As the nation marks a year since the shooting of Michael Brown and heavily policed responses to subsequent protests of the shooting, police militarization is again making the news. Of particular interest is the Department of Defense-run 1033 Program. Begun in 1990 via the National Defense Authorization Act (NDAA) and expanded in 1997, the program permits the secretary of defense to transfer equipment, including small arms and ammunition, to law enforcement agencies in consultation with the attorney general. Police organizations get equipment for free, primarily to fight the “wars” on drugs and terrorism, and the Department of Defense decreases its excess equipment stock. But with little oversight, the program has become embroiled in controversy.
This previously little-known program garnered attention last August because of the militarized response by the Ferguson Police Department to protests over their conduct. Commentators — veterans specifically — wondered why local police forces took such an aggressive posture and if they should be trusted with equipment originally designed for the battlefield and not the streets of America. Increased scrutiny has only raised more questions about the program than it has answered.
Recently, Mother Jones published an article on the rationales police organizations used to justify their requests for armored vehicles over a two-year period. In spite of the rather narrow intent of the law to combat drug crimes, fight terrorism, and assist in the apprehension of violent criminals, police forces provided a wide variety of reasons for wanting to obtain MRAPs, vehicles designed for troops braving roadside bombs in Iraq and Afghanistan. Some were reasonable; others were less so. The most egregious request was that of the Ohio State University Police Division. They wanted an MRAP for, among other operations, “homeland security” and “football missions.” And they got their MRAP.
Beyond the dubious justifications for this equipment, there are some signs that its transfer is being mismanaged at the state level. This summer, the Department of Defense let the City of Ferguson know that it was taking back two Humvees. The vehicles, however, were not being repossessed because they were used improperly. Rather, federal officials noticed that the police department had four of the vehicles instead of the two they were allocated. It seems the Missouri state clearinghouse for 1033 Program gave Ferguson twice as many Humvees as the paperwork in Washington said they were permitted. Ferguson will still keep the two they were allowed. Little is known on how widespread the similar misallocation of equipment may be across the country.
In response to blowback, the Obama administration took action to place some controls on the program. Among administrative steps, the administration barred the transfer of some types of equipment (including bayonets and grenade launchers), created a controlled equipment list (including armored vehicles and riot equipment), mandated training on controlled items, and required some information collection when controlled equipment is used in “significant incidents.” The reforms are a major step forward, but there remains little oversight on the rationale for transfers or, importantly, what effect military equipment is having on recipient police forces.
Scrutiny of law enforcement in the wake of Ferguson has extended well beyond equipment transfers, as Americans have been asking questions about how we should expect the police to act in the conduct of their duties. The most important of these deal with the use of force, particularly deadly force. We simply do not know how many Americans are killed by police, to say nothing of the justifications for these deaths. The most prominent cases will be investigated, but most will not. This is especially troubling considering the possible scope of the problem: As of June, there were somewhere near 400 such deaths in 2015. But we simply do not know the exact total.
In spite of legal requirements and the appropriation of funds to develop statistics on nearly every aspect of crime and criminal justice systems throughout the country, data collection is spotty at best. While collecting and storing the data is technically required by law, reporting to either the Bureau of Justice Statistics or the FBI’s Uniform Crime Reporting Program has been less than uniform. With over 17,000 different state and local law enforcement agencies throughout the country, few funds to help these organizations pay for collection, and little interest in actual transparency, most agencies simply choose not to report data. This is particularly true for statistics on people killed or grievously injured by police.
In June a group of senators introduced the Police Reporting Information, Data and Evidence Act of 2015, or PRIDE Act, to require the states to report incidents involving shootings of civilians by law enforcement officers, shootings of law enforcement officers, and those that result in serious bodily harm to either. The act also provides grants to the states to cover the costs of this reporting. This is important legislation that should be enacted into law, despite opposition from groups such as the National Association of Police Organizations. However, attempts to incentivize states to report on similar matters have mostly failed. It is past time to introduce a stick to ensure that police are acting with the transparency we expect in a democratic society.
This is where the 1033 Program comes back into the story. Organizations looking to augment their capabilities should be particularly responsible for their actions. The Department of Defense should require compliance with the PRIDE Act, once enacted, for the transfer of items on the controlled equipment list. The secretary of defense is not required by the 1997 NDAA to provide equipment to any agency, but is merely authorized to do so. If the secretary does agree to transfer equipment, he or she should do so in consultation with the attorney general. If the attorney general is unable to confirm that the requesting agency is in compliance with the PRIDE Act, he or she should halt the flow of equipment to that agency. This requirement could be made through executive order, as it is an administrative issue and therefore would not require legislation.
All police forces, but especially those that request equipment built for military purposes, should be held accountable for their actions. The 1033 Program needs more oversight on how the equipment is used by the recipient agency. It is essential that law enforcement agencies are able to explain how often and why they use lethal force. This proposal begins to address both of these issues. The PRIDE Act should be passed into law as soon as possible and the Obama administration should give it the stick it needs to be useful, all the while getting an idea of the effects wrought by the provision of military equipment for civilian policing.
Jason Fritz is a senior editor at War on the Rocks. He is also a doctoral student in the Department of Justice, Law and Criminology at American University’s School of Public Affairs and a senior researcher at Valens Global.
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