Feeling the Heat
Will Harrell and the New Texas ACLU Lay Siege to the Lege
For an organization that limped through the Nineties with virtually no presence at the Legislature, the Texas state office of the American Civil Liberties Union is enjoying something of a progressive lobbying renaissance this session. ACLU-supported legislation is thus far doing well. As of last week, a bill prohibiting racial profiling by police had passed the Senate, and has good prospects in the House. A historic (if somewhat limited) reform of the state's criminal defense system for indigent defendants is also likely to pass. Two bills on rules of evidence in drug cases are a little shakier, but have moved forward. A bill requiring public access to the disciplinary records of police officers is expected to pass, and another one requiring that the testimony of police informants be corroborated by other sources will pass out of Senate committee soon. And two House bills calling for a moratorium on the death penalty -- unlikely to pass, but receiving surprisingly wide support -- will move to a floor debate soon, as will a similar Senate bill.
At this point in the session, you measure success by how far your bills have moved -- or where they've stalled. But thus far the working atmosphere has been surprisingly good, so that even people who would seem to have a robust, natural antipathy to the ACLU have acquired unlikely enthusiasm. "A year ago, I never thought I'd be saying that I like working with the ACLU so closely," says Dripping Springs Republican Rick Green, who sits on the House Criminal Jurisprudence Committee. Ron Delord, a lobbyist for the Combined Law Enforcement Agencies of Texas who helped negotiate provisions of the racial profiling bill, one of the jewels of the ACLU's legislative agenda, admires the ACLU's efforts. "That's a major push to pull that kind of legislation your first session," Delord says. "Normally [the racial profiling bill] would have a ton of opposition. I think that's miraculous in Texas."
What's the logic of the ACLU's success? For one thing, press coverage of the presidential campaign gave many Texans more knowledge of their state's underbelly, and progressives are determined to leverage national attention to reform criminal justice and human services. For another thing, the ACLU hasn't been around much in the last 10 years, and while the absence hasn't necessarily made some people fonder of civil rights crusaders, many are surprised to see that they can still put a dog in the fight. "Even if some of the bills don't get passed this session, they got everybody talking about the death penalty moratorium, people who never would have before," says Keith Hampton, the legislative chair of the Texas Criminal Defense Lawyers' Association (TCDLA).
And then there's the embarrassing recent past that state ACLU officials want to shuck off. As Steve McVicker reported in January in the Houston Press, until last year a series of internal conflicts had laid the state organization so low that some state board members are still reluctant to discuss it. The fights were about autonomy and money. In 1992, new ACLU rules took power away from Houston's more prominent (and better funded) chapter office and gave it to the state office in Austin; then the national office appointed an executive director to the state. Lawsuits and unpaid dues kept the state organization indebted to the national one, until last year, when Houston lawyer Greg Gladden, president of the ACLU's state board, tried to resurrect the organization. Among some recent, positive changes was a new executive director named Will Harrell, a lawyer and activist with some of the most intense international human rights experience that someone of his generation could get: Guatemala during the last four years of the civil war. A 35-year-old native Texan, Harrell is energetic, articulate, and pragmatic. "I feel the heat and I move," Harrell says, describing his intellectual style. "I go with the feeling and figure it out later."
Because Harrell looks like an ex-jock and talks with the clear-eyed passion of a seminarian, one might be tempted to conclude that this ACLU doesn't resemble your parents' ACLU. (During his stay in Guatemala, one newspaper criticized him for "parece mas como roquero que abogado" -- because of his clothes and the ponytail he wears, they thought he looked more like a rock star than a lawyer.) Indeed, this ACLU won't look familiar to anyone who knew it 20 years ago; it looks younger and has committed to legislative solutions -- and enjoys better preparation for the deal-making that goes along with it. And during this session, the organization's agenda has even attracted the support of powerful conservative Republicans.
But as old Lege hands know, it's not over 'til the governor puts down his pen -- and that's where the real test of the new ACLU will begin.
On Wednesday, April 4, Harrell is crouched in the gallery at the front of the Senate chamber, inevitably tieless but suited up in a tan jacket, khakis, and black boots. He's sitting where the union reps often park, because they can make phone calls or get cold drinks out of the office of Sen. Gonzalo Barrientos, located just out the door. It's also where the lobbyists go, not so much to see the senators' faces as to make sure that every time a legislator looks up, he remembers that he's carrying water, and for whom. Today Harrell's surrounded by empty seats -- no lobbyists on this one. Hovering over Lt. Gov. Bill Ratliff's head like a lone bird of conscience, he balances a yellow legal pad on his knee, jotting notes about the debate on the floor -- they're tossing around Senator Royce West's racial profiling bill (SB 1074) before a vote.
