9
The Federal Role
This chapter lays out a framework by which federal actors and policy makers can support communities in their work to promote safety and address the inequalities in their respective public safety systems. The goal of this framework is to strengthen the capacity of communities and local jurisdictions to promote safety while optimizing the footprint of the criminal justice system by reducing the scope of its harm. In this context, the emphasis on growing opportunities rather than repressing individual traits or behaviors, as described in Chapter 6, is critically important. The federal government can support growing opportunity through mechanisms such as revenue sharing or formula funding programs, allowing for local discretion, rather than tying aid to a particular solution through categorical grants-in-aid, which have made funding contingent on implementing policies/strategies deemed best by the federal agency (or the congressional appropriator).
This chapter opens with a discussion of the history of the first federal grant program for crime control, underscoring the role of the federal government in local crime control efforts. The critical importance of federal dollars in crime initiatives was outlined in a 2014 National Research Council report, The Growth of Incarceration in the United States: Exploring Causes and Consequences:
In the 1980s and 1990s, state and federal legislators passed and governors and presidents signed laws intended to ensure that more of those convicted would be imprisoned and that prison terms for many offenses would be longer than in earlier periods. The increase in the use of imprisonment as a response to crime reflects a clear policy choice. No other inference can
be drawn from the enactment of hundreds of laws mandating lengthier prison terms. In the federal Violent Crime Control and Law Enforcement Act of 1994, for example, a state applying for a federal grant for prison construction was required to show that it: (A) has increased the percentage of convicted violent offenders sentenced to prison; (B) has increased the average prison time which will be served in prison by convicted violent offenders sentenced to prison; (C) has increased the percentage of sentence which will be served in prison by violent offenders sentenced to prison.
During the 1970s, experiments with voluntary sentencing guidelines were undertaken in many states, and all but one state enacted mandatory minimum sentence laws typically requiring minimum 1- or 2-year sentences or increases of 1 or 2 years in the sentences that would otherwise have been imposed. During the 1980s, the federal government and nearly every state enacted mandatory minimum sentence laws for drug and violent crimes, typically requiring minimum sentences of 5, 10, and 20 years or longer. During the 1990s, the federal government and more than half the states enacted truth-in-sentencing and three strikes laws. Almost all of the states now have life without possibility of parole laws. Voluntary guidelines and statutory determinate sentencing laws proved ineffective at achieving their aims of increasing consistency and diminishing racial and other unwarranted sentencing disparities.
Racial and ethnic disparities in imprisonment reached extreme and unprecedented levels in the 1980s and 1990s and have since remained at deeply troubling levels. They were partly caused and significantly exacerbated by recent sentencing laws aimed at achieving greater severity, certainty, and crime prevention and by law enforcement strategies associated with the war on drugs. They also resulted partly from small but systematic racial differences in case processing, from arrest through parole release, that have a substantial cumulative effect. And they were influenced by conscious and unconscious bias and stereotyping that remain pervasive in America despite the near disappearance of widespread beliefs about racial superiority and inferiority. (NRC, 2014, pp. 70; 101–102)
HISTORY OF FEDERAL GRANT MAKING FOR CRIME AND PUBLIC SAFETY
The Law Enforcement Assistance Administration (LEAA) was established by the Omnibus Crime Control and Safe Streets Act of 1968 (hereafter the Safe Streets Act) as the first federal program to distribute crime control grants to states. The LEAA functioned as the federal government’s law enforcement consultant, promoting a national strategy on crime to the states and, through them, to local governments. The agency provided and arranged for technical assistance both directly and through contractors, consultants, and publications produced by its research arm, the National Institute of Criminal Justice. In its early years, the LEAA focused
on improving the technological capacity of police departments and modernizing police operations. The Safe Streets Act’s emphasis on interagency planning and coordination supported the LEAA in forging links between law enforcement and social agencies in urban centers as well as military and intelligence agencies, such as the Department of Health, Education, and Welfare; the Department of Housing and Urban Development; the Army; and the Central Intelligence Agency (CIA; Hinton, 2017).
The Safe Streets Act required states to develop long-term crime control strategies through criminal justice planning agencies and provided federal funding for such efforts at 90 percent of their cost. These state-level planning agencies acted as subgrantors between the federal government and municipalities. To be eligible for LEAA grants, governors had six months to organize local and law enforcement officials to craft a criminal justice improvement plan. Once the LEAA reviewed plans in areas such as training officers, detecting and apprehending criminals, and improving prosecution and the courts, each state received a grant of at least $100,000 with additional funds available based on their population (Hinton, 2017).
The various crime prevention programs the LEAA helped subsidize included the state-level acquisition of surplus military technologies such as carbine rifles, armored vehicles, and bullet-proof vests at up to 90 percent of their cost. Special tactical units such as SWAT teams, plainclothes forces, and undercover squads were funded by the agency at up to 75 percent of their cost. In addition to these hardware and patrol programs, the LEAA supported the development of police-community relations programs, which were eligible for federal funding at 40 percent of their cost. The LEAA also sought to make law enforcement into an attractive middle-class profession: the agency funded the tuition for some 50,000 officers enrolled in police science programs at more than 1,000 colleges and universities in mostly small suburban areas across the United States. Finally, LEAA funding incentivized the private sector to manufacture cutting-edge equipment such as walkie-talkies and develop technologies such as computerized criminal justice databanks, tasks that the LEAA viewed as crucial to modernizing American law enforcement (Hinton, 2017).1
The LEAA served as the centerpiece of the federal government’s grant making and research arm within the Department of Justice through the 1970s. In 1969, the initial congressional allocation for the LEAA was only $63 million. The LEAA spent several months of its first year of operation building staff capacity before evaluating proposals and making awards.
