Algorithmic risk assessments, offered as a means to improve decision-making by standardizing the prediction of an individual’s future behavior, present myriad challenges in criminal administration. The tools are inscrutable. The tools are discriminatory. What is to be done? One popular solution is public participation in the design and adoption of actuarial risk assessments. Though not a panacea, jurisdictions across the country – from New York City to Sacramento – are passing or considering laws that require public oversight in the adoption of actuarial risk assessments.
In her article, The Democratizing Potential of Algorithms?, forthcoming in the Connecticut Law Review, Ngozi Okidegbe challenges the assumption that these kinds of initiatives can resolve one of the most deep-seated critiques of pretrial algorithms – their racialized effect on marginalized people disproportionately subject to the carceral state. To the contrary, she argues that such efforts threaten to exacerbate the problem. Because her article questions the compatibility of the algorithmic project with racial justice in a novel way, it is a must read for scholars interested in criminal legal reforms.
While actuarial risk assessments are proliferating throughout criminal administration, particular enthusiasm and momentum exists to adopt these tools in the pretrial bail context. Here, the tools tend to predict the likelihood of an individual failing to appear for court or engaging in crime in the future based on statistical analyses of large datasets. This information ostensibly indicates for judges which defendants should be released before trial and which ones should be subject to more intense forms of state surveillance, whether in jail or not. As states and localities confront the shortcomings of cash bail practices, law and policymakers are shifting toward “pretrial algorithmic governance” by institutionalizing algorithmic risk assessments as a key part of the process.
Yet these tools have been plagued with critiques of their racialized effects, a point that Okidegbe unpacks as layered. She identifies three levels of exclusion specific to marginalized black and brown communities that occur with the shift toward pretrial algorithmic governance. First, marginalized communities most impacted by pretrial detention are largely excluded from the algorithmic construction process. This can lead to the creation of particularly harmful algorithms for that community. Second, pretrial algorithmic governance entrenches marginalized communities’ exclusion from pretrial governance just as effective bottom-up strategies to combat the harms of cash bail detention are spreading. The expansion of actuarial risk assessments in lieu of that flawed practice repositions the most impacted marginalized communities as outside the scope of political influence over pretrial decision-making. Finally, pretrial algorithmic governance perpetuates the adverse effects of the criminal legal system on the ability of system-involved people to realize full participation in a democratic society. By reproducing exclusion in governance, pretrial algorithms threaten to exacerbate the political, social, and economic costs of unnecessary carceral supervision experienced by the most marginalized.
In light of the particular harm pretrial algorithmic governance poses for marginalized communities, Okidegbe considers popular public participation “solutions” to this governance problem. These include focus groups, public hearings, and appointed citizen boards, all of which could provide “ex-post input” but do not retain power over first order questions like whether to adopt a tool at all. Such interventions, she argues, do not resolve the particular harm to marginalized populations because they are not “power-shifting” approaches by design. Indeed, those in power can use such symbolic gestures to make pretrial algorithmic governance appear legitimate without redistributing power to marginalized communities, which creates another kind of harm.
Yet power-shifting approaches are feasible, and here is where Okidegbe’s work shines. She argues that localities could create bail reform commissions that intentionally pursue communal involvement. These commissions would need power to make key decisions in the adoption, implementation, and oversight of pretrial algorithms. The commissions would have to be populated with representatives from the most impacted communities, meaning Black individuals with some direct connection to the experience of incarceration or crime. Moreover, the commission would have to be designed to prevent power differentials between technocrats and “marginalized community commissioners.” If these design features were incorporated into pretrial algorithmic governance, then perhaps the algorithms would improve by “mitigating negative externalities associated with the imposition of incarceration on low income communities.” Regardless, it would transform pretrial governance into a space of deep democratization. This would redress the exclusion and political estrangement facilitated by the expansion of the carceral state.
