The problems of policing extend beyond the street and into areas of our lives that are often hidden from view. This Article focuses on how policing affects people in one such place where they are particularly vulnerable: the emergency room. It explores how the courts’ interpretation of the Fourth and Fifth Amendments has resulted in the criminalization of the emergency room. The ER is where people go when they are vulnerable and injured. ERs play a crucial “safety-net” function for those who do not have access to other types of medical care. Yet courts have interpreted the ER as an extension of the public street, generally permitting the police to engage in highly intrusive searches and questioning there. The doctrine cannot account for the unique characteristics of the ER and the medical vulnerability of patients. Further, police investigations in the ER are enhanced by the participation of medical professionals who have existing professional norms as well as their own history and current evidence of bias and discrimination. Finally, the courts’ treatment of the ER as an extension of the street raises the same concerns of racialized street policing because of the convergence of police and marginalized groups in safety-net emergency rooms. The presence of police in the ER has a particularly pernicious effect in emergency rooms that have large percentages of racial minority and poor patients. Especially in these ERs, the doctrine’s blind eye to medical vulnerability also renders invisible the race and class dynamics undergirding policing and access to healthcare. I conclude by suggesting that the reasonable expectation of privacy standard should incorporate considerations of medical vulnerability and medical privacy. Further, as we question the harm or necessity of police presence in communities, we should conceptualize ERs as patient sanctuaries to achieve a better balance between the rights of vulnerable patients and public safety.
Legal scholarship tends to obscure how changes in criminal process relate to broader changes in society at large. This article offers a modest corrective to this tendency. By studying the Supreme Court’s right to counsel jurisprudence, as it has developed since the mid-70s, I show the pervasive impact of the concurrent rise of neoliberalism on relationships between defendants and their attorneys. Since 1975, the Court has emphasized two concerns in its rulings regarding the right to counsel: choice and autonomy. These, of course, are nominally good things for defendants to have. But by paying close attention to how the Court has defined and mobilized “choice” and “autonomy,” a more complex picture emerges. I argue the Court’s turn to choice mirrors one made by policymakers who, starting in the 1970s, embraced a new, neoliberal paradigm for public administration. Under this new mode of neoliberal governance, the state cut investment in social welfare and promoted government regulations that afforded citizens the capacity to exercise choice in accessing increasingly limited public goods and entitlements. This approach, when applied to the court room, has produced troubling results. First, the range of choices accorded to defendants has been severely limited. Second, in practice, those choices have often lead defendants to inflict self-harm. Third, defendants have only been given the right to make choices free from interference; they are not granted a right to be well-equipped to make choices to their advantage. Indeed, the Court has simply ignored the social conditions that shape a person’s capacity to exercise meaningful, autonomous choice. The Court has disavowed any responsibility to defendants making choices about their representation in criminal court. This disavowal parallels one that has happened in society more broadly with the advance of neoliberalism: the federal government shrank social welfare, and abandoned those most likely to be criminalized. The Court and government’s systematic neglect has had grave consequences for defendants and their relationships with their attorneys. Ableism, poverty and racism undermine defendants’ ability to access justice and to collaborate with their attorneys. Instead of dismantling these barriers to equality, the Court has naturalized unequal, differential access, contingent on ability and class. It has entrenched the reality that outcomes in court will depend on these hierarchies. By increasingly focusing on the choices of individual defendants, the Court has shifted responsibility away from government to deliver due process in legal proceedings. In form and in impact, neoliberalism has transformed the right to counsel, one of the pillars of criminal procedure. This exposition suggests that when the rules of process produce suboptimal outcomes, any meaningful redress will likely lie far outside of the doors of criminal court.
