How Sheriffs Undermine Democracy

How Sheriffs Undermine Democracy

An interview with Jessica Pishko, author of The Highest Law in the Land.

This February, Tom Homan—who led U.S. Immigrant and Customs Enforcement (ICE) for two years during Donald Trump’s first term, helped design its family separation policy, and is now Trump’s “border czar”—told an audience at a National Sheriffs’ Association meeting that the Trump administration is working to loosen standards for holding migrants, which would allow sheriffs to detain people arrested by ICE. That’s important to the Trump administration because it needs local law enforcement collaboration if it’s going to fulfill the president’s promise to deport millions of people.

Law enforcement agencies have expanded their cooperation with ICE in at least twenty states, and more agreements are pending. Those local governments collaborating with ICE are in Florida and Texas, but they’re also in New York, Maryland, and Massachusetts. Jessica Pishko’s recent book, The Highest Law in the Land: How the Unchecked Power of Sheriffs Threatens Democracy, shows how Trump’s anti-immigrant crusade is simultaneously a dramatic, inhuman escalation and part of a long tradition of American sheriffs detaining people to uphold a cruel racial hierarchy.

The Highest Law in the Land traces the history of the American sheriff starting with Reconstruction and draws a straight line between that origin story and the current, radical, and yet no longer fringe “constitutional sheriff movement,” which promotes Christian nationalist ideology. Brutality is inherent to the sheriff’s office, Pishko writes, which makes it even more dangerous when American culture imbues sheriffs with authority and a gloss of heroism—and our local governments grant them new powers.

—Meaghan Winter

Meaghan Winter: In The Highest Law in the Land, you write that the office of the sheriff is particularly “vulnerable to extremism and corruption.” What is a sheriff? And what are some of the primary reasons for that vulnerability?

Jessica Pishko: Those two questions and their answers are interrelated. Sheriffs are elected law enforcement officers at the county level, which means they disproportionately tilt toward representing more rural and suburban areas. In the United States, most people live in densely populated urban areas, but it’s a bit like the Senate: whether you have 200 people or 2 million people, you get one sheriff.

The other thing that’s different about sheriffs is that in most places, the sheriff is both in charge of policing—traffic stops, arrests, investigations—and running the county jail. [Jails are run by local governments and detain people who are either serving short-term sentences or awaiting trial or sentencing; prisons are run by states and the federal government and detain people who have already been convicted and sentenced.]

Police chiefs are appointed, which tends to make them more responsible to city government, whereas sheriffs, because they are elected on a county-wide level, are not considered directly underneath another department or other elected officials.

Why are sheriffs so prone to violence and corruption? It’s hard to measure these things, but it seems that on average sheriffs’ deputies shoot and kill more people than the police. One reason that there are troublesome corruption cases is that sheriffs are in charge of policing their own office, which gives them a great deal of discretion over how you train and how you staff. In most places, sheriffs can hire and fire whomever they want at will. So you create a situation that is based on patronage. Maintaining loyal staff is, in many places, very important to sheriffs.

We know that jails are very dangerous, and one of the things that’s happening as prisons start to decarcerate is that jails have gotten worse. Jail deaths have increased; we don’t have numbers on how many people die in jail, because in many states nobody requires that those numbers are recorded, and sheriffs keep track however they want. Texas is one of the few states that requires sheriffs to report deaths in custody. What happens in jails is a real human rights tragedy, and it’s all jails. It’s big jails, it’s small jails. It’s rural jails, it’s city jails. It’s Democratic jails, it’s Republican jails. Generally, Democratic sheriffs don’t run safer jails than Republican sheriffs.

Winter: Can you describe the constitutional sheriff movement, and why you reported on it?

Pishko: The constitutional sheriff movement has gained a lot of traction since I started working on the book in 2020, and it’s been subsumed into MAGA. In the constitutional sheriff movement, sheriffs are seen as unique law enforcement officers who are not just able to enforce the Constitution but in fact required to enforce it as written, which includes only the first ten amendments. They see themselves as protectors of a nostalgic version of the United States rooted in the idea of a country that just underwent a revolution. It’s similar to a theory believed by a lot of the patriot movements, including the Oath Keepers.

What makes it more concerning is that these are actual sheriffs serving in a law enforcement capacity, so they have a lot more ability to do harm, whereas Oath Keepers may act as police, but they’re not officially police. The movement comes from the way the office of sheriff is structured. The reason this far-right movement exists is because sheriffs are officers with a lack of accountability; they are sometimes corrupt; they are prone to the influence of right-wing propaganda; and they are predominantly policing areas where individuals believe in conservative ideas. They’re elected officials who are already disproportionately prone to far-right ideas. And the constitutional sheriff movement takes advantage of that and gives them a mission.

When reporting the book, I’d ask myself: why would the sheriffs fall into line with a MAGA agenda if they’re anti-government? What I realized is that it’s not really about being anti-government; it’s about a very specific vision of what the country is. The reason that’s more dangerous is that you can’t really argue people out of believing in a spiritual core. You cannot defeat it with facts and logic. And because sheriffs are elected, their interests interlock with the interests of the MAGA movement at large, especially when it comes to fundraising and winning votes.

Winter: In the book, you make the point that sheriffs often do very pragmatic tasks during an emergency, which helps create a sense that they’re of the community.

