Issue 8

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. ↑

Criminal Violations

Violations of community supervision are major drivers of incarceration. Nearly four million people in the United States are serving terms of probation, parole, or supervised release, and one-third of them are eventually found in violation of a condition of their supervision, sending 350,000 people to prison each year. To reduce incarceration rates, criminal justice reformers have called for lower sentences for non-criminal “technical violations,” such as missed meetings, skipped curfews, etc.

In this Article, I offer the first comprehensive analysis of “criminal violations,” the other half of cases where people violate their supervision by committing new crimes. Based on an original empirical study of U.S. Sentencing Commission data and an examination of federal case law, I make three novel observations. First, despite the popular focus on technical violations, criminal violations are the primary drivers of punishment via revocation of supervised release, accounting for at least two-thirds of the total prison time imposed. Second, while technical violations punish non-criminal behavior, criminal violations drive punishment by increasing sentences for criminal convictions and making punishing crimes easier. Third, the immigration crime of illegal reentry accounts for as many as one-third of all revocations for felony violations, revealing that supervised release is no longer just a program of surveillance or support but also has become a tool of immigration enforcement.

Finally, after describing revocations for criminal violations in the federal criminal justice system, I argue that punishing criminal violations inflicts unfair double punishment and erodes constitutional rights. When defendants on supervised release commit new crimes, the better and fairer response is to prosecute them without revoking their supervision. The law of revocation opens an exception to the ordinary rules of criminal prosecution, which the federal government has generalized into a powerful engine of imprisonment.

Introduction

Violations of community supervision are major drivers of incarceration.1 1.Cf. Press Release, Phila. Dist. Att’y’s Off., New Philadelphia D.A.O. Policies Announced Mar. 21, 2019 to End Mass Supervision (Mar. 21, 2019), https://medium.com/philadelphia-justice/philadelphia-daos-policies-to-end-mass-supervision-fd5988cfe1f1 [https://perma.cc/7​M3F-2U24] (“Mass supervision is a major driver of mass incarceration.”).Show More Almost four million people in the United States are on probation, parole, or supervised release.2 2.Danielle Kaeble, U.S. Dep’t of Just., Probation and Parole in the U.S., 2020, at 1 (2021), https://bjs.ojp.gov/content/pub/pdf/ppus20.pdf [https://perma.cc/9RRN-7TVM].Show More One-third of them are eventually found in violation of their supervision, sending 350,000 people to prison each year and accounting for 45% of state prison admissions and 25% of the nation’s prison population.3 3.Adam Gelb, Juliene James, Amy Solomon & Brian Elderbroom, The PEW Charitable Trs., Probation and Parole Systems Marked by High Stakes, Missed Opportunities 9 (2018), https://www.pewtrusts.org/-/media/assets/2018/09/probation_and_parole_systems_marked_​by_high_stakes_missed_opportunities_pew.pdf [https://perma.cc/F4G4-AC2Z]; Council of State Gov’t Just. Ctr., Confined and Costly: How Supervision Violations Are Filling Prisons and Burdening Budgets (2019), https://csgjusticecenter.org/wp-content/uploads/2020/01/co​nfined-and-costly.pdf [https://perma.cc/QVS2-NN4L].Show More A coalition of probation and parole officials recently warned that “mass supervision” was contributing to “mass incarceration,” because, “[f]ar from being an aid to community reintegration as originally designed, community supervision too often serves as a tripwire to imprisonment, creating a vicious cycle of reincarceration.”4 4.See Statement on the Future of Probation & Parole in the United States, EXiT: Execs. Transforming Prob. & Parole (Nov. 13, 2020), https://www.exitprobationparole.org/statement [https://perma.cc/D2NF-5YJV].Show More

