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Saving Harlem from Drugs: A Hobson’s Choice

Dr. Michael Javen Fortner’s book, Black Silent Majority: The Rockefeller Drug Laws and the Politics of Punishment, has ignited critical conversations in the academy and in public discourse. Among other things, the book describes a sort of “politics of respectability” within the black community and its impact on drug enforcement policy. The politics of respectability is a term coined twenty-five years ago by Professor Evelyn Brooks Higginbotham in Righteous Discontent to describe the social pressures by elite memb ers of the black community to ensure that other blacks were behaving respectably rather than affirming assumptions and stereotypes that the white community might have of blacks. Fortner’s book compels us to question the implications when, as is often the case in the African-American community, unelected social or religious leaders are assumed to represent the larger group. This is an important question for policy makers in the era of Black Lives Matter, a movement with a new model of diffused or unconventional leadership. Who should speak for whom? Black Silent Majority is a historical account of the role that a sub-group of African-American played in one of the most important socio-legal phenomena of the last half-century: the mass incarceration. In particular, Fortner explores how a privileged “silent majority” of black New Yorkers (preachers, politicians, businesspeople, the so-called “talented tenth,” and others) paved the way for the institution of draconian drug sentences.

To understand the ramifications of his argument, we must remember the cultural vibrancy of New York between 1920 and 1950. Harlem became a mecca of artistic, cultural and intellectual engagement during this period. This was the time of Langston Hughes, Duke Ellington, Zora Neale Hurston, and Josephine Baker. This renaissance was seeded by the great migration—the explosion of more than 6 million people to the North from the South in Harlem. Harlem – in this place and in this time – was as close to a capital of Black America as there could be.

With this in mind, contemplate this question: if this Harlem were on the brink of destruction, what measures should be taken to save its cultural, political, and intellectual fruits? This question is important because the Harlem that emerged between 1950 and 1980 was indeed on the verge of collapse. According to Fortner, much of what Harlem represented was at stake. The Depression of the 1930’s, followed by WWII and the Cold War, hit Harlem and its poor and working class folk as hard, maybe harder, than anywhere else. This Harlem was plagued by poverty, unemployment, organized crime and drugs. Fortner describes “the wreckage” of Harlem in chapter four in great detail. He depicts the struggle – moral and political – that the “Black Silent Majority” faced in watching the decline. The decline they observed was real and the desperation was palatable. Drugs and doping were viewed as the primal cause of the problem. Criminal scholars and sociologists know now the inadequacy of that assessment, with its sole focus on personal responsibility without a similarly rich account of structural problems (e.g., How did the dope get to Harlem?). But the black leaders did not seem to act with this understanding. They acted out of desperation and anger. In one chapter, Fortner movingly describes the anguish of a mother whose 18-year old daughter died of a drug overdose. Her response to the drug problem: “Kill the pushers.” (P. 179.) This view, that drug crimes warrant the most serious punishment, was spreading quickly. But desperation and anger were not the only factors in supporting the draconian drug laws. If we are to judge the decisions made by the “Black Silent Majority,” let’s fairly reconstruct the choices they had as they perceived them at the time.

The War on Drugs and the devastation it caused was relatively new. Poor communities have long dealt with the ravage caused by alcoholism and intoxication. The history of this on American soil goes back to the abuse and victimization of Native Americans. But the impact of dope – heroine and then cocaine – was viewed differently.

The progressive reform movement of the 1930s through 1950s — a movement focusing on rehabilitation for wrongdoers and drug users — had failed. Progressive rehabilitative prisons — supported by the Black Silent Majority — were part of the New Deal era thinking. New rehabilitate service-oriented vocational facilities were to be financed in part by the Works Progress Administration. The reformation experiment was premised on the notion that offenders could be educated and rehabilitated. Education, service and treatment programs were mainstays of the prisons and eventually were integrated in parole and release decisions. The reformers succeeded in championing a system, backed by legislation that was focused less on conservative concerns about coddling prisoners and more on liberal concerns about rehabilitation and re-entry.

So why didn’t the Black Silent Majority support rehabilitation and prison reform? They did, but by the 1970’s the reformist prisons had devolved into the maximum security, violent, highly racialized, resource-poor, over-crowded institution we have today. Rehabilitation as a legislative measure was no longer a political or realistic option. How then to save Harlem and the rest of the black community? Facing this Hobsons’ choice, the Black Silent Majority chose the Rockefeller drug laws and unduly harsh sentencing penalties. In retrospect, they were wrong to do so, but their options and resources were limited. Fortner’s contribution is a careful and meticulous account of the role they played. It would serve us well to consider also the realities of their motives and choices.

Cite as: Margareth Etienne, Saving Harlem from Drugs: A Hobson’s Choice, JOTWELL (August 14, 2017) (reviewing Michael Javen Fortner, Black Silent Majority: The Rockefeller Drug Laws and the Politics of Punishment (2015)),

The Causes of Punitiveness

Locking Up Our Own: Crime and Punishment in Black America is a look at the recent history of African-American attitudes toward crime. In many ways the book is a codicil to Michelle Alexander’s well-known work, The New Jim Crow: Mass Incarceration in the Age of the Age of Colorblindness, and to the writing of people like Glenn Loury and Ian Haney Lopez.  Alexander, Loury and Lopez argue that today’s hyper-incarceration and long sentences result from a white-dominated legal system bent on removing blacks from the streets, using the “war on drugs” as a cover, and imply that things would be different if blacks had been in control of the system. Locking Up Our Own contests those views.

Making Forman’s case is difficult, because largely white legislatures were and still are in charge of criminal justice in most jurisdictions. But Forman’s focus is on Washington, D.C., where, from the mid-1970s through the end of the twentieth century (the period covered by the first five chapters in his book) African-Americans were in power. Not only were that city’s chiefs of police black (as was the case in many major cities), but the municipal council—the body effectively in charge of crime definition and sentencing in D.C., given Congress’ acquiescence in matters of criminal justice—was usually majority African-American as well. Yet the criminal justice policies in that city were at least as punitive as those in other jurisdictions.

Forman demonstrates this point by cataloguing the city’s refusal to de-criminalize marijuana possession, its willingness to significantly enhance the penalties for drug possession and gun-usage-during-a-crime, and its acquiescence toward brutality and racial profiling by African-American police. Forman points out that these developments were fueled by exploding crime rates, drug epidemics, and the rise of gangs, ostensibly the same concerns that led to tough-on-crime policies elsewhere. He also notes that, as in other jurisdictions, the tougher policies were favored by the (black) middle and upper class, while visiting most of their impact on the poor. Black politicians and newspapers in D.C. decried the ravages of drugs on youth, with addiction to heroin, PCP and crack called the “new slavery.” They also bemoaned the huge spikes in violent crime (Forman notes that the spike in the 60s and 70s was the highest recorded in U.S. history), and the so-called “revolving door” of justice that led to quick release of criminals. The result was a black-led movement to expand criminal liability and increase sentencing maxima.

