Sheldon Evans

Puerto Rico is more than a territory; it is a mirror that reflects American values of sovereignty, race, and exclusion. Professor Emmanuel Arnaud explores these values in a powerful project that considers how criminal justice in Puerto Rico tells a distinct story about colonialism, federalism, and prosecutorial power that resonates far beyond the shores of the Caribbean. In Colonizing by Contract, Arnaud describes the nuances of Puerto Rico’s perpetual purgatory between territorial status and statehood, and how federal and local law interact to create a unique exceptionalism in criminal jurisdiction on the island. In Arnaud’s words, these realities ultimately tell “a story about how the most powerful democracy on earth continues to perpetuate a colonial system that delegitimizes local authority and deprives Puerto Ricans of democracy and self-determination.” (P. 2252.)

History serves as a foundation to Arnaud’s analysis, starting with the United States’ imperial acquisition of Puerto Rico in 1898 after the Spanish-American War. As a territory, the island was subject to federal oversight similar to other territorial lands that the country had acquired throughout its history. Congress enjoyed plenary power over these territorial lands until they were deemed eligible for Congress to confer the sovereignty, political representation, and rights of statehood. But unlike the Northwest Territory, the Dakota Territory, Hawaii, and Alaska, Puerto Rico was never put on the pathway to statehood. One of the foremost reasons for this exclusion was racial. Congress had consistently required that these territories meet a certain threshold of White residents before they were considered eligible for statehood. Undoubtedly, this practical threshold was rooted in White supremacist logic, which reasoned that White residents were necessary to serve as voters and leaders before Congress could entrust that territory with the privilege of joining the Union as a sovereign state. In the Insular Cases (a series of cases decided by the Court during the turn of the twentieth century), the Supreme Court established that places like Puerto Rico could be held as territories in perpetuity. This meant that the island, and its mostly non-white Latine population, could be subject to the plenary power of Congress indefinitely. Thus, the sovereignty and political representation that statehood would bring was legally out of reach. For legal historians, this should come as no surprise. During the same time the Court was separating people and determining their political rights on the basis of race—including Chae Chan Ping that upheld Chinese exclusion (1893), and Plessy v. Ferguson that justified the separate but equal doctrine (1896)—the Insular Cases (1901-1922) continued this racialized trend of exclusion and second-class citizenship.

This history leads us to the titular theme of Arnaud’s thesis: this odd form of territorial exceptionalism has manifested into neocolonialism by way of contract. Over the years, Congress has used its plenary power to allow Puerto Rico some semblance of statehood. For example, it has its own constitution, its own civil and criminal code, its own law enforcement apparatus, and its own court system. However, federal power reasserted itself in 2010, when Puerto Rico entered into a Memorandum of Understanding (MOU) with the federal government. This MOU governed many aspects of criminal jurisdiction on the island by establishing nearly exclusive federal jurisdiction to prosecute a number of firearm crimes, drug trafficking, carjacking, bank robberies, and sex abuse cases. And while Puerto Rico voluntarily entered this agreement, we also have to consider whether both parties to this contract really had equal bargaining power.

On the one hand, the MOU is an example of criminal federalization that is familiar to many on the mainland. When the island was going through a rise in crime in the 1990s and 2000s, the federal government stepped in with the purported solution of the MOU as a way of helping Puerto Rico regain control over public safety. Arnaud deftly cites scholars from the 1990s who saw similar patterns of federalization of crime across the nation, when cooperative federalism reigned supreme to counteract the rise in crime of the 1980s and 1990s. But on the other hand, the MOU also serves as a powerful reminder that Puerto Rico’s police power does not come from its own sovereignty, but from the federal government’s plenary supervision that is rooted in an imperialist rationale.

Increased federal prosecution of local crimes has brought a host of practical issues that threaten Puerto Rican’s rights in ways that go beyond theoretical themes. Puerto Rico’s constitution prohibits wiretapping, pretrial incarceration for more than six months, and the death penalty. However, these constitutional protections have been stripped for many defendants subject to expanding federal criminal prosecutions on the island. Arnaud also recognizes that bringing these cases into federal court impacts defendants’ right to be judged by a jury of their peers. Federal courts in Puerto Rico require English proficiency to serve as a juror, which is something that 85% of the residents do not have as Spanish speakers. Further, there is a racial and class divide in this English requirement because mostly White, wealthy Puerto Ricans enjoy bilingual educational opportunities. Arnaud also raises the significant political problem whereby the island’s residents do not get to elect federal representatives. While Puerto Ricans are U.S. citizens by birth, they are denied the right to vote for the President of the United States and have limited representation in Congress (with a non-voting delegate). Just as our American founders revolted against an overbearing imperial government that taxed them without representation, America has become the new imperial power that is willing to impose even more problematic policies on Puerto Rico without representation in Congress. Arnaud also shows that these practical problems are more than mere speculation using data from on-the-ground interviews he conducted with Puerto Rican practitioners. There are real impacts whereby a modern version of federal plenary power is being reasserted in an area of law that cuts to the heart of Puerto Ricans’ liberty.

Arnaud’s thesis is compelling and aligns with my own research on criminal justice and the costs of cooperative federalism. Federalism, at its roots, is meant to be a diffusion of power between federal and state governments to prevent either sovereign from threatening individual liberty. Therefore, if the federal and state governments cooperate in ways to maximize punishment and minimize the rights of criminal defendants, then cooperative federalism turns into cooperative tyranny. Puerto Rico’s never-ending subjection to federal plenary power—as recently illustrated in the MOU—is cooperative federalism on steroids. In this case, there is no separation between federal and state actors; instead, the power of Puerto Rico’s prosecutors and police are mere extensions of federal power. Arnaud refers to this as a form of territorial federalism, which is even more problematic because people in the territories do not have the same political tools to protect its citizens from an overbearing federal government. Apart from its interesting overlaps with cooperative federalism, Arnaud’s work also evokes similar constitutional considerations that others have explored regarding Native American sovereignty. These territories also tell a unique story of federal and tribal sovereignty that does not illustrate a federalism relationship, but rather of a structural subordination of these lands and the second-class citizenship of their inhabitants.

As we celebrate the 250-years of this country’s political experiment, we must also realize that it coincides with the 125-year anniversary of the Insular cases. Consequently, Arnaud’s contribution studying the criminal jurisdiction of the U.S. territories should not be regarded as a niche subject; rather, it is the type of scholarship that highlights latent truths about our country’s continued commitment to practicing imperialism, upholding second-class citizenship, and using criminal law to assert political sovereignty. As it turns out, the age of imperialism is long from over, and it will not end until America loosens its hold over its territories to allow them to determine their own destinies.

The post Crime as Colonization appeared first on Criminal Law.

Christopher Slobogin

In Criminal Justice in Divided America, David Sklansky argues that populist democracy has been a significant cause of our criminal justice problems and that those problems, in turn, are largely responsible for the continued degradation of American democracy. But he also contends that, if properly defined and implemented, democracy can end this vicious cycle and help remedy both sets of failures.

Those failures are well known. On the criminal justice side, police and prosecutors abuse their authority, plea bargaining has replaced jury trials, crime rates remain constant despite exceedingly harsh sentencing dispositions, and communities of color unfairly bear the brunt of the system’s dysfunction. On the democracy side, we have become a seriously divided nation with seemingly intractable disagreements on a host of issues, and this polarization has, again, inflicted the most suffering on the disadvantaged. Sklansky’s contention is that application of the right democratic principles to policing, adjudication and punishment can not only improve criminal justice but also help reconstruct a healthy democracy.

