The U.S. Constitution requires the jury in criminal trials, whether federal or state, to be unanimous in its verdict. And yet, in courts-martial, the jury (or "panel," in military justice parlance) may continue to convict-and impose a sentence of up to life in prison without the possibility of release-by the mere agreement of six out of eight jurors. This Note challenges the constitutionality of this noticeable relic in criminal procedure and, in light of judicial hesitation, recommends several measures that can be taken by the political branches of both the federal and state governments.
Legal scholars devote significant attention to the plight of incarcerated people, and they increasingly extend their focus to confront the social implications of incarceration for those outside the system. This Article goes further still: it argues that harsh conditions of confinement in the American criminal legal system may violate the constitutional rights of free people in the community-namely, the families of incarcerated people. To make this argument, we use the traditional critical methodology of "looking to the bottom": we draw on narratives collected through eight months of observations of a support group for family members of incarcerated people, along with twenty-seven in-depth interviews with such family members. We find that, in the face of governmental neglect of imprisoned populations, family members experience genuine coercion to provide their incarcerated loved ones with access to basic necessities, such as nutrition, physical safety, and post-release housing. In other words, informal social support networks, made up of civilians, backstop the state's carceral burden. In doing so, these networks become critical to the attainment of broadly beneficial objectives of the criminal legal system, like desistance from crime and successful reintegration upon release. We translate the narratives of these participants into constitutional language, arguing that the participants have experienced 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 introduce and defend the concept of "hidden takings": certain governmental seizures of private property that are effected by the excessively coercive, extra-legal pressure arising from the state's failure to uphold basic affirmative obligations to its people. We then show that hidden takings fit comfortably within current caselaw, 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 per se or regulatory takings that the courts have long accepted. We situate hidden takings within broader ongoing debates about takings law and progressive constitutionalism, finding that both originalist and critical perspectives are conducive to acknowledging hidden takings.
As climate disasters become increasingly common, causing unprecedented death and destruction, the Eighth Amendment's promise against cruel and unusual punishment offers little relief to incarcerated people. In 2005, Hurricane Katrina caused historic devastation on the Gulf Coast, and more than 8,000 people detained in state-run prisons and jails in the Orleans Parish Prison ("OPP") were left to die. OPP took four days to evacuate survivors.(1) Despite this tragedy, the law has not required the carceral system to meet the growing threat of climate disasters in the years since. And while climate change is devastating many communities, the plight of incarcerated people is unique: the state has total control over whether they can leave an overheated location or escape a hurricane. This Article analyzes federal courts' jurisprudence developed in response to incarcerated peoples' claims that extreme climate conditions in prisons and jails betray their Eighth Amendment right. Building on that case law, it advances a climate-informed approach to the Eighth Amendment. This Article does not seek to reform prisons to better equip them for the Anthropocene-or, as some suggest, to "green" prisons by making them environmentally friendly(.2) Such efforts historically have only further entrenched carceral violence by providing a veneer of acceptability. Instead, this Article recommends non-reformist reforms (actions that shrink "the state's capacity for violence") in the face of climate change.(3) Part I of this Article explains how climate change exacerbates the already inhumane conditions of incarceration. Part II outlines the current confines of the law. Part III advances a climate-informed approach to the Eighth Amendment. Part IV argues that if the state continues to trap people during natural disasters, the proper remedy for such cruel and unusual conditions is release. In sum, Parts I-IV show that current Eighth Amendment jurisprudence effectively legalizes cruel and unusual punishment and that the state cannot constitutionally confine people in such conditions.
In recent years, legal academia's interest in abolition and the harms of pretrial incarceration has increased dramatically. Much of the scholarship has focused on the theoretical underpinnings of abolition, problems associated with the cash bail system, and forms of abolition (police abolition, prison abolition, etc.) in the abstract. However, less attention has been paid to abolitionist movements on the ground-that is, examining how or why abolitionist projects, organizing, campaigns, and movements operate-and their attempts to abolish cash bail. Currently, legal scholarship lacks sufficient grounded qualitative empirical accounts of abolition. This article aims to fix this problem by offering a detailed account of one of the most successful and significant abolitionist campaigns of the past decade: the abolition of cash bail in Illinois. Relying on thirty-three in-depth semi-structured interviews with current and past organizers, politicians, government officials, activists, and advocates, I explore how "The Movement to End Money Bond" succeeded. The narrative(s) presented here demonstrate how abolitionist praxis operates in the real world, providing practical and viable public safety alternatives to the status quo. By engaging with those directly responsible for the abolition of cash bail in Illinois, this project highlights the importance of broad-based coalition-building and multi-faceted tactics. I advance the claim in this article that abolition can be used to make our criminal justice system, specifically our pretrial system, more safe, accountable, and just. My work here provides three critical contributions. Firstly, I uncover the various tactics abolitionists in Illinois used to achieve success, ranging from disruptive direct actions that shut down courtrooms to more traditional Civil Rights tactics like legislative lobbying and impact litigation. This demonstrates the importance of both traditional and nontraditional tactics in efforts to successfully decarcerate the criminal justice system. Secondly, my work shows that meaningful coalitions, which include abolitionists and non-abolitionists, can result in successful abolitionist campaigns. Lastly, I show that abolitionists are not solely focused on wholesale revolutionary change; they are equally focused on getting victories that gradually make our criminal justice system more just.
