Check out the best legal tweets this week!

Extinction

Me turning the page to the LSAT Logic Games section: pic.twitter.com/U3nLA049JR

— Will Shelden (@trillshelden) February 4, 2017

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.

The post Best Legal Tweets of the Week 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.

False confessions happen, and they happen with a surprising and baffling frequency–approximately 25 percent of wrongful convictions involve some sort of false confession. We know some of the reasons that false confessions occur, including police coercion, but the psychology of why there are so many false confessions remains fuzzy. But a new study conducted at Michigan State University may shed some light on that question–it’s really pretty easy to get a false confession out of an individual who is sleep deprived.

Kimberly Fenn, who runs the sleep lab at Michigan State University and Elizabeth Loftus, a psychologist at the University of California-Irvine, were joined by two of their former PhD students for the study. The study involved 88 student participants who were asked to complete simple computer tasks, but were warned not to press the “escape” key on the keyboard. The researchers told the participants that if they hit that key, the data from the study would be lost. Then, they made half the students stay up all night, while the other half got a full night’s sleep. The next morning, they were interrogated about whether or not that they had pressed the escape key and erased all that data. According to the study, 50 percent of the participants who were sleep-deprived gave a false confession when first asked, in comparison to the 18 percent of not-sleepy students. When a second opportunity was given, 68.2 of the sleep-deprived subjects confessed to something they didn’t do, in comparison to 38.6 of the well-rested participants.

While it may not make sense to most of us why someone would give a false confession, being interrogated is often exhausting and frustrating, and sometimes abusive, and individuals may just want it to stop. So, a person being interrogated may give a false confession just to get the interrogator off their backs, assuming that because they’re obviously not guilty it won’t really matter and their innocence will be quickly discovered. Saul Kassin of Williams College explained:

There are two types of false confessions that come about from police interrogation…These are situations in which people who know they are innocent reach their breaking point. They are under stress and will do whatever it takes to escape the immediate short-term punishing situation—even if it involves a possible negative consequence later.

He also told Smithsonian Magazine that another way that false confessions come about is that someone becomes convinced of their own guilt based on the evidence he is shown and “internalizes” it. Sleep deprivation could play a role in both of those types of false confessions, and it’s fairly common for suspects to be interrogated for long periods of time or at night. According to the Innocence Project:

The report says that around 17 percent of custodial interrogations happen between the normal sleeping hours of midnight and 8:00 a.m., and that the majority of false confessions occur during interrogations which last longer than 12 hours, with many lasting longer than 24 hours.

So, will we start seeing a change to the way that police interrogate suspects? Maybe, although this study on students obviously isn’t a perfect match to the conditions faced by potential suspects. But it does shed some light on a phenomenon that can be hard to understand–and that’s going to be a first step to combatting the alarmingly high number of false confessions in the U.S.

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.

The post False Confessions and Sleep Deprivation: New Study Shows Worrisome Link appeared first on Law Street.

A New York man named Kalief Browder, who spent three years behind bars without a trial after being accused of a robbery in 2010, committed suicide this past Saturday in his Bronx home. His story is now raising questions for many about the prevalent injustices inherent in our prison system.

In 2010 Browder, then 16, was arrested on suspicion of stealing a backpack. He was eventually sent to Rikers Island where he would spend three years awaiting a trial that he hoped would prove his innocence. Browder spent roughly two of his three years in solitary confinement suffering intense physical and emotional abuse and was severely beaten by officers and other inmates. He also attempted suicide at least six times.

In a 2013 New Yorker interview with Jennifer Gonnerman, Browder recalled punishments he would receive from the guards for attempting to commit suicide. Browder recalled one incident where he ripped off the sheets of his bed in his jail cell and fashioned them into a noose. When he was about to hang himself, guards stormed into his cell, tackled him into his bed, and punched him repeatedly. As a punishment for this suicide attempt, the guards starved Browder for up to four meals at a time.

In 2013, he was allowed to go home after the charges against him were dropped. He never had a trial. 

His attorney, Paul Prestia, described the difficulties that he faced after leaving prison, saying, “every day was a struggle. He lived with a degree of sadness every day since his release.” Prestia said:

When he came out [of jail] and I first met him, he was completely broken — I had to show him how to use a computer; he had to get a job. These were issues he was going to have for his whole life. It’s not his fault. He didn’t deserve that.

