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Poverty, Privacy, and Living Out of Reach

Michele Gilman &  Rebecca Green, The Surveillance Gap: The Harms of Extreme Privacy and Data Marginalization, 42 N.Y.U. Rev. L. & Soc. Change 253 (2018).

If in general we are to understand that, in our new age of surveillance and pervasive use of data, privacy is dead, something else is happening in poor communities. In Poverty Law scholarship, privacy is framed more accurately as violently absent. Hypersurveillance, hyperregulation, criminalization, stigma, and structural racism have created a world in which, in Khiara Bridges’s words, “state intervention, coercion, and regulation”1 are the norm. Poverty Law scholars also know privacy as something that is, in its idealized liberal form, profoundly inadequate. As Dorothy Roberts argues, “merely ensuring the individuals ‘right to be let alone’—may be inadequate to protect the dignity and autonomy of the poor and oppressed.”2 Indeed a better notion of privacy “includes not only the negative proscription against government coercion, but also the affirmative duty of government to protecting the individual’s personhood from degradation and to facilitate the processes of choice and self-determination.”3

In The Surveillance Gap, Michele Gilman and Rebecca Green quite literally take all these realities and flip them over–revealing both the inevitable retreat that comes from intervention, coercion, and regulation, and the resulting lack of access to legal and institutional supports that might just support self-determination. But the flipping is just a piece of the contribution. After all, for those in the field, none of the facts are all that surprising. What is different here is what all this means for how we theorize privacy and how we create and support resistance.

Gilman and Green identify four groups who they describe as living at privacy’s extremes, groups that are “being seen or tracked too little or too much.” (P. 255.) The four are undocumented immigrants, day laborers, homeless people, and people with felony conviction histories. The “too much” piece of the tracking of these groups is well-known and well-told, both in the article and in the literature referenced above. Certainly the details vary, but all four groups are subject to hypersurveillance and punishment. And, being rational actors all, members of these groups resist through withdrawal. They meet pervasive attempts to track, control, and punish with often-successful attempts to evade detection and to retreat into some semblance of safety and privacy.

If all the surveillance and punishment are Gilman and Green’s “too much,” the “too little” are the real harms that result from that retreat. In one chilling example, “the 1.1 million undocumented children in the United States can suffer from health deficits, because parents are scared to take them to doctors, and educational delays, because parents are scared of enrolling them in school.” (P. 264.) So those who are most marginalized and stigmatized end up not being able to access what meager support might be out there. These harms not only lessen access to traditional social supports, but they also go to the center of our democracy. In short, it is tremendously difficult to participate in any meaningful way when you are deliberately retreating into the shadows.

Gilman and Green aptly describe both the causes and the conditions of living in what they term the surveillance gap. Initially, at least, all this is very depressing. If retreat is the logical and human response to surveillance and punishment, and is in fact a viable form of resistance, the retreat may create a little bit of safety or a semblance of autonomy, but it does not do much to, in Roberts’ framing, “facilitate the processes of choice and self-determination.”4

Gilman and Green acknowledge these enormous theoretical and practical problems, and along the way they provide a comprehensive summary of a wide range of privacy theories, but they do more than that. They conclude with a promising path forward. In short, if living in the surveillance gap means you trade access to support and participation for a minimal and degraded form of safety, then the only solution is to remake the terms of the bargain. Communities need a way both to emerge on different and safer terms, and to demand support separate from stigma. And of course, for that you need power.

For examples of this reframing and emergence Gilman and Green highlight several organizing campaigns. For example, Workers Centers allow day laborers to emerge collectively and make demands on their own terms. Homeless folks in Seattle fought the terms of a surveillance system (HMIS) purportedly designed to help provide services. The organized community wanted the support but they also wanted a different bargain–a choice to access services without an assumption of pathology and without succumbing to surveillance. As Gilman and Green describe, “after lengthy mediations the city adopted an ‘opt-in’ version of HMIS that did not require individuals to receive services or require shelters to participate as a funding condition.” (P. 304.)

