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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.