The search for the precursors to contemporary mass incarceration in the U.S. has become one of the great legal, historical, and sociological debates of our times. Many of us have focused on two particular arcs of penal history in tracing the genealogy of mass incarceration. One is associated with the birth of the penitentiary and the police in the first third of the 19th century in the context of emerging capitalism (both slavery and free labor in the U.S.). From this perspective, mass incarceration has always been a part of the DNA of America’s form of racial capitalism. The other locates the genesis much closer to our own time in the political and economic crises of the late 20th century associated with the neoliberal transformation of the U.S. economy.
Laura Appleman’s article, Deviancy, Dependency and Disability, makes a convincing case for adding a third arc of history: one that focuses on the eugenic period of the early and mid 20th century as a crucial precursor for mass incarceration and that offers a comprehensive treatment of the eugenic influence on criminal justice policy and what she calls its “long tail.” Eugenics refers specifically to efforts to improve society by regulating births, but it also applies to a much broader range of policies influenced by core beliefs that many of the worst social problems facing America could be solved by segregating, sterilizing, or even eliminating the physically, mentally, and morally disabled. Appleman’s article builds on recent work of historians which has underscored the radical nature of America’s embrace of eugenic thinking and its enduring significance in fields like immigration, drug and alcohol policy, and criminal statistics.
The influence of eugenics on criminal justice was direct and indirect. Directly, eugenics served alongside positivist criminology as a scientific anchor of the so-called “Progressive” era expansions of the carceral state through juvenile justice, probation, and other individualizing mechanisms that determined penal severity by individual traits, especially race. Thus, the punishment of crime became a mechanism for achieving a negative eugenic goal of segregating the dangerous. These mechanisms became important sources of hyper punishment, especially of young Black men, during the build up of mass incarceration. Ironically, we still think of them as oriented toward helping people leave the carceral state, and many contemporary reform ideas are perhaps dangerously lodged there.
Perhaps even more important, and less noted, is the indirect influence that Laura Appleman points to. During this period, pre-existing asylums for people suffering mental illnesses (which had existed since the early 19th century) were greatly expanded and overcrowded with people classified mostly as “feebleminded” (an imprecise term for those considered intellectually disabled). In the eyes of eugenicists, the feebleminded were not simply intellectually limited (itself a dubious proposition given then contemporary measurement standards) but doubly dangerous in their criminality and their promiscuity. Since their traits were understood to be inheritable, the physical segregation of the feebleminded provided a double benefit against crime and other problems. Thus, in the first years of the 20th century, there were more than 10 times as many individuals held in institutions for the mentally ill and disabled as were incarcerated in federal and state prisons.
In short, mass eugenic incarceration of the disabled in the early 20th century established the basic commitment to using institutions of confinement to achieve the eugenic aim of reducing crime and social problems in American society in a manner unrestrained by traditional legal concerns with legality and culpability. While eugenics as a social policy was discredited, its influence on criminal justice thinking was never redressed. When America entered a new phase of punitive expansion in the late 1970s, prison became the dominant custodial response to an institutionalized understanding of the criminal threat that extended well beyond the boundaries of legal guilt. As I read Appleman’s argument, this is not a claim of simple transcarceration (the people once warehoused in asylums are now in prison) but that an unbroken link to eugenic thinking in our criminal justice policies keeps social policies and institutions fixated on incapacitating those othered by physical or mental difference, disability, queerness, or racialization.
In the second part of her article, Appleman connects this earlier history to the better known modern history of deinstitutionalization and the failure of community care initiatives after the Supreme Court’s due process decisions of the 1970s accelerated the closing of public mental hospitals. While many appreciate the relevance of deinstitutionalization to modern mass incarceration, few connect it to the earlier embrace of eugenics. It is not an accident that our criminal justice system selects for disability; it is the very mark of its eugenic origins. Meanwhile, this highly vulnerable population has been packed into overcrowded prisons that seem almost organizationally incapable of delivering adequate care.
Harder to understand, but crucial to disabling this complex, is why, lacking the powerful but now largely abandoned scientific theories of eugenics regarding the centrality of inheritable traits (an argument that has never entirely gone away but is now marginal), this eugenic merging of disability and crime has been able to stay coherent. Is it largely the way the various organs of the carceral state reproduce the priorities, if not the specific propositional claims, of eugenics (focus on minorities, substance abusers, etc.)? What role is the law itself playing in holding this ensemble together? Hopefully, these questions will be taken up by scholars focusing on the middle of the 20th century.
Laura Appleman provides us with some hopeful directions for thinking about how to combat the role of this long tail of eugenics. One important implication is the centrality of disabilities to the construction of the carceral state and the historical pattern of excluding and incarcerating people living with disabilities rather than facilitating integration. Asserting the rights of the disabled provides one way to battle for better prisons. Appleman also argues that screening out people with disabilities—at the earliest stages of the criminal process—would avoid a great deal of cruelty while enabling large savings on projected prison health care costs. Diversion programs are certainly necessary, but if the long tail of eugenics is also the framing together of crime and disability into a spiral of causation that exaggerates the danger of each (and the severity of the repressive response), then it may not be sufficient. We may need to go beyond diversion to build common strategies of decarceration across different institutions.
Appleman suggests appreciating the growing convergence between prisons and nursing homes. Prisons are becoming nursing homes for an aging prison population, as a growing number of people living outside prisons with severe physical disabilities join the very old in the nation’s growing body of nursing homes; a new kind of mass incarceration. (P. 458.) Rejecting and uprooting the long tail of eugenics, and its ensemble of stigmatized subjects and exclusionary practices, might require a commitment to abandoning segregation as a goal altogether, whether in criminal justice or in health care delivery.
Cite as: Jonathan Simon, The Long Tail of Eugenics
(November 5, 2019) (reviewing Laura I. Appleman, Deviancy, Dependency, and Disability: The Forgotten History of Eugenics and Mass
Incarceration, 68 Duke L. J.
417 (2018)), https://crim.jotwell.com/the-long-tail-of-eugenics/
If you were asked to design a DNA database to help solve crimes in a democratic society, what features would you include? Legislative debate about the desirability of such a database would be a start. Whether such a DNA database would be justified by a cost-benefit analysis, with all potentially affected constituents having had a voice in the process might be another consideration. Appropriations for this hypothetical database might be conditioned on regulations intended to safeguard against abuse, to protect civil liberties, and to avoid scientific errors. And the mass collection of DNA presumably would not continue without clear evidence of its public safety benefits.
The District Attorney in Orange County, California has maintained its own DNA database since 2007. And it exhibits none of these features, as Andrea Roth’s article demonstrates. While there has been some journalistic and scholarly attention to the Orange County District Attorney’s (OCDA) database, Professor Roth’s work is the first to rely upon original field research, including court observations, public records disclosures, and interviews with all kinds of people familiar with the program, including affected defendants. The piece is remarkable and fascinating, both in its particulars, and what it can tell us about the dangers of other programs that may bear resemblances to it.