On Sklansky’s account, our current political disarray can be traced back to the 1960s and 70s’ crime wave, which the criminal justice system not only failed to staunch but actively exacerbated through multiple police shootings that triggered what came to be called “race riots.” Many others have noted that during this period Republicans, beginning with Goldwater, used crime as a wedge issue and that Democrats soon joined the tough-on-crime chorus that has led to the ill-advised mass incarceration policies we have today. But while the left has since backed off the strident rhetoric, Sklansky asserts that the political right, all the way through to Donald Trump, has continued to trumpet criminal armageddon memes in election campaigns with the thinly veiled goal of othering Blacks and Latinos, and that this strategy—more than any other single phenomenon—has created the cultural and political chasm we have today.

While Sklansky thus blames democracy for both our broken criminal legal system and our broken political system, his target is a particular brand of democracy. Political scientists have identified a number of democratic variants, among them populist, participatory, deliberative and pluralist. Relying on this literature, Sklansky points out that many people today—scholars and laypeople alike—think of democracy in terms of “popular sovereignty,” the idea that the majority’s will should generally rule and that restrictions on that sovereignty compromise democracy. To Sklansky, it is this popular sovereignty strain that is the driver of our political shambles. He distinguishes both popular sovereignty and its authoritarian offshoot embodied by Trump from “democratic pluralism,” which prescribes a system that allows “a diverse society to govern itself peaceably and equitably.” The goal under democratic pluralism is not to follow the desires of the majority—which is rarely unified on the details of policy and can shift dramatically depending on events and information flow—but rather to ensure that particular processes are followed. Those processes include not only free and fair elections and adherence to norms endorsing the rule of law but also the full participation of the polity through legal institutions and “interest groups” of all types, including those based on identity and composed of people who have committed crimes. At the same time, Sklansky resists the recently popular notion that criminal justice policy should be dictated by local “communities,” because the most vocal people in the community may not always represent the diverse views of its members.

At the meta level, Sklansky’s version of democratic pluralism leads him to reject both penal populism—which he believes exaggerates the public’s punitive attitudes—and activist-based counter movements such as the Defund Police and Abolish Prisons campaigns—which he thinks take insufficient account of the public’s legitimate concerns about crime, concerns that are just as strong among people of color as they are among the rest of the polity. Implementing that view, Sklansky makes a number of specific proposals which he believes will enhance pluralism in the criminal legal system and, through those improvements, the well-being of our democracy. He also asserts that most of his recommendations could be accepted by both sides of the political aisle, because they avoid the public safety v. anti-racism agendas that make consensus so difficult. While many of these proposals were floated long before the publication of Criminal Justice in Divided America—including by Sklansky himself in his book Democracy and the Police, published almost 20 years ago—his framing of them as means of promoting democratic pluralism allows us to consider them in a new, refreshing light.

The proposals are fleshed out in four chapters entitled Police, Prosecution, Adjudication, and Punishment. In the policing arena, Sklansky argues for an expanded approach to community and problem-oriented policing, transfer of non-criminal functions to other agencies, transparent systems for holding police accountable, tracking of problem officers, use of body cameras, and increased emphasis on diversifying police forces, all initiatives that should be relatively uncontroversial (although he also argues for an end to qualified immunity, which is decidedly less so). With respect to prosecution, he suggests that imposing constraints on prosecutorial charging and plea bargaining power by reducing trial penalties and draconian sentences, while simultaneously bolstering public defender services, would be welcomed by the left and the right, especially given current enmity toward progressive as well as traditional prosecutors and today’s heightened concerns about the human and fiscal costs of mass incarceration. By helping to rejuvenate the jury system, curbing prosecutorial ability to coerce pleas should also further the pluralist agenda at cases that go to trial. Other means of doing so, Sklansky suggests, include limiting exclusions from jury service (including exclusions aimed at the formerly incarcerated), ending peremptory challenges, giving grand and petit jurors more authority to ask questions, informing juries about potential sentences, and selecting judges through commissions rather than direct elections. Finally, all of this could also help curb excessive and racially-biased punishment, as could the expanded use of community-based restorative justice approaches and increased opportunities for probation, parole and clemency (the latter perhaps granted through a jury process).

Again, the innovation of this book is not the proposals it proffers, which have been seen before, but the prism through which Sklansky views them. For him, the overall goal should be choosing criminal justice reforms that promote integration of every component of society, a society which he emphasizes consists not of a majority and a minority but of “many minorities.” Achieving that goal, Sklansky argues, should help defang attempts to use crime and the criminal legal system as populist weapons to divide us and instead provide a forum for acknowledging the diversity of views in the United States.

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Aya Gruber

Not a day goes by without someone remarking that social media is a “cesspool.” The internet overflows with misogynist, anti-LGBT, racist, fascist, and even openly genocidal sentiments, some coming from the highest reaches of government. Snarky male right-wing influencers edgelord over popular discourse, claiming to say the bigoted and cruel things that “everyone is thinking.” Still, there has been something conspicuously absent from this execrable miasma: “smut”—that is, commercial sexuality, sexual imagery or just nudity, and sexual remarks. On Parler, which has served as a clearinghouse for far-right and neo-fascist ideology, one can post effusive praise for Andrew Tate and his pro-rape female-slavery agenda, but one cannot post a topless photo of a feminist protesting the shirt-wearing double standard.

Free-speech-absolutist platform Parler’s prohibition of content involving “nudity” and “explicit adult material or language” is one of myriad examples of the “sexual safety” default in online regulatory governance explored by Brenda Dvoskin and Thomas Kadri in their consequential article, Safe Sex in the Age of Big Tech Feminism. Now, sex exceptionalism in media regulation is hardly a modern phenomenon. In the traditional movie-rating context, one could always more easily see bodies being riddled with bullets than bodies coming together in sexual activity. Nor is it a novel question whether the agenda of broadening the reach of criminal law over sexual conduct is a “feminist” one, having been debated since the famous 1980s “sex wars” between anti-pornography and sex-radical feminists. On that debate, Kathy Abrams and Brenda Cossman provide excellent accounts, or one can go back to a classic book on the topic, Carole Vance’s edited collection, Pleasure and Danger.

Still, Safe Sex provides something new and desperately needed: a meticulous accounting of the complicated regulatory infrastructure governing sex in cyberspace and how its web of privileges and punishments reflect and reinforce certain ideas about sexuality and gender. The past decade has seen legal reforms addressing technology-enabled sexual misconduct—and conduct—amass at a dizzying pace with relatively little criticism outside of the civil libertarian free-speech arena. And, as the Parler anecdote suggests, the freest right-wing free-speakers have offered limited resistance to sexual censorship.

A crucial intervention in itself, the article catalogues the plethora of laws and policies that control sexual expression primarily on social media, but also interestingly on dating apps, where one might presume—wrongly, according to regulators—that sexuality is presumptively part of the experience. The regulatory web includes platforms’ self-imposed restrictions, administrative limitations, civil causes of action, and felony criminal laws. The array of regulated behaviors ranges from posting nudes and explicit sexual conversation to intentional harassment and child pornography. Because the regulatory scheme has tended toward overbreadth, whether due to bureaucratic creep, sex-regulatory creep, or fears of bad men exploiting “loopholes,” it does not just prohibit and punish uncontroversially harmful sexual conduct but functions to discipline the meaning of sexual communications in contested areas. In this way, online sexual regulation has produced culture, a gendered and gender-binary sexual culture.

In addition to creating and managing sexual culture, the authors argue, the online sexual-safety movement reinforces individual discipline as the default legal mechanism to address sexual harm and risk. When experts, activists, tech companies, and viral posts identify new or newly interesting sites of sexual harm and discomfort, proposals for new crimes shortly follow. Advocates moreover tend to champion easy-to-prove laws that give police and prosecutors the necessary “tools” to fight the identified problem, secure in their faith that these state actors will judiciously apply their newfound carceral power to the “real” bad actors. Thus, the problem of “revenge porn,” is publicized as hateful men widely disseminating nude photos of women for the express purpose of ruining their lives, but it spawns laws against “nonconsensual intimate image distribution” (NCII), which criminalize the disclosure of a nude image to any other person. Far from requiring the specific intent of revenge or harassment, the crime often does not require the defendant to know that the person depicted did not consent to dissemination. At the same, as Andrew Gilden has argued, limitations on what counts as a “private” image worth protecting effectively gives a pass to bad actors whose very goal is to harass and harm LGBT people and sex workers by disseminating their ostensibly “public” sexual images.

