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/
In happier times, shortly before the vise of COVID-19 descended, I joined a conference room full of veteran defense attorneys from New Jersey and New York. The topic for the training convened by the National Association of Criminal Defense Attorneys and the Federal Defenders was missing body camera videos. My co-panelist Benjamin West, a brilliant civil legal aid attorney, writer, and public defender, and the defense attorneys in the audience, had powerful accounts of battling for videos of contested police encounters that should have been available from the police but were missing, partial, or not disclosed.
An article I carried on the flight to share with the defenders was Mitch Zamoff’s study of the impact of police body camera evidence in excessive force cases. Unusual bedfellows, including civil rights activists, bereaved parents, and police leaders, drew together to call for police-worn body cameras. One of their hopes—and hypotheses in need of testing—was that video would provide powerful evidence in excessive force cases. Aiming to investigate that hypothesis, Zamoff’s study found another related, important issue. Nearly a third of body camera recordings in the cases he collected failed to capture the entire contested encounter. Summary judgment in favor of defendants was more likely to be granted if a complete recording is available than if there was no video available at all. The effect was the opposite where only a partial recording was available—plaintiffs were more likely to survive summary judgment than if there was no recording at all. Recordings matter—and the effect is modified by whether they are partial or complete.
Zamoff collected all published summary judgment decisions between 2015 and 2018 in the federal courts on excessive force claims brought under 42 U.S.C. § 1983 in which there was police-worn body camera evidence. Excluding pro se prisoner petitions challenging events during incarceration, Zamoff gathered 66 cases involving body camera evidence. He identified a pool more than a thousand-fold larger of summary judgment decisions from which he could draw a comparison group of § 1983 cases alleging excessive force with no body camera evidence. He ended up selecting 66 cases from that pool, matching his no-recording controls and recordings-available cases by judicial district.
Delving into his dataset, Zamoff made an important discovery: nearly a third of his body camera cases involved incomplete recordings. Various reasons were proffered for incomplete video, such as officers not activating the camera in time, officers arriving at the scene at various times, field of vision being obstructed, and poor video quality.
Zamoff found that summary judgment motions were granted in just 31.8% of cases with partial body camera evidence. In contrast, where there was complete body camera evidence, summary judgment was granted in 77.1% of cases. In his comparison group where there was no recording at all, judges granted summary judgment about 53% of the time. Zamoff ran chi-square tests and found significant associations between the likelihood of a grant of summary judgment and having partial or complete video.
If body camera cases are not stratified by whether video is partial or complete, then the impact of complete body camera recordings are obscured by effect modification in partial video cases. In other words, if we crudely compared cases where there was no recording to those with a recording, we might erroneously conclude there was no impact because we would be lumping together the partial video cases where judges are less likely to grant summary judgment with the complete video cases where judges are more likely to grant summary judgment.
Zamoff concludes that judges are more comfortable dismissing excessive force claims on summary judgment where the judge can see the whole contested encounter on video for themselves. In contrast, judicial willingness to let a case go to a jury appears heightened if a recording is only partial. Zamoff posits that judges might not give officer testimony the same weight if there is a partial recording than if there is no recording at all and that partial video may just magnify the factual disputes that are the jury’s province to decide. Commentators who predicted that body camera evidence recording the officer’s view would benefit law enforcement defendants appear correct, but only where the recording is complete rather than partial.
Zamoff’s findings bring to mind another debate among commentators after the U.S. Supreme Court decided Scott v. Harris, an excessive force case with a dash camera recording. Prominent commentators, including Erwin Chemerinsky and Dan Kahan, contended that the majority of justices succumbed to the allure of video and the temptation to decide a matter in lieu of the assigned fact-finder, the jury. Perhaps where video is literally partial—incomplete—judges are more alert to how videos are not merely transparent, unbiased windows into what happened. In contrast, complete video may lull judges into thinking they have the full story, missing the subtle framing effects, single-perspective, and other hidden partiality in video.
Zamoff’s study is a laudable first foray into an important empirical question. He investigates issues about which more empirical research would be illuminating. One can always critique methods, such as the construction of the comparison group, multiple comparisons issues, and whether investigation into effect modification was pre-specified, and so forth. The bigger picture is that there is much fertile ground to explore. Thanks to Zamoff’s work, we know that future inquiries should be sensitive to effect modification by partial or complete video—perhaps even by reason for partial video, as the dataset of cases with body camera evidence grows larger over time. From the experience of litigators in the trenches, the issue of missing or partial video—and the larger question of whether having video matters, and how—are practically important and worthy of further investigation joining Zamoff’s work.