To reduce incarceration rates, criminal justice reformers have called for lower sentences for non-criminal “technical violations” like missing meetings with the probation officer, skipping curfew, or filing late paperwork.5 5.See Alex Roth, Sandhya Kajeepeta & Alex Boldin, Vera Inst. of Just., The Perils of Probation: How Supervision Contributes to Jail Populations 29 (2021), https://www.ve​ra.org/downloads/publications/the-perils-of-probation.pdf [https://perma.cc/T9H8-YG5D] (advocating for “eliminating incarceration for technical violations”); Reagan Daly, Mackenzie Deary, Victoria Lawson & Pavithra Nagarajan, CUNY Inst. for State & Loc. Governance, Pathways to Success on Probation: Lessons Learned from the First Phase of the Reducing Revocations Challenge 30–31 (2021), https://static1.squarespace.com/static/5fcea962a1b4d​771ad256fcc/t/61707b8a29d1471381fbcce8/1634761610960/10192021+Reducing+Revocations+v4.pdf [https://perma.cc/K9X3-QB8F] (recommending “limit[ing] the circumstances under which formal technical violations can be filed”); Tonja Jacobi, Song Richardson & Gregory Barr, The Attrition of Rights Under Parole, 87 S. Cal. L. Rev. 887, 930 (2014) (arguing “prison even for technical violations . . . is problematic”); Cecelia Klingele, Rethinking the Use of Community Supervision, 103 J. Crim. L. & Criminology 1015, 1047 (2013) (supporting “barring revocation as a sanction for many noncriminal violations”); see also Vincent Schiraldi, Explainer: How ‘Technical Violations’ Drive Incarceration, The Appeal (Mar. 23, 2021), https://theappeal.org/the-lab/explainers/explainer-how-technical-violations-drive-incarceration/[https://perma.cc/8ZTH-WGYA]; Andrea Fenster, Technical Difficulties: D.C. Data Shows How Minor Supervision Violations Contribute to Excessive Jailing, Prison Pol’y Initiative (Oct. 28, 2020), https://www.prisonpolicy.org/b​log/2020/10/28/dc_technical_violations [https://perma.cc/U5PX-N2Y5] (same); Stephen Handelman, Recidivism’s Hidden Drivers: ‘Technical Violations’ of Probation or Parole, The Crime Rep. (Mar. 5, 2020), https://web.archive.org/web/20200927112600/https://thec​rimereport.org/2020/03/05/the-hidden-driver-of-recidivism-technical-violations-of-probation​-or-parole/ [https://perma.cc/G2AB-ZE7Z] (same); Eli Hager, At Least 61,000 Nationwide Are in Prison for Minor Parole Violations, The Marshall Project (Apr. 23, 2017, 10:00 PM), https://www.themarshallproject.org/2017/04/23/at-least-61-000-nationwide-are-in-prison-for-minor-parole-violations [https://perma.cc/F6NB-RFX4] (same).Show More In 2019, Philadelphia District Attorney Larry Krasner announced an “effort to . . . bring balance back to sentencing” by limiting sentencing recommendations for technical violations to between thirty and sixty days’ imprisonment.6 6.Press Release, Phila. Dist. Att’y’s Off., supra note 1.Show More The year after, lawmakers from three states joined with Professors Lara Bazelon and Shon Hopwood to propose legislation reorienting community supervision toward “rehabilitative, rather than surveillance, goals” by eliminating punishment “for asserted technical violations (i.e. violations that are non-criminal in nature).”7 7.Lara Bazelon, Shon Hopwood, Jehan Gordon-Booth, Leslie Herod & Sydney Kamlager, The Just. Collaborative Sent’g Taskforce, Sample Legislation on Probation 7 (2020), https://30glxtj0jh81xn8rx26pr5af-wpengine.netdna-ssl.com/wp-content/uploads/2020/12/20.​10_Model-Policy-for-Probation-1.pdf [https://perma.cc/378H-XECN]; see also Klingele, supra note 5, at 1047–49 (describing legislative efforts to reduce punishments for technical violations).Show More Even the staid U.S. Sentencing Commission recently announced a plan to reexamine how the federal sentencing guidelines “treat revocations . . . for conduct constituting a violation . . . that does not result in an arrest, criminal charge, or conviction,”8 8.Final Priorities for Amendment Cycle, 83 Fed. Reg. 43956, 43956–57 (Aug. 28, 2018).Show More explaining that it had “received comment over the years regarding the impact of revocations, much of which focused on the impact of technical violations.”9 9.Tracey Kyckelhahn & S. Alexander Maisel, U.S. Sent’g Comm’n, Revocations Among Federal Offenders 13 (2019), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2019/20190131_Revocations.pdf [https://perma.cc/5742-T3TQ].Show More

The outcry over technical violations is understandable. Approximately half of all revocations are for technical violations, yet by definition this behavior is not ordinarily considered worthy of incarceration.10 10.Council of State Gov’t Just. Ctr., supra note 3.Show More By imprisoning people for non-criminal conduct, technical violations widen “the net of criminal social control.”11 11.Marcy R. Podkopacz & Barry C. Field, The Back-Door to Prison: Waiver Reform, “Blended Sentencing,” and the Law of Unintended Consequences, 91 J. Crim. L. & Criminology 997, 1070 (2001).Show More In practice, moreover, perfect compliance with the conditions of supervision is difficult, if not impossible,12 12.See Daly et al., supra note 5, at 15; ACLU Hum. Rts. Watch, Revoked: How Probation and Parole Feed Mass Incarceration in the U.S. 3 (2020), https://www.aclu.org/report/aclu-and-hrw-report-revoked-how-probation-and-parole-feed-mass-incarceration-united-states [https://perma.cc/TY3L-YD8F].Show More and penalizing minor infractions may encourage recidivism rather than reintegration.13 13.Carrie Pettus-Davis & Stephanie Kennedy, Inst. for Just. Rsch. and Dev., Going Back to Jail Without Committing a Crime: Early Findings from a Multi-State Trial 3 (2020), https://ijrd.csw.fsu.edu/sites/g/files/upcbnu1766/files/media/images/publication_pdfs/Going_Back_to_Jail.pdf [https://perma.cc/Y2Z8-RVLZ].Show More Finally, defendants charged with technical violations seem the most sympathetic—and therefore the most likely to win popular support for reform.14 14.As Professor Cecelia Klingele observed, the distinction between criminal and technical violations does not always reflect “the severity of the conduct.” Klingele, supra note 5, at 1049. Minor crimes like “[d]isorderly conduct” may not “signify a true threat to the community,” while technical violations like a “pedophile who stalks the playground” can “involve dangerous behavior.” Id.Show More

