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Policy Solution

Success-Oriented Funding: Reforming Federal Criminal Justice Grants

  • Nicole Zayas Fortier
  • Inimai M. Chettiar
Published: August 28, 2014

A new policy proposal from the Bren­nan Center for Justice at NYU School of Law suggests the pres­id­ent make broad reforms to federal grants across the coun­try that fund state and local law enforce­ment. Specific­ally, the pres­id­ent should use his exec­ut­ive author­ity to recast all federal grants for crim­inal justice in a “Success-Oriented Fund­ing” model, in which the flow of dollars is linked to the achieve­ment of clear goals. Grant programs run by the federal govern­ment have a power­ful role in shap­ing the beha­vior of law enforce­ment nation­wide. “Success-Oriented Fund­ing” would encour­age prac­tices that reduce crime and viol­ence without recourse to unne­ces­sary force, whether through police beha­vior or undue focus on arrests and incar­cer­a­tion.

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The unrest in Ferguson, Missouri, has riveted the nation. It has also drawn atten­tion to a phenomenon previ­ously hiding in plain sight: how the federal govern­ment spends grant dollars and the very real and human consequences of those decisions.

The bullets fired at Michael Brown, the tear gas thrown at the protest­ers, and the armored trucks designed for war driv­ing through the streets of Ferguson did not appear out of nowhere. They were purchased.

As has now been widely repor­ted, the Depart­ments of Defense and Home­land Secur­ity supply Amer­ica’s local police depart­ments with milit­ary weaponry or money to buy such equip­ment, includ­ing full body armor, assault rifles, and milit­ary trucks designed for cross­ing land mines. These programs may not have been directly respons­ible for purchas­ing the equip­ment used in Ferguson. However, they still encour­age local police to access and use such equip­ment.

To be clear, many federal grants pay for import­ant law enforce­ment programs that help control crime. The ques­tion is not whether police should have more money or less money, but rather what they do with that money. Wash­ing­ton should not be in the busi­ness of giving out funds without know­ing and condon­ing their ulti­mate use.

On August 23, 2014, Pres­id­ent Obama ordered a review of the federal programs that send milit­ary equip­ment and money to police depart­ments, often with no strings attached.3 He is right to do so. But these are not the only prob­lem­atic federal programs. And excess­ive force is not the only harm­ful outcome.

To bring full account­ab­il­ity to the flow of federal funds used by state and local law enforce­ment, the scope of review should be wider. News reports indic­ate the review will include the largest federal crim­inal justice grant program, the Edward Byrne Memorial Justice Assist­ance Grant (JAG) admin­istered by the Justice Depart­ment. But a review focused on JAG risks being too narrow. Rather, an effect­ive review should extend to all federal grants for crim­inal justice purposes. This report recom­mends the Pres­id­ent take swift exec­ut­ive action to reform these grants.

Today, a complex web of federal crime-fight­ing grants funnels billions of dollars across the coun­try each year. Many of these programs were created during the height of the War on Drugs. Their initial aim: to encour­age states to increase arrests, prosec­u­tions, and incar­cer­a­tion, all in the belief that harsher punish­ment would better control crime. In recent years, the War on Terror promp­ted augment­ing these exist­ing grants and creat­ing new ones to enlist and equip local police.

The Pentagon-to-police equip­ment trans­fer program was created in the early 1990s to help police fight drug gangs. The Home­land Secur­ity Grant Program gives over $1 billion to local police to purchase milit­ary equip­ment. All states receive a minimum amount regard­less of how they spend the money.

Simil­arly the Byrne JAG program, widely expan­ded during the War on Drugs, largely subsid­izes equip­ment for local police. As the Bren­nan Center has docu­mented in previ­ous reports, the program inad­vert­ently creates incent­ives to increase arrests, prosec­u­tions, and incar­cer­a­tion. For example, it eval­u­ates recip­i­ents on the number of crim­inal cases opened, but not whether crime dropped. It asks them how many kilos of cocaine were seized, but not how many people were sent to drug treat­ment. It asks how many cases were prosec­uted, but not how many petty offend­ers were diver­ted from prison.

Strik­ingly, these examples are just a few among many such initi­at­ives. In 2013, the Depart­ment of Justice admin­istered more than 150 of these programs. Hundreds of other federal programs admin­istered by differ­ent agen­cies provide addi­tional dollars while slip­ping the leash of account­ab­il­ity and clear direc­tion. Research by the Bren­nan Center indic­ates the federal govern­ment sends at least $3.8 billion in federal crim­inal justice grants across the coun­try for crime fight­ing and other crim­inal justice purposes, not includ­ing the billions sent through national secur­ity programs run by the Depart­ments of Defense and Home­land Secur­ity.

These dollars often flow on auto­pi­lot. Too frequently, they incentiv­ize anti­quated prac­tices that we now know have little public safety value and massive human consequences. They have contrib­uted to an explo­sion in arrests and impris­on­ments, often without accom­pa­ny­ing public safety bene­fits. The United States is now the largest incar­cer­ator in the world. One in three Amer­ic­ans has a crim­inal record. And one in three black men can expect to spend time behind bars.

Fortu­nately, the process of reform in the Justice Depart­ment has begun. Over the past several years, DOJ has begun to recal­ib­rate its grants, includ­ing revis­ing eval­u­ation meas­ures for JAG and in 2014, remov­ing a ques­tion on number of arrests. Attor­ney General Eric Hold­er’s cutting-edge “Smart on Crime” Initi­at­ive has spurred other vital changes to federal crim­inal justice policies. The Depart­ment is well posi­tioned to continue this momentum with deeper reform, cast­ing a wider net. The Admin­is­tra­tion can also take action to reform all federal crim­inal justice grants spread across federal agen­cies.

This is a moment for strong exec­ut­ive lead­er­ship to reverse our outdated crime-control policies. The Pres­id­ent should issue an exec­ut­ive order direct­ing federal agen­cies to review all federal crim­inal justice grants under their purview. Where these grants encour­age harm­ful prac­tices or have unclear goals, the Pres­id­ent should direct federal agen­cies to recast them in a model called “Success-Oriented Fund­ing.”

Groun­ded in basic prin­ciples of econom­ics and manage­ment, Success-Oriented Fund­ing ties govern­ment dollars as closely as possible to clear outcomes and provides incent­ives to ensure those outcomes are achieved. Law enforce­ment grants, for example, should be tied to specific goals that reduce viol­ence, ensure fair and appro­pri­ate justice, and keep communit­ies safe – without encour­aging unne­ces­sary arrests or force. The ques­tion should be asked: When money is spent purchas­ing more bullets or more guns, is it going to further these goals? Or, is it miss­ing the point?

An act of Congress – which may never come – is not needed. The Pres­id­ent has clear author­ity to reform these grants. Federal agen­cies have discre­tion to imple­ment this model into the grants they admin­is­ter. In some cases, they may not be able to outright condi­tion fund­ing on meet­ing specific targets, but they can “nudge” recip­i­ents by send­ing clear signals on how admin­is­ter­ing agen­cies want recip­i­ents to use the money.

Because these dollars travel across the coun­try, imple­ment­ing Success-Oriented Fund­ing into federal grants can shift prac­tices and outcomes nation­wide.