Category Archives: Criminalization of Poverty

New Article: “Rehabilitation or Revolving Door: How Parole Is a Trap for Those in Poverty”

New Article: Brittany Deitch, Rehabilitation or Revolving Door: How Parole Is a Trap for Those in Poverty, Georgetown Law Journal Online. Abstract below:

On any given day, one in four incarcerated persons in the United States is locked up for a technical violation of their community supervision. The United States has thus created a mass incarceration problem and mass supervision problem that fuel each other through the parole system. When an individual is fortunate enough to be released from prison and permitted to begin reentry into society through parole, the paroling authority often imposes numerous conditions of release. These myriad conditions vary widely, but many parolees are required to comply with exceedingly long lists of requirements, many of them financial. If a parolee violates any of these conditions, a revocation of parole occurs and the parolee is once again confined. This revolving door between prison and parole is all too common, with nearly half of all parole terminations resulting in the return of the parolee to prison, rather than successful completion of the sentence. In addition to the onerousness of the imposed conditions, the financial cost of compliance with parole conditions contributes to a host of the technical violations that further the United States’ mass incarceration problem. This Article argues that parole in its current form entraps those in poverty and must be reformed with particular focus on easing the financial burden of parole compliance.

New Article: A Prosecutorial Solution to the Criminalization of Homelessness

New Article: Andrew I. Lief, A Prosecutorial Solution to the Criminalization of Homelessness, 169 U. Pa. L. Rev. 1971 (2021).

New Article: Digital Barriers to Economic Justice in the Wake of COVID-19

New Article: Michele E. Gilman & Mary Madden, Digital Barriers to Economic Justice in the Wake of COVID-19, Data & Society, April 21, 2021. Abstract below:

This primer highlights major barriers to economic justice created or magnified by data-centric technologies in the wake of the coronavirus pandemic. Specifically, there are three major trends related to data-centric technologies that are undermining the current and future economic stability for marginalized communities:
1) Collapse of benefits automation, particularly with regard to unemployment insurance
2) Expanded workplace and school surveillance
3) Digital profiling of economic distress

There has been little discussion of how these trends will heighten existing economic inequalities as the nation attempts to rebuild post-pandemic. The primer aims to fill this gap through a conception of data justice, in which technology serves to empower people rather than to oppress them. Further, it provides suggestions for reform so that technology works for people, rather than against them, as the nation emerges from the grip of the pandemic.

New Book: “Profit and Punishment: How America Criminalizes the Poor in the Name of Justice”

9781250274656New Book: Tony Messenger, Profit and Punishment: How America Criminalizes the Poor in the Name of Justice (2021). Overview below:

In Profit and Punishment, a Pulitzer Prize-winning journalist exposes the tragedy of modern-day debtors prisons, and how they destroy the lives of poor Americans swept up in a system designed to penalize the most impoverished.

“Intimate, raw, and utterly scathing” — Heather Ann Thompson, Pulitzer Prize-winning author of Blood in the Water
“Crucial evidence that the justice system is broken and has to be fixed. Please read this book.” —James Patterson, #1 New York Times bestselling author

As a columnist for the St. Louis Post-Dispatch, Tony Messenger has spent years in county and municipal courthouses documenting how poor Americans are convicted of minor crimes and then saddled with exorbitant fines and fees. If they are unable to pay, they are often sent to prison, where they are then charged a pay-to-stay bill, in a cycle that soon creates a mountain of debt that can take years to pay off. These insidious penalties are used to raise money for broken local and state budgets, often overseen by for-profit companies, and it is one of the central issues of the criminal justice reform movement.

In the tradition of Evicted and The New Jim Crow, Messenger has written a call to arms, shining a light on a two-tiered system invisible to most Americans. He introduces readers to three single mothers caught up in this system: living in poverty in Missouri, Oklahoma, and South Carolina, whose lives are upended when minor offenses become monumental financial and personal catastrophes. As these women struggle to clear their debt and move on with their lives, readers meet the dogged civil rights advocates and lawmakers fighting by their side to create a more equitable and fair court of justice. In this remarkable feat of reporting, Tony Messenger exposes injustice that is agonizing and infuriating in its mundane cruelty, as he champions the rights and dignity of some of the most vulnerable Americans.