Okidegbe anticipates great resistance to her proposal, so she spends a fair amount of time engaging with various objections. Critics of the democratizing criminal law scholarship may reject her proposal because such layperson involvement reflects “penal populism” that actuarial risk assessments are imagined to combat. Algorithmic reformers may resist these governance changes because it could produce algorithms not tightly tethered to their technical conception of accuracy. Judges may resist using tools built by community members. Marginalized communities may reject her proposal because it contradicts tenets of individual sentencing.
The resistance really makes the point of the paper. After all, if so many people would reject such deep democratization, then algorithmic governance is not compatible with a racial justice agenda. Now, many would say they never committed to a racial justice agenda by embracing actuarial risk assessments. That may well be true. But if that is the case, we must release ourselves of the assumption that this way has to be the way to address racialized mass incarceration. There are other ways to reduce incarceration, many of which those most affected by the carceral state have already begun to imagine. The real question Okidegbe’s contribution raises, then, does not concern whether algorithms can be democratized. It’s why we as a society are not willing to embrace those other possibilities.
Karen Pita Loor, The Expressive Fourth Amendment
, 94 S. Calif. L. Rev.
__ (forthcoming, 2021), available on SSRN
For over a year, protests and police brutality have been at the forefront of the public mind. In the summer of 2020, people were horrified by the images of officers arriving in armored bearcats, donning military battle gear, lodging projectiles of banned chemical weapons at peaceful Black Lives Matter protesters and walls of moms, and even engaging in dictatorship-style “disappearances.” Those protests, 25 million strong and admirably nonviolent, were themselves a reaction to the police brutality which took George Floyd’s life and was captured in a wrenching viral video. Last summer, there was a clear right-left divide on the desirability and propriety of heavy-handed protest policing tactics. The violent images moved many on the left to call for the defunding, disarming, and even dismantling of police forces. But many on the right felt police were entirely too restrained and offered as evidence the Seattle “CHOP” zone—the apotheosis of anarchic dystopia for conservatives. Then came 1/6 and the storming of the U.S. Capitol, and it was liberals decrying the police’s restraint in handling the pro-Trump rally-turned-riot.
For decades, scholars of policing and criminal procedure have wrestled with the issue of police use of force against protesters. In recent years, and especially after the Ferguson protests, there has been a virtual consensus among legal scholars that the Fourth Amendment use-of-force framework established in Graham v. Connor is entirely too permissive of police violence against protesters—and everyone else. Experts have called for doctrinal reforms ranging from altering Graham’s test for excessiveness to eliminating the qualified immunity doctrine. Also since Ferguson, a number of scholars have weighed in on the First Amendment implications of protest policing, arguing that police management tactics were not mere time, place, and manner restrictions, but serious infringements on free speech. For the most part, these Fourth and First Amendment critiques of protest policing have been siloed: either reform Fourth Amendment law to make it harder for police to use force on anyone or broaden First Amendment speech protections for protesters. In The Expressive Fourth Amendment, Professor Karen Pita Loor offers an important, novel intervention to the ongoing discussions of protest policing.
Loor draws on legal history and constitutional jurisprudence to argue that a policed person’s engagement in speech activities should factor into not just First Amendment analysis but also Fourth Amendment use-of-force analysis. Coining the term “the expressive Fourth Amendment,” she makes the case that substantive speech concerns lay at the very heart of the Constitution’s prohibition of “unreasonable search and seizure.” After outlining current protest policing litigation and how judges apply the Graham test, Loor turns to history. She writes “The very concept of the Fourth Amendment derives in part not just from a concern of government intrusion, but of the power of that intrusion to quell political thought. Freedom of expression was very much in the framers’ minds when constructing these first ten amendments, and its protection was encapsulated within the First Amendment and the Fourth Amendment.”
