Though the title of sheriff comes historically from England, the role is inextricably linked to the myth of the American West. It is also inextricably linked to the racist foundations of democracy in this country, according to Jessica Pishko in her new book, “The Highest Law in the Land: How the Unchecked Power of Sheriffs Threatens Democracy.” Pishko writes about the so-called constitutional sheriffs movement, which holds that sheriffs, because they are elected directly by the people, are beholden to no authority, and can uphold the Constitution as they see fit. We talk to Pishko about the history of sheriffs, and what the role could mean under a second Trump administration.
Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. Though the title of sheriff comes from England about 1,000 years ago, the role has been inextricably linked to the myth of the American West. According to the journalist and lawyer Jessica Pishko, the office of sheriff is also part of the racist foundations of our country. Pishko’s new book is called “The Highest Law in the Land: How the Unchecked Power of Sheriffs Threatens Democracy.” She wrote about the so-called constitutional sheriffs movement, which holds that sheriffs, because they are elected directly by the people, are beholden to no authority and can uphold the Constitution as they see fit. Jessica Pishko, welcome to the show.
Jessica Pishko: So happy to be here.
Miller: What do self-described constitutional sheriffs mean when they say that phrase?
Pishko: I think it’s really important that you added the “self-described” part, because the name constitutional sheriff is intended to be a little bit confusing. The Constitution part of that name indicates the fact that these sheriffs believe that their job is to enforce the Constitution – by which they are talking about the original Constitution and the first 10 amendments. So, none of the amendments after 10 count …
Miller: Just to stop you there … They’re explicit about that? Amendments, post-Civil War, for example … they explicitly say that they have nothing to do with those, or is it more subtle than that?
Pishko: I would say it’s more subtle than that. The idea of the “original” Constitution, which is the text of the Constitution plus the first 10 amendments, has a far right mythology behind it. A lot of patriot groups like Oath Keepers, militias and constitutional sheriffs all will discuss what they would call the “original” Constitution. So when they say that, what they really mean is something like what the founding fathers drafted is the Constitution.
As a result, by virtue of saying that, they are discarding the amendments after 10, which obviously is a lot of amendments. It’s all the ones post-Civil War: The 19th Amendment, the amendment that creates income taxes. Yes, there’s a lot that gets excluded when they say that, but it also helps to explain why their ideology is the way it is.
Miller: Over the years, the sheriffs have used different terms to describe what they see as their power to stand between the federal government and the people, or to interpret laws as they see fit. So we can take these one by one: interposition and nullification. What is interposition?
Pishko: Interposition is a discarded legal theory. I want to be clear, it’s not a legal theory that lawyers would argue in court. But interposition is the non-existent legal theory that says when the federal government, the state government or any sort of agency – typical examples are the ATF or the IRS – come to arrest citizens or come to your county in order to do something, that the sheriff has the right, and actually the duty – so it’s not just that the sheriff ought to, but the sheriff must – [to] stand in between his residents and that federal agent.
So the idea is something like, if the FBI comes to investigate an individual, that the sheriff has the duty to tell that FBI agent, “You can’t come in here and talk to residents in my county without getting my approval first.” That’s the general idea. It’s like the sheriff is serving as an intermediary, but it also reinforces this idea that the sheriff, serving as the chief law enforcement officer of the county, can control who goes in and out of the county and what laws exactly are being enforced.
Miller: Some of these terms are overlapping, but that gets a little bit closer to nullification. What do they mean when they use that word?
Pishko: Nullification … and as you properly point out, these are two words that are closely related and usually used together. Nullification is the idea that some local government or state government can decide that they just don’t want to follow a federal law or state law. The best example there is to talk about school desegregation. This is really the first time it came up. When the Supreme Court decided the case of Brown v. Board of Education in the 1950s, a bunch of state governments said, well, we don’t think that this case was properly decided, so we are just not going to do it. We’re not going to desegregate our schools. And that’s considered a form of nullification.
Again, this is not a real legal theory. You can’t go into court and argue nullification, but the idea that you are just not going to do things that you think are unconstitutional is certainly something that, especially on the right, has influenced local politics for a long time.
