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Money and Punishment, Circa 2020 Money and Punishment, Circa 2020 The Arthur Liman Center for Public Interest Law at Yale Law School Fines & Fees Justice Center Policy Advocacy Clinic at UC Berkeley School of Law Money and Punishment, Circa 2020 Co-Editors Anna VanCleave Director, Arthur Liman Center for Public Interest Law at Yale Law School Brian Highsmith Senior Research Affiliate Arthur Liman Center for Public Interest Law at Yale Law School Judith Resnik Arthur Liman Professor of Law at Yale Law School Jeff Selbin Faculty Director and Clinical Law Professor, Policy Advocacy Clinic at UC Berkeley School of Law Lisa Foster Co-Director, Fines & Fees Justice Center Associate Editors Hannah Duncan, Yale Law School Class of 2021 Stephanie Garlock, Yale Law School Class of 2020 Molly Petchenik, Yale Law School Class of 2021 prepared in conjunction with the 23rd Annual Liman Colloquium Yale Law School, Fall 2020 The Editors appreciate the support of Arnold Ventures, the Vital Projects Fund, and Yale Law School’s Class Action Litigation Fund and its Robert H. Preiskel & Leon Silverman Fund Preface Money has a long history of being used as punishment, and punishment has a long history of being used discriminatorily and violently against communities of color. This volume surveys the many misuses of money as punishment and the range of efforts underway to undo the webs of fines, fees, assessments, charges, and surcharges that undergird so much of state and local funding. Whether in domains that are denominated “civil,” “criminal,” or “administrative,” and whether the needs are about law, health care, employment, housing, education, or safety services, racism intersects with the criminalization of poverty in all of life’s sectors to impose harms felt disproportionately by people of color. In the spring of 2020, the stark inequalities of the pandemic’s impact and of police killings sparked uprisings against the prevalence of state-based violence and of government failures. Those protests have underscored the urgent need for profound, sustainable transformations in government systems that have become all too familiar. This volume maps the structures that generate oppressive practices, the work underway to challenge the inequalities, and the range of proposals to seek lasting alterations of expectations and practices so as to shape a social and political order that is respectful of all individuals’ dignity, generative for communities, and provides a range of services to protect safety and well-being. What changes ought to be in focus is the subject of debate within this volume and beyond. For some, the goals are to abolish fees, end police funding, and redirect moneys to other institutions. Others believe that monetary sanctions, if levied in proportion to the offense and to the individual, are viable responses to be pursued. Also contested is the footprint of courts and the scope and nature of government-based services. This book is long because of the proliferation of materials on this subject and the goal of helping to bring together information from legal and public finance analyses. In the Table of Contents that follows, we provide a road map of the readings within each segment. We have ruthlessly pruned excerpts to make accessible the depth of research on these problems and the range of ambitions for transformative change; we include the original publication information for easy access to the full articles. This volume is the fourth in a series of co-edited, interrelated monographs focused on money as sanctions. In 2018, the volume Who Pays? Fines, Fees, Bail, and the Cost of Courts mapped the many modes by which localities tie their work to funds obtained from individuals, disproportionately poor and of color, who make payments as part of the law enforcement system. In 2019, we published Ability to Pay, that both updated research and the case law on monetary sanctions and detailed some of the many efforts based at law schools to interrupt the pernicious systems and to bring into the curriculum knowledge Money and Punishment, Circa 2020 about and work on altering corrosive practices. A third volume, Fees, Fines, and the Funding of Public Services: A Curriculum for Reform, published in 2020, provides a primer on these issues to bridge the work in the fields of public finance, state and local governance, and tax policy with legal materials focused on monetary sanctions. Parts of this volume take as their frame “Ferguson,” where police ended Michael Brown’s life in 2014 and which has come to mark the exploitative, racist use of money in local and state systems. This volume also provides background readings for the 23rd annual Liman Colloquium, After Ferguson: Money and Punishment, Circa 2020, which became a series of virtual events in the wake of COVID-19. As these four volumes make plain, a remarkable array of efforts is underway to respond to the harms disproportionately experienced by communities of color and people of limited resources and to bring about profound change. Despite the length of this book, the excerpts