The article’s fascinating historical discussion begins decades before the Bill of Rights with a British sedition case against a newspaper critical of King George III, The North Briton. Because the publishers were unknown, the crown issued a number of general warrants to discover the culprits. These warrants presaged widespread and invasive searches of people tangentially related to the paper. The North Briton case ultimately led to the ban on general warrants and greatly influenced the U.S. Constitution’s framers. Later, the North Briton case informed the Supreme Court’s Fourth Amendment “papers” jurisprudence. In this line of cases, Justice Douglas asserted that “[t]he Court misreads history when it relates the Fourth Amendment primarily to searches for evidence to be used in criminal prosecutions. . . . [I]t was the search for the nonconformist that led British officials to ransack private homes.” Examining the papers cases and a number of other Supreme Court opinions on the policing of expressive conduct, Loor brings to light a principle that has been all but ignored in today’s use-of-force cases: Courts determining the reasonableness of police force must “examine what is ‘unreasonable’ in light of freedom of expression” and impose a “higher hurdle” when seizures implicate expression, as the Court stated in Roaden v. Kentucky.
Loor then examines how the framework of reasonableness “in light of freedom of expression” alters the Graham analysis in protest cases. Graham already directs courts to take into account the policed person’s underlying activity—violent felony, misdemeanor, unlawful gathering, etc. The expressive Fourth Amendment framework would add to this analysis whether the underlying activity was also speech related. Now, one may query whether courts should distinguish between unruly protestors and, say, an unruly gathering of pandemic-fatigued partiers on the streets Boulder, CO or Ocean Drive. Loor’s answer, drawing on the Supreme Court cases, is “yes.” Protest policing involves a different state-versus-individual interests calculus because it implicates “an additional and countervailing public interest in ensuring the broad exercise of First Amendment freedoms,” in Justice Brennan’s words.
Loor highlights the Court’s admonition that constitutional protections should be most robust when the risk of police abuse is high. One cannot imagine a higher risk of excessive force than during a protest that condemns the police. By contrast, the police were surprisingly unprepared and restrained during the 1/6 insurrection. This, the author argues, fits with the “data . . . that far-right activists have received a much more restrained, and at times even friendly, reception by law enforcement” and ultimately demonstrates the need to ensure that protest policing is itself content neutral. The article concludes in a novel fashion by offering a rewritten judgment. Loor reimagines White v. Jackson, an Eighth Circuit case involving police brutality against a protester, creating something of a template for applying the expressive Fourth Amendment framework.
In sum, this article has the potential to affect a doctrinal paradigm shift in the analysis of protest policing. I hope it will receive the attention it deserves and move judges to recognize in their Fourth Amendment analyses the incontrovertible principle that they claim to venerate: protesting is not a crime.
Most scholarship about the impact of technology on policing has been of the sky-is-falling variety. The typical author recites a litany of technological advances, points out how those advances have made policing much more intrusive and pervasive, and then calls for a warrant requirement, some version of “privacy by design,” or perhaps even a prohibition on whatever surveillance technique is at issue. Maintenance of privacy is the main, if the not the dominant, goal.
In Smart Surveillance, Ric Simmons takes a completely different view. Adopting a cost-benefit analysis, he embraces technology that can make policing more efficient. The common scholarly refrain is that maximum Fourth Amendment protection must be imposed whenever technology gives the police a leg up—whenever, as the Supreme Court’s opinion in Carpenter v. United States put it when explaining why a warrant is required to obtain cell site tracking information, new technology makes enforcement efforts “remarkably easy, cheap, and efficient compared to traditional investigative tools.” To Professor Simmons, this stance makes no sense. Such thinking, he says, “turns the cost-benefit analysis on its head by seeking to deter some of the most productive searches available to law enforcement.” (P. 121.)
Professor Simmons plays this idea out in four different settings: reactive searches, binary searches, mosaic searches, and hyper-intrusive searches. Reactive searches are those that use technology to counteract privacy-enhancing technology, such as encryption, high-powered heat lamps (of the type the defendant in Kyllo v. United States used to grow marijuana indoors), and third-party services that enable would-be criminals to carry out their activities under cover of the Internet. Binary searches rely on technology that can discover criminal activity and nothing else, as the Supreme Court has assumed drug-sniffing dogs can do. Mosaic searches are those that use technology to accumulate information from numerous public sources much more cheaply and quickly than through traditional means—for instance, cell phone tracking rather than tailing, or buying information from data brokers rather than tromping from one records office to another. In contrast to reactive searches, hyper-intrusive searches “over-react” to privacy enhancing developments by, for instance, enabling continuous surveillance of phone and email conversations, covert surveillance of the home, and interceptions of computer and phone communications.
