Federal anti-crime programs fare well in the new spending agreement. That’s a bad thing.

The Crime Report has a rundown. A few notable items:

• The two biggest agencies within the U.S. Department of Justice got increases–a total of $8.3 billion for the FBI, up $248.7 million from last year, and $6.77 billion for the Bureau of Prisons, up $90.2 million from last year.

• The Drug Enforcement Administration gets $2.02 billion, up $9.6 million.

* The Bureau of Alcohol, Tobacco, Firearms and Explosives gets $1.18 billion, up $49.6 million.

• Byrne-JAG grants for state and local anticrime programs get $376 million, $8.3 million less than last year but $11 million more than what the appropriators called the “post-sequester level,” referring to earlier-enacted mandatory budget cuts known as sequestration.

• Violence Against Women Prevention and Prosecution Programs get $417 million, up $9.1 million from last year.

• The COPS community oriented policing program, periodically targeted for elimination by Republicans but supported by Democrats, gets $214 million, $4 million under last year but $4 million above the post-sequester level.

Some programs faced some significant cuts, including a fund to reimburse states for incarcerating undocumented immigrants, and federal juvenile justice funding.

The Crime Report points out that “[i]nsiders give much of the credit for preserving anticrime expenditures to Senate Appropriations Committee Chairwoman Barbara Mikulski (D-MD) . . . a strong proponent of federal support for criminal justice.”

It’s a mistake to reflexively think federal involvement in criminal justice policy is always a good thing. Many of these crime-fighting grants have become a way for federal policymakers to impose crime policy on states and municipalities, and the policies imposed are often more aggressive and draconian than whatever those states and municipalities might have otherwise done. The bait-and-switch tactic began during the Nixon administration. Nixon and Attorney General John Mitchell were looking for a way to impose Nixon’s aggressive anti-crime agenda on cities and states that were averse to federal meddling on criminal justice issues. Turning on the funding spigot, then threatening to pull it away, proved to be pretty effective.

Federal anti-drug grants, for example, provide a financial incentive for local law enforcement agencies to prioritize drug policing over, say, investigating assaults. They can also cause some police agencies to impose quotas on drug cops, a policy that can produce some disastrous consequences. The aforementioned Byrne-JAG grant program funds the creation and maintenance of multi-jurisidictional anti-drug task forces, the often unaccountable police units that have given us debacles like the mass (and wrongful) arrests of sizable portions of the black populations of Hearne and Tulia, Texas.

The other problem with these grants is that there’s no real metric attached to them. The Brennan Center recently published an excellent overview of this problem, with some smart proposals for reform. But the fundamental hitch with these grants is that they’re usually designed to go to where crime is bad. That means that police agencies who are doing a poor job fighting crime are rewarded with grants, while agencies that see crime improve risk losing their funding. Grants like those for High Intensity Drug Trafficking Areas (HIDTA), for example, encourage police agencies to devote an inordinate amount of police resources to making drug arrests. More drug arrests make it more likely that their jurisdiction will be designated a HIDTA—and get the funding that comes with it.

Even well-intentioned, hard-to-oppose programs can produce bad results. I’ve heard from defense attorneys that the grants aimed at preventing and prosecuting domestic violence, for example, provide an incentive for police and prosecutors to aggressively pursue domestic violence convictions even in cases where the alleged victim has no interest in pressing charges, or to overlook evidence that an incidence of reported abuse may have been motivated by a custody dispute.

The COPS grants have been problematic too. Community policing in theory is an admirable objective. The idea is to encourage cops and police agencies to be less reactionary—to see themselves not as soldiers in the war on crime, but as members of a community, who have been charged with keeping that community safe. Cops should walk beats, be encouraged to live in the communities they patrol, attend neighborhood meetings, and so on.

But in my recent book, I explain how despite the good intentions, COPS grants historically haven’t come with any requirement that they be spent on community policing (and in any case, police budgets are fungible). Nor have they come with a specific definition of what community policing actually means. Surveys and interviews done by criminologist Peter Kraska have shown that for many law enforcement leaders, community policing means frequent use of SWAT teams, roadblock checkpoints, “stop and frisk” and even using SWAT or other paramilitary police teams for regular patrols.

So in the early 2000s, reports began to surface that the program was being used by police agencies to create SWAT teams, certainly not something for which the grants were intended. Both major parties tend to be fond of the grants. It lets your local congressman put out press releases announcing how he procured federal funding for your local police. But interestingly, to the extent that there is a difference between the parties, it’s the Republicans who are more skeptical. In fact, the George W. Bush administration had begun phasing out funding for both the Byrne and COPS grants. I suspect that was more out of an allegiance to federalism and an aversion to federal spending than concern about the proliferation of SWAT teams or overly aggressive drug busts. But as the Mikulski quote indicates, Democrats have worked to bring them back.

A few years ago, I had the opportunity to explain this problem to Rep. Bobby Scott (D-Va.), who at the time chaired the House subcommittee that handles federal criminal justice policy (it’s now called the House Judiciary Subcommittee on Crime, Terrorism, Homeland Security and Investigations). Scott was flabbergasted that COPS grants were being used to start SWAT teams. It was, he said, not at all what he and other supporters of the program intended. Nevertheless, his committee recommended a budget that refunded the program at 1990s levels, with no restrictions on how the grants are used.

Not that there is no role for federal oversight of local law enforcement. Arguably, after investigating terrorism and interstate crime, the federal government’s most important function in this area is civil rights enforcement. That is, to intervene when sheriffs, police chiefs, prosecutors, and judges either violate or inadequately protect the civil rights of the citizens they serve. Unfortunately, the budget for this variety of civil rights enforcement withers in comparison to the funding for the myriad other ways the federal government tries to influence local criminal justice policy. More on that in a future post.

Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces."
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Radley Balko · January 22