Abstention in the Time of Ferguson

The author argues for an exception to the Younger v. Harris, 401 U.S. 37 (1971) abstention doctrine (Younger abstention) in cases challenging the criminalization of poverty. Deferring to state courts, federal judges invoke Younger abstention, which ends litigation without regard to the merits of the claim, if they conclude there is an adequate state proceeding to address the claims raised. Most recently, the doctrine has been routinely argued in suits challenging criminal justice practices like debtor’s prisons, bail, and fines and fees and has resulted in the termination of several.

Professor Smith begins by discussing the history of Younger abstention, particularly in cases seeking to correct irreparable harm in a state’s criminal justice system. He then catalogues current state practices that criminalize poverty and explores the cases that have been brought challenging those practices, focusing on those where Younger abstention has been argued.

He then posits an exception to Younger abstention in cases challenging a systemic or structural flaw in a local or state judicial process that results in the criminalization of poverty Professor Smith defines structural error as a flaw that impacts the “framework in which the trial proceeds “such as lack of adequate counsel and systemic harm as unconstitutional policies, customs or practices that affect a class of people. He contends that Younger abstention should not apply in these cases because federal courts have traditionally guarded against irreparable harm while protecting federalism, and state courts traditionally have not. Those interests are served rather than undermined when federal courts adjudicate cases alleging structural error and systemic harm. Professor Smith concludes that his interpretation of Younger abstention can be adopted and shaped by the lower federal courts under existing Supreme Court precedent.

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Fred O. Smith, Jr
Harvard Law Review, 131 Harv. L. Rev. 2283 (2018)