The Greatest Threat To Defunding The Police? State Pre-emption.
A little-known legal tool allows states to override progressive policies in cities.
When Governor Ron DeSantis of Florida signed House Bill 1 into law on April 19, media and civil rights groups alike focused on provisions targeting protestors. But what stood out to me about the legislation was a section that may cripple efforts by cities to even moderately reduce police budgets, much less do anything akin to defunding the police.
State pre-emption is a technocratic, legalistic term unlikely to be widely discussed like “defund the police.” But it has thwarted all sorts of other policy efforts by Democratic cities in Republican states, and it now poses one of the most serious threats to anything but the most moderate of criminal legal system reforms.
Pre-emption is a straightforward concept: Cities are the legal creation of the state government, so states are free to overturn any local law they wish. If a city passes an aggressive stay-at-home order during a pandemic and the governor responds by saying only lesser stay-at-home orders are permissible, the governor’s action invalidates the tougher local rule. For years now, legislatures in more conservative states have been increasingly relying on pre-emption to block more progressive policies enacted in their bluer cities, including higher local minimum wage laws, plastic bag bans, anti-discrimination rules, and even tougher COVID-19 standards. It’s gotten bad enough that Governing magazine recently ran an article headlined “States Pre-Empt Cities Almost to the Point of Irrelevance.”
Unlike tussles between the states and the federal government, cities have nothing like the Tenth Amendment to protect them. That amendment asserts, however weakly in practice, that certain policies properly belong to the states, and the federal government cannot directly interfere. The U.S. Supreme Court has made it clear, however, that it views cities as creations of state governments, and thus entirely subservient to them.
With one notable exception, state legislatures have not turned pre-emption toward criminal legal reform; after all, even conservative states’ legislatures have been passing reform bills. But the one exception—gun control—is telling and ominous. For years, all but seven states have had laws in place preventing cities from adopting gun control measures stricter than state laws. These pre-emption laws make it clear that state legislatures are more than willing to impede local reform efforts if they ever touch sensitive political issues or affect politically powerful groups.
That’s what criminal legal reforms like “defund” and progressive prosecution are starting to do—and states are responding accordingly. Unsurprisingly, perhaps the most sustained action by states is to defeat efforts to defund the police. In some cases, states are going after not just complete defunding but any effort to reallocate police spending to other agencies.
Florida’s HB 1 is the first law to significantly target defunding, but it will not be the last: By my count, at least 10 other states have bills pending that target defunding efforts, although two of them, in Kentucky and Oklahoma, are quite narrow. Florida’s bill is one of the more aggressive: Any cut to law enforcement budgets can be appealed to the governor, whose administration commission (the governor plus his cabinet) can then restore as much funding as it wishes, without any appeal.
Other states are experimenting with multiple ways to thwart local policy change. Some states, such as Alabama, Missouri, North Carolina, and Texas are threatening to slash aid to any city that cuts its police budget by any substantial amount (or, in the case of Iowa, seemingly at all) outside of a few narrow exceptions. Missouri’s bill allows the head of any city law enforcement agency to sue in state court for injunctive relief to block any cuts that exceed 12 percent. The Texas bill goes so far as to take inflation into account, so it effectively requires nominal police spending to grow. Legislation in Georgia simply makes it illegal to cut police funding by more than 5 percent over any rolling five-year period absent major revenue shortfalls (although the enforcement mechanism is not clear). An Arizona bill cuts state funds to retaliate for smallish reductions to law enforcement budgets but then allows the county sheriff to take over policing if the cuts exceed 25 percent. Wisconsin’s legislation doesn’t just cut funding if the police budgets shrink—with no apparent concession even for a fall in revenues—it also permanently locks state aid to the city at that lower level.
Not all are quite so aggressive: Kentucky’s controversial anti-riot bill contains some toothless but ominous provisions warning that the legislature may turn its attention to defunding if any city attempts it. And Oklahoma’s effort simply requires a popular referendum on any effort to redirect certain dedicated law enforcement taxes. But most are taking a pretty hard line.
Note that these are clearly not symbolic laws targeting the sort of complete defunding that no city is seriously considering. These laws are targeting even moderate rebalancings of local budgets, reforms that have widespread support, even among most white voters.
There have also been three earlier efforts to pre-empt defunding that have failed. An aggressive 2020 bill in Pennsylvania, which would have forbidden cities from hiring any sort of security if they disbanded their police, never made it out of committee; a Louisiana bill that would have cut state funds to cities whose budget cuts to police were found to impact public safety died in a floor vote in the state Senate in 2020; and a conventional bill that hinged on revenue loss was decisively defeated in the Indiana Senate this year.