Related op-ed by the book’s author here.

New Article: Wealth-Based Equal Process and Cash Bail

New Article: Liza Batkin, Wealth-Based Equal Process and Cash Bail, 96 N.Y.U. L. Rev. 1549 (2021). Abstract below:

Though indigency is not a suspect class, the Supreme Court has repeatedly applied heightened scrutiny to laws that deprive low-income people of certain rights they can’t afford. It has done this through a makeshift doctrine that combines the principles of Equal Protection and Due Process. But the absence of a generalizable rule behind what this Note refers to as “wealth-based equal process” leaves the Court’s few constitutional protections for low-income people vulnerable to erosion by conservative Justices. This threat looms especially large as recent litigation draws on that doctrine to challenge the unfair treatment of indigent people in the criminal justice system. This Note attempts to shore up wealth-based equal process doctrine by proposing a general principle: Courts must apply heightened scrutiny when the government, by putting a price on a fundamental right that only the government can fulfill, entirely deprives an indigent person of that right. The Note then applies this principle to cash bail, revealing that the pretrial detention of indigent defend- ants lies at the heart of this doctrine and requires heightened scrutiny.

New Jotwell Review: Court Personalities and Impoverished Parents

New Jotwell Review: Ezra Rosser, Court Personalities and Impoverished Parents, Jotwell, Nov. 19, 2021 (reviewing Tonya L. Brito, Producing Justice in Poor People’s Courts: Four Models of State Legal Actors, 24 Lewis & Clark L. Rev. 145 (2020))

I hope this review convinces people (a) that Brito’s article is great, and (b) it is worth reading!

New Article: Criminalizing Property Rights: How Crime-Free Housing Ordinances Violate the Fifth Amendment

New Article: Laura Flint, Criminalizing Property Rights: How Crime-Free Housing Ordinances Violate the Fifth Amendment, 70 Emory L. J. 1369 (2021). Abstract Below:

Crime-free housing ordinances allow municipalities to force private landlords to evict tenants who have committed crimes or allowed a guest who has committed a crime into their home, regardless of the tenant’s knowledge. These ordinances have proliferated throughout the country since the turn of the century and pose interesting questions about landlord and tenant rights under the Constitution. This Comment explores a new strategy for landlords and tenants attempting to confront these ordinances—challenging them under the Fifth Amendment. The Supreme Court has recognized two types of takings that are due just compensation under the Fifth Amendment: possessory and regulatory takings. This Comment argues that compulsory evictions, as mandated by crime-free housing ordinances, qualify as possessory and regulatory takings for tenants, but not for landlords. While the landlord’s property rights have only been circumscribed because he or she has to find a new tenant and has lost the revenue from the original tenant, the tenant loses all of his or her property rights in the tenant’s leasehold estate after eviction under a crime-free housing ordinance. Additionally, government actors may engage in physical invasions to effectuate the eviction and “total taking” of the property. The taking is for the public purpose of reducing and preventing crimes, and the tenant is owed just compensation under the Takings Clause. Compulsory evictions under crime-free housing ordinances are unconstitutional without just compensation under the Fifth Amendment.

New Article: Is This the Worst Place to Be Poor and Charged with a Federal Crime?

New Article: Charles Bethea, Is This the Worst Place to Be Poor and Charged with a Federal Crime? New Yorker (Nov. 5, 2021). By Line Below:

The Southern District of Georgia does remarkably little to provide for indigent defendants.

New Article: Creating “Criminals”: Homelessness in the Sunshine State

New Article: Karin Drucker, Creating “Criminals”: Homelessness in the Sunshine State, Harv. Civil Rights-Civil Liberties L. Rev. (2020). Abstract Below:

Criminalizing homelessness and poverty is an American tradition. Socalled “vagrancy laws,” which prohibited “vagrants,” “wander[ers,]” and “habitual loafers” from being in public, found their first big defeat in Papachristouv. City of Jacksonville. In that case, the Supreme Court struck down such laws as unconstitutionally vague. To this day, unhoused plaintiffs continue to challenge vagrancy-type laws on vagueness grounds. However, this case study from Sarasota, Florida—which draws on litigation history, legislative revisions, and enforcement data—reveals that vagueness doctrine has had perverse consequences for defendants charged under modern-day vagrancy laws. This Note begins with vagueness doctrine’s stated aims—reducing “arbitrary” police enforcement, reducing racial discrimination, and improving notice to defendants. Examining one jurisdiction in Florida, this Note shows that successful vagueness challenges have improved notice to possible defendants and constrained police ability to “arbitrarily” enforce the city’s ordinance. However, vagueness challenges have also led to unexpected results related to police power, racial discrimination, and the severe punishment that defendants receive. Vagueness challenges prompted Sarasota’s local leaders to rewrite its statute with increasingly detailed language. This “tailoring” of the law helped to give police enormous power to decide who will be found guilty, fined, and incarcerated. This Note also argues that courts’ use of vagueness doctrine to reduce racial discrimination is misplaced. Finally, the data show that the law was enforced almost entirely against unhoused people, whom it punished via substantial incarceration and fines. This Note reveals the aspirations of a doctrine and theorizes about its actual effects on both statutes and enforcement. It concludes that, in this jurisdiction, vagueness doctrine appears to accomplish some of its stated goals, but it also empowers police within a system that makes “criminals” of the region’s most vulnerable residents.

New Article: Intersectionality, Police Excessive Force, and Class

New Article: Frank Rudy Cooper, Intersectionality, Police Excessive Force, and Class, forthcoming G.W. L. Rev. Abstract below:

Recent uprisings over the failure to hold police officers responsible for killing civilians—from Ferguson, Missouri to nationwide George Floyd protests—show the importance of excessive force as a social problem. Some scholars have launched racial critiques of policing as resulting from explicit or implicit racial bias. This Essay is the first to demonstrate that an intersectional analysis of both race and class helps explain both aggressive policing and the Court’s permissive excessive force doctrine.

This Essay identifies several take-aways from intersectionality theory’s basic insight that unique senses of self-identity and unique stereotypes form at places where categories of identity meet. First, seemingly distinct identities, such as race, gender, class, and so on, mutually construct one another such that, for example, racial discourses both influence and are influenced by gender discourses. Second, the categories of identity correspond with systems of social power, such as racism, sexism, classism, and so on. Third, those systems also intersect with and mutually construct one another, resulting in interlocking hierarchies of identities. Fourth, an individual’s social location within those hierarchies interacts with social institutions, such as policing, in ways that exacerbate or ameliorate oppression. This Essay thus applies intersectionality theory to better understand how race and class come together to produce police excessive force.

This Essay’s new insight is to connect a scholarly literature on class that critiques the Western neoliberal economic order to the scholarly literature on police excessive force. Neoliberalism has at least these components: (1) economic deregulation; (2) emphasis on individual responsibility; (3) slashing welfare; and (4) expansion of punitive apparatuses. It has created a “centaur state,” which, like the mythological creature, is a comely human on top and a beast on the bottom. The centaur state is easy on the top of society through economic deregulation and emphasis on individual responsibility. However, neoliberalism’s economic deregulation and dismantling of the social safety net leaves behind a vulnerable population known as the “precariat.” The centaur state seeks to push most of the precariat into low-wage, low-security jobs through slashing welfare and to incapacitate the remainder by increasing incarceration. The neoliberal economic order’s need to incarcerate the precariat thus led to aggressive new forms of policing.

Three phenomena found by means of intersectional analysis of race and class help explain disparate policing of poor black and brown neighborhoods versus that in rich white neighborhoods. First, the post-Warren Court has cooperated with a neoliberally inspired politics of law and order by deregulating the police through, inter alia, permissive excessive force doctrine. Second, the “new policing”—aggressive intrusions based on predictive data to prevent rather than solve crime—applies the “warrior cop” mode in poor black and brown neighborhoods and the “guardian officer” mode in rich white neighborhoods. The warrior cop prioritizes certain versions of honor, duty, and resolve as a means of justifying righteous violence because they believe in the inevitability of evil. Third, the potential for excessive force that inheres in warrior policing is what enhances boundaries between “good” and “bad” neighborhoods, whites and certain racial minorities, and the rich and the poor. In light of these linkages and dichotomies, this Essay calls for further intersectional studies of policing that consider class as an equal factor with race (as well as other identities).