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The Federal Government’s Role in Local Policing

For far too long, the federal government has failed to exercise its constitutional authority to mitigate the harms imposed by local policing. Absent federal intervention, though, some harmful aspects of policing will not be addressed effectively, or at all. States and localities often lack the necessary capacity and expertise to change policing, and many states and localities lack the will. This Article argues for federal intervention and describes what that intervention should look like.

The Article begins by describing three paradigmatic areas of local policing that require federal intervention to create real change: excessive use of force, racial discrimination, and the unregulated use of surveillance technologies. Because state and local governments are either unable or unwilling to address these problems alone, the federal government should intervene to identify and enforce minimum standards, develop best practices, collect data, and distribute resources nationwide.

Regrettably, Congress has failed to act adequately to improve local policing for the better, although it has tried to encourage reform through the use of its Spending Power. This Article argues that Congress should utilize its regulatory powers under Section 5 of the Fourteenth Amendment and the Commerce Clause to address these paradigmatic problem areas, and it explains how this can be done consistently with Supreme Court doctrine.

Alongside—or in the absence of—congressional action, the executive branch has the power and responsibility to act to address policing’s harms. The Article explains that, though indirect, the President wields considerable power to influence policing by setting policy, implementing federal programs, enforcing civil rights, and supervising federal law enforcement. Although the executive branch should use this power to promote local policing that is effective, fair, and accountable, and that minimizes harm, administration after administration has failed to do so consistently and also has failed to hold federal law enforcement to these standards. Recent executive branch efforts have improved the situation, but there still exists a gaping chasm between how the federal government should be influencing local policing and how it is doing so today.

Introduction

23,0000 > 18,000 > 50 > 1. That is the mathematics of transforming American policing. Just under 23,000 cities and counties, 18,000 police departments, 50 states.1 1.These numbers obviously are approximations and vary from year to year. See Press Release, U.S. Census Bureau, U.S. Census Bureau Reports There Are 89,004 Local Governments in the United States (Aug. 30, 2012), https://www.census.gov/newsroom/‌releases/archives/governments/cb12-161.html [https://perma.cc/HJH6-QHV7] (number of cities and counties in 2012 Census); Duren Banks, Joshua Hendrix, Matthew Hickman & Tracey Kyckelhahn, Bureau of Just. Stats., U.S. Dep’t of Just., National Sources of Law Enforcement Employment Data 1 (2016), https://bjs.ojp.gov/content/pub/pdf/nsleed.pdf [https://perma.cc/6ZJW-8RCF] (reporting that there are about 18,000 police departments).Show More And one federal government. The point seems obvious. If the goal is to change policing for the better, mustering the authority of the federal government can provide an enormous fulcrum.

Even if every one of those 23,000 cities and counties and 18,000 agencies were trying to make policing fairer and less harmful, they could not do so by themselves. Some are far too small to have the expertise or resources to do so. More than eighty-five percent of local police departments and three-quarters of sheriffs’ offices have fewer than fifty officers.2 2.See Sean E. Goodison, Bureau of Just. Stats., U.S. Dep’t of Just., Local Police Departments Personnel, 2020, at 3 (2022) [hereinafter Goodison, Local Police Departments Personnel], https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/document/lpdp20.pdf [https://perma.‌cc/4MUQ-8KHV]; Connor Brooks, Bureau of Just. Stats., U.S. Dep’t of Just., Sheriffs’ Offices Personnel, 2020, at 3 (2022), https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/‌document/sop20.pdf [https://perma.cc/A5NL-X8WY]. Maria Ponomarenko has provided one of the best accounts of the challenges of small agencies. See generally Maria Ponomarenko, The Small Agency Problem in American Policing, 98 N.Y.U. L. Rev. (forthcoming 2024), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4537989 [https://perma.cc/J3E3-K9‌CN].Show More Yet, large jurisdictions struggle as well, and there is little doubt why. Most agencies lack the capacity to assess and adopt best practices without help. Or collect and share information in a consistent manner. Or attend to the interests of those most affected by policing in the face of other pressures and priorities. The simple fact is that even the most willing of states and localities cannot articulate or enforce national values and standards or coordinate easily across state lines. Only the federal government can do this.

Realistically, though, not all jurisdictions are focused on eliminating the harm in policing. Some are. Some states have pursued legislative or other changes to improve policing, and some states have done enough of this to plainly be taking the endeavor seriously.3 3.See, e.g., Jennifer Brown & Jesse Paul, Colorado Governor Signs Sweeping Police Accountability Bill into Law. Here’s How It Will Change Law Enforcement., Colo. Sun (June 19, 2020, 9:53 AM), https://coloradosun.com/2020/06/19/colorado-police-accountability-bill-becomes-law/ [https://perma.cc/JNV4-9KM8]; Michael Levenson & Bryan Pietsch, Maryland Passes Sweeping Police Reform Legislation, N.Y. Times (Apr. 10, 2021), https://www.nytimes.com/2021/04/10/us/maryland-police-reform.html [https://perma.cc/JY‌8W-ZL89]; Ned Oliver, Police Reforms Go into Effect in Virginia, Va. Mercury (Mar. 2, 2021, 12:05 AM), https://www.virginiamercury.com/blog-va/police-reforms-go-into-effect-in-virginia/ [https://perma.cc/V82Q-GGJK].Show More Overall, however, the spate of enactments since the nation’s response to the murder of George Floyd tend to be piecemeal at best.4 4.See, e.g., Liz Crampton, States Passed 243 Policing Bills—and Left Activists Wanting, Politico (May 26, 2021, 4:30 AM), https://www.politico.com/news/2021/05/26/states-policing-bills-490850 [https://perma.cc/D2CW-NHCN] (reporting activist frustration regarding limited reforms after George Floyd’s murder); Mark Berman & David Nakamura, From George Floyd to Tyre Nichols, Pleas for Police Reform Meet Bleak Reality, Wash. Post (Feb. 2, 2023, 7:05 PM), https://www.washingtonpost.com/national-security/2023/02/02/‌memphis-tyre-nichols-police-reform/ [https://perma.cc/XUT6-R7B7] (finding only a “patchwork series of reforms . . . scattered across some of America’s thousands of local police departments” while a “comprehensive approach remains out of reach”); Denise Lavoie, Tatyana Monnay & Juliette Rihl, Some States Are Struggling to Implement Policing Reforms Passed After George Floyd’s Murder, PBS NewsHour (Oct. 31, 2022, 11:50 AM), https://www.pbs.org/newshour/nation/some-states-are-struggling-to-implement-policing-reforms-passed-after-george-floyds-murder [https://perma.cc/7KPH-PQ55] (reporting on difficulties with implementing limited reforms).Show More Still, other jurisdictions have done less to increase fairness and reduce harm, as the horrific murder of Tyre Nichols by the “Scorpion Unit” in Memphis suggests.5 5.Even calling a street policing team “Scorpion” when it is charged with making numerous traffic stops underscores the problem. See Steve Eder et al., Muscle Cars, Balaclavas and Fists: How the Scorpions Rolled Through Memphis, N.Y. Times, https://www.nytimes.com/2023/‌02/04/us/memphis-police-scorpion.html [https://perma.cc/T2KX-JA2J] (Mar. 1, 2023) (describing the aggressive tactics of the Scorpion squad).Show More The fervor for police reform that began after George Floyd’s murder itself has cooled, and the national narrative—accurate or otherwise—shifted to another wave of rising crime.6 6.See, e.g., David A. Graham, How Criminal-Justice Reform Fell Apart, Atlantic (May 26, 2022), https://www.theatlantic.com/ideas/archive/2022/05/george-floyd-anniversary-police-reform-violent-crime/630174/ [https://perma.cc/4Q4A-E33M] (describing how rising crime rattled Americans’ confidence in police reform).Show More Only the federal government has the capacity to protect constitutional rights in the face of local diffidence or recalcitrance. That is its job.

If we really care about addressing the many serious problems with policing, at least for some aspects it will be faster and more effective to adopt one set of changes rather than 50, 18,000, or 24,000. If money and might are needed, the federal government has them. Yet the federal government’s resources and heft too often have been badly deployed.

Here, we offer some needed direction for federal involvement in local policing. We do that for Congress, which all too rarely has exercised its authority to set national rules for policing, or even authorized the executive branch to do so. And we do it for the executive branch, which, even with the existing authority it has, could do much more. We elaborate upon the need for national standards in some areas of policing, the value of information collection, and the utility of technical assistance and training, and call for more thought about how the federal government’s enforcement power is utilized. We are critical of the Supreme Court’s jurisprudence, to the extent it stands in the way.

None of what we suggest here is rocket science, however, which raises the question why the federal government’s performance in police reform has been so anemic. For that reason, besides putting forward an affirmative agenda, we devote substantial time to four explanations for why the federal government has not done its job. We cannot repair them all, but we can shine a light on them, offer pushback, and—at times—antidotes.

The first is a lack of political will. Federal authorities could address almost everything we suggest here, even in the face of some problematic Supreme Court jurisprudence. They simply seem not to be able to muster the wherewithal to do so. After George Floyd’s murder, Congress considered important legislation.7 7.See, e.g., Alexandra Hutzler, What Is the George Floyd Justice in Policing Act?, ABC News (Feb. 2, 2023, 1:49 PM), https://abcnews.go.com/Politics/george-floyd-justice-policing-act/story?id=96851132 [https://perma.cc/43J5-WQZ4] (explaining legislation proposed in Congress after George Floyd’s murder that was designed to address police misconduct, racial profiling, and use of force).Show More It was not unproblematic, and it was not enough, but it would have been a notable start. It went nowhere.8 8.George Floyd Justice in Policing Act of 2020, H.R. 7120, 116th Cong.Show More