This essay, an adaptation of an endowed lecture, aims to accomplish a few goals. First, it offers a tripartite account American mass incarceration, defined in terms of scale, concentration, and genealogical connection to slavery and racial oppression. Second, it explores the role lawyers have played in building the current system of mass incarceration. Third, it considers two different models for how lawyers might work to undo mass incarceration, and makes the case for one of those models: lawyering in service of organizing. Finally, it closes by offering a suggestion for how best to think about the relationship between lawyers and anticarceral social movement actors.
As it becomes increasingly clear that federal courts hold limited promise for civil rights expansion, eyes have turned to state courts for rights enforcement—and appropriately so. State constitutional rights are more robust, state constitutional remedies are more complete and constitutionally sourced, and state courts are designed to be more responsive to citizens’ needs. But the promise of state constitutional law is not a guarantee that state courts will remain interested in rights enforcement into the future. As federal remedies contract, state remedies are likely to follow. This article addresses address the likelihood that state courts (and state legislatures) will be asked to limit relief to the parties to a proceeding, in line with the federal trend of limiting universal remedies. State courts differ from each other, as well as from federal courts, and there can be no one-size-fits-all approach. But some patterns in state constitutions counsel in favor of universal injunctions in state courts. First, the federal debate has been framed largely in originalist terms, but state courts are generally not originalist—and even if they were, state constitutional originalism would require rejecting federal originalism’s look-back to pre-founding English common-law conceptions of equitable judicial power. Second, pragmatic concerns that inform the federal debate are different—and at times absent—in state courts due to differences in court structure, geographic jurisdiction, and democratic accountability. Third and finally, state judicial power generally is broader than federal judicial power, as evidenced by relaxed state court standards for justiciability—and that broader power is essential to state separations of powers.
Federal fee-shifting statutes, which allow certain prevailing plaintiffs to recover a reasonable attorney's fee from the defendant, are critically important to civil rights enforcement. When it comes to the interpretation of these statutes, however, a wide gap separates the doctrine articulated by the Supreme Court and the decisions issued by lower courts. According to the Supreme Court, the calculation of a feeshifting award requires a highly contextualized inquiry, specific to the plaintiff's attorneys and claims; in the lower courts, by contrast, judges take a set of welltrodden shortcuts that flatten many of the differences the case law makes relevant. This Article identifies and analyzes this gap between the Supreme Court and the lower courts. It focuses on three particularly common shortcuts: lower courts' use of standardized hourly rates, reliance on judicial expertise about legal markets, and duplication of previous fee awards. Each of these shortcuts can undervalue attorneys' labor, making it harder for civil rights claimants to find qualified counsel. None is fully consistent with the highly contextualized inquiry that the Supreme Court requires. Meaningfully narrowing the gap between the Supreme Court and the lower courts would require as much attention to legal culture as to legal doctrine. For example, if a Justice does not appreciate the day-to-day work of the district courts, they will be unlikely to recognize the judicial burdens their fee-shifting decisions have created; and if a judge does not appreciate the logistics and value of plaintiff-side civil rights litigation, they will be unlikely to treat the resolution of fee disputes as a task worthy of their time.
Paramilitarism is on the rise in America. In recent years, paramilitaries have mounted violent responses to movements for racial justice, climate emergencies, public health protocols, and migrant border crossings. Militias, white power organizations, and other paramilitary groups often claim their violence is justified as a legitimate defense of property, citing the need to protect rights to land and water, as well as to businesses, ranches, and guns. This Article demonstrates how property is used as a form of authorization and justification of American paramilitarism-and how paramilitarism, in turn, has shaped property as legal regime and cultural ideal. This complicates the common understanding of militias as outlaws, engaged in violent projects that are both illegal and contrary to American ideals. In fact, paramilitaries have long grounded their ideology and action in both law and notions of property that are central to the American creed. Paramilitaries claim legitimacy and authority via the defense of property as an object of ownership and as a constitutional right. At the same time, they shape property rules and practices by generating new interpretations of property which are then mainstreamed. The intimacy between paramilitarism and property has gone largely untheorized. Yet it is critical to explaining both the development and expansion of paramilitarism and the evolution of property doctrines and practices in America. The Article first examines property as a fundamental concept for U.S. paramilitarism and paramilitary ideology. It focuses on three illustrative case studies: the armed occupation of the MalheurNational Wildlife Refuge in Oregon; armed counterprotests of Black Lives Matter demonstrations in Wisconsin; and militia patrols of the U.S.-Mexico border. Together, these cases illustrate how property has served as an ideological touchstone and source of authority and legitimacy for paramilitarism. The conceptual underpinnings of this relationship lie in paramilitary modes of constitutional interpretation. These modes laid the groundwork for the mainstreaming of paramilitary conceptualizations of property into broader American culture, shaping contemporary debates around public lands, racial justice, and immigration. The Article then examines how paramilitarism has shaped property. Paramilitarism is an unacknowledged root of property doctrines as well as American cultural practices related to the acquisition and protection of property rights. It has influenced doctrines and practices concerning the acquisition of property, particularly during the settlement of the American West. It has also shaped rules and cultural practices related to the protection of property, including self-deputization authorized by Stand Your Ground laws, racial exclusion and segregation, and protection of natural resources in moments of environmental crisis. Recognizing the intimacies between paramilitarism and property yields crucial lessons for the ways we understand and theorize property. By drawing on property's dual role as a form of both private ownership and public power, paramilitaries have shaped the ways property is understood and enacted both as a form of ownership over things and as a claim to power over others. The history of state delegation to private actors of control over both territory and people, as well as enforcement of property rules, in effect incorporated paramilitarism into the basic functions of the state via property. This illustrates the indeterminacy of property, as it opens up the possibility of both democratic order and paramilitary violence simultaneously.
