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This Article empirically examines an issue central to judicial and scholarly debate about civil rights damages actions: whether law enforcement officials are financially responsible for settlements and judgments in police misconduct cases. The Supreme Court has long assumed that law enforcement officers must personally satisfy settlements and judgments, and has limited individual and government liability in civil rights damages actions—through qualified immunity doctrine, municipal liability standards, and limitations on punitive damages—based in part on this assumption. Scholars disagree about the prevalence of indemnification: Some believe officers almost always satisfy settlements and judgments against them, and others contend indemnification is not a certainty. In this Article, I report the findings of a national study of police indemnification. Through public records requests, interviews, and other sources, I have collected information about indemnification practices in forty-four of the largest law enforcement agencies across the country, and in thirty-seven small and mid-sized agencies. My study reveals that police officers are virtually always indemnified: During the study period, governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement. Law enforcement officers in my study never satisfied a punitive damages award entered against them and almost never contributed anything to settlements or judgments—even when indemnification was prohibited by law or policy, and even when officers were disciplined, terminated, or prosecuted for their conduct. After describing my findings, this Article considers the implications of widespread indemnification for qualified immunity, municipal liability, and punitive damages doctrines; civil rights litigation practice; and the deterrence and compensation goals of 42 U.S.C. § 1983.

Madison Lecture

This lecture is titled Our Broken Death Penalty. But the title is misleading, for it suggests that our death penalty might, at some earlier time, have been something other than broken. It has always been broken. And, as you will hear tonight, it cannot be repaired.

The Federal Sentencing Guidelines are riddled with policy oversights. In United States v. Kimbrough, the Supreme Court permitted district courts to vary from the Guidelines based on categorical policy disagreements. Yet, although district courts often vary from the Guidelines for individualized reasons, the policy variance power has been underutilized. This Note provides a case study of the history of one obscure Guideline, section 2M5.1, as applied to one particular type of case, a nonmilitary-related embargo violation. The case study exposes the United States Sentencing Commission’s systemic oversights in the history of creating Guideline section 2M5.1 and demonstrates how lawyers and judges can rely on that history on a case-by-case basis to expose categorical problems with Guidelines policy. Employing such a categorical policy approach to supplement an individualized approach promotes fairness, transparency, and feedback for future refinement of the Guidelines.

Stark racial disparities define America’s relationship with the death penalty. Though commentators have scrutinized a range of possible causes for this uneven racial distribution of death sentences, no convincing evidence suggests that any one of these factors consistently accounts for the unjustified racial disparities at play in the administration of capital punishment. We propose that a unifying current running through each of these partial plausible explanations is the notion that the human mind may unwittingly inject bias into the seemingly neutral concepts and processes of death penalty administration.

To test the effects of implicit bias on the death penalty, we conducted a study on 445 jury-eligible citizens in six leading death penalty states. We found that jury-eligible citizens harbored two different kinds of the implicit racial biases we tested: implicit racial stereotypes about Blacks and Whites generally, as well as implicit associations between race and the value of life. We also found that death-qualified jurors—those who expressed a willingness to consider imposing both a life sentence and a death sentence—harbored stronger implicit and self-reported (explicit) racial biases than excluded jurors. The results of the study underscore the potentially powerful role of implicit bias and suggest that racial disparities in the modern death penalty could be linked to the very concepts entrusted to maintain the continued constitutionality of capital punishment: its retributive core, its empowerment of juries to express the cultural consensus of local communities, and the modern regulatory measures that promised to eliminate arbitrary death sentencing.

In the wake of the Supreme Court’s 2009 decision in Arizona v. Gant, lower courts continue to debate whether Gant represents an overhaul of the search incident to arrest doctrine or is instead a minor tweak. This Note argues that the answer lies somewhere in the middle. It proposes that courts conduct a more searching inquiry into whether an arrestee has a reasonable possibility of access to the area searched at the time of the search, rather than apply the more lenient standard that some courts have adopted. This middle ground is more faithful to the policy considerations underpinning the search incident to arrest doctrine, while additionally providing the proper balance between officer safety and defendants’ rights.

Of all the agencies of executive government, those that police—that employ force and engage in surveillance—are the most threatening to the liberties of the American people. Yet, they are the least regulated. Two core requisites of American constitutionalism are democratic accountability and adherence to the rule of law. Democratic accountability ensures that policy choices are vetted in the public arena and have popular support; the rule of law requires that those choices be constitutional as well. Legislative enactments governing policing are few and far between. Although police departments have internal rules, these rules are rarely made public or publicly debated. When it comes to regulating policing, we rely primarily on ex post judicial review, which at best ensures policing practices are constitutional (though it often fails on this score), and does nothing to assure democratic accountability or sound policymaking.

