Criminal Law Archives – Southern California Law Review

Criminalization: An Exceptionally American Response to Homelessness

July 2025July 2025Jacob Schwessinger*

This Note analyzes the recent trend of criminalizing homelessness in the United States. The first half discusses homelessness through the lens of American exceptionalism as a comparative tool. Comparing America to its international peers helps us better understand why America’s response to homelessness has become increasingly punitive. In doing so, the Note makes a novel contribution to American exceptionalism literature in applying the concept to homelessness. Specifically, it shows that while American homelessness rates are not unusually high, American shelter rates are unusually low relative to other western democracies. The Note shows this by combining national homelessness reports into a single dataset and document. The second half of the Note discusses current constitutional doctrine relating to homelessness, focusing on City of Grants Pass v. Johnson. This section uses the first half’s analysis to show why, contrary to the Supreme Court’s decision, the Ninth Circuit’s ruling was, at its core, correct on a legal and sociological level in applying status crimes doctrine to homelessness. In doing so, the Note builds on others’ defenses of the Ninth Circuit’s ruling by both adding to those legal arguments and bolstering them with a sociological grounding, offering a new way of thinking about status crimes in general and homelessness in particular. The Note mounts a defense not only of now-outdated homelessness constitutional doctrine, but also of a shift in American political culture that recognizes homelessness as a product of social circumstances rather than individual failure. Such a change is a necessary prerequisite for curbing, on legal and political levels, America’s intensifying trend of criminalizing homelessness, the first step in bringing America in line with its peers and actually solving homelessness.

Introduction

In 2010, Debra Blake, a resident of Grants Pass, Oregon, lost her job.¹ Already in a precarious financial position, she could not afford to remain in her home and was forced out.² For the next ten years, she had no choice but to spend her nights in a variety of locations, either in temporary shelters or on the streets of Grants Pass.³ This already devastating and tumultuous experience was made worse beginning in 2013, when Grants Pass began issuing civil citations to people sleeping on public property.⁴ Between 2013 and 2019, Blake accumulated over $5,000 in fines.⁵ If she did not pay those fines and was caught by the police on city property, she would be subject to criminal prosecution for trespass.⁶ With nowhere else to go, Blake was on the brink of just such a prosecution. Before any prosecution could take place, however, Debra Blake died. Little is publicly known about her death. She was sixty-two.⁷

Blake’s story is tragic, but it is far from unique in the United States. As of 2024,⁸ over 770,000 people were living without a home or apartment in America.⁹ In response, cities across the country, including Grants Pass, have passed laws and regulations increasingly hostile to their homeless residents.¹⁰ Before passing away, Blake filed a class action lawsuit with other homeless residents against Grants Pass.¹¹ She alleged that the practice of fining people for sleeping on public property violated the Eighth Amendment’s ban on status crimes—crimes which criminalize people solely for their states of being rather than their actions.¹² Although she did not live to see the result, the Ninth Circuit agreed with her claim that the city’s practice was unconstitutional.¹³ Grants Pass, however, appealed the case to the Supreme Court, which in 2024 ruled in favor of the city.¹⁴ The ruling solidified and gave constitutional cover to the nationwide trend of municipalities criminalizing homelessness.

How did we get here? What has led to so many towns and cities in the United States to criminalize homelessness? Is America unique in this regard? How should the Court have ruled? This Note explores these questions through the concept of American exceptionalism and American history to better understand and justify legal doctrine and arguments surrounding the criminalization of homelessness.

The first half of this Note, Part I, explains American homelessness and compares it to America’s international peers. Section I.A outlines its methodology showing that an approach to legal scholarship that puts black-letter law in social context is imperative for understanding law. Section I.B introduces newly synthesized data on homelessness rates and shelter rates among western democracies where data is available, showing that while America’s homelessness rate is not uniquely high, its rate of unsheltered homeless people is. The subsequent parts of this Section explain these findings. Section I.C examines government spending and America’s comparatively weak social safety net writ large. Section I.D outlines American public opinion and ideology, unveiling a culture of individualism over collectivism using a variety of political documents and public opinion polling. Section I.E discusses the role of race and homelessness, showing how America’s history of racial oppression enables and exacerbates the problem of homelessness. Section I.F explains America’s turn towards criminalization as a “solution” to homelessness, embedding it in larger trends of American history and ideology.

The second half of this Note, Part II, outlines and defends current Ninth Circuit legal doctrine on homelessness. Section II.A gives an outline of current law, showing how the Ninth Circuit used the Eighth Amendment’s status crime doctrine to bar cities from utilizing what is effectively a loophole in constitutional law. Section II.B examines the arguments made in City of Grants Pass v. Johnson. Section II.C analyzes the Supreme Court’s eventual decision in the case. Section II.D defends the Ninths Circuit’s ruling against the Court’s decision. It takes the stance that the Ninth Circuit’s understanding and application of status crime doctrine fits well within the more collectivist understanding of reality as comprehended by those in other western democracies. Finally, Section II.E calls for a change in popular American ideology that is likely to motivate the Court’s decision and current municipal law. Only a shift away from an individualist and towards a collectivist understanding of society can fuel the political will to change homelessness law.

Homelessness Compared and Explained

This Part uses the lens of American exceptionalism to elucidate homelessness data and policy in the United States, comparing it to other western democracies in order to better understand America’s turn to criminalization as a “solution” to homelessness.

A.A Preliminary Note on Method

This Note takes a relatively unique approach to the study of homelessness law and doctrine. That is, it does not take law as an isolated field that can (or should) be studied on its own, or with a mere dash of policy analysis thrown in at the end. Rather, it sees law as embedded in and determined by social context. Such a strategy, according to some, has been described as “the single most revolutionary development in modern legal thought.”¹⁵ This is not to say that all legal research must consider law this way. Rather, it is to say that doing so is useful and worthwhile, one of many forms that legal analysis and thought can take. Thus, while not all analysis in this Note is directly legal, the consequences of the ideology and governmental policies outlined in this Note are directly legal, manifesting in municipal decisions to criminalize homelessness and court decisions responding thereto. In addition to the strictly legal arguments made below, another contribution of this Note is an analysis of what motivates recent American legal trends. Such an analysis is imperative not only for understanding and evaluating current trends, but also for analyzing the root causes and offering solutions in domains that extend outside of law yet influence law, such as notions about what has to change in popular American political ideology. When legal arguments go hand-in-hand with political arguments, since law is always bound up with politics,¹⁶ they become all the more potent. As such, this Note takes an approach that is interdisciplinary and necessarily so.

The first half of this Note uses the lens of American exceptionalism to help explain homelessness. There are many approaches to the understanding and use of the concept “American exceptionalism.”¹⁷ This Note seeks to add to the body of literature exploring American exceptionalism by examining a previously understudied topic: homelessness and homelessness policy. The Note deploys a method close to that developed by Charles Lockhart in The Roots of American Exceptionalism. That is, it utilizes a schema that draws on historical, institutional, and cultural variables to explain both the nuances of America’s homelessness problem as well as America’s political reaction to homelessness.¹⁸ In doing so, this Note shows certain aspects in which America is exceptional with regard to its stance towards homelessness, which is reflected both in its policy and ideological belief system.

Moreover, placing America in a comparative light helps explain why America’s response has been increasingly punitive. By analyzing recent American history, one can see how criminalizing homelessness fits within larger cultural and structural trends. A comparative understanding of American societal disposition towards economic opportunity in general and homelessness in particular is imperative for understanding why America is making the choice to criminalize homeless people. These trends explain why the Supreme Court chose to reverse the Ninth Circuit’s ruling in Johnson.¹⁹ But first, these underlying trends must be identified, and they are examined below.

B. Homelessness Compared

This Section conducts a brief, international comparison of homelessness rates to see if and how America is unique with regard to its treatment of homeless people. Delving into a data collection that is the first of its kind, this Section shows that while the rate of homelessness in America is not exceptional, the percentage of homeless Americans who are unsheltered is very high relative to other western democracies.

Numerous reasons might lead one to suspect that America has an exceptionally high homelessness rate compared to other western democracies.²⁰ For instance, the United States, even after taxes and monetary transfers, has a very high level of income inequality relative to other western democracies.²¹ Its “Gini Coefficient,” which measures income inequality, ranks higher than Australia, New Zealand, Canada, and most European Union countries.²² Moreover, since the 1980s, the share of income going to the top 10% of earners has consistently increased on an annual basis.²³ While the United States used to have a more egalitarian distribution of income in the early 20th century, this is no longer the case today.²⁴

However, a closer examination of the data²⁵ on homelessness rates from other western democracies reveals that, in this realm, America is unexceptional:

Figure 1. Percentage of Population Homeless by Country

Note: Data assembled by the author. See Appendix infra for methods.

Figure 1 shows the rate of people experiencing homelessness by the percentage of the population of the country in which they reside. Essentially, it is the homelessness rate of each country. As the chart shows, the homelessness rate in the United States is not particularly high compared to other western democracies. Among seventeen other countries where data is available, the United States ranks as having the seventh highest homelessness rate. Its rate almost exactly matches the overall homelessness rate for the European Union.²⁶

But homelessness rates alone do not tell the whole story. Delving deeper into the data, when one examines the percentage of homeless people spending nights unsheltered, one sees a very different picture:

Figure 2. Percentage of Homeless Population Unsheltered by Country

Note: Data assembled by the author. See Appendix infra for methods.

Not all countries included in Figure 1 have data available for the rate of unsheltered homeless people in the studies used. Still, thirteen countries do. Figure 2 shows that the percentage of unsheltered homeless people is far higher in the United States than it is in most other western democracies. Its rate of unsheltered homeless people is 33% higher than the next closest country, New Zealand. It is approximately double the EU average. Of the countries examined, only Czechia has a higher rate. Thus, while the United States does not differ in kind from other western democracies in this respect, it does significantly differ in degree.

As such, although there is not a particularly large number of people experiencing homelessness in the United States relative to other western democracies, the percentage of these people that are unsheltered in the United States is relatively high. This difference is important for both analyzing the problem itself and for understanding how America has reacted to homelessness. If America had a unique level of homelessness, one would seek to explain this phenomenon by examining the root causes of homelessness. However, given that America has an unusually high number of people living outdoors or on the streets, this means that shelter availability is comparatively low in the United States relative to other western democracies.

This specific intervention is important. Homelessness has been hitherto neglected in the debate around American exceptionalism. This is likely because, at first blush as shown above, America does not have an exceptionally high rate of homelessness. Still, there is a popular perception that America does have a much higher homelessness rate than other western democracies.²⁷ The major difference between America and its peers is the rate of shelter availability. Because people (especially in the United States) do not see the level of homelessness in Europe, they think it does not exist.

Therefore, to understand why America is exceptional in the realm of homelessness, the subsequent four Sections of this Note seek to understand America’s response to homelessness rather than homelessness’s causes.

C. The Social Safety Net

The first factor that helps explain why America lacks the homeless shelters that other western democracies have is the relatively weak social safety net its state, local, and federal governments maintain. Seen in this light, America’s lack of homeless shelters is not an isolated fact that sets it apart from other western democracies. Rather, it is part of a larger trend concerning America’s relatively weak social safety net.

In general, American total government expenditure is less, as a proportion of its total GDP, than most other western democracies. In 2019, for example, the U.S. government’s expenditure as a percentage of GDP was 36%, while France’s was 55%, Sweden’s was 48%, the United Kingdom’s was 38%, and New Zealand’s was 39%.²⁸ Although these are only a few examples, there is a general historical trend of the United States’ government being outspent by other western democracies.²⁹ This is in spite of the fact that America wildly outspends those same countries on maintaining its military, accounting for 39% of the world’s military expenditure.³⁰

This difference in government spending is reflected in the provision of a variety of social services. For example, many other western democracies own and operate their railroad and airline systems.³¹ In America, however, the federal government has not made a similar commitment. The same can be said for the operation of utilities. While other western democracies often directly operate means of communication (like telephone lines) or energy distribution (like gas and electricity), the United States has largely left the operation of these basic necessities to the private sector.³² There is thus a more minimal role of government in the coordination of economic activity in America compared to other western democracies.

America’s social safety net is similarly weak. In a wide variety of areas, from mandated maternity leave to child day care to low-income housing, the U.S. government³³ provides comparatively less to its residents than most other western democracies.³⁴ A paradigmatic example of this trend is healthcare. The United States is the only western democracy to not ensure medical insurance coverage for virtually all of its residents.³⁵ This is partially due to the fact that the United States achieves its 90% health care coverage through a patchwork system of private insurers and government programs like Medicare and Medicaid.³⁶ Moreover, the story goes further than simply who is providing the care. The United States has largely left other key elements of the healthcare system to the private sector, such as price-setting. This has also contributed to the United States’ relatively high cost of healthcare.³⁷

In sum, America has a relatively weak social safety net compared to other western democracies. This is intertwined with the fact that the U.S. Constitution does not announce rights in a positive sense. Rather, it accords negative rights. The Constitution’s Bill of Rights consists of private activities that the government will be largely restrained from infringing upon, like the right to freedom of speech, the right to bear arms, and the right against cruel and unusual punishment.³⁸ Commonplace in other western democracies, however, are positive rights. These are rights that promise positive provisions that the government accords its citizens, such as food, shelter, and healthcare.³⁹ While not all of these guarantees are necessarily lived up to by those governments, particularly those of poorer nations, the presence of de jure positive rights nonetheless signals a difference between America and its peers.

Thus, on a structural level, the United States’ relative lack of shelter for people experiencing homelessness fits well in this larger picture. America’s government spending in general and social safety net in particular are far weaker than other western democracies. Even though America’s economic and housing systems have not produced more homeless people, a relative lack of spending in social programs can begin to shed light on why American governments—federal, state, and local—have not been willing to build more shelters for those experiencing homelessness.

But more explanation is needed. America is, after all, a democracy.⁴⁰ Why have Americans refrained from voting to expand their welfare state? Why are they not voting to expand government funding to include the construction of homeless shelters? What explains the gap between America and its peers?

D. Public Opinion and Ideology

To explain America’s relatively weak social safety net in general and its refusal to adequately shelter homeless people in particular, a deeper dive into American ideology and voter belief is necessary.⁴¹ This Section does exactly that, using a variety of public opinion polling as well as the documents of elected officials to show how ideological beliefs around individualism inform American social policy and homelessness policy.

To engage popular ideology, public opinion polling is a useful place to start. Karabel and Laurison summarized a number of useful studies comparing American public opinion to public opinion in a variety of other countries.⁴² Their analysis was enlightening. America was an outlier relative to other western democracies in a variety of ways. Americans were more likely to value freedom over equality than those in other western democracies surveyed.⁴³ More specifically, Americans were more likely to believe that the freedom to pursue life’s goals outweighed the importance of the state guaranteeing that no one is in need.⁴⁴ While the percentage of people favoring this statement was roughly 25% in France and 31% in Germany, it was over 60% in the United States.⁴⁵ Additionally, almost 50% of Americans in one survey thought that “it should not be the responsibility of government to reduce income differences.”⁴⁶ Amongst the other countries included in the survey, only New Zealand scored higher, and did so only by a small margin. The analogous proportion in most other western democracies was far lower. In another poll, the percentage of Americans surveyed who thought that private ownership of business is preferable to government ownership of business was over 60%, higher than any other western democracy surveyed.⁴⁷ The analogous figures for Germany, Australia, and Canada were roughly 38%, 39%, and 52%. Finally, most on the nose, Americans agreed with the statement “it should not be the responsibility of government to provide for the unemployed” at a rate of roughly 49%.⁴⁸ This rate was higher than every other country surveyed, except for New Zealand.

From these surveys, we can conclude that Americans not only value personal freedom more than economic equality at a higher rate than other western democracies, but also that Americans are less willing to endorse government action to assist people in dire economic straits.

Still, the differences run deeper than mere social values and government actions. Americans surveyed also differed in their explanations for the root causes of social realities themselves. For instance, one question asked whether “people are poor because of laziness and lack of willpower” or “poor because of an unfair society.” In America, 62% agreed with the former, the highest proportion of any western democracy surveyed.⁴⁹ While 50% of both New Zealanders and Australians agreed with that statement, the analogous rate for Finland and Germany was 23% and 17%, respectively.⁵⁰ Relatedly, Americans were more likely to believe that their society is meritocratic. For instance, 63% of Americans believed that success is determined by hard work rather than luck and connections, scoring higher than all other western democracies except for Finland.⁵¹ Finally, the United States had the highest rate of disagreement with the statement “success in life is pretty much determined by forces outside our control,” relative to other western democracies.⁵² Almost 70% of Americans disagreed, while most other countries surveyed had disagreement rates of 50% or less.⁵³

Thus, majorities of Americans tend to see poverty not as a social failure, but as a personal one. Moreover, Americans tend to hold these views at much higher rates than most if not all other western democracies.

These attitudes are not only passively held by Americans, but also actively practiced by their elected officials. One can see these ideas made manifest in Paul Ryan’s A Roadmap for America’s Future.⁵⁴ In the proposal, the former Speaker of the House of Representatives meticulously lays out not only policy proposals, but also philosophical and historical rationales for those proposals. These policies largely consist of scaling back levels of spending on the federal government’s social safety net. To justify these rollbacks, he appeals to many of the values outlined above, such as personal freedom and individual responsibility. He justifies his favor of markets and individual freedom by stating that in market-based economies, like America’s, “no individual or family is bound to their circumstances: they can advance, they can improve their conditions, through their own efforts.”⁵⁵

Ryan sees this “freedom” as being threatened by government intrusion into the economy through the expansion of the social safety net. Writing of efforts to expand welfare programs, he writes that “government increasingly dictates how Americans live their lives . . . [b]ut dependency drains individual character, which in turn weakens American society.”⁵⁶ Thus, although Ryan is a partisan actor arguing for particular policy solutions, here he is appealing to broader sentiments that resonate with large majorities of the American public.⁵⁷ The economic failures of individuals are not seen as rooted in structural economic forces. Rather, they are seen as failures of individuals not “bound to their circumstances.’’⁵⁸ Moreover, government action aimed at solving these problems not only fails but exacerbates them. This is in marked contrast to other western democracies, in which even conservative party members do not seek to dismantle welfare state policies.⁵⁹

Government entities, however, are not the only entities that can be used to combat poverty in general and homelessness in particular. Private charity and faith-based organizations can also play a role. The United States has the highest rate of religious belief among western democracies.⁶⁰ Although the religious belief of its residents has been moderately decreasing in recent decades, it remains comparatively strong.⁶¹ Churches are an increasingly used source of housing for homeless shelters.⁶² Some politicians have also voiced support for faith-based solutions to homelessness.⁶³ Given these facts, one might suspect that while Americans may be averse to government-run shelters, they may be more supportive of private, faith-based shelters. The data, however, simply does not support such a view. Faith-based shelters make up only 4% of shelter beds available to homeless people.⁶⁴ Thus, the American ideological emphasis on self-responsibility for one’s economic conditions outweighs both private, charitable responses as well as publicly funded ones.

Of course, many Americans see economically deprived individuals as the products of circumstances and many Europeans view poor individuals as personally responsible for their economic circumstances. America has no monopoly on these views. However, these ideas are substantially more widespread in the United States than in other western democracies. They are also reflected in U.S. government policy. When economically destitute individuals, like Debra Blake, are seen as solely, personally responsible for their situation, it is less likely that people holding those views will favor government policies to help people falling on hard times. This means that government-run shelters are less likely to receive political support. Other western democracies, meanwhile, are more likely to see homelessness as a product of social circumstances and societal failure, and therefore provide shelter.

Seen through this lens, America’s disinclination to build shelters for individuals facing homelessness does not arise through some unique hatred that America has for homeless people, but rather as part of a larger narrative about the way Americans and policy-makers think about poverty and its root causes.

E. Race and Homelessness

Inextricable from an explanation of homelessness in the United States is an account of who experiences homelessness. This Section shows not only the racial disparities of those experiencing homelessness, but also uses those demographics to help explain American homelessness policy and posture.

Obviously, the people who experience homelessness are those in poverty. Along these lines, Black and Latino people are already overrepresented, with roughly 20.1% of Black folks living in poverty in the United States today, despite being only 13.5% of the population.⁶⁵ The respective numbers for Latino folks are 28.4% and 19.3%.⁶⁶ But the numbers are even more exacerbated when it comes to homelessness. While 24.1% of homeless people are Latino, a staggering 37.3% of homeless people identify as Black.⁶⁷ Thus, the intersection of homelessness and race, at least for Black folks, is not merely equivalent to that of poverty and race. Rather, homeless people are disproportionately Black at a rate even more extreme than that of poverty.

We know that the general causation of these gaps in economic wealth, income, and opportunity are due to longstanding racial oppression.⁶⁸ But what effect does the fact that the majority of people sleeping on America’s streets are nonwhite have on our homelessness policy? Although a concrete answer is multifaceted and can probably only be arrived at indirectly, critical race theory can help provide answers. Doing so will help explain why America’s majority-minority homeless population does not receive the same amount of government and public care and attention as other countries.⁶⁹

One book within the discipline of critical race theory that can help explain why the racial makeup of the homeless population likely has an impact on the way homeless people are treated in the United States is Jody Armour’s book, provocatively titled N*gga Theory.⁷⁰ Although the book largely focuses on criminal law, it highlights important developments in both the history of American racism and recent research into white Americans’ relationship with Black Americans in the realm of cognitive science.

One of Armour’s central claims is that “the dominant brand of anti-black discrimination in post-civil rights era America is not active racial animus but unconscious racial bias.”⁷¹ This view leads Armour to locate the disparities in treatment across races not as the result of conscious racial hatred but rather that of unconscious or subconscious behavior of white Americans.

One of the ways this unconscious bias operates is through disparities in empathy for others as manifested in specific “neuroanatomical circuits underlying . . . cognitive processes.”⁷² Specifically, recent studies show that particular parts of the brain, such as the bilateral anterior insula, the anterior cingulate cortex, and the medial prefrontal cortex are active when individuals are feeling empathy, in both the emotional and cognitive realm.⁷³ Functional magnetic resonance imaging (“fMRI”) technology has allowed neuroscientists to measure when humans are and are not feeling empathy towards others. Unsurprisingly, many Americans tested in these studies show decreased empathetic neural activity when viewing people of different racial groups.⁷⁴ This was true, for instance, when twenty-eight participants were shown scenes depicting individuals of varying racial groups in painful or neutral situations.⁷⁵ Upon viewing these images, people who shared a social-racial identity with the person in need exhibited a higher level of empathetic neural activity than they did with those who did not share their ethnic group.⁷⁶ This was despite the fact that many people would not likely claim they have explicit racial bias, since the social consequences of having such a bias are negative.⁷⁷ Other studies involving mirror-neuron systems, which are responsible for unconsciously mirroring other individuals, show a similar level of racial bias.⁷⁸ Thus, there are empathy gaps across racial lines.

Here, it is important to note that these are not inevitable biological responses to inherent human differences. On the contrary, race is not a biological category, but a social one.⁷⁹ Thus, the status of who is “in” and “out” of one’s social group are constantly in flux.⁸⁰ More importantly, the categories are historically contingent, the outcome of social oppression and not biology.⁸¹ It is likely not the supposed differences in look or skin color that is the cause of these empathy-deficits, but rather socially-reinforced differentiation and hierarchies. Thus, America, as a multiracial liberal democracy, does not inherently have these issues of empathy gaps, but rather has them because of its specifically racist past and present, one that had a beginning and therefore (hopefully) has an end.⁸²

Armour eventually goes on to discuss how these empathy barriers contribute to disparities in judge and jury convictions of Black Americans. How do they apply to homelessness? The answer is probably intuitive: in a majority white country⁸³ with politics dominated by white individuals and interests,⁸⁴ a problem that largely affects nonwhite people is likely to be neglected. The fact that most homeless people are mostly not white means that our political system is less likely to respond urgently to the problem. It is a classic case of structural racism. This was true, for instance, of the natural disaster of Hurricane Katrina in 2005, wherein the government responded slower than it could have, an action which many people attributed to the fact that the people most in need were disproportionately Black.⁸⁵ Moreover, in the man-made disaster of the Flint, Michigan water crisis of 2014, the largely Black population of Flint likely suffered more intensely and received a less urgent response from the state due to the demographic of who was suffering.⁸⁶ In each of these catastrophes, it is likely that the empathy deficits that white officials and members of the public exhibited towards the Black victims contributed to the lackadaisical response by government actors. The same can likely be said for homelessness. If homeless people were not members of an oppressed group, it is likely that there would be a more urgent government response to their plight.

Unconscious bias may explain the lack of a response, but why the personal blame? How does the attribution of individual responsibility to those in poverty (a view that is popular in America and described above) intersect with the government’s general unwillingness to provide shelter to homeless people given the racial lens with which we are operating? Armour’s book has even more answers here. In it, he uses the work of Fritz Heider to show how people ascribe moral blame to individuals.⁸⁷ Specifically, when judging others, people who attribute one’s actions to their social circumstances are less likely to morally blame them for those actions than when they see those actions as stemming from an inner psychology.⁸⁸ When people focus on the situations in which others find themselves, they are less likely to morally blame those others for their bad acts. Applying this to the criminal sphere, a study done by Birt Duncan found that “violent acts tended to be attributed to internal causes when the harm-doer was black, but to situational causes when the harm-doer was white.”⁸⁹ Other studies have verified these findings.⁹⁰

If this phenomenon is occurring in the lab and in the courtroom, it is likely also occurring on the streets. In a country where people are already largely blamed for their actions, and the role of social circumstance is neglected, it makes sense that a racially-charged issue like homelessness would exacerbate this phenomenon. Racial minorities are likely being blamed for being homeless even more intensely than their white peers. Indeed, America’s response to homelessness exhibits precisely the kind of response we would expect if this were the case. Racism, individual and structural, is therefore not only responsible for Black people disproportionately becoming homeless, but also for their remaining homeless. The unwillingness to build homeless shelters and the tendency to blame people for the economic circumstances, which is exacerbated by the history of racial oppression and division in the United States, makes America’s response to homelessness much more understandable (though not justifiable). Thus, the empathy deficit and tendency to blame racial minorities—particularly Black folks—for their actions and economic status intensifies America’s lackluster response to homelessness.⁹¹

F. America’s Turn to Criminalization

The above sections explain why a substantial number of Americans likely, to a sizeable extent, blame homeless people for being homeless, but they do not explain why there has been an increasing trend towards criminalization of homelessness.⁹² This Section addresses this issue. Making sense of this trend requires a broader examination of criminal law and policy. Through this analysis, one can see that criminalizing homelessness and imprisoning people like Debra Blake makes sense according to the ideology of self-responsibility and America’s comparatively harsh criminal system.⁹³

The United States has the highest rate of incarceration of any western democracy, and nearly the highest incarceration rate in the world.⁹⁴ America is remarkably punitive in a number of ways. Not only is it the only western democracy to retain capital punishment, but its sentencing structure is also one of the harshest in the world.⁹⁵ This trend is relatively new. Beginning in the early 1970s, an explosion in the prison population—known popularly as “mass incarceration”—made the United States the world leader in imprisonment rates.⁹⁶ America’s recently learned penal instinct for dealing with social problems is more intense than in any other western democracy.

Coupled with this well-known trend is a lesser known but related trend: a proliferation in economic sanctions incorporated into the criminal system. There has been a surge in civil fines, court fines, and other financial penalties levied against individuals since the early 1980s.⁹⁷ Although debtors’ prisons are officially banned in every state, people who are unable to pay a variety of civil or court-imposed fines are being increasingly imprisoned as a result.⁹⁸

While laws directly, explicitly criminalizing homelessness are practically nonexistent, laws that impose fines on homeless people are increasingly being passed around the country.⁹⁹ This is the kind of criminal penalty that Debra Blake was facing. Although the statute she violated by sleeping on public land only resulted in a fine, a repeated violation of the statute, combined with her inability to pay, would have resulted in a jail sentence.¹⁰⁰ She would not have been the only homeless person with such a fate.¹⁰¹ While other countries have laws that criminalize some behavior associated with sleeping on public property,¹⁰² the wider availability of shelters makes those laws far less relevant to homeless people abroad.

The American instinct to not only blame people facing homelessness for their camping in public but also to actively oppose them through criminalization is also part of a larger trend. Violent attacks on homeless people have been on the rise in recent years.¹⁰³ When homelessness is seen by members of the public as a problem of individual responsibility, it makes sense that when one sees individuals taking up space on public streets or parks, they are angry at the individual rather than the socio-economic system that created the situation. The instinct to criminalize such behavior therefore follows from an individualization of the problem combined with an existing propensity for criminalization. If homeless people are solely responsible for their situation, and their situation interferes with a pedestrian’s ability to move about public grounds unimpeded, the justification for imprisonment on the grounds of public interference also begins to make sense. Imprisonment will solve the immediate problem of getting the person off the street and is justified due to that person’s inability to maintain the economic resources necessary to maintain shelter for themselves.

Of course, such a logic is withdrawn from the social realities that actually create homelessness.¹⁰⁴ While experts disagree on the specific means of reducing homelessness, there is a consensus that to do so, one must dramatically increase the supply of affordable housing and connect homeless people with social services and employment opportunities.¹⁰⁵ Unfortunately, for homeless people and housed people, Americans have a long history of not only ignoring expert opinion, but actively loathing expert opinion and intellectualism writ large. As Richard Hofstadter wrote in Anti-Intellectualism in American Life over 50 years ago, “intellectuals . . . are [seen as] pretentious, conceited, effeminate, and snobbish . . . .”¹⁰⁶ America has no monopoly on anti-intellectualism. Nor has anti-intellectualism as a cultural force been constant in its history. Rather, it is one that fluctuates in intensity.¹⁰⁷ Our current time, however, sees a more intense moment of this fluctuation, rendering a penal response to homelessness that deviates from expert opinion even more likely.¹⁰⁸

This hostility towards both homeless people and experts on homelessness can be seen in America’s current populist wave. While a deep analysis on the relationship between homelessness and populism is worthwhile, it extends beyond the scope of this Note. Still, a brief discussion can be given. Jan-Werner Müller defines populism as “a particular moralistic imagination of politics,” one that establishes a “morally pure” people against elites and outsiders.¹⁰⁹ While modern populists have long derided experts as part of the elite outsiders,¹¹⁰ homeless people themselves are increasingly considered outsiders (and paradoxically paired with elites), deviants who are apart from and opposed to “normal” people. For instance, former Fox News host Tucker Carlson recently argued that homelessness is the result of liberal leaders becoming “more lenient on petty crime” and that “because of their liberal attitudes and the mild climate, [Seattle] is a magnet for vagrants.”¹¹¹ Overall, political populism and a history of punitive responses to social problems are worryingly combining to produce laws that criminalize homelessness in spite of expert opinion.

In sum, America’s penal response to homelessness stems from both its conception of homelessness as a problem of individual failings combined with its comparatively harsh penal system. As a result, homelessness has become a hot-button political issue, one for which populists have whipped up anti-elite sentiment and anger about homelessness to create false narratives about homelessness and advocate punitive solutions thereto.

Homelessness and the Law

Now that an overview of homelessness, in both a comparative and historic-domestic light, has been given, we can return to an analysis of Debra Blake’s case and use it as a microcosm to understand and evaluate homelessness law in general. This Part, divided into several sections, outlines law concerning homelessness, both before and after the Court’s ruling in Grants Pass. Next, this Part argues that America needs a fundamental reckoning on not only the legal level, but also the ideological and social level. Only once our attitudes towards homeless people change from an individualist understanding to a collectivist understanding can our laws change to reflect that understanding. Absent such a deep reckoning, political and legal responses reflecting such a change are virtually impossible.

A. Law Prior to Grants Pass

Although Debra Blake passed away, the case she and her fellow residents filed, City of Grants Pass v. Johnson, did not. This Section outlines the case law surrounding Blake’s claim.

In 1962, the Supreme Court decided Robinson v. California. In Robinson, the Court struck down as unconstitutional part of a California statute that made it illegal “to be addicted to the use of narcotics.”¹¹² The Court reasoned that while it was within California’s power to regulate behavior surrounding and including the use of drugs, criminalizing someone for their status of being addicted to illegal drugs was fundamentally different. In doing so, California was enforcing a “statute which makes the ‘status’ of narcotic addiction a criminal offense.”¹¹³ Rather than criminalizing an action, the status of being addicted to an illegal narcotic was criminalized. The Court likened addiction to a chronic disease, one over which the defendant had little to no control.¹¹⁴ The Court reasoned that “in the light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.”¹¹⁵ This ruling established what became popularly known as the Eighth Amendment’s ban on “status crimes.”

Six years after Robinson, however, this doctrine was complicated by a case titled Powell v. Texas.¹¹⁶ The case concerned whether or not the state of Texas could criminalize being found drunk “in any public place, or at any private house except his own.”¹¹⁷ The petitioners argued that the statute violated the Eighth Amendment’s ban on status crimes since an alcoholic would have to drink, and would therefore inevitably violate the statute. The Powell Court distinguished the Texas statute from California’s statute in Robinson, however, in a number of ways. While certain parts of the decision argued that being drunk was an act rather than a status,¹¹⁸ other parts highlighted the fact that alcoholic individuals could choose to be drunk in their homes and therefore avoid violating the statute while maintaining their status as alcoholics.¹¹⁹ In a 4 plus 1 plurality, the Powell Court upheld the statute. Although the precedential impact of this decision was disputed,¹²⁰ it is affirmed in the Supreme Court’s decision in City of Grants Pass.

In 2006, a Ninth Circuit ruling found that the Constitution’s ban on status crimes covered homeless individuals. In Jones v. City of Los Angeles, six homeless individuals brought suit against the city of Los Angeles for an ordinance that criminalized “sitting, lying, or sleeping on public streets and sidewalks at all times and in all places.”¹²¹ The Ninth Circuit ruled that the City could neither criminalize the status of being homeless, nor acts that are an inevitable result of being homeless.¹²² The Court linked the status of being homeless to the number of shelter beds available. If the number of homeless people in a municipality “far exceed[ed]” the number of shelter beds available at any given time, the municipality will have violated the homeless individuals’ Eighth Amendment rights by enforcing a statute that criminalizes an integral aspect of their status as homeless people.¹²³ Although this specific ruling was later vacated on technical grounds, its logic and holdings were reincorporated into law for the Ninth Circuit in 2019, in Martin v. City of Boise.¹²⁴ While these holdings were not binding outside of the Ninth Circuit, they are highly relevant, as many states within the Ninth Circuit, like California, Hawaii, Arizona, and Oregon, have some of the highest rates of homelessness in the nation.¹²⁵

B. City of Grants Pass Heads to the Supreme Court

Before Martin, the City of Grants Pass enforced ordinances that fined individuals for sleeping on public grounds.¹²⁶ Although the city modified these ordinances in the aftermath of Martin, it did not repeal them. Rather, it tweaked them to only ban “camping,” which it broadly defined as sleeping while using even rudimentary assistance, like sleeping bags.¹²⁷ Still, after Debra Blake was cited for sleeping while using a sleeping bag on public property in 2019, she filed a class action lawsuit on behalf of all homeless people in Grants Pass, arguing that the city’s ordinance constituted a violation of her Eighth Amendment rights.¹²⁸ The Ninth Circuit agreed, since Grants Pass did not have enough shelter beds to house the homeless population within city limits.¹²⁹ Although the ordinance did not directly criminalize camping, mandating only civil fines, the Ninth Circuit panel found that these fines would still lead to criminal prosecution when they were inevitably unpaid by the homeless people fined.¹³⁰ Furthermore, although one could still “sleep” on public property, sleeping outside in Grants Pass, Oregon, where temperatures regularly dip into the 30s,¹³¹ surely constituted an untenable option. To sleep outside with the assistance of a blanket was the only option for the city’s homeless residents. Thus, the ordinance was struck down as violating the plaintiffs’ Eighth Amendment rights.¹³²

This ruling seemed like a hopeful victory for homelessness advocates, one that put a check on the trend of criminalizing homelessness. But the city appealed the case to the Supreme Court, who in 2024 announced their decision overturning the Ninth Circuit’s ruling to allow municipalities to criminalize homelessness.¹³³

C. The Supreme Court’s Ruling

In a decision that made headlines nationwide in June of 2024,¹³⁴ the Supreme Court reversed the Ninth Circuit’s decision and allowed Grants Pass to enforce its ordinance. Justice Gorsuch authored the opinion and was joined by the Court’s five other conservative Justices. The Court’s three liberals, meanwhile, dissented in an opinion written by Justice Sotomayor. Although the Court split along ideological lines in the decision, the decision was celebrated by conservative and liberal lawmakers alike.¹³⁵ This Section provides an overview of the opinion.

The Court’s decision does not explicitly argue that homelessness is the fault of the individual and therefore subject to criminal liability. Rather, it is implied. Moreover, personal responsibility for homelessness is the result of the Court’s logic. Nonetheless, it is still worth examining the Court’s reasoning in detail. The policy arguments are analyzed first, then the more strictly doctrinal arguments.

Almost cynically, the Court, largely parroting amicus curiae briefs submitted on behalf of Grants Pass, frames the policy criminalizing sleeping in public as one “protecting the rights, dignity[,] and private property of the homeless.”¹³⁶ The decision to ban sleeping in public, by the opinion’s logic, has as much to do with protecting homeless people as it does with serving the interests of the housed public.¹³⁷ The Court also highlights that others (with whom it is siding) have concluded that “[j]ust building more shelter beds and public housing options is almost certainly not the answer by itself.”¹³⁸ Rather, the Court concludes in its first section, after laying out the severity of America’s homelessness problem, that municipalities need “access to the full panoply of tools in the policy toolbox” to combat the issue.¹³⁹

What is odd about this abstract characterization of the problem is that it sees the Ninth Circuit’s ruling as limiting the options that municipalities have to combat the issue. But the ruling does not ban cities from criminalizing homelessness outright. Rather, it limits municipalities from doing so when the number of homeless people exceeds the number of shelter beds. All cities would have to do is build homeless shelters. They could then criminalize sleeping in public as much as they want. This argument is only engaged with indirectly by the Court. Rather than engaging with it substantively, the opinion argues that the standard is somehow not clear enough, since it may be difficult to count the number of homeless people on any given night and because it may be difficult for cities to estimate the number of shelter beds available and build adequate housing.¹⁴⁰ All the analysis really shows, however, is that many cities have not made good-faith efforts to comply with the ruling. Rather, cities have routinely crafted threadbare policies to “comply” in appearance only with the requirements set forth in Boise, then been challenged in court when their policies are shown for what they are, then complained to the courts that the standards are unworkable using their own ineptitude as the evidence. Thus, the Court uses the city governments’ incompetence to justify overturning the Ninth Circuit’s precedent. The logic does not acknowledge the agency of the cities and locates the failure as a lack of possibility rather than a lack of will. In reality, it is not the former, but rather the latter.¹⁴¹

Doctrinally, the Court all but overturns Robinson. The Court states clearly that “[t]he Cruel and Unusual Punishments Clause focuses on the question what ‘method or kind of punishment’ a government may impose after a criminal conviction, not on the question whether a government may criminalize particular behavior in the first place or how it may go about securing a conviction for that offense.”¹⁴² This language leaves no room for Robinson, since that ruling did place substantive limits on what could be punished. The Court states that it does not overrule Robinson because no party argued for it to do so.¹⁴³ Instead, it emphasizes that Grants Pass’s ordinance nominally criminalizes the act of camping rather than the act of being homeless. Responding to the argument that those acts inevitably follow from a status, the Court relies on the plurality in Powell, not discussing the argument that being intoxicated in public as an alcoholic is more voluntary than sleeping outside as a homeless person.¹⁴⁴ The Court gives brief mention of a possible common law “necessity” defense, but does not enforce it against Grants Pass and cites a case in which an Oregon appellate court appears to refuse to apply it to the homeless person cited.¹⁴⁵ Finally, the Court argues that there is no limiting principle that would restrict the conduct possibly off limits from punishment, arguing that the decision is better left to the legislature.¹⁴⁶ Given this, laws that criminalize acts that inevitably follow from a status are constitutional under the Court’s standard.¹⁴⁷ The decision reduces the power of Robinson to a mere linguistic limitation. As long as the government body does not explicitly criminalize a status, it is practically free to do so by punishing an act inevitably flowing from a status.

D. What Should the Court Have Done?

This Section devotes some time to defending the logic of the Ninth Circuit’s ruling and engaging critics who have spoken out against the ruling.

While many in the activist community and some in the legal community have already defended the Ninth Circuit’s logic,¹⁴⁸ many more in the legal academy have criticized it.¹⁴⁹ To defend many of the justifications already set forth above, the Ninth Circuit’s logic makes sense. If it is unconstitutional to punish someone for their “state of being,” something that does not have an actus reus and cannot be controlled by the individual in question, how can one criminalize acts that inevitably flow from one’s state of being? Being homeless, as the Ninth Circuit said in Jones, is no more in one’s control than being addicted to narcotics.¹⁵⁰ Moreover, even though Los Angeles attempted to ban “sleeping” on public property, which is an act rather than a status, the court’s logic was that to ban an act that inevitably follows from a status would be to offer a gaping loophole in status crime doctrine.¹⁵¹ It would allow the government, through a simple workaround, to criminalize statuses just as they had in Robinson. The law can and should hold accountable people who commit acts over which they have control, not acts that they are forced to do out of circumstance. Here, Justice White, in his concurrence in Powell, put the reasoning best:

If it cannot be a crime to have an irresistible compulsion to use narcotics, I do not see how it can constitutionally be a crime to yield to such a compulsion. Punishing an addict for using drugs convicts for addiction under a different name. Distinguishing between the two crimes is like forbidding criminal conviction for being sick with flu or epilepsy but permitting punishment for running a fever or having a convulsion. Unless Robinson is to be abandoned, the use of narcotics by an addict must be beyond the reach of the criminal law.¹⁵²

The same goes for homelessness. If it is unconstitutional to explicitly punish the status of “being homeless,” it should also be unconstitutional to punish acts that inevitably follow from being homeless, like sleeping on the street with a blanket in Oregon.

Moreover, it practically goes without saying that a prison sentence for homelessness will likely be short and will not solve the root causes of homelessness in the first place.¹⁵³ It will merely create a cycle of imprisonment and release that will only intensify and worsen the already terrible experience of homelessness.¹⁵⁴

Other legal scholars, like Martin Gardner, have argued that the logic of five Justices in Powell, and their logical descendants in Jones, apply a logic that would implode the entire criminal justice system.¹⁵⁵ Gardner argues that courts inquiring into the social circumstances of individuals who commit certain acts to determine whether or not they have the proper mens rea for violating a statute “is unwise and poses a radical threat to traditional criminal law doctrine that perhaps even threatens the continued existence of the criminal law itself.”¹⁵⁶ Such hand-wringing is likely unwarranted. Realistically, it is hard to imagine the doctrine of banning status crimes and statutes that indirectly criminalize statuses as going much further than narcotics addiction, homelessness, and perhaps some immigration status issues. Indeed, Gardner himself is light on examples.¹⁵⁷ Thus, a worry that criminal law in general faces a “radical threat” from Robinson and its progeny is likely undue.

But, for a moment, let us assume Gardner is correct, and that the logic of Robinson, Powell, and Jones, which begin to consider the social circumstances that affect the human agency of individuals who commit crimes, does begin to question the underlying premises of criminal law. Below, this Note will take the view that the aforementioned European view of human nature and decision-making is the more accurate one than the hyper-individualistic American view. Considering that view with specific regard to this case, this Note asks: why not? If people accept the underlying logic of Robinson, why not “carry things to their logical conclusion”¹⁵⁸ and begin to inquire into the social circumstances of criminals? It seems that Gardner, like the majority in McCleskey v. Kemp according to Justice Brennan, is simply afraid of “too much justice.”¹⁵⁹

From a more abstract standpoint, the status crime doctrine juxtaposed to the traditional schema for construing criminal law through actus reus and mens rea can be understood as a counter-principle juxtaposed to a principle. That is, while in current law the counter-principle takes up a minority space relative to the space occupied by the general principle, this Note argues in the general spirit of critical legal studies that there should be an inversion between the two.¹⁶⁰ That is, the status crime doctrine could be the central principle from which courts begin their analysis, while the classical view could take the minority, exceptional position.

Finally, as elaborated on below, extending the status crime doctrine to include homeless individuals better reflects the reality of their circumstances. Homelessness is a status, and sleeping on the street is an inevitable act that follows from that status. Legally acknowledging this reality not only offers protections to homeless people, but also narrows the legislative path to policies that actually address the root causes of homelessness.

Although Gardner concedes that such a reconsideration might be warranted, he argues that it must come from the legislative process rather than through courts.¹⁶¹ While there is some merit to this argument, other movements for social change have seen courts play a pivotal role in leading the way, like Brown v. Board of Education, which was responsible for ending the policy of separate but equal across the United States.¹⁶² Furthermore, others have argued that dramatic changes that moderate or curtail criminal punishment are far more likely to come from political elites (even democratically elected ones) than through mass movements or popular referenda.¹⁶³ Thus, the mere fact that courts would be responsible for such a change is not enough to object to the possibility of such change where an alternative route is not possible or highly unlikely to yield results.¹⁶⁴

One aspect of the doctrine that Gardner is correct to criticize is the status crime doctrine’s placement in the Eighth Amendment. Indeed, the Eighth Amendment was originally intended only to curtail certain methods of punishments, rather than impose substantive limits on what could be punished.¹⁶⁵ While originalism is a deeply flawed and unwise approach to constitutional law,¹⁶⁶ the original intent of an amendment should probably carry some weight. As such, Gardner thinks that the status crime doctrine should be constitutionally grounded in the Fourteenth Amendment’s Due Process Clause rather than in the Eighth Amendment.¹⁶⁷ Indeed, Robinson is the only case that has imposed substantive limits on what can be punished under the Eighth Amendment.¹⁶⁸ This Note agrees that a Fourteenth Amendment grounding is the superior place to couch the status crime doctrine. Still, this Note does not agree with Gardner that doing so would necessarily limit the logical and doctrinal consequences of Robinson, nor should it. The same arguments will inevitably be made no matter where in the Constitution status crime doctrine is placed.

In sum, the Court should have upheld the Ninth Circuit’s decision and not allowed municipalities a cheap workaround to avoid status crime doctrine. In doing so, the Court has solidified and given legal sanction to the nation’s increasing trend of criminalizing homelessness.

E. A Change in Ideology Must Now Precede a Change in Law

Now that the Court has delivered its ruling and allowed the criminalization of homelessness, a change in popular ideology and legislative posture must now precede any novel constitutional argument or policy proposals to tackle homelessness. Essentially, popular consciousness must change and precede any future change in legality in this domain. Ultimately, this Note takes the view that the European conceptualization of economic conditions in general, and homelessness in particular, better recognizes reality. People are products of their environment.¹⁶⁹ Luck plays a role not only in the situations into which people are thrown, but also the decisions they end up making in those situations.¹⁷⁰ Once more Americans begin to agree with the statement “people are poor because of an unfair society” than “people are poor because of laziness and lack of willpower,” homelessness policy can turn away from its increasingly penal tendencies and towards building shelters and restructuring economic relations. While the Ninth Circuit’s ruling was imperfect in that it did not explicitly guarantee minimum requirements of safety and standards for homeless shelters,¹⁷¹ it acknowledged that homelessness is a “status” akin to drug addiction—one that is dependent on social circumstances and not controllable predominantly by the individual. Thus, the Ninth Circuit’s ruling already contains in it the ideological shift required by the rest of the country for combatting homelessness. But absent a larger, popular recognition of the principle, our law is unlikely to reflect such a principle.

Many specific policies for ending homelessness do already exist.¹⁷² Moreover, legal arguments, like the ones outlined above and ignored by the Court, also already exist. But all of these are moot absent a shift in popular consciousness away from individualism and towards collectivism.

Conclusion

The Supreme Court decision reversing the Ninth Circuit’s ruling in Johnson is the culmination of long-standing trends of the individualization of societal problems. While America’s homelessness rate is not particularly high relative to other western democracies, its rate of unsheltered homeless people is. This is explained by America’s comparative unwillingness to spend as much as other western democracies on its social safety net. But it is also more fundamentally the product of broadly and deeply held beliefs about the root causes of poverty and homelessness as problems of individual rather than societal failure, beliefs that are exacerbated by structural racism.

The Ninth Circuit’s interpretation of the Constitution’s status crime doctrine makes sense in this light, since it accurately and shrewdly closed a loophole that governments could use to circumvent status crime doctrine. Nonetheless, the Court reversed the ruling and allowed municipalities to criminalize homelessness. The Court’s ruling effectively legitimized the view that homelessness is an individual “failing” like murder and allowed cities to criminalize people like Debra Blake. This Note has argued not only that such a ruling is misguided, but also that it rests on a fundamentally flawed view of how individuals and society interact. America’s legal approach to homelessness must see it as a social problem rather than a problem arising from a set of atomized individuals. The Supreme Court, however, has taken the opposite view. Seen through the lens of American exceptionalism, it is an exceptionally American response to further allow the criminalization of homelessness.

Appendix

Unable to find a previously published report comparing international homelessness rates, the author assembled this data using a variety of sources. This the first known assemblage of such data and should help contribute to future research in the realm of comparative politics and sociology. For Europe and the U.K., the source used is Fédération Européenne d’Associations Nationales Travaillant avec les Sans-Abri (“FEANTSA”)’s 2023 report titled Eighth Overview of Housing Exclusion.¹⁷³ For America, the U.S. Department of Housing and Urban Development’s report titled The 2022 Annual Homelessness Assessment Report (AHAR) to Congress is used.¹⁷⁴ For Canada, the report used is the Government of Canada’s “Everyone Counts 2020-2022” survey.¹⁷⁵ For Australia, see the Australian Institute of Health and Welfare’s data on homelessness and homelessness services.¹⁷⁶ For New Zealand, see the New Zealand Ministry of Housing and Urban Development, Homelessness Outlook report.¹⁷⁷ These reports consist of the most recent available data for each respective country.

Each study qualifies that their methods are imperfect and likely undercount the number of homeless people. The point of this Note is not to be the authoritative comparative source on national homelessness rates, since the data is constantly changing and not always reliable, but rather to generally observe that America has a higher rate of unsheltered homeless people than all western democracies analyzed but one, a limited claim which is justified despite some uncertainty in the data. Furthermore, this Note is meant to offer a starting point for future research on the subject, as homelessness is in flux in both the United States and in Europe.

For the population counts, this Note used the following reports: For Europe, see the same FEANTSA report referenced above.¹⁷⁸ For the United States, see the 2022 Census Bureau Data.¹⁷⁹ For Canada, see 2021 Canadian Census data.¹⁸⁰ For Australia, see the Australian Bureau of Statistics.¹⁸¹ For New Zealand, see the New Zealand Government “Stats.”¹⁸²

It is important to note, however, that various countries define homelessness differently. For instance, New Zealand counts as “homeless” people who are staying with relatives temporarily,¹⁸³ while the United States and other countries do not count this group.¹⁸⁴ Thus, in order to ensure that the proper, equivalent numbers are being compared, the data selected from each of the above sources is limited to people falling into one of three categories: (1) people “sleeping rough,” generally outdoors, (2) people sleeping in various forms of short-term emergency housing, and (3) people spending nights in designated homeless shelters. Thus, for the European data, the data from categories one, two, and three from the European Typology of Homelessness and Housing Exclusion (“ETHOS”) is used.¹⁸⁵ For the U.S. data, no special selection is required. For the Canadian data, “sheltered” and “unsheltered” people are counted.¹⁸⁶ For Australia, the categories of “[p]eople temporarily staying with other households” and “[p]eople living in ‘severely’ crowded dwellings” are excluded.¹⁸⁷ For New Zealand, the number of total homeless people is limited to people “[w]ithout shelter” and to those living in “[t]emporary accommodation,” since including the other categories would have been overinclusive.¹⁸⁸

Compiling the data from the preceding sources yields the following chart:

Figure 1. Percentage of Population Homeless by Country

The table with the raw numbers is included at the end of this Appendix for reference. For the second round of comparisons, which compared countries’ homelessness rate relative to shelter available, the following method of calculation was used. The number of people living without shelter was divided by the number of homeless people using the above methods for determining the number of homeless people. Thus, for the European data, ETHOS category 1 was used.¹⁸⁹ For the United States, the “unsheltered” category was used.¹⁹⁰ For Canada, the “[u]nsheltered” category was used.¹⁹¹ For Australia, the “[p]eople living in improvised dwellings, tents, or sleeping out (rough sleepers)” category was used.¹⁹² For New Zealand, the “[w]ithout shelter” category was used.¹⁹³ The data yields the following chart:

Figure 2. Percentage of Homeless Population Unsheltered by Country

It should be noted that not all countries, particularly in the FEANTSA report, had specific data for the number of people sheltered versus unsheltered. Five countries were unable to be included, therefore, in Figure 2: Finland, France, Ireland, Luxembourg, and Sweden. For the specific numerical breakdown of each category, a chart of the collected data is pasted below. Each number in the chart was collected using the methodology outlined above, and each chart is compiled using this data:

Table 1. Homelessness Data by Country
Country	Homeless Count	National Population	% of Population	Homeless Unsheltered	% of Homeless Population Unsheltered
Belgium	6,700	11,554,767	0.058	1,187	17.71641791
Czechia	19,653	10,649,800	0.185	8,892	45.24500076
Denmark	3,738	5,873,420	0.064	535	14.31246656
Finland	794	5,548,241	0.014	N/A	. . .
France	209,074	67,656,682	0.309	N/A	. . .
Germany	210,612	83,237,124	0.253	32,467	15.41555087
Hungary	6,944	9,689,010	0.072	1,649	23.74711982
Ireland	11,632	5,060,005	0.230	N/A	. . .
Luxembourg	420	590,667	0.071	N/A	. . .
Poland	23,812	37,972,812	0.063	2,551	10.71308584
Portugal	9,604	10,298,252	0.093	N/A	. . .
Spain	16,006	47,432,805	0.034	4,508	28.16443834
Sweden	14,065	9,995,153	0.141	990	7.0387487
EU Rate (FEANTSA)	533,054	305,558,738	0.174	N/A	. . .
United States	582,462	333,287,557	0.175	233,832	40.14545155
United Kingdom	86,288	66,796,807	0.129	17,012	19.71537178
Canada	20,000	36,991,981	0.054	5,000	25.0
Australia	58,002	25,760,867	0.220	7,636	13.165063
New Zealand	11,553	4,900,600	0.230	3,624	31.3684757

Note: Data used to produce Figures 1 and 2.

98 S. Cal. L. Rev. 761

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Jacob Schwessinger*

*Articles Editor, Southern California Law Review, Volume 98; J.D. Candidate 2025, University of Southern California Gould School of Law; M.A. 2021, University of Warwick; B.A. 2020, University of Southern California.

Punishment as Placebo

May 2025May 2025Sheldon A. Evans*

The modern criminal punishment regime has failed to deliver on its promise of public safety. For all of the resources expended and all of the human costs incurred, the ever-growing carceral state does not make us safer. Scholars across the social sciences have studied these shortcomings for decades using various methodologies. The burgeoning prison population has little relation to the crime rate, which advocates have argued supports decarceration efforts to remedy the inefficiency, inequality, and subordinating effects of harsh sentencing policies and institutional design choices that have supported the mass incarceration crisis. What then justifies the continued propagation of this failed regime?

This Article proposes a new balancing of considerations to answer this question that innovates punishment theory through the medical and experimental lens of placebos. The efficacy of policy must be balanced with its public perception; thus, a policy may not be effective at fixing a problem, but this is often less important than the perception of the policy. A medical placebo treatment may be physiologically inert, but it still can have a positive psychological and therapeutic impact by making the patient feel better because they think they are receiving effective treatment. In the same way, the cultural value of mass incarceration extends beyond its failed effectiveness by providing psychological and therapeutic value to help the public cope with their fear of crime, their moral commitments to justice, and their socialized feelings towards offenders.

This placebo methodology offers several unique insights about punishment theory and practice that learn from the extensive medical research and ethics literatures. By viewing punishment as a placebo, the modern punishment regime must confront unique questions concerning the social harm of punishment, the justifications for public deception, the ethics of experimentation, and the perverse economics of inefficacy. These theoretical synergies also provide practical insights into how to reverse and regulate such placebo punishments while focusing on a more humane and ethical punishment future.

Introduction

“Freedom from fear is a basic right of every American. We must restore it.”¹ Richard Nixon’s bold message to America illustrates one of the most underappreciated aspects of modern criminal punishment policies: the fear and perception of crime is just as important as the actual presence of crime. Nixon understood these political winds and social yearnings, and he ushered in a new vision of law-and-order national leadership through his War on Crime.² This “fear of crime” was the overriding concern of Ronald Reagan’s administration that passed some of the most sweeping crime bills and policies in modern history.³ George H.W. Bush picked up this thread when he declared that “freedom from crime and the fear that stalks our cities” was a “fundamental civil right” that he was committed to protecting through crime control legislation.⁴ And not to be outdone by Republicans, Bill Clinton continued this trend when supporting further crime legislation by arguing that if “the American people do not feel safe on their streets, . . . then it is difficult to say that the American people are free.”⁵

These words from past presidents highlight an important duality in criminal law that has shaped an entire generation of policy yet is curiously understudied in the legal academy: the relationship between efficacy and perception. In other words, there are two values that criminal law and punishment seek to deliver as a public policy. First is the value of efficacy, which measures how effective the law is in actually achieving public safety goals by lowering crime rates and making us safer. Second is the value of public perception, which measures how the law assuages public fear and controls how we perceive or feel about our safety and the prevalence of crime. Both of these values have explanatory weight in how we study and think about criminal law and punishment. While there has been robust consensus that harsh, tough-on-crime policies have not delivered on their promises of efficacy in making Americans any safer, these discussions miss perhaps the more important value at play in our system. As we can see from former chief executives,⁶ crime policy is just as (or even more) concerned with assuaging public fear and controlling public perception as it is with the law’s efficacy.

This Article takes the path less travelled by focusing on the value of perception in criminal legal policy. Even if we accept arguendo that criminal law enforcement and policies have objectively failed to lower crime rates, do these policies nevertheless hold some value in making Americans feel better about crime? This Article tackles that question through a theoretical methodology that brings to bear medical, social, and ethical considerations in a framework that portrays modern punishment as a placebo: something that is not efficacious at fixing the underlying problems of crime yet might have psychological and therapeutic value in impacting society’s perceptions of crime.⁷

Placebos have been a part of medical research for generations, but they have also become a respected tool for studying social behavior.⁸ For example, a person’s lucky hat might make them feel more confident; as a result, social scientists can conceptualize and measure a positive placebo effect on this person’s perception and expectations when wearing this lucky hat.⁹

At a societal level, the same can be true of legal rules. Anup Malani has considered how legal regulations in healthcare and even tort law shape people’s perceptions and expectations similar to placebo effects.¹⁰ Amitai Aviram has also studied the law’s role in manipulating perceptions when a law is designed to signal an increased or decreased risk of certain activity.¹¹ Regardless of a law’s efficacy, Aviram recognized the law’s role in impacting social perceptions of safety.¹² In this way, the law may have created a safer environment, but its primary value in increasing social welfare was a psychological placebo.¹³

In the criminal legal context, this Article argues that modern punishment policies—and specifically, mass incarceration as a case study—would benefit from being conceived as a placebo. These policies promise to address the social problem of crime, but they are no longer designed or implemented efficaciously to fix that underlying problem. Instead, the primary value of these policies to the public is their ability to control, assuage, and in some cases manipulate feelings, perceptions, and expectations toward crime.

To build out the analogy a bit further, let’s liken punishment to a form of medical treatment. A patient may go to see their doctor with a particular physical health problem; the doctor may choose to prescribe the patient a placebo treatment that is not meant to efficaciously treat the patient’s physical problem but instead is meant to make the patient think they are receiving an effective treatment. The placebo is only delivering a psychological or therapeutic benefit to the patient. And because of the interesting ways that placebos work, the patient does indeed feel better. Applying this logic to punishment requires a bit of imagination, but nevertheless has conceptual value. The patient is the public, who is dealing with the social ill of crime. Thus, the public/patient seeks solutions from social decisionmakers such as politicians, police officers, prosecutors, and other actors who diagnose the problem and purport to give an effective solution; however, like a placebo, these policies that have increased the surveillance state, police power, and mass incarceration have not delivered on the efficacy front but are instead meant to control public perception and make the public feel better about crime. I understand this is not a perfect analogy and there are nuances to be explored below, but using this methodology of placebos is an important turning point in how we should think about criminal policy and how the efficacy and perception values interact. The objective study of efficacy must be balanced with these more subjective studies of feelings and perceptions of crime to understand the social currency of punishment.¹⁴

Using interdisciplinary tools of medicine, sociology, and ethics, this Article explores more than a mere metaphor by developing a fuller methodology that reframes criminal punishment in ways that hold valuable insights and complexities for the criminal theory literature. First, the placebo methodology studies and illuminates the types of social cues that impact public perception in the criminal space, such as the emotion of fear and the social and cultural meanings of punishment.¹⁵ Second, it refocuses the punishment literature on the oft-forgotten history that the medical field shares with criminal law.¹⁶ The so-called disease of the criminal mind,¹⁷ the dangerousness of the disabled,¹⁸ and the criminalization of illness¹⁹ are just some examples. Just as individual people could be perceived as dangerous due to an illness or impairment, so too have we used the criminal law to excise people from society that threatened our fragile moral and cultural foundations. Third, the socio-medical ethics of placebo treatments frame unique questions specific to that field that provide an opportunity to discuss the larger ethical questions of punishment. For example, the crossover between the ethics of harm, benevolent deception of the public/patient, using placebos and punishments as tools of experimentation, and the economic incentives at play are important considerations of both the theoretical and practical stakes.

Finally, the above theoretical framings are foundational to the practical interventions that the placebo methodology might inspire.²⁰ As with all punishment, underlying theory heavily impacts the types of practical punishments we impose on people who have violated criminal laws.²¹ Throughout the analysis of the placebo methodology, this Article explores unique policy solutions gleaned from medical and scientific literature to consider how to fix the problems that overreliance on placebos can bring. This includes unique interventions rarely trodden in the punishment literature, such as new approaches to government regulation, ethical boundaries, policy experimentation, and cultural messaging. Thus, after a generation of failing to solve the problems of mass incarceration and the ballooning punishment regime, the placebo methodology hopes to elucidate innovative practical interventions.²²

The placebo methodology and all its theoretical and practical draping must ultimately answer the most important question of punishment scholarship: Is punishment justified? If punishment does indeed operate as a placebo and provides meaningful value to public perception, is this enough to justify the status quo? Many people would agree that in general, we police and punish too much in this country. And even if it does not make us any safer, we should not give short shrift to the law’s power to make us feel better. These are questions that address the ultimate payoff of the criminal legal system and the degrees of punishment severity to which we are willing to condemn our fellow man for the utilitarian benefit of our collective feelings.

This Article humbly contributes to these discussions in four parts. Part I builds out the placebo methodology by diving deeper into the shared logic between placebos and punishment as treatments for physical and social ills, respectively. Part II applies the placebo methodology to the mass incarceration crisis as the most salient case study that dominates modern conversations about punishment. Part III further explores the placebo methodology as it applies to mass incarceration under a host of different socio-medical considerations, including the harm principle, justified deceptive practices, the ethics of experimentation, and economic incentives. Further, this Part also confronts the all-important question of whether punishment is justified under the placebo methodology. Part IV closes the Article by broadening the framework to other worthwhile legal disciplines, as well as considering tangential socio-medical framings of punishment that might also be worthy of future exploration. This Article hopes to advocate for the placebo methodology as a malleable toolset that should be utilized in future legal research exploring social modeling of behavior and policy.

Exploring punishment as a placebo policy is more than just a clever alliterative analogy. The placebo methodology gives punishment theory and policy interventions a new set of tools that fully appreciate the cultural and social impacts of criminal punishment. And with such an outlook that values both actual and perceived goals and benefits, we can establish a more careful and nuanced critique of the status quo that calls for a rejection of placebos in favor of panaceas.

I. The Placebo of Punishment Theory

When boiled down to its purest form, the placebo methodology seeks to add a set of social and cultural tools to understanding modern punishment based on how placebos work in the medical field.²³ Such analogies are not new in legal scholarship and often add value by discovering latent assumptions or highlighting underappreciated aspects of legal analysis through a new theoretical framing.²⁴ Following this tradition, this Part pushes deeper by explaining why framing punishment as a placebo is more than a metaphor, but a more fulsome methodology. Section I.A fleshes out the theoretical and literal connections between punishments and placebo treatments by focusing on the actors in each system. Section I.B explores the placebo effect of punishment and whether it succeeds in making us feel safer. These Sections offer important insights into the socialization of punishment and how we should think about the causes of crime, as well as introducing the ethical and practical dilemmas of power, politics, and subjective perceptions to be explored in later Parts.

A. The Placebo Methodology

The theoretical and logical connections between placebo treatments and criminal punishment is a simple idea: Like a medical treatment, punishment has been prescribed to our modern society to solve the underlying problems of crime; but like a placebo, our modern punishment system does not deliver on its promises of efficacy by lowering crime rates but rather is meant to control and mitigate public perception of crime.

Although the exact definition of a placebo treatment is contested in the medical literature,²⁵ placebos, for purposes of this Article, can be defined as treatment that is administered by a person in power (usually a doctor or medical researcher) to provide psychological or otherwise therapeutic benefits to make patients feel better, with little or no active ingredients that would be efficacious to treat the physical medical problem.²⁶

In this methodology, the individual patient being treated is the body politic. This is based on a larger relationship between the study of the physical body and its relation to society as a whole.²⁷ Since ancient times, the human body has served as a structural archetype of society and its institutions.²⁸ The Greek and Latin traditions had a double meaning for the term “diet.” It meant both a mode of ordering one’s life, as well as a political assembly of princes that performed legislative and administrative duties.²⁹ The term “regimen” also had a dual meaning, referring both to a medical means of therapy and also a system of government that we refer to as a “regime.”³⁰ This is part of the larger Western tradition that has found a double and connected linguistic and cultural meaning between caring for the individual body and upholding the larger social body. Political tradition borrows from human and natural traits to name its institutions, such as the “head” of organizations and governments, “branches” and “arms” of the same, and using the “body politic” to identify an entire society as one social organism.³¹ Religious tradition is rife with such symbols, often using the body as a metaphor for spiritual insights: the body of Christ was a symbol for the institutional church; Adam’s rib was a symbol of patriarchy; the flesh versus spirit dichotomy that represented moral weakness and strength respectively; and the list can go on.³² These examples do not do justice to the sheer number of body-as-society analogies that abound to illustrate the body’s enduring importance into how we think about society and its institutions. The human body is a foundational lens of Western thought and philosophy on social order.³³ Society is personified because our political and philosophical tradition recognizes that institutions mirror the very humans they seek to regulate.³⁴

The body’s dysfunction and disease has also been an important characterization of social disorder in Western thought. Physical diseases were frequently interpreted as manifestations of a “deeper malaise in the social structure.”³⁵ Consequently, the concept of disease was used as a symbol of social problems that could break down and destroy the body politic just as actual disease could break down the physical body. Only a few hundred years ago, obesity was considered to be an individual “manifestation of the flabbiness of the social system,” especially as it exposed the sedentary lifestyle of the rich.³⁶ Even cancer has a history of being described as a “disease of civilization” that manifested during certain social failings.³⁷ This is an interesting cause-and-effect relationship because in many ways, social hierarchies have always exposed some classes of society to various diseases. For example, the social hierarchy of the rich allowed those in agrarian societies to live less active lifestyles.³⁸ Thus, social ordering can certainly impact the development of individual diseases, which in turn communicates a broader identity of a society in accordance with its social priorities. Consequently, the history of associating the presence of physical disease as a larger sign of social disorder, malaise, and even moral decay is well documented.³⁹

The individual human body is more than biological muck; it is our tool for interacting with and understanding the natural and social world. The body serves as a mirror image to help us understand social institutions, and in turn, those social institutions help shape the roles of our bodies in social structure. The intersection between our bodies and our institutions govern issues of “health, gender, childhood, ethnicity[,] and disability[,] and many more substantive areas[,]”⁴⁰ including crime and punishment.

If the patient is the public, then the patient’s disease can be understood as crime itself that threatens the health of social order just as physical disease causes strain and breakdown of the physical body. To let such a social disease fester and ferment would be tantamount to allowing a physical plague to spread without proper intervention of cultural sanitation.⁴¹

The disease/crime comparison is a longstanding principle in our social understanding and moral disapproval of deviant and antisocial behavior. Academics, commentators, and public officials have often used this crime/disease analogy to display their disgust and rally public and intellectual opinion. Emile Durkheim and contemporary scholar Martha Grace Duncan have separately written about how society treats crime and criminals as socially unclean things that must be resolved through institutional intervention.⁴² Academics have built on this concept by discussing a “quarantine” model of criminal justice that evokes the need to separate people with the contagious disease of criminality from the rest of society;⁴³ there are frequent comparisons to crime as a cancer of society that

suggest it will metastasize unless properly dealt with.⁴⁴ Even our most liberal politicians have fallen prey to such logic, comparing the spread of violent crime to “a national plague.”⁴⁵

Given these rhetorical similarities, it comes as no surprise that the criminal law has often found an ally in the medical sciences. First, we can consider how disease and crime were understood together throughout our history, which captures how physical diseases have been criminalized to various extents as a method of preserving social order and public health. Criminal laws have often been used to identify medically “dangerous” and “contagious” people who suffer from a host of diseases and ailments and excises them from the community through the same logic of medical quarantine. As medicine was used to diagnose a host of illnesses that illustrated social anxieties toward what dominant groups deemed unacceptable behavior,⁴⁶ crime policy followed close behind to regulate and punish such behavior.⁴⁷ Religious laws that determined cleanliness go back for thousands of years, and were used to regulate and criminalize behavior of people suffering from leprosy and bloodborne diseases.⁴⁸ In the era of the HIV/AIDS epidemic, intentional spread of the communicable disease was at one point criminalized as first-degree murder; only in the 1990s were these doctrines struck down in favor of lesser criminal offenses.⁴⁹ Thus, the medical authority of the era always determines which individuals are dangerous to public health, and criminal law has been a part of the infrastructure used to prevent spread of these diseases. It has also been used to assuage the public that they would be safe from such “dangerous” individuals because the law would keep them in their appropriate place.

Mental illness and disability have a jaded past that continues in criminal law to this day. Homosexuality was treated like a mental illness up until only a few decades ago,⁵⁰ and was criminalized accordingly.⁵¹ Alcoholism, substance abuse, malingering, and even political dissent have been subsumed under various definitions of mental or physical disease to be regulated by the criminal law.⁵² People dealing with various mental health issues have often suffered from stereotypes that they possess characteristics of criminality.⁵³ These people are often mischaracterized by police and bystanders as being more dangerous, which then justifies legal use of force and coerced treatment through criminal law.⁵⁴ Consequently, the prison as an institution has turned into the neoliberal mental health facility,⁵⁵ often responsible for distributing more prescription mental health treatments than any other institution.⁵⁶ This should come as no surprise because over one-third of incarcerated persons have been diagnosed with a mental illness.⁵⁷

The criminality of physical ailments and the treatment of mental illness change according to social constructions of who the dominant social group deems deserving of criminal punishment. As Jamelia Morgan has studied, mental and physical disability is just one area that has been “conceived of as a social contagion or pathology to be contained through policing and carceral control.”⁵⁸ All of these criminal laws are socio-medical reactions that were purportedly meant to keep society safe based on the best science of the time; but they often functioned by subjugating the sick, disabled, and the most vulnerable. Fear was central in these criminal responses; it was fear of the unknown, fear of the unclean, and fear of the transmission of such conditions in the general public.⁵⁹

This interaction between the patient/public and disease/crime raises even more interesting questions. For one, the entire public may not be suffering from the disease of crime, just as a medical malady might not be spread throughout the entire body. Just as diseases are often concentrated in certain areas of the body, crime too is unfortunately concentrated in certain pockets of our body politic. Crime tends to be concentrated in poor areas with high population density.⁶⁰ Perhaps there is a further lesson here in the methodology; neglect can often lead to problems. If an individual neglects to care for their body through nutrition, hygiene, or general maintenance, we might not be surprised that such neglect correlates with medical problems down the road. So too should we think about our body politic neglecting our inner cities, our less financially fortunate citizens, and how such social and institutional neglect leads to problems of crime.

Also, conceptualizing crime as a social ill or disease can lead to some problematic conclusions unless properly contextualized. Framing crime as a disease is a tool of dehumanization that seeks to justify treating criminal offenders as a cancer: something to be removed or excised from society, or even killed.⁶¹ Humans have a pattern of dehumanizing others by comparing them to animals, nonconscious life forms, or inanimate objects to justify treating them as nonhumans. This is one of the darkest corners of our collective psyche; labelling people as rats, roaches, diseases to be cured, mud and filth, and a whole host of other analogies that form the basis for treating human beings like those things being analogized.⁶² Cages and steel bars are suitable for animals; a dustpan and trashcan are suitable for dirt and grime; excising and killing unhealthy cells is quite appropriate for cancer and biological diseases. We must resist the urge from our ancestors to go down this dehumanizing path because history bears witness to where it often leads. Labelling people that violate criminal laws as animals, dirt, or cancerous cells has the danger of repeating the punishment mistakes of the past.

