Federal Funding of Law Enforcement: A Vehicle for Transformative Change?

Over the years, in discussions about ways to incentivize states’ reform of their HIV/viral hepatitis/tuberculosis criminalization laws, one of the possible routes CHLP raised is inserting requirements into funding from the U.S. Centers for Disease Control and Prevention (CDC). For example, the CDC could condition the award of disease prevention funding on a state’s certification that none of their state laws and policies place unique burdens on individuals on the basis of their health status, including HIV status. 

After all, the CDC in the past has included funding incentives that required states to change their laws on name-based reporting and opt-out testing for HIV. Yet the CDC repeatedly has resisted using the same kind of incentive to encourage states to change their laws that criminalize HIV and other infectious diseases. And a few HIV organizations raise concerns that some states wouldn’t care about losing CDC funding anyway, which would hurt those in need. And so thousands of people living with HIV are serving severe felony sentences based on their diagnosis and conduct (such as consensual sex) that is perfectly legal if you have some other form of incurable STI, like HPV. It is hard to imagine a policy more likely to perpetuate the kind of stigma that stops treatment and prevention in its tracks.

Clearly, if the federal government cares about ending the epidemic of HIV-related prosecutions and felony sentences, it needs to offer effective incentives to states to change course.

Might the most promising carrot-and-stick be through federal law enforcement programs? Considering how the general overuse of the criminal law devastates our communities, turning our sights to the billions of dollars funneled through these programs should be part of our federal advocacy on behalf of people affected by HIV. Might these programs also be a vehicle not only for ending reliance on criminal law enforcement as a response to public health issues, but also as a way to fight other egregious state efforts to harm our communities?  Can we incentivize states to do the right thing by conditioning law enforcement grants on elimination of laws and policies that hurt our communities, from HIV criminalization to anti-trans bills to prosecution of sex workers?

To get us thinking about this, here’s a summary of major federal law enforcement grant programs:

Community Oriented Policing Services (COPS). Probably the most well-known of all such programs, established as part of the 1994 crime bill. The Department of Justice oversees the COPS program, and as of 2020 has paid out about $14 billion to hire and train local police involved in community policing. Some of that money has gone to communities to hire “school resource officers.”

Edward Byrne Memorial Justice Assistance Grant Program. Also administered by DOJ, it funds states, territories, tribes and local government for law enforcement and corrections programs.

Patrick Leahy Bulletproof Vest Partnership. DOJ administers this program too. It’s part of the Bureau of Justice Assistance, and also provides grants for a multitude of programs, including body cameras and "innovative policing techniques."

Department of Homeland Grant Program. DHS administers a huge grant program, supposedly to guard against and respond to terrorist attacks. A condition of most of the grants is that 25% of it has to go to law enforcement.

Rural Development Community Facility Grant Program. Believe it or not, even the Agriculture Department hands out law enforcement grants to construct new police facilities or buy new police cruisers.

There also is the notorious 1033 Program, through which the Department of Defense provides surplus military equipment, like tanks and grenade launchers, to law enforcement agencies. This is a whole different horror. I include it because it’s another way that the feds support excessive force against those with limited political capital.

That initiatives such as 1033 even exist is disturbing. Isn’t it time for more of us to join criminal justice activists in calls to dramatically scale back these programs? And, at the very least, can't we demand that any such funding be conditioned on states’ agreements to end their persecution of communities they are obligated to protect?