New Article: Norrinda Hayat, Housing the Decarcerated, forthcoming California Law Review, Vol. 110, 2022. Abstract below:
The coronavirus pandemic exposed an issue at the intersection of the public health, carceral and housing crises – the lack of housing for the recently decarcerated. Early in the pandemic calls came to release incarcerated persons and cease arrests in light of the risks posed by failing to be able to socially distance while incarcerated. At the same time, the pandemic forced a national conversation about the sheer number of unhoused persons in our country. The pandemic created an emergent argument for both broad scale decarceration and publicly funded housing. The practical process of securing housing for the recently decarcerated, however, is fraught because of what is described in this article as the “culture of exclusion” that has long pervaded subsidized housing policy, enabled by a patchwork of federal laws, including the Anti-Drug Abuse Act (ADA) of 1988 and the Supreme Court case, HUD v. Rucker. The culture of exclusion is arbitrated by local housing authorities and works on three levels – eligibility, enforcement and set asides. As a result, formerly incarcerated persons are often rejected outright during the application process. In addition, persons who live in subsidized housing and are alleged to be engaged in or associated with anyone who is alleged to have participated in criminal conduct can be evicted making subsidized housing itself a pipeline into the prison industrial complex. This Article seeks to motivate a pathway towards housing the decarcerated by ending the culture of exclusion. In Part I, the article briefly updates the status of the prison abolition and right to housing movements. Part II builds on the idea that stable housing for formerly incarcerated persons is essential to the prison abolition movement’s success by reviewing summary results from pilot programs in New York, Washington and Michigan. Part III suggests that “one strike” policies, have created a broader “culture of exclusion,” which the Supreme Court validated in Rucker, further burdening the process of reentry for the recently decarcerated. Finally, Part IV, prescribes policy changes that are essential to housing the decarcerated even beyond repealing the ADA and overturning Rucker, including transcending the narrative of innocence, directing PHA discretion to admit not deny and utilizing civil rights laws to equalize voucher holders.
Katherine A. Sabbeth & Jessica Steinberg, The Gender of Gideon, 69 UCLA L. Rev. (forthcoming 2022). Abstract below:
This Article makes a simple claim that has been overlooked for decades and yet has enormous theoretical and practical significance: the constitutional guarantee of counsel adopted by the Supreme Court in Gideon v. Wainwright accrues largely to the benefit of men. In this Article, we present original data analysis, which demonstrates that millions of women face compulsory and highly punitive encounters with the justice system but do so largely in the civil courts, where no right to counsel attaches. The demographic picture that emerges is one in which the right to counsel skews heavily against women’s interests. As this Article shows, the gendered allocation of the right to counsel has individual and systemic consequences that play an underappreciated role in perpetuating gender inequality.
We revisit well-known doctrine, and, in contrast to all prior literature, we place gender at the center of the Court’s jurisprudence on the right to counsel. Liberty principles have been paramount in the Court’s opinions, but the liberty interests of women have been devalued. In Lassiter v. Department of Social Services, the Court refused to recognize the termination of a Black mother’s relationship with her child as deserving the right to counsel. Prior scholars have shown that the Gideon Court aimed to protect Black men from abuses of state power, but protecting Black women from such abuse is nowhere in the Court’s jurisprudence.
Since Lassiter, the Court has refused to recognize a constitutional guarantee of representation for civil defendants with fundamental interests at stake, and the largest categories of these cases—family law, eviction, and debt collection—all disproportionately affect Black women. As we show, the gendered deprivation of a right to counsel relegates women to a secondary legal status and impinges on the functioning of American democracy. Drawing on the example of housing deprivation, a highly visible collateral effect of the pandemic, we illustrate how lawyerless defendants are now the norm in the civil justice system, with women most severely impacted by this crisis. First, their individual rights are routinely trampled. Powerful governmental and private adversaries of these women have captured the civil courts, with the result that judges regularly fail to enforce even well-established law. Second, without lawyers, appeals are scarce, and the law fails to evolve in areas of particular importance to women’s lives. Third, women’s ability to act in the world, protected by the rule of law, has been disproportionately compromised, resulting in women’s entrenched subordination. Finally, without lawyers to serve as watchdogs in the civil courts, constitutional doctrine has rendered women’s most important legal problems invisible. This has undermined opportunities to identify the system’s shortcomings and agitate for reform.
In 2018, the Ninth Circuit ruled in Martin v. City of Boise that the city’s ordinance criminalizing individuals for sleeping or camping outdoors in public space—an increasingly popular method for cities to regulate the homeless—is unconstitutional under the Eighth Amendment’s Cruel and Unusual Punishments Clause. Martin was not the first case in which a court struck down an anti-homeless ordinance under the Eighth Amendment. However, it was the first to deem it unconstitutional for a city to punish a homeless person for sleeping outside when shelters are not “practically available,” even if they technically have available beds. The court in Martin said the shelters at issue were not practically available because they were religiously coercive. This Note argues, however, that courts reviewing criminalization measures should consider whether shelters are practically available to homeless individuals for reasons beyond religious coercion. Many functional barriers to shelter deprive homeless individuals of a meaningful choice, and the Eighth Amendment prevents governments from punishing individuals for matters beyond their control. Courts should make individualized inquiries when considering the constitutionality of criminalization measures to assess whether individuals experiencing homelessness truly have a meaningful “choice” in sleeping outside. However, the constitutional infirmities behind criminalization measures, the highly factual inquiries required of courts to determine their constitutionality, and their exacerbation of homelessness underscore the need for cities to stop criminalizing homelessness.
