jlieditors, Author at Minnesota Journal of Law & Inequality

Examining the Constitutionality of Targeted Residential Protest Bans

By jlieditors

By Alexandra Schrader-Dobris

Introduction:

Minnesota cities are steadily banning targeted residential protests in response to several Black Lives Matter demonstrations following George Floyd’s death in 2020.^[1] That summer, over one hundred Black Lives Matter (BLM) protesters picketed outside Minneapolis Police Union President Bob Kroll’s house, calling for his resignation as a result of his failure to prevent Floyd’s death.^[2] In response, St. Louis Park amended its residential protesting ban to include multifamily housing as a prohibited protesting space.^[3] Originally, the ban only protected single-family housing.^[4] On February 4, 2021, Republican Representative Pat Garofalo introduced bill HF 771 to the House, which would impose a statewide ban.^[5] The bill defines the act of residential protesting as “A person who protests before or about the residence or dwelling of any person, except when the residence or dwelling is used as a place of business.” ^[6] Violating this act would result in a misdemeanor or gross misdemeanor conviction.^[7] First Amendment implications and residential privacy and safety concerns arise from these protest ordinances.

Targeted Residential Protests–SCOTUS and Eighth Circuit Rulings:

In Frisby v. Schultz, the 1988 Supreme Court held that a categorical ban on residential protesting was facially constitutional under the First Amendment.^[8] The Court held that ordinances banning this type of protesting are subject to the time, place, and manner test: the restriction must be “content-neutral…narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.”^[9] The ordinance is not viewpoint neutral if the “government has adopted a regulation of speech because of disagreement with the message it conveys.”^[10] The Court’s goal was to protect residential privacy but allowed “General marching through residential neighborhoods, or even walking a route in front of an entire block of houses.”^[11] Applying the Schultz test, the eighth circuit held in Veneklase v. City of Fargo that a residential protest ban did not violate the First Amendment.^[12] In 2001 the Veneklase court analyzed the ordinance’s language, finding that the phrase ‘“No person shall engage in picketing the dwelling of any individual’” regulates nothing other than the particular location of where one may picket.”^[13] Thus, the Court held that the ordinance did not restrict free speech.^[14] Furthermore, the ordinance “[did] not speak to which types of picketing are prohibited. Rather, it ban[ned] all picketing…[and] the City’s interest of protecting the privacy of the home is unrelated to the content of the plaintiffs’ speech.”^[15] As long as the statutes do not discriminate against the type of speech produced, the eighth circuit prioritizes preserving the “sanctity of the home.”^[16]

The First Amendment and Black Lives Matter Protests:

Although targeted residential protest ordinances are only Constitutional if they are content-neutral, the ordinances disproportionately impact BLM protests.^[17] The resurgence of residential protest bans in many states, including in Minnesota, occurred in response to BLM. Drafters of the legislation wanted to curb potential violence emanating from the protests, however, nationwide 93% of all BLM protests have been peaceful.^[18] Given the peaceful nature of these demonstrations, it seems unlikely that residential harassment is as severe a concern as some legislators fear within this context.^[19]

The First Amendment and Abortion Protests:

Before the BLM protests, targeted residential protest ordinances emerged from anti-abortion demonstrations. The Supreme Court in Madsen v. Women’s Health Center, Inc. (1994) held that an injunction barring residential picketing within 300 feet of clinic employees’ homes was overly broad and therefore unconstitutional.^[20] In this instance, the Court declined to apply Frisby because injunctions entail a more extensive censorship risk.^[21] Instead the Court asked, “whether the challenged provisions of the injunction burden no more speech than is necessary to serve a significant government interest.”^[22] When weighing the balance between safety concerns and First Amendment rights, the Court held that the proximate area around the home is appropriate grounds for picketing.^[23]

The First Amendment and Labor Rights Protests:

Carey v. Brown represents another landmark residential protesting case. In 1980 the Supreme Court struck down a residential protesting ban which exempted labor picketing.^[24] The ordinance was a content-based regulation and not narrowly tailored to a substantial government interest.^[25] The Court’s holding focused on an equal protection argument, however, Justice Stewart’s concurrence expressed that the impermissibility of content based speech discrimination was also a First Amendment violation.^[26] This case reduced residential privacy in favor of freedom of expression.

Legal Scholar’s Legislation Recommendations:

To preserve First Amendment Rights while reducing harassment, some legal scholars suggest restricting picketing to the “site of the dispute.”^[27] Additionally, other scholars note that this area of the law is highly subjective, and therefore, each ordinance must be evaluated using fact-specific analysis.^[28] Throughout the drafting process, legal decision makers ought to ensure that residential protest bans will not limit expressive activity in public places.^[29] When undergoing that analysis, “a particular group’s past violent or disruptive conduct should be carefully documented…”^[30] Thus, if a protesting group had a history of non-peaceful demonstrations, then it would be reasonable to infer that residential protesting might escalate toward violence.

Conclusion:

As more cities in Minneapolis restrict residential protesting and Minnesota moves toward a statewide ban, legal scholars should consider the growing First Amendment and safety concerns. Protesters may increasingly criticize these ordinances with frustration if they view their rights are being impeded. The frustration could lead to greater displays of civil unrest, endangering the public. More research should be done to determine the impact of distance and location on protests. If studies find that neighborhood picketing carries no greater impact on legislative change than picketing directly in front of someone’s home, perhaps legislators should more firmly define the parameters of residential protesting. Thorough research could serve as a starting point to evaluate the pressing First Amendment and safety concerns.

Alexandra Schrader-Dobris is a Staff Member for Volume 41 of the Minnesota Journal of Law & Inequality

[1] Kim Hyatt, St. Louis Park amends targeted residential protest ban, Startribune, (Mar. 16, 2021), https://www.startribune.com/st-louis-park-amends-targeted-residential-protest-ban/600034980/.

[2] Id.

[3] Id.

[4] Id.

[5] Megan Olson, Bill in Minnesota House seeks to ban protests outside people’s homes, ALPHANEWS, (Feb. 22, 2022), https://alphanews.org/bill-in-minnesota-house-seeks-to-ban-protests-outside-peoples-homes/.

[6] Residential Protesting, H.R. 771, 93rd Cong. § 256B.0625 (2023).

[7] Id.

[8] Frisby v. Schultz, 487 U.S. 474, 108 S. Ct. 2495, 488 (1988).

[9] Id. at 481. (citing Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 103 S. Ct. 948, 45 (1983)).

[10] Ward v. Rock Against Racism, 491 U.S. 781, 109 S. Ct. 2746, 791 (1989).

[11] Frisby v. Schultz, 487 U.S. 483.

[12] Veneklase v. City of Fargo, 248 F.3d 738, 749.

[13] Veneklase v. City of Fargo, 248 F.3d 738, 744 –745 (8th Cir. 2001).

[14] Frisby v. Schultz, 487 U.S. 488.

[15] Id. at 745.

[16] Ken Gormley, One Hundred Years of Privacy, 1992 Wis. L. REV. 1335, 1384 (1992).

[17] Bob Shaw, Suburbs such as Lake Elmo look to strike back against protests targeting homes, Pioneer Press, (Nov. 11, 2020), https://www.twincities.com/2020/11/11/suburbs-such-as-lake-elmo-look-to-strike-back-against-protests-targeting-homes/.

[18] Roudabeh Kishi & Sam Jones, Demonstrations and Political Violence in America: New Data for Summer 2020, ACLED, (Sept. 3, 2020), (https://acleddata.com/2020/09/03/demonstrations-political-violence-in-america-new-data-for-summer-2020/).

[19] Shaw, supra note 17.

[20] Madsen v. Women’s Health Ctr., 512 U.S. 753, 114 S. Ct. 2516, 8 (1994).

[21] Id. at 4.

[22] Id. at 24.

[23] Id. at 8.

[24] Carey v. Brown, 447 U.S. 455, 465 (1980).

[25] Carey v. Brown, 447 U.S. 455, 457.

[26] Carey v. Brown, 447 U.S. 455, 472.

[27] Sylvia Arizmendi, Residential Picketing: Will the Public Forum Follow Us Home? 37 How. L.J. 495, 554 (1994).

[28] Daniel L. Schofield, Controlling Public Protest: First Amendment Implications, 63 FBI

ENFORCEMENT BULL. 25, 31 (1994).

[29] Id. at 25.

[30] Id. at 31.

A New Future for Social Media Platforms, Courtesy of State Legislators.

By jlieditors

By: Anitra Varhadkar

On March 23, 2023, Utah Governor Spencer Cox signed the Social Media Regulation Act (H.B. 311 and S.B. 152) (“the Bill”), arguably one of the most aggressive bills targeted at limiting the social media usage of children under the age of 18.^[1] The Bill, which is one of the first in the nation, leaves the fate of children’s social media use entirely to their parents or legal guardians.^[2]

The Utah Bill, Decoded.

Though the Bill is filled with stringent new requirements aimed at building a safer online experience for minors, some seem to stick out more than others. Spanning an extensive 40 lines of the Bill, Utah legislators require all account holders to go through an extensive age verification process, and anyone under the age of 18 will now need the “express consent of a parent or guardian” to create their accounts.^[3] And while parental consent is nothing new, the Bill takes this one step further by allowing parents access to the private messages of their children’s account.^[4]

In addition to requirements for account holders, social media companies^[5] have a host of requirements to abide by, including: (1) strict restrictions on the advertising (their main source of revenue) minor accounts are exposed to and (2) creating a default setting to “block minors from accessing their accounts from 10:30 pm to 6:30 am,” which can only be reversed by parents.^[6]Enforcement is punitive as well, with social media companies subject to both private actions and an administrative fine of $2,500 per violation.[7]

The Utah Legislature consistently cites the youth mental health crisis as a driving force of the Bill, noting that social media has only amplified this crisis in recent years.^[8] Opponents, however, raise a fundamentally different argument. Though all parties acknowledge that youth mental health measures are necessary, opponents argue that the Bill’s tactics are far from congruent to the stated purpose.^[9] Influential to their opposition was the “California Age-Appropriate Design Code,” which pioneered a movement to ensure safe media platforms for children.^[10] The legislation, to be deployed in 2024, will require social media platforms to create heightened privacy features for minors that cannot be easily turned off.^[11] Utah, on the other hand, is seemingly attempting to both mitigate the potential negative effects of social media and entirely prevent kids, especially teenagers, from accessing social media—potentially a source of grave consequences for Utah minors.^[12]

Psychologists have reported the detrimental mental health effects of social media on young women especially for decades, with social scientists concluding that social media is exponentially increasing the likelihood of body dysmorphia for young girls.^[13] And yet, over 15 years since the first study was released, Utah’s legislature is only now taking such drastic measures. The timing is almost picturesque, with the Bill arriving in the midst of Congressional hearings regarding TikTok’s “national security risk” and only months after the actions taken by Governor DeSantis in Florida on academic censorship.^[14] This slippery trajectory unfortunately begs the question— is this where censorship in the United States is heading?

(Un)Intended Consequences?

It is no secret that social media, despites all of its woes, has been tremendously useful as a catalyst for social movements and as an information source for much of the world.^[15] Domestically, we have seen millions rally on platforms such as TikTok and Instagram—whether for racial justice in 2020 after the murder of George Floyd, or for reproductive justice following the fall of Roe v. Wade.^[16] On an international scale too the power of social media has been revolutionary, with movements like “Women, Life, Freedom” from Iran gaining incredible traction on social media platforms.^[17] In Iran specifically, platforms have both educated the globe on the daily injustices Iranian women face, as well as undeniably given a voice to those on the ground.^[18]

While the premise of Utah minors being cut off from information sources on social media is jarring, it is when this measure is put in the context of surrounding legislative action that it becomes truly bone-chilling. In Florida, Governor DeSantis’ has taken sweeping actions to censor public education through his now infamously coined “Don’t Say Gay” and “Stop W.O.K.E. Act.”^[19] By way of background, his policies have created a parent-friendly system, where parents, rather than licensed educators, would be influential in deciding what topics are covered in school curriculum and what books the library is “allowed” to carry.^[20] Prohibited topics include critical race theory and gender/sexual orientation education, while stringent limits are put on how race in the United States is taught.^[21]

However, the students in Florida still have access to their social media, seemingly allowing them to be exposed to educational tools and informational videos that inform them of these so-called “prohibited topics.” The importance of social media here can be readily seen with LGBTQ+ minors, who have been outspoken about finding and connecting with community members through their accounts—often a source of life-saving support, education, and resources.^[22] If, however, Florida imposed a similar bill to that of Utah, all of these resources, whether it be for education, support, or otherwise, will: (1) only be available if parents/guardians allow access and (2) be far from private, as parents have access to account messaging and posts.^[23]

Whether the intention of the Utah legislature was censorship or not can remain up for debate, but the consequences of their actions cannot. As other states begin to follow suit, only time will tell just how negative an impact these bills will have on the future generations.^[24]

[1] S.B. 152, 2023 Leg., 498 Sess. (Utah 2023) [hereinafter “Utah Act”].

[2] Natasha Singer, Utah Law Could Curb Use of TikTok and Instagram by Children and Teens, N.Y. TIMES (Mar. 23, 2023).

[3] Utah Act, supra note 1, at 239-305.

[4] Id. at 302-05.

[5] In the Act, a “social media company” is defined as “a person or entity that: (a) provides a social media platform that has at least 5,000,000 account holders worldwide; and (b) is an interactive computer service.” Utah Act, supra note 1, at 310-11.

[6] Utah Act, supra note 1, at 310-11.

[7] Utah Act, supra note 1, at 341.

[8] Nicholas Reimann, Utah Bans Teens Under 18 From Social Media Without Parental Consent, FORBES (Mar. 23, 2023) https://www.forbes.com/sites/nicholasreimann/2023/03/23/utah-bans-teens-under-18-from-social-media-without-parental-consent/?sh=7b56295179d3.

[9] Id. (“But the Utah law far outstrips the California online safety effort, imposing broad constraints and enabling parental surveillance that could alter how many teenagers in Utah use the internet.”).

[10] AB 2273 “Age-Appropriate Design Code” (Nov. 18, 2022), https://californiaaadc.com/.

[11] Natahsa Singer, Tech Trade Group Sues California to Halt Children’s Online Safety Law, N.Y. TIMES (Dec. 14, 2022).

[12] See generally Utah Act, supra note 1.

[13] See Richard Strauss & Harold Pollack, Social Marginalization of Overweight Children, Arch Pediatric Adolescent Medical (2003). https://jamanetwork.com/journals/jamapediatrics/article-abstract/481398

[14] Sapna Maheshwari, What to Know About Today’s Congressional Hearing on TikTok, N.Y. TIMES (Mar. 23, 2023) https://www.nytimes.com/2023/03/23/technology/tiktok-congress-hearing.html

[15] Belle Liang, Using Social Media to Engage Youth: Education, Social Justice, & Humanitarianism, 17 THE PREVENTION RESEARCHER (2010).

[16] Tyler T. Reny, The Opinion-Mobilizing Effect of Social Protest Against Police Violence: Evidence from the 2020 George Floyd Protests, 115 AM. POL. SCI. REV. 1499 (Jun. 08, 2021) (“several of the attributes of the Floyd protests that make it unique (e.g., scale and media coverage) also arguably render it more likely than other episodes of protest to exert the broad effect on public opinion”).

[17] Marie Lamensch, In Iran, Women Deploy Social Media in the Fight for Rights, CTR. FOR INT’L GOV. INNOVATION (Nov. 16, 2022) https://www.cigionline.org/articles/in-iran-women-deploy-social-media-in-the-fight-for-rights/

[18] Id.

[19] Katie Reilly, Florida’s Governor Just Signed the ‘Stop Woke Act.’ Here’s What it Means for Schools and Businesses, TIME (Apr. 22, 2022) https://time.com/6168753/florida-stop-woke-law/

[20] Id.

[21]Sarah Mervosh & Dana Goldstein, Florida Rejects Dozens of Social Studies Textbooks, and Forces Changes in Others, (May 09, 2023) https://www.nytimes.com/2023/05/09/us/desantis-florida-social-studies-textbooks.html

[22] Natasha Singer, Utah Law Could Curb Use of TikTok and Instagram by Children and Teens, N.Y. TIMES (Mar. 23, 2023) https://www.nytimes.com/2023/03/23/technology/utah-social-media-law-tiktok-instagram.html

[23] Id.

[24] Similar laws can be found in Connecticut H.B. 5025 and Ohio’s “Social Media Notification Act.”

CALLING ALL ASYLUM SEEKERS: PLEASE, TELL US YOUR TRAUMA, OVER AND OVER AGAIN

By jlieditors

A Look into the United States Asylum Process for Recent Afghan Evacuees

By Coryn Johnson*

I met the girl with the quiet not-quite-smile in a small building on a military base.[1] Laminate tiles in a dirty-off white made the flooring, coupled by white-paned windows framing cheap glass. The place resembled a one-room schoolhouse built in the 1970s. Did they still build one-room schoolhouses in those days? Desks scattered the room, paired with chairs a bit large for children but too small for most adults to sit in comfortably for any extended period. The calendar read late January, 2022. It was sunny but far below freezing. Light gleamed in through the poorly insulated windows. Still, the many people moving in and out kept the heat packed in tight enough. Most of the visitors[2] carried stacks of paperwork: identification cards, passports if they were lucky,[3] proof of employment with the U.S. government,[4] enrollment in university.[5] Volunteers filled out form after form with names of applicants, present location, the identities of dead family members—a plea for asylum[6] in the United States folded neatly into a document[7] that asks you to check a box if the applicant fears torture[8] upon return to their home country. I checked the box each time.[9]

She sat across from me at one of the tables. Her head donned a simple blue scarf, loosely exposing her dark hair, crisp middle part. I’m not sure of her age. Maybe twenty? Young. Blank applications and referral paperwork scattered the space between us. Her application had been filled out months ago, and the two of us sat chatting in those closing afternoon hours. Her English was good, still, she wanted to learn more, to improve. She’d been working as a volunteer translator for the others like herself, the tens of thousands of Afghan nationals that our government had screwed over, who we’d begged for help and then left stranded in the flooded[10] airport gates of Kabul in August of ’21. I saw the footage[11] of people hurling themselves into planes, pleading for a stamped escape.[12] The few who made it out were largely transported from Kabul to Qatar to Germany and now here: Fort McCoy, middle-of-nowhere, Wisconsin-town, U.S.A.

She asked me about different verbs in English:

Putting your name on paper? // That’s called signing your name, providing your signature. Someone will ask you: sign here.

And when you mail these papers to the authorities,[13] what would you call that? // Submitting your application, applying for asylum, something like that.[14]

And, when someone points a gun at you and they pull the trigger? What is that? I noted the sharp upper-right corner of the paper before me, pulled my gaze down to the listed names of pro bono attorneys in El Paso.[15] I questioned whether to reveal the shock on my face, most certain I already had. Her not-quite-smile remained. To shoot. I said. Or, if someone shoots you, you would say you’ve been shot or you were shot. Shot is the past tense verb. I flipped the sheet over. No more attorneys.[16] Also, receiving a vaccination[1 7] in the arm would be called getting a shot. Thinking back now, it’s interesting that one form kills you while the other saves you. I wonder how that came to be.

She wrote the word down, completing her tidy little list: sign, submit, shoot.

She also described this feeling of deep sadness, of seeing people you love die, of knowing that everyone around you has seen those same things. It always hurts, but you somehow begin to feel it less. The bad things, over and over, and it’s not the bad things themselves, but the feeling that stays. I’m certain the shock painted my face red this time around. I thought back to my own brief stints at attempting to learn French, to the words I had asked for: To buy? // Acheter. Or to look for? // Chercher. My French was always far worse than the English she spoke with me from across the table. And yet, no matter how fluent I could possibly become, I would never think to ask for the words she sought so intently. Trauma, I told her.[18] Trauma, she repeated, nodding. I spelled the word out loud. She added each letter one by one, seemingly no different from the others on her list.

Imagine her position: The story begins with eating breakfast in your family’s kitchen. It’s there you first hear the shots fired. Later, you’re in the small airport room—a closet really—all white walls and a stranger asking about the bread you ate that morning. You’re then on a crowded military base, seated across from an American who will only know you for those slim few hours. Months pass and you’re in your attorney’s office—if you’re lucky[19]—describing again the bread, the jam, the gunshots. Later, in the car with your sister, asking if she remembers things just as you do. Again, in your attorney’s office. Again. Again. Months and months later, before the immigration judge. Bread, jam, gunshots. It’s the same during each retelling. Each time you’re back in the kitchen and the shots fire, sometimes softer, sometimes just as loudly. You forget what jam tasted like back home.

Of course, this is gross simplification. This is imagination, projection. Please remember that.[20] Still, this is what anyone seeking asylum is asked to do: tell us your trauma, over and over again, let us decide if it’s enough,[21] we who have never experienced the half of it.

[1] Following the end of the 2001-2021 war in Afghanistan, large-scale evacuations of Americans, foreign citizens, and Afghan citizens commenced amid the withdrawal of NATO and U.S. forces. Katie Rogers, U.S. Acknowledges Afghanistan Evacuation Should Have Started Sooner, The New York Times, https://www.nytimes.com/2023/04/06/us/politics/evacuations-afghanistan-war-biden.html (Apr. 6, 2023). On August 15, 2021, the NATO-backed Islamic Republic of Afghanistan collapsed and the Taliban seized control of Kabul. Id. The fall of Kabul occurred much sooner than allegedly projected, and the evacuation operations constituted one of the largest airlifts in history. Ellie Kaufman et. al, Pentagon activates US airlines to assist with evacuation efforts from Afghanistan, CNN, https://www.cnn.com/2021/08/22/politics/pentagon-us-airlines-american-delta-united-afghanistan-evacuation/index.html (Aug. 22, 2022). By August 30, 2021, over 122,000 were airlifted from Hamid Karzai International Airport. David Vergun, Force Protection Measures at Kabul Airport Thwart Attacks, General Says, DOD News, Department of Defense, https://www.defense.gov/News/News-Stories/Article/Article/2756863/force-protection-measures-at-kabul-airport-thwart-attacks-general-says/ (Aug. 30, 2021).

[2] Most of the Afghan nationals housed at Fort McCoy had never been to the United States. However, many had previously worked with the U.S. government, marking them as eligible for Special Immigrant Visas. See supra text accompanying note 5. Outside this group, those remaining had little to show in terms of tangible ties to the United States—drastically narrowing their options for long-term stay within the country. Other than the few lottery systems (for example, under INA § 203(c); 8 U.S.C. § 1153(c), in 2024 the United States will allow for the issuance of 55,000 “Diversity Visas” to nationals from “adversely affected” countries through a random lottery system; see Instructions for the 2024 Diversity Immigrant Visa Program, U.S. Department of State, https://travel.state.gov/content/dam/visas/Diversity-Visa/DV-Instructions-Translations/DV-2024-Instructions-Translations/DV-2024-Instructions.pdf (last visited Apr. 8, 2023)), refugee or asylum status constitute the only legitimate avenues for immigrating to the United States for individuals without family ties, employment opportunities, or means to economically invest in the United States. See David Weissbrodt, Laura Danielson, & Howard S. Meyers III, Immigration Law and Procedure in a Nutshell 383 (West Academic, 7th ed. 2017).

[3] Afghanistan currently has the world’s weakest passport under the Henley Passport Index, based on poor diplomatic ties with most foreign states following the Taliban’s resumption of power. https://www.henleyglobal.com/passport-index/ranking. Even so, the Taliban has earned tens of millions of dollars in revenue from the sale of passports, as hundreds of thousands of Afghans attempt to leave the country. https://discover.passportindex.org/reports/why-afghanistan-syria-and-iraq-had-the-weakest-passports-in-2022/#:~:text=The%20three%20Middle%20Eastern%20countries,conflicts%20and%20visa%2Doverstay%20risk. Reports cite rampant corruption and bribery, with some Afghans paying eight times the official cost to receive a passport. Id.

[4] Those previously employed in Afghanistan “by, or on behalf of the U.S. government,” or “by the International Security Assistance Force (ISAF), or a successor mission (1) in a capacity that required you to serve as an interpreter or translator for U.S. military personnel while traveling off-base with U.S. military personnel stationed at ISAF, or a successor mission, or (2) to perform sensitive and trusted activities for U.S. military personnel stationed at ISAF, or a successor mission” fall under special immigrant status. See Special Immigrant Visas for Afghans – Who Were Employed by/on Behalf of the U.S. Government, U.S. Department of State, https://travel.state.gov/content/travel/en/us-visas/immigrate/special-immg-visa-afghans-employed-us-gov.html (accessed Apr. 14, 2023). Special immigrants under this category qualify for lawful permanent residence status. Id. In other words, proof of employment with the U.S. government may constitute a ticket to green-card status.

[5] See supra text accompanying note 6 (explaining that educated Afghan women may qualify for asylum under the “membership in a particular social group” category).

[6] To qualify for refugee or asylum status, an individual must show they have suffered past persecution or have a well-founded fear of future persecution in their home country because of their race, religion, nationality, membership in a particular social group, or political opinion. See INA § 101(a)(42); 8 U.S.C. § 1101(a)(42). “The source of the persecution must be the government or forces that the government is unwilling or unable to control.” Singh v. Garland, 48 F.4th 1059, 1067 (9th Cir. 2022) (quoting Canales-Vargas v. Gonzales, 441 F.3d 739, 743 (9th Cir. 2006)).

To establish past persecution or fear of future persecution, the applicant must show the harm they experienced or fear rises to the level of legal persecution. Id. at 1068. Courts have held that repeated physical harm constitutes persecution. See Lopez v. Ashcroft, 366 F.3d 799, 803 (9th Cir. 2004). In contrast, “a few isolated incidents of verbal harassment or intimidation, unaccompanied by any physical punishment, infliction of harm, or significant deprivation of liberty,” does not meet this threshold. Mikhailevitch v. I.N.S., 146 F.3d 384, 390 (6th Cir. 1998).

Any established persecution must be on account of one of the five enumerated grounds. Many recent Afghans seeking asylum in the United States have done so on account of their political opinions. Still, most Afghan applicants fit more than one of the enumerated grounds for asylum. Members of ethnic minority groups such as the Hazaras fear persecution by the Taliban government on account of their race. Sitarah Mohammadi and Sajjad Askary, Why the Hazara people fear genocide in Afghanistan, Al Jazeera, https://www.aljazeera.com/opinions/2021/10/27/why-the-hazara-people-fear-genocide-in-afghanistan (Oct. 27, 2021). Many Afghan Christians and Shia Muslims fear persecution because of their religion. U.N. expert decries ‘systematic’ attacks on Afghan Shia groups, Al Jazeera, https://www.aljazeera.com/news/2022/9/12/un-expert-decries-systematic-attacks-on-afghan-shia-groups (Sept. 12, 2022); Christians in Extreme Danger in Afghanistan, USCIRF Spotlight, United States Commission on International Religious Freedom (Jan. 28, 2022). Additionally, many Afghan women who received university education apply for asylum on account of their “membership in a particular social group,” in addition to other grounds. That said, the definition of the “particular social group” is disputed and subject to frequent litigation.

[7] The document in question is called an I-589. See supra text accompanying note 17. Please fit your greatest fears and traumas into the space provided. “Have you, your family, or close friends or colleagues ever experienced harm or mistreatment or threats in the past by anyone? If ‘Yes,’ explain in detail[.]” See I-589, Application for Asylum and Withholding of Removal, Department of Homeland Security, U.S. Department of Justice; https://www.uscis.gov/sites/default/files/document/forms/i-589.pdf. “Are you afraid of being subjected to torture in your home country or any other country to which you may be returned? If ‘Yes,’ explain why … describe the nature of torture[.]” Id. This is the affirmative asylum application process.

[8] The United States ratified the Convention Against Torture and Other Cruel, Inhumane or degrading Treatment of Punishment (CAT) in 1994. https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-9&chapter=4&clang=_en. Article 3 of CAT forbids any signatory country from expelling, returning, or extraditing a person to another country if there are substantial grounds for believing that he would be in danger of being subjected to torture. 8 C.F.R. § 208.18. General violence or human rights violations in a country are insufficient to require relief under CAT. Id. Instead, an applicant must show they would likely face an act that (1) causes severe physical or mental pain and suffering, (2) intentionally inflicted (3) for a proscribed purpose (4) by or with the acquiescence of a government official and (5) not arising from lawful sanctions. See 8 C.F.R. § 208.18(a); In re J-E-, 23 I. & N. Dec. 291 (BIA 2002). This definition is extremely narrow.

[9] Torture by the Taliban is well-documented. See, e.g., Peter Beaumont and Hannah Ellis-Petersen, Afghanistan reports of torture and killing contradict Taliban’s promises, The Guardian, https://www.theguardian.com/world/2021/aug/20/afghanistan-reports-of-torture-and-killing-contradict-taliban-promises (Aug. 21, 2021); Afghanistan: Taliban Torture Civilians in Panjshir, Human Rights Watch, https://www.hrw.org/news/2022/06/10/afghanistan-taliban-torture-civilians-panjshir (June 10, 2022); Afghanistan: Taliban torture and execute Hazaras in targeted attack – new investigation, Amnesty International, https://www.amnesty.org/en/latest/news/2022/09/afghanistan-taliban-torture-and-execute-hazaras-in-targeted-attack-new-investigation/ (Sept. 15, 2022).

[10] This language itself is dangerous. Terms such as “flooding,” “surging,” or “pouring in” create an image of migrants as water, signaling danger. It’s dehumanizing. See generally Bram Frouws, Negative narrative, mistaken metaphors: The need for careful language on migration, Mixed Migration Centre, https://mixedmigration.org/articles/op-ed-negative-narratives-mistaken-metaphors-the-need-for-careful-language-on-migration/ (Mar. 8, 2021); Keith Cunningham-Parmeter, Alien Language: Immigration Metaphors and the Jurisprudence of Otherness, 79 Fordham L. Rev. 1545 (2011).

[11] See Luke Harding and Ben Doherty, Kabul airport: footage appears to show Afghans falling from plane after takeoff, The Guardian, https://www.theguardian.com/world/2021/aug/16/kabul-airport-chaos-and-panic-as-afghans-and-foreigners-attempt-to-flee-the-capital (Aug. 16, 2021).

[12] In this case, no one was “stamped.” All came to the United States awaiting legal status that had yet to be determined. The main difference between refugee and asylum status is that the refugee applicant applies from abroad, whereas the asylum applicant applies from within the United States or at its border. See Weissbrodt at 383. None of the Fort McCoy visitors had time to apply via the refugee route. All who qualified thus sought affirmative asylum. Even so, the documentation required for asylum is often hard to gather. Hopeful asylees must submit a valid form of identification, including any passports, other travel or identification documents, and Form I-94, Arrival-Departure Record, if received upon arrival to the United States. See Preparing for Your Affirmative Asylum Interview, U.S. Citizenship and Immigration Services, https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/preparing-for-your-affirmative-asylum-interview (last visited Apr. 8, 2022). In addition, they must provide originals of any birth certificates and marriage certificates, a particularly difficult ask when many applicants left their home countries under stressed or urgent circumstances. Id. And, any documents not in English must be accompanied by a certified translation. Id.

