New Article: Liza Batkin, Wealth-Based Equal Process and Cash Bail, 96 N.Y.U. L. Rev. 1549 (2021). Abstract below:
Though indigency is not a suspect class, the Supreme Court has repeatedly applied heightened scrutiny to laws that deprive low-income people of certain rights they can’t afford. It has done this through a makeshift doctrine that combines the principles of Equal Protection and Due Process. But the absence of a generalizable rule behind what this Note refers to as “wealth-based equal process” leaves the Court’s few constitutional protections for low-income people vulnerable to erosion by conservative Justices. This threat looms especially large as recent litigation draws on that doctrine to challenge the unfair treatment of indigent people in the criminal justice system. This Note attempts to shore up wealth-based equal process doctrine by proposing a general principle: Courts must apply heightened scrutiny when the government, by putting a price on a fundamental right that only the government can fulfill, entirely deprives an indigent person of that right. The Note then applies this principle to cash bail, revealing that the pretrial detention of indigent defend- ants lies at the heart of this doctrine and requires heightened scrutiny.