Miller: The performative aspect of this seems unique. And by “this,” I mean the constitutional sheriff movement in recent years. And we can talk about the visuals of this or the social media presence of this, but I am curious how what you’re talking about is different in practice from other kinds of executive discretion that other elected officials may exercise? I’m thinking about, say, prosecutorial discretion on the part of district attorneys, where it’s a question of what they’re going to prioritize. How is what you’re talking about different from that?
Pishko: I agree that, in the first instance when you hear about this, you might think, well, police always exercise discretion – and this is absolutely true. Police and prosecutors exercise discretion. It’s a really important part of the criminal legal system. Every time you speed, the police officer does not have to give you a ticket. This is well established. So I agree that this is something that the use of discretion is always exercised by law enforcement.
In reporting the book, though, what I found is different is that what constitutional sheriffs are doing is not really what we would call an exercise of discretion, which generally involves something like doing justice or making decisions such that they feel you’re getting to the best outcome. The idea behind prosecutorial discretion is, “Well, I’m going to drop this case because it feels like this would not be in the best interest of justice.” That’s what prosecutors say ...
Miller: Or, I only have so many prosecutors, so I’m going to focus on violent crimes, even though I wish I could do all of them, say?
Pishko: Right. And they would say, “Well, it’s more fair in the interest of justice, it’s more just that I do this.” What constitutional sheriffs are saying is not something that is necessarily interested in an idea of justice or even the idea of what’s best for their community, but rather an idea of what the original Constitution demands. So that, while sheriffs, indeed, are elected and they also, indeed, run on platforms saying they will do “XYZ,” very similar to prosecutors … Sheriffs may run and say, “we’ll reform the jail,” or “I will arrest more people for traffic crimes,” or “I will arrest fewer people for drug crimes.” That is certainly something sheriffs do. The specific thing the constitutional sheriffs are trying to get at, is to impose a specific vision of the world onto their communities and their counties, and it is not really exactly the same as the general exercise of police or prosecutorial discretion.
For that reason, in the book, I do distinguish between constitutional sheriffs – I call them generally far-right sheriffs, this sort of universe of sheriffs who believe in the constitutional sheriff ideas or something similar – and the idea of sheriffs who are elected from the left, saying things like, “we won’t cooperate with mass deportation,” which is also something that happens. In the book, I argue that those are two very different things, because the idea of not participating in mass deportation is not really the same as the constitutional sheriffs imposing their specific vision of the world.
Miller: What role did a Portlander named Mike Beach play in this movement?
Pishko: Mike Beach is a really interesting person. He was a guy who believed very strongly in the posse comitatus. So there’s actually a little bit of a debate, in terms of who invented what. It’s a little bit funny because there’s two figures who say they created posse comitatus. There’s Mike Beach, who’s from the Portland area, and there was also a person from Southern California who said that he had invented posse comitatus. It’s not totally clear who did what … just, for the historians trying to suss it out.
Miller: But more importantly, what is “posse comitatus?”
Pishko: Posse comitatus is basically a militia movement. The idea of posse comitatus was that members would get stars, they would wear little stars with a noose, I think, and a Bible on it, and a little yellow star they wore on the inside of their jacket. So it was on the down-low. They had a little handbook that they would join and they would all sign a pledge, and the pledge was basically to agree to enforce what we would now call Christian nationalism. But basically the idea of good Christian men enforcing good Christian ideas. And what they meant by this, in general, was that they were going to seek out and fight injustice. And most of the time what posse comitatus sought to fight was law enforcement and the government. They were intensely anti-tax. They had a strong opposition to bankers, especially when it came to foreclosures of land. They really did not like desegregation. They really did not like labor unions and their actions led them to be rather violent.
The thing about the posse comitatus movement that is interesting, is that while they claimed that the sheriff was the most important law enforcement officer, at the time, there were not very many sheriffs who were takers of this. So they would say, “Oh, we really like the sheriff. We think they’re a very valid law enforcement officer.” But sheriffs did not really return the sentiment, because they were seen as this fringe, violent group, similar to what we would consider some militias or Oath Keepers – that they’re rather violent, anti-law, anti-law enforcement.
