Jan 26, 2026 Darryl Brown
The United States imprisons about 1.8 million people—more than any other nation. Roughly a quarter of those behind bars have not been convicted; they are detained while awaiting a court hearing. The burden is not evenly distributed: the share of black men in prison is three times their share of the national population. What explains America’s commitment to spending so much to lock up so many? In her previous book, Prisoners of Politics (2019), Rachel Barkow put the blame squarely on the fact that U.S. criminal justice policy at every level—local, state, and federal—is made by politicians and voters rather than agencies informed insulated from political pressure and informed by expert analysis. The public perennially demands tough-on-crime policies. Legislators oblige by enacting ever-harsher laws. Elected prosecutors enforce those laws. Reforms won in recent years through politics—election of progressive prosecutors, bail reform, decriminalization of marijuana, and modest sentencing law changes—barely moved the needle.
Barkow’s new book, Justice Abandoned, starts with the same convincing premise: populist and politicized policymaking generally sustains the laws and practices that produce mass incarceration. She has now shifted both the focus for blame and reform to the U.S. Supreme Court, a choice both obvious and odd. Obvious because the Court clearly deserves some of the blame: for decades it has ruled, in a variety of cases that Barkow astutely unpacks, that the Constitution puts few restraints on the policies that have filled American prisons and jails. Odd because if there is one institution less likely than Congress or prosecutors to put the brakes on mass incarceration, it would seem to be the current Court.
Barkow tells a lucid, insightful story about how the United States went from a country with relatively ordinary levels of imprisonment for most of the twentieth century to the world leader in depriving citizens of liberty. Policymakers had to overcome several hurdles. To arrest, prosecute, convict and imprison a lot more people requires more money for more police, prosecutors, public defenders, judges, and prison cells. Barkow explains how the Court approved policies that made arrest, prosecution, and punishment cheaper and easier—and in the process more cruel, more biased, less accurate, and less just.
The number of people in pretrial detention—often for months—rapidly increased after Congress passed the 1984 Bail Reform Act, which for the first time authorized jailing defendants not for their past criminal conduct but based on a judge’s prediction about their future dangerousness. The Supreme Court approved this new basis for detention on the dubious rationale that jail before trial is not “punishment” but merely a “regulatory” practice to prevent crime. States quickly passed similar laws. Over the next two decades, pretrial detention skyrocketed. Before the BRA, one-quarter of people charged with federal crimes were jailed pretrial. Today, about three-quarters are; average detention time has grown from two months to nearly twelve. Whether this change makes the world safer is basically unknowable. While we know most defendants out on bail don’t commit another crime, we have no idea how many were needlessly detained based on an erroneous prediction about their dangerousness.
Most people in prisons have been convicted of something, but very few by a jury. Nearly all pled guilty. Defendants have always had the option admit guilt, but only in the last half century did the Supreme Court endorse plea bargaining and allow prosecutors to condition guilty pleas on defendants waiving not only trials but also rights to appeal, to challenge illegal searches, or to see government evidence. It also approved pressure tactics such as making one defendant’s plea bargain conditional on another defendant also pleading guilty. In the Court’s view, none of this was coercive. A choice between pleading guilty to a five-year sentence or a mandatory life sentence after trial merely gives defendants a free choice. And if defendants plead guilty freely, surely none confess to crimes they didn’t commit. Yet, as Barkow notes, a shocking number of wrongful convictions—confirmed by DNA evidence—were the result of defendants who pled guilty. The Court ignored the foreseeable strategy its rulings enabled: prosecutors use the greatest pressure when their evidence of guilt is weakest. When government’s case is strong, prosecutors can simply show their cards, which convinces most defendants to plead guilty for even modest leniency.
Once these tactics were widely adopted, the share of trial convictions shrank from an already-modest twenty percent in the 1970s to barely three percent. Legislatures pitched in by enacting harsher sentencing laws to give prosecutors more bargaining leverage: the harsher the potential post-trial sentence, the more readily defendants agree to avoid it through a plea bargain. Average sentences grew in the last four decades along with the number of convictions. Barkow reports that life sentences proliferated, so that one in seven prisoners are now in for life—one in five for black prisoners. Barkow describes how the Court concluded that the Constitution had effectively nothing to say about excessive prison sentences. Despite the Eighth Amendment’s ban on cruel and unusual punishments, the Court ruled it was not judges’ job to decide whether sentences are so unconstitutionally disproportionate—even when, as in Harmelin v. Michigan, a first offender’s sentence for having less than a kilogram of cocaine was life-without-parole.
Imprisonment is expensive. States have long minimized costs through overcrowding and failing to provide decent food and basic health care. In the 1970s, these practices were so widespread that lower courts declared prison conditions unconstitutional in thirty-one states. Then the Supreme Court decided, in 1981, that the Constitution gave states wide leeway on overcrowding and substandard conditions. Barkow suggests that the Court feared that it was up against realistic limits of judicial power. The Court observed in one case that, if it held that the Constitution required every inmate to have a nine-by-six foot space two-thirds of all inmates would be deemed imprisoned unconstitutionally.
Whether states would have ignored such strictures is speculative but doubtful. States did as little as possible in the face of court-ordered reforms, but none defied judicial authority. In 2011, when the Supreme Court narrowly affirmed a lower court order for California to address its grossly overcrowded prisons—in which, among other cruelties, mentally ill inmates were locked in cages rather than given medical treatment—the state complied. Barkow joins other scholars in the conclusion that, by gutting constitutional oversight of prisons, the Court removed what could have been a meaningful constraint on the steady increase in prison and jail populations.
Still, it remains an open question what prisons would look like had the Court opted for a different path across the landmark decisions Barkow criticizes. There are reasons to think Barkow is right: the Court could have hindered mass incarceration by interpreting key constitutional provisions in line with its earlier decisions and in accord with plausible understandings of the Constitution’s original meaning. Courts’ job is sometimes to make clear that the Constitution prohibits some policy choices favored by legislatures and voters. Doing so, they often succeed. Lower courts once forced meaningful reforms of some of the worst prisons. When a federal court found overwhelming evidence of racially biased stop-and-frisk practices by New York City police, the NYPD changed its policy without measurable effect on crime prevention.
On the other hand, sometimes bad-but-popular policies find ways around judicial roadblocks. Southern school districts for decades avoided Brown v. Board of Education’s bar on racial segregation. Perhaps prosecutors and trial judges would have found other ways to replace trials with guilty pleas even without the harshest pressure tactics for plea bargains. If forced to improve prison conditions, maybe states would have ramped up leasing prison labor. Prohibiting the most extreme sentencing laws might have yielded only slightly less extreme ones. When the Court banned mandatory life-without-parole sentences for teenage offenders, the effect in some states was barely noticeable: they now impose life sentences with a chance for parole decades in the future.
However that alternate world might have turned out, criticizing the Supreme Court’s mass incarceration decisions at this late date is more an argument about the consequences of flawed constitutional interpretation than a roadmap for reform. For the foreseeable future, the Court will have a conservative super-majority with no inclination to revisit Barkow’s hit-list of bad precedents, all of which were put in place by less conservative versions of the Court. Realistic prospects for reform, dim though they are, more likely rest with the process in which Barkow understandably places little hope: democratic politics. There has, in fact, been some modest progress through—among other things—reform of bail, sentencing, and marijuana laws and mass clemency for certain drug offenses. Those reforms are far too little to reverse a half-century of mass incarceration. But for now, they seem to be the most we can expect.
