Adequate Access to Court: The Hurdles to Prison Litigation in Federal Court when Considering the Effect of PLRA and Limitations of LSC. By: Ashley Austin

Adequate Access to Court: The Hurdles to Prison Litigation in Federal Court when Considering the Effect of PLRA and Limitations of LSC.

By: Ashley Austin

Congress enacted the Omnibus Consolidated Rescissions and Appropriations Act of 1996 on April 26, 1996.[1] The purpose of this Act was to “mak[e] appropriations for fiscal year 1996 to make a further downpayment toward a balanced budget, and for other purposes” which seemed to be a typical fiscal bill; however, this Act would change the lives of hundreds of thousands of incarcerated individuals across the United States.[2] Contained within Title VIII of this act, the Prison Litigation Reform Act of 1995 was also enacted but received little acknowledgement.[3] Less than a year after this act, a regulation concerning the services provided by the Legal Services Corporation further changed prisoners’ access to the court system.[4] These two seemingly small enacted rules would have massive impacts on the civil rights of prisoners, specifically the ability to challenge conditions without needing to afford an attorney.

Although prisoners lose many rights upon incarceration, one right that remains protected while in custody is the right to access courts.[5] This right, grounded in the Fourteenth Amendment’s Due Process Clause, ensures that violations of constitutional rights can be addressed and further violations can be prevented.[6] However, the extent of this right in most cases is limited to providing inmates with reasonable access to law libraries and the use of materials (such as paper and pencils) to prepare their submissions to the court.[7] While it is only required that reasonable access to a law library is required, the Court in Bounds speaks in dicta about the usefulness and possible benefits of having legal counsel assist prisoners in their civil cases.[8] The language in Bounds that seems to push for a more accessible court system is but a dream. After 1997, it has been almost impossible for credible claims coming from correctional setting to make it to court for consideration on the merits.

Many factors are in place that block a prisoner’s access to having their concerns heard in court: 1) the existence of complicated administrative remedies, 2) the Prison Litigation Reform Act (PLRA), 3) financial hurdles of many prisoners, and 4) the lack of legal aid provided to assist prisoners. Each of these aspects will be discussed in part below, with primary attention on the PLRA and lack of legal aid for prisoners. Additionally, possible areas of improvement will be provided upon conclusion.

Administrative remedies, or grievances as they are often called in prisons, in theory are quick and easy ways for the administration within the prison to address the concerns and issues of those housed within the prisons. However, many criticisms regarding the adequacy of the grievance system have been pointed out by attorneys focusing on prison litigation that have yet to be addressed. For instance, the grievance system at place in prisons may be entirely inadequate or unfair for those using the system. If grievance forms are unavailable to the inmates, the system has limited time response periods making successful grievances impossible, or if the inmates are otherwise dissuaded from using the grievance system, the system is entirely without a basis and fails to be useful in addressing issues within the prison.[9]

In other areas of the law, there is no requirement for administrative remedies to be exhausted prior to bringing suit for violations of constitutional law.[10] However, after the implementation of PLRA, the requirement for prisoners to exhaust all possible administrative remedies was made clear. The PLRA states that “[n]o action shall be brought with respect to prison conditions . . . or any other Federal law, by a prisoner . . . until such administrative remedies as are available are exhausted.”[11] This provision alone requires that unless everything possible has been done within the prison, regardless of the availability of those procedures, a prisoner is not allowed to bring suit.[12] If prisoners do not have private counsel to assist in their cases, most of those incarcerated cannot afford to pay filing fees up front. Instead of allowing for prisoners to have their filing fees waived, prisoners can file in forma pauperius and set up a monthly payment plan that comes out of their prison commissary account.[13] However, if three cases are dismissed by the court at any time during the inmates incarceration, at any point or at any facility, for being “frivolous, malicious, or fails to state a claim upon which relief may be granted,” any following civil action or appeal is not permitted to be brought in forma pauperius, unless “imminent danger of serious physical injury” is present.[14]

Following from the “three strikes provision” of § 1915(g), inmates are severely limited by their ability to afford outside counsel in many circumstances. Not only may attorneys be able to negotiate for administrative hearings instead of a lawsuit, but attorneys are also more skilled in drafting legal instruments than most prisoners.[15] It is, unfortunately, more likely that prisoners will have cases dismissed for failure to state a claim in cases due to their lack of familiarity with civil procedure requirements as compared to attorneys.[16] Furthermore, although the “three strikes provision” only prevents a prisoner from filing in forma pauperius, any later cases must be filed with the entire filing fee presented to the court upon filing.[17] Unless a prisoner’s family has substantial money to assist in paying for the filing fees, it is almost impossible for a prisoner to save enough to be able to afford them on their own.[18]

Not only are prisoners highly disadvantaged because a lawyer is sometimes necessary, prisoners are almost entirely unable to be represented by legal aid attorneys who can assist free-citizens with civil issues. Many legal aid organizations aimed at helping low-income individuals are funded by the federal organization Legal Services Corporation (LSC). Additionally, LSC, established by Congress and regulated by a group of individuals appointed by the President and confirmed by the Senate, are subject to federal regulations in order to avoid any political issues.[19] Among these regulations, any organization funded by LSC in any state are not permitted to provide any type of services to inmates.[20] More specifically, “recipients [shall] not participate in any civil litigation on behalf of persons incarcerated in Federal, State, or local prisons.”[21] Additionally, LSC funded organizations must “use its best efforts to withdraw promptly from. . . litigation” if a client becomes incarcerated after the case is started.[22] Although not all legal aid organizations are LSC funded, most of them are. This restriction further limits the availability of attorneys to assist prisoners in civil cases.

There are many hurdles that inmates face when trying to file a civil case in federal court to protect their rights under the Constitution and federal law. These hurdles disproportionately affect individuals coming from a low-income background, regardless of the merit of their claim. If the grievance systems in prisons are made to where they are impossible to satisfy and PLRA does not allow an inmate to file in forma pauperius, they are at risk for having their voices silenced while behind bars. To protect one of the rights still awarded to the incarcerated, and ensure more rights are not violated, legal services must be provided to those prisoners who cannot afford private counsel. While some organizations providing individual representation to inmates exist, they are few and far between. In 1977, it was estimated that only 500 full-time lawyers would be needed to serve the needs of the entire national prison population.[23] Although the prison population has exponentially increased in the past 40 years, the need for attorneys helping prisoners is higher than ever. Current non-profit organizations should expand to help this population, and prisoner rights based non-profits are must be formed to address this growing need.

[1] Pub. L. No. 104 – 134, 110 Stat. 1321.

[2] Id.

[3] Id.

[4] 45 C.F.R. § 1637 (1997).

[5] JLM,

[6] See Procunier v. Martinez, 416 U.S. 396, 419 (1974).

[7] See Bounds v. Smith, 430 U.S. 817, 825 (1977).

[8] Id.

[9] Josh Kurtzman, Overcoming the Exhaustion Requirement of the Prisoner Litigation Reform Act, Am. Bar Ass’n Sec. of Litig. Young Advoc., Jan. 7, 2016, http://apps.americanbar.org/litigation/committees/youngadvocate/articles/winter2016-0116-overcoming-exhaustion-requirement-prisoner-litigation-reform-act.html.

[10] See Clark D. Elwood, Elimination of the Exhaustion Requirement in Section 1983 Cases: Patsy v. Board of Regents {102 S. Ct. 2257}, 25 J. Urb.& Comtemp. L. 313, 314-15 (1983).

[11] 42 U.S.C. § 1997e(a) (1996).

[12] See Kurtzman, supra note 9. Although it may be possible to bring these suits by challenging the availability of the grievance procedures, that may not be within an inmates ability without having counsel assist.

[13] See 28 U.S.C. § 1915 (1996); ACLU, Know Your Rights: The Prison Litigation Reform Act (PLRA), https://www.aclu.org/sites/default/files/images/asset_upload_file79_25805.pdf.

[14] 28 U.S.C. § 1915(g) (1996).

[15] See Bounds, 430 U.S. at 825.

