Over the last several years, the separation of church and state has become a prominent part of many legal battles. From the White House to the Supreme Court, the government has started to reinterpret a legal concept that dates back to the founding of the country. But where exactly did the notion that the government and religious institutions should be distinct come from? Read on to find out more about the history of the division of church and state in the United States and whether or not that distinction is in danger of eroding.

History of Church and State

The United States was founded in part by people fleeing persecution at the hands of state-sponsored religions. However, even after crossing the Atlantic, many of these same people were still under threat of religious persecution. The crown attempted to make the Church of England the official church of the American colonies. That effort was put to bed as part of the revolution and may have even galvanized efforts to separate religion and the government at the nation’s founding. Individual states also rolled back their own efforts to establish state-sponsored religions. Part of the impetus behind this effort was the writings of many thinkers from the Enlightenment and Protestant Reformation, which had important effects on the Founding Fathers as they wrote the Constitution.

Although the notion that there should be a division between church and state has been around for more than 200 years, it is not explicitly mentioned anywhere in the Constitution. The first recorded mention of the concept comes from a letter written by Thomas Jefferson to a Baptist Association in Connecticut. The idea gained traction and was first used by the Supreme Court in a decision in 1879. By 1947 it had essentially become a central part of constitutional law when it was cited as such in the Supreme Court decision in Everson v. Board of Education.

Precedents and Court Cases

While the specific phrase, “the separation of church and state,” is not in the Constitution, the distinction is implicit in several aspects of the document. First would be Article VI, which requires that all government officials swear loyalty to the Constitution and prohibits religious tests for public officials. Second is the Establishment Clause of the First Amendment, which prohibits the government from establishing any state-sponsored church. Lastly, is the Free Exercise Clause, which prohibits Congress from making laws against any religion. These provisions were later extended to the states following the adoption of the 14th Amendment.

These constitutional provisions and others have been used in a number of prominent Supreme Court cases, aside from the two previously mentioned. In 1948, in McCollum v. Board of Education, the Establishment Clause was invoked when the court ruled that religious instruction in public schools is unconstitutional. In 1952, in Burstyn v. Wilson, the court ruled that a state government cannot censor a movie simply because it offended people’s religious beliefs.

In the 1962 case Engel v. Vitale, the court ruled that school-sponsored prayer is unconstitutional. In 1968, a state statute banning the teaching of evolution was deemed unconstitutional. Three years later, in Lemon v. Kurtzman, the court created a test to determine if a government action violated the precedent of the separation of church and state. The test has three parts and can be used to evaluate a law’s constitutionality:

First, the statute must have a secular purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion.

In Allegheny County v. ACLU, the court determined in 1989 that nativity scenes in public buildings violated the Establishment Clause. In the case Church of Lukumi Babalu Aye., Inc. v. Hialeah, the court ruled in 1993 the city’s ban on animal sacrifice as part of religious exercise was unconstitutional. There are many other cases as well, but these notable examples show that the Court has actively defined a level of separation between the church and state over the years.

Recent Cases

In several recent cases, however, the pendulum seems to be swinging back to less separation between the church and state. One example comes from 2014 when the court ruled that Hobby Lobby, a privately-owned company, could refuse to provide health insurance that covers birth control to its employees on the basis of the owners’ religious beliefs. The ruling created an exception to the Affordable Care Act’s requirement that all employer-provided health insurance plans must cover contraception.

In another ruling from June, in the case Trinity Lutheran Church vs. Comer, the court weighed in on an issue that could have a major impact on the divide between church and state. This case centered around whether a private, religious school could use public funds for a secular project–namely rubberizing its playgrounds. While the state had initially ruled against the school because it was a religious organization, the Supreme Court ultimately ruled in its favor because it viewed the state’s denial to grant the school funding as discriminatory.

This ruling, in particular, is important for two reasons. First, it seemed to suggest that Blaine Amendments are unconstitutional. The Blaine Amendment was a failed amendment to the Constitution from 1875, which prohibited funds raised through taxes from going to religiously affiliated institutions. Although the effort failed, 35 states currently have their own laws that prevent public funds from going to religious groups.

The second major potential consequence of the Trinity Lutheran case concerns the extent to which this ruling will apply to funding for other activities conducted by religious organizations. Four of the justices attempted to head off this potential problem by clarifying in a footnote that the decision only applied to playgrounds. However, since only four of the nine justices signed off on the footnote, it is technically not the opinion of the court. The ambiguity there will likely result in future legal challenges, as religious groups will seek to identify new areas where they are eligible for public funding.

The video below discusses the facts of the Trinity Lutheran case in further detail:

The Trump Administration’s View

When it comes to the separation of church and state, like many other issues, the president has so far taken a seemingly idiosyncratic approach that may contrast with some of his campaign promises. In May, he signed an executive order that weakened the Johnson Amendment–part of a law that prevented religious organizations from getting directly involved in politics. That order was actually less controversial than what many expected based on Trump’s campaign rhetoric, although it remains to be seen whether he will take more aggressive action in the future.

Less moderate is the viewpoint of President Trump’s Secretary of Education, Betsy DeVos. DeVos has been an avid proponent of religious charter schools and even helped finance the campaigns of politicians who supported them. One of the fears following the Trinity Lutheran decision was that it opened a path to funnel tax dollars to religious charter schools, whose curricula would still not be overseen by the government.

Conclusion

The notion of the separation of church and state has existed in the United States for hundreds of years, and in Western Civilization long before that. Although the term is not explicitly used in the Constitution, the division has been established by the courts through their interpretation of it, particularly the Establishment Clause of the First Amendment. Over the years this specific clause, as well as a few others, has been used repeatedly to strengthen the divide between church and state.

However, the interpretation of the separation seems to have shifted in recent years, as the perception of an anti-religious bias has grown among many on the right, which the Supreme Court has reflected in its opinions. The clearest evidence comes from the recent Trinity Lutheran Church case, which not only allowed a religious school access to public funds but the opened door for future efforts to direct public money to religious organizations.

This opening presents an unclear path forward. While it is unlikely anyone will try to overtly knock down the proverbial wall between church and state, there are indications some holes might be drilled. While the extent of the recent shift is hard to determine, it does seem likely to continue.

Michael Sliwinski

Michael Sliwinski (@MoneyMike4289) is a 2011 graduate of Ohio University in Athens with a Bachelor’s in History, as well as a 2014 graduate of the University of Georgia with a Master’s in International Policy. In his free time he enjoys writing, reading, and outdoor activites, particularly basketball. Contact Michael at staff@LawStreetMedia.com.

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Many of us have received it at one point or another—the dreaded jury summons. You arrive home, collect your mail, and get the letter mandating that you show up at a particular courthouse at a given date and time. Many of us see jury duty as a necessary inconvenience—serving on a jury is part of our civic duties, but it absolutely can be an annoying interruption to our daily lives. And most people think being on a jury is incredibly simple—if you’re selected, it’s your job to determine guilt or innocence based on the facts, evidence, and testimony you’re shown. But what many people don’t realize is that guilt and innocence, as they are currently defined, are far from the only options. There’s one particularly controversial option open to juries that you may have never heard of: jury nullification. Read on to learn about jury nullification, what it is, and why it’s important to the American justice system.

Jury Nullification: A Primer

Jury nullification is essentially when a jury decides to acquit a defendant not because the evidence indicates that they were innocent, but because they disagree with the law or the harshness of the punishment the law mandates. Sometimes this is done to make some sort of political point; sometimes it happens on an individual basis. For example, imagine you have a woman, in a state where medical marijuana is illegal, who has purchased marijuana to give to her sister who has cancer and is suffering from nausea. If the buyer is caught, she could be charged for her crime—in this case, purchasing marijuana. There may be all the evidence in the world to indicate that she did buy the marijuana. In fact, the jury may believe beyond a reasonable doubt—the burden in a criminal case—that she is guilty of purchasing marijuana. But, if the jury believes that purchasing marijuana for medical reasons shouldn’t be against the law, or that the punishment that the woman would receive for purchasing marijuana is unduly harsh, they can still recommend an acquittal. At the most basic level, jury nullification means that a jury has chosen to acquit a defendant, despite believing that the defendant is guilty beyond a reasonable doubt.

Jury nullification is possible in the United States based on a few different principles. For one, if someone is acquitted of a crime, per the Fifth Amendment’s Double Jeopardy Clause, they cannot be tried again. Jury nullification is also possible because juries cannot be punished for the decisions that they make (although someone who becomes part of a jury with the intent to push jury nullification or in some other way not uphold their duties can technically be prosecuted, however rarely.) But generally speaking, for ethical reasons, juries cannot be punished for the decisions they come to, or the important American principle of being judged by a jury of your peers would simply be moot. Additionally, judges cannot direct a verdict of guilt, the way that they can a verdict of innocence if the evidence doesn’t match the conviction.

It’s difficult to actually quantify the number of acquittals that stem from jury nullification. Juries are never under any sort of obligation to explain why they have come to the decisions that they did—although individual jurors may speak about their opinions, if they so wish. Some researchers have attempted to study the subject, and indicate that jury nullification most likely plays a role in fewer than 10 percent of cases, but there’s no real way to pinpoint exactly which cases were affected by jury nullification.

Shh…

One thing that could contribute to jury nullification’s relative obscurity is that it’s in many ways a well-kept American secret. In fact, most people seemingly don’t know that it’s a possibility, and they almost certainly aren’t told about it while serving on a jury. An 1895 Supreme Court decision, Sparf v. United States, found that jurors aren’t guaranteed any sort of Constitutional right to be told about jury nullification. In many cases, attorneys will actively try to avoid seating jurors who may know about jury nullification by asking roundabout questions along the lines of: “do you have any beliefs that might keep you from making a decision purely on the basis of the law?”

While a juror cannot be punished for an acquittal, people can get in trouble as a consequence of jury nullification. One high-profile instance involved a man named Julian P. Heicklen, a retired chemistry professor who was an advocate for jury nullification. He was charged with jury tampering in 2011. He used to stand outside of a federal courthouse in Manhattan and hand out pamphlets about jury nullification, brandishing a sign that said “Jury Info.” He didn’t target any particular jurors, rather attempted to hand the pamphlets to anyone who walked by his station. The charges against Heicklen were dismissed in 2012, but the idea that informing people about jury nullification could be tantamount to jury tampering isn’t too far-fetched to imagine.

Specific Cases of Jury Nullification in the United States

Jury nullification has a long history in the United States. In fact, an early and well-known example actually predates the nation. In 1735, a man named John Peter Zenger printed articles that criticized the colonial British government. Zenger lived in the colony of New York, and it was against the law for him to publish anything without governmental approval. As a result of his controversial publications, he was charged with libel. Despite the fact that there was no question about whether or not Zenger had written the articles—he actually presented an affirmative defense in which he admitted that they were his work—the jury acquitted him.

Throughout American history, there have been other notable instances in which jury nullification is believed to have been used. Some were seemingly noble; others were almost certainly not. The Fugitive Slave Act was updated in 1850 to prescribe up to six months in prison for anyone who was found guilty of helping fugitive slaves escape. It’s widely believed that some of the acquittals that came out of that era came from abolitionist jurors essentially practicing jury nullification. On the other hand, there’s also evidence to suggest that jury nullification popped up in the Jim Crow-era south with some amount of frequency, when all-white juries chose not to convict white defendants who were accused of violence against black citizens.

There have also been recent cases of suspected jury nullification involving public figures. Washington D.C. Mayor Marion Barry was acquitted of 13 out of 14 drug charges, despite overwhelming evidence, including a videotape of Barry smoking crack cocaine. Barry’s lawyers argued that he was entrapped by the federal government. Barry, a longtime civil rights leader, was very beloved in D.C. and it was a popular belief in the nation’s capital at the time that he was targeted for his political stances and his role as one of the nation’s most prominent black elected officials.

Perhaps one of the most well-known suspected cases of jury nullification is O.J. Simpson. Although many of the jurors involved in that decision have come forward to say that they were compelled by the evidence presented by Simpson’s defense attorneys, Simpson’s attorney, Johnnie L. Cochran, was accused of hinting at the concept of jury nullification in his closing argument by the prosecutor in the case, Marcia Clark.

Other suspected jury nullification situations include the cases of Dr. Jack Kevorkian, the controversial physician-assisted suicide advocate who killed patients he deemed to be terminally ill; Lorena Bobbitt, the woman who cut her husband’s penis off after she claimed he raped her; and Oliver North, the NSA staff member who claimed responsibility for the sale of some weapons to Iran during the Iran-Contra affair.

While it’s obviously next to impossible to know exactly why juries chose to acquit Barry, Simpson, Kevorkian, Bobbitt, North, and many others, jury nullification was suspected based on the amount of evidence damning the defendants, and the decision on the jury’s part to acquit despite that evidence.

Conclusion

While serving on jury duty may not be the most glamorous of activities, it is often viewed as one of the most noble civic duties each American is beholden to. But, guilt and innocence aren’t always as black and white as they seem on “Law & Order.” In many cases, jurors take moral issue with the convictions they’re asked to participate in. That’s where jury nullification sometimes comes in. While advocates argue that it’s a way for jurors to protest unfair laws, detractors argue that it makes an unfair playing field for those accused of the same crimes, and can sometimes be used for nefarious or heavily biased purposes. But while jury nullification is somewhat of a well-kept secret, it sometimes makes its way in to the spotlight—often in cases that are beholden to the court of public opinion.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

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The Voting Rights Act of 1965 has long been considered a critical piece of federal legislation in the Civil Rights Movement. Enacted to prohibit racial discrimination in voting, specifically, it has protected racial minorities from unfair and predatory voting regulations like literacy tests, poll taxes, character tests, and property-ownership requirements, to name a few. In 2013, the Supreme Court decided on a case that struck down key provisions of the act, stating that they were based on old circumstances that had no logical connection to present day.

Since that decision, there have been numerous disputes occurring in states that were once subject to the old provisions of the Voting Rights Act. Lawmakers in several states–many southern–have started passing legislation with more stringent requirements to vote. It begs the question, is the Voting Rights Act still relevant and effective today?

History of the Voting Rights Act of 1965

The Voting Rights Act was signed into law in 1965 under President Lyndon B. Johnson during the height of the Civil Rights Movement. It was signed in the wake of “Bloody Sunday,” the infamous voting rights march from Selma to Montgomery where 600 people, including current Congressman John Lewis, were brutally beaten by Alabama state troopers. The Voting Rights Act was meant to eliminate discriminatory election practices, as states were still resistant to enforcing the Fifteenth Amendment, which declared that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”

Section 2 of the act mimicked the language of the Fifteenth Amendment by applying a nationwide prohibition on literacy tests to deny citizens of the right to vote. Moreover, the act also contained other special provisions that only applied to particular jurisdictions. Under Section 5, the act required that specific jurisdictions which attempted to pass new voting practices or procedures needed to receive “preclearance” from the Attorney General or the U.S. District Court for the District of Columbia. Section 4(b) of the act defines eligible districts as those which had a voting test in place as of November 1, 1964 and less than a fifty percent turnout for the 1964 presidential election.

For years, the Supreme Court continually upheld the constitutionality of the Voting Rights Act, including Section 5. This included thwarting racial vote dilution through discriminatory annexations, redistricting plans, election method changes, and changes in voter registration standards and procedures. The section was originally enacted for five years, but has been renewed continually since its enactment.

Shelby County v. Holder

In 2013, the Supreme Court ruled in the case of Shelby County v. Holder. The case, which was out of Shelby County, Alabama, concerned both Sections 4(b) and 5 of the Voting Rights Act. Shelby County sued Eric Holder, the Attorney General at the time, arguing that Section 4(b) and Section 5 were facially unconstitutional, and sought a permanent injunction against their enforcement.

After making its way through the lower courts, it finally reached the Supreme Court. The justices had to decide whether the renewal of Section 5 under Section 4(b) restrictions exceeded Congress’ authority under the Fourteenth and Fifteenth Amendments, in turn violating the Tenth Amendment and Article Four of the Constitution.

The Supreme Court held, in a 5-4 opinion, that Section 4 of the Voting Rights Act was unconstitutional. Essentially, the Court stated that the current formula conflicted with equal sovereignty of the states, as the disparate treatment of states was based on forty-year-old facts, which had no relationship to present day. As Chief Justice John Roberts wrote, “Our country has changed and while any discrimination in voting is too much, Congress must ensure that the legislation is passes to remedy that problem speaks to current conditions.”

In Justice Clarence Thomas’ concurring opinion he argued that Section 5 was also unconstitutional, contending that the blatant discrimination against certain voters that Section 5 was intended to protect against no longer existed. According to Justice Thomas, Congress cannot justify the burden of Section 5 without blatant discrimination.

Current Voting Rights Disputes

Since the court’s decision in 2013, many former preclearance states in the South are now embroiled in legal challenges surrounding voting laws. In Texas, the federal district court recently ruled that Senate Bill 14, which required voters to show a form of photo ID before casting a vote, had a discriminatory effect. Senate Bill 14 was passed in 2011, but was blocked by the preclearance requirement of the Voting Rights Act. After Shelby County v. Holder, Texas officials said they planned to enforce the law.

Lawmakers in North Carolina passed a photo ID requirement, and curbed early-voting hours, same-day voter registration, and limited other registration and voting options. This was eventually struck down by the Fourth Circuit, which noted that the provisions targeted African-Americans with “almost surgical provision.” The Supreme Court declined to stay the ruling in a 4-4 split after Justice Antonin Scalia passed away last year. North Carolina has asked the court to hear the case fully, and now that the court has added Justice Neil Gorsuch it’s possible that it could grant the petition for review.

Just recently, a lawsuit has been brought by the Lawyers’ Committee for Civil Rights Under Law on behalf of five organizations regarding the special election slated to take place in June 2017 in Georgia to replace Republican representative Tom Price. Since the Democrat, Jon Ossoff, failed to achieve the fifty percent threshold needed to win outright, a special election will decide his fate, against Republican Karen Handel. The suit alleges that the Georgia law disenfranchises citizens by requiring voters to have registered for the first round to vote in the runoff. Consequently, since the law means that voters would have had to register in March 2017 to vote in the runoff (before the first election even occurred), a large number of Georgians may be completely stopped from voting in the June 2017 election.

It is Still Relevant?

Just four short years ago, the Supreme Court in Shelby County v. Holder was not hesitant to point out how key sections of the Voting Rights Act were not relevant to modern times. The majority opinion concluded that since the act had worked so well in preventing racial discrimination, it was no longer needed. However, given the numerous laws that have sprung up since the court’s decision, it seems that the act is just as necessary today.

After the act’s initial enactment, it had an instant effect on decreasing racial discrimination in voting. Not only did the number of registered African-American voters increase substantially, but the number of African-Americans elected to office also grew. Moreover, economic growth occurred because of the act. A study of 40 North Carolina counties covered by the act found that those counties experienced larger growth in African-American incomes, occupational status, and attracted more revenue from county and other government sources.

Now, without Section 4(b) in effect to determine which jurisdictions must receive approval of any voting law changes, Section 5 has now become relatively inoperative. Thus, this has allowed states to change laws and policies without any federal oversight.

Conclusion

After Shelby County v. Holder, many former preclearance states jumped at the opportunity to pass more restrictive voting requirements. While lower courts have found subsequent legislation to contain discriminatory intent or effect, the Supreme Court has yet to weigh in on them. Thus, with a full court now in place after Justice Gorsuch’s swearing-in, the legacy of the Voting Rights Act is still up for debate.

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

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President Donald Trump recently issued a revised travel ban temporarily preventing people from six countries and all refugees from entering the United States. The original ban was immediately met with condemnation, protest, and legal action, leading the administration to change course. The revised version amounts to a significant scaling back relative to the original, but many of the longer term consequences remain the same. While this is the most recent and perhaps one of the most chaotic efforts to control who comes into the United States, it is far from the first. The history of U.S. immigration policy is littered with restrictions, quotas, and preferences for certain groups. Read on further to find out how President Trump’s executive action fits in the long lexicon of American immigration policy.

History of Immigration

The United States is and has been a land of immigrants long before it was even a country. European migration began in the 16th century, first with the French and Spanish then later with the English, who founded their first permanent colony in Jamestown in 1607. Many of the earliest European settlers traveled either to avoid religious persecution in their native land or to seek better opportunities. There was also a dark side to this original mass migration. Many white Europeans arrived as indentured servants and even more black slaves were forcibly removed from Africa and brought to the new world.

The second batch of migrants, which came to the United States in the 19th century, was also predominantly from Western Europe. Along with English settlers, came large numbers of Irish and German migrants. Approximately 4.5 million Irish made their way to the United States between 1820 and 1930, settling mostly along the coast. Meanwhile, roughly five million Germans arrived during the 19th century and often moved into the interior of the country. These groups were also joined by a large number of Chinese workers who came to the United States in search of gold. The Chinese immigrants tended to settle in the western portions of the United States.

At the end of the 19th century and into the early 20th century, the demographics of immigration shifted again. During this period there was a large rise in immigration from Southern and Eastern Europe. This was most clearly characterized by the nearly four million Italians who entered the United States. Following this wave, however, immigration slowed dramatically due to international events such as World War I and II, as well as the Great Depression. After World War II, refugees from Europe and the Soviet Union flocked to the U.S., along with those from Cuba following Castro’s rise. The video below from Business Insider provides a good illustration of where immigrants came from and when they arrived in the United States:

According to numbers from Pew Research Center, the highest percentage of foreign-born people living in the United States occurred back in 1890 when nearly 15 percent of the population was foreign-born. The lowest point occurred back in 1970 when just 5 percent of the population was born outside the United States. Recent data suggests we will likely reach a new high very soon. In 2015, about 14 percent of the population was foreign-born, a percentage that is projected to increase to nearly 18 percent by 2065.

The History of Immigration Restrictions

For almost as long as people have been migrating to the United States, policymakers have enacted a variety of different pieces of legislation to restrict immigration in general and for specific groups of people. First was the Naturalization Act of 1790, which made only free white people of good moral character who have lived in the U.S. for at least two years eligible for naturalization. This requirement was later changed to 14 years of residency and eventually back down to five years, due to political reasons. Another restriction was put in place in 1819 when Congress started requiring ship captains to provide a list of any foreign-born people onboard intending to immigrate.

Immigration restrictions did not really intensify until after 1850, which was the first time the U.S. Census asked what country people came from. This was followed by a dramatic increase in migration restrictions, particularly those targeting people from Asia. In 1862 the “Anti-Coolie” Act was passed with the aim of preventing Chinese immigration to California and forced California businesses that hired Chinese workers to pay an additional tax. There was also the Naturalization Act of 1870, which made free white people and “persons of African descent” and “nativity” eligible for naturalization but excluded Asians. Perhaps the most infamous example was the Chinese Exclusion Act passed in 1882, which barred all Chinese immigration for 10 years. This act was extended in 1892 by the Geary Act for 10 more years and then again indefinitely in 1902.

These restrictive measures extended into the 20th century as well, starting with the 1907 gentlemen’s agreement with Japan, where Japan agreed to discourage Japanese migration to the U.S. in exchange for more protections for Japanese people already in the U.S. There were additional restrictions at the state level as well, including in 1913 when California passed the Alien Land Law preventing Chinese and Japanese nationals from owning land. In 1917 Congress went a step further, banning immigration from many Asian countries with notable exceptions being Japan and the Philippines.

Another major immigration policy shift occurred in 1921 when the first of the Quota Acts was enacted. The law placed immigration quotas on countries to restrict the number of people from a certain country to three percent of the number that lived in the United States after the 1910 census. A similar act was passed in 1924 limiting the number of migrants from Eastern and Southern Europe to two percent of the 1890 levels. The adoption of the National Origins Formula delivered the final blow, completely banning immigration from Asia, while still allowing immigration from the Western Hemisphere.

It did not end with Asian immigrants either, as the Oriental Exclusion Act prohibited most immigration from Asia but also included foreign-born wives and the children of American citizens of Chinese ancestry. The Expatriation Act went even further, stating that an American woman who marries a foreign national loses her citizenship; this was partially repealed in 1922 but still held for women marrying Asian citizens. Even the Supreme Court entered the debate over race and citizenship in the case United States v. Bhagat Singh Thind. The court ruled that a caucasian man from India did not meet the definition of white person used in established immigration law, and therefore could not become a citizen.

In addition to people from Asia, other groups were also barred over the years for reasons that were not explicitly related to race or ethnicity. The Immigration Act of 1882, for example, put a $0.50 charge on people immigrating and forbid lunatics and those likely to become dependent on the state. The Alien Contract Labor Law was passed in 1885 to prohibit bringing foreign contract laborers to the country, except for certain industries. In 1891 Congress made polygamists, people with diseases, and those convicted of specific misdemeanors also ineligible for immigration. Political groups were also targeted–following the assassination of President William McKinley, Congress passed the Anarchist Exclusion Act in 1901 barring anarchists and political extremists.

Along with all these outright restrictions were a host of other measures to simply make the immigration process harder–like literacy tests on citizenship applications and additional agencies set up to oversee immigration–that, while not explicitly forbidding it, significantly hindered immigration for many groups. It was not until 1965 when Congress passed the Immigration and Nationality Act that many of the quotas and restrictions were finally eliminated.

The video below gives an overview of the immigration practices of the United States:

Immigrants in the U.S. Today

Despite the complicated history of immigration policy, the number of foreign-born people in the United States has increased dramatically since 1965. As of 2015, there were about 43.3 million foreign-born people living in the United States, which is approximately 13.5 percent of the total population. Of that amount, about 20 million are naturalized citizens, with the rest being permanent residents, people with temporary status, and people who entered the country illegally. The Pew Research Center estimates that in 2014 there was a total of 11.1 million foreign-born people in the United States who entered the country illegally.

The immigrant population rose from 9.6 million in 1970 to the 43.3 million here today. Over that time, the primary source of immigrants has shifted from Europe to Latin America and Asia. Specifically, in 2015 the top five countries of origin for new immigrants were: India, China, Mexico, the Philippines, and Canada. The 2015 numbers generally reflect the leading countries of origin for the total foreign-born population as well, which are led by Mexico, India, China, and the Philippines.

The immigrant population in the United States skews slightly female, at a little more than 50 percent. It is also older than the general U.S. population with a median age of 43.5 years. Demographically, nearly half of immigrants identify themselves as white, a little more than a quarter identify as Asian, and about 9 percent identify themselves as black. Ethnically, Hispanics and latinos are the largest group of immigrants, representing about 45 percent. In terms of education, the percentage of immigrants with at least a bachelor’s degree is almost the same as the national average, at about 30 percent. And geographically, states that border Mexico or have large population centers tend to have the most immigrants, with California leading the way followed by New York, Texas, Florida, and New Jersey.

Immigration and the Economy

From 2009 to 2011, the amount of money earned by immigrants was nearly 15 percent percent of all U.S. wages, although immigrants make up 13 percent of the overall population. Immigrants are more likely to be prime working age and work in higher proportions relative to their share of the population. Immigrants also own nearly one-fifth of all small businesses. Finally, nearly half of all immigrants work in white collar jobs and are often overrepresented in some middle-class occupations such as nursing.

While immigrants are working in disproportionately high numbers, they also generally do not harm the work opportunities for most native-born Americans either. While immigration’s effects on domestic workers is a hotly debated subject, many economists agree that it provides an overall economic benefit, although it could also have significant economic consequences for certain groups. In the long-run, immigrants can actually be beneficial to the American job market overall. Moreover, when immigrants drive wages down, it is often because they lack the protections that American citizens have and thus are susceptible to exploitation.

Immigrants, particularly undocumented workers, often pay into programs such as Social Security, which they cannot draw from, and are actually a net positive for the national budget. A review from the Social Security Administration found that undocumented workers paid as much as $13 billion into Social Security in 2010–which came in the form of payroll taxes from immigrants using fraudulent identification–but only received about $1 billion in benefits.

Aside from economic impacts, immigrants also affect American society in other positive ways. These include introducing new or different foods and cooking styles, presenting alternative forms of spirituality, and even incorporating non-traditional medical treatments.

Conclusion

The words inscribed at the foot of the Statue of Liberty in New York read, “Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore.” These inspiring words, originally written by the poet Emma Lazarus, perfectly encapsulate the ideals that many speak of when they refer to the United States as a nation of immigrants. However, for much of the nation’s history, the people and practices of this country have failed to live up to that ideal.

Donald Trump’s ban, while definitely not the first, is the latest in a long line of efforts to restrict immigration from certain areas and for certain groups of people. Although these restrictions are often passed under the guise of being in the best interest of America or its citizens, they can have the opposite effect. This is because immigrants are often willing to do many of the jobs native born citizens will not, at lower wages. Despite the United States’ complicated history, immigrants have continuously added to and enriched American culture.

Michael Sliwinski

Michael Sliwinski (@MoneyMike4289) is a 2011 graduate of Ohio University in Athens with a Bachelor’s in History, as well as a 2014 graduate of the University of Georgia with a Master’s in International Policy. In his free time he enjoys writing, reading, and outdoor activites, particularly basketball. Contact Michael at staff@LawStreetMedia.com.

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Do you read every article you can find about the Tidal lawsuits? Are you fascinated by the legal effort to recover art stolen by the Nazis during World War II? Do you have strong feelings about the legal side of “Deflategate?” Do you want a legal career that’s dynamic, fast-paced, and challenging? If you answered yes to any or all of those questions, a career in Entertainment, Arts, or Sports law may be something to consider.

These specialties incorporate a wide range of legal disciplines, including IP and Copyright law, Contract law, and Labor law. And without the behind-the-scenes work of the lawyers who specialize in these fields, our favorite music, TV shows, movies, sports, and art would be unrecognizable. So, how do you get started? The University of Miami School of Law, home to the unique Entertainment, Arts, and Sports Law LL.M program, has the answer. Read on to learn more.

A Primer on Entertainment, Arts, and Sports Law

First things first: what are we talking about here? These fields, while distinct, are certainly related. But it’s still important to understand some of the nuances.

What is Entertainment Law? 

There’s no set-in-stone definition of exactly what Entertainment law constitutes, but in many ways it involves the application of legal concepts to real world problems. Entertainment lawyers deal with a myriad of legal issues arising from the entertainment and performing arts industry, including TV, movies, radio, theater, and publishing. It can include anything from working on contracts for performers or employers, to filing trademarks, confronting First Amendment issues, and dealing with lawsuits involving those in the entertainment industry. According to Miami Law:

Although entertainment lawyers might represent ‘talent,’ such as directors, actors or musicians, they more often advise companies that produce and distribute entertainment content, license celebrity brands, purchase and sell motion picture or music publishing catalogues, raise or invest debt and equity capital, and purchase and sell companies engaged in one or more of such activities.

Entertainment law is fast-paced and multi-dimensional, and can incorporate many legal questions that a lot of us probably don’t even think about on a daily basis. For example, imagine some of the legal issues that go into creating a movie:

• Actors, writers, and workers on the movie will need contracts to be negotiated. The presence of unions–for example the Screen Actors Guild–may also mean that labor law considerations are in the mix.
• Music used in the movie will need to be properly licensed.
• Marketing materials for the movie, including catchphrases, may need to be trademarked.
• Say the movie involves a “real life story” or biography–an attorney may be needed to deal with any defamation lawsuits that arise.

This list is by no means dispositive, but it goes to show that there are a lot of moving parts that go into what we see as final products in entertainment–and many of them require lawyers.

What is Arts Law?

Like Entertainment law, Arts law exists at a large intersection of legal issues, largely focused on the creation, ownership, and business of art. Intellectual Property law plays a large part–as art depends on the creation of unique work–but Estate and Property law, Contract law, Torts, and other areas factor in as well.

According to Miami Law:

Today, art lawyers work in law firms, museums, auction houses, and financial institutions. Works of art are bought and sold, implicating issues of good title and authenticity; loaned from museums to galleries and other museums, implicating insurance and contract matters; travel internationally for both commercial and private purposes, implicating international treaties and customs laws and regulations; and are often important assets in decedents’ estates, implicating tax and estate planning concerns. An art lawyer must be able to navigate this complex terrain of legal concepts and practical strategies.

Let’s look at an example, like we did with Entertainment law. What might you need to consider if you’re providing legal counsel to an artist?

• Contract law comes into play if the artist wants to be represented in any galleries.
• The artist may be able to receive royalties if their art is used for commercial purposes, or if someone uses the artist’s art without their permission, intellectual property rights could protect them.
• Artists sometimes become involved in performance art as public protests–First Amendment considerations may be at issue.

If any of those hypothetical issues piqued your interest, maybe Arts law is a discipline that you would want to consider.

What is Sports Law?

Sports law, like its Entertainment and Arts law counterparts, also sees a mix of legal principles and factors. Sports lawyers can represent players in the sports industry, including professional and amateur athletes, venues, organizations and teams, and companies that work with athletes or teams.

According to Miami Law:

Sports lawyers usually require knowledge of various areas of law including: contracts, labor, antitrust, tax, intellectual property and media law. To represent sports industry clients, a lawyer also needs strong contract negotiation and drafting skills in addition to an understanding of the arbitration process. Other areas of law, like immigration, can also come into play for foreign athletes and international leagues or clubs.

Let’s try our “day in the life” exercise with Sports law. Let’s say that you represent a team. Here are some questions that could come up:

• You’ll be needed to draft contracts for the athletes who join the team.
• In the cases of international athletes, you may need to deal with Immigration law to ensure that they are able to work in the United States.
• If an athlete gets injured in the course of a game, he may sue the organization he’s playing for.
• A team’s logo and mascot can be trademarked, and you may need to deal with infringing uses on unlicensed merchandise.

Needless to say, there’s no guarantee that any given sports lawyer will deal with those exact issues. But it’s important to note that Sports law, just like Entertainment law and Arts law, requires lawyers who enjoy working in an unpredictable and quickly evolving field.

You’ve Convinced Me–I want to be an Entertainment, Arts, or Sports Lawyer. Where do I start?

Miami Law’s LL.M in Entertainment, Arts, and Sports Law can help you make that dream a reality. The program is designed for working lawyers who want to narrow their focus on one of these specialties or students who have already received their law degrees abroad. An LL.M can provide the leg up you need in a competitive environment. The clients you’ll represent–whether it’s an actor, artist, athlete, venue, or company–need to know that you have the wide breadth of legal knowledge to help confront whatever problem they run into. A focused LL.M could make it clear that you have that expertise.

Why Miami Law?

Miami Law’s LL.M program offers some unparalleled perks to get you on the right track.

Location, Location, Location 

Miami is a vibrant, bustling city that serves as an epicenter for entertainment, art, and sports. Miami is home to a number of entertainment production companies, including Telemundo, Univision, HBO Latin America, Viacom International, Sony, and BBC Latin America. The art scene in Miami features many galleries and museums; the city has traditionally been known for its art deco flair. And don’t forget–Miami is home to the Miami Heat, the Miami Dolphins, and the Miami Marlins, in addition to countless amateur and college teams.

Connections are Key 

Who are some Miami alums in the fields of Entertainment, Arts, or Sports law? Take, for example, Horacio Gutierrez, class of ’98. He now serves as General Counsel for Spotify, one of the fastest-growing music streaming services in the world. In the field of Sports law, Dennis Curran is a Miami Law alum, class of ’75. He currently serves as the Senior Vice-President and General Counsel for the NFL Management Council, which represents the 32 teams in the NFL. And Professor Stephen K. Urice, the Director of the Arts law track, comes from a background in arts and museum law–at one point he directed the national culture program at The Pew Charitable Trusts. Miami Law’s faculty, staff, and alumni can help you bridge the gap between your education and getting involved in the job of your dreams.

Hands-On Experience

Miami Law provides its LL.M students with unparalleled hands-on experience. Each of the three tracks–Entertainment law, Art law, and Sports law–requires a practicum component that will give them experience in the field. For example, Maria Jose Rivera, a student in the LL.M program, is completing her practicum requirement at the NBC Universal Telemundo. She describes her work as a fall legal intern to the Telemundo Network with Music Affairs, saying:

I want to get to counsel and represent television and motion picture productions in all legal aspects. Whenever I walk into a studio set, I get thrills by seeing it and hearing in all in real life. I see the drafting of agreements as creating the safeguards to making those audiovisual productions come strong from a legal standpoint.

And she described her experience with the LL.M program as a whole, saying:

The program has helped me get there by not only placing me into the real practice but by granting me the privilege to work with and learn from these role models I look up to professionally. I’m drafting and negotiating agreements for the first time while being challenged to develop the skills that are in demand when becoming an effective lawyer in the entertainment industries.

So, are you ready to make a change, and work on something you’re truly passionate about? Consider Entertainment, Arts, or Sports Law. It’s a growing and exciting field, and it’s time for you to take the plunge.

Resources

Primary

Miami Law: LL.M. in Entertainment, Arts and Sports Law

Miami Law: Entertainment Track

Miami Law: Art Track

Miami Law: Sports Track 

Additional

LexisNexis: Researching Entertainment Law

ABA: What Is Sports Law and Who Is a Sports Lawyer?

Lawyers for the Creative Arts: Legal Issues in Film Production

University of Miami School of Law

The University of Miami School of Law’s mission is to foster the intellectual discipline, creativity, and critical skills that will prepare its graduates for the highest standards of professional competence in the practice of law in a global environment subject to continual–and not always predictable–transformation; to cultivate a broad range of legal and interdisciplinary scholarship that, working at the cutting edge of its field, enhances the development of law and legal doctrine, and deepens society’s understanding of law and its role in society; and to fulfill the legal profession’s historic duty to promote the interests of justice. Visit www.law.miami.edu for more information. The University of Miami School of Law is a partner of Law Street Creative. The opinions expressed in this author’s articles do not necessarily reflect the views of Law Street.

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The estate tax, more commonly known as the “death tax,” is one of the most hated taxes in the United States. Long considered to be a contentious issue in the tax policy field, Americans are largely not comfortable with the concept of taxing inheritances. However, estate taxes align perfectly with America’s historical idea of fairness and not encouraging wealth to accumulate long after death. Despite citizens’ contempt for taxes at death, few will ever actually be subject to the estate tax. Read on to learn more about the estate tax, and what happens to our money after we die.

Evolution and History of the Estate Tax

The Internal Revenue Service defines the estate tax as “a tax on your right to transfer property at your death.” Taxation at death can be traced back as far as ancient Egypt, around 700 B.C. In feudal Europe, it was also quite common to impose taxes on the death of a family member, normally amounting to a family’s annual property rent.

Early American government abolished laws that encouraged the accumulation of wealth over many generations. In 1777, Thomas Jefferson cited Adam Smith, a free market capitalist, when stating that “the earth and the fulness of it belongs to every generation, and the preceding one can have no right to bind it up from posterity.” The concept that people should control their estates after death was considered “manifestly absurd” by both Jefferson and Smith.

The modern estate tax evolved through the Stamp Tax of 1797 (taxes levied on required federal stamps on wills, inventories, and letters of administration), the Revenue Act of 1862 (the addition of a legacy or inheritance tax along with the stamp tax on the probate of wills or letters of administration), and the War Revenue Act of 1898 (a federal legacy tax proposed to raise revenue for the Spanish-American War, levied only on personal property).

The Estate Tax 1900 to Present

The Revenue Act of 1916 specifically created a tax on the transfer of wealth to beneficiaries. This levied a tax directly on the estate itself, rather than an inheritance tax. Over the next few decades, laws surrounding the estate and gift tax framework shifted immensely. A gift tax was repealed in 1926, then reintroduced in 1932; tax bases expanded; life insurance rules were modified to exclude insurance the decedent never owned; and marital deductions frequently changed. Significant tax law changes came around with the Tax Reform Act of 1976. This created a unified estate and gift tax framework; prior to this reform, it was far cheaper to give property away during life as gifts, as there was a higher tax rate applied at death. The generation-skipping transfer trust tax was also added to combat creative trust frameworks that paid money out to intervening beneficiaries, avoiding taxes altogether.

The Economic Growth and Tax Relief Reconciliation Act of 2001 allowed for a phasing-out of the estate tax, along with a lowering of annual top-rate estate taxes. It also lowered capital-gains taxes, in addition to lowering income taxes. Much of the resistance to the estate tax has come from powerful public relations campaigns and lobbying efforts. Many wealthy families have lobbied for years around an estate tax repeal and funded actions to make it a reality: including the Mars Chocolate family, the L.L. Bean family, and the Campbell’s Soup family.

The “Death Tax”

While citizens feel very strongly about the “death tax,” it only affects a small percentage of families each year. According to a 2016 Gallup poll, 54 percent of those polled supported a repeal of the estate tax. Under the current law, however, the 40 percent tax rate is applied only to estates worth more than $5.45 million for individuals and more than $10.9 million for married couples. If a decedent has an estate worth less than that, then it is automatically passed on to heirs completely tax-free. Additionally, individuals are able to give away $14,000 a year as a gift to an unlimited amount of people without incurring any tax.

So, an overwhelming majority of families in the U.S. are not subject to the estate tax. For example, in 2015, only 4,918 estates were subject to the tax, yielding $17 billion (less than 1 percent of federal revenue). From that number, 266 estates valued at $50 million or more brought in $7.4 billion in revenue. According to the Center on Budget and Policy Priorities (CBPP), 99.8 percent of estates are exempt from the estate tax. The CBPP also notes that $275 billion will be generated from 2017-2026 under the current estate tax law. While that is still less than 1 percent of federal revenue during that same period, it is more than the government will spend on the Food and Drug Administration, Centers for Disease Control and Prevention, and Environmental Protection Agency combined. Estate taxes clearly remain an integral source of revenue for the federal government.

Moreover, the interesting thing about many estates is that most will not ever actually be taxed. The CBPP estimates that 55 percent of the value of the estates worth more than $100 million are comprised of unrealized capital gains; those gains have not yet been taxed nor will they ever be taxed under current estate tax laws. Capital gains are only taxed when an owner of an asset “realizes” a gain; therefore, if an asset is held by an owner until death, increasing in value over the years, it will never actually be subject to income tax.

Generally, taxable estates pay less than one-sixth of their value in tax–roughly 16.6 percent, far below the top statutory rate. Additionally, the significant number of loopholes and generous deductions enable many estates to avoid taxes altogether. Hence, many families are able to pass on numerous assets to future generations tax-free due to advantageous laws.

Estate Tax Repeal

Republicans have long sought to repeal the death tax, and now thanks to President Trump, that dream may be realized. Abolishing it completely would save millionaires and billionaires in the U.S. roughly $20 billion a year in taxes. An action to repeal the estate tax would be beneficial only for the top 1 percent of families in the country, something that appears to be completely at odds with the working-class voters who helped to elect Trump. Under the current administration, passage of a bill to repeal the estate tax in the Republican-led House is practically certain; as for the Senate, a decade-long repeal is possible under a reconciliation which needs 50 senators. To repeal the estate tax permanently, 60 votes would be needed, which may be more difficult to garner.

“Donald Trump” Courtesy of Gage Skidmore : License: (CC BY-SA 2.0)

Opponents of the estate tax have contended that it hurts family farms and small businesses immensely. In reality, very few small businesses and farms owe any estate tax in a given year. In 2013, only roughly 20 small businesses and small farm estates were subject to the estate tax, and estimates show that those estates only owed about 4.9 percent of their value in taxes.

If repealed, President Trump’s estate alone would save about $564 million, based on his estimated net worth of $3 billion (although he has argued that his net worth is even higher). Trump’s team, which is comprised primarily of extremely wealthy individuals, would also benefit greatly from an estate tax repeal. However, a proposed plan to repeal the estate tax indicates a bit of compromise as well. Instead of capital gains being able to pass to heirs tax-free, those assets would be subject to a capital gains tax at death, with an exemption of the first $10 million in assets for family farms and small business owners. A tax on capital gains would only top out at 20 percent, while the estate tax is at 40 percent. Thus, repealing the estate tax and replacing it with a capital gains tax would be extremely beneficial for wealthy families. 

Conclusion

The estate tax is misunderstood by most Americans; despite all of the negative sentiments surrounding it, only a minuscule number of estates will be affected by it annually. In actuality, a repeal of the estate tax would only benefit a small number of incredibly wealthy families in the U.S., while simultaneously depriving the federal government of billions of dollars of revenue each year. When weighing the merits of the estate tax system, one should consider the benefits of allocating society’s resources and promoting equality over the potential consequences of binding the majority of assets and wealth into a small percentage of the American population.

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

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Capital punishment in the United States has long faced public scrutiny. The death penalty is a topic of debate among Americans largely due to concerns about its efficacy in deterring crime, as well as growing rates of botched executions. In 2016, the U.S. saw a record decline in death penalty use and public support. A number of states postponed scheduled executions due to drug shortages and botched executions. While capital punishment remains legal in 32 states, this number could steadily decrease based on the current political climate.

Current Death Penalty Trends

The Death Penalty Information Center (DPIC) reported that 30 people were sentenced to death in its 2016 Year End Report–the lowest number of death sentences since states began to re-enact death penalty statutes in 1973. It found that executions also declined more than 25 percent, with only 20 executions carried out in 2016 by just five states.  Public opinion polls show support for the death penalty at a four-decade low. At just 49 percent, support fell below 50 percent for the first time in 45 years, according to a study by the Pew Research Center. This is a seven point drop from the previous year.

The DPIC concluded that the number of people waiting on death row decreased in 2016, as prisoners either passed away in custody, or obtained relief from their convictions. There was also a decline in the number of counties in death penalty states pursuing capital punishment. This past year three states–California, Nebraska, and Oklahoma–overwhelmingly voted to reject propositions that would have eliminated the death penalty. In California there hasn’t been an execution since 2006, and yet residents still seem to be in favor of its use, when deemed appropriate. Geography also played a roll in American death penalty trends. Eighty percent of all executions in 2016 were carried out by only two states–Texas and Georgia.

Mental Health Issues

Historically, executed prisoners tend to be those who are the most vulnerable, with the poorest legal representation. The DPIC’s review found that at least 60 percent of executed prisoners exhibited a combination of mental health issues including: signs of mental illness, brain impairment, and low intellectual functioning.

In Texas, a mentally ill prisoner was executed who exhibited signs of mental illness since infancy and was diagnosed with a variety of mental afflictions by the time he was 18. Georgia also executed an intellectually disabled prisoner, who was black, even though he had an openly racist juror, a trial lawyer who slept through portions of the trial, and significant evidence of an intellectual disability presented in post-conviction proceedings. Additionally, six of the prisoners who were executed in 2016 were 21 or younger at the time of their offenses.

A case argued before the Supreme Court in late 2016 attempted to dispute the constitutionality of executing prisoners with intellectual disabilities. Moore v. Texas questions the “standards that may be used to determine whether a defendant convicted of murder is mentally deficient.” Lawyers for the defendant argued that Texas utilizes outdated methods of determining mental capacity, rather than the standards mandated by the Supreme Court. The defendant, Bobby J. Moore, has an average IQ of 70 based on multiple tests. Texas argued that there is no national standard for determining mental capacity; the ruling from the Supreme Court, while still currently unknown, will certainly have a profound effect on other states’ death penalty procedures.

Botched Executions and Experimental Drugs

The overall decline in the use of the death penalty may also be attributed to recent botched executions. Lethal injection, the most utilized form of execution, has a botched execution rate of 7.12 percent. All manufacturers of FDA-approved drugs that could potentially be used for lethal injections have enforced a strict ban on selling their drugs for that purpose; companies are no longer keen on associating any of their products with capital punishment proceedings.

Problematic lethal injection procedures have been of great concern for the past few years and have occurred all over the country. In Ohio, the prisons’ agency is attempting to obtain a drug that could reverse the lethal injection process if needed. If executioners were not confident the first three drugs rendered a prisoner unconscious, they would be able to use the drug to reverse the effects. This request comes after executions have been on hold in the state since January 2014, when a prisoner gasped and snorted during the 26 minutes it took him to die. Arizona’s last execution was also in 2014, when a prisoner took two hours to die after receiving an injection of the drug midazolam.

As recently as December 2016, a man executed in Alabama struggled for air, coughed, heaved, and clenched his left fist during the 13 minutes of his execution. Two consciousness checks were performed during the execution. The inmate moved his arm both times after the tests. The first drug used in the three-drug cocktail was midazolam. The Supreme Court ruled in a 5-4 decision in 2015 that the use of midazolam is constitutional, in spite of reports that the drug does not reliably render an inmate unconscious.

Despite its death row population remaining in limbo after the Supreme Court struck down the state’s capital sentencing system in January 2016, Florida is poised to start utilizing a new experimental lethal injection drug. Such a move is likely to cause more litigation in the coming future, as anti-death penalty advocates are troubled by the use of experimental procedures in lethal injections.

Efficacy in Deterring Crime and Racial Bias

Though capital punishment is employed to deter violent crime, there is little evidence that it actually does so. In a 2008 Death Penalty Information Survey, 88 percent of polled criminologists said they do not believe that capital punishment is an effective deterrent for crime. As recently as 2015, non-death penalty states had a murder rate of 4.13, while death penalty states had a murder rate of  5.15—a 25 percent difference. In every year since 1990, non-death penalty states had a lower murder rate than death penalty states. And in a 2008 poll of 500 police chiefs, the death penalty ranked last in their priorities for reducing crime.

Moreover, the racial bias in the criminal justice system is astounding. Over half of the current death row population since 1976 is non-white. Interracial murders also disproportionately target blacks. Since 1976, 283 black defendants have been executed for the murder of a white victim; this is in stark contrast to the 20 white defendants executed for murdering a black victim. A 2014 study performed by Professor Katherine Beckett of the University of Washington, found that jurors in Washington from 1981-2014 were four and a half times more likely to sentence a black defendant to death than a non-black defendant.

Conclusion

The decline in the number of prisoners executed in 2016, as well as the decrease in the number of people sentenced to death, seem to signify a move away from capital punishment in the U.S. Such a drop in executions may be attributed to states putting their executions on hold after extremely troublesome lethal injection proceedings over the past few years, rather than a general shift toward other sentencing alternatives. Regardless of waning numbers, citizens voted in large margins to retain the death penalty in multiple states this year, indicating that support for the death penalty in particular cases is still acceptable to many. Whether any state protocols and procedures will change, however, depends heavily on Supreme Court decisions in the future.

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

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During the campaign, President-elect Donald Trump gave a speech in the wake of two bombings in New York and New Jersey. In response, Trump said that the police force should have the ability to profile suspects in order to be able to target individuals and subsequently catch criminals faster. While people quickly debated what exactly Trump was calling for, whether it was racial profiling versus criminal profiling, his comments immediately stirred debate over the questionable practice.

Read on to find out more about the history of racial profiling, how it is still used, its effectiveness, and the impact it has on individual freedom.

History of Racial Profiling

According to the ACLU, racial profiling is “the discriminatory practice by law enforcement officials of targeting individuals for suspicion of crime based on the individual’s race, ethnicity, religion, or national origin.” Racial profiling is closely associated with and only narrowly differentiated from criminal profiling which “is the reliance on a group of characteristics they believe to be associated with crime.”

In criminal profiling, the cumulative characteristics of people who have committed a crime are used to identify those who may be likely to commit the same crime. However, racial profiling assumes any member of a racial or ethnic group of people may commit a crime because of who they are.

In addition, part of racial profiling is willfully overlooking members of the majority when they commit crimes. The ACLU cites the following example:

An African American man in Maryland, who after moving into a white community, was attacked and subjected to property damage. Local police failed to respond to his repeated complaints until they arrested him for shooting his gun into the air, trying to disperse a hostile mob outside his home.

The accompanying video looks at the practice of racial profiling and what it means:

Racial profiling in the United States traces its roots all the way back to colonial times. One of the earliest examples was a registry in which free blacks were required to enlist. The registry kept track of a number of physical characteristics as well as how that person came to be free. The idea behind it was to limit the movement of free black people around the South. If they were unable to prove their status they could even be forced into slavery. This kind of targeting particularly reemerged during the Jim Crow era and continued on throughout the Civil Rights Movement and into the present. Often when it comes to racial profiling, the discriminatory practices are not written down in a record but implied.

The closely associated criminal profiling also has a long history, dating back to the 1880s in England when experts tried to track down the elusive Jack the Ripper. Profiling in the United States began gaining momentum in the late 1950s with profiles contributing to the arrest of suspects in high-profile crimes. In 1974 the FBI launched its Behavioral Science Unit utilizing profiling techniques to locate serial rapists and murders. Over the years psychology has taken a major role in these profiles as certain, common traits are identified in many of the cases and used to pinpoint other offenders. While this approach is used more to identify specific individuals guilty of specific crimes, it also creates a template for future investigations to use as well, which is similar to how the ACLU describes criminal profiling. Nevertheless, these same profiles cannot be overly broad generalizations, or they risk being another form of racial profiling.

The Use of Profiling

In his speech, one of the points Donald Trump alluded to was Israel’s use of racial profiling and the success it has had with it. While many other Western nations have shunned the practice, Israel has readily adopted it as a means of protection. This is especially true in airports where people with Jewish last names or links to Israel are able to quickly move through security while those from other regions, particularly from predominantly Muslim regions, are often held up for hours for intense inspections.

While the United States does not have similar programs, for the most part, there is one glaring exception that generated a lot of high profile coverage just a few years ago. That is the infamous stop-and-frisk program that was a major component of the New York Police Department’s effort to fight crime. While the city claimed this program was an effective way to reduce crime, a federal judge disagreed, claiming instead that it provided cover for officers to target non-white citizens in unnecessary and illegal ways.

While police officers are well within their right to stop someone they suspect of committing a crime or are likely to commit a crime, they must be able to demonstrate some cause. However, in the case of stop-and-frisk, people of color were being stopped at a disproportionately high rate, which led a federal judge to deem the policy unconstitutional. In fact, 83 percent of the stops conducted by the NYPD between 2004 and 2012 were of black or Hispanic people, while those groups made up slightly more than half of the city’s population. The following video gives the details behind the stop-and-frisk ruling in New York:

Although stop-and-frisk was really the only major program that led to clear racial profiling in an attempt to fight crime, as mentioned earlier, racial profiling is often done without a directive or anything on the books. The ACLU, for example, has a long list of what it claims are incidents of racial profiling against a variety of minority groups. Over the last couple of years, there have been a number of high-profile incidents involving white police officers and non-white victims, which certainly seem to indicate racial profiling does still occur even without an explicit policy.

When it comes to criminal profiling, the practice has gotten a lot of attention in popular culture but its effectiveness has also been called into question. Part of the problem is that criminal profiling is not much more reliable than racial profiling. According to a small study done in Britain, only 2.7 percent of 184 cases showed that the practice helped lead to an arrest. The main issue was there were so many different characteristics that it was hard to create a single profile that would be used to capture criminals. This sentiment was echoed by a Secret Service report on school shooters that suggested that potential shooters would have to be identified on an individual basis because they were all so different. The most common results, unfortunately, were confirmation bias at best, and at worst simply another form of prejudicial profiling.

Evaluating the Use of Profiling

Since racial profiling only targets a select group of people it is unsurprisingly not very effective. For the clearest evidence, one need only to look at New York’s stop-and-frisk program once more. Of all the people stopped, nearly 90 percent were released with no further action and were free to go. In other words, only 6 percent of stops ended with an arrest and another 6 percent resulted in court summonses. In fact, the data indicates that stop-and-frisk likely had little relation to the number of murders and other violent crimes in New York.

Other instances, such as the ones listed by the ACLU, also show how racial profiling is typically not effective. In fact, these instances of racial profiling only seem to make matters of crime worse as they encourage disaffected people to lash out in anger.

Impact

Not only is racial profiling ineffective it can also be harmful in the long run. The reason for this is because people who are unfairly targeted by police tend to feel a reduced trust in the police force as an effective means of fighting crime. When people do not trust the police, then the police are less able to do their jobs because they lack both authority and the necessary assistance from communities to help them with their work.

This feeling of being excessively targeted also seems to be supported by the numbers. The clearest example, and by now one that is well-worn, is the existence of clear racial discrepancies in prisons. Black male children born in 2001 are approximately 5.5 times more likely than white children to be incarcerated at some point in their life.