[13] Here, the “authorities” are asylum officers, employed by U.S. Citizenship and Immigration Services (USCIS), the agency within the Department of Homeland Security (DHS) responsible for adjudicating asylum applications. See 8 U.S.C. § 1225.

[14] Applicants for asylum can apply through three general processes: through an asylum merits interview following expedited removal proceedings and a positive credible fear determination, through the defensive asylum process before an immigration judge during removal proceedings, or through the affirmative asylum process. See The Affirmative Asylum Process, U.S. Citizenship and Immigration Services, https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/the-affirmative-asylum-process (last visited Apr. 8, 2022). In other words, applicants for asylum may apply (1) upon arriving in the United States, (2) after arrival, within one year of admission, and (3) during the removal process as a defense to removal from the United States, again, within one year of admission. See Weissbrodt at 390.

In the United States, the affirmative asylum process goes something like this: First, the applicant must physically arrive in the United States. See The Affirmative Asylum Process, U.S. Citizenship and Immigration Services, https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/the-affirmative-asylum-process (last visited Apr. 8, 2022). Second, they must apply for asylum by filing Form I-589, Application for Asylum and for Withholding of Removal. This must be filed within one year of the applicant’s arrival to the United States, unless an extension is granted. See INA § 208(a)(2)(B); 8 U.S.C. § 1158(a)(2)(B). Those previously denied asylum are ineligible (INA § 208(a)(2)(C); 8 U.S.C. § 1158(a)(2)(C)), as are those who can be removed to a safe third country (INA § 208(a)(2)(A); 8 U.S.C. § 1158(a)(2)(A)), or those who have committed certain crimes (INA § 208(b)(2); 8 U.S.C. § 1158(b)(2)). Once U.S. Citizenship and Immigration Services (USCIS) has received the application, it will send the applicant an acknowledgement of receipt and a notice to visit the nearest application support center for fingerprinting. See The Affirmative Asylum Process, U.S. Citizenship and Immigration Services, https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/the-affirmative-asylum-process (last visited Apr. 8, 2022). Third, the applicant must undergo fingerprinting and an intensive background check. Id. Fourth, following a successful background check, the applicant will receive an interview notice from USCIS. Id. Applicants are categorized as either first, second, or third priority in terms of scheduled interview times. Id. Fifth, the applicant must attend their scheduled interview, along with any family members seeking derivative asylum. Id. Applicants are not entitled to attorneys or interpreters. Instead, they should arrange to bring their own. Id., see also Preparing for Your Affirmative Asylum Interview, U.S. Citizenship and Immigration Services, https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/preparing-for-your-affirmative-asylum-interview (last visited Apr. 8, 2022). Interviews typically last around one hour, where the asylum officer will review the required documentation provided by the applicant and ask questions to determine whether the applicant meets the requirements for asylum status. Id. Sixth, the asylum officer will make the asylum status determination. Id. The applicant “must meet the definition of a refugee in order to be eligible for asylum. The asylum officer will determine whether [the applicant]: [is] eligible to apply for asylum; [m]eet[s] the definition of a refugee in section 101(a)(42)(A) of the INA; and [is] barred from being granted asylum under section 208(b)(2) of the INA.” Id. Following this determination, “[a] supervisory asylum officer [will review[] the asylum officer’s decision to ensure it is consistent with the law. Depending on the case, the supervisory asylum officer may refer the decision to asylum division staff at USCIS headquarters for additional review.” Id. Finally, the applicant will receive the decision. Id. Typically, they are required to return to the asylum office in-person two weeks following their interview to pick up the decision. Id.

[15] Many of the applicants I worked with were eventually moving to Texas, some to D.C., and others still scattered across the remaining regions. In total, over 83,000 people arrived in the U.S. as part of an operation dubbed Allies Welcome by the U.S. Department of Homeland Security. However, the arrival of so many people at once—of which nearly all are seeking asylum—has overwhelmed the already over-burdened immigration system. Most asylum seekers cannot afford typical attorney’s fees, and there is no guaranteed right to counsel for asylum applicants. As a result, they must seek counsel through pro bono attorneys operating mainly through nonprofits or law school clinics. The demand far outweighs the supply.

It may take years before Afghan nationals can secure permanent resident status in the United States. Immigration lawyers, scholars and activists are pushing for lawmakers to create a statutory path to citizenship for Afghans, a process Congress has used in the past to receive Cuban nationals, Hungarians escaping Soviet rule and Liberians fleeing civil war, political instability and, more recently, an Ebola outbreak. However, this proposed path to citizenship, referred to as the Afghan Adjustment Act, has failed to make headway in the current Congress. Marco Poggio, 83,000 Afghans Made it to the U.S. Now They Need Lawyers, Law 360, https://www.law360.com/articles/1462197/83-000-afghans-made-it-to-the-us-now-they-need-lawyers?copied=1 (Feb. 6, 2022).

[16] There are never enough qualified attorneys to work on asylum cases. Additionally, case backlogs can trap applicants in limbo for months and often years. See Muzaffar Chishti and Julia Gelatt, Mounting Backlogs Undermine U.S. Immigration System and Impede Biden Policy Changes, Migration Policy Institute, https://www.migrationpolicy.org/article/us-immigration-backlogs-mounting-undermine-biden (Feb. 22, 2023) (“The immigration court backlog now tops 1.6 million cases, up from 1.1 million before the pandemic and more than double the caseload that existed in fiscal year (FY) 2018. At USCIS, the backlog has surged from 5.7 million applications at the end of FY 2019 to about 9.5 million as of February. And at the State Department, waits for in-person consular interviews for immigrant visas rose to a high of 532,000 last July, up from an average 60,900 in 2019 before the pandemic.”).

[17] A noncitizen who seeks admission as an immigrant, including under asylum status, who fails to show proof of vaccination against vaccine-preventable diseases is inadmissible and therefore ineligible for admission or adjustment of status. INA § (a)(1)(A)(ii).

[18] I didn’t get into the difference between trauma and post-traumatic stress disorder. I’m not equipped for that. This weakness on my part, even as a law student, points to a major underlying problem with the asylum process: many lawyers are not sufficiently trained to work with victims of trauma, and the asylum process itself is re-traumatizing. See Katrin Schock, Rita Rosner, and Christine Knaevelsrud, Impact of asylum interviews on the mental health of traumatized asylum seeker, European J. of Psychotraumatology (2015), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4558273/pdf/EJPT-6-26286.pdf. Even with the growing movement toward trauma-informed lawyering, the asylum process is embedded with triggers, from the repeated questioning of applicants to the cross-examination format of credible fear interviews that each applicant must complete. See Ann E. Webb, Robbin E. Gearing, Hope W. Baker, Trauma-Informed Lawyering in The Asylum Process: Engagement and Practice in Immigration Law, 4 J. Mental Health Soc. Behavior 171 (2022), https://doi.org/10.33790/jmhsb1100171 (“By the very nature of the process, the person applying for asylum must repeatedly recount their past persecution or fear of future persecution to prove credibility and eligibility for asylum. During the first processing encounter with a customs and border protection officer, the individual is asked whether they are afraid to return to their home country. Following that initial encounter, which is transcribed and becomes part of the individual’s record, the asylum seeker then participates in a credible fear interview, in which they again are asked about fear of return and the details of the alleged persecution. The credible fear interview is also recorded or transcribed and becomes part of the record. If the individual receives a positive credible fear hearing, the next step in the process is finding a lawyer to assist with the merits of their asylum claim, which may involve telling their story to several different individuals or agencies before finding a lawyer who will take the claim. The individual then needs to recount their story to the lawyer, and possibly to a legal assistant or investigator. Because of the need to create a paper record, the individual will typically have to tell their story a number of times to the attorney or the attorney’s staff members in order to create a sworn declaration. The individual then goes to court where the story must again be repeated to the immigration judge.”).

[19] See supra text accompanying note 15.

[20] You must also take note: This isn’t her identity. The girl across the table is more than the trauma she’s retold over and over again. Really, she’s just a person.

[21] Even if found to be credible, the asylum applicant’s trauma may not be considered “enough” to count as legal persecution. See, e.g., Dandan v. Ashcroft, 339 F.3d 567, 574 (7th Cir. 2003) (“While it is distasteful to have to quantify suffering for the purposes of determining asylum eligibility, that is our task.”); see also Abdelmalek v. Mukasey, 540 F.3d 19, 23 (1st Cir. 2008) (“It is never a pleasant task to attempt to quantify an individual’s suffering and measure it against the suffering of others.”).

* Coryn Johnson is a staffer for JLI Vol. 41.

Prescribing “Justice”? How the Court’s Stay in Alliance for Hippocratic Medicine Demonstrates the Dangerous Growth of Policy-Driven Adjudication in Federal Courts

By jlieditors

By Evelyn Doran*

In August 2022, the Alliance for Hippocratic Medicine (AHM) filed its articles of incorporation in Amarillo, Texas.[1] Three months later, it filed a complaint in the District Court for the Northern District of Texas, the federal district court that serves Amarillo and the surrounding region.[2] In this complaint, it alleged that the Food and Drug Administration’s (“FDA”) 2000 approval of the drug Mifepristone for use in a medication abortion regimen was unlawful and enabled the criminal provision of said drug.[3] When AHM filed its suit, it did not have to guess which judge would review the case—rather, it knew that its complaint would land on the desk of Judge Matthew Kacsmaryk. Kacsmaryk, who was nominated by Donald Trump in 2017, serves as the sole judge for the Amarillo Division of the Northern District of Texas.[4]

With this context in mind, the language in Judge Kacsmaryk’s recent order, which issued a stay requiring the FDA to rescind its approval of Mifepristone, starts to make a lot more sense. Judge Kacsmaryk has been an outspoken opponent of abortion for years and has already been accused of values-based adjudication in his short time on the bench.[5] The policymaking that this order achieves, as well as the value-laden language it uses, serves as a prime example of the way judicial outcomes have increasingly appeared to serve a political end, rather than a jurisprudential one.

Over the past year, public trust in the Supreme Court has waned.[6] Americans are increasingly concerned that the Court allows its biases and personal values to impact what should be a fair, neutral review of the claims before it.[7] But this attitude does not stop at the high court. Rather, many feel that it extends to the federal circuit and district courts.[8] People that interact with the federal judiciary have come to recognize certain jurisdictions as deeply partisan, with the Fifth Circuit (the circuit that will review Judge Kacsmaryk’s order) epitomizing this trend. During his presidency, Trump appointed six judges to the Fifth Circuit.[9] These judges are all outspoken conservatives, and many entered the judiciary after working for Republican campaigns and state offices.[10] This trend is mirrored at the district court level as well, as Trump appointed a total of 226 judges in the span of four years.[11] Though this total is lower than that of recent two-term presidents,[12] it is still noteworthy because of how much Trump was able to reshape the federal judiciary in four years.

One such appointee is Judge Kacsmaryk, whose role in this larger trend is clear in his recent order. In the order, he makes determinations regarding the legality of the FDA’s prior approval of Mifepristone by relying on unscientific and politically charged notions of pregnancy, motherhood, women’s health, and bodily autonomy.[13] In the course of doing so, he roots his arguments in a paternalistic understanding of how women’s bodies must be policed. Indeed, Judge Kacsmaryk borrows much of his rhetoric directly from the plaintiffs’ complaint, making sure to note the importance of using the terms “unborn child” or “unborn human” to describe the fetus, even though medical professionals have disavowed these terms as medically inaccurate.[14] These rhetorical decisions, along with his characterization of Planned Parenthood and other clinics and physicians that provide abortions, betray his biases.[15] Before joining the bench, Judge Kacsmaryk decried marriage equality, reproductive rights, anti-discrimination laws, and state bans on conversion therapy.[16] In an article he wrote for the conservative think tank The Witherspoon Institute, he opined that the expansion of access to abortion “sought public affirmation of the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults.”[17]

This brief analysis of one judge’s political engagement prior to his time on the bench and how it has crept into his adjudication provides but a small window into what is a much larger problem. As we become increasingly divided, judges may be incentivized to reach conclusions in politically contentious cases that serve their personal policy goals. We can see this trend at work in recent rulings on access to reproductive medical care, religious liberty, and gender-affirming care.[18] Public trust also reflects this reality, as many people have become disenchanted with the judiciary, and feel that it has fallen short of its role as a neutral arbiter of justice. If the courts want to maintain the goodwill of the people it serves, they will ultimately need to find a way to win back that public trust.

*Evelyn Doran is a staff member for Volume 41 of the Minnesota Journal of Law & Inequality.

[1] Jordan Smith, The Shadow Medical Community Behind the Attempt to Ban Medication Abortion, Intercept (Feb. 28, 2023), https://theintercept.com/2023/02/28/medication-abortion-lawsuit/.

[2] Id.

[3] Complaint at ¶¶ 50, 115-17, Alliance for Hippocratic Medicine v. FDA, No. 2:22-cv-00223-Z (N.D. Tex. Nov. 18, 2022).

[4] Brendon Pierson & Tom Hals, Judges Issue Conflicting Abortion-Pill Injunctions, Reuters (Apr. 10, 2023), https://www.reuters.com/legal/us-judge-hands-anti-abortion-groups-partial-win-over-abortion-pill-2023-04-07/#:~:text=April%207%20(Reuters)%20%2D%20A,rights%20in%20the%20United%20States.; Amarillo Court Information, U.S. District Court N.D. Tex., https://www.txnd.uscourts.gov/location/amarillo (last accessed Apr. 13, 2023); Judge Matthew J. Kacsmaryk, District Judges, https://www.txnd.uscourts.gov/judge/judge-matthew-kacsmaryk (last accessed Apr. 13, 2023).

[5] Smith, supra note 1.

[6] Positive Views of Supreme Court Decline Sharply Following Abortion Ruling, Pew Rsch. Ctr. (Sept. 1, 2022), https://www.pewresearch.org/politics/2022/09/01/positive-views-of-supreme-court-decline-sharply-following-abortion-ruling/.

[7] Id.

[8] Ann E. Marimow, Trump’s Lasting Legacy on the Judiciary Is Not Just at the Supreme Court, Wash. Post (Jan. 29, 2023), https://www.washingtonpost.com/politics/2023/01/29/5th-circuit-court-trump-judges-conservative/.

[9] Id.

[10] Id.

[11] John Gramlich, How Trump Compares With Other Recent Presidents in Appointing Federal Judges, Pew Rsch. Ctr. (Jan. 13, 2021), https://www.pewresearch.org/fact-tank/2021/01/13/how-trump-compares-with-other-recent-presidents-in-appointing-federal-judges/.

[12] President Obama appointed a total of 320 federal judges, while President Bush appointed 322. Id.

[13] See, e.g., Alliance for Hippocratic Medicine v. FDA, No. 2:22-cv-00223-Z, at 40 (Apr. 7, 2023) (holding that Mifepristone does not provide a meaningful therapeutic benefit in part because pregnancy is “a normal physiological state most women experience one or more times during their childbearing years,” and failing to recognize the serious medical complications that often accompany pregnancy). Cf., Pregnancy Mortality Surveillance System, Ctrs. for Disease Control & Prevention (Apr. 15, 2023), https://www.cdc.gov/reproductivehealth/maternal-mortality/pregnancy-mortality-surveillance-system.htm.

[14] Compare Alliance for Hippocratic Medicine, No. 2:22-cv-00223-Z , at 2, n.1 (“Jurists often use the word ‘fetus’ to inaccurately identify unborn humans in unscientific ways. . . . [T]his Court uses ‘unborn human’ or ‘unborn child’ terminology throughout this Order, as appropriate.”), with ACOG Guide to Language and Abortion, Am. Coll. Obstetricians & Gynecologists (Apr. 15, 2023), https://www.acog.org/contact/media-center/abortion-language-guide (“Centering the language on a future state of a pregnancy is medically inaccurate. As long as the pregnancy continues, the language should reflect the current state. Through 8 weeks after last menstrual period, [use the word] ‘embryo.’ After that point until delivery, [the correct term is] ‘fetus.’”).

[15] Throughout the order, Judge Kacsmaryk refers to Planned Parenthood and other clinicians as “abortionists” and “eugenicists.” See, e.g., Alliance for Hippocratic Medicine, No. 2:22-cv-00223-Z, at 2, n.2. The American College of Obstetricians and Gynecologists has disavowed this language as well. See American College of Obstetricians and Gynecologists, supra note 14.

[16] All. for Just., AJF Nominee Report: Matthew Kacsmaryk, https://www.afj.org/wp-content/uploads/2019/12/AFJ-Kacsmaryk-Report.pdf.

[17] Mathew Kacsmaryk, The Inequality Act: Weaponizing Same-Sex Marriage, Pub. Discourse (Sept. 4, 2015), https://www.thepublicdiscourse.com/2015/09/15612/.

[18] See, e.g., Dobbs v. Jackson Women’s Health Org., 597 U.S. ___ (2022); Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021); Franciscan Alliance v. Burwell, 227 F. Supp. 3d 660 (N.D. Tex. 2016).

Long-Term Discrimination: Addressing the Disparate Treatment of Claimants with Mental Disabilities in Long-Term Disability Insurance

By jlieditors

By: Joseph Scanlon

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Inequality as the Vertical partiality of Public Administration: Empirical Evidence from the Judiciary

By jlieditors

By Paolo D’Anselmi†

1. Introduction

One of the tenets of democratic – and perhaps totalitarian – governance is the impartiality of public administration. Public managers in fact are supposed to take decisions without discriminating between one citizen and the next citizen nor between one politician and the next politician. This is the quality of public managers called impartiality.[1]Impartiality implies that public managers treat all citizens (and all politicians) “on the same plane’. Such geometrical metaphor makes us call this kind of impartiality ‘horizontal impartiality.” However, there is one aspect of impartiality that is not considered in public law: discrimination on the part of public managers between themselves and the rest of society. The purpose of this essay is to show by empirical evidence the existence of such “vertical partiality”[2] of public managers, thus adding one dimension to inequality.

A first element of originality of this essay lies in its identification of the judicial system as a natural experiment in the evaluation of the quality of decision-making. Judicial rulings in fact, are decisions about decisions: a conviction is an approval of the decision to send the case to court; an acquittal is a negative evaluation of the decision to send the case to court. The judicial system has an inherent characteristic as an evaluation process.

This essay is also original because it provides a behavioral interpretation of managerial non-financial data on a key decision-making process of public administration whereas the mainstream interpretation is that the judicial systems is not endowed with enough resources.[3]

As pointed out, the methodology of this essay is based on a natural organizational experiment identified in the judicial system’s inherent characteristic as an evaluation mechanism on the quality of decisions. Therefore, conviction and acquittal statistics provide quantitative evidence on the quality of decisions made by a specific category of public managers: public prosecutors. The specific kind of decision that is examined here is whether to dismiss or send a case to court. Relevant theory is shown correct by induction.

The structure of the essay is as follows: section 2 recalls the relevant literature; section 3 illustrates criminal procedure in a comparative perspective, the empirical evidence, and the findings; discussion of possible remedies is in section 4; future studies are discussed in section 5; section 6 finally wraps the essay up with conclusions.

2. Literature review

This section presents the literature that is relevant to the thesis of this essay. The first subsection shows the importance of impartiality in public law and a second subsection illustrates the theory about organizational behavior that the essay hypothesizes to be the basis of the observed behavior.

2.1 Impartiality as a key element of public administration

Public law identifies impartiality as a key quality of public administration. Let us examine a sample of US and UK legislation proposing or protecting the value of public administration impartiality. US legislation for instance focuses on conflict of interest, whereby one member of public administration prefers him or herself to the rest of society[4]. UK legislation[5] and the Italian constitution[6] are more explicit about impartiality as a major quality of public administration.

Following the taxonomy started above, conflict of interest could be dubbed as “subjective vertical partiality,” whereby an individual prefers himself to the institution. Going further, there appears to be a gap in public law because it does not take into account the possibility of an ‘objective vertical partiality’ of public administration, i.e. the possibility that public employees give priority to their own needs and aspirations in the process of performing their organizational tasks just by virtue of public administration’s organizational arrangements rather than by their own subjective inclinations and personal interest[7]. Such “objective vertical partiality” – or simply vertical partiality – is the subject of this essay. The key idea of this essay is to capture an empirical instance of such vertical partiality. Before we do that, let us recall the specific literature upon which the notion of vertical partiality is based.

2.2 Bureaucratic Behavior

Different from public law, literature on organizational behavior does contemplate “objective vertical partiality” when dealing with monopolistic organizations, like public administration.[8] One specific microeconomic formulation of the utility function of the monopolistic public manager is due to William Niskanen, who theorized the bureaucrat’s pursuit of “ease of management.” The following citation puts such theory into perspective:

“A further step beyond Max Weber’s model was made by Gordon Tullock in his The Politics of Bureaucracy. He uses the concept of the maximizing bureaucrat that had been introduced by C. Northcote Parkinson as a basis for his analysis of bureaucracy. On the basis of the intuitions and suggestions of Tullock, William A. Niskanen, in his seminal article ‘Non-market decision-making – The Peculiar Economics of Bureaucracy’ translated the principles of the maximizing bureaucrat into an economic theory in full mathematical form based on the following axioms: (1) Bureaucrats maximize the total budget of their bureau, given demand and cost conditions, with the constraint that the budget must be equal to or greater than the minimum total costs at the equilibrium output. (2) Bureaus exchange a specific output (or combination of outputs) for a specific budget. Therefore, as in the free market, every actor pursues the maximization of his own utility either by profit or by the satisfaction of one’s own needs. Likewise, the public manager or bureaucrat, far from being a monk without needs, maximizes his own budget as a proxy for such utility providing factors as: ‘salary; perquisites of the office; public reputation; power; patronage (opportunity to provide and receive protection); ease in managing the bureau; ease in making changes (in his bureau).” [9]

Prosecutors are public managers; their bureaus are here hypothesized to follow the two Niskanen axioms and individually they are here hypothesized to maximize their utility function deriving from the Niskanen axioms; in particular, they are here hypothesized to pursue the “ease of management” factor of their utility function. The present hypothesis, of course, does not imply an awareness on the part of prosecutors; prosecutors are not implied to consciously pursue “ease of management” nor it is implied they are not hard working managers. The microeconomic model is in accord with the positive economics model “as if” methodology .[10]

The idea here is to see prosecutors as public managers making “non-market decisions,”[11] independent as much as possible of the specifics of their judicial function. The research question is: are public managers behaving with impartiality between themselves and society? Operationally, such question becomes the hypothesis we cannot reject: prosecutors in Italy are sending to the court for pre-trial hearings a higher quantity of cases than their capability of winning them would warrant. The relevance of Niskanen’s axioms is also dealt with in Section 3, where criminal systems are examined in a comparative perspective.

Notice in Niskanen the importance of monopolistic organizational arrangements of public administration as underlined by Oliver Williamson.[12] While William Niskanen provides an economic theory outside of the realm of public administration, his theory is in accord with Bruce Ackerman’s view of public administration as “the fourth branch of government: the bureaucracy.”[13] In Ackerman’s words: this essay wants “to embrace the distinctive structural problems involved in controlling the fourth branch of government,” the bureaucracy.[14] It is worthwhile to point out here the following distinction: administrative law in Ackerman’s article refers to U.S. Departments of federal government and their role. This system is distinct from state criminal justice systems. This essay however, looks at national public administrations as an example, as a part for the whole, in a comparative perspective.

Members of the judicial system may not perceive themselves as part of public administration, however they do verify Niskanen’s axioms as being part of the bureaucracy. Moreover, in some countries they do perceive themselves as part of public administration even from a functional point of view.[15]

Having recalled the relevant literature, let us now examine one specific empirical instance of ease of management: moving decisions forward, i.e. , needing more information in order to arrive to a decision which represents the essence of bureaucratic decision-making. This is vertical partiality in action: the bureaucrat pursues his or her own utility function irrespective of the consequences for the mission of the public organization he or she is part of.

3. Empirical evidence

Public prosecutors do make decisions. As such they are public managers. One type of key decision public prosecutors make is whether to file a criminal complaint (send a case to court) or dismiss it.

Let us provide first an overview of criminal procedure in Italy, the US, the UK, and Germany.

3.1 Comparative criminal procedure

The analysis we are trying to make here is ceteris paribus, independent of each country’s criminal code and – as much as possible – independent of the pre-trial procedure. Therefore, let us provide here an overview of comparative criminal procedure in Germany, Italy, UK, and US, which are the four countries we are going to provide quantitative data about. Prosecutors are the “gate keepers of criminal justice.”[16] Therefore, this essay focuses on the prosecutors as shorthand for the whole decision-making chain of intermediate proceedings, between the end of investigation and the beginning of trial.[17] The subsequent paragraphs provide an in-depth discussion of such decision-making chain in the countries we are considering, pointing out similarities and differences, in order to ascertain the impact that such differences may have on the basic hypothesis of this essay: that we cannot reject the hypothesis that prosecutors in Italy are moving decisions forward to trial in order to obtain more information and ease their own work.

In all four countries the burden of proof is on the Government and “criminal proceedings are divided into three stages: investigation, intermediate proceedings, and trial.

When the investigation is complete the prosecutor will decide whether to discontinue the proceedings”[18] or whether to press charges on the suspect.

Thus, “[i]n the intermediate proceedings a court assesses the charge and decides whether or not the prosecution should proceed.”[19]

In Italy the court that assesses the charge and decides whether or not the prosecution should proceed is the judge for pre-trial hearing (in Italian: giudice per l’udienza preliminare – “GUP”). In the US such court is the Grand Jury.[20] In the US the pre-trial is called “Preliminary Hearing” and it is a “mini-trial.”[21] In the UK, such court is the Magistrates Court or the Crown Court, depending on the seriousness of a crime, and the proceedings are called pre-trial court hearings.[22]

There are variations in the intermediate proceedings. The main variations are “summary proceedings”, “discontinuation of proceedings”, and “expedited proceedings.”[23] Variations are available in all countries, with different nuances, that are discussed in the following paragraphs.

Summary proceedings are available in Germany and Italy.[24] In Italy this happens when the defendant is subject – for instance – to arrest. In that case, there is no pre-trial hearing and the case is sent to court for trial by the “judge for investigation” (in Italian: “Giudice per le indagini preliminary” – GIP).

Discontinuation of proceedings is available in all countries considered here, whereby the prosecutor decides to not press charges and not to proceed to court for trial.

Expedited proceedings (in Italian: “rito abbreviato”) is available in Germany and Italy. In the Italian case, the defendant accepts the available evidence produced by the prosecutor and has access to the benefit of one third reduction of the penalty. In the US and UK, such variation appears to be absorbed by the plea deal, as discussed below.

More differences in the intermediate proceedings are also discussed with reference to the following items: discovery of information, hearing of witnesses, plea deal / plea bargaining, and likelihood of conviction.[25]

Discovery of information available to the parties involved happens in Italy before intermediate proceedings whereas in the US and UK it appears to happen during intermediate proceedings. However, in both cases discovery of information does happen before the preliminary hearing.

Hearing of witnesses happens – in a preliminary fashion – in the US during intermediate proceedings whereas it happens in Italy only at the trial and it does not take place during intermediate proceedings.

Plea deal and plea bargaining is available in Italy (in Italian: “patteggiamento”) and the US at least. Such possible deals are struck before going to trial and take place instead of ordinary trial. In the US, plea deal appears to be more flexible than in Italy. This essay does not include analysis and data on plea deals. Only the prosecutor (and the court) decisions are analysed, net of ritual variations.

One specificity of the German intermediate proceedings is that if the court that assesses the charge believes that there is enough evidence to make a conviction likely, it will open’ the trial. Such concept of likelihood of conviction is not present at this time in the Italian criminal procedure.[26] Reform to introduce such concept has been passed, but it is not operational at this time yet this law was dubbed as the ‘Cartabia Reform’; it was put in place by the Draghi Cabinet Minister of Justice Marta Cartabia.[27]

However, in Italy prosecutors do discontinue a large share of cases, which is interpreted here as an implicit evaluation of likelihood of conviction, albeit current procedure does not make such wording explicit.

As said above, intermediate proceedings are the focus of this essay. This essay deals only with outcomes of trial through ‘ordinary procedure’, where the defendant decides to go to court for trial and does not opt for one of the available variations outlined above. For the purpose of this essay, the key point in the intermediate proceedings is that all variations (plea deal, for instance) are known and exercised when the prosecutor and the court decide to send the case forward to trial.

For instance, it may be the case that the prosecutor offered a plea deal, and the defendant refused the deal and exercised their right to a trial. The key concept is that all available choices are known to all parties at the time of going to trial. However, the prosecutor and the court still decide to send the case to trial, thus being responsible for the possible acquittal as an outcome of the trial. If a defendant was offered a plea deal and refused it, that may be an indication of at least partial innocence of the defendant.

The significant differences – especially vis-à-vis the US criminal procedure – lay in the hearing of witnesses and plea deal flexibility. Hearing of witnesses in Italy does not happen in the intermediate proceedings, thus leaving Italian prosecutors and courts without an important piece of information. Plea deal lower flexibility in the Italian case may also account for the less significant use of this institute in Italy. Such differences may account for at least part of the higher propensity of Italian prosecutors and courts for sending cases to trial.

One may further object that it is unclear that prosecutors’ moving decisions forward is the key reason criminal cases advance to trial. In fact, in doing so prosecutors have to prepare for trial, which is a significant amount of work. This should be an incentive to create plea deals rather than having each case go to trial. Having so far made comparative considerations about norm, it is probably necessary to also deal with issues of praxis, or implementation of the norm, in the following.

In moving decisions forward, prosecutors do congest the judicial system and complicate their own work among other things. However, this is a long run and strategic incentive and a system incentive, meaning the congestion is for all and the individual caseload appears more as a sign of ‘having a lot of work to do’ than as a sign of moving decisions forward. Short run incentives on the other hand, are for starting a lot of cases. In fact, cases are in the news especially in their initial steps, such as arrest and seizure of wealth.

Also, police investigators – who help prosecutors – have short run incentives; for instance, they receive a ‘career praise’ (‘encomio’) when they make an arrest or gain media visibility. The media on the other hand, propose the investigator words verbatim to the public, in the indicative mode, s a matter of fact rather than an investigative hypothesis.

