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March 2, 2015

Via E-Mail
Hon. Ashton Carter, Secretary of Defense
Hon. Eric Holder, Attorney General
Hon. Jeh Johnson, Secretary of Homeland Security
U.S. Department of Justice
1800 G Street N.W.
Washington, D.C. 20006
Re: Brennan Center Comments on Harmonizing Federal Law Enforcement Controlled
Equipment Programs for Consistent and Transparent Policies

Dear Secretary Carter, Attorney General Holder, and Secretary Johnson,


Thank you for the opportunity to comment on the upcoming recommendations made by the Law
Enforcement Equipment Working Group.
The Brennan Center for Justice at New York University School of Law1 is a nonpartisan law and
policy institute that seeks to improve the American systems of democracy and justice. The
Justice Program at the Brennan Center is dedicated to reforming our criminal justice system so
that it better reduces crime and mass incarceration.
As a foundational matter, the Brennan Center would recommend that the working group ensure
the definition of controlled equipment under the guidance is broad enough to include less-thanlethal weaponry and crowd control items such as sound cannons, tear gas, bean bag or plastic
bullet weapons, as well as surveillance technology developed for the battlefield such as portable
iris scanners and fingerprint devices, drones, surveillance blimps, and portable electronic
surveillance equipment like stingrays (ISMI catchers).
Further, the Brennan Center offers comments on one requested topic: harmonizing federal
programs in order to provide them with consistent and transparent policies with respect to the
acquisition of controlled equipment by law enforcement agencies.
A. Applying Success-Oriented Funding to Federal Equipment Acquisition Programs
Each year, the federal government plays a vital role in providing resources to state and local law
enforcement agencies across the country. In fact, it provides $3.8 billion in grants to states and
1

This letter does not represent the opinions of NYU School of Law.

cities for criminal justice activities annually. In addition to funding, the federal government also
supplies equipment worth billions to states and localities.
While this equipment plays an important role in helping local law enforcement agencies in crime
fighting efforts, it is vital that the federal government only provide these resources when
necessary and useful. To ensure these programs are effective and have sufficient oversight, these
important programs should work in harmony with one another and ensure that law enforcement
agencies use this equipment and these grant dollars earmarked for equipment to achieve the clear
stated goals of the programs. The question is not whether police should have more or less
equipment or money, but rather what they do with that equipment and money and how that
affects public safety.
The Brennan Center urges the Working Group to recommend that federal agencies harmonize
these programs that provide equipment and dollars to law enforcement by recasting them in a
model called Success-Oriented Funding. That model ensures that resources provided for
criminal justice are clearly tied to outcomes, specifically to achieving the twin goals of reducing
crime and reducing unnecessary incarceration. This can be done by conditioning dollars and
equipment on achieving outcomes or providing incentives and concrete, measurable success
measures to shift behavior toward those goals. When the federal government provides resources
to states and cities it should know whether these dollars were effectively spent to meet these
outcomes. The executive branch has the authority to revamp these programs through different
methods as appropriate.2
By applying Success-Oriented Funding to federal equipment acquisition programs and grants
that allow for the purchase of equipment, the Working Group will be able to ensure that the
provision of equipment to law enforcement agencies is similarly tied to a reduction in serious
and violent crime.
B. Applying Success-Oriented Funding to the Byrne JAG Program
As a powerful starting point, the Working Group should recommend implementing SuccessOriented Funding for the Edward Byrne Justice Assistance Grant (Byrne JAG) program. This
program provides roughly $300 to $500 million a year to states and cities, making it the largest
single source of federal funding to criminal justice activity. On average, states allocate half of
this amount on law enforcement alone, with one third of that allocation being used to purchase
equipment.

Depending on the authority granted to agencies, they can tie funding to goals in three ways. Conditioned funding
reserves dollars for recipients that show progress toward their goals, saving dollars for agencies that achieve
intended outcomes. Bonus funding gives additional dollars to recipients that show progress toward their goals, even
when it is not mandatory. Indirect funding requires federal agencies to encourage recipients to achieve specific
priorities by providing goals alongside funding. This indirect method can be just as powerful, as it creates strong
incentives to use funding for goals. For more specifics on this model, please see NICOLE FORTIER & INIMAI
CHETTIAR, BRENNAN CTR. FOR JUSTICE, SUCCESS-ORIENTED FUNDING: REFORMING FEDERAL CRIMINAL JUSTICE
GRANTS (2014), available at
http://www.brennancenter.org/sites/default/files/publications/SuccessOrientedFunding_ReformingFederalCriminalJ
usticeGrants.pdf.

The Department of Justice has authority to create reporting and evaluation requirements for
Byrne JAG recipients. The measures used in these evaluations send signals to recipients of
desired outcomes. Byrne JAG inadvertently articulates goals in these evaluations that incentivize
pulling more people into the prison pipeline. For example, it asks for the number of criminal
cases opened and how many kilograms of cocaine were seized, but not whether violent crime
dropped or how many people were sent to drug treatment.3 Instead, the Justice Department
should ask recipients whether they used the funding to meet clear, measurable goals. These
include: lowering crime, reducing prison sentences for petty offenders, and solving more
murders. Because Byrne JAG funds travel to all states and thousands of cities, reforming Byrne
JAG could create a nationwide shift, at little cost to the federal government. This change is
wholly within the Justice Departments authority and research has shown these types of subtle
incentives can help change policies and practices.
Law enforcement, researchers and advocates now agree we can reduce crime and violence
without intruding on individual rights and without high arrest and incarceration numbers.
Progressives, conservatives, and law enforcement support this reform.4
Given the sheer scale of this grant, a closer examination of Byrne JAG would likely prove to be a
useful starting place for the Working Group to ensure the effectiveness and harmonization of
grants toward modern criminal justice priorities.

Respectfully submitted,
Nicole Austin-Hillery
Director and Counsel, Washington Office

Nicole Fortier
Counsel, Justice Program

Michael German
Fellow, Liberty and National Security Program
Brennan Center for Justice
at NYU School of Law
161 Avenue of the Americas, 12th Floor
New York, New York 10013

For more on Byrne JAG, see INIMAI CHETTIAR ET AL., BRENNAN CTR. FOR JUSTICE, REFORMING FUNDING TO
REDUCE MASS INCARCERATION (2013), available at
http://www.brennancenter.org/sites/default/files/publications/REFORM_FUND_MASS_IN-CARC_web_0.pdf.
Other grants that the Working Group could apply this model to are the High Intensity Drug Trafficking Areas
program and the COPS Hiring Program. See NICOLE FORTIER & INIMAI CHETTIAR, BRENNAN CTR. FOR JUSTICE,
SUCCESS-ORIENTED FUNDING: REFORMING FEDERAL CRIMINAL JUSTICE GRANTS (2014), available at
http://www.brennancenter.org/sites/default/files/publications/SuccessOrientedFunding_ReformingFederalCriminalJ
usticeGrants.pdf.
4
Letters from these groups urging reform are available at https://www.brennancenter.org/byrne-jag-reform-letterssupport.