by Jessica Brand, The Appeal

This Explainer was produced by The Appeal, a nonprofit criminal justice news site.

In our Explainer series, Justice Collaborative lawyers and other legal experts help unpack some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines—like bail, civil asset forfeiture, or the Brady doctrine—so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers quarterly to keep them current.

On September 2018, President Trump stood in front of 44 sheriffs as he began another diatribe against The New York Times and other media outlets that had published stories criticizing his administration. The sheriffs applauded.

The meeting was originally scheduled to be between the sheriffs and officials from ICE and U.S. Customs and Border Protection. Getting a photo opportunity with Trump was an unexpected boon. Sheriff Thomas Hodgson of Bristol County, Massachusetts, a man whose jails have had the highest suicide rate per capita in the state and who publicly offered to let Trump use his detainees as labor to build the Mexican “border wall,” presented Trump an honorary plaque that read, “There’s a new sheriff in town.” (David Nakamura / Washington Post and Sophia Eppolito / Boston Globe)

The Trump years will be known for many things, but one of them most likely will be the growing visibility of sheriffs as they rise from the local crime pages to the national stage.

What’s a sheriff?

If the sheriff sounds like something from the American frontier, that’s because it is. The role of sheriff goes back to England where sheriffs were usually appointed by the Crown and other officials to oversee the laws of the shire, or county. Duties included tax collection and running a local militia, also called the posse comitatus—citizens who would moonlight as law enforcement.

In America, sheriffs played a particularly pivotal role in Southern states where they served as chief law enforcement officers. (Northeast states relied on constables, who are more like the police chiefs of today.) Sheriffs got to take cuts from fees, one of the perks of the job, in addition to collecting salaries. As America expanded westward, those states adopted the Southern sheriff model. As states drafted their constitutions, they often included an elected sheriff position. Right now, at least 40 states have elected sheriffs. [James Toberlin / Virginia Law Review]

In many regions, especially in the South, sheriffs still have wide jurisdiction and primary law enforcement responsibilities. Unlike police chiefs, who usually report to mayors or other elected officials, sheriffs have fewer checks on their power. Many sheriffs serve long stints in office, and some are in place for decades.

While the precise role of elected sheriffs varies from state to state, they have some duties in common, including overseeing local jails, transporting prisoners and pretrial detainees, and investigating crimes. Some even act as coroners, ruling over a person’s cause of death.

The only states that do not have local sheriffs are Alaska, Hawaii, and Connecticut, which rely on statewide law enforcement agencies. [National Sheriffs’ Association]

Potential for abuse

While many sheriffs serve important functions in the community, the position itself is easy to abuse. Long tenures with limited oversight allow some to run their counties as small fiefdoms, subject to their own rules.

Despite their broad duties, sheriffs and their deputies aren’t always trained in law enforcement. Elected sheriffs may have backgrounds in business or real estate instead. Patronage can run strong in sheriffs’ departments, with some deputies hired as political favors. [James Toberlin / Virginia Law Review, Robert Faturechi and Ben Poston / Los Angeles Times]

While sheriffs are accountable to voters, that has led some to prioritize the will of the majority over their responsibility to ensure equal rights. For example, during the Civil Rights movement of the 1960s, many white Southern sheriffs sought to consolidate power for whites by cracking down on black protesters who tried to exercise their right to vote. [Louis Menand / The New Yorker]

Similarly, sheriffs today sometimes use their power to excess, violating civil liberties. In Worth County, Georgia, in 2017, the sheriff subjected up 850 high school students at Worth County High School, nearly the entire student body, to invasive drug searches, including checking inside their underwear, according to court documents. He was suspended and replaced after a Southern Center for Human Rights lawsuit. [Christine Hauser / The New York Times]

Running jails

Running a jail can be a lucrative business, and sheriffs have been known to enrich themselves in the process.

In Alabama, for example, sheriffs legally had the discretion to use state money to feed prisoners in any way they chose. Some opted to feed people cheaply and pocket the remainder, or use it for questionable purchases like cars and homes. In Etowah County, Sheriff Todd Entrekin used more than $750,000 from his office’s fund to buy a beach house and pay for other personal expenses. In Morgan County, Greg Bartlett was nicknamed “Sheriff Corndog” for feeding prisoners corndogs for two meals a day. [Eli Rosenberg / Washington Post]

Sheriffs also are responsible for maintaining jail conditions, which includes wide-ranging authority to do as they see fit. In Maricopa County, Arizona, former Sheriff Joe Arpaio forced detainees to wear pink underwear, reinstated the chain gang, and created a “tent city” with no air conditioning. [Jacey Fortin / New York Times]

Sheriff Thomas Hodgson in Bristol County, Massachusetts, charged detainees $5 per day in what amounted to rent payments between 2002 and 2004. Last summer, the Massachusetts attorney general requested an investigation of the suicides at his jails, where multiple lawsuits are pending. His jails contained about 13 percent of jailed people in the state between 2006 and 2016, but were home to over a quarter of jail suicides, according to an investigation by the New England Center for Investigative Reporting. [Sophia Eppolito / Boston Globe]

Sheriff as coroner

In 41 California counties, elected sheriffs also serve as coroners. Coroners are in charge of officially determining a cause of death—for example, whether a death is a homicide or accident.

