Radley Balko, Mississippi judge resigns after barring mother from seeing newborn because of unpaid court fees, Washington Post, October 26, 2017. [“The mother has been forbidden from any contact with her newborn for 14 of the 18 months the child has been alive.”]
Rulli, Louis, Seizing Family Homes from the Innocent: Can the Eighth Amendment Protect Minorities and the Poor from Excessive Punishment in Civil Forfeiture? (2017). University of Pennsylvania Journal of Constitutional Law, Vol. 19, p. 1483, 2017; U of Penn Law School, Public Law Research Paper No. 17-48. [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.
Skolnik, Terry, Homelessness and the Impossibility to Obey the Law, 43 Fordham Urban Law Journal 741 (2016). [Abstract below]
Building on Jeremy Waldron’s work, this article argues that it can be impossible for homeless people to obey the law in certain contexts. This occurs where there are insufficient public resources to allow homeless people to comply with the law, or the homeless lack the capacity or opportunity to obey quality of life rules. This article explores the moral objections to enforcing quality of life rules in such circumstances, how courts view homeless people’s impossibility to obey the law, as well as policy and litigation strategies applicable in such cases.
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.