Abstention in the Time of Ferguson

A group of demonstrators (R) yells in front of police officers during a protest march on West Florissant Avenue in Ferguson, Missouri on August 9, 2015. A day of peaceful remembrance marking the anniversary of 18-year-old black teen Michael Brown’s killing by police in the US city of Ferguson came to a violent end on August 9 as gunfire left at least one protester injured. AFP PHOTO / MICHAEL B. THOMASMichael B. Thomas/AFP/Getty Images

Of the roughly 450,000 Americans who are in local jails awaiting trial, many are there because they are poor. When people with economic resources are arrested, they can sometimes pay bail or fines and go on with their lives. Those who cannot afford to pay meet a different fate. Some remain in jail for days or weeks while waiting to see a judge. Some remain there for months because courts did not take their indigence into account when setting or reviewing bail. If they plead guilty in order to leave jail, this often triggers a new set of fines and fees that they cannot afford to pay. Failure to pay results in a new arrest. The cycle starts anew.

This Article is about federal lawsuits challenging various state and local regimes that criminalize poverty and a threshold barrier that has blocked some such federal suits. Under Younger v. Harris — and the doctrine of Younger abstention — federal courts may not disrupt a state criminal proceeding by means of an injunction or declaratory judgment. Federal courts’ reluctance to resolve such cases is predicated on federalism interests. Traditionally, however, federal courts have nonetheless entertained suits to stop or prevent irreparable harm, especially where an underlying state process provides an inadequate means to raise federal constitutional claims. When a state is engaging in a structural or systemic constitutional violation, federalism interests diminish and the risk of irreparable harm is grave.

This Article argues for an exception to Younger abstention when litigants challenge structural or systemic constitutional violations. “Structural” means a flaw that infects a judicial process’s basic framework in incalculable ways, such as denial of counsel at a critical stage or a judge’s financial interest in the outcome. “Systemic” means a flaw that routinely impacts litigants by way of a policy, pattern or practice, or other class-wide common set of violations. Because the United States Supreme Court has already made clear that “inadequate” state proceedings should not stand in the way of federal intervention, this exception can be adopted and implemented without major changes to existing Supreme Court precedent. No one should be in jail or punished because she is poor. Federal courts should ensure that this substantive right has practical effect.


* Associate Professor, Emory University School of Law. For helpful discussions and edits, thanks to Robert Ahdieh, Samuel Bray, Dorothy Brown, Erin Delaney, Justin Driver, Richard Fallon, Timothy Holbrook, Aziz Huq, Kay Levine, James Pfander, Martin Redish, Bertrall Ross, Robert Schapiro, Joanna Schwartz, Norm Spaulding, A. Benjamin Spencer, and Aaron Tang. Thank you as well to participants at the U.C. Davis School of Law Faculty Colloquium; the University of Chicago Constitutional Law Colloquium; the Loyola Law School Constitutional Law Colloquium; the Louisiana State University, Paul M. Herbert Law Center Faculty Colloquium; the Midwest Law and Economics Association Annual Meeting; and the Northwestern Pritzker School of Law Constitutional Law Colloquium. I am indebted to Chloe Cobb, Karla Doe, Seena Forouzan, Matthew Rice, Sangita Sahasranaman, and Talia Wagner for stellar research assistance. This Article is dedicated to the people of St. Louis County, Missouri. Interviewing residents there during the course of legal research in December 2015 unearthed the seeds and soul(s) of this Article.

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