[16] See John Midgley, Pro Se Tips and Tactics – Motions to Dismiss, Prison Legal News, Dec. 1998, at 12.

[17] 28 U.S.C. § 1915(g).

[18] See, e.g., Daniel Wagner, Meet the Prison Bankers Who Profit From the Inmates, Time (Sept. 30, 2014), http://time.com/3446372/criminal-justice-prisoners-profit/.

[19] Legal Services Corporation, Who We Are, http://www.lsc.gov/about-lsc/who-we-are.

[20] 45 C.F.R. § 1637 (1997).

[21] Id. at § 1637.1.

[22] Id. at § 1637.4.

[23] Bounds, 430 U.S. at 832.

Parochialism: An Alternative Approach to Environmentalism in Times of Alternative Facts by Gonzalo E. Rodriguez

Parochialism: An Alternative Approach to Environmentalism in Times of Alternative Facts

by Gonzalo E. Rodriguez

Rivers “so saturated with sewage and industrial waste” that they regularly burst into flames.[1] Cities covered by clouds of smoke and fumes so dense that visibility is reduced to three blocks.[2] Buried pools of carcinogenic toxic waste resurfacing into homes and school yards, while women report abnormally high rates of miscarriage and children return home from play with burns on their faces and hands.[3] These were the type of events that led Congress to adopt the first-generation of command-and-control environmental statutes in the 1970s.[4] The successes of these statutes are undeniable. Since the enactment of the 1970 amendments to the Clean Air Act, aggregate emissions of criteria pollutants have decreased an average of 70 percent across the nation, while the gross domestic product increased by 246 percent.[5] The number of water bodies meeting quality standards has nearly doubled since the Clean Water Act amendments of 1972,[6] and 18-million acres of contaminated lands have been restored since the enactment of the Resource Conservation and Recovery Act in 1976.[7]

Despite the successes of national environmental policies, our fixation on the role of the federal government as the “standard-setter and steward of a healthy environment”[8] could undo nearly half a century of work. A sudden change in the nation’s political climate holds the future of national environmental policy by a thin thread. A wave of right-wing populism propelled Donald Trump–he believes, in contrast to at least 97 percent of publishing scientists, that climate change is a “hoax” invented by China[9]–to the Presidency of the United States, where he has begun to fulfill his campaign promises to gut environmental protections.[10] President Trump’s nominated Scott Pruitt, former Attorney General of Ohio whose tenure was defined by his cooperation with industry to undermine federal environmental regulations, to head the EPA;[11] Rex Tillerson, president and chief executive of Exxon Mobil, for Secretary of State;[12] and Rick Perry, former Texas governor who previously proposed to eliminate the same department he is now nominated to head.[13] Moments after the presidential inauguration, all mentions of climate change were purged from the White House website, with exception of Trump’s promise to do away with the Obama administration’s climate change policies.[14] By his fifth day in office, President Trump issued executive orders reviving the Keystone XL and Dakota Access oil pipelines,[15] freezing all EPA grants,[16] and ordering a media blackout at the EPA.[17] That same day, the Trump administration announced that any scientific findings from EPA researchers would be required to undergo a “case by case basis” review before their release, a move that would directly contradict the agency’s scientific integrity policy.[18]

The future of environmental protections need not, and in fact cannot, rest on the national political rhetoric du jour. Constitutional, political, and jurisdictional barriers also limit the abilities of federal agencies to prevent the further deterioration of the environment.[19] For example, almost half of the remaining water quality concerns in the United States are caused by nonpoint source pollution.[20] Yet, federal regulation has not succeeded in addressing this problem, as nonpoint source pollution is invariably tied to land use,[21] a matter reserved to the states and outside of the control of federal regulators.[22]

Not in my backyard!

Few things make an environmental activist break into cold chills faster than hearing this phrase. NIMBY, as it is often styled, is a pejorative term seen as a syndrome of our times; a product of racism and privilege.[23] The perpetrators of NIMBY have typically been affluent white communities that use their economic and political influence to drive proposed unwanted uses of land out of their neighborhoods.[24] The victims have often been poor communities of color that, due to their lack of economic or political influence (or perhaps knowledge of the proposed action) become unknowing or unwilling hosts to hazardous facilities.[25] Naturally, environmental organizations seek to avoid the NIMBY label; even organizations whose work fits neatly within the boundaries of parochialism, their goals might be stated in global terms to avoid the NIMBY stigma.[26]

Historically, the work of citizen activist groups was a capital-intensive matter, requiring both extensive human and financial capital.[27] However, the widespread availability of internet and the advent of social media has considerably eroded the foundation of this zero-sum situation. If a company decides that a given neighborhood is the perfect location for its new production facility, its air permit application is likely electronically accessible.[28] More importantly, social medial has allowed grassroots activists to organize successful campaigns with minimal resources, attracting supporters that would otherwise not be directly harmed by a given development project. One of the best examples is the movement against the Dakota Access Pipeline; by using the hashtag #NoDAPL, Standing Rock water protectors secured the support, and the ire, of climate organizers around the world.[29] The NoDAPL movement is one of the many successful environmental grassroots efforts that, while expounding globalized ideals, was aimed to address a specific local problem.[30] The increased access to information and power to virally attract support to local causes calls for a reappraisal of the value of local environmental activism.

Going Local

The environmental justice movement is no stranger to grassroots action. Three Los Angeles neighborhoods–Boyle Heights, Pacoima, and Wilmington–share a few things in common: their residents are almost entirely Latino and exceedingly poor, they have strikingly high population densities, and they rank among the most environmentally burdened communities in California.[31] A critic of environmental parochialism would label this as the result of NIMBYism; and there could certainly be some truth to that. However, local activism is precisely what is giving Angelenos hope for a better tomorrow. In April 2016, after years of tireless efforts from community organizers, the Los Angeles City Council unanimously adopted the Clean Up Green Up (CUGU) ordinance.[32] Conceived and propelled by four community working groups, CUGU is a “ground-breaking environmental justice strategy that will reduce and prevent pollution throughout the community.”[33] CUGU exemplifies the use of local governmental power to protect communities; it is a land use ordinance that creates an overlay district over Boyle Heights, Pacoima, and Wilmington.[34] Development proposals within the overlay district will be subject to stricter requirements intended to reduce their environmental impact on the community.[35]

The criticism against local action has two main flaws. As previously discussed, national command-and-control policies have been unsuccessful in addressing many localized environmental problems.[36] But also, local initiatives have the power to, and often do, spark wider change.[37] In 2007, San Francisco became the first city to ban single-use plastic bags.[38] Though the plastic bag industry did its best to bury this initiative, over 130 California cities adopted bag bans by 2014.[39] Two years later, California voters approved the first statewide single-use plastic bag ban in the nation.[40] Though the plastic bag industry naturally objected the initiative, the business community was in favor of the bag ban.[41] One explanation seems to favor reliance on local initiatives instead of immediately seeking change at a state or federal level. As more cities adopt measures such as the bag ban, it creates “patchworks of conflicting policies and laws in California’s 58 counties and 400-plus cities,” which pressure corporate executives to “accept statewide action in the name of uniformity.”[42]

It Takes (Many) a Village

We cannot rely entirely on local governments to devise and implement policies to prevent nationwide environmental degradation. Federal protections are necessary not only to regulate conduct in areas outside state jurisdiction, but also to maintain a uniform regulatory system. However, the need to secure clean air and water requires us to revise the traditional top-down approach toward environmental advocacy. As of the first week of February, Congress has already repealed the stream protection rule,[43] and will shortly move to roll back federal methane flaring rules.[44] U.S. Rep. Matt Gaetz, a Republican congressman from Florida, went as far as to draft a bill to eliminate the EPA.[45] Until Washington is ready to protect our environment, our lives, and the lives of those to come, states and local governments will need to fill the gap.

[1] Jennifer Latson, The Burning River that Sparked a Revolution, Time (Jun. 22, 2015), http://www. http://time.com/3921976/cuyahoga-fire/.

[2] The Southland’s War on Smog: Fifty Years of Progress Toward Clean Air, SCAQMD http://www.aqmd.gov/home/library/public-information/publications/50-years-of-progress.

