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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.UPDATE: Court recognizes racial discrimination in Foster, raises procedural concerns
By Matt Johnson Associate Editor, Vol. 21 The Supreme Court listened to oral arguments on Monday, November 2 for Foster v. Chatman, a case this author looked at in more detail in a previous piece. The case centers around Timothy Tyrone Foster, an African-American man who was…One person, one vote? The Supreme Court considers in Evenwel v. Abbott
By Tom Topping Associate Editor, Vol. 21 “One person, one vote,” a longstanding principle upon which our legislative districts are drawn, is under fire in a case currently pending before the Supreme Court. In Evenwel v. Abbott, the petitioners attack Texas’s policy of drawing state-level legislative districts in…Should ethnicity play a role in determining tort damages? (Part I)
By Amy Luong Associate Editor, Vol. 21 In this three-part series, the author provides the following: Part I – Background of how one jurisdiction handles this question; Part II – background of this issue in another jurisdiction; Part III – comparison of the two jurisdictions, examining the question that…COMMENT: Resolving the 7th Circuit’s Split on Bringing Class-Of-One Equal Protection Claims
By Jacob Hogg Associate Editor, Vol. 20 The Equal Protection Clause of the Fourteenth Amendment is one of the most celebrated and discussed topics in Constitutional Law. This clause states “No State shall [. . .] deny to any person within its jurisdiction the equal protection of the laws.”…COMMENT: It’s High Time for the Defense Bar to Bring Race-Based Equal Protection Challenges to Federal Cannabis Scheduling
By Reid Murdoch Associate Editor, Vol. 20 Online Publications Editor, Vol. 21 Last fall, U.S. District Court Judge Kimberly J. Mueller held a rarely granted evidentiary hearing on the constitutionality of designating cannabis as a Schedule I Controlled Substance.[1] Defendant Brian Pickard, through his attorneys, has…Supreme Court Allows Strict Texas Voter ID Law
By: Lauren Tortorella, Associate Editor Vol. 20 On October 18, the Supreme Court issued an order allowing Texas to use its strict voter ID law for the November election. The 2011 law requires voters to present a photo ID before voting at the polls. Some estimate this law will prevent…Court strikes down Virginia discriminatory congressional map
A federal court in Virginia struck down the state’s congressional map on Tuesday, October 7, 2014. The panel found that the state legislature’s decision to pack African Americans into the 3rd Congressional District, a district controlled by Democrats, was unconstitutional because it was motivated solely by race – a violation…The Right to Free Exercise of Religion in Prisons: How Courts Should Determine Sincerity of Religious Belief Under RLUIPA
Religion plays a vital role in the daily lives of many prisoners. For incarcerated persons, a connection to the divine can provide comfort during periods of isolation from their family and community. From a policy perspective, spiritual development and religious practice promote rehabilitation and reduce recidivism in inmates. While prisoners forfeit many of their civil liberties, Congress has ensured that religious exercise is not among them. As Congress enhanced religious freedom protections for prisoners, prison facilities became increasingly concerned that prisoners would feign religiosity to gain certain religious accommodations. To counter this concern, prison facilities conditioned accommodations on the sincerity of an inmate’s religious belief. Some facilities, however, instituted problematic methods for determining sincerity of religious belief, such as requiring physical evidence of doctrinal adherence or removing lapsing prisoners from religious accommodations.The Court Loses its Way with the Global Positioning System: United States v. Jones Retreats to the “Classic Trespassory Search”
This Article analyzes United States v. Jones, in which the Supreme Court considered whether government placement of a global positioning system (GPS) device on a vehicle to follow a person’s movements constituted a Fourth Amendment “search.” The Jones Court ruled that two distinct definitions existed for a Fourth Amendment “search.” In addition to Katz v. United States’s reasonable-expectation-of-privacy standard, which the Court had used exclusively for over four decades, the Court recognized a second kind of search that it called a “classic trespassory search.” The second kind of search occurs when officials physically trespass or intrude upon a constitutionally protected area in order to obtain information. This work examines the concerns created by Jones’s ruling. This Article asserts that, by emphasizing property rights in bringing back the decades-old physical trespass test, Jones potentially undermined the Katz standard. Further, Jones added an inquiry into motivation by asking if the government committed the intrusion to obtain information, thus creating a subjective inquiry that is inconsistent with much of Fourth Amendment doctrine. Finally, in its attempt to distinguish its facts from earlier vehicle-tracking cases, the Court created a loophole in Fourth Amendment application that law enforcement could exploit in the future.