Or consider the cyberflashing laws created to criminalize unwanted “dick pics.” They tend to be broader than their IRL public lewdness counterparts—themselves a legacy of the vagrancy and vice-policing era—which often require the element of causing or intending to cause alarm. The authors note that in Texas, it is a crime to send a nude photo at all, unless the recipient has already expressly consented to receiving it. This makes texting a racy picture to a lover a crime even when the sender reasonably believes the recipient wants the photo, and even when the recipient does want it. The impetus behind this unusual substantive strict-liability law?: the high-profile founders of the “feminist” dating site Bumble thought it was a good idea.

In the cyberflashing example, “girl-boss” feminists’ presumption that female sexual agency requires the absence of male sexual prerogative created a real criminal law—one which ironically has the potential to punish girl bosses in the commercial sex industry who send unsolicited advertisements. Perhaps this is why Dvoskin and Kadri label the entire online sex-regulatory web “Big Tech feminism.” To be sure, the idea that male sexuality and even male body parts are tools of female subordination has a long pedigree in feminism and feminist legal theory. But the authors admit that a range of ideologies beyond dominance feminism are also at work, including old-school moralism, the liberal fetishization of privacy, and anti-“deviance” sentiments. So perhaps a better name would be Big Tech sexual protectionism, although it hardly rolls off the tongue. Whatever the label, the article does a terrific job of showing how a range of diverse ideologies have produced a legal scheme that simultaneously offers protection from some sexual harms as it creates fertile grounds for others to flourish, protects privacy as it reinforces gendered notions of chastity and discriminatory notions of deviance, and idiosyncratically punishes individuals as it normalizes society’s stigmatization of sexualized women.

Dvoskin and Kadri assert that the Big Tech feminism at the heart of the safety zeitgeist exhibits signature characteristics, what they name “the four P’s.” The scheme is “prudish, personal, punitive, and profitable.” There is much to debate about this characterization of sexual regulation in cyberspace. For now, let me just briefly explain the “four P’s, as the clever alliteration can come at the expense of clarity. By “prudish,” the authors signal that anti-sex ideologies, both left and right, have influenced internet regulation, from conservative distaste for open female sexuality and LGBT “deviance” to feminist accounts of heterosexual sex as mostly subordination. Of course, these ideologies are distinct, and the authors take care in arguing why the feminist equation of male sexuality with danger might not be so progressive—or good for women. After all, in a culture that designates one category of people as having a weapon and another as constantly needing protection from it, who wins? In addition, the idea that sexuality is a quintessentially and inherently a private matter underlies the anti-sex-ed agenda that leaves teens to learn about sexuality from misogynistic internet porn.

The authors use the “personal” and “punitive” descriptors to highlight the tendency of many law reformers, especially those concerned with sexual conduct, to prescribe individualistic disciplinary and criminal sanctions that (often falsely) promise deterrence, rather than structural, educational, and design reforms meant to prevent harmful behavior. By “profitable,” the authors mean not so much that sexual hyper-safety is good business, but that it has become entrenched as industry “best practices” in a way that makes sense within the logic of corporate governance and profit maximization.

In the end, the article puts a much-needed spotlight on a legal juggernaut: the criminal, civil, and administrative control of online sexual expression in the name of preventing harm to women and children. Like many criminal laws, these broad reforms rode in on a discourse of monstrous unrepentant male offenders and sexually innocent female victims. But they do little to deter the worst dark-web actors who are unlikely to get caught or individuals who deliberately harm already sexualized people. In fact, it is the ideology that sexuality—particularly female and LGBT sexuality—must be remain the closet that leads bosses to fire, friends to shun, and churches to expel women whose nudes become public. And the laws’ carceral reach will not be confined to the worst of the worst. Already FOSTA-SESTA has deterred online commercial sex advertising more than child sexual abuse, effectively making sex work riskier for women. NCII laws have swept in not just revenge pornographers but sexting teens and women exposing their partners’ infidelity. Research has found that sexual content moderation targets LGBT speech. I commend Dvoskin and Kadri, two relatively junior scholars, for taking a brave and controversial stance on a politically and emotionally charged topic that too many powerful commentators insist has only one valid side.

The post Sex and Tech appeared first on Criminal Law.

SpearIt

When NFL star Colin Kaepernick was in the spotlight in 2016 for protesting police violence, the notion of “defund the police” was just a fledgling idea in criminal justice reform. At that time, he aligned with and amplified the Black Lives Matter movement, which had reached a zenith in the wake of George Floyd’s murder in 2020. This explosive moment put police practices under heavy scrutiny and thrust the notion of “defund” into mainstream debates on police reform. Some states have embraced aspects of the “defund” ideology, but unfortunately, have faced some unsavory consequences that produce the very problem sought to be prevented.

In (Non)Police Brutality, Shawn E. Fields explains the unintended consequences of moves to defund the police. Perhaps the most damaging of these have emerged due to the reality that non-police actors can be brutal too. The main justification for defunding the police, brutality, is sometimes one of the consequences of defunding—only now it is at the hands of EMTs, mental health workers, and other police substitutes. This paradox produces a most insalubrious outcome since civilians have less legal recourse against the acts of non-police responders, leaving victims in a worse position than if they had been brutalized by police.

The Article’s path to unveiling this paradox begins with the rise of the “alternate responder” as an antidote to police misconduct. To begin, the Article situates modern forms of police brutality within the broader context of police misconduct, noting at the outset that violence “is central to police work.” (P. 829.) Physical force, at some level, is inherent in a job that requires the seizing, searching and detaining of civilians. Hence, police misconduct builds from the raw blocks of violence, over which police enjoy a quasi-monopoly.

The brutality is not distributed evenly in society but instead focuses most severely on individuals with particular intersectional characteristics, as ethnic and racial minorities and poor people bear the bulk of brutality. The data on the racial disparities among victims of police shootings is devastating, revealing that an unarmed Black person was three and a half times more likely of being shot by police than an unarmed White person. Such findings have analogs throughout police practices, with police being more likely to draw weapons, use pepper spray, push an individual to the ground, use handcuffs, and employ other violent treatment against Black people than against White people. (P. 833.) The overall picture is one in which police brutality operates as a terrifying power that is deployed in racially determinant ways.

The problem of police misconduct and its concentration on racial minorities set the backdrop for the rise of the alternate responder. Municipalities across the country worked to remove police from the equation where possible, “replacing armed police with unarmed experts in addiction, mental health, homelessness, and other noncriminal matters…The direct motivation driving alternate response mechanisms is a desire to end police brutality.” (P. 838.) But what happens when non-police responders are the ones wielding violence?

The Article approaches this question from a Fourth Amendment perspective—and the results bode ill for victims of non-police violence. As the main constitutional restraint on police use of force, Fourth Amendment jurisprudence has shaped police practices and has been the primary legal regulation on police officers. Caselaw on police misconduct indicates that the Fourth Amendment is a weak protection against police misconduct. These scanty protections are further diminished when it comes to misconduct by non-police.

The Fourth Amendment analysis begins with the standards that guide use of police force, which the Article deems a “[j]urisprudence that facilitates violence.” The discussion includes classics like Tennessee v. Garner and Graham v. Connor, the latter of which “has worked to insulate officers from accountability while justifying heinous acts of police brutality…” (P. 843.) The caselaw sets a deferential tone for police conduct and produced the doctrine of qualified immunity, which shields officers from civil rights claims. As the Article describes, “excessive force jurisprudence does more to facilitate police violence than restrain or redress it.” (P. 844.)

