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.
Good citizenship and eager participation in police investigations would seem to fit hand-in-glove. The good citizen helps to enforce the criminal law, particularly if the physical safety of the citizenry is thought to be at risk. But as Bennett Capers argues in his essay, Criminal Procedure and the Good Citizen, this version of the good citizen—crafted and propagated by our nation’s highest court—falls into direct tension with the activist principles animating the Civil Rights Movement. For instance, Martin Luther King, Jr., insisted that the citizen not suffer from a cultural condition Capers describes as “too much respect for majoritarian law.” (P. 704.) The Movement, led by persons we now consider some of the greatest citizens in our nation’s history, rejected the notion of reflexive deference to majoritarian law and its enforcement.
During the Civil Rights Movement, the good “civil rights” citizen was inclined to assert her rights and to fight to extend them. After accounting for instances in which the Supreme Court, in its Fourth Amendment cases, admonished citizens to forgo their civil rights in the interest of effective police investigation, Capers poses a philosophical question. In the distinctive space of police-administered criminal procedure, what is the good citizen’s civic duty?
Capers details how, over the past several decades, the Court has pushed a narrative of good citizenship that is based upon deference to police, even—and perhaps especially—when the police officer formally requests that the citizen relinquish her civil rights. Among several examples, Capers discusses U.S. v. Drayton, a Supreme Court case addressing whether the defendant’s consent to a police search represented a voluntary (rather than coerced) waiver of his Fourth Amendment rights. The search in Drayton took place on a coach bus scheduled to travel from Ft. Lauderdale, Florida, to Detroit, Michigan. As three police officers entered the bus, the bus driver immediately exited the vehicle (“yielding his custody of the bus,” according to a dissenting Justice Souter). One officer knelt on the driver’s seat; another walked to the back of the bus and faced forward. A third walked from the front of the bus to the back, speaking with each passenger about possession of drugs and weapons. When the questioning officer reached Clifton Brown, Jr., Drayton’s travel partner, he asked Brown if Brown had baggage on the bus. The officer then asked to search Brown’s baggage. Finding no contraband, the officer asked, finally, if he could pat down both Brown and Drayton. Both ostensibly consented and the officer found cocaine taped “between their shorts.” In explaining that the investigating police had not created a coercive atmosphere on the bus, Justice Kennedy, writing for the majority, offered the following: “[B]us passengers answer officers’ questions and otherwise cooperate not because of coercion but because the passengers know that their participation enhances their own safety and the safety of those around them.”
Capers takes a moment to imagine himself, an African American man, as a passenger under scrutiny on the Drayton bus. He questions whether he would have permitted police search of his belongings and his person, waiving his Fourth Amendment right against “unreasonable” search and seizure. An African American passenger might choose to obstruct the bus investigation for a dozen reasons, not the least of which would likely be the privacy and dignity the police institution has casually stolen from African Americans since the institution’s inception. Recognition of this history would seem to demand an alternative conception of good citizenship, but one that comes with the risk of heightened police scrutiny. Contemplating such risk, Capers asks, “[A]m I the suspect on the bus being asked if I would mind consenting to a search, or am I one of the ‘good citizens’ around him…who were disciplined into opening their bags by example and who deployed the Court-endorsed psychology of group pressure, ‘encouraging consent’”?
From the Court’s vantage point, there seems to be no meaningful value in playing the role of conscientious objector to a warrantless police search. The often-arbitrary quality of police searches and, relatedly, their targeting of racial minorities, has not chastened the Court in its imagining of civic duty in criminal procedure. Capers does not beat around the bush in clarifying the implications of the Court’s remarkably shallow conception of civic responsibility: “[T]here is something deeply problematic about citizenship talk that encourages citizens to surrender to constitutional protections and to serve as willing posse comitatus to a criminal justice system known for overcriminalization, overincarceration, and unequal policing.” (P. 670.) Capers observes that given the Court’s race-blind conception of good citizenship in criminal procedure it is no wonder that police view rights assertion in response to a police request for rights waiver with incredulity and suspicion. (P. 679.)