“With the Fourth Amendment gone, eyes are on the First,
That’s why I’m spittin cyanide each and every verse”
These lyrics from Paris’ 2003 album, Sonic Jihad, seemingly anticipate a future of curtailed free speech for African Americans. The growing practice of using rap lyrics against criminal defendants represents one way this is occurring in the United States today. In the song, the reference to the Fourth Amendment’s absence refers to policies that include aggressive stop and frisk campaigns, the proliferation of “no-knock” warrants, and police shootings of Blacks, among other afflictions. Simply living in a “high crime” area—what is often the hoods, ghettos, and barrios of the United States—is a factor that works to the detriment of the defendant when it comes to police establishing reasonable suspicion to stop, and possibly frisk, an individual. For Paris, this gutting of the Fourth Amendment has cleared space on the chopping block for free speech.
Rap on Trial: Race, Lyrics, and Guilt in America, by Erik Nielson and Andrea L. Dennis, explains how prosecutors use rap lyrics against criminal defendants at trials and sentencings. The book highlights a modern legal tactic that reads like a magic trick. In the hocus-pocus, a prosecutor introduces an author’s poetry into evidence against the author himself, in order to disappear the author into the criminal justice complex. Nielson and Dennis spill the secrets behind this trick, arguing that this “evidence” should be excluded under evidentiary rules. Using lyrics as evidence in this way is bewildering. It effectively treats the defendant’s lyrics as a biography for whatever purpose the prosecution needs. Even more mystifying is that a product of free speech, rap, is being used to curtail free speech itself, which has stark racial implications since the tactic focuses almost exclusively on minority defendants and a predominantly Black art form.
Generally speaking, this book is an interdisciplinary venture that may be situated in the area of studies known as “hip hop and the law.” As such, the book displays sophisticated expertise in both hip-hop culture and the substantive criminal law and evidence law. The foreword by hip-hop artist Killer Mike adds a dose of authenticity and reality, particularly since what is at stake here is not some theoretical musing—for him it is personal. As an artist and activist, he too risks suffering legal consequences for his own writings.
Scholars working at the intersection of hip hop and the law have underscored a number of issues. On the music side, the rise of electronic sampling in hip hop has spawned copyright issues, litigation, and developments in law and policy, including changes to the way artists create music. Copyright issues have also arisen in the context of D.J. mixtapes and their distribution by hip-hop D.J.s. Moreover, hip-hop artists have had other run ins with the “law” and have had an uphill battle to speak freely. For example, when the group N.W.A. performed on tour, police were notorious for shutting down the group’s shows if they performed “Fuck the Police.” A few years later, police and their unions would fiercely lobby to have Body Count’s 1992 release, “Cop Killer,” removed from record shelves.
The book outlines the various ways that prosecutors use rap lyrics in criminal proceedings. One tactic is to treat the writing as a diary, which is when prosecutors treat a defendant’s lyrics as “rhymed confessions.” When the lyrics were written before the crime, prosecutors treat the lyrics as demonstrating the defendant’s state of mind about the crime and its commission, including motive, intent, and knowledge. Prosecutors have also introduced lyrics to demonstrate evidence of threats made by the defendant. These various strategies of using rap against defendants show a number of ways to exploit the lyrics. The authors give the reader a useful rubric for analyzing court cases described throughout the text. Moreover, they make clear that the treatment of rap as evidence of a threat is somewhat disingenuous, given the nature of hip-hop culture and its historical pedigree of battling and dissing.
This point highlights one of the book’s main strengths, the tracing of hip-hop history and how this cultural development helped to quell gang violence. In addition to the various elements that embody hip hop, the authors highlight the rap and musical aspects as critical, since these elements created novel arenas of musical and oratorical competition. This no-holds barred approach to art was a way of sublimating violent gang rivalry, substituting symbolic violence over real violence through modes of “battle.” In the music, rap offered a new space for artists, particularly young black artists, to experiment and express themselves freely—the good, bad, and ugly. And of course, it was a way to make money and possibly escape poverty.
By detailing the sociological importance of rap to black culture and the voice it gave to urban youth, the book provides an informed context for considering the malignant impacts of prosecutors using lyrics in criminal cases. Hip-hop music once may have been the ultimate space for freedom of expression. Today, however, that space is under attack like no other art form. “No matter that the music provides public commentary. No matter that punishing it, even indirectly will undoubtedly chill it. No matter that courts are not applying their same faulty logic to other art forms.” (P. 114.)