In many counties, there will also be forensic examiners who do autopsies, but they don’t always control the final assessment of cause of death. Yet there is generally no requirement for sheriffs who are coroners to have previous medical expertise.

In San Joaquin County, departing Sheriff Steve Moore (who lost his primary in 2018) was accused by Dr. Bennet Omalu—the forensic examiner who is most famous for diagnosing severe head trauma in NFL players—of changing the cause of death in some instances from “homicide” to “accidental.” Moore was accused of altering the cause of death for a person who died from suffocation and of withholding information regarding another person who was Tased to death by police. He denied any wrongdoing. [Julie Small / KQED]

Excessive force

In some places, the sheriff department’srole as primary law enforcement leads to disparities in treatment and instances of excessive force, especially against people of color.

In Louisiana’s Iberia Parish, longtime Sheriff Louis Ackal had been sued so many times for his deputies’ excessive force that a group of state sheriffs no longer wanted to insure him against lawsuits. The group paid around $3 million to settle claims, including one connected to the death of a handcuffed man in a police car and another regarding an incident in which deputies threw a pregnant woman to the ground and pepper sprayed her. [John Simerman / The Advocate]

As the result of an FBI investigation, in 2016, Ackal went on trial for conspiracy to violate the civil rights of five pre-trial detainees, based on an alleged 2011 incident where the detainees were beaten by jail deputies. Nine former sheriff department employees pleaded guilty to civil rights violations; Ackal was acquitted. [Nathaniel Rich / New York Times Magazine]

Some counties, including a few in Colorado, still maintain groups of lay volunteers who are permitted to conduct armed patrols and help in times of emergency. Civilians conducting law enforcement have led to lapses of ethics and other dangerous situations. [James Toberlin / Virginia Law Review]

Sheriffs and forfeiture

Ex-Attorney General Jeff Sessions rescinded an Obama-era rule that prevented state and local law enforcement from using federal asset forfeiture laws to evade local reform efforts. As a result, sheriffs are now free to use asset forfeiture by citing federal law even if local rules prevent the practice. Forfeiture funds, like many other fees and fines, are often at the complete disposal of sheriffs and other officials, which can lead to abuses and corruption. [U.S. Department of Justice Police Directive 17-1 and DOJ press release]

In April 2018, Sheriff Butch Conway of Gwinnett County, Georgia, used $70,000 from asset forfeiture funds to buy a 707-horsepower muscle car. The Department of Justice wrote a letter demanding that the sheriff reimburse the federal government for the forfeiture funds he used. (The government had previously approved the purchase, taking at face value the sheriff’s argument that the car was for undercover operations and teaching kids about the dangers of distracted driving.) The Justice Department requested the money back in July 2018 and is conducting a federal review of other expenditures. [Tim Cushing / TechDirt and Tyler Estep / Atlanta Journal-Constitution]

Sheriffs and ICE

Because sheriffs have the power to detain people, they often play a role in immigration enforcement.

Ex-Sheriff Arpaio was found in contempt of court in 2017 after refusing to follow a federal judge’s order to stop profiling and detaining Latino people during traffic stops and immigration raids. His push to deport undocumented immigrants was a constant throughout his tenure, though he finally lost his seat in November 2016. [Jacey Fortin / New York Times]

ICE can issue detainers, which are requests for law enforcement to hold an individual for 48 hours even if the person has posted bond or completed a jail sentence. [ACLU] But courts have found that sheriffs who do detain people without probable cause or a new arrest are violating the Fourth Amendment. [Yvette Cabrera / ThinkProgress]

In Florida, ICE has implemented a pilot program using basic ordering agreements (BOAs), which pay sheriffs $50 per person to detain people solely for the purpose of immigration proceedings for up to 48 hours after they are supposed to be released. There are currently 18 Florida counties in the program. The Southern Poverty Law Center and ACLU brought a lawsuit in December 2018 challenging the legality of BOAs. [Southern Poverty Law Center]