After his release, Browder experienced deep bouts of depression and became increasingly paranoid. Six months after his release, Browder attempted suicide, and was hospitalized. During his time in the hospital, Browder was said to be gaunt, restless, and deeply paranoid. While he was eventually released from the hospital, and succeeded for some time–at one point earning a 3.5 GPA at Bronx Community College and tutoring GED students, these issues appear to have persisted. Browder committed suicide on June 6; he had just turned 22 years old.

Browder’s story is deeply tragic and problematic. Someone stuck in a prison for three years waiting for a trial should not be subjected to severe beatings, starvation and other mistreatments. Of the 10,000 inmates at Rikers Island, about 1,500 have been there for the last year without being convicted of a crime. It’s hard to determine how long the wait for a trial usually is; some statistics say a few months, while others wait several years. In Browder’s case, a real trial was never had, and he was released without the necessary resources.

The horrible facts of Browder’s incarceration echo multiple concerns about the way we treat our nation’s prisoners, particularly the racial inequalities in the justice system. The U.S. is said to currently imprison a larger percentage of its Black population than South Africa did at the height of apartheid. African Americans are incredibly overrepresented in prisons. Despite making up only 13 percent of the population, they made up 38 percent of state prisoners in 2011. This highly problematic reality is highlighted by cases like Browder’s: how many lives must end before citizens, particularly African-American men, are treated fairly in our justice system?

There are also concerns specifically about Rikers Island that are now coming to light. A report from the U.S. Department of Justice described “rampant use of unnecessary and excessive force” by guards against teenage inmates on Rikers Island. Surveillance footage obtained by Gonnerman shows Browder being beaten by a guard and assaulted by a large group of inmates. Prestia points out that the fact that this kind of treatment happened in the U.S. is shocking, stating:

When you go over the three years that [Browder] spent [in jail] and all the horrific details he endured, it’s unbelievable that this could happen to a teen-ager in New York City. He didn’t get tortured in some prison camp in another country. It was right here!

In April in a statement provided by the New Yorker, New York City Mayor Bill de Blaiso said that Browder’s “tragic story put a human face on Rikers Island’s culture of delay — a culture with profound human and fiscal costs for defendants and our city.” Since Browder’s release some progress has been made and de Blaiso’s administration has issued a series of major reforms at Rikers. For example, it was able to end the practice of putting 16 and 17-year-olds into solitary confinement. While that’s certainly progress, the tragic end to Browder’s story still brings up many seriously problematic issues that are far from being solved.

Angel Idowu

Angel Idowu is a member of the Beloit College Class of 2016 and was a Law Street Media Fellow for the Summer of 2015. Contact Angel at staff@LawStreetMedia.com.

The post What Kalief Browder’s Tragic Story Tells Us About the Prison System appeared first on Law Street.

Lawsuits, crime, and drugs ruled the news last week and the most popular articles at Law Street were no exception. The #1 article of the week, from Anneliese Mahoney, detailed the suit over royalties earned by “50 Shades of Gray” won by a woman in Texas; #2, also from Mahoney, covers the explosive news out of Chicago that there is a secret ‘black site’ where Americans are held outside of the justice system; and #3, from Alexis Evans, is the story from Wesleyan University where nearly a dozen students were hospitalized in apparent Molly overdoses. ICYMI, here is the Best of the Week from Law Street.

#1 Texas Woman Wins Big “50 Shades of Grey” Royalties Lawsuit

It seems like one of the most popular topics of conversation these days is the movie version of the erotic novel sensation “Fifty Shades of Grey.” (Spoiler alert: It’s really bad. I went hoping to make fun of it and have a few laughs, and it was too awful to even laugh at.) But one woman may be laughing soon–laughing all the way to the bank, that is. An Arlington, Texas woman named Jennifer Lynn Pedroza just won a major “Fifty Shades” related lawsuit. Read full article here.