While in theory, it might be reasonable to imagine that Fourth Amendment protections are more robust for victims of non-police brutality, the exact opposite is true. The Article highlights how the main cases that trigger scrutiny—sexual misconduct, medical personnel, and school officials—demonstrate time and again that when challenged conduct falls outside the law enforcement/investigation context, courts are reluctant to find that the non-police responders’ conduct constitutes a search or a seizure. Automatically then, such responders operate in a strange grey zone since they are capable of inflicting police-like violence but are held to an even lower standard than police.

Non-police responder cases run the gamut. There is the paramedic who pushed down a patient and forced ingestion of psychotic medication, an outreach specialist who forcibly packed up someone’s tent and pushed that person out of the park, and other examples of non-police uses of physical force. The fact that these non-consensual touchings “are both not as invasive as rape and not conducted by police officers only further compels the conclusion that courts will not apply the Fourth Amendment to them.” (P. 853.)

The Article concludes that courts should view non-police brutality as an unreasonable seizure and the subject of Fourth Amendment protections, what it describes as a “target theory of Fourth Amendment seizures.” This approach redirects the constitutional inquiry away from government actor who commits the violation and considers the objective intrusion into a person’s bodily and liberty interests: “This approach removes justiciability issues inherent in divining the intent of government actors and allows courts to more easily and consistently apply the Fourth Amendment to clear cases of excessive force.” (P. 880.) Thus, the turn to non-police responders, though a welcome change, is one that must be approached cautiously, and “rules governing these alternate responders must reflect the serious need to restrain non-police actors from engaging in the same violent acts as they replaced.” (P. 887.)

The post How “Defund the Police” Diminishes the 4th Amendment appeared first on Criminal Law.

Maartje van der Woude

There is a tendency in socio-legal and criminological scholarship to approach border policing through its most visible moments: the violent encounter, the discretionary stop, the dramatic deportation, the spectacular failure or abuse. Irene Vega’s Bordering on Indifference: Immigration Agents Negotiating Race and Morality invites us to look elsewhere. Not away from power or harm, but toward the quieter, routinized, and morally ambiguous labor through which immigration enforcement is sustained day after day. It is here, Vega shows, that the U.S. immigration system derives much of its resilience, and much of its cruelty.

Based on extensive ethnographic interviews with Border Patrol agents and ICE deportation officers, the book offers a deeply textured account of how frontline immigration agents come to understand their work, their authority, and themselves. Vega is not interested in asking whether agents are “good” or “bad.” Instead, she asks a more unsettling question: how do agents learn to live with, justify, and normalize a system that produces suffering on such a vast scale?

The answer, Vega argues, lies in the cultivation of indifference: not apathy or callousness, but a carefully managed moral stance that allows agents to do their jobs while keeping moral dissonance at bay. Indifference, in this sense, is not the absence of feeling but a form of moral work. It is actively produced, sustained, and legitimated through institutional routines and legal authority.

For U.S. lawyers, this insight is particularly arresting. Vega shows that indifference is not simply an occupational coping mechanism, but a stance enabled by law itself. Legal mandates, procedural routines, and chains of authority allow agents to experience their actions as lawful even when they are morally troubling. In this way, Bordering on Indifference is as much a study of legality as it is of enforcement culture: it reveals how law operates as a moral alibi, converting ethically fraught decisions into neutral acts of compliance.

From the outset, Vega situates immigration enforcement as a profoundly moral field. Agents are not only law enforcers; they are moral actors operating within a system whose legitimacy is constantly contested. In the book’s opening chapters, she traces how agents “take the job” and “become agents,” often drifting into immigration enforcement for pragmatic reasons—economic stability, limited local opportunities, or proximity to the border—rather than ideological commitment to immigration restriction. Yet once inside the institution, agents are trained to see migration through a law-and-order lens that frames enforcement as both necessary and underappreciated.

This process of professional socialization is crucial. As Vega shows, the academy does not merely teach legal rules and tactical skills; it reshapes recruits’ moral vocabularies. Agents learn to understand themselves as enforcement-oriented professionals tasked with controlling a problem that is at once politically charged, structurally irresolvable, and deeply racialized. The result is a persistent sense of futility, of “doing a job you are not allowed to do”, paired with a strong attachment to the authority of law as a moral anchor.

That attachment should give legal scholars pause. Vega’s analysis reveals how legality functions not only as a constraint on power, but as a source of moral reassurance for those who exercise it. Agents repeatedly return to law—this is what the law requires; this is not my decision—as a way of resolving moral doubt. For lawyers accustomed to viewing legality as a safeguard against arbitrariness or abuse, the book offers a sobering counterpoint: here, law stabilizes coercion by dispersing responsibility across procedures, hierarchies, and rules.

One of the book’s central contributions lies in its analysis of Latina/o agents, whose racial and cultural proximity to migrants places them in an especially fraught moral position. Rather than treating shared ethnicity as a straightforward source of empathy or resistance, Vega shows how it becomes a resource for governance. In a key chapter, she introduces the concept of “caring control” to describe how some Latina/o agents use cultural familiarity, language, and courtesy to humanize enforcement encounters without altering their punitive outcomes.

Caring control, Vega argues, is not a contradiction but a technique: a form of soft coercion that improves compliance, reduces friction, and allows agents to see themselves as humane actors within an otherwise harsh system. Crucially, this humaneness does not disrupt the machinery of deportation. Instead, it stabilizes it, benefiting both agents, who can preserve a sense of moral worth, and the state, which gains legitimacy through a diverse and ostensibly compassionate workforce. Not all agents adopt this approach. Others embrace what Vega calls “disinterested professionalism,” insisting on neutrality, equal treatment, and emotional distance. Yet here too, the outcome is the same: the smooth reproduction of enforcement. Whether through warmth or detachment, the system moves forward.

The book’s analytical core emerges most forcefully in its chapters on moral ambiguity, denial, and legitimacy. Vega takes readers into moments where the moral scaffolding of enforcement threatens to collapse: the family apprehended in the desert, the father who begs to be released, the agent who recognizes himself in the migrant standing before him. These encounters generate what Vega calls “moral emotions” (sympathy, guilt, shame) that run counter to the enforcement mission.

What happens next is telling. Rather than producing resistance or refusal, these emotions are managed through denial. Agents deny responsibility (“I’m just enforcing the law”), deny harm (“I’m not hurting anyone”), or deny victimhood (“they chose this”). For legal audiences, this analysis resonates well beyond immigration enforcement. The familiar appeal to legality mirrors doctrinal and institutional logics that insulate individual actors from responsibility by locating agency elsewhere. In statutes, executive priorities, or bureaucratic necessity. Vega shows how these logics operate not only in courtrooms or policy debates, but in the everyday moral reasoning of frontline officials. The result is a system in which harm is legally authorized yet experientially disowned.

The final chapters extend this analysis to questions of legitimacy. Immigration agents, Vega shows, experience their work as morally tainted. They feel misrepresented by the media, criticized by the public, and—especially for Latina/o agents—accused of betraying their communities. In response, agents engage in active legitimation work: reframing deportees as criminals, invoking sovereignty and legality, and comparing U.S. enforcement favorably to that of other countries. Vega situates this frontline moral labor within broader political shifts. While changes in presidential administrations may alter enforcement priorities, they do not fundamentally disrupt the moral economy of immigration control. What remains constant is the everyday work of agents who translate abstract legal mandates into lived realities, often beyond the reach of public scrutiny or judicial review.

Bordering on Indifference makes several vital contributions. Empirically, it offers rare access to a closed and defensive institution. Theoretically, it advances our understanding of how morality, emotion, race, and legality operate together within bureaucratic power. Normatively, it resists easy judgments, forcing readers to confront the unsettling possibility that cruelty is most effectively sustained not by hatred or excess, but by professionalism, care, and moral distancing.

For U.S. lawyers in particular, Vega’s book offers a critical intervention. It challenges comfortable assumptions about the redemptive force of legality and raises difficult questions about responsibility, discretion, and accountability in administrative systems. It reminds us that some of the most consequential legal harms are produced not through overt illegality, but through ordinary compliance with law.

