Category Archives: Criminal Law

New Article: “Bail Nullification”

New Article: Jocelyn Simonson, Bail Nullification, 115 Mich. L. Rev. 585 (2017).  Abstract below:

This Article explores the possibility of community nullification beyond the jury by analyzing the growing and unstudied phenomenon of community bail funds, which post bail for strangers based on broader beliefs regarding the overuse of pretrial detention. When a community bail fund posts bail, it can serve the function of nullifying a judge’s determination that a certain amount of the defendant’s personal or family money was necessary to ensure public safety and prevent flight. This growing practice—what this Article calls “bail nullification”—is powerful because it exposes publicly what many within the system already know to be true: that although bail is ostensibly a regulatory pretrial procedure, for indigent defendants it often serves the function that a real trial might, producing guilty pleas and longer sentences when an individual cannot afford to pay their bail. By examining the ways in which community bail funds serve the functions that a nullifying jury might—allowing popular participation in an individual case to facilitate larger resistance to the policies and practices of state actors—this Article argues that community bail funds have the potential to change how local criminal justice systems operate on the ground, shifting and shaping political and constitutional understandings of the institution of money bail. Community bail funds give a voice to populations who rarely have a say in how criminal justice is administered, especially poor people of color. And the study of bail funds helps point toward other ways in which bottom-up public participation can help create a criminal justice system that is truly responsive to the communities that it is ultimately supposed to serve.

News Article: “After a Crime, the Price of a Second Chance”

News Article: Shaila Dewan & Andrew W. Lehren, “After a Crime, the Price of a Second Chance,” N.Y. Times, Dec. 12,2016.

Article: “The President’s Role in Advancing Criminal Justice Reform”

Report: “Diverted into Deportation: The Immigration Consequences of Diversion Programs in Maryland”

Report: “Diverted into Deportation: The Immigration Consequences of Diversion Programs in Maryland,”American University Washington College of Law Immigrant Justice Clinic & American Civil Liberties Union of Maryland (2016). [w/tables and charts]

Article: “Lessons Learned from Ferguson: Ending Abusive Collection of Criminal Justice Debt”

Article: Neil L. Sobol, “Lessons Learned from Ferguson: Ending Abusive Collection of Criminal Justice Debt,” 15 U. Md. L.J. Race Relig. Gender & Class 293 (2015).

On March 4, 2015, the Department of Justice released its scathing report of the Ferguson Police Department calling for “an entire reorientation of law enforcement in Ferguson” and demanding that Ferguson “replace revenue-driven policing with a system grounded in the principles of community policing and police legitimacy, in which people are equally protected and treated with compassion, regardless of race.” Unfortunately, abusive collection of criminal justice debt is not limited to Ferguson. This Article, prepared for a discussion group at the Southeastern Association of Law Schools conference in July 2015, identifies the key findings in the Department of Justice’s report and discusses the major points to be learned from the allegations in Ferguson. The lessons learned from Ferguson should be a guide to other municipalities that are or may be on the brink of developing similar abusive collection practices.

New Article: “Over-Disciplining Students, Racial Bias, and the School-to-Prison Pipeline”

New Article: Jason P. Nance, “Over-Disciplining Students, Racial Bias, and the School-to-Prison Pipeline,” 50 Richmond L. Rev. 1063 (2016).

Over the last three decades, our nation has witnessed a dramatic change regarding how schools discipline children. Empirical evidence during this time period demonstrates that schools increasingly have relied on extreme forms of punishment such as suspensions, expulsions, referrals to law enforcement, and school-based arrests to discipline students for violations of school rules, including for low-level offenses. Many have referred to this disturbing trend of schools directly referring students to law enforcement or creating conditions under which students are more likely to become involved in the justice system — such as suspending or expelling them — as the “school-to-prison pipeline.” Perhaps the most alarming aspect of over-disciplining students and of the school-to-prison pipeline generally is that not all racial groups are affected equally by these negative trends. This short symposium essay describes the observed racial disparities associated with disciplining students. It then discusses the concept of implicit racial bias, which appears to be one of the causes of these racial disparities. Finally, it describes the role that national and state government entities, including the U.S. Department of Education and state departments of education, can play in forming a comprehensive strategy to address the implicit racial biases of educators.


Article: “Race, Class, and Access to Civil Justice”

Article: Sara Sternberg Greene, “Race, Class, and Access to Civil Justice,” 101 Iowa L. Rev. 1263 (2016).