#2 Chicago “Black Site” Allegations Yet Another Example of Police Brutality

News of a secret detention facility in Chicago broke this week and it’s sparking horror and outrage across the country. This “black site,” revealed by the Guardian, is a nightmare image straight out of a post-apocalyptic movie. People are “arrested” and taken to this site, which is inside a warehouse in Chicago’s Homan Square. Then they are subjected to inhumane treatment. They aren’t afforded the rights that the U.S. Constitution promises all of us. Read full article here.

#3 Mass Molly Overdose Hospitalized 11 Wesleyan Students

Connecticut’s Wesleyan University was flooded with sirens Sunday night as almost a dozen students were rushed to hospitals after reportedly overdosing on the party drug commonly known as Molly, or MDMA. The exact number of alleged victims varies, with police reporting that 11 students were hospitalized for the drug, while Wesleyan University President Michael S. Roth reported the figure as ten students and two visitors in a letter sent to students Monday morning. Read full article here.

Chelsey D. Goff

Chelsey D. Goff was formerly Chief People Officer at Law Street. She is a Granite State Native who holds a Master of Public Policy in Urban Policy from the George Washington University. She’s passionate about social justice issues, politics — especially those in First in the Nation New Hampshire — and all things Bravo. Contact Chelsey at staff@LawStreetMedia.com.

The post ICYMI: Best of the Week appeared first on Law Street.

The podcast “Serial” took the world by storm this fall. Never had a podcast been so talked about, so obsessed over, or raised such fascinating questions about a 15-year-old murder conviction. The case involved a young man named Adnan Syed who was convicted of murdering his ex-girlfriend. Although he was convicted a decade and a half ago, Syed’s case will now be heard again in court.

For those of you who missed “Serial,” here are the CliffNotes. Don’t worry, I’ll stay away from too many spoilers. Essentially, in 1999, a Baltimore high school senior named Hae Min Lee went missing and was later found dead. After a police investigation, Syed, her ex-boyfriend who was also a high school senior, was found guilty of her murder.

Fast forward almost 15 years to present day. Journalist Sarah Koenig was approached by Syed’s friends with concerns about the way his case was handled, and all the inconsistencies in the evidence that was brought up in court. Koenig was intrigued, and started looking into the case. She ended up producing a podcast–a journalistic enterprise–exploring the facts of the case.

A Maryland court just ruled that it will hear arguments on Syed’s case, mostly based on the fact that his lawyer, Christina Guttierez, may not have done her job effectively. Syed and his lawyers are arguing that Guttierez didn’t follow up with a possible alibi witness whom Koenig spoke to in the “Serial” podcast. They also argue that Guttierez failed Syed by not exploring the possibility of a plea deal when she was given the option. Given that Guttierez has since died of a heart attack, it’s unclear why she made those choices. They could have been incompetence, like Syed’s attorneys are arguing, or they could have been a strategic move.

After a few different attempts at an appeal failed since Syed was convicted, this most recent appeal was brought to the Maryland Special Court of Appeals. It’s important to note that Syed hasn’t actually been granted an appeal–this is just a small step toward that. Basically, the Maryland Special Court of Appeals has agreed to listen to what Syed and the state have to say, and then decide whether or not to order a new trial, or send it back to the Circuit Court.

Koenig posted about the development on the “Serial” website, saying:

In Episode 10 of the podcast, I reported that this appeal was alive by a thread. Now, I’d say it’s more of a … well-made string, maybe. Like the nylon kind. Because it means that the Court of Special Appeals judges think the issues Adnan raised in his brief are worth considering. That’s a pretty big hurdle for any appellant to clear.

Whether or not Syed will actually end up getting a new trial is very uncertain at this point. That being said, it’s a case that touched a lot of people, or at the very least opened the doors to some unsettling realities of our justice system. I’m sure all “Serial” fans will be anxiously awaiting the next news in this saga.

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.

The post Subject of Serial Podcast Gets Appeal Opportunity appeared first on Law Street.

The decisions by grand juries not to indict the police officers who killed Michael Brown in Ferguson, Missouri and Eric Garner in Staten Island, New York–both unarmed black men–have sparked a visceral reaction from many Americans coast to coast. In the case of Garner, the reaction transcended partisan politics, with conservative voices such as Glenn Beck expressing disbelief at how an unarmed man being choked to death on camera was not enough to even start a criminal proceeding against his killer, Officer Daniel Pantaleo.

