Eugene Volokh's Blog, page 167

[Josh Blackman] New Civitas Outlook Essay: Four Questions and Few Answers About the Invasion Clause

I have written several somewhat tentative posts on the Invasion Clause. This is an issue on which the courts have not substantially opined, and there is very little settled precedent In my latest essay for Civitas Outlook, I raise four questions for which there are few answers.

Here is the introduction:

On inauguration day, President Trump signed a proclamation "guaranteeing the states protection against invasion." Trump determined that the federal government had "failed in fulfilling [its] obligation to the States" at the southern border and would "take measures to fulfill its obligation to the States." In 2024, Texas Governor Greg Abbott also declared that there was an invasion at the southern border. Most critics saw these actions as partisan statements with no actual legal effect. I disagree. There are important constitutional ramifications to declaring an invasion. If there is an invasion, both the federal government and the states receive additional war powers to repel that invasion. Federal laws that conflict with those war powers may give way. Moreover, the children of invaders may not be entitled to citizenship at birth.

The concept of an invasion may seem obscure today, but it was certainly on the Framers' minds. Four separate clauses of the Constitution reference invasion. Some scholars and judges argue these issues are open-and-shut. They claim that an invasion must be hostile, peaceful migrants cannot be invaders, and the courts have the power to second-guess the president's proclamation. I am not so sure. Here, I will address four questions with few definitive and settled answers. First, what is an invasion? Second, who can declare an invasion? Third, what happens to other federal laws during an invasion? And fourth, do the children of invaders receive birthright citizenship? Once again, Trump has brought long-forgotten provisions of the Constitution to the arena and forced our polity to grapple with whether this President should be treated any differently from all other presidents.

And the conclusion:

Ultimately, I am certain about one principle, which I repeated through Trump's first term, and I will repeat for four more years. Whatever the meaning of the invasion clause, the answer cannot turn on the unprecedented nature of the Trump presidency. These legal questions should have an answer that does not depend on Trump. Either the President has the power to declare an invasion, or he does not. Either the state has the power to declare an invasion, or it does not. Either the judiciary has the power to second-guess a federal declaration of an invasion, or it does not. Either the children of invaders receive birthright citizenship, or they do not. The answer to those questions has to be the same in 1788, 1868, or 2025. I've raised four questions here, and I do not think many clear and settled answers exist. But in any event, these issues cannot decisively cut against the position taken by President Trump and Texas.

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[Brandon Garrett] Due Process and AI

[How does AI challenge basic procedural due process protections and what should be done?]

As we all now know, AI plays a now-pervasive role in our lives, and often without our knowledge. When an an AI system links a person's face to a still from surveillance video, recommends whether to detain a person in jail, or responds with "situational awareness" to a national security threat, what assurance is there that this system can be trusted to safely perform as promised? AI is being used throughout government in hundreds of settings, including those that affect people's core constitutional rights. In response, however, many judges, officials, and scholarly commenters have uncritically credited the claims made by the developers that these systems are reliable and have been subjected to rigorous testing. All too often, those assurances have not been borne out when independent researchers test the AI systems.

And AI has created due process challenges across the world. Just ask it. ChatGPT just told me this: "AI has created significant challenges to due process worldwide in various ways, particularly in criminal justice, government decision-making, and surveillance." And I agree.

AI is now relied on throughout government, even in high-impact settings, such as decisions to identify suspects using facial recognition, detain individuals, or terminate public benefits. Many more uses are being developed, ranging widely from using AI to predict hospital bed usage, to count endangered species like sea lions, and in border security. While some of these AI applications may be helpful and mundane, others may seriously harm people and impact their rights. Consider an example from one person's case.

In November 2019, a man entered a shop in West New York, a small New Jersey town near the Hudson, that offered international wire transfers, repaired cell phones and sold accessories. He asked an employee who was counting money at the counter about wiring funds to South America, and when she turned to look at her computer, he entered an open door behind her. She assumed that he was going to speak to a cell phone repair tech in the back room, but instead, the man surprised her from behind, seized the money she was counting—almost $9,000—pistol-whipped her head with a black handgun, and left.  The employee described him to police who arrived shortly afterwards as a "Hispanic male wearing a black skully hat" and recalled he had actually briefly entered the store another time earlier that same day.

