The Arrest Power Unchained

Eisha Jain, Arrests as Regulation, 67 Stan. L. Rev. 809 (2015).

In standard criminal procedure and criminology texts, the concept of “arrest” receives surprisingly little attention. Arrest is portrayed as a way station on the road to trial. It is also portrayed as a meaningful sorting device: a determination that the criminal justice system has just cause to restrict an individual’s liberty, if only temporarily. For those who view arrest in these terms, coverage of recent events has provided a dramatic crash course in the true nature and scope of the arrest power. In Ferguson, Missouri, for example, Michael Brown’s arrest, which gave rise to the chain of events resulting in his death, was for the crime of “manner of walking along roadway.” Arrests on this charge were frequent in Ferguson, and 95% of those arrests were of African-Americans. Across the U.S., arrests for seemingly innocuous behavior are common; discretion to make the arrest “custodial” is generally broad; and the burden of arrests for misdemeanors and minor infractions falls disproportionately on minorities. One in three adults will be arrested by the age of 23. For minorities, the odds are even more shocking: 49% for African-American men, and 44% for Latino men. Legal scholars such as Babe Howell and Alexandra Natapoff have examined the often- draconian consequences of such arrests on individuals, including the process costs of contesting the charges and the lasting stigma of an arrest record. And as powerful recent scholarship by Alice Goffman, Michelle Alexander and Jill Leovy drives home, the arrest power is properly understood not merely as a restriction on individual liberty, but as a means of social control that holds entire communities in the grip of the criminal justice system.

Eisha Jain, in her valuable, meticulously documented article Arrests as Regulation, describes and critiques an additional set of burdens triggered by the broad, poorly circumscribed power to arrest—burdens that reach well beyond the criminal justice system. Arrests are used as a proxy, or a low-cost auditing mechanism, by agencies regulating public housing, public benefits, licensing for various professions, education, child welfare, and immigration, as well as by employers and other non-governmental actors. These agencies and individuals use arrests as a means of monitoring and tracking individuals (for example legal immigrants, foster parents, school children) and a means of setting regulatory priorities (for example determining who is entitled to public housing or employment or professional licensing). Agencies and individuals rely on arrests to assess the individual’s potential for violence, risk to security, or instability. In short, as Jain succinctly states, we have delegated broad front-end screening discretion to individual police officers, thus magnifying the effects of arrest decisions. The reasons for the arrest (even assuming the arrest is justified) often have little relevance to the rationales underlying the regulations at issue. Moreover, the use of the arrests often proceeds unchecked by any of the safeguards that would apply in the criminal justice context.

Jain describes several types of interactions between arrest and non-criminal consequences, many of them extremely troubling. For example, non-criminal consequences provide an incentive to law enforcement agents to circumvent the law. Evidence that is inadmissible in a criminal trial is often used in non-criminal contexts such as immigration hearings, and where consequences like deportation align with police priorities, the incentive to engage in illegal practices is magnified. Moreover, arrestees have no right to counsel in non-criminal proceedings, and often little or no access to the information used against them. Conversely, the use of arrest information in non-criminal contexts may directly conflict with law enforcement priorities. Examples include domestic violence victims evicted from public housing because the abuser lives under their roof; or cooperating witnesses deported before trial. On a deeper level, the use of arrests—often unverified, generally not subject to timely challenge in civil court—exacerbates the crisis of confidence in the police power and undermines the integrity of the criminal justice system.

One of the things I like a lot about this article is that it is filled with useful information. It illustrates and backs up each of its claims with well-documented examples, and builds a damning case through the careful accretion of detail. Although some of the issues it addresses have received attention from immigration scholars, the article places the immigration account in the larger context of non-criminal consequences more generally. Along the way, it acknowledges that sometimes coordination between criminal and civil authorities is worthwhile. Yet it leaves the reader convinced that little effort has been expended on appropriately regulating the use of arrest information, and that the results have been devastating, particularly in communities that already bear the overwhelming costs of the misuse of the arrest power.

Cite as: Susan Bandes, The Arrest Power Unchained, JOTWELL (July 13, 2015) (reviewing Eisha Jain, Arrests as Regulation, 67 Stan. L. Rev. 809 (2015)),

Rethinking Proportionality in Punishment

Like the Chimera of Greek mythology, American penal thought has its own powerful and elusive forces. In the world of punishment, proportionality occupies a similar space in the American imagination. The fancy of proportionality is to balance the severity of punishment with the severity of crime. On its own, the task is herculean, yet in practice, success becomes absolutely elusive due to consequentialist considerations that continue to shape law and policy.

In this article, Lacey and Pickard show why proportionality cannot deliver on its promise of equalizing punishment. In the ‘neo-classical’ articulation, punishment has come to be understood as a morally appropriate equivalent to an offense, which in theory is constrained by the requirement of proportionality. However, the authors argue that proportionality generates in itself no concrete limits to punishment, and that the question of “how much” remains open to the sways of convention, political decision, and expediency.

This contention means that the cornerstone of retributive thought, proportionality, is far more complicated than “eye for an eye”-isms suggest. Rather, what has been thought of as proportionality is a product of political and social construction, cultural meaning-making, and institution building.

The explanatory power of this insight is worth pondering. Foremost, it helps explain why what was proportional 50 years ago is no longer. In the American context in particular, the notion of proportionality has come untethered from social referents, resulting in a spectacular grade-inflation, with prison sentences that were unthinkable back then, now the status quo.

Drawing on evolutionary psychology and comparative political economy, the authors examine differences between American and Scandinavian punishment. A major difference, they suggest, is that the American application of proportionality is no longer organized around a moral structure as a means to limit punishment. There is no agreed mechanism for anchoring the penalty scale, no religious ritual or sacred symbols of power, rather, punishment is driven by cardinal convention, calculations of consequences, and political dynamics.

Compounding this disconnect is the American will to retaliation. As a basic response to criminal conduct, this sentiment serves to escalate aggression and threaten ongoing relationships. The group tensions are exacerbated in proportion to the differences between those punished and the dominant group, with the greater the difference, the harsher the punishment. This picture flips the equivalency of proportionality on its head, since class, race, and social status are more likely to determine the scale of punishment than any intrinsic calculus. From this view, it might appear no accident that prison sentencing skyrocketed in the decades that punished indigent, uneducated, ethnic minorities the most.

As criminal justice effectively functions to maintain hostilities between groups, the authors advocate reconciliation as means to avoid polarization and reduce inequality. Mending the rifts necessarily involves legitimizing and civilizing of punishment, which itself depends on legitimizing and civilizing of criminal law. Success in these endeavors entails deeper understanding of the conditions required and supporting institutions that can deliver proper responses to crime. The key is to transform an untamable beast into a stable-mate.