Existing research indicates that members of poor and minority groups are less likely than their higher income counterparts to seek help when they experience a civil legal problem. Indeed, roughly three-quarters of the poor do not seek legal help when they experience such problems. Inaction is even more pronounced among poor blacks. This Article uses original empirical data to provide novel explanations for these puzzling and troubling statistics. This study shows, for the first time, a connection between negative past experiences with the criminal justice system and decisions to seek help for civil justice problems. For those familiar with the law, civil and criminal law are separate categories across which experiences do not generalize, any more than a negative experience of subways would lead one to avoid driving. For most respondents, though, the criminal and civil justice systems are one and the same. Injustices they perceive in the criminal system translate into the belief that the legal system as a whole is unjust and should be avoided. Second, this Article shows that past negative experiences with a broad array of public institutions perceived as legal in nature caused respondents to feel lost and ashamed, leading them to avoid interaction with all legal institutions. Third, my data and interviews suggest that respondents helped make sense of these troubling experiences by more generally portraying themselves as self-sufficient citizens who solve their own problems. Seeking help from the legal system might run counter to this self portrayal. Finally, this Article provides a novel analysis of racial differences in how much citizens use the civil legal system and argues that disparities in trust levels help to explain these differences. This Article concludes by discussing potential policy implications of the findings and identifies key areas for further research.

Article: “Nickel and Dimed into Incarceration: Cash-Register Justice in the Criminal System”

Article: Laura A. Appleman, “Nickel and Dimed into Incarceration: Cash-Register Justice in the Criminal System,” 57 B.C. L. Rev. (forthcoming 2016).

Criminal justice debt has aggressively metastasized throughout the criminal system. A bewildering array of fees, fines, court costs, non-payment penalties, and high interest rates have turned criminal process into a booming revenue center for state courts and corrections. As criminal justice administrative costs have skyrocketed, the burden to fund the system has fallen largely on the system’s users, primarily poor or indigent, who often cannot pay their burden. Unpaid criminal justice debt often leads to actual incarceration or substantial punitive fines, which turns rapidly into “punishment.” Such punishment at the hands of a court, bureaucracy, or private entity compromises the Sixth Amendment right to have all punishment imposed by a jury. This Article explores the netherworld of criminal justice debt and analyzes implications for the Sixth Amendment jury trial right, offering a new way to attack the problem. The specter of “cash-register justice,” which overwhelmingly affects the poor and dispossessed, perpetuates hidden inequities within the criminal justice system. I offer solutions rooted in Sixth Amendment jurisprudence.


Article: “Charting School Discipline”

Article: Susan DeJarnatt, et. al., “Charting School Discipline,” The Urban Lawyer (forthcoming).

Exclusionary school discipline can steer students away from educational opportunities and towards the juvenile and criminal justice systems. As many public school systems have turned to exclusionary school discipline practices over the past two decades, they have also increasingly adopted charter schools as alternatives to traditional public schools. This research is examines the student codes of conduct for the charter schools in the School District of Philadelphia to consider the role of their disciplinary practices and the potential effects on charter students.

We analyzed every disciplinary code provided to the Philadelphia School District by charter schools within Philadelphia during the 2014-2015 school year. Our goal was to examine the provisions relating to detention, suspension, and expulsion, along with other disciplinary responses, to determine what conduct can result in disciplinary consequences, what responses are available for various types of misbehavior, and whether the code language is clear or ambiguous or even accessible to students or potential students and their parents or caregivers. We conclude that too many of the codes are not well drafted, and too many follow models of punitive discipline that can be used to push out non-compliant or challenging students. Some codes grant almost complete discretion to school administrators to impose punitive discipline for any behavior the administrator deems problematic.

We hope that this work will spur future research on implementation of charter school discipline policies to illustrate how charter schools are using their codes. Further, we hope to see the charter sector develop model disciplinary codes that move away from a zero tolerance punitive model towards disciplinary systems based on restorative principles.


New Articles/Essays: “Collected Essays on the Threat of Economic Inequality”

New Articles/Essays: “Collected Essays on the Threat of Economic Inequality”

Making the Dream Real
Richard R. Buery, Jr.
Insuring Civil Justice for All: Meeting the Challenges of Poverty

Honorable Fern Fisher

Income Inequality Hits Home

Steven W. Bender

Shoe Stories: Civil Rights and the Inequality of Place

Elise C. Boddie

The Price of Equal Justice: How Establishing a Right to Counsel for
People Who Face Losing Their Homes Helps Tackle Economic Inequality

Andrew Scherer

Criminal Records in the Post-“Great Society”

Michael Pinard

Shackles Beyond the Sentence: How Legal Financial Obligations Create a Permanent Underclass


Their Debt to Society

Erika L. Wood

The Overincarceration of America’s Poor: The Return of Debtor’s Prison

Reginald T. Shuford

Crime and Incarceration: A Future Fraught with Uncertainty

Ronald F. Day

Inequality and the Texas Photo ID Law

J. Gerald Hebert

Reproductive Rights and Women’s Economic Security:
Pieces of the Same Puzzle

Janet Crepps and Kelly Baden

Relative Care Within a Public Health Paradigm

Kele M. Stewart

Changing the School to Prison Pipeline:
Integrating Trauma Informed Care in the New York City School System

Ellen Yaroshefsky and Anna Shwedel

Ending Child Poverty in New York

Melanie Hartzog and Patti Banghart

Building a City of Equal Opportunity

Jennifer Jones Austin

Remarks: The New York City Human Resources Administration’s Role in
Fighting Poverty and Income Inequality and Preventing Homelessness

Steven Banks