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About ten years ago, I was teaching substantive criminal law, and I had a mini-revelation. When it comes to mass incarceration, I was part of the problem. Literally hundreds of lawyers had passed through my criminal law class by then. Some of them were prosecutors, and they were (and are) participating in the project of mass incarceration, adding bodies to the prisons and jails of this country, one person at a time. They are generally smart, decent and thoughtful people, trying to do justice in the context of particular cases in front of them, but they are doing so within a system that is not actually designed to deliver just outcomes. In so doing, they are helping to perpetuate that system. Reflecting on my own role, I had the distinct sense that I had not done enough to provide them with the critical tools they would need to understand and grapple with the realities of their jobs. I was perpetuating that system, too.
Since that time, I have engaged in a painstaking, incremental process of redesigning my substantive criminal law class. The process is still ongoing. Alice Ristroph’s article The Curriculum of the Carceral State, which is both an intellectual history and a practical guide, offers important guidance for me, and for others engaged in this reconstruction process.
Ristroph argues that the legal academy has played an important role in constructing mass incarceration. Her article starts with a history of the substantive criminal law class taught in most law schools today. Here she draws from her own recent article An Intellectual History of Mass Incarceration. She shows how the development of the criminal law course was driven by the desire of Roscoe Pound, and others, to place the teaching of criminal law on the same footing as their more respected common law counterparts.
Scholars like Jerome Michael, Herbert Weschler, Stanley Kadish and Monrad Paulson eventually built a field around the concepts that “crime” involves a category of particularly injurious behavior, which justifies exceptionally harsh sanctions meted out through a system with distinctive procedural protections. In the resulting account, “criminal law is disciplined by internal constraints, logically structured, and necessary to societal well-being—a field of law worthy of academic and professional respect.” Many of the notions hammered out in the first criminal law casebooks were distilled into the Model Penal Code. Ensuing criminal law classes taught the idealized, rationalized version of the criminal law embodied in the casebooks and the MPC as if they were fact, not aspiration. Among other things, the approach these early criminal law scholars designed ignored the role of racism and inequality in structuring the U.S. criminal legal systems.
The disconnect between the realities of the punitive system and the idealized criminal law taught in law schools ever since has had a number of negative consequences. Ristroph assesses the content of contemporary criminal law classes and identifies “several subtly pro-carceral messages that inculcate a view of criminal law as morally and practically necessary, fair and color-blind, and disciplined by internal limiting principles.” Among other things, Ristroph suggests that the legality principle and the presumption of innocence – which provide a foundational framework for modern criminal law casebooks – are virtually inoperative in real life, and that this was the case even at the inception of the Michael and Wechsler casebook that served as the intellectual godfather of contemporary criminal law textbooks. Ristroph also faults the foundational textbooks’ presentation of punishment theory, which “focuses more on reasons to punish than reasons not to.” In the same vein, she criticizes the use of homicide as the archetypal crime, which “reflects and seeks to propagate the [erroneous] view that criminal law’s primary function is to address deeply harmful acts, especially interpersonal violence.” And while a “homicide prosecution is subject to some real constraints, starting with the need to identify an actual victim[,] there is no similar constraint on prosecutions for disorderly conduct, vagrancy, loitering, or an array of other public order offenses,” which are all but ignored in the criminal law textbooks, though they form critical building blocks of mass incarceration. Ristroph also explores the ways that the standard textbooks “obscure  human agents,” and, in turn, the ways criminal law “operates as a tool of racial repression.”
After exploring the intellectual history of the criminal law class and analyzing the choices made, Ristroph speculates on the practical consequences of these choices. While she is cautious about drawing causal links, she notes the rise of mass incarceration after the development of the existing criminal law canon, and the prominent role of lawyers in the legal developments at the heart of mass incarceration. Throughout the article, she persuasively points out how the coverage and framing choices of criminal law casebooks could be fueling these professional pathologies. Ultimately, Ristroph argues that the standard criminal law casebooks train budding lawyers around a stylize and idealized criminal law that bears almost no relation to anything that is actually happening in criminal legal systems. Consequently, and despite the stated concerns of foundational criminal law scholars with the dangers of overcriminalization, the criminal law class they designed paved the proverbial “road to hell.”
In the final section, Ristroph offers what she calls a “prolegomena to any future criminal law canon.” She suggests that the teaching of criminal law remains important, given the role of the criminal law in structuring law and society. But she proposes a curriculum that highlights human agency (and fallibility), the role of social inequality in shaping the effects of the criminal law, and the changeability and inconsistencies of the substance and purposes of criminal law.
Ristroph’s intellectual account faults the founders of criminal law for their failure to substantively engage criminal law’s human – and discriminatory – dimension. To fully understand how the structural racism and excesses of our modern criminal legal systems have been simultaneously naturalized and obscured by the criminal law class, however, it is helpful to think beyond the criminal law casebook to the broader law school context in which criminal law classes are taught. Among other things, it is useful to reflect on the ways that law schools are policed, both literally and figurative: police officers and security guards monitor these spaces for racialized bodies out of place; admissions and hiring committees apply metrics of merit that are universally acknowledged to have disparate racial impacts that both reflect and compound the effects of societal structural racism.
The racial dynamics and material structures of U.S. law schools directly impact the way that scholars, both in front of the classroom and in it, think about race and the criminal law. Margaret Montoya captured this viscerally in her own critique of law school criminal law classes – the 1994 article Mascaras, Trenzas, y Greñas: Un/Masking the Self While Un/Braiding Latina Stories with Legal Discourse. There, Montoya narrates the ways that students experience the criminal law class, and surfaces some of the haunting ways that race is simultaneously made salient and erased in the law school classroom. Her account, written about her own law school experience in the 1970s, still feels familiar today.
The biases that entering law students have are exacerbated rather than mitigated by the substantive choices made in the law school classroom, as Ristroph beautifully illustrates. They are also reaffirmed by the social dynamics and material realities of law school. Alice Ristroph has provided us with a useful guide for beginning to assess where and how we have gone wrong. Now is a good time to apply this kind of critical lens more broadly, even as we embrace and deepen this critique.
