Wednesday, June 26, 2013
Nirej Sekhon (Georgia State University College of Law) has posted Punitive Injunctions (U. Penn. J. L. & Soc. Change, Forthcoming) on SSRN. Here is the abstract:
In theory, courts are only supposed to incarcerate an individual after having provided her with the host of procedural protections required by constitutional criminal procedure – appointed counsel and proof beyond a reasonable doubt to name just two. In practice however, individuals are routinely incarcerated for violating injunctions to which criminal procedure’s protections do not apply. At any given time, millions are subject to such injunctions and hundreds of thousands are in jail or prison for having violated one. Child support orders and probation orders are the most common examples of what this article terms “punitive injunctions.” Just last term, in Turner v. Rogers, the Supreme Court once again concluded that constitutional criminal procedure does not apply to the enforcement of such injunctions. This article argues that courts have inordinately used punitive injunctions against the poor and socially marginal. Punitive injunctions expand the pool of individuals who may be incarcerated and extend the time any particular individual is subject to custodial supervision. Contrary to official accounts, punitive injunctions do not meaningfully advance remedial or rehabilitative purposes. Rather, their widespread use demonstrates that the United States has unjustifiably taken a punitive course in managing poverty. Extending constitutional criminal procedure to the enforcement of punitive injunctions would be better than the status quo. But it would only be marginally better. For that reason, this article proposes farther-reaching reforms that would limit courts’ power to impose such injunctions in the first place.