Unraveling Stategraft: Ending Criminal Administrative Fees in California

In California, like every other state, courts charge administrative fees to people who come into contact with the criminal legal system. As recently as 2020, California authorized over 90 different criminal administrative fees. Since 2019, a coalition of advocacy groups known as Debt Free Justice California have pushed legislation to reduce that number in half by successfully raising questions about the legal and policy rationales for wealth extraction via monetary sanctions like fees.

Race, the Criminal Legal System, and Stategraft: The California Racial Justice Act (2020)

After decades of unabated growth in mass incarceration, the number of incarcerated adults began to decline following the Great Recession. Changes in sentencing, policing, pre-trial diversion, and the recategorization of offense levels, among other strategies, helped reduce the number of persons under carceral control. While the lifetime risks of incarceration and imprisonment have declined from all-time highs, the routine imposition of monetary sanctions (fines, fees, court costs, penalty assessments, etc.) have continued to proliferate in the criminal legal system.

The imposition of these monetary sanctions represents an immediately recognizable form of stategraft. In this essay, we argue that mass incarceration, and its attendant racial disparities in sentencing, is a form of stategraft that, in some cases, illegally transfers predominantly Black, Latine, and poor white bodies from control of oneself to control of the state. In doing so, the state appropriates the differential time and labor-power of persons under carceral control to illegally profit from racial inequality in mass incarceration and sentencing disparities.

Automated Stategraft: Faulty Programming and Improper Collections in Michigan’s Unemployment Insurance Program

A consistent critique about public benefits programs is the idea that they may be ripe for fraud. To combat this concern, states contract with third-party companies to develop coding for their programs to weed out potential bad actors. However, disasters have followed public benefits programs’ attempts to create and use automated systems to process claims across the country, especially in the unemployment insurance context. But the very efforts aimed at fraud prevention can create fraud. What follows is a Case Study of one of the more egregious examples of this counter-intuitive truth in Michigan. Automation of state UI systems may have been applied with good intentions, yet punitive rules, an utter lack of oversight, and a naïve faith in technology have left more state-initiated fraud in its wake than had ever actually existed before the program. Michigan was among the first states to “modernize” their entire unemployment insurance system through a contract with a third-party company. As a result of over-calibrated, faulty algorithmic programming, the system wrongly charged tens of thousands of claimants as “fraudsters” and billed and collected exorbitant amounts of money that the state had no evidence was actually owed.

Exposing Stategraft: A Case Study from Virginia

“Stategraft,” as theorized by Bernadette Atuahene, is the act of “state agents transfer[ring] property from persons to the state in violation of the state’s own laws or basic human rights.”
A common characteristic of the examples of stategraft detected by Atuahene and others is that they operate under a guise of legality and public benefit. States and localities contending with shrinking budgets need extra revenue to fund public services. Property taxes, court costs, criminal fines, and forfeitures are all generally lawful and accepted procedures for generating revenue, so stategraft mimics them to shroud itself in legality and beneficence. Unfortunately, this charade of propriety often discourages victims from challenging, and thus possibly exposing, stategraft in court. As Justice Louis Brandeis once warned, people are more alert to “invasion of their liberty by evil-minded rulers” than to “insidious encroachment by men of zeal, well-meaning but without understanding.” An exemplar of stategraft’s “insidious encroachment” on private property rights is McKeithen v. City of Richmond, a recent Virginia Supreme Court case that exposed a statutorily mandated taking of surplus funds from a tax lien sale as unconstitutional.

Stategraft in Ontario: Attorney General of Ontario v. $10,000

Civil forfeiture allows law enforcement to seize and retain real or personal property and to use this property to fund government activities. This Case Study proceeds in four parts. Part I outlines Bernadette Atuahene’s stategraft theory and Dick Carpenter’s critique. Part II sets out an overview of Ontario’s civil asset forfeiture legislation and constitutional property protection. Part III details stategraft elements in Attorney General of Ontario v. $10,000. 1. Part IV concludes the Case Study.

Stategraft in Public Universities: A Call for Cohort Tuition

Over the last decade, tuition at public universities has risen exponentially. To add insult to injury, misleading price information, vague and confusing language regarding costs, and an overall lack of transparency surrounding tuition has made it nearly impossible to compare pricing among institutions. As a case in point, law students at the University of Wisconsin have been adversely impacted by misleading tuition information. When final law school deposits were due in April 2021, many prospective students relied on the prices and scholarships offered to them in determining where to attend. Students facing ex-post tuition increases have little—if any—recourse. This Case Study argues that post-acceptance increases in tuition at public universities are stategraft. Moreover, this Case Study posits that there is a simple fix to this problem: charging students a fixed tuition rate that averages the tuition increases they would have experienced across the length of their degree, termed “cohort tuition” or the “cohort tuition model.” Several institutions of higher education have already implemented cohort tuition to increase price transparency for students. The University of Wisconsin, other institutions of higher education, and legislators should follow suit.

Under Pressure for Refreshers: Starbucks Is the Latest of Many Corporations Facing Class Action Suits for False Advertising

Consumers are familiar with being disappointed by a product not worth its price tag. Perhaps you discovered your expensive “100% extra virgin olive oil” was diluted with vegetable oil or that your “grass-fed” beef came from a grain-fed animal. Not long ago, I entered a Starbucks café and ordered a Strawberry Açai Refresher based on the açai fruit’s reputation as a “superfood.” Despite its name, the only trace of strawberry in the beverage is the freeze-dried strawberries sprinkled into it. There is zero trace of açai. The lack of fruits in Starbucks Refreshers is what the FDA refers to as “economically motivated adulteration” or “food fraud,” a practice that captures nearly $40 billion annually. This Comment examines FDA regulations and suggests that the FDA should ban companies from including certain foods in names and labels when the product does not actually contain any of the depicted fruit, or any fruit at all.

Pay-to-Stay as Stategraft

Stategraft refers to the practice by which “state agents transfer property from persons to the state in violation of the state’s own laws or basic human rights.”1 Public officials engaging in stategraft utilize these financial resources to replenish public coffers and often target segments of the population poorly positioned to fight back.2 Arguably, there are few populations more vulnerable to financial extraction than incarcerated individuals. Thus, a prime example of stategraft at work is that of “pay-to-stay” fees or the practice of states and localities charging incarcerated individuals for the cost of their incarceration. Legal scholars have challenged the constitutionality of these practices as violating the Due Process Clause of the Fourteenth Amendment, and the Excessive Fines Clause of the Eighth Amendment. Our research has focused primarily on states that utilize civil lawsuits to collect these fees, such as Illinois and Michigan, as particularly egregious examples of stategraft.

The Three Major Questions Doctrines

After the Supreme Court’s decision in Biden v. Nebraska, we now have three interpretations of the major questions doctrine. Chief Justice John Roberts, Justice Neil Gorsuch, and Justice Amy Coney Barrett have each offered different justifications for the doctrine and different ideas about how it should operate. By examining the Supreme Court’s most recent “major questions” cases, this Essay traces the origins, justifications, and operations of the three different approaches.

The Wisconsin Law Review Joins Coalition of Law Journals in Call for Compensation

The editors of this journal have come together with the editors of journals across the country to demand compensation for the work we do to publish legal scholarship. Our demand rests on one fundamental principle: Uncompensated labor is wrong. In the below, Journal Work Essay, we expand on this argument and present other important supporting principles.