Abstract

Excerpted From: Daniel Stainkamp, Auto-Jubilee: A Case for Massive Automatic Driver's License Restoration for Debtor-Suspendees, 102 North Carolina Law Review 231 (December, 2023) (385 Footnotes) (Full Document)

The ability to drive confers and affirms individuality, dignity, autonomy, and mobility. Vehicles are safe havens and means of self-expression. Driving is an imperative utility in modern society, not a “mere privilege or convenience.” The Supreme Court has recognized that a driver's license facilitates financial stability and has called driving “a virtual necessity for most Americans.” Undoubtedly, a person's legal interest in a driver's license is substantial.

While driving connects motorists to a world of opportunity, it also exposes them to a world of consequences. Traffic stops are the most common interaction Americans have with police. These interactions may result in warnings, searches, citations, criminal charges, incarceration, degradation, and/or violence--up to and including death. I focus here on a consequence in the middle: suspension of a driver's license for non-driving-related reasons, as a result of failure to appear (“FTA”) in court or failure to comply (“FTC”) with court orders, including orders to pay legal financial obligations (“LFOs”).

Suspension for these sorts of non-driving-related reasons, particularly debt-based license suspension, is actually quite common. This phenomenon has created an economic epidemic. Lacking a driver's license makes it hard to get and keep meaningful work and affordable housing. Driving creates manifold forms of access, agency, and flexibility; without a license, ordinary daily tasks can become tedious ordeals. According to Duke Law's Driving Injustice report, “[t]he steady increase in license suspensions” creates “a vicious cycle of court debt and consequences that often last[s] for years.” Moreover, long-term license suspension is a contributing factor to generational impoverishment. It is among the many practices that gouge Black wealth. Exclusion from automobility has been a historic tool of white supremacy.

Racist traffic stops are one way that Black people have been excluded from automobility. For example, in Greensboro and Charlotte, white and Black motorists stopped by police are found with contraband at about the same rate, but police departments in those cities search Black motorists more than twice as often as they do white motorists. Nationwide, Black people account for a disproportionate share of traffic-stop deaths. Far more common than death, though, are citations. These citations can initiate and perpetuate the cycle of debt that leads to license suspension.

When it comes to the infractions used as policy justifications for license suspension, the binary between “driving-related” and “non-driving-related” breaks down under scrutiny. Certainly, FTA and FTC charges have nothing to do with driving ability. But sometimes even traffic stops have nothing to do with driving. For instance, police in North Carolina are “more likely to stop [B]lack drivers for no discernible reason.”

Relatedly, police routinely engage in “pretext” stops where officers pull over motorists for minor equipment violations and then use the stop to pursue a more serious charge. These stops have been shown to be racially discriminatory. Similar (mis)conduct by motorists on the road receives differing criminal consequences depending on the race of the driver and the outward indications of poverty evidenced by the car itself. Some police forces have even falsified thousands of tickets to nonexistent white drivers to mask the disproportionate rate at which Black and Latine motorists are ticketed.

Race interlocks with poverty. Poverty is criminalized. Courts impose exorbitant fees and fines and use predatory collection methods against people who commit minor offenses. People who cannot afford to pay are jailed. This practice especially impacts low-income people of color and their communities.

Scholars have identified these connected phenomena variously as “municipal plunder,” “criminalizing poverty,” and “modern-day debtors' prisons.” The state of the law in North Carolina expands modern-day debtors' prisons--beyond those physically incarcerated for their driving offenses--to debtors immobilized, confined, and isolated by their inability to drive.

License suspension is more than the revocation of a legal privilege to drive. It is the deprivation of lifestyle, mobility, means of gainful employment, and social connection. When such a forfeiture comes temporarily, as a punishment for unsafe behavior on the roads, it is appropriate, and comports with the generally understood and accepted police power of a given jurisdiction. But when it comes indefinitely, as a punishment for poverty, it bears no relationship to the gravity of the offense it is designed to punish, and it is therefore illegitimate.

Indeed, the Constitution prohibits “punishing a person for his poverty.” To guard against such abuse, state and local courts have a duty to “inquire, through a hearing, into a person's ability to pay prior to imposing incarceration for nonpayment.” But courts in North Carolina regularly ignore this duty. Moreover, even when this duty is abided by, it does not adequately protect indigent defendants, especially debtor-suspendees. Accordingly, more holistic efforts are needed to remedy the effects of this systemic deprivation of rights.

To that end, many stakeholders have recognized the injustice being worked on poor drivers by North Carolina's suspension laws. Several cities have initiated progressive remedial and restorative measures to address the problems caused by our overbroad policy of license suspension. Some nongovernmental organizations have taken up the mantle of protecting the rights of poor drivers. And recently, a coalition of civil rights and social justice groups sued the North Carolina Department of Motor Vehicles (“DMV”), an effort that ended in a settlement requiring the DMV to provide notice to drivers of their eligibility to have ability-to-pay hearings.