The store's surveillance camera had captured footage of both the robbery and the earlier visit. Local detectives pulled a still image from the footage, a "probe image," as they call it in biometrics, and uploaded it for analysis: they found no match in their New Jersey system.  Next, they sent it to the Facial Identification Section of the New York City Police Department's Real Time Crime Center, where a detective using their AI system found Arteaga a "possible match."  The local detectives then showed a photo array, with five innocent filler photos, and Arteaga's photo, to the store employee, who then identified him.

That AI system was a black box. The detectives did not know how it worked—and the court not know. It ran its analytics and ranked and selected candidate images. We know quite a bit more now about how such systems perform and where they fail. The defense lawyer in the case, completely in the dark except knowing that FRT was used, argued this violated due process.

In Spring 2024, a landmark National Academy of Sciences report called for a national program of "testing and evaluation" before such systems are deployed, given evidence that "accuracy varies widely across the industry." So far, no such program exists.

In their 2023 ruling in State v. Arteaga, appellate judges in New Jersey agreed with the trial judge that if the prosecutor planned to use facial recognition technology, or any testimony from the eyewitness who selected the defendant in a photo array, then they would have to provide the defense with information concerning the AI program used. Specifically, the prosecutor had to share: "the identity, design, specifications, and operation of the program or programs used for analysis, and the database or databases used for comparison," as all "are relevant to FRT's reliability." The New Jersey court emphasized, quoting the U.S. Supreme Court's ruling in Ake v. Oklahoma, that the "defendant will be deprived of due process" if he was denied "access to the raw materials integral to the building of an effective defense."

And yet, by the time the appeal was decided, Arteaga had remained in pre-trial detention for four years. Rather than remain in jail and pursue a trial, he pleaded guilty for time served. He explained to a journalist: "I'm like, do I want to roll the dice knowing that I have children out there? As a father, I see my children hurting."

Like most states, New Jersey does not regulate use of FRT or other types of AI by the government, although the state Attorney General has been soliciting input and assessing law enforcement use of FRT. And defense lawyers have raised concerns with compliance with the Arteaga decision, as they still are not routinely receiving discovery regarding use of FRT.

It is not just facial recognition; a wide range of government agencies deploy AI systems, including in courts, law enforcement, public benefits administration, and national security. If the government refused to disclose how or why it linked a person's face to a crime scene image, placed a person in jail bail, cut off public benefits, or denied immigration status, there should be substantial procedural due process concerns, as I detail in my book and in a forthcoming article. If the government delegates such tasks to an AI system, due process analysis should does not change.

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[Josh Blackman] Today in Supreme Court History: February 13, 2016

2/13/16: Justice Antonin Scalia died.

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[Eugene Volokh] Wednesday Open Thread

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[Eugene Volokh] Trump's Personal Defamation Lawsuit Against Pulitzer Prize Board Members May Continue

From Alexander v. Trump, decided today by Florida Court of Appeal Justices Jeffrey Kuntz, Burton Conner, and Ed Artau:

President Donald J. Trump, a Florida resident, sued nineteen individual members of the Pulitzer Prize Board, an unincorporated association, for defamation and conspiracy. Trump alleged that he sent letters on his personal letterhead to members of the Pulitzer Prize Board. The letters demanded the Pulitzer Prize Board take action to strip The Washington Post and The New York Times of the Pulitzer Prize awarded in 2018 for articles on purported Russian interference in the 2016 presidential election and alleged connections to Trump.

After Trump sent the letters, the Pulitzer Prize Board met remotely and concluded "no passage or headlines, contentions or assertions in any of the winning submissions were discredited by facts that emerged subsequent to the conferral of the prizes." The Board then issued the following statement on its website, with links to the original articles:

A Statement from the Pulitzer Prize Board

The Pulitzer Prize Board has an established, formal process by which complaints against winning entries are carefully reviewed. In the last three years, the Pulitzer Board has received inquiries, including from former President Donald Trump, about submissions from The New York Times and The Washington Post on Russian interference in the U.S. election and its connections to the Trump campaign--submissions that jointly won the 2018 National Reporting prize.

These inquiries prompted the Pulitzer Board to commission two independent reviews of the work submitted by those organizations to our National Reporting competition. Both reviews were conducted by individuals with no connection to the institutions whose work was under examination, nor any connection to each other. The separate reviews converged in their conclusions: that no passages or headlines, contentions or assertions in any of the winning submissions were discredited by facts that emerged subsequent to the conferral of the prizes.

The 2018 Pulitzer Prizes in National Reporting stand.

