An article by Brandon L. Garrett of Duke Law School appears in Access to Justice, a new feature by Law360.
Professor Garrett’s article, “Using the Constitution to End Punishment of the Poor,” focuses on the Fourteenth Amendment, constitutional equality, and due process rights. Professor Garrett shares his thoughts for new wave of litigation and policy reform.
In the article, Professor Garrett examines several notable court cases that challenged fines, fees, and other costs imposed on people who couldn’t afford to pay. He examines the Due Process Clause of the Fourteenth Amendment and the connection between equality and due process:
There is an important new constitutional theory at work in these cases — and getting it right matters. The Due Process Clause of the Fourteenth Amendment says a state shall not “deprive any person of life, liberty, property, without due process of law.” The focus is arbitrary and unfair process. Thirty second bail hearings look totally unfair — but a longer hearing is not enough.
That is why the Equal Protection Clause of the Fourteenth Amendment also matters. It states that no state shall deny to a person “the equal protection of the laws.” The Equal Protection Clause forbids discrimination. The U.S. Supreme Court, in the well-known school funding decision of San Antonio v. Rodriguez, held while discrimination based on race is clearly forbidden, wealth disparities under law are not necessarily unconstitutional. Many interpreted the case as a turn away from a class-conscious Equal Protection Clause.
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