G. Alex Sinha (Maurice A. Deane School of Law at Hofstra University) & Janani Umamaheswar (George Mason University) have posted Hidden Takings and the Communal Burden of Punishment (60.2 Harv. C.R.-C.L. L. Rev. __ (forthcoming 2025)) on SSRN. Here is the abstract:
Legal scholars devote significant attention to the plight of the incarcerated, and they also increasingly widen their gaze to confront the social implications of incarceration for those outside the system. This Article goes further still: It argues that harsh conditions of confinement in the American criminal legal system may violate the constitutional rights of free people in the community—namely, the families of incarcerated people. To make this argument, we deploy a sophisticated variation of the traditional critical methodology of “looking to the bottom.” We draw on narratives collected through 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 find that, in the face of governmental neglect of imprisoned populations, family members experience genuine coercion to provide their incarcerated loved ones with access to basic necessities, such as nutrition, physical safety, and post-release housing. In other words, informal social support networks, made up of civilians, backstop the state’s carceral burden. These networks—which are located primarily in communities of color and communities of limited means—thus become critical to the attainment of broadly beneficial objectives of the criminal legal system, like desistance from crime and successful reintegration upon release.
We translate these participants’ narratives into constitutional language. More specifically, we argue that the participants (and many others like them) 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.” Unlike traditional or regulatory takings, however, 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 introduce and defend the concept of “hidden takings”: Certain governmental seizures of private property that are effected by the excessively coercive, extra-legal pressure arising from the state’s failure to uphold basic affirmative obligations to its people.
We show that hidden takings fit comfortably within current caselaw, 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 per se or regulatory ones that the courts have long accepted. We ultimately situate hidden takings within broader ongoing debates about takings law and progressive constitutionalism, finding that both originalist and critical perspectives are conducive to acknowledging hidden takings. Hidden takings cast a new and valuable light on the experiences of overlooked communities that so often bear the brunt of governmental neglect, such as racial minorities and people stigmatized by entanglement with the criminal legal system. The concept of hidden takings also adds breadth and constitutional depth to discussions about reparations.
