Abstract
Racial justice is one of the most pressing issues in America today, and police brutality is its flashpoint. Incident after incident ofpolice brutality confirm that police harm with impunity those whom they have a duty to protect. Existing criminal statutes are filled withdiscretionary standards that give officers deference, while civil remedies require victims to surmount the doctrine of qualified immunity. To increase accountability for police brutality, legislatures and courts have so far focused on reducing or eliminating these proceduralhurdles. But their changes have not significantly affected the status quo. Police impunity continues to represent a peculiar gap in ourotherwise over-inclusive legal system.
This Article proposes a new way of increasing accountability: a new offense for police brutality. Existing criminal law offenses, suchas assault, battery, and homicide, fail to capture the unique nature of violence when inflicted through police brutality. Instead, criminal lawmust highlight the particularly heinous conduct involved in police violence. I propose a model criminal statute specific to this violence,classified as torture committed by public officials. The statute bans acts committed with the intent to cause severe physical or mental painor suffering during searches and seizures as well as within jails and prisons. This statute combines the deterrent effects of criminal lawwith the social signaling of a collective condemnation and punishes a crime committed by those who enact violence while cloaked withstate authority.
Using the proposed statute to address police brutality offers significant benefits. First, the statute establishes an objective standard forprosecution in place of existing laws that defer to officer and departmental discretion. Second, by redefining police brutality as torture,legislatures will highlight the intensity of the mistreatment a victim suffers and the distinctive harm of violence when state agents enact it. If the limits of our language are the limits of our world, our legal system has failed to understand the full horror of police brutality in partbecause we lack the proper language to describe it. The proposed statute provides a name for a particular kind of terror and cruelty policebrutality inflicts without creating yet another offense that can be deployed against private individuals.
