Swan on Exclusion Laws

Sarah Lynnda Swan (Florida State University - College of Law) has posted Exclusion Diffusion (Emory Law Journal, Forthcoming) on SSRN. Here is the abstract:

 

Over the last few decades, municipalities and local governments have increasingly turned to banning and exclusion laws as a means of crime prevention. Banning and exclusion laws prohibit an individual from accessing a particular area or building for a prescribed period of time (often one to five years). Violations frequently trigger penalties of up to a year in jail. Because they are focused on crime prevention, no actual wrongdoing is necessary to trigger these bans: many bans are issued on the basis of mere suspicion.

Banning and exclusion laws most typically forbid suspicious individuals from being in public spaces, like city parks or neighborhoods. But they also extend beyond just public spaces, into spaces that mix public and private aspects, like private businesses open to the public, and public housing.

And now, banning and exclusion practices have diffused out into the purely private realm. Through a recent trend of local ordinances, state legislation, and ad hoc initiatives, many private landlords have been empowered to ban a tenant’s invited guests from a rental home, on virtually any basis. Landlords can exercise this power solely on personal fiat, though they often do so as part of partnering with local police.

This Article is the first to surface and critique this expansion of banning and exclusion laws into the private realm of the home. As private rental homes join city streets, neighborhoods, parks, private businesses, and public housing as yet another site of state-driven exclusion and banning, spatial governance becomes nearly totalized. Although carefully constructed exclusionary mechanisms can be a justified crime-prevention tool in certain limited circumstances, landlords’ new exclusionary powers, as currently constituted, all but guarantee they will be exercised in the same racially discriminatory manner as prior forms of exclusion from public spaces. These enhanced exclusionary powers increase displacement, evictions, and arrests; link associational rights to property ownership in troubling ways; negatively impact family formation; and infringe upon the liberty and privacy rights of already vulnerable populations. For these reasons, this exclusionary expansion should be curtailed.