This month, the Justice Department will change the way it evaluates its largest federal criminal justice grant program. These grant programs have long been criticized for subsidizing mass incarceration. Based on outdated measurements, federal funds generally flow automatically to states and cities to pay for more arrests, more prosecutions and more imprisonment, without measuring their effect on public safety.
At first glance, these changes may seem only technical, but they actually represent shifts in policy. The Edward Byrne Memorial Justice Assistance Grant (JAG) gives around $400 million to states and cities annually. Funds are distributed on the basis of a formula that includes such factors as population size and violent crime rate. The money primarily goes to local law enforcement, but can also be used for other purposes such as indigent defense and drug treatment. These grants have an outsize influence on state and local policy because these are “bonus” funds that do not need to be raised by taxes.
In 2002, after a JAG-funded operation carried out discriminatory mass arrests based on false drug charges in Tulia, Texas, the ACLU of Texas outed several scandals ranging from evidence fabrication to racial profiling involving JAG-funded drug task forces. This marked the beginning of a sustained chorus of criticism from bipartisan groups on the grant’s subsidization of drug war policies, particularly unaccountable and discriminatory enforcement of low-level drug crimes while neglecting serious and violent crime. In 2011, the Heritage Foundation called for Congress to eliminate JAG grants altogether.
In response to these concerns, in 2013 the Brennan Center comprehensively reviewed the performance measures, analyzing how they created perverse incentives, surveying recipients, and recommending new success measures. It found that JAG created perverse incentives through the use of distorted performance measures that grantees were required to track in reports filed with the Justice Department. For instance, states were asked to report the number of arrests, but not whether the crime rate dropped. The amount of drugs seized was tabulated, but not whether arrestees were screened for drug addiction. And only the number of cases prosecuted was measured, not whether prosecutors used alternative sanctions for low-level offenses. The simple reality was that volume of law enforcement was being measured, but not its success.
The report called for JAG to use a “Success-Oriented Funding” model. Simply put, the model would create clear incentives for states, cities, and local police to move toward a successful 21st century criminal justice system that reduces both crime and unnecessary incarceration. This reignited the diverse coalition calling for reform. Groups ranging from Right on Crime to the Police Foundation to the Drug Policy Alliance called for the White House and Justice Department to take up new measures. The media also weighed in, with powerful articles in the Economist, Washington Post, and National Review.
Subsequently, the Justice Department took the crucial step of adopting many of the Brennan Center report’s recommendations. Now, on January 30, 2016, grant recipients will submit the first set of evaluations using the revised performance measures that better steer recipients toward reducing crime and incarceration, instead of increasing enforcement and arrests. The changes include:
- Removing number of arrests as a measure. One of the most problematic, this measure signaled to recipients that increasing arrests was a priority, and incentivized such behavior. This is a classic example of measuring success and accountability through volume instead of results.
- Removing drug enforcement measures, including volume of drugs seized. For many years the Justice Department asked police departments receiving JAG funds to report on the volume of drug enforcement, including the amount of drugs seized, the value of drug-related assets seized, and the number of new drug-related cases opened. These measures in particular incentivize low-level drug enforcement.
- Adding several positive incentives that direct recipients toward reducing crime and unnecessary incarceration, including:
- Measuring change in crime.
- Measuring the change in the number of citations instead of arrests issued by police.
- Measuring the percent of cases where prosecutors recommended alternatives to prison.
- Measuring whether people attending mental health and drug treatment programs demonstrate improvement—for example through their recidivism rate, graduation rate, and staying clean.
While these changes are critical, the federal government can do more to use funds to encourage smart policies that lower incarceration. Today, Washington sends $3.8 billion in funds to states for criminal justice. These dollars are still largely on autopilot, working to subsidize mass incarceration across the country. Congress should pass a new law to change these grants. A “Reverse Mass Incarceration Act,” would direct these federal grants to states that reduce crime and incarceration. Through JAG and other programs, the federal government encouraged states to increase their prison populations. It can and should now encourage states to reverse that trend.