Safety and Justice: who decides

Authority over safety and justice in the United States is divided among federal, state and local governments, with courts setting constitutional limits on all of them. States write most criminal law and run most prisons, counties and cities run most police departments and jails, and the federal government prosecutes federal crimes, enforces civil rights and funds state and local programs. At yearend 2023, state correctional authorities held 1,067,000 people sentenced to more than a year in prison, compared with 143,300 under the Federal Bureau of Prisons.⁠¹

In plain words

Safety and justice decisions are split among several governments. If you want a new crime on the books, a different sentence for an old one, or a change in how parole works, you usually need your state legislature. If you want more officers, different patrols or a new crisis team, you usually need your city council or county board, and the police chief or sheriff. If you want a different approach to charging cases, you usually need your local prosecutor, often called the district attorney.

The federal government matters too. Congress writes federal crimes, such as many gun and drug offenses. Federal courts enforce the Constitution, including the rules on searches, lawyers, juries, bail and punishment. The U.S. Department of Justice can sue police departments that break people’s rights, and it sends grants to states and cities.

This page maps who decides what. The companion pages explain what the public prioritizes and what the evidence shows. For how jurisdictions work in general, see Jurisdictions.

Defined terms

Authority over safety and justice is described with several legal terms.

Police power. The general authority of states to make laws for public health, safety and welfare. The Constitution does not give Congress a general police power; it gives Congress listed powers, and the Tenth Amendment reserves other powers “to the states respectively, or to the people”.⁠²

Jurisdiction (corrections). BJS defines it as “the legal authority of state or federal correctional officials over a prisoner, regardless of where the prisoner is held”.⁠¹

Jail jurisdiction. “A county (parish in Louisiana) or municipal government that administers one or more local jails”.⁠³ Jails mainly hold people awaiting trial and people serving short sentences; prisons hold people sentenced to more than a year.

Incorporation. The process by which the Supreme Court has applied most protections in the Bill of Rights to state and local governments through the Fourteenth Amendment’s Due Process Clause, as it did for the right to bear arms in 2010 and the Excessive Fines Clause in 2019.⁠^16,17

Pattern or practice. A federal civil rights standard for systemic police misconduct, enforceable by the U.S. Attorney General.⁠¹¹

Clemency. The power to pardon or reduce a sentence. The President holds it for federal offenses;⁠⁹ each state’s constitution and laws assign it for state offenses.

Federal authority over safety and justice

Federal authority over safety and justice rests on limited, listed powers rather than a general power to police. In United States v. Lopez (1995), the Supreme Court struck down a federal law banning guns near schools, holding that “the Act exceeds the authority of Congress” under the Commerce Clause and warning against federal reach into “areas such as criminal law enforcement or education where States historically have been sovereign”.⁠⁴ Congress nonetheless writes federal criminal law under its enumerated powers, and federal cases are prosecuted by U.S. Attorneys and tried in federal courts.

Federal crimes and gun law. Federal law sets national floors on who may possess firearms. It is unlawful under 18 U.S.C. 922(g) for any person “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year,” among other categories, including people subject to certain domestic violence restraining orders and people convicted of “a misdemeanor crime of domestic violence,” to possess a firearm.⁠⁵ Under 922(t), a licensed dealer must contact “the national instant criminal background check system” before completing a transfer to an unlicensed buyer.⁠⁵ States may add their own rules on top of these.

Federal pretrial and capital law. For federal defendants, the Bail Reform Act lets a judge order detention only after finding that “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community,” and bars a judge from imposing “a financial condition that results in the pretrial detention of the person”.⁠⁶ Federal law also authorizes the death penalty for certain offenses after a separate sentencing hearing, and bars it for anyone under 18 at the time of the offense.⁠⁷

Federal sentencing and prisons. Congress sets federal penalties and directs the Federal Bureau of Prisons. The First Step Act, signed December 21, 2018, created a risk and needs assessment system, allowed earned time credits toward prerelease custody for eligible people, reduced some drug mandatory minimums (for example, from 20 to 15 years in certain repeat cases) and made the Fair Sentencing Act’s crack cocaine changes retroactive.⁠⁸ These changes apply only to federal prisoners.

Clemency. Article II gives the President “power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment”.⁠⁹ A presidential pardon does not reach state convictions.

