New Article: “Dangerous Warrants”

Sekhon, Nirej, Dangerous Warrants, Washington Law Review, Vol. 93, (2018) [Abstract below]

The Supreme Court has cast judicial warrants as the Fourth Amendment gold standard for regulating police discretion. It has embraced a “warrant preference” on the premise that requiring police to obtain advance judicial approval for searches and seizures encourages accurate identification of evidence and suspects while minimizing interference with constitutional rights. The Court and commentators have overlooked the fact that most outstanding warrants do none of these things. Most outstanding warrants are what this article terms “non-compliance warrants”: summarily issued arrest warrants for failures to comply with a court or police order. State and local courts are profligate in issuing such warrants for minor offenses. For example, the Department of Justice found that the municipal court in Ferguson, Missouri issued one warrant for every two of its residents. When issued as wantonly as this, warrants are dangerous because they generate police discretion rather than restrain it. Nonetheless, the Supreme Court has, most recently in Utah v. Strieff, treated non-compliance warrants as if no different from the traditional warrants that gave rise to the Fourth Amendment warrant preference.

This article argues that non-compliance warrants pose unique dangers, constitutional and otherwise. Non-compliance warrants create powerful incentives for the police to conduct unconstitutional stops, particularly in poor and minority neighborhoods. Their enforcement also generates race and class feedback loops. Outstanding warrants beget arrests and arrests beget more warrants. Over time, this dynamic amplifies race and class disparities in criminal justice. The article concludes by prescribing a Fourth Amendment remedy to deter unconstitutional warrant checks. More importantly, the article identifies steps state and local courts might take to stem the continued proliferation of non-compliance warrants.

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New Jotwell Review: “Discovering (Tax) Rights that the Poor Have Post-Welfare Reform” (reviewing Susannah Camic Tahk, The New Welfare Rights, BROOKLYN L. REV. (2017)

New Jotwell Review: Ezra Rosser, “Discovering (Tax) Rights that the Poor Have Post-Welfare Reform” Jotwell (Nov. 16, 2017) (reviewing Susannah Camic Tahk, The New Welfare Rights, BROOKLYN L. REV. (2017))

Op-Ed: “Mississippi judge resigns after barring mother from seeing newborn because of unpaid court fees”

Radley Balko, Mississippi judge resigns after barring mother from seeing newborn because of unpaid court fees, Washington Post, October 26, 2017. [“The mother has been forbidden from any contact with her newborn for 14 of the 18 months the child has been alive.”]

New Article: “Seizing Family Homes from the Innocent: Can the Eighth Amendment Protect Minorities and the Poor from Excessive Punishment in Civil Forfeiture?”

Rulli, Louis, Seizing Family Homes from the Innocent: Can the Eighth Amendment Protect Minorities and the Poor from Excessive Punishment in Civil Forfeiture? (2017). University of Pennsylvania Journal of Constitutional Law, Vol. 19, p. 1483, 2017; U of Penn Law School, Public Law Research Paper No. 17-48. [Abstract below]

Civil forfeiture laws permit the government to seize and forfeit private property that has allegedly facilitated a crime without ever charging the owner with any criminal offense. The government extracts payment in kind — property — and gives nothing to the owner in return, based upon a legal fiction that the property has done wrong. As such, the government’s taking of property through civil forfeiture is punitive in nature and constrained by the Eighth Amendment’s Excessive Fines Clause, which is intended to curb abusive punishments.

The Supreme Court’s failure to announce a definitive test for determining the constitutional excessiveness of civil forfeiture takings under the Eighth Amendment has led to disagreement among state and federal courts on the proper standard. At the same time, the War on Drugs has resulted in an explosion of civil forfeiture filings against the property of ordinary citizens — many are whom are innocent of any wrongdoing — and therefore there is a profound need for a robust constitutional test that satisfies the Eighth Amendment’s original purposes. This need has grown more urgent because civil forfeiture practices are increasingly plagued by police abuses motivated by self-gain, and recent studies show that civil forfeitures disproportionately affect low-income and minority individuals who are least able to defend their hard-earned property.