The Supreme Court stresses that the tests governing the Fourth Amendment are objective ones, looking to what reasonable officers would do and eschewing examination of the actual officers’ subjective mental states. The Court has stated that this is because the law is not concerned with the officer’s “state of mind, but the objective effect of his actions.” In this characteristically incisive article, Professor Orin Kerr provides good reason to doubt the Court’s rhetoric. Kerr shows that the Court regularly looks to the subjective states of government officials in deciding the propriety of law enforcement conduct. Such subjective tests pepper the Fourth Amendment jurisprudence, regarding searches, seizures, their reasonableness, and their constitutional remedies.
That’s not always a bad thing, according to Kerr. Nor is it always a good thing. Subjective tests can help us create narrow, more tailored rules that serve law enforcement benefits and protect our civil liberties. But that’s highly dependent on their reliability; indeed, when we can’t accurately determine officials’ mental states, these tests are manipulable and can do serious harm. Figuring out when they work is a tough task, but Kerr provides us with useful guidance.
Kerr begins his analysis by defining what he means by doctrines that rely on “government subjectivity,” which he takes to be “any legal test, rule or standard that incorporates a government official’s actual state of mind.” Then Kerr dutifully takes us through a dizzying number and variety of Fourth Amendment cases where the Court’s analysis turns on government subjectivity. This part of the article might as well be a hornbook: government subjectivity pops up in all the major areas of Fourth Amendment law.
For example, regarding searches, in United States v. Jones, 565 U.S. 400 (2012) that dealt with a GPS tracking device attached to a car, the Court held that government conduct is only a search when it is “to obtain information.” So, Jones requires judges to look at what law enforcement was actually aiming to do. On seizures, Brower v. County of Inyo, 489 U.S. 593 (1989), which considered whether a driver fleeing police who fatally crashed into a police roadblock, held that the driver was seized because the police intended to stop the driver and implemented means to that end. And concerning remedies, Herring v. United States, 555 U.S. 135 (2009) held that only “deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence” triggers the exclusionary rule. Indeed, here’s another from me: United States v. Brignoni-Ponce, 422 U.S. 873 (1975), held that it is a violation for an officer to stop a vehicle solely on the basis of appearance of being of a particular ethnicity (Mexican descent, in that case). In so doing, the Court focused on what the officers in fact considered in stopping the vehicle, and its test was formulated in terms of actual reasons. Furthermore, the Court emphasized that the officers’ reasons were to be viewed through their perspective, including their training and experience. Thus, the Court injected subjectivity into the inquiry, by looking at officers’ subjective beliefs and perceptions.
Yet the existing scholarship has failed to recognize the ubiquity of subjective tests. Much of the debate, Kerr observes, has assumed that objective rules define the Fourth Amendment and focused on the Court’s insistence that these objective tests are preferable because they are evenhanded and promote uniformity. Critics have cast doubt on that, arguing that it allows for pretextual law enforcement conduct that is, in reality, often racially discriminatory. Kerr acknowledges the importance of this debate, but thinks the question of subjectivity has an even broader reach.
According to Kerr, Fourth Amendment law can be conceptualized as a way to “internalize the civil liberties harms of government investigations.” Specifically, Fourth Amendment law prohibits certain kinds of government conduct when the civil liberties harms outweigh the law enforcement benefits. Kerr then explains how this task generates “the scope problem”: In deciding cases, judges must decide the level of generality with which they characterize the facts of a case and formulate the rule that decides the case. Very particularized characterizations and rules are good for the individual cases, but they may not provide the requisite ex ante clarity we desire. The facts and rules can be characterized with potentially infinite degrees of specificity. To this end, Kerr provides us with the following Figure 1 (Since first drafting of this jot, Kerr replaced this version of Figure 1 with a more elegant one, but I like the original):
The dot represents the particular case and the near-ovals are varying ways to characterize the facts and consequent rules of the case. Figure 1 reminds us that no matter how high tech the world is, Fourth Amendment law has answers that are intuitive and can be understood with a pad and pen (and no compass). Kerr’s framing draws on a deep philosophical point: There is no ideal way of characterizing a case. The way we do it must be analyzed in terms of our ends, or in Kerr’s terms, our costs and benefits. The point then is using subjective mental states may help us to create narrow rules that better balance costs and benefits.
Consider the example of an officer who pulls someone over for a broken taillight, but the subjective reason is that the officer suspects the driver is a murderer. There are multiple ways to describe this action, ranging from “pulling someone over for a traffic violation” to “pulling someone over under the pretext of a traffic violation” to a very specific description detailing the conduct, the pretextual justification, and the actual reason of investigating murder. The objective formulations may be coarse and improperly tailored. But if we can determine subjective states accurately, more fine-grained formulations appealing to subjective states may be able to better balance civil liberties and investigatory benefit. Here’s the rub: if we can’t determine subjective states accurately, suppression of evidence may happen more frequently, resulting in “less usable evidence and less public benefit of enforcement of the law.”
Kerr then goes through an assessment of subjective tests in various Fourth Amendment contexts. Very briefly, he thinks they are useful and beneficial in assessing searches, seizures, special needs, and parole limitations. He thinks they are problematic in assessing pretextual stops and the appropriate remedy for constitutional violations. The devil is in the details, but Kerr’s analysis is nuanced and insightful. I see this article as a beginning, with many richly interesting questions demanding to be explored.
