Are Sheriffs Above the Law?

For many of us who grew up watching the weekly adventures of Robin Hood on a black-and-white television screen, the word “sheriff” conjures the dogged lawman of Nottingham chasing the noble bandit through Sherwood Forest. Today’s most recognizable sheriff may be the rabidly anti-immigrant Joe Arpaio of Maricopa County, Arizona. Thrown out of office by voters in 2016 after twenty-four years and convicted of criminal contempt for disobeying a court order to stop arresting anyone he suspected might be undocumented, Arpaio was the recipient of President Donald Trump’s first pardon. His outrageous behavior—he once sent a “posse” to Hawaii at taxpayer expense to examine Barack Obama’s birth certificate, which he declared fraudulent—makes it easy to dismiss him as an anomaly.

But in The Highest Law in the Land, Jessica Pishko’s eye-opening account of the modern-day American sheriff, Arpaio is less anomaly than symbol, his excesses differing only in degree from those of other sheriffs who wield power less flagrantly but often with no more accountability. Because almost all of the country’s more than three thousand sheriffs are elected to serve a single county—some with fewer than one thousand residents and others with millions—situations differ widely, and a national picture of how they exercise their power is elusive. But power is what all sheriffs have in common. They and their deputies run county jails that admit some 10 million people a year. Sheriffs report to neither the local police chief nor any other elected official, so it’s no wonder that many come to see themselves, and to behave, as a law unto themselves.

Pishko, a journalist with a law degree from Harvard, builds her argument for widespread abuse from a series of snapshots. She describes how the “Posse Comitatus”—the “power of the county”—movement of the 1970s, in which members of hyperlocal vigilante groups refused to pay taxes and declared themselves free of federal authority, burnished the position of sheriff. More recently a prominent sheriff vocally supported a Nevada cattle rancher, Cliven Bundy, in his highly publicized armed standoff with the federal Bureau of Land Management. Another sheriff defended the thirteen members of Michigan militia groups charged with plotting to kidnap Governor Gretchen Whitmer in 2020.

The alliance between sheriffs and groups operating outside the law goes back many decades. In the post–Civil War South, sheriffs were often enforcers of white supremacy through lynchings and suppression of the Black vote. The racist, antisemitic “Christian Identity” movement that emerged during the 1950s found allies among sheriffs, who were also drawn to the notion of posse comitatus that captivated portions of the midcentury political right.

The most consequential development Pishko chronicles is the collaboration that has evolved between sheriffs and the National Rifle Association in recent years. This affinity may seem obvious, but it is actually something quite new. As law enforcement officials, sheriffs once resisted the gun rights cause. In 1986, for example, the National Sheriffs’ Association opposed the Reagan administration’s effort to roll back existing gun control measures.

In Pishko’s account, the turning point came with the passage in 1993 of the Brady Act, a federal law that required each local jurisdiction’s “chief law enforcement officer” to perform background checks on gun purchasers. In almost every state, that duty fell to the county sheriffs, who by habit and history tended to be skeptical of federal authority. Because the law’s strong bipartisan support had deterred the NRA from open opposition, the organization sought and readily found sheriffs willing to carry the Second Amendment flag into constitutional battle against the federal government. Lawsuits challenging the Brady Act were brought in the name of sheriffs in six states; the one that made it to the Supreme Court was filed by Sheriff Jay Printz of Ravalli County, Montana. Printz v. United States, decided in 1997 with a majority opinion by Justice Antonin Scalia, held that the federal government lacked the constitutional authority to “commandeer” the states into doing its law enforcement work. That the Constitution says nothing about sheriffs did not matter. For the purposes of the Brady Act, the sheriff was the state.

The Printz decision is remembered today mainly for a concurring opinion by Justice Clarence Thomas that urged the Supreme Court to reconsider its long-held view that the Second Amendment did not confer an individual right to own a gun. Thomas’s suggestion, startling in its time, blossomed eleven years later into District of Columbia v. Heller, a decision that recognized that right for the first time and launched the Court on its project to raise the barriers to firearms regulation ever higher.

In retrospect Printz might also have been understood as a coming-out party for the country’s sheriffs, identifying them as firmly anchored in mainstream conservative politics rather than lurking at the extremist fringes of posse comitatus. To honor his work on the case, the NRA named Richard Mack, the Arizona sheriff who had recruited his peers for the Brady Act litigation and would later stand with Cliven Bundy, as its 1994 Law Enforcement Officer of the Year. Mack is a leading advocate of the view that the “constitutional sheriff” possesses the authority to nullify federal laws. He no longer holds office, but in his self-published book The County Sheriff: America’s Last Hope (2009), he writes, “The federal government, the White House, or Congress do not hire us, they cannot fire us, and they cannot tell us what to do.”

