Border War

DEL RIO-

Ask any narcotics agent in Texas about the anatomy of the drug trade and he’ll tell you to start from the heart, Mexico, and follow the drugs as they flow like blood through the arteries of the state highway system: north up I-35 to Dallas and Kansas City and Chicago, west along I-10 to Los Angeles, or east to Houston, New Orleans, and the east coast. But reverse your direction and follow instead the anatomy of the drug war, in which the heart is Washington, D.C. and the blood is not dope but federal funding-cold hard cash with no strings attached for interdiction, for education, for cops, cops, and more cops-and the flow will lead you back to Texas, back to the Mexican border. One of the biggest veins of all leads straight from D.C. to this once-sleepy border town at the very end of U.S. 277. Welcome to Del Rio, the law enforcement capital of Texas.

Coming in from the north, you’ll pass a United States Border Patrol checkpoint about five miles out. It’s a steel prefab building with a couple of vans, a dog, and a camera pointing south. It may or may not be open for business when you drive by: In either case it’s the tip of the iceberg. In 1996, there were about 400 agents based in Del Rio. Today there are almost 900. Continue into town and the familiar green and white sedans become more common. Many are headed to the new patrol station on U.S. 90, built in 1999. But the high command of the drug war here is the just-opened 50,000-square-foot sector headquarters, which, when fully completed, will cover twice that area, at a total cost of $18 million. It is the first sector headquarters in the nation built with future expansion in mind. The Border Patrol is just one of six federal law enforcement agencies that operate in this town of 40,000, where roughly one in five adults works for the federal government. Less visible, but unmistakably present, are the Drug Enforcement Administration, the U.S. Customs Service, the FBI, the Bureau of Alcohol, Tobacco and Firearms, and the U.S. Marshals Service. Add to that the Val Verde County Sheriff’s office, the Department of Public Safety, and the Del Rio Police Department, which combine in various permutations with the federal agencies to form two drug task forces, the 63rd Judicial District Narcotics Task Force and the High Intensity Drug Trafficking task force. The business of Del Rio is drug enforcement, and business is good. Yet the ratcheting up of drug enforcement has had unintended consequences, not the least of which is one of the most crowded federal dockets in the country. And Del Rio’s peculiar boom has also meant a state district attorney’s office swamped with the overflow of cases made by federal agents, and a county-one of the poorest in the nation-struggling to deal with the hidden costs of an economy now driven by the U.S. Department of Justice.

So much marijuana passes through this rugged, near-desert country that the banks of the river are literally strewn with hidden caches of dope, waiting to be picked up by someone on the Texas side. From the Friday before MLK day to the following Tuesday, agents working the border between Del Rio and Eagle Pass “seized” more than 1,700 pounds of marijuana simply by hacking their way through the backcountry along the river, pulling the 30-pound burlap feed sacks out of the brush and tossing them into their Suburbans. Many more seizures stem from busts of couriers, or “mules,” on the bridge that connects Del Rio to Ciudad Acu-a, or along the backroads of Val Verde County. As the number of agents has increased, so has the number of busts, and the need for more federal prosecutors. About five years ago, Del Rio got a brand new federal courthouse, staffed by a U.S. Attorney, six assistant U.S. Attorneys, and seven Federal Public Defenders. A second federal courthouse is on the drawing board.

The problem is, the feds only prosecute the big cases; the small ones they send over to the state district attorney for prosecution in state court. Federal prosecutors also have a tendency to cherry-pick the best cases, for example those involving large asset forfeitures, and leave those with potential problems, like bad searches or suspect evidence, for the state prosecutors to sort out. This common arrangement, for which the DA and the state court receive no compensation, did not present an undue burden on the state system until Congress passed a massive immigration reform law in 1996, which doubled the number of border patrol agents nationwide and produced a drastic increase in the number of federal cases made on the border-and dumped into state court. When that got to be upwards of 50 cases per year in Del Rio-where the DA’s office has just one assistant DA and one investigator-former Del Rio DA Tom Lee said enough is enough. Three years ago, Lee (who last November was elected to a district judgeship after 22 years as Del Rio’s DA) joined a handful of border prosecutors in protesting the arrangement. Lanky and thin, Lee smiles often for a former prosecutor and speaks frankly for a politician. He talks about drug enforcement with the authority and objectivity of someone whose career as an elected official predates Reagan’s War on Drugs, and who has seen Del Rio grow from a ranching community to what he calls “pound for pound… the most enforced area in the state of Texas.”

“Our argument was, why are you putting the burden of the national drug war on our backs?” he says. Most of the drugs, after all, are bound for points far removed from Del Rio. “Your people [federal arrestees] go into our jails, they take our court-appointed lawyers, you’re eating up the time of our local prosecutors and local courts,” he says. Lee estimated it was costing the county and the district attorney’s office between $3,000 and $5,000 per case. The entire annual budget for the DA’s office is under $200,000. Lee and his fellow border prosecutors had made public a well-kept secret: The Clinton Administration, like earlier administrations, drastically understated the true cost of prosecuting the drug war, both to Congress and to the public, while sloughing off a sizable chunk of the expense onto some of the poorest counties in America.

