The third edition of The Badge, an ongoing Political Report series on the powers of sheriffs, looks at a site of heated political battles: sheriffs’ policing practices and their discretion to not arrest.
First elected in 2004, Sheriff Morris Young of Gadsden County, Florida has since worked to reorient law enforcement tactics. One of his strategies: instructing his deputies to avoid arrests when possible. “If we pick up a young man with a piece of crack cocaine in his pocket, instead of making an arrest, put it on the ground and just mush it up,” he told The Guardian last year. “Tell him: ‘OK. The next time.’”
This rhetoric may seem unusual if your first image of a sheriff is the traditional lawman, advocating for “lock ‘em up” policies. The Guardian dubbed Young a “radical sheriff.”
But his choices speak to sheriffs’ wide discretion when it comes to deciding how to police their jurisdictions. Much like police departments, sheriffs have leeway over how often to arrest, they interpret laws when enforcing them, and they decide what areas to prioritize. The debates on policing reform are as relevant to them as they are to the urban police departments on which they tend to focus.
Unlike police chiefs, though, sheriffs are popularly elected, and they are not subject to the immediate supervision of city councils or mayors. And that complicates the politics of policing practices and policing reform.
This arrangement has long created the space for groups looking to shape law enforcement to advance their agenda more directly. That space has traditionally been occupied by right-wing groups invested in promoting the supremacy of local governments. But opportunities for sheriffs like Young to reduce arrests are also coming into view, amid growing exposure of the link between punitive policing and the scope and racial inequality of mass incarceration.
This third edition of The Badge, an ongoing Appeal: Political Report series on the powers of sheriffs, looks at the discretion inherent in sheriffs’ authority to police communities and why it has long been the site of heated political battles.
Many sheriffs’ offices have the powers, and problems, of police departments
Most states give sheriffs’ departments, which operate at the level of counties, broad policing powers akin to those of municipal police departments. Those include the authority to arrest people, investigate crimes, and obtain and execute warrants.
But nothing is ever simple with sheriffs. Any given department’s exact powers and duties will depend on local rules and state laws. Pennsylvania sheriffs, for instance, do not have investigatory powers but are allowed to arrest people in some circumstances. The Pennsylvania Sheriffs’ Association has advocated for broadening sheriffs’ powers, to bring them in line with those of police officers.
In practice, even sheriffs who have the authority to police anywhere in their county must still negotiate territory with local police.
Sheriffs are typically the only policing force in rural and unincorporated areas. Law enforcement in cities and towns tends to be the province of police departments formed by municipal authorities, according to Peter Bibring, the director of police practices at the ACLU of California.
Despite this, jurisdictional overlap can get messy. Cities and towns contract with the sheriff’s office of their county, and sometimes even those of adjacent ones, to provide patrols or coverage. And some local landscapes flip expectations, with urban centers opting to consolidate with the countywide sheriff’s department while smaller municipalities form separate policing units.
Take Los Angeles. The Los Angeles Police Department patrols the city of Los Angeles, whereas the Los Angeles County Sheriff’s Department, the country’s largest sheriff’s department, patrols 130 unincorporated communities of Los Angeles County, as well as 42 smaller cities, including Compton, West Hollywood, East Los Angeles, and Lancaster.
In Duval County, Florida, however, the countywide sheriff’s department polices the city of Jacksonville (the state’s largest municipality), while a series of the county’s beach towns (Atlantic Beach, Jacksonville Beach, and Neptune Beach) have their own police departments, even if residents participate in electing the sheriff.
This patchwork conceals one fairly consistent throughline: Sheriffs police too.
Questions we know to ask of police departments—how systematically do they make arrests? how aggressively do they enforce lower-level infractions that do not need to be criminalized? in what situations are officers instructed to use force?— apply to sheriff’s offices as well.
The country’s prevailing policing practices fuel incarceration and jail populations. U.S. law enforcement is biased toward arrest and jail, and those with arrest records are more likely to be sentenced to prison terms. And the vast majority of arrests are over low-level offenses, according to a study by the Vera Institute of Justice, further emphasizing the impact that alternative tactics could have.
Punitive approaches to policing disproportionately affect Black and Latinx Americans, who are policed more aggressively, including by sheriffs’ departments, and who suffer the brunt of arrests. The Badge will return to issues of racial profiling, disparate policing, and uneven enforcement in a future installment.
Sheriffs can instead opt for policies that reduce detentions or avoid encounters with the criminal legal system.
