SSRN Id4048243

POLICE BRUTALITY AS TORTURE
Nadia Banteka*
INTRODUCTION
Nine minutes and twenty-nine seconds.1 For nine minutes and twenty-
nine seconds, Officer Derek Chauvin pressed his knee on George Floyd’s
neck, choking him with his full bodyweight after Floyd was already face
down on the street, handcuffed, gasping for breath for allegedly using a
counterfeit $20 bill at a local food store.2 Even after Floyd had stopped
breathing, Minneapolis police officers continued their sadistic violence
against his lifeless body.3 For three decades, Jon Burge, a commander in the
Chicago Police Department tortured with impunity over one hundred black
men, allegedly to extract confessions from them, by placing bags over their
heads and imitating asphyxiation, burning them with cattle prods, and
electrocuting them while shouting racial slurs.4 The jury verdict finding
Derek Chauvin guilty of murder was cathartic for many in society who hope
for police accountability and criminal law reform.5 But the high-profile trial
and verdict underscored how rarely officers face criminal charges—let alone
convictions—for lethal violence. Of the 1127 police-caused deaths in 2020,
police officers were charged with a crime in only sixteen cases, or
*
Assistant Professor of Law, University of the Pacific McGeorge School of Law.
1
See Nicholas Bogel-Burroughs, Prosecutors Say Knelt on George Floyd for 9
minutes 29 seconds, Longer Than Initially Reported, The New York Times (Mar. 30, 2021),
https://www.nytimes.com/2021/03/30/us/derek-chauvin-george-floyd-kneel-9-minutes-29-
seconds.html.
2
See Erik Ortiz, How Many Years Will Derek Chauvin Be In Prison After Guilty
Verdict in Floyd’s Death?, NBC News (Apr. 22, 2021), https://www.nbcnews.com/news/us-
news/how-many-years-will-derek-chauvin-be-prison-after-guilty-n1264839; Separate from
the criminal trial, George Floyd’s family filed a §1983 civil lawsuit against the City of
Minneapolis, asserting the four former police officers violated Floyd’s civil rights on May
25, 2020. In March 2021, as Derek Chauvin’s criminal trial was preparing to start, the
Minneapolis City Council unanimously approved a $27 million civil settlement with Floyd’s
family. See Minneapolis Approves “Historic” $27 Million Settlement with George Floyd’s
Family, CBS News (Mar. 13, 2021).
3
See Evan Hill et al, How George Floyd was Killed in Police Custody, NEW YORK
TIMES (May 31, 2020 updated Jan 24, 2022)
https://www.nytimes.com/video/us/100000007159353/george-floyd-arrest-death-
video.html?referringSource=articleShare
4
See NICOLE GONZALEZ VAN CLEVE, CROOK COUNTY: RACISM AND INJUSTICE IN
AMERICA’S LARGEST CRIMINAL COURT 144 (2016).
5
See Oritz, supra note 3.
Electronic copy available at: https://ssrn.com/abstract=4048243

2 YOUR TITLE [2-Mar-22
approximately 1% of all killings.6 Most of these killings occurred during

police responses to suspected non-violent offenses or cases in which no crime
was reported.7 The lack of criminal charges is not linked to an inability of
prosecutors to identify the officers involved, since police officers were
identified in about half of these cases, with several of the officers implicated
having shot or killed someone before, including multiple times.8 In other
words, criminal indictments are a rarity for police officers who commit acts
of violence; criminal convictions are almost non-existent.9
Police brutality exists on a spectrum. On one end there is police
misconduct that represents any minimum physical or mental interference
between an individual and the police that violates the individual’s
constitutional rights and may also be criminal in nature. On the other end,
there is police misconduct that causes death. Misconduct that falls along this
spectrum is often criminal in nature, but criminal charges are rarely brought
for common offenses such as assault or battery committed by police
officers.10 When prosecutors decide whether to bring charges against a police
officer for actions committed in the line of duty, they often assume that some
level of the implicated conduct is inherent in the officer’s regular policing
duties and permissible in relation to its risks.11 For offenses such as assault
or battery, prosecutors defer to the officer’s discretion on whether the
officer’s conduct was necessary and reasonable within the exercise of the
6
See 2020 Police Violence Report, https://policeviolencereport.org/. (Over one
hundred of these killings were traffic violation stops and ninety-seven people were killed
during police responding to reports of someone behaving erratically or having a mental
health crisis).
7
See id.
8
See id.
9
See Amelia Thomson-Deveaux, Nathaniel Rakich, & Likhitha Butchireddygari, Why
It’s So Rare for Police Officers to Face Legal Consequences, FIVETHIRTYEIGHT (June 4,
2020, 6:00AM) (Updated on Sept. 23, 2020 at 4:53PM),
https://fivethirtyeight.com/features/why-its-still-so-rare-for-police-officers-to-face-legal-
consequences-for-misconduct/ (“What’s more, there’s no evidence that substantially more
police officers are facing charges, despite an uptick in protests against the use of excessive
force by police.”) (“In fact, Stinson found only 110 law enforcement officers nationwide
have been charged with murder or manslaughter in an on-duty shooting -- despite the fact
that around 1,000 people were fatally shot by police annually, according to a database
maintained by The Washington Post. Furthermore, only 42 officers were convicted. Fifty
were not and 18 cases are still pending.”)
10
See e.g. 2020 Police Violence Report, https://policeviolencereport.org/.
11
See Graham, 490 U.S. at 398-9 (“Fourth Amendment jurisprudence has long
recognized that the right to make an arrest or investigatory stop necessarily carries with it
the right to use some degree of physical coercion or threat thereof to effect it.”); See also
Trivedi, Gonzalez Van Cleve at 898-99 (“However, prosecutor’s get the police’s backs in
less obvious ways, which include influencing practice norms within the criminal prosecution
system.”).

2-Mar-22] YOUR TITLE 3
officer’s duties.12 Prosecutors have been, at best, reluctant to pursue

traditional charges against police officers, and many cases have led to, at
most, administrative dismissal of the officer. 13
There are also many instances of police brutality along the spectrum
that are not adequately captured by existing criminal statutes. Consider again
the nine minutes and twenty-nine seconds Derek Chauvin pressed his knee
on Floyd’s neck, using his body weight to immobilize, and ultimately
asphyxiate Floyd.14 Floyd’s death and the national outcry that followed
prompted the prosecutor to charge Chauvin with homicide. 15 But imagine a
less horrifying scenario in which Floyd had come out of this encounter alive.
The prosecutor would have been unable to bring homicide charges against
Chauvin and given the rarity of assault charges and convictions the case
would likely be dropped or result in an acquittal. However, there are aspects
of Chauvin’s actions against and disposition towards Floyd that are not
elements of homicide statutes or other statutes on assault, battery, or violent
offences, yet are captured on the video of this violent encounter that the jury
and the world watched.16 That is, Chauvin’s continuous sadistic infliction of
pain and suffering against a person who was fully restrained and therefore
within the officer’s full custody and control, who pled with him for air. While
legislators have drafted laws criminalizing myriad acts when committed by
civilians, our otherwise over-criminalized legal system lacks an appropriate
criminal statute to capture this kind of police violence. 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 part because we lack the proper language
to describe it.
To increase accountability for police brutality, state governments and
legislatures have so far focused on overcoming resistance to prosecuting or
convicting police officers by reducing or eliminating existing procedural
hurdles. Recently, legislation has been introduced shifting the decision to
investigate and prosecute police officers involved in killings to the state
12
See Josh Bowers, Legal Guilt, Normative Innocence, and the Equitable Decision Not
to Prosecute, 110 COLUM. L. REV. 1655, 1709, 1715 (2010).
13
See generally Kate Levine, How We Prosecute the Police, 104 GEO. L.J. 745 (2016);
Ben Grunwald & John Rappaport, The Wandering Officer 129 (6) YALE L. J. 1676, 1676
(Regarding the problem of only administrative dismissals and the phenomenon of
“wondering officers”).
14
See id.
15
Tim Arango and Nicholas Bogel-Burroughs, What is Derek Chauvin Charged with?
NEW YORK TIMES (March 8, 2021, updated March 10, 2021)
https://www.nytimes.com/2021/03/08/us/derek-chauvin-charges.html.
16
Evan Hill et al, How George Floyd was Killed in Police Custody, NEW YORK TIMES
(May 31, 2020 updated Jan 24, 2022)

attorney general’s office, in hopes that the measures taken will gradually
remove local authorities from investigations of police misconduct, minimize
interest conflicts with local law enforcement, and increase transparency. 17
But these changes have not significantly affected the status quo. In New
York, for example, of the forty-three investigations that the attorney general’s
office has conducted since this change in the law, only three have led to an
officer being charged and none has yet led to a conviction with only a quarter
of investigations still open.18
This article is the first to propose a different and currently unexplored
way of increasing accountability for police brutality by highlighting its
particularly heinous conduct and criminalizing it by state statute. Current
criminal law misses the cumulative levels of violence inflicted through police
brutality by attempting to address it through existing offenses such assault or
battery. Instead, I propose a model criminal statute specific to this violence,
classified as torture committed by public officials. This criminal torture
statute punishes a crime particularized to those who enact brutality and
violence while cloaked with the purported authority of the state. It bans
violent and nonviolent acts committed with the intent to cause severe physical
or mental pain or suffering during searches and seizures as well as within jails
and prisons.19 Identifying police brutality as torture gives us a name for the
scope of the terror and cruelty police brutality inflicts not only against the
individual victims but also against the communities the police swore to
protect. Such an approach can bridge the gap between traditional criminal
charges, which prosecutors often choose not to pursue against police officers,
and criminal police mistreatment that is often seen as falling outside the scope
of existing criminal offenses.
Using the proposed statute to overcome resistance to police
accountability offers significant benefits. First, it establishes an objective
standard for the prosecution of these crimes in place of existing laws that
17
Police Use of Force 2020, A.B. 1506 116th Congress (2020); NY Exec. Order No.
147 (July 8, 2015) https://www.governor.ny.gov/sites/default/files/atoms/old-
files//EO147.pdf.
18
Sarah Maslin Nir, Jonah E. Bromwich, Benjamin Weiser, A Special Unit to
Prosecute Police Killings Has no Convictions, NEW YORK TIMES (Feb 26, 2021, updated
Nov. 30, 2021) https://www.nytimes.com/2021/02/26/nyregion/new-york-police-
accountability.html.
19
See Almerindo E. Ojeda, What Is Psychological Torture?, in THE TRAUMA OF
PYCHOLOGICAL TORTURE 1, 2-3 (Almerindo E. Ojeda ed., 2008). (attempting to catalogue
those techniques looking at torture cases from around the world, listed isolation,
psychological debilitation (including sleep deprivation), sensory assault (shouting or loud
noise), induced desperation (random punishment or reward, implanting guilt, abandonment,
or learned helplessness), threats to self or others, sexual humiliation, feral treatment (forced
nakedness, denial of personal hygiene), desecration (forcing victim to violate religious
practices), and finally pharmacological manipulation (forced use of drugs)).

defer to officer and departmental discretion and their attendant presumption

that officer conduct falls within the scope of regular police duty. The
proposed statute sets forth the elements of the particularized offence of
torture committed by public officials against which police actions can be
measured. Second, an express statute pertaining specifically to police officers
and other public officials will alleviate prosecutors from the burden of
establishing before a jury what falls beyond police officer discretion and
outside of permissible force.20 By charging relevant police misconduct under
a statute that is directly applicable to police officers, prosecutors will be able
to sustain charges and begin to change the social perception that police
officers are unrestricted in their violence. Finally, in addition to resolving the
existing inadequacy of criminal law, this proposal would also have significant
expressive and rhetorical power. Describing police brutality as torture
focuses the criminal legal system and the public on the defendant's abuse of
state power, helps to explain its full scope, and deter future violations through
public condemnation. It is no accident that the countries that have the lowest
rates of police brutality are those that have openly condemned this abuse of
state power and have criminalized torture committed by public officials.21
This Article proceeds in three parts. In Part I, I critically discuss the
inadequacy of existing civil and criminal remedies to provide a vehicle for
police accountability and reform. I highlight the normative and pragmatic
reasons behind the need for a criminal statute that is particularized to police
conduct in instances of brutality. I show that this proposal is desirable both
as a means towards accountability of past police transgressions against
individuals and as a means towards deterrence of future misconduct through
social signaling of collective condemnation of police brutality. I argue this is
most salient today due to the growing militarization of the police and the
attendant increase in their abusive potential. In Part II, I offer a legislative
proposal, a model statute criminalizing torture committed by public officials
that I urge state legislatures to adopt, and I discuss how this statute interacts
with existing legal frameworks. In Part III, I show the potential impact of this
model statute by offering a typology of unaccounted cases of police brutality
during searches and seizures as well as detention and incarceration that would
successfully fall within the scope of this proposed statute. If race is the most
pressing issue in the United States today, police brutality is the flashpoint.
Incident after incident of police brutality during searches and seizures, and
20
See Roger A. Fairfax Jr., The Grand Jury's Role in the Prosecution of Unjustified
Police Killings--Challenges and Solutions, 52 HARV. C.R.-C.L. L. REV. 397, 397-400
(2017).
21
See Alexi Jones & Wendy Saywer, Not Just a Few Bad Apples: U.S. Police Kill
Civilians at much Higher Rates than other Countries, PRISON POLICY INITIATIVE (June 5,
2020) https://www.prisonpolicy.org/blog/2020/06/05/policekillings/.

within jails and prisons reinforces the conviction within many communities
that police harm with impunity those whom they have a duty to protect.
Criminalizing egregious instances of police brutality as torture gives us a
name and a vehicle towards accountability for the scope of the terror and
cruelty police brutality inflicts not only against the individual victims but also
against the communities they swore to protect.
I. THE INADEQUACY OF EXISTING CIVIL AND CRIMINAL ACCOUNTABILITY

FOR POLICE BRUTALITY
Police brutality during searches, seizures, and mistreatment of

incarcerated people within jails and prisons are not new phenomena.
Accountability for instances of police brutality, however, remains a
challenge. In this part, I critically discuss some of the existing obstacles to
accountability for police brutality that this article’s proposal promises to
overcome.
A. Overcoming the Barriers to Accountability for Police Brutality
In most cases of police brutality, the primary source of relief takes the
form of civil remedies that allow a private individual to sue state officials or
any government employees acting under the color of state law.22 But the
largely available civil accountability remedies are difficult to obtain
particularly due to the doctrine of qualified immunity.23 There is also no clear
standard for how states hold police officers and other public officials
accountable, including to deter officers from similar misconduct. Some
officers may be terminated while others are merely reassigned to a different
department or placed on probation with a scarcity of successful prosecutions
for criminal acts of police brutality.24
22
See 42 U.S.C. § 1983; See e.g. David H. Gans, The Supreme Court Bears
Responsibility for George Floyd’s Death, SLATE (May 25, 2021), https://slate.com/news-
and-politics/2021/05/george-floyd-supreme-court-blame.html (discussing how 1983 claims
are not adequate to address the police violence problem in the United States).
23
Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986);
White, 580 U.S., at 551.
24
See, e.g., TOM BARKER, POLICE ETHICS: CRISIS IN LAW ENFORCEMENT 56 (3d ed.
2011); Roger Goldman & Steven Puro, Revocation of Police Officer Certification: A Viable
Remedy for Police Misconduct, 45 ST. LOUIS U. L.J. 541, 545 (2001) (“Even when [unfit
officers] are terminated, these officers often go to work for other departments within the
state.”); Ben Grunwald & John Rappaport, The Wandering Officer 129 (6) YALE L. J. 1676,
1691-97.

