Rise of the Warrior Cop – Review Part 3 of 5: Perverse Incentives

“It is difficult to get a man to understand something, when his salary depends on his not understanding it.”

― Upton Sinclair, I, Candidate for Governor: And How I Got Licked 1935.

I’ve been doing a close reading of Radley Balko’s Rise of the Warrior Cop: The Militarization of America’s Police Forces, and I’m trying to unweave the major narrative threads that explain how it got so bad. In Part 1, I summarized Radley’s history of policing, and in Part 2 I followed the threads that showed how the War On Drugs provided justification for raids, and the erosion of the Castle Doctrine provided permission. In this third part, I’m going to review the perverse incentives created by federal anti-drug funding and changes in police organization that I believe are the main driving force behind the rise of the warrior cop.

Federal Funding

1988 saw the creation of the infamous Byrne grants, which essentially replaced the Nixon-era LEAA program, and which would go on to give billions of dollars to local police agencies throughout the country. Then in 1994, President Bill Clinton pushed the Community Oriented Policing Services program, which he had claimed would put another 100,000 officers on the street. COPS money was supposed to be used for “community policing” — a return to having cops on the beat who learn the neighborhoods. But as it turns out, a lot of this money paid for drug sweeps, anti-gang enforcement, and SWAT raids.

With federal funding hanging in the balance, policing became a numbers game. The departments that did best in the grant process were those that could show a lot of anti-drug activity: Arrests, warrants, seizures. So by stepping up drug enforcement, departments could obtain funding for activities (or levels of activities) that had not been approved by their local elected officials. Crimes that did not receive funding — sexual assaults, burglaries, auto theft, domestic violence — were increasingly treated as low priority.

After 9/11, federal funding shifted to support the War On Terror, and police departments promptly began applying for grants to fight terrorism. As it turns out, there wasn’t any more domestic terrorism after 9/11 than there was before, so a lot of that anti-terror money ended up fueling the War On Drugs anyway. It seems that many law enforcement agencies suddenly became deeply dedicated to fighting something called “narco-terrorism,” which almost nobody had been talking about before there were billions of anti-terrorism dollars up for grabs.

(I used to see a lot of that kind of opportunism when I worked in government contracting. If the government is buying anti-terror programs, everybody tries to find anti-terror applications for whatever it is they do, even if it’s just storing road salt.)

Civil Forfeiture

At the same time police departments began scrambling for federal funding, they also learned to take advantage of changes in civil forfeiture rules pushed by the Reagan administration. Real estate was no longer exempt, the standard of proof was reduced to less than probable cause, and seizures could go forward without even an indictment. The law also allowed seizure of assets even when it couldn’t be proven that a particular asset had been purchased with drug money.

Many state governments had been concerned that forfeiture could be abused, and they were careful not to give their law enforcement agencies broad forfeiture powers. However, a federal policy called equitable sharing gutted those protections by allowing federal agencies to share seized assets with any local local law enforcement agencies that had assisted in the seizure. In practice, this meant that local police could bypass state laws by bringing seizure opportunities to federal agencies, which would take over the seizure on paper. In reality, local law enforcement would continue to do all the work and receive most of the resulting money, with the federal agency providing token support and skimming a little cash off the top.

Nobody seemed to realize (or care) that this would have the effect of giving local law enforcement agencies a source of funding that was completely outside the control of local governments.  And unlike direct federal grants, this was a funding source that local police departments could directly influence: The more drug busts they did, the more they got to seize, the more money they got back from the feds.

In theory the victims of forfeiture could fight it in court, but prosecutors would often threaten criminal charges, which they would deal away if the property owners agreed to not fight the seizure. As Radley points out, this demonstrates the lie:

Those sorts of offers exposed just how fraudulent the government’s justification for its terror tactics really were. Allegedly, these pot growers were the dregs of humanity, greedily poisoning America’s children with their sinister harvest. They were dangerous enough that the government had to send virtual armies to occupy entire towns, buzz homes and chase children with helicopters, set up roadblocks to search cars at gunpoint, and strip suspects and innocents alike of their Fourth Amendment rights. These growers were that dangerous. However, if they were willing to hand over their land, the government was more than happy to let them go free.

Now instead of trying to find major drug dealers with large drug stashes, cops began looking for people who owned valuable property that they could link to drugs somehow. A guy dealing dope in a school yard might be moderately interesting, but a kid growing three pot plants in his parents’ $250,000 home was a higher priority, and business properties such as bars and hotels were potential goldmines because of their high value and because there was always a good chance that some customers had drugs on them, which would form the pretext for the seizure.

Forfeiture had turned police departments into thieves and money launderers.

Military Support and Equipment

The third change in police funding was a series of federal programs created to provide police departments with military-style equipment. This had been allowed since 1968, but in 1987 Congress stepped-up the effort.

[T]he 1987 law was more proactive. It established an office in the Pentagon specifically to facilitate transfers of war gear to civilian law enforcement. Congress even set up an 800 number that sheriffs and police chiefs could call to see what was available, and it ordered the General Services Administration to work with the Pentagon to produce a catalog from which police agencies could make their wish lists.

The Clinton era saw the creation of the “1033” program, which made it even easier for military hardware to flow down to civilian law enforcement agencies. By 2011 the Law Enforcement Support Office was reporting annual transfer of half a billion dollars worth of military gear to civilian cops.

Those grants were small, however, compared to the billions of dollars of post-9/11 equipment grants through the Department of Homeland Security. Police departments just love armored vehicles, and DHS helped buy a bunch of them all over the country. One of the more infamous was a $300,000 Lenco Bearcat (check out the macho bullshit promotional video) for the town of Keene, New Hampshire, population 23,000.