[3] Eckardt C. Beck, The Love Canal Tragedy, https://archive.epa.gov/epa/aboutepa/love-canal-tragedy.html.

[4] See generally 42. U.S.C. § 7401 (1970) (Clean Air Act); 33 U.S.C. § 1251 (1972) (Clean Water Act); 42 U.S.C. § 6901 (1976) (Resource Conservation and Recovery Act).

[5] Progress Cleaning the Air and Improving People’s Health, US EPA, https://www.epa.gov/clean-air-act-overview/progress-cleaning-air-and-improving-peoples-health.

[6] James Salzman, Why Rivers No Longer Burn, Slate (Dec. 10, 2012, 5:20 AM), http://www.slate.com/articles/health_and_science/science/2012/12/clean_water_act_40th_anniversary_the_greatest_success_in_environmental_law.html. Though burning rivers are no longer a common sight, the EPA estimates that approximately “half of our rivers and streams, one-third of lakes and ponds, and two-thirds of bays and estuaries are ‘impaired waters,’ in many cases not clean enough for fishing and swimming. Id.

[7] RCRA’s Critical Mission & the Path Forward, U.S. EPA 5 (Jun. 3014), https://www.epa.gov/sites/production/files/2015-09/documents/rcras_critical_mission_and_the_path_forward.pdf.

[8] John R. Nolon, In Praise of Parochialism: The Advent of Local Environmental Law, 23 Pace Envtl. L. Rev. 705, 705 (2006).

[9] Caroine Kenny, Trump: ‘Nobody Really Knows’ if Climate Change is Real, CNN (Dec. 12, 2016, 1:51 PM), http://www.cnn.com/2016/12/11/politics/donald-trump-climate-change-interview/. Since then-presidential candidate Trump called climate change a “hoax,” he has softened his stance, instead stating that he is “somebody that gets it, and nobody really knows [if climate change is real].” Id.

[10] For a list of some of these campaign promises, see Jenna Johnson, ‘I Will Give you Everything.’ Here are 282 of Donald Trump’s Campaign Promises, Wash. Post (Nov. 28, 2016), https://www.washingtonpost.com/politics/i-will-give-you-everything-here-are-282-of-donald-trumps-campaign-promises/2016/11/24/01160678-b0f9-11e6-8616-52b15787add0_story.html?utm_term=.fcd0b7857fd7.

[11] Eric Lipton et. al., Scott Pruitt, Trump’s E.P.A. Pick, Backed Industry Donors Over Regulators, N.Y. Times (Jan. 14, 2017), https://www.nytimes.com/2017/01/14/us/scott-pruitt-trump-epa-pick.html.

[12] Donald Trump’s Cabinet is Taking Shape. Here’s the Latest List, N.Y. Times (Jan. 25, 2017), https://www.nytimes.com/interactive/2016/us/politics/donald-trump-administration.html.

[13] Id.

[14] Coral Davenport, With Trump in Charge, Climate Change References Purged From Website, N.Y. Times (Jan. 20, 2017), https://www.nytimes.com/2017/01/20/us/politics/trump-white-house-website.html.

[15] Steven Mufson et. al., Trump Seeks to Revive Dakota Access, Keystone XL Oil Pipelines, Wash. Post (Jan. 24, 2017), https://www.washingtonpost.com/news/energy-environment/wp/2017/01/24/trump-gives-green-light-to-dakota-access-keystone-xl-oil-pipelines/?utm_term=.a4b9d8a270a3.

[16] Brady Dennis et. al., Trump Administration Tells EPA to Freeze All Grants, Contracts, Wash. Post (Jan. 24, 2017), https://www.washingtonpost.com/news/energy-environment/wp/2017/01/23/trump-administration-tells-epa-to-freeze-all-grants-contracts/?utm_term=.9c37220732ac. EPA grants benefit not only local efforts to address issues such as environmental injustice, but are also the life source for many scientists, researchers, and state and local officials. Id.

[17] Trump Administration Orders Media Blackout at EPA, L.A. Times (Jan. 24, 2017, 12:40 PM), http://www.latimes.com/politics/washington/la-na-trailguide-updates-trump-administration-orders-media-1485281190-htmlstory.html.

[18] Nathan Rott, EPA Scientists’ Work May Face ‘Case By Case’ Review by Trump Team, Official Says, NPR (Jan. 25, 2017, 9:43 AM), http://www.npr.org/sections/thetwo-way/2017/01/25/511572169/epa-scientists-work-may-face-case-by-case-review-by-trump-team-official-says.

[19] Nolon, supra note 8 at 708.

[20] Id. at 712.

[21] See James C. Buresh, State and Federal Land Use Regulation: An Application to Ground Water and Nonpoint Source Polution Control, 95 Yale L.J. 1433, 1436-38 (1986).

[22] Land use regulation is the quintessential expression of the police power reserved to the states under the Tenth Amendment. See Berman v. Parker, 348 U.S. 26, 32-33 (1954). Federal attempts to intervene in local development decisions have been quickly repelled, as seen in Clean Air Act amendments that expressly prohibited federal regulators from imposing direct land use controls. Nolon, supra note 8 at 707.

[23] Michael B. Gerrar, The Victims of NIMBY, 21 Fordham Urban L. J. 3 at 495 (1993).

[24] See id.

[25] See id.

[26] See infra note 30.

[27] See generally Laurie A. Kutner, Environmental Activism and the Internet, 1 Electronic Green J. 1, 2 (2000), http://escholarship.org/uc/item/5vg787tz#page-2 (discussing grassroots organizations’ historically limited access to mass-media, requiring these organizations to rely on telephones, mass mailings, and rallies to communicate information).

[28] See, e.g., Public Notices, ADEM, http://www.adem.state.al.us/newsEvents/publicNotices.cnt.

[29] Nick Engelfried, How #NoDAPL United a Movement for Indigenous Rights, The Canadian Progressive (Sept. 18, 2016), http://www.canadianprogressiveworld.com/2016/09/18/nodapl-united-movement-indigenous-rights/.

[30] Social movement circles would not likely label the NoDAPL movement as NIMBY; the water protectors were not chanting “not here,” but rather “not anywhere.” Yet, this is a blurred line. Grassroots activists interested in addressing a specific local ill–“we don’t want that factory here!”–often adopt a tactical expansion approach–“we don’t want any factories, anywhere!–simply to avoid the NIMBY brand. See Nikolay L. Mihaylov et al., Local Environmental Grassroots Activism: Contributions from Environmental Psychology, Sociology, and Politics, 5 Behav. Sci. 122, 145 (2015).

[31] See CalEnviroScreen 3.0 Draft Indicator and Results Map, CA Office of Envt’l Health Hazard Assessment, http://oehha.ca.gov/calenviroscreen/report/calenviroscreen-30-draft (last visited Dec 1, 2016).

[32] Tony Barboza, L.A. City Council Adopts Rules to Ease Health Hazards in Polluted Neighborhoods, L.A. Times (Apr. 13, 2016, 5:59 PM), http://www.latimes.com/local/lanow/la-me-pollution-protection-20160412-story.html.

[33] Clean Up Green Up, Communities for a Better Env’t., http://www.cbecal.org/organizing/southern-california/clean-up-green-up/.

[34] For a copy of the draft ordinance, see Draft CUGU Ordinance, L.A. City Planning, http://planning.lacity.org/Code_Studies/greenla/Ordinance.pdf.

[35] See id.

[36] See Salzman, supra note 7.

[37] See Dan Walters, Opinion: California Often Follows Social Activism at Local Level, Sacramento Bee (Jan 4, 2015, 4:01 PM), http://www.sacbee.com/news/politics-government/politics-columns-blogs/dan-walters/article5367390.html.

[38] Mitch Silverstein, The Battle Against Plastic Bags in California; A Brief History, San Diego Free Press (Sept. 2, 2016), http://sandiegofreepress.org/2016/09/the-battle-against-plastic-bags-in-california-a-brief-history/.

[39] Id.