Data. Congress directs the Attorney General to “acquire, collect, classify, and preserve identification, criminal identification, crime, and other records”.⁠¹⁰ That is the legal footing of the FBI’s crime statistics, but state and local agencies “voluntarily submit data about reported crimes,” according to the Congressional Research Service.⁠¹⁴ National crime figures therefore depend on local cooperation; see the evidence page.

Civil rights and grants. Under 34 U.S.C. 12601, it is unlawful for any governmental authority “to engage in a pattern or practice of conduct by law enforcement officers that deprives persons of rights” protected by federal law, and the Attorney General “may in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern or practice”.⁠¹¹ The federal justice assistance grant authority in 34 U.S.C. 10152 lets the Attorney General make formula grants “to States and units of local government” for purposes including “Law enforcement programs,” “Prosecution and court programs,” “Corrections and community corrections programs” and “Crime victim and witness programs”.⁠¹² Grants shape local choices through funding conditions but do not command them.

Constitutional limits enforced by the courts

Courts set the outer limits of safety and justice policy at every level of government, applying the Bill of Rights to states through the Fourteenth Amendment.

• Searches and seizures. The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and requires warrants based on “probable cause”.⁠¹³
• Trial rights. The Fifth Amendment protects against double jeopardy and compelled self-incrimination and guarantees due process; the Sixth guarantees “a speedy and public trial, by an impartial jury,” notice of charges, confrontation of witnesses and the assistance of counsel.⁠¹³
• Bail and punishment. The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”.⁠¹³ In United States v. Salerno (1987), the Court upheld federal pretrial detention based on dangerousness, concluding the Act “is not facially invalid under the Due Process Clause of the Fifth Amendment” and that “the Eighth Amendment does not require release on bail” in that setting.⁠¹⁵ In Timbs v. Indiana (2019), the Court held that “the Excessive Fines Clause is therefore incorporated” against the states.⁠¹⁶
• Firearms. The Second Amendment protects “the right of the people to keep and bear arms”.⁠¹³ In McDonald v. City of Chicago (2010), the Court held that the Fourteenth Amendment makes that right “fully applicable to the States”.⁠¹⁷ In New York State Rifle and Pistol Association v. Bruen (2022), it held that when the Second Amendment’s text covers conduct, the government “must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation,” and struck down New York’s “proper cause” requirement for public carry.⁠¹⁸ In United States v. Rahimi (2024), it held that a person “found by a court to pose a credible threat to the physical safety of another” may be “temporarily disarmed consistent with the Second Amendment,” upholding 18 U.S.C. 922(g)(8).⁠¹⁹

Courts therefore decide what governments may not do, but they do not decide how many officers to hire, what to charge or which programs to fund.

State authority over safety and justice

State authority over safety and justice is the broadest in the system. State legislatures define most crimes, set sentencing ranges, decide whether to have parole boards and capital punishment, regulate policing and set many gun rules within constitutional limits. State correctional agencies run most prisons: at yearend 2023, the combined state imprisonment rate was 318 sentenced prisoners per 100,000 residents, ranging from 96 in Massachusetts to 652 in Mississippi.⁠¹ State governments made 64% of direct state and local spending on corrections in 2021.⁠²⁰

State constitutions add their own rules. New Jersey’s, as amended effective January 1, 2017, provides that “All persons shall, before conviction, be eligible for pretrial release,” but that release “may be denied to a person if the court finds that no amount of monetary bail, non-monetary conditions of pretrial release, or combination of monetary bail and non-monetary conditions would reasonably assure” appearance, community safety or the integrity of the process.⁠²¹ Other states write their pretrial rules differently. Pretrial rules are therefore a state choice, made by legislatures and, in New Jersey’s case, through a constitutional amendment.

Clemency for state offenses is governed by each state’s constitution and laws, and state supreme courts are the final interpreters of their own state constitutions.

Local authority over safety and justice

Local authority over safety and justice is where most daily decisions are made.

Police and sheriffs. In June 2018, 17,541 state and local agencies performed law enforcement functions, employing 1,214,000 full-time sworn and civilian staff; local police departments employed 59% of full-time sworn personnel and sheriffs’ offices about 24%.⁠²² Local governments made 87% of direct state and local spending on police in 2021.⁠²⁰ City councils and county boards set police budgets; how chiefs and sheriffs are chosen depends on state and local law.