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1 On the relationship between the LEAA and the Department of Housing and Urban Development, and between LEAA and the CIA and the army, see Hinton (2017). On the LEAA and public relations programs promoting the crime issue, see Carmody (1974) as cited in Hinton (2017) as well as Waugh (1969).
Once the LEAA was up and running, its funding grew rapidly during the early 1970s. Although the LEAA never became a key driver of overall spending on criminal justice, given that the vast majority of spending occurs at the state and local levels, it was a channel through which federal policy directly influenced local police. This influence (money, research, and technical assistance) was the reason why the LEAA was first created. Direct state and local expenditures on criminal justice also grew rapidly during the first half of the 1970s, and when the LEAA spending peaked at $895 million in 1975, the LEAA funds accounted for five percent of state and local spending on criminal justice (U.S. General Accounting Office, 1977).2
After a decade of operation, with billions of dollars in expenditures and a reputation for mismanagement and corruption, the influence of the LEAA was gradually phased out by federal policy makers. After spending more than a year reviewing the agency, in early 1978 the Carter administration devised a plan that maintained the agency’s functions but divided it into three separate organizations, which would be phased into existence over a period of several years. The LEAA would continue to provide money to state and local law enforcement agencies, the National Institute of Justice would oversee all federal crime control research, and the Bureau of Justice Statistics would be a clearinghouse for the data that the LEAA and the Federal Bureau of Investigation (FBI) gathered. All three agencies would report to the Office of Justice Assistance, Research, and Statistics, which had been created in the summer of 1977 (Hinton, 2017).3
The Justice System Improvement Act, passed in December 1979, officially began to phase out the LEAA. The legislation gave state and local governments a three-year window during which they could receive federal crime control grants through the LEAA; thereafter; they were expected to operate their respective law enforcement programs independently. The act reduced the planning requirements that the Safe Streets Act had tied to federal funding so that states would no longer need to submit a criminal justice plan every year, and cities like Los Angeles (CA), Chicago (IL), Atlanta (GA), and Newark (NJ) now provided the federal government with one grant application a year for all criminal justice programs instead of separate proposals (Hinton, 2017).
From 1985 through the end of the 1990s, federal spending on crime policy expanded through the grants to local law enforcement and through increased allocations to the FBI, the Drug Enforcement Agency, anti-drug initiatives of the Department of Defense, and the Bureau of Prisons (Hinton, 2017; U.S. Department of Justice, 2002).
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2 In 1965, the nation spent $4.6 billion on criminal justice; by 1977, the figure had reached $23 billion, or just less than $12 billion in constant 1965 dollars.
3 The LEAA’s budget exceeded even the FBI’s $513 million allocation by nearly a quarter of a billion dollars (Hinton, 2017).
Federal guidance for local law enforcement on law enforcement strategies also persisted in the absence of the LEAA. For example, the National Drug Policy Board that President Reagan convened by executive order in 1987 brought together the attorney general; the secretaries of Defense, State, Housing and Urban Development, Labor, and Education; the CIA director; the national security advisor; and other relevant cabinet officials and consultants to coordinate all activities concerning public safety needs. The strategies the board developed to fight the War on Drugs would play out in the lives of disproportionate numbers of low-income Black and Latino people (Hinton, 2017).
CURRENT GRANT PROGRAMS
In many ways, the federal administration’s grant-making mechanisms of the 21st century reflect the system created under the LEAA. Despite a national push toward criminal justice reform that highlights community partnerships and strategies for addressing crime (Office of Community Oriented Policing Services, 2015) and victimization (Holder et al., 2013), as well as improving the outcomes of reentry populations (The National Reentry Resource Center, 2018), the many tenets of federal grant funding that led to calls for change in the 1970s and 1980s remain intact today.
Office of Justice Programs
The Office of Justice Programs, which replaced the LEAA and the Office of Justice Assistance, Research, and Statistics, serves as the primary agency vested with the oversight of the vast majority of federal grant programs for local, tribal, and state jurisdictions for reducing and preventing crime (U.S. Department of Justice, 2021). The assistant attorney general, who leads the Office of Justice Programs, provides oversight of four programmatic offices that manage federal public safety grants: the Bureau of Justice Assistance; the Office of Victims of Crime; the Office of Juvenile Justice and Delinquency Prevention (OJJDP); and the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART).4 The offices’ federal grants go to local, tribal, and state jurisdictions via various mechanisms including formula grants, congressionally directed awards, discretionary grants, and cooperative agreements.