After dissecting the expressive quality of the Court’s “citizenship talk,” Capers proposes a normative project: the formulation of a model of good citizenship in criminal procedure that is informed by the African American experience. However, the project bumps up against sympathetic portrayals in recent scholarship of elite law enforcement actors—minorities, no less—who claim a “civil rights” approach to criminal procedure in their implementation of rights-ambivalent policing policies. In the book chapter, “What Would Martin Luther King, Jr., Say?” James Forman reports that in a speech on MLK’s birthday, then Attorney General for the District of Columbia, Eric Holder, announced a stop-and-search policy that he would soon implement via the city’s traffic code. This policy, part of a larger effort to “break our young people’s fascination with guns,” was a civil rights project that openly disregarded African American civil rights.
Forman treads lightly in expressing the shortcomings of Holder’s racial profiling fiasco. He characterizes Holder’s stop-and-search policy as misguided, but in a practical sense given that the policy’s benefits were inevitably coupled with tangible costs, namely elevated rates of African American arrest, conviction, and incarceration. But this sort of cost-benefit analysis lets Holder off the hook. It sets aside his brazen attempt to turn the ethos of the Civil Rights Movement on its head. In identifying and sharply criticizing the Court’s attempt to pit regard for civil rights against notions of good citizenship, Capers essay should be read as a sorely needed rebuttal.
Even in this moment of national soul searching regarding the appropriate role of police in society, the notion of a healthy and enduring skepticism of the police institution may strike many readers as plainly radical. What of community policing, and normative modeling of police-community relations? Such projects certainly have their place. However, their consideration should be steeped in consideration of the national public’s historical skepticism toward police, and insulated from the police infatuation evidenced in American culture over the past several decades. For much of American history, the national public understood skepticism of the police institution—irrespective of penal outcomes—to be a necessary bulwark against government power run amok. Here, we might consider the modern libertarian’s skepticism toward the Internal Revenue Service as a helpful analog, while also bearing in mind that this line of state scrutiny has been subject to far less criticism.
Given the nation’s rich history of skepticism toward the police institution and its ongoing love affair with freedom, one is left to wonder how and why Americans became police enthusiasts. How did a nation philosophically centered on the principle of liberty come to adore the lone government agency holding a monopoly on the legitimate use of force?
- Jenny E. Carroll, Pretrial Detention in the Time of COVID-19, __ Nw. U. L. Rev. Online __ (forthcoming 2020), available at SSRN.
- Benjamin Levin, Criminal Law in Crisis, __ Colo. L. Rev. Forum __ (forthcoming 2020), available at SSRN.
The novel coronavirus and its attendant disease, COVID-19, have created a pandemic in 2020. Mass incarceration and the attendant expansion of the carceral state is an epidemic in the United States. The intersection of the pandemic and this epidemic is proving toxic. Prisons and jails are emerging as hot spots for infection across the country. Incarcerated persons, employees at jails and prisons, the family members of both, and those who come in contact with those family members are all affected by the crisis. Demands for change are growing. Like so many other facets of our daily lives, COVID-19 promises to leave its mark on the administration of criminal law. The only question remains – how?
Two new essays begin to grapple with that question. In her essay, Pretrial Detention in the Age of COVID-19, forthcoming in the Northwestern University Law Review Online, Jenny Carroll highlights how the pandemic exacerbates the threat of unnecessary incarceration and exposes an inaccurately narrow conception of “community” in relation to pretrial detainees in criminal administration. In his essay, Criminal Law in Crisis, forthcoming in the Colorado Law Review Forum, Benjamin Levin suggests that, through the prism of the pandemic, flaws of the ordinary administration of criminal law become visible and doubt creeps in as to whether those features make sense, or if they ever did. Because these essays together bring forward hopeful possibilities in this moment for criminal administration, each is a must-read piece for those concerned about mass incarceration, the pandemic, or both.
