An imperative redefinition of "community": Incorporating reentry lawyers to increase the efficacy of community economic development initiatives

UCLA Law Review

Volumn 55, Issue 6, 2008, Pages 1883-1907

  Ball, Alina ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 53349128526     PISSN: 00415650     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (132)

1. The International Covenant on Economic, Social and Cultural Rights (ICESCR), G.A. Res. 2200, U.N. GAOR, 21st Sess., Supp. No. 16 at 49, U.N. Doc. A/6316 (1966)
2. reprinted in 993 U.N.T.S. 3 (entered into force Jan. 3, 1976), available at http://www.unhchr.ch/html/menu3/b/ a_cescr.htm, which the United States has signed but failed to ratify, recognizes the "right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions."
3. Susan R. Jones, Dr. Martin Luther King, Jr.'s Legacy: An Economic Justice Imperative, 19 WASH. U. J.L. & POL'Y 39, 46 (2005)
4. (citing ICESCR art. 11(1)) .
5. See generally Joan Petersilia, When Prisoners Return to Communities: Political, Economic, and Social Consequences, 65 FED. PROBATION 3 (2001).
6. The term reentry is defined as the "process of leaving prison [or jail] and returning to society" with the ultimate goal of reintegration. JEREMY TRAVIS ET AL., THE URBAN INST., FROM PRISON TO HOME: THE DIMENSIONS AND CONSEQUENCES OF PRISONER REENTRY 1 (2001)
7. (See "Reentry Defined" for a discussion on the differences between "reentry" and "reintegration" into society.). The term reentry population is defined as the population of formerly incarcerated individuals reentering society after release from prison or jail. Reentry lawyers are antisubordination lawyers who possess knowledge and experience working within criminally charged, incarcerated, formerly incarcerated, and reentry populations. The term reentry lawyer is first defined in this Comment.
8. The name has been changed to preserve anonymity.
9. Civil disabilities, also termed collateral consequences, are the sanctions imposed on the legal status of an individual as the result of a federal or state criminal conviction, making the person ineligible for a variety of government rights, such as voting, and benefit programs, such as public housing. See infra Part IV.A for a more detailed discussion.
10. The racial politics of St. Louis helped give rise to the factual background of the infamous Dred Scott case. See Dred Scott v. Sandford, 60 U.S. 393 (1856). Although St. Louis was an industrial city that had long offered blacks opportunities that they could not obtain in the South, it remained a city where racial segregation was enforced through legal and social avenues. The racial housing covenants in St. Louis gave rise to Shelley v. Kraemer.
11. See Shelley v. Kraemer, 334 U.S. 1, 4-5 (1948). St. Louis today remains racially segregated and has the thirteenth greatest disparity between whites and blacks out of 318 U.S. cities.
12. See CensusScope, Segregation: Dissimilarity Indices, http://www.censusscope.org/ us/rank_dissimilarity_white_black.html (last visited Mar. 23, 2008) (based on Census 2000 data).
13. The longer one uses heroin, the more expensive the addiction becomes because of the increasing need for greater amounts to achieve the desired high. "With regular heroin use, tolerance to the drug develops. [T]he abuser must use more heroin. . . [and as] higher doses of the drug are used over time, physical dependence and addiction to the drug develop. Within a few hours after the last administration of heroin, withdrawal. . . can produce effects such as drug craving, restlessness, muscle and bone pain, and vomiting." OFFICE OF NAT'L DRUG CONTROL POL'Y, DRUG FACTS: HEROIN, available at http://www.whitehousedrugpolicy.gov/drugfact/heroin/index.html (last visited July 15, 2008).
14. A pattern of repeated incarceration is common among individuals such as Uncle Carl. See, e.g., Petersilia, supra note 2, at 4 (stating that "[f]ully two-thirds of all those released on parole will be rearrested within three years").
15. My father's belief is grounded in the fact that African Americans disproportionately receive prison sentences for drug-related offenses. See generally Michael Pinard & Anthony C. Thompson, Offender Reentry and the Collateral Consequences of Criminal Convictions: An Introduction, 30 N.Y.U. REV. L. & SOC. CHANGE 585, 594 (2006) ("Overwhelmingly, commentators and statistics demonstrate that the primary recipients of prison sentences during the height of the war on drugs and the war on crime have been African Americans.").
