Rachel Harmon Addresses Federal Programs and the Real Costs of Policing
Dozens of federal statutes authorize federal agencies to give billions of dollars in money and resources to local police departments and municipalities in the name of improving public safety. But University of Virginia School of Law police and criminal law expert Rachel Harmon says there are costs that come with these gifts.
In her new paper, " Federal Programs and the Real Costs of Policing ," published in June in the New York University Law Review, Harmon argues that federal programs encourage better coordination of police efforts and make pursuing public safety less financially costly for local communities, but that they also encourage harmful policing.
How significant are federal programs that provide money and resources to local police departments?
Federal public safety programs are substantial. Almost every police department in the United States receives federal money or equipment. In 2010, the last year for which full data is available, the federal government spent $2.8 billion on intergovernmental transfers for police protection, most of which went to local policing. Most of that money is distributed by the Department of Justice, but other federal agencies, from the Department of Defense to the Department of Agriculture, give grants for local policing as well. And that $2.8 billion is just the start. It does not include another $400 million for terrorism readiness, $200 million police departments received in surplus military equipment or $400 million in disbursements from asset forfeiture funds. By contrast, the Department of Justice's Civil Rights Division, which leads federal prosecutions of police officers and sues departments engaged in unconstitutional policing, spends about $12 million a year on police misconduct.
You say that police departments often view federal programs as a boon, but that they may be overlooking non-budgetary costs. Describe what you mean.
These federal programs offer critical funding to local police departments. They also encourage local police departments to support important national priorities, such as preventing terrorism and fighting drug trafficking, without trampling on the American tradition of local control of policing. But the programs also have a darker side. Many of them provide incentives to police departments to conduct additional arrests, intimidate citizens, take private property and conduct electronic surveillance. In developing and implementing these programs, the federal government has focused only on the public safety benefits and the financial costs of the program. The programs are designed as if non-budgetary consequences — what you might call coercion costs — don't exist, even though the public cares enormously about them. Of course, sometimes we want police to make arrests, use force, or intrude upon privacy, but policing should be harm-efficient: it should not coerce us more than necessary to achieve public safety goals. Federal public safety programs ignore that constraint.
If federal programs encourage harmful policing, why do municipalities participate in the programs?
It can be hard for local communities to turn down funding and equipment, and voters often punish politicians who fail to use available federal resources unless the disadvantages of those resources are obvious. The coercion costs of federal programs are anything but obvious. In fact, they are largely invisible. Moreover, some programs bypass local governments altogether and give resources directly to police departments.
Why can it be problematic when federal programs bypass local governments in dealing with police departments?
Ordinarily, police coercion is constrained primarily by local politics. When policing becomes too intrusive, politicians and police chiefs hear from their constituents, and that can lead police departments to adjust their practices in response. For example, Mayor Bill de Blasio was elected in New York in part in reaction to the prior administration's program of aggressively stopping and frisking pedestrians as a crime control strategy, and far fewer New Yorkers have been stopped since. Local political processes are far from a perfect check on intrusiveness, but they are the primary way we govern what the police do.
In order for local governments to function as a check on police coercion, the public must be able to figure out what their department is doing, and local political actors must be able to influence the department. Not only do federal programs encourage especially coercive policing, they sometimes undermine these requirements for local accountability, including by giving resources directly to departments. Police departments are primarily funded by local governments, and that funding gives communities a mechanism of control over police departments. Through the budgeting process, a community can support its policing priorities and reject policing that is likely to be too intrusive in light of local conditions. Federal programs that provide funding and equipment directly to departments enable the police to conduct activities without this form of community input.
What should the federal government do to help prevent negative outcomes related to its programs?
First, federal program design should attend to all of the costs and benefits of policing, including the costs of coercion. We should not spend federal dollars to subsidize unnecessarily harmful policing. This means taking a second look at programs that encourage arrests, asset forfeiture, militarism and surveillance.
Second, federal programs should facilitate rather than erode local accountability. Programs can encourage clear lines of responsibility and transparency for activities that involve multiple agencies, such as those conducted by drug task forces. Moreover, funding should go through municipalities rather than directly to departments. The Obama Administration recently announced that it will change the Department of Defense surplus equipment program to better ensure local buy-in. That's a small step in the right direction. But unless we see the big picture — that all federal public safety programs can increase police coercion and reduce accountability if they are not carefully designed — improvements are likely to be haphazard.
What are you working on next?
I'm continuing to consider ways to keep policing effective and yet make it less harmful. Right now, I'm focused on arrests. We arrest nearly 13 million people a year in the United States. Even apart from any subsequent criminal prosecution, the arrest itself can have significant costs and consequences for suspects, their families and society as a whole. For instance, every arrest involves a potentially dangerous confrontation between an officer and a suspect. Both Eric Garner's death in New York last year and Freddie Gray's recent death in Baltimore arose from efforts to arrest suspects. Yet arrests are often used as a measure of police productivity rather than treated as one of its unfortunate costs. Even critics of the criminal justice system usually take for granted that police officers need discretion to make an arrest for almost any crime. In a new essay, I am arguing that arrests should play a much less central role in contemporary policing than they do now. There are both cheaper ways to ensure that a suspect answers criminal charges and less harmful methods of solving public order problems on the street. That means that we can arrest far fewer suspects and still achieve our public safety goals.