Dec 11, 2025 Maximo Langer
The Fourth Amendment right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures has been celebrated as one of the most important bulwarks of freedom in American law. One of the main reasons for such a belief is that when warrants are required, they must be issued by a neutral and detached magistrate. Aside from anecdotal knowledge by legal practitioners and a very small set of empirical studies, we know very little about the actual process of search and seizure warrants. Unwarranted Warrants? An Empirical Analysis of Judicial Review in Search and Seizure by Miguel F.P. de Figueiredo, Brett Hashimoto and Dane Thorley is important because it fills a vacuum in this regard by presenting the largest empirical study on the judicial review of search and seizure warrants in the United States to date. It is also important because its empirical findings reveal substantial shortcomings in the warrant process in Utah that are likely present in other jurisdictions in the United States.
The authors base their analysis on a comprehensive dataset from Utah’s statewide electronic warrant platform. The dataset includes digital timestamps, full warrant affidavit texts of approved warrants, and identifying information about judges and officers. (P. 1983.) The digital timestamps allow the authors to analyze the time judicial officers take in reviewing warrant applications, and scraping the pdfs of the warrants and the warrant applications allowed them to collect data on the length, complexity, facts, and legal content of the warrants. (P. 1984.) In addition, the use of both quantitative and qualitative data allows the authors to get a more nuanced picture and analysis of the judicial review of warrant applications.
The most interesting part of the article is its empirical findings.
In terms of review time of approved warrant applications, the median review times by judicial officers was only three minutes, with 10% reviewed and signed in under sixty seconds. (Pp. 1996 et seq., 2040.) In this regard, the authors found substantial disparities in their review times among judges, with a set of judges having a median review time of less than two minutes and a few having a median review time of less than one minute. (P. 2016.) Using a series of regressions, the authors then examined whether judges’ characteristics were correlated with review time, finding that the length of judge’s tenure in years and the background as a defense attorney were correlated with shorter review time. (P. 2017 et seq.) The authors understandably found this last result surprising and hypothesize that one potential mechanism at play is that judges with “… such a professional background provided them with more opportunities to critically evaluate warrants and see the most common reasons for approved warrants to be later overturned.” (P. 2023.) Alternatively, given the way judges are appointed in Utah, it is possible that “judicial candidates with criminal defense backgrounds may have to overcome a presumption of being soft on crime.” (P. 2023.)
In terms of the rate of approval of warrant applications, the authors found that 93.56% of warrant affidavits were approved in their initial submission, and that once resubmissions were included the approval was 98.14%. (Pp. 2025-26.) (The authors report these numbers as part of their main findings. But they also explain that if they included the submissions that were withdrawn before a judge could review them, the approval rate of initial submissions was 89.90%, and of submissions and resubmissions was 96.96%. (P. 2026.)) In this context, their study finds wide disparities between judges; some approved almost 100% of affidavits they received, while others approved less than 80%.
The authors run a series of regressions on approval-not approval of warrant applications as the dependent variable and judicial characteristics, finding statistically significant correlations that judges with law degrees and, somewhat surprisingly, judges who previously served as prosecutors, were less likely to approve warrant applications. (P. 2031-32.) The authors hypothesize that judges with a prosecutor background were less likely to approve because their prior work experience may have changed the way those judges approach and understand warrant review. (P. 2032.) Alternatively, they hypothesize that the interplay between prior legal practice and ideology may not go in the traditionally understood direction. (P. 2032.) They also found that male and white judges are more likely to approve warrant applications, which could be the result of them tending to be more conservative than nonwhite and female judges. (P. 2032.)
Regarding the interpretation of their main findings, the authors acknowledge that for many, their results will be another proof that the penal system is broken. (P. 2041.) But the authors conclude that their data do not show that all warrants are simply “rubber stamped”, since the initial approval rate of warrants reveals some level of judicial scrutiny. (Pp. 1967, 2015, 2028, 2029.)
The authors acknowledge that there is not a baseline on the rate of approval of warrant applications and on how long it should take to review them. (Pp. 1992-93, 1996, 2026, 2034, 2042.) They also acknowledge the likelihood that law enforcement officers learn (the judicial interpretation of) the legal standard and adjust their request accordingly. (P. 2026.)
However, the authors persuasively argue that these results are concerning for multiple reasons.
First, even if there is no baseline to assess how long a judicial assessment of warrant applications should take and even accounting for economies of scale, the authors argue that the review time of warrant affidavits of three minutes for the majority of affidavits and of under sixty seconds for ten percent of the warrants are “… often much more brief than the generally accepted understanding of the constitutional warrant requirement would anticipate.” (P. 1996.) In this regard, they find objectively problematic that there were judges who reviewed half of all their warrants in less than a minute. (P. 2016.)
In addition, the authors argue that given the speed at which warrants were reviewed, judges were missing some submissions that did not meet the legal standards, which would play a role in explaining the high judicial approval rate of warrant applications. (P. 2016.)
The authors also reason that the fact that most judges find that at least 4 to 5% of warrant applications do not meet the legal requirements suggest that those judges that approve all of the warrant applications they receive are not taking the warrant process the way they should. (Pp. 2029-30.)
The authors also engaged in a qualitative in-depth review of two subsets of randomly selected warrant approvals from their dataset that provided additional elements to have concerns about the practice of warrant review in Utah. (P. 2035.)
In explaining the shortcomings of judges’ warrant review in Utah, the authors do not attribute it to poor judging, but rather as the “inevitable result” of the jurisprudential nature of warrant review and extralegal factors that they list, such as the motivations of law enforcement of “ferreting out crime” that may bleed into the judge’s decision, the ex-parte and repeat-play nature of the warrant review process, judicial resource constraints and expediency, and the cognitive difficulty of reviewing warrants. (Pp. 1990, 2041.)
Their interpretation of their results thus concludes:
Taken together, we argue that our empirical and qualitative evidence raise serious concerns about the ability of the current warrant-review process to meet its call as the bulwark against police error or abuse…. If the system has these flaws, then we must call into question the efficacy of Supreme Court decisions that rely on the warrant process as a higher standard to preserve the privacy rights of the citizenry….” (P. 2042.)
Finally, the authors explore avenues for reform. First, they call for continued empirical study that states and local governments could facilitate by implementing data transparency and reporting requirements with respect to warrants. (P. 2043.) They also show skepticism about doctrinal reforms such as changing the legal standards for issuing warrants and for warrant review given how deeply embedded Fourth Amendment probable cause jurisprudence is and that doctrinal reform is primarily a back-end recourse. (P. 2044.) Instead, they find more promising policy reforms such as bans or restrictions on the use of no-knock warrants, requiring mandatory review by police-chiefs or prosecutors of certain types of warrants, and creating magistrate panels to review certain types of warrants. (Pp. 2044-45.) They also advocate for institutional and behavioral policies, such as external reviews—e.g., occasional, random audits of a judge’s warrants or police officer’s affidavits and warrant requests—ways for judges to become more self-informed about their own practices, and encouraging criminal defense attorneys to avail themselves of data on warrants to challenge warrants. (Pp. 2045-47.)
