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Rod Watson: Howard and his clones make case for appointed sheriff

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Timothy Howard (copy)

As Erie County Sheriff Tim Howard prepares to ride off into the sunset, a new crop of sheriff candidates vow to follow in his footsteps by not enforcing laws they don't like.

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Erie County residents filling out early voting ballots or heading to the polls in Tuesday's primaries have one particularly pressing question to answer: Who should be the county’s next sheriff?

But it’s time to ponder an even more fundamental issue: Should we even be voting on this particular office?

Retiring Sheriff Tim Howard’s four-term reign of error – dozens of inmates dying in county lockups and the resulting claims paid by taxpayers, the escape and subsequent murder of a state trooper by Ralph “Bucky” Phillips, and Howard’s pledge not to enforce laws he doesn’t like – can’t end soon enough.

Ordinarily we might just say good riddance when he retires, confident that no successor could be as bad while also mindful of the aphorism that “hard cases make bad law.” That warning should give us pause about tampering with the structure of government because of one outlier official.

But the fact that so many of Howard’s would-be successors mimic his disregard for the law indicates he could be more than just a one-off. Despite running to be the county’s top law enforcement officer, several Republican and independent candidates seem not to understand what the term means, particularly when it comes to the state’s dreaded SAFE Act.

They vow not enforce all of it or parts of it they deem unconstitutional, betraying ignorance not of what the word "enforcement" means, but a lack of understanding of our constitutional structure, in which the judiciary – not an administrator – is the arbiter of what’s constitutional and what’s not.

Make no mistake: The SAFE Act is an abomination. The gun control law is a fraud perpetrated on an unknowing public in the dead of night to score political points, with cosmetic provisions that "control" law-abiding gun owners while doing virtually nothing to stop violence, much of it committed with guns brought in from other states.

But the remedy is to elect a governor and state legislators who will repeal it, not to have law enforcement officers refuse to do the job they were elected to do.

Which brings me back to the question of why a mostly ministerial post is an elected office in the first place.

After all, city police commissioners are appointed, not elected. So are town and village police chiefs. So why are sheriffs elected?

The best answer seems to be habit. Imported from England, where the “shire-reeve” was appointed to look out for the king’s interests, the U.S. position eventually evolved into an elected post in keeping with the new nation’s “democratic fabric,” to the point that election became “not only a tradition, but in most states a constitutional requirement,” according to the American Sheriff’s Association, which notes that 98% of sheriffs are elected.

But as Howard’s tenure and the vows of some sheriff wannabes make clear, this tradition – like so many others in the post-Trumpian era – may not be able to withstand those who would destroy our constitutional framework under the guise of saving it.

Granted, an appointment process in the hands of a county executive with confirmation by the County Legislature still would be political, even if one step removed. As a Sheriff’s Association official told U.S. News and World Report for its article “Running for a Badge: Why Does the U.S. Still Elect Sheriffs?” in 2016, “You can’t take politics out of politics.”

But the difference would be that county executives and legislators are typically elected based on a much wider array of issues and concerns. With that broader perspective by the appointing officials, we would be much less likely to get a sheriff so singularly focused on one populist issue in defiance of both the law and his or her sworn duty.

We also might get a more representative crop of sheriffs. In its 2020 look at the office, the Reflective Democracy Campaign found that 90% of the nation’s sheriffs are white males and that “New York is near the bottom of the list in racial diversity among sheriffs.”

Still, mindful of objections to not giving a newly elected sheriff a chance or changing the post once a woman or minority gets in (this year’s candidates include both), not everyone is so quick to junk the elective system that has served Erie County so poorly.

Rich Taczkowski, a former North Collins councilman and village trustee, also served on prison advisory boards and was a state corrections officer. He brings a lot experience to the issue from various perspectives and piqued my interest in the topic.

His preferred solution is to broaden the array of candidates, to pull in corrections officials – given all the problems at the county’s jails – or candidates from other parts of the criminal justice system so that it’s not just “a contest of cops.” At the same time, he would strengthen the Legislature’s oversight powers by, among other things, hiring staffers with fiscal and policy expertise to analyze the office’s performance and using the chamber’s power of the purse to leverage reform.

Other options, he said, could include creating a commission to examine various alternatives, from an appointed system to redefining the office’s role, as some other counties have done.

The Reflective Democracy Campaign also doesn’t go so far as to advocate an appointive system. Noting that sheriffs run unopposed roughly 60% of the time, it calls voters and competitive elections the keys to change.

That sounds great in theory – but some of our theories about how democracy should work are proving inadequate to meet the current moment, when ignoring the law or redefining it as one sees fit has become standard operating procedure.

Granted, amending the state constitution to allow for an appointed sheriff would be an arduous process requiring votes by two separate Legislatures plus a public referendum. But that just means we need to start talking about it now.

In the meantime, as this year’s elections approach, we’ll just have to keep our fingers crossed.

After all, how much damage can electing the wrong sheriff do?

I hope we don’t continue finding out.

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