Defunding Police Agencies

• Publication year: 2022

Defunding Police Agencies

Rick Su

Anthony O'Rourke

Guyora Binder

DEFUNDING POLICE AGENCIES

Rick Su^* Anthony O'Rourke^** Guyora Binder^***

Abstract

This Article contextualizes the police defunding movement and the backlash it has generated. The defunding movement emerged from the work of Black-led activists to reassert democratic control over policing and shift resources to social service agencies and other institutions serving community needs. In reaction, states have enacted anti-defunding bills checking local government reduction of law enforcement budgets. These anti-defunding measures continue a long tradition of state and federal control over local police spending, subverting local democratic control over police agencies. These limits include direct legal constraints on local police spending and indirect constraints through grants and authorization to collect fines, fees, and forfeitures. These mechanisms form a ratchet, bribing local governments to increase police spending and then mandating them to maintain it, at the eventual cost of cutting social services. This leaves cities little choice but to try to police their way out of the problems of poverty and inequality. Thus, constraints on local police funding help explain the decades-long shift of resources from social welfare to law enforcement. The problem revealed by the defunding controversy is not just the size of police budgets but also the perverse process determining those budgets. Before police agencies can be right-sized or reformed, police budgeting must be put in the hands of the people policed.

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Table of Contents

Introduction...........................................................................................1198

i. defunding and anti-defunding ................................................ 1205

A. The Rise of the Defunding Movement..................................... 1205
B. The Aims and Strategy of the Defunding Movement............... 1208

1. Movement Aims ................................................................ 1208
2. Localist Movement Strategy ............................................. 1213

C. The Backlash Against "Defunding" ....................................... 1214

II. Direct Constraints on Law Enforcement Defunding..........1217

A. Mandates and Restrictions on Law Enforcement Funding..... 1218
B. The Historic Origins of Funding Constraints......................... 1224
C. Direct Constraints and the Expansion of Police Functions ... 1229

III. Indirect Constraints on Law Enforcement Defunding.......1231

A. Federal (and State) Grants..................................................... 1231

1. Overview of Federal and State Law Enforcement Grants 1232
2. The Distortionary Power of Federal Grants .................... 1236
3. Grants and Law Enforcement Mission Creep .................. 1240

a. The Framework .......................................................... 1241
b. Application—The City of Baltimore .......................... 1246

B. Legal Financial Obligations (LFOs) ...................................... 1252
C. Indirect Constraints and the Expansion of Police Functions . 1259

IV. Budgetary Distortions and the Role of Police Agencies ... 1261

A. Budget Distortions and the Relationship Between Funding and Function ........................................................................... 1261
B. Budget Distortions and Political Accountability .................... 1264
C. Addressing Budgetary Distortions .......................................... 1267

Conclusion...............................................................................................1269

Introduction

While police reform has won widespread support,¹ proposals to "defund the police" have met with decidedly mixed reactions.² To reformers frustrated by

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the difficulty of subjecting police to meaningful public oversight, defunding offers a Gordian solution, at once damning and disabling police. The formula's flexibility adds to its allure, as its meanings span the spectrum from complete abolition of law enforcement to a modest reallocation of some police responsibilities.

Despite these ambiguities, this pithy proposal, formulated by a Black-led abolitionist social movement, packs a profound critique of the "War on Crime."³ Framing police violence as a fiscal problem locates it within the neoliberal reconfiguration of the social safety net from a welfare state to a carceral state.⁴ Redescribing law enforcement as a fiscal burden wryly substitutes the police for the poor as the underperforming assets to be shed in search of profit. "Defunding" also seeks to reverse police "mission creep,"⁵ whereby problems

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once managed by social welfare professionals have been turned over to belligerent, panicky police. Finally, the focus on funding offers insight into the political economy of race. One robust predictor of high police budgets in U.S. cities is Black population.⁶ Residential segregation⁷ and high real estate prices are also associated with higher police budgets.⁸ Calls to defund the police call out a neoliberal politics of redistribution from poor to propertied, and from Black to white.

While much controversy over the slogan has debated its rhetorical merits, this Article assesses "defunding" as both a diagnosis of policing's ills and a prescription for its cure. A focus on police funding shows how the war on crime has subverted local democracy, distorted urban policy, and further eroded the social safety net. Yet an anatomy of police funding also reveals daunting obstacles to defunding as a path to police reform. If state government lacks the will, local government lacks the way to substantially shrink the police.

Our previous research has shown that police agencies are intractably difficult to reform, in part because they are legally insulated from oversight not only by courts but also by local legislative and executive officials.⁹ This raises the question, to what extent can local democratic majorities use their spending power to check or change police behavior? While the defunding movement has succeeded in a few cities in reducing police budgets or subjecting them to regular legislative review, several state legislatures have moved quickly to preempt and even penalize such laws.¹⁰ Moreover, these recent anti-defunding measures continue a lengthy history of state and federal measures to dictate local spending on law enforcement, while reducing the ability of local governments to control police operations. states and the federal government have also influenced local police budgets indirectly by implementing grant programs and authorizing the collections of fines, fees, and forfeitures.¹¹

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Together, these mandates and incentives form a web of constraints that limit the ability of local government to redirect police funding. Local government can rarely wield the power of the purse to control police or confine their mission. But these constraints also determine policy, often in perverse ways. Inflexibly high police budgets force localities to slash other services during fiscal downturns, requiring police to take on problems for which they are unprepared. Grants are temporary, but the staff positions created may become permanent. The pursuit of fines, fees, and forfeitures draws policing priorities away from serious crime and falls most heavily on the poor. Funding government by exacerbating poverty is not only regressive but also self-defeating, generating new social problems without improving government's capacity to solve them. Thus, high police budgets contribute to inequality and reduce the capacity of government to redress it. Yet, the problem with police budgets is not only their size. The prevailing process of budgeting deprives local government of capacity to prioritize problems and fashion solutions. Redirecting resources from police to social services will require budgetary autonomy local governments now lack.

To be clear, we make no claim that urban electorates have sought smaller police forces. They may have rationally supported investment in more police, as data supports the plausible intuition that increasing enforcement capacity (including through federal grant funding) reduces crime.¹² Moreover, Black constituents have sometimes supported leaders seeking to increase police presence and enforcement in their communities.¹³ Yet other public investments

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may also reduce crime in the short or long run, with further social benefits or fewer social costs. Beyond police spending, interventions shown to reduce crime include welfare programs,¹⁴ early education,¹⁵ increased educational attainment,¹⁶ drug rehabilitation,¹⁷ and lead abatement.¹⁸ Local electorates should be free to choose among different conceptions of, and pathways to, public safety.¹⁹

Instead, legal constraints frame a political economy in which police are often the only policy tool available to local officials for tackling any problem. Thus, our claim is that fiscal and legal constraints restrict the agenda of local politics. The entrenchment of police budgets makes redirecting these resources seem futile as both a policy strategy and an electoral platform. This constricting effect of the police budgeting process on the agenda of ostensibly democratic politics is an example the "second face" or "second dimension" of political power.²⁰

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Our argument proceeds in four parts. Part I explains the aims and strategies of the movement to "defund" police and describes recent efforts of states to preempt or punish local defunding measures. It identifies the movement to defund as an outgrowth of penal abolitionism, aimed at shifting investment from penal enforcement to developing the social infrastructure for peace and security by fostering education, employment, and health. It observes that the movement has focused its advocacy at the level of city governments and reviews recent successes in passing...