Concentrating on technical violations, however, misses a major piece of the story: the other half of revocations based on new criminal conduct,15 15.Cf. Council of State Gov’t Just. Ctr., supra note 3 (reporting that technical violations account for approximately half of all state prison admissions for probation and parole revocations); Daly et al., supra note 5, at 20 (reporting that technical violations account for between 61% and 90% of all petitions to revoke probation in some jurisdictions).Show More which I refer to in this Article as “criminal violations.” By state and federal law, every term of community supervision includes a condition requiring that the defendant not commit another crime,16 16.See, e.g., 18 U.S.C. § 3583(d) (federal supervised release); id. § 3563(a) (federal probation); id. § 4209(a) (1982) (federal parole); Fiona Doherty, Obey All Laws and Be Good: Probation and the Meaning of Recidivism, 104 Geo. L.J. 291, 301 (2016) (state probation); see also Neil P. Cohen, The Law of Probation and Parole § 8:1 (2021) (“Probation and parole orders routinely contain a condition which, written in general terms, prohibits offenders from violating the law. . . . This condition appears in both federal and state probation and parole requirements.”).Show More which Professor Fiona Doherty has described as the “obey all laws” condition of supervision.17 17.Doherty, supra note 16, at 301–02.Show More If a person on probation, parole, or supervised release engages in new criminal activity, then the government can revoke their supervision and imprison them as punishment for their criminal violation.18 18.See infra Section II.B.Show More

Until now, there has been little to no research on how criminal violations drive punishment. In 2021, researchers from the CUNY Institute for State and Local Government published a study on probation revocations in ten U.S. counties, reporting that “technical violations—those issued purely for noncompliance . . . that do not involve new criminal activity”—range from 61% to 90% of all violations filed in some jurisdictions.19 19.Daly et al., supra note 5, at 9, 20.Show More By implication, of course, the remaining 10% to 39% of violations must have been for new criminal conduct. The study observed that these “new crime” violations were more likely to end in revocation than were technical violations, yet it was “not clear . . . what types of new crimes are tied to revocations.”20 20.Id. at 20, 32.Show More The authors highlighted “new crime” violations as an “important question to be further explored in future research,” emphasizing that their “prevalence” made “addressing them . . . critical for significantly reducing revocations overall.”21 21.Id. at 32.Show More

The popular focus on technical violations is akin to the well-meaning but limited calls for reducing punishment of “nonviolent drug offenders.”22 22.James Forman Jr., Locking Up Our Own: Crime and Punishment in Black America 220 (2017).Show More As Professor James Forman, Jr., has explained, “America’s incarceration rates for nonviolent drug offenders are unprecedented and morally outrageous, but they are not ‘the real reason our prison population is so high.’”23 23.Id. at 228.Show More In reality, what drives mass incarceration are long sentences for violent crimes.24 24.See John Pfaff, Decarceration’s Blindspots, 16 Ohio St. J. Crim. L. 253, 265 (2019).Show More Even if the United States released every prisoner convicted of a non-violent drug offense, it still would have the largest prison population in the world.25 25.Forman, supra note 22, at 228.Show More

Just like emphasizing nonviolent drug offenders, focusing only on technical violations is understandable yet incomplete. Punishments for non-criminal technical violations may be excessive or even unfair, yet they account for only half of all revocations. Even if the government stopped punishing technical violations entirely, punishments for criminal violations would still drive up to half of all revocations in some jurisdictions.26 26.See Council of State Gov’t Just. Ctr., supra note 3 (reporting that technical violations account for approximately half of all state prison admissions for probation and parole revocations); Daly et al., supra note 5, at 20 (reporting that technical violations account for between 61% and 90% of all petitions to revoke probation in some jurisdictions).Show More To understand the connection between community supervision and mass incarceration, therefore, we must study the role of criminal violations.

To be clear: I am not suggesting that technical violations are unimportant because they result in less prison time. Even a short prison sentence “inflicts a ‘grievous loss’”27 27.Morrissey v. Brewer, 408 U.S. 471, 482 (1972).Show More that may “imperil [a person’s] job, interrupt his source of income, and impair his family relationships.”28 28.Gerstein v. Pugh, 420 U.S. 103, 114 (1975).Show More I also recognize that people under supervision who commit new crimes are not conventionally sympathetic.29 29.Johnson v. United States, 529 U.S. 694, 709–10 (2000) (describing violators as “problem case[s] among problem cases”).Show More Nevertheless, federal judges revoke supervised release and send people to prison for criminal violations in tens of thousands of cases every year and impose hundreds of thousands of months of imprisonment. Criminal violations are thus a critical issue in supervision law and policy that deserve our attention and respect.