Take also into account that the scheduling of trials in Italy happens in a sort of ‘round robin’ fashion (borrowing a term from the multitasking fashion computers process different tasks through their central processing unit). The hearings of one trial are intertwined over time with the hearings of many other trials, possibly rotating the whole stack of the court between one hearing and the next hearing of the same trial. It is not uncommon that a trial may last years. Whereas in the US the hearings of one specific trial are scheduled more frequently (in the matter of days and weeks, probably) and the length of one trial is likely to be measured in months rather than years. So, the workload of one prosecutor is sensitive to the ‘moving forward’ of decisions only in the long run and it is not specific to having made a decision one way or the other.

Moreover, in Italy dismissing a case needs writing a dismissal document (in Italian: “sentenza”) on the part of the prosecutor – which can be opposed by one of the parties involved or evaluated by internal control – while sending a case to court is a simpler procedure and is not subject to evaluation.

Niskanen’s axiom of budget maximization is implied by system congestion; if the system is congested, prosecutors – and the courts in general – can ask the government for extra budget; if the system is not congested and it works fine, it is harder to ask for extra budget to obtain more action and better results. In Italian praxis, only pre-trial motions are entertained in the pre-trial hearings, and the pre-trial court does not check the available evidence. The pre-trial courts act this way, claiming they do not have the resources to perform “mini-trials.” Thus, they take the issue back to the lump sum amount of resources available to the courts, which is Niskanen’s second axiom. In fact, in the Italian procedure, prosecutors do not have any personal incentive to pursue the conviction of defendants, because the outcome of trials is not taken into account in the evaluation of prosecutors or judges for advancement in their careers. Rather, career advancement is mostly based on seniority. However, lawyers in Italy argue the prosecutors maximize the number of trials in order to saturate the defendants’ resources – financial and physical (time, attention, emotions).

In summation, the Italian procedure appears to not take into account the cost of trials to society.[28] Such costs are imposed on the criminal procedure system (for instance, congestion of courts), and are imposed on defendants (for instance, financial and human cost of undergoing investigation, pre-trial hearings and trial). However, the bigger costs appear to be imposed on society as a whole, due to the ineffective public perception and low deterrence effect of criminal proceedings, which in turn feed back into defendants avoiding plea deal proceedings. Plea deal proceedings are seen here as an endogenous variable of the whole justice system.[29]

3.2 Data

Let us now present data from the Italian judiciary, then we will provide comparative data with the US, UK and Germany.

First President of Italian Supreme High Court,[30] Pietro Curzio, provided data at the inauguration of the judicial year 2022[31]. We have data observations from the stock of pending cases on: (1) the end of the investigation phase of cases under investigation and (2) the ruling of trials that came to be defined in the solar year between July 1^st, 2020 and June 30^th, 2021.

Out of the pool of cases under investigation, a decision was made for 676,071 cases. Of these, the public prosecutors’ decision was ‘dismiss’ in 429,898 cases or 63.6 percent of the total[32]. The rest was sent to court for trial.
In that same year, 163,819 rulings on cases of “ordinary procedure” were delivered; of these, 54.8 percent were acquittals; 8.4 percent were mixed rulings; and 36.8 percent were convictions.[33]

Such empirical evidence leads us to formulate the following findings: in situation (2) cases sent to court were acquitted in over 50 percent of cases. Such considerations may lead us to formulate the hypothesis that public prosecutors do not take into account the “likelihood of conviction” in their decision-making.[34]

Situation (1) aggregate data lead us to think that public prosecutors file complaints to check and probe the evidence available prior to trial. Their decisions are not discriminating enough. This means public prosecutors are moving cases forward for the judges to check and probe the available evidence. Public prosecutors themselves appear to be following the popular adage: “Sue me,” in other words: “Let us hear what a judge has to say about this; I won’t take responsibility for dismissing this case.”[35]

Such empirical evidence is in accord with the above literature on pseudo-rational or self-serving organizational behavior of public administration whereby public managers pursue “ease of management” and minimize risk.

This essay illustrates how the comparative empirical data on conviction rates creates fertile ground for development of hypotheses regarding the impact of the administrative state on conviction rates. This essay is an element of comparative study of criminal justice systems. Therefore, in order for the reader to better relate to the subject of the essay, similar data are provided in the following for a very small selection of national justice systems: the US, the UK and Germany (this last, cited comparatively by Curzio).[36]

In the USA , “about 90 percent of the federal defendants and 75 percent of the defendants in the most populous counties were found guilty.”[37] Comparatively, “the conviction rate in England and Wales was 82.3 percent in magistrates courts and 79.1 percent in crown courts, as of the third quarter of 2021.”[38] Meanwhile, “[i]n 2020, the courts in Germany convicted approximately 699,300 [82 percent of the total] defendants by final judgment. The criminal proceedings against another roughly 153,300 [18 percent] people ended with court decisions other than convictions (for example, acquittal or dismissal of proceedings) in 2020.”[39] Statistics for the three countries examined are in accord with each other and are very distant from the statistics from Italy.[40]

4. Wider impact and possible remedies

If public managers do not take responsibility for action, that runs counter their function. Such finding undermines the very existence of bureaucracy and it shows the limits of the current organizational arrangements of public administration. It is proposed here that the root cause is to be traced in the monopolistic organizational arrangement of justice and the absence of mitigating factors of such monopoly. Factors mitigating monopolistic power can be identified as personnel rotation, virtual competition or evaluation and meritocracy among public managers. Identifying key processes and keeping track of statistics is a first step.

Specific remedies could include keeping statistics for each prosecutor. The only idea of keeping individual statistics may have an effect. Moreover, the evaluation and rewarding system of prosecutors could take such statistics into account.

With regard to remedies, it is worth mentioning that when the Minister of Justice, Marta Cartabia, in 2022 proposed an evaluation system for the Italian magistrates, the trade union of the magistrates objected that “could generate anxiety.”[41]

The proposed reform states that the judge for the preliminary hearing (GUP) should send to court only in the case of a “reasonable prognosis of conviction” (in Italian: “ragionevole previsione di condanna”). Simply making the statement, without any specific measuring action, does not appear to change the incentives for individuals in the process, therefore it will probably not change the outcome very much.[42]

Research limitations are due to managerial statistics of public administration being inherently domestic to one country. This is a rather general condition of comparative law. However, the specific instance examined in this essay – decisions by public prosecutors – possibly takes place in all countries. Therefore, it should be possible to replicate the analysis under any polity, democratic or other, and check if the dynamics are the same as in the case presented here.

The specificity of the empirical evidence provided here may induce doubt about the generalizability of the thesis of this article: the vertical partiality of public administration in general and the consequent inequality of the citizens vis-à-vis public administration. Public prosecutors however, are only an example of public managers not making decisions and passing cases forward for other authorities to make a decision. Evidence should be sought in the executive branch as well, where public managers would rather have a judge tell them what to do rather than taking responsibility for positive action. This is more difficult as management control systems and data transparency is far from reality. There lies the power of the evidence provided here that leverages the inherent quality of the judicial as a decision-making evaluation system.

5. Future studies

Future studies should endeavor to discover more about the hypothesis developed in this essay. Future studies should also point out data and examples of non-decisions in the executive branch. For instance, a “crisis of signatures” – i.e. not taking responsibility – was revealed in the Italian executive branch and the need for “commissioners” (in Italian: “commissari”) to get things done for the Recovery and Resilience Plan under the Next Generation EU program in Italy.

More in general on vertical partiality of public administration vis-à-vis the rest of society, one may notice that the extension of public-sector holdings (at market value in Japan, China, and other non-Asian non-advanced economies above 50 percent of total across the globe) shows the propensity of bureaucracies (and polities) to keep control of resources for themselves instead of letting civil society access those resources.[43]

This essay is also part of a wider project examining the implications of theories and findings of the sociology of organizations on the theory and practice of public law. Along these lines future studies look at the underlying social theory hypotheses of public law as guidance for public administration reform.

6. Conclusion

This essay has revealed a neglected dimension of inequality: the “vertical partiality” of public managers and public administration vis-à-vis the citizens and the polity. Members of the public administration pursue ease of management in discharging their tasks thus treating themselves with priority vis-à-vis the citizens and politicians. Such circumstance imposes unnecessary and high costs on the citizens and society. The example provided here shows public prosecutors as public managers move decisions forward and generate congestion in the judicial system. Such congestion impairs the crucial role of that system as a deterrent of crime vis-à-vis society. This essay warns that reform, without change in the micro-incentives of public managers, may fail.

† PhD London Metropolitan University.

[1] For a lexicon of public law and public administration, see generally Paolo D’Anselmi, Max Weber’s Ideal Type As A Behavioral Hypothesis In Public Law: The Lexicon Of Constitutions On Public Administration 2 Italian .J. of Public L. 448–476 (2021).

[2] The notion of vertical partiality is introduced in Paolo D’Anselmi Ideal Types and Behavioural Hypotheses: Public Law, Max Weber and the New Public Administration, 20 (2) Max Weber Studies 168, 181 (2020).

[3] Pietro Curzio, Relazione sull’amministrazione della giustizia nell’anno 2021, Corte Suprema di Cassazione, (Jan. 2022) at 296,

https://www.cortedicassazione.it/cassazione-resources/resources/cms/documents/Cassazione_Relazione_2022.pdf.

[4]5 USCS, Ethics in Government Act of 1978; 5 USCS, Inspector General Act of 1978 (establishing Offices of Inspector General in departments and other bureaus of the federal government with capability to initiate investigations). Also, Inspector General Reform Act of 2008 110 P.L. 409, 122 Stat. 4302.

[5] A.W. Bradley and K.D. Ewing, Constitutional & Administrative Law, 605 (14th ed. 2011) (The United Kingdom Civil Service Code declares that civil servants are expected to carry out their role “with dedication and commitment to the Civil Service and its core values: integrity, honesty, objectivity and impartiality.”).

[6]Art. 97 Costituzione [Cost.] (It.) (“Public offices are organized according to the provisions of law, so as to ensure the efficiency and impartiality of administration.”).

[7] An analogous circumstance is examined in Paolo D’Anselmi, The Privileged Working Conditions of Public Employees Sanctioned by Public Law: Adding One Dimension to Inequality Inequality Inquiry (2020), https://lawandinequality.org/2020/01/21/the-privileged-working-conditions-of-public-employees-sanctioned-by-public-law-adding-one-dimension-to-inequality/.

[8] See generally Paolo D’Anselmi, Can We Afford to Separate Politics from Administration: Designing Powers in the Service of Implementation, 5 Italian L.J. 471 (2019).

[9] William A. Niskanen, Non-Market Decision Making: The Peculiar Economics of Bureaucracy, 58 Am. Econ. Ass’n 293 – 294 (1968) (emphasis added).

[10] M. Friedman, The Methodology of Positive Economics’ in Essays In Positive Economics (1966) at 3–16, 30–43.

[11] Niskasen, supra note 9, at 294.

[12] See generally Oliver E. Williamson The New Institutional Economics: Taking Stock, Looking Ahead, 38 J. Econ. Literature 595 (2000).

[13] Bruce Ackerman, The New Separation of Powers, 113 Harv. L. Rev. 634, 689 (2000) (“Constitutionalists should, therefore, extend their thinking to embrace the distinctive structural problems involved in controlling the fourth branch of government: the bureaucracy. This is perfectly obvious to professors of administrative law, who bitterly resent the dominance of constitutional lawyers in the pecking order of legal academics.”).

[14] Id.

[15] M. Zamboni, The Positioning of the Supreme Courts in Sweden – A Democratic Oddity? 15 European Const. L. Rev. 668-690 (2019).

[16] UNODC, Public Prosecutors as the ‘gate keepers’ of criminal justice, UNODC (2020), https://www.unodc.org/e4j/en/crime-prevention-criminal-justice/module-14/key-issues/2–general-issues–public-prosecutors-as-the-gate-keepers-of-criminal-justice.html.

[17] Office of the United States Attorneys, Steps In The Federal Criminal Procedure, Dept. of J. (Nov. 9, 2022), https://www.justice.gov/usao/justice-101/steps-federal-criminal-process.

[18] European Justice, Defendants (criminal proceedings), European Justice (Aug. 30, 2019),

https://e-justice.europa.eu/169/EN/defendants_criminal_proceedings?GERMANY&action=printMS&member=1.

[19] Id.

[20] Office of the United States Attorneys, supra note 17.

[21] Id.

[22] Gov. UK, Criminal Procedure Rules and Practice Directions 2020, Gov.UK (Apr. 3, 2023),

https://www.gov.uk/guidance/rules-and-practice-directions-2020#criminal-court-procedure.

[23] European Justice, supra note 17.

[24] Id.; Curzio, supra note 3.

[25] Such comparative methodology is borrowed from F. Merloni Corruption and Public Administration: The Italian Case in a Comparative Perspective. Routledge (2019).

[26] Italian Code of Criminal Procedure, Book V, Title IX, Udienza Preliminare, art. 425].

[27] LEGGE 27 settembre 2021, n. 134 art. 1 par. 9 a), m) par 12, d).

[28] See generally, Stephen Holmes and Cass R. Sunstein The Cost of Rights Why Liberty depends on taxes (2000).

[29] European Commission, EU Justice Scoreboard 2021 (2021) n.17 (“In the context of the European Semester, the Council, on the Commission’s proposal, addressed country-specific recommendations relating to their justice system to seven Member States in 2019 (HR, IT, CY, HU, MT, PT and SK) and eight Member States in 2020 (HR, IT, CY, HU, MT, PL, PT and SK). Moreover, the Commission monitors judicial reforms in BG and RO under the Cooperation and Verification Mechanism.”).

[30] In Italian: “Corte Suprema di Cassazione,.”

[31] Curzio, supra note 3, at 56–61, Data were also publicized by the financial daily newspaper Il Sole 24 Ore, 9 February 2022, “Archiviazioni e assoluzioni, troppi processi penali a vuoto” (author’s translation: “Dismissals and acquittals: too many criminal trials end in a void”). Notice the innuendo in the title of the newspaper article: trials ending in acquittal are trials ending “in a void,” implying justice is when a conviction is issued, acquittal is “void” or non justice.

[32] Formally the decision is taken by judges for preliminary proceedings (in Italian acronyms: “GIP” or “GUP”), however such decision is taken on the bases of what public prosecutors ask for. Therefore, for sake of substantiality we propose here this is the public prosecutor’s decision.

[33] If we check the figures, notice that 429,898 and 163,819 add to 593,717, which is close to the 600,000 cases cited in the text. Notice that the 593,717 and the 600,000 are not the very same cases. The rulings in the same year were not the very same cases that were sent to court in that same year. The similar figures however do imply that the system is in a steady state over the years. However, we can consider and evaluate the decisions in one solar year (i.e. a time cross section) if we assume the stock of cases being a homogeneous one. In fact, we do assume the decision-making process is a Markovian process whereby a time cross section observation is equivalent to a time longitudinal observation.

[34] LEGGE 27 settembre 2021, n. 134 art. 1 par. 9 a), m) par 12, d). This law was dubbed as the “Cartabia Reform.” It was put in place by the Draghi Cabinet Minister of Justice Marta Cartabia.

[35] On the other hand, it should be noted that the high rate of acquittals (54.8 percent) shows a relative independence of judges vis-à-vis prosecutors, an element of quality in the social organization of justice.

[36] Curzio, supra note 3, at 296.

[37] P.B.S. Research the System, P.B.S. (2002),https://www.pbs.org/kqed/presumedguilty/3.2.1.html.

[38] D. Clark, Conviction rates for magistrates courts and crown courts in England and Wales from 2nd quarter 2013 to 3rd quarter 2022, Statista(2022), https://www.statista.com/statistics/1100769/conviction–rate-in-england-and-wales/#:~:text=The%20conviction%20rate%20in%20England,the%20third%20quarter%20of%202021.

[39] Destatis, Criminal prosecution by the courts in 2020: convictions by final judgment down 4% Destatis (2021) https://www.destatis.de/EN/Press/2021/12/PE21_592_24311.html;jsessionid=486977FB5BBA99CB0ED511590F09ACC5.live741 (providing data on the conviction rate for criminal prosecutions in Germany in 2020).

[40] Id.; P.B.S., supra note 37; Clark, supra note 38.

[41] Valentina Stella, ‘Pagelle ai magistrati, l’Anm non ci sta: «Mettono troppa ansia…»’ Il Dubbio (Mar. 2, 2022), (translation: Scoreboards for magistrates: the magistrates’ association disagrees: “Scoreboards would make us anxious”’), https://www.ildubbio.news/2022/03/01/pagelle-ai-magistrati-lanm-non-ci-sta-mettono-troppa-ansia/.

[42] LEGGE 27 settembre 2021, n. 134 art. 1 par. 9 a), m) par 12, d).

[43] The Economist, Many countries are seeing a revival of industrial policy, The Economist (Jan. 15,2022) at 4. This Economist special report illustrates that 20 percent of large firms are owned by the state, globally.

Are Infant Safe Haven Laws Fulfilling their Intended Purpose?

By jlieditors

By: Alexandra Schrader-Dobris*

In the wake of Dobbs v. Jackson Women’s Health Organization, infant safe haven laws are put to the test as more women give birth because of decreased abortion access.^[1] During the Dobbs oral argument Justice Barrett asked whether safe haven laws were sufficient alternatives to abortion.^[2] The laws allow parents to anonymously give up their children in designated areas such as fire stations or hospitals.^[3] Once the babies are dropped off, they are supposed to receive medical care and are provided for until they are placed in a permanent home.^[4] States enact the laws to prevent infant abandonment and infanticide.^[5] Women will not face legal charges for abandonment unless there are signs of abuse or neglect.^[6] Despite the legislative promise that the safe haven laws will increase child safety and legal compliance, the efficacy is suspect as the laws do not appear to protect mothers or their babies.^[7]

Risk to Mother’s Safety and Wellbeing

First, there is insufficient research to suggest that the laws serve their intended purpose: which is to decrease infanticide and increase the health and safety of pregnant mothers.^[8] Infanticide, the act of a parent killing a baby, is most common among very young women who are detached from their families, single, “emotionally immature” and in “denial,” about their pregnancies.^[9] Since safe haven laws emphasize anonymity, it is difficult for researchers to collect data on the demographics of those taking advantage of the laws.^[10] Therefore, the frightened teenage girl who planned to throw her baby in a dumpster is not necessarily more likely to follow a safe haven law.^[11] If the targeted group is not using the laws then the laws have severe limited utility.

Second, safe haven laws do not protect women during their pregnancy.^[12] Women who give up their children via these laws do not have access to healthcare during the pregnancy, nor do they receive mental health or domestic violence counseling, or financial support.^[13] Finally, under safe haven laws if the parent changes their mind, they often have a very short time frame to reconnect with the child they gave up.^[14] By contrast, pregnant women who go through the adoption process have to sign contracts and consent forms, providing them more opportunities to choose to keep their babies or have lifelong relationships with them via an open adoption. Legislatures design safe haven laws so that mothers can give up their children quickly and anonymously, which gives them less time to decide whether they want any more involvement in their children’s lives. For example, in California “A parent or person with lawful custody has up to 14 days from the time of surrender to reclaim their baby.”^[15] This reclamation time period contrasts sharply with the nine or more months a pregnant woman has to decide in the case of adoption.

Risk to Child Safety and Wellbeing

Children are also at a severe disadvantage under safe haven laws.^[16] Unlike the traditional adoption process, new parents are much more likely not to know anything about their baby’s medical history which makes it more difficult for parents to provide adequate healthcare for their children.^[17] Although it is sometimes optional, many states do not require the parent giving up a child to provide family and medical history information.^[18] This lack of knowledge is of particular consequence for new parents because abandoned babies are especially at risk to have medical complications in their first year of life.^[19] Moreover, most abandoned children will not know their racial or ethnic origins and thus they will miss a potentially significant piece of their identity.^[20] In addition, children given up through safe haven laws are more likely to spend extended time in the foster care system than children who are adopted.^[21] While planning for permanent child placement begins during pregnancy for a woman who intends to use adoption services, in abandonment cases planning for placement does not occur until the child is born.^[22]

Baby Boxes

Baby boxes are the newest controversial addition to the safe haven laws.^[23] Boxes can be found in designated safe haven sites that allow for anonymous drop off.^[24] The box locks after a person places the baby inside.^[25] The boxes have padding and controlled temperature settings.^[26] Once the baby is inside the box, within a span of 30 seconds a silent alarm will trigger, notifying staff at the facility.^[27] Indiana was the first state to install baby boxes in 2016.^[28] The boxes are designed so that the increased anonymity encourages women who are planning to give up their children to do so legally. However, this factor also makes it even more difficult for pregnant women to change their minds or at least consider connecting with their children later in life. Without interacting with a hospital worker or firefighter, there is no chance for medical personnel to assess the mother’s mental or psychological health or assure her that her baby is in safe hands. Although those practices might not happen during a person to person handoff, the baby box completely eliminates that possibility.

Furthermore, baby boxes are expensive and require regular maintenance.^[29] The boxes initially cost anywhere between $10,000 to $16,000 in addition to yearly maintenance and inspection fees.^[30] Although data is sparse and inconsistent, according to one source, as of April 11, 2023, 145 boxes have been installed since their inception in 2016,^[31] 105 of which were in Indiana.^[32] As of September 28, 2023, 37 babies across the nation were given up in the boxes.^[33] Is that enough use to justify the cost? Even though the baby boxes are outfitted with video cameras, there has been debate concerning the interpretation of some safe haven laws about whether the laws require a person to constantly monitor the box.^[34] Monitoring the boxes adds an extra responsibility to fire and police stations who may not have employees to spare for this important duty.^[35]

Other people express ethical concerns, worrying that putting a baby in a box is immoral and unsafe.^[36] The maker of the baby boxes claims her company did safety tests, however, the boxes are not currently FDA approved and she has not publicly disclosed her research methods.^[37]

Conclusion

Although some studies show that safe haven laws increase the number of legal abandonments, under the laws in several states infants cannot be surrendered unless they are 72 hours old or younger.^[38] Thus, the data does not account for the number of babies given up outside that age range. A Texas survey found that from 1996-2006 babies were legally abandoned at the same rate as they were illegally.^[39] Even though this study indicates that the safe haven laws are ineffective, the lack of up to date standardized reporting on a national scale and the anonymous nature of abandonment makes data collection difficult.^[40] It is nearly impossible to determine how many infants’ lives would have been saved without the safe haven laws.^[41] Instead of decreasing child abandonment, safe haven laws may have the unintended consequence of decreasing the number of adoptions, which are safer and healthier for the mother and child.^[42] Whether people lack knowledge of safe haven laws or do not take advantage of the laws because they fail to satisfy their needs, something must be done. Proponents of safe haven laws may argue that saving one life is better than saving none,^[43] however, this is a low standard for mother and child safety. Legislators should do more research to better meet the reproductive health concerns of our nation and end reckless child abandonment.

*Alexandra Schrader-Dobris is a Note and Comment Editor for JLI Vol. 42.

[1] Melissa Jeltsen, We Are Not Prepared for the Coming Surge of Babies, The Atlantic, Dec. 16, 2022, https://www.theatlantic.com/family/archive/2022/12/abortion-post-roe-rise-in-births-baby-care/672479/.

[2] Patti Waldmeir, Turmoil over US abortions turns spotlight on safe havens for newborns,

Financial Times, Aug. 7, 2023, https://www.ft.com/content/9d561590-f410-4ee5-a02e-d509c9950a90.

[3] Id.

[4] Id.

[5] Child Welfare Information Gateway, Infant Safe Haven Laws: Summary of State Laws, July 2007, at 1, https://www.childwelfare.gov/pubPDFs/safehaven.pdf [https://perma.cc/A4EW-EGPZ].

[6] Id.

[7] Elizabeth Tobin-Tyler, Putting Your Money Where Your Mouth Is: Maternal Health Policy after Dobbs, 53 Seton HALL L. REV. 1577, 1590 (2023).

[8] Jennifer R. Racine, A Dangerous Place for Society And Its Troubled Young Women: A Call For An End To Newborn Safe Haven Laws In Wisconsin And Beyond, 20 Wis. Women’s L.J., 243, 258 (2005).

[9] Id.

[10] Id.

[11] Susan Ayres, Kairos and Safe Havens: The Timing and Calamity of Unwanted Birth, 15 Wm. & Mary J. Women & L., 227, 234 (2009), https://scholarship.law.wm.edu/wmjowl/vol15/iss2/2.

[12] Naomi Cahn & June Carbone, The Blue Family Constitution, 35 J. AM. ACAD. MATRIMONIAL LAW. 505 (2023).

[13] Racine, supra note 8.

[14] California Department of Social Services, Safely Surrendered Baby Program, (2023) https://www.cdss.ca.gov/safe-surrender-baby#:~:text=Under%20the%20Safely%20Surrendered%20Baby,within%2072%20hours%20of%20birth.

[15] Id.

[16] Orliss M, Rogers K, Rao S, Deavenport-Saman A, Imagawa KK, Roberts S, Rafeedie J, Hudson SM., Safely surrendered infants in Los Angeles County: A medically vulnerable population, 45 Child Care Health Dev. 861 (July 19, 2019).

[17] Micah Orliss, Adoptive parents often in the dark about care for ‘safe haven’ kids, (July 20, 2022) https://www.statnews.com/2022/07/20/adoptive-parents-in-the-dark-care-safe-haven-children/.

[18] Child Welfare Information Gateway, Infant Safe Haven Laws, Sept. 2021, at 3, https://www.childwelfare.gov/pubpdfs/safehaven.pdf.

[19] Orliss, supra note 16.

[20] Carol Sanger, Infant Safe Haven Laws: Legislating in the Culture of Life, 106 COLUM. L. REV. 753, 791 (2006).

[21] Mary Wiltenburg, Safe Haven, Christian Sci. Monitor, July 24, 2003, at 14.

[22] Id.

[23] Child Welfare, supra note 18.

[24] STOP BABY BOXES NOW!, FAQ: Safe Haven Movement, Baby Boxes, and Laws,

https://stopshbbnow.org/faqs/frequently-asked-questions-safe-haven-baby-boxes-laws/.

[25] Id.

[26] Lizzie Widdicombe, The Baby-Box Lady of America, The New Yorker, (Dec. 18, 2021) https://www.newyorker.com/news/news-desk/the-baby-box-lady-of-america.

[27] Id.

[28] Kolby Brock, “A Study of Safe Haven Baby Laws in the United States: One Life Saved or Too Many Unknowns to Evaluate?” Honors Projects 3, 20 (2023), https://digitalcommons.owu.edu/honors/6.

[29] Lizzie Widdicombe, The Baby-Box Lady of America, The New Yorker, (Dec. 18, 2021) https://www.newyorker.com/news/news-desk/the-baby-box-lady-of-america.; Taylor Hernandez, Legislative battle over ‘baby boxes’ in Florida, WPBF,

(Apr. 12, 2023), https://www.wpbf.com/article/baby-boxes-florida-politics/43581502.

[30] Taylor Hernandez, Legislative battle over ‘baby boxes’ in Florida.

[31] Terry Spencer, Florida Fight over ‘baby boxes’ part of bigger culture war, AP News,

(Apr. 11, 2023), https://apnews.com/article/baby-boxes-florida-7a6dd3598f9c8a37be5c913572abdd62.

[32] STOP BABY BOXES NOW!, supra note 24.

[33] Id.

[34] Daniel Griffin, Central Ohio’s safe haven ‘baby box’ closed, NBC, (Jan. 9, 2023).

https://www.nbc4i.com/news/local-news/sunbury/central-ohios-only-safe-haven-baby-box-removed/.

[35] Id.

[36] Spencer, supra note 31.

[37] Alyssa Ivanson, DCS director: Baby box lawsuit a possibility, Nexstar Media Group, Inc., (July 15, 2016).https://www.wane.com/news/dcs-director-baby-box-lawsuit-a-possibility/#:~:text=(WANE)%20%E2%80%93%20In%20letters%20to,may%20be%20the%20next%20step; Brian Bouchard, UMFK Student Aims to Bring Safe Haven Boxes to Aroostook County, WAGM-TV, (Jan. 5, 2023), https://www.wagmtv.com/2023/01/05/umfk-student-aims-bring-safe-haven-boxes-aroostook-county/.

[38] Lark Lewis, Safe Haven Laws, Find Law, (Aug. 31, 2023), https://www.findlaw.com/family/adoption/safe-haven-laws.html.

[39] Sandi L. Pruitt, The Number of Illegally Abandoned and Legally Surrendered Newborns in the State of Texas, Estimated From News Stories, 1996-2006, 13 Child Maltreatment 89 (Feb. 2008).

[40] Kolby, supra note 28 at 15–18.

[41] Id.

[42] Evan B. Donaldson Adoption Inst., Unintended Consequences: ‘Safe Haven’ Laws are Causing Problems, Not Solving Them 2-3 (2003).

[43] Debbe Magnusen, From Dumpster to Delivery Room: Does Legalizing Baby Abandonment Really Solve the Problem?, 22 J. Juv. L. 1, 10 (2001–02).

Right to Spiritual Advisors During Executions: Missouri’s Latest Refusal and the Supreme Court’s Evolving Jurisprudence

By jlieditors

By: Britane Hubbard

On Tuesday, February 7th, 2023, Missouri executed Leonard “Raheem” Taylor, despite serious questions raised regarding his innocence^[1] and without his spiritual advisor The Missouri Department of Corrections (MDOC) denied Taylor’s request, made the day before his execution, to have his spiritual advisor present in the execution chamber to pray with him.^[3] On that same day, MDOC shared that its alleged reasons for the spiritual advisor denial was because (1) Taylor previously waived his right to have witnesses present; thus he was too late in asking and (2) MDOC was “unable to reasonably accommodate this request due to institutional security concerns related to changing the protocol at this late hour.” ^[4]

Understandably, requiring Taylor to be strapped down and executed alone, without the presence of his requested spiritual advisor, outraged many such as the Missouri NAACP and Taylor’s spiritual advisor Anthony Shahid.^[5] Mr. Shahid, who Taylor’s attorney said was already approved to visit Taylor at another facility, questioned whether his exclusion from the execution was related to Taylor being a Black man and a Muslim, and a violation of Taylor’s “civil and religious rights.” ^[6]

Did the exclusion of Taylor’s spiritual advisor break the law? The answer lies within both the Prison Litigation Reform Act (PLRA)^[7] and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA).^[8]

Under RLUIPA, the Supreme Court has held that States must allow spiritual advisors to be present in the execution But, first, a prisoner seeking relief under RLUIPA must have satisfied the requirements of the Prison Litigation Reform Act (PLRA).^[10] “PLRA requires incarcerated individuals to exhaust the prison’s administrative grievance process before turning to the courts. . .” Thus, whether the exclusion of Taylor’s spiritual advisor broke the law depends first on his exhaustion of MDOC’S grievance procedures. MDOC “utilizes a three-step procedure for its administrative remedy system for prisoners: an Information Resolution Request (“IRR”), a Grievance, and a Grievance Appeal.”^[11] Requirements for all three steps must be followed by the prisoner to be “considered under [PLRA].”^[12]

However, complicating the grievance procedure process is the unique circumstances that a scheduled execution date imposes on time constraints.^[13] Missouri Revised Statute §546.740 and MDOC’s Department Procedure Manual provides that an offender may have at their execution “clergy or religious members” as witnesses. MDOC’s Manual further specifies that the “offender shall request his/her execution witnesses at least two weeks prior to the scheduled execution date.” ^[14] What is unclear in Mr. Taylor’s case is whether he had an opportunity to trigger MDOC’s grievance procedure after he was informed his spiritual advisor would be excluded from the execution chamber the day before his execution, or whether a prisoner’s right to file a grievance in the execution context is extinguished at the arbitrarily set date to request in the prison’s policy.