16. Personal interview (Nov. 2007).
17. In California, technical parole violations account for approximately 39 percent of all prison returns. See JOAN PETERSILIA, UNDERSTANDING CALIFORNIA CORRECTION 73 (2006). Technical violations, also termed administrative returns, range from failure to take a scheduled drug test to improper social affiliation. Although most technical violations are criminal in nature, for example allegations of robbery, parolees are frequently returned to prison without proof beyond a reasonable doubt that they actually participated in new criminal activity because parole hearings have a "standard of proof. . . [that]. . . is civil rather than criminal."
18. Id. at 73.
19. Similar to Uncle Carl, at least 70 percent of California prisoners suffer from substance addictions. Untreated substance addictions can result in long-term, public health issues, which further limit an individual's ability for self-sufficiency and employment opportunities. For example, "[c]hronic [heroin] users may develop collapsed veins, infection of the heart lining and valves, abscesses, and liver disease." See generally OFFICE OF NAT'L DRUG CONTROL POL'Y, supra note 7. These health challenges are an additional characteristic that is disproportionately associated with an individual's status as formerly incarcerated and needs to be addressed to achieve successful reintegration.
20. Because transactional legal services were not available to him, my uncle demonstrated his lay lawyering skills based on ingenuity. For additional examples and a discussion of lay lawyering, see Gerald P. López, Lay Lawyering, 32 UCLA L REV. 1 (1984).
21. Personal interview with my uncle (Dec. 2007).
22. See generally MARC MAUER, RACE TO INCARCERATE 130-56 (2d ed. 2006) (documenting the disproportionate representation of blacks in the U.S. criminal justice system).
23. See Loïc Wacquant, Deadly Symbiosis: When Ghetto and Prison Meet and Mesh, 3 PUNISHMENT & SOC'Y 95, 96 (2001) ("[F]or the first time in national history, African Americans make up a majority of those walking through prison gates every year... [T]he ethnic composition of U.S. inmate population has reversed, turning over from 70 percent white at the mid-century point to nearly 70 percent black and Latino today, although ethnic patterns of criminal activity have not been fundamentally altered....").
24. U.S. Dep't of Just., Reentry, http://www.reentry.gov (last visited Mar. 23, 2008) ("Nearly 650,000 people are released from state and federal prison yearly and arrive on the doorsteps of communities nationwide.");
25. see also Petersilia, supra note 2, at 3 ("[A] parolee must generally be released to the county where he last resided before going to prison. Since offenders overwhelming come from poor, culturally isolated, inner-city neighborhoods, that is where they return.").
26. BUREAU OF JUST. STAT., U.S. DEP'T OF JUST., REENTRY TRENDS IN THE U.S. (2002), http://ojp.usdoj.gov/bjs/reentry/recidivism.htm (citing a recidivism study of prisoners released in 1994 estimating "that within three years, 51.8% of prisoners released during the year were back in prison either because of a new crime ... or because of a technical violation of their parole").
27. See Devon W. Carbado, Racial Naturalization, 57 AM. Q. 633, 633-36 (2005) (explaining the particular relationship between Black Americans and the criminal justice system through author's own encounters with law enforcement).
28. Dorothy E. Roberts, The Social and Moral Cost of Mass Incarceration in African American Communities, 56 STAN. L. REV. 1271, 1276 (2004). Roberts characterizes the "distinctive features of African American incarceration - the sheer numbers in prison, the high rate of imprisonment, and its spatial concentration" - as combining "to make imprisonment a normal way of life in [poor neighborhoods]."
29. Id. at 1276-77. Moreover, African American "incarceration has become a systemic aspect of community members' family affairs, economic prospects, political engagement, social norms, and childhood expectations for the future."
30. Id. at 1277.
31. Id. at 1276
32. (referring to the analysis in Jeffrey Fagan, Valerie West & Jan Holland, Reciprocal Effects of Crime and Incarceration in New York City Neighborhoods 5 (Columbia Law Sch. Pub. Law & Legal Theory Working Paper Group, Working Paper No. 03-54, 2003) available at http://papers.ssrn. com/sol3/papers.cfm?abstract_id=392120, showing "that incarceration is persistently concentrated in ... [the]... poorest neighborhoods").