First, can Kerr’s “government subjectivity” be further refined? What if we understand subjective tests as ones that look to direct evidence of a government official’s actual state of mind, like testimony or evidence of actual behavior? That is, courts may be willing to look at facts about officer actions to make determinations about likely motivations. But they won’t just ask officers of their motivations. Kerr’s examples suggest that the Supreme Court favors tests that reach to subjective mental states, but based on “objective,” verifiable information. For example, in Jones, the Court determined that the government was seeking to obtain information based on the fact that agents attached a GPS device to a car and monitored it. This allowed the Court to infer the government’s actual, subjective purpose—but based on objectively verifiable facts, rather than officer testimony as to their motivations. Second, in evaluating when subjective tests work in various Fourth Amendment contexts, Kerr focuses on features of the contexts: searches and seizures versus pretext and remedies. But what if we focus on the subjective states themselves? It may be that some subjective states are more accessible than others. For example, it might be that when looking at officer conduct, we are able to readily decipher the subjective aim of particular conduct. Again, in Jones, it’s easy to infer that law enforcement wanted to obtain information. And in Brower, it’s similarly pellucid that officers wanted to stop the driver. But it may be harder to determine why law enforcement engaged in the conduct—was it to investigate a promising lead or to fish for potential leads or to harass? And it may be still harder to determine if officers were motivated by animus or bigotry.
Third, how does recognizing Fourth Amendment subjectivity impact the traditional debate about officer motivations and the potentiality for illicit discrimination? As Kerr recognizes, his discussion here is broadly theoretical, and leaves open the important questions about racial discrimination. But bringing those questions back into focus, does recognizing subjectivity in Fourth Amendment decisions mean that courts should probe potential discrimination by law enforcement—both individualized and systemic? Often, such conduct is ignored precisely because of the objective frame that looks to what reasonable officers might have done. Moreover, when subjectivity is marshaled, it is often to immunize law enforcement conduct as good faith mistakes (like in United States v. Leon).
Finally, what would a genuinely objective Fourth Amendment law look like (and can an amendment that is explicitly rooted in reasonableness ever be objective)? Would it focus only the impacts of investigation on the targets? What would that do to the balance of investigatory interests and civil liberties?
This article brings great clarity to the Court’s sometimes maddening Fourth Amendment jurisprudence. Kerr recognizes that the Court’s mantra of “objectivity” is chanted but not followed. The meaning of the Fourth Amendment is up for debate, and its judicial application due for reform. This article is essential reading as we chart that course.
Garrett Felber’s book, Those Who Know Don’t Say, offers a fresh and fearless new intellectual and activist history of the Nation of Islam (NOI), which situates a critique of the carceral state as central to the Black Freedom movement. Felber is a historian, who has become a recent cause celebre among academics for his firing by the University of Mississippi as retaliation for calling out the school’s allegiances to racist donors over public service. His firing has been a buckshot warning that academic freedom and free speech are not as free as we might think. In response, over 5,000 scholars and professors signed on to an “open letter” to his school demanding he be reinstated.
While Felber might be viewed as terminable by his home institution, his research is anything but, and instead, opens up academic study in new and exciting directions. Grounded in excavations of archival sources, court documents, and religious records, he offers meticulous, high-caliber scholarship that revises a portion of civil rights history and the NOI’s place in that history. The author shows that Muslims in America have been subject to surveillance and Islamophobia for decades. This, in turn, has helped fuel the Muslim community’s decisively antagonistic view of the prison system.
The book is styled as a vehicle through which to explore forgotten sites and forms of Black struggle confronting the carceral state. Its central claim is that challenges to policing and prisons were central to the postwar Black Freedom movement—and that the NOI was the at the forefront of these struggles. The carceral state, in turn, expanded through what the author calls a “dialect of discipline,” a phrase that intends to describe the relationship between disciplined Black dissidence and state penal discipline. To combat Black protest, the state responded with new, carceral modes of surveillance, punishment, and ideological knowledge production.
Accordingly, these developments laid the groundwork for the modern carceral state and the movements that oppose it. The dialectics played out in multiple arenas of Black protest, including prisons, courtrooms, and in the street. These collective efforts elicited harsh responses by police, prison guards, and other agents of the state. The tension between resistance and surveillance thus came to define the relationship between Black resistance, often led by NOI leadership, and state authorities.
Felber details how the NOI often had to struggle along two different lines. In addition to confronting police and prisons, the NOI also contended with Black leaders who saw the group as violent and pro-segregation. As such, the NOI often had to defend its civil rights struggles not simply against the carceral state, but also against other Black leaders who saw the NOI’s agenda as an obstacle to their own, especially their efforts to end segregation. Malcolm X was once called the most dangerous man in America, but he was not feared by whites alone.
What emerges from these struggles is the NOI as the most active and vociferous antagonist of the carceral state. Indeed, the litigation efforts alone reveal an organization dedicated to appropriating courts to challenge state oppression. In many ways, litigation by Muslims in prison advanced the status of prisoners in a way that paralleled civil rights struggles on the outside. This legacy of incarcerated Muslims taking their protest to court has impacted prison law and policy so profoundly that any discussion of prisoners’ rights in America would be incomplete without recognizing the contributions made by NOI followers.
One individual highlighted in the text is Martin Sostre, a convert to the NOI, who embodies practically all aspects of the dialectics of discipline thesis. Sostre became active in prison and worked to advance the rights of Muslims and other prisoners. His efforts earned him extra punishment in solitary confinement, but his mistreatment only fueled his determination. He would study law in prison and go on to become one of the fiercest jailhouse lawyers the country has ever known, garnering federal court victories, including rulings that curbed the use of solitary confinement and allowed Muslims greater religious freedoms. He also drafted legal templates that were used by others in prison for their own lawsuits. When released from prison, Sostre opened a revolution-themed bookstore that extended his resistance into the streets. Reinforcing the dialectic, the police would later raid the bookstore and Sostre would ultimately be returned to prison.
As such profiles suggest, there is a long-lost history that this book brings to life. It is must-read material for students of African-American history, criminal justice, Islam in America, and scholars of social movements that tells a sordid story that links to current protests led by the Black Lives Matter movement. Through its pages we learn that the carceral state did not expand without cause, but instead, the expansion was part of the reactionary measures to control Black protest. In outlining Black resistance in America and the growth of the American penal system, Felber has uncovered a definitive political and intellectual history of the NOI and its relationship to the broader civil rights movement.
The publication I would like to discuss in this Jot is a chapter in a book that is, in its entirety, a great and important read for those interested in the field of (critical) criminology and criminal justice. The 2020 edited collection “Contemporary Criminological Issues” provides its readers with an interesting set of chapters that challenge current critical criminological theoretical perspectives, themes and methods.
