America’s criminal-justice system has a lot of problems: a mushrooming prison population, large racial disparities, an underfunded public defenders’ offices—and the list goes on. These problems get a lot of attention, at least among academics and policy wonks. Two other, equally serious problems—the federal law-enforcement bureaucracy’s lack of political accountability and the lack of adequate funding in big-city police departments and district attorneys’ offices—don’t. Dan Richman’s article focuses welcome attention on both, and he deserves praise for that. Richman is absolutely right, for example, to note that the war on terrorism is reducing federal law enforcers’ accountability deficit. The funding problem seems a harder nut to crack.
Accountability first. There are three kinds of federal criminal cases: cases only the feds do (prosecuting terrorists or crooked corporate CEOs), cases where the feds work alongside local police and local prosecutors (joint local–federal task forces on gun crimes or gangs), and everything else. The problem is the third category. The federal code includes a long list of crimes that are also listed in every state’s criminal code: robbery, extortion, arson, every kind of drug crime, and a great deal more. In these areas, local police and local district attorneys are responsible for crime control; if crime rates go up, theirs are the jobs at risk. Federal officials cherry-pick. Cases “go federal” for no better reason than because some FBI agent or Assistant U.S. Attorney wanted to take down a high-profile defendant, or just have some fun. No one exercises much oversight in these cases.
Power without responsibility is generally a bad formula, for government officials or anyone else. So a good way to make federal law enforcement healthier is to shrink that third category. Two great events of the past few years have gone some distance in that direction. First was the terrorist attacks of September 11. Now, FBI agents’ time is a much scarcer commodity because so many agents focus on counterterrorism. Second was the wave of huge corporate bankruptcies that began with Enron. Today, members of Congress are paying close attention to corporate crime. The Justice Department, including its many U.S. Attorneys’ offices, must pay attention as well. Now federal prosecutors’ time is more scarce. Consequently, we are likely to see better, more careful, more politically responsive federal law enforcement in the years to come.
Local budgets are a bigger problem. Criminal law enforcement in urban America is chronically underfunded. Cities and counties pay the bulk of the tab for policing and prosecution. And criminal law enforcement is redistributive. Its biggest benefits go to the poor people who live where most of the crime is, but the bill is paid by the middle- and upper-income taxpayers who live where most of the money is. Local governments cannot easily pay for redistributive services: if their tax bill gets too high, wealthy residents will move to the suburbs, or to the next county. That is why high-crime cities are always under-policed and why their district attorneys’ offices are always understaffed.
Here terrorism is not much help. Terrorism adds to the federal government’s budget problems (massive tax cuts haven’t helped), and federal budget pressures make aid to local law enforcement somewhere between unlikely and unthinkable. Bill Clinton’s program to put 100,000 more cops on the street came in flush times. The times aren’t flush anymore. For the foreseeable future, local police budgets will continue to be strained.
Or will they? Policing could be treated like public education—another redistributive enterprise run by local governments, but one for which federal and state legislatures have ponied up a lot of money over the years. A federal policing program backed up by large federal dollars—call it “No Cop Left Behind”—could go a long way toward alleviating the budget pressures city police forces face. Why hasn’t it happened? Politicians spend money where there are votes to be had, and fighting crime has been a vote-winning issue for a long time, just like good schools. That the federal government has continued to be a small budgetary player in local law enforcement seems a mystery.
Actually, it is a little less mysterious than it seems. Politicians also like to spend money where they can attach strings. When legislators can spend but not govern, budget lines tend to be small. “No Child Left Behind” and other federal education initiatives are classic examples, tying federal dollars to federal regulation. Clinton’s 100,000 cops fit this pattern too: Congress didn’t simply sign a check; funding was tied to encouraging community policing. But there is much less space for governing in the sphere of law enforcement than in public schools. The Supreme Court mostly filled that space in the 1960s and 1970s with a series of broad rulings limiting police searches and seizures and interrogation of criminal suspects. As for prosecutors, virtually every aspect of criminal litigation is the subject of large bodies of constitutional law. The Constitution applies to public schools too, but there, constitutional law operates around the edges; day-to-day legal regulation comes from state and federal legislatures, not judges and Supreme Court justices. Day-to-day legal regulation of the police comes from the Fourth and Fifth Amendments. Sandra O’Connor has more to say about it than Ted Kennedy.
So Congress doesn’t spend much money on local police because it can’t do much regulating. That is one of the sad consequences of the courts’ efforts to rein in police misconduct. Those efforts were probably necessary in the 1960s. They may not be today; as the current politics of racial profiling and the death penalty show, legislative regulation of the police might work reasonably well.
The great need of the federal criminal justice system is for more accountability. In a roundabout way, the war on terrorism is producing it. The great need of local law enforcement is for more money. Fighting terrorists costs money; it won’t help this problem. The best way to get more money to strapped police departments and district attorneys’ offices is to relax the court-driven constitutional restrictions on those same police departments and district attorneys’ offices. Let legislatures regulate more, and they’ll spend more. That may be the only way out of local law enforcement’s budgetary box.