Although unified in their mission to support local and state entities in reducing crime and advancing fairness and justice, these programmatic
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4 The Office of Justice Programs also houses the National Institute of Justice, the science agency of the Department of Justice, and the Bureau of Justice Statistics, and statistical agency of the Department of Justice.
offices are each responsible for their own budget planning, staffing, peer review of respective grant programs, and reporting to the Department of Justice, the President’s Office, and Congress. The reach of the grant programs administered by these four offices is expansive. Grants support crime prevention, school safety, crime laboratories, crime victim services, policing operations, the conditions in correctional settings, reentry programs, investigations of wrongful convictions, and a missing persons program.5
Byrne Justice Assistance Grant Program
Today, the primary source of federal funding for local and state jurisdictions is the Byrne Justice Assistance Grant (Byrne JAG) program, which is housed within the Bureau of Justice Assistance. The formula-based grant program was created by the Consolidated Appropriations Act of 2005, which merged the Local Law Enforcement Block Grant program and the Edward Byrne Memorial Grant program (BJA, 2021a). These two grant programs were a continuation of LEAA efforts to support law enforcement agencies with crime control initiatives. The Edward Byrne Memorial Grant was established by the 1988 Anti-Drug Abuse Act to support local and state criminal justice systems in addressing violent and drug-related crimes, and encouraged multi-jurisdictional and multi-state collaborations to support drug control policies (Dunworth et al., 1997). The program was created in honor of a New York police officer who was killed in the line of duty. The Local Law Enforcement Block Grant program was created as part of the amendment to the Violent Crime Control and Law Enforcement Act of 1994 (Gist, 2000). The 1996 Appropriations Act directed the Bureau of Justice Assistance to fund local governments through the block grant program to reduce crime and improve public safety with a competitive grants program based on a jurisdiction’s rate of violent crimes, as recorded in the Uniform Crime Report as Part 1 Violent Crimes (Bauer, 2004).
Like its predecessors, the Byrne JAG program is the federal administration’s principal source of justice grants dedicated to reducing crime and improving public safety. While the origins of the program were dedicated to funding law enforcement, the current program provides local, tribal, and state jurisdictions with resources for a broad array of program areas, including prosecution and courts, corrections, drug treatment and enforcement, planning and evaluation, technology improvement, and mental health programs (BJA, 2021a). The grants offer support for personnel, equipment, supplies, contractual support, training, technical assistance, and criminal justice information systems. The Byrne JAG program, much like other
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federal public safety grant programs over the years, has been criticized for its outdated grant structure and impact in addressing crime (Eisen, 2021; Crowley and Pearl, 2020). Despite recent changes to the program’s areas of emphasis, which stress building strong criminal justice system and community collaborations for reducing violent crime and police policies that promote trust, transparency, and accountability (BJA, 2021c), the way local, tribal, and state jurisdictions use the funds is up to their full discretion. Importantly, the Byrne JAG program is only one of a host of federal grant programs within the Department of Justice that make up the complex web of resources dedicated to public safety.
Other Bureau of Justice Assistance Grant Programs
The Bureau of Justice Assistance administers the largest catalogue of grant programs dedicated to strengthening the criminal justice system (BJA, 2021d). In addition to the Byrne JAG program, its grant programs support law enforcement via programs such as the Smart Policing Initiative, Project Safe Neighborhoods, law enforcement and prosecution programs, and law enforcement and behavioral health collaborations (BJA, 2021e,f,g). The Bureau of Justice Assistance also supports local jurisdictions and states with grants to implement drug courts and reentry programs (e.g., Second Chance Act) and the reinvestment of resources to improve criminal justice efficiency and reduce recidivism (BJA, 2021h, 2018; Ames, 2019; D’Amico and Kim, 2018; Lindquist et al., 2018). While some of its program areas, like the Second Chance Act program, are authorized by Congress to be evaluated, the impact of other public safety grant programs that it manages remains relatively unknown.
Programs Supporting Juvenile Justice, Crime Victims, and Sex Offense Enforcement
OJJDP, as discussed in Chapter 5, is the federal agency responsible for supporting juvenile justice systems and juvenile delinquency prevention programs6 (OJJDP, 2019). OJJDP is one of the few programmatic offices within the Office of Justice Programs to have its grant-making program externally reviewed. A 2013 review by the National Research Council found that OJJDP’s grant-making capacity was limited given the agency’s reauthorization status and decreased appropriations funding over the years to support its formula and block grants program, as well as additional authorized programs like the Missing Children’s Assistance Act and the Victims of Child Abuse Act (NRC, 2013).
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6 Juvenile Justice and Delinquency Prevention Act, 1974, Public Law 93-415, 88 Stat. 1109.
The two additional programmatic offices within the Office of Justice Programs that administer federal grants serve specific sectors. These are the SMART Office and the Office for Victims of Crime. The SMART Office was authorized by the Adam Walsh Child Protection and Safety Act of 2006 to support jurisdictions with sex offender management efforts, in particular policies that enhance sex offender registration and notification.7 The Office for Victims of Crime administers the Crime Victims Funds, which come from the fines and penalties paid by individuals processed in the federal system. With an annual budget of $2.1 billion in 2020, the Office for Victims of Crime supports victim compensation and assistance programs, as well as capacity-building efforts to serve diverse victims across communities.8
Separate Offices Administering Public Safety Grants
Outside of the Office of Justice Programs, two additional offices administer public safety grants. The Office of Community Oriented Policing Services (COPS) was created by the Violent Crime Control Act and Law Enforcement Act of 1994 to support law enforcement agencies with grants for technical training and assistance. This office also administers grants to hire additional officers through its COPS Hiring Program (Office of Community Oriented Policing Services, 2014). The Office on Violence Against Women, which was created to implement the 1994 Violence Against Women Act, administers both formula and discretionary grants for services dedicated to address and reduce domestic violence, dating violence, sexual assault, and stalking (Office on Violence Against Women, 2018). Nongovernmental entities, like nonprofit organizations and community-based organizations, as well as local, state, and tribal governments, are eligible to receive funding from the Violence Against Women Act, although it should be noted that not all nonprofit organizations are community-based, nor do all have significant community involvement in their operations. Furthermore, nongovernmental community-based initiatives may not be equipped to successfully obtain federal funding; grant mechanisms can be dauntingly complex to navigate.