Nov 13, 2025 Jessica M. Eaglin
Data-driven policing technologies. By now, you can probably name a few off the top of your head. Facial recognition technology, GPS location monitoring devices, Automated License Plate Readers, ShotSpotter, and of course, predictive policing software. All are common examples of surveillance tools used by police which rely on algorithms to process large amounts of data. But what are these tools? Traditionally, we understand them as “technology.” In her recent article, Police Technology Experiments, Elizabeth Joh considers whether and how legal engagement with these tools might change if we conceptualize these technologies as “experiments.” Because her novel framework begs important questions at the intersection of law, technology, and science in contemporary society, this is a must-read essay for legal scholars interested in policing, criminal law, and beyond.
Joh begins by explaining the current legal and social framework in which police technologies are evaluated. She defines police surveillance technologies as tools that make use of vast amounts of data and utilize algorithmic tools to sort, classify, analyze and produce inferences from that information for criminal investigation. These tools, she explains, exist within a scant regulatory environment. Investigative police surveillance does not trigger many (if any) Fourth Amendment restrictions. Further, data-driven policing is an increasingly dominant model of policing across the United States. Whether due to federal funding support and/or marketing and incentives from proprietary vendors, this model is expanding. Despite standout U.S. Supreme Court decisions like Carpenter v. United States and Riley v. California, very little exists in the way of comprehensive regulation on police departments’ use of these technologies.
In light of this scant regulatory environment, Joh proposes conceptualizing (and thus approaching) police surveillance technologies as “technology experiments on human subjects.” As experiments, these tools would be evaluated for their adherence to “scientific method,” with an emphasis on “well-designed testing.” She argues that “the unproven uses of an automated system by the police for surveillance and intervention on human subjects” would reorient our focus toward ethical considerations because they are tested on people and communities akin to biomedical and behavioral research. Such research is guided by principles of “respect for persons, beneficence, and justice.”
Joh contends that this change in framework could result in different questions and practices in law. First, it would require a working hypothesis that government officials would evaluate in advance of experimentation. Joh looks to three examples where police deploy information technology to demonstrate the lack of such a practice: the Chicago Police Department’s adoption of an algorithmic risk assessment model to identify individuals who have a high risk of perpetrating or being the victim of gun violence (its “Strategic Subject List”); the Chicago Police Department’s adoption of acoustic gunshot technology (ShotSpotter) to assist in the deployment of police officers; and the Los Angeles Police Department’s program to identify high-risk individuals for extra police attention via an algorithmic system (aka Operation LASER—Los Angeles Strategic Extraction and Restoration). In each instance, plausible hypotheses about the technology’s use—whether it is aimed to reduce violence, gun crimes, or bias in policing—would have been clearly contestable in advance of implementation. Joh points to the history of policing in Chicago and Los Angeles, along with Inspector General reports on the programs in each jurisdiction, to support this point. Moreover, evidence of each program’s failure to meet these goals after implementation would be obvious and pertinent to whether such programs should continue in a jurisdiction. Further, she contends that ethical considerations would be more prominent. The fact that these tools were deployed in areas largely populated by Black and Brown communities makes clear the unequal distribution of research benefits and burdens from an ethical point of view.
Ultimately, Joh contends, this framework makes visible and important various aspects of police surveillance technology’s expansion that are considered distinct from either technical or Fourth Amendment critiques. It is this last point that makes her essay so intriguing. Through it, Joh begs an important question about the blindspots that arise when a legal practice is considered a “technology” versus “science.” Characterizing police surveillance technologies as “experiments” demands that we take more seriously scientific standards which may be easily overlooked when the tools are characterized as a technology in criminal law.
Now, I am not convinced that this bioethical framework would lead to different practices among police departments, particularly for Black and Brown communities. We have a long history of using science as a tool of subordination alongside law. Indeed, bioethical regulations often exist because of abuses in scientific study concentrated among marginalized communities. Yet whether Joh’s framework actually leads to different outcomes among police departments is only part of the point. Joh’s essay underscores that we can frame information technology in criminal law as both science and technology. What kinds of issues arise the more we hew in one direction or the other is an important question for policing scholars, criminal law scholars, and beyond to consider going forward. This essay does a wonderful job bringing that question to the fore.
Oct 14, 2025 Eric J. Miller
Ekow Yankah’s article, Deputization and Privileged White Violence, makes a stark claim: every state and territory in the United States has a legal-power-conferring norm enabling “violence aimed at racial minorities, particularly Black people, by White people who, as private citizens, take themselves to be innately authorized to police racial minorities.” (P. 709.) He calls this legal authority “deputization.”
Yankah’s article is a work of conceptual-normative criminal law theory. His claim is that deputization is a normative feature of our society, and as such “not easily amenable to empirical verification.” (P. 715.) His methodology is therefore one of “philosophical reconstitution” of the concept of deputization as a “sociologically and historically embedded” legal power. Nonetheless, he wants us to take this claim head on: he really means that deputization is a currently-existing legal norm empowering white people to police Black people using violence to seize Black people they think are dangerous, including by using deadly force. Deputization, Yankah claims, is legal in every jurisdiction in the land. Worse, because that private policing norm is available only to white people it is, in part, constitutive of what it means to be a white person in the United States.
Were Yankah describing only a widely shared social norm, that would be momentous enough. However, Yankah’s claim is more profound: despite Reconstruction, the civil rights revolution, and the constitutional, statutory, and case-law doctrines invalidating enslavement, segregation, and various forms of racial discrimination, there has existed an historically persistent, universal (in the United States, at least) legally enforceable norm that has escaped these attempts at express legal repudiation. Instead, deputization endures as some type of law that hides in plain sight to empower white people to use (often deadly) violence to regulate the behavior of Black people they characterize as dangerous.
There are a few other normative claims that Yankah makes on the way, but the core thesis is that to be a white person in the United States is to have the benefit of a law that allows you to use violence to regulate the behavior of Black people you perceive to be dangerous. How could Yankah establish that such a legal power exists?
The usual way of explaining the existence of a legal power is by pointing to some express law—a statute or a case—that, by the law-creating act of some official or body, serves as the source of that power. However, there is another source of law I think Yankah identifies here: customary law. Customary law is neither express nor made by individuals (whether legislative bodies or judges). Instead, customary law is created by the behavior of legal officials, usually judges, collectively in recognizing through their conduct some practice as having the status of law.
Normally, theorists point to judge-created law when discussing contemporary customary law. Yankah does canvas a history of statutes, cases, and common-law doctrines expressly creating civilian powers and even duties to arrest as part of the earlier history of deputization. However, since the 1960s, judge-made and legislated laws have prohibited anti-Black discrimination as a matter of formal law. How could anti-Black laws persist in the face of these express legal norms?
One answer is that the power to create law does not reside solely with the legislature or the judiciary. While a variety of legal theorists, including Joseph Raz and John Gardner, point to the practice of judges and other legal officials, including police and prosecutors, as having the ability to create customary legal norms, for the most part, these theorists concentrate on the law-creating powers of judges and not these law-enforcement officials. One of the innovative aspects of Yankah’s article is that he asks us to attend to law-enforcement officials’ ability to create customary norms by treating as binding their practice of nullifying criminal laws that conflict with the ability of white people to use often-deadly violence against Black people they characterize as dangerous.
