Issues

Any time a correctional officer (CO) physically assaults someone in prison, their conduct demands an especially compelling justification and robust ex post scrutiny. Instead, governing Eighth Amendment doctrine almost entirely defers to COs’ own judgments as to the need for force. This highly deferential approach is especially ill advised given the institutional culture of the modern American prison, which systematically demonizes and dehumanizes people in custody and thus primes COs to use violence unnecessarily. Even a standard of “objective unreasonableness” would not suffice to prevent case outcomes from reflecting a callous indifference to the safety of people in prison. What is needed instead is a reasonableness standard explicitly framed in terms of the state’s obligations to the incarcerated.

This Article makes the case for such a morally robust reasonableness standard and develops an account of both the normative foundations for this approach and the principles that ought to guide, not only factfinders in individual cases, but all actors in a position to shape carceral policy. What drives the inquiry—and sets it apart from the Supreme Court’s own treatment of the constitutional claims of people in custody—is the attention paid to the concrete realities of the modern American prison. The current Supreme Court is unlikely to regard with sympathy the account offered here. But it remains open to the rest of us to insist that the Eighth Amendment’s prohibition on cruel and unusual punishment has meaningful moral content beyond the narrow, often pinched reading that currently shapes the legal doctrine.

This Article is intended as part of this larger project of self-conscious moral reclamation. Its animating goals are: to expose the deep flaws in the governing law, to excavate the normative content of Eighth Amendment limits on the state’s power to inflict criminal punishment, and in the process to provide a reinvigorated moral vocabulary for understanding and challenging the use of violence by state officials against the fellow human beings they are sworn to protect. In these ways, this enterprise has considerable overlap with the growing national effort to set moral limits on police violence.

This Article defends a structural theory of the brutality of the carceral state. We argue that American penal systems are destined to be inhumane, barring sweeping changes to the social and economic order of the United States; and that prison and police abolition are neither sufficient nor necessary to bring these kinds of changes about. This theory stands on two premises. First, we defend The Principle of Less Eligibility, which holds that it is politically infeasible for capitalist democracies to permit the incentives to defy the law to exceed those to obey it. As we show, the Principle of Less Eligibility implies that the brutality of the American carceral state is a symptom of the clustered and concentrated disadvantage that define the American ghetto. Second, we show that social policy is bedeviled by what we call The Efficiency-Feasibility Paradox. Hyper-targeted social programs are a more efficient way to improve the lives of the least well-off than universal social policy. But it is politically infeasible for governments to fund hyper-targeted programs at the scale necessary to eliminate the American ghetto. Abolishing the American ghetto will require appealing to the interests of a broad majority.

In light of both the tragic death of Tyre Nichols in Memphis at the hands of black police officers and the mixed results of studies of Black same-race policing, this Article proposes a conceptual framework by which to better understand the utility of police diversity. The framework maps the relational possibilities among three factors: (i) the Black officer’s approach to same-race policing; (ii) the Black officer’s performance in the context of same-race policing; and (iii) the policing priorities of the Black communities the Black officer is taken to represent. Responsive to the conceptual framework for police diversity theory, the Article proposes that minority representation in the police department be valued largely along two fronts: (i) institutional representation in which the minority officer’s job performance is responsive to the preferences of the racial peer group, and (ii) racial equity in criminal procedures. But it argues that racial equity in criminal procedure should be expressly prioritized within police diversity theory given the prospect of tension between these two values. A normative theory of police diversity that prioritizes racially equitable criminal procedure above the preferences of minority-majority polities and, likewise, the physical safety of racially marginalized communities, affirms Fourth Amendment and Equal Protection principles. Moreover, it acknowledges the possibility that efforts at racial representation in the police department, if applied uncritically, can serve to perpetuate the prejudiced treatment of young minority men.

Common accounts of police and prosecutorial nonenforcement discretion tend to valorize individual declination choices as demonstrations of mercy and resource constraint. Simultaneously, these accounts critique blanket nonenforcement policies as being outside the bounds of executive authority. Both accounts fail to consider the origins and implications of nonenforcement decisions made by police officers and prosecutors in individual cases that, when taken together, amount to significant underenforcement of an otherwise valid law. This Article fills the gap between these differing perspectives by empirically examining the hidden and habitual underenforcement of technically valid drug-free-zone (DFZ) laws in one Southern county. Data matching the locations of felony drug arrests with residential, school, and commercial drug-free zones shows chronic underenforcement of DFZ laws during the first decade of the twenty-first century. Interviews with police and prosecutors in this county expose their reasons for nonenforcement. These reasons predominately include ignorance, benign neglect, institutional mistrust of other system actors’ motives and competence, and pessimism about the ability of the laws to effect deterrence. Finally, interviews with active drug offenders within the county reveal their limited understanding of the nature of DFZ laws, the terms of liability, and the consequences of being charged with a violation. While chronic underenforcement of DFZ laws is surely preferable to widespread application of an overly punitive drug policy, these laws can stigmatize the underclass even if not meaningfully enforced. Moreover, if enforcement were to be reinvigorated, the zone locations would likely create considerable disparities in criminal legal processing. Only structural legal change can mitigate these concerns.