Introduction
The current Administration’s detention of individuals in foreign prisons — claiming afterward to have no power over their treatment or return — represents just one example of its disregard for the boundaries of constitutional governance.1 Summarily blowing up boats thousands of miles away from the United States because the Administration believes that there are drugs on them represents another.2 As others have observed, the officials who make up this presidential Administration exemplify Justice Oliver Wendell Holmes’s “bad man” — one who cares only for the “material consequences”3 of legal violations, not “the vaguer sanctions of conscience”4 — and strain traditional notions of executive power, judicial oversight, and remedial efficacy. Yet we contend that this Administration’s threats to rule of law and accountability are not as novel as they may at first appear. Across the country, there are — and have long been — jurisdictions and institutional settings extraordinarily inhospitable to the protection of constitutional rights.5
As one of us has previously observed, the ability to seek redress for constitutional rights violations is the product of the “civil rights ecosystem” in which the claim arose, defined by the locality’s attorneys, judges, community members, legal rules and remedies, and informal litigation practices.6 Just as some natural ecosystems are friendlier to a wide variety of plant and animal life, some civil rights ecosystems are friendlier to civil rights suits.7 In such jurisdictions, there are civil rights lawyers willing to bring cases when they arise; engaged community activists who amplify misconduct when it occurs; judges and juries generally sympathetic to civil rights claims; viable state and federal causes of action; and local governments that reliably comply with legal rulings.8 Other civil rights ecosystems are less hospitable to civil rights claims: There are fewer lawyers willing to bring civil rights cases; judges and juries unsympathetic to civil rights claims; limited federal and state causes of action; and no government officials willing to take remedial action.9
We focus here on civil rights deserts; that is, extremely inhospitable ecosystems where the interaction of various structural barriers systematically prevents justice from functioning properly.10 Like geographical deserts where water is scarce due to the interaction of climatic and geological conditions, these jurisdictions have a combination of people, rules, and practices that prevent legal remedies from reaching those whose rights have been violated and who deserve relief. Such deserts predate the Trump Administration and will almost certainly outlast it, creating zones where remedial gaps make access to justice as barren for everyday Americans as it is for those caught in the Administration’s most controversial policies.
In this Essay, we identify two distinct types of civil rights deserts, each characterized by different barriers:
Accountability deserts are regions where institutional obstacles prevent rights violations from being vindicated in the courts. A prime example is Rankin County, Mississippi, where a self-proclaimed “Goon Squad” of deputies in the sheriff’s office terrorized residents for nearly two decades.11 In February 2023, attorneys revealed how these deputies had broken into the home of two Black men, tortured them, and shot one in the mouth.12 Journalists’ subsequent investigation revealed that the Goon Squad had been unlawfully arresting, beating, and torturing people for more than two decades.13 How had these practices gone unaddressed for so long? The lack of an active civil rights plaintiffs’ bar, fear of retribution by those subject to violence, and a culture of impunity within the sheriff’s office created a perfect storm such that accountability mechanisms simply did not function.
Enforcement deserts are regions where rights violations are successfully vindicated in the courts, but systemic resistance prevents the terms of judicial victories from being implemented on the ground. The jails in Hinds County, Mississippi, exemplify this type. Despite a United States Department of Justice investigation and consent decree addressing horrific jail conditions,14 County officials repeatedly failed to implement required changes over several years.15 The judge overseeing the consent decree ultimately held the County in contempt (twice) and appointed a receiver to take over jail management — extreme measures necessary only because standard enforcement mechanisms consistently failed.16
As these examples illustrate, civil rights deserts have both territorial and institutional dimensions. On the territorial front, some ecosystem failures — hostile courts, weak plaintiffs’ bars, unsympathetic political cultures — can limit accountability across an entire jurisdiction. On the institutional front, structural features of institutions can further insulate them from oversight regardless of the surrounding legal landscape. Jails and prisons are distinctively susceptible: As enclosed spaces that control access to information and house populations with diminished perceived credibility, they can function as domestic black sites.
The deserts we describe in Rankin and Hinds Counties suffer from both types of challenges. Territorial characteristics combine to make Rankin and Hinds Counties unfriendly to plaintiffs in civil rights cases. The counties sit side by side in the Southern District of Mississippi, which is within the jurisdiction of the Fifth Circuit Court of Appeals — among the most unsympathetic benches for plaintiffs in civil rights cases.17 Very few attorneys in the state of Mississippi regularly take civil rights cases,18 and Mississippi is reputed to have “the least effective and the least robust public defender system in America.”19 Institutional characteristics of the Rankin County Sheriff’s Office and Hinds County jails — both of which afford seemingly limitless authority over criminally involved, vulnerable, disenfranchised populations — make accountability and enforcement especially difficult to achieve.
Rankin and Hinds Counties illustrate not only the challenges of civil rights deserts but also potential strategies to address them. In Rankin County, a press conference about one egregious case brought media scrutiny, community advocacy, and state and federal intervention to decades-long misconduct. In Hinds County, persistent judicial oversight culminated in extraordinary remedies when standard enforcement mechanisms proved insufficient. These examples highlight four critical mechanisms for addressing systemic accountability and enforcement failures: (1) robust advocacy that strategically targets high-impact cases; (2) coordinated press and community attention that creates public pressure; (3) sustained judicial enforcement, with judges who escalate interventions when faced with resistance; and (4) government allies willing to facilitate change. The interaction between these mechanisms can overcome territorial and institutional barriers, forging oases in civil rights deserts.
We do not mean to suggest that systemic lawlessness is easy to combat — whether at the local or federal level — or that these strategies will prove widely or permanently successful. But understanding the parallel between local and federal civil rights deserts allows us to apply similar analytical frameworks to both. The mechanisms that enable rights violations to persist without remedy — whether in a county jail or an offshore detention facility — share common features but are neither inevitable nor permanent. Through strategic interventions, oases can emerge in civil rights deserts and even the most entrenched accountability and enforcement gaps can begin to close.