In these and other examples, we see communities creating “strategies that give people the autonomy to assert or shed privacy.” These strategies are “essential to their individual dignity and to fulfilling our communal democratic promise.” (P. 305.) As Gilman and Green argue, these examples “show that grassroots organizing, driven by the objectives and insights of affected groups, can be powerful in enhancing autonomy.” (P. 305.) None of this is easy and certainly there is strong resistance to these organizing campaigns, but it is nevertheless a glimmer of a path away from the harms of the surveillance gap.

This article reads like the beginning of work by these scholars on reconceptualizing both privacy theory and remedies to the surveillance gap. I, for one, am going to be paying attention as they take us down that road.

Cite as: Wendy Anne Bach, Poverty, Privacy, and Living Out of Reach, JOTWELL (September 11, 2019) (reviewing Michele Gilman &  Rebecca Green, The Surveillance Gap: The Harms of Extreme Privacy and Data Marginalization, 42 N.Y.U. Rev. L. & Soc. Change 253 (2018)), https://lex.jotwell.com/poverty-privacy-and-living-out-of-reach/.

Federal Courts and the Poor: Lack of Standards and Uniformity in Civil In Forma Pauperis Pleadings

Andrew Hammond, Pleading Poverty in Federal Court, Yale L. J. (forthcoming). Available at SSRN.

In United States v. Kras, the Court rejected the argument that a poor person petitioning for protection from creditors should not have to pay a filing fee in order to access the bankruptcy system. The majority held that an able-bodied person could make the payment because the $50 fee was only $1.92 per week if spread over six months and $1.28 if spread over nine months. Justice Blackburn noted that such a fee at the time was “less than the price of a movie and little more than the cost of a pack or two of cigarettes.” Justice Thurgood Marshall’s dissented, observing:

It may be easy for some people to think that weekly savings of less than $2 are no burden. But no one who has had close contact with poor people can fail to understand how close to the margin of survival many of them are….A pack or two of cigarettes may be, for them, not a routine purchase but a luxury indulged in only rarely. The desperately poor almost never go to see a movie, which the majority seems to believe is an almost weekly activity. They have more important things to do with what little money they have….

For the poor, fees, even supposedly “nominal” fees, matter. In the civil law context, Congress has established a $350 filing fee to access the federal courts and the Judicial Conference tagged an additional $50 administrative fee onto that. (P. 12.) While the non-poor may be able to treat the combined $400 fee as a mere inconvenience, such an amount can serve to bar poor civil litigants from the federal courts.

Andrew Hammond’s article, Pleading Poverty in Federal Court, shows that there is considerable variation in how federal courts consider requests by the poor for fee waivers in civil litigation. Courts not only use different forms to collect ability-to-pay information but they also apply different standards when determining whether fees should be waived. By focusing attention on federal court in forma pauperis motion practices, Hammond’s article sheds light on how the poor can be negatively impacted by routine court practices that might ordinarily be treated as merely administrative. Hammond makes a convincing argument that federal courts should have uniform standards for what information is collected and for the level of need that is associated with a fee waiver. Blending empirical work—a significant contribution of the article is that it catalogues the in forma pauperis forms used by all 94 federal district courts—with an appreciation for the struggles faced by poor litigants, Pleading Poverty in Federal Court is a well-written, targeted intervention that hopefully will improve the ability of the poor to access the federal courts.

The article includes a number of eye-opening details. The Southern District of Alabama asks litigants to provide the makes and models for their “automobiles, boats, [and] motorhomes.” (P. 18.) Puerto Rico’s district court asks movants if they have income from horse racing and gambling. (P. 21.) These variations are arguably less striking than the fact that different judges in the same federal district court can have different standards and practices when it comes to their review of in forma pauperis motions. As Hammond notes, “Some judges might use 100% of the federal poverty guidelines (FPL) as their threshold. Others will use 200%. Some will simply have their law clerk review the form and make a determination based on the information provided.” (P. 27.) Even putting aside the problem of variation across districts, there are many problems with leaving in forma pauperis discretion to each judge in the same district court. It can make the question of whether a poor litigant can get into the courtroom wholly arbitrary, tied to whether the assigned judge is someone who gives waivers easily or someone who rarely gives a waiver. Moreover, review of in forma pauperis motions forces judges to “make complicated, arcane poverty determinations—often reconciling a dozen categories of income with a dozen categories of expenses,” which Hammond argues is not a good use of the scarce time of an Article III judge. (P. 28.) (While I appreciate Hammond’s point, part of me is glad that this process forces judges to confront the poverty of some of the litigants, to look at the details of their lives. Such examinations may often be technically irrelevant to the proceeding but they may nevertheless help judges see both trends and the full person before them.)