Miller: How much has changed since then? There are, as you note in your book, more than 3,000 sheriffs in the U.S., almost every state has sheriffs in their counties. How common, broadly … even if we’re not talking about truly self-described constitutional sheriffs, but people who say that it’s up to them to decide which state or federal laws they’ll uphold, based on their own understanding of the Constitution. If you have a broader view of this, how widespread would you say that philosophy is right now?
Pishko: In my view, it’s actually pretty widespread at this point. Now, to talk about the core constitutional sheriff movement, in fairness, that core movement and the members of those organizations and the people who proselytize that movement is not large. It’s about probably 10% of sheriffs or around 300 sheriffs in the country, from what we can tell. And I wanna be clear on this, that we don’t have a member list, we don’t really have documentation. We can kind of deduce the numbers from various letters people sign or meeting attendance. But that’s about what it is.
And the thing about the constitutional sheriff movement that is a little interesting is that they’re not actually that concerned with membership, but they’re really concerned with spreading their ideas very far and wide. They are quite willing to claim that all sorts of sheriffs are following constitutional sheriff principles. They have claimed Alex Villanueva, who served in Los Angeles but ran as a Democrat, and certainly does not identify as a constitutional sheriff, but they are very happy to claim him as a constitutional sheriff. So they’ll claim anybody as a constitutional sheriff, [as] long as they feel that that person’s actions are in connection with what they believe are proper activities.
In my view, the ripples of this movement are actually quite large. And as a practical point, I think that this is one of the reasons why it’s been very, very hard to reform sheriff’s offices in the United States. It is very common in most states to have state sheriff associations protest or lobby against laws that might put limits on sheriff power. And they will all say that it’s because they are a constitutional office and they cannot be regulated by the state. And that is really a constitutional sheriff argument. And I think the fact that this is so widespread and accepted by a lot of politicians is one of the reasons why the office is a particular problem, particularly dangerous in terms of violence and a particular source of corruption.
Miller: Well, on that note, Oregon and Washington are among the majority of states where the office of sheriff is identified in the state constitution. Does that at all constrain lawmakers from circumscribing sheriff’s powers?
Pishko: No, it does not. The state constitution sets up all local offices. So every county office that you might have in your county, you have county commissioners, you have your county prosecutor, you have your county sheriff. All these offices are elected, and of course, at the state level, there are even more elected offices. You elect your representative to the state legislature, you elect your attorney general and your governor. There are many offices, both state and local, that are elected. They’re all set forth in the state constitution, but nobody argues that none of them can be regulated.
We, on the regular, have rules about what state and local officials can and can’t do, and what behavior is or is not acceptable. I mean, just to say a note about sheriffs – in every state, sheriffs are regulated by legislation, even if that legislation happens to cover sheriff pensions and pay, which is, by the way, one of the legislative things that they do not complain about, the fact that the state sets forth their pensions. So there’s really no reason to think that sheriffs cannot be regulated just as every other office is regulated.
Miller: You wrote, at one point: “As I traveled across the country trying to understand the far-right sheriff movement and how it has changed politics as we know it, it became impossible to ignore the guns.” What did you see?
Pishko: Well, I think that at this point, most people in the United States understand that we’re in the middle of a huge deregulation of guns, and this was something I really saw over and over, just as a matter of symbol and actual guns. Part of the reporting task was attending a lot of places where constitutional sheriffs spoke, talking to their supporters and trying to understand the communities that supported them. I wanted to know who are the people who like their constitutional sheriffs and why?
It was hard to ignore the fact that in all of these places, the open carry of firearms was extremely common. And I’m sure, listeners who live in more rural areas … I mean, I live in North Carolina. Western North Carolina is very rural, firearm ownership is very high. I grew up in Texas, firearm ownership is very high. Well, I think what was different about that was not just that people were firearm owners, but that they open-carry their firearms wherever they went.
So the idea that you would carry either your pistol on your hip at the holster or that you might carry your long gun strapped to your back wherever you went. This was the kind of display that really struck me, because so many people were doing it. And it was seen, I think, as a badge, not just firearm ownership or “I like shooting as a hobby,” which, I do think these are relatively common American things, but it was also a sign of membership in a whole set of ideas that go with it.
