Category Archives: Criminal Law

Immigrant Family Separation Collection: news coverage, volunteer/giving links, and responses conservative disinformation

MoralsIf you follow my twitter feed (@EzraRosser) you know the family separation at the border really bothers me (it may be connected to the fact that my wife and children are Salvadorans, but I think there are plenty of non-personal reasons to be upset about what we have become). I decided it would be worthwhile to do a post that collects a lot of the news coverage, volunteer/giving/protest information, and responses to the conservative disinformation that is trying to obscure just how evil the Trump administration’s family separation policy is. My op-ed from last week in The Hill is here. But there is a lot coming out about the policy, conditions, and horror so I hope this small collection effort helps people sort through everything. If you have things that would be good to add, please email me and I will add things. It is broken down into sections: A. Overview of the Policy, B. Coverage of Conditions and ICE Practice, C. Responses to Conservative Disinformation, D. Volunteer/Giving/Donation Opportunities, E. Protest Information, and F. Additional Responses.

A. Overview of the Policy

B. Coverage of Conditions and ICE Practice

Not sure how to classify this. . . justifications given by Trump administration officials:

C. Responses to Conservative Disinformation

D. Partial List of Volunteer/Giving/Donation Opportunities (Thanks to Jayesh Rathod!) (if you would like to add more, just email me).

E. Protest Information (Thanks to Jayesh Rathod!)

F. Additional Responses 




New Article: Punishing Poverty: California’s Unconstitutional Bail System

New Article: Christine S. Scott-Hayward & Sarah Ottone, Punishing Poverty: California’s Unconstitutional Bail System, 70 Stan. L. Rev. Online 167 (April 2018).

New Article: Privatizing Criminal Procedure

New Article: J.D. King, Privatizing Criminal Procedure, Georgetown Law Journal, Vol. 107, 2019, Forthcoming. Abstract below:

As the staggering costs of the criminal justice system continue to rise, many states have begun to look for non traditional ways to pay for criminal prosecutions and to shift these costs onto criminal defendants. Many states now impose a surcharge on defendants who exercise their constitutional rights to counsel, confrontation, and trial by jury. As these “user fees” proliferate, they have the potential to fundamentally change the nature of criminal prosecutions and the way we think of constitutional rights. The shift from government funding of criminal litigation to user funding constitutes a privatization of criminal procedure. This intrusion of market ideology into the world of fundamental constitutional rights has at least two broad problems: it exacerbates structural unfairness in a system that already disadvantages poor people, and it degrades how we conceive of those rights. This Article proposes solutions to ameliorate the harshest effects of these rights-based user fees but also argues for the importance of resisting the trend of the privatization of constitutional trial rights.

New Article: Seattle, Wash., Ordinance 125393: Seattle Bans the Use of Criminal History in Rental Decisions.

New Article: Note, Seattle, Wash., Ordinance 125393: Seattle Bans the Use of Criminal History in Rental Decisions, 131 Harv. L. Rev. 1844 (2018).

New Report from the Sargent Shriver National Center on Poverty Law: The Shriver Summit: The Future of Justice

The Shriver Summit: The Future of Justice, held on December 1, 2017, in Chicago, Illinois, brought together advocates and experts to explore what we need to secure justice, every day, for everyone.

New Article: Isonomy, Austerity, and the Right to Choose Counsel

New Article: Janet Moore, Isonomy, Austerity, and the Right to Choose Counsel, 51 Indiana Law Review 167 (2018). Abstract below:

People who can afford to hire criminal defense attorneys have a Sixth Amendment right to choose a lawyer who is qualified, available, and free from conflicts of interest. The same right to choose counsel is routinely denied to people who need government-paid defense lawyers because they cannot afford to hire attorneys. In prior work, I invoked democratic theory to argue that this de jure discrimination blocks constitutional law formation by poor people and should be eliminated. This Article extends the analysis by explaining how a different theoretical approach—one grounded in libertarian commitments to private enterprise and austerity in public funding—shaped the nation’s first pilot study on counsel choice in a public defense setting. Those commitments sharply limited the measure of counsel choice offered and left the study with insufficient data to support generalizable conclusions. Thus, the study underscores questions about whether an equal right of counsel choice can be meaningful under conditions of austerity and might actually aggravate instead of ameliorate system deficits. The Article concludes that while meaningful counsel choice for poor people may be elusive, the constitutional interests at stake nevertheless warrant elimination of overt class-based discrimination from the vindication of a fundamental right.

News Coverage: When Bail Feels Less Like Freedom, More Like Extortion

News Coverage: Jessica Silver-Greenberg & Shaila Dewan, When Bail Feels Less Like Freedom, More Like Extortion, N.Y. Times, March 31, 2018.

New Article: Detention, Inc.

New Article: Denise L. Gilman & Luis Romero, Detention, Inc., SSRN Mar. 2018. Abstract below:

This paper addresses the influence of economic inequality on immigration detention. The U.S. Department of Homeland Security (“DHS”) detains roughly 350,000 migrants each year and maintains more than 30,000 beds each day. This massive detention system raises issues of economic power and powerlessness. This paper connects, for the first time, the influence of economic inequality on system-wide immigration detention policy as well as on individual detention decisions.

The paper begins with a description of the systemic impact that for-profit prisons have had on the federal immigration detention system, by promoting wide-scale detention. The resulting expansion of detention has led to ever-increasing profitability for the private prison sector, which allows the companies to exercise even more influence over policymakers to achieve yet higher levels of detention. The influence of wealthy private prison corporations also affects the very nature of immigration detention, leading to use of jail-like facilities that are the product offered by the private prison industry.

The paper then describes the mechanisms by which economic inequality dictates the likelihood and length of detention in individual cases. The detention or release decisions made by DHS in individual cases must account for the need to keep numerous detention beds full to satisfy the contracts made with powerful private prison companies. DHS regularly sets bond amounts at levels that are not correlated to flight risk or danger but rather to the length of time that the individual must be held in detention to keep the available space full. The article presents data, obtained from immigration authorities regarding detention and bond patterns at a specific detention center that bears out this point. The research finds an inverse relationship between the number of newly arriving immigrants in the detention center and the bond amounts set by ICE. During times when new arrivals were few, the amount required to be released from detention on bond was high; during times when there were many new arrivals, bond amounts were reduced or set at zero.

The article also presents another way in which economic inequality affects the likelihood of detention at the individual level. Release and detention are largely controlled through the use of monetary bond requirements, which must be paid in full. The regular use of financial bonds as the exclusive mechanism for release means that those migrants who are most able to pay are most likely to be released without regard to their likelihood of absconding or endangering the community. Wealth thus determines detention rather than an individualized determination of the necessity of depriving an individual of liberty.

The paper urges that the role of economic inequality in immigration detention raises troubling issues of democratic governance and the commodification of traditional governmental functions. The current system also leads to an unjustifiable redistribution of wealth from the poor to the rich.

The paper concludes with recommendations for reform. These reforms would help to sideline the influence of economic inequality in immigration detention decision-making.

New Article: “Policing the Poor and the Two Faces of the Justice Department”

New Article: David E. Patton, Policing the Poor and the Two Faces of the Justice Department, 44 Fordham Urb. L.J. 1431 (2017).

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

New Article: Louis S. Rulli, Seizing Family Homes from the Innocent: Can the Eighth Amendment Protect Minorities and the Poor from Excessive Punishment in Civil Forfeiture?, 19 U. Pa. J. Const. L. 1111 (2017). 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.