Hidden Takings and the Communal Burden of Punishment

33 Pages Posted: 29 May 2024

See all articles by G. Alex Sinha

G. Alex Sinha

Maurice A. Deane School of Law at Hofstra University

Janani Umamaheswar

George Mason University

Date Written: May 26, 2024


The American criminal legal system is notorious for subjecting those it imprisons to harsh conditions of confinement. Legal scholars are well aware of this feature of the system, and they contend regularly with its implications. Unlike criminologists and other social scientists, however, legal scholars are much less engaged with the significance of harsh conditions of confinement for people outside the system. Perhaps this is not surprising. The legal implications of conditions of confinement might seem generally restricted to the people confined. We argue to the contrary. More specifically, we claim that harsh conditions of confinement in the American criminal legal system may violate the constitutional rights of free people in the community—specifically, the families of incarcerated people. To make this argument, we draw on eight months of observations of a support group for family members of incarcerated people, along with 27 in-depth interviews with such family members. We marshal their narratives to illuminate the challenges that family members face in ensuring their incarcerated loved ones’ access to necessities, like nutrition, physical safety, and post-release housing.

We find that, in the face of governmental neglect of imprisoned populations, family members experience genuine coercion to contribute money and labor to backstop the state’s carceral burden. In doing so, they become critical to the attainment of broadly beneficial objectives of the system, like desistance from crime and successful reintegration upon release. We translate the narratives of these participants into constitutional language, concluding that they are experiencing takings that should be cognizable under the Fifth Amendment’s Takings Clause. The Takings Clause provides that “private property [shall not] be taken for public use, without just compensation.” But unlike traditional or regulatory takings, the extraction of property from the loved ones of incarcerated people occurs under extreme social or moral pressure rather than pursuant to legal directives. To capture the experience of the participants in this study, we therefore introduce and defend the concept of “hidden takings”—certain governmental seizures of private property that are effected by subjecting property owners to excessively coercive, extra-legal pressure. We then show that hidden takings fit comfortably both within the current caselaw on takings, as well as within numerous and varied theoretical accounts of what takings law should achieve. In some respects, in fact, the case for recognizing hidden takings is stronger than the case for recognizing traditional or regulatory ones. Notably, we find that both originalist and critical perspectives are also conducive to acknowledging hidden takings.

Keywords: Takings, Takings Clause, Fifth Amendment, Incarceration, Conditions of Confinement, Family Support, Qualitative Research, Criminal Legal System, Looking to the Bottom, Originalism, Originalist, Physical Takings, Regulatory Takings, Judicial Takings, Hidden Takings

JEL Classification: K10, K11, K14, K19, K39, K40, K42, Z13, Z18

Suggested Citation

Sinha, G. Alex and Umamaheswar, Janani, Hidden Takings and the Communal Burden of Punishment (May 26, 2024). Hofstra Univ. Legal Studies Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=4842713 or http://dx.doi.org/10.2139/ssrn.4842713

G. Alex Sinha (Contact Author)

Maurice A. Deane School of Law at Hofstra University ( email )

Hempstead, NY 11549
United States

HOME PAGE: http://alexsinha.com

Janani Umamaheswar

George Mason University ( email )

4400 University Drive
Fairfax, VA 22030
United States

HOME PAGE: http://https://www.jananiumamaheswar.com

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