This statement led to Trump's lawsuit. But this appeal does not require us to address the merits of Trump's conspiracy and defamation claims. Instead, we focus on the personal jurisdiction issue raised by a motion to dismiss Trump's amended complaint. Of the nineteen defendants sued by Trump, only one resides in Florida. The remaining eighteen moved to dismiss the case for lack of personal jurisdiction. The eighteen defendants argue they did not commit a tortious act and did not direct the statement into Florida….

The circuit court concluded that the exercise of personal jurisdiction over the eighteen defendants was proper. We agree. Trump's operative pleading sufficiently pled that the defendants engaged in a conspiracy to defame him. Further, the defendants issued the website public statement in response to the requests of a Florida resident—Trump. They did so in a meeting attended remotely by a Florida resident who also conducted an editing review of the proposed website statement while in Florida.

Because Trump met the personal jurisdiction requirements of Florida's long arm statute and the Due Process Clause, the circuit court's order is affirmed.

Justice Artau added a separate concurrence that also opined on the merits:

"FAKE NEWS." "The phony Witch Hunt." And "a big hoax." President Donald J. Trump has publicly used these phrases to describe the now-debunked allegations that he colluded with the Russians to win the 2016 presidential election.

As noted in the President's complaint, Special Counsel Robert Mueller, Attorney General William Barr, the House of Representatives' Permanent Select Committee on Intelligence, and the United States Senate's Select Committee on Intelligence all concluded "there was no evidence of collusion between President Trump, the Trump Campaign, and Russia." In other words, as the President asserts, "[t]he Russia Collusion Hoax was dead, at least until Defendants [as members of the Pulitzer Prize board] attempted to resurrect it" by conspiring to publish a defamatory statement falsely implying that the President colluded with the Russians.

I join the unanimous majority opinion because I agree that Florida's long-arm statute and the Fourteenth Amendment's Due Process Clause allow for the exercise of personal jurisdiction over the non-resident defendants for their alleged roles in conspiring to issue the defamatory statement standing by the debunked allegations that the President colluded with the Russians. But I write separately to address the merits of the President's defamation and conspiracy claims because the nonresident defendants challenge them here by arguing that they are not actionable under Florida's long-arm statute. Thus, the merits of the President's claims are crucial to our jurisdictional analysis and will be addressed in this opinion….

The concurring opinion is long, and can be read here. A short excerpt of the substantive defamation discussion:

Here, personal jurisdiction can constitutionally be exercised over the non-resident defendants because the President satisfied his burden to show that the non-resident defendants knowingly participated in a civil conspiracy with a resident defendant to defame the President.

The complaint asserted that "the nonresident Defendants knew Defendant [Neil] Brown was a resident of Florida when they willingly participated in a conspiracy with him to defame Plaintiff. Defendant Brown is a prominent figure in American media, leading the St. Petersburg-based Poynter Institute, a non-profit organization that serves the journalism establishment."

The complaint then asserted that, in response to the President's request for the Pulitzer Prize board members to withdraw the 2018 Pulitzer Prize in National Reporting after The Washington Post itself made corrections and deletions to the award winning article, "[t]he Pulitzer Prize board took no immediate public action" but instead "the board—including several Defendants who served on the Pulitzer Prize board at the time—circled the wagons to discuss, vote on, and authorize another evaluation of the 2018 Pulitzer Prize in National Reporting[.]"

The complaint then went on to assert that "Defendant Daniszewski and Defendant Boo, sitting as co-chairs collaborated closely with Defendant Kliment … and with incoming co-chairs Defendant Shelby and Defendant Brown to draft a statement in response to President Trump's letters" and this "statement would eventually be approved for publication by each of the Defendants through a full board vote and become the defamatory statement at issue in this case."

The complaint then further asserted that after the President made another request for the 2018 Pulitzer Prize in National Reporting award to be rescinded, "Defendants again took no public action, but communicated privately, including via phone and email. Defendants Daniszewski, Boo, Kliment, Brown, and Shelby finalized their defamatory statement and presented it to the remaining Defendants for approval prior to publication." The complaint also asserted that following this, "Defendants, as members of the Pulitzer Prize board, were briefed on the smaller group's work and thereafter approved the content and directed the publication of the defamatory statement."

The complaint continued by asserting that "Defendants, with knowledge of its falsity and/or reckless disregard for the truth, published the Pulitzer Statement to include the false implication that there was an established, nefarious connection between Russian attempts to interfere in the 2016 U.S. election, President Trump, and his presidential campaign, when it was crystal clear that no such connection existed" and the President suffered damages from this tort.

