Category Archives: Criminal Law

New Article: “Rehabilitation or Revolving Door: How Parole Is a Trap for Those in Poverty”

New Article: Brittany Deitch, Rehabilitation or Revolving Door: How Parole Is a Trap for Those in Poverty, Georgetown Law Journal Online. Abstract below:

On any given day, one in four incarcerated persons in the United States is locked up for a technical violation of their community supervision. The United States has thus created a mass incarceration problem and mass supervision problem that fuel each other through the parole system. When an individual is fortunate enough to be released from prison and permitted to begin reentry into society through parole, the paroling authority often imposes numerous conditions of release. These myriad conditions vary widely, but many parolees are required to comply with exceedingly long lists of requirements, many of them financial. If a parolee violates any of these conditions, a revocation of parole occurs and the parolee is once again confined. This revolving door between prison and parole is all too common, with nearly half of all parole terminations resulting in the return of the parolee to prison, rather than successful completion of the sentence. In addition to the onerousness of the imposed conditions, the financial cost of compliance with parole conditions contributes to a host of the technical violations that further the United States’ mass incarceration problem. This Article argues that parole in its current form entraps those in poverty and must be reformed with particular focus on easing the financial burden of parole compliance.

New Article: To Outgrow a Mockingbird: Confronting Our History–As Well As Our Fictions–About Indigent Defense in the Deep South

New Article: Sarah Gerwig-Moore, To Outgrow a Mockingbird: Confronting Our History–As Well As Our Fictions–About Indigent Defense in the Deep South, 54 Ga. L. Rev. 1297 (2020).

New Book: “Profit and Punishment: How America Criminalizes the Poor in the Name of Justice”

9781250274656New Book: Tony Messenger, Profit and Punishment: How America Criminalizes the Poor in the Name of Justice (2021). Overview below:

In Profit and Punishment, a Pulitzer Prize-winning journalist exposes the tragedy of modern-day debtors prisons, and how they destroy the lives of poor Americans swept up in a system designed to penalize the most impoverished.

“Intimate, raw, and utterly scathing” — Heather Ann Thompson, Pulitzer Prize-winning author of Blood in the Water
“Crucial evidence that the justice system is broken and has to be fixed. Please read this book.” —James Patterson, #1 New York Times bestselling author

As a columnist for the St. Louis Post-Dispatch, Tony Messenger has spent years in county and municipal courthouses documenting how poor Americans are convicted of minor crimes and then saddled with exorbitant fines and fees. If they are unable to pay, they are often sent to prison, where they are then charged a pay-to-stay bill, in a cycle that soon creates a mountain of debt that can take years to pay off. These insidious penalties are used to raise money for broken local and state budgets, often overseen by for-profit companies, and it is one of the central issues of the criminal justice reform movement.

In the tradition of Evicted and The New Jim Crow, Messenger has written a call to arms, shining a light on a two-tiered system invisible to most Americans. He introduces readers to three single mothers caught up in this system: living in poverty in Missouri, Oklahoma, and South Carolina, whose lives are upended when minor offenses become monumental financial and personal catastrophes. As these women struggle to clear their debt and move on with their lives, readers meet the dogged civil rights advocates and lawmakers fighting by their side to create a more equitable and fair court of justice. In this remarkable feat of reporting, Tony Messenger exposes injustice that is agonizing and infuriating in its mundane cruelty, as he champions the rights and dignity of some of the most vulnerable Americans.

Related op-ed by the book’s author here.

New Article: Wealth-Based Equal Process and Cash Bail

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.

New Article: Is This the Worst Place to Be Poor and Charged with a Federal Crime?

New Article: Charles Bethea, Is This the Worst Place to Be Poor and Charged with a Federal Crime? New Yorker (Nov. 5, 2021). By Line Below:

The Southern District of Georgia does remarkably little to provide for indigent defendants.

New Article: Intersectionality, Police Excessive Force, and Class

New Article: Frank Rudy Cooper, Intersectionality, Police Excessive Force, and Class, forthcoming G.W. L. Rev. Abstract below:

Recent uprisings over the failure to hold police officers responsible for killing civilians—from Ferguson, Missouri to nationwide George Floyd protests—show the importance of excessive force as a social problem. Some scholars have launched racial critiques of policing as resulting from explicit or implicit racial bias. This Essay is the first to demonstrate that an intersectional analysis of both race and class helps explain both aggressive policing and the Court’s permissive excessive force doctrine.

This Essay identifies several take-aways from intersectionality theory’s basic insight that unique senses of self-identity and unique stereotypes form at places where categories of identity meet. First, seemingly distinct identities, such as race, gender, class, and so on, mutually construct one another such that, for example, racial discourses both influence and are influenced by gender discourses. Second, the categories of identity correspond with systems of social power, such as racism, sexism, classism, and so on. Third, those systems also intersect with and mutually construct one another, resulting in interlocking hierarchies of identities. Fourth, an individual’s social location within those hierarchies interacts with social institutions, such as policing, in ways that exacerbate or ameliorate oppression. This Essay thus applies intersectionality theory to better understand how race and class come together to produce police excessive force.