I do think that guns have become something that really unites the far right and is, again, a tangible symbol that how you feel about guns tends to be how you feel about lots of other things.
Miller: Right now, as you note, national sheriff’s groups are broadly against gun control measures, but it was not always that way. What kinds of positions did they take in the 1960s, 1970s, maybe even into the 1980s?
Pishko: This is absolutely true, what you’re saying. One of the things about sheriffs who oppose gun regulation is, as you point out, this was not always true. And again, this is something I really point to, not just the constitutional sheriff movement, but indeed, the far right movement across the country, as well as within law enforcement and particularly with sheriffs. I think that with sheriffs, we see far right movements before we see it in other places.
So back in the ‘70s and ‘80s, really everyone, all law enforcement – and in fact, most people – supported firearm regulation. Bill Clinton signed the Brady Bill in [1993]. And that was really the first national legislation that regulated firearms. It was an immensely popular bill. Ronald Reagan supported it, the National Sheriff’s Association supported it, even the NRA begrudgingly supported it. Everyone supported this bill. And what happened was, all these pro-gun groups realized that this bill is so popular that they could not keep it from passing. There was no amount of lobbying to not pass it.
So what gun groups did instead, was after the law was passed, they sued to argue that certain provisions of the act were unconstitutional. And the way they sued was, they gathered a group of six sheriffs to sue. So they found six sheriffs throughout the country. And the named plaintiff was a sheriff named Sheriff Printz. He’s from Montana. And one of those sheriffs was, of course, Richard Mack, a sheriff from Arizona who would later become, what most people acknowledge is the founder of the constitutional sheriff movement.
That lawsuit was successful. They won. It was an opinion written by Scalia. There was a concurring opinion written by Clarence Thomas in which he articulated what is now the law, saying that the Second Amendment is in fact a protected right and that everyone has an affirmative right to own guns. That case was decided more narrowly at the time, however. It was really about federal commandeering of law enforcement. But, because the sheriffs won that case, it really set up the constitutional sheriffs movement and county sheriffs to be avatars for gun groups in the far right, generally.
Miller: What role do sheriffs play, broadly, in regulating the possession of firearms in their communities?
Pishko: I think that that’s a really important thing for people to know, because it’s not always obvious. At this point, when you purchase a gun, it is not the sheriff who does your background check; it’s done at the point of sale. Most people know that if you go to a gun shop and buy a gun, any background check will be done at a point of sale. In a few places, you may have additional regulations, like a waiting period or background checks. But a lot of those regulations are fading. We know that, in most states, we now have regimes where you can just walk in and buy a gun, walk out, same day. And, as most people know, open carry and unlicensed carry have become increasingly common, very common. Almost every state, I think, 30-something states, now have those laws. So it’s really common right now.
What the sheriff really does is small pieces of gun regulation. The most important of those is what are sometimes called “red flag” laws or extreme risk protective orders. And that is when someone believes that there’s an individual who is a particular threat, they often go to local law enforcement – which in many places is the county sheriff. And it is the county sheriff who is in charge of both getting an order, if it’s required, to remove firearms and physically removing those firearms.
The reason why that matters is because, let’s say you are a victim of domestic violence. You ask your law enforcement, “I think that my partner is a threat, and I would like someone to go and take their firearms from them.” If the sheriff doesn’t agree with that, or if the sheriff is resistant to enforcing red flag laws or doesn’t like to be seen as involved in taking people’s guns – which is certainly something that constitutional sheriffs believe – that sheriff might just say “No,” because that is not something that they want to do.
Miller: What did you hear, specifically, from one of the sheriffs you talked to about enforcing domestic violence protection orders with respect to guns?
Pishko: I was surprised and I’ll admit it. A few years ago, most sheriffs were quite willing to enforce these domestic violence protective orders with respect to guns. They were all in the mainstream thinking that domestic violence was a serious problem and that firearms ought to be removed. But what I found, over the time reporting this book, actually, is that they were increasingly less willing to do so. Most told me that they would never do it unless they couldn’t help it – that usually they hoped that it would never come up and that if they had to, they were extremely reluctant to do it.
