THAT IS ENOUGH PUNISHMENT: SITUATING DEFUNDING THE POLICE WITHIN ANTIRACIST SENTENCING REFORM.

• Author: Jefferson-Bullock, Jalila

Introduction: Understanding Calls to Defund the Police 626 I. Policing in the United States: Systemic Racism Racial Trauma, and the Need to Rebuild Democracy 631 A. U.S. Policing Is Systemically Racist 632 i. The Racist Roots of Policing 632 ii. Police Funding Is Systemically Racist 633 B. Policing and Racial Trauma 636 i. Background Cultural Trauma 638 ii. Cultural Trauma from the Routine 639 C. Rebuilding Democracy 641 II. An Unreasonableness View of Policing 645 A. The Traditional Fourth Amendment Reasonable Force Standard 645 B. The Failures of the Reasonableness Standard 649 i. Breonna Taylor 650 ii. Michael Brown 656 iii. Amadou Diallo 659 iv. Aaron Campbell 659 III. Policing as Punishment 662 A. The Eighth Amendment and Human Dignity 662 B. Why the Eighth Amendment Should Apply to Policing 664 IV. Reforming Policing Is Reforming Punishment 667 A. Retribution and Quantitative Proportionality 670 B. Retribution, the Eighth Amendment, and Qualitative Proportionality 671 C. Deterrence and Meaningfulness 673 V. Sentencing Reform Efforts 674 A. Judicial Discretion and Sentencing 674 B. Defunding: A Different View of Reform 677 Conclusion: Antiracist Sentencing Reform Includes Defunding the Police 679 INTRODUCTION: UNDERSTANDING CALLS TO DEFUND THE POLICE

During the summer of 2020, the police killings of George Floyd, Breonna Taylor, and others created a movement that unearthed a reality that Black people in the United States have always been aware of: systemic racism, in the form of police brutality, is alive and well. While the blatant brutality of George Floyd's murder at the hands of police is the flame, (1) the spark was ignited long ago. One need only review the record of recent years--the killings of Eric Garner, Michael Brown, Tamir Rice, Antwon Rose, Alton Sterling, Philando Castile, Breonna Taylor, and countless other souls have led to this particular season of widespread protests and organized demands for change. (2) This is a historical moment of tremendous civil unrest, deemed by many as a revived Civil Rights Movement. (3)

While various reform-seeking legislative measures have been in process for the past several years, this particular moment is different and calls for a different response. Protests and demonstrations erupted on stages large and small, drawing attention to social justice issues. (4) From schools to small businesses to large corporations, institutions across the country issued statements pledging themselves and their finances to antiracism work. (5) As the focus turns from necessary protest to tangible progress, what remains unanswered is how best to proceed. Professor Ibram X. Kendi described antiracism as "a radical choice in the face of this history, requiring a radical reorientation of our consciousness." (6) One such "radical choice" is defunding the police.

Police defunding can follow many models, but two have emerged most prominently among activists and scholars. Under one, jurisdictions completely disband entire police departments, offering leaders the opportunity to begin afresh and draft community-led public safety prototypes that do not include police at all. (7) Under the other, police departments' coffers are divested, to varying degrees, and funds are reallocated to various social services to reduce, but not wholly eliminate, police contact with the community. (8) While different, these models have been described as analogous, as both seek to shift sole responsibility for public safety away from police departments. (9)

Regardless of the ultimate design, the fundamental idea behind defunding the police is that the United States' system of policing is systemically racist and eradicating that racism requires dismantling. Diversion of police funding, which is often the most expensive line item of large cities' budgets, (10) would shift focus "away from surveillance and punishment, and toward fostering equitable, healthy, and safe communities." (11) Funding would instead be diverted to, among other things, strengthen crisis care capacity and hire and train social service workers, with the hope of decreasing negative interactions with police and bettering community relations. (12) In essence, the modern call to defund the police is actually "a call to reinvent our criminal justice system to better honor our national pledge of equal justice under the law." (13)