Forman is careful to point out that many D.C. policymakers also criticized the debilitating, criminogenic effects of racism and the need for addressing “root causes.” But they were usually unable to resist the quicker, more dramatic crime control solution. In part, Forman shows, that was due to strong public sentiment favoring that approach. For instance, in the early 1980s, the D.C. Council, bucking its typical tendencies and with the support of the federal government, refused to pass stiff mandatory minimum sentences for possession of drugs with intent to sell. Yet the public overwhelmingly voted for an initiative overriding the decision.

The overall picture Forman paints provides a counterweight to Alexander’s New Jim Crow story. Does he overdo it? Forman’s footnotes come from numerous primary sources (mostly newspapers and hearing transcripts). Where he can, Forman cites data from other cities that support his thesis. He notes, for instance, the strong support among the black community for the notorious Rockefeller drug laws in New York, and the widespread support among black police chiefs for law enforcement techniques like D.C.’s Operation Clean Sweep that resulted in one arrest for every 14 D.C. residents. He also emphasizes, and convincingly shows, the step-by-step, almost accidental manner in which our current highly punitive sentencing policies developed over a number of years, suggesting that hyper-incarceration is not part of a masterplan on the part of either whites or blacks.

At the same time, Forman stresses at several points that African-Americans are still imprisoned at a higher rate than whites, despite similar involvement with drugs, and that the structural causes of crime and drug influxes are intimately related to institutional racism. He also describes in some detail the impact of racial profiling, albeit by black as well as white cops. In this respect, his book differs from Michael Fortner’s recent publication, The Black Silent Majority: The Rockefeller Laws and the Politics of Punishment. While Fortner also documents vigorous black support for tough-on-crime policies during the 60s and 70s, particularly in New York, he is less attentive to the effects on criminal justice policy of white resistance to racial equality.

In the last chapter of the book Forman very briefly updates the story through the present. It turns out that in 2014 the D.C. Council passed the same type of marijuana decriminalization bill that foundered in 1975, at least in part because crime rates had dropped and the populace no longer associated marijuana use with violent crime. But Forman also criticizes the lack of willpower to reduce punitive responses toward more serious crime. Here and elsewhere he broaches the idea of treating drug- and gang-related crimes as a public health problem rather than a criminal one. One of the best lines in the book comes in his description of negotiations with a prosecutor who refused to grant leniency to one of Forman’s clients because the client had not responded well to treatment in the past. Forman replied, in effect, “Why don’t courts ever reject prison on the ground that it hasn’t worked in the past?”

I would have liked the final chapter to include more nuanced observations about the strategies policymakers could muster when confronted with the inevitable next crime wave and the resulting push for more imprisonment. But the lack of detail can be excused in part because, as Forman points out, just as mass incarceration occurred through many small steps, its rollback will probably only be accomplished in the same way. In providing a diagnosis of how we got where we are, Locking Up Our Own can help move us in the opposite direction.

Cite as: Christopher Slobogin, The Causes of Punitiveness, JOTWELL (July 17, 2017) (reviewing James Forman Jr., Locking Up Our Own: Crime and Punishment in Black America (2017)),

Color Coded Criminal Procedure— Exploring How Law Enables Racism, Disparate Treatment, Violence

Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 Cal. L. Rev. 125 (2017), available at SSRN.

Why is it so easy for police to kill Black people?

The answer to this question is urgent in light of ongoing police violence across the country. Virulent videos of Blacks subjected to police aggression have spread nationwide by phones, computers, TVs and tablets. These troubling, yet spectacular visuals, have pulled the covers back to allow mainstream America to see the dark and ruthless nature of law enforcement. Unarmed Blacks have senselessly died by strangling, tasing, and shooting in the back at the hands of police. Recently reported was an unarmed man shot despite his being on the ground with hands raised in surrender. Another was reportedly killed despite lawfully carrying a firearm. The ample proof of police wrongdoing raises alarming flags about the status quo, where police killing of Blacks is prevalent and successful prosecution of police is not.

In this article, Devon Carbado offers a compelling answer. He asserts that Fourth Amendment doctrine paves a path for police to engage civilians, especially Blacks, in ways that escalate into violence and death. Police officers are embodied with various levels of discretion in their enforcement efforts, and can be motivated by social motives, including cultural biases. Carbado shows, with meticulous detail, how Fourth Amendment doctrine leaves racism virtually unchecked in policing practices. Rulings by the Supreme Court on search and seizure make it clear that where police have a pretext to stop a person on the street or in a vehicle, the seizure is lawful so long as the officer has a requisite level of suspicion to make the stop. That there is little constitutionally to curb the police’s use of discretionary power when choosing one person over another puts a sarcastic twist on the meaning of “con” law.

The article’s central thesis is that the Fourth Amendment facilitates the ability of police ultimately to kill Black people. This doctrine has allowed unbridled racial profiling that forces baseless interactions between police and Blacks. Carbado writes, “The frequency of these engagements exposes African Americans not only to the violence of ongoing police surveillance, contact, and social control but also to the violence of serious bodily injury and death. Which is to say, Fourth Amendment law facilitates the space between stopping Black people and killing Black people.” (P. 125.)

The author begins by offering an overview of the problem of police killing of Blacks and Fourth Amendment jurisprudence. He provides an in-depth discussion of events in Ferguson, Missouri, which marshals statistical evidence of how Blacks were the recipients of a disproportionate number of front-end contacts with police, contacts that often serve as predicates for back-end police violence. The article then progresses to discussing how racially disproportionate policing is endemic elsewhere in the country and to exploring the claim that “African Americans often experience the Fourth Amendment as a system of surveillance, social control, and violence, [rather than] a constitutional boundary that protects from unreasonable searches and seizures.” (P. 130.)

The work demonstrates how a significant body of Court precedent renders African Americans vulnerable to repeated police interactions. To illustrate the groundwork that the Court has laid in this area, Carbado constructs hypotheticals that clearly show how police may conduct themselves without triggering Fourth Amendment protections for the individuals they survey and engage. The scenarios provide a piercing glimpse of how police can initiate a myriad of interactions that trigger suspicions that escalate into searches, arrests, police violence, or worse.

By exposing spaces where racial discrimination in policing may dwell, these hypotheticals cement Carbado’s argument and provide the reader with an excellent pedagogical piece. The hypos venture through a range of scenes, step by step, in a way that would benefit any law student learning to master the intricacies of search and seizure law. Yet this piece is written to be accessed by lay readers, community organizers, advocates, and policy-makers who fight for social justice. Taken wholly, these scenarios paint a visual of how “Fourth Amendment law underprotects [African Americans] and overprotects the police.” (P. 131.)

Carbado’s work stands as a multifaceted piece of scholarship that has widespread utility and appeal. The work is a creative and intelligent contribution to legal scholarship that lays out a critical frame for Fourth Amendment jurisprudence. Simultaneously, it is a valuable teaching tool for undergraduate, graduate, and law school courses, and has potential to teach far beyond the typical law review readership. As this work analyzes real-life situations in a simple fashion, it has a “Street Law” appeal that is certain to help educate the public. As such, this manual-like work will undoubtedly be useful to groups like Black Lives Matter, Color of Change, and others catalyzed by relentless police brutality.