For students of punishment theory, this article underscores that proportionality is not self-evident. It is perhaps less mathematical formula than cultural construct. In the present, proportionality floats in instability, unanchored to genuine social more. Although eye for an eye punishment may not be the accepted way, the notion of just deserts remains—and with it—the central difficulty of measuring an eye’s worth of pain.

The work also offers a fresh take on understanding the dramatically increased scale of punishment in America. It conveys that the scale is skewed because of calibration failure; simultaneously it soberly and somberly suggests that if wealthy, educated whites were the dominant subjects of punishment, sentencing would look very different than it does now.

Still, one wonders whether there is more anchoring than suggested. For example, the justice system is greatly indebted to religious forms and rituals, particularly criminal courts, where 12 jurors and a judge ritualize the biblical story of revelation; similarly, penitentiary as punishment has as nearly a long pedigree in Christian thought and practice. Although it is contended that these meanings have faded, a more troubling read might indicate pure sublimation—that religious conviction is driving the penal status quo. It is harkens to Bourdieu’s idea that some practices ‘go without saying’ because they came without saying. Thus, some of the anchoring may be somewhat invisible, despite that weekly, at all levels of society, masses of Americans come together to hear and talk about the imprisonment, torture, and capital execution of Jesus.

One also wonders whether eye for an eye literalisms are as foregone such as not to complicate the thesis. It may be true that purely retributive punishments are not viewed as appropriate responses to crime—but this might not hold for murder. The prison as a one-size-fits-all punishment seemingly abandons lex talionis, but whether the baseline holds for capital punishment is uncertain.

The critical questions raised by this work underscore that legal punishment must be treated perhaps more differently than any institution in society. It is the most poignant way for a state to exercise power over the naked body and it must be effectively constrained. Although the Supreme Court has been exceedingly reluctant to intervene in state and federal sentencing schemes, this work challenges that proportionality, as understood and applied today, will always fall short of just.

Cite as: SpearIt, Rethinking Proportionality in Punishment, JOTWELL (June 10, 2015) (reviewing Nicola Lacey and Hanna Pickard, The Chimera of Proportionality: Institutionalizing Limits on Punishment in Contemporary Social and Political Systems, 78 Mod. L. Rev. 216 (2015),

“Driving While Black” Redux: Illuminating New and Myriad Aspects of Auto(matic) Inequality

Charles R. Epp, Steven Maynard-Moody, and Donald Haider-Markel, Pulled Over: How Police Stops Define Race and Citizenship (2014).

In the wake of a recent spate of police killings of unarmed young, black males in various states, we have once again been reminded of the problematic connections between identity, crime and justice in the United States. For example, the stories surrounding the deaths of Michael Brown (Ferguson, MO), Eric Garner (Staten Island, NY), Tamir Rice (Cleveland, OH), and Walter Scott (North Charleston, SC) reflect the urgency of this Country’s lingering need to seriously consider the differential policing of African-American boys and men. The effect of the killings has been so dramatic that along with the death of Trayvon Martin at the hands of George Zimmerman in Sanford, FL, they have inspired a social movement, the motto of which is “Black Lives Matter”. While socially conscious movements stressing the need for equal treatment for people of color are important, in our ostensibly post-race world, large swaths of the citizenry are still likely to view with skepticism claims that racial animus and unconscious bias routinely infect policing. Within this context, little can be done to address vulnerabilities of the socially marginalized without the assistance of compelling empirical data. A new and excellent source of such research is found in Pulled Over: How Police Stops Define Race and Citizenship (2014). This book describes the results of research conducted by University of Kansas scholars Charles Epp, Steven Maynard-Moody and Donald Haider-Markel, which powerfully demonstrates how police practices not only reflect racial bias but operate to construct understandings of race and societal status.

The study at the heart of the text analyzes survey data for over 2300 police stops of motorists in the Kansas City metropolitan area. Based on 708 survey responses for drivers stopped by police, 30 percent of which were from black drivers (P. 20), a key finding of the study is that the effect of race on traffic stops depends on the justification for the stop. For traffic safety stops, which the authors describe as “must stop” situations involving potentially serious violations (P. 60), Blacks are less likely than Whites to a statistically significant degree to be provided such justifications for their stops. This is so because the most important influence on these stops is “how people drive.” (P. 64). With investigatory stops—essentially described as stops for low-level violations—by contrast, Blacks a more likely than Whites to a statistically significant degree to be provided such justifications. Low-level stops, then, are significantly influenced not by driver conduct, but “how they look.” (P. 64). Beyond this illuminating finding connecting the consideration of race in stops to the type of traffic stop, the study considers the relevance of a number of other driver and auto characteristics for police stops. Looking at such characteristics as gender, age, class and driver behavior, the data support additional findings for investigatory stops. (P. 68-69). For example, certain low-value vehicles—a marker for socioeconomic class—were stopped more often, race mattered more when drivers were perceived as driving in locations where they were “out of place” and that young Black males driving low-status vehicles were the most vulnerable minority drivers. (P. 70-71). These survey data alone add significant nuance to our understanding of how perceived driver identity and behavior affect policing. The study, however, also collected interviews from among the survey participants. (P. 21). Using these interviews, throughout the text the researchers weave in driver narratives that provide powerful qualitative evidence of how drivers internalize the consequences of racially disparate policing.

There is much to appreciate about Pulled Over. Beyond illuminating the race distinctions between the policing of traffic safety and investigatory stops, the analysis of investigatory stops focuses on how these stops operate as institutional practice rather than as a by-product of individual police animus. (P. 38-39). Moreover, and importantly, the text explicates how the practice is important for co-constructing citizen understandings of race, and the debilitated status that accompanies certain minority racial categories. The authors demonstrate how this is done by the stops building on and accentuating negative racial stereotypes. (P. 12, 50).  Second, these results reveal the danger of the U.S. Supreme Court decision in Whren v. U.S., 517 U.S. 806 (1996), where the Court found stops based on minor infractions to be lawful even if they are partially motivated by race bias. Pulled Over reveals that considerations of race are most salient in the very low-level infraction environment in which the Court is unwilling to intervene. Third, the combined effect of the quantitative and narrative data, is not only to fully paint a picture of the story of police stops but effectively demonstrate how racially disparate stops convey a sense of second-class status. (P. 136). Not only does this data help to confirm the dangers of police profiling, but to explain why certain minority drivers are distrustful of police and more generally question the legitimacy of police stops.