Yankah’s argument can be a little normatively tricky at times, but one version is that there is not simply a social custom of anti-Black violence (what Bentham calls a custom in pays, or of the people) but also a legal custom of non-prosecution of that violence (Bentham’s custom in foro) practiced by legal officials, in particular, police and prosecutors. Social customs can themselves be legally recognized in a number of ways, one of which is by also becoming a legal custom. To illustrate the point, consider a phenomenon identified by Mitchell Berman as “temporal variance.”
In basketball games, referees do not enforce foul rules toward the end of important matches. Temporal variance is not an act of discretion on the part of one or two officials; it is a routinely applied part of the game, and players, officials, and fans commonly criticize those officials who flout this practice. But note: the temporal variance rule, though applied uniformly, is nowhere stated in the rules of basketball. Instead, the referees practice a form of official nullification that allows the players to engage in conduct that would be contrary to the rules on another occasion. This shared official activity creates a customary norm of basketball, enforced by the norm-applying officials, and relied upon by referees, players, and spectators alike.
It’s not always clear whether Yankah thinks there is a socio-official customary norm in each legal system affirmatively empowering white people to use violence to police Black people, or a separate official customary norm, in this case, of executive official nullification, that recognizes the social customary norm of white anti-Black violence. I think a sympathetic reconstruction of Yankah’s argument is that legal officials, especially police and prosecutors, engage in a form of nullification and treat certain aspects of white supremacy as normative for their enforcement or application of the law. These officials’ nullifying acts have a different legal status than non-officials’ (e.g., juries) because officials can create customary law by what they do; non-officials cannot (unless their customs are recognized as law). Thus, there is a difference between judicial or prosecutorial nullification (legal custom) and jury nullification or even widespread community pressure not to prosecute (social custom).
Even this weaker claim, of a law-enforcement custom of nullification, is sufficient to support the phenomenon of legal deputization, and raises some profound questions of sovereignty and criminalization: in other words, of who makes the criminal law. First, the issue of legal pluralism—that there are multiple, overlapping sources of law regulating the process of seizure in this country. Yankah adds another one to the mix of federal, state, and municipal law: the customary law of the police and prosecutors nullifying deadly racist seizures of Black people by white citizens. Legal pluralism points to the further question of legal sovereignty: do police and prosecutors constitute independent law-making institutions that stand apart from the legislature and courts as sovereign sources of law? Yankah’s article thus engages the political theory of the power and status of the police. Yankah’s article also forces us ask who deputizes the deputy: the state, the (white) community, or some sub-state institution (the county or municipality)? Finally, Yankah presses hard on the decriminalization question: what will it take to prevent prosecutors and police creating an anti-constitutional and anti-democratic—certainly anti-equality—customary law of white deputization? These questions, currently at the fringes of our theories of the police, are only likely to become more central over the coming months and years.
Sep 12, 2025 Maartje van der Woude
Legal scholars in the United States may be tempted to see the British immigration system as distant or parochial, marked by its own bureaucratic idiosyncrasies and Commonwealth-era legacies. But Mary Bosworth’s Supply Chain Justice makes clear that this is a mistake. This searing ethnographic analysis of immigration detention in the United Kingdom reveals not just a national policy architecture, but a global paradigm of border enforcement—one that resonates powerfully with ongoing developments in the United States.
At its heart, Supply Chain Justice is a meditation on outsourced state power: what happens when liberal democracies turn over core functions—especially the coercive task of incarceration—to private corporations, acting under performance-based contracts with limited oversight and diffuse responsibility. Bosworth uses the concept of the “supply chain” to describe the web of public and private actors—guards, managers, administrators, NGOs, civil servants—who collectively operate the UK’s immigration detention system.
The U.S. reader will instantly recognize the parallels: the growth of private prison companies like GEO Group and CoreCivic, the contractual delegation of migrant detention to remote facilities, the proliferation of “non-places” of legal limbo, such as ICE holding centers and CBP’s “short-term facilities.” Like in the UK, U.S. border control increasingly relies on legal formalism paired with moral distancing, where procedures are rigorously documented but accountability is elusive.
Bosworth’s key contribution lies not just in documenting this machinery, but in illuminating the emotional, ethical, and legal dislocations it creates. Drawing on interviews and observations inside privately-run detention centers, she reveals how frontline staff often experience their roles as morally ambivalent. They are rule-followers, enforcers, caretakers, and sometimes critics—all at once. Detainees, meanwhile, are caught in a system where legal rights are formally acknowledged but substantively hollow.
This analysis speaks directly to U.S. debates over immigration enforcement, subcontracted governance, and the erosion of constitutional accountability. Consider the rise of “shadow immigration proceedings” in the U.S., expedited removals, or migrant child detention at ORR facilities run by private contractors. As in the UK, the fragmentation of detention authority serves both logistical and political purposes: it makes the system scalable, depersonalized, and insulated from legal challenge.
What Bosworth offers is a critical legal ethnography that complements doctrinal analysis. Her work forces readers—especially legal scholars—to ask uncomfortable but necessary questions:
When the administration of detention is parceled out to private firms, who holds the moral and legal responsibility for harm?
Bosworth’s ethnography pushes us to confront the legal black holes created by contractual governance. When private firms manage the daily realities of confinement—when they decide who gets to call a lawyer, when to initiate solitary confinement, or how medical care is rationed—accountability becomes a game of deflection. Staff cite corporate policy. Corporations invoke government directives. The state pleads budgetary constraint or logistical necessity. Legal scholars familiar with doctrines of sovereign immunity, agency liability, or Bivens actions will find themselves asking: can tort law or constitutional remedies meaningfully address harm when responsibility is functionally and legally disaggregated? Bosworth invites us to see not just gaps in oversight, but a system designed to diffuse blame—a moral vacuum wrapped in legal insulation.
Can a rights-based legal system operate within a contract-based enforcement regime?
This question cuts to the conceptual heart of Bosworth’s intervention. Liberal legal orders premise legitimacy on rights—due process, humane treatment, legal redress. But detention contracts are performance-managed tools of efficiency: they reward cost-cutting, speed, and security metrics. Bosworth’s interviews show how this contractual logic infiltrates everyday decisions: how long a detainee waits for medication, whether grievances are logged, how disciplinary decisions are recorded. Rights, in this regime, become aspirational rather than enforceable—check-boxes rather than guarantees. For U.S. scholars examining the rise of algorithmic adjudication, contractor-run juvenile facilities, or constitutional claims in outsourced systems, Bosworth’s work underscores a hard truth: contract law may operationalize detention, but it also subordinates justice to deliverables.
What happens to justice when the state itself becomes a client in a supply chain?
Perhaps the most arresting insight in Supply Chain Justice is how the state transforms from a guarantor of justice to a consumer of detention “services.” Bosworth’s metaphor of the supply chain is not just descriptive—it’s diagnostic. Once the state contracts for enforcement, it adopts the logic of procurement: efficiency, risk transfer, vendor compliance. The law becomes a specification, not a framework of values. In this context, “justice” becomes transactional, stripped of its ethical dimension. For U.S. readers, this frames a deeper concern about the administrative state—not just its reach, but its retreat. When enforcement is privatized, the state’s presence becomes both expansive and abstract, powerful and unaccountable. Bosworth forces us to consider whether justice can survive when the state becomes just another node in a logistical network.