Moreover, the evidence submitted to the trial court did not dispel the President's assertion that the non-resident defendants knowingly participated in a civil conspiracy with defendant Brown to defame the President. As the trial court correctly concluded after considering the evidence submitted, the President met his burden to prove that jurisdiction could be exercised over the non-resident defendants….

The non-resident defendants also argue that the conspiracy theory of jurisdiction does not apply to them because they are all members of one Pulitzer Prize board. They argue that under the intra-corporate conspiracy doctrine, members of a board cannot conspire with each other.

However, the non-resident defendants do not contest the fact that the Pulitzer Prize board is an unincorporated association. Because it is an unincorporated association, it is not a separate legal entity from its members….

Because the intra-corporate conspiracy doctrine "stems from basic agency principles that 'attribute the acts of agents of a corporation to the corporation[ ] so that all of their acts are considered to be those of a single legal actor[,]' " the doctrine provides that "it is not possible for a single legal entity consisting of the corporation and its agents to conspire with itself[.]" Thus, it necessarily follows that the doctrine does not apply to the unincorporated Pulitzer Prize board because it is not a legal entity that the law recognizes as "a single legal actor." To the contrary, "[t]he individual members of [the] unincorporated [board] are personally liable for tortious acts they individually commit or participate in, or which they authorize, assent to, or ratify." …

Justice Artau went on to argue in some detail, that New York Times v. Sullivan was inconsistent with the original meaning of the First and Fourteenth Amendments, and closed that section with:

[U]nless and until the Supreme Court overturns New York Times Co. v. Sullivan, the actual malice standard, which the President sufficiently pled here, must apply. However, inferior courts can suggest, as I do here, that the Supreme Court revisit whether New York Times Co. v. Sullivan should continue to be the law of the land despite historical evidence showing it does not comport with the original understanding of the First Amendment.

Justice Artau's conclusion:

The President has met his burden of establishing jurisdiction to proceed with his asserted claims that the non-resident defendants acted with actual malice or reckless disregard for the truth by knowingly conspiring with the Florida resident defendant to defame the President by publishing the statement with "[t]he ultimate purpose of … resurrect[ing] the debunked Russia Collusion Hoax[,]" when, at the time the statement was issued, "it was abundantly clear to anyone interested in the truth that the Russia Collusion Hoax was utter fiction" and "had been contrived and concocted by malicious partisans[.]"

Therefore, the trial court correctly denied the non-resident defendants' motion to dismiss the President's claims over the asserted publication of defamatory "FAKE NEWS" [quoting Trump].

Jeremy D. Bailie, Timothy W. Weber, and R. Quincy Bird of Weber, Crabb & Wein, P.A. represent Trump.

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[Eugene Volokh] UCLA Suspends Students for Justice in Palestine (SJP) Groups for Alleged Misconduct Against UC Regent

From a message just circulated by the UCLA Chancellor:

Dear Bruin Community:

At UCLA, there is always room for discourse and for passionate debate of different points of view. In fact, they are vital to institutions of higher learning. Discourse helps us question our ideas and see new perspectives, and it ultimately leads to growth. Rigorous, healthy dialogue is central to everything we do to advance knowledge.

What there should never be room for is violence.

No one should ever fear for their safety. Without the basic feeling of safety, humans cannot learn, teach, work and live — much less thrive and flourish. This is true no matter what group you are a member of — or which identities you hold. There is no place for violence in our Bruin community.

That is why I am personally letting you know that the UCLA Office of Student Conduct has issued an interim suspension today to two registered student organizations, Students for Justice in Palestine (SJP) and Graduate Students for Justice in Palestine (GSJP), based on its review of initial reports about the groups' involvement in an incident last week at the home of UC Regent Jay Sures.

As has been reported publicly, both in the press and in social media posts by the groups themselves:

• On February 5, 2025, individuals affiliated with the student groups harassed Mr. Sures and members of his family outside his home.
• Individuals surrounded the vehicle of a Sures family member and prevented that family member's free movement.
• Individuals pounded on drums, chanting and holding signs with threatening messages such as "Jonathan Sures you will pay, until you see your final day."
• Individuals vandalized the Sures home by applying red-colored handprints to the outer walls of the home and hung banners on the property's hedges.