On the other hand, there are those who reject the idea that the system failed these victims and their families, and that these outcomes are indicative of a larger institutional design that disproportionately victimizes black people. They tend to view these cases as “isolated incidents,” unfortunate yes, but perhaps unavoidable in a society where police are confronted with violent crime on a daily basis. Inevitably, they veer into defaming the victim’s character. “It’s not like Michael Brown was an angel. Did you see the video of him robbing that store just before the shooting?” I have even heard some version of these quotes uttered by people very close to me, whose opinions I hold in high regard. Yet, here they are apologizing for murderers.

It is not difficult to see the striking parallel between this behavior and the victim-blaming that surrounds cases of rape and domestic abuse involving women. “Well she was wearing a short skirt” “Wasn’t she drunk?” “Why did she go back to him?” A system designed to protect men at the expense of women will scrutinize the woman’s actions to see what she did to bring such misfortune upon herself, rather than investigating the criminal actions of the male perpetrator. This, in turn, engenders a deep distrust of the system among women and explains why a majority of sexual assaults go unreported.

Similarly, a system designed to protect white lives at the expense of black lives makes it acceptable to blame the black victim of a senseless murder. Whether 18–year-old Brown or 43-year-old Garner were “angels” before their lives were cut short bears no relevance on whether their killers should be held accountable for their untimely deaths. Those who feel these are appropriate counterarguments to an issue that’s been blown out of proportion by the media are products of this system and these are misplaced attempts at appearing “fair and balanced.” That Officers Wilson and Pantaleo may never face a public trial for their actions means that the system worked as it was designed. Unfortunately, this also means that the distrust of law enforcement in black communities was only compounded. Obama’s call for $263 million for body cameras on police may increase transparency, but trust will elude us until we can seek justice in a system untainted by vestiges of the racial caste system that this country was built on.

Kesav Wable

Kesav Wable is an attorney practicing in New York, as well as an accomplished actor and writer. His short film For Flow, an HBO American Black Film Finalist in 2011, was broadcast on HBO/Cinemax, and he continues to develop scripts for the stage and screen. Contact Kesav at staff@LawStreetMedia.com.

The post How Victim Blaming Nurtures an Unjust System appeared first on Law Street.

Quietly nestled on Alabama’s ballot on Election Day at the top of a list of proposed amendments was Amendment Number One, a measure that would ban the application of “foreign law” in Alabama when it would violate the rights of the state’s citizens. The measure overwhelmingly passed, and at the surface seems like a legitimate amendment. Voters may have glazed over it because the wording seems benign:

Proposing an amendment to the Constitution of Alabama of 1901, to prohibit the State of Alabama from giving full faith and credit to public acts, records, or judicial proceedings of another state that violate the public policy of the State of Alabama and to prohibit the application of foreign law in violation of rights guaranteed natural citizens by the United States and Alabama Constitutions, and the statutes, laws, and public policy thereof, but without application to business entities. (Proposed by Act No. 2013-269)

No one wants any laws to violate Alabamans’ rights, right? That is all the amendment appears to ensure, but in context, it may have some unintended consequences. Foreign law often does need to be interpreted in U.S. courts. There are private disputes relating to foreign or religious law that often need to be settled in the U.S. and there are cases that are litigated in Alabama but are governed by the law of another jurisdiction, Vox notes. Marriages and adoptions that occurred outside the country but came to Alabama are a good example.

All this falls under “choice of law,” the notion that courts have to reconcile the differences between the relevant laws between two jurisdictions if a case involves them. Since this is so common, Alabama’s Amendment One could be redundant or problematic, depending on how courts interpret it.

So why was this amendment on the ballot in the first place if it’s so questionable? The amendment appears to a revision of one that didn’t make it onto the ballot in 2012. That amendment, introduced by Alabama State Senator Gerald Allen, was known as the Sharia Law Amendment, specifically targeting Islamic law in an effort to prohibit its use in judicial decisions. A similar measure in Oklahoma was struck down by an appeals court on the grounds that it was unconstitutional.

After his first measure failed, Allen reintroduced the measure without any explicit reference to Sharia law, though the media is still talking about it as if it is the Sharia Law amendment. The amendment that Alabama voters actually passed on Tuesday is about all foreign law.

