Mac was three years old and Anya was five when, sitting in the family car, they watched a police officer arrest their mother for a seat belt violation.1×1. Marcia Coyle, Three Who Dared: The Perfect Case, Nat’l L.J., Mar. 26, 2001, at A1. After that, Mac was terrified of police.2×2. See id. The next morning on the way to school, Mac hid in a ditch because he thought he saw a police car.3×3. See id. When a police officer came to the daycare center, the three-year-old fell to the floor and huddled in a fetal position.4×4. Id. According to a child psychologist, Mac “felt very guilty that he couldn’t stop this horrible thing [and that] . . . he was powerless to help his mother.”5×5. Atwater v. City of Lago Vista, 532 U.S. 318, 370 (2001) (O’Connor, J., dissenting) (omission in original). As Mac’s mother concluded, her children had learned a terrible lesson: “[T]he bad person could just as easily be the policeman as it could be the most horrible person they could imagine.”6×6. Id.
Mac is now twenty-six years old: he calls his mother’s arrest “one of the most formative moments of my life.”7×7. Email from Mac Haas to author (Jan. 3, 2019, 08:38 EST) (on file with the Harvard Law School Library). “I saw them take her out of the car,” he recalls.8×8. Telephone Interview with Mac Haas (Jan. 26, 2020) (on file with the Harvard Law School Library). “I remember my mother being cuffed. . . . I felt really helpless.”9×9. Id. I asked him if the experience had affected his view of police. “It feels like a primal thing,” he said.10×10. Id. “It’s physical, I get very anxious if I’m pulled over . . . [e]ven if I’m doing nothing wrong.”11×11. Id.
We do not know how many American children have watched a parent or family member get arrested, but it is likely in the millions. At least five million children — about seven percent of all minors — have had a parent in prison or jail.12×12. Dan Levin, As More Mothers Fill Prisons, Children Suffer “A Primal Wound,” N.Y. Times (Dec. 28, 2019), https://nyti.ms/39lUAbF [https://perma.cc/S5JK-CP2D] (citing David Murphey & P. Mae Cooper, Child Trends, Parents Behind Bars 1 (2015), https://www.childtrends.org/wp-content/uploads/2015/10/2015-42ParentsBehindBars.pdf [https://perma.cc/MPD2-VAYL]). Over half of all people in prison are parents.13×13. Lauren E. Glaze & Laura M. Maruschak, U.S. Dep’t of Justice, Parents in Prison and Their Minor Children 1 (rev. ed. 2010), https://www.bjs.gov/content/pub/pdf/pptmc.pdf [https://perma.cc/HN6B-RZVR]. Roughly forty-five percent of all Americans have had a member of their immediate family incarcerated.14×14. Peter K. Enns et al., What Percentage of Americans Have Ever Had a Family Member Incarcerated?: Evidence from the Family History of Incarceration Survey, 5 Socius, article no. 17, at 1, 5 (2019). Mac and Anya are white and from an economically stable family,15×15. See Coyle, supra note 1. but these kinds of experiences are disproportionately visited on poor children of color: poor people are more likely to be arrested and jailed, and black children are twice as likely as white children to have experienced the incarceration of a parent.16×16. See Glaze & Maruschak, supra note 13, at 2, 17 tbl.9 (finding that thirty percent of state prisoner parents who provided primary financial support earned less than $1,000 in personal income in the month before their arrests); Murphey & Cooper, supra note 12, at 4. With more than ten million annual arrests, hundreds of thousands of children likely experience the fear and trauma of watching a police officer take a loved adult into custody every year.17×17. 2018 Crime in the United States: Table 29: Estimated Number of Arrests, FBI, https://ucr.fbi.gov/crime-in-the-u.s/2018/crime-in-the-u.s.-2018/tables/table-29 [https://perma.cc/4CCA-JEKU]; see also Cynthia Burnson, How Witnessing a Parent’s Arrest Affects a Child, Nat’l Council on Crime & Delinq.: NCCD Blog (Jan. 15, 2019) https://www.nccdglobal.org/blog/how-witnessing-parents-arrest-affects-child [https://perma.cc/6Q46-JDK2] (noting that one-quarter of caregivers in study reported “their child had experienced [a parent’s] arrest, and most reported the experience as ‘extremely distressing’” (citing Julie Poehlmann-Tynan et al., Attachment in Young Children with Incarcerated Fathers, 29 Dev. & Psychopathology 389, 396 (2017))).