From a dollars and cents perspective, racial profiling is also costly. Retraining officers following a racial profiling incident or paying a settlement for racial profiling can cost a city or police department millions, if not tens of millions of dollars. There are countless examples of this, one of the most egregious is in Arizona–where the actions of notoriously prejudiced Sheriff Joe Arpaio just cost his county $22 million in settlements with Latino community members.

Conclusion

Like other controversial techniques for preventing crime, racial profiling does have its defenders. They argue that it has been successful in reducing crime and point to examples like stop-and-frisk in New York and to other countries that embrace the measure such as Israel. It even has a closely related cousin, criminal profiling, which relies on somewhat related methods to help in the hunt for criminals.

However, like many of those very same controversial techniques, the numbers suggest racial profiling actually does not really reduce crime at all. In fact, it may actually increase crime by lowering trust in police and diminishing officers’ effectiveness in minority communities. It also seems to fill prisons in the United States disproportionately by race while also costing police department millions in settlements and training.

Racial profiling then seems to be a practice that is more harmful than good. However, the reality of that may not outweigh some people’s perception that it is effective. In either case, the practice is unlikely to be done away with entirely, in the meantime it is likely to make the tenuous relationship between the police and many communities even worse.

Resources

CNN: Donald Trump Defends Racial Profiling in Wake of Bombings

ACLU: Racial Profiling: Definition

History News Network: The Roots of Racial Profiling

Haaretz: in Israel, Racial Profiling Doesn’t Warrant Debate or Apologies

The New York Times: Racial Discrimination in Stop-and-Frisk

American Psychological Association: Criminal Profiling: The Reality Behind the Myth

Center for Science and Law: Criminal Profiling, Present, and Future

National Institute of Justice: Race, Trust, and Police Legitimacy

Economic Policy Institute: Where Do We Go from Here? Mass Incarceration and the Struggle for Civil Rights

CNN: Racial profiling Costs Arizona County $22 million

Brennan Center for Justice: Ending New York’s Stop-and-Frisk Did Not Increase Crime

Michael Sliwinski

Michael Sliwinski (@MoneyMike4289) is a 2011 graduate of Ohio University in Athens with a Bachelor’s in History, as well as a 2014 graduate of the University of Georgia with a Master’s in International Policy. In his free time he enjoys writing, reading, and outdoor activites, particularly basketball. Contact Michael at staff@LawStreetMedia.com.

The post Judging a Book by its Cover: The History of Racial Profiling in the United States appeared first on Law Street.

Throughout most of our history, rape was a property crime.

Today we do not, in the modern United States at least, think of a woman’s sexuality as a financial asset. But that is a recent phenomenon. For most of our history, rape was not treated the same way as other violent assaults because it wasn’t just a violent assault, it was also a crime against property.

You can see this view–of a woman’s sexuality belonging to her father and later her husband–in laws concerning rape and sexual assault. It was even possible for a father to sue a man who had consensual sex with his daughter because he had lost the value of his daughter. Based on this view, value is lost in terms of her work if she became pregnant and was no longer able to earn wages, or in terms of a future wife for someone else because of this stain on her character. Men could not be held accountable for raping their wives because a wife was a man’s property and consent to sex–at any time of his choosing–was part of the arrangement.

Lest you think that these laws are ancient examples of a culture that no longer bears relation to our current policies on rape, spousal rape was not made illegal in all fifty states until 1993, where it still may carry a less severe sentence than other rape offenses. The tort of seduction was technically on the books in North Carolina in 2003.

This context is important given our current cultural attitudes toward sexual assault. To understand this culture and how it can be amended, we need to look more deeply at the historical understandings of rape and consent.

Force Means No

The framework for defining rape underpins our understanding of who is required to prove consent or non-consent. The Hebrew Scriptures, which established longstanding cultural norms that helped form a basis for what was morally and legally acceptable in early America, make a distinction between a woman who was raped within a city and one who was raped outside of the city limits. The first woman was stoned to death and the second considered blameless (assuming she was a virgin). This distinction is based on the idea that it was the woman’s responsibility to cry out for help and show that she was non-consenting. A woman who was raped in the city obviously had not screamed because if she had someone would have come to her rescue and stopped the rape. The woman outside the city had no one to rescue her so she could not be blamed for being victimized.

This brutal logic, which is completely inconsistent with how we know some victims of rape react to an attack, was continued in the American legal system when our laws on rape were formulated. Rape was defined as a having a male perpetrator and a female victim and involving sexual penetration and a lack of consent. But it was again the woman’s responsibility to prove that she had not consented and the way that this was demonstrated was through her resistance. She was only actually raped if she had attempted to fight off her attacker. Different jurisdictions required different levels of force to show a true lack of consent. For example, fighting off an assailant to your utmost ability or even up to the point where the choice was either to submit to being raped or to being killed. Indeed, the cultural significance of chastity as a virtue that the female was expected to guard was so profound that many female Christian saints are saints at least in part because they chose to die rather than be raped or be a bride to anyone but Christ.

Potential canonization aside, it was consistently the responsibility of the woman alleging that she was the victim of a rape to prove that she had fought off her attacker in order to show that she had not consented. If she could not show that she had sufficiently resisted, she was deemed to not have been raped. Her chastity was someone else’s property, either her father’s or her husband’s/future husband’s, so it was always understood that someone, other than her, had the right to her sexuality. The assailant had assumed that he had the right to use her sexually and was only a rapist if she acted in such a way that a reasonable man would have known that she did not belong to him. Her failure to communicate that fact, that she was the property of some other man, was a sign that she had in fact consented. Therefore the rape was not his moral failing in stealing another man’s property but her moral failing in not protecting that property from being stolen.

Culture Wars

We can see the effects of this ideology in how we treat rape victims today. Although we don’t necessarily require evidence of forceful resistance, it is considered helpful in prosecuting a rape case. Rape shield laws may have eliminated the most egregious examples of slut-shaming victims, but an innocent or even virginal victim is certainly what the prosecution could hope for if they were trying to design their most favorable case. One of the first questions that will be asked of the victim is “did you say no?” In other words “what did YOU do to prevent this from happening to you?” The burden is still often legally and almost always culturally on the victim to show that they did not consent.

There is an alternative approach that has been gaining traction on college campuses and elsewhere known as the concept of “affirmative consent.” Take a look at the video below, which elucidates the differences between the “no versus no” approach compared to affirmative consent, which is often described as “yes means yes.”

In this video, Susan Patton and Rush Limbaugh both represent examples of rape culture. The contrast between the views of Savannah Badlich, the advocate of affirmative consent, and Patton, who is against the idea, could not be starker. To Badlich, consent is an integral part of what makes sex, sex. If there isn’t consent then whatever happened to you, whether most people would have enjoyed it or indeed whether or not you orgasmed, was rape. It is your consent that is the foundation of a healthy sexual experience, not the types of physical actions involved. In contrast, Patton expressed the view that good sex is good sex and consent seems to not play a role in whether it was good sex, or even whether it should be defined as sex at all. The only thing that could indicate if something is an assault versus a sexual encounter is whatever physical evidence exists, because otherwise, the distinction is based only on the assertions of each individual. Again we are back to evidence of force.

What is “Rape Culture”?

Rape culture refers to a culture in which sexuality and violence are linked together and normalized. It perpetuates the idea that male sexuality is based on the use of violence against women to subdue them to take a sexual experience, as well as the idea that female sexuality is the effort to resist or invite male sexuality under certain circumstances. It overgeneralizes gender roles in sexuality, demeans men by promoting their only healthy sexuality as predatory, and also demeans women by considering them objects without any positive sexuality at all.

According to this school of thought, the “no means no” paradigm fits in perfectly with rape culture because it paints men as being predators who are constantly looking for a weak member of the herd to take advantage of sexually, while also teaching women that they need to be better than the rest of the herd at fending off attacks, by clearly saying no, to survive. If they can’t do that, because they were drinking or not wearing proper clothing, then the attack was their fault.

“Yes Means Yes”

Affirmative consent works differently. Instead of assuming that you can touch someone until they prove otherwise, an affirmative consent culture assumes that you may not touch someone until you are invited to do so. This would be a shocking idea to some who assume that gamesmanship and predation are the cornerstones of male sexuality and the perks of power, but it works out better for the majority of men and women, who would prefer and who should demand equality in sex.

This video gives a brief highlight of some of the issues that are brought up when affirmative consent is discussed and the difficulties that can still arise even with affirmative consent as a model.

Evaluating Criticism of Affirmative Consent

The arguments are important so let’s unpack some of the key ones in more detail. The first objection, expressed in both videos, is how exactly do you show consent? Whenever the affirmative consent approach comes up, one of the first arguments is that it is unenforceable because no one is going to stop sexual activity to get written consent, which is the only way to really prove that a person consented. We still end up in a “he said, she said” situation, which is exactly where we are now, or a world where the government is printing out sex contracts.

The idea that affirmative consent will by necessity lead to written contracts for sex is a logical fallacy that opponents to affirmative consent use to make the proposition seem ridiculous. Currently, we require the victim to prove non-consent. Often the victim is asked if they gave a verbal no or if they said they did not want the contact. The victim is never asked: did you put the fact that you didn’t want to be touched in writing and have your assailant read it? The idea that a written explanation of non-consent would be the only way we would take it seriously is absurd, so it would be equally absurd to assume that requiring proof of consent would necessitate written documentation. Advocates for affirmative consent don’t want sex contracts.

In addition, even under our current framework we accept a variety of pieces of evidence from the prosecution to show that the victim did not consent. A clear “no” is obviously the strongest kind of evidence, just as under an affirmative consent framework an enthusiastic verbal “yes” would be the best evidence, but that is just what the best evidence is. That is certainly not the only kind of evidence available. Courts already look at the entire context surrounding the incident to try to determine consent. The process would be virtually the same under an affirmative consent model. The only difference would be that the burden would be on the defendant to show that they believed they had obtained consent based on the context of the encounter instead of placing the burden on the victim to show that, although they didn’t say “no,” they had expressed non-verbally that they were unwilling to participate.

The shift in the burden of proof is sometimes cited as a reason not to adopt an affirmative consent model. Critics argue that this affects the presumption that the accused is innocent until proven guilty. Which is, rightly, a cornerstone of our judicial system. If this model did, in fact, change that presumption then it wouldn’t be an appropriate answer to this problem. But it does not.

Take another crime as an example. A woman’s car is stolen. The police issue a BOLO on the car, find it, and bring the suspect in and sit him down. They ask him “did you have permission to take that car?” and he replies “Yes, officer, she gave me the keys!”

He is still presumed innocent and, as far as this brief hypothetical tells us, hasn’t had his rights violated. It looks as though he is going to get a fair trial at this point. That trial may still devolve into another he said, she said situation. She may allege that she didn’t give him the keys but merely left them on the kitchen table. At that point, it will be up to the jury to decide who they believe, but that would have been the case in any event. He is presenting her giving the keys to him as one of the facts to show his innocence.

If a woman’s car is stolen we don’t question her about how many miles are on the odometer. We don’t ask if she wore a seatbelt the last time she drove it. We don’t care if she had been drinking because her alcohol consumption doesn’t negate the fact that she was a victim of a crime. We certainly wouldn’t force her to prove that she didn’t give the thief the keys.

That is how affirmative consent works. It wouldn’t require a written contract or even necessarily a verbal assertion. Context would always matter and the cases would still often become two competing stories about what the context meant. And it doesn’t mean that we are assuming that person is guilty before they have the chance to show that they did, in fact, get that consent. It just means that we are placing the burden of proving that consent was obtained on the party claiming that consent had been obtained.

Conclusion

There is no other category of crime where we ask the victim to show that they didn’t want to be the victim of that crime. A man who is stabbed in a bar fight, regardless of whether he was drunk or belligerent, isn’t asked to prove that he didn’t want a knife wound.

We need to change our cultural framework of rape and consent. When we are working under an affirmative consent framework what we are doing is changing the first question. Currently, our first question is for the victim: did you say no? Under an affirmative consent model our first question is for the suspect: did you get a yes?

Resources

Women Against Violence Against Women: What Is Rape Culture? 

Vice: A Brief And Depressing History of Rape Laws

Women’s Law Project: Rape and Sexual Assault In the Legal System

Find Law: Is The Tort of Wrongful Seduction Still Viable? 

International Models Project On Women’s Rights: Law Reform Efforts: Rape and Sexual Assault In The United States of America

Catholic Company: The Virgin Martyrs As Models of Purity

Chicago Tribune: To Combat Sexual Assault, Colleges Say ‘Yes’ To Affirmative Consent

Think Progress: What Affirmative Consent Actually Means

SUNY: Definition of Affirmative Consent 

Washington Post: Why We Made ‘Yes Means Yes’ California Law

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Rape Culture and the Concept of Affirmative Consent appeared first on Law Street.

For house hunters, there are many factors to consider when purchasing a new property. Natural light, open floor plans, and a big backyard may be on a potential buyer’s wish list. One thing that tends to top the list, however, is the quality of schools in the surrounding neighborhood. It’s commonly accepted by the real estate industry that higher quality schools translate to higher real estate values. The connection between school quality and property values is undeniable, with many studies confirming such a trend.

Fair housing advocates contend, however, that closely tying school rankings to property values has profound consequences. Many schools with lower rankings have a larger population of poor, minority students. Furthermore, the rise of online databases for house hunting, like Zillow, has allegedly increased illegal “steering” of people out of specific communities by prominently featuring school ratings online. Such advertisements and practices may be in violation of the Fair Housing Act.

Property Values and School Ratings

In a 2013 national study by realty brokerage company Redfin, people paid $50 more per square foot for homes in top-rated school districts. The study looked at 407,000 home sales and 11,000 elementary school districts in 57 metropolitan markets. Data was compiled from multiple listing services, as well as school characteristics and test scores from GreatSchools and Onboard Informatics.

“Markham suburbs aerial edit2” Courtesy of IDuke; License: (CC BY-SA 2.5)

Homes located near each other with the exact same square footage, number of bedrooms, and number of bathrooms can vary by tens of thousands to hundreds of thousands of dollars just because they are served by different schools. On the coast in California, for example, the price differential could be upwards of $300,000 to $500,000. Realtor.com recently completed a national study of homes within the boundaries of higher-rated public school districts versus homes in lower-ranked districts. The study uncovered that homes in the higher-ranked districts are 49 percent more expensive on average than the national median list price, and a whopping 77 percent more expensive than homes found within lower-ranked districts.

Real estate agents and industry advocates are quick to point out, however, that such research may not fully account for other factors that increase property values. Amenities such as a neighborhood swimming pool, “walkability,” and other physical improvements and facilities can drive home prices up, not just school ratings. It may be a critical consideration for families with children, but it is not the sole factor that increases property values.

“Steering” and Fair Housing Considerations

“Steering” is a process that influences a potential buyer’s choice of communities or neighborhoods on the basis of race, color, religion, gender, disability, familial status, or national origin. Not only is it unethical, but it limits the choices a potential buyer may have when purchasing a property. Steering was also made illegal under the Fair Housing Act.

The practice occurs when a real estate agent directs a prospective buyer interested in particular properties to equivalent homes in a specific neighborhood or community based on one of the protected characteristics. A real estate agent can “steer” clients by making positive or negative comments about a neighborhood, which can direct a buyer toward or away from a community. This can especially be an issue when it comes to prospective buyers’ questions about schools. Oftentimes characterizations such as “a school with low test scores” or “declining school district” may be used as coded language to talk about race. The advocacy group National Fair Housing Alliance found in a 2006 report that discussing school quality was becoming a proxy for discussing the racial or ethnic composition of a neighborhood.

The achievement gaps between white students and black and Hispanic students are massive and well-documented; the larger the socioeconomic disparity, the larger the achievement gap. Moreover, black and Hispanic students are far more likely to grow up in poorer households, but middle-class black and Hispanic students are more likely than poor white children to attend schools with a higher percentage of poor students. Less qualified teachers, large learning gaps, and lower standardized test scores all translate into one thing–a lower school rating.

The National Association of Realtors even notes that innocent conversations regarding school quality may create an FHA issue. Touting the accolades of a school in one district, while remaining silent on another school may be alluding to a racial distinction that steers prospective buyers out of one neighborhood and into a different one. Realtors must be extremely cautious in accommodating buyers’ preferences during the housing search without purposefully limiting their choices.

Rise of Online Databases and Redlining

In the past, fair housing laws covered statements and advertisements by real estate agencies and landlords. The rise and proliferation of the internet, however, has encouraged the growth of another form of house hunting: research in online databases. While there is a myriad of choices, some of the most popular ones are Zillow, Homes.com, and Redfin.

When a potential buyer is looking at a particular property on one of these sites, a link to a local school rating is prominently featured. With just a click of the mouse, the racial and ethnic composition of a school is unveiled, and the sites feature a color-coded system for the school rating: green, yellow, and red.

Such a system is reminiscent of “redlining,” a practice where maps showed communities with minorities in a red shade, denoting where financial investments were denied and systematically withheld from borrowers. After the Great Depression, the U.S. government wanted to evaluate the riskiness of mortgages with the help of local realtors and appraisers. Neighborhoods with minority residents were consistently marked red, considered high-risk for any mortgage lender. The practice was so extreme that a single black household in a middle-class neighborhood could make the entire area too risky for mortgage loans. Without access to better mortgages, black families looking to buy homes were forced to turn to predatory lenders. Redlining is now banned, but it has left behind racism and segregation that still shapes housing today in cities large and small. 

Most of the time the school ratings are based on one or very few factors, usually aggregate standardized test scores. Test scores are consistently disparate along socioeconomic lines, and it is well established that minority students are more likely than their white counterparts to live in poverty and go to school in poorer districts. Thus, such a one-dimensional view of a school’s performance, along with using a factor that is racially biased, seems to be a significant issue when displaying this information prominently on a house hunting website.

Modern Day “Steering?”

House hunting online has only become more popular in recent years. A joint study conducted by the National Association of Realtors and Google unveiled that 90 percent of home buyers searched online during their home buying process. Furthermore, the study found that 89 percent of new home shoppers used a mobile search engine at the onset and throughout their house hunting research. Currently, fair housing laws only affect those who sell housing, which are landlords and real estate agents. The laws do not appear to assign any sort of liability to websites, which are now being utilized across the country at a rapid rate.

Katie Curnutte, vice president of communications at Zillow, contends that these school ratings merely serve as a starting point for potential buyers to do further research and to connect with real estate agents. If the information provided is just neutral, it is difficult to argue that there is discriminatory intent. The color coding system in conjunction with readily accessible demographic data, however, could be a 21st-century form of “steering.” Given the popularity of online resources, resolving these issues to help combat housing segregation is of critical importance.

Conclusion

The rise of web platforms for home buying may be exacerbating a persistent issue in the fight for fair housing. Many advocates consider online databases with easily accessible school rating numbers to be part of a “legal gray area,” one with very little oversight. Moreover, it is apparent that housing and schools ratings are stuck in a cycle–encouraging housing patterns that maintain racial segregation, particularly through school budgets. The use of a color coding system by a website for local school districts–with green denoting “good” and red denoting “bad”–may be just as damaging as a casual conversation with a real estate agent steering people to live in certain communities.

It is no surprise that prospective homeowners have many concerns when it comes to purchasing a new property. It is one of the largest and most intimate investments a person can make. Home buyers with children in the public school system certainly have a right to be concerned about school quality. Striking a balance between honest information and activities that do not violate the FHA is imperative to ending housing discrimination and segregation. Moreover, drafting straightforward legislation to regulate house hunting websites and databases is the next step to ensuring the FHA remains applicable in the 21st century.

Resources

Primary

National Fair Housing Alliance: Unequal Opportunity–Perpetuating Housing Segregation in America

National Association of Realtors: The Digital House Hunt: Consumer and Market Trends in Real Estate

Additional

New York Times: Money, Race, and Success: How Your School District Compares

The Atlantic: The Concentration of Poverty in American Schools

NPR: Race, School Ratings and Real Estate: A ‘Legal Gray Area’

NPR: Interactive Redlining Map Zooms In On America’s History Of Discrimination

Realtor.com: Review of Housing Insights in Top Rated School Districts

National Association of Realtors: Steering, Schools, and Equal Professional Service

Washington Post: School Quality is Tied to Home Prices in New Study. But Other Factors May Affect Values

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

The post School Quality and Property Values: Perpetuating Housing Segregation? appeared first on Law Street.

With the United States locking up more people every year, prison reform is a topic of national concern. The impacts of mass incarceration on communities and families have become an epidemic, one with lasting consequences. Jails are overcrowded–filled to the brim with non-violent offenders–even as rates for more serious crimes have declined. The number of women in jail is growing at a faster rate than men, according to a new report published by the Vera Institute for Justice and the Safety and Justice Challenge. Entitled “Overlooked: Women and Jail in an Era of Reform,” the research is unique and necessary, as most of the existing information on the criminal justice system focuses specifically on men.

HISTORY OF WOMEN BEHIND BARS

Jails are confinement facilities, run by counties or municipalities that hold people accused of a crime while they await case resolution. Over the past forty years, the number of people behind bars in the U.S. has increased five-fold. On any given day in 1970, there were 157,000 people in jail; in 2014, that number rose to 745,000. Now there are more than 11 million admissions annually. Jails have been transformed from housing extremely dangerous individuals to keeping those too poor to post bail or too sick for assistance in the jail system. Life challenges such as unemployment, extreme poverty, physical and behavioral struggles, substance abuse, and mental health issues plague many women in jail.

Around 1970, there were only 8,000 women in the jail system. Now, with nearly 110,000 women behind bars, they are the fastest-growing incarcerated population in the U.S. Women are now held in jails in nearly every county in the country, in stark contrast to 1970 when roughly three-quarters of counties held not a single woman in jail. Women can find themselves involved with the criminal justice system because of poverty, mental and behavioral health issues, substance abuse, or a history of trauma.

The majority of women behind bars are there for non-violent crimes, which amounts to roughly 82 percent according to the last batch of national data from nearly a decade ago. A survey from Davidson County, Tennessee revealed that 77 percent of women in the jails were charged with a misdemeanor. Moreover, women are not necessarily committing new offenses. More recent research has found that women are more likely to be in jail for breaking a condition of supervision in the community, like failing a drug test or missing an appointment with a probation or parole officer.

GEOGRAPHIC INCREASES

Small counties, with less than 250,000 people, are seeing the largest increase in jailed women. In 1970, these same counties had just 1,700 incarcerated women compared to 51,600 by 2014. Sparsely populated counties see an incarceration rate of 140 per 100,000 women. Using 2014 data, the Vera Institute found that on a typical day large counties had an average of 271 inmates per 100,000 people versus 446 inmates in rural counties. 

This is in stark contrast to another trend, which shows a declining rate of incarcerated women in the nation’s largest counties. The trend is illustrated in counties like Stokes County, North Carolina, where women made up 32 percent of the jailed population in 2013, far beyond the national average. Data is still unclear as to why jail populations have increased so significantly in rural areas. Research notes that it could be the demographics of rural and suburban areas, which tend to house poorer populations.

“Handcuffs” Courtesy of [davitydave via Flickr]

PREVALENCE OF HEALTH ISSUES IN INCARCERATED WOMEN

Research has also noted that a number of women behind bars suffer from health issues, particularly mental illness. Thirty-two percent of women in U.S. jails have a serious mental illness, including major depression, bipolar disorder, and schizophrenia. According to the Bureau of Justice Statistics, 75 percent of women in jails stated they had symptoms of a mental health disorder in the past year. This high percentage of serious mental illnesses among incarcerated women is intimately tied to the high rates of victimization reported: sexual assault, intimate partner violence, and childhood sexual abuse. The numbers are startling. Based on the research among women in jail, 86 percent report experiencing sexual violence, 77 percent report partner violence, and 60 percent report caregiver violence.

The complexity of mental illness means many incarcerated women are unable to receive effective assistance. One in five women in U.S. jails has experienced a serious mental illness, post-traumatic stress disorder, and substance abuse disorder. This staggering number is met only with limited mental health care professionals and resources in the jail system. With a distinct lack of proper tools and support systems, many incarcerated women never have their severe mental health issues addressed.

WOMEN OF COLOR IN JAIL

For both men and women, people of color are disproportionately incarcerated. According to the most recent national data, roughly two-thirds of women currently behind bars are women of color. Forty-four percent were black, 15 percent were Hispanic, and five percent were of other racial and ethnic backgrounds, with only 36 percent of incarcerated women identifying as white. At a county level, the racial and ethnic disparities are even larger. In Cook County, Illinois, approximately 81 percent of women admitted in the jails were women of color.

Women of color are far more likely to experience financial instability and crisis, even before they enter a jail. Nearly half of all single black and Hispanic women have zero or negative net wealth, with black women five times more likely to live in poverty and receive public assistance. Staying in jail for even a short period of time can severely impact their basic survival needs, like suspension or even termination of public assistance.

INCARCERATION IMPACTS ON WOMEN

Women are heavily affected by jail, as the environment is often not designed for their specific needs and experiences. Women are assessed with the same assessment tools for men to determine where and how they are housed within facilities. Using a gender-neutral or male-focused tool ignores the research that shows women tend to pose less risk than men. As a result, the tools can classify women at a higher risk than they actually are, with over-classification barring them from educational, vocational, and rehabilitative programs.

Reproductive health needs are also a crucial issue for incarcerated women. Many jails fail to even meet basic hygiene needs for women. Muskegon County Jail was sued in 2014 by the ACLU of Michigan for failing to provide women menstrual hygiene products, toilet paper, and clean underwear. Other women in jails have reported being unable to receive hygiene products on a certain day because they are unavailable or only provided selectively. The health risks and emotional humiliation these policies create have caused some positive policy changes, like efforts to make free supplies readily available to incarcerated women.

WHAT DRIVES THIS GROWTH?

Shifts in police policy and enforcement over the decades contributed to a rising number of arrests of women. One particular policy departments embraced was “broken windows” policing; this policing theory focuses on low-level offenses like petty theft, loitering, and intoxication as a way to prevent more serious crimes. Moreover, in the 1980’s and 1990’s, policing priorities were expanded with the national “War on Drugs,” which escalated the enforcement and criminalization of drug offenses. These policies worked in conjunction to widen police power and entrap more citizens in the jail system.

The increase in these practices, however, had significant impacts on women specifically. Women are more likely than men to be involved in minor offenses like drug possession. Between 1980 and 2009, the arrest rate for women tripled while the arrest rate for men only doubled. Currently, women are arrested more frequently for “other-except-traffic” offenses, which includes activity such as criminal mischief and local ordinance violations, substance use, minor property crimes, and simple assault.

Another example of certain policies increasing the number of women in jail are prostitution diversion programs, which are present in many of the largest U.S. districts. These services may end up bringing more women into contact with the criminal justice system, particularly women of color and transgender women. Many jurisdictions use practices similar to drug stings to curb prostitution. Officers do targeted sweeps of specific neighborhoods and communities that may have high rates of prostitution. Police then may make arrests based on subjective characteristics or observations, such as walking or standing in a particular area or carrying condoms. This practice may be treating prostitution defendants as both victims and offenders, and creating an arrest record for women that can make life outside of the justice system and sex trade difficult to achieve.

CONCLUSION

Incarceration has become common practice in the U.S. for even the smallest, most non-violent of offenses. Considering the profound consequences staying in jail for even a few days can have, time in jail may be more effective when used only for dangerous offenders. Women, particularly women of color, have been a rising target of the criminal justice system for decades now. With current practices and rehabilitative efforts, it is clear that substantive change is needed.

Many questions remain about women in jail. The lack of current, comprehensive research on female incarceration impacts demonstrates a gap in addressing the rising number of jailed women. Reforming the U.S. jail system is within our grasp, if we take the reins and embrace positive, meaningful policy changes.

RESOURCES

Primary

Safety Justice and Challenge: Overlooked: Women and Jail in the Era of Reform

Bureau of Justice Statistics: Mental Health Problems of Prison and Jail Inmates

Additional

New York Times: Number of Women in Jail Has Grown Faster Than That of Men, Study Says

Washington Post: How Mass Incarceration is Spreading to Rural Counties and the Suburbs

NPR: Study: The Growing, Disproportionate Number Of Women Of Color in U.S. Jails

ACLU: Facts about the Over-Incarceration of Women in the United States

The Sentencing Project: Incarcerated Women and Girls

Center for Court Innovation: Prostitution Diversion Programs

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

The post Mass Incarceration: Why Are There So Many Women Behind Bars? appeared first on Law Street.

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Space law. It’s a concept that, to some of us, sounds ripped out of the movie “Xenon, Girl of the 21st Century,” “Interstellar,” or possibly “Gravity.” But I want you to think back to the last time you used your smartphone as a GPS. How about the last time you flew on a plane? Or the last time you checked the weather for your area. Or the last time you streamed an episode of your favorite Netflix original show. All of those activities are in some way governed by space law, and how it intersects with the distinct but related fields of cyber and telecommunications law.

But what is space law, why does it matter, and how does it affect the education of law school students right now? Read on for an exploration of space law, the ways it affects us each day, and a look at the University of Nebraska-Lincoln College of Law’s innovative space, cyber, and telecommunications law program.

So, What is Space Law?

At its most basic, space law is the set of international and national laws that regulate what governments and private companies do in space. It also encompasses facets of international law and business law.

The need for “space law” arose when the Soviet Union launched the first satellite in late 1957 and the U.S. completed its own satellite launch months later. After much negotiation, the Outer Space Treaty was concluded in 1967, laying out the basic tenants of space law that became the groundwork for the rest of the field. These principles fit a few themes–including freedom of exploration and use of space, that space is to be used for peaceful purposes, and (in a clear indication that these principles were designated during the Cold War) that “states shall not place nuclear weapons or other weapons of mass destruction in orbit or on celestial bodies or station them in outer space in any other manner.” Check out the rest of the principles here.

Things have obviously changed since 1967, so these ideas have been expanded upon and undergone new developments. The United Nations’ Committee on the Peaceful Uses of Outer Space (COPUOUS), which was a driving force behind the original Outer Space Treaty, has seen the development of four other treaties as well as developed five additional sets of principles.

But the creation of major new international rules have stalled the past several decades, while on the national level rule-making has accelerated. The U.S. enacted the first commercial space legislation in 1984 and continues to have the most detailed and advanced framework, including addressing topics such as commercial human space flight, liability for any third-party injuries, and asteroid mining. Many other nations have enacted legislation and look toward the U.S. framework as a model.

Why does any of this matter? After all–most of us aren’t launching space ships or trying to become astronauts. But these principles have allowed us to send up the satellites that we use for everything from satellite TV, navigation, banking, agriculture, and of course, military information. That’s where other aspects of law, like cyber law and telecommunications law come in.

Cyber Law 

Put simply, cyber law governs the use of computers and the internet. Current hot topics in cyber law include hacking, “the right to be forgotten,” and encryption. Cybercrime is also particularly pressing, whether the targets are private citizens or government entities.

Telecommunications Law 

Telecommunications law deals with broadcasting and electronic communication. In the United States, telecommunications laws and polices affect phone service, cable and TV programming, and wireless spectrum. Telecommunication law has seen significant evolution now that the internet has become so ubiquitous and will continue to change moving forward.

Why is it important to study all three?

Many of the issues covered by space, cyber, and telecommunications law see a significant amount of overlap. In fact, we couldn’t even talk about certain topics in cyber regulations and telecommunications–we wouldn’t even have access to much of this technology–without our exploration and use of space. According to the University of Nebraska Lincoln College of Law, the only school in the United States to offer a program that specifically teaches all three fields: “These three areas are intrinsically linked by the technology they require and the laws and policies that impact them.”

What’s Next in Space Law?

So, it’s clear space law, and the related fields of cyber and telecommunications law, affect each of our daily lives, in really commonplace ways. But a lot of the topics we’ve seen in the news lately also have the potential to be affected by these kinds of regulations.

Net Neutrality

Net neutrality–whether or not internet service providers should treat all content and sites the same–has increasingly become a hot button issue in recent years. Almost every 2016 candidate, from Hillary Clinton to Donald Trump has at least mentioned where they stand on the topic.

Net neutrality is based on the idea of the internet as a commodity–some companies have access to it and they provide it to paying consumers. For now, it’s been a mostly earthbound commodity. While there have been dalliances with satellite internet, none have ended up particularly successful. But that’s probably going to change soon–last year companies like SpaceX and OneWeb both announced plans to create satellites that could deliver broadband. This transforms net neutrality from a grounded, national concept to an international dilemma. As Slate’s Nicholas Nardini put it:

A space-borne Internet could skirt these threats. It might also skirt law enforcement and surveillance: While tech companies today often dodge warrants by storing data in foreign countries, the lawless sky offers an even surer refuge. And though net neutrality is the law for now in Europe and the United States, it doesn’t really exist elsewhere. Any network offering satellite Internet to the developing world is likely to sacrifice neutrality for efficiency.

Commercial Space Flight 

Commercial space flight may have sounded like a science fiction fantasy just a few years ago, but we’re inching ever closer to it becoming a reality. Bigelow Aerospace is trying to launch a few giant space habitats for some commercial use; it aims to  launch the first in 2020. It could be used by both “space tourists” as well as for scientific research. Virgin Galactic is working on commercial human space flight, planning sub-orbital flights in the next year or so, and SpaceX and other companies contract on cargo carriage to the International Space Station and, in the near future, astronaut travel.

But if private citizens are going to start going into space, laws that had for so long mostly focused on governmental and military operations are going to need to be reexamined. Legal issues currently addressed in US legislation like licensing for private flights, who is liable in the case of injury, informed consent, and so many other questions are going to have to be dealt with in other national legislation as “space tourism” becomes more than just a fun idea globally.

So, how do I become a Space Lawyer?

The University of Nebraska-Lincoln College of Law has the only program in the United States that combines the fields of space law, cyber law, and telecommunications law. Since 2007, Nebraska has offered a Space, Cyber, and Telecommunications Law certificate for J.D. students. J.D. students can specialize in space, cyber and/or telecommunications law during their studies by taking 15 credit hours of courses in one or more of these areas in consultation with faculty in the area. Nebraska Law for the past decade has also offered an LL.M. in these areas of law, and more recently began offering a doctorate (J.S.D.) in space law.

Nebraska provides opportunities for students interested in space law to get hands on experience, through conferences in both Lincoln and Washington D.C. and participation in events such as the Lochs Moot Court competition. According to Professor Matthew Schaefer, the Director of Space, Cyber, and Telecom Law Program, Nebraska also has a notable list of alumni, who work at places like the U.S. State Department, relevant think tanks, SpaceX, McKinsey Consulting, and U.S. Cyber Command, to provide connections and inspiration to current and future students.

Space law isn’t just for people who are going to work specifically with commercial companies like SpaceX or government agencies. The interplay between space law, cyber law, and telecommunications affects business transactions and international law on the ground too. And firms increasingly have to rely on lawyers who have knowledge of cyber law, given that the internet is now wrapped up in essentially everything we do. As Professor Schaefer put it:

Even if you’re not going to go off and work for a space company, again, space law is a really good case study in international business transactions and global business, also an excellent case study in international law as well.

So, are you looking to pinpoint the future of law? Reaching for the stars doesn’t sound too crazy anymore.

Click here to request more info. 

Resources

Primary

United Nations Office for Outer Space Affairs: Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies

FCC: Telecommunications Act of 1996

Additional

Nebraska Law: Space, Cyber and Telecommunications Areas of Study

Space: Who Owns the Moon? | Space Law & Outer Space Treaties

American Bar Association: Space Law 101: An Introduction to Space Law 

 Bloomberg: The ‘Right to Be Forgotten’ and Other Cyberlaw Cases Go to Court

Law Street Media: FCC’s Spectrum Auction and Why it Matters 

Slate: The Final Frontier of Net Neutrality

University of Nebraska College of Law

Students at the University of Nebraska College of Law study in a friendly, collaborative environment with internationally recognized professors. Reasonable tuition costs, and excellent bar passage and employment rates are part of the reason that Nebraska Law is consistently named a best value law school. The College of Law is part of the University of Nebraska–Lincoln, a major research university and member of the Big Ten Conference. It is located in Lincoln, an exciting college town, the state capital, and a city of nearly 300,000 people. Learn more at law.unl.edu. The University of Nebraska College of Law is a partner of Law Street Creative. The opinions expressed in this author’s articles do not necessarily reflect the views of Law Street.

The post Looking to Launch a Career in Space Law? Nebraska Law is Here to Help appeared first on Law Street.

With homicide rates and gun violence on the rise, some cities are trying controversial programs in an attempt to address the root causes of crime. This spring, Washington, D.C. voted to approve a program that would provide stipends to at-risk people to help ensure that they don’t commit violent crimes. Critics characterize the program as rewarding criminals for refraining from doing what they shouldn’t be doing in the first place. They say the program is antithetical to our values as a country of laws and lawbreakers should be penalized when they do commit crimes, not rewarded when they don’t. But these programs are actually much more involved than a simple payment to stay on the straight and narrow.

Blessed Are The Peacemakers 

The D.C. program that was approved this spring, which will likely never come to pass because it won’t be funded, is based on a similar program in Richmond, California. The program would have cost $4.9 million over four years, $460,000 of which would have been in stipend payments. The entire program was taxpayer funded, unlike in Richmond where the stipends were funded by private foundations. In the video below, advocates for the proposal in D.C. give a brief explanation of how they would characterize the program.

Proponents argue that it isn’t a welfare program or a bribe. Rather it is a way to reward people who are at-risk to continue criminal activity (particularly violent criminal activity) for choosing to engage in socially positive activities instead. For example, one woman in the video gets a stipend for pursuing training for a design career. That activity might not be available to her without the stipend and by opening her up to that opportunity the stipend helps ensure her success. That, in turn, makes the community safer.

It’s unclear how much the program in Richmond, called the Operation Peacemaker Fellowship, is actually responsible for the city’s decrease in crime. But there has been a sharp reduction in violent crime since its implementation and officials note that four out of five participants in the program are no longer engaged in gun crimes. The Richmond program is more involved than merely identifying people who are likely to commit a crime and giving them an economic incentive not to. It involves continuing mentorship and requires that fellows meet goals they have set for themselves as a pre-condition for receiving the stipend. One could characterize these as payments for getting a GED or some other accomplishment as easily as they are labeled payments to not commit crimes.

This video by PBS, which is long but worth viewing to understand the program, goes into detail about what exactly Richmond did and how the stipends actually work.

As the video explains, the stipends are for a limited 9-month period, paid once a month, and are directly tied to the accomplishment of certain goals in that person’s “life plan.” While the program requires participants to stay away from gun violence, payments are conditional on a range of factors beyond simply avoiding crime. The introduction of positive activities and new positive behaviors is required.

Arguments Against

Financial incentives can be powerful tools for changing habits. The trick to using a financial incentive is to make sure that you are incentivizing what you want, and not something that could be counterproductive. For example, perversely incentivizing the breeding of rats (there’s more on that in an earlier post). With this program, there are two potentially negative incentives that we might worry about.

The first one is a classic perverse incentive when offering aid to people in particularly bad circumstances. We do not want such a program to encourage people to commit crimes, or a series of crimes, in order to be eligible to participate. If the amount of money being offered is high enough previously law-abiding citizens (or at least citizens who weren’t committing gun violence) might decide to become eligible for the program.

This fear is probably farfetched. To be eligible for the program you need to be a likely offender, so either someone likely to commit a crime or be the victim of one. Often that means having a criminal record or living in an area where there is heavy violence, or both. The highest potential payment is $9,000, which requires 6 months in the program before you’re eligible and then the payments are broken up over nine months. So assuming you get the full $9,000, it would take you 15 months and a lot of work to earn it. There are easier ways to earn money.

The second argument against the program is that by providing a financial incentive we are diminishing the “intrinsic motivation” of the fellows in the program to not commit crime. Instead of wanting to not break the law for its own sake, the motivation is now financial, which will stop when the payments stop.

This argument is a misunderstanding of how the program actually works. If the program were actually just a check made out to the would-be criminal in exchange for showing they hadn’t committed a crime, then yes, the payments would be the primary motivation and when they stopped so would the motivation. But that isn’t how the program is designed to work. The program is designed to make payments for new starting new behaviors, not for stopping old behaviors. For example, a goal in someone’s life plan might be getting a GED. That month’s payment would be made only if the GED was acquired. Not engaging in gun violence keeps you in the program but that isn’t enough to get the stipend. If that happens in the last month of your eligibility, you aren’t going to give back the GED or undo some other milestone. It is already accomplished.

Similarly, the new behaviors that are being incentivized are also behaviors that, in and of themselves, make someone less likely to commit crimes. Take the GED example once again. Increased education will lead to increased earning potential over the long term, and therefore, is likely to reduce crime. So even when stipend payments stop, the effects of achieving the required goals are ongoing.

A third argument against this program is that it is contrary to our values to reward people for not committing crimes. Again this is based on a mischaracterization of what the financial rewards are actually for. The stipend is not necessarily paid to everyone in the program who is nonviolent. Rather that is the baseline requirement for entry into the program. The financial rewards come when milestones are met or goals reached, which is a concept that is consistent with our value of rewarding hard work. It’s much more like giving an allowance to your child for cleaning their room than it is a bribe for not throwing a tantrum.

The main distinction between the D.C. program, which will probably never be implemented, and the Richmond program is that the administrative costs were taxpayer-funded in Richmond, but not the stipends. The D.C. program planned to use taxpayer money for both. Obviously, it is very easy to support a program that gives away other people’s money, but when that money is coming from your taxes, support might be more grudging. I’ve never committed any crimes and no one is, as far as I know, offering me a stipend for that behavior.

But I’m not at-risk either. Offering me a stipend would not be a good investment because I am unlikely to commit a crime in the first place. However for individuals who are likely to cause harm to society (which we can more-or-less measure in economic terms) and cost taxpayers to then incarcerate, a program like this might well be cheaper. And that isn’t even factoring in the human value of reducing death and imprisonment while increasing opportunities.

Conclusion

The headline “Paying Criminals to Not Commit Crimes” is fairly catchy but it is not an accurate description of the program proposed in D.C. or the original program in Richmond. When you introduce a financial incentive to a problem you always run the risk that you’ll encourage something you did not intend to. But just because the incentive is financial does not automatically make it bad. Greed can, in fact, be good.

Resources

Brookings Institute: Should We Pay People Not to Commit Crimes? 

Law Street Media: Perverse Incentives: Are Needle Exchanges Good Policy

Washington Post: Paying Criminals To Stay Out of Trouble: D.C. Could Be The Next City to Try Experiment

NBC Washington: Crime Still Won’t Pay As D.C. Crime Stipend Falls Dead

Time.com: Should Cities Pay Criminals To Not Commit Crimes? 

NPR: To Reduce Gun Violence, Potential Offenders Offered Support and Cash

NYTimes: D.C. Crime Bill Would Pay People To Avoid Committing Crimes

Associated Press: DC Bill Would Pay People Stipends Not To Commit Crime

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Should we Provide Stipends for People to Not Commit Crimes? appeared first on Law Street.

According to a long line of Supreme Court cases, death is different. Because it is the ultimate penalty, every aspect of a trial and sentencing are subjected to the highest levels of scrutiny when the death penalty is involved. As a society, we fall short of the high standard of care that we hope to achieve in these cases but we instinctively feel that cases involving execution are special.

Much attention is paid to the process of trying, convicting, and sentencing for capital offenses, but recently, attention has also been paid to the execution process itself. In May, Pfizer, one of the largest pharmaceutical companies in the United States, announced that it would be taking steps to block states from purchasing its drugs for use in executions. Some states feel that only lethal injection is an appropriately humane method. Some allow the use of the electric chair as well. In Utah, the use of a firing squad is once again an option. For states that do not allow methods other than lethal injection, these restrictions are creating a shortage of the cocktail of drugs involved, impacting the state’s ability to execute those they have sentenced.

Blocking states’ ability to purchase these drugs limits their ability to execute those convicted of capital crimes by that method but it merely delays these executions until other methods can be approved or the drugs are acquired some other way. It isn’t an effective method for changing capital punishment as a policy. But companies in the United States, and all over the world, have used their power to refuse to sell these drugs to protest the death penalty with mixed consequences.

The Process

Lethal injection as a method of execution is surprisingly complicated. One would think that the process of killing a prisoner would be simple, but in most states that is not the case. Executions typically involve a cocktail of three different drugs. First a sedative, typically some kind of barbiturate, to render the condemned unconscious. Then a paralytic, which affects one’s ability to breathe. Finally, potassium chloride to stop the heart.

This Forbes article goes into detail regarding the specific drugs and their effects on the human body, but essentially, the potential to cause suffering through misapplication of this method is very high. In the video below from CNN, Dr. Sanjay Gupta also gives a brief explanation of the process here, specifically in regard to the “botched” execution of Clayton Lockett.

As explained in the video, the execution process failed to go as planned even though Oklahoma was following a protocol that had been approved and is not considered to be inhumane. In fact, the Supreme Court recently upheld the protocol–specifically the use of the drug midazolam as the sedative–finding that it is not in violation of the 8th Amendment prohibition against cruel and unusual punishment. Oklahoma increased the amount of that drug used in its executions since the Lockett execution, but the essential three-step drug protocol is the same.

This is the central problem that Pfizer is trying to address with its sales ban. Like other companies and the European Union, which also bans the sale of drugs used in executions to state facilities, Pfizer does not want its products used to carry out executions. These products, Pfizer argues, were meant to promote health for its clients and using them in an execution is antithetical to its purpose as a company.

But these efforts, although they may assuage the consciences of the companies and nations that employ them, are not without cost. They make it just difficult enough for states to acquire these drugs that the process becomes less transparent and more dangerous, but not difficult enough to stop executions altogether. States have come up with various methods to circumvent these restrictions. For example, reviving the firing squad as an option in Utah is in part a response to the difficulty getting lethal injection drugs.

States also now turn to “compounding pharmacies” to get the necessary drug cocktail. These companies purchase the drugs by themselves, since the state cannot buy them due to company restrictions, and combine them for use in an execution. They aren’t regulated to the same degree as a traditional pharmaceutical company, which means figuring out how effective the drugs will be in making execution as humane as possible is more difficult. States also may try to use straw men purchasers in order to get the needed drugs.

In order to facilitate these executions by lethal injection, as opposed to another method such as the electric chair, Virginia and a few other states have proposed allowing pharmacists who assist the state to remain secret. This video provides some of the arguments against this proposal and a look at some of the legal issues surrounding it.

Allowing pharmaceutical companies who assist the state in executions to remain secret or to hide the sources of the drugs creates a host of concerns. Firstly, it prevents lawyers from getting the necessary information to challenge an execution that they feel was cruel and unusual. They won’t be able to get evidence about the protocol used in that particular execution, making it harder to stop a protocol from being repeated the future. Secondly, it prevents lawyers from finding out where the drugs are coming from before the execution as well, so they would be unable to challenge the use of drugs from a company that had a history of errors in other medical contexts.

It also eliminates the fear of being sued or criminally charged for mistakes made in the preparations of the drugs, which is one of the most powerful incentives for pharmaceutical companies to behave properly. In the absence of adequate regulation, the power to be economically damaged by a lawsuit is one of the ways that consumers can ensure product safety. Getting rid of that tool for death penalty drugs could allow the negligent behavior to go unchecked. While there are lobbying groups who oppose the death penalty that put pressure on pharmaceutical companies, there is not the same widespread social concern for this issue that would give companies an incentive to be responsible, for fear of a boycott, as there would be for a product like aspirin. The heinous nature of the crimes that these prisoners have committed means that many people aren’t concerned about whether they are executed humanely. Even in cases where the execution was extremely painful, so-called “botched” executions, it isn’t a top priority for most to change how we execute criminals.

Humane For Whom? 

Moves by pharmaceutical companies to prevent their drugs from being used in executions has sparked an interesting debate. Most would argue that they should have the right to restrict these sales, but in doing so they are actually increasing the likelihood that states will botch executions. Several executions have been delayed but a state is more likely to turn to a compounding pharmacy or get the drugs from another state than it is to revert to an alternate method of execution. So far only Utah and Oklahoma have gone outside the box–with firing squad and gas chamber respectively–that our interest in “humane” executions has placed us in. We tend to think of lethal injection as the best method because it is the most medically supervised and modern practice used. But 7 percent of executions by lethal injections are “botched,” meaning 7 percent of the time someone made a mistake that could have left the prisoner sensible to pain or prolonged their death for many minutes or hours. Although it is less often used, the percentage of botched firing squad executions is zero.

Despite its cheapness and efficiency as a method of execution, the guillotine has not seen a resurgence of popularity either, although it was originally invented as a more humane alternative to hanging as a means of execution. If the condemned were acting rationally they would choose the guillotine rather than lethal injection as their method of choice because, like a firing squad, a prolonged execution is less likely. From that viewpoint, it is a more humane method. Yet we continue to employ lethal injection because it is considered a more humane method by the observers.

There is a case to be made for pharmaceutical companies to work together with states. If these companies want to improve humane executions, while keeping the death penalty intact, working with states rather than against them might be the best option. Pharmaceutical companies have access to the best research available and thousands of drugs that are used in life-saving therapies that might be helpful in executions as well. When companies decide to restrict the use of their drugs for executions, advocacy groups generally applaud them, but they may want to work together to improve the current system first. If lethal injection is really the best method, then these companies and advocacy groups might be able to better serve the people they wish to protect by advocating for better lethal injections, even if they are continuing to advocate for an outright ban at the same time.

Conclusion 

Pfizer’s announcement has been ridiculed by many as simply a PR move to appeal to a constituency that opposes the death penalty. Especially since those who support the death penalty don’t typically care enough about it to protest a company that opposes it. It is impossible to know if Pfizer’s concerns are genuine but they aren’t alone in their attempts to ban the use of these medications in a practice they find unethical. Companies commonly take moral stands on issues and either grant or refuse their support based on those values. But Pfizer and companies like it may be doing more harm to their cause than good. Rather than forcing states to make an end-run around their restrictions, thereby making executions less transparent and less humane, pharmaceutical companies should work with states to ensure that their products are being used as humanely as possible.

Resources 

NPR: Utah Brings Back Firing Squad Executions

Death Penalty Info: State Lethal Injection

Forbes: The Pharmacology and Toxicology of Execution by Lethal Injection

CNN: Clayton Lockett Oklahoma Execution

NPR: Supreme Court Says Oklahoma’s Use of Midazolam in Lethal Injection Is Legal

Wall Street Journal: Pfizer Tightens Controls to Block Use of Its Drugs In Executions

New York Times: Pfizer Blocks the Use of Its Drugs in Executions

Death Penalty Info: Some Examples Post-Furman Botched Executions 

Atlantic.com: The Case For Bringing Back the Guillotine

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Death Is Different: Restricting the Sale of Lethal Injection Drugs appeared first on Law Street.

Police in the state of Oklahoma have recently brought the practice of civil asset forfeiture into the 21st century. Previously, if the police pulled you over, they could only seize assets that you physically had with you. But now, thanks to electronic scanners that can remove the funds from your pre-paid gift cards and your debit cards, they can seize even your electronic assets.

This change has led many to take a closer look at the law enforcement tool known as civil asset forfeiture. Civil asset forfeiture is in some ways a bizarre inversion of how we normally view crime and property. Most people think of asset forfeiture as something that occurs during a criminal proceeding. When the police charge the defendant with a crime or execute a search warrant, they can confiscate assets that they believe are profits from, or being used for, criminal activity. That is known as criminal asset forfeiture. But due to an expansion of the practice of civil asset forfeiture, the police can confiscate your assets without proving you have committed a crime or even charging you with a crime.

Flipped: How Civil Asset Forfeiture Works 

Many civil asset forfeiture cases are referred to as “highway interdiction” cases, so using that concept as an example would be helpful to understand how the process works. First, the police pull you over. Sometimes it is for a traffic violation that you have committed. In other instances, typically where civil asset forfeiture is being abused, these stops are part of a sweep of checkpoint stops. Once you are pulled over, a police officer questions you and may use a K-9 Unit to search for drugs or cash. Obviously, if they find drugs you’re getting arrested. However even if all they find is cash and they don’t arrest you (or even ticket you) they can confiscate the money.

Originally when the law that allows this–the Comprehensive Crime Control Act of 1984–was enacted, it was part of an increase in power given to law enforcement to fight the War On Drugs. Drug trafficking and other criminal activities that this law would help fight such as organized crime, deal with large amounts of cash; allowing the police to seize that cash can cripple criminal organizations. It also provides much needed budgetary windfalls to state, local and federal law enforcement agents who split the proceeds. This process, known as equitable sharing, gives law enforcement officials an incentive to confiscate assets.

They don’t, at this point in the process, have to demonstrate that the money they took had anything to do with an illegal activity. And because it is a civil, not a criminal, matter, the burden of proof that the money is innocent falls on the owner, not on the police, if the case gets to trial.

Many of these cases go uncontested because the owners of the seized assets feel it would take more time, effort, and expense than the assets are worth to pursue the matter. Since they would have to hire attorneys to help them, they are probably right. According to the Washington Post, only one-sixth of the seizures were challenged in court. However, of the cases that were challenged, 41 percent resulted in the government returning the money.

And it is a lot of money. According to the Washington Post investigation, it totals over $2.5 billion in total since September 2001. Of that, $1.7 billion was split between state and local authorities and $800 million between the Department of Homeland Security and other federal agencies In many cases, these seizures aren’t windfalls (although John Oliver did reveal that in some cases they represent a very literal slush fund) but are actually planned into the budget. This means that when creating their budgets, police departments are planning on seizing a certain percentage of the money they need. This gives the police even more of an incentive to seize assets–particularly from out of state motorists who are probably less likely to contest the seizure or create negative political consequences.

In the video below, the Institute for Justice, a libertarian public-interest law firm, explains some of the concerns with civil asset forfeiture and just how much money is involved. It also highlights the difference between civil and criminal forfeiture.

The proportion of forfeitures that are civil versus criminal is an important point that needs to be addressed. As explained, criminal forfeiture requires that the government prove that you actually committed a crime. Most would agree that we don’t want criminals to be able to keep the profits from their illegal activity and, once those assets are legally seized, they should be used for some constructive social purpose. But only 13 percent of forfeitures were criminal. That means that for every 100 people who had their assets seized, 87 of them were never convicted of a crime but their assets were taken anyway.

The video also more thoroughly explains how the process of equitable sharing allows law enforcement in states that have curtailed the practice of civil asset forfeiture to do an end-run around those restrictions. They turn over the assets that they seized to the federal government, which then takes 20 percent, and then returns the remaining 80 percent back to the state or local police department.

What Law Enforcement Has to Say

Some, of course, argue that civil asset forfeiture is a necessary tool for law enforcement officials. It gives them flexibility and power to seize money that they believe is being used to further criminal activity. Additionally, these law enforcement agencies need the money to fund their operating budgets. If we eliminated this as a source of revenue for agencies we would need to either cut funding, which could be dangerous as well as politically unpopular, or find the money somewhere else, which could also be difficult and politically unpopular. There are mechanisms to get assets back that have been wrongfully seized, so the real problem isn’t necessarily civil asset forfeiture itself but the fact that innocent parties don’t avail themselves of the process to recover their money.

Other police officers would argue differently. In this video, two former law enforcement officers who are involved in LEAP, Law Enforcement Against Prohibition, argue that civil asset forfeiture creates a system that encourages corruption and theft by the government.

The argument that these agencies need the funds to operate is flipped here. It is precisely because these agencies need the money to operate, that allowing civil asset forfeiture is so dangerous. Seizures are incentivized for these agencies. And since they don’t require proof of wrongdoing, and the likelihood of being contested is so small, there is no effective counter-incentive to keep the police from unfairly seizing assets. In fact, these agencies sometimes want to get better at making these stops and seizures. The companies BlackAsphalt and the 4:20 Group train law enforcement to make successful “highway interdiction” stops.

