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Pretextual Sanctions, Contempt, and the Practical Limits of Bearden-Based Debtors’ Prison Litigation
At the time of this writing, recent events in Ferguson, Baltimore, New York City, and elsewhere have triggered quite justified social outrage at debtors’ prisons. Our country’s state and city courts keep scores of indigent people in jail for the crime of being poor, despite the Supreme Court’s clear prohibition on the practice. Skilled litigators and their journalist allies have seized on the moment to win victories in court and in the public eye, which prevent unconscionable bond and probation practices and try to reduce our burgeoning jail populations. Lost in the uproar, though, are the many ways that a savvy anti-defendant judge could insulate herself from corrective litigation, evade effective judicial oversight, and essentially perpetuate current debtors’ prisons by using pretextual sanctions and contempt orders to circumvent Bearden v. Georgia indigency determinations.Legal Aid’s Once and Future Role for Impacting the Criminalization of Poverty and the War on the Poor
Recent media coverage and advocacy efforts on behalf of individuals subjected to criminal sanctions as a result of their poverty status has resulted in increased attention on this nation’s troubled history of oppression and control of the poor and people of color. At the federal, state, and local levels, a growing number of policies create criminal sanctions for poverty-related circumstances. These, in turn, result in collateral consequences that unfairly affect those who lack the means to afford their criminal justice experience (i.e., processing costs, fees, and fines), or affect their ability to access employment, housing, or other basic services. These policies also disproportionately affect people of color, and the origins of many of these policies share a twisted history in decades of racial oppression and discrimination. In many respects, these criminal sanctions and collateral consequences lay on the surface of deep-seated social and economic ills that have been neglected, festering over decades and breaking out now in events over the past two years from Ferguson to Baltimore. Challenging these entrenched social and economic inequities will be necessary in order to produce real change for communities struggling against the criminalization of poverty. Legal challenges must be coordinated with community-based social movements emerging in these communities in order to confront the barriers to opportunity and structures that perpetuate inequities. Legal Aid programs have a historical grounding in this type of community-based impact advocacy work and are uniquely positioned to work together with community groups to bring about meaningful change.Making a Buck While Making a Difference
It is not right for children to die before their parents. It is not right for peaceful, unarmed citizens to die at the hands of the police. In my civil rights practice, I have met many mothers, fathers, and family members who are struggling to recover after a law enforcement officer caused the death of their loved one. Sure, they want fair compensation. But money does little to reduce their loss or make the grief more bearable. They often want to do something that will ensure that their loved one did not die in vain. They want to prevent other families from suffering the same loss. This Article will show that even without standing to seek injunctive relief, these plaintiffs can indeed secure significant reform. This Article will also share suggestions for the practitioner on how to litigate these cases economically and efficiently. Part I explores avenues for relief other than compensatory and punitive damages. Part II shares language to include in retainer agreements to encourage clients to share any settlement they reach with the public to increase awareness of police misconduct. Part III explains that researching local police policies and practices helps to inform where meaningful opportunities for reform exist. Part IV then provides examples of resolutions that require the officers involved and their supervisors to personally engage with the victims’ families or that commemorate victims in their respective communities. Finally, Part V reviews techniques for case selection, case theory, and working within a budget so the small office practitioner can make enough money to carry the work forward.Closing the Gap Between What is Lawful and What is Right in Police Use of Force Jurisprudence by Making Police Departments More Democratic Institutions
On August 9, 2014, Michael Brown was shot to death in Ferguson, Missouri, by police officer Darren Wilson. Members of the Ferguson community rose up in response. Protests demanding that police violence against African Americans cease and that accountability for police misconduct be addressed erupted across the country, and they have not subsided since. Incidents in Baltimore, Maryland; Chicago, Illinois; WallerCounty, Texas; and elsewhere have kept the movement alive. The mass media, the political elite, and the White middle class woke up to a reality that had been long known to communities of color – force is used disproportionately against people of color, and this has caused a breakdown in trust between the police and the communities they serve. There are many causes for this breakdown in trust. Police officers are the faces of a criminal justice system that has dramatically disproportionate negative effects based on race and economic status. Practices like stop-and-frisk and broken windows policing have put people of color in hostile contact with law enforcement on a daily basis. The imposition of excessive fines and court fees in some communities has created severe criminal consequences often for traffic or other minor offenses.Keynote Remarks: How the Criminalization of Poverty has Become Normalized in American Culture and Why You Should Care
