Monthly Archives: April 2015

“F” for Felon: The New Scarlet Letter by Hannah Hicks

“F” for Felon: The New Scarlet Letter

Hannah Hicks

 

Introduction

 

In most states, the use of illegal drugs by a woman during her pregnancy is a matter addressed by child protective services.[1] However, in Alabama women can be criminally prosecuted for drug use during pregnancy. This post will provide a brief introduction to Alabama’s chemical endangerment statute and argue that public policy weighs against the prosecution of women for drug use during pregnancy.

Alabama’s Chemical Endangerment Law

Ala. § 26-15-3.2 makes chemical endangerment of a child a felony.[2] Under the law, knowingly or recklessly allowing a child to ingest, inhale, or come into contact with a controlled substance, chemical substance or drug paraphernalia is a class C felony.[3] If a child sustains injury as a result of exposure, the offense is a class B felony.[4] If death results, the offense is a class A felony and carries a minimum 10-year sentence.[5]

Alabama’s chemical endangerment law was enacted to protect children from exposure to meth labs.[6] However, Alabama prosecutors have used the law to bring dozens of cases against women who used drugs during pregnancy.[7] This has led The New York Times to describe Alabama as “the national capital for prosecuting women on behalf of their newborn children.”[8]

The two strongest arguments in favor of the criminal prosecution of women who use drugs during pregnancy are that these laws have a strong deterrent effect[9] and that these prosecutions link pregnant women to drug treatment programs.[10] These arguments ultimately fail under the weight of the counter-arguments presented below.

 

Policy Arguments Against Criminalization of Drug Use During Pregnancy

 

              Barriers to Treatment

 

Women fearing prosecution under chemical endangerment laws may avoid seeking prenatal care or drug treatment if they believe that medical providers will turn them over to law enforcement. Additionally, one defense attorney in Alabama is aware of one woman facing prosecution under the chemical endangerment statute “who drove to Georgia when she went into labor and another who gave birth to a three-pound baby in a bathtub at home.”[11]

These women’s concerns are well grounded. Some jurisdictions have experimented with the policy of doctor reporting of pregnant women suspected of drug use.[12] Although the U.S. Supreme Court in Ferguson v. City of Charleston decided that hospital testing for the purpose of obtaining evidence of criminal drug use by a pregnant woman is an unreasonable search when the woman has not given her consent,[13] the holding of the case was so narrow that it leaves open the possibility that medical records could be turned over to authorities and used against pregnant women.[14]

For example, women who are addicted to “hard” drugs undergo serious withdrawal symptoms that often require medical intervention. Doctors sometimes prescribe small doses of methadone to wean users off of these drugs. There is nothing in the Alabama statute that would prevent prosecution of women undergoing this form of addiction treatment.[15]

The American Medical Association, American Academy of Pediatrics, and The American College of Obstetricians and Gynecologists have voiced their concern that prosecuting women for drug use during pregnancy “is irrational” because “it will result in greater harm to infants.”[16] These professional organizations argue that “fear of prosecution would not influence women to discontinue drug use early enough to significantly reduce harm to infants [and] women will be encouraged to avoid contact and communication with medical providers.”[17] Moreover, withdrawal effects might complicate pregnancies.[18]

 

              Unbridled Regulation of Pregnant Women

Another concern surrounding statutes like Alabama’s chemical endangerment statute is the looming possibility of extensive intrusion the lives of pregnant women. One critic states the concern as follows: “everyone talks about the personhood of the fetus, but what’s really at stake is the personhood of women.”[19] Some fear that the application of Alabama’s chemical endangerment law opens the door for state regulation of all aspects of a pregnant woman’s life. At least one critic has queried whether criminal prosecutions for the use of cigarettes and alcohol while pregnant are the next step.[20] Beyond that, what happens when the pregnant woman works at a job that exposes her to toxic chemicals or fails to follow her doctor’s bed rest orders because of other pressing responsibilities?[21]

Crushing Social Outcomes

Successful prosecution under Alabama’s chemical endangerment law delivers a devastating blow to women and their children. Not only does it result in temporary separation of the family during crucial years of child development, it also initiates a lifelong struggle under the scarlet letter “F” for felon. With the label “felon,” these women will face extreme difficulty securing employment. Additionally, they will not be able to receive government assistance, including food stamps and housing. With these insurmountable barriers, it is no surprise that women and children affected by these child endangerment prosecutions will succumb to the cycle of chronic poverty and criminal activity.

Conclusion

Other states are beginning to follow Alabama’s lead. In 2014, Tennessee enacted a law that allows for the prosecution of women who give birth to drug-dependent children.[22] Some women’s rights advocates argue that laws that allow for prosecution of drug use during pregnancy are one more weapon in pro-life advocates’ armory of  “fetal personhood” arguments.[23] If that is the case, more states with pro-life majorities are likely to begin adopting similar laws. However, these laws might not withstand constitutional challenge,[24] and as this post has argued, there are strong policy reasons to object to the recent shift toward criminalization of drug use during pregnancy.

