In the Press
Wednesday, October 28, 2020Two Law Professors Seek to Have Those with Mental Issues Voluntarily Waive Their Second Amendment Rights Newsweek
Wednesday, October 28, 2020The Supreme Court Should Not Muck Around in State Election Laws — A Commentary by Akhil Reed Amar ’84 et al. The New York Times
Wednesday, October 28, 2020Using the Law to Fight Epidemics, for Better and Worse The New York Times
Wednesday, October 28, 2020Can Artificial Intelligence Save the Regulatory State? — A Commentary by Donald Elliott ’74 The American Spectator
Wednesday, October 14, 2020
Court Ruling Reflects Contributions from Liman Center Fellows
A conversation last spring among former fellows of the Arthur Liman Center for Public Interest Law at Yale Law School was one of the seeds of a lawsuit that puts coronavirus relief money into the hands of people in prison—if they file a claim in time. Now, advocates for incarcerated people are rushing to get the word out as a deadline for filing looms.
A federal judge ruled last month in Scholl v. Mnuchin, a class action lawsuit against the IRS and U.S. Treasury on behalf of people in prisons and jails nationwide, that incarcerated people are eligible to receive economic impact payments authorized by the CARES Act. The IRS took the position that people in prison could not receive the payments, usually $1,200 per person, and instructed prisons to intercept any checks that were received and return them.
The plaintiffs argued that the statute was clear and had not excluded prisoners. Therefore, the IRS had no legal basis for keeping money from prisoners, who needed relief like others in dire economic circumstances.
“People in prison are among the hardest hit by the COVID-19 pandemic. Hundreds of thousands of them are also on the verge of leaving prison and re-entering society during a severe economic crisis and pandemic, where finding jobs and housing is a challenge,” said former Liman Fellow Yaman Salahi ’12, one of the attorneys who brought the lawsuit. “These people need the relief funds Congress allocated to them. By withholding that essential lifeline, the IRS placed an additional burden on people and communities who are already struggling.”
A Question of Eligibility
Natalia Friedlander ’18, the Liman Center’s first Resnik-Curtis Fellow that year, knows these struggles well. As a staff attorney at the Rhode Island Center for Justice, she represents low-income people in prison. Soon after Congress enacted the CARES Act on March 27, 2020, Friedlander, an intern, and a Liman Summer Fellow at Brown University researched the statute and the Administrative Procedures Act, which governs how federal agencies can develop and issue regulations. They tried to find out whether people like her clients were eligible to receive the funds, and saw no direct answer by the IRS.
“I looked through every IRS regulation that touched the CARES Act and didn't find any guidance there, either,” Friedlander said. “That’s when I posed the question to the Liman [group email] list, trusting that someone would either have the answer, or would know someone who did.”
Liman fellows and Arthur Liman Professor of Law Judith Resnik started reaching out to colleagues, including Lisa Foster and Joanna Weiss at the Fines & Fees Justice Center, Jeff Selbin of UC Berkeley School of Law’s Policy Advocacy Clinic, and many law professors. Meanwhile, the IRS announced on May 6, 2020 that incarcerated people could not receive relief payments. After more legal research, Liman affiliates and their colleagues concluded that the IRS’s decision had no basis in the law.
Soon after, Friedlander joined Salahi and virtually convened several people willing to help on the litigation on behalf of incarcerated clients. Salahi and his colleagues at the San Francisco office of Lieff Cabraser Heimann & Bernstein, Kelly Dermody and Jallé Dafa, filed the suit along with the Equal Justice Society’s Eva Paterson, Mona Tawatao, Lisa Holder, and Christina Alvernaz.
Adrienna Wong ’10, another Liman Fellow who is now a staff attorney at the ACLU of Southern California, helped assemble an amicus brief filed by the ACLU of Northern California and the East Bay Community Law Center as part of 23 groups working to help impacted individuals and their families.
Ruling: People in Prison Not Excluded
The Sept. 24 ruling by Judge Phyllis Hamilton of the Northern District of California ordered the IRS to stop denying the payments to people solely on the basis of being in prison. The court explained that “the statute is brief and to the point” in requiring funds for people who meet its criteria, and Congress provided no words excluding prisoners from receiving the payments.
“This lawsuit affirms that the IRS can’t get away with it just because they are dealing with people in prison,” Salahi said. “The most moving feedback we have heard is from incarcerated people who said Judge Hamilton’s order is the first time they had ever seen a court treat them with dignity.”
The Costs of Incarceration Fall on Prisoners and their Families
Judge Hamilton repeatedly cited the amicus brief, which argued that delaying CARES Act funds to incarcerated people causes irreparable harm to people in communities most affected by the COVID-19 crisis, specifically Black and brown communities. Those communities, the brief explained, are disproportionately impacted by incarceration. Moreover, people in prison incur expenses that are borne by their families.
Prisoners have to buy food beyond what is supplied to them, as well as soap, which prisons often do not provide, at commissaries. Many prisons also charge high rates for telephone calls, which the brief notes are important for prisoners to maintain contact with families. According to the brief, the national average charge for a 15-minute call in prison is $2.03. In jails, the same call averages $5.70. Advocates for prisoners have emphasized that telephone calls are critical during the pandemic because in so many facilities, family visits have been suspended.
“Incarcerated persons often cannot bear the entirety of costs associated with acquiring basic necessities in prison — food, hygiene, and communication,” Judge Hamilton wrote. “The remaining costs often fall on the families of the incarcerated.”
A New Challenge: The Deadline to Seek Funds
CARES payments are sent automatically to people who filed a U.S. tax return in the last two years. Most prisoners, however, do not meet the income threshold required to file returns. Like others who did not file, they must submit a claim to receive their relief payment. People in prison now have until Oct. 30 to mail a claims form on paper. The deadline for online filing is Nov. 21, but most prisoners do not have internet access. Advocates for prisoners have asked prison administrators to provide access for online filing or to distribute paper copies of the form.
Clinical Lecturer in Law and Senior Liman Fellow in Residence Zal Shroff said some prison systems have not yet said whether or how they will make claims forms available, so people who work on behalf of prisoners are spreading the word as the deadline approaches.
“The real push now is for every advocate to contact these folks and get them what they need to get this money,” he said.
To that end, Shroff and Clinical Associate Professor of Law Marisol Orihuela ’08 (another former Liman Fellow) sent an emergency mailing to about 650 prisoners at the Federal Correctional Institute in Danbury, Connecticut. That group is part of a class-action suit on behalf of medically vulnerable prisoners at risk for COVID-19. The letter provides instructions and forms. Individuals need to apply to receive the funds.
A Group Effort
Salahi said Liman fellows and affiliates around the country have been essential to getting the word out to prisoners and prisons officials so that people in prison could apply in time to receive the funds. The plaintiffs created a website with instructions for filing claims.
“It’s been a remarkable collective effort,” he said.
Friedlander agreed. “The Liman community is incredible for its breadth and depth of experience and willingness to support each other and I'm so grateful to be a part of that,” Friedlander said.