Money As Punishment

Anna VanCleaveBrian HighsmithJudith ResnikJeffrey SelbinLisa FosterHannah DuncanStephanie Garlock and Molly Petchenik (Yale University – Law School, Arthur Liman Center for Public Interest Law, Yale University – Law School, University of California, Berkeley – School of Law, Fines & Fees Justice Center, Yale University – Law School, Yale University, Law School and Yale University, Law School) have posted Money and Punishment, Circa 2020on SSRN.

Here is the abstract: 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 literature on 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 have been used as sources of funds for governments at all levels. 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.

These materials are lengthy because of the proliferation of research on this subject, as well as the need to bridge legal and public finance analyses. The first segment, using “Ferguson as a Frame,” reflects the impact of 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. Documentation from policing, prosecution, detention, and probation to prisons is plentifulthat these systems exemplify the over-control of individuals and communities of color and the under-control of 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. Commentators analyze what “Ferguson” 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.

The second segment, Funding Government: Fiscal Incentives, Inequalities, Reform, and Abolition, reflects the importance of understanding public finance systems and tax mechanisms to learn 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 stop pernicious fiscal policymaking.

The third segment, The Practices, Law, and Harms of Tying Monetary Assessments to Law Enforcement Systems, includes readings about the history of criminal legal obligations, their impacts on individuals and families, how the harms track race and class, and what changes could make dents in the systems of unfairness. Excerpted essays explore government funding mechanisms and examine the formal distinctions among categories labeled “tax,” “fine,” and “fee,” their functional overlaps, and their effects. Other materials address aspects of constitutional and state and municipal law that frame some of the discussion and litigation. As recounted, concerns about “excessive” economic burdens imposed by governments have a long history. In the English-United States legal system, governments are forbidden from levying “excessive fines” and from imposing “cruel and unusual punishments,” as well as required to respect life, liberty, and property. Since the 1980s, governments cannot turn monetary obligations into incarceration. While some commentators and jurists call for these constitutional rights to stop systems of punishment that “ruin” individuals, these provisions have not yet been read to end the racial and economic oppression of legal assessments. Indeed, through the post-Civil War Black Codes, convict leasing, and peonage systems, and with expansion of criminal systems in recent decades and charges of “pay to stay” in jails and prisons, inequalities abound and “ruin” has resulted. In addition, several commentators address jurisdiction-specific harms and make proposals for change. Excerpted are a series of case studies, analyses of race as a key variable, and arguments for how and why to revise, reform, and transform the use of money in conjunction with courts.

The final set of edited readings, In the Courts and Legislatures, Circa 2020, and Shadowed by COVID-19, provide a partial account of the many lawsuits and legislative initiatives between 2018 and 2020, including recent months when COVID-19 came to dominate the world. As the judicial opinions reflect, some federal appellate courts are proffering limited readings of the 1980s precedents and narrowing the scope of constitutional protection for the intersection of poverty and of the “use” (voluntary or not) of courts.

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, which 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 about and work on revising 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.

This volume was co-edited by Anna VanCleave, Brian Highsmith, Judith Resnik, Lisa Foster, Jeff Selbin, Molly Petchenik, Hannah Duncan, and Stephanie Garlock.

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