In an era where border violence is increasingly visible across the globe, Bordering on Indifference reminds us that the durability of the immigration system lies not only in walls and weapons, but in the everyday moral accommodations that make exclusion feel lawful, necessary, and ordinary.

The post Bordering on Indifference: The Moral Work of Immigration Enforcement appeared first on Criminal Law.

• Renagh O’Leary, Supervising Sentencing, 57 U.C. Davis L. Rev. 1931 (2024).
• Renagh O’Leary, Ideological Testing, 103 N.C. L. Rev. 909 (2025).

Ji Seon Song

Over 3.6 million people are on some form of community supervision of either probation or parole.¹ This is almost double the number of people incarcerated in juvenile facilities, jails, and prisons. The alternative to incarceration has now become its own beast, leading to the new coinage of mass supervision or mass probation.² The problems with mass supervision and mass probation are many, as scholars have noted.³ Supervision in the community net-widens. It replicates and perpetuates racial inequality. Community supervision does not lead to a life free from the criminal legal system. Instead, people who are sentenced to probation and parole often cycle back into incarceration. Probation and parole expand the carceral footprint and do so in ways that infringe on the privacy, liberty, and dignity of lives, while also expanding law enforcement capabilities.

These criticisms implicitly include the actions of the agents of community supervision—probation and parole agents. But is there more to probation and parole than just supervision? As routine, embedded institutional actors who operate at the nexus of law enforcement, rehabilitator, counselor, and adjudicator, what other kinds of harms do they produce? This is where Renagh O’Leary’s work comes in. In the “new penology” described by Jonathan Simon and Malcolm Feeley,⁴ with its emphasis on risk management and control of those deemed dangerous, the agents of community supervision are important arbiters of risk management and assessors of dangerousness. In two articles, Supervising Sentencing and Ideological Testing, O’Leary delves deeper into the processes of community supervision agents, looking beyond their purely supervisory functions. Each article is noteworthy for its individual contributions, but reading them together reveals additional insights and implications. O’Leary’s work uncovers probation and parole agents as important ideological actors contributing to the “ideology of criminal procedure.” These principles of criminal procedure frame the cultures and interactions between the criminal justice actors and the public, constituting “a set of ideas and assumptions that undergird the operation of the criminal process and legitimize the status quo.”⁵

To make her arguments, O’Leary, a criminal law and procedure scholar, has amassed an impressive dataset of 200 internal probation policy documents, including standardized questionnaires, templates for presentence reports, and agency policies on presentence investigations and reports. She also draws from a collection of risk assessments and completed a risk assessment training herself.

In Supervising Sentencing, O’Leary examines the process of pre-sentence interviewing and report-writing by probation officers. Probation officers in nearly all jurisdictions are tasked with preparing a pre-sentence report for the sentencing judge. The report is preceded by a pre-sentence interview where the probation officer questions defendants on a wide range of topics, aimed at arriving at a sentence recommendation and providing relevant sentencing information to the court. O’Leary highlights three facets of this pre-trial report process: topic-selection, fact-finding, and meaning-making. In carrying out these discretionary functions, probation officers can ask if family members have criminal histories and obtain broad releases for otherwise private records. After gathering information, they then interpret the facts in highly “impressionistic and subjective ways” to opine on those facts, such as in assessing the defendant’s “attitude.” These choices have an “ideological dimension,” according to O’Leary. They help imbue a “punitive perspective” at sentencing that has “deep faith in the criminal system” as one that is socially beneficial. This elevation of the punitive perspective also benefits from the probation officers’ “pretense of neutrality and helps insulate it from challenge and critique.”

In Ideological Testing, O’Leary delves deeper into the concept of the ideology of criminal procedure. She surfaces a category of questioning by probation officers and parole agents in risk assessments, pre-sentence interviews, and parole hearings that reveal what she calls “ideological testing.” The ideology of criminal procedure O’Leary points to in Supervising Sentencing previews arguments she fleshes out in Ideological Testing. O’Leary highlights three sites of ideological testing: presentence investigations, risk assessments, and parole hearings. She identifies questions that “test” the ideology of criminal defendants with questions like “do you think the criminal justice system is fair?” or “How do you feel about the police who arrested you?” Even as inequities and injustices in the criminal legal system are well-documented, especially for Black defendants and defendants from other racial minority groups, the “wrong” answer to these questions is interpreted as evidence of criminality, lack of remorse, or refusal to accept responsibility. At its essence, the message of these questions to a defendant is: drink the Kool-Aid even if the Kool-Aid poisons you, or suffer the consequences. These questions reinforce the punitive perspective O’Leary defines in Supervising Sentencing: “one that sees the criminal legal system as just, criminal punishment as socially beneficial, and criminal defendants as moral failures.” More than that, the systematic use of these questions and assessments undermines free speech, perpetuates a kind of gaslighting by denying the defendant’s reality, and further entrenches racial injustice by disallowing criticism by defendants of the kinds of bias and discrimination that led to their arrests, prosecutions, pleas, and convictions.

O’Leary acknowledges that because her examination is limited to policies and protocols, she cannot opine on how individual officers approach cases. But in her framework of community supervision agents’ ideological work, we can see how these agents, as “street-level bureaucrats,” are yet another example of Michael Lipsky’s theory of how government workers deploy their discretion in ways that not only shape the experiences of individual defendants, but serve to legitimate perceptions of the system as a whole.⁶ Thinking about the process of ideological testing and pre-sentence investigating together reveals how they form a feedback loop for the stakeholders, producing a continuous survey confirming the fairness and legitimacy of the criminal legal process and system. This feedback loop tells community supervision agents and other criminal justice stakeholders that even criminal defendants consider the criminal legal system fair and believe that their cases did not involve bias, discrimination, the misuse of discretion, or missteps by police, prosecutors, judges, and public defenders. This message is perhaps even more potent because the perception of community supervision agents is that they are non-partisan and represent the softer or rehabilitating side of the criminal legal system.

As a former public defender and clinician, O’Leary is well-positioned to offer practical solutions. For instance, she outlines a First Amendment challenge to ideological testing in risk assessments. A separate approach she advocates for in both articles is the elimination of the identified processes of the pre-sentence interview and risk assessments. Perhaps such elimination might satisfy the issues she highlights, but I wonder whether it might be worth questioning the broader value of these community service agents and the institutions they represent, especially as more is uncovered about how much they execute managerial and behind-the-scenes functions of the criminal legal system that have wide-ranging consequences.

Ultimately, O’Leary’s work calls on scholars and advocates to think more deeply and with more nuance about the inner mechanisms of the often overlooked actors engaged in community supervision. What may appear to be the routine and inconsequential actions of these actors are actually powerful drivers of certain ideologies of our criminal legal system.

The post The Ideology of Community Supervision appeared first on Criminal Law.

Jonathan Simon

In Franz Kafka’s haunting short story, Before the Law, an ordinary person (described as a “countryman”) seeks to enter the law only to discover a gatekeeper whose formidable personal presence and vague threats of even fiercer gatekeepers keep him stalled at the law’s entrance. The seeker spends his entire life imploring the gatekeeper to let him in, never daring to attempt to evade him. In the end, he comes to know (spoiler here) that this gate, from which he was denied entry, was made only for him.

Modern students of the legal system have long studied the role of gatekeepers, both the intermediaries like lawyers whose help is crucial to accessing justice, and institutional rules and norms that favor repeat players over first time users of the courts. Rarely, (but see, Nicole Gonzalez Van Cleve, Crook County (2016)), however, do we, like Kafka, explore the physical (and perhaps metaphysical) barriers to equal justice. In an important analysis of data from a broader ethnographic and qualitative interview based study of ordinary people’s experiences with accessing courts, Spatial Burdens of State Institutions: The Case of Criminal Courthouses, Matthew Clair, Jesus Orozco and Iris Zhang spotlight the spatial environments of court houses and how they contribute to complex patterns of inequality and paternalistic and punitive forms of poverty governance. The authors highlight two kinds of power effects of court spatial conditions. There is the direct effect on court users of the environment in and around the courthouse and how that can shape the emotional experience of accessing justice institutions. There is also a secondary effect when court-based burdens cause a person to have to seek additional state institutional intervention (like a person who loses their job because of the time involved in attending court hearings and must apply for unemployment or food support). Together, these create a distinctively spatial dimension to poverty governance.

