Attorney General Bill Barr announced this week that he is threatening to withhold federal funds from three cities – New York (NY), Portland (OR), and Seattle (WA) – that he called “anarchist” jurisdictions. Barr’s unilateral actions were based on “criteria” that have no statutory or regulatory basis,1 and his actions would be unlawful if he executes on those threats.
This latest announcement is a continuation of the Trump Administration’s blatant, politically motivated strategy to instill fear in the American public while ignoring evidence. Data analyzed by the Center for American Progress shows that although homicides have increased in jurisdictions, violent crime rates have decreased from 2019 to 2020 in New York, Portland, and Seattle and in more than half of the 25 largest U.S. cities. In addition, violent crime rates remain low in the vast majority of the analyzed jurisdictions compared to rates over the past 25 years.
Reducing violent crime in a just, effective, and evidence-based manner is a priority for all Americans. Yet, this President is pitting communities against each other for political purposes. As this memo outlines below, the Administration’s actions this week are another example of the divisiveness and disregard for facts and the law that have characterized its approach for the the last three and a half years.
1. The cities Barr targets – as well as a majority of the 25 largest U.S. cities – have seen decreases in violent crime rates so far this year compared to this time last year.
A Center for American Progress analysis shows that the three cities that Barr targets – New York, Portland, and Seattle – have violent crime rates that are steady compared to 2019. Violent crime is a measure of homicides, robberies, aggravated assaults, and sexual assaults. While homicides have increased when compared to the previous year, violent crime overall has maintained a slight downward trajectory in these three cities.
Moreover, it is important to note that the homicide and violent crime rates for all three cities remain low compared to the last 25 years. This trend is not unique. A Center for American Progress analysis shows that the vast majority of the largest U.S. cities have low violent crime rates compared to rates since 1995 when the FBI began collecting this information through the Uniform Crime Reports.
Year over year crime data analysis can be instructive, but it is crucial to study trends over the course of several years. Pinpointing the factors that contribute to crime rate fluctuations is difficult, especially this year when the social costs of the coronavirus pandemic have yet to be fully realized and understood. Thus, addressing public safety issues takes a comprehensive strategy that relies on and creates meaningful opportunities for all members of our communities.
2. Barr does not have the authority to withhold federal funds under the criteria he invented.
The Attorney General cannot withhold grant funds that have already been awarded to jurisdictions – either through a formula or through a competitive grant – absent a finding that the jurisdiction violated a term of the grant agreement. Nor can he restrict access to future funding based on his own invented criteria. Federal grants are governed by statute which prescribes the purposes of those grants as well as any requirements that can be levied on grant recipients. None of the “criteria” Barr announced fall within DOJ public safety grant requirements. Federal dollars cannot be withheld from states and localities simply because the federal government does not agree with a city’s general public safety strategy, contrary to this administration’s actions and assertions.
DOJ might consider additional criteria when jurisdictions apply for grants in the future. However, any such conditions would have to be detailed in the grant solicitation and must be relevant to the particular grant. The administration attempted this tactic when it moved to prevent what it deemed to be “sanctuary cities” from receiving Byrne Justice Assistance Grants. That attempt was struck down by several federal circuit courts and upheld only by the Second Circuit. In that decision, the Second Circuit relied on the fact that enforcement of immigration laws is under the federal government’s purview. In the current situation, general public safety, which is overwhelmingly within the local government’s jurisdiction, is the issue at stake. Thus, absent any violation of federal law or special condition, the Department of Justice lacks authority to withhold grant funds to these jurisdictions.
3. The Barr “criteria” are purely political and would mean unaccountable law enforcement.
Attorney General Barr’s “criteria” show how little regard he has for making law enforcement accountable to the people they protect and serve. Police and public safety agencies take direction from local elected leaders who have the power to decide how law enforcement should be deployed. But Barr seems to equate “anarchy” with any parameters on law enforcement and ignores the fact that police agencies are not independent, extra-judicial entities. For example, Barr would consider an order to withdraw from policing in a geographic area as suspect, regardless of whether parallel measures that are being promoted to maintain public health and safety. Conversely, Barr has been silent when law enforcement around the country that have taken it upon themselves to engage in “de-policing.”
Barr’s criteria that New York, Seattle, and Portland did not accept federal assistance also shows how much his actions are insincere and without substance. He cites no statute or authority of any kind that cities are required to – or even should – accept a partnership with the federal government. Moreover, the federal government this year showed the type of harms that it was prepared to perpetrate when it cleared Lafayette Square in Washington D.C. for a Trump photo op, and escalated tensions and violence in Portland, Oregon. A city is not obligated to accept federal assistance. It is understandable that cities may choose not to accept what is being offered by DOJ and DHS based on recent actions by these agencies.
4. Barr’s actions would remove funding for the police, contrary to his own criteria.
If Barr is successful in withholding federal funds from jurisdictions as he has threatened, he would be reducing police funding in three cities. While Barr did not state which grants would be subject to withholding, he likely is referencing DOJ public safety and criminal justice grants, such as Byrne JAG which primarily funds local law enforcement agencies. He could also be referring to federal grants issued by the Department of Homeland Security, especially through the Federal Emergency Management Agency, which also fund public safety agencies. If Barr attempts to have other federal grants unrelated to public safety, such as those under the purview of the Department or Labor or Education, the legal basis for such actions would be even more tenuous. In the current context, Barr‘s actions would result in withholding resources to law enforcement agencies – which is the exact result his convoluted policies are intended to stop.
1 According to a Department of Justice press release dated Monday, September 21, 2020, the criteria that Bar created are:
Whether a jurisdiction forbids the police force from intervening to restore order amid widespread or sustained violence or
Whether a jurisdiction has withdrawn law enforcement protection from a geographical area or structure that law enforcement officers are lawfully entitled to access but have been officially prevented from accessing or permitted to access only in exceptional circumstances, except when law enforcement officers are briefly withheld as a tactical decision intended to resolve safely and expeditiously a specific and ongoing unlawful incident posing an imminent threat to the safety of individuals or law enforcement
Whether a jurisdiction disempowers or defunds police
Whether a jurisdiction unreasonably refuses to accept offers of law enforcement assistance from the Federal Government.
Any other related factors the Attorney General deems