By Rachel Moran

Brady lists, named after the Supreme Court decision Brady v. Maryland,1 are lists some prosecutors maintain of law enforcement officers with histories of misconduct that could impact the officers’ credibility in criminal cases.2 Brady and its progeny require prosecutors to disclose exculpatory evidence within the government’s possession or control to defendants in criminal cases.3 This includes evidence that could impeach a witness’s credibility.4 Evidence that a police officer involved in a criminal case has, for example, previously written a false police report, lied in court, or used racial slurs during an arrest may be exculpatory because it casts doubt on the officer’s truthfulness, credibility, and impartiality.5 Brady lists originated from this disclosure obligation: the lists ostensibly allow prosecutors to keep track of, and disclose to defense counsel when necessary, information that negatively impacts officers’ credibility.6 Brady lists are simple in concept and complicated in practice. Prosecutorial practices around maintaining and using Brady lists vary widely and are almost completely unregulated.7Neither federal nor most state laws require prosecutors to maintain Brady lists, and recent journalist investigations suggest that most prosecutor offices do not maintain such lists.8 The lists that do exist are not all equal. Some prosecutor agencies maintain expansive lists of police officers who are accused of or found to have committed misconduct of nearly any kind,9 while others limit their Brady lists to officers with histories of dishonesty orcriminal convictions.10 Disclosure practices are similarly inconsistent: some prosecutors maintain Brady lists as internal mechanisms for assessing credibility concerns about their own officerwitnesses and refuse to provide their lists to people outside the office.11 Others affirmatively disclose their lists to defendants in criminal cases.12 Some make the lists available to the public.

By Monica C. Bell In police reform circles, many scholars and policymakers diagnose the frayed relationship between police forces and the communities they serve as a problem of illegitimacy, or the idea that people lack confidence in the police and thus are unlikely to comply or cooperate with them. The core proposal emanating from this illegitimacy diagnosis is procedural justice, a concept that emphasizes police officers’ obligation to treat people with dignity and respect, behave in a neutral, nonbiased way, exhibit an intention to help, and give them voice to express themselves and their needs, largely in the context of police stops. This Essay argues that legitimacy theory offers an incomplete diagnosis of the policing crisis, and thus de-emphasizes deeper structural, group-centered approaches to the problem of policing. The existing police regulatory regime encourages large swaths of American society to see themselves as existing within the law’s aegis but outside its protection. This Essay critiques the reliance of police decision makers on a simplified version of legitimacy and procedural justice theory. It aims to expand the predominant understanding of police mistrust among African Americans and the poor, proposing that legal estrangement offers a better lens through which scholars and policymakers can understand and respond to the current problems of policing. Legal estrangement is a theory of detachment and eventual alienation from the law’s enforcers, and it reflects the intuition among many people in poor communities of color that the law operates to exclude them from society. Building on the concepts of legal cynicism and anomie in sociology, the concept of legal estrangement provides a way of understanding the deep concerns that motivate today’s police reform movement and points toward structural approaches to reforming policing.