The Death Penalty on the Streets: What the Eighth Amendment Can Teach About Regulating Police Use of Force

26 Pages Posted: 12 Dec 2016

Date Written: Fall 2015


The use of force by police officers has traditionally been analyzed through the lens of Fourth Amendment reasonableness. The Supreme Court has decided that the proper question regarding the excessiveness of police force is whether the police officer acted as a reasonable law enforcement officer. When that police force is fatal -- what this Article deems the death penalty on the streets -- the legal question is the same, leaving us with an analysis that requires a heavy reliance on the officer's version of events and a host of disagreement on what constitutes appropriate police action. Reasonable minds can, and do, disagree on what constitutes reasonable police action because the reasonableness standard is divorced from any notion of what procedures police ought to follow before turning to deadly force. The August 9, 2014 killing of Michael Brown in Ferguson, Missouri, and countless unarmed others before and since him who have lost their lives at the hands of police, brings this unsatisfactory analysis to the forefront. The lack of clarity in the use of force reasonableness standard often leads to reasonableness being the default legal conclusion in cases brought against police officers, leaving victims of deadly police force without justice.

This Article offers punishment as another lens through which to view police force. The Supreme Court has consistently rejected arguments that the Eighth Amendment is the appropriate vehicle for dealing with excessive police force claims. However, reconceptualizing the use of deadly force by police officers as punishment provides a new understanding of the gravity of deadly police force and adds necessary substance to the reasonableness analysis. When police force is likened to punishment, the use of fatal force by police officers can be considered the administration of the death penalty on the streets, absent the procedural protections and focus on human dignity given in the criminal justice system through the Eighth Amendment. When considered in the context of punishment, the reasonableness analysis can be transformed to incorporate the value of human dignity and focus on protections against fatal police force that ought to be in place to protect the lives of all individuals.

Keywords: Sentencing, Death Penalty, Police, Deadly Force

JEL Classification: K14

Suggested Citation

Exum, Jelani, The Death Penalty on the Streets: What the Eighth Amendment Can Teach About Regulating Police Use of Force (Fall 2015). Missouri Law Review, Vol. 80, No. 987, 2015, University of Toledo Legal Studies Research Paper No. 2017-01, Available at SSRN:

Jelani Exum (Contact Author)

Detroit Mercy Law ( email )

651 East Jefferson Avenue
Detroit, MI 48226
United States
313-596-0219 (Phone)

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