A Dirty Sweep

ACLU Says Federal Grant Funds War on Minorities in Texas

When the cops showed up at the Chelsea Street Pub and Grill looking for Regina Kelly, she thought it was about parking tickets. Kelly, the first black waitress to work at the eatery in Hearne, Texas, had a hunch her shift was about to end early. "I told my boss I'm fixing to go to jail for some tickets," says Kelly. "My manager tried to write them a check, but they wouldn't take it." Even after Kelly was hauled in front of a judge hours later, she couldn't believe she'd been picked up for pushing something more than an illegal parking tab. "They said I had a bond of $70,000 for delivering a controlled substance," says Kelly. "I said, 'No, it's just tickets.' "

In the end, Kelly proved to be right. It was just tickets, though it took the Robertson County district attorney several months, from October 2000 to the following spring, to admit as much. In a case severely lacking evidence, the indictment listed Kelly's first name as Jennifer. The secret audiotape allegedly incriminating her did not have a single female voice on it. Her prosecution rested on the uncorroborated word of Derrick Megress, a covert police informant.

Still, Kelly stayed in jail for three and a half weeks before the judge lowered the bail to $10,000. Kelly's mother put up her land and $1000 and got her out. Along with 27 others arrested on the word of Megress, Kelly was later cleared—at least technically. "We have a heavy burden, to prove beyond a reasonable doubt, which is a good burden for the state," D.A. John Paschall told the Texas Lawyer. "[The charges] weren't dismissed because I felt they were innocent. I think they were guilty. I dismissed them because I felt that was the right thing to do."

According to a report to be issued December 17 by the Texas ACLU, the right thing to do now is dismiss the authorities who pursued Kelly's arrest. The sting in Hearne, which snared 15 percent of the black males in the tiny town of 5000, was conducted by the state's narcotics task force, a branch of the Department of Public Safety. Like similar operations across the country, the Texas force was paid for through the $450 million Edward Byrne Memorial Fund, doled out by the U.S. Department of Justice. A state can use its allotment—for Texas, that came to about $30 million—to back a host of crime-fighting measures. But its principal application in many states has been to raise a specialized army of policemen who can turn Mayberry into Copland.

Byrne grant recipients suffer precious little federal intervention. All they need to do is demonstrate a healthy arrest rate. In Texas, the task forces have been touted as another weapon in the war on drugs. But that weapon is starting to backfire, resulting in the mass arrest of innocent people and persistent allegations of racial profiling.

If not for the lives ruined, the mishaps committed by task forces in Texas, as documented by the ACLU, would make for high comedy. Consider a few choice selections:

In Floresville, Texas, prosecutors had to dismiss charges against a suspected drug dealer after a task force officer and three cohorts pilfered some 70 pounds of cocaine. The officers have since been indicted. The cocaine is still missing.

In Lampassas, Texas, a former task force commander was fired after he was accused of sexual harassment in the course of a narcotics investigation, not to mention helping himself to $11,000 in cash and property from the task force offices.

During a pre-dawn raid in Wimberly, Texas, members of the Hays County narcotics task force killed suspect Rusty Windle. Eleven of 14 people accused in the case had charges dropped, after it was alleged the informant had moonlighted selling drugs to kids.

In Spicewood, Texas, a woman sued the Capital Area task force after officers raided her home. The operation was based on surveillance footage of ragweed on her property that officers mistook for marijuana.

In the infamous case of Tulia, Texas, a task force arrested 46 men and women (all but three were black) solely on the word of Tom Coleman—a freelancing informant who'd been dismissed by the police department in Cochran County. "Mr. Coleman should not be in law enforcement if he is going to do people the way he did in this town," the sheriff there once complained to the Texas Commission on Law Enforcement.

In San Antonio, the head of the Alamo Area Narcotics Task Force was convicted of pocketing drugs from the evidence locker.

The ACLU report argues that in a process called "buy-busts," crimes are quite literally created by the cops. "In Kerrville a task force roped in a pretty young blonde woman in a small possession bust," the study reads. "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."

But more than simply becoming a source of cringe-worthy police work, the Texas task forces have been accused several times of visiting their questionable tactics exclusively on minority communities. Barbara Markham has spent almost two decades working in law enforcement, part of it with task forces. Shortly after joining one in Rockwall, Texas, she noted a disturbing trend. "They were only going after blacks," Markham told The Houston Press. "If you were white you didn't have to worry much about task forces, because they were going after crack. But it doesn't take any skill to make a crack bust. All you have to do is drive up and roll down your window. It's like shooting fish in a barrel. But the drug problems in these various communities do not just involve black people, and it's not just crack."

Crack busts may be easy, but they don't come cheap. While federal grant money funds the badges, the cost of incarceration is passed on to the taxpayer. The ACLU estimates that Texas would save $199 million over two years by abolishing the task forces. In a state currently grappling with an estimated budget deficit as large as $12 billion, the ACLU's appeals for less intrusive government may draw some converts. "We can't afford this approach anymore," says Will Harrell, executive director of the ACLU of Texas. "I think a lot of [legislators] will be rethinking their policies."

The press office for Texas governor Rick Perry did not respond to questions about drug policing. But even if the state did abolish its narcotics task forces, some believe that would only start to solve the problem. Vanita Gupta, an assistant counsel for the NAACP Legal Defense Fund who has spent much of her time working on the Tulia case, says the complaints aren't limited to Texas. "Tulia represents the tip of the iceberg," she says. "It's a national problem. Since the Legal Defense Fund got involved, we've had calls from different rural communities, mostly in the South. But it's not just the South. It's small towns everywhere where there is a rigged system and poor people of color."

No one knows for sure how many more Tulias already have happened. Activists simply don't have the resources to investigate every state receiving Byrne money, and their cause isn't getting any easier. In a nation preoccupied by the war on terror, they're working to help less sympathetic victims—those people harmed by the war on drugs, waged in the hinterlands of justice.

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