Group #6 Criminal Law &Procedure
• Protest Exceptionalism
Amber Baylor, Columbia Law School
The consequences of anti-protest legislation on highly surveilled communities are alarming. Anti-protest legislation is often billed as applying only in the extreme circumstances of dangerous mass movements and large-scale civil disobedience. Examples include a Virginia bill that heightens penalties for a “failure to disperse following a law officer’s order”; a Tennessee law directing criminal penalties for “blocking traffic”; a bill in New York criminalizing “incitement to riot by nonresidents.” These exceptionalism arguments provide justification for passage even in states otherwise hesitant to expand public order criminal regulation.
While existing critiques of these laws emphasize the chilling effects on free speech, this analysis masks the threat of such legislation in the everyday lives of already targeted people and communities. In actuality, the application of “anti-protest” legislation is not limited to “exceptional” circumstances: despite not falling into either stated justification, increasing surveillance and public order regulation hit Black, Latinx, and other targeted communities the hardest.
This article examines the construction of mass protest law exceptionalism and advocates for using resistance frameworks to better understand the burdens and consequences borne by targeted communities. This analysis incorporates text of recent mass anti-protest legislation, proponents’ arguments in media, and debate in legislative sessions. This framing exposes the broad applicability of these laws, surfaces the thin line between mass protest and everyday public order regulation in targeted communities, and demonstrates the high stakes of ignoring this blurred line when considering mass anti-protest criminal laws.
• Calibrating the Excessive Fines Clause
Yasmine Tager, University of California Berkeley Law School
In both Graham v. Florida and Miller v. Alabama, the Supreme Court categorically banned specific sentencing practices against youth. This article argues that the Court should extend this categorical approach to review mandatory fines and fees assessed against youth under the excessive fines clause. It further argues that, following the Court’s finding that children are constitutionally different from adults, the practice should be prohibited. Like the sentencing practices at issue in Miller and Graham, a national consensus has developed against fines and fees, and penological justifications fail to explain the practice in the youth context.
This article also calls into question the constitutionality of discretionary fines and fees in juvenile court. The article argues that the Court should adopt a more appropriate proportionality test in reviewing these economic sanctions—one that assigns meaningful weight to the juvenile system’s rehabilitative purpose. As currently articulated, the Eighth Amendment proportionality test zeroes in on the juvenile court’s punishment purpose without reference to its rehabilitative mission. Accepting that both goals have a place in juvenile court, this article calls for a more holistic proportionality test. After weighing whether fines and fees imposed in juvenile court are so burdensome as to sacrifice rehabilitation in its entirety, this part ultimately questions the practice’s constitutionality.
At its core, this article calls into question the constitutionality of mandatory and discretionary economic sanctions against youth and calls for their elimination.