But let’s talk about Sharia law. What is it? Is it foreign? Does it pose a threat to the United States judicial process? Simply put, Sharia law is a set of rules aggregated from the Quran, the Islamic holy book, and the hadith, the teachings of the Islamic prophet Muhammad. While it does come from sacred sources, there is no single codification of Sharia law, leaving the interpretation of what is or isn’t Sharia law up in the air, and usually in various courts’ hands. Different Muslim-majority countries apply it in different ways. Generally, it encompasses everything from finance to marriage to prayer. Theoretically, there are instances where Sharia law and U.S. law coincide (for instance, murder is prohibited under both). So you can see why blanket bans on Sharia law are laughable, and why the ACLU denounced the idea that “anything Islamic is un-American.”

In fact, to say that anything Islamic is automatically un-American may be un-American itself. After all, so much of this nation’s history is inextricably linked to religious freedom. You probably didn’t learn this in your eighth grade civics class, but Thomas Jefferson owned a Quran. Yes, Thomas Jefferson, founding father, author of the Declaration of Independence, and third U.S. president. A 2013 book by Denise A. Spellberg details Jefferson’s role as an advocate to allow Muslims and all religious groups the ability to hold citizenship and public office.

Whether or not Amendment One was an attempt to bring back the Sharia Law Amendment, maybe only the Alabama lawmakers who approved it know. But one thing remains clear. The United States is not a legal island. It is influenced by foreign and religious law and it’s often necessary to use those laws for the country to carry on its judicial process.

Zaid Shoorbajee

Zaid Shoorbajee is a an undergraduate student at The George Washington University majoring in journalism and economics. He is from the Washington, D.C. area and likes reading and writing about international affairs, politics, business and technology (especially when they intersect). Contact Zaid at staff@LawStreetMedia.com.

The post Alabama’s Amendment One: An Attempt at Banning Sharia Law? appeared first on Law Street.

It’s a cliché that’s been played out on every crime procedural on TV: a rich young man, maybe the son of a wealthy family, or maybe a self-made millionaire, commits a horrible crime. And it’s covered up. His family and the people who work for him support him. Sometimes the cops can make a dent and sometimes they can’t. Sometimes they succeed but the courts don’t buy it. I swear, I’ve seen this on every crime show I’ve ever watched — Law & Order: SVU, Bones, Criminal Minds, you name it. And I think the reason that it’s such a powerful theme is because it’s frightening. It’s scary to imagine that there are still people in this country whose money and influence can get them out of the justice system.

And what’s even scarier than imagining such a scenario? When it becomes reality.. There have been not one, but two breaking stories this week that have sent shivers up my spine.

1. Gurbaksh Chahal

The first is the case of Gurbaksh Chahal. He is a self-made multimillionaire who has sold a number of internet startups for quite a pretty penny. At only 31, he has been named America’s most eligible bachelor, released an autobiography, regularly makes inspirational and motivational speeches, and has been interviewed by Oprah Winfrey. Up until a few days ago he was the CEO of RadiumOne, an advertising firm.

He also severely beat his then-girlfriend last summer.

And there’s video evidence of that. A 30-minute recording shows Chahal kicking and hitting his girlfriend 117 times and then trying to smother her. She couldn’t breathe for almost 20 seconds. He told her four times that he was going to kill her. And as a result for his heinous crimes, he faced 45 felony counts. But because a judge ruled the video inadmissible and the ex-girlfriend didn’t end up testifying, he only pled guilty to one battery and one domestic violence battery charge.

So the man who hit his girlfriend over 100 times got 25 hours of community service and three years of probation. Oh, and he has to take a class on not being a shitty person. That’s it.

In some tiny bit of karmic retribution, Chahal has been dismissed from his position as RadiumOne CEO. So, naturally, Chahal thought what was appropriate was to publish a gigantic, inappropriate, and frankly delusional self defense. He now claims that he didn’t hit or injure her, just lost his temper after discovering she was working as a prostitute. He claims that he was the victim of a witch-hunt, the police were after him, and that the video was “bullshit.” And that totally makes sense, right? Because the police have the resources and wherewithal to fabricate a half-hour domestic abuse video for no apparent reason.