All policing, after all, involves exercising discretion. “Too often, people labor under the illusion that police exist primarily to enforce the law. But the law is just one of several frameworks that guide what police do,” said Alex Vitale, a professor of sociology at Brooklyn College and the coordinator of its Policing and Social Justice Project. He cites “political considerations, budget and staffing, community and business demands, and a general desire to ‘maintain order.’”
For reform, sheriffs’ autonomy can be a double-edged sword
Bringing such change to sheriffs’ departments, though, means influencing law enforcement officials who are comparatively autonomous of the rest of local government. Where does that leave the politics of policing discretion?
On paper, this can enhance the power of voters to shape law enforcement in their communities.
Their elected status gives them the “opportunity to be more independent and free with policy and decision-making,” Rebecca Neusteter, the policing program director at the Vera Institute of Justice, told The Badge. “Things can change more quickly and more unilaterally.”
Neusteter explained that, “With the support of the community, they can be entrepreneurial” as compared to police chiefs, who are at-will employees who can be hired and fired by other local officials, who are typically mayors, city managers or city councils.
In an era where criminal justice reform is increasingly salient electorally, sheriffs are in a unique position of running on alternative policing practices and, if they are elected, directly putting them in place.
But sheriffs’ ability to hold on to their positions largely unsupervised, combined with the fact that their elections are quiet and overshadowed affairs, can compound the accountability gap that pervades other law enforcement agencies.
“Sheriffs are subject to far less oversight than most law enforcement,” Cloee Cooper, a research analyst at Political Research Associates, a think tank, told The Badge. “Although all law enforcement have some discretion over which laws to enforce and how to enforce them, sheriffs do so with far less immediate repercussions.” And they trumpet this, too. In a 2016 video, released by the Louisiana Sheriff’s Association, then Sheriff Jeff Wiley of Ascension Parish, claimed “independence and a sovereign nature.”
Sheriffs and decarceration
In 2016, the Florida news website Flagler Live asked candidates for sheriff, “What will you do to keep [jail] beds from getting filled just because they’re there?” Republican candidate Rick Staly refused the premise of the question. “The dependence on whether a jail bed is full or empty falls not upon the Sheriff but on the individual,” he said. “People who violate the law are subject to arrest and detainment.”
There are sheriffs and candidates who, unlike Staly during the campaign, acknowledge that their office has discretion over arrests, incarceration, and community relations.
Jorge Amselle, who is running this fall in Virginia’s Warren County, told The Badge that sheriffs should be a part of the movement along with reform-minded district attorneys, given their role in bringing people into the criminal legal system.
“Prosecutorial discretion, it starts with the guy on the beat, the cop,” he said. “When an officer pulls you over for speeding, he doesn’t have to write you a ticket. The sheriff has even more discretion. He makes policy. I have the discretion on how to best use my resources.”
Law enforcement forces can reduce arrests, and cease treating arrests as the default response to crime. Law enforcement can, for instance, issue citations instead or promote programs that divert people from bookings. They can also deemphasize tactics of punitive or large-scale enforcement and champion community programs.
“We cannot incarcerate our way out of crime,” Young, the Gadsden County sheriff, told the New York Times in 2016. The county’s incarceration rate has declined during Young’s tenure, as has its crime rate. His view is supported by studies about policing that connect curbing tactics that aggressively target low-level offenses to reduced major crime and improved perceptions of safety.
Sheriffs in Alabama and in Texas have supported cite-and-release programs for marijuana possession to avoid arresting people. In some jurisdictions, sheriffs have gone further in this domain than municipal officials.
Others have adopted initiatives to connect people with addiction issues to treatment options in lieu of arresting them.
And more candidates are echoing these ideas in their campaigns. In the ongoing election in East Baton Rouge, Louisiana’s largest parish, both challengers, Mark Milligan and Charles Jean Jr., pledged to limit arrests. “Limit misdemeanor arrest to violent offenses, Do NOT book anyone on simple marijuana possession,” Milligan wrote in a questionnaire that asked how he would reduce jail overcrowding. Tony Cummings, who lost to the sheriff of Florida’s Duval County, Mike Williams, earlier this year, had told The Appeal he would train his deputies to not enter situations assuming that arrest is the only option. And, in 2018, a New York sheriff known for aggressive arrest tactics, Sheriff Paul Van Blarcum, lost to Juan Figueroa, who highlighted the limit of focusing on arrests in the context of the opioid epidemic.
Resources freed up by reducing arrests and jail stays can be reoriented into community programs. In 2009, Sheriff Jerry Clayton of Washtenaw County, Michigan, implemented a community outreach program run by formerly incarcerated individuals that focuses on re-entry services such as housing and employment.
