Your weekly source for analysis and insight from experts at the Brennan Center for Justice at NYU School of Law

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The Briefing

Courts have increasingly imposed fees and fines on criminal defendants — a practice that disproportionately hurts people of color and low-income communities. Over the past decade, many states and local jurisdictions have grown more dependent on these monies to fund their court systems. But the practice is costly, inefficient, and wasteful, according to a new report ([link removed]) by the Brennan Center. The study finds that counties were spending a high proportion of their fee and fine revenue on collection and enforcement costs, including jailing people who couldn’t pay, rather than on efforts to improve public safety. The report found that between 2012 and 2018, just three states amassed more than $1.8 billion in uncollected debt from fees and fines.

In addition, the report notes that many of the costs associated with implementing fees and fines are not being tracked ([link removed]) at all, which leads to major gaps in the available data. “Our numbers show alarming inefficiency,” says Matthew Menendez, counsel in the Brennan Center’s Justice Program and a co-author of the report. “Keeping people stuck in a cycle of debt costs governments money, with nothing in return.”

Constitution

The Electoral College’s Racist Origins

White voters have long had outsized influence on U.S. elections (and thus on national politics) due to voter suppression of racial minorities through tactics ranging from poll taxes to voter ID laws to outright violence. In a new piece for The Atlantic, Brennan Center Fellow and Counsel Wilfred U. Codrington III argues that the Electoral College is another institution that has historically boosted white political power.

“Of the considerations that factored into the Framers’ calculus [when creating the Electoral College], race and slavery were perhaps the foremost,” writes Codrington. “What’s clear is that, more than two centuries after it was designed to empower southern whites, the Electoral College continues to do just that. The current system has a distinct, adverse impact on black voters, diluting their political power.” // THE ATLANTIC ([link removed])

How Conservatives Turned the “Color-Blind Constitution” Against Racial Progress

Progressives once subscribed to the idea of a “color-blind Constitution” as the legal framework for extending citizenship and equal rights to Black Americans. But now, some conservatives are “weaponizing” that idea to protect structural advantages for white Americans, argues Theodore R. Johnson, senior fellow at the Brennan Center.

“What was once a legal framework for justifying the extension of citizenship and rights to oppressed black Americans is now an argument for the unconstitutionality of any measure intended to address the harms caused by the state-sanctioned denial of those rights,” writes Johnson. // THE ATLANTIC ([link removed])

Democracy

Here We Go Again: Politicians Lying About Voter Fraud

After losing his election, Kentucky Gov. Matt Bevin made baseless claims of voter fraud, threatening the legitimacy of the outcome of the race. Unfortunately, this approach is not new, write the Brennan Center’s Myrna Pérez and Rebecca Ayala, and voters can expect to see some politicians putting the old canard to use in the runup to the 2020 election.

The clear fact remains: In-person voter fraud is virtually nonexistent ([link removed]), and studies and court decisions have shown that it poses no real threat to the integrity of U.S. elections. But these unfounded voter fraud claims are still often used to justify legislation such as strict voter ID laws. Worse, these laws disproportionately impact voters of color and low-income voters, who may not have access to valid forms of identification. // READ MORE ([link removed])

States Push Back Against ICE Courthouse Arrests

Since President Trump took office, U.S. Immigration and Customs Enforcement officers have dramatically increased their presence in state courthouses. Advocates have documented the chilling effect ICE’s presence has on courthouse access — deterring victims, survivors, and witnesses from pursuing justice and using court services — and the resulting harm it does to the justice system. In response, nearly 70 former state and federal judges sent a letter to ICE last December, calling for an end to courthouse arrests. ICE has repeatedly rejected these appeals, but several states, most recently Oregon, have taken action in 2019 against courthouse immigration arrests, reports Douglas Keith, counsel in the Brennan Center’s Democracy Program. // READ MORE ([link removed])

New Jersey’s Chance to Expand Democracy

More than 80,000 people in New Jersey live, work, pay taxes, and raise families in the state — but are unable to vote because they have not completed their probation and parole. Now, however, New Jersey has a historic opportunity to change that, reports Eliza Sweren-Becker, counsel in the Brennan Center’s Democracy Program. // READ MORE

Yesterday, the New Jersey Assembly passed a bill that would restore voting rights to New Jersey residents with prior convictions. A companion bill has already been introduced in the Senate. Nevada and Colorado, for example, enacted policies this year to restore voting rights. // READ MORE ([link removed])

Coming Up

- Next Tuesday, December 3, Supreme Court lawyer and former Acting Solicitor General Neal Katyal joins the Brennan Center in New York City for a discussion about the origins of impeachment in the Constitution, the Ukraine scandal, and how this historic moment will shape the future of our country. // RSVP ([link removed])

- At the Brennan Center, we are fighting to make democracy work, for everyone. If you are interested in supporting that work, note that next week is #GivingTuesday — when your donation will be matched $1-for-$1. Look for an email or information on our social media channels next week on how you can participate.

News

- Alicia Bannon on how states can reform their judicial selection processes to restore public confidence in the judicial system // CHRISTIAN SCIENCE MONITOR ([link removed])

- Ángel Díaz on how New York City is exempting the NYPD from rigorous oversight of algorithm use // GOTHAMIST ([link removed])

- Lauren-Brooke Eisen on the effect of the First Step Act and the need for more criminal justice reform // NBC NEWS ([link removed])

- Matthew Menendez on how criminal justice fees and fines disproportionately impact communities of color // COLORLINES ([link removed])

- Faiza Patel and Laura Hecht-Felella on Facebook’s new oversight board for content moderation // JUST SECURITY ([link removed])

- Myrna Pérez on the relevance of voting rights in last week’s Democratic debate in Georgia // THE INDEPENDENT ([link removed])

Have an issue you'd like us to cover? Feedback on this newsletter? Email us at [email protected]
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The Brennan Center for Justice at NYU School of Law is a nonpartisan law and policy institute that works to reform, revitalize – and when necessary defend – our country’s systems of democracy and justice.

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