Instead of using the cancer analogy and the broader disease/crime framing to dehumanize and justify excising or segregating cancerous cells, we should instead address the underlying problems to prevent the disease in the first place and to make conscious interventions for the social body to heal cells to prevent their criminal or antisocial growth.⁶³

The disease/crime framing also challenges us to consider the possibility that a treatment itself has become harmful to the social body. Just as chemotherapy introduces a carefully regulated level of poison to the body to kill cancerous cells, such a treatment can also wreak havoc on healthy cells and the body as a whole.⁶⁴ Unfortunately, chemotherapy also has the potential to lead to adverse health outcomes, including death, as part of the natural course of the treatment.⁶⁵ The considerations of punishment and mass incarceration must ask these same questions. How much has punishment had external and downstream impacts on the rest of society, and might it too also lead to negative outcomes for the body as a whole? And as will be discussed below, has the placebo treatment of mass incarceration itself become harmful to the body? The final part of the placebo analogy connects the role of doctors to various actors in the criminal justice system who prescribe and apply the treatment of punishment. Doctors play an important role in the healthcare system as care providers, and they deal directly with patients to give medical advice and prescribe treatments. Even with all of the medical advancements and growth in scientific knowledge, doctors continue to this very day to prescribe placebo treatments to their patients in clinical settings.⁶⁶ In this way, public officials in our executive departments and legislatures have built similar relationships of trust with their constituencies who have decried the social disease of crime; these decisionmakers have prescribed a solution of harsh criminal punishment as a way of treating this disease and returning society back to a state of health and harmony.⁶⁷ High-level politicians help facilitate and work with legislators and state actors such as police and prosecutors to deliver the treatment of punishment at the street level.⁶⁸

However, the incentives of politicians are not congruent with those of doctors. Consequently, we see politicians wield their prescribed treatment of punishment in a perverse loop meant to keep themselves in power. Instead of using criminal policies to make Americans feel safer, they use these policies to control public perception of crime in a way that ensures it will be politically advantageous. This is accomplished through the somewhat oversimplified political process that follows: Politicians and media whip up and create fear of crime in the populace because fear drives votes⁶⁹ and views⁷⁰ respectively, and voters give power to these politicians who promise to fix the problem.⁷¹ While crime is indeed real and its impacts often terrible on an individual and societal level, politicians perversely operationalize fear of wrongdoing to bolster their political power.⁷² Therefore, there is an incentive to maintain an optimal level of fear and to push the “fear” button every few years to ensure that voters continue to trust in the politician and their policies. In 2022, for example, Fox News ramped up its coverage of crime to prime the public to vote for law-and-order Republican candidates before the congressional midterm elections; after the elections, their coverage of crime dropped by a stunning 50%.⁷³ Studies have also shown that Americans’ perception of crime changes favorably when a member of their party occupies the White House.⁷⁴ Thus, while Americans do not feel safer from crime, they do feel that they are in safe hands when voting their preferred politician into office.⁷⁵ Putting these principles together, the placebo methodology takes shape by explaining the operation and incentives of using punishment as a treatment that turns out to be a mere placebo as a consequentialist project.⁷⁶ Most people, even in high-crime areas, aren’t often witnesses to actual crimes that unfold before them.⁷⁷ They hear about crime from their friends, they see it on the news, and they feel the anxiety of their neighbors.⁷⁸ Thus, lowering these perceptions of crime would have multiple social benefits. Businesses are more likely to invest in areas that they perceive as low-crime, individuals are more likely to civically engage in these communities, and even property values can be impacted by market perceptions of crime.⁷⁹ Thus, if a placebo policy of punishment made society feel better, the law would be justified as yielding positive future outcomes. This explains in part why politicians and decisionmakers have been so adamant to prioritize public perception of crime.⁸⁰ It is indeed a social lever they can turn to yield the social and political outcomes they desire.

The social and political aspects of crime policy are all tied together in a muddled mess that prioritizes perceptions of crime over the efficacy of crime policy. Thus, the placebo of crime and punishment in the modern era is indeed meant to control perception, but in a way that benefits the very people who prescribe the treatment.

Punishment operates on a placebo treatment cycle. The placebo methodology shows how punishment policies utilize similar social and cultural dynamics to control public perception and feeling toward the diagnosed problem, as opposed to treating the actual problem through effective means. Ultimately, this operates according to power, which is a similar motivation in most policy, medical and criminal alike.

B. The Placebo Effect

Conceptualizing punishment as a placebo gets even more nuanced if we theorize the placebo effect, which refers to the physical benefit that placebos can produce for patients. So far, this Article has focused on the dichotomy between efficacy and perception, arguing that punishment acts like a placebo because these criminal policies have little efficacy but instead operate to control public perception in ways that benefit politicians, law enforcement, and even the broader Prison Industrial Complex (“PIC”).⁸¹ But placebos provide more than mere psychological benefits. One of the curious miracles of placebo treatments is that if a doctor prescribes such a treatment to a patient, the patient will certainly feel better; but in some circumstances, the placebo will actually deliver a measurable physical benefit in which the patient’s body will actually improve from a biological and medical perspective. The medical literature has extensively studied this phenomenon called the “placebo effect,” in which a treatment that has little physical benefit can somewhat trick the patient’s body into activating its own powerful disease-fighting and recovery systems.⁸² This Section theorizes what this means for thinking about punishment as a placebo.

Modern medicine and sociology have come together to understand the mysteries of how the positive placebo effect works. Scientists have hypothesized that placebos release endorphins and dopamine in the brain, which have been shown to increase pleasure and decrease the feeling of pain;⁸³ these natural chemicals in the brain also impact a patient’s positive motivation and psychological outlook on their medical condition.⁸⁴ Sociologists add to this understanding by explaining the cultural and social meanings that give placebos such power.⁸⁵ First, the disease must be socially conceptualized since the diagnosis dictates the treatment. In some cultures, a headache might be the affliction of demonic forces, or it might be chemical activity in the brain.⁸⁶ Thus, the meaning and definition of the disease is the starting point to understand the cultural and social power of the placebo. Second, the doctor’s relationship to the patient also carries weight; Anne Harrington—a prominent leader in placebo studies—once characterized doctors as walking placebos because of their powerful role in shaping patient expectations.⁸⁷ If the doctor, healer, or shaman in the community is somebody whom a patient respects, trusts, and recognizes as a person of high social standing, these feelings will increase the patient’s own subjective belief that the doctor is prescribing them a treatment that is actually efficacious.⁸⁸ Third, patients’ own experiences shape their subjective social understanding and response to placebos. Research shows that patients who have had positive experiences with placebos in the past are good candidates for future placebo treatments.⁸⁹ Thus, hypothetically, if a patient had a good experience with eye of newt to treat their previous malady, this could subjectively impact their belief that eye of newt will perform well with a new ailment, or they would just as soon trust their doctor’s prescription of a crocodile tooth.

There is something about these medical and sociological factors that trigger the body’s own immune system towards positive physical results. Placebos can deliver positive medical results when treating things like the common cold and cardiovascular disease.⁹⁰ Placebos are also incredibly effective at treating more subjective medical ailments such as pain and depression.⁹¹ As it turns out, placebos can deliver positive psychological and physical results.

The placebo effect offers an interesting insight into crime and punishment as a social institution that also prioritizes and capitalizes on the subjective perceptions of the public in ironic ways that might indirectly produce public safety benefits. The crime and punishment literature has long had to grapple with two seemingly contradictory truths. On the one hand, crime rates have steadily declined in this country since the 1990s, which means we are actually getting safer.⁹² On the other hand, there is near universal agreement among criminologists, sociologists, and economists that modern incarceration policies have contributed very little, if it all, to this public safety outcome.⁹³

Scholars have tried to answer the all-important question of the factors that cause the rise and fall of crime. This Article offers a unique contribution to this literature by conceptualizing the placebo effect of punishment, which describes the indirect ways that punishing offenders over the past generation has triggered other social and institutional movements that are much more responsible for the actual drop in crime than the actual placebo of punishment itself. In other words, punishment acts like a placebo because it manipulates how the public perceives crime in ways that trigger other social and institutional behaviors that actually are responsible for the lower crime rate. While punishment may have a very small direct effect on crime, it has much more indirect impact on crime.

For instance, more prisons and the growth of the PIC might mean more police officers on the streets to fill these prisons. While the police and prisons are two separate institutions, there is tremendous practical overlap in how they complement each other and work together. Consequently, as the number of prisons across the nation skyrocketed during the 1990s prison-building boom, so too did politicians dedicate tremendous funds to hiring thousands of police officers to enforce the rising drug war.⁹⁴ In this way, punishment policies of incarceration indirectly supported the growth of police forces. And there is evidence that the presence of additional police officers on the street deters would-be offenders because it increases the likelihood that they will be caught in the act or effectively tracked down soon after committing a crime.⁹⁵ Similar to a placebo, punishment policies did not contribute to actually treating the disease of crime; instead, they triggered other institutional behavior to increase police presence in a way that more effectively lowered the crime rate.

In some places, there might also be a self-fulfilling prophecy for communities that feel safer and employ social behavior that then makes them safer. Pedestrian traffic is a well-documented feedback loop in this regard, because people who feel that their neighborhood is a safe place to walk will choose to walk more places during day and night hours; in turn, this increased pedestrian traffic means that there are more eyes, ears, and potential witnesses which deter criminal behavior in these neighborhoods.⁹⁶ It also might be interesting to theorize how punishment policies indirectly impact other social behaviors that have been linked to lower crime rates, such as increasing employment and high school graduation rates,⁹⁷ among others.

These few paragraphs are not meant to be exhaustive and represent a short foray into digging into the empirics of crime policy to understand how punishment policies might be impacting social and institutional behavior to indirectly have positive impacts on the social ill of crime. Just as placebos operate according to biological functions that are triggered through a patient’s social understandings and expectations, so too can punishment be theorized as a treatment to the social ill of crime that triggers beneficial behaviors that produce lower crime rates.

* * *

As a closing thought to this Part, I implore readers to not lose the forest for the trees. This Article has thus far argued that mass incarceration policies can be conceptualized as a placebo treatment that while not efficacious, may nevertheless deliver benefits to public perception. But admittedly, analogizing criminal punishment to medical placebo treatments is not a 1:1 comparison; nor is it a perfect analogy that is seamlessly intuitive or foolproof to the avid intellectual. For example, comparing politicians, police, and others to doctors leaves a bit to be desired given the unique doctor/patient relationship that may not be fully captured in the punishment context. Some might find that analogizing crime to a social disease is also problematic and might struggle to make the connection between an individual’s reaction to a placebo treatment and society’s reaction to the institution of punishment. But the frustration that comes from trying to perfectly fit an octagon peg into a round hole misses the fact that the shapes are similar enough to make observations that might be shared by both. Sure, it doesn’t fit perfectly, but they are indeed from the same family and the same logic of design.⁹⁸ Like all analogies, theorizing punishment as a placebo helps us conceptualize and understand similar principles in seemingly unrelated subjects.

The placebo methodology that this Article builds must be judged according to its ability to highlight latent truths about punishment policies. Consequently, this punishment as placebo analogy should be justified because its theoretical and explanatory contributions outweigh its imperfections around the edges.

II. Mass Incarceration as Placebo

The theoretical grounding of placebo punishment policies is perhaps most impactful in how we should reconceptualize the study and discussion of mass incarceration. Although the placebo methodology could be applied to many case studies of different punishment tools,⁹⁹ mass incarceration is the “beating heart”¹⁰⁰ of the criminal punishment system. It is the prison, as an institution, that is at the center of the wider penal imagination and has been imbedded with so much social and cultural meaning as to how we separate society from dangerous “others.”¹⁰¹ While the national population of incarcerated persons is declining,¹⁰² the carceral system still boasts physical control over 1.9 million people.¹⁰³ Nearly 7 million are surveilled under a growing e-carceration and parole population.¹⁰⁴ And the carceral state extends even further to the experiences of the 113 million individuals who have had close relatives incarcerated at some point in their lives.¹⁰⁵ In effect, one-third of Americans have been impacted by the wide and unforgiving reach of mass incarceration.

The placebo methodology as applied to mass incarceration argues that it is best understood as a set of laws and policies meant to control public perception of crime, playing on the subjective emotions of fear, safety, and the ever-elusive ideal of justice. Much has already been written about the failed efficacy of mass incarceration policies to improve public safety,¹⁰⁶ but this misses one of the foundational principles of the policy’s placebo: regardless of its actual effects, it still delivers costs and benefits based on how it controls public perception of crime.

This Part builds on the existing mass incarceration literature by discussing whether the benefits of perception are worth the costs of mass incarceration. Section II.A develops the history of mass incarceration through the lens of policies that would assuage public fears, and Section II.B continues by discussing the policies’ ineffectual impacts on public safety. In light of these historical and modern conclusions, Section II.C argues that the placebo methodology more accurately captures the intent and impacts of mass incarceration policies.

A. Research and Development

The history of fear and mass incarceration in the modern era begins with the unprecedented crime wave in the 1960s and 1970s. During these two decades, violent crime rose by 271%, burglary and robbery rose by 231% and 318%, respectively, and similar increases were reported for sex crimes and property crimes.¹⁰⁷ This fear of the “other” was further cemented by studies during the 1970s showing that a small number of offenders were responsible for a high proportion of offenses committed.¹⁰⁸ Further, criminological studies began persuading lawmakers that rehabilitation did not work consistently¹⁰⁹ and that high levels of recidivism would continue without more incapacitation efforts.¹¹⁰

The Nixon administration, for its part, was driven by its own fear of political opposition, namely from recently empowered African Americans after the Civil Rights movement and anti-war “Hippies,” two groups that threatened Nixon in national politics.¹¹¹ Thus, Nixonian criminal politics was defined by convincing the nation that “the whole problem is really the blacks . . . The key is to devise a system that recognizes this while not appearing to.”¹¹² While there was already a racialized fear of the dangerous “other” imbedded in American culture,¹¹³ the rise in crime during the same era as the Civil Rights and anti-war movements prompted an unprecedented fear of crime that was directed towards certain communities.¹¹⁴

By targeting these “others”—groups that were outside of the mainstream social and cultural understandings of American white middle-class identity—Nixon captured the populism of his era. Social scientists have long recognized that the fear of crime became a defining “cultural theme” during this era that called for policies that “aim[ed] to reduce fear levels.”¹¹⁵ Empirical criminologists of the time were baffled by these changes. The mass incarceration policies developing before their very eyes had little to do with actual crime control or preventing victimization but were instead driven by fear and myth that traded on racial and cultural stereotypes emerging from the anxieties of suburbanite imagination and political rhetoric.¹¹⁶ And this penal populism of fear has been carefully nurtured as a winning political strategy ever since.¹¹⁷ National and local actors alike adopted this tough-on-crime strategy, promising more punitive punishment as a way of promising to reduce fear and anxiety related to crime.¹¹⁸ Consequently, fear was increasingly used as a justification and catalyst for harsher punishments, and politicians were all too willing to stoke, control, and benefit from these public fears.¹¹⁹

B. Treatment Efficacy

Although controlling public perception and fear of crime was one of the primary drivers of developing mass incarceration policies, their efficacy in reducing crime should not be ignored. The mass incarceration policies of the 1980s and onward have enjoyed association with lower crime rates because crime has generally gone down over the past thirty years.¹²⁰ But there is debate among criminologists and economists about the actual correlation between incarceration rates and crime rates.

The weight of analysis tends to agree that there is some correlation between the population of incarcerated persons and the crime rate, but the connection is minimal.¹²¹ In just twenty years, between 1980 and 2000, the incarceration rate exploded by over 300%.¹²² And yet, this treatment has yielded marginal utility. For example, Steven Levitt found that increased rates of incarceration in the 1990s were only responsible for 25% of the drop in crime during that time.¹²³ Don Stemen found that between 1980 and 2000, every 10% increase in the prison population was only responsible for a 2% to 4% decrease in the crime rate.¹²⁴ Additionally, many others have come to argue that there is a much lower correlation; they posit that the exploding incarceration rate was only responsible for a 2% to 15% decrease in crime rates.¹²⁵ But even the high watermark of a 25% impact should make us question whether such a use of resources is justified when these resources could be reinvested in programs that have been proven to be far more efficient at lowering crime rates.¹²⁶

Another group of scholars refutes the above by arguing that there is no statistically significant correlation between the increase in the population of incarcerated persons and the decrease in crime.¹²⁷ Starting in the 1990s, the National Criminal Justice Commission found that there is “little or no correlation between rates of crime and the number of people in prison.”¹²⁸ Twenty years later, during a time when the incarcerated population reached its height,¹²⁹ Jeffrey Fagan and Tracey Mears found that increasing the number of people incarcerated resulted in “stable if not higher levels of crime.” They decried the lack of commensurate public safety benefit for the ever-increasing rates of incarceration.¹³⁰

A smaller group of scholars have come to even starker conclusions, arguing that mass incarceration has had negative impacts on public safety, causing a criminogenic effect. Don Stemen found that when incarceration rates increase past 325 to 492 inmates per 100,000 people (of which many states have far surpassed), crime rates begin to rise.¹³¹ Francis Cullen, Cheryl Jonson, and Daniel Nagin performed a systematic review of multiple meta-analyses of the impacts that incarceration has on crime rates and reported that in the most compelling studies, incarceration was not associated with any deterrent effects but instead increased recidivism rates anywhere from 7 to 14%.¹³² These authors have linked this data to a number of potential explanations since incarcerating large numbers of people can depress economies, threaten social network formation, and politically disenfranchise communities, which can then lead to criminal behavior.¹³³

On the other end of the spectrum, there are scholars that have defended the status quo, arguing that mass incarceration policies in the 1990s were causally related to lower crime rates. This literature is most associated with the harshest criminal sentencing policies, such as the three strikes laws that went into effect during that time.¹³⁴ But even among these scholars, there was growing unease about the continued growth and marginal impacts of the carceral state. The intellectual and empirical journey of John DiIulio, Jr. illustrates this point. In 1996, he argued that prisons were a bargain since locking up a person for “about $25,000” per year in the prison system saved society from the potential murder and mayhem he or she would otherwise be committing on the streets.¹³⁵ As a Democrat, he channeled bipartisan fears in the 1990s, stating that “a wave of young, violent, mostly minority, remorseless juvenile delinquents, known as super-predators would plague the country and increase crime rates” without harsh incapacitation measures.¹³⁶ Yet only a few years later in 1999, he realized that mass incarceration had reached the limits of its utility. He argued that locking up more people would not have any further public safety benefit and that it was time to shift the penal focus to drug treatment and effective parole programs.¹³⁷ Unfortunately, politicians benefiting from mass incarceration were not so keen to heed his advice.

These seemingly conflicting streams of data can be best harmonized with a general model of marginal utility across four stages.¹³⁸ At the first stage, studies have shown that incarceration is most effective as a deterrent and incapacitation tool when the crime rate is high.¹³⁹ For every unit of punishment, you get a higher payoff in crime reduction. At the second stage, punishment suffers from the law of diminishing returns, in which every unit of punishment still achieves a measure of crime reduction but much less than the previous stage.¹⁴⁰ At the third stage, the crime rate levels off, during which every unit of punishment does not achieve any payoff in crime reduction.¹⁴¹ At the fourth stage, there is an inflection point at which punishing offenders actually increases the crime rate.¹⁴²

Like many medical treatments, law and policy can have similar diminishing returns over time as social problems and disease adapt in the same way that all organisms adapt and evolve in the physical and social body. As a result, a treatment program must be adaptive to long-term illnesses and should be administered differently in different phases.

These statistical studies, cost-benefit analyses, and other tools of administrative expertise have been abandoned in the criminal punishment regime.¹⁴³ There are decades of data to which this Article cannot do justice that question and prove the inefficacy of mass incarceration policies to improve public safety. Thus, a policy that fails to track and account for actual impacts on public safety should be understood as prioritizing the placebo methodology’s focus on tracking and accounting for public perception of crime, which is all too vulnerable to political power, abuse, and perverse incentives.

C. Placebo Responses

To summarize, mass incarceration policies do not deliver on their public safety promises and were never solely designed to do so. Out of a culture of fear, myth, and superstition, our society decided to pivot from careful, rehabilitative carceral efforts to a mass incapacitation effort to satisfy collective retributive cultural morality and expressive condemnation of the “others” who we feared.¹⁴⁴ We now benefit from thirty years of data that shows that mass incarceration policies are no longer (and may never have been) effective at lowering crime rates. Yet we still choose to punish harshly and ineffectively. This Article concludes that modern punishment can no longer be justified under the veneer of public safety. Rather, it is motivated by controlling public perception and fear of crime in a way that subjugates entire communities to the benefit of those in power. This Section further cements the data connecting medical and social placebos in the punishment context. First, placebos enjoy the largest impacts on patient outcomes when the patient is experiencing the highest amount of symptoms. For example, placebos deliver the highest amount of pain relief when the patient is experiencing the most amount of pain.¹⁴⁵ This makes intuitive sense; when somebody is experiencing pain, their main concern is finding something to subside that pain, so they are more susceptible to and even desperate for any treatment that a trusted doctor tells them will provide relief. The subjective aspect of pain means that the placebo’s effects are judged in relation to the level of pain the patient is suffering. The higher the pain, the more the placebo relieves.¹⁴⁶ The very nature of placebos means that they do not deliver an objective and consistent level of psychological and therapeutic benefit; it is all relative to the patient’s perception of their problem.¹⁴⁷

This finding also makes intuitive sense when considering the placebo methodology approach to punishment. Public support for mass incarceration policies was highest when the “disease” of crime had the most crippling impacts on public fear. Data shows that public support of harsh tough-on-crime policies was highest from the 1970s through the 1990s but has declined as of the late 2000s.¹⁴⁸ Criminologist Lisa Miller has documented this by studying public perception of crime and concluded that politicians’ ability to manipulate public perception of crime for political gain is highest when violent crime rates are high; this power of perception sharply declines when violent crime rates are lower.¹⁴⁹ To simplify, the public enjoys a higher positive reaction to the placebo treatment of mass incarceration when its fear of crime is at its highest. As the disease subsides, so does the effectiveness of the placebo.

Second, placebos also share in the law of diminishing returns. This is described as a “placebo sag” in the medical literature to indicate that there is a danger of treatment complacency.¹⁵⁰ Although patients may receive tremendous therapeutic benefit from Placebo A, the benefit wanes over time as patient perceptions of what they believe to be an efficacious treatment continues to decline. It is an understandable psychological cycle if a patient perceives Placebo A as not having the same effect as it did a month ago; thus, their future expectations based on their own experience contribute to the sag. Continuing to prescribe Placebo A will not deceive patients forever—or society for that matter.

The support for mass incarceration has also started to sag. Indeed, this goes a long way in explaining recent movements for criminal justice reform;¹⁵¹ after over thirty years of mass incarceration policies, the public is starting to realize that the placebo is losing some of its luster. There has been a steady drumbeat toward reform, but this must be tempered with continued fluctuation in public perception of crime. When the public is confronted with political and media messaging that suggests a spike in crime, public support for harsh criminal punishments returns in certain segments of the social body.¹⁵² This ever-changing landscape of public perception—and the powerful harbingers of doom that continue to press these “fear” buttons—is best understood as a placebo method of controlling public perception to maximize political gain.

Finally, perhaps the most consequential aspect of placebo treatments is that placebos can indirectly have a negative impact on a patient’s health by giving them a false sense of healing. When a patient takes a placebo treatment, three things can happen regarding the patient’s actual physical health. First, the placebo makes the patient feel better, which has a positive impact on the body’s ability to physiologically fight the disease and the patient actually gets better. Second, the placebo has some effect on the patient’s feelings but has no impact on the body; in this scenario, the disease is allowed to run its natural course and may result in the patient’s natural immune system fighting off the disease and the patient improving. Third, take the same scenario, but the disease runs its natural course, resulting in the patient getting worse.¹⁵³ As a result, placebos can indeed be dangerous depending on the seriousness of the affliction. All the while, the patient believes they are receiving an efficacious treatment and forgoes seeking other treatments that might be more effective.

This third scenario has important ramifications for the status quo and how we chart future treatments for the social problem of crime. If we are indeed in an era in which mass incarceration has a criminogenic effect,¹⁵⁴ then the placebo is truly lulling society into a false sense of feeling better. Because mass incarceration policies operate in the modern era primarily as a placebo, this comes at the expense of the disease of crime being permitted to run its natural course and make us all worse off than we would otherwise be under a different punishment regime.

III. Socio-Medical Ethics and Justifications

The study, theory, and practice of punishment can benefit from the same reflection that placebos have sparked in medicine, but the synergies between these fields still spark questions of ethics and justifications. This Part builds on this theme by applying considerations of socio-medical ethics to frame and answer whether placebos in the punishment sphere can be justified. Like medicine, these answers are nuanced and context specific.¹⁵⁵ There are indeed a number of different ethical justifications to consider, but this Part focuses on the issues that carry the most insight for future discussion inside the punishment literature. This Part also focuses on perhaps the most important question of punishment theory and answers in the negative: Is punishment justified under the placebo methodology?

Section III.A considers perhaps the most important question in the placebo methodology, which is the harm principle of punishment when considered against the “do no harm” principle of medicine. These different approaches are important when considering the harm and social costs that punishment wreaks across entire communities. Section III.B explores the important ethical differences between the doctor-patient and politician-constituent power dynamics. Benevolent deception and medical expertise are at the heart of the doctor-patient placebo treatment schedule, but such benevolence and policy expertise are missing from the politician-constituent power dynamic. Section III.C discusses the ethics of experimentation with placebo research toward finding efficacious treatments. This contributes to how we might view the dark past of experimenting with harsh punishments and informs us towards a more ethical future. Section III.D covers the economics of placebos and their continued popularity and use in the medical field. Just as economic markets have a way of shaping how placebos are prescribed by doctors and perceived by patients, so too can the economics of punishment shape our social and cultural understandings in ways that can lead toward a different punishment regime. In turn, each vignette also considers policy solutions that seek to remedy the ethical and practical problems of punishment placebos and their overreliance on controlling and even manipulating public perception.

The discussion and solutions proposed throughout each Section are not magical or mystical cures that can solve all of the many problems and social harms of mass incarceration. These realities and strategies of punishment reform—which are unique to placebo understandings of punishment—are meant to mitigate and not propagate. The most important concern is whether these discussions and solutions themselves become placebos, proposed and advocated by a school of scholars as a way of assuring and placating more revolutionary thinkers away from pursuing transformational work.¹⁵⁶ Getting closer to equitable justice is worthwhile, and trading among lesser evils is often the difficult choice scholars and policymakers must pursue to achieve incremental progress that is transformative in scope.¹⁵⁷

A. Placebos as Harm

Although this Article focuses on the synergies between the medical field of placebos and the policy design of mass incarceration, there are important differences that shed light on the theoretical and practical framing of punishment. Perhaps the biggest shortcoming of the placebo methodology of punishment is the difference between how these fields view harm.¹⁵⁸ By recognizing these shortcomings, this Section seeks to further refine and tailor the placebo methodology to the specific attributes of the punishment context.

The medical field’s approach to “do no harm” is an important foundational ethic upon which the entire institution is built. This principle traces back to the Hippocratic Oath¹⁵⁹ and undergirds the purpose of the entire medical field. This is of prime importance when applied to placebo treatments. Placebos, by definition, must be either inert or have active ingredients that will not harm the patient.¹⁶⁰ At best, they may help the patient; at worst, they will do no harm.¹⁶¹

The opposite is true of the punishment field, which is specifically designed to impose harm on the criminal offender.¹⁶² This harm has come in many forms throughout history,¹⁶³ and modern criminal punishment continues to take away some aspect of the offender’s liberty by exerting government control over the offender’s body, including incarceration, e-carceration, and parole.¹⁶⁴ Capital punishment, of course, imposes the ultimate harm upon the offender by ending their life. This is not merely an accidental byproduct; it is the intended purpose of punishment.

This requires at least two analyses that can be bifurcated into theoretical harm and practical harm, both of which are important to answer whether these harms of punishment might be justified under the placebo methodology. On the theoretical side, we must remember the conceptual framework outlined in Part I. If society is like the body, and crime is like a disease, then treating the disease benefits the body at the expense of the disease. If punishment were effective, it would serve the same purpose as medicine by treating and getting rid of the disease of crime to the benefit of society. This becomes more problematic when this social disease is being directly caused by humans in society. As discussed above, this need not require inhumane treatment to punish and/or rehabilitate them. Thus, punishment is intended to impose some level of accountability on the offender just as medicine is intended to treat infirmities and the body of society benefits.

Under this theoretical treatment, the placebo policies of punishment become problematic because punishment is used to deliver harm to offenders regardless of any actual benefit to society. The punishment placebo would not merely be inert as in the medical context but would be delivering harm to a large segment of society—primarily poor people of color¹⁶⁵—for the mere psychological or therapeutic benefit of everybody else and for the political benefit of the powerful. Delivering this level of theoretical harm would not be justified under utilitarian or deontological justifications. The utilitarian might be persuaded, but ultimately must consider the costs and benefits of the policy to understand the greater good. Here, placebo policies are pitting the minimal benefits of manipulating public perception against the social costs of imposing harm on millions of people and tens of millions of families.¹⁶⁶ The level of harm hardly seems justified according to the minimal benefits and the perverse political incentives behind it. Kantian deontologists would also oppose a placebo justification, since this school of thought rejects using a person as some means to achieve a broader social goal.¹⁶⁷ But modern retributivists may still justify a placebo punishment if it indeed makes society feel that moral justice has been paid to the offender.¹⁶⁸

On the practical side, the placebo of punishment policies results in actual harm being visited upon entire communities that face the brunt of mass incarceration, which adds further consideration to the utilitarian balancing above. It is not enough to recognize the tremendous harm done to the individual offender during and after their time incarcerated, but these harms extend to their communities as underappreciated externalities.

Mass incarceration policies have devastated economic growth in these communities.¹⁶⁹ Working-age men and boys are often the most targeted due to their involvement with criminal behavior; when these communities are hollowed by the incarceration of these men, small and large businesses alike are less likely to invest and survive in these communities.¹⁷⁰ And even when incarcerated persons are on parole or get out of prison, they face an uphill battle when finding a job and are often paid less than their non-offender competition.¹⁷¹

Social networks and family formation also suffer objectively negative outcomes from mass incarceration. In heterosexual relationships, it becomes harder for women to find suitable mates if many potential options are incarcerated or have difficulty assimilating back into society after being incarcerated.¹⁷² Incarceration also leads to the breakdown of strong family dynamics, since so many incarcerated persons are held in places that are geographically far away and thus prevent in-person visits from their family. In addition, the exploitative prison-phone industry creates cost prohibitive conditions for many poor families to stay in touch over the phone.¹⁷³ Also, many incarcerated persons are parents, which has negative behavioral and educational impacts on their children who grow up without them.¹⁷⁴

There are also tremendous negative political impacts on these communities. Voting-age incarcerated persons are not able to vote during their incarceration. In some jurisdictions, these persons are permanently disenfranchised even after their incarceration.¹⁷⁵ Not only does this have measurable impact on elections, but it also contributes to the individual offender’s sense of self as a nonpolitical actor. Political scientists and sociologists have shown how affected communities have developed a sense of isolationism from civic discourse.¹⁷⁶ This impacts the politician-constituent relationship and has served to undermine the legitimacy of the criminal legal system as a whole in these communities.¹⁷⁷ Further, as explained above, mass incarceration can have a criminogenic effect if it contributes to community perceptions of illegitimacy that following the rule of law has little benefit.¹⁷⁸

This short summary of actual harm caused by the placebo of mass incarceration policies cannot be justified under any view other than those that recognize mass incarceration’s intent to maintain political power and use that power to subjugate communities.¹⁷⁹ If the goal is to make the streets safer, that goal has failed. If the goal is to maintain existing power dynamics, then placebos in medical and punishment contexts are quite effective at controlling perceptions of crime and disease and cementing the doctor and politician as the conduit through which things will be perceived as getting “better.”

Perhaps Vincent Chiao said it best: “To rely on criminal punishment solely . . . to make other people feel safer, even when doing so does not make them actually safer” is not justified because it is hard to see how these people’s subjective feelings “could be sufficiently important to justify imposing such serious costs on others.”¹⁸⁰

B. Deception Versus Consent

Placebos also introduce the ethical dilemma in medical treatment of utilitarian notions of deception, which is all too relevant to the punishment policies of the modern era. In the broader social context, lying, fraud, and deception are viewed as unacceptable social behaviors that can emotionally hurt and financially injure a victim.¹⁸¹ But like most social mores, there are exceptions to this general rule that might be applicable to the placebo punishment context. For instance, intentionally lying might be justified if it produces beneficial results and emotions or even serves as a lesser evil to avoid more harm.¹⁸² Indeed, we paternalistically deceive our children;¹⁸³ we might sugarcoat the truth to shield the feelings of a spouse or loved one; and even in the cold world of legal ethics, it is ethical to intentionally withhold information from a client for their benefit.¹⁸⁴

There are at least three ethical considerations that, when considered together, might be used to justify placebo treatments in the medical field that are found lacking in the context of punishment policies. The first considers the expertise of the person in power. In the medical field, placebo practitioners are medical experts who can correctly dose and administer placebos as a treatment specialized for each individual patient.¹⁸⁵ Doctors prescribe placebos because they often follow the science showing how effective they are in assuaging subjective patient ailments such as pain, depression, and other complaints.¹⁸⁶ Indeed, it is this very expertise, built on years of experience and advanced studies, that supports any potential deception. The only reason the doctor knows such a treatment will work is because they have likely used these placebos in the past to provide therapeutic treatment and have tracked the progress of past patients in conjunction with studying the scientific literature.

To illustrate the importance of expertise and how it implicates trust, contrast the following situations: first, a doctor prescribes a placebo to a patient; second, a person pretending to be a doctor prescribes a placebo to a patient. Deception is taking place in both scenarios, but most would admit to being more comfortable with the former. If a doctor prescribes a placebo, there is a certain level of trust on the part of the patient toward the doctor that the doctor knows what they are doing; a patient may not like the doctor’s decision to prescribe a placebo, but many would feel comfortable trusting the doctor’s experience. In the latter situation, the ultimate medical result might be the same, but many would still be uncomfortable since the fake doctor has no expertise whatsoever. The patient received a placebo in both situations but would no longer have the same trust and understanding of the treatment in the hands of a fraud. Even if the patient experienced a positive placebo effect in both situations, the expertise and trust in the doctor in the first situation seems more justified than the deception and lack of expertise in the second situation.

In the punishment context, there is a much looser sense of expertise from our legislators and executive actors who are prescribing and delivering the treatment of punishment and mass incarceration to society.¹⁸⁷ Politicians are not experts and many are not even former practitioners of criminal policy and punishment.¹⁸⁸ They are lawyers, businesspeople, career public servants, and the like that bring generalist viewpoints to a host of different issues. Rachel Barkow opens her book Prisoners of Politics with the stark statement that “[w]e do not rely on experts or use studies and rational assessment to minimize crime” but instead base criminal policy “on emotions and the gut reactions of laypeople.”¹⁸⁹ This is a far cry from nearly every other consequential policy area, including public health, the environment, financial institutions, and other complex social issues.¹⁹⁰ Instead, political incentives, penal populism, and fear of the “other” all rule supreme in crime policy.¹⁹¹

Practitioners like police and prosecutors are a bit more mixed. There are still many who subscribe to outdated and disproved methods such as the broken-windows theory,¹⁹² predictive policing,¹⁹³ overcharging and stacking,¹⁹⁴ and pushing for harsh sentences for incapacitation purposes. However, there are several more progressive practitioners who are challenging the old guard and trying to use emerging data to facilitate more effective policies.¹⁹⁵ This is the double-edged sword of expertise, because both of these camps can be considered to be “experts” due to their level of practical experience. Just like doctors who prescribe a large number of placebos to patients with the hope that it will have a placebo effect, these practitioners on the ground are prescribing punishment policies that they hope will have some effect on public safety, whether directly or indirectly. And we the public have some sense of trust in these practitioners, in part, because of their expertise.¹⁹⁶ The takeaway from this analysis is that there can be no placebo-like justification for non-expert legislators who enact criminal statutes, but there may be some argument that the expertise of police and prosecutors should be given some weight.

The second ethical consideration that might justify deception is the intent of the person in power, which also highlights stark differences between the medical and punishment fields. Many doctors prescribe placebos out of benevolent care only when they view it to be in the best interests of the patient.¹⁹⁷ This gestures toward the “classical paternalistic paradigm that dominated traditional medicine.”¹⁹⁸ Like parents who benevolently guide, deceive, and withhold information from their children because of large gaps in information, intellectual ability, and emotional stability, the traditional practice of medicine justified treatments under a paternalistic view of patients.¹⁹⁹ Not only does this ethical justification substantiate the earlier requirements of expertise, but it also highlights the necessary selfless intent of doctors to justify deception. Parents deceive their children most often for the sole benefit of the child, and while there are indeed some that might use such deception for their own parental gain, this is often not accepted as best practice. Similarly, doctors may be justified in using benevolent deception if the primary purpose is the sole benefit of the patient. As argued above, this is a complex question in which a doctor (or politician) must consider the full range of costs and benefits of deception. But the ultimate takeaway is that deception is partly justified by benevolent and selfless intent.

Using this methodology to analyze politicians and their role in punishment leaves much to be desired. In a perfect world, politicians would be public servants who seek to serve their constituents’ best interests, but political theory has long disproved this romanticized ideal.²⁰⁰ Lawmakers are not bound by a comparable code of medical ethics where constituent interests are placed at the forefront.²⁰¹ They do indeed seek to serve their constituents but are also incentivized into doing what is necessary to maintain their power.²⁰² There may be an argument that politicians believe they are serving society by assuaging fears with placebo punishment policies if they believe that fixing the actual crime rate is not as important to public health as controlling perceptions of crime. However, as argued above, there are simply too many self-interested incentives involved in the tough-on-crime movement from those wishing to maintain their power. The lies that politicians maintain about mass incarceration, the manipulation of public fear, and the withholding of the truth from the public cannot be justified under the medical ethics of benevolence,²⁰³ but should be characterized as maleficent and at least partially self-interested deception that wreaks havoc in the form of underappreciated social costs.

Yet there is some nuance to consider regarding intent among lawmakers, police, prosecutors, and others who prescribe and deliver the placebo treatment of punishment. As in the substantive criminal law, we assign blameworthiness according to a person’s level of intent for their wrongdoing. The highest level of culpability is committing an act with purpose, meaning that it was the person’s conscious desire to commit the act or to procure the desired result of the crime.²⁰⁴ Next comes knowledge, which describes a person who has near certainty that their action will procure the result of the crime.²⁰⁵ Then there is recklessness and negligence, which capture situations in which a person knows or should have known that their actions will procure a certain result.²⁰⁶ There are indeed actors in the criminal legal system who are purposive or at least have sufficient knowledge that these punishment policies are ineffective but nevertheless have some placebo effects towards public safety. These are the most culpable actors in the mass incarceration crisis. But there are others who are less culpable but still responsible for contributing to the crisis. These decisionmakers might honestly believe the status quo is an effective system that they seek to propagate and expand. At best, these lawmakers, law enforcement officials, and prosecutors can be said to be reckless or even negligent because they are consciously disregarding the danger of these policies or really do not perceive any dangerousness but nevertheless should have known the dangerousness of these policies. Given the amount of scholarship, the accessibility of experts, and the continued deterioration of the criminal legal system, these decisionmakers are at best negligent, and at worst purposive, in their culpability of the mass incarceration crisis.

The third ethical consideration that might justify deception in the use of placebos is the issue of consent. Modern medicine has largely departed from the benevolent paternalism of the past and has been sharply redefined towards a progressive ideal that fosters partnership between doctor and patient.²⁰⁷ This type of dynamic has restructured the entire culture of medical treatment, in which doctors are resources of information that a patient can consult; by explaining complex medical information and treatments to their patients, doctors can partner with their patients and ultimately allow the patient to make the final decision on what treatment they receive. Thus, the modern ethics of prescribing placebos is complicated by the issue of consent.

This ethical dynamic is resolved through a fascinating aspect of placebo treatments, namely the consent of self-deception. Patients may desire to gain the benefits of placebos or other unverified alternative medical treatments for the sake of achieving a larger health goal.²⁰⁸ Perhaps an active medication is known to have side effects, whereas a placebo might deliver similar therapeutic relief without the side effects. Or perhaps active medication is cost-prohibitive to patients whereas placebos are more cost-effective for the relative benefit the patient receives.²⁰⁹ Medical ethicists have considered these possibilities and ultimately come out in favor of patient discretion; in other words, patients should have the power and control over their treatment to give doctors the green light to deceive them.²¹⁰ Under such treatment plans, the patient will never know which treatment is a placebo or when the deception is coming. That way, they can still enjoy the ignorant bliss of placebo benefits. This adds yet another wrinkle in an already complicated ethical space. As opposed to the principle of informed consent, in which the patient must consent to each separate treatment, a doctor-patient relationship may also be formed on the basis of general consent under which the patient consents to the doctor or the overall treatment plan.²¹¹ This obviates the need to consent to each individual treatment and instead gives the patient the power to consent to the doctor and all of their subsequent methods.²¹² If patients want to be deceived, and give consent to be deceived,²¹³ placebos might also be justified under a consensual doctor-patient relationship.

The self-deception model of consent is an interesting consideration of collective cognitive dissonance and might also have some explanatory value in placebo punishment policies. Let us first consider that most Americans want criminal justice reform.²¹⁴ There may indeed be much disagreement among these constituents about what such reform would look like, but there is a growing dissatisfaction. But like most political opinions, these Americans are looking for a type of general consent as opposed to informed consent. These constituents simply want the problem to get better and are not necessarily invested in each reform proposal that might come to the table. This is our system of republican government: we vote in politicians, thereby giving some form of majoritarian consent, and we expect them to fix the problems we have elected them to fix. Whether it be sentencing reform, decriminalization of drug crimes, or defunding the carceral state and reinvesting in other social programs, the average American voter is not concerned with the specifics of how politicians address these problems.

The public has accepted the diagnosis of the social problem of crime, and they are giving general consent to the overall treatment plan of mass incarceration with little care or concern about the overall placebo of the treatment. This is quite different from saying that the public wants to be deceived, but the political system allows for some consent for elected officials to deceive us, even after the public collectively understands that the criminal legal system is broken.²¹⁵ A political theory of self-deception, as realized through the placebo methodology, might be the strongest case that justifies politicians intentionally deceiving the public through mass incarceration and punishment placebos. If the public implicitly agrees to deception, politicians should be allowed to deceive.

Most considerations in this Section have failed to justify the use of placebo policies in the punishment context, and these medical ethical concerns can also inform some future policy safeguards. Whatever the next tectonic shift in carceral policies may bring, we must be aware of the placebo nature and politics of these policies. Politicians will support what makes voters feel better; for the Left, this may look like progressive policies that make them feel like criminal justice is no longer targeting certain communities; for the Right, this may look like less costly and more efficient policies that make them feel safer and more fiscally responsible.²¹⁶ There is indeed political will to make a change, as Red and Blue states across the country have experimented with new punishment policies,²¹⁷ presidential administrations from both parties have pushed through reformist legislation,²¹⁸ and grassroots organizations have become part of the mainstream decarceration movement.²¹⁹ But even with this bipartisan support to change something about the system, will the resulting change be yet another placebo? The next generation must not make the same mistakes of our past by settling for yet another placebo punishment policy.

There are no easy answers to what appears to be an insurmountable social and cultural problem based on political incentives and unethical behavior. An informed consent punishment model would be an interesting thought experiment, requiring partnership and active participation between politicians and constituents before any new criminal law, punishment, or reform was adopted. However, such an informed consent model would be practically impossible and would also theoretically fail to address the problems of punishment placebos. Putting so much power in the hands of uninformed constituents carries the risk of even more criminal legal policy falling prey to fear-based penal populism.²²⁰ Providing the public with more information, facts, studies, statistics, and so forth in an effort to educate the masses through public service announcements is unlikely to decouple the social and cultural feelings of punishment and its connection to safety. Using direct voter ballot initiatives is another interesting proposal because they have had success in legalizing marijuana and banning forced prison labor,²²¹ but have also maintained capital punishment²²² and a number of harsh sentencing laws.²²³ There is simply no safeguard for people’s fear and none for politicians’ penchant for exploiting it.

This Section has leaned heavily into diagnoses and has been light on effectual treatments. The ethics of social deception of placebo punishment policies cannot be justified through the same traditional medical lens of paternalism nor the benevolent power that doctors use to maintain public health in the community. Neither can placebo punishment policies be fully justified through modern medical ethics of informed consent, but the concept of general consent and self-deception paints a dismal picture of the American public’s apathy toward specific involvement in criminal justice. This leaves hope that further examination of placebo ethics can lead to some policy interventions, especially when considering the infrastructure of expertise below.

C. Experimentation Ethics

The placebo ethics of scientific experimentation introduces another tool that shifts the discussion of punishment theory and mass incarceration. The medical field often uses placebo trials as a methodology for finding treatments that are more effective than their predecessors, which justifies the use of the placebos toward the gain of medical knowledge. This Section uses this ethical justification of placebos to explore the unjustified experimentation of punishment policies and mass incarceration.

Starting with the medical context, double-blind placebo studies are the gold standard in the experimental setting to determine the efficacy of pharmaceutical drugs.²²⁴ There are at least two groups²²⁵ of consenting patients,²²⁶ both of whom are suffering from a disease or ailment that serves as the subject of the treatment. The first blind describes the patients who are unaware of what treatment they are receiving. The first group is given the drug being tested by the trial, while the second group is given a placebo.²²⁷ The second blind describes the researchers themselves. To avoid the power, bias, and favoritism of researchers who are administering the treatments,²²⁸ the researchers are also blind to which group is getting the drug versus placebo treatments. Thus, the efficacy of the drug being tested is the positive difference between the medical outcomes of the drug group and the placebo group. If both the drug group and placebo group enjoy physical improvements, isolating the positive impact of the placebo is paramount to determining the actual effectiveness of the drug apart from any placebo effects.²²⁹

The utilitarian outcomes of experimenting to develop more effective medicines justify the necessary deception of the placebo groups along the way. If the placebo group knew they were getting the placebo and the drug group knew they were getting the active drug, the positive placebo effects would be lost and would jeopardize the utility of the study.²³⁰

Medical ethicists have raised concerns based on deontological grounds of the duty of doctors to always provide the best available care.²³¹ This goes past the Hippocratic Oath to do no harm and requires doctors to provide the best care possible based on the inherent worth of a human life and its connection to individual health. These ethicists have criticized placebo trials as exploitative and have argued that it is inherently unethical to evaluate new treatments when there are already proven treatments available.²³²

For example, if a research trial is trying to find the next generation of treatments for a non-deadly disease, such as depression, a placebo trial may be organized. The new drug to be tested is X, even though Y is already on the market and available to patients. Y has an efficacy rating of one, which is quite effective at helping depression patients. However, the placebo group will not receive any effective treatment for their depression. Thus, their depression may get better or worse based on the placebo effect or the natural course of the disease. The drug group receiving X, on the other hand, sees a great improvement, measured at an efficacy rating of two. This result is traditionally seen as a success in medical science because X will benefit countless future depression patients, but it came at the expense of the placebo group who all the while could have gotten better if they had been prescribed Y.

In the punishment placebo context, there are many lessons to learn from medicine’s more developed and sophisticated rules of ethics. Placebo methodologies have long been used in sociological and policy studies to determine the efficacy of criminal law and policy when compared to the status quo or an inert placebo policy.²³³ These types of experiments and analyses have also been a hallmark of Our Federalism.²³⁴ The Brandeisian ideal of state laboratories has yielded new innovations in punishment practice but has often yielded harsher and more ineffective punishments as a result of the fear and penal populism that has taken hold since the tough-on-crime era.²³⁵ Three strikes laws, ending parole for certain offenses, and even the very development of prisons as an institution, were all policies started and championed by various states until they were more widely adopted.²³⁶ And while states have been experimenting with many decarceration policies,²³⁷ the norm still rests on the harsh side of the scale.

Given the placebo nature of mass incarceration policies, they are difficult to justify unless the punishment system is becoming more efficacious, like the ethics in the medical field. States will continue to experiment with various progressive and harsh punishment policies, and they do so in part to align these policies with the preferences of their constituency.²³⁸ Thus, if Jurisdiction A continues with the status quo of mass incarceration policies and Jurisdiction B decides to experiment with bail reform, lower sentences, or drug courts, there would be a value to criminology and punishment theory if the delta between these similarly situated jurisdictions could be measured. Jurisdiction B might prove that these new policies are ineffective, or they might create support for a new paradigm in punishment, as has been the case throughout federalism’s state experimentation in criminal law.

For the reform-minded utilitarian, mass incarceration is a necessary part of the experiment to prove to politicians and bureaucrats around the country that progressive punishment reform is more efficacious than the current placebo. The delta between the placebo of mass incarceration policies and the growing number of programs that have been shown to reduce first-time offenses and recidivism²³⁹ is a powerful policy tool that justifies change. This is true even though it comes at the cost measured in years of human lives. But while such reformers use metrics to prove their efficacy points, mass incarceration as a placebo is allowed to remain across the country, and the disease of crime is allowed to fester.

For the abolitionist-minded deontologist, there are two groups of people to consider. The first is the communities in Jurisdiction A who are not benefiting from the placebo of mass incarceration policies, although they may indeed enjoy psychological or therapeutic benefit.²⁴⁰ The second group is the millions of people who are suffering because of the harm and social costs of mass incarceration. These people did not consent to be a part of this grand thought experiment but have been caught in the middle of this ethical dilemma and human rights crisis.²⁴¹

The moral supremacy of the deontological and abolitionist arguments cannot be denied, but the uncomfortable truth is that utilitarians hold the pragmatic high ground.²⁴² Experimentation is at the heart of placebo and punishment policy alike. It is a double-edged sword that can bring about tremendous positive change, but it can also be captured by political incentives and penal populism. Consequently, the only utilitarian justification for continuing to use mass incarceration as a placebo would be to wean ourselves off from relying on placebos and begin rigorous analysis that will lead to improved public safety.

The ethics of using placebos in experimentation provides a unique starting point to discuss potential ways to mitigate the harm and justify the practices of placebos in the punishment context. Just as the government plays a key regulatory role in the administration of new drugs, this process might have some value in approving the next generation of punishment policies. Drugs often undergo a rigorous regulatory process that can last years before they are approved for doctors to prescribe, and placebo human trials are merely a step along that long journey.²⁴³

What this experimentation ethic requires is an FDA-like project that gives experts the space, the time, and the resources to approve, reject, or reform new and existing punishment policies. This FDA model would hand over full regulatory power to expert agencies and commissions. The legislature would no longer be in control because they simply do not have the expertise required and the stakes are too high to trust generalists.²⁴⁴ Just as Congress does not have much say in whether Drug A is both efficacious and safe for the market, legislatures would not have much say in whether getting rid of mandatory minimums, for example, would be efficacious and safe for the public.

As Barkow has suggested, there is already an infrastructure of expertise that can be readily tapped for such a transition. Sentencing commissions exist across the country that serve advisory roles to federal and state legislatures; although quite different from the FDA, they are comprised of expert scholars, advocates, and judges.²⁴⁵ While existing commissions have succeeded in recommending reforms and pushing back against penal populist policies, most have little teeth and their policy recommendations can often be ignored if they do not line up with the political incentives ruling their respective legislatures.²⁴⁶ Consequently, there would only need to be a formal legislative delegation and other adjustments to ensure these existing commissions have the necessary power to assume regulatory control over punishment policies.

One of the flaws of this FDA punishment model, however, is that the marketplace of regulating food and drugs is vastly different from regulating criminal acts in material ways. Whereas the FDA is a government agency that regulates private companies, a government agency that regulates other government actors usually takes the form of checks and balances. Since any proposed expert agency of punishment policies would be the progenitor of new policies, there would need to be sufficient checks against these new policies. Thus, if the expert agency adopts a new punishment regulation, the courts would still have the ability to strike it down as a check against the administrative state. Executives would still have the discretion to fire appointees, and the legislature would still be able to impeach such appointees.

This author has also contemplated that such punishment agencies could work in the federalism context, whereby the federal government agency serves as a watchdog over state punishment practices.²⁴⁷ Since 94% of criminal convictions²⁴⁸ and around 83% of incarcerated persons are handled by the states,²⁴⁹ most of the harm of placebo punishment policies are being felt at the state level. This federalism approach would borrow less from the FDA and more from the DOJ’s Civil Rights Division and the preclearance process of the Voting Rights Act.²⁵⁰ The preclearance process gave the federal government power to approve or reject new voting laws before they went into effect in certain states and counties to mitigate voting discrimination. The DOJ could indeed perform similar watchdog functions over various state punishment policies, and it might also have the benefit of creating some uniform accountability for both carceral and non-carceral punishments.²⁵¹ Admittedly, this structure would lack the power of the Voting Rights Act to prevent policies from going into effect. However, the DOJ and the federal government could more easily tie federal funding to this punishment approval process. For instance, if Louisiana wanted to increase penalties for drug offenses, they would maintain their sovereignty to do so. However, if the DOJ disapproved of this policy, it would be well within its purview to rescind federal funding for criminal legal projects,²⁵² and it could partner with other federal agencies to discuss their funding options as well.²⁵³

Handing over so much power to agencies filled with experts is not without its own concerns. Many scholars have expressed reservations about shifting power to experts in ways that might not be productive. Megan Stevenson’s study of more than two dozen meta-analyses led her to conclude that there is very little evidence from randomized control trials that many of the rehabilitation reformist interventions are effective at reducing recidivism or first-time offenses.²⁵⁴ The reliance on “evidence-based reform” might also give people a false sense of efficacy, reliability, and neutrality when discretion is still being used to draw lines, make judgment calls, and enshrine perverse incentives.²⁵⁵ Even experts can be influenced by their own moral and social views on punishment, and these views will often impact which experts are selected by the government to serve on these commissions. Therefore, there is potential for political capture of such agencies, as we see in the administrative state quite commonly.²⁵⁶ Agencies and commissions can be vulnerable to corporate capture, especially if lobbyists or other interests seek to influence commission members by employing them as consultants outside of their government duties. These are important considerations that require careful institutional design choices to mitigate such influences.

The takeaway of this Section is that a placebo punishment methodology enlightens the discussion of ethical experimentation and requires careful consideration of the utilitarian benefits and social costs. Using the mass incarceration placebo is unfortunately a necessary evil to pave a way forward, as justified by creating better consequentialist punishment outcomes. And further, allowing experts into the experimentation process is key to mitigate the past generation of perverse political incentives and penal populism. Allowing experts to conduct these experiments and approve the experiments of others would begin to yield the type of results to turn back the tide of mass incarceration. And while the data, studies, and policies of these experts may not alone be enough to change the social and cultural sentiments towards punishment,²⁵⁷ they can get much closer to punishment policies that effectively make us safer.

D. Placebo Economics

The placebo ethics of economic incentives holds further insight for the marketplace of placebo punishment policies. Ethicists criticize the use of placebos on economic grounds because it requires a patient to pay for a product that is physiologically inert. Placebos are tantamount to snake oil, even if sold or prescribed benevolently by the doctor acting as a salesman. The same ethical criticism should be made of placebo punishment policies and the larger economic debates that have the potential of influencing the very social and cultural meanings necessary to change public views on punishment.

The economic aspect of placebos may be important to shaping the patient’s subjective expectations and perceptions of the treatment. When a doctor prescribes a treatment or drug, this usually necessitates some pecuniary commitment of the patient to go the pharmacy and buy the drug or over-the-counter product.²⁵⁸ Imposing this economic cost may be necessary to the placebo’s impact because a patient would perceive an effective drug to require such out-of-pocket expense. This imposes costs on patients and insurance companies for products that carry little physical benefit but nevertheless provide some psychological and therapeutic benefit. Thus, patients and insurance companies are required to pay for products that are designed to deceive the patient into feeling better, as opposed to a physiologically efficacious treatment.²⁵⁹

In addition to the doctor-patient relationship, there is also a robust, direct-to-consumer placebo market of supplements, vitamins, and other remedies that claim to contribute to health benefits without any scientific proof.²⁶⁰ In fact, many of these so-called health supplements have been scientifically debunked, and yet consumers still flock to this marketplace—which sells substances that are not regulated by the FDA—to the tune of $40 billion every year.²⁶¹ Thus, these alternative treatments that have no scientific backing still make up a “significant segment of the healthcare industry.”²⁶²

Economic incentives also complicate the ethics of the medical industry. Doctors can be incentivized by personal economic gain, receiving stipends, cash bonuses, expensive trips and a whole host of other extra benefits based on their prescriptions. The underworld of pharmaceutical companies paying doctors to increase prescriptions has been uncovered to great public outcry.²⁶³ Even the government could not turn a blind eye to these perverse medical incentives and has been active in investigating and increasing regulations to mitigate these harms.²⁶⁴ This is relevant to the current discussion because, according to some experts, these personal incentives exist for doctors to prescribe drugs they know to be placebos.²⁶⁵

Applying these economic ethical concerns to the placebo punishment sphere, taxpayers should not be expected to pay the expensive costs for a punishment regime that is both inefficient and not efficacious. The prison system itself costs taxpayers approximately $80 billion annually according to conservative estimates and as much as $182 billion annually according to more liberal estimates.²⁶⁶ During the height of the mass incarceration era, state and local expenditures for the incarceration system rose by 946%, outpacing the very social programs better equipped to handle rising crime rates such as education, healthcare, and public welfare.²⁶⁷ And this is just a fraction of the $305 billion that conservatively estimates the total cost of the criminal legal system.²⁶⁸ This is quite the sum for government services that do not effectively deliver public safety benefits.

Politicians are also incentivized to support the punishment marketplace through the PIC. The broader PIC supports a multi-billion-dollar industry that includes a host of private and non-profit companies outside of the prisons’ walls.²⁶⁹ Private prisons alone are estimated to bring in $4 billion in profit,²⁷⁰ and incarcerated people who are forced to work at slave wages produce $11 billion in goods and services.²⁷¹ This is a small sample of the larger PIC, which supports the carceral industry by providing soap, clothes, food, surveillance, weapons, construction, and other goods and services that uphold the status quo. Although not nearly as scandalous as private companies making direct payments to doctors, lobby organizations and unions for the PIC contribute to political campaigns in ways that incentivize politicians, benefit private companies, and incentivize locking up and surveilling more and more people.²⁷²

Placebo ethics questions the economic practice of requiring people to pay for a product that is known to be ineffective and scrutinizes the perverse economic incentives at play. But looking forward, a focus on inefficient or ineffective economic practices can also play a role in changing the very social behavior and cultural understandings necessary for a new punishment paradigm.

The last generational shift in punishment was based on this very placebo ethic, but in slightly different terms. The dominant rehabilitative model was believed by scholars and politicians of the time to be far too ineffective for the relative economic costs. This logic took hold in the 1960s and 1970s, when the federal government spent billions of dollars to improve existing prisons and jails to lower recidivism,²⁷³ all just to see the crime rate rise.²⁷⁴ Politicians and taxpayers alike lost their logical patience to see the long-term positive impacts that rehabilitative models were having²⁷⁵ and instead turned to fear and emotion by favoring harsher sentencing. This paved the way for the implementation of mass incarceration policies during Reagan’s 1980s²⁷⁶ and Clinton’s 1990s.²⁷⁷ It took nearly twenty years of frustrations (1960s and 70s) to boil into a generational shift in policies over the next twenty years (1980s and 1990s).

We have started to see this same multi-decade cycle reflected in the current twenty year frustration period in the 2000s and 2010s. Fiscal conservatives and libertarians—who might have traditionally been the staunchest supporters of law-and-order politics—have started to ring the alarm bells that mass incarceration policies are simply too expensive for the relatively small social benefits.²⁷⁸ Perhaps the surest bet in decarceration over the past fifteen years is that economic downturn has yielded the most significant reforms. The smart-on-crime movement, which boasted more efficient and effective punishment policies, started in the early 2010s as it was spurred by state budgetary cost concerns coming out of the Great Recession of 2008.²⁷⁹ The country’s recent battle with COVID-19 also sparked increased debate about penal spending when states struggled to balance their budgets given the tremendous negative economic impacts of the pandemic.²⁸⁰

Economics were not the entire story, but they were part of the social and cultural shift of these times. Social and cultural expectations shape a patient’s positive and negative experience with a placebo and so too are we seeing the social and cultural expectations of economics impact how Americans are starting to negatively view the placebo of mass incarceration. There are few things more “American” from a cultural standpoint than demanding to get your money’s worth. And as perceptions of the costs of mass incarceration change,²⁸¹ so too will economics impact our cultural rejection of placebo punishment policies.

The placebo punishment framework and the broader health literature it incorporates not only help us think about these ethical economic problems but also gesture towards unique health-related solutions that can inform punishment reform. One approach would be to regulate the market with economic tools like a “sin tax” of some type. This author and others have previously proposed various methods for increasing the economic costs of incarceration on government actors to disincentivize them from over relying on carceral punishment tools,²⁸² such as imposing a tax on local prosecutors when charging and prosecuting a person and suggesting prison time.²⁸³ These types of sin taxes have been applied across the public health sphere from cigarettes to sugary drinks.²⁸⁴ Passing along these costs onto constituents, such as raising taxes for the express purpose of maintaining the prison population, would also likely change the social and cultural expectations of the mass incarceration placebo and could result in further public outcry for reform.²⁸⁵

Another economic insight from the placebo punishment framework is its focus on effective treatments and diagnoses alike. The crime-as-disease framing diagnoses crime as our social and cultural norms have defined it: as the thing to be focused upon for economic investment in the punishment remedy. However, drug addiction, gun violence, mental health and educational problems, and disparities in economic opportunity are the more accurate diagnoses. It is understandable that if a doctor diagnoses cancer, the medical priority is to immediately address that life-threatening problem; but the secondary treatment should be to do everything possible to prevent the cancer from coming back as part of a preventative medical treatment regimen. While this does not condone the use of placebo punishment policies in the past, we must now focus on economically investing in the right treatments for the right diagnoses. This calls for a multivariate investment in punishment policy into education, health policy, job training, and the “all of the above” approach that reformists have advocated for since the beginning of the mass incarceration era.²⁸⁶ Further, the broader we understand this preventative medicine approach so as to avoid future need for placebos, the more we can rely on a multi-agency funding campaign involving the likes of HHS, HUD, DOE, and a host of other governmental grant and funding partners that can tackle the crime problem.²⁸⁷

These economic interventions are not without critics, but dismantling the placebo punishment policies of mass incarceration is designed to take into account more than just dollars and cents. For instance, Marie Gottschalk has levied a series of criticisms against exclusively focusing on economic cost-benefit analysis to solve the mass incarceration crisis in part because it fails to capture the human rights deprivations of incarceration and only serves to reinforce the neoliberal zeal to further cut costs of the welfare state.²⁸⁸ Just like in the 1970s and 1980s, economics will not be the only factor that leads to a generational shift in punishment policy.²⁸⁹ Neither do these tools of economic accountability and reinvestment seek to hollow out the welfare state; rather, they propose the opposite. By focusing on the right diagnoses, we transform the social and cultural tradition from viewing human offenders as a cancer to viewing the institutional failures of the social welfare state as the disease to be remedied with robust reinvestment.

This Section’s focus on highlighting the ethical concerns of placebo economics adds another analytical tool to the placebo methodology of punishment. It is hard to justify mass incarcerations’ placebo focus on controlling public perception of crime based on the actual price tag for such ineffective policies. But this Section also highlights that economics play an important role in shaping public perception and expectation of punishment policies. The more something costs, the more we expect as a society and the more we resent the waste when the policies do not work. Economics can indeed shape the social and cultural perceptions of our punishment future by imposing interventions that increase costs or that refocus policy on the underlying causes of the crime/disease we seek to prevent.

IV. Beyond Punishment and Placebos

The comparisons, synergies, and differences between the medical use of placebos and legal punishment policies offer numerous insights into how we might think about and approach the biggest problems of mass incarceration, but these placebo analyses also offer several insights across criminal legal policy and society as a whole. This Part zooms out to briefly consider these broader questions and applications. Section IV.A illustrates that a placebo methodology can be valuable in legal analysis whenever there is need to compare the effectiveness of a policy with its value on changing the public’s perception of the problem it was purported to address. Section IV.B considers a few alternatives to the placebo methodology that utilize some of the same truths about punishment but according to different, but tangential, socio-medical frameworks.

A. Beyond Punishment

The placebo methodology need not be limited to punishment. Learning from medical ethics and public health literatures, placebo analyses offer an underutilized methodology that impacts theoretical framing and practical problem solving. This Section briefly considers this bigger picture by developing the placebo methodology around a few case studies to spark further scholarly inquiry.

First, it is interesting to consider how much the future use of placebos in the legal literature would contribute to other well-established methodologies. For example, political economists have developed an entire field studying the symbolic value of law and policy.²⁹⁰ Analyzing the law as a symbol implicates some of the same themes as the placebo methodology because they both consider how law impacts both perceptions of society and perceptions of the lawmakers enacting such symbols. Thus, scholars have studied the theoretical symbolisms of tax policy, the environment, health law, and numerous other fields.²⁹¹ One of the key differences is that this symbolic methodology generally focuses on how lawmakers avoid political accountability through passing symbolic laws; in other words, they can gain the benefit of public perception by appearing to do something meaningful through symbolic legislation, and need not be answerable for the law’s actual effects.²⁹² The focus on political accountability and shirking can certainly add to the placebo methodology, but the methodology focuses more on the effectiveness versus perception value proposition along with the ethical considerations of policy justifications.

Behavioral economics walks a parallel path by studying how social contexts and heuristics impact decision-making.²⁹³ This discipline adds tremendous explanatory value to a host of legal and policy decisions by studying the extent to which social norms can contribute to irrational decisions.²⁹⁴ Feel-enomics—or how people feel about the economy—is often more important than the actual economy.²⁹⁵ For example, negotiators will seek to punish their adversary when they perceive unfair treatment, which can actually lead to a negative result for both parties.²⁹⁶ Thus, a person’s perception of what is socially right and wrong behavior can impact their decision-making, which can lead to net-negative results for all.²⁹⁷ Heuristics have also been an important contribution of behavioral economics, which study the mental shortcuts we use when making snap decisions about people, the natural world, and social conventions that can lead to erroneous assumptions.²⁹⁸ This spans the gamut of making snap judgements about a person’s profession, their guilt in committing some offense, or other attributes based on stereotypes that function as judgmental heuristics.²⁹⁹ Heuristics are often informed by learning social cues and stereotypes about different classes of people, and this social context impacts a person’s perception of others at the danger of making a bad and inaccurate judgment call.³⁰⁰

The similarities between behavioral economics and the placebo methodology of criminal punishment should not go unnoticed. Behavioral economics focuses on social contexts and operationalizes the importance of a decisionmaker’s social perception. The placebo methodology benefits from this literature, but it prioritizes public perception as opposed to that of the decisionmaker. Heuristic judgements are often a theme in criminal legal scholarship addressing racial profiling and sentencing disparities, and this relates to how the crime-as-disease framing characterizes certain people and communities as being part of the crime problem.

Within this broader context of using these themes about perception and accountability in legal scholarship, placebos have found some limited value. Aviram has already used slightly different placebo methods to analyze travel regulations.³⁰¹ Malani has also convincingly applied placebo methods to analyze pharmaceutical regulations, health law, consumer protection, and torts.³⁰² Others have invoked the language and terminology of placebos but often as a hollow comparison meant to denote an ineffective legal policy in fields such as financial regulation,³⁰³ labor and employment,³⁰⁴ and environmental policy.³⁰⁵

Narrowing this to the criminal legal context, there are myriad values of the placebo methodology outside of studying mass incarceration. This could extend to other punishment policies such as whether placebo policies might factor into the state of e-carceration and bail reform. In the same way that mass incarceration policies have been used to control public fear and perception, it might be possible that similar goals are imbedded in the pre-conviction bail context and even the post-conviction surveillance context.³⁰⁶ Courts are willing and ready to add to this literature, often looking for unique ways to characterize problems as placebos in the punishment regime.³⁰⁷

Policing is also a ripe field that might benefit from placebo methodologies. Deterrence advocates are often at odds with critical race theorists and abolitionists in this debate, disagreeing about the effectiveness of police presence on catching offenders and deterring future crime. While there are convincing criminological studies suggesting that more police officers can deter crime if it increases an offender’s likelihood of getting caught,³⁰⁸ many Critical Race Theory (“CRT”) scholars argue that policing comes at too heavy a cost for poor and minority communities subjected to surveillance, excessive use of force, and police killings.³⁰⁹ A placebo analysis of policing has some precedent, since the American Public Health Association adopted a policy recognizing policing as a public health issue.³¹⁰ This recharacterization paves a smoother path for a placebo analysis that may focus on how policing impacts perceptions of public safety versus its actual efficacy on public safety; this would, of course, include the nuances of racial politics such as considerations of who the police are meant to keep safe, who benefits from feeling more safe, and who suffers the social costs and consequences of police presence.

This Section is not meant to be exhaustive, but it illustrates the broader appeal and applicability of deeper examinations and use of placebo methodologies in legal scholarship. The ongoing discussions that pit the objective effectiveness of policies against how the police impact public perception of the problem will continue to shape future decision-making. By adding socio-medical ethics and policy solutions to these discussions, multiple literatures can benefit from the placebo methodology as deeper considerations of the law’s value and continued role in society.

B. Beyond Placebos

As this Article has highlighted, comparing punishment policies to a medical placebo treatment is a worthwhile methodology but one that is not a perfect analogy. This Section considers a number of alternative socio-medical framings that also have value for future consideration. Each of these alternative framings expand on different aspects of our social understanding of punishment in ways that highlight latent truths that might impact how we should think about future policy.

Perhaps the most analogous framing is thinking about punishment as a penicillin treatment. The core value of this alternative is that it highlights the changing efficacy of punishment policies across time. Penicillin is an antibacterial treatment that has significant diminishing returns. As penicillin continues to be administered to a patient and a broader population, bacteria will begin forming new strains that are resistant to this treatment.³¹¹ These diminishing returns are shared among many antibacterial treatments, which is why many doctors do not prescribe the treatment long enough for any leftover bacteria to develop immunity. These so-called “superbugs” are incredibly dangerous because they can withstand antibacterial treatments, leaving very few options to treat them otherwise.³¹²

As discussed in Section II.B, there are indeed diminishing returns in the mass incarceration context. Many scholars believe that harsh incarceration policies may have been necessary in a time when violent crime was high but would now argue that these same policies are ineffective and potentially damaging to society in the modern age.³¹³ Perhaps, like penicillin, crime and those who commit it have adapted. People who are sent to prison have an incredibly high recidivism rate in part because prison has been known to increase offenders’ access to criminal networks.³¹⁴ Therefore, the very people we are trying to quarantine from society in such a medical model of punishment are the very people the criminal justice system is responsible for turning into so-called “super predators” as many in the 1990s believed.³¹⁵

If this penicillin model has any practical value, the most important thing we can learn is that we must transition away from the penicillin of prisons. Perhaps prisons served their role in the 1980s and 1990s when violent crime was high. But like penicillin, this “treatment” is not effective over long periods of time; in fact, it is actually dangerous if used long-term. Instead, using prisons effectively to mitigate the growth of crime is important, and now we are in an era of transitioning to second-order treatments meant to ensure the infection or social disease of crime can be managed long-term.

Another alternative framing in the same vein is to consider punishment as an addictive drug. This controversial concept results in quite a different set of considerations in which there is very little benefit and almost entirely unjustifiable costs. For many abolitionists and progressive reformers, mass incarceration might fit within this description. It is a social institution to which society seems to be addicted. Every time we attempt to make reforms, the same system reemerges, and we go back to our carceral fix. Worst yet, just like a drug, many in our society realize how bad mass incarceration is.³¹⁶ Yet we cannot help ourselves. We are addicted to the retributive ideas, the incapacitation logic, and the dopamine feelings of safety. If we honor the alliterative patterns of this Article, we might portray this framing of punishment as a type of poison. The cost of continuing to ingest such a substance is a slow assured death given the harm it is causing the body politic.

This framing is a bit more radical, but it may nevertheless have some kernel of truth to it. How then does this make us think about punishment and mass incarceration? Like an illicit substance, we must break our addiction from these policies. But not even an abolitionist would support such a cold-turkey approach in abolishing prisons. Prison abolition is a generational project that will take years and even decades to accomplish,³¹⁷ which is comparable to a long-term weaning off from the substance. Perhaps we can make annual benchmarks and create a five-, ten-, and twenty-year plan to gradually lower the incarceration rate in ways that will not result in millions of offenders being released back into society all at once.

But even the most stalwart survivor who has dedicated themselves to sobriety knows that relapse is only one moment of weakness away. Whenever crime ticks up, even infinitesimally, we see people rallying for a return to tough-on-crime principles.³¹⁸ It only takes the slightest trigger of crime—whether it be a summer crime wave or even just one particularly egregious crime that gets news coverage—to make society crave retributivism, incapacitation, and the feeling of safety and justice that comes with locking people up and throwing away the key.

Another fascinating socio-medical framework to consider is malingering by proxy, which describes a psychological condition in which a person tells others that their own child or loved one is sick in order to garner sympathy, attention, and financial gain.³¹⁹ This is most prevalent among parents, who will tell others in the community that their child is sick.³²⁰ The parent will make their otherwise healthy child appear sick by mimicking symptoms, such as shaving the child’s head to mimic hair loss suffered by chemotherapy, or by forcing the child to wear bandages or a face mask to mimic injuries or an immune-compromised disorder.³²¹ By mistreating their child in this way, parents often hope to garner sympathy from the community, to be seen as a hero in their own right for taking care of their sick child, and even to ask for donations to help them pay for fake medical treatments.

Malingering is an interesting framing when conceptualizing the role of politicians, law enforcement, prosecutors, and others who are delivering mass incarceration services to the public. Under the placebo framework, these actors were likened to doctors prescribing treatment; but unlike doctors, these actors were deceiving the public for political gain. Under a malingering framing, these actors would similarly be deceiving the public for their own gain by trying to convince the public of the fake malady of criminal behavior in a way that garners public support for their cause. Like the placebo methodology, this framing is rough around the edges and requires the reader not to lose the forest for the trees. Instead of looking for exact 1:1 comparisons, the big picture takeaway is that this framing highlights the perverse incentives of politicians and decisionmakers in advocating for and convincing the public about the merits of harsh punishment policies.

The medical literature is still exploring the level and types of treatment for malingerers, having to confront whether this condition should be considered a psychological disorder.³²² Regardless of this medical question, malingering by proxy is an incredibly harmful antisocial behavior that harms both the communities subject to the false information and the proxy, a usually-vulnerable party who must pretend to be sick. The takeaway from such a framing would be to hold our lawmakers, police officers, prosecutors, and all others who are using deceptive means (whether purposely, knowledgeably, recklessly, or negligently)³²³ accountable for their mischaracterizations that have damaged the community and the public trust.