The final chapter of the book includes a proposal for reforming police institutional practices for traffic stops. The proposal seeks to reduce the racial disparities between traffic safety and investigatory stops by only allowing stops where police have “clear evidence of criminal behavior.” (P. 161). Additionally, searches during the stops would require probable cause, and police would need to develop internal oversight guidelines for stops. (P. 161-162). While I am not particularly hopeful about the wide-spread implementation of the proposal in police departments throughout America, this work still makes a powerful contribution. First, it stands as an excellent example of informative law and society research that takes race seriously. Critical Race Theory (CRT) scholars have recently been calling for such work as an important first step in exploring potential synergies between social science empirical research and the CRT anti-subordination theories constructed largely from the lived experience of individuals. Second, the work’s emphasis on police stops as sites that manifest structural racism and convey a sense of a diminished quality of citizenship, should assist all but the willfully blind in better understanding the causes and consequences of racially biased policing. Concerning ourselves with this aspect of the text could help to move our national conversation about race and policing away from the notions of perceived black criminality that partially explain incidents such as those in Ferguson, Staten Island, Cleveland, and North Charleston, toward conversations about the actual inequality that routinely shapes the lives of young, black men in the United States.

Cite as: Mario Barnes, “Driving While Black” Redux: Illuminating New and Myriad Aspects of Auto(matic) Inequality, JOTWELL (May 13, 2015) (reviewing Charles R. Epp, Steven Maynard-Moody, and Donald Haider-Markel, Pulled Over: How Police Stops Define Race and Citizenship (2014)),

Democracy as a Cause of and a Solution for Hyper-Incarceration

Andrew E. Taslitz, The Criminal Republic: Democratic Breakdown as a Cause of Mass Incarceration, 9 Ohio St. J. Crim. L. 133 (2011).

One of the last articles written by the late Andrew Taslitz (known as Taz to his friends) was entitled The Criminal Republic: Democratic Breakdown as a Cause of Mass Incarceration. The piece is quintessentially Tazian. It brings together Taz’s concern for racial minorities and criminal defendants, his belief in the reformist potency of democracy, and his fascination with social scientific findings (including research on “happiness”!), in a provocative effort to tackle the single biggest problem in our criminal justice system today: mass incarceration. His prescriptions in the article—in particular his assertion that “populist, deliberative democracy” can be a way of softening the harshness of American criminal justice—are worth taking seriously.

As Taz described it, populist, deliberative democracy (or PDD) is not regular old democracy. Rather, in the criminal justice context it involves all “social groups,” including convicted offenders, in deliberations that take place in multiple venues, with the expectation that “compromise rather than domination” will occur. He contrasts this type of democracy with “raw populism” that is not deliberative and that tends to be based on less information about competing interests. Although Taz did not think PDD would by itself result in less reliance on incarceration, he does marshal some strong evidence that it could move the country in that direction.

In making this case, Taz relied on five sources. He first compared the U.S. to Europe, where incarceration rates and sentences are much lower, despite roughly equivalent crime rates. Most relevant here is Taz’s description of the contrast between what comparativists like Michael Cavadino, James Dignan and Nicola Lacey call “liberal market economies,” of which the U.S. is a prime example, and “coordinated market economies,” which predominate in Europe. A liberal market economy aims at a free-market “characterized by vibrant economic and political competition in a relatively regulatory-free world,” and thus tends to generate a distrust of government intervention and produce adversarial and polarized legislatures and bureaucracies. A coordinated market economy, in contrast, is more heavily regulated, in an effort to please a wide array of groups; it tends to be associated with proportional representation and multi-party governance. According to Taz, the impact of a coordinated economy and more diffuse democratic process on criminal justice policies is at least two-fold. First, “[t]he broad-based, coalitional nature of the electoral system . . . makes it harder for any one social group to use criminal justice as a way to wage war on another such group.” (P. 156). Second, the same coalition-seeking reduces the ability of any given party to control policymaking, which, together with a greater trust in government generally, increases deference to relatively lenient criminal justice experts. The result, borne out by data comparing criminal justice systems in liberal market and coordinated market economies, is less severe punishment.

Taz also delved into the research contrasting democratic proclivities within the United States. For instance, Vanessa Barker looked at the criminal justice systems and associated politics of three states: California, Washington and New York. As Taz notes, Barker found that, while Californians’ easy access to the referenda process is highly populist, their democracy is not “deliberative” in the PDD sense, but rather captured by relatively powerful (and white) social groups that tend to favor punitive policies such as three-strikes laws. In contrast to this “raw populism,” Washington’s use of town-hall meetings and hybrid state-citizen commissions has led to government endorsement of diversion programs, community-based alternatives to prison, and shorter sentences. In-between in terms of punitiveness is New York, which eschewed grass-roots input like Washington’s but also avoided the raw populism of California. Instead, New York relied heavily on the deliberations of experts who generally carried out the crime control agenda favored by politicians, but mediated it with their empirically-based knowledge that non-violent offenders usually do not require imprisonment. To Taz, Barker’s work reinforces the conclusion that PDD has moderating effects on punishment policy.

The third area Taz examined—the study of local politics and criminal justice—picks up the same themes. Here Taz relied on the work of another political scientist, Lisa Miller, who looked at data from Pennsylvania, and in particular Philadelphia and Pittsburgh. According to Taz, Miller found that anti-incarceration groups tend to come from the most heavily-policed and most crime-ridden neighborhoods (which also tend to be populated mostly by minority groups), because “their experience teaches them that crime is a multi-faceted problem that requires multi-faceted solutions” and the rejection of retribution-centered approaches. These findings led Taz to conclude that “giving local urban racial communities in heavily-policed areas more of an ‘effective’ voice in state and federal legislatures—a voice prompting serious deliberation and having the prospect of altering criminal justice policy—should serve as an anti-incarceration counter-force.” (P. 173).

Taz then turned to the results of what he calls “democratic social science.” The primary finding here is that people become much less punitive and much less focused on retribution when they are given detailed information about a perpetrator and his or her crime and allowed to deliberate on a just result. Thus, for example, Taz reports a study that found that respondents were much tougher on burglars in the abstract than they were when told about specific cases involving burglary. “Deliberative polling” that informs respondents about the many alternatives to imprisonment or that makes clear that respondents will be held “accountable” for their views also tends to produce more lenient punishments. Taz argued that incorporation of vignettes and deliberative polling into decisions about criminal justice is another way in which democracy could reduce hyper-incarceration.

Finally, Taz gleaned what he could from “happiness jurisprudence,” a diffuse body of research, which he claims supports the conclusion, “with little to challenge it,” that PDD promotes happiness. That state of mind in turn reduces both criminality and “the emotional need to strike back at perceived threats to safety by means of severe sentences of incarceration.” (P. 178). The primary manner in which PDD produces these results is, once again, through providing a means of giving people effective voice. Voice promotes esteem-building perceptions of autonomy and competence, and thus counters crime-inducing factors. More importantly in terms of affecting attitudes toward incarceration, Taz argues that, because PDD requires listening and acquiring information, it promotes empathy, which is a key requisite for compassion and the willingness to mitigate in cases involving people from “outside” groups.