The past decade has seen a deepening public and scholarly reckoning with the extraordinary human costs of the American carceral state. Those costs are physical and psychological as well as economic. They are wealth-based, racial, and gendered. They are individual as well as collective, private as well as political. They may include the lasting financial pain of a heavy fine or the trauma of incarceration. Such costs affect children, families, and entire communities. These costs have been especially and historically profound for African Americans, but the carceral state burdens many vulnerable groups, including Latinx communities, immigrants, the poor, the homeless, and those suffering from mental health and substance abuse disorders. After thirty-plus years of mass incarceration, these burdens have distorted the life trajectories of multiple generations of Americans.
In her Foreword, Professor Dorothy Roberts argues that abolitionism is the best response to this legacy of carceral destructiveness, not only as a matter of principle and policy but also as a matter of constitutional interpretation.18×18. Dorothy E. Roberts, The Supreme Court, 2018 Term — Foreword: Abolition Constitutionalism, 133 Harv. L. Rev. 1, 108–20 (2019). As Roberts and others describe it, abolitionism is a movement that aspires to eradicate prison, police, the death penalty, and the carceral state that deploys them, and to replace them with alternative forms of dispute resolution and investments in social welfare aimed at a more peaceful, egalitarian society.19×19. See, e.g., Allegra M. McLeod, Envisioning Abolition Democracy, in Developments in the Law — Prison Abolition, 132 Harv. L. Rev. 1613, 1618 (2019) (describing abolitionism as “a long-term political vision with the goal of eliminating imprisonment, policing, and surveillance and creating lasting alternatives to punishment and imprisonment” (quoting Charlene A. Curruthers, Unapologetic: A Black, Queer, and Feminist Mandate for Radical Movements, at x (2018))); Roberts, supra note 18, at 6–8. At the center of abolitionism sits a historical, racial, and economic analysis that understands the American criminal apparatus as a direct descendent of chattel slavery.20×20. See Roberts, supra note 18, at 19–20. See generally id. at 19–42. In this view, structural racism and the carceral impulse are inseparable: the modern carceral state advances racism and exploitation, while racism and exploitation shape and drive the expansion of the carceral state.
Prison abolitionism is not new — its roots and influences range from Marxism to W.E.B. DuBois to the Black Panthers.21×21. See Angela Y. Davis, Abolition Democracy: Beyond Empire, Prisons, and Torture 95–96 (2005) (discussing DuBois’s theory of abolition); Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. Rev. 405, 447–60 (2018) (tracing linkages between Movement for Black Lives and critiques of racial capitalism); Roberts, supra note 18, at 44 (describing DuBois’s influence); id. at 47–48, 110 (noting influence of Black Panthers on abolitionism). Likewise, there is a long intellectual history to the claim that a more robust and egalitarian welfare state would obviate much of the need for prison.22×22. See, e.g., Monica C. Bell, Response, Hidden Laws of the Time of Ferguson, 132 Harv. L. Rev. F. 1, 12–13 (2018) (“Many of the states with the least generous social safety nets use criminal justice to stand in for poverty alleviation and thus have had the nation’s highest incarceration rates.”). See generally Elizabeth Hinton, From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America (2016) (describing how failures in President Lyndon Johnson’s War on Poverty programmatically increased the criminalization of poor African Americans); Loïc Wacquant, Punishing the Poor (2009) (arguing that the expansion of the criminal apparatus is tied to the devolution of the welfare state). But these ideas have gained renewed traction in the modern era of racialized mass incarceration, stop-and-frisk, the Movement for Black Lives, and the new debtor’s prison. These phenomena have fueled widespread recognition that the carceral state remains a central driver of racial and class inequality in the United States, inextricably intertwined with the ways that we discriminate against people of color and punish the poor.23×23. Wacquant, supra note 22, at 41.