The pandemic occurs at a moment when bipartisan enthusiasm to address the United State’s reliance on incarceration is high. Among other popular reforms, enthusiasm has developed around changing pretrial detention determinations. Defendants are often held before trial in jails because they cannot pay bail. Reformers urge states to abandon money bail. In its place, states are adopting technical, actuarial risk assessments to shape decision making around statistical predictions of a defendant’s flight risk and future dangerousness. The tools may assist judges in determining which defendants to release or detain in jails while awaiting trial. Reformers hope such reforms will encourage meaningful and feasible reductions in pretrial incarceration.
Carroll warns that, despite recent changes hailed as successes by many, COVID-19 exposes a deleterious pretrial detention system that fundamentally miscalculates the balance between public safety and individual liberty. Even before COVID-19, pretrial release determinations have been flawed. Defendants lack robust procedural protections, release determinations are deeply inflected with racial and economic biases from various criminal justice actors, and decisionmakers fail to account for the significant downstream consequences of pretrial detention like job loss and child custody issues when making their determinations. COVID-19 exacerbates these concerns. Defendants and the communities they live in (including the jails themselves) face significant hardship – the threat of fatal contagion – when judges detain an individual pretrial. Court closures and trial delays extend the time defendants are being held in jails, which also prolongs exposure to the threat of infection. The costs of medical care are rising while jail facilities are resistant to adopting stringent health protocols. This suggests that the calculation between the individual’s interest in release and the community interest in public safety is dynamic. The actuarial risk assessments central to recent pretrial reforms are not.
Carroll looks to the courts to rebalance this calculation on an individual basis. COVID-19, she suggests, raises the specter of a potential substantive due process claim from individual defendants held pretrial. At the very least, it requires courts to balance the state’s interest in preserving safety versus an individual’s interest in liberty when making pretrial release determinations. COVID-19 enhances the defendant’s interest in liberty in release or additional medical care because the threat of infection in jail is high. COVID-19 also demonstrates that “safety” for the community might mean keeping individuals out of jail rather than putting individuals in it. Incarceration increases threat of infection to defendants, their families, jail employees and their families, too. Though not everyone should be released, COVID-19 illuminates the persistent disconnect between community and individual in calculating detention or release determination. Carroll urges courts to adopt a broader and more fluid view of community going forward. Her essay cautions against complacency: this extraordinary pandemic may exacerbate existing flaws in the ordinary pretrial detention system and illuminates the shortcomings of recent reforms.
Where Carroll offers a path to legal transformation, Levin shows the promise of conceptual change in this moment of crisis. He argues that the pandemic sheds light on the irrationality of some ordinary features of criminal administration. He points to two examples. First, it urges “sentencing realism.” Currently, criminal administrators discuss punishment in the abstract as finite chunks of time or bimodal determinations of location. For example, one is sentenced to 60 months imprisonment or two years on probation. COVID-19 demands recognition that these metrics obscure how the experience of punishment is far more complex, with effects that linger long after an individual serves a term of incarceration. Second, the pandemic illuminates how very localized criminal administration truly is. Rather than a “system” influenced heavily by federal policy, criminal administration is a “carceral archipelago” with multitudes of local administrators implementing localized policies. Different states, counties, and municipalities have adopted different responses to criminal administration in the pandemic. That COVID-19 focuses so precisely on local decisionmakers only emphasizes what scholars of mass incarceration increasingly note: resistance to problematic criminal law enforcement practices often generates from the local level. Perhaps COVID-19 makes more space to see that now.
Levin’s contribution is primarily concerned with rhetoric, so it bears implications for many different points in criminal administration including pretrial release determinations. The way we speak about punishment is important. The way we speak about the intersection of the pandemic and criminal justice is important, too. The pandemic is a crisis, but criminal administration creates crisis, too. And while crisis can provide a basis for transformation, Levin warns that wholesale adoption of a crisis mentality has its flaws. We may yearn for the “normal” again as if it were not already deeply flawed. The crisis may also obscure “structural and systemic pathologies” as aberrations rather than the norm, thus legitimating different features of criminal administration. Levin’s essay advises against that path.
