 9-3-02: http://www.mapinc.org/ drugnews/v00/n1632/a07.html 6 Associated Press, “Audit says state agency failed in tracking grants,” 8-23-02. 7 Associated Press, “Chief of governor’s narcotics program reassigned,” June 10, 2001. 8 Blakeslee, Nate, “The Law West of the Pecos,” The Texas Observer, 12-10-99. 9 “Grand Jury Indicts Balcones Officer,” San Antonio Express News, 3-7-01. Eleven other San Antonio officers unrelated to the task force were indicted for smuggling what they thought were drugs in an undercover “sting” run against them by the SAPD under departed chief Al Phillipus. See Hunger, Kate, “DA dumps 33 cases because of cops’ busts,” San Antonio Express News, 4-7-01. 10 Razuk, Mary Ann, “Investigation begins into Ellis County narcotics officer’s death,” WFAA-TV, 6-7-02. 11 O’Connell, Bill, “Seguin Officer Indicted,” Seguin Gazette Enterprise, 10-8-02. 12 MacCormack, Zeke, “Ex-snitch accuses task force,” San Antonio Express News, 5-12-02. After the first bust as a CI, the woman refused to go through with more and prosecutors pressed forward with her case. These tactics are typical. While in some cases, as in Hearne, prosecutors gave CIs a list of people to target, in most
ACLU of Texas * Too Far Off Task * December 2002
instances CIs or undercover peace officers claim to have performed their duties mostly by asking around how to buy drugs either on the street, on the job, or undercover in more or less social settings. The problem here is that someone who consents to help a personthey think is their friend purchase illegal substances may not themselves be a dealer but may only know a dealer, perhaps doing a favor or in anticipation of some small finders fee in money or drugs. That’s why, even if one believes someone in that role should be held accountable for their actions, busting such people does nothing to “get the drugs off the street.” Thus many mere users are inevitably included in such undercover “stings,” boosting task force numbers but not really solving their jurisdiction’s drug-related problems. 13 Becka, Holly, and Wyatt, Tim, “Informant process derails five cases,” Dallas Morning News, 1-13-02. Bensman, Todd, “Informant admits lying at trial,” Dallas Morning News, 10-14-02 14 The 180 dismissed undercover narcotics cases from 2001 were as follows: 81st Judicial District Task Force in Wilson County: 14. Denton/Collin County Task Force: 12 (including Michael Irvin). Dallas PD sheetrock scandal: at least 86 (included because officers faked field tests of drugs). San Antonio PD’s cops busted in sting running fake drugs: 33 cases. SAPD testilying scandal (officer caught perjuring self on stand): 2. Alamo Task Force chief (busted for stealing drugs) : 3. DPS undercover narc Johnnie Davis (busted for stealing from drug dealers): 20. Brownwood task force agent died in mid-investigation: 10. 15 E.g., “in Texas, San Antonio experienced an increase in the young and female users of heroin, and Austin found increased use by the middle and upper class Caucasian population. This group currently comprises 25% of the heroin-using population in Austin, where 5 years ago only one in ten users was younger than 25. Source: US Office of National Drug Control Policy, “Pulse Check: National Trends in Drug Abuse,” Winter 1998. On the web 11-23-02 at http:// www.whitehousedrugpolicy.gov/publications/drugfact/pulsechk/ winter98/trend1.html.” 16 Wooldridge, Howard, “Viewpoint,” Lansing State Journal, 8-1402. 17 Press release, Office of Governor Rick Perry, “Governor Perry announces $30 million in Grants for Regional Drug Control Efforts,” March 11, 2002. 18 Byrne Formula Grant Program Guidance and Application Kit, Chapter 1, on the web at http://www.ojp.usdoj.gov/BJA/html/ ByrneFormula.htm on August 22,2002. This document lists 25 Byrne spending opportunities in addition to task forces. 19 The Central South Texas NTF, for example, declared in its 2002 grant application that “Our project will target street level drug dealers, individuals involved in the setting up and operating of drug labs in rural areas, as well as individuals who regularly import narcotics into our impact area.” A Paris-based NTF described a three pronged approach: open investigations, use of confidentail informants to provide information and make purchases, and highway interdic-
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tion. With the exception of cases of “mission creep,” where task forces are assuming authority to pursue issues from homeland security to prostitution, these statements of TF activities are typical. 20 Blakeslee, Nate, “The Numbers Game,” The Texas Observer, 8-1701, p. 11. These numbers are slightly worse than the still-racially slanted numbers accumulated by the Chambers County Sheriff. The Baytown Sun reported recently that the Sheriff’s department made a total of 1,507 arrests in 2001; of those, 1,064 were white and 443 (29.4 percent) were black. But blacks outnumbered whites in drug violations, where they made up 121 of 240 arrests last year. Drug busts were the only category of arrests where blacks constituted a majority in the county. (Cook, Matthew, The Baytown Sun, “Some hope indictments bring change,” July 21, 2002.) 21 See, e.g., US Dept. of Justice National Institute of Justice, US Office of National Drug Policy, “Crack, Powder Cocaine and Heroin: Drug Purchase and Use Patterns in Six Cities,” December 1997, pp. 1, 16, and table p. 15. 22 National Corrections Reporting Program, 2001. 23 Bureau of Justice Bulletin, “Prisoners in 2001,” As of 9-3-02 the URL was http://www.ojp.usdoj.gov/bjs/pub/pdf/p01.pdf 24 Of those arrested, estimates assume 50% go to prison and 50% are released on probation. Cost estimates for 2000 were as follows: Adult incarceration $40.65, adult probation $2.85 (source: Criminal Justice Policy Council). Also assumes average length of incarceration for drug crimes is 22 months (source: TX CJPC) 25 Extrapolating from 2002 Byrne Grant funding, detailed in Press release, Office of Governor Rick Perry, “Governor Perry announces $30 million in Grants for Regional Drug Control Efforts,” March 11, 2002. An estimated $14 million of RNTF matching funds per biennium comes from “program income,” or seized assets. 26 Reporting in the applications was extremely inconsistent, and the “about 12,000” estimate came from totaling the annual estimates for each task force for the calendar year closest to 2000 for which data was available. But this is an apples to oranges comparison so far as dates go. In addition, four task forces did not provide usable annual arrest numbers. The total without them came to 11,600, hence “about 12,000” for the total. The estimate does not include arrests where RNTFs “assisted.”
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ACLU of Texas * Too Far Off Task * December 2002
“I think every American has a right to look to law enforcement officials to protect their rights. And in those instances, regardless of how rare they might be where a law enforcement institution instead of protecting rights, violates rights, you have a compound fracture. You disrupt the trust, but you inflict an injury at the same time. And I think that’s why you have a lose-lose situation in that circumstance. You lose the potential for the underlying trust that should support the administration of justice as a societal objective, not just as a law enforcement objective, because frankly, law enforcement is too important a role in the culture to leave to professionals alone. We’ll only have good law enforcement in the country to the extent that the people participate. As soon as you start to peel off groups of people and say ‘We’re not going to participate with law enforcement, we don’t trust it,’ we erode the fabric of justice that’s necessary to sustain a free culture.”
US Attorney General John Ashcroft, March 1, 2001
Where Texans have turned to defend the Bill of Rights since 1936
