| ‘No Cop Left
Behind’ William J.
Stuntz
8 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.<
William J.
Stuntz
is a professor at Harvard Law School.
Click here to return to the New
Democracy Forum “The
Right Fight.”
Originally published in the December
2004/January 2005 issue of Boston Review |
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