1. The Insufficiency of Civil Remedies for Police Brutality
Instances of police brutality that take place during searches and

seizures by the police violate the rights of individuals under the Fourth
Amendment.25 The Fourth Amendment addresses reasonable searches and
seizures, and individual claims against police officers for its violation most
often arise from police arrests and attendant events. Fourth Amendment
claims are subject to the reasonableness standard, a standard whose varied
application has received ample criticism. 26 In Graham v. Connor, 27 the Court
set out what they called an objective reasonableness standard for the analysis
of excessive force claims.28 Under this standard, courts look to the level of
force used and its justification under the totality of the circumstances and
facts known to the officer at the time, viewed from the perspective of the
officer.29 Thus, the purportedly objective standard provides ample deference
to the police officer’s assessment and discretion in the moment and rarely
places adequate weight on the circumstances of the victim. 30 Whereas the
reasonableness standard, on its face, has been used with the intention of
removing the subjectivity of the individual officer, it often operates in the
opposite way, limiting police officer liability when an officer claims
justification for the use of force.31
When an individual has been adjudicated guilty of a crime, it is the
Eighth Amendment’s cruel and unusual punishment clause that constrains the
conduct of police and public officials. 32 In Eight Amendment claims, the
25
U.S. Const. Amend. IV.
26
See e.g., Nadia Banteka, Police Ignorance and (Un)reasonable Fourth Amendment
Exclusion, 75 VAND. L. REV 2022 (forthcoming); Thomas K. Clancy, The Fourth
Amendment’s Concept of Reasonableness, 2004 UTAH L. REV. 977, 999; Sherry F. Colb, The
Qualitative Dimension of Fourth Amendment “Reasonableness,” 98 COLUM. L. REV. 1642,
1687 (1998); Tracey Maclin, The Central Meaning of the Fourth Amendment, 35 WM. &
MARY L. REV. 197, 199 (1993); William J. Stuntz, Implicit Bargains, Government Power,
and the Fourth Amendment, 44 STAN. L. REV. 553, 554 (1992); Devon W. Carbado,
(E)Racing the Fourth Amendment, 100 MICH. L. REV. 946, 977, 1030 (2002); Anthony C.
Thompson, Stopping the Usual Suspects: Race and the Fourth Amendment, 74 N.Y.U. L.
REV. 956 (1999); Cynthia Lee, Reasonableness with Teeth: The Future of Fourth
Amendment Reasonableness Analysis, 81 MISS. L.J. 1133, 1148-1151.
27
Graham v. Connor, 490 U.S. 386, 396-7 (1989).
28
Id.
29
Id. (The reasonableness of the officer's use of force “must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.”).
30
See id.
31
See Kit Kinports, Criminal Procedure in Perspective, 98 J. CRIM. L. CRIMINOLOGY
71, 74 (2007); Geoffrey P. Alpert & William C. Smith, How Reasonable Is the Reasonable
Man?: Police and Excessive Force, 85 J. CRIM. L. & CRIMINOLOGY 481, 486 (1994).
32
U.S. Const. Amend. VIII.

deliberate indifference standard determines whether conduct is

unconstitutional.33 When addressing subject areas such as meals, access to
health care, or ability to exercise while under the supervision of the facility,
a plaintiff must establish that the prison officials consciously disregarded a
risk of harm of which they were aware.34 In the context of force used by
public officials such as staff or guards of the detention facilities, these claims
relate to force that falls outside the scope of force used “in a good faith effort
to maintain or restore discipline.”35 Thus, a plaintiff must establish that the
prison official acted maliciously or sadistically with the very purpose of
causing harm to the plaintiff, a particularly high standard to establish. 36
Where an individual has not been adjudicated guilty of a crime, the
Fourteenth Amendment’s Due Process Clause, not the Eighth Amendment,
provides the minimum standard. To establish a claim of excessive force in
pretrial detention, an individual must show that the officer used force
purposely or knowingly and that the force was objectively unreasonable.37
Where a person challenges conditions of confinement, they must establish
that detention is excessive in relation to a legitimate, non-punitive purpose.38
Finally, the Fourteenth Amendment Substantive Due Process Clause
serves as a catch-all for deprivations of civil rights that do not fall directly
within the scope of other Amendments. 39 However, the Court has required a
plaintiff to establish that the defendant’s conduct or deprivation “shocks the
conscience” to find a violation of substantive due process.40 This standard
33
See Hudson v. McMillian, 503 U.S. 1, 8-9 (1992) (“The objective component of an
Eighth Amendment claim is ... contextual and responsive to ‘contemporary standards of
decency.”’ (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)).
34
See Farmer v. Brennan, 511 U.S. 825, 826 (1970) (“Deliberate indifference entails
something more than negligence but is satisfied by something less than acts or omissions for
the very purpose of causing harm or with knowledge that harm will result. Thus, it is the
equivalent of acting recklessly. However, this does not establish the level of culpability
deliberate indifference entails, for the term recklessness is not self-defining, and can take
subjective or objective forms.”) (“Subjective recklessness, as used in the criminal law, is the
appropriate test for ‘deliberate indifference.’”); see also Estelle v. Gamble, 429 U.S. 97, 106
(1976) (“In order to state a cognizable claim, a prisoner must allege acts or omissions
sufficiently harmful to evidence deliberate indifference to serious medical needs.”).
35
Johnson, 481 F.2d at 1033, quoted in Whitley, 475 U.S. at 320-21; Graham v.
Connor, 490 U.S. 386 (1989).
36
John V. Jacobi, Prosecuting Police Misconduct, WIS. L. REV. 789, 818 (2000).
(“When prison officials acted maliciously and sadistically use force to cause harm,
contemporary standards of decency are violated.”).
37
See Kingsley v. Hendrickson, 576 U.S. 389, 396–97 (2015).
38
See Bell v. Wolfish, 441 U.S. 520, 538 (1979).
39
U.S. Const. Amend. XIV, § 1.
40
See County of Sacramento v. Lewis, 523 U.S. 833, 848 (1998) (“It should not be
surprising that the constitutional concept of conscience shocking duplicates no traditional

captures conduct at the very far end of the culpability spectrum causing
intentional injury “unjustifiable by any government interest is the sort of
official action most likely to rise to the conscience-shocking level.”41
The current debate on addressing police brutality focuses on
remedying violations of these civil rights afforded to individuals by the
Constitution through claims brought under 42 U.S.C. §1983 or habeas
proceedings that can lead to monetary or equitable relief for plaintiffs. 42
However, according to the jurisprudence of the Court, the mere violation of
a constitutional right does not establish civil liability alone.43 Instead, a
plaintiff must also prove that the government entity does not enjoy immunity
from civil liability in federal court.44 This doctrine is intended to protect “all
but the plainly incompetent or one who knowingly violates established
law.”45 As a result, police officers are often shielded from liability in civil
suits.46 Current efforts focus on reform of the qualified immunity doctrine to
increase accountability for incidents of police brutality.47 But this doctrine is
embedded in common law and the Court has so far refused to move away
category of common-law fault, but rather points clearly away from liability, or clearly toward
it, only at the ends of the tort law’s spectrum of culpability. Thus, we have made it clear that
the due process guarantee does not entail a body of constitutional law imposing liability
whenever someone cloaked with state authority causes harm.”).
41
Id. (“It is, on the contrary, behavior at the other end of the culpability spectrum that
would most probably support a substantive due process claim; conduct intended to injury in
some way unjustifiable by any government interest is the sort of official action most likely
to rise to the conscience-shocking level.”) (citing Daniels v. Williams, 474 U.S. 327, 331
(1986)).
42
42 U.S.C. § 1983.
43
See Richard P. Shafer, When Does Police Officer's Use of Force During Arrest
Become So Excessive as to Constitute Violation of Constitutional Rights, Imposing Liability
Under Federal Civil Rights Act of 1871 (42 U.S.C.A. § 1983), 60 A.L.R. FED. 204 § 12
(2016).
44
Id.
45
Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986);
White, 580 U.S., at 551; See generally Pearson v. Callahan, 555 U.S. 223 (2009); see also
Anderson v. Creighton, 438 U.S. 635 (1987).
46
See Joanna C. Schwartz, How Qualified Immunity Fails, 127 YALE L.J. 2, 48-51
(2017); Somil Trivedi, Nicole Gonzalez Van Cleve, To Serve and Protect Each Other: How
Police-Prosecutor Codependence Enables Police Misconduct, 100 B.U. L. REV. 895, 931
(2020).
47
See William Baude, Is Qualified Immunity Unlawful?, 106 C ALIF. L. REV. 45, 88
(2018); lan K. Chen, The Intractability of Qualified Immunity, 93 NOTRE DAME L.
REV. 1937, 1938 (2018); Andrew Coan & DeLorean Forbes, Qualified Immunity: Round
Two, 78 WASH. & LEE L. REV. 1433, 1520 (2021); Fred O. Smith, Jr., Formalism, Ferguson,
and the Future of Qualified Immunity, 93 NOTRE DAME L. REV. 2093, 2113 (2016); Karen
M. Blum, Qualified Immunity: Time to Change the Message, 93 NOTRE DAME L. REV. 1887,
1899 (2018).

from existing precedent in this context. 48 The outcomes of the civil rights
cases in the Supreme Court and lower courts demonstrate reluctance to assign
liability to police officers while in the line of duty,49 with courts often
considering that police violence may take place tangentially to officers acting
within the scope of their duties.50
Civil claims against police officers and departments also do little to
deter future mistreatment and violence.51 Civil claims and relief may be
available against the municipality by which the officer is employed, but the
individual officer is rarely, if ever, asked to pay the price, even more rarely
prosecuted or punished for their wrongdoing. 52 Because cities insure
departments and indemnify individual officers, the officers themselves do not
face the material consequences of the civil claims filed against them. 53
Finally, in the rare instances of dismissals for highly recidivist police officers,
these same officers can often simply move to a different jurisdiction where
they enjoy a clean slate and may regain official duties.54
48
See, e.g., Wyatt v. Cole, 504 U.S. 158, 170 (1992) (Kennedy, J., concurring) (“Our
immunity doctrine is rooted in historical analogy, based on the existence of common-law
rules in 1871, rather than in ‘freewheeling policy choice[s].”’ (alteration in original) (quoting
Malley v. Briggs, 475 U.S. 335, 342 (1986))).
49
See Scott v. Harris 550 U.S. 372, 374 (2007).
50
See, e.g., Goolsby v. District of Columbia, 317 F. Supp. 3d 582, 594; Cromartie v.
District of Columbia, 479 F. App'x 355, 357 (D.C. Cir. 2012); Oberwetter v. Hilliard, 639
F.3d 545, 548–49, 555–56 (D.C. Cir. 2011); Wasserman v. Rodacker, 557 F.3d 635, 641
(D.C. Cir. 2009); Scott v. District of Columbia, 101 F.3d 748, 759 (D.C. Cir. 1996).
51
See Richard Emery, Ilann Margalit Maazel, Why Civil Rights Lawsuits Do Not Deter
Police Misconduct: The Conundrum of Indemnification and a Proposed Solution, 28
FORDHAM URBAN L.J. 2 (2000); Raoul Shah, Licensed to Kill? An Analysis of the Standard
for Assessing Law Enforcements Criminal Liability for Use of Deadly Force, 39 MITCHELL
HAMLINE L.J. PUB. POL’Y & PRAC. 1, 26-27 (2018).
52
See Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. REV. 885, 890, 896
(2014); Theodore Eisenberg & Stewart Schwab, The Reality of Constitutional Tort
Litigation, 72 CORNELL L. REV. 641, 686 (1987) (finding no evidence of officers paying
directly for a judgment in the court records of civil rights cases); Lant B. Davis, John H.
Small & David J. Wohlberg, Suing the Police in Federal Court, 88 YALE L.J. 781, 810-12
(1979) (finding, in a 149-case sample of § 1983 lawsuits brought that “[t]he individual
defendants were almost always indemnified” and, “in almost every case, the individual
defendant suffered no financial loss because of the suits”).
53
See John Rappaport, How Private Insurers Regulate Public Police, 130 HARV. L.
REV. 1539, 1542 (2017) (“Municipalities nationwide purchase insurance to indemnify
themselves against liability for the acts of their law enforcement officers. These insurance
policies shield the government from financial responsibility, often including punitive
damages, for common law and constitutional torts such as assault and battery, excessive
force, discrimination, false arrest, and false imprisonment.”).
54
See Martha L. Shockey-Eckles, Police Culture and the Perpetuation of the Officer
Shuffle: The Paradox of Life Behind ‘The Blue Wall’, 35 HUMANITY & SOC’Y 290, 300

2. The Insufficiency of Existing Criminal Remedies for Police Brutality
Civil rights are integral pillars of our legal system, but they are not
expressly protected or offensively litigated in the criminal legal system.
Claims about their violation arise under civil, as opposed to criminal law, as
plaintiffs cannot bring criminal charges against their chosen defendant. While
civil rights litigation is critically important for plaintiffs seeking redress for
constitutional violations they have faced, the scarcity of criminal statutes
specifically addressing circumstances of police brutality has contributed to a
vacuum of accountability in the criminal legal system, leading to significant
levels of impunity for those officers who commit egregious acts against
individuals that they place within their custody or control.
Currently, the state criminal statutes addressing police brutality, if
available at all, focus on the use of excessive force primarily in the context
of searches and seizures. 55 These statutes largely address circumstances
where police officers use force in excess of what was reasonably necessary
in a given situation.56 Several decisions by the Court have focused on this
question of what constitutes force in excess of what is reasonably necessary. 57
While the Court’s decisions on civil liability for constitutional violations do
not control state criminal law, states have incorporated the reasonableness
(2011) (“In urban areas such as St. Louis, the officer who resigns rather than face licensure
revocation typically finds employment in a neighboring municipality with relative ease.”);
Ben Grunwald & John Rappaport, The Wandering Officer 129 (6) YALE L. J. 1676, 1676.
55
See e.g. AB 392 and Peace Officer Use of Force Standards, CA.Gov (2019),
https://post.ca.gov/Use-of-Force-Standards. In fact, as of 2015, twelve states fell below this
standard by broadly refusing to impose criminal liability on officers who used deadly force
to seize a fleeing felon--the practice ruled unconstitutional under the Fourth Amendment in
Graham. Chad Flanders & Joseph Welling, Police Use of Deadly Force: State Statutes 30
Years After Garner, 35 ST. LOUIS U. PUB. L. REV. 109, 121-24 (2015). Though some states
fall below the constitutional standard, the majority of states have use-of-force statutes that
employ a reasonableness standard, often focusing on the reasonableness of the officer's
beliefs. Cynthia Lee, Reforming the Law on Police Use of Deadly Force: De-Escalation,
Preseizure Conduct, and Imperfect Self-Defense, 2018 U. ILL. L. REV. 629, 654-55.
56
See id.
57
See Tennessee v. Garner, 471 U.S. 1 (1985) (holding police use of deadly force
violates the Fourth Amendment unless the suspect poses a threat of death or serious harm to
the police officer or others); Graham v. Connor, 490 U.S. 386 (1989) (holding all police uses
of force during an arrest, investigatory stop, or other seizure are evaluated by an objective
reasonableness standard); Scott v. Harris, 550 U.S. 372, 382 (2007) (“Garner did not
establish a magical on/off switch that triggers rigid preconditions whenever an officer’s
actions constitute ‘deadly force.’ Garner was simply an application of the Fourth Amendment
‘reasonableness’ test . . . to the use of a particular type of force in a particular situation.”).