I think that we see that this is the case. We don’t see the case as often as I think it happens, because it’s hard to see things that aren’t happening. But, when we look at certain instances, we know and we can see that it’s just happening less and less.
Miller: In a rural community, and we should say again, that largely we’re talking about places where the only law enforcement is a sheriff’s department, sheriff’s deputies. These are largely rural places that don’t have, say, city police departments. But in a community like that, if the sheriff’s office refuses to enforce that kind of gun provision, nobody else is gonna do it, right? There’s nobody else?
Pishko: You could in theory … it depends on the state, is what I’ll say. So, it’s not that that individual has no recourse. Certainly, their life is much harder because you would, as a person, go to your local law enforcement to ask for help.
It is true that a judge might issue an order, or other law enforcement. So, you could have state troopers or other state law enforcement enforce the order, which I think occasionally happens in some places. But it is certainly much, much harder for an individual … An individual in that kind of situation isn’t generally in a position to go asking five different law enforcement agencies to please take away someone’s guns. I feel like that’s a very high demand on people. That’s why I think it’s the most dangerous, because if you are a person who is seeking that kind of assistance and your local law enforcement isn’t willing to provide it, I think that’s a huge problem.
But I do want to say that it’s not the case that you can never get it enforced by other state law enforcement. You can and you could. As a lawyer, I would argue that you certainly could. But I do think it’s a huge barrier.
Miller: Let’s turn to immigration now. For decades, the main way that sheriffs have been involved in immigration was as jailers. Can you explain how the system has normally worked, with respect to sheriffs?
Pishko: Sheriffs are unique among law enforcement, because they do both general policing, like traffic stops or arrests, and they run county jails. About 85% of county jails are run by elected sheriffs. And what that means is that sheriffs basically decide everything that happens inside the jail, from how people are treated, whether solitary confinement is used, what the health care looks like, what kind of visits people get – are they in person or video only visits?
It also means that they have not just a population of people that they control, but also a large infrastructure that they could control. And as a result, this has given sheriffs extra power, because their department does more. If you run the jail, you actually are responsible for quite a large building that has a lot of infrastructure behind it. It has a lot of needs and people in it. So that is something that I think sheriffs have historically used to justify why they need less oversight.
Miller: And how does that jailing ability connect to immigration enforcement, historically?
Pishko: One of the things about jails is that you could see who comes in and out of jail. When people are booked into jail, in most places, there is some sort of determination made about whether that person may or may not be an American citizen. Sometimes it’s asked. In most places, it’s asked directly. Some places use a form, some places just ask and some just use a form of racial profiling.
If a person is booked into jail, their information is run through a variety of federal databases. And from those databases they can find out whether you have other warrants in other counties, whether you’ve been arrested and whether you’re someone who’s been previously deported. Through both of those mechanisms, sheriffs are able to determine whether they might have someone in their custody who might be deportable, whether they have a noncitizen who might not be in this country legally. What sheriffs can do at that point is contact ICE. Sometimes sheriffs contact the ICE Office, sometimes the ICE Office contacts the sheriff because they hear that they have someone in their jail. And that is one of the ways that immigration enforcement happens.
Actually, most immigration enforcement happens outside of the U.S./ Mexico border. There’s enforcement on the border, but most of the enforcement that goes on in the interior is enforcement that’s happening in jails. And again, it’s because you know who is going in and out of a jail. On top of that, sheriffs can also lease the jail space to ICE, and use it to detain and hold immigrants while they await their hearings.
Miller: Can you explain how the 287(g) Program works? What it is and how it works?
Pishko: Sure, 287(g) is a federal program, it’s created by executive order. It’s also something that the president can eliminate or change if he chooses. It’s a federal program that allows sheriffs to join and act as immigration enforcement. What really happens with 287(g) is, the sheriff joins the program. They don’t get any money for it. There’s no financial incentive attached, but they can have some of their deputies trained to be immigration agents. We actually don’t know what the immigration training looks like, to be perfectly honest, but we know it’s done by ICE. It’s controlled by ICE. So they say whatever ICE tells them to say, I suppose.
