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ARE SHERIFFS ABOVE THE LAW?  
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Linda Greenhouse
September 12, 2024
The New York Review
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_ County sheriffs are useful to the right. They appear regularly as
talking heads on conservative media, especially on the subject of
immigration. Many vignettes of sheriffs in action are dramatic and
alarming. But how representative are they? _

Joe Arpaio at a St. Patrick’s Day Parade in Phoenix during his last
year as sheriff of Maricopa County, Arizona, March 2016, Jennifer
Mack/Alamy

 

REVIEWED:
The Highest Law in the Land: How the Unchecked Power of Sheriffs
Threatens Democracy
by Jessica Pishko
Dutton, 468 pp., $32.00

For many of us who grew up watching the weekly adventures of Robin
Hood on a black-and-white television screen, the word “sheriff”
conjures the dogged lawman of Nottingham chasing the noble bandit
through Sherwood Forest. Today’s most recognizable sheriff may be
the rabidly anti-immigrant Joe Arpaio of Maricopa County, Arizona.
Thrown out of office by voters in 2016 after twenty-four years and
convicted of criminal contempt for disobeying a court order to stop
arresting anyone he suspected might be undocumented, Arpaio was the
recipient of President Donald Trump’s first pardon. His outrageous
behavior—he once sent a “posse” to Hawaii at taxpayer expense to
examine Barack Obama’s birth certificate, which he declared
fraudulent—makes it easy to dismiss him as an anomaly.

But in _The Highest Law in the Land_, Jessica Pishko’s eye-opening
account of the modern-day American sheriff, Arpaio is less anomaly
than symbol, his excesses differing only in degree from those of other
sheriffs who wield power less flagrantly but often with no more
accountability. Because almost all of the country’s more than three
thousand sheriffs are elected to serve a single county—some with
fewer than one thousand residents and others with
millions—situations differ widely, and a national picture of how
they exercise their power is elusive. But power is what all sheriffs
have in common. They and their deputies run county jails that admit
some 10 million people a year. Sheriffs report to neither the local
police chief nor any other elected official, so it’s no wonder that
many come to see themselves, and to behave, as a law unto themselves.

Pishko, a journalist with a law degree from Harvard, builds her
argument for widespread abuse from a series of snapshots. She
describes how the “Posse Comitatus”—the “power of the
county”—movement of the 1970s, in which members of hyperlocal
vigilante groups refused to pay taxes and declared themselves free of
federal authority, burnished the position of sheriff. More recently a
prominent sheriff vocally supported a Nevada cattle rancher, Cliven
Bundy, in his highly publicized armed standoff with the federal Bureau
of Land Management. Another sheriff defended the thirteen members of
Michigan militia groups charged with plotting to kidnap Governor
Gretchen Whitmer in 2020.

The alliance between sheriffs and groups operating outside the law
goes back many decades. In the post–Civil War South, sheriffs were
often enforcers of white supremacy through lynchings and suppression
of the Black vote. The racist, antisemitic “Christian Identity”
movement that emerged during the 1950s found allies among sheriffs,
who were also drawn to the notion of posse comitatus that captivated
portions of the midcentury political right.

The most consequential development Pishko chronicles is the
collaboration that has evolved between sheriffs and the National Rifle
Association in recent years. This affinity may seem obvious, but it is
actually something quite new. As law enforcement officials, sheriffs
once resisted the gun rights cause. In 1986, for example, the National
Sheriffs’ Association opposed the Reagan administration’s effort
to roll back existing gun control measures.