Possible Solutions For Civil Asset Forfeiture

The question then becomes how do we give law enforcement the tools that they need to safely and effectively do their jobs while at the same time protecting citizens from government overreach? One possible solution is to completely eliminate civil asset forfeiture and only allow the criminal variety. This is an attractive option because the incentives for the police to seize assets wouldn’t be the main incentive at work. In civil asset forfeiture, they are able to take assets without proving, or even charging, someone with a crime so their only incentive is to seize assets. In contrast, criminal asset forfeiture requires a criminal conviction, so the first step in the process requires police to legally charge and convict an actual criminal. Their incentive, first and foremost, is to fight crime. The assets they get to keep, if successful, are a bonus.

Another potential solution is to decouple the financial incentive from civil asset forfeiture by funneling any assets seized to something totally separate from the police department or even law enforcement. For example, instead of the money going to the police department (or to the federal government and the local police through equitable sharing) the money could be sent to the local school district. This would allow the practice to continue but would help to reduce the direct payoff that police officers have when they seize assets, which in turn could reduce the number of stops they make. Local governments would have to ensure that the school budget money wasn’t then just reduced and given to the police to decrease the incentive to take assets. But if carefully structured, this could allow civil asset forfeiture to exist in the rare instances where it may be legitimate, but lessen the incentive to prevent abuse.

DUE PROCESS 

A third option, and one that the House Judiciary Committee believes will cure many of these ills, is the Deterring Undue Enforcement by Protecting Rights of Citizens From Excessive Searches and Seizures Act of 2016, or DUE PROCESS Act. It is supported by a variety of organizations, including the ACLU, and would greatly reform the civil asset forfeiture process.

Most of the proposed reforms focus not on the initial seizure of the assets but on the court process to reclaim them when they have been seized. The DUE PROCESS Act would alter the burden of proof in these cases, placing it with the government instead of the claimant. It would create a right to counsel and allow a claimant to recover attorney’s fees if successful. Since cost is one of the most significant obstacles to people who want to contest the forfeiture of their assets, this would increase the costs associated with wrongfully taking assets. It would also require that there be a proven connection between the property and the offense committed. While it wouldn’t fully eliminating civil asset forfeiture (you still wouldn’t need a criminal conviction to have your property taken) it would make it much more like criminal asset forfeiture in our legal system. All of these reforms would help to reduce police incentives and ability to seize assets while also encouraging people who have a valid case to pursue it in court.

Conclusion

We can and should give law enforcement a variety of ways to fight crime. Civil asset forfeiture is a powerful tool that law enforcement naturally has used to their benefit. But they have not only used it against convicted criminals, who make up a scant 13 percent of those who had their assets seized by the police, but also against ordinary citizens. Some of whom may have committed a civil offense, and many of whom were doing nothing more than driving with cash.

Reforms to civil asset forfeiture, either to eliminate it all together or to alter the balance of power in the relationship between citizens and the police, are necessary to ensure that this tool is no longer abused. But until it is reformed, when driving in Oklahoma you may want to use Bitcoin. 

Resources

The Register: Oooooklahoma! Where The Cops Can Stop And Empty Your Bank Cards–On Just a Hunch

Institute For Justice: Policing For Profit

The Future of Freedom Foundation: How Police Confiscation is Destroying America

The Heritage Foundation:Civil Asset Forfeiture: 7 Things You Should Know

The Washington Post: Stop and Seize : Aggressive Police Take Hundreds Of Millions Of Dollars From Motorists Not Charged With Crimes

ACLU: Asset Forfeiture Abuse

Generation Opportunity: Civil Asset Forfeiture: The Time For Reform Is Now

Bitcoin.com: New Civil Asset Forfeiture Tool Makes Bitcoin Even More Powerful

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Reverse Robin Hood: The Benefits and Hazards of Civil Asset Forfeiture appeared first on Law Street.

As of 2015, there were 2,800 drug courts in the United States and they were working with 120,000 defendants per year. The idea behind these courts is to use the criminal justice system to compel addicts to rehabilitate themselves. The ultimate goal is to reduce recidivism for drug use and the other crimes that often accompany drug addiction. In order to do this, drug courts use both a carrot and a stick approach with addicts. Courts promise to reduce or eliminate jail time in exchange for the successful completion of a drug treatment program–hopefully saving money for taxpayers along the way.

The first drug court program was started in 1989 and represented a very different approach to dealing with drug crimes. A traditional criminal justice approach is for the court to only analyze if the state has proved that the defendant committed the crime and then to sentence him or her. Drug courts are an attempt to cure the underlying cause of these crimes in the first place, based on a better understanding of the nature of addiction. Drugs were increasingly being viewed as a public health crisis and not an individual moral failing. Traditional criminal justice approaches can do nothing to combat that kind of problem and are not designed to take those factors into consideration.

Drug courts were therefore built on the idea that the court is part of a team–including law enforcement, prosecutors, social workers, and the defendant–that is engaged in helping the defendant to stop using drugs and not commit future crimes. The judge in a drug court also takes on an active role in the defendant’s treatment. This engagement by the court is actually a key factor in the lives of defendants where drug courts have proven successful. At the very least, drug courts represent a judicial system that is trying to adapt to our evolving knowledge about drug addiction and the best ways to combat it.

But drug courts may not be as enlightened a solution to the problem of drug addiction as they seem at first blush. There are serious concerns about the scope of drug courts in terms of who can participate, the role of judges, and the rights that defendants give up in order to be a part of this process. There are also questions about the efficacy of these programs and whether the same goals could be accomplished through different means.

How Do Drug Courts Work?

Drug courts actually come in two main varieties, which is a nuance that is sometimes lost in the debate–deferred prosecution, and post-adjudication. In the deferred prosecution model (sometimes referred to as a “diversion” model), defendants are sent to a rehabilitative program or are given a set of guidelines before they are prosecuted. If they successfully complete their program the charges are dropped. In contrast, the post-adjudication model requires that the defendants plead guilty to the charges they face and are then sent to a drug program. If they complete the program successfully the sentence will be waived and the record potentially expunged.

This may not seem like an important difference if, after a drug program is completed, the defendant avoids jail time in both cases. But it is a very important difference for defendants who don’t successfully complete their programs. This is because in a deferred prosecution model the defendant goes back to the beginning of the process and still retains their right to plea bargain or plead not guilty and receive a jury trial. For defendants with a weak case against them or sympathetic facts, that can be significant. The defendant in a post-adjudication model drug court goes right to the sentencing phase of their trial–because in order to participate in the program a defendant must first plead guilty.

In this short video, Mae Quinn, the co-director of the Civil Justice Clinic at Washington University in St. Louis, discusses drug courts and her experience working in one of the earliest ones in the 1990s.

Concerns about Drug Courts

Quinn’s video presents us with several concerns about drug courts that should be unpacked. The first concern is one that could be viewed as both a blessing and a curse. In drug courts, judicial involvement with the defendant is much more intimate than it is in a traditional court setting. Judges are less like the neutral arbitrators of a normal court proceeding. Instead, they are as Quinn suggests, part of a “team” of people–which includes the defendant–who are working on the defendant’s sobriety. This could be of enormous benefit to drug users. And, in fact, the research suggests that one of the main indicators of success for a defendant in a drug court program is the level of involvement that a judge has in the process.

One study found a startling difference between defendants who were required to attend biweekly hearings with the judge in their case and those who only attended hearings on an “as-needed” basis. In the former group, 80 percent of participants graduated (completed the program) and in the latter group, only 20 percent of participants did so. Both groups involved high-risk drug court participants, meaning participants who had previously failed treatment.

One of the criticisms of drug courts is that the people who need them the most often don’t have access to them. Federal grants to establish these courts, which are still managed on the state or local level, make excluding violent offenders a pre-requisite to taking grant money. These courts also tend to restrict access to drug court programs for addicts who have long criminal records or histories of failure. Placement in a treatment program can also be difficult to get, with long wait times before entering into a program. Since placement in a program within 30 days is one of the strongest predictors of a successful outcome, these wait times have a negative impact on the success of drug courts, especially for women who have to wait twice as long for an available spot in a treatment program.

As Professor Quinn discusses in the video, defendants sometimes receive a longer sentence than they otherwise would have if they participate in a drug court program and fail–sometimes two to five times the length of the prison term they would otherwise have received. Since “flash incarcerations,” or short prison stays, are also one of the sanctions available to judges they may also spend more time in jail even if they have the charges dropped after graduating from the program and therefore face no sentence for their initial crime. Drug courts may also encourage law enforcement officials to arrest more low-level drug offenders since they view drug courts as a better means of processing them, which puts additional stress on the system and exacerbates some of these concerns.

Yet there is evidence that for some individuals these programs can be very effective. Take a look at this Ted Talk by Judge David Ashworth, who is the presiding judge of the Lancaster County Drug Court.

Measuring Results

The courts that Judge Ashworth describes may be different from the “typical” drug court because they are controlled at the state and local level and can vary widely. For example, Judge Ashworth’s court specifically targets “high risk” drug users. Participation is also voluntary and is designed, by his own admission, for people who already want to get clean. It is, however, a post-adjudication style court, meaning that the defendant pleads guilty as the first step in their drug court process.

The statistics he cites suggest that the drug court of Lancaster County has been particularly successful for those who graduate, reducing recidivism rates to below those of the national average. But not all of the participants in drug courts end up graduating from the program. Most of the pro-drug court data out there is written in terms of how much recidivism is reduced among graduates, but may not include the number of initial participants who enter the program in the first place.

Critics claim that this can lead to an overly positive picture of the impact of drug courts, particularly in jurisdictions that cherry-pick data. Jurisdictions are forced to exclude many types of potential defendants, most notably anyone who has committed a violent crime, in order to receive federal funding. One study indicated that, because of the eligibility restrictions, only 7 percent of the 1.5 million arrested for drug offenses were eligible to participate. Only half of the initial participants in most drug court programs end up graduating. A study of New York’s drug courts by the Urban Institute and the Center for Court Innovation found that for those who participated in drug courts, 64 percent of the non-graduates were re-arrested within three years, versus 36 percent of the graduates. But of those who were arrested but did not participate in a drug court, only 44 percent were re-arrested in the same period. So defendants were actually more likely to be re-arrested if they went to drug court and failed to complete the program than if they had gone through the normal court process in the first place.

One of the most significant issues with drug courts that Judge Ashworth did not address is the issue of maintenance treatment. Maintenance treatment, which involves using drugs like methadone to treat opioid addiction, is by far the most effective means of treatment–reducing the risk of death by 66 to 75 percent. But a third of drug courts will not allow it.

Drug courts vary widely in different localities, just as their effectiveness varies widely based on the kinds of judges serving on them. That can be positive in that it allows jurisdictions to experiment with different methods of operation. However in jurisdictions where those experiments are unsuccessful, it can lead to tragic outcomes and the judges involved in drug courts may not be specially trained in the science behind addiction, particularly opioid addiction. The increased flexibility of judges to deal with drug addicts in a drug court setting is only a positive if these judges are both eager to help the addicts in their court and properly educated on how to do so.

Conclusion

As a society, we have acknowledged that drug addiction, and the crimes that accompany it, are somehow different than other crimes; that it is as much a public health crisis as it is an issue of safety. Conservatives and liberals are both willing to seek innovations in how we deal with these individuals. Drug courts actually end up appealing to both sides of the aisle for various reasons.

The truth about drug courts is more complicated than it appears. These programs are not “hug-a-thug” initiatives, as Judge Ashworth points out. And while they may save money, they only do so when they keep people from seeing jail time at all, not when they just delay incarceration until after participants fail the program. The best elements of drug courts–judicial flexibility and interdisciplinary teams working with defendants–should be encouraged. In fact, these characteristics could be beneficial in other parts of the justice system as well, even for violent offenses. But the negative aspects need to be addressed. Defendants should not be coerced into pleading guilty to participate in treatment. Access to rehabilitation should be opened up to more cases, not just the “easy” ones that make drug courts look better, access should be increased for female offenders, and maintenance treatment for opioid addiction needs to be addressed.

Resources

The Sentencing Project: Drug Courts: A Review of the Evidence

Pacific Standard: How America Overdosed On Drug Courts

SADO: Michigan State Appellate Defender Office

WhiteHouse.gov: Drug Courts Fact Sheet

TribLive: Westmoreland District Courts First in PA to Offer Drug Treatment in Lieu of Punishment

National Institute of Justice: Drug Courts

U.S. Department of Justice: Drug Courts

DrugWarFacts.org: Drug Courts

Atlanta Journal-Constitution: Pro & Con: Drug Courts An Effective Alternative For Offenders?

Open Society Foundation: Drug Courts Are Not The Answer

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Are Drug Courts the Answer For Addicts Who Commit Crimes? appeared first on Law Street.

A well-known cliché when talking about gun control in the United States is the saying, “guns don’t kill people, people kill people.” It would be more accurate to say that guns don’t commit murder since a gun can accidentally kill you. But for a murder to have been committed there needs to be some level of intent on the part of a human being. Depending on the degree and the state, those levels of intent are different, but when we think of a killing as a murder we typically think of something that the person did “on purpose.” Back in the day criminal law referred to this mindset as “malice aforethought,” a phrase still sometimes used when discussing murder. It isn’t very illuminating since “aforethought” can mean in the blink of an eye and you don’t really need “malice,” or motive, to be found guilty of murder. But it does show that in criminal law, usually what we are looking to determine is whether that individual meant to kill someone.

Tort law is different. Most tort law is all about negligence. Were you acting as a reasonable person would act in that situation? If not, we may feel the need to punish you. This mythical reasonable person is the standard for how we should behave in society and people who are injured by someone not acting up to that standard should be compensated. The word “reasonable” appears so many times in a torts casebook that a law school drinking game involving it would be “outrageous.” That is also what you need to prove for some intentional torts–any conduct that would cause a reasonable person to shout “Outrageous!”

Tort law is all about economics. We do so much commerce and interact so often with each other that people are bound to get hurt. We use products every day that are dangerous, in some cases extremely dangerous, without thinking much about it.

Take ovens, for example. The convenience of using them far outweighs the potentially catastrophic costs if yours happens to explode. Modern ovens are pretty safe, I’m guessing. I didn’t research how often they explode so as not to freak myself out. But even if they were not, we have decided as a society to have them anyway and if a few of us lose our eyebrows it is just the cost of doing business. Rather than have everyone give up ovens, we have come up with a system where the injured party can be compensated by the person who made the oven. If they deviated below the standard of care that a reasonable person, in this case, a reasonable oven maker perhaps, would give to its construction.

Are guns any different? The issue of manufacturer liability for the makers of guns has become a hot topic in the presidential primary, particularly on the Democratic side. The argument centers around a 2005 law, the Protection of Lawful Commerce in Arms Act (PLCAA), and whether it should protect companies that manufacture guns from civil liability for injuries or deaths caused by the guns they make. Not if the gun explodes because it was improperly made, but if someone purchases it and then shoots a victim. Given the extent of gun violence, should we have a different standard for a product that is designed to kill?

Are Guns Special?

Before we delve right in, take a look at this clip from one of the Democratic debates where Hillary Clinton and Bernie Sanders tackle the issue of gun manufacturer liability. It provides a good overview of some of the main points and emotional influences on the debate.

When Can You Sue?

The great myth surrounding this question is that somehow the gun manufacturing industry has somehow finagled a way to be completely immune from all liability for any defect in their products. That isn’t the case. If you’re out hunting and you fire your weapon and the bullet flies out of the wrong end of the gun and kills you, your estate will be able to sue the manufacturer of that weapon under a few different theories. Either because that gun (the individual gun involved or all the ones like it) was improperly made, or it was made according to a faulty design. Either way, if you really were using the gun as a reasonable person would you’d likely have a winning case. Even a jury that didn’t know a whole heck of a lot about guns would probably think you were right to assume the bullet would shoot away from you when you pointed it at your target.

What the PLCAA essentially does is it declares that we are not going to allow courts to hear a lawsuit from a victim or a victim’s family against a gun manufacturer when a third party used that gun in a criminal act. If this law did not exist, these cases could be brought to trial but that doesn’t necessarily mean the gun manufacturers would or could be held liable for what happened. It would just mean that instead of having a blanket rule about this kind of case, we are going to force judges to dismiss the same thing over and over. PLCAA is really just a law saying “don’t even bother” to people seeking to bring this type of suit.

It gets into the weeds a bit when you start looking at sellers of guns who may target individuals who aren’t legally allowed to buy a gun, or who sell to a “strawman,” or a buyer who buys in bulk just to sell to others in order to avoid a background check. But are those sales where the seller, and or, gun manufacturer themselves doing something illegal or helping others to subvert the law? That’s a very different scenario from a legally purchased product, which meets safety standards for that industry, then being used to commit a crime.

You can once again see Senator Sanders trying to make that distinction here. It’s also one of the few times you’ll hear someone bragging about getting a “D-.”

Standards for Guns

The statutory shield for gun manufacturers that the PLCAA puts in place does not necessarily grant greater immunity to gun manufacturers relative to the immunity that other industries enjoy.

It is just one that we have put in place for a product that, by its very design, is meant to injure and kill. Other products that can injure and kill are not regulated to the same extent but they do not enjoy this statutory immunity. Not because they have a powerful lobby but because there aren’t enough cases to warrant passing a law that tells people to not waste court time bringing a suit that is likely to be dismissed.

Take knives as an example. I have a set of knives; I bought them on Craigslist. Not from a manufacturer but from someone who had some knives to sell. There was no regulation telling her she should assess my mental state and Henkel (the original manufacturer) had absolutely no idea that I was buying knives they made. They’re well-balanced and sharp. Equally adept at slicing chicken or people (I presume). If I used those knives to cut up my mother into tiny pieces instead of a chicken (just an example!) my father would be laughed out of court if he sued Henkel. Why? Because they had nothing to do with it. Their knife did the job it was intended to do and with remarkable German efficiency sliced what I wanted to slice. We don’t bother to have a law that says you can’t sue the manufacturer of a knife for this because so few people try doing it. That isn’t the case with guns.

The argument could be made that knives have a dual functionality, a legitimate one to make food, and an illegitimate one to commit harm. Guns only have one purpose, which is to cause injury, and on that basis, the regulation should be different. Manufacturers are on notice that their product is likely to be used to commit a crime and they have decided to make them anyway. Therefore, it is justifiable to hold them partially responsible when someone commits a crime with their gun. That argument may not hold water. In fact, it may lean even more heavily toward not holding manufacturers liable because the one thing that makes a properly functioning gun part of a crime is the person using it. Their behavior is the difference between a tool that stops your home from being burglarized or a tool that kills innocent children. It has nothing to do with the product. You could make the same argument about a sex toy used in a rape or sexual assault. What makes it part of a crime is the intent of the criminal actor, not the company that made it.

That isn’t to say that a manufacturer should never be held liable for a product that isn’t defective but is improperly sold or marketed. Using sex toys again as an example, if the manufacturer advertised the product as ideal for raping someone or targeted their advertising to a sex offenders registry, they could potentially be held liable civilly for their actions, maybe even criminally. But as with gun manufacturer liability, they would be being held liable on the theory that they did something illegal or helped others to do so. Not for anything to do with the functionality of their product.

We don’t currently have a separate rule for guns. What we have done is codified the idea that criminals are the ones responsible for the crimes that are committed with guns specifically. The way we have already acknowledged in our legal structure that criminals are responsible for the crimes that they commit with any product.

Conclusion

Guns are the weapon of choice for criminals for several reasons, one of which is that they are relatively easy to get–just check online. And while a criminal armed with a semi-automatic or an automatic weapon is more dangerous to more people than one armed with a knife, the mass shootings still make up a relatively small percentage of crimes. A gun policy based on that fails to deal with the many types of crime where other weapons, such as a knife, would be as effective.

If you think back to the Democratic debate in the first clip you’ll notice Secretary Clinton make the argument that increased liability is an attempt to deal with the epidemic of gun violence. There is a very real problem in the United States with people who get access to guns, sometimes through illegal means and sometimes through perfectly legal channels, who go on to commit violence. Perhaps the situation has changed since 2005 when the PCLAA was enacted and we need to reassess the balance that was struck with allowing these kinds of lawsuits to go forward. The law puts a standard in place for the manufacturer to have “knowingly” sold a weapon to someone who fails to pass a background check, but shields them in cases where they didn’t “know.”

There are more options than having the manufacturer need to actually know they are selling it to someone who failed the background check and a blanket liability whenever someone commits a crime. The mens rea (guilty mind) for murder comes in a variety of flavors, from intent to depraved indifference. Even extreme negligence can get you jail time in some cases. If we wanted to increase the number of people who could potentially sue a gun manufacturer but still keep it somewhat limited we currently have the legal tools to do so.

The question is–should we do so? Does the nature of a gun as a weapon, and the modern day weapon of choice for criminals, make it somehow unique among the various dangerous products we use? We know that we have a problem with gun violence and increased liability for gun manufacturers would probably put a lot of them out of business–depending on how easy you made it for them to be sued and the kind of judgments that were awarded. It might decrease the amount of guns available, which might reduce gun violence.

Or do we have standards for liability for guns the way we do for other products that could be used as weapons, holding them responsible if their product is defective or their sale is criminal but not holding them responsible for criminal acts from third parties. That would mean we treat guns like any other product that we sell instead of a special category of goods that need different rules.

Resources

New York Times: Congress Passes New Legal Shield For Gun Industry

PolitiFact: Clinton: Gun Industry is ‘Wholly Protected’ From All Lawsuits

NPR: Are Gun-Makers ‘Totally Free’ Of Liability For Their Behavior

Cornell University Law Schoo: PCLAA

New York Times: Justices Reject Suit Faulting a Vaccine

CNN: Why Sandy Hook Parents are Suing a Gunmaker

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Should Gun Manufacturers Be Held Accountable By Victims of Gun Violence? appeared first on Law Street.

Since 1977, unions that have been designated as the exclusive bargaining representatives for both private and public sector employees have been allowed to require all employees, union and non-union members, to pay union dues. These union dues, paid by both union and non-union members, cover the designated union’s “agency” costs, which in return, obligates the union to represent and bargain for benefits and working conditions for all workers in that unit, including non-union members. The Supreme Court has recognized that this involves “close questions under the First Amendment,” and the Court has made it clear that forcing non-union members to pay dues that would cover the union’s political or ideological activity violates the First Amendment.

Over the past four decades, this ruling of mandatory union dues found in Abood v. Detroit Board of Education has been constantly criticized and challenged in the Court. Recently, in Friedrichs v. California Teachers Association the Supreme Court was posed with the question by a group of California teachers on whether requiring non-union members in the public-sector to affirmatively opt out of paying nonchargeable portions of the agency fees each year violates their First Amendment rights. Read on to learn the effects of the Supreme Court issuing a decision with only eight justices, and to take a look at the court’s decision

Changes in Public Sector Labor

In 1977, the Supreme Court unanimously held in Abood v. Detroit Board of Education, that public workers have the right to join together and form a union that exclusively represents them in collective bargaining negotiations. The court also ruled that union members can vote to collect a “fair share” fee from all workers who receive union benefits “germane” to collective bargaining, which are “service charges used to finance expenditures by the union for collective bargaining, contract administration and grievance adjustment purposes.” This means that when workers vote to form a union, they can also decide that “all workers, regardless if they are union members, should share the cost of union representation, since all workers benefit from the bargaining agreements” according to AFSCME. However, the Court did determine that the First Amendment requires unions to provide workers with a means of opting out from dues that are not “germane” to collective bargaining. Meaning, workers must have a means to opt out of paying for dues related to political activities, including, activity related to political views, on behalf of political candidates, or toward the advancement of other ideological causes. According to SCOTUS:

The Constitution requires that a union’s expenditures for ideological causes not germane to to its duties as a collective bargaining representative be financed from charges, dues or assessments paid by employees who do not object to its advancing such causes and who are not coerced into doing so against their will by the threat of loss of governmental employment.

Following this decision, in 2012, in Knox v. SEIU, the Supreme Court determined that the longstanding precedent that the First Amendment demands that non-union members covered by union contracts be given the chance to “opt out” of special fees, was insufficient.  In a 7-2 decision, the majority ruled that it’s unconstitutional to allow a “public-sector union to impose a special assessment without the affirmative consent of a member upon whom it is imposed.”

The next major case heard in the Supreme Court in 2014, Harris v. Quinn, the Court held that “personal assistants” that provide homecare services cannot be compelled to pay dues to a union they do not wish to join, since they are hired and fired by individual patients and work in private homes. Since these home health care workers are not truly state employees, yet they are “partial-public employees,” Abood should not apply, and thus these partial-public employees are not required to pay partial dues known as “agency fees.” This Court’s decision led some unions to believe that the Court may be ready to overturn Abood and free all public-sector workers from compulsory dues. To gain a perspective of the effects of this ruling, the year following this decision, SEIU Healthcare Illinois, Indiana, Missouri, Kansas, which originally claimed about 60 percent of the caregivers in the state subsidy programs covered by this case, later reported that it only represents 30 percent of the state subsidy caregivers (about 13,000 in-home Illinois caregivers left SEIU) and cost the SEIU an estimated $5 million in member dues.

Recent Challenge to Union Dues 

#SCOTUS signals support for plaintiffs in Friedrichs v. CTA case, via @politico: https://t.co/ptGIJ5S9cB pic.twitter.com/6Znbe1mcWR

— 50CAN (@FiftyCAN) January 12, 2016

The most recent case heard in the Supreme Court, Friedrichs v. the California Teachers Association et al., challenged Abood and compulsory agency fees.

This case was brought by 10 California teachers, including Rebecca Friedrich who was the lead plaintiff, and a teachers group, Christian Educators Association International in California. According to California law, public employees who refuse to join unions must pay a “fair share service fee” typically equivalent to the dues members pay. The fees are meant to pay for some of the costs of collective bargaining.

Oral Arguments with Scalia; Court’s Ruling Without Scalia

In January 2016, the oral arguments were delivered for this case.

The plaintiffs tried to convince the Court to overturn Abood by arguing that agency fees violate their First Amendment rights, because bargaining with the state is no different from lobbying, as it is “inherently political.” They further argued that California Teachers Association does not “represent their interests on bargaining issues covered by fair-share fees.” Thus, California should not force them to financially support a union they disagree with. The Center for Individual Rights, who represented these plaintiffs stated that:

Typically, California teacher union dues cost upwards of a $1,000 per year. Although California law allows teachers to opt-out of the thirty percent or so of their dues devoted to overt political lobbying, they may not opt out of the sixty to seventy percent of their dues the union determines is devoted to collective bargaining. Requiring teachers to pay these “agency fees” assumes that collective bargaining is non-political.  But bargaining with local governments is inherently political. Whether the union is negotiating for specific class sizes or pressing a local government to spend tax dollars on teacher pensions rather than on building parks, the union’s negotiating positions embody political choices that are often controversial.

On the other hand, the defendants in this case, California Teachers Association, argue that, according to Huffington Post, that:

Since unions must represent members and non-members, it’s appropriate to require all who benefit from negotiations to share the costs. The loss of money from “free-riders” – those who benefit without paying – would threaten a union’s ability to effectively represent employees.

Furthermore, the defendants argued that they represent the views of the majority, and anyone who disagrees can speak up. They also say the plaintiffs:

Are simply wrong in declaring that it ‘does not make a First Amendment difference’ whether speech is part of lobbying the Legislature to enact a law or of negotiating a contract with the public employer. […] unlike lobbying, collective bargaining is a process of making binding collective agreements with obligations on both sides.

During and after the oral arguments, the court’s conservative majority appeared “ready to say that forcing public workers to support unions they had declined to join violates the First Amendment.” Justice Antonin Scalia was said to be the swing vote for this case. He had a history of endorsing union’s positions, but during the oral arguments for Friedrichs, Scalia “tore into core arguments made by the union and government attorneys.” Despite Scalia’s passing in February, the Court moved forward and handed down their decision at the end of March, with a 4 to 4 tie. A split decision at the Supreme Court level means that the lower court’s ruling will be upheld and the laws will be left in place until a future case challenges this issue. Thus, in the meantime, Abood will not be overruled and the 25 states and D.C. that require compulsory union dues can lawfully continue to require non-members to pay agency fees to support union’s collective bargaining agreements.

Conclusion: What’s Next?

The Center for Individual Rights announced that it will request a rehearing. According to the Supreme Court rules, a rehearing request must be filed within twenty-five days following the March 29th ruling. According to SCOTUSBlog: “It would require the votes of five Justices to order such a reconsideration, and one of the five must have been one who had joined in the decision.”

Though this is a grand victory for unions, the future of unions is still up in the air and largely depends on who replaces Scalia. Until then, the tension will continue between union supporters and anti-union advocates.

Resources

Primary

SCOTUS: Abood v. Detroit Board of Education

SCOTUS Blog: Opinion Analysis: Friedrichs v. California Teachers Association

Brief of Respondents

Additional

SCOTUS Blog: Argument Preview: Is Abood in Trouble? 
The Atlantic: What will become of Public-Sector Union’s Now?

The Center for Individual Rights: Friedrichs v. California Teachers Association

Huffington Post: This Supreme Court Case Could Significantly Weaken Teacher Unions

On Labor: Cases in the Pipeline: Challenges to Union Security Clauses

Editor’s Note: This post has been updated to credit select information to the Huffington Post.

Ashlyn Marquez

Ashlyn Marquez received her law degree from the American University, Washington College of Law and her Bachelor’s degree from The New School. She works in immigration law and has a passion for worker’s rights, tacos, and avocados. Contact Ashlyn at Staff@LawStreetMedia.com.

The post Friedrichs v. CTA: A Big SCOTUS Win for Unions, But Not Over Yet appeared first on Law Street.

Normally, eminent domain does not get a lot of discussion in presidential politics. In fact, outside of a relatively small circle of interested parties and intellectuals, it doesn’t get much discussion at all. The last time it got this much attention was a decade ago in the case of “Kelo v. City of New London” where the concept of eminent domain and the Takings Clause got to experience their moment in the sun.

The rise of Donald Trump as the probable if not presumptive Republican nominee for the presidency has brought this issue into the spotlight once again. Generally speaking, conservatives tend to be critical of the concept of eminent domain but Trump has professed the viewpoint that without eminent domain civic projects that we value would be impossible to complete.

But what exactly IS eminent domain? And the more interesting question: what should it include?

Pleading The Fifth: The Takings Clause

Eminent domain is basically the idea that the government can, in a specific set of circumstances, take your property.  The Takings Clause, which is a part of the Fifth Amendment that rarely gets invoked in movies or television prohibits the government from taking property unless certain criteria are met. The clause reads, “nor shall private property be taken for public use, without just compensation,” which is not a purely semantic distinction. Even those who support eminent domain would acknowledge that it is a violation of your property rights.

Land use law spends a good chunk of time on the Takings Clause, going through each of these elements. Over the years, the Supreme Court has had to define what private property is (while it seems simple enough, does it include the airspace above your house?), when it has actually been taken (in honor of the late Justice Scalia Google “regulatory takings” and “Lucas v. South Carolina Coastal Council”), and what is a public use. This is where much of the discussion of eminent domain has focused on recently in the presidential debates. In the video below you can listen to Jeb Bush and Donald Trump discussing the issue of eminent domain in regards to Mr. Trump’s conservative credentials and real estate dealings.

It may take a minute to unpack some of the arguments that are going on in this clip. The first discussion is whether the concept of eminent domain, where the government may take someone’s land for public use, is a good thing. There’s also whether it is consistent with “conservative” principles. Mr. Trump uses the example of a hospital as a public use and states that it would be impossible to build things like hospitals without eminent domain.

That’s probably true. If the government did not have the power to seize property (both the federal government and state governments have this power) then any private citizen who owned property where the government wanted to build a hospital could either refuse to sell and thwart the project or hold out for such an exorbitant price that it would make any new project too expensive to be undertaken. While it certainly wouldn’t be an irrational reaction–who wouldn’t want to sell their home for 100 times what it is worth?–it wouldn’t be a very civic-minded response and ultimately we would have fewer hospitals.

Keep in mind that the government does not just take your house. If it takes your property it does pay you for it, so it isn’t all bad news. Collectively, we have decided that we are willing to have a few of us get forced to sell our property, as abhorrent as that is to the American psyche, in favor of having things like hospitals and roads.

The second argument comes on the tail of the first–once we have decided that for a public use we are going to allow this violation of our property rights–what is a public use?  Hospital, yes fine. But what about parking spaces for your limousine?

Economic Development: “Kelo v. City of New London“

Although neither one references it, Governor Bush and Mr. Trump are having what I presume is a more spirited version of the in camera arguments that the Supreme Court had in “Kelo v. City of New London.” Things like hospitals, roads, and bridges are recognized by the majority of people to be public uses. But in the Kelo Case, the government was arguing that its plan to develop the land for the City of New London’s economic benefit was a public use. The government didn’t need to build an actual public structure, like a bridge, to be a public use, it just needed to be something that was benefitting the public as a whole.

The Supreme Court agreed with the city and ruled in its favor–an economic benefit to the public can be a public use.  And the government can take a piece of property (again, they do have to pay you something!) and then sell or contract with a developer, such as Mr. Trump, to build on the land.

Another dispute over eminent domain occurred in Lakewood, Ohio. As “60 Minutes” notes, the city of Lakewood wanted to take the Saleet family’s house in order to put in condos and a strip mall. While the Saleet family eventually won their dispute, allowing them to keep their home, the questions at the intersection of eminent domain and economic development remain difficult to answer.

This expansion of the understanding of what constitutes a public use has been met with opposition from people of various political stripes. One group, the Institute For Justice, which is a self-described libertarian public interest law firm, has been very active in pushing back against this understanding of “public use” believing that it is an infringement on property rights. In the video below the Institute for Justice explains some of the responses from state governments and individuals to the Kelo decision.

The Supreme Court in Kelo found the comprehensive nature of the city’s plan to develop the area to be a persuasive argument in favor of characterizing it as a public use. It wasn’t just building one hotel on the property and calling it a day, which may distinguish the issue in Kelo from other cases in the future where the government wants to get rid of a single “blighted” property in favor of a “better” economic option. This is what Governor Bush implies that Mr. Trump tried to do. But, in fact, they are having two separate arguments.

Mr. Trump’s attempt to buy property has nothing to do with eminent domain and linking his attempt to get someone to sell him their home so that he can expand on his existing property or build a new one mischaracterizes what eminent domain is. Eminent domain is purely government action. Not action by private citizens. Mr. Trump isn’t using eminent domain when he makes an offer on a property so he can build a hotel. Even if he uses, as is alleged, strong-arm tactics against elderly widows. His actions aren’t a government curtailment of property rights but rather a use of his property rights–any and all elderly widows that he might try to buy land from have the right to refuse his offer if they want to. It is their property to sell or not sell as they see fit. So talking about Trump’s behavior doesn’t really make sense in a discussion about eminent domain and what is or should be legally acceptable for government action.

The real issue is whether the government should be able to forcibly purchase property to promote economic development. Governor Bush’s argument is that position is not consistent with “conservative” principles. In this case, the “conservative” principle being that when the property is privately owned, the government should have to jump through some hoops to get to it. One of those hoops is that the government needs to make a case for why this is a public use. For many, economic development, however noble that goal is, does not meet that burden. Economic development may be a good idea but it isn’t within the scope of what the government is allowed to violate your property rights to achieve.

Others would argue that government is in the business of promoting good ideas, or at least it should be. And taking an area that is economically “blighted” and turning it into a collection of homes or businesses that improve the community is a good use of the government’s time and energy. We can’t let holdouts, whether they are doing so because of an intense love for their particular house or for an incredibly generous pay-day, halt economic progress that would benefit everyone in the community. They argue that the government needs to be able to promote not just the structural necessities of public life (a road or a bridge) but also the broader concerns that affect the quality of life. After all, people probably claimed back in the day that a hospital wasn’t a public use either, since it isn’t a strictly necessary structure. Yet now a hospital would be generally accepted by all but the most dyed-in-the-wool libertarians as a fair use of eminent domain. This is just the modern evolution of the concept of public use.

Conclusion

Eminent domain is sort of like taxes. Nobody necessarily wants to pay them but we all know that we need taxes or there would be potholes everywhere–the government wouldn’t be able to do anything. Even if we think of taxes as state-sanctioned theft, we let it go because “taxes are what we pay for a civilized society.”

There is a sliding scale–from a bridge to a hospital to a strip mall–and most may go along with it to the hospital but no further. Economic development is great and should be encouraged. But allowing a forcible purchase of property by the government to promote positive development is a bell that you can’t un-ring. It may not be the most interesting issue to think about (and certainly it isn’t the most interesting issue where Mr. Trump is concerned) but eminent domain is government power with very real immediate and future consequences that warrant discussion.

Resources

Primary

FindLaw: Kelo v. New London

Additional

Washington State University At St. Louis: A Brief History of The Takings Clause

CBS News: Eminent Domain Being Abused

National Review: Kelo v. City of New London Ten Years Later

IRS.gov: Tax Quotes

Department of Justice: History of the Use of Federal Eminent Domain

Brown Political Review: “Public Needs” Abuse Eminent Domain for Economic Development

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Blighted: What Exactly Is Eminent Domain? appeared first on Law Street.

Like most topics in law school, child support is discussed first by talking about the theoretical reasoning behind it and then with a series of very dry formulas for how it actually works in practice. In theory, child support payments from the non-custodial parent are not meant for the other parent, rather it is money for the child. The custodial parent can’t bargain it away, he or she is supposed to be acting in the child’s best interest and spending the money to support the child. It is more like a responsibility that both the parents have to the child than a debt owed to the custodial parent.

Also, like most topics in law school, the real world application of the law has very little to do with supporting the rationales behind it. The goal of the collection of benefits we call “welfare” as well as child support is to provide basic necessities for children and help lift them out of poverty. But does the current system actually accomplish the goals that it is set up to accomplish?

Magical Thinking: Calculating and Collecting Child Support

For parents who want to receive welfare benefits, there may be a perverse incentive involved with seeking the child support that is owed to their children. Receiving child support, Social Security assistance, or having a job may leave you ineligible to receive welfare assistance. A recent feature story from the Washington Post about poverty, particularly in the deep South, illustrates the challenges faced by people who are in deep poverty but are unable to get help for their basic needs. The article’s main subject, Lauren Scott, is a single mother looking for work. Although she was not receiving child support from the father, she was deemed ineligible for welfare benefits. The other women featured, who were seeking benefits with Scott, were told not to apply for benefits if they were receiving child support payments for their children. In this particular county in Georgia, the eligibility criteria did not take into account the possibility that a person receiving child support could also still need welfare benefits–it’s one or the other.

A parent who needs benefits, typically the mother, may choose to not seek child support payments from the non-custodial parent, typically the father. If the parent thinks they are eligible for welfare benefits as long as they don’t receive child support payments they may actually be better off foregoing the child support, or they believe they would be.

If the non-custodial parent is able to be located, they may be “judgment proof,” which is the legal term for a situation where there is no income or property to pay off a judgment against you, regardless of how justified the creditor may be in trying to collect. If the parent lives in a state that garnishes wages for unpaid child support but doesn’t have a job in the first place, the custodial parent won’t be able to collect, even though the child is owed that support.

Many of the non-custodial parents who owe child support are, in effect, judgment proof. As of late 2015, unpaid child support in the United States was $113 billion. Most of that debt, about 76 percent of it in 2013, is owed by individuals who earn less than $10,000 a year. In her comments to NPR, Vicki Turetsky, the head of the federal Office of Child Support Enforcement, refers to the current structure for the calculation and attempted collection of child support payments as “magical thinking.” Even if a non-custodial parent declares no income when the child support order is being issued, the court will calculate what they owe based on a fictitious job–often full-time minimum wage work. Incarceration is also considered “voluntary employment” in terms of calculating child support.

Take a listen to the report here which explains how child support is calculated and some of its consequences.

Perverse Incentives

Calculating child support payments based on income that does not exist and then punishing individuals for non-payment doesn’t lead to an increase in collected payments. The way that child support payments are distributed to custodial parents who receive welfare benefits may also provide a perverse incentive to those beneficiaries to not seek child support. A perverse incentive is a policy that is meant to encourage a certain positive behavior but actually provides an incentive for a negative behavior, often the opposite of the original intention. In the case of child support payments, we want children to benefit from the support they are entitled to, and when that is not enough, to supplement that with the social safety net. But by not allowing custodial parents access to both–by eliminating welfare assistance when they receive child support–we cut potential revenue streams available to that child and even encourage parents not to try to collect child support.

Many states garnish wages for unpaid child support payments. In Illinois, the state can use some of the money from the garnished wages to offset the TANF (Temporary Assistance for Needy Families) payments made to custodial parents. No more than $50 of the child support payments were actually given to the child if their parent was receiving welfare. States can use garnished wages to replenish their TANF funds, which are used for the custodial parents welfare assistance. This occurs even though, in theory, that child support is owed to that individual child from that individual parent.

The federal government allows states to pass on up to $200 dollars for two children through child support payments that are received from garnished wages, allowing that money to make it to the custodial parents. But it does not give them the discretion to give the entirety of the child support payment to a parent on welfare. So even if the state wanted to encourage a parent to seek child support while they were also receiving TANF payments, they are only able to collect some of what they are owed.

Reform Attempts

States have tried other ways to incentivize parents to make child support payments and to engage in other positive behaviors by dealing with the debt they find themselves in for missed payments. As NPR explains, Maryland is implementing programs to help forgive child support debt  and clarifying the difference between child support and state-owed child support. State-owed child support is a child support payment that will go back to the state to reimburse taxpayers for the welfare payments they made to the custodial parent.

For example, Maryland is trying to forgive 10 percent of the parent’s child support debt in exchange for the completion of a month-long employment training program and then getting a job. It’s a win-win for both the state and the parent because the state has no ability to collect the outstanding debt from an unemployed person. Put simply, forgiving the 10 percent is a smart way to make collecting the outstanding 90 percent possible. It also benefits the parents who finish the program because their debt burdens are lowered and they now have a job.

Completing a Responsible Fatherhood Programs will get you another 15 percent and you can then eliminate 50 percent of your outstanding debt if you keep up to date with payments for a year. So an unemployed father in Maryland who owes $10,000 in child support debt, which he is completely unable to pay, may be able to eliminate 75 percent of that debt by participating in an employment program, a parenting class, and by showing that he can, when employed, consistently be relied upon to pay what they owe. The state did lose that $7,500 that it forgave. But going forward, the child is now receiving the support to which they are entitled. If that parent had remained unemployed, the state would have still been owed $10,000 and the debt would continue to grow. These experiments in Maryland have yielded positive results, collecting twice as much as state forgave.

Conclusion

The idea that parents should be financially responsible for their children is deeply ingrained in the way that our child support system is set up. The policy is designed to make sure parents are held accountable for their children The image of the “dead-beat dad” also indicates that parents who don’t pay child support do so because they choose not to, not because they can’t afford it. However, the data indicates that individuals who owe child support are typically men who make less than $10,000 a year. These are men who are unable to make the payments as they are initially calculated, especially if they are currently or have previously been incarcerated.

The system also forces many people to choose not to seek child support. When forced to choose between a potential welfare payment and a potential child support payment, many parents would choose the welfare payment. A system that reduces payments, but does not eliminate them completely, would provide an incentive for parents to seek support. Moreover, the children can only benefit if the parent is able to pay the support in the first place.

States that have begun to experiment with debt relief measures have found that they can increase the payments they receive. Other states have sought to stop the accrual of child support debt for individuals while they are incarcerated. Both of these measures have had positive results because they allow parents who owe child support to at least pay part of their debt

The underlying goal should be to help raise children out of poverty and provide for their basic necessities. By structuring systems that incentivize parents to seek–and enable the other parent to make–payments, states can increase the amount of support that children receive and lift them out of poverty.

Resources

NY Times: Poverty and Perverse Incentives

The Washington Post: Lost Opportunity In the Deep South Part 4

Scientific American: Magical Thinking

NPR: Some States Are Cutting Dad’s A Deal On Unpaid Child Support

NPR: From Deadbeat To Dead-broke: The Why Behind Unpaid Child Support

NPR: How U.S. Parents Racked Up $113 Billion In Child Support Debt

Chicago Tribune: Welfare Law Formula Doesn’t Support The Family

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Blood From A Stone: Child Support’s Perverse Incentives appeared first on Law Street.

In American culture, there is a deeply ingrained moral value placed on work. On having an “entrepreneurial spirit” and a strong work ethic. It is part of what makes America a great country. “Greed is good” may be the slogan we use to describe capitalism, but for those of us who get up in the morning to go to work, it isn’t greed that motivates us. It is the sense of purpose and dignity that we get from our jobs and from doing those jobs well. And, from needing to eat.

Most Americans agree that there is a standard of living that we should not allow our citizens to fall below, even if it means that we use some of our resources to help them. We don’t think it is morally right for fellow citizens to starve, especially children. Our policies on public assistance reflect that belief and try to provide the very basics of life to everyone.

These policies also reflect a tension between American generosity and the American ideal of the entrepreneurial spirit. In an effort to both prevent hunger and to protect the American work ethic we reformed assistance programs to eliminate cash benefits and to tie receiving benefits to work or the search for work. It has led many recipients of SNAP assistance, more commonly referred to as food stamps, to sell their benefits for cash rather than using them for food. This is a crime and may carry fines, jail time, and a loss of benefits. One that we spend a lot of time and effort trying to eradicate. But should we? Or should we be turning a blind eye to, or maybe even encouraging, the sale of food stamps for cash?

Say It With Cash

Take your net income per month and divide it by 30. For most of us, the amount is probably more than $2. Yet many Americans are living on $2 a day or less.

In the book “$2 A Day: Living on Almost Nothing In America,” authors Kathryn Edin and Luke Shaefer go into a detailed explanation of the history of welfare reform in recent decades and a series of interviews with Americans who live on $2 a day or less. In October 2015, PBS interviewed Edin who spoke about some of the book’s major themes:

The book’s central theme is that while food is the most important necessity for people in poverty, they also have other needs that can only be met with cash. Goods like electricity, clothing, and phones might be considered luxury items but are vital tools in looking for work. Because they have no other source of income they end up selling things to get cash–like plasma, sex, and food stamps. The cash that they get is able to be used for necessities that food stamps can’t pay for.

The beauty of cash is that it allows you to purchase whatever you need with it. If at that particular time your most pressing need is clothing, cash allows you to sacrifice your need for food in favor of clothing. It gives the person the choice of how to best allocate their resources. The downfall of course, from the point of view of the taxpayer, is that a recipient of cash may decide that drugs or alcohol, and not food, is their most pressing need and use the cash for that. It is partly this fear of misuse that encouraged the reformation of welfare from cash benefits to benefits like SNAP, where recipients are locked into only buying food with their EBT cards. It also drives the movements emerging in many states to prevent these benefits from being used for certain luxury food items or junk food items.

Contract Of Adhesion

For many, the main concern with the sale of food stamps is not that people are selling them but how much they are getting. Selling your food stamps is a terrible deal. The going rate for $100 worth of food stamps is between $50-60 dollars depending on what part of the country you are in. By selling your food stamps, you’re losing about half of your purchasing power. In some places, if the store owner is particularly friendly, it can be a little better, but generally, sellers take a loss.

The relationship between food stamp buyer and seller is an unorthodox example of the legal concept of a contract of adhesion. A contract of adhesion is a legal phrase for “raw deal.” Essentially, when the bargaining power of the parties is very unbalanced, so much so that the weaker party really can’t meaningfully negotiate the terms of the contract, courts may take a look and invalidate the contract or provisions of the contract that are “unconscionable.” Typically, contracts of adhesion are things like insurance contracts, mortgages, and credit cards. The little guy versus the big guy. These contracts are often “boilerplate” meaning that they are pre-written and the same for everyone. The little guys here aren’t special and don’t really have a way to haggle with the big guy to get a better deal. So courts will give those contracts a closer reading in a light that favors the little guy.

Selling your food stamps is a lot like that. For one thing, if you need the cash you NEED the cash. Just like someone who is buying a house really does need a place to live and maybe can’t negotiate with the lender. Only perhaps more so because a home buyer doesn’t necessarily need that specific house. The cash buyer may not also have the luxury of shopping around for the best rate. Just as a home buyer may not have enough good options for a line of credit, the cash buyer may not have enough potential buyers they can go to–there may only be a few people willing to buy food stamps in a given area.

The illegal nature of the sale has the effect of making the contract even more unfair for the seller because the buyer is charging a fee to assume that risk. The greater the risk of a fine or jail time to the buyer, the more the money cost. So instead of getting $60 for your $100 worth of food stamps you might get $50. These are the same issues that prevent the seller from negotiating for a better price. Someone might be perfectly willing to give them $85 in cash for $100 in food stamps. But sellers may be reluctant to shop around because doing so increases the likelihood that they could be caught. Increasing sting operations, which are designed to stop the sale of food stamps, may only drive the price down and may not have diminished sales meaningfully.

This video from Democracy NOW! provides another account of how SNAP recipients are selling their food stamp benefits.

In 2012, the USDA’s Office of the Inspector General, which is in charge of prosecuting SNAP fraud, devoted half of its resources to combating SNAP fraud and abuse. This includes both fraud in collecting benefits when you shouldn’t as well as “trafficking,” the official term for selling food stamps. That year it investigated 15,000 stores and did 4,500 sting operations. Out of the 15,000 stores, 2,100 of were either shut down or sanctioned, meaning that 14 percent of the stores were punished. The 4,500 undercover investigations resulted in 342 convictions, about 0.75 percent.

The problem with the selling of food stamps is that we aren’t sure what the sellers will be buying with their cash. Most of us are sympathetic when we hear about a woman who sells her food stamps to buy diapers, which you can’t buy with food stamps. Even if that activity is illegal, many of us do not find it to be quite so immoral. But because the sale of food stamps is a contract of adhesion that mother, and many like her, is able to buy a lot fewer diapers than she normally would be able to after selling her food stamps. And we fear that she won’t be using it to buy diapers at all but to buy alcohol or drugs.

This is a legitimate fear. Changing the program to one that is purely cash assistance would allow recipients to use the money on anything they want to. That is both the benefit and the drawback of that change. They may choose to buy diapers or electricity, or they may buy vodka. There would be no way to effectively control their spending if the benefit was pure cash.

The Parable of The Talents

There was one story in “$2 A Day” of a SNAP recipient spending her benefits on junk food. Rather than buying healthy foods, she chose to spend it partly on transportation (through an illegal conversion from food stamps to cash) and partly on cups and Kool-Aid. She was able to make popsicles and then sell them for a dollar each–increasing her income with that initial investment. Rather than taking the 50 percent value of her food stamps in cash and buying her other necessities, she took that cash and turned it into more cash.

She’s a criminal and an entrepreneur. The cash from the food stamps was a greater benefit to her than the food stamps themselves. So how do we craft a policy that will protect the taxpayer interest in keeping that money from being spent in inappropriate ways while still promoting the core American value of the entrepreneurial spirit?

Proposed Reforms

Reformers from all points on the political spectrum have advocated amending welfare benefits such as SNAP and TANF (Temporary Aid To Needy Families) in an attempt to help those programs combat poverty in a more meaningful way. Many of these reforms focus on trying to change the incentives for beneficiaries by encouraging behaviors that are thought to alleviate poverty and provide social benefits, particularly marriage, in addition to encouraging work. Republican presidential hopeful Jeb Bush proposed eliminating the various programs that we call “welfare” (TANF, SNAP, etc.) and instead provide states with block grants so that they can choose how to provide benefits. Currently, states have a lot of leeway in how they structure their benefits–which leads to a lot of differences in the support people can receive in various states–but they are all within the framework of meeting federal government criteria to get funding. That usually means work requirements. Eliminating the need to satisfy federal requirements would allow states to experiment further.

One positive aspect of that approach is to use federalism to our advantage and allow states to each try a slightly different method of delivering benefits to low-income individuals. But it does not change the need that many poor individuals have for cash benefits who qualify for SNAP but not TANF. States are unlikely to adopt less stringent work requirements for aid, in fact, the trend has been in the opposite direction. In Maine work requirements were tied to food stamp benefits in 2015, which resulted in a sharp reduction in the number of people receiving SNAP benefits.

Other Possible Solutions 

One solution might be to develop a hybrid system for benefits. Like most of the changes proposed it would require more of an investment in the program. But we could set up a system where the SNAP benefits are primarily for food, with a small portion of the benefits made available in cash as well. That cash might be used for bad purposes, but if only a portion of the benefits was available in cash then not all of the benefits would be “wasted.” Some would still need to be used for food though they could still be sold on the black market. The initial investment would be in determining the correct ratio of cash to food stamps but it wouldn’t require as much monitoring as other options.

There is a government program already in existence, TANF, which does provide cash assistance to families that qualify. This program was designed as a replacement to Aid To Families With Dependent Children (AFDC) and sought to tie cash assistance to work requirements. To get funding for the program from the federal government, states must maintain certain percentages of working recipients. The goal of tying work requirements to the receipt of assistance is to encourage people to seek work and to make sure that families do not develop a cyclical dependence on TANF. There are also time limits placed on the benefits for that same reason.

The problem is that for many people, particularly after the Great Recession, they are unable to find employment that can satisfy these work requirements. This has cut the amount of people receiving cash assistance drastically since 1996. In 1996, 68 out of 100 families in poverty received TANF. In 2013, only 26 out of 100 families in poverty received it. Cutting the number of people who are eligible makes it so fewer people receive benefits, but that does not actually reduce the number of people in need. Even if TANF was an effective program to assist the working poor it does nothing for families who have fallen out of the mainstream economy almost completely.

Another option is to increase the number of vendors of legitimate products that we want people to purchase who accept food stamps. Instead of making food stamps into cash just make them more like cash. Encourage, or require, utility companies and clothing stores to accept EBT cards as payment. That way recipients can use an EBT card to pay for electricity or clothing without having to take the loss of purchasing power that accompanies turning it into cash on the black market.

There are some programs that attempt to deal with the needs for a phone and for utility subsidies for low-income Americans. For example LIHEAP (Low-Income Home Energy Assistance Program) provides federal funding to states to assist families with their utility costs. However, each state can set its own eligibility standards, which is true of the other programs as well. As a result, the rate of people receiving benefits ranges widely across states. In states where you need to receive TANF in order to qualify for LIHEAP, the non-working are once again left out.

A final option would require more manpower to distribute aid but might do the most to both encourage personal responsibility on the part of the benefits recipients as well as eliminate potential fraud: working with beneficiaries to help figure out what their greatest needs are and then tailoring their benefits accordingly. The poor are not a monolithic group. Those in rural areas may be able to supplement their diet with home-grown food and so may need less in food stamps but more in their transportation budget. Someone who is poor in an urban area might be able to travel on foot while they hunt for work but because they live at a shelter they need a cell phone to be able to contact potential employers. Matching the benefits more closely to the individual needs satisfies our core value of encouraging personal responsibility while also protecting our interest in only spending our tax dollars on items we approve of.

Conclusion

SNAP recipients selling their benefits for cash is a growing phenomenon that is unlikely to go away even with more vigorous efforts to combat it. The types of needs that the poor have here in America almost require the use of cash rather than food stamps alone. Even so, Americans struggle with how to balance our values: concern for the poor and the promotion of the entrepreneurial spirit.

Resources

Goodreads: $2.00 A Day: Living On Almost Nothing In America

Fox News: State Food Stamp Purchases

The New York Times: Food Stamp Fraud, Rare But Troubling

Cornell University Law School: Legal Information Institute: Contract of Adhesion

CBS: Food Stamp Recipients Selling Benefits For Cash

United States Department of Agriculture: Food and Nutrition Service: Fraud

The Weekly Standard: Food Stamp Trafficking Up 30 percent From 2008-2011

The American Prospect: Stop Worrying About Food Stamp “Fraud”

Government Accountability Institute, Profits From Poverty: How Food Stamps Benefit Corporations

SNAP to Health: The History of SNAP

Center on Budget and Policy Priorities: Policy Basics: An Introduction to TANF

Journalist’s Resource: Inequalities In U.S. “Safety Net” Programs For The Poor

CNN Politics: Jeb Bush Releases Welfare Reform Proposals

International Business Times: Which US States Have The Most Welfare Program Benefits?

