Labor’s New Localism

Millions of workers in the United States, disproportionately women, immigrants, and people of color, perform low-paid, precarious work. Few of these workers can improve their workplace standards because the National Labor Relations Act (“NLRA”) does not sufficiently protect their right to form unions and collectively bargain. Lacking sufficient influence in federal and state government to strengthen labor and employment law, unions and worker centers have increasingly sought to build power in cities. The shift to local labor lawmaking has delivered local minimum wage, paid sick leave, and fair scheduling ordinances covering millions of low-wage workers, as well as groundbreaking unionization and collective bargaining agreements, including in regions of the United States historically hostile to unions. This has positioned cities as a primary staging ground for labor law reform.

This Article examines this trend as a rejuvenated labor localism and this trend’s effects on state and local government law and labor and employment law. Labor localism advances the democratic values of labor and local law by channeling worker and community protests and bargaining through the direct democracy mechanisms of cities, instead of or in addition to the NLRA. While provoking fierce employer campaigns seeking state preemption of local lawmaking, labor localism can often manage these state-local conflicts by engaging in state law reform and pivoting to adjacent areas. Modest home rule reform can improve its stability and reach and, contrary to conventional wisdom, improve local accountability. Labor localism, finally, reveals the central roles of localism in enabling a bottom-up reform effort to counteract the weaknesses of federal labor law and in safeguarding democratic norms in the United States.

* Associate Professor, University of Miami School of Law. The author would like to thank Kate Andrias, Jennifer Breen, Richard Briffault, Scott Cummings, Nestor Davidson, Catherine Fisk, Kati L. Griffith, Patrick Gudridge, Laura Huizar, César F. Rosado Marzán, Joseph McCartin, Michael Oswalt, Richard Schragger, and Jocelyn Simonson for their insightful comments on an earlier draft, and Andrew Denny, Shanzay Pervaiz, and the Southern California Law Review editors for excellent research assistance. This project also benefitted from feedback at the 9th Annual State & Local Government Works-in-Progress Conference, the 2020 Southeastern Association of Law Schools Conference, and the University of Miami School of Law Legal Theory Workshop. All errors are the author’s.

Detention, Disenfranchisement, and Doctrinal Integration

On any given day, approximately 2.3 million individuals are incarcerated, many of whom are eligible voters and are disproportionately people of color.[1] The majority of state and local governments do not affirmatively provide incarcerated voters with special accommodations to ensure that they are able to exercise their right to vote, leaving many effectively disenfranchised. What is the constitutional harm to these persons: Is the harm the denial of the right to vote, which society owes to every eligible citizen? Or the failure of the duty of care that the state owes to every prisoner in its charge? Is the constitutional harm the denial of Fourteenth Amendment equal protection? Or the imposition of Eighth Amendment cruel and unusual punishment? Or is it somewhere in between, or in some sense, all of these? Controlling Supreme Court jurisprudence approaches this question through a limited standalone application of the Equal Protection Clause. This Article revisits the controlling interpretation of the right to vote in jails and develops an alternative interpretation that integrates the Due Process Clause and Equal Protection Clause to fully account for the liberty-based harms specific to incarcerated voters. At the core of the current interpretation lies a fundamental misconception that fails to recognize both the profundity and centrality of the right to vote and the inequalities between incarcerated and non-incarcerated individuals. For detainees, an interpretation integrating substantive due process and equal protection might clarify the contours of the state’s obligation to ensure protection of this fundamental right.


           [1].       Press Release, Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2020, Prison Pol’y Initiative (Mar. 24, 2020), https://www.prisonpolicy.org/reports/pie2020.html [https://
perma.cc/Z7G2-FASF]; Chris Uggen, Ryan Larson, Sarah Shannon & Arleth Pulido-Nava, Sent’g Project, Locked Out 2020: Estimates of People Denied Voting Rights Due to a Felony Conviction 8 fig.1 (2020), https://www.sentencingproject.org/publications/locked-out-2020-estimates-of-people-denied-voting-rights-due-to-a-felony-conviction/#III.%20Disenfranchisement%20in%202020 [https://perma.cc/8DTP-KNDC] (indicating that 25% of people in prison are disenfranchised).

* Assistant Professor, University of Baltimore School of Law. I would like to sincerely thank Aderson B. Francois, Deborah Epstein, Robin West, Colin Starger, Michele Gilman, Lisa Iglesias, Brandon Garrett, and Brandon Figg for their insightful comments and suggestions. Thanks also to the participants of the NYU Clinical Writer’s Workshop and Mid-Atlantic Clinical Writer’s Workshop for their invaluable feedback on early drafts. I am also immensely grateful for the research support provided by three brilliant students I had the pleasure of teaching while serving as a fellow in the Georgetown University Law Center’s Civil Rights Clinic: Alexander Afnan, Rachel Guy, and Olivia Grob-Lipkis. Finally, many thanks to the editors of the Southern California Law Review for their assistance bringing this Article to publication.