You could think Congress failed to act because the public lost interest. Congress inevitably follows swings in public opinion.9 9.SeePaul Burstein, American Public Opinion, Advocacy, and Policy in Congress 46–49 (2014) (examining numerous research methodologies and concluding that “we find repeatedly that opinion influences policy” at both the federal and state levels).Show More In 2020, the public favored police reform.10 10.See Pew Rsch. Ctr., Majority of Public Favors Giving Civilians the Power to Sue Police Officers for Misconduct 1 (2020), https://www.pewresearch.org/politics/wp-content/uploads/‌sites/4/2020/07/PP_2020.07.09_Qualified-Immunity_FINAL.pdf [https://perma.cc/4U3U-CZTL] (finding that “[t]wo-thirds of Americans (66%) say that civilians need to have the power to sue police officers to hold them accountable for misconduct”); Steve Crabtree, Most Americans Say Policing Needs ‘Major Changes,’ Gallup (July 22, 2020), https://news.gallup.‌com/poll/315962/americans-say-policing-needs-major-changes.aspx [https://perma.cc/4NUJ-79F3] (finding that “58% of Americans say policing needs major changes”).Show More By 2022 they were concerned about crime.11 11.SeeJohn Gramlich, Violent Crime Is a Key Midterm Voting Issue, But What Does the Data Say?, Pew Rsch. Ctr. (Oct. 31, 2022), https://www.pewresearch.org/short-reads/2022/10/‌31/violent-crime-is-a-key-midterm-voting-issue-but-what-does-the-data-say/ [https://perma.‌cc/GDU3-TBDS] (“Around six-in-ten registered voters (61%) say violent crime is very important when making their decision about who to vote for in this year’s congressional elections.”); Megan Brenan, Record-High 56% in U.S. Perceive Local Crime Has Increased, Gallup (Oct. 28, 2022), https://news.gallup.com/poll/404048/record-high-perceive-local-crime-increased.aspx [https://perma.cc/6EMF-PMGK] (“The 56% of U.S. adults who report an increase in crime where they live . . . is the highest . . . in Gallup’s trend dating back to 1972.”).Show More In that case, one could argue Congress’s lack of political will reflected political responsiveness. But if that is what Congress was thinking, Congress was wrong. As the public recognizes, effective and accountable policing need not be in tension. Even as crime rates rose in 2021 and 2022, support for some forms of reform—and for the Black Lives Matter movement, for that matter—remained.12 12.See Justin McCarthy, Americans Remain Steadfast on Policing Reform Needs in 2022, Gallup (May 27, 2022), https://news.gallup.com/poll/393119/americans-remain-steadfast-policing-reform-needs-2022.aspx [https://perma.cc/8QQ4-YGW5] (“[H]alf of Americans (50%) support ‘major changes’ to policing in the U.S., and another 39% favor ‘minor changes.’”); Jennifer de Pinto, Anthony Salvanto, Fred Backus & Kabir Khanna, Most Americans Think Changes to Policing Are Necessary—CBS News Poll, CBS News (Feb. 5, 2023, 9:30 AM), https://www.cbsnews.com/news/policing-opinion-poll-2023-02-05/ [https://perma.cc/X65Y-7ZH6] (reporting that 47% of Americans support “major changes” to police practices, and 42% support “minor changes”); Juliana Menasce Horowitz, Kiley Hurst & Dana Braga, Support for the Black Lives Matter Movement Has Dropped Considerably From Its Peak in 2020, Pew Rsch. Ctr. (June 14, 2023), https://www.pewresearch.org/social-trends/2023/06/14/support-for-the-black-lives-matter-movement-has-dropped-considerably-from-its-peak-in-2020/ [https://perma.cc/P4JZ-QX93] (finding that despite decline in support, Black Lives Matter retains the support of fifty-one percent of Americans).Show More Polling shows widespread, bipartisan, non-ideological support for using first responders rather than police to address many problems such as mental health.13 13.SeeNatasha Chisholm & Anika Dandekar, Majorities of Voters Support Criminal Charges for Those Involved in Tyre Nichols’ Killing and a Range of Police Reforms, Data for Progress (Mar. 2, 2023), https://www.dataforprogress.org/blog/2023/3/2/majorities-of-voters-support-criminal-charges-for-those-involved-in-tyre-nichols-killing-and-a-range-of-policing-reforms [https://perma.cc/WFS2-PTQR] (finding that Americans prefer the use of first responders for mental health issues by a fifty-three-point margin); Justine Coleman, Most Say Police Shouldn’t Be Primary Responders for Mental Health Crises: NAMI Poll, Hill (Nov. 15, 2021, 11:10 AM), https://thehill.com/policy/healthcare/581556-majority-say-professionals-should-respond-to-mental-health-crises-instead/ [https://perma.cc/S7QW-WATB] (“[N]early 80 percent of respondents said mental health professionals, not police, should respond to mental health and suicide situations.”).Show More

Which brings us to the second explanation. Opponents of federal reform frequently claim that principles of constitutional federalism stand in the way.14 14.Much literature is devoted to parsing the federalism concerns raised as a result of congressional regulation of policing. See, e.g., W. Paul Koenig, Does Congress Abuse its Spending Clause Power by Attaching Conditions on the Receipt of Federal Law Enforcement Funds to a State’s Compliance with “Megan’s Law”?, 88 J. Crim. L. & Criminology 721, 741 (1998).Show More Some argue that it is improper for the federal government to tell local police how to do their job.15 15.See, e.g., 166 Cong. Rec. H2460 (daily ed. June 25, 2020) (statement of Rep. John H. Rutherford) (“We cannot be so eager to make major policing reforms on the Federal level that we overcorrect and prevent good officers on the street from being able to do their jobs.”); Kathleen F. Brickey, The Commerce Clause and Federalized Crime: A Tale of Two Thieves, 543 Annals Am. Acad. Pol. & Soc. Sci. 27, 38 (1996) (noting that the National Association of Attorneys General and the National Conference of State Legislatures “have urged Congress to recognize that primary responsibility for criminal law enforcement belongs to the states”); William Parlett, Criminal Law and Cooperative Federalism, 56 Am. Crim. L. Rev. 1663, 1665–66 (2019) (describing how cooperative prosecution programs concentrate too much power in the hands of federal executive branch officials and rob state and local communities of their “voice”).Show More And others go further, questioning whether the federal government has power under the Constitution to set the rules for policing.16 16.See, e.g., Manu Raju, Clare Foran & Ted Barrett, GOP and Democrats Clash Over Police Reform in Congress as Pressure for Action Mounts, CNN (June 16, 2020, 8:28 PM), https://www.cnn.com/2020/06/16/politics/police-reform-senate-republicans/index.html [https://perma.cc/KX7M-ZDNM] (reporting then-Senate Majority Leader Mitch McConnell’s opposition to federal police reform efforts as “overreach” and an attempt to “federalize all of these issues”); see also Richard A. Epstein, The Supreme Court, 1987 Term—Foreword: Unconstitutional Conditions, State Power, and the Limits of Consent, 102 Harv. L. Rev. 4, 45–46, 104 (1988) (raising concerns that Congress will use its spending powers to subvert the Twenty-First Amendment and Tenth Amendment such that “a presumption of distrust should attach to all government action”).Show More

As this Article makes clear, these views about federalism’s limits on federal power are wrong. Under our federal system, and the Supreme Court’s somewhat baroque federalism doctrine, Congress may have to choose with some care the right font of power to meet the particular problem. For racial discrimination and use of force, Section 5 of the Fourteenth Amendment should suffice. For surveillance technologies, resorting to the Commerce Clause in most cases would do the trick. Some approaches to regulating policing may escape Congress’s grasp, but for the most part, Congress has ample constitutional power to step in where it would be helpful to do so. And, of course, national standards and approaches do not eliminate state variation; they simply provide a floor.

The best evidence that federalism-based objections have little to support them is that the federal government already intervenes in deeply consequential ways to shape policing. It empowers local officers by deputizing them to federal ends. It pushes local agencies to pursue national public safety priorities, whether they be street-level drug enforcement, gun crime, or something else.17 17.See Roger J. Miner, The Consequences of Federalizing Criminal Law, 4 Crim. Just.16, 18 (1989) (describing expansion of federal jurisdiction to crimes including robbery, extortion, loan-sharking, and drug trafficking); Sara Sun Beale, Federalizing Crime: Assessing the Impact on the Federal Courts, 543 Annals Am. Acad. Pol. & Soc. Sci. 39, 42 (1996) (“Congress enacted a series of federal crimes that targeted violence against private individuals . . . to assert jurisdiction over an increasingly broad range of conduct clearly within the traditional police powers of the states.”); Partlett, supra note 15, at 1663 (“Cooperative federalism is now commonplace in the prosecution of street-level drug and gun crime . . . , [which] . . . weakens the ability of states to function as political entities that can hold their law enforcement officers accountable in an area of traditional state police power.”).Show More It provides local police with militarized equipment and tools for surveillance and incorporates their work into federal databases.18 18.See Allison McCartney, Paul Murray & Mira Rojanasakul, After Pouring Billions into Militarization of U.S. Cops, Congress Weighs Limits, Bloomberg (July 1, 2020), https://www.bloomberg.com/graphics/2020-police-military-equipment/ [https://perma.cc/‌C7V9-JUNF]; Jay Stanley & Bennett Stein, FOIA Documents Reveal Massive DEA Program to Record Americans’ Whereabouts with License Plate Readers, ACLU, https://www.aclu.org‌/news/smart-justice/foia-documents-reveal-massive-dea-program-record-americans-whereab‌outs-license [https://perma.cc/ZZ8D-UKDT] (Jan. 28, 2015) (explaining that the Drug Enforcement Administration (“DEA”) partners with state and local law enforcement agencies around the country to collect license plate location data for its database).Show More It trains officers to engage in deleterious practices like widespread pretextual traffic stops.19 19.See Farhang Heydari, The Invisible Driver of Policing, 76 Stan. L. Rev. (forthcoming 2024) (manuscript at 1–2) [hereinafter Heydari, The Invisible Driver of Policing], https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4369747 [https://perma.cc/5FYF-MZ‌FW].Show More The federal government meddles aplenty in local law enforcement without much objection from those who worry aloud about the federal government interfering in local policing. It seems only to rouse disagreement if the suggestion is the federal government should work to make policing more responsive to policed communities, more equitable, and less harmful. That one-way ratchet rests on an implausible account of “Our Federalism.”20 20.Younger v. Harris, 401 U.S. 37, 44 (1971) (“[T]he notion of ‘comity,’ that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways . . . is referred to by many as ‘Our Federalism’ . . . .”).Show More