The National Review: Getting Welfare Right

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Entrepreneurial Spirit?: Behind the Sale of Food Stamps appeared first on Law Street.

The world was rocked by the death of 79-year-old Justice Antonin Scalia on Saturday, February 13, 2016. Scalia, the longest-serving justice on the current bench, was appointed by President Ronald Reagan on June 17, 1986 following the resignation of Chief Justice Warren E. Burger. His three decades on the Court have proven to be legendary and exceptionally influential in the interpretation of law and the Constitution. Even his passing has, fittingly, sparked a constitutionally-based showdown of governmental powers and the appointment of a new justice. Read on to learn more about Justice Scalia’s influential and legendary service to the Court and the politically fused debate regarding the appointment of a new Supreme Court Justice.

Who Was Antonin Scalia?

Justice Antonin Scalia was a conservative originalist powerhouse within the Supreme Court who unapologetically defended the Founding Fathers’ intent and precise wording of the Constitution to his last day. His interpretation was fully vested in originalism, an ideology that deems the Constitution a dead document–one inflexible and unchanging to the environment and developments of the world in which it was created.

Scalia was a master in crafting polarizing opinions which were widely criticized by many and revered by others. His stances on women, abortion, and minorities made him an unfavorable justice among Democrats particularly. His protection for privacy highlighted his commitment to the Constitution. Yet, his ability to artfully and logically decipher complex analyses in a nuanced manner was an undeniable talent; Chief Justice John Roberts dubbed Scalia a “leader of the conservative intellectual renaissance.“

Noteworthy Cases: A Legacy Through Opinion and Text

Here is just a sampling of the many noteworthy cases that define Scalia’s time on the court:

The Second Amendment

Justice Scalia delivered the majority opinion for District of Columbia v. Heller in 2008 in a step-by-step breakdown of the operative clause in the Second Amendment, concluding the right to bear arms extended to the people of the United States beyond the context of “militia” as cited in the Second Amendment. Scalia’s opinion further developed the limitations of the right to bear arms, drawing from a historical context and English implementation. He stated,

[T]here seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms…we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

Privacy

Scalia led a crusade for the protection of privacy. Justice Scalia’s 2001 opinion in Kyllo v. United States set a clear limitation on police intrusion. In a 5-4 ruling, police were barred from utilizing thermal-imaging devices to explore the insides of a private home otherwise unknown without physical intrusion as a protection of the Fourth Amendment and unreasonable searches without the requisite warrant. The use of thermal-imaging was deemed to be an “intrusion into a constitutionally protected area.”

The Fourth Amendment

Scalia’s conclusion in Florida v. Jardines further cemented the Fourth Amendment definition of a search by finding that the use of a drug-sniffing dog on private property was considered a search and therefore, required a warrant. In 2013, when the Maryland v. King decision granted police the ability to collect and analyze DNA samples from individuals arrested for but not yet convicted of crimes, Justice Scalia delivered a fierce dissent. He stated:

[N]o matter the degree of invasiveness, suspicionless searches are never allowed if their principal end is ordinary crime-solving. A search incident to arrest either serves other ends (such as officer safety, in a search for weapons) or is not suspicionless (as when there is reason to believe the arrestee possesses evidence relevant to the crime of arrest).

He was joined by Justice Ginsburg, Justice Sotomayor, and Justice Kagan in his dissent. Most recently, Justice Scalia supported the decision in Rodriguez v. United States, which extended Fourth Amendment protections for motorists detained for an extended period of time to allow police to conduct a dog-sniff without reasonable suspicion. Such police conduct was found to be in violation of the Fourth Amendment.

Gay Marriage and Rights

Justice Scalia was widely criticized for his conservative  stance on a variety of large-scale issues facing a more progressive America. His dissents regarding LGBTQ rights were particularly controversial. These range from his dissent in United States v. Windsor to his dissent in Lawrence v. Texas in which he stated that the Court had “largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct” when the majority invalidated Texas’ same-sex sodomy ban. In his vehement opposition, Justice Scalia compared homosexuals to drug dealers, prostitutes, and animal abusers, garnering him significant criticism.

Abortion

Justice Scalia continuously criticized the bench on abortion jurisprudence, and stated, in Hodgson v. Minnesota, “I continue to dissent from this enterprise of devising an Abortion Code, and from the illusion that we have authority to do so.”

In 1992, his partial dissent in Planned Parenthood of Southeastern Pennsylvania v. Casey reinforced his stance:

That is, quite simply, the issue in this case: not whether the power of a woman to abort her unborn child is a ‘liberty’ in the absolute sense; or even whether it is a liberty of great importance to many women. Of course it is both. The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the ‘concept of existence, of meaning, of the universe, and of the mystery of human life.’ Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected–because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribe.

After three decades of service, one thing remains starkly clear–Justice Scalia remained dedicated to and bound by the words of the Constitution and what he viewed as the intent of its writers. His stances, often argumentative and unforgiving, remained unwaivering.

Has Justice Scalia’s Passing Caused a Constitution Crisis?

Before Justice Scalia’s passing could properly be mourned, the American public was reminded of the extremely high stakes in the 2016 election as Republicans took to the streets in an effort to prevent President Obama from nominating a justice to fill the current vacancy on the bench. Just thirty minutes after the news of Scalia’s death broke, Ted Cruz took to his Twitter and posted to say: “Justice Scalia was an American hero. We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement.”

A variety of reasons have been stated for the opposition to nominate Justice Scalia’s replacement. Senator Rand Paul weighed in, finding that a conflict of interest would exist if President Obama made a nomination as he has too many of his own policies before the Court. Conn Caroll, communications director for Utah Republican Mike Lee stated, “What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia?” Donald Trump called for the Senate to “delay, delay, delay” and Ted Cruz stated, “the Senate needs to stand strong.” Ohio Governor John Kasich reminded the world, “I just wish we hadn’t run so fast into politics.”

However, Democrats fired back by pointing out that it is written in Article II, Section 2 of the Constitution that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court.”

Hillary Clinton commented: “It is outrageous that Republicans in the Senate and on the campaign trail have already pledged to block any replacement that President Obama nominates.” Further reminding the public that President Obama remains in office until January 20, 2017 and has a duty to continue filling his obligations as Commander in Chief. Senator Elizabeth Warren demolished naysayers with the following statement that went viral:

The sudden death of Justice Scalia creates an immediate vacancy on the most important court in the United States. Senator McConnell is right that the American people should have a voice in the selection of the next Supreme Court justice. In fact, they did — when President Obama won the 2012 election by five million votes. Article II Section 2 of the Constitution says the President of the United States nominates justices to the Supreme Court, with the advice and consent of the Senate. I can’t find a clause that says “…except when there’s a year left in the term of a Democratic President.” Senate Republicans took an oath just like Senate Democrats did. Abandoning the duties they swore to uphold would threaten both the Constitution and our democracy itself. It would also prove that all the Republican talk about loving the Constitution is just that — empty talk.

President Obama has already pledged that he will fulfill his duty to nominate an individual to fill Justice Scalia’s vacancy and the list of potential nominees includes many extremely qualified individuals. The list includes, but is not limited to: Sri Srinivasan of the District of Columbia Circuit Court of Appeals, Patricia Ann Millett of the D.C. Circuit Court of Appeals, Paul Watford of the Ninth U.S. Circuit Court of Appeals, Merrick Garland, the Chief Justice of the D.C. Circuit Court of Appeals, Attorney General Loretta Lynch, Jane Kelly of the Eighth U.S. Circuit Court of Appeals, and Jacqueline Nguyen of the Ninth U.S. Circuit Court of Appeals.

While it is unclear how the battle between President Obama and the Senate will play out, it is important to note the Senate has never taken more than 125 days to confirm a Presidential Supreme Court nominee. At the time of Justice Scalia’s passing, President Obama still had 342 days left in his term. Since 1900, eight individuals were nominated during election year, six were confirmed. With that said, there is still plenty of time for President Obama to nominate a Supreme Court Justice and for the Senate to confirm–we will just have to wait and see how this constitutional showdown plays out.

Resources

Primary

Cornell Legal Information Institute: District of Columbia v. Heller

 Cornell Legal Information Institute: Texas v. Johnson

Cornell Legal Information Institute: Kyllo v. United States

Oyez: Florida v. Jardines

Cornell Legal Information Institute: Rodriguez v. United States

Cornell Legal Information Institute: United States v. Windsor

 Cornell Legal Information Institute: Lawrence v. Texas

JUSTIA: Hodgson v. Minnesota

Cornell Legal Information Institute: Planned Parenthood of Southeastern Pennsylvania v. Casey

Secondary

Slate: Antonin Scalia Will Be Remembered As One of the Greats

Yahoo! News: Supreme Court Justice Antonin Scalia Found Dead in Texas

Grassfire: Remembering a Titan: The Legacy of Justice Antonin Scalia

 Cornell Legal Information Institute: Bush v. Gore

Atlanta Journal-Constitution: Antonin Scalia: 5 of His Most Famous Decisions

Cornell Legal Information Institute: Planned Parenthood of Southeastern Pennsylvania v. Casey

 Twitter: Ted Cruz

Charters of Freedom: The United States Constitution

Think Progress: It’s a “Conflict of Interest” for Obama to Nominate a Supreme Court Justice

Slate: Could Justice Antonin Scalia’s Death Lead to a Constitutional Crisis?

NDTV: Trump Calls for ‘Delay, Delay, Delay’ on Scalia Successor”

The New York Times: Hillary Clinton Calls Mitch McConnell’s Stance on Supreme Court Nomination ‘Disappointing’

Slate: Obama’s Supreme Court Shortlist

The New York Times: Supreme Court Nominees Considered in Election Year are Usually Confirmed

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

The post What Does Antonin Scalia’s Death Mean for the Supreme Court? appeared first on Law Street.

When the topic of prostitution comes up in conversation, most typically do not consider it a potential career option. Instead, we tend to think of prostitutes as young girls who are exploited and forced into prostitution by older men. The victims and villains are clearly cast. This situation is all too common and many young women around the world– and yes, even here in the United States–are kept as sex slaves.

But there are also prostitutes who choose sex work as a profession: people, and not just women, who were not forced into becoming prostitutes but chose that as their career. And then there are people in the middle. People who were coerced into prostitution by economic circumstances but not outright force. Individuals who may want to leave but have no other options to fall back on and no social services to help them.

All three of these sets of circumstances need to be dealt with. Victims who have been enslaved, people who see prostitution as their vocation, and those in the middle. Policy initiatives and laws that attempt to deal with the sex trade need to come up with a way to address the needs of these three communities. Which policies provide the best supports for all three kinds of prostitution? Is there a way to eliminate abuse while empowering free choice?

Models for Prostitution

There are several different models to choose from in crafting legal and social policy to deal with prostitution. One method is to criminalize both the purchase and sale of sex. This approach is based on the notion that individuals on both sides of the issue are criminals and immoral actors. This view of prostitution, a Victorian morality model, is the least popular. People still often have a moral problem with prostitution but generally view the relationship as one of exploitation, rejecting the view that a prostitute is just as morally guilty as a pimp.

The more popular view of prostitution is that the purchaser and the facilitator (typically called a trafficker or a pimp) are the criminals and the person being sold for sex is the victim. This innocent victim model is the view that underlies efforts to either partially or completely decriminalize prostitution while promoting “end demand” initiatives. Those who hold this view want facilitators and purchasers to be punished in a variety of ways but would not punish prostitutes themselves.

This view is encapsulated by the following clip of a “20/20” documentary on prostitution. The prostitutes interviewed are portrayed as women who were victimized and ones we should be sympathetic toward.

The third model of prostitution is one that acknowledges the existence of non-victim prostitutes, an entrepreneur model, which therefore advocates for the legalization of prostitution. This model is the most controversial because it would place prostitution on the same moral footing as other “vice” crimes, such as gambling. This would mean viewing it as something we may not personally like, but isn’t quite immoral enough to justify banning entirely. The moral stigma against prostitution is so heavily ingrained in our culture that most people reject the argument like, ‘it’s okay, it’s just like cigarettes really,’ on their face. But, the argument that prostitution isn’t as morally bad as cigarettes would not get much traction either.

Models for Policy

Recent efforts have been made in the United States to decriminalize prostitution and to push new “end demand” initiatives. Most of these efforts are actually efforts to decriminalize the sale of sex, as was done in Sweden, but keep trafficking or purchasing as punishable offenses. “End demand” initiatives seek to increase the penalties for clients who buy sex in an effort to make its purchase so costly and difficult that clients stop engaging in it. The hope is if clients do not feel that they can safely purchase sex, the industry will starve. As the demand for these services decreases, the incentive for traffickers and pimps to exploit sex workers will also dissipate.

End demand policies use a variety of instruments to make purchasing sex more difficult or costly. Fines, jail time, rehabilitation for solicitors, and good old-fashioned shaming like publishing offenders names in newspapers have all been used. But there isn’t any clear and convincing evidence that these methods actually do reduce the demand for sex work. On the contrary, there is some evidence that it may be making conditions for sex workers worse. While ending demand may free a sex worker from fear of prosecution, it keeps the pressure on clients, which may actually drive the market for sex even further into the shadows.

In Illinois, advocates of these initiatives, such as the Chicago Alliance Against Sexual Exploitation, go further in their attempts to end the demand for prostitution by trying to instill in young men the belief that buying sex is wrong. These campaigns are part of a larger sex-education plan that seeks to make commercial sex stigmatic not only for the prostitute but for potential clients as well. Legal changes are an important component, but cultural changes are also emphasized.

The biggest criticism of these efforts is that they do not help sex workers. Making it more difficult for clients to purchase sex not only affects the buyer but also the seller. One drawback for the sex worker is less time and transparency to negotiate. Because the rationale behind these policies is based on a model of prostitution involving a pimp-victim relationship, the end demand efforts don’t want to facilitate better discussions between clients and prostitutes. Some sex workers argue that these laws make their conditions less safe.

The other option is to legalize prostitution entirely. The following interview with Maggie McNeill, author of the blog The Honest Courtesan, does an excellent job of summarizing the viewpoint of those who argue that some voluntarily engage in prostitution and think it should be legalized.

The argument in favor of legalizing prostitution is best viewed as an argument in favor of the freedom to contract. It removes the moral stigma from prostitution found in both the Victorian and the end demand models and replaces them with a model of prostitution that includes those who freely choose it as a career. The entrepreneur model would argue that if a person wants to sell a sex act they should be free to do so–just as they are free to sell other personal services. There is also evidence in places where prostitution was legalized, as we saw in Rhode Island from 2003 to 2009, that the conditions for sex workers improve and violent crime is reduced.

This view does not deny that there are people, particularly women and children, who are enslaved as prostitutes. There are significant issues with the rape and abuse of prostitutes globally and in the United States, but supporters of the entrepreneurial model argue that the legal framework for combatting these abuses already exists. For example, to form a contract to commission a piece of artwork the purchaser and the buyer both need to be able to consent. Those who can’t consent because of age or mental incapacity can’t form that contract for art. Similarly, they wouldn’t be able to form that contract to sell or buy sex.

But for those concerned about violence and exploitation, to say that contract laws are enough of a tool to protect children from rape and trauma is insufficient. In fact, the most compelling criticism of this approach is that it does not do enough to combat violence. Other approaches may over-correct by disallowing voluntary prostitution, but that may be a better alternative for those whose primary goal is to end sexual violence.

The Murky Middle

There is perhaps a middle ground between the view of prostitution as pure victimhood and prostitution as the empowered entrepreneur. It’s a model that acknowledges the murky middle in which people become sex workers out of economic necessity, not through enslavement, but who may still need additional protections that are not present in other service industries should also be explored.

In contract law, a contract that is entered into because the defendant coerced the plaintiff with the threat of economic harm can be voided under the doctrine of “economic duress.” It’s a form duress that isn’t quite duress, yet may still be grounds to void a contract. However, it isn’t a very popular doctrine because it is so vague.

The court can grant relief to the plaintiff if they can show evidence of coercion or intimidation. This is not saying that the person is incapable of entering into any contract or that they would always be the victim in a contractual exchange. Rather, it merely acknowledges that in this particular contract his or her consent was not freely given and some restitution should be made.

Similarly, a middle-ground approach would acknowledge that there are contracts for sex that are entered into where both parties provide full consent. Those contracts, like the vast majority of contracts that we engage in every day with varying degrees of formality, would not need to be challenged. They may need to be regulated or taxed, like any other business, but they are not inherently void because of their subject matter.

This approach would also acknowledge that many of these contracts may be the product of coercion. In those cases, legal remedies to prosecute crimes such as rape, kidnapping, and theft should be employed. If they aren’t yet tough enough to bring violent criminals to justice, or not written in such a way to include crimes against sex workers, then they should be strengthened. Societal remedies and safety nets also need to be expanded so that sex workers who were victims of crimes can get some help, and so those who are at risk of becoming the victims of sexual slavery are prevented from becoming victims. Any change in policy, whatever the moral model it is based on, needs to include more tools for law enforcement to combat sex slavery. But supporting a vigorous effort to punish traffickers and slave traders isn’t tied to one set of policies for prostitution.

A great example of a combination approach to prostitution is how New Zealand treated the issue in 2003. According to the New Zealand’s Prostitute Collective, the sex workers of New Zealand gave input on the new laws in a push to reform local laws and policies. The results are a mixed bag of protections for sex workers, which also presuppose that there is a unique ethical concern with selling sex. For example, a sex worker cannot be compelled to have sex with a particular client and cannot have pay reduced for refusing sex with a particular client.

The law also adds in protections for sex workers under the age of 18 while borrowing from the end demand legislation ethos. It is a criminal offense for a manager or brothel owner to hire someone under the age of 18 for sex, or to pay for their services as a client. But it isn’t illegal to sell sex if you are under 18, meaning that punishment rests solely on the purchasers and traffickers.

Conclusion

The debate over how to deal with prostitution is an ongoing policy problem for everyone concerned about human trafficking. It also is an example of how moral sentiments and the way they can clash with modern interpretations of personal freedom can impact policy decisions.

Our culture makes intense moral judgments about sex workers. When we refer to someone as a “whore” it usually is not a comment on that person’s actual profession but meant as an insult. These moral judgments are unlikely to change in the near future and certainly won’t change just because a law or policy changes. But changes in policy can have a profound impact on the lives and safety of our citizens as evidenced by the dramatic change in the number of rapes in Rhode Island when prostitution was accidentally legalized. Whether they represent a true reduction in violence or a shifting of violence from a non-paid victim to a paid one is still debated. But if the goal is to craft a policy that will reduce violent crime and end sexual slavery then these various methods of doing so need to be debated on their practical merits as well as their moral implications.

Resources

Law Street Media: Prostitution: Should It Be Legalized or Criminalized?

BAYSWAN: Initiatives to “End Demand” For Prostitution Harm Women And Undermine Service Programs

GAATW: Moving Beyond Supply and Demand Catchphrases

CAASE: End Demand Illinois 

The Stranger: Sex Workers Write Open Letters To Law Makers Over End Demand Bills

The Honest Courtesan

CATW International: Ending The Demand

Hughes, Hubbard, and Reed: The Economic Duress Doctrine- A U.S. Perspective

Cato Unbound: Perverse Incentives: Sex Work And The Law

The New York Times: A Misguided Moral Crusade

The Washington Post: When Rhode Island Accidentally Legalized Prostitution Rape Decreased Sharply

The Huffington Post: 9 Things You Did Not Know About American Prostitution

The New Zealand’s Prostitute Collective: The Prostitution Reform Act 2003

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Prostitution: Should The “World’s Oldest Profession” Be a Profession? appeared first on Law Street.

On January 25, 2016, four years after the major shift that Miller v. Alabama created in juvenile law, the Supreme Court did it again. In a 6-3 decision in Montgomery v. Louisiana, SCOTUS greatly impacted the landscape of juvenile law along with the lives of hundreds of individuals sentenced to a lifetime of prison as young people. The court ruled that Miller retroactively gives juvenile offenders the ability to show that they are “not beyond rehabilitation to become a law-abiding individual” at the time of sentencing.

The much-anticipated present change in juvenile law altered the landscape of the firm stance taken in Miller on June 25, 2012 pertaining to the incarceration of juvenile offenders. At that time, SCOTUS held that sentencing a juvenile homicide offender to life in prison without the possibility of parole was in violation of the Eighth Amendment’s Cruel and Unusual Punishment Clause. The Court’s stance in Miller rounded out a trio of Supreme Court decisions setting up key sentencing protections for juvenile offenders, the first decision was Roper v. Simmons in 2005. In Roper, the Court held that the application of capital punishment and the death penalty was a violation of the Eighth Amendment as applied to juvenile sentencing. Graham v. Florida, decided in 2010, protected juveniles convicted of non-homicidal offenses from being sentenced to life in prison without the possibility of parole under the Eighth Amendment. Continuing its protective trend under the umbrella of the Eighth Amendment, SCOTUS extended the protection identified in Graham to juvenile homicide offenders in Miller.

Read on to learn more about the Miller decision, the changes the Court made on January 25, 2016 in Montgomery v. Louisiana, and what is in store for juvenile offenders sentenced to life without parole prior to June 25, 2012.

A Tale of Tried Teens: Miller v. Alabama

In November 1999, a 14-year-old Kuntrell Jackson (Teen #1) decided to accompany two friends to rob a video store. On the way to the store, Jackson learned that one of his friends had concealed and brought with him a sawed off shot gun in his coat sleeve. Jackson made the decision to stay outside of the store when his friends went in. Ultimately, the store clerk refused to give the young boys the money they demanded and she was shot and killed.

Under Arkansas law, 14-year-old Jackson was charged as an adult for capital felony murder and aggravated robbery. He was convicted of both crimes. A motion was filed to transfer the case to juvenile court, but was subsequently denied by the court and affirmed on appeal. Further, a habeas corpus petition was filed on his behalf after the Roper decision, but was dismissed. While the ruling was on appeal, SCOTUS made the Graham decision. The Arkansas Supreme Court affirmed the dismissal based on both Roper and Graham.

Subsequently, 14-year-old Evan Miller (Teen #2), a troubled young boy bouncing in and out of foster homes who had attempted suicide four times already, was about to have his life changed. Miller and his friend followed Cole Cannon, a drug dealer, to his trailer where they smoked marijuana and played drinking games. When Cannon passed out, the boys stole his wallet and took out $300 to split, but Cannon woke up and a fight ensued. Miller struck Cannon repeatedly with a baseball bat. The boys came back later and lit the trailer on fire, ultimately killing Cannon. Pursuant to Alabama law, Miller had to be charged as a juvenile, but the District Attorney was granted a transfer to adult court. Miller was charged and convicted of murder in the course of arson, which carries a mandatory minimum of life without parole. The Alabama Court of Criminal Appeals confirmed the sentence and the Alabama Supreme Court denied review.

The Supreme Court of the United States granted certiorari and agreed to review both cases together, as one.

In its rationalization, the Court immediately established that children are “constitutionally different from adults for purposes of sentencing” in the sense that they have diminished culpability and have a greater capacity for reform in the future. Further, the Court emphasized key points from Roper and Graham, identifying that children lack maturity and appreciation for responsibility leading to potential reckless behavior and are more vulnerable and impressionable by negative influences. Therefore, a fundamental difference exists when analyzing adult culpability for sentencing purposes and children. For Eighth Amendment purposes, the Court viewed age as a relevant factor for sentencing.

The Court ultimately held that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.”

Montgomery v. Louisiana

Now, for the case that was just decided in 2016, we need to flash back to 1963 when 17-year-old Henry Montgomery killed a deputy sheriff in East Baton Rouge, Louisiana. Montgomery was found guilty and sentenced to death. Shortly thereafter, the Louisiana Supreme Court reversed his conviction finding that the public nature of the trial and public prejudice prevented Montgomery from having a fair trial.

The case was retried and the jury returned a verdict of “guilty without capital punishment,” which required the sentence to be life without the possibility of parole.

Flash forward to when Henry Montgomery is 69-years-old. He has spent the last 53 years in custody and behind bars, even facing the emotional journey that comes with being sentenced to death at one point. Up until 2012, Henry Montgomery was prepared to die in prison until a little bit of hope cloaked in the form of Miller v. Alabama surfaced to light.

Most relevant to Montgomery’s case is the fact that the Miller decision noted the importance of youth and age on an offense: “by making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, mandatory life without parole poses too great a risk of disproportionate punishment.” Thus, the disconnect between a juvenile offense and the harsh punishments of life in prison without the opportunity for parole created cruel and excessive penalties for individuals unable to fully understand the culpability of their actions.

Following the Miller decision, Montgomery filed a motion for collateral review on the basis that life without parole for a juvenile offender constituted an illegal sentence. The trial court denied Montgomery’s motion on the ground that the Miller Court did not make a decision that was to be applied retroactively–or applied to cases that were conducted and offenders that had received final sentences prior to June 25, 2012. The Louisiana Supreme Court subsequently denied Montgomery’s application for a supervisory writ.

Upon review by the Supreme Court, they held that Miller was, in fact, retroactive, stating “like other substantive rules, Miller is retroactive because it necessarily carr[ies] a significant risk that a defendant – here, the vast majority of juvenile offenders – faces a punishment that the law cannot impose upon him.” The Court recognized the grave risk in disproportionate sentencing for which detention may be in violation of the Constitution on January 25, 2016.

How Does This Affect Other Juvenile Homicide Offenders?

The Supreme Court’s ruling on January 25, 2016 opened the door to hundreds of miracles. While it did not give all juveniles sentenced to prison for life without parole prior to June 25, 2012 a free pass, it gave them the right to re-sentencing hearings, if they are able to provide proof of rehabilitation, change, and evidence of good behavior during their time behind bars. It will be up to the states to review the case and make a decision as to whether the individual may be released or resentenced under the new Supreme Court holding.

This ruling was considered a win for juvenile law advocates who have been fighting to give a second chance at life to those individuals that entered prison as young teens and have only know life as an incarcerated person for twenty, thirty, even fifty years. They were overjoyed at the victory in the form of applicable retroactivity.

However, it does not come without criticism. Since the Supreme Court reviewed the case from a state court and took a moment to note that Montgomery has, in fact, turned his life around in the last 53 years, they did not and could not rule on that basis. The state controls his release. While Montgomery is likely to be released or in some way benefit from this case outcome, other juvenile inmates could be in trouble if Louisiana amends its state laws regarding post-conviction relief. Louisiana could flex its state muscle and amend its laws to prohibit post-conviction review of cases based on federal, rather than state law. In that case, any individual within that state that was sentenced to life in prison without parole as a juvenile would not have access to a resentencing hearing. Currently, Pennsylvania, Louisiana, and Michigan have the highest amount of juveniles sentences to life without parole. Only time will tell what action Louisiana and other states with similar laws will opt to do.

Resources

Primary

Supreme Court of the United States: Montgomery v. Louisiana

Additional

Cornell University Law School – Legal Information Institute: Miller v. Alabama 

Cornell University Law School – Legal Information Institute: Romper v. Simmons

Cornell University Law School – Legal Information Institute: Graham v. Florida

SCOTUSblog: Further Limit on Life Sentences for Youthful Offenders

 MLive: The Supreme Court Just Gave Juvenile Lifers a Shot at Parole

 Juvenile Law Center: Montgomery v. Louisiana

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

The post Juveniles with Life Sentences: Will They Get Second Chances Thanks to SCOTUS? appeared first on Law Street.

Are you a Netflix user or a fan of the podcast “Serial?” If so, then you’ve definitely heard of the Innocence Project–it’s been a part of Steven Avery’s story in “Making a Murderer,” and the Innocence Project has been investigating Adnan Syed’s case in “Serial” as well. The Innocence Project is a non-profit organization that strives to find the truth when prisoners continually maintain their innocence after they’ve been incarcerated. In the last several decades, it has become all too clear that the American justice system isn’t without its flaws, which sometimes leads to wrongful convictions. It is these wrongful convictions that the Innocence Project strives to fight in hope that they will lead to law revisions in each state. But what exactly is the Innocence Project? Read on to find learn more.

How Did the Innocence Project Get Started?

The Innocence Project was founded in 1992 at the Benjamin N. Cardozo School of Law at Yeshiva University by Barry Scheck and Peter Neufeld as a legal clinic, but later turned into a nationwide project. It was founded after the release of a landmark study by the US Department of Justice and the US Senate that found that 70 percent of wrongful convictions are because of eyewitness misidentification of perpetrators. This study was revised in 1999 to become the manual for law enforcement regarding eyewitness testimony. The Innocence Project became a 501(c)(3) non-profit in 2003 after maintaining its role as a legal clinic at Cardozo for more than a decade.

Both Scheck and Neufeld were law professors at Cardozo and also worked as defense attorneys when they founded the Innocence Project. They are known nationwide as being part of the O.J. Simpson defense team who fought his double homicide charge in 1995. Notably, Simpson was found not guilty in that case in one of the most infamous invocations of reasonable doubt in US history; his defense team, including Scheck and Neufeld, have achieved notoriety in the years since.

Misidentification by Eyewitnesses

Since the original study in the early 1990s on the tendency for eyewitnesses to misidentify perpetrators of crimes, many more studies have been released that continue to corroborate those facts. Eyewitnesses have become notoriously unreliable. They often remember small details but not the big picture, and they are beginning to be treated as less valuable than hard forensic evidence in court cases. This is a big win for the Innocence Project, which has been trying to reform laws in each US state since its inception.

There are two ways that the Innocence Project is trying to reform laws to help prevent wrongful convictions. First, it is trying to make sure that DNA testing is accessible to all sectors of law enforcement, no matter how remote or small. This will help take the burden off of eyewitness testimony in trials. Second, by compensating the wrongfully convicted after they are freed, the justice system pays for its mistake. This should make law enforcement and the court system more interested in convicting the guilty party and should prevent more wrongful convictions in the future.

Looking to the Past

Criminal Justice Degrees Guide compiled a list of ten infamous wrongful executions that could have been prevented by the Innocence Project. The list includes Claude Jones, who was executed for killing a liquor store owner based on the testimony of his friends and a hair found at the scene. The hair was later proven to have been the owner’s—not Jones’—by DNA evidence after Jones had already been executed. Another sad example is the case of Cameron Todd Willingham, who was executed in 2004 for killing his three young daughters in a house fire. Arson investigators testified that the fire was intentional, even though Willingham appealed for years. Five years after Willingham was executed, it was determined that the arson investigators used flawed science in their investigation; this could mean that Willingham may be the first officially declared wrongful execution in the state of Texas. These are just two of many sad cases of wrongful executions, which was part of the drive to form the Innocence Project in the first place.

What Methods are Used to Exonerate Prisoners?

In most cases, prisoners are exonerated based on DNA evidence. The majority of the cases that are taken on by the Innocence Project had convictions that occurred before DNA was regularly tested. Therefore, the lawyers affiliated with the Innocence Project generally move to have evidence looked at again so that anything available can be tested for DNA that may have been overlooked originally. An interesting and important point to remember is that, as long as it is not contaminated, DNA evidence can be preserved for decades. This is especially true with blood and other bodily secretions and hair follicles.

Other forensic evidence may be used to exonerate prisoners as well. In one case, blood type should have proved that the convicted person couldn’t have done it from the beginning; he was eventually exonerated on that evidence. In other cases, the real perpetrator was caught and confessed, exonerating the falsely imprisoned. In one final example, a judge found that a prosecutor willingly withheld evidence of innocence and overturned a prior conviction.

Success Stories

So far, there have been 337 post-conviction DNA exonerations in the United States, along with seven cases where falsely convicted prisoners were exonerated by other means. In many of the cases, the convicted person spent more than a decade behind bars before DNA evidence or other evidence was able to exonerate him. Some even spent time on death row.

Oddee tallied ten of the worst wrongful conviction cases, and it’s easy to see how lawyers can become very passionate about the Innocence Project. William Dillon, for instance, served 27 years for murder, but was released when DNA evidence proved he wasn’t the killer. Kirk Bloodsworth spent nine years in prison—two of those on death row—before DNA testing excluded him. Robert Dewey was freed from a life without parole sentence because of a blood stain on his shirt that supposedly linked him to a murder; 17 years later, that blood was tested for DNA and it was concluded that it was not the victim’s blood. These are only three examples, but they show how the story usually goes when the Innocence Project is successful.

How Does the Innocence Project Work?

The Innocence Project works in a fairly set pattern each time it gets involved in a post-conviction case. Often, the convicted person or the person’s family reaches out to the Innocence Project members, asking them to take a look at the person’s case; other times, the Innocence Project independently hears of a case and offers to take it on. Once the Innocence Project takes on a case, its lawyers work tirelessly to get the evidence reviewed again and to get the case back in front of a judge for reassessment. This process is rarely quick—more often than not, it takes years for the Innocence Project to prevail in a case. There are two end goals that the Innocence Project is always working toward: freeing the wrongly convicted person, and reforming laws that prevent justice in each state where they work.

In concurrence with its work to free the wrongfully convicted, the Innocence Project also continually works toward reforming the justice system in order to prevent future wrongful convictions. This includes strategic litigation, where lawyers on the Innocence Project team work through the legal system to bring attention to the causes of wrongful conviction. Once the causes are made known, the Strategic Litigation team usually works with the Innocence Project’s Policy department to start petitioning to change laws in order to prevent future injustice in the court system.

The Innocence Project in the News

So, why have you been hearing of the Innocence Project in pop culture recently? There are two likely reasons: “Serial,” the ultra-popular podcast from NPR, and “Making a Murderer,” Netflix’s sensational documentary that was released in December 2015.

In the last episode of the first season of “Serial,” Sarah Koenig talks to Deirdre Enright, who leads the Innocence Project clinic at the University of Virginia Law School. Enright said that her students have opened an investigation into Adnan Syed’s conviction, and they have identified another potential suspect. This is entirely separate of the appeals process that Syed is currently going through in the state of Maryland, but will definitely help his case should he get a new trial.

The Innocence Project has been even more prominently featured in the news in the case of Steven Avery, the man who is the subject of “Making a Murderer.” Avery is actually featured on the Innocence Project’s website, because he is a success story for them—he was exonerated after being convicted of the attack and rape of a jogger in 1985. He spent 18 years in prison for that crime before DNA evidence freed him—and two years later, he was back in court, this time facing murder charges in the death of Teresa Halbach, a photographer who was last seen on Avery’s property. He and his nephew have been in prison for that crime for the last 9 years, and the Innocence Project is again involved in Avery’s case.

The Medill Justice Project at Northwestern University–formerly the Medill Innocence Project–has also been in the news in the last year, but for a completely different reason. In February 2015, a man was freed from prison after serving 15 years for a crime he did not commit–but he alleges that he was put in prison after a coerced confession to one of the professors who led the Medill Innocence Project. When he was imprisoned, another man was freed, and it is postulated that the original man was the actually perpetrator. This was very unfortunate press for the Innocence Project, but the program has since been under reform. The Medill Justice Project is now being led by a former investigative reporter for the Washington Post, and has continued to do good work despite the lawsuit.

Conclusion

In the two-plus decades that the Innocence Project has been working toward freeing the wrongfully convicted, it has grown and had many success stories. What started as a small law school clinic in New York, is now a nationwide non-profit with 344 success stories. Forensic evidence has become standard in court cases now, but there are still many prisoners who were convicted based on more circumstantial evidence, like eyewitness testimony. Humans make mistakes, and that has become apparent as the Innocence Project continues to free wrongfully convicted criminals throughout the country. The greater goal now, after two decades of working on individual cases, is to reform laws in each state that allow eyewitness testimony to put away people for crimes in the first place.

Resources

Primary

US Department of Justice: Eyewitness Evidence: A Guide for Law Enforcement

State of Washington: Eyewitness Identification Procedures: Legal and Practical Aspects

The Justice Project: Eyewitness Identification: A Policy Review

Additional

The Atlantic: Making a Murderer: An American Horror Story

Virginia Lawyer: Behavioral Science Research Leads to Department of Justice Guidelines for Eyewitness Evidence

Oddee: 10 of the Worst Wrongful Imprisonment Cases

Criminal Justice Degrees Guide: 10 Infamous Cases of Wrongful Execution

Time: The Innocence Project Tells Serial Fans What Might Happen Next

Huffington Post: 7 Terrifying Things ‘Making a Murderer’ Illustrates About American Justice

The Washington Post: Where Do the Cases at the Center of Netflix’s ‘Making a Murderer’ Stand Now?

Columbia Journalism Review: How the Medill Justice Project has Thrived Following Controversy

The Daily Beast: The Innocence Project May Have Framed a Man for a Crime He Didn’t Commit

Amanda Gernentz Hanson

Amanda Gernentz Hanson is a Minnesota native living in Austin, Texas. She holds a Bachelor’s degree in Chemistry from Hope College and a Master’s degree in Technical Communication from Minnesota State University, where her final project discussed intellectual property issues in freelancing and blogging. Amanda is an instructional designer full time, a freelance writer part time, and a nerd always. Contact Amanda at staff@LawStreetMedia.com.

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President Barack Obama is set to face the gauntlet as the Supreme Court gears up to hear a case that challenges the President’s use of executive power, has the potential to wreck havoc on the 2016 Presidential election, and may go beyond judicial power by granting states more rights and control than the national government on a notoriously federally controlled area of law and politics–immigration. Twenty-six states are challenging the President’s executive actions relating to immigration implementations made in 2014 as an abuse of power and an attempt to circumvent Capitol Hill on policy making.

To date, the case is scheduled to be resolved by the court in June 2016 as the Supreme Court issued that it would review the case, thereby granting the President the authority to execute the programs prior to leaving office, should he be victorious. Read on to learn more about the executive actions in question, the procedural posture and legal history of the case, and what it all could mean for U.S. citizens and aliens in the future.

DAPA and DACA: The Troublesome Two

On November 20, 2014, an executive order was issued expanding the rights of individuals within the Deferred Action for Childhood Arrivals (DACA) program and introduced the creation of Deferred Action for Parents of Americans (DAPA).

DACA, a program created in 2012, allows undocumented young people who came to the U.S. as children relief from deportation so long as specific criteria are met. These criteria include: 1) must be under 31 years of age as of June 15, 2012; 2) must have entered the U.S. under the age of 16; 3) must show continuous residence in the U.S. from June 15, 2007 until the present; 4) entered the U.S. without inspection (EWI) or fell out of a lawful visa status before June 15, 2012; 5) were physically present in the U.S. when applying for consideration of deferred action; 6) are currently in school, have graduated from high school, have obtained a GED, or have been honorably discharged from the Coast Guard or armed forces; 7) have not been convicted of a felony offense, a significant misdemeanor, or more than three misdemeanors; and 8) do not pose a threat to national security or public safety.

Initially, DACA was available for a period of two years at a time–meaning that individuals were only granted temporary relief for two years before they had to re-apply and be approved by the government again. DACA also included a work authorization for those approved, but the executive action of 2014 made it and the work authorization renewable in three-year increments. Additionally, the requirement that the individual be under 31 years old as of June 15, 2012 or now no longer applies. The new DACA provisions do not discriminate against those currently over 31 years old. Further, the eligibility cut-off date was moved from June 15, 2007 to January 1, 2010. Anyone applying must show physical presence in the U.S. prior to January 1, 2010 and during the time of application.

DAPA, unlike DACA, did not have a predecessor. Under DAPA, individuals that have children who are U.S. citizens or lawful permanent residents (LPRs) may obtain relief from removal should they meet the following criteria: 1) as of November 20, 2014, have a son or daughter who is a citizen or LPR; 2) have continuously resided in the U.S. since or before January 1, 2010; 3) are physically present in the U.S. as of November 20, 2014 and during their application for consideration; 4) have no lawful status as of November 20, 2014; 5) are not an enforcement priority; and 5) present no additional factors that would deem the granting of their application inappropriate.

Deferred action is an administrative mechanism used by the U.S. government to de-prioritize individual cases for removal for “humanitarian reasons, administrative convenience, or in the interest of the Department’s overall enforcement mission.” It is a way for the government to categorize the urgency with which individuals be removed from the country. Generally speaking, deferred action carries great discretion. It can be terminated at any point should the U.S. Department of Homeland Security deem termination appropriate and necessary. Furthermore, receiving DACA or DAPA does not provide legal status, a pathway to citizenship, or a pathway to obtain a green card, but rather permits for an individual to be legally present within the U.S. for a specified period of time. In order to be a valid permission, deferred action applications must be considered on a case-by-case basis and do not apply as all-inclusive or sweeping legal policies. An application process is required and permission must be granted for an individual to continue to stay within the U.S.

Substantive rights, immigration status, and pathways to citizenship are under the control of Congress. Only Congress can confer such rights and policies upon individuals within the confines of the U.S. However, the Executive Branch has the authority to set forth policies under prosecutorial discretion and deferred action so long as they fall within the framework of existing law.

The 26 states named in the lawsuit are greatly dissatisfied by the way that President Obama has taken to resolving the many pitfalls of current immigration policy and justice. A major point of contention for the states is that the President allegedly worked to circumvent Congressional authority and undermined the importance of the notice-and-comment process pursuant to administrative law. Notice-and-comment is an informal rule-making process, codified in the Administrative Procedure Act (APA) under § 553. It requires the agency proposing the rule to publish its proposal in the Federal Register and grant opponents or supporters of the proposed rule to comment, amend, present data and evidence for or against, and generally speaking, participate in the development of a newly proposed rule.

Additionally, while immigration is an issue controlled by federal law, the states fear that the changes made to federal immigration laws will place a great burden on the states to change their laws and be forced to provide services they are unable or unwilling to provide to individuals lacking legal status. Specifically, some states worry that the quasi-legal status and work authorizations will require the states to provide “state-subsidized driver’s licenses and unemployment insurance.”

Image Courtesy Of [Nevele Otseog via Flickr]

History of Legal Action: The Procedural Posture

Shortly after President Obama’s executive action on November 20, 2014, the highly publicized Maricopa County Sheriff, Joe Arpaio, challenged the action on behalf of Arizona in a case called Arpaio v. Obama. Arpaio’s lawsuit was dismissed by the Washington, D.C. federal court and upheld unanimously by the D.C. Circuit Court of Appeals on August 14, 2015. That decision has not been appealed to the Supreme Court.

Following in Sheriff Arpaio’s footsteps, 17 states filed a lawsuit, with 9 states joining thereafter, challenging President Obama in Texas v. United States. The President held the support of 15 states and D.C., who filed “friend of the court” briefs on his behalf. Ultimately, the Texas federal court blocked President Obama’s initiatives on a procedural basis on February 16, 2015. U.S. District Court Judge Andrew Hanen found that Texas had standing, or legal capacity and authority, to sue and that the President did not comply with the requirements of the APA, particularly the requisite need for notice-and-comment. It rationalized that the changes enacted by President Obama were substantive rules rather than simple alterations to existing and general policy, which required a specific procedural process.

The Department of Justice subsequently appealed the lower court’s decision and argued the case in front of the Fifth Circuit Court of Appeals on July 10, 2015. In a split decision, the Fifth Circuit upheld the lower court’s ruling, 2-1. The majority decision, authored by Judge Jerry E. Smith, found that Texas did, in fact, have standing to sue and that the changes to policy would greatly increase state costs and burden the states with additional processes and services as required by the national law. While it recognized that judicial review was unavailable under the APA in matters pertaining to agency discretion, it noted that the changes made to DACA and DAPA required notice-and-comment rule-making, and therefore, were non-discretionary. Further, the court ruled on an issue unaddressed by the district court and found that the President’s interpretation of the Immigration and Nationality Act (INA) was misguided and inaccurate because it vested great authority to the Secretary of U.S. Department of Homeland Security. This indirectly re-classified the specified classifications of immigrants codified in the INA and those petitioning to enter, all in violation of the Act itself.

Judge Carolyn King of the Fifth Circuit delivered a blunt dissent, ultimately stating, “I have a firm and definite conviction that a mistake has been made.” Further, Judge King argued that the case should have been dismissed as it follows prosecutorial discretion and therefore, not subject to review by federal courts. In criticism of her colleagues, she penned that allowing states to dictate national policy, particularly in areas solely within federal control, would be a great intrusion to the long-standing separations between government and state. Judge King added that the President’s executive actions were matters of general policy not subject to notice-and-comment procedure and that the interpretation of law under the INA actually sought to further the Department of Homeland Security’s mission in “[e]stablishing national immigration enforcement policies and priorities.”

Critics of the decision, including Judge King herself, highlighted the fact that the expedited appeal was anything but, as the Fifth Circuit took a very long time to render an opinion, likely in an effort to place the case under review by the Supreme Court after the conclusion of President Obama’s term in office.

The Petition Filed by the Department of Justice

In a writ of certiorari petition filed on November 20, 2015, exactly one year from the President’s executive actions, the Department of Justice sought review of U.S. v. Texas by the Supreme Court. While the Court has yet to make a decision as to whether it will review the case or not, the petition outlined key elements of President Obama’s argument demanding for review of this extremely crucial issue.

The DOJ Claims Valid Authority for Action Over States

The Department of Justice highlighted that the authority to make any and all immigration laws and policies is vested in the federal government, particularly under the control of the Secretary of the Department of Homeland Security, who hold authority to establish regulations pertaining to removal and admissibility rules. The Department has broad discretion over enforcement of immigration laws and the ability to prioritize which offenses or conduct deems immediate removal and which groups are not the top priority of government funds allocated for removal and enforcement. While 11 million removable aliens are estimated to live in the United States, the Department can only remove approximately 4 percent of those individuals within a given year. Congress has granted the Department $1.6 billion to remove those convicted of deportable crimes, thereby committing to the Secretary’s discretion in handling these cases in the most efficient manner possible. Therefore, prioritizing is of utmost importance to best allocate funding.

Additionally, the Department emphasized that continued presence through deferred action does not violate any criminal laws, as removal and inadmissibility under immigration laws is civil in nature. Deferred action has been an “exercise in administrative discretion,” that can be revoked at any point in time. It does not offer any legal status to those that fall within its classification. What is offered under deferred action, however, is work authorization protecting such individuals from exploitation under U.S. labor laws, subjecting them to taxation, Social Security, and welfare payments, and providing them with a way to make ends meet so they do not become a burden on U.S. citizens and society. Only “qualified” aliens are entitled to public benefits provided by the state in which they reside, and individuals lawfully allowed to stay within the U.S. under deferred action status are not deemed “qualified,” therefore, they are not entitled to public benefits unless their state specifically provides those under its own laws.

The Sticking Points: Substantive Arguments Against the States

Deferred action has been utilized in a variety of ways to grant individuals lawful presence in the U.S. Examples include individuals who petitioned under the Violence Against Women Act of 1994 and individuals whose lawful family members were killed on September 11, 2001 or in combat were granted temporary relief from deportation under deferred action. Decisions made based on deferred action have legally and historically been barred from judicial review.

Key elements of the petition included the Secretary’s discretion in enforcing immigration laws under resource constraints, the historical utilization of deferred action and its revocability, the security and economic interests in paying fees and applying for work authorization, and the effect that the divided Court of Appeals decision could have on the States’ ability to “frustrate the federal government’s enforcement of the Nation’s immigration laws.”

The petition discussed the lack of standing or authority by the states to bring the lawsuit, stating that private parties lack any “judicially cognizable interest” in the enforcement of immigration laws that are not threatened by prosecution, nor do collateral consequences of federal immigration policy grant a state standing to bring suit. Further, the Department of Justice noted that even if the states were able to show standing to sue, they would have to identify injury resulting from the specified policy that affects it in an “individual way.” Such an expansive reading of state standing would open a door for many more federal-state disputes in the long run and give states far-reaching and independent authority to challenge federal laws with more regularity.

The government further argued that the states lack a valid claim under the Administrative Procedure Act, as the Act does not allow suit by every individual “suffering an injury in fact,” and strictly limits the scope of judicial review to those who are “adversely affected or aggrieved by agency action.” Additionally, the government noted that the agency’s discretion in deferred action is not reviewable by the courts as there is “no meaningful standard against which to judge the agency’s exercise of discretion.”

An entire section of the petition offered examples of the Secretary’s authority to implement deferred action without challenge due to the long-standing history and nation of this power. Ultimately, the Department of Justice pointed to the authority vested in the Secretary to implement the executive actions as lawful within the scope of his power. Finally, the petition outlines the reasoning for why the deferred action is not subject to notice-and-comment rule-making as required by the APA because the actions were “general statements of policy” exempt from such procedural requirements.

What Could It All Mean?

Should the Supreme Court uphold the Fifth Circuit’s decision, great authority would be vested onto the states over a historically federal issue, making it inexplicably difficult to pass any immigration laws on a national level. It would force millions of people, subject to removal but not removal priorities, to continue living in the U.S., working off the books or not working at all, potentially creating a burden on society in the long run. Further, it could ultimately punish the individuals that gained temporary lawful relief under the 2012 DACA provisions that have never been challenged by any of the 26 states in question. The decisions spanning over the last year could potentially invalidate the 2012 DACA actions as well.

While the importance of review is undoubtedly clear, from an administrative law aspect, a constitutional law aspect, as well as a separation of powers aspect, it is unclear exactly what the fruit of review will be. If history were any indication, President Obama would be victorious in his challenge. However, the lower courts have addressed key issues that fall squarely within the context of interpretation and interestingly added some of their own issues, which remain undecided by the district court. How the Supreme Court reads and interprets the statutes in question, as well as its analysis of the interworkings of several federal laws will be determinative for its decision. This may ultimately be a case about procedure and the process of implementation rather than power and constitutionality of law.

Resources

Primary

United States of America v. Texas: Writ of Certiorari

 U.S. Department of Homeland Security: Exercising Prosecutorial Discretion With Respect to Individuals Who Came to the United States as Children and With Respect to Certain Individuals Who are Parents of U.S. Citizens or Permanent Residents

Additional

Politico: Obama Administration Takes Immigration Battle to Supreme Court

Politico: SCOTUS Keeps Obama Immigration Case on Track For Ruling by Summer

Cornell University Law School – Legal Information Institute: 5 U.S. Code § 553 – Rule Making

Immigration Equality: Deferred Action for Childhood Arrivals

 The Atlantic: A Ruling Against the Obama Administration on Immigration

 The New York Times: Appeals Court Deals Blow to Obama’s Immigration Plans

American Immigration Council: Understanding the Legal Challenges to Executive Action

 National Public Radio (NPR): Supreme Court Agrees to Hear Case on Obama’s Immigration Actions

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

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The year 2015 will be marked by many advances for the transgender community, both in the media (hello Caitlyn Jenner) and in legislatures across the United States and the world. All in all, 2015 was a year when transgender rights came further into the forefront of our daily lives and vocabulary. But there was a dark side to 2015 as well. Somehow, even though trans rights were gaining ground, it was still the year with the most trans murders on record. Read on to learn about the transgender murder crisis in 2015.

Why Are Trans People Getting Murdered?

Many of the trans people who were murdered in 2015 were victims of hate crimes. Even worse, the majority were perpetrated against transgender women of color.

Hate crimes, specifically those against people identifying with a certain gender, have occurred for years. But these crimes came into the spotlight in 2009 when Congress passed the Matthew Shepard Act, which added gender identity to the list of possible motivations for hate crimes. The act also requires the FBI to track statistics on gender identity-motivated hate crimes, but those statistics rely on voluntary reporting from law enforcement agencies and many believe that they are grossly underestimated. These crimes may be undercounted because police officers may not report the murders of trans people as hate crimes–or treat these murders like hate crimes–because their gender is often misidentified.

Who are the victims?

Some of the victims, such as Mercedes Williamson and Keyshia Blige, were killed by strangers in the typical sense of a hate crime–people who didn’t want someone different, or outside of their norm, in their community. There is also a subset of these murders that were committed by loved ones. Around half of the transgender murders in 2015 were committed by people who knew their victims. Two examples include Yazmin Vash Payne, who was killed by her boyfriend after an argument, and Bri Golec, who was stabbed to death by her father.

How Many Trans Murders Were There in 2015?

According to the Human Rights campaign, there were at least 21 murders specifically of trans individuals in the United States in the first 10 months of 2015. But these are only the murders that were reported and identified by that group, and only includes part of the year. Other counts put that statistic higher, but the fact of the matter is that based on the available data, we do not know how many trans murders occured. Even then, the 21 identified by the Human Rights campaign marks a notable increase from previous years. In 2013, there were at least 19 murders of trans people and in 2014, there were at least 13.

The true number is almost certainly higher. There have been many articles in the last couple of months detailing the attacks and profiling the victims of these attacks, which flips the normal crime story on its head (since most crime stories talk only about the perpetrator rather than the victims). These profiles and articles were mainly released before November 20, which is the Transgender Day of Remembrance in the United States. There were also protests surrounding the Day of Remembrance where people lay in the streets, feigning death in order to draw attention to this seemingly invisible problem.

Official hate crime statistics from the FBI for the 2015 calendar year won’t be released until later in the year, but that only includes incidents identified as hate crimes and are widely regarded as an undercount of the actual number.

Why the FBI Stats are Lacking

According to the hate crime statistics released by the FBI last November for the 2014 calendar year, there were only 109 gender-identity motivated hate crimes, of which only 23 fit into the FBI’s violent crime category. However, the FBI’s hate crime numbers are thought to be considerably lower than the actual number of offenses. This is because the statistics are voluntarily submitted by law enforcement agencies, many of which reported zero hate crimes in 2014. The Human Rights Campaign even identified crimes that should have been considered hate crimes but were not appropriately reported. In fact, the FBI’s 2014 statistics indicate that of the 4,048 total hate crimes classified as “crimes against persons,” only four were murders, and that includes all potential bias motivations, not just gender identity.

While each jurisdiction has its own reasons for the differing data submissions to the FBI, problems with the statistics could be due to the fact that these crimes may look like accidents. Also, murders aren’t typically considered hate crimes when they are committed by a family member, friend, or partner. Police may also have trouble identifying victims as transgender in the first place, making it harder for data to be accurately gathered–many of the victims identified by the Human Rights Campaign weren’t identified as transgender by the police or media. For these reasons, among others, these murders aren’t being thought of or investigated as hate crimes and are not being reported to the FBI as such.

There is little that the FBI can do about this–it relies entirely on information provided by law enforcement across the country. So it doesn’t matter how many protests take place–as long as law enforcement doesn’t consider these murders to be hate crimes, they will not be included in the FBI’s statistical reports. However, this also provides a glimmer of hope for the trans and LGBTQ community at large. The number of crimes that are classified as hate crimes is getting larger each year, including the number of hate crimes motivated by a person’s gender identity. In fact, 2014’s number is triple the amount of reported hate crimes motivated by gender identity in 2013. The rate of murders against transgender people may not change that much from year-to-year, instead, they may be getting reported more regularly. Therefore, there is hope that the statistics that the FBI releases may be much closer to accurate in the future.

What Can Be Done?

There are several things that can be done to decrease the number of transgender murders in the future. The first is already underway–the FBI has begun keeping track of statistics for hate crimes involving gender identity. The FBI only started gathering statistics on gender identity motivated hate crimes five years ago. There is a lot of room for growth in how the FBI gathers the information for these statistics, but improvement has so far been made each year. Hopefully, these hate crime statistics will give the country–including law enforcement and legislators–an idea of what is happening in the United States and what else needs to be done to protect transgender people. Congress recently created a Transgender Equality Task Force to help identify issues that transgender people face, which according to advocates should include tracking incidents of violence.

Allies and education are other key ways to prevent the murders of transgender people in the future. When any marginalized group of people has allies on their side, it is easier to fight back. Allies, in this case, are people who do not identify as transgender but who support the causes important to transgender people, such as safe spaces and the legal right to be recognized as an individual’s identified gender. Education about what it is like to be transgender is another small thing that can go a long way. Both trans people and allies can work to educate people throughout the country, hopefully helping develop a broader sense of understanding of what it is like to be transgender and what kinds of rights transgender people are still fighting for.