The Supreme Court’s jurisprudence around spiritual advisors is still evolving.^[15] In its most recent case Justice Sotomayor wrote a concurrence to clarify PLRA’s role in cases like Taylor’s. Notably, she emphasized that although “incarcerated individuals still bear the burden of timely raising execution-related claims, prisons still must ensure that administrative remedies are available, which may require modifying procedures to account for the time constraints of a scheduled execution.”^[16] Justice Sotamoyor further clarified that “[w]here an administrative process does not facilitate addressing execution-related claims within the timeframe of a scheduled execution, it is likely not an “available” remedy that must be exhausted under the PLRA.”^[17] This raises a question as to whether Missouri’s two-week requirement to make the request would even be enough time to exhaust MDOC’s grievance procedures and then properly

What constitutes “timely” has differed in other Supreme Court cases involving spiritual advisors. In Dunn v. Ray the court “permitted Alabama to execute a Muslim man. . .after the state refused to allow [him] to have an Imam at his side in the execution chamber, the state at that time allowed a Christian chaplain in the chamber.” ^[18] The Court stated this decision was made “[b]ecause Ray waited until [10 days before execution] to seek relief.” ^[19] Later, in Ramirez v. Collier the court found the petitioner’s grievance filed three days after learning of the prohibition of his spiritual advisor’s touch was timely filed.^[20] Though, the petitioner’s grievance in Collier was still filed months before his scheduled execution date.^[21]

Consequently, Taylor’s request, made only a day before the execution, may have been deemed untimely. Sotomayor addressed this timeliness concern in her concurrence with Collier, stating that “incarcerated individuals should know that delays in raising their requests can result in denial.”^[22] But given the unique circumstances surrounding executions, consideration should be given to whether the deadlines being imposed by prisons on inmates to have a spiritual advisor present at their executions are themselves a substantial burden on their religious exercise in violation of RLUIPA. In Taylor’s case, the warden refused to allow his Iman to be present at the execution, yet allowed a special visit earlier in the day–raising questions about MDOC’s policy arbitrarily burdening religious exercise.^[23] Given that the Court’s jurisprudence in this area is evolving and that it has taken up a spiritual advisor case each session for the last four years^[24], it is possible that a case similar to Taylor’s could clarify the timeliness requirements and their effect on an incarcerated person’s “interest in religious exercise”

^[1] Innocence Project Statement on the Execution of Leonard ‘Raheem’ Taylor, Innocence Project (Feb. 7, 2023), https://innocenceproject.org/innocence-project-statement-on-the-execution-of-leonard-raheem-taylor/.

^[2] Kim Bell, Lawyers for Leonard Taylor Say Missouri Executed Him Before His Appeals Ran Out (Feb. 9, 2023), https://www.stltoday.com/news/local/crime-and-courts/lawyers-for-leonard-taylor-say-missouri-executed-him-before-his-appeals-ran-out/article_0903e0aa-9873-5c09-b3c7-3289e039fa4b.html.

^[3] Id.

^[4] Katie Moore & Luke Nozicka, Leonard Taylor Not Allowed Spiritual Advisor at Execution. Warden Says He Asked Too Late (Feb. 7, 2023), https://www.aol.com/news/leonard-taylor-not-allowed-spiritual-173055064.html.

^[5] Id.

^[6] Id.

^[7] Prison Litigation Reform Act of 1995 (PLRA), 42 U. S. C. §1997e(a).

^[8] 42 U.S.C. §2000cc-1(a).

^[9] See Gutierrez v. Saenz, 141 S. Ct. 127, 128 (2020) (granting a stay of execution and thereafter requiring the district court to determine “whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prison wishes to have in his immediate presence.”), Dunn v. Smith, 141 S. Ct. 725 (2021) (Kagan, J., concurring) (denying application to vacate injunction barring Alabama from executing an inmate without his “pastor by his side”), and Ramirez v. Collier, 142 S. Ct. 1264, 1284 (2022) (finding that under RLIUPA a spiritual advisor may be allowed into the execution chamber and engage in audible prayer and religious touch).

^[10] PLRA, supra note 7.

^[11] Hinson v. Missouri E. Corr. Ctr., No. 4:22-CV-785 NAB, 2022 WL 4378833 at 11 (E.D. Mo. Sept. 22, 2022).

^[12] Id.; see also Woodford v. Ngo, 548 U.S. 81, 85 (2006) (“Exhaustion of available administrative remedies is required for any suit challenging prison conditions, not just for suits under § 1983.”).

^[13] Collier, 142 S. Ct. at 1284 (Sotomayor, J., concurring).

^[14] Missouri Department of Corrections Changes Policy for Witnessing Executions, ACLU (Nov. 27, 2018), https://www.aclu-mo.org/en/news/missouri-department-corrections-changes-policy-witnessing-executions

(chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.aclu-mo.org/sites/default/files/witness_invitation_policy.pdf)

^[15] See Dunn v. Ray, 139 S. Ct. 661 (2019), Gutierrez v. Saenz, 141 S. Ct. 127 (2020), Dunn v. Smith, 141 S. Ct. 725 (2021), Ramirez v. Collier, 142 S. Ct. 1264 (2022).

^[16] Collier, 142 S. Ct. at 1284 (Sotomayor, J., concurring).

^[17] Id. at 1285.

^[18] Dunn v. Ray, 139 S. Ct. 661 (2019). Amy Howe, Court to Clarify the Right of Death-Row Inmates to Receive Spritiual Guidance During Execution, SCOTUSblog (Nov. 8, 2021, 12:59 PM), https://www.scotusblog.com/2021/11/court-to-clarify-the-right-of-death-row-inmates-to-receive-spiritual-guidance-during-execution/ (citing Dunn, 139 S. Ct. 661 (2019)).

^[19] Dunn, 139 S. Ct. 661 (2019) (a 5-4 decision highlighting the disagreement of the Court around spiritual advisors).

^[20] Collier, 142 S. Ct. at 1276–77.

^[21] Id.

^[22] Id. at 1285 (Sotomayor, J., concurring).

^[23] See Katie Moore & Luke Nozicka, supra note 4.

^[24] See cases cited supra note 15.

^[25] Collier, 142 S. Ct. at 1283.

Birthright Citizenship: An Unqualified Right?

By jlieditors

By: Elise Skarda*

The concept of birthright citizenship has been mentioned in the news frequently recently. Many conservative presidential candidates are calling for an end to birthright citizenship,[1] though it is an unqualified constitutional right. So what is birthright citizenship, where does it come from, and why is it unconstitutional to qualify it?

Birthright citizenship is the guarantee that all persons born in the United States and under the jurisdiction of the United States are U.S. citizens.[2] ACLU. The concept of birthright citizenship arises from the Fourteenth Amendment § 1.

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Fourteenth Amendment.

The crucial phrase is located in the first sentence: “all persons born or naturalized in the United States, … are citizens of the United States.” Id.

The Fourteenth Amendment was adopted in 1868, as part of a series of three amendments, known as the Reconstruction Amendments. The purpose of the Reconstruction Amendments was to free enslaved people under the Constitution (Thirteenth Amendment, with qualifications), guarantee certain constitutional protections to recently freed men (Fourteenth Amendment), and give newly freed African American men the right to vote (Fifteenth Amendment). Students of History.

The Fourteenth Amendment was necessary because of the infamous case Dred Scott v. Sandford (1857), also known as Dred Scott. Dred Scott held that descendants of African people who were forced to come to the U.S. and were enslaved could not be citizens of the United States, whether those individuals were enslaved or free. Scott v. Sandford. It did not matter whether that individual was born on U.S. soil or not; ancestry was the deciding factor. Id. Due to the Dred Scott ruling, after slavery was abolished, freedmen did not have a path to U.S. citizenship. Id.

A few years later in 1898, the Supreme Court directly addressed whether children born on U.S. soil to non-citizen parents are U.S. citizens in United States v. Wong Kim Ark. United States v. Wong Kim Ark. Wong Kim Ark was born in California to Chinese parents, who had no path to citizenship. Id. The U.S. government argued that he was not a U.S. citizen under the Chinese Exclusion Act because his parents were not, and could not become, citizens. Id. Contrary to the Act, the Court held that under the Fourteenth Amendment, Ark was a U.S. citizen because he was born on U.S. soil. Id. Additionally, the Court held that the Fourteenth Amendment has not conferred any “authority upon [C]ongress to restrict the effect of birth, declared by the [C]onstitution to constitute a sufficient and complete right to citizenship.” Id. at 114.

Case law and the Constitution itself make it clear that neither an Act of Congress nor a Presidential order can repeal birthright citizenship. Wong Kim Ark, U.S. Cons. Art. V. The only way to do away with birthright citizenship in any form is a constitutional amendment. Regardless of the proposed measure to qualify birthright citizenship, however, the underlying racial animus is clear.

Ever since before Dred Scott, ending birthright citizenship has been an attack on racial and ethnic minorities. Dred Scott was an African American man; Wong Kim Ark was an American citizen born to Chinese parents. Scott v. Sandford, U.S. v. Wong Kim Ark. Native Americans also struggled to obtain U.S. citizenship, birthright or otherwise.[3] The Supreme Court so much as explicitly stated in Wong Kim Ark that “[t]o hold that the [F]ourteenth [A]mendment of the [C]onstitution excludes from citizenship the children born in the United States of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.” Wong Kim Ark at 694. Though modern-day calls for an end to birthright citizenship use less explicit language, the racially motivated intent remains.[4]

An end to birthright citizenship through a presidential order or act of Congress would be both unconstitutional and harken back to the days of slavery, when Dred Scott, a free man born in the United States, was denied U.S. citizenship on the basis of the color of his skin.

[1] Candidates include Vivek Ramaswamy who stated, “I want to be very clear about this. I think that birthright citizenship does not and should not apply to the kids of parents who entered this country illegally.” NBC News. Former President Donald Trump said in a video posted to Forbes’ YouTube Channel that, if elected, he would sign an executive order, ensuring that the children of undocumented migrants “will not receive automatic US citizenship.” The Guardian, YouTube. In a list of immigration objectives, Ron DeSantis declared that he would “take action to end the idea that the children of illegal aliens are entitled to birthright citizenship if they are born in the United States.” ABC News.

[2] Please note, there are only two exceptions to birthright citizenship. The first is children born on U.S. soil to foreign diplomats who are non-U.S. nationals. USCIS. This is because diplomats are not formally “under the jurisdiction” of the United States and enjoy certain international immunities. Id. There is also an exception for children born to hostile forces on U.S. soil, which has remained largely inapplicable. National Public Radio.

[3] See, for e.g., Standing Bear v. Crook (1879).

[4] The current discussion uses coded language. “Children of illegal aliens,” says Ron DeSantis. ABC News. “[T]he kid of illegal immigrants and the families who came here undocumented have to be returned to their country of origin,” says Vivek Ramaswamy. NBC News. Ending birthright citizenship would “choke off a major incentive for continued illegal immigration, deter more migrants from coming and encourage many of the aliens Joe Biden has unlawfully let into our country to go,” says Donald Trump. The Guardian. The vague language leaves any potential racial animus open to interpretation, but even a heavily conservative blog published an article in 2010 entitled, “Ending Birthright Citizenship Will Make Republicans Look Like The Party Of Dred Scott.” The Federalist.

* Elise Skarda is an Online Editor for JLI Volume 42.

The Texas Crown Act Policy Woes: Facially Neutral Grooming and Appearance Policies of Texas School Districts

By jlieditors

By Alejandrea Brown*

The Crown Act, also known as House Bill No. 567, was introduced by Democratic Representative Rhetta Bowers of Rowlett, Texas. [1] House Bill No. 567 relates to discrimination based on protective hairstyling associated with race and also on the basis of hair texture. [2] Section 25.902 of the bill specifies “protective styling” to include, locs, twists, and braids. [3] Lastly, subsection B of 25.902 states “any student dress or grooming policy adopted by a school district, including a student dress or grooming policy for any extracurricular activity, may not discriminate against a hair texture or protective hairstyle commonly or historically associated with race.” [4] Texas Governor Greg Abbot signed the Crown Act into law on May 27, 2023, making Texas the 22nd state in America with this legislation. [5] The Texas Crown Act became effective in Texas on September 1, 2023, prohibiting race-based hair discrimination in Texas schools, workplaces, and housing policies. [6] Despite passing the Texas Crown Act, Governor Greg Abbott and Texas Attorney General Ken Paxton face a civil rights suit for failing to enforce the Act. [7]

Darryl George, a 17-year-old high school junior who wears locs in his hair, faced multiple suspensions at Barbers Hill High School in Mont Belvieu, Texas, a forty-minute drive from Houston, Texas. [8] George was suspended for more than three weeks because his locs violated the Barber Hill Independent School District dress and grooming code. [9] Specifically, the dress code does not ban students from wearing braids or locs. It does however, place limitations on how long a male student’s hair can be. [10] The Barber Hill Independent School District dress and grooming code states that hair shall not extend at any time below the eyebrows or the ear lobes. [11]

George received warnings from the school district that he had to cut his hair. [12] He refused and received an in-school suspension. [13] George was suspended before went into statewide effect on September 1, 2023. [14] George’s suspension consisted of sitting in a cubicle on a stool for eight hours a day. [15] The George family filed a lawsuit in the Texas Southern District Court and alleged that the suspension violates the Texas Crown Act. [16] The George family seeks an injunction and temporary restraining order against Governor Greg Abbott and Texas Attorney General Ken Paxton to compel them to prohibit the Barber Hill Independent School District from exposing students to disciplinary measures and punishment due to braids, locs, twists, and other protective hairstyles that are or alleged to be longer than the District’s length requirement. [17]

Legal strategists continue to advocate and address the Crown Act’s shortcomings locally and nationally. [18] Historically, efforts to create a federal Crown Act have stalled at the Senate level. [19] The Texas Crown Act does not specify gendered nuances of ethnic hair discrimination, as the Act often explicitly references hairstyles and textures, not hair length. [20] Legal coalitions have identified how dress code and appearance policies may often appear to be racially neutral; however, these same policies may also have a disproportionately negative impact on Black hairstyles and textures. [21]

Overall, the movement for the Crown Act has emphasized texture and hairstyle discrimination against Black women and girls. [22] What is notable in George’s case is that this is the first challenge for the Texas Crown Act to center on Black men and hair length. [23] As emphasized through George’s story, he has faced disciplinary action and suspension, impacting his education. Notably, a Yale study found that Black boys are more likely to be disciplined harshly than White boys. [24] This is relevant because Black men and boys should not have to choose between their hair and attending to their much-needed education. [25] Again, it is more likely for Black students to be suspended for discretionary reasons, like having long hair or other dress code violations which, are not predictive of student success. [26] The State of Texas has made great strides by passing the Crown Act. However, it is unknown how the Texas legislature and court systems will handle this newly passed bill.

[1] Alejandro Serrano, Abbott signs into law CROWN Act banning race-based hair discrimination, https://www.texastribune.org/2023/05/29/texas-crown-act-law/.

[2] H.B. No. 392, https://capitol.texas.gov/tlodocs/87R/billtext/pdf/HB00392I.pdf.

[3] Id.

[4] Id.

[5] Serrano supra note 1.

[6] Id.

[7] Chandelis Duster, A legal battle in Texas over a Black student’s hairstyle has renewed calls for a national CROWN Act. Here is what that means, https://www.cnn.com/2023/09/26/us/crown-act-explained-texas/index.html.

[8] Jonathan Franklin, A Black Texas Student Sues After He Was Suspended Over His Hairstyle, https://www.npr.org/2023/09/22/1200374764/crown-act-texas-hairstyles-law-nationwide.

[9] Id.

[10] Id.

[11] Id.

[12] Karen Attiah, Let Black Boys Grow Their Hair, https://www.washingtonpost.com/opinions/2023/09/29/texas-crown-act-darryl-george/.

[13] Id.

[14] Id.

[15] Franklin supra note 2.

[16] Id.

[17] Id.

[18] Attiah supra note 3 (explaining how Adjoa B. Asamoah, legal strategist and co-creator of the Crown Coalition, expresses that Darryl George’s case and others like it demonstrate why the Crown Act needs to become federal law).

[19] Id.

[20] Id.

[21] Legal Defense Fund, Natural Hair Discrimination, https://www.naacpldf.org/natural-hair-discrimination/.

[22] Attiah supra note 3.

[23] Id.

[24] Molly Ingram, Yale Study Shows Black Boys are More Likely to be Disciplined Than Their White Classmates, https://www.ctpublic.org/news/2023-01-26/yale-study-shows-black-boys-are-more-likely-to-be-disciplined-than-their-white-classmates (explaining how the study found that Black boys are more likely to be removed from their learning environment because of disciplinary action in comparison to White boys).

[25] Legal Defense Fund supra note 4 (explaining how some school districts have banned specific Black hairstyles, preventing students from attending school or school events).

[26] Id. (explaining how research from Princeton University found that explicit bias was consistently associated with more considerable racial disparities in school discipline).

* Alejandrea Brown is the Lead Online Editor for JLI Vol. 42.

The Criminalization of Pregnancy: Etowah County, Alabama Should Raise Alarms for Women

By jlieditors

By: Diana Kawka*

In Etowah County, Alabama, being pregnant places women at risk of severe punishment for what would otherwise be minor offenses, receiving wildly disparate treatment than their male counterparts.[2] Alabama leads the nation in pregnancy criminalization, with Etowah County disproportionately seeking to imprison and prosecute mothers and pregnant women.[3] Pregnancy criminalization is defined as when a person is arrested for “reasons related to their pregnancy, or where the terms of their bail, sentencing, or probation are heightened because they became pregnant after being charged with an unrelated crime.”[4] Under Alabama’s chemical endangerment statute, a defendant who exposes a child, including unborn fetuses, to an environment in which controlled substances are produced or distributed can be charged with a felony. [5] This statute should apply to men and women with equal force, but in Etowah County, 93% of arrests under this statute are women.[6] Women are charged at a rate 12 times higher than men.[7] This practice precedes the Dobbs decision,[8] but the scrutiny around state abortion laws has brought attention to this county’s treatment of pregnant women. While supporters of Alabama’s laws may make claims about protecting fetuses, the way the state weaponizes the chemical endangerment statute and treats incarcerated pregnant women tells an entirely different story.

In March 2021, Ashley Caswell was arrested by Etowah County sheriffs after she tested positive for methamphetamine while two months pregnant.[9] She was charged under the chemical endangerment statute and will serve 15 years in state prison.[10] Despite having a high-risk pregnancy, Caswell received little healthcare while incarcerated at the Etowah County detention center.[11] Etowah County personnel refused to give Caswell regular prenatal check-ups, required her to sleep on the floor of her cell for the duration of her pregnancy against medical advice, and eventually forced her to give birth on the floor of the jail shower without medical assistance.[12] When Caswell went into labor, she was left alone in a cell in the medical unit.[13] She began to bleed and vomit for close to 12 hours.[14] Even though Caswell had been in labor all day, medical personnel told her she “better not have that baby” until Monday, two days away.[15] Caswell was taken to wash her blood off in the shower, which is where she finally gave birth.[16] After, correctional officers passed Caswell’s baby between them while he was still connected to her via the umbilical cord.[17] The correctional officers took a photo of her while she laid naked on the shower floor.[18] Emergency personnel transported Caswell to the hospital where she was diagnosed with placental abruption and hospitalized for several days.[19] The “care” Etowah County provided to Caswell endangered both her life and that of her child.

Ashley Caswell’s story is not an outlier in Etowah County; in Caswell’s complaint against Etowah County, she lists at least three other women who received similar treatment while pregnant.[20] In one case, like with Caswell, jail personnel refused to take a pregnant woman with a high-risk pregnancy to the hospital when her water broke.[21] This resulted in her hemorrhaging a life-threatening amount of blood and killed her child.[22]

In another instance, Etowah County police arrested Ashley Banks when they found marijuana in her car.[23] She had only become aware she was six weeks pregnant the day she was arrested.[24] Banks smoked marijuana two days prior.[25] It was this admission that led to her being charged with chemical endangerment.[26] The court denied Banks bail because she was a pregnant woman arrested for chemical endangerment and was only allowed to leave custody if she went to a residential drug rehab program.[27] Banks was not allowed to enter any drug rehab program because the substance abuse agency responsible for her placement would not classify her as a drug addict, only a casual marijuana user.[28] Instead, Banks remained in the Etowah county detention center for three months before the court granted her release.[29] While there, Banks experienced pregnancy complications that hospitalized her twice.[30]

In Etowah County, all women are potentially at risk; the suspicion that a woman could be pregnant is reason enough to incarcerate and humiliate them.[31] Etowah County arrested Stacey Freeman on charges of chemical endangerment for allegedly using drugs while pregnant.[32] Freeman was not pregnant at the time of the allegation or the arrest.[33] First confronted with the allegation after Freeman’s child mistakenly told a DHS worker that Freeman was pregnant, Freeman denied it, offered to take a pregnancy test and was refused the opportunity.[34] Etowah County arrested Freeman on the sworn testimony of an Etowah County Sheriff’s department investigator, Brandi Fuller, who stated Freeman was pregnant and using drugs.[35] Freeman was menstruating while incarcerated and still, jail officials refused her a pregnancy test or any menstrual products for days.[36] After Freeman’s pregnancy test showed she was not pregnant, the investigator, Fuller, threatened Freeman that she would be arrested if she became pregnant and instructed her to use a condom.[37]

Notably, Brandi Fuller— the investigator who provided the sworn testimony to arrest Freeman that was later proven false— has led the charge in criminalizing pregnancy in Etowah County.[38] In at least one other case, Fuller made false statements to media sources about a woman who was charged under the chemical endangerment statute.[39] Fuller is involved in almost all of Etowah County’s chemical endangerment cases and specifically those against pregnant women.[40] From 2013 to July 2023, Etowah County has arrested 257 pregnant women.[41] Fuller was the arresting officer or a key witness on 222 of those cases.[42] In 2020, Etowah County Sheriff’s Office awarded Fuller “Investigator of the Year” for her work.[43]

There are many more stories like this in Etowah County.[44] Women are more intensely scrutinized than men, more heavily prosecuted than men, and once imprisoned, subject to humiliation and danger that men would never be.[45] Women are threatened and controlled by the state in a way that men are not by the mere fact that they are or could become pregnant. Claims about protecting fetuses are pretextual at best. If Etowah County cared about protecting life, what happened to Ashley Caswell, the women in her complaint, Ashley Banks, or Stacey Freeman would never have occurred. Instead of receiving care for their health or that of their fetus, these women are dehumanized and abused. The criminalization of pregnancy endangers the lives of women, fetuses, and newly born infants.[46] While Etowah County is the worst offender in America,[47] what is happening in Alabama illustrates a growing problem of states criminalizing pregnancy.[48] As pregnancy criminalization increases, more women face preventable threats to their health and safety.[49]

Diana Kawka is a staffer for JLI Vol. 42.*

[1] This post uses the term “women” because generally, in Etowah County cisgender women have been the target of prosecution and their presentation as women is relevant to the disparate treatment they suffer. But pregnancy criminalization threatens the health and safety of anyone who can become pregnant. Other factors such as race and socioeconomic status are not discussed in this post but are important to understanding the state of pregnancy criminalization in America. See generally Pregnancy Justice infra note 3 (studying how pregnancy criminalization arrests are disproportionately Black women and women who would qualify as “indigent”).

[2] See Amy Yurkanin, One Alabama county cracked down on pregnant drug users. 10 years later, has it gone too far?, AL.com, July 31, 2023, https://www.al.com/news/anniston-gadsden/2023/07/one-alabama-county-pledged-to-crack-down-on-pregnant-drug-users-ten-years-later-has-it-gone-too-far.html (“The sentence for chemical endangerment in cases of miscarriage or stillbirth can be as long as 99 years. Women in Alabama have been found guilty even in cases with no clear causal link between drug use and the death of a fetus.”).

[3] Id.; See Amy Yurkanin, How One Alabama County Declared War on Pregnant Women Who Use Drugs, The Marshall Project, July 26, 2023, https://www.themarshallproject.org/2023/07/26/alabama-pregnant-women-drugs; Amy Yurkanin, As arrests of pregnant women rise, Alabama leads the way, report says, AL.com, Sept. 19, 2023, https://www.al.com/news/2023/09/as-arrests-of-pregnant-women-rise-alabama-leads-the-way-report-says.html; The Rise of Pregnancy Criminalization: A Pregnancy Justice Report, Pregnancy Justice 4–5, 20 (Sept. 2023), https://www.pregnancyjusticeus.org/wp-content/uploads/2023/09/9-2023-Criminalization-report.pdf; Marisa Iati, Pregnant women were jailed over drug use to protect fetuses, county says, The Washington Post, Sept. 8, 2022, https://www.washingtonpost.com/nation/2022/09/08/pregnant-women-drugs-jail/ (calling Etowah County “ground zero for pregnancy criminalization”).

[4] Pregnancy Justice supra note 3 at 11.

[5] Ala. Code 1975, § 26-15-3.2.

[6] Yurkanin, supra note 2.

[7] Id.

[8] Id.; Iati, supra note 3.

[9] Sam Levin, An Alabama woman was imprisoned for ‘endangering’ her fetus. She gave birth in a jail shower, The Guardian, Oct. 13, 2023, https://www.theguardian.com/us-news/2023/oct/13/alabama-pregnant-woman-jail-lawsuit.

[10] Id.

[11] Id.; Complaint at ¶¶ 33–54, Caswell v. Etowah County, No. 4:23-cv-01380-ACA-NAD (N.D. Ala. Oct. 13, 2023) (https://www.pregnancyjusticeus.org/wp-content/uploads/2023/10/Caswell-Complaint.pdf).

[12] Complaint at ¶¶ 33–74, Caswell v. Etowah County, No. 4:23-cv-01380-ACA-NAD (N.D. Ala. Oct. 13, 2023) (https://www.pregnancyjusticeus.org/wp-content/uploads/2023/10/Caswell-Complaint.pdf).

[13] Id. at ¶¶ 55–60.

[14] Id.

[15] Id. at ¶¶ 64–66.

[16] Id. at ¶¶ 68–77.

[17] Id. at ¶¶ 78–80.

[18] Complaint at ¶¶ 78–80, Caswell v. Etowah County, No. 4:23-cv-01380-ACA-NAD (N.D. Ala. Oct. 13, 2023) (https://www.pregnancyjusticeus.org/wp-content/uploads/2023/10/Caswell-Complaint.pdf).

[19] Id. at ¶¶ 82–85; “In normal pregnancies, placental separation occurs immediately after birth, while in pregnancies complicated by abruption, the placenta begins to detach before birth (1). This premature detachment commonly produces pain and vaginal bleeding, the clinical hallmarks of placental abruption, and occurs in about 0.6–1.0 percent of pregnancies (2). Maternal risks associated with abruption include massive blood loss, disseminated intravascular coagulopathy, renal failure, and, less commonly, maternal death (1, 3). Abruption is potentially disastrous to the fetus as well, with perinatal mortality as high as 60 percent (4–7).” Cande V. Ananth, Allen J. Wilcox, Placental Abruption and Perinatal Mortality in the United States, 153 American Journal of Epidemiology 4, 332–37 (2001) https://doi.org/10.1093/aje/153.4.332

[20] Complaint at ¶¶ 126–141, Caswell v. Etowah County, No. 4:23-cv-01380-ACA-NAD (N.D. Ala. Oct. 13, 2023) (https://www.pregnancyjusticeus.org/wp-content/uploads/2023/10/Caswell-Complaint.pdf).

[21] Id. at ¶¶ 137–38.

[22] Id.

[23] Moira Donegan, Alabama is jailing pregnant marijuana users to ‘protect’ fetuses, The Guardian, Sept. 12, 2022, https://www.theguardian.com/commentisfree/2022/sep/12/alabama-jailing-pregnant-marijuana-users-protect-fetuses;

[24] Id.

[25] Id.

[26] Iati, supra note 3.

[27] Id.

[28] Id.; Donegan, supra note 23; Carter Sherman, A Pregnant Woman Was Kept in Jail for Months Because She Smoked a Little Weed, Vice News, Sept. 8, 2022, https://www.vice.com/en/article/wxng7n/alabama-pregnant-woman-jailed-for-smoking-weed.

[29] Iati, supra note 3.

[30] Id.

[31] See Hassan Kanu, Alabama case over mistaken pregnancy highlights risks in a post-Roe world, Reuters, Dec. 6, 2022, https://www.reuters.com/legal/government/alabama-case-over-mistaken-pregnancy-highlights-risks-post-roe-world-2022-12-01/; Carter Sherman, Woman Jailed for Using Drugs While Pregnant Says She Wasn’t Even Pregnant, Vice News, Nov. 22, 2022, https://www.vice.com/en/article/xgypzd/woman-jailed-for-using-drugs-while-pregnant-says-she-wasnt-even-pregnant; Amy Yurkanin, Alabama woman jailed for using drugs during pregnancy wasn’t pregnant, lawsuit says, AL.com, Nov. 20, 2022, https://www.al.com/news/2022/11/alabama-woman-jailed-for-using-drugs-during-pregnancy-wasnt-pregnant-lawsuit-says.html.

[32] Kanu, supra note 31.

[33] Id.

[34] Complaint at ¶¶ 12–20, Freeman v. Fuller, No. 31-CV-2022-900443.00 (Etowah Circuit Court Nov. 7, 2022) (https://reason.com/wp-content/uploads/2022/11/2-Complaint.pdf).

[35] Yurkanin, supra note 2.

[36] Complaint at ¶¶ 12–20, Freeman v. Fuller, No. 31-CV-2022-900443.00 (Etowah Circuit Court Nov. 7, 2022) (https://reason.com/wp-content/uploads/2022/11/2-Complaint.pdf).

[37] Id. at ¶¶ 12–20.