It would be easy to characterize these contributions as pragmatic versus aspirational takes on the effect of COVID-19 on criminal administration. Yet both essays offer similar, substantive takeaways about this moment for criminal administration. These authors reflect on the corrosive intersection of punishment and society laid bare by the coronavirus. They weave into discussion not only what could be about criminal administration, but what already is – how criminal administration operates in society, what’s its impact, and on whom. They emphasize the structural realities of the carceral state as an epidemic upon which COVID-19 as a pandemic expands. Rather than invite despair in those realities, however, both Carroll and Levin give the reader reason to find hope in change.
Surely, this pandemic intersects with criminal law along many dimensions. Highlighting these timely essays only skims the surface of issues to consider. Still, these essays offer an exciting frame upon which future legal scholarship promises to build. Both essays resist the temptation to conclude that COVID-19 is wreaking havoc on criminal justice. Rather, they emphasize that criminal administration wreaks havoc in a stratified society, and COVID-19 provides a window to see that havoc in a new light. Far from calling for fixes that keep the “system” operating with business as usual, these essays demand that we question business as usual in criminal administration. Both remind us that this critical reflection is imperative not because it is convenient or efficient, but because it is necessary. COVID-19 illuminates that necessity.
Jessica Eaglin, COVID-19’s Effect on Criminal Administration in the Era of Mass Incarceration, JOTWELL (July 30, 2020) (reviewing Jenny E. Carroll, Pretrial Detention in the Time of COVID-19, __ Nw. U. L. Rev. Online __ (forthcoming 2020); Benjamin Levin, Criminal Law in Crisis, __ Colo. L. Rev. Forum __ (forthcoming 2020)), https://crim.jotwell.com/covid-19s-effect-on-criminal-administration-in-the-era-of-mass-incarceration.
Deborah Hellman, Sex, Causation and Algorithms: Equal Protection in the Age of Machine Learning
, 98 Wash. L. Rev.
__ (forthcoming, 2020), available at SSRN
States have increasingly resorted to statistically-derived risk algorithms to determine when diversion from prison should occur, whether sentences should be enhanced, and the level of security and treatment a prisoner requires. The federal government has jumped on the bandwagon in a big way with the First Step Act, which mandated that a risk assessment instrument be developed to determine which prisoners can be released early on parole. Policymakers are turning to these algorithms because they are thought to be more accurate and less biased than judges and correctional officials, making them useful tools for reducing prison populations through identification of low risk individuals.
These assumptions about the benefits of risk assessment tools are all contested. But critics also argue that, even if these instruments improve overall accuracy, they are constitutionally suspect. While no instrument explicitly uses race as a “risk factor” (which in any event is probably barred by the Supreme Court’s decision in Buck v. Davis), several do incorporate sex (with maleness increasing the risk score) and many rely on factors that are highly correlated with race or socio-economic status, which is said to violate equal protection principles.
In Sex, Causation and Algorithms, Deborah Hellman, a philosopher and constitutional law scholar, provides some provocative food for thought on this issue. The article focuses on the Supreme Court’s Fourteenth Amendment caselaw on sex as a classification. But the approach to equal protection that Hellman develops could also provide a response to many of the other discrimination and disparate impact challenges aimed at risk assessment instruments.
Hellman proposes what she calls an “anti-compounding injustice” theory of equal protection, which presumptively prohibits use of sex as a classification when, but only when, the classification would “compound” sex-based injustice. For instance, while she agrees with the Supreme Court’s decision in Frontiero v. Richardson, which held that the military may not use sex as a proxy for whether a member of the service is a financially dependent spouse, she would adopt a different rationale. The Court looked at the “fit” between sex and spousal dependency (which, at the time, was fairly good, and thus did not obviously support the Court’s conclusion). Hellman would instead look at whether the fact that women tend to be the dependent spouse was the result of sex-based injustice (which it was, given society’s longtime privileging of male domination). Hellman’s analysis of United States v. Virginia is similar. While the Court in that case held that denying women admission to a military college would reaffirm demeaning stereotypes even if only one woman had the “will and capacity” to enter, Hellman points out that this type of reasoning is, in effect, strict scrutiny, not the more relaxed intermediate scrutiny supposedly applicable in sex cases. Hellman argues that the better rationale for the case is that preventing women from entering the academy would be compounding the sex-based injustice that has made women less likely to be willing and qualified to enter such schools.