Unfortunately, the federal administration’s capacity to track and measure the impact of the various grant vehicles is limited at best. While some information about select federal grant programs is available from reports by the U.S. Government Accounting Office, investigations by the Office of Inspector General, program evaluations, and external stakeholders’ reports of programs (e.g., Byrne JAG funds), both the full scope of where funds are being invested and their impact on crime reduction are unknown. Based on reports from the National Criminal Justice Association, it is estimated
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7 See https://smart.ojp.gov/about
8 Victims Compensation and Assistance Act of 1984, Public Law 98-473, Section 20111.
that two-thirds of annual Byrne JAG funds are dedicated to supporting law enforcement (National Criminal Justice Association, 2021).
Formula-Funding and Categorical Grants-in-Aid
The Byrne JAG Program is a good example of a formula-funding program providing resources for states and local governments to address their own public safety needs. Funds appropriated by Congress for the Byrne JAG program are allocated among the states and U.S. territories based on each jurisdiction’s share of violent crime (50%) and its share of the nation’s population (50%). For the states, the program further stipulates that 60 percent of the total allocation be retained by the state government and 40 percent be set aside to be allocated to local governments. However, states may retain only award amounts that bear the same ratio of total expenditures on criminal justice by the state government in the most recently completed fiscal year to the total expenditure on criminal justice by the state government and units of local government within the state in such year. Data from fiscal year 2021 allocations indicate that 56 out of 64 total states and territories received Byrne JAG funding (BJA, 2021i). Data from 2020 show that 1,362 local governments were eligible for awards, either directly or through a joint award with other governments within their counties.
An example of categorical grants-in-aid is the Bureau of Justice Assistance’s Smart Suite of grant programs. These competitive grants are made on a peer-reviewed basis within budgetary limits based on the congressional appropriation to each individual Smart Suite program. The bureau specifies the goals, objectives, tasks, and deliverables for each program. Applicants compete based on their problem statement, project design, applicant capabilities and competencies, and soundness of budget. These characteristics limit the opportunity of local communities to pursue their own goals and objectives, as many of the communities most in need of support lack the grant-writing skills, project management skills, and even the Internet access necessary to submit a viable proposal in a competitive arena.
ENHANCING THE FEDERAL SYSTEM TO ADDRESS RACIAL INEQUALITY IN THE SYSTEM
Aligning the Department of Justice’s federal grant-making infrastructure with crime reduction and prevention programs that show promise in reducing inequality, as outlined in Chapters 3 and 4, would go a long way toward addressing the needs of communities and advancing criminal justice reforms. Enhancing the grant-making system will require addressing key features of the federal grants process that hinder an effective use of resources, including the limited access by non-criminal justice entities.
Barriers to Funding
Relative to other federal grant programs, the majority of the Department of Justice administrated grants are relatively small in size. For example, the Byrne JAG formula program has two categories for eligible units of local government: a category for less than $25,000 and a separate category for amounts of $25,000 or more (BJA, 2021a; NCJA, 2021). The total allocation for the 2020 Byrne JAG funding was approximately $244.2 million, of which $238.7 million went to states and $5.5 million went to U.S. territories and the District of Columbia (Cooper, 2021). While federal competitive grants provide jurisdictions with more resources to support specific areas like violence prevention and reentry programs, a competitive grant structure significantly favors jurisdictions with grant development capacity and a grant infrastructure, resulting in a disparate patchwork of federal support that benefits a select few jurisdictions and agencies.
The vast landscape of grant programs across various offices within the Department of Justice means each grant program is tied to a programmatic office with its own mission and funding priorities, as authorized by Congress and key stakeholders. The structure of the Department of Justice and the bureaus makes it so that grants largely go to these agencies, without any one bureau focused on community crime prevention. The siloed nature of the funding mechanisms for public safety leaves much room for inefficiency, duplication, and competing efforts. Given the expansive areas of federal support, programmatic offices may find themselves addressing the same problem (e.g., gun violence) but taking radically different approaches (The White House, 2021). Further, the varied sources of funding across offices create barriers for collaboration and coordination within the Department of Justice/Office of Justice Programs and across departments, like the Department of Health and Human Services and the Department of Education. Box 9-1 illustrates an example that shows how the positioning of federal responsibilities for a public safety issue can shape mission and approaches.
Despite a continued focus on community partnerships to reduce crime, community organizations have relatively few opportunities to receive Department of Justice grant dollars. As a result, the existing grant funding mechanisms hinder advancing community-based and community-led efforts to reduce crime that could offer alternatives to traditional crime policy responses. Since states or units of local government must serve as the lead agencies applying for key federal funding programs, like Byrne JAG grants, community organizations are in essence barred from assuming a leadership role in standing up programs geared toward reducing crime in their communities.