Closing International Law’s Innocence Gap

Over the last decade, a growing number of countries have adopted new laws and other mechanisms to address a gap in national criminal legal systems: the absence of meaningful procedures to raise post-conviction claims of factual innocence. These legal and policy reforms have responded to a global surge of exonerations facilitated by the growth of national innocence organizations that increasingly collaborate across borders. It is striking that these developments have occurred with little direct help from international law. Although many treaties recognize extensive fair trial and appeal rights, no international human rights instrument—in its text, existing interpretation, or implementation—explicitly and fully recognizes the right to assert a claim of factual innocence. We label this omission international law’s innocence gap. The gap appears increasingly anomalous given how foundational innocence protection has become at the national level, as well as international law’s longstanding commitment to the presumption of innocence, fair trial, and other criminal process guarantees. We argue the time has come to close this innocence gap by recognizing a new international human right to assert post-trial claims of factual innocence.

* L. Neil Williams, Jr., Professor of Law, Duke University School of Law and Director, Wilson Center for Science and Justice, Duke University School of Law. bgarrett@law.duke.edu.                 

† Harry R. Chadwick, Sr. Professor of Law, Duke University School of Law and Permanent Visiting Professor, iCourts: Centre of Excellence for International Courts, University of Copenhagen. helfer@law.duke.edu.                            

‡ Clinical Professor of Law, Director, International Human Rights Clinic, Duke University School of Law. huckerby@law.duke.edu.   

          

Small Fines and Fees, Large Impacts: Ability-to-Pay Hearings

Imagine, for example, that a woman fails to have auto insurance,[1] which carries a minimum fine of $500 in Massachusetts.[2] In addition, she will be charged a $500 payment or one full year premium of compulsory insurance (whichever is larger), a $45 late fee and a $25 filing fee if she chooses to request a hearing, and a $500 fee to reinstate her license and registration after having them suspended for sixty days—for a minimum total of $1,500 with the possibility of receiving up to one year in jail.[3] She is also one of about forty-six percent of Americans who cannot cover a $400 emergency expense upfront,[4] so the legal financial obligations (“LFOs”) that she owes as part of her fine remain unpaid, making matters worse. Her driver’s license was suspended due to not paying, so she risks illegally driving to her job or taking public transportation if there is any available, which imposes further economic burdens.[5] A background check shows not only her conviction, but also that her case is still active because of the unpaid LFOs.[6] Also, the LFOs have ruined her credit, causing higher interest rates on her credit cards and loans and making permanent housing harder to find even if she could afford the rent.[7] Now there is a warrant for her arrest for the unpaid LFOs.[8] If she is picked up and jailed, she will miss her interview for a second job, lose her temporary housing, and possibly lose custody of her children.[9]

Jurisdictions across the country use fines and fees to help finance elements of their criminal justice and court systems.[10] These fines and fees are referred to as LFOs and include, but are not limited to, traffic infractions, felony-related fines, and court fees, such as filing fees, attorney dues, and transcript costs.[11] Many of these are levied regardless of one’s guilt.[12] Although some of these LFOs may be small when isolated, they impose major burdens on low-income individuals, their families, and the government.[13] This creates a “poverty penalt[y]” because these charges are imposed regardless of one’s income.[14] Excessive charges on low-income individuals create larger long-term costs as criminal justice debt can increase the likelihood of later criminal activity.[15] Thus, statutes and courts imposing these large, unpayable LFOs on indigent defendants who may or may not be convicted of a crime burdens the individuals, their families, and even governments.[16] This issue is rapidly transforming and gaining attention in courts,[17] academia,[18] and legislatures[19] with recent advocacy and legislation changes, such as the elimination of juvenile fines[20] and the abolishment of driver’s license suspension for failure to pay in some states.[21] One possible solution to this issue is to require ability-to-pay determinations (“ATP determinations”) before a court can impose LFOs on indigent criminal defendants. The California Supreme Court, in People v. Kopp, is currently determining whether courts must consider a defendant’s ability to pay before imposing LFOs, and if so, which party bears the burden of proof regarding the defendant’s inability to pay.[22]


          [1].      The most recent data from the Insurance Research Council estimates that approximately over twelve percent of the driving population, or one in eight drivers, is uninsured. David Corum, One in Eight Drivers Uninsured, Ins. Rsch. Council (Mar. 22, 2021), https://www.insurance-research.org/sites/def
ault/files/downloads/UM%20NR%20032221.pdf [https://perma.cc/HUD5-YLDN].