In each of these scenarios, Professor Simmons argues that courts need to do a much better job gauging the security benefits and the privacy costs. Ideally, this benefit-cost analysis would be carried out in as quantified a manner as possible. For instance, on the benefits side, Professor Simmons argues that big data can help generate statistics on the efficacy of various techniques—ranging from hit rates for stops and frisks in “high crime” neighborhoods to arrest rates resulting from CCTV cameras and cellphone tracking. On the cost side, he envisions greater use of surveys measuring community views of intrusiveness as a means of calibrating privacy interests.
This methodology is then applied throughout the book. Although he does not reach definitive conclusions on the matter, Professor Simmons suggests that, based on the available data, the stop and frisk practices of many cities cannot be justified, but that predictive policing using algorithms could be, at least when they incorporate or are combined with conduct that gives the police some reason to believe criminal activity is afoot. Additional possible benefits of this data-driven policing—assuming the decision-making algorithms are disclosed and used even-handedly—include more transparent decision-making, a redistribution of privacy toward the disadvantaged, and less racially-based policing.
More confidently, Professor Simmons argues that binary searches will virtually always be justified on a cost-benefit rationale, as long as the technology is accurate most of the time (and thus does not generate a large number of false positives) and does not require suspicionless seizures to operate. He also suggests that some reactive searches (e.g. thermal imaging of the home) and mosaic searches (e.g., tracking of public travels) might be justified on much less than probable cause, give their efficiency and their relative unintrusiveness (compared to, for instance, full searches of the home). Hyper-intrusive searches, on the other hand, might require, as Title III does for electronic surveillance, not only ex ante review and probable cause, but a showing that no less intrusive technique will be productive. However, in contrast to much academic commentary, Professor Simmons agrees with Maryland v. King’s conclusion that suspicionless collection of DNA is permissible, and even gestures toward approval of a universal DNA database, given the ability of junk DNA to identify perpetrators without revealing other intimate facts.
Leaving no controversy untouched, Professor Simmons also argues in favor of the third party doctrine, which allows police to obtain data in the hands of banks, phone companies, Internet service providers and the like with a mere subpoena, and sometimes a simple request. If Carpenter is any guide, at least six justices, along with most Fourth Amendment scholars, have serious reservations about the doctrine. But Professor Simmons points out that the personal data maintained by modern companies can be extremely useful to law enforcement and that “millions of individuals already knowingly—and at times, willingly—share this information with third-party companies.” (P. 154.) To Professor Simmons, these high security benefits and low privacy costs weigh in favor of the current regime. He also notes that, increasingly in the past decade, some third parties (e.g., Google, Apple and some DNA companies) have been willing for their own business-related purposes to resist law enforcement investigations, a development that allows those individuals who are concerned about privacy to pay for it.
I do not agree with every point made in this book. But Professor Simmons has provided a very useful counter-point to much of the scholarship about police use of surveillance techniques. His insights cannot be ignored as we race headlong into a new era of policing.
Cite as: Christopher Slobogin, The Costs of Privacy
(September 6, 2021) (reviewing Ric Simmons, Smart Surveillance: How to Interpret the Fourth Amendment in the Twenty-First Century
Anna Lvovsky, Rethinking Police Expertise
, 131 Yale LJ.
__ (forthcoming 2021), available at SSRN
Recently, an outstanding anonymized article and exemplar of a law journal student editor’s peer review request landed in my inbox. This reflection covers both the article and the peer review request from the Yale Law Journal because they capture salutary trends in legal scholarship. The article is Police Expertise, which I learned only after submitting my peer review, is by Professor Anna Lvovsky. It tackles an important issue for practice as well as criminal procedure scholarship—deference to asserted police expertise. The peer review request asked astute questions, three of which should be asked more often for such scholarship: (1) whether the author’s account accurately tracks actual practice on the ground, (2) whether the key theoretical labels and distinctions make coherent useful sense, and (3) whether the theorizing is likely to have ramifications in practice, not just scholarship.