The Office of Student Conduct is undertaking the standard process for addressing potential violations of UCLA's student group conduct code. It is conducting an administrative review, and this suspension will remain in effect during the review. If these reports prove true as part of this review, disciplinary action may be taken.

Any act of violence undermines the foundation of our university. As a citizen of the world, I know that no one can promise a society free of violence. But as your chancellor, I can commit to you that whenever an act of violence is directed against any member of the university community, UCLA will not turn a blind eye. This is a responsibility I take most seriously.

I'd like to know more about what exactly constitutes the "harass[ment]," which in this context is pretty vague. I'd also like to know the context behind the "you will pay" message (since in some contexts this might be a threat of professional or political retaliation and in others it might be a threat of illegal conduct).

But certainly students should indeed be punished for blocking people in their cars or vandalizing their homes. The e-mail doesn't mention investigation of any students who were involved, but I hope they too would be punished to the extent they participated in the forbidden conduct (or conspired to do so). And when this sort of action is part of an officially organized student group event, the group can also itself be suspended for it.

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[Eugene Volokh] No Domestic Violence Restraining Order Based on Allegations of "Gaslighting"

From Shia v. Shia, decided Jan. 27 by the California Court of Appeal (Justice Helen Bendix, joined by Justices Gregory Weingart & Michelle Kim):

Lily Shia appeals from an order denying a domestic violence restraining order against respondent Gunther Shia, her ex-husband. Both parties are self-represented on appeal. Lily fails to show the family law court erred by declining to consider many of Lily's allegations of abuse on the basis that they already had been litigated and decided in Gunther's favor. We further hold Lily's remaining allegations are not supported by substantial evidence or were not properly before the family law court….

The decision is long and involves lots of allegations, but here's the one that struck me:

Lily accused Gunther of "Gaslighting" (underscoring omitted) by denying he suffered from steroid-induced rages during their marriage and denying Lily's contributions to Gunther's career success. {Gaslighting has been defined as "psychological manipulation of a person usually over an extended period of time that causes the victim to question the validity of their own thoughts, perception of reality, or memories and typically leads to confusion, loss of confidence and self-esteem, uncertainty of one's emotional or mental stability, and a dependency on the perpetrator."}

Lily argues gaslighting can constitute abuse because it causes her to question her own mental well-being and sanity. Lily does not dispute the family law court's conclusion that the gaslighting allegations predated February 19, 2016 and could not be relitigated.

Assuming arguendo Lily's gaslighting allegations concern Gunther's more recently denying his purported steroid-induced rages and Lily's contributions to his career success, we decline to hold that ex-spouses' denials of each other's accusations, without more, constitute psychological abuse meriting a restraining order.

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[Eugene Volokh] Posting That Employer Is "Racist" Because "He's Voting for Trump" Isn't Defamation

From Espinoza v. CGJC Holdings LLC, decided today by Judge Denise Cote (S.D.N.Y.):

The following facts are taken from the pleadings. They are assumed to be true for the purposes of this motion.

Espinoza worked for approximately one year as a phone server at Joe and Pat's Pizzeria and Restaurant …, which is owned by CGJC Holdings. The individual defendants in this action … are all co-owners and managers of the Restaurant.

Defendants allege that they chose to terminate Espinoza's employment at the Restaurant after Espinoza posted the following statement as a "story" on her Instagram social media page on October 22, 2020 (the "October 2020 Post"):

[I]f you thinking about coming to eat at my job, dont [because] my manager told me he's voting for trump dont give racists your money !!!

Defendants further allege that the October 2020 Post was publicly available to "thousands" of people, that the Restaurant was the "only employer" Espinoza identified in her public profile at the time, and that it was "widely known" that the individual defendants were owners or managers of the Restaurant.

Defendants assert that they "requested that Espinoza take down" the October 2020 Post. After she "failed or refused to do so," they terminated her employment.

Espinoza initiated this action on October 17, 2023. An Opinion of July 23, 2024 granted in part defendants' April 26, 2024 motion to dismiss Espinoza's first amended complaint.

Espinoza's claims for a hostile work environment based on her race, gender, sexual orientation and disability, and for retaliatory termination of her employment survive. Espinoza's claim of retaliation is premised on her assertion that she was fired due to her complaints … that the bartender had sexually harassed her. Discovery is ongoing.