          [2].      Mass. Gen. Laws Ann. ch. 90, § 34J (West 2021).

          [3].      Id.; see also Mark Fitzpatrick, Penalty for Driving Without Insurance in Massachusetts,ValuePenguin (Mar. 16, 2021), https://www.valuepenguin.com/auto-insurance/massachusetts/penalti
es-driving-without-insurance [https://perma.cc/6XBN-X7XL].

          [4].      Bd. of Governors of the Fed. Rsrv. Sys., Report on the Economic Well-Being of U.S. Households in 2015, at 1 (2016) (“Forty-six percent of adults say they . . . could not cover an emergency expense costing $400 . . . .”); see also Philip Alston, Report of the Special Rapporteur on Extreme Poverty and Human Rights on His Mission to the United States of America (2018); Kathryn Vasel, 6 in 10 Americans Don’t Have $500 in Savings, CNN Money (Jan. 12, 2017, 8:21 AM), https://money.cnn.com/2017/01/12/pf/americans-lack-of-savings/index.html [https://perma.
cc/JFY4-DUSK] (“Nearly six in [ten] Americans don’t have enough savings to cover a $500 or $1,000 unplanned expense . . . .”); The Pew Charitable Trs., What Resources Do Families Have for Financial Emergencies? 1 (2015) (“One in [three] American families reports having no savings at all, including [one] in [ten] of those with incomes of more than $100,000 a year.”).

          [5].      Alicia Bannon, Mitali Nagrecha & Rebekah Diller, Brennan Ctr. for Just., Criminal Justice Debt: A Barrier to Reentry 5 (2010); see, e.g., Fares Overview, Mass. Bay Transp. Auth., https://www.mbta.com/fares [https://perma.cc/F8Q4-94ZZ] (costing $90 for a monthly “LinkPass”); Fares, Passes, and Discounts, Metro, https://www.metro.net/riding/fares [https://perm
a.cc/AP3F-2CUV] (regularly costing $100 for a thirty-day Los Angeles “Metro Rail Pass”); Everything You Need to Know About Fares and Tolls in New York, Metro. Transp. Auth., https://new.mta.info/
fares [https://perma.cc/95F7-XTLD] (costing $127 for a thirty-day “Unlimited New York City MTA MetroCard”); Unlimited Ride Passes, Chi. Transit Auth., https://www.transitchicago.com/passes [https://perma.cc/BN5U-6UZC] (costing $75 for a thirty-day “CTA/Pace Pass”); Cost to Ride, Wash. Metro. Area Transit Auth., https://www.wmata.com/fares/basic.cfm [https://perma.cc/3JGW-QTX
B] (costing $58 for a seven-day “Unlimited WMATA Pass”); Jonathan English, Why Public Transportation Works Better Outside the U.S., Bloomberg CityLab (Oct. 10, 2018, 6:00 AM), https://
http://www.bloomberg.com/news/articles/2018-10-10/why-public-transportation-works-better-outside-the-u-s [https://perma.cc/45QB-ZVX2] (comparing public transportation in the United States to that of other countries to explain America’s poor public transport system).

          [6].      Theresa Doyle, Opinion, End the Cycle of Debt for Indigent Defendants, Seattle Times (Feb. 20, 2016, 4:01 PM), https://www.seattletimes.com/opinion/end-the-cycle-of-debt-for-indigent-defendan
ts [https://perma.cc/84XM-75ED].

          [7].      Id.

          [8].      See, e.g.,Wash. Rev. Code § 10.01.180(1) (2016) (allowing arrest warrants for defaulting); Mass. Gen. Laws Ann. ch. 276, § 31 (West 2021) (allowing default warrants solely due to a person’s failure to pay a fine, assessment, court cost, restitution, support payment, or other such amount); Doyle, supra note 6.

          [9].      Doyle, supra note 6.

        [10].      See Council of Econ. Advisers, Fines, Fees, and Bail: Payments in the Criminal Justice System that Disproportionately Impact the Poor 1 (2015). In 1991, just twenty-five percent of inmates reported receiving court-ordered fines and sanctions, but by 2004, sixty-six percent did. Alexes Harris, A Pound of Flesh: Monetary Sanctions as Punishment for the Poor 23 (2016).

        [11].      Anne Teigen, Nat’l Conf. of State Legislatures, Assessing Fines and Fees in the Criminal Justice System 1 (2020).