This book is laudable on other counts as well. In its treatment of these complex legal and sociological issues, the work shines with an engaging writing style that is accessible to a general audience. Its thorough research will be welcomed by academic audiences as well, including professional, graduate, and undergraduate students. Not only does this work expose the constitutional and evidentiary flaws in the way the law treats underclass defendants, it also demonstrates the limits of “free speech” for the underclass.
The work’s conclusion is plain and simple: rap lyrics have no place in criminal court. From this work’s perspective, the exclusion is necessary to neutralize the onslaught of aggressive prosecutors and questionable “experts” on gangs and rap lyrics who, together, tip the scales against defendants. Although the authors recognize the possibility of reform to these various problems piecemeal, a more effective and efficient solution would be to eliminate the use of lyrics altogether.
Among other avenues of redress, the authors propose rap shield rules: legislation that would protect free speech by banning the use of lyrics, videos, and other materials as evidence in criminal proceedings. They espouse expressive speech privileges: legislation that would limit the use of evidence that receives First Amendment protection. They also advocate for more rigorous judicial oversight, such that courts perform their actual function as gatekeeper of inadmissible evidence. Finally, the authors propose an abridged notion of nullification for jurors, such that jurors of a criminal case should refuse or nullify consideration of rap lyrics introduced in criminal court. (Pp. 157-60.)
This book is as fascinating as it is frustrating. In pointing out this legal double standard in the prosecution of ethnic minority defendants, the text likely leaves readers indignant about these prosecutorial practices and court laxity. This is especially true when considering that other musical genres—like country, rock, and death metal—are known for graphic and violent lyrics, yet prosecutors have focused nearly exclusive attention on rappers: “Within the criminal legal process, it has become apparent that rapper defendants are not considered legitimate artists and rap music does not merit the artistic recognition granted to other forms of art. This perspective helps courts justify weaker First Amendment protections.” (P. 114.)
With immigration and border control as issues dominating public and political discourse worldwide, it is no surprise that a lot of scholarship addresses these issues. Through various theoretical lenses, scholars across the globe are trying to make sense of the upsurge of nationalistic and punitive legal and policy measures that cater to keeping out the unwanted “other” who could threaten national security or the economy. A new field even seems to be emerging: that of Border Criminology. The field is bringing together criminologists, criminal justice scholars, legal sociologists, and many others working on matters of penal power and immigration control. Weber and McCulloch’s article demonstrates the diversity and the interdisciplinary nature of this emerging field. Ironically, it also illustrates the importance of theoretical integration and looking over disciplinary boundaries to understand the processes and practices of bordering.
In their article, Weber and McCulloch address three main theoretical lenses (to be further) explored by scholars of border criminology. They highlight how these three lenses aim to understand different aspects of immigration and border control, as well as how further integration of these lenses can lead to deeper knowledge of the dynamics and the dialectics of the how, why, and when of immigration and border management. The three lenses they address are: Juliet Stumpf’s “crimmigration” thesis (2006), Mary Bosworth and Mhairi Guild’s adaptation of the “new penology” perspective to the politics of border control (2008), and Susanne Krasmann’s critique of Gunther Jakobs’s “enemy penology” thesis (2007).
The crimmigration lens, according to the authors, accents the how of border control. The concept “crimmigration” sought to address the growing merger of crime control and migration control. As a result of this intertwinement, the immigration process has grown to resemble the criminal process, and the powers of immigration and criminal law enforcement agencies have become almost indistinguishable. Despite these developments, there has been no commensurate transfer of due process protections for individuals from the criminal sphere into the immigration sphere. By describing and analyzing the emergence of this new hybrid of rules and practices, the crimmigration thesis shines light on the mechanisms and processes of immigration and border control, while also drawing attention to the exclusionary effects of it.
In explaining the need to manage and control mobility, the new penology accents the why of border control. By illustrating how (in line with the governing through crime perspective) modern society increasingly addresses all sorts of social problems through the lens of migration and mobility, the new penology perspective shines light on the underlying socio-political and socio-cultural forces that drive the notion of increased migration and border management. Migration, mobility, and those who are “on the move” are framed as potential risks that need close monitoring, in order to avert any threats to national security and national identity.