standard of the Fourth Amendment in criminalizing officers’ intentional use

of excessive deadly force.58
As in civil cases, officers accused of using excessive force can escape
liability if they can show that force was justified under their reasonable
perception and assessment of the circumstances, or because they were acting
in self-defense. State statutes and courts have also expanded the range of
conduct that qualifies as self-defense where it is a police officer invoking this
justification.59 Generally, a defendant claiming self-defense must show that
their use of force was necessary to defend themselves from imminent danger,
and that the force used was proportional to the force threatened. 60 However,
most states do not impose these same requirements for a successful self-
defense claim raised by a police office for deadly force used to effectuate an
arrest or prevent an escape. 61 Without including requirements for necessity
and proportionality for acting in self-defense, excessive force criminal
statutes give deference to officer discretion and judgment regarding their
perception of imminent danger and the level of the threatened violence.62
On the federal level, 18 U.S.C. §242 provides for prosecution of local,
state, or federal officials alleged to have “willfully” violated the rights of
others under the color of law.63 Nevertheless, very few cases involving rights
violations have resulted in investigation and prosecution under this statute
due to the very high evidentiary requirement that the prosecutor prove—
beyond a reasonable doubt—that the accused officer had the specific intent
to violate a constitutional right.64 The exact meaning of the specific intent to
58
See FRANKLIN E. ZIMRING, WHEN POLICE KILL 176 (2017).
59
See id.
60
See Cynthia Lee, Reforming the Law on Police Use of Deadly Force: De-Escalation,
Preseizure Conduct, and Imperfect Self-Defense, 2018 U. ILL. L. REV. 629, 655–56, 658-59,
666-68 (tracking civilian self-defense laws).
61
See id.
62
See Rachel A. Harmon, When Is Police Violence Justified?, 102 NW. U. L. REV.
1119, 1166-83 (2008).
63
18 U.S.C. § 242 (West 2020).
64
See Human Rights Watch, Shielded from Justice: Police Brutality and Accountability
in the United States, Federal Passivity,
https://www.hrw.org/legacy/reports98/police/uspo33.htm. (“The poor performance of
federal prosecutors is due […] to the added requirement, as interpreted by the courts, that
prosecutors prove the accused officer's ‘specific intent’ to deprive an individual of his or her
civil rights. As a result of the ‘specific intent’ requirement and other stringent standards,
federal prosecutors - who like their local counterparts are interested in winning cases, not
merely trying them - may be less than eager to pursue cases against police officers”); Joanna
R. Lampe, Federal Police Oversight: Criminal Civil Rights Violations Under 18 U.S.C. §
242, Congressional Research Service: Legal Sidebar 3 (June 15, 2020)
https://crsreports.congress.gov/product/pdf/LSB/LSB10495 (“By its text, Section 242
applies only to violations that are committed ‘willfully’… In Screws, a defendant convicted

violate a constitutional right is unclear: it does not necessarily require that the
officer be considering the Constitution while acting, but at the same time it is
not sufficient that the officer acted intentionally in a way that a court only
later determines violated an individual’s constitutional rights. 65 At a
minimum, an officer must have acted in “open defiance or reckless
disregard”66 of a clearly articulated constitutional prohibition, while most
courts require proof that an officer acted with “bad purpose or evil motive”
to deprive a victim of a constitutional right. 67 Federal criminal law thus
provides an even narrower window for accountability of police officers than
most state criminal laws.
3. The Inadequate Implementation of the International Convention against

Torture into Domestic Law
Generally, police brutality rising to the level of torture is widely

covered in international and human rights law.68 The International
Convention against Torture (“CAT”) codifies customary international law on
the prohibition of torture committed by public officials,69 and is the most
important international treaty to deal with abuse of state power and torture. 70
of violating the statute now codified as Section 242 argued that the law was void for
vagueness—that is, it violated the Fifth Amendment’s Due Process Clause because it did not
give potential defendants clear notice of the conduct it proscribed. The Supreme Court
rejected that argument by interpreting ‘willfully’ to require the government to show that a
defendant acted with a ‘specific intent to deprive a person’ of constitutional rights or with
‘open defiance or in reckless disregard of a constitutional requirement.”).
65
See David Alan Sklansky, What the Feds Can and Cannot Do in the Brown and
Garner Cases, Stanford Law School Blogs, December 5, 2014.
66
Screws v. United States, 325 U.S. 91, 105 (1945).
67
Id. at 103.
68
See, inter alia, the International Covenant on Civil and Political Rights, art. 7; the
European Convention on Human Rights, art. 3; the American Convention on Human Rights,
art. 5; the African Charter on Human and Peoples’ Rights, art. 5; the Declaration on the
Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment of 1975; the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment of 1984; the Inter-American
Convention to Prevent and Punish Torture of 1985; and the Rome Statute of the International
Criminal Court, arts. 7, 8. See also the prohibition of torture in the Geneva Conventions of
12 August 1949 and the Additional Protocols thereto of 1977.
69
Article 1, Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment art. 1, Dec. 10, 1984, S. TREATY DOC. No. 100-20 (1988), 1465
U.N.T.S. 85, available at http://perma.cc/E68J-A99Q [Hereinafter Convention Against
Torture]
70
See American Civil Liberties Union, FAQ: The Convention Against Torture, (2021),
https://www.aclu.org/other/faq-convention-against-
torture#:~:text=General%20Assembly%20in%201984%20and,countries%20have%20ratifi
ed%20the%20Convention.

With over 140 participating countries, CAT aims to prevent torture and cruel,
inhuman, or degrading treatment or punishment in all circumstances.
According to CAT, torture is “any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person”71 for the
purposes of obtaining information, a confession, for punishing this person or
another, for intimidation or coercion or for any reason based on any kind of
discrimination by a public official. 72 This definition includes acts that inflict
both physical and mental pain and suffering committed by someone acting
under the color of law.73 This prohibition against torture has also attained the
status of a jus cogens rule, a peremptory norm of international law that is
binding on all states and cannot be derogated from. 74 In addition to defining
torture, CAT compels government investigation into allegations of torture. 75
The United States signed CAT in 1988, and Congress ratified it in
1994, subject to certain declarations, reservations, and understandings. 76 This
ratification led to the passage of 18 US Code § 2340A, which provides, in
part, that torture committed by public officials under color of law against
persons within the public official’s custody or control is prohibited. 77 While
ratification was a necessary step toward the U.S.’s implementation of CAT’s
prohibition against torture, this provision was unfortunately given only
extraterritorial application: that is it only applies to acts of torture committed
outside of the United States. To date, Congress has not passed a federal statute
criminalizing the same acts when committed domestically.
At the time when Congress was preparing implementing legislation
to execute the terms of CAT, President Reagan transmitted the Convention
to the Senate along with a section-by-section analysis of the text, as provided
by the State Department. 78 According to this analysis, the definition of torture
71
Convention Against Torture art. 1.
72
Id.
73
Id.
74
See Prosecutor v. Furundzija [1998] ICTY 3, 10 December 1998, paragraphs 147-
157
75
Id. art 12.
76
The United States has signed and ratified CAT subject to certain declarations,
reservations, and understandings See SEN. EXEC. RPT. 101-30, Resolution of Advice and
Consent to Ratification (1990); See Human Rights Committee, general comment No. 20
(1992) on the prohibition of torture or other cruel, inhuman or degrading treatment or
punishment, para. 3; and Council of Europe, Guidelines on human rights and the fight against
terrorism (Strasbourg, Council of Europe Publishing, 2002), art. IV.
77
See 18 U.S.C. 2340A.
78
President’s Message to Congress Transmitting the Convention Against Torture and
Other Cruel, Inhuman, or Degrading Treatment or Punishment, Summary and Analysis of
the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment, May 23, 1988, S. TREATY DOC. NO. 100-20, reprinted in 13857 U.S. Cong.
Serial Set at 3 (1990).

was to be interpreted in a “relatively limited fashion, corresponding to the

common understanding of torture as an extreme practice which is universally
condemned.”79 This interpretation was intended to separate out the category
of acts qualifying as torture from other egregious levels of violence that were
not seen as extreme. Paradigmatically, the State Department suggested that
mistreatment by the police that constitutes police brutality “while deplorable,
does not amount to ‘torture,’” a term which is “usually reserved for extreme,
deliberate, and unusually cruel practices...[such as] sustained systematic
beating, application of electric currents to sensitive parts of the body, and
tying up or hanging in positions that cause extreme pain.” 80 As a result of this
interpretation regarding an act’s level of severity and extremity to constitute
torture, Congress decided not to enact any new law criminalizing acts of
torture committed within the United States under the presumption that these
acts would “be covered by existing applicable federal and state statutes,”
including statutes criminalizing assault or homicide. 81
While it is true that some acts of torture may be covered under existing
statutes, there are certain fundamental problems with this presumption. As a
general matter, the conduct that the crimes of assault, battery, or homicide
capture is different from the conduct that falls under the definition of torture
in that these offenses are either underinclusive or as a whole distinct from
torture.82 First, the level of mistreatment combined with the fact that this
mistreatment comes directly from the exercise of abusive state power over an
individual render the conduct of criminal torture inherently more serious than
regular assault or battery offenses. Second, the definition of torture covers
aspects and nuances of mistreatment by public officials not traditionally
anticipated in assault or battery criminal statutes, including but not limited to
the recognition of infliction of mental pain and suffering, the nature of its
intent element, and the specific purposes for which a public official might
commit an act of torture, such as obtaining information or a confession, to
punish, intimidate or coerce, or to discriminate against another.83 Finally,
existing statutes criminalizing assault, battery, or homicide may punish other
criminal acts that an individual commits while also committing criminal
79
Id. citing to European Court of Human Rights, Judg. Court, January 18, 1978, Case
of Ireland v. United Kingdom Series A, No. 25, 2 E.H.R.R. 25, 80; European Commission
of Human Rights, Op. Com., 5 November 1969, Greek Case, § 11, XII p. 501.
80
Id. at 4. Presumably, police brutality of extreme severity could rise to the level of
“torture.”
81
S. Rept. 103-107, at 59 (1993) (discussing legislation implementing CAT Articles 4
and 5) (“these places would, as would acts of torture committed within the United States, be
covered by existing applicable federal and state statutes” for the purposes of defining the
territoriality of the United States).
82
See 2010 WL 334694 (Mich. Ct. App. Jan. 28, 2010).
83
See infra II.A & II.B for the elements of the criminal torture statute.

torture, but they do not explicitly punish torture as an offense. The crime of
torture has a certain shock value in society because it signals instances of
severe mistreatment of individuals by those bestowed with the power of the
state, a particular kind of violence that is not established in any of the other
offenses Congress anticipated would cover acts of torture. By failing to
criminalize torture domestically through the full and direct implementation
of CAT, Congress left open the critical question of whether torture committed
by public officials is legal in the United States.
In an effort to address concerns about the inadequate protection
against torture within the United States and the arguably incomplete
implementation of CAT, Congress suggested that in general the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the U.S. Constitution afford
protections against torture and therefore no additional legislation is
necessary84 However, Article 4 of CAT, regarding the implementation of the
convention in the domestic legislation of state parties, specifically calls for
state parties to “ensure that all acts of torture are offences under its criminal
law […] [and that] each state party shall make these offences punishable by
appropriate penalties which take into account their grave nature.” 85 Remedies
for constitutional violations—including the Fourth, Eighth, and Fourteenth
Amendments— are civil in nature and thus do not provide adequate redress
under CAT for acts of torture by police officers and other public officials
which require criminal sanctions.
The jurisprudence of the United Nations Committee Against Torture,
the body monitoring the implementation of CAT by state parties, illustrates
this legal gap in our federal and state legislation on torture.86 In fact, some of
the conduct that the Committee has identified as torture is reminiscent of
cases of police brutality that would come under the proposed criminal torture
statute, but currently would not result in accountability. For instance, in
Boniface Ntikaranhera v. Burundi, the complainant was slapped, chased, and
then shoved, and kicked violently in the back and elsewhere by four police
officers.87 Due to the force of the blows, the complainant started bleeding
from the mouth and crying out in pain, but for ten minutes, the police officers
continued to strike and slap him across the face. 88 The Committee found that
84
S. Exec. Rep. 101-30 – 1990 at 19.
85
Convention Against Torture art 4.
86
Id arts 17-18; See Office of the United Nations High Commissioner on Human
Rights, Convention Reporting Status, at [http://www.unhchr.ch/tbs/doc.nsf/Rep
Statfrset?OpenFrameSet]. A second report, due on Nov. 19, 2001, was submitted to the
Committee on May 6, 2005. Second Periodic Report of the United States of America to the
Committee Against Torture, May 6, 2005, available at http://www.state.gov/g/drl/rls/.
87
CAT/C/52/D/503/2012 Paras 2.1, 2.2.
88
Id.

this treatment by the police constituted torture. 89 In Dragan Dimitjevic v.

Serbia and Montenegro, police officers had handcuffed the complainant to a
radiator and a bicycle, and, while incapacitated, several officers hit him with
a metal bar and their nightsticks and “kicked and punched him all over his
body while insulting his ethnic origins and cursing his “gypsy mother.””90
The Committee determined that the conduct constituted torture. 91 In Dimitrov
v. Serbia and Montenegro, the complainant was arrested and taken to a police
station, where, during interrogation, the police “struck [Dimitrov] repeatedly
with a baseball bat and a steel cable, and kicked and punched him all over his
body” for thirteen hours.92 The Committee concluded that this pain or
suffering amounted to torture. 93 In Danilo Dimitnrjevic v. Serbia and
Montenegro,94 the complainant was forced to strip, handcuffed, and beat by
the police with a metal club at the police station, and was then left in a room
without access to food, water, a lavatory, or a doctor. 95 The Committee
determined that this treatment constituted torture. 96
Outside of the United States, countries have directly fulfilled their
obligation under CAT to criminalize torture committed by public official: the
offense is extremely common across jurisdictions and is uniformly
criminalized in common law jurisdictions. For example, the Canadian
criminal code provides, “every official, or every person acting at the
instigation of or with the consent or acquiescence of an official, who inflicts
torture on any other person is guilty of an indictable offence.”97 Courts have
emphasized the importance of criminalizing these acts due to “the effect that
the treatment or punishment may have on the person on whom it is
imposed.”98 Australia’s Division 274 of the Criminal Code Act criminalizes
police acts of torture committed by public officials.99 The statute’s legislative
89
Id. para 7.
90
U.N. Comm. Against Torture, Dragan Dimirtrijevic v. Serbia and Montenegro, U.N.
Doc. CAT/C/33/D/207/2002 Para 12.1. (Nov. 29, 2004), available at
http://tinyurl.com/8ya3xbp 162.
91
Id. para 5.3.
92
U.N. Comm. Against Torture, Jovica Dimitrov v. Serbia and Montenegro, U.N. Doc.
CAT/C/34/D/171/2000 (May 3, 2005).
93
Id. 7.1.
94
U.N. Comm. Against Torture, Danilo Dimitrijevic v. Serbia and Montenegro, 2.1,
U.N.Doc. CAT/C/35/D/172/2000 (Nov. 16, 2005).
95
Id. para 2.2.
96
Id. para 7.1.
97
See Criminal Code, R.S.C., 1985, c. C-46.
98
See Government of Canada, Department of Justice, Section 12 - Cruel and unusual
treatment of punishment (citing to (R. v. Smith, [1987] 1 S.C.R. 1045 at 1072; R. v. Morrisey,
2000 SCC 39 at paragraph 26).
99
See Australian Government, Attorney’s General Department, Prohibition on torture
and cruel, inhuman, or degrading treatment or punishment.

history reveals that the government aimed to target acts of cruel, inhuman or
degrading treatment, including “acts carried out by police officers using
excessive force, such as using restraints where they are not required, using a
weapon to punish an offender for not cooperating or unduly prolonged
detention that causes mental harm.” 100 New Zealand has an equivalent
Crimes of Torture Act.101 The United Kingdom, in addition to established
common law provisions, passed section 134 Criminal Justice Act, making it
a criminal offence for any public official to “intentionally inflict severe pain
or suffering on another in the performance […] of his official duties.”102
Finally, South Africa has enacted the Prevention and Combatting of Torture
of Person Act criminalizing torture committed by public official. 103 This
comparative context highlights some more the atypical position of the United
States in not having adopted of a statute specifically criminalizing torture
domestically.
B. The Need for a Particularized Criminal Statute
Under the existing legal framework in the United States, the police
have the singular authority to exercise the state’s monopoly on the use of
force in situations that require individual judgment and discretion. The
breadth of police officers’ and other public officials’ power to exercise force
in the contexts of searches and seizures, and within jails and prisons, contrasts
with the little room to react permitted of individuals subject to this power.
Today, police accountability is even more important given the growing
militarization of the police and the attendant increase in their abusive
potential.104 Unless our legal system establishes and institutionalizes
objective means of accountability, the existing imbalance of power has the
potential to lead to mistakes and abuses with few opportunities for redress.105
Establishing accountability through a criminal statute has the
advantage of combining the potential deterrent effects of criminal law with
the social signaling of a collective condemnation of police brutality and
existing exceptionalism for officers.106 Barry Friedman has argued that an
important reason behind problematic policing practices is that legislators
have not adopted rules to govern police practices but have instead allowed
100
See Crimes Torture Act, No. 148, Dec. 26, 1988, Federal Register of Legislation.
101
Crimes of Torture Act in 1989.
102
134 Criminal Justice Act in 1988.
103
Act No. 13 of 2013: Prevention of Combating and Torture of Persons Act, 2013
104
See infra Section I.B.4.
105
See John V. Jacobi, Prosecuting Police Misconduct, 2000 WIS. L. REV. 789, 802
(2000).
106
See id; Alexa P. Freeman, Unscheduled Departures: The Circumvention of Just
Sentencing for Police Brutality, 47 HASTINGS L.J. 677,712-5 (1996).