Taz’s article makes a convincing case for PDD as a mechanism for rethinking hyper-incarceration policies. American democracy—Taz’s raw populism—is not incapable of changing incarceration-friendly policies; in recent years several states, reacting primarily to fiscal concerns or judicial mandates, have enacted laws that have the effect of reducing the prison population. But our criminal justice system is still more punitive by several orders of magnitude than Europe’s. If dramatic change is to occur, something more fundamental than an economic downturn is required. In that regard, local deliberations by informed citizens from all walks of life, informed by experts, could be part of the recipe for a more empathetic, less prison-heavy regime.

As Taz recognized, however, instituting PDD throughout the country—even at the level experienced in Washington state, much less to the ideal extent he envisions—is a “daunting” task.   He does not flesh out his thoughts on that subject. In a recent in a symposium tribute to Taz, I use Taz’s work as a springboard for explaining why, in contrast to European culture, American culture is unfortunately particularly infertile ground for PDD. In the meantime, The Criminal Republic should be read by everyone interested in criminal justice, both for its intrinsic worth and as a reminder of our friend, and great scholar, Andrew Taslitz.

Cite as: Christopher Slobogin, Democracy as a Cause of and a Solution for Hyper-Incarceration, JOTWELL (April 15, 2015) (reviewing Andrew E. Taslitz, The Criminal Republic: Democratic Breakdown as a Cause of Mass Incarceration, 9 Ohio St. J. Crim. L. 133 (2011)),

Decriminalization and Its Discontents

Alexandra Natapoff, Misdemeanor Decriminalization, 68 Vand. L. Rev. ___ (forthcoming 2015), available at SSRN.

Have we reached a turning point in criminal justice? Political leaders, criminal justice actors and even the general public have come to agree that our criminal justice system is broken. It delivers a product that is long on punishment, but short on justice, mercy, efficiency, cost-effectiveness and rationality. Consequently, states are moving to shorten some drug sentences, to decrease overall imprisonment rates, and to legalize or decriminalize marijuana possession. We are even witnessing manifestations of leniency from the public: witness the California voters’ 2014 roll-back of that state’s notorious “three-strikes” law.

Clearly, we are at an inflection point. But is this a true turning point? Or are we witnessing another historical moment in which harsh and unequal criminal justice systems demonstrate the uncanny ability to achieve preservation through transformation in the face of widespread criticism? In her article Misdemeanor Decriminalization, Sasha Natapoff helps her readers to wrestle with this question. The answer may not be as encouraging as we might have hoped.

One of the key developments in the purported trend away from severity has been the decriminalization of misdemeanor offenses. Decriminalization takes many forms, from full decriminalization, in which conduct remains punishable as a civil infraction, but not criminal, to less complete decriminalization, in which conduct remains criminal, but the state offers shorter sentences, deferred sentences or treatment options in lieu of criminal punishment. Decriminalization has been heralded as an important step away from the hyper-punitive and racially discriminatory criminal justice policies of the past four decades, and it offers some promise in this regard. While recognizing the potential benefits, Natapoff reminds us that these developments do not necessarily push in a single direction toward decreased punitiveness, greater fairness and more freedom. She reminds us that decriminalization also has its costs.

As Natapoff explains, decriminalization is not the same as legalization, and this difference matters a great deal. “Decriminalization does not render conduct legal. Instead, it typically reduces penalties—mainly incarceration—for conduct that remains illegal and forbidden. Accordingly, while misdemeanor decriminalization eases the immediate punitive impact of the penal system, it leaves in place the vast web of forbidden conduct and its accompanying law enforcement apparatus.” (P. 3).

Natapoff acknowledges that there are many benefits to decriminalization, including reduced incarceration rates, and sometimes reduced arrest rates, and a reduced burden on the very over-burdened defense bar. (P. 4). But these well-publicized upsides are accompanied by some less widely-considered downsides. Natapoff identifies three significant downsides in her article. First, she reminds the reader that decriminalization does not strip the offense of all of its consequences – and these consequences sometimes wind up being identical to those of criminal sanctions. Misdemeanors that carry no jail time may still entail “arrest, probation and fines, criminal records and collateral consequences.” (P. 5). Arrests alone are worrisome enough, and Natapoff reminds us that decriminalization does not take arrests off the table in all jurisdictions. As events of the last few months remind us, the consequences of arrest can be severe and even fatal. Those who resist arrest risk death; those who are arrested successfully can be subjected to intrusive and demeaning searches,1 checks into immigration status can lead to deportation,2 and an arrest record that can affect their employment prospects, housing options and education loan opportunities. (P. 28). These possibilities are all the more concerning because many individuals who engage in targeted behavior may be unaware of all of these risks, given the purported “decriminalization” of their conduct.

Also concerning is the fact that those who receive fines for their conduct will often agree to the fines in uncounseled settings. While this seems intuitively acceptable in such apparently low-stakes situations, an individual’s later inability to pay a fine can lead to contempt citations and imprisonment, thereby putting her back in the same place from which decriminalization had promised an exit – but this time without the procedural backstops that the criminal justice system carried with it prior to decriminalization. (P. 29-34).

The second downside of decriminalization flagged by Natapoff is net-widening. Decriminalization “makes it possible to reach more offenders by simplifying the charging process and eliminating counsel [and] other forms of due process.” (P. 5). Simultaneously, it “widens the impact of the net, by turning to supervision and fines as indirect, long-term constraints on defendant behavior, and by extending the informal consequences of a citation or conviction deep into offenders’ social and economic lives.” Id. In some cases, the extensive monitoring and payment system kicked off by a citation for a decriminalized offense may look much more intrusive than the criminal sanctions that accompanied the offense prior to decriminalization. Natapoff describes the many ways that supervision and fines result in the long-term and intrusive monitoring of certain targets, and reminds the reader that the burdens are not shared equally by members of all races and classes.

The third unheralded downside of decriminalization is its costs for the poor. As Natapoff writes, “decriminalization functions as a kind of regressive tax.” (P. 5). Criminal justice actors who increasingly rely on fines for their funding can and do use the fines for decriminalized infractions as a revenue source. Individuals who are able to pay their fines help to fund the system. Those who can’t pay are the poor – a group that Natapoff reminds us is disproportionately made up of people of color. And it is in poor and over-policed neighborhoods where these fines fall heaviest. Decriminalization can make it more expensive to be poor.3 As Natapoff writes, “by decriminalizing minor offenses, we risk turning the most vulnerable population into funding fodder for the very institution from which we are trying to protect them. That, paradoxically, makes decriminalization a kind of regressive economic policy masquerading as progressive penal reform.” (P. 5-6).