The federal government’s already ample role in local policing highlights the third explanation for why it has not done what is needed to transform policing for the better, which is that some parts of the federal government themselves are resistant to change—to the point that the federal government is complicit in many of policing’s problems. When it comes to policing, there is a deep tension within the federal government as to what its role should be. On one hand, it has an obligation to protect civil rights and racial equality, a special role in preserving privacy, and the sole power to promote values such as democratic accountability and transparency at a national level. Some elements of the federal government pursue these ends, such as the Civil Rights Division and its Special Litigation Section.21 21.See Special Litigation Section, U.S. Dep’t of Just.: C.R. Div., https://www.justice.gov/‌crt/special-litigation-section [https://perma.cc/268W-7983] (last visited Sept. 24, 2023).Show More On the other hand, the federal government operates an enormous law enforcement apparatus, with dozens of agencies that depend on state and local cooperation.22 22.See Law Enforcement, Bureau of Just. Stats. (Feb. 18, 2021), https:/bjs.ojp.gov/topics/‌law-enforcement#recent-faqs-how-many-full-time-federal-law-enforcement [https://perma.c‌c/NJQ7-WNLX] (estimating that in 2020, there were 137,000 full-time federal law enforcement officers); see also Lisa M. Seghetti, Cong. Rsch. Serv., RL32270, Enforcing Immigration Law: The Role of State and Local Law Enforcement 3 (2009), https:/www.everycrsreport.com/files/20090311_RL32270_a7bbe8763684424b48f0d4b1d61‌c92412ac50d0c.pdf [https://perma.cc/N5AR-EBMB] (providing examples of cooperation between federal and local law enforcement on immigration); Michael M. Hethmon, The Chimera and the Cop: Local Enforcement of Federal Immigration Law, 8 UDC/DCSL L. Rev. 83, 139 (2004) (detailing high level of federal-local law enforcement cooperation).Show More That law enforcement apparatus does not seem particularly reform-minded; indeed, some federal agencies such as the Drug Enforcement Administration, Customs and Border Protection, and Immigration and Customs Enforcement are themselves particularly concerning.23 23.See, e.g., US Records Show Physical, Sexual Abuse at Border, Hum. Rts. Watch (Oct. 21, 2021, 7:00 AM), https://www.hrw.org/news/2021/10/21/us-records-show-physical-sexua‌l-abuse-border [https://perma.cc/Z97M-W5F5] (reporting on abuse by Customs and Border Protection officers, Border Patrol agents, and Immigration and Customs Enforcement officials); Stan Wilson, Daniel Chong, Forgotten in DEA Cell, Settles Suit for $4.1 Million, CNN (Aug. 1, 2013, 7:38 AM), https://www.cnn.com/2013/07/30/justice/california-dea-settle‌ment/ [https://perma.cc/B9XE-EP9P] (finding that DEA agents detained a student in a windowless cell with no food or water for five days).Show More Federal law enforcement has too often pursued its public safety priorities, such as the wars on crime and terrorism, and federal immigration enforcement, with little attention to the harms it causes. In short, while some parts of the federal government encourage reform, other parts of the federal government work against it.

The federal government—and many federal agencies—bear responsibility for many of the harms of policing. The federally driven War on Drugs garnered little in the way of success while shredding constitutional liberties and contributing to mass incarceration.24 24.See Aaron Morrison, 50-Year War on Drugs Imprisoned Millions of Black Americans, PBS NewsHour (July 26, 2021, 12:55 PM), https://www.pbs.org/newshour/nation/50-year-war-on-drugs-imprisoned-millions-of-black-americans [https://perma.cc/DZV2-H4DR] (noting that the federal government’s policies pursuant to the War on Drugs resulted in the mass incarceration of millions of Americans and undermined their access to voting and gun rights).Show More Today, asset forfeiture drives unjustifiable policing practices, yet federal agencies have done little to curtail it and much to promote it.25 25.See Jennifer McDonald & Dick M. Carpenter II, Frustrating, Corrupt, Unfair: Civil Forfeiture in the Words of Its Victims, Inst. for Just. (Sept. 28, 2021), https://ij.org/report/‌frustrating-corrupt-unfair/ [https://perma.cc/US2N-2YLE] (“Most states across the country, not to mention the federal government, continue to enforce civil forfeiture laws that offer few due process protections and promote policing for profit.”).Show More Tyre Nichols’s murder brought widespread public attention to the problem of pretextual traffic stops, but the federal government has and continues to promote them, causing harm and racial disparities.26 26.See generally Farhang Heydari, Rethinking Federal Inducement of Pretext Stops, 2024 Wis. L. Rev. (forthcoming) [hereinafter Heydari, Rethinking Federal Inducement of Pretext Stops] (cataloguing the ways in which federal agencies promote pretextual traffic stops); Heydari, The Invisible Driver of Policing, supra note 19 (calling attention to the National Highway and Traffic Safety Agency as a proponent of pretextual traffic stops).Show More The militarization of domestic policing is deeply troubling in a free society, and the federal government has driven that. Technology-driven surveillance is itself a threat to democracy and individual rights, and very much on the rise, and yet again federal agencies promote, supply, and fund these technologies with few guardrails on their use.27 27.See Chris Baumohl, Two Years In, COVID-19 Relief Money Fueling Rise of Police Surveillance, Elec. Priv. Info. Ctr. (Mar. 9, 2023), https://epic.org/two-years-in-covid-19-relie‌f-money-fueling-rise-of-police-surveillance/ [https://perma.cc/5VLG-Z5RM] (explaining that the expansion of surveillance technologies results from “federal funding, which lowers the cost of acquisition at the state and local level”).Show More One could go on and on.

To be clear, our claim here assuredly is not that the federal government should not help state and local governments in crime fighting. Small communities need help to be effective in addressing crime, all departments benefit from federal expertise about what works, and there are elements of crime that are both national and transnational. Each of these provides a classic justification for federal involvement in primarily local enterprises. It may well be warranted beyond that. Our claim, rather, is that the federal government must be concerned both with ensuring public safety from crime and ensuring public safety from the harms of policing. The simple fact is that policing is unlikely to be effective over time unless it also is fair, harm-minimizing, and accountable—and even if it could remain unaccountable, that simply is inconsistent with this nation’s broader democratic values. The War on Drugs and federally supported asset forfeiture are indicative of a distorted sense of balance, if not one altogether missing.

Which brings us to the final explanation, and one on which we have a great deal to say, which is that the federal government has over-relied on an approach to addressing the harms of policing that rests in conditions on grants and civil rights enforcement, while undervaluing other approaches such as standard setting and regulation, or even ensuring that the federal government’s policing strategy is internally coherent. Do not get us wrong—enforcement is essential to ensuring the rules of the road obtain adherence. But what the federal government has done for too long is not set out the rules of the road, relying instead on the minimalist notion of policing regulation set out in the Supreme Court’s constitutional jurisprudence.28 28.But see Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety, Exec. Order No. 14,074, 87 Fed. Reg. 32945, 32961 (May 25, 2022) (requiring the Attorney General to develop standards for accreditation of police departments by independent credentialing agencies and to determine if discretionary grants should depend on accreditation).Show More Yet, as every first-year law student learns, the Constitution is a floor; it indicates what must be done, but often lacks any notion of aspiration or best practices.

The federal government’s lackluster role in improving policing is in part a result of its piecemeal, reactive approach. When bad things in policing happen, for example, the Civil Rights Division prosecutes individual officers. Or it investigates and sues some deeply troubled departments.29 29.See C.R. Div., U.S. Dep’t of Just., The Civil Rights Division’s Pattern and Practice Police Reform Work: 1994–Present, at 3 (2017) [hereinafter C.R. Div., Police Reform Work: 1994–Present], https://www.justice.gov/crt/file/922421/download [https://perma.cc/LQN3-RME7] (describing the work of the Special Litigation Section).Show More Enforcement is important, though it could be done more strategically.30 30.See Rachel A. Harmon, Promoting Civil Rights Through Proactive Policing Reform, 62 Stan. L. Rev. 1, 22, 26–27, 57–58 (2009) [hereinafter Harmon, Promoting Civil Rights] (arguing that the use of consent decrees, which frequently include certain requirements, such as training and policies on use of force, can incentivize other agencies to adopt such reforms); Allison T. Chappell, Consent Decrees and Police Reform: A Piece of the Puzzle or a Puzzling Policy, 16 Criminology & Pub. Pol’y 571, 572 (2017) (finding that consent decrees can lead to policy change because police departments seek to avoid DOJ scrutiny).Show More But litigating our way out of policing’s problems is a doomed enterprise. The Department of Justice (“DOJ”) only can target a few troubled agencies or officers. The federal government also encourages some reform through grant programs and their conditions. But these efforts lack coherence, consistency, and comprehensiveness. They do far less than they ought.

Simply put, the federal government in the main has failed to set rules and standards that local policing agencies either must meet, or at least should aspire to meet.31 31.President Biden’s Executive Order (“EO”) has a provision fostering accreditation of policing agencies, which could be the beginning of standard setting, although those accreditation standards as adopted by DOJ were insufficiently demanding. See infra notes 354–55 and accompanying text.Show More It has not collected or even made possible uniformity in data so that we can identify problems in local policing, and their solutions. If anything became clear in the aftermath of the killing of George Floyd—and should have been clear long before—it is that policing needs to be regulated with clear front-end rules, or at least provided with coherent guidance. As we indicated, states have taken up some of the work, but in piecemeal fashion. The federal government could and should—and indeed must—do more to bring needed cohesion and real progress.

There is no gainsaying that President Biden’s May 2022 Executive Order (“EO”) on policing was a step in the right direction.32 32.Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety, Exec. Order No. 14,074, 87 Fed. Reg. 32945 (May 25, 2022).Show More It announced some efforts to bring federal agencies into line with best practices, some leadership in promoting nationwide accountability, and some effort to identify and promote best practices for local police departments. Even if radically incomplete, it was the most the nation ever has seen aspirationally about addressing real harms in policing. But orders are not action: a reform-oriented Trump order on policing had almost no effect.33 33.See Jon Schuppe, Trump Says His Policing Order Is a ‘Big Step.’ Activists Call It ‘Breadcrumbs.’, NBC News (June 17, 2020, 10:35 AM), https://www.nbcnews.com/news/us-news/trump-says-his-policing-order-big-step-activists-call-it-n1231269 [https://perma.cc/PR‌9G-ZQYR] (noting that Trump’s executive order concerning policing after George Floyd’s murder was “paltry”).Show More Only time will tell if the Biden Executive Order accomplishes what it set out to do.34 34.One year in, the federal government released a long list of the actions it had taken, and we do not mean in any way to minimize their import. See Fact Sheet: Biden-⁠Harris Administration Highlights Accomplishments on Anniversary of Historic Executive Order to Advance Effective, Accountable Policing and Strengthen Public Safety, White House (May 25, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/25/fact-sheet-biden-harris-administration-highlights-accomplishments-on-anniversary-of-historic-executive-order-to-advance-effective-accountable-policing-and-strengthen-public-safety/ [https://perma.cc/U4HM-WNPR] (highlighting actions taken under EO 14,074, including the creation of the “National Law Enforcement Accountability Database,” the adoption of new federal law enforcement use of force policies, and grants to local law enforcement “to adopt and implement best practices” in policing). Every step in the right direction is a step in the right direction. Still, much of that list itself was a down payment on enormous work yet to be done.Show More And even if it does—there is plenty more to be done, as the EO itself acknowledges.35 35.See Exec. Order No. 14,074, 87 Fed. Reg. at 32945.Show More

This Article argues the federal government can and should foster change in policing and provides guidance as to what the federal government should do. The federal government has ample constitutional power to address the problems of local policing—sometimes acting along and sometimes in collaboration with state and local authorities. We at times suggest a regulatory approach, best achieved by setting rules and standards that guide local policing. We show how, when regulation would be inappropriate or ineffective, the federal government should use its other powers to achieve change. We strongly urge the federal government to adopt a coherent approach to policing—that, above all else, the federal government should stop using the power that it has in deleterious ways, exacerbating the problems of local policing even while claiming a desire to address them.