Gun rights and sheriffs’ supremacy
Over the past decade, though, sheriffs’ policing discretion has been most visible in a different set of officials than those driven by decarceration. Some sheriffs have vocally refused to enforce gun control laws passed at the state level.
In 2013, Sheriff Nick Finch of Liberty County, Florida, released an individual who had been arrested for illegally carrying a gun. The arresting officer reported Finch’s actions and alleged that the sheriff had falsified records to cover up the arrest. Finch was found not guilty at the trial.
Many other sheriffs, who often represent rural areas, have also vowed to defy gun control laws. In January, Klickitat County Sheriff Bob Songer announced he would not enforce new measures approved by Washington State voters. “I think it’s a bad law and I think it violates people’s rights,” he said, calling it unconstitutional. He claimed legitimacy from his elected status. “My only boss is the people that elected me to office,” he said to Reuters.
The authority he invoked mirrors, in some ways, the discretion used by sheriffs who wish to reduce jail stays.
“Officers have the discretion to choose whether and how they will use their state powers,” Seth Stoughton, an associate professor of law at the University of South Carolina School of Law and a former police officer, told The Badge. He explained that police officers are not legally obligated to intervene or make arrests in any situation.
Even the prosecutor who sued Finch in 2013 said the issue for him was not the sheriff’s decision to “unarrest,” but rather the allegation that he falsified public records. “If you want to stop enforcing a law, OK, I guess you can,” he told the New Yorker. “You can fire all your deputies and just sit over there in your office all day, if that’s what you want to do.”
This analysis would mean that policies such as Finch’s or Songer’s are a political or moral matter, though not a legal one.
Vitale, the Brooklyn College professor, told The Badge that the decisions made by sheriffs may be part of a “political project in which ideologies around perceived freedoms are much more important than what the law calls for. Fixing that will require a political solution, not a legal or procedural one.”
On the other hand, by invoking the Second Amendment, sheriffs like Finch and Songer are offering a distinct rationale that ties them to dark chapters of U.S. history.
When he refused to enforce gun laws in 2013, Finch became a cause célèbre for a right-wing movement known as the “constitutional sheriffs” movement. Songer also identifies as a constitutional sheriff, as did better-known sheriffs such as Joe Arpaio in Maricopa County, Arizona and David Clarke in Milwaukee, Wisconsin.
This movement believes that sheriffs have the ultimate authority to interpret the U.S. Constitution, and that they outrank the federal government.
“You are the supreme keeper of the peace, you are the people’s protector, you are the last line in the sand,” exhorts Richard Mack, a former Arizona sheriff who now runs the Constitutional Sheriffs and Peace Officers Association, in his book “The County Sheriff: America’s Last Hope.” The book also describes the sheriff as “a man who can stop the abuse, end the tyranny, and restore the Constitution, once again, as the supreme law of the land.” Mack is echoing William Potter Gale’s influential 1971 claim that the “county Sheriff is the ONLY LEGAL LAW ENFORCEMENT OFFICER” in the country.
Practically speaking, this amounts to a claim that sheriffs should shield their counties’ residents from rules issued by other levels of government. Mack calls this the “doctrine of interposition.” “Sheriffs standing for freedom have the responsibility to interpose … wherever anybody is trying to diminish or violate the individual rights of our counties,” he told NPR this year.
This doctrine has its roots in the resistance to federal civil rights laws, and in the far-right networks that emerged in the 1970s and 1980s. Mack denies this link.
Stoughton argues that such constitutional authority is an excessive prerogative for law enforcement to claim. “When a sheriff says that [a law is] unconstitutional, the sheriff is intruding on the court’s power to say what the law is,” he said. “And he is intruding on the legislature whose job is to make the law.”
Even then, and despite efforts by statewide officials to pressure or warn sheriffs for refusing to enforce gun laws, sheriffs remain largely autonomous. Most states have few limits to their discretion and few tools to constrain how they enforce the law.
Other than elections, Stoughton notes. “Their decision is reviewable in a political arena,” he said. “If the people don’t like what the law is or what the sheriff is doing, the solution isn’t to sue the sheriff, but to take them out of office.”
By extension, so can the people who don’t like conventional approaches to law enforcement and are working for alternative approaches to policing.
And yet, sheriff races have still not become central to those conversations. Emily Farris, an associate professor of political science at Texas Christian University who studies sheriffs, regrets this.
“When most people think about a politician, few conjure the image of a sheriff in their minds,” she told The Badge. “This is unfortunate, given sheriffs are elected with responsibilities that touch on the everyday of people’s lives.”