In this Article, I offer the first comprehensive analysis of how criminal violations drive punishment, focusing on the federal system of supervised release.30 30.I do not address probation, which is community supervision in lieu of imprisonment. See 18 U.S.C. § 3561(a); U.S. Sent’g Guidelines Manual § 7A2(a) (U.S. Sent’g Comm’n 2018). Probation is reserved for less serious crimes and imposed in less than 10% of cases. See 18 U.S.C. § 3561(a); U.S. Sent’g Comm’n, 2019 Annual Report and Sourcebook of Federal Sentencing Statistics 61 fig.6 (2019), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-and-sourcebooks/2019/2019-Annual-Report-and-Sourcebook.pdf. [https://perma.cc/AJ5N-TU7A].Show More The federal supervision system is a good example because it is one of the ten largest in the country31 31.See Doherty, supra note 16, at 298–300.Show More and “inevitably acts as a model, both positive and negative, for developments in the states.”32 32.See Frank O. Bowman, III, The Failure of the Federal Sentencing Guidelines: A Structural Analysis, 105 Colum. L. Rev. 1315, 1318, 1320 (2005).Show More Information on federal supervision violations is also publicly available. In July 2020, the U.S. Sentencing Commission published a report on federal supervision violations, which “[f]or the first time” made available “data collected from documents related to revocation hearings,” including a database of 108,115 revocation hearings in federal district courts between 2013 and 2017.33 33.U.S. Sent’g Comm’n, Federal Probation and Supervised Release Violations 1, 12–13 (2020) [hereinafter Violations], https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2020/20200728_Violations.pdf. [https://perma.cc/J3VH-B9T2].Show More Because federal courts ordinarily “do not use a standardized reporting system for sentences imposed following violations,” the Commission’s revocation database offers an extraordinary opportunity for understanding this subterranean layer of the federal criminal justice system.34 34.Id. at 12. Unfortunately, the Commission only collected data on the five years between 2013 to 2017, so we remain in the dark on revocations outside this time frame.Show More

Through an original empirical study of the revocation database and examination of federal case law, I sought to answer three basic questions about how criminal violations drive punishment: (1) How much incarceration is attributable to criminal violations? (2) What is the function of criminal violations in the federal criminal justice system? And (3) What is the most commonly punished criminal violation? In answering these questions, I uncovered significant problems in the law of revocation, which led me to ask a fourth question: Is revoking supervised release for criminal violations justified or fair?

Part I of this Article reviews the law and history of supervised release. Part II describes my empirical and legal analysis of revocations for criminal violations in the federal system, which found they drive two-thirds of the total prison time imposed by increasing sentences for criminal convictions and making punishment easier for the government. Part III presents my analysis showing that the immigration crime of illegal reentry is one of the most commonly punished criminal violations and revealing that supervised release has become part of the “crimmigration” system. Part IV argues that revoking supervised release for criminal violations inflicts unfair double punishment and erodes constitutional rights, and therefore prosecution without revocation is a better and fairer way to punish crimes committed under community supervision. Finally, the Conclusion suggests that the law of revocation opens an exception to the ordinary rules of prosecution, which the U.S. Supreme Court, the Sentencing Commission, and the U.S. Department of Justice have generalized into a major engine of imprisonment.