The authors’ multiyear study focused on two courthouses in Silicon Valley (Santa Clara, County, California). One was the main county courthouse in downtown San Jose (the largest city in the county and one of the largest in the state in terms of population and area), which is surrounded by high-speed roads and parking lots, and lacks nearby affordable restaurants. The other was the Palo Alto branch court, which sits in a high-income area full of stores, restaurants and amenities. The authors and their collaborators undertook two years of fieldwork and multiple interviews with court users in the period following the COVID 19 closures.

One feature of geographic variation around inequality that has long been of interest to social scientists and lawyers involves spatial distance. We speak routinely now of “food deserts” to describe the way poorer neighborhoods often lack access to affordable sources of healthy food (like larger grocery stores). This consideration is relevant to the courthouse story as well. For some defendants, especially those not in custody, and for their family members, the long distance and the lack of easy public transit across the county makes the Palo Alto courthouse a special burden. Likewise, in court studies, the rural/urban divide has often been spotlighted as capturing major disparities in the resources and infrastructures of justice (courthouses, lawyers, law enforcement). But objective distance and the rural urban divide is only one dimension of geographic power effects. The authors focus on four dimensions that emerge as significant from their interviews and ethnographic observations: functional distance (objective distance plus the various barriers like transit, parking, and traffic patterns); neighborhood social life (the way the collective built and social environment may be welcoming or unwelcoming); the exterior form of the courthouse (how it appears and how it can be entered); and interior built forms (interior barriers, aids to navigation or arrival, and complexity).

While the interviews included people involved in non-criminal proceedings, the significant effects were most concentrated on those in criminal cases, and even those involved in civil matters were more affected if they were already criminalized. The qualitative research surfaces many fascinating details that will be especially interesting to those teaching clinical and practice related courses involving predominantly poor communities and to those researching or teaching on criminal courts. The authors make many surprising findings, including that in-custody defendants have an easier path to court since they are generally brought close to the courtroom for their hearings and then escorted in. Some findings are not so surprising but nonetheless important. For example, disabled people face daunting obstacles downtown in high traffic wide streets and frequently broken elevators and doorways.

Several findings struck me as particularly interesting. The downtown San Jose courthouse, as is the case with many large city downtown courthouses and in some smaller cities, is located as part of a clustering of other carceral institutions. These clusters typically include a jail, the police headquarters, and sometimes additional federal jails or immigration detention facilities. This clustering means that persons—defendants out of custody, but also witnesses, victims, family members, or jurors—must confront institutions that may trigger deep trauma from past encounters. They also face real risks of being stopped, arrested, or deported while passing by. The presence of encampments of unhoused people, one of which was present near the downtown San Jose court house during the research period, and which can be found in many downtowns, carries its own package of potential triggering experiences, most notably exposure to drug use and sales for those who may already be under some kind of criminal supervision or are in recovery from drug addiction. The logics of creating carceral clusters are likely driven by land costs and urban development planning, but have unintended consequences for those who may experience, in the shadows or all those carceral institutions, something like a “carceral citizenship.”

Interior design and scale also matter. Large courthouses (downtown San Jose has 30 courtrooms) can be incredibly confusing to those who are first time users. This is compounded by hidden front entrances, long security lines that may snake in front of a courthouse, and lack of adequate signage for finding the right court room. Those assigned to a more suburban courthouse will find the entry to the building and related access issues like parking or bike access far easier, and restaurants more abundant, but may find the differences in class and racial make-up around the courthouse alienating. Inside, courtrooms are generally poorly designed to facilitate audio or visual access by the public (and sometimes even defendants) to the statements being made from the bench, by lawyers, or by court clerks. The resulting confusion and chaotic soundscape undoubtedly contribute to a sense of dehumanization.

At a time when much interest is generated by the creation of innovative new courts for defendants who are veterans, unhoused, or in need of mental health or substance abuse treatment, Spatial Burdens is a powerful reminder that the past will live on in the built environment, both around and inside the courthouse. Until we change those, the messages being sent by well-intended substantive reforms may be muddled at best. In the meantime, too many ordinary people will remain psychologically stalled before the gates of the law.

The post Burden in the Court! The Spatial Powers of Courts and Their Environment appeared first on Criminal Law.

Darryl Brown

The United States imprisons about 1.8 million people—more than any other nation. Roughly a quarter of those behind bars have not been convicted; they are detained while awaiting a court hearing. The burden is not evenly distributed: the share of black men in prison is three times their share of the national population. What explains America’s commitment to spending so much to lock up so many? In her previous book, Prisoners of Politics (2019), Rachel Barkow put the blame squarely on the fact that U.S. criminal justice policy at every level—local, state, and federal—is made by politicians and voters rather than agencies informed insulated from political pressure and informed by expert analysis. The public perennially demands tough-on-crime policies. Legislators oblige by enacting ever-harsher laws. Elected prosecutors enforce those laws. Reforms won in recent years through politics—election of progressive prosecutors, bail reform, decriminalization of marijuana, and modest sentencing law changes—barely moved the needle.

Barkow’s new book, Justice Abandoned, starts with the same convincing premise: populist and politicized policymaking generally sustains the laws and practices that produce mass incarceration. She has now shifted both the focus for blame and reform to the U.S. Supreme Court, a choice both obvious and odd. Obvious because the Court clearly deserves some of the blame: for decades it has ruled, in a variety of cases that Barkow astutely unpacks, that the Constitution puts few restraints on the policies that have filled American prisons and jails. Odd because if there is one institution less likely than Congress or prosecutors to put the brakes on mass incarceration, it would seem to be the current Court.

Barkow tells a lucid, insightful story about how the United States went from a country with relatively ordinary levels of imprisonment for most of the twentieth century to the world leader in depriving citizens of liberty. Policymakers had to overcome several hurdles. To arrest, prosecute, convict and imprison a lot more people requires more money for more police, prosecutors, public defenders, judges, and prison cells. Barkow explains how the Court approved policies that made arrest, prosecution, and punishment cheaper and easier—and in the process more cruel, more biased, less accurate, and less just.

The number of people in pretrial detention—often for months—rapidly increased after Congress passed the 1984 Bail Reform Act, which for the first time authorized jailing defendants not for their past criminal conduct but based on a judge’s prediction about their future dangerousness. The Supreme Court approved this new basis for detention on the dubious rationale that jail before trial is not “punishment” but merely a “regulatory” practice to prevent crime. States quickly passed similar laws. Over the next two decades, pretrial detention skyrocketed. Before the BRA, one-quarter of people charged with federal crimes were jailed pretrial. Today, about three-quarters are; average detention time has grown from two months to nearly twelve. Whether this change makes the world safer is basically unknowable. While we know most defendants out on bail don’t commit another crime, we have no idea how many were needlessly detained based on an erroneous prediction about their dangerousness.

Most people in prisons have been convicted of something, but very few by a jury. Nearly all pled guilty. Defendants have always had the option admit guilt, but only in the last half century did the Supreme Court endorse plea bargaining and allow prosecutors to condition guilty pleas on defendants waiving not only trials but also rights to appeal, to challenge illegal searches, or to see government evidence. It also approved pressure tactics such as making one defendant’s plea bargain conditional on another defendant also pleading guilty. In the Court’s view, none of this was coercive. A choice between pleading guilty to a five-year sentence or a mandatory life sentence after trial merely gives defendants a free choice. And if defendants plead guilty freely, surely none confess to crimes they didn’t commit. Yet, as Barkow notes, a shocking number of wrongful convictions—confirmed by DNA evidence—were the result of defendants who pled guilty. The Court ignored the foreseeable strategy its rulings enabled: prosecutors use the greatest pressure when their evidence of guilt is weakest. When government’s case is strong, prosecutors can simply show their cards, which convinces most defendants to plead guilty for even modest leniency.

