Last week was President Obama's prison reform week, with events scheduled in support of his push for congressional action on prison reform. On Monday, President Obama commuted the sentences of 46 non-violent drug offenders. On the following day, he addressed the NAACP convention in Philadelphia on the need for prison reform. And on Thursday he visited the Federal Correctional Institution in El Reno.
The prison was locked down, and the president met with only six nonviolent drug offenders who had been selected to participate in a discussion with him as part of a Vice documentary on the criminal justice system that will be shown this fall on HBO. According to a report in the New York Times:
The six seemed to make an impression. “When they describe their youth and their childhood, these are young people who made mistakes that aren’t that different than the mistakes I made and the mistakes that a lot of you guys made,” Mr. Obama said afterward. “The difference is they did not have the kinds of support structures, the second chances, the resources that would allow them to survive those mistakes.”
There is another difference, Mr President: the federal government has not always bribed local law enforcement agencies to make marijuana arrests. And for all of the proposed reforms, which are needed, I heard not one word about the easiest and most obvious way way to reduce our prison population: don't put them in jail for possession in the first place.
And don't incentivize local and state charges with federal funds. More below.
According to Michelle Alexander, author of
The New Jim Crow: Mass Incarceration in the Age of Colorblindness, local law enforcement agencies were not anxious to get on board President Reagan's war on drugs, feeling that real crimes like murder, rape, and violent assaults posed greater threats to their communities. In order to encourage participation, the Reagan administration decided to bribe the local law enforcement agencies with cash grants.
In 1988, at the behest of the Reagan administration, Congress revised the program that provides federal aid to law enforcement, renaming it the Edward Byrne Memorial State and Local Law Enforcement Assistance Program after a New York City police officer who was shot to death while guarding the home of a drug-case witness. The Byrne program was designed to encourage every federal grant recipient to help fight the War on Drugs. Millions of dollars in federal aid have been offered to state and local law enforcement agencies willing to wage the war. This federal grant money has resulted in the proliferation of narcotics task forces, including those responsible for highway drug interdiction. Nationally, narcotics task forces make up about 40 percent of all Byrne grant funding, but in some states as much as 90 percent of all Byrne grant funds go toward specialized narcotics task forces. In fact, it is questionable whether any specialized drug enforcement activity would exist in some states without the Byrne program.
In 2005, the Local Law Enforcement Block Grant was combined with the Edward Byrne Memorial State and Local Law Enforcement Assistance Program to become the Edward Byrne Memorial Justice Assistance Grant (JAG) Program. The JAG program has distributed hundreds of millions of dollars in grants to both state and local governments. The amount appropriated varies each year, but was boosted by an infusion of $2 billion as part of the American Recovery and Reinvestment Act of 2009.
According to an in-depth look at the results of this program by Aaron Cantú for Alternet, marijuana possession seems to be the charge of choice to beef up the arrest statistics in order to earn grant dollars.
Culling together data from Byrne grant state annual reports and a 2013 ACLU report called “Marijuana Arrests in Black and White” reveals an ugly reality about the war on drugs: through the promise of Byrne grant funding, the federal government is using tax dollars that incentivize local police forces to arrest non-criminal young men of color.
Aaron Cantú claims that performance is evaluated and awards are granted based on the number of offenders arrested, the number prosecuted, the number of drug seizures, quantity of drugs seized by weight and type, and the value of funds and assets forfeited.
[S]tates can only renew their Byrne grant funding if they impress the government with their state annual reports. States show they’re putting funds to good use by touting the number of drug arrests made and prosecutions opened, along with the volume of assets and drugs seized. This funding lifeline has shifted policing tactics to focus heavily on the apprehension of low-level drug offenders, especially on those in possession of the most benign and abundant illegal drug: marijuana.
However, that is not quite correct. Grants are distributed based upon a state's share of the nation's violent crime (using FBI data) as well as its share of the total population. Adjustments are made on certain other factors, none of which include marijuana or any other drug arrests or seizures. By law, after all adjustments are made, 60 percent of the funds go to state governments and 40 percent to local governments.
States are required to report data on performance to the Bureau of Justice Administration (BJA) which handles the grants, but only for purposes of transparency. According to the May, 2014 fact sheet issued by the BJA:
Reporting Requirements: JAG recipients are required to submit quarterly performance metrics reports, quarterly Federal Financial Reports (SF-425s), quarterly performance reports, and an annual programmatic performance report. Detailed reporting information can be found here: JAG Reporting Requirements. Although JAG grantees and subgrantees are required to report on quarterly accountability measures through BJA’s Performance Measurement Tool (PMT), those reports are intended to promote greater transparency about the use of JAG funds and do not determine the amount of JAG funds allocated to a state and/or localities.
