As local governments increasingly rely on fines, fees, and harsh collection practices to conduct their operations, federal courts should take a more aggressive role in intervening when these practices pose “irreparable harm” to poor Americans, according to a study in the Harvard Law Review.
Many of the 450,000 individuals in local jails across America are there simply “because they are poor,” and cannot afford to pay court costs or raise bail—setting up what the study called a “cycle” of repeated punishment, said the study.
“Some remain in jail for days or weeks while waiting to see a judge,” the study said. “Some remain there for months because courts did not take their indigence into account when setting or reviewing bail.
“If they plead guilty in order to leave jail, this often triggers a new set of fines and fees that they cannot afford to pay. Failure to pay results in a new arrest. The cycle starts anew.”
Although class action suits challenging these practices have been filed, the federal government is often reluctant to step in because of a 1971 Supreme Court ruling in Younger v Harris that enjoins federal courts from disrupting criminal proceedings through injunctions or declaratory judgments.
The so-called “Younger abstention” has been regarded as a check against federal authorities encroaching on states’ prerogatives.
But the study argues that the abstention should be ignored when litigants challenge “structural or systemic constitutional violations.”
“When a state is engaging in a structural or systemic constitutional violation, federalism interests diminish and the risk of irreparable harm is grave,” the study argued.
The study by Fred O. Smith Jr., of the Emory University School of Law, entitled, Abstention in the Time of Ferguson, reviews the history of federal lawsuits against state and local governments who criminalize poverty, and the legal barriers to federal intervention in corrupted justice systems.
The criminalization of poverty is highlighted in the study’s reference to The Ferguson Report. In 2014, after the killing of an unarmed teenager by a police officer, the Department of Justice issued a critical report of the town’s criminal justice practices, such as “onerous fees, fines, and collection practices.”
In some cases, government invocations of the Younger abstention principle have kept the underlying merits of the case from being seen by federal courts, the study noted. Conversely, district courts have rejected abstention in cases involving rigid bail schedules, pecuniary-interest schemes, and post-judgement debtors’ prisons.
Three legal models are identified as means of challenging state and local justice systems. One approach is the policy-or-custom approach. If a corrupt policy or custom can be established in a suit, the litigants are likely to have the case go their way. However, limited this strategy may be, in the sphere of municipal liability, it nevertheless offers a set of accepted legal principles “aimed at determining when a government’s policy caused a violation, as distinguished by a rogue one-off.”
A second approach is termed “pattern or practice.” The Attorney General, under the 1964 Civil Rights Act, may bring claims “to end a ‘pattern or practice’ of unlawful discrimination. The class action framework is a third approach.
“Litigants in leading cases challenging criminalization tend to plead all three paradigms,” the study said. “They allege unconstitutional ‘polic[ies], pattern[s] and practice[s], and eligibility for class certification.”
These cases have gone on to see courts issue injunctive relief, declaratory relief, and consent decrees, resulting in significant reductions in the jail populations of Harris County, Texas, and New Orleans, Louisiana.
Despite the Younger abstention doctrine, federal courts have a history of intervening in states’ affairs to stop or prevent irreparable harm, particularly in cases where “an underlying state process provides an inadequate means to raise federal constitutional claims.”
According to the study, there are two reasons for waiving the abstention doctrine, structural and systemic errors in a state’s criminal justice system. A structural flaw is one that influences a judicial process’s basic framework in incalculable ways, such as denial of counsel during a critical period or a judge’s financial interest in an outcome.
Systemic flaws are errors that routinely impacts litigants by way of a policy, pattern or practice, “or other class wide common set of violations.”
“When a state is engaging in a structural or systemic constitutional violation, federalism interests diminish and the risk of irreparable harm is grave.”
The author argues that protecting against irreparable harm when other remedies are lacking is a core function of the federal judiciary and should not be obstructed by Younger abstention.
Legally, the heart of the question lies in the following: “How should federal courts balance the vindication of federal constitutional rights with respect for states’ ability to correct their own constitutional violations?”
The article’s formulated “exception to Younger abstention” doesn’t demand a doctrinal revision from the Supreme Court, the study said, noting that district courts are capable of implementing the structural and systemic exceptions.
Some have already begun to do so, explicitly or implicitly, and to varying degrees, it added.
Those impacted by the criminalization of poverty are calling out and resisting systems that exploit them. What remains to be seen is, as the author proposes, “whether ‘Our Federalism’ is capacious enough to hear them.”
A copy of the full report can be downloaded here.
This summary was prepared by TCR News Intern John Ramsey. Readers’ comments are welcome.