Once these tactics were widely adopted, the share of trial convictions shrank from an already-modest twenty percent in the 1970s to barely three percent. Legislatures pitched in by enacting harsher sentencing laws to give prosecutors more bargaining leverage: the harsher the potential post-trial sentence, the more readily defendants agree to avoid it through a plea bargain. Average sentences grew in the last four decades along with the number of convictions. Barkow reports that life sentences proliferated, so that one in seven prisoners are now in for life—one in five for black prisoners. Barkow describes how the Court concluded that the Constitution had effectively nothing to say about excessive prison sentences. Despite the Eighth Amendment’s ban on cruel and unusual punishments, the Court ruled it was not judges’ job to decide whether sentences are so unconstitutionally disproportionate—even when, as in Harmelin v. Michigan, a first offender’s sentence for having less than a kilogram of cocaine was life-without-parole.

Imprisonment is expensive. States have long minimized costs through overcrowding and failing to provide decent food and basic health care. In the 1970s, these practices were so widespread that lower courts declared prison conditions unconstitutional in thirty-one states. Then the Supreme Court decided, in 1981, that the Constitution gave states wide leeway on overcrowding and substandard conditions. Barkow suggests that the Court feared that it was up against realistic limits of judicial power. The Court observed in one case that, if it held that the Constitution required every inmate to have a nine-by-six foot space two-thirds of all inmates would be deemed imprisoned unconstitutionally.

Whether states would have ignored such strictures is speculative but doubtful. States did as little as possible in the face of court-ordered reforms, but none defied judicial authority. In 2011, when the Supreme Court narrowly affirmed a lower court order for California to address its grossly overcrowded prisons—in which, among other cruelties, mentally ill inmates were locked in cages rather than given medical treatment—the state complied. Barkow joins other scholars in the conclusion that, by gutting constitutional oversight of prisons, the Court removed what could have been a meaningful constraint on the steady increase in prison and jail populations.

Still, it remains an open question what prisons would look like had the Court opted for a different path across the landmark decisions Barkow criticizes. There are reasons to think Barkow is right: the Court could have hindered mass incarceration by interpreting key constitutional provisions in line with its earlier decisions and in accord with plausible understandings of the Constitution’s original meaning. Courts’ job is sometimes to make clear that the Constitution prohibits some policy choices favored by legislatures and voters. Doing so, they often succeed. Lower courts once forced meaningful reforms of some of the worst prisons. When a federal court found overwhelming evidence of racially biased stop-and-frisk practices by New York City police, the NYPD changed its policy without measurable effect on crime prevention.

On the other hand, sometimes bad-but-popular policies find ways around judicial roadblocks. Southern school districts for decades avoided Brown v. Board of Education’s bar on racial segregation. Perhaps prosecutors and trial judges would have found other ways to replace trials with guilty pleas even without the harshest pressure tactics for plea bargains. If forced to improve prison conditions, maybe states would have ramped up leasing prison labor. Prohibiting the most extreme sentencing laws might have yielded only slightly less extreme ones. When the Court banned mandatory life-without-parole sentences for teenage offenders, the effect in some states was barely noticeable: they now impose life sentences with a chance for parole decades in the future.

However that alternate world might have turned out, criticizing the Supreme Court’s mass incarceration decisions at this late date is more an argument about the consequences of flawed constitutional interpretation than a roadmap for reform. For the foreseeable future, the Court will have a conservative super-majority with no inclination to revisit Barkow’s hit-list of bad precedents, all of which were put in place by less conservative versions of the Court. Realistic prospects for reform, dim though they are, more likely rest with the process in which Barkow understandably places little hope: democratic politics. There has, in fact, been some modest progress through—among other things—reform of bail, sentencing, and marijuana laws and mass clemency for certain drug offenses. Those reforms are far too little to reverse a half-century of mass incarceration. But for now, they seem to be the most we can expect.

The post The Supreme Court’s Failure to Stop the Politics of Mass Incarceration appeared first on Criminal Law.

Maximo Langer

The Fourth Amendment right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures has been celebrated as one of the most important bulwarks of freedom in American law.¹ One of the main reasons for such a belief is that when warrants are required, they must be issued by a neutral and detached magistrate.² Aside from anecdotal knowledge by legal practitioners and a very small set of empirical studies, we know very little about the actual process of search and seizure warrants. Unwarranted Warrants? An Empirical Analysis of Judicial Review in Search and Seizure by Miguel F.P. de Figueiredo, Brett Hashimoto and Dane Thorley is important because it fills a vacuum in this regard by presenting the largest empirical study on the judicial review of search and seizure warrants in the United States to date. It is also important because its empirical findings reveal substantial shortcomings in the warrant process in Utah that are likely present in other jurisdictions in the United States.

The authors base their analysis on a comprehensive dataset from Utah’s statewide electronic warrant platform. The dataset includes digital timestamps, full warrant affidavit texts of approved warrants, and identifying information about judges and officers. (P. 1983.) The digital timestamps allow the authors to analyze the time judicial officers take in reviewing warrant applications, and scraping the pdfs of the warrants and the warrant applications allowed them to collect data on the length, complexity, facts, and legal content of the warrants. (P. 1984.) In addition, the use of both quantitative and qualitative data allows the authors to get a more nuanced picture and analysis of the judicial review of warrant applications.

The most interesting part of the article is its empirical findings.

In terms of review time of approved warrant applications, the median review times by judicial officers was only three minutes, with 10% reviewed and signed in under sixty seconds. (Pp. 1996 et seq., 2040.) In this regard, the authors found substantial disparities in their review times among judges, with a set of judges having a median review time of less than two minutes and a few having a median review time of less than one minute. (P. 2016.) Using a series of regressions, the authors then examined whether judges’ characteristics were correlated with review time, finding that the length of judge’s tenure in years and the background as a defense attorney were correlated with shorter review time. (P. 2017 et seq.) The authors understandably found this last result surprising and hypothesize that one potential mechanism at play is that judges with “… such a professional background provided them with more opportunities to critically evaluate warrants and see the most common reasons for approved warrants to be later overturned.” (P. 2023.) Alternatively, given the way judges are appointed in Utah, it is possible that “judicial candidates with criminal defense backgrounds may have to overcome a presumption of being soft on crime.” (P. 2023.)

In terms of the rate of approval of warrant applications, the authors found that 93.56% of warrant affidavits were approved in their initial submission, and that once resubmissions were included the approval was 98.14%. (Pp. 2025-26.) (The authors report these numbers as part of their main findings. But they also explain that if they included the submissions that were withdrawn before a judge could review them, the approval rate of initial submissions was 89.90%, and of submissions and resubmissions was 96.96%. (P. 2026.)) In this context, their study finds wide disparities between judges; some approved almost 100% of affidavits they received, while others approved less than 80%.

The authors run a series of regressions on approval-not approval of warrant applications as the dependent variable and judicial characteristics, finding statistically significant correlations that judges with law degrees and, somewhat surprisingly, judges who previously served as prosecutors, were less likely to approve warrant applications. (P. 2031-32.) The authors hypothesize that judges with a prosecutor background were less likely to approve because their prior work experience may have changed the way those judges approach and understand warrant review. (P. 2032.) Alternatively, they hypothesize that the interplay between prior legal practice and ideology may not go in the traditionally understood direction. (P. 2032.) They also found that male and white judges are more likely to approve warrant applications, which could be the result of them tending to be more conservative than nonwhite and female judges. (P. 2032.)