        [12].      Fair & Just Prosecution, Fines, Fees, and the Poverty Penalty 1 (2017).

        [13].      Id. at 1–2.

        [14].      Rebecca Vallas & Roopal Patel, Sentenced to a Life of Criminal Debt: A Barrier to Reentry and Climbing Out of Poverty, 46 Clearinghouse Rev. J. Poverty L. & Pol’y 131, 133 (2012).

        [15].      Exec. Off. of Pub. Safety & Sec., Report of the Special Commission to Study the Feasibility of Establishing Inmate Fees 4 (2011), https://www.mass.gov/doc/report-of-the-special-commission-to-study-the-feasibility-of-establishing-inmate-fees-july-2011/download [https://perma.cc/
RK7U-GCHM]; see also Helen A. Anderson, Penalizing Poverty: Making Criminal Defendants Pay for Their Court-Appointed Counsel Through Recoupment and Contribution, 42 U. Mich. J.L. Reform 323, 372–73 (2009).

        [16].      See Council of Econ. Advisers, supra note 10, at 3–4.

        [17].      See infra Part II; e.g., Cain v. White, 937 F.3d 446, 454 (5th Cir. 2019) (finding that judges’ exclusive authority over how the Judicial Expense Fund (“JEF”), a fund that derived money from fines and fees imposed on defendants to pay for court expenses, was spent violated due process); State v. Blazina, 344 P.3d 680, 680 (Wash. 2015) (holding that Washington trial courts have an obligation to conduct an individualized inquiry into a defendant’s ability to pay discretionary and most mandatory LFOs); State ex rel. Pedersen v. Blessinger, 201 N.W.2d 778, 782 (Wis. 1972) (finding that “one who has been convicted of a crime and fined is not to be imprisoned in satisfaction of the fine or in lieu thereof if he is unable to pay the fine”); Will v. State, 267 N.W.2d 357, 360 (Wis. 1978) (encouraging but not requiring judges to consider a defendant’s ability to pay LFOs at the time of sentencing); People v. Dueñas, 242 Cal. Rptr. 3d 268, 273 (Ct. App. 2019) (finding that due process “requires the trial court to conduct an ability to pay hearing and ascertain a defendant’s present ability to pay before it imposes court facilities and court operations assessments”); People v. Kopp, 250 Cal. Rptr. 3d 852, 893 (Ct. App.) (agreeing with Dueñas that due process requires courts to conduct an ability-to-pay hearing before imposing criminal justice administration fees if a defendant requests such a hearing), review granted, 451 P.3d 776 (Cal. 2019).

        [18].      Organizations, such as the Fines and Fees Justice Center, Fair and Just Prosecution, Brennan Center for Justice at New York University Law School, and PolicyLink, are bringing to light the harsh impacts LFOs can have on individuals, their families, and society. See generally About Us, Fines & Fees Just. Ctr., https://finesandfeesjusticecenter.org/about-fines-fees-justice-center [https://perma.cc/6C4Y-2TCF]; Addressing the Poverty Penalty and Bail Reform, Fair & Just Prosecution, https://
fairandjustprosecution.org/issues/addressing-the-poverty-penalty-and-bail-reform
[https://perma.cc/T4Z
H-KPXF]; About Us,Brennan Ctr. for Just., https://www.brennancenter.org/about [https://
perma.cc/C4LG-68TU]; Eliminating Fines and Fees, PolicyLink, https://www.policylink.org/our-work/just-society/fines-fees [https://perma.cc/59Q9-8YC3].

        [19].      Many jurisdictions are reexamining various fines and fees. See, e.g., Ala. R. Crim. P. 26.11(b) (directing sentencing courts to consider a defendant’s ability to pay when imposing a restitution fine); A.B. 1869, 2020 Leg. (Cal. 2020) (eliminating twenty-three administrative fees in the criminal legal system); California AB 1869 Criminal Fees, Fines & Fees Just. Ctr. (Oct. 1, 2020), https://finesandfees
justicecenter.org/articles/california-ab-1869-criminal-fees [https://perma.cc/3A3F-CDEV]; H.B. 2048, 2019 Leg. (Tex. 2019) (waiving all DUI fines if a court determines a defendant is unable to pay); S.B. 1637, 2019 Leg. (Tex. 2019) (requiring deferred payment, payment plans, community service, or full or partial waivers for LFOs if a defendant is unable to pay); H.B. 1178, 2020 Leg. (Md. 2020) (requiring courts to use a formula to determine the amount that an individual can pay).