Whenever the topic of large jails and public hospitals in urban America is raised, a single idea comes to mind. It is widely believed that because we as a society have dis-invested from public health, the sick and poor now find themselves within the purview of criminal justice institutions. In Redistributing the Poor, ethnographer and historical sociologist Armando Lara-Millán takes us into the day-to-day operations of running the largest hospital and jail system in the world and argues that such received wisdom is a drastic mischaracterization of the way that states govern urban poverty at the turn of the 21st century. Rather than focus on our underinvestment of health and overinvestment of criminal justice, his idea of “redistributing the poor” draws attention to how state agencies circulate people between different institutional spaces in such a way that generates revenue for some agencies, cuts costs for others, and projects illusions that services have been legally rendered. By centering the state’s use of redistribution, Lara-Millán shows how certain forms of social suffering-the premature death of mainly poor, people of color-are not a result of the state’s failure to act, but instead the necessary outcome of so-called successful policy.
R. K. Brinkmann, Never Mistake Law for Justice: Releasing Indigent Defendants from Legal Purgatory, Wash. L. Rev. (2020). Abstract below:
Washington courts impose two mandatory legal financial obligations (LFOs) on almost anyone who pleads guilty to or is convicted of a crime: a $100 DNA sample fee and a crime victim penalty assessment of $250 for misdemeanors and $500 for felonies. These fines run afoul of the Social Security Act, which bars attachment of Social Security benefits to pay debts, including LFOs. As a result, defendants whose sole source of income is Social Security benefits are not obligated to pay their mandatory LFOs. But such defendants cannot obtain certificates of discharge to clear their conviction records and thus complete their reintegration into society. The Supreme Court of Washington recently denied review of State v. Conway, in which a disabled Social Security recipient petitioned for remission of her mandatory LFOs. The decision to not hear Conway’s case leaves impoverished Social Security recipients in a legal purgatory where they do not have to pay their LFOs but are simultaneously unable to discharge their criminal records. To correct this injustice, Washington should either bar courts from imposing any LFOs on defendants who are indigent or allow such defendants to petition for remission of mandatory LFOs, thereby freeing people such as Ms. Conway from a lifelong purgatory of legal debt.
Racialized mass incarceration enables forms of economic exploitation that evade traditional worker protections despite being integrated into conventional labor markets. Such exploitation is legitimated by normalizing incarceration as the baseline against which these practices are judged. In contrast, conventional social policy imagines an “economy” separate from state violence, opposing “free labor” to “involuntary servitude.” The emergent “carceral baseline” recharacterizes labor practices as subjects of criminal justice policy, not economic regulation, especially in “alternatives to incarceration.” Examples of this baseline’s deployment are drawn from regulation of child support work programs, Thirteenth Amendment challenges to community service “working off” criminal legal debts, minimum wage claims by workers in diversion programs, and legislative proposals to exclude formerly incarcerated workers from labor protections. Implications include the need to integrate insights from theories of nonmarket work and of racial capitalism that challenge the dominance of markets as objects of description and critique in law and political economy analysis.
Focus on the deleterious effects of the privatization of different functions in both the criminal adjudicative system and criminal legal system on the whole has increased on both the scholarship and policymaking fronts. Much of this attention lately has been directed to privatized police forces, privatized prisons, and even privatized prosecutors. As important as the examination of privatization and outsourcing in these arenas is, the role of the privatized public defender—especially those in rural America, with about 90% of the country’s landmass and more than 20% of its population—gets lost in the shuffle. This Article centers these public defenders, especially in the rural context, and the specific ethical conundrums that arise when local governments such as counties and cities decide to privatize their public defense services through the use of competitive bidding. It opens with a comparison of two comparable criminal cases with very different results of the accused to spotlight what happens when public defense is privatized. The Article then discusses the specific perverse incentives that rural public defenders face and burden under when their services are procured by way of competitive bid—not with the intention of arguing that such services should never be bid out, but rather that any jurisdiction using such a system should be fully cognizant of the risks they incur when choosing to do so. The Article then introduces, for the first time, the concept of “noble cause corruption,” previously used to explain and to some extent excuse police malfeasance, in a new context to explain the consequences of some of the choices rural public defenders make while burdening under contract systems, presumably for the good of their clients.
The importance of a roof over one’s head seems clear to most of us. But private charity, the insurance markets, and the regulatory state offer no guarantees that this most elemental need will be even minimally met. This Article focuses on the continuing denial of any federal constitutional right to even minimal housing, despite the sense that basic values such as meaningful liberty, equality, community, fundamental human flourishing, and basic capacity development seem to suggest a right.