In Pishko’s account, the turning point came with the passage in 1993
of the Brady Act, a federal law that required each local
jurisdiction’s “chief law enforcement officer” to perform
background checks on gun purchasers. In almost every state, that duty
fell to the county sheriffs, who by habit and history tended to be
skeptical of federal authority. Because the law’s strong bipartisan
support had deterred the NRA from open opposition, the organization
sought and readily found sheriffs willing to carry the Second
Amendment flag into constitutional battle against the federal
government. Lawsuits challenging the Brady Act were brought in the
name of sheriffs in six states; the one that made it to the Supreme
Court was filed by Sheriff Jay Printz of Ravalli County,
Montana. _Printz _v._ United States_, decided in 1997 with a
majority opinion by Justice Antonin Scalia, held that the federal
government lacked the constitutional authority to “commandeer” the
states into doing its law enforcement work. That the Constitution says
nothing about sheriffs did not matter. For the purposes of the Brady
Act, the sheriff _was _the state.

The _Printz _decision is remembered today mainly for a concurring
opinion by Justice Clarence Thomas that urged the Supreme Court to
reconsider its long-held view that the Second Amendment did not confer
an individual right to own a gun. Thomas’s suggestion, startling in
its time, blossomed eleven years later into _District of
Columbia_ v. _Heller_, a decision that recognized that right for the
first time and launched the Court on its project to raise the barriers
to firearms regulation ever higher.

In retrospect _Printz _might also have been understood as a
coming-out party for the country’s sheriffs, identifying them as
firmly anchored in mainstream conservative politics rather than
lurking at the extremist fringes of posse comitatus. To honor his work
on the case, the NRA named Richard Mack, the Arizona sheriff who had
recruited his peers for the Brady Act litigation and would later stand
with Cliven Bundy, as its 1994 Law Enforcement Officer of the Year.
Mack is a leading advocate of the view that the “constitutional
sheriff” possesses the authority to nullify federal laws. He no
longer holds office, but in his self-published book _The County
Sheriff: America’s Last Hope _(2009), he writes, “The federal
government, the White House, or Congress do not hire us, they cannot
fire us, and they cannot tell us what to do.”

I covered the _Printz _case for _The New York Times_, and I
certainly didn’t understand it as a showcase for the emergence of
the new sheriff. My focus was on what the decision meant for the
balance between federal and state authority. That such a vital issue
would be brought to the fore by, of all things, a county sheriff
struck me as simply a quirk. I was then, as I suspect many are now,
simply unaware of the part that sheriffs play in American law
enforcement.

I wish I had known, for example, that in one third of US counties the
sheriff’s office is the largest law enforcement agency. Sheriffs
employ a quarter of all sworn law enforcement officers and control 85
percent of local jails. Their offices are responsible for 30 percent
of killings by law enforcement, and at least one thousand inmates die
every year while in sheriffs’ custody. While many sheriffs’
offices are modest in size, some are huge: the scandal-plagued Los
Angeles County Sheriff’s Department, the country’s biggest,
employs an astonishing 20,000 people with an annual budget of nearly
$4 billion, and its jails hold a daily average of 13,000 inmates. One
third of states impose no educational or law enforcement training
requirements for the job, while in most others a successful candidate
for sheriff can wait until taking office before fulfilling any
requirements that do exist.

Sheriffs, 90 percent of whom are white men, commonly believe that
their elected status puts them above police chiefs. In their eyes,
local police are mere “code enforcers,” while they are the
people’s authentic representatives, since they have not been
appointed by bureaucrats. As a long-serving Louisiana sheriff once
told NPR:

I have no unions, I don’t have civil service, I hire and fire at
will. I don’t have to go to council and propose a budget…. I’m
the head of the law-enforcement district, and the law-enforcement
district only has one vote, which is me.

The word “sheriff” derives from a compression of two English
words: “shire,” for county, and “reeve,” for local official.
(To this day the adjective that refers to things pertaining to
sheriffs is “shrieval.”) In the old days one of the office’s
primary duties was to collect taxes for the monarch. The early history
of sheriffs in the United States is murky and, according to Pishko,
shrouded in self-serving mythology:

Sheriffs—white-hatted and often on a horse—elided with other
popular Western figures, the cowboy and the outlaw, and became
fixtures in the American mythology of masculine independence.