Supply Chain Justice is also a methodological exemplar. It brings rich qualitative data into dialogue with political theory, legal doctrine, and administrative structure. Bosworth writes with a rare mix of clarity, empathy, and analytic precision. U.S. scholars interested in border criminology, privatized punishment, and administrative statecraft will find this book indispensable.
It’s easy to dismiss privatized immigration enforcement as a policy flaw or a budgetary expedient. Bosworth shows it is neither: it is a philosophical and institutional choice, one that reshapes the legal meaning of justice. Her book is a call to rethink where and how law operates—and where it deliberately does not.
For those of us in the U.S. looking to understand the logics behind our own carceral border regime, Bosworth’s account is not just useful; it is essential.
Aug 1, 2025 Sheldon Evans
As a hostage and their kidnapper physically struggle, both desperately trying to pry away a loaded firearm from the other, a police sniper takes the shot. The entire world pauses while looking to their smart phones for an update on this ongoing hostage crisis, and then moves on just as quickly. This surreal climax of the Black Mirror episode “Smitherines” brilliantly sets the visceral stakes of the ongoing transactions between Big Tech and Big Brother. But as Professor Yan Fang uncovered, this arms-length partnership is not as seamless as Big Tech pessimists might believe. There are what she calls “knowledge misalignments” between these two institutions that complicate the picture of the next generation of law enforcement, investigations, and individual privacy rights.
In Internet Technology Companies as Evidence Intermediaries, Fang discusses the reality that tech companies have become evidence intermediaries. This is fictionally illustrated in “Smitherines,” where the kidnapping of a social media company’s employee leads to an unlikely partnership between the social media company and law enforcement as they both try to uncover as much information as possible about the kidnapper. One of eerie takeaways from this on-screen partnership is that the social media company is able to access and leverage far more information about the kidnapper from his social media profiles than police detectives with years of experience. This striking commentary illustrates the real-world truth that tech companies are custodians of petabytes of consumer information that billions of people around the world freely share on their platforms. Thus, Fang describes that when law enforcement agencies (LEAs) seek information about these consumers for a variety of investigatory purposes, tech companies serve as the intermediary between LEAs and the trove of evidence they seek.
While Black Mirror specializes in drama and hyperbole, the stakes are indeed high. To take one example, LEAs have used genetic information from 23andMe to solve cold-cases with DNA evidence. Privacy experts also point out that LEAs may seek information from apps that women use to track their menstrual cycle to track pregnancies and potential abortions in a post-Roe v. Wade world in places where abortions are criminalized.
In a growing law and tech field that can ironically feel stagnant by canvasing the same issues or proposing the same solutions, Fang’s piece shows innovation in its methodology and scholarly contributions. Over the course of several years, Fang engaged in a qualitative research study, interviewing dozens of employees from tech companies and LEAs to learn how their exchange of information works on the ground. Breaking free of the ivory tower and going where the rubber hits the road uncovered some surprising takeaways from the people who actually have power over our most intimate information.
Fang’s contribution to this literature identifies just how much gets lost in translation between Big Tech and LEAs, which she terms as “knowledge misalignment.” She uses this term to summarize her findings that both parties in the exchange of information often do not have adequate knowledge of the other’s policies, procedures, or purposes. For example, when an LEA is seeking specific and targeted information, they often do not have adequate knowledge about how to request such information from the tech company. Perhaps the LEA will ask about a person’s “buddy list,” but this vernacular may not correspond with how the tech company keeps information. The tech company might allow users to create a “friends list,” or they have a “buddy list” and a “friends list,” or they have neither. Another problem might arise if an LEA blindly requests “all relevant information.” That might be overbroad, and also might very well overwhelm the LEA, providing a haystack when it is really looking for a needle.
On the other side of the knowledge misalignment relationship, a tech employee who is tasked with responding to an LEA request for information will almost never have knowledge of the LEA’s investigatory purpose, and this may limit the employee’s ability to adequately respond. If an LEA asks for a consumer’s “session time,” a tech employee might be left wondering what type of information the LEA really wants. Do they want a record of when a consumer logged in and logged out of the company’s website? Or do they really want a record of when the consumer rented or sold something on the website? Without more knowledge of the LEA’s investigatory purpose (such as investigating a person renting property to facilitate production of methamphetamine, or communicating inappropriately with underage children), tech employees are making their best guess in a good-faith effort to be responsive to the LEA’s lawful request.
The findings I found most interesting from Fang’s interviews are those that are intertwined with my normative suspicions of the Big Tech – Big Brother relationship. On the tech side, employees were worried about not providing responsive information to LEAs because it might increase their workload. If they gave the LEAs unresponsive information, this could lead to the LEAs following up for more information, even though Fang found that such follow-ups were rare. This perspective of tech employees surprised me; perhaps in my naivety, I expected for tech companies to be champions of safeguarding consumers’ information from government intrusion. Instead, Fang’s study left me with a sense that these employees—while well-intentioned—are struggling to find the right balance between multiple stakeholders: the consumers that trust them with their data, LEAs who legitimately need information for many important purposes, and their co-workers who must manage their workflow. Fang also notes that some tech companies have developed their own procedures for streamlining this process to decrease transaction costs. Not every tech company is going to litigate their consumers’ privacy rights to protect against government encroachment. Perhaps Fang’s work has made me finally realize that tech companies’ promises of privacy are a farce in this new age of human flourishing.
This dovetails with Fang’s findings from LEA personnel interviews. LEAs reported encountering both cooperative and adversarial attitudes from tech companies. Many found tech companies to be incredibly helpful, going the extra mile to help an LEA officer obtain the information they sought; others reported that tech companies could provide arbitrary responses that would not produce helpful information. As somebody who believes strongly that the government must meet a high burden to infringe on individual liberties, I am suspicious of private tech companies helping LEAs meet their burden. Unfortunately, it appears the dynamic works in the opposite way for some tech companies; they see it as a burden to constantly be pestered by LEAs, so they have tried to make the process easier for everyone. This makes sense from the perspective of a private company that seeks to reduce their transaction costs, but it leads to a perverse result when they are further empowering the government to peer into somebody’s private life for the purposes of criminal or civil prosecution. While the normative balance between privacy and security is not within the scope of Fang’s study, she nevertheless contributes to this age-old discussion.
Fang’s study also uncovers an underappreciated truth: LEAs often acquiesce to the practices and expertise of tech companies. This practical realization flips the power dynamic of public vs. private on its head. Because the tech companies have what the LEAs want, they are not merely evidentiary intermediaries, but gatekeepers. Tech companies have possession of consumer information and are experts in how to access, collect, and interpret it. With this power comes great responsibility. If tech companies were to take an adversarial stance to protect their consumers’ personal information, LEAs would seldom have the time or the resources to fight for this information; but as tech companies consistently take a more cooperative approach, they give LEAs access to information that it would have otherwise taken countless hours of multiple trained investigators to uncover in previous generations. Tech companies need not acquiesce to LEAs; they have the power and responsibility to serve as a check against government overreach.
Fang addresses this overall approach of treating tech companies as protectors of privacy and gives some reason for caution. First, there may be incidents when tech companies help LEAs in a way that can lead to less intrusive information being shared. When tech employees work with LEAs to standardize or otherwise translate their requests, this often results in smaller amounts of information being shared, and prevents the sharing of large amounts of unresponsive information. Second, she correctly cautions us against putting too much trust into tech companies as the chivalrous protectors of our data. Tech companies will always seek more information, because information is money; the government will always seek more information because information is power; and if Big Tech and Big Brother are both operating according to these incentives, perhaps the responsibility lies with the individual to protect themselves. But this option seems less and less likely as we rely more on Big Tech to make our daily lives easier.