While there has been increased support for police reform and recognition of systemic racism throughout the country, the particular call to defund the police has created considerable controversy and has not reached widespread consensus. (14) Although the long-held belief in police "super powers" is crumbling, (15) the majority of Americans do not support wholesale defunding and instead advocate for specific reforms; (16) 35% of participants in a 2020 Pew study recorded that the police use the correct amount of force in every situation, compared to 45% in 2016. (17) Likewise, the share of people who believe police treat racial and ethnic groups equally dropped from 47% in 2016 to 34% in 2020, and the share of those who thought the justice system should hold officers accountable when misconduct occurs rose to 44% in 2020, compared to 31% in 2016. (18) A 2018 poll found that two-thirds of people in the United States support banning chokeholds. (19)

Most Americans do support disciplining police misconduct and lessening protections against legal action. (20) Seventy-four percent of Americans believe that police violence against the public is a problem, and 42% believe it is a major problem. (21) Nevertheless, only 25% of Americans endorse decreased spending on police forces. (22) In many ways, polling reveals a public misunderstanding of what defunding the police actually means. Polls indicate that people balk at the term "defund the police" but appear more open if directly asked if they support shifting money allocated to police toward specific social services. (23)

This Article argues that discomfort with defunding the police is misplaced. Understanding policing as a form of punishment clarifies how reforming policing--including defunding the police--fits within the broader, more widely accepted sentencing reforms that have taken place in recent years. The Supreme Court has refused to recognize policing as punishment, and several scholars have commented on the Court's failure to do so. (24) Adding to this conversation, this Article asserts that policing is punishment and demonstrates that policing reform is rightly situated within discussions of overall sentencing reform. Sentencing reform supported on both sides of the political aisle recognizes that jurisdictions have spent money on incarceration but have not actually accomplished punishment goals. When resources are re-directed to support legitimate punitive goals better, then not only are resources saved but also systemic racism can be addressed.

As it stands, purposeless punishment (25) only serves to support institutional bias. The same is true for retaining the current system of policing. Once one understands that the current policing model in the United States facilitates purposeless punishment, its only remaining plausible objective is to sustain a system of racial oppression. To truly begin eradicating racism in policing, it is imperative to place policing reform in the broader context of sentencing reform and begin approaching all forms of punishment with an antiracist lens.

Part I of this Article addresses the racist roots of policing in the United States and explores how racism is evident in police funding structures. It explains the racial trauma associated with policing practices and argues that defunding and restructuring policing is necessary for rebuilding a shattered democracy. Part II confronts the Supreme Court's traditional Fourth Amendment analysis of excessive force claims against police officers to reveal the failures of that approach, examining the cases of Breonna Taylor, Michael Brown, and other Black people who have been killed by the police. Through these tragic cases, the inadequacy of treating police use of force only under a Fourth Amendment seizure analysis is strikingly evident. Part III develops the argument that the courts should treat certain actions by police as punishment subject to Eighth Amendment protection. Part IV connects this punishment view of policing to sentencing reform efforts to support the view that reforming policing fits within the punishment reform context. Because recent sentencing reforms have not adequately addressed systemic racism, Part V ends this Article by discussing the flaws in sentencing reform and the work that still needs to be done to address racism in all types of state-imposed punishment --including policing.

1. POLICING IN THE UNITED STATES: SYSTEMIC RACISM, RACIAL TRAUMA, AND THE NEED TO REBUILD DEMOCRACY

   It is no secret that U.S. policing is systemically racist. The U.S. policing model is to target discriminatorily, surveil persistently, prosecute fervently, and punish vigorously. This includes using deadly force against individuals through a variety of means, but most frequently by shooting. (26) In 2019, police officers fatally shot 999 people. (27) Unsurprisingly, the bulk of the oppressive effects of this "punitive and primitive," (28) heavy-handed approach to criminal justice is borne by Black people. (29)

   1. U.S. Policing Is Systemically Racist

      Police officers kill Black people at more than twice the rate of white people. (30) These racially disparate outcomes are no surprise given the roots of policing in the United States. Proponents of police defunding rely, in part, on U.S. policing's origin story and historical ties to slavery in arguing for a complete overhaul of policing. (31)

      i. The Racist Roots of Policing

      It is well-documented that modern policing's ancestry lies in slave patrols. (32) During slavery, "[t]he use of race as a 'free-floating proxy' for criminality"...