In the opening chapter, Mofette and Pratt introduce a new way to look at the intersection of criminal justice with immigration. According to the authors, this process is by no means fully captured – or understood – by applying the increasingly popular conceptual lens of ‘crimmigration’. The authors claim that the crimmigration lens tends to unjustly focus on finding evidence for the notion of the convergence – or merger – of criminal law and immigration law. As a result, the heterogeneity, contingency, and multiplicity of ordering and bordering practices, including the important ways that jurisdiction brackets and authorizes different legal powers and practices, remains hidden. This leads to false – and oversimplified – claims concerning the mechanisms driving the intersection of criminal justice with immigration. It also pushes into the background many other legal and quasi-legal regimes that are engaged in bordering practices and that contribute to the regulation and punishment of immigrants.
The authors therefore introduce a new concept that, they argue, allows us to better understand and unravel the intersection: the legal borderlands of the domains of immigration and criminal justice. These borderlands are sites of ‘interlegality filled with nonsynchronic, unequal, and unstable interplays between various laws, techniques, and normative regimes’ (Mofette 2018, 156). Research into these legal borderlands is situated at the crossroads of different legal and quasi-legal regimes, scales and jurisdictions, and is careful not to reify any of them, while also being attentive to the interlegal and multi-scalar jurisdictional games at play in governance.
In developing their alternative theoretical frame, the authors borrow the notion of jurisdicational games from Marianne Valverde (2009). By linking jurisdictional games to the concept of the legal borderlands to assess developments tackled by others under the rubric of ‘crimmigration,’ the chapter offers a refreshing and important contribution to the scholarship addressing the governance of crime and migration. The authors invite scholars to reflect on two themes that are obscured in some of the crimmigration literature. First, they stress the coexistence of multiple legal and quasi-legal regimes and actors that operate at different scales (local, national, global, private, public) in the same spaces and the challenges and opportunities this creates for those who are governing migration as well as for those who are governed. Second, they emphasize the fact that each of the actors involved in the governance of migration are (un)consciously claiming, negotiating and enacting their (perception of their) jurisdiction through their practices.
Whereas legal scholars might see the concept of jurisdiction – and therewith also the notion of jurisdictional games – as a technical legal construct and practice, Mofette and Pratt clearly use a much wider, a more social-scientific, definition of the concept by stating that jurisdiction is to be seen as a performance that can only be fully understood by observing and analyzing discourse and practice. Anyone who summons the law can, in so doing, make claims about the “where”, the “who”, the “what”, the “when”, and the “how” of the law and therewith provide rationales for why an act or a person, in a particular place and time, falls under the authority of a particular body and, accordingly, to which kind of procedure they should be treated. This is exactly how the notion of jurisdictional games can help to further flesh out the complexity of what is going on in those cases when criminal justice and immigration seem to intersect. By focusing on the negotiations that are happening as part of this ‘game’ – negotiations over what belongs to immigration law, criminal law, or other legal regimes, negotiations over what falls under municipal, provincial or federal authority – the concept helps to better understand the dynamics and struggles lying behind what, on the outside, might merely look as an easy ‘conflation’ of two legal regimes.
The authors illustrate their conceptual framework with two examples from their own work. The vignettes they discuss show how municipal bylaws or immigration law may be more central to some strategies of legal regulation, how actors such as port authorities or custom officers also need to be considered and how state sovereignty is a concept much less obvious than it appears. In other words, they illustrate the interconnectedness of local, organizational and national regulatory frameworks in making sense of bordering practices. In choosing these examples – Pratt and Templeman’s work on the Canada-US maritime borderlands and Mofettes work on urban policing of immigrant street vendors in Barcelona – the authors also want to highlight that ‘legal borderlands’ are not to be understood only as the classical geographical borderlands between two countries or states. The ‘urban’ can be as much of a borderland as it is a site that is crisscrossed by dynamics that unfold at local, national, regional and global scales where governance is profoundly interlegal and, at times, transnational.
The lens provided by Pratt and Mofette offers an alternative and more dynamic way to look at the intersection of criminal justice and immigration. This framework seems more naturally to allow for attention to be paid to the ways in which formal and informal laws play out in the everyday lives the various players in the game of ‘crimmigration control.’ It also helps to avoid the pitfalls of methodological nationalism without denying the importance or the complexity of state power and violence.
Cite as: Maartje van der Woude, Criticizing Crimmigration
(March 23, 2021) (reviewing David Mofette & Anna Pratt, Beyond Criminal Law and Methodological Nationalism: Borderlands, Jurisdictional Games and Legal Intersections
, in Contemporary Criminological Issues: Moving Beyond Insecurity and Exclusion
15 (Carolyn Côté-Lussier, David Moffette & Justin Piché eds. 2020)), https://crim.jotwell.com/criticizing-crimmigration/
When I was a public defender in Baltimore, I often observed a chasm between my Black clients’ and neighbors’ experiences with police and White perceptions of policing. Baltimore is infamous for its longstanding racial segregation—spatial, cultural and political. As a result, the everyday realities of policing in Black neighborhoods were largely invisible to White Baltimoreans (including judges, prosecutors and jurors) which fostered a kind of White blindness, sometimes genuine but often willful and disrespectful. That, among other things, permitted egregious forms of police corruption to persist, since accurate Black reports of police misconduct were commonly dismissed as implausible or wildly exaggerated.
I was reminded of this lesson by the wave of horrified White reactions to the video of George Floyd’s murder and to other videos of police aggression against Black people. White blindness made these videos more surprising; Black Americans have been experiencing and reporting discriminatory police violence for decades. It crystallized for me how White blindness to Black experiences is a deep, enabling feature of our segregated criminal system. It also made me wonder, perhaps too hopefully, whether this new, terrible video evidence might be understood as performing a kind of informational anti-segregation work in criminal justice culture and politics. Monica Bell’s insightful article Anti-Segregation Policing is the starting point for anyone interested in such questions.
