Beth A. Colgan, Fines, Fees, and Forfeitures, SSRN, August 15, 2107. Abstract below:
The use of fines, fees, and forfeitures has expanded significantly in recent years as lawmakers have sought to fund criminal justice systems without raising taxes. Concerns are growing, however, that inadequately designed systems for the use of such economic sanctions have problematic policy outcomes, such as the distortion of criminal justice priorities, exacerbation of financial vulnerability of people living at or near poverty, increased crime, jail overcrowding, and even decreased revenue. In addition, the imposition and collections of fines, fees, and forfeitures in many jurisdictions are arguably unconstitutional, and therefore create the risk of often costly litigation. This chapter provides an overview of those policy and constitutional problems and provides several concrete solutions for reforming the use of fines, fees, and forfeitures.
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.]
Op-Ed: Emma S. Ketteringham, Live in a Poor Neighborhood? Better Be a Perfect Parent, N.Y. Times, Aug. 22, 2017.
New Article: Olivia C. Jerjian, The Debtors’ Prison Scheme: Yet Another Bar in The Birdcage of Mass Incarceration of Communities of Color, 41 NYU Rev. L. & Soc. Change 235 (2017). Abstract below:
Though officially deemed unconstitutional, the debtors’ prison scheme consists of jailing low-income individuals for not being able to pay their legal financial obligations (“LFOs”), also known as criminal justice debt. These LFOs include fines, fees, and assessments—from traffic tickets to public defender fees. Two lawsuits, Cleveland, et al. v. City of Montgomery and Mitchell, et al. v. City of Montgomery, resulted in settlement agreements promising—among many other things—that anyone below 125% of the Federal Poverty Level would be considered indigent and, thus, would not be jailed for being unable to pay off their LFOs. The highly publicized Department of Justice’s 2014 report of its investigation of the Ferguson Police Department brought further attention to the debtors’ prison lawsuits, unleashing an onslaught of additional complaints exposing debtors’ prison schemes. Though many of the lawsuits filed did not explicitly mention race, most of them were filed in jurisdictions with large communities of color.
This Article argues that the debtors’ prison scheme employed on a national level across the United States functions like the War on Drugs as another “branch” of the race-based mass incarceration described by Michelle Alexander in her book, The New Jim Crow. Part II lays out the debtors’ prison scheme, from the causes to the consequences on individuals, and explains why the lack of definition of an individual’s “ability to pay” reinforces the racial disparity of the scheme. Part III demonstrates that the debtors’ prison scheme functions as a form of racialized social control similar to the War on Drugs, using Michelle Alexander’s analysis in The New Jim Crow. Part IV questions whether the law can make a difference in dismantling the debtors’ prison scheme through a Critical Race Theory lens.
New Book: Khiara M. Bridges, The Poverty of Privacy Rights (Stanford Univ. Press, 2017). Overview below:
The Poverty of Privacy Rights makes a simple, controversial argument: Poor mothers in America have been deprived of the right to privacy.
The U.S. Constitution is supposed to bestow rights equally. Yet the poor are subject to invasions of privacy that can be perceived as gross demonstrations of governmental power without limits. Courts have routinely upheld the constitutionality of privacy invasions on the poor, and legal scholars typically understand marginalized populations to have “weak versions” of the privacy rights everyone else enjoys. Khiara M. Bridges investigates poor mothers’ experiences with the state—both when they receive public assistance and when they do not. Presenting a holistic view of just how the state intervenes in all facets of poor mothers’ privacy, Bridges shows how the Constitution has not been interpreted to bestow these women with family, informational, and reproductive privacy rights. Bridges seeks to turn popular thinking on its head: Poor mothers’ lack of privacy is not a function of their reliance on government assistance—rather it is a function of their not bearing any privacy rights in the first place. Until we disrupt the cultural narratives that equate poverty with immorality, poor mothers will continue to be denied this right.
The introduction is also available on SSRN here.
New Article: Beth A. Colgan, Lessons from Ferguson on Individual Defense Representation as a Tool of Systemic Reform, 58 Wm. & Mary L. Rev. 1171 (2017). Abstract below:
This Article investigates the relationship between the decisions by lawmakers to use municipal and criminal systems to generate revenue and the lack of access to individual defense representation by using the Ferguson, Missouri, municipal court as a case study. The Article chronicles the myriad constitutional rights that were violated on a systemic basis in Ferguson’s municipal court and how those violations made the city’s reliance on the court for revenue generation possible. The Article also documents how the introduction of individual defense representation, even on a piecemeal basis, played a role in altering Ferguson’s system of governance. Using this case study, the Article examines the way litigating individual cases and seeking the enforcement of constitutional rights can alter the cost-benefit of using courts to generate funds by both increasing system expenses and decreasing revenues. Further, individual case litigation alters the cost-benefit of using courts as revenue generators by forcing officials to take a public position on municipal court practices, thereby informing and changing the public debate on crime policy. The Article posits that while individual defense representation will have the greatest systemic effects in systems like Ferguson’s, where there is a significant dependence on the courts for revenue, a pattern of unconstitutional activity, or the targeting of economically vulnerable communities, individual defense representation should be broadly understood as a tool for systemic reform.
The Article also raises theoretical and normative implications from the Ferguson experience regarding whether constitutional criminal procedural rules or local government controls over procedure serve as a better check against systemic abuses, and regarding the repercussions of a politically and doctrinally myopic focus on access to counsel as a solely constitutional, as opposed to political, matter.
Sandra G. Mayson, Dangerous Defendants, University of Pennsylvania Law School, Public Law Research Paper No. 16-30 (2016).
Bail reform is underway — but it is proceeding on shaky ground. The reform model, which deploys actuarial risk assessment to identify “high-risk” defendants, assumes that the state has the prerogative to detain or control dangerous defendants. This assumption is not new. But it is anomalous. In general, we do not permit the state to restrain sane, responsible adults solely to stop them from committing hypothetical future crimes, even those who are high-risk. The reform movement’s focus on danger thus crystallizes a fundamental question about pretrial policy: What justifies the state in restraining defendants for dangerousness before trial if we would prohibit the same restraint for equally dangerous members of the public? Although there is an extensive literature on preventive detention, neither the Supreme Court nor prior scholarship has focused on this comparative question. This Article endeavors to answer it. It makes the first effort to articulate and evaluate potential justifications for subjecting defendants to restraint that we would forbid for non-defendants who pose an equal risk. The Article explores doctrinal, deontological and instrumentalist justifications, but ultimately rejects them. It contends that pretrial restraint for dangerousness can only be justified at the risk threshold where we would authorize equivalent restraint of a member of the population at large. Communities, policymakers and courts should therefore determine what they believe this threshold to be, then ensure that pretrial risk assessment and management are tailored to it.