Document Type

Article

Publication Date

2023

Publication Title

UCLA Law Review

Publication Title (Abbreviation)

UCLA L. Rev.

Volume

70

Issue

2

First Page

470

Abstract

If racial justice is the most pressing issue in America today, police brutality is the flashpoint. Incident after incident of police brutality during searches and seizures, and within jails and prisons reinforces the conviction within many communities that police harm with impunity those whom they have a duty to protect. Existing criminal statutes are filled with discretionary standards that give deference to officers while civil remedies require victims to surmount the doctrine of qualified immunity. To increase accountability for police brutality, legislatures and courts have so far focused on reducing or eliminating these procedural hurdles. But their changes have not significantly affected the status quo. Police impunity continues to represent a peculiar gap in our otherwise over-inclusive legal system.

This article proposes a new way of increasing accountability for police brutality by highlighting its particularly heinous conduct. Existing criminal law misses the cumulative levels of violence inflicted through police brutality by addressing it under existing offenses such as assault, battery, or homicide. Instead, I propose a model criminal statute specific to this violence, classified as torture committed by public officials. The statute bans acts committed with the intent to cause severe physical or mental pain or suffering during searches and seizures as well as within jails and prisons. This statute combines the deterrent effects of criminal law with the social signaling of a collective condemnation of police brutality, and punishes a crime particularized to those who enact violence while cloaked with state authority.Using the proposed statute to overcome resistance to police accountability offers significant benefits. First, the statute establishes an objective standard for prosecution in place of existing laws that defer to officer and departmental discretion and their attendant presumption that officer conduct falls within the scope of regular police duty or permissible use of force. Second, by redefining police brutality as torture, legislatures will highlight the intensity of the mistreatment a victim suffers, and the distinctive harm of violence when the state agents enact it. If the limits of our language are the limits of our world, our legal system has failed to understand the full horror of police brutality in part because we lack the proper language to describe it. The proposed statute provides a name for a particular kind of terror and cruelty police brutality inflicts without creating yet another offense that can be deployed against private individuals.

Download

Share

COinS