[38] Yurkanin, supra note 2.

[39] The chemical endangerment statute requires the defendant to knowingly expose a child or fetus to drugs. Chelsea Stewart had not known she was pregnant when she was arrested for smoking marijuana outside her house. At the time, she was only six weeks pregnant. Investigator Fuller claimed in the local news that Stewart was three months pregnant and had knowingly smoked marijuana. Id.; Gadsden woman arrested for chemical endangerment, The Gadsden Times, Feb. 28, 2019, https://www.gadsdentimes.com/story/news/crime/2019/02/28/gadsden-woman-arrested-for-chemical-endangerment/5785012007/.

[40] Yurkanin, supra note 2.

[41] Id.

[42] Id.

[43] Donna Thornton, The Etowah County Sheriff’s Office recognized several employees during a recent Christmas celebration/awards banquet, The Gadsden Times, Dec. 15, 2020, https://www.gadsdentimes.com/picture-gallery/news/local/2020/12/15/etowah-county-sheriffs-office-honors-employees/6545162002/.

[44] See Yurkanin, supra note 2 (discussing the case of Chelsea Stewart, who was arrested for smoking marijuana outside her house and charged with chemical endangerment after she later discovered she was pregnant); Donegan, supra note 23 (discussing the case of Hali Burns, who was arrested for chemical endangerment after giving birth because she tested positive “for a drug used by pregnant women with opioid addictions to help manage cravings and withdrawal”); Emma Camp, Alabama Woman Jailed for 2 Months for Using CBD Oil While Pregnant, Reason, Aug. 4, 2023, https://reason.com/2023/08/04/alabama-woman-jailed-for-2-months-for-using-cbd-oil-while-pregnant/ (discussing the case of Amanda Bradley, who was arrested for chemical endangerment after using store-bought CBD oil lawfully sold in Alabama while pregnant).

[45] See Yurkanin, supra note 2 (showing the disparity in arrest and prosecution under the child endangerment statute between men and women).

[46] Complaint at ¶¶ 137–38, Caswell v. Etowah County, No. 4:23-cv-01380-ACA-NAD (N.D. Ala. Oct. 13, 2023) (https://www.pregnancyjusticeus.org/wp-content/uploads/2023/10/Caswell-Complaint.pdf).

[47] Iati, supra note 3.

[48] See Pregnancy Justice, supra note 3 at 4–5, 20 (identifying the states that have most frequently arrested pregnant women for charges relating to their pregnancy).

[49] Id. at 11.

Punished Twice: Opioid Users Increasingly Handed Harsh Sentences for Friends’ Deaths

By jlieditors

By: Bethany Jewison*

A new phase of the opioid crisis.

Jarret MacCasland and his fiancé Flavia Cardenas shared heroin on her 19^th birthday.^[1] Flavia tragically passed away and Jarret, who was only a few years older, was sentenced to life in prison with no chance of parole for the “murder” of Flavia.^[2] Similarly, a 17-year-old girl in Tennessee was charged with two counts of second-degree murder after sharing heroin with two of her friends who both overdosed and died.^[3] In Pennsylvania, Emma Semler used heroin in a KFC bathroom with her younger sister Sarah and friend Jennifer Werstler.^[4] When Jennifer overdosed and died, Emma was charged with “distribution resulting in death” and faced a minimum of 20 years in prison.^[5] These stories have become tragically routine as friends and loved ones who use drugs together are increasingly being blamed and tried for each others’ deaths.

Fentanyl continues to have a tight grip on the drug trade and users.^[6] One of the most sinister aspects of fentanyl is that it carries a significant risk of causing an overdose and/or resulting in the unintentional death of those who consume it.^[7] Sometimes fentanyl is used intentionally, and other times it is hidden in other drugs unbeknownst to the user.^[8] Thus, the United States has seen an uptick in various types of drug overdoses in recent years.^[9] One uncomfortable side-effect of this increase in overdoses is a trend of prosecutors charging friends who shared drugs with “distribution with death resulting”^[10] and other times even first-degree murder.^[11] In addition, more than half of states, including Minnesota, now have “drug-induced-homicide” statutes.^[12] Drug-induced-homicide statutes allow prosecutors to charge a defendant with murder without having to prove that they had any intent to kill or harm the deceased.^[13] These charges can carry incredibly heavy sentences, often between 20-30 years in prison – some even receiving life without parole.^[14] These cases have begun to draw considerable media attention as many recognize the injustice of these severe sentences.^[15] Proponents of such punishments argue that they serve a deterrent purpose by making people more afraid to use fentanyl and other opioids.^[16] However, deterrence has frequently been found to be an ineffective tool for combating drug addiction.^[17]

The Controlled Substances Act is being warped to unfairly punish friends and acquaintances.

The Controlled Substances Act (“the CSA”) prohibits and lays out severe sentences for drug distribution that results in death or serious bodily injury.^[18] Although these provisions almost certainly were intended to punish large-scale kingpin drug dealers, they are increasingly being applied in situations where friends or loved ones are sharing and using drugs together. Fortunately, there has been promising movement away from handing out the excessive sentences for “distribution resulting in death” prescribed by the CSA in at least one circuit. In United States v. Semler, the case regarding Emma Semler mentioned above, the Third Circuit held that the word “distribution” in 21 U.S.C. § 841(b)(1)(C) should not be interpreted to include friends sharing small amounts of drugs amongst themselves.^[19] The Court vacated Semler’s sentence and remanded for a new trial. The Third Circuit reasoned, in part, that the congress which enacted the CSA intended to draw a “sharp distinction”^[20] between the sale of drugs and the personal possession and use of drugs, and that this interpretation is more consistent with the purposes of the Act.^[21]

Although this case is a first step in the right direction of dialing back the unjust sentences because it lays out the analytical framework needed to do so, it is unfortunately not binding precedent as it was not published in a reporter. However, it is still a promising sign that courts may be growing uncomfortable with the disproportionality of the sentences being handed down in these cases and sets up a framework that other advocates and courts can use going forward.

Such prosecutions may put people with drug dependencies even more at risk.

Not only is the Third Circuit’s interpretation of the word “distribution” more analytically sound, but good public policy also urges a shift away from charging friends sharing drugs with “distribution resulting in death” or murder. Purchasing and using illegal drugs involve significant inherent risks.^[22] Homelessness, poverty, and violence are seen in disproportionately high rates among drug users.^[23] Accordingly, drug users often find safety in numbers and use and purchase drugs from or in the presence of friends or acquaintances.^[24] However, when users know that they may be held responsible for their friend’s potential overdose and death, then they may be more likely to purchase and use drugs in isolation. This could lead to even more overdose deaths, as there will be no one around to notice if there are signs of distress. Thus, it also sets up perverse incentives which could lead drug users to engage in even greater risks.

The CSA’s provision related to “distribution with death resulting” likely was intended to allow vigorous prosecution of drug kingpins who intentionally lace drugs or sell very dangerous substances likely to lead to overdose or death.^[25] Therefore, other federal courts should follow the Third Circuit’s reasoning and interpretation and hold that groups of friends or acquaintances who share small amounts of drugs among themselves are not “distributing” controlled substances for the purposes of the CSA. In addition, state prosecutors should abandon the harmful trend of charging friends who have shared drugs resulting in the loss of one of their lives with murder. While concerns about the dangers of fentanyl and opioid use are valid, handing out life sentences to fellow addicts after someone overdoses is a cruel and unhelpful response.

*Bethany Jewison is a Note and Comment Editor for JLI Vol. 42.

^[1] Rob Kuznia, “Her fiance gave her heroin. She overdosed. Does that make him a murderer?” (May 8, 2016) https://www.washingtonpost.com/national/her-fiance-gave-her-heroin-she-overdosed-does-that-make-him-a-murderer/2016/05/08/f9a9e79a-f29b-11e5-a2a3-d4e9697917d1_story.html.

^[2] Id.

^[3] Will McDuffie & Nadine El-Bawab, “Teen girl charged with murder after classmates die from fentanyl overdose” (May 19, 2023) https://abcnews.go.com/US/teen-girl-charged-murder-after-classmates-die-fentanyl/story?id=99454523.

^[4] United States v. Semler, 858 F. App’x 533 (3d Cir. 2021).

^[5] Id.

^[6] United States Drug Enforcement Administration, “Facts about Fentanyl” (Accessed Oct. 31, 2023) https://www.dea.gov/resources/facts-about-fentanyl.

^[7] Id.

^[8] “Fentanyl Drug Facts”, NIH, https://nida.nih.gov/publications/drugfacts/fentanyl (June 2021).

^[9] National Institute on Drug Abuse, “Drug Overdose Death Rates” (June 30, 2023) https://nida.nih.gov/research-topics/trends-statistics/overdose-death-rates.

^[10] Semler, 858 F. App’x 533 (3d Cir. 2021).

^[11] Eli Saslowi, “He Tried to Save a Friend. They Charged Him With Murder.”, New York Times (June 25, 2023), https://www.nytimes.com/2023/06/25/us/fentanyl-murder-charge.html.

^[12] Health in Justice Action Lab and Legal Science, “Drug Induced Homicide Laws” (Jan. 2019) https://pdaps.org/datasets/drug-induced-homicide-1529945480-1549313265-1559075032.; Minn. Stat. 609.195.

^[13] Id.

^[14] See Kuznia supra n. 1, Federal Sentencing Guidelines §2D1.1 (2023).

^[15] New Hampshire Public Radio, Death Resulting (Dec. 2021) https://www.nhpr.org/inside-nhpr/2021-12-01/death-resulting-new-podcast-follows-a-drug-deal-that-leads-to-death-revealing-hard-questions-about-death-resulting-laws; Saslow, supra n. 2.

^[16] Jan Hoffman “Harsh New Fentanyl Laws Ignite Debate Over How to Combat Overdose Crisis” (June 21, 2023) https://www.nytimes.com/2023/06/21/health/fentanyl-overdose-crisis.html.

^[17] Jon Schuppe, “Imprisoning Drug Offenders Doesn’t Affect Use, Study Says” (June 20, 2017) https://www.nbcnews.com/news/us-news/imprisoning-drug-offenders-doesn-t-impact-use-study-says-n774346.

^[18] 21 U.S. Code § 841(b).

^[19] United States v. Semler, 858 F. App’x 533 (3d Cir. 2021).

^[20] Id.

^[21] Id.

^[22] Peter Grinspoon, “Poverty, homelessness, and social stigma make addiction more deadly”, Harvard Health (Sept. 28, 2021) https://www.health.harvard.edu/blog/poverty-homelessness-and-social-stigma-make-addiction-more-deadly-202109282602.

^[23] Id.; Paul J. Goldstein, “The relationship between

drugs and violence in the United States of America” https://www.unodc.org/pdf/world_drug_report_1997/CH3/Box3B.pdf.

^[24] Jason Ford et. al., “Friends and relatives as sources of prescription opioids for misuse among young adults: The significance of physician source and race/ethnic differences” Subst. Abus. (2020) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6954351/.

^[25] Neal v. United States, 516 U.S. 284, 288 (1996) (explaining that Congress enacted federal drug laws to “combat the menace of drug trafficking”).

Level Setting Web Accessibility Expectations

By jlieditors

By: Mike Fadden*

For years, businesses have been on the receiving end of demand letters and complaints alleging their websites are inaccessible and violating the Americans with Disabilities Act (“ADA”).^[1] The unfortunate reality is that the legal requirements for a business’s website are about as clear as mud. The goal of this blog post is to help inform what those requirements are based on the ADA, case law, and guidance from the Department of Justice (“DOJ”).

Background

The ADA was first passed in 1990^[2] while the first website was launched in 1991.^[3] Given the timing, it’s unsurprising that the ADA didn’t contemplate specifically how the law should apply in an internet age. Fast forward 20+ years and the topic is still hotly debated and heavily litigated.^[4] Put simply, the issue revolves around whether the ADA requires websites to be accessible to users who have a disability. An often-given example is a blind user who relies on screen reader technology to navigate a website. Still, the scope of those impacted extends far beyond individuals who are completely blind—including those who may have low vision, impaired motor skills, or color blindness.^[5]

Legal Background

The most relevant text of the ADA states, “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.”^[6] The statute goes on to list 12 different examples of public accommodations including parks, zoos, daycare centers, retail stores, restaurants, hotels, service businesses such as barber shops or a bank, and others.^[7] When an individual submits a complaint against a business for an inaccessible website, one of the most important questions a court must answer is whether the business’s website is a public accommodation within the meaning of the statute.

Interpretation by the Courts

Since the text of the statute is silent on whether a website is a public accommodation, courts have been forced to answer the question based on their own interpretation. With 94 Federal District Courts and 12 Circuit Courts of Appeals, it’s not surprising that there hasn’t been consensus across all jurisdictions.^[8] A decision by the United States Supreme Court on the issue could clarify the statute’s application to websites and we may see that shortly. On October 4, 2023, the Supreme Court heard oral arguments in Acheson Hotels, LLC v. Deborah Laufer.^[9] In this case, Acheson argued Laufer did not have standing to sue a hotel for an inaccessible website when Laufer had no intention of visiting the hotel.^[10] This case is unique, however, because both parties agree the case is moot because Laufer withdrew her lawsuit, the hotel has changed ownership and a website that has been updated.^[11] Despite agreement by all parties that the case is moot, Acheson asked the Court to address standing before turning to mootness.^[12] Justice Sotomayor pointed out that the Court has never addressed standing before mootness.^[13] This reality was conceded by Acheson.^[14] If the Court decides the case is moot and does not address standing, the circuit courts will not be aided in future cases. If, however, the Court addresses the standing issue before mootness, the opinion may help to resolve aspects of the circuit split.

The difference in opinions by the Circuit Courts of Appeals has resulted in two different theories on whether a website is a place of public accommodation. In the Third, Sixth, Ninth, and Eleventh Circuits, the courts have held that a “place of public accommodation” is restricted to a physical space.^[15] While a website is not a physical space on its own, the courts have applied a “nexus” test which can be summarized as an analysis of whether the inaccessibility of the website in question would impair the full and equal enjoyment of the goods and services at the physical location. Meaning, the Third, Sixth, Ninth and Eleventh Circuits could find a website in violation of the ADA only if the website has a sufficient nexus to a physical location. For example, Target’s website was determined to have a sufficient nexus to its physical locations because an online customer could order photos to be picked up in the store or refill prescriptions to be picked up at the store.^[16] However, if a business has no physical structure for customers to visit and operates solely online, it is unlikely a sufficient nexus would be established and these websites would not be considered a “place of public accommodation” under the ADA.

In the Seventh Circuit and district courts in the First Circuit, courts have held that a “place of public accommodation” does not need to be a physical space and could include businesses where customers never visit a physical location.^[17] An illustrative example of this application came out of a Massachusetts District Court opinion on National Association of the Deaf v. Netflix, Inc., where the court held that Netflix’s website on its own is a place of public accommodation and falls within the scope of the ADA.^[18] In the Netflix case, the court cited to Carparts Distrib. Ctr. v. Auto. Wholesaler’s Assoc., a First Circuit case decided in 1994.^[19] The court notes the Carparts decision established that sales made in person should not be distinguished from sales made over the phone or via mail and thus the ADA extends beyond just those in person activities.^[20]

Advice for Businesses

Due to the circuit split discussed above, the question of whether a website must be accessible will likely turn on which jurisdiction is deciding the case as well as the nature of the business. So long as there are plaintiff-friendly jurisdictions, businesses are at risk of receiving complaints and should make their websites accessible. While the legal risk may be the catalyst for businesses to make their websites accessible, other compelling arguments for accessibility exist. For example, businesses that value diversity should consider whether they are living up to their values if they fail to make a website accessible to their customers and employees. Additionally, businesses with inaccessible websites are ignoring a segment of the market and leaving money on the table. According to one study done by Boston-based Nucleus Research, businesses operating an internet retail presence are leaving more than $6.9 billion on the table by failing to make their websites accessible to those with disabilities.^[21]

Currently, Title III of the ADA provides no standard to private businesses in terms of what makes a website accessible.^[22] However, in August of 2023, the Department of Justice issued a Notice of Proposed Rulemaking which would set technical standards for what satisfies the accessibility requirement.^[23] It’s important to note that the proposed rules would only apply to State and local government entities under Title II of the ADA, but should serve as an indication of what the expectations are for Title III businesses as well. The DOJ is proposing WCAG 2.1 Level AA which is a set of standards produced by a body of accessibility experts.^[24] These standards have long served as an industry best practice and the proposed rules are a step toward formalizing the adoption of these standards.^[25]

Conclusion

The question of whether a business must make its website accessible or not can be answered, like most legal questions, with “it depends.” Nonetheless, businesses who fail to make their website accessible are at risk for suit alleging an ADA Title III violation. The end result will likely turn on the jurisdiction in which the suit was filed. As a result, the most prudent course of action would be to seek conformity with the WCAG 2.1 Level AA standards of accessibility, given their potential for adoption by the DOJ. If the legal risk isn’t enough for businesses to pursue an accessible website, the social and economic considerations should tip the scales in favor of compliance.

*Mike Fadden is an Online Editor for JLI Vol. 42.

[1] Gus Alexiou, Website Accessibility Lawsuits Rising Exponentially in 2023 According to Latest Data, Forbes, https://www.forbes.com/sites/gusalexiou/2023/06/30/website-accessibility-lawsuits-rising-exponentially-in-2023-according-to-latest-data.

[2] Review Laws, Regulations & Standards, ADA.gov, https://www.ada.gov/law-and-regs/ (last visited Oct. 28, 2023).

[3] Internet, Our World in Data, https://ourworldindata.org/internet (last visited Oct. 28, 2023).

[4] Supra note 1.

[5] Jonathan Lazar, Daniel Goldstein, & Anne Taylor, Ensuring Digital Accessibility Through Process and Policy 2 (1st ed. 2015).

[6] 42 U.S.C. 12182 (2023) (emphasis added).

[7] 42 U.S.C. 12181(7) (2023).

[8] About the U.S. Courts of Appeals, United States Courts, https://www.uscourts.gov/about-federal-courts/court-role-and-structure/about-us-courts-appeals (last visited Oct. 28, 2023).

[9] Transcript of Oral Argument, Acheson Hotels, LLC v. Deborah Laufer (22-429) (U.S., 2023).

[10] Id.

[11] Id at 47.

[12] Id at 7.

[13] Id at 7.

[14] Id at 7.

[15] Ford v. Schering-Plough Corp., 145 F.3d. 601, 614 (3rd Cir. 1998) (holding the term “public accommodation” cannot extend to non-physical access); Parker v. Metro. Life Ins. Co., 121 F.3d. 1006, 1010–11 (6th Cir. 1997) (holding a “public accommodation” is a physical place); Earll v. eBay, Inc., 599 Fed.Appx. 695, 696 (9th Cir. 2015) (holding that “public accommodation” necessitates some connection between the discrimination and a physical space); Rendon v. Valleycrest Prods., Ltd., 294 F.3d 1279 (11th Cir. 2002) (holding that the ADA extended beyond just physical barriers to access and that a hotline which discriminated against disabled users seeking to be contestants on Who Wants to be a Millionaire was in violation of the ADA because it served as discrimination against eligibility to participate on a show that takes place in person at a studio).

[16] Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp. 2d 946, 949-56 (2006).

[17] Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196, 200-02 (D. Mass. 2012) (holding that Netflix’s streaming service is a “public accommodation” despite the service being accessed exclusively in one’s home); Morgan v. Joint Admin. Bd., Retirement Plan of the Pillsbury, Co., and others, 268 F.3d 456, 569 (7th Cir. 2001) (holding that the site of a sale is irrelevant to Congress’s goal of granting the disabled equal access to the sellers of goods and services). See also Romero v. 88 Acres Foods, Inc, 580 F. Supp. 3d 9, 19 (S.D.N.Y 2022) (holding that “websites qualify as places of ‘public accommodation,’ albeit electronic ones, and, as such, are required to provide equal services to visually impaired and sighted people.”). See also Nat’s Fed’n of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, 576 (D. Vt. 2015) (holding that accessing a digital library that is not associated with any physical location is a place of “public accommodation.”)

[18] Netflix, Inc., 869 F. Supp. 2d at 200-02.

[19] Carparts Distrib. Ctr. v. Auto Wholesaler’s Assoc. 37 F.3d 12 (1st Cir. 1994).

[20] Id. at 19.

[21] Rebecca Wetteman & Trevor White, The Internet is Unavailable, Nucleus Research, https://cdn2.hubspot.net/hubfs/153358/Nucleus-The%20Internet%20is%20unavailable.pdf (last visited, Oct. 28, 2023).

[22] 42 U.S.C. 12181.

[23] Dep’t of Justice, Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities, https://www.federalregister.gov/documents/2023/08/04/2023-15823/nondiscrimination-on-the-basis-of-disability-accessibility-of-web-information-and-services-of-state.

[24] Id. WCAG standards are developed by the World Wide Web Consortium (W3C), an international organization developing best practices for websites. WCAG standards have undergone various versions with each version identifying issues and categorizing these by severity and impact on disabled users. Those issues that are most severe are categorized as ‘A’ level issues with least severe issues categorized as ‘AAA’. It has been widely accepted that AA compliance is a reasonable middle ground making websites mostly accessible to disabled users while avoiding too exacting of standards for the businesses.

[25] Id.

Oregon’s Yamhill County v. Real Property Commonly Known as 11475 NW Pike Road and The Cracks Forming in the Legal Foundation of Civil Forfeiture Laws

By jlieditors

By: Christian Purnell*

In March of 2018, authorities in Yamhill County, Oregon arrested Cheryl Sublet, a 61-year-old grandmother and military veteran, on charges of possession and delivery of narcotics.[1] Her relapse and arrest represented a tragic turn of events for Sublet who had long battled chemical dependency and PTSD but who had had maintained sobriety and worked for over a decade as a case manager with a Portland based non-profit social services provider.[2] Ms. Sublet ultimately agreed to plead guilty to one count of delivery of narcotics and was sentenced to spend 72 months in prison and forfeit $50,000 in cashier’s checks—proceeds from the sale of her Portland home that were seized during a search of her house in Yamhill County.[3] While this resolution technically brought her criminal case to an end, authorities were not yet ready to close Ms. Sublet’s file. Their next target: her home.

In 2020, Yamhill County brought, and won, a separate civil suit to seize Sublet’s $354,000 home through a process known as civil forfeiture.[4] This past spring, Sublet appealed the judgement, arguing that the seizure of her home constituted a successive proceeding for the same crime, in violation of the Fifth Amendment’s prohibition against double jeopardy.[5] In March of 2023, in Yamhill County v. Real Property Commonly Known as 11475 NW Pike Road (hereinafter “Yamhill County”),[6] the Oregon Court of Appeals agreed with Sublet and found that Oregon voters had sufficiently modified the “nature” of civil forfeiture by way of constitutional amendment in 2000 to legally transform a civil forfeiture action into a criminal proceeding for the purposes of double jeopardy.[7] The decision reflects a growing judicial skepticism of the practice, and holds valuable lessons for those seeking to challenge the constitutionality of civil forfeiture.

Premised on the legal fiction that inanimate property can violate the law, civil forfeiture has long been treated by courts, and laws, as a strictly civil remedial sanction brought against the land itself.[8] Because civil forfeiture treats the land as the offender, instead of the property holder, seizing authorities are not required to adhere to the rigorous due process demands and high standard of proof of criminal prosecutions of individuals or businesses.[9] In Oregon for example, civil forfeiture laws allow the government to seize “all real property, including any right, title and interest in the whole of any lot or tract of land and any appurtenances or improvements, that is used in any manner, in whole or part, to commit or facilitate prohibited conduct.”[10] Authorities need not show that the property owner was convicted of the underlying prohibited conduct.[11] In fact, a complaint in a civil forfeiture case need only allege that there is probable cause that the property was used to commit or facilitate unlawful conduct—a far cry from the “beyond reasonable doubt” required for criminal prosecutions.[12] Such procedural advantages have made civil forfeiture a valuable tool for law enforcement who can efficiently mete out punishment for alleged conduct without assuming the higher legal burden and cost of a criminal jury trial.[13] Moreover, civil forfeiture laws typically allow law enforcement agencies to keep a large percentage of the proceeds from the liquidation of forfeited property which further incentivizes its use.[14]

While authorities have found new applications for civil forfeiture in recent decades, the practice has centuries old roots. Adopted from its English predecessors, a young U.S. government relied heavily on civil forfeiture to avoid the “caprices of juries” when seizing ships carrying contraband or evading taxes—a vital source of government revenue throughout the 18^th and 19^th centuries.[15] Over time, Congress expanded the reach of civil forfeiture beyond maritime law to seize property from rebels during the civil war, and exact punishment on heavily resourced criminal syndicates in the 1900s who inspired fear or loyalty in potential witnesses and therefore made criminal prosecution nearly impossible.[16] However, in the latter half of the 20^th century, during its “war on drugs,” States and the Federal Government increasingly used civil forfeiture to seize property from individual drug dealers and users instead of well-resourced criminal enterprises. Today, the average seizure is only a few hundred dollars.[17] While small on an individual level, these seizures aggregate to over $63 billion.[18] Given racial and income disparities in criminal law enforcement, civil forfeiture has come to represent a large-scale regressive tax on America’s most marginalized communities.

As awareness of the disparities in civil forfeiture has grown, a small number of states have sought to reform the practice. Four states have banned the practice entirely.[19] And, in Oregon, the voters themselves “exercised their initiative power under Article IV, section 1(2)(a), of the Oregon Constitution to approve Ballot Measure 3 (2000), a constitutional amendment . . . which created new limitations on forfeiture.”[20] Among other provisions, the Oregon Constitution now “generally requires a criminal conviction before property can be forfeited, allows only for forfeiture of the instrumentalities or proceeds of the specific crime or conviction of similar crimes, and specifies that the value of any property forfeited must be “substantially proportional” to the specific crime of conviction.”[21] Supportive statements in the voters’ pamphlet for the constitutional amendment “viewed the measure as necessary to combat the perceived abuse of the civil forfeiture process to take the property of people who had not been convicted of crimes. Proponents viewed this practice as contrary to the presumption of innocence, and as an affirmative injustice.”[22] One statement laid bare the injustice that concerned voters: “Civil forfeitures occur an average of three times a day in Oregon. In 1999, police reported taking $2.1 million from 1,069 people. In 72 percent of those cases, no one was arrested, charged, or convicted of a crime.”[23]

Viewing the voter’s statements, the purpose statements of the amendments, the text of the amendments themselves, and the historical context of civil forfeiture, the Court of Appeals determined that the Oregon’s citizens intended to clarify that civil forfeiture in the State is intended to be criminal and punitive and thus subject to the due process demands and prohibition against double jeopardy of the constitution’s Fifth Amendment.[24] The court found that “by ratifying Article XV, section 10, Oregonians rejected the legal fiction underlying in rem forfeitures—that property itself can be guilty so as to allow the government to take it—and replaced it with an in personam theory of forfeiture that implicates double jeopardy.”[25]

With its decision in Yamhill County, Oregon’s Court of Appeals demonstrated a novel willingness to look beyond the legislature’s characterization of civil forfeiture to interrogate the true nature of the practice, and inserted Oregon into a broader judicial movement challenging civil forfeiture’s constitutionality. Later this year, the U.S. Supreme Court will hear an Alabama case, Culley v. Marshall,[26] where the plaintiffs allege that Alabama did not provide constitutionally adequate due process to owners of cars, innocent of criminal conduct, whose cars were nonetheless seized pursuant to the state’s civil forfeiture laws.[27]

Moreover, Yamhill County illuminates an alternative pathway for individuals interested in reforming their state’s civil forfeiture laws. While it is too early to tell if other courts, including Oregon’s Supreme Court, will be receptive to the Court of Appeal’s reasoning in Yamhill County, voters in states that permit citizens to amend the their constitutions or pass laws, by way of popular initiative, may be able to transform the “nature” of civil forfeiture from civil to criminal without the legislature’s involvement.[28] Sixteen states, including Oregon, allow individuals to introduce a new law or constitutional amendment through “direct initiative” which circumvents the legislature and sends qualifying proposals directly to the voters’ ballots.[29] In states where law enforcement interest groups act to stymie civil forfeiture reform in legislatures, direct initiative could present a potentially powerful alternative path.

Even if the Oregon Supreme Court reverses the Court of Appeals’ decision in Yamhill County, the case represents another crack in the weakening foundation of the legal fiction that is civil forfeiture.

*Christian Purnell is an Articles Editor for JLI Vol. 42.

[1] Jonathan Bach, Yamhill County woman arrested for shipping meth, heroin, Statesman J. (March 7, 2018, 11:44 A.M. PDT), https://www.statesmanjournal.com/story/news/2018/03/07/yamhill-county-woman-arrested-shipping-meth-heroin/403826002/.

[2] Lucas Manfield, An Appeals Court Ruling Says Voters Outlawed Civil Forfeiture, Willamette Week (June 21, 2023, 5:26 am PDT), https://www.wweek.com/news/2023/06/21/an-appeals-court-ruling-says-voters-outlawed-civil-forfeiture/.

[3] Id.

[4] Jury decides convicted Oregon meth dealer should lose home, Associated Press (Feb. 16, 2020, 3:24 PM), https://apnews.com/article/312b8dfdfe5bd8b192095a6911536973.

[5] Yamhill County v Real Property Commonly Known as 11475 NW Pike Road, 324 Or. App. 412 (2023) (hereinafter “Yamhill County”).

[6] Yamhill County, 324 Or. App. 412 (2023).

[7] Id. at 415.

[8] Donald J. Boudreaux & A. C. Pritchard, Civil Forfeiture and the War on Drugs: Lesson from Economics and History, 33 San Diego L. Rev. 79, 93 (1996).

[9] Matthew P. Harrington, Rethinking In Rem: The Supreme Court’s New (and Misguided) Approach to Civil Forfeiture, 12 Yale L. & Pol’y Rev. 281, 282 (1994).

[10] Or. Stat. 131A.020.

[11] Or. Stat. 131A.225.

[12] Id.

[13] Brittany Hunter, A History of Civil Asset Forfeiture in America: Pirates, Mob Bosses, and the War on Drugs, Foundation for Economic Education: Fee Stories (April 9, 2019), https://fee.org/articles/a-history-of-civil-asset-forfeiture-in-america-pirates-mob-bosses-and-the-war-on-drugs/.

[14] Donald J. Boudreaux & A. C. Pritchard, supra note 6, at 80; see also Minnesota Office of the State Auditor, Asset Forfeitures in Minnesota (2021) (finding that, depending on the alleged use of the property, up to 70% of the proceeds of its liquidation are allocated to law enforcement agencies).

[15] Donald J. Boudreaux & A. C. Pritchard, supra note 6, at 98 n.62.