In this time of an acute crisis of trust in law enforcement, the topic of expertise is important—and apparently hot. Within about a week, I received peer review requests from two different leading journals with two different anonymized articles about the issue. The timing was fortuitous—it was about the time I had to select excellent scholarship to feature for this Jot. Professor Lvovsky’s article illuminates this issue, which has sparked debates in scholarship and practice, from a fresh perspective, and with outstanding research that goes well beyond easily accessible, published sources. Lvovsky’s Police Expertise, now forthcoming in the Yale Law Journal, examines the seemingly counterintuitive emphasis on police expertise by the defense rather than the prosecution, and to attack rather than to seek judicial deference to police claims.
The key insight of the article is to shift to the understanding of police expertise. Lvovksy argues that the police are strategic experts, and this kind of expertise can actually undermine the basis for deference to police claims. Lvovsky differentiates between what she terms “technological expertise” and expertise as a “professional virtue.” Expertise as a professional virtue has a normative dimension that encourages institutional deference to the police. In contrast, technological expertise is about police proficiency at certain strategies and tactics, such as trickery to elicit incriminating statements. Lvovsky illuminates how the technological expertise of the police should be cause for caution by the courts in crediting certain law enforcement claims, rather than a basis for the customary deference. For example, police expertise in tricking vulnerable suspects can be a basis for giving more credence to defendants’ claims, potentially addressing the major imbalance of power in police-said, defendant-said credibility contests.
The question posed by the student editors in their review request is one that I hope will be asked by all editors considering publishing a criminal justice piece that advertises some theory or reform of what happens in the system. Does the polished academic theory and resulting proposal accurately understand actual practice on the ground? Especially in the criminal justice context, a lot of practices that structure the system never make it into published case reports or other forms of laws on the book. To truly understand the phenomenon about which a scholar hopes to opine, the scholar must have actual practice experience—or do some excellent fieldwork or archival work, or some combination of the above. Lvovsky’s piece is compellingly attentive to, and informed by, the pattern of arguments one regularly hears as an experienced attorney with frequent court experience.
Lvovsky’s outstanding research collects common defense arguments before trial judges in motions to suppress and other motions practices. An outstanding historian, she brings her large toolkit of research talent to a contemporary important phenomenon. Reading the article’s quotations of popular lines of defense arguments regarding alleged entrapment, coercion of incriminating statements, and improper use of force brings back memories of hundreds of hours spent in courtrooms doing motions practices and hearing motions while waiting for cases to be called.
It is a pleasure to read a piece that looks beyond appellate opinions to the practices of motions hearings. Lvovsky illuminates counter-intuitive uses of police expertise by the defense—which is fascinating in itself. Heightening the piece’s impact, Lvovsky explores the implications of these defensive use of police expertise for the broader question of how factfinders should evaluate police expertise. Rather than making a uniform case for deference, the nature of police expertise sometimes argues in favor of judicial caution or suspicion toward law enforcement claims.
A surprising upside of being a peer reviewer in the student-edited law review sphere, in contrast to social sciences journals, is that the astonishingly short deadlines compel you to read the piece nearly immediately. If you agree, you will read the piece at midnight when all the paying work is done, and the other members of the household are soundly asleep. You do this for a combination of reasons: karma, gratitude to amazing student editors running the mind-blowingly massive law scholarship system, and—perhaps most of all—the hope that you will read something outstanding and get to write a glowing review. The best part of peer review is when you get to read a great piece before the rest of the world, and to share your excitement about it.
Another hidden upside is seeing law student editors—the subject of angsting, consternation and even grief in the legal blogosphere—asking important questions about the real-world relevance of legal scholarship that should be asked more often by the scholarly experts.
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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.