Category Archives: Access to Justice

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 Article: “Delaware’s Constitutional Mirror Test: Our Moral Obligation to Make the Promise of Equality Real”

Strine, Leo E., Delaware’s Constitutional Mirror Test: Our Moral Obligation to Make the Promise of Equality Real (September 22, 2017). U of Penn Law School, Public Law Research Paper No. 17-43. [Abstract below]

This lecture, delivered as the 2017 James R. Soles Lecture on the Constitution and Citizenship at the University of Delaware, addresses whether Delaware has lived up to the constitutional principles of equality. Delaware, although a part of the Union, was a slave state, and after the Civil War, a Jim Crow state. It was slow to embrace the ruling in Brown v. Board of Education, although Delaware Chancellor Collins J. Seitz had ruled for the black plaintiffs in Belton v. Delaware and ordered their admission to the formerly all-white schools. Ultimately, a metropolitan desegregation remedy was put in place by the federal courts in the late 1970s, after state officials dragged their feet and failed to implement an effective plan for desegregation.

The Court’s remedy effectively desegregated the New Castle County schools and prevented the creation of schools with high concentrations of poverty. In the 1990s, the State sought and obtained freedom from court supervision, arguing that it had gone beyond the court’s mandate in desegregating schools and could be trusted to ensure the rights of all children. Now, it is 2017. What has happened?

Delaware’s major city, Wilmington, remains divided among four school districts with a majority suburban voting base, created by the State to implement the court-ordered desegregation plan, but these school districts no longer seek to create racial balance in their schools. Wilmington now has elementary schools that are overwhelmingly high-minority and high-poverty. Middle schools of the same kind exist, and persistent economic and educational gaps between white and black children exist. During this period of resegregation, crime has grown in northern New Castle County to the point where Wilmington has a murder rate among the highest in the nation. Drop-out rates and youth crime rates among black kids far exceed those among white kids.

Yet, no extra resources have been given to the schools that face the greatest challenges and, in fact, in terms of the most important resource — teachers — the staff in urban schools have less experience than the staff in suburban schools with high income and low minority populations.

In this lecture, Chief Justice Strine asks whether Delawareans, having said we could protect the rights of our black children, are prepared to face the constitutional mirror test, and to recognize that kids who have less, need more — especially kids and families who have been victimized by hundreds of years of discrimination.

Rather than just identify the problem, Chief Justice Strine outlines a potential reform plan that would reorganize the New Castle County schools so that Wilmington was part of one well-resourced and geographically compact Northern New Castle County school district. This would allow for the selection of a high quality educational leader who could put in place a coherent plan to address the needs of poor children.

The Chief Justice also suggests the following: a 220-day school year; a full day, including an early arrival option with breakfast, after-school homework time, nutritious snacks, and activities; and a requirement that students grade seven and up engage in an after-school activity year round.

Because this plan is focused on poverty, it addresses racial inequality in a race-neutral way—nearly 60% of black families in Delaware are at or below 200% of the federal poverty level, as compared to 26% of white families. The plan also addresses the needs of all twenty-first century families as the extended school year would reduce the need for expensive summer camps and tutors; the extended school day and added extracurricular activities would reduce before and after-care costs for working parents; and the addition of nutritious meals during the school day would reduce the burden on impoverished families.

Further, the plan can be scaled up and implemented across the state, cutting redundancies and inefficient overhead costs throughout Delaware school districts and providing a coherent district-wide approach to classroom instruction.

In terms of how it can be financed, Chief Justice Strine points out that Delawareans pay far lower tax rates than they did when the state was more prosperous. He notes that failing to invest in education will continue to cost Delawareans in terms of crime, lost jobs, and hopelessness, finally asking, “[H]ow can we afford not to if we really care about our constitutional commitment to equality?”

Op-Ed: “Courts Sidestep the Law, and South Carolina’s Poor Go to Jail”

Timothy Williams, Courts Sidestep the Law, and South Carolina’s Poor Go to Jail, New York Time, October 12, 2017. [“One homeless man has been arrested or cited 270 time on the same charge…”]

New Article: “Tipping the Scales of Justice: The Role of the Nonprofit Sliding Scale Law Firm in the Delivery of Legal Services”

-, Mitch, Tipping the Scales of Justice: The Role of the Nonprofit Sliding Scale Law Firm in the Delivery of Legal Services (September 21, 2017). Univ. of Wisconsin Legal Studies Research Paper No. 1424. Available at SSRN: https://ssrn.com/abstract=3040840 [Abstract below]

Most research on providing legal services for low-income clients has focused on (1) government-funded programs, (2) private donor-funded programs, and (3) pro bono programs. Despite the valuable services these programs provide, a well-documented justice gap persists. Other models for the delivery of legal services exist, but are not well known or understood. One such approach has existed for years without scholarly study: the nonprofit organization that only serves low-income clients and receives its funding primarily on the basis of sliding-scale fees paid by clients. Based upon the author’s personal experience starting a nonprofit Sliding Scale Law Firm (SSLF), and informed by interviews with attorneys working at SSLFs across the country, Part I of this article describes the structure of these nonprofit SSLFs. Part II addresses the role that the SSLF model fills in the overall system of legal service delivery: SSLFs reduce the justice gap by providing services to clients who cannot obtain free legal services, but cannot afford to hire an attorney at prevailing market rates.