A Look at the Numbers

There is some good news: trans support in the United States is increasing. In April 2015, the Human Rights Campaign noted that the number of people who say they know a transgender person is up 5 percent from the previous year, and 66 percent of those people look favorably on their transgender acquaintances. The percentage of people who were polled by YouGov as saying that they believe being transgender is immoral is down to 31 percent. While it’s still unclear what the actual transgender population is in the United States–FiveThirtyEight postulates that many of the people who claim to not know any transgender people likely do–each person’s choice on how broadly to share their personal life differs.

All of these statistics show a changing tide in the fight for transgender rights, and also show that younger generations are even more likely to support transgender rights and fight for an end to violence against the trans population.

Conclusion

In 2015, there were at least 21 transgender women who were the victims of murders across the United States. 2015 also marked the highest number of murders against transgender people on record. These murders were committed by both strangers and loved ones of the victims, and they have been classified as hate crimes by activists and by the people who were close to the victims. But until law enforcement consistently reports on the set of criteria that would classify transgender murders as hate crimes, the statistics that the FBI is required to release each year will fall short of being accurate. While we do not yet have reliable statistics about murders and hate crimes against transgender people, as awareness increases that will likely improve. While there are many ways to support transgender people–including activism–the most effective way to shrink the number of murders in the future is to compile and release accurate statistics that would show these crimes for what they are. Until then, these sad and gruesome crimes will continue to occur, and transgender people will continue to be victimized.

Resources

Primary

The Federal Bureau of Investigation: FBI Releases 2014 Hate Crimes Statistics

The Federal Bureau of Investigation: Matthew Shepard/James Byrd Jr., Hate Crimes Prevention Act of 2009 Brochure

Additional

The New York Times: Obama Calls for End to ‘Conversion’ Therapies for Gay and Transgender Youth

Vanity Fair: Caitlyn Jenner: The Full Story

Rolling Stone: The 5 Best and Worst Trans Moments of 2015

Slate: Five Things Trans People Teach Us All About Ourselves

Huffington Post: Lives Guided By Fear: In Honor of the Transgender Day of Remembrance

Human Rights Campaign: Addressing Anti-Transgender Violence: Exploring Realities, Challenges, and Solutions for Policymakers and Community Advocates

Huffington Post: What Does Transgender Day of Remembrance Mean to the Trans Community?

Broadly: ‘He’s Not Done Killing Her’: Why So Many Trans Women Were Murdered in 2015

Broadly: A Crisis of Violence: Transgender Murders Increased 84% This Year

Vice: Trans Women of Color Face an Epidemic of Violence and Murder

Fusion: 20 Trans People Were Murdered This Year. This is What Happened.

Mother Jones: It’s Incredibly Scary to Be a Transgender Woman of Color Right Now

Time: Why Transgender People Are Being Murdered at a Historic Rate

Rolling Stone: More Trans People Have Been Killed in 2015 Than Ever Before

Crime Museum: History of Hate Crime

The Williams Institute: Suicide Attempts Among Transgender and Gender Non-Conforming Adults

USA Today: Transgender People Face an Alarmingly High Risk of Suicide

Think Progress: As 2015 Sees a Record Number of Documented Transgender Murders, a Glimmer of Hope

Human Rights Campaign: Survey Shows Striking Increase in Americans Who Know and Support Transgender People

YouGov: One-third Think it is Morally Wrong to be Transgender

FiveThirtyEight: Most Americans Say They Don’t Know a Transgender Person – But Many of Them Probably Do

Huffington Post: The Kids Are All Right with Transgender Rights

Amanda Gernentz Hanson

Amanda Gernentz Hanson is a Minnesota native living in Austin, Texas. She holds a Bachelor’s degree in Chemistry from Hope College and a Master’s degree in Technical Communication from Minnesota State University, where her final project discussed intellectual property issues in freelancing and blogging. Amanda is an instructional designer full time, a freelance writer part time, and a nerd always. Contact Amanda at staff@LawStreetMedia.com.

The post The Transgender Murder Crisis: Why Were There So Many Killings in 2015? appeared first on Law Street.

Baltimore recorded its 300th homicide of 2015 last month, marking the highest number of killings for the city since 1999. Given the decrease in the city’s population over the past several decades, the actual murder rate in 2015 may be the highest in the city’s history. While the rising number of homicides is certainly troubling for Baltimore, it is not the only U.S. city experiencing a spike in homicides. The explanations for this abrupt rise, after years of decline, range from the after-effects of much-publicized police killings to a drug epidemic to simply warmer weather. This article will examine this rise and seek to determine if it is an outlier or a sign of some new trend.

Murders on the Decline?

Before even getting to whether homicides are an increasing threat or even up in 2015, the numbers have to be put into perspective. The much larger trend at play has been a large and consistent decline in violent crime, including homicides, over the past few decades.

Since 1993, the violent crime rate per 100,000 people in the United States has dropped by more than 50 percent. Additionally, while the drop was felt nationwide, it was also specifically evident in cities like New York that have historically been associated with crime, though that association may be starting to wear off. In 1990, there were 2,245 homicides in New York City. By contrast, there were 328 murders in 2014, the lowest number seen since 1963 when New York was also a much smaller city. In other words, crime is down, way down, from twenty years ago. Two other examples are Los Angeles and Washington D.C., which saw their murder rates drop 90 and 76 percent respectively since 1992.

The explanations behind these drops range far and wide. A number of factors have been suggested, including a better economy, higher incarceration rates, the death penalty, more police officers, and even the greater acceptance of abortions to name a few. While all these have been suggested, however, none has necessarily been shown to hold water. Interestingly one of the most scientifically supported reasons has been the reduced use of lead in everyday goods because lead exposure in children is believed to cause more violent behavior. Reduced drug and alcohol use is another factor that has been cited in the reduction.

What’s Going on This Year?

In August, the New York Times published an article noting that 35 U.S. cities have seen their murder rates rise in 2015. This includes a number of major cities in the U.S. such as New York, Chicago, Philadelphia and even the nation’s capital, Washington D.C. After years of dramatic decline, what could be causing these rates to reverse course and begin to rise again?

The Devil is in the Details

While the data seems to suggest a rise in violent crime and there are several plausible sounding theories to support it, is it actually happening?  The answer to that question is both yes and no. After the New York Times published its article, Five Thirty Eight decided to take a closer look at the statistics. Using partial-year data for the nation’s 60 largest cities, it found that homicides are indeed up 20 percent from last year in 26 of the nation’s 60 largest cities and 16 percent overall. However, they were also down in 19 of the same 60 cities including places like Boston, Las Vegas, and San Diego to name a few. In other words, the results used in the sample from the Times article may be skewed. While certain cities’ homicide numbers are up, at most they are only up a fraction or not at all. It is also important to look at the raw numbers in addition to the percentages when there is a relatively small number of homicides to begin with. For example, Five Thirty Eight found that Seattle, Washington experienced a 20 percent increase in homicides at the end of August relative to the previous year, but that increase was the result of three additional murders–going from 15 in 2014 to 18 this year. It is also important to acknowledge that the data is preliminary and only includes part of the year. The full, definitive dataset will not be available until the FBI publishes its annual statistics next fall.

While certain cities’ homicide numbers are up, in most they are only up a fraction or not at all. It is also important to look at the raw numbers in addition to the percentages when there is a relatively small number of homicides to begin with. For example, Five Thirty Eight found that Seattle, Washington experienced a 20 percent increase in homicides at the end of August relative to the previous year, but that increase was the result of three additional murders–going from 15 in 2014 to 18 this year. It is also important to acknowledge that the data is preliminary and only includes part of the year. The full, definitive dataset will not be available until the FBI publishes its annual statistics next fall.

Thus, while the overall rise in the national rate of 16 percent is statistically significant–Five Thirty Eight’s finding among the largest 60 cities–many cities’ individual changes are not. Statistical significance is a test to determine whether or not a change or relationship is the result of chance. It is also worth noting that in 2005 almost an identical rise of 15 percent in the national rate of homicides occurred before the number regressed to the mean and continued its slow decline.

The Who, What, Where, and Why

There seem to be as many explanations for murders may be rising in these cities as there were in explaining the large decline in violent crime over previous two decades. However, many of theories behind the recent rise in homicides do not seem to stand up to scrutiny either.

One that has gained a lot of traction is a theory known as the “Ferguson Effect.” According to this theory, a major contributing factor to the spike in violence is a growing reluctance among police officers to carry out routine police work in fear of criticism. This theory is largely a response to the controversial shooting of Michael Brown in Ferguson, Missouri as well as the death of Freddie Gray while in the custody of Baltimore policy. Put simply, bad guys are running free because police officers fear public damnation.

Ironically, there is competing theory from a community perspective, arguing that police actions have made regular citizens less likely to go to the police for assistance and more willing to take matters into their own hands. In either case the rise in violence in St. Louis or Baltimore, which has been attributed by some as the result of a Ferguson Effect, actually started prior to the highly publicized incidents of police brutality so these explanations do not seem very plausible. Attorney General Lauretta Lynch also testified before Congress saying that there is “no data” to support that theory.

Another explanation is the vast number of guns in the United States. While the exact number of guns in civilian circulation is impossible to pinpoint, it is estimated there are as many as 357 million nationwide–approximately 40 million more guns than U.S. citizens. Once again, while having more guns around likely leads to more gun-related deaths, there were hundreds of millions of guns around prior to this year so that explanation is also not very convincing.

Others argue that an increase in gang violence, fueled by drugs, has led to increased homicides. Of the reasons given, increased gang warfare is one of most likely explanations because it would likely affect only certain neighborhoods or cities and not the entire country. Some argue that cities like Chicago, are experiencing an increase in gang violence and illegal guns, which may explain recent spikes in homicides, but that is unlikely to be the case for every city.

Even the economy has been blamed as part of the “routine activities theory,” which suggests that when people are better off financially they more likely to go shopping or out to eat and thus more likely to encounter criminals. Others argue that crime generally goes down when the economy is doing well. However, John Roman, a senior fellow at the Justice Policy Center at the Urban Institute, noted in an interview with Vox that a good economy can also lead to higher crime if improvements are not distributed equally and the needs of the underserved are not addressed.

When you look at all of the data and try to make sense of it with the competing theories, it seems likely that each city has its own explanation. We do not yet know whether or not the spike identified this summer is indicative of a trend, but if that is the case we likely need more data to determine what might be causing it.

The accompanying video looks at the increase and some of the reasons suggested for it:

Perception is Believing

Despite what the numbers say or whether the theories much of this data is based on are viable, people ultimately make up their own minds on what is true or not. In a 2013 Pew Research Center survey, 56 percent of  those polled believed that gun violence was higher than it was 20 years earlier, but in reality, gun homicides had nearly been cut in half by 2013.  This poll was conducted before the recent spate of highly publicized police killings, indicating the number may even be even higher now. It is not surprising the notion of higher homicide rates resonate with people, even if they are a one term aberration and near historic lows. The following video looks at the perception or misperception of crime in the United States:

Conclusion

While violent crime, including homicides, has been decreasing since the early 90s, recent evidence suggests there may be a spike in homicides this year–at least in some of the United States’ largest cities. But it remains unclear whether this is emblematic of a trend, or even if it was just a brief increase as has often occurred in the past. Even with this increase, however, the rate is nowhere near approaching the record highs from two-decades ago.

In light of these findings, many questions emerge. Why is the homicide rate up this year? Are these numbers skewed by an unrepresentative sample? Is this the sign of a trend or just a temporary blip? Questions like these will not be answered for years if they are answered at all. While it is necessary to try and understand the data in order to improve policing and crime-related public policy, it is important to take a more local look at why homicides might be going up in each city. A spike in several cities is not necessarily indicative of a national problem.

Resources

The Washington Post: Baltimore’s 300th Killing This Year: A violent Milestone in a Riot-Scarred City

NYC: News from the Blue Room

The New York Times: Murders in New York Drop to a Record Low, but Officers Aren’t Celebrating

Forbes: What’s Behind the Decline in Crime?

The New York Times: Murder Rates Rising Sharply in Many U.S. Cities

Vox: Why Murder Rates are Up in St. Louis, Baltimore and Some Other Cities

The Washington Post: There are Now More Guns Than People in the United States

Five Thirty Eight: Scare Headlines Exaggerate the U.S. Crime Wave

Stat Pac: Statistical Significance

Pew Research Center: Gun Homicide Steady After Decline in the 90s; Suicide Rates Edge Up

Michael Sliwinski

Michael Sliwinski (@MoneyMike4289) is a 2011 graduate of Ohio University in Athens with a Bachelor’s in History, as well as a 2014 graduate of the University of Georgia with a Master’s in International Policy. In his free time he enjoys writing, reading, and outdoor activites, particularly basketball. Contact Michael at staff@LawStreetMedia.com.

The post Rising Homicides in Some American Cities: What’s Actually Going on? appeared first on Law Street.

Teachers are the key to educating and developing the minds of future generations. They are an invaluable asset to break down barriers, open minds, distill fear and misunderstanding, and to bridge the gaps across cultural, ethnic, racial, and gender disparities. Teachers are sometimes the only individuals within a child’s life, apart from parents or grandparents, that take on a quasi-parental role and are provided with an opportunity to teach children much more than a couple of history lessons. They can greatly influence the lens through which children see the world in adulthood, which can both be excellent and scary all in the same breath. This is especially true during times of great uncertainty–during times of terrorism and fear, teachers’ personal beliefs may end up being at issue as well.

In light of the growing rate of Islamophobia within the United States, the general population has become more aware, more critical, and more concerned with safety, particularly in the context of religious interaction. Accordingly, parents have been more demanding of the schools in which their children spend most of their time and the individuals who assume the roles of caretakers in school settings. Due to the heightened awareness and concern, regardless if justified, a Muslim New Jersey teacher named Sireen Hashem was reportedly fired for showing her class a video about Malala Yousafazi, a young advocate for children’s education worldwide and the youngest person to ever win a Nobel Peace Prize for her advocacy. Read on for a look at the case, including the Muslim teacher who was fired, the circumstances of her employment at Hunterdon Central Regional High School, and her lawsuit under Title VII of the Civil Rights Act of 1964 for discrimination.

The Discrimination Battle

On December 14, 2015, Sireen Hashem filed a civil complaint against  Hunterdon County, the Board of Education, Hunterdon Central Regional High School, and four named individuals including the history department’s supervisor–Robert Zywicki, and Principal Suzanne Cooley. Here are the facts her complaint alleges:

Sireen Hashem, a Muslim American of Palestinian descent, had joined the Hunterdon Central Regional High School’s history department in September 2013. No stranger to criticism, Hashem has shared that she had experienced several complaints regarding her lesson plans, which she alleges were no different than and followed the same curriculum as her fellow history coworkers. Furthermore, the video about Malala that Hashem showed to her class, subsequent her own screening to make sure it fell in line with her lesson for the day, was suggested by her non-Arab, non-Muslim, and non-Palestinian coworker, Lindsay Wagner, who had shown the exact same video in her class on the same day. Yet Hashem alleges she was the only teacher to suffer any reprimand.

According to her lawyers, many of the complaints against Hashem do not revolve around the lessons taught to her own classroom, but rather pertain to her assistance and help provided to other teachers. Hashem had been asked by a coworker to translate an interview of a Palestinian subject. She had also been asked to take part in a discussion about “The Lemon Tree” and assist in translating a Skype conversation that the students were able to have with a Palestinian character featured in the book, with which she complied. Parents were allegedly unhappy about Hashem’s participation in the Skype conversation.

Further, Hashem was allegedly criticized for her essay question asking students to “compare the actions of John Brown at Harper’s Ferry to the actions of Osama bin Laden on September 11, 2001”–a document-based question used by a number of teachers across the United States. Despite her desire to help her coworkers to bridge gaps and build understanding across cultural, ethnic, and religious norms by engaging discussion around current events and educating her students to minimize misunderstanding, Hashem’s actions were allegedly interpreted to have political overtones and misrepresented agendas. As such, Hashem claims that she was subject to a heightened level of discrimination by the school relative to her coworkers and became the target for egregious public posts on a student Facebook wall stating that Hashem’s brother was a terrorist, that she was anti-Israel, and that she threatened students who had different opinions and views.

According to her complaint, eleven days after showing her class the Malala video, Hashem was called into her supervisor’s office who told her that because of her religion, national origin, and background, she was not allowed to teach current events in the same ways that her coworkers did. She says that was further told that she “she should not mention Islam or the Middle East in her class” and that she was not to “bring her culture, life experience or background into the classroom” by the principal.

Hashem received a written notice on April 21, 2015 that her contract with the school would not be renewed. Subsequently, she was informed of the reasons and provided an opportunity to speak in front of the Board of Education for review. She appeared in front of the board on June 15, 2015, with approximately 60 students present to show support for Hashem, however they were not allowed to enter the deliberations and only five could speak on her behalf. Deliberations were held behind closed doors. On June 17, 2015, Hashem received notice that her employment and contract would be terminated on June 30, 2015. Approximately one month later, two Federal Bureau of Investigation (FBI) agents appeared at Hashem’s home because of an alleged threat she had made to the Board during her meeting for review.

Hunterdon County District has rejected all accusations made by Hashem as “brazenly false” and “frivolous.” It went on to explain that Hashem’s contract was simply not renewed and that the reasons for the non-renewal were explained to her, asserting that those reasons had nothing to do with religion or national origin as Hashem claims. The district expressed that “the board and the administration respect and embrace the diversity of the district’s employee and student population, and value the relationships it enjoys amongst persons of all faiths.” No further details have been provided by the district or any of the other defendants named as of yet.

The Complaint and Its Legalities

The complaint filed on behalf of Hashem is the first legal step to starting the lawsuit against Hunterdon Central Regional High School and the others named in the suit. The nature of action in the complaint filed is for employment discrimination, disparate treatment, and disparate impact under Title VII of the Civil Rights Act of 1964 as well as the New Jersey Law Against Discrimination.

Under Title VII of the Civil Rights Act of 1964, an employer is prohibited from failing or refusing “to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Accordingly, the employer cannot engage in practices that treat individuals differently based on protected classes that include one’s race, color, religion, sex, or national origin. Such practices are classified as disparate treatment, are against the law, and can serve as the basis of a Title VII lawsuit. In order to prove disparate treatment, the employee must show that he or she was treated differently by his or her employer on the basis of the protected characteristics mentioned above. However, an employer can explain, but is not required to prove, that there is a legitimate, non-discriminatory reason for the treatment to which the employee must show that the employer’s reasoning is a pretext for discrimination, or a false reason that hides the true intentions of the employer.

Additionally, discriminatory consequences of employment practices are also considered in a Title VII legal analysis under disparate treatment, which allows the court to look beyond the isolated treatment of the individual and dive into employment practices that appear to be facially neutral (not discriminatory as a policy or on their face), but in practice subject a certain protected class to discrimination. Essentially, an employee must prove that a neutral policy or practice of an employer has a disproportionate effect on a protected group, which can sometimes be difficult as the courts do not have a specific threshold test or analysis but rather assess each situation on a case-by-case basis. However, if an employee is able to show adverse and discriminatory affects on a protected class, then the employer has to prove that its policies and conduct were justified as a business necessity.

The New Jersey Law Against Discrimination provides for a greater amount of protected characteristics including “race, creed, color, national origin, ancestry, age, marital status, familial status, sex or sexual orientation, atypical cellular or blood trait, generic information, or service in the armed forces.” Further, employers are not allowed to discriminate on the basis of handicap, unless such a handicap would prohibit the employee from carrying out the essential functions of the job. Under New Jersey law, an individual is likely to have a successful claim if they are able to show that 1) they are in a protected class, 2) they were working up to the expectations of their employer, 3) they suffered adverse job action such as suspension or termination, and 4) they were replaced by an individual not in the protected class of the employee or that the adverse employment action was directly related to the employee’s protected status.

Hashem’s complaint outlined additional causes for her action including conspiracy to discriminate, deprivation of rights under the First and Fourteenth Amendments, unlawful discharge with malice, and defamation per se.

What’s Next?

While the lawsuit is still in its beginning stages, supporters of Hashem suggest that in disallowing her to teach students the same curriculum and in the same manner as her non-Arab, non-Muslim, and non-Palestinian coworkers, she was discriminated against on the basis of her race, religion, and national origin pursuant to federal law. Further, her attorneys allege that she has been treated less favorably than her colleagues, particularly pertaining to the discriminatory nature of what she was and was not allowed to teach her students.

The complaint filed on behalf of Hashem and her recollection of Hunterdon’s restrictions suggest that all of the prohibited lessons centered around current events, books, and influential people had a connection to Islam. Hashem claims that she taught in compliance and accordance to the school’s curriculum and the criticism she endured was often because of her assistance to other teachers for her specific skill set. Hashem’s supporters highlight that she was trying to help other teachers and provide insight and understanding that other teachers did not have, which is precisely why they came to her and asked for her help; that she was trying to bridge educational and cultural gaps while hoping for a more compassionate and understanding future generation.

Ironically, in trying to join the common cause to advocate for children’s education and showing Malala’s video, Sireen Hashem was allegedly fired for her educational implementation on the basis of race, national origin, and religion. We will have to wait and see how the lawsuit unravels and what is in store for Sireen Hashem pursuant to Title VII and the New Jersey Law Against Discrimination.

Resources

Primary

Hashem v. Hunterdon Central Regional High School

U.S. Equal Opportunity Employment Commission: Title VII of the Civil Rights Act of 1964

Employment Law New Jersey: New Jersey Law Against Discrimination

Additional

The Huffington Post: Mother Upset Over School Assignment About Islam

The Malala Fund: Malala’s Story

The Daily Beast: Muslim Teacher Fired After Showing Malala Video

 Sandy Tolan: The Lemon Tree

 RT: Muslim Teacher Sues NJ School District for Pattern of Discrimination Over Her Religion

 The Huffington Post: New Jersey Teacher Says She Was Fired After Showing a Video of Malala

The New York Times: New Jersey School District Rejects Claim of Anti-Muslim Firing

FindLaw: Disparate Impact Discrimination

 McDermott, Will, & Emery: New EEOC Rule Significantly Increases Employer Burdens in ADEA Disparate Impact Cases

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

The post Sireen Hashem: Was her Firing Discriminatory? appeared first on Law Street.

Drunk driving has left parents childless, spouses widowed, and siblings as only children. In 2013 alone, 10,076 people were killed in drunk driving crashes. It has claimed the lives of thousands of people over the years and sparked lobbyist action, which has forced stricter regulation of drunk driving on both the federal and state levels. Most recently, the Supreme Court has agreed to hear a group of three cases, a sequel per se to its 2013 drunk driving decision, in an effort to review warrantless drunk driving tests as a violation of Fourth Amendment rights and the criminalization of a refusal to take a drunk driving test. Read on to learn more about the development of drunk driving as a crime and what the new cases hold for the future.

History of Regulating Alcohol Consumption

Despite its widely accepted consumption, alcohol is still a drug and one that not only endangers the drinker, but in some cases the lives of others. The federal government and state governments have long been involved with the regulation of alcohol. Mothers Against Drunk Drivers, or MADD, incorporated in September 1980, has been a forefront lobbyist in terms of pressuring the government for stricter and more consequential laws for drunk drivers. Following MADD’s influence, the federal government signed into law the Federal Uniform Drinking Age Act of 1984, which established a uniform drinking age of 21 in the United States and governed state implementation of the Act through apportionment of funding for highway construction, repair, and maintenance. While states have flexibility and control over alcohol policy development and enforcement, the federal government maintains regulation over whether alcohol is sold in the state, whether it can be imported into the state, its distribution, and its possession.

Furthermore, states control the laws pertaining to drunk drivers and the potential consequences and punishment suffered by those charged with drinking and driving. In a breaking development on Friday, December 11, the Supreme Court agreed to review three cases all dealing with the same ultimate issue–“whether a blood or breath test for drunk driving can be made without a search warrant and whether, if there is no warrant, an individual can be charged with a crime for refusing to take such a test.” The upcoming Supreme Court decision will have a nationwide effect regarding drunk driving roadside manner as 13 states make it a crime to refuse to take a drunk driving test. The three cases chosen for review were picked out of 13 submitted because they involved 3 different scenarios regarding drunk testing and hail from both North Dakota and Minnesota.

The Important Legalities of Drunk Driving

While the evolution of drunk driving policy and law-making has a rich history on both a state and federal level, we will focus on post-2000 development. One of the most noteworthy nationwide implementations was finalized in 2004 with the adoption, by all 50 states, of the .08 blood alcohol concentration (BAC) standard and implementation of the per se laws. Such laws establish that if an individual is tested and their BAC is .08 or over, no additional evidence of intoxication is required–that individual is considered intoxicated by law.

Image courtesy of [Ashleigh Jackson/KOMUnews via Flickr]

However, in 2013, the Supreme Court reviewed Missouri v. McNeely which found that in a routine drunk driving investigation where no additional factors existed which created a special circumstance, exception, or emergency situation, save for the natural dissipation of alcohol within one’s body, a non-consensual and warrantless forced blood test violated the Fourth Amendment right to be free from unreasonable searches of one’s person. The facts of McNeely were straightforward–Tyler McNeely was stopped shortly after 2AM, had admitted to having a few beers, failed a field sobriety test, smelled of alcohol, declined to take a breathalyzer test, and was placed under arrest. The officer did not secure a search warrant prior to taking McNeely to the local hospital where he asked for signed consent for a blood test, which McNeely denied. A lab technician, under the direction of the officer, was told to collect a blood sample from McNeely despite not obtaining consent to do so. McNeely’s BAC was 0.154, almost double the legal limit, and he was subsequently charged with driving while intoxicated.

The Court in McNeely recognized that Fourth Amendment precedent allows for warrantless searches of a person only if the search falls within a recognized exception. A number of exceptions give rise to an exigent circumstance including an emergent need to provide assistance to someone in a home, chasing and pursuing a fleeing suspect, to enter a burning building or investigate a fire, or to prevent the destruction of evidence, among other factors. While the time restraint on testing a blood alcohol level could present an exigent circumstance not only because of the natural dissipation of alcohol, but also for the time required to obtain a warrant, the Court had to analyze the full picture regarding McNeely’s specific situation. They ultimately decided that the State’s argument–that the natural dissipation of alcohol from a driver’s body is considered an exigent circumstance in every case–was unsupported and unfounded on a Fourth Amendment basis. Essentially, the fact that the test may not be accurate hours later after the alcohol wore off was not a good enough reason to perform a warrantless test.

The Statistics of Drunk Driving 

Despite the legal disputes around drunk driving policies, statistics have come to show a significant decline in the number of drunk driving deaths from 1982 to 2014. The rate of drunk driving is highest among individuals between the ages of 21-25 with drunk driving costs reaching an upward of $199 billion a year. Furthermore, over 1.2 million people were arrested in 2011 for driving drunk and approximately one-third of those arrested or convicted of drunk driving were repeat offenders. Needless to say, there is work to be done to further drop those statistical reports.

The Supreme Court’s Upcoming Drunk Driving Review

Despite the ruling in Missouri v. McNeely, the Supreme Court is tackling the warrantless blood or breathalyzer test again in addition to assessing the constitutionality of criminalizing the refusal of a driver to submit or consent to a test. Of the three cases taken up for review, two come from North Dakota where it is a crime to refuse a blood, breath, or urine test, one punishable to the same extent as a conviction for drunk driving.  The lead appeal comes from Danny Birchfield, who in 2013, drove his car off the road, failed a breathalyzer test, and subsequently refused to take a blood test. Birchfield pled guilty to a misdemeanor charge, but reserved his right to appeal.

The third case operates under Minnesota law, which makes it a crime to refuse an officer’s request to take a blood test, if a valid arrest has been made for drunk driving. William Bernard Jr. was arrested and charged with two felony counts of refusing to submit to a sobriety field test, blood, or breath test. Witnesses reported Mr. Bernard after his truck was struck trying to pull a boat out of the water. Police requested he submit to a test because he smelled strongly of alcohol and was driving the truck–he denied the test and was arrested under Minnesota’s “implied consent law,” agreed to when a driver obtains his or her drivers license and criminalizes a refusal to take a test. Ultimately, Bernard was convicted–a conviction that is in conflict with Missouri v. McNeely because it allowed for warrantless drunk testing and an arrest without the presence of additional factors or emergent circumstances.

Image Courtesy Of [grendelkhan via Flickr]

Conclusion

The Supreme Court review of the upcoming cases is expected to clarify the issues that McNeely did not, such a bright line rule pertaining to warrantless demands for drunk testing and exigent circumstances, as well as addressing the criminalization of refusal through implied consent laws. Although the Supreme Court may be wary of completely controlling process and punishment of drunk driving, a long-term power of the states, it will have to develop a more clear requirement since the number of cases challenging drunk driving test procedures under Fourth Amendment claims continues to grow, particularly in the 13 states with implied consent laws. Many state rulings allowing for warrantless testing are in direct conflict with McNeely–it is therefore imperative, for continuity and consistency, that the Court create a bright line rule for drunk driving test procedures. Whether it will or not in the upcoming case review is to be determined.

Resources

Primary

98th Congress: Federal Uniform Drinking Age Act of 1984

FindLaw: Per Se DUI Laws

Justia: Missouri v. McNeely

Additional

SCOTUSblog: Court to Rule on Drunk-Driving Tests

National Institute on Alcohol Abuse and Alcoholism: Alcohol Policy

Foundation for Advancing Alcohol Responsibility: .08 BAC Legal Limit

Mothers Against Drunk Drivers

 Mothers Against Drunk Drivers: Drunk Driving Deaths 1982-2014

Mothers Against Drunk Drivers: Drunk Driving Statistics

 Bring Me the News: No Warrant Needed: Ruling OKs Arrest if You Refuse Drunk Driving Test

The Chicago Tribune: Supreme Court to Review Blood-Test Requirement for DWI Cases

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

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If there’s one person who is sure to always hit us where it’s relevant, it’s Shonda Rhimes. On the mid-season finale of “Scandal” (spoilers ahead, for those who aren’t caught up), Mellie filibusters in front of the Senate for nearly a full day in order to ensure that Planned Parenthood’s funding isn’t considered discretionary, and Olivia aborts Fitz’s child. Even with the trigger warning at the beginning of the episode, viewers were surprised with where the plot took them.

All of this aired just eight days before a gunman attacked a Planned Parenthood in Colorado Springs, Colorado. It occurred in the midst of a lawsuit against the state of Texas for trying to remove Planned Parenthood from Medicaid funding. And it tackled a real-life issue that has been discussed with increasing fervor since the fall—defunding Planned Parenthood altogether. Planned Parenthood remains front-page news, which is rare for an organization that has been around for nearly one hundred years. Yet it stays relevant, and will continue to stay relevant in mainstream media as long as the country is polarized by the subject of abortion. So, here’s a breakdown of all the latest Planned Parenthood stories, and what they mean for the future of the organization and healthcare.

Is Planned Parenthood going to be defunded?

In short, as of right now, it’s hard to say whether Planned Parenthood will still be funded next year.

There are two ways that Republicans could go about trying to defund Planned Parenthood. There is a bill that just passed the Senate that would both remove federal funding from Planned Parenthood for one year and repeal part of the Affordable Care Act. This bill had already passed in the House of Representatives. However, given that it’s part of a bill to repeal Obamacare, President Obama is expected to veto it.

So, if that doesn’t work, it is possible that the defunding would be tacked onto the spending bill that has to pass by December 11 in order for the government to continue functioning.

Why defund Planned Parenthood?

The woman’s health organization has been under fire since several videos were released in July 2015 that imply that baby parts are sold by the organization. Since then, it has been proven that these videos were manipulated by an anti-abortion organization, but the damage had already been done. The president of Planned Parenthood has since had to testify before a congressional hearing, and the threat to defund the organization has become very real.

What would happen if Planned Parenthood is defunded?

If Planned Parenthood is defunded, the results could be disastrous. While it is anyone’s right to decide what side they fall on in the ongoing and ever-relevant debate about abortion, that is only a fraction of the work that Planned Parenthood clinics do across the country. According to its own statistics, 80 percent of its work is focused on preventing unintended pregnancies. Aside from that, it also provides 4.5 million STI tests and treatments each year, including nearly a quarter of a million HIV tests. When Planned Parenthood was defunded in rural Indiana, there was an explosion of HIV in the county. For many women, Planned Parenthood is the only source of STI testing, birth control, and other women’s health services available to them. Defunding Planned Parenthood would take those services away from the five million people who visit clinic locations each year.

Arguments for Defunding Planned Parenthood

On the flip side, the government funds that are funneled into Planned Parenthood each year have many other worthy recipients. Jeff Duncan, a Representative from South Carolina, said that the Boys and Girls Club, for example, only gets a fraction of the funds that Planned Parenthood gets each year. There is also the argument that there should be fewer government-sponsored programs all together, and Planned Parenthood is just another program that should be funded in another way.

However, no matter how it’s stated, it comes down to this—pro-lifers, and even some pro-choicers, don’t think that the government should fund any organization that has anything to do with abortions, even if it is illegal for federal funds to pay for abortions themselves. In this belief system, Planned Parenthood shouldn’t be a government-funded agency, and therefore defunding the organization would free up tax dollars for other uses.

What’s going on with Planned Parenthood in Texas?

Greg Abbott, the governor of Texas, announced in October that the state was going to remove Planned Parenthood from Medicaid funds. In return, Planned Parenthood and ten patients are suing the state of Texas in the hopes of stopping officials from cutting off the Medicaid funds that allowed the patients to be treated at Planned Parenthood locations. Texas is the fourth state, following Alabama, Arkansas, and Louisiana, to be involved in such a lawsuit this year.

Abbott made his announcement after the uproar that the July 2015 videos caused. The videos depicted supposed Planned Parenthood officials discussing selling aborted fetal parts for research, including staff members at Planned Parenthood Gulf Coast, which is located in Houston, Texas.

Does Planned Parenthood stand a chance of winning the lawsuit?

This lawsuit could go either way.

In Louisiana, Alabama, and Arkansas, the state had to stop proceedings to remove Planned Parenthood from Medicaid funds until officials looked into the matter more closely. This means that there is a chance that the removal is unconstitutional, or breaks some kind of law for restricting federal funds. Federal health officials did warn the Texas Health and Human Services Commission in October that removing Planned Parenthood from Medicaid funding could be a violation of United States law.

This is also not the first time that Planned Parenthood has sued the state of Texas. In 2012, Texas Republicans removed Planned Parenthood from the Texas Medicaid Women’s Health Program. The state of Texas argued that the federal government gave individual states the right to decide how to allocate federal Medicaid funds, and Planned Parenthood eventually lost the lawsuit.

As of November 23, 2015, the state of Texas had not yet received legal papers in the lawsuit. Once papers are received, the case will likely end up in front of a federal judge.

What about the shooting in Colorado Springs?

On Friday November 27, 2015–Black Friday, the day after Thanksgiving best known for shopping deals—there was a fatal shooting at a Planned Parenthood clinic in Colorado Springs, Colorado. Three were left dead and nine injured in the shooting, and one of the deceased was a police officer. After a five-hour standoff with police, the shooter was taken into custody.

As of right now, the exact motive for the shooting is unknown. Robert L. Dear was arrested and appeared at a hearing on Monday November 30 wearing a security smocked designed to prevent suicides. Allegedly, when Dear was arrested, he uttered “no more baby parts,” but police have not been forthcoming with any other information.

How does this affect where Planned Parenthood stands?

The spotlight right now is on the potential Presidential candidates. None of the Republican candidates specifically addressed the attack until Saturday, a full day after the events took place, and then, it was on Twitter, and the statements were vague. Both Hillary Clinton and Bernie Sanders released supports of sympathy. President Obama, meanwhile, stated his continued frustration with gun violence in the U.S.

The Senate voted this week on the bill that will defund Planned Parenthood, and while it was successful, it goes before President Obama now. Additionally, Kevin McCarthy, the House majority leader, has stated that Republicans are no longer planning to force a government shutdown over the defunding of Planned Parenthood, something they had been threatening to do in early November. However, the status of Planned Parenthood’s funding remains to be seen.

How is all of this related to a prime-time television show?

Shonda Rhimes is not a woman who shies away from controversial issues, as the midseason finale of “Scandal” clearly showed us. It is Rhimes’ relevancy that strikes a nerve with viewers. She was able to show a scenario playing out in the Senate–which is exactly where the bill that may defund Planned Parenthood for a year sat at the time–when a Republican junior Senator from Virginia filibusters so that funding for Planned Parenthood is not downgraded to discretionary. Not only that, but we see Olivia Pope–a strong woman, a character with gumption–in the most vulnerable position a woman can find herself in: on a bed with her feet in stirrups and a doctor between her legs. Put the two women together in a single episode, and you leave your audience with a powerful image.

After the episode aired, Planned Parenthood released this statement:

Tonight, the millions of people who tune into Scandal every Thursday night learned that our rights to reproductive health care are under attack. Never one to shy away from critical issues, Shonda Rhimes used her platform to tell the world that if Planned Parenthood lost funding for contraception counseling, STI testing, cancer screenings, and safe, legal abortion—millions of people would suffer. And this episode wasn’t the first time one of Rhimes’ characters had an abortion, yet tonight we saw one of our favorite characters make the deeply personal decision that one in three women have made in their lifetime. We applaud Shonda Rhimes tonight—and every Thursday night—for proving that when women are telling our stories, the world will pause and watch. We just hope those in Congress—and throughout the nation—who are steadfast on rolling the clock back on reproductive health care access are taking note.

But, further proving the contentious nature of this issue, the conservative Media Research Counsel released their own statement the day after the episode aired:

Hollywood’s liberal values permeate movies and television. Last night’s episode of ABC’s Scandal was pretty much an hour-long advertisement for Planned Parenthood. In the most disturbing scene, the main character has an abortion to ‘Silent Night’ (a hymn celebrating the birth of Jesus) playing in the background. This is Hollywood’s moral depravity on full display.

This particular episode was an interesting juxtaposition when considered side-by-side with what is currently happening in Texas and Colorado Springs. Rhimes showed women making powerful statements about the importance and commonplaceness of women’s health organizations like Planned Parenthood. In the current contentious political climate, “Scandal’s” arc showed a fictional look at some very real issues.

Conclusion

Planned Parenthood will likely always be in the news; such is the case when something as polarizing as abortion is involved. Religious and moral beliefs will cause the country to be split in two on the issue, as has been the case since Planned Parenthood opened its doors one hundred years ago. As long as the issue is relevant, we will continue to see media portray the issue in different lights, both in fiction and in mainstream media. And it is likely that Planned Parenthood and the news surrounding it will stay relevant for a while.

Resources

Primary

Planned Parenthood: Planned Parenthood at a Glance

Additional

Texas Tribune: Planned Parenthood Sues Texas Over Medicaid Removal

Los Angeles Times: Planned Parenthood Sues Texas Over Medicaid Funding

The New York Times: What Defunding Planned Parenthood Would Really Mean

Denver Post: What We Know about the Planned Parenthood Shooting in Colorado Springs

Refinery 29: Scandal Season 5, Episode 9 Recap: The Women Take a Stand

Entertainment Weekly: Scandal Abortion Shock: ABC Hit Slams Planned Parenthood Defunding

NPR: After Planned Parenthood Shooting, Obama Again Calls for Action on Guns

The New Yorker: The Planned Parenthood Shooting and the Republican Candidates’ Responses

The New York Times: For Robert Dear, Religion and Rage Before Planned Parenthood Attack

The New York Times: No Shutdown Expected on Planned Parenthood

The New York Times: Planned Parenthood Sues Texas in Dispute of Funding for Clinics

Huffington Post: Indiana Shut Down Its Rural Planned Parenthood Clinics and Got an HIV Outbreak

Slate: The GOP Argument for Defunding Planned Parenthood is Incoherent

The Wall Street Journal: Republicans Look for Votes to Defund Planned Parenthood, Repeal Parts of Health Law

The Atlantic: ‘Scandal’ Gracefully Tackled Abortion in Its Midseason Finale

Refinery 29: Planned Parenthood “Applauds Shonda Rhimes” for Last Night’s Episode of Scandal

Daily Signal: Why Haven’t GOP-Led States Defunded Planned Parenthood?

Amanda Gernentz Hanson

Amanda Gernentz Hanson is a Minnesota native living in Austin, Texas. She holds a Bachelor’s degree in Chemistry from Hope College and a Master’s degree in Technical Communication from Minnesota State University, where her final project discussed intellectual property issues in freelancing and blogging. Amanda is an instructional designer full time, a freelance writer part time, and a nerd always. Contact Amanda at staff@LawStreetMedia.com.

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Women have, for centuries, been fighting a battle to obtain equal rights and autonomy within the patriarchal society in which we live. From voting rights, equal pay, gender equality, and financial independence to stigmatized domestic violence ideologies and highly controversial contraceptive and reproductive rights, women continue to strive toward a gender equilibrium.

While their history is bountiful, reproductive rights–specifically those focused on abortion–have morphed from a religious, hot-button voting issue and politically polarizing topic of interest into a women’s rights and equality war zone, which has mixed reviews even from within. For years, various states have been testing the limitations of abortion laws by trying to implement restrictions to access, mandatory and burdensome requirements, and regulations upon women and healthcare providers. Most have not passed muster, however, in early November 2015, the Supreme Court agreed to hear a major and consequential abortion rights case for the first time since 2007. Read on to learn more about the history of abortion rights, the important facts of Whole Women’s Health v. Cole, and what it could mean for future generations of women.

A “Brief” History of Abortion Rights

Laws pertaining to contraception came to the Supreme Court in 1965 with Griswold v. Connecticut, where the court found that a state statute forbidding the use of contraceptives, punishable by fine and imprisonment, was unconstitutional. Justice William O. Douglas crafted the “penumbra” argument, stating that, “…the First Amendment has a penumbra where privacy is protected from government intrusion,” finding that “the sacred precincts of marital bedrooms” is not a place that is subject to government control and infringement. Marital privacy was to remain private. The curtain would remained closed on the intimacies of married life.

Image Courtesy Of [Kate Ausburn via Flickr]

In 1973, the Supreme Court decided the landmark abortion case, Roe v. Wade. Justice Harry Blackmun, a conservative father to three daughters who served as resident counsel in the Mayo Clinic (1950-1959), authored the weighty opinion. The importance of the right to privacy and a woman’s autonomy over her pregnancy led him and the Court to find the restrictive Texas statute unconstitutional and abortion a private legal matter encompassing a woman’s right to choose. The Court quoted the Texas District Court below, agreeing that the “fundamental right of single women and married persons to choose whether to have children is protected by the Ninth Amendment, through the Fourteenth Amendment.” However, the opinion explained vested interests in abortion proceedings and outlined different levels of state interests in regulating abortion procedures in the second and third trimester.

While 1992 brought United States citizens “Aladdin,” Windows 3.1, and the birth of Miley Cyrus, it also bestowed upon us the sequel to Roe v. Wade in the form of Planned Parenthood of Southeastern Pennsylvania v. Casey—a complex multi-part decision that ultimately addressed what regulations were and were not acceptable by the states regarding abortion procedures under a undue burden/substantial obstacle analysis. The Court reaffirmed its Roe holding by adhering to the three major principles in Roe: 

1. That a woman has the right to abort prior to viability “without undue interference from the State:”
2. That the State has the right to restrict abortions after fetal viability so long as its laws contain exceptions for any pregnancy that endangers the life or health of a woman; and
3. That the State has a “legitimate interest” in the pregnancy to protect the life of the woman and fetus.

Planned Parenthood v. Casey challenged five provisions of the Pennsylvania Abortion Control Act of 1982. One required women, prior to getting an abortion, to obtain informed consent. Informed consent is a process in which a woman is provided with the risks of abortion, fetal development, gestational age of the fetus, whether the fetus can feel pain during the procedure, and that personhood begins at conception, etc. The act also require women to wait a mandatory 24 hours following signed consent to proceed with the procedure, obtain parental consent for minors with the allowance of a judicial bypass, and obtain signed spousal consent. Additionally, the act defined a “medical emergency” within the context of abortion procedures and set out specific reporting requirements by the facilities performing abortion services. The Court, in a plurality decision, upheld the central holding in Roe, but did however, overturn Roe’s trimester analysis framework and only found one provision–requiring spousal consent–burdensome and an unconstitutional regulation on a woman’s right to choose. The rest of the provisions were upheld.

Legal discourse pertaining to abortion did not end there.  In 2000, Stenberg v. Carhart surfaced to challenge a Nebraska statute prohibiting and criminalizing “partial birth abortions,” also known as “dilation and extraction” in the medical community. The court’s scientifically detailed opinion ultimately held that the Nebraska statute was unconstitutional and therefore could not be enforced as it did not carve out an exception for the “preservation of the health of the mother.” Additionally, the statute, with its ambiguous wording and terminology, unduly burdened the mother’s ability to choose an abortion, noting that in certain situations and in the presence of specific circumstances, partial birth abortions were “safer” than alternative procedures and methods.

In 2003, Congress and President George W. Bush signed into law the Federal Partial Birth Abortion Ban Act which expressively banned the “dilation and extraction” abortion method cited in Stenberg. Advocates that challenged the federal statute in lower courts had the statute struck down, but the challenge to the federal statute did not reach the Supreme Court until 2007 in Gonzales v. Carhart.

The court in Gonzales v. Carhart addressed the issue of whether the federal statute imposed a substantial obstacle for late-term pre-viability abortions and found it to be constitutional. The act directly outlined the procedure prohibited–the delivery of a viable/living fetus to an anatomical landmark which required an additional “overt act,” an act separate from the delivery usually involving piercing or crushing the fetal skull, to be taken in order to kill the partially delivered fetus, hence countering any argument that the statute was “vague.” Further, the court addressed the possibility of other legal abortion options and stated that, “if intact [dilation and extraction] is truly necessary in some circumstances, a prior injection to kill the fetus allows a doctor to perform the procedure, given that the Act’s prohibition only applies to the delivery of ‘a living fetus.'” Here, Congress sought, and the court agreed, to create a hard line between abortion and infanticide.

Since Gonzales, states have taken to further testing the limitations of abortion regulation, introducing “fetal pain” laws. Fetal pain laws proceed to assert that a fetus can feel pain at 20 weeks of gestation and therefore abortion should be prohibited after 20 weeks of pregnancy, but no challenges pertaining to these laws have reached the Supreme Court yet. In fact, Whole Woman’s Health v. Cole will be the first major abortion case to be reviewed by the Supreme Court since 2007.

Sifting Through Whole Women’s Health v. Cole

In 2013, the state of Texas passed into law House Bill 2 (H.B. 2), in an effort to “raise the standard and quality of care for women seeking abortions.” The statute, which contained four primary provisions pertaining to abortion regulation, is currently being challenged for two of its provisions. The first is a requirement of physicians performing abortions to have admitting privileges at a hospital located within a radius of 30 miles from where the abortion is being performed. The second provision being challenged requires abortion clinics to comply with the same set of standards applicable to ambulatory surgical centers (ASCs) along with compliance to standards set for abortion clinics.

The challenger? Whole Woman’s Health, a privately-owned women’s healthcare facility that offers comprehensive gynecology services, including abortion, and provides a holistic approach for the care of their patients. The organization was founded in 2003 by Amy Hagstrom Miller who saw a need in the communities of women to address pregnancy and reproductive choice not only as a medical matter, but also as something that requires a woman to evaluate her identity, goals, and future plans–an emotional and weighty process.  Whole Woman’s Health has seven offices within the United States and assists over 30,000 women per year for a variety of reproductive healthcare reasons.

Image Courtesy Of [Ann Harkness via Flickr]

At the time of trial, seven ASCs, located in five major Texas cities, were licensed to perform abortion services and would be able to comply with H.B. 2. Although Texas had over 40 abortion clinics prior to the law taking effect, it was stipulated that, at most, eight abortion-providing centers would be able to comply with the ASCs provision of H.B. 2, subjecting women exercising their right to choose to increased travel and transportation costs. During trial, the State offered expert testimony to suggest that the regulation would be “medically beneficial,” but did not prove necessity, and as such, the District Court found that the ASC requirement, in its entirety, was overly burdensome. Furthermore, the District Court also found that the physician privilege requirement “was not medically justifiable and that the burdens it imposed were not outweighed by any potential health benefits.”

The United States Court of Appeals for the Fifth Circuit found that res judicata barred any facial challenge and as-applied challenge (under a different analysis) on the admitting privilege and ASC compliance provisions of H.B. 2 and that the District Court erred in rejecting the State’s res judicata defense during the motion to dismiss stage of proceedings. Essentially, due to a previous lawsuit that was still pending a decision when Whole Women’s Health challenged H.B. 2 but was shortly thereafter decided, the Plaintiffs could not challenge the bill again as any injury arose out of the same claim and the parties had a legal relationship with one another.

The Court did, however, provide an analysis on the merits as well concluding that:

1. The Plaintiffs failed to prove that H.B. 2 was enacted with an “improper purpose,” mainly to close a majority of abortion clinics in Texas;
2. That the District Court incorrectly analyzed legislative factfinding of information that led to the passage of the Texas law under the “rational basis review,” which solely calls for the court to presume the law in question is valid and inquire whether that law is “rationally related to a legitimate state interest;”
3. The District Court’s analysis and the Plaintiff’s evidence did not satisfy the “large fraction test,” requiring a showing that the law imposes a substantial obstacle on a large fraction of women in Texas;
4. That the abortion services offered at the McAllen Whole Woman’s Health location, a clinic not complying with ASC standards, and lack of a “qualified” clinic for 235 miles created a substantial obstacle for a woman to obtain an abortion and therefore was granted injunctive relief until a licensed facility opened closer to the Rio Grand Valley;
5. That the Plaintiffs offered a considerable amount of evidence showing that the physicians at the McAllen location were denied privileges at the local hospital for reasons “other than their competence,” and were therefore granted injunctive relief enjoining the State of Texas from enforcing the privilege requirement; and
6. That the El Paso clinic was not granted injunctive relief based on an undue burden of women to travel over 550 miles to the nearest Texas abortion clinic in San Antonio because they could travel across state lines to Santa Teresa, New Mexico, which shares a metropolitan area with El Paso to obtain the procedure.

The Fifth Circuit largely upheld the challenged provisions of H.B. 2.

So…What Could That Mean for the Rest of Us?

H.B. 2 showed the level of impact that such abortion regulation could have on the availability of abortion services, bringing down the 40+ available abortion clinics in Texas to a mere 8-10 as outlined in the United States Court of Appeals for the Fifth Circuit decision. Such legislation could create a large and costly barrier, not only to the 5.4 million women in Texas, the second largest female populated state in the country, but to all women in the United States.

In four states–Mississippi, North Dakota, South Dakota, and Wyoming–only one abortion clinic remains and it is unclear whether or not those clinics would be able to survive with the Texas-based legislation.

If such regulation passed muster in the Supreme Court, there could be an increase in self-attempted abortion and risky abortion procedures, which was noted, by the Plaintiffs in Whole Women’s Health, as a growing trend after H.B. 2 was passed in Texas. Additionally, costs would increase in travel, transportation, lodging, and in the procedure itself, potentially costing women their actual right to choose. Qualified abortion clinics would be overwhelmed, appointments would be scarce and harder to coordinate with travel and work schedules, and ultimately, those most impacted would be individuals in poverty and those with transitioning immigration status. Such legislation would force an unhealthy psychological effect on woman already making a difficult decision and consequently impose a great burden on a major woman’s right without proof that the abortion clinics functioning today are doing so at a sub-par or dangerous level.

So, one question remains–what’s next for abortion regulations in the United States?

RESOURCES

Primary

FindLaw: Whole Women’s Health v. Cole

JUSTIA: Griswold v. Connecticut

JUSTIA: Roe v. Wade

JUSTIA: Stenberg v. Carhart

JUSTIA: Gonzales v. Carhart

Legal Information Institute: 18 U.S. Code § 1531

State of Texas Legislature: House Bill 2

Additional

The New York Times: Supreme Court to Hear Texas Abortion Law Case

Planned Parenthood: Federal and State Bans and Restrictions on Abortion

Linda Greenhouse: Becoming Justice Blackmun

Guttmacher Institute: State Policies in Brief – Counseling and Waiting Periods for Abortion

USA Today: Idaho First State to have Fetal Pain Law Rejected

National Public Radio (NPR): High Court’s Pass on ‘Fetal Pain’ Abortion Case Unlikely to Cool Debate

Whole Woman’s Health

Bloomberg: The Vanishing U.S. Abortion Clinic

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

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In the span of four days–between October 30 and November 2–federal prisons around the country released 6,000 nonviolent prisoners. This marked the largest single prisoner release in the history of the United States. The decision was the result of the government’s growing desire to address the overcrowding within the prison system. An additional 40,000 convicts could also be released in the coming months as new, more lenient sentencing rules can be retroactively applied to them as well. Read on to see what led to the recent release and how it compares to similar releases in the past. Now that the government is starting to deal with an issue that has been building for decades, what will a continued response look like and how will the prison system change in the future?

Releasing Prisoners

In the Past

While the recent release of so many prisoners all at once has drawn a variety of reactions, including warnings of increased crime, this is not the first time that a large number of prisoners has been released. In 2011, the Supreme Court ordered the state of California to release 30,000 inmates due to overcrowding in the state’s prison system.

On top of this are the prisoners that are also released over the course of a year as well–the federal government releases up to 55,000 prisoners each year. However, this is only a small portion of the inmates set free, as many as 10,000 are set free each week.

This Release

The recent release was a long time in the making. The final decision came about following the advice of the U.S. Sentencing Commission. The commission lowered maximum sentences for people convicted of drug-related offenses. The change could then be applied retroactively, meaning if a prisoner was already convicted and serving a sentence they could apply for early release. Ultimately, the decision was up to federal judges who reviewed eligible cases and determined whether the person in question would be a threat if released back into society.

Like the process, the release itself was not as straightforward as it may seem either. Of the 6,000 inmates, approximately a third were undocumented immigrants. This group will not be released into the public, but will instead be detained by Immigration and Customs Enforcement, which will begin deportation proceedings. Additionally, many of those who were released were already on parole or in half-way houses. On average, those being released already served nine years of their sentences and were only being released around 18 months earlier than expected. The video below details the recent release:

Current Issues

Overcrowding

One of the major reasons for releasing these prisoners is that the prison population is simply too big for the system to manage effectively. There are 698 prisoners for every 100,000 people in the United States, the second highest rate in the world. A 2014 estimate from the Prison Policy Initiative suggests that there are as many as 2.4 million people in U.S. prisons on any given day, including 1.36 million in state prisons. Perhaps most troubling are the findings of a Department of Justice report, which shows that there are nearly 71,000 children in residential placement facilities in February 2010.

In order to properly put this in perspective, it is necessary to look at the U.S. prison population in an international context. As the NAACP points out, the United States has about 5 percent of the world’s population, but it has 25 percent of the world’s prison population. Not only is the United States’ prison population disproportionately large, its racial makeup is also heavily imbalanced. Although Hispanics and African Americans make up approximately 25 percent of the total population, they make up close to 60 percent of all American prisoners.

While simply having a massive number of prisoners does not necessarily mean that the existing prisons are overcrowded, when you look at the concentration of these prisoners it becomes clear that overcrowding is clearly an issue for many states. In fact, California’s mass prison release in 2011 was due specifically to over-crowding.  There were so many prisoners that inmates were being packed into gymnasiums. The situation became so bad that the Supreme Court forced the prisoner release because it was literally a health crisis. California is not an isolated case. While it may be the most extreme example, as of 2014, 17 states had prison populations far above the capacity of their facilities. While overcrowding recently caused states to reconsider their justice systems, it also led to the rise of controversial for-profit private prisons.

Sentencing

Overcrowding is largely a product of the United States’ historically severe sentencing rules. The idea of being “tough on crime” swept the nation in the 1980s. Tough on crime policies continued through the 1990s and early 2000s and only now is the trend starting to reverse itself. The severity of these laws varied from state to state. California had some of the toughest policies, enacting a three strikes law in 1994 that created mandatory punishments for repeat offenders. In 2012, California voters passed Proposition 36, which amended the state’s constitution to limit the use of its three-strikes law.