This Article documents the aggressive use of civil forfeiture in Pennsylvania and, by way of illustration, presents the plight of elderly, African-American homeowners in Philadelphia who were not charged with any crime and yet faced the loss of their homes because their adult children were arrested for minor drug offenses. In such cases, the Eighth Amendment should play a vital role in preventing excessive punishments. But some courts mistakenly apply a rigid proportionality test, upon prosecutorial urging, that simply compares the market value of the home to the maximum statutory fine for the underlying drug offense. When a home value is shown to be less than the maximum fine, these courts presume the taking to be constitutional. Under such a one-dimensional test, prosecutors routinely win because the cumulative maximum fines for even minor drug offenses almost always exceed the market values of modest, inner-city homes. This cannot be the proper test. Instead, this Article contends that the proper constitutional test for excessiveness must be a searching, fact-intensive inquiry, in which courts are required to balance five essential factors: (1) the relative instrumentality of the property at issue to the predicate offense; (2) the relative culpability of the property owner; (3) the proportionality between the value of the property at issue and the gravity of the predicate offense; (4) the harm (if any) to the community caused by the offending conduct; and (5) the consequences of forfeiture to the property owner.

Op-Ed: “Senate Democrats have a plan that would cut child poverty nearly in half”

Dylan Matthews, Senate Democrats have a plan that would cut child poverty nearly in half, Vox, October 26, 2017. [The American Family Act of 2017 would dramatically expand the child tax credit.]

Op-Ed: “Ivanka Trump’s Child Tax Credit is a Ploy to Pass Tax Cuts for the Rich”

Katie Hamm, Ivanka Trump’s Child Tax Credit is a Ploy to Pass Tax Cuts for the Rich, Talk Poverty, October 26, 2017. [One thing is clear, “[the] credit is clearly designed to help make the Trump tax plan…more politically palatable.”]

New Book: “Poison in the Ivy: Race Relations and the Reproduction of Inequality on Elite College Campuses”

byrdComps.inddNew Book: W. Carson Byrd, Poison in the Ivy: Race Relations and the Reproduction of Inequality on Elite College Campuses (Nov. 2017). Overview below:

The world of elite campuses is one of rarified social circles, as well as prestigious educational opportunities. W. Carson Byrd studied twenty-eight of the most selective colleges and universities in the United States to see whether elite students’ social interactions with each other might influence their racial beliefs in a positive way, since many of these graduates will eventually hold leadership positions in society. He found that students at these universities believed in the success of the ‘best and the brightest,’ leading them to situate differences in race and status around issues of merit and individual effort.

Poison in the Ivy challenges popular beliefs about the importance of cross-racial interactions as an antidote to racism in the increasingly diverse United States. He shows that it is the context and framing of such interactions on college campuses that plays an important role in shaping students’ beliefs about race and inequality in everyday life for the future political and professional leaders of the nation. Poison in the Ivy is an eye-opening look at race on elite college campuses, and offers lessons for anyone involved in modern American higher education.

Op-Ed: “The Barriers Stopping Poor People From Moving to Better Jobs”

Alana Semuels, The Barriers Stopping Poor People From Moving to Better Jobs, City Lab, October 12, 2017. [“Highly educated people still relocate for work, but exorbitant housing costs in the best-paying cities make it difficult for anyone else to do so.”]

Op-Ed: “The Tax Debate We Need”

Marshall Stienbaum, The Tax Debate We Need, Jacobin, October 20, 2017. [“Progressive taxation curbs the power of the wealthy – and that’s exactly why the Right hates it.”]

Last Call for Proposals!: Poverty Law Conference in Washington DC Mar. 23-24, 2018

This is the last call for proposals for the upcoming Poverty Conference in Washington DC Mar. 23-24, 2018. The deadline has long since passed but I haven’t made the schedule yet, so please email erosser@wcl.american.edu if you would like to participate in the conference. The info is below:

Poverty States: Federalism, Rights, and State Anti-Poverty Efforts. March 23-24, 2018 – American University Washington College of Law – Washington, D.C.

Announcing a poverty law conference, “Poverty States: Federalism, Rights, and State Anti-Poverty Efforts,” to be hosted by American University Washington College of Law on March 23-24, 2018.  This conference will focus on the interplay between federal, state, and local anti-poverty efforts and programs. This conference is a gathering for all whose work focuses on poverty and inequality.  There are three main lines to the conference:

  • Federalism (the relationship between the federal and state governments)
  • State and Local Level Anti-Poverty Efforts (what is working and what is not working, including state constitutional rights, access to justice initiatives, supplemental state programs, etc.)
  • General Poverty Law Works-in-Progress (subject matter not limited in any way)

If you would like to present, please submit a title and abstract ASAP to erosser@wcl.american.edu. Updates as they are available will be posted to the AUWCL Economic Justice Program’s website: www.economicjusticeprogram.com. Please note: there is a $100 conference registration fee and presenters are responsible for their own travel expenses. We look forward to seeing you in D.C. in March 2018!