In addition to the complications for federal judges associated with variation in the standards used by district courts when it comes to in forma pauperis motions, Pleading Poverty in Federal Court highlights the impact overly detailed information collection can have on poor litigants. Though Hammond’s article focuses on federal court practices, it includes a similarly impressive catalogue and overview of how state courts consider in forma pauperis motions. Just as in the federal courts, variation abounds across state courts. But Hammond also observes that states have adopted a number of practices that simplify the process of applying for a fee waiver, including establishing presumptive eligibility for fees to be waived based on: (a) a pre-determined multiple of the federal poverty line, (b) receipt of particular means-tested welfare benefits, or (c) representation by legal aid attorneys. (P. 40.) Moving away from overly intrusive information collection towards a system that partly piggybacks on the means-testing work of other entities, supplemented by a simpler form, would help judges and poor litigants. Khiara Bridges shows in The Poverty of Privacy Rights that the law strips the poor (but not the middle and upper class) of their privacy—often as a condition of receiving means-tested benefits—in ways that use information as a means of control. Although looking at a particular area of civil procedure as it relates to the poor and not the entire legal landscape, Hammond’s argument that “a streamlined, shorter form makes the process more sophisticated and more accurate, while preserving the dignity of poor people” (P. 57) fits nicely alongside Bridges’ work.

Some of the best poverty law articles—for example, Lucie E. White’s Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G. and Barbara Bezdek’s Silence in the Court: Participation and Subordination of Poor Tenants’ Voices in Legal Process—get their strength from qualitative observations of the courtroom experiences of the poor. Pleading Poverty in Federal Court adds an empirical dimension to such participant-centered works. By pulling back the curtain on federal court practice and the high level of variation in what courts require of poor litigants, as well as their different standards for granting fee waivers, the article provides a valuable contribution to the literature on how the poor experience the law. Hammond shows how reforming a single element of civil procedure, standardizing federal in forma pauperis practice, can help open federal courthouse doors to the poor a bit more.

Cite as: Ezra Rosser, Federal Courts and the Poor: Lack of Standards and Uniformity in Civil In Forma Pauperis Pleadings, JOTWELL (February 1, 2019) (reviewing Andrew Hammond, Pleading Poverty in Federal Court, Yale L. J. (forthcoming). Available at SSRN), https://lex.jotwell.com/federal-courts-and-the-poor-lack-of-standards-and-uniformity-in-civil-in-forma-pauperis-pleadings/.

Hope

Amna Akbar, Toward a Radical Imagination of Law, 93 NYU L. Rev. 405 (2018).

Amna Akbar’s latest article takes sharp aim at the collectively constrained imagination of current legal scholarship and liberal reform agendas focused on the criminal legal system. And rightly so. She demonstrates that, with notable exceptions, we are mired, and almost lost, in our collective belief that the problems of the criminal legal system are problems of bad actors, bad seeds, and badly-implemented laws. She shows us that so many of the solutions we cling to will do nothing to address the systemic violence so prevalent in poor communities of color. She warns that answers do not lie in “investing even-handedness to law or the police…restoring criminal justice to some imaginary constitutional or pre-raced status quo,…[or] increasing resources for community policing.” (P. 105.) Instead the goal is transformative: to “[shrink] the space of governance now reserved for policing, surveillance, and mass incarceration; and fundamentally [transform] the relationship among state, market and society.” (P. 104.)

Despite this searing and far-reaching indictment of a wide swath of scholarship and advocacy, Akbar forgoes calling for either shame or despair. There is no time for either. Instead, by centering the radical, positive, and, love-inspired visions of the Movement for Black Lives1 and foregrounding their vision of “a world in which Black and other communities of color can thrive” (P. 120), Akbar offers hope.