While Natapoff ultimately views the benefits of decriminalization as significant, her article offers an important corrective to the notion that the current wave of decriminalization is an easy and cost-free remedy for the ills of over-incarceration and discrimination in the criminal justice system. We must confront the possibility that the poor and the disenfranchised – not the most culpable – will be the increasingly fine-tuned and heavily-penalized targets of criminal justice in the era of decriminalization. Natapoff’s article is therefore a very important contribution to ongoing conversation about how criminal justice reform should proceed.

  1. See Florence v. Board of Chosen Freeholders, 566 U.S. ___ (2012). []
  2. U.S. Immigration and Customs Enforcement, Secure Communities, (last visited Jan. 17, 2015. []
  3. Charles Blow, How Expensive It Is to Be Poor, New York Times, Jan, 19, 2015, at A19. []
Cite as: Jennifer Chacon, Decriminalization and Its Discontents, JOTWELL (March 20, 2015) (reviewing Alexandra Natapoff, Misdemeanor Decriminalization, 68 Vand. L. Rev. ___ (forthcoming 2015), available at SSRN),

Finding Old Puzzles in New Places

Adam Hosein, Are Justified Aggressors a Threat to the Rights Theory of Self-Defense? In How We Fight (Helen Frowe & Gerald Lang eds., 2014).

At an informal philosophy workshop on self-defense I attended, the participants noted that their theorizing is relevant to everything from war to torts to preventive detention, but, they reflected with surprise, their work is less important to the criminal law of self-defense. The reason for this is somewhat simple—because the law adopts bright line rules and relies on the defender’s reasonable beliefs, many of the nuances articulated by philosophers are lost.

Adam Hosein’s book chapter is likewise not primarily a contribution to criminal law’s conception of self-defense, but it is a contribution to criminal law’s understanding of necessity. In the guise of questions about the applicability of self-defense to just war theory, Hosein’s piece ultimately has bearing on the criminal law puzzle of lesser versus least evil.

You may have never thought about this puzzle, but it is certainly there.   Should the law require that a defendant commit the least evil alternative, or is simply a lesser evil sufficient? On the one hand, if you can do more good than harm, then it seems irrelevant that you could have done less harm than you did—you still did the “right” thing after all. On the other hand, there seems to be something amiss in thinking that one has a free pass to do more harm when a lesser alternative is available.

Examples of this begin with the mundane. Your friend is sick and you decide to drive him to the hospital at breakneck speed. Given how sick he is, you are justified in imposing that risk. However, you can also call 911, which will decrease the risk to pedestrians. If you opt to drive, are you reckless for taking an unjustifiable risk? Examples also range to imaginary trolley problems. Assume that you can turn the trolley away from the five to either a track with one person, whom you don’t know, or a track with two people, both of whom you despise. If you are going to save five and will only save the five if you can turn the trolley to the two, are you justified? Killing the two is the lesser evil, but it is not the least evil.

Hosein’s paper intersects the debate because it asks this question—should the victims of lesser evils justification be entitled to fight back against you, the trolley turner? And are they particularly justified in doing so when you, the trolley turner, could have internalized the risk rather than imposing it on others? He begins in the context of war where a tactical bomber will kill civilians while achieving a justified good consequence. May the civilians fire at the bomber? Intuitions go in both directions. Some might think that of course the civilians need not sit there and allow their destruction. On the other hand, how is it that one is entitled to thwart a justified action?

Hosein’s philosophical target is Jeff McMahan’s claim that because the bomber is justified, the bomber has not forfeited rights. In self-defense theory parlance, the bomber is not “liable” to defensive force. Thus, Hosein is interrogating the claim that “justification defeats liability.” Hosein maintains that it does not.

In a series of sophisticated moves I won’t reiterate here, Hosein argues for two principles. The first is “the principle of just beneficence.” (P. 94). The idea is that if one is going to intervene and distribute a harm, one must do so in the way that “best conforms to the requirements of justice.” (P. 95)   And, importantly for Hosein is the underlying premise that “people should bear the costs of their own beneficence rather than displacing these costs on others.” (P. 95).

His second argument is that the civilians may defend against the bomber because the bomber is liable. Specifically, “people become liable to harm when they are going to either violate or infringe a right.” (90). Importantly, Hosein is not arguing that the civilians may prevent the bomber from bombing. The reason is that so doing would interfere with the justified action. But that bar from action has nothing to do with the bomber’s immunity from harm. To the extent that the civilians are able to prevent harm to themselves by shifting the harm to the bomber, without thwarting the bomber’s mission, then Hosein says this is permissible. (Imagine the civilians could use a shield that would deflect the debris from the bomb so that it causes the plane to crash after the bomb has dropped). Hence, any concern we have that the civilians not harm the bomber is not a function of the bomber’s rights but solely a function of protecting the achievement of the good end.

Some of you may ask why I see Hosein as contributing to the lesser versus least evil debate. So ask this question now: May the two people on the one side-track of the trolley shoot you, the trolley turner, so that your body lands on the levers and turns the trolley toward the one? Hosein’s answer is clearly yes. After all, under “the principle of just beneficence,” you ought to distribute the harm justly, and arguably, here the most just distribution would be the least evil. And, because you are infringing the rights of the two, they may defend themselves. Notably, it does seem that you, the trolley turner, are somehow liable to the harm; after all, it seems that your body can be used as a means to accomplish the least evil.

Ultimately, I find myself unsure that Hosein’s principles best account for our intuitions. I am sure he is quite right to parse the inability of a victim to prevent the lesser evil from the potential immunity from harm held by the aggressor/trolley turner. However, at this point, I wonder whether he has shown us something deeper about the nature of liability in self-defense or whether he has shown us something deeper about the nature of justifications. That is, my suspicion is that perhaps the action is, in some sense, not justified after all. This would preserve “justification defeats liability,” but cause us to revisit how we conceptualize whether a lesser evil may be permissible to cause when a least evil is achievable.

Cite as: Kimberly Ferzan, Finding Old Puzzles in New Places, JOTWELL (February 16, 2015) (reviewing Adam Hosein, Are Justified Aggressors a Threat to the Rights Theory of Self-Defense? In How We Fight (Helen Frowe & Gerald Lang eds., 2014)),

Ending the “Correctional Free Lunch”

W. David Ball, Defunding State Prisons, 50 Crim. L. Bull. 1060 (2014), available at SSRN.

Professor W. David Ball has outlined a fundamental pathology of American criminal justice policy and offered a solution. The problem is that states generally pay the full cost of imprisonment, but they do not decide who goes to prison. Instead, most police and prosecutors act at county levels or below. In an era where mandatory sentencing is common, every cop, prosecutor and judge can write any number of six- or seven-figure checks that someone else must pay. Thus, when a prosecutor makes a charging decision or makes a sentencing argument to a judge, no one involved need consider whether the cost of imprisonment represents a net benefit to society. A long sentence takes nothing from the budget of the judge and prosecutor, just as a short sentence or non-prison sentence does not preserve resources usable for something else. The state offers prosecutors and judges a choice: on the one hand, unlimited free prison; in the alternative, nothing.

