By Sara K. Rankin

The criminalization of homelessness refers to the enactment and enforcement of laws and policies that punish unsheltered people for surviving in public space, even when those individuals have no reasonable alternative. The constitutional and civil rights issues stemming from criminally charging unsheltered people for public survival are clear, albeit not uncontested. But cities often skirt legal challenges to criminalization by pursuing means other than criminal charges to punish homelessness. Many cities “civilly criminalize” homelessness through civil enforcement, which extends from infractions or fines to “invisible persecution,” such as the persistent policing and surveilling of unsheltered people. While courts, legislatures, and advocates largely focus on criminal charges, those punishments are just the tip of the criminalization iceberg: civil enforcement is arguably more extensive and damaging. However, courts and legislatures largely do not protect people experiencing homelessness from civil criminalization. This Article argues for greater attention to the devastating impact of civil punishments, drawing from other critiques that expose how civil tools punish poor and vulnerable people. It also examines how punishment operates outside of both criminal charges and civil sanctions, severely penalizing unsheltered people and requiring reform.

Harvard Civil Rights-Civil Liberties Law Review [Vol. 56 , 2021. 46p.

By Abel Rodriguez

Increasingly, U.S. immigration law and policy perpetuate death. As more people become displaced globally, death provides a measurable indicator of the level of racialized violence inflicted on migrants of color. Because of Clinton-era policies continued today, deaths at the border have reached unprecedented rates, with more than two migrant deaths per day. A record 853 border crossers died last year, and the deadliest known transporting incident took place in June 2022, with fifty-one lives lost. In addition, widespread neglect continues to cause loss of life in immigration detention, immigration enforcement agents kill migrants with virtual impunity, and immigration law ensures courts routinely order people deported to their deaths. As these preventable deaths persist, particularly among migrants of color, the Supreme Court has all but foreclosed causes of action against individual federal agents for wrongful death. It has done so most notably in its recent 2022 decision Egbert v. Boule, further limiting judicial remedies for constitutional violations and sanctioning use of force as a routine function of immigration enforcement.

This Article provides a novel perspective on law enforcement and race. It is the first to provide a comprehensive examination of lethal immigration enforcement, arguing that racialized policy rationales, impunity instituted by courts, and prevailing political paradigms have coalesced to render migrants of color expendable. Therefore, the enforcement system must be reimagined. While scholars have begun to analyze the immigration system in terms of “slow death,” or harms that occur over time, a holistic view of “spectacular deaths,” those readily perceived, is lacking. After mapping how the immigration enforcement system takes migrant lives, this Article interrogates the policy rationales for lethal enforcement in light of largely unexamined data, finding that anti-Blackness drives punitive immigration detention and the perceived dangerousness of Latinx migrants fuels lethal border policies. It then turns to an analysis of wrongful death actions and recent Supreme Court doctrine, poised to impede remedies for excessive force in courts further and escalate racialized violence against noncitizens. Ultimately, given the urgency of addressing rising migrant mortality, it calls for a paradigm shift beyond liberal reforms to end lethal enforcement and its racial subordination.

CORNELL LAW REVIEW [Vol. 109:465, 2024, 71p

By Michael Kagan

In theory, the Department of Homeland Security bears the burden of proof  when it seeks to deport a person from the United States. But the government rarely has to meet it. 

This Article presents original data from live observation in Immigration Court, documenting that almost all respondents in deportation proceedings admit and concede the charges against them, even when they have attorneys, without getting anything in return from the government. 

Focusing especially on the role of immigrant defense lawyers, the Article explores why this is happening. 

It critiques the legal standards of proof used in Immigration Court, while also exploring normative ambiguities about the role of 

immigration lawyers in deportation proceedings. Together, these factors are effectively depriving many immigrants of the vigorous legal defense that they deserve.  

UC IRVINE LAW REVIEW [Vol. 14:163 2024, 49p.

By Tasseli McKay and William A. “Sandy” Darity Jr.