On March 21, 2023, the United States Supreme Court delivered a seismic ruling in Perez v. Sturgis Public Schools, a decision widely celebrated as a groundbreaking win for students with disabilities. Yet, while there is certainly cause for celebration, this Article takes on a decidedly critical view of the Court's unanimous decision, more for what the Court failed to clarify than for what it did. The Perez Court was presented with two questions. The first involved whether the Individuals with Disabilities Education Act ("IDEA"), the nation's preeminent disability rights statute for students with disabilities, required prospective plaintiffs to exhaust their administrative remedies under the IDEA prior to the filing of a claim in court under separate federal statutes, such as the Americans with Disabilities Act ("ADA") or Section 504 of the Rehabilitation Act of 1973 ("Section 504"). The second question concerned whether prospective plaintiffs must adhere to the IDEA's administrative procedures when the relief sought-namely, money damages-cannot be provided under the IDEA. Although the Court granted review on both questions, it declined to address the first, finding it unnecessary to determine "whether IDEA's exhaustion requirement is susceptible to a judge-made futility exception." The Perez Court's failure to resolve whether the IDEA's exhaustion requirement is susceptible to a judge- made futility exception leaves in place an enduring circuit split on the issue. This Article addresses, and attempts to resolve, this open question. Namely, if a plaintiff's claim implicates the IDEA's free appropriate education ("FAPE") provision, thereby requiring the exhaustion of their administrative remedies under the IDEA, is the plaintiff still required to exhaust if doing so would prove administratively futile? Despite the treatment that students with disabilities have received in judicial opinions and legal scholarship to date, neither forum has undertaken an exhaustive analysis of the prevailing circuit split as it applies to students with the most significant cognitive disabilities. This Article aims to fill that gap. In doing so, it seeks to clarify when the systemic violation exception to exhaustion-which has been found to fall under the broader catchment of a judge-made futility exception-must be applied. As a normative matter, moreover, the Article makes the case for the uniform adoption of the Ninth Circuit's approach to interpreting and applying the systemic violation exception to the IDEA's exhaustion requirement. It then argues that the disproportionate placement of students with the most significant cognitive disabilities into segregated educational settings by school personnel serves as a structural failure to comply with the IDEA's least restrictive environment ("LRE") requirement, thereby rendering the IDEA's exhaustion requirement susceptible to futility's systemic violation exception. By uniformly adopting the Ninth Circuit's approach in this way, courts will not only apply this futility exception more consistently, but also establish a uniform standard that aligns with the central purpose of the IDEA and its LRE mandate. Indeed, this purpose, as observed by one of the principal drafters of the IDEA's LRE provision, is to "represent a gallant and determined effort to terminate the two-tiered invisibility once and for all with respect to exceptional children in the nation's school systems."
This Article introduces a provocative thought experiment: state-funded counsel as a universal mandate for all people facing criminal charges. Said another way, universal public defense for everyone, even defendants who could otherwise afford representation. The Sixth Amendment currently protects the right to counsel of choice for people who can afford to hire their own lawyer. This is not so for indigent defendants; they have no such constitutionally protected right. This Article invites us to envision a reality where defendants with means are placed on the same footing as those without, and to consider how this new defense model might impact the criminal adjudication system and the actors within it. First, this Article explains how universal public defense would operate-the parameters, the funding, and the delivery system. Second, it turns to the Progressive Era and reporting from the period to unearth the genealogy of public defense. It was then that reformers first suggested "free defense" for all, regardless of income. Finally, this Article assesses universal public defense by delving into policy debates comparing universally available social programs with targeted programs. Any improvement to public defense-to the quality, funding, and availability-depends on how broadly the impact of mandated universal public defense is felt. This new defense model could alter the way the adjudication system operates-from prosecutor charging decisions, the attorney-client relationship, and sentencing decisions. These ideas are timely and necessary. The current criminal adjudication system-riddled with inefficiencies, bias and discrimination, and an over reliance on incarceration-is unsustainable and in need of reform. Building on the work of critical legal theorists, this Article invites readers to suspend disbelief and envision an alternate reality. Doing so forces us to grapple with the structural inequalities baked into indigent defense. It can also unlock generative ideas about practical interventions. This Article concludes with a call for other radical thought experiments to help better understand seemingly intractable problems.