the police to police themselves. 107 The proposed model statute represents a
way of providing such rules to govern police brutality.
1. The Concern with Criminalization and Overcriminalization
Significant overlap exists between civil claims available to plaintiffs

and potential criminal statutes addressing police brutality. Yet, as Part I.A.
of this article has shown, this overlap does not necessarily provide additional
protections for victims of police brutality. On the other hand, progressive
legislators, prosecutors, and social justice activists recognize that existing
criminal legal regimes over-criminalize behaviors, and advocate for
decriminalization of offenses as a means of resolving some of the harms of
policing and mass incarceration.108 These debates on overcriminalization and
decriminalization are an important pillar of criminal law reform, particularly
regarding offenses that fall in the category of mala prohibita, or conduct that
constitutes an unlawful act only by virtue of statute or judicial precedent.109
One might argue, thus, that urging legislatures to add yet another criminal
offense works against these reform efforts.110 However, the crime of torture
committed by public official has long been considered a crime malum in se,
that is an offense inherently that a court or legislature recognizes as such:111
torture has been a crime in countries throughout the world for a long time, as
107
See BARRY FRIEDMAN, UNWARRANTED: POLICING WITHOUT PERMISSION 15, 27
(2017).
108
See e.g. Darryl Brown, Democracy and Decriminalization, 86 TEX. L. REV. 223, 225
(2007) (describing legislative decriminalization broadly as including “repealing or
narrowing criminal statutes, reducing offense severity, and converting low-level crimes to
civil infractions”); Alexandra Natapoff, Misdemeanor Decriminalization, 68 VAND. L. REV.
1055, 1065 (2015); Jordan Blair Woods, Decriminalization, Police Authority, and Routine
Traffic Stops, 62 UCLA L. REV. 672, 672 (2015); DOUGLAS N. HUSAK, LEGALIZE THIS! THE
CASE FOR DECRIMINALIZING DRUGS 11-12 (2002); John C. Coffee, Jr., Does “Unlawful”
Mean “Criminal”?: Reflections on the Disappearing Tort/Crime Distinction in American
Law, 71 B.U. L. REV. 193, 193 (1991).
109
See New Jersey v. T.L.O., 469 U.S. 325, 379 & n.21 (1985); Jordan v. De George,
341 U.S. 223, 236-38 (1951).
110
Getting such legislation to pass however, may be difficult due to powerful police unions.
See L. Song Richardson & Catherine Fisk, Police Unions, 85 GEO. WASH. L. REV. 712
(2017); Stephen Rushin, Police Union Contracts, 66 DUKE L.J. 1191 (2017).
111
See Jeremy Waldron, Torture and Positive Law: Jurisprudence for the White House,
105 COLUM. L. REV. 1681, 1693 (2005); 1 William Blackstone, Commentaries *54
(“[C]rimes and misdemeanors, that are forbidden by the superior laws, and therefore stifled
mala in se; such as murder, theft, and perjury . . . contract no additional turpitude from being
declared unlawful by the inferior legislature. For that legislature in all these cases acts only
. . . in subordination to the great lawgiver, transcribing and publishing his precepts.)

well as recognized as a peremptory rule of international law. 112 Thus

criminalizing torture does not represent yet another attempt by positive law
to prohibit conduct but rather reflects and codifies the universal
condemnation of state power abuse against individual rights.
What is more, another important pillar of criminal legal system
reform is improving accountability for police misconduct and brutality. 113 A
state criminal statute with a particularized offense committed by police
officers and other public officials can pave the way for improved
accountability for acts of police brutality without a risk that it will enhance
state power to prosecute lay people who are otherwise the direct victims of
the existing over-criminalized system. Instead, a criminal statute that is
specifically designed to address egregious levels of violence against
individuals in the custody or control of public officials is a vehicle to
eliminate prosecutorial discretion in cases involving harm by public officials.
Under existing criminal law, local prosecutors find themselves in a precarious
position in bringing charges against police officers. Prosecutors work hand-
in-hand with the local police in the normal operations of the office: a
prosecutor relies on police officers to report crimes, provide evidence linking
the accused to such crimes, and identify witnesses for the prosecutor to
consult with in bringing criminal charges.114 This relationship informs the
112
See MICHAEL RATNER & REED BRODY, The Pinochet Papers: The Case of Augusto
Pinochet in Spain and Britain 39; 9. See In re Estate of Ferdinand E. Marcos, Human R (9th
Cir. 1994) ("'[T]he right to be free from official torture is fundamental and universal a right
deserving of the highest status under international law, a norm of jus cogens.'" (quoting
Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 717 (9th Cir. 19); Convention
for the Protection of Human Rights and Fundamental Freedoms art. 3, 15 Nov. 4, 1950, 213
U.N.T.S; International Covenant on Civil and Political Rights, Arts 4(2), 7 adopted Dec. 16,
1966, S. Exec. Doc. No. E, 95-2 (1978), 999 U.N.T.S. ("[n]o one shall be subjected to torture
or to cruel, inhuman or degrading treatment or punishment" and article 4(2) just as explicitly
states that "[n]o derogation" from article 7 is permitted).
113
See Corinthia A. Carter, Police Brutality, the Law & Today’s Social Justice
Movement: How the Lack of Police Accountability Has Fueled #Hashtag Activism, 20
C.U.N.Y L. REV. 521, 523 (2017); Samuel Walker, “Not Dead Yet”: The National Police
Crisis, A New Conversation About Policing, And The Prospects For Accountability-Related
Police Reform, 2018 U. ILL. L. REV. 1777, 1787-8 (2018); Walter Katz, Enhancing
Accountability and Trust with Independent Investigations of Police Lethal Force, 128 HARV.
L. REV. F. 235 (2015).
114
See Somil Trivedi, Nicole Gonzalez Van Cleve, To Serve and Protect Each Other:
How Police-Prosecutor Codependence Enables Police Misconduct, 100 B.U. L. REV. 895,
902 (2020) (noting the culture of silence supported by the prosecutor offices); Kate Levine,
Who Shouldn't Prosecute the Police, 101 IOWA L. REV. 1447, 1450 (2014) (“[Prosecutors]
rely on the police for successful convictions, and therefore, must have a good working
relationship with the police for professional advancement.”); Laurie L. Levenson, Police
Corruption and New Models for Reform, 35 SUFFOLK U. L. REV. 1, 22 (2001) (“[P]rosecutors
often enjoy too close of a relationship with local police and are therefore reluctant to turn
against those with whom they have worked.”).

micropolitics between police departments and their corresponding district

attorney’s offices, and has established a culture of deference to police officer
discretion.115 This close working relationship also creates practical
difficulties when the two parties are positioned against one another, such as
when a police officer is under examination for mistreating an individual while
on duty.116 As a result, public officials face little or no accountability for their
actions, and work largely unchecked by the criminal legal system.117
Overcoming this resistance to prosecuting public officials by
highlighting the particularly heinous nature of their conduct through
criminalizing it is a counterintuitive but powerful approach. Rank and file
police officers would see a significant difference between investigating a
fellow officer for what they, whether correctly or not, may consider force
necessary for execution of one’s policing duties, on the one hand, and
investigating an officer for acts that are so egregious as to potentially satisfy
the elements of the proposed criminal torture statute, on the other. If this is
the case, prosecutors wouldn’t be risking their relationship with their local
police department by prosecuting an individual officer for such grave
conduct.118 Additionally, juries would be more likely to convict officers for
a heinous crime such as torture for police brutality than for existing assault
and battery offenses precisely because the conduct encapsulated in the crime
of torture falls most clearly outside of the scope of regular policing duties and
force deemed necessary, even when accounting for officer discretion. The
adoption of a particularized offense addressing public official conduct that
raises to the level of torture can reduce the perception of impunity for police
officers without threatening yet another positive law offense against civilians.
2. The Deterrent Function of the Criminal Torture Statute
State criminal statutes apply directly to individuals. This closer reach

to individual police officers and other public officials may be more successful
at regulating police officer conduct and deterring egregious misconduct than
115
See id 905-906; See Alexa P. Freeman, Unscheduled Departures: The
Circumvention of Just Sentencing for Police Brutality, 47 HASTINGS L.J. 677, 719 (1996)
(discussing the conflict prosecutors face between their interest to investigate and prosecute
police brutality and their interest to maintain working relations with police).
116
See id. at 898 (2020) (identifying prosecutors using their discretion primarily to cover
police criminality).
117
Amelia Thomson-Deveaux, Nathaniel Rakich, and Likhitha Butchireddygari, Why
It’s So Rare for Police Officers to Face Legal Consequences, FIVETHIRTYEIGHT (June 4,
2020, 6:00AM) (Updated on Sept. 23, 2020 at 4:53PM),
https://fivethirtyeight.com/features/why-its-still-so-rare-for-police-officers-to-face-legal-
consequences-for-misconduct/
118
See FRANKLIN E. ZIMRING, WHEN POLICE KILL 183 (2017).

existing civil remedies. Particularizing the type of criminal charges brought

against police officers and other public officials in relation to criminal acts
that also rise to the level of unconstitutional deprivations of civil rights may,
in turn, lead to increased deterrence of such constitutional violations and yield
lower rates of police brutality. 119
Social science research on the relationship between crime and
deterrence has shown that deterrence is a function of one’s perceived
likelihood of punishment: the more the certainty of punishment for a criminal
transgression increases, the more a potential offender may be dissuaded from
committing this transgression.120 A state statute criminalizing torture
committed by public official would establish a new legal basis to prosecute
acts that go beyond regular assault or battery offenses. It would thus likely
deter conduct intrinsic to the crime of torture that would otherwise slip
through legal loopholes created by the underinclusive or overall distinct
definitions of these other criminal offenses.121 Significantly, in a recent
quantitative study assessing whether the criminalization of torture deters
specifically torture committed by police officers, Mark Berlin found that
states adopting strong criminal laws against police torture experience a
statistically significant reduction of police torture.122
Criminal law also carries an important expressive social function in
setting acceptable standards of societal behavior. 123 On an individual level,
redefining relevant police misconduct and brutality as torture may prompt
police officers to reconsider their actions. An experimental study conducted
by Geoffrey Wallace found that respondents were significantly less likely to
condone torture when presented with a precise formulation of a legal
prohibition against torture.124 In many instances where states have
criminalized torture committed by public officials, the new offense was
incorporated into police training manuals educating officers about the
119
See Alison L. Patton, The Endless Cycle of Abuse: Why 42 U.S.C. 1983 is Ineffective
in Deterring Police Brutality, 44 HASTINGS L.J. 3 (1993); Richard Emery, Ilann Margalit
Maazel, Why Civil Rights Lawsuits Do Not Deter Police Misconduct: The Conundrum of
Indemnification and a Proposed Solution, 28 FORDHAM URBAN L.J. 2 (2000).
120
See Hyeran Jo and Beth A. Simmons, Can the International Criminal Court Deter
Atrocity?, 70 INT’L ORG. 443, 446-9 (2016).
121
See supra Section I.A.3; see also Mark S. Berlin, Does Criminalizing Torture Deter
Police Torture? AM. J. POL. SCI. 1, 30 (23 November, 2021).
122
See Mark S. Berlin, Does Criminalizing Torture Deter Police Torture? AM. J. POL.
SCI. 1, 25 (23 November, 2021).
123
See generally, Henry Hart, The Aims of the Criminal Law, 23 LAW & CONTEMP.
PROBS. 401, 401-41 (1958).
124
Geoffrey Wallace, International Law and Public Attitudes Toward Torture: An
Experimental Study, 67 INT’L ORG 105, 128-9(2013)

reframed definition of certain actions and their gravity.125 On a larger

community level, criminalization can influence beliefs and behavior by
communicating intersubjectively conduct that is condemnable and carrying
strong social stigma that increases the social and reputational costs for those
who transgress.126
Criminalizing torture committed by public official can also mobilize
survivors by raising legal consciousness and providing survivors with a new
lens through which to view experiences that may have previously been
treated as ordinary or banal.127 This mobilization can, in turn, increase both
accountability for perpetrators of police brutality and begin to change
society’s perception of the limits of police impunity. Due to its particularized
nature, the adoption of a criminal torture statute into state law that specifically
captures police officer conduct is more likely to produce successful
convictions and thus create a momentum that motivates survivors to bring
their cases to light.128 In the context of domestic violence, Sally Merry argues
that “redefining battering as a crime rather than a life-style choice encouraged
women to resist the violence and persuaded the criminal justice system to
take the offense more seriously.”129 Identifying police brutality as torture
similarly gives survivors a renewed vocabulary to define the terror and
cruelty police brutality inflicts against individuals and communities.
Overall, though criminal prosecution as a single means for police
reform has limitations,130 utilizing criminal statutes as a vehicle for
addressing police misconduct can contribute to a general policing reform in
instances of police brutality.131 Whereas civil claims are severely limited by
existing qualified immunity doctrine, and any actual consequences on
125
See e.g. New Zealand report to the Committee against Torture. UN Doc.
CAT/C/29/Add.4, para. 10 (1997).
126
See, e.g., Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 VA.
L. REV. 349, 350-1 (1997) (setting forth a “social influence conception of deterrence”). Cf.
JOHN CONROY, UNSPEAKABLE ACTS, ORDINARY PEOPLE: THE DYNAMICS OF TORTURE
(2000) (discussing police organizations’ ability to insulate themselves from social stigma in
ways that perpetuate prior violations).
127
BETH A. SIMMONS, MOBILIZING FOR HUMAN RIGHTS: INTERNATIONAL LAW IN
DOMESTIC POLITICS 140 (2009).
128
Id. at 144-48.
129
SALLY ENGLE MERRY, HUMAN RIGHTS AND GENDER VIOLENCE: TRANSLATING
INTERNATIONAL LAW INTO LOCAL JUSTICE 180 (2005).
130
See Mary M. Cheh, Are Lawsuits an Answer to Police Brutality?, in POLICE
VIOLENCE: UNDERSTANDING AND CONTROLLING POLICE ABUSE OF FORCE 247, 247 (Geller
& Toch eds., 1996).
131
See NICOLE GONZALEZ VAN CLEVE, CROOK COUNTY: RACISM AND INJUSTICE IN
AMERICA'S LARGEST CRIMINAL COURT 85 (2016) (quoting People v. Wabash, ST. LOUIS &
PAC. RY. CO., 12 Ill. App. 263, 265 (1882)); Angela J. Davis, The Power and Discretion of
the American Prosecutor, 49 DROIT ET CULTURES 55 (2005).

individual police officers are minimal, criminal prosecutions of police

officers and public officials would create direct consequences for
misconduct.132 Increased accountability for individual officers, particularly
within the criminal legal system, can establish a meaningful deterrent for
other police officers and departments that together result in wider and deeper
changes to policing practices.133
3. The Unique Retributive Function of the Criminal Torture Statute
Much of the focus on retribution in criminal law narrows in on the

role desert plays as a distributive principle for legal sanctions taken against
blameworthy offenders.134 But retribution is not merely tit-for-tat. In
discussing punishment for thieves, Kant asserted that “[w]hoever steals
makes the property of everyone else insecure and therefore deprives himself
(by the principle of retribution) of security in any possible property.” 135 The
description of the offense of larceny as the deprivation of security of all in
any property and not just the taking of the individual property of another, and
the attendant harm extending beyond the immediate victim’s interests
provide insight to an important underlying principle applicable to
criminalizing acts of public officials such as police officers. 136 The communal
harm of insecurity here characterizes a factual state of affairs, where the rights
of individuals to, for instance, property, respect for bodily autonomy, and
even life lack sufficient protection. 137
132
See Arthur H. Garrison, Criminal Culpability, Civil Liability, and Police Created
Danger: Why and How the Fourth Amendment Provides Very Limited Protection from Police
Use of Deadly Force, 28 GEO. MASON U. CIV. RTS. L.J. 241, 252 (2018).
133
See Hyeran Jo and Beth A. Simmons, Can the International Criminal Court Deter
Atrocity?, 70 INT’L ORG. 443, 444 (2016).
134
See generally ANTONY DUFF, PUNISHMENT COMMUNICATION AND COMMUNITY 80
(2001); ANDREW VON HIRSCH AND ANDREW ASHWORTH, PROPORTIONATE SENTENCING:
EXPLORING THE PRINCIPLES (2005); See JOHN KLEINIG, PUNISHMENT AND DESERT 14
(1973); ANDREW VON HIRSCH, PAST OR FUTURE CRIMES: DESERVEDNESS AND
DANGEROUSNESS IN THE SENTENCING OF CRIMINALS 39-46 (1985); JOEL FEINBERG JUSTICE
AND PERSONAL DESERT, IN DOING AND DESERVING: ESSAYS IN THE THEORY OF
RESPONSIBILITY 55, 61 (1970); Julian Lamont, The Concept of Desert in Distributive
Justice, THE PHIL. Q., 44, 45–64 (1994);. Cf. Paul H. Robinson, Competing Conceptions of
Modern Desert: Vengeful, Deontological, and Empirical, 67 CAMBRIDGE L.J. 145, 148
(2008); David Dolinko, Some Thoughts About Retributivism, 101 ETHICS 537 (1991).
135
IMMANUEL KANT, THE METAPHYSICS OF MORALS 105 (Mary Gregor ed. & trans.,
1996).
136
See Jason R. Steffen, Criminalization: A Kantian View 12 WASH. U. JUR. REV. 27,
53 (2019).
137
See Klaus Günther, Criminal Law, Crime and Punishment as Communication, in
ANTJE DU BOIS-PEDAIN ET AL, LIBERAL CRIMINAL THEORY: ESSAYS FOR ANDREAS VON
HIRSCH 133 (2004).