Regarding the interpretation of their main findings, the authors acknowledge that for many, their results will be another proof that the penal system is broken. (P. 2041.) But the authors conclude that their data do not show that all warrants are simply “rubber stamped”, since the initial approval rate of warrants reveals some level of judicial scrutiny. (Pp. 1967, 2015, 2028, 2029.)

The authors acknowledge that there is not a baseline on the rate of approval of warrant applications and on how long it should take to review them. (Pp. 1992-93, 1996, 2026, 2034, 2042.) They also acknowledge the likelihood that law enforcement officers learn (the judicial interpretation of) the legal standard and adjust their request accordingly. (P. 2026.)

However, the authors persuasively argue that these results are concerning for multiple reasons.

First, even if there is no baseline to assess how long a judicial assessment of warrant applications should take and even accounting for economies of scale, the authors argue that the review time of warrant affidavits of three minutes for the majority of affidavits and of under sixty seconds for ten percent of the warrants are “… often much more brief than the generally accepted understanding of the constitutional warrant requirement would anticipate.” (P. 1996.) In this regard, they find objectively problematic that there were judges who reviewed half of all their warrants in less than a minute. (P. 2016.)

In addition, the authors argue that given the speed at which warrants were reviewed, judges were missing some submissions that did not meet the legal standards, which would play a role in explaining the high judicial approval rate of warrant applications. (P. 2016.)

The authors also reason that the fact that most judges find that at least 4 to 5% of warrant applications do not meet the legal requirements suggest that those judges that approve all of the warrant applications they receive are not taking the warrant process the way they should. (Pp. 2029-30.)

The authors also engaged in a qualitative in-depth review of two subsets of randomly selected warrant approvals from their dataset that provided additional elements to have concerns about the practice of warrant review in Utah. (P. 2035.)

In explaining the shortcomings of judges’ warrant review in Utah, the authors do not attribute it to poor judging, but rather as the “inevitable result” of the jurisprudential nature of warrant review and extralegal factors that they list, such as the motivations of law enforcement of “ferreting out crime” that may bleed into the judge’s decision, the ex-parte and repeat-play nature of the warrant review process, judicial resource constraints and expediency, and the cognitive difficulty of reviewing warrants. (Pp. 1990, 2041.)

Their interpretation of their results thus concludes:

Taken together, we argue that our empirical and qualitative evidence raise serious concerns about the ability of the current warrant-review process to meet its call as the bulwark against police error or abuse…. If the system has these flaws, then we must call into question the efficacy of Supreme Court decisions that rely on the warrant process as a higher standard to preserve the privacy rights of the citizenry….” (P. 2042.)

Finally, the authors explore avenues for reform. First, they call for continued empirical study that states and local governments could facilitate by implementing data transparency and reporting requirements with respect to warrants. (P. 2043.) They also show skepticism about doctrinal reforms such as changing the legal standards for issuing warrants and for warrant review given how deeply embedded Fourth Amendment probable cause jurisprudence is and that doctrinal reform is primarily a back-end recourse. (P. 2044.) Instead, they find more promising policy reforms such as bans or restrictions on the use of no-knock warrants, requiring mandatory review by police-chiefs or prosecutors of certain types of warrants, and creating magistrate panels to review certain types of warrants. (Pp. 2044-45.) They also advocate for institutional and behavioral policies, such as external reviews—e.g., occasional, random audits of a judge’s warrants or police officer’s affidavits and warrant requests—ways for judges to become more self-informed about their own practices, and encouraging criminal defense attorneys to avail themselves of data on warrants to challenge warrants. (Pp. 2045-47.)

The post Warranted Doubts: An Empirical Study and Critique of Fourth Amendment Practice appeared first on Criminal Law.

Jessica M. Eaglin

Data-driven policing technologies. By now, you can probably name a few off the top of your head. Facial recognition technology, GPS location monitoring devices, Automated License Plate Readers, ShotSpotter, and of course, predictive policing software. All are common examples of surveillance tools used by police which rely on algorithms to process large amounts of data. But what are these tools? Traditionally, we understand them as “technology.” In her recent article, Police Technology Experiments, Elizabeth Joh considers whether and how legal engagement with these tools might change if we conceptualize these technologies as “experiments.” Because her novel framework begs important questions at the intersection of law, technology, and science in contemporary society, this is a must-read essay for legal scholars interested in policing, criminal law, and beyond.

Joh begins by explaining the current legal and social framework in which police technologies are evaluated. She defines police surveillance technologies as tools that make use of vast amounts of data and utilize algorithmic tools to sort, classify, analyze and produce inferences from that information for criminal investigation. These tools, she explains, exist within a scant regulatory environment. Investigative police surveillance does not trigger many (if any) Fourth Amendment restrictions. Further, data-driven policing is an increasingly dominant model of policing across the United States. Whether due to federal funding support and/or marketing and incentives from proprietary vendors, this model is expanding. Despite standout U.S. Supreme Court decisions like Carpenter v. United States and Riley v. California, very little exists in the way of comprehensive regulation on police departments’ use of these technologies.

In light of this scant regulatory environment, Joh proposes conceptualizing (and thus approaching) police surveillance technologies as “technology experiments on human subjects.” As experiments, these tools would be evaluated for their adherence to “scientific method,” with an emphasis on “well-designed testing.” She argues that “the unproven uses of an automated system by the police for surveillance and intervention on human subjects” would reorient our focus toward ethical considerations because they are tested on people and communities akin to biomedical and behavioral research. Such research is guided by principles of “respect for persons, beneficence, and justice.”

Joh contends that this change in framework could result in different questions and practices in law. First, it would require a working hypothesis that government officials would evaluate in advance of experimentation. Joh looks to three examples where police deploy information technology to demonstrate the lack of such a practice: the Chicago Police Department’s adoption of an algorithmic risk assessment model to identify individuals who have a high risk of perpetrating or being the victim of gun violence (its “Strategic Subject List”); the Chicago Police Department’s adoption of acoustic gunshot technology (ShotSpotter) to assist in the deployment of police officers; and the Los Angeles Police Department’s program to identify high-risk individuals for extra police attention via an algorithmic system (aka Operation LASER—Los Angeles Strategic Extraction and Restoration). In each instance, plausible hypotheses about the technology’s use—whether it is aimed to reduce violence, gun crimes, or bias in policing—would have been clearly contestable in advance of implementation. Joh points to the history of policing in Chicago and Los Angeles, along with Inspector General reports on the programs in each jurisdiction, to support this point. Moreover, evidence of each program’s failure to meet these goals after implementation would be obvious and pertinent to whether such programs should continue in a jurisdiction. Further, she contends that ethical considerations would be more prominent. The fact that these tools were deployed in areas largely populated by Black and Brown communities makes clear the unequal distribution of research benefits and burdens from an ethical point of view.

Ultimately, Joh contends, this framework makes visible and important various aspects of police surveillance technology’s expansion that are considered distinct from either technical or Fourth Amendment critiques. It is this last point that makes her essay so intriguing. Through it, Joh begs an important question about the blindspots that arise when a legal practice is considered a “technology” versus “science.” Characterizing police surveillance technologies as “experiments” demands that we take more seriously scientific standards which may be easily overlooked when the tools are characterized as a technology in criminal law.

Now, I am not convinced that this bioethical framework would lead to different practices among police departments, particularly for Black and Brown communities. We have a long history of using science as a tool of subordination alongside law. Indeed, bioethical regulations often exist because of abuses in scientific study concentrated among marginalized communities. Yet whether Joh’s framework actually leads to different outcomes among police departments is only part of the point. Joh’s essay underscores that we can frame information technology in criminal law as both science and technology. What kinds of issues arise the more we hew in one direction or the other is an important question for policing scholars, criminal law scholars, and beyond to consider going forward. This essay does a wonderful job bringing that question to the fore.

The post Science or Technology? The Regulation of Police Surveillance Tools appeared first on Criminal Law.