The enemy penology, lastly, explains the when of border control. Using the language of risk (national security) and by speaking of the “War on Migration,” the adage, “all is fair in love and war,” seems to be explicitly applicable to migration and border control. By introducing all sorts of proactive and preventative measures, state control and penal power are used to identify potential “threats” in the earliest stage possible, even before crimes are committed or laws have been broken. The language and practice of risk assessment and profiling to identify the dangerous other is, therefore, part and parcel of these measures as well. A clear example of this would be the growing externalization of border control where migrants seeking to enter the European Union are already stopped and detained in so-called “third countries.”
Although the topic is not centrally highlighted by the three theoretical approaches, the authors also acknowledge the importance of looking at the multilayered (infra)structure of immigration in border control. The multilayered nature is visible as we see influences of both globalization and glocalization in issues of border control and the management of cross border mobilities. On the one hand, the “voice” and agenda of the (supra)national government is strong and influential. On the other hand, in applying the state perspective, local actors seem to play an important role as well, due to the dynamics of the local context where the measures are implemented—and thus felt most directly. Therefore, in order to answer more completely the how, why and when questions that are central to these analyses, the authors suggest the need to consider the dynamics between the variety of actors and organizations involved at the local, national, and supranational level, and to address the political struggles over values, agendas, and interpretations that result from these dynamics.
By bringing together the different theoretical lenses, the authors show how the penal power of the state at the border is expressed through coercive tools, including deportation, detention, and criminalization. Each of the lenses also consider the question of who is subject to exclusion. This reveals the need for border criminology to further, and more consistently, consider questions of race, citizenship, gender, and neo-colonial relations of power. While we do see some works in the field of border criminology addressing these matters, it is rather limited, especially when looking at non-U.S. and non-U.K. based scholarship. With nationalism and nativism on the rise all throughout the European continent in response to the so-called migration crisis, it seems fair to expect more critical race-oriented reflections on matters of migration and mobility from scholars studying that region.
In conceiving coercive border control as arising from similar sources of power as traditional punishment, the authors illustrate the increasingly porous boundaries between the civil, administrative, and criminal fields generally, and the particular pertinence of this development to the study of migration, borders, and “preventive” interventions.
The article is therefore an important read for anyone interested in matters of migration, bordering, and state control. It gives rise to a series of thought-provoking questions that deserve further theoretical and empirical exploration on the how, the when, the why, and also the who of immigration and border control.
Cite as: Maartje van der Woude, Theorizing Mobility
(April 8, 2020) (reviewing Leanne Weber & Jude McCulloch, Penal Power and Border Control: Which Thesis? Sovereignty, Governmentality, or the Pre-emptive state?
, 21 Punishment & Society
496 (2019)), https://crim.jotwell.com/theorizing-mobility/
As a reminder, from Wikipedia: “The Sandy Hook Elementary School shooting occurred on December 14, 2012, in Newtown, Connecticut, United States, when 20-year-old Adam Lanza shot and killed 26 people, including 20 children between six and seven years old, and six adult staff members. Lanza committed suicide by shooting himself in the head. The incident remains the deadliest mass shooting at either a primary or secondary school in U.S. history. The shooting prompted renewed debate about gun control in the United States, including proposals to make the background-check system universal and for new federal and state gun legislation banning the sale and manufacture of certain types of semi-automatic firearms and magazines with capacity for more than ten rounds of ammunition.”
Although Congress passed no new federal laws, several of the strongest gun-control states did pass new ones. This is what prompted Professor James Jacobs and Zoe Fuhr to ask what could be achieved by the passage of New York’s 2013 SAFE (Secure Ammunition and Firearms Enforcement) Act, which, according to New York Governor Andrew Cuomo, is “the toughest gun control law in the nation.” The book traces—in a very lively way—how the SAFE Act was drafted, passed, and signed in thirty days without any compromises. It then analyzes what each of the dozen of the Act’s initiatives achieved. These initiatives include universal background checks, tighter bans on assault weapons and ammunition feeders (magazines), mandatory reporting requirements for mental health professionals who encounter patients who present substantial risks of violence, gun license forfeiture for persons subject to domestic violence restraining orders, license renewal every five years, and numerous criminal offense and sentence enhancements for regulatory violations and gun crimes.
But the authors’ case study concludes that not much, if anything, has been achieved because the SAFE Act has not been effectively implemented and its provisions are easy to evade. The authors warn that gun control laws, like most laws, are not self-executing. Jacobs and Fuhr write: “Gun control proposals are usually promoted as if they are self-executing and self-enforcing,” but they are not. (P. 3). The New York legislature failed to provide more than token funding to implement and enforce the law. And there is no state level agency responsible for implementing and enforcing the law. In exposing the chasm between law on the books and law in action, this “gun control book” makes an excellent contribution to “sociology of law,” putting the reader in the mind of Murray Edelman and Stuart Scheingold.