Bell argues that we have underestimated the connections between racial segregation and policing, that they are “mutually constitutive,” and that we can neither understand nor improve American policing without grappling with its modern segregationist role. At the same time, she offers ideas about how police could engage in anti-segregation practices that might ease police out of the business of creating and maintaining so many different kinds of racially subordinating boundaries.
Bell begins with a multifaceted account of segregation itself, which includes physical separation, concentration, subordination, and domination. Segregation is a complicated beast–part spatial, part economic and political, part psychological and cultural. Ultimately, as Bell quotes from Dr. King, “[s]egregation stands diametrically opposed to the principle of the sacredness of human personality. It debases personality.”
She then turns to policing and identifies six distinct mechanisms through which policing shapes residential experiences and redistributes social capital in racially segregated ways: “mass criminalization, patrolling borders, coordinating with other bureaucracies, constructing jurisdiction, constructing neighborhood reputations (as high-crime or as racist), and distributing racialized economic value.” As she notes, scholars including myself have written about various segregative features of the first mechanism–mass criminalization—which encompasses all the ways that police surveil, control, and impose criminalized burdens on people of color in specific neighborhoods. This includes things like broken windows policing, stop-and-frisk, low-level arrests for order maintenance and marijuana offenses, and intrusive policing of public housing and other low-income spaces. As Bell puts it, these mass policing practices affect not only their individual subjects but “contribute to segregation by restraining mobility out of racially isolated and high poverty neighborhoods and by characterizing neighborhoods on the basis of police practice and reputation.”
Bell also offers a kind of sociology of segregation policing. Through a series of interviews, she shares the voices of individuals who understand that they are not welcome in certain neighborhoods, or that some neighborhoods are not safe, or that other neighborhoods are high-value. These personal narratives are framed by sociological research analyzing how specific policing practices contribute to such segregated understandings.
Bell points out that “when police departments coordinate with other bureaucracies that manage access to housing and public space, their work can perpetuate residential segregation.” Here she builds on the work of scholars like Matthew Desmond and Priscilla Ocen to elucidate how police cooperation with housing authorities can enforce race-based exclusion. This dynamic, it should be noted, is part of the larger criminalization of the welfare state: we see similar “third-party policing” practices in public schools and in welfare administration which can also contribute to segregation. In addition, Bell zeroes in on the underappreciated way that the “police district” can function as a kind of carceral redlining. By drawing racially identifiable districts, police departments may designate “high-crime” areas characterized by intrusive policing practices, while treating wealthier, whiter areas as “service” districts in which police and residents mutually understand the police’s role as more responsive and protective.
Bell ends the article with some suggestions for how police could engage in anti-segregation policing. They range from fair housing reforms and structural litigation to less legalistic initiatives, such as strategic nonresponses to racially-motivated 911 calls. She also argues for a truth-and-reconciliation approach through which police would officially acknowledge and apologize for racist practices.
This article jumpstarts a much-needed interdisciplinary conversation about segregation and policing. The civil rights and criminal justice discourses share an enormous amount of intellectual and normative DNA, but it can be tricky to bring specific doctrines, theories, and histories into productive dialogue. With this piece, Monica Bell has performed some of the difficult heavy lifting needed to bring these discourses closer together. With so many new opportunities and understandings created by the Black Lives Matter movement, this important article comes at an especially fertile moment.
In a 2016 dissent, Justice Sonya Sotomayor described Americans becoming mere “subjects of a carceral state” as a result of repeated Supreme Court decisions broadening the power of the police to stop and to arrest people under the Fourth Amendment. In a powerful new empirical article, The Great Decoupling, Social scientist Vesla Weaver and coauthors have developed stunning empirical evidence of what it means exactly to be what they similarly call a “custodial citizen,” and who is likely to become one. In earlier work with Amy Lerman, Vesla Weaver defined the difference between being defined as a criminal offender by the state’s response to your “behavior” and simply being “‘defined by [your] relationship to the state;’ a relationship predicated more on who one is than what one has done.” In most criminal law and criminology work we presume that the institutions of justice are concerned with “criminal offenders” (a term I normally avoid myself) but Weaver and colleagues strongly suggest it is as “custodial citizens” that the police, and perhaps other justice agencies, look at young people, and especially young Black people.
The authors leverage a unique data source (the National Longitudinal Survey of Youth) that captures self-reported criminal behavior as well as criminal justice contact among advanced juveniles (generally considered by criminologists the most crime prone and most likely to be targeted by police) to examine a question shockingly understudied in both criminology and criminal law: what is the relationship between criminal behavior and criminal justice contact. With a few noteworthy exceptions (Elizabeth Hinton’s recent book being one), many, even critics of mass incarceration (like this one), have tended to assume that what varies in periods of punitive expansion (like the forty year long one that may have ended in the past decade) is the state’s response to criminal conduct (or at least suspect criminal conduct). Regardless of whether one supports aggressive enforcement and punishment policies, almost everyone assumes that there is at least a close relationship between crime and contact. Indeed, in a decently functioning justice system as the authors put it “contact should follow conduct” regardless of how aggressively so. But it turns out it ain’t so, and especially if you are Black. (Their data did not yield meaningful comparison of White-Latinx participants in the surveys.) Even more interestingly the authors leverage two waves of this study that capture similarly aged people in years that reflect the beginning (1979) and the peak of the great punitive turn of the late 20th century.
It turns out the world in 1979 kind of approximated the reasonable norm of contact following conduct. Only 18 percent of respondents who reported being arrested in 1979 reported no criminal activity. By 1997 that had grown to fully 70 percent. Your chances of getting arrested committing no crime in 1997 were higher than your chances of getting arrested while committing crimes in 1979.
Because of the detailed nature of the self-reported data, the authors are able to look at this relationship for varying levels of crime involvement and it holds up pretty much across the level of that involvement. In 1979 your odds of getting arrested only crossed .2 after three to four crimes. In 1997 they reached .2 at 0 and hit .4 at 1 crime. In 1979 that relationship increased at a nearly linear diagonal. To peak at about .8 after 9 or 10 crimes. In 1997 the curve flattened at above .08 after 5.
