University of California Hastings College of the Law
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Criminal Procedure Without Consent
No full textScholars and advocates have long argued that a person’s consent to a warrantless police search is often so inherently coerced, uninformed, and shaped by race, class, gender, citizenship status, and disability that to call it a “choice” is fiction. This critique is not limited to police searches based on consent. Waiving rights and consenting to otherwise unconstitutional state action permeates criminal procedure. The definition of a seizure, the third-party doctrine, custodial confessions, plea bargains, and agreements to alternatives to incarceration (such as GPS ankle monitoring) all hinge on the idea of voluntary choices—choices that are often just as coerced and uninformed as the choice to consent to a search.
Given these concerns, this Article asks: What would happen if consent were eliminated from criminal procedure doctrines? This question is not merely academic. In recent years, a number of jurisdictions have substantially limited or eliminated traditional police searches based on consent. These reform efforts allow us to consider if there is something uniquely coercive or inequitable about consent searches that makes them especially amenable to reform or if we should consider eliminating consent in other criminal procedure doctrines as well.
This Article takes on these questions. Drawing on both an original national survey of recent consent-search reforms and a transsubstantive analysis of consent and waiver in a range of criminal procedure doctrines, this Article analyzes the potential ramifications of eliminating (or limiting) consent. In doing so, this Article reveals the extent to which consent plays a pivotal role in upholding—and justifying—the entire operation of the criminal justice system
Targeted and Ticketed: Student Ticketing and the Perpetuation of the School-to- Prison Pipeline
No full textThe National Center for Youth Law (NCYL) is a non-profit organization working to end the harms of the juvenile, municipal and criminal legal systems, including by decriminalizing normal adolescent behavior, ending financial consequences, and improving children’s access to adequate developmentally appropriate treatment. Our work prioritizes eradicating the school-to-prison pipeline, and abolishing harmful fines, fees and economic sanctions through the Debt Free Justice Campaign (DFJ).
In school districts across the nation, students receive fees and fines as consequences for school-based behavior. Students are policed and ticketed for age-appropriate behaviors and disciplinary matters such as littering, truancy, and underage drinking and smoking. While reforms in the juvenile legal system have been supported by emerging research on adolescent brain development and evidence-based interventions, there is a rapidly growing phenomenon of fining youth through what may be viewed as a less-punitive system for municipal ordinance violations. The youth being channeled into this municipal legal system are disproportionately Black, Brown, and Indigenous youth and youth with disabilities. They are not provided the same legal protections as those youth in juvenile court, and they and their families are driven deeper into debt.
This article looks into an intersection within our work by examining municipal ticketing: when an economic sanction becomes not only a barrier to education, but a funnel into the court system. Through case studies of this phenomenon in specific states (Texas, Illinois and Colorado), we will explore various dimensions of these racially discriminatory practices, including the harmful results of giving Student Resource Officers (SROs) discretion to ticket students, the various drivers of increased municipal court usage, and the impact of overall reform happening in a particular state. We will conclude by suggesting possible advocacy strategies, and restorative justice alternatives to continue the work to keep students in school and out of court
