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Posse Comitatus


A newsletter about sheriffs and the political power of law enforcement

Elected Versus Appointed Sheriffs, Part 2


The National Sheriff Association argues that sheriffs are the original form of democratic policing. Their arguments fall into two main categories. First, elected sheriffs provide an essential check on other elected county officials. And second, elected sheriffs are democratic institutions, which allow the community direct input into law enforcement policy and practice.
 
But, there are good reasons to rethink the role of electing sheriffs, which the NSA touts is “consistent with our nation's democratic history, traditions and historical practices.”
 
To first address the historical argument: The position of the sheriff as originally created in England (“shire-reeve”) was not elected but rather was an appointed extension of the crown, just as the Sheriff of Nottingham represents the imperial and royal power of the purse in Robin Hood stories. As the title of sheriff floated across the Atlantic to what would become America, a strong preference for self-governance and rule by the mercantile elite – a contrast to royal rule – meant that the sheriff role, along with most other county positions, became an elected position. By the time of westward expansion, sheriffs were widely elected and the position became a way to distinguish legitimate business and proprietary interests from scofflaws.
 
The preference for elected sheriffs, as a result, is intimately tied to a preference for American self-governance (limited by race, gender, and class) and does not appear to be originally intended as an affirmative preference for democratic-style law enforcement. In fact, throughout history, most law enforcement was intentionally not democratic. The elected nature of the sheriff’s office was often seen as an indicator of its unprofessionalism, particularly as urban growth meant that city police departments – which relied substantially less on democracy and more on progressive ideas about modernization – transformed in what most of us today consider modern policing.
 
As counties begin to consider changing the sheriff from an elected to an appointed position in response to calls from community members for accountability, it seems like a good time to think about what the benefits of appointed sheriffs could be. The biggest problem in this category is the lack of empirical research. Because there are so few appointed sheriffs – only about a dozen out of over 3,000 sheriffs overall – it’s hard to make evidence-based assessments. The NSA continues to insist that there “CAN BE a decrease in the quality and continuity in the law enforcement services and administration” when sheriffs become appointed (emphasis added). This is simply fact-free. There’s no research either way in terms of sheriffs specifically.
 
Despite the lack of evidence-based research, I think there is still a way to think loosely about the benefits of appointed sheriffs enough to provide a basis for future study. My current thinking is that there are three major considerations:
 
  1. Appointed sheriffs are less likely to advocate for larger and larger budgets.
 
Many sheriffs, as a ploy to gain the votes of deputies and their supporters, run on a specific promise to advocate for a bigger budget, vowing to increase deputy pay and provide other perks, like new uniforms or vehicles, etc. As a political animal, it makes sense that sheriffs would feel an obligation to battle for more money, which they often get, at the expense of other county departments. There’s no incentive for a politician to compromise if the goal is to win elections.
 
But, if the goal is to decrease a sheriff’s budget and perhaps even split up the power of the sheriff’s office more evenly amongst other departments, then an appointed sheriff would better facilitate these objectives. An appointed sheriff has more incentive to cooperate with other county officials – the same people who presumably decide on appointments – and has little reason to want a budget that harms other important county services. Similar, taking away power from an appointed sheriff – eliminating school resource officers or moving jails to fall under county health control – is less likely to generate a political firestorm.
 
  1. Appointed sheriffs are more likely to comply with requests for transparency and investigations.
 
In Los Angeles, the county faces what Inspector General Max Huntsman recently called a “constitutional crisis” in a public meeting with the Civilian Oversight Commission. Los Angeles County Sheriff Alex Villanueva is simply refusing to comply with subpoenas for information and testimony. The county, including Huntsman and the Civilian Oversight Commission, have no law-enforcement-style mechanisms to force him to comply. (Villanueva just lost a lawsuit he filed objecting to the subpoenas; it remains to be seen how this will be enforced if he continues to refuse.) Part of why Villanueva believes he can simply not comply is because he is an elected official and understands himself to be the highest authority on law enforcement.
 
In contrast, there are good reasons to think that appointed sheriffs would not challenge such requests for information. For one thing, an appointed sheriff can be fired and/or easily charged with contempt (should the request progress to a judicial order, for example). Additionally, it’s simply not in an appointed official’s interest to ignore the requests of the county for information. As an apolitical entity, there’s just no reason not to comply. And, presumably, an appointed sheriff would know going into the situation that this was simply part of the job descriptions, not a fight over constitutional and political will.
 
  1. Sheriff elections are inconsistent with equity and justice.
 
This is really the big reason and the one where I expect the most pushback. There are reasons to think that sheriff elections limit the candidates for sheriff rather than expand them. For one thing, candidates for election must live within the county, so there’s no option to recruit or attract talent from other parts of the state or country. (Elected sheriffs generally see this as a positive.) Because the pool of candidates is often small, voters face limited choices, and incumbents often win.
 
More controversially perhaps, sheriff elections are also limiting because they rely on a categorical assumption that law enforcement should obey the majority will, an idea promoted by progressives and conservatives alike. Putting aside the limitations on voting eligibility and access (e.g. felony convictions, registration requirements, long lines), a sheriff could be elected with the support of 51% of the community. In a county where, for example, over 40% of the community experiences systemic discrimination by the elected sheriff – a substantial voting block but not enough to win an election – this means that someone who won by a slim majority of votes in an election that dramatically favors incumbents will have a heavy hand in the daily life of those who did not vote for him. Because we know that Black people, Native American people, and people of color are disproportionately abused, jailed, and killed by law enforcement, this means that white elected sheriffs chosen by a slight white majority are able to justify their racist practices because they can win elections. This is all compounded by the fact that all voting limitations fall disproportionately on Black and Native American people, further diminishing their electoral power.
 
This is not to say that shifting demographics or effective organizing and coalition-building cannot change the outcomes of elections. We know they do. But should people have to suffer up until the moment they can cross that 50% of the electorate threshold? With the growing consensus of evidence-based knowledge about the excesses and harms of law enforcement, that feels increasingly like an unfair burden to ask communities to bear.
 
This argument feels increasingly unpopular in an era where most reform-minded advocates in favor of increased police accountability lean on democratic will. Some scholars have argued that the very problem with law enforcement is that they are undemocratic. And while I would never argue against community input and oversight, I am deeply troubled by assumptions that a majority of eligible voters will opt for policies that are less discriminatory. It’s not clear to me that this is so.
 
As always, I welcome comments from readers and thoughts on what I might be missing. These are still ideas I am developing.
 
 

Other Reading


1. New York sheriffs say they won’t enforce Governor Cuomo’s limits on social gatherings. Sheriff Apple in Albany sensibly points out that, perhaps, it’s better to keep one’s mouth shut than to politicize health.
 
2. In Charleston, South Carolina, Assistant Sheriff Mitch Lucas (who says he’s retiring at the end of the year) working under lame-duck Sheriff Al Cannon, sent an office-wide email arguing his opinion that Sheriff-elect Kristin Graziano doesn’t have the right stuff. After some employees expressed support for their new boss, Cannon calls them “insubordinate.” Certainly, transitions in leadership are always tricky, but Lucas’s jabs feel wholly undeserved and, quite frankly, sexist.
Jessica Pishko @jesspish 
Hate it? Love it? Email me at jesspish at gmail.com
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