Volume 69, Number 7 – April 2020

Fees, Fines, Bail, and the Destitution Pipeline
Brandon L. Garrett, Sara S. Greene & Marin K. Levy
PDF

Articles

Toward a Demosprudence of Poverty
Monica Bell, Stephanie Garlock & Alexander Nabavi-Noori
PDF

This Article describes the rift between a due-process-focused jurisprudence on legal–financial obligations—the centerpiece of the current fight against criminalization of poverty—and the substantive and structural problems of poverty criminalization. It argues that judges can help address this disconnect while still operating within the scope of their authority by engaging in a demosprudence of poverty—“a democracy-enhancing jurisprudence” that actively seeks to learn from poor people themselves and movements for economic justice. This Article builds from demosprudential theory to offer guidance for judges in their reason-giving, rulemaking, and courtroom management practices.

Beyond Graduation: Economic Sanctions and Structural Reform
Beth A. Colgan
PDF

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.

Driven to Failure: An Empirical Analysis of Driver’s License Suspension in North Carolina
William E. Crozier & Brandon L. Garrett
PDF

A person’s interest in a driver’s license is “substantial,” and as the U.S. Supreme Court has observed, the suspension of a license by the state can result in “inconvenience and economic hardship suffered,” including because a license may be “essential in the pursuit of a livelihood.” However, forty-four U.S. states currently require indefinite suspension of driver’s licenses for non-driving-related reasons, such as failure to appear in court or pay fines for traffic infractions. There are no systematic, peer-reviewed analyses of individual-level or county-level data regarding such suspensions. This study describes North Carolina’s population of suspended drivers and assesses how driver’s license suspension statutes operate relative to geography, race, and poverty level. First, it analyzes four decades of active-suspension data in North Carolina and finds over 1,225,000 active suspensions for failures to appear or pay traffic fines, amounting to one in seven adult drivers in the state. Second, it compares these data to county-population data; county-level traffic-stop data, collected as required by statute in North Carolina; and county-level data on the volume and composition of traffic court dockets. This study reveals that driver’s license suspensions are not associated with either the volume of traffic stops or the size of the traffic court docket. In contrast, we find that black and Latinx people are overrepresented relative to the population. Linear mixed-level modeling regression analyses demonstrate that the population of white people below the poverty line and black people above the poverty line are most strongly associated with more suspensions. Finally, this Article explores implications of these results for efforts to reconsider the imposition of driver’s license suspensions for non-driving-related reasons. These patterns raise constitutional concerns and practical challenges for policy efforts to undo such large-scale suspension of driving privileges.

Detention by Any Other Name
Sandra G. Mayson
PDF

An unaffordable bail requirement has precisely the same effect as an order of pretrial detention: the accused person is jailed pending trial. It follows as a logical matter that an order requiring an unaffordable bail bond as a condition of release should be subject to the same substantive and procedural protections as an order denying bail altogether. Yet this has not been the practice.

This Article lays out the logical and legal case for the proposition that an order that functionally imposes detention must be treated as an order of detention. It addresses counterarguments and complexities, including both empirical and normative ambiguity in the concept of “unaffordable” bail. It explains in practical terms what it would entail for a court system to treat unaffordable bail as a detention order. One hurdle is that both legal and policy standards for pretrial detention are currently in flux. Recognizing unaffordable bail as a detention order foregrounds the question of when pretrial detention is justified. This is the key question the bail reform movement must now confront.

Volume 69, Number 7 – April 2020

Fees, Fines, Bail, and the Destitution Pipeline
Brandon L. Garrett, Sara S. Greene & Marin K. Levy
PDF

Articles

Toward a Demosprudence of Poverty
Monica Bell, Stephanie Garlock & Alexander Nabavi-Noori
PDF

This Article describes the rift between a due-process-focused jurisprudence on legal–financial obligations—the centerpiece of the current fight against criminalization of poverty—and the substantive and structural problems of poverty criminalization. It argues that judges can help address this disconnect while still operating within the scope of their authority by engaging in a demosprudence of poverty—“a democracy-enhancing jurisprudence” that actively seeks to learn from poor people themselves and movements for economic justice. This Article builds from demosprudential theory to offer guidance for judges in their reason-giving, rulemaking, and courtroom management practices.

Beyond Graduation: Economic Sanctions and Structural Reform
Beth A. Colgan
PDF

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.

Driven to Failure: An Empirical Analysis of Driver’s License Suspension in North Carolina
William E. Crozier & Brandon L. Garrett
PDF

A person’s interest in a driver’s license is “substantial,” and as the U.S. Supreme Court has observed, the suspension of a license by the state can result in “inconvenience and economic hardship suffered,” including because a license may be “essential in the pursuit of a livelihood.” However, forty-four U.S. states currently require indefinite suspension of driver’s licenses for non-driving-related reasons, such as failure to appear in court or pay fines for traffic infractions. There are no systematic, peer-reviewed analyses of individual-level or county-level data regarding such suspensions. This study describes North Carolina’s population of suspended drivers and assesses how driver’s license suspension statutes operate relative to geography, race, and poverty level. First, it analyzes four decades of active-suspension data in North Carolina and finds over 1,225,000 active suspensions for failures to appear or pay traffic fines, amounting to one in seven adult drivers in the state. Second, it compares these data to county-population data; county-level traffic-stop data, collected as required by statute in North Carolina; and county-level data on the volume and composition of traffic court dockets. This study reveals that driver’s license suspensions are not associated with either the volume of traffic stops or the size of the traffic court docket. In contrast, we find that black and Latinx people are overrepresented relative to the population. Linear mixed-level modeling regression analyses demonstrate that the population of white people below the poverty line and black people above the poverty line are most strongly associated with more suspensions. Finally, this Article explores implications of these results for efforts to reconsider the imposition of driver’s license suspensions for non-driving-related reasons. These patterns raise constitutional concerns and practical challenges for policy efforts to undo such large-scale suspension of driving privileges.

Detention by Any Other Name
Sandra G. Mayson
PDF

An unaffordable bail requirement has precisely the same effect as an order of pretrial detention: the accused person is jailed pending trial. It follows as a logical matter that an order requiring an unaffordable bail bond as a condition of release should be subject to the same substantive and procedural protections as an order denying bail altogether. Yet this has not been the practice.

This Article lays out the logical and legal case for the proposition that an order that functionally imposes detention must be treated as an order of detention. It addresses counterarguments and complexities, including both empirical and normative ambiguity in the concept of “unaffordable” bail. It explains in practical terms what it would entail for a court system to treat unaffordable bail as a detention order. One hurdle is that both legal and policy standards for pretrial detention are currently in flux. Recognizing unaffordable bail as a detention order foregrounds the question of when pretrial detention is justified. This is the key question the bail reform movement must now confront.