In the Criminal Justice System, Don't Sacrifice Public Safety for Profit

This article first appeared in USA Today.

While the nation’s imprisoned population has declined since peaking in 2009, incarceration levels still remain extraordinarily high.

Continued efforts to lower incarceration rates will stall unless we address the role that revenue plays in the daily operation of police departments, courts, jails and prisons across the country. So much of these entities’ time and effort goes into generating revenue that the goals of pursuing justice and improving public safety often get pushed to the side.

A new Brennan Center for Justice report delves into the interlocking economic incentives that underpin our justice system. Many of these practices rely on a simple calculus: More people in the justice system means more dollars for agencies, governments and contracted for-profit firms

Some of the revenue streams flow straight out of the pockets of the people who are ticketed, searched, arrested, jailed, tried and sent to jail or prison, while others arise from a growing trade in bed space at correctional and detention facilities.

Michael Brown brought attention to Ferguson, Missouri

A 2020 study found that when a municipality increased the percentage of its revenue coming from law enforcement fines, fees and forfeitures, that rise was associated with statistically significant decreases in clearance rates (the ratio of arrests to reported crimes) for both violent and property crimes.

That is an unacceptable trade-off. It’s time for the government agencies involved in the criminal justice system at all levels to examine the revenue-generating parts of their work and its true costs, alongside the budget holes they are meant to fill.

In the face of shrinking state or federal monetary aid, eroded property and sales tax bases, and public distaste for tax increases, the pressure to bring in revenue has been intense, to put it mildly. Even so, every program, every policy that now privileges revenue over safety and justice can be realigned. The solutions to these problems exist. They just need people of courage to apply them.

The killing of Michael Brown in Ferguson, Missouri, drew national attention to user-funded justice — the city had pushed the police department and the courts to maximize funding potential of fines and fees.

In fiscal years 2010 and 2011, about 12% of Ferguson’s general fund revenue came from fines and fees. By fiscal year 2015, the city was budgeting for 23% of its revenues to come from fines and fees.

Civil asset forfeiture no longer hits just drug kingpins

Civil asset forfeiture, too, has metastasized into a major revenue source, going well beyond its onetime purpose of targeting drug kingpins. Law enforcement agencies seize and retain peoples’ cash, vehicles, homes and other items on a suspicion of their connection to an offense without having to prove the connection.

Take Minnesota’s Metro Gang Strike Force. An investigation revealed that its members were stopping and searching people who were clearly not involved in gang activity, and then taking or buying seized items for personal use — like televisions, tools, appliances and jet skis.

Law enforcement agencies have also been earning revenue from bed space. Some counties offer open beds in local jails to state or federal authorities whose own facilities are overcrowded, such as Immigration and Customs Enforcement and U.S. Marshals. Counties can arrange for the federal government to pay them to maintain a “guaranteed minimum” number of beds in their facilities. Some expand their facilities or build new ones to serve this market. Or they can act as intermediaries between federal agencies and for-profit firms, agreeing to house federal detainees and then subcontracting with a company that puts those people in their facilities.

Rebalance the scales of justice

While it is easy to agree that governments should not be extracting money from the most vulnerable, nor that agencies be rewarded for securing overly harsh punishments, the primary challenge to reform is that these financial motivations — and their budgetary effects — have become persistent and self-reinforcing. Nevertheless, we can rebalance the scales of justice, and we must.

For example, policymakers can push back against the growing market in bed space and take steps to reduce correctional and detention populations safely. At the same time, where housing deficits still exist, negotiations and contracting should be subjected to increased transparency and accountability.

Lawmakers can also choose to eliminate civil asset forfeiture. Alternatively, states can redirect forfeiture proceeds away from law enforcement. Legislatures can eliminate all fees, with outstanding debts automatically forgiven.

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In the Criminal Justice System, Don’t Sacrifice Public Safety for Profit

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How Perverse Financial Incentives Warp the Criminal Justice System

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