I covered the Printz case for The New York Times, and I certainly didn’t understand it as a showcase for the emergence of the new sheriff. My focus was on what the decision meant for the balance between federal and state authority. That such a vital issue would be brought to the fore by, of all things, a county sheriff struck me as simply a quirk. I was then, as I suspect many are now, simply unaware of the part that sheriffs play in American law enforcement.

I wish I had known, for example, that in one third of US counties the sheriff’s office is the largest law enforcement agency. Sheriffs employ a quarter of all sworn law enforcement officers and control 85 percent of local jails. Their offices are responsible for 30 percent of killings by law enforcement, and at least one thousand inmates die every year while in sheriffs’ custody. While many sheriffs’ offices are modest in size, some are huge: the scandal-plagued Los Angeles County Sheriff’s Department, the country’s biggest, employs an astonishing 20,000 people with an annual budget of nearly $4 billion, and its jails hold a daily average of 13,000 inmates. One third of states impose no educational or law enforcement training requirements for the job, while in most others a successful candidate for sheriff can wait until taking office before fulfilling any requirements that do exist.

Sheriffs, 90 percent of whom are white men, commonly believe that their elected status puts them above police chiefs. In their eyes, local police are mere “code enforcers,” while they are the people’s authentic representatives, since they have not been appointed by bureaucrats. As a long-serving Louisiana sheriff once told NPR:

I have no unions, I don’t have civil service, I hire and fire at will. I don’t have to go to council and propose a budget…. I’m the head of the law-enforcement district, and the law-enforcement district only has one vote, which is me.

The word “sheriff” derives from a compression of two English words: “shire,” for county, and “reeve,” for local official. (To this day the adjective that refers to things pertaining to sheriffs is “shrieval.”) In the old days one of the office’s primary duties was to collect taxes for the monarch. The early history of sheriffs in the United States is murky and, according to Pishko, shrouded in self-serving mythology:

Sheriffs—white-hatted and often on a horse—elided with other popular Western figures, the cowboy and the outlaw, and became fixtures in the American mythology of masculine independence.

The Trump administration found this image useful, embracing sheriffs as natural allies. “The humble county sheriff, that American icon, became the soldiers in Trump’s culture war,” Pishko writes. A widely publicized speech by Trump’s attorney general Jeff Sessions at the 2018 annual meeting of the National Sheriffs’ Association played directly to his audience’s self-regard. “Since our founding, the independently elected sheriff has been the people’s protector who keeps law enforcement close to and accountable to people,” Sessions said. “The office of sheriff is a critical part of the Anglo-American heritage of law enforcement. We must never erode this historic office.” He added, “We want to be partners. We don’t want to be bosses. We want to strengthen you and help you be more effective in your work.”

The speech was about more than history, Pishko notes:

It was about how sheriffs see themselves as part of a grand tradition based on a nostalgia that elides the history of violence toward Native people, immigrants, Black communities, and people of color.

Some civil rights groups took exception to the attorney general’s “Anglo-American heritage” reference. As it turned out, the phrase was not in the advance text of the speech that the Justice Department distributed. Sessions evidently added it on the fly. “The sheriff as an institution represents an imagined history, a lost cause that did not ever exist,” Pishko writes. It is “a fairy tale that white Americans like to tell themselves.”

If it’s a fairy tale, it’s one with consequences. At any given time local jails hold some 700,000 people who are awaiting formal charges, a trial, or transfer to a state prison. These jails, under the control of sheriffs, operate with little oversight or staff training and without requirements for medical care. “Jails are on the front lines of mental illness and disordered substance use,” Pishko observes, “which gives sheriffs even more power over people who are largely ignored by society and who lack the resources to get help outside of the criminal legal system.”

A 2011 Supreme Court case, Brown v. Plata, had the unintended consequence of illuminating the problem. In a rare liberal victory, the Court upheld a lower court’s order requiring California to reduce what the justices called an “exceptional” level of overcrowding in its state prisons. As a result, many inmates were transferred to county jails. The transfers, which went by the bureaucratic name “realignment,” proved a disastrous experiment. The placement of long-term state convicts in poorly managed local jails produced a surge of violence, with inmate-on-inmate homicides up by 46 percent compared with the preceding seven years. Asked about the eleven inmates who died while in his custody in a single year, the sheriff of Fresno County dismissed the deaths as “inevitable.”

Despite their disdain for the federal government, sheriffs have been valuable partners for the US Immigration and Customs Enforcement agency. They screen new arrivals to their jails and notify ICE when they find an expired visa or an existing deportation order. And the immigration crisis has been a budgetary boon for sheriffs, who lease jail space to ICE at up to $200 per inmate per night for holding people who await deportation hearings.