  1. Cf. Press Release, Phila. Dist. Att’y’s Off., New Philadelphia D.A.O. Policies Announced Mar. 21, 2019 to End Mass Supervision (Mar. 21, 2019), https://medium.com/philadelphia-justice/philadelphia-daos-policies-to-end-mass-supervision-fd5988cfe1f1 [https://perma.cc/7​M3F-2U24] (“Mass supervision is a major driver of mass incarceration.”). ↑
  2. Danielle Kaeble, U.S. Dep’t of Just., Probation and Parole in the U.S., 2020, at 1 (2021), https://bjs.ojp.gov/content/pub/pdf/ppus20.pdf [https://perma.cc/9RRN-7TVM]. ↑
  3. Adam Gelb, Juliene James, Amy Solomon & Brian Elderbroom, The PEW Charitable Trs., Probation and Parole Systems Marked by High Stakes, Missed Opportunities 9 (2018), https://www.pewtrusts.org/-/media/assets/2018/09/probation_and_parole_systems_marked_​by_high_stakes_missed_opportunities_pew.pdf [https://perma.cc/F4G4-AC2Z]; Council of State Gov’t Just. Ctr., Confined and Costly: How Supervision Violations Are Filling Prisons and Burdening Budgets (2019), https://csgjusticecenter.org/wp-content/uploads/2020/01/co​nfined-and-costly.pdf [https://perma.cc/QVS2-NN4L]. ↑
  4. See Statement on the Future of Probation & Parole in the United States, EXiT: Execs. Transforming Prob. & Parole (Nov. 13, 2020), https://www.exitprobationparole.org/statement [https://perma.cc/D2NF-5YJV]. ↑
  5. See Alex Roth, Sandhya Kajeepeta & Alex Boldin, Vera Inst. of Just., The Perils of Probation: How Supervision Contributes to Jail Populations 29 (2021), https://www.ve​ra.org/downloads/publications/the-perils-of-probation.pdf [https://perma.cc/T9H8-YG5D] (advocating for “eliminating incarceration for technical violations”); Reagan Daly, Mackenzie Deary, Victoria Lawson & Pavithra Nagarajan, CUNY Inst. for State & Loc. Governance, Pathways to Success on Probation: Lessons Learned from the First Phase of the Reducing Revocations Challenge 30–31 (2021), https://static1.squarespace.com/static/5fcea962a1b4d​771ad256fcc/t/61707b8a29d1471381fbcce8/1634761610960/10192021+Reducing+Revocations+v4.pdf [https://perma.cc/K9X3-QB8F] (recommending “limit[ing] the circumstances under which formal technical violations can be filed”); Tonja Jacobi, Song Richardson & Gregory Barr, The Attrition of Rights Under Parole, 87 S. Cal. L. Rev. 887, 930 (2014) (arguing “prison even for technical violations . . . is problematic”); Cecelia Klingele, Rethinking the Use of Community Supervision, 103 J. Crim. L. & Criminology 1015, 1047 (2013) (supporting “barring revocation as a sanction for many noncriminal violations”); see also Vincent Schiraldi, Explainer: How ‘Technical Violations’ Drive Incarceration, The Appeal (Mar. 23, 2021), https://theappeal.org/the-lab/explainers/explainer-how-technical-violations-drive-incarceration/[https://perma.cc/8ZTH-WGYA]; Andrea Fenster, Technical Difficulties: D.C. Data Shows How Minor Supervision Violations Contribute to Excessive Jailing, Prison Pol’y Initiative (Oct. 28, 2020), https://www.prisonpolicy.org/b​log/2020/10/28/dc_technical_violations [https://perma.cc/U5PX-N2Y5] (same); Stephen Handelman, Recidivism’s Hidden Drivers: ‘Technical Violations’ of Probation or Parole, The Crime Rep. (Mar. 5, 2020), https://web.archive.org/web/20200927112600/https://thec​rimereport.org/2020/03/05/the-hidden-driver-of-recidivism-technical-violations-of-probation​-or-parole/ [https://perma.cc/G2AB-ZE7Z] (same); Eli Hager, At Least 61,000 Nationwide Are in Prison for Minor Parole Violations, The Marshall Project (Apr. 23, 2017, 10:00 PM), https://www.themarshallproject.org/2017/04/23/at-least-61-000-nationwide-are-in-prison-for-minor-parole-violations [https://perma.cc/F6NB-RFX4] (same). ↑
  6. Press Release, Phila. Dist. Att’y’s Off., supra note 1. ↑
  7. Lara Bazelon, Shon Hopwood, Jehan Gordon-Booth, Leslie Herod & Sydney Kamlager, The Just. Collaborative Sent’g Taskforce, Sample Legislation on Probation 7 (2020), https://30glxtj0jh81xn8rx26pr5af-wpengine.netdna-ssl.com/wp-content/uploads/2020/12/20.​10_Model-Policy-for-Probation-1.pdf [https://perma.cc/378H-XECN]; see also Klingele, supra note 5, at 1047–49 (describing legislative efforts to reduce punishments for technical violations). ↑
  8. Final Priorities for Amendment Cycle, 83 Fed. Reg. 43956, 43956–57 (Aug. 28, 2018). ↑
  9. Tracey Kyckelhahn & S. Alexander Maisel, U.S. Sent’g Comm’n, Revocations Among Federal Offenders 13 (2019), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2019/20190131_Revocations.pdf [https://perma.cc/5742-T3TQ]. ↑
  10. Council of State Gov’t Just. Ctr., supra note 3. ↑
  11. Marcy R. Podkopacz & Barry C. Field, The Back-Door to Prison: Waiver Reform, “Blended Sentencing,” and the Law of Unintended Consequences, 91 J. Crim. L. & Criminology 997, 1070 (2001). ↑
  12. See Daly et al., supra note 5, at 15; ACLU Hum. Rts. Watch, Revoked: How Probation and Parole Feed Mass Incarceration in the U.S. 3 (2020), https://www.aclu.org/report/aclu-and-hrw-report-revoked-how-probation-and-parole-feed-mass-incarceration-united-states [https://perma.cc/TY3L-YD8F]. ↑
  13. Carrie Pettus-Davis & Stephanie Kennedy, Inst. for Just. Rsch. and Dev., Going Back to Jail Without Committing a Crime: Early Findings from a Multi-State Trial 3 (2020), https://ijrd.csw.fsu.edu/sites/g/files/upcbnu1766/files/media/images/publication_pdfs/Going_Back_to_Jail.pdf [https://perma.cc/Y2Z8-RVLZ]. ↑
  14. As Professor Cecelia Klingele observed, the distinction between criminal and technical violations does not always reflect “the severity of the conduct.” Klingele, supra note 5, at 1049. Minor crimes like “[d]isorderly conduct” may not “signify a true threat to the community,” while technical violations like a “pedophile who stalks the playground” can “involve dangerous behavior.” Id. ↑
  15. Cf. Council of State Gov’t Just. Ctr., supra note 3 (reporting that technical violations account for approximately half of all state prison admissions for probation and parole revocations); Daly et al., supra note 5, at 20 (reporting that technical violations account for between 61% and 90% of all petitions to revoke probation in some jurisdictions). ↑
  16. See, e.g., 18 U.S.C. § 3583(d) (federal supervised release); id. § 3563(a) (federal probation); id. § 4209(a) (1982) (federal parole); Fiona Doherty, Obey All Laws and Be Good: Probation and the Meaning of Recidivism, 104 Geo. L.J. 291, 301 (2016) (state probation); see also Neil P. Cohen, The Law of Probation and Parole § 8:1 (2021) (“Probation and parole orders routinely contain a condition which, written in general terms, prohibits offenders from violating the law. . . . This condition appears in both federal and state probation and parole requirements.”). ↑
  17. Doherty, supra note 16, at 301–02. ↑
  18. See infra Section II.B. ↑
  19. Daly et al., supra note 5, at 9, 20. ↑
  20. Id. at 20, 32. ↑
  21. Id. at 32. ↑
  22. James Forman Jr., Locking Up Our Own: Crime and Punishment in Black America 220 (2017). ↑
  23. Id. at 228. ↑
  24. See John Pfaff, Decarceration’s Blindspots, 16 Ohio St. J. Crim. L. 253, 265 (2019). ↑
  25. Forman, supra note 22, at 228. ↑
  26. See Council of State Gov’t Just. Ctr., supra note 3 (reporting that technical violations account for approximately half of all state prison admissions for probation and parole revocations); Daly et al., supra note 5, at 20 (reporting that technical violations account for between 61% and 90% of all petitions to revoke probation in some jurisdictions). ↑
  27. Morrissey v. Brewer, 408 U.S. 471, 482 (1972). ↑
  28. Gerstein v. Pugh, 420 U.S. 103, 114 (1975). ↑
  29. Johnson v. United States, 529 U.S. 694, 709–10 (2000) (describing violators as “problem case[s] among problem cases”). ↑
  30. I do not address probation, which is community supervision in lieu of imprisonment. See 18 U.S.C. § 3561(a); U.S. Sent’g Guidelines Manual § 7A2(a) (U.S. Sent’g Comm’n 2018). Probation is reserved for less serious crimes and imposed in less than 10% of cases. See 18 U.S.C. § 3561(a); U.S. Sent’g Comm’n, 2019 Annual Report and Sourcebook of Federal Sentencing Statistics 61 fig.6 (2019), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-and-sourcebooks/2019/2019-Annual-Report-and-Sourcebook.pdf. [https://perma.cc/AJ5N-TU7A]. ↑
  31. See Doherty, supra note 16, at 298–300. ↑
  32. See Frank O. Bowman, III, The Failure of the Federal Sentencing Guidelines: A Structural Analysis, 105 Colum. L. Rev. 1315, 1318, 1320 (2005). ↑
  33. U.S. Sent’g Comm’n, Federal Probation and Supervised Release Violations 1, 12–13 (2020) [hereinafter Violations], https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2020/20200728_Violations.pdf. [https://perma.cc/J3VH-B9T2]. ↑

