Pishko is a lawyer and writer whose research focuses on sheriffs and the political power of law enforcement.
By Matt Keyser
For decades, American sheriffs developed a persona as law enforcement officials who are tough on crime with a lock-‘em-up-and-throw-away-the-key mindset.
Perhaps no sheriff modeled that role more than Joe Arpaio of Maricopa County, Arizona, a man who proclaimed himself “America’s toughest sheriff” for over-the-top approach on crime and his punitive immigration policies carried out over his 24-year career.
But that persona is shifting in recent years as police abuse cases grab national headlines and systemic racism within law enforcement draws the nation’s attention.
By the end of his career, Arpaio faced significant allegations of misconduct, the Department of Justice concluded he oversaw the worst racial profiling regime in the nation, and he was eventually convicted of criminal contempt of court.
Apparently, sheriff departments aren’t immune from the reckoning.
Jessica Pishko is a lawyer and writer whose research focuses on sheriff departments in America. She writes a bi-weekly newsletter on sheriffs and law enforcement called Posse Comitatus. In it she’s written about the “worst sheriffs of the year” and how, for some who hold the position, it’s become a “lifestyle brand.”
“I find (sheriffs) interesting because of their unique role: an intersection between jails and arrests and mass incarceration,” she said. “There’s a lot of information about police and urban policing and a lot less about sheriffs. I felt there was an interesting space to research and write about sheriffs, raise awareness, and in a way have an impact on the system.”
NPPJ spoke with Pishko to discuss the role of sheriffs, how their decisions can impact pretrial detention, and how they can help shape bail reform. This interview has been edited for length and clarity.
NPPJ: Can you explain the role of sheriffs and the effect they have on the criminal justice system?
Jessica Pishko: Sheriffs are interestingly the only law enforcement who controls two different levers, which is the one thing I find very interesting. First, in many places, they’re the primary law enforcement. So they can arrest people, they can pull people over and conduct searches, and in some places they are also the primary investigators in certain types of crimes.
And then at the same time sheriffs exert a lot of control over their jails. In many places they have some control over booking decisions: whether people are booked into jail, whether they’re diverted from jail. They have a lot of control over the conditions of the jail: the cost of phone calls, what kind of visits you can have, whether there’s solitary confinement or not, the extent to which the jail cooperates with ICE (Immigrations and Customs Enforcement).
There’s also a level of civil enforcement on top of that—protective orders in domestic violence situations, gun permitting, in some places they’re animal control—all sorts of civil functions that the sheriff has a lot of different kinds of roles. But that gives them a lot of control over who’s coming in and out of the jail and of the system. So if police are the front door that people enter mass incarceration, a sheriff’s function is in part that front door but also an important valve before people are even charged with a crime or convicted.
They have a really important role where they’re sort of a deciding point after someone is arrested where they can decide: Do we want to detain them? Is that the best thing? Are there other things to do? So it’s sort of an inflection point. I think most importantly is we know those choices have an impact on the ultimate result. We know if people aren’t arrested, they don’t get convicted. And if you arrive at the jail and whether you’re booked, not booked, or diverted has an impact on the outcome, because we know in general that people who are not booked in jail pretrial are more likely to serve less time when they come out of the system.
It’s like each choice along the way has a big impact on what happens at the end of what is like a long tube at the end of the criminal justice system.
I don’t know that sheriffs necessarily think of themselves in that way, but I think one of the goals is to get sheriffs to think of themselves as an inflection point where they have choices along the way to decide what happens to people in the system.
NPPJ: Has there been anything you’ve learned throughout your research that has surprised you?
JP: The one thing that surprises me the most is the amount of power they exert to get new jails built. One of the things that people are looking at in terms of pretrial justice and reducing pretrial detention is reducing the number of people who are held in jails overall. And in those jails about half of those folks are held pretrial. Jails in most counties in America, particularly more rural ones, are like very large public works projects and sheriffs want to get a return on their investment. So they’re pitched to county commissioners and the public as almost a money-making enterprise.
Even if you reduce the number of people held pretrial, sheriffs will hold people for other counties or for the state or for the federal government, and get paid per day for holding those people. They see this as a way of sort of recouping on their investment, and then what they will do is lobby and advocate for even bigger jails.
