Obama's bad criminal justice ideas.

The law, lawyers, and the court.
Oct. 6 2008 3:57 PM

Bad Cop

Why Obama is getting criminal justice policy wrong.

Tulia, Texas. Click image to expand.
A rally against 1999's massive drug bust in Tulia, Texas

When Sen. Barack Obama expressed concern early in the primary season that there are more young black men in prison than in college, he raised hope that he might be the first major-party candidate in a generation to adopt a more nuanced criminal policy than the typical "longer sentences, more prisons, more cops." As it turns out, Obama was wrong on the numbers. But the sentiment was right—one in nine black men between the ages of 20 and 34 is currently behind bars.

Obama has also heartened advocates for criminal justice reform by expressing reservations about mandatory minimum sentences, at least for nonviolent offenders. He said he would end federal raids on medical marijuana dispensaries in states where they're legal. And he has expressed some welcome dismay about America's incarceration rate, which is the highest in the world.

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But in the last month, Obama's line on criminal justice has been a lot less encouraging. His running mate selection of Joe Biden, long one of the Senate's most strident crime hawks and staunchest drug warriors, was telling. Since the vice-presidential pick, Obama and Biden have embraced criminal justice policies geared toward a larger federal presence in law enforcement, a trend that started in the Nixon administration and that has skewed local police priorities toward the slogan-based crime policies of Congress, like "more arrests" and "stop coddling criminals."

In particular, Biden and Obama have promised to beef up two federal grant programs critics say have exacerbated many of the very problems Obama expressed concern about earlier in the primaries. Obama and Biden's position shows an unwillingness to think critically about criminal justice. They are opting instead for the reflexive belief that more federal involvement is always preferable to less.

The first program Obama wants to revive is President Clinton's Community Oriented Policing Services, which provides federal grants to local police departments. Biden sponsored Clinton's 1994 crime bill initiating COPS and has boasted since then that the bill was responsible for the dramatic 15-year drop in violent crime that began in the early 1990s. The Bush administration began phasing out the program in 2002.

To be sure, most criminologists think community policing is a good idea. It gets cops out walking the beat in the neighborhoods they patrol, talking with the people who live there, and generally acting like part of the communities they serve rather than mere enforcers. The idea is to avoid the more aggressive, reactionary methods of policing that have given rise to the us-vs.-them mentality that divides the police and the policed in many cities. (For fans of The Wire, think more Carver, less Herc.)

But there's little evidence COPS has worked, and there's some evidence it has actually encouraged police tactics completely at odds with the objectives of community policing. A 2005 report by the Government Accountability Office concluded that the program may have contributed to a minor reduction in crime—a little more than 1 percent—but at a cost of $8 billion. A peer-reviewed study in the journal Criminology concluded that COPS "had little to no effect on crime."

The main problem with federal block grants is that once they're issued, Congress can't monitor them to be sure they're spent properly. And that's certainly true of COPS. A 2000 report by the Madison Times, for example, found that COPS grants, along with a federal program through which local police departments obtain surplus military equipment from the Pentagon, led to a mass expansion of SWAT teams throughout Wisconsin in the 1990s. SWAT teams popped up in absurdly small communities like Forest County (population 9,950), Mukwonago (7,519), and Rice Lake (8,320).

And not just in Wisconsin. In a survey conducted by criminologist Peter Kraska, two-thirds of responding police chiefs said SWAT teams and paramilitary tactics "play an important role in community policing strategies."

Laudable as the concept of community police may be, the federal government hasn't the means or the ability to fundamentally change the way police operate at the local level. Nor should it try. As COPS shows, such efforts will likely prove wasteful at best and counterproductive at worst.

Obama and Biden also want to revive the Byrne grant drug eradication program, another block grant initiative. At a speech last month in Florida, Obama promised to ensure funding for the Byrne program, adding that it "has been critical to creating the anti-gang and anti-drug task forces our communities need." Although Byrne has not failed to achieve its stated goal (reducing the availability of illicit drugs), it has made drug policing more aggressive and militaristic and less accountable. And by prioritizing raw arrest statistics, the program tends to focus police efforts on low-level offenders instead of major distributors.

Because they tend to be multijurisdictional, no sheriff or police chief oversees the investigations of Byrne task forces. They are "effectively accountable to no one, least of all the communities they purportedly aim to serve and protect," says Graham Boyd, director of the Drug Law Reform Project for the ACLU, which has documented abuses by Byrne-funded task forces all over the country.

In Texas, Byrne-sponsored task forces created so many problems that much of the state has stopped participating in the program. A Byrne-funded operation was in charge of the 1999 debacle in Tulia, Texas, in which 46 people were arrested based on the word of a lying undercover police officer, Tom Coleman. Most of the 46 were later released and shared in a $6 million settlement. The next year, another Byrne task force arrested 28 people in Hearne, Texas, based solely on the word of a police informant who also proved to be a liar.

Because Byrne grants are given out primarily on raw arrest statistics, they also distort the way drug investigations are handled. Take the use of drug informants. Typically, police arrest a low-level drug offender, then try to make a deal with him to give up his supplier. They then continue their way up the ladder as far into the operation as they can go. But when funding for a task force depends on the number of arrests it makes, the incentive is instead to go down the ladder. A midlevel distributor may supply dozens of lower-level dealers, who boost the arrest numbers. Investigators thus have a reason to cut deals with bigger players in exchange for giving up the street dealers they supply.

The Byrne program has been opposed by analysts for the Heritage Foundation, the American Conservative Union, and the National Taxpayers Union on the right as well as civil rights groups like the National Black Police Association, the Drug Policy Alliance, and the National Council of La Raza on the left. The Bush administration has been phasing Byrne grants out, just as it has with COPS grants.

But Obama, Biden, and Democratic leaders (as well as several Republicans) in Congress want to bring the Byrne grants back. Perhaps one reason is that they're essentially federal job programs for blue-collar workers. They're also strongly backed by police unions and police organizations that, despite the GOP's image as the party that's tougher on crime, have traditionally supported Democrats. (The National Association of Police Organizations endorsed Obama last month and Kerry and Gore before him.) Members of Congress from both parties also benefit when they can put out press releases announcing a big federal grant for the police department back home.

Obama's support for these programs is particularly disappointing given the sensible things he said previously about crime, not to mention his experience as a law professor and community organizer. Sending big federal checks to local police departments may help repudiate GOP efforts to make Democrats look soft on crime. But it reinforces another Democrat cliché—that there's no problem that can't be solved with a wad of federal cash.

Radley Balko is a senior editor for Reason magazine.

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