  34. Id. at 12. Unfortunately, the Commission only collected data on the five years between 2013 to 2017, so we remain in the dark on revocations outside this time frame. ↑

Life or Death: Employing State Constitutional Principles of Proportionality to Combat the Extreme Sentencing of Emerging Adults

The U.S. Supreme Court has repeatedly held that, when facing criminal punishment, juvenile offenders must be treated differently from adults. Because those under the age of eighteen lack maturity, have heightened vulnerability to external influence, and possess a unique capacity for rehabilitation, the imposition of extreme sentences—including the death penalty, mandatory life without parole, and discretionary life without parole for non-homicide offenses—is disproportionate and unconstitutional under the Eighth Amendment.

Emerging neuroscientific research strongly indicates that the immaturity, impressionability, and corrigibility of juveniles are also characteristics of emerging adults, defined here as individuals ages eighteen through twenty. Courts, however, have consistently resisted extending Federal Eighth Amendment protections to this demographic. This Note therefore proposes challenging the extreme sentencing of emerging adults under state, instead of federal, constitutional law. All fifty states prohibit cruel and/or unusual punishment, or its equivalent, in their state constitution. Further, recent litigation in Washington and Illinois demonstrates how successful challenges to disproportionate emerging-adult sentencing under state constitutional law can be achieved. This Note advocates that litigants launch facial challenges, in particular, under state constitutional provisions as a desirable mechanism for change.

Introduction

In 2015, Jonas David Nelson was convicted of first-degree murder for the premeditated shooting of his father.1 1.Nelson v. State, 947 N.W.2d 31, 33 (Minn. 2020), cert. denied, 141 S. Ct. 2518 (2021).Show More On the day of the offense, Mr. Nelson was eighteen years and one week old.2 2.Id.Show More He was subsequently sentenced to a mandatory term of life imprisonment without the possibility of parole, in accordance with Minnesota law.3 3.Id. at 34.Show More Despite the fact that the record was “replete with evidence of [Mr.] Nelson’s cognitive and social delays and years of psychological and emotional abuse,”4 4.Id. at 40.Show More the Minnesota Supreme Court upheld his mandatory-life-without-parole sentence on both direct appeal and upon request for postconviction relief.5 5.Id. at 34, 40.Show More As powerfully noted by Justice Chutich in dissent, Mr. Nelson was given “the functional equivalent of a death sentence, without any consideration of him, his personality, his upbringing, or his psychological attributes, solely because the offense occurred seven days after his eighteenth birthday.”6 6.Id.at 41 (Chutich, J., dissenting).Show More

