Beyond Graduation: Economic Sanctions and Structural Reform

In recent years, increased attention is being paid to the dangers of imposing economic sanctions in felony, misdemeanor, juvenile, municipal, and traffic courts because the imposition of unmanageable fines, fees, surcharges, restitution, and forfeitures can be financially devastating for people and their families. One reform that has gained traction is the graduation of economic sanctions to account for their financial effect. To date, considerations of the efficacy of graduated sanctions focus on the individual benefits that would accrue from a properly designed graduation mechanism. In other words, the value of graduation is measured by comparing it to the serious negative consequences for individuals that may result from the imposition of ungraduated sanctions. This Article uses abolitionism as a heuristic because it changes the baseline, measuring graduation against a fundamentally different set of goals: the dismantling of the carceral state and its replacement with systems of “transformative justice.” Doing so indicates that graduation is in some ways consistent with and in other ways in opposition to structural reforms of criminal legal systems writ large. This Article uses those insights to identify potential complementary reforms designed to bring graduation in better alignment with structural reform efforts

Wealth-Based Penal Disenfranchisement

This Article offers the first comprehensive examination of the way in which the inability to pay economic sanctions-fines, fees, surcharges, and restitution-may prevent people of limited means from voting. The Supreme Court has upheld the constitutionality of penal disenfranchisement upon conviction, and all but two states revoke the right to vote for at least some offenses. The remaining jurisdictions allow for reenfranchisement for most or all offenses under certain conditions. One often overlooked condition is payment of economic sanctions regardless of whether the would-be voter has the ability to pay before an election registration deadline. The scope of wealth-based penal disenfranchisement is grossly underestimated, with commentators typically stating that nine states sanction such practices. Through an in- depth examination of a tangle of statutes, administrative rules, and policies related to elections, clemency, parole, and probation, as well as responses from public disclosure requests and discussions with elections and corrections officials and other relevant actors, this Article reveals that wealth-based penal disenfranchisement is authorized in forty-eight states and the District of Columbia. After describing the mechanisms for wealth-based penal disenfranchisement, this Article offers a doctrinal intervention for dismantling them. There has been limited, and to date unsuccessful, litigation challenging these practices as violative of the Fourteenth Amendment\u27s equal protection and due process clauses. Because voting eligibility is stripped of its fundamental nature for those convicted of a crime, wealth-based penal disenfranchisement has been subject to the lowest level of scrutiny, rational basis review, leading lower courts to uphold the practice. This Article posits that these courts have approached the validity of wealth-based penal disenfranchisement through the wrong frame-the right to vote when the proper frame is through the lens of punishment. This Article examines a line of cases in which the Court restricted governmental action that would result in disparate treatment between rich and poor in criminal justice practices, juxtaposing the cases against the Court\u27s treatment of wealth-based discrimination in the Fourteenth Amendment doctrine and the constitutional relevance of indigency in the criminal justice system broadly. Doing so supports the conclusion that the Court has departed from the traditional tiers of scrutiny. The resulting test operates as a flat prohibition against the use of the government\u27s prosecutorial power in ways that effectively punish one\u27s financial circumstances unless no other alternative response could satisfy the government\u27s interest in punishing the disenfranchising offense. Because such alternatives are available, wealth-based penal disenfranchisement would violate the Fourteenth Amendment under this approach

The Burdens of the Excessive Fines Clause

A key component is missing from the Eighth Amendment’s Excessive Fines Clause doctrine: Who has the burden of proof? This question—which has been essentially ignored by both federal and state courts—is not just a second-order problem. Rather, the assignment of burdens of proof is essential to the Clause’s enforcement, making it harder—or easier—for the government to abuse the revenue-generating capacity of economic sanctions in ways that can entrench poverty, particularly in heavily policed communities of color. This Article takes on this question by first sorting through a morass within the U.S. Supreme Court’s due process doctrine as it relates to assessing the fundamental fairness of procedural practices, including the assignment of burdens of proof. After offering a framework that reconciles the doctrine, it applies that framework to the excessive fines context by breaking the “burden of proof” into four component parts: (1) the burden to raise the excessive fines claim, (2) the burden of producing evidence relevant to that claim, (3) the burden of persuading the decision maker as to the result, and (4) the standard of proof to be employed in that determination. While the government and private interests at stake remain constant across these various burdens, disentangling them allows a more exacting inquiry. In particular, it allows for an examination of how lawmakers have crafted related processes and structures—such as the refusal to provide counsel or the vast array of direct and collateral consequences attached to both non-payment and conviction—that make it more likely that abuses of power will occur absent the check on authority that burdens of proof can help provide

Fines, fees, and forfeiture

Objective to analyze the imposition and collections of fines fees and forfeitures according to the legislation of the United States of America. Methods dialectical approach to the cognition of social phenomena allowing to analyze them in the historical development and functioning in the context of a set of objective and subjective factors which determined the choice of the following research methods formallogical comparativelegal and sociological. Results the use of fines fees and forfeitures has expanded significantly in recent years as lawmakers have sought to fund criminal justice systems without raising taxes. Concerns are growing however that inadequately designed systems for the use of such economic sanctions have problematic policy outcomes such as the distortion of criminal justice priorities exacerbation of financial vulnerability of people living at or near poverty increased crime jail overcrowding and even decreased revenue. In addition the imposition and collections of fines fees and forfeitures in many jurisdictions are arguably unconstitutional and therefore create the risk of often costly litigation. This article provides an overview of those policy and constitutional problems and provides several concrete solutions for reforming the use of fines fees and forfeitures. Scientific novelty for the first time the article substantiates the necessity to eliminate poverty penalties and other policies that negatively impact ability to pay. It is proposed to create systems for meaningful consideration of financial effect of fines fees and forfeitures to develop nonincarcerative alternative sanctions to restrict the use of fines fees and forfeitures in cases involving juveniles to ensure that criminal justice actors are insulated from the pressure to generate revenue and from the benefits of revenue produced from those economic sanctions. Practical significance the main provisions and conclusions of the article can be used in scientific and educational activities when considering the issues related to imposition of fines fees and forfeitures

Lessons from Ferguson on Individual Defense Representation as a Tool of Systemic Reform

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

Public Health and Safety Consequences of Denying Access to Justice for Victims of Prison Staff Sexual Misconduct

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