Part I of this Article is addressed to the question of need—where and why is federal intervention in local policing needed, and what should that federal role look like? It frames up three paradigmatic areas in which there is widespread consensus policing needs to change: excessive force by the police, racial discrimination in policing, and the use of surveillance technologies. It shows that state and local governments often are incapable of, or unwilling to, address the problems alone, thereby highlighting the vital role the federal government has to play. And it begins an exploration of what it is the federal government should do.

Part II turns to regulation and the role Congress should play in requiring better local policing. It sets out a minimal agenda for Congress in the three paradigmatic problem areas. But one cannot discuss congressional action without discussing constitutional power as well, thus implicating the Supreme Court. Part II acknowledges that Supreme Court precedent poses challenges to the exercise of federal power and critiques the doctrine accordingly. Still, it demonstrates that Congress has more than ample power to address what needs to be done. It explains how Congress could use this power to mitigate those problems of excessive force, undue surveillance, and racial injustice in policing.

Part III turns to the executive branch. If Congress does not act, or even if it does, the executive branch could do much with its discretion to set a national agenda, to enforce civil rights law, to implement federal programs, and to run federal law enforcement agencies to make policing better. The executive branch needs to promote a consistent, coherent approach to policing, one that supports policing that is fair, harm minimizing, and accountable as well as effective. But it also needs to stop doing things that make policing less equitable, less effective, and more harmful. Part III lays all this out.

The federal government is not going to fix everything that needs to be remedied around policing. But it could act to do less harm and reform policing substantially, even as it promotes effective efforts to address crime. It is time for federal officials at the legislative and executive level to take seriously their power and responsibility to address the harms of local policing.

