New Article: George Lipsitz, “In an Avalanche Every Snowflake Pleads Not Guilty”: The Collateral Consequences of Mass Incarceration and Impediments to Women’s Fair Housing Rights, 59 UCLA L. Rev. 1746 (2012). Abstract below:
In our society, individual acts of intentional discrimination function in concert with historically created vulnerabilities; these vulnerabilities are based on disfavored identity categories and amplify each injustice and injury. Although anyone can be a victim of housing discrimination, women of color suffer distinct collateral injuries from barriers to housing that are collective and cumulative in nature. At the intersections of race and gender, the welfare and dignity of black women and Latinas are undermined by the national failure to enforce fair housing and fair employment laws, by the concentration of poverty in neighborhoods inhabited largely by blacks and Latinos, by the criminalization of poverty, by the proliferation of punishments inside the criminal justice system, and by the expansion of the collateral consequences of arrests and criminal convictions in society at large. Produced by a plethora of public policies and private actions, these injuries entail more than denials of rights and resources to individuals. They evidence the existence and extent of a concentrated political attack on communities of color. Women play a central role in these practices because punitive policies are almost always legitimated by allegations of nonnormative behavior by poor people and people of color, allegations that occlude the actual intersectional vulnerabilities created by multiple forms of raced and gendered exploitation inscribed inside the routine practices of contemporary capitalism. This Article delineates how housing and employment discrimination combine to make black women and Latinas particularly vulnerable to surveillance, arrest, and incarceration. It shows how race and gender discrimination make reentry into society especially difficult for women ex-offenders from aggrieved communities of color. It establishes the historical causes and consequences of moral panics about the putative misbehavior of women of color, and it concludes by proposing a combination of litigation, legislation, and social mobilization to address the execrable consequences of intersectional discrimination and mass incarceration.
New Reports: 6 new reports from Homeless Rights Advocacy Project. Overview and links to the reports from Seattle University’s news release:
The reports identify common problems with existing laws and policies and offer effective, legally sound alternatives. Links to all current reports are included below. All current and previous HRAP reports can be accessed by visiting the HRAP homepage.
One report offers the first statewide analysis of laws that restrict begging:
- Begging restrictions are often illegal and can create more problems than they solve. The vast majority of Washington cities (86 percent) criminalize begging, and most of these laws (83 percent) can result in criminal charges. These laws can lead to serious collateral consequences that make it extremely difficult for already vulnerable people to access housing and employment. Read the full report.
Four of the reports are geared to the network of city officials, non-profit organizations and others working to alleviate homelessness:
- Accessory dwellings have potential. Several cities around the country are experimenting with accessory dwellings -small units in residential backyards – to address housing shortages and homelessness crises. This guide analyzes innovative case studies in Colorado, Washington, California, and Oregon to provide lessons on structural design, project funding, screening and matching residents and hosts, potential legal liabilities, zoning regulations, and public relations considerations. Read the full report.
- Authorized encampments can be effective interim solutions. Cities are also trying authorized encampments as temporary solutions, but implementation has been haphazard due to a dearth of practical guidance. This guide summarizes the challenges and opportunities posed by various encampment models along the West Coast. Read the full report.
- Faith communities can be key partners. Faith-based organizations, such as churches, mosques and synagogues, are important providers of social services; they also enjoy special legal protections, allowing them to provide shelter even when prohibited by local law. This guide surveys successful practices and key considerations from faith communities in Washington and Colorado. Read the full report.
- Safe parking is a must for people living in vehicles. Vehicle residents are a growing part of homeless populations. This guide examines case studies of successful safe parking programs in Washington and California that mitigate harm to vehicle residents and offer support that can lift people out of poverty and into stable, permanent housing. Read the full report.
The final report is a practical guide for homeless individuals and others who have been arrested:
- Unhoused people who are arrested can be their own best advocate. Public defenders often are overworked and have little time to spend with clients; many defendants do not even receive one. But even represented unhoused defendants can help themselves with HRAP’s first-of-its-kind guide to navigating court, which introduces common legal terms and timelines, and provides strategies for those experiencing homelessness to advocate for themselves. Read the full report.