But what happens when the offender who denies protection of rights
is at the same time the person who has been tasked to protect against the
violation of these rights? In other words, the one who causes insecurity for
everyone else in society is at the same time the one who has been granted the
unique monopoly of state power to ensure security for everyone. This is the
unique conundrum caused by police misconduct, the criminalization of which
promises to close a normative and pragmatic gap that is unique to this offense.
Police misconduct by virtue of its nature—an abuse of state power against
individuals—is the example par excellence of action that carries the
universalized effect of making individual rights insecure for all, yet the
offenders of police misconduct are uniquely protected against any intrusion
into their own rights by the criminal legal system. This imbalance not only
perpetuates the sense of universal insecurity towards fundamental rights, but
also renders the state a participant in the “public violation of justice” for
failing to punish these transgressions.138 If the legal system continues failing
to establish for the public the sense that police will be held accountable,
people will increasingly lose faith in its credibility and efficacy.139 The
proposed statute is a step towards a direction of bridging this critical gap.
4. Police Militarization and the Criminal Torture Statute
Many were taken by surprise, when, in the wake of protests

responding to the prosecutor’s decision not to indict officer Darren Wilson,140
the officer who shot and killed eighteen-year-old Michael Brown, police
officers in Ferguson, Missouri took to the streets in army uniforms carrying
assault rifles or driving in tanks.141 With these incidents, police militarization
came to the forefront. But police militarization is not a new phenomenon.
The notion of the “warrior cop”142 came into prominence as a byproduct of
the various “wars” that the United States government has proclaimed in the
138
IMMANUEL KANT, THE METAPHYSICS OF MORALS 199 (Mary Gregor ed. & trans.,
1996).
139
Josh Bowers & Paul H. Robinson, Perceptions of Fairness and Justice: The Shared
Aims and Occasional Conflicts of Legitimacy and Moral Credibility, 47 WAKE FOREST L.
REV. 211, 212 (2012) (arguing that a criminal justice system that is perceived as unfair or
unjust will lose its moral credibility and social influence).
140
Department of Justice report regarding the criminal investigation into the shooting
death of Michael Brown by Ferguson, Missouri police officer Darren Wilson, March 4, 2015.
141
See Kara Dansky, Local Democratic Oversight of Police Militarization, 10 HARV. L. &
POL'Y REV. 59, 59 (2016).
142
See generally RADLEY BALKO, RISE OF THE WARRIOR COP (2013); Diane Cecilia
Weber, Warrior Cops: The Ominous Growth of Paramilitarism in American Police
Departments (Cato Institute Briefing Paper No. 50, Aug. 26, 1999), available at
http://www.cato.org/pubs/briefs/bp-050es.html

past few decades: the war on crime, the war on drugs, the war on terror. 143 In
waging these purported wars, the federal government enacted a series of
programs authorizing the U.S. Department of Defense to transfer military
equipment to local law enforcement agencies,144 along with federal funds for
local governments to purchase paramilitary weapons on the private market. 145
Another aspect of police militarization is the use of Special Weapons and
Tactics (“SWAT”) teams, made up of local law enforcement authorized to
deploy military-style warfare tactics in high-risk situations.146
However, police militarization is not just about equipment and tactics.
An important aspect of this phenomenon concerns the militarization of the
culture of local law enforcement agencies that emphasizes control and fear in
policing over community safety and fair application of the law.147 This aspect
is particularly salient in the context of criminalizing torture committed by
police officers. Pete Kraska defines militarization of the police as “the
process whereby civilian police increasingly draw from, and pattern
themselves around, the tenets of militarism and the military model,”148 which
entails as its foundational assumption the use of force and threat of violence
as the “most appropriate and efficacious means to solve problems.”149 Since
Ferguson, the public became more aware of how local police officers are
trained to think like soldiers in a combat-like culture, and about how local
143
See Karl Bickel, Will the Growing Militarization of Our Police Doom Community
Policing?, COMMUNITY POLICING DISPATCH, U.S. DEP'T JUST. (Dec. 2013),
http://cops.usdoj.gov/html/dispatch/12-
2013/will_the_growing_militarization_of_our_police_doom_community_policing.asp
(stating that a combination of academies modeled after military boot camp, military style
uniforms, an “us versus them” mentality, and the war on crime, war on drugs, and war on
terrorism threaten community policing); See generally MICHAEL TONRY, THINKING ABOUT
CRIME: SENSE AND SENSIBILITY IN AMERICAN PENAL CULTURE (2004); NILS CHRISTIE,
CRIME CONTROL AS INDUSTRY: TOWARDS GULAGS, WESTERN STYLE (2000).
144
Shawn Musgrave et al., The Pentagon Finally Details its Weapons-for-Cops
Giveaway, THE MARSHALL PROJECT (Dec. 3, 2014, 7:35 PM),
https://www.themarshallproject.org/2014/12/03/the-pentagon-finally-details-its-weapons-
for- cops-giveaway
145
See generally Karena Rahall, The Green to Blue Pipeline: Defense Contractors and
the Police Industrial Complex, 36 CARDOZO L. REV. 1785 (2015); Jeffrey A. Endebak, More
Bang for Their Buck: How Federal Dollars are Militarizing American Law Enforcement, 47
J. MARSHALL L. REV. 1479 (2014).
146
See Karan R. Singh, Treading the Thin Blue Line: Military Special-Operations
Trained Police SWAT Teams and the Constitution, 9 WM. & MARY BILL RTS. J. 673, 675
(2001).
147
See Kara Dansky, Local Democratic Oversight of Police Militarization, 10 HARV. L.
& POL'Y REV. 59, 61 (2016).
148
Peter B. Kraska, Militarization and Policing—Its Relevance to 21st Century Police,
1 POLICING, 501, 504 (2007).
149
Id.

law enforcement forces increasingly draw their ranks from a pool of former
military personnel.150 Scholars have emphasized the high risk that this culture
of increased militarization will engender more human rights and
constitutional violations, including acts of torture during searches and
seizures as well as interrogation and detention.151
The militarization of civilian law enforcement and the culture it
produces—which views neighborhoods as battlegrounds and communities as
enemies—are fundamentally incompatible with constitutional rights. 152 They
also contradict efforts to reform the police by improving community relations
and training officers to de-escalate conflicts. 153 The ongoing war on terror
further blurs the distinctions between local law enforcement and war, and
between the police and the military through redefining national security
threats as domestic security. 154 Some states have begun taking action by
enacting legislation that imposes reporting requirements on law enforcement
agencies regarding deployment of so-called “tactical groups”, which include
specialized units like SWAT.155 If adopted by state legislatures, the proposed
criminal torture statute will provide a necessary counterweight towards police
deterrence and accountability against this increased militarization and the risk
that combat style tactics and violence will become more pervasive in the
context of searches, seizures, and interrogations.
150
See AM. C.L. UNION, WAR COMES HOME: THE EXCESSIVE MILITARIZATION OF
AMERICAN POLICING (2014), https://www.aclu.org/sites/default/files/assets/jus14-
warcomeshome-reportwebrel1.pdf
151
See Charles Dunlap, The Police-ization of the Military, 27 J. OF POL. & MIL. SOCI.
217-32 (1999); Gustavo A. Flores-Macías and Jessica Zarkin, The Militarization of Law
Enforcement: Evidence from Latin America, 19 PERSP. ON POLITICS, 519, 520 (2021).
152
See Diane Cecilia Weber, Warrior Cops: The Ominous Growth of Paramilitarism in
American Police Departments (Cato Institute Briefing Paper No. 50, Aug. 26, 1999),
available at http://www.cato.org/pubs/briefs/bp-050es.html; Charles Dunlap, The Police-
ization of the Military, 27 J. OF POL. & MIL. SOCI. 217-32 (1999).
153
See Jonathan Mummolo, Militarization Fails to Enhance Police Safety or Reduce
Crime but May Harm Police Reputation, 115 PROC. NATL. ACAD. SCI. USA 115 9181–6.
(2018); Karl Bickel, Will the Growing Militarization of our Police Doom Community
Policing? 6 COMMUNITY POLICING DISPATCH (2013) https://cops.usdoj.gov/html/
dispatch/12-
2013/will_the_growing_militarization_of_our_police_doom_community_policing.asp
154
See generally, Peter B. Kraska, Militarization and Policing—Its Relevance to 21st
Century Police, 1 POLICING, 501, 523 (2007); MICHAEL SHERRY, IN THE SHADOW OF WAR:
THE UNITED STATES SINCE THE 1930’S (1995).
155
See e.g., UTAH CODE ANN. § 77-7-8.5 (2014) (requiring law enforcement agencies
to report incidents involving SWAT deployment); MARYLAND SB 447 (2009) (The
collection and submission of SWAT data began on July 1, 2009, and ended on June 30, 2014,
due to the bill’s termination date of June 30, 2014).

II. A MODEL CRIMINAL STATUTE FOR TORTURE COMMITTED BY PUBLIC

OFFICIALS
In this part, I propose a model criminal statute that is meant to

complement and bolster existing frameworks of civil and criminal liability
by creating a new offense specific to police officers and other public officials.
Legislatures can, and I argue should, add this offense to their existing
criminal codes to fully criminalize egregious conduct committed by the
police and other public officials towards individuals under their custody or
control. The crime of torture carries a certain shock value and signals great
disapproval as an offense malum in se that is particularized to police officers
and other public officials. This statutory provision fills a peculiar gap in our
otherwise overinclusive criminal legal system. By redefining those instances
of police misconduct that rise to the level of police brutality as torture,
legislatures can capture the intensity of the criminal mistreatment a victim
suffers and the particular harm of violence wielded by state agents, while also
establishing a clear path towards holding police officers accountable for
egregious acts that would otherwise be left unaddressed, perpetuating a
culture of police impunity.
A. Model Statute: Torture by Public Official
1. General. -- Any official who knowingly commits an act or omission

upon an individual in their custody or physical control, causing the
individual cruel or extreme pain or suffering, whether mental or
physical, is guilty of torture, a felony punishable for {term of years}.
If death results to any person from the torture, the felony is punishable
for {term of years}.
2. Definitions. --
a. For the purposes of this section, an official is (i) a peace
officer, (ii) a law enforcement officer within the state, or (iii)
a corrections officer or any employee under the supervision of
a jail or prison.
b. Cruel is defined as inhuman, sadistic, or that which torments.
c. Extreme is defined as (i) bodily injury that results in serious
impairment of a body function; or (ii) mental injury that
results in a substantial alteration of mental functioning.
d. Custody or physical control is defined as the forcible or
constructive restriction of an individual’s liberty.

3. A person acts knowingly if she is aware with practical certainty that

her conduct will cause cruel or extreme pain or suffering, whether
mental or physical.156
4. The statute does not require any proof that the victim suffered pain to
establish the requisite mental state.
5. This statute is not applicable to pain or suffering arising only from,
inherent in, or incidental to lawful sanctions.
6. A conviction or sentence under this statute does not preclude a
conviction or sentence for a violation of any other law of this state
arising from the same transaction.
B. Interpretative Definitions
“Peace Officer:” Any civil officer whose duty it is to preserve the

public space. The term peace officer pertains not only to police officers, but
also to other agents of their departments. This term is intended to apply to
any individual who has been granted authority by the federal, state, or local
government to patrol and/or preserve the public space within its jurisdiction.
“Law Enforcement Officer Within the State:” A federal, state, or local
officer employed or charged to oversee a territory within the state. This term
is intended to include federal and state officials.
“Corrections Officer or Any Employee Under the Supervision of the
Jail or Prison:” Any individual responsible for providing care, custody,
control, supervision, transport, and/or non-professional counseling to
incarcerated or detained individuals under the supervision of the prison or
jail.157 This purposefully broad definition is intended to capture any official
who may exploit or abuse their position or authority. By including corrections
officers and other employees under the supervision of the prison or jail, this
statute criminalizes conduct not only against free members within the
community, but also against those detained or incarcerated within jails and
prisons.
“Cruel:” An act that is devoid of humane feelings, or one conducive
to injury, grief, or pain. This includes any inhuman, sadistic, or other act that
torments,158 where: “inhuman” should be accorded its plain and ordinary
156
Model Penal Code in § 2.02(2) (b)).
157
See e.g., Pennsylvania Department of Corrections Handbook (non-professional
counseling is defined as any service or assistance provided to an inmate that is not provided
by a licensed medical provider).
158
See Mich. Comp. Laws. Ann. § 750.85 Torture (West); see also People v. Aguilar,
68 Cal. Rptr. 2d 619 (Ct. App. 1997) (holding that “cruel” when used as a modifier of “pain”
is commonly understood to mean extreme or severe pain).

meaning;159 and “sadistic” is defined as the taking pleasure in the infliction

of pain, punishment, or humiliation upon the victim. 160 This includes
“conduct that subjects a victim to extreme or prolonged pain or humiliation
and is inflicted to produce suffering or for the offender’s gratification.” 161
This definition aligns with the two existing criminal torture statutes
in Michigan and California that are not particularized to public officials.162
The Michigan statute uses “sadistic” as a descriptor for “cruel,” as does this
proposed statute. However, it does not directly define “sadistic” within its
own definitions. Michigan law defines “sadism” in its scoring offense
variables and the proposed definition above incorporates that definition.163
The definition above also tracks the common meaning and interpretation of
sadistic identified in the element of “sadistic purpose” in the California
statute as the infliction of pain on another for the purpose of experiencing
pleasure.164 However, unlike the California statute, this proposed statute does
not incorporate “sadistic purpose” as an independent element of the offense.
The proposed model statute intentionally does not incorporate a purpose
requirement, which has been viewed by scholars in the context of the
definition of torture in international law as a “dangerous limitation, resulting
in intentional government sponsored severe suffering failing to constitute
torture.”165
159
See People v. Chivis, 2010 WL 5383914 at *2 (Mich. App. 2010) (“Although the
statute defines the term “cruel,” it does not expressly define the individual terms contained
within the definition. However, “[u]nless defined in the statute, every word or phrase of a
statute should be accorded its plain and ordinary meaning, taking into account the context in
which the words are used. . . .” (citing People v. Lange, 251 Mic. App. 247, 253 (2002))
(“‘Inhuman’ is defined as ‘lacking sympathy, pity, warmth, compassion, or the like; cruel;
brutal; unfeeling.’” (citing Random House Webster’s College Dictionary (2001)).
160
See id. (“‘Sadism’ is defined as ‘pleasure in being cruel’ or ‘extreme cruelty.’”).
161
See Mich. Comp. Laws. Ann. § 77.35 Scoring Offense Variable 7, Aggravated
Physical Abuse (West) (“(3) As used in this section, “sadism” means conduct that subjects a
victim to extreme or prolonged pain or humiliation and is inflicted to produce suffering or
for the offender’s gratification.”).
162
See infra Section II.C of this article.
163
See id.
164
See People v. Aguilar, 58 Cal. App. 4th 1996 (App. 1 Dist. 1997) (holding that this
definition of sadistic purpose is “sufficiently definite to prevent torture statute from being
unconstitutionally vague.”); People v. Pre, 11 Cal. Rptr. 3d 739, 746 (Ct. App. 2004)
(holding defendant had sadistic purpose when he bit the victim's ear).
165
Rebecca B. Schechter, Intentional Starvation as Torture, 18 AM. U. INT’L L. REV.
1233, 1257 (2003); See generally Oona A. Hathaway et al., Tortured Reasoning: The Intent
to Torture Under International and Domestic Law, 52 VA. J. INT’L L. 791, 795 (2009)
(summarizing the discussion surrounding the limitations raised in the infamous “Torture
Memos” on the legality of enhanced interrogation techniques under international and United
States torture laws.); Cf Convention Against Torture art 1.