As Justice Sotomayor recognized, the reality of being defined as a subject to arrest regardless of your criminal behavior is far more common for people of color and in this study in particular, for Black people. Remarkably (and I’m not sure I believe it), the relationship between arrest odds and crime activity was virtually the same for Black and White participants in the survey in 1979. For example, in 1979 both Black and White participants who were at the midpoint of criminal activity both had a .25 chance of being arrested. By 1997 it had exploded to .8 for Black participants (and .6 for Whites). In short, young people of both races are dramatically more exposed to arrest in 1997 they were a generation earlier, but significantly more so for Black youth.
In this Jot, I cannot do justice to the careful efforts made by the authors to assess the statistical and substantive validity of their data, or their use of logistic regression to assess the relationship between race and generation in this relationship. The one inferential issue I would like to have seen discussed is how the crime decline of the 1990s might play into this great decoupling. Afterall, youth in 1997 were less likely to be involved in crime than at any time in the previous two decades including 1979 (which was near the top of the crime wave). Police in 1997 were possibly less likely to find a real crime going on behind their racial profiling based stop and arrest than in 1979 (in both periods they could use petty offenses to back up their arrest in any event).
The very important point of this article however is that the drop in criminal behavior across the country since the 1990s did little to protect youth, especially Black youth, from the disruptive and destructive effects of arrest because arrest is no longer closely tied to actual criminal conduct. The wave of policies we unleashed to increase punishment and police contacts in the 1980s and 1990s effectively decoupled crime and punishment. We have long recognized wrongful conviction of those imprisoned or facing the death penalty as a problem of enormous moral significance and not nearly rare enough (if rare overall). Here at the other end of the system, which is now beginning to be studied more intensively, this important research suggests that the punishment of the innocent is routine. Moreover, the remarkably high odds Black youth in 1997 faced of being arrested without having been involved in a crime strongly suggests that the conflation of crime with Blackness that began in the Eugenic era has actually increased in its grip on American criminal justice.
Samuel W. Buell, Retiring Corporate Retribution
, 83 Law & Contemp. Probs.
__ (forthcoming 2020), available at SSRN
Can corporations be blameworthy? Can they deserve punishment? If so, can we actually give them their just deserts?
Yes, yes, and no. At least, that’s what Samuel Buell says in this new article, where he contends that we should dispense with the notion of retribution when considering corporate punishment. Buell’s principal idea is that corporations cannot be retributively punished, since they cannot “be harmed or set back in ways that could satisfy” the retributive requirements of desert. His novel theoretical challenge to retributivism in corporate punishment compels us to rethink how the criminal justice system should interact with corporations.
Buell begins by defining retributive punishment as punishment that is “pursued in order to fulfill a moral imperative—that the wrongdoer must be punished.” Buell then surveys the different accounts of what constitutes such punishment—inter alia the experience of suffering, the “setting back” of well-being or interests, and the expression of condemnation. The common thread is that retributive punishment requires a subject with “experiential capacity.” (Foreshadowing: Corporations don’t have this.)
Buell next explains why prior challenges to corporate retributivism have failed. These arguments contended that corporations can’t be blameworthy because they aren’t people and don’t have minds. Buell provides good reason to think that argument is too quick. Even though corporations don’t themselves have minds, Buell argues that we can locate mens rea in corporate action. Corporate action involves collective human decisionmaking to which we can ascribe responsibility. Moreover, collective human decisionmaking is distinct from individual human decisionmaking—blaming a group for a decision is distinct from blaming each of the individuals for participating in the group decision. Thus, the corporation is an appropriate locus for responsibility and blame for collective human decisionmaking. The upshot then is that corporations can be blameworthy for their actions and thus they can deserve punishment.
But, according to Buell, here’s where the real problem arises: We cannot actually give corporations the punishment they deserve. This then is the sense in which it matters that corporations aren’t people and don’t have minds: They cannot experience pain or suffering, or anything for that matter. Now corporations can have their well-being or interests “set back.” But because corporations do not have experiential capacity, such putative punishment is not retributive in nature. It may produce good instrumental consequences, but it cannot give corporations their just deserts. Condemning corporations is similarly retributively empty, since corporations cannot understand or process such condemnation. People associated with the corporation might—but the corporation itself, the subject of the putative punishment, cannot. Buell puts it best when he writes, “From a retributive point of view, the problem is not that corporations are too big to jail but rather that they are too inhuman to feel.” Even if the public demands retribution from corporations and prosecutors comply, that is really just to advance the beneficial result of quelling public outrage—it’s not true retribution.
Buell then brings to bear the practical impact of these insights about retributivism and the corporate form. Buell notes that the Department of Justice first formalized the doctrine of corporate criminal liability in a 1999 memorandum signed by then-Deputy Attorney General Eric Holder (and now known as the Holder Memo). Though amended many times, the Holder Memo has firmly held to consequentialist principles of advancing welfare and balancing costs with benefits in corporate punishment, without explicitly directing the DOJ to pursue corporate retribution. But the DOJ’s handling of corporate crime, and in particular the use of deferred prosecution and nonprosecution agreements, has come under criticism. The criticisms take many forms but they often have a retributive tenor. Especially since the 2008 financial crisis, there is public frustration with the fact that corporations seemingly haven’t gotten the punishment they deserved. But on Buell’s analysis, there’s good reason for that and it isn’t because of DOJ policy. It’s because of the impossibility of corporate retribution. Indeed, even if the public is satiated with corporate admissions of guilt, the guilty pleas still won’t satisfy the demands of retribution. Consequently, Buell concludes that we should “retire corporate retribution.”
Apart from the merits, where Buell has set forth a compelling case, I think readers will find it hard to retire the topic because of the fascinating questions Buell has unearthed. Here are a few that come to mind:
First, similar to the way in which we locate mens rea and blameworthiness in the collective human action of the corporation, why can’t we also locate the experience of punishment in the collection of people that constitute the corporation? For example, suppose I band together with my friends to create a corporation, and we engage in blameworthy misdeeds. If our corporation is legally dismantled, then so too is our collective. Each of us, who are capable of feeling, are punished qua members of the collective: That part of our life and our identity has been dissolved, and ergo punished. Similarly, we might be condemned qua members of the collective, for which we can feel guilt or shame. Might these notions ground corporate retribution?