Many will surely find this article to be a great intellectual support in the struggle for police reform. Carbado’s article is compelling, high-caliber scholarship that rises in opposition to the status quo. The content is of immediate benefit to all readers, particularly those seeking to understand their Constitutional rights against abusive and deadly police conduct. This work is an example of Ivory Tower knowledge created to benefit the public directly. Carbado successfully tells the story of how courts enable police oppression of minorities, and this effort is likely to garner plenty of street cred along the way.

Cite as: SpearIt, Color Coded Criminal Procedure— Exploring How Law Enables Racism, Disparate Treatment, Violence, JOTWELL (June 19, 2017) (reviewing Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 Cal. L. Rev. 125 (2017), available at SSRN),

How Local Police and Prosecutors Protect Immigrants

Ingrid V. Eagly, Immigrant Protective Policies in Criminal Justice, 95 Tex. L. Rev. 245 (2016), available at SSRN.

Local governments are increasingly taking the role of protectors in these fear-filled times for federal immigration policy. A popularly used term for this protective role of cities is sanctuaries. But what does giving sanctuary mean in the immigration and local law and policy context? What protections are arising?

One of my favorite empirical scholars working at the intersection of immigration and criminal justice, Professor Ingrid Eagly, set out to gather data on the policies of local police and prosecutors that protect immigrants. Professor Eagly’s empirical work is always illuminating because through her clinical work with clients, she has her fingers on the pulse of what matters right now for people in the trenches.  For example, she conducted the first national study documenting the dearth of representation by counsel among immigrants facing removal. She also conducted the first study of the impact of televideo proceedings to adjudicate the cases of people in immigration detention.

For her latest project, Professor Eagly used public records requests to obtain policies pertaining to immigrants from police, sheriff’s and prosecutors’ offices in four of the most populous counties of the most populous state in the nation: Alameda, Los Angeles, Santa Clara, and Ventura counties in California. These four counties offer a particularly powerful vantage point into immigrant-protective policies pioneered among local law enforcement because they are among the most immigrant-protective jurisdictions in the nation. Studying the approaches taken by the vanguard can help inform future developments as other jurisdictions try to forge their own policies.

It is also an important and illuminating research approach to examine departmental policies to shed light on law enforcement governance and internal practices. Police and prosecutor office policies play a critical and under-appreciated role in shaping institutional norms and filling in gaps and blind spots in the laws on the books. The policies also fill in the substance behind catchphrases such as “sanctuary city.”

Eagly’s textual analyses of the collected policies reveal variation across approaches but also three central types of immigrant-protective police and prosecutorial policies. The first cluster involves local police refraining from inquiring about immigration-related violations. The second involves prosecutors weighing the risk of deportation in their pleas and structuring charges to avoid triggering deportation. The third involves refusals to cooperate with federal requests that immigrants in jails be detained for immigration-related processing and deportation. Within each category, she classifies the different ways and contexts in which the local agency restricts collaboration with federal immigration authorities.

Judging by the volume of press calls on the issue, there is great public interest and confusion over how local governments are resisting federal immigration enforcement crackdowns. Professor Eagly’s taxonomy offers a valuable guide for the press and public as well as the academy. Her appendices are also an excellent aid, offering charts that compare key similarities and differences in the protections defined in the policies she gathered.

Finally, the article also offers important insights for policy-makers and activists charting the future of the state and local-government role in protecting immigrants. She notes that the three main rationales for immigrant-protective criminal justice policies to date tend to revolve around (1) community trust, (2) immigrant integration, and (3) reserving scarce resources for state and local priorities rather than working for the feds. She argues that while these are important justifications, they only capture part of the problem in need of redress. To these three rationales, she traces and develops a fourth norm in need of vindication, what she terms “immigrant equality.” By this she means addressing how immigrants are punished more harshly than citizens for the same crime. Two people commit the same crime.  One person gets prison and then probation.  Another person gets prison and then banned from the country he calls home. Is this just? If a community does not think so, what can it do about it? The article is thus both an excellent guide to our present and a guide to forging the future.

Cite as: Mary Fan, How Local Police and Prosecutors Protect Immigrants, JOTWELL (May 23, 2017) (reviewing Ingrid V. Eagly, Immigrant Protective Policies in Criminal Justice, 95 Tex. L. Rev. 245 (2016), available at SSRN),

The Sources of American Punitiveness

Joshua Kleinfeld, Two Cultures of Punishment, 68 Stanford L. Rev. 933 (2016).

In Two Cultures of Punishment, Professor Kleinfeld wades into one of the most debated subjects in criminal law and punishment and society: why have Europe and the United States–which began with so many similar penal values and practices at the end of the 18th century–begin the 21st century with such a wide divergence, especially when it comes to extreme punishments like Life Without Parole, capital punishment, and internal banishment through collateral consequences. This is territory in which some of the great scholars of punishment in our time, philosophers, historians, and sociologists have already spilled a lot of ink. To simplify somewhat, accounts tend to emphasize either culture embedded in history (James Whitman and Jeremy Waldron), political development rooted in institutions (David Garland and Nicola Lacey), or political economy (Loic Wacquant).

As an account of comparative European and US penal evolution, Kleinfeld has produced a productive original synthesis which combines many of the best features of historical, philosophical and political-institutional accounts. This synthesis, which has its deepest inspiration in the late 19th century theories of proto-sociologist Emile Durkheim, suggests that the US always had a different set of normative values rooted in its distinctive political economy. These differences, however, relatively latent in their effects on institutions until the “treatment effect” of rapidly rising violent crime rates in the 1960s–which remained high for much of the rest of the century–unlocked their potential to drive dramatic institutional change. (See Lisa Miller’s recent monograph, The Myth of Mob Rule (2016), which also treats rising violent crime rates as a significant driver of US penality in the late 20th century.) It has its weaknesses, one of which I will return to, but seen as a theory of late modern punishment and society trajectories it’s a major contribution which compels us to consider normative as well as social control explanations for extreme US penal practices.

In many respects, Kleinfeld’s central contribution in Two Cultures is not to explain European and US differences so much as to give them a philosophically informed interpretation. In short, American and European penal practices reflect very distinct but internally coherent ideas about the nature of crime, of people who commit crimes, and about the obligations of society and the state to those people. Kleinfeld suggests that the history of US/European differences can be told more cogently in terms of their very different responses to seven key ideas: immutability, devaluation, banishment, forfeiture, evil, dangerousness and dignity. Some of these ideas have their roots in religion, and others in modernist discourses like eugenics and social science, but Americans and Europeans respond to them very differently, thus the two cultures.