So here’s my issue. The man lost almost nothing. Fine, he lost his job, but he clearly didn’t really need that job in the first place. He has plenty of money, probably enough to invest it and make enough to live on for the rest of his life. He has a few years of probation, and a measly 25 hours of community service, but at the end of the day his life isn’t going to change in any real way. Am I saying that the judge should have kept the video in even if he genuinely found it inadmissible? No, definitely not. But for god’s sake, this man can take another woman up to his gorgeous San Francisco penthouse and beat the crap out of her if he wants. Because there’s nothing really stopping him — obviously a fear of breaking the law isn’t going to be enough. And that’s downright terrifying.

2. Jared Remy

So now let’s move across the country to Massachusetts where something equally horrifying is happening. Jerry Remy is pretty much a household name in Red Sox country. He is a former Sox player who’s in the Red Sox Hall of Fame and now works as a broadcaster for the team. But his son, Jared Remy, is pretty much a psycho.

Jared Remy has been the subject of approximately twenty different criminal cases. His charges ranged from elbowing and attacking a police officer to hitting a friend over the head with a glass beer bottle. But for the most part, the cases involve terrorizing and abusing women. He got off essentially scott free. He has been found guilty only twice, and in each of those cases he received a suspended sentence. He has been on plenty of temporary probations, and instead of going to jail for his crimes he was ordered to do things like go home and live with his parents. It’s clear his parents can’t control him, although they’re more than happy to support their son, who is utterly incapable of holding down a job or even trying to do so.

Now he’s accused of murdering his former girlfriend, Jennifer Martel. He’ll go on trial October 7, and honestly, who knows what will happen. The Boston Globe wrote an excellent exposé on Remy about a month ago that categorically goes through every single abject failure of the justice system that put Remy back on the streets to hurt more women time and time again. Finally, with that piece and some other local Boston websites, the story has begun to break regional news, although I’ve seen almost no non-New England outlets pick it up. Maybe the turn of public opinion will make this charge stick. Maybe. Or maybe Remy will be allowed to walk away with a slap on the wrist again.

So what do we have here? Two men. Both extraordinarily wealthy, though through admittedly different means — Chahal was self-made and Remy appears to never have made anything useful in his life. Both seemingly guilty of horrific domestic abuse. And both allowed to walk free. With Chahal it was just once, with Remy it was dozens of times, but in both cases the justice system failed to do its job. It failed to protect the women in these mens’ lives. The crimes they committed aren’t the scary part. It’s the way that they got away with it that makes me feel like I’m sitting in front of my TV watching one of those ubiquitous TV procedurals.

Because hell, that’s much better than accepting that our justice system is allowing Chahal and Remy to get away with what they did.

—

Anneliese Mahoney (@AMahoney8672) is Lead 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.

Featured image courtesy of [Hilary Dotson via Flickr]

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.

The post Rich Men, Violent Crimes, No Justice appeared first on Law Street.

Let us examine a scenario; parents go to a hospital to treat their child’s cancer and after seeing the debilitating effects of chemotherapy, opt to end the treatment. The hospital, however, sees the child’s cancer as curable and uses the court system to attempt to force their patient to continue treatment. Which party has the law on their side, the parents of the child or the hospital?

This seemingly hypothetical situation has become a real debate between an Amish couple in Ohio and the Akron Children’s Hospital. Parents, Andy and Anna Hershberger, have decided to stop the chemotherapy treatments of their 10 year old daughter, Sarah, who is battling Leukemia. The couple originally consented to the chemotherapy of Sarah in May 2013 but put an end to the treatment in June 2013. The parents saw the effects of the treatment as more harmful than helpful and opted to use natural herbs and vitamins rather than radiation to rid the girl’s body of the cancer.

While it is the belief of Mr. and Mrs. Hershberger that chemotherapy was actually killing their daughter, it is the moral and legal obligation of the hospital to make sure that the young girl received proper care. As explained by Robert McGregor, Akron’s chief medical officer, the hospital believes that the girl will die without the chemotherapy treatment. “We really have to advocate for what we believe is in the best interest of the child,” explained McGregor.