I think what people have found is that if you build it, they will come. If you build a bigger jail, that jail will fill up. And in some ways that makes sense. If you invest in the infrastructure, sheriffs don’t have an incentive to not have that jail full, because you’re not getting in a sense a full return on your investment.
NPPJ: Since the COVID-19 pandemic began, we saw jail populations decrease and some sheriff agencies take a more proactive approach to keeping people out of jail. I’m thinking of cite-and-release or diversion programs, for example. Has that trend continued nationwide?
JP: In the spring we saw there were a lot of places where they tried very hard to decrease jail populations. It wasn’t every single county, but it was in the vast majority of counties that police started issuing more cite-and-release. And generally, sheriffs were booking less people into their jail. But what has essentially happened is the push to do that has stopped. Now in most places jail levels have gone right back up to what they were pre-COVID. Some of this is a combination of other things. Some of it is they’re not able to get people through the system. They stopped cite-and-release for certain types of infractions. So the push to not book people has gone down. And in addition, the court systems have remained really backed up. So what you have now is jail populations going right back to where they were pre-COVID.
NPPJ: What sheriffs are taking more of a reform-minded approach to pretrial detention?
JP: Sheriff Ed Gonzalez in Harris County has worked really hard. He has a difficult position because he is working in a system where he needs to get more people to cooperate to move people out of his jail. But he has been very outspoken about pretrial reform and the need to reduce the number of people being held pretrial.
There have been a couple of sheriffs who were recently elected, and I’m curious to see what will happen. In Charleston, South Carolina, Kristin Graziano was just elected and she has a very progressive platform with the intent on not just reducing pretrial incarceration but also trying to reduce the size of her jail overall. I think she’s someone who has that goal to move people out. She’s been very outspoken and has been talking to people about how to do that.
I think that since she is elected what we might start to see is sheriffs doing that work and then hopefully other people will run and be similarly inspired. The process really follows a similar path to the prosecutor movement to have more progressive-minded prosecutors.
Of course there is pushback; it’s not a total forward-moving process. But I do think it tends to be easier when you see what other people are doing. Sheriff Gonzalez has told me that he often wishes he had more people to talk to about how to do things differently. There’s not a playbook, so that leaves them trying to invent what they can do.
NPPJ: So it’s almost like they’re trying to invent the playbook for everybody else because others might be hesitant to take their approach.
JP: Law enforcement and sheriffs as a whole aren’t risk takers. And sheriffs are more conservative as a whole than other elected politicians in a county. So it’s not a surprise that they’re waiting to see what works before they make radical changes. From what I’ve seen working with prosecutors and thinking and talking about sheriffs, the thing that I’ve seen is the difference is there’s a lot of reluctance to try things because there’s a deep concern that it won’t work, or it’s not how law enforcement has done things in the past. So the law enforcement mindset is very strongly backwards looking, as well as forward looking.
And I think prosecutors were that way, but we’ve seen enough prosecutors get elected with forward-looking platforms that each one is sort of upping the ante. But we haven’t quite seen that with sheriffs yet.
NPPJ: We’ve seen a lot of talk about bail reform lately. How can sheriffs be more involved in advocating for or shaping bail reform?
JP: On the advocacy front, they can certainly do more in terms of talking about bail reform, because sheriffs are politicians and they do have a political platform. And in many places what they say is very important. So I think just to talk about bail reform is a really important thing they can do, which is something Sheriff Gonzalez is doing.
Another thing is because in so many places sheriff exercise a lot of control over whether counties build new jails is to discourage sheriffs from building them, because if you build new jails the urge to put people in them pretrial is very high. In some places they won’t book people for certain crimes pretrial because they have no room. So your county commissioners who are making these decisions, or the courts, they don’t really know what’s going on in the jail besides what the sheriff tells them.
The other thing sheriffs can do is enact policies. Now this is where it depends more upon the state and the county, but they can do more to enact policies that would just reduce the number of people arrested and booked pretrial. In places where they’re the primary police, they can implement more cite and release. In places where they can do so, they can implement more diversion. They can just not book people for certain kinds of misdemeanors. They can decide that when a person is presented at the jail that they are going to ROI people arrested for certain misdemeanors and not put them in jail and instead give them a court date.
This is something in Texas they’re limited in, but in other states they have the ability that they can say, “Well, we’re not going to put any more people in right now. We’re going to give people a court date.” So there are places where they can implement some sort of pretrial reform on a limited basis.