Social scientists continue to declare that mass incarceration, a defining social force of the last half century, is on its way out. Lifetime risks of imprisonment are indeed in decline, as are absolute and relative imprisonment risks for Black Americans. But whether we consider mass incarceration to be over, or even on its way out, depends a great deal on what we believe mass incarceration is and what it does.

Scholarship on the “collateral consequences” of mass incarceration, leaving concerns with political etiology to political scientists, is curiously absent a broader concept of how such consequences function. Even as the field rigorously documents the vast social, political, economic, and health fallout of mass incarceration, it remains largely agnostic on a central theoretical concern: Do we conceive of mass incarceration as a policy mistake with negative consequences for us all, or as a well-running engine of racial stratification that has enriched some Americans at others' expense? How we answer this question, or do not, has tremendous implications for how we study the harms of mass incarceration and what policy moves we deem capable of confronting it.

Scholarship on mass incarceration's consequences is often introduced with reference to racial inequality. Such scholarship has identified an array of mechanisms by which mass incarceration appears to contribute to racial stratification, particularly through a longstanding line of inquiry on the disproportionate impact of incarceration-related constraints on Black men's workforce participation, income, and wealth. Yet most such research frames these phenomena as an unfortunate artifact of racially disproportionate criminal legal system contact, rather than situatingthe impetus and functioning of the criminal legal system within a broader theory of structural racial inequality.

Critiquing the failure to engage questions of structural racism in empirical research on mass incarceration's consequences, two of the field's preeminent scholars argue,

While most studies that explore the consequences of mass incarceration for American families are motivated by racial inequality within the carceral system--rightfully so, given the massive racial disparities in incarceration rates and criminal justice involvement--the work often fails to engage this important issue in meaningful ways .... We neither interrogate why we see racial disparities in mass incarceration nor do we investigate why we might see racial disparities in outcomes due to mass incarceration.

Indeed, with important exceptions, collateral consequences research inventories the implications of mass punishment for individuals, neighborhoods, and nations rather than examining how a racially targeted punishment system functions within a broader set of national and subnational institutions that systematically privilege whiteness. Further, the possibility that mass incarceration produces systematic benefits, in addition to or even as an impetus for its systematic harms, receives very limited scholarly attention. Such research, if it aims to confront racial injustice, must “move beyond description of racial inequality [and] think critically about how our society's raced institutions interact with one another to stratify the experiences of American families”.

Toward that end, the current review applies the theory of stratification economics to consider whether and how the broad criminalization and intensive punishment of Black Americans have advanced or advantaged their White contemporaries. First, the review briefly revisits key theoretical perspectives on the consequences of mass incarceration and proposes stratification economics as a meta-theoretical framework for understanding the production and functioning of those consequences. Next, it applies stratification economics to available social scientific evidence on the consequences of mass incarceration, analyzing the implications of that evidence for the relative standing of White Americans. Finally, the review advances an agenda for future research and policy capable of confronting and redressing the ill-gotten gains of mass incarceration.

20 Annual Review of Law and Social Science 309 (2024), 22p.

By Tashayla Sierra-Kadaya Borden

xisting literature does little to address the unique victimization of Black women in the law. Studies looking through a racial lens may ignore Black women by failing to address gender. Alternatively, gender analysis may center around issues specific to white women. White feminist scholars promote carceral feminism, a “neoliberal law-and-order agenda pursued by a coalition of secular anti-prostitution feminists and white evangelicals.” Carceral Feminism focuses on white womanhood and harms marginalized communities, actively pushing Black women into prison. To address this, Black feminist scholars have developed key theories to understand Black women's experiences. One such scholar, Moya Bailey, coined the term misogynoir to describe “the uniquely co-constitutive racialized and sexist violence that befalls Black women as a result of their simultaneous and interlocking oppression at the intersection of racial and gender marginalization.” Misogynoir operates as a form of implicit or explicit bias that informs how and why the state views Black women as dual victims and victimizers.