[16] Hunter, supra note 11.

[17] Lisa Knepper, Jennifer McDonald, Kathy Sanchez & Elyse Smith Pohl, Policing for Profit 21 (December 2020).

[18] Id. at 5.

[19] Maine, Nebraska, North Carolina and New Mexico have banned the practice. See generally Nicole Ezeh, Supreme Court to Reexamine Use of Civil Asset Forfeiture, National Conference for State Legislatures (May 1, 2023), https://www.ncsl.org/state-legislatures-news/details/supreme-court-to-reexamine-use-of-civil-asset-forfeiture; see also Yamhill County, 324 Or. App., at 414.

[20] See Yamhill County, 324 Or. App., at 414.

[21] See id.; see generally Or. Const., Art XV, § 10.

[22] Yamhill County, 324 Or. App., at 418.

[23] Id.

[24] Id.

[25] Id.

[26] Culley v Marshall, 143 S. Ct. 1746 (2023).

[27] Adam Liptak, Cars Seized by Police Get Supreme Court Scrutiny in Civil Forfeiture Case, N.Y. Times (Oct. 30, 2023), https://www.nytimes.com/2023/10/30/us/politics/supreme-court-civil-forfeiture.html.

[28] Initiative and Referendum States, Nat’l Conf. of State Legislatures (March 15, 2023), https://www.ncsl.org/elections-and-campaigns/initiative-and-referendum-states.

[29] Arizona, Arkansas, California, Colorado, Florida, Illinois, Michigan, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, allow citizens to pass law or amend the state’s constitution by “direct citizen initiative” which sends qualifying proposals directly to voters’ ballots. See id.

Taking Out the Trash: Is Biden’s Plan for Eliminating Junk Fees an Effective One?

By jlieditors

By: Evelyn Doran*

In late October, the White House announced that the Department of Labor (DOL) would be publishing a new proposed rule regulating the financial advice provided to 401(k) plan participants.^[1] In its fact sheet on the new rule, the White House described it as “part of [President Biden’s] broader Bidenomics agenda,” linking it to the President’s promises to reduce ‘junk fees’—additional fees attached at the end of transactions that are not clearly explained by the service provider.^[2] Biden first began attacking junk fees in 2022 in the wake of widespread public outrage over the handling of ticket sales for Taylor Swift’s Eras Tour and has since made it a key part of his economic policy agenda.^[3]

The new DOL rule would subject financial service providers advising on retirement savings and investment advisors providing recommendations on 401(k) rollovers to the Employee Retirement Income Security Act (ERISA), under which covered entities and individuals have a fiduciary duty to act in the best interest of retirement plan participants and account owners.^[4] To better understand the potential impact of this rule, we must consider both the way junk fees affect the average individual and the economy at large, as well as what scholars and stakeholders are saying about this regulation’s potential for successfully addressing those effects.

At least 85% of Americans have encountered junk fees in recent transactions, and many complain that the unexpected charges make their previously planned purchases cost-prohibitive.^[5] In one instance, a ticket-buyer found that their tickets to a Drake concert, which originally cost $544, had an additional $541 added at checkout for a service fee, facility fee, and order fee.^[6] Consumer Reports has identified these types of fees as particularly burdensome, noting that they often increase the cost of tickets by around 40%.[7] People also pay these fees in much smaller amounts on a regular basis, like when they pay ATM fees, overdraft fees, or delivery fees.[8] While these smaller fees may cause less sticker-shock, the cumulative effect of frequent micro-transactions has a real impact on consumer’s wallets. According to the Consumer Financial Protection Bureau (CFPB), consumers pay at least $29 billion of these additional charges each year.^[9] What’s more, junk fees are pervasive across sectors; these fees are used by many service providers, including hotels, food delivery services, cable providers, credit card providers, and financial advisors.^[10]

Given the scale of this issue, Biden likely faces an uphill battle as he attempts to eliminate these kinds of surprise fees. So far, his executive action on this issue has focused on the fact that junk fees are hidden or unexpected. For example, this past June, Biden met with ticketing and travel companies to discuss their voluntary decision to provide all-in pricing, applauding the companies for choosing to increase price transparency and improve consumers’ purchase experience.^[11] The proposed DOL rule on one-time financial advice also works toward that end—by requiring investment advisors to act in the best interest of the savers they serve, the DOL in effect requires those advisors to disclose any junk fees or hidden losses to retirement savings, as failing to do so would be a breach of their duties under ERISA.^[12]

Some critics argue that this rule will not actually generate a meaningful reduction in unnecessary costs to consumers. In their eyes, while this may mean that consumers are better informed about the price at checkout, companies may just as easily raise prices to replace the lost fee revenue, thereby rendering consumer savings on fees moot.^[13] Others still argue that the fees are in fact necessary, as companies often need to tailor transaction prices to meet the needs of a wide variety of customers, and say that removing this pricing structure makes things worse by threatening to raise prices for everyone in the absence of specialized pricing.^[14] While approaching it from different angles, both these critiques get to a crucial issue in how we choose to address junk fees: is the issue the fact that the fee is a surprise, or that the service provider is being unreasonable for charging additional prices for seemingly no added benefit to the consumer?

There is, however, some data showing that consumer awareness of the fees, rather than the actual cost of the fees themselves, may in fact be a worthwhile end. According to a study conducted in February of 2023 by The Harris Poll, 64% of Americans intending to travel in 2023 “say they’d prefer to see one total combined price that includes all charges rolled into one, rather than a room rate plus separate fees.”[15] Some of this preference is attributable to the way junk fees make it harder for consumers to effectively select options that best fit their needs and budgets. The Federal Trade Commission described this issue in its 2017 economic report on resort fees, writing that

[i]f resort fees were included in the room rate, consumers could compare rooms at different hotels by simply viewing the room pages at the hotel websites and remembering the prices. With separately-disclosed resort fees, consumers would need to add the room rate to the resort fee and remember the total for each hotel under consideration or keep track of the room rates and resort fees separately for each hotel.[16]

Taking into consideration the different decisions consumers might make when they are aware of the transaction’s total cost at the outset, rules like those proposed by the Biden administration may stand to save Americans money. As people are aware of how much their transaction will actually cost, they are better able to make informed decisions about what they choose to spend on, and may then save money by selecting options with lower total costs.[17]

The question of how effectively Biden’s proposed rules on junk fees address the problem is therefore one of scope. Is the problem that consumers need to have adequate notice of how much money they are spending when they first consider making a purchase, or is it that we need to stop companies from hiking up prices with seemingly no added benefit to their customers? Untangling these two issues has become increasingly difficult, as the rise in the prevalence of junk fees has been paralleled by a rise in how much these fees cost.[18] Thus, the issue is both that consumers are now more likely to be blindsided by hidden fees, and that such hidden fees may no longer reflect the cost of the services they proport to represent. As regulation in this area continues to evolve, stakeholders may have to consider whether their efforts to alleviate these costs to consumers may be misplaced, and if so, how best to recenter the conversation on the actual costs to consumers.

[1] Fact Sheet: President Biden to Announce New Actions to Protect Retirement Security by Cracking Down on Junk Fees in Retirement Investment Advice, White House (Oct. 31, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/31/fact-sheet-president-biden-to-announce-new-actions-to-protect-retirement-security-by-cracking-down-on-junk-fees-in-retirement-investment-advice/#:~:text=The%20proposed%20rule%20would%20ensure,like%20a%20401(k) [hereinafter Fact Sheet].

[2] Fact Sheet, supra note 1; see also, Emma Kinery, White House Hammers Economic Issues with Attack on ‘Junk Fees’ Two Weeks Out from Election Day, CNBC (Oct. 26, 2022), https://www.cnbc.com/2022/10/26/white-house-hammers-economic-issues-with-attack-on-junk-fees-two-weeks-out-from-election-day.html (noting that the Biden Administration has levied sustained pressure against companies that charge ‘junk fees’, namely through changes in regulatory guidance); Emma Kinery, Five Key Economic Points in Biden’s 2023 State of the Union Address to Congress, CNBC (Feb. 7, 2023), https://www.cnbc.com/2023/02/08/five-key-economic-points-in-bidens-2023-state-of-the-union-address-to-congress.html (describing how President Biden focused portions of his 2022 State of the Union address on his “war on ‘junk fees’”); Karen Bennet & Brian Beers, What Are Junk Fees?, Bankrate (Apr. 4, 2023), https://www.bankrate.com/banking/junk-fees/ (“The term ‘junk fees’ can be applied to a broad range of charges that may be unexpected by consumers and not clearly explained by the financial institution or other service provider that imposes them.”).

[3] Alexandra Canal, Biden Targets Junk Fees in Wake of Ticketmaster’s Taylor Swift Fiasco, yahoo!finance (June 15, 2023), https://finance.yahoo.com/news/biden-targets-junk-fees-in-wake-of-ticketmasters-taylor-swift-fiasco-185234243.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAM8wUz3xi3VV6zl8m8dDGJcsLHKRt3VqunjWYmjZQTu2wzF5ACbdCFnZhSF0twhxs6DqBnC-ksOUG84eafittwel_DLgPVu-ehKJUkG5DQSGPCgUJKnpY99xwH56XoGxDxkQWiyijya4NsF7PMfcvyh0ACXPVSnfEmgFssERrsEm.

[4] Fact Sheet, supra note 1; News Release: U.S. Department of Labor Announces Proposed Rule to Protect Retirement Savers’ Interests by Updating Definition of Investment Advice Fiduciary, U.S. Dep’t of Lab. (Oct. 31, 2023), https://www.dol.gov/newsroom/releases/ebsa/ebsa20231031 [hereinafter DOL News Release].

[5] Nik Popli, Biden Praises Companies for Ending Junk Fees. Here’s What the Changes Mean for You, Time (Feb. 8, 2023) (updated June 16, 2023), https://time.com/6254113/what-are-junk-fees-biden-ban/ (citing Penelope Wang, Protect Yourself from Hidden Fees, Consumer Reports (May 29, 2019), https://www.consumerreports.org/money/fees-billing/protect-yourself-from-hidden-fees-a1096754265/).

[6] Popli, supra note 5.

[7] Trade Regulation Rule on Unfair or Deceptive Fees, 88 Fed. Reg. 77420 (proposed Nov. 9, 2023) (to be codified at 16 C.F.R. pt. 464) (referencing a comment on the notice of proposed rulemaking made by Consumer Reports).

[8] See Karen Bennett & Matthew Goldberg, Survey: ATM Fees Hit Record High While Overdraft and NSF Fees Fell Sharply, Bankrate (Aug. 30, 2023), https://www.bankrate.com/banking/checking/checking-account-survey/; Trade Regulation Rule on Unfair or Deceptive Fees, 88 Fed. Reg. 77420 (summarizing comments to proposed rulemaking that discuss the pervasiveness of excessive financial services fees).

[9] Popli, supra note 5.

[10] Id.; Fact Sheet, supra note 1, Trade Regulation Rule on Unfair or Deceptive Fees, 88 Fed. Reg. 77420.

[11] Private Sector Ticketing and Travel Companies to Eliminate Hidden Junk Fees and Provide Millions of Customers with Transparent Pricing, White House (June 15, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/06/15/president-biden-recognizes-actions-by-private-sector-ticketing-and-travel-companies-to-eliminate-hidden-junk-fees-and-provide-millions-of-customers-with-transparent-pricing/.

[12] Fact Sheet, supra note 1; DOL News Release, supra note 4.

[13] Allison Pohle & Joe Pinsker, What Biden’s Crackdown on ‘Junk Fees’ Could Mean for Travelers, Concertgoers, and Credit Cards, Wall St. J. (Feb. 8, 2023), https://www.wsj.com/articles/what-bidens-crackdown-on-junk-fees-could-mean-for-travelers-concertgoers-and-credit-cards-11675884986?mod=Searchresults_pos1&page=1.

[14] See Howard Beales & Todd J. Zywicki, Junkyard Dogs: The Law and Economics of “Junk” Fees, 2023 CPI Antitrust Chronicle (arguing that the type of pricing scheme that Biden seeks to remove is in fact the valid result of competitive markets); Katy Marquardt Hill, Why Biden’s War on Junk Fees May Not Save You Money, CU Boulder Today (Aug. 9, 2023), https://www.colorado.edu/today/2023/08/09/why-bidens-war-junk-fees-may-not-save-you-money (interviewing Amit Bhattacharjee, associate professor of marketing at the University of Colorado Boulder Leeds School of Business) (“Some of these fees serve important economic functions. . . . The bank still has to cover those costs, and they’ll pass them on to consumers one way or another.”).

[15] Sally French, Americans Prefer to Know Hotel Costs Upfront—Fees and All, NerdWallet (Mar. 15, 2023), https://www.nerdwallet.com/article/travel/americans-prefer-to-know-hotel-costs-upfront-fees-and-all (citing an online survey conducted by market analytics company The Harris Poll that studied the preferences of American adults planning on vacationing in 2023).

[16] Mary W. Sullivan, FTC Bureau of Econ., Economic Analysis of Hotel Resort Fees, 2-3 (2017).

[17] FTC, Statement of Chair Lina M. Khan Regarding the Advanced Notice of Proposed Rulemaking on Unfair or Deceptive “Junk” Fees (Oct. 20, 2022).

[18] See Sullivan, supra note 16, at 2 (“Moreover, the amount consumers are paying in resort fees is increasing. In 2015, consumers paid resort fees estimated at about $2 billion, 35 percent higher than the previous year.”); Rachel DePompa, ‘Junk Fees’ Cost Americans Almost $65 Billion Each Year, WALB News (Sept. 4, 2023), https://www.walb.com/2023/09/04/junk-fees-cost-americans-almost-65-billion-each-year/?outputType=apps (describing the CFPB’s position that credit card late fees have come to far exceed their necessary rates, and instead have become “a profit center” for card companies).

*Evelyn Doran is the Lead Managing Editor for JLI Vol. 42.

Will Minnesota’s New Automatic Expungement Laws Have an Effect on Federal Sentences?

By jlieditors

By Britane Hubbard*

On January 1, 2025, Minnesota’s new automatic expungement statutes will go into effect.^[1] Under this new law, the Bureau of Criminal Apprehension will identify eligible people and grant them expungement relief if they qualify.^[2] Offenses eligible for expungement range from petty misdemeanors to felonies.^[3] The possibility of a new wave of expungements raises many legal questions. One question is whether expungements under the new statutes could change federal prison sentences for those whose state convictions were used in calculating their federal sentence.

For example, under the United States Sentencing Guidelines (“Guidelines”),^[4] points are allocated for each prior sentence of imprisonment that an offender has.^[5] These points are then added up to determine a person’s “criminal history category” which corresponds with a sentencing guideline range.^[6] The more points a person has the higher the applicable guideline sentencing range.^[7] However, the Notes to the Guidelines specifically state that “[c]ertain prior sentences are not counted” such as “a sentence for. . . a conviction that has been expunged.”^[8] Additionally, the instructions given for computing criminal history specifically state that “[s]entences for expunged convictions are not counted.”^[9]

So, what happens when a Minnesota conviction and sentence that was used to calculate a person’s federal sentence is later expunged? The short answer, at least in the Eighth Circuit is nothing. Typically, if a federal sentence is calculated in part on a prior state conviction which “is later vacated, the defendant may successfully attack his federal sentence.”^[10] A person “seeking to challenge their convictions and/or sentence after the conclusion of [their] trial and direct appeals process usually must file a motion to vacate under 28 U.S.C. § 2255.”^[11] This has also historically been called a habeas corpus petition.^[12]

Given the Guidelines specific language that expunged sentences should not be counted, a reasonable assumption would be that the federal sentence should be re-calculated without the points derived from the expunged sentence.^[13] However, the “Guidelines do not expressly define the term ‘expunged.’”^[14] The Eighth Circuit has looked to the Guideline commentary to find that “expunged convictions under [the Guidelines] appear to be those (1) reversed or vacated due to legal errors or later-discovered evidence exonerating the defendant or (2) ruled constitutionally invalid.”^[15] Moreover, “federal law, not state law determines whether a prior sentence is counted for criminal history purposes,”^[16] which essentially means that “a state’s use of the term ‘expunge’ is not controlling in determining whether a conviction is properly included in calculating a defendant’s criminal history category.”^[17] In other words, “the federal question ‘is whether the defendant was previously convicted, not the particulars of how state law later might have, as a matter of grace, permitted that conviction to be excused, satisfied, or otherwise set aside.”^[18] The point of this distinction “is that this type of expungement statute limits public access to the records of a defendant’s prior conviction ‘in order to restore his civil rights and give him a new start in the work place and as a citizen,’ but it does not permit him to commit more crimes free of additional punishment based upon his recidivism.”^[19]

“[W]hen determining whether a conviction is “expunged” under the Guidelines, “a court must examine the “basis” for the expunction.”^[20] This is because generally an “expunction does not alter the legality of the previous conviction and does not signify that the defendant was innocent of the crime to which he pleaded guilty.”^[21] Thus, if a “state court sentence[] is modified after [it] was served ‘for reasons unrelated to [defendant’s] innocence or errors of law” [then it] should be counted in calculating his criminal history score under the guidelines.”^[22] Consequently, to have an impact on a person’s federal sentence, Minnesota’s new expungement statutes must expunge convictions that were used to enhance their federal sentence and were related to innocence or errors of law.^[23]

First, Minn. Stat. §609A.017 deals with cases of mistaken identity, which relates to innocence and errors, because it “means a person was incorrectly identified. . .as a result of misidentification by a witness or law enforcement officer.”^[24] Thus, if a state charge is expunged under this provision, it could impact their federal sentence. Second, §609A.035 addresses pardons, which occur “[w]hen the Board of Pardons unanimously agrees to forgive a person convicted of a crime, so that any remaining penalties or punishments are removed and the convicted person is treated as innocent.” However, this type of expungement “does not alter the legality of the previous conviction and does not signify that the defendant was innocent of the crime to which he pleaded guilty.”^[25] Consequently, it likely could not be used to alter a federal sentence. Lastly, Minn. Stat. §609A.015 addresses expungements of dismissals, deferred prosecution agreements or diversions, stays of adjudication, and specific enumerated offenses deemed eligible.^[26] Dismissals of state charges would typically not be used to calculate a federal sentence because points are only added to a criminal history category under the Guidelines for each “prior sentence of imprisonment” which is defined as “any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part of the instant offense.”^[27] The remaining expungements authorized under §609A.015 are the exact types of expungements created “as a matter of grace”^[28] to “restore civil rights and give. . .a new start,”^[29] which cannot be used to alter a federal sentence. Therefore, Minnesota’s new automatic expungement statutes will have little effect on federal sentences calculated using the expunged conviction.

*Britane Hubbard is a Lead Symposium Editor for JLI

^[1]See Chapter 52––S.F.No 2909, 2023 Minn. Laws, §609A.01 (creating section §§609A.015, 609A.017, or 609A.035, under which expungements are automatic).

^[2] Id. at Subd. 5.

^[3] Id. at Subd. 3(b)(1)-(5)

^[4] The Guidelines are promulgated “by the United States Sentencing Commission” U.S.S.G §1a3.1, and “district courts are required to properly calculate and consider the guidelines when sentencing” even though they are now advisory in nature. U.S.S.G. Ch. ONE, Pt. A, Subpt. 2; United States v. Booker, 543 U.S. 220, 264 (2005).

^[5] U.S.S.G §4A1.1(a)-(e).

^[6] U.S.S.G §4A1.1, Commentary (“The total criminal history points from §4A1.1 determine the criminal history category (I-VI) in the Sentencing Table in Chapter Five, Part A.”).

^[7] See U.S.S.G, Chapter 5, Part A, Sentencing Table.

^[8] U.S.S.G. §4A1.1, Comment 1.

^[9] U.S.S.G §4A1.2(j).

^[10] Hirman v. United States, 613 F.3d 773, 776 (8th Cir. 2010) (agreeing that a defendant can challenge a federal sentence enhancement based on vacated state conviction) (quoting Johnson v. United States, 544 U.S. 295, 302–03, 125 S.Ct. 1571, 161 L.Ed.2d 542 (2005) and Daniels v. United States, 532 U.S. 374, 382, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001).

^[11] Michael D. Contino, CONG. RSCH. SERV., LSB10862, Saving Habeas: Section 2255’s Safety Valve 1 (2022), chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://crsreports.congress.gov/product/pdf/LSB/LSB10862.

^[12] Id. at 2 (describing the historical development of habeas which resulted in the current §2255 which “placed habeas jurisdiction in the sentencing court, allowing federal prisoners as well as courts a more convenient forum for seeking post-conviction relief.”)

^[13] See U.S.S.G §4A1.2(j).

^[14] United States v. Townsend, 408 F.3d 1020, 1023 (8th Cir. 2005) (citing U.S.S.G. § 4A1.2, cmt. n. 6.).

^[15] Id.

^[16] Id. at 1024.

^[17] Id. (quoting United States v. Hines, 133 F.3d 1360, 1363 (10th Cir.1998)).

^[18] United States v. Jepsen, 944 F.3d 1019, 1023 (8th Cir. 2019) (quoting United States v. Dyke, 718 F.3d 1282, 1293 (10th Cir. 2013)).

^[19] United States v. Nelson, 589 F.3d 924, 926 (8th Cir. 2009) (citing United States v. Hines, 133 F.3d 1360, 1366 (10th Cir.1998)).

^[20] United States v. Townsend, 408 F.3d 1020, 1024 (8th Cir. 2005).

^[21] United States v. Jepsen, 944 F.3d 1019, 1023 (8th Cir. 2019) (quoting Dickerson v. New Banner Inst., Inc., 103 S.Ct. 986, 986 (1983)).

^[22] Id. at 1023 (quoting United States v. Martinez-Cortez, 354 F.3d 830, 832-33 (8th Cir.), cert. denied, 543 U.S. 847, 125 S.Ct. 291, 160 L.Ed.2d 76 (2004)).

^[23] Id.

^[24] Minn. Stat. §609A.017.

^[25] United States v. Jepsen, 944 F.3d 1019, 1023 (8th Cir. 2019) (quoting Dickerson v. New Banner Inst., Inc., 103 S.Ct. 986, 986 (1983)).

^[26] See subdivisions (1)-(3) of Minn. Stat. §609A.015.

^[27] U.S.S.G §4A1.1; §4A1.2(a).

^[28] United States v. Jepsen, 944 F.3d 1019, 1023 (8th Cir. 2019) (quoting United States v. Dyke, 718 F.3d 1282, 1293 (10th Cir. 2013 )).

^[29] United States v. Nelson, 589 F.3d 924, 926 (8th Cir. 2009) (citing United States v. Hines, 133 F.3d 1360, 1366 (10th Cir.1998)).

A Civil Gideon? The Case for Universal Representation in Immigration Courts

By jlieditors

A Civil Gideon? The Case for Universal Representation in Immigration Courts

By: Meg Keiser*

In 1932, the Supreme Court began considering the right to counsel as a due process concern in Powell v. Alabama, holding that in capital cases where a defendant is unable to independently secure counsel, the Court must appoint counsel.^[1] From Powell came Johnson v. Zerbst holding that the Constitution’s Sixth Amendment guaranteed the right to counsel for criminal defendants facing federal prosecution.^[2] Continuing the fight for defendants’ right to counsel, advocates scored a major victory in 1963 with the landmark ruling in Gideon v. Wainwright, incorporating the Sixth Amendment right to counsel in criminal proceedings into the Fourteenth Amendment, applying the right to counsel at the state level.^[3]

However, the constitutional right to counsel has only been applied to the criminal context.[4] Immigration proceedings, though often closely linked to the criminal justice system, are civil proceedings.^[5] Much of immigration law is governed by the Immigration and Nationality Act, which provides that “the [noncitizen] shall have the privilege of being represented, at no expense to the Government, by counsel of the [noncitizen’s] choosing who is authorized to practice in such proceedings.”^[6] While noncitizens in immigration proceedings have a right to counsel, the noncitizen is responsible for securing representation, which is often fee-based.^[7] Representation by a lawyer is not economically feasible for most individuals, but a 2016 report revealed that 86 percent of likely voters in the U.S. supported the government appointment of an attorney to noncitizens in removal proceedings who are unable to afford one.^[8] Many immigration advocates push for change in immigration courts, with one of these changes being universal representation.[9]

Though the term is familiar in the criminal justice context, universal representation is relatively new to the immigration court context.^[10] Universal representation “refers to a system in which individuals facing prosecution by government adversaries are entitled to appointed counsel if they cannot afford to retain their own.”^[11] Currently, the system relies on pro bono attorneys, nonprofit legal services providers, and law school clinical programs to serve this population if they desire representation.^[12] This is “woefully insufficient” to meet the growing demand for immigration representation.^[13]

With nonprofits being the main vehicle to fill the gap in representation, decisions on which cases and clients to represent falls back on allocation of limited resources.^[14] Allocating these resources often entails selection of cases based on their merits, involving considerations of organizational capacity, impact on the community, and future funding.^[15] Organizations must filter through cases in one way or another, resulting in reluctancy to take cases that are unlikely to succeed.^[16] This merits-based approach, while practical in a world of limited resources, often leaves the most vulnerable and at-risk noncitizens, including detainees, without representation.^[17] Instead, a merits-blind system would allow all indigent defendants representation, regardless of the apparent strength of their claims.^[18]

The system currently in place systematically disadvantages detained noncitizens.[19] According to a 2016 report, only 37 percent of all noncitizens and 14 percent of detained noncitizens were represented in immigration court.^[20] It is difficult to win a removal case—only 5 percent of winning cases between 2007-2012 did so without representation.^[21] When represented, detained noncitizens are over ten times more likely to win their cases.^[22] Many detained individuals with strong cases cannot adequately or effectively present their cases.^[23] Detention centers are frequently located in remote areas and defendants have limited phone access, which makes it difficult for attorneys to travel to or communicate with their clients.^[24] This often makes it impractical for nonprofits to allocate resources to representing detainees. Detained noncitizens are unable to work and fee-based lawyers are often not an option.^[25] Detained individuals are also more likely to benefit from representation compared to their non-detained counterparts.^[26] Firstly, noncitizens are more likely to apply for relief and bring fewer unmeritorious claims.^[27] Secondly, detained noncitizens with counsel are more likely to be released from custody.^[28] Release from custody means lowering detention operation costs.[29] It costs at least $119 per day for each bed according to ICE estimates, and $159 per day if ICE operational costs are included.^[30] Finally, those released from custody are more likely to show up to future court dates, simultaneously increasing court efficiency.^[31] Representation is critical for noncitizens in removal proceedings, but especially detained noncitizens.[32] It is fundamentally unfair in an adversarial system to have one side well-represented—the U.S. government—and the other with a noncitizen, often with limited English and minimal understanding of the legal system.^[33] Universal representation offers a solution to help balance the playing field.

Immigration proceedings are administrative, but this label trivializes the true nature of the proceedings. Immigration proceedings have been described as “death penalty cases adjudicated in traffic court settings.”^[34] Given the high stakes in immigration court—deportation and detention—the fundamental principles of due process must be upheld.^[35] For there to be true due process, universal representation must be part of the equation.[36] It is widely acknowledged that the presence of lawyers in adversarial immigration proceedings increases the integrity of the judicial system.^[37] Ensuring due process through the use of lawyers raises the quality of justice, guards against government overreach, and increases public trust in courts.^[38] The overwhelmed immigration court system often prefers speedy resolution over just outcomes, and is a hotbed for factual and legal error in addition to due process violations.^[39] Representation is not only beneficial for the defendant.[40] One study showed that 92 percent of immigration judges agreed that when a noncitizen is represented by counsel, the judge is able to adjudicate the case more efficiently.^[41] Representation of noncitizens in immigration court provides the due process protections they are entitled to, holds the government’s counsel accountable to burdens of proof and abuses of power, and improves the integrity and efficiency of the judicial process.^[42]

Universal representation is not currently a nationwide reality but has proven successful in various programs around the country.^[43] The universal right to counsel could help address many of the inequalities, challenges, and inefficiencies in immigration court.[44] In March 2023, the American Immigration Lawyers Association advocated for Congress to fund a Department of Justice pilot program with $400 million to assist noncitizens facing removal.^[45] Efforts like this are a step in the right direction, but for a truly just process honoring due process rights, universal representation must be implemented on a national level for noncitizens facing removal.[46] Representation in immigration court is a due process concern, and the principles of Gideon must be extended to the removal proceedings context.

^[1] Powell v. Alabama, 287 U.S. 45 (1932).

^[2] Johnson v. Zerbst, 304 U.S. 458 (1938).

^[3] Gideon v. Wainwright, 372 U.S. 335 (1963).

[4] See generally Id.

^[5] Karen Berberich and Nina Siulc, Why Does Representation Matter? The Impact of Legal Representation in Immigration Court, Vera Inst. Of Just. (Nov. 2018), https://www.vera.org/downloads/publications/why-does-representation-matter.pdf.

^[6] 8 U.S.C. § 1229a(b)(4)(A).

^[7] Am. C.L. Union, The Right to Counsel (Oct. 26, 2020), https://www.aclu.org/sites/default/files/field_document/right_to_counsel_final.pdf.

^[8] Ingrid Eagly and Steven Shafer, Access to Counsel in Immigration Court, Am. Immigr. Council, (Sept. 28, 2016) https://www.americanimmigrationcouncil.org/research/access-counselimmigration-court.

[9] Berberich and Siulic, supra note 4.

^[10] Lindsay Nash, Universal Representation, 87 Fordham L. Rev. 503, 503 (2018).

^[11] Id.

^[12] Id. at 506-07.

^[13] Nat’l Immigr. L. Ctr., The Fight for Right to Counsel in Detention and Beyond (2016), https://www.nilc.org/wp-content/uploads/2016/04/Right-to-Counsel-Blazing-a-Trail-2016-03.pdf.

^[14] Nash, supra note 8 at 506-07.

^[15] Id. at 507.

^[16] Id. at 508-10.

^[17] See generally Nash, supra note 8.

^[18] Id.

[19] See generally Eagly and Shafer, supra note 7.

^[20] Id.

^[21] Berberich and Siulc, supra note 4.

^[22] Id.

^[23] Nat’l Immigr. L. Ctr., supra note 11.

^[24] Eagly and Shafer, supra note 7.

^[25] Id.

^[26] Nat’l Immigr. L. Ctr., supra note 11.

^[27] Id.

^[28] Id.

[29] Id.

^[30] Id.

^[31] Id.

[32] Id.

^[33] Id.

^[34] Am. C.L. Union, supra note 6.

^[35] Nat’l Immigr. L. Ctr., supra note 11.

[36] See Lindsay Nash, Universal Representation: Systemic Benefits and the Path Ahead, 7 J. on Migration and Hum. Sec. 103, 105 (2019).