As admirable as these efforts are, they do not go far enough. Auto-Jubilee-- massive, automatic debt cancellation, license restoration, expunction of debt-based criminal violations, and repeal of the laws that permit and require debt-based license suspension--does go far enough. Following the cadence of the ancient Hebrew law of jubilee, I propose that this four-part process be repeated every seven years. The recurrence is intended to recover any progress rolled back pursuant to shifts in the political makeup of the branches of North Carolina government, and to prevent progress achieved in law and policy from reverting to its current retrograde state.

To justify Auto-Jubilee, this Comment proceeds in three parts. Part I identifies the problem, describing the license suspension process, outlining the consequences for debtor-suspendees, and connecting those consequences to a broader structure of inequality and injustice. Part II surveys the existing discourse around reform and critiques the approaches currently underway, identifying their merits and limitations. Part III proposes, for the first time, a critical legal theory of Auto-Jubilee, drawing philosophically from Critical Race Theory (“CRT”), conceptually from historical traditions of manumission and legal forgiveness, and practically from modern debt-cancellation practices. This Comment concludes that the government must bear the onus of undoing the sweeping, illegitimate practice of debt-based license suspension. Auto-Jubilee is the only remedy commensurate with the violations North Carolinians have suffered. And it is the only remedy that extirpates the root of the problem rather than merely treating its symptoms.

[. . .]

North Carolina's existing system of debt-based license suspension serves no legitimate policy goals. Materially, it functions only to immobilize poor people and people of color, to degrade them, and to extract their wealth. Culturally, it perpetuates the violent myth that poor people's poverty is blameworthy and their own fault. Theresa Zhen illustrates the phenomenon:

The racial project of penal debt arising from traffic and criminal violations is not merely extractive. It punctures the safety net so forcefully that a person is effectively stagnated in all modes of economic possibility. Without being able to pay off fines and fees, the cycle of poverty spins faster, towards an inevitable end of joblessness, criminalization, incarceration, and economic precariousness.

This is the modern-day debtors' prison--a subtle, often invisible web of deprivation that ensnares all who are unable to pay for escape.

Subtle, because in operation this prison looks like a subscription service. As servitization has proliferated as an organizing principle of our economy, it has contaminated and contorted the legal concept of “license.” Poor people and people of color can no longer expect to pay a one-time fee to be licensed and expect that legal privilege to persist. Instead, they can expect to be charged a subscription fee for the right to stay on the road and out of jail.

This malicious practice is inappropriate in any democracy. And it specifically contravenes the notions of justice and common welfare enshrined in the constitutions of our nation and state. It also ought to offend our commonsense understanding of government as benevolent, as supportive, and as a protector of its citizens.

The short-term fixes currently in operation have made some materially meaningful progress for a fraction of North Carolinians. But each only addresses symptoms of the problem. To get at the problem's root cause, all traffic debt must be forgiven, all licenses suspended for FTA and FTC must be reinstated, convictions for debt-based traffic violations must be expunged, and N.C. Gen. Stat. § 20-24.1 must be repealed.

Such a tectonic shift in law and policy would likely result in a reorganization of the economy, including job disruption among certain workers within the license-suspension industrial complex. Court clerks, attorneys, insurance adjustors, and DMV workers would all have less work to do were the illegitimate practice of debt-based suspension rescinded. But we might find socially proactive, connective, generative, and supportive tasks that these workers could do instead.

The law's historical spirit of hostility toward individual debtors-- whether students, bankruptcy petitioners, or folks unable to pay LFOs--might reasonably cause one to be pessimistic about the viability of Auto-Jubilee. Indeed, some theorists have identified our economy in late capitalism as depending on debt for its very survival. The “debt economy” uses the criminal justice system as a lever to legitimize and extract portions of the value of that debt from debtors, all while blaming the victims of this unjust economic regime for their own plight. The massive cancellation of debt I propose seems like it would be anathema to such an economic structure. Nevertheless, Auto-Jubilee is designed and theorized pursuant to a constructive, optimistic view of the law's capacity to change economic and social arrangements for the good.

Ultimately, it is our duty as students, instructors, adjudicators, activists, community members, legal thinkers, legal practitioners, lawmakers, and stakeholders in society to look out for the most vulnerable and most historically mistreated among our neighbors. Ending debt-based license suspension via Auto-Jubilee is one clear path to discharging that duty.

J.D. Candidate, the University of North Carolina School of Law, 2024.