provided here are a small subset of the commentary that has been written and of the resources that are available. This sampling, like the volumes that precede it, aims to contribute to national efforts to reconceive relationships between communities and the legal system that is supposed to support their wellbeing. Through monographs such as this—available as an E-book without charge, as are the other three volumes—we support the many activities aiming to shape just and equitable revenue-generation mechanisms that support governments without imposing harm on vulnerable individuals, families, and communities. Money and Punishment, Circa 2020 Money and Punishment, Circa 2020 Table of Contents I. Ferguson as a Frame The killings of Michael Brown in Ferguson in 2014 and of George Floyd in Minneapolis in 2020, as well as the mass protest movement underway related to those events, require that we address the ongoing violence of racial subordination, the abuse of government power, and the systemic inequalities of the criminal legal system. As more names are added to the tragically long roster of Black and Brown lives cut short by police and vigilante violence, calls for fundamental changes have proliferated. Documentation is plentiful from policing, prosecution, detention, and probation to prisons, that these systems over-control individuals and communities of color and under- control state violence. Local groups in Missouri have released analyses of the events and, in 2015, the U.S. Department of Justice issued a report detailing how the police, courts, and elected officials in the City of Ferguson, Missouri, chose to exploit low-income people of color by discriminatorily imposing fines and fees to fund the city’s budget. Ferguson was appalling but not unique. Now, more than five years later, racial and economic inequality is all the more vivid and, in the wake of the current economic crisis, the risk of yet more exploitative fees and fines looms as state and local budgets are stretched. This first segment of readings probe what the shorthand of “Ferguson” has come to denote, as commentators analyze what is does, should, or could mean. The excerpts address what has, and has not, changed since 2015 at local, state, and national levels. The need for money—sought by governments and spent by governments and private actors—is the justification for a wide array of fees and assessments. As these authors explain, the desire to punish through money has produced a welter of fines and economic penalties. Thomas Harvey, John McAnnar, Michael-John Voss, Megan Conn, Sean Janda, & Sophia Keskey, Municipal Courts White Paper, ARCHCITY DEFENDERS (2014) 1 ARCHCITY DEFENDERS, It’s Not Just Ferguson: Missouri Supreme Court Should Consolidate the Municipal Court System (2015) 3 Money and Punishment, Circa 2020 Equal Justice Initiative, Five Years After Ferguson, Policing Reform Is Abandoned (Aug. 12, 2019), available at https://eji.org/news/five-years-after- ferguson-policing-reform-abandoned/) 6 Complaint, Thomas v. City of Edmundson, No. 18-cv-2071 (E.D. Mo. Dec. 12, 2018) 7 Fant v. City of Ferguson, No. 4:15-CV-00253-AGF, 2019 WL 3577529 (E.D. Mo. Aug. 6, 2019) 10 Joshua Page & Joe Soss, “Preying on the Poor: Criminal Justice as Revenue Racket,” Kalamazoo College Weber Lecture (October 29, 2019) 13 Monica Bell, Hidden Laws of the Time of Ferguson, 132 HARVARD LAW REVIEW FORUM 1 (2018) 17 II. Funding Government: Fiscal Incentives, Inequalities, Reform, and Abolition An understanding of public finance systems and tax mechanisms is central to engaging in debates about how to alter structures of government funding to reduce or eliminate monetary sanctions. The questions are why and how government funds are collected and allocated, and the impact of various modes of financing. Researchers have documented how certain funding mechanisms produce and reinforce inequality, and have honed in on the effects of funding government services through fines and fees in state and local public finance systems. The readings consider the decision-making and the politics that drive assessments. Knowing these incentives is requisite to changing them, and throughout this volume, commentators examine means to alter pernicious fiscal policymaking. Bernadette Atahuene, Predatory Cities, 108 CALIFORNIA LAW REVIEW 107 (2020) 21 Brian Highsmith, The Implications of Inequality for Fiscal Federalism (or Why the Federal Government Should Pay for Local Schools), 67 BUFFALO LAW REVIEW 101 (2019) 23 Fairness Matters: A Chart Book on Who Pays State and Local Taxes, INSTITUTE FOR TAXATION AND ECONOMIC POLICY (2019) 24 Michael Leachman, Michael Mitchell, Nicholas Johnson & Erica Williams, Advancing Racial Equity with State Tax Policy, CENTER ON BUDGET & POLICY PRIORITIES (2018) 29 Money and Punishment, Circa 2020 Allegra M. McLeod, Envisioning Abolition Democracy, 132 HARVARD LAW REVIEW 1614 (2019) 32 III. The Practices, Law, and Harms of Tying Monetary Assessments to Law Enforcement Systems Many commentators have focused on the criminal legal system as a source of revenue.
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