Jacobs and Fuhr’s book provides a fascinating example of how gun control laws function to attract and energize political support. In effect, the SAFE Act is best understood as a “symbolic law,” not as a serious crime control initiative. As Franklin Zimring explains, in his Foreword to The Toughest Gun Control Law in the Nation, gun control laws are passed in blue (liberal Democrat) states, whereas red (conservative Republican) states pass laws reinforcing the rights of gun owners. Thus, where gun controls are easy to pass, they are often operationally redundant or marginal.
The Toughest Gun Control Law in the Nation led me to question why Europeans, such as myself, so easily believe that U.S. gun violence could be cured by passing more laws. In Spain, a would-be gun purchaser must obtain a license for a gun from the Guardia Civil. That involves stating a particular need, such as hunting, police work, or protection of self and property. The law is almost the same in New York, especially New York City. A New York City resident needs a license to possess a firearm and must pass a background check to purchase a firearm from a federally licensed dealer. And licensing authorities in both jurisdictions rarely approve applications. Few licenses are issued in Spain or New York City. But these regulatory controls can easily be avoided by purchasing a gun from a private party on the secondary market or on the black market. It is easy for a non-licensee to acquire a gun in New York. Maybe this is not so easy in Spain. If that is so, what accounts for this difference? How are European gun control laws effective in keeping guns out of the hands of dangerous persons? Probably the stringency of gun controls, and different cultures, explain the difference of the estimate of civilian firearms between Europe and the U.S.
In sum, The Toughest Gun Control Law in The Nation raises many challenging questions about the regulation of weapons and, more generally, about the promise and limits of law. Professor Jacobs’s and Fuhr’s research is a forerunner and raises relevant comparative research questions—When is gun control effective? What is the relation of guns with crimes? How active is the black market?—that European criminologists could find extremely important to research.
Dorothy Roberts’s Abolition Constitutionalism is a monumental achievement and certain to become required reading on prison abolition. With little hesitation in calling the U.S. prison state an extension of slavery, the article is thoroughly and unapologetically abolitionist. It eschews criminal justice reform to “improve” the system in favor of “nonreformist reforms—those measures that reduce the power of an oppressive system.” It makes the case that “new abolitionists” should instrumentally utilize constitutional arguments in their efforts to eliminate imprisonment. This radical article is the foreword to the Harvard Law Review’s 2018 Supreme Court Term issue. Yes, that Harvard Law Review. Yes, this Supreme Court.
Abolition Constitutionalism will doubtlessly have wide readership within the academy. I hope that it will also be widely read by nonacademics. Roberts writes accessibly and beautifully, and as evidenced by her meticulous citations, she has encyclopedic knowledge of the racial history of policing and punishment, the modern American prison abolition movement, and the Supreme Court jurisprudence on the reconstruction amendments. But, at 120 pages, the article is an undertaking for those unaccustomed to law reviews. Here, I offer a truncated overview in the hope of sparking even greater readership. I will pepper the overview with my impressions and analyze Roberts’s conclusion that “instrumental” constitutionalism is helpful to abolitionism.
The article begins with the most frequently asked question about prison abolitionism: What is it? Roberts traces new abolitionism to a 1998 Critical Resistance conference at Berkeley and adopts its concept of a “long-term political vision” toward ending the “prison industrial complex.” She outlines three main tenets of abolitionism: “First, today’s carceral punishment system can be traced back to slavery and the racial capitalist regime it relied on and sustained. Second, the expanding criminal punishment system functions to oppress black people and other politically marginalized groups in order to maintain a racial capitalist regime. Third, we can imagine and build a more humane and democratic society that no longer relies on caging people to meet human needs and solve social problems.”
Roberts’ historical analysis makes a compelling case that the American prison state was born of the desire to repress formerly enslaved persons—and all blacks—and has served its purpose well. Less clear is why this ignoble history necessitates jettisoning policing and punishment altogether, rather than reforming, and in some places strengthening, them. Roberts herself notes that “criminal law treats prisons as essential to prevent or redress crimes committed by economically and racially marginalized people but unnecessary to address even greater social harms inflicted by the wealthy and powerful.” A stark example is that, “after Emancipation, white southerners began ritualistically kidnapping and killing black people” with impunity. Current capital punishment studies demonstrate this legacy of impunity, as those who kill black victims are far less likely than those who kill whites to receive capital punishment. Why not make the system better for “marginalized people” while using it instrumentally to get at “the wealthy and powerful?”