        [20].      See, e.g., S.B. 190, 2017 Leg. (Cal. 2017) (eliminating almost all juvenile court fines and fees); H.B. 36, 2020 Leg. (Md. 2020) (eliminating all juvenile fines and fees and making all such previously imposed LFOs unenforceable and uncollectable); A.B. 439, 2019 Leg., 80th Sess. (Nev. 2019) (eliminating fines and fees charged to families of criminal justice system–involved juveniles); S.B. 48, 218th Leg. (N.J. 2019) (eliminating all juvenile fines and financial penalties); H.B. 1162, 2020 Leg., 2020 Sess. (N.H. 2020) (eliminating costs of services imposed on parents of youth in the justice system); S.B. 422, 81st Leg., Reg. Sess. (Or. 2021) (eliminating fees and court costs associated with juvenile delinquency matters). See generally Jessica Feierman, Naomi Goldstein, Emily Haney-Caron & Jaymes Fairfax Columbo, Juv. L. Ctr., Debtors’ Prison for Kids?: The High Cost of Fines and Fees in the Juvenile Justice System (2016) for a discussion on state laws and a national survey that documents fines, fees, and restitution consequences for failure to pay in the juvenile justice system.

        [21].      Seventeen states, including California, Colorado, Georgia, Idaho, Illinois, Kentucky, Michigan, Minnesota, Mississippi, Montana, Nevada, New York, Oregon, Utah, Virginia, West Virginia, and Wyoming, do not suspend driver’s licenses for failure to pay. See, e.g., Cal. Veh. Code § 13365 (West 2017) (allowing suspension for failure to appear in court, but not failure to pay); H.B. 21-1314, 2021 Gen. Assemb., 2021 Reg. Sess. (Colo. 2021) (repealing the Department of Revenue’s authority to cancel, renew, or reinstate a driver’s license for failure to pay an outstanding monetary judgment); H.B. 599, 2018 Leg., Reg. Sess. (Idaho 2018) (ending suspension); H.B. 3653, 2021 Gen. Assemb. (Ill. 2021) (ending license suspension for unpaid automated speed and red-light camera ticks and rescinding license holds and suspensions for unpaid traffic tickets and unpaid automated speed and red light camera tickets); H.B. 5846, 2020 Leg., 2020 Reg. Sess. (Mich. 2020) (stopping suspending drivers’ licenses for failure to pay in all cases unrelated to the underlying offense being public-safety related); H.F. 336, 2021 Leg. (Minn. 2021) (ending suspension); H.B. 217, 2019 Leg., Reg. Sess. (Mont. 2019) (ending suspension); S.B. 219, 2021 Sess. (Nev. 2021) (ending suspension); N.Y. Veh. & Traf. Law § 510(4-a) (McKinney 2021) (ending suspension); H.B. 4210, 80th Leg., Spec. Sess. (Or. 2020) (eliminating the imposition of driving privilege restrictions for failure to pay fine); H.B. 143, 2021 Leg., Gen. Sess. (Utah 2021) (ending the suspension of driver’s licenses solely for the nonpayment of fines); S.B. 1, 2020 Gen. Assemb., 2020 Sess. (Va. 2020) (ending suspension); H.B. 4958, 2020 Leg., Reg. Sess. (W. Va. 2020) (ending suspension); Wyo. Stat Ann. § 31-9-302 (2021) (ending suspension).  Only four states—Louisiana, Minnesota, New Hampshire, and Oklahoma—require a determination that a person had the ability to pay and intentionally refused to do so. Mario Salas & Angela Ciolfi, Legal Aid Just. Ctr., Driven by Dollars: A State-by-State Analysis of Driver’s License Suspension Laws for Failure to Pay Court Debt 8 (2017), https://www.justice4all.org/wp-content/uploads/2017/09/Driven-by-Dollars.pdf [https://perma.cc/3GKU-H2BH].

        [22].      Kopp, 250 Cal. Rptr. 3d at 852 (holding that defendants are entitled to an ability-to-pay hearing under Dueñas but that they bear the burden of demonstrating their inability to pay). This issue has also been the subject of considerable litigation in other states and will be discussed later in this Note. See infra Part II.

* Senior Editor, Southern California Law Review, Volume 95; J.D. Candidate 2022, University of Southern California Gould School of Law; B.A. Political Science 2019, California Lutheran University. Thank you to Maggie Kerkhof, Rudy Kerkhof, Nicole & Zach Grau, Delaney Kerkhof, and my dearest friends for their unwavering support and encouragement throughout my time in law school. I would also like to thank Professor Clare Pastore for her topic inspiration and guidance. Finally, many thanks to all the Southern California Law Review members for their invaluable work on my piece.