It’s arguable that armored personnel carriers are usable as rescue vehicles — although in that case it might make more sense if they were assigned to the fire department as aid vehicles — but some law enforcement agencies actually equip them with .50-cal machine guns. I’ve written about Sheriff Leon Lott of Richland County, South Carolina, and Radley names several more.

(Honesty compels me to admit that I can think of a legitimate law enforcement use for a .50-cal rifle…but what are the chances we’ll ever see another Killdozer?)

Radley does tell my favorite militarization story:

And in Montgomery County, Texas, “the sheriff’s department owns a $ 300,000 pilotless surveillance drone, like those used to hunt down al Qaeda terrorists in the remote tribal regions of Pakistan and Afghanistan.” A couple months before the CIR report, the sheriff in Montgomery County had broached the possibility of arming his drone with rubber bullets, or possibly teargas. “No matter what we do in law enforcement , somebody’s going to question it, but we’re going to do the right thing, and I can assure you of that,” he said. Five months later, the department made headlines when its DHS-funded drone accidentally crashed into its DHS-funded Bearcat.

Makes me chuckle every time.

Task Forces

The changes in funding were bad enough, allowing departments to fund their anti-drug activities independent of the approval of the communities they were policing, but the loss of control was made complete with the development of special-purpose anti-drug task forces.

Made up of personnel drawn from several different law enforcement agencies, control of these task forces is dispersed so widely that local civilian authorities have difficulty exerting control or even monitoring their operations. Police departments have joined task forces only to discover that they’ve given cops from other jurisdictions permission to operate in their territory without oversight. I’ve heard stories of task force officers from as far away as Arizona working here in Illinois.

In addition to being federally funded, task forces can also use civil forfeiture to fund themselves by seizing cash and property from anyone they deem a suspected drug smuggler or dealer — i.e. anyone with cash or property. Throw in the lack of the accountability, and they become like sharks in the water, forever hunting for their next meal:

As a result, we have roving squads of drug cops, loaded with SWAT gear, who get more money if they conduct more raids, make more arrests, and seize more property, and they are virtually immune to accountability if they get out of line. In 2009 the Justice Department attempted a cost-benefit analysis of these task forces but couldn’t even get to the point of crunching the numbers. The task forces weren’t producing any numbers to crunch. “Not only were data insufficient to estimate what task forces accomplished,” the report read, “data were inadequate to even tell what the task forces did for routine work.”

If you follow a blog like Pete Guither’s Drug WarRant or Radley’s The Agitator, it seems like every other horror story involves some kind of task force.

Farming Drug Dealers

Police forces have responded to these funding incentives in ways that are truly perverse, often leading them to act like criminals themselves. Worse, agencies and task forces that earn a profit from crime will become dependent on the very crime they’re supposedly trying to stop. As I wrote in another context, “When a city is spending a million dollars a year running a batch of red-light cameras, the last thing they want is for everyone to drive safely.”

The same argument applies to the drug war. Cops begin permitting the very crimes they’re ostensibly supposed to be fighting:

Most perversely of all, the promise of a financial reward actually provided drug cops with an incentive to wait until drugs had already been sold to move in with searches and arrests. A suspect flush with pot or cocaine didn’t offer much forfeiture potential. If they waited to bust him until he’d sold most or all of his supply, the police department got to keep the cash. Subsequent media and academic investigations would bear this out, finding examples of police waiting to bust stash houses until most of their supply had been sold, or of being far more likely to pull over suspected drug-running vehicles in the lanes leading out from large metropolitan areas (when they were likely to be full of cash) than the lanes leading in (when they were more likely to be filled with drugs).

Essentially, the cops are skimming money off the drug trade, just like any drug kingpins. Drug enforcement teams facing such incentives become focused on busts that will make them money, to the exclusion of all else. Sometimes even to the exclusion of guilt. In 1999 a task force used tips from an unreliable informant to launch a series of raids Tulia, Texas, which resulted in the arrests of fully 10 percent of the town’s black population. Something similar happened in Hearne the following year.

Radley finds some especially interesting evidence when discussing the police response to a recent cut in Byrne funding:

In March 2008, Byrne-funded task forces across the country staged a series of coordinated drug raids dubbed Operation Byrne Blitz. The intent was to make a series of large drug seizures to demonstrate how important the Byrne grants were to fighting the drug war. war. In Kentucky alone, for example, task forces uncovered 23 methamphetamine labs, seized more than 2,400 pounds of marijuana, and arrested 565 people for illegal drug use.

Radley draws this conclusion:

Of course, if police in a single state could simply go out and find 23 meth labs and 2,400 pounds of marijuana in twenty-four hours just to make a political point about drug war funding, that was probably a good indication that twenty years of Byrne grants and four decades of drug warring hadn’t really accomplished much.

I think I disagree. It sounds like police are accomplishing exactly what they want with the War on Drugs. Because of federal grants and civil forfeiture, police are dependent on drug busts to keep the money flowing, and the ability to make drug busts depends on a steady supply of drug dealers. No wonder the drug war is showing no signs of success: If the drug warriors ever managed to put a significant dent in drug trafficking, they’d lose their funding and then their jobs. So it’s to their advantage to leave plenty of dealers in operation. That’s why when Operation Byrne Blitz came along, they had no trouble finding people to bust.

In other words, drug warriors aren’t trying to eliminate drug dealers; on the contrary, drug warriors are farming drug dealers.

In Part 4, I’ll talk about some of the effects of all this on police behavior.