Readily accessible information on federal grants programs as reported by the Department of Justice/Office of Justice Programs is currently scant (Eisen,
2021; Crowley and Pearl, 2020). Data and other information about federal dollar investments and how those funds impact public safety and system-related processes and outcomes directly impact government and community-led strategies. For example, policy makers as well as community members need to have easy access to information about the type and the amount of federal dollars that have been awarded in their jurisdiction, the purpose of those funds, and the impact of those grant dollars on public safety. Information of this type is vital for strategic planning and effective responses for crime reduction. Without a transparent process that illustrates where grants for public safety are going, the federal grant-making process will remain a black hole of investment and continue to erode public trust.
Moreover, the Office of Justice Programs’ process for budgeting and appropriations is fast paced, comprising a series of quick and continuous steps involving the Department of Justice, the Office of Management and Budget, the President, and Congress (Office of Justice Programs, 2021b). The planning of the budget and budget submission, known as Spring Call, runs from March through June. This process involves the planning of a budget two years into the future, which makes the allocation of funds for current and immediate matters for addressing public safety virtually impossible. Further complicating the appropriations process are continuing resolutions, known as CRs. This form of appropriations temporarily funds the federal government in the absence of a signed appropriations bill. The routine use of CRs results in programmatic offices being unable to spend their budgets as planned for a full year and consequently produces great uncertainty about funding allocation.
Further Implications of These Barriers
There are several important practical implications of the Department of Justice/Office of Justice Programs federal grant-making system. Much like the original LEAA program, current grant resources continue to overwhelmingly fund policies and programs that prioritize traditional system responses, such as apprehension, prosecution, and confinement. If jurisdictions are seeking funds to support such policies, the existing funding programs will advance such policies.
However, if jurisdictions are looking for funding to support policies and programs outside of the criminal justice system, current Department of Justice grant dollars will be limited. Consequently, by primarily funding government entities (i.e., criminal justice organizations), the Department of Justice is prioritizing those investments and de-emphasizing non-system interventions to reduce crime and inequality, in particular those created, led, and implemented by community organizations. Community organizations, including advocates, seeking alternatives to current criminal justice
practices have limited access to resources despite the important role they play in preventing and reducing crime. In the end, the longstanding practice of funding criminal justice agencies, in particular law enforcement agencies, continues despite calls for alternatives to criminal justice system responses and community-led innovations to address crime.
Lastly, modifying existing grant conditions or structures to incentivize law enforcement agencies to partner with community organizations, collect and report data, or spend their funds in certain ways might face constitutional roadblocks. Generally speaking, agencies through their congressionally vested power may place conditions on federal funding given to states and private entities. However, courts reviewing the constitutionality of a condition will assess whether the imposed condition meets four general constitutional limits: (1) the statute provides clear notice of the condition; (2) the condition is related to the purposes of the underlying spending; (3) the condition does not coerce state or local governments; and (4) the condition does not violate any independent constitutional bar, or the related unconstitutional conditions doctrine (Killion, 2021).
Of these four criteria, conditions on Byrne JAG funding are most likely to run into coercion or anti-commandeering issues under the third prong, which derives from the 10th Amendment’s reservation of certain legislative powers to the states.9 Case law dictates that Congress may offer states sizeable incentives to carry out federal policies as long as states ultimately remain free to opt out by declining the federal funding. To preserve the dual federalist structure of government inherent in the Constitution, courts generally hold that Congress may not “compel” states to adopt certain policies by legislating on its behalf nor penalize states unduly by withholding federal funds. As the Supreme Court first clearly articulated in South Dakota v. Dole, sometimes the “financial inducement offered by Congress in the spending context might be so coercive as to pass the point at which pressure turns into compulsion.”10 When states lack legitimate choice to accept or forego federal funding, financial inducements and grant programs turn into unconstitutional compulsion.11
For example, Byrne JAG grant conditions imposed by the attorney general in fiscal years 2017 and 2018 were challenged for infringing on the anti-commandeering principles of the 10th Amendment. One set of challenges revolved around use of the certification condition of the Byrne JAG application to ensure compliance with 8 U.S.C. § 1373, which prohibits
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9 U.S. Constitution Amendment X.
10South Dakota v. Dole, 483 U.S. 203, 211 (1987; quoting Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937)).
11 Id.; See also New York v. United States, 505 U.S. 144, 167 (1992) and NFIB v. Sebelius, 567 U.S. 519 (2012).
states and localities from restricting the exchange of information about an individual’s citizenship or immigration status with federal authorities.12 The certification aspect of the Byrne JAG application provides for “certification, made in a form acceptable to the Attorney General” that “the applicant will comply with all provisions” of the Byrne JAG statute13 and “all other applicable Federal laws.”14 The Department of Justice argued that this language authorized the conditioning of Byrne JAG funds on compliance with 8 U.S.C. § 1373 because it was one such “applicable Federal law.”15 Appellate courts across the country were split on whether this Department of Justice grant condition was consistent with the underlying Byrne JAG statute. Some courts determined that the attorney general had exceeded his authority and violated the Constitution in imposing the certification condition.16 Others found the move to violate neither the Department of Justice’s statutory authority nor the constitutional separation of powers.17
In sum, federalism concerns cabin the ability to condition funding for states and localities, and any policy-oriented changes to Byrne JAG allocations may implicate constitutional challenges from recalcitrant states or local law enforcement agencies.