  1.  These numbers obviously are approximations and vary from year to year. See Press Release, U.S. Census Bureau, U.S. Census Bureau Reports There Are 89,004 Local Governments in the United States (Aug. 30, 2012), https://www.census.gov/newsroom/‌releases/archives/governments/cb12-161.html [https://perma.cc/HJH6-QHV7] (number of cities and counties in 2012 Census); Duren Banks, Joshua Hendrix, Matthew Hickman & Tracey Kyckelhahn, Bureau of Just. Stats., U.S. Dep’t of Just., National Sources of Law Enforcement Employment Data 1 (2016), https://bjs.ojp.gov/content/pub/pdf/nsleed.pdf [https://perma.cc/6ZJW-8RCF] (reporting that there are about 18,000 police departments). ↑
  2.  See Sean E. Goodison, Bureau of Just. Stats., U.S. Dep’t of Just., Local Police Departments Personnel, 2020, at 3 (2022) [hereinafter Goodison, Local Police Departments Personnel], https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/document/lpdp20.pdf [https://perma.‌cc/4MUQ-8KHV]; Connor Brooks, Bureau of Just. Stats., U.S. Dep’t of Just., Sheriffs’ Offices Personnel, 2020, at 3 (2022), https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/‌document/sop20.pdf [https://perma.cc/A5NL-X8WY]. Maria Ponomarenko has provided one of the best accounts of the challenges of small agencies. See generally Maria Ponomarenko, The Small Agency Problem in American Policing, 98 N.Y.U. L. Rev. (forthcoming 2024), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4537989 [https://perma.cc/J3E3-K9‌CN]. ↑
  3.  See, e.g., Jennifer Brown & Jesse Paul, Colorado Governor Signs Sweeping Police Accountability Bill into Law. Here’s How It Will Change Law Enforcement., Colo. Sun (June 19, 2020, 9:53 AM), https://coloradosun.com/2020/06/19/colorado-police-accountability-bill-becomes-law/ [https://perma.cc/JNV4-9KM8]; Michael Levenson & Bryan Pietsch, Maryland Passes Sweeping Police Reform Legislation, N.Y. Times (Apr. 10, 2021), https://www.nytimes.com/2021/04/10/us/maryland-police-reform.html [https://perma.cc/JY‌8W-ZL89]; Ned Oliver, Police Reforms Go into Effect in Virginia, Va. Mercury (Mar. 2, 2021, 12:05 AM), https://www.virginiamercury.com/blog-va/police-reforms-go-into-effect-in-virginia/ [https://perma.cc/V82Q-GGJK]. ↑
  4.  See, e.g., Liz Crampton, States Passed 243 Policing Bills—and Left Activists Wanting, Politico (May 26, 2021, 4:30 AM), https://www.politico.com/news/2021/05/26/states-policing-bills-490850 [https://perma.cc/D2CW-NHCN] (reporting activist frustration regarding limited reforms after George Floyd’s murder); Mark Berman & David Nakamura, From George Floyd to Tyre Nichols, Pleas for Police Reform Meet Bleak Reality, Wash. Post (Feb. 2, 2023, 7:05 PM), https://www.washingtonpost.com/national-security/2023/02/02/‌memphis-tyre-nichols-police-reform/ [https://perma.cc/XUT6-R7B7] (finding only a “patchwork series of reforms . . . scattered across some of America’s thousands of local police departments” while a “comprehensive approach remains out of reach”); Denise Lavoie, Tatyana Monnay & Juliette Rihl, Some States Are Struggling to Implement Policing Reforms Passed After George Floyd’s Murder, PBS NewsHour (Oct. 31, 2022, 11:50 AM), https://www.pbs.org/newshour/nation/some-states-are-struggling-to-implement-policing-reforms-passed-after-george-floyds-murder [https://perma.cc/7KPH-PQ55] (reporting on difficulties with implementing limited reforms). ↑
  5.  Even calling a street policing team “Scorpion” when it is charged with making numerous traffic stops underscores the problem. See Steve Eder et al., Muscle Cars, Balaclavas and Fists: How the Scorpions Rolled Through Memphis, N.Y. Times, https://www.nytimes.com/2023/‌02/04/us/memphis-police-scorpion.html [https://perma.cc/T2KX-JA2J] (Mar. 1, 2023) (describing the aggressive tactics of the Scorpion squad). ↑
  6.  See, e.g., David A. Graham, How Criminal-Justice Reform Fell Apart, Atlantic (May 26, 2022), https://www.theatlantic.com/ideas/archive/2022/05/george-floyd-anniversary-police-reform-violent-crime/630174/ [https://perma.cc/4Q4A-E33M] (describing how rising crime rattled Americans’ confidence in police reform). ↑
  7.  See, e.g., Alexandra Hutzler, What Is the George Floyd Justice in Policing Act?, ABC News (Feb. 2, 2023, 1:49 PM), https://abcnews.go.com/Politics/george-floyd-justice-policing-act/story?id=96851132 [https://perma.cc/43J5-WQZ4] (explaining legislation proposed in Congress after George Floyd’s murder that was designed to address police misconduct, racial profiling, and use of force). ↑
  8.  George Floyd Justice in Policing Act of 2020, H.R. 7120, 116th Cong. ↑
  9.  See Paul Burstein, American Public Opinion, Advocacy, and Policy in Congress 46–49 (2014) (examining numerous research methodologies and concluding that “we find repeatedly that opinion influences policy” at both the federal and state levels). ↑
  10.  See Pew Rsch. Ctr., Majority of Public Favors Giving Civilians the Power to Sue Police Officers for Misconduct 1 (2020), https://www.pewresearch.org/politics/wp-content/uploads/‌sites/4/2020/07/PP_2020.07.09_Qualified-Immunity_FINAL.pdf [https://perma.cc/4U3U-CZTL] (finding that “[t]wo-thirds of Americans (66%) say that civilians need to have the power to sue police officers to hold them accountable for misconduct”); Steve Crabtree, Most Americans Say Policing Needs ‘Major Changes,’ Gallup (July 22, 2020), https://news.gallup.‌com/poll/315962/americans-say-policing-needs-major-changes.aspx [https://perma.cc/4NUJ-79F3] (finding that “58% of Americans say policing needs major changes”). ↑
  11.  See John Gramlich, Violent Crime Is a Key Midterm Voting Issue, But What Does the Data Say?, Pew Rsch. Ctr. (Oct. 31, 2022), https://www.pewresearch.org/short-reads/2022/10/‌31/violent-crime-is-a-key-midterm-voting-issue-but-what-does-the-data-say/ [https://perma.‌cc/GDU3-TBDS] (“Around six-in-ten registered voters (61%) say violent crime is very important when making their decision about who to vote for in this year’s congressional elections.”); Megan Brenan, Record-High 56% in U.S. Perceive Local Crime Has Increased, Gallup (Oct. 28, 2022), https://news.gallup.com/poll/404048/record-high-perceive-local-crime-increased.aspx [https://perma.cc/6EMF-PMGK] (“The 56% of U.S. adults who report an increase in crime where they live . . . is the highest . . . in Gallup’s trend dating back to 1972.”). ↑
  12.  See Justin McCarthy, Americans Remain Steadfast on Policing Reform Needs in 2022, Gallup (May 27, 2022), https://news.gallup.com/poll/393119/americans-remain-steadfast-policing-reform-needs-2022.aspx [https://perma.cc/8QQ4-YGW5] (“[H]alf of Americans (50%) support ‘major changes’ to policing in the U.S., and another 39% favor ‘minor changes.’”); Jennifer de Pinto, Anthony Salvanto, Fred Backus & Kabir Khanna, Most Americans Think Changes to Policing Are Necessary—CBS News Poll, CBS News (Feb. 5, 2023, 9:30 AM), https://www.cbsnews.com/news/policing-opinion-poll-2023-02-05/ [https://perma.cc/X65Y-7ZH6] (reporting that 47% of Americans support “major changes” to police practices, and 42% support “minor changes”); Juliana Menasce Horowitz, Kiley Hurst & Dana Braga, Support for the Black Lives Matter Movement Has Dropped Considerably From Its Peak in 2020, Pew Rsch. Ctr. (June 14, 2023), https://www.pewresearch.org/social-trends/2023/06/14/support-for-the-black-lives-matter-movement-has-dropped-considerably-from-its-peak-in-2020/ [https://perma.cc/P4JZ-QX93] (finding that despite decline in support, Black Lives Matter retains the support of fifty-one percent of Americans). ↑
  13.  See Natasha Chisholm & Anika Dandekar, Majorities of Voters Support Criminal Charges for Those Involved in Tyre Nichols’ Killing and a Range of Police Reforms, Data for Progress (Mar. 2, 2023), https://www.dataforprogress.org/blog/2023/3/2/majorities-of-voters-support-criminal-charges-for-those-involved-in-tyre-nichols-killing-and-a-range-of-policing-reforms [https://perma.cc/WFS2-PTQR] (finding that Americans prefer the use of first responders for mental health issues by a fifty-three-point margin); Justine Coleman, Most Say Police Shouldn’t Be Primary Responders for Mental Health Crises: NAMI Poll, Hill (Nov. 15, 2021, 11:10 AM), https://thehill.com/policy/healthcare/581556-majority-say-professionals-should-respond-to-mental-health-crises-instead/ [https://perma.cc/S7QW-WATB] (“[N]early 80 percent of respondents said mental health professionals, not police, should respond to mental health and suicide situations.”). ↑
  14.  Much literature is devoted to parsing the federalism concerns raised as a result of congressional regulation of policing. See, e.g., W. Paul Koenig, Does Congress Abuse its Spending Clause Power by Attaching Conditions on the Receipt of Federal Law Enforcement Funds to a State’s Compliance with “Megan’s Law”?, 88 J. Crim. L. & Criminology 721, 741 (1998). ↑
  15.  See, e.g., 166 Cong. Rec. H2460 (daily ed. June 25, 2020) (statement of Rep. John H. Rutherford) (“We cannot be so eager to make major policing reforms on the Federal level that we overcorrect and prevent good officers on the street from being able to do their jobs.”); Kathleen F. Brickey, The Commerce Clause and Federalized Crime: A Tale of Two Thieves, 543 Annals Am. Acad. Pol. & Soc. Sci. 27, 38 (1996) (noting that the National Association of Attorneys General and the National Conference of State Legislatures “have urged Congress to recognize that primary responsibility for criminal law enforcement belongs to the states”); William Parlett, Criminal Law and Cooperative Federalism, 56 Am. Crim. L. Rev. 1663, 1665–66 (2019) (describing how cooperative prosecution programs concentrate too much power in the hands of federal executive branch officials and rob state and local communities of their “voice”). ↑
  16.  See, e.g., Manu Raju, Clare Foran & Ted Barrett, GOP and Democrats Clash Over Police Reform in Congress as Pressure for Action Mounts, CNN (June 16, 2020, 8:28 PM), https://www.cnn.com/2020/06/16/politics/police-reform-senate-republicans/index.html [https://perma.cc/KX7M-ZDNM] (reporting then-Senate Majority Leader Mitch McConnell’s opposition to federal police reform efforts as “overreach” and an attempt to “federalize all of these issues”); see also Richard A. Epstein, The Supreme Court, 1987 Term—Foreword: Unconstitutional Conditions, State Power, and the Limits of Consent, 102 Harv. L. Rev. 4, 45–46, 104 (1988) (raising concerns that Congress will use its spending powers to subvert the Twenty-First Amendment and Tenth Amendment such that “a presumption of distrust should attach to all government action”). ↑
  17.  See Roger J. Miner, The Consequences of Federalizing Criminal Law, 4 Crim. Just. 16, 18 (1989) (describing expansion of federal jurisdiction to crimes including robbery, extortion, loan-sharking, and drug trafficking); Sara Sun Beale, Federalizing Crime: Assessing the Impact on the Federal Courts, 543 Annals Am. Acad. Pol. & Soc. Sci. 39, 42 (1996) (“Congress enacted a series of federal crimes that targeted violence against private individuals . . . to assert jurisdiction over an increasingly broad range of conduct clearly within the traditional police powers of the states.”); Partlett, supra note 15, at 1663 (“Cooperative federalism is now commonplace in the prosecution of street-level drug and gun crime . . . , [which] . . . weakens the ability of states to function as political entities that can hold their law enforcement officers accountable in an area of traditional state police power.”). ↑
  18.  See Allison McCartney, Paul Murray & Mira Rojanasakul, After Pouring Billions into Militarization of U.S. Cops, Congress Weighs Limits, Bloomberg (July 1, 2020), https://www.bloomberg.com/graphics/2020-police-military-equipment/ [https://perma.cc/‌C7V9-JUNF]; Jay Stanley & Bennett Stein, FOIA Documents Reveal Massive DEA Program to Record Americans’ Whereabouts with License Plate Readers, ACLU, https://www.aclu.org‌/news/smart-justice/foia-documents-reveal-massive-dea-program-record-americans-whereab‌outs-license [https://perma.cc/ZZ8D-UKDT] (Jan. 28, 2015) (explaining that the Drug Enforcement Administration (“DEA”) partners with state and local law enforcement agencies around the country to collect license plate location data for its database). ↑
  19.  See Farhang Heydari, The Invisible Driver of Policing, 76 Stan. L. Rev. (forthcoming 2024) (manuscript at 1–2) [hereinafter Heydari, The Invisible Driver of Policing], https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4369747 [https://perma.cc/5FYF-MZ‌FW]. ↑
  20.  Younger v. Harris, 401 U.S. 37, 44 (1971) (“[T]he notion of ‘comity,’ that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways . . . is referred to by many as ‘Our Federalism’ . . . .”). ↑
  21.  See Special Litigation Section, U.S. Dep’t of Just.: C.R. Div., https://www.justice.gov/‌crt/special-litigation-section [https://perma.cc/268W-7983] (last visited Sept. 24, 2023). ↑
  22.  See Law Enforcement, Bureau of Just. Stats. (Feb. 18, 2021), https:/bjs.ojp.gov/topics/‌law-enforcement#recent-faqs-how-many-full-time-federal-law-enforcement [https://perma.c‌c/NJQ7-WNLX] (estimating that in 2020, there were 137,000 full-time federal law enforcement officers); see also Lisa M. Seghetti, Cong. Rsch. Serv., RL32270, Enforcing Immigration Law: The Role of State and Local Law Enforcement 3 (2009), https:/www.everycrsreport.com/files/20090311_RL32270_a7bbe8763684424b48f0d4b1d61‌c92412ac50d0c.pdf [https://perma.cc/N5AR-EBMB] (providing examples of cooperation between federal and local law enforcement on immigration); Michael M. Hethmon, The Chimera and the Cop: Local Enforcement of Federal Immigration Law, 8 UDC/DCSL L. Rev. 83, 139 (2004) (detailing high level of federal-local law enforcement cooperation). ↑
  23.  See, e.g., US Records Show Physical, Sexual Abuse at Border, Hum. Rts. Watch (Oct. 21, 2021, 7:00 AM), https://www.hrw.org/news/2021/10/21/us-records-show-physical-sexua‌l-abuse-border [https://perma.cc/Z97M-W5F5] (reporting on abuse by Customs and Border Protection officers, Border Patrol agents, and Immigration and Customs Enforcement officials); Stan Wilson, Daniel Chong, Forgotten in DEA Cell, Settles Suit for $4.1 Million, CNN (Aug. 1, 2013, 7:38 AM), https://www.cnn.com/2013/07/30/justice/california-dea-settle‌ment/ [https://perma.cc/B9XE-EP9P] (finding that DEA agents detained a student in a windowless cell with no food or water for five days). ↑
  24.  See Aaron Morrison, 50-Year War on Drugs Imprisoned Millions of Black Americans, PBS NewsHour (July 26, 2021, 12:55 PM), https://www.pbs.org/newshour/nation/50-year-war-on-drugs-imprisoned-millions-of-black-americans [https://perma.cc/DZV2-H4DR] (noting that the federal government’s policies pursuant to the War on Drugs resulted in the mass incarceration of millions of Americans and undermined their access to voting and gun rights). ↑
  25.  See Jennifer McDonald & Dick M. Carpenter II, Frustrating, Corrupt, Unfair: Civil Forfeiture in the Words of Its Victims, Inst. for Just. (Sept. 28, 2021), https://ij.org/report/‌frustrating-corrupt-unfair/ [https://perma.cc/US2N-2YLE] (“Most states across the country, not to mention the federal government, continue to enforce civil forfeiture laws that offer few due process protections and promote policing for profit.”). ↑
  26.  See generally Farhang Heydari, Rethinking Federal Inducement of Pretext Stops, 2024 Wis. L. Rev. (forthcoming) [hereinafter Heydari, Rethinking Federal Inducement of Pretext Stops] (cataloguing the ways in which federal agencies promote pretextual traffic stops); Heydari, The Invisible Driver of Policing, supra note 19 (calling attention to the National Highway and Traffic Safety Agency as a proponent of pretextual traffic stops). ↑
  27.  See Chris Baumohl, Two Years In, COVID-19 Relief Money Fueling Rise of Police Surveillance, Elec. Priv. Info. Ctr. (Mar. 9, 2023), https://epic.org/two-years-in-covid-19-relie‌f-money-fueling-rise-of-police-surveillance/ [https://perma.cc/5VLG-Z5RM] (explaining that the expansion of surveillance technologies results from “federal funding, which lowers the cost of acquisition at the state and local level”). ↑
  28.  But see Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety, Exec. Order No. 14,074, 87 Fed. Reg. 32945, 32961 (May 25, 2022) (requiring the Attorney General to develop standards for accreditation of police departments by independent credentialing agencies and to determine if discretionary grants should depend on accreditation). ↑
  29.  See C.R. Div., U.S. Dep’t of Just., The Civil Rights Division’s Pattern and Practice Police Reform Work: 1994–Present, at 3 (2017) [hereinafter C.R. Div., Police Reform Work: 1994–Present], https://www.justice.gov/crt/file/922421/download [https://perma.cc/LQN3-RME7] (describing the work of the Special Litigation Section). ↑
  30.  See Rachel A. Harmon, Promoting Civil Rights Through Proactive Policing Reform, 62 Stan. L. Rev. 1, 22, 26–27, 57–58 (2009) [hereinafter Harmon, Promoting Civil Rights] (arguing that the use of consent decrees, which frequently include certain requirements, such as training and policies on use of force, can incentivize other agencies to adopt such reforms); Allison T. Chappell, Consent Decrees and Police Reform: A Piece of the Puzzle or a Puzzling Policy, 16 Criminology & Pub. Pol’y 571, 572 (2017) (finding that consent decrees can lead to policy change because police departments seek to avoid DOJ scrutiny). ↑
  31.  President Biden’s Executive Order (“EO”) has a provision fostering accreditation of policing agencies, which could be the beginning of standard setting, although those accreditation standards as adopted by DOJ were insufficiently demanding. See infra notes 354–55 and accompanying text. ↑
  32.  Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety, Exec. Order No. 14,074, 87 Fed. Reg. 32945 (May 25, 2022). ↑
  33.  See Jon Schuppe, Trump Says His Policing Order Is a ‘Big Step.’ Activists Call It ‘Breadcrumbs.’, NBC News (June 17, 2020, 10:35 AM), https://www.nbcnews.com/news/us-news/trump-says-his-policing-order-big-step-activists-call-it-n1231269 [https://perma.cc/PR‌9G-ZQYR] (noting that Trump’s executive order concerning policing after George Floyd’s murder was “paltry”). ↑
  34.  One year in, the federal government released a long list of the actions it had taken, and we do not mean in any way to minimize their import. See Fact Sheet: Biden-⁠Harris Administration Highlights Accomplishments on Anniversary of Historic Executive Order to Advance Effective, Accountable Policing and Strengthen Public Safety, White House (May 25, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/25/fact-sheet-biden-harris-administration-highlights-accomplishments-on-anniversary-of-historic-executive-order-to-advance-effective-accountable-policing-and-strengthen-public-safety/ [https://perma.cc/U4HM-WNPR] (highlighting actions taken under EO 14,074, including the creation of the “National Law Enforcement Accountability Database,” the adoption of new federal law enforcement use of force policies, and grants to local law enforcement “to adopt and implement best practices” in policing). Every step in the right direction is a step in the right direction. Still, much of that list itself was a down payment on enormous work yet to be done. ↑

