Texas Rangers as investigators of cops is dubious plan

Airport police cruise past the international terminal at DFW International Airport, September 13, 2001. REUTERS/Jeff Mitchell

(Reuters) - A series of recent news investigations is revealing the fundamental flaws of a system of oversight for law enforcement in Texas that relies on state police to investigate alleged misconduct by local police.

In downtown Fort Worth, officials at the Tarrant County Jail sometimes refuse to explain or provide even basic information about how and why someone died in custody, including to the families of the deceased. The Texas Rangers -- which investigates deaths involving local police – almost never finds that officers did anything wrong in those deaths, and it is equally cagey about providing the relevant government records.

One woman, Shanelle Jenkins, found out by reading a newspaper that her husband had died at the jail, according to an April 17 examination of in-custody deaths by the Fort Worth Star-Telegram.

Her husband Robert Geron Miller, who struggled with mental illness, was arrested on misdemeanor warrants after police responded to a call about a man who was possibly homeless. The Rangers determined that his death in jail was the result of a sickle cell crisis – a dubious yet relatively common explanation when Black people die in police custody, according to a May 2021 New York Times investigation.

At least 40 people have died in the Tarrant County jail since 2016, and 31 of them died in just the past two years. Most of the deaths were from natural causes or illness, but others have left people like Jenkins suspicious about whether their relatives were victims of excessive force, medical neglect or some other misconduct, the Star-Telegram reported.

An earlier examination by the New York Times identified 29 cases the Rangers investigated since 2015 in which a person died after a struggle with law enforcement. None led to any charges against officers, the Times reported in September last year.

And there were other signs of pro-police bias: Investigators didn’t visit the scene of in-custody deaths in a number of cases and failed to conduct even a single interview in others. In one case, an investigator sided with two guards over 10 pathologists who determined that the cause of death was homicide by mechanical asphyxiation – being suffocated or choked to death by another person, the Times reported. Maybe most tellingly, in at least three cases, Rangers conducting oversight assigned important fact-finding tasks to officers at the very agencies that were under investigation.

Tarrant County Sheriff Bill Waybourn didn’t respond to requests for comment. The Rangers and the Texas Department of Public Safety, its parent agency, also didn’t respond to questions for this column.

Jenkins’ attorney, David Henderson of Ellwanger Law in Dallas, told me the agencies have been “more willing to provide information to newspaper reporters than to our clients or even to us,” partly because they’re aware that newspapers are willing to litigate at length in order to get (ostensibly) public records.

Jenkins is taking legal action to get more records about her husband’s death and to sue for wrongful death.

“I don’t think the Rangers are truly independent when they conduct these investigations,” Henderson said. “They’re basically an umbrella organization that protects police officers.”

Internal investigations of police use-of-force have been criticized for years for their inherent bias. And the criticism applies nearly as well to investigations performed by other police agencies and officers.

It’s a common-sense observation, in some respects.

“Having police officers police themselves presents obvious conflicts of interest, while having civilians conduct these investigations provides an external check on the police,” Udi Ofer, deputy national political director at the American Civil Liberties Union, wrote in a 2016 law review article.

Moreover, research has shown that it’s difficult for professionals to fulfill roles that demand objectivity where their strong bonds and affinity toward a subject also create some favoritism -- or partisanship, Walter Katz, the then-deputy inspector general of Los Angeles County wrote in 2015 (Consider judges, for example). Katz is now vice president of criminal justice at Arnold Ventures.

And, of course, the point has also been borne out in other similar news reporting over a number of decades.

Rachel Moran, a professor at the University of St. Thomas School of Law in Minnesota, called the entire notion of internal police investigations a “farce” that even children might find laughable in a 2016 law review article.

“Police departments across the country rubberstamp their officers’ overuse of force,” Moran wrote, pointing to a 2012 survey showing that most Connecticut police departments actually deterred people from filing misconduct complaints, and that officers sometimes simply refused to conduct internal investigations in cities around the country, including Newark, New Orleans and Denver.

“Many cities, recognizing the futility of relying on police departments to police themselves, have attempted to institute various forms of civilian oversight,” Moran noted.

Civilian oversight boards are certainly not a panacea to police violence. In fact, they’ve been around since at least the 1940s, and most efforts – like most other categories of police reform measures -- have been largely ineffective, Ofer wrote in the 2016 article.

Still, the central deficiencies of earlier civilian oversight boards are now clearer to activists, criminologists and legal experts, many of whom continue to advocate outside, independent oversight of law enforcement.

There is a consensus among scholars about the “crucial nature of independence” from police and political actors, for example, according to a 2016 report by the National Association for Civilian Oversight of Law Enforcement.

And Ofer, Moran and others agree that civilian oversight bodies have historically been hamstrung -- "rigged to fail," in Ofer's words -- by narrow mandates and a lack of actual investigatory or disciplinary powers.

Officials in Texas could certainly improve their current processes a great deal, in light of the recent research in this area and the reporting on Tarrant County jail. Of course, that requires an interest in correcting police misconduct rather than stonewalling civilian attempts to hold officers accountable.

(NOTE: This column refiled to remove an extraneous word.)

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