[1] Ada Calhoun, The Criminalization of Bad Mothers, The N.Y. Times Mag. (Apr. 25, 2012), http://www.nytimes.com/2012/04/29/magazine/the-criminalization-of-bad-mothers.html?_r=0.

[2] Ala. Code §26-15-3.2.

[3] Ala. Code §26-15-3.2(a)(1).

[4] Ala. Code §26-15-3.2(a)(2).

[5] Ala. Code §26-15-3.2(a)(3).

[6] The Associated Press, New Ala. Law Being Used to Prosecute Drug-Using Moms, The Legal Intelligencer (Feb. 14, 2008), http://www.thelegalintelligencer.com/id=900005503410/New-Ala-law-being-used-to-prosecute-drugusing-moms.

[7] Hicks v. Alabama, 153 So.3d 53, 57 (Ala. 2014).

[8] Calhoun, supra note 1.

[9] Dave Boucher & Tony Gonzalez, Prosecutors Argue Controversial Law Helps Drug-Addicted Moms, The Tennessean (Apr. 14, 2015), http://www.tennessean.com/story/news/crime/2015/04/13/prosecutors-argue-controversial-law-helps-drug-addicted-moms/25705273/.

[10] Boucher & Gonzalez, supra note 9.

[11] Calhoun, supra note 1.

[12] Ferguson v. City of Charleston, 532 U.S. 67 (2001).

[13] Id. at 70-71.

[14] See Brigitte Nahas, Drug Tests, Arrests & Fetuses: A Comment on The U.S. Supreme Court’s Narrow Opinion in Ferguson v. City of Charleston, 8 Cardozo Women’s L.J. 105 (2001).

[15] Calhoun, supra note 1.

[16] Brief Amicus Curiae for Appellee at 3, Johnson v. Florida, 602 So.2d 1288 (Fla. 1992) (No. 77-831).

[17] Id.

[18] Id.

[19] Id.

[20] Calhoun, supra note 1.

[21] Id.

[22] Boucher & Gonzalez, supra note 9.

[23] Calhoun, supra note 1. In considering 2014 challenge to this use of the chemical endangerment statute, the Alabama Supreme Court placed great weight on the fact that the plain meaning of the word “child” includes fetuses. Hicks, 163 So.3d at 59-61.

[24] Kathleen Adams, Note: Chemical Endangerment of a Fetus: Societal Protection of the Defenseless or Unconstitutional Invasion of Women’s Rights?, 65 Ala. L. Rev. 1353, 1371 (2014). However, the Supreme Court of Alabama recently held that the state’s chemical endangerment statute did not violate the mother’s constitutional right to due process. Hicks, 163 So.3d at 65.

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It’s About More Than Money: Why College Athletes Should Not be Paid By Trenton Dressen

It’s About More Than Money: Why College Athletes Should Not be Paid

By

Trenton Dressen

With hot headlines such as the Ed O’Bannon lawsuit, unionization by Northwestern football players, and high profile college football players getting sanctioned for selling their autographs, the debate over whether college athletes should be paid is more heated than ever. While reasonable arguments can be raised to pay the athletes, many of the complications that would come with pay are overlooked. Ultimately, the cost of paying athletes is likely to outweigh the benefit and pay should not be implemented.

Stories of Johnny Manziel or Todd Gurley getting sanctioned for making a few hundred dollars off of their own autograph scream injustice. Narratives of schools like the University of Alabama or the University of Texas profiting millions while their athletes go unpaid appear blatantly unfair. Anyone who sees the NCAA’s annual revenue would instinctually feel that something inequitable was going on.  However, these anecdotes often cause us to see the issue of college athlete compensation while wearing blinders.

First, high profile athletes are by far in the minority. The NCAA and its members contain more than 460,000 student-athletes[1]. While those like Johnny Manziel or Todd Gurley are in the news far more frequently and generate far more income than most of the athletes, the decisions made regarding the pay of college athletes would affect all of those 460,000 athletes.

Second, universities like the University of Alabama or the University of Texas are in the small minority of universities that actually make money each year. Of the 228 athletics departments at NCAA Division I public schools, just 23 generated enough money in 2012 to cover their own expenses[2]. Of those 23, 16 received some sort of subsidy to help cover those expenses[3]. That is just the public schools in Division I, not considering the schools that make up Division II and III[4].

Finally, the NCAA’s total revenue is deceiving. While it is true that the revenue is substantial[5], the funds are not simply stacked up for NCAA president Mark Emmert to swim through like Scrooge McDuck. Those funds are used to support operational expenses and athlete travel expenses for 89 national championships in 23 sports, provide catastrophic-injury insurance coverage for all athletes, various grant, scholarship, and internship programs, reimbursement to schools that provide scholarships and sponsor sports, and helping athletes who need educational material, clothing, and emergency travel expenses[6].