33. DAVID J. GARROW, BEARING THE CROSS: MARTIN LUTHER KING, JR., AND THE SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE 533 (1986). Dr. Martin Luther King, Jr. was arrested and served jail time at least four times during his life. On the night of his assassination, there was civil unrest in more than 130 cities across the United States leading to over 20,000 arrests nationwide.
34. The total population of Oakland, California is 399,477 with 19.4 percent of the population living below the poverty line. DataPlace, Area Overview: Oakland, California, http://www.dataplace.org/area_overview/index.html?place= x75724 (last visited Mar. 24, 2008).
35. See Nicholas D. Kristof, Op-Ed., The Larger Shame, N.Y. TIMES, Sept. 6 2005, at A27 ("The U.S. Census Bureau reported a few days ago that the poverty rate rose again last year, with 1.1 million more Americans living in poverty in 2004 than a year earlier. After declining sharply under Bill Clinton, the number of poor people has now risen 17 percent under Mr. Bush.").
36. Jones, supra note 1, at 53.
37. MARK LEVITAN, CMTY. SERVS. SOC'Y, A CRISIS OF BLACK MALE EMPLOYMENT: UNEMPLOYMENT AND JOBLESSNESS IN NEW YORK CITY, 2003, at 1 (2004), available at http://www.cssny.org/pubs/special/2004_02labormarket.pdf ("Perhaps the greatest uncertainty about New York's labor market is whether a return to growth will alleviate the crisis of joblessness facing the city's black men, barely half of whom were employed in 2003.").
38. Audrey G. McFarlane, Race, Space, and Place: The Geography of Economic Development, 36 SAN DIEGOL REV 295, 341 (1999).
39. WILLIAM H. SIMON, THE COMMUNITY ECONOMIC DEVELOPMENT MOVEMENT: LAW, BUSINESS, AND THE NEW SOCIAL POLICY 3 (2001).
40. McFarlane, supra note 27, at 301-02.
41. Laurie A. Morin, Legal Services Attorneys as Partners in Community Economic Development: Creating Wealth for Poor Communities Through Cooperative Economics, 5 D.C. L. REV. 125, 130(2000).
42. But see Scott L. Cummings, Community Economic Development as Progressive Politics: Toward a Grassroots Movement for Economic Justice, 54 STAN. L. REV. 399, 410-13 (2001) (linking the genesis of CED with reconstruction efforts in the South after the Civil War).
43. Morin, supra note 30, at 126 (quoting Peter R. Pitegoff, Urban Revitalization and Community Finance: An Introduction, 27 U. MICH. J.L REFORM 613, 618 (1994)).
44. Id. at 130 (quoting Brian Glick & Matthew J. Rossman, Neighborhood Legal Services as House Counsel to Community-Based Efforts to Achieve Economic Justice: The East Brooklyn Experience, 23 N.Y.U. REV. L. & Soc. CHANGE 105, 107 (1997)).
45. One CED success story is the Dudley Street Neighborhood Initiative in the Roxbury section of Boston. A little over a decade ago, the Dudley Street community was a "dumping ground for the metropolitan area's human and industrial waste." Franz Lehman, Rebirth in Boston: Dudley Street's Community-Organizing Success Story, http://www.tenant.net/Tengroup/Metcounc/ May96/holdingg.html (last visited July 15, 2008). Today, it has been converted into a thriving, self-respecting, and well-integrated community, an "oasis" within the industrial areas near Boston Harbor. Id. For more information
46. see Dudley Street Neighborhood Initiative, http://www.dsni.org (last visited Mar. 24, 2008).
47. Morin, supra note 30, at 130.
48. MIHAILO TEMALI, THE COMMUNITY ECONOMIC DEVELOPMENT HANDBOOK: STRATEGIES AND TOOLS TO REVITALIZE YOUR NEIGHBORHOOD 9 (2002).