[40] The statewide ban had been passed into law in 2014; however, industry groups lobbied to subject the measure to a referendum. Samantha Masunaga et al., Where are All Those Plastic Bags? California Voters Decided to Get Rid of Them, L.A. Times (Nov. 12, 2016, 6:00 AM), http://www.latimes.com/business/la-fi-plastic-bags-20161111-story.html.

[41] Id.

[42] Walters, supra note 36.

[43] Ken Silverstein, Will Undoing the Stream Protection Rule Really Help Coal?, Forbes (Feb. 3, 2017, 07:30 AM), http://www.forbes.com/sites/kensilverstein/2017/02/03/will-undoing-the-stream-protection-rule-really-help-coal/#6cd288d3e785.

[44] Bruce Finley, Congress Ready to Roll Back Federal Methane Flaring Rule as Soon as Friday, Denver Post (Feb. 2, 2017, 06:04 AM), http://www.denverpost.com/2017/02/02/congress-federal-methane-flaring-rule/.

[45] Jessica B. Young, Florida Congressman Matt Gaetz Files Bill to ‘Permanently Abolish’ the EPA, Orlando Weekly (Feb. 1, 2017, 01:12 AM), http://www.orlandoweekly.com/Blogs/archives/2017/02/01/florida-congressman-matt-gaetz-files-suit-to-permanently-abolish-the-epa.

You’d Better Say You’re Sorry: Acceptance of Responsibility By: Aubrey Wakeley

You’d Better Say You’re Sorry: Acceptance of Responsibility

Adjustments under Federal Sentencing Guidelines 

By: Aubrey Wakeley

Current federal sentencing practices operate with the use of an offense numbering system that results in a recommended sentencing range within which the sentencing judge is recommended to sentence the defendant, absent unusual circumstances.[1] As of 2005, these guidelines are advisory only.[2] While some issues regarding the sentencing guidelines have been squarely addressed and resolved by the Supreme Court[3], courts have barely touched on the issue of the constitutionality of the downward departure for acceptance of responsibility.

One of two courts to address the legality of the acceptance of responsibility reduction, the federal court for the District of Oregon ruled based on the third level of reduction delegating the authority to reduce the offender’s sentence to the executive branch in a pre-Booker decision.[4] The court held that the discretionary level reduction by the additional third level violated the separation of powers, regardless of whether the defendant has actually received the discretionary reduction: “It also is immaterial whether this particular [d]efendant ultimately receives the third point for acceptance of responsibility. The mere fact that the prosecutor can, if he or she chooses, deny a defendant the third point alters the relative bargaining strength of the parties.”[5]

Since then, however, few decisions address defendants’ arguments against the acceptance of responsibility level reductions on these, or any other, grounds because, as the Third Circuit noted, Booker’s constitutional remedy for a meddling executive branch was to eliminate the mandatory nature of the guidelines.[6] This, the Third Circuit reasoned, was sufficient to remedy any Constitutional worries about a defendant’s sentencing being tainted by improper executive branch influence.[7] The Constitutional issues regarding the separation of powers in sentencing standards therefore appear to be addressed and remedied.

The prudential concerns surrounding this issue are less easily resolved and have been left largely unaddressed. After Booker, the federal courts are still left with a system that gives defendants recommended sentences that will vary greatly in accordance with the sole variable of the defendant exercising his constitutionally guaranteed right to trial.[8] A defendant with no criminal history at all can receive a recommended sentence varying from twenty-seven months to fifteen months, a reduction of 44% in his time incarcerated, based solely on his agreement not to exercise his right to trial after being charged with a level sixteen offense.[9] Upon government motion for the third level reduction, the recommended sentence can drop to twelve months, a 56% reduction in recommended prison time.[10] At the other end of the spectrum, a career offender[11] who pleads guilty to an offense normally sentenced as a level sixteen offense can have the level of that offense, and consequently his sentence recommendation, reduced automatically by 35% with the standard two-level reduction.[12]  This reduction can add up to a difference of over eleven years at the higher end of criminal history category VI.[13] Upon motion of the government for the third level of reduction, which can be a negotiating point for the defendant’s attorney, the recommendation can be reduced even further, to 42% of the initial level sixteen offense.[14]

Because of the comparable lack of sophistication most criminal defendants possess, a person accused of a crime might consider solely the term of imprisonment when determining whether to plead guilty, regardless of any advisements by his defense attorney about collateral consequences. A defendant may even plead guilty when he is not to avoid risking the longer prison sentence or out of a belief that the system disfavors defendants who assert their innocence in court.[15] 97% of federal court cases resulting in a verdict were the result of plea bargains in 2013.[16] Even a knowledgeable defendant, faced with a recommended sentence differential up to 55%, could conclude that the system is biased against a defendant who actually uses his right to trial.

Implementing a solution to this problem of the vast gulf in federal sentencing is logistically difficult, even if not constitutionally problematic. Judicial system funding is tight,[17] , and recent funding crises inevitably come to mind when discussing a massive increase on the federal trial load. Lessening sentencing disparities would certainly result in a changed calculus for defendants, making them more likely to proceed to trial. Currently, admission of all essential elements of a crime is strong evidence of acceptance of responsibility and thus quite likely to result in the applicable reduction of recommended sentence.[18] The defendant putting the government to its burden of proof at trial over factual issues is a categorical bar to the acceptance of responsibility reduction.[19] Because of the current court funding limitations and massive increase in trial load that would result from remediating this disparity, which would remove a reasonable ground for defendants’ belief that the judicial system is hostile to their exercise of the right to trial, there exists little reason to believe that this problem can be resolved in the near future.

[1] See Federal Sentencing Guidelines Manual § 5A (2016), available at https://1.next.westlaw.com/Link/Document/Blob/I829ffe408c9411e584b7b06614fb6ddc.pdf?originationContext=document&transitionType=DocumentImage&uniqueId=9fc0c14b-0473-4148-acff-dabd60235b11&contextData=(sc.Category).

[2] United States v. Booker, 543 U.S. 220, 259 (2005) (holding, “[W]e must sever and excise…the provision that requires sentencing courts to impose a sentence within the applicable Guidelines range) (emphasis added).

[3] See United States v. Booker, 543 U.S. 220 (2005).

[4] United States v. Detwiler, 338 F. Supp. 2d 1166, 1181 (D. Or. 2004).

[5] Id.

[6] United States v. Coleman, 451 F.3d 154, 158 (3d Cir. 2006) (holding, “Indeed, the…remedy for the perceived separation of powers violation in Detwiler-conversion of the mandatory Guidelines into a non-binding, advisory system is essentially the remedy the Supreme Court adopted in Booker, albeit for a different constitutional violation…Thus, while Coleman’s argument that the Feeney Amendment unconstitutionally allows the President to control sentencing might have been persuasive while the Guidelines were still mandatory, it is misplaced under the now-advisory system.”) (internal citations omitted).

[7] Id.

[8] See Federal Sentencing Guidelines Manual § 5A (2016), supra note 1.

[9] Id.

[10] Id.

[11] See Federal Sentencing Guidelines Manual § 4B1.1 (2016).

[12] Federal Sentencing Guidelines Manual § 5A (2016), supra note 1.

[13] Federal Defender, How a Person Previously Sentenced as a ‘Career Offender’ Would Likely Receive  aLower Sentence Today, (explaining, “Sentences recommended by the career offender guideline are among the most severe and least likely to promote the statutory purposes of sentencing.”), https://www.fd.org/docs/select-topics/sentencing-resources/clemency-how-a-person-sentenced-as-a-career-offender-would-receive-a-lower-sentence-today4-14.pdf?sfvrsn=6, last accessed on December 1, 2016.

[14] Federal Sentencing Guidelines § 5A (2016), supra note 8.

[15] Jed S. Rakoff, Why Innocent People Plead Guilty, N.Y. REV. OF BOOKS (Nov. 20, 2014), http://www.nybooks.com/articles/2014/11/20/why-innocent-people-plead-guilty/ (“The few criminologists who have thus far investigated [innocent people pleading guilty] estimate that the overall rate for convicted felons as a whole is between 2 percent and 8 percent. … let us suppose that it is even lower, say, no more than 1 percent. When you recall that, of the 2.2 million Americans in prison, over 2 million are there because of plea bargains, we are then talking about an estimated 20,000 persons, or more, who are in prison for crimes to which they pleaded guilty but did not in fact commit.”).

