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CHAPTER 5.
STATE AND LOCAL LAW

ENFORCEMENT

The principal remedy for racial violence is effective State and local law enforcement. In Mississippi, the widespread failure of local officials to solve and prosecute cases of racial violence and the pattern of harassment of local Negroes and civil rights workers raise questions not only about their performance as individuals, but also about the institutions which they represent. In assessing the reasons for such failures and abuses, it is important to consider the nature of the office itself and its effect on the type of person selected and the quality of official conduct.

SHERIFFS

The office of sheriff in Mississippi, as in other Southern States, is closely linked in history and character to the early English sheriff. During the last thousand years the sheriff's duty to enforce the law has remained remarkably unchanged. In Mississippi today, as in medieval England, the sheriff is the principal "conservator of peace in his county” with the duty to wield “the executive power

for the preservation of the public peace.”? He is re

Smith, Police Systems in the United States 66-67 (1960). See also Howard, An Introduction to the Local Constitutional History of the United States 302 (1889).

* South v. Maryland, 59 U.S. (18 How.) 396, 402, 403 (1855). See also Miss. Code $$ 4254-56 (1956). Smith, op. cit. supra note 1, at 67; German, Day & Gallati, Introduction to Law Enforcement 56 (1962). This is particularly true in Mississippi where the powers of the State Highway Safety Patrol are limited principally to the enforcement of the traffic laws. In 1964, in an apparent effort to strengthen local law enforcement, the Patrol was authorized to investigate violence. It was also given general police powers but only upon the issuance of a governor's proclamation. Miss. Code $ 8082 (Supp. 1964). No such proclamation has been issued.

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quired to arrest persons who break or attempt to break the peace within his view, to demand peace bonds for good behavior, to pursue and commit misdoers, and for these purposes to call out the men of the county—the posse comitatus.

These duties require him not only to arrest persons suspected of crimes but also, by affirmative action, to prevent violence or breach of the peace. As one court has held:

His duties are not merely to apprehend those who have
committed offenses but to prevent such offenses. . . .
The duties imposed cannot be performed without some
degree of activity and diligence to inform himself of
conditions in his county. Certainly they preclude the
idea that he may, without dereliction, shut his eyes to
what is common knowledge in the community, or pur-
posely avoid information, easily acquired, which will
make it his duty to act. ... [I]t is the duty of the sheriff
and his deputies to keep their eyes open for evidence
of public offenses, and ... it is a distinct neglect of duty
for them to ignore common knowledge of law violations
or to intentionally avoid being where they have reason

to believe that such offenses are being committed. ..." The sheriff in Mississippi also has numerous civil functions that are unrelated to his law enforcement duties. Traditionally he has served as executive officer of the county courts, keeper and victualer of the jail, and, most significantly, as tax collector. Over the years the office has been encumbered by a host of new functions. The sheriff now acts in such diverse capacities as reforestation warden, librarian, inspector of child labor, and executive officer of certain State and county administrative agencies. In fact, these

3 South v. Maryland, supra note 2, at 402; Miss. Code § 4254 (1956).

* State v Reichman, 135 Tenn. 653, 664-65, 188 S.W. 225, 228 (1916). See also, State v. Williams, 346 Mo. 1003, 144 S.W. 2d 98 (1940); Farmers Mut. Fire Ass'n of Shelby County v. Hunolt, 81 S.W. 2d 977 (Mo., 1935); In re Sulzmann, 125 Ohio St. 594, 183 N.E. 531 (1932).

See Smith, op. cit. supra note 1, at 66–73.
See, e.g. Miss. Code $$ 2883, 3227, 4257, 4993, 6029, 6988, 6989 (1956).

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new duties have multiplied to such an extent that, according to one Mississippi authority, the “purely civil functions of the office leave

very little time for the performance of its traditional police duties.”

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Selection

The sheriff is essentially a “political bird of passage, and not a professional law enforcement officer. His election by the citizens of the county significantly affects and determines the manner in which he enforces unpopular laws. As one commentator notes:

[T]hey all reflect to a certain extent the mores of the
county that has elected them. The sheriff who owes
his election to a particular wing of the county, or a
certain segment of public opinion, is not apt to en-
force a state law unpopular with those who elected
him. If gambling, prostitution, or Negro beating are
part of the mores of the community, the sheriff often

reflects this majority view in his handling of his office." The absence of a significant Negro electorate in Mississippithe result of a purposeful and effective effort on the part of State and local officials to deny the franchise to Negroes 10—insures that sheriffs will be responsible only to the white community.