Abolitionists’ answer lies in a distinction between instrumental and institutional analyses of the criminal apparatus. Indeed, I have previously queried why progressives respond to discrimination against black victims in capital punishment by calling for less punishment (abolition) rather than executing more killers-of-blacks, while at the same time, they respond to a perceived bias against female homicide victims by calling for more punishment (eliminating provocation and elevating manslaughters to murders). The answer, I asserted, is the tendency to view death sentencing as an inherently racist institution but prison sentencing as something that can be used instrumentally against privileged bad actors (woman-killers, racist cops). New abolitionists regard not just capital punishment but the entire criminal (in)justice system as an endemically pernicious, irredeemable institution. As Roberts puts it, “Efforts to fix the criminal punishment system to make it fairer or more inclusive are inadequate or even harmful because the system’s repressive outcomes don’t result from any systemic malfunction…. Therefore, reforms that correct problems perceived as aberrational flaws in the system only help to legitimize and strengthen its operation. Indeed, reforming prisons results in more prisons.”
The last sentence hints at a controversy in abolitionist theorizing. Abolitionists generally applaud efforts to dial back policing, lower sentences, and release prisoners. There is less consensus on “reform”—whether abolitionists can, for example, support New York’s plans to close Rikers Island and open several smaller more “humane” prisons or Texas’s plan to build a new prison ostensibly tailored to women’s (and mothers’) needs. Roberts does not, and need not, fully resolve such controversies. She seeks to show that constitutionalism can be of instrumental use to the abolitionist in the consensus effort to shrink the penal state.
Now, abolitionists critique the instrumental use of criminalization because such serves to legitimate an institution that should be dismantled. Couldn’t the same critique apply to constitutionalism? The constitutional legal apparatus was also forged in the fires of American slavery, and constitutional law has often served as an enemy of, or alternatively a poisoned gift to, racial justice advocates. Roberts faces head on the argument that “constitutional change within formal legal processes occurs only to maintain the look of legitimacy,” such that “the very project of abolition constitutionalism could be antiabolitionist.” Indeed, she lays out a detailed bill of particulars against constitutionalism as a viable path toward racial justice and eradicating the prison industrial complex, which includes the state action doctrine, standing, colorblindness, Adarand and reverse discrimination, McCleskey v. Kemp, Utah v. Streiff, and the list goes on.
What then redeems the institution of constitutional law enough for it to be used by abolitionists instrumentally? Roberts finds promise in two sources. The first is the Antebellum-era Republican’s radical argument that the text of the original constitution forbid human bondage of any sort, even if the Framers intended differently. She hopes that courts will adopt interpretations, like that of Randy Barnett, that this radical abolitionist view is embodied by Fourteenth Amendment, despite widespread “revisionist history.” The second source of hope is Justice Sotamayor, and more specifically, her dissents in cases like Streiff that draw a straight line between Jim Crow and modern policing. “Suppose,” Roberts muses, “a majority of Justices not only ruled in line with Justice Sotomayor’s dissenting opinions in Heien, Strieff, Husted, and Perez, but also applied this reasoning to other claims of constitutional violations in policing, surveillance, sentencing, and prison conditions? Such a series of Supreme Court decisions would deliver a tremendous blow to the prison industrial complex.”
But I do not suppose that will happen any more than I suppose that the fact that a Chicago officer gave a homeless man the boots off his feet last June portends a redemptive future of policing. I fear that constitutionalism will less likely take a Sotamayor-dissent turn than become an even more formidable opponent of prison abolitionism. In turn, the effort to “hold courts and legislators accountable to an abolitionist reading” of the constitution may be so much tilting at windmills. Worse, I worry about strengthening an institution that may be on the verge of Adarand-ing all kinds of constitutional rights—amplifying religious liberty rights to give cover to discrimination and reproductive oppression, minting new rights to life and property that interfere with states’ prerogatives on abortion and depolicing. In more paranoid moments, I worry about the return of Lochner as states make serious efforts to tackle wealth inequality. Perhaps abolitionists’ focus should be on building momentum outside the courts and insulating abolitionist programs from constitutional interference.
In the end, I may not see great promise in constitutional law as an instrument of prison abolition, but Roberts’s article has deeply enriched my understanding of both abolitionism and constitutionalism.