[16] Id.

[17] Denise A Cardman, Federal Court Funding (2016), http://www.americanbar.org/advocacy/governmental_legislative_work/priorities_policy/independence_of_the_judiciary/federal-court-funding.html (last visited Nov 26, 2016).

[18] Federal Sentencing Guidelines Manual § 3E1.1 (2016) (“Entry of a plea of guilty prior to the commencement of trial combined with truthfully admitting the conduct comprising the offense of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which he is accountable…will constitute significant evidence of acceptance of responsibility.) (internal citations omitted).

[19] Id.

Cultural Destruction Forgotten Amongst Environmental Controversy By: Matthew Willett

Cultural Destruction Forgotten Amongst Environmental Controversy By: Matthew Willett

The Dakota Access Pipeline is a 1,172 mile project to create a 30-inch diameter pipeline[1] across North Dakota, South Dakota, Iowa, and Illinois[2] and is projected to transport half a million barrels of crude oil per day.[3] The Dakota Access Pipeline faces the same environmental concerns as the Keystone Pipeline.[4] While proponents of pipelines boast that pipeline spills occur less regularly than transporting oil by rail or truck, the effects of pipeline spills are often more catastrophic.[5] The controversy surrounding the Dakota Access Pipeline has gained in attention since summer of 2016 when the Standing Rock Sioux tribe filed a complaint in federal district court in Washington D.C. on July 27.[6] The complaint was against the Army Corps of Engineers, the federal agency that approved the pipeline, and then contractors had an injunction preventing them from working as the court deliberated.[7]

Most of the national attention surrounding the Dakota Access Pipeline focuses on the controversy of the pipeline’s potential environmental consequences across the Midwest, thereby minimizing coverage of the pipeline’s encroachment upon Native American tribes’ sovereignty. On September 9, the Court rejected Standing Rock’s legal claims, but agreed with the tribe that the Army Corps of Engineers had improper process violating the Clean Water Act and National Historic Protection Act when it issued permits to construct the pipeline. The decision on September 9 temporarily ended the injunction preventing construction in this area until the Obama Administration ordered the Army Corps to pause construction until it could revisit the controversial area. [8] Given this extra time, it is necessary for the Army Corps and Dakota Access, a private energy company developing the pipeline, to better consider the cultural impact of this project.

Following the environmental controversy surrounding the Keystone Pipeline a couple years prior, the public’s immediate response was focusing on the Dakota Access Pipeline’s environmental impact rather than the encroachment on Native American tribes’ sovereignty. That is not to say the environmental impacts of the Dakota Access Pipeline are not significant. For instance, one of the Standing Rock Sioux tribe’s concerns came from the possibility of the pipeline leaking and contaminating the Missouri River. [9] The Missouri River is Standing Rock’s only source of water. [10] However, the tribe’s main claim issue is the pipeline being a threat to their tribe’s history and culture.

The Standing Rock Sioux tribe views land around the Missouri River, which is not included as part of the tribe’s reservation, as part of their ancestral lands where their ancestors hunted, fished, and were buried in the past.[11] The tribe does not claim a right over this land, understanding that American courts respect the “Discovery Doctrine,” which essentially recognizes a European Christian’s claim over land if they were the first to document ownership. Courts, however, also recognize that these colonial land claims are a painful part of our nation’s past and grant a right to be consulted. This right to be consulted requires a federal agency undertaking a construction project to consult with local Native nations and tribes about the presence of nearby scared sites.[12] This consultation is not meant to pressure tribes into granting approval with little dialogue between the tribe and federal agency but rather a “government-to-government” type of discussion. [13] The tribe claims that it was not part of the historical surveying process until the very end instead of the custom in government-to-government negotiations, which would have the tribe join as a partner in surveying the land. Despite the disputed area’s distance from reservation land, federal agency must respect the right of consultation. [14]

Federal agencies must make a reasonable search to see if any tribes have an interest in a disputed territory. Tim Mentz, a Standing Rock Sioux member and archeologist, reviewed the pipeline’s survey work and found that Dakota Access relied on a survey of the area from 1985 from than conduct an independent survey. [15] Not only does it appear that the Dakota Access failed to make a reliable survey, they also failed to reasonably search to see if any tribe had an interest in the land. [16]

The potential loss of culturally significant sites shows the necessity in diligently inspecting and researching the land prior to any pipeline construction. As a result of the previously mentioned faulty survey, the Standing Rock Sioux revealed that the pipeline’s plans transverse over major archeological sites. [17] The tribe points to one site, for instance, a stone feature depicting the Big Dipper constellation, which signifies that a respected leader is buried in the vicinity. [18] Mentz claims that Dakota Access or Army Corps surveyors would have had to literally walk over the stone archeological site had they conducted the survey. [19] There is a serious risk of losing these culturally valuable sites; hours after Standing Rock Sioux’s legal team presented evidence of these archeological sites to the court, the Dakota Access company started constructing on the same sites. [20]

It seems odd that protecting culturally important sites and the environment are lumped together when they have different considerations and means of redressability. In the Frequently Asked Questions page on the Dakota Access website, the company has a section entitled “What is Dakota Access Pipeline’s commitment to protecting sensitive areas and the environment, such as wetlands and culturally important sites?” [21] The answer to this question discusses how they conducted surveys to review the environmental impact and their attempts to reduce their ecological footprint but never mentioned how they would protect archeological sites. [22] However, there is a different consideration needed for investigating potential conflicts with cultural sites compared to the environment. The wetlands can be studied by traditional surveys but you cannot know about an area’s significance to a particular group if you are not meeting with that group throughout the process.

Further care should be taken with cultural areas because there is no redressability following the destruction of a culturally priceless site. As devastating as environmental damage can be, that damage can be mitigated or cured. For example, if the Missouri River were to flood, the Standing Rock Sioux still could have water shipped to them. Despite the inconvenience, the contaminated water can be replaced, but a destroyed burial ground centuries old cannot. Once an archeological site is destroyed it is lost forever. Even if the Army Corps or Dakota Access were to reimburse the Standing Rock Sioux for any destroyed site, it is unlikely the tribe would accept the payment. [23] The Sioux have continuously declined payment from the U.S. government in compensation for the improper taking of the Black Hills of South Dakota. [24] The tribe demands to take possession or co-possession of the Black Hills rather than accept the payment, which is now worth over a billion dollars off of earned interest. [25] Given these diverging considerations, it is dangerous to think of the debate of the Dakota Access Pipeline as only an environmental concern without examining the potential loss of priceless cultural artifacts.

 

[1] Devashree Saha, Five Things to Know About the North Dakota Access Pipeline Debate, Brookings (Sep. 6, 2016), https://www.brookings.edu/blog/the-avenue/2016/09/14/five-things-to-know-about-the-north-dakota-access-pipeline-debate/

[2] Jessica McBride, Dakota Access Pipeline Maps & Routes: Where Would It Go? Heavy (Sep. 6, 2016), http://heavy.com/news/2016/09/dakota-access-pipeline-protests-video-photos-dogs-map-dapl-routes-north-oil-mace-standing-rock-sioux-native-american-indian-energy-transfer-kelcy-warren-bakken-lawsuit/.

[3] Saha, supra note 1.

[4] Robinson Meyer, The Legal Case for Blocking the Dakota Access Pipeline, The Atlantic (Sep. 9, 2016), http://www.theatlantic.com/technology/archive/2016/09/dapl-dakota-sitting-rock-sioux/499178/.

[5] Jack Healy, North Dakota Pipeline Battle: Who’s Fighting and Why, N. Y. Times (Aug. 26, 2016), http://www.nytimes.com/2016/11/02/us/north-dakota-oil-pipeline-battle-whos-fighting-and-why.html.

[6] Standing Rock Litigation, Earth Justice Initiative, http://earthjustice.org/features/faq-standing-rock-litigation (last visited Oct. 30, 2016).