Akbar performs this remarkable feat through a comparison between a central policy platform of the movement, A Vision for Black Lives: Policy Demands for Black Power, Freedom and Justice, and the reports issued by the Obama Administration’s Department of Justice (DOJ) on the policing practices in Ferguson, Missouri and Baltimore, Maryland. These DOJ reports were, of course, written in the wake of the police shootings of Michael Brown and Freddy Gray respectively. The Movement for Black Lives too, finds its spark (but not its roots) in these and other contemporary moments of state violence. But, as Akbar easily proves, the two sets of documents differ radically. There is much to praise in the DOJ reports, and Akbar gives them their due. But in the end, what is missing is the central understanding, at the heart of contemporary racial justice movements that “policing, jail and prison [are] the primary mode[s] of governing Black, poor, and other communities of color in the United States.” Law here is not a fundamentally just system that has gone astray but is instead the scaffolding upon which this violent system is built. (P. 108.)

This is a searing critique and might lead one to turn away or to despair any possibility of forward movement. But fear not. Akbar’s project, like the Vision, is not only “deconstructive and critical” but also “reconstructive and visionary.” (P. 171.) This is clear throughout, but for the purposes of this jot I want to focus on her discussion of the Vision’s calls for abolition and to “invest/divest.” The demand to abolish policing and prisons as we know them is central to the Vision and the Movement. (P. 154.) But abolitionism today, as in the past (see P. 154 fn 268), seeks fundamentally to build as well as to abolish. And “building” is not a static demand for a far-off future but instead an ongoing practice of “gradual decarceration and positive regulatory substitution.” (P. 155.2) So for example, “[m]ovement organizations are ‘practicing abolition every day…by creating local projects and initiatives that offer alternative ideas and structures for mediating conflicts and addressing harms without relying on police or prisons.’” (P. 155.3)

And as the Vision counsels, we must not only divest but invest. Take police in schools as one small example. While the DOJ reports recommend “better training, evaluation, and policies to improve the school police program,” (P. 156) the Vision calls simply for the “end to the criminalization of Black Youth.” (P. 156.) Under this demand, police are implicated in violence and have no place in creating an educational environment where Black Youth can thrive. But leaving (or divesting) isn’t enough. Funds currently invested in “prisons, police and surveillance,” (here police in schools) would be “invested instead [in] restorative services, mental health services, job programs, meaningful healthcare, and education.” (P. 155.)

Next a word on economics and power. While the DOJ reports, and much of the scholarship and advocacy efforts Akbar critiques, focus narrowly on policing and criminal legal systems while avoiding any discussion of the interests served by these systems, both Akbar and the Vision center these issues. Take for example, the work of one movement group, the Youth Justice Coalition (YJC) highlighted by Akbar. The advocacy work Akbar highlights focused on gang injunctions. (Pp. 151-52.) YJC’s analysis demonstrated that injunctions are targeted not at the communities with the highest rates of gang violence but instead at communities that are “majority white, that border white communities, or that are experiencing an influx of whiter and wealthier residents.” (P. 152.) In this frame, the policing tool—gang injunctions—is not actually broken. Instead it is functioning precisely as it is designed to function—in the service of those whose economic and racial interests the system is in fact designed to serve.

Failing to highlight the way that such a strategy promotes the economic interests of those in power “erases how power circulates through and benefits from formal law-making.” (P. 110.) Finally, to divest away from carceral structures that do violence and invest in institutions (created through law) that will help communities thrive, communities do not need mere input but instead power and control. Without this, nothing else matters.

As Akbar counsels at the conclusion of her article, it is time to let loose our hold on the law as it exists, stop tweaking around the edges of a fundamentally violent system, and instead “imagine with social movements” the role law can play in creating a radically better world. If that’s not a cause for hope, I don’t know what is.

Cite as: Wendy Anne Bach, Hope, JOTWELL (November 9, 2018) (reviewing Amna Akbar, Toward a Radical Imagination of Law, 93 NYU L. Rev. 405 (2018)), https://lex.jotwell.com/hope/.

Discovering (Tax) Rights that the Poor Have Post-Welfare Reform

Susannah Camic Tahk, The New Welfare Rights, Brooklyn L. Rev. (forthcoming 2017), available at SSRN.

