One year ago, Minneapolis police officer Derek Chauvin’s murder of George Floyd sparked an international rebellion against police violence. From this historic uprising, a longtime demand from the Black Lives Matter movement to end mass incarceration and police violence by defunding the police became a part of mainstream discourse. 

Local campaigns like #defundNYPD and national studies like Freedom to Thrive: Reimagining Safety and Security in Our Communities have fleshed out the meaning of defund, envisioning municipal and state budgets that invest in social safety nets over criminalization. But the executive branch ― the branch of government that creates the rules and regulations that guide the execution of federal law ― remains under-examined as a lever to effect systemic change.

Any executive branch strategy on criminal justice is a game of carrots and sticks rather than the implementation of direct, mandatory change that is possible at the state and local level. But strategic use of the Office of Justice Programs, an obscure but potentially critical office within the Department of Justice, could begin to give public defenders, social service providers, and community leaders a say when it comes to federal funding for local criminal justice infrastructure. 

A defund strategy that targets the Department of Justice is possible with a generous interpretation of the existing statutes that animate federal criminal justice funding. Some of these statues already name non-punitive measures as among their funding targets for criminal justice infrastructure. Existing federal funding for criminal justice infrastructure could be rerouted toward social services, with an eye toward divestment from policing — a system that is fundamentally “excessive, brutal and discriminatory” —  and investment in community safety programs. Injecting community control over routine federal grant funding could allow grassroots movements to influence federal funding for local criminal justice systems. 


Why Executive Branch Strategy?

Executive branch strategies are seldom undertaken by progressive movements, and for understandable reasons. This branch of government is often a black box when it comes to policy making. It is dominated by “revolving door” hires who oscillate between corporate jobs and public service, using their time in government to represent corporations and then selling their regulatory knowledge back to corporate clients when they revolve out. Anyone outside of this revolving-door game, and especially community- or state-level activists who don’t closely follow the daily tumult in Washington, DC, are often dismissed by these revolvers as unserious and childish. This keeps the government all the more opaque and unresponsive to the people.

But what makes the executive branch a challenging target for political struggle is also what makes it compelling. Executive branch approaches are precisely how Koch-funded GOP political strategies have been quietly chipping away at our regulatory system for decades. To make matters more complicated, some DC-based non-profits, which are best positioned to counter the corporate capture of the federal government, prioritize close relationships with lawmakers over pointedly critiquing the failures of the establishment to make substantive change. This is especially the case when the figures in power at the moment happen to be Democrats. 

Grassroots organizers are sorely needed in this under-appreciated arena of political struggle, where they can not only propose policy but control how the policy is executed. Bureaucracy is the law manifest, the space where everyday people experience the rules and regulations that govern our lives. Radical engagement with routine elements of the executive branch — like rules, regulations, federal funding streams, and advisory committees — could allow organizers to extend political control over the inner workings of the state itself, increasing democracy and collective governance. Pressure in the form of scrutiny of the offices and personnel that govern criminal justice grant funding and research would give movement organizations the opportunity to advocate for a government that prioritizes care over criminalization. 


Community Control of State Administering Agencies

Police spending has risen over 200 percent since 1980 and continues to expand. Although local taxes remain the largest source of police budgets, departments are increasingly dependent on federal funds. Between 1982 and 2015, federal spending on policing increased by 354 percent, a far higher rate of increase than that of local and state spending on policing combined. Of those federal finances, two programs housed within the DOJ’s obscure Office of Justice Programs stand out as the primary contributors to police department budgets: Byrne Justice Assistance Grants and COPS grants.

The Edward Byrne Memorial Justice Assistance (Byrne JAG) program is the leading source of criminal justice funding provided to states and local jurisdictions by the federal government. States and municipalities submit grant proposals through the Bureau of Justice Assistance (BJA), a component of the Office of Justice Programs within the DOJ. 

The statute animating the Byrne JAG program names indigent defense, court programs, crime prevention and education, mental health, and behavioral programs and crisis intervention as other aspects of the criminal justice system that it funds. Byrne JAG funding is thus not meant to exclusively fund law enforcement and prisons, but it effectively does. As a snapshot, the BJA disbursed over 77 million dollars in 2019 to local criminal justice systems, financing anything from overtime pay to body armor. 