[7] Id.

[8] Saha, supra note 1.

[9] Meyer, supra note 4.

[10] Id.

[11] Healy, supra note 5.

[12] Meyer, supra note 4.

[13] Id.

[14] Saha, supra note 1.

[15] Healy, supra note 5.

[16] Saha, supra note 1.

[17] Meyer, supra note 4.

[18] Id.

[19] Id.

[20] Id.

[21] Frequently Asked Questions, What is Dakota Access Pipeline’s commitment to protecting sensitive areas and the environment, such as wetlands and culturally important sites?, Dakota Access (last visited Oct. 30, 2016) http://www.daplpipelinefacts.com/resources/faq.html.

[22] Meyer, supra note 4.

[23] Maria Streshinski, Saying No To $1 Billion, Atlantic (Mar. 2011), http://www.theatlantic.com/magazine/archive/2011/03/saying-no-to-1-billion/308380/.

[24] Id.

[25] Id.

Utah v. Strieff: A Brief Analysis By: Logan Griffith

Utah v. Strieff: A Brief Analysis

By: Logan Griffith 

The Fourth Amendment to the United States Constitution protects “the rights of the people … against unreasonable searches and seizures of property by the government.”[1] Historically, violators of one’s fourth amendment rights were treated by the law as trespassers.[2] As such, fourth amendment rights were enforced by way of either self-help or a suit in tort.[3] This changed with the adoption of the exclusionary rule.[4] The exclusionary rule allows for a court to exclude evidence against a defendant that was obtained during an illegal search.[5] There are several exceptions to the exclusionary rule.[6] The exceptions share one common characteristic in that they all pertain to the “causal relationship between the unconstitutional act and the discovery of evidence.”[7] One key exception to the exclusionary rule is the attenuation doctrine, which allows evidence to be admitted “when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance.”[8]

The exclusionary rule and the attenuation doctrine exception, at their heart, are about weighing the costs and benefits to the public of excluding evidence obtained in an unconstitutional search.[9] In order to guide this cost-benefit analysis, the Court, in Brown v. Illinois, set out three factors to be considered.[10] The three factors are 1) the “temporal proximity” between the illegal search and the discovery of evidence, 2) the presence of intervening circumstances, and 3) the “purpose and flagrancy of the official misconduct.”[11]

In 2016, the Court was tasked with deciding whether the discovery of a valid arrest warrant during the course of an illegal stop was an attenuating circumstance that made the exclusion of evidence obtained unwarranted.[12] In Utah v. Strieff, a detective was watching a house that he believed, due to an anonymous tip, to be involved in the selling of narcotics.[13] The defendant exited the house and the detective illegally detained him and demanded his identification.[14] Once the detective relayed the identification information to his dispatcher, he learned that the defendant had an outstanding arrest warrant.[15] Pursuant to the warrant, the detective searched the defendant and found a small amount of methamphetamine and drug paraphernalia.[16] At trial, the defendant moved to suppress the evidence and the trial court denied the motion. [17] The defendant appealed, and the Utah Court of Appeals affirmed.[18] He appealed to the Utah Supreme Court and that court reversed, leading the state to appeal to the United States Supreme Court.[19]

The Court handed down three opinions: one majority opinion and two dissenting opinions; all three opinions employ the Brown factors.[20] With regards to the first factor’s consideration of the “temporal proximity,” all of the opinions agree.[21]  The illegal stop, discovery of an arrest warrant, and subsequent search all occurred within minutes of each other, meaning this factor favors exclusion of the evidence.[22] As far as the existence of intervening circumstances, the opinions differ substantially. Justice Thomas’s majority opinion views the discovery of the arrest warrant, essentially, as the beginning of a new interaction. The initial stop was illegal, but the discovery of the arrest warrant removes the taint of illegality from the evidence that surfaces after the discovery, because the “causal chain” has been broken.[23] The dissenting opinions do not see the discovery of an arrest warrant to be as destructive to the “causal chain.” Justice Kagan’s dissenting opinion analyzes the existence of intervening circumstances in terms of foreseeability.[24] Because the procedure of asking for identification and then running said identification through the state’s database is, in part, designed to discover outstanding arrest warrants, such an event is foreseeable enough for it not to be considered “intervening.”[25] Similarly, the opinions are split in regards to the “purpose and flagrancy” of the unconstitutional stop. The majority opinion calls the detective’s actions “at most negligent,” and paints the actions that led to his illegal detaining of the defendant as “good-faith mistakes.”[26] Based on this, the majority decides that this is not the sort of behavior that would be effectively deterred by the exclusionary rule.[27]  Justice Sotomayor disagrees in her dissenting opinion, but notably claims that, even if the detective’s actions were merely negligent, even negligent officers “can learn from courts that exclude illegally obtained evidence.[28] Justice Kagan’s opinion similarly paints the detective’s actions as sufficiently purposeful to warrant exclusion of the evidence.[29]

The decision in this case seemingly suggests that someone who has an outstanding arrest warrant – for instance, someone with a traffic ticket who has “misse[d] a fine payment or court appearance”[30] – essentially forfeits his fourth amendment rights. The majority considers the discovery of an arrest warrant an unforeseeable, “intervening circumstance” that is “entirely unconnected with the stop.”[31] With the number of outstanding warrants in the United States, this view borders on untenable. The majority pays lip service to the “purpose and flagrancy” consideration, but sets the standard far too high. If the detective in this case can be said to have merely made “good-faith mistakes,” what would it take for an officer’s illegal conduct to rise to the level of “purposeful and flagrant?”  The exclusionary rule is about disincentivizing police officers from violating the constitution.[32] As Justice Kagan points out in her dissent, the majority’s ruling will likely do the opposite.[33] If a police officer illegally detains someone and demands his identification, either the suspect will have a warrant, in which case he can be arrested and searched, or he will not have a warrant and he will be unlikely to sue to enforce his fourth amendment rights.[34] This decision has practical, damaging effects on the rights secured by the fourth amendment. As the late Justice Scalia once wrote: “there is nothing new in the realization that the Constitution sometimes insulates the criminality of the few in order to protect the privacy of us all.”[35] Although the defendant in this case was undoubtedly guilty, this is an instance where his criminality should be insulated to protect the privacy of the public.

 

[1] U.S. Const. amend. IV.

[2] Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016).

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Brown v. Illinois, 422 U. S. 590, 604-5 (1975).

[11] Strieff, 136 S. Ct. 2056 at 2062.

[12] See Strieff, 136 S. Ct. 2056.

[13] Strieff, 136 S. Ct. 2056 at 2057.

[14] Id.

[15] Id.

[16] Id.

[17] Id., at 2058.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id., at 2062-63.

[24] Id., at 2073.

[25] Id.

[26] Id., at 2063.

[27] Id.

[28] Id., at 2068.

[29] Id., at 2072.

[30] Id., at 2068.

[31] Id., at 2058.

[32] Id., at 2065.

[33] Id., at 2073.

[34] Orin Kerr, Opinion Analysis: The Exclusionary Rule is Weakened but it Still Lives, SCOTUSblog (June 20, 2016, 9:35 PM), http://www.scotusblog.com/2016/06/opinion-analysis-the-exclusionary-rule-is-weakened-but-it-still-lives/.

[35] See Arizona v. Hicks, 480 U.S. 321 (1987).

