Sekhon, Nirej, Dangerous Warrants, Washington Law Review, Vol. 93, (2018) [Abstract below]
The Supreme Court has cast judicial warrants as the Fourth Amendment gold standard for regulating police discretion. It has embraced a “warrant preference” on the premise that requiring police to obtain advance judicial approval for searches and seizures encourages accurate identification of evidence and suspects while minimizing interference with constitutional rights. The Court and commentators have overlooked the fact that most outstanding warrants do none of these things. Most outstanding warrants are what this article terms “non-compliance warrants”: summarily issued arrest warrants for failures to comply with a court or police order. State and local courts are profligate in issuing such warrants for minor offenses. For example, the Department of Justice found that the municipal court in Ferguson, Missouri issued one warrant for every two of its residents. When issued as wantonly as this, warrants are dangerous because they generate police discretion rather than restrain it. Nonetheless, the Supreme Court has, most recently in Utah v. Strieff, treated non-compliance warrants as if no different from the traditional warrants that gave rise to the Fourth Amendment warrant preference.
This article argues that non-compliance warrants pose unique dangers, constitutional and otherwise. Non-compliance warrants create powerful incentives for the police to conduct unconstitutional stops, particularly in poor and minority neighborhoods. Their enforcement also generates race and class feedback loops. Outstanding warrants beget arrests and arrests beget more warrants. Over time, this dynamic amplifies race and class disparities in criminal justice. The article concludes by prescribing a Fourth Amendment remedy to deter unconstitutional warrant checks. More importantly, the article identifies steps state and local courts might take to stem the continued proliferation of non-compliance warrants.
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.”]
Marshall Stienbaum, The Tax Debate We Need, Jacobin, October 20, 2017. [“Progressive taxation curbs the power of the wealthy – and that’s exactly why the Right hates it.”]
Taylor McNeil, Mathematics of Inequality, Tufts Now, October 28, 2017. [“Boghosian runs the numbers and shows that without redistribution of wealth, the rich get richer and everyone else gets poorer.”]
Louis S. Rulli, Seizing Family Homes from the Innocent: Can the Eighth Amendment Protect Minorities and the Poor from Excessive Punishment in Civil Forfeiture?, 19:5 Univ. Pen. L. Rev. 1112, (2017).
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 ham (if any) to the community caused by the offending conduct; and (5) the consequences of forfeiture of the property owner.
Tracy Jan, America’s affordable-housing stock dropped by 60 percent from 2010 to 2016,The Washington Post, October 23, 2017. [“The number of apartments deemed affordable for very low-income families across the United States fell by more than 60 percent between 2010 and 2016”]
Michelle Jackson, David B. Grusky, The Big Picture: Unequal America, Public Books, October 24, 2017. [“[The] 12th installment of “The Big Picture” a public symposium on what’s at stake in Trump’s America…”]
Timothy Williams, Courts Sidestep the Law, and South Carolina’s Poor Go to Jail, New York Time, October 12, 2017. [“One homeless man has been arrested or cited 270 time on the same charge…”]
John S. Rosenberg, Mastering the “Hidden Curriculum”, Harvard Magazine, November 2017. [“How some colleges help first-generation and low income students succeed”]