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75 Emory L.J. 1 (2025-2026)

handle is hein.journals/emlj75 and id is 1 raw text is: OUR PROGRESSIVELY BRUTAL CONSTITUTION: A LEGAL EXPRESSIVIST ACCOUNT OF THE EXCESSIVE FORCE DOCTRINE Danielle C. Jefferis* ABSTRACT The Constitution forbids some forms of physical violence. However, the scope ofits protection depends on the legal status of the person subjected to the violence. The Fourth Amendment protects a person outside the criminal legal system from a state actor's objectively unreasonable force. A pre-trial detainee has a similar, though weaker, right under the Due Process Clause. But after conviction, a person's right of protection from state violence has nearly vanished: the Eighth Amendment prohibits only force applied maliciously and sadistically for the very purpose of causing harm. Rather than meaningfully limiting state violence, this doctrine constructs a constitutional framework where legal protections diminish as a person moves deeper into the criminal legal system. In doing so, it exposes a progressive brutality embedded in our constitutional order. This Article makes two primary contributions. First, it reconceptualizes the constitutional doctrine governing state violence not as a series of single- Amendment-focused decisions but as one interconnected doctrine. This doctrine is inextricably intertwined with the criminal legal system, operating within what I call the policing-punishmentpathway the continuum ofstate violence from initial police contact to post-conviction imprisonment. Second, this Article is the first to examine the force doctrine through a legal expressivist lens. In doing so, it contends that the law offorce not only reflects but also reinforces a social hierarchy of bodily worth. Though framed as a safeguard for individual rights, the constitutional force doctrine rationalizes * Schmid Professor for Excellence in Research (2024-2025, 2025-2026) and Associate Professor of Law, University of Nebraska College of Law. Thanks to Paulina Arnold, David Cruz, Sharon Dolovich, Zina Makar, Margo Schlanger, Catherine Smith, the participants at the UCLA-Michigan Incarceration Law Roundtable, the AALS Section on Constitutional Law, and my colleagues at the University of Nebraska College of Law for their insightful and thoughtful feedback, as well as to Cassie Engel and Andrew Caputo for their research assistance. Thanks also to Crenshaw Allen-Hall, Claire Pellegrin, and the rest of the editors of Emory Law Journal for their work preparing this piece for publication. A McCollum Grant supported my work on this Article.