'Do the Right Thing'
Of all the bills the ACLU has helped shepherd, this is one of the biggest, and not only because it's the one Harrell cut his teeth on. West, a Dallas Democrat and an African-American, points out in his opening comments that it's an omnibus bill that resembles racial profiling laws in nine other states. It doesn't only define and prohibit racial profiling -- it shouldn't have to, given constitutional protections -- but makes communities discover and deal with racial profiling. It mandates how police should collect data on the race and ethnicity of people they stop; it promises to train rank and file officers and police chiefs; it provides $35 million to put video cameras in every police cruiser, as well as an amendment to allow another level of data collection to occur if this funding isn't available.
In the floor debate, West doesn't have to defend these provisions; instead, he's asked by Laredo Democrat Judith Zaffirini whether the bill captures cross-racial profiling -- say, if a black officer stops a Hispanic driver. She also wonders whether a person would be offended if a police officer asked his or her race or ethnicity. "What would happen to that person if he said, 'I'm an American'?" she asks West. "Nothing," West replies. West also fends off a series of dull questions from Troy Fraser, R-Horseshoe Bay, about the costs of the bill. "Isn't the prudent thing to do to determine the cost prior to voting on it?" he asks. "I think the prudent thing to do," West says, "is pass this bill and let it work its way through the system."
Senate Bill 1074 has already come a long way, and Harrell, who knew that he wanted to attack race-based policing back in August, has been present for much of it. He'd heard news of the situation in Tulia, a small town in the Panhandle, where an anti-drug task force arrested 12% of the town's black population in a sweep to pick up supposed crack dealers; he'd been in touch with attorneys from the national ACLU to see if they wanted to build a lawsuit. At a meeting of the Criminal Justice Reform Coalition, he met Hampton of the TCDLA, who was glad that he wasn't going to be lobbying alone for another session. "Just about put tears in my eyes to have compadres with me up there," Hampton says.
By the time the session started, Harrell had been visiting members and their staffs for months. "When I first started coming around, people were like, 'Who are you? Who is the ACLU? We haven't heard from you in years,'" Harrell says. Hampton directed him to Jana Burleson, Royce West's chief of staff. "Young Will," she calls him. "He's a very likable chap. That's very helpful in this process. It's just easier when you're likable." Burleson should know -- she's been in the Senate for 23 years, and she's served as Harrell's most important mentor, chewing him out after one of his first hearings. Harrell, it seems, had called a senator's intentions disingenuous to the senator's face.
"Will," she told him, "You can't say those things to a senator."
"Aren't we supposed to tell the truth when we testify?" he asked her. Burleson describes him as honestly surprised. "He's a really true, honest guy," she says, "who's trying to do the right thing."
Through Burleson, West helped Harrell negotiate down the language of a draft of SB 1074. "At that point, I was frustrated and disillusioned because I thought they were peddling too light," Harrell says. "But what I learned was, if you don't compromise up front, you'll have to do it later and the clock will probably kill your bill."
To introduce police representatives to the bill, West used a tactic from his civil rights days: Pull together opposing groups representing police chiefs, rank and file officers, and civil rights groups (including the Mexican American Legal Defense and Education Fund, the League of United Latin American Citizens, and the NAACP) to hammer out final language. Before they began, West gave a short speech: I'm going to get a law. So before we begin, if there's anyone in the room who believes that racial profiling doesn't happen, or if it isn't a problem, you should leave right now. The message: Either you're with us or you're not. "No one moved," Harrell says.
As Lubbock Republican Robert Duncan noted during the floor debate, the bill had to include language that demonstrates it's not intended to create new opportunities for lawsuits. Fearing that cities would be exposed to litigation (and bankruptcy), the Republican caucus threatened to kill the bill that emerged from West's negotiations. To them, the ACLU's presence at the bargaining table was a further sign that cities would end up in court. To allay their fears, in a burst of negotiations the bill was amended so that reported data would not be prima facie evidence of racial profiling; to prove racial profiling, a plaintiff would need other evidence.
"That's it right here," Harrell says as Duncan commented on the amendment. "That was almost what killed this bill." If we didn't have the bill, he says, the ACLU would litigate, but a bill is more effective: Where litigation is a blunt instrument, legislation creates political will and reflects cultural norms. Harrell is satisfied when the bill passes, 28-2.
Keep your friends close, your enemies closer, as the old saw goes. That's how you should work when the Legislature's in session, if you want to get your bills passed. Police reps like the Combined Law Enforcement Agencies of Texas (C.L.E.A.T.) didn't want police officers accused of racial profiling to be vulnerable to criminal prosecution. "During the debate," says C.L.E.A.T. lobbyist Ron Delord, "we were able to get them to tone down what they were trying to do." But they all compromised, says Harrell. "He's been a very smart adversary," says Delord. "We don't agree on every issue but I've found him to be -- he's a professional. I think what you've got with him is someone who has gotten the ACLU involved in issues and increased their profile. He's probably turned them around from no name ID to name ID in the state of Texas."