First, something on the specifics. For more than a decade, a local prosecutor’s office in California has offered those accused of low level offenses a deal: give us your DNA in exchange for a plea to lesser charges or a dismissal of charges entirely. Many defendants agree to what appears to be a standard practice in the county, and the result is that the OCDA now holds the DNA of 150,000 people—permanently. No legislature has authorized it. And it is paid for largely by private funds (including the seventy-five dollars defendants fork over for processing their own samples).
Like the nation’s linked network of databases known as “CODIS,” the OCDA database also contains DNA profiles for criminal investigation purposes. But the similarities end there. As Roth explains, the OCDA database is the largest non-legislatively created DNA database in the country. Opaque prosecutorial decision-making led it its construction, drives its growth, and helps maintain an operation “largely in the shadows.” (P. 448.)
Roth aptly describes the creation and maintenance of the OCDA database as the work of “surveillance entrepreneurs.” These local prosecutors have been allowed to engage in a vast experiment of genetic surveillance that extends beyond their typical expertise or powers. Indeed, it is hard to imagine that a legislature would be able to justify such a program like the OCDA DNA database: populated largely with low-risk offenders, heavily reliant on private fees, likely influenced by private interests, and amassed without any clear sense of public safety benefit.
In this way, we can draw connections between Roth’s concerns and those highlighted by other criminal justice scholars about how technological advances, private interests, and the withering of traditional accountability mechanisms are raising alarms in areas ranging from bail determinations, street policing, and criminal defense. Surveillance entrepreneurs, as we learn in this important piece, represent one more threat to democratic values in a rapidly changing justice system.
In The Punishment is the Process, Malcolm Feeley famously documented that in New Haven, Connecticut’s low-level criminal courts, pretrial detention, and its impact on work and family responsibilities, drove plea bargains. In Prosecuting Poverty, Criminalizing Care, Professor Wendy Bach demonstrates that, in Eastern Tennessee’s low-level problem solving court, the threat of pretrial detention may drive access to opioid treatment through “diversion” into drug courts.
Problem-solving courts, including drug courts, are one of the fundamental innovations in criminal justice over the past quarter of a century. These courts purport to change the behavior of offenders by providing intensive supervision and treatment for non-violent offenders whose offending derives from particular social, medical, or psychological causes. Their distinctive approach depends upon the claim that the criminal justice system must respond to the problem of drug addiction, as well as their non-custodial, inter-disciplinary, team-oriented and court-centered model of continuous judicial monitoring.
One reason for the popularity of problem-solving courts is that they provide an opportunity for the criminal justice system to monitor the provision of drug treatment services both directly and intensively. These courts thus enable a sentencing judge to retain control over the process of recovery, rather than simply receiving periodic reports from defense counsel or probation services. The promise of direct supervision and control has proved especially attractive for dealing with drug addicts, who frequently relapse, cycle through courtrooms, and clog up dockets, but who often present a low risk of harm to others.
If the features of problem-solving courts are, by now, relatively familiar, the politics of problem-solving justice remains somewhat opaque. There has been little research discussing the interaction between the substantive criminal law and problem-solving courts. It is at this point that Professor Bach’s research steps in to fill the void, with a study that is both theoretically sophisticated and empirically rich.
The problem-solving model of intensive supervision, Professor Bach reveals, has proven particularly attractive for Tennessee lawmakers seeking to provide some fix for the opioid crisis. In particular, Tennessee prosecutors identified as particularly troubling the number of babies born with Neonatal Abstinence Syndrome, suffering withdrawal symptoms from drugs prenatally ingested by their mothers. Professor Bach persuasively reveals that a major justification for a new law targeting drug addicted pregnant women for criminal prosecution for the crime of fetal assault upon the birth of their children was the availability of problem-solving courts as a core justification for the law. The legislature created the crime of fetal assault to require treatment, but through the criminal justice system rather than an alternative to it.
Professor Bach’s article breaks new ground in the problem-solving paradigm. It builds on prior work showing that the problem-solving courts do not divert from the criminal justice system, or really seek to ameliorate the impact of the criminal justice system. Instead, she suggests that the courts have gone along with generating a new criminal law—or at least operate in the same justificatory space as those criminal laws.
Her study of the Tennessee fetal assault statute shows that problem-solving justice does not simply preserve existing sanctions but is compatible with creating new substantive crimes. Bach’s study fits with the actions of those problem-solving judges who challenged California Propositions 36 and 47 or Ohio Issue 1 (which sought to decriminalize drug possession) as undermining the power of these courts to impose jail time as a form of therapeutic sanction. In California and Ohio, problem-solving judges sought to maintain the penal status quo, rather than accede to new limits on drug criminalization. In Tennessee, problem-solving courts went along with legislators who sought to expand the criminal justice system. Rather than simply fighting a negative or rearguard action to prevent changes in the law (and in the law of sanctions at that), Tennessee problem-solving justice embrace the positive creation of new, substantive criminal law to drive new clients into their courts. Whilst this is not the whole story that Professor Bach tells, it is a novel and important insight.
The politics of problem-solving punishment and criminalization is shocking, but not surprising. Shocking, because the rhetoric of problem-solving justice presents itself as an oppositional alternative to mass incarceration. Not surprising because, soon after the creation of drug courts, judges and academics pointed to their “net-widening” effect: they increased, rather than decreased, contacts with the criminal justice system. Professor Bach has identified a special and insidious type of net-widening: creating new offenses with drug courts in mind.
I believe that the problem-solving court intervention produces an important psychological and political effect for the officials that staff these courts. The intensive, persistent judicial supervision of offenders enables the judge (and other officials) to treat isolated, individualized, episodic successes as representative of systemic criminal justice reform. These isolated successes mask systemic injustice in the way the state uses the criminal justice system to target and control specific communities. One way they do so is by viewing addiction treatment as the business of criminal supervision, with the threat of punishment regarded as a necessary tool of treatment success.
By emphasizing criminality as caused by individualized, micro-social behavioral problems, the court, and in particular, the judge, addresses herself to the rehabilitation of discrete offenders, one at a time. This atomistic approach gives disproportionate attention to the success of individualized offenders, rather than the operation of the program as a whole. The judge becomes dependent upon the individualized, personal success of the offenders appearing before her to mask her participation in a systemically unjust criminal justice system. The success of discrete participants enables the judge to redirect the concept of evidence-based outcomes from the program or the group, to the success individual clients.
Some of that injustice is revealed through the problem-solving courts’ attitudes towards punishment and criminalization as an alternative to medical treatment. Given the limited provision of opioid treatment through the public healthcare system, the Tennessee criminal justice system has colonized the provision of treatment by its ability to prioritize the criminal justice route to accessing limited sources of opioid care. Punishment provides access to scarce treatment resources. On the other hand, state reporting requirements place pregnant women at-risk of criminal charges. Seeking treatment for drug addiction renders poor, rural, pregnant women vulnerable to punishment.
Crucially, Professor Bach demonstrates that punishment and treatment are not alternative modes of intervention, but are strongly linked in the minds of lawmakers and prosecutors. In the new regime of punishment-and-treatment, punishment is internal to treatment. Punishment is the form that treatment takes when treatment is conceived of as behavior-modification for irresponsible mothers. The goal is a form of “responsibilization” (to use a term coined by criminologist David Garland) in which the offender not only alters her behavior, but is made responsible for effecting that change by being held personally accountable for it. Punishment becomes the method of prodding the vulnerable addict to change her ways. Stripped of its negative consequences, punishment-and-treatment becomes a necessary boon to judges and lawmakers seeking to “help” and “treat” addicted individuals.