The absence of a close connection between decisionmaker and funder might have been tolerable when prisons housed a far smaller share of the population, and the number of offenses in state penal codes were much fewer. But the United States has had record rates of imprisonment in recent years, for an array of crimes, a large number of which are not common law felonies or other traditional moral wrongs.

The rise of mass incarceration may well result in part from the criminal justice system’s repeal of the law of scarcity. The problem goes beyond the fact that judges and prosecutors faced no trade-offs and thus never had to consider the wisdom of their uses of resources when sentencing to prison. Even though in some set of cases probation, diversion or other alternatives to incarceration instead of prison is cheaper, better promotes public safety, and is less traumatic to the community, local officials have every reason to use these them sparingly, because they are generally required to pay for them. In these cases, free prison is costly and counter-productive.

Professor Ball proposes to give the counties trade-offs in a highly non-coercive way.   One alternative is block grants based on crime rates. “Localities would receive funds based on reported rates of violent crime and would be free to spend these monies on prison, diversion, jail, or anything else. The state would continue to administer prisons but would charge counties for every prisoner they sent.”

Under this scenario, prosecutors and judges would face very different choices than they do now. It is one thing to spend millions prosecuting and incarcerating marijuana users and sellers if it is that or nothing; perhaps because it is free, a tough-on-crime judge or prosecutor might find it reasonable to send a three-strike defendant to prison for 25 years or life for shoplifting. But if instead the county could use that money to hire more police, probation officers, or teachers, elected officials would be compelled to confront the trade-offs involved in draconian sentences.

Whatever the details of the system, Professor Ball argues that localities should be forced to bear the consequences of their choices. They need not, he emphasizes, reduce incarceration rates. Police, prosecutors and judges would retain their current discretion; they would be free to impose, for example, even longer sentences on even more people than under the current system. But they would have to find the money, raising revenues or cutting services elsewhere, and they would be politically accountable for their choices. As Professor Ball explains, “[t]he average person could more easily spot the linkage between increasing numbers of prisoners and, say, a decrease in the frequency of road repairs or a shorter public school year, allowing political checks on criminal justice to operate more effectively.”

Of course, there would likely be political objections from those who benefit financially from the wasteful decisions encouraged by the current system.   But it is hard to identify principled objections. Under Professor Ball’s proposal, counties could have the criminal justice system they want and are willing to pay for. They could decide whether mass incarceration is the best use of county funds or if other programs and expenditures should have higher priority. And local governments would be encouraged to innovate to protect public safety in more cost-effective ways. Whatever their effect on incarceration rates, these changes can only improve the criminal justice system.

Cite as: Jack Chin, Ending the “Correctional Free Lunch”, JOTWELL (January 14, 2015) (reviewing W. David Ball, Defunding State Prisons, 50 Crim. L. Bull. 1060 (2014), available at SSRN),

Dignity, too

The police killing of Michael Brown this summer in Ferguson, Missouri, sparked a nationwide wave of outrage at heavy-handed police behavior generally and toward young men of color in particular. But scores of young black men are killed every year by the police, many in even more suspicious circumstances; what made Ferguson different? One significant element was the fact that police left Michael Brown’s body exposed to public view and the hot sun for some four hours. Perhaps even more than the shooting of Michael Brown (which might yet be given an explanation), the exposure of his body for such a prolonged period, conveyed to millions through social media, constituted a striking violation of social norms of respect which appeared to have no possible explanation. Leaving his body to deteriorate in the view of his family and neighbors seemed to reflect the fact that police did not view Michael Brown as a human being, or his neighbors as citizens worthy of respect. The police shooting may in fact have been justified, but their treatment of Michael Brown’s body defiled human dignity

The growing sense that the carceral state (both police and prisons) has become a threat to the human dignity of Americans is an important new dimension of political and legal opposition to the supersized role that it now plays in our lives. Objections to NSA digital snooping, outrage at mistreatment of mentally ill prisoners, and protests against the routinized degradation of “stop and frisk” policing are growing. And these arguments are working not just in the street but in courts, where in Brown v. Plata in May 2011, the Supreme Court reminded American states that prisoners “retain the essence of human dignity inherent in all person[s].” So far, however, the force of dignity has had little influence on challenges to police using their arrest and related powers under the Fourth Amendment.

In “Probable Cause, Constitutional Reasonableness, and the Unrecognized Point of a Pointless Indignity,” Josh Bower’s offers us a compelling argument for placing dignity as a core part of the Fourth Amendment analysis of such police action. In addition to showing how important human interests in law are implicated by dignity and ignored without it, Bower’s use of dignity will help reassure dignity skeptics that the concept can be used in a disciplined and judicious way.

Bower’s starts with a case that has frustrated many of the Court’s criminal procedure scholars, 2001’s Atwater v. City of Lago Vista, in which the majority upheld the arrest of Gail Atwater for a minor traffic violation (not wearing a seat or securing her children in seat belts) for which jail was not even a possible sanction once convicted. The case in which the majority acknowledged that the police officer’s behavior was an example of a “pointless indignity” and a “gratuitous humiliation” is a powerful example of the limits of the legality principle as a protection against arbitrary state power. For centuries now, criminal lawyers and criminal law scholars have embraced the idea that state coercion in general, and punishment in particular, must be authorized by discoverable and clearly understandable law. This broad principle has constitutional effect in such doctrines as the bar on “ex post facto” laws and the “void for vagueness” principle. Bower’s argues persuasively that the probable cause doctrine in the Fourth Amendment is another radiation of this idea, here applied to what Michel Foucault would have called the “capillary level,” regulating when the police may interfere with a person.

Yet probable cause, and Atwater, are revealing as to why the legality principle, which for so long seemed a way to make criminal justice more fair and reasonable, has ceased to play this role in the age of mass incarceration. For a long time legality was loosely coupled to progress in reducing the arbitrariness and cruelty of criminal justice. By tying this civilizing process of criminal law to the centralized state and especially its law making power, legality harnessed the power of both democratization and professionalization. As states became more democratic and increased the suffrage and thus the political voice of previously marginalized citizens, criminal laws became less of a crude cudgel of class power and more of an individualized inquiry into guilt. As the exercise of police and penal power came to be tied to professional bureaucracies, the ability to reliably enforce legal values was improved. Neither process was flawless, but as we compare justice in the 1850s to the 1950s, the regression line of respect for human rights is at least modestly correlated upward with both the processes.

