2024

This year marked the sixtieth anniversary of Gideon v. Wainwright, the seminal case in which the Supreme Court of the United States held that the Sixth and Fourteenth Amendments to the Constitution guarantee a right to court-appointed counsel to indigent criminal defendants charged with serious offenses. Very few would argue with that basic proposition today. Instead, the contemporary debate is whether to recognize a “civil Gideon,” i.e. a right to court-appointed counsel for indigent civil litigants.

As unjust and counterproductive public policies go, taxing vulnerable children and families is among the worst. For years, experts have been sounding the alarm that foster care “child support”—making parents pay the state when it takes away their children—is bad family policy and fiscal policy. Importantly, critics have also pointed to the
myriad ways the practice is unlawful. New guidance from the federal government to the states provides a generational opportunity to dismantle this form of stategraft in the foster care system. In this Case Study we highlight promising legislative and administrative responses to the recent federal guidance.

In 2013, Berkeley Law’s Policy Advocacy Clinic began working with local advocates to study juvenile administrative fees. We found that these fees were a form of regressive and racially discriminatory wealth extraction often imposed unlawfully on youth and families across California. As part of a statewide campaign to abolish juvenile fees, we turned to the United States Department of Justice for help fighting these illegal and harmful practices in Sacramento County.

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.

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.

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.

“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.

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.

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.