These sentences are known as mandatory minimums. As the name suggests, these policies lead to mandatory sentences of a minimum length for particular crimes, removing much of the discretion that judges have in the sentencing process. According to Families Against Mandatory Minimums (FAMM), “Most mandatory minimum sentences apply to drug offenses, but Congress has enacted them for other crimes, including certain gun, pornography, and economic offenses.” A U.S. Sentencing Commission report found that 14.5 percent of all offenders in 2010 were subject to mandatory minimum penalties–a total of 10,605 prisoners.

What’s Next?

While there are some who fear that releasing so many prisoners, especially at the same time, will lead to a surge in crime, the numbers suggest otherwise. In the California mass release, only auto thefts increased after 30,000 of the state’s inmates were released. Furthermore, a Stanford University study, which involved 1,600 prisoners released when California changed its three strikes law, found a remarkably low recidivism rate. Prisoners released after the three-strikes law changed had a recidivism rate of just 1.3 percent compared to 30 percent for regularly released inmates.

Not all laws are created equally–perhaps the most infamous is the differing penalties for crack cocaine offenses compared to the one for cocaine in its powder form. Originally, the sentencing ratio was 100:1–with those sentenced for crack-related offenses facing much longer prison sentences. While that was reduced to 18:1 with the Fair Sentencing Act in 2010, a disparity remains. The troubling part of this issue is that most people arrested for crack-related offenses were black while most of those who were arrested for cocaine possession were white–reinforcing the racial imbalance in American prisons.

Post-Release Questions 

Another major issue is the question of what former prisoners will do once they get out. A notable concern is recidivism–when a prisoner returns to prison for another crime after his or her initial release. This worry seems warranted in light of a 2005 study by conducted by the Bureau of Justice Statistics (BJS)–57 percent were re-imprisoned after one year, 68 percent by year three, and 77 percent by year five.

It should be noted that the way the Bureau of Justice Statistics records its numbers may not be the best way to understand recidivism. In a recent study, researchers found that recidivism is actually much lower than what is reported. Rates found in the BJS studies likely overrepresent people who are re-arrested after being released from prison.  However, even if these new findings are taken into account, which emphasize that certain offenders have a higher risk of recidivism, the issue remains a notable problem for American prisons.

Moreover, for those who do avoid re-offending, life can be difficult once they leave prison. While there are certainly a number of programs and organizations in place, it is still hard for someone with a criminal record to find a job. In a 2008 study from the Urban Institute, only 45 percent of ex-cons had jobs eight months after leaving prison. The following video discusses what happens to prisoners if and when they can make it out of prison:

Conclusion

The recent release of so many prisoners has reignited old fears that the reintroduction of prisoners into society will lead to a wave of crime. However, the evidence from past releases calls this line of thinking into question. Too many people, especially those of color, face long prison sentences, putting significant strain on American prisons. The current system is also costing the United States an estimated $39 billion each year.

To effectively reduce the size of the American prison population, changes beyond releasing prisoners need to be made. While recent sentencing reform, which led to this prisoner release, is an important step toward reducing the American prison population, it will not solve the issue. In addition to reducing the number of prisoners, policymakers will also have to deal with helping inmates readjust to society when they are released.

Resources

Vox: The biggest prisoner release in U.S. History, explained

Time: What happened when California released 30,000 inmates?

NPR: What You Should Know About the Federal Inmate Release

Newsweek: The Unconstitutional Horrors of Prison Overcrowding

FAMM: What are Mandatory Minimums?

The Economist: America’s Prison Population

CNN: Roughly 6000 Federal Inmates to be released

ACLU: Fair Sentencing Act

National Institute of Justice: Recidivism

Business Insider: Getting a Job after prison

NAACP: Criminal Justice Fact Sheet

Washington Post: Prisons in These 17 States are Over Capacity

Huffington Post: For-Profit Prisons are Big Winners of California’s Overcrowding Crisis

Slate: Why do so Many Prisoners End up Back in Prison? A New Study Says Maybe They Don’t

Michael Sliwinski

Michael Sliwinski (@MoneyMike4289) is a 2011 graduate of Ohio University in Athens with a Bachelor’s in History, as well as a 2014 graduate of the University of Georgia with a Master’s in International Policy. In his free time he enjoys writing, reading, and outdoor activites, particularly basketball. Contact Michael at staff@LawStreetMedia.com.

The post What A Massive Prisoner Release Means for the Criminal Justice System appeared first on Law Street.

The state of New York and the U.S. Department of Justice are now investing millions in testing backlogged rape kits. The grants will be allotted to local jurisdictions across America in hopes of bringing justice for rape victims. New York was the first state to start this process and is at the forefront of the effort. The grants will not only serve to convict rapists, but will also prevent future crimes by putting criminals behind bars.

Overview

Prevalence of Sexual Assault in the United States

It is commonly known that the number of sexual assault crimes are grossly underestimated. Due to the nature of the crime, victims are often reluctant to report what happened to them. But according to a 2010 report by the National Center for Injury Prevention and Control, one in five women in the U.S. will be raped in their lifetimes. Statistics show a sexual assault crime occurs every two minutes, but only 39 percent of those crimes are reported.

What is Rape Kit?

When a victim of sexual assault does report the crime, a sexual assault kit (SAK), also known as a rape kit, is used by a doctor or nurse (usually in a hospital) to preserve possible DNA evidence. Then the SAK is turned over to the police. The process is extremely invasive and can last between four and six hours. First, the victim stands on a large paper sheet, while undressing, in order to contain any stray fibers or hairs that could be used as evidence. According to ENDTHEBACKLOG, the examiner collects biological evidence from the victim’s “saliva, blood, semen, urine, skin cells and hair by taking swabs of the victim’s skin, genitalia, anus and mouth, scraping under the victim’s fingernails and combing through the victim’s hair.” The victim is also photographed from head to toe to document any and all injuries. In order to preserve evidence, victims are asked to not eat, drink, or urinate until the exam in over.

Generally, a state SAK will include: Detailed instructions for the examiner, forms for documenting the procedure and evidence collected, tubes and containers for blood and urine samples, paper bags for collecting clothing and other physical evidence, swabs for biological evidence collection, a large sheet of paper, dental floss and wooden sticks for fingernail scrapings, glass slides, sterile water and saline, and envelopes, boxes and labels for each part of the exam.

Some states have highly trained staff to conduct these procedures called Sexual Assault Forensic Examiners (SAFEs) or Sexual Assault Nurse Examiners (SANEs). Not only are they trained on how to be more specifically sensitive to sexual assault victims, studies show that SAKs conducted by SAFEs or SANEs are more consistent and of higher quality. If examiners aren’t extremely careful, the experience could feel like a re-victimization to the patient or the SAK could be inadmissible in court due to mishandling.

After the SAK is completed and given to local law enforcement, DNA from the kit and alleged rapist is entered into the FBI’s national database CODIS (Combined DNA Index System). CODIS allows authorities to track serial rapists across the United States.

Untested SAKs

There are several different reasons for the large backlog of untested rape kits. They may not have been sent to a public or private crime lab in a timely fashion and remain in storage–including police department evidence rooms, crime labs, hospitals, clinics, rape crisis centers–or the SAKS remain at the lab without being processed. Although the exact number of backlogged SAKs across the country is unknown, the numbers found in specific cities are quite staggering. In 2009, 11,000 forgotten SAKs were found in a Detroit police warehouse. In addition, Los Angeles has almost 12,500 backlogged kits, Houston has approximately 6,500, and Memphis has over 12,000.

SAK backlogs have become a significant issue for local police departments, a National Institute of Justice (NIJ) survey of more than 2,000 law enforcement agencies found:

18 percent of unsolved alleged sexual assaults that occurred from 2002 to 2007 contained forensic evidence that was still in police custody (not submitted to a crime lab for analysis).

The NIJ study noted that some SAKs remain in law enforcement custody when the case is a matter of “consent.” In that case, the suspect admits to sexual intercourse, but maintains that is was consensual. A SAK will not shed light on that matter. Cases could have also been dropped, or a guilty verdict was already rendered.

Other reasons are far more alarming. Forty-three percent of the agencies claimed they did not have a computerized system for tracking forensic evidence, either in their inventory or for after it was sent to the crime lab. Nearly 45 percent of the law enforcement agencies admitted that one of the reasons they kept SAKS was that they didn’t have a suspect. And fifteen percent reasoned that the analysis had not been requested by a prosecutor. Three in 10 officers claimed they did not turn in the SAK because they were unsure of its usefulness. Another 11 percent of the agencies claimed one reason they didn’t submit evidence was due to consistent untimely results of the lab, while another six percent claimed the lab wasn’t accepting more evidence because of a backlog. The NIJ study also argues that biases contribute to the problem. For example, SAKs may have gone untested if the victim was a prostitute, a drug user, or was mentally ill.

There are several explanations for the backlog of SAKS, but one thing is clear–law enforcement agencies across the country are not on the same page whether from a lack of training, funding, or personal prejudices.

New Funding

Earlier this month, Vice President Joe Biden, Attorney General Loretta Lynch, and Manhattan District Attorney Cyrus Vance announced that $80 million worth of grants would be invested into radically reducing the number of backlogged SAKs across the United States. In the announcement, Vance said that the state of New York is donating $38 million to 32 jurisdictions in 20 states, while Lynch pledged $41 million to investigate the reasons behind the backlog. “I’m saying today to all the women awaiting justice,” Vance stated, “you are not forgotten.” Together, the funds from Department of Justice (DOJ) and state of New York are expected to help test 70,000 untested SAKs in 43 jurisdictions in 27 states.

Vice President Biden praised the effort saying,

When we solve these cases, we get rapists off the streets… For most survivors, seeing their rapists brought to justice, and knowing that they will not return, brings peace of mind and a sense of closure. The grants we’re announcing today to reduce the national rape kit backlog will bring that sense of closure and safety to victims while improving community safety.

The issue hits close to Biden’s heart; he and Senator Barbara Boxer co-authored the Violence Against Women Act (VAWA) back in 1994. Biden and Boxer condemned the lethargic response from police and prosecutors as well as the skewed attitudes toward violence against women in general.

History has shown a correlation between testing backlogged SAKs and convictions. New York was the first state to eliminate its backlog, testing 17,000 SAKs between 2000 and 2003. It resulted in 49 indictments. The grants will not only prevent future rapes but will give thousands of women across the country the justice they deserve.

Related Legislation

Over the last five years, Congress has passed several laws to address SAK backlogs across the country. The DNA Analysis Backlog Elimination Act of 2000 authorizes the Attorney General to make grants to eligible states in regards to SAK backlogs. The grants are specifically aimed toward the collection, analysis, and indexing of DNA samples in CODIS as well as for increasing state and local lab capacitates. To receive such grants, states must adhere to certain provisions, including the timely delivery of tested SAKs.

In 2013, President Obama signed the Violence Against Women Reauthorization Act. It was the third time the act has been reauthorized. Among other things, the reauthorization addressed new provisions to tackle the rape kit backlog across the country. First, it amended the aforementioned Backlog Elimination Act of 2000 by increasing audit requirements for SAK backlogs, increasing grants, and increasing state and local lab capacities. It expanded the focus of VAWA grants to include fortifying law enforcement and forensic response. The act also required states to minimally allocate “20 percent of funds within the STOP (Services, Training, Officers, Prosecutors) program and 25 percent of funds within the Grants to Encourage Arrest Policies and Enforce Protection Orders program be directed to programs that meaningfully address sexual assault.”

More than ever, states are dedicated to ending their respective SAK backlogs. Colorado, Illinois, and Ohio have all passed legislation to reduce backlogs. Arkansas, Kentucky, Virginia, and Louisiana passed legislation that requires an inventory of untested SAKs. California and Michigan enacted guidelines for processing evidence derived from SAKs. Texas allocated $10.8 million to untested SAKs in its 2014-15 state budget. It is also within a state’s jurisdiction to define statutes of limitation. Some advocates fight for the clock on statutes of limitations to start only once a SAK has been tested, as addressed in this video.

Proponents of this change argue that rapists should never benefit from a SAK that remained untested for so long that the respective crime exceeded a statute of limitation law.

Conclusion

It seems like a number of things need to come together to eradicate the backlog nationwide. For the most effective standards, the United States needs a uniform system of analyzing and indexing evidence in addition to regularly trained teams of trained nurses, doctors, law enforcement, and prosecutors. Funding is also necessary to allow all the different parts of the process to come together effectively. The recent $80 million investment in SAK testing can bring justice and closure to thousands of women.

Resources

Primary

Congressional Research Service: Violence Against Women Act

DOJ: Unanalyzed Evidence in Sexual Assault Cases

Additional

EndtheBacklog: Defining the Rape Kit Backlog

EndtheBacklog: State Respones

EndtheBacklog: What is a Rape Kit and Rape Kit Exam?

EndtheBacklog: Where the Backlog Exists

Govtrack: Summaries for the DNA Analysis Backlog Elimination Act of 2000

Huffington Post: Joe Biden, Loretta Lynch Pledge Millions To Resolve Rape Kit Backlog

National Center for Injury Prevention and Control: Statistics about Sexual Violence

NRC on Domestic Violence: The Effectiveness of Sexual Assault Nurse Examiner (SANE) Programs

Time: Authorities Invest $80 Million in Ending the Rape Kit Backlog

Time: Here’s What Happens When You Get a Rape Kit Exam

Jessica McLaughlin

Jessica McLaughlin is a graduate of the University of Maryland with a degree in English Literature and Spanish. She works in the publishing industry and recently moved back to the DC area after living in NYC. Contact Jessica at staff@LawStreetMedia.com.

The post Rape Kits: New Funding to Bring Victims Justice appeared first on Law Street.

The idea of child labor in the United States sounds absurd. It’s 2015, after all. But the truth is that it’s more common than you may think, especially in the agriculture industry. The U.S. government currently has exemptions in place for the minimum age and maximum work hour requirements for child farmworkers. Hazardous work is prohibited until 18 in other industries, but notable exemptions exist for agricultural companies. Child farmworkers have high rates of injury, are exposed to serious health risks, and often receive few protections, particularly on tobacco farms. Read on to learn more about dangerous, but legal, child labor in the United States.

What is the Current Federal Law?

Loopholes in child labor laws for the agriculture industry stem from the 1938 Fair Labor Standards Act (FLSA), last revised in 2007. For all nonagricultural sectors, the FLSA restricts the hours children under 16 can work and prohibits children under 18 from work that is considered dangerous. In those industries, for example, children cannot work more than three hours on school days or more than eight hours on nonschool days.

However, the rules are far more lenient for the agriculture industry. Children under 16 cannot work during school hours, but there are no maximum hour limits beyond that. There is also no limit for working after school or on weekends, and there is essentially no limit for child workers during the summer. Some states place additional hour restrictions on child employment in agriculture.

At age 16, children can perform hazardous work, like operating chainsaws, forklifts, forage harvesters, or power post hole diggers. They can work from a ladder or scaffolding at over 20 feet from the ground and may drive a tractor over 20 PTO horsepower. They can also handle or apply toxic agricultural chemicals and may also handle or use a blasting agent (i.e. dynamite, black powder).

With parental consent, children under 12 can work on farms where workers are exempt from federal minimum wage requirements. Children aged 12 and 13 can be employed with parental consent or on a farm where a parent or guardian is also working. At 14, children can work any agricultural occupation not deemed hazardous by the Secretary of Labor and 16-year-olds can engage in any agricultural occupation, even during school hours. Children of any age may be employed on a farm in any occupation at any time if a parent or guardian owns the business.

Minors do not need working paper or work-permits. Farm workers under 20 years old can be paid $4.25 an hour during the first consecutive 90 calendar days of employment. Lastly, farmworkers of all ages are not subject to the overtime provisions in the FLSA.

Tobacco Farms

In 2014, Human Rights Watch (HRW) conducted a survey, which found that child laborers on tobacco farms face harsh conditions and receive little protections. According to HRW, 90 percent of American tobacco is cultivated in Kentucky, Virginia, North Carolina, and Tennessee. Although exact numbers remain unknown, thousands of child laborers work on these fields every year. Ohio Rep. Mary Kaptur and several British Members of Parliament toured a North Carolina tobacco farm last year. An article from The Hill summarized the report from their visit noting the “squalid conditions, lack of sanitation, hot water, flushing toilets and basic health services” that tobacco farm workers face. According to the HRW report, child laborers often work 50 to 60 hours a week in bad conditions and extreme heat.

Injury Risks

Machinery poses a real risk to child farmworkers. According to a 2013 study from the National Institute for Occupational Safety and Health (NIOSH), the agriculture industry accounts for the largest number of work-related deaths. NIOSH reported that the fatality rate for child farm workers is four times greater than that of any other industry and that two-thirds of farm deaths occurred among children 16 years old and under. According to the study:

Young worker deaths in agriculture are noteworthy. In addition to accounting for the largest number of deaths of any industry, previous research has suggested that the fatality rate is about four times greater than for youth working in other industries [Barkume et. al. 2000, Hard and Myers 2006] and comparable to the risk for young and middle-aged workers in agriculture. Nearly 2/3rds of the deaths in agriculture occurred among youth less than 16 years of age [Windau and Meyer 2005]. Nearly 60% of the deaths of youth in agriculture occurred on family farms. Farm family workers accounted for nearly 25% of all young worker deaths from 1998 to 2002.

Human Rights Watch also reported that more than 1,800 children working on farms in 2012 received non-fatal injuries from  sharp tools and machines. In 2010, two teenagers died trapped in a grain bin. One 16-year-old Tennessee worker, interviewed by Human Rights Watch, remembered an incident saying, “I cut myself with the hatchet.… I probably hit a vein or something because it wouldn’t stop bleeding and I had to go to the hospital…. My foot was all covered in blood.” Another 16-year-old said that he lost two fingers in an accident involving a mower.

Health Risks

Another alarming aspect is the health risks that workers on tobacco fields may encounter. Child laborers under 16 may be free from operating the most dangerous machinery, but they are exposed to toxic pesticides and risk nicotine poisoning. You have to be at least 18 to buy cigarettes, but not to cultivate tobacco. According to Margaret Wurth from Human Rights Watch, “as the school year ends, children are heading into the tobacco fields, where they can’t avoid being exposed to dangerous nicotine, without smoking a single cigarette.”

Child laborers interviewed by Human Rights Watch also reported working while nearby field were sprayed with chemicals. These pesticides can cause cancer, damage to the nervous system, and issues with reproductive health. Public health experts  have linked nicotine exposure in adolescents with mood disorders and permanent cognitive deficits.

A number of the children interviewed by HRW exhibited signs of acute nicotine poisoning, also known as Green Tobacco Sickness. Side effects include nausea, vomiting, dizziness, headaches, loss of appetite, and sleeplessness. Others also reported difficulty breathing, skin rashes, and irritations to the mouth and eyes.

What is being done?

Recent attempts at reform have been futile. Although countries across the globe, like Brazil and India, prohibit children under the age of 18 to work on tobacco fields, the United States does not.

In 2011, during President Obama’s first term, former Secretary of Labor Hilda Solis proposed banning workers under the age of 16 in the tobacco fields–ridding the FLAS of many of its exemptions. Her plan included stricter regulations for “agricultural work with animals, pesticides, timber, manure pits, and storage bins.” It also proposed safety measures for young farmworkers.

However, powerful opposition from farm conglomerates emerged. Montana Representative Denny Rehberg lamented the consequences when “big-city bureaucrats try to craft policies for rural America.” Farmers also complained that it would prevent their children from contributing to chores, even though Solis suggested an exception regarding farmers’ children. State legislators responded by drafting bills asking respective Congressional delegates to oppose the proposed changes to child labor exemptions. The successful lobbying campaign resulted in all the proposals being dropped and the Obama administration promising to abandon the issue indefinitely.

Another legislative attempt to help child laborers is Representative Lucille Roybal-Allard’s Children’s Act for Responsible Employment (CARE Act). Initially introduced in 2001, the CARE Act has been reintroduced in several sessions of Congress over the past decade, most recently in June. The CARE Act standardizes child labor protection in agriculture with every other industry.

Not only would the CARE Act revise current child labor law exemptions, it would increase and establish criminal penalties for child labor violations. The bill currently sits in the House Committee on Education and the Workforce.

The Children Don’t Belong on Tobacco Farms Act, co-authored by Illinois Sen. Dick Durbin and Rhode Island Rep. David Cicilline, is the most recent attempt to alter the current laws. Although the bill doesn’t prohibit children from tobacco fields, it limits the type of work that can be performed. Children under eighteen would be banned from direct contact with tobacco plants or dried tobacco leaves. Like other legislation attempting to reform these laws, the bill has not moved past its assigned committee.

Conclusion

The evidence shows that dangerous child labor conditions are not exclusively third world problem– it is prevalent here in the United States. Although multiple attempts at reform have been made, they have either failed or stalled in Congress. Significant progress could also be made without major changes to existing laws. Removing exemptions for the agriculture industry could create uniform standards for the employment of children in all industries. However, such efforts seem unlikely to succeed as powerful interests have managed to block recent efforts.

Resources

Primary

Human Rights Watch: Child Workers in Danger on Tobacco Farms

U.S. Department of Labor: Child Labor Requirements In Agricultural Occupations Under the Fair Labor Standards Act

Trade Union Group: A Smokescreen for Slavery

Additional

The Atlantic: How Common Is Child Labor in the U.S.?

CNS News: Farm State Outrage Intensifies Over Labor Dept. Proposal to Ban Children From Doing Some Chores on Farms 

Congress.gov: CARE Act of 2013

The Hill: Back to School – Or Back to the Fields? 

The Hill: Democrats Want Children Off Tobacco Farms

The Nation: Child Labor in the USA

NCBI: Short- and Long-Term Consequences of Nicotine Exposure during Adolescence for Prefrontal Cortex Neuronal Network Function

NIOSH: Health and Safety of Young Workers

The United States Department of Labor: US Labor Department Proposes Updates to Child Labor Regulations

Editor’s Note: This post has been updated to clarify the history of the CARE Act.

Jessica McLaughlin

Jessica McLaughlin is a graduate of the University of Maryland with a degree in English Literature and Spanish. She works in the publishing industry and recently moved back to the DC area after living in NYC. Contact Jessica at staff@LawStreetMedia.com.

The post Do Child Farm Workers Have Enough Protections? appeared first on Law Street.

Does society perpetuate rape culture? Sadly, this idea has been proven over and over again. We keep asking the question and receiving the same answer: Yes. We saw it in the case of Bill Cosby. It took evidence of Bill Cosby blatantly admitting his crimes before a majority of the public believed he was guilty of raping and drugging women. For some people, it was just easier to believe the victims wanted their 15 minutes of fame than admit that the previously beloved actor committed such crimes. We saw it again in the protection of reality TV personality Josh Duggar it was revealed that he had a history of molesting girls including his sisters, and in the December retraction of Rolling Stone’s UVA campus gang rape story. The latest news brings us another story involving an alleged rape accusation: the Daily Beast reported on July 27 that Ivana Trump, ex-wife of  Donald Trump, accused him of rape during their marriage over 30 years ago. The controversy brings light to a highly controversial issue: marital rape. Even today there are still those who deny you can rape a spouse. So exactly what is the history and legality of marital rape in the United States?

Marital Rape in the News

According to the Daily Beast,  during the Trumps’ divorce proceedings Ivana claimed Donald raped her. She later clarified that she felt “violated” by the incident, rather than raped “in the criminal sense.” She further elaborated, “[O]n one occasion during 1989, Mr. Trump and I had marital relations in which he behaved very differently toward me than he had during our marriage. As a woman, I felt violated, as the love and tenderness, which he normally exhibited towards me, was absent. I referred to this as a ‘rape…’” Terms of the couple’s divorce agreement prohibit her from speaking on the marriage unless authorized by Donald himself. The Daily Beast cites a 1990 deposition from the Trumps’ divorce as well as the book “Lost Tycoon: The Many Lives of Donald J. Trump.”

After becoming aware of the report, Ivana labeled the story “totally without merit” in a statement to CNN. She also called her ex-husband and her “best friends” and remarked that Trump would make “an incredible president.” The authenticity of the story is in question. Ivana is denying it. The Daily Beast calls her recent statements ironic as the story is written “based on her own words.”

Regardless if Ivana’s words were misinterpreted or she is dishonestly recanting a story, the means by which Donald’s lawyer Michael Cohen responded to the allegations is appalling and shocking. Cohen threatened Daily Beast reporter Tim Mask and denied the existence of marital rape itself.

You write a story that has Mr. Trump’s name in it with the word ‘rape,’ and I’m going to mess your life up … for as long as you’re on this frickin’ planet … you’re going to have judgments against you, so much money, you’ll never know how to get out from underneath it…You’re talking about the front-runner for the GOP, presidential candidate, as well as a private individual who never raped anybody. And, of course, understand that by the very definition, you can’t rape your spouse.

Contrary to Trump’s lawyer’s statement, one can rape a spouse. All 50 states and the District of Columbia have laws barring nonconsensual sex with a spouse.

What is Marital Rape?

While rape is all non-consensual sexual intercourse, marital rape is specifically between spouses. It has been illegal in all 50 states and Washington D.C. since 1993. Before then, “marital exemption” allowed a person to a rape a spouse without fear of legal repercussions. Every state had a “marital exemption” law until 1975 when South Dakota became the first state to drop it. North Carolina was the last.  Its elimination is chiefly thanks to the women’s rights and equality movement. However, it is still significantly harder to prove marital rape than rape by any other.

Statistics

According to HealthResearchFunding.org, 30 percent of adult rape cases were committed by a husband, common-law partner, or boyfriend, while 29 percent of all sexual assaults were perpetrated by a husband or lover. When there is a precedent of domestic violence in a marriage, the chance for marital rape increases by 70 percent. Only around 3.2 percent of victimized women report the crime when it is committed by someone they know. An alarming 69 percent of women who’ve endured spousal rape will be raped more than once. Lastly, 18 percent of spousal victims claim their children saw the incident.

Cases of Opposition to Marital Rape

You would think, at least since 1993, that the door is closed on the validity of the existence of marital rape, but somehow, it still seems to be a gray area where it should be black and white: non-consensual sex is always wrong. Trump’s lawyer’s remarks are just the latest in a history of disturbing events.

Michigan 1987

Michigan resident Rosanna Hawkins was attacked and raped by her estranged husband, armed with a six-inch knife. She filed for divorce a month before the incident and had been staying with her sister. The attacker, Eugene, was sentenced by Oceana County Circuit Court to 27 to 92 years in prison. However, in a 3 to 0 vote, the Michigan Court of Appeals overturned the verdict in 1987.

Why? At the time, Michigan only recognized marital rape as a crime if the husband and wife were living apart and one member had filed for divorce. The court also required that a person live in the state for at least six months before filing for divorce. In Hawking’s case, she had only returned to Michigan a week before she filed, deeming it invalid.

Virginia 2002

In a 2002 legislative debate, Virginia delegate Dick Black stated,

I don’t know how on earth you could validly get a conviction in a husband-wife rape when they’re living together, sleeping in the same bed, she’s in a nightie and so forth. There’s no injury, there’s no separation, or anything.

If she says no, it doesn’t matter where she is sleeping or what she is wearing. This is the same man who called birth control “baby pesticides” in 2004.

Indiana 2014

Fast forward to the current day. David Wise repeatedly drugged and raped his wife, Mandy Boardman, for years during their marriage. Boardman’s suspicions were confirmed when she found video on Wise’s cellphone. She went to the police in May 2011. After the ensuing trial, a jury convicted Wise of six felony sexual assault charges. He had told the jury that, “She was snippy and it made her nicer when he drugged her.” The prosecutor asked for a 40-year prison sentence.

Wise will not spend one day in jail. Marion Superior County Judge Kurt Eisgruber sentenced Wise to 20 years, with eight years suspended and 12 years spent in home confinement. It only gets worse. Boardman told The Times “[The judge] told me I needed to forgive my attacker and I needed to let my attacker walk. It was a punch to the gut from the justice system …”

What are the Laws Regarding Marital Rape?

As previously stated, marital rape is illegal in all 50 states and the District of Columbia. Generally speaking, marital rape is penalized like a rape committed by any other person. Fines can range between several thousand dollars to over $50,000. Prison terms also range from several years to life in prison without parole. Often, sentences are based on the violence of the crime. Surprisingly enough, there are still certain states that have variances in the law regarding spousal rape compared to other types of rape. In some states, marital rape is charged under a different section of criminal code, given shorter reporting periods, held to stricter degrees of force/threat, and penalized differently.

Ohio and Oklahoma

Ohio state law has two distinct subsections for rape. Outside the confines of marriage, sex is non-consensual if the offender uses a “drug, intoxicant, or controlled substance” to alter the “mental or physical condition” of the victim; however, this circumstance does not apply to spouses living together. There must be “force or threat of force.” Essentially, it is legal for a husband to drug and take advantage of his wife. Oklahoma has similar legislation, requiring “force or violence” to be considered marital rape. Oklahoma also defines sexual intercourse as rape when the victim is unconscious, so long as it is not the spouse.

South Carolina and Idaho

South Carolina has even stricter laws. Sexual intercourse between spouses is non-consensual when “the threat of use of a weapon” and/or “physical violence of a high and aggravated nature” exists. In contrast, a weapon isn’t required in prosecuting “criminal sexual misconduct” outside the confines of marriage in South Carolina. Furthermore, the crime must be reported to law enforcement within 30 days of the event in order to investigate. In Idaho, “[n]o person shall be convicted of rape for any act or acts with that person’s spouse” except if the spouse struggled and was “overcome by force or violence,” threatened with violence, or drugged.

Virginia

In Virginia, court-approved marital and/or personal counseling can be substituted for fines and prison time in marital rape cases. The victim must agree and the option is available only once. This leaves the door open, however, for the offender to pressure the victim into approving the alternative. This option is not open to other cases of rape.

 Conclusion

Just last month, state legislators in Ohio embarked on a mission to remove the archaic word usage of their marital rape laws. Hopefully this is a sign of good things to come for the rest of the states that still believe spousal rape is different from any other rape. No is no. Regardless, there are still hurdles to be overcome and it’s wrong to be complacent with mediocre law writing.

Resources

Daily Beast: Marital Rape is Semi-Legal in Eight States

WomenLaw.org: Marital/Partner Rape

Daily Beast: Ex Wife: Donald Trump Made Me Feel ‘Violated’ During Sex

HealthResearchFunding.org: 21 Amazing Spousal Rape Statistics

Jezebel: A Brief Overview of Dudes Who Are Pretty Sure You Can’t Rape Your Wife

Jezebel: Wife Can’t Be Raped if She Wears a Nightie, Says Politician Named Dick

LA Times: No Prison Time For Indiana Man Convicted of Drugging, Raping Wife

The New York Times: Marital Rape

NOLO: Marital Rape Laws

Politico: Ivana Trump Denies Accusing Donald Trump of Rape

Jessica McLaughlin

Jessica McLaughlin is a graduate of the University of Maryland with a degree in English Literature and Spanish. She works in the publishing industry and recently moved back to the DC area after living in NYC. Contact Jessica at staff@LawStreetMedia.com.

The post Marital Rape in the U.S.: What Are the Laws? appeared first on Law Street.

Though positive changes are on the horizon for certain aspects of immigration law affecting transgender asylum seekers, the language that courts use to process transgender asylum cases extends beyond the letter of the law itself. The language with which courts deal with transgender individuals and issues can fundamentally prevent transgender asylum seekers from gaining safety in the United States.

How does the language of asylum courts impact the case law and outcomes of transgender asylum seekers?

Transgender Asylum Case Law: A Legal Overview

Asylum seekers who are lesbian, gay, bisexual, or transgender (LGBT) face particularly strong obstacles in their application processes. Some protections have been added to immigration case law that have increased protections for LGBT asylum seekers. In 1990, lesbian women and gay men gained protection under immigration law as a “particular social group” (PDF). This means that, in a similar way to how Title IX protects women from gender-based discrimination within the United States, lesbians and gay men became a likewise “protected” group that can be afforded asylum due to homophobic discrimination and violence in their countries of origin.

The dangers of language that is not trans-inclusive are extremely high for trans individuals seeking asylum.  In 2000 and again in 2004, immigration courts recognized people that they term “gay men with female sexual identities” as a “particular social group,” therefore providing that these people can be granted asylum protections if they are persecuted for being a “gay male with female sexual identity” in their country of origin. However, courts misgender many asylum seekers when they label them as such; by refusing to acknowledge the chosen names and accurate (female) pronouns for transgender women seeking asylum, the courts only provide protection for trans women seeking asylum insofar as they are misidentified as “gay men with female sexual identities.” This invalidating language refuses to accept trans women’s status as women, and makes it very difficult for them to make it clear to the court that the violence they face in their country of origin is because of their identity. Because of this refusal to use trans-affirmative language, courts subject transgender asylum seekers to a great deal of added abuse. Sure enough, until very recently, the U.S. government locked up transgender women seeking asylum with men, leaving these women vulnerable to extreme abuse and violence. This violence mirrors the transphobic violence that asylum seekers were trying to flee.

Case Study: Hernandez-Montiel v. INS

Misgendering language in immigration courts does even more than creating an indirectly damaging environment. This language creates strong precedent for transgender individuals to lose their asylum cases because of the uncertainty that misgendering causes. Imprecise and inaccurate language in the court can create tremendous and unnecessary obstacles for advocating for transgender immigrants seeking asylum.

In the case of Hernandez-Montiel v. INS (2000), Hernandez-Montiel applied for asylum on the basis of being a “gay man with female sexual identity” who had suffered past persecution in Mexico. The BIA (Board of Immigration Appeals) denied the request. Hernandez-Montiel applied for asylum at age sixteen after being raped and harassed by police, and though this testimony was found to be credible, the BIA denied the asylum application because the Immigration Judge (IJ) identified Hernandez-Montiel’s social group as “homosexual males who wish to dress as a woman [sic],” which did not at the time qualify as a particular social group.

The 9th Circuit court overturned the BIA’s judgement, finding that “gay men with female sexual identities” such as Hernandez-Montiel, comprise a particular social group for the purposes of asylum cases, and that the sexual assaults that she experienced at the hands of police officers were “on account of” her membership in that group. The 9th Circuit decision also stated that “Geovanni is not required to prove that his persecutors were motivated by his sexual orientation to the exclusion of all other possible motivations.” Therefore, the court granted the asylum petition. This ruling is significant because it establishes the above-discussed precedent that “gay men with female sexual identities” who are persecuted on the grounds of this identity are eligible for protection under U.S. immigration law.

While this may seem like an unambiguous victory for trans women, this language causes a lot of confusion for advocates of transgender asylum seekers. For example, Lambda Legal–an advocacy organization for LGBT people–identified Hernandez-Montiel in a press release as an “effeminate gay man” and, in tandem with the courts, used male pronouns to refer to Hernandez-Montiel. However, specifically transgender advocacy organizations identified Hernandez-Montiel as a trans woman.

This language-based inconsistency and inaccuracy not only places Hernandez-Montiel and others at risk for being imprisoned incorrectly while awaiting decisions, but it ensures that transgender organizations cannot properly advocate for people who are being abused in the system.

Case Study: Reyes-Reyes v. Ashcroft

In a similar case four years later (2004), asylum applicant Reyes-Reyes–referred to by the court by her given name, Luis–was denied entry into the United States because of the extreme misgendering and refusal to acknowledge Reyes-Reyes’s status as a woman that continually manifested in the language of the court’s proceedings. In this 9th Circuit case, Reyes-Reyes, a citizen of El Salvador, applied for asylum, withholding of removal (so that she could stay in the United States longer, without being forced back to El Salvador), and relief under CAT (the Convention Against Torture) for fear of persecution based on Reyes-Reyes’s sexuality and gender expression. The Immigration Judge denied all of these applications, and the Board of Immigration appeals upheld these denials.

Reyes-Reyes fled El Salvador as a teenager 25 years ago for fear of persecution. The court characterizes Reyes-Reyes as “a homosexual male with a female sexual identity… Although Reyes-Reyes has not undergone sex reassignment surgery, he has a characteristically female appearance, mannerisms, and gestures… He has a ‘deep female identity’ and has gone by female names such as Josephine, Linda, and Cukita.” Using inappropriate male pronouns and insisting that Reyes-Reyes is gay instead of transgender, the court acknowledged that Reyes-Reyes has a history of being violently persecuted in El Salvador, having been kidnapped, raped, and beaten “because of his sexual orientation” at age 13. Reyes-Reyes told no one for fear of further brutality, and the Immigration Judge (IJ) focused deeply on this failure to report the crimes. The IJ determined that Reyes-Reyes had not established that the government of El Salvador, or anyone acting on the government’s behalf, would want to do Reyes-Reyes harm upon return. Because of this, it was ruled that Reyes-Reyes had failed to establish past persecution for the purposes of withholding of removal. Upon appeal to the BIA, Reyes-Reyes obtained pro bono representation and presented information from human rights organizations, government, and news sources detailing El Salvador’s hostile political and cultural climate “towards male homosexuals with female identity.” This information included an affidavit from an expert on Latin American culture. The BIA summarily affirmed the IJ’s denials.

The 9th Circuit court remanded these decisions, but not on the grounds that the court was wrong about Reyes-Reyes’s identity. Rather, the court remanded the Immigration Judge and Board of Immigration Appeals’ decisions to deny asylum due to incorrectly applied burdens of proof. This means that the legal precedents of misgendering Reyes-Reyes are still firmly established, including the assertion of her being a “male homosexual with female identity.”

In this case, too, Reyes-Reyes’s identity was interpreted differently by different sources because of the transphobic language used by the court to describe this asylum applicant. The LA Times identified Reyes-Reyes as a trans man, while the advocacy organization Immigration Equality identified Hernandez-Montiel as a trans woman.

Future of Trans Asylum Cases

Despite certain positive changes in immigration law regarding transgender asylum seekers, transgender detainees are still at extreme risk for abuse and violence while being detained in the U.S. Because of the courts’ transphobic language–the refusal to acknowledge the proper names and gender pronouns of transgender applicants, insisting on calling trans women “gay men with female sexual identities”–transgender asylum applicants are placed at increased risk of being denied asylum and being exposed to extreme violence.

Resources

Primary

University of Minnesota Human Rights Library: Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000)

Additional

 Center for American Progress: The Plight of Gay and Transgender Women Seeking Asylum

Immigration Equality: Asylum Law Basics

Bitch Media: Crossing Borders: LGBT People in Immigration Detention Are Often Targets For Abuse

Advocate: Transgender Immigrants to be Detained According to Gender Identity

Fusion: Why Did the U.S. Lock Up These Women With Men?

Lambda Legal: Mexican Gay Man Seeking Asylum Appeals to the Ninth Circuit

Transgender Asylum Weekly: Hernandez-Montiel v. INS

FindLaw For Legal Professionals: Reyes-Reyes v. Ashcroft

LA Times: Transgender Man’s Case Tests U.S. Immigration Law

Jennifer Polish

Jennifer Polish is an English PhD student at the CUNY Graduate Center in NYC, where she studies non/human animals and the racialization of dis/ability in young adult literature. When she’s not yelling at the computer because Netflix is loading too slowly, she is editing her novel, doing activist-y things, running, or giving the computer a break and yelling at books instead. Contact Jennifer at staff@LawStreetMedia.com.

The post The Language of Asylum Law: Obstacles for Transgender Asylum Seekers appeared first on Law Street.

Long-term healthcare institutions for the elderly are now more common than ever in America. There are thousands of nursing homes and residential-care facilities dispersed across the country. As a society, we rely on and trust these establishments to medically treat and handle with care our aging loved ones. Even though these places are instrumental to our healthcare system, nursing home regulations haven’t been widely updated in more than 30 years. That is until this month. The Obama Administration has set out to reform the rules required of nursing homes to qualify for Medicare and Medicaid. As they stand today, the rules aren’t up to speed with the innovative scientific advances and administration of health care. There are also alarming reports of abuse and neglect inside the system. But with promising new laws on the horizon, nursing home healthcare may be getting a makeover.

History of Nursing Homes in the United States

The normalization of nursing homes is a relatively recent development. Demographic and political shifts have created a standard use of these facilities. For many years, elderly citizens turned to almshouses, charitable housing for the sick, impoverished, inebriated, mentally ill, and homeless. The elderly lived in almshouses for a variety of reasons including poverty, disability, sickness, and/or separation from families. The Industrial Revolution started to bring more people into the cities and spread families apart. Many singles no longer had extended families to rely on for support.

At the turn of the nineteenth century, women’s and religious groups started to create specific housing for the elderly. Boston’s Home for Aged Women was created in 1850. Institutions like this generally required substantial entrance fees and certificates of good character. They were a marked upgrade and alternative to the almshouses. Many of these women were widowed or single, and had lived their lived as upstanding citizens. These requirements limited shelter to a small population; the impoverished still mostly resided in almshouses.

As time continued, almshouses started to exclusively aid the elderly. Younger people were removed and sent to specific-needs organizations like orphanages, hospitals, or insane asylums. In 1880, 33 percent of almshouse residents were elderly. By 1923, that number soared to 67 percent.

The almshouses were not places of luxury, but rather were found in extremely poor conditions. In 1992, Abraham Epstein, advocating for pensions, wrote that the almshouse “stands as a threatening symbol of the deepest humiliation and degradation before all wage-earners after the prime of life.” The enactment of the 1935 Social Security Act was in large a movement to remove almshouses altogether; however, elderly residents weren’t solely there due to poverty. Others required daily nursing and medical attention. The money received through pensions was often used to gain access to independent facilities that could provide medical care; however, conditions were not necessarily improved.

In 1955, the Medical Facilities Survey and Construction Act allowed federal support to those in public facilities. Both private and public nursing home residents received federal support. In 1965, Medicare and Medicaid was established, furthering the growth of nursing home facilities. Between 1960 and 1976, nursing homes grew by 140 percent, with 79 percent still private institutions. Through investigations conducted through the 1970s, it was concluded that the conditions were still subpar and not far enough removed from the stigma of historic almshouses.

The 1970s saw the first real regulations for nursing homes. The Office of Nursing Homes Affairs was established in 1971 and authorized to administer nursing home standards. Social Security reforms in 1972 “established a single set of requirements for facilities supported by Medicare and for skilled-nursing homes that received Medicaid.” A plethora of amendments to older acts were enacted as well.

By 2000, nursing home care became a $100 billion industry. Although the standard of care has dramatically increased since the days of the almshouse, it is time for a new round of regulations. The video below, created by the Common Wealth Fund, joins in the effort to improve nursing home quality care.

Nursing Home Care Today

Statistics

There are five, main long-term healthcare services: home health agencies, nursing homes, hospices, residential care communities, and adult day service centers. Approximately 8,357,100 people receive support from these services annually. Nursing homes alone account for 1,383, 700  people in the group, and 63 percent of those are age 65 and older. In 2000, 15 million people required long-term care. Due to Baby Boomers, that number is projected to rise to 27 million in 2050.

For those that reach the age of 65, 69 percent will acquire a disability before they die. And 35 percent will enter a nursing home at some point. One in every eight people over the age of 85 resides in an institution.

Financial Stats

A 2013 report estimates that between $210 and $306 billion is spent on long-term care per year. Most pay a majority out of pocket for assisted living, while Medicaid pays a majority for long-term nursing care and Medicaid pays for a majority of hospice care and short-term skilled nursing facilities. Almost one-fifth of the elderly community will pay more than $25,000 in out-of-pocket costs before they die. And in 2012, 14.8 percent of those over 65 were reported below the poverty line. This is even more significant as the private-pay prices for a private or semiprivate room in a nursing home grew by four percent in 2002. It grew another 4.5 percent in 2012. Lastly, Medicaid spent $83.8 billion on long-term care services in 2003, amounting to approximately one third of all Medicaid expenditures.

Proposed Regulation

There are a host of reasons why the Obama Administration has decided to tackle nursing home care regulations. First and foremost, current regulations don’t consider the advances in science and health care for the elderly. As previously stated, long-term care regulations haven’t been updated in nearly 30 years–consolidated Medicare and Medicaid requirements for long-term care facilities were set in 1989, and haven’t been updated since 1991. Science has seen invaluable progress since then. New proposals are also significant in light of reports over the last decade finding varying degrees of neglect and abuse among nursing care facilities. At the core of it all, current regulations aren’t up to par.

Highlights

The proposal bans facilities from hiring any personnel with a record of abuse and/or neglect, and develops policies that target abuse and/or neglect. Nurses would be trained in preventing elder abuse. Although there isn’t an assigned patient-to-nurse ratio, facilities will have to report staffing levels to Medicare officials for review. Low staffing is a common reason stated by those in the field why patients with dementia are given inappropriate and potentially dangerous antipsychotic drugs. The regulations would also limit the amount of antibiotic and antipsychotic drugs administered, toughen infection control, and reduce hospital readmissions.

It also suggests a baseline care program: a comprehensive plan for each resident created within 48 hours of a patient’s arrival. In addition, a nurse aide, a member of the food and nutrition services staff, and a social worker would be added to those involved in the development of the care plan. The proposal also covers “electronic health records and measures to better ensure that patients or their families are involved in care planning and in the discharge process.”

There are a number of revisions directed toward the personal happiness of the residents. The proposal includes open visitation (similar to hospital regulations) and the ability for residents to choose roommates as these facilities often double as homes. It also mandates the availability of “suitable and nourishing alternative meals and snacks” for residents who would like to eat outside the scheduled meal times. These types of policies create a more comfortable and home-like atmosphere.

A major concern in the long-term care community is enforcement. Toby Edelman, a senior policy attorney at the Center for Medicare Advocacy, states that “the biggest problem is that the rules we have now are not enforced. We have a very weak and timid enforcement system that does everything it can to cajole facilities into compliance instead of imposing penalties for noncompliance.” The proposed rules should allow violations to be more easily detected.

Conclusion

As the proposal states, “many of the revisions are aimed at aligning requirements with current clinical practice standards to improve resident safety along with the quality and effectiveness of care and services delivered to residents.” This is a way to ensure that every facility across the nation is legally required to provide equal quality of care to every patient. It is alarming that a comprehensive update to modernize the nursing home care system hasn’t been done in so many years. Residents want to feel safe and happy in their environment, and their families want to feel that their aging elders are healthy and receiving the best care possible.

Resources

Primary

Federal Register: Medicare and Medicaid Programs

Additional

CDC: Long-Term Care Services in the United States

Family Caregiver Alliance: Selected Long-Term Care Statistics

Kaiser Health News: New Regulations Would Require Modernizing Nursing Home Care

Net Industries: Nursing Homes

U.S. Legal: The History of Nursing Homes

White House: Administration Announces New Executive Actions to Improve Quality of Care for Medicare Beneficiaries

Jessica McLaughlin

Jessica McLaughlin is a graduate of the University of Maryland with a degree in English Literature and Spanish. She works in the publishing industry and recently moved back to the DC area after living in NYC. Contact Jessica at staff@LawStreetMedia.com.

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Executive control over declaring war or starting military missions has long been a controversial topic. According to the U.S. Constitution, only the legislative branch can order military attacks. Article I, Section 8, Clause 11, sometimes called the War Powers Clause, declares that Congress has the power “to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”

Despite Congress having authorization authority, many presidents have used their executive powers to send soldiers into battle without an official declaration of war. This has been done in order to quickly activate military forces until Congress has time to pass funding and other approval measures. One might think that this violates the Constitution and has the president undermining Congress. So what powers does the president have in commanding military operations?

A Complicated History

Due to the process of checks and balances, Congress and the president both have roles in military actions. Congressional approval is needed to declare war, fund armed missions, and make laws that shape the execution of the mission. The president has the power to sign off on or veto the declaration of war, just like on other congressional bills. The president is also the Commander-in-Chief and oversees the mission once Congress has declared war. So in short, if the president vetoes a congressional declaration of war, Congress can override the veto with a two-thirds vote in both the House and the Senate, and still force the president to control military action he does not support.

For more than 200 years presidents have asked Congress for approval of war, but many presidents have wanted to bypass Congress to put their own military operations into place. It wasn’t until the Japanese attack on Pearl Harbor in 1941 that Congress passed the War Powers Act of 1941, which gave the executive branch more power over military interventions and homeland protection, including ordering war participation from independent government agencies, and expurgating communications with foreign countries. These powers lasted until six months after the military operation. The Second War Powers Act was passed the following year, which gave the executive branch more authority overseeing War World II operations. It was this act that allowed the U.S. to relocate and incarcerate more than 100,000 Japanese Americans.

Presidents used the War Powers Act numerous times over the next 20 years. Neither the Korean or Vietnam Wars were technically wars, but were military interventions in intense foreign conflicts because neither of them were passed as a declaration of war. This angered legislators who believed the president had too much control of the military. In response, they passed the War Powers Resolution of 1973, which President Richard Nixon vetoed arguing that it undermined his role as Commander-in-Chief; however, his veto was overridden by Congress.

What does the Resolution do?

The resolution extends the president’s power by allowing him to conduct military operations without congressional approval, but there are limits. The War Powers Resolution allows the president to send armed forces without congressional approval only if there is an attack on American soil or its territories; otherwise the military intervention would require congressional approval. It also forces the president to notify Congress within the first 48 hours of the mission and forbids armed forces from intervening longer than 60 days, with an additional 30 days to withdraw.

Has the War Powers Resolution been violated?

Since the beginning of the resolution, numerous presidents have put military actions into play without congressional support, sometimes well past the 60-day window. In the 1990s, President Bill Clinton continued the assault on Kosovo past the deadline. In this case, Congress did not directly approve the missions, but approved funding for them.

After the terrorist attacks on September 11, 2001, Congress overwhelming passed a law permitting President George W. Bush to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Support for the invasion of several Middle Eastern countries was high at first, but after years of fighting with no end in sight, approval for the “War on Terror” fell and so did public opinion of Bush’s handling of the war.

In 2011, President Barack Obama faced backlash from Congress and voters who claimed his use of executive powers as Commander-in-Chief were being stretched and that his actions overreached his authority. When the Libyan army started to kill its own citizens for protesting their government, Obama and leaders from several European countries decided to aid the Libyan civilian rebels by enforcing no-fly zones and providing aid for the cause. Because the president put into place a military action on his own, congressional Republicans called foul, saying he overstepped his boundaries by not first getting Congressional approval. The president defended his actions saying that U.S. military involvement did not meet the constitutional definition of a war and that it was not the U.S. that was leading the mission, but the North Atlantic Treaty Organization (NATO). Despite his assertion, in a letter addressed to President Obama, Speaker John Boehner demanded that the president withdraw troops; ten lawmakers from both sides of the aisle filed a lawsuit against the President for not getting congressional approval for the intervention.

Fighting ended on October 31 and NATO ended its operations following the death of Libyan leader Muammar el-Qaddafi. The suit, along with ideas for other potential legal actions, then ceased for the most part, due to dismissal precedent of similar cases.

How do voters feel about President Obama’s intervention?

At its beginning, most Americans were supportive of the president’s intervention in Libya. In March 2011, a Washington Post-ABC poll found that 56 percent of those polled were in favor of the U.S. implementing a no-fly zone across the region in order to protect Libyan rebels from government attacks. While the support for assistance was very high, Americans overwhelming believed that activating troops on the ground was too much, with polls showing disapproval around 90 percent.

Support for the military action was strong in the first weeks, with about 60 percent of Americans supporting the president’s initiatives, but as time marched on without any end in sight, support began to wane. By early June, only 26 percent of those surveyed believed the U.S. should continue the mission, according to a Rasmussen Report poll.

These polls seem to show that Americans don’t like unchecked military actions that go on too long. Does that mean the War Powers Act should be replaced with something that better balances executive actions and congressional approval?

Is repeal of the resolution on the horizon?

Congress has not officially declared war since June 1942 during World War II when it unanimously voted for war against the Axis countries of Bulgaria, Hungry, and Romania. Many lawmakers think that because the U.S. response to foreign conflicts has become quicker due to improvements in technology and intergovernmental military alliances–like NATO–that the War Powers Resolution is no longer needed.

Several members of Congress have suggested the repeal of the War Powers Resolution entirely, or replacing it with a measure that gives the president diminished power. In January 2014, Sen. John McCain (R-AZ) and Sen. Tim Kaine (D-VA) revealed a piece of legislation, the War Powers Consultation Act of 2014, that would replace the resolution and restrict the president’s military power. It would require the president to consult with Congress before using military forces in foreign conflicts and require the president to consult Congress within three days of deployment. It also sought to create a Joint Congressional Consultation Committee that would enforce a dialog between the executive and legislative branches. The act would not apply to humanitarian or covert missions. After the Libyan conflict ended in a substantial NATO victory in October 2011, support for reform fell until military intervention in Syria in 2014.

Conclusion

The definition of war makes it difficult to effectively apply the War Powers Resolution. Does war mean boots on the ground, weaponry assistance, or no-fly zones? This question is hard to answer and is debated with almost every military intervention.

Americans tend to support giving an incumbent president more power over military decisions when citizens are attacked on U.S. soil, and during the early part of missions. Once the mission seems to be dragging on, support and morale fall, and so does congressional support. If a president wants to go rogue on his own, he has to get the job done fast or the missions might fail to maintain support. The War Powers Resolution has helped the U.S. respond to foreign conflicts quickly and without that power many missions may never have been started.

Resources

Primary

Library of Congress: The War Powers Act

Additional

Washington Post: Conditional Support For Libya No-Fly Zone

IBT: Majority of Americans Against Sending Ground Troops to Libya

Washington Post: White House Should be Moderately Worried on Libya

U.S. Senate: Official Declarations of War by Congress

Senator Tim Kaine: Kaine, McCain Introduce Bill to Reform War Powers Resolution

Mike Stankiewicz

Mike Stankiewicz came to Washington to follow his dream of becoming a journalist. The native New Yorker studied Broadcast Journalism and Law and Society at American University. In his leisure time he enjoys baseball, hiking, and classic American literature. Contact Mike at staff@LawStreetMedia.com.

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You may have noticed lately that the prices at your local grocery store have been going up, and we tend to chalk it up to many things: rising gas prices, season, time of the month, or even the moon. Many of us will even pay more to shop in certain stores. When you think of grocery stores that cost a little for the ambience, you might think of Whole Foods. Just last week, the upscale grocery chain hit a rough patch when it was discovered that it has been overcharging its customers by a lot–and it has created problems for the grocery giant.

The Problem With Whole Foods

New York City’s Department of Consumer Affairs (DCA) is investigating the grocery chain for “systemic overcharging for pre-packaged foods” that affected several branches of the store. It was something that they had been monitoring for a long time, and had even warned the stores about; however, they found on multiple trips that there were many problems and incorrect markings.

Some of these problems were outlined in the DCA’s report, including packages that were labeled with heavier weights than they actually were:

• Vegetable platters that were priced at about $20 a package. The packages were all different sizes, averaging about $2.50 over. One package in particular was overpriced by a whopping $6.15.
• Chicken tenders, a staple in many households, were priced at about $9.99 per pound, but were marked up by an average of $4.13.
• Berries, currently in season, were priced at $8.58 a package, but customers were overcharged by $1.15.

These charges were widespread, and though they may only look like a few dollars, they likely added up quickly over time. The DCA concluded that “New York City stores routinely overstated the weights of its pre-packaged products — including meats, dairy and baked goods — resulting in customers being overcharged.”

However, Whole Foods spokesman Michael Sinatra says that the DCA hasn’t actually confronted the store:

Despite our requests to the DCA, they have not provided evidence to back up their demands nor have they requested any additional information from us, but instead have taken this to the media to coerce us.

This isn’t the first time this has happened. Just last year, Whole Foods had to pay an $800,000 fine in California for overcharging customers. So what can we do about this problem?

Rising Prices

The prices of different foods aren’t set by the government, like many think, but instead are a result of supply and demand. While the U.S. government does track prices, they are instead set by the wholesalers and growers of food.

