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October 12, 2020

"Money and Punishment, Circa 2020"

The title of this post is the title of this big new collection of materials now available via SSRN put together by multiple authors (mostly based out of Yale Law School).  Here is part of 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....

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....

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.

October 12, 2020 at 01:30 PM | Permalink


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