There are plenty of other interesting insights in Professor Bach’s article, not least in her linking of criminal justice, healthcare, and social services; or in her recognition that the criminal justice system uses indigent, addicted women to pay for its services in deeply problematic ways. Indeed, her research fits within some of the recent work done on the ways poor women are targeted for criminalization by police and prosecutors based on their gender. For anyone wishing to understand the insidious world of problem-solving justice, her article is essential reading.
Chaz Arnett, From Decarceration to E-Carceration
, 41 Cardozo L. Rev.
___ (forthcoming, 2019), available at SSRN
Almost six months ago, best-selling author and legal scholar Michelle Alexander wrote for the New York Times in reference to electronic monitoring devices used in the criminal process: If the goal is to end mass incarceration and mass criminalization, digital prisons are not the answer. But why not? States are increasingly considering alternatives to incarceration, including electronic monitoring, as a means to reduce the economic and social pressures of the phenomenon of mass incarceration. The notable and bipartisan First Step Act passed by Congress in December 2018 encourages further use of electronic monitoring devices in the federal system. Why not embrace this ever-improving technology to reduce the deleterious effects of this phenomenon? Indeed, many Americans believe electronic monitoring can and should be a part of the solution.
Chaz Arnett’s powerful article, From Decarceration to E-Carceration, forthcoming in the Cardozo Law Review, argues to the contrary. He asserts that the expansion of electronic monitoring devices in community corrections threatens to entrench the most deleterious effects of mass incarceration – its operation as a mechanism of social stratification and racialized marginalization–without reducing the expanding footprint of the carceral state. Because his novel contribution reframes how we engage with the introduction of technologies as criminal justice reform, this is a must-read piece for those interested in resolving the problems of mass incarceration in the United States.
Electronic monitoring is emerging as a staple intervention at various points in criminal justice administration, including juvenile justice, adult pretrial detention, and adult post-conviction punishment. Electronic monitoring is not new; states have used radio frequency monitoring for decades as a part of community corrections. However, recent advances in technological infrastructure in society along with growing momentum for criminal justice reform more broadly make the devices appealing for state and local criminal justice administrators to use as an alternative to incarceration. After decades of increasing reliance on incarceration, these devices appear a key component of “decarceration” efforts meant to decrease reliance on prisons and local jails.
Arnett’s article lays out the shortcomings of current debates about electronic monitoring in correctional systems across the United States. From a legal perspective, electronic monitoring currently evades critical constitutional and legal frameworks that limit the state’s ability to control its constituents. Arnett highlights how courts struggle to respond to issues raised by use of electronic monitoring devices through the Fourth Amendment, juvenile law and policy, and adult corrections laws. Though not the first to identify such issues, his broad overview is unique in its emphasis on states’ jurisprudence. It highlights that electronic monitoring devices do not easily fit within existing legal frameworks.
From a policy perspective, Arnett suggests that ongoing debates fail to fully grasp the implications of electronic monitoring as well. Three key justifications bolster device expansion: the promise of successful reentry, the promise of cost savings, and the promise of increased public safety. Arnett complicates each of these benefits. While there are studies suggesting that electronic monitoring is more effective in reducing recidivism and increasing public safety, numerous studies suggest no impact as well. Moreover, claims of cost savings overlook how embracing these devices passes burdensome costs to the most marginalized and economically strapped defendants and their families. Finally, electronic monitoring may prevent an individual’s ability to reintegrate into society in the long term. Though defendants are released into the community, use of an electronic monitoring device is often accompanied by onerous conditions that may promote a cycle of surveillance and incarceration. As example, he notes common geographic restrictions that prevent those on electronic monitoring from gaining access to employment or connecting with family or other support networks. In short, the policy benefits of electronic monitoring as correctional reform are far more ambivalent than current debates acknowledge.
Arnett’s article truly sings when he explains how this technological reform may deepen social stratification endemic to the phenomenon of mass incarceration. He illuminates how electronic monitoring is a form of surveillance and surveillance operates as a mechanism of social stratification. It encourages those who are most marginalized from society to persistently avoid public resources like school, health services, and transportation. Unfortunately, lack of access to such resources operates as a barrier to reintegration and long-term disentanglement from the criminal justice system. That surveillance’s harm is most concentrated on marginalized communities ensures that this technological reform will likely exacerbate the carceral state’s racialized effect, too. From a perspective that places reintegration and rehabilitation as central to reform efforts, electronic monitoring may have an opposite effect that at best leaves mass incarceration untouched, and at worst expands its reach.
To be sure, electronic monitoring is not the only cog in this apparent shift toward “e-carceration.” Technological interventions are popular components of many criminal justice reforms at the moment. But technological interventions can distract from deeper structural problems that have as much to do with the expansion of the carceral state as growth in prisons. Worse still, as I have explained elsewhere, it can redefine what we think is right or wrong about mass incarceration all together. To the extent that Arnett engages with electronic monitoring as a solution rather than a problem, his intervention does not go far enough. In particular, his call for more transparency in the adoption of electronic monitoring devices feels unnecessarily pragmatic. It is not clear that empowering people to cope with adoption of the devices democratically can resolve the ambivalent impact devices present sociologically. Arnett is on surer ground when he encourages investment in job training and reentry services in lieu of investment in electronic monitoring devices.
Still, Arnett’s socio-legal critique is a much-needed addition to the literature on technologically-driven criminal justice reforms. By emphasizing how electronic monitoring debates can overlook a bigger picture in criminal justice, Arnett’s article embraces a refreshing approach to this reform. Along the way, he invites any reader to think twice about adopting electronic monitoring as part of a solution to phenomenon of mass incarceration. While there is no “one way” to resolve the dilemmas of mass incarceration, the routes we choose will shape society more broadly. In this sense Arnett’s article illuminates how e-carceration poses a separate question from reducing reliance on incarceration worthy of independent consideration and critique.
Jeffrey Bellin, Fourth Amendment Textualism
, __ Mich. L. Rev.
__ (forthcoming, 2019), available at SSRN
In Fourth Amendment Textualism, Professor Bellin tackles an age-old question: what is a search? His article takes a deep dive into the text of the Fourth Amendment, how the Supreme Court has interpreted it, and how he would like the Court to return back to the original meaning.
While this paper brings forward a thought-provoking analysis of the Fourth Amendment, it also has the ability to teach the reader about current search and seizure jurisprudence. The article provides students of the constitution familiarity with what a search is and how the Supreme Court has arrived at its current thinking, while at the same time, opening up a slight rift in the common and unshakeable understanding of that familiar terrain.
Bellin’s main contention is that the reasonable expectation of privacy test created in Katz is far too attenuated from the text of the Fourth Amendment and carries too much indeterminacy. This test requires a person to have both an actual and reasonable expectation of privacy in the thing searched. Bellin also attempts to nip in the bud the newly created “trespassory” test from Jones and Jardines. He describes this trespass analysis as in its “infancy” and more “as a complement to, rather than a replacement for, the Katz test [.]” (P. 10 n.49.)