As we peer into the black mirror of our phones, tablets, and screens, what do we see? Fang’s work uncovers the nuances of a growing new relationship between Big Tech and Big Brother. Currently, this relationship suffers from knowledge misalignments, but both institutions seek to iron out much of these asymmetries. For those of us down the barrel of an LEA sniper for right or for wrong, the stakes are life and death. And for those others who will look at their phones for an update and move on with their life, so too are the stakes high for how this relationship impacts their life and their death.
Jul 2, 2025 Christopher Slobogin
Shawn Fields’ The New Public Safety: Police Reform and the Lurking Threat to Civil Liberties, which will be published by the University of California Press in September, is a brave and wise effort to envision a post-DeFund the Police world. While the defund movement has, at best, been a mixed success, some municipalities have experimented with de-policing routine interactions with people who are unhoused and mentally ill, authorizing civilian “violence interrupters” to roam the streets, and handing over traffic enforcement to unarmed officials. In The New Public Safety, Fields endorses these developments but also cautions that, without regulation, they will become simply a new version of policing, one that may look “soft” but in fact is not. At the same time, he argues that, with regulation, soft policing is preferable to the goal of entirely dismantling government-oriented responses, a goal that is currently popular in some circles but, as Field shows, goes too far.
Chapters One and Two of the book summarize current policing disaggregation trends. These chapters are full of statistics and disturbing stories that demonstrate why it is a bad idea to have armed officials—trained in the use of force and charged with detecting and stopping crime—function as first responders for vulnerable people in trouble and as enforcers of low-level infractions. This part of the book also details how specialized agencies charged with handling specific types of crises, such as homelessness, psychiatric emergencies, and social service crises, can, in theory, do a better job than the police at promoting public safety. Chapter Two ends by describing the views of abolitionists, who aver that replacing police with other government officials will simply reintroduce today’s carceral and exploitative responses in a different form. While Fields recognizes that possibility, he disagrees with the abolitionists’ goal of eliminating both traditional and soft policing and outlines what needs to be done to avoid the outcomes they fear.
Chapters Three and Four starkly demonstrate that Fields is not blind to the dangers of soft policing. In those chapters he catalogues instances of “social workers who abuse clients, psychiatrists who hospitalize high-functioning patients in gulags, medical personnel who violently assault the infirm, and homeless ‘outreach’ teams who sweep away entire communities without providing adequate alternatives.” He acknowledges that alternatives to arrest-by-police can still lead to unlawful use of force and custodial confinement and that social welfare programs can serve as opportunities or even fronts for collection of criminal evidence. But the solution, he asserts in the final chapters of the book, is not to abandon these alternatives but to ensure that the personnel in charge are completely independent from crime-fighting.
First, Fields emphasizes, these other government agents must be “disentangled” from the police. That requires, he says, “firewalled emergency hotlines” for these agencies, authorizing civilian agency response without police backup unless and until the agency specifically requests police presence, and limiting when the civilian responder “can call police or share details with the police, especially when illegal drug use, camping, or other nonviolent acts associated with these underlying conditions are present.”
The more important part of the book, however, is its shocking documentation of the fact that, under current constitutional doctrine, alternative responders are often given much more leeway than police when it comes to invading privacy and using force. Fields shows how, in the few cases that litigate the issue, courts often hide behind the notion that, if these alternative agents are not engaged in crime-fighting, they either don’t need to worry about the Fourth Amendment or at most need only abide by a watered-down special needs regime. Thus, as a constitutional matter, courts allow intrusions into homes (and tents) on mere suspicion and permit the use of excessive force with impunity. While non-constitutional remedies are available for some of this misconduct, the presence of immunity doctrines, the absence of attorney fees, and the difficulty of obtaining injunctive relief often found in state tort systems make them ineffective substitutes in many cases.
Fields also calls out the current trend toward broadening civil commitment standards to allow involuntary hospitalization and medication even of those people who are not imminently dangerous to self or others or unable to care for themselves. He rightly contends that, because it involves a seizure, detention of a person with mental illness, even under emergency circumstances, should require probable cause; it is high time the courts recognize that the Fourth Amendment applies to state efforts to detain people with mental illness. Similarly, medical personnel responding to emergencies and agencies charged with relocating homeless encampments are engaging in seizures and searches that should be subject to constitutional overview.
To discourage the deputization of these alternative responders by the police, Fields also argues that, in the absence of probable cause, evidence found by social workers making welfare checks, mental health professionals responding to calls for help, and housing agents monitoring the tents of the unhoused should be excluded from criminal trials. According to Fields, “[e]xcluding such illegally obtained evidence would protect citizens from alternate responder overreach, deter such misconduct, and promote a primary goal of the new public safety: disentangling nonviolent, noncriminal conduct from the tentacles of the carceral state.” Fields recognizes that, given the Supreme Court’s decision in Virginia v. Moore (holding that exclusion is not required for violations of state law unless the Fourth Amendment is also violated), mere state regulation along these lines will not be enough. Instead, rejecting Moore, he argues that the full force of Mapp v. Ohio needs to be leveraged to prevent soft policing from becoming a pretext for criminal investigations. To further aid in that endeavor, he argues, the motivation for searches and seizures should not matter. Proof of an “objective intrusion” should state a constitutional claim even if the government actor doing the intruding is acting with benign, non-investigative motives.
In his last chapter, Fields suggests that both the move to disaggregate policing and his call for better regulation of soft policing should appeal to all points on the political spectrum. Whether or not that is true, he has identified a middle road between current practice and abolition that makes eminent sense.
May 30, 2025 Jennifer Chacón
How is criminal law distinct from civil law? Standard criminal law textbook answers focus on the unique role of the state in criminal law. Violations of the criminal law are presented as actions that harm the state. The state is said to maintain a monopoly on punitive power and can deploy it in unique ways to redress these harms. In a democracy, the exercise of punitive state power purportedly channels the will of the people. These propositions are offered as justifications for the imposition of punitive sanctions that have no identical counterparts in the world of civil law, including imprisonment and even death.
Many of these fundamental propositions do not entirely hold up under close scrutiny. The state’s monopoly on punitive power has been heavily outsourced to private actors. The flaws of political and representative processes in the U.S. (and within U.S. states) mean that criminal law is an imperfect expression of the will of the people, with the result that criminal law often both mirrors and replicates the discriminatory impulses of political (and racial) majorities. Immigration detention and civil commitment both undercut the truism that incarceration is unique to the criminal context. But what of criminal prosecution? Should we understand it as the unique province of the government? Standard accounts, and decades of case law, tell us that the answer is yes. But in her immensely readable and engaging article The Past and Persistence of Private Prosecution, Emma Kaufman provides a different, and very intriguing, answer to that question.
Kaufman observes that recent scholarship has raised lots of questions about the role of private actors in policing and prisons. In contrast, the bulk of the scholarly literature presumes that prosecution retains a uniquely public character. With this article, Kaufman joins a small handful of other scholars exploring the existence and significance of private prosecutions. She notes that private prosecution is still allowed in a majority of U.S. states, and that only a quarter of criminal cases nationwide “must, as a matter of law, be managed by a public prosecutor.” (P. 92.)