49. Id.
50. Jones, supra note 1, at 53.
51. Id.
52. Id.;
53. see abo Susan R. Jones, Pro Bono in Action: Revitalizing Cities With the Help of Lawyers, BUS. L. TODAY, Jan.-Feb. 2004, at 64, 64 (discussing pro bono opportunities for corporate lawyers and their impact in the area of community economic development).
54. See generally Patricia L. Fanflik & David R. Troutman, Putting Them Away and Helping Them Out: The Prosecutor's Role in Offender Reentry, 41 APR PROSECUTOR 26 (2007);
55. Michael Pinard, Broadening the Holistic Mindset: Incorporating Collateral Consequences and Reentry Into Criminal Defense Lawyering, 31 FORDHAM URB. L.J. 1067 (2004).
56. See Plata v. Schwarzenegger, No. C01-1351 TEH, 2005 WL 2932253 (N.D. Cal. Oct. 3, 2005);
57. see also Andy Furillo, Inmate Rights Lawyers Are a Burden, Siilen Says, SACRAMENTO BEE, May 11, 2007, at A4.
58. Gerald P. López, Shaping Community Problem Solving Around Community Knowledge, 79 N.Y.U. L REV. 59, 77 (2004).
59. Id.
60. For examples of lawyers and law students tackling issues specific to reentry see Homeboy Industries, http://www.homeboy-industries.org (last visited Mar. 24, 2008), and UCLA Law, Combatting Employment Discrimination: The Prisoner Re-Entry Initiative 2006-2008, http://www.law.ucla.edu/ home/index.asp?page= 2281 (last visited Mar. 24, 2008).
61. For a sample of legal scholarship that addresses incarceration issues and the public policies of the criminal justice system, see Roberts, supra note 20;
62. Regina Austin, "The Black Community," Its Lawbreakers, and a Politics of Identification, 65 S. CAL. L. REV. 1769 (1992);
63. Regina Austin, "Step on a Crack, Break Your Mother's Back": Poor Moms, Myths of Authority, and Drug-Related Evictions From Public Housing, 14 YALE J.L & FEMINISM 273 (2002) [hereinafter Austin, Step on a Crack];
64. Paul Butler, Much Respect: Toward a Hip-Hop Theory of Punishment, 56 STAN. L REV. 983 (2004).
65. TRAVIS ET AL., supra note 3, at 40-41.
66. See generally G. THOMAS KINGSLEY & NANCY G. LA VIGNE, INFORMATION AND THE CHALLENGE OF PRISONER REENTRY (2004), available at http://www.urban.org/url.cfm?ID=900756 ("Over the past decade, a rising number of released prisoners are returning disproportionately to major metropolitan cities and to just a few neighborhoods within these cities. These communities are often among the least able to provide the support necessary for successful reintegration because they lack social and economic infrastructures that would facilitate reintegration.").
67. Petersilia, supra note 2, at 4.
68. Id.
69. See Austin, Step on a Crack, supra note 45, for a robust discussion on how federal criminal conviction policies and laws erode poor mothers' attempts to deploy cultural and social mechanisms of control over their children.
70. Petersilia, supra note 2, at 4.
71. Id.
72. Empowerment Zones are impoverished neighborhoods designated by the U.S. government as eligible for private investment incentives, such as corporate income tax credits, to encourage economic growth and revitalization within those neighborhoods. See SIMON, supra note 28, at 14-19 (explaining how the Empowerment Zones Program is considered part of the CED movement because of the emphasis on community impute and stakeholder participation in these neighborhood development efforts).
73. McFarlane, supra note 27, at 329 (internal citation omitted) (quoting 24 C.F.R. § 597.102(c) (1997)).
74. Id.
75. The original eight cities are Atlanta, Baltimore, Chicago, Detroit, Philadelphia/Camden, New York City (specifically Harlem and the South Bronx), Cleveland, and Los Angeles. All of the original Empowerment Zones were former leading cities in America's Manufacturing Belt, more recently referred to as the Rustbelt. See McFarlane, supra note 27, at 329. [A]nalysis conducted using data on Ohio state prisoners ... shows that two-thirds of the county's prisoners and most of the block groups with high rates of incarceration come from Cleveland. Concentrations are such that well under 1 percent of the block groups in the county account for approximately 20 percent of the county's prisoners. In such "high-rate" block groups, somewhere between 8 and 15 percent of the young black male are incarcerated on a given day. Similar conclusions can be drawn from a study in Baltimore, where 15 percent of the neighborhoods accounted for 56 percent of the prison releases.