Opportunities
Today the nation finds itself at a moment in which it has a considerable opportunity to reduce racial inequality in the criminal justice system. As a result of significant investment in research and data collection, quite a lot is known about the causes and correlates of crime and criminal involvement, certainly enough to know the significance of mental health, substance abuse, poverty, family breakdown, and economic and housing insecurity, among other factors. A great deal is known, as well, about complements to policing. Investments in research and data have yielded insights into the onset of and desistence from involvement in criminal behavior as well as the intensity of such involvement.
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12 See 8 U.S.C. § 1373(a). (“Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”)
13 34 U.S.C. § 10151-10158.
14 34 U.S.C. § 10153(a)(5)(D).
15 See City of Chicago, 961 F.3d at 897. (“Under the Attorney General’s reasoning, Congress itself incorporated § 1373 into the Byrne JAG program by requiring compliance with ‘all other applicable federal laws.’”)
16 City of Providence, 954 F.3d at 39; City of Philadelphia, 916 F.3d at 291; City of Chicago, 961 F.3d at 931.
17New York v. DOJ, 951 F.3d 84, 111 (2d Cir. 2020).
As the preceding chapters have shown, the response to public safety challenges seems curiously “stuck.” Funding from the Department of Justice still focuses on promoting public safety and community wellness through policing, prosecuting, adjudicating, and correcting. The Department of Justice should avoid the proliferation of criminal justice system silos that undermine coordination and, when coupled with complex and burdensome processes for accessing federal funding, place the locus of control in Washington bureaucracies. Even so, the Department of Justice could consider promulgating rules or using existing incentive structures, like the Byrne JAG program, to condition funds on compliance with existing antidiscrimination laws or reporting requirements. Although broad-sweeping financial modifications could face scrutiny in the courts, milder versions of rules that impact an overall small percentage of total funding would likely withstand legal challenges and constitutional scrutiny.18
While such financial incentives could result in justice (of a sort), public safety, community wellness, and racial equity may well depend more on community-based and community-led anti-violence programs funded through other executive departments, such as Health and Human Services, Housing and Urban Development, Labor, and Education, or through agencies such as the Substance Abuse and Mental Health Services Administration or Centers for Medicare & Medicaid Services. This is not an “either/or” choice; rather, it is a question of balance and relative emphasis.
However, it is important to note that executive agency actions also face anti-coercion and anti-commandeering obstacles similar to those discussed in the previous section. For example, the Department of Health and Human Services recently amended its Conscience Rule to explicitly allow enforcement of 30 federal “conscience and antidiscrimination” provisions through denial, temporary withholding, or termination of the federal funds it administers.19 This new rule was challenged in three different district courts, all of which held the conditions to be invalid based on various separation of powers, clear notice, and anti-coercion concerns.20 While the rule is currently being litigated, funding for community wellness structured to encourage voluntary participation should avoid legal challenges and ensure program longevity.
In addition to broadening the scope of funding sources beyond the Department of Justice, reducing the barriers to accessing funding, regardless
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18 In South Dakota v. Dole, Congress would initially withhold five percent of federal highway funding for states that did not maintain a minimum legal drinking age of 21. This percentage was deemed constitutional because it was only a small percentage of federal funding amounting to pressure but not undue coercion.
19 2019 Conscience Rule, 84 Fed. Reg. at 23, 272.
20 See New York v. HHS, 414 F. Supp. 3d 475, 532 (S.D.N.Y. 2019); City & Cty. of San Francisco v. Azar, 411 F. Supp. 3d 1001, 1024 (N.D. Cal. 2019); and Washington v. Azar, 426 F. Supp. 3d 704, 720 (E.D. Wash. 2019).
of source, is equally important to building community involvement. In the case of formula-funded programs, which agency receives the funds from the federal government and how transparent is the distribution process at the state or local level? Are community-based organizations able to apply for funding by themselves or only in partnership with a governmental entity? How burdensome are the application and accountability requirements? These questions apply equally to categorical grants-in-aid.
Illustrative Example: The Office of Juvenile Justice and Delinquency Prevention
The formation of the OJJDP in 1974 offered the federal government an opportunity to address the problem of crime and violence among young Americans by confronting related problems in urban public school systems, public housing, and low-income neighborhoods. Instead, the Juvenile Justice and Delinquency Prevention Act of 197421 shifted the federal government’s approach to delinquency toward punishment, empowering law enforcement authorities to intervene in public institutions serving youth in low-income urban communities.
With an initial $380 million, three-year outlay for delinquency prevention and control programs, the Juvenile Justice and Delinquency Prevention Act of 1974 created the modern American system of juvenile justice. Prompted by new research on criminality among urban youth of color and concern that “wayward” White youth were being mistreated by the criminal justice system, the legislation supported the widespread implementation of juvenile prisons, foster and protective care programs, and shelter facilities. It also established the National Institute for Juvenile Justice and Delinquency Prevention to research and evaluate various programs, acting as a clearinghouse to guide state and local governments as they designed new youth detention and rehabilitation programs (Congressional Quarterly Almanac [1974] as cited in Hinton [2017]).22
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21 Public Law 93-415, 88 Stat. 1109.