This Essay’s new insight is to connect a scholarly literature on class that critiques the Western neoliberal economic order to the scholarly literature on police excessive force. Neoliberalism has at least these components: (1) economic deregulation; (2) emphasis on individual responsibility; (3) slashing welfare; and (4) expansion of punitive apparatuses. It has created a “centaur state,” which, like the mythological creature, is a comely human on top and a beast on the bottom. The centaur state is easy on the top of society through economic deregulation and emphasis on individual responsibility. However, neoliberalism’s economic deregulation and dismantling of the social safety net leaves behind a vulnerable population known as the “precariat.” The centaur state seeks to push most of the precariat into low-wage, low-security jobs through slashing welfare and to incapacitate the remainder by increasing incarceration. The neoliberal economic order’s need to incarcerate the precariat thus led to aggressive new forms of policing.

Three phenomena found by means of intersectional analysis of race and class help explain disparate policing of poor black and brown neighborhoods versus that in rich white neighborhoods. First, the post-Warren Court has cooperated with a neoliberally inspired politics of law and order by deregulating the police through, inter alia, permissive excessive force doctrine. Second, the “new policing”—aggressive intrusions based on predictive data to prevent rather than solve crime—applies the “warrior cop” mode in poor black and brown neighborhoods and the “guardian officer” mode in rich white neighborhoods. The warrior cop prioritizes certain versions of honor, duty, and resolve as a means of justifying righteous violence because they believe in the inevitability of evil. Third, the potential for excessive force that inheres in warrior policing is what enhances boundaries between “good” and “bad” neighborhoods, whites and certain racial minorities, and the rich and the poor. In light of these linkages and dichotomies, this Essay calls for further intersectional studies of policing that consider class as an equal factor with race (as well as other identities).

New Book: White Space, Black Hood: Opportunity Hoarding and Segregation in the Age of Inequality

9780807000298New Book: Sheryll Cashin, White Space, Black Hood: Opportunity Hoarding and Segregation in the Age of Inequality (2021). About the book:

Shows how government created “ghettos” and affluent white space and entrenched a system of American residential caste that is the linchpin of US inequality—and issues a call for abolition.

The iconic Black hood, like slavery and Jim Crow, is a peculiar American institution animated by the ideology of white supremacy. Politicians and people of all colors propagated “ghetto” myths to justify racist policies that concentrated poverty in the hood and created high-opportunity white spaces. In White Space, Black Hood, Sheryll Cashin traces the history of anti-Black residential caste—boundary maintenance, opportunity hoarding, and stereotype-driven surveillance—and unpacks its current legacy so we can begin the work to dismantle the structures and policies that undermine Black lives.

Drawing on nearly 2 decades of research in cities including Baltimore, St. Louis, Chicago, New York, and Cleveland, Cashin traces the processes of residential caste as it relates to housing, policing, schools, and transportation. She contends that geography is now central to American caste. Poverty-free havens and poverty-dense hoods would not exist if the state had not designed, constructed, and maintained this physical racial order.

Cashin calls for abolition of these state-sanctioned processes. The ultimate goal is to change the lens through which society sees residents of poor Black neighborhoods from presumed thug to presumed citizen, and to transform the relationship of the state with these neighborhoods from punitive to caring. She calls for investment in a new infrastructure of opportunity in poor Black neighborhoods, including richly resourced schools and neighborhood centers, public transit, Peacemaker Fellowships, universal basic incomes, housing choice vouchers for residents, and mandatory inclusive housing elsewhere.

Deeply researched and sharply written, White Space, Black Hood is a call to action for repairing what white supremacy still breaks.

Editor’s Note: I just finished reading the book and found it a worthwhile read for a number of reasons. It does a good job bringing together various strands of work exemplified by The Color of Law, Dream Hoarders, and the Ferguson Report. Indeed, Cashin’s work connecting property law with over-criminalization is probably the biggest contribution for academic readers, though I also appreciated the tone of Cashin’s writing throughout. At times indignant, upset, and hopeful, the book makes a powerful case (similar to one Alexander Polikoff made years ago) that policymakers should focus on helping African Americans trapped in poor areas–that those communities should be prioritized–given both their unique history of subjugation and the role those spaces play in the country’s ideas about race and class.

New Article: The Color of Justice

New Article: Alexis Hoag, The Color of Justice, 120 Mich. L. Rev. forthcoming 2021. Abstract below:

In this review of Sara Mayeux’s Free Justice, I argue that one cannot tell a history of public defense without interrogating the political, social, and legal status of Black and other nonwhite people charged with crime. Racism and white supremacy played prominent roles in the development of the criminal legal system and impacted the creation, scope, and trajectory of modern indigent defense. By applying a critical race lens to the history of indigent defense and the development of the right to counsel, my hope is to provide additional insight into why public defense has struggled to deliver justice to the accused. I also use it as a tool to suggest alternative ways to advance justice for poor people ensnarled in the criminal legal system.