In the first part of her article, Kaufman pieces together a historical account of the nineteenth century rise of the state monopoly story. Using primary and secondary course materials, she concludes that at the time that states and localities created pubic prosecutors’ offices, they did not equate this move with an assertion of a state monopoly on prosecutorial power. Kaufman explores how the distinction between these two ideas was blurred in the late nineteenth century through doctrinal and descriptive oversimplifications. (P. 110.)
In the second part of the article, Kaufman draws on a diverse range of sources to explore the persistence of private prosecution. She notes that seven states continue to allow for private prosecutions of some crimes, and that another twenty cognize a significant role for private actors in prosecutions. (Pp. 128-29.) She further observes that the prevalence of private prosecution is even greater when one accounts for the degree to which prosecutorial powers continue to be outsourced to private actors. (Pp. 131-32.) Finally, she reminds the reader how contempt and qui tam proceedings operate as additional examples of private forms of prosecution. (P. 138.)
Kaufman traces out many doctrinal implications of the continued existence of private prosecution in the U.S. She notes that it casts doubt on (or at least troubles) the doctrinal underpinnings of double jeopardy’s “dual sovereignty” notion, exceptionally broad prosecutorial disclosure obligations, Younger abstention, and Section 1983’s state action doctrine. (P. 97.) It also undercuts objections that conservative jurists have raised to the contempt doctrine in cases like Robertson v. United States ex rel. Watson, 560 U.S. 272 (2010) (Roberts, C.J., dissenting). Those objections are built upon the idea that criminal prosecution is exclusively public and exclusively the domain of public prosecutors. In the same way, Kaufman notes that the continued salience of private prosecution undercuts core assumptions of public prosecution undergirding Judge Cannon’s opinion in the Trump documents case and Justice Thomas’s concurring opinion in the Trump immunity case. (Pp. 103-05.) Her argument also raises questions about the doctrinal underpinnings of prosecutorial immunity and plea bargaining. (P. 93.) If the role of the prosecutor is not solely or uniquely public, then the extraordinary insulation that courts have accorded prosecutors’ decision-making and professional processes are more difficult to justify.
But Kaufman argues that the implications of her argument extend beyond these (already quite significant) doctrinal matters. She asserts that it has potential to reframe broader discussions around the reform of criminal legal systems.
First, she notes that the persistence and viability of private prosecution eliminates the need to equate private prosecution with victim-led prosecution. As she puts it, “nineteenth-century criminal law adopted a more capacious and in some ways much more radical notion of standing than one that simply allows victims to prosecute crimes.” (P. 93.)
Second, Kaufman suggests that the recentering of the possibility of private prosecution can allow for a more expansive thinking about appropriate remedies for criminal harms. (P. 93.) Specifically, she maps the ways in which the “public” prosecutor legitimated the police in the late nineteenth century, (P. 114.) As she explains it, “[t]he emergence of the public prosecutor with a claim to control over the criminal docket empowered the police and put them in their proper place as the first movers in a coordinated system of state-run criminal law enforcement.” (P. 115.) The notion that prosecution was a uniquely public function also legitimated the unique use of prison sentences to punish. Late nineteenth century legal opinions reflect judicial unease with private actors sentencing people to serve terms in prison. Public prosecutors assuaged this unease, and made it “possible for prison to be normalized as the natural end of the criminal process.” (P. 117.) Questioning assumptions about the publicness of prosecutions therefore allows us to question the extraordinary punitive powers that flow out of those assumptions.
Third, Kaufman argues that rethinking the accuracy of legal and descriptive claims regarding the public monopoly on prosecution also can enable new and creative approaches to the question of criminal law standing. (P. 143.) It need not just be the direct victims of crime who are empowered to enter the prosecutorial sphere, and there may be other, better options. (Kaufman provocatively points to the fact that Jeremy Bentham supported a hybrid system of concurrent public and private prosecution.) (P. 147.)
Finally, by questioning the unthinking classification of criminal law as purely public law, Kaufman generates new pathways into and around abolitionist and reformist debates that favor reducing public investment in criminal punishment, and that urge a turn toward different forms of community-based harm interventions. (P. 148.) Kaufman does not purport to offer concrete alternatives to current systems. But by questioning the link between “categorizing criminal law as quintessential public law” with a “normative commitments to good governance, progressive politics on crime control and a liberal philosophy of the state,” (P. 145), Kaufman encourages us to ask different questions about what we are doing now, and to use this new empirical understanding to guide us in thinking about what might be possible in the future.
Cite as: Jennifer Chacón,
No Monopoly, JOTWELL
(May 30, 2025) (reviewing Emma Kaufman,
The Past and Persistence of Private Prosecution, 173
Penn. L. Rev. 89 (2024)),
https://crim.jotwell.com/no-monopoly/.
May 6, 2025 SpearIt
As a decade-long contributing editor at JOTWELL criminal law, my modus operandi is to read legal scholarship with an eye to considering a piece for my annual JOTWELL review. Usually, I have several articles on my shortlist—but that was not the case this year. When I came across The Exigencies of Black Existence: The Blue Gaze, the State of Exception, & Racialized Policing in Carceral Internal Colonies by Ciji Dodds, I was hit with something different, a new prism through which to imagine the bonds between prison life and life in the ’hood; I was forced to read shocking statements that jolted me in poetic ways. It was reminiscent of when I first read Anthony Paul Farley or Angela Harris.
I was initially struck by the introduction, which pointed to the irony of Martin Luther King boulevards, which line practically every major city in the country. The ironic part is that although Dr. King was a fierce advocate of non-violence, his namesake streets are associated with violence and other vices of the ’hood, as she rhymes “[e]veryone knows to stay away from MLK.” (P. 235.) While such streets may also be associated with urban redevelopment projects in the wake of destroyed traditional Black business communities, this grim reality begins a journey into the dynamics of prison culture and its influence in preparing people for a life in prison. Statistically, it is in fact the neighborhoods where such streets are named that supply many of the people who will eventually find themselves in prison.
This startling introduction offers an overview of a type of priming that happens to people outside of prison that comes from within prison walls. For prison-culture enthusiasts, one might consider this situation as a reversal of the importation model of culture. Rather than social norms being imported into prison society, prison culture exports some norms. This point is clearly illustrated in the techniques and technologies that inform life in the ’hood: bullet-proof glass casings in convenience stores, metal bars, barbed wire fencing, surveillance cameras, and of course, police. Lots of police. The police, however, are not regular police, and instead represent a special brand who operate within “racialized states of exception” that create carceral spaces or “internal colonies, where the suspension of the rule of law has been deemed necessary to respond to America’s enduring state of emergency and national security threat, which is Black existence.” (P. 238.)
The author’s primary approach is to outline the defining characteristic of an internal colony and then to map these onto Black community spaces. Adopting Charles Pinderhughes’ notion of “internal colonialism,” the author marshals evidence to show how these characteristics pervade Black neighborhoods. Guided by the works of Frantz Fanon and Michel Foucault, the author theorizes Black spaces in America as an iteration of this type of spatial colony. The author’s argument is a straight syllogism. The article ends with a case study of Baltimore, Maryland, as an exemplar of such a carceral topography.