22 A special amendment to the 1974 act strengthened the influence of the federal government and private consultants at all levels of the prison system. The legislation created a National Institute of Corrections, which brought together an advisory board from the spectrum of federal law enforcement and criminal justice agencies and private-sector groups to set priorities within carceral institutions and award contracts to firms to implement those priorities. Designed to operate as a small consultant group appointed by the attorney general and removed from public accountability in the Bureau of Prisons, the institute served as an information clearinghouse and trained law enforcement and social service personnel. In order to equip penal authorities with stronger tools to manage unprecedented numbers of inmates, the institute supported research on a range of pressing issues, including correctional security, classification systems, and gang control programs. Along with the Office of Juvenile Justice and Delinquency Prevention, also created by the 1974 Act, the National Institute of Corrections has endured as a legacy of the punitive reforms of this period.
The debates that emerged in Congress about the purpose and targets of the federal government’s youth crime intervention marked a critical turning point in the direction of the War on Crime, unearthing questions that had yet to be fully resolved about whether the federal programs should respond to delinquency as a social welfare or crime control issue. The Department of Health, Education, and Welfare had directed federal delinquency programs since the 1960s, and the House version of the legislation proposed that this department continue to anchor the national juvenile justice system. The Senate’s more punitive vision for the nation’s juvenile justice system ultimately prevailed, transferring juvenile justice authority to the LEAA.
According to Hinton (2017), the decision to place the Office of Juvenile Justice within the LEAA did not pass through Congress without vocal objections across party lines. New York’s Democratic congresswoman Shirley Chisholm consistently pointed out that the LEAA itself was characterized by inefficiency and mismanagement. And on the day his fellow representatives conceded Health, Education, and Welfare (HEW) as the agency responsible for administering the juvenile justice system, Congressman William Steiger issued a grave warning. “By eliminating HEW,” the Wisconsin conservative said on the House floor, “we have done serious damage to our efforts to prevent people from becoming delinquents instead of simply seeing them wound up in the juvenile justice system as it is now.”23
However reluctant some members of Congress may have been about the decision to treat delinquency as a crime control problem rather than a social welfare concern, the final version of the bill reflected the ideas of an ever-growing consensus of policy makers, law enforcement officials, and scholars that the remnants of the War on Poverty had worsened the crime problem, that Black youth were responsible for the majority of the nation’s crime, and that the focus on rehabilitation and prevention in previous delinquency programs had been misguided.24
The shift in control of anti-delinquency programs from Health, Education, and Welfare to the Department of Justice vastly enhanced the power and influence of the latter. OJJDP was charged with disbursing $600 million in block grants to the states—a striking increase over the
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23 Hearings before the Subcommittee on Equal Opportunities of the Committee on Education and Labor, House of Representatives, 93rd Cong., 2nd sess., on HR 6265 and HR 9298, held in Los Angeles, March 29, and Washington, DC, April 21, May 1, 2, 8, and 21, 1974, 434; see Hinton (2017).
24 On July 1, an overwhelming majority (329 to 20) approved the bill. Albert H. Quie, a Republican from Minnesota, argued that “juvenile justice and delinquency prevention programs are not separate entities and should not be treated separately,” and introduced an amendment that shifted responsibility to the LEAA from Health, Education, and Welfare. The House rejected the transfer, with only 114 Republicans and 30 Democrats supporting the measure (Congressional Quarterly Almanac [1974] as cited in Hinton [2017]).
initial $14 million Congress had allocated for delinquency programs in 1969. Congress proceeded to allocate nearly $900 million to national crime control in 1974, and the department enjoyed its largest-ever operating budget. To make youth crime control a national priority, all 50 states received a minimum of $200,000 to establish juvenile delinquency advisory boards that brought together relevant public and private figures to plan and implement programs—much like the state planning agencies the Safe Streets Act of 1968 has imposed on governors. Since previous experiences in block-grant funding demonstrated that states could not be relied upon to follow federal policy makers’ preferred strategies for the War on Crime or to focus on low-income urban communities, the office awarded block grants to states based on age and income characteristics alone. States with larger youth populations and citizens living at or below the poverty level received a greater proportion of funds.25
With the 1974 Act, Congress deinstitutionalized status offenses, or crimes that applied only to minors (such as curfew violations and truancy), by supporting diversion programs, community-based detention, and foster care. Federal policy makers also encouraged these types of alternatives for nonviolent or minor offenders, whom they believed could be better rehabilitated outside of formal juvenile prisons. The Department of Health, Education, and Welfare funded these types of community-based rehabilitation programs for youth who had been labeled “troublesome” or “acting out”—the only aspect of the national juvenile delinquency program where the social welfare agency retained its authority. Yet in practice, rehabilitative institutions were widely implemented in suburban and rural communities, and the “troublesome” label was applied to White offenders on a far more frequent basis than to their Black and Latino counterparts (Weis and Sederstrom, 1981).26 The lack of these sorts of viable community-based alternatives in low-income urban communities exacerbated the racial disparities in the sentencing and treatment of young offenders. Social service and law enforcement authorities had few options outside of processing young residents through the criminal justice system.
Indeed, the formal law enforcement system for young offenders that Congress designed in 1974 resulted in more Black and Latino youth
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25 This amounts to roughly $850 million in today’s dollars (Juvenile Justice and Delinquency Prevention Act of 1974).
