[link removed]

Since peaking at over 1.5 million people in 2009, the U.S. prison population has declined, but at the achingly slow pace of approximately 1 percent annually. At this rate, it will take until nearly the end of the century to get back to the incarceration levels of the late 1980s.

What’s the holdup? I’m going to let you in on one of the dirty little secrets of our criminal justice system: It pays to punish. A new Brennan Center report

[link removed]

published today dives deeply into the perverse financial incentives that drive excessive punishment at all levels of the system. The result is mass incarceration and a heavy financial burden on those least able to pay.

The examples of perverse financial incentives are many. Some local governments, for instance, collect fees for acting as intermediaries between the federal government and for-profit detention facilities. Others build or expand their own public jails to provide overflow space for people detained by ICE or the U.S. Marshals Service, which provide the added financial boon of paying for those beds at a higher rate than what the jails receive for those incarcerated by the county.

Local governments have also overindulged in fines and fees, sometimes building budgets around them. Excessive financial penalties needlessly entangle poor people in the criminal justice system. Worse, unnecessary interactions between police and citizens — driven by pressure to raise revenue rather than improve public safety — create situations in which miscommunication or poor decision-making can lead to tragedy. The most notorious example of “user-funded justice” came to light in the wake of the killing of Michael Brown in Ferguson, Missouri, where state law permits local governments to source a shocking 20 percent of their revenue from fines and fees.

Civil asset forfeiture, originally intended to strip ill-gotten gains from drug kingpins, is another problem. Law enforcement agencies now seize cash, vehicles, and even homes on a mere suspicion that the property was connected to a crime. The process has led to the appearance, and sometimes the reality, of corruption. An investigation revealed that Minnesota’s Metro Gang Strike Force stopped and searched people who were clearly not involved in gang activity and then allowed the officers’ families to borrow or buy seized televisions, tools, appliances, and jet skis.

This system of perverse financial incentives burdens people of color especially. Black and Latino people are disproportionately represented in cities and towns that rely on fines and fees for revenue. According to a 2019 study, arrests of Black and Latino people are more likely to be associated with increased forfeiture revenue than arrests of white people.

Chasing revenue distracts law enforcement from its core mission: protecting the public and solving crimes. A 2020 study found that an increase in the share of revenue from fines, fees, and forfeitures was associated with decreases in clearance rates for both violent and property crimes.

Incarceration and financial penalties should not be used as solutions to budget shortfalls of agencies and local governments. If we are to solve the problem of excessive punishment, we will have to address the role that financial incentives play in maintaining the status quo.





The Bogus Legal Theory That Could Turn Democracy Upside Down

This fall, the Supreme Court will hear a case out of North Carolina that invokes the so-called “independent state legislature theory” — a constitutional interpretation that is as dangerous as it is flat-out wrong. It purports to give state legislatures near absolute power over federal elections, enabling them to enact laws that make it harder to vote and easier to interfere with election processes and results. “The independent state legislature theory has no legal or historic validity — it is a fever dream of partisan activists who are desperate to find some pretext to empower certain state legislatures for their political advantage,” Eliza Sweren-Becker writes. “This perverse reading of the Constitution cannot be allowed to undermine American elections.” LA TIMES

[link removed]

The Electoral Count Act, Explained

The January 6 hearings have revealed how Donald Trump and his allies sought to exploit weaknesses in the Electoral Count Act to disrupt the peaceful transfer of power. The law determines how the Electoral College selects the president and vice president, and there is bipartisan support for reform proposals that would address the law’s vulnerabilities. A new Brennan Center explainer details the Electoral Count Act’s provisions and shortfalls, how these were used to try to undermine the 2020 presidential election, and what Congress can do to avoid future sabotage attempts. Read more

[link removed]

Bolstering State-Level Defenses for Individual Rights

Americans have long looked to the Constitution and the Supreme Court as the best means to safeguard their freedoms. However, the U.S. Constitution sets only a minimum for individual rights that states must protect, not a maximum. State courts can and often do interpret their state’s constitution to offer greater rights and protections than the federal constitution in areas ranging from abortion access to redistricting. “With the increasingly radicalized Supreme Court, it’s time for American society — and the U.S. legal system — to turn more attention back to state courts,” Alicia Bannon writes. POLITICO

[link removed]

A New Path to Firearm Safety

Since New York’s century-old handgun licensing requirement was struck down by the Supreme Court last month, the state has taken a novel approach to firearm safety. Alongside implementing stricter training requirements for gun permits and other reforms, it has enacted a new law requiring gun owners to obtain express permission to carry their guns on private property. This includes homes, restaurants, offices, stores, and so on. New York’s response is an astute one. The Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen may have significantly and dangerously expanded the Second Amendment, but property rights are recognized by the Constitution as well. “The vast majority of people are unaware that the current default permits people to carry guns onto their property without their say-so,” Eric Ruben writes. “The new legislation would flip this default setting, empowering New Yorkers to have more control over their own property.” NY DAILY
NEWS

[link removed]

The Supreme Court’s Blow to Climate Change Regulation

The Supreme Court’s ruling last week limiting the EPA’s power to regulate carbon emissions in response to climate change is a radical departure from long-established understandings of the role of government. More broadly, the decision in West Virginia v. Environmental Protection Agency curtails regulators’ ability to engage in evidence-based policymaking to serve the public. Lawmakers must now amend countless laws to expressly authorize agencies to make key decisions — a task that Congress lacks not just the will but also the in-house expertise to achieve. “To fully grapple with contemporary societal needs, Congress needs to increase not only its technical capacity but also its democratic responsiveness. And over the long term, Congress needs to take meaningful steps to fix our democracy,” Mekela Panditharatne and Martha Kinsella write. READ MORE

[link removed]

Strategic Uses of the 10th Amendment

The 10th Amendment, which divides power between the federal government and the states, has been used in recent decades by Democrats and Republicans alike to challenge executive authority. For instance, federalism arguments have been cited to shield sanctuary cities that don’t want to enforce immigration law, but they have also been used to allow states to forgo federal background check requirements for prospective gun purchasers. In a wide-ranging discussion, Andrew Cohen and Columbia law professor Jessica Bulman-Pozen delve into the selective invocations of the 10th Amendment across the political spectrum, how this doctrine applies to states’ power over local governments, and what federalism cases to look out for in the future. READ MORE

[link removed]





News

Tom Wolf on the consequences of adopting the independent state legislature theory // ABC NEWS

[link removed]

Alicia Bannon on the need for public trust in courts // BOSTON GLOBE

[link removed]

Michael Li on the threat of partisan gerrymandering // CNET

[link removed]

Michael Waldman on the meaning of “All men are created equal” in the Declaration of Independence // ASSOCIATED PRESS

[link removed]

Feedback on this newsletter? Email us at [email protected]

mailto:[email protected]





[link removed]

Brennan Center for Justice at NYU School of Law

120 Broadway, Suite 1750 New York, NY 10271

646-292-8310

tel:646-292-8310

[email protected]

mailto:[email protected]

Support Brennan Center

[link removed]

Want to change how you receive these emails or unsubscribe? Click here

[link removed]

to update your preferences.

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]