This Section is meant to be creative, thought-provoking, and controversial. In the same way that the placebo methodology challenges the status quo and our assumptions about mass incarceration, the framings of penicillin, illicit drugs, and malingering offer brief vignettes of alternative ways to highlight different aspects of the modern punishment crisis and how to resolve it. This Section illustrates the value of socio-medical tools to break free of stale approaches to crime and punishment, and I hope it sparks new discussion and theories of the criminal legal system to push the boundaries of what is possible toward reformist interventions.

Conclusion

The medical study of placebos offers a unique approach to theorizing criminal punishment. Because crime is often considered a social disease and punishment is seen as its treatment, mass incarceration policies truly deliver a placebo impact. The placebo methodology captures the importance of the social and cultural context required for mass incarceration policies to control the public’s fear and perception of crime, without having commensurate value on impacting public safety.

This approach offers multiple innovations that raise interesting questions about the future of mass incarceration policies. The interdisciplinary insights from medical ethics provide a stark picture of the sheer lack of justifications for using placebo policy in the punishment context. The negative social costs and harm, malevolent use of deception, the pervasive use of experimentation toward harsher punishment, and the perverse economic incentives require us to abandon placebo policies and move toward punishment practices that can actually make us safer by focusing on what causes the crime/cancer problem through preventative medical and social means.

This is the double-edged sword of the placebo methodology. It reveals the latent problems of punishment policies, but it also provides insight into avoiding the same placebos in the coming generation. This Article hopes to contribute to the larger conversation, ensuring that the sword is slicing in the right direction toward a safer, fairer, and more justified punishment future.

98 S. Cal. L. Rev. 513

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Sheldon A. Evans*

*Professor of Law, Washington University School of Law. I thank Erin Blondel, Vincent Chiao, Chad Flanders, Daniel Fryer, Trevor Gardner II, Fareed Nassor Hayat, Ben Levin, Angelo Petrigh, Sandra Mason, Ion Meyn, Mark Pickering, Ji Seon Song, and Kit Wellman for helpful thoughts and comments. In addition, I extend my thanks to the community of scholars that provided valuable comments and feedback at the University of North Carolina School of Law, the John Mercer Langston Writing Workshop, CrimFest!, the Decarceration Works-in-Progress Workshop, and the St. Louis Criminal Law Theory Workshop. I also thank Sydney Everett for her excellent research assistance.

Decriminalizing Condemnable Conduct: A Miscalculation of Societal Costs and Benefits

May 2025May 2025Paul H. Robinson* & Jeffrey Seaman†

Recent developments have seen a trend toward de facto decriminalization of conduct that the community continues to see as criminally condemnable. This includes effectively decriminalizing certain kinds of conduct, such as lower-level theft, immigration offenses, illicit drug use, or domestic violence without serious physical injury, as well as criminal conduct by certain groups, such as rioters or statue vandals motivated by a cause with which officials sympathize. Such de facto decriminalization can come about in a variety of ways, including policy decisions by the local prosecutor or city council not to arrest or prosecute or by state legislation or referendum that (often unintentionally) decriminalizes the conduct.

The supporters of such decriminalization are typically acting in good faith to produce what they see as a better society, commonly driven by one or more of four motivations: (1) a belief that medical, social services, or mental health professionals are a better response to crime than the criminal justice system—what might be called the anti-criminal justice motivation; (2) a desire to reduce sanctions that would otherwise be imposed upon a group seen as oppressed—what might be called the social justice motivation; (3) a belief that a moral elite are in a better position than the rest of society to decide what is and is not criminally condemnable—what might be called the moral superiority motivation; and (4) a belief that locales rather than the broader jurisdiction should decide what is criminalized, even though the state or federal constitution provides otherwise—what might be called the local superiority motivation.

This Article argues that these justifications for effectively decriminalizing condemnable conduct are questionable. Even if they did offer some societal benefit, any such benefit would be dramatically outweighed by their societal costs: the immediate costs of lost deterrence and lost ability to incapacitate repeat offenders, as well as the even more damaging long-term costs of lost moral credibility and legitimacy, a loss which can only serve to reduce compliance, cooperation, and acquiescence and instead increases resistance, subversion, and vigilantism in the community.

We point out, however, that the same principles apply in reverse situations. Just as conduct seen by the community as criminally condemnable ought not be decriminalized, so too conduct seen as blameless or of reduced blameworthiness ought to be entitled to a defense or mitigation, which current criminal law sometimes fails to do. Similarly, just as conduct seen as condemnable ought to be criminalized, so too conduct that is no longer seen as condemnable ought to be formally decriminalized, which, again, current criminal law sometimes fails to do. Ensuring that the criminal law tracks society’s criminalization-decriminalization judgements should not be controversial in a democratic society, and this Article argues for a fair and consistent application of that principle to all areas of criminal law.

Introduction

Increasingly, what the public views as criminal does not coincide with what receives punishment. This Article examines the understudied phenomenon of decriminalizing conduct still viewed as criminally condemnable by society and argues for bringing all areas of criminal law back in line with the community’s criminalization judgements.

Criminal law marks itself off from other areas of law by dealing with conduct that is seen as sufficiently condemnable to deserve the punishment and stigma of criminal conviction. Society’s criminalization standard is nuanced and leaves a great deal of morally condemnable conduct non-criminalized. Cutting in line to buy concert tickets is likely to be seen as condemnable, especially by those who camped overnight, but probably falls short of the condemnation required for criminalization. Some behavior may be seen as quite immoral—betraying a confidence, cheating in a relationship, etc.—but it is not considered criminal since it falls within a perceived realm of personal liberty to make even wrong choices.¹

Society’s criminalization judgements can change over time, downgrading criminal behavior to immoral-but-legal or even fully acceptable conduct. For example, adultery was once seen as sufficiently condemnable to deserve criminalization but is now widely seen as immoral behavior falling within a sphere of personal liberty, and thus a matter for purely social disapproval instead of criminal condemnation.² Some changes can be even more drastic and quick, as with same-sex intercourse going from criminalized to same-sex marriage being widely supported.³

The point along the continuum of condemnation where social disapproval turns into criminalization will have its close cases, especially since people’s understanding of personal liberty differs, but in the vast majority of cases the difference will be clear—and important. Criminally condemnable conduct calls for stigmatization, denunciation, and punishment that serves to announce and reinforce the societal norm, with the hope that people will internalize the norm. Marking out conduct as noncriminal is equally important. Decriminalizing birth control or same-sex intercourse sent the important message that such conduct was a matter for personal liberty, protected from government interference,⁴ and any residual societal norm against the behavior was thus weakened and left open to replacement. Criminalization and decriminalization are two equally important tools of regulating societal behavior.

Conduct may be de jure decriminalized by the legislature, but it may also be de facto decriminalized by nonlegislative state or local officials who adopt and announce a policy that it will no longer be treated as criminal and subject to prosecution. Once such a de facto decriminalization policy is announced, it logically signals police to consider not making arrests for such conduct. As a legal matter—and as a constitutional and a democratic matter—the de jure and de facto forms of decriminalization are importantly different, but in the real world, they can have similar effects on victimizers, victims, and the rest of society.⁵

Part I of this Article documents the increasing instances in which conduct seen as criminally condemnable by the community is nonetheless decriminalized by official action or inaction. Part II details the variety of motivations and justifications given for such decriminalization, many of which readers may find reasonable or sympathetic. However, as Part III argues, we believe that those motivations and justifications, commonly aimed at creating a better society, do not fully account for the significant societal costs of decriminalizing conduct viewed as criminally condemnable by the community. The supporters of these policies no doubt believe that theirs is a path to a better society, but we argue that they fail to take account of both the immediate costs of lost deterrence and lost ability to incapacitate repeat offenders and the longer-term societal costs of lost moral credibility and legitimacy of the criminal justice system.

This Article is not an attack on the proponents of such decriminalization policies or an attempt to prevent all decriminalization. We argue that the principles developed in Part III need to be applied equally to the full range of reverse situations, in which improper criminalization and undeserved punishment may occur. Part IV argues that, just as criminal law ought not violate shared community views by failing to criminalize, it also has an obligation to recognize defenses and mitigations sufficiently broad to reflect community views, which it currently does not do. (Of course, there are limits to the appropriate breadth of excuse defenses, and those limits exclude recognizing ideologically driven defenses like a “rotten social background” defense,⁶ which has been supported by the same decriminalization motivations detailed in Part II, and which clearly conflicts with community views.) Additionally, there is always a need to make sure criminal punishments align with the community’s view of justice, but a public desire to reduce punishment for crime should not be mistaken as support for decriminalization. However, when community views on criminalization do change, the same cost-benefit analysis from Part III demands that criminal law decriminalize conduct that falls below the community’s condemnation threshold required for criminalization.

I. Decriminalizing Condemnable Conduct

Conduct seen as criminally condemnable by a clear majority of the community can be de facto decriminalized in a variety of ways. This Part examines those various mechanisms and gives a series of case examples. Section I.A discusses how local prosecutors can announce non-prosecution policies for conduct that is clearly criminal under state law, thus effectively decriminalizing that conduct by eliminating the chance of criminal liability. Similarly, local officials (such as a mayor or city council) may direct police to not make arrests for certain criminal conduct, thus achieving the same result. Section I.B examines how local authorities may de facto decriminalize conduct when committed by specific groups in what appears to be a selective decriminalization for ideological or political reasons. Because this kind of decriminalization only applies to certain kinds of offenders, it appears that local officials are essentially providing an ideological defense for crime. Section I.C discusses how a formal change in law by the legislature can have the practical effect of decriminalizing condemnable conduct, such as by reducing the conduct to an offense category for which arrest is not authorized and for which the only sanctions available are those used for civil or administrative violations (e.g., a ticket or citation). Section I.D answers an obvious question: How can decriminalization enacted by duly elected officials, or even voters, conflict with community judgements of what is criminal conduct?

A. Non-Prosecution Policies Rejecting a Legislative Criminalization Decision

De facto decriminalization occurs when local prosecutors create policies of non-prosecution for certain crimes. In addition to creating failures of justice in the eyes of the community, such policies also raise serious separation-of-powers concerns as such prosecutors are essentially arrogating legislative criminalization authority to themselves, in conflict with the state constitution’s grant of that authority to the state legislature. Local prosecutors obviously need to exercise discretion in individual cases because not all crimes and offenders are the same, and statutes cannot comprehensively cover all variations in circumstances. But to enact a policy of non-prosecution of a general category of conduct criminalized by the state legislature is to usurp the criminalization authority of the legislature in deciding what conduct is criminal in the first place.⁷

While there have been dozens of “progressive prosecutors” who have engaged in such policies,⁸ consider the examples of Larry Krasner in Philadelphia and Biba Biberaj in Loudoun County.

Larry Krasner: Decriminalizing Illegal Gun Carrying in Philadelphia.

In 2017, Larry Krasner was elected to the Philadelphia District Attorney’s office after winning the Democratic primary with 38% of the vote.⁹ He immediately set about pursuing a policy of non-prosecution whereby he used his discretion to not prosecute criminals guilty of certain crimes—including felonies. Perhaps his most controversial decision, from the community perspective, was his lax approach to illegal gun possession or carrying. With his overall goal being keeping offenders out of prison, Krasner chose to essentially decriminalize most felony gun possession.¹⁰ The extent of this policy was striking: “The Krasner office has withdrawn or dismissed 65 percent of gun charges this year [2021], up from 17 percent in 2015.”¹¹ After Krasner enacted these policies, guns flooded Philadelphia, and the number of arrests for gun crimes in Philadelphia tripled, but, predictably, the arrests failed to deter as the prosecution rate dropped by 85%.¹² In 2020, murders in Philadelphia increased by 40%, totaling 499—a higher number of homicides than in New York City, which has a population five times the size of Philadelphia.¹³ In 2021, Philadelphia recorded its highest homicide count ever, with 562 people murdered and another 1831 non-fatal shootings.¹⁴ But Krasner achieved his goal of keeping offenders out of jail by logging the lowest number of felony prosecutions in modern history, even as a controlled study found his non-prosecution policies were responsible for seventy-five extra murders a year.¹⁵

Krasner’s non-prosecution policies are so clearly damaging that he has drawn sharp criticism from his own party. After Krasner stated that Philadelphia did not have a “crisis of crime” or a “crisis of violence”¹⁶—statements that he ultimately walked back due to their obvious falsehood¹⁷—former Philadelphia mayor, Michael Nutter, who is Black, wrote that if Krasner “actually cared about [Black and Latino communities], he’d understand that the homicide crisis is what is plaguing us the most.”¹⁸ The crisis of violence escalated in 2022 to the point where the head of the Philadelphia City Council suggested reinstating stop-and-frisk policies to deter illegal gun carrying as Krasner’s non-prosecution policies failed to do so.¹⁹ Despite public concerns leading the Philadelphia Democratic Party to refuse to endorse him,²⁰ Krasner received large out-of-state campaign contributions helping him win the 2021 Democratic primary.²¹ After winning the Democratic primary, Krasner easily secured reelection in 2021,²² given that registered Democrats outnumber Republicans by seven to one in Philadelphia.²³ But Krasner’s de facto decriminalization of gun crimes led to his unprecedented impeachment by the Pennsylvania House of Representatives in 2022, though he is unlikely to ever face trial in the state senate, which requires a two-thirds vote of the chamber to convict.²⁴ Additionally, the Pennsylvania legislature passed a bill in 2023, signed by the state’s Democratic governor, to appoint a special prosecutor for crimes that occur on or near Philadelphia’s public transit system—a move made necessary by Krasner’s refusal to enforce the state criminal code.²⁵ Krasner’s unpopular decriminalization decisions may have also contributed to the victory of Cherelle Parker in the Philadelphia Democratic mayoral primary in May 2023. Parker promised to hire hundreds of extra police officers and crack down on the crime that flourished on Krasner’s watch.²⁶ Crime was the top concern among Democratic voters, with the progressive Krasner-aligned candidate, Helen Gym, finishing third with 21.5% of the primary vote.²⁷ While he might argue otherwise, it seems clear that Krasner has de facto decriminalized conduct that the community sees as criminally condemnable.

Buta Biberaj: Decriminalizing Domestic Violence in Loudoun County.

In 2019, Buta Biberaj was elected as the Commonwealth Attorney of Virginia’s Loudoun County.²⁸ In an effort to reduce prison populations and explore alternative approaches to crime, she pursued a de facto decriminalization policy for a large portion of domestic violence cases.²⁹ Biberaj explained: “[It is a] waste [of] resources investigating incidents that don’t involve serious injuries or risk of recurrence.”³⁰ Instead of supporting criminal justice intervention, Biberaj urged the community to treat domestic violence “as the health crisis it is.”³¹ Her decision contradicted research suggesting direct justice system intervention is more effective than alternative methods of dealing with domestic violence.³²

Biberaj’s policy soon produced tragic results. When a woman came to the emergency room after an assault by her husband, police arrested him for domestic assault, strangulation, and abduction.³³ However, the DA’s office simply released the man with a small unsecured bond.³⁴ The man returned home and later beat his wife to death with a hammer.³⁵ After the murder, Biberaj attempted to shift blame by claiming that the Sheriff’s office failed to offer enough details for the DA’s office to judge the seriousness of the situation—a claim vigorously denied by the Sheriff.³⁶ Biberaj’s record does not seem to suggest that victims’ safety was a priority in the DA’s office; if anything, she had a history of releasing dangerous offenders. When a high school girl was sexually assaulted by a classmate who had a history of sexual misconduct beginning in elementary school, Biberaj publicly announced that the offender would be kept at home on an ankle monitor, but instead privately worked to have the student transferred to a different high school.³⁷ Just weeks after school began again, the released offender pulled a fellow student into a bathroom, then choked and sexually assaulted her.³⁸

Of 735 domestic violence cases referred for prosecution, Biberaj dismissed 491, or 67%.³⁹ Kristen Umstattd, a Democratic member on the Loudoun County Board of Supervisors, sounded the alarm on Biberaj’s policies:

We’ve had two discussions as a board with her about our concerns. We had hoped she would take those seriously. She [Biberaj] has paid lip service to victim protection but if you talk to her privately, what she says about victims is they can be very untrustworthy and she needs to get them back—she needs to get the abuser back into the home so the victim doesn’t lose any family income. That is considered the worst possible approach to victim protection by people who work with victims all the time.⁴⁰

Umstattd and other local officials pointed to the dangerous consequences of Biberaj’s decriminalization policy: “[Biberaj] let go a man who had attempted to murder his wife. She let him go and he went back and he did murder his wife.”⁴¹ The Democratic chair of the county board, Phyllis Randall, also lamented: “Since [Biberaj] came in, the number of victims, and I mean domestic violence victims, who have reached out to us has been bloodcurdling.”⁴²

In 2023, Biberaj was challenged by Republican Robert Anderson, who attacked her record on domestic violence.⁴³ The charge resonated with residents who still viewed domestic violence as serious, criminally condemnable conduct. While Biberaj should have easily swept to reelection given that 2023 turned out to be an excellent year for Democrats in Virginia, there was one exception to the Democratic sweep: Buta Biberaj was ousted from office by Loudoun County voters angry with her non-prosecution policies.⁴⁴

The Progressive Prosecutor Movement and De Facto Decriminalization of Low-Level Crimes.

It is important to note that the above cases of de facto decriminalization are not rare, quirky exceptions, but representative examples of a broad national movement.⁴⁵ The de facto decriminalization of a variety of low-level crimes has been widespread with the success of the progressive prosecutor movement.⁴⁶ Since 2016, a wave of “progressive prosecutors” have taken power in many of America’s largest cities.⁴⁷ In 2022, at least half of America’s largest prosecutorial districts, covering some 72 million Americans, were run by progressive prosecutors, who presided over cities such as Los Angeles, Seattle, Chicago, Philadelphia, and New York City.⁴⁸ While some of those prosecutors won elections based on grassroots efforts, many others were boosted to victory in Democratic primaries by enormous campaign contributions from progressive megadonors like George Soros—helping to explain why so many progressive prosecutors can win elections despite advocating decriminalization policies that may contradict community views.⁴⁹ Many progressive prosecutors have little prosecutorial experience, but they share a commitment to instituting non-prosecution policies⁵⁰ that effectively decriminalize a range of criminal conduct that was democratically criminalized by the legislature and is still likely viewed as criminally condemnable by most of the community.⁵¹ Of course, not every self-described “progressive prosecutor” implements the same policies, and not all run counter to community views, but a commitment to non-prosecution policies, such as those enacted by Larry Krasner and Buta Biberaj, is one of the defining features of the movement.⁵²

B. Non-Prosecution of Selected Political or Ideological Groups

Decriminalization can sometimes be tied to offenders who belong to select political or ideological groups rather than specific offenses. For example, choosing not to prosecute rioters where the authorities share the perceived political or ideological beliefs of the rioters effectively decriminalizes conduct committed with that political or ideological motivation. Consider as an example the treatment of rioters during the protests following George Floyd’s death in 2020.

Non-Prosecution of Rioters in Portland.

After the death of George Floyd in May 2020, America saw waves of mostly peaceful protests by day turn into mostly violent riots by night. Portland, Oregon suffered more than 100 nights of riots starting in May 2020. The riots caused tens of millions of dollars in damage and terrorized the residents of Portland, who suffered an enormous decline in quality of life.⁵³ Mayor Ted Wheeler surveyed the damage after a night of rioting and reported: “I’ve never seen anything of this magnitude. The damage here is widespread. It’s not localized, it’s all throughout the downtown area.”⁵⁴

But the nightly destruction had just begun. On June 25, the fifty-seventh consecutive night of riots, Portland’s North Police Precinct building became a target of rioters. As the people inside the building tried to escape, attempts were made to keep them trapped in the building as efforts were made to burn down the structure. Authorities tried to extinguish the flames, but a crowd of around 300 continued to advance, throwing rocks and bottles.⁵⁵ Rioters came prepared with gas masks, shields, and weapons.⁵⁶ On April 14, 2021, almost a year after the riots began, the Portland Police Association building’s main entrance was set ablaze.⁵⁷ Rioters threw rocks and bottles at the officers. Other rioters stayed busy looting local businesses.⁵⁸ The unrest was unprecedented in the city, with nothing off-limits to the rioters. Private businesses were looted and burned; even public parks were vandalized. In the mass disturbances, Portland police only arrested one thousand or so individuals with enough specific evidence of a specific offense to support prosecution. Many of these were arrested on more than one occasion.⁵⁹

In response to this, District Attorney Mike Schmidt used his authority to decline to prosecute most (91%) of these especially egregious offenses.⁶⁰ He issued a written statement explaining his decision, in which he essentially applauded the arrestees for “tak[ing] action to bring about immediate change”:

Since late May, we have seen nightly demonstrations where people take to the streets to express their collective grief, anger and frustration over the senseless murder of George Floyd, and the countless other abuses People of Color have endured throughout history. “As prosecutors, we acknowledge the depth of emotion that motivates these demonstrations and support those who are civically engaged through peaceful protesting. We will undermine public safety, not promote it, if we do not take action to bring about immediate change.”⁶¹

Schmidt’s decision not to prosecute almost any rioters who did such damage to downtown Portland for months would likely have been unfathomable had the riots been perceived as supporting a different political cause. Schmidt’s political decriminalization of the rioting likely contributed to a steep drop in his approval ratings. A 2023 poll found that just 11% of respondents thought Schmidt was “doing a ‘good job.’ ”⁶² In May 2024, Schmidt lost reelection to one of his own deputies, Nathan Vasquez, who campaigned on a promise to take “lawless behavior seriously and enforce our laws.”⁶³ It seems clear that Schmidt’s decriminalization policies conflicted with the criminalization judgments of the community.

The National Picture.

Unfortunately, Schmidt was not alone in his decision to effectively decriminalize rioting during 2020. Despite the nationwide rioting costing up to $2 billion,⁶⁴ and leading to many deaths,⁶⁵ progressive prosecutors across the country chose not to prosecute the vast majority of arrested rioters for political reasons. In most large cities (with progressive prosecutors), 90–95% of riot-related cases were dropped.⁶⁶ Around the country, while buildings burned and stores were looted in front of rolling cameras, thousands of violent protestors who were known to authorities were not prosecuted. The justifications offered varied by jurisdiction, but political or ideological support for the rioters’ perceived cause was invoked by a number of prosecutors.⁶⁷ For example, in Chicago, Cook County State’s Attorney Kim Foxx stated that she would not prosecute the majority of the cases stemming from more than one thousand arrests during the George Floyd protests because “[o]ver the past month we have seen righteous anger, collective grief, action, and demands for justice.”⁶⁸ Foxx instructed her staff to act with a presumption of dismissal,⁶⁹ despite the fact that the lawless chaos that descended on Chicago had severely hurt minority communities.⁷⁰ The increasing dissatisfaction with Foxx’s handling of crime in Chicago likely contributed to her deciding in 2023 not to seek reelection.⁷¹ Unsurprisingly, many community members feel strongly that rioters and looters should face consequences no matter what triggered the initial unrest. The de facto decriminalization of looting in New York City in 2020 led to outrage among many storeowners, with one Bronx business leader describing her progressive DA’s decision to drop most looting charges: “Those numbers, to be honest with you, is [sic] disgusting. . . . I was in total shock that everything is being brushed off to the side.”⁷²

The de facto decriminalization of rioting has continued in some jurisdictions beyond 2020, with the commonality being expressions of sympathy for the rioters. In September 2023, looters and rioters took to the streets in Philadelphia after a judge dismissed murder charges against a police officer involved in a fatal shooting. Philadelphia’s DA, Larry Krasner, responded to the widespread looting by announcing a policy of prosecutorial restraint and urging sympathy with some of the offenders: “We’ll look carefully to see whether this is a one-off situation and they’re fundamentally law-abiding people.”⁷³ This statement may have puzzled listeners who might wonder how “fundamentally law-abiding people” could find themselves robbing an Apple Store, Rite Aid, and Dunkin’ Donuts, among the other Philadelphia stores looted in the unrest.⁷⁴

The de facto decriminalization of rioting in 2020 clearly ran counter to community views: a poll taken after Floyd’s death showed 72% of Americans viewed “violent protests and unrest” as an inappropriate response to police killings even as a clear majority also supported non-violent protests.⁷⁵ When it comes to politically motivated violence more broadly, less than 7% of Americans in one 2022 survey expressed support for such conduct, and “nearly all respondents support criminally charging suspects who commit acts of political violence.”⁷⁶

The de facto decriminalization of rioting also seems likely to have tarnished the justice system’s reputation, making those not on the political left more likely to view future prosecution decisions as having a political bias.⁷⁷ For example, many conservatives saw the aggressive prosecution of January 6 Capitol Hill rioters as constituting a clear double standard because of the previous one-sided decriminalization of rioting in 2020.⁷⁸ The events at the U.S. Capitol on January 6, 2021 led to federal prosecutors pursuing charges against more than 1,200 individuals.⁷⁹ A large number of these

were ordered held without bond. D.C. jail officials later determined that all Capitol detainees would be placed in so-called restrictive housing—a move billed as necessary to keep the defendants safe, as well as guards and other inmates. But that mean[t] 23-hour-a-day isolation for the accused, even before their trials beg[a]n.⁸⁰

Those who attacked federal buildings in Portland, Oregon were treated very differently. Of the 96 federal Portland cases which have been brought forward, 47 have been dropped, no one has faced trial, and those who have pled guilty have been largely sentenced to community service.⁸¹ No Portland protestor has been held in solitary confinement.⁸² While clearly an attack on the U.S. Capitol is more serious than attacks on federal buildings in Portland, the disparity in punishment is still sufficiently striking as to raise even non-partisan eyebrows. Most convicted January 6 defendants received prison or jail sentences, with some being sentenced up to 20 years,⁸³ while most of those who burned federal buildings and attacked federal officers in Portland had their cases quietly dropped.⁸⁴ Indeed, this disparity was noted by Judge Trevor McFadden in sentencing January 6 rioters when he openly questioned why prosecutors were demanding stringent sentences for January 6 defendants when they had seemed unconcerned with addressing widespread rioting in D.C. in 2020: “I think the U.S. attorney would have more credibility if it was even-handed in its concern about riots and mobs in this city.”⁸⁵ To be clear, prosecuting rioters who broke into the U.S. Capitol on January 6, 2021 is perfectly appropriate, but the strictness of the response highlights how little effort was made in many jurisdictions to punish the widespread rioting in 2020. Unfortunately, it appears rioting is only a crime in some jurisdictions when prosecutors disagree with the perceived politics of the rioters. Most Americans see rioting as criminal regardless of its motivations, but this important norm is endangered when prosecutors are perceived as only punishing rioters with certain political beliefs.

Non-Prosecution/Non-Arrest of Demonstrators Pulling Down Statues of Historic Figures of Whom They Disapprove.

While the motivations of prosecutors in refusing to enforce laws against rioting in 2020 were obviously political, the special case of the destruction of historic statues makes these motivations even clearer. Self-described “anti-racist” protestors in 2020 targeted a wide variety of public statues, ranging from those of Confederate generals like Robert E. Lee to anti-slavery heroes like Abraham Lincoln (because he signed off on the death warrants for a group of Native Americans in 1862).⁸⁶ Statues were targeted in Albuquerque, Birmingham, Boston, Chicago, Miami, Nashville, Pittsburgh, Richmond, St. Paul, and Portland among dozens of other cities across the country.⁸⁷ In almost all cases, none of those engaged in vandalism received any punishment, with local officials often publicly sympathizing with the actions or rushing to remove statues before they could be torn down by demonstrators.⁸⁸ For example, a group of protestors in Birmingham, Alabama was in the process of destroying statues on May 31, 2020, when Mayor Randall Woodfin arrived at the scene. Instead of ordering police to arrest the lawbreakers, he promised his support: “I understand your frustration. . . . Allow me to finish the job for you.”⁸⁹ Woodfin’s promise to use city resources to remove the statues temporarily placated the group, which abandoned the scene for riper targets around the city.⁹⁰ Soon the widespread looting and arson forced Woodfin to declare a state of emergency across the city.⁹¹

In addition to its direct effect through dropping charges, non-prosecution of selected groups may also lead to de facto decriminalization indirectly if police stop making arrests because they know charges will not result. Consider how few arrests were made for the dozens of public statues vandalized or destroyed during the 2020 riots, despite the blatant vandalism often being captured on video or with police standing by.⁹² For example, Portland police did nothing to stop protestors from toppling a statue of Abraham Lincoln (not exactly a racist icon) on October 11, 2020, perhaps understanding that District Attorney Mike Schmidt would never prosecute anyone arrested.⁹³ It seems more than plausible that the DA would have had a different view, and the police would have acted differently, had a mob of Ku Klux Klan members attempted to destroy the same statue. While this is admittedly speculation, the fact it will strike many as reasonable shows how the prosecution response (or lack thereof) to rioting and statue destruction in 2020 was perceived to hinge on politics instead of an impartial consideration of the underlying conduct.

C. Legislative Decriminalization

Legislative changes in law can effectively decriminalize conduct seen by a majority of the community as criminally condemnable. Two examples of this include California’s Proposition 47 effectively decriminalizing theft under $950, and Oregon’s Measure 110 decriminalizing the possession and use of “hard” drugs, including even the wildly dangerous fentanyl. Another example is legislative change to state or local law to create immigration sanctuaries designed to prevent enforcement of federal statutes criminalizing illegal entry into the United States.

California’s Proposition 47: Decriminalizing Theft Under $950.

On November 4, 2014, 59% of California voters passed Proposition 47, which was printed on the ballot as: “Criminal Sentences. Misdemeanor Penalties. Initiative Statute”⁹⁴ and campaigned for by its supporters under the rather misleading title: “The Safe Neighborhoods and Schools Act.”⁹⁵ The titles were chosen to convey the idea that “Proposition 47 intend[ed] to ‘ensure that prison spending is focused on violent and serious offenses,’ ” which would, according to the draftees, free up millions of dollars in funding that would then be spent on schools.⁹⁶ The ballot title also conveyed the idea that criminal convictions would remain for the conduct in question, with only the punishments being lowered.⁹⁷ In addition to downgrading various drug offenses, Proposition 47 downgraded numerous different felony theft crimes to misdemeanors where the value of the stolen property is $950 or less. The newly minted misdemeanors included, among other offenses, commercial burglary, grand theft crimes, possession of stolen property, and petty theft with priors.⁹⁸

What voters were not told is that the downgrades under the statute effectively prevented police from enforcing these crimes at all. Due to California law regarding misdemeanor arrest authority, under the new classification, police were no longer authorized to custodially arrest offenders but only issue a written citation, as with low-grade traffic violations.⁹⁹ Thus, for example, while previously police could respond to a report of retail theft and immediately arrest a suspect on probable cause for burglary, after Proposition 47, a citizen would first need to detain the offender and call the police, who could then only issue a citation.¹⁰⁰ As a result of these changes, stealing under $950 became essentially an unenforceable crime—a consequence voters could not be expected to foresee when voting for “The Safe Neighborhoods and Schools Act.”

The results of the de facto decriminalization were predictable. With police unable to even make a custodial arrest if someone caught a thief, there was no reason to even call police in the first place or report the crime.¹⁰¹ Some cities, such as San Francisco, have been hit particularly hard. Almost half of downtown San Francisco retail stores have closed, with many citing theft as a cause.¹⁰² Sacramento’s Democratic Sheriff, Jim Cooper, described retail theft as “beyond crisis level” in 2023 and shared the view of many law enforcement officials as to the underlying cause:

It really started with the change in law in 2014 with Prop 47, which was voted on by the voters, I should say, and the voters were duped into voting for that. It was called the [S]afe [Neighborhoods] and [S]chools [A]ct. . . . I think they have no idea. God bless the voters. I love the voters. But it’s hard, you read the ballot and you’ve got a lot of items on there and you’ll [see] ‘The Safe Neighborhoods and Schools Act? What does that have to do with drugs and theft?’ And that’s really what it was. It decriminalized seven crimes, drug and theft crimes. And that’s why we find ourselves in the predicament we’re in today.¹⁰³

With police unable to arrest thieves, California stores have responded by locking up more products. San Francisco’s Walgreens stores average 4 times more theft than the rest of the country,¹⁰⁴ with one store being hit more than 20 times per day, leading to desperate employees putting chains on the freezer section.¹⁰⁵ The sense of impunity among shoplifters is palpable. As one shoplifter stopping to explain his actions to reporters stated: “It’s San Francisco, Bro.”¹⁰⁶

The de facto decriminalization of theft in California has sparked outrage among even left-leaning California residents. A 2022 poll found that 59% of California voters supported changing Proposition 47 to reinstate many property crimes as felonies, while only 30% supported leaving the law intact.¹⁰⁷ Democratic state lawmakers responded in 2023 by introducing measures targeting repeat shoplifting, thus tacitly admitting the damaging consequences of Proposition 47. One such bill, AB 1772, “require[s] jail time if someone were convicted of a third theft crime” regardless of the value of the goods stolen.¹⁰⁸ Similarly, AB 1708 would have changed the law to allow any third theft crime to be charged as a felony.¹⁰⁹ Other democratic officials have openly acknowledged Proposition 47’s failure. For example, San Mateo’s County Supervisor, David Canepa, once supported Proposition 47 but now admits its decriminalization of theft was a mistake: “Enough is enough! All this retail theft. All this sort of crime. Enough is enough. We really need to look at state laws. What we have in place right now is not working. . . . We can’t go on like this.”¹¹⁰ Despite strong public support for cracking down on theft, the California legislature was slow to act. However, a bipartisan ballot initiative, Proposition 36, “The Homelessness, Drug Addiction, and Theft Reduction Act” gained the necessary signatures to allow voters to reverse parts of Proposition 47 directly at the ballot box in November 2024.¹¹¹ Proposition 36 proposed to make third-time shoplifting a felony regardless of the amount stolen, allow multiple shoplifting incidents to be consolidated and charged as a felony, increase the punishment for largescale retail theft, and increase penalties for drug offenses and force addicts into rehab.¹¹² In an attempt to prevent Proposition 36 from passing, the California legislature finally enacted a series of anti-theft bills in August 2024, including a measure allowing police to make warrantless arrests of shoplifters for thefts not committed in an officer’s presence.¹¹³ But this belated effort to address community concerns and stop a wider rollback of Proposition 47 failed. Proposition 36 passed overwhelmingly, with around 70% support, confirming that Californians had never intended or supported the de facto decriminalization of theft.¹¹⁴

Oregon’s Measure 110: Decriminalizing Hard Drugs.

In 2020, Oregon became the first state to decriminalize possession of “hard” drugs, when 58% of voters approved Measure 110.¹¹⁵ The law decriminalizes possession of drugs for personal use, including methamphetamine, heroin, and other controlled substances, and even the wildly dangerous fentanyl, which has become a leading cause of death in the United States for Americans aged 18–45.¹¹⁶ The possession of such drugs became merely a violation, and people who are caught in possession of the listed drugs are issued the equivalent of a traffic ticket, with the possibility of a fine. The fine is waivable if the individual makes a call to an addiction-recovery center and asks for a health assessment.¹¹⁷ Of course, enforcing the fine against violators is practically impossible, as there is no penalty for not paying the fine.¹¹⁸ With little incentive for violators to even ask for a health assessment, the vast majority did not.¹¹⁹

Similar to how Proposition 47 de facto decriminalized theft in California through misleading promises to voters, Measure 110 de facto decriminalized hard drug possession and use. While Measure 110 won approval by promising to more effectively move people struggling with addiction into treatment and off the street, the results, perhaps predictably, were quite different. Instead of reducing addiction, the de facto decriminalization turned Oregon into a drug user’s and dealer’s “paradise” according to users themselves.¹²⁰ As one investigative report found: “There are more dealers, scouting for fresh customers moving to paradise. That means drugs are plentiful and cheap.”¹²¹

Figure 1. Multnomah County Synthetic Opioid Overdose Deaths, 2018–2022

Source: Health Department Briefs Board of Fentanyl Crisis, Multnomah Cnty. (June 29, 2023), https://multco.us/news/health-department-briefs-board-fentanyl-crisis [https://perma.cc/H77A-BJZ7].

Drug usage and overdosing significantly increased in Oregon. Figure 1 shows overdose deaths from synthetic opioids in Oregon’s most populous county over time, which reflects the general trend across the state.¹²² In 2023, Oregon’s rate of fentanyl death had surged to 13 times the national average.¹²³ There were 1,416 opioid overdose deaths in Oregon in 2023, up from 472 in 2020 before the decriminalization, an increase of 200% compared to a national increase of only 18% over the same period.¹²⁴ In fact, opioid overdose deaths kept rising in Oregon in 2023 even as they declined nationwide.¹²⁵ A special treatment hotline received fewer than two calls a week on average from drug possessors ticketed by police, as most addicts simply ignored the tickets.¹²⁶ Far from ushering addicts into treatment, Measure 110 drove them to the morgue in ever greater numbers. Opioid overdoses became so common in Portland that medical professionals encouraged everyone to carry Narcan, a drug which can reverse overdoses.¹²⁷ As one nurse explained: “My kids know how to use it and they know where it is. . . . Honestly, if you live in Portland, Oregon, you don’t know when you might be someone who comes across someone who is overdosing.”¹²⁸ In December 2023, the state decided to provide Narcan to all schools requesting it, and 500 institutions signed up in a week.¹²⁹ As a result of surging drug usage and crime caused by Measure 110, public opinion in Oregon swung decisively against the decriminalization experiment. A 2023 poll found 64% of Oregon residents supported reinstating criminal penalties.¹³⁰ In September 2023, progressive Portland passed a local ban on public drug use with a penalty of up to 6 months in jail, but the law could not take effect without a change in state law.¹³¹ Sure enough, in April 2024, Oregon’s Democratic-controlled government recriminalized drug possession, with criminal enforcement resuming in September 2024.¹³² Other states have also learned from Oregon’s mistake. Washington State’s Democratic-controlled legislature chose to increase criminal penalties for drug possession in May 2023 instead of legalizing drugs when the state’s previous drug prohibition law expired that year.¹³³

Immigration “Sanctuaries”: Decriminalizing Illegal Entry into the U.S., Even by Criminals.

Few issues are as partisan in America today as the question of immigration. Many state and local governments have expressed support for allowing undocumented immigrants to remain in the country by passing so-called “sanctuary laws.” Currently, thirteen states have explicit or de facto statewide immigration sanctuary policies (including, most significantly, California), and other jurisdictions around the country have county- or city-wide sanctuary policies (including large cities like Baltimore and New York City).¹³⁴ As of 2015, roughly 300 jurisdictions in the U.S. had some form of sanctuary policies intended to limit the enforcement of federal immigration laws.¹³⁵

Such immigration sanctuary laws usually involve two parts. One part prohibits local law enforcement from ever asking any person about immigration status, and such policies can have clear popular support in many jurisdictions as residents, perhaps correctly, believe that such inquiries would discourage crime reporting and cooperation with police by undocumented immigrants.¹³⁶ The second part of sanctuary laws is less reflective of community views, as it involves requiring local police to refuse to follow federal detainer requests for criminal undocumented immigrants who are arrested for a non-immigration offense (e.g., theft or driving under the influence).¹³⁷ A detainer is a request for local police to hold the illegal immigrant offender until federal authorities can take custody of the individual and deport or prosecute them for illegal entry into the United States. Refusing to honor detainers de facto decriminalizes illegal entry by such criminal offenders because it prevents federal authorities from effectively punishing the crime of illegal entry committed by those offenders.

California’s sanctuary law illustrates this broad form of illegal entry decriminalization. On January 1, 2018, California became a sanctuary state for undocumented immigrants as progressive lawmakers promised to put a “kink” in the federal administration’s immigration enforcement.¹³⁸ The law banned local police from honoring immigration detainers issued by U.S. Immigration and Customs Enforcement (“ICE”) (with only rare exceptions) even if the person had been arrested for committing a crime. This decriminalization appeared to conflict with community preferences even in California, as a 2017 poll found a majority of Californians opposed allowing local jurisdictions to refuse to honor ICE detainers for undocumented immigrants arrested for a non-immigration offense.¹³⁹

Sheltering criminal undocumented immigrants proved costly. On December 13, 2018, 36-year-old Gustavo Garcia, an offender with a serious criminal record who had been caught and deported twice previously, was arrested for driving under the influence in Tulare, California. ICE again issued a detainer, which the local sheriff wanted to honor because Garcia’s past record showed he was a danger to the community, but the sheriff was obliged under the sanctuary law to refuse the ICE detainer and release Garcia. The next day, Garcia went on a rampage of robbery, shooting, and murder, killing two people and seriously injuring at least four others. The local sheriff was outraged that the sanctuary law prevented him from holding Garcia and saving lives.¹⁴⁰

Many may wonder how ideologically driven policies shielding criminal immigrants serve any just purpose or even protect the undocumented communities that sanctuary laws ostensibly aim to help. This frustration is bipartisan, as prominent Democrats have called for repealing protections for criminal non-citizens. In February 2024, New York City Mayor Eric Adams urged the city to change its sanctuary law to allow police to hand over criminal non-citizens to ICE: “If you commit a felony, a violent act, we should be able to turn you over to ICE and have you deported.”¹⁴¹

More broadly, sanctuary laws run counter to the national community’s views on justice. A 2017 poll found that an overwhelming 80% of voters believed local authorities should be required to report undocumented immigrants to federal authorities.¹⁴² And a 2024 poll found 65% of Americans support deporting undocumented immigrants (one can only imagine the likely higher support for deporting such immigrants who commit non-immigration crimes).¹⁴³ Despite public opinion favoring immigration enforcement, some thirteen states and hundreds of smaller jurisdictions are immigration sanctuaries, as illustrated by Figure 2.¹⁴⁴ Over 36% of Americans live in sanctuary states, despite such policies appearing to reflect only minority views nationally.¹⁴⁵

Figure 2. Sanctuary Jurisdictions in the United States

Source: Full Screen Map: Sanctuary Cities, Counties, and States, Ctr. for Immigr. Stud., https://cis.org/Full-Screen-Map-Sanctuary-Cities [https://perma.cc/ZA2P-C3K6].

D. If Decriminalizing Is Done by a Duly Elected Official or by the Voters Themselves, How Could It Conflict with Community Views? The Messiness of Democracy in Action

It is an obvious question to wonder how decriminalization brought about by a popular referendum or state legislation (such as California Proposition 47 and Oregon Measure 110) or by democratically elected officials (such as Larry Krasner or Buta Biberaj) could conflict with the community’s views of what ought to count as criminal conduct. Should a democratic system not, by its very nature, produce criminalization in line with community views? Unfortunately, the messiness of democracy in action means the nuanced views of the community on what conduct does and does not deserve criminalization will not always translate into public policy. There are several mechanisms by which this disconnect can occur.

Misleading or Package Deals.

A majority of voters may be convinced to support broad, combined, or misleadingly advertised policies even if the change will in fact lead to consequences that conflict with the community’s views on what counts as criminal conduct. For example, as noted previously,¹⁴⁶ Proposition 47 was passed in California under the ballot title “Criminal Sentences. Misdemeanor Penalties. Initiative Statute,” which actively suggests “criminal sentences” would continue to be imposed for the conduct in question with only the penalties changing. One may reasonably speculate that if California voters had understood that reclassifying felony theft as a misdemeanor would effectively decriminalize the conduct, they would have been less inclined to support Proposition 47 given that the vast majority of Californians still clearly believe $950 theft is criminally condemnable conduct deserving of arrest and punishment (though not always a prison sentence). This lack of community support for the de facto decriminalization was reflected in the overwhelming voter support for Proposition 36’s toughening of theft penalties.¹⁴⁷ Additionally, an initiative like California’s Proposition 47 was quite broad, combining changes to drug and theft criminalization.¹⁴⁸ Voters may vote for a “package deal” even though they oppose parts of the policy changes in the package. This kind of “horse-trading” may be common in politics, but it is seriously problematic when it ends up decriminalizing what the community perceives as criminally condemnable conduct, because crossing that line has significant societal costs.¹⁴⁹

A False Promise to Reduce the Condemnable Conduct.

Another kind of explanation for why voters might support legislation that decriminalizes criminally condemnable conduct is that voters may be convinced to put aside their underlying views on criminalization as a result of rhetorical or ideological campaigns advocating the supposed societal benefits that would result from such decriminalization. For example, it appears a majority of Oregon voters were convinced to pass Measure 110, despite viewing the use of “hard” drugs like fentanyl as criminally condemnable, because the measure’s supporters promised it would allow for more effective reduction in drug usage.¹⁵⁰ As soon as it became clear the decriminalization was not reducing addiction as promised, voters apparently reverted to insisting that the condemnable conduct be recriminalized. This makes the passage of Oregon’s Measure 110 quite distinct from marijuana legalization referendums in other states which appear to reflect an actual change in societal views of the underlying behavior.¹⁵¹ In other words, it seems Measure 110 was passed in an effort to reduce the incidence of conduct the community always saw as criminal, while many marijuana decriminalization laws have been passed because the underlying conduct is no longer seen as criminal. Part II catalogues the many motivations behind decriminalization (including this harm-reduction motivation), and some of these motivations can lead majorities of voters to temporarily override their criminalization judgements. However, as Part III argues, decriminalizing conduct that the community sees as criminally condemnable is almost always a mistake—even if campaigners have temporarily convinced voters to experiment with it.

Election Package Deals.

Duly elected officials may substitute their minority judgements on decriminalization while still winning elections by either concealing their decriminalization intentions or by supporting popular majority positions on other topics that matter more to voters. For example, Buta Biberaj did not advertise her plans to effectively decriminalize most domestic violence when she won election to her office in 2019.¹⁵² Similarly, while Larry Krasner was open about his intentions to pursue non-prosecution policies, it may not have been clear to voters how extensive some of those policies would be, as reflected in the fact that many Philadelphia Democrats are seeking to reverse his reforms.¹⁵³ Additionally, Krasner, Biberaj, and other progressive prosecutors may win voter support in their jurisdictions by supporting majority positions on other topics (e.g., Democratic candidates may advertise their support for protecting abortion rights, increased welfare support, support for environmental protection, etc.). The large number of political issues voters must juggle, and the limited attention voters pay to the political process also allows legislators to regularly vote, and for prosecutors and local officials to act, in a way that is contrary to community views on criminalization.¹⁵⁴ This is especially true since officials can choose not to advertise the ways they act contrary to community views. This is one reason special interest groups can dominate the legislative process, as such groups might convince legislators to vote against public views in some areas while funding candidates’ ability to publicize popular stances in others.

Election Only by a Majority (or Even Plurality) of the Majority Party.

In jurisdictions dominated by one party, as is the case for most cities, a candidate for local office need only win a majority—or even just a plurality—of the dominant party’s primary votes (often representing the most partisan wing of that party) to win the larger election because of partisan voting in general elections. For example, Larry Krasner was first elected to office in Philadelphia after winning the Democratic primary with 38% of the vote¹⁵⁵ (a win enabled by generous outside campaign donations from progressive megadonor George Soros¹⁵⁶). Partisanship and machine politics is one reason why local officials may survive in office even while pursuing deeply unpopular policies.

Election by Only a Majority Within a Locale, in Which the Constitution Gives Criminalization and Decriminalization Authority to the State (or Federal) Government.

Decriminalization can conflict with broader community views if there is a jurisdictional conflict in which a local community has a different view of what conduct is criminally condemnable than the broader community. For example, a clear national majority in America opposes immigration sanctuary laws,¹⁵⁷ but majorities in individual cities or states may support them (or at least part of such laws). In addition to raising federalism concerns, such a clash is deeply unfortunate as it guarantees some members of the community will be dissatisfied with the criminal law. However, short-circuiting legislative change at the constitutionally authorized level of criminalization authority may do more harm than good even for those supporting decriminalization. Such local decriminalization produces a continuing string of failures of justice in the eyes of the broader community while the local community ceases to view generating broader support for decriminalization as urgent. This perpetuates a fragmented criminal law as opposed to allowing local decriminalization support to grow until it achieves majority support in the broader jurisdiction.

II. Decriminalization Motivations

There are a number of sometimes overlapping motivations and justifications that drive the decriminalization of conduct that the community sees as criminally condemnable. One of the most common is the anti-criminal justice motivation, described in Section II.A below, which generally opposes the use of the criminal justice system as a response to crime and would prefer dealing with antisocial conduct through medical, public health, or social service authorities. Section II.B discusses decriminalization motivated by a desire to advance “social justice” by reducing criminal arrests and convictions of persons seen as members of an oppressed group, such as racial minorities. Section II.C examines what might be called the “moral superiority” motivation in which those with minority views on decriminalization see themselves as holding a superior moral belief and so believe they know better than the community what should and should not be criminalized. Officials pursuing decriminalization under this view often imagine themselves as part of a brave moral minority with an obligation to move society’s laws to align with their own views of what constitutes a better society. Finally, Section II.D discusses the “local superiority” motivation: the view that no matter what the state or federal constitution may say about the proper allocation of the criminalization-decriminalization authority, the local view on decriminalization ought to prevail, even if the broader community opposes the resulting state of affairs.

Decriminalization contrary to majority community views can be driven by one or by any combination of these motivations or justifications, depending on the decriminalizer and the issue at hand.

A. The Anti-Criminal Justice Motivation: Rejecting the Importance of Doing Justice in Favor of a Medical, Social Services, or Mental Health Response to Crime

One of the most common motivations for and claimed justifications of decriminalization contrary to community views is the view that crime, or sometimes just certain crimes, are a problem best dealt with through various government agencies other than the criminal justice system.¹⁵⁸ Similar to some of the motivations that underlay the “Defund the Police” movement, this view suggests that society would be better off in the long run if crime was dealt with by medical, social services, or mental health actors rather than the criminal justice system.¹⁵⁹ Under this view, criminally condemnable conduct ought not to be dealt with based upon its moral blameworthiness but should instead be dealt with through means that provide therapeutic intervention, social services, training and education, and any other non-criminal justice mechanism that may over the long-term work to eliminate the problem of crime.¹⁶⁰ (This view is sometimes referred to as “harm reduction,” particularly in the context of drug decriminalization.)¹⁶¹ As one proponent of Oregon’s Measure 110 argued, “far from spurring recovery, arrest, incarceration and having a criminal record can exacerbate drug problems.”¹⁶² The argument goes that criminalization has failed to solve the underlying crime problem and that a new, usually public health approach, is needed. So, while drug use or prostitution, say, might not qualify as “licit” conduct, they should be decriminalized to reduce the harm caused by such condemnable behaviors. For example, supporters of Oregon’s Measure 110, discussed previously, persuaded voters to decriminalize the use of hard drugs by employing such harm reduction arguments.¹⁶³ As Mike Schmidt, the Multnomah DA and supporter of drug decriminalization, argued: “What we’ve been doing for the last number of decades has completely failed. . . . Criminalization keeps people in the shadows. It keeps people from seeking out help, from telling their doctors, from telling their family members that they have a problem.”¹⁶⁴ Supporters of Measure 110 argued that removing the criminalization of illicit drug use would cause more addicts to seek treatment, thus reducing the damage caused by drug usage.¹⁶⁵

An anti-criminal justice approach is also a hallmark of progressive prosecutors’ non-prosecution policies that seek to divert offenders into alternative programs for treatment.¹⁶⁶ Prosecutors such as Larry Krasner view punishment as pointless unless they believe it will directly reduce societal harm. For example, Krasner has defended his non-prosecution of illegal gun possession on the basis that: “We do not believe that arresting people and convicting them for illegal gun possession is a viable strategy to reduce shooting.”¹⁶⁷ In other words, for Krasner and those like him, the criminal law should only be enforced if it is instrumental toward a social goal. Under this view, criminal conduct should not be punished simply because it is criminally condemnable.

The anti-criminal justice motivation is also one reason why some support the decriminalization of domestic violence, a policy Buta Biberaj did her best to implement. As one supporter explains:

Other alternatives to prevent and address the harms of domestic violence also exist. Economic interventions could relieve some of the conditions that spur domestic violence. . . . [D]omestic violence correlates with male unemployment. Job training and employment provision programs might do more to prevent intimate partner violence than criminalization has. If prevention is the goal, public health initiatives might serve that function more effectively than criminalization. Criminalization . . . hampers the development, implementation, and evaluation of these types of alternatives. So long as criminal laws continue to exist, criminalization will be the default response that policymakers and anti-violence advocates are loath, even afraid, to abandon. And so long as funding for anti-domestic violence efforts remains focused on the criminal legal system, criminalization will deprive efforts to develop alternatives of needed resources.¹⁶⁸

While some harm-reductionists deny that their non-punishment policies will produce any additional crime,¹⁶⁹ other proponents acknowledge there may be some short-term costs. As John Chisholm, Milwaukee’s progressive DA, admitted: “Is there going to be an individual I divert, or I put into [a] treatment program, who’s going to go out and kill somebody? You bet. Guaranteed. It’s guaranteed to happen. It does not invalidate the overall approach.”¹⁷⁰

Related to anti-criminal justice motivations is the desire to decriminalize criminally condemnable conduct in order to reduce incarceration, because incarceration clearly has negative impacts on the individual offender. Many decriminalization initiatives cite reducing prison populations as their goal. For example, Larry Krasner described one of the main goals of his non-prosecution policies as reducing incarceration: “These policies are an effort to end mass incarceration and bring balance back to sentencing.”¹⁷¹

However, decriminalization is an extremely crude way to reduce prison populations. We strongly agree with efforts to reduce the use of incarceration as a method of punishment, but this goal can be achieved for all but the most serious offenses simply by shifting deserved punishment to non-incarceration forms of sanction, as we have argued elsewhere.¹⁷²

B. The Social Justice Motivation: Using Decriminalization to Reduce Sanctions Against Groups Seen as Oppressed

Many advocates of decriminalization support it as a way to advance equity by eliminating criminal penalties that appear to disproportionately impact certain groups. For example, poor people and racial minorities make up a larger share of criminal offenders than their percentage of the general population, and so they also make up a larger share of arrests, prosecutions, and imprisonments.¹⁷³ It is also often alleged that the justice system is biased in its treatment of such offenders—for example, a Black offender is thought to be more likely to be arrested, prosecuted, and imprisoned than a similar White offender.¹⁷⁴ There is good reason to be skeptical of these claims, although a full analysis of racial disparities in the justice system is beyond the scope of this Article.¹⁷⁵ Regardless of its merits, however, the claim of systemic racism in the justice system is a common theme in justifying decriminalization.

As a result, some activists believe decriminalization is a useful tool to defang a racist and oppressive system. While conduct like theft might still be criminally condemnable, it is worth decriminalizing because criminal penalties for theft fall disproportionately on individuals who are already disadvantaged and discriminated against.¹⁷⁶ Advancing equity was an explicit motivation behind the campaign for Proposition 47 in California,¹⁷⁷ and progressive prosecutors’ justification of their policies in effectively decriminalizing condemnable conduct are typically peppered with justifications based on reducing systemic disparities and oppression.¹⁷⁸

Such motivations may see the criminal justice system’s role as not to do justice for a given crime, but to consider what is equitable for a given offender—based less on their actions than their social circumstances.¹⁷⁹ At its most extreme, this group justice mentality merges with a completely anti-criminal justice philosophy because practically all criminal offenders can be seen as belonging to a societal group victimized in some way by state-sanctioned violence and discrimination.¹⁸⁰ Letting such offenders go unpunished for criminally condemnable conduct may be considered a way of attempting to rebalance the scales of social justice. As one author explains why punishment is not about crime:

On the surface, crime and punishment appear to be unsophisticated matters. After all, if someone takes part in a crime, then shouldn’t he or she have to suffer the consequences? But dig deeper and it is clear that crime and punishment are multidimensional problems that stem from racial prejudice justified by age-old perceptions and beliefs about African Americans. . . . In other words, society chose to use incarceration as a welfare program to deal with the poor, especially since the underprivileged are disproportionately people of color.¹⁸¹

This social-justice motivation has even led to proposed or implemented broad decriminalization of entire types of conduct for certain groups of persons seen as disadvantaged in some way. A 2020 proposal from Seattle’s city council, for example, would have prohibited “prosecution for misdemeanor crimes for any citizen who suffers from poverty, homelessness, addiction, or mental illness.”¹⁸² The law would “effectively legalize an entire spectrum of misdemeanor crimes, including theft, assault, harassment, drug possession, property destruction, and indecent exposure. Criminals must simply establish that they have an addiction, mental-health disorder, or [are] low income in order to evade justice.”¹⁸³ While the proposal did not pass, it was merely a more explicit form of a motivation common within decriminalization: those already disadvantaged by nature or society should not be further “victimized” through criminal punishment.

C.The Moral Superiority Motivation: Believing It Appropriate to Substitute One’s Own (Superior) Criminalization Judgments for Those of the Community

Another common motivation among decriminalization advocates is believing the majority view on criminalization is simply morally wrong and should be replaced by their own morally superior view. For example, Multnomah County DA Mike Schmidt defended his decision to effectively decriminalize rioting in the wake of George Floyd’s death based on his personal support of the motivating cause that he attributed to the rioters. As noted previously, he appeared to believe it would be morally wrong to prosecute individuals protesting (even criminally) what he saw as a societal evil: “We will undermine public safety, not promote it, if we do not take action to bring about immediate change.”¹⁸⁴ Similarly, Chicago DA Kim Foxx’s decision not to prosecute rioters was due to the “righteous anger” she saw as their motivation.¹⁸⁵ San Francisco’s progressive prosecutor, Chesa Boudin, also forged ahead with a series of non-prosecution policies after narrowly winning election to his office in 2019, despite broad community disapproval of his de facto decriminalization policies. While Boudin undoubtedly believed he was implementing morally right policy positions, residents saw things differently, choosing to decisively recall him in 2022.¹⁸⁶ As one San Francisco resident and reporter explained, “yesterday, San Francisco voters decided to turn their district attorney, Chesa Boudin, out of office. They did it because he didn’t seem to care that he was making the citizens of our city miserable in service of an ideology that made sense everywhere but in reality.”¹⁸⁷ Sometimes, progressive prosecutors show a remarkable contempt for contrary community opinions, perhaps stemming from unbridled confidence in the rightness of their own views. LA’s progressive DA George Gascon, for example, responded to critics of some of his lenient policies by stating they were “too uneducated to shut their mouths for once.”¹⁸⁸ Incidentally, LA voters did not take kindly to such views, and Gascon lost reelection in 2024 by a twenty-point margin.¹⁸⁹

Of course, there is nothing wrong with advocating for a change in community views, and as long as decriminalization advocates change public views before actually decriminalizing conduct, they may be helping society. However, when elected officials substitute their personal moral judgements for community views, they are engaging in deeply undemocratic and elitist decision-making, in addition to causing what the public will perceive as failures of justice, which are especially objectionable because they are the product of elitism. Elected officials must recognize their duty in a democratic society is not to be philosopher kings, no matter how tempting that prospect may be. While it is true that moral minorities may actually represent moral progress, it is equally true that they may represent the opposite. Historically, for every brave minority of slavery abolitionists, there have also been “brave” minorities of eugenicists, racists, and would-be genociders eager to impose their views on the criminal law and society. For example, the American eugenics movement, pioneered by intellectuals and elite progressive reformers who derided lawmaking by the people, believed eugenic policies represented the next great moral advance in the early 20th century.¹⁹⁰ Fortunately, they were never able to win over enough of the American electorate to fully implement their vision. The “brave” minority of Nazi eugenicists in Germany eliminated any such democratic constraint.¹⁹¹ Having the criminal law (and government policy more generally) track the views of the community instead of visionary elites helps defend against moral depravity even while sometimes delaying moral progress. The desire to decriminalize for the sake of minority moral beliefs is understandable, but officials in a democratic society must defer to the community they have been elected to serve and represent. If they have a good moral case for decriminalization, they are likely to persuade a majority of society in the end.

Ironically, many of the proponents of minority-view decriminalization furiously oppose other groups holding minority views from attempting to impose their views on the criminal law. For example, many on the left have (rightfully) criticized minorities on the right for attempting to pass extreme abortion criminalization legislation unrepresentative of community views.¹⁹² Additionally, almost everyone would rightfully balk at a hypothetical far-right DA choosing to decriminalize crimes motivated by racism because of his personal belief in the morality of White supremacy. Supporting local officials imposing their minority beliefs on the criminal law is so obviously short-sighted that it is hard to believe any thoughtful person could ever think it appropriate in a democratic system.

D.The Local Superiority Motivation: Believing It Appropriate to Substitute Local Criminalization Judgments for Those of the Larger Constitutionally Empowered Jurisdiction

Finally, when the officials (or sometimes even the population) in a city or county view certain conduct as not criminally condemnable while such conduct is still viewed as criminally condemnable by a clear majority of the state’s population, the local jurisdiction’s officials may rely on a notion of local superiority in making the criminalization-decriminalization decision even though the state constitution unequivocally gives that power to the state legislature. For example, Austin declared itself a “freedom city” in 2018, when the Austin City Council passed a series of measures designed to prevent enforcement of parts of the Texas criminal code.¹⁹³ The Council required police to “avoid arrests” for a variety of lower-level offenses, such as low-level theft and driving without a license or on a suspended license.¹⁹⁴ The goal was to frustrate what Austin lawmakers saw as an overly harsh state criminal code, and within 3 months, Class C misdemeanor arrests in Austin dropped by 63%.¹⁹⁵

The same substitution of local criminalization judgements for those of the broader community may occur between states and the federal government. For example, most of the provisions of California’s state sanctuary law passed in 2018 had majority support in California, even while its de facto decriminalization of illegal entry was opposed by a clear majority of U.S. residents nationally.¹⁹⁶ In the case of illegal immigration, the federal government clearly possesses the constitutional criminalization authority,¹⁹⁷ so an individual state or city’s decision to frustrate that enforcement and effectively decriminalize the conduct is problematic, even if the U.S. Constitution does not require the state to assist federal authorities in the federal law’s enforcement.¹⁹⁸

The Dangers of Local Criminalization Policies.

Substituting local judgements on criminalization for those of the broader community is dangerous when the criminalization authority is constitutionally vested in the broader jurisdiction. Such a local seizure of criminalization authority undermines principles of fairness and equal treatment which require the same standard of criminalization and punishment apply to all people within a jurisdiction. For example, why should a thief in Austin go unpunished while a thief one town over receives punishment for the same offense under the same Texas criminal code? This also creates unfairness for law-abiding residents: why should a store owner receive less protection from the criminal law depending upon city or county borders?

The state (or federal) law is meant to protect and punish equally across the jurisdiction, but patchwork local decriminalization, whether by legislatures or prosecutors, undermines this principle. Local decriminalization decisions made by prosecutors are especially damaging as they also introduce a level of unpredictable whim that undermines the rule of law. The legality principle requires fair notice of what conduct is and is not subject to criminal punishment.¹⁹⁹ But local prosecutorial decriminalization means the de facto law even within the same county is subject to change without notice as prosecutors adjust their charging policies based on the political climate or an election that ushers in a new prosecutor with different political views.²⁰⁰ The result is often a massive change in the treatment of citizens in the same place even with no change in law—the very definition of the “rule of the individual” as opposed to the rule of law.

Battles over jurisdictional control of criminalization are becoming more common, with various local officials looking to effectively decriminalize gun crimes or abortion crimes in opposition to state laws.²⁰¹ There will inevitably be tensions between local and state or state and federal communities, but those disputes in a democracy need to be resolved by democratic action at the constitutionally appointed criminalization level, rather than being resolved by local usurpation of the larger community’s criminalization-decriminalization authority.

The latter approach will only ensure a loss of system credibility at all levels. Even if the local jurisdiction’s residents support the local decriminalization in question, it would be no surprise if this local decriminalization prompted them to see the broader jurisdiction’s criminal law as illegitimate. If it is appropriate to ignore the broader community’s criminalization-decriminalization judgments on one specific issue, why not on other issues as well? Even residents in the broader jurisdiction may lose confidence in their criminal law when they see how easily and frequently it is flouted by local jurisdictions. De facto decriminalization at the local level may also prevent pressure from building to modify the criminalization at the appropriate state or federal level, thus entrenching patchwork criminalization and undercutting the purpose of having a state or federal criminal code in the first place. Abiding by the broader jurisdiction’s criminalization decisions seems wiser because it avoids these and other societal costs, many of which are discussed in the following Part.

III. The Societal Costs of Decriminalizing Condemnable Conduct: Miscalculating the Balance of Societal Interests

Decriminalizing conduct that a clear majority of the community sees as condemnable comes with a host of destructive costs commonly ignored by the backers of such decriminalization. Some of those costs are immediately apparent, as in the instant loss of deterrent effect, as discussed in Section III.A below. Soon after, the loss of incapacitation of repeat offenders starts taking effect, as rioters, looters, vandals, organized thieves, and others who would have been arrested and prosecuted for their initial offenses are free to continue their victimizations uninterrupted, now increasingly confident that they will not be arrested or prosecuted, as discussed in Section III.B.

More damaging perhaps than even the immediate societal costs of increased crime from lost deterrence and incapacitation is the long-term damage from undermining the criminal law’s moral credibility with the community by failing to criminalize and punish what is seen as criminally condemnable conduct, discussed in Section III.C, as well as the long-term damage from undermining the criminal justice system’s “legitimacy” in the eyes of the community by allowing the justice system to be governed by ideological bias rather than a commitment to a system of fairness and equality for all, a societal cost discussed in Section III.D.

What is perhaps most tragic about the unnecessary criminal victimizations that these policies cause is that the costs are borne disproportionately by the most vulnerable, as Section III.E documents. It is primarily poor and minority communities that suffer the increased victimizations, not the elites who push such policies, often in the name of equity.

As Part II discussed, some supporters of decriminalizing criminally condemnable conduct may concede the resulting costs of temporarily increased crime but argue that these short-term societal transition costs are worth the long-term benefits that they foresee, such as the benefits of replacing the criminal justice system with medical, psychological, and social services, which they believe will, in the long run, produce a society with less crime. In other words, they see the short-term costs as justified by the long-term gains.

Is it true that the short-term costs of increased crime victimizations borne disproportionately by vulnerable minority communities are justified by long-term societal benefits? We think not. As Section III.F explains, the claimed long-term benefits used to justify tolerating the additional victimizations are at best speculative, with no precedent in human history. There has never existed a society that did not have a functioning criminal justice system of rules and punishments.²⁰² Attempting to replace punishment with therapeutic intervention (as opposed to supplementing punishment with treatment) goes against the most basic human instincts. Paying destructive costs now for a speculative vision unsupported by human nature and history does not reflect a reasonable balancing of societal costs and benefits.

A.The Immediate Societal Cost of Reduced Deterrence

Decriminalizing conduct tends to lead to more of that conduct, which is disturbing when that conduct is still viewed as criminally condemnable by the community. It requires a suspension of common sense to believe the possibility of punishment for a behavior can be eliminated or drastically reduced without having some effect on the occurrence of that behavior. Indeed, the decriminalization policies discussed in this Article had just such an effect, often producing sizable or even shocking increases in lawbreaking. Theft increased statewide after California’s Proposition 47, with shoplifting surging by as much as 50% in some places.²⁰³ Drug usage increased after Oregon’s Measure 110, with overdose deaths reaching thirteen times the national average.²⁰⁴ Shootings reached record highs after Larry Krasner’s non-prosecution of gun crimes in Philadelphia, with homicides rising 78% in 2021 compared to when Krasner was elected in 2017. Non-fatal shootings also surged.²⁰⁵ Practically all criminal activity surged in Austin after it effectively deleted parts of the Texas criminal code.²⁰⁶ The violent crime rate in Austin was up almost 30% in 2021 compared to 2018.²⁰⁷ The number of homicides also rose 178%.²⁰⁸ A citizens group reported in 2021 a 38% increase in aggravated assaults, an 87% increase in burglaries, and a 124% increase in auto thefts since 2019.²⁰⁹

While defenders of these and other de facto decriminalization policies contrary to community views often quibble over the exact size of crime increases and try to introduce doubt as to what caused them, it requires ideological gymnastics not to recognize that offenders and potential offenders respond to incentives. If the legal consequences from stealing $950 worth of merchandise becomes at most the equivalent of a parking ticket and one is almost never caught, how could this not encourage more theft? If potential offenders know that the local DA is literally called “Let ‘Em Out Larry” on the street due to not prosecuting most criminal conduct, how could this not embolden offenders to carry weapons and commit other crimes they rightly believe are unlikely to lead to prosecution even if detected?²¹⁰ It should not take a study to prove the point that removing criminal consequences for a behavior will make that behavior more likely, but, of course, studies have found these effects.²¹¹

Recognizing the crime-increasing consequences of particular non-prosecution policies should in no way be partisan. Liberal Black mayors such as San Francisco’s London Breed and New York City’s Eric Adams have attacked non-prosecution policies, showing that criticism is hardly a partisan rightwing reaction.²¹² Moreover, some progressive prosecutors have reversed some of their de facto decriminalization policies in the wake of crime surges, suggesting even they understand the crime consequences.²¹³

B.The Immediate Societal Cost of Reduced Ability to Incapacitate Repeat Offenders

In addition to reducing deterrence, de facto decriminalization increases the decriminalized conduct (and overall crime) through reducing the incapacitation of criminal offenders. It is a well-known fact in criminology that a small percentage of criminals commit a large percentage of crimes,²¹⁴ meaning that much, if not most, crime is a problem of serial offenders. For example, the Charlotte-Mecklenburg Police Department found that “repeat shoplifting offenders account for 40.1% of shoplifting incidents where a suspect was identified.”²¹⁵ Similarly, “[j]ust 327 serial shoplifters accounted for a third of the more than 22,000 retail theft arrests made” by New York City police in 2022.²¹⁶ A combination of New York’s bail policies and New York City’s progressive prosecutors’ non-prosecution policies allowed such thefts to thrive because the thieves were not incapacitated. While an individual crime is unlikely to lead to punishment, a serial offender normally plays the odds until capture and punishment, which often takes the form of incarceration, thus incapacitating the offender from further crime for a period. But when even capture leads to no punishment, serial offenders can continue their busy lives of crime uninterrupted. Since frequent offenders tend not to specialize,²¹⁷ choosing to commit a range of crimes from minor to serious, decriminalizing lower-level crimes removes the possibility of incapacitating many serious offenders before they commit more or worse crimes. For example, one study tracked what happened to 231 defendants charged with a firearms violation in Philadelphia in July 2019. 16 months later, owing much to Krasner’s de facto decriminalization, 176 had been freed, and 51 “were arrested again and charged with more crimes that included gunpoint robberies, armed carjackings, rape, attempted murder, as well as a half-dozen murders.”²¹⁸ Repeat offenders will go on longer strings of offenses when the probability of punishment is decreased or eliminated—a fact that should be obvious to any good-faith observer.

C.The Long-Term Societal Cost of Reducing Criminal Law’s “Moral Credibility”

Aside from immediate reductions in deterrence and in the ability to incapacitate repeat offenders, decriminalization contrary to community criminalization judgements may have an even greater long-term cost by undermining the moral credibility of the criminal law through exposing the community to what they perceive as regular and intentional failures of justice. Reducing the credibility of the law decreases compliance, increases resistance and subversion, sparks vigilantism, and degrades the system’s ability to shape people’s internalized norms.²¹⁹ Unlike what some decriminalization advocates seem to assume, people do not simply accept what the law says without checking it against their own intuitions of justice.²²⁰ As a result, decriminalizing conduct that a clear majority of the community sees as criminally condemnable simply undermines the criminal law’s reputation as a reliable moral authority that should be obeyed. If the criminal law corrupts its “brand,” the clarity and influence of what it means to label something as “criminal” is lost. This is common sense, but these dynamics have also been confirmed by a host of controlled laboratory studies as well as shown in natural experiments. These studies and experiments, which have been described in detail elsewhere,²²¹ support three key conclusions:

Ordinary People Have Strong and Nuanced Shared Intuitions of Justice Based on Desert, Which They Believe the Criminal Justice System Should Uphold

Empirical studies show that ordinary people think of criminal liability and punishment in terms of desert—offenders should get the punishment they deserve rather than the punishment that might best deter others or best incapacitate dangerous offenders.²²² While the public believes deterrence and incapacitation is a general goal of having a criminal justice system on an abstract level, when confronted with actual case examples, people overwhelmingly assign punishment based on desert. In fact, people who self-report a preference for non-desert distributive principles still favor retribution in their actual judgements.²²³ This finding is particularly noteworthy as regards decriminalization, as it shows how some community members can paradoxically hold two views—a California or Oregon voter might intellectually believe criminal punishment should be assigned according to principles of harm reduction leading to decriminalization, but they might still intuitively feel the conduct being decriminalized deserves criminal punishment. An academic may support de facto decriminalizing theft, but when her or her friend’s purse is snatched and the thief suffers no consequences, she may still feel justice has failed.

Additionally, laypeople’s intuitions of desert are closely correlated to one another, allowing the criminal law to use those shared intuitions as the basis of a criminal code. For example, one study asked participants to rate the seriousness of 51 offenses relative to bicycle theft, and the correlation was around 0.9 across various demographics, showing an overwhelming societal consensus about what conduct is criminal and how serious that criminality is.²²⁴

Not only do people have shared intuitions about what conduct calls for criminal punishment, they also have a strong innate desire to see it done, even if they have no personal interest in the case.²²⁵ Studies have shown that even preverbal infants display a third-party desire to punish offenders—demonstrating just how deep and instinctual the human desire for desert-based justice is.²²⁶ A justice system that fails to meet that demand will lose credibility, as the next subsection shows.