The U.S. Supreme Court has repeatedly held that, when facing criminal punishment, juvenile offenders—i.e., those under the age of eighteen—must be treated differently from adults.7 7.See, e.g.,Roper v. Simmons, 543 U.S. 551, 572 (2005) (describing the “differences between juvenile and adult offenders” as “marked and well understood” and thus holding unconstitutional the imposition of the death penalty on juvenile offenders).Show More Juveniles lack maturity, have heightened vulnerability to external influence, and possess a unique capacity for rehabilitation.8 8.SeeinfraPart I.Show More Given this reality, the imposition of extreme sentences—including the death penalty, mandatory life without parole (“LWOP”), and discretionary LWOP for non-homicide offenses—on juveniles in criminal court is disproportionate and unconstitutional under the Eighth Amendment.9 9.The Supreme Court has held that sentencing a juvenile to death, Roper, 543 U.S. at 574–75, as well as imposing discretionary LWOP for non-homicide offenses, Graham v. Florida, 560 U.S. 48, 82 (2010), and mandatory LWOP for any offense, Miller v. Alabama, 567 U.S. 460, 479 (2012), violates the Eighth Amendment to the U.S. Constitution.Show More But these constitutional protections cease to exist the day one turns eighteen. Despite referring to Mr. Nelson’s case as “extremely tragic,” the Minnesota Supreme Court felt bound to follow U.S. Supreme Court precedent that “clearly limited [Eighth Amendment protection] to juvenile offenders under the age of 18 at the time of the offense.”10 10.Nelson, 947 N.W.2d at 40 (emphasis added).Show More Had Mr. Nelson been eight days younger, the mandatory LWOP sentence that he received would have been unconstitutional as applied to him.

Emerging neuroscientific research, however, strongly indicates that the hallmark characteristics of youth—immaturity, impressionability, and corrigibility—are present in individuals older than eighteen, too.11 11.See infra Subsection II.B.1.Show More Cognitive development continues well into a young person’s twenties, and society recognizes the relative immaturity of this demographic through prohibitions on activities such as drinking and firearm possession.12 12.SeeElizabeth S. Scott, Richard J. Bonnie & Laurence Steinberg, Young Adulthood as a Transitional Legal Category: Science, Social Change, and Justice Policy, 85 Fordham L. Rev. 641, 645 (2016); Karen U. Lindell & Katrina L. Goodjoint, Juv. L. Ctr., Rethinking Justice for Emerging Adults: Spotlight on the Great Lakes Region 11–12 (2020), https://jlc.org/sites/default/files/attachments/2020-09/JLC-Emerging-Adults-9-2.pdf [https://perma.cc/U8GG-PBR9].Show More As a consequence, the proportionality considerations relevant for those under eighteen are arguably as compelling for “emerging adults”—defined here as those ages eighteen, nineteen, and twenty—as they are for juveniles. Despite this reality, emerging adults have not been granted protection against the harshest of criminal sentences under the Federal Constitution, and claims of disproportionality under the Eighth Amendment have been universally quashed.13 13.See infra Part III.Show More Given the current composition of the Supreme Court, seeking federal constitutional protection against disproportionately harsh sentences for emerging adults seems futile.14 14.See infra Part III.Show More The more effective realm for such advocacy, this Note posits, is in the states.

This Note proposes that advocates redirect focus and challenge the extreme sentencing of emerging adults as disproportionate under state, instead of federal, constitutional law. All fifty states prohibit cruel and/or unusual punishment, or its equivalent, in their state constitutions.15 15.See infraSection IV.A.Show More Further, many have interpreted these clauses to be broader and more protective than the Federal Eighth Amendment.16 16.See infra Section IV.A.Show More Attention should therefore be directed toward challenging extreme sentences for emerging adults under these provisions.

Recent litigation in Washington and Illinois illustrates how this can be achieved. In 2021, the Washington Supreme Court held that imposing mandatory-LWOP sentences on those ages eighteen through twenty violates the state’s constitutional provision against cruel punishment.17 17.See infra Section IV.B.Show More Over the last few years, Illinois state courts have also struck down the harshest criminal sentences as applied to emerging adults, holding that they violate the state constitution’s proportionate penalties clause.18 18.See infra Section IV.C.Show More Challenging emerging-adult sentencing in these ways is a promising strategy for future advocacy efforts across the country.