But the era of mass incarceration has reversed that. As “tough on crime” became a politically populist message, the historic restraint of democracy on criminal justice has turned into an escalating factor. As the resulting value of “governing through crime” has raised the political influence of prosecutors, and police, lawmakers have generated hundreds of criminal laws designed to increase the reach and scope of law enforcement. Professionalism and modernization of criminal justice agencies has generated its own bureaucratic demand for harsh justice. But if police can use scores of low level possession and simple conduct crimes (like not wearing a seat belt) to pick and choose who to arrest (and then search based on the authority of that arrest), legality becomes a black box surrounding whole groups of individuals and communities that police can act on with virtually no restraint.

Bowers sees dignity joining not replacing the legality principle. Fourth Amendment searches and seizures would require probable cause (the legality principle) and something more: a general reasonableness test in which the dignitary cost to the individual of police action would be part of the equation. As Bowers shows, this kind of general reasonableness has long been part of the Court’s Fourth Amendment jurisprudence, but limited to the areas bracketed off from criminal justice — the so called “special needs” category like school searches, civil warrants, and police stops to address “suspicious” behavior that does not arise to probable cause of crime.

For many observers dignity is just too broad and plastic a concept to place judicial authority on. Of course all of the great values in the Constitution — liberty, equality, and due process are broad. Bowers focuses (as does Atwater) on what should be a fairly uncontroversial core of a right to have government respect human dignity, and not subject its citizens to “gratuitous humiliation.” Humiliation, say being stripped naked, or subjected to unwanted probing in intimate places, subjects a person to a sense of being lower than human status, a subject of contempt to be toyed with. Even if such conduct does no direct physical harm, it denies that the subjectivity of the victim matters. This captures an aspect of the modern concept of dignity that both James Whitman and Jeremy Waldron have pointed to, that is that modern dignity retains a link to the hierarchical and aristocratic conception of dignity which originates in the Greco-Roman culture and survived in various ways in Europe until the 20th century. The modern human rights concept of dignity levels up ordinary citizenship to the dignitary rights of the old aristocracy. The modern citizen does not have the power or assets that sometimes came with aristocracy, but they retain the right to be treated as if their subjective experience matters. As Bowers shows, this concern is not altogether missing in our constitutional jurisprudence, just strangely under developed.

Of course contact with government agents can seem humiliating (like semi undressing in the TSA line), but it is not as humiliating (and therefore not incompatible with dignity) when the purposes for compliance with demands are transparent and reasonable. Not many cases will present as clearly gratuitous as the arrest of Atwater. Police will often have reasons that more closely align with judicial understandings of reasonableness. This is especially true when the suspects are young, black and male (rather than white, female, and a mother, as was Atwater). However, Bowers is right to encourage lawyers to dig into the micro-justifications (and micro-degradations) that are endemic in the policing of minority communities and that have received widespread recognition since Ferguson.

Cite as: Jonathan Simon, Dignity, too, JOTWELL (December 2, 2014) (reviewing Josh Bowers, Probable Cause, Constitutional Reasonableness, and the Unrecognized Point of a “Pointless Indignity”, 66 Stan. L. Rev. 987 (2013)),


Issa Kohler-Hausmann, Managerial Justice and Mass Misdemeanors, 66 Stan. L. Rev. (Forthcoming 2014), Available at SSRN.

Most people, both lay and expert, would not quibble with the claim that American criminal justice is primarily adjudicative in nature. Specifically, the criminal justice system is concerned with separating the factually innocent from the guilty (erring procedurally on the side of innocence) and meting out punishment to the guilty. Thus, prosecutors dismiss weak cases and pursue charges only when guilt can be established. The guilty either plead or are convicted after trial, and a conviction is the primary basis for adverse consequences, such as jail and probation. Most would also acknowledge that the adjudicative function sometimes goes off the rails, for example, when aggressive plea bargaining or poorly structured sentencing guidelines coerce innocent people to plead guilty or when excessive pretrial detention attaches to a minor charge. However, often people think of such occurrences as deviations from or perversions of a system that in principal differentiates between the innocent and guilty and punishes the guilty. It might come as a surprise then to find out that in New York City, a very large percentage of criminal cases are resolved completely irrespective of defendants’ guilt or innocence.

Conducting a multi-year ethnography of New York City misdemeanor court, Professor Issa Kohler-Hausmann observed, day after day, prosecutors dismiss cases with ample evidence of the defendant’s guilt and insist on guilty pleas in the face of questionable facts. Contrary to existing descriptions of misdemeanor courts as conviction mills that fail to differentiate between types of misdemeanants or assembly-lines that produce quick but schizophrenic dispositions, Kohler-Hausmann discovered that NYC misdemeanor courts engage in meticulous categorizations of defendants and apply dispositions (continuance and then dismissal (ACD), conviction for a violation, misdemeanor conviction) to the differentiated categories of defendants in predictable manners. However, the categories of defendants are not determined along a spectrum of factual guilt. Accordingly, it is not necessarily the case that the defendants against whom there is weak evidence receive ACDs and those against whom there is ample evidence are convicted of the highest charge. Instead, the NYC misdemeanor system sorts defendants and graduates outcomes on the basis of defendants’ prior contacts with the system. Kohler-Hausmann’s quantitative analysis demonstrates that prior misdemeanor convictions are highly predictive of future misdemeanor convictions, and the probability of being convicted on a pending misdemeanor charge significantly increases with every past misdemeanor conviction. By contrast, prior felony convictions do not correlate significantly with conviction on pending felony charges (although they most certainly affect sentencing once there is a conviction). In short, the more times an individual spends in the misdemeanor court system, the more likely it is that she will be convicted, regardless of the evidentiary strength of the case. In fact, through a series of stunning vignettes, Kohler-Hausmann illustrates just how adverse prosecutors, judges, and even some defense attorneys are to introducing questions of factual innocence into the misdemeanor disposition process.

Kohler-Hausmann also observed that the entire misdemeanor process has little to do with what we commonly think of as criminal punishment, namely, probation supervision or incarceration. Rather adverse consequences come primarily in the form of generating an extensive criminal record, forced presence at court and various administrative and therapeutic service offices, and collateral consequences like job loss. Consequently, the emergent picture of NYC misdemeanor court is a dystopian vision of defendants, primarily economically disadvantaged black and brown men, being sorted, categorized, and marked as minor, moderate, or frequent rule-breakers for ease of management by the state. Indeed this managerial system is a system of serious discipline and social control, just not the type of discipline and control one typically associates with criminal justice. Prosecutors are less “conviction maximizers” as risk managers who engage in various forms of arbitrage and seek to make sure that misdemeanor dispositions reflect, and more importantly, document the defendant’s risk of misdemeanor reoffending.