He argues that it is time for interpreters of this Amendment to come back to a simpler understanding and proposes a new test for courts to determine if a search occurred. This textualist interpretation would replace Katz, trespassory searches, third party doctrine, and standing. His test is basically two steps: was there an actual search and was the search of the individual’s person, house, paper, or effect. While this test at first blush appears to follow Justice Scalia’s thinking, in actuality Professor Bellin seems to have combined both textualism and legal realism (i.e., Posner).
In order for a person to have standing in an unlawful search, they must have had both an actual expectation of privacy (subjective) and a reasonable expectation of privacy (objective). This new test, according to the author, was a radical departure from previous understandings of the Fourth Amendment, which generally hinged around the actual words in the amendment and particularly focused on the term “search.” The author believes that this test is “abstracting to a principle underlying the Fourth Amendment (privacy) and then applying that principle rather than the amendment’s text.” (P. 23.) He further argues that the Katz test and its reasonable expectation of privacy requirement is a circular argument because the “privacy we can reasonably expect depends on the privacy the Supreme Court tells us we have.” (P. 24.)
So what is one to do about this allegedly circular reasoning and ambiguous test? The author proposes a simple two (or three?) step process of simplifying what a search is. First, while he appreciates the pre-Katz era for focusing on actual searches and not privacy, he makes it known that those cases never succinctly defined what a search actually was. This could be beneficial because now the author is able to not only define it carte blanch, but also mold it with our technological advances in mind. Essentially, the author believes a search is an examination of an object or space in an attempt to uncover information. His definition is comprehensive yet straightforward. In this paper he parses through these key words – to provide the reader a clear guide as to what a search is. (P. 30.)
The second step is critical. It is not enough that the government committed a search – it is what they searched that matters. Professor Bellin states that the Fourth Amendment is only triggered if “the item searched can fairly be characterized as a person, house, paper or effect. This reflects the text and history of the Fourth Amendment.” (P. 34.) Each of these “things” are defined both by their history and also in a modern view. The author makes an important distinction that “[t]he terms ‘persons, houses, papers, and effects’ are listed in the Fourth Amendment as potential objects of searches: things the police might search. These terms are not search outcomes: things police might find.” (P. 35.) This second step focuses on the actual thing searched and determines if it belonged to the person.
An example that he highlights is that public surveillance cameras are not a search of a person because they have not searched that person but rather have searched the public area and located them. On the other hand, using an infrared camera to look for illicit objects would be a search of that person. The more difficult to interpret term is “effects.” But again, the author uses both the Framer’s understanding of that word (personal objects during that time) with a modern twist (computers, cell phones). Thus effects are all movable, personal property. What are not effects? Intangible objects such as cell phone signals.
The one area where the author and current Fourth Amendment law seem to agree is the third-party doctrine and standing; the author agrees with the Court’s conclusion that these are personal rights. However, they diverge in the analysis. In current Fourth Amendment jurisprudence, a person has standing if they have that reasonable expectation of privacy. This analysis is derived from Katz. On the other hand, the textualist believes that standing comes from the actual words of the Amendment, specifically the phrase the “right of the people to be secure in their…” Under the textualist analysis, the court need not focus on whether or not the person had a reasonable expectation of privacy in the thing searched, but rather was the thing searched his person, paper, house or effect? While this seems to present a clear and straightforward question for a court, it begs the question, how does a court determine if that thing is the person’s? Does the court ask if that person had a reasonable expectation of privacy?
The textualist would also apply this reasoning to Carpenter. In this case, the Court narrowly held that a person has a reasonable expectation of privacy in the data transmitted to a third party (cell phone carrier) and thus a warrant is needed to search that information. However, under a textualist perspective, the reasoning would be different – yes there was a search, and yes these were papers, but unfortunately for the defendant, these were not his papers and thus no standing is granted to him. The author seems to make the distinction between information and papers. Carpenter’s cell phone was data (information) within the carrier’s papers, so it was not protected. However, if a court were to consider his cell phone data not as information but more concretely as “papers” then it would have been protected even though a third party possessed those papers. (A question that will surely be begged: what is the difference between a text message and other cell phone data?)
Thus, the third party doctrine of any Fourth Amendment analysis should not focus on a reasonable expectation of privacy by the person, but solely on whether or not the object/thing was “theirs.”
The paper also goes through several examples to illustrate how a textualist interpretation would apply to modern day scenarios. The author acknowledges that these are only a limited number of examples, as well as that there is never going to be an easy, all-encompassing interpretation of the Fourth Amendment that foresees every situation that could arise.
When a reader hears the word textualism, the late Supreme Court Justice Antonin Scalia quickly comes to mind. However, this textualist idea seems to be influenced in part by Judge Richard Posner – look to the text, follow the original meaning, yet provide for flexibility and practicality. Whether you agree or disagree with the new test that Professor Bellin puts forward, this paper provides the reader with a strong understanding of where our current Fourth Amendment jurisprudence stands. It is also evident that the reasonable expectation of privacy test created in Katz is likely on life support. A quick perusal of the dissenting opinions in Carpenter illustrate some justice’s disdain and dissatisfaction with the test and their desire to follow a textualist approach. A flip in the Court might finally pull the plug.
A number of books and articles have taken aim at America’s mass incarceration debacle. Smart Decarceration, a multi-author edited volume, assumes that the tide has turned. As the editors point out in the first chapter, several states have begun depopulating their prisons, eliminating mandatory minima, and creating more alternatives to prison, a movement sometimes dubbed “Smart Sentencing.” Smart Decarceration is about the sequel. Authored by academics with degrees in criminology, sociology, history, public health and social work, as well as by leaders in community organization, practicing lawyers, pastors, and formerly incarcerated individuals, this book is devoted to picturing what optimal decarceration should look like.
The diverse perspectives provided in Smart Decarceration ensure a nuanced, multi-disciplinary treatment of that issue. But there is also an overriding agenda, perhaps best summarized by Kathryn Bocanegra in her chapter, when she states that “exclusively focusing on reducing prison populations without considering the sustainability of such an effort is potentially dangerous.” (P. 115.)
The first step in realizing a sustainable decarceration movement is to carry out prison population reduction in a meaningful, politically feasible fashion. Nazgol Ghandnoosh notes that while the decarceration trend in the United States began in 2010, “the pace of contraction has been slow: a total decline of 3% by 2014”; she concludes that, at that rate, it will take until 2101 for the prison population to return to its 1980 level. (P. 139.) She proposes an upper limit of 20 years on all sentences, and a professionalized parole process that focuses on risk assessment. In support of this regime, Ghandnoosh states, “[L]ong sentences have little deterrent effect and keep many people imprisoned after they pose little risk to public safety. They not only waste the lives and damage the spirts of the people serving these sentences, they also impede public investments in effective crime prevention, drug treatment, and other rehabilitative programs that promote healthier and safer communities.” (P. 153.)