But what they can do is, in the case of people being arrested and booked and brought into the jail, sheriffs with 287(g) agreements can question these individuals themselves. If they have someone in their custody that they believe might be an immigrant, might be undocumented, they’re allowed to question that person as an ICE agent would and try to determine whether or not that individual is deportable. And if they think that person might be deportable, they can put them into ICE deportation proceedings.
Miller: You mentioned sanctuary cities briefly, before. There are a number of counties, especially in urban areas around the country, where sheriffs say that they will not honor detainer requests from ICE – so-called sanctuary jurisdictions. What might happen to these places in the second Trump term?
Pishko: I think there’s a real question about exactly how this will work. Detainers is an interesting area because it’s a little bit legally gray. One of the reasons why 287(g) agreements became very popular under Trump’s first term is that it allows sheriffs who want to participate in deportation to bypass this detainer problem.
A detainer is basically a hold, asking the sheriff to hold an individual for 48 hours. So that means the individual, if they were not an immigrant, would be released. But because they are an immigrant, they’re held an extra two days, and this is for ICE to pick them up. Now, ICE does not pick all these people up. They pick some of them up but not all. So after 48 hours, they have to release you. And sheriffs across the country [in the] last Trump administration have said they would not enforce immigration detainers.
There’s a few different ways to get around this that the Trump administration might use. One of them is just to get a judge’s order. If it’s a judicial order, the sheriff has to comply. That’s one of the reasons why sheriffs say they don’t comply with detainers, because they aren’t signed by a judge. The two other moves I see going on are … some states are putting in place state laws that require cooperation with ICE. North Carolina, where I live, just passed one. They passed a state law saying, in essence, sheriffs must do detainers, they have no choice in the matter, so that eliminates part of the discretion for them.
And the other thing that might happen, and this happened to some extent under Trump’s first administration, was they can either withhold funding, or they did a process of naming and shaming sheriff’s offices that they felt were not honoring detainer requests. They can also do things like send ICE agents to the jail. Sometimes they do things like send ICE to pick up people as they leave the jail, which is another way to get around this issue of detainers and the sanctuary city guidelines, I guess what I would call them. So I worry that all of those, in fact, are entirely possible in the next Trump administration.
Miller: It’s striking, unless I misunderstood, that one of the mechanisms you just described, where the state legislature gave directions and essentially said “county sheriffs, you must do this, you must comply with federal law,” both of those pieces – the state lawmakers saying, cooperate with the feds, you have to do this – would seem to go exactly against the overall stated philosophy of constitutional sheriffs … “We are the ones who decide this, and we will prevent the overstepping of state or federal governments.”
Pishko: Pretty ironic, isn’t it? And all of these laws are pushed by far-right sheriffs, I will add. They are done at the behest of sheriffs. And this is one reason why I say that I think it is somewhat misleading to describe the constitutional sheriff movement as “anti-federal.” Some scholars will describe it as an anti-government or anti-federal movement. But as you rightly point out, constitutional sheriffs actually deeply believe in deportation. They have already said that they agree with Trump’s mass deportation plans. They are in favor of deporting and limiting immigration. So this is something that they already have been in favor of.
And you’re right, it is currently deeply working with the government. So it is the opposite of anti-government. But again, that goes back to the root of the constitutional sheriff ideology, which is this idea of the “original Constitution” and a nostalgic idea of what the United States is. And we see that in Trump and Trump’s picks to run the government. They have a shared idea of what the United States should be. And the shared idea is very Christian, it’s very white and it’s very anti-immigrant.
Miller: I want to turn to one of the issues that you spend a good deal of time on in the book, which is the deaths of people in custody in county lockups, in county jails. And we should say again – you may have mentioned this, you maybe didn’t, it’s good to put it out there – that many of the people who are in these county jails are not there because they have been convicted of crimes. They are in pretrial detention. What were the challenges you faced in getting data about deaths in custody?