“Serious Impairment of a Body Function:” Bodily injury which

creates a substantial risk of death or that causes serious disfigurement or
impairment of the function of any internal or external body part. 166 Each state
defines serious impairment of a body function differently and this statute
acknowledges that flexibility may be required for each state to apply its own
definition of the term in the adoption of the statute. 167
“Substantial Alteration of Mental Functioning:” A mental injury that
results in a severe change in mental functioning. This injury should manifest
in a medically-determined, demonstrable manner caused by or resulting from
any of the following circumstances: the intentional infliction or threatened
infliction of great bodily injury; the administration or application, or
threatened administration or application, of mind-altering substances or other
procedures calculated to disrupt the senses of the person; the threat of
imminent death; the threat that another person will imminently be subjected
to death, great bodily injury, or the administration or application of mind-
altering substances or other procedures calculated to disrupt the senses. 168
“Custody:” The forcible or constructive restriction of a person’s
movements. Custody entails an individual being held within the lawful or
166
See Mich. Comp. Laws. Ann. § 750.85 Torture (West); Pennsylvania Title 18,
Section 2301; People v. Odom (App. 1 Dist. 2016) 197 Cal.Rptr.3d 774 (“The offense of
torture does not require permanent, disabling, or disfiguring injuries)”; People v. Pre (App.
4 Dist. 2004) 11 Cal.Rptr.3d 739, 117 Cal.App.4th 413 (Torture does not require permanent,
disabling, or disfiguring injuries, but only great bodily injury, including abrasions,
lacerations and bruising).
167
See id. See also PA, NY, MN, TX, CO statutes. Pennsylvania uses a totality of the
circumstances approach in evaluating serious impairment of a body function that coincides
with its statutory definition of great bodily injury. In addition, some states, like California,
use great bodily injury as a sentence enhancer, using a case-by-case analysis to determine
whether great bodily injury occurred. This case-by-case approach considers factors such as
the pain caused to the victim, the severity of the injuries, and whether any medical care was
required. Michigan codifies great bodily injury as the serious impairment of a body function
including one or more of the following conditions: “internal injury, poisoning, severe burns
or scalding, severe cuts, or multiple puncture wounds.” See Mich. Comp. Laws. Ann. §
750.85 Torture (West). These conditions are expressly listed as satisfactory for a finding of
great bodily injury for purposes of the torture state.
168
See Mich. Comp. Laws. Ann. § 750.85 Torture (West); People v. Murphy, No.
293385,2010WL4679582, at *3 (Mich. Ct. App. Nov. 18, 2010). In addition to providing
conditions that would satisfy a finding of a substantial alteration of mental functioning, the
inquiry, in practice, considers the totality of the circumstances to determine whether the
victim suffered the requisite mental injury. See People v. Schaw, 791 N.W. 2d 743, 746
(Mich. App. 2010) (“While there was evidence that the jury could have credited to conclude
that all of Cheryl’s mental issues resulted solely from her preexisting conditions, there was
also evidence that the jury could have credited, evidently did credit, to conclude that
defendant’s attack caused some of her mental injuries. . .That Cheryl experienced
hallucinations and had to resume her medication after the attack was evidence of a substantial
altering of mental functioning and evidence of a visibly demonstrable mental injury.”).

unlawful restraint of another. 169 An official does not have to be in direct

contact, or even within the same room, to have custody over an individual. 170
“Physical Control:” To have in one’s possession or direct influence;
the exercise of restraining or directing an individual with whom the actor is
in direct contact.171 Physical control refers to the immediate restriction of the
victim’s ability to move freely. It requires an official to have direct contact
and relation with the individual over whom they are exercising restraint.
From the existing criminal torture statutes, the Michigan statute requires a
finding of custody or physical control over the victim.172 This inquiry asks
whether the offender had custody or physical control over the victim and
whether that custody or physical control was without the victim’s consent. 173
The proposed statute does not require a finding that the custody or physical
control was obtained without the victim’s consent. Because this statute is
meant to apply specifically to public officials, particularly police officers, the
proposed statute also covers circumstances where initial physical control was
obtained with the victim’s consent.
“Lawful Sanctions:” Judicially imposed sanctions and other
enforcement actions authorized by law, provided that such sanctions or
actions do not defeat the spirit and letter of the provisions of this statute. This
statute covers circumstances where public officials act outside the scope of
what is permissible by existing statute, protocol, or the departmental
handbook. This statute does not create potential liability for public officials
169
This includes situations ranging from being arrested and placed in custody to police
officers showing up to one’s house, creating a constructive restriction on one’s liberty. In
other words, custody means that an individual legally placed in a holding cell receives the
same protections as an individual unofficially being questioned by police in a public area.
170
See Black’s Law Dictionary (11th ed. 2019) (Custody is “[t]he care and control of a
thing or person for inspection, preservation, or security.”) (Constructive custody is
“[c]ustody of a person (such as a parolee or probationer) whose freedom is controlled by
legal authority but who is not under direct physical control.”). See also People v. Dabish,
2013 WL 2081028 at *5 (Mich. App. 2013) (“evidence was sufficient to allow the jury to
infer that Diana was forcibly restricted or confined inside defendant’s apartment without her
consent, and without liberty to seek outside help.”).
171
See Black’s Law Dictionary (11th ed. 2019) (Physical custody is “[c]ustody of a
person (such as an arrestee) whose freedom is directly controlled and limited.”).
172
See Mich. Comp. Laws. Ann. § 750.85 Torture (West). (“‘Custody or physical
control’ means the forcible restriction of a person’s movements or forcible confinement of
the person so as to interfere with that person’s liberty, without that person’s consent or lawful
authority.”). See also People v. Dabish, 2013 WL 4081028 at *3 (Mich. App. 2013) (“Thus,
to prove torture, the prosecutor was required to prove beyond a reasonable doubt that (1)
defendant intended to cause cruel or extreme physical or mental pain and suffering, (2)
defendant inflicted great bodily injury or severe mental pain or suffering, and (3) the victim
was within the defendant’s custody or physical control.”) (emphasis added) (citing People v.
Shaw, 791 N.W. 2d. 743 (Mich. App. 2010)).
173
See generally People v. Dabish, 2013 WL 2081028 at *5 (Mich. App. 2013).

whose actions are lawful and fall within acceptable protocol in the scope of
their duties.
Finally, regarding the mens rea for this offense, the proposed model
statute only criminalizes serious violations committed with a highly culpable
mental state, that is knowledge at the level of practical certainty that one’s
actions will cause cruel or extreme physical or mental pain or suffering. This
knowledge may be inferred from the nature of the defendant’s acts, their
duration, frequency, or severity.174 No proof that the victim suffered this pain
or suffering is required to establish the defendant’s mental state. The
defendant acting with knowledge that defendant’s actions will cause this pain
or suffering is a sufficiently culpable mental state to satisfy the mens rea
element of this offense though proof of infliction of this pain or suffering may
carry additional probative value.175 The requisite mens rea of this statute
aligns with that required under the International Convention against
Torture.176
C. Connecting the Proposed Statute with the Existing Legal Framework on

the Criminalization of Torture
California and Michigan are the only two states in the United States
to have adopted a criminal torture statute with general application.177 These
174
See e.g., People v. Brockitt, No.311042,2013WL5379646 st*3 (Mich. Ct. App. Sept.
26, 2013) (holding that victim suffered torture when his hands were bound behind his back
for twelve to fourteen hours, cutting off circulation); People v. Richmond, No. 289335, 2010
WL 334694, at *1-2 (Mich. Ct. App. Jan. 28, 2010) (inferring defendant’s intent from
defendant’s patterned and frequent conduct of inflicting severe head injury on the child
victim, rubbing victim’s genitals, kissing him, smacking his buttocks, threatening to rape
him, and throwing ice water on his stomach); People v. Assad, 116 Cal. Rptr. 3d 699, 706
(Ct. App. 2010) (holding that the state met its burden of proving defendant acted with the
intent to inflict cruel pain when he repeatedly struck his son in regions of his body in which
he had already suffered injuries); People v. Misa, 44 Cal. Rptr. 3d 805, 809 (Ct. App. 2006)
(upholding finding of intent based on evidence that the defendant struck his victim in the
head repeatedly over a significant period of time); People v. Burton, 49 Cal. Rptr. 3d 334,
337 (Ct. App. 2006) (ruling that “a jury may consider the severity of the wounds in
determining whether the defendant intended to torture”); People v. Odom (App. 1 Dist. 2016)
197 Cal.Rptr.3d 774, 244 Cal. App. 4th 237.
175
See People v. Quintero, 37 Cal. Rptr. 3d884,893-94 (Ct. App. 2006) (holding that
evidence that defendant repeatedly attacked victim’s face with a knife and made taunting
remarks indicated that defendant acted with the purpose to cause cruel suffering).
176
See Oona A. Hathaway et al., Tortured Reasoning: The Intent to Torture Under
International and Domestic Law, 52 VA. J. INT’L L. 791, 797-98 (2009) (arguing that “the
negotiating history of the Convention, the plain meaning of the text, domestic jurisprudence
on torture, the Committee Against Torture's interpretations, and international court and
tribunal case law all make clear … that the specific intent standard for torture is met by
evidence that the accused knowingly inflicted severe pain or suffering on a person”).
177
See California Penal Code § 206; Michigan Compiled Laws Annotated § 750.85.

statutes neither limit their application to acts committed by police officers

and other public officials nor bar such application.178 These criminal statutes
have never been used by prosecutors in successfully charging police officers
with torture. These statutes have, however, been used in cases against
civilians in ways that are instructive to understanding how courts have
interpreted the offense’s elements and its application. I have selected the
cases in this section to elucidate elements of the crime of torture that are
particularly relevant to its commission by police officers. These elements
include intent, the nature of required conduct, and certain attendant
circumstances, such as the presence of a victim within a person’s custody or
control. Clarifying these aspects of the offense will be integral in proposing
an application for the model statute for torture committed by public official.
This analysis may also provide a roadmap for prosecutors in California and
Michigan to charge public officials who commit acts of torture under existing
statutes.
In California, courts have mostly focused on clarifying elements of
mens rea and the evidence that can establish the requisite intent especially
when the defendant contests the intent to commit torture. In People v.
Baker,179 the defendant was convicted of the crime of torture after dousing
his wife in gasoline and lighting her on fire. In reviewing whether the
defendant had the requisite intent to cause his wife cruel or extreme pain, the
court noted, “[a] defendant’s state of mind must, in the absence of the
defendant’s own statements, be established by circumstances surrounding the
commission of the offense.”180 The court utilized the defendant’s prior
statements to his wife and his anger towards her because she wanted to
divorce him to establish that the record contained “sound, credible evidence
that amply supports the conclusion Baker intended to cause [the victim] cruel
or extreme pain with the requisite intent and purpose.”181 In addition, the
court noted that the victim’s scarring constituted strong circumstantial
evidence of defendant’s intent to cause cruel or extreme pain.182 In People v.
Pre,183 the defendant was convicted of torture for, after having forcefully
entered the victim's apartment, repeatedly strangling her into
unconsciousness, beating her, biting her ear, and dragging her through her
apartment.184 The appellate court affirmed the torture conviction, finding that
the defendant’s repeated pressure on the victim’s neck, forcing her into
178
See id.
179
98 Cal. App. 4th. 1217 (2002).
180
See id. at 1223 (quoting People v. Mincey, 827 P.2d 388 (1992)).
181
Id. at 1224.
182
Id.
183
117 Cal. App. 4th 413 (2004).
184
Id. at 416-418.

unconsciousness multiple times, cradling her head and shoulders in his lap,
and biting her ear, resulting in one hundred stitches, would lead a reasonable
jury to determine that the defendant had intended to inflict extreme pain on
his victim for his own sadistic pleasure. 185
In Michigan, decisions on the crime of torture help illustrate how it is
distinct from other offenses, such as assault and battery. As discussed above,
the under-inclusiveness of assault and battery statutes in accounting for
conduct that would otherwise amount to torture is an integral reason behind
this article’s proposal for a torture statute relating to public officials
conduct.186 In People v. James Alvin Richmond, 187 the appellate court held
that there was sufficient factual basis for a criminal torture charge because
the victim suffered great bodily injury and brain damage while in the
defendant’s custody and control. 188 The defendant precluded others from
getting help by threatening them with death for over two hours; the victim
was rendered helpless due to head trauma and subject to the control of the
defendant.189 In siding with the prosecution, the appellate court established
that “torture does not require an assault” but requires instead “great bodily
injury or severe mental pain and suffering.”190
Though California and Michigan are the only two states to have
enacted criminal torture statutes, torture is weaved into state criminal statutes
as a factor for aggravated offenses or increased sentencing. 191 In People v.
Davenport,192 a case that took place in California prior to the adoption of the
state criminal torture statute and prompted legislators to adopt this statute, the
victim had accepted a ride home from the bar from the defendant, a mutual
friend.193 The following day, the victim was found impaled and the defendant
185
Id. at 422; See People v. Pre, 117 Cal. App. 4th 413 (2004). See also People v. Baker,
98 Cal. App. 4th. 1217, 1223 (2002); People v. Barrera, 14 Cal. App. 4th. 1555, 1573 (1993)
(“The torture offense contained in section 206 was adopted by the voters to ‘fill[] a gap in
existing law dealing with extremely violent and callous criminal conduct.’”); People v. Hale,
75 Cal. App. 4th 94, 107-08; People v. Aguilar, 58 Cal. App. 4th 1196, 1204 (1997).
186
See supra Section I.A.3 of this article.
187
2010 WL 334694 (Mich. Ct. App. Jan. 28, 2010).
188
Id.
189
Id.
190
Id; see MCL 750.85.
191
See Adult Statutory Considerations Used to Prosecute Child Torture Offenders,
National District Attorneys Association (NDAA), https://ndaa.org/wp-
content/uploads/ncpca_statute_adult_considerations_child_torture_march_09.pdf; Several
states consider torture as an aggravating factor under their criminal statutes, see e.g. Ark.
Code Ann. § 5-4-604 (2008), La. Rev. Stat. Ann. § 905.4 (2008), Mass. Ann. Laws Ch. 279
§ 69 (2009).
192
41 Cal. 3d 247 (1985).
193
Id. at 271.

