The Death Penalty on the Streets: What the Eighth Amendment Can Teach About Regulating Police Use of Force

Authors

Jelani Jefferson Exum, St. John's University School of LawFollow

Document Type

Article

Publication Title

Missouri Law Review

Publication Date

2015

Volume

80

First Page

987

Abstract

(Excerpt)

The use of force by police officers has traditionally been analyzed through the lens of Fourth Amendment reasonableness. The Supreme Court has decided that the proper question regarding the excessiveness of police force is whether the police officer acted as a reasonable law enforcement officer. When that police force is fatal — what this Article deems the death penalty on the streets — the legal question is the same, leaving us with an analysis that requires a heavy reliance on the officer's version of events and a host of disagreement on what constitutes appropriate police action. Reasonable minds can, and do, disagree on what constitutes reasonable police action because the reasonableness standard is divorced from any notion of what procedures police ought to follow before turning to deadly force. The August 9, 2014 killing of Michael Brown in Ferguson, Missouri, and countless unarmed others before and since him who have lost their lives at the hands of police, brings this unsatisfactory analysis to the forefront. The lack of clarity in the use of force reasonableness standard often leads to reasonableness being the default legal conclusion in cases brought against police officers, leaving victims of deadly police force without justice.

This Article offers punishment as another lens through which to view police force. The Supreme Court has consistently rejected arguments that the Eighth Amendment is the appropriate vehicle for dealing with excessive police force claims. However, reconceptualizing the use of deadly force by police officers as punishment provides a new understanding of the gravity of deadly police force and adds necessary substance to the reasonableness analysis. When police force is likened to punishment, the use of fatal force by police officers can be considered the administration of the death penalty on the streets, absent the procedural protections and focus on human dignity given in the criminal justice system through the Eighth Amendment. When considered in the context of punishment, the reasonableness analysis can be transformed to incorporate the value of human dignity and focus on protections against fatal police force that ought to be in place to protect the lives of all individuals.

This Article argues that the reasonableness standard applied to deadly police force must ask whether a police officer was able to, and did, use non-fatal force before turning to deadly force. It is with an eye to this more reasoned approach to reasonableness that this Article builds a case for incorporating Eighth Amendment values into the Fourth Amendment reasonableness analysis of excessive police force. Part II of this Article criticizes the traditional Fourth Amendment reasonableness analysis and argues that, rather than assessing how a reasonable officer would handle a situation, we can redefine the focus of the inquiry to the types of methods employed to avoid the loss of life. In Part II, the stories of Michael Brown and others are explored in order to show the unreasonableness of the current reasonableness standard for claims of excessive police force. Part III of the Article compares police force to punishment and explains that, by applying an Eighth Amendment "respect for human dignity" standard to analyze the use of fatal force by police officers, we can avoid some of the pitfalls of the current excessiveness analysis. As Part IV explains, the Supreme Court goes to great lengths to spare the lives of even our criminals. Part IV also discusses the protections given defendants in the death penalty context in order to show that the death penalty procedures developed by the Supreme Court are based upon its view that the Eighth Amendment requires a respect for human dignity, which is in stark contrast to the death penalty on the streets. When the government is permitted to take an individual's life, it must do so in a manner that respects that life. Finally, this Article concludes by positing that procedures and guidelines regarding non-fatal uses of force must be followed before an officer can reasonably take the life of an individual. In this way, the death penalty on the streets will be a form of punishment that is narrowly applied and respectful of the lives of all people, no matter their behavior.

Comments

Available at: https://scholarship.law.missouri.edu/mlr/vol80/iss4/7/