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"Highsaw & Mullican, Guidebook of the County Sheriff 3 (1948). Smith, op. cit. supra note i, at 72.

• Babcock, State and Local Government and Politics 111-12 (1962). See also i Brookings Institution, State and County Government in Mississippi 625 (1932), and testimony of Robert Brumfield, T. 57: “If your citizens don't support the law, well, you have no law.”

10 1965 Report of the U.S. Commission on Civil Rights, Voting in Mississippi 1. In 29 Mississippi counties the majority of the population is Negro. U.S. Bureau of the Census, US Census of Population: 1960, vol. I, pt. 26, at 24-25 (1963). There are, however, no Negro sheriffs and at the time of the Commission's hearing, only seven percent of the State's Negro voting age population was registered to vote. Voting in Mississippi, supra at 60–61.

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This problem is compounded by the lack of impartiality related to the absence of professional training. Since there are no qualifications for the office relevant to police duties,"1 persons are often elected who lack background or experience in law enforcement. Prior to his election, the sheriff of Madison County had been an instructor for 20 years in the local agricultural high school. The sheriff of Adams County was a farmer who served for five years as an employee of the State Motor Vehicle Comptroller's Office. In short, “as a police officer he is usually untrained, frequently devoid of previous experience, and in most cases without special qualifications."

The lack of training produces investigations which are often unsatisfactory. A State prosecuting official gave this description of the sheriff's police work:

Some are completely untrained; some have no knowledge of law enforcement or investigative matters; some hire men who do have; some do not hire such people. And it is very easy to tell when the cases are presented to a grand jury-where I hear them first-to tell which agency prepared the case by the way in which it has been investigated and prepared. The quality of the sheriff's performance is also affected by Mississippi law limiting him to a single term.'

16 This limitation

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11 The sheriff need only be a qualified elector, who believes in a Supreme Being, and who is not in default to local, State, or Federal governments. Miss. Code § 4232 (1956). Compare, Magna Carta (1215) (Men shall not be made sheriffs "unless they understand the law of the land, and are well disposed to observe it.")

12 T. 244, 260.
1: T. 142-43
1 Millspaugh, Local Democracy and Crime Control 14 (1936).

T.E. 129. 1" Miss. Const. art. 5, § 135; Miss. Code $ 4232 (1956). A 1964 amendment to that section of the Mississippi Constitution permits the sheriff to succeed himself if he does not also hold the office of tax collector, but other statutes provide that the sheriff shall always be tax collector. Miss. Code § 4266 (1956). In Illinois, Kentucky, and West Virginia sheriffs are limited to one 4-year term and in Delaware they are limited to one 2-year term. See National Sheriff's Ass'n, 1965 Directory of Sheriffs. The English sheriff was similarly limited. See Karraker, The Seventeenth Century Sherif 6 (1930).

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on the office has been said to keep the sheriff from having any “interest in the development” 1? and to result in his forced retirement:

[J]ust as he is beginning to learn the ins and out of his
job; build up a reliable system of contacts and become
familiar with the habits of the more predictable law of-

fenders within his jurisdiction.18 The lack of continuity may also adversely affect investigations of pending cases. Although a sheriff is required to maintain records pertaining to the jail, he is not required to keep any investigation records. For example, Sheriff Anders of Adams County testified that he had no information concerning several unsolved cases of racial violence because the previous sheriff had failed to provide him with any

As a practical matter, the elective sheriff is not subject to any executive or administrative review or sanction. "Since the sheriff is elected by the people, he can be made responsible only in part or in a minor degree to any other authority." 21 "Thus, there is generally no State authority to compel the enforcement of a law by local officers.” 22

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records.

Compensation

The method of compensating the sheriff tends to discourage vigorous law enforcement activities. The sheriff receives fees for serving a summons, taking bail bonds, impaneling juries, and similar activities. But he is not entitled to any fee or even to reimbursement for expenses incurred in preventing or investigat

17 T.E. 129.

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20 T.

Delta Democrat-Times (Greenville, Miss.), April 21, 1965, p. 2. 19 Miss. Code $ 4248 (1956).

430. * Brookings Institution, op. cit. supra note 9, at 809. In Mississippi the law allows removal of a sheriff from office only upon conviction for willful failure to keep the peace or upon a finding by the Governor, after a hearing, that the sheriff had failed to protect prisoners in his custody from mob violence. Miss. Code $ $ 2297, 4254, 4256 (1956).

Highsaw & Fortenberry, The Government and Administration of Mississippi 163 (1954). See also Brookings Institution, op. cit. supra note 9, at 809.

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