was charged with her death. 194 At trial, the prosecution submitted evidence
detailing the victim’s injuries and the gruesome nature of her death. 195 The
defendant contended that the literal language of then existing law had “failed
to require that the defendant have either the specific intent to kill the victim
or the specific intent to torture. Thus, the defendant's state of mind need be
no more culpable than that of any other murderer.”196 The California Supreme
Court ruled that “the evident purpose of the [aggravating] statute is to
encompass killings in which the perpetrator intentionally performed acts
which were calculated to cause extreme physical pain to the victim, and
which were inflicted prior to death,” which at the time served as an
aggravating factor in this case. 197
Some states include torture within the specific degrees that establish
an offense.198 Much like aggravating factors, considerations for degrees of
offenses are generally used by the prosecution to decide what charges to bring
against the defendant. When states establish torture as a consideration for a
particular degree of an offense, they provide more guidance regarding the
varying levels of offenses. In practice, degrees of offenses and aggravating
factors work similarly, with the main difference being that the state with
explicit degrees of offenses has established with specificity the exact
requirements for increased culpability.
In many states, torture can increase the severity of the sentence
imposed after conviction.199 Whereas aggravating factors increase the
severity of the offense charged, courts in states that use torture as a sentencing
consideration consider torture during the sentencing determination. After the
jury determines that the prosecution has sufficiently proven that the defendant
engaged in criminal conduct that included the infliction of torture, the judge
may then use that determination to impose an aggravated sentence due to the
severity of the conduct.200 Other states use torture as a more extreme form of
sentencing consideration, using the presence of torture within a crime to deem
194
See id.
195
See id at 258. (The victim had been found nude except for a draped sweater over the
upper torso, had suffered numerous and extensive stab wounds around the neck, chin, and
jaw, and her carotid artery had been severed. Her breasts were bruised, and a long wooden
stake had been inserted into her rectum, causing severe damage to her internal organs and
tissues) Id.
196
See id. at 261 (citations omitted).
197
See id.
198
See e.g. Alaska Stat. § 11.41.110 (2009), Iowa Code § 710.2 (2008), Mo. Rev. Stat.
§ 565.032 (2009), Nev. Rev. Stat. Ann. §§ 200.030-033 (2009), N.Y. Penal Law §§ 125.25-
27 (2009).
199
See e.g. Alaska Stat. § 12.55.125 (2009), N.C. Gen. Stat. § 14-17 (2009), Or. Rev.
Stat. § 163.115 (2007), 42 Pa. Cons. Stat. Ann. § 9711 (2008).
200
Id.

the defendant eligible for the highest levels of sentencing available in these
states’ guidelines.201
Finally, Illinois represents the single example of a state that has
established a “claim of torture” statute. 202 This applies specifically to
interrogations and confessions, where a defendant has the ability to raise a
claim of torture against the public official who took the defendant’s statement
or confession in order to support a motion to suppress evidence taken as a
result of illegal conditions.203 This statute, coupled with the public call for
policing reform in the state, led to the passage of Illinois House Bill 3653,
which includes significant changes to policing practices, such as a new
process for decertifying police officers, a ban on all police chokeholds, and
the requirement that all police officers wear body cameras by 2025. 204
Recognizing the strong connection between the crime of torture by public
official and police militarization, the Illinois Bill also bans police
departments form purchasing military equipment like caliber rifles, grenades,
and tanks.205 While this legislation marks a positive shift in the state of
Illinois, this effort does not directly address criminal liability for torture
committed by police officers. Despite lobbying and shifting public opinion
on this issue of police brutality, legislative efforts have generally fallen short
of establishing criminal liability for police officers for the crime of torture.
Perhaps most strikingly, the two existing criminal torture statutes
have not yet been used successfully to charge police officers in cases of police
brutality that fall within their scope. This inaction illustrates how the law is
applied differently as between civilians and police officers. Whereas
prosecutors have charged civilians for heinous acts of torture, such as in
Davenport,206 they have also used these statutes to charge poverty-stricken
mothers with torture against their children, while never having utilized these
same statutes to charge police officers when their behavior satisfies the
elements of the offense. 207 While prosecutors have demonstrated their
awareness of these statutes, they have not so far used them to establish
criminal accountability in cases of severe police brutality against individuals
in their custody that rise to the level of torture.
201
See e.g. Ala. Stat. Ann. 13-A-5-40(a)(1)-(19), A.R.S. § 13-751, Ar. Code Ann. 5-10-
101, Cal. Penal Code § 190.2.
202
See 775 ILCS 40, Illinois Torture Inquiry and Relief Commission Act (accessed at
https://www.ilga.gov/LEGISLATION/ILCS/ilcs3.asp?ActID=3120&ChapterID=64#:~:text
=(1)%20%22Claim%20of%20torture,some%20credible%20evidence%20related%20to).
203
Id.
204
Illinois House Bill 3653.
205
Id.
206
41 Cal. 3d 247 (1985).
207
See e.g. No. 348859, 2020 WL 4914668 (Mich. Ct. App. Aug. 20, 2020).

Paradigmatically, almost a year after the California legislature passed

its criminal torture statute, Rodney King, while unarmed, was savagely
beaten by four police officers who were never prosecuted for torturing him. 208
Following a high-speed chase throughout Los Angeles, these officers battered
King over fifty times. 209 After King was out of his car, and clearly in police
control,210 the officers began to beat him with batons, kicked him, and
stomped on his upper back and neck for fifteen minutes, as recorded on video
by a civilian.211 The video showed more than a dozen other police officers
standing by, watching, and commenting on the beating, rather than
intervening to stop the violence against Mr. King.212 The four police officers
were charged with assault and excessive force in state court; three were
acquitted on all counts, and one assault charge against the fourth officer
resulted in a hung jury. 213 Protestors took to the streets in response to this
instance of failure to hold the police accountable—even in the face of early
video footage.214
In California and Michigan where criminal torture statutes exist,
cases of police brutality that meet the statutory elements could and should be
prosecuted under these statutes. These legislatures may consider adopting this
proposed statute specifically addressing torture committed by public
officials. The lack of precedent for charges against public officials for severe
violence may explain in part the absence of torture charges for police brutality
208
See United States v. Koon, 833 F. Supp. 769, 774-76 (C.D. Cal. 1993) (sentencing
defendants Koon and Powell), rev'd, 34 F.3d 1416 (9th Cir. 1994), aff'd in part, rev'd in part,
518 U.S. 81 (1996); See Anjuli Sastry, When LA Erupted In Anger: A Look Back At The
Rodney King Riots, NPR (Apr. 26, 2017),
https://www.npr.org/2017/04/26/524744989/when-la-erupted-in-anger-a-look-back-at-the-
rodney-king-riots; See Laurie L. Levenson, The Future of State and Federal Civil Rights
Prosecutions: The Lessons of the Rodney King Trial, 41 UCLA L. REV. 509, 517-20 (1994).
209
See Koon, 833 F. Supp. at 776.
210
See Koon, 518 U.S. at 86; Laurie L. Levenson, The Future of State and Federal Civil
Rights Prosecutions: The Lessons of the Rodney King Trial, 41 UCLA L. REV. 509, 518
(1994) (describing initial activities after the stop).
211
See Anjuli Sastry, When LA Erupted in Anger: A Look Back At The Rodney King
Riots, NPR (Apr. 26, 2017), https://www.npr.org/2017/04/26/524744989/when-la-erupted-
in-anger-a-look-back-at-the-rodney-king-riots
212
See id.
213
History.com Editors, Rodney King Trial Verdict Announced, History, A&E
Television Networks (Jul. 17, 2020), https://www.history.com/this-day-in-history/rodney-
king-trial-verdict-announced. Note that the four officers were convicted in federal court of
charges under 18 U.S.C. §242 of violating the victim’s rights under color of law and
sentences to 30 months in prison, see Lou Canon, L.A. Officers Sentenced to 30 Months,
WASHINGTON POST (Aug. 5, 1993)
https://www.washingtonpost.com/archive/politics/1993/08/05/la-officers-sentenced-to-30-
months/d9ebf6fb-6405-4e9d-bcc7-41045225fd32/.
214
See id.

in California and Michigan. The other part of the explanation is likely that
these offenses are not particularized to police officers and thus prosecutors
may exercise their discretion and charge officers with other offenses such as
assault or battery, against which officers may raise easier-to-establish self-
defense claims.215 With the adoption of the proposed torture statute,
prosecutors will have an alternative means to establish criminal liability, and
a clear directive from the legislature to hold the police to account for acts of
extreme misconduct.
III. THE IMPACT OF THE PROPOSED CRIMINAL TORTURE STATUTE
In this part, I address the potential positive impact the proposed

criminal torture statute can have for victims of police brutality on an
individual and societal level. I provide a typology of recent cases of police
brutality that, based on their evidentiary record, would fall within the scope
of the proposed model statute but have gone unaddressed by our criminal
legal system. Finally, I identify and respond to the main anticipated objection
to my proposal: the threat of de-policing.
A. A Typology of Police Brutality Cases that Fall within the Scope of the
Proposed Statute
Police brutality spans across all encounters one might have with the
criminal legal system: from being stopped by the police to being subjected to
inhumane conditions in detention centers or prisons. It is likely that there are
many cases of police brutality that have amounted to egregious conduct
constituting torture under the proposed criminal torture statute that either
remain unaddressed or have been addressed only partially without
recognition of the egregiousness of the alleged acts as torture. These instances
and the accountability gaps they perpetuate could be more successfully
addressed under the proposed criminal torture statute. This section explores
a small segment of such recent cases to illustrate the impact the adoption of
this proposed statute would have for individuals who have been victimized
by police brutality. The evidence in these cases leaves no doubt that a
prosecutor could have established probable cause to bring charges under the
proposed criminal statute, but the cases have otherwise gone unaddressed. In
the absence of the proposed statute, the public officials involved have largely
evaded accountability for their egregious conduct.
215
For the disparity between self-defense claims raised by civilians and police officers,
see Section I.A.2. of this article.

1. Police Brutality Amounting to Criminal Torture During Searches and

Seizures
Recorded with many cell phone and police body cameras, George
Floyd was forced face down on the concrete while Derek Chauvin kneeled
on his neck for over nine minutes until Chauvin killed him by asphyxiation. 216
While the seizure of George Floyd may have begun as a lawful sanction based
on probable cause, seizures end when the individual is placed into the police’s
physical control or custody, rendering physical acts of control or violence
after that point unlawful. George Floyd was handcuffed face-down and fully
restrained, rendering him in the officer’s custody and within his physical
control.217 At this point, the police had no justification for further restraints.
However, Chauvin continued to take actions that placed Floyd in danger by
using his body weight to pin down Floyd, forcing him to endure pain and
suffering, and ultimately causing his death.
The homicide charges brought against Chauvin that resulted in his
eventual conviction fail to capture an important aspect of Chauvin’s conduct
that the proposed criminal torture statute illuminates, that is the application
of cruel pain and suffering. By criminalizing the intentional infliction of
“cruel or extreme pain” as torture, the statute would address conduct that the
video footage presented in Chauvin’s trial laid bare but for which the officer
was never held to account. The videos showed Derek Chauvin subjecting
George Floyd to extreme and prolonged pain that he inflicted after Floyd was
in his and other arresting officers’ full custody and control, and for no other
reason than to cause Floyd additional suffering or for Chauvin’s
gratification.218 In fact, video footage captures Chauvin telling Floyd
sarcastically and sadistically to “get up and get in the car” while continuing
to kneel on Floyd’s neck, after Floyd agreed to get in the car, and while he
216
See Nicholas Bogel-Burroughs, Prosecutors Say Knelt On George Floyd for 9
minutes 29 seconds, Longer Than Initially Reported, The New York Times (Mar. 30, 2021),
https://www.nytimes.com/2021/03/30/us/derek-chauvin-george-floyd-kneel-9-minutes-29-
seconds.html.
217
See Evan Hill et al, How George Floyd was Killed in Police Custody, NEW YORK
TIMES (May 31, 2020 updated Jan 24, 2022)
video.html?referringSource=articleShare.
218
See Mich. Comp. Laws. Ann. § 77.35 Scoring Offense Variable 7, Aggravated
Physical Abuse (West) (“(3) As used in this section, “sadism” means conduct that subjects a
victim to extreme or prolonged pain or humiliation and is inflicted to produce suffering or
for the offender’s gratification.”).

pled for a final chance to breathe.219 Bystanders witnessing the encounter

repeatedly accused Chauvin and these fellow officers of “enjoying” the
violent encounter even after Floyd was no longer alive. 220 There is no
question that the sadistic acts of these officers as recorded on video would
fall within the scope of this proposed statute and better capture the
egregiousness of their acts.
Karen Garner, a 73-year old woman with dementia, was arrested by
the police after walking out of a grocery store with $14.00 worth of items. 221
She had mistakenly forgotten to pay for the items and subsequently was
placed under arrest.222 A Colorado police officer threw Garner on the front of
a police car, held her down, and dislocated her shoulder while arresting her.223
The police then took her into custody, where she received no medical
attention for the hours she was handcuffed to a bench at the police station. 224
Thanks to the release of the officer body camera and police station
surveillance footage, it became clear that the officer knew he was injuring
Garner; in fact, the surveillance video with enhanced audio showed the
officer bragging about this arrest to his colleagues, telling them to listen for
“the pop” of Garner’s shoulder dislocating.225 The combined mistreatment of
Garner is not only reminiscent of the Danilo Dimitrijevic case226 that the
United Nations Committee against Torture found constituted torture, but also
indicative of the kind of sadistic violence the proposed statute aims to
address.
Similar to the extreme and sadistic harm Chauvin inflicted on George
Floyd, police killed Eric Parsa, a 16-year-old boy with autism, by sitting on
his back for nine minutes continuously. 227 The boy was in a parking lot with
219
Evan Hill et al, How George Floyd was Killed in Police Custody, NEW YORK TIMES
(May 31, 2020 updated Jan 24, 2022)
220
Id.
221
See Colleen Slevin, Colorado Cop Accused of Intentionally Hurting Elderly Woman:
‘Ready For The Pop?’, Huff Post (Apr. 26, 2021),
https://www.huffpost.com/entry/colorado-cop-accused-intentionally-hurting-elderly-
woman_n_60877b70e4b003896e088c4e.
222
Id.
223
Id.
224
Id.
225
Id.
226
U.N. Comm. Against Torture, Danilo Dimitrijevic v. Serbia and Montenegro, 2.1,
7.1 U.N.Doc. CAT/C/35/D/172/2000 (Nov. 16, 2005).
227
See Paul Murphy, Parents of “severely autistic” teen killed in JPSO custody file civil
rights lawsuit, 4WWL, (Jan. 14, 2021, 5:16 PM),
https://www.wwltv.com/article/news/local/jefferson/parents-of-severely-autistic-teen-
killed-in-jpso-custody-file-civil-rights-lawsuit/289-05d6bd6f-773a-4453-91ba-
4ded54871661.

his parents when he got frustrated and became violent with himself and his
father.228 A bystander called the police, and officers came to the scene. 229
Seven officers handcuffed Parsa and then sat on him for nine minutes until
he stopped breathing.230 When they got off of him, he was already dead; the
boy’s parents were forced to watch the entire encounter, unable to stop the
officers.231 The police claimed Parsa was endangering himself and his
parents, insisting that they were helping the family and the prosecutors have
not filed any criminal charges. Parsa’s parents filed a civil suit against the
officers and the department, but that case is still in progress.232 Had a version
of the proposed torture statute been enacted in Louisiana, evidence of this
encounter could be mounted to sustain charges against these officers.
2. Police Brutality Amounting to Criminal Torture During Detention and