New Article: “Beyond Earned Citizenship”

Muneer I. Ahmad, Beyond Earned Citizenship, 52 Harv. L. Rev 258 (2017). [Abstract Below]

For more than a decade, a single rubric for legalization of the 11 million undocumented people in the United States has dominated every major proposal for comprehensive immigration reform, and continues to do so today: earned citizenship. Introduced as a rhetorical move intended to distinguish such proposals from amnesty, the earned citizenship frame has shaped the substantive
provisions of the legislation by conditioning legalization on the performance of
economic, cultural, and civic metrics. In order to regularize status, earned citizenship
would require undocumented individuals to demonstrate their ongoing societal contributions at multiple intervals over a probationary period of many years, and they would remain subject to deportation for failure to do so. Such a behavioral approach expresses a particular moral basis for legalization and a normative vision of citizenship, and it aspires to place millions of people on a path to citizenship. And yet, despite the centrality of earned citizenship in contemporary immigration debates and the magnitude of its ambition, there has
been virtually no scholarly treatment of its substance, ideology, or normative
claims. While the election of Donald Trump has rendered progressive immigration
reform improbable in the next several years, this is all the more reason to examine the failed logic and structure of recent reform proposals. This Article explores the origins and illuminates the deep structure of earned citizenship, and it critically evaluates its virtues and shortcomings as matters of politics, morality, policy, and law. Although laudable for its inclusionary promise, earned citizenship suffers from serious and previously unaddressed theoretical and conceptual flaws that reinscribe the moral claims of restrictionists, illuminate and imperil our larger understandings of citizenship, and invite consideration of alternative frameworks for legalization. The rightward electoral shift has closed a window for progressive reform for now, but when it is next pried open, a different moral and legal framework for legalization may be required.

Upcoming Symposium: “Public Interest Mobilization and Access to Justice Movements in the New Democratic State” — Wisconsin Law Review Symposium, October 27, 2017

Full schedule available here.

Op-Ed: “In California, poor people go to jail, rich people go free. How long will this go on?”

Editorial Board, In California, poor people go to jail, rich people go free. How long will this go on?, The Sacramento Bee, August 28, 2017. [A look into California’s cash bail system and its disparate effect on California’s less fortunate.]

New Article: “Keeping Gideon’s Promise: Using Equal Protection to Address the Denial of Counsel in Misdemeanor Cases”

New Article: Brandon Buskey & Lauren Sudeall Lucas, Keeping Gideon’s Promise: Using Equal Protection to Address the Denial of Counsel in Misdemeanor Cases, 85 Fordham L. Rev. 2299 (2017).  Abstract below:

The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to counsel, and the U.S. Supreme Court has made clear that right is applicable to all defendants in felony cases, even those unable to afford a lawyer. Yet, for defendants facing misdemeanor charges, only those defendants whose convictions result in incarceration are entitled to the assistance of counsel.

The number of misdemeanor prosecutions has increased dramatically in recent years, as have the volume and severity of collateral consequences attached to such convictions; yet, the Court’s right to counsel jurisprudence in this area has remained stagnant. Critics of the doctrinal and pragmatic problems created by the Court’s actual incarceration standard have advocated for various reforms to better protect people accused of misdemeanors, including redefinition or expansion of the right to counsel and legislative changes that would cut back on incarceration and allow states to better apportion their limited resources among defendants.

This Article offers a novel perspective, grounded in due process and equal protection and a line of Supreme Court cases that guarantee equal access to the courts. Viewed in that light, indigent misdemeanor defendants denied counsel may not suffer from a Sixth Amendment violation under the law as it stands, but they are deprived of meaningful access to the courts on the basis of wealth. It suggests that reconceputalizing the plight of misdemeanor defendants through the lens of due process and equal protection may help to identify the most effective judicial and legislative solutions to the crisis of “assembly line justice.”

 

Article: Access to Justice: What to Do About the Law of Wills

Article: Iris J. Goodwin, Access to Justice: What to Do About the Law of Wills, 5 Wisc. L. Rev. 947 (2016).

Blog Post: Why I — and Legal Aid — Stand in Solidarity with LSC

Blog Post: Rachel Rintelmann, Why I — and Legal Aid — Stand in Solidarity with LSC, Making Justice Real blog (Mar. 17, 2017).