When Byrne JAG grant funding hits localities, state administering agencies (SAAs) decide how and for what purposes the federal dollars will be allocated.These agencies normally include prosecutors, cops, judges, and court staff. However, representation of grassroots organizations, social workers, mental health experts and other community members on these administering agencies could redistribute decision-making power on criminal justice budgets. Those most impacted by mass incarceration and police violence deserve to define what they see as a functional criminal justice system and decide if federal grants are improving the administration of this system. With increased representation, these groups could advocate for federal funding for non-punitive aspects of the criminal justice system, like violence prevention programs, mental health services, and substance abuse programs, rather than body armor and surveillance. 

Subgrants to community-based organizations are also awarded as part of the Byrne JAG funding scheme. Localities can regrant federal dollars to private or nonprofit neighborhood or community-based organizations that provide vital services as part of the criminal justice system. In 2020, the city of Burlington, Vermont, received over $46,000 through Byrne JAG funding for a neighborhood peacemaking program that centers restorative justice and conflict resolution as an alternative to the court system. The grant allowed the Burlington Community Justice Center to skill up residents in the practice of solving conflicts without relying on the police.

In the hands of organizers, subgrants could fund activities like jail support, reentry services led by formerly incarcerated activists, and non-punitive diversion programs that offer social services and peer support instead of jail time.  

As with any grant, Byrne JAG recipients must report on their activities and evaluate the effectiveness of their programs. Evaluating federal funding through a lens that centers care, community control, and decarceration could help rewrite what constitutes an “effective” criminal justice system. If highly replicable models arise from redistributed funding, grant reports could educate federal decision-makers on the positive impact that non-carceral and non-punitive programs have.

Pressure on the political appointees that administer these reporting, granting, and advising processes will also be key to advancing a defund strategy within the executive branch. Ongoing pressure on positions like the Assistant Attorney General could look like requests to release calendars, emails, meeting logs, and advisory committee members, as well as public campaigns and opinion pieces. The status quo of executive branch politics thrives in obscurity. Casting light on little-known positions and offices could begin to chip away at the opacity of the executive branch and create more room for grassroots influence. 


The Pros and Cons of Administrative Lawfare 

There is a limit, of course, to executive branch strategies: they are reliant on the personnel in charge of these offices and sub-agencies. Only energized and receptive officials can turn principles like racial justice and criminal justice reform into policy agendas that guide the work of their staff. The election of a figure like Donald Trump can quash reforms and weaponize the executive branch to terrorize people of color. But even Democrats can impede change. Indeed, our current Attorney General, Merrick Garland, publicly refused to consider defunding the police during his confirmation hearing. 

Executive branch strategies have the potential for systemic change, but pressure for the appointment of energized and progressive personnel coupled with sustained scrutiny is necessary for the endurance of such reforms. Without continuous attention, the executive branch capitulates to the status quo — somewhere between corporate capture and domination by institutionalists who value their legacy over justice. 

While institutionalist picks like Merrick Garland stand in the way of structural change, engaging the executive branch carries with it the potential to attain national impact without congressional approval. This strategy evades the obstruction of figures like Joe Manchin, whose corporate capture and racist allegiance to bipartisanship are killing voting rights legislation and the struggle to end the filibuster in Congress. Challenging the personnel, guidelines, and rules that determine how federal legislation is executed is another option for progressives looking to effect systemic change at the federal level. Legislation is only as good as its execution, and without more say in this latter process, we lose out on an entire arena of political struggle.The Byrne JAG program is but one example of pre-existing mechanisms that are waiting to be interpreted through a racial justice lens.

On the road to abolition, we may consider a reimagining of criminal justice infrastructure to include non-punitive and non-carceral services that deliver care and community support instead of isolation and violence. Manipulating federal funding and interpreting administrative law toward decarceral ends presents one such avenue to begin defunding the police and the carceral system as a whole. If Joe Biden can (at least try to) reimagine what counts as modern infrastructure, why can’t we do the same for criminal justice?


This article was written in collaboration with Nika Hajikhodhaverdikhan. 


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