These themes are echoed by several other authors. Ernest Drucker calls for a public health approach to decarceration. Borrowing from the prevention model of health care, he discusses primary, secondary and tertiary means of reducing entry into jails and prisons, ensuring that incarceration does not exacerbate recidivism, and pursuing environmental and other changes that minimize incentives for ex-prisoners to reoffend. Two other chapters, each by multiple authors, recommend that the decisions about entry and release should be aided by actuarial-based risk assessment and risk management tools, if steps are taken to enhance their accuracy and transparency, and if they are used primarily as a mechanism for decreasing sentences and fitting rehabilitation programs to the individual needs of the offender. These types of changes can assuage public fears that shortened prison terms will unleash hordes of dangerous criminals, at the same time they provide offenders with the best opportunity to succeed.
Several other chapters focus on re-entry, which arguably is the single most important decarceration issue, given the huge numbers of offenders who are released (about 600,000 per year, P. 103). The editors, along with Annie Grier, point out in one of their chapters the obvious disconnect between the desire to ensure that released prisoners make a smooth transition into civilian life and the huge number of civil disabilities they face, including ineligibility for housing, food stamps, student loans, professional licensure, certain forms of employment and voting and parental rights. As they note, “addressing criminogenic needs entails increasing access to many life domains, including education, employment, housing, and social life; however, civil disability policies actually exclude access to many of these same domains.” (P. 167.)
Other chapters describe innovative programs for ex-offenders, most of which take advantage of currently under-leveraged resources in the community, ranging from colleges, universities and local businesses to church-, family- and systems-oriented interventions. Particularly noteworthy here is the chapter by two prosecutors, John Chisholm and Jeffrey Altenburg, which describes a host of initiatives in Milwaukee that rely heavily on data and that involve early intervention programs, community prosecution units, community justice councils, “Intelligence Led Prosecution” (focused on high risk offenders), and reinvestment projects. The fact that prosecutors can get on board with these types of efforts makes one cautiously optimistic about the decarceration movement.
Perhaps most distinctive about the book is the inclusion of chapters from formerly incarcerated individuals. Ronald Simpson-Bey, who spent 27 years in prison, asserts that “Those closest to the problems are closest to the solutions.” (P. 55.) His chapter and that of Glenn Martin, another ex-prisoner, detail the impediments they faced after release. But the primary focus of both chapters is to push for heavy involvement of such individuals in leadership positions, not only with respect to the design and implementation of re-entry programs and release-decision-making practices, but also in the manner in which police and prosecutors carry out their roles.
The last chapter, written by the editors and Samuel Taylor and Annie Grier, helpfully summarizes many of the key points. Smart Decarceration is a rich resource for those who want to think through the next steps in criminal justice reform.
- Stephen Rushin, Police Disciplinary Appeals, 167 U. Pa. L. Rev. __ (forthcoming, 2019), available at SSRN.
- Dhammika Dharmapala, Richard H. McAdams, and John Rappaport, Collective Bargaining and Police Misconduct, available at SSRN.
While riding with officers, conducting interviews and coding policies for my forthcoming book, Camera Power: Proof, Policing, Privacy and Audiovisual Big Data, I was struck by the influence of police unions—or lack of a strong union—in shaping body camera recording policies and limits on using the video to evaluate and discipline officers. Delving into the literature on police unions, I was impressed to read the work of prolific professors using innovative methods to systematically collect and analyze data on the influence of police unions. I would like to spotlight two recent important empirical studies on police unions.
Analyzing a large dataset of police union contracts, Stephen Rushin’s latest article illuminates how collectively bargained protections in the police disciplinary appeals process can impede efforts to address potentially problematic officers. The findings are particularly disturbing and compelling when read in conjunction with an important new study by Dhammika Dharmapala>, Richard H. McAdams and John Rappaport. This dream team of interdisciplinary scholars offers the first quasi-experimental evidence that conferring collective bargaining rights on sheriffs’ deputies is associated with about a 45% increase in violent incidents.
The son of a police leader, Rushin is often at the forefront of cutting-edge empirical questions in policing. For example, do heightened scrutiny and criticism of cops and their departments lead to de-policing—a cutback in the vigor of officers in combatting crime? Rushin has examined the question using U.S. Department of Justice (DOJ) investigations as proxies for heightened public scrutiny and Justice Department settlements as proxies for heightened external regulation of departments. He applied difference-in-difference regression analyses comparing the impact of DOJ investigation and regulation on crime rates compared to control jurisdictions that did not fall under DOJ scrutiny. Check out the article for his findings. Rushin also has analyzed a dataset of 178 police union contracts and illuminated common provisions arising from collective bargaining that can frustrate police accountability efforts. This empirical strategy complements other important work on police unions applying legal analysis and case studies, such as this excellent 2017 article by Catherine L. Fisk and L. Song Richardson.
Rushin’s latest project, Police Disciplinary Appeals, draws on an even larger dataset of 656 police union contracts to reveal how the often-extensive process police officers have to appeal disciplinary sanctions can stymie police accountability. Through compelling narratives, the article illustrates how attempts to dismiss problem officers are blocked and sanctions reduced in lengthy appeals—even when smoking-gun evidence of egregious misconduct is caught on video. Rushin is able to shed light in an area often overlooked because of his impressive data collection strategy. He amassed his large dataset of police union contracts between 2014 and 2017 through open record requests as well as searches of publicly available documents. I have been impressed by the ingenuity and persistence of JD-PhD-trained law professors like Rushin and Jordan Blair Woods, author of the excellent new article Policing, Danger Narratives, and Routine Traffic Stops, in accumulating large datasets using public records requests to offer fresh insights on policing.
Like another prolific scholar, Kate Levine, whose superb new article Discipline and Policing, was featured last month here, Rushin’s work also is valuable in illuminating the internal procedures and regulations of police departments. The article begins with an informative overview of labor and employment protections for police officers coming from (1) police union contracts, (2) law enforcement officer bills of rights, and (3) civil service laws. Rushin then explains how he generated and coded his large original dataset of police union contracts covering municipal police departments in 42 states that authorize police unionization.
Rushin found that the strong majority of these 656 contracts have a similar disciplinary appeals process. Around 73% provide for appeal to an arbitrator or comparable procedure and nearly 70% provide that an arbitrator or comparable third party makes a final binding decision. About 54% of the contracts give officers or unions the power to select that arbitrator. About 70% of the jurisdictions give these arbitrators extensive review power, including the ability to revisit disciplinary matters with little or no deference to the decisions made by supervisors, civilian review boards or politically accountable officials. Together, Rushin’s findings reveal that “arbitrators are the true adjudicators of internal discipline in the majority of police departments” in the study’s extensive dataset. Rushin observes that the police union contracts setting forth these protections are typically negotiated outside of public view or participation. He proposes reforms that would give the public more oversight power and democratic actors more of a role in the disciplinary appeals process.
Rushin’s wide-angle lens view of how police union contract provisions can pose potential hurdles to police accountability is illuminating. For a scientist, the arguments also raise hypotheses that call out for testing via an innovative research design. Dharmapala, McAdams and Rappaport’s new quasi-experimental study rises to the challenge, offering important and disturbing evidence of an association between conferral of collective bargaining rights and an increase in violent incidents in Florida sheriff’s offices.