After being approached by District Attorney Jaime Esparza of El Paso, Lee began participating in discussions with other border DAs who found that they, too, were being overwhelmed by the level of federal enforcement activity. They also discovered something else: They could just say no. District Attorney Joe Rubio in Laredo was the first to announce, in 1998, that he would no longer be prosecuting federal cases. After Lee, Esparza, and others threatened to do the same, the U.S. Attorney overseeing the Western District of the U.S., Bill Blagg, came to the table. “Our position was simple: Either pay us a fee for taking the cases, or hire more people in your office to do it,” Lee says. Although Blagg and the local federal attorneys were sympathetic, Lee says he quickly discovered that the decision makers at the top in Washington did not speak the same language. “They called one guy in our group one day from Washington and said ‘We want your analyst to tell us how much you spent [on federal cases] last year,'” Lee scoffed. “He said, ‘Analyst! I don’t need an analyst-I need a plumber… my pipes are leaking into my office here!'”

“What they’ve never understood is that they’re not in charge,” Lee says. “They want to talk about it, but where’s their negotiating position? They’re either going to do it [foot the bill] or we’re going to stop.” Although Lee may seem an unlikely candidate to take on the Department of Justice, few public officials are as insulated as a Texas district attorney, who is part of no larger body and is answerable to no higher authority, including the state attorney general. “You kind of have 95 little fiefdoms around the state,” as Lee put it. Still there were political considerations for Lee, like any other elected official. “What’s gonna happen if tomorrow morning you decide to stop making cases and half the population of Del Rio is federal law enforcement people?” he muses. And there are other considerations when thumbing your nose at the federal government. Laredo DA Joe Rubio’s announcement that he would no longer take federal cases was followed closely by a federal investigation of his office, which resulted in the indictment of his brother, his father, and several of Rubio’s assistants and investigators on corruption charges. While Lee doesn’t question the legitimacy of the charges, he does question the timing and motivation of the investigation. “We’re not going to say that there wasn’t something that needed to be investigated down there and of course we want to make sure that pubic integrity [in law enforcement] is the highest… but they didn’t like Joe Rubio, and they weren’t going to give him much of a break to begin with.”

Lee took his case all the way to Washington, where several border DAs were granted a personal meeting with Janet Reno. He now says he left that meeting feeling they had reached an understanding, only to find in the coming months that no settlement was forthcoming. His esteem for the leaders of the drug war has since waned considerably. Outgoing Drug Czar Barry McCaffrey (whom Lee calls McCafferty) was part of the problem. “His attitude was ‘Look, if we start paying you then we’re going to have to start paying the DA in Chicago… you know, we’re going to have to start paying everybody,'” Lee says. “Our response was, ‘you don’t have to pay us, because we’re going to stop taking them. Problem solved.'”

Tom Lee’s fiefdom pales in comparison to the one built by the federal government in Del Rio. There are 1,800 federal employees in town (not counting Laughlin Air Force Base), making Uncle Sam the biggest employer in a rapidly growing town. The biggest single agency is the border patrol, with roughly 1,000 employees. Even the burgeoning maquila industry in Del Rio accounts for only perhaps 1,000 jobs (at least on this side of the border: Some 35,000 work in maquilas across the river in Acu-a). The Del Rio Sector’s agents cover a vast area (almost 60,000 square miles) yet most of them live in Del Rio itself, which is the only border town of significant size in the sector. If the border patrol pulled out, the ripple effect on the economy would be devastating. Total border patrol wages and benefits in the sector approach $20 million annually. Every year, the agency spends $300,000 on auto parts alone, and $2 million on office supplies, lumber, and other materials. In a town where half the households earn less than $25,000, newly hired border patrol agents earn anywhere from their base salary of $28,000 up to $40,000 with overtime. The median household income in Del Rio has shot up 34 percent since 1990, almost entirely as a result of the influx of federal agents. Every year the Del Rio Chamber of Commerce holds a party to welcome the latest batch of new border patrol recruits. “They’ve had a great impact,” according to Linda Henderson, who manages the Del Rio chamber. More agents means more of everything, from houses to toothbrushes. “These people start off at great salaries: Hospitals, doctors, Wal-Marts, everyone has felt it,” she says. Wackenhut, the private prison firm, took over operation of the county jail (kept well-stocked by federal busts) in January, expanding it from 150 to 750 beds, and adding a couple hundred jobs in the process.