The Trump administration found this image useful, embracing sheriffs
as natural allies. “The humble county sheriff, that American icon,
became the soldiers in Trump’s culture war,” Pishko writes. A
widely publicized speech by Trump’s attorney general Jeff Sessions
at the 2018 annual meeting of the National Sheriffs’ Association
played directly to his audience’s self-regard. “Since our
founding, the independently elected sheriff has been the people’s
protector who keeps law enforcement close to and accountable to
people,” Sessions said. “The office of sheriff is a critical part
of the Anglo-American heritage of law enforcement. We must never erode
this historic office.” He added, “We want to be partners. We
don’t want to be bosses. We want to strengthen you and help you be
more effective in your work.”

The speech was about more than history, Pishko notes:

It was about how sheriffs see themselves as part of a grand tradition
based on a nostalgia that elides the history of violence toward Native
people, immigrants, Black communities, and people of color.

Some civil rights groups took exception to the attorney general’s
“Anglo-American heritage” reference. As it turned out, the phrase
was not in the advance text of the speech that the Justice Department
distributed. Sessions evidently added it on the fly. “The sheriff as
an institution represents an imagined history, a lost cause that did
not ever exist,” Pishko writes. It is “a fairy tale that white
Americans like to tell themselves.”

If it’s a fairy tale, it’s one with consequences. At any given
time local jails hold some 700,000 people who are awaiting formal
charges, a trial, or transfer to a state prison. These jails, under
the control of sheriffs, operate with little oversight or staff
training and without requirements for medical care. “Jails are on
the front lines of mental illness and disordered substance use,”
Pishko observes, “which gives sheriffs even more power over people
who are largely ignored by society and who lack the resources to get
help outside of the criminal legal system.”

A 2011 Supreme Court case, _Brown _v._ Plata_, had the unintended
consequence of illuminating the problem. In a rare liberal victory,
the Court upheld a lower court’s order requiring California to
reduce what the justices called an “exceptional” level of
overcrowding in its state prisons. As a result, many inmates were
transferred to county jails. The transfers, which went by the
bureaucratic name “realignment,” proved a disastrous experiment.
The placement of long-term state convicts in poorly managed local
jails produced a surge of violence, with inmate-on-inmate homicides up
by 46 percent compared with the preceding seven years. Asked about the
eleven inmates who died while in his custody in a single year, the
sheriff of Fresno County dismissed the deaths as “inevitable.”

Despite their disdain for the federal government, sheriffs have been
valuable partners for the US Immigration and Customs Enforcement
agency. They screen new arrivals to their jails and notify ICE when
they find an expired visa or an existing deportation order. And the
immigration crisis has been a budgetary boon for sheriffs, who lease
jail space to ICE at up to $200 per inmate per night for holding
people who await deportation hearings.

At the core of Pishko’s argument that “the unchecked power of
sheriffs threatens democracy”—to quote her book’s subtitle—is
that sheriffs as a group have become the right wing’s uniformed
shock troops. Certainly sheriffs are useful to the right. They appear
regularly as talking heads on conservative media, especially on the
subject of immigration, as they are unconstrained by the rules that
restrict members of the US Border Patrol from speaking their minds.
Pishko reports on rallies and other events she attended as a
journalist, including a gathering of dozens of sheriffs on a private
ranch in Arizona near a section of Trump’s uncompleted border wall
in June 2021. Convening to end the Biden border crisis, each of the
Stetson-hatted sheriffs gave a brief speech to display his
anti-immigrant credentials. “I am not sent to you by the
government,” one New Mexico sheriff declared. “I am sent to the
government by you.” This sheriff’s antigovernment bona fides were
beyond question; early in the Covid-19 pandemic he had deputized
members of a local church so they could hold in-person services
despite restrictions on such gatherings.