An innovation of the trio’s study is exploitation of a change in law—a 2003 Florida Supreme Court case Coastal Florida Police Benevolent Ass’n v. Williams that gave Florida sheriffs’ deputies the right to engage in collective bargaining. Collective bargaining proceeded in such earnest that 76% of sheriffs’ deputies in Florida spread in 28 offices were under a collective bargaining agreement by 2008. In contrast, Florida police officers had collective bargaining rights much earlier, beginning in 1968. Because of the contrast, the researchers could examine violent-incident complaints before and after the conferral of collective bargaining rights on sheriffs in 2003 using a difference-in-difference approach. Changes in trends in violent incidents in the treatment group of Florida sheriff’s offices receiving collective bargaining rights could be compared to trends in violent incidents in the control group of Florida police departments unaffected by this legal change (the treatment). This approach allows us to focus on changes attributable to the intervention of conferring collective bargaining rights and control for other factors occurring in the state that might have affected rates of violent incidents.
The investigators found that before Williams the treatment (sheriffs) and control (police) groups had similar parallel trends, an important assumption that must be met for the difference-in-differences approach. After Williams, the number of incidents of violent misconduct rose in the treatment group but not the control group. Moreover, the increase in violent incidents appeared to be sustained more than a decade after Williams (2011-2016 compared to 2003-2010). Interestingly, violent incident also rose in sheriff’s offices that did not enter into collective bargaining agreements (to a smaller magnitude and with borderline statistical significance).
The findings are particularly intriguing because Florida has a statutory Law Enforcement Officers Bill of Rights containing numerous protections for officers, and also is a right-to-work state that allows employees to decline to join unions. Both factors would be expected to dilute the impact of conferring collective bargaining rights because officers already have a baseline of protections and because it is harder to fully unionize a workforce in right-to-work states. Yet the investigators’ findings regarding an increase in violent incidents were of noteworthy magnitude as well as statistical significance. The investigators are collecting Florida collective bargaining agreements to analyze how provisions go above the protections in the statutory Law Enforcement Officers Bill of Rights. Here their envisioned analytical strategies intersect with those pursued by Rushin, showing how both empirical approaches are complementary and enrich our knowledge of these important issues.
Cite as: Mary Fan, The Power of Police Unions
(May 3, 2019) (reviewing
Stephen Rushin, Police Disciplinary Appeals
, 167 U. Pa. L. Rev.
__ (forthcoming, 2019), available at SSRN.
Dhammika Dharmapala, Richard H. McAdams, and John Rappaport, Collective Bargaining and Police Misconduct
, available at SSRN.
If prisons are about keeping prisoners locked in, it is safe to say that they do an equally good job of keeping the public out. Professor Demetria D. Frank’s article, Prisoner-to-Public Communication, explores how prison mail policy does both: The practice of censoring outgoing prisoner mail keeps some speech from ever escaping the prison, and by default, the public is made more ignorant about prison life and conditions. As a result of this censorship, there is less public knowledge and less motivation for greater public oversight of corrections facilities. Frank’s remedy for these twin harms is to provide prisoners with an “unqualified and unfettered prisoner-to-public communication” right as a means of validating prisoner voices and increasing the accountability of the executive branch of government.
The issue Frank raises is critical in the age of mass incarceration, where state and federal penal systems rely on prison as a mainstay punishment for felony crimes. This reliance has made the U.S. a world leader in incarceration. With such wide-scale deprivations of human liberty, one might suspect that prisons would be subject to rigorous external accountability, perhaps more so than any other government institution or agency. After all, prisons are total institutions that govern 100% of an inmate’s existence and make them 100% dependent on the prison. With so many lives in the hands of government institutions, one might think that prisons would be subject to the most stringent regulatory standards—yet this is not the reality. Instead, prison regulatory standards have been declining, and actual monitoring of them is practically non-existent.
Frank opens with a discussion of a California prisoner who launched the 2018 prisoner hunger strike, which the prisoner took upon himself at great legal risk. This prisoner made a cell phone recording that was posted to social media. In the video, the prisoner peacefully urges the outside, free public to examine why prisoners would resort to fasting for so long to protest prison conditions. In one swoop, this prisoner brings Frank’s thesis to life: Because the prisoner could not communicate these grievances to the public directly, he had to resort to covert measures—at great risk.
Such a narrative about prison life is important because it underscores the uphill battles that prisoners face in communicating with the public. As the author notes, prisoners “have inside knowledge about prison life and the social circumstances that result in the loss of freedom. Incarcerated people are also likely the best providers of prison accountability.” From this perspective, the lack of oversight and regulation of prisons works in tandem with prison policies that silence the voices of prisoners and their critiques of the place they call home.
The author makes several convincing arguments in support of a strong prisoner communication right. The first flows from the fact that prison conditions have worsened substantially in recent decades. As reliance on prisons has soared, prisons have had to deal with overcrowding, underfunding, and recidivism. These problems have worked to the detriment of life inside for prisoners, as well as in their home communities.
Next, Frank gives the reader a sense of the general lack of enthusiasm of courts to override prison decision-making. It begins by describing the “hands off” approach that courts took when dealing with inmate grievances, which dominated most of the country’s history. This approach was bolstered by the idea that prisoners were “slaves of the state” and that criminals were subject to “civil death.”
Eventually, courts began to intervene on behalf of prisoners and recognize some rights that were retained in prison. She notes a high point in Procunier v. Martinez (1974), where the Supreme Court held that prison regulations that restrict free citizens’ access to prisoner speech must further a substantial government interest unrelated to the suppression of expression and must be no greater than necessary to protect the government interest involved. Still, the Court would soon retreat from this bold proclamation in Turner v. Safley (1987), which decided the standard of review for regulations aimed at intra-prisoner speech. This standard moved away from Martinez, and instead, asked whether the regulation was “reasonably related” to legitimate penological concerns or were an “exaggerated response” to those concerns.
Frank’s central argument is that outgoing prisoner communications should be governed by the more rigorous Martinez standard, which required that the regulation further an important and substantial government interest, and that officials do no more than necessary to further the interest. This is more demanding than simply requiring that the regulation be “reasonably related,” which, in the corrections context, is practically no standard at all. The author bolsters this prescription by noting that prisoners are politically powerless and are completely reliant on prisons for survival, so they should be granted a right to communicate with the public. This prescription, however, does not propose unlimited communications on behalf of prisoners. Indeed, the right would be applicable only for communications directed to the public, and not communications to other prisoners in other institutions. Moreover, the right would still give way to censorship of prisoner-to-public communications in some cases, such as if they are made for the purpose of forming unions.
Frank’s work impressively underscores the payoff for granting prisoners such a communication right. Perhaps most significant is the claim that a robust communication right will open prison doors to greater accountability; if people are able to know about what is actually going on in prison, then that knowledge could lead to greater public interest and could invite more oversight of prisons. The author also suggests that the right can also lead to greater prisoner rehabilitation, and ultimately, greater public safety. The ability to silence prisoners creates disassociation between prisoners and society, whereas the right to communicate validates their voice and provides dignity and self-esteem, which for some, are building blocks for prisoner rehabilitation. At the same time, for the public, increased potential for rehabilitation may lead to reductions in recidivism and social harm.
