Preventing Future Fergusons

This post was co-authored by Abigail Finkelman, Program Assistant in the Justice Program at the Brennan Center for Justice at NYU School of Law.

The events unfolding in Missouri have brought all eyes on the issue of law enforcement practices. Racial disparities in our justice system abound. But there is also a subtler dynamic at work: how the government spends money and the very real and human consequences of those decisions.

The bullets fired at Michael Brown, the tear gas thrown at the protesters, and the armored trucks designed for war driving through the streets of Ferguson did not appear out of nowhere. They were purchased.

A complex web of federal crime-fighting grants funnels tens of billions of dollars to states and cities. Most of these programs were created in the 1990s during the height of the War on Drugs. Their explicit aim: to encourage states to increase arrests, prosecutions and incarceration, all in the belief that harsher punishment would better control crime.

Two decades later, ample research shows this belief was mistaken. And now we lock up more people than any other country in the world. One in three Americans have criminal records. One in three black men can expect to spend time behind bars.

Yet these federal grants are often still on autopilot, incentivizing old guard practices that we know now have little public safety value and massive human consequences. The Pentagon-to-police equipment transfer program at the center of the Ferguson controversy, for example, was created in the early 1990s to increase police ability to fight drug gangs. Similarly, the Homeland Security Grant Program, which gives local police money to purchase military equipment, is flush with over $1 billion. All states receive a minimum amount, ranging from .08 percent to .35 percent of the total funds, regardless of how they spend the money.

But the breadth of federal grants extends far beyond military equipment. Federal dollars flow to all types of criminal justice purposes. For instance, the Edward J. Byrne Memorial Justice Assistance Grant, also created during the War on Drugs, largely subsidizes equipment for local police. The program inadvertently creates incentives to increase arrests, prosecutions and mass incarceration.

To be sure, many federal grants pay for important law enforcement programs that help control crime. The question is not whether police should have more money or less money, but rather what they do with that money. Washington should not be in the business of giving out money without knowing where it's going or without condoning its ultimate use.

It's not just peaceniks and liberal hipsters demanding reform. Staunch conservatives -- including the Koch Brothers -- also want crime control policies that reduce unnecessary intrusion. As Rand Paul noted, "Washington has incentivized the militarization of local police precincts by using federal dollars to help municipal governments build what are essentially small armies." Instead, those dollars should incentivize reducing serious and violent crime and reducing unnecessary incarceration and arrests. This week, President Obama agreed with Paul, stating, "I think it's probably useful for us to review how the funding has gone, how local law enforcement has used grant dollars to make sure what they're purchasing is stuff they actually need."

There is a relatively easy way the President can breathe life into this recommendation. It's called Success-Oriented Funding . It's practical, effective, and has bipartisan support . Success-Oriented Funding ties government dollars as closely as possible to clear outcomes and provide incentives to ensure those outcomes are achieved. Law enforcement grants, for example, should be tied to specific goals that reduce violence, ensure fair and appropriate justice, and keep communities safe. The question should be asked: When money is spent purchasing more bullets or more guns, is it going to further these goals? Or is it missing the point?

The President should issue an executive order to review all federal grants -- and other programs distributing government resources - for criminal justice purposes. Where these grants encourage harmful practices or where the goals are unclear, the President should direct federal agencies to recast them in a Success-Oriented Funding model.

The President has authority to reform these grants. An act of Congress -- which may never come -- is not needed. Federal agencies have discretion to implement this model into the grants they administer. In some cases, they may not be able to outright condition funding on meeting specific targets, but they can "nudge" recipients by sending clear signals on how administering agencies want the recipients to use the money.

Ensuring that federal grant dollars are tied to laudable public safety outcomes can help prevent future tragedies. How funding is disbursed is not an academic exercise. At the other end of those dollars are people's lives.