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The Federal Funding that Fuels Mass Incarceration

Decades of financial incentives by the federal government have encouraged states and cities to put more people behind bars for longer, with devastating results.

View the entire Punitive Excess series

This essay is part of the Brennan Center’s series examining the punitive excess that has come to define America’s criminal legal system.

Other essays in this series have pointed out how sentencing laws and other criminal legal policies have created a system of mass incarceration resulting in more than 2.1 million people behind bars, almost 4.5 million people on probation and parole, and 70 million people with criminal convictions. What is far less well-known is how federal funding for law enforcement and prison construction has played a key role in creating today’s vast national carceral landscape. For more than half a century, federal dollars have incentivized and rewarded disproportionately punitive responses to crime.

Since the late 1960s, federal funding has fueled local criminal justice policy in ways that have resulted in more arrests, more incarceration or probation, harsher sentencing laws, and more contacts with the criminal justice legal apparatus. Today, Washington spends billions of dollars each year subsidizing state and local criminal justice agencies. The Justice Department by itself distributes more than $5 billion in federal grants to state and local governments annually, not including the funding that law enforcement agencies across the nation get from the Department of Homeland Security. Hundreds of millions more come through the Department of Defense, which facilitates the transfer of military-grade weapons and armored vehicles to police departments — for instance, a $705,000 armored mine-resistant vehicle for Bridgeport, Connecticut. Even the Department of Agriculture has gotten involved, providing $360 million to build jails in rural communities since 1996.

The history of such punitive funding stretches back to President Lyndon Johnson’s signing of the Omnibus Crime Control and Safe Streets Act of 1968, which earmarked $400 million for law enforcement purposes. Four years later, Richard Nixon, who had ascended to the presidency after running a campaign focused on “law and order,” announced that since 1969, his administration had doled out $1.5 billion in state and local law enforcement grants, compared to just $22 million during the final three years of the Johnson administration.

In the ensuing years, as crime increased — particularly crime related to the spread of crack cocaine — so did the flow of federal dollars. The Anti-Drug Abuse Act of 1986, signed by President Ronald Reagan, increased funding for law enforcement and mandated harsher penalties in federal drug cases, including life imprisonment. The legislation not only dedicated more than $1 billion to state and federal law enforcement agencies, including an authorization of $96.5 million for new federal prisons, but also expanded the use of no-knock warrants, such as the one used by Louisville police last year when they killed Breonna Taylor as she slept in her home.

Then came the legislation that showed how policy had been fully separated from reality. Crime in the United States peaked in 1991, but even as it declined Washington’s appetite for crueler penalties and overreaching enforcement increased. The watershed moment was the enactment of the Violent Crime Control and Law Enforcement Act, often referred to as the 1994 Crime Bill, signed into law by President Bill Clinton.

By the time of the bill’s enactment, the violent crime rate had already fallen by 6 percent. By the time it took effect the following year, violent crime was down by 10 percent. Yet over the next decade, despite what would become the most dramatic drop in crime in the nation’s history, politicians chose not to lead the nation in urgently necessary conversations about the proper role of enforcement and punishment, but to feed the punitive machine they had built.

The 1994 Crime Bill did ban 19 types of semiautomatic firearms (defined as “assault weapons”) as well as restricting the characteristics of firearms that could be sold legally, and it included the Violence Against Women Act to protect victims of domestic violence. However, the legislation also mandated harsher penalties for people caught in the criminal legal system. It authorized the death penalty for dozens of existing and newly defined federal crimes, and it required life imprisonment for any conviction for a third violent felony, the infamous “three strikes and you’re out” policy. It also established a funding mechanism that incentivized and rewarded states for sending people to prison for very long periods of time.