  35.  See Exec. Order No. 14,074, 87 Fed. Reg. at 32945. ↑

Collateral Effects of Habeas Retrogression

Prisoners in state custody currently have two avenues to challenge violations of their constitutional rights: petitions for habeas corpus and suits under 42 U.S.C. § 1983. Although the two sometimes overlap, courts have held that § 1983 suits are not available to challenge most constitutional violations that could also be addressed through petitions for habeas corpus. This has excised a substantial category of constitutional violations from § 1983’s scope. Most prominently, any constitutional violation that results in incarceration can only be challenged through habeas corpus, and not through § 1983. In his recent concurrence in Edwards v. Vannoy, Justice Gorsuch suggested a new approach for federal courts evaluating habeas petitions by state prisoners. In his reading, the writ of habeas corpus only allows courts to grant prisoners relief if the court that convicted them lacked jurisdiction. To Justice Gorsuch, constitutional violations that result in incarceration are not grounds for habeas relief, or even habeas inquiry. In this Note, I take Justice Gorsuch’s statement to that effect at face value and explore the necessary implications of his newly proposed regime for habeas corpus. I conclude that if habeas corpus were held to not provide an avenue to challenge violations of constitutional rights, the Supreme Court’s cases limiting § 1983 suits by state prisoners because of the availability of habeas relief would implicitly be overruled. I then demonstrate that state prisoners would often benefit from raising their challenges as § 1983 suits rather than in habeas petitions.

Introduction

In 1871, Congress enacted the third Force Act,1 1.Enforcement Act of 1871, ch. 22, § 1, 17 Stat. 13; see also Monroe v. Pape, 365 U.S. 167, 174 (1961) (describing enactment of the Act and its purpose).Show More also called the third Ku Klux Klan Act, and now widely known as the Civil Rights Act.2 2.Zanita E. Fenton, Disarming State Action; Discharging State Responsibility, 52 Harv. C.R.-C.L. L. Rev. 47, 53–54 (2017).Show More The Act, for the first time, allowed federal lawsuits against state actors who were alleged to have violated the federal constitutional3 3.The Act is also now understood to allow suits based on violations of other federal, non-constitutional rights. See Maine v. Thiboutot, 448 U.S. 1, 7–8 (1980). For the purposes of this Note, however, the ability to bring suit challenging constitutional violations is more relevant.Show More rights of individuals.4 4.See Tiffany R. Wright, Ciarra N. Carr & Jade W.P. Gasek, Truth and Reconciliation: The Ku Klux Klan Hearings of 1871 and the Genesis of Section 1983, 126 Dick. L. Rev. 685, 686 (2022).Show More Prior to its enactment, the only recourse available to someone suffering constitutional injury at the hands of a state was a suit against the state actor under state law. But in cases where a federal constitutional right was violated by a state actor who did not happen to concurrently violate an analogous state law, no remedy was previously available at all.5 5.See Monroe, 365 U.S. at 196 & n.5.Show More The centerpiece of the Act is now codified at 42 U.S.C. § 1983.6 6.42 U.S.C. § 1983.Show More That statute allows suits by individuals for injunction or damages against those acting “under color of” state law who are alleged to have committed a civil rights violation.7 7.Id.Show More

The Ku Klux Klan Act was enacted against a backdrop of rampant violence and lawlessness in the southern states following the Civil War.8 8.Some of the atrocities were described in a letter from President Grant to Congress, within which he reproduced a message from a general stationed in Georgia. See S. Exec. Doc. No. 41-3, at 2 (1869) [hereinafter Presidential Letter] (“[W]ere the most worthless vagabond . . . to be charged with a crime against . . . a negro, neither he nor any other . . . would dare . . . to testify against [the offender], whatever might be their knowledge of his guilt.”).Show More Recently freed slaves and white Republicans were often the targets,9 9.Id. (“[M]ost of the numerous outrages upon freedmen result from hostility to the race, induced by their enfranchisement.”); S. Rep. No. 42-1, at 116 (1871) (“[T]here has been considerable apprehension on the part of the freedmen in regard to their personal safety.”).Show More and state officials—magistrates, constables, sheriffs, and others—were often complicit.10 10.See Presidential Letter, supra note 8, at 2 (“Murders have been . . . frequent. . . . There is great reason to believe that in some cases local magistrates are in sympathy with the members of these organizations.”); S. Rep. No. 42-1, at 83 (1871) (“The sheriff belongs to the organization, and so do his deputies.”); id. (“Question: Are the constables all members of it? Answer: Not quite all.”).Show More A key problem that the Act addressed was the inability of the criminal justice system in the South to protect the interests of Black citizens. This manifested both in crimes against Black citizens going unpunished and in Black citizens’ being faced with an unfair and unjust legal system when they themselves were the defendants.11 11.See Presidential Letter, supra note 8, at 2; see also Blyew v. United States, 80 U.S. (13 Wall.) 581, 583 (1871) (finding that no witnesses were allowed to testify at trial of Black woman’s murderer because all witnesses were Black); Strauder v. West Virginia, 100 U.S. 303, 304 (1879) (describing West Virginia law prohibiting Black citizens from serving on juries); Virginia v. Rives, 100 U.S. 313, 315 (1879) (“The petitioners further represented that their race had never been allowed the right to serve as jurors . . . in the county of Patrick, in any case, civil or criminal.”).Show More

Only a few years before, Congress had enacted the Habeas Corpus Act of 1867,12 12.Act of Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385.Show More which addressed similar concerns. Also for the first time, it extended the availability of federal court review to those incarcerated in state prisons or otherwise in state custody.13 13.Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 465 (1963).Show More Although the protections of the Great Writ had been constitutionally enshrined since the Founding,14 14.U.S. Const. art. I, § 9, cl. 2.Show More federal habeas corpus could previously only be invoked by those in federal custody.15 15.Bator, supra note 13, at 465.Show More

The enactment of these two statutes was a moment of promise for the post-Civil War Congress. The Acts represented a commitment by the federal government to offer protection to some of the country’s most marginalized citizens. Individuals who had previously found courts fundamentally inimical to their interests now had an avenue to seek redress for the wrongs they suffered at the hands of powerful actors.

A hundred and fifty years later, both congressional acts have fallen into judicial disfavor. The right of action under § 1983 has been heavily qualified by the application of numerous immunity doctrines that either shield state actors absolutely or protect all but the most egregious offenders.16 16.See, e.g., John C. Jeffries, Jr. & George A. Rutherglen, Structural Reform Revisited, 95 Calif. L. Rev. 1387, 1402 (2007) (“As administered by the courts, qualified immunity shields a vast range of garden-variety unconstitutionality from vindication through money damages.”); id. at 1390 n.12 (“The absolute immunity afforded those exercising legislative, judicial, and prosecutorial functions also has been criticized.”).Show More And the once-great writ of habeas corpus has been so riddled with technical, procedural requirements and exemptions that, for most, it might as well not exist at all.17 17.See Bryan A. Stevenson, The Politics of Fear and Death: Successive Problems in Capital Federal Habeas Corpus Cases, 77 N.Y.U. L. Rev. 699, 727 (2002) (quoting McFarland v. Scott, 512 U.S. 1256, 1263 (1994) (Blackmun, J., dissenting from denial of certiorari)) (describing the law of habeas corpus as “a doctrinal jumble that had grown too ‘byzantine’ for ready comprehension or utilization”); Z. Payvand Ahdout, Direct Collateral Review, 121 Colum. L. Rev. 159, 174 (2021) (noting that “federal habeas relief is afforded in only 0.29% of noncapital cases,” despite “substantial evidence that states systematically violate criminal defendants’ constitutional rights”).Show More Although the federal judiciary has acted mostly18 18.But see 42 U.S.C. § 1997e (placing limitations on some § 1983 suits by prisoners, including exhaustion requirement and limits on attorneys’ fees and recovery).Show More alone in dissecting § 1983, Congress has stepped in to place its own restraints on habeas corpus.19 19.See Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, Pub. L. No. 103-132, 110 Stat. 1214 (codified at 28 U.S.C. § 2254).Show More

All of this would be, apparently, the routine development of federal law, if it were not for one thing: habeas corpus and § 1983 have an unusual, judicially created, inverse relationship of applicability. In a series of cases beginning with Preiser v. Rodriguez, the Supreme Court has held that § 1983’s limitations are dependent on the Great Writ’s outer boundaries.20 20.411 U.S. 475, 500 (1973).Show More In essence, the Court held that there are some claims that § 1983 does not recognize because habeas corpus covers them instead. The clearest example is that a prisoner cannot bring a suit under § 1983 to challenge the validity of their confinement, even if they allege that that confinement is the result of a constitutional violation by someone acting under color of state law.21 21.Id. at 489.Show More Some suits several steps removed from this paradigmatic case are also within the “core” of habeas and therefore not cognizable under § 1983.22 22.Id. at 487–88.Show More

In this Note, I examine the implications of the relationship between these two statutes in the face of some recent suggestions by Supreme Court Justices that the writ of habeas corpus should cease to function as it has been understood to for at least the last half century. In effect, I ask how the boundaries of § 1983 that are dependent on the availability of habeas corpus should be affected if the writ’s availability is severely curtailed. Preiser’s holding has long been the source of unanticipated complexities.23 23.See Martin A. Schwartz, The Preiser Puzzle: Continued Frustrating Conflict Between the Civil Rights and Habeas Corpus Remedies for State Prisoners, 37 DePaul L. Rev. 85, 87 (1988) (“Preiser . . . leaves open more questions than it answers.”).Show More But while some of the resulting puzzles have been resolved by subsequent cases,24 24.Compare id. at 117–18 (asking whether, after Preiser, prisoners may bring claims for damages based on constitutional violations that resulted in their incarceration), with Heck v. Humphrey, 512 U.S. 477, 486–87 (1994) (answering that question in the negative).Show More it may be that the bond it strung between habeas corpus and § 1983 has not exhausted its capacity to surprise.