26 The terms “hard core delinquent” and “acting out youth” are from the report Rural Programs (OJJDP, 1979). Health, Education, and Welfare funded 90 percent of the cost for special programs and facilities for runaways. Steven Nicholas, associate director of Focus Runaway House in Las Vegas, in House Committee on Education and Labor, Juvenile Delinquency Prevention and Runaway Youth Hearings before the Subcommittee on Equal Opportunities, 93rd Cong., 2nd session, held in Los Angeles, March 29; Washington, DC, April 21, May 1, 2, 8, and 21, 1974, 272.
receiving criminal justice records, interacting with the courts, and being formally incarcerated even though crime was increasing faster in suburban and rural areas in the mid-1970s.27 Under the terms of the legislation, while the social welfare arm of the federal government treated White and middle-income youth, it was the punitive arm that handled young people from segregated urban neighborhoods.28 In addition, the national anti-delinquency program generated an explosion of privately owned juvenile shelters and community-based custody facilities. By 1978, 90 percent of the delinquency prevention programs funded by the Department of Health, Education, and Welfare were administered by private groups, responsible for some 130,000 youth, or about one-tenth of the population of juvenile offenders detained in public facilities (U.S. Congress, Senate Committee on the Judiciary, 1980; U.S. Congress, House Committee on Education and Labor, 1978).
Although young people in the juvenile justice system tended to come from backgrounds marked by poverty, unemployment, and unstable families, Black and Latino youth came to experience this system in ways markedly different from their White counterparts. The federal programs supported by the 1974 legislation focused the majority of rehabilitative and prevention efforts on White status offenders, who had a much greater chance of being successfully diverted from state detention facilities. As the number of young people in private custody increased nearly 10 percent between 1975 and 1977, the population of Black youth in penal
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27 As measured by the FBI’s crime index, large cities witnessed a 12 percent crime increase in 1974, while suburban and rural areas reported a 20 percent crime increase that year (Federal Bureau of Investigation, 1975, as cited in Hinton, 2017).
28 The administration of the Runaway Youth Program (RYP) that was established in Title III of the 1974 legislation illustrates the way the policy exacerbated racial inequities in the criminal justice system. The RYP created local centers that provided runaway youths shelter and counseling while allowing them freedom of movement and, often, the opportunity to remain in school. They were also provided with meals, therapeutic counseling, clothing, transportation, medical care, legal counseling, job counseling and training, follow-up and aftercare services, placement services, and 24-hour hotlines. According to Hinton (2017), “Policymakers hoped the Runaway Youth Program would provide more humane and thrifty alternatives for young people. The constituency of the Runaway Youth Program shelters matched the gender and racial demographics of the United States in the mid-1970s to a far greater degree than other federal crime control programs. Approximately 60 percent of the young people served by the program were women, 73 percent were white, 14 percent were black, and 7 percent were Latino. Still, framing the problem as an issue that primarily affected middle-class young people gravely underserved black and Latino youth, who left home on a far more frequent basis than their white counterparts. Here was an instance where targeting urban youth of color might have been appropriate and beneficial. Instead, the federal government exacerbated existing discrepancies by locating most of the runaway youth programs in rural areas. The National Statistical Survey on Runaway Youth found that Latino youth had the highest incidence of running away, at a rate of 4.6 percent, with black youth following closely behind at a rate of 3.2 percent, and white youth the lowest at a rate of 2.9 percent (Opinion Research Corporation, 1975; Oversight Hearing on the Runaway Youth Act, 1978).”
institutions continued to rise. While Black youth constituted only one-fifth of all children under private supervision, they amounted to one-third of all youth in public facilities. Due to the targeted deployment of police patrols, Black youth were more likely than their White counterparts to have prior criminal referrals, to be charged with violent crimes, to face formal court proceedings, and to be institutionalized in secure, state-run detention facilities (Hinton, 2017). The legislation also led to the sentencing of disproportionate numbers of Black youths as adults beginning in the mid-1970s by lowering the age threshold for violent federal crimes, so that any 16-year-old whom the attorney general deemed to be particularly “dangerous to the community” could be tried as such—a provision that a number of states quickly adopted.29 In effect, young White people experienced the system through treatment and prevention while children and teenagers of color were criminalized.
CONCLUSION
In the current context, the federal government has an important role to play in shaping the narrative around criminal justice reform efforts. The 2021 Executive Order on Advancing Racial Equity and Support for Under-served Communities through the federal government is a first step. The Department of Justice and similarly situated federal agencies with charges to support justice-involved populations should use their bully pulpit to disseminate findings about evidence-based programs that work to reduce racial and ethnic disparities, promote model jurisdictions implementing effective reforms, and support innovative solutions that could be tested, evaluated, and scaled. In doing so, they could emphasize that the pursuit of public safety requires addressing racial and ethnic disparities throughout the criminal justice system.
RECOMMENDATION 9-1: To improve the grant-making process for communities seeking to reduce racial inequalities in crime and justice, the Department of Justice should enhance performance measures, build in transparency mechanisms, and specify program areas.
Some settings—for example, in Indigenous communities—may require additional flexibility, and in these cases, block grants may be necessary to support innovation and tailored approaches to the community’s needs.
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29 The Department of Labor defined “disadvantaged” as “those on public assistance and those whose family income levels are below the poverty guidelines established under criteria issued by the Office of Management and Budget” (Hinton, 2017).