Dignity can serve as a summary for them all. Europeans, according to Kleinfeld have evolved a concept or value of human dignity in which basic rights of belonging inhere in the very humanity of people and thus cannot be forfeited. One only has to consider Norway’s treatment of mass murderer Anders Brevik, sentenced to 21 years for killing nearly 100 people and recently granted the opportunity to study for a university degree from his confinement. In his ground-breaking book, Harsh Justice (2003), James Whitman of Yale argued that America largely lacks a concept of dignity. Kleinfeld suggests that Americans do not lack a dignity idea, but instead have a different one, which he labels “democratic dignity.” If human dignity cannot be lost, democratic dignity can be lost rather easily, by any display of behavior or character trait that positions you as an enemy of the social peace and a betrayer of the social contract.

In my view the biggest weakness in Two Cultures is Kleinfeld’s failure to confront head on how much America’s history of slavery, colonial dispossession and anti-immigrant eugenic exclusion has shaped the construction of “democratic dignity”. To an important extent, these punitive and exclusionary features are not products of America’s democratic culture, but rather its deeply anti-democratic commitment to “whiteness as property” as Cheryl Harris brilliantly named it some years ago. To his credit, Professor Kleinfeld does not ignore the racial critique of American penality, but he seems to view it as an independent normative problem to the features he attributes to American democracy. Yet if we view “democratic dignity” as both democratic and racist in its construction we can question some of the causal significance Kleinfeld is inclined to give to violence. Are we really so different then Europe in having many more repeat or violent criminals? Or have we evolved racially normed institutions of social control that concentrate on the same populations generating the appearance of outsized recidivism rates? (See Elizabeth Hinton’s From the War on Poverty to the War on Crime (2016) for a plausible argument that concentrating on black inner city neighborhoods artificially raised the urban crime rate in the 1960s.)

Perhaps not surprisingly for a synthesis of sociology and philosophy undertaken by a criminal law scholar with a philosophical bent, the failings of Two Cultures lie in its historical and empirical sides. Fortunately, this a moment when superb scholarship on both is available (in addition to Hinton see recent books on mass incarceration by Mona Lynch (Hard Bargains: The Coercive Power of Drug Law in America’s Courts (2016)), John Pfaff (Locked In: The True Causes of Mass Incarceration — And How to Achieve Real Reform (2017)) and James Foreman (Locking Up Our Own: Crime and Punishment in Black America (2017)). Professor Kleinfeld is offering something relatively rare in contemporary legal academia: a jurisprudential methodology which can collaborate with the social science and humanities methodologies that often seem to dominate the criminal law field at this time. On this account, one which I also endorse, an important task of scholarship is to understand the ideas behind social practices and movements; not because they operate independently to shape the world, but because it is through understanding their conceptual nature that we can best trace their effects and displacements in the world. This is the sort of work that the philosopher and the historically informed interpretive sociologist or historian can do better working in collaboration then working separately.

Cite as: Jonathan Simon, The Sources of American Punitiveness, JOTWELL (May 9, 2017) (reviewing Joshua Kleinfeld, Two Cultures of Punishment, 68 Stanford L. Rev. 933 (2016)),

Dismantling Mass Incarceration

Michael Tonry, Making American Sentencing Just, Humane, and Effective, 46 Crime & Justice: A Review of Research (forthcoming 2017), available at SSRN.

The US incarcerates a greater percentage of its people than any other country in the world—by a wide margin. Even though we have heard the statistics enough to have become inured, they still manage to shock us: more than 2 million people are behind bars and more than 5 million more live under the daily supervision of the criminal justice (on parole, probation, etc.). There have been some promising events in recent years: bi-partisan Congressional support for sentencing reform, though still no enacted legislation; state voter referendums such as California’s Proposition 47 that roll back sentences for low-level non-violent offenses; former Attorney General Holder’s directives on federal charging; both the liberal Soros Foundation and the conservative Koch Industries are funding sentencing reform initiatives.

But still, as Michael Tonry argues in his detailed and sobering policy article, these reforms are mere “nibbles at the edges” of mass incarceration and will not make a significant difference in our outrageously high prison rates. While prison rates have dipped, much of that decline is not because of meaningful sentencing reform, but rather because of the U.S. Supreme Court decision in Brown v. Plata requiring California to release 35,000 prisoners to remedy overcrowding.

Tonry argues that meaningful change in incarceration numbers requires a rollback of the policies that got us there. Furthermore, to muster the political will to make this change, reformers should base their arguments in morality, rather than in efficiency and economics. It is unjust to incarcerate people for lengthy periods of time that are wildly disproportionate to any harm they caused or are likely to cause. Tonry notes

No one should be surprised that normative arguments trump instrumental ones. The proposition that punishments should be harsher because that will better acknowledge victims’ suffering is a normative claim about what is due victims. The proposition that violent or repeat offenders have forfeited any rights to have their interest considered is a normative claim about appropriate consequences of wrongful behavior. The proposition that laws that punish minor offenses disproportionately severely are unjustifiable is a normative claim about unjust punishment. The proposition that laws that punish minority offenders unduly severely are unjustifiable is a normative claim about social justice. The proposition that no punishment should be so severe that it ignores possibilities of redemption is a normative claim about human dignity. The proposition that just sentencing systems must be individualized to take account of the details of offenses and the characteristics and culpability of individual offenders is a normative claim about punitive justice. (P. 13.)

Instrumentalist arguments don’t work. “Given a choice between doing what seems morally right and doing something else, most people prefer the morally satisfying choice, even if it cost more.” (P. 13.) And normative claims can make a difference.   Tonry cites examples where normative (moral) claims trumped, for example, the research of Lawrence Bobo and Victor Thompson that whites’ support for federal law that punished crack cocaine offenses much more severely than for powder cocaine offenses “plummeted when they learned about its disproportionate effects on black offenders.” (P. 13.) (But see my caveat below.)

Tonry reviews the well documented evidence that longer prison sentences do not create a significant deterrence effect. Indeed, there is evidence that imprisonment is criminogenic. Long prison sentences cannot be justified on incapacitation grounds, either. For some kinds of offending, incarceration merely opens up an opportunity for someone else. This “replacement effect” is particularly true for drug crimes, where economic disadvantages and the risk-taking attitudes of youth result in a steady stream of would-be entrepreneurs. Furthermore, most crime is committed by young people and most people age-out of criminal offending. With draconian sentencing laws, people stay in prison long past the date at which they pose a risk of reoffending. Finally, long prison sentences cannot be justified because “rehabilitation doesn’t work.” Tonry notes that recent research demonstrates that “well-designed, well-targeted, well-resourced, and well-run treatment programs can modestly reduce later offending.” (P. 22.)

Tonry provides a step-by-step guide for the changes in sentencing that are required to make a meaningful change in incarceration going forward. He then describes what is necessary to “unwind” current levels of incarceration. He sets as his prison population goal: “the total national rate for federal and state prisons and local jails should be reduced by 2020 to the mid-1980s level of approximately 350 per 100,000 and by 2030 to the 1973 rate of 160 per 100,000.” (P. 24.)

To change incarceration rates going forward, Tonry argues for changes in policing and prosecutor charging decisions and for legislative changes in sentencing.

Prosecutors and police should create systems for informal disposition and/or treatment options for low-level offenses. Furthermore, they should create structured programs for many criminal cases that allow defendants to avoid incarceration by paying fines, participate in mediation, make restitution, or perform community service.