This Article argues that it is fundamentally unacceptable for policing to remain aloof from the ordinary processes of democratic governance. All police practices—such as use of drones or other surveillance equipment; SWAT, Tasers, and other means of force; checkpoint stops, administrative inspections, and other warrantless searches and seizures—should be legislatively authorized, subject to public rulemaking, or adopted and evaluated through some alternative process that permits democratic input. In addition to spelling out the ways in which the ordinary processes of governance can be utilized to regulate policing, this Article fills in substantial gaps in the existing literature by analyzing why this has not been the case in the past, and explaining how, within the existing framework of administrative and constitutional law, courts can motivate change. It also directs attention to the manifold questions that require resolution in order to move policing to a more democratically accountable footing.

Brennan Lecture

This Note analyzes the relationship between “malice aforethought,” the mens rea required to commit murder, and self-defense, a potential justification for a killing. Although both concepts are well-established in criminal law, there is a dearth of jurisprudence dealing with their intersection. Specifically, many jurisdictions, including the Second Circuit, have yet to conclusively address the issue of whether the mental state required for proving a self-defense justification is incompatible with the mens rea of malice aforethought required for committing murder under the primary federal murder statute, 18 U.S.C. § 1111. Because under federal law, self-defense is an issue of common law, rather than statutory, the existing case law on this question in federal jurisdictions is inconsistent, inconclusive, and often nonexistent. Some circuits have indicated, often in dicta, that malice is incompatible with the reasonable fear for one’s safety that is required when acting in self-defense, while other courts have found it consistent for a defendant to possess a preformulated intent to kill another person but also act (and therefore kill) in the moment due to a fear for his or her life or safety. While both positions present analytical difficulties, these problems all stem largely from the definitional ambiguity surrounding “malice aforethought” and courts’ subsequent inconsistent applications of the concept in murder trials. Therefore, this Note argues for the adoption of a clear and consistent definition of “malice aforethought” which encompasses its common law definition, requiring a depraved or evil mental state beyond mere intent to kill.

It is a common lament that prosecutors in our criminal justice system are too adversarial. This Article argues that in a deeper sense, prosecutors may not be adversarial enough. The issue—which I call adversarial asymmetry—is that, as political actors, prosecutors have no inherent desire to seek maximal punishment, at least in any consistent way. While commentators tend to see this as a good thing, adversarial asymmetry helps explain a range of seemingly disparate pathologies in the criminal process. A number of problems—including the coerciveness of plea bargaining; pretextual prosecution; discriminatory charging practices; the proliferation of overly broad criminal statutes; the difficulty in deterring prosecutorial misconduct; and use of the grand jury as political cover for unpopular decisions—would not exist, or at least could be more easily solved, in a world where prosecutors were more single mindedly focused on maximizing victory in the criminal process. In fact, a more consistently adversarial system might have surprising advantages over our own, providing more accountability for prosecutors while being more consistent with the rule of law. And while heightened adversarialism unquestionably poses risks, alternative institutional structures could minimize those dangers. Even if actually implementing such a system is unrealistic or unappealing, the proposal has value as a thought experiment, for it exposes deep fault lines in the theoretical foundation of our system of criminal prosecution. Our current approach combines an adversarial process with politically accountable prosecutors—yet we lack a compelling account of what precise level of adversarialism is optimal or why political accountability is the right tool for producing good behavior from prosecutors. It should thus be unsurprising that our system often works poorly in practice. Absent a better reason to think that our current approach is the only option, we should be more willing to reconsider basic structural arrangements in criminal justice.

When it wants to be, the federal government is good at counting things. It tracks average daily caffeine intake (300 milligrams per adult older than twenty-two in 2008), weekly instances of the flu (875 reported by public health laboratories in the week ending January 14, 2017), monthly production of hens’ eggs (8.97 billion in December 2016), and annual bicycle thefts (204,984 in 2015). But it currently cannot provide a comprehensive count of how often police officers use lethal force against its citizens. The deaths of Michael Brown, Walter Scott, Tamir Rice, Laquan McDonald—all unarmed, black, and shot by police officers—and far too many others have forced the issue of lethal police use of force into the national consciousness. But while many recent reports have focused on the unreliability of current data, there has been relatively little consideration of how, exactly, the federal government might go about getting it. This Note seeks to fill this gap by laying out the contours within which the federal government can act to incentivize states to collect more and better data. After highlighting the need for robust data collected at the federal level and describing various issues with the current state of federal collection of law enforcement data, this Note outlines the legal landscape legislators considering such a policy must grapple with: the combination of federalism concerns that are particularly acute in the sphere of state and local law enforcement, and the Supreme Court’s somewhat ambiguous conditional spending jurisprudence. Finally, it explains how the federal government might incentivize data collection without running afoul of the law, proposing a legislative scheme for federal collection of law enforcement data that combines national guidelines, conditional spending requirements, and competitive grant funding.