76. TRAVIS ET AL., supra note 3, at 42 (footnote omitted).
77. Pinard & Thompson, supra note 9, at 594 ("[The] high rate of incarceration has placed added stresses on low-income communities of color. The loss of young men who are potential wage earners and supports for families has a detrimental effect on the social organization of poor communities while the offender is in prison. After the offender is released, the problems of lack of employment and lack of meaningful connection with the community can persist.").
78. Petersilia, supra note 2, at 4.
79. McFarlane, supra note 27, at 343 (emphasis added).
80. ASSATA SHAKUR, ASSATA: AN AUTOBIOGRAPHY 260 ( 1987). Shakur was incarcerated in federal maximum security prisons from 1973 to 1979 when she escaped prison and subsequently fled to Cuba for political asylum.
81. See Lorie M. Graham, An Interdisripimary Approach to American Indian Economic Development, 80 N.D. L. REV. 597, 616-17 (2004).
82. TEMALI, supra note 35, at 9.
83. Id.
84. López, supra note 42, at 65 ("It is not in any way contradictory ... to insist that those who live and work in [inner-city] communities possess extraordinary knowledge that we should tap and share, and simultaneously to maintain that the very same people still do not know huge amounts that they would find powerfully helpful.").
85. Pinard & Thompson, supra note 9, at 590.
86. Petersilia, supra note 2, at 6. The democratic marginalization of African American men has global effects that reach far beyond the individual or their community. It has been calculated that if felons in Florida had been able to vote in the 2000 presidential election, Al Gore would be President.
87. See, e.g., A Stigma That Never Fades, THE ECONOMIST, Aug. 10, 2002, at 25, 27 (estimating that one in six black men cannot vote in Virginia and Kentucky and that those convicted of a felony would vote overwhelmingly for Democrats);
88. Abby Goodnough, Disenfranchised Florida Felons Struggle to Regan Their Rights, N.Y. TIMES, Mar. 28, 2004, available at http://query.nytimes.com/ gst/fullpage.html?res= 9A0CEFD81130F93BA15750C0A9629C8B63.
89. See SEYLA BENHABIB, THE RIGHTS OF OTHERS: ALIENS, RESIDENTS AND CITIZENS 50-51 (2004) (discussing Hannah Arendt's famous characterization of citizenship as "the right to have rights" (citation omitted)).
90. See generally GERALD P. LÓPEZ, REBELLIOUS LAWYERING: ONE CHICANO'S VISION OF PROGRESSIVE LAW PRACTICE (1992); Derrick A. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 YALE L.J. 470 (1976).
91. See LÓPEZ, supra note 68.
92. Gerald P. López, Reconceiving Civil Rights Practice: Seven Weeks in the Life of a Rebellious Collaboration, 77 GEO. L.J. 1603, 1608 (1989).
93. Morin, supra note 30, at 168 (internal quotation marks omitted).
94. Id.
95. Id.
96. DANIEL P. MEARS & JEREMY TRAVIS, THE URBAN INST., THE DIMENSIONS, PATHWAYS, AND CONSEQUENCES OF YOUTH REENTRY 31 (2004).
97. The irony of the term collateral consequences is that these consequences have an incredibly material impact on a person's ability to reintegrate into society after incarceration. The term itself is indicative of the misinformation around this topic.
98. Pinard & Thompson, supra note 9, at 585-86 (footnote omitted).
99. Id. at 586.
100. Id. at 586-87 (footnote omitted).
101. Id. at 587; see also Steven Raphael, The Socioeconomic Status of Black Males: The Increasing Importance of Incarceration 1 (Mar. 2004) (unpublished manuscript), available at http://socrates.berkeley.edu/ ~raphael/the%20socioeconomic%20status%20of%black%20males%20march2004.pdf (concluding that these collateral consequences are "an increasing[ly] important... [contributor to] racial inequality in the United States").