Pishko: Right now, there is no national requirement to collect data on deaths in custody, which seems incredibly bizarre. These are people, as you point out, many of them have not been convicted yet … There are people in about as much control and care of law enforcement as you could expect. If you are incarcerated in jail, you are 24/7 under the control of the government and yet no one has really made laws or created procedures to track deaths in custody.
So we don’t actually have a very good idea in this country of how many people die in custody. And there are some states that do track it, I want to say. Texas is an example of a state that does track the deaths in custody. There are certainly errors and problems with it, but, as a whole, it’s a state that’s tracking that. There are some states that don’t track it at all. And what we do know about these deaths in custody, as a whole, is that they are not going down. We know, in general. prisons have undergone … To be clear, for people listening, jails usually hold people for shorter amounts of time. As you pointed out, many of them have not been convicted yet. Usually, people are supposed to be in jail a year or less.
Prisons are where people are held after they’re convicted. They’re usually serving sentences of over a year. Those are people who are there longer. We do know in this country that there has been a great movement for prison reform. And, in fact, prison conditions have gotten better … not to argue that they are good or in some way acceptable, but in many places they have gotten more oversight. But we have not seen the same with jails.
And one of the reasons why it’s been very hard to do that is because most jails are run by county sheriffs and those county sheriffs are extremely resistant to that oversight. Oversight of the jail is something that sheriffs resist almost most of all, because these situations can be, for them, very expensive and it can lead to quite a lot of litigation. If people are dying because of a lack of care or some failure to protect people, that is something that sheriffs will get sued for.
Miller: Why do you think it is that, among activists focused on incarceration, that more attention, maybe still, goes to state prisons and not the county jails?
Pishko: I think, to be honest, that most people just do not think about their county jail, nor are they aware of how many people are in it and who’s in it. Part of this is by design. Sheriffs run county jails and they are not necessarily open about the jail [or] who’s in it. Sometimes sheriffs don’t even know who’s in the jail. There are sheriffs in rural areas who use pen and paper, they don’t use computers. So there’s spotty record keeping for various reasons, maybe a lack of technology. There’s not a lot of as much regulation and a lot of it is left to the whims of the county sheriff. So, in a lot of places, procedures and policies and data have just not been updated, because the county sheriff has just not done it. If you ask a sheriff, they’ve done it a long time and that’s just how they’ll continue to do it.
I think that people have focused on prisons, one, because the people in prisons, because they’re there longer, have more of an ability to advocate for themselves. They can write letters to journalists. People can visit them. They have a little more, not a lot – I don’t want to overstate it – but I think because they are in more stable situations, they have some more access to connect with the outside world and the entities that are running the prisons are state agencies. These are appointed agencies, they’re not elected. They don’t have as much of an incentive to dissemble or hide information. They can get scrutinized by state officials. They have to file paperwork. They have more requirements. So it is easier to get access to information for prisons.
I think it is harder for people to get access to information in the county jails. And to be quite honest with you, in county jails, people who are held in county jails, as you point out, are often people who cannot afford to pay bail. A lot of people in county jails, to be honest, are very poor. And when things happen in county jails, because they are very poor, their families are very poor and they simply do not have the resources to reach out, to file lawsuits, to talk to journalists. They just don’t have the time and resources to do that. That’s one reason why I think the system is so terribly burdensome for people.
The people who suffer the most, the people who are in the jails who must endure the conditions are … It’s left to them to advocate for themselves, or for their families to advocate for them. This is a job that really should be done by agencies. It should be done by government agencies and inspectors, not individuals being forced to file lawsuits.
Miller: Can you tell us about Bob Songer? He is a sheriff of Klickitat County in South Central Washington state, and probably the most prominent self-described constitutional sheriff in our listening area.
Pishko: Yes, he is. Bob Songer has been a pretty loyal acolyte of Sheriff Richard Mack for a very long time, as long as I can remember, probably as long as Bob Songer has been in office – although I’m not actually quite sure how long that’s been. But I would say he’s a longtime acolyte. He belongs to an association called the Constitutional Sheriffs and Peace Officers Association, which is usually considered the largest constitutional sheriff group in the country. They are a group that goes around the country, essentially holding what they call “trainings” for constitutional sheriffs.
