The county sheriff is unique among our nation’s law enforcers, with an ancient pedigree, elected status, and special protections as a state constitutional officer. But these factors combine to cause a recurrent problem—elected sheriffs often assert for themselves the power to refuse to enforce criminal laws of their choosing. Today’s constitutional sheriffs—a group of sheriffs who view themselves as the highest authority in their county, answerable only to their electorate—are the latest manifestation of this ethos, declaring opposition to gun control measures, pandemic restrictions, environmental protections, and more. Lest one think these nonenforcement decisions are entirely one-sided, other sheriffs have declared opposition to immigration and abortion restrictions. This challenge to the rule of law has flourished in part because our modern criminal system embraces enforcement discretion, offering only the thinnest of constitutional backstops. In lieu of legal limits, even blanket nonenforcement of certain crimes is managed primarily through political checks, such as elections or intervention by other levels of government. But these constraints have serious shortcomings. This Article proposes reviving judicially-enforceable limits on nonenforcement discretion modeled on a now-forgotten understanding of the sheriff’s duties to investigate and enforce. For much of our history, state courts played an important role in supervising nonenforcement discretion. Routinely called upon to determine when a sheriff’s failure to enforce the law amounted to neglect of duty, courts across the country developed a relatively nuanced understanding regarding the permissibility of nonenforcement. This precedent rebuked sheriff nullification but did not naively demand perfect enforcement, thus limiting lawlessness while preserving some flexibility. Over time, however, this approach largely fell by the wayside, replaced with broad pronouncements of enforcement discretion. Rediscovering the authority of courts to check enforcement discretion presents an opportunity to rethink much of our modern canon—such as the false choice between full enforcement of all criminal laws and unfettered discretion, and the unassailability of law enforcement’s case-by- case discretion. To be sure, this approach imposes costs, but there are legislative strategies to mitigate these consequences, including limiting arrestable offenses and the use of pretrial detention. And without limits on nonenforcement discretion, we risk an unchecked arbitrariness that poses the greatest risk to the most vulnerable in our society.

Continue reading The Sheriff’s Constitution.

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