An Analysis on Physician Assisted Suicide By: Mary Pat Damrich

An Analysis on Physician Assisted Suicide

By: Mary Pat Damrich

Introduction:

Physician assisted suicide (PAS) is “the practice of providing a competent patient with a prescription for medication for the patient to use with the primary intention of ending his or her own life.”[1] Whether a terminally ill patient has the right to end her life through PAS recently became a high-profile debate after the public decision of Brittany Maynard, a terminally ill 29-year old woman, to end her own life through the practice. [2]

Brittany Maynard was just 29-years old when she was diagnosed with terminal glioblastoma, a rare form of brain cancer.[3] With this diagnosis came an agonizing decision for Brittany: should she receive full brain radiation, a tortious treatment which would likely blind her and leave her mentally handicapped, destroying her final days; or, should she end her own life through PAS?[4] “When Brittany asked what would happen before she died, doctors described intense headaches, seizures of increasing frequency and duration, blindness, dramatic personality changes, and loss of every brain function, including movement and thought, as death approached.”[5] Knowledge of the harrowing symptoms of her disease, along with the knowledge that treatment was futile, lead Brittany to choose to end her life through PAS.[6] At the time, PAS was illegal in her home state of California, so Brittany and her family moved to Oregon so that she could take advantage of the state’s “Death with Dignity” law.[7] In November 2014, Brittany Maynard ingested a lethal prescription and passed away peacefully in her home.[8]

American Constitutional Perspective:

Although Brittany’s story garnered widespread attention in the United States, PAS remains illegal in most of the country.[9] In 1997, the Supreme Court issued two decisions, Washington v. Glucksberg and Vacco v. Quill, in which the Court held that PAS is not a protected liberty interest under the Constitution.[10] The Court determined that the government’s interest in preserving life and avoiding the undue influence of third parties outweighed patients’ interests in the liberty to choose to die through PAS.[11]

Although the Supreme Court determined that there is no constitutionally protected right to PAS, the Court did not ban the practice.[12] Instead, the Court left “the right to legislate on end-of-life procedures lies within the purview of the individual states.” [13]As of 2016, Oregon, Washington, Vermont, California, and Montana have explicitly legalized physicians providing terminally ill adults with prescriptions for lethal doses of medications.[14]

The Pros and Cons of PAS:

The debate on whether PAS should be legalized continues across the country.[15] Both advocates and opponents of its legalization are passionate about their stances. Advocates say that patients who are already going to die from their terminal illnesses should have the right to choose PAS if their suffering becomes unbearable; while opponents believe that legalizing PAS would lead to a variety of problems and injustices.[16] Below are just a few of the positions advocates and opponents have on the issue.

Opponents of PAS fear that legalizing the practice would allow terminally ill patients to be coerced by their families to submit to PAS, as well as allow terminally ill patients to request PAS only because they feel as though they are a burden on their families.[17] Advocates believe that legislative safeguards would prevent these abuses. For example, Oregon has a legislative safeguard that holds physicians criminally and civilly liable for granting a patient’s request for PAS when he feels as though either of these two feared abuses are occurring.[18] [19] Oregon further attempts to prevent these abuses through its requirement that two witnesses verify that the patient’s request for PAS is ‘voluntary and not coerced,”[20] and limits the effect of coercive family members by requiring that at least one of the witnesses not be a family member or entitled to any portion of the patient’s estate.[21] However, opponents of PAS argue that these witnesses do not provide adequate protection against these potential abuses, as they believe that a coercive family member would be able to coerce the witness as well.[22] Whether or not these legislative safeguards are sufficient to protect against these two abuses is a heated debate in itself.

Opponents of PAS also fear that the legalization of the practice would lead to abuses by health insurance companies. Opponents fear that the legalization of PAS would allow for insurance companies to force terminally ill patients to use PAS by agreeing to pay for PAS while refusing to pay for hospice.[23] Advocates rebut this argument by arguing that PAS is not an alternative to hospice or other end of life care, but opponents note that because PAS is less expensive than hospice, the legalization of PAS will affect health insurance companies’ determinations of what they will cover.[24] Advocates believe that, because health insurance is regulated by the state, this determination could be controlled through legislation.[25] For example, the legislature could require insurance companies that cover PAS to cover hospice as well.[26] Additionally, advocates of PAS believe that legalization would actually solve a problem that relates to insurance companies. Because many life insurance policies refuse to pay proceeds when the insured commits suicide, advocates believe that the legalization of PAS would provide a gateway for the terminally ill to end their lives with the knowledge that their families will still receive life insurance proceeds.[27]

Another argument made against the legalization of PAS is that a patient only requests PAS if he suffers from a depression.[28] This argument is supported by studies revealing that depression in terminally ill patients frequently goes undiagnosed, and that once it is diagnosed and treated, a significant amount of patients who had originally pursued PAS change their mind.[29] However, advocates of the law counter this argument by stating that legislative safeguards, such as a requirement for every patient seeking PAS to see a psychiatrist, would prevent this outcome.[30]

Finally, opponents of PAS note that physicians are fallible, and that there is often uncertainty in diagnosis and prognosis of an illness.[31] As a result, there are often times when patients live for much longer than doctors expected, and there are situations in which patients miraculously recover.[32] Opponents to PAS believe that PAS should not be legalized for this reason, as people would be ending their lives when they potentially could have recovered and survived.[33] Furthermore, opponents also believe that the legalization of physician assisted suicide would undermine the role of the physician as a “healer,” a role that is entrenched in the Hippocratic Oath[34]

Conclusion:

Both opponents and advocates of PAS have compelling arguments, and the debate is only just beginning. This analysis suggests that it is nearly impossible to determine whether the legalization of PAS would protect the individual’s right to autonomy or lead to terrible abuses. However, it seems that legalizing PAS and implementing adequate safeguards to prevent abuses would be the best way to preserve a patient’s personal autonomy while taking into account the various arguments opponents have to the practice. Because of the strong arguments both sides hold, the debate on whether or not terminally ill patients have the right to end their lives through the practice will likely be an unsolved issue for many years to come.

[1] Definition of Physician-assisted Suicide, MedicineNet.com, http://www.medicinenet.com/script/main/art.asp?articlekey=32841 (last updated Sept. 20, 2012).

[2] Catherine E. Schoichet, Brittany Maynard on Decision to Die: Now ‘doesn’t seem like the right time,’” CNN (Nov. 3, 2014), http://www.cnn.com/2014/10/29/health/oregon-brittany-maynard-video/.

[3]  Bill Brigs, Brittany Maynard’s Death: Why is Brain Cancer So Lethal?, NBC (Nov. 4, 2014), http://www.nbcnews.com/health/cancer/brittany-maynards-death-why-brain-cancer-so-lethal-n240841 /.

[4]Debbie Ziegler, Mother of Right-to-Die Brain Tumor Sufferer Tells of Final Moments and Why She Wants Assisted Dying Everywhere, Daily Mail (Feb. 16, 2015),

http://www.dailymail.co.uk/news/article-2951622/My-daughter-Brittany-Maynard-died-husband-stroking-hair-read-poetry-mother-right-die-brain-tumor-sufferer-tells-wants-assisted-dying.html#ixzz4NHWkT6WI (“Most frightening to Brittany was a high likelihood of long-term effects: decreased intellect, memory impairment, confusion, personality changes and alteration of the normal function of the area irradiated.”).

[5] Barbara Coombs Lee, Brittany Maynard’s Memory is Helping Us Achieve Death with Dignity,  Time (Jan. 28, 2015), http://time.com/3687736/brittany-maynards-legacy-death-with-dignity/.

[6] Catherine E. Schoichet supra note 2.

[7] Belinda Luscombe, Why a Young Woman with Brain Cancer Moved to Oregon to Die, Time (Oct. 8, 2014), http://time.com/3481599/brittany-maynard-death-with-dignity-oregon-right-to-die-law/ .Catherine E. Schoichet d Her Own Life. Nicole Weisensee Egan. November 2, 2014 at 7:35 PM EDT.rywhere.”

[8] Nicole Weisensee Egan, Terminally Ill Woman Brittany Maynard Has Ended Her Own Life, People (Nov. 2, 2014), http://people.com/celebrity/terminally-ill-woman-brittany-maynard-has-ended-her-own-life/.

[9] Death with Dignity Around the U.S., DeathWithDignity.org, https://www.deathwithdignity.org/take-action/ (last updated Nov. 9, 2016).

[10] See Washington v. Glucksberg, 521 U.S. 702 (1997). See also Vacco v. Quill, 521 U.S. 793 (1997).

[11] Id.

[12] Id.

[13] Alexander R. Safyan, A Call for International Regulation of the Thriving “Industry” of Death Tourism, 33 Loy. L.A. Int’l & Comp. L. Rev. 287 (2011). See also Vacco, 521 U.S. 793 at 798.