However, even though the BJA makes clear that the statistics are for transparency only and do not determine funding, one has to wonder how clearly that filters down to the local precinct, where the
statistics are gathered. Especially since it is likely that the original program did award grants based on arrest data. And the allocation of the JAG dollars within the seven different programs seems to clearly favor law enforcement with the lion's share of the funding.
Based on the figures included in the BJA's State and Local Funding Awards Report April 2012–March 2013, here is a breakdown of the local agency JAG funding by program area for grants representing awards from fiscal year 2009 through 2012:
Local JAG Funding by Program Area
And the breakdown of the separate state grants on the same basis:
State JAG Funding by Program Area
From the same report, here are the seven program areas that are funded:
1.Law Enforcement: Activities include creating or fostering law enforcement programs, hiring or maintaining police officers, investing in equipment or technology, conducting or attending law enforcement–related training, funding multijurisdictional task forces, and reporting data on seizures.
2. Courts (Prosecution, Defense, and Indigent Defense): Activities include funding for defense and indigent defense as well as the hiring of personnel (i.e., court clerks, investigators, prosecutors, and public defenders), paying overtime, investing in equipment or technology, and training personnel.
3. Crime Prevention and Education: Activities include crime prevention programs or campaigns, and/or publication and dissemination of educational materials.
4. Corrections and Community Corrections: Activities include corrections and programs such as reentry that fund services ranging from educational and vocational training to employment and housing placement.
5. Drug Treatment and Enforcement: Drug treatment activities include treatment (inpatient or outpatient) as well as clinical assessment, detoxification, counseling, and aftercare. Drug enforcement activities include task forces and seizures.
6. Program planning, Evaluation, and Technology: Activities include planning and conducting evaluations and making technology improvements.
7. Crime Victim and Witness Programs: Activities include providing legal, medical, counseling, advocacy, or educational services to crime victims and/or witnesses. Training is an important component of these services, including training individuals and distributing training materials appropriate for crime victims and/or witnesses.
When you take a closer look at how the dollars allocated to law enforcement are spent, it is clear that the main focus continues to be the war on drugs. The
National Criminal Justice Association, a special interest group, collected data on the Byrne JAG spending in law enforcement nationwide and found that the money from fiscal year 2012 was divided up as follows:
| 48% |
Drug & Gang Suppression/Enforcement |
| 17% |
LE Equipment and Technology |
| 17% |
LE Operations/Hiring/Retention |
| 7% |
Management & Support Services (Crime Lab/Fusion Centers) |
| 4% |
Corrections, Community Corrections & Re-entry |
| 3% |
Specialty Operations (Internet Crime, Human Trafficking, Rx Monitoring) |
| 2% |
Juvenile Delinquency |
| 1% |
Prevention and Treatment Services |
| 1% |
Information Sharing and Research |
So, regardless of the bold print in the BJA guidelines, it is clear that these federal funds are being spent to lock up young men of color, regardless of how much use is made of violent crime statistics in the initial allocation. And that Aaron Cantú was correct when he wrote:
This funding lifeline has shifted policing tactics to focus heavily on the apprehension of low-level drug offenders, especially on those in possession of the most benign and abundant illegal drug: marijuana.
How hard would it be to shift the emphasis to real law enforcement work, like maybe the number of rape kits paid for, collected and tested, or the number of DNA tests processed? Why must the focus be on drugs? Why not place more emphasis on the other areas of the Byrne JAG grants, like drug treatment, re-entry services, and public defenders?
After President Obama's visit to El Reno on Wednesday, according to the New York Times:
He added that "we have a tendency sometimes to almost take for granted or think it’s normal" that so many young people have been locked up. "It’s not normal," he said. “It’s not what happens in other countries. What is normal is teenagers doing stupid things. What is normal is young people making mistakes."
Let's go a step beyond revising mandatory minimums and prison reform, Mr. President, and stop incentivizing local police departments to go into communities of color looking for targets of opportunity. Let us not pay bonuses to lock up young men of color in the first place, because you are right, young people make mistakes. We are adults. We should not be compounding those mistakes with mistakes of our own.
It was President Reagan who changed the trajectory of America as President Obama stated in 2008. His initiatives, such as the war on drugs and the Byrne Grants started us on the road to incarcerating more of our own citizens than any other nation on earth.
Isn't it time that trajectory was changed?