So why is this vision dystopian? Would it be better if the misdemeanor system were more attuned to procedure, culpability, and punishment? Not necessarily, says Kohler-Hausmann. Adding a layer of criminal procedure would likely add administrative and temporal costs to be borne by defendants. Being concerned with punishment would likely increase incarceration for these otherwise “disposable” minor offenses. The problem is not so much that the system lacks appropriate regard for factual innocence, as the system’s purported benefits (reducing risk) appear to be outweighed by various costs. First, because the system of marking is based on contacts and not on guilt, those marked as serious risks may simply be those who have been swept into system early or those frequently targeted by police. Moreover, recent stop-and-frisk litigation has amply shown that police contact is more a function of the racial and socio-economic character of a neighborhood and its citizens than evidence of serious criminal threat. The picture of poor black men being herded, sorted, marked, and monitored by white government actors should be distasteful to anyone with racial justice sensibilities.

The question then is what can be done. Kohler-Hausman intimates that the problem of misdemeanor management is quite intractable, concluding that a solution “will not be secured merely through new criminal rules and procedure” but “demands a broad movement of social and political dimensions.” Recently, NYC has seen some political will to reimagine a portion of its misdemeanor practice. Last October, New York State’s highest judge, Chief Judge Jonathan Lippman rolled out the “Human Trafficking Intervention Court” to much public fanfare. The court is essentially an alternative diversion court for prostitution cases, and it has promised to treat this category of misdemeanor defendants as true victims and completely eschew any punitive or even criminal model. Will this court change things or will it just be another mechanism for sorting, categorizing, and marking the mostly poor women of color charged with prostitution offenses? My co-authors, Ohio State professor Amy Cohen and Kate Mogulescu, director of NYC legal aid’s trafficking victim’s advocacy project, and I hope to answer this and other questions about the trafficking court in our current research project. In any case, Managerial Justice and Mass Misdemeanors really is socio-legal scholarship at its best. It is ambitious in its aims, meticulous in its methodology and creative and thoughtful in its analysis. It should be essential reading to anyone who seeks a deep understanding of the operation of the current American criminal justice system.

Cite as: Aya Gruber, Marked!, JOTWELL (November 3, 2014) (reviewing Issa Kohler-Hausmann, Managerial Justice and Mass Misdemeanors, 66 Stan. L. Rev. (Forthcoming 2014), Available at SSRN),

Influential But Uninformed: What Scotus Knows About Policing

Seth W. Stoughton, Policing Facts, 88 Tulane L. Rev. 847 (2014).

Sift through any number of Fourth Amendment decisions from the Supreme Court, and you will find many general observations about the police: that theirs is a dangerous profession, or that they possess a specialized instinct for spotting criminal behavior. Typically, such statements are made without citation to any source. How do the Justices know these facts? And are such statements accurate?

That is the central issue in the insightful article Policing Facts, written by Seth Stoughton (himself a former police officer turned law professor): what should we think of general observations about police that are made by the Court? While we expect Supreme Court decisions to discuss the facts that arise out of a particular case, it is also true that in resolving the issues the Justices will often make some assertion about policing in general: such as the working environment of the police, police practices, or police psychology. (Indeed, as Stoughton notes, the Court is quite willing to make general observations about nearly every aspect of policing.) While some of these “legislative facts” are supported by citations, more typically they aren’t. (P. 857.) These policing facts appear seemingly from nowhere. What’s wrong with inserting unsupported statements about the police into opinions? As Stoughton argues, policing facts are “simply wrong almost all of the time.” (P. 868.)

The Court’s regular use of unsupported policing facts will not surprise many, but hardly anyone has noticed its importance before. Of course, a mainstay of criminal procedure scholarship is the critique of the Supreme Court’s decisions for their normative undesirability or their doctrinal confusion. But what if the Court gets the basic factual premises wrong?

Mistaken factual premises can distort the kinds of questions posed by the Court as well as the doctrinal solutions it develops to address them. Further, a Court decision based on that mistaken view can lead to problematic rules for the police: intervention that is too heavy-handed or ineffectual. Finally, a policing fact of the type described by Stoughton takes on an implicit precedential value of its own. For example, the Court’s description of the use of force by police in Graham v. Connor–which Stoughton picks apart as grossly inaccurate–has itself been quoted more than 2,300 times in subsequent lower court opinions. (P. 887.)

Some policing “facts,” as Stoughton demonstrates, are just plain wrong. Take the exclusionary rule’s modern rationale: police deterrence. While many have criticized the rule’s development and application, Stoughton takes to task the basic factual premise: do the police care about “good” convictions? The simple answer is no. In the vast majority of cases, nothing about the patrol officer’s workaday world hinges on the ultimate conviction of the person they arrest. Convictions carry no weight in an officer’s professional evaluations. Indeed, it may be nearly impossible for the arresting officer ever to find out what actually happened in any one case, given the limited interactions between the bureaucracies of police and prosecutorial administration. Moreover, the informal advice a rookie officer is likely to receive is to deaden herself to the ultimate disposition of the arrestee. Doing otherwise leads to unnecessary professional stress. Thus, police deterrence, while perhaps conceptually appealing, doesn’t square with reality.

Stoughton proposes a number of possible solutions to improve policing facts. The Court could rely upon existing procedural mechanisms like requesting additional briefing from the parties or further oral argument. More ambitiously, Stoughton proposes the possibility of formally acknowledging the independent fact-finding the Court already engages in as an informal matter. For instance, the Court could call on amici to brief specific factual issues. Most simply, the Court might regulate itself so that legislative facts appear in opinions only when empirically supported. (It’s been done before: the Miranda v. Arizona majority opinion cites more than “six police training manuals; three texts about policing; eight academic articles, three news articles, [and] reports by the Wickersham Commission, the Commission on Civil Rights, and the [ACLU].” (P. 855.))

It would be strange if the Supreme Court asserted unsupported “facts” about genetics or economics in its opinions; so why does it do so about the police? Many Americans feel some familiarity with the realities of law enforcement because of its pervasive presence in fictionalized media and the news, even if those depictions are mistaken. Learning criminal procedure from Law and Order might be inadvisable, but it’s not dangerous. Yet, as Stoughton points out in his thoughtful article, when the Court gets the police wrong, that misunderstanding threatens our basic liberties.

Cite as: Elizabeth Joh, Influential But Uninformed: What Scotus Knows About Policing, JOTWELL (October 1, 2014) (reviewing Seth W. Stoughton, Policing Facts, 88 Tulane L. Rev. 847 (2014)),