[14] FAQs, DeathWithDignity.org, https://www.deathwithdignity.org/faqs/ (Last visited Nov. 13, 2016).

[15] Death with Dignity Around the U.S., DeathWithDignity.org, https://www.deathwithdignity.org/take-action/ (last updated Nov. 9, 2016).

[16] Helene Starks, et al., Physician Aid in Dying, Ethics in Medicine (April 2013), http://depts.washington.edu/bioethx/topics/pad.html.

[17] Mary Harned, The Dangers of Assisted Suicide: No Longer Theoretical, Defending Life 513, 514-17 (2012).

[18] OR. REV. STAT. §127.890(2)-(3).

[19] Id. §127.825.

[20] Id.

[21] Christina White, Physician Aid-in-Dying, 53 Hous. L. Rev. 595, 619 (2015).

[22] Id.

[23] Margaret K. Dore, Note “Death with Dignity”: A Recipe for Elder Abuse and Homicide (Albeit Not by Name), 11 Marq. Elder’s Advisor 387, 398 (2010).

[24] Id.

[25] Christina White supra note 21, at 620.

[26] Id.

[27] Richard Reich, Life Insurance & The Right to Die Movement,LifeInsure.com (Feb. 29, 2016), http://www.lifeinsure.com/life-insurance-right-die-movement/.

[28] Mary Harned supra note 17.

[29] Id. at 514-15.

[30] Christina White supra note 21, at 622.

[31] Helene Starks supra note 16.

[32] Id.

[33] Id.

[34] Australian Human Rights Commission, Euthanasia, Human Rights, and the Law at 58 (2016).

Vergara v. California: California Tenure Law Gets An “F” By: Ross Benson

Vergara v. California: California Tenure Law Gets An “F”

By: Ross Benson 

Most cases of bullying involve one student bullying another classmate. In California, however, it is the teacher’s union that does the bullying. Despite the California Constitution’s affirmation that access to an education is essential to the preservation of rights and liberties,[1] the California Supreme Court’s decision not to review Vergara v. California pokes holes in the state’s commitment to its students. The same group who once fought to open the school house doors have now locked minorities into situations where they derive no meaningful benefit from the right to an education.

Vergara v. California

Nine Los Angeles students filed suit against the State of California, alleging that students received a “grossly ineffective” education as a result of California statutes.[2] Specifically, the students cited the state’s tenure, dismissal, and reduction in force statutes as the basis for the grossly ineffective claim.[3] After reviewing several weeks of evidence and testimony, the trial court found that the statutes related to teacher tenure were unconstitutional because they resulted in such inequality in education that it “shocks the conscious.”[4] Despite evidence to the contrary, the California Court of Appeals held that the same statutes and results that shocked the trial court’s conscious were not facially unconstitutional and that the education provided to low income and minority students was “basically equivalent” to white or affluent students.[5] The California Supreme Court denied certiorari.[6]

Tenure Statutes

The California tenure statutes maintain that a teacher may be given tenure status after just two years on the job[7]—hardly enough time to determine the quality of the teacher. The low threshold for gaining tenure is of central importance because once the teacher obtains tenure, the teacher is near impossible to fire. Of the 275,000 tenured teachers in California, only 2.2 (.0008%) are dismissed on average for unsatisfactory performance.[8] For each dismissal case, a documentation process spanning several years must be completed and then the school district must spend between $250,000 and $450,000 to complete the dismissal action.[9] When teachers are dismissed, the statute requires that superintendents use a “LIFO” (last in, first out) decision making pattern.[10] Hiring and firing is based on seniority, meaning that a poor performing teacher with 20 years of experience will outlast a new hire with better classroom results.

Impact on Poor Minority Students

Even the most ardent critics of teacher tenure statutes must admit that teaching is a difficult job. However, these teachers must be held to the same standards as the students they teach. Whether by the ACT, SAT, semester grades, or another standardized test, students are judged on results. Conversely, these results are also an evaluation of how effective teachers are and enable school districts to understand which teachers are doing the best job.

Faced with the cost and difficulty of removing ineffective teachers, school boards often transfer the least effective teachers from higher income zones to the lowest income areas.[11] As a result, these teachers are assigned to majority black and Latino school districts.[12] According to expert testimony, Latino students are 68% more likely to be taught by a teacher in the bottom 5% of effectiveness, while African-Americans are 48% more likely to be a taught by a similarly ineffective teacher.[13] On the other hand, students in the most wealthy school districts were 65% more likely to experience a teacher lay off, a trend that illustrates the reassignments to the low income areas.[14] With the difficulty of firing teachers and the statutory requirements that protect incumbent teachers, administrators simply move them out of sight and shift the burden to the students who need help the most.

Empirical evidence shows that California does not provide an equal level of education to all students. In determining that California statutes created a discriminatory affect against poor and minority students, the trial court relied on two major studies. First, the court cited a four year study by Harvard economist and education professor Thomas Kane.[15] Kane argues that students in Los Angeles who are taught by a teacher in the bottom 5% of effectiveness lose more than nine months of learning within a single school year compared to students taught by an average level teacher.[16] Additionally, the trial court noted that Stanford economist Raj Chetty’s study posits that a classroom with an ineffective teacher could cost the students $1.4 million in lifetime earnings.[17] If classrooms have several teachers that are ineffective, the loss of earnings will multiply.

Results Matter

When the California Appellate Court held that California tenure laws are constitutional, the court doomed poor and minority students to a future with less opportunity and less earning power. Though the laws may be constitutional, tenure statutes produce an outcome that disproportionately affects poor minority students. Here, the situation is analogous to voter registration laws. Though states may decide when and how voting occurs within each individual state, no state may pass a law that discriminates based on race, sex, income, or age.[18] A law that is constitutional on its face may be struck down if the law impacts the rights or abilities of any group of voters.[19] Recently, for example, North Carolina voter registration laws were rejected by the Fourth Circuit.[20] Though the state was free to determine its voting procedures, the state’s elimination of same-day registration and imposition of voter-ID requirements created a substantial burden on predominately African-American voters and was held unconstitutional.[21] In California, teacher tenure law should be viewed in the same way as voter registration laws; if the law creates a disproportionate outcome against minorities or other groups, the law must be struck down.

With students in the bottom 10% of both math and reading,[22] California simply cannot afford to ignore the generational impact of these tenure laws. If California was graded on student’s performance and access to education, the state would get an “F”.

 

[1] Cal. Const. art. IX, § 1 (“A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people…”).

[2] Vergara v. California, 2014 Cal. Super. LEXIS 1255, at *4 (Cal. Super. Ct. Aug. 6, 2014).

[3] Id.

[4] Id. at *10.

[5] Vergara v. California, 246 Cal. App. 4th 619, 649 (Cal. Ct. App. 2016).

[6] Vergara v. Cal. Teachers Ass’n, cert. denied, No. S234741, 2016 Cal. LEXIS 8387, *8 (Cal. Aug. 22, 2016).

[7] Cal Educ. Code § 44929.21 (Deering 2016).

[8] Dismissal, Students matter, http://studentsmatter.org/case/vergara/dismissal-statutes/ (last visited Oct. 12, 2016).

[9] Id.

[10] Cal Educ. Code § 44955 (Deering 2016).

[11] Vergara, 246 Cal. App. 4th at 636.

[12] Id.

[13] Id.

[14] Id.

[15] Id. at 652.

[16] Id.

[17] Id.

[18] 15 U.S.C. § 10101.

[19] 15 U.S.C. § 20510.

[20] League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, (4th Cir. 2014).

[21] Robert Barnes & Ann Marimow, Appeals Court Strikes Down North Carolina’s Voter-ID Law, The Wash. Post (June 29, 2014), https://www.washingtonpost.com/local/public-safety/appeals-court-strikes-down-north-carolinas-voter-id-law/2016/07/29/810b5844-4f72-11e6-aa14-e0c1087f7583_story.html.

[22] Do California Schools Deliver On the Promise of Equal Educational Opportunities For All Kids?, Students Matter, http://studentsmatter.org/cardstack/vergara/#2 (last visited Oct. 12, 2016).

 

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