At the core of Pishko’s argument that “the unchecked power of sheriffs threatens democracy”—to quote her book’s subtitle—is that sheriffs as a group have become the right wing’s uniformed shock troops. Certainly sheriffs are useful to the right. They appear regularly as talking heads on conservative media, especially on the subject of immigration, as they are unconstrained by the rules that restrict members of the US Border Patrol from speaking their minds. Pishko reports on rallies and other events she attended as a journalist, including a gathering of dozens of sheriffs on a private ranch in Arizona near a section of Trump’s uncompleted border wall in June 2021. Convening to end the Biden border crisis, each of the Stetson-hatted sheriffs gave a brief speech to display his anti-immigrant credentials. “I am not sent to you by the government,” one New Mexico sheriff declared. “I am sent to the government by you.” This sheriff’s antigovernment bona fides were beyond question; early in the Covid-19 pandemic he had deputized members of a local church so they could hold in-person services despite restrictions on such gatherings.

These vignettes of sheriffs in action are dramatic and alarming. But I was left uncertain about how representative such scenes actually are and how many of the country’s thousands of sheriffs have taken the path of Mark Lamb, the sheriff of Pinal County, Arizona, who led the border rally that Pishko describes. In 2021 Lamb, something of a right-wing media star, founded an organization called Protect America Now to “support Sheriffs and law enforcement members that believe in God, Family and Freedom.” At its peak the organization counted around eighty sheriffs as members. As of this year, Pishko reports, its website and Facebook page are no longer active. In July, Lamb lost decisively to Kari Lake in a Republican primary for Arizona’s open US Senate seat.

And while Richard Mack traveled from Arizona to Nevada to support Bundy’s standoff with the government, the sheriff of Clark County, Nevada, where Bundy lived, refused to support the rancher. In 2023 a “sheriffs first” bill that would have required federal law enforcement officials to “check in” with the county sheriff before conducting a search or making an arrest came before the Montana legislature. It was defeated.

If the moment for sheriffs as an independent force on the political right has passed, as these data points suggest, might it be because sheriffs have been folded so comfortably into Trump’s MAGA world that they have effectively merged with the modern Republican Party? Is the real cause for worry perhaps even more acute than Pishko suggests: not that sheriffs are above the law—“the highest law in the land,” of the book’s title—but rather that they have become the law?

Pishko ends her book with an examination of reform efforts, which despite good intentions have largely failed. The enormous Los Angeles County Sheriff’s Department provides a striking example of how hard it is to bring about change even under a sustained critical public spotlight. It has been years since it became known that among the department’s 10,000 sworn deputy sheriffs are members of gangs with such names as “the Punishers” and “the Grim Reapers” who commit violent offenses both on the streets and inside the jails. Despite multiple investigations and reports, the problem persists.

In thirty-three states, the office of sheriff is provided for and defined in the state constitution, essentially requiring legislatures to keep their hands off and providing cover for those legislators who want to cultivate rather than alienate the county sheriff. “The idea that sheriffs are uniquely above the law cultivates a myth that sheriffs not only do not need reform but that reform is anathema to the historical nature of the office,” Pishko writes. “The culture of impunity is so entrenched in the sheriff’s office that even with legislation, oversight, and electoral success, change comes only in small steps.”

Since sheriffs must face voters at regular intervals, it seems logical to conclude that the bad ones can be defeated at the polls. Logical but naive. It took ten years of concerted organizing in the Latino community to defeat Joe Arpaio. Most elections for sheriff are uncontested, and in the contested elections, the incumbent wins 90 percent of the time, with the result that tenures often last for decades. (One notable exception is an election that will take place this November in Sagadahoc County, Maine. Last year a county resident with known psychiatric problems, Robert R. Card II, went on a rampage and killed eighteen people in Lewiston. It was the worst mass shooting in Maine’s history. Sheriff Joel Merry is being challenged for reelection by one of his deputies, Sergeant Aaron Skolfield. Both have been severely criticized for not having ordered the seizure of Card’s firearms.)

A journalistic investigation last year brought to light a self-named “Goon Squad” of sheriff’s deputies who for years had been systematically brutalizing Black residents of Rankin County, Mississippi. The sheriff, Bryan Bailey, denied all knowledge of the behavior, which his deputies had proudly chronicled in graphic WhatsApp chats. The men, he said, had gone rogue. A successful Justice Department prosecution led to prison sentences of ten to forty years for five deputies and a former police officer. Last November, Bailey was reelected without opposition to a fourth four-year term.