Until relatively recently, prison abolitionism was primarily the terrain of community activists and movement theorists. The Movement for Black Lives that emerged after Ferguson and community groups from New York to Chicago to Los Angeles have all made various forms of abolition central to their advocacy and movement-building efforts.24×24. See, e.g., Akbar, supra note 21, at 460–73; McLeod, supra note 19, at 1624–27 (describing the Chicago torture reparations project). Those ideas, however, have also been making their way into the scholarly legal discourse,25×25. See, e.g., Akbar, supra note 21, at 460–73; César Cuauhtémoc García Hernández, Abolishing Immigration Prisons, 97 B.U. L. Rev. 245, 246 (2017); McLeod, supra note 19, passim; Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 UCLA L. Rev. 1156, 1161 (2015); Jocelyn Simonson, Essay, The Place of “The People” in Criminal Procedure, 119 Colum. L. Rev. 249, 304 (2019); Dean Spade, The Only Way to End Racialized Gender Violence in Prisons Is to End Prisons: A Response to Russell Robinson’s “Masculinity as Prison,” 3 Calif. L. Rev. Cir. 184, 186 (2012); Tracey L. Meares, Policing: A Public Good Gone Bad, Bos. Rev. (Aug. 1, 2017), http://bostonreview.net/law-justice/tracey-l-meares-policing-public-good-gone-bad [https://perma.cc/X56Q-S6NC] (“[P]olicing as we know it must be abolished before it can be transformed.”). The Harvard Law Review devoted its 2019 Developments in the Law issue to abolitionism, publishing pieces by Professor Dylan Rodríguez, Professor Allegra McLeod, Angel E. Sanchez, Patrisse Cullors, and Roberts. See Developments in the Law — Prison Abolition, 132 Harv. L. Rev. 1568 (2019). and Roberts paves the way for even broader academic engagement. Roberts herself has been writing about abolitionism for over a decade.26×26. See, e.g., Dorothy E. Roberts, Constructing a Criminal Justice System Free of Racial Bias: An Abolitionist Framework, 39 Colum. Hum. Rts. L. Rev. 261 (2007). With this Foreword, she has issued a 122-page invitation to constitutional scholars to reconsider the role of racialized incarceration in light of abolitionist principles traced back to the Reconstruction Amendments and the eradication of slavery. “[H]uman freedom required slavery abolition then,” she writes.27×27. Roberts, supra note 18, at 48. “[T]oday it requires the abolition of the prison industrial complex that has replaced slavery as the bulwark of racial capitalism.”28×28. Id.
Roberts does not distinguish between constitutional criminal procedure in particular and constitutional law more generally, although many of the cases she discusses are criminal procedure icons.29×29. Id. at 81–84 (discussing Heien v. North Carolina, 135 S. Ct. 530 (2014), and Utah v. Strieff, 136 S. Ct. 2056 (2016)); id. at 91–93 (discussing McCleskey v. Kemp, 481 U.S. 279 (1987)). Part of her point is that the entire Constitution — not just its expressly criminal provisions — is implicated in the modern racialized carceral state and the “relentless antiblack violence of constitutional doctrine.”30×30. Id. at 10. Obviously, however, criminal procedure plays a unique role in the carceral infrastructure. By its nature, criminal procedure validates the exercise of violent, coercive state force against some of the most vulnerable members of the polity. The Fourth Amendment authorizes searches and seizures.31×31. See U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”). The Fifth Amendment authorizes deprivations of life, liberty, and property.32×32. See id. amend. V (“No person shall . . . be deprived of life, liberty, or property, without due process of law . . . .”). The Sixth Amendment constitutionalizes the prosecutorial infrastructure.33×33. See id. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”). The Eighth Amendment validates the imposition of bail, fines, and punishment.34×34. See id. amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”). From an abolitionist perspective, this makes criminal procedure part of the carceral problem, perhaps irredeemably so.35×35. See, e.g., Alec Karakatsanis, Usual Cruelty 16 (2019) (“If the function of the modern punishment system is to preserve racial and economic hierarchy through brutality and control, then its bureaucracy is performing well.”); Paul Butler, The System Is Working the Way It Is Supposed to: The Limits of Criminal Justice Reform, 104 Geo. L.J. 1419 (2016). But Roberts encourages us not to throw the constitutional baby out with the bathwater. Rather, she argues that we should take the post-Reconstruction Constitution — and by extension the Bill of Rights as incorporated against the states through the Fourteenth Amendment — seriously as a potential vehicle for more egalitarian and less violent democratic practices.