The defendants counterclaimed "against Espinoza for common law defamation, tortious interference with business relations, and breach of fiduciary duty," but the court dismissed those counterclaims. First, New York defamation law requires (among other things) that "there must be (A) a writing, it must be (B) defamatory, it must be (C) factual—that is, not opinion—and it must be (D) about the [counterclaimant], not just a general statement":

"Determining whether a statement is an allegation of fact or mere opinion is a legal question for the court." … Even if a statement is found to contain opinion, "the court must next determine whether the statement is 'pure opinion' (and thus non-actionable) or 'mixed opinion' (and therefore actionable)." Pure opinion is a "statement of opinion which is accompanied by a recitation of the facts upon which it is based or does not imply that it is based on undisclosed facts." Mixed opinion, in contrast, "is an opinion that does imply a basis in undisclosed facts, or facts known only to the author, and is actionable."

The accusation in the October 2020 Post that the Trump voter is a racist is a statement of pure opinion. The October 2020 Post had two components. First, Espinoza made a factual claim that her manager told her he was voting for President Trump. Second, based on that factual claim, she asserted an opinion: that the manager was a racist. Because the statement of opinion discloses the facts on which it is based, it is not actionable.

The defendants assert that the "style, tone, and manner" of the October 2020 Post suggest that Espinoza "is in possession of additional, undisclosed facts supporting her characterization of all of the Defendants … as racists." Nothing in the October 2020 Post implies a basis in "undisclosed facts, or facts known only to the author." Accordingly, the reference to a racist in the October 2020 Post is non-actionable pure opinion.

The defendants further argue that declaring them to be "racists" is an actionable statement of fact, citing to La Liberte v. Reid (2d Cir. 2020). In that case, the defendant published a social media post juxtaposing a 1957 photograph of a white woman screaming at the Little Rock Nine with a photograph of the plaintiff with her mouth open facing a minority teenager at a city council meeting, and included the statement "[h]istory sometimes repeats." … [T]he Second Circuit held that a reasonable reader would understand that the plaintiff had screamed at the teenager, which he and the plaintiff denied had happened. Because such an "accusation of concrete, wrongful conduct" could "be proved to be either true or false," it was actionable.

The defendants here do not similarly allege that Espinoza accused them of having engaged in concrete, wrongful conduct that could be proved to be true or false. Instead, they allege that Espinoza accused them of "being a racist in some abstract sense," which is non-actionable opinion. Accordingly, Espinoza's motion to dismiss defendants' defamation counterclaim is granted.

The court likewise dismissed the tortious interference with business relations claim,  in part because "defendants identify no wrongful or improper conduct by Espinoza aside from the October 2020 Post, which, as discussed, is a non-actionable statement of opinion." And the court dismissed the breach of fiduciary duty claim:

A fiduciary relationship exists "when one person is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation." "[E]mployment relationships, without more, do not create fiduciary relationships." Instead, a plaintiff must show "special circumstances" transforming the employment relationship into a fiduciary one. These may be present "where the party that relied on the relationship reposed confidence in the other party and reasonably relied on the other's superior expertise or knowledge."

Defendants allege that Espinoza's responsibilities and duties as a server included promoting the restaurant and engaging with customers, and that Espinoza breached these duties by publishing the October 2020 Post. These allegations merely recount Espinoza's status as an employee. Defendants have failed to allege any special circumstances creating a fiduciary relationship.

{Defendants argue in opposition to this motion to dismiss their counterclaims that they have pleaded all of the requirements for a faithless servant claim under New York law. They did not, however, assert this counterclaim.  In any event, that claim would also fail as a matter of law. Defendants plausibly allege only that Espinoza published the October 2020 Post, not that she engaged in the "persistent pattern of disloyalty that courts have found necessary to bring conduct within the confines of the doctrine.}

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[Brandon Garrett] Costs and Benefits of Due Process

In 2016, Maranda ODonnell was arrested in Harris County, Texas, which includes the city of Houston, for driving with a suspended license to her mother's house in order to pick up her 4-year-old daughter. ODonnell's bail was set according to a fixed written schedule that the judicial officers had to follow in Harris County, Texas at the time. Like hundreds of thousands of others, she did not have a public defender. ODonnell lived "paycheck to paycheck," said she was "worried about whether [her] job will still be there when I get out," and simply could not afford to "buy [her] release from jail." At a brief hearing, the hearing officer set cash bail at $2,500 more than she could afford—and she was jailed.