The passage of HB1 in Florida suggests, however, that the current crop of anti-defund bills have better chances of succeeding. Of the remaining bills, Oklahoma’s has become law, Georgia’s is awaiting the governor’s signature, and two—in Kentucky and Arizona—have passed one chamber. And the protests of 2020 sparked by George Floyd’s murder have, unsurprisingly, caused conservative politicians to take increasingly hardline stands on criminal legal issues. It’s also worth noting that seven of the 10 pending bills are in states where the GOP controls both houses of the legislature and the governor’s mansion, which makes Democratic opposition tougher.
And, to be clear, these are not the only efforts to pre-empt local reforms. The Georgia legislature recently passed a law limiting bail options, which was considered a direct hit at reforms in Atlanta (and had clear support from the bail bonds industry). On immigration, at least nine states passed laws to pre-empt sanctuary policies that cities adopted to limit relationships with ICE.
Perhaps the other major source of growing pre-emption are legislative efforts to expand laws that give state actors the authority to intervene in local criminal cases. All 50 states already have some form of supersession law, although they vary widely on how aggressively officials like the state attorney general can take over a case. The attempts to expand these laws are a rebuttal to the rise of the progressive prosecutor movement.
In 2020, a last-minute, overlooked addition to a bill in Pennsylvania—a state that isn’t Republican controlled—ended up giving the attorney general concurrent jurisdiction over all gun cases, but only in Philadelphia. It was an unambiguously direct criticism of District Attorney Larry Krasner, a popular reformer currently running for re-election. And although Pennsylvania’s attorney general, Democrat Josh Shapiro, has said he will not use the authority the law gives him, it remains and awaits a Republican attorney general to usurp local control from Philadelphia.
And in Missouri, an effort to allow the state attorney general to take over homicide cases in St. Louis narrowly failed in the Missouri Senate. But North Carolina and Pennsylvania have given their attorneys general the power to prosecute cases involving monuments. A bill in Indiana would not only give the attorney general concurrent jurisdiction for several types of crimes, but would also give the office the power to appoint a special prosecutor should a local DA decide to categorically decline to charge certain specific crimes. Many progressive prosecutors have done this with respect to marijuana, with others, like Rachael Rollins in Boston and Marilyn Mosby in Baltimore, going even further.
There have been other types of supersession in recent years, so there’s no reason to assume we won’t see more of this. In 2017, Florida’s then-governor, Rick Scott, decided to reassign dozens of death penalty eligible homicide cases to other judicial districts when the Ninth Judicial District’s progressive prosecutor, Aramis Ayala, declared that she would no longer seek the penalty for any murder. Several of the cases—most notably, a police killing—were assigned to pro-death penalty State Attorney Brad King. And just last year, Maryland Governor Larry Hogan assigned 25 prosecutors from the state attorney general’s office to start handling homicide cases from Baltimore city. (Attorney General Brian Frosh is a hardliner who has fought to maintain Adnan Syed’s conviction.)
The solution here may be complicated and may point to the need for difficult political compromises. While reformers, including progressive prosecutors, often attack state district attorney associations for resisting change and pushing for severity, the association in Missouri played an important role in defeating the bill there that would have granted the attorney general concurrent jurisdiction over certain homicide cases in cities that are not part of a county. Conservative prosecutors were not fans of Kim Gardner—St. Louis’s progressive prosecutor and the target of the supersession bill—but they wanted to protect their own independence more than take power away from her office.
Pre-emption and supersession are not fundamentally antithetical to reform and greater law enforcement accountability, even if they are regularly used that way. In 2015, New York Governor Andrew Cuomo issued an executive order that gives the state attorney general the right of first refusal to charge police officers who kill people in the line of duty. The order was an effort to confront the long-standing concern that local prosecutors work hard to exonerate officers charged with homicide in their jurisdiction. In 2017, then-Attorney General Eric Schneiderman indicted Joel Abelove, the elected prosecutor of Rensselaer County, for violating the order. While Schneiderman’s office was debating whether to take the case, Abelove had rushed a grand jury to decline to indict an officer facing charges. (Abelove was later acquitted in a bench trial).
In recent years, however, the trend is clear: States, conservative-led ones in particular, seem ready to thwart politically sensitive local initiatives they disagree with. Pre-emption is used far more to constrain efforts to impose accountability on the police and other criminal legal system actors than to support them. And the success of Florida’s HB 1 is clear warning from red-state legislators and governors that moderate local reforms may be acceptable, but transformative ones face a daunting pre-emptive veto from the state.
John Pfaff is a professor at Fordham Law School and the author of “Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform.”