Mayeux focuses her account on elite corporate lawyers during the Progressive Era, their philanthropic efforts, and the legal profession’s changing identity. Free Justice unearths the legal profession’s dramatic shift in attitude toward public defense over the course of the twentieth century. Elite lawyers initially viewed public defense as akin to communism or as the socialization of the private bar, but by midcentury they regarded public defenders as exemplars of democracy and “the American way of life.” This dramatic shift, according to Mayeux, enabled most indigent defense delivery models to transition away from elite lawyers’ benevolence and ad hoc services to state financed public defender offices, legal aid societies, and nonprofits.

In Part I, I identify a central tenet of critical race theory and apply it to Free Justice’s utopian framework and Progressive Era notions of criminal conduct, charity, and the legal profession. In Part II, I examine the post-Gideon fallout in under-resourced Black communities, the growth of mass criminalization, and ineffective assistance of counsel jurisprudence through a critical race lens. I conclude the review with thoughts on a different method of delivering justice to indigent people facing criminal charges.

New Book: “Privilege and Punishment: How Race and Class Matter in Criminal Court”

9780691194332New Book: Matthew Clair, Privilege and Punishment: How Race and Class Matter in Criminal Court (2020). Overview below:

The number of Americans arrested, brought to court, and incarcerated has skyrocketed in recent decades. Criminal defendants come from all races and economic walks of life, but they experience punishment in vastly different ways. Privilege and Punishment examines how racial and class inequalities are embedded in the attorney-client relationship, providing a devastating portrait of inequality and injustice within and beyond the criminal courts.

Matthew Clair conducted extensive fieldwork in the Boston court system, attending criminal hearings and interviewing defendants, lawyers, judges, police officers, and probation officers. In this eye-opening book, he uncovers how privilege and inequality play out in criminal court interactions. When disadvantaged defendants try to learn their legal rights and advocate for themselves, lawyers and judges often silence, coerce, and punish them. Privileged defendants, who are more likely to trust their defense attorneys, delegate authority to their lawyers, defer to judges, and are rewarded for their compliance. Clair shows how attempts to exercise legal rights often backfire on the poor and on working-class people of color, and how effective legal representation alone is no guarantee of justice.

Superbly written and powerfully argued, Privilege and Punishment draws needed attention to the injustices that are perpetuated by the attorney-client relationship in today’s criminal courts, and describes the reforms needed to correct them.

New Article: Policing Marginality in Public Space

New Article: Jamelia Morgan, Policing Marginality in Public Space, 81 Ohio St. L.J. 1045 (2021). Abstract below:

The pandemic spurred by COVID-19 has illuminated in stark detail the threats to safety and health that have long-characterized the lived experiences of unsheltered individuals. The pandemic has brought to the forefront deeply rooted structural problems, which contributed to the social conditions now currently rendering houseless people particularly vulnerable to the brutal disease and premature death. Skyrocketing housing prices coupled with city-wide housing shortages have converged in recent years to create a nation-wide affordable housing crisis. According to a 2018 report by the National Low Income Housing Coalition, to meet existing housing demand, about 7.2 million more affordable rental housing units would have to be built across the United States. Although the severity of the problem varies across jurisdictions, the same report indicates that “[n]o state, including the District of Columbia, has an adequate supply of rental housing for extremely low income households.” In Los Angeles, perhaps the “epicenter” of the affordable housing crisis,6 the number of unsheltered people has increased 12% in Los Angeles County and 16% in the city of Los Angeles—a 52% increase for the city since 2011.7 Approximately 75% of homeless people in Los Angeles are unsheltered and live outside.

The housing crisis seems to have also prompted local jurisdictions to ramp up quality-of-life policing efforts in public spaces. In this Essay, I suggest that the housing crisis in particular provides a case study from which to scrutinize some of the historical and ongoing harms that flow from managing access to public space using criminal laws—and why constitutional prohibitions against status crimes, one tool in the arsenal of challenges against quality-of-life policing, fail to protect against overcriminalization. The first part of the Essay provides a brief discussion of some of the past and present uses of criminal law enforcement to regulate the boundaries of, and behaviors within, public spaces with a focus on how those laws served to reinforce racial, gender, class and other status hierarchies. In particular, I discuss how the use of criminal laws to regulate access to, and behaviors in, public spaces reinforces both existing status hierarchies and contributes to ongoing criminalization of historically and currently marginalized groups. In the second half of the Essay, I discuss the recent Ninth Circuit case, Boise v. Martin, as an entry point into a discussion on the constitutional limits of criminalizing acts that occur in public because, in the words of Justice White in his concurrence in Powell v. Texas, the person accused has “no place else to go.” I suggest that constitutional protections against the criminalization of status do little to limit or constrain an oft-ignored but harmful purpose of criminal law as applied to the policing of public space: the public ordering function. The public ordering function of criminal law highlights its role in targeting not only houseless individuals, but an array of marginalized groups deemed “out of place,” disruptive, disorderly, or dangerous. Centering in on this function of criminal law permits a more practical view of the limits of existing constitutional protections and provides a framework to better account for the full scope of the harms stemming from ongoing quality-of-life policing efforts targeted at houseless individuals and other marginalized groups.