The contributions of this Note are threefold. First, while theories about emerging adulthood have existed for two decades, they have only recently been argued in court.19 19.SeeJeffrey J. Arnett, Emerging Adulthood: A Theory of Development from the Late Teens Through the Twenties, 55 Am. Psych. 469, 469 (2000).Show More This Note comprehensively surveys recent cases from both state and federal courts and synthesizes the arguments that have—and have not—been successful, a notable contribution to the literature. Second, academics and scholars have advocated generally for the consideration of proportionality in sentencing20 20.See, e.g., Jim Staihar, Proportionality and Punishment, 100 Iowa L. Rev. 1209, 1222–23 (2015) (arguing that those who commit more serious crimes deserve more severe punishments).Show More and explored how state constitutional provisions could be utilized to further such aims.21 21.See, e.g., Gregory S. Schneider, Sentencing Proportionality in the States, 54 Ariz. L. Rev. 241, 273–74 (2012) (discussing how state judiciaries could engage in proportionality review under state constitutional law).Show More However, none have applied these principles to the extreme sentencing of emerging adults, and this Note will be the first to advocate for such a path forward nationwide. Finally, the power of state constitutional law is significantly underappreciated in academic literature,22 22.SeeGary S. Gildin & Jamison E. Colburn, Introduction: State Constitutionalism in the 21st Century, 115 Pa. St. L. Rev. 779, 781 (2011) (“State constitutional law is a vibrant, albeit still underappreciated, area of legal study.”); Richard S. Frase, Limiting Excessive Prison Sentences Under Federal and State Constitutions, 11 U. Pa. J. Const. L. 39, 64 (2008) (encouraging “litigators, courts, and scholars to be less ‘Fed-centric’”).Show More despite the fact that it has profound and direct impact on those prosecuted in state courts across the nation. This Note contributes to the academic conversation by explaining how state constitutional law can be used as a powerful tool to inspire positive, tangible change, helping advocates structure their thinking and supplying them with arguments for state court practice.

This argument proceeds in five Parts. Part I considers proportionality as a philosophical concept, documenting its use in federal constitutional law to date, and reviews the Supreme Court’s Eighth Amendment jurisprudence as it relates to juveniles. Part II explains why the Supreme Court has remained faithful to the age of eighteen as a cutoff for constitutional protection against extreme sentencing but challenges the justifications provided by the Court in light of modern developments in neuroscience and social science. Part III surveys the failed efforts to gain federal constitutional protection for emerging adults, and Part IV explains why the most effective route forward for emerging adult justice will instead be under state constitutional law, highlighting Washington and Illinois as case studies of success. Part V recommends that litigants seek facial, as opposed to as-applied, protection of emerging adults and addresses counterarguments to that proposal.

  1. Nelson v. State, 947 N.W.2d 31, 33 (Minn. 2020), cert. denied, 141 S. Ct. 2518 (2021). ↑
  2. Id. ↑
  3. Id. at 34. ↑
  4. Id. at 40. ↑
  5. Id. at 34, 40. ↑
  6. Id. at 41 (Chutich, J., dissenting). ↑
  7.  See, e.g., Roper v. Simmons, 543 U.S. 551, 572 (2005) (describing the “differences between juvenile and adult offenders” as “marked and well understood” and thus holding unconstitutional the imposition of the death penalty on juvenile offenders). ↑
  8. See infra Part I. ↑
  9. The Supreme Court has held that sentencing a juvenile to death, Roper, 543 U.S. at 574–75, as well as imposing discretionary LWOP for non-homicide offenses, Graham v. Florida, 560 U.S. 48, 82 (2010), and mandatory LWOP for any offense, Miller v. Alabama, 567 U.S. 460, 479 (2012), violates the Eighth Amendment to the U.S. Constitution. ↑
  10. Nelson, 947 N.W.2d at 40 (emphasis added). ↑
  11. See infra Subsection II.B.1. ↑
  12. See Elizabeth S. Scott, Richard J. Bonnie & Laurence Steinberg, Young Adulthood as a Transitional Legal Category: Science, Social Change, and Justice Policy, 85 Fordham L. Rev. 641, 645 (2016); Karen U. Lindell & Katrina L. Goodjoint, Juv. L. Ctr., Rethinking Justice for Emerging Adults: Spotlight on the Great Lakes Region
    11–12 (2020),

    https://jlc.org/sites/default/files/attachments/2020-09/JLC-Emerging-Adults-9-2.pdf [https://perma.cc/U8GG-PBR9]

    .

    ↑

  13. See infra Part III. ↑
  14. See infra Part III. ↑
  15. See infra Section IV.A. ↑
  16. See infra Section IV.A. ↑
  17. See infra Section IV.B. ↑
  18. See infra Section IV.C. ↑
  19. See Jeffrey J. Arnett, Emerging Adulthood: A Theory of Development from the Late Teens Through the Twenties, 55 Am. Psych. 469, 469 (2000). ↑
  20. See, e.g., Jim Staihar, Proportionality and Punishment, 100 Iowa L. Rev.
    1209, 1222–23 (2015) (

    arguing that those who commit more serious crimes deserve more severe punishments)

    .

    ↑

  21. See, e.g., Gregory S. Schneider, Sentencing Proportionality in the States, 54 Ariz. L. Rev. 241, 273
    –7

    4 (2012) (discussing how state judiciaries could engage in proportionality review under state constitutional law). ↑

  22. See Gary S. Gildin & Jamison E. Colburn, Introduction: State Constitutionalism in the 21st Century, 115 Pa. St. L. Rev. 779, 781 (2011) (“State constitutional law is a vibrant, albeit still underappreciated, area of legal study.”); Richard S. Frase, Limiting Excessive Prison Sentences Under Federal and State Constitutions, 11 U. Pa. J. Const. L.

    39

    , 64 (2008) (encouraging “litigators, courts, and scholars to be less ‘Fed-centric’”). ↑

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