When Community Members See the Criminal Law Regularly Deviating from Their Shared Intuitions of Justice, the Moral Credibility of the Law Declines

This claim is rather intuitive, but it is also supported by clear empirical evidence.²²⁷ For example, the next subsection presents a variety of studies in which experimenters varied the subjects’ perception of the criminal law’s moral credibility in order to observe the resulting shift in the subjects’ willingness to comply with the criminal law.²²⁸ How do researchers vary subjects’ sense of the criminal law’s moral credibility? Answer: By exposing subjects to more (or fewer) cases where the criminal law’s results conflict with the subjects’ own sense of justice, or by exposing subjects to cases where the conflict with their intuitions of justice is greater (or lesser).²²⁹ This standard experimental method has been shown to work reliably and predictably.²³⁰ The greater and more frequent the conflict with subjects’ justice judgments (either in the form of perceived injustices or justice failures), the greater the loss of the justice system’s moral credibility in their eyes.²³¹ Even beyond this common mechanism for manipulating the criminal justice system’s moral credibility with subjects, studies of actual participants in the justice system have shown the same dynamic.²³²

These empirical studies reinforce the notion that regular conflicts with community views as to the just allocation of criminal punishment will reduce the criminal law’s moral credibility.²³³ It is widely acknowledged that prevalent injustices (instances of over-punishment or punishing the innocent) erode the moral credibility of the justice system, but studies show ordinary people care as much about preventing justice failures (where the guilty escape their deserved punishment) as they do about preventing injustices (such as false convictions), unlike many academics who pay dramatically more attention to wrongful punishment.²³⁴

As the Moral Credibility of the Law Declines, Its Crime-Control Effectiveness Also Declines

If a criminal law is widely viewed as unrepresentative of community beliefs, this is likely to negatively influence the community’s deference to the law—a fact that hardly needs stating. In what world would citizens be indifferent to the law’s poor performance in doing justice? The evidence from history shows that when disillusionment with the criminal law sets in, lawbreaking rises.²³⁵ This is because compliance with the law is generated in significant part from the law’s reputation as a reliable indicator of what society genuinely condemns.²³⁶ If the law is seen as unrepresentative of society’s justice judgements, then its ability to harness the powerful forces of social influence are correspondingly reduced.²³⁷ As a result, decriminalization of select conduct can reduce the entire criminal law’s ability to gain compliance—a hidden cost to decriminalization that goes far beyond merely increasing the decriminalized conduct itself. This disillusionment-noncompliance dynamic can be seen in numerous controlled studies and natural experiments.²³⁸

Consider just two natural experiments where a failure of over or under criminalization reduced the criminal law’s moral credibility and compliance:

Gilded Age New York City

At the end of the nineteenth century, the New York City legislative process was notoriously corrupt: even valuable and legitimate legislation could not be passed unless the right political players were paid off.²³⁹ The result was a criminal law that failed to punish the full range of conduct that social mores at the time saw as condemnable, such as pornography, abortion, and gambling.²⁴⁰ As the criminal law came to be seen as increasingly out of touch with community norms, and unable to respond to criminally condemnable conduct, crime rates escalated—even for those crimes that were still enforced.²⁴¹ Street gangs proliferated and even shoplifting among middle-class women rose, as breaking the law was viewed as less serious. With some “crimes” being effectively legal, all crimes seemed more permissible.²⁴²

American Prohibition

In 1920, Congress criminalized the sale of alcohol despite the fact most Americans did not view alcohol as a matter for the criminal law. Demand for alcohol remained high, and lax or corrupt enforcement contributed to a sense that the law was illegitimate. As trust in the law eroded, Americans increasingly violated the law. Most importantly, the disillusionment tainted not only the alcohol-prohibition rules, but it also reduced compliance with criminal law rules generally,²⁴³ including those unrelated to alcohol.²⁴⁴

In addition to these historical case studies, social science research suggests that the relationship between the law’s moral credibility and community deference and compliance is widespread and nuanced.²⁴⁵ Even small incremental losses in moral credibility can produce corresponding incremental losses in deference and compliance.²⁴⁶ Consider a 2010 study using a within-subjects design in which participants were asked questions about how they related to the justice system, such as questions about their willingness to report crimes, assist justice system officials, and view the law as a reliable moral guide. After baseline responses were collected, subjects were then disillusioned by exposing them to real accounts of the system’s failures of justice and injustices. Retesting revealed the measures of deference, compliance, and internalization of norms had decreased among the disillusioned subjects.²⁴⁷ This finding is particularly important because it indicates that no matter the current state of a criminal justice system’s moral credibility with an individual or the community, any incremental reduction in credibility (such as by decriminalizing only seemingly minor condemnable conduct) can produce an incremental reduction in deference, and any increase can produce an increase in deference.

Reducing the moral credibility of the law not only makes people more likely to engage in general criminal conduct, but it also creates another cost through sparking vigilantism because community members increasingly believe justice will not be served by the system.²⁴⁸ Some of those who care strongly about doing justice sometimes turn to appointing themselves judge, jury, and even executioner when the criminal justice system seems unable or unwilling to do justice.²⁴⁹ De facto decriminalization contrary to community views can make outraged citizens turn to violence, and even murder. For example, when Dallas County DA John Creuzot announced a non-prosecution policy of theft under $750 dollars in 2019, there was a predictable surge in shoplifting.²⁵⁰ Dallas residents became increasingly angry as they watched more store items being locked behind glass even as no thieves were locked behind bars. In December 2022, one Dallas resident, Kevin Jacobson, had had enough. When he saw a thief fighting with store clerks, he ordered the clerks to move and gunned down the shoplifter in an act of vigilante “justice.”²⁵¹ Such disproportionate violence is a hallmark of vigilantism, which despite being romanticized in popular culture, only contributes to a decline in the law’s moral credibility by showing the justice system has lost its monopoly on criminal punishment.²⁵²

D.The Long-Term Societal Cost of Reducing the Criminal Justice System’s “Legitimacy”

Another long-term societal cost of some decriminalization may be reducing the justice system’s reputation for fair adjudication—what has been termed the system’s “legitimacy,” a related concept to the system’s moral credibility discussed in the previous Section. While moral credibility refers to the system’s reputation for just results, legitimacy refers to the system’s reputation for a fair adjudication process. Tom Tyler and other scholars have shown that a decline in the system’s reputation for fairness and professionalism in adjudication reduces compliance, deference, and acquiescence.²⁵³

Their research shows people are more likely to defer to the decisions of legal authorities when the decision-making process appears to lack bias, focuses on objective facts, recognizes citizens’ rights, and treats people with dignity.²⁵⁴ The authors also found that “[People] depend heavily upon their inferences about the intentions of the authority. . . . If the authorities are viewed as having acted out of a sincere and benevolent concern for those involved, people infer that the authorities’ actions were fair.”²⁵⁵

The justice system’s reputation for a fair and honest adjudication process can be undermined by de facto decriminalization of conduct the community sees as criminally condemnable, particularly de facto decriminalization of conduct committed by certain political or ideological groups undertaken because the criminal justice officials share the perceived ideological view of the offenders. As noted previously,²⁵⁶ prosecutors have at times chosen to decriminalize conduct only for certain groups, as with the selective decriminalization of rioting in 2020, but this appears to violate fairness in adjudication and can do significant damage to the justice system’s legitimacy, at least among those members of the public who are not part of the favored group. This is likely reflected by surveys showing Republican confidence in the justice system fell sharply after 2020. In June 2020, 38% of Republicans had “a [g]reat deal” or “[q]uite a lot” of confidence in the justice system.²⁵⁷ By June 2021, just 17% did.²⁵⁸ Notably, the share of Democrats having “a [g]reat deal” or “[q]uite a lot” of confidence in the justice system barely changed,²⁵⁹ suggesting the fall in Republican confidence was not simply due to a change in presidential administration. Donald Trump had also not been indicted by June 2021,²⁶⁰ meaning a likely culprit for the decline in conservative confidence was the perceived politically motivated decriminalization of rioting in 2020.

The costs of such lost legitimacy should not be ignored, regardless of one’s political persuasion. For example, many Democrats might feel unconcerned by prosecutors refusing to apply the law to protestors or rioters acting for a “good cause” such as racial justice, but they should recognize that such a decision makes it more likely that those on the political right will feel justified in rioting or supporting criminality perceived as advancing a rightwing cause. In fact, one might reasonably speculate that the disturbingly high amount of support shown for January 6th rioters among conservatives is likely due in no small part to the justice system’s legitimacy being degraded. The attitude of “if they can do it, why shouldn’t we” is a destructive but inevitable consequence of biased criminalization and punishment decisions.

More generally, de facto decriminalization policies implemented by prosecutors can undermine system legitimacy by replacing the consistent and impartial application of the law with the personal beliefs of the prosecutor. Even if a citizen disagrees with the criminal law, they can at least respect its impartial application across a jurisdiction as being in some sense “fair.” However, when prosecutorial decriminalization leads to a patchwork criminalization scheme dependent on the personal or political beliefs of powerful individuals, this sense of a fair process is undermined. Upholding the “rule of law” as opposed to the “rule of the individual” is important for maintaining the system’s legitimacy.

The larger point is that when the criminal law fails to do justice as the community sees it, the result is numerous serious societal costs, ranging from eliminating deterrence and incapacitation for the specific conduct to increasing crime generally through eroding the moral credibility and legitimacy of the law. These costs must be included in any cost-benefit calculation surrounding decriminalization, but they are too often ignored by elitist policymakers unconvinced or unaware of basic facts of human nature and basic principles of criminal law. The fact that policymakers ignore these costs is all the more unconscionable when one realizes, as the next Section shows, that the costs of increased crime are borne disproportionately by vulnerable minorities—not the privileged proponents of decriminalization far removed from the consequences of their policies. It is one thing to support decriminalization from the safety of an ivory tower or gated neighborhood—it is quite another to experience its effects in one’s daily life.

E.Societal Costs of Increased Crime Are Disproportionately Borne by Vulnerable Minorities

The increased crime sparked by decriminalizing condemnable conduct is all the more tragic and counterproductive to the aims of many decriminalization efforts due to its disparately large impact on racial minorities and the economically disadvantaged. This disparate impact plays out in several ways.

First, the violent crime rate is disproportionately higher in poor neighborhoods,²⁶¹ and the people who live in those areas are often racial minorities. Thus, the criminogenic effect of lost deterrence, incapacitation, moral credibility, and legitimacy is highest in these neighborhoods and disproportionately suffered by minorities. For example, several studies, including one by the Department of Justice, found that from 2008 through 2012, Americans living in households at or below the Federal Poverty Level (less than $15,000 for a couple) had more than double the rate of violent victimization as persons in higher-income households ($75,000 or more).²⁶² In 2020, one-third of violent crimes reported to police had a Black victim—almost twenty percentage points higher than the Black share of the population.²⁶³

But the difference in victimization rates is only part of the problem. The crime clearance and conviction rates are also lower, meaning that criminals are more likely to get away with their crimes, thus leading to more crime through failing to incapacitate dangerous offenders, failing to deter would-be offenders, and failing to support the public’s confidence in (and thus cooperation with) the justice system. Crime clearance rates are significantly lower in poorer areas with high racial minority populations than in White middle-income and high-income areas.²⁶⁴ For example, one analysis of fifty-two of the United States’s largest cities found that police arrested someone in 63% of homicides that killed White victims, compared with just 47% of homicides of Black victims, a sixteen-percentage-point difference in clearance rates.²⁶⁵ Data from Chicago indicates that homicide cases involving a White victim are solved 47% of the time, cases involving a Hispanic victim are solved 33% of the time, and cases involving a Black victim have a clearance rate of a mere 22%.²⁶⁶ In other words, poor and minority Americans are victimized at higher rates and with greater impunity than other Americans, thus leading to a vicious cycle of more crime and less justice.

De facto decriminalization policies that incentivize gun violence, such as Larry Krasner’s non-prosecution of many gun crimes in Philadelphia, thus hurt minorities the most. For example, over 75% of Philadelphia’s homicide victims are Black, and Black Philadelphians are about five times more likely to be victims of gun violence than White residents—meaning the cost of Krasner’s policies is borne largely through an increase in the unsolved murder of Black lives.²⁶⁷ If the slogan “Black Lives Matter” is to be taken seriously, then policymakers must consider the consequences, and not merely the intentions, of their decisions. Indeed, even those generally supportive of the progressive prosecutor movement have cautioned against ignoring the racial injustice of underenforcement (and thus a lack of protection) in minority communities.²⁶⁸

Additionally, specific decriminalization, such as decriminalizing theft, has a disproportionate impact on poor residents who may end up living in “food deserts” because the stores in the area have closed or because they are paying more for basic items due to the costs of increased shoplifting. While food deserts are largely unknown in wealthier neighborhoods, they can have devastating impacts on already disadvantaged neighborhoods. As Ruth Jones Nichols, president and CEO of a regional food bank in Virginia explains, Black people “will be disproportionately impacted by having this new food desert in our community, and we can’t ignore that reality. . . . This isn’t just a food access or social justice issue. It really is a racial justice issue.”²⁶⁹ While food deserts can have many causes, tolerating shoplifting is a significant contributing factor in many communities.²⁷⁰

The de facto decriminalization of rioting in 2020 by authorities who sought to show solidarity with the rioters’ perceived political cause had the actual effect of exposing minority neighborhoods and minority-owned stores to the greatest harm, as authorities allowed rioters to demand justice for George Floyd by day while looting and burning Black-owned businesses at night.²⁷¹

F.Balancing Societal Costs and Benefits in Decriminalizing Criminally Condemnable Conduct

As Parts I and III document, the effect of decriminalizing conduct viewed as criminal by the community has not been a reduction in such conduct but rather a proliferation of the damage caused by it. Nor is this simply a matter of a few mistakes being made in implementation: the theory behind replacing criminal punishment with treatment ignores the human demand for justice documented previously.²⁷² Ignoring that demand will lead to the entire criminal law’s moral credibility eroding, thus replacing any rehabilitated offenders with new offenders inspired to commit crimes by the breakdown in respect for the law, in addition to crime increases caused by the loss of deterrence. An easy thought experiment illustrates the point: Imagine murderers could be rehabilitated with 100% effectiveness after undergoing one therapy session. Would replacing current criminal punishments for murder with this mandatory therapy session reduce murder or not? The answer is obviously no. While there would be no repeat murderers, far more people would be inspired to murder from both the loss of deterrence and the sense that the criminal law no longer saw murder as conduct that deserves punishment. Indeed, general lawbreaking would likely rise as people perceived the criminal law as being outrageously out-of-touch with justice (if the law thinks murder deserves therapy, why not steal—it’s not even as bad!). Of course, the results in the real world are even worse: most therapeutic and rehabilitative interventions for criminal offenders have dismal success rates.²⁷³ As a result, replacing criminal punishment with therapeutic intervention will not even eliminate repeat offenders, but it will increase crime through decreasing deterrence and the law’s credibility. These facts explain why there has never been a successful abolition of criminal punishment in any human society, despite a number of small experimental societies attempting such a “progressive” reform.²⁷⁴

Another claimed benefit of decriminalization contrary to community views is increasing equity by reducing the punishment of poor, minority, or other disadvantaged offenders.²⁷⁵ However, as the previous Section shows, the costs of the resulting increased crime fall disproportionately on disadvantaged communities (such as poor people and racial minorities), thus actively decreasing equity.²⁷⁶ Some proponents of decriminalization seem to make the bizarre, and implicitly racist, assumption that minority communities are best-served by prioritizing the well-being of minority offenders over the well-being of innocent minority victims.²⁷⁷ But, for example, what is best for “the Black community” is not necessarily best for “Black criminals” despite some activists seeming to equate the two in a deeply disturbing and offensive manner. Most crime is intraracial, meaning that refusing to punish minority offenders for the sake of “equity” is actually refusing to grant justice to minority crime victims and protection to innocent minority communities.²⁷⁸

When one weighs the costs of decriminalization contrary to community views against the proposed benefits, the balance of interests clearly favors adhering to the community’s criminalization judgements. If decriminalization really is the correct course of action for society, then reformers ought to actively work to persuade the community that the conduct in question ought not be seen as criminal—rather than trying to force that view upon them with all its societal costs.

IV. Equal Application of these Principles to the Reverse Situations: Demanding Broader Defenses and Mitigations and the Decriminalization of Conduct Not Seen as Condemnable by the Community

The principles discussed in Part III need to be applied broadly to the full range of reverse situations to ensure the criminal law tracks the community’s nuanced justice judgements. As Section IV.A below explains, criminalizing conduct in line with community judgements must be supplemented by recognizing sufficiently broad defenses and mitigations reflective of community views, which the current criminal law does not do. On the other hand, as Section IV.B discusses, there are limits to the appropriate breadth of excuse defenses, and those limits do not extend to such things as recognizing a “rotten social background” defense or similar such ideologically based defenses, as some have argued for.

The need for a broad application of the principles in Part III also applies to a different kind of reverse case. While it is essential for society to avoid decriminalizing conduct seen as criminally condemnable, it is equally true that society should stop criminalizing conduct that the community no longer sees as condemnable, a problem discussed in Section IV.C.

A.Enlarging Defenses and Mitigations to Match Community Views

One reason some well-intentioned people might support decriminalization contrary to community views is they see it as a utilitarian way to avoid injustices where the system over-punishes.²⁷⁹ Such thinking may see decriminalization leading to some failures of justice but avoiding enough injustices to make it worth it. It is certainly true that if one is serious about the central importance of doing justice, one must be as careful to avoid injustice as to do justice. But instead of blanket decriminalization contrary to community views, it makes more sense to pursue expanding defenses and mitigations to avoid injustices under the current criminalization. Just as the criminal law must not decriminalize conduct that the community thinks is criminally condemnable, it must also strive to recognize a full range of defenses and mitigations where the community’s shared intuitions of justice would hold an offender blameless, or less blameworthy, for their criminalized conduct. Empirical research suggests that current law falls short in this respect with regard to a wide variety of criminal law doctrines.²⁸⁰

First, consider the matter of formal legal defenses. As one of us has detailed elsewhere, modern American criminal codes based upon the American Law Institute’s Model Penal Code have appropriately broadened the formulation of justification and excuse defenses beyond those recognized at common law.²⁸¹ Unfortunately, a quarter of the states sat out the modern recodification movement of the 1970s and 1980s and therefore have “pre-modern” criminal codes that commonly are inadequate in recognizing a full range of general defenses.²⁸² And even many Model Penal Code jurisdictions have rejected the Code’s modern formulations in favor of retaining the common law rules.²⁸³ We would urge a reconsideration of these decisions that leave the formulation of general defenses too narrow to fully avoid unjust punishment under the community’s intuitions regarding exculpation.

While fully adopting the Model Penal Code’s defenses would be a step in the right direction, even the Model Penal Code fails to fully appreciate the breadth and nuance of ordinary people’s assessment of what defenses may remove the blameworthiness for criminal conduct. For example, consider community views on three kinds of situations in which an individual ought to have a justification for the use of force: when the force is used in self-defense, in defense of property, or to apprehend a person fleeing from a crime he has committed. Studies show that the community judges that these justifications are more compelling than what legal codes are willing to grant.²⁸⁴ Respondents frequently assign no liability in cases to which the Model Penal Code attaches liability. Even when respondents assign liability, they typically assign considerably less punishment than would be suggested by criminal codes.²⁸⁵

Similarly, research has shown that ordinary people would support a significant expansion of disability excuse defenses, far beyond what the current law allows.²⁸⁶ The disability caused by mental incapacity is recognized by people as a valid reason to exculpate an offender, with people formulating mental incapacity in a way that recognizes both a control and cognitive deficit; people seem to judge that dysfunction of either type is a valid trigger for exculpation. The greater the dysfunction, the greater the likelihood of a defense. And people seem satisfied with a substantial rather than a complete dysfunction as establishing exculpation.²⁸⁷ These results suggest states should adopt a considerably broader insanity defense than is recognized by most criminal codes in the U.S. today. The same is true for the excuse defense of involuntary intoxication. It is commonly analyzed in legal codes on similar principles to the ones used for the analysis of mental illness defenses, and ordinary people agree that equating the two is generally appropriate.²⁸⁸ But since criminal codes’ current recognition of mental-illness-based defenses is more limited than public intuitions,²⁸⁹ the same is true of the involuntary intoxication defense.

While some progressive activists mistakenly assume that relying upon community views would necessarily produce an unforgiving draconian criminal law,²⁹⁰ the empirical evidence suggests otherwise, as illustrated by the above discussion of justification and excuse defenses. There is clearly significant room for expanding criminal defenses to match public views, thus adding more nuance to current criminalization and punishment practices without generating the failures of justice inherent in blanket decriminalization or anti-criminal justice policies.

B.The Proper Limits of Exculpation: Rejecting a “Rotten Social Background” Defense

While the criminal law ought to embody a far-reaching and nuanced assessment of an offender’s blameworthiness, there are important limits to doctrines of exculpation. As with criminalization-decriminalization decisions, legal defenses and mitigations must reflect the community’s shared intuitions of justice rather than the ideological preferences of a minority, as seems to be the case, for example, in proposals to recognize an excuse defense for having a “rotten social background.”²⁹¹

It should be no surprise that many of the decriminalization motivations discussed in Part II were at work in the proposal and promotion of this defense. While some academics and activists may continue to support recognition of such a defense,²⁹² no legislature or judicial system has yet done so, probably due to fear of triggering the destructive societal costs, reviewed in Part III, of generating increased crime and lost credibility in the eyes of the community. A system that recognizes a “rotten social background” defense would quickly sacrifice its moral legitimacy with the community and lose its ability to harness the powerful forces of social influence, to say nothing of the loss of deterrence and incapacitation such a defense would cause.

Traditional excuse theory, reflected in the excuses of essentially all American jurisdictions, provides an excuse upon the satisfaction of two requirements: (1) a disability must cause (2) a recognized excusing condition.²⁹³ In the excuses of insanity and involuntary intoxication, for example, (1) a mental disease or defect or involuntary intoxication must cause (2) the offender at the time of the offense to suffer sufficient cognitive or control dysfunction so as to be unable to sufficiently understand or control their offense conduct.²⁹⁴ The first element, a disability, requires a real world abnormality or dysfunction. The second element, a resulting excusing condition, requires a normative judgment that the extent of the dysfunction is sufficiently severe to render the offender blameless for their conduct.²⁹⁵ To give another example, the duress excuse requires that the offender (1) committed the offense under the effects of duress or coercion and (2) that the coercion, in the words of the Model Penal Code, was such that “a person of reasonable firmness in [the offender’s] situation would have been unable to resist.”²⁹⁶

To obtain a defense, it is obviously inadequate to show simply that the offender was acting under some coercion or had some mental illness or was involuntary intoxicated to some extent. An excuse is merited only if the extent of the resulting dysfunction meets a critical level: such that the actor could not reasonably have been expected to have remained law-abiding. This is true even if the disability is a “but for” cause of the offense. The offender who steals perfume from the department store because his girlfriend threatened to break up with him if he did not may well be able to claim that he would not have committed the offense but for the coercion, yet no one would seriously consider that the effect of the coercion was sufficient to merit an excuse. The same is true of the man who is involuntarily intoxicated by his friends and, in that state, has non-consensual intercourse with a semi-conscious woman. He may well be able to honestly claim that he would not have committed the crime but for his involuntary intoxication, but whether he is entitled to an excuse requires us to know more about the actual effects of the involuntary intoxication on him at the time of the offense conduct.²⁹⁷ Was the effect simply a pleasant buzz and a minor loosening of restraints? Could he reasonably have been expected to have avoided the offense conduct despite the involuntary intoxication? Even if the offender would not have committed the offense but for the disability, he does not necessarily merit an excuse. The extent of the dysfunction—the extent of cognitive or control impairment—must be shown to have been sufficiently severe as to render him blameless for his offense conduct.²⁹⁸

Before Judge Bazelon’s support for a “rotten social background” defense in the Alexander case, he supported the adoption of the Durham “product test” for insanity, under which an offender is to be given an insanity defense if he would not have committed the offense but for his mental illness.²⁹⁹ But that formulation of the insanity defense stands in direct conflict with the standard requirements for modern excuses by leaving off the second element for an excuse: the requirement that the disability (such as mental disease or defect) cause a sufficiently dysfunctional effect so as to render the offender blameless (as opposed to the disability merely being a contributing cause of the conduct). By dispensing with the excusing condition requirement, Bazelon’s theory of excuses would seem to provide a defense to the mildly coerced perfume thief and the involuntarily intoxicated rapist, a difficult position to sustain.

In United States v. Brawner, the D.C. Circuit rejected Bazelon’s Durham arguments, for predictable reasons similar to those above.³⁰⁰ The blamelessness that underpins an excuse defense does not derive from the bare existence of an actor’s disability or even from the fact that the disability may influence the actor toward the violation. The conclusion of blamelessness comes from the existence of the excusing condition—the finding that the effect of the disability on the actor was so severe that he could not reasonably be expected to have remained law-abiding.

Judge Bazelon repeated his error in United States v. Alexander, in which “rotten social background,” rather than mental illness, was said to have caused the offender’s offense conduct.³⁰¹ In that case, a group of unarmed uniformed marines had stopped at a hamburger shop. Alexander began staring at the marines, and when one of the marines returned the stare, Alexander approached and confronted them, leaning in and poking one in his name tag, calling them to come outside. When words were exchanged, Alexander and co-defendant Murdock each pulled a handgun and began firing into the group, killing two of the marines.³⁰²

Murdock’s claim was that he should be excused because his rotten social background (“RSB”) had caused his offense conduct.³⁰³ This is similarly the thrust of the rationale for an RSB excuse offered by some scholars:

An environment of extreme poverty and deprivation creates in individuals a propensity to commit crimes. In some cases, a defendant’s impoverished background so greatly determines his or her criminal behavior that we feel it unfair to punish the individual. . . . [B]lame is inappropriate when a defendant’s criminal behavior is caused by extrinsic factors beyond his or her control.³⁰⁴

There is good evidence that a rotten social background can have potentially significant effects on a person’s behavior. Murdock grew up nearly penniless in the violent, chaotic Watts section of Los Angeles. He was not responsible for being born into the situation. He had no obvious or easy means of escaping from it. On the other hand, most people who grow up in such circumstances do not become criminals.³⁰⁵ That is, even admitting that environment can seriously influence the development of personality, the strength of that influence to committing the offense at hand is at best unclear. But most importantly, even if it could be shown that Murdock’s rotten social background was a but-for cause of his shooting the marines, such a but-for cause by itself is insufficient for excuse, just as it is in the insanity (or duress or involuntary intoxication) situation. To qualify for an excuse—to be blameless for the offense—would require Alexander to show that the overwhelming effect of the RSB was such that he could not reasonably have been expected to not shoot the marines.

Indeed, one could argue the case in Alexander does not even meet Bazelon’s watered-down “product test” requirement, or at least not to an extent that any criminal justice system would want to use it as a basis for excuse. “Poverty causes crime” is a favorite mantra among many activists and academics, and it does seem to be wise crime-control policy to shape society to minimize rotten social backgrounds.³⁰⁶ But there is little empirical support for the proposition that a generally impoverished upbringing can itself cause a specific crime so as to render the offender blameless. There may be a general correlation between RSB and crime,³⁰⁷ but general correlation does not make specific causation.³⁰⁸

To illustrate the point, consider the strong correlation between being male and committing crime.³⁰⁹ If correlation sufficed to create an excuse, then the prime candidate for excuse under Bazelon’s “product test” would be being male, which has been shown to have an a very strong correlation to crime. A person with XY chromosomes is nearly four times more likely to commit a criminal offense and more than six times more likely to commit an offense of physical aggression and violence.³¹⁰ Not surprisingly, men are dramatically overrepresented in the prison population. They make up 84% of the country’s correctional population and are twelve times more likely to be convicted of a violent felony than women.³¹¹ Seventy-eight percent of all arrestees, 84% of all convicted felons, and 86% of all violent offenders are male.³¹²

The facts indicate that being male is a significant contributor to criminality, but would anyone really want to conclude that, given the correlation between being male and committing crime, we should provide a “being male” excuse defense? A vast number of male offenders can plausibly argue that they would not have committed their offense if they had been born female, so presumably Bazelon’s product-test theory of excuses would support a defense for them.

Of course, traditional excuse theory rejects any such defense. It is not enough that a defendant was abnormal in some way or in an abnormal situation at the time of the offense. To be excused, the law requires that the abnormality or the abnormal situation have such a dramatic effect in reducing the offender’s ability to remain law-abiding that they can no longer be seen as blameworthy for their offense.³¹³ There is little evidence that being male causes such sufficient cognitive or control dysfunction (although some women might dispute this point). Certainly, there is nothing to suggest a dysfunction so substantial that men cannot reasonably be expected to remain law-abiding. When it comes to a rotten social background, social variables that suggest a RSB—growing up in a broken home, inadequate care or child abuse, early socialization to violence—actually have a much more limited association with criminality than chromosomes do.³¹⁴ If we should not give a defense for “being male,” there is even less reason to consider a defense for having a rotten social background.

Recognizing an RSB defense might well serve the ideological goal of replacing criminal law with an anti-criminal justice social policy, one of the motivations for decriminalization described in Part II, but this would be wholly inconsistent with the notion of deserved punishment to which the community is deeply devoted.³¹⁵ The same activists who support RSB-type defenses are also likely to support decriminalization as a way to avoid “criminalizing poverty.” The overlap in motivations for an RSB defense and for decriminalization was exemplified by the previously mentioned 2020 proposal from Seattle’s city council to create a “poverty defense” that would prohibit “prosecution for misdemeanor crimes for any citizen who suffers from poverty, homelessness, addiction, or mental illness.”³¹⁶ While the proposal was fortunately not implemented due to outcry from even liberal Seattleites, it illustrates how the motivations behind many of today’s decriminalization efforts are a logical parallel to recognizing an RSB defense—ditching the criminal justice system’s focus on doing justice in favor of social engineering through converting crime into a purely public health issue no matter how egregious the conflict with the community’s commitment to the importance of justice.³¹⁷

C.The Need to Decriminalize Conduct That the Community No Longer Sees as Criminally Condemnable

We have argued that there are significant and often ignored societal costs to decriminalizing conduct that the community sees as criminally condemnable. For many of the same reasons, the criminal law has an obligation to officially decriminalize conduct whenever community views shift to view that conduct as no longer sufficiently condemnable to merit criminal prohibition and punishment.

To take an obvious example of an outdated criminalization, adultery is still an offense on the books in some states.³¹⁸ The 2003 conviction of one John R. Bushey, Jr. under Virginia’s adultery statute generated national attention in large part because such prosecutions were no longer ever brought.³¹⁹ (Bushey was sentenced to community service and the misdemeanor charge was expunged from his record upon his completion of the program).³²⁰ The newsworthiness of the case itself highlights the fact that adultery has been de facto decriminalized even in states with an existing adultery statute.

Some people may see this situation—criminalization without enforcement—as having some practical value. They may argue that, while adultery is rarely prosecuted, its continuing presence in the criminal code provides an official source of moral condemnation of the conduct.³²¹ Decriminalizing adultery, they might worry, could be seen as morally approving it. And few legislators probably want to be on record as the “adultery legalizer,” lest the change suggest the legislator approves of such conduct.

But criminalization-without-enforcement creates a range of problems, many of which echo some of the concerns around decriminalization discussed previously. First, the failure to decriminalize mistakes the proper role of criminal law. There are numerous social institutions that have as their role building or reinforcing social norms—religious institutions are a prime example and more recently social media and special interest groups—but criminal law’s role is more limited. It seeks to identify the wrongdoing that is so condemnable as to deserve the stigma and punishment of criminal liability. As noted previously,³²² there are many sorts of conduct that may be socially and even morally objectionable, but just because the conduct is wrong, it does not follow that its wrongfulness rises to the level of criminality.

To criminalize adultery when the community sees it as insufficiently serious to deserve actual prosecution and punishment is to dilute the power of the “criminal” label. By representing adultery to be a criminal offense, when in practice it really is not seen as meeting those requirements, is to risk people concluding that other offenses in the criminal code are similarly only pretend offenses. Creating that kind of ambiguity undermines the social influence of criminal prohibitions generally.

Further, the criminalization of conduct that is not really meant by the legislature to be prosecuted has the effect of shifting the criminalization power to prosecutors and risking arbitrary enforcement. The rule of law is undermined when the criminal law includes a variety of outdated offenses that can be dusted off and used to prosecute a disfavored defendant according to the whims of the prosecutor.

To protect its moral credibility, as well as its legitimacy based upon fairness in adjudication, a criminal law ought to say what it means and mean what it says. It ought to carefully define as criminal only the conduct that the community believes deserves the sanction of criminal liability and punishment and, when such conduct occurs, it ought to prosecute violations to the extent feasible, unless some special circumstance of the particular case justifies non-prosecution.

Perhaps a more relevant example of the need to decriminalize conduct no longer seen as criminally condemnable is the case of marijuana. Recent surveys have confirmed that a clear majority of Americans support marijuana legalization. For example, a 2022 poll showed that 59% of Americans supported complete marijuana legalization, another 30% supported making marijuana legal for medical use only, and only 10% supported the total marijuana criminalization still common in many states.³²³ As with adultery, some lawmakers are reluctant to decriminalize marijuana lest they be seen as encouraging marijuana use, but such concerns should be outweighed by the loss of credibility the law suffers by being out of step with community views. Lawmakers concerned about marijuana as a gateway drug should be more concerned about marijuana as a possible gateway crime that accustoms people to breaking the law generally.³²⁴ This is also a possible lesson of Prohibition, discussed earlier,³²⁵ in which creating a comfort level with lawbreaking through drinking alcohol may have been one of the reasons crime rates for non-alcohol offenses increased.

That said, policymakers should be cautious approaching decriminalization purely on the basis of opinion polls that can fail to capture the community’s true and nuanced criminalization and justice judgements. The result of polling is too often the result of how questions are asked. Further, polling may not reflect the community’s judgment about whether specific conduct is criminally condemnable but rather whether the community is open to an alternative approach to eliminating that criminal conduct—if the alternative approach works. For example, while polls show an increasing share of Americans seem open to “hard” drug decriminalization, this does not necessarily mean their criminalization judgements are changing in the same way as with marijuana.³²⁶ As discussed earlier regarding Oregon’s Measure 110,³²⁷ people may be willing to experiment with decriminalizing conduct they still see as criminally condemnable under the belief it will reduce the conduct in question. When the conduct is not reduced (a seemingly predictable result), people revert to desiring criminalization because they still view the underlying conduct as criminal. By contrast, increasing marijuana use in states that have legalized marijuana has not caused voters to demand reinstating criminalization—perhaps because they now see marijuana use as more akin to drinking or smoking—unhealthy, but not criminally condemnable. The best test for whether the community truly no longer sees the conduct as criminally condemnable is whether they would still support decriminalization if they knew the conduct would significantly increase post-decriminalization. The public seems by-and-large accepting of weed brownies and pot-smokers proliferating, but the prospect of fentanyl cookies and heroin addicts coming to a street near you is likely to face rejection.

Decriminalization advocates would also do well to remember how nuanced public judgements can be—the same behavior can be viewed very differently depending on context. There is a reason sex in the bedroom is legal but sex on the street is not. The community might see private drug use as not being a matter for the criminal law so long as that drug use does not significantly affect the rest of society. At the same time, the community might very strongly believe public drug use deserves criminalization and strict enforcement.

An additional distinction to consider is that the public may not so much support decriminalization as a change in punishment. For example, California voters who passed Proposition 47 may have been expressing a desire to allow for more non-prison punishments for theft—not a desire to let theft go unpunished. Sometimes a change in the statutory punishment, instead of de facto decriminalization, is what best reflects community views. We strongly support efforts to revise laws to reflect changing community views about what constitutes a just punishment for criminal conduct, but the need for such reform should not be used as an excuse to enact unsupported decriminalization.

While policymakers must decriminalize conduct that is no longer seen as criminally condemnable to avoid damaging the law’s moral credibility, they must also recognize that the law’s credibility is equally imperiled by enacting decriminalization contrary to the community’s nuanced criminalization judgements. Respecting the community’s views is the only way to avoid both errors.

Conclusion

The increasing trend toward de facto decriminalization of condemnable conduct is driven in large part by a failure to appreciate the importance of doing justice according to the community’s shared justice judgments. Those pressing for such decriminalization are often those who oppose punishment generally and who imagine a society in which condemnable conduct is “corrected” through medical and social interventions instead. No matter how beautiful this vision may sound, it is dangerous because of its disregard for human nature. There never has been and never will be an orderly society without criminal punishment.³²⁸ What thoughtful reformers can do is promote a society that is extremely careful about punishing only in strict proportion to an offender’s blameworthiness. This includes making sure only conduct the community views as criminally condemnable is criminalized and that a full set of defenses and mitigations representative of society’s justice judgements are recognized. Additionally, as we have argued elsewhere,³²⁹ reformers can do much to reduce imprisonment in favor of non-prison sanctions the community will still see as just, as well as making sure the imprisonment that is imposed is as effective as possible in rehabilitating offenders, be it through education, training, treatment, or anything else that proves effective. As should be clear, this Article has no quarrel with a desire to change or reduce punishments for particular crimes, but only with the desire to do so by decriminalization contrary to the community’s views.

We can and should do our best to eliminate both injustices and failures of justice from the legal system. But converting anti-criminal justice or anti-prison preferences into the decriminalization of condemnable conduct makes the system less just for all, ensures more crime, and inflicts more suffering on the most vulnerable. There is nothing just or equitable about well-intentioned policies with terrible results. They are just terrible policies. That is a lesson reformers must learn in order to avoid compounding the problems they try to solve.

98 S. Cal. L. Rev. 585

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Paul H. Robinson*

*Colin S. Diver Professor of Law, University of Pennsylvania.

Jeffrey Seaman†

†Bachelor of Arts in Philosophy, Politics, and Economics, 2022, and Master of Science in Behavioral and Decision Sciences, 2023, University of Pennsylvania. Levy Scholar at University of Pennsylvania Law School. Sarah M. Robinson made significant contributions to this Article, for which we thank her. We also thank Hannah Agarwal and Hugh Rennie for their assistance. The authors express their appreciation to the participants of programs in which this paper was presented at Heinrich-Heine-Universität Düsseldorf, Notre Dame Law School, and Vanderbilt Law School.

When Doctors Become Cops

July 2024July 2024Teneille R. Brown*

The lines between law enforcement and health care are blurring. Police increasingly lean on doctors to provide them with genetic samples, prescription histories, and toxicology results that they could not obtain on their own. This often occurs without a warrant or the patient’s consent. At the same time, legislatures are using physicians as regulatory levers to police pregnant and transgender bodies. And due to chronic underfunding of social services, many Americans now receive pseudo-mental health treatment through the courts rather than clinics. Together, these things paint a sinister picture of law enforcement being thrust into medicine in ways that are deeply troubling and vastly underexplored.

In this Article, I reveal how the blurring of law enforcement and health care undermines core principles of medical ethics—such as privacy, accountability, efficacy, honesty, and autonomy—in the service of diametrically opposed prosecutorial goals. I walk through various examples of law enforcement’s co-option of medicine. These examples expose fundamental conflicts between the two professions that support keeping them far apart.

Scholars have done excellent work documenting the overpolicing of emergency rooms. This Article expands the analysis to a wider set of clinical domains and ratchets up the urgency by establishing police involvement in health care as a social determinant of health. When doctors become cops, this does violence to the physician-patient relationship and the (disappearing) trust on which it relies. This in turn causes demonstrable negative health outcomes. Not coincidentally, medical mistrust is highest in communities that are poor, racially diverse, and overpoliced. Thus, to improve the physician-patient relationship and promote health, I provide a few suggestions for how the line between law enforcement and health care may be better enforced.

INTRODUCTION

A. Abortion Restrictions Intensify Police Presence into Health Care

In the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health, 597 U.S. 215 (2022), legislatures in conservative states have significantly restricted access to abortion.¹ One such law is Utah’s SB 174, which was written to go into effect as soon as Roe v. Wade, 410 U.S. 113 (1973), was overturned.² This law criminalizes the provision of abortion from implantation in all but three narrow circumstances.³ One of the three circumstances is if the woman was sexually assaulted.

However, it is not enough that the patient confide in her doctor that she was raped. Before terminating a pregnancy, physicians are required to verify that the rape has been reported to law enforcement.⁴ This same provision exists in other states.⁵ There is no legislative guidance on the procedure to be followed to protect the confidentiality of the patient’s medical records or the patient-provider privilege. This sort of conspicuous and ill-conceived police intrusion into medical decision-making is both exceptionally troubling and on the rise.

Such laws interfere with patient care by thrusting police into decisions that should be exclusively between patients and their doctors. Rape survivors frequently choose not to report their assault out of concerns that it will revictimize them without leading to a conviction.⁶ Under the law of several states, this rational, personal decision will now block these patients from accessing safe medical interventions. Complying with these laws puts physicians in a bind—do they fulfill their ethical obligations, or their legal ones? More importantly, such laws force patients to have their medical needs subordinated to larger prosecutorial goals. Prioritizing the state’s interest in prosecution in this way violates long-standing norms of patient autonomy and medical ethics.

The criminalization of abortion brings law enforcement’s conscription of physicians into agonizingly sharp relief.⁷ But this conscription goes well beyond reproductive care and operates on two axes. The first axis involves legislators, acting through the police, leaning on nurses and physicians to enforce moral codes that are only tangentially related to medicine. Examples include not just bans on abortion or gender-affirming care, but the implementation of prescription drug monitoring programs and the provision of addiction or mental health treatments through the carceral system. The second axis of police encroachment into health care is more historic and familiar. It involves cops asking hospital staff to provide them with biological samples that they then use to investigate drug prosecutions, car accidents, murders, and sexual assaults. Everywhere you look, it seems, cops are operating on these two axes to blur together the provision of health care with the prosecution of crime.

While these police encroachments target diverse kinds of data and endanger different aspects of health care, they each do violence to the physician-patient relationship and the trust on which it relies. They take what makes health care so unique and special—the confidentiality and ethical obligations the physicians have toward their patients—and exploit this for prosecutorial ends. The physician-patient relationship is not just some precious ideal that we need to protect out of respect for old-fashioned values. Substantial research now demonstrates that when we undermine the trust patients have in physicians, we do significant damage to population⁸ and individual health.⁹

In this Article, I explore how the blurring of health care and law enforcement violates fundamental principles of medical ethics. But I will also reveal how shaky and aspirational these core ethical principles are, and how far we are from realizing them. I establish medical mistrust, which is exacerbated by police intrusion, as a social determinant of health (“SDOH”) that has been massively underexplored.¹⁰ Not coincidentally, medical mistrust leads to poorer health outcomes and is much higher in communities that are poor, racially diverse, and overpoliced. This exacerbates health inequities, as Latinx and Black people have a long history of receiving inferior care, despite having comparable insurance and access.¹¹ To repair mistrust to improve patient outcomes and respect for autonomy, physicians cannot be perceived to be aligned with policing—an institution that is oppressive and surveillance-oriented.¹²

To justify my thesis—that law enforcement and health care need to be more completely divorced from one another—the Article will proceed in the following way. In the first Part, I will reveal how abortion restrictions are just the tip of the iceberg. In the second Part, I will describe how law enforcement easily gains access to confidential medical data. In the third Part, I establish medical mistrust as a SDOH. Unfortunately, when the police lean on physicians to do their investigative work, this has the potential to annihilate the struggling physician-patient relationship and to lead to poorer health outcomes. In the fourth Part, I provide several illustrations of how law enforcement is meddling inappropriately in health care. These examples reveal not just how pervasive the meddling has become, but also how fundamental the differences are between the two cultures’ ethics. While medicine aspires toward self-regulation, privacy, accountability, efficacy, honesty, and respect for autonomy, law enforcement resists these values. This matters because the co-option of health care by the police undermines principles of medical ethics in the service of diametrically opposed prosecutorial norms. To respect patient autonomy, repair medical mistrust, and promote individual and public health, I will conclude by suggesting a few concrete legal reforms that may better wall health care off from law enforcement.

B. Ubiquitous Police Involvement in Health Care

The post-Dobbs abortion restrictions give us a unique sense of urgency regarding the co-option of health care by law enforcement. However, abortion is just the tip of the iceberg. In many other domains, police are reaching into medical databases and spaces to gain access to information that they cannot obtain on their own.

The reason for the high quantity of police meddling in health care is two-fold. First, physicians are risk-averse and already highly regulated. Attaching threats of criminal penalties to their noncompliance with state laws will deter many of them, and it is easy to add new conditions to the renewal of their medical licenses.¹³ This is the “easy deterrence” rationale. Second, cops are constantly looking for ways to improve their crime clearance rates, or the percentage of crimes that are solved. The value of medical and biological evidence to this pursuit is enormous, and this is something hospitals have in spades. This is the “easy access” rationale. Hospitals and physicians are thus both a convenient regulatory lever and a reservoir of evidence.¹⁴

Astute observers have written about how the police have forced their way into emergency rooms in poor, urban neighborhoods.¹⁵ In one study, close to 80% of patients who had cops transport them to or visit them in the emergency department were Black.¹⁶ Police omnipresence has been shown to compromise clinical care by, for example, prioritizing the interrogation of trauma patients when they need life-saving interventions.¹⁷ Additionally, their swiping of confidential patient data in emergency departments—sometimes without a warrant or consent—appears to be rampant, and increasing, with very little oversight.¹⁸ Overpolicing in urban emergency rooms is a harrowing example of cops injecting themselves into health care in ways that frustrate patient autonomy and clinical care.

But it goes beyond this phenomenon too. To the surprise of many, police have been quietly conducting warrantless searches of various genetic databases.¹⁹ Physicians have also been asked to take on the mantle of law enforcement to limit patient access to not just abortion, but also opioid medications and gender-affirming treatments. Police administer fatal doses of ketamine to patients they diagnose as having “excited delirium” despite this diagnosis being highly contested in the medical community. Counties are expanding their “treatment courts” to provide substandard mental health and addiction treatment, with threats of incarceration for noncompliance.

In many domains, law enforcement is co-opting the practice of medicine. I will go into greater detail for each example below, as they each illustrate different violations of medical ethics norms. However, in the following Section, I will introduce the problems with community distrust of police. I will then compare this to medical mistrust and explore how the deep roots of medical mistrust are an important SDOH.

1. Police Mistrust Is at Record Highs

The public’s trust in the police is at an all-time low.²⁰ This is related, no doubt, to the fact that in the last year alone, The Washington Post reported that over 1,100 people have been shot and killed by the police.²¹ Shockingly, one in twenty homicides in the U.S. are committed by law enforcement.²² In 2022, 11% of police killings involved no alleged offense by the deceased, 9% involved mental health or welfare checks, and 8% involved traffic violations.²³ One need not linger on these data to understand why the police in the United States spark fear of violence.²⁴ People should obviously not be killed for being mentally ill or for running a red light.

Now that there is more widespread video recording of officers “as they engage in violence against Black citizens . . . the world has begun to see the human rights violations” committed against Black people by police.²⁵ In the wake of the police murders of George Floyd and Breonna Taylor, almost ninety percent (88%) of Black Americans say major changes are needed to make policing more accountable.²⁶ This is compared with 63% of Hispanic Americans and 51% of White Americans who likewise desire greater police accountability.²⁷ And since the widespread coverage of these incidents, even more examples of police brutality have impaired community trust and reduced incentives to cooperate with the police.²⁸ Awareness of police brutality has been shown to result in fewer calls to 911 and less information-sharing with the police.²⁹

2. Structural Racism in Policing

A large body of scientific research reveals structural racism in “virtually all aspects of the criminal legal system,” with Black Americans “experiencing harsher outcomes in relation to police encounters, bail setting, sentence length, and capital punishment than White people.”³⁰ While people’s trust in the police varies greatly based on their race, in general, the trust people have in police has taken a huge hit in the last few years.³¹

Researchers have begun to make the connection between police brutality and unmet medical needs.³² A proposed mechanism for this is impaired medical trust. This Article proposes a direct link between policing and inequitable health outcomes, because patients perceive medicine as aligned with law enforcement. When doctors work too closely with cops, health care is not just seen as affected by the police—it is the police. This takes medicine in the opposite direction from where it needs to go: to correct health inequities. Because trust is so vital and diminishing in health care, we must do more to ensure that the violent and patronizing cop culture does not infect the clinic.

I. MEDICAL MISTRUST IS A SOCIAL DETERMINANT OF HEALTH

A. The Physician-Patient Relationship Is Suffering

Trust is a “vital aspect of clinical care”³³ with mistrust being “a major barrier to a strong patient-clinician relationship.”³⁴ Unfortunately, the physician-patient relationship is not what it once was. Today, the ideal of the trustworthy, compassionate, attentive physician seems almost quaint. Most of us do not have a long-term, trusting relationship with our primary care doctor. There are many reasons for this.

First, patients and physicians have precious little time to build trust.³⁵ Since the 1990s, managed care insurance organizations have put considerable pressure on physicians to move quickly from patient to patient.³⁶ Seeing a high volume of patients is financially rewarded in the allocation of relative value units (“RVUs”), which is a performance metric that impacts physicians’ promotions and salaries. Additionally, doctors “face mounting demands on their time” to fill insurance authorization requests, perform utility review, train mentees, and update their recordkeeping.³⁷ Patients and physicians simply do not have the time to get to know one another in the way they did decades ago.

Research shows the best way to forge a strong therapeutic alliance is for physicians to “engage more with patients by listening to what they have to say, asking questions and showing sensitivity to their emotional concerns.”³⁸ But unfortunately, this is not occurring. The fee-for-service model reimburses hospitals and physicians for doing things, but not for talking about whether and how to do things.³⁹ Relatedly, as medicine has become more technical and specialized, there has also been “a growing substitution” of patient self-reports for those made by machines.⁴⁰ Why focus on what a patient is telling you, when you can run a test, bill for it, and see “objective” data for yourself? The overreliance on tests and technology may lead patients to feel like their personal accounts of their health histories do not matter.⁴¹

Telemedicine may also be damaging the physician-patient relationship. Something critical is lost when our regular physicians cannot see us biting our nails, rapidly losing weight, or struggling to walk. In one study of telemedicine, physicians reported they “were very concerned about the loss of personal connections and touch, which they believed diminished expected rituals that typically strengthen physician-patient relationships.”⁴² Of course, telemedicine improves access for many rural Americans. It is not a universally bad thing. But when it comes to initiating strong, trusting bonds between physicians and patients, it is a poor substitute for in-person visits.

Given these systemic pressures, it is impressive that some physicians still take the time to get to know their patients. Though of course, not all physicians do. And data suggests that patients of color⁴³ who are overweight,⁴⁴ who have intellectual disabilities,⁴⁵ or who use illicit drugs⁴⁶ are more likely to feel rushed by their doctors and to experience poor physician communication.

Most patients are familiar with the feeling of being rushed by their doctor. One famous study found that on average, physicians interrupt their patients after less than twenty seconds of the patient speaking.⁴⁷ While interruptions sometimes facilitate deeper sharing, physicians often interrupt patients in ways that discourage patients from offering additional relevant concerns. It is difficult to trust people who do not appear to listen to us.

Together, these factors contribute to a perfect storm that is weakening the physician-patient relationship. Repairing this relationship is not just a good insofar as it promotes health; it is a good on its own because it fosters informed, compassionate, and individualized care. Against this backdrop where doctors are not trusted and police are trusted even less, we need to do more to repair patient trust in health care. Allowing cops to take advantage of the trust that remains in health care to access patient data and prosecute crime does exactly the opposite. In this next Section, I will describe how medical mistrust impairs individual and public health.

B. Medical Mistrust Hurts Health

The trust between clinicians and patients does not exist in the context of an equal relationship. There is a sharp power imbalance, where the “doctor typically has knowledge that the patient lacks, and the power to order investigations and treatments.”⁴⁸ But the asymmetry flows in the other direction as well—the patient may hold private knowledge about their symptoms, their values, and their medical history that really ought to be shared.

In theory, patients can adopt the treatment plan or not, they can terminate the relationship, and they can seek treatment elsewhere. But this power is severely limited by practical considerations. For example, many patients live in rural areas, have complicated diagnoses that require specialized care, or do not have access to affordable insurance and a range of providers. Any of these can mean that they have no real choice and are “stuck” seeing particular physicians. Because patients lack the ability to see another doctor, earning the patient’s trust is essential to making sure patients receive quality care and do not feel forced to continue a disrespectful relationship.⁴⁹

Researchers have documented unacceptable levels of medical mistrust, which captures the “overall suspicion of the health care system and beliefs that health care providers and organizations may act contrary to patients’ best interests.”⁵⁰ Medical mistrust has been shown to lead to poorer health outcomes,⁵¹ and to “trigger nothing short of a public health crisis.”⁵² However, while understood to be “ubiquitous,” precise measurement of medical mistrust has been difficult because it encompasses many different things.⁵³

Even so, mistrust has been shown to cause patients to feel stressed about seeing their physician⁵⁴ and report less satisfaction with their care.⁵⁵ Medical mistrust also leads patients to refuse prescribed medications, to miss cancer screenings,⁵⁶ to not see their doctor for regular visits,⁵⁷ to discourage others from seeking treatment, to not share sensitive medical information with their providers, and to be less likely to comply with the prescribed treatment or health care plan.⁵⁸ There is even some evidence that trusting your health care provider is associated with better self-reported health status.⁵⁹ Put simply, when trust suffers, patients suffer.⁶⁰

Medical mistrust is exaggerated in already marginalized communities. It has been shown to discourage Native Americans,⁶¹ Black people,⁶² and Latinx people⁶³ from receiving all kinds of care. In groups with intersectionalities,⁶⁴ the effects of mistrust might be even more exaggerated.⁶⁵

For example, researchers have linked vaccine hesitancy to medical mistrust.⁶⁶ During the COVID-19 (“COVID”) pandemic, public health researchers observed that Black and Latinx people had more “vaccine hesitancy” despite being disproportionately impacted by COVID deaths.⁶⁷ But rather than focusing on “why people of color distrust medicine,” scholars have recently encouraged asking “how has power been abused in medicine?” and “what can institutions do to stop it?”⁶⁸ That is, why might people of color rationally fear the COVID vaccine, based on how they have been exploited and abused in the past? The burden of rectifying mistrust cannot be borne exclusively by the disadvantaged communities themselves. This is the great insight of the SDOH framework. It allays the propensity to engage in victim blaming or assuming that the alarming state of health inequity is just.

Unfortunately, the nature of medical mistrust makes it difficult to combat. In a poll by the Association of American Medical Colleges, “six in 10 adults have concerns about sharing their social and online activity data in a healthcare setting” in part due to mistrust.⁶⁹ While researchers often need access to race, income, and other sensitive data to measure health inequities, “when patients distrust the system, they are less likely to share self-identifying data.”⁷⁰ This creates an unfortunate feedback loop; the very causes of medical mistrust make patients reluctant to provide the data needed to correct it. Of course, if patients know that their health data can be shared with law enforcement, they are even less likely to share their demographic data with their doctors. This will make it even harder to run racially sensitive epidemiological studies to correct health inequities.

As a key factor in racial health disparities, distrust in health care institutions is a massively underexplored SDOH.⁷¹ It needs to be explored in the same way as other well-known factors, such as stress,⁷² exposure to high levels of industrial chemicals, air pollution,⁷³ or living in food deserts.⁷⁴ Only by viewing the co-option of health care by law enforcement as a SDOH can we appropriately evaluate the health impacts on communities of color who already experience disproportionate health disparities.

1. Medicine’s History of Injustice

Medicine has a troubled history of policing bodies and reinforcing power structures.⁷⁵ For too long, physicians from upper-class, white households have dismissed the stories of patients who were considered “disobedient” or “difficult” simply because they had different backgrounds or experiences.⁷⁶ This dynamic continues today. The disparity in class, education, physical ability, and race creates a form of epistemic injustice⁷⁷ that prioritizes the voices of patients who tell the physicians familiar stories and what they expect to hear.⁷⁸ Add to this the fact that physicians generally have poor listening skills,⁷⁹ and we can see why we need to “dethrone” physicians from their presumed superiority to respond to the SDOH.⁸⁰

Hubris and histories of racism in health care have led to justified mistrust of medical providers, especially among people with disabilities,⁸¹ women, Indigenous, Black, and Latinx populations.⁸² When reflecting on this, people often call to mind the unethical Tuskegee experiments, in which poor Black sharecroppers were deliberately infected with syphilis and denied available treatments. But by focusing on Tuskegee, we risk minimizing the geographic and temporal breadth of medical racism.

Before the Civil War, physicians “attributed poor health among slaves to their biologic inferiority.”⁸³ They ignored the fact that servitude was toxic to health while simultaneously exploiting individuals for medical research. Historically, hospitals were intentionally racially segregated, and they continue to be underfunded in racially diverse communities.⁸⁴ Up until the 1970s, Black and Indigenous women were formally and involuntarily sterilized by physicians.⁸⁵ Women in detention facilities continue to be sterilized through deception and violations of informed consent.⁸⁶ To this day, Black women are much more likely to die from childbirth because their health concerns are dismissed.⁸⁷ In one study, half of the white physicians surveyed were found to hold false beliefs about Black people’s biological differences—such as thinking they have thicker skin or their blood coagulates more quickly.⁸⁸ Infant mortality for Black babies is higher now than it was during the antebellum period.⁸⁹ To this day, physicians are more than twice as likely to call the cops when treating a Black patient compared with when they are treating white patients.⁹⁰ Reports of these disparities naturally make their way to the affected communities.

2. To Repair Medical Mistrust, Law Enforcement Must Be Walled Off from Medical Spaces and Data

At the population level, physicians are generally trusted as an institution. However, trust in the medical establishment varies significantly by class and race. People of color report lower trust in doctors and the larger health care system than do white people, likely due to the medical racism described above.⁹¹ Members of the LGBTQ community have also experienced discrimination and inferior health care treatment.⁹²

Compared with white participants, a multivariate analysis revealed that Black and Hispanic participants had 73% and 49% higher odds, respectively, of reporting mistrust in health care professionals.⁹³ Additionally, low-income families in the U.S. report being significantly less trusting of physicians and less satisfied with their care than adults who are not from low-income families.⁹⁴ Given the volume of data that demonstrates how mistrust impacts health outcomes, it also contributes to significant health care inequalities.⁹⁵ By including ratings of trust from marginalized groups, we can see that for many, the health care system is already failing to behave in ways that are worthy of trust.⁹⁶

These datapoints tell us that structural racism and discrimination persist in health care. However, the quantitative data risks masking the lived experiences of people of color, many of whom have a personal story of being mistreated by a medical professional.⁹⁷

As one physician put it, “to improve relationships between doctors and disenfranchised patients[,]” physicians must “recognize that racial preconceptions continue to affect clinical practice, even if it’s not intentional.”⁹⁸ Unfortunately, little has changed since the recognition over twenty years ago that “black Americans are less likely than whites to receive a wide range of medical services, including potentially lifesaving surgical procedures.”⁹⁹ Black people are “dying not of exotic, incurable, poorly understood illnesses nor of genetic diseases that target only them, but rather from common ailments that are more often prevented and treated among whites than among blacks.”¹⁰⁰

Medical schools in the U.S. are working to correct this. For example, during the initial COVID lockdowns, doctors protested in solidarity with Black Lives Matter activists in grassroots events called “White Coats for Black Lives.”¹⁰¹ The American Medical Association (“AMA”) has also worked to incorporate anti-racism¹⁰² and anti-ableist education¹⁰³ throughout the medical curriculum. However, they must still do more. Medicine must continue to shift its gaze to the SDOH, rather than “record[ing] politics as biological misfortune.”¹⁰⁴ To trust health care systems, patients must feel heard by their doctor, trust that their doctor is being honest and doing what is in their best interest, and feel the doctor will respect their confidentiality.¹⁰⁵

Most of the metrics on trust in medicine focus on the physician-patient relationship, because it is the most important aspect of patient trust.¹⁰⁶ As Ji Seon Song recognized, “[w]hen medical and police actors act in concert, there is the potential for their actions to amplify bias and discrimination.”¹⁰⁷ In light of the rampant violence and pervasive lack of trust in the police, repairing medical mistrust cannot be done if law enforcement intrudes on this struggling relationship by invading medical spaces and data.

In the next Section, I will pivot to explaining how it is that police gain access to confidential health information. Given that health data is considered especially sensitive, federal statutes, state statutes, and evidence rules recognize it as privileged and confidential. However, ironically, the Privacy Rule of the Health Insurance Portability and Accountability Act (“HIPAA”), which was enacted to shield medical data from unauthorized disclosure, incorporates a number of exceptions for the police.¹⁰⁸ These exceptions oddly give the state access to this highly private information.

II. HOW POLICE HAVE EASY ACCESS TO MEDICAL DATA AND SPACES

Many of the articles and cases that have analyzed whether police can co-opt health data have viewed this query exclusively through the lens of a criminal defendant’s Fourth Amendment constitutional right to be free from unreasonable searches and seizures. Fourth Amendment cases nearly always find a way to permit the unconsented-to blood draw, search of a private database, or forced involvement of physicians in policing.¹⁰⁹

The Fourth Amendment framing makes sense as an initial matter, because it provides the constitutional floor for privacy protection. However, it does not provide the ceiling. Governments can do much more to protect medical privacy than what is required by the Fourth Amendment. And by myopically focusing on constitutionality when assessing medical privacy, courts and legislatures do not take seriously the social good that comes from walling health care off from law enforcement.¹¹⁰

This is not to say that Fourth Amendment doctrine is irrelevant; it provides a critical piece of the tapestry. I will therefore explain how it has operated to generally grant police access to private medical data. For starters, if a valid warrant is issued on a showing of probable cause, the medical search would not violate the Fourth Amendment’s protection against unreasonable searches and seizures.¹¹¹ But even without a warrant, police access to medical records is often permitted as either not being a search,¹¹² being a reasonable search, or being part of a “special need” that is incidental to law enforcement.¹¹³

Even so, depending on the circumstances, police can be found to have violated a patient’s Fourth Amendment rights if they obtained private medical data without a warrant and the search was deemed unreasonable. To determine reasonableness, courts balance the government interest in obtaining the data, which is often compelling, against the “manner in which the information was gathered and maintained, and whether confidentiality is protected.”¹¹⁴ In practice, this does not limit police access too much. This is especially true when police obtain toxicology results from the emergency department to prosecute drunk driving. As Song points out, this is because emergency departments are often treated as though they are public spaces, where patients forfeit their expectations of privacy.¹¹⁵ Thus, even if the access to medical data is deemed a “search,” it will often be considered a reasonable one in light of the patients’ reduced expectations of privacy.

Given the unpredictability of the Fourth Amendment balancing test, many are concerned about the protection medical data will be afforded in the context of reproductive or gender-affirming care. At present, the case law is inconsistent in terms of whether the involuntary disclosure of private, non-emergency medical data runs afoul of the Fourth Amendment, especially when the evidence might be permitted under federal law, but not under state law.¹¹⁶ And if the courts come out differently on the reasonableness of searches in less politicized contexts of drunk driving and gunshot wounds, they will certainly be variable when dealing with prosecutions of physicians who provide highly-politicized abortion and trans care.¹¹⁷ And no matter how or why the private medical data are disclosed, once the state has access to this sensitive health data, the damage will be done. This will almost certainly chill patient access to many types of treatment.

However, to be clear, the police rarely need warrants to search in health care settings. Instead of obtaining a warrant by demonstrating probable cause, they can simply rely on subpoenas, state statutes, and HIPAA exceptions to gain warrantless access to patient medical data. Health care data has become the warrantless, backdoor, investigatory jackpot. So, how does this happen?

First, hospitals can play a quite active role in sharing patient data. The coercive prenatal drug testing program deemed unconstitutional in Ferguson v. City of Charleston, 532 U.S. 67 (2001), was a hybrid program run by both the hospital and the local police. It threatened women with criminal punishment if they did not “agree” to drug treatment.¹¹⁸ Hospitals and law enforcement conspired together to violate patient trust in what was something like a medical “sting operation.”¹¹⁹

This program exploited vulnerable patients while generating negative public health impacts.¹²⁰ That is, when pregnant women worry that they can be prosecuted for drug use, they are discouraged from seeking prenatal and addiction care, which then harms them and their newborns.¹²¹ To be clear, routine drug testing of pregnant individuals does not violate the Fourth Amendment so long as it is done initially for medical purposes and with patient consent. However, the legal consequences of the consent to the blood draw or urinalysis might not be explicit, and the pervasiveness of drug testing has led one physician to ask whether it is a “policing practice masquerading as clinical care.”¹²²

Cases like Ferguson are extreme, and hopefully rare. But the police do not need to formally run sting operations within prenatal clinics to obtain confidential medical data. Instead, they can do something much more banal. So long as the data are either incidental to law enforcement or relevant to an ongoing investigation, they can just ask nurses and physicians to provide them with it. And often, health care workers comply.

A. Cooperation by Health Care

One of the most common ways police access patient data without a warrant is to rely on nurse or physician complicity. Because the Fourth Amendment case law is messy, nurses and physicians report not being sure what the police are constitutionally allowed to do.¹²³ And even when they know disclosure is neither required nor permitted, health care workers have admitted to turning over confidential patient data simply because law enforcement asked.¹²⁴ One nurse reported how a police officer started asking investigative questions of a patient while he was being resuscitated.¹²⁵ She knew this was not allowed. But she noted that it can be awkward to tell a loitering cop, who is armed, to leave the radiology suites, or to stop observing lifesaving treatments.¹²⁶

Qualitative research has documented how physicians and nurses may divulge test results, patient treatments, and patient locations¹²⁷ to cops because they feel pressured¹²⁸ or “cornered” by armed officers.¹²⁹ This is especially apparent in bustling emergency departments where providers may feel safer having police around. A symbiotic relationship sometimes develops—in which the police protect staff from seemingly unruly patients and in turn the providers give the police access to confidential medical data.¹³⁰

The pressure that nurses report feeling to comply with police requests is warranted. In 2017, nurse Alex Wubbels was arrested after explaining to a University of Utah cop that she could not draw blood from an unconscious patient. She told the officer that because the patient was not under arrest, there was no warrant, and the patient could not consent, she could not provide a blood sample according to the institution’s policy and interpretation of the Fourth Amendment.¹³¹ After confirming she would not comply with his request, the cop lunged at Wubbels, forcing her into handcuffs and taking her outside while she screamed in protest.¹³² She ultimately settled a suit against the university for $500,000 for battery and false imprisonment. However, the media coverage of this event will likely deter other nurses from similarly pushing back against illegal police overreach. Police have come to feel entitled to emergency room patients, as if the hospital is just an extension of what happens out on the public street.

There is great inconsistency in how cases are treated when patients allege Fourth Amendment violations against the police having access to their medical data. However, the trend seems to be to allow law enforcement to use medical data and even obtain blood samples without a warrant. And there is sadly little accountability for the health care workers who are complicit. When providers cross the line and violate patient privacy, as Ji Seon Song points out, “[o]nly in the rare case has a doctor been taken to task by the courts for assisting police officers by performing procedures,” such as when a doctor “participated in a number of forced rectal examinations.”¹³³

We do not have good data on how often nurses and physicians turn over private medical data without a warrant. However, qualitative studies suggest that health care staff often comply with warrantless police requests to obtain biological samples or test results of patients without probable cause. In cases where patients are later prosecuted, they may challenge the constitutionality of the search of their medical records or the acquisition of specimens for law enforcement. But sometimes the medical data is just used to identify individuals and is never introduced at trial. In these cases, the legal remedies are quite unsatisfying.¹³⁴

B. Permissive State Laws

Another way cops gain access to patient medical data is by broadly interpreting permissive state laws. State statutes explicitly allow law enforcement to access patient data—such as toxicology or urine results in the event of a vehicle crash,¹³⁵ prescription history to regulate controlled substances,¹³⁶ paramedic data on opioid overdoses for public health reporting,¹³⁷ or positive test results for sexually transmitted disease.¹³⁸ But often, police use these statutes to obtain medical data for very different reasons than those contemplated by the statute.

Permissive state laws can provide a tremendous amount of wiggle room. In State v. Russo, 790 A.2d 1132 (Conn. 2002), the defendant challenged a warrantless search of his prescription history as violating the Fourth Amendment. The state responded that the search was reasonable because a Connecticut statute granted law enforcement access to prescription records in order to enforce controlled substance laws. It did not matter that the police inspected the patient records for a very different purpose—to prosecute fraud.¹³⁹ The court still upheld the search under a broad and deferential interpretation of the statute.

For another example, a state attorney general was investigating whether abortion clinics were performing abortions after fetal viability in violation of Kansas law.¹⁴⁰ The Kansas statute permitted disclosure of patient information “to comply with the obligation to disclose the medical basis and specific medical diagnosis relied upon [for the abortion.]”¹⁴¹ When the attorney general was later being investigated himself for misconduct and harassing the clinics, the court permitted thirty complete patient medical records to be produced—from an abortion clinic, no less—despite neither the provider nor the patients being under investigation.¹⁴² Broad interpretation of disclosure statutes with narrow statutory purposes provides another avenue for police access to confidential medical data.

Even when permissive statutes are deemed unconstitutional under the Fourth Amendment, police reliance on them will not always trigger exclusion at trial. That is, even when statutes specifically exclude use of the medical data, or the statute itself has been found to violate the Fourth Amendment, the prosecution might still be allowed to rely on the data in a criminal trial if the police can show they were confused, and relied on the statute in “good faith.”¹⁴³ The latitude shown to law enforcement in these contexts is astounding.

C. HIPAA Exceptions

In addition to state confidentiality provisions, most readers will be familiar with the Privacy Rule of the Health Insurance Portability and Accountability Act (“HIPAA”).¹⁴⁴ This federal law requires that covered entities like health care providers and insurance companies obtain the patient’s authorization before sharing their protected health information (“PHI”).¹⁴⁵ Protected health information is anything identifying an individual, created or received by a health care provider that relates “to the past, present, or future physical or mental health or condition of an individual, the provision of health care to an individual, or the past, present, or future payment for the provision of health care to an individual.”¹⁴⁶

HIPAA is often invoked as the universal health privacy protector. But it poses almost no obstacles to the police use of medical data.¹⁴⁷ For starters, the police themselves are not a “covered entity,” so once medical data resides with them, they are not subjected to HIPAA privacy or security rules.¹⁴⁸ And even when the police request PHI from a hospital or other covered entity, the Privacy Rule permits disclosure to them for a broad variety of reasons, and without judicial involvement. For example, disclosure is permitted (1) if a state law permits it (such as the statutes above mandating disclosure of opioid overdoses), or (2) to respond to a court order, warrant, subpoena,¹⁴⁹ or summons issued by a judge or grand jury.¹⁵⁰ Perhaps most broadly, HIPAA allows covered entities to share PHI (3) to respond to an administrative subpoena or written statement by police that specifies how the request is “relevant and material” to an investigation.¹⁵¹

The only limit on these administrative requests is that they must be limited in scope “to the extent reasonably practicable in light of the purpose for which the information is sought” and “[d]e-identified information could not reasonably be used.”¹⁵² This squishy language from the Privacy Rule seemingly does not employ any balancing test. If law enforcement has made a request that asks for information that is relevant and material (a low bar) and the request fits within one of the stated uses, then HIPAA will allow it.¹⁵³

Because hospitals need not publicly report when they disclose PHI to law enforcement, we have no idea how often the police use this backdoor route.¹⁵⁴ The exception is a gigantic loophole. If nurses and physicians incorrectly interpret this exception as requiring rather than permitting disclosure of PHI, it could result in much less privacy protection against government disclosure than the drafters envisioned. And even if they interpret it correctly, the exception permits law enforcement to have access to confidential medical information any time it might be useful to their criminal investigations. They do not need a warrant. They do not even need a subpoena.

Unfortunately, in addition to allowing quite a lot of unconsented-to disclosures, trial courts interpreting these HIPAA exceptions sometimes read them to suggest that they preempt common law or constitutional privacy requirements.¹⁵⁵ Thus, if something is permitted under HIPAA, some trial courts treat it as permissible under various tort theories¹⁵⁶ and the Fourth Amendment. This is an error, as the Privacy Rule applies to a very narrow context of covered entities and was never meant to be coterminous with preexisting privacy rights.¹⁵⁷ However, confusion about HIPAA’s application is rampant. This may lead cops, health care workers, and patients to think that it replaces common law privacy protections and gives the final say on what may legally be disclosed.¹⁵⁸ It is counterintuitive and troubling that a statute meant to expand confidentiality over medical data is likely having the opposite effect.

Additionally, if the disclosure of a suspect’s medical data was unauthorized under HIPAA, that does not automatically lead to suppression in a related criminal trial.¹⁵⁹ Conversely, if the disclosure was permitted under HIPAA, it might still violate a defendant’s Fourth Amendment rights. If the medical data does need to be introduced at trial, it could be suppressed if the police are found to have conducted an unreasonable search under the Fourth Amendment. This risk might be why the police are increasingly relying on nondefendants’ medical data. Nondefendant’s medical data poses no risks of suppression or Fourth Amendment violations.

When seeking genetic data to identify suspects, police can rely on “close enough” genetic matches by requesting the medical data of a suspect’s children, siblings, or even cousins. They can then use the biological sample from the suspect’s relative to connect the suspect to the crime scene through familial matching. When done this way, the investigative use of a relative’s genetic material might never see the light of day at trial and may never need to be introduced. Because the remedy for a Fourth Amendment violation is suppression at trial, if the relative whose specimen was tested by police is never criminally charged, the relative would need to seek redress by filing a civil rights violation under Section 1983 of Title 42 of the U.S. Code.¹⁶⁰ In addition to being time-consuming and expensive, the evidentiary hurdles are quite high.¹⁶¹ And these civil proceedings would have no impact on the related conviction. This renders the legal guardrails against police overreach in this context insufficient.

In the previous Section, I explained how there are few legal hurdles to law enforcement accessing private patient data. Specifically, the way the Fourth Amendment has been interpreted, provider compliance, and broad HIPAA exceptions permit a great deal of police access to confidential medical data. Additionally, even when police overreach, the remedies that are available are insufficient to fully protect patient privacy. In the next Section, I describe why police access to medical data has the potential to do so much violence to the physician-patient relationship and core principles of medical ethics.

III. THE GUN AND THE STETHOSCOPE: TWO VERY DIFFERENT CULTURES

Conscripting clinicians to do the bidding of law enforcement is lamentable for a number of reasons. This is because the goals of law enforcement are diametrically opposed to the goals of health care. Consider the most common symbols of each profession. For physicians, it is the stethoscope, which amplifies the patient’s body and allows its rhythms to be heard. Now, consider the symbol of policing in the U.S.—the gun, which is violent and silencing. While these two professions embody more than can be encapsulated by these two symbols, the stethoscope and the gun reflect deep concrete and metaphorical differences between the two institutions. These differences are reflected in their values, ethics, and in the community’s expectations of them.

But let us start with how they are similar, and then we can highlight their significant differences. First, doctors and cops are both considered part of the helping professions. Each owes fiduciary obligations to the people they serve, which in theory, are built on trust. They both wield tremendous power over vulnerable populations, given their status as gatekeepers to important social goods. However, mounting awareness of the disparities experienced at their hands has led to reduced trust in both professions.