Legislatures should repeal “[a]ll three-strikes, mandatory minimum sentence, life without parole, truth-in-sentencing, and comparable laws.” (P. 37.) If any of these laws are retained, they should be narrowed in scope and severity. Life without parole (LWOP), if retained, should only be applied in death penalty cases. Also on the chopping block should be repeat offender statutes that sweep in a broad range of priors, including non-violent ones, and result in extraordinary sentences of 10, 20, or more years of additional imprisonment. Truth in sentencing laws that require offenders to complete 85% of their sentence before they are eligible for parole should be repealed.   Lengthy sentences are not justifiable both because they are inhumane and wildly disproportionate to the harms committed, but also because people change over time. Not only do they “age-out” of certain kinds of offending, notably violent offending, but “cognitive skills, self-control, drug dependence, and employment skills are `dynamic.’ They can be changed….” (P. 34.) Young people mature. People reinvent themselves.

In addition to getting rid of these draconian sentencing laws, legislatures should : 1) create state sentencing commissions charged with creating presumptive sentencing guidelines; 2) create state parole boards and parole guidelines; 3) sub-categorize offenses according to their seriousness and create sanctions that reflect these gradations; 4) provide clear criteria for the imposition of sentences that are more severe than are authorized for ordinary cases and require, per the U.S. Supreme Court’s holding in Blakely v. Washington, that the extraordinary conduct that justifies the sentence be proven beyond a reasonable doubt; 5) and defendants should be able to appeal a sentence on the basis that it is disproportionately severe or unreasonable.

Tonry additionally argues that statutory provisions should limit the weight given to prior criminal history in determining sentences. (Tonry notes that Scandinavian countries, for example, consider prior criminal history irrelevant to imposing a sentence for most crimes.) Contrary to popular understanding, most of those sent to prison for the first time do not reoffend. Furthermore, a significant portion of those who do reoffend are guilty of property and drug crimes. These offenders are often troubled, mentally ill or drug dependent. Prior criminal histories are one of the significant drivers of racial disparity, so removing these enhancers will likely to have a positive impact on racial fairness.

To make a meaningful dent in current incarceration rates will require large scale interventions. Tonry notes that other countries have employed amnesties or mass pardons, but he rejects this approach as unlikely to be politically viable in the US.   Small scale versions, based on case-by-case reviews are unlikely to have a significant effect.   He concludes that what is required is that parole boards or specially created administrative agencies should be given the authority to consider the need for the continuing confinement after five years for all prisoners serving fixed terms longer than five years, or indeterminate terms, who are under the age of 35 years, and that the same review should take place after three years of imprisonment for all prisoners 35 years of age or older.

Unwinding mass incarceration will take a coordinated effort with simultaneous moves on several fronts. Tonry’s article sets out a significant part of what is required and has the added virtue of presenting a concrete, well-supported legislative blue print. It is enormously clear and helpful.

In addition, Tonry’s urging that supporters base their claims in moral values rather than in utility arguments strikes me as exactly right. Legislatures and the general public have been unmoved by the enormous cost of the prison buildup. Most of the support for the legislation that created mass incarceration has been what Tonry refers to as “pre-rational,” that is, based on emotion and believes in narratives that had little basis in fact.   Narratives that illustrate the unfairness and the harms of mass incarceration or that tell redemptive stories of changed lives are likely to be more effective. Tonry’s message echoes that of the National Academy of Science 2014 report which concludes with a plea for a return to normative principles of proportionality, parsimony, social justice, and citizenship. (Tonry served on the Committee that authored the Report.)

And this is where I hit the one limitation of Tonry’s otherwise wonderful article. A great deal of research demonstrates that the politics of race and implicit race bias, particularly against African Americans, played a significant role in the buildup of what Beth Richie (2012) refers to as “prison nation” (see also Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness). (There is a rich body of scholarship, both legal and scientific, on the importance of racial bias – both overt and implicit – to outcomes in policing, judging, conviction, sentencing, re-entry, and prisoner treatment.) A recent Marquette Law School poll underscores the continuing importance of racial bias as a major impediment to reform (O’Hear & Wheelock 2016). The poll found that racial attitudes were a significant predictor of respondents’ belief in the value of rehabilitation. Those who believed that African-Americans are held back by the historical legacy of slavery and discrimination were much more likely to agree with statements endorsing rehabilitation for criminal offenders than were respondents who agreed with statements such as –

It’s really a matter of some people not trying hard enough; if African-Americans would only try harder they could be just as well off as whites (O’Hear & Wheelock at 50).

In addition, while Republicans were more skeptical of rehabilitation when compared to Democrats, this difference fell away when racial attitudes were statistically controlled for. In other words, what drove the political party affiliation difference were racial attitudes. When racial attitudes were controlled for, Republican affiliation became a positive predictor for support for rehabilitation.

The cultural reality that links African Americans with criminality presents both an additional challenge as well as an additional urgency to Tonry’s claims about the importance of reformers centering their arguments in morality.

Cite as: Donna Coker, Dismantling Mass Incarceration, JOTWELL (April 3, 2017) (reviewing Michael Tonry, Making American Sentencing Just, Humane, and Effective, 46 Crime & Justice: A Review of Research (forthcoming 2017), available at SSRN),

How Can We Resist? Suppression of Evidence and the Limits of State Coercion

Back in the heady days after Mapp imposed the exclusionary rule on the states, Yale Kamisar made a prescient pronouncement: once the rule is framed as a way to deter police misconduct, instead of a way to preserve the integrity of the judicial system and its verdict, the fourth amendment loses. The benefits of deterring the police always seem to pale in comparison to the need to convict wrongdoers. And once the rule is tied to predicting police behavior, the situations in which courts predict the police will actually be deterred become fewer and fewer. And, ironically, once the rule is framed as a limit on the police in particular, it begins to feel very unfair to single the police out for criticism. Alice Ristroph argues that the erosion of the exclusionary rule can be traced to a larger problem: the misguided notion that regulating the police is the primary focus of the fourth, fifth and sixth amendments.

One important focus of criminal procedure scholarship over the last several years has been the inadequacy of constitutional litigation as a tool for regulating police. Ristroph takes up the inverse question: why should police regulation be the main focus of constitutional criminal procedure? She argues that the amendments limiting investigatory power were never meant to focus on the police in isolation (indeed, when the amendments were adopted, professional police forces as we know them today did not even exist). Instead, they are meant to enforce individual rights against government overreach.

As Ristroph points out, state coercion is typically more complex than the actions of a single government agent—or agency. To separate policing from prosecution from adjudication from punishment serves to artificially atomize an interconnected course of governmental conduct. She argues that the main goal of the fourth, fifth and sixth amendments is to regulate the whole chain of events that may land a defendant in prison. The goal is to ensure that convictions satisfy the conditions for imposing punishment—only one of which is guilt.