Bob Songer is a person who participates in that, he helps put together these constitutional sheriff trainings. He writes the curricula to the extent that it exists. More recently, Bob Songer has been in charge of their Powerpoint slides that they use at these trainings, that’s Bob Songer’s handiwork. And the constitutional sheriffs generally go from place to place, often in rural places, and put on a show about what constitutionals do and what they stand for, and advocate for the group and try to get people to join and make money.
You know, Bob Songer … because he’s been such an advocate for it, he’s a very open advocate of it. If you call him and ask him, he’ll tell you he’s a member and that he’s particularly proud of it. And he believes, I think, a lot of the tennents. He is also particularly aggressive about expressing his views. He has been very aggressive in saying that he does not believe in gun regulation. During COVID, he was very aggressive in talking about how he would not enforce COVID health measures. He has expressed a lot of anti-immigrant sentiment. One of the things he’s done that is popular with constitutional sheriffs is start his own posse.
My understanding is he has a very large civilian posse. I think it’s over 200 people. According to Bob Songer, his posse is not all people that support him. They are just interested citizens. The posse does various things. Some posses are more ceremonial. It’s not quite clear to me what Songer envisions for his posse, but he said he was going to use it to do some policing.
One of the interesting things about Bob Songer, I will point out, is that he has a huge problem with his county jail. His county jail is not very safe. It’s not something he’s spent a lot of time or focused on. This tends to be an issue with constitutional sheriffs, as they’re very focused on large political issues but maybe not as focused on things happening in their county.
Miller: This is maybe tied to having a posse, but one of the things that sheriffs have done is offer to deputize people at rallies or talk about deputizing people. What does that mean in practice?
Pishko: The idea of deputizing people – first to frame it, this is a very old thing that sheriffs would do. This is one of the oldest institutions of law enforcement, the sheriff. Sheriffs existed before we really had city police. And one of the oldest jobs that sheriffs would do, would be to deputize individuals and deputize a posse. Sometimes it made sense. The sheriff would deputize a group of people and they would go out and they would chase the horse thief. Sometimes posses have been used to look for people who might have escaped from the county jail. Sometimes posse are used to look for missing people. So, this idea of deputizing civilians is extremely popular in the heritage of sheriffs, and for that reason, is really popular with right wing sheriffs.
Now, in reality, deputization is very different from state to state and different states have rules. In most places, these civilian-appointed deputies should not be doing policing, by which I mean, they should not be arresting people or pulling people over. They’re not permitted to say that they are sheriffs. A lot of the role of deputized civilians, in theory, should be things like traffic control. And then, that is what a lot of these volunteer posses do: traffic control, parades, a variety of ceremonial functions.
In some places, as in Klickitat County, the posse begins to cross that line. One of the most famous posses was Joe Arpaio’s posse. He had a posse of, I think, 2,000 people. He had so many posse members, he had to hire staff to manage the posse and he let his posse do whatever – they could arrest people, they were setting up sting operations, they were driving around, pulling people over. So, after Joe Arpaio, a lot of places pulled their posses back, because this struck a lot of people as an obvious abuse of power. This is still why the posses in many places are not allowed to do that. I will say there are a lot of places where, if you were asked to be deputized and serve and you refuse, you could be charged with a crime. This is true in California. If a sheriff deputizes you and asks you to do something and you refuse, they could charge you with a misdemeanor, which I always thought was interesting.
Miller: We have just about just a minute left, but I want to squeeze in this question. You point out that in the majority of the country, sheriffs are white men. But it is notable that in the Portland area right now, all three sheriffs are white women. Do you find that policies change when the demographics of the leaders of these offices change?
Pishko: In my opinion, no. To some extent, we just don’t have enough data to show, but I will say that looking at policies and procedures, problems in jails, etc., we do not see huge changes based on the demographics of the individual who is sheriff. So, for example, as you say, a woman sheriff does not necessarily change the policies and procedures or concerns with the sheriff’s office.
Miller: Jessica, thanks very much.
Pishko: Thank you so much.
Miller: Jessica Pishko is the author of the new book, “The Highest Law in the Land: How the Unchecked Power of Sheriffs Threatens Democracy.”
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