In practically every other way, there could not be two more different institutions. Health care is about healing and promoting evidence-based measures, while protecting patient autonomy, privacy, and health care accountability. Law enforcement is not about healing, does not promulgate evidence-based measures, and frequently disrespects individual autonomy and privacy, while dodging most forms of legal accountability. Some have argued for police to adopt a “culture of health” to improve their policing, and perhaps they should.¹⁶² But it cannot operate the other way. That is, the culture of medicine cannot be infected with the culture of policing. I will now explore various case studies of police intruding into health care. Each example reveals the diametrically opposed norms and ethics of each profession, and why this creates a strong argument for their being kept separate.

A. Different Self-Regulation Norms

In the last century, fueled in part by complicity in the Nazi concentration camps, physicians have developed and internalized sweeping reforms to their codes of ethics.¹⁶³ Emerging from this grisly past, physicians have documented many instances of their abuses of power. Principles of respect for autonomy, nonmaleficence, privacy, accountability, and justice have since been incorporated not only into the medical school curriculum, but also into the fabric of how hospitals and clinics should be run.¹⁶⁴

These ideals are not consistently realized, and sometimes they are pit against one another. However, because the principles of autonomy, privacy, accountability, and nonmaleficence are near-absolute, when physicians fail to realize them, these norms are likely to be regulated by the physicians and hospitals themselves—even in the absence of any legal liability. As compared with law enforcement, physicians extensively self-regulate through governing bodies and professional associations.¹⁶⁵ And of course, on top of their self-regulation, if physicians breach confidentiality, fail to obtain patient consent, or cause harm through their negligence, they are frequently civilly sued and held accountable for malpractice.

When it comes to honesty, almost seventy percent (69%) of Americans now rate the honesty and ethical standards of physicians as “very high” or “high.”¹⁶⁶ Most, but certainly not all, Americans feel safe entrusting our physicians with sensitive health information about ourselves or our family members that we would never willingly give to the cops. This did not happen by accident. This is the result of decades of developing cultures of honesty and disclosure.¹⁶⁷ Overall, trust in clinicians in the U.S. remains relatively high, though it could and should be much higher, particularly among the most socially disadvantaged groups.¹⁶⁸

By contrast, police rarely hold themselves accountable for the violence that they perpetrate, which is often not just careless, but intentional.¹⁶⁹ If anything, police culture “tolerate[s] and encourages” misconduct by framing things in terms of “us versus them”—where a certain amount of brutality is considered necessary to protect law enforcement from the communities they serve.¹⁷⁰

And when it comes to honesty, rather than regularly exposing mistakes, as is done during medical peer review meetings, cops are discouraged from disclosing misconduct or perjury by fellow officers. This practice of solidarity has been referred to as the “blue wall of silence.”¹⁷¹ This code of silence and resulting lack of transparency makes it difficult to identify problem officers and widespread corruption. Experts who have examined root causes of police misconduct have concluded that “the roots of police misconduct rest primarily within the organizational culture of policing.”¹⁷²

To the extent police officers support ethical codes of conduct, they appear to do so instrumentally to prosecute crime. And perhaps this makes sense because they are accountable to the public, and not to individuals. That is, respect for autonomy does not appear to be an end in itself, but a means of having a better rapport with the community and increasing crime clearance rates. Conversely, in medicine, there are precious few actions a clinician can take that violate a competent individual’s autonomy, because autonomy is a deontological obligation that clinicians are bound to uphold. These different institutional values and goals lead to very different patient expectations of clinicians and cops. If cops intrude on clinical spaces in ways that violate autonomy, patients may worry that physicians will do the same—and indeed they might at police behest.

B. Different Privacy Norms

Cops and clinicians also have very different norms around privacy and confidentiality. Patient privacy is considered by the American Medical Association (“AMA”) to be “fundamental, as an expression of respect for patient autonomy and a prerequisite for trust.”¹⁷³ The AMA Code of Ethics even spells out the different zones of privacy that physicians must respect: physical space, personal data, decisional privacy, and associational privacy.¹⁷⁴ Ethically, physicians should inform patients when their privacy has been breached, separate from any legal obligations.

Physicians also have common law fiduciary obligations for “confidences communicated by a patient [to] be held as a trust.”¹⁷⁵ Texas law stresses that due to the “highly personal nature of [medical] information[,] [it] places a heavy responsibility on the trial court to prevent any disclosure that is broader than necessary.”¹⁷⁶ And every state has now created a statutory physician-patient privilege of some form that prohibits disclosure of statements¹⁷⁷ and medical records¹⁷⁸ in court without the patient’s consent.¹⁷⁹ The privilege promotes “free and full communication between a patient and his doctor so that the doctor will have the information necessary to competently diagnose and treat the patient.”¹⁸⁰ Indeed, courts have warned against jeopardizing the “sanctity” of the physician-patient relationship by divulging patient information to third-parties.¹⁸¹ Others have stated that “the patient [has] the power to reveal the private information to the persons the patient chooses, reinforcing the [physician-patient] privilege’s policy of patient autonomy and privacy.”¹⁸² It is difficult to square these unequivocal statements with granting cops broad access to sensitive medical information, just because they ask.

If patients do not trust that their communications will be private, they will keep secrets from their doctors that will frustrate their care.¹⁸³ Even worse, they may refuse to seek important prenatal or emergency care altogether. Additionally, confidentiality fosters a feeling of safety and sanctuary between patients and physicians, which signals that, as it relates to the physician’s goals, the needs of the patient are paramount even to those of society.

People (sometimes reluctantly) must also share sensitive and humiliating information with cops. Even so, there are no norms of confidentiality in law enforcement. There are also no common law, statutory, or evidentiary requirements that information shared with police be kept confidential. If anything, in law enforcement, the norms generally run in the opposite direction.

Witnesses largely lose control over their testimony when it becomes part of an investigative record. For example, Chanel Miller recounts in her beautiful memoir, Know My Name, how painful it was to realize that intimate photos of her naked, assaulted body would be shared in a crowded courtroom during the prosecution of Brock Turner.¹⁸⁴ Once the police are involved, the victim’s images are no longer private.¹⁸⁵ This is true regardless of how sensitive or embarrassing those images or statements might be. This is not to say that the police are unethical—this is just to say that their code of ethics do not include honoring confidentiality.

1. Police Search Clinical Laboratories and Biobanks

Genetic information is one of the most sensitive types of information connected to us: it reveals predictive information about our future health and our relatives, it does not change over time, and we are only scratching the surface of what it all means.¹⁸⁶ Recognizing that genetic material is highly sensitive, but might be used nefariously, Congress passed a federal statute in 2008 to restrict its use in the provision or pricing of health insurance.¹⁸⁷ Despite its extensive protection in health care, genetic information receives meager confidentiality safeguards when used by cops. The Fourth Amendment jurisprudence has shockingly analogized discarded genetic samples to trash, permitting its warrantless seizure.¹⁸⁸

Given the value of genetic samples to solving crime, it is no wonder police use of genetic material from health care databases is so common. In 2005, police in Kansas subpoenaed a DNA sample from a woman’s pap smear to connect her father to a string of murders. Through the use of her medical sample (which had been held in a Kansas health clinic), without her notice or consent,¹⁸⁹ the police confirmed that her father, Dennis Rader, was likely the BTK serial killer.¹⁹⁰ This connection gave them probable cause to arrest the suspect. Rader was later convicted of ten counts of first-degree murder.¹⁹¹

2. Police Search Public Health Newborn Screening Genetic Databases

Recently in New Jersey, a child’s genetic sample—also obtained in a health care setting—was used to implicate her father in a sexual assault.¹⁹² The child, who is now nine years old, had her heel stuck by hospital staff when she would have been just a couple of days old.¹⁹³ The heel stick was part of New Jersey’s mandatory newborn screening program, which blends together individualized patient care with public health goals.¹⁹⁴ Because the database is maintained for public health reasons, the consent process is not as robust as it is in regular clinical decisions.¹⁹⁵ In the absence of a formal refusal, hospital staff collect the blood samples on filter paper that they use to test the baby for dozens of serious, hidden diseases. The residual samples are often maintained in public health facilities.¹⁹⁶

In the New Jersey case, law enforcement suspected that the child’s father had committed a sexual assault.¹⁹⁷ When they realized he had a child in New Jersey, they accessed the child’s state newborn screening database without a warrant. A comparison of the crime scene DNA and the blood on the screening card revealed the newborn to be a first-degree relative of the perpetrator. This gave them the probable cause they needed to arrest the father for the assault.¹⁹⁸

News of this prompted a lawsuit by the New Jersey Office of the Public Defender against the Department of Health (which maintains the screening cards).¹⁹⁹ The complaint asserted that parents are not told that their child’s DNA will be placed in this database and potentially used by law enforcement. The litigation resulted in the state admitting to using the newborn bloodspots, without parental consent, in at least five other cases that resulted in prosecutions. Legislators in New Jersey proposed a bill in 2022 to prohibit the use of newborn blood spots for criminal investigations without parents’ affirmative consent, but the bill has stalled in committee.²⁰⁰

For Fourth Amendment purposes, the lack of any consent for secondary law enforcement use makes this case very different from the use of a public genetic database, called GEDMatch, to apprehend the Golden State Killer in 2018.²⁰¹ So-called forensic genetic genealogy relies on public genetic databases, in which users voluntarily upload their genetic information from Ancestry.com or 23andMe to facilitate their personal genealogical research. This was also how police identified the man who murdered four college students at the University of Idaho.²⁰²

In this case, however, parents were not uploading their child’s genetic profiles to a public website for recreational purposes. Rather, the genetic newborn screening bloodspots were obtained in a hospital, exclusively for medical purposes. This draws hospital staff into the prosecutorial process in a very different way.

Because the newborn screening program is not completely voluntary, and parents usually must affirmatively opt out rather than opt in,²⁰³ there should be no unconsented-to secondary uses of this data. It only takes one highly publicized instance of misuse, such as in the New Jersey case, to deter parents from participating in the screening program. If parents opt out, newborns will lose the huge benefit of detecting rare diseases that can be fatal if untreated.²⁰⁴ Given that overpolicing and distrust is already more rampant in communities of color, there is reason to worry that blurring the public health goals of newborn screening with the prosecutorial goals of criminal investigations will cause greater health disparities.

Some may argue that the use of newborn screening bloodspots is justified, on an instrumentalist account. On this view, the data is just sitting there in a warehouse, waiting to serve the public and identify rapists, murderers, and other “bad” people. In response to this, I offer two thoughts. First, we ought not to concede that the inquiry is a consequentialist one, as opposed to holding firm in the obligations to keep medical data private. And second, even on the instrumentalist account, it is not clear that providing cops access to genetic newborn screening databases will yield net benefits to society. Are dozens of children dying from preventable diseases obviously worth less than a murder prosecution? The life of a child who dies because his parents opted out of the screening program is just as valuable as the life of a murder victim for whom the police seek justice. The public should be able to debate the competing values of these institutions, rather than the prosecutorial goals always trumping those of public health.

Additionally, the police may not be able to handle these sensitive specimens in a way that adequately maintains confidentiality.²⁰⁵ The storage, labeling, and transfer of genomic materials is highly regulated in health care settings and laboratories.²⁰⁶ Because data stored by law enforcement is not subject to health privacy or clinical laboratory regulations, medical data could find its way into an investigative police file, and be treated far too cavalierly.²⁰⁷

This fear is not exaggerated. In San Francisco in 2016, a woman provided her DNA to police as part of a sexual assault rape kit. Without her knowledge or consent, in 2021, police used her genetic sample to charge her with retail theft.²⁰⁸ This horrific use of her genetic information reveals the lack of respect for privacy in law enforcement. Once they have your data for one purpose, they may feel entitled to use it however they please. And just as we worry that parents will opt out of newborn screenings if they think their samples are accessible to law enforcement, sexual assault victims are now given yet another reason not to report their assault to police.

All of this blurring of genetic data with law enforcement occurs amidst considerable police secrecy. We do not know how often police access medical or public health databases; law enforcement does not report this.²⁰⁹ This is an additional difference between cops and clinicians. Clinicians are much more likely to report on their own internal practices, either due to accreditation requirements or because of their civil commitment to transparency. Cops, on the other hand, tend to be very secretive about their own internal processes—using privacy as a shield and sword when it comes to their own institutional data.

C. Different Accountability Norms

One reason for the different privacy norms has to do with who each profession sees as their “client.” Medical institutions must address social injustice at the policy level. However, individual physicians do not owe duties to society generally when making treatment decisions.²¹⁰ Instead, their duty is to the individual patient.²¹¹ This has been enshrined in some states’ common law. For example, physicians in Arizona owe a fiduciary duty to their patients “to exercise the utmost good faith” and to “act in the best interests of his patient so as to protect the sanctity of the physician-patient relationship.”²¹²

This focus on the individual can create conflict between medical and public health ethics. For example, during pandemics, governments might ask physicians to allocate scarce resources like ventilators or antivirals to serve population health. Because physicians see themselves as agents for individual patient care and not as instruments of public health, having to do this caused some physicians moral distress.²¹³

1. Police Are Increasingly Unaccountable to Private Individuals and the Public They Serve

To law enforcement, conversely, the client is the public, not any one individual. The first sentence of the International Association of Chiefs of Police Code of Ethics states that the police officer’s “fundamental duty is to serve mankind.”²¹⁴ Police success is measured in terms of public safety statistics measured at the population level. The utilitarian framework contributes to an ideology of police being unaccountable to individuals for the harms they cause.

The unaccountability of law enforcement plays out directly in negligence law, where police are often immunized from liability under the “public duty doctrine.”²¹⁵ This common law doctrine varies a bit from state to state. However, it essentially holds that cops cannot be held liable for an injury if they fail to perform a duty, and the duty is “owed to the general public rather than to an individual plaintiff.”²¹⁶ For police to owe a duty to affirmatively act to protect an individual, some special, pre-injury relationship must exist between the cop and the injured party, the injured party must be in custody, or the cop must have created detrimental reliance.²¹⁷ Even grossly negligent failures by a cop may not be considered a basis for tort liability, as cops are protected by the discretionary nature of their decision, the public duty doctrine, and other government immunity provisions.²¹⁸

The common law doctrine of qualified immunity further shields the police from individual liability for constitutional rights claims unless the officials violated “clearly established law.”²¹⁹ The specter of immunity impacts the likelihood that individuals will even file suit.²²⁰ Qualified immunity for civil rights violations has received well-deserved criticism in recent years due to media coverage of appallingly high levels of police killings.²²¹ Shielding police from civil lawsuits in all but a tiny fraction of cases, the doctrine “serves as a barrier to incentivizing police officers to do better when dealing with the public.”²²²

This patchwork of immunities reveals a picture of police that are increasingly unaccountable to the public they serve. This led one judge to write that “liability for municipal employees is effectively dead.”²²³ Meanwhile, the duties of medical professionals are expanding to protect nonpatients and unnamed third-parties the physicians have never met.²²⁴

These opposite trajectories bear emphasizing. In the last fifty years, physicians, nurses, and therapists have seen sharp increases in their liability through expanding notions of negligence obligations.²²⁵ Physicians in Pennsylvania have duties to protect or warn a patient’s neighbors, even when they have never met them or know their names. Somewhat paradoxically, physicians have been asked to pay for accidents that may even be principally caused by law enforcement. I will explain how this came to be, below.

2. Physician Accountability to the Public Is Expanding

The landmark case of Tarasoff v. University of California, 551 P.2d 334 (Cal. 1976), is an important illustration of the asymmetrical obligations owed to the public by health care professionals and law enforcement.²²⁶ Because it was a key factor in the erosion between health care and law enforcement, I will go into a bit of detailing describing the case here. In Tarasoff, a young man named Prosenjit Poddar brutally killed fellow Berkeley student Tatiana Tarasoff. In Poddar’s criminal trial, the family discovered that Poddar’s therapist had breached confidentiality—risking tort liability—to report Poddar to local law enforcement. The therapist was concerned for the unnamed woman (Tatiana) whom his client had admitted he wanted to harm. Discovering this, Tatiana’s parents then sued the police, the university, and the individual therapist who had treated Poddar in negligence—for failing to warn their daughter of Poddar’s threats.

The facts of this case are quite remarkable. When the therapist called the campus police, the police detained Poddar and then let him go because he “appeared rational.”²²⁷ The police were sued but were given statutory immunity because their decision to release Poddar was part of their public duties and was discretionary. The court reasoned this was appropriate because courts should not be second-guessing the executive branch.²²⁸

The therapist, on the other hand, was found to have a duty to protect Tatiana. The California Supreme Court suggested that the therapist was careless for not figuring out that Poddar’s target was Tatiana, and then personally reaching out to warn her. How the therapist was reasonably supposed to do this in the 1970s, without Google or Tatiana’s contact information, much less any training in risk assessment or violence prevention, remains a mystery.

An oft-cited section from the opinion states that patient-psychotherapist confidentiality “must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins.”²²⁹ Many follies in the co-opting of medical privacy to serve law enforcement goals may be traced to this opinion, and this singular sentence. Even the HIPAA exception that permits unauthorized disclosure if someone threatens themselves or others is referred to as the “Tarasoff exception.”²³⁰

After Tarasoff, judges extended affirmative duties to warn nonpatients to social workers and physicians. Clinicians may be liable for negligence if they do not violate patient confidentiality to prevent imminent, serious bodily harm to an identifiable person.²³¹ While physicians already had duties to report infectious diseases, Tarasoff can be viewed as creating a sea change in creating broad obligations for therapists, and then other clinicians, to protect the public health and safety. Unsurprisingly, therapists really dislike being asked to violate patient confidentiality to disclose imminent risks to third parties, as they worry it chills therapeutic speech and can stymie treatment. It also runs counter to principles of beneficence—the ethical duty to prioritize the interests of their individual patients.

The Tarasoff majority created new duties for therapists by exploiting the special relationship between the therapist and patient and using it to generate duties to people outside of that relationship.²³² Put differently, the court took the very things that made therapeutic relationships special and sacrosanct—confidentiality and trust—and exploited them for law enforcement goals. Many take this “special relationship” argument at face value and assume that because the therapist had a trusting relationship with the murderer, this naturally led to his owing a duty to the murderer’s victim.²³³ But this move was and is extremely counterintuitive.

Imagine extolling the cherished relationship between mother and son, and then requiring the mother to divulge her son’s secrets to prioritize some other kid’s needs. The obligations to third parties is a weak link in the reasoning of Tarasoff that is assumed rather than defended. As a landmark example of the co-option of health care by law enforcement, the Tarasoff decision has likely done a great deal of violence to the therapeutic relationship.

3. The Tarasoff Ruling Frustrates Psychiatric Care

Indeed, shortly after the case was decided, a whopping eighty percent of therapists “observe[d] greater patient reluctance to discuss violent thoughts,” and sixty percent felt “that patients were at least somewhat more reluctant to discuss sensitive information.”²³⁴ In addition to chilling patient willingness to discuss sensitive matters, therapists also erred on the side of restricting patients’ freedoms. A third of therapists reported being “more likely after Tarasoff to commit patients involuntarily to the hospital.”²³⁵ This might not be terrible policy if it helped patients or prevented violent crime. But that appears not to be the case. One study using a fixed-effects model found that mandatory duty-to-warn laws actually resulted in an increase in homicides of five percent.²³⁶

Of course, recognizing the vulnerability of patients and the potential for abuse, physicians and nurses are accountable to the public in many other ways. If they abuse patient trust or fail to execute their duties, they can lose their professional licenses,²³⁷ be denied hospital admitting privileges,²³⁸ and may also be liable for fines for violating the Health Insurance Portability and Accountability Act.²³⁹ They also may be prosecuted for many health-care-specific types of self-dealing, fraud, and misrepresentation.²⁴⁰ And of course, unless they work for a public, state-run hospital, they can be, and frequently are, sued for ordinary common law malpractice claims.²⁴¹

D. Different Efficacy Norms

Therapists worried (correctly) that the Tarasoff ruling would pierce a huge hole in patient confidentiality, demand clairvoyance,²⁴² and not deter much crime. They were right. Without gathering any data whatsoever, Tarasoff-type expansions of duties have knocked down the preexisting wall between health care and law enforcement. This is concerning, but unsurprising. Judges do not conduct research on the efficacy of the policies they propose, and neither do the police.

Even law enforcement interventions that are passed by statute and capable of being carefully studied first by experts are almost never evidence based. Of the scant few police interventions that have undergone validity or reliability testing after the fact, the large majority have not been shown to work at all.²⁴³ This means, in effect, that law enforcement is allowed to experiment on the public. This makes it all the more appalling that they are then immunized from negligence when they get it wrong.

This is diametrically opposed to ethical principles in clinical medicine.²⁴⁴ Virtually no treatments should be offered to patients without testing their safety and efficacy first. An untested intervention might actually cause harm as opposed to just not work, which would lead to violations of the ethical principle of nonmaleficence (colloquially, “do no harm”).²⁴⁵ While all health care involves some uncertainty, to experiment on patients, physicians must first demonstrate that no safer options have worked.²⁴⁶ To deviate from an accepted standard of care, physicians must have data that the new path is equally safe and potentially more effective. This is not an ethical norm held by law enforcement. In the following Section, I explore two examples of law enforcement dabbling in health care in ways that resemble raw experimentation rather than evidence-based care.

1. Examples of Law Enforcement Providing Experimental “Treatment”

i. Excessive Ketamine Administration

In August 2019, a twenty-three-year-old Black man named Elijah McClain was stopped by police on his way home. Someone reported he was “acting suspicious” though he was not suspected of any crimes.²⁴⁷ Three cops restrained Elijah in a chokehold and then handcuffed him while he stated he was an introvert who never even hurt flies. The police claimed after the fact that McClain went for a gun, but there is no evidence of this. When the paramedics arrived, at law enforcement’s request, they administered five milliliters of ketamine without knowledge of Elijah’s vital signs, asthma, or mental health history.²⁴⁸ Elijah went into a coma and later died. The final autopsy report indicated a high dose of ketamine contributed to his death. The police officer who put McClain in a neck hold after he was administered ketamine was acquitted of negligent homicide and manslaughter.²⁴⁹

While law enforcement may need to restrain individuals who are physically threatening them, they seem to have no internal criteria for how the restraint will be done ethically and according to best medical practices. In Elijah’s case, there was no evidence that he needed the ketamine to be restrained. Indeed, he was already in handcuffs.

Unfortunately, police often rely on the controversial diagnosis of “excited delirium” to administer ketamine to stressed individuals.²⁵⁰ As Osagie Obasogie has written, “there is little scientific evidence to support claims that excited delirium exists as a legitimate psychiatric condition.”²⁵¹ Even so, it is increasingly being used to explain “suspicious deaths that occur in police custody.”²⁵² Reviews of police custody deaths validate that excessive use of ketamine is often the primary cause of death, as law enforcement are administering doses of sensitive medication without adequate medical training or supervision. This is yet another troubling example of the medicalization of criminal investigations, using nonevidence-based “treatments.” Police have inadequate training on how to assess the health status of individuals. And yet, they, along with paramedics, routinely experiment on a case-by-case basis, injecting powerful medications into people experiencing mental health crises.

ii. Drug Courts Provide Nonevidence-Based Treatment

Drug courts have proliferated in the last two decades as a result of the failed War on Drugs and mass incarceration.²⁵³ Qualifications for drug court vary, but state and county programs typically allow people charged with nonviolent crimes to take a plea in abeyance, which will disappear so long as they graduate from a diversion program such as drug court. Drug courts often involve a county judge overseeing someone’s treatment program with regular check-ins with parole officers, treatment providers, and counselors. Participants must appear before their judge and explain any relapses they have had. Judges will often place requirements on graduation from drug court, such as obtaining and keeping a job.

Drug courts provide an on-ramp to treatment. Compared with probation-as-usual, some studies suggest they reduce recidivism rates.²⁵⁴ However, because addiction is a disease, the primary comparison should not be criminal metrics, but clinical ones.²⁵⁵ We do not know how drug courts compare to routine, affordable evidence-based medical care for addiction because access to this treatment does not exist in the United States.²⁵⁶ Instead, we funnel addiction “treatment” through the prison system or through highly unregulated addiction clinics that often do not have even one licensed medical provider.²⁵⁷

The blending of punishment and treatment goals problematically blurs the lines between health care and law enforcement. People in recovery are expected to check in with their parole officer and attend drug court regularly with the threat of incarceration looming in the background. These check-ins make it difficult for poorer people living on the margins and without transportation to sustain employment. The result is that the carceral state is engaged in a great deal of surveillance and treatment that should be provided not in the courtroom, but in the clinic.²⁵⁸

While some of the treatment programs mandated through drug court are evidence-based, many are not.²⁵⁹ As a result, participants in drug courts often get mixed messages about the value of medication to their recovery. For example, despite being highly effective and the “gold standard” for opioid use disorder, some drug court programs prohibit the use of buprenorphine to curb opioid cravings.²⁶⁰ For decades, many drug courts have considered medication for opioid use disorder (such as methadone) to be taboo because it is “just another addiction.”²⁶¹ This perspective ignores the reliable empirical data that when properly dosed, opioid agonists like buprenorphine can keep people employed and able to break the cycle from craving to binging.²⁶²

There are unfortunately great disparities between courts in the level and quality of addiction care that participants receive. Even some of the evidence-based drug courts that contract with licensed addiction providers require participants to attend group therapy through Alcoholics Anonymous meetings.²⁶³ Group therapy can be a very useful form of social support to individuals in recovery. However, in some counties it is the primary method of “treatment” for individuals in drug court. This is a problem because its faith-based message is “not a substitute for scientifically valid addiction treatment and should not constitute the primary form of medical assistance received by drug court participants.”²⁶⁴

2. Police Are the Default Providers for Patients in Crisis

Because the U.S. has failed to fund many types of social services and behavioral health care, the police are often called on when people are in crisis.²⁶⁵ When police are the hammer and the only tool we have, every social service—from “traffic stops and noise complaints to evictions, overdoses, and psychiatric emergencies”—becomes their nail.²⁶⁶ We have culturally come to depend on the police as the key point-of-access for the delivery of addiction treatment, mental health care, and even the reporting of child abuse, despite their inability to meet vulnerable patients where they are.²⁶⁷ To be clear, police departments may not desire being frontline medics. However, due to the chronic underfunding of behavioral health services, police are much more likely to be the first and last resort for people in crisis.²⁶⁸

While crisis-trained police can reduce escalation and help divert people to treatment,²⁶⁹ these programs are only successful relative to the status quo of carceral, law enforcement methods.²⁷⁰ And while they may be “associated with reducing recidivism and lowering costs, . . . there is little association between program participation and improved behavioral health.”²⁷¹ That is, they might reduce crime, but they do not appear to promote health. And yet, state governors and mayors are expanding nonevidence-based programs to funnel “treatments” for mental illnesses through law enforcement and the criminal justice system.²⁷²

In California, the “CARE Court” will “connect[] people in crisis with a court-ordered treatment plan for up to two years, while diverting them from possible incarceration, homelessness or restrictive court-ordered conservatorship.”²⁷³ Programs like this reveal how we have completely given up on providing actual, evidence-based mental health treatment and instead criminalize poverty and mental illness.²⁷⁴ The vast majority of unhoused people with addiction or other mental illnesses receive no treatment.²⁷⁵ And when this is the reality—where we have given up on providing universal mental health treatment—the illnesses do not simply disappear. They show up in ways that are funneled by default through law enforcement and the criminal justice system.²⁷⁶

CARE Court and similar programs only seem progressive if they are compared to incarceration. When compared with the receipt of top-notch, evidence-based treatment, they fall woefully short.²⁷⁷ And yet, we lack the collective imagination or will to treat people in the clinic rather than the courtroom.²⁷⁸ It would be far better to provide mental health treatment wholly divorced from the threat of punishment. The looming stick of incarceration distracts from the provision of quality, evidence-based treatment.

Providing “treatment” through criminal courts confuses the roles of law enforcement and clinicians. Participants may come to view clinicians as being inherently aligned with the police state. If you are used to your treatment provider talking about your mental health struggles with your parole officer, counselor, or judge, you might come to think these disclosures are normal outside of this context. You might also not tell your court-appointed provider everything that they need to know to adequately treat you; if you say the wrong thing, it might delay graduation from drug court or any other diversion program. But most importantly for our purposes, the treatment that is provided by these diversion programs is often out-of-date and not evidence-based. This will impair patient trust in health care. In the next Section, I will explain how another ethical principle, honesty, is also critical for trust. I will discuss how it is a cornerstone of medicine, but not of law enforcement, and why this matters.

E. Different Honesty Norms

There used to be norms of “benevolent deception” in medicine,²⁷⁹ where physicians did not disclose terrible prognoses to patients to give them hope. This is no longer ethically or legally permitted.²⁸⁰ The AMA Code of Ethics requires physicians to maintain “open communication between physician and patient” as “essential for trust in the relationship.”²⁸¹

If a clinician is dishonest in any way, this will negatively impact the care the patient receives, the willingness of the patient to seek care, and the likelihood that the patient will see the clinician as protecting their best interests.²⁸² Deception is universally condemned in medicine.²⁸³ It impairs shared decision-making and “fundamentally undermines patients’ autonomy in nearly all situations.”²⁸⁴ Clinicians who lie to patients can be sued and investigated for professional ethics violations.²⁸⁵ They could also potentially lose their license.²⁸⁶

Police, on the other hand, routinely lie to witnesses to get them to cooperate.²⁸⁷ For example, they may tell someone their statement is not being recorded when it is, or say they have video footage of the defendant committing the crime, even if this is not the case. Courts do not find this violates defendants’ due process rights.²⁸⁸ It is well-recognized that “[t]he police are permitted to lie or use some deceptive methods in their questioning as long as the deception was not . . . so extensive as to induce a false confession . . . .”²⁸⁹ In this regard, health care and law enforcement are quite distinct. Physicians should not assume that patients are lying, because the physician and the patient should theoretically be on the same page. However, for the police, the need to investigate a crime means everyone is presumed to be hiding something. They have therefore “come to believe that lying is a necessary and justifiable component of their jobs.”²⁹⁰

Police are allowed to use deceptive methods to obtain evidence.²⁹¹ For example, DNA that a suspect unwittingly leaves on an armchair may later be analyzed without a warrant and without violating the Fourth Amendment.²⁹² If one technically agrees to provide a DNA sample, but did not feel they were free to refuse, this is presumed to be voluntary consent in the police context.²⁹³

Some have argued that police surreptitiously obtaining genetic samples for investigative purposes is unethical because they “bypass[] the codes of informed consent.”²⁹⁴ In the medical context, the phrase “informed consent” is a term of art. It “requires that a patient understands what is being done to her before she agrees to be touched by a physician or researcher.”²⁹⁵

A physician’s failure to provide informed consent can result in battery or medical malpractice liability. It is a well-developed concept and obligatory.²⁹⁶ But this is not true for law enforcement, which is not an institution built on honesty, transparency, or trust.²⁹⁷ The different disclosure and transparency norms between health care and law enforcement stem from the different weight each puts on the value of autonomy. In the next Section, I will explore the principle of autonomy, and how it steers medical ethics but not police practice.

F. Different Autonomy Norms

Despite physicians and nurses having a great deal more clinical education than most of their patients, they should not tell the patient what to do with their bodies.²⁹⁸ In medicine, respecting autonomy means that patients have the freedom to make decisions for themselves and determine the course of their care.²⁹⁹ Autonomy does not mean patients get to demand specific things. Rather, it means they should be presented with the options—their risks and benefits—and be given the chance to ask questions.

Patients cannot make autonomous decisions if physicians do not share information that would be material to their decision.³⁰⁰ Respect for autonomy means that patients might make choices that appear irrational to physicians (like refusing chemotherapy), but stem from personal goals of care. Thus, respecting autonomy means respecting the patient’s idiosyncratic values and right of self-determination.

There is no corollary respect for autonomy in law enforcement. There is not a police code of ethics that ensures that autonomy is respected. Indeed, manipulative or sneaky tactics might be instrumentally encouraged to detain or interrogate individuals.³⁰¹ This provides yet another critical difference between the two institutions and another basis for keeping them separate. To trust physicians, patients must not come to expect their doctors to treat them like cops do.

The next two examples I will explore demonstrate how the legislature disrespects autonomy by refusing to allow patients to make medical decisions for themselves. If the legislature has decided that a type of health care—such as abortion or gender-affirming care—is morally suspect, they regulate it heavily, using health care licenses and professionals as the enforcement mechanism. And yet, states only have the ostensible moral authority to regulate these practices in the way they do because at base, they do not consider them to be legitimate health care. If they did honor them as valid treatments, they would have no authority to stick their noses in a conversation that should be between patients and their doctors.

1. Limiting Access to Lifesaving Abortion Care

Governments are presently using their police power to block access to critical health care—showing perhaps the greatest disrespect possible for the autonomy of people who can become pregnant. Statutes that have restricted access to abortions since Roe v. Wade was overturned demonstrate a remarkable lack of recognition of how they require physicians to violate medical ethics.³⁰²

Because these power grabs by law enforcement are not evidence-based, the way the exceptions are crafted reveals complete naivete about how medicine is practiced. For example, the meaning of terms like “medical emergency” have already been tested in hospitals across the country. In Missouri, a woman named Mylissa Farmer went into labor at 18 weeks with a desired pregnancy. Her water broke and she had vaginal bleeding and cramping.³⁰³ When emergency physicians assessed her, they said the baby girl she was carrying would not survive. However, because it was technically still alive, Missouri’s post-Dobbs abortion ban would not permit them to perform an abortion, even to prevent serious complications to Mylissa. Unfortunately, her physicians did not think she was close enough to death to justify the termination under Missouri’s law. Mylissa’s doctors told her she would just need to wait until her “vitals plummeted or infection set in, or the fetus’ cardiac activity stopped” before they could intervene.³⁰⁴ This put her at great risk, as she attempted to travel to a neighboring state while in a precarious and unstable situation.

The Missouri statute, and others like it, tie physicians’ hands and do not let them do what they know is best for the birth mother and her baby, which is to terminate the pregnancy compassionately and safely.³⁰⁵ There is already mounting evidence that in other states, like Texas, patients are suffering from preventable complications that are caused not by medicine, but by criminal laws.³⁰⁶ These abortion bans are obviously not meant to respect the autonomy of women and people who can become pregnant. In fact, they are written in such medically naive ways, they might even be designed to do the opposite.

In an effort to advance a pro-life, anti-choice agenda, abortion bans forget that they are conscripting physicians to violate their code of ethics in the service of prosecutorial goals. They also forget that medical decisions are not black-and-white. Several of the statutes are written as if a siren goes off when someone’s life is at risk.³⁰⁷ But that is not how critical situations arise. A pregnant person’s vital signs can change rapidly, often without advance notice. Someone can seem stable, and then two minutes later they are crashing.

Finally, “medical emergencies” are not declared without patient input. Respect for autonomy means that physicians do not unilaterally tell patients when heroic life-saving interventions will be used. Whether a patient wants chest compressions or a ventilator depends on their values and personal goals of care. The exceptions that only permit abortions when the pregnant person is near death ignore the very purpose of medicine. Medical ethics requires that physicians do what they can to promote healing and to help people thrive—by promoting autonomy and beneficence—and not just to prevent death.

Other abortion laws exhibit additional “black-and-white” thinking about medicine.³⁰⁸ Utah’s current eighteen-week ban permits abortions if the fetus has a lethal defect or severe brain abnormality that is “uniformly diagnosable.”³⁰⁹ However, this fundamentally misunderstands the way bodies present themselves and the uncertainty inherent in many clinical situations. While some fetal defects are expressed with near certainty, whether a particular defect will be fatal and within a particular timeframe is rarely something that can be uniformly diagnosed.³¹⁰ Medically speaking, the phrase “uniformly diagnosable” is nonsense. These are just some of the terrifying real-world problems that arise when legislators try to commandeer the practice of medicine, with the threat of criminal consequences to physicians for noncompliance.

Physicians in Utah and elsewhere have expressed concern over how to thread the needle in these situations—that is, to do what is best for their patients while also not exposing themselves to criminal fines or jail time.³¹¹ Every physician’s risk preference will vary, but these laws will certainly have a chilling effect and put patients’ lives at risk.³¹² They are also part of a long-term, disturbing trend of requiring physicians to violate autonomy by shoehorning politics into health care.³¹³ Below is yet another example of this phenomenon, which is tragically on the rise.

2. Punishing the Provision of Gender-Affirming Treatment

State laws banning gender-affirming care also require physicians to disrespect patient autonomy. In 2023, the Governor of Utah signed a ban on gender-affirming surgeries for minors into law.³¹⁴ The Utah law prohibits a health care provider from “providing a hormonal transgender treatment” or “providing sex characteristic surgical procedures” to new patients who were not diagnosed with gender dysphoria before a certain date.” The penalty for violating this law is either losing one’s license or being sued for malpractice.³¹⁵

On April 6, 2021, the Arkansas State Legislature overrode the governor’s veto to prohibit the provision of gender-affirming treatment to minor patients—or to even refer them to other physicians for this treatment.³¹⁶ The Arkansas law states that “[t]he risks of gender transition procedures far outweigh any benefit at this stage of clinical study on these procedures.”³¹⁷ In Arkansas, unlawful provision of gender-affirming care is likewise considered unprofessional conduct and can provide a basis for a malpractice lawsuit. Because physicians who provide gender-affirming care could lose their license in Arkansas, this will effectively remove this care for many youths in the state and will almost certainly result in increased mental distress and suicide.³¹⁸

Similar legislation is pending in approximately fifteen other states. Most of these bills propose banning all health care professionals from prescribing or administering puberty blockers, hormone therapy, or gender-affirming surgeries to anyone under the age of eighteen unless the patient can verify that they are genetically intersex.³¹⁹ Penalties can be extreme; in Idaho, a proposed bill would punish physicians with a felony punishable by a life sentence.³²⁰ Fortunately, the Idaho bill has not yet passed their senate.

In the aforementioned laws, the legislature is deciding what counts as the medical standard of care—disrespecting patient autonomy by going against the great weight of medical evidence and expertise and imposing fines and professional penalties.³²¹ The American Academy of Pediatrics issued a statement saying “[p]olitics has no place here. These are individual conversations between clinicians, patients and families about what’s best.”³²² In testimony regarding the harms the legislation will cause, pediatricians said it is based on “myths and misinformation” and a “misunderstanding about medical and surgical aspects of gender-affirmative care.”³²³

While legislators claim these bills protect children, physicians argue they do the opposite. Long-term data shows that “access to gender-affirming care in childhood and adolescence can have profoundly important mental health benefits,” including reducing the risk of suicide, decreasing depression, and decreasing anxiety.³²⁴ At some point, these statutes will need to be enforced, and when they are, law enforcement will trump important goals of clinical treatment simply because the government holds itself to a lower standard of care, permits experimentation on the public, and violates patient autonomy.

Once again, we see the state invading private medical domains through the apparatus of law enforcement. This is concerning, because as I have laid out above, law enforcement fails to promote the key tenets of privacy, honesty, evidence-bases, respect for autonomy, and accountability, which are key ingredients to stimulate trust. Once in the hands of law enforcement, vulnerable patients’ data may be used for nefarious, punitive purposes, which might discourage patients from receiving necessary treatments. The disrespect for individuals in the law enforcement context cannot infect patients’ perspectives in the medical space; otherwise, patient trust in medicine will suffer. In the next Section, I will explain why patient trust is critical to the delivery of quality care.

G. Different Trust Norms

Compared with other countries, public trust in physicians in the U.S. is low—unacceptably low.³²⁵ It is therefore imperative that health care policies do more to earn the trust of the patient populations they serve, and not less. Promoting patient trust cannot be accomplished if people perceive physicians to be prosecutors, or as working in tandem with law enforcement.

This is not about trying to keep groups separate for the sake of purity or to fetishize medicine. Rather, to prevent negative impacts on patient health, it is critical that we erect sharp boundaries between law enforcement and treatment. The lack of respect for patient privacy, honesty, and autonomy, and the lack of accountability in law enforcement for causing brutal, individual harms, makes the police in the U.S. less worthy of public trust. In the next Section, I will explore instances when the lines between health care and law enforcement have been blurred, and how these blurred lines have likely caused significant harm to the physician-patient relationship, the trust on which it relies, and the quality of care.

1. Prescription Drug Monitoring Programs Rely on and Exacerbate Mistrust

Prescription drug monitoring programs (“PDMPs”) are databases that track prescriptions and patient requests for controlled substances.³²⁶ They proliferated over the last decade in response to the opioid crisis and now exist in nearly every state.³²⁷ From the outset, they were “an instrument of law enforcement.”³²⁸ PDMPs operate differently in every state, but generally require physicians and pharmacists to enter prescribing data for controlled substances or to check such data before initiating a new controlled substance prescription.

Proponents argue that PDMPs are a helpful investigative tool to assess potential criminal diversion of drugs by patients, physicians, and providers.³²⁹ Critics argue that they are inefficient and poorly designed. PDMPs are often not developed with a “clear orientation towards health promotion” and instead complicate “communication and relationships between prescribers, pharmacists, and patients.”³³⁰ Put simply, they place law enforcement between a patient and their physician and can violate the trust between them.

PDMPs also may trigger unintended consequences that harm patients. Fearing law enforcement oversight, physicians may under-prescribe necessary pain medications.³³¹ This may lead patients to seek treatment for their pain illegally on the streets, with a drug supply that could be impure and deadly.³³² In addition to the significant public health concerns, there are enormous potential privacy risks of PDMPs when this sensitive data lands in the hands of law enforcement.³³³

For the purposes of this Article, the chief problem with PDMPs is that they destroy patient trust by injecting law enforcement norms and goals into medicine. If patients know that their physician is stepping away for a few minutes to check a police database to see if the patient is telling the truth, this brings a prosecutorial element into the decision-making process that will destroy rapport. When programs like PDMPs start chipping away at the principle of confidentiality in medicine, there are no obvious principled limits on cops’ use of doctors as their prosecutorial instruments. This loss of confidentiality will further hurt the sanctity of the physician-patient relationship, and the disappearing trust on which it relies.³³⁴

CONCLUSION

For the many reasons laid out above, it is important that the norms of law enforcement not creep into the world of medicine. As the Association of American Physicians and Surgeons so fittingly recognized, “[p]hysicians are not agents of the police power of government, and should not be forced to choose between protecting their patients against prosecution or protecting them against disease.”³³⁵ Unlike cops, physicians must embody ethical norms that respect self-regulation, privacy, accountability, efficacy, honesty, and autonomy. Respecting these ethical norms is critical not only to promote public health, but also to repair the broken trust between physicians and patients. In this Article, I described the rampant mistrust of medical providers and institutions, which is exacerbated by police intrusion into health care. Medical mistrust is a SDOH that disproportionately impacts patients of color. To build health care systems that are more trustworthy and equitable, physicians must be walled off from law enforcement.

A number of efforts can mitigate against the police intrusion into health care. However, there is no simple solution to this complex problem, and more detailed research needs to be completed on each solution. Nevertheless, below are some concrete steps courts and legislatures could consider to better separate health care from law enforcement.

A. HIPAA Should Be Revised to Make It Harder for Cops to Obtain Medical Data

The HIPAA exceptions described above make it too easy for law enforcement to pierce medical privacy and obtain access to confidential health data.³³⁶ In addition to permitting disclosures of patient data in response to subpoenas, HIPAA also permits disclosures on a simple written administrative request; this is what health privacy scholar Leslie Francis has called an “open-ended provision.”³³⁷

HIPAA has thus had the counterintuitive effect of making it easier, rather than harder, for the government to access health data. HIPAA was not intended to provide cops with greater access to confidential data. However, because its permissive exceptions are sometimes read by law enforcement and health care staff to create entitlements to patient data, the statute has become not a shield, but a sieve.³³⁸ This is unfortunate because the “HIPAA drafters worried as much about personal data being abused by the government as they did about misuse by researchers or the insurance industry.”³³⁹

Indeed, while I was writing this Article, Vanderbilt Medical Center became embroiled in controversy over its disclosure of transgender patients’ medical records to the Tennessee attorney general “as part of an investigation into medical billing.”³⁴⁰ The disclosure appears to have been pursuant to a civil investigative request, and it is unclear whether this runs afoul of existing Fourth Amendment precedent.³⁴¹ The concern, of course, is that the investigation could be pretext, and a means for harassing clinics that provide gender-affirming care as well to their patients. Regardless, HIPAA does almost nothing to stop this kind of disclosure. As Nashville LGBTQIA+ advocate Lance Preston said: “[d]o we believe that Vanderbilt Medical Center could have fought this and taken a bigger stand? Absolutely. But at the same time, we believe that it would have just prolonged the inevitable because the attorney general unfortunately, has the law on his side.”³⁴²

This Article calls for revisions to HIPAA to remove the breezy access the police have to medical data. The exceptions have become too easy to overcome, without demonstrating a strong investigative need. However, precisely how this statute ought to be revised is beyond the scope of this Article. There is, at least, a strong prima facie argument for requiring cops to do more than issue a written request asking for medical data. The status quo is too permissive. Ironically, HIPAA currently gives the very entity most people worry about sharing their medical data with—the police—incredible free access.

B. Common Law Courts Should Rethink Tarasoff and Expansive Immunity

The Tarasoff-style duty to warn was ill-conceived from the start. Empirical research has shown that such duty has not resulted in demonstrable improvements in the prevention or prosecution of crime. Instead, it has stifled vulnerable patients’ willingness to obtain mental health treatment. While likely resulting from an intuitive impulse to hold someone accountable for heinous crimes, the Tarasoff-style duty takes the very thing that makes health care special—confidentiality and patient trust—and exploits it in a way that harms not only public health, but also medical ethics. One way to course-correct is to limit the rampant recognition of duties of physicians to warn or protect third parties whom they have never met. Therapists and physicians lack good risk-assessment tools, they are often wrong, and their warnings to third parties are generally ineffective. But requiring them to contact the police to report their patients chills therapeutic trust.

C. Physicians Need Greater Autonomy to Practice Ethical Medicine

In Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990), the Supreme Court recognized that competent patients have a “constitutionally protected liberty interest in refusing unwanted medical treatment” under the Fourteenth Amendment.³⁴³ While this has been interpreted as a negative liberty rather than a positive right, it nonetheless underscores the importance of patient autonomy in our nation’s history and tradition. In another case that refused to recognize a right to physician-assisted suicide, the Court heralded the state’s legitimate interest in “protecting the medical profession’s integrity and ethics and maintaining physicians’ role as their patients’ healers.”³⁴⁴ Federal courts have long-recognized that the physician-patient relationship is special and “common law and historical American practices have traditionally trusted individual doctors and their patients with almost complete autonomy to evaluate the efficacy of medical treatments.”³⁴⁵ While a legitimate government interest can justify limiting certain rights and is not itself recognition of a right, the articulated state interest in protecting the physician-patient relationship is worth emphasizing.

The Dobbs decision exposes the current Court’s hostility to substantive due process jurisprudence.³⁴⁶ However, there was a time, not too long ago, when the Court recognized patients’ liberty interest in making autonomous medical decisions. Indeed, before the Dobbs about-face, privacy, informed consent, and medical autonomy were considered deeply rooted in our nation’s history and tradition.³⁴⁷ Returning to this orthodox view, and bolstering it in other health care contexts, could make it harder for the police to encroach on health care decisions and disrespect patient autonomy. Of course, this will require focusing strategic appellate efforts on future Courts. In the meantime, advocates should try to develop respect for patient autonomy under state constitutions, and in contexts that are less politicized than abortion or trans care. This can provide helpful counterbalancing to the increasing encroachment of law enforcement and the state into health care.

D. Health Care Providers Need Training on the Difference Between Permissive and Mandatory Disclosures

As discussed above, nurses and physicians comply with police requests for confidential medical data because they are unsure of what they are allowed to do. Consequently, hospitals and clinics therefore must provide better training for their staff on when they can exclude law enforcement from clinical data and spaces. They also must provide real-time security and support if cops threaten staff for not granting them access to this data.

Additionally, nurses and physicians must be trained on the difference between permissible and required disclosures. While HIPAA permits many unauthorized disclosures to law enforcement, it does not require them unless they are accompanied by a judicial order. Institutions should educate providers on the long-term negative health effects of blurring health care and law enforcement, so that they will reject more requests for health data that are not accompanied by a judicial subpoena or warrant.

E. We Need to Reimagine Health Care as Being Off-Limits from Police

I leave the reader with many open questions about how far my proposal should go. When I first began this project, I asked myself whether my desire to divorce law enforcement from health care could justify keeping medical data from the police even in cases of child abuse or neglect. Every state requires physicians to report suspected abuse, and while the efficacy of these laws is debated, they are thought to at least reduce ongoing abuse. Surely, despite the negative impact of police encroachment on the physician-patient relationship and trust, there could be a way to justify it when innocent children are at risk.

Upon reflection, I realized that I had fallen into a common trap. This trap presents complex social problems such as poverty, homelessness, mental illness, and child abuse as being either handled by the police, or not being handled at all. However, this is a false binary. Physicians should continue to report suspected abuse and neglect, but to trained social workers and abuse prevention experts, not to the police. Police should only be involved much later in the process, if at all, after allegations of abuse are validated through an investigation led by trauma-informed social workers. And even then, we should prioritize addressing and treating the root cause of the abuse, rather than reflexively removing children from the home.³⁴⁸

Cops are trained to be “authoritative, physical, and commanding”—traits that might be helpful in some policing situations, but are “ineffective” when responding to most health care needs.³⁴⁹ But because of chronically underfunded social service programs, when people are in crisis, it is the cops who show up. This leads to law enforcement having a de facto monopoly on the provision of many forms of treatment, which are delivered poorly and in ways that violate medical ethics. We simply lack the collective imagination to see many calls to 911 as health problems deserving of compassionate, ethical, and evidence-based treatment by doctors, and not by cops.

On another front, because physicians are easy regulatory levers, states have increasingly been shoehorning politics into medicine. This takes the very thing that makes the physician-patient relationship sacred—trust—and violates it for ulterior government motives. We have seen this recently with bans on gender-affirming care and in the many laws restricting abortion access. Everywhere we look, law enforcement is encroaching on the practice of medicine. To repair the physician-patient relationship, uphold principles of medical ethics, and promote greater trust in health care, we need to keep doctors from becoming cops.

97 S. Cal. L. Rev. 675

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Teneille R. Brown*

* James I. Farr Professor of Law, Associate Dean for Faculty Research and Development, University of Utah, S.J. Quinney College of Law; B.A. 2000, University of Pennsylvania; J.D. 2004, University of Michigan Law School. She is also Director for the Center for Law and the Biomedical Sciences and a faculty member of the Center for Health Ethics Arts and Humanities (“CHeEtAH”). This research was made possible in part through funding from the Utah Center for Excellence in ELSI Research (“UCEER”). UCEER is supported by the National Human Genome Research Institute of the National Institutes of Health (“NIH”) under award number RM1HG009037.

Oceanic Impunity

July 2024July 2024Stephen Cody*

Ocean protection is essential to avoid climate disaster. Phytoplankton, seaweeds, and sea grasses produce more than half of Earth’s oxygen—exceeding all terrestrial forests and plants combined—and absorb about ninety percent of the heat generated by rising emissions. Yet oceans continue to be sites for brazen environmental law violations, from illegal fishing to toxic dumping. International criminal law has largely ignored these crimes, even when they amount to offshore environmental atrocities. Meanwhile, legal structures for ocean governance tend to focus on regulatory compliance, self-policing, and dispute resolution, all of which have proved inadequate to protect oceans and coastal communities. Without more global enforcement, environmental criminals will continue to operate with impunity at sea, even as their crimes exacerbate existential climate threats.

Mare liberum or freedom of the seas has been a foundational principle of ocean law for centuries, dating back to the writings of Hugo Grotius. But unconditional free seas are no longer defensible in the Anthropocene. The idea of free seas falsely presumes an inexhaustible ocean too vast to govern. Consequently, governance models based solely on the principle of free seas continue to legitimate careless national policies, destructive relations with marine ecosystems, and exploitation of vulnerable ocean environments. Moving forward the international community must defend oceans as the heritage of all humankind and work together to protect seas against serious environmental harms.

This Article develops a blueprint for targeted forms of international criminalization that would deter offshore ecological destruction. It defends international prosecutions for a range of oceanic environmental crimes, including marine pollution, illegal fishing, and seabed destruction caused by illegal trawling or deep-sea mining. Beyond theories of retribution or deterrence, global criminal prosecutions for environmental harms have expressive value during this time of climate crisis. International criminal convictions showcase humanity’s shared concern for ocean life and marine environments. Criminalization of grave ocean harms would signal an ecocentric shift in international criminal law and aid multilateral efforts to protect marine environments and to promote new legal duties to nature.

INTRODUCTION

Violence and insecurity are common at sea.¹ For centuries, seafarers have committed serious crimes and human rights abuses, often with the explicit backing of sovereign governments.² Oceans are also notorious sites for environmental crimes, including toxic dumping, illegal fishing, and unlawful seabed destruction. Notwithstanding this grim history of oceanic impunity, international criminal law has long neglected oceanic offenses.³ Offshore environmental atrocities, when acknowledged at all, have been prosecuted by domestic law enforcement agencies or adjudicated by federal and state administrative bodies.⁴ Accountability gaps persist for grave ocean crimes, especially those that occur beyond national jurisdictional waters.⁵

Oceans have never been entirely lawless places.⁶ For centuries, state leaders have engaged in various kinds of ocean governance with varying degrees of success.⁷ However, offshore environmental crimes present substantial enforcement challenges for national agencies and international courts, and state efforts to hold criminals accountable for environmental offenses at sea have regularly failed for several reasons.⁸

For example, vast open seas and limited ocean patrols often hamper criminal investigations and enforcement.⁹ Sovereignty claims and principles of noninterference create obstacles for criminal prosecutors that target defendants on foreign vessels.¹⁰ Conflicts over maritime boundaries and territorial seas also exacerbate interstate tensions over criminal jurisdictions, particularly within contested territorial waters.¹¹ Additionally, international organizations tasked with ocean protection frequently lack effective enforcement mechanisms or adequate resources to address criminality.¹² Meanwhile, captains flying flags of convenience and corrupt officials at local ports often hide environmental crimes, thereby shielding criminal networks from the monitoring bodies designed to prevent marine pollution and illegal resource exploitation.¹³

Nevertheless, the need for criminal accountability to deter environmental harms and express collective commitments to ocean protection has never been greater. Phytoplankton, seaweeds, and sea grasses produce more than half of the world’s oxygen—more than all forests and plants on land combined—and absorb approximately ninety percent of the heat generated by rising emissions.¹⁴ Without healthy seas, the global community is unlikely to achieve its climate goals or to mitigate ongoing environmental impacts of industrialization. Intense waves and storm surges now regularly devastate coastal communities. Lethal chemicals, sewage, and plastics threaten vital fisheries and marine environments worldwide. The climate crisis and marine deterioration are rapidly transforming ocean governance priorities and underscoring the need for enhanced monitoring and enforcement of environmental protections beyond national jurisdictions.

This Article lays the groundwork for international criminalization of ecological harms at sea. It describes the relational dynamics of oceanic impunity and discusses several options for improving accountability in coastal waters and on the high seas. Most important, international criminal prosecutions should express shared principles and concerns about the climate crisis, underscore global commitments to protect marine environments, and raise awareness about destructive consequences of serious ocean crimes.¹⁵

International criminalization of activities that destroy ocean ecosystems would signal a common awareness of critical threats to marine environments and national leaders’ willingness to situate humanity within the natural world, not above it.¹⁶ In contrast to the dominant anthropocentrism of international criminal law, international criminalization of ocean crimes could establish duties to nature independent of direct human victimization and recast international criminal accountability as including crimes against marine flora and fauna.¹⁷ Such an ecocentric shift holds promise for “greening” various aspects of international criminal law.¹⁸ Recognizing international crimes against nature, for example, could influence financial investment in the investigation of ocean crimes, tailor prosecutorial priorities, or improve case selection decisions to better reflect environmental concerns in communities worldwide.¹⁹

Part I of this Article conceptualizes oceanic impunity as the embodiment of relationships and interactions between criminal perpetrators and enforcement authorities. Drawing on relational sociology, Part I defines oceanic impunity as a series of unfolding processes and interactions rather than as a permanent state of criminality.²⁰ Attempting to circumvent both methodological individualism and methodological nationalism, this Article identifies seven transnational dynamics that perpetuate criminality on the world’s oceans and advances a relational approach to study these dynamics.²¹ By documenting weak transnational and global enforcement practices, relational approaches to oceanic impunity reveal contemporary barriers to criminal accountability, particularly in seas beyond national jurisdictions.

Part II discusses three ocean crimes—ocean pollution, illegal fishing, and seabed destruction—with consequential effects on marine environments. Part II advances the argument that targeted international criminalization can improve criminal enforcement and accountability for each crime category. International law has long sought to address offshore environmental crimes through treaties and regulatory agreements but monitoring and enforcement challenges have regularly undermined these efforts.

Part III makes the case for targeted international criminalization to supplement existing ocean governance frameworks. By individualizing culpability for offshore crimes against nature, international criminalization creates new modalities for deterrence and novel enforcement mechanisms to address environmental crimes perpetrated beyond national jurisdictions. Selective criminalization through multilateral agreements and international courts can outfit global prosecutors with new tools to address oceanic impunity and ensure protection of marine environments.

Part IV discusses the expanded use of suppression conventions and criminal prosecutions at the International Criminal Court (“ICC”) to combat offshore environmental criminality. Amendments and new protocols to incorporate crimes against nature, including the proposed crime of ecocide, can empower international criminal prosecutors to investigate suspected perpetrators of environmental atrocities at sea.

I. OCEANIC IMPUNITY

Relational approaches to “objects” of legal research require a different method of legal analysis. Relational scholars recognize the mutual constitution of law and social relations. Ocean crimes and oceanic impunity, therefore, cannot be studied as distinctive social facts independent of concrete relationships and social problems. Understanding oceanic impunity requires accounting for evolving personal and institutional interactions that shape both community perceptions and participants’ own identities and practices. In other words, perpetrators of ocean crimes do not operate independent of governance regimes and enforcement agencies that prohibit and police their offshore activities. They exist only in relation to each other. The study of ocean criminality requires empirical investigation of relations among lawmakers, ocean offenders, and law enforcement authorities whose entanglements construct criminality in complex social fields transcending maritime boundaries. A relational approach seeks to overcome an ontological model of law as something outside of social relations and to capture the full situation of meaning-making between the observer and the observed.²² Oceanic impunity emerges through historically and geographically contingent transactions between legal regimes, law enforcement officials, and ocean outlaws. Offshore criminality, in this sense, is spontaneous, socially complex, and dynamic. It is rarely, if ever, the outcome of free will, rationality, or deeply considered social actions. Shifting oceanic relations are simultaneously constitutive of both lawlessness and order at sea. Study of oceanic impunity therefore requires reflexive empirical investigations and theoretical revision based on changing social practices within national jurisdictions and on the high seas.²³

Relational sociology also provides an alternative view of criminalization. Ocean crimes are not objective empirical facts to study. They are portals into a diverse set of interpersonal processes created and reproduced by social interactions. As an alternative explanatory framework, relational approaches to criminalization seek to move beyond conceptual antinomies—perpetrators and victims, state and non-state, legal and illegal—to focus analysis on evolving transnational practices, exchanges, and dialogues. Viewing oceanic impunity in this way means that targeted international criminalization does more than establish new crimes or empower prosecutors. It has symbolic effects that can transform social relations. Such expressive power in many cases exceeds the benefits of individualized retributive justice. International environmental criminalization under the right social conditions can encourage greater environmental protection by cultivating new social logics and institutional dynamics better aligned with ecocentrism.

A. Geography

Geography matters for ocean accountability. Oceans are massive, open spaces. They are difficult to navigate and made dangerous by high winds, changing currents, and inclement weather. Consequently, oceans are hard places for law enforcement to monitor vessels and activities aboard them.²⁴ Limited resources for patrols hamper maritime enforcement in territorial waters and on the high seas. Another enforcement challenge created by open water and nautical travel is the limited availability of logistical or medical support for routine maritime operations. Patrol boats may operate as solitary vessels unless they are monitoring shipping lanes, busy harbors, or navigating close to shore. However, while geography certainly matters for oceanic impunity, vast ocean distances cannot completely explain the pervasiveness of offshore criminality.

Advanced satellite imaging and other surveillance technologies, including long-range reconnaissance drones and unmanned submersibles, have increased the visibility of ocean crimes in recent decades. Nonprofit organizations like Global Fishing Watch, Trygg Mat Tracking, and Oceana employ satellite technologies that increasingly make it possible to identify and track particular maritime vessels.²⁵ Vessel tracking technology, big data, algorithms, and artificial intelligence (“AI”) can now be used to estimate apparent fishing efforts and to identify illegal catches in many places.²⁶ While satellite technologies have not yet created an ocean panopticon, they do allow state enforcement agencies to detect a range of ocean crimes, tighten port surveillance, and exercise better control over transitory waterways and commercial shipping channels. New kinds of collaborations between states and nonprofit organizations hold promise for detection of serious ocean crimes. The United States Southern Command (“SOUTHCOM”), for example, has partnered with Global Fishing Watch in recent years to enhance detection of illegal fishing in the Caribbean and the Pacific.²⁷

Several monitoring firms now triangulate public and private data to provide unprecedented real-time surveillance of offshore activities, even across vast geographic areas. Windward, an Israeli based company, uses AI and predictive modeling to create operational profiles of individual vessels, which enables the company to monitor a wider range of private ships. The International Maritime Organization (“IMO”) has registered about 70 thousand maritime vessels worldwide, but Windward tracks more than five times that number using its digitized data.²⁸ The expansion of AI technologies such as these will likely aid maritime law enforcement in identifying suspect vessels and environmentally damaging activities across vast oceans in the coming years.

However, visual detection of criminality alone may not improve enforcement or impact overall levels of oceanic impunity. Ocean perpetrators increasingly avoid aerial surveillance by shifting operations to different kinds of marine vessels or simply turning off automated tracking systems. Private fishing vessels, for example, are frequently used to hide illicit trafficking activities, evade detection by enforcement agencies, and distribute the costs of interdiction.

B. Technology

Transforming technologies are another powerful dynamic that shapes oceanic impunity. While new technologies have enhanced states’ capacity to monitor oceans and sometimes improved interdiction operations in coastal waters, they have also facilitated criminal enterprises.

Criminal syndicates increasingly use technology to conceal their offshore activities.²⁹ For example, vessel cloaking technologies formerly restricted to advanced naval powers have appeared on global black markets.³⁰ These new technologies enable ship captains to jam or modify data showing their navigational positions. The U.N. requires all large maritime ships to operate satellite transponders and transmit their geographic positions in real time.³¹ But ships using cloaking technologies can transmit false location data to avoid detection in contested waters or to violate international sanctions regimes.³²

Global fuel tankers, for example, disguise resupply locations to visit sanctioned oil ports in Venezuela, Iran, or Russia, and large container ships use new navigational cloaking technologies to hide shipments of commodities traveling to or from embargoed countries. In 2022, ocean monitoring groups discovered hundreds of ships manipulating onboard transmissions to camouflage their navigational location. Surveillance technologies can increase detection of environmental crimes and mitigate oceanic impunity in some cases. But emerging technologies can also fortify criminal networks and shadow economies that contribute to it.

C. Sovereignty

The Westphalian system also contributes to oceanic impunity. National maritime jurisdictions established under the 1982 United Nations Convention on the Law of the Sea (“UNCLOS”) prevent the investigation of many offshore environmental crimes.³³ States have criminal jurisdiction over their territorial sea and archipelagic waters, ordinarily the first twelve nautical miles from shore.³⁴ States can further prevent infringements to customs, fiscal, immigration, or sanitary laws and regulations for the next twelve nautical miles where a contiguous zone exists.³⁵ But beyond these waters, state authorities generally lack jurisdiction to investigate or prosecute criminality except on their own flagged vessels or with regard to foreign resource exploitation within their exclusive economic zone.³⁶ Consequently, most of the open ocean lies beyond any national criminal jurisdiction.³⁷

Moreover, even when environmental crimes amount to flagrant violations of domestic criminal law, state authorities routinely fail to enforce criminal laws in their own territorial seas.³⁸

National laws can also facilitate illicit ocean activities. Chinese fishing boats, for example, participate in civilian militia patrols in the South and East China seas. To prevent foreign states and international organizations from tracking these fishing vessels, Chinese national security laws forbid sharing data, including vessel tracking data, with international bodies.³⁹ Under the cover of domestic Chinese law, the fishing vessels go dark in contested waters.

D. Flags of Convenience

Flags of convenience are yet another pervasive dynamic contributing to oceanic impunity. In 1927, the Permanent Court of International Justice (“ICJ”) held all ships subject to the laws of their flag state. Vessels registered to a national territory were required to operate under the domestic laws of that state. UNCLOS later required a vessel owner to have a “genuine link” to its flagged state, though generous interpretations of what constitutes such a link have been commonplace.⁴⁰ Flag state jurisdiction covers criminal enforcement and typically includes oversight of labor and safety standards and international rules as well as maritime law standards.

However, despite its legacy as a foundational principle of maritime law, there is no immediate consequence for a flag state that fails to monitor registered vessel conditions or to prosecute criminal activities aboard. Consequently, flag state enforcement varies considerably.⁴¹ Some states willfully ignore national and international law. Fictitious shell companies linked to the flag country only by a mailing address commonly appear in national vessel registries. Secondary shell companies often are used to further mask vessel ownership. This layered system of corporate ownership means that flag states seeking to enforce criminal codes or regulations may struggle to identify the relevant person or parties, making criminal accountability difficult. Shell companies not only protect secrecy and insulate owners from culpability but also often provide added financial advantages by allowing owners to transfer vessel profits to jurisdictions with lower tax rates. A 2018 study, for example, found that seventy percent of vessels engaged in illegal fishing were flagged in tax haven countries.⁴²

E. Regulation

Reliance on regulatory compliance is another dynamic that contributes to oceanic impunity. Legal scholars have documented the regulatory turn in international law.⁴³ But less attention has been given to how this regulatory turn has undercut criminal accountability for environmental crimes.

Many state officials and environmental groups view ocean protection as a task for administrative agencies, not criminal prosecutors.⁴⁴ Consequently, environmental treaties typically define adjudication procedures for conflicts between parties but seldom include language that explicitly criminalizes treaty violations.⁴⁵ With this regulatory focus, law enforcement tends to respond to ocean crimes retroactively, which makes the collection of evidence challenging and criminal prosecutions less likely.⁴⁶

Further, regulatory approaches tend to place emphasis on guidelines, voluntary codes of conduct, and self-reporting. This often means that international authorities responsible for monitoring compliance shy away from questions of individual criminal culpability for environmental damage. Some fear that insisting on punishments for criminal wrongdoing will threaten regulatory alliances or jeopardize existing conformity to compliance regimes.

Even when domestic laws impose fines for environmental damage or censure offshore activities, authorities often do not seek legal judgments against vessel owners or crew. Individual accountability for environmental harms is rare. Diplomacy and economic policy remain the primary tools state officials use to encourage treaty compliance.

Ocean regulation, while expansive, is also fragmented among countries and within them. National laws governing ocean protection usually involve multiple agencies and complex jurisdictional questions. In the United States, for example, state agencies tend to regulate marine resources in territorial waters, and federal agencies regulate marine resources in the exclusive economic zone (“EEZ”) and continental shelf.⁴⁷ But even these jurisdictional lines are contested. At least twenty-four coastal states, five island territories, and four Native American tribes make claims to jurisdiction over marine resources in the United States’ ocean territories.⁴⁸ Moreover, even when only a single national law applies, management responsibilities for its regulations may involve various subnational and regional regulatory bodies that complicate lines of authority and enforcement efforts.⁴⁹ Regulatory compliance regimes also tend to adopt governance models that focus on specific resources, marine species, or geographic territories. This creates a patchwork of narrow, overlapping, and potentially competing interests and complicates enforcement more than a more wholistic, ecological approach that focuses generally on biodiversity protection and ecological sustainability.

F. Jurisdiction

Conflicts over maritime boundaries are another dynamic of oceanic impunity. Domestic criminal legal systems generally require a nexus between alleged perpetrators’ criminal acts and state claims to maritime jurisdiction. Jurisdictional disputes in contested waters can lead judges to question this nexus and halt criminal investigations and prosecutions. Perpetrators of environmental crimes also purposefully exploit jurisdictional gaps and interstate disputes to avoid obligations under international law.

Although maritime jurisdictions are well defined under UNCLOS, major powers still ignore established maritime limitations. In 2016, for example, the Permanent Court of Arbitration (“PCA”) unanimously rejected China’s claims to historic rights over most of the South China Sea and found that China had violated the Philippines’ sovereign rights by interfering with fishing and resource exploration.⁵⁰ The PCA award, however, did not change Beijing’s territorial claims or dissuade the activities of its military and its civilian maritime militia in the contested waters.⁵¹ In brazen disregard of the PCA, China has continued to claim the disputed seas as its jurisdiction.⁵²

Universal jurisdiction might provide an alternative mechanism to combat serious ocean crimes in the future. Historically, states have relied on universal jurisdiction to prosecute pirates and slave traders as enemies of all humankind.⁵³ However, the international community has yet to apply the principle of universal jurisdiction to environmental crimes.⁵⁴

G. Corruption

Corruption is yet another crucial dynamic that contributes to oceanic impunity. National and coastal economies regularly benefit from oceanic impunity, particularly from fisheries that are unlawfully exploitative.⁵⁵ Intentionally permissive state compliance regimes and local officials who act outside legal boundaries can generate windfall profits for local authorities. State leaders may neglect enforcement in exchange for direct payments. In some cases, they build cottage industries to aid in the illegal collection of certain marine species, such as sharks and whales.⁵⁶ Rewards of such illegal resource exploitation pool with violating states, even as compliant states bear additional costs of attempted criminal enforcement.

Local officials in some countries also partner with organized crime syndicates, which generally diminishes prospects for criminal accountability.⁵⁷ Threats of violence from members of criminal organizations tend to suppress local complaints and severely restrict community cooperation with outside criminal investigations. Environmental crimes perpetrated by organized criminal groups may also be associated with other criminal activities, such as money laundering, trafficking, and forced labor.

II. OCEAN CRIMES

Environmental ocean crimes are not expressly defined under international law.⁵⁸ Despite overwhelming empirical evidence that offshore environmental harms are global problems with impacts far beyond any single national jurisdiction, no global framework defines normative principles or articulates national obligations to combat environmental sea crimes. Instead, criminalizing ocean destruction depends exclusively on national lawmaking and ratification of treaties or environmental agreements.

Several well-established multilateral environmental agreements (“MEAs”) incorporate provisions that criminalize environmental harms at sea.⁵⁹ The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes (“BASEL”), for example, states that “illegal traffic in hazardous wastes or other wastes is criminal.”⁶⁰ The International Convention for the Prevention of Pollution from Ships (“MARPOL”) also authorizes the use of criminal penalties “to discourage violations” of Convention provisions.⁶¹ Countries often impose criminal penalties for trafficked illicit wildlife, including protected marine species, under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”).

These and other MEA criminal provisions are useful in combating oceanic impunity. However, most international environmental agreements still focus on regulatory solutions to specific environmental problems and lack adequate monitoring and enforcement mechanisms. In other words, multilateral agreements may aspire to limit marine pollution, avoid fishery exploitation, or revise shipping regulations, but compliance with these agreements still primarily depends on self-policing and domestic administrative oversight. Even where international agreements contain criminal penalties, states often have wide latitude to interpret their legal obligations and broad discretion in enforcing—or not enforcing—criminal sanctions. Ocean governance continues to rely, ineffectively, on a mosaic of layered customs, treaties, and international environmental agreements that prioritize regulatory solutions and voluntary compliance.⁶²

A. Ocean Pollution

In the Anthropocene, ocean pollution presents unprecedented threats to ocean health. According to the United Nations, ocean pollution constitutes at least eighty-five percent of all marine waste.⁶³ Waste disposal at sea dates to early maritime navigation, but the scale and toxicity of ocean pollution has changed over time. In 2021, for example, maritime enforcement agencies in 67 countries identified 1,600 marine pollution offences worldwide in single month.⁶⁴ Human activities are now responsible for fifty-three percent of petroleum discharges to marine environments.⁶⁵ Illegal oil discharges from commercial vessels are a major source of this ocean pollution.⁶⁶ While several multilateral agreements prohibit ocean dumping, few countries invest significant resources to investigate or prosecute offenders, particularly when dumping occurs beyond national jurisdictions.

States agencies and national militaries also dump harmful waste into oceans. The United States, for example, began to dump radioactive waste into the Pacific Ocean after World War II. Between 1946 and 1970, U.S. vessels discarded more than 55,000 containers of radioactive waste.⁶⁷ The Russian navy adopted similar dumping practices and continued to dispose of nuclear waste in the Sea of Japan until 1993. Even today, countries are actively considering ocean dumping of nuclear waste. Japan, for example, plans to discard about 1.3 million tons of contaminated radioactive water from the Fukushima Daiichi nuclear power plant into the Pacific when storage runs out at the current facility.⁶⁸ Discarded poisons, such as DDT, and toxins leaking from spent military munitions pose similar global ecological and health risks.

Plastics pollution needs greater attention, too.⁶⁹ The rough equivalent of one garbage truck of plastic is dumped into the world’s oceans every minute.⁷⁰ Slow plastic breakdown generates microplastics that ocean currents circulate throughout the world. Scientists now find microplastics in marine life from every kind of ocean habitat, from shallow coral reefs to deep-sea trenches.⁷¹ In May 2019, the Conference of the Parties to the Basel Convention amended Annexes II, VIII, and IX to define plastics as a hazardous waste and outlaw their disposal at sea.⁷² But international governance and oversight remains haphazard and unreliable.⁷³

Ocean dumping is a quintessential global problem. It inevitably impacts waters beyond sovereign territorial boundaries.⁷⁴ Yet few perpetrators are prosecuted for illegal ocean dumping. Without eyewitnesses, investigators often struggle to identify conclusively the precise source of marine pollution. It can also be tricky at trial to prove causality and other elements of criminal offenses, including the perpetrators’ intent or their subjective awareness of the potential for environmental harm. Scientists can detect and measure different types of ocean pollution, but building a case for criminal prosecution generally requires larger-scale investigations by environmental protection and law enforcement agencies.