The author’s conceptualization of internal colonies as “a nation within a nation” is possible in large part because police effectively operate under a different set of rules. People in such communities must contend with the “blue gaze,” a concept informed by the work of Fanon, who saw the Black body as the permanent object of suspicion and guilt—as “the depository of maleficent powers.” (P. 244.) The notion of the “blue gaze” represents the way police patrol and surveil Black communities, but it also signals white supremacist power over Black bodies. The idea is also indebted conceptually to Foucault’s understanding of the panopticon, the constant surveillance that disciplines bodies outside of the prison’s walls. The enactment of the “blue gaze” occurs in states of exception, in places that feel like occupied zones, a state of perpetual emergency. Internal colonies are produced by the blue gaze and this racialized state of emergency.
Dodds’ work embodies an originality, creativity, and intellectual inquiry that advances our understanding of important legal questions involving legal theory, policing, and race studies. She convincingly shows that prisons provide the technologies and procedures for police outside of prisons. The blue gaze structures Black communities in ways that ensure that life outside of prison prepares their members for life inside. Prisons are the model for themselves. They are the blueprint for structuring the ’hood.
But the work also moonlights as a piece of literature. It injects a dose of beauty into a notoriously dull and dry genre of scholarship. It is an interdisciplinary work that showcases Professor Dodds’ deep understanding of racial policing in America, and of the corollary institutions that support such internal colonies. The author contends that for some, “to live inside of a carceral space means to live as a *citizen, with an asterisk to live knowing that you are being deprived of the Constitution while power attempts to gaslight you into believing that the Constitution contemplates and encompasses your existence.” (P. 257.)
Apr 7, 2025 Elena Larrauri
It has become sort of a truism to say that prisoners have rights, that is, they are ‘citizens behind bars’ and no longer slaves of the state. Much less attention has been devoted to how they can protect these rights. Although prisoners have access to justice, litigating from inside prison is difficult. Incarceration impedes access to counsel and access to courts, and requires substantial time, economic means, and certain knowledge. In their paper The Dutch Complaint Procedure: A ‘Picture Perfect’ Procedure?, authors Tessa Van Der Rijst and Pauline Jacobs provide a brief and clear explanation of how ‘the picture-perfect procedure’ works in practice in Dutch prisons.
Calavita’s and Jeness (2015) seminal work Appealing to Justice exhorted us to look at mechanisms inside prisons that prisoners could use to present their grievances and defend their rights in the United States. A ‘Picture Perfect’ Procedure? takes up that challenge in the Dutch context. Although in Europe there is no need to exhaust the administrative procedure before going to the Courts, the internal system of lodging a complaint still matters. Van Der Rijst and Jacobs are among the European scholars who have turned their attention to these procedures. (See also Daems and Larrauri, 2024).
One reason for the recent scholarly attention is that the European Prison Rules (Rec (2006)2-rev 20 rule70) recognize prisoners’ right to make requests and complaints to the director of the prison or to any other competent authority. Another reason is that the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) has spelled out what the basic principles of complaints mechanisms in prison should be, namely: availability, accessibility, confidentiality, effectiveness, and traceability.
Van Der Rijst, and Jacobs explain that the Netherlands has had a prison complaint system since the 1970s. According to the authors, this complaint system has often been referred by the CPT as a good model because:
It is available, the complaint bodies are independent, it allows complainants active participation and legal assistance, it provides redress, it is both preventive and compensatory remedy, and it offers reasonable prospects of success. (P. 2-3.)
They focus on how prisoners perceive the system, drawing upon The Life in Custody Study (van Gineken et al. 2018). The Study examined the quality of life in detention in a total of 28 prisons using a large scale survey of 4,538 detainees who were in remand or incarcerated in the first four months of 2017, examining detainees’ satisfaction with the complaint procedure. Prisoners were asked to indicate to what extent they agreed with four statements: (1) the monthly or weekly visiting officer could be reached easily, (2) the Complaint Committee took the complaint seriously, (3) the complaint was dealt with swiftly and (4) I am satisfied with how my complaint was dealt with (van Ginneken et al. 2018). Scores on these questions were relatively low: on a scale from 1 to 5 (from completely disagree to completely agree), the mean for ‘Settlement of complaints’ was a little over 2.5, score 2 reflecting somewhat disagree and score 3 reflecting neutral (whereas twelve out of the seventeen that included aspects of prison life scored higher). According to Van der Rijst and Jacobs (2022), the response to statements two and four illustrate that the issue of prisoners’ perceptions of procedural justice should receive more attention.
This discussion is particularly important because when prisoners are asked, they generally respond that their degree of satisfaction with available complaint mechanisms is extremely low (Van de Valk et al, 2022), and dissatisfaction over officials’ handling of grievances are a possible source of future prison violence. Therefore, we are witnessing reform proposals of complaint mechanisms in several different European countries (Daems and Larrauri, 2024). Sometimes these reforms tend to focus on formal aspects emphasizing only the need to provide an answer and to write down the reasons for it. However, Van der Rijst and Jacobs (2022) point out, following the research done by Jenness and Calavita (2018), that although procedural justice—how complaints are answered – certainly plays a very important role, concerns of distributive justice, the outcome of how such complaints are resolved also matter a great deal in prison. This is probably due not only to the fact of the vital importance of outcomes in prison, but also because of what a failure to deal with these requests and complaints communicates about the status of the petitioner.
The final part of the paper deals with the second challenge of the Dutch complaint procedure: the high case load of complaints. Although the number of prisoners is decreasing, the number of complaints increase continually. The authors understand that this is another reason for the dissatisfaction (as reflected in the third question of the mentioned questionnaire criticizing the speed with which officials handle complaints). Van der Rijst and Jacobs (2022) explore the possible alternative complaint resolution venues that recently have been suggested in the Netherlands by the Council for the Administration of Criminal Justice and Protection of Juveniles. They mention the use of mediation and explain how this can contribute to perceived procedural justice. They also discuss the introduction of an internal and informal complaint procedure that could deal with complaints more rapidly than the actual external committee. Finally, they consider the possible introduction of a 1.50 euro filing fee which could prevent the filing unnecessary complaints, although, according to the authors, this could negatively affect the perceived procedural justice.
The discussion of these proposals is instructive for other European countries that are struggling with how to devise a system that can deal with different categories of requests and complaints, and that need different procedures to successfully resolve these complaints (Daems and Larrauri, 2024). The establishment of a complaint system inside prison is particularly important because prisoners are totally dependent in the prison administration and are not allowed to solve even the simplest issues by themselves. The fact that a ‘right to make a request and complaint’ is recognized in many countries in the penitentiary law, but that no efficient procedure has been set to deal with them, is experienced by prisoners as a lack of ‘organizational respect’ (Hulley et al., 2012).
Finally, when no one answers the complaint inside prison, this could violate Article 13 of the European Convention of Human Rights, under which everyone whose rights have been violated have a right to an effective remedy before a national authority. Thus, in addition to moral reasons to defend prisoners’ right to have their complaints answered, we need to add an instrumental one: solving a complaint in prison might avoid further litigation before the Courts. However, we must also admit that no matter how ‘good’ or ‘effective’ the complaint system is, the difference of power is too big inside prison, and therefore to definitively diminish complaints we must reduce the main cause: living in such an unnatural environment as a closed prison.