Especially valuable is Ristroph’s reminder that constitutional litigation, though not the best venue for top-down reform, serves important goals of its own—and that the regime of suppression motions can be celebrated for its strengths even as we acknowledge its limits. Motions to suppress evidence in case after case may be a clunky and inefficient way to facilitate reform. But they do provide a forum to individuals who wish to challenge state coercion, and who generally have few others avenues for protest—and to do with the assistance of a lawyer. They do, even when unsuccessful, impel judges to consider and articulate publicly the reasons supporting their rulings.

In short, Ristroph celebrates the assertion of fourth, fifth and sixth amendment rights as a form of resistance to power. The shift of emphasis to a resistance rationale is not mere window dressing. One of the most dispiriting trends in this jurisprudence is the Supreme Court’s refusal to credit the coercion inherent in state-citizen encounters. As Ristroph says, “across the doctrines of seizures, consent searches, and waivers of rights at interrogation, we see the Court contemplating resistance, and foreclosing as much of it as possible.” To assert the right to resist unlawful action without crossing the line (legally or psychologically) and provoking serious consequences is an increasingly delicate and perilous task. She would welcome changes in consent law and other doctrines to better reflect the imbalance of power. But more important, she advocates a more robust debate about the proper balance between state power and individual resistance.

Cite as: Susan Bandes, How Can We Resist? Suppression of Evidence and the Limits of State Coercion, JOTWELL (February 28, 2017) (reviewing Alice Ristroph, Regulation or Resistance? A Counter-Narrative of Constitutional Criminal Procedure, 95 B.U. L. Rev. 1555 (2015)),

Criminal Law’s Borders

When a sanction as massive and punitive as deportation is triggered by a criminal sentence, it is all but inevitable that the system responsible for processing and administering the criminal sentence will be transformed by its proximity to this substantial “collateral” effect. Mona Lynch’s Backpacking the Border: The Intersection of Drug and Immigration Prosecutions in a High Volume U.S. Court, provides new and important insights into the nature and degree of this transformative effect. In her Backpacking article, she illustrates how drug prosecutions in one high-volume U.S. district court along the southern border have ceased to be driven by the presumptive goal of deterring and punishing drug crimes at all; instead, they operate almost entirely in the service of migration control objectives. “[I]mmigration policy has become so criminalized here that the immigrant status rather than criminal status of the defendants in drug cases drives the adjudicatory logics and practices.” (P. 5.)

Lynch’s article is the product of a comparative qualitative field research study that she conducted in four federal district court jurisdictions around the United States. She conducted in-depth interviews and engaged in direct observation of court proceedings, “supplemented by analysis of social artifacts and secondary source data.” (P. 5.) Her particular interest was finding out how drug cases are selected and adjudicated in the federal court system, and her focus was on legal process rather than legal outcomes. By analyzing four distinct jurisdictions, she hoped to see how local courtroom actors in distinct contexts “conceptualize and shape outcomes.” Id. This particular paper draws from her work in “the Southwestern district,” which is one of the highest-volume federal district courts in the country, which has a caseload of primarily drug and immigration crimes. While she noted local variations in all four of the districts she studied, “all three of the non-border districts had modes of adjudicating cases that bore resemblance to each other and that diverged considerably from” the southwestern border district that she studied. (P. 6.)

In other districts, drug dealing was the trigger for federal intervention, including in cases involving small, street-level distribution—cases that might seem like better fits for state courts. In her two more urban districts, “those targeted for prosecution have primarily been young men of color who come from select highly policed minority neighborhoods. Even the rural district has had episodes of low-level drug law enforcement sweeps headed up by multi-jurisdictional task forces.” (P. 6.) In all three districts, prosecution is animated by a stated desire to take aim at drug trafficking offenses. “[D]rug cases were drug cases.” (P. 6.)

In contrast, in the southwestern district, drug cases were immigration cases. And there were lots of them. The district she studied processed nearly 6,600 non-petty criminal convictions in 2014, and 87% of those were for immigration or drug crimes. (P. 7.) Eighty percent of those convicted are foreign nationals. Lynch describes two possible routes to adjudication in this high-volume setting: mass-processing and individualized adjudication. In the mass-processed mode, defendants generally are charged with a “mixed complaint” that includes felony and misdemeanor charges. The defendant is offered a deal that will allow him to plead to the lesser charge with a sentence of less than 360 days in exchange for a guilty plea and waiver of sentencing procedures. Those who decline are individually processed and misdemeanor plea opportunities are taken off the table. Id. Lynch’s article provides a textured discussion of the workings of “flip flop” court in this district, (Pp. 9-11) as well as the individualized sentencing model that is used in the alternative. (Pp. 11-13.) 

Given the patterns in other districts, one might expect that the misdemeanor plea options would be extended in cases involving individuals carrying small amount of drugs for apparent personal use. It almost certainly would not apply to individuals carrying up to 100 kilograms of marijuana across the border. Those individuals fit into the drug trafficking frame that appears likely to trigger federal felony prosecution in the other districts Lynch studied. But over the period from 2012 through 2013, the U.S. Attorneys in the southwestern district set a ceiling on the number of backpacking cases that could be processed as felonies, meaning that many such cases are sent to flip flop court, and a “backpacker” with up to 100 kilos of marijuana could be prosecuted as a misdemeanant. As Lynch tells us, “these defendants become part of a mass of unauthorized border-crossers who happened to be carrying backpacks of marijuana, and the imperative driving their criminal adjudication is swift and efficient resolution to get them out of the system and out of the country.” (P. 9.) Processing and sentencing in their cases (generally resulting in sentences between 60 and 240 days) were largely indistinguishable from the processing and sentencing of non-backpackers charged with misdemeanor illegal entry, who generally received sentences of around 180 days. The fast-track processing of drug offenses has generated a huge spike of drug convictions in the district. “This district’s possession convictions, alone, accounted for 83 per cent of the nation’s federal drug possession convictions.” (P. 9.)

Those who proceed to individualized sentencing, either because they refuse to take the misdemeanor plea or are not given that option, experience more traditional criminal processes, including full sentencing proceedings. This is true for both drug couriers and for individuals charged with felony illegal re-entry (as opposed to first-time entry misdemeanants.) Lynch provides detailed accounts about how those cases are processed and about the fast-track sentences that defendants typically receive in both kinds of cases. She observes that “the ironic effect of the sorting process in this system, in that for both sets of defendants—the drug couriers and the illegal re-entrants—the more rooted they had been in the United States portends a much more punitive response.” (P. 14.) Family and community ties become a reason to give harsher sentences, purportedly in order to better deter, rather than a reason to treat a defendant less harshly. Or as Lynch concisely puts it, “assimilation, which should mitigate treatment by the court, is indeed an aggravator.” (P. 17.) The system shows little interest in individual equities, and instead focuses on creating efficient territorial exclusion through criminal adjudication.

