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We document and discuss the implications of a striking feature of modern American policing: the stasis of police labor forces. Using an original employment dataset assembled through public records requests, we show that, after the first few years on a job, officers rarely change employers, and intermediate officer ranks are filled almost exclusively through promotion rather than lateral hiring. Policing is like a sports league, if you removed trades and free agency and left only the draft in place.

We identify both nonlegal and legal causes of this phenomenon—ranging from geographic monopolies to statutory and collectively bargained rules about pensions, rank, and seniority—and discuss its normative implications. On the one hand, job stability may encourage investment in training and expertise by agencies and officers alike; it may also attract some high-quality candidates, including candidates from underrepresented backgrounds, to the profession. On the other hand, low labor mobility can foster sclerosis in police departments, entrenching old ways of policing. Limited outside options may lead officers to stay in positions that suit them poorly, decreasing morale and productivity and potentially contributing to the scale of policing harms. In turn, the lack of labor mobility makes it all the more important to police officers to retain the jobs they have. This encourages them to insist on extensive labor protections and to enforce norms like the “blue wall of silence,” which exacerbate the problem of police misconduct. We suggest reforms designed to confer the advantages of labor mobility while ameliorating its costs.

Although legal scholars have over the years developed an increasingly sophisticated account of policing in the largest cities, they have largely overlooked the thousands of small departments that serve rural areas and small towns. As this Article makes clear, small departments are hardly immune from the various problems that plague modern policing. But their sheer number—and relative obscurity—has made it difficult to get a handle on the magnitude of the difficulties they present, or the ways in which familiar reform proposals might need to look different in America’s small towns.

This Article begins to fill this gap. It does so by blending together empirical analysis of various dimensions of small-agency policing, with in-depth case studies that add much-needed texture to the patterns that the data reveal. It argues that the problems of small-town and rural policing differ in important ways from those that plague big-city police, and that there are predictable patterns that explain when and why small agencies are likely to go astray. In particular, it shows that small agencies are susceptible to two types of systemic failures—those that reflect the inherent limitations of small-town political processes and those that are driven by the capacity constraints that some small governments face. It then draws on the data and case studies to provide a preliminary sense of how prevalent these problems are likely to be.

This Article concludes with the policy implications that follow from this richer and more nuanced account of small-town and rural police. It begins with the oft- made suggestion that small agencies be made to “consolidate” with one another or simply dissolve, and it explains why consolidation is not only highly unlikely, but also potentially counter-productive. It argues that states should instead pursue two parallel sets of reforms, the first aimed at equalizing the dramatic disparities in police funding across municipalities, and the second focused on a set of regulatory measures designed to address specific small agency harms.

The American criminal justice system is exceptional, characterized by uniquely high sentences and uniquely large numbers of incarcerated individuals. This regime is perpetuated by a political system that fetishizes Americans’ short-term pushes for increased punitiveness when crime rates increase. Drawing on political process and representation reinforcement theories, this Note argues for a novel statutory solution that would help place a brake on retributive short-term preferences, while prioritizing criminal statutes that would challenge mass incarceration. This Note posits that by adopting state budgetary laws that mirror PAYGO budgetary rules and statutes, state legislatures can control the spiraling costs of administering local prison systems without jeopardizing legislators’ political futures. Criminal sentencing PAYGO, like Minnesota’s famous sentencing guidelines, would force policymakers to view criminal sentencing as a complete system, requiring tradeoffs and compromises. Through criminal sentencing PAYGO, states and their citizens can realize democratic and criminal justice administrative gains.

Federal and state court decisions over the past year are reshaping the contours of juvenile justice litigation. At the federal level, the Supreme Court’s recent decision in Jones v. Mississippi left intact the Court’s current commitment to treating age 18 as the dividing line between youth and adult criminal sentencing. If a youth commits a crime at age 17 years, 364 days, 23 hours, 59 minutes, and 59 seconds old, that youth cannot be put to death or receive mandatory life without parole (LWOP). One second later, these constitutional protections disappear. Calling into question this line drawing, litigants across the country are actively leveraging neuroscientific research to argue that emerging adults ages 18 through early 20s should receive the same constitutional protections as those under 18. While federal courts have not been receptive to this argument, some state courts are. Groundbreaking recent cases in Washington, Illinois, and Massachusetts state courts may signal a potential path forward. In light of these many recent developments, this Essay provides the first empirical analysis of how courts are receiving the argument to raise the age for constitutional protections and introduces a publicly accessible, searchable database containing 494 such cases. The data suggest that at present, Eighth Amendment arguments to categorically extend federal Miller protections to those 18 and above are unlikely to win. At the same time, however, state constitutions and state-level policy advocacy provide a path to expand constitutional protections for emerging adults. We discuss the implications of these trends for the future use of neuroscientific evidence in litigation concerning the constitutionality of the death penalty and LWOP for emerging adults. As this litigation moves forward, we recommend further strengthening connections between litigants and the scientific and forensic communities. Whether at the state or federal level, and whether in courts or legislatures, the record should contain the most accurate and applicable neuroscience.

