How Did We Get Here?

Today, Mike Konczal of the Roosevelt Institute takes exception to my response (and that of Vice writer Lucy Steigerwald) to Franklin Foer's piece about runaway local law enforcement and the abuse of civil asset forfeiture.

As I explained to Konczal in a longish Twitter exchange last week, I'm not arguing with Foer's point that local law enforcement needs oversight, namely by the federal government. I believe strongly in equal protection and I have argued many times on this blog and other places that local law enforcement can be and is often a pernicious influence on the well-being of a community.The federal government, specifically the Civil Rights Division of the Department of Justice, serves a vital role in the protection of American citizens from the abuses of their own police forces.

But the argument Foer and Konczal make is that because most civil asset forfeiture--Foer's exemplar of local government run amok--is run by and for state and local governments, the remedy for this should be federal. The point of my argument in Rare last week was that civil asset forfeiture is also the policy of the federal government and doesn't look to be abating any time in the near future.

Lost in Konczal's response today is how much of local police policy is driven by federal intervention. COPS grants, Byrne Grants, the War on Drugs, the 1994 Omnibus Crime Bill all had and continue to have direct influence on where and for what purpose policing happens.

Take these highlights of the 1994 Crime Bill, courtesy of Mariame Kaba:

1. $10.8 billion in federal matching funds to local governments to hire 100,000 new police officers over 5 years.
2. $10 billion for the construction of new federal prisons.
3. An expansion of the number of federal crimes to which the death penalty applied from two to fifty-eight (the bill also eliminated an existing statute that prohibited the execution of mentally incapacitated defendants).
4. A three strikes proposal that mandated life sentences for anyone convicted of three “violent” felonies.
5. A section that allowed children as young as thirteen to be tried as adults.
6. The creation of special courts able to deport noncitizens alleged to be “engaged in terrorist activity” on the basis of secret evidence.
7. Established guidelines for states to track sex offenders. Required states to track sex offenders by confirming their place of residence annually for ten years after their release into the community or quarterly for the rest of their lives if the sex offender was convicted of a violent sex crime.

I think Foer, Konczal and everyone else with passing knowledge of criminal justice policy agree that the War on Drugs undergirds these and other rampant abuses by local police. The War on Drugs IS federal policy. The War on Terror which further augmented the already creeping militarization of local police departments, IS federal policy. DHS and DoD grants are federal government incentives--some of which are "use it or lose it" grants that influence local police to buy more than they need or risk losing federal assistance.

Therefore, it is PATENTLY ABSURD to believe that the federal government neither has had nor  continues to have an active role in influencing and driving the policies of local police. Without the federal War on Drugs, it's hard to imagine civil asset forfeiture becoming the cash cow for local authorities it is today. Without federal direction and incentives, due to the War on Terror, it's hard to see how police became surplus dumps for the DoD and beneficiaries of DHS largesse. Without federal influence, it's hard to see how marijuana and other drug arrests for simple possession become the number one reason for being arrested in the United States. (I think it is no coincidence that driving under the influence, a crime that also drew federal incentives before it became a cash cow in itself, is the second leading cause of arrest in the United States.)

In short, yes, the states and localities are running rampant with the law enforcement tools they use. I never argued they didn't. But it is nothing short of fantasy to think that past and current federal policies didn't get us to this point. Looking to them as the beneficent saviors to the policies they created--beyond removing the incentives they did and continue to provide--seems a bit daft.

As I ended my Rare piece, criminal justice reform need not start at the federal government level. But if we want to look at the source for many of these problems we face in localities today, you cannot responsibly ignore the federal government's heavy hand in most of them.

bellum medicamenti delenda est

My Response to Franklin Foer of The New Republic

TNR editor Franklin Foer took to his virtual pages today to argue for more federal involvement to protect our civil liberties. In the abstract, I agree with him: I think the federal government is a necessary check against wanton abuse by states and locals against their own people. (We kinda fought a war that settled that.)

However, when it comes to details, he's about as far afield of correct as you can get:

But back to the actual issue at hand, Foer cites civil asset forfeiture as the strongest evidence of need for federal intervention. Oh, if this were only the case.

As this Institute for Justice’s 2010 paper on the subject makes clear, the rise civil asset forfeiture is a direct result of federal involvement in local policing. In what are known as “equitable sharing” agreements, federal law enforcement split forfeiture proceeds with state and local law authorities, supposedly in relation to the amount of work the agencies put into the investigation. While the amount of money is discretionary by statute, all reports indicate that the default split is the maximum allowed: 80 percent to local agencies, 20 percent to the federal government.

You can read the whole thing here.

bellum medicamenti delenda est