"Hidden Takings and the Communal Burden of Punishment"

The title of this post is the title of this new paper available on SSRN authored by G. Alex Sinha and Janani Umamaheswar.  Here is its abstract:

The American criminal legal system is notorious for subjecting those it imprisons to harsh conditions of confinement. Legal scholars are well aware of this feature of the system, and they contend regularly with its implications.  Unlike criminologists and other social scientists, however, legal scholars are much less engaged with the significance of harsh conditions of confinement for people outside the system.  Perhaps this is not surprising.  The legal implications of conditions of confinement might seem generally restricted to the people confined.  We argue to the contrary.  More specifically, we claim that harsh conditions of confinement in the American criminal legal system may violate the constitutional rights of free people in the community — specifically, the families of incarcerated people.  To make this argument, we draw on eight months of observations of a support group for family members of incarcerated people, along with 27 in-depth interviews with such family members.  We marshal their narratives to illuminate the challenges that family members face in ensuring their incarcerated loved ones’ access to necessities, like nutrition, physical safety, and post-release housing.

We find that, in the face of governmental neglect of imprisoned populations, family members experience genuine coercion to contribute money and labor to backstop the state’s carceral burden.  In doing so, they become critical to the attainment of broadly beneficial objectives of the system, like desistance from crime and successful reintegration upon release.  We translate the narratives of these participants into constitutional language, concluding that they are experiencing takings that should be cognizable under the Fifth Amendment’s Takings Clause.  The Takings Clause provides that “private property [shall not] be taken for public use, without just compensation.”  But unlike traditional or regulatory takings, the extraction of property from the loved ones of incarcerated people occurs under extreme social or moral pressure rather than pursuant to legal directives.  To capture the experience of the participants in this study, we therefore introduce and defend the concept of “hidden takings” — certain governmental seizures of private property that are effected by subjecting property owners to excessively coercive, extra-legal pressure. We then show that hidden takings fit comfortably both within the current caselaw on takings, as well as within numerous and varied theoretical accounts of what takings law should achieve.  In some respects, in fact, the case for recognizing hidden takings is stronger than the case for recognizing traditional or regulatory ones.  Notably, we find that both originalist and critical perspectives are also conducive to acknowledging hidden takings.