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: 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: Renee Hatcher, The Everyday Economic Violence of Black Life, Journal for Affordable Housing and Community Development Law, Volume 25, Number 3, 2017. Abstract below:
A book review of Ferguson’s Fault Lines by Kimberly Norwood. In analyzing the thirteen chapters, the review highlights the central themes of spatial racism, uneven development, and discriminatory practices in Ferguson and the greater St. Louis metropolitan region. In doing so, the review argues that discriminatory development practices create unequal access to education, employment, transportation, health outcomes, and life expectancies, based on race and zip code. These development practices also give rise to and enable discriminatory policing.
The review ultimately argues that state-sanctioned discriminatory policies of both physical and economic violence are intertwined, cyclical, and compounding. In looking to solutions, I advocate that community-driven strategies that address historical discrimination and inequality will move the needle towards progress. By the same token, local housing and development policy makers should employ a racial equity impact assessment for all future investments and policies and take affirmative action to address the geography of inequality that they have helped to create and sustain.
New Article: Josh Gupta-Kagan, The School-to-Prison Pipeline’s Legal Architecture: Lessons from the Spring Valley Incident and Its Aftermath, 45 Fordham Urban L.J. 83 (2017). Abstract below:
This Article examines the 2015 Spring Valley High School incident – the high-profile arrest of a Columbia, South Carolina high school student for “disturbing schools” in which a school resource officer threw her out of her desk – to identify and illustrate the core elements of the school-to-prison pipeline’s legal architecture, and to evaluate legal reforms in response to growing concern over the pipeline.
The Spring Valley incident illustrates, first, how broad criminal laws transform school discipline incidents into law enforcement matters. Second, it illustrates how legal instruments that should limit the role of police officers assigned to schools (school resource officers) can direct their involvement in situations that school officials should handle without law enforcement. Third, too few diversion programs are operated by schools, leading to law enforcement involvement as a means to access such programs. Fourth, prosecutors too rarely exercise discretion to screen out charges that are ill-suited for juvenile court involvement.
The Spring Valley incident helped catalyze promising, but incomplete, legal reforms in South Carolina. Some reforms have caused some important successes – most notably, the Richland County (Columbia) Sheriffs Department’s school resource officers have cut school-based arrests of teenagers significantly. Statewide, a bill has passed one house of the legislature to narrow the scope of disturbing schools. A new state regulation limits when schools may refer misbehavior to law enforcement. Reforming all aspects of the pipeline’s legal architecture would lead to broader and more lasting change.
News Coverage: Jessica Silver-Greenberg & Shaila Dewan, When Bail Feels Less Like Freedom, More Like Extortion, N.Y. Times, March 31, 2018.
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: Alec Schierenbeck, The Constitutionality of Income-Based Fines, forthcoming Chicago L. Rev. (SSRN Mar. 2018). Abstract below:
When Americans break the law — whether it’s a minor offense like littering or a serious crime like felony assault — they tend to face the same financial penalties, no matter their income. The consequence is a system that puts low-income offenders in a cycle of debt and jail while letting rich offenders break the law without financial consequence, and which fails to meet basic goals of the justice system: to treat like offenders alike, punish the deserving, and encourage respect for the law. Outside the United States, however, systems that assess fines based on earnings have been around for nearly 100 years. The most common model — known as the “day fine” — scales penalties according to a person’s daily income. These models are credited with ensuring proportionality in sentencing, improving the effectiveness of fines as a sanction, and even allowing fines to serve as an alternative to incarceration. But by their very nature, day fine systems can lead to startling results: in 2015, for instance, a €54,000 speeding ticket was assessed to a Finnish businessman caught going 65 miles per hour in a 50 zone. This article is the first in-depth attempt to examine the constitutionality of a system of income-based fines that would levy significant financial penalties on the wealthy. Ultimately, it concludes that potential constitutional obstacles — arising primarily from the Excessive Fines Clause of the Eighth Amendment — are navigable, especially if a U.S. system caps how high fines can go. As more people awaken to the burden that criminal justice debt imposes on the poor, the article suggests that now may be an opportunity for a larger reconceptualization of financial sanctions — away from the inflexible fine and toward income proportionality.