Prosecutors. In 2007, 2,330 prosecutors’ offices served districts across the United States.⁠²³ Local prosecutors decide which cases to charge, which charges to bring and what pleas to offer. Those choices shape outcomes as much as statutes do, and no ranking of priorities can direct them.

Jails. Counties and cities administer jails.⁠³ At midyear 2023, local jails held 664,200 people, a rate of 198 per 100,000 residents, and 70% of them were unconvicted.⁠³ Pretrial services, diversion programs and local courts’ bail practices therefore sit largely with counties, within state law.

Emergency services. Fire, emergency medical services and 911 dispatch are also part of this subject. This page does not map them, because their governance varies widely by state and locality.

A map of safety and justice authority

Safety and justice authority can be summarized in one table, with the caution that details vary by state.

The role of courts and voters in safety and justice

Courts and voters both act as checks in safety and justice. Courts rule on individual cases and, through constitutional decisions such as Bruen or Salerno, set limits that legislatures must work within.⁠^15,18 Voters elect legislators and, where state law makes those offices elective, sheriffs, prosecutors and judges; state constitutions can also be amended, as New Jersey’s was on pretrial release.⁠²¹ Where these offices are elected, the same priority debates reach those races.

Competing interpretations of safety and justice authority

Authority over safety and justice is itself contested, and four disagreements recur.

Localism as accountability. One view holds that keeping policing and prosecution local lets communities match enforcement to their own conditions and remove officials who fail them. The Court’s language in Lopez about areas “where States historically have been sovereign”.⁠⁴ reflects this tradition.

National standards for rights. Another view holds that constitutional rights should not depend on zip code, and that federal civil rights enforcement and conditions on grants⁠^11,12 are necessary where local systems fail. Critics of that view answer that consent decrees and grant conditions can override local democratic choices.

Courts versus legislatures on guns. Supporters of Bruen see it as restoring a right that some states had treated as second class; critics argue the historical test leaves legislatures uncertain about what they may regulate. Rahimi shows the Court upholding at least some modern prohibitions under that test⁠^18,19

Who answers for crime data. Because reporting is voluntary,⁠¹⁴ some argue Congress should require it; others argue participation should be encouraged through funding rather than mandates, consistent with federalism.

Evidence

The safety and justice authority map on this page rests on primary legal texts: the U.S. Constitution,⁠^2,9,13 federal statutes,⁠^{5,6,7,10,11,12} Supreme Court decisions,⁠^{4,15,16,17,18,19} and one state constitution as an example.⁠²¹ Counts of agencies, offices, prisoners and spending come from BJS and Census Bureau data.⁠^1,3,20,22,23 Some counts are dated (prosecutors 2007, agencies 2018) because those are the most recent federal censuses found for this page.

Application to this framework

Safety and justice authority shapes how the framework handles a priority.

• Routing. When a participant ranks Safety and Justice highly, the framework points the concern toward the body that can act: a state legislature for sentencing, a county for jails and prosecution, a city for police budgets, Congress for federal crimes. See Jurisdictions.
• Proposals. A proposal must name its authority. “Change bail” means something different in New Jersey, where the state constitution governs, than in a federal courtroom. See Proposals.
• Representation. Where sheriffs, prosecutors or judges are elected, priorities can inform those races, but the framework does not endorse candidates. See Representation.
• Private voting. Any official vote, such as a constitutional amendment on bail, happens through the official election. See Private voting.

Hypothetical example: a city’s participants rank Safety and Justice first and, in a separate opinion step, express views on a proposal for a mental health crisis team. The framework would note that the city council funds it, that the police department and county health agency would carry it out, and that state law may govern who can respond to which calls.

Unresolved questions

Safety and justice authority leaves the framework with several open design questions.

• How should a participant’s priority be routed when authority is shared, such as a state law carried out by a county jail and a city police department?
• Should the framework report priorities separately for offices that are elected (sheriff, prosecutor) and appointed (police chief)?
• How can participants learn whether their own prosecutor and judges are elected or appointed without the framework appearing to campaign?
• How should a framework handle subjects where a court ruling, not a legislature, sets the policy?
• Can priority results be useful to tribal governments, whose criminal jurisdiction this page does not cover?