In one notable section of the paper, Lynch writes about two individualized “fast-track” plea adjudications she observed. The first was for a middle-aged returning migrant charged with an enhanced felony re-entry charge—enhanced because of a prior record of removal for an aggravated felony. The sentencing guidelines range for the offense was 57-71 months, and the prosecutor sought 42 months, largely because the defendant’s family ties generated a risk that he would “re-offend” by trying to return to them. The defendant was ultimately sentenced to 54 months plus three years “supervised release,” although it was all but inevitable that he would be deported before serving the supervision period. The second case involved a drug courier who also had a prior history of drug offenses. The sentencing guidelines range was 188-235 months (130-162 months for fast-track). Both prosecutor and defense counsel expressed concern at the extreme length of the sentence. The judge sentenced him to 63 months on the new conviction, and six months to be served consecutively for the violation of the conditions of a previous sentence. The judges added a term of four years supervised release to follow the incarceration. As Lynch observes, “the defendant’s past record in the United States set the stage for the present in the form of a sentence more than 11 times longer than his peer backpackers. And it once again paved a new future whereby any further official encounter in the United States would expose [the defendant] to the potential of life in prison.” (P. 16.) Notably, there is little difference in the sentences of the drug offender and the felony reentry defendant. The central focus in both cases was on establishing the triggering conditions for harsh future consequences for illegal re-entry.

Lynch’s conclusion harkens back to a prediction made by Anil Kalhan over a decade ago that what we are seeing is not so much the criminalization of immigration as an “immigrationization” of other laws and legal practices.1 Indeed, Lynch uses that very term to describe what has happened to adjudication in the southern border district. (P.17.) The central logic of all southern border prosecution is to deter the return of excludable outsiders—and this is true whether there are drugs involved or not, and whether the individual has strong ties to our community or not. Sentences are structured to foster particular immigration consequences that will be triggered by return and “the creative use of supervised release terms for defendants who will never likely be released on U.S. soil hammers home the system’s goal of deterring reentry.” (P.17.) In flip flop adjudications, processes and sentences for all defendants looked essentially the same regardless of the presence or absence of drugs, and the only people who are, in fact, treated differently are those who resist pleading guilty. The compelling reasons that drive people to migrate and commit other offenses are obscured as individuals are efficiently processed.

For the past twenty years in the United States, scholars working at the intersection of criminal law and immigration law have documented the effects that two substantial bodies of law—criminal law and immigration law—have on one another as they are drawn substantially and unevenly into each others’ orbits. The back-end collateral sanction of deportation (or “removal” to use the technical term) has an impact on whether and how criminal procedural protections operate in the context of policing, both on the streets and in the jails.2 It can influence county officials’ bail determinations and decision-making about access to diversionary programs.3 It can constrain and reshape plea negotiations, ultimately setting the stage for differential punishment.4 It can incentivize new forms of criminal prosecutions.5 It may help to explain the significant citizenship penalty in criminal sentencing.6

Lynch now shows us that immigration logic can completely displace the logic of the substantive criminal law at issue in a criminal proceeding. This does indeed look like the “immigrationization” of criminal procedure. But perhaps it is not uniquely emblematic of “crimmigration.” It appears of a piece with the streamlined administration of punishment that is occurring across legal domains in the adjudication of the rights of liminal legal subjects, where punishment is deployed as little more than an efficient method of managing racialized populations deemed risky.7 Backpacking the Border gives a vivid sense of the new frontier, where the criminal justice system is used to manage the perceived risks posed by human beings deemed unwanted or undesirable.

  1. Immigration Enforcement and Federalism After September 11, Remarks at Symposium on Immigration, Integration, and Human Security Issues Post-9/11 in Comparative Perspective, Fondation Nationale des Sciences Politiques, Paris, France, June 9, 2006. Kalhan has highlighted the increasing salience of immigration status across legal contexts in a variety of later works. See, e.g., Anil Kalhan, Immigration Surveillance, 74 Maryland L. Rev. 1, 64-70. (2014). []
  2. See, e.g., Jennifer M. Chacón, A Diversion of Attention? Immigration Courts and the Adjudication of Fourth and Fifth Amendment Rights, 59 Duke L.J. 1563, 1607 (2010) [hereinafter Chacón, A Diversion] (contesting the sufficiency of the legal incentive structure to check excesses in policing of immigrant communities). []
  3. Ingrid V. Eagly, Criminal Justice for Noncitizens: An Analysis of Variation in Local Enforcement, 88 N.Y.U. L. Rev. 1126, 1129–31 (2013). []
  4. Indeed, the Supreme Court has suggested that it should be a central consideration in plea bargaining. “By bringing deportation consequences into this process, the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties.” Padilla v. Kentucky, 559 U.S. 356, 373 (2010). []
  5. See, e.g., Jennifer M. Chacón, Tensions and Trade-offs: Protecting Trafficking Victims in the Era of Immigration Enforcement, 158 U. Pa. L. Rev. 1609 (2010) (identifying state human trafficking prosecutions as state-level immigration control efforts); Ingrid V. Eagly, Local Immigration Prosecution: A Study of Arizona Before SB 1070, 58 UCLA L. Rev. 1749 (2011) (identity alien smuggling prosecutions as state-level immigration control efforts). []
  6. On the citizenship penality, see Michael T. Light, et al., Citizenship and Punishment: The Salience of National Membership in U.S. Criminal Courts, 79 Am. Soc. Rev. 825 (2014). []
  7. Jennifer M. Chacón, Producing Liminal Legality, 92 Denver L. Rev. (forthcoming 2016), available at SSRN. []
Cite as: Jennifer Chacon, Criminal Law’s Borders, JOTWELL (January 26, 2017) (reviewing Mona Lynch, Backpacking the Border: The Intersection of Drug and Immigration Prosecutions in a High Volume U.S. Court, 57 Brit. J. Criminol. 112 (2015)),

Im-be-ciles: The Supreme Court, American Eugenics and the Sterilisation of Carrie Buck

Adam Cohen, Imbeciles (2016).

Adam Cohen has written an exhaustive account of the nexus between eugenics, racism and immigration law in the United States. Against the backdrop of the Carrie Buck case, a young, poor Catholic woman, sentenced to a colony for folks categorized as morons, imbeciles and the feebleminded, Cohen provides a stark reminder of the complicity of the Courts, scientists and policy makers in the devolvement of equality and due process for persons labeled undesirable. He reminds us that in the 19th Century “undesirable” was pinned to women who were working poor, Catholic, and not of Anglo (British) origin. These women were segregated from society until aging out of childbearing or were sterilized against their will.

The case of Buck v Bell stains not only the early history of Progressives, adherents to eugenics, but the legacy of Oliver Wendell Holmes who opined, “Three generations of imbeciles are enough,” as he upheld the forced sterilization of women. With the stroke of a pen, countless women were housed in segregated colonies, sterilized and branded for life as the result of an accident of birth and social caste.

Using the power of storytelling, Cohen peels back the layers of ethnic cleansing, which sought to purge the population of children born to women who were not part of the upper class–a class defined not only by economics, ethnicity and religion. Whilst not erecting a Wall, Congress passed legislation that first limited and then attempted to prevent the immigration of Italians and Jews from Eastern Europe; the limitation was extended to all emigres from Southern Europe.