ODonnell joined a federal civil rights lawsuit challenging these bail practices as an unfair due process violation. In 2017, federal judge Lee Rosenthal found the practices unconstitutional, relying on a detailed set of factual findings, and concluded that Harris County's misdemeanor bail policy violated the Due Process Clause. In 2019, the parties entered a Consent Decree, the first of its kind in the country, which required that most people arrested for misdemeanors be promptly released without having to pay for their freedom, and that more due process, including discovery and public defenders, be provided at bail hearings.

Since March 2020, I have served as the court-appointed monitor for the settlement, along with my colleagues and friends, law professor Sandra Guerra Thompson from the University of Houston Law Center, economics professor Songman Kang from Sungkyunkwan University in Seoul, Korea, and political scientist Dottie Carmichael from Texas A&M University. As monitors, we closely studied the bail reforms in Harris County.

What we learned surprised us. We knew that ending the cash bail system would free tens of thousands of people each year who would otherwise have ended up in jail. Before the consent decree, 90 percent of people arrested for misdemeanors had secured bonds imposed, which had to be paid before being released, and almost all were higher than $500. Afterwards, nearly 90 percent of misdemeanor arrestees were released on bond, mostly for $100 or less. We knew that liberty would benefit from this Consent Decree.

In the years of our work studying these reforms, however, we also consistently found that these reforms also powerfully benefited public safety. Every year since the reforms took effect, both misdemeanor arrests and rearrests have both declined. We recently summarized these findings in a law review article, and I discuss them more briefly in my new book.

That was not what opponents of these reforms predicted. They feared that protecting due process would result in rampant crime. Instead, we saw offending go down and the misdemeanor system shrink.

Yet, due process has typically had little to say about cash bail practices, which do not exist anywhere in the world but in the U.S. and the Philippines, where it is a quite modern practice. A few courts have found money bail systems to be unconstitutional and in violation of due process, but most have not. In 2011, in Turner v. Rogers, the U.S. Supreme Court held that a person could not be incarcerated for civil contempt for failure to pay child support when he lacked notice, a lawyer, or the chance to show that he had no ability to pay. Yet, scores of due process challenges to bail systems and other detention practices have failed.

Why does due process seem to have so little to say about the fairness of the process at pretrial bail hearings? As the U.S. Supreme Court famously put it in its landmark 1987 ruling in Salerno v. United States, approving the federal Bail Reform Act: "In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception."

That famous quotation, expressing a central due process commitment, has mainly been honored in the breach. The starting place of the Salerno decision seems reasonable enough: we have a due process right to liberty, and jailing people not convicted of a crime should be done only if, based on substantial evidence, they pose a risk to public safety. The Court emphasized the Bail Reform Act's high standard requiring "clear and convincing" evidence of a public safety risk, together with other process protections before pretrial detention could be ordered. And as with other due process settings, the Court found that a range of procedures could provide meaningful hearing rights.

Yet, when one rigorously examines the actual balance between providing procedural protections pretrial, and public safety, a very different picture emerges. Maybe it is not a zero-sum balance at all. Maybe it is more like the Culley case, which I discussed in my first post, where the Justices acknowledged that having a fair hearing serves both individual and government interests.  Due process typically does.

And in Harris County, while it did cost something to implement due process reforms, including making public defenders available at bail hearings, the results have improved public safety. People may think that locking more people in jail makes them safer. Instead, freeing tens of thousands of people made the larger Houston community safer. Also telling, before the reforms, about two-thirds of misdemeanor cases in Harris County resulted in guilty pleas. Typically, after just two to three days in jail, people would plead guilty if they could not afford to pay for their release. Today, instead, about two-thirds of misdemeanor cases are eventually dismissed. And in the very small number of cases that go to trial, acquittal rates are high.

All of that tells us quite a lot about the benefits and limited costs of improving due process. Studies like that can be done in any number of other settings. And judges can more carefully balance the relevant costs when they conduct due process analysis. The Supreme Court's decision in Mathews v. Eldridge calls for such balancing in the administrative hearing context. And in general, as with the Salerno ruling that applies in bail settings, due process has historically involved balancing to reflect the fairness demands of the practical context. The lesson, though, from Houston, is that we can have due process, live in a fair society, and enjoy more security.

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[Josh Blackman] Today in Supreme Court History: February 12, 1965

2/12/1965: Justice Brett Kavanaugh's birthday.

Justice Brett Kavanaugh

The post Today in Supreme Court History: February 12, 1965 appeared first on Reason.com.