From his office in the federal courthouse, federal public defender Ramon Acosta explained the strange logic of Washington’s investment on the Texas border, pausing briefly to direct a young Hispanic defendant in black jeans and tennis shoes who had bonded out of jail minutes earlier. “Take the bus back up to San Antonio, and call me in a couple of days,” he told him. Acosta conceded that, from a legal perspective, the buildup in interdiction infrastructure without the accompanying increase in funding for courts and prosecutors has created “a legal nightmare.” As a former state prosecutor in New Mexico, he sympathizes with the burden on the local authorities in Del Rio. The federal court is straining as well, with each prosecutor handling 100 to 120 cases at a time, or roughly twice the average caseload in other parts of the country. The federal public defenders, meanwhile, have about 50 cases apiece. (They get some relief from a panel of private attorneys appointed to defend federal cases.)

And despite the crowded docket, there is still no sitting federal judge in Del Rio. A judge will come down from Austin or San Antonio for an actual trial, which occurs in about five percent of cases. The rest of the court’s business, such as pre-trial hearings, and sentencing hearings for the vast majority of defendants who plead guilty, are done by video. Sitting where the judge would be at the front of the courtroom is a monitor with a camera mounted on top. When the defendant comes in, all he can see is the judge’s head on the screen; the judge can see a narrow portion of the courtroom. “They still have all the ceremony… it’s ‘Draw near and give your attention, because the honorable judge so and so is in session,'” Acosta says. “I bring my clients in, some of ’em are illiterate, some don’t even own a TV, and all of the sudden the TV will start talking to them.” At least in federal court defendants will generally receive a speedy trial. Currently, defendants who cannot bond out wait up to six months in jail for a trial date in state court.

Yet the status quo looks fine from Washington. “The walking orders from the Department of Justice are to open up as many cases as you can,” according to Acosta. “The whole thing is stat driven; each agency, including us [federal public defenders], needs to justify itself. And when the U.S. Attorney has good stats, then during appropriations time, they say we’re doing well down there and need more money because stats are increasing.” Thus the cycle continues, and the economy of the drug war gains momentum: More agents means more busts which in turn means more agents. “I don’t think the idea here is to stop [immigration and drug trafficking]; the idea here is an idea that ran amok, but we’re seeing this great economic boom, so they’re going to keep it going,” he says. “It’s a job service. Nobody wants to admit it, but it’s a job service.”

From his cramped office in the county courthouse annex, Fred Hernandez, Tom Lee’s successor, confirmed that, as promised, he stopped accepting federal cases when he took office in early January. (Tom Lee decided to continue taking cases until the end of his term). It’s unclear how the U.S. Attorney in Del Rio will handle the increased caseload in the months to come. In Laredo, where DA Joe Rubio stopped taking cases two years ago, federal prosecutors have compensated by dealing with low-level cases administratively-that is, pursuing a lesser charge, usually possession-so that the defendant will quickly plead guilty and accept probation. Hernandez anticipates that some form of that method will be employed in Del Rio, at least in the short term. That can be good news for defendants, according to Ramon Acosta. At the border, where thousands of pounds of dope flow through undetected every day, a “small” bust can mean 50 pounds of pot. When Acosta served as a state prosecutor in New Mexico, the U.S. Attorneys had an informal policy of “fast-tracking” any amount under 70 pounds of marijuana. That quantity is supposed to carry a mandatory minimum of five years, but prosecutors circumvented that by charging defendants with simple possession, rather than trafficking. Thus while drug task forces in, for example, Central Texas, were pursuing 2- to 20-year sentences for delivery of six ounces of pot, federal agents on the border were letting people caught with trunkloads of dope off with probation. That practice, Acosta pointed out, didn’t actually hurt the stats compiled by the U.S. attorneys there, since they still were credited with cases opened and convictions made.

Today, as the War on Drugs enters its third decade, every border community, from Brownsville to Las Cruces, Tucson, Nogales, Yuma, all the way t
San Diego, is addicted to some degree to the cash flow from D.C. “If all of a sudden the Bush Administration decided we’re going to reduce demand, and instead of paying all these agents, we’re going to put the money into schools, Del Rio would go back to what it was in the beginning, which was this sleepy little Texas town,” says Acosta. Some wouldn’t miss the war. “The town has changed tremendously,” says Eloy Padilla, chair of the county appraisal district and an attorney for Texas Rural Legal Aid. “You can’t go anywhere, even on a small little road, without running into one kind of law officer or another.” According to Padilla, random stops of Del Rio residents were becoming more and more frequent, particularly when the Border Patrol began riding along with the state police. Finally, Acosta said, they stopped the wrong person, a well-connected Anglo attorney, who was so incensed he convened a meeting of the Val Verde Bar Association, who leaned on local authorities to use a little more discretion. Padilla says many of the new border patrol agents are younger and less well-trained, leading to more civil rights abuses.

For his part, although he supports the goals of the drug war, Tom Lee says he wouldn’t miss it if it ended tomorrow. “I’m not sure you’d see the people of the state of Texas be too unhappy that they have to divert those resources to other efforts,” he says. And if Washington suddenly forgot about the border, as it had for so many years before the drug war? “I’m not sure you’d have any people crying over that down here, either.”