Second, embracing the conclusion, if the public is satiated by the purported retribution of corporate admissions of guilt, but those are not in fact retributively valid, what should we make of the merits of public retributive intuition in general? Should it make us any warier of the retributive demands of the public in criminal justice?
Third, does this illuminate something about retributive theory in the individual context? That is, because of their lack of experiential capacity, corporations cannot be given their “just deserts.” But people can also lack experiential capacity for punishment. Some might not have functioning minds, but others may lack the relevant capacity as well. Imagine a person growing up in extreme dysfunction and distress, due to being raised in abject poverty or an atmosphere of pervasive violence. Our forms of punishment—even our most extreme forms—may not have the right retributive impact on that person. Do our forms of punishment then also fail to be retributive regarding that person?
Fourth, what is, with specificity, the proper object of retributivist desert? Does investigating the locus of desert in the corporate form clarify what makes an individual blameworthy and deserving of punishment? Is the resulting desert object coherent and intuitively sound?
In sum, Buell’s piece is accessible, informative, and thought-provoking. He provides strong reason to rethink whether corporation retribution is worth pursuing, and his insights might give us reason to consider further whether retribution and the public’s understanding of it are indeed well-founded and sensible. I expect this piece to be a catalyst for many scholarly dialogues.
Stephen Rushin & Roger Michalski, Police Funding
, 72 Fla. L. Rev.
For eight minutes and forty-six seconds, Derek Chauvin pinned George Floyd’s neck to the ground outside of the Minneapolis Cup Foods on Chicago Avenue. Floyd’s shocking death, captured on a bystander’s cellphone video, led to criminal charges against Chauvin and the three other officers involved in the arrest. Floyd’s death also catalyzed thousands of protests around the United States and the world, and to the rallying cry of “defund the police.” These three words are memorable, but what do they mean? It depends whom you ask. For some, “defund the police” means reallocating some of the non-criminal duties that have become the responsibility of the police–think of outreach to the homeless and the mentally ill–to other non-police community service providers. For others, it is less a literal command and more a call to reimagine the objectives of street policing. And for some, it is indeed about police abolition.
But if we take these calls seriously and literally, they aim to reduce police department budgets as a method of reform. Unlike close analyses of the Fourth Amendment or legislative responses, police budgets usually escape the attention of legal scholarship. But in Police Funding, Stephen Rushin and Roger Michalski have presciently raised this issue as a topic of serious study. Police reform advocates calling for “defunding the police” should pay attention to the important observations the authors raise in their timely article. And one of the article’s central arguments is especially relevant after George Floyd’s death: that adequate funding should be seen as a prerequisite for accountable, democratic, and professional policing.
One commonplace among students of policing is that there is no single entity called “the police.” We live instead in a nation of more than 18,000 distinct law enforcement agencies. As a collection of departments, they are unified by a professional culture and bound by decisions of the United States Supreme Court, but the uniformity ends roughly there. American policing is local. Like public schools, American police departments rely most heavily on local sales and property taxes for funding, with some state and federal funding as well.
This means that the funding of American police departments, like schools, varies enormously. So much so, that, as the authors emphasize from their review of the data, there is massive inequality in police funding. For many Americans, the idea of the police may conjure up large urban departments in New York, Los Angeles, and Chicago, but these are hardly representative. What does this mean in practice? While some police officers have access to the latest technology, receive regular training, and are subjected to accountability mechanisms, others are not. The result? Funding differences mean that, depending on where you live, we may receive drastically different levels of police services. Some departments must hire part-time officers, can’t attract qualified entry level candidates, and can’t fire problem officers—all because of funding problems. These departments can hardly staff their departments, let alone address issues of excessive force and racial discrimination.
By mining several national datasets, Rushin and Michalski also provide crucial context to some of the central tenets of the defunding movement. Consider the claim that cities spend too much on policing as compared to other social services. Oakland, California spends about forty-one percent of its general fund on policing, compared to New York, which spends under ten percent on its police. But this comparison obscures the fact that New York collects far more tax revenue; Oakland far less. Both cities spend about the same amount of money per capita on policing services. Less overall revenue means cities suffer in all kinds of ways. Places like Flint, Michigan suffer tainted water, an understaffed police department, and soaring crime.
The nuanced perspective the authors provide in Police Funding means that taking “defunding the police” seriously as a policy proposal may backfire for cities that already struggle to fund adequate police services. No serious student of policing suggests that the police can simply be eliminated. If that is true, then accountability, transparency, and reform cost money (as well as require relentless scrutiny and review). A review of DOJ reports on troubled police departments pursuant to its authority under 42 U.S.C. § 14141 reveals a consistent theme: their recommendations for constitutional and democratic policing require increased financial investment.
And as Rushin and Michalski point out, reducing police funding in many departments around the country may result in worse, not better, policing. They hypothesize that reducing funding may exacerbate police misconduct. Can you think of a profession that has been improved by reducing costs for hiring, training, and oversight? Reducing the funding of the Robbins, Illinois police department may do little to address the problem of the part-time officer, paid 10 dollars an hour. who shot a 13 year old in the back. Instead, the authors propose a different framework altogether: think of policing as a problem of resource inequality. If policing is a public good, then states can take a lead by distributing police funds more equally, as well as require that some portion of these funds be reserved for training and accountability.
To be sure, Police Funding provides no direct solutions to the problems of excessive force, racial bias, overenforcement, and qualified immunity in American policing. The protests prompted by George Floyd’s death will require comprehensive, detailed reforms that demand the sustained attention of lawmakers. Yet the central premise of Rushin and Michalski is right: we should be skeptical of defunding the police—taken literally—as a serious policy proposal. Adequate police funding is a necessary condition for a path forward.