Harrell has received praise from conservative legislators as well. "Of all the people I would normally disagree with on most issues, Will Harrell's the one that's the easiest to work with and who I enjoyed the most," Rick Green says. "He doesn't label me and I don't label him, we just try to find some common ground. There was one day, he testified for two or three bills that I supported too. I told him if he keeps bringing such good legislation to us, I'm going to join the ACLU." He pauses. "I was joking."
If the work of one activist leader can be so crucial to finding legislative solutions, how long can he or she remain effective, particularly when subject to the same withering pressure that's co-opted other advocacy groups? It's possible that Will Harrell, a resurrected state ACLU, and the Bush-Campaign Hypothesis don't really matter. Yet another hypothesis -- we might call it The "Nitty-Gritty Triangulation Hypothesis" -- posits that legislators like to have somebody oppose bills. Otherwise, legislators who keep an open mind on issues get cheated out of other points of view, or they hear issues only in legalistic terms. Moreover, dissenting voices in committee hearings give swing legislators cover to oppose a bill, or maneuvering room to negotiate. Under this theory, legislators appreciate the ACLU because they appreciate the cover.
'Kill Kill' vs. 'Kill Kill Kill'
Another hypothesis -- call it the "Libertarians-in-the-Woodwork Hypothesis" -- suggests that the ACLU's current success is something of a fluke: If conservatives have joined up on this year's agenda, it's because it contains libertarian bills. But an ACLU that's rallying against the death penalty, or making a pro-choice stand, might not gather the same kind of support. "We're the friends of certain Republicans who like the fact that we have a pure stance on constitutional rights," says Kathy Mitchell, a longtime Austin activist who was tapped last year to coordinate the ACLU's volunteer lobbyists. Says Rep. Terry Keel, R-Austin, the House sponsor of the racial profiling bill, "It's likely that the ACLU is going to find support from Republicans more and more often -- Republicans like me are more in the vein of reinforcing civil liberties, and making less government and open government more of a priority."
Others argue that -- with or without nitty-gritty politics and libertarians -- Harrell's leadership has been indispensable. "You can have the Republicans ready to accept things," says Ann del Llano, a state ACLU board member and an Austin police accountability activist. "But if Will and his group weren't up there, there are very few people standing up in the hearings speaking on behalf of civil rights."
She recalls the ACLU's work with Tulia, where she saw Harrell at his most effective. Within 24 hours of reading about Tulia in The Texas Observer (reprinted in the Chronicle at austinchronicle.com/issues/dispatch/2000-07-28/pols_feature3.html), Harrell was on his way to the Panhandle with other attorneys and on the phone to the national ACLU office. Soon the national media was covering the story, and the Criminal Justice Reform Coalition was funding trips for Tulia victims to testify in Austin. In other words, says del Llano, within six months, there's a civil rights lawsuit, formal complaints to a criminal justice coalition, a formal complaint to the Texas Attorney General, national media attention, and legislation drafted to limit the power of informants, open police records, and narrow what evidence judges can admit in drug cases. "Without Will's energy, none of that would have happened," Del Llano says. "Before, the case would have sat there for a long time until someone made a decision to pursue it. Then it would have taken more time to find a lawyer. And we would have ended up with a civil suit somewhere."
Harrell's ability to testify credibly on a number of topics (in a recent bout of testifying, he spoke on nine bills before four committees, all of which started at the same time), as well as his good humor, are proven assets. In one instance, a manufacturer was lobbying for a bill to allow police to use a recording technology that analyzes the stress in a speaker's voice. Officers would receive training and certification from the manufacturer. Senators on the Jurisprudence Committee were prepared to believe the rep's claim that no voice stress evidence could be admissible in court -- until Harrell passed a note to Royce West: Can it be used in indictments or to get a warrant? When the lobbyist admitted that those were legal uses, the bill's viability became estimably dimmer. "So I decided to have some fun," Harrell says. He told the senators that he wasn't connected to the polygraph industry, but he wanted to be certified as an expert resource witness because for two months he's operated a Palm Pilot. The senators roared with laughter. "Then I made my political point," Harrell recalls. "I told them, I've seen the movie Gattaca, and Brazil, and I've read George Orwell's 1984." The committee got it. "This bill was Big Brother in your face," Harrell says. It never left the committee.
But not everyone can use a sense of humor. "He had to earn the respect in order to be able to make those comments," Jana Burleson says. "He's testified before [the Senate Jurisprudence Committee] so much that he comes with an inherent amount of respectability."