Taken wholly, this work is laudable for delving into issues that seldom cross the legal scholar’s mind, let alone become elevated to something worthy of research and writing. The right to communicate is largely a given for people on the outside, but for prisoners, it may be the only way to cast light on injustices inside. Professor Frank fluidly underscores a timely issue that details why stripping prisoners of communication rights also strips the public of an understanding of what it is getting for its money. If the proposition of giving prisoners more power to communicate gains traction, it would be a step toward taming a policy that unnecessarily deprives prisoners of basic constitutional rights and deprives society of a critical check on the government.
Kate Levine’s article Discipline and Policing is the embodiment of timeliness. Its argument, in a nutshell, is that the progressive program to reform policing by making police officers’ individual disciplinary records (PDRs) transparent is ineffective if not counterproductive, exacerbates racial disparities, and promotes carceral logic. This thesis lies at the intersection of two fascinating criminal justice conversations of the day. The first involves the explosion of scholarly and political exposition on how to reform policing from the bottom up—exposition that has dislodged top-down Fourth Amendment doctrinalism from its stranglehold on academic attention.The second regards the growing trend of powerful political actors, plutocrats, and others in authority to invoke progressive civil libertarian and anti-incarceration arguments when faced with accusations of private and public wrongdoing. In turn, progressives call for swift, summary, and merciless discipline in such cases.
The bedfellows have become very strange, indeed. We live in a world where the most authoritarian U.S. president in decades touts the importance of the presumption of innocence, champions sentence reduction, and critiques police violence. Of course, he does so selectively and calls out the FBI for its raids on his nefarious associates but lauds ICE for raiding the family homes of law-abiding immigrants. We live in a world where liberal talking heads night after night praise federal law enforcement officers and prosecutors for casting wide investigative nets, flipping witnesses by threatening long sentences, and seizing lawyer-client documents. Progressive analysts declare with utmost indignance that Trump should cooperate with Mueller because “innocent people have nothing to hide and nothing to fear from police interrogation.”
Discipline and Policing decries progressives’ selective abandonment of civil libertarian, lenient impulses when the stakes involve punishing the left’s preferred “bad guys.” The left’s instrumental, if not situationally ethical, approach to rights, punishment, and privacy is an understandable response to the trend of powerful politicians, business captains, and abusive cops to manipulate procedural protections to avoid fair accountability. Nevertheless, as Levine points out, we should not be so sanguine about this left law-and-order agenda. In the liberal imaginaire, a system that routinely exposes and summarily punishes bad cops will take down powerful abusers and deter future brutality. However, as Levine argues, the distributional reality is not so neat. “Police brutality is a complex, systemic problem that demands a complex and systemic solution,” she warns. “Scapegoating ‘bad’ officers by outing them as having a ‘bad’ record not only ignores the systemic problems of police violence, but also allows police departments to continue crafting the narrative that the department is a well-functioning organization with just a few bad apples.”
Events including the NYC stop-and-frisk litigation, police killings of unarmed black men, Ferguson, Black Lives Matter, and multiple Obama-era DOJ investigations threw wide open the Overton window on policing reform. Yet, in this moment of radical awareness, the proposals have been disappointingly conservative, and in the case of body cams and other technologies, tinged with capitalist interests. Publishing individual officers’ PDRs certainly feels like a drop in the bucket, well short of, for example, New York City’s virtual elimination of stop-and-frisk. The extent to which incremental reforms like training, bodycams, and publishing PDRs impede larger de-policing efforts, as Levine contends, is an open empirical question. Nevertheless, Levine’s argument that such measures take pressure off police departments under public scrutiny makes intuitive sense.
Perhaps the risk would be worth it if publication of PDRs were relatively effective and cost free. Discipline and Policing makes a compelling case that they are not. The article exposes that disciplinary findings are highly discretionary, often lacking in evidentiary bases, and ultimately racially discriminatory. It provides evidence and anecdata that black officers and officers who protest racism are subject to discipline more readily than white officers and officers who are racist. In short, sunlight may be a disinfectant, but it also tends to bleach everything white. Levine further questions whether exposing disciplinary records is effective at deterring police misconduct or boosting community confidence. Levine ruminates that publicizing police wrongdoing might erode police-community relations, increasing the likelihood of violent clashes.
The most fascinating, and no-doubt controversial, moment of the paper comes by way of Levine’s equivalence of police officers with public PDRs and marginalized individuals with public criminal records. Here, we can return to the contemporary controversy over right-wing invocations of due process. During the Kavanaugh hearings, for example, supporters of the jurist decried Democrats for declaring a man “guilty” on the basis of forty-year-old “uncorroborated” accusations. Now-justice Kavanaugh was likened to a poor criminal defendant railroaded by a criminal system bent on finding guilt. Liberals rejoined that Kavanaugh’s liberty was not at stake and he would be just fine without a Supreme Court appointment. Thus, the level of proof of wrongdoing could be relatively low: The testimony of an apparently credible victim would suffice. In other words, society could afford put the burden on Kavanaugh to prove his innocence because a job in the nation’s High Court is a rare privilege, not a right. Similarly, one might counter Levine’s analogy by noting that police officers whose PDRs are exposed do not experience the civiliter mortuus of those with criminal records. Levine, in fact, notes that disciplined officers with public PDRs in Miami-Dade County kept their jobs. One might reasonably argue that publicizing police PDRs is a good way to try to curb misconduct and send a message without ruining officers’ lives forever, much in the way Kavanaugh remaining on the D.C. Circuit might have struck a balance between concerns over sexual assault and concerns over not ruining the man’s life without more proof.
Still, I am sympathetic to Levine’s point that the increasing popularity of allegation-equals-truth arguments and judging individuals’ current character by their past history portends to disproportionately affect the marginalized. I continue to worry that outrage over the Kavanaugh hearings will translate into policies that burden poor men of color accused of sexual assault and those with sex crimes records. Encouraging the public to obsess over individuals’ alleged past wrong-doing, whether in a judicial hearing or through transparent PDRs, feels fully inconsistent with the ban-the-box sentiments currently in vogue with progressives. Moreover, one is left to wonder whether PDR sunshine will pave the way for the widespread exposure of the personnel files of other employees who serve the public (doctors, lawyers, teachers). If police insubordination is ground for summary termination, why not fire faculty who are insubordinate to deans? Benjamin Levin has written compellingly about this problematic phenomenon in Criminal Employment Law.
In the end, I am not entirely sure that PDR transparency will translate into a reversal of ban-the-box sentiments or a greater rush to judge those accused of past crimes. Nor am I fully convinced that PDR transparency creates minimal deterrent value and maximal harm to police officers’ lives. But I am persuaded that the cost of exposing PDRs to sunlight is much greater than meets the eye, and I am grateful to Professor Levine for making me think about it.
Trevor Gardner, Right at Home: Modeling Sub-Federal Resistance as Criminal Justice Reform
, 46 Fla. St. U. L. Rev.
__ (forthcoming 2018), available at SSRN
Two important law reform conversations are taking place on largely parallel tracks. One is a conversation about criminal justice reform. The other is a conversation about immigration enforcement. Occasionally, those conversations overlap, but for those who work at the intersection of criminal and immigration law, one source of surprise is how rarely this is the case.
