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.
Article: Jocelyn Simonson, Bail Nullification, 115 Mich. L. Rev. 585 (2017).
This Article explores the possibility of community nullification beyond the jury by analyzing the growing and unstudied phenomenon of community bail funds, which post bail for strangers based on broader beliefs regarding the overuse of pretrial detention. When a community bail fund posts bail, it can serve the function of nullifying a judge’s determination that a certain amount of the defendant’s personal or family money was necessary to ensure public safety and prevent flight. This growing practice—what this Article calls “bail nullification”—is powerful because it exposes publicly what many within the system already know to be true: that although bail is ostensibly a regulatory pretrial procedure, for indigent defendants it often serves the function that a real trial might, producing guilty pleas and longer sentences when an individual cannot afford to pay their bail. By examining the ways in which community bail funds serve the functions that a nullifying jury might—allowing popular participation in an individual case to facilitate larger resistance to the policies and practices of state actors—this Article argues that community bail funds have the potential to change how local criminal justice systems operate on the ground, shifting and shaping political and constitutional understandings of the institution of money bail. Community bail funds give a voice to populations who rarely have a say in how criminal justice is administered, especially poor people of color. And the study of bail funds helps point toward other ways in which bottom-up public participation can help create a criminal justice system that is truly responsive to the communities that it is ultimately supposed to serve.
News Article: Bryce Covert, Trump wants to cut off poor people’s legal lifeline, Think Progress (Apr. 6, 2017).
Article: Mel Gonzalez, Litigating Money Bail Away: A Dim Future for the Status of the Poor Under the 14 Amendment (March 3, 2017). [submitted for SSRN]
This essay is the first to analyze the possibility of ongoing litigation around bail reform to resurface 14th amendment jurisprudence regarding the status of the poor. Fifty years after Professor Caleb Foote predicted the coming constitutional crisis arising from the injustices generated by our financially based system of pretrial release—money bail—the underlying constitutional issues may soon finally reach the highest court in the land. As recent scholarship demonstrates, however, current Supreme Court jurisprudence may not look favorably at those petitioners who wish to expand Fourteenth Amendment protections to the indigent. Worse yet, precisely as these issues are resurfacing, the court is likely on the heels of a significant movement toward the right—producing a court ideologically inclined to be deaf to increasingly audible concerns in support of the poor.
In this essay, first, I contextualize the current bail system, drawing on criminal justice and social science research, to reveal a dim picture of the inequities it produces. I then overview the growing movement for bail reform, focusing on the recent package of lawsuits brought by Equal Justice Under Law in states across the country. Then I assess the constitutional analysis marshaled by these lawsuits, supplementing their claims with my own additional synthesis of evolving jurisprudence, and evaluating their likelihood of success. I argue that given existing jurisprudence, petitioners will have to seek heightened judicial scrutiny in order to push the Court to render the bail system unconstitutional. To attain the Court’s heightened scrutiny, petitioners will have to compel the Court to address wealth as the grounds for suspect class determination. Finally, I extend my analysis to the potential positions that a new and more conservative court under President Trump may take regarding the Fourteenth Amendment jurisprudence analyzed in the prior section.
Article: Meredith S. Simons, Giving Vulnerable Students Their Due: Implementing Due Process Protections for Students Referred from Schools to the Justice System, 66 Duke L.J. 943 (2017).
There are two primary ways that schools can funnel children into the “school-to-prison pipeline.” The first is by simply removing children from school via expulsions and suspensions, which increase students’ chances of dropping out and getting in trouble with the law. The Supreme Court, recognizing the serious consequences of being forced out of school, has held that expulsions and long-term suspensions constitute deprivations of students’ property interest in their educations and liberty interest in their reputations. Thus, schools seeking to expel or suspend students must provide them with basic due process protections. But schools can also refer students directly to the justice system by having police officers arrest students or issue citations at school. Under current law, these students are not entitled to any due process protections at the point of arrest or referral.
This Note argues that the absence of due process protections for students who are arrested or referred to the justice system at school is incompatible with the Supreme Court’s procedural due process jurisprudence in general and its decision in Goss v. Lopez in particular. The same property and liberty interests that the Court identified as worthy of protection in Goss are implicated by in-school arrests and referrals. Therefore, school administrators who intend to have a child arrested or referred to the justice system should be required to provide students with oral notice of the accusation against them and an opportunity to respond. After an arrest or referral, the school should provide students and their parents with written notice of the arrest or referral and the rationale for the action. These measures will not unduly burden administrators or schools, but they will provide meaningful protections for students.
News Article: Shaila Dewan & Andrew W. Lehren, “After a Crime, the Price of a Second Chance,” N.Y. Times, Dec. 12,2016.
Article: Norrinda Brown Hayat, “Section 8 Is the New N-Word: Policing Integration in the Age of Black Mobility,” 51 Wash. U. J. L. & Pol’y 061 (2016).
This Article addresses the concept of black mobility within the context of Section 8 housing vouchers. Hayat explores the rise of racially coded language and its impact on racially discriminatory housing measures, highlighting the intersectionality between narratives of black criminality and the implicit biases of Section 8 proponents. Hayat argues for eradication of Section 8 enforcement schemes and facially race-neutral policies to promote the elimination of hyper-segregated neighborhoods.