The subject of my talk today is how the criminalization of poverty has become normalized in American culture and why you should care.The Ohio Model for Combatting Debtors’ Prisons
In 2013, the ACLU of Ohio released a report titled The Outskirts of Hope: How Ohio’s Debtors’ Prisons Are Ruining Lives and Costing Communities. The report exposed the blatantly unconstitutional practice in courts across Ohio of jailing people who were too poor to pay their court fines and fees, and along with our ongoing advocacy efforts, resulted in sweeping change across the state. This Essay looks at the destruction modern debtors’ prisons have on individuals, families, and communities and overviews the research, advocacy, and communications tools the ACLU of Ohio has used to successfully combat debtors’ prisons. The goal is to give an overview of the “Ohio Model” for combatting debtors’ prisons and to relay practical advice on launching similar campaigns in other states.Online Case Resolution Systems: Enhancing Access, Fairness, Accuracy, and Efficiency
Online case resolution (OCR) systems have the potential to dramatically increase access to our justice system. Part I introduces the concept of an OCR system, how it might work in practice, and its likely impact on courts and citizens. Part II argues that OCR systems can lower many of the barriers to going to court by reducing the need for face-to-face resolution of disputes; cutting the amount of time needed for hearings; mitigating litigant confusion and fear; allowing asynchronous scheduling that can accommodate work and child-care schedules; and offering a more reliable and easier-to-use means for litigants to voice their views. These advantages should especially benefit those of lower socioeconomic status, who often suffer disproportionality under the status quo. Part III contends that OCR systems need not compromise a judge’s or a prosecutor’s decision-making process but can actually enhance both. OCR systems can provide more, better, and easier-to-use information, and by removing a litigant’s appearance (race, gender, weight, etc.) from a judge’s consideration, can render outcomes less subject to implicit biases.Keynote Remarks
In communities across America today, from Ferguson, Missouri, to Flint, Michigan, too many people—especially young people and people of color—live trapped by the weight of poverty and injustice. They suffer the disparate impact of policies driven by, at best, benign neglect, and at worst, deliberate indifference. And they see how discrimination stacks the deck against them. So today, as we discuss the inequality that pervades our criminal justice system—a defining civil rights challenge of the 21st century—we must also acknowledge the broader inequalities we face in other segments of society. Because discrimination in so many areas—from the classroom, to the workforce, to the marketplace—perpetuates the inequality we see in our justice system. And for those already living paycheck-to-paycheck, a single incident—whether an arrest by the police or a fine by the court—can set off a downward spiral. It can lead to a cycle of profound problems that ruin lives and tear apart families. Problems like losing your health care, your job, your children, or your home. As someone who focuses on civil rights work and criminal justice reform, I see these problems every day. But today in America, I also see a country on the cusp of change. Across a wide range of political perspectives, policymakers and advocates have come together to bridge divides and support meaningful criminal justice reform. And I’m proud to say that this administration—and this Department of Justice—has made criminal justice reform a top priority. We believe that our country needs, and deserves, a criminal justice system that more effectively protects our communities, more fairly treats our people, and more prudently spends our resources. And we believe that no matter how deeply rooted and long-standing the injustices that underlie inequality in our criminal justice system—with clear thinking, hard work and collaboration—we can make real progress.How the E-Government Can Save Money by Building Bridges Across the Digital Divide
As government agencies and federal aid recipients begin to build a presence online, they must recognize that language accessibility is morally required, fiscally responsible, and compulsory under federal civil rights law. This Note explores statutes, federal policies, and case law that purport to protect the rights of limited English proficient (“LEP”) individuals in cyberspace. The Note suggests reforms, policies, and programs that should be adopted by federal aid recipients to ensure that LEP individuals have meaningful access to online services.Barriers to the Ballot Box: Implicit Bias and Voting Rights in the 21st Century
While much has been written regarding unconscious or “implicit bias” in other areas of law, there is a scarcity of scholarship examining how implicit bias impacts voting rights and how advocates can move courts to recognize evidence of implicit bias within the context of a voting rights claim. This Article aims to address that scarcity. After reviewing research on implicit bias, this Article examines how implicit bias might impact different stages of the electoral process. It then argues that “results test” claims under Section 2 of the Voting Rights Act (VRA) present an opportunity for plaintiffs to introduce evidence regarding implicit bias in the electoral process. In addition, this Article explores policy solutions to reduce the impact of implicit bias in elections.