Many of the arguments made in support of criminal justice reform forward apply in the immigration context as well. In both spheres, we see racial disproportionality in enforcement, the inability of criminal punishment to deter conduct driven by unaddressed root causes, and the mounting social costs of punitive systems that needlessly separate families and sunder social networks. In both arenas, private companies profit from and lobby for policies that increase incarceration, surveillance and new-widening rehabilitative programs. And yet the immigration enforcement system—and particularly its racial dimensions—are naturalized and normalized in ordinary political discourse. Conversations around immigration enforcement sound like the conversations about criminal enforcement in the mid-1990s (or in the White House now), with a common-sense consensus, against all evidence, that the nation needs to nurture and expand an expensive, discriminatory and dehumanizing system of enforcement. In his article Right at Home: Modeling Sub-Federal Resistance as Criminal Justice Reform, Trevor Gardner deftly shows how useful it is to integrate these conversations, particularly because the structure of immigration enforcement that the federal government has created over the past ten years essentially ensures that reform efforts aimed at one of these systems cannot succeed completely without reform to the other. This is perhaps not the primary point of Gardner’s article, which is more centrally concerned with developing a theory of appropriate sub-federal resistance to federal criminal enforcement overreach. But the article manages to shed light on a broader range of questions than Gardner takes on.
Gardner’s primary goal is to distill an argument in support of instrumental sub-federal resistance to federal overreach to achieve the goal of criminal justice reform. He first describes the steady increase in federal power over sub-federal criminal enforcement efforts that has taken place over the last forty years. He then presents what he calls a “process model of criminal justice reform.” He describes the process has having four stages. In short, the four steps are: abstention, nullification, mimicry, and abolition. The process is described as linear, but not inevitable; Gardner acknowledges the possibility of events that will disrupt the process.
The first step in the process model is abstention; the sub-federal government chooses to abstain from participation in a federal enforcement initiative. This power of states (and localities) to abstain from enforcing federal regulatory programs is rooted in the Tenth Amendment. Gardner illustrates this step using examples from the “immigration sanctuary movement,” in which various states and localities declined federal invitations and exhortations to expend their own resources to assist in identifying and detaining immigrant residents of interest to federal immigration enforcement agencies.
In the second stage of Gardner’s process model, “the act of abstention effectively nullifies the federal initiative within that particular jurisdiction.” Staying with the immigration sanctuary example, Gardner reveals how each major cities’ abstention from cooperative enforcement requests substantially limited the federal government’s immigration enforcement efforts. As more and more cities enacting non-cooperation policies (perhaps evincing Gardner’s step three: mimicry), the widespread nullification pushed the Obama administration to revise and narrow its enforcement policies. This never reached the level of full federal abolition, but the administration did scale back the Secure Communities program and replaced it with the Priority Enforcement Program, which involved a greater degree of collaboration and negotiation with local law enforcement. (Of course, as Gardner notes in his introductory section, his process model does not necessarily proceed in linear fashion in all cases, and that has been true in the area of immigration enforcement. The Trump Administration revived the Secure Communities program and scrapped the more cooperative PEP model. But this has only prompted more localities to abstain and nullify, with a significant dampening effect on federal enforcement efforts.)
Third, after abstention and nullification, other jurisdictions mimic the choice to abstain, widening the scope of nullification. To illustrate this process of mimicry, Gardner uses the example of section 908 of the Patriot Act, which required state and local officials to be trained in intelligence gathering in the course of their duties and instructed the US Attorney General, in coordination with the Central Intelligence Agency, to train police in the identification, circulation, and interpretation of foreign intelligence data. Numerous towns and cities in New England—and later, elsewhere—responded by passing ordinances in opposition to the measure that cited civil liberties concerns. Gardner argues that as more and more localities enacted these ordinances, their work served as a cultural recoding. Localities offered new cultural frames through which to understand notions of public security, and in so doing, they laid the groundwork for broader systemic reform.
The final step in Gardner’s process model is abolition. At this stage, the federal government, “upon recognizing the scope of enforcement nullification and a corresponding challenge to its own credibility regarding the issue of public security, may choose to abolish the policy underlying the opposed initiative.” The cleanest example of this is the repeal of Prohibition which Gardner unpacks. He also notes that federal enforcement policy around marijuana laws has not moved toward full abolition, but suggests that such a move is possible.
The final part of Gardner’s paper offers his theoretical intervention. To mediate between William Stuntz’s extremely pessimistic view of the federal role in criminal justice policy and Stephen Schulhoffer’s responsive, pessimistic take on local criminal justice policy, Gardner advocates for instrumentalist—as opposed to ideological—sub-federal resistance. Gardner first notes the limitations of “local” criminal justice policy. Drawing on the work of Evi Girling and other criminologists, he acknowledges that “[l]ocal sensibilities regarding crime had less to do with local criminal activity and more to do with national crime politics and the criminal enforcement campaigns that flowed from these politics.” Local crime policies generally are responsive not to local conditions but to local understandings of received, packaged narratives about national and international threats. To remedy this, Gardner argues for local policies that reflect “healthy” sub-federal skepticism toward the “federal public security agenda” coupled with “more local democratic accountability” to impede unwanted, sub rosa participation of local actors in unpopular federal enforcement schemes.
Gardner acknowledges that a systemic tolerance for local skepticism could also lead to breakdowns in enforcement around environmental protection and civil rights, but he suggests that the federal government has the tools to avoid this problem. He uses the Department of Justice litigation against Sheriff Joe Arpaio as an example, noting that “in the same political moment in which cities and counties passed immigrant sanctuary policies in an effort to aggressively oppose police participation in the enforcement of federal immigration law, the federal government successfully challenged Sheriff Arpaio [for the civil rights violations he perpetrated in his excessive immigration enforcement campaign] in federal court.” This example does illustrate the important point that the federal government has the oversight tools to curb some police misconduct. But it is important to acknowledge that such resources are limited and that many abusive officials were not prosecuted in this period. Only the most egregious actors—or those in spaces where local advocates are mobilized and heard—are likely to get the kind of federal attention that was lavished on (the now-pardoned) Sheriff Joe. And as Gardner’s own examples illustrate, each locality has the capacity effectively to nullify certain enforcement efforts that it views as undesirable, and it seems unlikely that the federal government can corral all of these actors through costly litigation, even assuming that doing so is a federal priority.
Ultimately, it is not clear that Gardner’s answers to the fears of localism are wholly reassuring. But his paper is important for its contribution to thinking about the process by which localities shape criminal (and immigration) law and drive law reform. In particular, his insight into how local opposition can “recode” national narratives around public security really helps to make sense of the significance and the mechanisms of contemporary local enforcement resistance.
Cite as: Jennifer Chacón, Local Resistance and Criminal Law Reform
(February 8, 2019) (reviewing Trevor Gardner, Right at Home: Modeling Sub-Federal Resistance as Criminal Justice Reform
, 46 Fla. St. U. L. Rev.
__ (forthcoming 2018), available at SSRN), https://crim.jotwell.com/local-resistance-and-criminal-law-reform/