The 1994 Crime Bill also offered federal grants to states to expand their prison capacity, and it made the grants dependent on states’ increasing the length of incarceration of those convicted of violent crimes. Through the bill’s Violent Offender Incarceration and Truth-in-Sentencing (TIS) Incentive Grants Program, the legislation authorized $12.5 billion in grants to fund incarceration, with nearly 50 percent earmarked for states that adopted tough “truth-in-sentencing” laws that scaled back parole. Specifically, states were rewarded for having or enacting laws requiring those convicted of violent crimes to serve at least 85 percent of the sentence imposed, making it difficult for those convicted of violent crimes to earn early release based on rehabilitative principles. Eleven states adopted TIS laws in 1995, one year after the bill was signed. By 1998, incentive grants had been awarded to 27 states and the District of Columbia.

In addition to the financial incentives, states found significant symbolic value in the program’s messaging. In 1999, the authors of an Urban Institute study on the legislation’s impact interviewed a staff member of Connecticut’s Office of Policy and Management. They wrote, “When asked about Connecticut’s motivation in moving to an 85 percent truth in sentencing law, [the staff member] responded that Connecticut liked to be ‘ahead of the curve’ on national reforms, and she implied that the state government might be viewed negatively if it did not seek federal funds to help with its perceived crime problem.”

Another creation of the 1994 Crime Bill was the Community Oriented Policing Services (COPS) Program, a division of the Justice Department that has provided billions of dollars to police departments to hire new officers. Between 1995 and 1999, the annual appropriation for the COPS program averaged nearly $1.4 billion. At the same time — as journalist Radley Balko demonstrated in his 2013 book, Rise of the Warrior Cop: The Militarization of America’s Police Forces — the federal government ceded some control over the use of this money, resulting in many law enforcement agencies spending funds not on community policing, but on the militarization of their forces.

And so it continued: even as the frequency of crime declined, the federal response was more spending on more enforcement and more punishment. In 2005, when reauthorizing the Violence Against Women Act, Congress expanded previous laws providing funding for local police to create the Justice Assistance Grant (JAG) program. All 50 states plus Washington, DC, six U.S. territories, and more than 1,000 local governments now utilize JAG funds, which amount to $300 to $500 million yearly — dollars that support almost any criminal justice activity covered by the federal statute.

For many years, civil rights groups criticized the program for funding drug task forces that were often unnecessary for the protection of public safety. These task forces provide avenues for agencies across governments to share personnel, equipment, intelligence, and other resources. Critics, including the Brennan Center, pointed out that federal officials asked JAG recipients to report the number of arrests made, but not their crime rates. DOJ also measured the amount of cocaine seized, but not whether those arrested were screened for drug addiction. The department’s own metrics sent a signal to states and local governments that JAG funding was implicitly conditioned on more arrests, more cocaine busts, and more prosecutions — inevitably at the expense of crime prevention activities or programs that could divert people from the criminal legal system.

Today, there is an emerging recognition that federal dollars have helped deepen today’s devastating fissures between police and the communities they purport to serve, perpetuating trauma and harm through mass incarceration and criminal legal system overreach. Under the Obama administration, the Justice Department revised JAG performance measures to better steer recipients toward the development of programs that would reduce crime and incarceration, in place of increased enforcement and arrest activity. For example, the DOJ stopped asking how many people were arrested and how many drugs were seized, and instead started asking about the number of citations issued in lieu of arrest, and whether prosecutors routinely recommend alternatives to prison.

The ripple effects from mass incarceration are causing generations of damage. So many children (more than 5.3 million under age 18, by a recent estimate) have experienced parental incarceration that in 2013 Sesame Street felt it necessary to add a Muppet named Alex, whose father is incarcerated, to reach out to children grappling with how to grow up with a parent behind bars.

In a 2015 speech before the NAACP, Bill Clinton publicly apologized for the harm the 1994 Crime Bill caused. “I signed a bill that made the problem worse, and I want to admit it,” he said. “In that bill there were longer sentences and most of these people were in prison under state law, but the federal law set a trend, and that was overdone. We were wrong about that.”

In what was a remarkable and rare acknowledgment of how far afield policymakers and governments strayed by overfunding the growth of our police and carceral state, one can catch a glimpse of the regret of a nation.