Tyler Smoot * | 23.5 | Article | Citation: Tyler Smoot, Punishing the Poor: Challenging Carceral Debt Practices Under Bearden and M.L.B., 23 U. Pa. J. Const. L. 1086 (2021).

American Constitution Society Constance Baker Motley Student Writing Competition Winner

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This paper argues that many carceral debt practices today are subject to heightened scrutiny under the Equal Protection and Due Process clauses. Traditionally, laws trigger heightened equal protection scrutiny when they either inhibit a fundamental right or make a suspect classification. This paper offers a roadmap for relying on Bearden’s four-factor test to challenge laws that discriminate against the poor. In Part I, the paper explores the rules that Griffin and Bearden established. Griffin announced broadly that “bolt[ing] the door to equal justice” based on ability to pay violates the fundamental fairness of the Fourteenth Amendment. Bearden shaped this principle into a new form of heightened scrutiny that balances four factors. Thus, the paper argues, whenever a law infringes a right solely because of inability to pay, the law must face Bearden’s four-factor inquiry. Part I draws these principles out from the cases.

Part II of the paper rebuts two “shields” that advocates and jurists wield to limit Bearden’s application in new contexts. Some, for example, find that Bearden-style claims should be limited to criminal cases where a defendant is incarcerated for inability to pay. Others argue that Bearden applies only when challengers suffer an “absolute deprivation” of some right. Part II rebuts those views and argues that their underlying concern—that properly applying Bearden’s factors might open the floodgates of poverty litigation—is largely unwarranted. This is so because Bearden balances the individual interest affected with alternative means for achieving the stated goal. Under this balancing test, a Bearden violation will not exist in the “mine run” of civil cases. Part II concludes with a third case, M.L.B. v. S.L.J., that supports this rebuttal and illustrates the Bearden roadmap offered in Part I.

Despite Bearden and its related cases, the Ferguson investigation reveals that many modern practices still incarcerate or punish the poor for their poverty. Part III of the paper examines three such practices, arguing how and why Bearden should apply. These three practices are (1) requiring indigent persons to pay court appointed attorney fees, (2) assigning bail on a fixed-sum basis, and (3) conditioning felon re-enfranchisement on payment of carceral debt. The paper argues that the laws undergirding each of these practices should be subjected to Bearden’s heightened scrutiny because they inhibit a significant right based on inability to pay. The paper concludes that the laws cannot stand under Bearden’s four-factor test.

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*Tyler Smoot wrote this paper as a second-year law student at the University of Alabama School of Law. He graduated from Alabama Law in May 2021 and now serves as a law clerk to the Hon. Karon O. Bowdre of the U.S. District Court for the Northern District of Alabama. His background is in ministry work with persons living in poverty, and he holds a Master of Divinity degree from Duke Divinity School. The author would like to thank the Southern Poverty Law Center’s Economic Justice Project team, whose work inspired this paper, as well as Professor Bryan Fair of Alabama Law and the Equal Protection Seminar class that offered feedback on the paper. The author also thanks the American Constitution Society for hosting the Constance Baker Motley National Student Writing Competition, in which this paper won the first-place prize.