Professor Susannah Camic Tahk’s newest article is a welcome and optimistic read that opens space for future work (re)constructing the idea that the poor have rights. The New Welfare Rights has much to offer scholars and advocates alike, showing that the poor have under-appreciated rights as taxpayers or as recipients of tax-based benefits. This is an important contribution because it shows the continued possibility of claims framed in terms of “rights” even in the aftermath of welfare reform.

The New Welfare Rights begins appropriately by presenting the rise and fall of rights-based claims to welfare. As Professor Tahk highlights, rights-based claims enjoyed a brief moment in the sun, but the Supreme Court stepped back from the promise of Goldberg v. Kelly, with a series of holdings—Professor Tahk focuses on Dandridge v. Williams and Eldridge v. Matthews—hostile to the idea that the poor have a right to public support. Professor Tahk explains, “After these cases, lawyers working on issues pertaining to government benefits and rights hit a wall.” (P. 12.) So far, this is not exactly new territory. Martha Davis’ masterful history of the rise and fall of welfare rights in her book Brutal Need: Lawyers and the Welfare Rights Movement, 1960-1973 (1993) is the leading account but numerous other articles and books tell a similar story.1 With only a few exceptions2, most scholars and advocates generally accept the notion that the Courts are not receptive to arguments that the poor have rights. Somewhat less strongly stated, in today’s environment it is understood that existing recognized rights are vulnerable and the list of rights is not likely to be expanded through litigation. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 or Welfare Reform Bill, which explicitly stated that welfare was not an entitlement, is treated as final proof that the law has slammed shut on the poor.

What makes The New Welfare Rights so helpful is it shows that such pessimism might not be entirely merited. Following welfare reform, welfare rolls plummeted and did not rise after start of the Great Recession3, but tax benefits to the working poor took off. With bi-partisan support, poor support morphed from welfare claims made by individuals, especially poor mothers and children, into money claimed by the working poor who file tax returns. This transition and the rising importance of the Earned Income Tax Credit (EITC) can rightly be critiqued for moving from a program geared towards supporting individuals as people or as citizens to a system of aid that values only people as workers.4 But as Professor Tahk shows, the move to provide assistance through the tax system “has opened the door to a new set of rights, the same rights that any taxpayer has.” (P. 5.) Post-welfare reform and after the Supreme Court turned away from Goldberg, state constitutions and state courts have been seen as a possible way for the poor to have their rights recognized.5 By showing the ways in which the poor, as taxpayers and as tax filers, have rights that are under-appreciated by advocates who focus solely on direct cash assistance, The New Welfare Rights creates space for additional rights-based claims on behalf of poor people. Professor Tahk notes, “Tax benefits come with rights. These rights accrue to poor recipients of tax benefits much as they do to wealthy individuals or businesses who obtain subsidies through the tax code. These rights arise from participating in the tax system.” (P. 26.)

I will admit I am not entirely convinced by Professor Tahk’s argument that the “tax-based welfare state does not operate along two tiers” and that “it presents a one-tiered vision of equal citizenship.” (P. 27.) A recent article by Professor Wendy Bach does a nice job attacking that argument6 and Matthew Desmond’s essay on the inequality connected to the mortgage interest deduction similarly challenges such a rosy view.7 But by highlighting the procedural rights that are part of the tax system, including those tied to the Taxpayer Bill of Rights, and connecting those rights to poor people (Pp. 35-43), The New Welfare Rights opens our eyes to ways in which to help the poor by leveraging rights built into the tax system. It is an article worthy of attention and is perhaps especially valuable to those of us who are skeptical about the government recognizing and responding positively to rights talk when it comes to poor people.

Cite as: Ezra Rosser, Discovering (Tax) Rights that the Poor Have Post-Welfare Reform, JOTWELL (November 16, 2017) (reviewing Susannah Camic Tahk, The New Welfare Rights, Brooklyn L. Rev. (forthcoming 2017), available at SSRN), https://lex.jotwell.com/discovering-tax-rights-that-the-poor-have-post-welfare-reform/.