Hellman contends that her anti-compounding injustice theory is consistent with most of the Court’s cases, at the same time it is less confusing than the Court’s current focus on whether a sex classification closely fits the state’s goals, exacerbates stereotypes, or reflects “real differences” between the sexes. She also argues that her approach is more morally compelling. She is persuasive on both points. But what does this have to do with risk algorithms?
Hellman starts the paper with a reference to Wisconsin v. Loomis, where the defendant was sentenced to six years after the trial court considered testimony based on the COMPAS, a risk algorithm. Loomis argued that the use of the COMPAS violated due process, because it considers sex as a risk factor. The Wisconsin Supreme Court demurred, noting that “any risk assessment tool which fails to differentiate between men and women will misclassify both genders;” in other words, as an empirical matter, if sex is not taken into account, a woman whose risk factors are otherwise identical to a man’s will be rated as higher risk than she actually is. While Loomis lost his due process argument on accuracy grounds, he might well have won had he framed his challenge in equal protection terms, because the algorithm’s explicit consideration of sex violates the Supreme Court’s current anti-classification approach to the Fourteenth Amendment.
Hellman suggests that result would be wrong. Taking sex out of the algorithm would harm women, which would be compounding injustice, because “the bulk of gender-based injustice has harmed women.” Although Hellman doesn’t explicitly say so, she likewise seems to disagree with the outcome of Craig v. Boren, where the Court struck down a statute that set the drinking age at 21 for males and 18 for females, despite evidence that men were 10 times more likely to drink and drive than women. Her approach thus seems akin to anti-subordination theory.
That observation raises the question of how Hellman would treat disparate impact challenges against algorithms. Many algorithms use risk factors that correlate with race, including employment status, location, and criminal history, the latter the predominant risk factor in every risk algorithm. Current equal protection doctrine would consider such correlations irrelevant unless intent to discriminate can be shown. While Hellman does not directly address this issue, she suggests that anti-compounding theory would approach these cases differently and could even be “revisionary.” She poses a hypothetical in which the state enhances the sentence of an offender who was abused as a child because an algorithm indicates that child abuse is a risk factor, and argues that, regardless of whether discriminatory intent is present, her anti-compounding injustice theory would call such an algorithm into question. One might make the same argument against including a risk factor such as unemployment or criminal history on a risk tool if it correlates with race, given the likelihood that unemployment and criminal offending are higher among people of color because of race-based injustice.
However, Hellman also says this: “Compounding injustice is not a decisive reason to avoid an action in all contexts, nor is the duty to avoid such compounding injustice a duty that trumps everything else,” and adds, in connection with the victimization hypothetical, “[t]he interests of other people – those whom [the individual] may harm if he is released – count as well.” In other words, as is true under traditional equal protection theory, a strong state interest can override compounded injustice. As applied to risk algorithms, this caveat might mean that use of a risk factor correlated with race is permissible if it is a robust predictor. That may not be true of unemployment status, but it is certainly true of criminal history.
Risk algorithms surface a real tension between traditional equal protection law and the goal of ensuring that predictions are as accurate as possible (a tension that exists, by the way, whether prediction is based on algorithms or on subjective judgments, which rely on the same factors as algorithms, only more opaquely so). Hellman’s anti-compounding theory may help courts and criminal justice scholars figure out how that tension should be resolved.
Cite as: Christopher Slobogin, Reconciling Risk and Equality
(July 2, 2020) (reviewing Deborah Hellman, Sex, Causation and Algorithms: Equal Protection in the Age of Machine Learning
, 98 Wash. L. Rev.
__ (forthcoming, 2020), available at SSRN), https://crim.jotwell.com/reconciling-risk-and-equality/