International law has long struggled to combat toxic pollution. Several international agreements presently prohibit ocean dumping, including the MARPOL and the London Convention.⁷⁵ UNCLOS also requires states to control marine pollution.⁷⁶ Further, several regional agreements ban ocean dumping.⁷⁷ However, enforcement of anti-dumping laws is highly uneven. In some countries, waste disposal is tightly regulated with high penalties for violations of domestic environmental protections. In others, enforcement is non-existent. Reporting and compliance problems also persist at the domestic level, with few options to internationalize enforcement.

Selective international criminalization offers a path forward to hold ocean polluters accountable for harmful dumping on the high seas. Current agreements generally lack powers to punish individual violators, especially when dumping happens beyond a state’s territorial waters. Enforcement depends almost entirely on the actions of domestic officials, who may lack resources or an interest in investigating ocean pollution.

Global courts and international prosecutors often have more autonomy than local officials or state agencies to investigate offshore crimes and bring criminal charges. They can also investigate ocean dumping as a crime of omission and prosecute state inaction to stop ocean dumping. If international investigations document ongoing ocean pollution, prosecutors can either charge polluters or threaten prosecution to encourage compliance with existing international prohibitions. The criminal investigations and option to prosecute, even when international prosecutors elect not to bring criminal charges, also expresses a shared global commitment to ocean protection.

As with other international criminal investigations, state leaders may try to obstruct investigations, a practice that is sometimes effective at impeding the criminal process.⁷⁸ But this should not distract from the expressive power that targeted criminalization gives international prosecutors to bring global attention to serious environmental crimes at sea. The mere public threat of prosecution can deter some kinds of ocean destruction, even when criminal investigations or prosecutions never occur.

B. Illegal, Unreported and Unregulated Fishing

Illegal, unreported, and unregulated (“IUU”) fishing operations are highly-profitable and annually generate between an estimated $10 and $23 billion worldwide.⁷⁹ However, the consequences of IUU fishing can be devastating. IUU fishing depletes fish stocks and inhibits long-term sustainability. It undermines domestic and regional fisheries management and, more universally, ocean conservation. A lack of accountability for IUU fishing can also undercut state governance regimes and disadvantage responsible fishers who abide by existing environmental regulations.⁸⁰

Whales, sharks, turtles, and other protected species have been hunted to near extinction in many regions. IUU fishing tends to target vulnerable marine stocks that are often subject to controls specifically created to prevent fishery collapse. Unreported catches often interfere with essential management plans designed to aid species recovery and to restore the ecological balance, biodiversity, and sustainability of marine environments. IUU fishing also generates food insecurity for coastal communities dependent on local hauls for protein.⁸¹ Absent effective fisheries enforcement, climate change will likely compound these issues.

Prosecuting IUU fishing offenses can be challenging for a variety of reasons. Fishery managers usually have few resources for patrols or boat inspections and depend on fishers’ self-reporting of their catches and fishing methods. At the same time, the absence of high seas patrols makes detection unlikely beyond coastal waters. Illicit operators can hide illegal catches in several ways. Captains can offload catches to bribed port authorities or others complicit with their criminal enterprise. Fish can be processed offshore or relabeled to avoid detection. Crews from vessels employing illicit fishing methods, such as bottom trawling, can mix their catches with fish caught legally before returning to port.

Decentralized IUU fishing operations regularly cross jurisdictional lines, making it difficult to identify or track illegal boats or to target those most responsible for organizing criminal networks.⁸² Migrants and captive fishers may be forced to work on unregistered ghost ships where they engage in various forms of unregulated or illegal fishing. Those who attempt to leave can be shackled, sealed below deck, or even cast overboard.⁸³ State enforcement agencies also regularly ignore IUU fishing practices, which offer short-term benefits to coastal communities or provide supplemental income through patronage networks. Corruption and willful blindness to illegality continues to be a major obstacle to oceanic accountability for IUU fishing.

To be clear, there is no shortage of international agreements on fisheries.⁸⁴ But while UNCLOS and the UN Food and Agriculture Organization (“FAO”) are responsible for investigating IUU fishing, these bodies often hamper criminal accountability for perpetrators. Article 73(3) of UNCLOS, for example, authorizes coastal state penalties for fishing violations in EEZs but explicitly forbids imprisonment of offenders absent a bilateral agreement to the contrary.⁸⁵

State leaders must balance protection of fish stocks under current international and regional fisheries’ agreements against other state interests, including economic growth and national security. Consequently, many state governments take no notice of IUU fishing when other salient national interests are at stake. This partly explains why government IUU prosecutions are exceedingly rare. National law enforcement authorities often tolerate wrongdoing in their own civilian fishing fleets.

Efforts to combat IUU fishing generally focus on regulatory enforcement and treat illegal catches as management problems to be addressed by administrative state agencies rather than free-standing criminal offenses. State prosecutions and official public accounts of IUU fishing frequently attribute criminality to personal greed and rouge captains, even when sophisticated global criminal syndicates are known to run IUU fishing operations.⁸⁶ Targeted international criminalization of IUU fishing can empower international prosecutors to investigate global IUU criminal networks, which often extend beyond any single national jurisdiction.

Some IUU-related crimes, including human trafficking and seafood slavery, are already investigated and prosecuted in national jurisdictions. But international criminalization potentially broadens the scope of criminal culpability to include criminal offenses against the environment. International prosecutors can bypass corrupt port officials and domestic agencies complicit in IUU activities and lead investigations of powerful individuals, including high-ranking corporate financiers, who are involved in global IUU fishing. International criminalization individualizes culpability for serious ecological damages that transgress national jurisdictions. It also facilitates accountability for perpetrators engaged in transnational criminal enterprises that destroy marine environments. Further, following criminal convictions, international courts can order criminal reparations to aid the defense and restoration of depleted fish stocks. Criminalization of grave ocean crimes empowers international courts to serve as sentinels of marine environments.

C. Seabed Destruction

Seabed ecosystems increasingly face threats from illegal trawling and deep-sea mining.⁸⁷ Despite grave and well-documented environmental costs, bottom trawling remains the most common seabed fishing method employed on the high seas.⁸⁸ Deep sea mining exploration and exploitation activities also increasingly threaten seabed environments.⁸⁹

The Clarion-Clipperton Zone (“CCZ”) in the Pacific Ocean is an area roughly the size of Europe, spanning more than 3,000 miles at depths of 12,000 to 18,000 feet.⁹⁰ The CCZ seabed is rich in polymetallic nodules, a potential source of metals needed for lithium-ion batteries and other green energy technologies.⁹¹ Deep-sea mining could begin there in the next few years.⁹² Because the area lies in international waters, the International Seabed Authority (“ISA”) governs mining in the CCZ.⁹³ Companies seeking to mine the area must partner with a UNCLOS member country and apply for authorization from the ISA—a UN agency with fifty employees, a modest annual budget, and a jurisdiction that covers half the world.⁹⁴ As it stands, more than a dozen international companies have exploration contracts for the CCZ.⁹⁵ A 2022 ocean trial conducted by The Metals Company, a Canadian-based mining company that has partnered with Nauru to start mining the CCZ, generated fierce debate and opposition from some UNCLOS member states, including several states that are now seeking a moratorium on deep-sea mining operations.⁹⁶

Understanding the environmental consequences of mining the CCZ is complicated by the depths of mining operations and the current lack of information about deep-sea ecology.⁹⁷ Marine scientists estimate that ninety percent of species living in the region earmarked for mining remain undescribed.⁹⁸ Mining advocates argue that environmental damage from seabed mining is minimal when compared to land-based operations, and underscore the need for manganese, iron, copper, nickel, cobalt, lead, zinc, lithium, and rare earth elements to transition to green energy.⁹⁹ Conservationists strongly disagree with mining advocates about the environmental harms of deep-sea mining. They argue that mining operations will gouge the seabed and cause plumes of sediment to enter the water column and resettle over delicate ecosystems.¹⁰⁰ They seek a moratorium on mining until more environmental assessments can be completed on the impact of mining operations.

Presently, the science on the impact of deep-sea mining is nascent.¹⁰¹ Scientists have limited access to such remote depths and insufficient data on deep-sea species, habitats, and ecosystems. Consequently, deep-sea research has neither produced clear baseline data nor determined how sediment plumes will impact marine life on the sea floor.¹⁰² Scientists continue to identify new marine species during expeditions to the ocean floor but still know little about how mining will impact these species. Many deep-sea species are uniquely adapted living thousands of feet below the surface, where they thrive in near-total blackness and under immense water pressure. At such depths, metabolism and evolution slow, and even minor alterations of the environment can have long-term impacts.

Despite the lack of knowledge about deep-sea species, dozens of countries have started to plan mining operations for the near future. In 2017, Japan was the first country to mine its seabed and chose a location off the coast of Okinawa.¹⁰³ Norway also recently discovered rich seabed deposits and authorized further seabed exploration.¹⁰⁴ Mining companies already have begun prospecting for nodules to assess their size, composition, and economic value.¹⁰⁵ Absent political support for a temporary moratorium on seabed exploitation, large-scale commercial operations will likely begin in the next few years.

In the 1960s, Maltese Ambassador Arvid Pardo declared the seabed “the common heritage of all (hu)mankind.”¹⁰⁶ He advocated for an international governance regime to ensure deep sea resources benefited all of humanity, emphasizing the needs of less developed countries to share in any benefits of seabed exploitation. His advocacy eventually resulted in the Law of Sea Convention and the establishment of the International Seabed Authority. His concern that seabed resources serve our common heritage, in particular, seem prescient today. Technological advances and increased demand for mineral resources have renewed interest in mining the sea floor, especially as land-based mineral deposits decline. But the environmental consequences of such offshore operations are still unknown, and perhaps unknowable in the coming decade.

As demand grows, mining pressures will continue to increase, and more countries will partner with large corporations to exploit the deep sea.¹⁰⁷ Lackluster supervision of deep-sea mining operations and no real threat of criminal prosecution from partner countries creates well-founded fears that mining companies will be able to operate with impunity.¹⁰⁸ Under ISA contractual arrangements, companies are required to undertake baseline studies and conduct annual environmental assessments.¹⁰⁹ The ISA is tasked with judging these environmental assessment plans and determining the likelihood of compliance before they grant mining permits. However, once companies have permits in hand, the system relies on self-policing. Many conservationists believe this lack of mining operations oversight – combined with companies’ profit motive—will inevitably result in a tragedy of the deep-sea commons.¹¹⁰

International prosecutions, however, could help to ensure compliance with ISA regulations and deter companies from intentionally generating severe environmental harms. The possibility of individual criminal punishments for wanton acts of environmental destruction puts company officials on notice.

Further, the reparations processes that follow international criminal prosecutions could provide added resources to coastal communities and oversight agencies if company executives act illegally and conceal their criminal activities. Reparations decisions could also generate funds for the restoration and protection of marine life in the deep sea. Nature is resilient when provided the chance to recover. Criminal prosecutions and post-conviction reparations could help to ensure that environmental damage from mining violations stops with the first bad actor and that damaged sectors have time to recover before other operations can begin.

III. INTERNATIONAL CRIMINALIZATION

No global organization monitors environmental ocean crime or coordinates national enforcement efforts to protect marine environments. As a result, accountability for offshore environmental crimes depends on an incomplete jigsaw puzzle of enforcement regimes. State agencies and international organizations tasked with combatting transnational organized crime or protecting the marine environment from illegal fishing and toxic dumping often lack the capacity to address even the most egregious and visible ocean violations. Few offshore environmental crimes are ever investigated or prosecuted, even when marine scientists and conservation groups document permanent and extensive environmental harms.

Human rights scholars have rightfully criticized the punitive focus of international law, especially when the focus on criminal accountability and retributive punishment eclipses more reparative approaches to human rights and transitional justice. Some scholars argue that the turn to criminal law in international justice distracts from less visible forms of state violence and global efforts to grapple with persistent structures of social inequality.¹¹¹ Under this view, criminalization diverts attention and resources from endeavors to combat poverty, racial discrimination, and enduring forms of colonial domination.

Uncritical criminalization is a disturbing problem, and that is not what I suggest here. However, any serious global effort to address the climate crisis will need enforcement mechanisms to provide greater accountability for environmental harms beyond national jurisdictions. Rapid climate changes and environmental degradation demand innovations to improve ocean governance and ensure ocean protection. Targeted international criminalization of serious ocean crimes can provide critical tools to investigate environmental destruction at sea and to deter future harms.¹¹² Criminalizing environmental atrocities can also reinforce the legal status of oceans as the common heritage of humankind and encourage a shift toward greater ecocentrism in international justice.

International criminalization could also facilitate the investigation and prosecution of transnational criminal networks and other groups acting in concert to circumvent environmental protections even when national officials oppose accountability efforts. Organized criminal syndicates engage in various types of illegal fishing and toxic dumping that pose significant threats to marine environments. International criminalization could enable criminal cases against syndicate members independent of domestic interest or capacity to bring criminal charges.

International criminalization could further authorize criminal charges in cases where state officials fail to undertake obligatory actions to protect marine environments. Willful inaction, at least under certain conditions, amounts to a crime of omission. National environmental laws routinely fail to protect marine environments because state authorities are unwilling to enforce the rule of law. International criminalization could help to outlaw official inaction that results in serious ocean destruction and advance efforts to establish an international environmental duty of care.¹¹³ Even when the international criminal investigation of a state official’s failure to protect the marine environment does not result in criminal charges, it could still encourage greater compliance with existing environmental regulations and improve regional cooperation on ocean governance. International criminalization communicates a global concern for ocean protection that promotes dialogue and cooperation even in the absence of criminal prosecutions. Criminalization of environmental offenses on the high seas could also direct international attention toward invisible ocean harms often neglected by international criminal courts.¹¹⁴

The present incapacity of the international community to hold perpetrators accountable for ocean crimes abandons nearly all maritime enforcement to state and local officials, who often have vested interests in ongoing practices of oceanic impunity. International criminalization, in contrast, offers a potential solution to the problem of state corruption and complicity. Inadequate domestic enforcement of environmental law frequently results in environmental harms that cross borders and warrant international concern. Mare liberum or freedom of the seas has been a foundational principle of ocean law for centuries, dating back to the writings of Hugo Grotius.¹¹⁵ This idea of free seas has remained the backbone of ocean governance. But unconditional free seas are no longer defensible in the Anthropocene. Governance models based solely on the principle of free seas often legitimate careless national policies and encourage exploitation and destruction of vulnerable ocean environments.

Accountability is a primary aim of international justice.¹¹⁶ Yet, no single state institution or solitary judicial body can respond to the complex challenges posed by oceanic impunity. Various organizations, law enforcement agencies, and courts play complementary roles in collective responses to transnational criminality and environmental degradation at sea. International criminalization offers a useful, if limited, means to improve accountability for ocean criminality and better coordinate global responses to offshore environmental destruction.

The following section discusses two options for targeted forms of international criminalization. First, the Article discusses the expanded use of suppression conventions to encourage multilateral criminalization of ocean crimes. Criminalization, under the right conditions, enhances environmental compliance and supports international cooperation. Second, the Article discusses Rome Statute amendments that would allow the ICC to investigate certain oceanic crimes of ecocide. Amending the Rome Statute to include the crime of ecocide could transform the ICC into an environmental court of last resort. However, despite the potential benefits of internationally prosecuting ocean crimes, international criminalization should still be viewed as a limited tool for seeking justice and improving environmental ocean protection.

A. Suppression Conventions and Voluntary Instruments

Suppression conventions are an alternative mechanism for targeted international criminalization. Suppression conventions are multilateral agreements that require signatories to criminalize certain kinds of activities.¹¹⁷ The threshold for criminalization depends upon the objectives of the sovereign states signing the agreement, but the promise of criminalization signals a mutual commitment to transnational enforcement. Suppression conventions, therefore, help coordinate law enforcement responses by defining substantive legal prohibitions, establishing jurisdictional boundaries, and authorizing procedures for cooperation and investigative methods. Historically, suppression conventions have addressed a range of criminal activities from slavery and human trafficking to serious violations of international and customary law.

Suppression conventions that criminalize environmental harms are particularly salient in the context of oceanic impunity because of shortfalls in environmental monitoring and enforcement in EEZs and on the high seas. The freedom of the seas principle generally sanctions unencumbered maritime navigation and unrestricted resource exploitation beyond national jurisdictions, which disincentivizes the monitoring of oceanic harms and often precludes enforcement actions.

Suppression conventions provide two distinct paths for international criminalization. First, state officials can negotiate new stand-alone suppression conventions. These novel agreements could address a broad range of ocean crimes or be tailored to address a specific category of offshore criminality. For example, like-minded states could establish a suppression convention to address biodiversity loss in designated marine protected areas and as part of the convention members states could collectively criminalize specific activities that result in species or habitat destruction. Alternatively, states concerned about protecting migratory routes for pelagic species could negotiate a suppression convention to criminalize fisheries exploitation near migratory seamounts or agree to collectively police important migratory territories.

Because suppression conventions generally require the incorporation of crimes into national criminal codes, the enactment of suppression conventions could also improve monitoring and enforcement within national jurisdictions, thus improving accountability for oceanic impunity in domestic waters. The domestication of environmental crimes in suppression conventions in some instances could also permit investigations and prosecutions of corporate actors, thereby extending corporate liability for offshore environmental crimes. The utility of these stand-alone suppression conventions would be illustrated if and when a smaller group of interested states developed independent suppression conventions and thereby encouraged a larger community of states to recognize specific ocean crimes.

The second path that suppression conventions offer for international criminalization is that lawmakers already bound by an existing convention could seek to amend it or to enact new protocols that expand its scope. For example, States’ parties to the United Nations Convention against Transnational Organized Crime (“UNTOC”) could file a resolution at the UNTOC Conference of the Parties to categorize certain ocean crimes as serious crimes under the existing framework agreement and, thereby, establish mutual obligations to investigate and prosecute those ocean crimes. States’ parties could also otherwise develop a new protocol outside of the existing framework to supplement the UNTOC. Supplemental protocols have the advantage of cultivating new forms of cooperation among treaty members while also preserving general procedural rules and provisions.

Amendments or additional protocols that incorporate new ocean crimes or binding enforcement provisions could strengthen a range of existing international conventions without scrapping or undermining established agreements. For example, the International Convention for the Regulation of Whaling requires member states to take appropriate measures to punish violators of the convention.¹¹⁸ Present provisions, however, do not include any criminal penalties. Likewise, the Convention for the Prevention of Marine Pollution from Land-Based Sources requires member states to ensure compliance and to punish conduct that contravenes the agreement. But again, the present provisions do not explicitly authorize any criminal punishments. Amendments or additional protocols to established conventions could strengthen enforcement regimes by authorizing some criminal punishments.

Voluntary instruments are an alternative to suppression conventions for criminalization of environmentally destructive activities at sea. They generally operate independent of binding commitments negotiated by participating states. These voluntary instruments, for example, might be simple declarations that define a new ocean crime or articulate a shared commitment to investigate and prosecute a specific environmental harm. While such non-binding instruments often depend on implementation agreements and generally function more as regulatory compliance regimes, they can still accelerate multilateral enforcement coordination and legal harmonization in ocean governance. The adoption of voluntary instruments can further express states’ shared commitment to environmental conservation and communicate a more ecocentric approach to international law.

Suppression conventions and voluntary instruments are no panacea for oceanic impunity. However, they are adaptable instruments of multilateralism and, as such, provide alternative pathways for states concerned with ongoing environmental crimes to strengthen environmental monitoring and enforcement at sea.

B. International Criminal Courts

International criminal courts are possible mechanisms to investigate and prosecute oceanic impunity. International criminal law has long acknowledged environmental destruction—from aerial bombing campaigns during the Second World War to Agent Orange defoliation programs in the Vietnam War. However, international prosecutors have not traditionally focused on environmental harms in case selection or charging decisions.¹¹⁹ Most acts that cause serious environmental damage are not defined as international crimes whether perpetrated on land or at sea.

1. Rome Statute

As ratified, only one article in the Rome Statute, the ICC’s legal foundation, addresses environmental crimes. Article 8(2)(b)(iv) defines “war crimes” to include the following:

Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.¹²⁰

Article 8(2)(b)(iv) creates possibilities for environmental war crime prosecutions and expands individualized criminal accountability for environmental offenses committed during armed conflicts.¹²¹ The Article also recognizes environmental damage as a stand-alone offense that need not relate directly to human injuries. In this way, Article 8(2)(b)(iv) moves away from traditional anthropocentrism in international criminal law and closer to an ecocentric vision of international justice.¹²²

However, Article 8(2)(b)(iv) has significant limitations. The definition of environmental destruction requires that harms be “widespread, long-term and severe” but these terms are undefined. As a result, the ICC Office of the Prosecutor (“OTP”) has wide discretion to interpret the language and to decide what kinds of environmental damage fall under the Article’s purview. The exercise of such discretion can irregularly prioritize environmental crimes and raise questions about both fair notice and equitable enforcement.

Article 8(2)(b)(iv) also includes a proportionality requirement that restricts its applicability during armed conflict.¹²³ Acts causing environmental damage must be “clearly excessive” in relation to any anticipated military advantage.¹²⁴ This threshold for disproportionate violations gives military officials significant leeway to defend strategic strikes, even when military actions result in severe environmental harms.¹²⁵ Further, to satisfy the mens rea requirement for the offense international prosecutors must establish the defendant’s subjective knowledge of the attack’s disproportionality, which creates a high threshold that must be crossed to secure convictions for environmental destruction.

Finally, and most concerning, Article 8(2)(b)(iv) only covers environmental damage inflicted during armed conflict.¹²⁶ Environmental crimes that happen in times of peace, therefore, fall outside the scope of the Article.

2. Ecocide

The crime of ecocide could provide a pathway to prosecute serious ocean crimes perpetrated outside of armed conflicts. Campaigns to criminalize ecocide as an international crime began in the 1970s but for decades failed to gain widespread public support.¹²⁷ But growing awareness about environmental degradation and the climate crisis have resurrected past ecocide debates. In February, the European Union Parliament became the first international body to criminalize serious environmental damage as “cases comparable to ecocide.”¹²⁸ Advocates for criminalization now include a range of world leaders from environmentalist Greta Thunberg to Pope Francis.¹²⁹ Viewed amid their concerns about accelerating environmental degradation, supporters emphasize ecocide’s moral force and expressive power.¹³⁰ They argue that ecocide prosecutions would raise the global profile of environmental crimes, which are too often treated as second order crimes.

In 2021, an independent panel of international criminal law experts published a definition of “ecocide” for consideration as an amendment to the Rome Statute.¹³¹ Subsequent debate on the definition evidences burgeoning interest in the criminalization of ecocide.¹³² The panel definition reads: “‘[E]cocide’ means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.”¹³³

The proposed definition would significantly broaden the scope of criminal culpability for environmental destruction and clarifies some critical statutory terms. As described above, although ICC prosecutors must establish that international crimes are “severe,” “widespread,” and “long-term,” the Rome Statute does not explicitly define these essential terms.¹³⁴ This lack of statutory clarity would make it difficult for OTP to determine whether specific environmental harms would satisfy the legal threshold for ecocide. The new draft definition solves this problem by clarifying the terms as follows:

“Severe” means damage which involves very serious adverse changes, disruption or harm to any element of the environment, including grave impacts on human life or natural, cultural or economic resources;

“Widespread” means damage which extends beyond a limited geographic area, crosses state boundaries, or is suffered by an entire ecosystem or species or a large number of human beings;

“Long-term” means damage which is irreversible or which cannot be redressed through natural recovery within a reasonable period of time.¹³⁵

In addition to clarification of the legal elements, the independent panel definition enables crimes to be prosecuted during peacetime, discarding the previous requirement to show a nexus between the environmental harm and an armed international conflict. This change recognizes that environmental atrocities frequently happen outside of war. The new definition also criminalizes acts irrespective of their connection to a civilian population or the boundaries of state territories. Individuals can be prosecuted for ecocide even when environmental damage does no harm to people. This change potentially brings corporate officials under the scope of criminal culpability if they engage in unlawful or wanton acts when they are aware of the substantial likelihood of severe and long-term environmental damage.

The proposed definition of ecocide further criminalizes acts of omission under some circumstances. With environmental harms, the failure to act—whether to prevent damage or to stop its continuance—can be as devastating as affirmative acts of destruction. Under the draft definition, global prosecutors would have the ability to investigate perpetrators responsible for serious and ongoing environmental dumping, illegal fishing, or unlawful mining operations. In some cases, even gross failures to prevent greenhouse gas emissions could result in potential criminal liability. Expanded international criminal culpability could help to safeguard domestic environmental protections and encourage criminal investigations of state officials complicit in serious oceanic crimes or other significant crimes against nature. Enlarging the scope of criminal culpability could also improve state compliance with environmental treaties, conventions, and voluntary instruments if the threat of international criminal investigation deters violations by state officials and corporate leaders.¹³⁶

Support for a more ecocentric approach to international criminal justice has not been limited to forces outside the ICC. In recent years, the OTP has gestured toward greater engagement with environmental concerns. In 2016, the OTP issued new guidance requiring international prosecutors to consider environmental consequences in evaluating the gravity of crimes and giving particular weight to crimes that result in environmental destruction, illegal exploitation of natural resources, or illegal dispossession of land.¹³⁷ New guidelines also explicitly recognize environmental destruction as a factor in decisions to launch preliminary investigations and select cases for prosecution.¹³⁸ The OTP customarily selects investigations and prosecutions based on the gravity of alleged crimes and on the degree of responsibility of the alleged perpetrators. In the gravity analysis, prosecutors normally consider the scale, nature, manner of commission, and impact of the alleged crimes on human victims.¹³⁹ Harms to the environment are now also weighed as significant factors in the gravity analysis.

ICC member states have also started to lobby for the crime of ecocide and requested investigations into serious environmental crimes. In 2019, for example, several island nations, including Vanuatu and the Maldives, called for ICC member states to consider the addition of ecocide as a core crime at the annual Assembly of States’ Parties Conference. The ICC has also received at least five formal complaints alleging serious environmental crimes in the Brazilian Amazon, opening a preliminary evaluation of its jurisdiction in one of the cases in 2020.¹⁴⁰ In June 2023, Ukraine officials accused Russia of committing environmental war crimes and ecocide by destroying the Kakhovka dam, which caused severe flooding and environmental damage.¹⁴¹ In February 2024, the ICC Chief Prosecutor, Mr. Karim A.A. Khan KC, announced a new policy initiative to advance accountability for environmental crimes. He stated:

“Damage to the environment poses an existential threat to all life on the planet. For that reason, I am firmly committed to ensuring that my Office systematically addresses environmental crimes in all stages of its work, from preliminary examinations to prosecutions. This latest policy initiative is another commitment to this necessary objective.”¹⁴²

3. Ecocide and Oceanic Impunity

Amending the Rome Statute to include ecocide as a core international crime would likely advance efforts to combat oceanic impunity for several reasons.¹⁴³ Ecocide prosecutions would facilitate ICC investigations of environmental violations committed in the territorial seas of ICC member states and also violations committed by member state nationals. The ICC could claim jurisdiction over ocean crimes committed on ships sailing under member state flags, even when law enforcement authorities in those member states are unwilling or unable to investigate the crimes. While ICC jurisdiction in the EEZs of member states and on the high seas remains in question, ICC investigations would likely avoid some jurisdictional challenges associated with flags of convenience as the most notorious flag states, including Panama and Liberia, are current parties to the Rome Statute.¹⁴⁴

Making ecocide an international crime could also empower international prosecutors to take on a larger role in environmental protection at sea.¹⁴⁵ The ICC operates as an independent judicial institution authorized by the Rome Statute to investigate international crimes and seek accountability even when state officials are complicit in the criminal acts or oppose ICC investigations. As a permanent court of last resort, the ICC has the legal authority to prosecute international crimes when state agencies are unable or unwilling to do so.¹⁴⁶ Arguably, a global court insulated from domestic political pressures and interest groups could more effectively monitor criminality at sea and perhaps intervene before severe and long-term ocean violations arise, thereby preventing future environmental harms.¹⁴⁷

Amending the Rome Statute to include the crime of ecocide could lead to major institutional changes for the ICC.¹⁴⁸ The new crime would broaden the scope of criminal liability to include a range of environmental harms and promote a more ecocentric approach to international justice. For the first time in the history of international criminal law, serious crimes against nature could be prosecuted during peacetime independent of injuries to human beings. Ecocide investigations could also explore forms of “slow violence” that impact the environment.¹⁴⁹ Tasked with a duty to protect nature, the ICC could consider scientific indicators of environmental decline and climate impacts in the gravity analysis of alleged crimes. Ecocide prosecutions might also contribute to public dialogues about justice and accountability for coastal communities impacted by extreme environmental changes.¹⁵⁰ The ICC Chief Prosecutor could take a leading role in shaping the field of international environmental law and global sustainability through preliminary investigations and case selection. Meanwhile, ICC judges could contribute to the development of jurisprudence on international environmental crimes.

Ecocide also potentially expands the significance of the ICC Chief Prosecutor’s proprio motu power and encourages individual informants and nongovernmental sources to report serious environmental crimes directly to the OTP. Under the Rome Statute, ICC inquiries start in one of three ways: member states can refer a situation to the ICC; the UN Security Council, acting under its Chapter VII powers, can refer a situation to the ICC; or the ICC Chief Prosecutor can exercise proprio motu power and independently start an investigation.¹⁵¹ Because the ICC Chief Prosecutor has the power to initiate criminal investigations independent of states, informants with information or evidence about serious environmental crimes would have a direct channel to provide information to the court without involving state officials or domestic law enforcement. Informants might likewise report information about global criminal syndicates to the ICC even when they fear retaliation from syndicate members or domestic authorities. The ICC Chief Prosecutor might also properly exercise proprio motu power to express shared normative commitments to environmental protection.¹⁵²

Ecocide prosecutions over time might also establish ocean crimes as jus cogens offenses and thereby prevent state derogations from obligations to protect the marine environment in future international agreements. International state practice continues to evolve rapidly in response to divergent forms of ocean criminality. Customary law will also need to adapt to new priorities in ocean governance and environmental protection.¹⁵³

International ecocide prosecutions would signal an ecocentric shift in international criminal justice. Ecocide would be the first international crime to address non-human violations outside of armed conflict. In contrast to previous international crimes, a criminal conviction for ecocide would be possible without any evidence of human injury or suffering. By holding out crimes against nature as the moral equivalents of other atrocity crimes, ecocide prosecutions could advance a vision of international justice that recognizes both our ecological interdependence and the intrinsic value of nature.¹⁵⁴ The activities of humanity at sea will likely accelerate in the coming decades and continue to impact climate change.¹⁵⁵ If empowered by the global community to prosecute environmental crimes, the ICC could help to moderate offshore environmental harms by prosecuting those people most responsible for illegal destruction of marine environments and expressing a global commitment to ocean protection.¹⁵⁶

The idea of an environmentalist ICC presently seems utopian. But the climate crisis will transform priorities for criminal accountability and international criminal justice in the next decade. In the meantime, the international community can no longer afford to abdicate responsibility for ocean governance to national authorities. The next generation of international prosecutors must merge international environmental law and international criminal law to respond to the urgent and existential environmental threats to oceans and the planet.¹⁵⁷

CONCLUSION

This Article advances a relational approach to the study of oceanic impunity. Building on scholarship in international criminal law, marine ecology, and relational sociology, the Article proposes targeted international criminalization to increase offshore accountability for severe environmental harms.

National law enforcement has mostly failed to protect marine environments or to combat widespread oceanic impunity. State agencies tasked with investigating offshore criminality routinely have insufficient resources to patrol waters under their jurisdiction. Beyond national jurisdictions, no single organization monitors environmental ocean crimes or coordinates law enforcement efforts.

This Article describes three critical ocean crimes—ocean pollution, illegal fishing, and seabed destruction—and suggests two international options for improving accountability at sea. First, suppression conventions could establish compulsory obligations to criminalize certain ocean crimes and encourage the development of multilateral enforcement regimes. Second, international criminal courts could investigate and prosecute serious environmental crimes. Amending the Rome Statute to include ecocide, for example, could empower ICC prosecutors to investigate serious ocean crimes and allow the ICC to operate as an environmental court of last resort. Targeted forms of international criminalization could also help to harmonize definitions of environmental ocean crimes and improve intelligence sharing and evidence gathering in criminal investigations and prosecutions.

In the Anthropocene, international cooperation to end oceanic impunity is essential to confront the climate crisis. Beyond theories of criminal retribution or deterrence, international criminalization and the investigation of serious environmental harms has expressive value. Environmental prosecutions signal an ecocentric shift in international criminal justice and promote a shared global commitment to ocean protection. Recognizing our inextricable relations with nature, ecocentrism presents an ontological challenge to the traditional anthropocentrism of international criminal law.¹⁵⁸

Healthy oceans and seas will ultimately depend on more than criminalization, however. International criminal prosecutions are insufficient instruments to achieve comprehensive ocean governance, and criminal punishments alone cannot address the most pressing problems facing oceans or coastal communities. Combatting oceanic impunity and ecological disaster requires deeper commitments to international cooperation. In addition to targeted criminalization, state lawmakers must make oceans a priority and collaborate to protect marine biodiversity beyond national jurisdictions, fund international organizations tasked with ocean governance, and establish more marine protected areas.

97 S. Cal. L. Rev. 637

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Stephen Cody*

* Associate Professor of Law, Suffolk University Law School. Thanks to Amanda Beck, Sarah Burstein, Kevin Davis, William Dodge, Andrew Van Duyn, Laurel Fletcher, Maryam Jamshidi, Chimène Keitner, Steve Koh, Cody Corliss, Katerina Linos, Xander Meise, Saira Mohammed, Sharmila Murthy, Julie O’Sullivan, Dan Richman, Wadie Said, Guillermo Garcia Sanchez, Shayak Sarkar, Daimeon Shanks, David Sloss, Melissa Stewart, Pierre-Hughes Verdier, Joshua Weishart, and participants in the Faculty Workshop on Global Criminal Justice at Boston College, the Northern California International Law Scholarship Workshop at Berkeley Law, and the Junior International Law Faculty Workshop at Boston University. All errors are mine.

Filtered Dragnets and the Anti-Authoritarian Fourth Amendment

July 2024July 2024Jane R. Bambauer*

Filtered dragnets are digital searches that identify a suspect based on the details of a crime. They can be designed to withhold information from law enforcement unless and until there is a very high probability that the individual has committed the offense. Examples today include DNA matching, facial recognition from photographs or video of a crime, automated child sexual abuse material detection, and reverse geolocation (geofence) searches. More are sure to come, and their wide-scale use will be irresistible to improve the low rates of criminal detection that currently afflict many communities.

However, filtered dragnets imperil society precisely because they detect crime too well. Sudden increases in the detection of criminal conduct will intensify the pathologies of American criminal justice: namely, that too many marginally harmful acts are criminalized, crimes are punished too harshly, and police and prosecutors have too much discretion. If nearly everybody commits some technical violation of criminal law that can be easily detected and harshly punished, all Americans will be at the mercy of the constable’s pity.

These threats are not well constrained by current Fourth Amendment jurisprudence, based on privacy rights, because filtered dragnets detect crime without revealing irrelevant details. Thus, Fourth Amendment theory and doctrine must strengthen the anti-authoritarian objectives endowed in its roots. A search conducted with a filtered dragnet should be considered reasonable only if it is administered in an evenhanded manner, and a subsequent seizure of a person is reasonable only when the misconduct is abhorrent enough to justify arrest and imprisonment.

INTRODUCTION

Nearly forty years ago, Justice Brennan asked his colleagues, who had just given a constitutional stamp of approval to the drug-sniffing dog, to imagine a device “that, when aimed at a person, would detect instantaneously whether the person is carrying cocaine.”¹ If the device could detect the presence of cocaine inside a building, “there would be no constitutional obstacle to the police cruising through a residential neighborhood and using the device to identify all homes in which the drug is present.”² He believed the prospect of police having a tool of near-perfect detection presented a catastrophic threat that the courts have a duty to stop.

We are not too far off from this scenario anymore,³ and some strategies already in use by law enforcement and intelligence agencies are similar to Brennan’s machine. Examples include DNA matching, facial recognition from photographs or video of a crime when it was in progress, automated child sexual abuse material detection, and reverse digital searches (where police use information known about the crime, such as location, timing, or special instrumentalities, to cross-check against service provider data in order to identify a suspect). Many more of these investigative techniques are sure to come, especially if or when the Internet of Things reaches its potential by placing increasingly powerful sensors on nearly every machine.

Twenty-first century policing will increasingly use data collected from tracking and sensing technologies to conduct investigations that work backwards. Law enforcement will use the particulars of a crime as a “fingerprint,” so to speak, to determine who should belong in the pool of suspects. Unlike the standard dragnet, which permits law enforcement to observe large amounts of data and to choose their targets, filtered dragnets force investigations to focus on the evidence of a crime. Computers will automatically scan through data without exposing it and will make a disclosure only when there is probable cause to believe that a person’s data matches the signature of the crime. Moreover, even when data is disclosed, filtered dragnet programs can be designed so that the only data revealed is potentially relevant data; extraneous details can be withheld.

When surveillance technologies meet all these benchmarks—that is, when (1) they are used to find an individual related to a crime (rather than to find a crime related to an individual), (2) when they report details from an otherwise private database only after meeting a high threshold of confidence (e.g., probable cause or higher), and (3) when they withhold details that are ex ante unlikely to be relevant to the current criminal investigation, the nature of that surveillance is different from other types of police work. Filtered dragnets, as I will call them, are structured to avoid many problems traditionally associated with mass surveillance.

Fourth Amendment theory and reasoning is just starting to find its legs in digital search cases,⁴ but filtered dragnets will destabilize criminal procedure law again. They will whittle down most of the privacy rationales for Fourth Amendment protection. Mounting a Fourth Amendment defense will require a litigant to convincingly argue that even though the defendant very likely committed a crime, and even though the police did not see or have discretionary access to data for any other persons and did not even have irrelevant data about the defendant for that matter, the search was nevertheless unreasonable. That sort of privacy über alles argument might work for crimes of questionable legitimacy—drug possession, for example—but it won’t work in the context of universally reviled conduct like murder.

What is more, filtered dragnets may reduce privacy intrusions on net, as compared with current investigation techniques, because they can remove many people from the scope of suspicion who would otherwise become targets of investigation. In other words, filtered dragnets break the privacy-security trade-off because they simultaneously increase criminal detection and privacy. As Bennet Capers has explained, they may be a useful tool to simultaneously tackle under-protection and over-policing problems.⁵ Outright bans of these technologies, as have been advocated in many corners,⁶ would be irresponsible.⁷

Nevertheless, even if filtered dragnets detect crime and nothing else, they pose serious social risks that Fourth Amendment law and scholarship are ill equipped to handle: What happens to Fourth Amendment theory and the practice of criminal justice if nearly every crime could be detected?

In the late 1990s, Larry Lessig asked this very question.⁸ He anticipated that digital technologies may create a wedge between the privacy and anti-authoritarian rationales for criminal procedure. But most Fourth Amendment scholars do not even recognize a schism between privacy and anti-authoritarian goals. Instead, they continue to focus on privacy as the key constraint on any police activity that leverages large amounts of personal data. The scholars who have recognized liberty and anti-authoritarianism as a Fourth Amendment lodestar have insisted that all technology-assisted surveillance is a tool of abusive state power per se.⁹ As a result, Fourth Amendment scholars lump filtered dragnets with all other surveillance and advocate for the strictest access controls, guaranteeing the continuation of a low rate of criminal detection.

This is the wrong course. The threat from filtered dragnets is tyranny, and the Fourth Amendment will be more effective and coherent if we recognize that. Filtered dragnets will dramatically increase the detection of crime, and this will intensify existing pathologies in American criminal justice that have little to do with privacy. Namely, we have too many crimes, too much punishment, and too much police and prosecutorial discretion. These problems jointly produce the risk of authoritarian power. An overly expansive criminal code paired with harsh penalties ensures that nearly everybody could be subjected to incarceration.¹⁰ When the state also has unchecked power to choose where and when to investigate within the ocean of criminal-but-typically-ignored conduct, the populace is at the mercy of the state’s will.¹¹

Today, the criminal justice equilibrium rests on an unspoken compromise. The state has broad substantive law, harsh punishment, and unchecked discretion, it is true, but the populace has privacy rights that nearly guarantee low detection, even when police are highly motivated. When filtered dragnets give police near-perfect detection, the bargain has to be renegotiated.

This Article proposes a new grand bargain for Fourth Amendment law: the Supreme Court should recognize filtered dragnets as a legitimate and even desirable tool for criminal investigations. But constitutional rules should guarantee that the substance of American criminal law will be limited to conduct that is commonly recognized as heinous, that the severity of the punishment fits the reprehensibility of the crime, and that the enforcement of criminal laws is equitable and nonarbitrary.¹² Without these civil rights, if the substance of criminal law is left as broad and vague as it is today,¹³ and if penalties and the impact of prison are as debilitating as they are now, filtered dragnets would give the government the means of exercising tyrannical control through the omnipresent threat of criminal enforcement and the power of discretionary clemency.

This Article proceeds as follows: Part I describes some filtered dragnets that are already in use and lays out the essential features that distinguish them from other investigation tools.

Part II describes the potential social benefits that can be gained from the responsible use of filtered dragnets.

Part III describes the scholarship and caselaw challenging the constitutionality of filtered dragnets on privacy grounds and disagrees with it. By most common-sense meanings of privacy, filtered dragnets are in fact much more private than the sorts of investigations that routinely occur.

Part IV shows that the threat of filtered dragnets comes not in the form of privacy but in the form of tyranny. Perfect detection of crime in a system where criminal statutes are sprawling and criminal penalties are harsh will either create a country of convicts or will give government too much power to engage in selective leniency.

Part V reinterprets the Fourth Amendment prohibition of unreasonable searches and seizures to fit the criminal justice problems that emerging surveillance technologies will cause. The reasonableness of a seizure should depend on whether the defendant’s conduct truly warrants criminal liability and penalties. The reasonableness of a search should depend on both expectations of privacy and on evenhanded investigation practices.

Part VI explains why the Constitution, and the Fourth Amendment in particular, are well suited to carry out this shift even though it would mark a departure from twentieth century precedent.

The agenda laid out in this Article is ambitious—almost embarrassingly so. What I propose here would require a seismic shift in Fourth Amendment principles that would cross the procedural/substantive divide.¹⁴ Given that, I take comfort in the fact that I am not painting on blank canvas. This project is a remix of themes developed by Bill Stuntz,¹⁵ Bennett Capers,¹⁶ Elizabeth Joh,¹⁷ Bernard Harcourt and Tracey Meares,¹⁸ Chris Slobogin,¹⁹ Mark Kleiman,²⁰ and many others. Even so, it is awfully presumptuous to suggest courts might start invalidating criminal laws or sentencing rules using a new-fangled conception of the Fourth Amendment. But I will suggest it anyway because it is the only desirable and realistic option. The criminal justice system needs to be transformed in a manner that accepts much greater levels of detection in exchange for many fewer criminal prohibitions and punishments. It is a trade that has to be executed simultaneously in order to avoid disastrous consequences.²¹ No legislative or local government process could pull off a massive rights horse trade of the sort that is required. It can only be accomplished through the style of landmark constitutional cases that, every generation or so, help realign Fourth Amendment operational rules with the ultimate purpose of Fourth Amendment protection.²²

I. WHAT ARE FILTERED DRAGNETS?

The progenitors of filtered dragnets have been around for a while. Fingerprinting analysis is a well-known and time-honored method of backwards investigation where the facts from the scene of a crime (the fingerprint markings) are cross-checked against a large stockpile of information in order to make a fairly confident match to a particular suspect.²³ Police dogs are another example.²⁴ We know that the mind-boggling sensitivity of a dog’s nose is such that, if it could talk, it could reveal vast amounts of information about a person—what is inside their bag, how their health is, whether they’ve been in recent contact with other people—that are unobservable to we mere humans. In some sense, the mind of a police dog is a treasure trove of personal information that remains inaccessible to police most of the time. But when they are trained to alert to contraband or to specific scents sampled from a crime scene, the dog and the training combine to create a “binary search”—a mechanism that tells the police nothing unless there is probable cause that a crime is being committed.²⁵

These crime-driven, quasi-filtered investigations are the outliers in a system of police investigation that relies much more heavily on witnesses, confessions, and physical searches.²⁶ But we can expect the practice to rapidly expand because of the greater amounts and variability of data available for cross-checking the facts of a crime against data from the population of potential suspects.

This Part lays out the two required features of filtered dragnets that will cause an unprecedented shock to Fourth Amendment theory. We will then visit examples of techniques that are already in use that either already satisfy the definition of filtered dragnets or soon will.

A. Required Elements to Qualify as a Filtered Dragnet

Filtered dragnets provide a suspect’s data to police only if (a) their data matches uniquely criminal details such that there is a high probability they have engaged in criminal conduct; and (b) their data has been pared down to provide only relevant details about the suspected crime to the police. When combined, these features make filtered dragnets a qualitatively different style of police investigation.²⁷

1. Automated Matching of Uniquely Criminal Details

Filtered dragnet investigations will trawl through and process large amounts of data. There is no doubt that they are a dragnet. But to qualify as a filtered dragnet, the filter of the dragnet must constrain the system’s ability to leak information. A filtered dragnet must be programmed to alert police only if an individual’s data matches a unique fingerprint of a crime.²⁸ In other words, the system blinds the police until at least probable cause (and hopefully more suspicion) is established.

Filtered dragnets are a subset of the category of investigations that Christopher Slobogin calls “suspectless searches.”²⁹ But they are a narrow subset. Very few of the suspectless searches that Slobogin analyzes (many of which I describe below) have the potential to become filtered dragnets. As they are practiced today, they will not meet the heightened standards for filtered dragnets because they do not use unique signatures of criminal behavior. For example, geofencing and familial DNA-matching procedures often allow police today to access data about a handful of individuals, all but one of whom are necessarily innocent, in order to help the police create leads for traditional follow-up investigation. To find the Golden State Killer, the FBI found a genetic match to a family member, and then used traditional genealogy to trace from that family member to the suspect.³⁰ The revelation of that family member’s identity would not qualify as matching to “uniquely criminal detail.”

Slobogin argues that even when a small number of people, some of whom are guaranteed not to be the perpetrator (such as somebody whose DNA only partially matches that of the sample from a crime scene), are identified to the police, the intrusion into privacy is fairly minimal and should be handled through Fourth Amendment doctrines that allow for warrantless searches and seizures, like checkpoints.³¹ I agree with nearly all of Slobogin’s proposals about how courts should interpret the Fourth Amendment with respect to these examples. But they still do not meet the criteria I am setting—criteria that, when met, challenge the most basic conceptions of Fourth Amendment privacy. To meet the definition of a filtered dragnet for my purposes, police will remain ignorant to details and identities until there is a high probability that the information identifies and pertains to the perpetrators and no one else.

2. Nondisclosure of Irrelevant Details

The first requirement on its own ensures that filtered dragnets are analogous to “binary searches” like drug-sniffing dogs—the sort that alert only if there is probable cause of a crime. But there is an additional affordance that should be exploited: filtered dragnets must refine the information that is ultimately disclosed to police by filtering out personal, irrelevant details even about a suspect. This is equivalent to a drug-sniffing dog that could magically produce a suspect’s drugs without any of the rifling through cars and pockets that are necessary today. Thus, the suspect will retain privacy over details that are not relevant to the criminal investigation at hand.

To be clear, neither of these requirements are meant to be absolute guarantees. All systems have error, and even if police are able to set very demanding thresholds for false positives, police will occasionally access licit, irrelevant details when a filtered dragnet falsely identifies a suspect who is then subjected to an arrest or probable cause–based search. But the requirements for disclosure in a filtered dragnet system can be calibrated to fit societal needs and expectations: the chance of false accusation error can be driven down to practically zero if we would like, if we are willing to tolerate the consequences that there will be more false negatives (more crimes that are not detected) or that police departments will need to access more data in order to maintain the same level of detection.

A. Examples

Next, we will visit a set of backwards investigation techniques that are in use today. These use the particularities of a crime to lead police to a suspect. While most cannot meet the demanding definition of “filtered dragnet” formalized above, with time and additional data resources, they will surely get there.

1. DNA Matching

DNA-matching investigations use parts (non-revelatory portions) of a DNA sequence produced from a sample collected at a crime scene or from a crime victim in order to identify a suspect using DNA databases. They are an obvious extension of fingerprinting analyses with some souped-up features. First, DNA matching can set a very high threshold of statistical probability of true match (or, in other words, a very low probability of a false match) because each DNA sequence has a large amount of data.³² Second, they can make use of popular commercial and ancestry databases for cross-checking and are therefore not limited to identifying individuals who have a history with the criminal justice system.

Third, familial or partial DNA matches are very useful for police investigations in a way that partial fingerprint matching is not. In familial DNA-matching investigations, such as the one that eventually led to the arrest of the Golden State Killer, police departments recover the identity not of the suspect but of one or more of the suspect’s genetic relatives.³³ This raises privacy concerns for the relatives whose identities are revealed to law enforcement in the course of finding the perpetrator.³⁴ So, as practiced today, familial DNA searches do not fit the definition of a filtered dragnet. They fail the second element (filtering out innocent and irrelevant details) by revealing identities and information about family members who are definitely not the perpetrator of the crime.³⁵ However, it is conceivable that in the future, if multiple databases are able to be accessed and triangulated, familial DNA matching can be part of a filtered dragnet system that automatically finds a familial match, trawls other data sources in order to identify the correct relative of familial match (based on, e.g., age, location, or personal history of the relatives), and discloses the identity of the suspect and the relevant details only when and if there is sufficient confidence that the correct suspect has been identified.³⁶ All of this can be automated.

DNA evidence holds an esteemed place in criminal justice and public perception. DNA evidence is durable (as long as it is handled properly) and judges and juries can justifiably place a high degree of confidence in the reliability of DNA-matching investigations.³⁷ Other types of data beyond DNA can have these qualities, too, but they provoke much more suspicion and dissent. Distinguishing them from DNA matching will become increasingly untenable.

2. Facial Recognition

Facial recognition uses large databases of identified photographs (often scraped from the public Internet) to discover the identity of a person who would otherwise be anonymous.³⁸ The technology can be used as a filtered dragnet when police departments deploy facial recognition on photographic evidence from the scene of the crime.³⁹ For example, law enforcement has used facial recognition to pin identities to individuals who appeared in surveillance footage from the Capitol on January 6, 2021, as well as to robberies and street crimes.⁴⁰ Although facial recognition algorithms are less accurate for female and non-white faces,⁴¹ industry members claim this is not the case for top-performing algorithms in active use.⁴²

3. Automated CSAM Detection

Last year, Apple unveiled a program that would automatically scan iPhoto images and cross-check them against a library of known child pornography when the images were uploaded to the iCloud. Apple had planned to use a hashing technique to check all files sent from Apple devices to be stored on iCloud servers. Essentially, every image received by an Apple phone is converted to a code that corresponds to the visual image.⁴³ When a person’s iPhoto images produce ten matches, Apple employees would automatically be alerted and would share the information with authorities. Thus, while every image would be hashed and cross-checked against child pornography, only the images that matched could lead to a disclosure to law enforcement. Apple has since abandoned its plans in response to criticism,⁴⁴ but the technological capability still exists.

4. Geofences and Other Reverse Searches

In 2019, a spate of arsons involving vehicles parked in commercial lots was committed in short succession.⁴⁵ Based on the locations, surveillance footage, and similar modi operandi, police had reason to believe that a single set of co-conspirators was involved in all six arsons. When federal investigators requested that the court issue a warrant requiring Google to search its time-logged geolocation records for cellphones that were at or near the scenes of the arsons during the times that they were committed, a U.S. magistrate judge complied.⁴⁶ This type of process—where police start with the location, approximate time, and other details of a crime and ask service-providers to find a matching account—is known as a “geofence warrant,” and magistrate judges have issued orders authorizing their use under certain conditions. Judges have refused to issue warrants (without deciding whether warrants are actually necessary) when the request cast too wide a net—that is, if too many devices are likely to be identified as matching the search criteria.⁴⁷ For example, if police are investigating a crime that took place during a Beyoncé concert, even a geofence with a small radius, during a fairly precise window of time, will draw in too many false matches—too many phones of innocent bystanders. But this concern falls away if police can use multiple details or the intersection of several geofences in order to create a search criteria that will be unique to the perpetrator.⁴⁸ For example, in one recent case, a perpetrator who was suspected to have cased the location of a murder on the day before he committed it was identified using overlapping geofences from the day before and the day of the murder.⁴⁹ License plate readers, drone footage, Internet of Things data, and satellite surveillance imaging could also be sources of geolocation information in the likely circumstance that criminals begin to leave their devices at home.⁵⁰

Geolocation data can be combined with other types of information, too, to form a signature of crime that is more likely to be unique. As an illustration, US intelligence agencies located Osama bin Laden in part by looking for locations where they would expect to find Internet and cell service but in fact found none.⁵¹ There are data sources outside of location data that can create a signature for reverse searching. For example, while investigating an arson case, the Denver police department sought and received a “keyword warrant”—a court order requiring Google to reveal the account information of users who had recently searched for the address of the arson during a fifteen-day period leading up to the crime.⁵² Cyberstalking, child pornography, and many other online crimes have used forms of reverse searches in order to identify the accounts associated with IP addresses that were used to engage in those crimes.⁵³

5. Scanners, Sensors, Cameras, and Microphones

Red light cameras were one of the first ventures into automated policing and were also much despised.⁵⁴ These systems used sensors to detect if a car entered an intersection after the light had turned red, took a photograph of the car, and later used the image of the car (and its license plate) to track down the owner and mail a ticket. These systems are not dragnets per se (they do not make use of pre-existing collections of data), but they set the stage for Automatic License Plate Readers that do capture an abundant amount of data in case some particular parts of it are useful later, as when police are searching for a stolen vehicle.⁵⁵

Patterns that are highly suggestive of crime can also be automatically detected using recording devices with cameras, microphones, or sensors that operate in “always on” mode.⁵⁶ One example in use today is ShotSpotter microphones that are constantly “listening” in a public setting but alert the police and save data long term only when the noises captured by the shot-spotter match the sounds of gunshots.⁵⁷ In theory, Alexa, which also constantly records to respond to watchwords like “Hey Alexa,”⁵⁸ could be designed to detect sounds that are particular to domestic violence or home invasion and automatically alert the authorities.

Other sensitive devices like terahertz scanners can detect when naturally occurring radiation is blocked by metal objects. When the blocking metal objects are gun shaped, the scanners can be programmed to alert.⁵⁹ But this is nothing compared to what quantum magnetometry will be able to do in the near future.⁶⁰ Quantum sensing is so sensitive to minute differences in magnetic fields that the sensors will be able to detect trace amounts of chemicals, even when they are concealed behind walls. So, Justice Brennan’s nightmare scenario is here: we will soon have contraband detection devices.

This survey of suspicionless searches and backwards investigations demonstrates that there is increasing viability and interest in using these types of techniques. The practices currently in use do not usually meet the two formal requirements for “filtered dragnets,” but it is useful to assume they eventually will. By assuming investigations will eventually meet the demanding definition of filtered dragnets, we will be able to state with more rigor precisely why it is we are nervous about these law enforcement technologies, and what the policy or constitutional response should be.

II. THE ADVANTAGES OF FILTERED DRAGNETS

This Article will eventually explain why filtered dragnets impose serious risks on society that are not adequately (or even nominally) addressed in Fourth Amendment theory. But first, we will explore reasons to embrace, rather than resist, the integration of filtered dragnets into policing.

Filtered dragnets offer several advantages over the investigation practices in common use.⁶¹ These include decreased exposure of innocent details, increased accuracy and efficacy of criminal investigations, increased detection and deterrence of crime, decreased discretion for suspect selection, and decreased risk to witnesses and victims. In combination, these advantages contribute such compelling benefits to society that courts and attorneys should feel a moral obligation to harness their powers as much as possible.

A. Decreased Exposure of Innocent and Irrelevant Details

Filtered dragnets protect the privacy of innocent individuals, as well as the innocent-and-irrelevant details of a suspect. They protect innocent individuals whose data is scanned in the process by allowing police and courts to set a high standard for false match error. That is, filtered dragnets can be programmed to alert and reveal personal information only when the statistical probability that the person has engaged in crime is greater than 50%, or 80%, or 99%. This would ensure that the number of innocent individuals who are initially approached and investigated will be only a fraction of the number of criminals who are found.⁶²

Moreover, filtered dragnets limit the type of information that is revealed even about the proper subjects of investigation who have committed a crime. This is a game-changer. If police could have searched a house or a car in a manner that blinded them to everything except contraband or criminal evidence, the text and interpretation of the Constitution would probably differ from what we have today. The closest analogy we have to filtered dragnets, as I have mentioned before, are drug-sniffing dogs. Police dogs are allowed to sniff and alert based on the (mostly defensible) assumption that they will be trained well enough to have a low error rate.⁶³ The dog sniff and subsequent alert are, controversially, treated as a non-search in Fourth Amendment law unless the dog has trespassed into the home or curtilage of a resident.⁶⁴ But once the dog alerts, the police have probable cause to perform an entire human-conducted unfiltered search of a person’s vehicle, home, or effects, thereby revealing intimate and innocent details while they look for contraband. Filtered surveillance is more privacy-protective than drug-sniffing dogs because it can restrict the sort of data that is revealed even as police are verifying that the alert is accurate.

I do not mean to suggest that filtered dragnets avoid all revelations about innocent people or activities. Relevant data disclosed to police as a result of a high probability match will frequently, maybe even usually, reveal information that is not directly tied to wrongdoing. For example, if in the future the police used a system that combines familial DNA matching with other records to identify a sexual assault offender, police may see and use the identity of the family member in order to confirm that the identification is sound and to show how the case was solved to a jury. This could reveal the identity of estranged parents or children of the suspect or could uncover paternity that was not previously known.⁶⁵ But this is a consequence of the fact that all successful investigations impose some irreducible privacy costs on the innocent. Even using traditional strategies, police will occasionally and appropriately question a spouse in a manner that reveals the suspect is having an affair or may make other similar sensitive revelations. If the revelations are in service of pursuing a probable cause–backed investigation, these will be innocent-but-relevant details.⁶⁶ The advantage I describe here pertains to the shielding of innocent-and-irrelevant information.

B. Increased Accuracy

By definition, filtered dragnets identify suspects and reveal information only when there is a high probability of crime. This is a form of increased accuracy—a reduction in false positive error. (In the next subsection, I will discuss the other form of increased accuracy—the reduction in false negative error—which would allow filtered dragnets, if deployed consistently, to solve more crimes and increase clearance rates.)

If filtered dragnets are held to higher probability standards than standard investigation techniques, they will cause proportionally fewer false starts and erroneous arrests and searches along the way.⁶⁷ In time, a shift toward filtered dragnets should decrease the dangers and anxiety that come from false suspicion and conviction at every stage of criminal investigation. Indeed, facial recognition systems that identify a suspect based on photographs or surveillance footage from a crime already outperform the accuracy rates of average eyewitnesses and PC-based warranted searches by a large margin.⁶⁸

Skeptics will have at least two critiques of my optimistic prediction: all systems have some error, and the sort of error that comes from a highly technical and data-driven system might be particularly worrisome since a falsely accused defendant will have to go up against a trusted and more accurate system.⁶⁹

It is true that no investigation tool is free from error, and it is also possible that police, prosecutors, and juries could be at risk of reflexively trusting the results of a filtered dragnet system because they are so reliable. But the premise of the critique might be plain wrong. When a filtered dragnet produces a spurious result, the error could very well be easier to catch than when an informant or witness makes a spurious identification. For example, when a man named Michael Usry was the target of an investigation based on his father’s partial genetic match to crime scene DNA, Usry was cleared as soon as his own DNA sample was collected and analyzed because it did not match the sample collected at the scene of the crime.⁷⁰ This should generalize: the more independent sources of data there are, the more protection there should be for innocent.⁷¹ A person wrongly identified by facial recognition is more likely to have a credible digital alibi (e.g., geolocation data that puts them in an entirely different state at the time of a crime) than a wrongly identified person who was accused by a confidential informant.

The facts of United States v. Chatrie⁷² illustrate the propensity for the erroneous targets of filtered dragnets to be cleared earlier and easier than erroneous targets in traditional investigations. In that case, police used a geofence warrant to access the deidentified location data of individuals who were near the scene of a bank robbery during the hour that the crime took place.⁷³ The geofence produced the deidentified location records of nineteen individuals, only one of whom was the perpetrator.⁷⁴ These facts do not fit the requirements of a filtered dragnet because law enforcement accessed and manually examined information related to the eighteen individuals who were not the perpetrator, but we can think of these eighteen as stand-ins for those who are wrongly targeted by filtered dragnet. One hour of anonymous geolocation data conclusively ruled out sixteen of them, and an additional hour ruled out the other two. None of the eighteen were identified (by name or other direct identifier) to the police, and none were questioned.⁷⁵ By contrast, consider the experiences of two individuals who were briefly implicated in the investigation before the FBI used geofence technologies. Using traditional policing methods, the FBI first investigated the ex-boyfriend of a woman who saw news reports about the bank robbery and called the police to offer a false tip. They also investigated somebody who owned the same kind of car that was used as the getaway vehicle when a bank employee reported the possible tip, but that, too, was a dead end.⁷⁶ It is not clear from the opinion what sorts of encounters and information-gathering the police used to rule out these two, but I suspect the anxiety and privacy burden absorbed by them was greater, by almost any measure, than the burden to the eighteen individuals whose approximate movements in public during one to two hours were disclosed in deidentified form. If this case is representative, the geofence warrant process should be a method of first resort, rather than last resort, because it is likely to lead more quickly to both the identification of the right suspect and the elimination of wrong ones.

A second skeptical critique is that I am describing the positive qualities of filtered dragnets under the assumption that the systems will be deployed as intended and will not be manipulated or tampered with. This is a legitimate concern to which the long history of flaws in forensic labs can attest.⁷⁷ But as a comparative matter, data-driven techniques of this sort might be more accountable and auditable than old-school forms of criminal investigation. When the same level of scrutiny and doubt is applied to traditional investigations that would have to continue in the absence of new technologies—the risks of error and manipulation present in eyewitness testimonies, suspect interrogation, or warrant affidavits⁷⁸—the prediction that filtered dragnets will be more corrupt and error-prone is hard to believe.⁷⁹

C. Increased Detection and Deterrence

The accuracy and efficiency of filtered dragnets can help tackle longstanding social problems of chronically unsolved crime, assuming filtered dragnets are used regularly.⁸⁰ About twenty-five million Americans—8% of the population—suffer from a violent felony or a felony-level theft each year.⁸¹ These events are of course disproportionately likely to beset low-income households. While violent crime rates today are still down compared to the high-water marks in the 1980s and early 1990s,⁸² the statistics are still grim, particularly for communities of color. In the U.S., about five people in every 100,000 are murdered each year.⁸³ For African-Americans, the rate is above six per 100,000.⁸⁴ (By comparison, the rates in France and Italy are 1.28 and 0.52 per 100,000, respectively.)⁸⁵ In addition to the trauma and losses to crime victims, society also absorbs a range of economic costs and psychological distress in the course of guarding against crime.⁸⁶ It is all too easy for scholars, lawmakers, and others who live in safe neighborhoods to forget: serious crime is just awful.

Crime clearance rates (that is, the proportion of crimes actually reported to the police that have led to an arrest or otherwise been considered solved) for violent crime is 42%, and the rate is under 15% for property crimes.⁸⁷ Only about half of violent crimes and one-third of property crimes are ever reported to the police, and many arrests and convictions are erroneous. The low likelihood of reporting a crime, the low clearance rates, and the somewhat sizable chance of false arrest altogether mean that the probability a criminal will be prosecuted for any particular violent crime is probably under 20%.⁸⁸

Clearance rates in black neighborhoods are even worse. The events over the last decade validate Bill Stuntz’s observation that “poor black neighborhoods see too little of the kinds of policing and criminal punishment that do the most good, and too much of the kinds that do the most harm.”⁸⁹ Dampening crime in lower income black communities is a civil rights goal of longstanding stature.⁹⁰ Bennett Capers described underenforcement as the criminal justice problem that gets short shrift,⁹¹ and that was before George Floyd’s murder made police violence and over-policing problems an issue of pressing global salience. There is some squeamishness today in discussing crime in black neighborhoods (and certainly in referring to that crime as “black on black”), but it is foolish to expect criminal justice reform to be lasting and meaningful if it does not tackle both of the scourges of inner-city policing: harsh policing and civilian violence.

The most obvious and natural way to curb future violent crime is to increase the detection of very serious crimes today.⁹² Some scholars, Tom Tyler chief among them, have made the case that in the long run, law-abiding behavior has less to do with criminal law enforcement tactics than with cultural, economic, community, and norms-based factors.⁹³ Occasionally, this insight has been oversimplified and distorted to leave the impression that law enforcement detection rates have nothing to do with crime rates.⁹⁴ This is a mischaracterization of the evidence.⁹⁵ While there are multiple “root causes” of crime,⁹⁶ data and common sense confirm that holding other factors steady, criminal behavior is sensitive to the probability of law enforcement detection. The relevant criminology studies consistently find evidence that detection reduces the incidence of future crime.⁹⁷ There is also some evidence that the swiftness of enforcement—the “celerity”—makes a difference.⁹⁸

Increased detection of crime not only reduces crime rates, but also improves other measures of social mobility and security as well. Greater crime detection increases the likelihood that offenders will seek and find employment, enroll in education, and live in a stable family environment, and it reduces school absenteeism in the community.⁹⁹ Indeed, given how dramatic the impact of detection is on increasing pro-social behavior, it is not at all clear that law enforcement should even be distinguished from the so-called “root causes” of crime. Fear that crime will not be well controlled is a root of many of the root causes of crime.¹⁰⁰

So, an enduring and well-documented fact is that an increased likelihood of detection and enforcement drives crime rates down. This is much less true, and possibly not true at all, for the severity of punishment, where increasing the length of prison sentences is found to have no impact or even criminogenic effects.¹⁰¹ Thus, the state’s essential duty to protect its constituents from the violence and exploitation of others is well served by good detection. Unfortunately, crime rates are currently under the management of the American criminal justice system’s haphazard style of enforcement: occasional, error-prone, and harsh.¹⁰²

D. Decreased Discretion for Suspect Selection

Filtered dragnets are crime-driven rather than suspect-driven. In suspect-driven investigations, police have developed suspicion—or a hunch—around a particular individual and focus their observations in an attempt to develop a case.¹⁰³ Suspect-driven investigations are propelled by the theories of police officers and proceed within their discretionary control. Police also have some control over filtered dragnet investigations (e.g., over where and when to deploy them), but once they are put into service, police lose control over the results. If facial recognition or reverse searches identify a wealthy or politically connected individual as the suspect of a crime, it will be much more difficult for police and prosecutors to avoid pursuing investigation and prosecution, as compared to cases where police use informants or witnesses as the main source of identification.

In later Parts, this Article describes the ways in which police can still exercise too much discretion by, for instance, using a filtered dragnet tool preferentially to solve some crimes and not using it on others that are substantially similar. But we should not lose sight of the ways filtered dragnets do constrain discretion. One of the greatest risks from mass surveillance (that is, dragnets) is its potential to create a resource for selecting the suspect first and then finding a crime, or for using legal but sensitive information to discredit political enemies and personal foes.¹⁰⁴ Police cannot exert this type of control over filtered dragnets.¹⁰⁵

The Supreme Court caselaw that has found fault with Big Data policing has involved digital searches in which the police first selected their target and then accessed long histories of their target’s whereabouts without a warrant.¹⁰⁶ The Court is right to constrain investigations that permit police to access sensitive and detailed information without any justification or checking mechanism. Even when police have developed suspicion against a target, the low-tech factors that go into building up suspicion about a particular individual (e.g., testimony from an informant or presence in a “high crime neighborhood”) can impose an indirect racial tax on innocent minorities that could mostly be avoided with filtered surveillance programs that have very low error.¹⁰⁷

Not all agree with this assessment. Kiel Brennan-Marquez has argued that “nothing about the logic or practice of data-driven law enforcement makes [] redistributive impulses necessary. On the contrary, they will be hard fought—and particularly in our current political climate, unlikely.”¹⁰⁸ I share a certain degree of Brennan-Marquez’s cynicism (I have wondered, for example, if law enforcement’s sloth-like speed in adopting crime-driven investigation practices rather than suspect-based practices are related to the loss of control over defining the pool of suspects),¹⁰⁹ but he goes too far. There already is some evidence that data-driven policing has redistributed the costs of law enforcement and will continue to do so. DNA-based exonerations, for example, have proven the innocence of disproportionately more minority convicts than whites.¹¹⁰ This suggests that, going forward, DNA-based investigations will shift police focus not only toward the guilty, but also away from wrongfully accused Black and minority suspects.

E. Decreased Risk to Victims, Witnesses, and Suspects

Police investigations cause a range of problems that are not captured in the variables I have discussed so far—privacy intrusions, erroneous arrest, et cetera. When police have to rely on old school methods of case investigation, the system necessarily puts victims, witnesses, and suspects at risk of physical or economic harm.

Let us start with crime victims and witnesses. Cooperating with the government is a perilous activity for these individuals, as captured by the saying “snitches get stitches.”¹¹¹ By one theory, clearance rates for serious crimes are low in the U.S. because proving homicide or robbery cases requires victims and witnesses to testify and put themselves at risk.¹¹² Bill Stuntz hypothesized that police forces increased their focus on drug and gun possession charges because these crimes were “self-proving” once contraband was discovered, and therefore did not necessitate the cooperation of a victim or witness.¹¹³ As a result, more serious crimes were harder to clear than low-level crimes. But, of course, those are the crimes that are more damaging to the community. If reverse searches, facial recognition, and other filtered dragnets could allow police to prove cases independently, without exposing victims and witnesses to the risk of social stigma and retaliation, they would contribute benefits to society that are not accounted for in the usual privacy-versus-security debates.

As for the suspects, the manner in which traditional policing builds up cases leave much to be desired. Police stops and searches are often vectors for bias and disrespect where swearing, insults, unwarranted accusations and suspicion, and unjustified physical contact lead to demoralization and distrust.¹¹⁴ Traditional investigations are costly in terms of time, fear, property damage, and general unpleasantness. A person who is pulled over for a secondary inspection when a police dog alerts to her car may very well have no recourse when the police slash open the seats of her car to try to find drugs. Home searches and interrogations cause additional physical, emotional, and economic strain to suspects, irrespective of what sorts of private information is revealed. These costs will become more obvious and more salient when technology obviates the need for a government agent to tear open the upholstery of a suspect’s car, dishevel a dresser, and “grope[] and grab[] our children” at the airport.¹¹⁵

***

In combination, these factors show that filtered dragnets should be part of any responsible law enforcement program. They extend the “pareto frontier” by allowing privacy and crime detection to increase at the same time.¹¹⁶ It would be counterproductive for law to prohibit their use based on a formalistic or expansive notion of Fourth Amendment protection. And yet, as the next Part shows, there is some risk that courts and lawmakers may do just that.

III. FILTERED DRAGNETS AND PRIVACY

Most of the courts, scholars, and civil society organizations that have considered the societal impact of filtered dragnets such as geofencing and reverse keyword searches have concluded that they pose serious threats to privacy.¹¹⁷ Putting aside for a moment whether filtered dragnets are consistent with the full set of Fourth Amendment principles, this Part argues that filtered dragnets pose almost no threat to Fourth Amendment privacy. What I mean is, among all of the meanings and purposes that the right to privacy is meant to capture, the only ones that are meaningfully violated by filtered dragnets are related to abuses of power. The privacy expectations of the non-offender, which are the ones that predominate Fourth Amendment analysis, suffer at most a technical violation. If we separate out the anti-authoritarian goals of privacy, nothing is left of the privacy critique of filtered dragnets.

This does not mean that filtered dragnets are harmless—to the contrary, as Part V will argue, they pose significant dangers to civil liberties. But by ruling out privacy as the vector of abuse, courts can harvest the benefits of analytical precision and adjust Fourth Amendment law to better match the problems. This Part describes how courts and scholars have responded to filtered dragnets so far and then explains why Fourth Amendment principles are so poorly suited to address the negative reactions.

A. Judicial Reactions to Filtered Dragnets

Courts are not prepared for the challenges that filtered surveillance pose to Fourth Amendment jurisprudence. Indeed, they are struggling as it is to find principled limits in more common and straightforward digital dragnet cases.¹¹⁸

So far, lower court opinions are surprisingly unfriendly to technologies and practices that will be the predicates to filtered dragnets. For example, Baltimore tried to set up a program called Aerial Investigation Research (“AIR”) in which its police department collected and retained 45 days’ worth of aerial surveillance footage, but would not be allowed to access the footage unless a violent crime occurred and was likely to be caught on camera.¹¹⁹ Civil liberties organizations successfully challenged the program, arguing that the Fourth Amendment should constrain the government from amassing data that can be used for longitudinal location tracking no matter how constrained the Baltimore Police Department’s access and use of the data might be.¹²⁰ The Fourth Circuit used the theoretical possibility of government access to information as a sufficient reason to find that a Fourth Amendment search on all Baltimore residents took place, regardless of the design, practice, and risk of abuse for the program.¹²¹ If this reasoning is adopted throughout the judiciary, law enforcement will not be able to collect their own information for filtered dragnets and will have to rely on data that is collected and held by private industry.

Many courts have expressed similar reservations when the government asks a private company like Google to trawl through its data to conduct reverse searches, too.¹²² But these opinions suggest that a warrant process that is sufficiently narrow and “particularized” so as to avoid disclosing data of innocent bystanders to the police would satisfy Fourth Amendment requirements.¹²³ This leaves an opening for filtered surveillance. It suggests that the automated scan that Google or another third party would perform of all its data in the process of identifying responsive records would not be a search in and of itself. In other words, the focus of the courts that have analyzed geofence warrants is not on the data that is scanned at all, but on the data that is ultimately revealed to police.