Pishko: A lot of rural and ex-urban places have been defunded—they don’t have emergency services, they don’t have hospitals, they often lack telecommunications—and the sheriffs have filled that gap. That’s why they’re in charge of firearm regulation or emergency management or road closures or, in the case of COVID-19, health regulation. As a result, sheriffs are very trusted as authority figures and politicians, more than people in Congress.

When I went around the country, especially to rural places, I saw that one reason the Constitutional Sheriffs and Peace Officers Association [the political organization that promotes the ideas of the constitutional sheriff movement] gets any traction at all is because sheriffs get very little training. The association offers what they call “trainings” live, in person. My view is you can’t underestimate what a big deal it is when someone comes to your county, especially for people who feel like their government doesn’t do anything for them.

Winter: Sheriffs can engage in political speech in a way that’s very different from other kinds of officials. The book shows this feedback loop where the sheriffs are promoting misinformation or conspiratorial political rhetoric, which then brings those ideas more into the mainstream, and then that in turn bolsters sheriffs’ own authority.

Pishko: During this last presidential campaign, so many sheriffs, and so many sheriff organizations, supported Trump. Supporting presidential candidates is new, but sheriffs are widely considered to have First Amendment free speech rights like politicians. This is reinforced by mainstream groups, like the National Sheriffs’ Association, and by case law and opinions. Sheriffs can, to some extent, do campaigning.

The immigration issue shows how the feedback loop works. Sheriffs are in a unique position to use their rhetorical power, as they are regularly in touch with their constituents. Groups like the Federation for American Immigration Reform, and people like Tom Homan, recruit sheriffs and urge them to support restrictive immigration measures, and then to talk [publicly] about those immigration measures, because they can.

In the last four years, sheriffs have gone on right-wing podcasts and talked about what they saw as problems with Biden’s immigration policy. Border patrol agents worked for Biden, so they were forbidden from doing that. When you get a group of sheriffs doing it, they’re talking to their electorate: if you vote for me, this is what I will do.

These sheriffs are also a trusted authority. They’re used as witnesses in congressional hearings, because we assume that they know what they’re talking about, we assume that they’re telling the truth; and when they use anecdotal evidence, for example, about crimes or dealing with immigrant populations, we assume that what they’re saying is right and correct. And so they really contribute to right-wing anti-immigrant propaganda, but in a way that’s particularly worrisome because they’re law enforcement.

Winter: The 287(g) program, which gives more authority to local law enforcement, is expanding. Can you tell us about that?

Pishko: The 287(g) program was actually created under Barack Obama, and it allows sheriffs to become de facto immigration agents. It’s a voluntary program; sheriffs don’t have to join it. In Trump’s first term, it grew a lot, from about thirty offices to about 150. It’s a weird program, because it doesn’t provide funding. Instead, sheriffs can ask ICE to train their deputies to be immigration agents. If you get booked into jail, 287(g) allows sheriff deputies to ask you if you are a U.S. citizen and interrogate you about your citizenship. And if they decide that you may be deportable, they can just turn you over to ICE, which will then begin deportation proceedings. ICE likes it because it reduces the workload for ICE agents. The problem with 287(g) is that it leads to racial profiling: sheriffs target Latino communities and people who don’t speak English for deportation.

Anti-immigrant groups recruit people to the program; constitutional sheriff groups recruit people to the program; Homan has recruited people to the program. It serves no other purpose than to deport more people. A lot of advocates asked Biden to end the program, which he could have done because it was created by an executive order. But Biden did not opt to do that.

Winter: What would oversight for sheriffs look like? What kinds of reforms can be made?

Pishko: I make it pretty clear in the book that I think sheriff’s offices should be abolished, and I think jails should be abolished. That’s where I come from. That said, I think it’s fair to give reform movements their due.

The issue with sheriffs is that they have to be reformed at the state level. One of the greatest harms of the constitutional sheriff movement—on the big picture level—is that it’s made it really common for sheriffs to believe they cannot be regulated because they are elected. That’s just not true. We regulate elected officials all the time.

In about two-thirds of states, sheriffs are in the state constitution. In the other third, they’re established by statute. So some states have huge roadblocks to regulation. Washington State has been trying to require sheriff candidates to go through a background check, which is not something they have to do now. This feels like a very basic requirement, but sheriffs are resisting it mightily.

Winter: In the book you write about reform movements that have gotten some traction.

Pishko: In 2018 in North Carolina, a group of Black sheriffs were elected as Democrats. They all ran on agreeing not to cooperate with ICE. Some of them were the first Black sheriffs in their counties. It’s a very white office, and a very Christian office.

As soon as these Black sheriffs were elected and said they were not going to cooperate with ICE, the North Carolina Sheriffs’ Association—which represents all 100 sheriffs in the state—wanted to pass a law requiring them to cooperate. The Black sheriffs were from the largest and the most populous counties, and the ninety-five sheriffs who supported cooperation were from the least populous counties.

In 2024 the North Carolina legislature passed the law requiring all sheriffs to cooperate with ICE. To be fair, it took them six years to do it, because advocates worked so hard to oppose the bill. That was the success. It’s a victory that doesn’t sound like a victory.

Meaghan Winter is the author of All Politics is Local: Why Progressives Must Fight for the States.