This issue arrives with particular urgency because of a concurrence penned by Justice Gorsuch in the recent case, Edwards v. Vannoy.25 25.141 S. Ct. 1547 (2021).Show More In that opinion, which is echoed in Justice Gorsuch’s subsequent opinion for the Court in Brown v. Davenport,26 26.142 S. Ct. 1510 (2022); see also id. at 1531 (Kagan, J., dissenting) (“That account repeats the views expressed in a recent concurrence, authored by the same Justice as today delivers the majority opinion.”).Show More he recounts the modern development of habeas corpus and what he views as its disconnection from its historical operation.27 27.Edwards, 141 S. Ct. at 1568 (Gorsuch, J., concurring).Show More His conclusion: “[t]he writ of habeas corpus does not authorize federal courts to reopen a judgment issued by a court of competent jurisdiction once it has become final.”28 28.Id. at 1573.Show More

Reopening judgments issued by courts of competent jurisdiction that have become final is nearly29 29.Habeas corpus is still invoked, though more rarely, to contest executive detention without trial. See, e.g., Boumediene v. Bush, 553 U.S. 723, 734 (2008).Show More the only thing the writ has done for at least a century. Adoption of Justice Gorsuch’s view would thus have momentous impact—both human and doctrinal.30 30.See Jonathan R. Siegel, Habeas, History, and Hermeneutics, 64 Ariz. L. Rev. 505, 508 (2022).Show More Even now, few litigants find courts as unfriendly to their claims as prisoners bringing suits against state governments.31 31.Ahdout, supra note 17, at 174.Show More But those governments possess immense power to harm. Prisoners, more than other citizens, are at the government’s absolute mercy and under its complete control. Removing the main avenue through which nearly two million people32 32.Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2023, Prison Pol’y Initiative (Mar. 14, 2023), https://www.prisonpolicy.org/reports/pie2023.html [https://perma.‌cc/7ZES-P5L7].Show More can challenge violations of their rights by an entity that now controls every aspect of their lives is a proposition that should give us pause.

But Justice Gorsuch’s limitations on the habeas remedy would have a similarly consequential impact on the doctrine that resulted from Preiser and its progeny. That is because Preiser limited the cause of action under § 1983 with explicit reference to and dependence on the availability of habeas review.33 33.See Preiser v. Rodriguez, 411 U.S. 475, 486–87 (1973).Show More

Below, I ask whether Justice Gorsuch’s concurrence in Edwards and the Supreme Court’s opinion in Preiser can be reconciled in their reasoning or results. I conclude that they cannot. Justice Gorsuch’s assertion about the limited scope of habeas relief is fundamentally at odds with the reasoning in Preiser and the cases that followed it. Thus, if Justice Gorsuch (and Justice Thomas, who joined him) maintain their views of what claims habeas corpus does not apply to, logic requires that they also reevaluate their views of what § 1983 does apply to.

To explore that assertion, I proceed in four parts. Part I explains Justice Gorsuch’s position on the history of habeas corpus and how it should influence contemporary courts’ willingness to grant the writ. Part II shows the development in courts of an interrelationship between habeas corpus and § 1983 and explains why the cord binding the two doctrines together would be severed by Justice Gorsuch’s reasoning in Edwards. Part III discusses the legal framework that would result if Justice Gorsuch’s opinion were taken to its logical conclusion and prisoners were able to bring § 1983 suits instead of habeas petitions. Part IV offers additional thoughts about the statutory interpretation that would be necessary to reach this result and asks whether that interpretation is unwarranted or implausible as a response to Justice Gorsuch’s own interpretive exercise.

  1.  Enforcement Act of 1871, ch. 22, § 1, 17 Stat. 13; see also Monroe v. Pape, 365 U.S. 167, 174 (1961) (describing enactment of the Act and its purpose). ↑
  2.  Zanita E. Fenton, Disarming State Action; Discharging State Responsibility, 52 Harv. C.R.-C.L. L. Rev. 47, 53–54 (2017). ↑
  3.  The Act is also now understood to allow suits based on violations of other federal, non-constitutional rights. See Maine v. Thiboutot, 448 U.S. 1, 7–8 (1980). For the purposes of this Note, however, the ability to bring suit challenging constitutional violations is more relevant. ↑
  4.  See Tiffany R. Wright, Ciarra N. Carr & Jade W.P. Gasek, Truth and Reconciliation: The Ku Klux Klan Hearings of 1871 and the Genesis of Section 1983, 126 Dick. L. Rev. 685, 686 (2022). ↑
  5.  See Monroe, 365 U.S. at 196 & n.5. ↑
  6.  42 U.S.C. § 1983. ↑
  7.  Id. ↑
  8.  Some of the atrocities were described in a letter from President Grant to Congress, within which he reproduced a message from a general stationed in Georgia. See S. Exec. Doc. No. 41-3, at 2 (1869) [hereinafter Presidential Letter] (“[W]ere the most worthless vagabond . . . to be charged with a crime against . . . a negro, neither he nor any other . . . would dare . . . to testify against [the offender], whatever might be their knowledge of his guilt.”). ↑
  9.  Id. (“[M]ost of the numerous outrages upon freedmen result from hostility to the race, induced by their enfranchisement.”); S. Rep. No. 42-1, at 116 (1871) (“[T]here has been considerable apprehension on the part of the freedmen in regard to their personal safety.”). ↑
  10.  See Presidential Letter, supra note 8, at 2 (“Murders have been . . . frequent. . . . There is great reason to believe that in some cases local magistrates are in sympathy with the members of these organizations.”); S. Rep. No. 42-1, at 83 (1871) (“The sheriff belongs to the organization, and so do his deputies.”); id. (“Question: Are the constables all members of it? Answer: Not quite all.”). ↑
  11.  See Presidential Letter, supra note 8, at 2; see also Blyew v. United States, 80 U.S. (13 Wall.) 581, 583 (1871) (finding that no witnesses were allowed to testify at trial of Black woman’s murderer because all witnesses were Black); Strauder v. West Virginia, 100 U.S. 303, 304 (1879) (describing West Virginia law prohibiting Black citizens from serving on juries); Virginia v. Rives, 100 U.S. 313, 315 (1879) (“The petitioners further represented that their race had never been allowed the right to serve as jurors . . . in the county of Patrick, in any case, civil or criminal.”). ↑
  12.  Act of Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385. ↑
  13.  Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 465 (1963). ↑
  14.  U.S. Const. art. I, § 9, cl. 2. ↑
  15.  Bator, supra note 13, at 465. ↑
  16.  See, e.g., John C. Jeffries, Jr. & George A. Rutherglen, Structural Reform Revisited, 95 Calif. L. Rev. 1387, 1402 (2007) (“As administered by the courts, qualified immunity shields a vast range of garden-variety unconstitutionality from vindication through money damages.”); id. at 1390 n.12 (“The absolute immunity afforded those exercising legislative, judicial, and prosecutorial functions also has been criticized.”). ↑
  17.  See Bryan A. Stevenson, The Politics of Fear and Death: Successive Problems in Capital Federal Habeas Corpus Cases, 77 N.Y.U. L. Rev. 699, 727 (2002) (quoting McFarland v. Scott, 512 U.S. 1256, 1263 (1994) (Blackmun, J., dissenting from denial of certiorari)) (describing the law of habeas corpus as “a doctrinal jumble that had grown too ‘byzantine’ for ready comprehension or utilization”); Z. Payvand Ahdout, Direct Collateral Review, 121 Colum. L. Rev. 159, 174 (2021) (noting that “federal habeas relief is afforded in only 0.29% of noncapital cases,” despite “substantial evidence that states systematically violate criminal defendants’ constitutional rights”). ↑
  18.  But see 42 U.S.C. § 1997e (placing limitations on some § 1983 suits by prisoners, including exhaustion requirement and limits on attorneys’ fees and recovery). ↑
  19.  See Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, Pub. L. No. 103-132, 110 Stat. 1214 (codified at 28 U.S.C. § 2254). ↑
  20.  411 U.S. 475, 500 (1973). ↑
  21.  Id. at 489. ↑
  22.  Id. at 487–88. ↑
  23.  See Martin A. Schwartz, The Preiser Puzzle: Continued Frustrating Conflict Between the Civil Rights and Habeas Corpus Remedies for State Prisoners, 37 DePaul L. Rev. 85, 87 (1988) (“Preiser . . . leaves open more questions than it answers.”). ↑
  24.  Compare id. at 117–18 (asking whether, after Preiser, prisoners may bring claims for damages based on constitutional violations that resulted in their incarceration), with Heck v. Humphrey, 512 U.S. 477, 486–87 (1994) (answering that question in the negative). ↑
  25.  141 S. Ct. 1547 (2021). ↑
  26.  142 S. Ct. 1510 (2022); see also id. at 1531 (Kagan, J., dissenting) (“That account repeats the views expressed in a recent concurrence, authored by the same Justice as today delivers the majority opinion.”). ↑
  27.  Edwards, 141 S. Ct. at 1568 (Gorsuch, J., concurring). ↑
  28.  Id. at 1573. ↑
  29.  Habeas corpus is still invoked, though more rarely, to contest executive detention without trial. See, e.g., Boumediene v. Bush, 553 U.S. 723, 734 (2008). ↑
  30.  See Jonathan R. Siegel, Habeas, History, and Hermeneutics, 64 Ariz. L. Rev. 505, 508 (2022). ↑
  31.  Ahdout, supra note 17, at 174. ↑
  32.  Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2023, Prison Pol’y Initiative (Mar. 14, 2023), https://www.prisonpolicy.org/reports/pie2023.html [https://perma.‌cc/7ZES-P5L7]. ↑

  33.  See Preiser v. Rodriguez, 411 U.S. 475, 486–87 (1973). ↑

Suffering Before Execution

Before their executions, condemned people suffer intensely, in solitude, and at great length. But that suffering is not punishment—especially not the suffering on American-style death rows. In this Article, I show that American institutions administer pre-execution confinement as nonpunitive detention, and I explain the consequences of that counterintuitive status. A nonpunitive paradigm curbs, at least to some degree, the dehumanization, neglect, and isolation that now dominate life on death row. It is also the doctrinal solution to a longstanding puzzle involving confinement, execution, and the Eighth Amendment.

To understand why pre-execution confinement is nonpunitive, readers need a basic understanding of the experience itself. Most death-sentenced people will lead lives marked by some substantial combination of inadequate nutrition, deficient health care, substandard sanitation and ventilation, restricted movement, and excessive isolation. By the time the state executes its condemned prisoners, they will have spent about two decades in such conditions—up from two years in 1960. The state distributes suffering across this prisoner cohort in ways that bear little relationship to criminal blameworthiness. Almost without exception, however, scholarship and decisional law continue to treat confinement before execution as punishment.

Virtually everyone makes the punitive assumption, but there are two reasons rooted in penal theory why they should not. First, confinement before execution does not meet consensus criteria for punishment. It is instead suffering collateral to the state’s interest in incapacitating those who face execution. Second, if pre-execution confinement were to be taken seriously as a punitive practice, then it would be normatively unjustified. More specifically, punitive confinement would represent punishment beyond the legally specified maximum (an execution), and it would be distributed across the death-sentenced prisoner cohort arbitrarily.

