Federal aid to local law enforcement should be success-oriented
As Congress returns to work, lawmakers will want to examine the tragic events in Ferguson, Mo. However, since policing is largely a local affair, they may turn their attention on federal grant programs to local police, including the Edward Byrne Memorial Justice Assistance Grant Program (Byrne JAG), the largest federal funding source for local law enforcement.
There is already a significant difference between the perception and reality of how JAG dollars are spent. For instance, Byrne JAG funding is not the primary source for local law enforcement attaining military equipment; that is the 1033 program run by the Department of Defense. Nor is it clear that Byrne JAG funding is wildly out of control.
Byrne JAG has been criticized by many organizations, including our own, about how it spends its money. Specifically, there is a concern that without a lack of clear purpose regarding how the money is spent, accountability on how the money is used is hard to come by. There are seven different “purpose areas” ranging from purchasing of police equipment to indigent defense to drug treatment, although the majority of funds – about 65 percent — are still allocated to law enforcement.
Recently, DOJ has begun to re-think its approach, as noted two recent Brennan Center reports. Working with the National Criminal Justice Association, the Justice Department has worked with states to assist them through a planning process before determining how Byrne JAG funds will be spent. Also, in its call for grant applications, the Justice Department has expressed a preference for “evidence-based” programs (i.e. data driven programs that provide evidence of achieving goals.), which is a major–and we think positive– shift from previous requirements for federal grant dollars. And, most recently, the Justice Department removed questions to grantees asking how many arrests were made using these funds.
And, just as states have led the way in prison reform, some are charting new paths with Byrne JAG. States from California to Virginia have begun to re-think how they use Byrne JAG funds. It would be wise for Congress to understand these promising efforts so they can be careful not to throw away the bad with the good.
These states recognize the realities of an overburdened criminal justice system in an era of historically low crime rates. For instance, California’s Board of State and Community Corrections undertook a survey of stakeholders throughout the system, including law enforcement officials, drug treatment providers and policymakers. The clear desire was for programs that prevent people from entering or re-entering the system. There was universal support for problem-solving courts as well as for law enforcement efforts such as gang interdiction and prevention, data collection, and less money for drug interdiction.
The widely-touted Illinois Adult Redeploy program is another prime example of Byrne JAG funding supporting evidence-based programs. In fact, the program was started with seed funding from Byrne JAG. Under this program, non-violent offenders are sent to specialty courts or placed on probation, and counties are rewarded with more dollars when they send 25 percent fewer people to prison. This type of “Success-Oriented Funding” approach, which the Brennan Center has advocated be adopted more broadly, properly aligns incentives with the desired policy outcomes.
New Mexico’s Department of Public Safety has ended all “business-as-usual” legacy funding in favor of one based on extensive data analysis, comprehensive strategic planning and rigorous oversight. The state is moving toward using economic indicators to determine the cost effectiveness of programs and is requiring an extensive training program for the Department’s partners. Virginia now prioritizes its Byrne JAG funding to programs that are evidence-based. Washington State developed a thoughtful peer review process where teams of evaluators suggest improvements for how to operate task forces. And, Rhode Island deploys the majority of its Byrne JAG funds to statewide projects focused on recidivism reduction. These are just a few examples of how states are rethinking their use of Byrne JAG funding.
Byrne JAG is hardly perfect. There are still too many states doling out money to police with little critical thought. The mass incarceration era was brought about, in part, by lawmakers thinking little about consequences and responding to the emotions of their constituents. It would be a shame and would only compound the Ferguson tragedy if Congress responded the same way this time. Instead, Ferguson should be seen as an opportunity to bring some reform to Byrne JAG – such as an emphasis on improving police-community relations and implementing a Success Oriented Funding strategy – instead of just blindly slashing funds in areas that are in critical need of them.
Eisen is counsel at the Brennan Center for Justice at NYU School of Law, and Solomon is policy counsel at the Brennan Center’s Washington, D.C. Office