One of the biggest causes of rising grocery costs is the prevalence of drought throughout the United States, especially in California. Drought affects everything from the crops that need water to survive to the cows that eat the grass. However, what the government can do is make sure that grocery stores are truthful when it comes to what they charge–and they can penalize those who don’t fall in line. In fact, that is exactly what they did to Whole Foods, which was fined “$950 for the first violation and up to $1,700 for a subsequent violation. The potential number of violations that Whole Foods faces for all pre-packaged goods in the NYC stores is in the thousands.”

Other Issues

Think the problem of overcharging is limited to just Whole Foods? There are a litany of other offenses that grocery stores have committed. In 2012, the Los Angeles Superior Court handed out a settlement of $1.1 million from Ralphs Grocery Co. because it overcharged its customers at the deli stand.

Some states, like North Carolina, allow for a small over- or under- charge on deli or weighted items. North Carolina allows a 5 percent discrepancy, but that hasn’t stopped the problem of overcharging. In fact, since November 2014, nine stores were fined by the state, including Dollar General, CVS, Target, and Walgreens, according to the North Carolina Department of Agriculture and Consumer Services.

What Can You Do?

Apart from reporting any discrepancies that you think you see to the management of your local grocer, what are some of the things that you can do to keep yourself from being taken advantage of?

There are multiple things you can do to check whether or not you are being charged too much at the grocery store. The New York Department of Consumer Affairs suggests checking your receipt for what can and cannot be taxed. They even offer a quick link to a hot list of items that can be taxed.

The Today Show, which did a whole segment on the charges, suggests that you should actually weigh items yourself just to make sure. Most grocery stores will have electronic scales that are fairly easy to work and will help you out. They also suggest that you should make sure you are paying for the things you actually get, and not things like ice on frozen fish or packaging.

Another suggestion is that instead of focusing on getting your money ready or looking at the candy bar display, you should watch as the cashier rings up your food items. You will catch many mistakes that way, and often they will be corrected without a fight.

Conclusion

At the end of the day, grocery stores are in the same market that everyone else is in: they want to make money. While there are governmental teams out there that can help with these problems, it is largely up to consumers to make sure that everything’s kosher.

When you are at the grocery store, try to be present and pay attention to the things you are purchasing. Understand that sometimes prices will rise and fall, but they should always be around the same price. Don’t be afraid to ask workers if something seems off, as you might just save yourself a few bucks and the company thousands in fines.

Resources

CNN: Whole Foods Accused of Massive Overcharging

New York City Consumer Affairs: Department of Consumer Affairs Investigation Uncovers Systemic Overcharging for Pre-packaged Foods at City’s Whole Foods

Salon: Whole Foods is Ripping You Off (And it Has Been For Years)

Amarillo Globe-News: Several Factors Determine Food Prices at Grocery Stores

Class Action: Court Hands Victory to Workers in Wage and Hour Lawsuit

Fox News: New York City Says Whole Foods is Overcharging Customers

Journal Sentinel: State Fines Four Stores For Overcharging Customers

NY Eatery: City Sting Reveals Whole Foods Has Been Overcharging New Yorkers Since 2010

,Today Show: Not Just Whole Foods: Beware Supermarket Overcharges

Noel Diem

Law Street contributor Noel Diem is an editor and aspiring author based in Reading, Pennsylvania. She is an alum of Albright College where she studied English and Secondary Education. In her spare time she enjoys traveling, theater, fashion, and literature. Contact Noel at staff@LawStreetMedia.com.

The post Is Your Grocery Bill Breaking the Bank? It’s Not Just Whole Foods appeared first on Law Street.

Since 1981, the number of children of incarcerated parents has increased by an extremely dramatic 80 percent. Along with the more than 50 percent increase in the number of incarcerated women–75 percent of whom are mothers–well over half of all adults incarcerated in state and federal prisons today have at least one child under the age of 18.

Though the numbers are grim, they are far from the whole story. How does mass incarceration affect children of incarcerated parents, and how have these children come together to advocate for their needs?

Consequences of Parental Incarceration for Children

Having a parent in prison can have an impact on a child’s mental health, social behavior, and educational prospects. The emotional trauma that may occur and the practical difficulties of a disrupted family life can be compounded by the social stigma that children may face as a result of having a parent in prison or jail. Children who have an incarcerated parent may experience financial hardship that results from the loss of that parent’s income. Further, some incarcerated parents face termination of parental rights because their children have been in the foster care system beyond the time allowed by law.

Unlike children of the deceased or divorced who tend to benefit from society’s familiarity with and acceptance of their loss, children of the incarcerated too often grow up and grieve under a cloud of low expectations and amidst a swirling set of assumptions that they will fail, that they will themselves resort to a life of crime or that they too will succumb to a life of drug addiction.

Children Fighting Back

1. I have the right to be kept safe and informed at the time of my parent’s arrest.
2. I have the right to be heard when decision are made about me.
3. I have the right to be considered when decisions are made about my parent.
4. I have the right to be well cared for in my parent’s absence.
5. I have the right to speak with, see, and touch my parent.
6. I have the right to support as I struggle with my parent’s incarceration.
7. I have the right not to be judged, blamed, or labeled because of my parent’s incarceration.
8. I have the right to a lifelong relationship with my parent.

1. I have the right to be kept safe and informed at the time of my parent’s arrest: (1) Develop arrest protocols that support and protect children; (2) Offer children and/or their caregivers basic information about the post-arrest process.
2. I have the right to be heard when decisions are made about me: (1) Train staff at institutions whose constituency includes children of incarcerated parents to recognize and address these children’s needs and concerns; (2) Tell the truth; (3) Listen.
3. I have the right to be considered when decisions are made about my parent: (1) Review current sentencing law in terms of its impact on children and families; (2) Turn arrest into an opportunity for family preservation; (3) Include a family impact statement in pre-sentence investigation reports.
4. I have the right to be well cared for in my parent’s absence: (1) Support children by supporting their caretakers; (2) Offer subsidized guardianship.
5. I have the right to speak with, see, and touch my parent: (1) Provide access to visiting rooms that are child-centered, non-intimidating, and conducive to bonding; (2) Consider proximity to family when siting prisons and assigning prisoners; (3) Encourage child welfare departments to facilitate contact.
6. I have the right to support as I face my parent’s incarceration: (1) Train adults who work with young people to recognize the needs and concerns of children whose parents are incarcerated; (2) Provide access to specially trained therapists, counselors, and/or mentors; (3) Save five percent for families.
7. I have the right not to be judged, blamed, or labeled because my parent is incarcerated: (1) Create opportunities for children of incarcerated parents to communicate with and support each other; (2) Create a truth fit to tell; (3) Consider differential response when a parent is arrested.
8. I have the right to a lifelong relationship with my parent: (1) Re-examine the Adoption and Safe Families Act; (2) Designate a family services coordinator at prisons and jails; (3) Support incarcerated parents upon reentry; (4) Focus on rehabilitation and alternatives to incarceration.

Led by youth who have had a parent incarcerated, Project WHAT! raises awareness about children with incarcerated parents with the long-term goal of improving services and policies that affect these children.  WHAT! stands for We’re Here And Talking, which is exactly what the team is doing. Over seven million children have a parent on parole, probation, or incarcerated. The program employs young people who have experienced parental incarceration as the primary curriculum content developers and facilitators for trainings.

By directly employing youth in their advocacy efforts, Project WHAT! utilizes both long-term advocacy and direct-action strategies. By striving toward long-term goals–like the ones described above–while offering short-term assistance–immediately empowering youth and children through both their programming and their paid employment opportunities–Project WHAT! is a prime example of youth-led organizing across the country. Indeed, children of incarcerated parents in Michigan have also organized to open their own chapters of Project WHAT!.

So where are we now?

Children of incarcerated parents are uniquely impacted by the criminal justice system, even when they are not, themselves, incarcerated. From emotional and psychological trauma, to increased poverty, to being separated permanently from their parents without parent or child’s consent, mass incarceration devastates many of the children whose parents are incarcerated. However, coalitions of children like Project WHAT! are working to ensure that their needs are met, even if the criminal justice system is not interested in meeting them.

Resources

Osborne Association: Children of Incarcerated Parents: A Bill of Rights

Rhonda L. Rosenthal, PC: Severing the Parental Rights of Inmates

California Watch: Number of Children With Parent in Prison Growing

IndiGoGo: Project WHAT! Building a Youth-Led Movement for Prison Reform in Michigan

Community Works: Project WHAT!

San Francisco Children of Incarcerated Parents: From Rights to Realities

Reporting on Health: Children Who Witness Parent’s Immigration Arrest May Suffer Lifetime Health Consequences

Annie E. Casey Foundation: Children of Incarcerated Parents Fact Sheet

Youth.gov: Children of Incarcerated Parents

Justice Strategies: Children on the Outside: Voicing the Pain and Human Costs of Parental Incarceration

U.S. Department of Health and Human Services: The Effects of Parental Incarceration on Children

Jennifer Polish

Jennifer Polish is an English PhD student at the CUNY Graduate Center in NYC, where she studies non/human animals and the racialization of dis/ability in young adult literature. When she’s not yelling at the computer because Netflix is loading too slowly, she is editing her novel, doing activist-y things, running, or giving the computer a break and yelling at books instead. Contact Jennifer at staff@LawStreetMedia.com.

The post Children of Incarcerated Parents: What Are Their Rights? appeared first on Law Street.

The recent shooting at the Emanuel A.M.E. Church in Charleston, South Carolina opened up a number of old wounds for the country and reinvigorated several dormant concerns that seem to linger in the American consciousness. Chief among these concerns is both racism and America’s lack of gun control laws. While many were quick to put the blame in this case on a twisted, racist individual, there were others who said it was just one more in the litany of examples of the side effects of a culture that enthusiastically embraces guns without any real checks. Read on to learn more about gun control in this country, the role of groups such as the National Rifle Association, and what impact this has on the lives of everyday Americans.

History of Gun Control

What does the Second Amendment actually mean?

Any and all issues concerning guns in the United States start with the Second Amendment. While people associate the amendment with protecting their right to own firearms, the exact wording is as follows: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The amendment was originally designed as a check against the federal government, in essence to protect the states from being overwhelmed by its standing army.

According to former Supreme Court Justice John Paul Stephens, over the years the law has been misinterpreted and manipulated for political gain. Originally it was designed so that people could bear arms as part of a militia in order to protect against the federal government. In other words, these people would own weapons as a function of their status within a militia. In fact, this was the way the law was interpreted for most of American history. But beginning in 2008, in a controversial Supreme Court decision regarding handguns, the amendment was interpreted to owning guns in general, instead of for a purpose. On top of this, the type of weapons protected also expanded. Specifically, in 1939 in a famous case cited by Stephens, sawed-off shotguns were ruled illegal because they did not fit the requirement of self-protection that was originally interpreted as the law’s modus operandi. However, as recent efforts have shown in which automatic weapons have become allowable these same rules no longer apply.

Failed Efforts at Reform

While gun control advocates are seemingly losing the battle over gun ownership in the U.S., this has not always been the case. On the contrary, the opposite held true for much of America’s history. The first efforts at regulation were in 1934. Following the high number of deaths resulting from the use of automatic weapons by prohibition-era gangsters, the federal government passed the National Firearms Act, which both made automatic weapons too expensive for the average person to afford and prevented the importation of the weapons.

The Gun Control Act was passed in 1968, in the aftermath of the high-profile killings of Martin Luther King Jr. and Robert Kennedy. This legislation created the Bureau of Alcohol, Tobacco and Firearms (ATF). ATF was tasked with regulating the sale of guns and the weapons themselves.

The tide began to turn against gun control advocates, however, with the passage of the 1986 Firearm Owners’ Protection Act, which limited the ATF in its crackdown of gun owners and dealers. The gun control side had one last hurrah with the Brady Act in 1994, which outlawed the sale of assault weapons. This law nevertheless had a built-in sunset provision of ten years. When it came up for reauthorization in 2004 it was not renewed.

Along with the recent court decisions supporting gun ownership rights, the country’s representatives also seem to be opposed to regulating the weaponry. This became clear in the wake of the Sandy Hook massacre when both new legislation and efforts to expand existing legislation, which called for background checks, failed to gain traction even in the shadow of the massacre of 20 elementary school children. Click here to view a video explainer on the history of gun control in the United States.

Guns in America

An Abundance of Firearms

Despite all the discussion over protecting gun owners’ rights, only a minority of the population actually owns any guns at all. While exact figures do not exist, according to a 2013 survey by the Pew Research Center, only about 37 percent of Americans own firearms. However, while less than half of the U.S. owns a gun, there are an estimated 270 to 310 million in circulation among the civilian population. In other words, one for every man, woman, and child. To put this into context, although the U.S. accounts for only about five percent of the world’s population, it is home to between 35 to 50 percent of its firearms. While the overwhelming majority of these are owned by law-abiding citizens, the sheer volume of available weapons has led to a serious issue with gun violence in the United States.  The following video depicts the level of gun ownership, gun fatalities, and attempts at gun control.

Gun Deaths by the Numbers

While those who favor protecting gun rights over gun control cite protection as a main reason, it has to be asked, are guns making the U.S. any safer? Going strictly by numbers and in comparison to other industrialized nations, the answer is a resounding no. On an average day in the U.S., 88 people die from a gun-related incident. The yearly total extrapolates to roughly 32, 251, the approximate figure in 2011 according to the CDC.

These rates dwarf those of countries in Western Europe to which the United States is often compared in other metrics. The U.S. in 2010 for example had a homicide rate that was 6.6 times higher than that of Portugal, who had the highest rate in Western Europe. To put it another way, that same year the U.S. had a higher homicide rate per capita than Pakistan, a country renowned for terrorism, and was only slightly behind other nefarious locales such as the Democratic Republic of Congo and Iraq. Perhaps the most chilling comparison is the 2013 numbers which show major American cities with homicide rates similar to that of notoriously violent countries such as El Salvador, Honduras, and Mexico. While it should be made clear that all gun-related deaths in the U.S. are not homicides, the fact that these are also some of the highest figures in the world is telling in itself.

The level of gun violence is so high in the United States that Surgeon General Vivek Murthy argued prior to being appointed to the position in 2014 that it is a public health crisis.

In defense of guns, some proponents compare them to automobile fatalities and suggest that no one ever considers banning cars. This comparison may soon be losing traction, however. Not even taking into account factors such as cars being used for longer time periods and much more frequently than firearms, overall vehicle fatalities are declining. In fact, while gun deaths continue to rise, projections for automobile deaths continue to fall and it is widely speculated that gun-related fatalities will soon eclipse those from automobiles.

Opinions of Guns

With all this in mind, what is the perception of gun control and gun ownership in this country today? According to a recent Pew Research Poll, for the first time since polling began in the early 1990s, more people view protecting gun rights as important than they do controlling gun ownership. The main motivation behind this is a perceived threat and belief in an increased crime rate. However, crime rates have remained consistently low since the beginning of their precipitous fall in the early 1990s.

Nonetheless, the main reason why those polled owned guns was for protection. This is in stark contrast to just 16 years ago when the main reason given by respondents was hunting. These numbers can be broken down further; white people, men, and those who identify as Republican are also more in favor of protecting gun ownership rights and believe guns are a means of protection that makes a home safer.

The fact that support for gun ownership is going up as crime rates remain low presents a paradox. The perception then according to these polls is people are either being misinformed or misinterpreting the issues relating to gun ownership.

The NRA

The National Rifle Association (NRA) has a major impact on the perception of firearms in the United States. In 2014 for example, the NRA donated $984,152 in political contributions, spent $3.36 million on lobbying, and another $28.2 million on outside spending. Nevertheless, while this may seem like a lot, the organization ranked 315 in contributions, 150 in lobbying, and 10 in outside spending among all groups.

Thus, the NRA seemingly has far more clout than is warranted based on how much money it spends. From where then does its power come? The answer is in the rating system the NRA has for candidates. The system provides a letter grade, similar to one from elementary school, based on how a candidate votes on a bill related to guns. An A-grade indicates a candidate’s strong adherence to individual gun ownership and conservative values.

Watch the video below for more information about the NRA.

Conclusion

The United States is a heavily weaponized country, in fact the most heavily weaponized in the world. This extends from its military, which is the best funded by far, to its police forces, which are quickly resembling its military in terms of equipment. This has even pervaded the towns, communities, and neighborhoods as regular Americans are armed like no other people on the globe.

This is the result of years of lobbying by pro-gun groups, namely the NRA, and decisions by the government and courts to protect gun ownership. Subsequently, the widespread availability of these weapons has also led to extremely high numbers of gun-related deaths and homicide rates that on average rival some of the most dangerous countries in the world.

While these facts have caused some to take pause, they have not led to any real change in regulating these weapons, whether this takes the form of outlawing guns in general or requiring more thorough background checks for the mentally ill. The numbers on this issue are unquestionable. The debate, however, on how to handle this issue is still wide open to a variety of corrective actions.

Regardless though, the recent events in Charleston showed that whether it is guns themselves or those wielding the weapons, they have contributed to immense suffering and loss in this country. Whether protecting the right to own these weapons supersedes these individual tragedies is where the debate now begins.

Resources

Atlantic: America’s Top Killing Machines

Economist: Why Gun Control is Doomed

Washington Post: The Five Extra Words That Can Fix the Second Amendment

Breitbart: Gun Control

Pew Research Center: A Minority of Americans Own Guns, But Just How Many is Unclear

Humano Sphere: Visualizing Gun Deaths

National Journal: Senate Confirms Gun Control Advocate as Surgeon General

Pew Research Center: Despite Lower Crime Rates, Support For Gun Rights Increases

Pew Research Center: Why Own a Gun? Protection is Now Top Reason

Open Secrets: National Rifle Association

GQ: How the NRA’s Grading System Keeps Congress on Lockdown

Michael Sliwinski

Michael Sliwinski (@MoneyMike4289) is a 2011 graduate of Ohio University in Athens with a Bachelor’s in History, as well as a 2014 graduate of the University of Georgia with a Master’s in International Policy. In his free time he enjoys writing, reading, and outdoor activites, particularly basketball. Contact Michael at staff@LawStreetMedia.com.

The post America’s Focus on Guns by the Numbers appeared first on Law Street.

As mass incarceration and state violence vis a vis police brutality are coming increasingly under fire, even in mainstream media, many communities are turning toward alternative methods of addressing violence. Transformative justice–as opposed to criminal justice–seeks to create alternatives to incarceration in a similar manner to its less-radical cousin, restorative justice. But transformative justice does something else, as well: transformative practices encourage communities to avoid involving police in crimes, even in instances of violence.

How can community practices of transformative justice transform the larger criminal justice system? Can community-based methods of addressing violence be the key to transforming this society?

What is Transformative Justice?

According to Generation Five, an organization dedicated to transformative justice in cases of gender-based violence, especially child abuse, transformative justice is described as the following:

Transformative justice [is] a liberatory approach to violence…[which] seeks safety and accountability without relying on alienation, punishment, or State or systemic violence, including incarceration or policing.

Three core beliefs:

Individual justice and collective liberation are equally important, mutually supportive, and fundamentally intertwined—the achievement of one is impossible without the achievement of the other.

The conditions that allow violence to occur must be transformed in order to achieve justice in individual instances of violence. Therefore, Transformative Justice is both a liberating politic and an approach for securing justice.

State and systemic responses to violence, including the criminal legal system and child welfare agencies, not only fail to advance individual and collective justice but also condone and perpetuate cycles of violence.”

Because of these core beliefs, rather than seeking to integrate transformative practices into the current criminal justice system, transformative justice practitioners actively advocate for remaining outside of state intervention.

Transformative Justice is a response to the State’s inability to provide justice on either individual or collective levels. Therefore, in this paper, we propose a model that responds to experiences of violence without relying on current State systems. We believe this to be a liberating politic that creates opportunities for healing and transformation rather than retribution and punishment. Transformative Justice moves us toward equity and liberation rather than maintaining the inequality that the current State and systems maintain.

Transformative justice practitioners argue that there is a choice, however: by equipping communities to engage in transformative practices instead of resorting to the only option often presented to people–involving the police in cases of violence–harm can actually be repaired and further harm can actually be prevented.

Can Transformative Practices Achieve Justice?

While many people across the country increasingly accept alternatives to incarceration for youth who are convicted of minor, nonviolent offenses–indeed, restorative practices dealing with those kinds of cases are becoming more common–many are skeptical about transformative justice advocates’ claims that alternatives to incarceration should also be used in cases as grave as rape and child abuse.

But does anyone actually practice transformative justice?

In one example of transformative justice principles being used in an effort to keep targeted communities safe without resorting to state intervention, the Bed-Stuy, Brooklyn queer of color youth collective Safe OUTside the System launched a campaign in 2007 in line with transformative justice principles and practices:

In 2007, the collective launched the Safe Neighborhood Campaign. Similar to the Dorchester Green Light Program of the 1970s, the campaign provides safe havens from sexist, homophobic, transphobic, and racist language, behaviour, and violence of all sorts. The campaign has three phases. In the first, neighbourhood public spaces such as restaurants, schools, churches, and businesses agree to visibly identify themselves as safe havens for those threatened with or fleeing from violence. In the second phase, the campaign incorporates an educational component to address some of the causes of anti-gay and anti-trans violence. Members of the campaign train the owners and employees… [on] ways to prevent violent without relying on law enforcement. In the third phase, Safe Space advocates recruit other community members and public figures into the campaign.

In ways that are formal–like these Safe OUTside the System’s effort–and informal, strategies of transformative justice are providing alternatives to the criminal justice system across the country.

Transforming criminal justice?

While transformative justice can be criticized for not offering a structured, consistent approach to providing alternatives to policing, transformative justice advocates continue to emphasize the importance of promoting truly individual and community-based alternatives–which vary with each circumstance–rather than attempting to dictate what is best for different communities. This is because ultimately, the priority of transformative justice advocates is not to transform the criminal justice system, but rather to work outside of it until it can be dismantled and rebuilt in a transformative way that does not continue to target already marginalized peoples.

Resources

Generation Five: Transformative Justice

Generation Five: Toward Transformative Justice

Huffington Post: Seeking Transformative Justice in Ferguson, Dearborn, and Beyond

Huffington Post: Criminalizing Victims: How the Punishment Economy Failed Marissa Alexander

Philly Stands Up!: Transformative Justice Anti-Sexual Assault Action Camp!

US Prison Culture: Thoughts About Community Support Around Intimate Violence

Safe OUTSide the System: The SOS Collective

Jennifer Polish

Jennifer Polish is an English PhD student at the CUNY Graduate Center in NYC, where she studies non/human animals and the racialization of dis/ability in young adult literature. When she’s not yelling at the computer because Netflix is loading too slowly, she is editing her novel, doing activist-y things, running, or giving the computer a break and yelling at books instead. Contact Jennifer at staff@LawStreetMedia.com.

The post Transformative Justice Transforming Mass Incarceration? appeared first on Law Street.

Recent surveys have shown that a disproportionate number of Americans believe there is a problem in our country with fairness of the judicial system. Of course, there are various was that this comes to light, but one of the most prolific is judicial bias. From juvenile courts all the way up, it has been a problem for years.

But what indicates judicial bias, what can judges actually do if they feel themselves being biased, and what can citizens do about the issue?  Looking back historically, you can see areas where the problem may have existed, which is a good indication of where it will pop up again.

So the question remains, does judicial bias exist, or is it something that we are making up, and if it exists, what can we do?

Judicial Bias

In his book “Mediating Dangerously – The Frontiers of Conflict Resolution,” Kenneth Cloke wrote about the idea of judicial bias:

[T]here is no such thing as genuine neutrality when it comes to conflict. Everyone has had conflict experiences that have shifted his or her perceptions, attitudes, and expectations, and it is precisely these experiences that give us the ability to empathize with the experiences of others. Nor are there any genuine neutrals in courts, including judges, CEO’s, managers, and human resources representatives, all of whom have biases and points of view, including the bias of wanting to protect the organization from being disrupted by conflict. Judges have the most intractable bias of all: the bias of believing they are without bias.

With a few life-changing court hearings coming up in the Supreme Court and around the world, there have been many think pieces and questions posed by the media. One of those questions is whether or not the personal beliefs of Supreme Court justices will come into play. The right to a fair and speedy trial is promised to us in the Constitution, after all, so that should certainly extend to the top.

Judicial bias occurs when a judge has a bias when making a ruling in a hearing in which he or she has a specific feeling or attitude toward a party that will hinder them from acting fairly. In this case, the judge is actually hindering the right to a fair trial. Typically, a judge will recuse him or herself if a bias occurs.

Can we prove judicial bias?

The problem is that we often cannot prove that judicial bias exists. Now, many legislatures and jurisdictions have allowed parties to seek disqualifications if it appears that there was judicial bias. One example is Title 28 U.S.C. § 455, which has provisions for when a federal judge is biased against a party, as well as when a reasonable, disinterested party would think he has a bias. However, that doesn’t necessarily mean that this is an easy thing to do. There are many cases where a judge might be biased, but that doesn’t mean that the “reasonable” person would think so.

There is another problem to consider as well: the duty to sit doctrine. Many judges, especially those who are “old school,” tend to follow this. They are basically obligated to stay on a case that they have been assigned to handle unless they are forced to step away.

Sensitive Subjects

In many careers we are instructed to go with our feelings and think with our hearts in order to reach the best possible choices. However, that isn’t something that people would tell judges to do. That doesn’t mean it doesn’t happen, however.

New research has shown that judges, especially Supreme Court justices, will actively pick out the cases with which they identify. In their report, Lee Epstein of the University of Southern California and two colleagues examined nearly 5,000 decisions in 516 Supreme Court free-speech cases that spanned the decades between 1953 to 2010 to determine whether there was any bias. When the Economist looked at the paper, they explained the political bias in a funny way:

For example, if the speaker seeking first amendment solace is a pro-lifer rankled by restrictions on protests near abortion clinics, his rights are very likely to be recognised by Justice Clarence Thomas, a conservative, but not by Justice Ruth Bader Ginsburg, a liberal (see Hill v Colorado). And if the speaker is a high-school kid holding up a banner reading “Bong Hits 4 Jesus” on a school trip, you can expect Justice Thomas to harumph while Justice Ginsburg rises to defend the student’s free-speech rights (see Morse v Frederick). Right-wing justices tend to uphold conservative speakers’ rights and rule against liberal litigants; liberal justices smile on their ideological friends and frown at their foes, too.

While it is funny to think about it in those terms, it has many people thinking about some of the other places that judges could have bias and if it has ever happened before. Many of these include cases where the jury is included in the bias.

Religion

Many of the cases that judges and juries hear go back to morality and our personal beliefs. Many of us are exposed to religion from an early age, and it would be foolish to think that judges would be able to separate, at least completely, their deeply ingrained beliefs from the law. Certainly, there might even be a place for it. In an article from the Journal of Law and Religion, a quote from a former judge puts it into perspective:

It’s funny. . .I think it [religion] has influenced me. I think it’s given me a set of values. . .you know, every once in a while a reading from the New or Old Testament kind of strikes you and you just wouldn’t hear it–or I wouldn’t–or read it if it weren’t for that. It causes you to pause a little bit and do a little self-examination. I think that’s healthy. So I think that does influence my perspective.

There have been several cases in the last few years in which lawyers claimed religious bias against their clients. In Tennessee, a judge found himself in hot water after forcing a man to change his baby’s name from Messiah to Martin after he determined that “The word ‘messiah’ is a title, and it’s a title that has only been earned by one person, and that one person is Jesus Christ.” The child’s parents were there to settle a few different issues, including the baby’s last name.

While not in court, a Texas judge, Carter Tinsley Schildknecht, was issued a public admonition because  of some comments she made, including “describing District Attorney Munk as a ‘New York Jew’ and by criticizing a prosecutor’s beard because it made him look like a ‘Muslim’.”

Gender

One of the biggest sources of bias may be gender. In many of the cases where gender bias was found, it results in decisions that are based upon preconceived notions of sexual roles rather than on fair and impartial appraisals of individual situations. However, many people don’t see this bias because they are operating on those same preconceived notions.

In fact, New Jersey Supreme Court Justice Alan B. Handler wrote “[N]ot everyone has a nose for discrimination, especially in its most subtle forms. We are coming to realize that people are products of cultural conditioning which frequently obscures recognition of social wrongs…Discrimination frequently goes uncorrected because it is undetected.”

So what can we do?

Unfortunately, the idea that we can take away bias is misguided, as it is almost always going to be there. Just like in any other profession, bad judges do exist, but as they are in a power position, it can be hard to find a lawyer willing to expose that. The National Center for State Courts suggests that one of the biggest things we can do is reduce the wear and tear on judges by shortening their hours, provide more feedback on their performances, and encourage the courts to stay vigilant.

Even more so, we need to provide bias training to judges, and maybe even encourage them to do some research into the facts if a case involves someone’s religion, for instance. Diversity training has gotten a bit of a bad name, but it really does serve a purpose, and the courtroom may be the next place that needs it.

Conclusion

Bias is a part of life, unfortunately. Truly, we can never really let go of our bias, but judges have a responsibility to acknowledge it and try to make a fair judgement despite it. Juries have a similar responsibility, especially when they are still in the selection process.

Resources

Primary

U.S. Government Publishing Office: 28 U.S.C. 455 – Disqualification of Justice, Judge, or Magistrate Judge

Justia: Castellano v. Linden Board of Education

Additional

Douglas Ginsburg: Originalism and Economic Analysis: Two Case Studies of Consistency and Coherence in Supreme Court Decision Making

Journal of Law and Religion: Beneath the Robe: The Role of Personal Values in Judicial Ethics

Kenneth Cloke: Mediating Dangerously – The Frontiers of Conflict Resolution

Economist: Playing Favorites

Religion Clause: Texas Judge Disciplined For Religious-Cultural Bias

Reuters: Tennessee Judge Cited For Ordering Baby’s Name Changed From Messiah

University of Southern California: Do Justices Defend the Speech They Hate? In-Group Bias, Opportunism, and the First Amendment

Women Law: Operating a Task Force on Gender Bias in the Courts

American Bar Association: Overcoming Judicial Bias

American Psychology Association: Can Jurors’ Religious Biases Affect Verdicts in Criminal Trials?

NCSC: Strategies to Reduce the Influence of Implicit Bias

William S. Boyd School of Law: Chief William ‘s Ghost: The Problematic Persistence of the Duty to Sit Doctrine

Noel Diem

Law Street contributor Noel Diem is an editor and aspiring author based in Reading, Pennsylvania. She is an alum of Albright College where she studied English and Secondary Education. In her spare time she enjoys traveling, theater, fashion, and literature. Contact Noel at staff@LawStreetMedia.com.

The post Judicial Bias: What’s Morality Got to do With It? appeared first on Law Street.

With mass incarceration under scrutiny, questions arise about alternatives to the punitive practice. One such set of alternatives–a process called restorative justice–is on the rise across the country in youth courts and schools.

Restorative justice has been practiced around the world for quite some time, but how do these dialogue-based alternatives to incarceration operate within the United States’ criminal justice system? Is restorative justice a radical means to advance social justice in an age of mass incarceration, or is it merely another way to reinforce the power structures of the current system? Read on to learn more.

Retributive Versus Restorative Justice

In order to appreciate the differences in approach that restorative justice poses, it is important to first understand that the United States’ criminal justice system operates under a retributive justice approach. Retributive justice is based on the idea of punishment, and the theory behind it is that the state is the ultimate victim of crimes and thus has the power to punish people it deems criminals. This domination-based form of justice is one basis for punishing “victimless crimes” such as drug offenses so harshly. Under retributive justice theories, the state is positioned as the victim.

In other words, the current criminal justice system’s emphasis on retributive justice relies on the logic that:

Retributivism answers the question ‘why punish’ by saying that the offender deserves punishment, and as simple as this statement sounds, its underlying meaning contains a couple of important points about morality and law.  Retributivism as a theory of punishment requires retribution as a rationale for law.  A retributionist assumes that the law exists for a reason — a moral reason.  All crime, even victimless crime, involves a social harm — a moral harm.  In other words, violating the law not only offends against the law of the land, but the moral code of the land.

Restorative justice, however, is grounded in an entirely different logic, philosophy, and practice. Restorative justice is defined by restorative agencies such as the Insight Prison Project as:

A philosophy and a social movement which provides an entirely different way of thinking about crime and victimization.  Our current retributive justice system focuses on punishment, regarding the state as the primary victim of criminal acts and casting victims and prisoners in passive roles. Restorative Justice, by contrast, focuses on healing and rehabilitation… It assumes that the persons most affected by crime should have the opportunity to become involved in resolving the conflict.  The goals of restoring losses, allowing prisoners to take responsibility for their actions, and helping victims move beyond their sense of vulnerability stand in sharp contrast to the conventional focus on past criminal behavior and increasing levels of punishment.

By taking the ideals of community and individual accountability and upholding the goal of mutual understanding and healing, restorative justice processes ensure that police, prosecutors, and judges are not the only ones with power over deciding someone’s fate after a crime has been committed. When prosecutorial and/or judicial discretion is utilized to make restorative processes available to people, the power of deciding how to move forward shifts to the person accused of committing a crime and the people most closely impacted by that crime.

This power shift can involve processes such as victim-offender mediation, conferencing, service provision, and “victim” assistance, as applicable. In the most well-known and widely used forms of restorative justice–mediated community conferences and circles–the offender(s), victims(s), and other closely impacted community members will come together in a mediated dialogue to address the context and harm done by the crime. During this process, the offender is expected to accept responsibility and agree to the group consensus of how to move forward, whether through community service, rehab, or other options. In these types of processes, the offender must agree to following through on the agreement; failing to do so will trigger a return to a traditional, retributive justice approach that will likely result in jail time.

Restorative Justice in Action

Currently in the U.S., restorative justice is most often used in the context of youth offenders and the juvenile justice system. Especially due to the extremely high rates of recidivism in the juvenile justice system, restorative justice, which often produces extremely low recidivism rates, is becoming increasingly popular as an alternative to incarceration in many juvenile courts across the country.

Many schools are using restorative processes as a way to keep their youth out of the school-to-prison pipeline. By engaging in restorative processes of mediation, schools are doing the following:

Forging closer, franker relationships among students, teachers and administrators. It encourages young people to come up with meaningful reparations for their wrongdoing while challenging them to develop empathy for one another through “talking circles” led by facilitators.

These talking circles, a trademark of restorative processes, often serve as alternatives to the suspensions and expulsions that fuel the school-to-prison pipeline. By resisting racialized zero-tolerance policies that do not give students a chance to repair any harm they might have done–and that might have been done to them–restorative practices in schools give students, teachers, and administrators the opportunity to identify deeper causes of problems in schools that allow more holistic approaches to students acting out.

Schools from California to Colorado to New York are implementing and expanding their restorative justice programs in order to avoid shipping their students directly into the juvenile justice system. In New York City, restorative programming in schools is being used with increasing frequency and impact:

Over the past few years, the Department of Education has been building its capacity to implement restorative justice programs. The department has provided training to teachers from 55 middle and high schools through the Morningside Center for Teaching Social Responsibility, which will be training 45 more schools this July and plans to add another 45 in the fall.

At Flushing International High School, where students hail from over 40 countries, social worker Tania Romero said that restorative practices have decreased incidences of violence between students of different nationalities and allowed for deeper conversations on issues like racism. “All schools should be entitled to this,” she said.

While experts acknowledge that restorative justice does not offer a quick fix either to juvenile justice or to schooling issues, many schools are becoming committed to advocating for the kinds of structural and cultural changes that can make restorative justice processes even more effective.

In other cases, however, restorative processes resemble traditional court processes more than they do school-based conferencing or mediation. In Brownsville, New York, for example, where youth of color are particularly targeted by the criminal justice system and jailed at extremely high rates, the city has established a youth court system in which youth offenders try and sentence each other to various sanctions, including community service, essay-writing, and tutoring. In this program, youth are trained for 30 hours and take a 16-page bar exam to prepare for the responsibility of trying and sentencing their peers. Though some might be skeptical of the ability of youth to effectively diminish the crime rates of their peers, the youth going through these restorative processes have a 93 percent compliance rate, which indicates an extremely low recidivism rate–much lower than that produced by the traditional juvenile justice system.

What Are We Trying to Restore?

Despite its success at lowering recidivism rates, restorative justice is often the recipient of criticism. Because restorative justice is a process that relies on the actions of those in the criminal justice system–judges and prosecutors must refer defendants or people convicted of crimes to restorative processes, and reserve the right to re-enact retributive processes if restorative methods are deemed ineffective–many people and organizations criticize restorative justice for being powerless to truly change the criminal justice system from within.

The co-opting of restorative processes by the state actually risks reinforcing the power structures that shape the harm done by crimes to begin with. For example, state-mandated restorative processes may force mediation event participants like police and youth of color together, ignoring the extreme power differences between these individuals and therefore ignoring structural power dynamics and risking perpetuating harm upon people who may have committed a particular crime, but who are also targeted by state violence.

As such, it is crucial to note that restorative practices may be practiced in disproportionate ways that ignore societal power structures. One study shows that schools with more Black students are less likely to use restorative processes because of racialized assumptions about the student population. Further, some question whether restorative practices are accessible to people living with certain dis/abilities.

What then does restorative justice seek to restore? If structural inequality was the baseline condition under which a crime was committed, is restorative justice satisfied with restoring that unjust baseline? Critics of restorative justice and advocates of the more structurally minded transformative justice argue that restorative justice, by nature of working within the criminal justice system, can never truly address these issues of systemic oppression.

So What’s the Verdict?

Restorative justice–especially in the context of the juvenile justice system–has tremendous potential to offer alternatives to incarceration for people who would otherwise be targeted for mass incarceration. Recidivism rates decline and community involvement increases, and these are all impacts that critics of mass incarceration certainly applaud. However, while restorative justice is certainly an important move toward reforming the criminal justice system as is, its lack of emphasis on structural and systemic oppression that is the basis for mass incarceration to begin with makes it an inadequate means of truly transforming the criminal justice system.

Resources

Primary

Oakland Unified School District: Welcome to Restorative Justice

Additional

Conflict Solutions Center: Retributive vs. Restorative Justice

Conflict Solutions Center: What is Mediation?

Partnership for Safety and Justice: Restorative and Transformative Justice: A Comparison

Insight Prison Project: A Restorative Justice Agency

Restorative Justice Online: What is Restorative Justice?

The New York Times: Opening Up, Students Transform a Vicious Cycle

Chalkbeat New York: City Preparing to Expand Restorative Justice Programs

National Public Radio: An Alternative to Suspension and Explusion: ‘Circle Up!’

New York Daily News: Teens are Judge and Jury in Brownsville Youth Court, Delivering “Restorative Justice”

PBS Newshour: To Curb Conflict, A Colorado High School Replaces Punishment with Conversation

Eastern Mennonite University Center for Justice and Peacebuilding: How Effective is Restorative Justice?

Restorative Justice Online: Restorative Justice in Schools: The Influence of Race on Restorative Discipline

Jennifer Polish

Jennifer Polish is an English PhD student at the CUNY Graduate Center in NYC, where she studies non/human animals and the racialization of dis/ability in young adult literature. When she’s not yelling at the computer because Netflix is loading too slowly, she is editing her novel, doing activist-y things, running, or giving the computer a break and yelling at books instead. Contact Jennifer at staff@LawStreetMedia.com.

The post How Can Restorative Justice Change the Criminal System? appeared first on Law Street.

A prosecutor is “an administrator of justice” whose duties are “to seek justice, not merely to convict.” According to the American Bar Association,

It is an important function of the prosecutor to seek to reform and improve the administration of criminal justice. When inadequacies or injustices in the substantive or procedural law come to the prosecutor’s attention, he or she should stimulate efforts for remedial action.

Chances to combat these injustices often occur in the strong role of prosecutorial discretion in determining someone’s prison sentence. Many argue that prosecutorial discretion is such an enormous responsibility that prosecutors have the power to be strong social justice advocates. Many others, however, suggest that prosecutorial discretion leads to tremendous racial disparities in sentencing. So the question is: Is it possible for prosecutors to be social justice advocates? Or is the criminal justice system overall too big for prosecutors to make any social justice-oriented, system-wide changes from within?

In Defense of Prosecution?

In her Brennan Center post entitled “Prosecutors Can Play a Role in Ending Mass Incarceration”–which argues exactly that–Lauren-Brooke Eisen, Senior Counsel at the Brennan Center’s Justice Program reminds us of the various roles of prosecutors:

The reality is that prosecutors play a unique and immensely powerful role in the criminal justice system. They decide who gets charged, and most importantly, with what crime, and what plea bargains to accept and reject. Sentencing recommendations from prosecutors carry immense weight with judges.

Largely due to this prosecutorial discretion, federal courts impose 20 percent longer sentences on Black men than they do on white men who are convicted of committing similar crimes. Courts similarly impose longer sentences on Latino men than they do for white men convicted for similar crimes.

Many interpret these roles as evidence of prosecutorial racism, because prosecutors determine the course of such huge pieces of defendant’s cases. The immense racial disparities in charging, plea bargaining, and sentencing are all directly traceable to prosecutors’ structurally informed choices. However, Eisen uses this information to argue that the point at which a prosecutor encounters a defendant’s case is already beyond the point at which interference is needed. Eisen asserts that prosecutors can and should play a role in preventing crimes and recidivism.

This is consistent with both the Brennan Center’s recommendations that it should be the priority of federal prosecutors to reduce incarceration, recidivism, and violence, and with former U.S. Attorney General Eric Holder’s shifting priorities for law enforcement. Calling for a “Smart on Crime” approach, Holder has stated:

Of course, as we refine our approach and reject the ineffective practice of calling for stringent sentences against those convicted of low-level, nonviolent crimes, we also need to refine the metrics we use to measure success; to evaluate the steps we’re taking; and to assess the effectiveness of new criminal justice priorities.  In the Smart on Crime era, it’s no longer adequate – or appropriate – to rely on outdated models that prize only enforcement, as quantified by numbers of prosecutions, convictions, and lengthy sentences, rather than taking a holistic view.

Prosecutors wishing to pursue such a holistic approach may learn about doing so by exploring resources such as those provided by the Vera Institute of Justice’s Prosecution and Racial Justice Program.

Prosecutors and Restorative Justice

When writing of the extremely large roles prosecutors play in determining the course of the lives of people accused of crimes, activist and scholar Angela Davis argues that:

Whether or not prosecutors intentionally or unconsciously discriminate against defendants of color in the charging and plea-bargaining processes, their decisions–even the race-neutral ones–may cause or exacerbate racial disparities. Their tremendous power and discretion is often exercised in ways that produce unintended and undesirable consequences. However, that same power and discretion can be used to remedy the problem.

Some of these remedies may include ensuring that alternatives to incarceration are widely available across the country. One way that prosecutors can provide alternatives to incarceration for people convicted of committing crimes is through restorative justice processes. Restorative justice is defined by the National Council on Crime and Delinquency as:

Restorative justice offers alternatives to our traditional juvenile and criminal justice systems and harsh school discipline processes. Rather than focusing on punishment, restorative justice seeks to repair the harm done. At its best, through face-to-face dialogue, restorative justice results in consensus-based plans that meet victim-identified needs in the wake of a crime. This can take many forms, most notably conferencing models, victim-offender dialogue, and circle processes. In applications with youth, it can prevent both contact with the juvenile justice system and school expulsions and suspensions. Restorative justice also holds the potential for victims and their families to have a direct voice in determining just outcomes, and reestablishes the role of the community in supporting all parties affected by crime. Several restorative models have been shown to reduce recidivism and, when embraced as a larger-scale solution to wrongdoing, can minimize the social and fiscal costs of crime.

By utilizing prosecutorial discretion to refer people convicted of crimes to restorative processes instead of being incarcerated, prosecutors can avoid contributing to mass incarceration and can avoid inflicting the devastating collateral consequences of incarceration. Restorative justice alternatives are currently being used successfully in piecemeal initiatives across the country in schools to avoid suspensions and expulsions that contribute to the school-to-prison pipeline. However, many criticize practitioners and advocates of  restorative justice for staying within the overall criminal justice system because restorative justice works within the system and assumes that there are equal conditions to “restore,” it arguably ignores the fundamental injustices that shape mass incarceration to begin with. Therefore, prosecutors who attempt to advance social justice ends with restorative justice alternatives to incarceration may make positive differences in individual people’s cases, but have an arguably limited impact on mass incarceration as a whole.

#PlotTwist: Changing Who Gets Prosecuted

Along these same lines, some prosecutors may also attempt to advance social justice goals through the prosecution of corporations that are exploiting human labor, perpetuating abuses, and damaging the environment. Critics of these approaches argue that this kind of prosecution is not holistic: it addresses individuals and individual corporations, not the systems that facilitate the abuses in the first place.

Similarly, it is possible for prosecutors to specialize in criminal and civil cases against cops who discriminate and violently abuse their power. Certainly, many social justice advocates actively demand more prosecution of cops. Much of the recent #BlackLivesMatter uprisings recently have been focusing on the fact that prosecutors don’t tend to charge cops who beat and/or murder people of color.

However, many criticize these attempts, too, because they exist only within an already racialized system, thereby reinforcing the power of the criminal justice system that created mass incarceration to begin with. When social justice advocates–or prosecutors–try to use the criminal justice system for social justice aims, they are implying that the criminal justice system does, in fact, deliver justice, when many believe that it does not.

As the prison abolitionist blog Prison Culture published in a post in the wake of George Zimmerman murdering Trayvon Martin in 2012, prosecuting cops or vigilantes who target people of color in the name of “justice” serves to reinforce people’s beliefs that they should turn to the criminal justice system for solutions:

I think that making the main focus of our activism with respect to Trayvon’s killing the prosecution of George Zimmerman is short-sighted. Additionally, it does nothing to address the root causes of racism and oppression which were surely the fuel for this murder. For black people, our history on issues of crime, law, order, and punishment is complex and usually conflicting. In this moment, I question why we as black people who know that there is no “justice” in the legal system are expending the majority of our energy demanding “justice” from said system. How are we going to find “justice” in the prosecution of Zimmerman? The answer is quite simply that we will not.

Attorney and author Paul Butler generalizes this frustration to the role of prosecutors in general. In a forum at NYU in 2009 (see video above), Butler disagreed with moderator Anthony Barkow about the potential role of prosecutors in serving social justice ends:

Butler contended that with racial profiling by police and mandatory sentences for many drug crimes, prosecutors have little power to fight these problems from the inside. To answer the question at the center of the debate, the efforts of good people would be wasted as prosecutors, in Butler’s view. Barkow, however, said that attorneys, even when they are not the lead prosecutor, can and do make discretionary decisions that allow them to work within the law to have influential voices in cases. ‘Supervisors will often defer, extensively in my experience, to the line prosecutors,’ Barkow said. ‘So the line prosecutors making all these discretionary decisions are really kind of driving the bus most of the time…Butler’s overarching position on how good people can and should behave in regards to our system of justice was quite clear, provocative, and sobering.’ He maintained that the way to fight social and racial injustice was not to be a part of the institutions that help to further it. ‘The determination of who goes to criminal court in chains…should not depend so much on race and class,’ Butler said in conclusion. ‘As long as it does, we need people who believe in social justice and racial justice to stand up, to be strong, and to refuse to be complicit.’

So, Can Prosecutors be Social Justice Advocates?

While injustices in the overall criminal justice system make it hard or even impossible for prosecutors to be social justice advocates from within the system, there may be piecemeal, individual roles for prosecutors to play toward incrementally achieving some social justice goals amid broader injustices in the criminal justice system.

Resources

American Bar Association: Prosecution Function

Open Society Foundation: Racial Disparity in Sentencing

Leadership Conference: Race and Prosecutorial Discretion

Brennan Center for Justice: Federal Prosecution for the 21st Century

American Civil Liberties Union: Words From Prison: The Collateral Consequences of Incarceration

Race, Racism, and the Law: Prosecutors as the Most Powerful Actor in the Criminal Justice System

Brennan Center for Justice: Prosecutors Can Play Role in Ending Mass Incarceration

School Book: Alternatives to Suspension: Inside a ‘Restorative Justice’ High School

Partnership for Safety and Justice: Restorative and Transformative Justice: A Comparison

Nation: Why It’s Impossible to Indict a Cop

Prison Culture: Trayvon Martin and Black People for the Carceral State

Crunk Feminist Collective: Trayvon Martin and Prison Abolition

New York University Law: Butler and Barkow Discuss the Role of Prosecutors in Social and Racial Justice

Jennifer Polish

Jennifer Polish is an English PhD student at the CUNY Graduate Center in NYC, where she studies non/human animals and the racialization of dis/ability in young adult literature. When she’s not yelling at the computer because Netflix is loading too slowly, she is editing her novel, doing activist-y things, running, or giving the computer a break and yelling at books instead. Contact Jennifer at staff@LawStreetMedia.com.

The post The Role of Prosecutors as Social Justice Advocates appeared first on Law Street.

Capital punishment has long been a controversial practice in the United States. Some feel that society needs to rid the country of America’s most heinous criminals in order to make room for new prisoners or to save taxpayer money, while others point out that the U.S. has executed more than 150 innocent people and this punishment cannot be undone. But why do people feel so strongly about the death penalty, how have their feelings changed over time, and what does this mean for capital punishment moving forward?

The Death Penalty Today

Demographics of the Death Penalty

In 2013, of the 2,979 inmates on death row, roughly half of them were held in four states: California, Texas, Florida, and Pennsylvania. Divided by race, inmates were 56 percent white and 42 percent black. Along gender lines, men outnumbered women one to 49, with men comprising 98 percent of death-row inmates and women only two percent.

Which states still use the death penalty?

The following states still use capital punishment:

The federal government and military also use capital punishment.

Each state determines which crimes are punishable by death. Crimes other than murder that can end in a death row sentence include rape of a child, weapons of mass destruction resulting in death, aggravated kidnapping, assault by an escaped capital felon, and aircraft hijacking.

The U.S. Federal Government uses the death penalty for 41 capital offenses including murder for hire, treason, terrorism, espionage, genocide, large-scale drug trafficking, and attempting to kill a witness, juror, or court officer in certain cases.

The following states abolished or no longer use capital punishment:

When the death penalty was removed or abolished in some states, lawmakers were faced with the question of what to do with those already on death row. Should those sentenced to death before the new law be allowed to live? In New Mexico and Connecticut, the answer was no. In 2009 when New Mexico eliminated the penalty, the law was not retroactive, which meant the two people on the state’s death row would still face execution. As of 2015, those two are still on death row. Also those who committed crimes worthy of the death penalty before 2009 could still face execution. The same ruling occurred in Connecticut, which had 11 people still on the state’s death row.

Arguments For and Against the Death Penalty

According to a 2014 Gallup poll, the most common justification for the death penalty is that the punishment fits the crime: an eye for an eye. This reasoning has dramatically decreased in the last 13 years, with 48 percent support in 2001, to 35 percent in 2014. Other reasons include a belief that the convicted person deserves it, that the death penalty can be used to set an example, and that it saves taxpayer money.

According to the same poll, the most popular reasons why people do not support capital punishment include a belief that it’s wrong to take a life at (40 percent), the fear of wrongful execution (17 percent), and religious purposes (17 percent). The fact that it costs more to keep prisoners on death row is very far down the list, polling at only two percent.

These are the various ways in which Americans perceive the death penalty, but are they correct?

The Cost of the Death Penalty

Despite 14 percent of Americans supporting the death penalty in order to save taxpayer dollars, it is actually more expensive to kill an inmate than to incarcerate him for the rest of his life. This revelation complicates the argument over whether or not it makes sense to employ the punishment.

A Los Angeles Times study found that the state of California spent more than $250 million per execution. California has executed 11 people over the course of 27 years and spends an average of $114 million per year on death row inmates. The state spends an additional $114 million per year on security and legal representation. The study also found that housing a death row inmate costs $90,000 more than non-death row inmates. Since reinstating the death penalty in 1978, California has spent more than $4 billion on executions. The reason why death row inmates are so costly is due to the complex and drawn out judicial process. Appeals cost the state and federal government time and money, and the concrete evidence needed, such as DNA testing, is costly. 

Other states have also found that the cost of the death penalty is higher than life sentence cases as well. A Seattle University study that examined death penalty cases in Washington state since 1997 concluded that on average capital punishment cases cost $1 million more than cases that did not seek the death penalty, with costs of $3.07 million and $2.01 million, respectively. Defense and prosecution costs were more than triple in death penalty cases. Since Washington reinstated the death penalty in 1981, the state has spent $120 million on five executions with an average of $24 million per execution.

In Nevada the cost of a capital punishment case is between $1.03 million and $1.3 million while a non-capital punishment case costs about $775,000. The reason for this difference is because death penalty cases are more lengthy and costly to make certain that the sentence is correct.

The average time a convict sits on death row has been increasing since the 1980s. In 1984 the average time between sentencing and execution was 74 months, or a little over six years. In 2012 it was 190 months, or nearly 16 years. That means the average inmate executed in 2015 was convicted in 1999.

In order to prove a fair sentence for execution all doubts must be erased. That is why death row inmates are given due process and appeals after their original sentences.

Concerns Over Wrongful Executions

Even today death row inmates are exonerated due to new evidence and doubts. As of May 2015 there have been 152 people exonerated from death row in United States history, leading to the concern that the justice system is far from infallible.

For example, in 2015 accused murderer Anthony Ray Hilton was freed after 30 years on death row in Alabama. His case made it to the Supreme Court and his defense attorney during his 1985 trial was found “constitutionally deficient” and ballistic evidence proved that he was not the murderer. The case was dropped by the Jefferson County district attorney’s office on April 1, 2015 and two days later his conviction was overturned. Because of his wrongful incarceration, Hilton missed the birth of his grandchild and the death of his mother.

So, is public opinion on the death penalty changing?

Since the 1930s, statistics show that a majority of the U.S. population supports the death penalty. The public’s opinion has fluctuated slowly over time with approval increasing from 47 percent in 1967 to 80 percent in 1995 and decreasing to 63 percent in 2014.

One thing is clear: Americans are losing confidence in the death penalty. According to Gallup, since the late 1990s, support for the death penalty for a convicted killer has fall by 17 percent and opposition has increased by 17 percent.

Conclusion

Capital punishment is legally complicated in many states. Some have the death penalty but do not use it. Others have abolished it but can still sentence people to death. Americans have a lot of things to take into account when deciding what side of the debate they fall into–whether its ethics, costs, or the time it takes to enact capital punishment. The more than 150 confirmed wrongful executions in the United States show that trials and law are not infallible. While approval of the death penalty continues to decrease every year, it’s doubtful that the U.S. will be making a big change any time soon.

Resources

Primary

Bureau of Justice Statistics: Prisoners in 2013

U.S. Department of Justice: Capital Punishment

Additional

Gallup: Death Penalty

Death Penalty: The High Cost of the Death Penalty

Death Penalty: Cost of the Death Penalty

Guardian: Alabama Man Off Death Row After 28 Years

Death Penalty Info: States With and Without the Death Penalty

Mike Stankiewicz

Mike Stankiewicz came to Washington to follow his dream of becoming a journalist. The native New Yorker studied Broadcast Journalism and Law and Society at American University. In his leisure time he enjoys baseball, hiking, and classic American literature. Contact Mike at staff@LawStreetMedia.com.

The post Capital Punishment: Is American Opinion Changing? appeared first on Law Street.

Portions of a law known as the Patriot Act were allowed to expire on May 31, 2015. The Patriot Act is one of the most controversial laws in U.S. history, originating in a time of fear and later being at the heart of leaks by Edward Snowden that revealed a massive data gathering effort by the NSA of Americans’ information. Read on to learn more about what exactly the Patriot Act is, where it originated from, and the future outlook of its laws.

The Patriot Act

The Patriot Act is one of most divisive laws passed in recent history; however, like many other boogeymen, the actual details of what it entails are unclear to much of the American public. So what exactly is the Patriot Act?

What is the Patriot Act?

The USA Patriot Act or the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, was passed in October 2001. The act dramatically expanded the ability of the United States government to conduct surveillance and investigate citizens without their knowledge.