In another instance in the same committee, Harrell helped sort out the confusion between a bill that would give juries in capital cases the choice of opting for life without parole instead of the death penalty, and another bill that denies juries that choice. Prosecutors were supporting one bill, but they disagreed about which one to support. As Harrell puts it, "there are some prosecutors who are fanatical, 'Kill Kill Kill,' and there are some who are just 'Kill Kill.'" Senator Ken Armbrister, D-Victoria, called up Harrell and Hampton, then faced them off against rotating pairs of prosecutors. "I was really proud of that," Harrell says. "I'd testified before that committee many times, and at this point they've found I'm credible." Those interactions quickly made it clear that prosecutors weren't all on the same page. "It was beautiful how it unraveled," Harrell said.
Another asset is Harrell's hair. At first you think his ponytail operates only to keep his dark hair off his face, but it's also a device sending complex political messages. "He's announcing: I'm not part of this three-piece, button-down world, and it's a welcome sight," says Keith Hampton. "He's sincere and he's passionate and to a bunch of people who've heard the same script from the government for the last 10 years, it's like a brand- new show." It wouldn't be the first time someone's hair figured into their political stature (is Rick Green really gubernatorial material, or is it just his telegenic coif?) but Harrell's hair is in effect a political strategy. Says Jesse Salazar, a former drug prosecutor who is now a staff aide for the Criminal Jurisprudence Committee who met Harrell this year, "When you see this guy in a ponytail, all your preconceived notions of a liberal are going to come up." Having engaged an audience's stereotypes (ideological and rigid, soft-headed, knee-jerk, self-absorbed), Harrell out-performs them. "Will's a crusader," Salazar acknowledges. "But he's learned you can't just come into the legislative process and ram yourself through. Other ACLU guys are balls to the wall, but sometimes it takes compromise."
When he was in Guatemala from 1992 to 1996, Harrell received regular death threats; at one point, one of his law clerks, Elioto Lopez, was beaten to death by the police who were firing on the campus of the La Universidad de San Carlos de Guatemala. And Harrell still pays the costs of his principles. Sometimes he wakes up in the morning and thinks he's still in Guatemala, he admits, because the "blunt racism and ignorance" and the power of the religious right in Texas "aren't unlike the Spanish oligarchy in Guatemala." Doesn't he think the comparison is overstated? He replies by reference to the recent headline Austin case of wrongful homicide conviction, and the now-notorious James Byrd Jr. murder in East Texas.
"Look," he says, "Why don't you ask Chris Ochoa or James Byrd what they think about that?"
If it's not your parents' ACLU, why does it look so familiar? Because it relies heavily on volunteer activists, for one thing. The day that Harrell is sitting in the Senate gallery, a group of about 15 ACLU volunteers are testifying, preparing fact sheets and talking points, or visiting legislators. Every Friday morning at 7am, they meet at a local restaurant to plot the next week's strategy. Most of them aren't lawyers, which is one advantage of legislative work, explains Kathy Mitchell, because it allows nonlawyers to get involved. "We've been effective at bringing in young people who don't have baggage," she says.
The Long March
Mitchell, who has a long ponytail that rivals Harrell's, coordinates the volunteers so well that at any given moment, she knows where they each are: "One volunteer spent a few hours today discussing Internet filtering software with staff of members on a committee that may be poised to vote out a library filtering bill. Someone else made visits all afternoon to prepare members for a police accountability bill of ours posted for tomorrow. One volunteer is preparing information to support a good bill that actually reduces penalties for small marijuana possession; someone else prepared talking points on three bills so that two volunteers could testify today, and someone else is in Transportation testifying on the Pro-Life license plate bill."
Once the session is over, Harrell plans to begin work revitalizing the state ACLU's various chapters, increasing membership, and fundraising. During the session, they've waged a guerrilla-like campaign -- a comparison Harrell makes explicit -- but even though a number of people have felt the urge to do more under Harrell's leadership, he still faces a battle for resources. Currently, the office receives 1,000 requests for help every month, and 250 e-mails a day; the answering machine fills up by 3 o'clock every day. "In some ways, I inherited a defunct organization that's been on the downhill for years and years," he says. "But we're lightening up, and with that will come funding, and with that will come staff."
An even bigger challenge will be preparing for the day when the reception both in and out of the Legislature isn't so warm. "You can get a lot of mileage out being the new kid on the block," says Keith Hampton. But once the ACLU becomes as influential as Harrell, Mitchell, and others intend it to be, it will be a bigger target for a backlash that's almost inevitable, when the national media have gone home. Already this seems to be happening: Republicans are massing on party lines against the death penalty moratoria and the hate crimes bill, and one of the so-called "Tulia bills" -- the one that requires judges to admit evidence of innocence -- has been defeated in committee. The complexities in that issue will require an interim study, Harrell says. "The problems in Texas are profound, and they predate me by a long shot. Nothing's going to get resolved tomorrow. But the ACLU is well-prepared, and I'm here to stay."