Tracing the Roots of the Criminalization of Poverty

That Elizabeth Hinton’s From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America is a must-read for those interested in the origins of the U.S. carceral state has been made clear in a stream of well-deserved and laudatory reviews.See e.g. James Forman, Jr., Fortress America, The Nation, Oct 17, 2016 at 35–37; Imani Perry, Book Review: ‘From the War on Poverty to the War on Crime’, by Elizabeth Hinton, N.Y. Times, May 29, 2016, at 15; Adam Hochschild, Our Awful Prisons: How They Can be Changed, 63 N.Y. Rev. Books 9, 30–32 (2016); Christine Canfield, Book Review: From the War on Poverty to the War on Crime; the Making of Mass Incarceration in America, ForeWord (Jan 23, 2017). Echoing and reinforcing Naomi Murakawa’s The First Civil Right: How Liberals Build Prison America, Hinton persuasively demonstrates that today’s racially-targeted carceral state did not originate in Ronald Reagan’s 1980s. Instead its roots are both older and disturbingly bipartisan.

The architectural foundations of today’s carceral policies were laid during the administrations of Kennedy and Johnson, in the moments when the federal dedication to Community Action, maximum feasible participation and the War on Poverty gave way to the pathologization of black youth. Hinton moves steadily forward from that moment, persuasively indicting along the way not only Kennedy and Johnson but Carter as well. As she reveals, “in full historical context, the policies of the Regan administration marked merely the fulfillment of federal crime control priorities that stemmed initially from one of the most idealistic enterprises in American history .” (P. 4.) But the book is not only relevant for those interested in carceral policies. For scholars of poverty law and social welfare history, and in particular for those who seek to understand the historical origins of what Kaaryn Gustafson termed the criminalization of poverty, Hinton’s book is equally important.Kaaryn Gustafson, Cheating Welfare: Public Assistance and The Criminalization of Poverty (2011).

When one wonders at the punitive and criminalizing nature of current U.S. social welfare policy, from federal housing policies that devastate families, to the over-policing of schools and the resulting school to prison pipeline, to the desperate turn to problem-solving courts to solve seemingly every social ill, Hinton’s book sheds disturbing light. Beginning in the late 1960s, federal policy-makers began not only radically disinvesting in community-based support, but they began integrating policing and surveillance of urban, African American youth into the very fabric of what remained of U.S. urban social welfare programs. Ever-focused on “potentially delinquent” black youth, 1960s Youth Bureaus integrated law enforcement into recreational, education and employment programs. “By the mid-1970s federal disinvestment from the public sector and the remnants of the War on Poverty programs meant that social welfare agencies in urban centers had little choice but to incorporate crime control measures in their basic programming in order to receive funding.” (P. 236.)

Over time, basic and vital social supports, like public housing, became the site for surveillance, policing and criminalization. Take for example the Carter-era Urban Initiatives Anti-Crime program, which “[established] stronger partnerships between social and law enforcement institutions and [devoted] the majority of funds to surveillance and security needs.” (P. 288.) In so doing it “vastly enhanced the scope and power of punitive authorities in the most deteriorated and segregated public housing sites in the country.” By that time, “. . . law enforcement and criminal justice institutions could involve themselves in virtually any community-based effort.” (P. 293.)

By the end of the Reagan era, the story was complete. As Hinton explains, “[w]hen Reagan took office, the rhetoric of community involvement vanished from the domestic policy arenas, never to return. Stemming from the punitive shift in urban social programs during the previous decade, over the course of the 1980s, law enforcement officers came to provide the primary (and in some areas the only) public social services to residents.” (P. 337-38.) No wonder then that today police fill our schools and policing dominates our welfare offices. No wonder that we criminalize addiction and poverty. No wonder too that problem-solving courts have emerged as a desperate attempt to address the deep social welfare needs of whole communities led inexorably into criminal systems. History, it seems, has led us to precisely this moment.

But Hinton’s book offers not only an origin story but also a way forward. For her, solutions lie in returning to ideas deeply embedded in the early War on Poverty. As she states, “[w]e must revisit the principles of community representation and grassroots empowerment that guided the early development of the Great Society in order to begin moving toward a more equitable and just nation.” (P. 336.) We would be wise both to learn the history she teaches and to heed her advice.

Cite as: Wendy Anne Bach, Tracing the Roots of the Criminalization of Poverty, JOTWELL (August 11, 2017) (reviewing Elizabeth Hinton, From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America (2016)), https://lex.jotwell.com/tracing-the-roots-of-the-criminalization-of-poverty/.