In that spirit, this Response accepts Roberts’s invitation to reexamine constitutional criminal procedure in light of the abolitionist insight that the American carceral impulse is tied to, driven by, and a major contributor to structural racism. This means that expansive carceral doctrines — cases that strengthen and validate the state’s authority to deploy the police power to coerce and to incarcerate — represent judicial investments in the state’s racialized powers of social control.36×36. See Roberts, supra note 18, at 80 (arguing that the Court’s colorblind jurisprudence permits “police [to] enforce a carceral grip on entire communities”). Put differently, when the Supreme Court elevates carceral values over individual liberty and privacy, it puts its thumb on the scale in favor of punitive and inegalitarian police practices.37×37. See Sharon Dolovich, Canons of Evasion in Constitutional Criminal Law, in The New Criminal Justice Thinking 111 (Sharon Dolovich & Alexandra Natapoff eds., 2017) (pointing out how various Supreme Court doctrines adopt presumptions in favor of law enforcement). Roberts zeroes in on the racial half of this equation: how the doctrinal colorblindness of criminal procedure permits the carceral power to do destructive racial work.38×38. E.g., Roberts, supra note 18, at 81 (noting the Court’s “colorblind disregard of the effect gutting Fourth Amendment protections will have as police gain ever-greater power to reign over marginalized communities”). This Response zeroes in on the carceral half: the ways that criminal procedure validates, maintains, and promotes a specifically carceral police power.
I focus in particular on misdemeanor arrest doctrine. Low-level offenses are central to the carceral ethos and its racial consequences.39×39. See Alexandra Natapoff, Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal 7–12, 149–70 (2018). Such offenses include jailable as well as nonjailable misdemeanors, decriminalized offenses, violations of municipal ordinances, and traffic violations.40×40. See id. at 47–49, 220–25 (detailing the large and diverse universe of low-level offenses). Such offenses expand the power of the state to criminalize large numbers of people for common, rarely culpable, often harmless conduct, and they confer vast discretion on police to aim that carceral power in racially disproportionate ways. By definition, misdemeanors do not lead to prison41×41. Misdemeanor sentences of less than one year are typically served in jail, not prison. See id. at 21. and therefore have not been prominent in the mass incarceration conversation, but they are carceral in the deepest sense: they fuel the use of policing, jail, and criminal punishments as modes of governance and social control. Historically, misdemeanors have been central to the racialization of crime, to the criminalization of black men in particular, and to the criminalization of poverty in general.42×42. Id. at 9–11. At the same time, misdemeanors are currently an active site for decarceral experimentation43×43. See, e.g., Allegra M. McLeod, Decarceration Courts: Possibilities and Perils of a Shifting Criminal Law, 100 Geo. L.J. 1587, 1631 (2012) (describing “a decarceration model” for low-level specialized courts that “aims to reduce reliance on incarceration while achieving other social goals”). See generally Alexandra Natapoff, Misdemeanor Decriminalization, 68 Vand. L. Rev. 1055 (2015). and thus offer an especially fertile space to grapple with abolitionist ideas.
As a way of surfacing the power of the misdemeanor carceral phenomenon, I revisit one of the most important carceral decisions in the criminal procedure pantheon, Atwater v. City of Lago Vista.44×44. 532 U.S. 318 (2001). In that case, the Supreme Court held that police officers have discretion to effectuate a full custodial arrest for the most minor, nonjailable offenses, including the seat belt violation for which Gail Atwater — Mac and Anya’s mother — was arrested.45×45. See id. at 323–24. Atwater does not always get its full share of attention in the mass incarceration conversation because it is not explicitly about race, punishment, or prison. But Atwater is foundational for its expansion of the police power to incarcerate, and it is one of the core constitutional decisions that make the modern carceral state possible. It permits custodial arrest and intrusive searches for any offense, no matter how minor. It converts racial profiling into jailtime. As a matter of governance structure, the decision authorizes police to insist upon incarceration even where the democratically elected state legislature has expressly decided that incarceration would be excessive punishment. Atwater is, in that sense, a doctrinal pillar of the American police power.