ICE’s 287(g) program is based on agreements between state and local law enforcement and the agency to enable sheriffs and other officials to check the immigration status of jail detainees and assist with initiating deportation proceedings. [ICE Fact Sheet]

In 2006, then-Sheriff Jim Pendergraph enrolled Mecklenburg County, North Carolina, in the 287(g) program and, consequently, the number of people placed in deportation proceedings from the county increased significantly. Pendergraph left his elected position in 2007 to become the executive director of ICE’s Office of State and Local Coordination, and he made this comment at a 2008 law enforcement conference: “If you don’t have enough evidence to charge someone criminally but you think he’s illegal, we can make him disappear.” [Jacqueline Stevens / The Nation, Jim Morrill / Charlotte Observer, and Josie Duffy Rice / The Appeal]

Since 2017, the number of 287(g) agreements nationwide has roughly doubled; now more than 70 jurisdictions have such agreements. [Immigrant Legal Resource Center]

In December 2018, Sheriff Scott Jones disclosed information required by state law on the number of people detained and interviewed at Sacramento, California, jails; over 80 percent were Hispanic. He also reiterated that even though California prohibits sheriffs from assisting ICE in any operation because of sanctuary city laws, “ICE has access to our facility, they’re in our facility regularly and they have access to our databases.” [Alexandra Yoon-Hendricks / Sacramento Bee]

Constitutional sheriffs

Historically, some sheriffs have not only enforced the laws; they have also decided which laws not to enforce. They view this as protecting the people from the intrusions of the federal government.

The “constitutional sheriff” movement is comprised of current and former members of law enforcement who believe that sheriffs are the ultimate authority in their jurisdiction—even above federal law enforcement. Constitutional sheriffs have links to white supremacy. Famous members include Joe Arpaio and David Clarke, the ex-sheriff of Milwaukee County who is an unabashed Trump supporter. [Robert Tsai / Politico]

While it may seem like a fringe movement, it is prevalent enough to be taken seriously. In 2013, 500 sheriffs agreed not to enforce any gun laws created by the federal government. In Utah, almost all elected sheriffs signed an agreement to protect the Bill of Rights—and fight any federal officials who tried to limit them. [Robert Tsai / Politico]

Who sheriffs the sheriff?

Because sheriffs’ duties are enshrined in state constitutions—meaning the role cannot be eliminated—there are few restrictions on their power. In many cases, only a specific official can arrest a sheriff even if he or she has broken the law. In some places, only the governor can arrest the sheriff. In some states, there is a limited amount local government can do to change a sheriff’s budget or determine the allocation of funds. [James Toberlin / Virginia Law Review]

Even voters’ power over sheriffs is finite. In Los Angeles County, for example, voters tried to limit sheriffs’ terms in office, but then-Sheriff Lee Baca sued and won after a court found that sheriffs’ term limits cannot be altered by voters. [Editorial Board / Los Angeles Times]

Still, in some November 2018 elections, voters did successfully elect new sheriffs based on important issues in their communities.

In Mecklenburg County, North Carolina, for example, voters picked Garry McFadden after he promised to end the county’s 287(g) program, which had sent 15,000 people into deportation proceedings since 2006. He followed through on this promise on his first day in office. [Jane Wester / Charlotte Observer]

Shortly thereafter, two other sheriffs in North Carolina—Sheriff Clarence Birkhead of Durham County and Sheriff Gerald Baker in Wake County—both decided to pull out of their agreements with ICE. [Virginia Bridges / Herald Sun and WBTV]

In Los Angeles County, where the sheriff’s department has long struggled with accusations of excessive force and corruption, voters chose Democrat Alex Villanueva over the incumbent. Advocates are unsure whether Villanueva will continue the reforms instituted under the prior sheriff after a federal investigation found a culture of violence against detainees. [Maya Lau / Los Angeles Times]

There are also ways in which the legislative branch can help bring clarity to rules impacting sheriffs. In Alabama, for example, Governor Kay Ivey responded to news reports that Alabama sheriffs were pocketing money intended to feed prisoners by rescinding a policy that gave such money to the sheriffs “personally,” instead requiring that the amounts be placed in a specific fund. She also encouraged the legislature to pass specific laws regulating the personal use of such funds. It remains to be seen how well sheriffs adhere to this ruling. [Associated Press] 

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Jessica Pishko is a visiting fellow at the Sheriff Accountability Project at the Rule of Law Collaborative at University of South Carolina Law School.

This article was originally published at theappeal.org on January 4, 2019; reprinted with permission. Copyright, The Appeal, a project of Tides Advocacy

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