In the 1930’s the nascent National Socialist Party sent a delegation to the U.S. to learn the mechanics of ethnic cleansing which they perfected during the start of the Holocaust. Indeed, we learn that during the Nuremberg Trials, the Nazis cited the eugenics program in America as model for the Third Reich campaign to genetically promote the “Aryan Race.”

Cohen makes clear that the eugenics movement was aimed at Caucasians thought to be genetically inferior and was supported and promoted by Northern progressives, intellectuals and professionals. Various iterations of ethnic cleansing took hold from marriage laws and practices which restricted marriage of persons who were “undesirable,” to Immigrations Laws from 1924 which increased immigration from Northern European countries while closing the door to those from Eastern and Southern Europe, to forced sterilization of young women who failed to match the profile of upper class Protestant women with ethnic roots in Northern Europe.

This book is fascinating especially in light of the language of the 2016 election. Cohen reminds that conceptions of ethnic and racial desirability were not confined to “racial” characteristics. Rather, such categories were and are a movable object. In 19th Century America objectionable and unfavorable ethnicities tracked Southern/Eastern European ancestry, while in the 21st Century the category applies to Latina, Muslim and African American.

While reading Imbeciles, I was reminded of the forced sterilizations in New York City of Latina and African American women who were on public assistance. Without their knowledge, doctors tied their tubes when they went into the hospital to give birth to their children. In 2013, 150 women were sterilized in California. The political rhetoric of the 21st Century reminds us that the Racial Integrity Act of 1924, the statute which prohibited “race mixing” and gave us Loving v. Virginia, resonates still with politicians, policy makers and junk scientists who believe that ethnic and racial cleansing is about “protecting America.”

Imbeciles is a fascinating read; it is a must read for anyone who teaches law or is an advocate for social change. It is a troubling testament to the French saying–Plus ça change, plus c’est la même chose.

Cite as: Kris Miccio, Im-be-ciles: The Supreme Court, American Eugenics and the Sterilisation of Carrie Buck, JOTWELL (December 7, 2016) (reviewing Adam Cohen, Imbeciles (2016)),

Rendering the Community, and the Constitution, Incomprehensible Through Police Training

The Supreme Court has increasingly relied upon the concepts of professionalism and police training when regulating police conduct under the Fourth Amendment. For the most part, however, academic interest in how the police are trained to select, encounter, seize, and search individuals on the street has remained anemic. Even the recent scholarship on implicit bias training is primarily oriented towards prescribing rather than reviewing current practices. Nancy Marcus’s article is a welcome antidote to this large gap in our legal knowledge.

Police training plays an important role in current Fourth Amendment doctrine. Since the early 1980s, the Supreme Court has engaged in the continuous, albeit intermittent, deregulation of policing. That deregulation consists in replacing external, judicial scrutiny of lots of police activity on the street with the internal review of subordinates by superior officers in each the many hundreds of police departments around the country. The Court’s deregulatory jurisprudence, which often centers around attacks on the exclusionary rule and its underlying rationale, reached its apogee in the 2006 case, Hudson v. Michigan. In Hudson, Justice Scalia, writing for the majority, insisted that:

we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been wide-ranging reforms in the education, training, and supervision of police officers.…Numerous sources are now available to teach officers and their supervisors what is required of them under this Court’s cases, how to respect constitutional guarantees in various situations, and how to craft an effective regime for internal discipline.

Unfortunately, Justice Scalia relied on a single sentence in a single page in a single source for his evidence of training reform. Anyone who has studied—or tried to study—police training knows how disingenuous the Court’s statement was: police training is almost as fragmented as policing itself. Marcus’s article goes further: she demonstrates just how wrong Justice Scalia was to assume that police training tracks the Fourth Amendment’s demands.

Marcus argues that police training substitutes various heuristics for the text of the Fourth Amendment. These heuristics imperfectly track Fourth Amendment doctrine and obscure its rationale. She makes this important argument by focusing on one aspect of police training that has gained wide currency across a number of jurisdictions: the 21-foot rule. That rule holds that “lethal force may, and should, be used when a target is within twenty-one feet of the officer.” It states a blanket permission to kill based on one circumstance only: proximity. Treating proximity as an entitlement to shoot fails to track the spirit, rationale, or letter of Fourth Amendment jurisprudence surrounding deadly force.

Marcus also demonstrates how police training materials also ignore what Rachel Harmon has called the “social costs” of policing to the public that is policed. Policing, even in its most benign form, imposes hardships on the people stopped, searched, and interrogated on the street or in the station house. Police encounters are scary, stressful, time-consuming, and sometimes violent and destructive. Leaving this perspective out of training may increase the sense among police officers that compliance with their directives are costless, and that members of the public who refuse to comply are malicious.

Marcus demonstrates that nationally disseminated police training materials, when they do mention the relevant law, often adopt the officer’s perspective in ways that render the civilian’s perspective incomprehensible to the police. Indeed, it is worse than that: members of the public, in asserting their rights under the Fourth Amendment, may render themselves liable to be the targets of police violence. The fault lies, Marcus argues, in police training, which systematically under-emphasizes Fourth Amendment rights and over-emphasizes the permission to use force, including deadly force, to effect seizures of recalcitrant civilians.

The 21-foot rule helps explain why. The police are trained to become hyper-defensive when members of the public are within the specified circumference. Police materials that discuss the rule may not mention the Supreme Court guidance that the rule is supposed to summarize. When police materials do mention the Court’s jurisprudence, they eliminate those parts of it that present the civilian’s perspective. Thus, in lieu of training in the constitutional limits on deadly force, the police are more often presented with a simple heuristic: that they are permitted to shoot anyone who appears threatening or challenges them within that danger zone. The problem with policing is thus not a few bad apples, but a structural orientation of the police towards the use of force and to civilian obligations to comply of face that force.

It is worth emphasizing that much of the Court’s Fourth Amendment doctrine both permits and requires civilians to resist the police if they are to assert their rights. In practice, civilians must attempt to leave, decline consent to search, or refuse to speak, if they are to avoid police intrusions. Ideally, such acts of low-level resistance empower civilians as members of the political community and check police activity. So long as the civilian is not seized by the police, she is often entitled to walk or even (in more limited circumstances) run away from the police—what Marcus calls the “right to flee”—and the police have no right to stop her. For many police officers, Marcus argues, their training makes these types of resistance incomprehensible at the same time as justifying the all-too-casual deployment of deadly force to bring the non-compliant civilian to heel.

In short, Marcus’s article reveals that the assumptions animating the Court’s deregulatory jurisprudence are fundamentally mistaken. Police training on some fundamental aspects of constitutional doctrine relies on crude but widely used heuristics that supplant the sort of instruction necessary ensure a deep understanding of the Constitution or its requirements. And she persuasively argues that at least one of these heuristics, the 21-foot rule, has a deadly impact on the street.

Cite as: Eric J. Miller, Rendering the Community, and the Constitution, Incomprehensible Through Police Training, JOTWELL (November 10, 2016) (reviewing Nancy C. Marcus, Out of Breath and Down to the Wire: A Call for Constitution-Focused Police Reform, 59 Howard L. J. 5 (2015)),