This is where the law stepped in, as the hospital went to court in order to force Sarah’s continued chemotherapy treatment. Judges appointed an unaffiliated third party, or “court guardian” to the case, Maria Schimer who is an attorney as well as registered nurse. Along with guardianship came Maria’s power to make all medical decisions regarding Sarah’s continued treatment. With this decision, the Amish family went into hiding about four months ago and has refused to reappear until the guardian is removed. Maria Schimer recently requested to be dropped from this case as she can no longer reach Sarah and her family.

The Hershbergers are currently fighting to obtain the right to make health care decisions for Sarah after the legal guardian is formally removed from the case. These parents are appealing the decision that allowed Maria Schimer to step in and make medical decisions for their daughter in the first place. The couple feels that assigning this guardian has infringed upon their constitutional rights and are appealing under the Ohio Health Care Freedom Amendment, approved in 2011. This amendment prohibits laws that force Ohioans to, “participate in a health care system.” This appeal is the first time that the court has been forced to determine the scope of this amendment, which has previously been seen as a symbol against President Obama’s health care overhaul.

The representing attorney to the Hershberger’s, Maurice Thompson of the libertarian 1851 Center for Constitutional Law in Ohio also helped draft the Ohio Health Care Freedom Amendment. Thompson feels that this case is a significant issue under said amendment because the Ohio Health Care Freedom Amendment is in place to preserve the rights of parents and children to choose their health care free of compulsion and prevent forced health care. “Allowing an uninterested third-party, one that has never even met the family or the child, to assert an interest in an exceedingly important parental decision will completely undermine the parent-child relationship,” argues Thompson.

Though the case of the Hershberger family has not yet been decided, it is most likely going to face multiple challenges. This stems from the fact that though the Ohio Health Care Freedom Ammendment was approved, it did not prevent the implementation of the Obama’s new federal health care law. This is because a state amendment does not have the ability to nullify a law. This situation could harm Ohio’s ability to enforce its specific laws and amendments to a case such as this. It is also questionable as to whether this amendment can extend to the point of protecting the Hershberger family’s case, which will be up to the court system as they decide on the full scope of the amendment.

The bigger picture of this case becomes, is it the right of the parents or the right of the hospital to determine the medical future of a child? While the Akron Hospital, versus the Hershberger family case is one of the most recent, there are other similar situations in which parents have lost the custody of their ill children to decisions made by the hospitals treating them. Fifteen year old Justina Pelletier was taken from her parents and placed into the custody of Boston Children’s Hospital in February 2013. This event occurred due to a dispute between Justina’s parents and the hospital, when her diagnosis changed from a mitochondrial disorder to a mental illness. After the change in diagnosis, the Pelletier family threatened to withdraw their daughter from the hospital in order to seek a second medical opinion. Once a child is labeled with a mental disorder, it is within the hospital’s power to call child protective services. In this case DCF labeled the parents behavior as insolent and abusive. The parents were stripped of their custody and the state of Massachusetts forcibly been treating as well as detaining Justina since that time. Based on the current ruling, it looks as if Justina will not be fully released until she is 18 years old.These two extreme cases can seem terrifying in the eyes of parents, and rightfully so. It seems that the hospitals often have the final say in the treatment of child patients rather than the parents.

While both sides of this scenario, the hospitals and the parents, seem to be looking to protect the child’s best interests, it becomes hard to draw a line between who is correct in their judgements. If parents are fully informed about treatment options as well as their risks and decide that the risks do outweigh the benefits, it should be within their ability to opt out of treatment as the child’s legal guardians from birth. However, this becomes complicated with the consideration of some parental religious beliefs that could bar the child from receiving potentially life saving treatment. On one hand, due to custody under the hospital or a third party guardian, a life can be saved, but on the other religious beliefs may be compromised. This medical debate does not have an all encompassing answer.

At what point, does it become ok to take over the custody of a child without the consent of their parents, or is it ever ok? To each his own, what is your opinion?

[The News- Herald] [Fox News] [Police State USA]

—

Taylor Garre (@TaylorLynn013)

Featured image courtesy of [Randall Pugh via Flickr]

Taylor Garre

Taylor Garre is a student at Fordham University and formerly an intern at Law Street Media. Contact Taylor at staff@LawStreetMedia.com.

The post Parents vs Hospitals: is Forced Treatment Legal? appeared first on Law Street.