“We know that, intentionally or not, the JAG funding sets a tone, highlights priorities and guides the culture of policing in ways that impact what happens on the ground all around the country,” says Vanita Gupta, deputy legal director of the ACLU. Most pressingly, says Gupta, is JAG’s emphasis on police departments reporting their volume of drug arrests as “performance measure” of the grant. As the ACLU documented in a report last year, although there is little racial difference in the national rate of marijuana use, black people are nearly four times more likely than whites to be arrested for using pot — a major contributor to the disproportionately high numbers of African-Americans imprisoned within the United States’ exceptionally large prison population.
Gupta has ample experience with the destructive effects JAG-funded drug programs can exact on communities of color. In the early 2000s, Gupta worked on a case in Tulia, Texas, where a Byrne JAG-funded program enabled an undercover officer to fabricate testimony in a series of racially targeted drug stings that led to the arrest and imprisonment of roughly 20 percent of the town’s adult black population.
In the years following Tulia, Byrne JAG fell out of favor in Washington’s budgeting. But in the frenzied days following the financial crash, Byrne JAG made a comeback with an extra $2 billion infusion of stimulus money. In addition to this one-time infusion, Byrne JAG now continues to allocate hundreds of millions of dollars to thousands of police departments a year.
In Durham, civil rights attorneys say the city’s big award of stimulus-era Byrne JAG money has corresponded to a major rise in the city’s taste for targeting minorities for low-level drug offenses. The police department recently confirmed that, although whites account for a slightly larger share of the city’s population, blacks compose the “vast majority” of its dramatically ramped-up marijuana arrests. In the years since the large JAG award in 2009, the city saw steady increases in the share of black or Latino motorists subject to vehicle searches in which the police have no probable cause for action.
“The information we get — has it brought us to neighborhoods that are predominately of color? Yeah, I think so,” says Durham police chief Jose Lopez. “But it’s not happening with the intent of just going into these neighborhoods.” Lopez points to the fact that he is himself Hispanic and says that violence in the city’s black neighborhoods needs to be met with vigorous policing. Lopez insists that, when police departments bend to accusations of racial profiling, they can become too reluctant to bring an appropriate level of law enforcement to some neighborhoods of color, which he says can become more violent as a result. Lopez says that he is committed to preventing that from happening in Durham, where he says the overwhelming majority of the city’s homicides last year involved African-Americans.
Lopez rejects any notion the Byrne JAG money has led to an excessive emphasis on low-level drug arrests.
The secret “conviction bonuses” doled out by the city’s JAG-funded confidential informants program, attorneys say, are problematic for two reasons.  First, having knowledge of such payment arrangements is essential for attorneys responsible for assessing and testing the validity of witness testimony, and federal law prohibits law enforcement from failing to disclose them, according to Ian Mance, an SCSJ attorney and Soros Justice Fellow who has worked extensively on racial profiling in Durham. Additionally, Mance says, informant bonuses should never be made contingent on witnesses giving police their desired outcome of conviction. The Durham police department has said that its use of the phrase “conviction bonuses” was a mistake, and that it has never actually tied informant payments to the outcome of cases.

According to local news reports, the conviction bonus scandal could lead to the reopening of dozens of cases in Durham. This could be difficult, though, given that some of those whose convictions are now being called into question have already been deported.
Byrne JAG-funded programs have seen mass relitigation in the past. Dozens of people in Tulia, encompassing almost all of those caught up in the JAG-funded drug stings, were eventually released from behind bars.
Given its large scale, Byrne JAG represents a potentially rare opportunity to briskly fix a major institutional driver of the interlocked problems of racially uneven policing and mass incarceration, according to Inimai Chettiar, director of the Brennan Center’s Justice Program. “You don’t need legislation to do this,” says Chettiar. “The JAG performance metrics could be changed tomorrow. The Department of Justice could do this whenever it wanted at its own discretion.”
The ACLU’s Gupta, who has recently participated in high-level discussions with the divisions within Department of Justice most closely tied to the administration of Byrne JAG, says that the department appears more open than ever to reforming the program. In addition to urging the department to stop indicating that police departments’ performance will be judged based on sheer numbers of arrests made, the ACLU is recommending that the Justice Department require localities to report racial statistics of arrests and to make clear to recipients of the federal money that the elimination of unnecessary incarceration is a federal priority.
“Given the Obama administration’s and attorney general’s commitment to executive action to reduce the federal prison population and end destructive and unnecessary drug enforcement policies, it would only make sense for them to take a close look at the effect Byrne JAG is having on the local level,” says the ACLU’s Gupta. “It would be a huge win for justice.”