The American public is slowly recognizing the criminal justice system’s deep defects. Mounting visual evidence of police brutality and social protests are generating an appetite for something different. How to change this system is still an open question. People across the political spectrum vary in their conceptions of the pressing problems and how to solve them. Interestingly, there is one consequential and overlooked area of the criminal justice system where there is broad consensus: police quotas.

Police quotas are formal and informal measures that require police officers to issue a particular number of citations or make a certain number of arrests. Although law enforcement leadership typically denies implementing quotas, courts, legislators, and officers have all confirmed the existence of this practice and linked it to odious criminal justice problems such as racial profiling, policing for profit, and overcriminalization. These problems have led legislators in many states to implement statutory prohibitions on quotas. Some of these statutes are of recent vintage and others are decades old. Nevertheless, these prohibitions and their attendant litigation have escaped sustained analytical scrutiny. Legal scholars typically overlook police quotas, subsume them within other categories (e.g., broken windows policing), or give pat acknowledgment of their existence without explaining how they work.

This Article corrects these omissions and makes two arguments. First, it contends that police quotas are a significant but undertheorized feature of criminal law and procedure. Quotas make police rewards and sanctions significant features of punishment in ways that can trump criminal offending and pervert due process principles. Second, it argues that quota-based policing is a unique area where there is widespread agreement and possibilities for change. Liberals, libertarians, conservatives, police officers, police unions, and racial minorities have all criticized police quotas. These vastly different constituents have argued that quotas distort police discretion and produce unnecessary police-civilian interactions. This Article supplements these arguments with a novel descriptive, statutory, and jurisprudential account of police quotas in the United States. It offers a framework for under- standing the arguments for and objections to quotas, and proposes some normative strategies that could build on statutory and litigation successes.

No one doubts that prosecutors may sometimes decline prosecution notwithstanding factual guilt. Everyone expects prosecutors to prioritize enforcement based on resource limitation and, occasionally, to decline prosecution on a case-by-case basis when they deem justice requires it. Recently, however, some state prosecutors have gone further, asserting the right to refuse categorically to enforce certain state laws. Examples include refusals to seek the death penalty and refusals to prosecute prostitution or recreational drug use. When may a single actor render inert her state’s democratically enacted law in this way? If the answer is anything other than “never,” the vast reach of American state criminal law demands a pertinent framework for ascertaining legitimacy.

In offering one, this Article provides the first extended analysis of the normative import of the locally elected status of the state prosecutors who make such pledges. If legitimacy is the problem, local elections can be the solution. That is, there may well be something suspect about unilateral prosecutorial negation of democratically enacted law. Yet that same negation can be justified as distinctly democratic when the elected prosecutor can wrap it in popular sanction.

This Article first unspools a once-robust American tradition of localized, populist nonenforcement of criminal law, best seen in jury nullification. It then draws upon democratic theory to construct a normative basis for reviving that tradition in the context of state prosecutors’ categorical nonenforcement. These moves uncover a before-now unappreciated connection: At least where the prosecutor ties her categorical nullification to the polity’s electorally expressed will, she accomplishes wholesale what nullifying juries could once do retail. I thus dub that wholesale action “populist prosecutorial nullification.” Building upon that analogy and my normative analysis, I set out a novel framework for evaluating state prosecutors’ categorical nonenforcement that is keyed to the concept of localized popular will, while accounting for populism’s well-known downsides.

Beginning in the 1970s, politicians and the public began to view individuals who committed violent offenses as irredeemable dangers to the public whose incarceration was necessary to ensure the public’s safety. As a result, state legislators enacted sentencing statutes that increased the punishment of violent crimes, which include offenses such as murder, rape, and robbery. This Note explores what led lawmakers to adopt sentencing statutes that single out individuals convicted of committing violent offenses for enhanced punishment and then shows that those lawmakers operated on the basis of inaccurate or incomplete conceptions of violent crime. Drawing on recent sociological and other empirical work, it shows that there is no neat dividing line between people who commit violent and non-violent offenses and argues that lawmakers made their decisions on the basis of false or incomplete information. In response, this Note advocates for the elimination of sentencing statutes that impose enhanced sentences on individuals convicted of violent crimes. Lawmakers should instead determine the appropriate criminal punishment for those convicted of violent crimes through the holistic, evidence-based approach that has become popular in the last decade with respect to non-violent crimes.