Incarceration
One of the most egregious accounts of serial police brutality

amounting to criminal torture under the proposed statute was the Jon Burge
era in Chicago.233 Jon Burge worked his way up to police commander,
becoming notorious for techniques he deployed to elicit confessions from
detainees and arrestees.234 Possibly most notable is the “torture machine,” a
“black box with a generator in it, with wires coming from the generator with
alligator clips on the wires with the crank on that generator.” 235 This device
was used primarily to get confessions, torturing arrestee’s to the point where
they would do anything not to experience more pain. 236 This was not the only
torture inflicted by Jon Burge and his unit, as they also used tactics such as
simulated suffocation and beatings to get confessions.237
After two white Chicago gang unit officers were shot and killed,
Andrew Wilson, and his brother Jackie, were arrested for the crime, with
Andrew accused of being the shooter. 238 Burge and his associates bagged,
beat, and burned Andrew Wilson with a cigarette lighter, before handcuffing
228
Id.
229
Id.
230
Id.
231
Id.
232
Id.
233
See generally AMNESTY INTERNATIONAL, UNITED STATES OF AMERICA:
ALLEGATIONS OF POLICE TORTURE IN CHICAGO, ILLINOIS (1990).
234
See G. Flint Taylor, The Torture Machine: Racism and Police Violence in Chicago,
13 DEPAUL J. FOR SOC. JUST. 1 (2019).
235
See id. at 3.
236
See id.
237
See G. Flint Taylor, The Chicago Police Torture Scandal: A Legal and Political
History, 17 CUNY L. REV. 329, 343 (2014).
238
See id at 332.

him across a radiator and repeatedly shocking him on his face and genitals.239
Each time he was shocked, his body would be thrust against the radiator,
causing painful electric shock and severe burns.240 After the brutal torture,
Andrew Wilson ultimately confessed to the shooting.241 He received the
death penalty while his brother received a life sentence.242
In the cases of Gregory Banks and David Bates, arrested for the
murder of a drug dealer, alleged that an officer put a revolver in their mouth
while another proceeded to put a plastic bag over their head, a tactic known
as “dry submarino” that simulates suffocation. 243 This was exacerbated by
kicking and punching them.244 Darrell Cannon was arrested for murder just
days after Banks and Bates.245 When he refused to speak to the police officers,
they took him to a remote site, where a police officer forced the barrel of a
shotgun into Cannon’s mouth and pulled the trigger. 246 Unbeknownst to
Cannon, the shotgun was unloaded.247 The officers repeated this mock
execution twice more before the deciding to pull down Cannon’s pants and
repeatedly shock his genitals with a cattle prod. 248 After these abuses, Cannon
gave a statement confessing to being accountable for the murder.249
Since the terrifying command of Jon Burge in Chicago, little progress
has been made in combating police brutality or mistreatment by officials.
More recently, Trent Taylor, an incarcerated person alleged that “correctional
officers confined him in a pair of shockingly unsanitary cells.” 250 The first
cell was covered with massive amounts of human feces, from floor to
ceiling.251 Taylor did not eat or drink for nearly four days out of fear that he
would be contaminated by his surroundings.252 Correctional officers then
moved him to a second cell, which was intensely cold, with a clogged drain
in the floor for bodily waste.253 Under these conditions, Taylor was forced to
hold his bladder for over 24 hours until he involuntarily relieved himself,
causing the cell drain to overflow and raw sewage to seep over the floor.254
239
Id.
240
Id.
241
Id.
242
Id.
243
Id.
244
Id.
245
See id. at 346.
246
See id.
247
See id.
248
See id.
249
See id.
250
Taylor v. Riojas, 141 S.Ct. 52 (2020).
251
Id.
252
Id.
253
Id.
254
Id.

Having survived, Taylor brought a claim for cruel and unusual

punishment under the Eighth Amendment. 255 The Fifth Circuit Court of
Appeals granted the officers qualified immunity for their actions, barring
relief to Taylor.256 On review, the Supreme Court held that, because any
reasonable correctional officer should have realized that their mistreatment
of Taylor was clearly cruel and unusual punishment covered by the Eighth
Amendment, the Fifth Circuit erred in granting the officers qualified
immunity.257 While this decision marked a positive reversal, the Court
vacated and remanded the case, therefore subjecting Taylor to yet another
quest for justice and accountability.258 And while this case indicates that there
are some limits to qualified immunity for correctional officers in these
egregious situations, it does not extend criminal responsibility to officer
misconduct that clearly amounts to torture.
B. The Overall Benefits of a Criminal Torture Statute
Adopting the proposed criminal torture statute is one step towards

accountability for a specific kind of egregious conduct committed by public
officials. Having a particularized statute tailored to capture conduct
committed by public officials under circumstances where individuals are in
their custody or control will broaden its application on cases that either don’t
factually support charges under existing offenses, are difficult to establish
objectively, or where prosecutorial discretion may become a barrier to
accountability.259 Having a particularized offense for public official conduct
in the range of chargeable offenses will increase the pressure on prosecutors
to bring charges where charges under assault, battery, or homicide would
otherwise be dropped or difficult to establish due to recognized defenses.
The proposed criminal torture statute will also allow legal
accountability mechanisms to address police misconduct and brutality more
efficiently in criminal court. The proposed torture statute does not rely on the
reasonableness standard of the Fourth Amendment during searches and
seizures. Rather it reflects the objective elements of the crime of torture
committed by a public official that a jury can evaluate without having to
255
Id.
256
Id.
257
Id.
258
Id.
259
See Roger A. Fairfax, Jr., Prosecutorial Nullification, 52 B.C. L. REV. 1243, 1261
(2011); NICOLE GONZALEZ VAN CLEVE, CROOK COUNTY: RACISM AND INJUSTICE IN
AMERICA'S LARGEST CRIMINAL COURT 85 (2016) (quoting People v. Wabash, St. Louis &
Pac. Ry. Co., 12 Ill. App. 263, 265 (1882)); Angela J. Davis, The Power and Discretion of
the American Prosecutor, 49 DROIT ET CULTURES 55 (2005); KENNETH C. DAVIS,
DISCRETIONARY JUSTICE: A PRELIMINARY INQUIRY 190 (1971).

engage in the erratic analysis of Fourth Amendment reasonableness to assess

whether an officer who violated constitutional rights was nevertheless
reasonable in her or his conduct, or whether these circumstances entitle the
officer to qualified immunity. 260 The proposed criminal statute thus
represents a complementary and more reliable vehicle for increasing
accountability for police misconduct and brutality.
In the post-conviction context, the criminal torture statute is not
bound by the standards of the Eighth Amendment, but nevertheless
establishes criminal accountability for instances of police brutality that the
prosecution can establish beyond reasonable doubt within prisons, jails, and
other confinement facilities. The statute introduces an innovation that
distinguishes it even more from the requirements of Eight Amendment
litigation by establishing that victims of police brutality amounting to the
level of criminal torture do not have to prove that they suffered the cruel or
extreme pain intended by the alleged offender.261 For the establishment of
criminal liability, it will be sufficient that the official intended to cause cruel
or extreme pain and suffering irrespective of whether this official was, in fact,
successful at executing this intent against an individual. This broadens the
scope of cases that may be successfully brought by prosecutors for allegations
of mistreatment by public officials.
State adoption of this proposed statute may also compensate for the
incomplete and inadequate implementation of the United Nations Convention
Against Torture standards on a federal level. The unique structure of the
United States criminal legal system combined with the interpretations made
through Congress at the time of CAT ratification have prevented the
development of an extensive criminalization of torture domestically. 262 The
federal torture statute passed by Congress only applies extraterritorially, and,
with the federal government working alongside the individual state and local
governments, each state handles prosecutions of crimes according to its own
260
See Kit Kinports, Criminal Procedure in Perspective, 98 J. CRIM. L. CRIMINOLOGY
71, 74 (2007); Geoffrey P. Alpert & William C. Smith, How Reasonable Is the Reasonable
Man?: Police and Excessive Force, 85 J. CRIM. L. & CRIMINOLOGY 481, 486 (1994).
261
See supra Sections II.A and II.B.
262
See President’s Message to Congress Transmitting the Convention Against Torture
and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Summary and Analysis
of the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment, May 23, 1988, S. TREATY DOC. NO. 100-20, reprinted in 13857 U.S. Cong.
Serial Set at 3 (1990) citing to European Court of Human Rights, Judg. Court, January 18,
1978, Case of Ireland v. United Kingdom Series A, No. 25, 2 E.H.R.R. 25, 80; European
Commission of Human Rights, Op. Com., 5 November 1969, Greek Case, § 11, XII p. 501.

criminal statutes.263 The proposed statute would provide a mechanism for our
criminal legal system to better addresses the egregiousness of torture
committed by police officers and other public officials as envisioned by CAT.
C. Rebutting the Issue of De-Policing
An often-raised argument in favor of the current system of

underenforcement of criminal sanctions against police officers and against
the establishment of particularized criminal conduct for acts committed by
police officers is that it will endanger officers and increase crime.264 This is
the same argument frequently raised against legislating or amending state
excessive force statutes to better regulate police conduct. 265 The argument
proceeds as follows: adopting criminal sanctions targeted at police officers
will cause these officers to become hesitant in the line of duty for fear of
facing criminal charges. This hesitancy will over-deter the regulated police
conduct and enact a form of de-policing.266 Less aggressive law enforcement
will cause an increase in crime rates because offenders will know that police
officers are hesitant to pursue them, and overly cautious police officers will
be less effective in protecting their communities and themselves in fear of
potential criminal liability.267
These arguments, irrespective of their merit or lack thereof, do not
directly apply to this article’s proposal. The conduct the model criminal
torture statute criminalizes shares no overlap with the ordinary duties of a
police officer or other public official, and thus should cause no impediment
to them. The statute establishes criminal liability for acts so egregious they
clearly fall beyond the scope of regular acceptable police duties as defined
263
See e.g., Rachel E. Barkow, Federalism and Criminal Law: What the Feds Can
Learn from the States, 109 MICH. L. REV. 519, 521-2 (2011); William J. Stuntz, Unequal
Justice, 121 HARV. L. REV. 1969 (2008); Sara Sun Beale, Too Many and Yet Too Few: New
Principles to Define the Proper Limits for Federal Criminal Jurisdiction,46 HASTINGS L.J.
979 (1995); Rory K. Little, Myths and Principles of Federalization,46 HASTINGS L.J. 1029
(1995); Tom Stacy & Kim Dayton, The Underfederalization of Crime, 6 CORNELL J. L. &
PUB. POL'Y 247 (1997).
264
See Stephen Rushin & Griffin Edwards, De-Policing, 102 CORNELL L. REV. 721,
758-59 (2017); Frank Rudy Cooper, Understanding ‘Depolicing’: Symbiosis Theory and
Critical Cultural Theory, 71 UMKC L. REV. 335 (2002-2003).
265
See Cynthia Lee, Reforming the Law On Police Use Of Deadly Force: De-
Escalation, Preseizure Conduct, and Imperfect Self-Defense, U. ILL. L. REV. 629, 689-90
(2018).
266
See Rachel A. Harmon, When Is Police Violence Justified?, 102 NW. U. L. REV.
1119, 1156-57 (2008); Stephen Rushin & Griffin Edwards, De-Policing, 102 CORNELL L.
REV. 721, 758-59 (2017).
267
See Rachel A. Harmon, When Is Police Violence Justified?, 102 Nw. U. L. Rev.
1119, 1156-57 (2008).

by law and department policies. Most importantly, the criminal acts that fall
within the scope of the statute take place after an individual is placed in the
officer’s custody or control and not prior to or during the time in which an
officer is pursuing a suspect. 268 Criminal sanctions for torture committed by
public officials thus escape some of the de-policing concerns that often come
up in the context of excessive force statutes that aim to regulate conduct prior
to the police establishing custody or control of an individual. 269 If the
proposed criminal torture statute succeeds in deterring a public official from
committing conduct that falls within the acts prescribed by the statute, this
would not represent a threat of de-policing or overcaution on the part of the
police but, in fact, a successful example of police misconduct deterrence.
CONCLUSION
Our legal system has failed to address the full horror of police
brutality in part because we lack the proper language to describe it.
Identifying instances of egregious police brutality as torture gives us a name
for the scope of terror and violence that police officers and other public
officials inflict on individuals during searches and seizures as well as within
jails and prisons. It reveals police brutality as the intentional infliction of
cruel or extreme pain or suffering, whether mental or physical, against a
person who is in their custody or physical control. Prosecuting police
brutality as torture will save lives and protect individuals from trauma at the
hands of the state. Existing criminal statutes are filled with discretionary
standards that give deference to officers while civil remedies are incredibly
difficult to obtain due to the doctrine of qualified immunity. The proposed
model statute specifically addressing egregious acts of police violence
eliminates any presumption that such extreme conduct falls within regular
police duty. Prosecutors will be in a better position to bring charges for police
brutality without the burden of establishing an act falls beyond officer duty
and discretion and begin to change the social perception that police officers
are unrestricted in their role.
Police exceptionalism in our legal system has long reinforced a
license to further violence while breeding cynicism and distrust of the police.
The police have been entrusted with the unique privilege of policing
themselves while legislators have not adopted rules to strictly regulate their
practices. Insofar as prosecution of police brutality advances the public goods
of community trust and legal accountability, prosecutors and courts have
268
See supra Section II.A of this article.
269
See Cynthia Lee, Reforming the Law On Police Use Of Deadly Force: De-
Escalation, Preseizure Conduct, and Imperfect Self-Defense, U. ILL. L. REV. 629, 689-90
(2018).

failed to deliver.270 The experience gap between what lay people face in their
interactions with the legal system and what police officers face too often
without accountability has led to an environment of decreased public trust
towards law enforcement.271 The adoption of a particularized offense
defining police brutality as torture can capture the intensity of the criminal
mistreatment a victim suffers, while also establishing a clear path towards
holding police officers accountable for acts that would otherwise be left
unaddressed. Addressing these egregious acts through this article’s proposed
statute can help reduce the perception of impunity for police officers and
bring accountability levels back to those sufficient to maintain an acceptable
social equilibrium.
270
See Somil Trivedi & Nicole Gonzalez Van Cleve, To Serve and Protect Each Other: How
Police-Prosecutor Codependence Enables Police Misconduct, 100 B.U. L. REV. 895, 915
(2020).
271
See, e.g., Jeffery M. Jones, In U.S., Confidence in Police Lowest in 22 Years, GALLUP
(June 19, 2015), https://news.gallup.com/poll/183704/confidence-police-lowest-years.aspx
[https://perma.cc/R85E-J3QB] (suggesting that “recent incidents in which black men were
killed at the hands of white police officers” may have affected the way some view police).

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POLICE BRUTALITY AS TORTURE

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approximately 1% of all killings.6 Most of these killings occurred during

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officer’s duties.12 Prosecutors have been, at best, reluctant to pursue

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defer to officer and departmental discretion and their attendant presumption

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I. THE INADEQUACY OF EXISTING CIVIL AND CRIMINAL ACCOUNTABILITY

Police brutality during searches, seizures, and mistreatment of

A. Overcoming the Barriers to Accountability for Police Brutality

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1. The Insufficiency of Civil Remedies for Police Brutality

Instances of police brutality that take place during searches and

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deliberate indifference standard determines whether conduct is

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2. The Insufficiency of Existing Criminal Remedies for Police Brutality

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standard of the Fourth Amendment in criminalizing officers’ intentional use

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3. The Inadequate Implementation of the International Convention against

Generally, police brutality rising to the level of torture is widely

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was to be interpreted in a “relatively limited fashion, corresponding to the

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this treatment by the police constituted torture. 89 In Dragan Dimitjevic v.

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B. The Need for a Particularized Criminal Statute

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1. The Concern with Criminalization and Overcriminalization

Significant overlap exists between civil claims available to plaintiffs

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well as recognized as a peremptory rule of international law. 112 Thus

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micropolitics between police departments and their corresponding district

2. The Deterrent Function of the Criminal Torture Statute

State criminal statutes apply directly to individuals. This closer reach

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existing civil remedies. Particularizing the type of criminal charges brought

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reframed definition of certain actions and their gravity.125 On a larger

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individual police officers are minimal, criminal prosecutions of police

3. The Unique Retributive Function of the Criminal Torture Statute

Much of the focus on retribution in criminal law narrows in on the

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4. Police Militarization and the Criminal Torture Statute

Many were taken by surprise, when, in the wake of protests

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II. A MODEL CRIMINAL STATUTE FOR TORTURE COMMITTED BY PUBLIC