In 2019, the New York State Legislature passed the DVSJA. The DVSJA amended New York's existing Penal Law § 60.12 and created Criminal Procedure Law § 440.47 to provide resentencing for currently incarcerated individuals. This statute permits a judge to change a domestic violence survivor's initial sentence if the abuse was a “significant contributing factor” to the crime. The DVSJA is the first legislation of its kind in the United States. Advocates and survivors promoted this statute to decriminalize trauma and help individuals who commit crime while suffering abuse. Other states have enacted similar laws, but Black women still face lingering issues that exacerbate coercive abuse, racism, and gendered violence.

This Note examines the impact of New York's revolutionary DVSJA on Black woman survivorship while proposing solutions and improvements for other states aiming to replicate the statute. Part I summarizes the DSVJA and contextualizes the case law that preceded its passing. Part II describes the unique impact of domestic violence on Black women, the challenges of qualifying for relief under the statute, and the limitations of resentencing. Lastly, Part III offers noncarceral solutions that replace sentencing and help Black women share their experiences as abuse survivors.

144 Columbia Law Review 2065 (2024), 40p.

By Andrew Howard

Almost every county in the United States elects its chief Prosecutor, but the chief Public Defender, if there is one, is generally an appointed position. In four states, however, some or all of the Public Defender offices have elected leaders. Although prosecutorial elections have been heavily studied and criticized, relatively little attention has been paid to the elections of their counterparts. This Note sheds light on how Public Defender elections impact a criminal justice ecosystem. A series of interviews with elected Public Defenders reveal these elections can enhance the independence and stature of the position. Additionally, the interviews and additional research rebut the primary criticism of these elections: that voters may elect someone who wanted to work against indigent defendants. There are simply very few examples relative to the many counties that have these elections. These qualitative findings are supported in part by further quantitative analyses. First, this Note found a correlation of increased Public Defense experience amongst the state judiciary in jurisdictions where there the chief Public Defender is elected. Second, this Note found a correlation between these elections and increased salary parity between Public Defenders and Prosecutors in the same state.

Accordingly, this Note argues that some counties should explore making their chief Public Defender an elected position. While far from a panacea for the many issues facing the American criminal justice system, these elections could help enhance the quality of indigent defense where implemented.

Columbia Human Rights Law Review, 2020, 40p.

By Ben Finholt

For decades, the North Carolina Supreme Court—like many other state supreme courts—largely ignored its own state constitution’s ban on harsh criminal punishments and deferred entirely to federal case law on the constitutional limits of excessive sentences. The result has been near-total deference to the state legislature and a discriminatory mass incarceration crisis that has ballooned without meaningful constitutional checks.

This approach has been a serious mistake of constitutional law. As Justice Harry Martin once noted, “the Constitution of North Carolina . . . is the people's timeless shield against encroachment on their civil rights,” and it provides uniquely broad protections of civil rights and personal liberty. Yet sentencing law has been the exception, despite a specific provision that bans “cruel or unusual punishments,” and whose text and original meaning are distinct from the Eighth Amendment.

The North Carolina Supreme Court finally revived this clause, Article I, Section 27, in two recent cases involving children sentenced to serve decades, recognizing that it should not be interpreted in lockstep with its federal counterpart. This Article argues that these cases provide a crucial moment of doctrinal clarity and opportunity to articulate the independent meaning of Section 27 and unleash its power as an essential tool in the urgent project of dismantling mass incarceration. While previous scholarship has noted that state analogs to th

e Eighth Amendment can and should bear their own independent meaning, this Article provides a full analysis of Section 27 specifically, looking to its text and history, related constitutional provisions, and other factors to show that it provides broader protections against excessive punishments than does current Eighth Amendment case law. This Article also sketches a doctrinal framework that state courts can apply in all challenges to excessive punishment, not just those involving children.

Finally, the Article places this constitutional analysis in the specific context of North Carolina’s criminal legal system, explaining how other mechanisms of reducing needless incarceration have proven wholly inadequate.

Duke Law School Public Law & Legal Theory Series No. 2023, 49p.