Ever since I started thinking systematically about misdemeanors,46×46. See generally Natapoff, supra note 39; Alexandra Natapoff, Aggregation and Urban Misdemeanors, 40 Fordham Urb. L.J. 1043 (2013) (identifying erosion of the individual fault model in misdemeanor processing); Alexandra Natapoff, Gideon Skepticism, 70 Wash. & Lee L. Rev. 1049 (2013) (identifying structural barriers to effective misdemeanor representation); Alexandra Natapoff, Gideon’s Servants and the Criminalization of Poverty, 12 Ohio St. J. Crim. L. 445 (2015) (discussing the welfarization of crime through petty offenses); Natapoff, supra note 43 (pointing out the net-widening and inegalitarian effects of decriminalization); Alexandra Natapoff, Misdemeanors, 85 S. Cal. L. Rev. 1313 (2012); Alexandra Natapoff, The Penal Pyramid, in The New Criminal Justice Thinking, supra note 37, at 71 (theorizing the erosion of rule of law regarding the pettiest offenses). I have thought that Atwater was wrongly decided. It understates and mischaracterizes the extraordinary influence of the low-level misdemeanor machinery, especially with respect to fine-only and traffic offenses. It minimizes and demeans the pain, fear, and burdens that attend a full custodial arrest. It guts the meaning of the Fourth Amendment term “reasonable.” But Roberts’s Foreword helped me see more clearly just how influential Atwater has been in normalizing the carceral presumption, that is, making it “seem ordinary and natural” to cage “subordinated people.”47×47. Roberts, supra note 18, at 16. By permitting police to fill the nation’s jails for offenses deemed by state legislators too petty to warrant incarceration, the Atwater Court implicitly elevated the state’s police power to incarcerate over its democratically tempered power to punish.48×48. See infra Part III, pp. 167–77.
This Response adopts Roberts’s abolitionist lens to explore Atwater’s contributions to the culture and practices of the misdemeanor carceral state. Specifically, it offers an interpretive template to identify the Atwater Court’s overt and covert carceral commitments, and to surface the Court’s often empirically questionable justifications for sacrificing individual liberties to the police power. It then extends that template to Atwater’s progeny — Florence v. Board of Chosen Freeholders,49×49. 566 U.S. 318 (2012). Virginia v. Moore,50×50. 553 U.S. 164 (2008). and Utah v. Strieff51×51. 136 S. Ct. 2056 (2016). — exploring how these cases vastly expand the carceral power and consequences of a misdemeanor arrest. Like Atwater, these cases normalize and deregulate the state’s deployment of force, fear, and incarceration as regular features of governance. They downplay the impact of such governance strategies on the individuals most affected by them. Finally, they elevate the carceral police power over competing decarceral choices contained in state law and in other constitutional doctrines. These pro-carceral moves weaken core precepts that are central to the Bill of Rights: due process, equality, and, perhaps most obviously, freedom from government coercion and intrusion.
Abolition constitutionalism is thus a provocative invitation to scholars to reconsider the carceral presumptions that permeate criminal procedure doctrine and that tilt the balance in favor of the state’s power to incarcerate and control. At the same time, it provides an opportunity to reaffirm the deep liberty and equality principles of criminal procedure, and to consider how elevating those principles over the police power and its carceral impulses might advance a more just and egalitarian criminal process.
* Chancellor’s Professor, University of California Irvine School of Law. Many thanks to Amna Akbar, Beth Colgan, Sharon Dolovich, Eisha Jain, Allegra McLeod, and Jocelyn Simonson for comments on earlier drafts. My deepest gratitude to Mac Haas for his willingness to share his experiences with me.