Courts might begin to clamp down on third-party scanning for law enforcement purposes following the logic of the Fourth Circuit’s decision in the Baltimore AIR case. Many scholars are advocating for this, as I describe next. But it is still not clear that filtered dragnets will be understood to be a search at all given that they are designed to alert only when probable cause of a crime has been established. Even if police use computing technologies to automatically scan through large amounts of personal data, the constitutionally relevant event is the revelation and use of information to the government agents who are making decisions.¹²⁴

This is best captured by the binary search doctrine—the rule establishing that, for example, a drug dog’s alert is not a search under the Fourth Amendment because it reveals only the presence of contraband and criminal wrong-doing. There is little reason to believe the Supreme Court will backpedal. The Court has found that a universal fingerprinting database, possibly even one that requires involuntary contributions of fingerprints by individuals who are not yet in the database, could be justified, given that fingerprinting is an “inherently more reliable and effective crime-solving tool than eyewitness identification or confessions.”¹²⁵ More recently, in Maryland v. King, the Supreme Court found that police can forcibly swab an arrestee and cross-check his DNA against the database of DNA samples from unsolved crimes.¹²⁶ The opinion focused almost entirely on the physical act of swabbing and took for granted that the cross-checking of a DNA sample to a crime database will not be a search because it reveals either nothing at all or reveals only a high-confidence match to a crime.¹²⁷

That said, some of the Supreme Court decisions in the last ten years written by Justice Scalia incorporated a strong property-based formalism. In United States v. Jones, the use of a GPS device was a search not because of the sensitivity of the information gathered, but because of the touching of the suspect’s car.¹²⁸ And in Florida v. Jardines, use of a drug-sniffing dog on a front porch was a violation of the Fourth Amendment because the practice involved a trespass with information gathering.¹²⁹ The fact that the information gathering was in the form of a binary search did not alleviate the flaw, according to the majority.¹³⁰ If Scalia’s formalism for real and tangible property is extended to personal data, filtered dragnets could be considered a search of all individuals whose data is mechanically scanned in the process, irrespective of how trivial the invasion to them may be.

Even if courts come to agree that mechanically processing data is a Fourth Amendment search, this would still not guarantee the death of the filtered dragnet. They might be reasonable searches under the special needs or checkpoints doctrines.¹³¹ In the context of checkpoints, bulk searches, and other dragnets, the Supreme Court has articulated the factors that it would use to determine whether the searches are “reasonable” despite a lack of individualized suspicion. These factors include the intrusiveness of the search, the public and government interest that is served by the dragnet, and the degree of oversight or limitations on discretion that are involved.¹³²

Thus, judicial reasoning seems to be on a collision course between (a) cases that are eager to expand the recognition of privacy rights to cover all data subjects in large databases whose information is theoretically accessible to police and (b) cases that find highly probative “binary searches” are outside the ambit of Fourth Amendment prohibition.

B. Scholarly Reactions to Filtered Dragnets

Lawrence Lessig saw this train wreck coming. In Code, he pointed out that the Internet and digital information technologies will allow police to identify a perpetrator with high confidence while remaining blind, by design, to the intimate details of the innocent. He explained that this will cause the privacy rationale for Fourth Amendment protection to lose relevance, at least when filtered dragnet investigations are possible. He expected these technologies would force a wedge between privacy and anti-authoritarian justifications for criminal procedure, when in the past, the two types of arguments traveled together.

Fourth Amendment scholars have doubled down on privacy.¹³³ They have lumped filtered dragnets together with all other digital surveillance in order to hinder police access. Dragnets of every sort, including the filtered sort, still suffer from analytical chaos because of value judgments and predictions that too often stay latent in the scholarship.¹³⁴ As a result, scholars are all over the map in terms of the proper treatment of digital dragnets, and none have focused on the right factors.

A few examples. Daphna Renan has argued that the collection, retention, and theoretical capability for law enforcement to access data is alone sufficient to constitute a privacy harm. Consent or a warrant should be required before the government collects any privately held data, and even before they access or request machine scanning of that data by third parties, irrespective of how limited and careful the readout is.¹³⁵ Natalie Ram has approvingly held up Maryland’s law prohibiting law enforcement from using genomic databases to solve crimes unless they have received consent from all individuals whose data is in the genomic dataset.¹³⁶ More generally, this brand of scholars use access to data, rather than how it is used, as the sine qua non for Fourth Amendment analysis and ask why anybody should be under “lifetime surveillance.”¹³⁷

Scott Sundby and Nadine Strossen take the more moderate position that dragnets (of any sort) should be used only as a last resort,¹³⁸ though it is not clear they would apply their conclusions to filtered dragnets in particular. Eldar Haber, in considering how the Internet of Things can become a rich source of police investigatory data for reverse searches, advocates for a warrant requirement that goes beyond the “super-warrant” requirements of the current Wiretap Act to create an “ultra-warrant” requirement.¹³⁹ Since the super warrant requires police to exhaust all other means of investigating before securing a wiretap warrant, the effect and objective of Haber’s recommendation is similar to Sundby’s and Strossen’s—to ensure that the criminal justice system strongly disfavors use of Internet of Things data in investigation.¹⁴⁰

Continuing down the spectrum, some scholars appreciate the potential benefits of filtered dragnets and have advocated for a style of restraint that differs from prohibition or PC-based warrant requirements. Stephen Henderson and Kiel Brennan-Marquez argue that police departments should have a budget for searches and seizures (including digital investigations that, at least right now, operate outside the formal definition of a Fourth Amendment search) so that they are incentivized to use the most efficacious practices rather than the most expedient ones.¹⁴¹ Christopher Slobogin has explicitly called for a more nuanced understanding of dragnets and suspicionless surveillance. He would allow dragnets that meet a standard of “generalized reasonable suspicion” where their efficacy outweigh the privacy intrusion enough to merit their use in criminal investigations.¹⁴² Jeffrey Bellin recommends locating the Fourth Amendment interest in databases with the owner or holder of data, rather than the subject of the data searches, which would give a company the right to either consent to a search or to demand a warrant.¹⁴³ Andrew Ferguson would allow the use of dragnets as long as the legislative branch explicitly authorizes their use.¹⁴⁴

Reaching the other end of the spectrum, some scholars (myself included), see the use of filtered dragnets as a move toward justice rather than away from it.¹⁴⁵ The prohibition of a highly reliable investigation tool is unethical when the prohibition would push police toward more invasive and less accurate investigation techniques and when serious crime would too often go undeterred. David Kaye and Michael Smith have made this argument with respect to DNA matching.¹⁴⁶

Where does this leave us? Hopefully with an open mind and a hunger for reasoning from first principles.

C. The Pointlessness of Fourth Amendment Privacy

Filtered dragnets will disrupt the equilibrium between the government, criminals, victims, and bystanders. That is obvious enough. Orin Kerr has made the descriptive and normative claim that courts intuitively adjust Fourth Amendment rules to strike a new balance between privacy and security whenever the government gains a significant new surveillance capability.¹⁴⁷ Filtered dragnets implicate only a few Fourth Amendment interests, and those few are not well served by the reasonable expectations of privacy test, by the warrant requirement, or even by intuitive adjustments. We are in new terrain in which a technology increases both privacy and crime control.

1. Theoretical Dimensions of Fourth Amendment Privacy

Borrowing from a rich literature that catalogues and elucidates the concept of privacy,¹⁴⁸ the following arise most frequently in the context of government intrusions and surveillance:

i. Freedom from Embarrassing Revelations, Social Dislocation, and Harassment

Perhaps the most common and robust form of privacy is the recognition that everybody has some legitimate, pro-social reason to want to keep licit details about their lives away from at least a subset of people.¹⁴⁹ They want the freedom that comes from relative obscurity,¹⁵⁰ where their decisions and behavior are not under the scrutiny and judgment of others.¹⁵¹ Everybody deserves to be shielded, at least to some degree, from embarrassment over the things they have said or done that did not cause any lasting harm to others and that can be misunderstood.¹⁵²

The scope of this interest ranges from trivial embarrassments (the regrettable hairstyle, the piece of toilet paper stuck to a shoe) to the truly life-changing (the ostracism of an HIV diagnosis, the physical attack carried out with the help of location information).¹⁵³ Much of the time, the sensitivity of a piece of information will depend greatly on context,¹⁵⁴ but the point is that “everyone has facts about themselves that they don’t want shared, disclosed, or broadcast indiscriminately.”¹⁵⁵ When information is permitted to leap from one context to another and to be used in unexpected ways, it will cause harm.¹⁵⁶

Filtered dragnets relieve, rather than exacerbate, these concerns. By shielding data from police (and everyone else) unless and until they match the fingerprint of a crime, filtered dragnets keep as much information private as practically possible.¹⁵⁷ Indeed, if more police investigations were conducted through filtered dragnets, members of the community would be much more obscure and unknown vis-à-vis the state as compared with programs that involve heavy use of interviews, street patrols, traffic stops, and home searches.

ii. Freedom from Manipulation

An actor can exploit access to another person’s data by discovering their vulnerabilities or gaps in rationality and then using those to persuade, cajole, or threaten the data subject into doing something.¹⁵⁸ Again, as with freedom from embarrassment, filtered dragnets present a lower, rather than higher, risk of this sort because law enforcement and other government actors are blinded from nonrelevant information. The only use to which the dragnet data are put involves solving a crime.

iii. Freedom from Indignity

The privacy literature prizes at least two forms of dignity that are not captured in other concepts on this list. First, privacy intrusions sometimes bring about an indignity from being singled out for suspicion.¹⁵⁹ Dragnets, whatever their faults, do not have this intrusion. Nearly everybody suffers the same indignity when bulk data is scanned, just as they do at TSA checkpoints and DUI roadblocks.¹⁶⁰ Another form of dignity concerns being treated as a human rather than being processed as a faceless line of data. This has some overlap with the concept of “individualized suspicion,” which I will discuss below, and which (in my opinion) filtered dragnets more than adequately should meet. Nonetheless, it is undeniable that filtered dragnets are entirely mechanical up until the point when a limited set of information is disclosed to police. Whether this should make a difference in the moral and legal status of filtered dragnets, though, is debatable.¹⁶¹

iv. Freedom from Anxiety

A common theme throughout the discourse revolves around the idea of loss of control and the uncertainty and anxiety that arises from it.¹⁶² When the government has personal information about a subject, the subject is uncertain how the information could be used and fears that it may be used against them. This fear is, in and of itself, a social cost. Kiel Brennan-Marquez has argued that new data-gathering technologies create, and to some extent have already created, an omnipresent low-level form of anxiety similar to the feeling one gets when seeing a patrol car in the rear-view mirror and “feeling your pulse quicken; awareness heightened and senses alert, as you try not to break any traffic rules.”¹⁶³

A natural follow-up question is: What havoc can the government cause with data?¹⁶⁴ The greatest risk posed by filtered dragnets is to offenders, and it is the risk that their offense (and nothing more) will be detected. Thus, for filtered dragnets, freedom from anxiety calls for a freedom from law enforcement itself. It vindicates the rights of the supposedly “guilty” rather than the innocent. Fourth Amendment privacy recognizes no such interest.

2. Routine Compliance with Reasonable Expectations of Privacy

Data-driven policing has inspired a series of gloomy articles that predict the Fourth Amendment’s reasonable expectations of privacy test has become irrelevant.¹⁶⁵ As long as the third-party doctrine stands, permitting police to access data held by third-party companies without justification or oversight, privacy will be insufficiently protected. I agree with these scholars.¹⁶⁶ But courts are already addressing this problem. Cases like Carpenter v. United States—in which the Supreme Court found that police access to several days’ worth of geolocation data constitutes a search that would require a warrant or appropriate warrant exception—have proven that for suspect-driven searches, Fourth Amendment privacy is not yet irrelevant and is becoming more powerful by the day.¹⁶⁷

Nevertheless, the reasonable expectations of privacy test is very unlikely to impede the adoption of filtered dragnets. That test has repeatedly been interpreted to deny privacy interests of the guilty. “[A]ny interest in possessing contraband cannot be deemed ‘legitimate,’ and thus government conduct that only reveals the possession of contraband ‘compromises no legitimate privacy interest.’ ”¹⁶⁸ Jed Rubenfeld’s synthesis of Fourth Amendment caselaw seems to get it right: the Fourth Amendment aspires to support “a justified belief that if we do not break the law, our personal lives will remain our own.”¹⁶⁹ Filtered dragnets pass this test.¹⁷⁰

To be clear, there are reasons, independent of privacy, to protect law-violators-as-violators. These arguments, which I describe in depth in the next Part, are critical for understanding the threat from filtered dragnets. But they are only loosely related to “privacy” as the term is typically used, and they will not be incorporated into the reasonable expectations of privacy unless that test is changed beyond all recognition.

3. The Irrelevance of the Warrant Requirement

In U.S. v. Chatrie, the geofence case described earlier, the court suggested it would approve a geofence warrant process if a magistrate or court got to make a probable cause determination before the geolocation data of a target were de-anonymized.¹⁷¹ Generalizing to other filtered dragnets, law enforcement would seek a warrant after the filtered dragnet system alerts, but before any identifying data is revealed.

This process might be a good component for accountability and oversight, and to ensure that filtered dragnets are performing at or above the expected “hit rate,” but it is hard to imagine why a warrant could ever be denied. A warrant is valid as long as it is issued by a neutral judge or magistrate, is based on probable cause, and states with sufficient particularity what is to be searched or seized.¹⁷² The standards for both probable cause and particularization will be met—more than met—given that the definition of filtered dragnets I am using requires them to withhold information until the probability that the target has engaged in the investigated crime meets a high standard. As for particularization, because the filtered dragnet procedure begins with the signatures of a crime and works backwards to find the perpetrator, the profile for matching (what I have been calling the “fingerprint” of the crime) is as particularized to a crime as it can be.¹⁷³

Privacy advocacy groups have argued that warrants issued for reverse searches are tantamount to general warrants because they do not identify (or even anticipate) a particular suspect before they are issued.¹⁷⁴ But the only similarity that geofence warrants have to general warrants from the Colonial Era is the lack of a named suspect. In every other way, geofence warrants restrict the information that is revealed to that which is closely linked to a particular crime. By comparison, general warrants authorized agents of the colonial government to look for stolen or untaxed goods anywhere the agent “[should] think convenient to search.”¹⁷⁵ The only manner in which the geofence warrant is unconstrained—by allowing police to discover who the suspect is rather than requiring police to come with a suspect in mind—is a feature of geofence warrants that should be praised, as it limits the discretion of the police to select their targets in advance. This is the critical distinction between filtered dragnets like geofence warrants or DNA searches and suspect-driven searches—one that scholars and commentators too frequently gloss over.¹⁷⁶

Thus, a warrant requirement is irrelevant to the adoption of filtered dragnets, apart from the time, resources, and general system friction involved, because they should routinely be granted.

***

Privacy scholars are courting disaster by lumping filtered dragnet techniques in with other types of dragnets and digital searches. Even if there are court victories in the short term, they will be pyrrhic. The very concept of “privacy” will become increasingly vulnerable to the “I have nothing to hide” argument that is loathed by the field (and rightly so).¹⁷⁷ Courts might fail to sufficiently constrain unfiltered dragnets and suspect-driven investigations because of the utility and low harm of filtered dragnet techniques that happen to share the same Fourth Amendment bucket.

Arguments against mass surveillance often start with the observation that surveillance fundamentally shifts power from the surveilled to the surveillor.¹⁷⁸ This is true as far as it goes, but if the surveillor is constrained and can only see evidence of a crime, that power shift will often be a desirable one. In fact, assuming that the law is legitimate, the enforcement of a law is one of the most legitimate acts the government can do. The burden is therefore on surveillance scholars to explain why those who have violated the law may have justified interests in being protected from state detention and prosecution, even when their law-abiding conduct remains private. There are answers to this challenge, but they sound in tyranny rather than invasions of privacy. There is a virtue to being precise about the problems of filtered dragnets without reliance on capacious notions of privacy that would implicate nearly every law enforcement function.

IV. FILTERED DRAGNETS AND TYRANNY

Filtered dragnets will provide a highly concentrated dose of criminal detection. Even though, in theory, the whole point of having law enforcement departments is to detect and prosecute crime, a drastic increase in criminal detection can have toxic effects on society. The dynamics and interaction of other criminal justice factors have come of age in a time of low detection and only make sense if detection continues to be difficult.

This Part begins by revisiting the interests that privacy scholars have identified that would be affected by filtered dragnets. Each of them is really an anti-tyranny concern garbed in the language of privacy. If we are more explicit about the goals and analyze the risks of authoritarianism that filtered dragnets may drag along with them, the problems (and, therefore, the remedies) become much more obvious.

The true threats from filtered dragnets are that: (1) many Americans will confront a real risk of criminal liability based on our overbroad criminal codes; (2) prosecutions of those crimes could lead to life-altering detentions in our inhumane prison systems; and (3) without the shield of abysmally low detection rates, the only protection is lenity, which is no protection at all from a government that attempts to exert authoritarian power.

A. Privacy as a Stalking Horse for Anti-Authoritarianism

Neil Richards claims that privacy is a necessary bulwark “if we want political freedom against the power of the state.”¹⁷⁹ But privacy is inadequate on its own to protect the broad range of liberty and equality interests that arise with abuse of power. Filtered dragnets prove it. They can be used to trample liberties and to serve the public unequally even though the government will not know any irrelevant details about licit activities.

Instead of trying to expand the meaning of “privacy” to tackle every possible state abuse, courts and criminal justice scholars alike should seize the moment and force constitutional theory to shift its focus from privacy to anti-authoritarian constraint. To be sure, courts should continue to refine the conception of Fourth Amendment privacy interests to address unfiltered digital dragnets. But if we have any hope of harnessing the great potential of filtered dragnets without creating a despot’s playground, the Supreme Court will need to simultaneously cultivate an anti-authoritarian strand of Fourth Amendment rules.

When surveillance scholars use the concept of privacy to curb abuses of power, they are concerned about unnecessary social control and abuses of discretion.¹⁸⁰

1. Unnecessary Social Control

Law enforcement serves the obvious and highly valued function of social control. As Kiel Brennan-Marquez explains, “we want people to worry about breaking the rules”¹⁸¹—at least, when the rules are good rules, and when the consequences for breaking rules are proportional and fair. However, Brennan-Marquez is concerned that data-driven policing tools will leave the police “awash in probable cause,” allowing them to stop, search, or arrest nearly anybody.¹⁸² This concern gets to the heart of the matter. But it is ultimately a critique of the substance of criminal law and the discretion of criminal justice decisionmakers. These are the same themes that Bill Stuntz repeatedly raised when he critiqued Fourth Amendment cases and scholars for allowing privacy to be a distraction from more pressing threats.¹⁸³

Let us return for a minute to Brennan-Marquez’s metaphorical driver who has just discovered a patrol car in the rearview mirror. If the government had done a massive purge of its penal codes and the only crimes left on the books were murder, rape, arson, armed robbery, and aggravated assault, and if false positive police error was vanishingly small, would the driver feel anxiety? For a time after the change, yes of course. There will be a short-term period of distrust and adjustment when technologies or rules change suddenly and dramatically.¹⁸⁴ But in the long run, anxiety will ebb under the pressure of persistent feedback of non-events and the absence of harm.

Public opinion surveys find that attitudes about privacy are mediated through attitudes about the substantive criminal law that is being enforced: a dog that is sniffing for bombs is perceived as less privacy-invasive than a dog that sniffs for drugs even though the experience is identical for the investigation target (at least, up until the moment that the dog alerts, that is).¹⁸⁵ If assessments of privacy change not because of the revelations or techniques that are used but because of the crimes that are prosecuted, the concept of privacy is standing in for objections to the substance of the law.

The concern about unnecessary social control is better addressed by defining, as best we can, which types of antisocial conduct rise to the level of being worthy of criminal punishment and which do not. And the concern raises important questions about whether criminal violators are treated too harshly. Privacy is a blunt instrument for these purposes. It draws lines that have only a vague relationship to the distinctions we mean to draw.

2. Selective Attention

Another serious concern is that police might make use of a system of surveillance to rifle around for something to use against a specific person or group.¹⁸⁶ Motivations could range from political persecution to racism to personal vengeance to simply wanting to make a quota or appear well in performance metrics within a bureaucratized police department.

As with unjustified social control, the problem of discretion and selective attention is only indirectly related to privacy. Indeed, it is not even clear that privacy has any positive influence on police discretion. Privacy steers police toward information sources that disproportionately expose low-income and minority groups: if police cannot bring a drug-sniffing dog to a house, they will bring it to apartments and cars.¹⁸⁷ If police cannot search the full set of government and commercial DNA databases for a match to a crime scene sample, they will just use the government’s database of arrestee DNA data.¹⁸⁸ At the same time, police can also engage in selective inattention by avoiding leads that could cause problems for friends or powerful people and by failing to give crimes perpetrated against low-status victims the same attention as the ones inflicted on high-status victims. When communities are under-protected, it is a form of too much privacy vis-à-vis the government.

The policy antidote to government discretion and bias is to directly limit discretion and bias. Filtered dragnets already do this, to some extent, because once they are employed, police lose control over who will ultimately be identified as a suspect. But law enforcement can still deploy filtered dragnets unfairly when selecting the neighborhoods or cases in which filtered dragnets will be deployed.¹⁸⁹

Thus, in the context of filtered dragnets, “privacy” concerns are attempting to capture and curb something bigger: too much social control at the discretion of the government.

B. Filtered Dragnets and the Risks of Tyranny

An authoritarian regime thrives when it has unlimited discretion to issue stiff punishment based on criminal behavior that has negligible negative consequences (and possibly even positive consequences) to society. This threat is blunted if the state lacks the means to acquire evidence of criminal behavior, but with reliable surveillance mechanisms, law enforcement officials will be able to exert as much social control as they please, because nearly every person can be charged with a crime.¹⁹⁰

Thus, filtered dragnets present risks that run along three vectors: (1) overbreadth of criminal law; (2) overly harsh punishment of criminals; and (3) overly discretionary investigations and enforcement. If these three forces remain unchecked, filtered dragnets could cause more harm than good. In the wrong hands, filtered dragnets could cause catastrophic risks of the sort that the Constitution is meant to prevent.

1. Overbreadth of Criminal Law

A government that has the capacity to detect criminal behavior at very high rates must come under heightened standards of care when it promulgates or maintains its criminal laws. If we wince at the thought that everybody who commits a minor offense will get caught and will be prosecuted if they do not seem to qualify for a privilege or defense, this is a sign that the conduct is a poor fit for criminal law, and legislators must consider alternatives (e.g., warnings, civil fines, or positive incentives for pro-social conduct) instead.¹⁹¹

Right now, constitutional case law does very little to constrain the creation of criminal laws. Outside criminal statutes that would intrude upon specific individual liberties recognized in the Bill of Rights, the courts hold legislatures to very low standards of care (the rational basis test).¹⁹² This latitude on substance has a curious relationship with the procedural restrictions imposed by the Fourth Amendment: as long as police have probable cause to believe that a person is violating or has violated a criminal law, police can make an arrest or initiate a search, no matter how trivial the offense. Thus, in Atwater v. Largo Vista, the Supreme Court found that the government acted within the bounds of the constitution when a police officer arrested a woman who was driving with two small children for the violation of a seatbelt law.¹⁹³

Even if the Court is reluctant to interfere with legislators’ management of criminal codes, common sense dictates that some crimes are much worse than others. The state’s attention should focus on conduct that causes serious harm to others. There is a reason, for example, that the states that have regulated familial DNA-matching programs have allowed their use only for serious offenses like murder and rape,¹⁹⁴ and Baltimore’s Aerial Investigation Research (“AIR”) system, before it was dismantled, was restricted to use in investigating a limited set of very serious crimes.¹⁹⁵ It is the same reason that the federal Wiretap Act permits courts to issue wiretap orders only when there is probable cause to investigate one of the explicitly listed serious criminal offenses.¹⁹⁶ The same impulse explains why there is scholarly criticism and public outrage when a surveillance system adopted for the purpose of detecting one set of serious criminal violations (like smuggling or terrorism) is simultaneously used to detect violations of drug laws.¹⁹⁷ The unstated assumption is that some crimes should be detected as well as possible (terrorism, for instance) and some should not.¹⁹⁸

The fact that state and federal criminal law has dramatically expanded in quantity and complexity is not in dispute.¹⁹⁹ And yet, curiously, responses to the problem tend to focus on procedural rather than substantive limits.²⁰⁰ The unchecked growth of substantive criminal law ironically creates a problem for public safety because the fear of prosecution prompts a demand for privacy and law enforcement obstruction.²⁰¹

The first and most obvious reason to place limits on criminal liability is to reduce the opportunity for unnecessary social control. The relationship between the government and the governed changes profoundly when a crime has been committed. The defendant in Atwater should have put a seatbelt on her children, and the government has an interest in encouraging, even requiring, that behavior. But not through criminal law.²⁰² A second reason to constrain the substance of criminal law is to increase compliance with the rules we care about most.²⁰³ Overstuffed criminal codes also bleed into the problems of law enforcement discretion (discussed at greater length below) because the government has too much power to decide which members in the nation of criminals to send to prison.

Consider two examples that illuminate the problem through opposite ideological lenses. First, abortion will be criminalized in many states in light of Dobbs v. Jackson Women’s Health Organization.²⁰⁴ Some states are considering criminal liability for women who seek out an abortion.²⁰⁵ For liberals and progressives, criminal liability for abortion-seekers represents an intolerable overreach of the state. To combat the substance of these laws, organizations such as the ACLU have already issued warnings about the risk that geofence searches could facilitate arrests and prosecutions of a law that a sizable portion of the state’s constituents believe is unjust.²⁰⁶

By contrast, conservatives might be concerned about overzealous enforcement of gun restrictions.²⁰⁷ Geolocation and credit card transaction data could be used to create a filtered dragnet that finds individuals without a gun license who cross state lines, attend a gun show, make a sizable purchase, and immediately return to their state.

In both cases, perceived flaws in the substance of the law would not be so troubling if the laws carried only modest punishments—warnings or fines, for example, rather than the incarceration and downstream labor and housing problems that inevitably follow conviction.²⁰⁸ But given the breadth and severity of criminal law, plus the mostly unchecked discretion that police departments have when deciding which among an ocean of technical criminal violations to investigate, the prospect of near-perfect detection takes on a more sinister character. Thus, when people have reservations about, for example, Alexa devices being used to detect the sounds of domestic violence, the reservations stem not from the specific use case but the general capabilities. They wonder, for good reason, what mischief can be made from such a technology when the set of conduct that is forbidden and harshly punished is sprawling and unevenly enforced.²⁰⁹

Criminal codes are often expanded when the state has not gotten a handle on crimes of violence and property theft. The criminalization of vice (alcohol and drugs) was supported by the community not necessarily out of concerns that the drugs themselves cause to users but because of the “unconscionable violence” that came along with trafficking and addiction.²¹⁰ In other words, substantive criminal law is expanded to compensate for deficiencies in the detection and prosecution of crimes that were already on the books so that police could arrest for lower level crimes and (stochastically) reduce the incidence of more serious crimes.²¹¹ If detection of the serious crimes were more functional, this should relieve the need for sprawling criminal codes.

Hence the dilemma: better crime detection could help stop the pattern of an upward ratchet, but as long as the criminal codes are already sprawling, there will be resistance to increasing detection.

2. Overly Harsh Punishment

On severity of punishment, the United States stands out among developed nations. We use incarceration intensively. In France and the U.K., a criminal who punches a person in the nose would be sentenced to less than six months in jail.²¹² The same conduct in the U.S. would result in a sentence of about three years.²¹³ Moreover, no outsider would mistake our prisons for institutions of rehabilitation: the entire sentence is usually carried out in a facility that is punishing, with drab quarters, humiliating toilet and bathroom facilities, and rancid food.²¹⁴ Once released, the negative consequences continue as the housing and labor markets penalize criminal convicts.²¹⁵ Long sentences also create risks of abuse by giving police officers and other state agents leverage to extract bribes, pleas, and false confessions.²¹⁶

The harshness of our sentences is the byproduct of a low detection rate. Communities that at various times have been disfigured from crime waves tend to demand more and harsher criminal penalties.²¹⁷ The intuitive appeal of using long prison sentences to make up for low detection rates became the explicit policy of federal and local governments following the landmark work of Gary Becker. Becker modeled crime with a simple formula determined by the probability of conviction and the severity of punishment.²¹⁸ Because it is much easier and cheaper for the state to ratchet up punishment than to catch more perpetrators, his work persuaded many politicians to manage crime through tough sentencing.²¹⁹

The sparseness of Becker’s model for crime rates leaves much to be desired for anybody looking for a comprehensive explanation for crime—crime, of course, has a range of social and economic causes²²⁰—but as Part II explained, there is little doubt that detection has a significant influence over the amount of crime in a given community.²²¹ Punishment, by contrast, seems to have a U-shaped relationship to recidivism, where no punishment and long, harsh punishment both tend to increase the odds that a perpetrator will recidivate.²²²

I do not want to overstate the case for reducing prison time. Roughly half of the inmates in prison are individuals with such consistent sociopathic and antisocial behaviors that for those inmates, long-term incapacitation has positive externalities. Not only does incapacitation prevent these particular individuals from committing additional crimes (specific deterrence), but their families and particularly children may benefit from having less, rather than more, exposure to them.²²³ Nevertheless, the social costs of harsh punishment do not seem to serve deterrence or otherwise be justified outside the context of heinous or repeated criminal activity.

Over-punishment and criminal detection are inextricably connected. We cannot expect to find a political will to reduce punishment unless the police have—and use—new means to detect and root out crime. Filtered dragnets can jolt and resettle the criminal justice system in a new equilibrium where detection, rather than harsh punishment, is the key mechanism for crime control.

3. Discretionary Application

Once the police have committed to investigating a particular crime, filtered dragnets take discretion away from the police to drive the investigation. But there are other points in time before and after a filtered dragnet may be used when government agents can exert control over the process:

i. Selective Protection

When it comes to serious crimes of violence and theft, American police forces have a troubling history of systematically ignoring the suffering of minority communities. Police once actively conspired to deprive former slaves of their right to protection by joining the murderous mobs.²²⁴ Over the subsequent century, police started to exhibit a more passive form of selection by simply not investigating and pursuing crimes committed against African-Americans as zealously as crimes committed against whites.²²⁵ This is a form of inequality that is not adequately addressed in constitutional caselaw.²²⁶ Thus, courts must prevent police from using filtered dragnets to solve crimes committed against one set of privileged crime victims while failing to use the same tools to solve comparable (and comparably detectable) crimes committed against others.

ii. Selective Crackdowns

Police also decide which crimes to target,²²⁷ and when and where to focus their resources.²²⁸ For example, police will decide which crime scene images should be subjected to facial recognition. There is no guarantee that they will pursue arrest and prosecution of violent or destructive participants at Black Lives Matter protests or at a pro-Trump rallies with the same vigor.

iii. Controlling the Data

Whether police use government-held data or data held by private companies to operate a filtered dragnet, they can exert some influence over the process if they are allowed to use a subset of available information to run through the filtered dragnet.²²⁹ For example, if the government were able to limit DNA-matching to the data collected from ex-convicts only, or if a geofence warrant could direct a service provider to look for matching records only among customers who live in a certain precinct, the police could do an end run around the discretion-reducing function of filtered dragnets.

iv. Downstream Decisions

After a suspect is identified by a filtered dragnet, police and prosecutors still have unchecked power to use leniency and to simply not pursue the leads that they do not like.²³⁰

The unifying theme across these decision-making practices is that the Supreme Court has avoided interfering with law enforcement discretion any time it has a plausible connection to judgment about the best use of resources. In Whren v. United States, the Supreme Court rejected a constitutional challenge by a criminal defendant who was pulled over for making an illegal U-turn. The defendant argued that the police would not have pulled over a white person, or any person about whom the police did not have a pre-existing “hunch,” under similar circumstances.²³¹ The court believed that the defendant’s theory of unequal enforcement of minor traffic infractions was irrelevant and unworkable.²³² At the time it probably was.²³³ But it is not anymore and will be even less so in the future. Today, a defendant bringing a case like Whren might have the data, thanks to GPS tracking of police and civilian cars, to demonstrate that police pull over only a small fraction of the illegal U-turns and other traffic infractions that they observe, and that the enforcement disproportionately targets minority drivers (if this is so).²³⁴

If police are able to use filtered surveillance to solve crimes at minimal expense, there will be even less need for discretion. So, if police have a filtered dragnet, courts must make sure they have an acceptable response to the question: “Why did you enforce the criminal law here and not there?”²³⁵

In summary, a government that has the capacity to detect criminal behavior at very high rates must come under heightened standards of care with respect to the promulgation of criminal laws, the use of incarceration and punishment, and the application of detection tools.

V. THE ANTI-AUTHORITARIAN FOURTH AMENDMENT

Anti-authoritarianism, rather than privacy, should be the benchmark for the Fourth Amendment when police develop cases using filtered dragnets. What makes facial recognition or a geofence or some other form of filtered dragnet “reasonable” is not that the privacy of the innocent is protected—they will all do that. Rather, an “unreasonable” use of these technologies means the state is misusing its power to punish and control.

The current trajectory of Fourth Amendment caselaw suggests that we are headed for one of two suboptimal endpoints: either the state will be able to use filtered dragnets with little to protect its citizens from the perils of broad criminal laws, harsh criminal sentences, and selective enforcement, or the state will effectively be prohibited from using filtered dragnets, leaving a criminal justice status quo that nobody would devise and few would defend.²³⁶ But if the courts start to take seriously the fundamental differences between filtered dragnets and other investigation techniques—if they recognize that technology can explode longstanding assumptions about the nature of risk when police increase the detection of crime—courts can harness the disruptive technology and help society land in a better equilibrium.

Thus, the Fourth Amendment must evolve to demand “reasonableness” when detection is easy. The thrust of my proposal is that the phrase “reasonable searches and seizures” should be understood as a more expansive and robust guarantee of reasonableness.²³⁷ Specifically, the requirement of “reasonable” seizures should guarantee that the consequences of a seizure (e.g., carceral arrest and a possible prison sentence) are fitting and proportionate to the gravity of the suspected crime. The requirement of “reasonable” searches should guarantee not only that the search is conducted based on probable cause and in line with established warrant requirements, but also that the decision to search or not search is reasonable and non-arbitrary. The former ensures that the criminal law being enforced is serious enough to justify the loss of rights that comes along with an arrest or a long sentence. The latter ensures that criminal detection tools are used in an even-handed manner.

A. Reasonable Seizing—Restricting the Substantive Criminal Law

The prospect of near-perfect detection requires more care in defining a reasonable seizure. In order for a carceral seizure of a person to be reasonable, state uses of force and coercion involved must be justified by the harm that the arrestee has imposed on society. “Freedom from unreasonable . . . seizures” should be interpreted to protect the interests of individuals who have engaged in conduct that is technically illegal but not morally reprehensible.²³⁸ Thomas Jefferson’s unfinished vision laid out in the Declaration of the Rights of Man and of the Citizen provides the blueprint. Article 4 states, “Liberty consists in the power to do anything that does not injure others”; Article 5 states, “The law has the right to forbid only such actions as are injurious to society”; and Article 8 states, “The law ought to establish only penalties that are strictly and obviously necessary.”²³⁹

A seizure should only be reasonable if the underlying criminal conduct and the resulting punishment are also reasonable. While substantive due process rights and the Eighth Amendment provide some absolute constitutional limits against unreasonable criminal codes or punishments, these rights must be bolstered in the face of near-perfect detection. An analysis of reasonable seizures in light of filtered dragnets has two aspects to it: (1) whether the behavior is sufficiently blameworthy to belong in the criminal code at all, and (2) if so, whether the punishment fits the risks and harms of the crime.

Is the conduct crime-worthy? The first inquiry asks whether the suspect’s conduct is bad enough to justify arrest and incarceration at all.²⁴⁰ This is a threshold issue. Criminal conviction needs to be blameworthy and stigmatizing. Defining what sort of conduct is “blameworthy” raises deep philosophical questions, but there is an aspect of the question that is empirical: it needs to be rare. If the conduct captured by the scope of the criminal codes is commonplace, the actor’s community evidently has not incorporated restraint deeply into its moral fabric.²⁴¹ In those cases, government intervention short of criminal liability (including expressive law, civil fines, or positive reinforcement for its opposite) should be used.²⁴²

This is at odds with cases like Atwater, where the court refused to second-guess a local government’s decision to criminalize a minor driving infraction,²⁴³ but Fourth Amendment case law does occasionally break rank with Atwater and peeks at the substance of the criminal violation in order to gauge the reasonableness of a procedure. For example, when analyzing whether a warrantless traffic checkpoint is constitutional as a reasonable warrantless seizure, the Supreme Court explicitly considers “the gravity of the public concerns served by the seizure” as one of the factors.²⁴⁴ And the Court has refused to allow exigent circumstances to excuse the failure to secure a warrant for a home search and arrest when the underlying crime is a minor offense.²⁴⁵ And Atwater is ahistorical: a quick tour of the notorious cases the Crown directed against colonists that inspired the Bill of Rights are offensive, in large part, because of the substance of the crimes. These included crimes such as writing or publishing “gross and scandalous reflections and invectives upon his majesty’s government” or the crimes of illegal trade and inadequate record-keeping.²⁴⁶

Is the punishment too harsh? If the suspect’s conduct is reprehensible enough to pass the initial threshold test, a post-conviction seizure could still be unreasonable if the quality and length of detention is disproportionately harsh.²⁴⁷ The sentences of many crimes, even violent crimes, could probably be reduced to weeks or days, or even converted to non-carceral forms of punishment (like public service or surveillance-enabled supervised release) without increasing crime rates if detection rates were much higher than they currently are. Long-term prison sentences can be reserved for murder, treason, severe sexual assault, severe child abuse, and for the incapacitation of repeat criminals.²⁴⁸ For other crimes, detection through filtered dragnets, rather than a small chance of very harsh punishment, can be the door jamb that stops the metaphorical revolving door of recidivism.

B. Reasonable Searching—Minimizing Discretion

A police department’s use of filtered dragnets will be fair if it avoids gaps in the protection from crime as well as gaps in leniency from enforcement.

1. Duty to Search

All cases of reported or otherwise known crimes that are equally suitable for filtered dragnets should be investigated.²⁴⁹ For example, if a police department can use filtered dragnets to detect gun violence or robberies, and it fails to investigate daytime violence and robberies taking place near low-income schools even though it investigates every daytime robbery or assault that takes place near high-income schools,²⁵⁰ the uneven use of filtered dragnets would render it an unreasonable search. As a practical matter, while it would make more sense for a constitutional challenge to come in the form of a § 1983 claim brought by a resident who is harmed by a detectable or deterrable crime, the challenge is more likely to emerge when a criminal defendant brings a claim similar to the claim brought in Whren (arguing that although they committed an offense, the crime is unequally enforced).²⁵¹ Courts should be open to a claim and evidentiary proof of this sort.

2. Duty to Cast a Large Dragnet

Law enforcement should not have undue control defining the search pool that will be used by a filtered dragnet. The database that will be used to cross-check against the facts of a crime should include everyone possible whose data is accessible and whose participation in the crime would not be an impossibility. This reduces the risk of arbitrariness or bias that could result if police search for potential leads and matches in one population while ignoring another.

By this standard, facial recognition systems like Clearview AI are more legitimate (in the sense of being less susceptible to bias or discretion, at least) when they match surveillance footage at a crime scene against the largest possible set of publicly available portraits on the open web. Contrast this with DNA filtered dragnets: it is increasingly common and popular to restrict local law enforcement who are running DNA searches to CODIS, the federally maintained database of arrestee or convict DNA samples.²⁵² Whatever rationale might justify subjecting convicts to greater likelihood of being caught in their own future crimes, the logic does not follow to arrestees or to individuals whose crimes are detected through familial DNA.²⁵³

The principle of evenhanded enforcement is consonant with what Bennett Capers meant when he argued that equitable policing may require “redistributing privacy.”²⁵⁴ But it may require courts to enforce subpoenas or issue warrants in order to pierce through corporate policies that resist law enforcement access.²⁵⁵ These policies are already in place at some companies.²⁵⁶ Of course, there may be times when law enforcement resources really are constrained so that investigating every trackable crime or casting the widest possible dragnet will not be possible, but the police should be able to offer some reasonable explanation. And an explanation that would not be reasonable is that too many individuals would be caught: if the availability of filtered dragnets forces law enforcement to confront the problem that there are too many criminal acts, the proper government response is to revisit and narrow or purge some of the substantive criminal laws.

C. Police Culture: The Era of the Nerdy Police Force

The adoption of filtered dragnets will require law enforcement agencies to become more technocratic. Much of the initial investigation work is likely to be centralized, in upper management working at desks, and their compliance with Fourth Amendment restrictions will require competence, if not expertise, in statistical methods and data auditing procedures. To some extent, this change in operations is already happening with the gradual introduction of DNA forensic labs, facial recognition, and now, reverse searches. With clear Fourth Amendment guidance for filtered dragnets, police forces could rapidly adopt filtered dragnets and divest somewhat from traditional techniques. Police operations would shift away from self-initiated patrols and field-based investigation toward data-driven initiation and investigation. This will change who is qualified for and attracted to a policing job. Police investigators who are used to solving cases through interrogations and informants will begin to feel like the baseball scouts who still visit high school and college teams looking for “good legs” while their younger, nerdier, and (eventually) better paid colleagues use Bill James-style statistics to prioritize the team’s recruiting efforts.²⁵⁷

This may prove to be a feature—a way to achieve the reform of police culture by working backwards from shared ends that are appealing to both suburban families and Black Lives Matter activists (lowering crime, reducing false convictions, and achieving even-handed enforcement). The cultural shift can provide counterpressure to a problem that currently plagues police recruitment—that the people most interested in working for law enforcement have stronger-than-average preferences for meting out punishment.²⁵⁸ All the more reason civil liberties organizations should reconsider their instinctive negative reactions to filtered dragnets.

The criminal defense bar may get transformed, too. Andrew Ferguson has made the case that law enforcement data-collection and data-mining practices can be inverted to discover negligent or abusive practices within police departments.²⁵⁹ Defendants can make use of “blue data” to prove their cases that, for example, law enforcement had used an unreasonably narrow dragnet.²⁶⁰ This may offend a police department’s sense of agency and self-determination, but this is a reasonable price to pay for the power and efficiency of filtered dragnets.²⁶¹

VI. ADDRESSING FRIENDLY OBJECTIONS

Some readers will no doubt disagree with my description of the looming opportunities and problems that will arise with filtered dragnets, and as a result will reject the policy solutions offered in Part V. I addressed doubts about the upsides of filtered surveillance or the downsides of near-perfect detection as best I can in those earlier Parts. Whatever disagreements about the policy implications remain will have to be aired in other fora. Here, I address some objections that will be raised even by readers who agree that the policies advanced in this Article are sound.

“Friendly” critics will wonder why it is necessary to constitutionalize these policies rather than advocating for a legislative response. The answer, in brief, is that constitutional protections are the only viable tools when several criminal justice rules must be changed at the same time.

Friendly critics may also wonder why the Fourth Amendment is the right vehicle for course correction even if all agree that constitutional law must be pressed into service. On this question, I am more neutral. If the Eighth Amendment and Due Process clauses can be interpreted to reach the same anti-authoritarian objectives, there is little reason to insist on the Fourth Amendment as the primary source of these rights. But since filtered dragnets will inevitably cause seismic activity in Fourth Amendment law, and since highly efficient searches are the reason that the threat of government tyranny will become more pronounced, it is at least fair to say that the Fourth Amendment could be the right constitutional source for the anti-authoritarian rights described in Part V.

A. Why the Courts? (Or, Why Not the Legislature?)

Not every problem in law enforcement needs to be solved through the constitution, but this one does. The political process is exceedingly unlikely to get us out of our criminal justice rut, where low detection rates are messily compensated through criminal liability for minor infractions. Political winds bob from too much lenity to authoritarian severity,²⁶² and as a result, surveillance restrictions and decriminalization usually rise and fall together depending on whether the mood is pro-rights or anti-crime. Political institutions do not have the tools to break surveillance and substantive criminal law apart and to work out a criminal justice horse trade. But a horse trade is what we need: we simultaneously need the police to detect more violent crime while also ensuring that no person who is caught with a $10 baggie of drugs could ever be in a position to go to prison for the rest of their life.²⁶³

This trade—reduced criminal liability in exchange for greater detection—can only be accomplished through constitutional adjustment. If criminal liability and punishment are reduced without a simultaneous increase in detection, crime rates will rise and the ballot box consequences for political actors will be harsh. If detection capacity is increased without any change to the criminal codes, the political actors’ constituents will be justifiably nervous about how the newfound power of detection will be used. But if the two reforms happen at the same time—if the state is constrained by constitutional interpretation from detaining or imprisoning individuals based on minor infractions, or from levying long sentences for anything other than the most serious and violent offenses—surveillance is defanged because the threat of unjust prosecution is reduced.²⁶⁴

Put another way, the political pressure to limit or ban surveillance tools might make sense as a second-best solution if decriminalization and reduced sentencing is politically infeasible, but the risk is that the strategy can lock out the first best solution—the low penalty/high detection solution. Indeed, in the wake of rising murder rates, the decriminalization and police reform movements are already more politically controversial than they were just a couple years ago. If crime rates continue to rise while detection is capped or suppressed through new legal constraints on technology, politically accountable decisionmakers will continue to use mass incarceration to manage crime.

To be fair, many luminaries in the field of criminal justice have seen roughly the same patterns of dysfunction and technological disruption that I have recounted and have recommended solutions in the form of legislation, administrative regulation, and restoring the role of local government. Bill Stuntz, for example, argued that many of the abuses of power in the criminal justice system would be avoided if local governments (rather than states) were the primary promulgators of criminal law and if juries (rather than prosecutors) were the decisionmakers who most often determined whether a defendant should be convicted or serve time.²⁶⁵ Chris Slobogin, Barry Friedman, Maria Ponomarenko, Catherine Crump, and Andrew Ferguson have argued that legislatures and regulatory agencies should be more active in structuring how (non-filtered) dragnet and surveillance technologies should and should not be used in the field.²⁶⁶ But they also acknowledge that politically accountable bodies always run the risk that their decisions will disproportionately benefit the politically powerful and will be relatively indifferent to problems of under-protection and prejudiced enforcement.²⁶⁷

Daphna Renan has argued, convincingly in my opinion, that political processes alone cannot be expected to produce the sort of basic rights and counter-majoritarian protections that the Constitution should guarantee.²⁶⁸ Our agreement ends there, though, because Renan advocates for a Fourth Amendment superstructure, or set of principles, that would set requirements and boundaries on administrative agencies (such as the Privacy and Civil Liberties Oversight Board) tasked with creating law enforcement surveillance programs.²⁶⁹ But no board, no matter how independent, could actually make the grand maneuver that I’m asking readers to consider here—where filtered dragnets are permitted, but in exchange for protection from bad laws, harsh punishment, and discretionary application. Renan’s proposal may be a good second-best solution, but a dramatic reorientation of constitutional priorities can only be done by the Supreme Court. It is time for constitutional renewal in search of a better equilibrium.²⁷⁰

B. Why the Fourth Amendment?

The harder question, and I confess this is where I am on shakier ground, is why the anti-authoritarian principles that I claim are so important during this inflection point are the responsibility of the Fourth Amendment to solve rather than other parts of the Bill of Rights or notions of substantive due process.²⁷¹ The case is somewhat easier for the principle that reasonable searching requires evenhandedness. At the founding, the Fourth and Fifth Amendments were meant to prevent the government from being able to rummage through a disfavored target’s things looking for evidence of a crime, so equal and non-arbitrary treatment was always a goal.²⁷²

The case for using the Fourth Amendment to put constraints on substantive criminal law and sentencing is a bit harder. After all, the Supreme Court has repeatedly authorized law enforcement agencies to execute stops, searches, and arrests, no matter how trivial the law-violating behavior may be to overall public safety.²⁷³ As early as Boyd v. United States, decided in 1886, the Court found that Fourth Amendment protections do not apply to those who have committed a public offense, and courts have declined to second-guess whether the public offense was valid in the course of a Fourth Amendment analysis.²⁷⁴ And one may reasonably think that if courts are going to invalidate an overly harsh prison sentence on constitutional grounds, as I argue they should under the guise of protecting against unreasonable seizures, they would have already imposed these limits under the Eighth Amendment’s cruel and unusual punishment clause.²⁷⁵

Perhaps it would make as much sense to make Eighth Amendment or Due Process protections more robust to ensure that criminal liability is not overbroad and sentences aren’t overlong.²⁷⁶ But a long view of the Fourth Amendment can support a shift from the protection of the property, privacy, and autonomy of non-offenders to the protection of those same interests of those who are innocent in the more platonic sense.

In many ways, the history of Fourth Amendment caselaw shows a faltering and incoherent attempt to get to the main point: to make sure the state does not have too much power to enforce silly crimes and scare its constituents into submission.²⁷⁷ Silly crimes have been at the center of the original construction of the Fourth Amendment and each of its major reforms. Shortly after the American Revolution, sedition laws motivated creative lawyers like Alexander Hamilton to use procedure in order to correct flaws in the substantive criminal law that were not, at that time, adequately constrained by the First Amendment.²⁷⁸ In the context of that time, when states had nearly full rein to search for physical evidence and when prosecutions were proved primarily using witnesses, the thought that constitutional protections could get in the way of convicting rapists and murderers would have been preposterous.²⁷⁹ After all, the founders did not expect the Fourth Amendment to constrain how local law enforcement investigated crimes, and group searches executed without particularized warrants were tolerated.²⁸⁰ Thus, at that time, the buildup of procedure to help protect against crimes of belief and thought had little cost to the control of more conventional crimes.

Courts again increased Fourth Amendment procedural protections during two subsequent periods when the substance of criminal law was directed at questionable, arguably victimless vice crimes like gambling, alcohol (during prohibition), obscenity, and recreational drugs.²⁸¹ In the twentieth century, new information technologies changed the nature of police investigation by enabling wiretapping and forms of long-term tracking of suspects without reliance on trespass or witness cooperation. The standard story is that these technologies unsettled the balance between conflicting societal goals related to police investigations, which is true enough. But another important factor is that the test cases involved the detection and enforcement of gambling, bootlegging, and drug distribution crimes. Katz v. United States, the Fourth Amendment case that developed the reasonable expectations of privacy test, involved bugging a phone a bookmaker was using.²⁸² And it followed the logic of Justice Brandeis’s dissent in an earlier case, Olmstead v. United States,²⁸³ which involved the wiretapping of a bootlegger.²⁸⁴ Katz marked the end of a primarily property-based conception of Fourth Amendment rights and ushered in the privacy phase. When test facts making their way to the Supreme Court involved more serious crimes, like stalking, the Supreme Court avoided finding a privacy violation.²⁸⁵

To be clear, there are other reasons, separate from the substance of the criminal law being enforced, that justify a focus on privacy. Twentieth century surveillance capabilities certainly left Americans—criminals and the innocent alike—at greater risk of unwanted observation of licit activities. But there is also a clear pattern: courts have used criminal procedure to frustrate the enforcement of controversial criminal statutes that cover activities in which a sizable proportion of Americans willingly participate.²⁸⁶ Once privacy posed a significant obstacle to police investigations, procedural rights became the default defense against a tyrannical state. There was less pressing need to press the Constitution into service to challenge whether conduct should even be considered criminal in the first place or whether the police are protecting communities fairly. For better or worse, the Fourth Amendment privacy rule created a tractor beam for public defenders and civil liberties organizations to concentrate their anti-authoritarian efforts.

Scholars have occasionally attempted to refocus the Fourth Amendment on a more general purpose to create a constraint on power.²⁸⁷ Bill Stuntz faulted Fourth Amendment’s turn to privacy because it “tend[ed] to obscure more serious harms that attend police misconduct.”²⁸⁸ More recently, Thomas Crocker has argued that the Fourth Amendment should be understood as a substantive right, not just a procedural one, that follows in the vision of the First, Second, and Ninth Amendments.²⁸⁹ But ultimately, Crocker advocates for the use of this substantive right to argue for a more thorough protection against surveillance.²⁹⁰ Naturally, I think this misses the point. A citizen whose government makes nearly all conduct and action illegal will never feel secure no matter how many restrictions on surveillance are in place. And conversely, a government that is rigidly constrained from expanding its criminal laws beyond the conduct that is nearly universally reviled will be limited in its ability to threaten a citizen’s sense of liberty no matter how much surveillance is in place.

The happenstance of technology provides another reason to prefer the Fourth Amendment over other constitutional sources to redress the problems of overcriminalization and uneven protection. The privacy of the innocent was mediating the clash between American values in freedom and security. Increasing use of filtered dragnets will make this arrangement untenable. If we expect the role of the Fourth Amendment to be meaningful—to be something other than a brief paperwork requirement in the process of securing warrants for filtered dragnets—it is both necessary and appropriate that Fourth Amendment caselaw starts to look for its root function and embrace its substantive as well as procedural dimensions.

CONCLUSION

In 1967, Alan Westin, a leading light among privacy scholars, said that “the modern totalitarian state relies on secrecy for the regime, but high surveillance and disclosure for all other groups.”²⁹¹ This is probably a true statement, but highly incomplete. Surveillance is a necessary condition for authoritarian control, but not sufficient on its own. Indeed, all modern states need surveillance. Modern systems of taxation, public benefits distribution, medical services, and public health could not function without copious amounts of personal data. Thus, surveillance is necessary for all states, not just despotic ones. Moreover, surveillance is no more unique to totalitarianism than are weapons, prisons, and other tools the state must use to carry out the most basic obligations to support social order and security.

The tools that live exclusively in the toolbox of despots are repressive substantive criminal laws, harsh punishment, and discretion to choose when to enforce the law. Even in George Orwell’s dark depiction Nineteen Eighty-Four, Big Brother was oppressive partly because of the substance of the law: the wrong thought could land a person in jail.²⁹²

Against this threat of uncontrolled surveillance, many privacy scholars recommend the dismantling of the surveillance apparatus. This Article focused instead on the “uncontrolled” quality of uncontrolled surveillance. Filtered dragnets are a highly controlled dragnet that reveal only criminal violations. Thus, they are only as threatening to society as the criminal statutes that they enforce and the discretion of the government agents who use them. With the right alignment of Fourth Amendment rules to authoritarian threats, the state can be made to heel—to detect crimes fairly without burdening any communities with under-protection or over-punishment. This will require some intrusion of the traditionally procedural domain of the Fourth Amendment into the substantive realm of criminal law and punishment. If the state can suddenly detect every violation, prison must be reserved for truly awful behavior, and law enforcement should have less latitude to seek out or avoid the investigations of members of certain groups.

These are radical proposals. They go well beyond the privacy framework that has dominated Fourth Amendment theory for over half a century. But they respond to a radical tool that will shock a criminal justice system that is already in crisis and deserves rescue.

97 S. Cal. L. Rev. 571

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Jane R. Bambauer*

* University of Arizona James E. Rogers College of Law. The author is grateful for the advice and invaluable feedback from Jordan Blair Woods, Tracey Maclin, Farhang Heydari, Toni Massaro, Tammi Walker, John Villasenor, Andrew Woods, Lilla Montagnani, Kiel Brennan-Marquez, Jeffrey Fagan, Christopher Slobogin, Derek Bambauer, Mark Verstraete, Xiaoqian Hu, Andrew Coan, Niva Elkin-Koren, Uri Hcohen, and Tal Zarsky.

Regressive White-Collar Crime

June 2024July 2024Stephanie Holmes Didwania*

Fraud is one of the most prosecuted crimes in the United States, yet scholarly and journalistic discourse about fraud and other financial crimes tends to focus on the absence of so-called “white-collar” prosecutions against wealthy executives. This Article complicates that familiar narrative. It contains the first nationwide account of how the United States actually prosecutes financial crime. It shows—contrary to dominant academic and public discourse—that the government prosecutes an enormous number of people for financial crimes and that these prosecutions disproportionately involve the least advantaged U.S. residents accused of low-level offenses. This empirical account directly contradicts the aspiration advanced by the FBI and Department of Justice that federal prosecution ought to be reserved for only the most egregious and sophisticated financial crimes. This Articles argues, in other words, that the term “white-collar crime” is a misnomer.

To build this empirical foundation, the Article uses comprehensive data of the roughly two million federal criminal cases prosecuted over the last three decades matched to county-level population data from the U.S. Census. It demonstrates the history, geography, and inequality that characterize federal financial crime cases, which include myriad crimes such as identity theft, mail and wire fraud, public benefits fraud, and tax fraud, to name just a few. It shows that financial crime defendants are disproportionately low-income and Black, and that this overrepresentation is not only a nationwide pattern, but also a pattern in nearly every federal district in the United States. What’s more, the financial crimes prosecuted against these overrepresented defendants are on average the least serious. This Article ends by exploring how formal law and policy, structural incentives, and individual biases could easily create a prosecutorial regime for financial crime that reinforces inequality based on race, gender, and wealth.

INTRODUCTION

Fraud is an old crime. It can be found in criminal codes around the world for as long as the historical record exists. The Code of Hammurabi, composed around 1750 B.C.E. in Ancient Babylon, included several provisions outlawing various forms of fraud with punishments including death.¹ As Alice Ristroph has noted, the second-lowest level of Hell in Dante’s fourteenth-century Inferno is reserved for people who perpetrate fraud, treating them more harshly than those who engage in physical violence.² According to the United States Supreme Court, “fraud has consistently been regarded as such a contaminating component in any crime that American courts have, without exception, included such crimes within the scope of moral turpitude.”³

Our state and federal criminal codes define myriad kinds of frauds, which comprise the majority of what we call “financial crimes” or “white-collar crimes.” Every year, tens of thousands of U.S. residents are convicted of financial crimes, most of them frauds.⁴ Yet, financial crime rarely surfaces in public discussion about how substantive criminal law fuels mass and unequal incarceration in the United States.

Instead, the terms “financial crime” and “white-collar crime” usually conjure up images of a rich banker on Wall Street or an elite executive in a powerful multinational corporation who is able to escape prosecution.⁵ This imagery is fueled by an academic and popular discourse that tends to equate financial crime with the executive class and emphasizes the absence of prosecutions against wealthy people. For example, in recent years, much journalistic coverage of financial crime has focused on explaining why so few people and no companies were convicted of a crime connected to the financial crisis of 2008.⁶ Similarly, much academic scholarship about financial crime attempts to document and explain the causes and consequences of the U.S. Department of Justice’s (“DOJ”) routine policy of declining or deferring prosecution of financial crimes committed by or within large companies.⁷ This Article argues that this popular conception of financial crime is inaccurate.

The popular imagery surrounding white-collar crime is also kindled by prosecutors themselves. For decades, the DOJ has repeatedly and publicly touted its focus on fraud prosecutions that hold corporate executives and corporations accountable as opposed to poor and middle-class people. Prosecuting business executives, according to Attorney General Merrick Garland, is “essential to Americans’ trust in the rule of law.”⁸ That is because “the rule of law requires that there not be one rule for the powerful and another for the powerless; one rule for the rich and another for the poor.”⁹ Numerous attorneys general have made similar statements.¹⁰ This prosecutorial discourse risks creating the false impression that financial crime is primarily committed by the most wealthy and privileged Americans and, perhaps as a result, is leniently, if ever, punished. The reality, as this Article shows, is the opposite.

In short, this Article shows that our prevailing conception of financial crime is, at best, incomplete and, at worst, wrong. It argues that scholarly and public discourse around financial crime, which focuses on the absence of “white-collar” prosecutions (that is, prosecutions of members of the wealthy executive class), paints an inaccurate picture of how financial crime is prosecuted. The United States does, in fact, prosecute a huge number of people for financial crimes—thousands per year. But these defendants are for the most part not wealthy executives. Instead, financial crime prosecutions disproportionately involve people who are low-income and people who are Black. This Article suggests that financial crime is in this way unexceptional in an American criminal system that otherwise consistently reflects class- and race-based inequality.¹¹

With data on the roughly two million federal criminal cases prosecuted since the early 1990s matched with county-level Census data, this Article is the first comprehensive study of all federal financial crime prosecutions.¹² This Article demonstrates that, like all federal criminal defendants, the people convicted of financial crimes have fewer resources than the average U.S. adult. Financial crime defendants have attained less formal education than average and frequently rely on appointed counsel. Federal judges waive the fines of roughly eighty-six percent of federal financial crime defendants due to the defendant’s inability to pay. In other words, the median fine in a federal white-collar prosecution is $0.

This Article also shows that financial crimes are not prosecuted at equal rates across the U.S. population. Women are prosecuted at higher rates for financial crimes than for other types of federal crimes.¹³ The same is true in state courts, as Kaaryn Gustafson and others have pointed out.¹⁴ Financial crime prosecutions are also unequal by race. Black women are especially likely to be prosecuted for financial crimes and are prosecuted at roughly three times the per capita rate as Hispanic and non-Hispanic White women.¹⁵ The same is true for Black men, who are prosecuted at roughly three times the rate as Hispanic and non-Hispanic White men.¹⁶

This analysis is especially important for understanding racial inequalities among female defendants. Black women are more likely to be convicted of a financial crime than any other type of federal crime.¹⁷ This has been true every year since 1994—as far back as reliable federal criminal case data goes.¹⁸ The same is not true of any other race-gender group of defendants.¹⁹

This Article also shows it is not the case that the defendants most overrepresented in financial crime cases (that is, low-income defendants and Black defendants) commit the most severe or complex financial crimes. The opposite is true. I argue that these prosecutorial patterns could easily stem from a combination of formal law and policy, individual biases, and systemic incentives.

A muddled view of how financial crime is prosecuted has meaningful consequences. Maybe because financial crime (often stylized as “white-collar” crime) is viewed as a pursuit of the elite, there seems to be little appetite for leniency toward those convicted of financial crimes on either side of the political aisle. As Benjamin Levin and Kate Levine write, “prosecuting some imagined class of bankers or executives remains very popular with many liberal, left, and progressive commentators.”²⁰ Along these lines, President Biden’s clemency efforts have almost exclusively—and in some cases explicitly—focused on people serving sentences for drug trafficking or possession.²¹

Not only has the Biden administration essentially excluded white-collar prisoners from its clemency efforts, but Attorney General Merrick Garland has also emphasized that cracking down on white-collar crime is one of DOJ’s top priorities.²² In a March 2022 speech describing this white-collar initiative, then-Assistant Attorney General for the Criminal Division Kenneth A. Polite, Jr. echoed the idea that white-collar crime is not punished harshly enough, telling the audience, “When we talk about drug dealing and violence, we all have no problem conjuring notions of accountability for the criminal actors. But the sheer mention of individual accountability in white-collar cases was, and is, received as a shockwave in our practice.”²³ This Article cautions that directing more resources toward prosecuting white-collar crime could perpetuate class- and race-based inequalities rather than mitigate them.²⁴

The federal criminal system is a worthy site to study the regressive prosecution of white-collar crime even though most criminal defendants in the United States are prosecuted in state courts.²⁵ This Article focuses on the federal system for two reasons. First, the federal criminal system is important in its own right. The federal government incarcerates more people than any state and federal prisoners on average serve longer sentences than state prisoners.²⁶ Fraud—the most common financial crime—is itself the third-most prosecuted type of federal crime after drug trafficking and immigration offenses.²⁷ Indeed, even as federal prosecutions of other types of crimes have exploded, fraud alone has constituted around 10 percent or more of the federal felony docket since the early 1990s.²⁸

Second, as described in Section I.B, federal officials repeatedly emphasize that it is their goal to prosecute the most egregious and complex financial crimes. Because state courts have concurrent jurisdiction over many financial crimes, DOJ and FBI can in theory focus their efforts on complex investigations. DOJ and FBI routinely tout their partnerships with other federal agencies to detect and prosecute sophisticated financial crimes. It seems unlikely that state prosecutors are doing better than the federal government at prosecuting complex financial crimes with fewer investigative resources. For this reason, prosecuting serious financial crime is often viewed as a federal project.²⁹

Indeed, many observers rightly view the complexity of serious financial crimes as an impediment to prosecution. Criminal investigations can take years; relevant documents can number in the millions; trials can take months.³⁰ This Article’s primary goal is not to determine whether the federal government has chosen the best balance in prosecuting the cases that it does, but rather to bring to light the fact that most financial crime cases are modest ones that disproportionately impact people with the fewest advantages.

This Article’s analysis advances in four steps. Part I traces the history of financial crime and shows how, for centuries, rich and powerful people have escaped prosecution for financial crimes while people who are poor and middle-class have been prosecuted. Section I.B describes how federal financial crime cases are prosecuted today and provides examples of four such cases. Section I.C argues that most scholarly and public discourse around financial crime overlooks the types of financial criminal cases that are most routinely prosecuted in U.S. courts.

Part II presents the bulk of the empirical analysis. It shows persistent income, gender, and race gaps in financial crime prosecutions that disfavor defendants who are low-income, male, and Black. Part III offers many possible explanations for the results. It groups these explanations into four categories. First, Section III.A considers but rules out the possibility that people who are overrepresented commit the most serious financial crimes. Second, Section III.B describes how systemic and structural conditions create a system in which prosecutors are motivated to prosecute the cases they view as most winnable. Third, Section III.C describes ways that formal criminal law and policies could lead prosecutors to focus their efforts on simplistic, low-level financial crimes. As one example, it shows how federal laws governing restitution benefit defendants with more resources. Finally, Section III.D describes how biases on the part of actors in the criminal system could contribute to inequality.

Part IV concludes. It argues that the findings provide vital context for understanding how financial crime is prosecuted in the United States and challenges the popular notion that financial crime is under-prosecuted.

I. PROSECUTING FINANCIAL CRIME

This Part broadly traces the history of financial crime prosecution. As described in Section I.A, the United States has a long history of prosecuting poor and middle-class people for financial crimes. (Part II shows that this pattern continues through today, despite repeated statements to the contrary by modern prosecutors). Section I.B describes how the federal government has prosecuted fraud since the 1990s and presents four archetypical examples of federal financial crime cases, to which I return throughout the Article. Section I.C explains how this Article contributes to the existing literature on federal financial crime, which largely avoids discussing the relatively low-level cases that pervade the federal criminal system.

A. Early Prosecutions and the Concept of “White-Collar” Crime

Most financial crimes are frauds.³¹ For centuries and up to present day, Anglo-American legal systems have tolerated frauds committed by the rich and powerful while systematically prosecuting poor and middle-class people for fraud offenses.³² But wealthy people have always committed fraud and other financial crimes even if they went unpunished. For example, the term “robber barons” originated to describe medieval English nobles who engaged in extortion.³³ As historian Barbara Hanawalt describes, “kings and barons [of medieval England] both assumed that a certain amount of criminal activity was involved in being a noble and that it would be tolerated as long as it did not become excessive.”³⁴ Although medieval English nobles engaged in “widespread extortion,” they were rarely criminally prosecuted.³⁵

In other words, society saw financial crimes committed by the elite as part of the social fabric. Fraud was thus considered what observers would come to call a “street crime,” meaning it was viewed as a crime when committed by poor or middle-class people. For example, one of early America’s most infamous fraudsters—Charles Ponzi—was a poor immigrant from Italy who worked as a dishwasher, waiter, and bank teller before launching the eponymous scheme that would eventually result in his arrest, conviction of federal mail fraud, and a seven-year prison sentence.³⁶ Despite eventually amassing enormous wealth through his pyramid scheme, Ponzi was never a member of the elite.³⁷

Meanwhile, as centuries went on, the term “robber barons” adapted to refer to business magnates of the nineteenth century who monopolized industries, corrupted government, engaged in unethical business practices, and exploited workers and investors.³⁸ Like the medieval robber barons whose criminal activity was ignored by the King,³⁹ the robber barons of the 1800s were also rarely prosecuted.⁴⁰

By the early twentieth century and spurred by the Great Depression, the public and federal government grew increasingly interested in regulating markets and prosecuting members of the upper classes. During this era, Congress passed antitrust laws and laws regulating Wall Street.⁴¹ Following the stock market crash of 1929, Congress in 1934 created the Securities and Exchange Commission (“SEC”) to restore confidence in the stock market and enforce securities laws.⁴²

Scholars and the public needed an entirely new phrase—“white-collar crime”—to recognize that fraud committed by members of the elite was crime. Recognizing that members of the upper class engaged in enormous amounts of unpunished financial crime, sociologist Edwin Sutherland coined the term “white-collar crime” in his 1939 presidential address to the American Sociological Society.⁴³

Sutherland defined a “white-collar crime” as “a crime committed by a person of respectability and high social status in the course of his occupation.”⁴⁴ Sutherland’s basic thesis was that the academic methods by which crime was understood and measured at the time were invalid because “they have not included vast areas of criminal behavior of persons not in the lower class.”⁴⁵

Sutherland critiqued the academic criminological community for focusing too heavily on “street crimes” perpetrated by “low status” people and for being insufficiently interested in crimes committed by people in “high status” occupations. As an example, Sutherland explained, “The ‘robber barons’ of the last half of the nineteenth century were white-collar criminals, as practically everyone now agrees.”⁴⁶ Sutherland warned, however,

The present-day white-collar criminals . . . are more suave and deceptive than the “robber barons” . . . . Their criminality has been demonstrated again and again in the investigations of land offices, railways, insurance, munitions, banking, public utilities, stock exchanges, the oil industry, real estate, reorganization committees, receiverships, bankruptcies, and politics. Individual cases of such criminality are reported frequently, and in many periods more important crime news may be found on the financial pages of newspapers than on the front pages.⁴⁷

Beginning in the mid-twentieth century, the federal government began to articulate and attempt to carry out a new vision of white-collar prosecution. In the 1970s the SEC created its first enforcement division to uncover fraud.⁴⁸ In 1977, Congress passed the Foreign Corrupt Practices Act which outlawed bribery of foreign officials principally by large U.S. companies.⁴⁹ In the 1980s, DOJ prosecuted over 1,000 cases associated with the savings and loan crisis, including some top executives at major banks.⁵⁰ During this time, as some observers noted, “Many U.S. Attorneys’ Offices . . . restructured their offices in order to develop and prosecute a large number of cases of white-collar crime.”⁵¹ The next subsection describes the mechanics of this modern era of federal enforcement of financial crime.

B. Modern Fraud Prosecutions: 1990s Through Present

Efforts to differentiate financial crime committed by the elite from financial crime committed by poor or middle-class people were short-lived. Today, the term “white-collar” crime eludes easy definition.⁵² Scholars, journalists, and public officials often use the term as in its original definition—to refer to financial crimes committed by wealthy people in the course of business activity,⁵³ as exemplified by Ralph Nader’s pithy description of white-collar crime as “crime in the suites,” rather than “crime in the streets.”⁵⁴

However, official definitions of the term “white-collar” crime typically do not refer to the social status or occupation of those who perpetrate it, but rather, to the type of criminal behavior committed by the defendant.⁵⁵ The FBI, for example, defines “white-collar crime” as “those illegal acts which are characterized by deceit, concealment, or violation of trust and which are not dependent upon the application or threat of physical force or violence.”⁵⁶ The National Incident-Based Reporting System (“NIBRS”), which compiles data on crimes reported to law enforcement, classifies the following crimes as white-collar crimes: fraud, bribery, counterfeiting/forgery, embezzlement, and writing bad checks.⁵⁷

This Article roughly follows the NIBRS definition but uses the term financial crime because, as this Article shows, the term white-collar crime is a misnomer. I define a crime as a financial crime if it is categorized as an antitrust violation, bribery, counterfeiting, forgery, fraud, or tax offense.⁵⁸ Since the mid-1990s, the federal government has prosecuted around 10,000 financial crimes per year, most of them frauds.⁵⁹ This section describes in broad terms how the federal government prosecutes and talks about financial crime.

1. The Statutory Landscape

Federal law today defines many types of financial crimes, most of which are contained in Chapter 47 of Title 18 of the United States Code. The most commonly prosecuted federal financial crimes are embezzlement of public money, mail and wire fraud, bank fraud, and tax fraud.⁶⁰ Congress has repeatedly expanded the scope of federal financial criminal law and, over the years 1994 to 2019, federal defendants were prosecuted for violations of many different types of fraud.⁶¹

Federal prosecutors use mail fraud (and its sister crime, wire fraud) particularly expansively. The original mail fraud statute prohibited the use of the mails to advance “any scheme or artifice to defraud.”⁶² The original purpose of the statute was to protect the U.S. Postal Service from being used to commit fraud. Mail was the “first communications network in the United States,”⁶³ and in 1870 the U.S. Postal Service enjoyed a natural monopoly over mail delivery.⁶⁴ Perhaps because the mail was so widely used, “[o]ver time, the mail fraud statute came to be viewed as a stop-gap provision that provides a ‘first line of defense’ to combat innovative frauds until Congress could enact more specific legislation.”⁶⁵

In 1995, Peter Henning contended that “the mail fraud statute has become the primary provision to extend federal jurisdiction to crimes traditionally prosecuted only at the state and local level.”⁶⁶ Today nearly all frauds use mail, telephone, radio, or the Internet in some way, giving the federal government the ability to prosecute almost any fraud it chooses. Federal prosecutors exercise enormous discretion in deciding which fraud crimes to prosecute, and the resulting prosecutions therefore reflect decisions by prosecutors and law enforcement agents about which cases to prioritize.

Although there are many federal financial crimes, their defining characteristic is that they involve dishonesty. To this end, most financial crimes include mens rea elements that require the government to specifically prove the defendant’s deceitful intent.⁶⁷ For example, the mail fraud statute requires proof that the defendant devised or intended a “scheme or artifice to defraud.”⁶⁸ Health care fraud similarly requires proof that the defendant knowingly and willfully executed “a scheme or artifice . . . to defraud any health care benefit program” or to obtain, “by means of false or fraudulent pretenses, . . . any of the money or property owned by, or under the custody or control of, any health care benefit program.”⁶⁹

Despite this common element, the financial crimes that are prosecuted vary widely on many grounds. Victims of financial crimes can be individuals, organizations, or the government. Some financial crimes have a single concrete victim, others have many, and yet others have no concrete victim (like insider trading). Some financial crimes involve wrongdoing that is also investigated and enforced by the government through civil proceedings (such as securities fraud or tax fraud), while others have no regulatory counterpart (such as embezzlement). The next section broadly describes how federal prosecutors and agents investigate and bring financial crime cases.