We are in the midst of a massive national protest, comprised itself of a wave of local protests, against the very institution of the police, or at least the widespread overuse of that institution to engage in actions beyond the crime-fighting competence that they claim for themselves. The distinction matters, because if the goal is not to abolish the police completely, but to defund and refocus their activities, some type of police reform is still necessary. Our attitude to the police, and our ideas about local and national means to control of the police, will profoundly shape what sort of reform we endorse. Rachel Moran’s recent article, Contesting Police Credibility, argues that law enforcement oversight requires robust institutional measures to challenge, resist, and hold accountable the police when they inflict harm upon the public.
Moran reveals that accountability is not transparency. Transparency might demand that the police are open and public about the wrongdoers in their midst, and disseminate records of police misconduct. Accountability requires an adequate process by which to hold the police answerable when departments or individual officers are called out for wrongdoing. Professor Moran’s focus is the lack of effective internal and external mechanisms of accountability. This lack of accountability, when combined with evidence of police wrongdoing, ought to subvert the presumption of reliability that the criminal process—judges, prosecutors, and juries—extend to the police as public officials. This presumption ensures that when the police are challenged on the streets or in the courthouse, the criminal justice process defers to the police as providing the only credible version of events.
As Professor Moran recognizes, demanding accountability from the police does not entail endorsing some carceral response to the problem of policing—her goal is not to send the police to jail. Instead, the point is to challenge the various presumptions of propriety that we extend to police conduct, and in particular, to challenge the presumption of police credibility and the idea that we ought to trust the police. Professor Moran’s article demonstrates why, in a political democracy, we ought never to trust the police, in the sense of just taking their word for it. A defining feature of any democracy is the institutions it provides to its citizens to challenge and contest government policy. Accountability ensures our government officials work for the public, rather than work over the public: invigilation prevents the easy turn to arguments from authority where police hide behind badge, rather than having to justify their actions.
The failure of accountability, whatever the issues with transparency, reveals a deep problem with the criminal process that is supposed to function as a site of democratic contestation. On at least one account of the criminal process, the courthouse is the central location for challenging the police to justify what they do. If you can’t contest policing in the courthouse, then the only place left is the streets.
The criminal process is supposed to be one of the ways in which the public can resist the state by challenging the state’s version of events. In practice, this means calling into question the police officer’s version of the facts on the ground. As the recent misdemeanor scholarship indicates, often the only evidence at the lowest level of the criminal justice system comes from police officers. Their word—and their relationship with the prosecutor—is determinative of the outcome. Higher up the penal pyramid, however, the criminal process obstructs criminal defendants’ ability to challenge or call out the police.
The structure of the criminal process is famously asymmetrical in several different ways. As the Court in Gideon v. Wainwright recognized, the state wields a great deal of power in prosecuting individuals. Whilst the Fifth and Sixth Amendments grant some rights to resist the police, by permitting non-cooperation through silence, and affirming the right to a lawyer, criminal trial, and to call and confront witnesses, these individualistic rights are often swamped by the structural features of pretrial detention, overworked defense counsel, and a variety of evidentiary rules that prevent defendants taking the stand to directly confront their accusers.
In the current battle for police accountability, trial practice may seem an odd place to emphasize reform. Defunding the police and prosecutors operates on the field of power, not of rights. Defunding directly undermines the structure of law enforcement, reducing its ability to reach into and disrupt the lives of civilians. Tinkering with the criminal process would seem to have much less of an impact.
Professor Moran’s article reveals, however, just how deeply compromised is the criminal trial structure in the partisan activity of supporting police misconduct. She identifies the ways in which the police resist the public by engaging in misconduct and resist oversight by “expressly discourage reporting of police misconduct, or refuse to record complaints when civilians attempt to file them.” Professor Moran—in this article and her work more generally—presents a picture of the police equivalent of civil disobedience. She reveals police disobedience is more widespread than is ordinarily acknowledged, in part because of official agencies elsewhere in the criminal process tolerate this type of workplace resistance.
In the spirit of the current Black Lives Matter and Blue Lives Matter confrontations on the streets, we could see these acts of discouraging of civilians from making or recording complaints as a form of ongoing, low-level protest against criticisms of the police. When the police engage in this sort of protest they are no longer acting on behalf of the government, but on behalf of their own partisan professional interests. Justice Jackson famously characterized the police as a partisan and oppositional institution engaged in an often competitive business that pits them against the public. Professor Moran’s analysis includes, as partisans for the police, the prosecutor and the courts who could otherwise hold them accountable.
The structure of the criminal process ensures the police evade accountability. Legislators refuse to enact criminal discovery granting defendants a right to depose police witnesses. The police routinely decline defense requests for pre-trial interviews. Prosecutors use Brady v. Maryland’s materiality standard to withhold exculpatory information from the defense, including information about police misconduct that could be used to impeach police witnesses. Courts balance police privacy considerations against the defendant’s right to exculpatory evidence. Judges, many of whom are former prosecutors, often impose high standards of discovery upon the defense bar. The sunk costs of the criminal process in maintaining the integrity of prior convictions entrench non-accountability deep into the criminal process. Even when the courts and prosecutors are aware that the police engage in misrepresentation at trial, they do not keep records of which police engage in those practices to preclude them from testifying at subsequent trials.
The police are a complex institution: however, when it comes to external accountability, law-enforcement has a remarkable ability to reject oversight in a variety of ways: from top down and from outside in. Prosecutors and judges—two institutions we should expect to regulate the police—consistently align themselves with the police. From this perspective, the distinction between transparency and accountability looks like the grassroots movement’s distinction between “reform reforms” that only legitimize the present system and “abolition reforms” that expose it to further criticism and pressure for change.
Characteristically, the street-level police see themselves as under attack from senior managerial officials, the public, the courts, or politicians. How they respond to this sort of regulation is a major issue in policing. Professor Moran’s article reveals that the standard street-police claim that they are under attack from all sides, including from officialdom, is a mirage. On the contrary, the criminal process is overwhelmingly oriented towards shielding the police from accountability.