These vignettes of sheriffs in action are dramatic and alarming. But I
was left uncertain about how representative such scenes actually are
and how many of the country’s thousands of sheriffs have taken the
path of Mark Lamb, the sheriff of Pinal County, Arizona, who led the
border rally that Pishko describes. In 2021 Lamb, something of a
right-wing media star, founded an organization called Protect America
Now to “support Sheriffs and law enforcement members that believe in
God, Family and Freedom.” At its peak the organization counted
around eighty sheriffs as members. As of this year, Pishko reports,
its website and Facebook page are no longer active. In July, Lamb lost
decisively to Kari Lake in a Republican primary for Arizona’s open
US Senate seat.

And while Richard Mack traveled from Arizona to Nevada to support
Bundy’s standoff with the government, the sheriff of Clark County,
Nevada, where Bundy lived, refused to support the rancher. In 2023 a
“sheriffs first” bill that would have required federal law
enforcement officials to “check in” with the county sheriff before
conducting a search or making an arrest came before the Montana
legislature. It was defeated.

If the moment for sheriffs as an independent force on the political
right has passed, as these data points suggest, might it be because
sheriffs have been folded so comfortably into Trump’s MAGA world
that they have effectively merged with the modern Republican Party? Is
the real cause for worry perhaps even more acute than Pishko suggests:
not that sheriffs are above the law—“the highest law in the
land,” of the book’s title—but rather that they
have _become_ the law?

Pishko ends her book with an examination of reform efforts, which
despite good intentions have largely failed. The enormous Los Angeles
County Sheriff’s Department provides a striking example of how hard
it is to bring about change even under a sustained critical public
spotlight. It has been years since it became known that among the
department’s 10,000 sworn deputy sheriffs are members of gangs with
such names as “the Punishers” and “the Grim Reapers” who
commit violent offenses both on the streets and inside the jails.
Despite multiple investigations and reports, the problem persists.

In thirty-three states, the office of sheriff is provided for and
defined in the state constitution, essentially requiring legislatures
to keep their hands off and providing cover for those legislators who
want to cultivate rather than alienate the county sheriff. “The idea
that sheriffs are uniquely above the law cultivates a myth that
sheriffs not only do not need reform but that reform is anathema to
the historical nature of the office,” Pishko writes. “The culture
of impunity is so entrenched in the sheriff’s office that even with
legislation, oversight, and electoral success, change comes only in
small steps.”

Since sheriffs must face voters at regular intervals, it seems logical
to conclude that the bad ones can be defeated at the polls. Logical
but naive. It took ten years of concerted organizing in the Latino
community to defeat Joe Arpaio. Most elections for sheriff are
uncontested, and in the contested elections, the incumbent wins 90
percent of the time, with the result that tenures often last for
decades. (One notable exception is an election that will take place
this November in Sagadahoc County, Maine. Last year a county resident
with known psychiatric problems, Robert R. Card II, went on a rampage
and killed eighteen people in Lewiston. It was the worst mass shooting
in Maine’s history. Sheriff Joel Merry is being challenged for
reelection by one of his deputies, Sergeant Aaron Skolfield. Both have
been severely criticized for not having ordered the seizure of
Card’s firearms.)

A journalistic investigation last year brought to light a self-named
“Goon Squad” of sheriff’s deputies who for years had been
systematically brutalizing Black residents of Rankin County,
Mississippi. The sheriff, Bryan Bailey, denied all knowledge of the
behavior, which his deputies had proudly chronicled in graphic
WhatsApp chats. The men, he said, had gone rogue. A successful Justice
Department prosecution led to prison sentences of ten to forty years
for five deputies and a former police officer. Last November, Bailey
was reelected without opposition to a fourth four-year term.

_LINDA GREENHOUSE is a Senior Research Scholar at Yale Law School and
a frequent contributor to The New York Times’s opinion pages. The
third edition of her book The US Supreme Court: A Very Short
Introduction was published last year. (October 2024)_

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