2. Federal Prosecutions in Practice

Nearly all federal financial crime prosecutions are brought by prosecutors who work in the ninety-three U.S. Attorney’s Offices (“USAOs”). Each USAO is associated with exactly one of the 94 geographically distinct federal district courts, with one exception.⁷⁰ Every USAO is led by a U.S. Attorney, who is appointed by the President. The prosecutors who work in USAOs are called Assistant United States Attorneys (“AUSAs”).

Although USAOs must follow centralized policies dictated by DOJ leadership, they for the most part work independently, prosecuting crimes that occur within their jurisdictions. Most prosecutorial decisions (such as the decision to bring criminal charges) are subject to little judicial oversight and courts are “hesitant to examine the decision whether to prosecute.”⁷¹ As a result, prosecutors enjoy broad discretion in deciding how to carry out their work.⁷²

Despite limited oversight from the courts, individual prosecutors are subject to other forms of workplace oversight. AUSAs are governed by the Justice Manual, which contains detailed rules for how individual prosecutors should exercise their discretion. For example, the Manual dictates that charging decisions should be reviewed by supervisors and specifies that “[a]ll but the most routine indictments should be accompanied by a prosecution memorandum that identifies the charging options supported by the evidence and the law and explains the charging decision[s] therein.”⁷³

The Manual also expresses a nationwide policy that federal prosecutors should usually charge “the most serious offense that is encompassed by the defendant’s conduct and that is likely to result in a sustainable conviction.”⁷⁴ However, the Manual leaves room for an AUSA to deviate from this policy by also considering “whether the consequences of those charges for sentencing would yield a result that is proportional to the seriousness of the defendant’s conduct, and whether the charge achieves [the] purposes of the criminal law.”⁷⁵

Given these policies, how do prosecutors decide which cases to charge? The answer is complicated and varied, but much legal and sociolegal scholarship has shown the perhaps unremarkable phenomenon that prosecutors seem to like to bring cases they think they can win.⁷⁶ This is because obtaining convictions is often a metric for promotion and advancement.⁷⁷ Winning cases is also important for appropriations. As Lauren Ouziel describes,

U.S. Attorney’s Offices, after all, need money, and federal funds are not forthcoming—either from Congress in the first instance or Main Justice in the subsequent allocation—without some measure of demonstrated performance. For federal prosecutors, the relevant performance metrics are defendants charged and convicted. Both of these metrics determine the lump sum congressional appropriation for all ninety-three U.S. Attorneys’ Offices across the country, while individual offices’ caseloads largely determine the allocation of those funds among the offices. In short, case volume and prosecutorial success dictate a U.S. Attorney’s Office’s budget allocation.⁷⁸

After a person is convicted of a federal crime, federal judges sentence them. At sentencing, a judge can impose fines or imprisonment or both on a defendant, and some scholars have pointed out that fines are imposed more frequently in financial crime prosecutions than in other federal prosecutions.⁷⁹ Some have theorized that fines are more appropriate for defendants convicted of financial crimes because their crimes are more deterrable.⁸⁰ Researchers have also argued that the prevalence of fines in financial crime sentencing reflects a fine/incarceration tradeoff, in which the greater a defendant’s ability to pay a fine, the less (if any) imprisonment is imposed at sentencing.⁸¹

The literature on white-collar crime’s fine/incarceration tradeoff might give the impression that fines are widespread in financial crime prosecutions, but this is not the case. Most federal financial crime defendants do not have any fines imposed in their cases. In the data, the median fine amount for a defendant convicted of a federal financial crime is $0.⁸² A fine of just $500 represents the top thirteen percent of fines imposed among people convicted of financial crimes.⁸³ It is true that fines are more prevalent among financial crime defendants than others (a fine of $500 for a federal defendant convicted of a non-financial crime would represent the top nine percent of all fines imposed),⁸⁴ but it is not the case that fines are widespread among those who are convicted of financial crimes. Instead, fines are much more relevant in cases involving corporate defendants. This is because corporations cannot be imprisoned, fines generate revenue, and prosecutors worry about the collateral consequences that criminal conviction can impose on large corporations.⁸⁵

In addition to fines and imprisonment, convicted defendants will usually be ordered to pay restitution to any concrete victim. Restitution is different from a fine. A fine is a form of punishment imposed on a defendant and usually paid to the government prosecuting the case. Restitution is instead paid by the defendant to either the victim or a government restitution fund. Like the law in all states, federal law requires courts to order restitution in any case “in which an identifiable victim or victims has suffered a physical injury or pecuniary loss.”⁸⁶

Unlike fines, most defendants convicted of a financial crime are ordered to pay some restitution. The median restitution amount ordered is around $6,000.⁸⁷ In contrast, for federal defendants convicted of non-financial crimes, fewer than ten percent are ordered to pay any restitution.⁸⁸

The majority of defendants convicted of federal financial crimes are sentenced to prison. Sentences for financial crime defendants are lower than the average among other types of federal crimes. For federal criminal defendants convicted of financial crimes, the average sentence is around sixteen months.⁸⁹ For all other federal criminal defendants, the average sentence is fifty-three months.⁹⁰ This could reflect the fact that most financial crimes do not carry mandatory minimum penalty provisions.⁹¹

3. Federal Financial Crime Archetypes

This subsection illustrates some of the kinds of financial crime cases the federal government prosecutes. It centers around four real-world examples of federal financial crimes, from least to most severe.⁹² These cases exemplify nationwide patterns that this Article reports and explores in Part II, and this Article returns to these examples throughout.

In Case A, a man who is a citizen of Mexico used a social security number belonging to another person to secure employment and attend a job orientation training with a local company.⁹³ The man was prosecuted in the Eastern District of Louisiana and was ultimately convicted of violating 18 U.S.C. § 408(a)(7)(b), which makes it a crime to fraudulently use another person’s social security number. The man was sentenced to one year of probation.

In Case B, a man received Social Security and Department of Defense benefits intended for his late father for four years after his father’s death.⁹⁴ The man’s elderly father had moved in with the man in 2012.⁹⁵ The man cared for his father for next four years, until his father’s death at age 92 in 2016.⁹⁶ When the man began caring for his father in 2012, they joined bank accounts, into which his father’s benefits were deposited.⁹⁷ After his father’s death, a death certificate was properly filed, but his late father’s benefit payments continued to be deposited into their joint bank account.⁹⁸ Over the four years that followed his father’s death, the man collected $42,103 in Social Security benefits and $41,609 in Department of Defense benefits to which he was not entitled.⁹⁹

Case B was prosecuted in the U.S. District Court for the Southern District of Ohio. The man pled guilty to theft of public money. He was sentenced to eight months in prison and ordered to pay $83,712 in restitution to the Social Security Administration (“SSA”) and Department of Defense.¹⁰⁰

Case B was part of a federal initiative called the Social Security Administration Fraud Prosecution Project.¹⁰¹ The SSA Fraud Prosecution Project is a collaboration of the SSA Office of the Inspector General (“SSA OIG”) and DOJ.¹⁰² The investigation of Case B also involved employees of the Department of Defense Office of Inspector General, the Veteran’s Administration Office of Inspector General, the United States Office of Personnel Management Office of Inspector General, and the United States Secret Service.¹⁰³ It appears that many federal agencies and employees devoted significant resources to bringing Case B and others like it.

In all, the SSA OIG reports that as a result of its audit program, it discovered dozens of instances of people collecting social security or veteran benefits intended for another person in Ohio, a state that has an adult population of more than eight million.¹⁰⁴ The SSA OIG investigation has led the USAO for the Southern District of Ohio to prosecute at least fifteen people in cases like Case B. The losses to SSA associated with these cases average just under $60,000 per defendant.¹⁰⁵

In Case C, a married couple owned and operated a company called Kingdom Connected Investments (“KCI”), which they advertised as a Christian organization.¹⁰⁶ KCI sought to pair clients who fell into two categories: (1) homeowners who owed more on their homes than the home was worth (that is, they were “underwater” on the home); and (2) potential homebuyers who did not have a high enough credit score to qualify for a conventional mortgage. KCI operated by matching homeowners (sellers) and buyers. KCI told the sellers they would transfer title of the home to KCI and take over the home’s mortgage payments, allowing the homeowners to get out of their underwater mortgage. KCI collected down payments from the buyers, telling them they were renting-to-own the home.

None of this was true. In reality, KCI never actually purchased the sellers’ homes, which meant each property still had an existing mortgage in the seller’s name(s) after the sellers thought they no longer owned the home. Rather than using the buyers’ down payments to pay the mortgages in full as promised, KCI used much of these down payments for personal use and to try to build their real estate business. Eventually, with the mortgages unpaid, nearly all the homes went into foreclosure and sold at auction. Many sellers learned that KCI had not actually purchased their home when they received foreclosure notices. Many of KCI’s buyers, who thought they were renting-to-own their homes, learned the truth when the home’s new owners sought to evict them. In all, KCI received $2.7 million from the buyers but only made $1.4 million in mortgage payments. Approximately 130 properties were involved in the scam, suggesting the average buyer lost around $20,000. Most sellers had their credit scores ruined by the foreclosures.

Case C was prosecuted in the U.S. District Court for the District of South Carolina. A federal jury found the defendants guilty of conspiracy to commit mail fraud and equity skimming after just ninety minutes of deliberation. The husband and wife were sentenced to seventy-eight and 136 months in prison, respectively, and ordered to pay $2,664,796.69 in restitution.

Case D will be familiar to many readers. JPMorgan Chase, a major U.S. bank, knowingly packaged shoddy mortgages into securities that did not meet its credit standards. JPMorgan Chase sold these securities to investors. A JPMorgan Chase manager (and attorney), Alayne Fleischmann, described JPMorgan Chase’s mortgage securities business as a “massive criminal securities fraud.”¹⁰⁷ Before the 2008 crash, Fleischmann wrote a thirteen-page memo to her supervisor warning that the bank was improperly packaging bad mortgages into securities and selling them as investments. Fleischmann was fired and bankers at JPMorgan Chase continued in their scheme. Fleischmann eventually became a whistle-blower and provided detailed evidence about JPMorgan Chase’s wrongdoing to the SEC and federal prosecutors.

Unlike the defendants in Cases A, B, and C, the federal government never prosecuted either JPMorgan Chase the organization or any of its employees for their fraud. Chase instead agreed to a $13 billion settlement with federal and state agencies for wrongdoing during the crisis. As a publicly traded company, Chase paid the settlement with shareholders’ money and the settlement agreement did not name any bankers. A few weeks later, Chase’s CEO, Jamie Dimon, received a seventy-four percent raise, bringing his salary to $20 million per year.

C. How We Talk About Financial Crime

Academic and journalistic writing about white collar crime tends to focus on cases like D.¹⁰⁸ It examines and seeks to understand the causes and consequences of a criminal system that is unwilling or unable to convict large firms and the people who lead them, even when those firms and people create staggering social harm and there is evidence that their conduct violates the criminal law. Much work in this area documents the DOJ’s increased use of deferred and non-prosecution agreements for companies engaged in corporate crime.¹⁰⁹ Other work asks similar questions about individuals who hold positions of leadership in corporate organizations that commit crimes.¹¹⁰

In contrast to much of the literature, this Article focuses instead on cases like A, B, and C, which represent the bread and butter of most federal financial criminal enforcement in the United States. Many scholarly examinations of federal white-collar crime characterize these cases as not white-collar crime. For example, Samuel Buell explains in his 2014 study of white-collar sentencing:

Many white collar offenses, maybe even most of them, are committed by pedestrian hucksters, scam artists, cheaters, and liars. Such persons have been among us for ages. This Article makes few claims about the treatment of this class of offenders—the home buyer who lies to obtain a mortgage, the taxpayer who cheats the Internal Revenue Service (IRS), the restaurant manager who bribes the health inspector, and their ilk. The discussion here responds to a public debate that does not often mention the small-time crook.¹¹¹

This Article argues that when—as Buell notes—the public debate about white-collar crime excludes financial crimes committed by people who are not wealthy executives, the exclusion is not merely semantic. Using the term “white-collar crime” to only include prosecutions of elite people shields from public view the vast majority of prosecutions that happen under our financial criminal laws.

We have not always talked about financial crime this way. This Article provides updated and more comprehensive answers to some of the questions asked in a series of studies produced in the 1980s through early 2000s by Stanton Wheeler and others called the Yale Studies on White-Collar Crime (“Yale Studies”). In the final of four studies in this series, the authors analyzed the personal characteristics of those whom the authors characterized as federal white-collar defendants. Using a sample of roughly 210 white-collar defendants randomly sampled from seven federal district courts, the authors found that their sample of white-collar defendants “departs from common images of the typical white collar offender in that they are very similar to average or middle class Americans.”¹¹² The authors also noted that their study found white-collar crimes to “have a much more mundane quality than those which are associated with white collar crime in the popular press,” noting that “the bulk of white collar crimes prosecuted in the federal courts are undramatic and maybe committed by people of relatively modest social status.”¹¹³

The Yale study’s findings are similar but less extreme than the updated and more fulsome patterns this Article documents in Part II. This Article, for example, suggests that the average financial crime defendant is likely to have lower income than the average U.S. adult, whereas the authors of the Yale study find that “most white-collar offenders were from the middle class, that is, they were significantly above the poverty line, but they were not from the upper echelons of wealth and social status.”¹¹⁴ Part II also shows that Black people are disproportionately prosecuted for white-collar crimes, which the Yale study did not find.

A likely reason the nationwide findings presented in this Article suggest the federal financial criminal defendant population is even less advantaged than as suggested by the Yale study is that the Yale authors’ sample was not representative of all federal financial crime prosecutions. The authors explain that they chose seven districts “in part because some of them were known to have a significant amount of white-collar prosecution,”¹¹⁵ and all of the chosen districts contain major U.S. cities. By focusing on districts with active and sophisticated white-collar dockets in large U.S. cities, the Yale study likely overrepresents the income of all federal financial crime defendants. It also uses a sample of federal financial crime defendants whose racial makeup (seventy-eight percent White) is different from what this Article observes in its nationwide analysis (forty-nine percent White).¹¹⁶

This Article also relates to Max Schanzenbach and Michael Yaeger’s 2006 examination of racial disparities in federal white-collar cases.¹¹⁷ Using regression analysis, Schanzenbach and Yaeger find that after controlling for many relevant defendant and case characteristics, Black and Hispanic defendants convicted of white-collar crimes receive longer prison sentences than do White defendants.¹¹⁸ They also find that a significant portion of this inequality can be explained by defendants’ ability to pay a fine, lending support to the idea that there is a fine/incarceration tradeoff in white-collar cases.¹¹⁹

This Article fundamentally differs from Schanzenbach and Yaeger’s work because this Article is a descriptive analysis. Many studies—like Schanzenbach and Yaeger’s—estimate whether defendants within a criminal system appear to be treated differently for reasons they should not be (such as their race,¹²⁰ skin color,¹²¹ gender,¹²² or wealth¹²³). In contrast, this Article does not seek to advance a causal claim about the sources of inequality. To that end, this Article does not compare the outcomes of federal financial crime defendants to each other; it compares the population of federal financial crime defendants to the underlying U.S. adult population. It then examines whether, where, and for how long these inequalities in who is prosecuted have existed. The next Part presents this empirical analysis.

II. INEQUALITY IN FEDERAL FINANCIAL CRIME PROSECUTIOS

Between 1994 and 2019, 1.7 million defendants were convicted of federal crimes and sentenced under the U.S. Sentencing Guidelines.¹²⁴ Around 15% of these defendants were convicted of financial crimes, making financial crime the third-most prosecuted type of federal crime over this period, following drug crime (35% of cases) and immigration crime (25% of cases).¹²⁵ Most defendants convicted of financial crimes were convicted of some type of fraud, and even counted alone, fraud is the third-most prosecuted type of federal offense.¹²⁶

This Part presents the first nationwide empirical analysis of federal financial crime cases. Section II.A explains how I constructed the data set. Section II.B presents summary information about federal financial crime cases. Sections II.C through II.E use sentencing data matched to county-level population data to examine inequality in who is prosecuted for federal financial crimes. Section II.C shows that people who are Black and low-income are overrepresented in financial crime prosecutions relative to the U.S. adult population, while people who are White and middle- to high-income are underrepresented. Section II.D shows that income and race gaps in the prosecution of financial crime have narrowed over the last few decades but remain significant. Section II.E documents differences in these inequality patterns across federal districts. It shows that USAOs in the Deep South prosecute female defendants at the highest rates. Because states in the Deep South have among the largest Black populations in the U.S., their more intensive prosecution of women for financial crimes drives the overrepresentation of Black women among financial crime defendants. Section II.E also shows that Black defendants are overrepresented in financial crime cases in nearly all federal districts, which demonstrates that the nationwide inequality patterns are not solely a function of different prosecutorial priorities between districts.

A. Data

The descriptive analysis that follows presents two types of facts about federal financial crime prosecutions. First, it describes the scale of federal prosecution of financial crime. It answers questions like: How many people does the federal government prosecute for financial crimes per year? How does this number compare to prosecutions for other types of federal crimes? How has this number changed over time? Second, the analysis describes representation in federal prosecutions of financial crime. It answers questions like: Are low- or high-income people over- or underrepresented among federal defendants charged with financial crimes? Which, if any, racial or gender groups are over- or underrepresented? Does over- or under-representation vary over time? Does it vary between USAOs?

Answering these descriptive questions requires two types of data: data on federal criminal cases and data on the U.S. adult population. The dataset used in this Article includes quantitative data of the roughly 1.7 million federal defendants sentenced under the U.S. Sentencing Guidelines in fiscal years 1994 through 2019, matched at the district and year level to population data from the U.S. Census. I built the federal criminal case dataset by combining annual data files published by the U.S. Sentencing Commission (“Commission”).¹²⁷

The Commission data files include thousands of variables that describe federal criminal defendants and their cases. Critically for this project, the Commission data include a defendant’s self-reported race and Hispanic ethnicity, gender,¹²⁸ level of formal education, age, and the nature of the defendant’s prior criminal record. The Commission data also include variables that provide information about the subject of the defendant’s case, such as the type of offense (divided into thirty-five categories) and the statutes of conviction. The Commission data also include variables describing case outcomes, including details of the sentence imposed upon the defendant and their advisory sentencing range. Finally, the Commission data report the month, year, and federal district court in which the defendant was sentenced. These variables allow me to understand the geography and history of inequalities in federal financial crime prosecutions.

After building the Commission dataset, I merged it with county-level data published by the U.S. Census Bureau that describes the U.S. adult population (“Census Data”). The Census Data’s county-level intercensal population estimates include annual age-by-race-by-gender data of county populations.¹²⁹ The Economic Research Service of the USDA publishes county-level educational attainment information of the adult population using data from the U.S. Census and American Community Survey.¹³⁰

After compiling the county-level Census Data, I aggregated it to the federal district level with a district‑to-county crosswalk file.¹³¹ This matched data allowed me to measure per capita prosecution rates between districts and to compare characteristics of the federal defendant population with the entire adult resident population over time and within each federal judicial district.

B. Preliminary Descriptive Statistics of Federal Financial Crime Cases

Before examining inequality in federal financial crime cases, Table 1 presents descriptive statistics of these cases from the data. I define a case as a “financial crime” if the Commission data characterizes it as an antitrust, bribery, counterfeiting, forgery, fraud, embezzlement, larceny,¹³² or tax crime.

The Commission data do not include a variable to characterize the victim(s) in the case, so I coded this variable based on the criminal statute under which the defendant was convicted. Based on the statute of conviction, I coded the case as involving one of these four victim types: (1) a government victim; (2) a private victim; (3) no concrete victim; or (4) an unknown victim. For example, a case in which the defendant is convicted of embezzling or stealing public money is coded as having a government victim.¹³³ A case in which the defendant is convicted of defrauding a bank is coded as having a private victim.¹³⁴ A case in which the defendant is convicted of making a false statement to a federal agent is coded as having no concrete victim.¹³⁵ A case in which a person is convicted of defrauding a health insurer is coded as having an unknown victim because a person can commit this crime by defrauding either a government insurer (like Medicare) or a private insurer.¹³⁶ Appendix Table A.1 lists the statutory provisions for defendants convicted of the most common financial crimes and how they were coded.¹³⁷

Table 1 provides summary statistics of many variables about the defendants and their cases in the data. Column (1) of Table 1 presents averages for the variables across all 276,210 defendants convicted of financial crimes in the years 1994–2019. Columns (2) through (5) present averages for the same variables among defendants whose crimes involve the lowest losses (column (2)) through largest losses (column (5)).¹³⁸ Because the severity of financial crimes is (for the most part) increasing in loss amount, readers should think of moving across Table 1 from column (2) to column (5) as moving from less serious to more serious financial crimes.¹³⁹

Overall, Table 1 presents initial descriptive patterns that suggest regressive inequality in financial crime prosecutions. First, readers will notice that fraud makes up more than 80% of financial crime cases across all columns, making up 76.5% of low-level cases (column (2)) and 87.8% of high-level cases (column (5)). The median loss in a financial crime prosecution is just under $50,000, but it is $0 in the lowest quartile and nearly $850,000 in the highest. The median fine in all categories—even the most serious financial crimes—is $0.

Table 1 shows there are differences in the representation of defendants by race, gender, and income levels across the severity distribution. Black defendants and female defendants make up a smaller share of defendants in high-loss cases than in other types of cases. Specifically, Black defendants and female defendants each make up around 30–40% of defendants in low to medium-loss cases, but only around 25% of defendants in high-loss cases. Hispanic defendants are particularly overrepresented in low-loss cases. This could be because around half of Hispanic defendants convicted of financial crimes are not U.S. citizens, and among non-citizen defendants many are convicted of crimes that do not involve a concrete victim, such as making a false statement to federal officials or using a false social security number, as in Case A described in Section I.B.

The pattern is similar for education. Defendants who have not completed high school—who are likely to be those with the fewest resources—appear in low-level cases at much higher rates (28% of defendants) than they appear in high-loss cases (11% of defendants). The pattern for defendants who have college degrees—who are likely to be those with the most resources—is the opposite. College graduates make up 31% of defendants in high-loss cases and just 10% of defendants in low-loss cases.

Overall, Table 1 provides initial descriptive evidence of patterns that this Article explores in the next three subsections. It suggests that people who are likely to have the most advantages—people who are male, White, and have completed college—are more frequently prosecuted for more serious financial crimes than others. The rest of this Part examines inequality in the entire data, over time, and by geography.

Table 1. Federal Financial Crime Prosecutions, 1994–2019
	All Financial Crimes (1)	Low Loss (2)	Med-Low Loss (3)	Med-High Loss (4)	High Loss (5)
Offense Characteristics
Antitrust	0.002	0.003	0.003	0.003	0.003
Bribery	0.021	0.026	0.020	0.015	0.015
Counterfeiting/Forgery	0.083	0.189	0.103	0.049	0.021
Fraud	0.833	0.765	0.833	0.832	0.878
Tax Offense	0.061	0.018	0.044	0.105	0.083
Government Victim	0.246	0.305	0.315	0.294	0.151
Private Victim	0.422	0.298	0.440	0.455	0.540
No Concrete Victim	0.057	0.142	0.035	0.020	0.008
Unknown Victim	0.276	0.256	0.210	0.231	0.302
Loss (median in $)	48,362	0	20,802	105,997	847,375
Defendant Characteristics
Black	0.293	0.302	0.384	0.324	0.237
Hispanic	0.147	0.199	0.114	0.115	0.137
Other Race/Ethnicity	0.068	0.064	0.056	0.058	0.065
White	0.492	0.434	0.446	0.503	0.561
Male	0.702	0.688	0.610	0.674	0.766
Less than HS	0.189	0.282	0.211	0.157	0.106
HS Only	0.315	0.356	0.355	0.308	0.248
Some College	0.310	0.258	0.316	0.343	0.333
College Grad	0.186	0.104	0.118	0.192	0.313
U.S. Citizen	0.669	0.671	0.740	0.773	0.797
Retained Counsel	0.337	0.218	0.264	0.408	0.562
Fines Waived	0.859	0.827	0.905	0.909	0.920
Case Characteristics
Guidelines Mean (months)	28.7	12.3	12.6	22.6	54.3
Any Incarceration	0.559	0.491	0.495	0.702	0.863
Sentence (months)	16.4	8.4	7.2	14.2	36.2
Below Guidelines	0.478	0.236	0.495	0.611	0.599
In-Range	0.499	0.730	0.484	0.369	0.383
Above Guidelines	0.021	0.033	0.019	0.018	0.017
Fine (median in $)	0	0	0	0	0
Restitution (median in $)	5,800	0	11,422	65,000	429,968
Observations	276,210	43,151	43,146	43,226	43,071
Note: All variables are coded as 0/1 unless otherwise noted. Guidelines and sentence length variables are capped at 470 months—the Commission’s assigned value for life sentences. Many variables are not reported in all years.

C. Overall Inequality (All Districts, All Years)

This section begins by examining whether one can fairly say the government focuses its financial crime enforcement efforts on “white-collar” crime. It suggests the answer is no. It shows that low-income and Black defendants are disproportionately represented while higher-income and White defendants are underrepresented in federal financial crime cases relative to the U.S. population. It shows that this overrepresentation is particularly stark for Black women, who are underrepresented in federal criminal cases as a whole but overrepresented in financial crime prosecutions.

The Commission data do not provide information about a person’s income or wealth, so Figure 1 uses three proxies for a defendant’s financial means: the level of formal education attained by the defendant, whether the defendant’s fines were waived by the court based on the defendant’s inability to pay them, and whether the defendant retained paid counsel. Appendix Table A.2 presents the same results in table form.

Figure 1. Proxies for Poverty in Federal Financial Crime Cases

Note: Educational attainment is only reported for defendants sentenced in fiscal years 1997 through 2019. Defense counsel type is only reported for defendants sentenced in fiscal years 1994 through 2003. Waived fines are reported for all years (1994 through 2019).

Figure 1 shows the averages for all federal financial crime defendants (dotted columns), for U.S. citizen financial crime defendants (solid columns), and for the U.S. adult population (striped columns). It reports the estimates separately for U.S. citizen-defendants because Census data, which is used to compute the averages across the U.S. adult population, chronically undercounts people who are not U.S. citizens.¹⁴⁰ Despite this undercounting, the averages for U.S. citizen-defendants are very similar to the averages among all federal defendants.

As Figure 1 shows, nearly 20% of financial crime defendants did not graduate high school, which is true of only around 10% of U.S. adults. Around 30% of the U.S. adult population has a college degree, but less than 20% of federal financial crime defendants have one. Around 85% of federal financial crime defendants have their fines waived by the court. Put another way, only around 15% of federal financial crime defendants can afford to pay their fines. The majority (around two-thirds) of federal financial crime defendants rely on appointed counsel. These averages suggest that defendants convicted of financial crimes are likely to have a lot less income and wealth than the average U.S. adult.

Figure 2 displays race-gender representation in federal financial crime cases (solid columns) and all federal criminal cases (striped columns) over the years 1994 to 2019. Appendix Table A.3 presents the same results in table form. The horizontal line at y = 1 demarcates the boundary for whether a group is over- or under-represented in federal cases relative to their share of the U.S. adult population.¹⁴¹

Figure 2 shows that, as many readers will already know, Black and Hispanic men are the most overrepresented groups in the federal criminal system (their striped columns extend the highest), while women who are not Black or Hispanic are the most underrepresented groups (their striped columns extend the lowest). Overall, there are five race-gender groups that are underrepresented relative to the adult population: women of all race and ethnicity groups and White men. Men who are not Black or Hispanic are prosecuted at rates closest to parity (their striped columns are the shortest), with White men slightly underrepresented and men who are another race slightly overrepresented.

For financial crimes, the pattern is different in a few notable ways. First, unlike in the entire federal defendant population, Black men and women are the most overrepresented groups in financial crime prosecutions, while White and Hispanic women are the most underrepresented groups. Black men are significantly more overrepresented in financial crime prosecutions than any other group (their solid column is much taller than any other solid column). Men who are not Black are also overrepresented in financial crime cases but to a much lesser extent than Black men.

Black women are overrepresented among financial crime defendants despite being underrepresented in the federal criminal defendant population. Women of all other race and ethnicity groups are underrepresented in financial crime prosecutions, just as they are in all federal prosecutions. These findings suggest that financial crime prosecutions are an important site of racial inequality in the federal criminal system and that this inequality uniquely burdens defendants who are Black.

Figure 2. Race-Gender Representation in Federal Prosecutions, 1994–2019

Note: The y-axis is scaled such that a group that is x times overrepresented will have the same size column as a group that is x times underrepresented. BM=Non-Hispanic Black Men; BW=Non-Hispanic Black Women; HM=Hispanic Men; HW=Hispanic Women; OM=All Other Men (including Alaska Native, American Indian, Asian, Native Hawaiian, and Other Pacific Islander Men); OW=All Other Women (including Alaska Native, American Indian, Asian, Native Hawaiian, and Other Pacific Islander Women); WM=Non-Hispanic White Men; WW=Non-Hispanic White Women.

D. Inequality in Financial Crime Prosecutions over Time

This section describes how the federal financial criminal caseload has changed over the past quarter century. It shows first that the annual number of financial crime prosecutions remained stable until 2015, when it began to decrease. Second, it shows that the caseload decline in 2015 did not coincide with any noticeable change in the education, gender, or race gaps that persist throughout the period. Third, it shows that since around 2008, Black defendants have been prosecuted at roughly three times the per capita rates that Hispanic, non-Hispanic White, and other defendants have been prosecuted for financial crimes. Beginning in 2008, defendants in all racial or ethnicity groups who are not Black were prosecuted at very similar per capita rates. Fourth, it shows that this race gap is larger but shrinking among female defendants and smaller but more stable among male defendants. Because most of the patterns I documented are stable over time, most of the figures that accompany this section are contained in the Appendix.

Before examining how inequality has changed over time, this section first considers how overall levels of financial crime prosecution have changed since the early 1990s. Appendix Figure A.1 plots the federal government’s criminal caseload for the three most-prosecuted types of crime: drug trafficking (dotted line); immigration (dashed line); and financial crime (solid line). As Figure A.1 reveals, the annual number of federal prosecutions of financial crime remained stable until it began to decline in 2015. On the other hand, financial crime as a share of all federal prosecutions has decreased over a longer period, but this is not due to a significant decrease in the number of financial crime cases; rather, it is a result of a steep rise in immigration-related prosecutions, which dilute financial crime’s share of all federal criminal cases.

It is possible that as the number of financial crime prosecutions decreased beginning in 2015, inequality in who is prosecuted for financial crimes also changed. Appendix Figure A.2 looks for changes in the average education levels of defendants prosecuted for financial crimes, while Figure 3 considers changes in the race and gender composition of the financial criminal defendant population over time. Figure A.2 studies defendants’ educational attainment because education proxies for a defendant’s income, which is not a variable that the Commission data reports.¹⁴²

Figure A.2 plots financial crime cases prosecuted against defendants who did not graduate high school, graduated high school but did not attend college, attended college but did not earn a bachelor’s degree, and earned a bachelor’s degree. Panel A, which plots the share of defendants in each category, shows that the educational composition of financial crime defendants remained largely stagnant over the 1997 to 2019 period.

Panel A suggests a small increase in the share of financial crime defendants who have attended or completed college and a small decrease among defendants who never attended any college over the same period. However, as Panel B reflects, these changes have not kept pace with the population, which has on average seen increased formal education over time. If anything, the education gap expanded over the period, as Panel B shows. Panel B plots the extent to which defendants in each educational group are over- or under-represented relative to the U.S. adult population. It shows that defendants who have not completed high school were prosecuted at higher rates in the late 2010s than in earlier parts of the period. Thus, Figure A.2 suggests that overall changes in the financial crime caseload over time did not benefit those with few resources; if anything, the opposite is true.

Financial crime also has a race and gender gap. As with nearly all types of crime, men are more likely to be prosecuted for financial crimes than women. Racial gaps in financial crime also persist among both male and female defendants. Figure 3 plots the per capita rates at which each race-gender group is prosecuted for financial crimes over the 1994–2019 period. To avoid cramming eight lines into one graph, Panel A plots the prosecution rates for female defendants and Panel B for male defendants. The panels are arranged side-by-side and scaled with the same y-axis so that readers can compare female and male defendants by looking across the panels. The y-axis measures the number of financial crime defendants in each race-gender group divided by the U.S. adult population of that race-gender group (then multiplied by 1000). Thus, a higher line indicates a higher rate of prosecution.

Figure 3. Financial Crime Cases by Race, 1994–2019
A. Female Defendants	B. Male Defendants

Note: Each line represents the number of financial crime cases brought against defendants in the race-gender group, multiplied by 1,000 and divided by the U.S. adult population of that race-gender group. Race-gender groups are labeled as in Figure 2.

Figure 3 shows several facts about race and gender inequality in federal financial crime prosecutions. First, financial crime has a persistent gender gap. Men are prosecuted for financial crimes at higher per capita rates than women. Second, Figure 3 shows that Black men and women are prosecuted for financial crimes at the highest rates. Since 2008, there does not appear to be a significant race gap among any other race groups for either female or male defendants. Instead, Black adults are uniquely susceptible to prosecution for financial crimes.

Third, the racial gaps appear to narrow over time for women but not men. For female defendants, Panel A shows that prosecution rates among racial groups compressed over the 1994 to 2019 period. The data bears this pattern out: Black women comprised 38% of female financial crime defendants in 1994 and 32% in 2019.¹⁴³ For male defendants, Panel B shows less compression. The data also bears this pattern out: Black men comprised 25% of male financial crime defendants in 1994 and 27% in 2019.¹⁴⁴ Over this period, Black men and Black women constituted between 5–7% of the U.S. adult population, so these changes cannot be attributed to significant changes in the composition of the underlying population.¹⁴⁵

E. Inequality in Financial Crime by Geography

The previous section showed that over the last three decades, financial crime cases have remained a significant portion of the federal criminal docket and that income, gender, and racial inequalities persist in these prosecutions. Among male and female defendants, Non-Hispanic Black people are prosecuted at roughly three times the per capita rate as all other defendants. People who did not complete high school are by far the most overrepresented group in financial crime cases, while those who have completed college are the only group that is significantly underrepresented.

But averages across the entire federal criminal system as presented in the previous sections obscure differences in how individual USAOs prosecute financial crime. For example, the previous sections showed that Black women and Black men are overrepresented in federal financial crime cases while White women are underrepresented, but one might wonder whether this is true in all federal districts in the United States. Variation over the entire country might reflect variation in underlying rates of financial crime, office priorities, or the individual attitudes of decisionmakers such as prosecutors and agents. This section measures and maps inequalities in financial crime prosecutions at the USAO level. Figure 4 begins by showing the intensity with which each USAO prosecutes financial crimes. Darker shading means a larger share of the district’s cases are financial crime cases.

Figure 4 shows that the districts that focus more heavily on fraud cases include large urban districts like the Central District of California (home to Los Angeles), the Northern District of Illinois (home to Chicago), and the Southern District of New York (home to Manhattan). In these USAOs, financial crime respectively constitutes 32.1%, 36.7% and 29.3% percent of all criminal cases. This finding is perhaps unsurprising because these districts encompass many major financial centers. The five districts that border Mexico have much less intense financial crime caseloads (less than 6% of all prosecutions in all five districts) because immigration cases dominate the federal criminal caseloads in those districts.¹⁴⁶ Figure 4 also shows that USAOs in Western states appear to prosecute financial crime less intensely than states in the Deep South¹⁴⁷ and the Great Lakes Region.¹⁴⁸

Figure 4. Financial Crime Prosecution Intensity (All Years)

Note: This figure maps the share of each district’s criminal cases that are financial crime cases. Each shade represents an equal interval in the distribution. Lightest shading means roughly 2–11% of cases in the district are financial crime cases; second-lightest shading means 11–19% of cases are financial crime cases; second-darkest shading means 19–28% of cases are financial crime cases; and darkest shading means 28–37% of cases are financial crime cases.

Figure A.3 shows that districts in the Deep South, Alaska, and Oklahoma prosecute women for financial crimes at among the highest rates in the United States. Figure A.3 plots the intensity with which each district prosecutes women for financial crimes relative to men. Darker shading means female defendants make up a larger share of that USAO’s financial crime caseload. There are eight districts in which women constitute more than forty percent of financial crime defendants: the Southern, Middle, and Northern Districts of Alabama; the District of Alaska; the Middle District of Georgia; the Middle and Western Districts of Louisiana; and the Northern District of Oklahoma. By contrast, women make up the smallest portion of fraud defendants in New England and southwestern states. There are ten districts in which women make up less than twenty-five percent of fraud defendants: the Southern District of California, the District of Connecticut, the District of Massachusetts, the District of Minnesota, the District of New Hampshire, the District of New Jersey, the Eastern and Southern Districts of New York, the Eastern District of Pennsylvania, and the District of Rhode Island.

Prosecuting women for financial crimes at higher rates in the Deep South, Alaska, and Oklahoma compared with other jurisdictions is likely to create racial inequality among female defendants because the Deep South states have among the largest Black populations in the United States.¹⁴⁹ Alaska and Oklahoma have among the largest Indigenous populations in the United States.

Figure 5 explores the geography of race and gender inequality in financial crime prosecutions. It depicts whether race-gender groups are over- or under-represented in financial crime prosecutions relative to their share of the U.S. adult population in each federal district. In Figure 5, districts filled in blue stripes mean the group is underrepresented (with darker shades of blue representing more underrepresentation). Districts filled in solid red mean the group is overrepresented (with darker shades of red representing more overrepresentation).

Panels A and B show that Black men are overrepresented in financial crime cases in every federal district, and Black women are overrepresented in all but six federal districts.¹⁵⁰ In contrast, Panel H shows that White women are underrepresented in financial crime cases in every federal district. White men are overrepresented in roughly half of all districts, but in all districts, it is clear their representation is relatively close to parity because all of the districts have pale shading. These findings demonstrate that the racial inequalities documented across the full United States are generated at least in part by inequalities within—not just between—USAOs.

As in Figure 5, Figure 6 explores the geography of income inequality in financial crime prosecutions. As throughout, the defendant’s level of formal education is used as a proxy for income because the Commission data does not report information about a defendant’s income or wealth. Also, like Figure 5, Figure 6 uses red solid- blue striped shading to indicate whether defendants are over- or under-represented relative to the U.S. adult population. Districts shaded in blue stripes mean the group is underrepresented (with darker shades of blue representing more underrepresentation). Districts shaded in solid red mean the group is overrepresented (with darker shades of red representing more overrepresentation). The shading in Figure 6 uses the same red/blue scale as Figure 5 so readers can compare.

Figure 5. Race-Gender Representation in Financial Crime Prosecutions
A. Cases Against Black Men	B. Cases Against Black Women

C. Cases Against Hispanic Men	D. Cases Against Hispanic Women


E. Cases Against Men of Another Race	F. Cases Against Women of Another Race

G. Cases Against White Men	H. Cases Against White Women

Note: This figure maps the over- and under-representation of each race-gender group in the district’s financial crime cases. Districts shaded in striped (solid) fills prosecute the race-gender group at lower (higher) rates than the district’s population. Darker shading indicates larger disparity.

Figure 6. Educational Representation in Financial Crime Prosecutions

A. Cases Against Defendants with a College Degree

B. Cases Against Defendants Without a High School Degree

Note: This figure maps the over- or under-representation of defendants in the district’s financial crime cases. Districts shaded in striped (solid) fill prosecute the education group at lower (higher) rates than the district’s population. Darker shading indicates larger disparity.

Figure 6 shows that defendants who have graduated from college—and are likely to be the wealthiest federal defendants—are underrepresented in financial crime prosecutions in every federal district in the United States, even those that prosecute the most complex and sophisticated financial crime (such as the Southern District of New York). In contrast, defendants who have not completed high school—and are likely to have the fewest resources—are overrepresented in nearly every district, although they are underrepresented in eleven districts.

The preceding discussion suggests that USAOs could significantly vary in the average severity of financial crimes they prosecute. Figure 7 investigates this theory and depicts the median loss associated with financial crime cases in each federal district. In other words, Figure 7 shows the severity of the average financial crime prosecution by each USAO. It shows significant variation in severity across USAOs.

Figure 7. Median Loss Amount in Financial Crime Prosecutions (All Years)

Note: This figure maps the median loss in financial crime cases by USAO. Each shade represents an equal interval. Lightest shading means the median loss amount in financial crime cases is between $7,519 and $44,323; second-lightest shading means the median loss is between $44,323 and $81,127; second-darkest shading means the median loss is between $81,127 and $117,931; and darkest shading means the median loss is between $117,931 and $154,735.

Figure 7 shows that the most serious financial crimes are prosecuted in the Northeast (including the Eastern and Southern Districts of New York, and the Districts of Connecticut, Massachusetts, and Rhode Island), as well as a few scattered districts that are home to major U.S. cities (the Southern District of California, the Southern District of Florida, the Northern District of Georgia, the Northern District of Illinois, and the District of Minnesota). The least serious financial crimes are prosecuted in Southern and Great Plains states.

III. EXPLAINING THE FINDINGS

Part II presented evidence of income, racial, and gender inequality in the prosecution of federal financial crimes. It showed that the federal prosecution of financial crime has a disparate impact, prosecuting low-income and Black people at higher rates than the rest of the U.S. adult population, while prosecuting college graduates and White people at lower rates than the rest of the adult population. Part II also showed that these inequality patterns have persisted since the 1990s and appear in every federal judicial district. This Part offers several potential explanations for the inequalities documented in Part II. It first examines differences in the reported offense conduct of financial crime defendants in different education, race, and gender groups. It shows that the defendant groups that are the most overrepresented are also prosecuted for, on average, the least serious financial crimes. It then describes how systemic incentives, formal law and policy, and individual biases could explain the Article’s findings. I do not attempt to definitively prove that any particular mechanism dominates. Instead, this Part is designed to present many possible explanations for the regressive nature of federal white-collar prosecution.

A. Charged Offense Conduct

As a threshold matter, this section examines whether the federal financial crime cases brought against defendants of different education, race, and gender groups systematically differ in reported offense conduct. The DOJ and FBI routinely state that they prioritize prosecuting serious and sophisticated financial crimes. It could be that the groups that are most overrepresented in financial crime prosecutions also commit on average the most serious financial criminal offenses, and that overrepresentation is thus consistent with the federal government carrying out its stated priorities. This section considers but rejects that hypothesis.

To perform this analysis, this section considers three variables that capture offense conduct: (1) the offense severity (which primarily corresponds with the amount of monetary loss in financial crime cases); (2) whether the case involved illegal drugs; and (3) the average amount of aggravation computed in the case. I define the amount of aggravation as the amount by which the defendant’s base offense level was increased or decreased at sentencing on account of their offense characteristics.¹⁵¹ The aggravation measure can therefore be a positive or negative number. Figure 8 presents averages for each of these measures of offense conduct by defendants’ educational attainment. As before, I use the defendant’s level of formal education as a proxy for income because the Commission data do not include information about defendants’ income or wealth.

Figure 8. Financial Crime Case Characteristics by Education Group

A. Median Loss Amount in Financial Crime Cases

B. Share of Financial Crime Cases Involving Drugs

C. Average Aggravation in Financial Crime Cases

Note: Average aggregation is the average difference between defendants’ base and final offense levels.

Figure 8 suggests that financial crime defendants who have attained more formal education are prosecuted for financial crimes that are more serious than the financial crimes prosecuted against defendants with less formal education. The median loss amount for defendants without a high school diploma is just $18,500, while the median loss amount for defendants with a college degree is $168,276. The amount of aggravation in the offense is also increasing in formal education, as Panel C shows. In contrast, Panel B shows that the presence of illegal drugs in financial crime cases is roughly equal across all education groups.

Figure 9 plots the same three variables by defendant race-gender group. Figure 9 demonstrates that Black men and women—who Part II showed are prosecuted for financial crimes at the highest rates—do not commit the most serious financial crimes. Cases involving female defendants also tend to be less severe than those against male defendants. Median loss amounts for female financial crime defendants are lower than for male financial crime defendants in all racial groups except Hispanic defendants, in which loss amounts are roughly equal between male and female defendants. In all racial groups, female financial crime defendants are less likely to have drugs involved in their cases. Finally, financial crime cases against women involve fewer aggravating characteristics.

In all measures, financial crime cases brought against White men appear to be the most serious. They involve by far the largest losses—the median loss amount for financial crime prosecutions of White men is $80,150; for Black women and women who are not White, Hispanic, or Black, the amount is $29,520 and $29,416, respectively. Financial crime cases against White men are also the most likely to involve drugs and the largest average aggravation.

Given that differences in offense conduct do not appear to justify the inequalities documented in Part II, the remaining sections explore alternative explanations for the findings. The data do not allow me to disentangle whether the inequalities documented in this Article are created by intentional discrimination, subconscious bias, are a byproduct of systemic incentives that shape prosecutorial and investigative decisions about which cases to prioritize, or are some combination of all these (or other) reasons. Sections III.B, III.C, and III.D consider many explanations for the findings.

Figure 9. Financial Crime Case Characteristics by Race-Gender Group

A. Median Loss Amount in Financial Crime Case

B. Share of Financial Crime Cases Involving Drugs

C. Average Aggravation in Financial Crime Cases

Note: Race-gender groups are labeled as listed in Figure 2. Average aggregation is the average difference between defendants’ base and final offense levels.

B. Systemic and Structural Explanations

In many areas of law, the government struggles to aggressively prosecute or pursue legal claims against sophisticated lawbreakers. This section focuses on systemic explanations for why federal prosecutors might focus on lower-level financial crime cases. It argues that complicated financial crimes are difficult to detect, hard to investigate, and burdensome to prove. As Jesse Eisinger put it, “Embezzlement is as easy to understand as purse snatching. But securities manipulation is a more abstract concept.”¹⁵² The workplace realities that prosecutors and investigators confront could create the inequalities documented in Part II.

The inequalities in financial crime prosecutions might reflect structural realities that have been documented in many other settings. In an article examining how the federal government prosecutes drug crime, for example, Lauren Ouziel lays bare the “disconnect between [federal criminal] law’s ambition and fruition.”¹⁵³ Ouziel shows that in federal drug prosecutions, the substantive criminal law is explicitly designed to target the most serious defendants—those whose crimes involve large quantities of illegal drugs and acts of physical violence, and those who have significant prior criminal records.¹⁵⁴ But despite this ambition, the federal government nonetheless prosecutes many defendants who do not fall into these categories.¹⁵⁵ Ouziel argues that the pressure and incentives that federal prosecutors face in their work—among other things—contribute to this ambition/fruition divide.¹⁵⁶

Examples of the ambition/fruition divide are not limited to the criminal setting. In the context of environmental enforcement, Nathan Atkinson shows that the Environmental Protection Agency (“EPA”) imposes fees on corporate pollution that are roughly one-fifth the size necessary to make polluting unprofitable ex ante.¹⁵⁷ In another example, ProPublica journalists Paul Kiel and Jesse Eisinger showed a perhaps illogical disparity in the Internal Revenue Service (“IRS”) enforcement efforts: taxpayers who receive the Earned Income Tax Credit (“EITC”)—mostly low-income wage earners—are audited at higher rates than households with much larger earnings.¹⁵⁸ Along the same lines, a county-level analysis by ProPublica’s Paul Kiel and Hannah Fresques found that America’s poorest counties are our most audited.¹⁵⁹ Yet recent research shows that despite the lower costs to carry them out, IRS audits of low-income people yield less net revenue than audits of wealthy taxpayers at the top of the income distribution.¹⁶⁰ IRS’s choice to focus much of its enforcement activity on EITC filers also contributes to racial inequality in audits.¹⁶¹

Like the drug crime and IRS contexts, prosecutors and law enforcement agents working on financial crimes face incentives and constraints that likely lead them to focus their efforts on straightforward, uncomplicated, and winnable prosecutions.¹⁶² Of course, what kinds of cases and defendants an agent or prosecutor thinks are “winnable” requires judgments that will be filtered through and reinforced by the agent or prosecutor’s individual biases, as described in Section III.D.

How do prosecutors decide which potential cases are winnable? They likely consider the evidentiary strength of their case, the resources necessary to investigate and prosecute the case, and how a jury is likely to view the case.¹⁶³ These assessments are likely shaped by biases, as described in the next section.

All these factors—the strength of the evidence, the resources necessary to bring the case, and how a jury is likely to view the case—militate toward prosecuting low-level cases. As described in Sections I.B and III.C, a financial crime prosecution typically requires a prosecutor to prove beyond a reasonable doubt that the defendant intended to defraud someone. In simplistic cases, such as when an employee uses a company credit card to buy personal items, the evidence of fraud will often be straightforward and easily attainable: typically, the victim (the employer) will have records showing unauthorized purchases and can turn those records over to prosecutors.

In contrast, the task of building a case will be much more difficult in frauds for which there is no victim who can provide evidence of the fraud, such as when a fraud is carried out in a large corporate organization with many diffuse victims. As Miriam Baer describes, “[l]ife within corporate settings is remarkably compartmentalized and siloed. Information and responsibility fractures among multiple units and departments, allowing criminal targets to claim that the left hand did not know what the right hand was doing, or at very least, that an intent to harm or deceive was absent.”¹⁶⁴

In such cases, the government will typically need to rely on a whistleblower for evidence and may have a hard time proving that any particular person involved had the requisite intent to defraud. Whistleblowers can be hard to recruit because, although they are occasionally rewarded for bringing wrongdoing to light, more often they are fired and struggle to find a new job in their industry.¹⁶⁵ This is precisely what happened to Alayne Fleischmann, the whistleblower in Case D.¹⁶⁶

Second, building and bringing complex cases takes a lot of work and resources. It uses up prosecutors’ and investigators’ time. The more witnesses there are to interview, the more documents there are to review, and the more expertise is required to understand the fraud—all these tasks require a lot of resources. A straightforward case can move forward more quickly and easily.

Relatedly, the resource differences on each side of a criminal case can strain the government’s ability to prosecute. Charging a person who will hire a large law firm to represent them in defense will create a different resource dynamic than prosecuting a person who will rely on appointed counsel.¹⁶⁷ These resource differences could easily lead the federal government to disproportionately prosecute indigent defendants.

C. Formal Law and Policy

The substantive laws and rules that define financial crimes and govern how they are prosecuted and sentenced favor sophisticated criminal lawbreakers in many ways. We see examples of this phenomenon in other contexts, too. For example, by far the largest source of theft in the United States is wage theft, which some researchers estimate accounts for more than $15 billion stolen every year.¹⁶⁸ An employer commits wage theft when they do not pay an employee wages to which the employee is legally entitled, such as by paying less than the minimum wage, not paying required overtime wages, or asking employees to work “off the clock” before or after their shifts.¹⁶⁹ But wage theft is almost never prosecuted.¹⁷⁰ The primary way that stolen wages are recovered is through civil actions brought by the U.S. Department of Labor’s Wage and Hour Division, state departments of labor, state attorneys general, and civil class actions. In contrast, larceny and auto theft each steal around $5 billion per year and robbery steals around $380 million.¹⁷¹ Unlike wage theft, these crimes are frequently prosecuted.¹⁷²

There are myriad ways that federal criminal law and formal policy similarly benefit sophisticated people who commit higher-value, more complex crimes. Here, I focus on two: the mens rea requirements of fraud statutes, and the way restitution is calculated and prioritized.

1. Mens Rea Elements

As described in Section I.B, most financial crimes contain mens rea elements that require the government to prove the defendant’s intent to defraud. In a relatively straightforward fraud—such as Cases A, B, and C described in Section I.C—it is easy to see how a jury could view the defendants’ conduct and conclude that they intentionally deceived their victims. But in a complex fraud case involving many parties, such as Case D, proving a deceitful intent or scheme on the part of any particular participant could be very difficult for prosecutors.¹⁷³ As a result, complicated and sophisticated financial crimes—which Table 1 shows are more likely to be perpetrated by people who are high-income, male, and White—are likely much more difficult to prosecute.

2. Restitution Calculations

The rules around restitution calculations also benefit defendants who commit complex crimes. As described in Section I.B, federal law (like the law in all states) requires courts to order restitution in any case “in which an identifiable victim or victims has suffered a physical injury or pecuniary loss.”¹⁷⁴

One might imagine this means people who commit more complex, higher-value crimes will have to pay more restitution and could therefore be more desirable to prosecute from a prosecutor’s perspective. But this is not the case because the restitution statute contains two exceptions. First, it does not require restitution in cases in which “the number of identifiable victims is so large as to make restitution impracticable.”¹⁷⁵ Second, it does not require restitution in cases in which “determining complex issues of fact related to the cause or amount of the victim’s losses would complicate or prolong the sentencing process to a degree that the need to provide restitution to any victim is outweighed by the burden on the sentencing process.”¹⁷⁶ In other words, financial crimes that are more complex, for which losses are harder to calculate, and for which there are more victims are much less likely to involve restitution. Thus, even if JPMorgan Chase or any of its employees had been convicted of a crime in connection with the financial crisis, they would have had a strong argument that the statute did not require them to pay restitution. In contrast, the defendants in Cases B and C were ordered to pay restitution because their crimes were not complex enough to trigger a statutory exception.

3. Restitution Policy

Notwithstanding the statutory exceptions, federal prosecutors and judges tend to be highly committed to ensuring as much restitution as possible for victims of financial crimes. For example, the federal sentencing statute instructs judges to consider “the need to provide restitution to any victims of the offense” when sentencing defendants.¹⁷⁷ The Justice Manual tells prosecutors that when “determining whether it would be appropriate to enter into a plea agreement,” they should consider (among other factors) “[t]he interests of the victim, including any effect upon the victim’s right to restitution.”¹⁷⁸ Similarly, the Manual instructs prosecutors to “take[] into account the need for the defendant to provide restitution to any victims of the offense” when making sentencing recommendations.¹⁷⁹ Assistant Attorney General for the Criminal Division Kenneth A. Polite, Jr. described federal white-collar efforts in a recent speech, telling the audience, “[c]onsidering victims must be at the center of our white-collar cases. . . . Though we cannot always recover every cent, we deploy all tools at our disposal to restrain assets, obtain restitution, and when possible, repatriate assets for victims.”¹⁸⁰

One consequence of prosecutors’ and judges’ desire to provide restitution to victims of financial crimes is that defendants with more resources can argue (either as a pitch to prosecutors before charging or to a judge at sentencing) that they should not be prosecuted or incarcerated because a criminal case or prison sentence will interrupt their ability to earn income to pay toward restitution. For example, a financial advisor convicted of fraud in the District of Massachusetts made this argument in his sentencing memo, writing:

If incarcerated, [the defendant] will not be able to contribute to restitution; he will lose his job and have to start all over upon his release. Whereas in his current position, where he has advanced to a management position in a relatively short amount of time, he will be able to contribute immediately toward a restitution award.¹⁸¹

Indeed, federal courts routinely justify low or probation-only sentences for financial crime defendants by stating their desire to allow the defendant to work and provide restitution.¹⁸² In one of the Yale Studies that surveyed federal district court judges about how they sentence white-collar defendants, one judge was asked about his decision not to impose a prison sentence on a person convicted of not reporting large amounts of income. The interviewer asked the judge, “[Y]ou must have considered sending him to a term in prison. What made you decide that that wasn’t appropriate in this case?” The judge responded,

Well, the restitution. There is half a million dollars back in the coffers that we wouldn’t have got if I had sent him to prison. He would have served his term, and there would have been no way of getting it, and eventually some day or other he would have gotten out of the country somehow or other and gotten that money. That was it.¹⁸³

A defendant with fewer resources or without stable employment will have a harder time making this argument to a prosecutor, which could explain why wealthy defendants are less likely to be prosecuted for financial crimes.¹⁸⁴

D. Bias

As described in Section I.B, federal investigative agencies and DOJ have nearly absolute discretion in deciding which cases to investigate and prosecute. Although individual agents and federal prosecutors might be constrained formally and informally by office policies and norms, there are almost no formal legal constraints on how enforcement agents decide which cases to investigate and how prosecutors decide which cases to pursue.¹⁸⁵ Wide discretion often allows decisionmakers to make discriminatory decisions, either consciously or subconsciously.

1. Stereotypes About Dishonesty

Deceit is the central characteristic of financial crime. Social psychologists have documented consistent stereotypes that associate honesty with social class, race, and gender in the United States. For example, literature in psychology finds that participants often view people of low socioeconomic status as lazy, incompetent, and prone to substance abuse, while viewing people of high socioeconomic status as more competent and intelligent.¹⁸⁶

Stereotypes characterizing women—and, in particular, women of color—as dishonest are pervasive in the United States, which might explain why Black women are overrepresented among financial crime defendants despite being underrepresented in federal prosecutions overall. Women have long been viewed as dishonest in criminal cases,¹⁸⁷ and Marilyn Yarbrough and Crystal Bennett describe “a hierarchy when credibility issues arise in the courts. It is not only a simple hierarchy of men over women, but it is one where White women are found to be more credible than African American women.”¹⁸⁸ And as Chan Tov McNamarah explains, “[S]kepticism of Black credibility is part of a larger, historically created space in which those who are deemed rational, reliable, and worthy of belief are White and male.”¹⁸⁹ These kinds of prejudices could affect how agents decide which people to investigate and prosecutors decide which cases to bring.

2. In-Group Favoritism

Bennett Capers argues, “[T]o understand mass incarceration, we must not only understand overcriminalization and overenforcement in minority communities. We must also understand the role played by under-enforcement, and privilege, in nonminority communities.”¹⁹⁰ Consciously or not, prosecutors and agents might be less willing to prosecute people with whom they have more in common, a phenomenon often referred to as “in-group favoritism.”

In-group favoritism occurs when a decision-maker gives preferential treatment to those who share a salient trait with the decision-maker, such as by being a member of their gender, racial, ethnic, or religious group.¹⁹¹ For many years, there was a growing consensus that the majority of discrimination in the United States takes the form of in-group favoritism,¹⁹² although in recent years overt racism and sexism have grown increasingly prevalent.¹⁹³

In-group favoritism is well-documented in the criminal system. In prior work, I showed that federal prosecutors exhibit gender-based in-group favoritism, treating defendants of their own gender relatively more leniently than other-gender defendants.¹⁹⁴ New research suggests that firms risking prosecution appear to strategically leverage in-group favoritism to help improve negotiations with federal prosecutors.¹⁹⁵ Other scholars have previously documented in-group favoritism among other actors in criminal legal systems, including judges¹⁹⁶ and police officers.¹⁹⁷ As an important caveat, however, some research finds evidence of a phenomenon called the black-sheep effect, in which people punish in-group members more harshly than out-group members for bad behavior.¹⁹⁸

Perhaps more than in other types of federal cases (most of which involve immigration, drugs, or firearm possession), prosecutors and federal agents might feel affinity for financial crime defendants who work as business professionals due to cultural or social proximity. This hypothesis is not new. Over 40 years ago, one of the Yale Studies described in Section I.B.2 surveyed federal district judges and found sentiment of in-group favoritism when judges were asked about sentencing white-collar defendants. For example, one federal judge described his views on sentencing white-collar defendants to prison this way:

I think the first sentence to a prison term for a person who up to now has lived and has surrounded himself with a family, that lives in terms of great respectability and community respect and so on, whether one likes to say this or not I think a term of imprisonment for such a person is probably a harsher, more painful sanction than it is for someone who grows up somewhere where people are always in and out of prison. There may be something racist about saying that, but I am saying what I think is true or perhaps needs to be laid out on the table and faced.¹⁹⁹

The authors believe the judge’s previous comment is the result of increased empathy toward wealthy and professional class white-collar defendants.²⁰⁰ Indeed, in-group favoritism often takes the form of empathy toward in-group members, and, in experimental settings, people are often more likely to feel empathy in observing the pain of an in-group member compared to an out-group member.²⁰¹ It is plausible that prosecutors and FBI agents are more empathetic about the harms of federal prosecution when it comes to potential defendants with similar levels of formal education and wealth.

CONCLUSION

This Article has shown that, contrary to popular wisdom, financial crime is frequently prosecuted in the United States. Part II showed that federal financial crimes are prosecuted in ways that replicate inequalities that exist throughout American criminal law. Black men and women are more likely to be prosecuted for financial crimes than any other racial and gender group. Unlike the traditional view of white-collar crime, which posits that it is a form of crime largely perpetuated by economic elites, the findings also show that federal financial crime defendants are likely to have fewer resources than most U.S. adults.

Part III offered many explanations for these findings. It argued that systemic incentives, formal law and policy, and individual biases could all drive inequality. It also showed that the overrepresentation of Black and low-income defendants does not appear to be because these defendants commit the most egregious forms of financial crime (in fact, the opposite is true).

The inequalities documented in this paper are concerning because they seem to be overlooked. The intense focus on elite white-collar criminals—by the media, the academy, and the federal government itself—seems to at best not understand the realities of the system in which they are operating. This Article hopes to address this mistake.

APPENDIX

Figure A.1. Federal Criminal Cases: Three Most Common Offense Types, 1994–2019

Note: This figure plots the number of cases sentenced each fiscal year between 1994 and 2019 for the three most commonly prosecuted types of federal crime: drug trafficking and possession, immigration, and financial crime.

Figure A.2. Educational Attainment in Federal Financial Crime Cases Over Time
A. Educational Attainment in Federal Financial Crime Cases

B. Educational Attainment Representation in Federal Financial Crime Cases

Note: For each year, the “Representation Gap” in panel B is computed as the share of financial crime defendants in the educational group divided by the share of the U.S. adult population between the ages of 25 and 54 in that educational group.
Figure A.3. Gender Inequality in Financial Crime Prosecutions (All Years)

Note: This figure maps the share of each district’s financial crime cases that are prosecuted against women. Each shade represents an equal interval in the distribution. Lightest shading means roughly 15–22% of financial crime defendants in the district are women; second-lightest shading means 22–29% of financial crime defendants are women; second-darkest shading means 29–36% of financial crime defendants are women; and darkest shading means 36–43% of financial crime defendants are women.

Table A.1. Victim Coding: Most Prosecuted Financial Crimes
Crime (Short Description)	Statute	Share of Cases	Victim
Conspiracy or Defrauding the United States	18 U.S.C. § 371	0.185	U
Embezzlement or Theft of Public Money	18 U.S.C. § 641	0.079	G
Attempt or Conspiracy to §§ 1341‑48	18 U.S.C. § 1349	0.074	P
Bank fraud	18 U.S.C. § 1344	0.073	P
Wire fraud	18 U.S.C. § 1343	0.072	P
Mail fraud	18 U.S.C. § 1341	0.065	P
Tax Fraud	26 U.S.C. § 7201	0.053	G
False Statements to Federal Officials	18 U.S.C. § 1001	0.050	N
Counterfeiting	18 U.S.C. § 472	0.046	P
Credit Card Fraud	18 U.S.C. § 1029	0.046	P
Identity Theft	18 U.S.C. § 1028	0.044	U
Mail Theft	18 U.S.C. § 1708	0.031	G
Accessory to a Crime	18 U.S.C. § 2	0.027	U
Social Security Fraud	42 U.S.C. § 408	0.021	G
Embezzlement by Bank Employee	18 U.S.C. § 656	0.015	P
Healthcare Fraud	18 U.S.C. § 1347	0.015	U
Conspiracy to Defraud the Government	18 U.S.C. § 286	0.013	G
Note: This table reports how victim status was coded for the most prosecuted federal financial crimes. G=government victim; N=no victim; P=private victim; U=unknown victim. The table is restricted to crimes constituting at least one percent of charged cases. Many additional types of financial crimes were also coded, and a complete crosswalk is available from the author by request.

Table A.2. Proxies for Poverty in Federal Fraud Prosecutions
	% of Financial Crime Defs (All)	% of Financial Crime Defs (Citizens)	% of U.S. Adult Pop (if applicable)
Less than HS	18.89	16.78	11.09
High School Only	31.49	31.59	29.43
Some College	31.02	32.24	27.42
College Graduate	18.60	19.40	32.06
Fines Waived	85.89	89.04	–
Retained Counsel	33.73	33.63	–
Observations	276,210	161,552
Note: Computations are for federal defendants sentenced under the U.S. Sentencing Guidelines for financial crimes in fiscal years 1994–2019. U.S. adult population averages computed over the years 1994–2019.

Table A.3. Race-Gender Representation in Federal Fraud Prosecutions
	% of Financial Crime Defs	% of All Defs	% of U.S. Adult Pop
Black Men	18.62	19.51	5.55
Hispanic Men	10.86	40.37	7.11
Another Race Men	4.69	3.76	2.93
White Men	36.06	22.82	32.89
All Men	70.23	86.47	48.47
Black Women	10.70	3.34	6.41
Hispanic Women	3.85	4.26	6.97
Another Race Women	2.08	0.92	3.29
White Women	13.13	5.01	34.86
All Women	29.77	13.53	51.53
Observations	276,210	1,667,763
Note: Computations are for federal defendants sentenced under the U.S. Sentencing Guidelines in fiscal years 1994–2019. U.S. adult population averages computed over the years 1994–2019.

97 S. Cal. L. Rev. 299

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Stephanie Holmes Didwania*

* Associate Professor of Law, Northwestern Pritzker School of Law. I am grateful to Joshua Braver, Samuel Buell, Franciska Coleman, Brandon Garrett, Michael Gentithes, Ben Grunwald, Andrew Hammond, Paul Heaton, Carissa Hessick, Christine Jolls, Kay Levine, James Lindgren, Yair Listokin, Yaron Nili, Lauren Ouziel, Maria Ponomarenko, John Rappaport, Megan Stevenson, Neel Sukhatme, Kegon Teng Kok Tan, Nina Varsava, Lisa Washington, Ron Wright, as well as participants at the 2022 CrimFest Conference, the 2022 Chicagoland Junior Scholars Conference, the 2022 Empirical Criminal Law Roundtable, the 2023 Annual Meeting of the American Law and Economics Association, the 2023 Conference on Empirical Legal Studies, the 2023 Harvard/Stanford/Yale Junior Faculty Forum, the Larry E. Ribstein Law & Economics Workshop at George Mason University Antonin Scalia Law School, the Soshnick Colloquium on Law and Economics at Northwestern Pritzker School of Law, and the University of Wisconsin-Madison La Follette School of Public Affairs Seminar for thoughtful comments on this work. Thomas Gordon and Matthew Marcin provided excellent research assistance. Finally, I thank the fantastic student editors of the Southern California Law Review for their meticulous and insightful editorial assistance.

Regressive White-Collar Crime

Stephanie Holmes Didwania*

Fraud is one of the most prosecuted crimes in the United States, yet scholarly and journalistic discourse about fraud and

The Discriminatory Religion Clauses

Wayne Batchis*

The Supreme Court’s decision in Carson v. Makin is the third in a trilogy of cases dramatically upending the meaning

Auditor Independence: Moving Toward Harmonization or Simplification?

Nikita Patel*

INTRODUCTION Auditor independence has been a priority for the Securities and Exchange Commission (“SEC”) under the leadership of both the

Miss-Stake by IRS: Proof-of-Stake’s Underinclusive Regulatory Guidance

Jack H. Duncan*

Death and taxes are the two certainties of life, and for some, the former may be more conceptually pleasant than

The Double Jeopardy Clause and Successive Prosecutions by Separate Sovereigns for the Same Act

October 2023February 2024David R. Dow

Under the so-called dual sovereignty doctrine (“DSD”), the Fifth Amendment’s Double Jeopardy Clause (“DJC”) is not implicated by successive prosecutions brought by separate sovereigns against the same defendant for the same act. For example, if a defendant is prosecuted first by the federal government for a certain crime, that defendant’s right not “to be twice put in jeopardy of life or limb”¹ for the same offence does not protect him against a subsequent prosecution by a state government for a crime involving the same conduct. As the Court put it in the recent case of Gamble v. United States,² “a crime under one sovereign’s laws is not ‘the same offence’ as a crime under the laws of another sovereign.”³

I argue in this Article that this DSD errs in two respects, one of which has drawn a bit of attention, and one of which has gone entirely unnoticed in the cases and academic literature. First, as suggested by Justices Ginsburg and Gorsuch in their separate Gamble dissents,⁴ and as I elaborate, the DSD rests on a mistaken originalist view of how successive prosecutions by separate sovereigns were regarded at common law; consequently, the inference as to how the eighteenth-century English doctrine applies to the United States, which rests on a concept of divided sovereignty alien to the common law, is fundamentally flawed.⁵

Second, the current and longstanding view of the DJC assesses whether that Clause is implicated by focusing on whether the same offense (or conduct) forms the basis for successive prosecutions by separate sovereigns. I offer an entirely different methodology that does not depend (as does this orthodox view) on an unsound originalist analysis.⁶ Rather than focusing on what a defendant did or how a sovereign has defined an offense, the better approach to determining whether successive prosecutions by separate sovereigns violate the DJC is to focus on what the jury found. The methodology I propose hones in on the elements of the crime with which a criminal defendant is charged in the initial prosecution because the outcome of that trial will turn on the factfinder’s evaluation of those elements. To my knowledge, nobody has previously proposed this approach to analyzing double jeopardy challenges to successive prosecutions brought by separate sovereigns.

My starting point is the Supreme Court’s recent decision in Gamble, which I summarize in Part I. Next, in Part II, I identify what I refer to as the twin errors that animate the Gamble holding, one entirely historical, and the other primarily analytical. In Part III, I propose a new methodology for examining whether successive prosecutions violate the DJC; I refer to this methodology as an “elements-based approach.” In Part IV, I compare the analytical method outlined in Part III with Gamble itself and illustrate how Gamble would have been decided using an elements-based approach. In Part V, I turn to the principles of issue preclusion and full faith and credit and argue that an elements-based approach to double jeopardy analysis is symmetrical to a similar inquiry in the civil domain. Finally, I conclude by pointing to the DJC-DSD cases the courts have adjudicated over the past two decades, and I ask how consequential the modification I sketch would be on criminal defendants.

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Introduction

Homelessness Compared and Explained

A.A Preliminary Note on Method

B. Homelessness Compared

C. The Social Safety Net

D. Public Opinion and Ideology

E. Race and Homelessness

F. America’s Turn to Criminalization

Homelessness and the Law

A. Law Prior to Grants Pass

B. City of Grants Pass Heads to the Supreme Court

C. The Supreme Court’s Ruling

D. What Should the Court Have Done?

E. A Change in Ideology Must Now Precede a Change in Law

Conclusion

Appendix

98 S. Cal. L. Rev. 761

Introduction

I. The Placebo of Punishment Theory

A. The Placebo Methodology

B. The Placebo Effect

II. Mass Incarceration as Placebo

A. Research and Development

B. Treatment Efficacy

C. Placebo Responses

III. Socio-Medical Ethics and Justifications

A. Placebos as Harm

B. Deception Versus Consent

C. Experimentation Ethics

D. Placebo Economics

IV. Beyond Punishment and Placebos

A. Beyond Punishment

B. Beyond Placebos

Conclusion

98 S. Cal. L. Rev. 513

Introduction

I. Decriminalizing Condemnable Conduct

A. Non-Prosecution Policies Rejecting a Legislative Criminalization Decision

B. Non-Prosecution of Selected Political or Ideological Groups

C. Legislative Decriminalization

D. If Decriminalizing Is Done by a Duly Elected Official or by the Voters Themselves, How Could It Conflict with Community Views? The Messiness of Democracy in Action

II. Decriminalization Motivations

A. The Anti-Criminal Justice Motivation: Rejecting the Importance of Doing Justice in Favor of a Medical, Social Services, or Mental Health Response to Crime

B. The Social Justice Motivation: Using Decriminalization to Reduce Sanctions Against Groups Seen as Oppressed

C.The Moral Superiority Motivation: Believing It Appropriate to Substitute One’s Own (Superior) Criminalization Judgments for Those of the Community

D.The Local Superiority Motivation: Believing It Appropriate to Substitute Local Criminalization Judgments for Those of the Larger Constitutionally Empowered Jurisdiction

III. The Societal Costs of Decriminalizing Condemnable Conduct: Miscalculating the Balance of Societal Interests

A.The Immediate Societal Cost of Reduced Deterrence

B.The Immediate Societal Cost of Reduced Ability to Incapacitate Repeat Offenders

C.The Long-Term Societal Cost of Reducing Criminal Law’s “Moral Credibility”

Ordinary People Have Strong and Nuanced Shared Intuitions of Justice Based on Desert, Which They Believe the Criminal Justice System Should Uphold

When Community Members See the Criminal Law Regularly Deviating from Their Shared Intuitions of Justice, the Moral Credibility of the Law Declines

As the Moral Credibility of the Law Declines, Its Crime-Control Effectiveness Also Declines

D.The Long-Term Societal Cost of Reducing the Criminal Justice System’s “Legitimacy”

E.Societal Costs of Increased Crime Are Disproportionately Borne by Vulnerable Minorities

F.Balancing Societal Costs and Benefits in Decriminalizing Criminally Condemnable Conduct

IV. Equal Application of these Principles to the Reverse Situations: Demanding Broader Defenses and Mitigations and the Decriminalization of Conduct Not Seen as Condemnable by the Community

A.Enlarging Defenses and Mitigations to Match Community Views

B.The Proper Limits of Exculpation: Rejecting a “Rotten Social Background” Defense

C.The Need to Decriminalize Conduct That the Community No Longer Sees as Criminally Condemnable

Conclusion

98 S. Cal. L. Rev. 585

INTRODUCTION

A. Abortion Restrictions Intensify Police Presence into Health Care

B. Ubiquitous Police Involvement in Health Care

1. Police Mistrust Is at Record Highs

2. Structural Racism in Policing

I. MEDICAL MISTRUST IS A SOCIAL DETERMINANT OF HEALTH

A. The Physician-Patient Relationship Is Suffering

B. Medical Mistrust Hurts Health

1. Medicine’s History of Injustice

2. To Repair Medical Mistrust, Law Enforcement Must Be Walled Off from Medical Spaces and Data

II. HOW POLICE HAVE EASY ACCESS TO MEDICAL DATA AND SPACES

A. Cooperation by Health Care

B. Permissive State Laws

C. HIPAA Exceptions

III. THE GUN AND THE STETHOSCOPE: TWO VERY DIFFERENT CULTURES

A. Different Self-Regulation Norms

B. Different Privacy Norms

1. Police Search Clinical Laboratories and Biobanks