There is a well-developed body of constitutional law capable of absorbing a nonpunitive version of pre-execution confinement. Under that law, when the state detains people primarily to incapacitate them, that detention is regulatory—not punitive. Due process, rather than the Eighth Amendment, constrains regulatory detention. A nonpunitive approach would reduce unnecessary suffering because due process rules more stringently constrain the state’s treatment of its prisoners. Such an approach would also give the U.S. Supreme Court better answers to the difficult Eighth Amendment questions that have vexed the Justices for decades.

Introduction

People living on American death rows will die eventually, but first they will wait. And when death does come, it is more likely to be suicide or natural causes than the executioner’s hand.1 1.See Tracy L. Snell, Bureau of Just. Stat., U.S. Dep’t of Just., Capital Punishment, 2020—Statistical Tables 16 tbl.11 (2021) [hereinafter 2020 BJS Data], https://bjs.ojp.gov/content/‌pub/pdf/cp20st.pdf [https://perma.cc/R85Q-KZDJ].Show More Those whom the state manages to execute will spend, on average, about twenty years in pre-execution confinement2 2.See id. at 15 tbl.10.Show More —often in squalor and almost always alone.3 3.See generally ACLU, A Death Before Dying: Solitary Confinement on Death Row 1–7 (2013) [hereinafter 26-State Report], https://www.aclu.org/sites/default/files/field_docu‌ment/deathbeforedying-report.pdf [https://perma.cc/ZHW5-EFCL] (reporting inhumane confinement conditions on death rows in the United States based on a twenty-six-state survey); John H. Blume, Killing the Willing: “Volunteers,” Suicide and Competency, 103 Mich. L. Rev. 939, 964–66 (2005) (analyzing the link between harsh death-row conditions and execution volunteers); Robert Johnson, Solitary Confinement Until Death by State-Sponsored Homicide: An Eighth Amendment Assessment of the Modern Execution Process, 73 Wash. & Lee L. Rev. 1213, 1213–15, 1227–32, 1234 (2016) (explaining why death row incarceration is dehumanizing and arguing that it amounts to torture); Marah Stith McLeod, Does the Death Penalty Require Death Row? The Harm of Legislative Silence, 77 Ohio St. L.J. 525, 537–39 (2016) (summarizing death-row practices and conditions across all capital punishment states).Show More In other words, the condemned suffer intensely, in solitude, and at great length.

Almost every death penalty jurisdiction in the United States maintains a death row—a segregated living arrangement reserved for death-sentenced prisoners.4 4.The protocols for pre-execution confinement vary by jurisdiction, and I use the term “death row” to include any living arrangement for condemned people that does not integrate them into broader prisoner living arrangements. Cf. Merel Pontier, Cruel but Not Unusual the Automatic Use of Indefinite Solitary Confinement on Death Row: A Comparison of the Housing Policies of Death-Sentenced Prisoners and Other Prisoners Throughout the United States, 26 Tex. J. C.L. & C.R. 117, 141–42 (2020) (presenting findings on relationship between solitary confinement and death row throughout the country); Brandon Vines, Decency Comes Full Circle: The Constitutional Demand to End Permanent Solitary Confinement on Death Row, 55 Colum. J.L. & Soc. Probs. 591, 620–21 (2022) (same).Show More Pre-execution confinement might be a central feature of the modern death penalty, but it is theoretically neglected. Most jurists and scholars reflexively conceptualize it as an extreme form of punitive suffering.5 5.See infra Section I.B.Show More Even in corners of the legal academy more attentive to the theoretical question, people treat pre-execution confinement as punishment.6 6.To take a recent example, Professor Marah Stith McLeod published an encyclopedic account of death-row practices across the country, and she did so in service of an argument that, because death-row incarceration is punishment, the legislature must provide for it specifically. See McLeod, supra note 3, at 531, 537–39; see also infra notes 114, 135 and accompanying text (collecting sources) (highlighting professors who, despite carefully selecting terminology, nevertheless analyze death-row confinement as punishment).Show More

I have a different view: that pre-execution confinement is a form of nonpunitive custody. The execution is the penalty, and the prior confinement is the administrative detention necessary to carry that punishment out. After all, if death is the ultimate penalty, then what could the moral justification for adding punitive detention be? None of this is to say that pre-execution confinement is morally or legally unjustifiable. But if the confinement is nonpunitive, then it ought to be subject to moral and constitutional constraints that differ from those that limit punishment.

I proceed in three parts. In Part I, I set forth the punitive framework that dominates the modern understanding of pre-execution confinement. In so doing, I present the associated suffering along two dimensions. The first involves the duration of confinement, and the second involves its conditions. Most people sentenced to die will lead lives marked by some substantial combination of malnutrition, inadequate health care, substandard sanitation and ventilation, restricted movement, and excessive isolation.7 7.See infra Subsection I.A.2.Show More The distribution of this suffering within the cohort of death-sentenced people, moreover, has almost nothing to do with moral blameworthiness.8 8.See infra Subsection I.A.1.Show More Nevertheless, and as debates rage over justifications for such suffering, almost everyone is engaged in a similar project: to evaluate whether pre-execution confinement can be justified as punishment.9 9.See infra Section I.B.Show More

In Part II, I make the theoretical claim that pre-execution confinement is not punishment. That is, the state does not subject condemned people to harsh pre-execution treatment in order to counterbalance blameworthy conduct or for other punitive reasons.10 10.See infra Section II.A.Show More Most death rows exist because correctional administrators have decided to establish and populate them, and the suffering that condemned people experience there is typically justified by reference to incapacitation—an objective that the Supreme Court and most of the theoretical literature treat as nonpunitive.11 11.See infra notes 150–51, 242–53, 266–83 and accompanying text.Show More The problems with a punitive view of pre-execution confinement are more than just definitional. Any punitive treatment imposed by the state would violate core justificatory tenets of punishing. The state ought not impose punishment beyond the punitive treatment that the offending person deserves, so pre-execution confinement cannot be punishment added to the legislatively specified and jury-imposed maximum, which is an execution.12 12.See infra Subsection II.B.1.Show More

In Part III, I tackle constitutional doctrine. The constitutional law of nonpunitive detention can comfortably absorb confinement before execution.13 13.See infra Section III.A.Show More I also consider how that doctrinal change would affect pre-execution practices. First, it would change the procedures by which the state may permissibly isolate people in a segregated facility, and the most meaningful change would require periodic review for dangerousness.14 14.See infra Subsection III.B.1.Show More Second, it would mean that conditions of pre-execution confinement would be subject to analysis under stricter due process tests, rather than less stringent Eighth Amendment ones.15 15.See infra Subsection III.B.2.Show More Finally, it would give the Supreme Court a way to resolve a doctrinal impasse for which the Justices have offered only unconvincing answers: If lengthy pre-execution confinement entails decades of suffering, then how can the Eighth Amendment permit the state to add an execution?16 16.See infra Section III.C.Show More

In sum, pre-execution confinement should be treated as nonpunitive detention—an administrative arrangement necessary to incapacitate risks. On such an understanding, jurisdictions must reform pre-execution practices to avoid the pervasive neglect and dehumanizing treatment permitted under more punitive approaches. Readers should understand that, when I dispute the status of pre-execution confinement as punishment, I neither deny the existence of extraordinary pre-execution suffering nor suggest that it lies beyond law’s reach. Quite the opposite, in fact. Suffering before execution is cause for profound concern, both moral and legal. When the state inflicts that suffering for nonpunitive reasons, it ought to be substantially constrained, and there is constitutional doctrine capable of meaningfully constraining it.

  1.  See Tracy L. Snell, Bureau of Just. Stat., U.S. Dep’t of Just., Capital Punishment, 2020—Statistical Tables 16 tbl.11 (2021) [hereinafter 2020 BJS Data], https://bjs.ojp.gov/content/‌pub/pdf/cp20st.pdf [https://perma.cc/R85Q-KZDJ]. ↑
  2.  See id. at 15 tbl.10. ↑
  3.  See generally ACLU, A Death Before Dying: Solitary Confinement on Death Row 1–7 (2013) [hereinafter 26-State Report], https://www.aclu.org/sites/default/files/field_docu‌ment/deathbeforedying-report.pdf [https://perma.cc/ZHW5-EFCL] (reporting inhumane confinement conditions on death rows in the United States based on a twenty-six-state survey); John H. Blume, Killing the Willing: “Volunteers,” Suicide and Competency, 103 Mich. L. Rev. 939, 964–66 (2005) (analyzing the link between harsh death-row conditions and execution volunteers); Robert Johnson, Solitary Confinement Until Death by State-Sponsored Homicide: An Eighth Amendment Assessment of the Modern Execution Process, 73 Wash. & Lee L. Rev. 1213, 1213–15, 1227–32, 1234 (2016) (explaining why death row incarceration is dehumanizing and arguing that it amounts to torture); Marah Stith McLeod, Does the Death Penalty Require Death Row? The Harm of Legislative Silence, 77 Ohio St. L.J. 525, 537–39 (2016) (summarizing death-row practices and conditions across all capital punishment states). ↑
  4.  The protocols for pre-execution confinement vary by jurisdiction, and I use the term “death row” to include any living arrangement for condemned people that does not integrate them into broader prisoner living arrangements. Cf. Merel Pontier, Cruel but Not Unusual the Automatic Use of Indefinite Solitary Confinement on Death Row: A Comparison of the Housing Policies of Death-Sentenced Prisoners and Other Prisoners Throughout the United States, 26 Tex. J. C.L. & C.R. 117, 141–42 (2020) (presenting findings on relationship between solitary confinement and death row throughout the country); Brandon Vines, Decency Comes Full Circle: The Constitutional Demand to End Permanent Solitary Confinement on Death Row, 55 Colum. J.L. & Soc. Probs. 591, 620–21 (2022) (same). ↑
  5.  See infra Section I.B. ↑
  6.  To take a recent example, Professor Marah Stith McLeod published an encyclopedic account of death-row practices across the country, and she did so in service of an argument that, because death-row incarceration is punishment, the legislature must provide for it specifically. See McLeod, supra note 3, at 531, 537–39; see also infra notes 114, 135 and accompanying text (collecting sources) (highlighting professors who, despite carefully selecting terminology, nevertheless analyze death-row confinement as punishment). ↑
  7.  See infra Subsection I.A.2. ↑
  8.  See infra Subsection I.A.1. ↑
  9.  See infra Section I.B. ↑
  10.  See infra Section II.A. ↑
  11.  See infra notes 150–51, 242–53, 266–83 and accompanying text. ↑
  12.  See infra Subsection II.B.1. ↑
  13.  See infra Section III.A. ↑
  14.  See infra Subsection III.B.1. ↑
  15.  See infra Subsection III.B.2. ↑

  16.  See infra Section III.C. ↑

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