A new policy proposal from the Brennan Center for Justice at NYU School of Law suggests the president make broad reforms to federal grants across the country that fund state and local law enforcement. Specifically, the president should use his executive authority to recast all federal grants for criminal justice in a “Success-Oriented Funding” model, in which the flow of dollars is linked to the achievement of clear goals. Grant programs run by the federal government have a powerful role in shaping the behavior of law enforcement nationwide. “Success-Oriented Funding” would encourage practices that reduce crime and violence without recourse to unnecessary force, whether through police behavior or undue focus on arrests and incarceration.
Introduction
The unrest in Ferguson, Missouri, has riveted the nation. It has also drawn attention to a phenomenon previously hiding in plain sight: how the federal government spends grant dollars and the very real and human consequences of those decisions.
The bullets fired at Michael Brown, the tear gas thrown at the protesters, and the armored trucks designed for war driving through the streets of Ferguson did not appear out of nowhere. They were purchased.
As has now been widely reported, the Departments of Defense and Homeland Security supply America’s local police departments with military weaponry or money to buy such equipment, including full body armor, assault rifles, and military trucks designed for crossing land mines. These programs may not have been directly responsible for purchasing the equipment used in Ferguson. However, they still encourage local police to access and use such equipment.
To be clear, many federal grants pay for important law enforcement programs that help control crime. The question is not whether police should have more money or less money, but rather what they do with that money. Washington should not be in the business of giving out funds without knowing and condoning their ultimate use.
On August 23, 2014, President Obama ordered a review of the federal programs that send military equipment and money to police departments, often with no strings attached.3 He is right to do so. But these are not the only problematic federal programs. And excessive force is not the only harmful outcome.
To bring full accountability to the flow of federal funds used by state and local law enforcement, the scope of review should be wider. News reports indicate the review will include the largest federal criminal justice grant program, the Edward Byrne Memorial Justice Assistance Grant (JAG) administered by the Justice Department. But a review focused on JAG risks being too narrow. Rather, an effective review should extend to all federal grants for criminal justice purposes. This report recommends the President take swift executive action to reform these grants.
Today, a complex web of federal crime-fighting grants funnels billions of dollars across the country each year. Many of these programs were created during the height of the War on Drugs. Their initial aim: to encourage states to increase arrests, prosecutions, and incarceration, all in the belief that harsher punishment would better control crime. In recent years, the War on Terror prompted augmenting these existing grants and creating new ones to enlist and equip local police.
The Pentagon-to-police equipment transfer program was created in the early 1990s to help police fight drug gangs. The Homeland Security Grant Program gives over $1 billion to local police to purchase military equipment. All states receive a minimum amount regardless of how they spend the money.
Similarly the Byrne JAG program, widely expanded during the War on Drugs, largely subsidizes equipment for local police. As the Brennan Center has documented in previous reports, the program inadvertently creates incentives to increase arrests, prosecutions, and incarceration. For example, it evaluates recipients on the number of criminal cases opened, but not whether crime dropped. It asks them how many kilos of cocaine were seized, but not how many people were sent to drug treatment. It asks how many cases were prosecuted, but not how many petty offenders were diverted from prison.
Strikingly, these examples are just a few among many such initiatives. In 2013, the Department of Justice administered more than 150 of these programs. Hundreds of other federal programs administered by different agencies provide additional dollars while slipping the leash of accountability and clear direction. Research by the Brennan Center indicates the federal government sends at least $3.8 billion in federal criminal justice grants across the country for crime fighting and other criminal justice purposes, not including the billions sent through national security programs run by the Departments of Defense and Homeland Security.
These dollars often flow on autopilot. Too frequently, they incentivize antiquated practices that we now know have little public safety value and massive human consequences. They have contributed to an explosion in arrests and imprisonments, often without accompanying public safety benefits. The United States is now the largest incarcerator in the world. One in three Americans has a criminal record. And one in three black men can expect to spend time behind bars.
Fortunately, the process of reform in the Justice Department has begun. Over the past several years, DOJ has begun to recalibrate its grants, including revising evaluation measures for JAG and in 2014, removing a question on number of arrests. Attorney General Eric Holder’s cutting-edge “Smart on Crime” Initiative has spurred other vital changes to federal criminal justice policies. The Department is well positioned to continue this momentum with deeper reform, casting a wider net. The Administration can also take action to reform all federal criminal justice grants spread across federal agencies.
This is a moment for strong executive leadership to reverse our outdated crime-control policies. The President should issue an executive order directing federal agencies to review all federal criminal justice grants under their purview. Where these grants encourage harmful practices or have unclear goals, the President should direct federal agencies to recast them in a model called “Success-Oriented Funding.”
Grounded in basic principles of economics and management, Success-Oriented Funding ties government dollars as closely as possible to clear outcomes and provides incentives to ensure those outcomes are achieved. Law enforcement grants, for example, should be tied to specific goals that reduce violence, ensure fair and appropriate justice, and keep communities safe – without encouraging unnecessary arrests or force. The question should be asked: When money is spent purchasing more bullets or more guns, is it going to further these goals? Or, is it missing the point?
An act of Congress – which may never come – is not needed. The President has clear authority to reform these grants. Federal agencies have discretion to implement this model into the grants they administer. In some cases, they may not be able to outright condition funding on meeting specific targets, but they can “nudge” recipients by sending clear signals on how administering agencies want recipients to use the money.
Because these dollars travel across the country, implementing Success-Oriented Funding into federal grants can shift practices and outcomes nationwide.