Unlike similar preceding pieces of legislation, this act lacked the familiar protections that preserve rights in the face of legislation; its statutes were also hard to define and limit. This was due to the speed at which the law passed through congress and was signed by President George W. Bush. The bill was passed quickly due to widespread fear mongering immediately following the 9/11 terrorist attack on U.S. soil, including on the part of Attorney General John Ashcroft who warned any delay could result in another devastating attack.  Watch the video below for more details on the Patriot Act.

Illegality

In the first legal challenge to the act, despite it being in place since 2001, a three-judge panel ruled the law illegal. The panel, however, did not say the law was unconstitutional; instead that the federal government’s mass-data collections had gone beyond what the original creators of the act envisioned when they signed it into law. This is an important distinction in that it effectively says that lawmakers have power to create such an all-encompassing law, but that the Patriot Act was no such law.

Expired Provisions

While the recent ruling may have impacted the decision to let parts of the law expire, the Patriot Act was actually created with built in sunset provisions that were designed to expire unless extended by congress. Thus, after much deliberation, key components of the act were allowed to expire. One such aspect was the so-called Lone Wolf provision, which basically allowed the U.S. intelligence system to monitor individual people even if they had no known terrorist affiliation. This clause was supposedly never used and it was only allowable against non-citizens.

Another major aspect allowed to expire was the roving wiretap. As the name implied, it allowed the surveillance network to maintain taps on any one of a person’s devices, not just a single phone.

Probably the most well-known provision of the law allowed to expire was section 215. This section was the grounds the NSA used to collect data on a large number of Americans without their express permission, even if they were not suspected of terrorism or of any other crime. This section had also been used by agencies such as the CIA and FBI to track financial records of suspected terrorists and criminals.  The video below highlights what provisions of the Patriot Act will expire and what that means, specifically in relation to section 215.

Its Future and Its Successors

While these unpopular parts of the Patriot Act were allowed to expire, a similar successor was quickly passed. Known as the Freedom Act, this new law allows for greater transparency and puts the onus for compiling phone records on companies. Additionally, the Freedom Act also requires the disclosure of how often data collection is requested and allows for more opinions from judges from the mysterious Foreign Intelligence Surveillance Court.

In the aftermath of the expiration of parts of the Patriot Act and following the passage of the Freedom Act, opinions quickly poured in. While those who supported the Patriot Act claim that this has led to a degradation in U.S. security, many others actually view the two bills as essentially the same. In fact, for this latter group, the new Freedom Act does little more than privatize the collection of people’s data while offering the vaguest efforts at greater transparency. Under the Patriot Act, the NSA was compiling the data, but now the onus will fall on the telecom companies themselves. Now the companies will store the data and whenever the NSA or FBI wants to use it they will need to get a warrant from the Foreign Intelligence Surveillance Court.

Aside from changing who collects the data, the new law really does not do much. This new collection method may actually cost more due to private inefficiencies and also the money the government will pay the companies for their efforts. It also protects these same companies, such as AT&T, from lawsuits. Meaning, regardless of opinion, Americans may now be paying more money to spy on themselves. The video below explains the specifics of the new Freedom Act, even suggesting that it might lead to more widespread surveillance.

When the Freedom Act successfully passed through congress, despite repeated efforts by Senate Majority Leader Mitch McConnell, President Barack Obama immediately signed the legislation. While he and others in the government and business community lauded the new act and its potential for greater oversight and transparency, the reality remains to be seen.

The Origins of the Act

Most people associate the Patriot Act with the events of 9/11. In actuality, many of the ideas contained in the act had been debated for years but had not won the necessary support. The Patriot Act was actually the result of a compromise over another proposed bill known as the Anti-terrorism Act. Nevertheless, while the events of 9/11 did not necessarily spawn the ideas for the Patriot Act, they did serve as the catalyst to convince lawmakers that a law of that type was at last needed to prevent any further attacks.

However, how they came to this decision and how it was passed has only added fuel to the fire of those who find it controversial and even illegal. The law was originally introduced to congress by Ashcroft, who gave congress a week to pass the bill or risk the consequences of another attack. Members in both houses attempted to make changes to the law, but most were scrapped in order to meet the deadline. Certainly no one wanted to be responsible for another terrorist attack against the United States due to idleness.

While the law itself has generated controversy, extending its provision has also led to extended debates. In 2009 when it was first up for review, certain provisions were set to expire, which led to a lengthy debate and even a delayed vote. In the end, though, President Obama reauthorized the act in 2010 for one more year.

The president had another opportunity the following year, in 2011, to refuse to authorize the act or at least to add amendments. One such amendment, suggested by Senator Patrick Leahy (D-VT), called for government oversight and transparency for how the act was used by the FBI. Leahy had actually been the one leading the charge for more oversight measures for the original act, too. Despite these attempts, the amendment was ignored once more and President Obama confirmed the act yet again.

Public Sentiment

An act this controversial and requiring so much support would seem to be a likely candidate for the legislative trash heap; however, even following the disclosure made by Edward Snowden about the NSA monitoring civilians’ phones, this law is still far from unpopular. In fact, the opposite is true. In light of the act expiring, CNN polled people across party lines to gather their opinions. According to that poll, 61 percent of people felt the law should have been renewed.

Additionally, while lawmakers in Washington did not agree that the Patriot Act as it was originally constructed should be renewed, they did agree that something similar was still needed to support America’s anti-terrorism efforts. In an odd coupling, Democrats and Tea-Party Republicans united to defeat the expiring Patriot Act and then pass its successor, the Freedom Act. While the Freedom Act was overwhelmingly passed, small groups on both sides held out. On one side were those in the old-guard of Republicans, such as McConnell and Senator John McCain (R-Ariz.), who felt the Patriot Act should have been renewed as it was. Conversely, some legislators such as Senator Rand Paul (R-Ky) wanted it scrapped altogether. Paul and his like-minded supporters viewed the whole program as an example of government overreach.

The public and congress therefore still view the Patriot Act and its successor as necessary and vital to national security, even after the Snowden revelations revealed that security is coming at a cost to everyone’s privacy.

Conclusion

The Patriot Act is an extremely controversial law, passed during a time of public terror in the wake of the greatest attack on the United States in the nation’s history. The law itself gave the American intelligence community widespread powers to spy on and investigate its own citizens, without discretion and often without reason.

After much public outcry, the most contested parts of the law were allowed to die off; however, its  successor the Freedom Act guarantees nearly the same all-encompassing powers for the intelligence community, while merely shifting the effort to compile data onto communications companies. All this, even in the face of revelations, that data compiled through the Patriot Act did not aid in any major terror investigation.

Sources

Primary

Electronic Privacy Information Center: USA Patriot Act

Additional

USA Today: Here’s what happens now that the Patriot Act provisions expired

Reuters: USA Freedom Act vs. expired Patriot Act Provisions: How Do the Spy Laws Differ?

Daily Tech: Despite Support From Senator Sanders, Senator Paul Loses USA Freedom Act Fight

Politifact: Revise the Patriot Act to Increase Oversight on Government Surveillance

CNN: Six in Ten Back Renewal of NSA Data Collection

Law Street Media: NSA’s Surveillance of Americans’ Phone Conversations Ruled Illegal

NPR: NSA’s Bulk Collection of American’s Phone Data is illegal, appeals court rules

Business Insider: Obama’s Signature on the Freedom Act Reverses Security Policy That Has Been in Place Since 9/11

CNN: NSA Surveillance Bill Passes After Weeks-Long Showdown

Michael Sliwinski

Michael Sliwinski (@MoneyMike4289) is a 2011 graduate of Ohio University in Athens with a Bachelor’s in History, as well as a 2014 graduate of the University of Georgia with a Master’s in International Policy. In his free time he enjoys writing, reading, and outdoor activites, particularly basketball. Contact Michael at staff@LawStreetMedia.com.

The post Expiration of Patriot Act Reignites Security v. Privacy Debate in America appeared first on Law Street.

It started a few years ago: the calories and sodium that you are consuming when you sit down to eat a Big Mac or a Whopper stare at you from the side of the package. This phenomena occurred because of something called obesity lawsuits–legal claims by people who consume fast food at least a few times a week that they didn’t realize what they were putting into their bodies. Read on to learn about obesity lawsuits, their popularity, and the legal arguments behind them.

What Are Obesity Lawsuits?

The national conversation about what we eat and what is in it isn’t new, but it has exploded recently, from First Lady Michelle Obama’s initiatives to the school systems and even popular media. The food and drink community has been changing the way they make, market, and package foods, and it has all been either a direct result or a symptom of obesity lawsuits.

Most of the lawsuits that fit into this category come from people who blamed fast food restaurants for causing them to gain weight. They said that they weren’t aware of just how many calories they were consuming and that the companies used false advertising to say that they were healthier than they actually are. These lawsuits, as an overarching theme, also “claim that companies failed to warn consumers of the harmful contents of their food; that food advertising is misleading or deceptive; that food is addictive…or that defendants’ food contributed to consumers’ obesity.”

Obesity lawsuits have been around for decades. At least 26 states have banned any type of lawsuit against a fast food company, both restaurants and manufacturers. The Washington Post goes into more detail about these laws, stating they are:

‘Commonsense consumption’ laws, which prohibit people from suing food purveyors for making them fat, giving them diabetes, or adding to their high blood pressure.

LegalZoom points out that even though there isn’t a federal ban on the cases, there is a distinct bias from the system, which is why the ban proceeded with so much support.

Those who were for the ban on obesity lawsuits spoke out on Fox News:

‘The bill seeks to block lawsuits by people because they ate too much and got fat,’ says Rep. Chris Cannon, R-Utah, one of the bill’s sponsors.

‘We should not encourage lawsuits that blame others for our own choices and could bankrupt an entire industry,’ notes Rep. Lamar Smith, R-Texas.

In a conversation with The New York Times, the Steven C. Anderson, president of the National Restaurant Association, which represents the 858,000 small and large restaurant businesses around the country, said:

Within the industry, it has gotten everyone’s attention. While we are concerned, we think them to be frivolous.

But are these lawsuits frivolous, or are they surrounded by the stigma against the obese?

Obesity Lawsuits in Court

Negligence

Many of the plaintiffs that go up against fast food restaurants say that the food they receive is not as healthy as the restaurant would have them believe and that the quality of the food is not what was advertised in commercials. One of the most prolific cases against a fast food restaurant, Ashley Pelman et. al. v. McDonald’s Corporation, alleged that McDonald’s food items were dangerous for consumption and that McDonald’s was negligent in warning its customers. When proving this negligence, the plaintiff must prove:

1. The danger was not apparent to the average consumer;
2. The product is unreasonably dangerous for its intended use;
3. The plaintiff’s obesity was caused by the food in question; and
4. The harm would not have occurred had an adequate warning been given.

The judge who presided over this case said that:

If consumers know (or reasonably should know) the potential ill health effects of eating at McDonald’s, they cannot blame McDonald’s if they, nonetheless, choose to satiate their appetite with a surfeit of supersized McDonald’s products.

He dismissed the case.

Proving negligence can be hard, especially in situations of other unhealthy choices on the part of the consumer. This particular case did not do that, but it is held in high regard as one of the foremost cases for how to successfully sue a fast food company for negligence–those who do try to sue make sure that they can prove those four points before continuing onward.

Accountability

But what accountability does the fast food restaurant have? Those who have filed lawsuits against fast food restaurants have often said that the food is “unsafe for consumption,” due to its nutritional content, which is a harder sell in the court systems as there is no legal limit. For example, this is the same argument used against firearm manufacturers as well, but in those cases the arguments have not succeeded.

Plaintiffs also try to prove the manufacturer’s intent to sell the food using advertisements, public statements, and even internal documents. Once again returning to Pelman, they claimed that the promotional materials that said things like “Big N’ Tasty Everyday” encouraged regular consumption. They also quoted one of the nutritionists that McDonald’s featured on its website:

Our wide range of choices on our menu makes it possible for people to eat there three times a day if they wanted to.

Changing Habits and Addiction

The plaintiffs must be able to convince the courts that, if they had been given the appropriate and correct warnings about the food they were consuming, they would have changed their dining habits to something healthier. In other words: if the plaintiff had known that they were consuming something that was bad for them, would they continue to eat there?

There is really no foolproof way to determine that, but the courts must ask questions to make assumptions. Questions might include their current eating habits and if they lost any weight since they ceased visiting the fast food restaurant.

Overall, these cases are very hard to prove because of the amount of guesswork that needs to go in on all sides. A McDonald’s spokesman even said:

I don’t think that any of these lawsuits will prevail unless and until there is proof that fast food companies are intentionally and maliciously putting stuff into their food in an effort to make people ill or to addict them to the product. There is no proof of that–no hint of any proof of that–and I think that missing element makes these sorts of claims very difficult for courts to take seriously.

Results of Obesity Lawsuits

We first saw nutritional labels going onto our fast food containers around 2003 when the government believed that it would help Americans make healthier choices about their meals. This movement was all part of the Menu Education and Labeling Act that was proposed to make those choices easier. While the bill seemed to stall, McDonald’s was actually one of the first companies to start listing calories on its menus, saying it was to help customers make healthy choices.

There have been some modest improvement over the last ten years in some of the offerings available at fast food restaurants. According to Margo G. Wootan, director of nutrition policy for the Center for Science in the Public Interest in Washington DC,

Given the role of fast food in Americans’ diets, restaurants are in a unique position to help improve the diet quality in the U.S. by improving the nutritional quality of menu offerings. Modest improvements in average nutritional quality of menu offerings across eight fast-food restaurant chains were observed, which is consistent with both legislative efforts (e.g., banning trans fat) and the industry’s own statements about creating healthier menu options. However, considering that fast food is ubiquitous in the U.S. diet, there is much room for improvement.

Still, there hasn’t been much improvement in the choices that people are making while they are actually in the restaurant. In fact, fewer than half of the patrons at fast food shops actually notice that their food has calories listed, and it also really didn’t have an impact on what they ordered.

Conclusion

Obesity lawsuits and litigation are a problem that we need to solve, and that might just start with better education on all fronts. The stamping of calories and nutritional content on the sides of cups and the backs of hamburger cartons is a start for the companies. Now it is up to consumers to make the right choices for themselves. The argument will likely continue onward, even as more states push toward a complete ban on the obesity lawsuits.

Resources

Primary

U.S. Congress: MEAL Act

Food and Drug Administration: Summary of Changes in the FDA Food Code 2013

Additional

Bloomberg Business: McDonald’s Obesity Case Can’t Proceed as Group Suit

CBS News: McDonald’s Wins Fat Fight

Fox News: House Votes to Ban ‘Obesity Lawsuits’ Against Fast Food Industry

Center for Science in the Public Interest: Availability of Nutrition Information From Chain Restaurants in the United States

The New York Times: Teenagers’ Suit Says McDonald’s Made Them Obese

Virginia Journal of Social Policy and the Law: Fast-Food Lawsuits and the Cheeseburger Bill: Critiquing Congress’s Response to the Obesity Epidemic

Sun Sentinel: Fending Off the Big Mac Attack

Washington Post: These 26 states Won’t Let You Sue McDonald’s For Making You Fat

ABC News: Obese Man Sues Fast-Food Chains

Bloomberg Law: Where’s the Beef? The Challenges of Obesity Lawsuits

Huffington Post: Calorie Labels at Fast Food Restaurants Don’t Make a Difference

LA Times: Liability, Guns and the Law

Legal Zoom: Can You Sue a Restaurant For Making You Obese?

The New York Times: McDonald’s to Start Posting Calorie Counts

NPR: Nutrition Labels For Fast Foods

Organic Consumers Association: Junk Food/Obesity Lawsuits Alarm U.S. Food Giants

Politico: The Plot to Make Big Food Pay

Time: Can You be Fat and Fit — or Thin and Unhealthy?

Noel Diem

Law Street contributor Noel Diem is an editor and aspiring author based in Reading, Pennsylvania. She is an alum of Albright College where she studied English and Secondary Education. In her spare time she enjoys traveling, theater, fashion, and literature. Contact Noel at staff@LawStreetMedia.com.

The post Obesity Lawsuits: Who’s to Blame When Fast Food Makes You Fat? appeared first on Law Street.

Multiple public and private agencies make up the child welfare systems across the country. Although the primary responsibility falls on the shoulders of state governments, the federal government supports the states through funding, program development, and legislative initiatives. Both state and federal governments are essential to the process. The child welfare system’s mission is to create safe and permanent environments for children and to strengthen family units. It is an immense and complex project. So immense and complex, however, that important aspects of child safety fall through the cracks. Oversights are often devastating. Read on to learn more about the challenges that abate the U.S. Child Welfare Systems’ mission.

Overview of Child Welfare Systems

Child welfare systems generally do the following:

Receive and investigate reports of possible child abuse and neglect, provide services to families that need assistance in the protection and care of their children, arrange for children to live with kin or with foster families when they are not safe at home, and arrange for reunification, adoption, or other permanent family connections for children leaving foster care.

Public and private agencies also work to provide services such as “in-home family preservation services, foster care, residential treatment, mental health care, substance abuse treatment, parenting skills classes, domestic violence services, employment assistance, and financial or housing assistance.”

The Children’s Bureau, part of the Department of Health and Human Services (HHS), is the primary federal institution working with state and local agencies to implement federal child and family legislation. Collaboratively, they create programs that prevent child abuse and neglect. Such efforts are authorized by the Child Abuse and Treatment Act (CAPTA) of 1974. CAPTA provides “federal funding to states in support of prevention, assessment, investigation, prosecution, and treatment activities” and awards “grants to public agencies and nonprofit organizations for demonstration programs and projects.”

The Process

First, a concerned person reports suspected child abuse or neglect. More often than not, this person is a “mandatory reporter,” a person required by law to submit a report if he or she suspects child abuse or neglect. Mandatory reporters include individuals who have regular contact with children such as social workers, school personnel, healthcare workers, mental health professionals, child care providers, medical examiners or coroners, and law enforcement officers. Approximately 48 states and other territories have mandatory reporter laws. In many states, every person, regardless of occupation, is legally required to make such a report.

After a report is submitted, it is either “screened in” or “screened out” depending on the amount of information and sufficiency of evidence. If a report is screened in, a Child Protective Services Caseworker will come in and assess the situation. He or she will talk to the child and relatives. If a child is suspected of being in immediate danger, then the child will be brought to a shelter, foster home, or relative’s house while the investigation plays out. At the end of the investigation, the case worker will typically either find the case unsubstantiated or substantiated depending on the evidence. The agency can then initiate a court action if it feels the authority of juvenile court is required during the trial in order to remove the child from the home. In substantiated cases where there has been child abuse or neglect, the threat is labeled as low, moderate, or high. Depending on the severity of the case, the caseworker may recommend community-based resources and service systems, or recommend complete removal of the child from the home. Low-risk parents are often provided support or treatment services, while high-risk parents may be indicted on criminal charges.

Child Welfare System Challenges

Many of the most severe challenges in the Child Welfare System lie in the Foster Care System. Nearly 400,000 children in the United States are living in the foster care system without permanent families.

Over-Institutionalization of Children

You don’t need to be a licensed therapist to know that a positive family dynamic is essential to a child’s well being and mental health. Today, a disturbing amount of children in the child welfare system are placed in institutions rather than homes. Approximately 57, 000 children are living in group placements. The Annie E. Casey Foundation, a children’s advocacy group, recently published a report on this serious issue, advocating that “secure attachments provided by nurturing caregivers are vital to a child’s healthy physical, social, emotional and psychological development throughout his life.”

Children in group placements are at greater risk of abuse and arrest. One in seven children in the child welfare system lives in group placements and 40 percent of those children do not have “documented behavioral or medical need that would warrant placement in such a restrictive setting.” Young people stay in group placements for an average of eight months, although research recommends a stay of three-to-six months for those who require residential treatment. Kids in group placements also suffer from an inappropriate mixing of ages. According to the Society of Research in Child Development, young adults are more susceptible to peer influence. Younger children can suffer from being placed with older kids with behavioral health problems.

Insufficient Background Checks

A major source of controversy in the child welfare system is adequate background checks performed by case workers. There is an overload of cases of foster parents with a criminal background taking in children. For example, Oklahoma is currently under investigation for child abuse and neglect in its foster care system. A recent report, conducted after the death of a 20-month-old boy in foster care, showed that less than 5 percent of the 125 cases investigated for abuse in Oklahoma contained criminal background checks for foster parents.

Caseloads

Caseworkers across all child welfare systems consistently have extensive caseloads. The more cases, the less time and effort a caseworker can devote to each individual child. It also minimizes the ability for a child and caseworker to develop a meaningful relationship, and caseworkers are sometimes blamed for child abuse or neglect in foster homes under their supervision. For example, Catherine Davis, a family services agency caseworker in New Jersey, was suspended after seven-year-old Faheem Williams was found starved to death in his home. His two brothers were also malnourished and burned. Davis had somewhere between 99 and 107 cases. The Child Welfare League of America recommends that “workers carrying ongoing in-home protective services cases…carry no more than 15-17 families.”

Aging Out

When foster children turn 18, they age out of the child welfare system. Many of these children move forward with very little or no support at all. In 2012, 23, 396 foster children aged out of the system. Almost 40 percent were homeless or couch surfing, and 48 percent were unemployed. Fifty percent experienced issues with substance abuse, while 60 percent of the young men had been criminally charged. Nearly a quarter of those aging out did not obtain a high school diploma or GED, and only six percent had graduated with a two or four-year degree.

Case Study: Active Class-Action Suit MD. vs Perry

On behalf of the children in the Texas child welfare system, the Children’s Rights Law Firm of New York, along with co-counsel Haynes & Boone, Yetter Coleman and Canales & Simonson, filed suit against the state of Texas  for “violations of plaintiff children’s constitutional rights, including their right not to be harmed while in state custody and their right to familial association.”

M.D. is one representative of the plaintiff children. She entered foster care at the age of eight. Although initially sent to live with relatives, she returned to state custody after sexual abuse occurred in the home. She moved to multiple placements, including group institutions, where her mental health suffered. When the original complaint was filed, M.D. “lived in a restrictive short-term therapeutic placement with no visitors or basic privileges.”

The main focus of Children’s Rights in this suit is to give children in the Texas welfare care system permanency, whether obtained from reunification with relatives or adoption. Children’s Rights primarily looked at cases where the child had been in foster care for a minimum of 12-18 months, as after a year to a year and a half, foster children’s success rates plummet. Chances for emotional and psychological distress increase and they often act out and exhibit unruly behavior, severely ruining their chances for adoption/permanency. Children without a permanent home age-out without any kind of safety net.

The suit was filed March 29, 2011 and is currently in progress. Children’s Rights is currently in litigation with eight other states as well.

Conclusion

Child welfare systems are broken and reform is inevitable. Travesties occur way too often and are not publicized enough. We need to give foster children a fighting chance to survive on their own after 18. That starts with creating a safe and permanent environment for them while in the welfare system. Turning 18, after a lifetime of struggle and little support, does not make an adult. Fortunately, there are multiple advocacy groups across the country on a mission for reform.

Sources

Primary

Child Welfare Information Gateway: How the Child Welfare System Works

Additional

AFSCME: Caseloads

Annie E. Casey Foundation: Too Many Kids in U.S. Child Welfare Systems Not Living in Families

CCAI: Facts and Statistics

Children’s Rights: In Oklahoma, Asking a Few Questions Might Have Prevented a Boy’s Tragic Death

Child Welfare Information Gateway: Mandatory Reporters of Child Abuse and Neglect

The New York Times: Caseworkers Say Overload Makes it Risky For Children

Society of Research in Child Development: The Detrimental Effects of Group Placements/Services For Youth With Behavioral Health Problems

Jessica McLaughlin

Jessica McLaughlin is a graduate of the University of Maryland with a degree in English Literature and Spanish. She works in the publishing industry and recently moved back to the DC area after living in NYC. Contact Jessica at staff@LawStreetMedia.com.

The post The Child Welfare System: Kids Falling Through the Cracks appeared first on Law Street.

Violating criminal law can lead to considerable expenses, including pre-trial, court, prison, and post-release fines and fees. The growing debt of those who are released from correction facilities is not helping them to integrate back into society, but rather leads to more crime and poverty. Read on to learn about criminal justice fines and fees, and how they affect vulnerable populations.

How high are criminal justice fines and fees?

When people enter the criminal justice system, they may find themselves trapped by steep fees associated with pre-trial, sentencing, corrections, and post-release. As a person moves through the system, fees and fines follow. On average, such fees and fines can amount to $14,000-$25,000 for those who were convicted of drug-related charges. In one case, a woman owed nearly $100,000–an immense burden for someone re-entering society after serving years behind bars. In many cases, small fees pile up and can reach thousands of dollars. According to the latest estimations, 10 million Americans collectively owe more than $50 billion in fines and fees–debt accumulated through the criminal justice system. Most of them are convicted of non-violent and, often, drug-related offenses. They are also disproportionately poor and minorities. Surprisingly, even a minor infraction can result in jail time for those who are poor and unable to pay fines and related fees.

How does the system of fines and fees work?

Fines are “monetary charges imposed upon individuals who have been convicted of a crime or a lesser offense.” It can be a traffic violation or any other crime, but fines for drug crimes are notoriously high. Oklahoma Watch gives some estimates of fines for drug-related offenses:

A conviction for sale or distribution of 25 to 1,000 pounds of hashish or concentrates comes with a maximum $100,000 fine…A third misdemeanor conviction of possessing marijuana paraphernalia brings a maximum one year in prison and $10,100 fine.

At the same time, a felony count of driving under the influence amounts only to $443, a big difference from drug crimes that can lead to tens of thousands of dollars in fines, and, in some cases, a lengthy prison sentence.

If a fine is imposed as a result of a crime, fees are charged for administration and providing services, or simply to supplement state and local budgets. There are a myriad of fees that American courts, prisons, and probation services impose on those who are channeled through the criminal justice system.

Pre-Trial Fees

Pre-trial fees are charges that are imposed on a person prior to a formal conviction. It starts with a fingerprinting fee ($5) and a jail fee for pre-trial incarceration ($25). An application fee to obtain a public defender could be also quite costly, ranging from $10 to $400 depending on the state. At least 43 states and the District of Columbia bill defendants for a public attorney. In some states this fee cannot be waived even for the poorest of defendants. In Florida and Ohio, a public defender fee is required even if charges are eventually dropped. Often, public defender fees are imposed when one applies for a public attorney, during the initial court proceedings, and at the end of the trial–the so-called public defender reimbursement fee. If one wants to post bond to be released while court proceedings are taking place, the bond fee is required (around $35) plus the bond amount determined by the judge. Some states also bill defendants for their own arrest warrants and charge a fee for a jury trial. For example, in Washington, a six-person jury costs $125, while a 12-person jury is twice as much.

Sentencing Fees

During the sentencing process a person is charged with a crime and either convicted or acquitted. In most drug cases, defendants plead guilty as mandatory sentencing laws can land one in prison for a long time versus pleading guilty to a lesser charge that requires probation supervision or a short period of time in jail. In any case, one ends up paying fees for court administrative costs, designated funds that can include libraries and prison construction, and prosecution reimbursement fees.

Courts often order lab tests, including DNA collection and drug testing. The fees for lab analysis can reach $165. If mandatory drug treatment is ordered, one has to make payments to revolving funds for drug education ($155) and any additional fees associated with drug treatment.

Other fees can be collected to assist crime victims. These fees are usually paid to a trauma-care fund, or for mental-health services for the victim. At the same time, restitution payments can be ordered to compensate a victim.

In Washington, a convicted person is presented with the Legal Financial Obligations (LFO), which include fines and fees as well as other costs associated with a case. In addition to the initial amount of the bill, the state charges 12 percent interest and $100 per year for a collection fee if one chooses to pay over time. The average felony conviction bill is around $2,540, and LFO cannot expire or be discharged in bankruptcy.

Some courts offer community service as an alternative to paying fees. But even this scenario has a catch. Courts can charge a day fee, usually around $5 every time one shows up for community work.

Incarceration Fees

The practice of charging inmates for their own incarceration, including clothing and doctors visits–the so-called “pay-to-stay”–was pioneered in the state of Michigan in 1984. As of now, at least 43 states charge inmates for room and board in jail and prison. Some state prisons charge only those inmates who are on work release or have a prison job, while others deduct money from inmates’ commissary accounts. When talking about jails, most of them operate on a per diem charge. Simply put, it’s a daily cell rental. Each county is free to decide the amount of this charge, with some reaching as high as $60 per day in California, or as low as $1 in Virginia.

Inmates in 35 states are charged for medical expenses while incarcerated. Most states require inmates to pay for every single doctor’s visit, around $5 each. Others, like Texas, charge a $100 yearly fee if a person visits a doctor at least once during that year. Three states–Missouri, Nevada and Michigan–charge their inmates for clothing. Tennessee joined that list in 2013, also charging for blankets, towels, and toilet paper.

Some county jails have been transformed into forms of involuntary hotels. In Fremont, California, inmates are offered more comfortable and rather small amenities for a one-time fee of $45 and an additional $155 per night. Many other states have similar practices.

In many states, released inmates are still liable for fees associated with their incarceration. In Florida and Wisconsin, if a formerly incarcerated person dies, his property can be confiscated for any unpaid debt.

Post-Release Fees

In 44 states, people sentenced to probation or released on parole are required to pay for their own supervision. Costs of probation can go up to $80 per month, and many states require a one-time fee to enter a parole program. Pennsylvania charges $60 to all those who were released on parole.

Costs of probation supervision can go even higher if one requires an electronic monitoring device. All states except Hawaii and the District of Columbia require a rental fee for electronic monitoring devices. In some states, parolees can pay up to $300 a month for their own electronic monitoring supervision.

When a person is convicted of drunk driving, his license is often revoked and he is required to install a vehicle interlock device that contains built-in drug test that a person is required to take in order to start the engine. In both cases there are fees for installment and maintenance of the device and for reinstatement of a license.

Other expenses can include fees for mandatory drug or alcohol treatment, therapy, and drug testing. Mandatory drug testing in drug court can cost between $80 to $100 per month.

Other Fees and Penalties

The overwhelming majority of people released from correctional facilities pay for court and prison-related costs through monthly installments that incur additional costs, including interest, payment plan fees, collection fees, and late fees. In Florida, failure to pay a fee can result in a $300 surcharge, while in California there is a 40 percent surcharge that has to be paid to private collection agencies. Some states go even further, allowing courts to send people back to jail or prison for not being able to pay their fines and fees, and for the failure to appear at court hearings about their debt. Some states, like Missouri, also allow inmates to trade their debt for more jail time, by crediting inmates with $10 per day toward their fines and fees. In addition, in some counties people can lose their license, food stamps, and even be denied the right to vote until all the debt is paid. But, perhaps, the most disturbing practice is when, due to small traffic fees, low-income people end up in debtor jails.

What are the issues with fees and fines?

The primary reason why states increase fees and introduce new ones is their lack of resources. With the War on Drugs, the number of admissions to prisons skyrocketed, forcing states to introduce new fines in order to support their budgets. In Oklahoma, the number of criminal justice fees increased from 23 to 63 since 1992. Since 1996, Florida came up with 20 new fees as well. As a result, there are a myriad of fees that add up to a considerable sum of money, especially for impoverished and unemployed people. Fines and fees are practically charged for anything and everything, including public attorneys, jail cells, court litigation, prison beds, and probation services. Fines and fees are expensive and omnipresent at every step of the justice system.

Discrimination Against the Poor 

Poor people face more difficulties paying their criminal justice bills. The majority are African Americans and Latinos. As these groups are historically marginalized and impoverished, even a relatively small bill could be an immense burden. For that reason, poor people have considerable disadvantages and are discriminated against for simply “being poor.” Some of them may also have mental illness, substance abuse problems, and child support payments to juggle. Adding jail time and debt is a recipe for a failure. Needless to say, poverty isn’t a crime and inability to pay criminal justice fines should never lead to incarceration. But, in America it does, with local jails being transformed into debtors prisons. As many poor people end up in debt and unable to pay steep fines and fees associated with their cases, they are thrown in jail. It’s partly due to aggressive collective practices by local and state courts, administrated through for-profit probation services. Currently, 13 states allow their municipalities to outsource probation to the private sector. As U.S. News & World Report explains:

If an offender is found guilty and can’t pay his or her fine on the spot, he or she is referred to the private probation company, which will usually establish a payment plan and oversee the person until the fine is paid in full. If the person falls behind on their payments, they become subject to having their probation revoked and in some cases could face jail time.

Barriers to Re-Entry & Recidivism

The system of fines and fees is not particularly helping those released from correction facilities. Formerly incarcerated people already face multiple barriers to re-entry into society. It’s extremely hard to find a decent-paying job with a felony conviction as every job application requires disclosure of convictions. If a person can’t find a job and has debt, or worse, is homeless, his life chances diminish considerably. Steep fines and fees perpetuate more crime and poverty, leaving formerly incarcerated people powerless and without any prospects for the future.

Fines and Fees Don’t Save States Money

The current system of fines and fees isn’t saving money or raising revenue for the states because it requires vast resources to maintain and support clerks, attorneys, judges, and probation officers, all those who collect fees and fines from offenders. In the end, prisons spend more money on incarceration than in collected fees, due to the fact that the majority of inmates are poor and unable to pay those fees. Almost a quarter of inmates go to homeless shelters after release and many are unemployed for years. Essentially, the system doesn’t produce the intended results, but delivers unintended negative consequences.

Conclusion

It’s understandable that states are trying to balance budgets through fines and fees, but how far is too far? Criminal justice system fees and fines accumulate into immense debt for the most vulnerable citizens. Poor people are punished for being poor with more fees and jail time, while those who are released from prison face more barriers to re-entry. Courts and prisons are still spending more than they are making. In this scenario, everybody looses.

Resources

Oklahoma Watch: Prisoners of Debt: Justice System Imposes Steep Fines, Fees

Time: Welcome to Prison. Will You Be Paying Cash or Credit?

ACLU: Modern-Day Debtors’ Prisons: The Ways Court-Imposed Debts Punish People for Being Poor

NPR: As Court Fees Rise, the Poor Are Paying the Price

Guardian: America Cannot Lock its Poor in Debtor’s Prisons to Fund its Police Departments

U.S. News & World Report: Private Misdemeanor Probation Industry Faces New Scrutiny

Knoxville News Sentimental: Low-Income Criminal Defendants Face Mounting Fees, Even for Public Defenders

Brennan Center for Justice: Criminal Justice Debt: A Barrier to Reentry

Brennan Center for Justice: Tennessee Inmates Must ‘Pay-to-Stay’

Valeriya Metla

Valeriya Metla is a young professional, passionate about international relations, immigration issues, and social and criminal justice. She holds two Bachelor Degrees in regional studies and international criminal justice. Contact Valeriya at staff@LawStreetMedia.com.

The post Debtor’s Prison: How Fines and Fees Trap Poor Americans in the Justice System appeared first on Law Street.

There has been a lot of talk lately about police brutality in connection with the killings of unarmed Black men. As a result of these discussions, the issue of police militarization has also become a hotly contested topic. Do we need highly militarized police forces in our communities? What are the issues behind government-sponsored militarization practices? Read on to learn about the history of police militarization, the main issues, and the current efforts to demilitarize.

How have our police become militarized?

The Third Amendment to the U.S. Constitution states:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Thus, the distinction between police officers and soldiers was stipulated in the Bill of Rights. This fundamental principle was further codified in the Posse Comitatus Act of 1878 that limits the power of the government to operate military forces inside its borders. It was clear from the beginning that the police should maintain peace inside the country, while military troops protect U.S. interests outside the borders.

During the Prohibition Era, criminal syndicates became involved in the  manufacturing and distribution of alcohol in the United States. At that time, the police also became more militarized, deploying armored cars and automatic weapons to counteract illegal alcohol “bootlegging.”

During the race riots of the 1950s-60s, police militarization continued. The Watts Riots of 1965 played a crucial role when SWAT teams were deployed to combat the violence. The upturn in the usage of battlefield weapons can be traced to this period as well.

The 1970-80s were marked by the rise of drug trafficking and the inception of the Medellin Cartel, one of the most powerful international narcotic rings. At the same time, street gangs began to hold considerable weapons arsenals, resulting in shoot outs and gun violence in some inner-city neighborhoods. As drug traffickers and local gangsters were heavily weaponized, police continued militarizing their departments as well.

But the most profound transformation came with the inception of the War on Drugs, initiated by President Richard Nixon in the early 1970s. During this time, the federal government started its long-term attempts at militarization and weaponization of local law enforcement agencies, primarily to enforce drug laws. Thus, the practice of transferring the army’s military equipment to police departments was born. The 1981 Military Cooperation with Civilian Law Enforcement Agencies Act established close ties between the U.S. military and police by allowing military forces to aid police departments in drug and counterterrorism operations as well as in cases of civil disturbances. It’s widely believed that the War on Drugs introduced the large scale militarization of police departments, shifting the government focus from the civil unrest of the 1960s toward drug enforcement.

In 1997, the Clinton Administration created the 1033 Program, authorized by the National Defense Authorization Act. This initiative legitimized transfers of surplus military equipment from the Department of Defense (DoD) to police departments across the country to aid local law enforcement agencies in their anti-drug operations. Most of the transferable equipment came from U.S. involvement in wars, including operations in Iraq and Afghanistan. To utilize this surplus of military equipment, it was further distributed to police departments across the country, and led to police agencies even obtaining mine-resistant ambush protected (MRAP) vehicles.

After 9/11, the militarization of police departments accelerated as the Patriot Act of 2001 came into play. Since 2003, militarization has become large scale, with the federal government giving grants as well as military gear, mainly through the Department of Homeland Security (DHS).

Besides federal programs, the militarization of police was achieved through the expansion of companies that build military gear and sell it directly to police departments or the federal government. As of now, many  police departments are highly militarized with MRAT vehicles, SWAT teams, and military-grade gear, often originally intended for use in the battlefield.

How militarized is the American police force?

As was discussed above, the militarization of American police is channeled mainly through the Department of Defense (DoD) and the Department of Homeland Security (DHS). The numbers are staggering. In 1990, police departments received just $1 million worth of military equipment, but in 2013 this number reached $450 million.  By 2005, more than 17,000 police departments received military gear from the DoD. In the same vein, from 2002 until 2011, DHS dispensed $35 billion in grants to state and local police departments.

American police forces have sniper rifles, armored vehicles, and all sorts of heavy weaponry. According to the American Civil Liberties Union, at least 63 police departments received 15,054 pieces of personal protective equipment, and around 500 police departments obtained MRAP vehicles, all through government-sponsored initiatives, including the DoD’s 1033 program.

In addition, the use of Special Weapons and Tactics (SWAT) teams has greatly increased throughout the last decades. In 1980, SWAT teams were utilized only 3,000 times–now they are deployed on a regular basis, around 50,000 times a year. By 2007, more than 80 percent of police departments in large cities with populations higher than 25,000 had SWAT teams.

What are the issues against militarized police forces?

There is no doubt that police officers should be well equipped to protect peace and security in American communities. The question is whether the current level of police militarization makes our communities safer and more secure or harms the very people police departments are trying to protect. Here are some of the arguments against police militarization.

It’s Unnecessary

Police militarization is unnecessary, especially when talking about small cities that have hardly any crime. There are a myriad of towns that have few murders but huge arsenals of military-grade gear and SWAT teams. For example, there were only three murders in Keene, a small town in New Hampshire, from 1999 till 2012, but its police department has spent $286,000 on an armored personnel carrier, in addition to spendings on other military gear. Federal programs provide incentives for law enforcement to obtain military equipment, even when it’s not needed.

It’s Dangerous

Highly militarized and well trained SWAT teams were designed for deployment in dangerous situations, for example, hostage situations or mass shoot-outs. Now, SWAT teams are used in routine drug enforcement operations. Overall, 79 percent of SWAT teams are deployed to execute search warrants, while only seven percent are used in high-risk situations.

SWAT teams often force their way inside a house, use violent tactics that may inflict bodily harm or property damage to homeowners, and scare children who may suffer psychological damage after the experience. In fact, 65 percent of such teams forced their way into people’s homes, relying on “no-knock” warrants. SWAT teams are also employed to counteract illegal gambling, underage drinking, and other low level non-life threatening crimes.

It Incites Violence

According to multiple psychological studies, paramilitary police forces can incite violence in communities. It’s called the “weapons effect,” meaning that people feel the threat of violence and get ready to fight back when they encounter military-like weapons and large machinery. Simply put, the mere presence of paramilitary police forces can escalate situations and produce tensions between police and community members that could be avoided if police would engage with people in a friendly way. In 2014 alone, 623 Americans were killed by the police.

Asset Forfeiture

Some argue that asset forfeiture is one of the primary ways used to fund police militarization. Many law enforcement agencies use money obtained through asset forfeiture to buy military gear, machinery, and other military-grade equipment. In 1986, the Federal Asset Forfeiture Fund controlled $93.7 million; in 2012 the fund held $6 billion. There is an ongoing debate over whether or not asset forfeiture laws are discriminatory and unfair, with many lawmakers and politicians casting their support for changes in the matter. At the core of asset forfeiture laws is the principle that any property involved in committing a crime can be seized by the government, even if a person is not convicted or even charged with a crime. This argument holds that law enforcement chooses to raid homes to seize a house, or bust drug deals during monetary transactions to seize the cash. Such practices often happen in communities of color and focus on drug-related crimes. A 2013 investigative piece by New Yorker reporter Sarah Stillman provides that:

Thousands of police departments nationwide have recently acquired stun grenades, armored tanks, counterattack vehicles, and other paramilitary equipment, much of it purchased with asset-forfeiture funds.

No Public Oversight

Militarization of the police came into being without any public oversight. There were no public debates in this regard, and no agency was empowered to monitor military equipment transfers. The lack of transparency is evident in the inadequacy and sometimes even complete absence of records that document and track police militarization. The ACLU reports on the omission of information, deficiency in reporting, and nonexistence of government monitoring, all regarding the amount of military gear and its usage.

Communities of Color

SWAT team deployment and the overall militarization of the police increased while violent crime fell. It also coincided with the inception of the “War of Drugs,” which disproportionally targeted communities of color by raiding low-income communities and public housing in the search for drugs. According to the ACLU, 61 percent of SWAT raids were executed in minority communities, and 68 percent of those were drug related. At the same time, white people were usually targeted by SWAT teams only in serious and life-threatening situations, not drug raids. A similar argument is explained in a highly acclaimed book by Michele Alexander “The New Jim Crow: Mass Incarceration in the Age of Colorblindness,” where she talks about marginalization of Black communities and the creation of a new caste-like system based on race. According to her argument, the War on Drugs was waged to marginalize Black communities by disproportionately incarcerating young Black men. In this regard, the militarization of police was a necessary step to enforce punitive drug laws.

Police Imagery

When police officers are riding in MRAT vehicles and wearing highly militarized gear, some worry it sends the wrong message to communities. Police encounters can be highly traumatic experiences for anybody, but especially for communities of color that are often policed more aggressively. Instead of patrolling by foot and engaging with the community members, police officers use military-grade gear and painted camouflage vehicles. Thus, police officers are perceived more as soldiers fighting an enemy. As a result, the relationships between communities and police departments have become hostile. Community members are scared of the police and often don’t want to cooperate or even interact with law enforcement.

Big Business

For American companies that produce military equipment and gear, the militarization of police is a big business. Companies like Lockheed Martin and Blackhawk Industries sell their military equipment to police departments, or donate money to those politicians who favor further militarization of law enforcement. For example, politicians who voted against Representative Alan Grayson’s (D-FL) efforts aimed at limiting police militarization received on average a 73 percent increase in defense industry donations than those who supported his efforts. Besides the selling of equipment, military contractors sponsor training sessions for SWAT teams and other events to promote their products and sell them to police departments across the United States.

Current Efforts to Demilitarize Police Departments

Police militarization went largely unchallenged for decades. Only recent events, such as protests in Ferguson, Missouri, were able to shed some light on the issue of ongoing police militarization. When protests in Ferguson erupted, police met protesters with armored cars and military gear designed for battlefields. As the media was covering the events, millions of Americans were able to see the aggressive and intimidating images of highly armored police from Ferguson.

The #BlackLivesMatter movement also added fuel to the fire by demanding government to stop transferring military gear to local law enforcement agencies, and start dismantling the existing arsenals.

Eventually, the Obama Administration delivered a long-awaited response. A new policy focuses on the 1033 Program by regulating military equipment transfers, overseeing and monitoring the usage of military equipment, and reshaping police practices toward community-oriented approaches. For example, armored and weaponized vehicles as well as grenade launchers will be forbidden for transfer. Other transferable equipment will be regulated with restrictions and certain conditions for transfer. Essentially, a police department will have to justify the need for military equipment by presenting arguments and explaining precisely why and for what purposes it will be used. In addition, a new federal agency will be empowered with monitoring military equipment transfers and even conducting local compliance reviews if needed. The new policy also mentions community-based policing as a desired form of conducting police business. Police departments will have to engage with residents more, nurture trust, and build relationships with local leaders and youth in order to receive federal grants in the first place.

Conclusion

As the United States has the highest per capita gun ownership in the Western world, it’s assumed that police departments should also be highly militarized. But militarization has many issues and unintended consequences that cannot be ignored. Instead of weaponizing police officers, law enforcement officials should focus on engaging with residents and building meaningful relationships, not casting fear and intimidation with MRAT vehicles and heavy weaponry. It’s not only about limiting the 1033 Program, but reforming asset forfeiture laws, limiting aggressive drug enforcement in low-income communities, and providing clear guidelines regarding when SWAT teams are appropriate for deployment. It’s paramount that local activists and elected officials continue to demand accountability from police departments, and push the current efforts even further.

Resources

Washington Post: Obama Moves to Demilitarize America’s Police

Washington Post: Demilitarizing the Police is Not an Option. What is?

Pacific Standard: The Psychological Reason Local Police Don’t Need the Military’s Left-Over Weapons

Huffington Post: President Adopts Amendment Against Police Militarization

Economist: Disarming Warrior Cops

Economist: How America’s Police Became So Heavily Armed

Economist: Cops or Soldiers?

International Business Times: Police Militarization History Stretches Back to Civil Rights Movement

American Civil Liberties Union: War Comes Home: The Excessive Militarization of American Policing

Alternet: 11 Shocking Facts About America’s Militarized Police Forces

1920-30: Prohibition

National Gang Center Bulletin: History of Street Gangs in the United States

New Yorker: Taken

Valeriya Metla

Valeriya Metla is a young professional, passionate about international relations, immigration issues, and social and criminal justice. She holds two Bachelor Degrees in regional studies and international criminal justice. Contact Valeriya at staff@LawStreetMedia.com.

The post The Militarization of American Police: How Far is Too Far? appeared first on Law Street.

A Human Rights Watch report released this month titled “Callous and Cruel: Use of Force Against Inmates With Mental Disabilities in U.S. Jails and Prisons,” reported on the treatment of mentally ill inmates in prisons. The report documented major abuses in the prison system and major flaws in the availability of mental health services, and indicates that mentally ill do not do well in the American prison system. But why do they end up in correctional facilities in the first place? Read on to learn about mental health care in the United States and how it intersects with criminal justice.

How many mentally ill people are in correctional facilities?

People with mental illnesses are heavily represented in correctional facilities across the United States. In 2006, mentally ill inmates numbered 705,600 in state prisons, 78,800 in federal prisons, and 479,900 in local jails. In 2009, mentally ill individuals were on parole and probation at rates two to four times the general population. As of 2012, there were 356,368 mentally ill inmates in American jails and prisons. At the same time, psychiatric facilities hosted only 35,000 mentally ill patients, ten times less than the number of mentally ill inmates housed in correction facilities.

By various estimations, 20 percent of jail inmates and 15 percent of state prisoners, including violent and non-violent offenders, have some sort of mental ailment. Some of them were born with mental illnesses, while many acquired mental disabilities as the result of various circumstances. 

Why are so many mentally ill Americans in the prison system?

In order to understand why so many mentally ill Americans end up in correctional facilities instead of psychiatric hospitals, it’s important to look at the history and the changing dynamics of mental health care in the United States.

Using prisons and jails to house mentally ill people is not a new phenomenon. In fact, from 1770 to 1820, individuals with mental disabilities were routinely confined to correctional facilities. This practice was condemned as cruel and inhumane. As a result, the government asserted its obligation to care for and treat mentally ill people in a more suitable environment, creating a wide net of mental health hospitals across the country. Before the 1940s, the majority of mentally ill individuals, especially those with severe mental ailments, were housed in public mental institutions.

This situation changed in the beginning of 1950s. The government was again criticized for the inhumane treatment of mentally ill patients, now housed in psychiatric facilities, resulting in the inception of the deinstitutionalization movement. From this point on, instead of providing treatment and care in public mental hospitals, the government shifted the policies toward community-based treatment centers. The deal was sealed by the Mental Health Centers Act of 1963 that pushed mental health care away from state-run psychiatric hospitals and toward community-based centers. These changes allowed those with mental ailments to live in the community while receiving treatment at nearby mental facilities.

But in practice, this shift in policies created a disconnect between the care and treatment of mentally ill people, especially those with severe and chronic mental ailments. After deinstitutionalization, many were left without needed care as the government’s focus shifted toward outpatient mental services.

Shifting mental health policies toward outpatient services and breaking the link between treatment and care resulted in the decline of inpatient care and depreciation of state mental hospitals. In 1959, public psychiatric hospitals housed 559,000 mentally ill patients, by the late 1990s there were only 70,000 patients in such facilities. Now, there are only 35,000 patients in psychiatric hospitals, the lowest number in decades. Most states don’t even have enough psychiatric beds. From 2009-2012, the government disposed of 4,500 beds in public psychiatric hospitals. For example, Connecticut has only 20 beds per 100,000 people, while the nationally recommended standard is 50 beds per 100,000 people.

Thus, the deinstitutionalization of mental health services shifted public spending toward prescription drugs and outpatient treatment, largely ignoring the needs of those mentally ill people who required inpatient treatment. At the same time, access to outpatient mental health services proved to be worse than access to any other health services. In 2010, there were 156,300 mental health counselors in the United States. It’s estimated that 89.3 million Americans are living in areas that lack mental health professionals.

Mental health care is very expensive. In fact, 45 percent of people who suffer from some sort of mental illness fail to receive appropriate treatment due to the high costs associated with mental health services. A quarter of those who are mentally ill and have sought outpatient mental health services end up largely paying for treatment themselves, with out-of-pocket costs ranging from $100 to $5,000.

From 2009 to 2012, state governments, who pay most of the mental health care costs, also cut $5 billion from their funding overall, negatively influencing the availability and price of outpatient mental health services. 

The failure of the current mental health system to treat and care for people with severe and chronic mental illnesses paired with the lack of access to outpatient services is what has brought so many mentally ill people into the prison system. Those who have severe and/or chronic mental illnesses and cannot get access to outpatient mental health treatment, often end up in the criminal justice system. Before deinstitutionalization mentally ill people with severe and chronic illnesses were hospitalized, reducing their chances to break the law and come in contact with law enforcement. Some experts argue that beginning in the 1970s the United States has turned back toward incarceration practices resembling the 1800s paradigm of confining mentally ill people instead of treating and caring for them.

How do people with mental illnesses end up in the prison system?

Often, mentally ill people are arrested for crimes that could be avoided with proper mental health treatment or inpatient services. Those crimes are more bothersome than dangerous, and can include disorderly conduct, trespassing, disturbing the peace, and public intoxication. 

As 25-50 percent of mentally ill people in American prisons also suffer from substance abuse disorders, and 60 percent reported using drugs, alcohol, or both a month prior to their arrest, substance abuse issues can increase the likelihood of people with mental illnesses ending up in jail or prison. 

After initial contact with law enforcement, mentally ill individuals go through the court system. Due to harsh drug sentencing policies, such as “zero tolerance” and mandatory sentencing for certain drug offenses, mentally ill people are often sentenced to jail or prison terms.

All in all, those with mental disorders have a higher chance of coming into contact with law enforcement, mostly due to their mental condition. If they are regularly using drugs or alcohol, the chances are even higher. But, instead of offering treatment and support services to those with mental illnesses, the American justice system often uses the most punitive approach: incarceration.

What are the issues with incarcerating mentally ill individuals? 

Inadequate Staff Training

Inadequate staff training is one of the most important issues when talking about mentally ill people in the prison system. Many correction officers and jail deputies receive no guidance in how to interact with mentally ill inmates. Prison staff often don’t recognize symptoms of mental illness, nor do they use appropriate techniques, such as verbal de-escalation, when communicating with such inmates. Even when mental health professionals are available in the vicinity of the prison, guards rarely call for their intervention.

Physical Abuse

According to the recent Human Rights Watch Report, mentally ill inmates in American prisons and jails are regularly abused, including physically, by prison staff. The study cites the use of chemical sprays and stun guns as well as strapping mentally ill inmates to chairs and beds for prolonged periods of time. 

Solitary Confinement

Besides the fact that mentally ill inmates often suffer from physical abuse from prison or jail staff, they are also more often held in isolation, sometimes for months. According to a 2010 audit of three state prisons in Wisconsin, 55-75 percent of inmates in solitary confinement were mentally ill. Prolonged isolation of such inmates can exacerbate their conditions and increase symptoms of mental illness, often resulting in more misconduct instead of compliance.

Management Problems

As life in correctional facilities is heavily regulated and supervised, mentally impaired individuals can experience issues following rules, creating additional problems for prison guards. In many cases, their behavior is symptomatic, meaning that it’s conditioned by mental illness. They can  refuse to follow orders, and sometimes injure themselves, all things that can disrupt the daily routines of correction officers and other inmates. In some cases mentally ill inmates are provocative and can pose a danger to themselves or others.

Lack of Treatment

As prisons are not psychiatric hospitals, they often lack  mental health services as well as mental health professionals. Inmates are often not properly diagnosed, don’t have timely access to mental health services, and are often treated with medications only. Correctional facilities cannot usually aid mentally ill inmates in their recovery or even alleviate symptoms of their mental illnesses. In fact, the most helpful procedures for mentally ill patients are often not used in correctional facilities. Mentally ill inmates rarely receive therapeutic mental health interventions or participate in psychiatric rehabilitation programs.

Longer Stay

Mentally ill inmates usually stay in the prison system longer than those who have no mental issues. There are two primary reasons for this. First, mentally ill inmates can be less obedient due to their mental disorder, leading to additional charges and prolonged sentences. The other reason centers on the long waiting periods for beds in psychiatric hospitals. For example, in Florida’s Orange County Jail the average stay for mentally ill inmates is twice as long than for those without mental illnesses. In New York’s Riker’s Island Jail, the average stay for a mentally ill inmate is even longer—215 days–compared with 42 days for inmates without mental ailments. 

It’s Expensive

The cost of holding mentally ill inmates in prisons and jails is higher than average. This is due to the higher spendings on mental health services, including medications and staffing. It’s estimated that mentally ill inmates cost $130 a day, $50 more than average. The overall cost of incarcerating mentally ill inmates can be two to three times higher than average. 

Suicide & Rape

Mentally ill inmates are more likely to commit suicide than inmates who do not have mental illnesses. Multiple studies confirmed that the harsh prison conditions and the lack of proper treatment can increase the odds of suicide for this population. For example, a 2002 study of a Washington county jail noted that 77 percent of all suicides were committed by inmates with a mental illness. Sexual assault is another danger for mentally ill inmates. Many are are sexually assaulted, and their likelihood of being raped is higher than the general population in American prisons and jails. 

Watch the video below to get a full picture of mental health behind bars:

Conclusion

It’s evident that there are many issues with incarceration of mentally ill people, as there are many shortcomings and flaws in American mental health care, especially in prisons and jails. Such a system creates a cycle of incarceration for mentally ill people, by providing no remedies after the initial release. States should invest in more beds in public mental hospitals and provide better access to outpatient community treatment programs. It’s time to start treating and caring for the mentally ill, not just incarcerating them. 

Resources

Primary

National Institute of Corrections: Mentally Ill Persons in Corrections

Additional

Health Affairs: Mental Health Policy in America: Myths and Realities

The New York Times: Mentally Ill Inmates Are Routinely Physically Abused, Study Says