^[37] Id.

^[38] Id.

^[39] Id.

[40] Id.

^[41] Nat’l Immigr. L. Ctr., supra note 11.

^[42] Nash, supra note 31 at 106.

^[43] See Nash, supra note 8 at 504.

[44] See Berberich and Siulic, supra note 4.

^[45] Hitha Bollu, Update on Right to Counsel in Immigration, Pro Bono Inst., (June 21, 2023) https://www.probonoinst.org/2023/06/21/update-on-right-to-counsel-in-immigration/.

[46] See Berberich and Siulic, supra note 4.

The Bystander Standard: Do Survivors of Mass Shootings Qualify for U Visas?

By jlieditors

By: Elizabeth Mansfield

The aftermath of a mass shooting is never easy. This is especially true for those survivors who have to deal with the trauma of what they’ve just experienced as well as the trauma of the American immigration system. Undocumented survivors of mass shootings may have concerns about going to the police with information because of their immigration status. The U Visa was created to assuage such concerns; however, it is unclear if and when survivors of mass shootings qualify. That, combined with the long wait period (only 10,000 U Visas can be granted every year[1] and there is currently a wait time of 64.5 months for either a “Bona Fide Determination notice or a notice that the petition will be considered for waiting list placement”[2]), may make some survivors hesitant to step forward.

What are the Qualifications for a U Visa?

The U nonimmigrant visa (U Visa) was created in 2000 with the passage of the Victims of Trafficking and Violence Protection Act.[3] It was designed “for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity.”[4] Among the relevant crimes are felonious assault, murder, and “any similar activity where the elements of the crime are substantially similar.”[5] This also includes “attempt, conspiracy, or solicitation to commit any of the above and other related crimes.”[6]

The Act was intended to “‘strengthen the ability of law enforcement agencies to detect, investigate, and prosecute’ all qualifying crimes, not merely those crimes that the government might conclude in retrospect, and in the context of later litigation, are significant.”[7] The California Northern District Court, citing the 9^th Circuit Court of Appeals, interpreted this to mean that “[i]t does not matter if the perpetrator of the crime was ultimately arrested, charged or convicted.”[8] The person applying must also be eligible to be admitted to the United States and if they are not eligible, they must apply for a I-192, Application for Advance Permission to Enter as a Nonimmigrant.[9]

Further, the harm suffered must meet the level of “substantial abuse.”[10] There is no clear-cut definition for “substantial abuse,” but the factors include, “[t]he nature of the injury inflicted or suffered; the severity of the perpetrator’s conduct; the severity of the harm suffered; the duration of the infliction of the harm; and the extent to which there is permanent or serious harm to the appearance, health, or physical or mental soundness of the victim, including aggravation of preexisting conditions.”[11] Fulfilling one or more factors does not guarantee that the qualifications for substantial abuse have been met.[12]

The Act categorizes applicants into two categories, direct victims and indirect victims. A direct victim is anyone who “suffered substantial physical or mental abuse as a result of having been a victim” of a qualifying criminal activity and “possesses information concerning” said crime.[13] An indirect victim is a direct victim’s “alien spouse, children under 21 years of age and, if the direct victim is under 21 years of age, parents and unmarried siblings under 18 years of age,” where the direct victim “is deceased due to murder or manslaughter, or is incompetent or incapacitated.”[14] Thus, an applicant must either have suffered due to a qualifying crime and offered information to the police or be the relative of a victim who is unable to provide such information and then provide the information on the victim’s behalf.

After a qualifying crime has occurred, local police and prosecutors must certify the U Visa through a Form I-918, Supplement B, “which confirms that the petitioner has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the qualifying criminal activity of which he or she is a victim.”[15] The certification process is discretionary and will be discussed in more detail in the next section.

Do Survivors Qualify for a U Visa?

As a general matter, the answer is yes, but this depends heavily on the facts of the case. For instance, it matters if the person applying was a direct or indirect victim. Whether an applicant qualifies as a direct victim is complicated by the nature of a mass shooting, where generally no one person is the target. Bystanders can still qualify as direct victims if they suffered an “unusually direct injury.”[16]

Law enforcement has a lot of leeway in deciding who qualifies as a victim. After the 2017 Las Vegas shooting at the Route 91 Harvest Music Festival, Clark County police certified for bystanders who experienced psychological harm but not physical harm, though, only after pressure from attorneys representing survivors.[17] There was more disagreement after the 2019 El Paso shooting at a Walmart. El Paso police were only willing to consider “those who suffer a physical injury in a crime as victims, while El Paso County prosecutors will consider physical and psychological trauma.”[18] Police cited the Texas Penal Code when arguing that a physical injury was a prerequisite for being a victim and all others were merely witnesses.[19] However, police are not bound to apply a state’s criteria for a victim when deciding to sign off on an I-918.[20] The Broward County Sheriff’s Office certified the I-918 of anyone associated with the Marjorie Stoneman Douglas High School shooting, refusing to follow Florida’s more stringent criteria for defining victims, but did not specify what it meant for someone to be associated with the shooting.[21]

What Barriers Exist to Obtaining a U Visa?

Survivors of the Pulse Nightclub Shooting and their family members faced additional issues. For instance, if they needed to travel abroad for reasons related to the shooting, such as for funeral preparation, then they would need a visa in order to be guaranteed return.[22] However, the lengthy time to obtain a U Visa, at least five years to receive a Bona Fide determination, makes that extremely difficult.[23]

It is also exceptionally difficult for undocumented survivors to seek aid when they need it because of the lack of “availability of physical and psychological health care for multilayered trauma, access to assistance programs, as well as financial, emotional, and religious issues affecting families and communities in their home countries.”[24] They also have to worry about deportation and impacts on their work status.[25] One undocumented survivor sought aid at a community center and ended up being referred to the U.S. Department of Immigration and Customs Enforcement after their immigration status was revealed.[26] Even applying for a U Visa is not guaranteed relief because those who have applied for a U Visa but not yet received favorable adjudication can still be subject to removal.[27]

Thus, the risks to undocumented survivors of mass shootings are high. Depending on the county, law enforcement might not certify a U Visa for anything other than a physical injury.[28] If someone is denied a U Visa, they could immediately be referred for removal.[29] And, even if they are placed on the waitlist for a U Visa, it could take years to obtain one.[30]

[1] U.S. Citizenship and Immigr. Serv., Victims of Criminal Activity: U Nonimmigrant Status (Mar. 20, 2023), https://www.uscis.gov/humanitarian/victims-of-criminal-activity-u-nonimmigrant-status.

[2] A Bona Fide Determination is not the same as receiving a U Visa but does allow applicants to receive working permits while they wait for a visa to become available. National Engagement Pre-submitted and Live Q&As Overview of T Visas and U Visas for Certifying Officials (2023) https://www.uscis.gov/sites/default/files/document/outreach-engagements/NationalEngagement-TVisaUVisaandVAWAforLawEnforcementandCertifyingAgencies-Q%26A.pdf.

[3] U.S. Citizenship and Immigr. Serv., supra note 1.

[4] Id.

[5] Id.

[6] Id.

[7] United States v. Cisneros-Rodriguez, 813 F.3d 748, 762 (citing Victims of Trafficking and Violence Protection Act, Pub. L. No. 106-386, § 1513(a)(2)(A), 114 Stat. 1464, 1533 (2000)).

[8] United States v. Valdivias-Soto, 2020 U.S. Dist. LEXIS 209572, *40 (citing United States v. Cisneros-Rodriguez, 813 F.3d 748, 761).

[9] U.S. Citizenship and Immigr. Serv., supra note 1.

[10] 8 C.F.R. § 214.14(b)(1).

[11] Id.

[12] Id.

[13] 8 C.F.R. § 214.14(b)(1).

[14] Id.

[15] 8 C.F.R. § 214.14(a)(12).

[16]U.S. Citizenship and Immigr. Serv., U Visa Filing Trends (2020), https://www.uscis.gov/sites/default/files/document/reports/Mini_U_Report-Filing_Trends_508.pdf.

[17] Mallory Falk et al., After tragedy in El Paso, a special visa could be available to some survivors, Tex. Trib. (Aug. 27, 2019), https://www.texastribune.org/2019/08/27/el-paso-shooting-victims-might-get-special-visas/.

[18] Lauren Villagran, ’Living in the shadows’: Visa could give undocumented mass shooting victims chance to help, El Paso Times (Aug. 20, 2019), https://www.usatoday.com/story/news/2019/08/20/el-paso-shooting-undocumented-victims-could-qualify-u-visa/2059941001/.

[19] Id.

[20] Id.

[21] Id.

[22] Priscilla Alvarez, What Will Happen to the Orlando Victims Who Are in the U.S. Illegally?, The Atlantic (Jun. 24, 2016), https://www.theatlantic.com/politics/archive/2016/06/orlando-shooting-undocumented-immigrants/488381/.

[23] Id.

[24] Id.

[25] Id.

[26] Judith E. Koons, Pulse: Finding Meaning in a Massacre Through Gay Latinx Intersectional Justice, 19 Scholar 1, 24 (2017).

[27] U.S. Immigr. And Customs Enf’t, Using a Victim-Centered Approach with Noncitizen Crime Victims (Aug. 8, 2023), https://www.ice.gov/factsheets/using-victim-centered-approach-with-noncitizen-crime-victims.

[28] Villagran, supra note 15.

[29] Id.

[30] U.S. Citizenship and Immigr. Serv., supra note 1.

Texas Legislature doubles down on supporting oil and gas at the cost of renewable energy post-freeze

By jlieditors

By: Wills Layton*

Background

In February of 2021, the state of Texas experienced a freeze that the electric system, consisting of electric sources such as wind and gas and more traditional oil and gas power plants, was not prepared to effectively combat.^[1] Nearly half of all Texans faced some type of disruption to water access, while 2.7 million households did not have power.^[2] Roads were coated in imperceptible ice that resulted in accidents on many major highways while animals also suffered, including the loss of over 3.8 million fish along the Gulf Coast.^[3] The freeze was a humanitarian disaster in which nearly 250 people lost their lives. Presumably, there would have been a bipartisan response to make sure no freeze could have the same impact in the future.^[4]

Politicians began to play the blame game almost instantly, with Democrats blaming the Republican-majority government, where both houses are governed by a Republican majority, for failing to prepare for a situation like a freeze. Meanwhile, Republicans blamed the move towards green energy as the culprit.^[5] Notable Texan politicians, including Texas Governor Greg Abbott, placed a majority of the blame on wind-related energy production and solar energy production and avoided blaming oil and gas-based energy.^[6] In reality, failures at natural gas plants were determined to be the largest culprit of the state-wide energy outages that plagued Texans.^[7] Additionally, the state’s independent and isolated electricity grid was unable to source energy from elsewhere, which contributed to the issue.^[8]

Brief Explanation of Texas Grid System

In the continental United States, there are three power grids – the Eastern Interconnection, the Western Interconnection, and the Texas power grid run by the Electric Reliability Council of Texas (ERCOT).^[9] This independence means that most of Texas is unable to draw from the Eastern Interconnection or Western Interconnection for either’s supply of energy, so in the event of a weather phenomenon such as the freeze, Texas could be left in the dark.^[10] Having an independent electric grid was based on a desire to avoid federal regulation, a common theme in Texas’ historically conservative led government.^[11] However, having an independent grid has allowed Texas to build power generation and transmission capacity quicker than other parts of the country and has allowed the state to experiment with deregulated energy markets.^[12]

Legislative Response

In response to the freeze, the Texas legislature aimed to support oil and gas power plants and development, simultaneously increasing obstacles for the development of renewable energy within the state.^[13] The legislature successfully passed two bills of note, Senate Bill 2627 and House Bill 1500, that are laden with incentives.^[14] Senate Bill 2627 creates a fund to incentivize the production of gas-fueled power plants by providing loans for the construction of plants, bonuses for completion of projects and connection to the main grid by 2029, and offering grants for modernizing and managing vegetation growth around electricity infrastructure in Texas outside of the main electricity market.^[15] H.B. 1500 changes the way electricity production companies can earn money in the Texas energy market, including setting a billion dollar cap on a financial tool requiring companies that sell power to pay extra money to companies that generate power and the creation of another financial tool that pays power generators that can produce power quickly.^[16] Meanwhile, other bills intended to weaken support for renewable energy, such as Senate Bill 624, which would have imposed increased permitting requirements for wind and solar power production, either died in the Senate or the House or were amended into H.B. 1500 as less-restrictive amendments impacting renewable energy.^[17]

H.B. 1500 was required to reauthorize the Public Utilities Commission (“PUC”), which regulates the state’s electric, telecommunication, and water and sewer utilities, and often includes compromised versions of other bills that did not have the support to pass on their own.^[18] The PUC is routinely reauthorized by the Texas legislature, with this reauthorization likely to last for the next dozen years.^[19] H.B. 1500 largely favors fossil-fuel powered generators and will likely lead to higher transmission costs for renewable energy sources.^[20] Transmission fees themselves have been increased by H.B. 1500, and starting in 2027 all renewable energy projects will be forced to secure expensive backup capacity through “firming” requirements contained in the bill.^[21] Other pieces of relevant legislation include Senate Bill 3, which contained a provision that would shift the financial burden of ancillary services that help ensure continuous generation to renewable energy providers.^[22]

The Texas legislature set out to cripple renewable energy production and capacity heading into the legislative session. However, environmental groups and other interested parties perceive the legislation that did pass as allowing renewable energy to dodge the proverbial bullet.^[23] Even though the toughest of restrictions on renewables did not make it through the legislative process, renewable energy was largely written out of many state incentive programs.^[24] It is widely believed that growing renewable energy reduces carbon emissions and air pollution, creates jobs, enhances the reliability and resilience of any power grid, increases affordability of energy, and increases energy independence.^[25] To actively go against the benefits that renewable energy provides to support natural gas and fossil fuels is a disservice to all who live within Texas.

Conclusion

In 2023 as Texas experienced record heat-levels and an increased demand and strain of the existing power system, solar and wind power helped stabilize the grid while producing nearly 26% of the total megawattage consumed.^[26] In fact, the strength of solar and wind power production likely helped Texans avoid inflated energy prices and possible outages.^[27] Texas renewable energy development has lowered the cost of electricity to Texans by $11 billion in 2022 and has led to the creation of over 2,500 jobs in the past five years.^[28] This has occurred at a time when automation is resulting in job loss for oil and gas extraction and has driven investment by companies looking to build renewable facilities in Texas.^[29] As of February of 2023, a majority of Texans support various methods of moving toward and supporting increased reliance on renewable energy.^[30] For example, 64% of Texans favor expanding U.S. reliance on solar power plants.^[31]

Despite the fact that renewable energy makes a positive impact on the lives of those it touches while also protecting the environment and wildlife, it is likely that the conservative-led government of Texas will continue the legislative efforts to boost fossil fuel and natural gas power generation at the cost of reducing support for renewable energy.^[32] The benefits of renewable energy are clear, yet the debate on renewables has become largely a political issue.^[33] While the leading position of Texas in the generation of renewable energy and the benefits that clean energy provides to the environment are undeniable, renewable energy has unfortunately become a scapegoat for a freeze where power outages were caused primarily by failures of oil and gas related power plants.^[34] Expect Texas to become a much less friendly environment for renewable energy investment and development should the legislature continue with its current goal of enhancing natural gas and fossil fuel production at the cost of green energy.

*Wills Layton is a Staff Member on the Journal of Law and Inequality.

^[1] Mandi Cai et al., How Texas’ power grid failed in 2021 — and who’s responsible for preventing a repeat, Texas Tribune (Feb. 15, 2022), https://www.texastribune.org/2022/02/15/texas-power-grid-winter-storm-2021/.

^[2] Neelam Bohra, Texas power outages: Nearly half the state experiencing water disruptions as power grid operator says it’s making progress, Texas Tribune (Feb. 18, 2021), https://www.texastribune.org/2021/02/18/texas-winter-storm-power-outage-ercot/.

^[3] National Oceanic and Atmospheric Administration National Centers for Environmental Information, The Great Texas Freeze: February 11-20, 2021 (Feb. 24, 2023), https://www.ncei.noaa.gov/news/great-texas-freeze-february-2021#:~:text=Though%20power%20outages%20occurred%20throughout,were%20issued%20in%20many%20counties.

^[4] Patrick Svitek, Texas puts final estimate of winter storm death toll at 246, Texas Tribune (Jan. 2, 2022), https://www.texastribune.org/2022/01/02/texas-winter-storm-final-death-toll-246/#:~:text=The%20figure%20includes%20people%20who,old%2C%20according%20to%20the%20report.

^[5] Chris Cillizza, Who’s actually to blame for the Texas power disaster?, CNN Politics (Feb. 17, 2021), https://www.cnn.com/2021/02/17/politics/texas-power-grid/index.html.

^[6] Julia Jacobo, Republicans use Texas power outages to spread false claims about green energy, ABC News (Feb. 17, 2021), https://abcnews.go.com/Politics/republicans-texas-power-outages-spread-false-claims-green/story?id=75947664.

^[7] Jon Greenberg, Natural gas, not wind turbines, main driver of Texas power shortage, Politifact (Feb. 16, 2021), https://www.politifact.com/article/2021/feb/16/natural-gas-not-wind-turbines-main-driver-texas-po/.

^[8] Reuters, Fact check: The causes for Texas’ blackout go well beyond wind turbines, Reuters (Feb. 19, 2021), https://www.reuters.com/article/idUSKBN2AJ2DZ/.

^[9] Kate Galbraith, Texplainer: Why does Texas have its own power grid?, Texas Tribune (Feb. 8, 2011), https://www.texastribune.org/2011/02/08/texplainer-why-does-texas-have-its-own-power-grid/ (updated Feb. 15, 2021).

^[10] Clifford Krauss et al., How Texas’ Drive for Energy Independence Set It Up for Disaster, N.Y. Times (Feb. 21, 2021), https://www.nytimes.com/2021/02/21/us/texas-electricity-ercot-blackouts.html?auth=login-google1tap&login=google1tap (updated May 13, 2021).

^[11] Asher Price, Why is Texas the only state with its own power grid?, Austin American-Statesman (Feb. 16, 2021), https://www.statesman.com/story/news/2021/02/16/texas-power-grid-why-state-has-its-own-operated-ercot/6765007002/.

^[12] Suzanne Russo, Texas goes it alone on electric power. That’s actually a good thing, CNN Opinion (Feb. 24, 2021), https://www.cnn.com/2021/02/24/opinions/texas-electric-power-russo/index.html.

^[13] Emily Foxhall, Fossil fuels got a boost from lawmakers aiming to fix Texas’ grid, while renewable energy escaped stricter regulations, Texas Tribune (June 5, 2023), https://www.texastribune.org/2023/06/05/texas-bills-energy-natural-gas-fossil-fuel-renewables/.

^[14] Id.

^[15] S.B. 2627, 88th Leg. (Tex. 2023), https://capitol.texas.gov/tlodocs/88R/billtext/pdf/SB02627F.pdf#navpanes=0.

^[16] H.B. 1500, 88th Leg. (Tex. 2023), https://capitol.texas.gov/tlodocs/88R/billtext/pdf/HB01500F.pdf#navpanes=0.

^[17] Id.

^[18] Jef Rouner, Texas Senate Moves to Shut Down Renewable Energy Permanently, ReformAustin (May 26, 2023), https://www.reformaustin.org/texas-legislature/texas-senate-moves-to-shut-down-renewable-energy-permanently/.

^[19] Kyra Buckley, Texas lawmakers reauthorize the state’s utility regulator after last-minute hurdle, Houston Chronicle (May 30, 2023), https://www.houstonchronicle.com/business/energy/article/texas-puc-reauthorization-passes-electric-grid-18126128.php.

^[20] Concentric Staff Writer, Texas Passed Energy Reform Bill as Heat Wave Pounded State, Concentric Energy Advisors (July 6, 2023), https://ceadvisors.com/texas-passes-energy-reform-bill-as-heat-wave-pounded-state/.

^[21] Luke Metzger, Texas Legislature subsidizes gas power plants, avoids worst attacks on renewable energy, Environment Texas (May 30, 2023), https://environmentamerica.org/texas/media-center/texas-legislature-subsidizes-gas-power-plants-avoids-worst-attacks-on-renewable-energy/.

^[22] Mitchell Ferman, Despite natural gas failures during winter storm, Texas lawmakers target renewable energy in the aftermath, Texas Tribune (Apr. 19, 2021), https://www.texastribune.org/2021/04/19/texas-renewable-energy-oil-gas/

^[23]Jeff St. John, Clean energy dodges a bullet in the Texas legislature, Canary Media (May 31, 2023), https://www.canarymedia.com/articles/politics/clean-energy-dodges-a-bullet-in-the-texas-legislature.

^[24] Asher Price, The politics of renewable energy in Texas, Axios Austin (July 6, 2023), https://www.axios.com/local/austin/2023/07/06/renewable-energy-politics-texas.

^[25] U.S. Dep’t of Energy, Off. of Energy Efficiency & Renewable Energy, Renewable Energy, https://www.energy.gov/eere/renewable-energy.

^[26] Julia Jacobo, Solar, wind energy keeping Texas power grids running amid weeks long heat wave, ABC News (July 7, 2023), https://abcnews.go.com/US/solar-wind-green-energy-keeping-texas-power-grids-running/story?id=100796136#:~:text=The%20Lone%20Star%20State%20has,reached%20an%20all%2Dtime%20high.

^[27] Id.

^[28] Russell Gold, The Texas GOP’s War on Renewable Energy, Texas Monthly (June 2023), https://www.texasmonthly.com/news-politics/texas-republican-war-on-renewable-energy/.

^[29] Id.

^[30] Patricia Ortiz, Majority of Texans support a shift to renewable energy, according to UH Hobby School study, Houston Public Media (Feb. 27, 2023), https://www.houstonpublicmedia.org/articles/news/energy-environment/2023/02/27/444811/majority-of-texans-support-a-shift-to-renewable-energy-according-to-uh-hobby-school-study-shows/ (“64% of Texans surveyed favor expanding U.S. reliance on solar power plants, 59% favor reliance on geothermal plants, and 57% favor reliance on wind turbine farms.”).

^[31] Id.

^[32] Mose Buchele, Texas state lawmakers unveil plan to curb renewable energy, subsidize natural gas, KUT News (Mar. 10, 2023), https://www.kut.org/energy-environment/2023-03-10/texas-state-lawmakers-unveil-plan-to-curb-renewable-energy-subsidize-natural-gas.

^[33] Justin Worland, Texas Could Be the World’s Clean Energy Capital—If It Wants to Be, Time (May 11, 2023), https://time.com/6278678/texas-clean-energy/.

^[34] Kevin Collier, Fact check: Renewable energy is not to blame for the Texas energy crisis, NBC News (Feb. 17, 2021), https://www.nbcnews.com/news/us-news/fact-check-renewable-energy-not-blame-texas-energy-crisis-n1258185.

Educational Integrity in Corporate Childcare: Addressing Poor Regulatory Oversight through Head Start’s Compliance Model

By jlieditors

Educational Integrity in Corporate Childcare: Addressing Poor Regulatory Oversight through Head Start’s Compliance Model

By: Anthony Alas

$60.4 billion. That’s the annual revenue from childcare in the private sector.^[1] Children have become piles of profit for corporations, and the American family demands its dividends. As long as childcare remains in corporate hands,^[2] childcare corporations must deliver on their promise to the public that children will receive high-quality, early childhood education.

Unfortunately, though unsurprisingly, corporations are not fulfilling their promise. And while corporations should not be excused from their inaction, a lack of regulatory oversight is partially to blame. To avoid risking the public objective, childcare corporations should adopt the crafty use of parents within Head Start’s compliance model. At the center-level, parents provide some of the best independent oversight and can serve as temporary checks-and-balances on corporate childcare.

Big Childcare’s Duty to the Public

“They wouldn’t allow me in the [daycare center] which I would find out later was because they didn’t want me seeing that they were 16 children over the limit. The fire chief grabbed his own heart and said some medical terms I did not understand regarding my son. My first thought was ‘I did not know my son had a heart problem’ my second thought was ‘get me to the hospital’ my third thought was ‘where were the police officers’. I ran to my car and got in it. The daycare owner got in my car with me and she drove me to the hospital. Where with[]in minutes I knew there was neglect that happened that day . . . . I quickly realized no one was watching my child that day.”^[3]

The California-based childcare center was nearly four times over the maximum teacher-to-child ratio.^[4] After a fire burned the center down, three childcare employees were arrested for child endangerment.^[5]

Teacher-to-child ratios are monitored by independent inspectors, but as of 2023, 10 percent of California centers had not received inspections since before COVID-19.^[6] In other states, 50 percent of centers remain overdue for inspections.^[7] Even when inspections are provided, states like Minnesota have an absurd 81 percent of centers violating compliance standards.^[8] In the tragedy above, three year old Deacon lost his life primarily because of the gross, horrid carelessness of childcare employees. But secondarily, the tragedy was also caused because the childcare industry is plagued by a shortage of inspectors.^[9] Families will continue paying for private childcare, and corporations will continue to provide services at a profit. This relationship needs independent oversight.

Unfortunately, licensed, center-based care dominates the private childcare market.^[10] “Big Childcare”—the top eleven publicly-traded childcare corporations—serve 7.5 million children every year through center-based care.^[11] Big Childcare must balance two objectives: (1) the financial objective to meet the bottom line, and (2) the public objective to provide high-quality childcare for long-term economic and social benefits. Childcare is a public good, and the need for childcare will never go away. When corporations profit off of a public good, they must do more to ensure that pursuit of the bottom line does not compromise the public objective—and harm children along the way.^[12]

Generally, corporations utilize internal compliance programs to avoid risks embedded in their respective industry.^[13] A corporate compliance program implements strategies through training, policies, procedures, and oversight to effectively prevent, detect, and resolve violations that put the corporation at some form of risk.^[14] In childcare, state inspectors act as the primary outside regulators.^[15]

Specifically, inspectors ensure that a licensed center meets fundamental compliance measures, such as health & safety standards, staff qualifications, teacher-to-child ratios, and general best practices.^[16] Inspectors also respond to anonymous complaints and assess a center’s self-corrective policy for violations.^[17]

Although maintaining health & safety standards alone is not sufficient to indicate high-quality programing, quality of education is indirectly tied to health & safety standards in childcare.^[18] Since inspectors ensure centers maintain these standards, inspectors are also indirectly ensuring that centers provide higher-quality early childhood education. But a lack of inspectors means Big Childcare can more easily get away with violations that impact quality of education.

Utilizing Head Start’s Non-Profit Compliance Model in For-Profit Childcare Centers

Head Start, the federally-funded, non-profit childcare program has long utilized a compliance model that avoids challenges and risks currently threatening the private childcare sector. Big Childcare’s compliance programs should adopt Head Start’s compliance model at the center-level in order to avoid the risks associated with scarce regulatory oversight.

Head Start is the most heavily regulated childcare program in the U.S. and is least likely to violate regulation requirements,^[19] follows more stringent federal regulations,^[20] and is more likely to have higher-quality education.^[21] On the other hand, for-profit childcare centers unsurprisingly have lower-quality educational services than non-profit centers and are more likely to violate compliance standards.^[22] In short, meeting basic compliance standards has the effect of improving the quality of childcare.^[23]

The Head Start compliance model holds five primary governance bodies: a Governing Body, a Policy Council, a Policy Committee, a Parent Committee, and Management Staff.^[24]

Head Start’s compliance model sets itself apart from for-profit models in that Head Start, uniquely, utilizes parents at every level of governance. For example, the Governing Body is composed of three members: one with expertise in fiscal management, one with expertise in early childhood, and a licensed attorney with industry familiarity.^[25] Other members are optional, but additional members must be reflective of the community and must include current or former parents of Head Start with expertise in either education, business administration, or community affairs.^[26] The Policy Council is responsible for the program’s short-term goals, long-term goals, and operations through policies and procedures.^[27] Parents must constitute the majority of members on the Policy Council.^[28] Every Head Start program is also required to establish a Parent Committee.^[29] Composed exclusively of parents currently enrolled in the program, the Parent Committee must be established as soon as possible in the school year.^[30] Parent Committee members are elected, and parents can also be elected to any other governance body including the high-level Policy Council, Policy Committee, and Governing Body.^[31] The Parent Committee advises management staff at the ground, center-level on implementation of policies, procedures, and services.^[32] The Parent Committee also has direct communication lines to each governance body.^[33]

In practice, parents serve two roles in this compliance structure uniquely tailored to the childcare industry. (1) Parents act as majority stakeholders because their children benefit or suffer from effective policies and procedures. The compliance model allows space for the local community to use their voice and influence the way centers operate. It is unlikely that Big Childcare brings the scrutinizing eye of parents onto their board of directors like in Head Start. However, adopting this model at the center-level allows parents, who are reflective of the local community, to tailor policies & procedures towards particular risks in the classroom or community. Likewise, (2) parents provide independent oversight of each center. In an industry in which regulatory oversight is lacking, parents can serve as effective, independent regulators. The use of parents is also cost-effective as fewer resources need to be dedicated to alternative internal-compliance mechanisms.

It is in the best interest of corporations to earn the local community’s trust. Although families never appreciate tuition costs, corporate childcare centers with happier communities means more children and tuition money. Corporate compliance programs are voluntarily implemented and supposedly driven by ethical values, so compliance programs should utilize parents—at least—within the center-level in order to fill the hole of regulatory oversight. So long as childcare remains in corporate hands, for-profit childcare corporations must avoid risking the public objective of providing high-quality early childhood education. Corporate compliance programs in a for-profit setting must be tailored to the unique needs, risks, and ethical public objectives embedded in the childcare industry. Of course, regulatory oversight of the industry needs to be improved. While that infrastructure is put into place, families have the most to lose when a center violates regulatory standards. Childcare corporations should adopt Head Start’s crafty, cost-effective use of parents to ensure that the public objective of high-quality education is met.

^[1] Grand View Rsch., U.S. Child Care Market Size, Share & Trends Analysis Report By Type (Early Care, Early Education & Daycare, Backup Care), By Delivery Type (Organized Care Facilities, Home-based Settings), And Segment Forecasts, 2023 – 2030 (2023), https://www.grandviewresearch.com/industry-analysis/us-child-care-market; see Maria Aspan, Is ‘Big Day Care’ The Solution to America’s Childcare Woes—Or is it Risky to Mix Profits and Toddlers?, Fortune (Aug. 23, 2021 4:00 AM) (noting that the childcare market was worth $47.2 billion only a few years ago), https://fortune.com/2021/08/23/daycare-childcare-costs-infrastructure-bright-horizons-kindercare-learning-care-group/#:~:text=Call%20them%20Big%20Day%20Care,dominated%20by%20center%2Dbased%20care.

