Works in Progress Group 8: Process in Practice

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Group 8: Process in Practice

State and local governments rely on the municipal bond market to finance politically unpopular and sometimes unconstitutional carceral projects. Since the 1980s, state and local governments increasingly construct public prisons by relying on tax-free, deregulated municipal debt instruments controlled by the ultra-wealthy. Building on Destin Jenkins’s concept of “bondholder supremacy,” the Article examines how prison construction becomes tax-free wealth accumulation for private capital without public, collective input. Ultimately, the municipal bond market removes decisions about public debt from the political process, circumvents state constitutions, and hides the true cost of building the prison arm of the U.S. carceral state. 

This Article first identifies and conceptualizes the role of municipal debt in growing the U.S. carceral project. Then, the Article uses case studies in New Jersey and Alabama to illustrate how privatized municipal debt interests stymied popular movements seeking to interrupt investment in prisons. In New Jersey, bondholders undermined a community-led campaign to close an emptying youth prison; in Alabama, bondholders facilitated an unpopular, billion-dollar investment in the state’s prisons despite DOJ investigation and rampant 8th amendment violations.

This Article seeks to demystify states’ use of private municipal debt to fund prison construction and explores frames that support collective decision-making for how society invests in public goods.

Manifesting Due Process in Manifestation Determination Reviews
Amy Saji, Georgetown University Law Center

Manifestation Determination Reviews (MDRs) are the sole process that students with disabilities are entitled to when they have violated a code of student conduct that subjects them to exclusionary school discipline. Under the Individuals with Disabilities Education Act (IDEA), local education agencies must conduct an MDR hearing within ten days of any decision to remove or change the placement of a student with a disability. Under the IDEA, MDRs are enforced through procedural safeguards and are crucial in preventing discrimination for incidents that are a manifestation of a student’s disability. However, the varying state practices of implementing MDRs have violated the very procedural safeguards they were meant to protect. The inconsistent execution of MDRs have harmful consequences for students with disabilities and their families are duly unprepared for the consequential nature of an MDR hearing. If and when parents walk into what they expect to be a collaborative school special education meeting, they increase the risk of walking out of an MDR hearing with a referral for expulsion in hand. This article examines discrepancies in state practices surrounding MDRs, detrimental implications for the procedural rights of disabled students and their parents, and solutions that afford students with disabilities the disciplinary protections they are entitled and safeguard parental rights, as intended under federal law.

The Bail Reform Dilemma: When Law & Culture Collide
Joy Radice, University of Tennessee College of Law

Excessive pretrial detention in America and bail practices have come under intense scrutiny over the past few decades. Around 500,000 people are detained pretrial in the United States, as they wait for a magistrate judge to determine if they can be released or if they must pay bail. Pretrial detention abounds despite strong Constitutional protections against detention.

The Bail Reform Dilemma: When Law and Culture Collide adds to a growing body of bail reform scholarship by pulling back the curtain on the culture of unconstitutional bail practices in many courtrooms throughout the county. The qualitative evidence in this article stems from an IRB-approved research project that studied bail decisions in a felony courtroom over a 5-week period in a county in Tennessee. Through a 2-credit course, law students and community members from Community Defense of East Tennessee (CDET) learned together and developed a court observation instrument to conduct the research. This article will reveal a predictable but often undocumented disconnect between law in practice and law on the books. Part I will examine federal bail mandates and Tennessee’s controlling statutes and caselaw. Part II will describe the course structure and IRB research proposal. Part III will summarize the findings of the research. And Part IV will outline a preliminary roadmap to greater courtroom transparency the builds on reforms in other states.

Discussant and Moderator: Charles D. Weisselberg, University of California, Berkeley School of Law