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Justice Department Issues Changes to Largest Criminal Justice Grant

This month, the Justice Department will change the way it evaluates The Edward Byrne Memorial Justice Assistance Grant.

  • Jon Frank
January 8, 2016

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 Based on outdated meas­ure­ments, federal funds gener­ally flow auto­mat­ic­ally to states and cities to pay for more arrests, more prosec­u­tions and more impris­on­ment,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:
  1. Meas­ur­ing change in crime.
  2. Meas­ur­ing the change in the number of cita­tions instead of arrests issued by police.
  3. Meas­ur­ing the percent of cases where prosec­utors recom­men­ded altern­at­ives to prison.
  4. 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. 

(Photo: Think­stock)