^[2] Adam Harris, Private Equity has its Eyes on the Child-Care Industry, The Atlantic (Feb. 21, 2024) https://www.theatlantic.com/ideas/archive/2024/02/private-equity-childcare/677511/.

^[3] Dani Morin, Deacon’s Story, Dani Morin (last accessed Feb. 16, 2023), https://danimorin.com/2022/01/28/deacons-story/.

^[4] Id.

^[5] 3 Fontana Daycare Staff Arrested in Connection to Child’s Death, Abc 7 (Nov. 9, 2016), https://abc7.com/deacon-morin-danielle-fontana-daycare-death-jimenez-family/1599651/.

^[6] Madison Hall, More Than 14,000 Licensed Childcare Centers in the U.S. are Behind on State-Mandated Inspections, Bus. Insider (Oct. 17, 2023 11:00 PM), https://www.businessinsider.com/childcare-centers-are-behind-on-inspections-2023-10.

^[7] Id.

^[8] Id.

^[9] Id.

^[10] Jiashan Cui & Luke Natzke, Early Childhood Program Participation: 2019, Nat. Cen. for Educ. Stat. 3 (Inst. of Educ. Sci., 2019) (stating that 62% of children attended center-based care before attending Kindergarten); Grand View Rsch., supra note 1 (“The organized care facilities segment accounted for the highest revenue share of 71.7% in 2022 . . . . The rising number of working parents, technological advancement, and growing funding for supporting quality early education drive segment growth.”).

^[11] Elliot, Haspel, Childcare is in Chaos. Private Equity and For-Profit Chains are Swooping in., New Republic (Oct. 28, 2022), https://newrepublic.com/article/168322/child-care-daycare-private-equity-for-profit#:~:text=Together%2C%20the%20top%2011%20chains,center%2Dbased%20care%20every%20day.

^[12] See Lisa M. Fairfax, Achieving the Double Bottom Line: A Framework for Corporations Seeking to Deliver Profits and Public Services, 9 Stan. J. of L., Bus. & Fin. 199, 239 (2004); see also Morin, supra note 3.

^[13] Sung Hui Kim, Gatekeepers Inside Out, 21 Georgetown J. of Legal Ethics 411, 450 (“To ensure that employees carry out their corporate duties in ways that do not expose the company to unreasonable risks of criminal or civil liability, inside counsel’s duties have formally expanded to include training employees about potential liability . . . . planning and design of corporate compliance programs (e.g., creating standard operating procedures and protocols for dealing with consumer product complaints), and monitoring ongoing compliance practices (i.e., receiving periodic reports and pursuing actions which pose the threat of corporate liability).”); Miriam Hechler Baer, Governing Corporate Compliance, 50 Bos. Coll. L. Rev. 949, 995 (“Even better for the [compliance] industry, compliance begets more compliance. Once a corporation hires compliance experts to design and implement a compliance program, it will likely also hire experts to audit and monitor the program. Manned by lawyers and encouraged by the government’s stance on self-regulation, the compliance industry grows to meet the corporation’s growing need to design and manage an internal bureaucracy.”).

^[14] See Baer, supra note 13, at 949 (explaining corporate compliance as “internal programs that corporations adopt in order to educate employees, improve ethical norms, and detect and prevent violations of law”.).

^[15] Admin. For Child. & Fam., Monitoring and Inspections, Off. Of Child Care (last accessed Feb. 1, 2024), https://childcare.gov/consumer-education/monitoring-and-inspections.

^[16] See, id.

^[17] Id.

^[18] See Admin. For Child. & Fam., Look, Listen and Ask: Tips for Choosing a Quality Child Care Center, Off. Of Child Care (last accessed Mar. 16, 2024), https://childcare.gov/sites/default/files/2022-04/Choosing-a-Child-Care-Center.pdf (noting that key features of a quality child care center include meeting a variety of basic health & safety standards); V. Joseph Hotz & Mo Xiao, The Impact of Regulations on the Supply and Quality of Care in Child Care Markets, Am. Econ. Rev. (Jun. 30, 2011), (“Thus, our evidence indicates that the imposition of either [minimum staff-child ratio requirements, minimum educational requirements, and certain minimum safety standards] increases the quality of center-based care in local markets. This is consistent with the quality assurance effect dominating the cost-of-quality effect among typical consumers and with the regulation of these inputs actually improving the quality of child care. It is also consistent with Ronnen’s prediction that imposing minimum quality standards will not only reduce the provision of low-quality services but also will generate strategic increases in the quality provided by already high-quality centers.”).

^[19] U.S. Dep. of Health and Hum. Servc., Data Brief on Child Safety in Head Start Programs, Off. Of Head Start, (Last updated Apr. 17, 2023), https://eclkc.ohs.acf.hhs.gov/data-ongoing-monitoring/article/data-brief-child-safety-head-start-programs, (stating that less than 1% of Head Start locations were cited for child safety issues).

^[20] Maia C. Connors & Allison H. Friedman-Krauss, Varying States of Head Start: Impacts of a Federal Program Across State Policy Contexts, 10 J. of Rsch. on Educ. Effectiveness 675, 694 (2017), (noting that, although actual practices vary across programs and states, Head Start is required to comply with federal performance standards that are more stringent than state licensing requirements, and the federal standards are associated with higher quality of program).

^[21] See Laura Sosinsky, For-profit/Nonprofit Differences in Center-Based Child Care quality: Results from the National Institute of Child Health and Human Development Study of Early Child Care and Youth Development, 28 J. Of Applied Dev. Psych. 390, 393 (Sep. 2007) (stating that the highest quality care was provided by public agencies, while the lowest quality was provided by for-profit chains with minimal regulations).Sosinsky, supra note 17 at 393 (stating that the highest quality care was provided by public agencies, while the lowest quality was provided by for-profit chains with minimal regulations).

^[22] Sosinsky, supra note 21 at 393 (stating that the highest quality care was provided by public agencies, while the lowest quality was provided by for-profit chains with minimal regulations).

^[23] V. Joseph Hotz & Mo Xiao, The Impact of Regulations on the Supply and Quality of Care in Child Care Markets, Am. Econ. Rev. (Jun. 30, 2011), (“Thus, our evidence indicates that the imposition of either [minimum staff-child ratio requirements, minimum educational requirements, and certain minimum safety standards] increases the quality of center-based care in local markets. This is consistent with the quality assurance effect dominating the cost-of-quality effect among typical consumers and with the regulation of these inputs actually improving the quality of child care. It is also consistent with Ronnen’s prediction that imposing minimum quality standards will not only reduce the provision of low-quality services but also will generate strategic increases in the quality provided by already high-quality centers.”).

^[24] See 42 U.S.C. § 9837.

^[25] 42 U.S.C. § 9837(c)(1)(B).

^[26] 42 U.S.C. § 9837(c)(1)(B).

^[27] 42 U.S.C. § 9837(c)(2)(D).

^[28] 42 U.S.C. § 9837(c)(2)(B).

^[29] 45 C.F.R. § 1301.4(a).

^[30] 45 C.F.R. § 1301.4(a).

^[31] 45 C.F.R. § 1301.4(a).

^[32] 45 C.F.R. § 1301.4(b).

^[33] 45 C.F.R. § 1301.4(b).

New Legislation Seeks to End Marriage Penalty for Supplemental Security Income

By jlieditors

By: Skylar Mayhew*

Every month, people with disabilities are eligible to receive Supplemental Security Income (SSI).[1] SSI is a disability program funded and administered through the Social Security Administration.[2] The amount that a person with a disability receives each month can be lowered depending on several factors.[3] One factor that troubles advocates is the substantial difference in the maximum amount disbursed to a couple versus an individual.[4]

An individual receiving SSI can receive up to $943 per month, whereas a couple receiving SSI can receive $1,415.[5] Thus, the benefits of a couple who both receive SSI are decreased by 25 percent.[6] It is not just marriage that docks these benefits, but also if “two individuals who live in the same household” are holding themselves out as a married couple.[7] Therefore, any couple who receives disability benefits, who are married, hope to be married or who live like a married couple suffers under the current regime.

As the law stands now, people who receive SSI are forced to choose between marriage or living as a couple and their benefits.[8] This could all change with the Eliminating the Marriage Penalty in SSI Act (EMPSA Act) that was introduced in January 2024.[9] The Act targets the 25 percent deduction of benefits for couples receiving SSI.[10] The Act has been endorsed by numerous disability-rights organizations such as Autism Speaks, Autism Society of America, National Down Syndrome Congress, National Down Syndrome Society, Gigi’s Playhouse Down Syndrome Achievement Centers, Muscular Dystrophy Association, and Cure Spinal Muscular Atrophy.[11]

The Act was introduced by Representative David Valadao, R-Calif.[12] Rep. David Valadao was inspired by the Kern Regional Center, a nonprofit contracted by California to support individuals with developmental disabilities, and by a phone call from one parent with a disabled child, Kelly Kulzer-Reyes.[13] Kulzer-Reyes informed Rep. Valadao of the SSI reduction that occurs when adults, who both receive SSI, marry.[14] Kulzer-Reyes’ goal is to ensure her daughter Amelia, who receives SSI, is afforded the rights that she deserves to have when she grows up.[15]

Amelia and her family are not the only individuals who worry or are affected by the marriage penalty in receiving SSI. Similar sentiments were shared by the Institute on Community Integration at the University of Minnesota back in 2010.[16] One story came from Kurtlyn, who receives SSI because she cannot work full time due to her mental illness.[17] Kurtlyn did not want to be a financial burden on her husband because she loses her Social Security.[18] Kurtlyn shares the same opinion as Kulzer-Reyes, which is that people with disabilities fall in love and should not miss out on marriage because of the fear of losing their benefits.[19] Furthermore, the president of Kern Regional Center, Tracey Mensch, was married and penalized for being married from her benefits.[20] It is clear that while the marriage penalty might not be a widely publicized issue, it is affecting individuals, couples, and families of people with disabilities.

It is not just SSI beneficiaries and their families who endorse this legislation. Other Congressmembers have endorsed with this same sentiment, including Congresswoman Susie Lee, who stated that “[n]o one should be penalized for getting married, especially when it comes to accessing the critical benefits that so many people in our community rely on….”[21] As more political voices join the already outspoken disability rights advocates, there is a shared hope that the dreams of people with disabilities to be married, without having to make a financial sacrifice, will be realized.

This is not the first time that a bill like this has been introduced.[22] In 2019, the Marriage Access for People with Special Abilities Act (MAPSA Act) was introduced in Congress.[23] Similar to the new legislation, this bill also disregarded marital status when calculating SSI benefit amounts.[24] Proponents of the EMPSA Act have the same goals as the proponents of the MAPSA Act.[25] One writer for the National Down Syndrome Society, Kayla, wrote about MAPSA.[26] She wrote how one of her long-term goals was “to get married someday and start a family.”[27] Because of the current structure of SSI, Kayla knows that “if two individuals with Down syndrome or other intellectual disabilities decide to get married their incomes will be combined and will then be above…maximum income levels [resulting in a loss of] much needed benefits like social security…”[28] MAPSA, like the current legislation, aimed to change that.

MAPSA was introduced in 2019, but has yet to be passed.[29] Therefore the need for the EMPSA Act is apparent. However, the same problem arises with this Act as MAPSA. Ninety percent of bills will not pass because they get buried in committees and subcommittees due to bipartisan infighting.[30] MAPSA has not moved forward since it was referred to a Subcommittee on Social Security and a House Committee on Ways and Means in 2021.[31] An important difference that could help is that MAPSA excludes a spouse’s income when determining SSI eligibility.[32] Members of Congress likely had a problem with the fact that a wealthy family could receive benefits despite the fact that they may not have a need.[33] The EMPSA Act gets rid of the issue by only eliminating only the decrease in benefits for spouses who both receive SSI and not the consideration of a spouse’s income entirely.

There is still the concern about whether Congress is willing to expend more funds on SSI if the 25 percent marriage penalty is eliminated. Political pressure from Americans has mounted over the fear of Social Security funds running dry.[34] It is unclear if Congress would really be willing to spend to more of the Social Security funds to support the disability community. [35] This may be another political play that will never be passed and stay in legislation limbo. It is hard to forecast what will be done, but with 2024 being an important election year, this is the perfect time for disability rights advocates to raise their voices and mobilize in support of the cause.

*Skylar Mayhew is a Staff Writer on the Journal of Law and Inequality.

[1] Supplemental Security Income, Soc. Sec. Admin., https://www.ssa.gov/ssi (last visited Jan. 29, 2024).

[2] Overview of Social Security Disability Programs: SSI and SSDI, SAMHSA, https://soarworks.samhsa.gov/article/overview-of-social-security-disability-programs-ssi-and-ssdi#:~:text=There%20are%20two%20SSA%20disability,by%20the%20Social%20Security%20Administration (last visited Feb. 19, 2024).

[3] How much you could get from SSI, Soc. Sec. Admin., https://www.ssa.gov/ssi/amount (last visited Jan. 29, 2024) (Income, a job, unemployment payments, pensions and living in someone’s home can all impact the amount received in Social Security Income).

[4] Shaun Heasley, Lawmakers Want To End SSI Marriage Penalty For People With Developmental Disabilities, Disability Scoop (Jan. 26, 2024), https://www.disabilityscoop.com/2024/01/26/lawmakers-want-to-end-ssi-marriage-penalty-for-people-with-developmental-disabilities/30716/.

[5] Soc. Sec. Admin., supra note 3.

[6] Heasley, supra note 4; see also Richard Blakus & Susan Wilschke, Treatment of Married Couples in the SSI Program, Issue Paper No. 2003-01 (Dec. 2003), https://www.ssa.gov/policy/docs/issuepapers/ip2003-01.html#:~:text=Marital%20Status%20in%20SSI&text=The%20act%20also%20requires%20that,purposes%20of%20the%20SSI%20program (“Benefits for a married couple, both of whom receive SSI and have no other income, amount to 25 percent less than the total they would receive if they were living together but not as husband and wife.”).

[7] Soc. Sec. Admin., SI 00501.152 (Jan. 5, 2024), https://secure.ssa.gov/poms.nsf/lnx/0500501152.

[8] Heasley, supra note 4.

[9] Id..; H.R. 7055, 118th Cong. (2024) https://www.congress.gov/bill/118th-congress/house-bill/7055?s=1&r=20.

[10] Id.

[11] Press Release, Congressman Valadao, CONGRESSMAN VALADAO ANNOUNCES BILL TO REMOVE MARRIAGE PENALTY FOR SUPPLEMENTAL SECURITY INCOME RECIPIENTS (Jan. 23, 2024), https://valadao.house.gov/news/documentsingle.aspx?DocumentID=1026; Cure Spinal Muscular Atrophy, Eliminate the Social Security Marriage Penalty for People with SMA and other Disabilities, Voter Voice, https://www.votervoice.net/mobile/CureSMA/Campaigns/99603/Respond (last visited Jan. 29, 2024).

[12] Rep. David Valadao (@RepDavidValadao), Twitter (Jan. 23, 2024, 4:24 PM), https://twitter.com/RepDavidValadao/status/1749921006855098854 (“Individuals with intellectual disabilities shouldn’t be punished for getting married, but sadly that’s exactly what’s happening with their reduction in SSI benefits. I introduced the Eliminating the Marriage Penalty in SSI Act to right this wrong.”).

[13] Melanie Nguyen, Valadao proposes bill to eliminate ‘marriage penalty’ for disabled receiving benefits, Bakersfield (Jan. 23, 2024), https://www.bakersfield.com/news/valadao-proposes-bill-to-eliminate-marriage-penalty-for-disabled-receiving-benefits/article_1629caf8-ba43-11ee-babf-475dd686de27.html; WHO IS KERN REGIONAL CENTER, Kern RC, https://kernrc.org/about-us/who-is-kern-regional-center/ (last visited Jan. 29, 2024) (The Kern Regional Center is contracted by the state of California to support individuals with disabilities and their families.).

[14] Id.

[15] Id.

[16] B.J. Stasio, People with Disabilities and the Federal Marriage Penalties, ICI what is the ICI? (2010), https://publications.ici.umn.edu/impact/23-2/people-with-disabilities-and-the-federal-marriage-penalties.

[17] Id.

[18] Id.

[19] Id.; Nguyen, supra note 13.

[20] Nguyen, supra note 13.

[21] Congressmen Valadao, supra note 11.

[22] MAPSA Act, H.R. 761, 117th Cong. (2019) https://www.congress.gov/bill/117th-congress/house-bill/761.

[23] Id.

[24] Id.

[25] Kayla McKeon, Kayla’s Perspective on MAPSAA, Nat’l Down Syndrome Soc. (Feb. 25, 2021), https://ndss.org/kayla-mapsa.

[26] Id.

[27] Id.

[28] Id.

[29] MAPSA Act, supra note 22.

[30] WCOO News, Good Question: Why Is It So Hard To Pass A Law?, CBS News (June 23, 2016, 10:56PM), https://www.cbsnews.com/minnesota/news/good-question-passing-bills/.

[31] MAPSA Act, supra note 22.

[32] Kayla McKeon, Congress can end the marriage penalty for people with intellectual disabilities, Wash. Exam’r (June 27, 2019, 12:00 AM), https://www.washingtonexaminer.com/policy/healthcare/2716782/congress-can-end-the-marriage-penalty-for-people-with-intellectual-disabilities/.

[33] MAPSA Act, supra note 22.; It is important to note that this concern ignore the fact that persons with disabilities should have their own money and not be dependent on a spouse, as access to a money can impact power in a relationship. See How does money impact a relationship?, Sheperds Friendly (Jan. 24, 2018), https://www.shepherdsfriendly.co.uk/resources/how-does-money-impact-relationships/.

[34] Aliss Higham, Social Security Cuts Worry Most Americans, Newsweek (Feb. 16, 2024, 11:17 AM), https://www.newsweek.com/social-security-cuts-poll-1870732#:~:text=The%20poll%2C%20conducted%20exclusively%20for,what%20current%20seniors%20can%20claim.

[35] Greg Iacurci, Social Security trust funds are running dry. Here are 4 things to know, CNBC (Sept. 11, 2023, 3:39 PM), https://www.cnbc.com/2023/09/11/social-securitys-trust-funds-are-running-dry-heres-what-to-know.html.

Contingency Fee Bans For Divorce Proceedings: Ethical Considerations or Patriarchal Protections?

By jlieditors

By: Rachel Emendorfer*

Marriage. What starts in hopeful beginnings often ends in bitter legal battles. In the United States, over 600,000 divorces occur each year.[1] But the prevalence of divorce in this country should not be mistaken for the ease of obtaining one. Ending your marriage can not only take months to accomplish but may also drain your bank account in the process. The average cost of a divorce in the United States currently ranges from $15,000 – $20,000, with most of this money going towards your attorney fees.[2]

With this hefty price tag, money is frequently the forefront consideration when deciding to get a divorce. This is especially the case for women, with many claiming they stay in their marriage due to financial insecurity.[3]

Despite improvements in recent years, the wage gap is still alive and well. In 2022, women earned about 82 cents for every dollar earned by men.[4] Additionally, in a heterosexual marriage, women still carry the brunt of childrearing responsibilities,[5] which in turn reduces their income by decreasing time spent at their paying job. Consequently, the cost of a divorce, coupled with the socioeconomic realities for women, create a situation where many women are unable to finance a divorce attorney, thus binding women to their marriage or making them reliant on their husband to fund the divorce.

Insufficient funds barring access to legal representation is a problem that is relatively unique to the realm of domestic matters. This is because the contingency fee payment option, which is typically available in most legal disputes, is not available for those seeking a divorce.[6] A contingency fee allows a client to contract their attorney’s payment contingent upon the outcome of their lawsuit, typically involving the attorney agreeing to receive a percentage of their client’s award from either winning or settling the case.[7] Despite its usefulness, the contingency fee payment structure has been barred from divorce proceedings since its introduction into the United States’ court system.

The contingency fee payment structure, introduced in the 1800’s as a way to make the court systme more accessible to plaintiffs without reserves of cash, quickly grew in popularity in the United States.[8] However, the use of a contingency fee to secure a divorce was, from the start, a concept the courts vehemently opposed.[9]

In the nineteenth century, married women were, from the law’s perspective, the property of their husbands.[10] They had no independent legal identity and were considered incapable of entering contracts.[11] This treatment blocked married women from accessing legal counsel to obtain a divorce, effectively making them prisoners in unwanted marriages.[12] Even as married women gained legal recognition, the financial barrier to obtaining a divorce still acted as a hurdle to securing a divorce. Desperate to escape their marriages, many women tried to get around their lack of funds by entering a contingent fee arrangement with their attorney.

In Jordan v. Westerman, Mrs. Jordan did just that in an effort to escape her husband’s habitual beatings.[13] Because her husband controlled the family finances, Mrs. Jordan lacked independent funds to pay her divorce attorney.[14] Thus, Mrs. Jordan agreed to pay her attorney a portion of what she received from the divorce decree.[15]

The Michigan Supreme Court rejected this contingency fee arrangement and determined it to be void due to public policy.[16] The Court claimed that “families shall not be broken up for inadequate causes” and allowing such payment structures would prevent reconciliation of the couple.[17] To support this reasoning, the Court voiced concern that making the attorney’s payment contingent on the divorce would induce attorneys to alienate the couple and press the divorce to completion regardless of their client’s interests.[18] This policy rationale has been repeated in courts throughout history, continuing to block women from securing legal representation for a divorce.[19]

This case law eventually made its way into the modern-day rules governing attorneys. The Model Rules of Professional Conduct expressly prohibits an attorney from entering a contingent fee arrangement to secure a divorce.[20] While the American Bar Association does not provide reasoning for this ban,[21] some scholars suggest the reasoning mirrors that of historical caselaw.[22] Specifically, allowing contingency fees would prevent reconciliation of the marriage and attorneys would be tempted to take advantage of “‘emotional,’ economically dependent” parties for their own financial gain.[23]

At first glance the ethical twist on the contingency fee ban may appear reasonable. Of course, society does not want lawyers to take advantage of clients during an emotional time in their lives. And, of course, society does not want lawyers to force a legal result that would be contrary to their client’s interests.

But if these are valid concerns for contingency fees in divorce, why aren’t they valid concerns for other legal disputes?

Take for example, personal injury cases where contingency fees are most common.[24] Is it not likely that people in these situations are at a vulnerable and emotional time in their life? Is it not a concern that an attorney would seek to take advantage of this person, by potentially pushing their case to trial in hopes of a larger damages award?

Asking these questions demonstrate that mere ethical concern cannot be the sole basis for banning contingency fees in divorce proceedings. If it were, ethical concerns would mandate a ban on contingency fees for all legal disputes. Therefore, there must be something unique about divorce that necessitates this special treatment.

While courts allege reverence for marriage as a reason for the ban, the legal system’s historical treatment of women suggests that the ban operates as a paternalistic protection rather than as an ethical consideration. Protective paternalism–the belief that women are dependent, incapable individuals who must be protected[25]–was very much present in the historical treatment of women. Considered the property of their husband, the legal system has historically operated under the premise that women are not capable of making their own decisions. The ban on contingency fees for divorce proceedings is reminiscent of these early paternalistic beliefs because it suggests women are not capable of understanding the risks of a contingency fee arrangement and entering the agreement anyways.

But, regardless of the reasoning behind the contingency fee ban, the disparate impact it has on women in physically and financially abusive relationships dictates the elimination of the rule. Recent research shows that one in four women will experience domestic violence in a relationship.[26] Further, 99% of women in abusive relationships will also be subject to financial abuse.[27] Whether experiencing both forms of abuse, or suffering from only one, women in these relationships are likely to find the task of getting a divorce almost insurmountable. And the ban on contingency fees for obtaining a divorce makes this task even more difficult and to many, impossible.

While likely not the intended result, the consequences of this ban are concerning. With a troubling history and ongoing paternalistic functions, it is time for the legal industry to reevaluate the purpose of this rule and consider whether it is doing more harm than good.

*Rachel Emendorfer is the Lead Note and Comment Editor of JLI Vol. 42.

[1] Chauncey Crail, How Much Does a Divorce Cost In 2024?, Forbes https://www.forbes.com/advisor/legal/divorce/how-much-does-divorce-cost/.

[2] Id.

[3] Stacy Francis, Money stress traps many women into staying in unhappy marriages, CNBC (Aug. 13, 2019) https://www.cnbc.com/2019/08/13/money-stress-traps-many-women-into-staying-in-unhappy-marriages.html;

[4] Rakesh Kochhar, The Enduring Grip of the Gender Pay Gap, Pew Research Center (March 1, 2023) https://www.pewresearch.org/social-trends/2023/03/01/the-enduring-grip-of-the-gender-pay-gap/#:~:text=The%20gender%20pay%20gap%20%E2%80%93%20the,80%20cents%20to%20the%20dollar.

[5] Id.

[6] Model Rules of Prof’l Conduct r. 1.5(c) (Am. Bar. Ass’n, 2020).

[7] Model Rules of Prof’l Conduct r. 1.5(c) (Am. Bar. Ass’n, 2020).

[8] Peter Karsten, Enabling the Poor to Have Their Day in Court: The Sanctioning of Contingency Fee Contracts, a History to 1940, 47 DePaul L. Rev. 231, 234-49 (1998).

[9] Id. at 249.

[10] Zachary Potter, Ridding the Family-Law Canon of the Relics of Coverture: The Due Process Right to Alternative Fee Arrangements in Divorce, Yale L. J. Forum, Nov. 5, 2021, at 298.

[11] Id.

[12] Id. at 299.

[13] Jordan v. Westerman, 62 Mich. 170, 172 (Mich. 1886).

[14] Id.

[15] Id. at 173-174.

[16] Id. at 180.

[17] Id.

[18] Id.

[19] Denise Fields, Risky Business or Clever Thinking? An Examination of The Ethical Considerations of Disguised Contingent Fee Agreements in Domestic Relations Matters, 75 UMKC L. Rev. 1065, 1071-72 (2006) (citing In re Smith, 254 P. 2d 464, 468 (Wash. 1953); Opperud v. Bussey, 46 P. 2d 319, 322 (Okla. 1935); McInerney v. Massasoit Greyhound Ass’n, 269 N.E.2d 211, 218 (Mass. 1971)).

[20] Model Rules of Prof’l Conduct r. 1.5(d) (Am. Bar. Ass’n, 2020).

[21] Model Rules of Prof’l Conduct r. 1.5 Fees – Comment (Am. Bar. Ass’n, 2018) https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_5_fees/comment_on_rule_1_5/.

[22] Zachary Potter, Ridding the Family-Law Canon of the Relics of Coverture: The Due Process Right to Alternative Fee Arrangements in Divorce, Yale L. J. Forum, Nov. 5, 2021, at 296; Carl Ray Grantham Jr., Why Does This River Flow—In Re Cooper and the Continued Prohibition on Contingency Fees in Divorce Actions, 65 N.C. L. Rev. 1378, 1381 (1987).

[23] Zachary Potter, Ridding the Family-Law Canon of the Relics of Coverture: The Due Process Right to Alternative Fee Arrangements in Divorce, Yale L. J. Forum, Nov. 5, 2021, at 296.

[24] Contingency Fee, Cornell L. Info. Institute, https://www.law.cornell.edu/wex/contingency_fee#:~:text=Contingency%20fees%20are%20particularly%20common,50%25%20of%20the%20recovery%20amount (last accessed Feb. 12, 2024).

[25]L.Estevan-Reina, et. al., Feminist or Paternalistic: Understanding Men’s Motivations to Confront Sexism, 10 Front. Psychol., Jan. 16, 2020 https://www.frontiersin.org/journals/psychology/articles/10.3389/fpsyg.2019.02988/full.

[26] M. R. Huecker, et. al., Domestic Violence, Nat’l Library of Medicine, April 9, 2023 https://www.ncbi.nlm.nih.gov/books/NBK499891/#:~:text=According%20to%20the%20CDC%2C%201,sexual%20violence%20during%20their%20lifetimes. ;

[27] Adrienne E. Adams, Measuring the Effects of Domestic Violence on Women’s Financial Well-Being, Center for Financial Security U. Wisconsin – Madison, https://centerforfinancialsecurity.files.wordpress.com/2015/04/adams2011.pdf.

Posts by jlieditors

Volume 43, Issue 2 (2025)

Breonna Taylor is Not Forgotten: Department of Justice Finds Civil Rights Violations by the Louisville Metro Police Department and the Louisville/Jefferson County Metro Government

Expungement: The Missing Federal Piece

“Reasonable Efforts” Inequities in Minnesota Child Welfare Removals

Examining the Constitutionality of Targeted Residential Protest Bans

CALLING ALL ASYLUM SEEKERS: PLEASE, TELL US YOUR TRAUMA, OVER AND OVER AGAIN

Prescribing “Justice”? How the Court’s Stay in Alliance for Hippocratic Medicine Demonstrates the Dangerous Growth of Policy-Driven Adjudication in Federal Courts

Long-Term Discrimination: Addressing the Disparate Treatment of Claimants with Mental Disabilities in Long-Term Disability Insurance

Inequality as the Vertical partiality of Public Administration: Empirical Evidence from the Judiciary

Are Infant Safe Haven Laws Fulfilling their Intended Purpose?

Right to Spiritual Advisors During Executions: Missouri’s Latest Refusal and the Supreme Court’s Evolving Jurisprudence

Birthright Citizenship: An Unqualified Right?

The Texas Crown Act Policy Woes: Facially Neutral Grooming and Appearance Policies of Texas School Districts

The Criminalization of Pregnancy: Etowah County, Alabama Should Raise Alarms for Women

Punished Twice: Opioid Users Increasingly Handed Harsh Sentences for Friends’ Deaths

Level Setting Web Accessibility Expectations

By: Mike Fadden*

Background

Legal Background

Interpretation by the Courts

Advice for Businesses

Conclusion

Oregon’s Yamhill County v. Real Property Commonly Known as 11475 NW Pike Road and The Cracks Forming in the Legal Foundation of Civil Forfeiture Laws

Taking Out the Trash: Is Biden’s Plan for Eliminating Junk Fees an Effective One?

Will Minnesota’s New Automatic Expungement Laws Have an Effect on Federal Sentences?

A Civil Gideon? The Case for Universal Representation in Immigration Courts

The Bystander Standard: Do Survivors of Mass Shootings Qualify for U Visas?

Texas Legislature doubles down on supporting oil and gas at the cost of renewable energy post-freeze

Educational Integrity in Corporate Childcare: Addressing Poor Regulatory Oversight through Head Start’s Compliance Model

New Legislation Seeks to End Marriage Penalty for Supplemental Security Income

Contingency Fee Bans For Divorce Proceedings: Ethical Considerations or Patriarchal Protections?