102. Pinard & Thompson, supra note 9, at 589.
103. Id. at 590.
104. Id. at 590.
105. Id. at 591.
106. See generally MARGARET COLGATE LOVE, RELIEF FROM THE COLLATERAL CONSEQUENCES OF A CRIMINAL CONVICTION: A STATE-BY-STATE RESOURCE GUIDE (2006).
107. Petersilia, supra note 2, at 6.
108. Austin, Step on a Crack, supra note 45, at 274.
109. Pinard & Thompson, supra note 9, at 596.
110. Id.
111. Id.
112. Id. at 597.
113. Joan Petersilia, Strategic Reform: Implementing Evidence-Based Programs for California Offenders 10 (2005), available at http://ucicorrections. seweb.uci.edu/pdf/present_2005_07_12_xerox.pdf (PowerPoint presentation).
114. Without exploring this topic in detail, it is necessary to note that reentry lawyers are an asset in family reunification efforts and dependency court issues. More than half of incarcerated men are parents of children under eighteen years of age. About eighty percent of female inmates are mothers with, on average, two dependent children under the age of ten. See Petersilia, supra note 2, at 5. A major issue for women post-incarceration is reuniting with their children who were placed in foster care. Family reunification is a powerful goal for healthy communities.
115. Jeffrey Lin & Susan Turner, Considering Secure Reentry Centers in California 3 (Ctr. for Evidence-Based Corrections Working Paper 2007), available at http://ucicorrections.seweb.uci.edu/pdf/ ConsideringSecureReentryCentersinCalifornia.pdf.
116. id.
117. See Public Safety and Offender Rehabilitation Services Act, A.B. 900, 2007 Leg., Reg. Sess. (Cal. 2007);
118. see also Judie Marks, Support for Reentry Facility May Help County Get New Jail, LEDGER DISPATCH, Aug. 31, 2007, available at http://www.ledger-dispatch.com/news/ newsview.asp?c=224247.
119. There already exist examples of successful reentry and halfway homes located in poor, inner-city communities. See Tarzana Treatment Center Integrated Behavioral Healthcare, http://www.tarzanatc.org (last visited Mar. 25, 2008); A New Way of Life Reentry Project, http://www.anewwayoflife.org (last visited Mar. 25, 2008).
120. Lin & Turner, supra note 93, at 8.
121. See Roberts, supra note 20.
122. Pinard & Thompson, supra note 9, at 602.
123. Id. at 601.
124. Id. at 602 (referencing PETER WAGNER, PRISON POLICY INITIATIVE, DETAINING FOR DOLLARS: FEDERAL AID FOLLOWS INNER-CITY PRISONERS TO RURAL TOWN COFFERS 1 (2002)).
125. See id. at 602 (providing examples of how prison population counting has a significant impact on electoral counting that dilutes the political voice of inner-city communities).
126. López, supra note 42, at 64 ("Those who live in these neighborhoods know too little about how federal, state, and local governments make budget decisions about economic development and how, if at all, everyday folks like themselves can influence the process and choices.").
127. Morin, supra note 30, at 161 ("In order to ensure effective delivery of legal services, legal service providers must develop an integrated, comprehensive, and collaborative... system of delivery.").
128. The idea for this Comment was inspired by Saúl Sarabia, Director of the Critical Race Studies Program, in conversation discussing the topic of reentry and CED.
129. McFarlane, supra note 27, at 300.
130. See Cummings, supra note 30, at 447-65 (arguing that conventional CED should deemphasize its market-based approach because market-based CED does not adequately redress poverty, has a lack of political engagement, and may facilitate gentrification).
131. Jeremy Travis, But They All Come Back: Rethinking Prisoner Reentry, SENTENCING & CORRECTIONS: ISSUES FOR THE 21ST CENTURY, May 2000, at 1, 2 ("The overarching goal of reentry, in my view, is to have returned to our midst an individual who has discharged his legal obligation to society by serving his sentence and has demonstrated an ability to live by society's rules.").
132. Uncle Carl was evicted from his state convalescent home and asked to leave on Sunday, December 30, 2007. He is once again homeless.