Taking the issue in light of those three factors gives proper context to the discussion. It is not simply an issue of taking the piles of money that were earned by athletes and giving it back to them. The decision made in regard to compensation of these athletes will have some effect on all 460,000 of the athletes, each of the universities they compete for, and on the funds used to help the athletes and allow them to compete.

The end goal for all of those advocating for athlete payment is to simply redistribute the revenue from universities and the NCAA back into the pockets of athletes. However, it is not that simple. Will each of the athletes be paid? Just the athletes in revenue producing sports? If it is just revenue producing sports, will pay be different from player to player? Where will the funds come from?

If it were decided that all athletes should be paid, regardless of sport, this means that hundreds of thousands of athletes will need to receive money. Even if the revenue of the programs in the black were combined with that of the NCAA, without considering the debt of the other schools or the operating expenses that go along with the NCCA, the return to each student would be rather minimal. However, when taken in light of the universities running at a deficit and the cost incurred by the NCAA to fund the events and help the athletes, it would be impossible.

That leaves the option of paying just some of the athletes. It stands to reason that if just some of the athletes are paid, it should be those that are producing income for the universities. This is typically limited to men’s football and basketball, and women’s basketball. If each of those athletes at all of the universities of those programs are paid, it is still likely to be a substantial sum of money from wherever it is taken. The majority of this money would likely come from the NCAA. Doing so would likely force the NCAA to reallocate money that had been used to fund non-income producing sports, their athletes, and the championships for those sports, to be given to athletes in income producing sports. Ultimately, it would likely doom some, if not many, of the non-income producing sports. This would eliminate the educational and personal development opportunities provided to thousands of students through those sports and the accompanying funds and scholarships.

Alternatively, we could pay just some of the athletes in the income producing sports. Advocates like sports analyst Jay Bilas believe that payment of the athlete should be left up to the university, and the free market should drive the payment amount[7]. This would mean that the universities who have revenue beyond their expenses could then choose to use that revenue how they please, paying certain players as much as they see fit[8]. While the free market argument seems more plausible than the rest, it will also likely have a substantial detrimental impact to the non-income sports landscape and its athletes. Surely, universities will use their funds to try and drive up income for income-producing sports. This means taking it away from non-income producing sports or eliminating those programs altogether. Again, these athletes would lose out on the educational and developmental opportunities that they likely would not get otherwise.

If the goal of college athletic is strictly money, then perhaps it is possible, but I believe it still stands for something more. If it does, then the cost of paying athletes outweighs the benefits of doing so.

[1] The NCAA Budget: Where the Money Goes, NCAA, http://www.ncaa.org/health-and-safety/ncaa-budget-where-money-goes (last updated Oct. 15, 2013).

[2] Steve Berkowitz Steve Berkowitz, Jodi Upton & Erik Brady, Most NCAA Division I Athletic Departments Take Subsidies, USA TODAY (July 1, 2013, 12:48 PM) http://www.usatoday.com/story/sports/college/2013/05/07/ncaa-finances-subsidies/2142443/

[3] Id.

[4] Id.

[5] The NCAA Budget: Where the Money Goes, supra note 1.

[6] Id.

[7] Ed Sherman, My full Q/A with Jay Bilas on Pay-For-Play: NCAA ‘Unwilling to do the Right Thing’: Advocates Free Market System (Feb. 14, 2014), http://www.shermanreport.com/my-qa-with-jay-bilas-on-pay-for-play-ncaa-unwilling-to-do-the-right-thing-this-is-pro-sports/

[8] Id.

March Madness: The Madness of Not Paying College Basketball Players by Christopher Becker

March Madness: The Madness of Not Paying College Basketball Players

By

Christopher Becker

            Tournament time is upon us. Last week, the yearly ritual for many of filling out brackets gave way to well-played, thrilling games and buzzer beaters. Millions are captivated by the high octane drama involved in upsets and busted brackets. The Madness of March often shadows some of the shortcomings of the game. Whether it be pace of play, lack of scoring, officiating or any number of other things about the progression of the game on the court, time and criticism apparently stand still while we all begin our annual month long infatuation with the sport.  Although this is a time for celebrating the game in general as well as the passion of the athletes and students, it is when the most focus is on the game that the biggest opportunity for correcting some of its ills presents itself. This opportunity should be seized to continue the all important discussion of compensating athletes.

In 2010, Turner Broadcasting purchased the rights to broadcast the Tournament and agreed to participate in certain marketing activities with the National Collegiate Athletic Association.[1] This deal is set to run 14 years from 2011-2024.[2] For the rights to broadcast the games, Turner Broadcasting paid an astounding $10.8 Billion Dollars.[3] Yes, Billion with a “B.” 68 teams are selected for the tournament, and every single game is available to watch on television.[4] Not only is this broadcasting agreement incredibly lucrative for the NCAA,[5] there is also over a billion dollars in advertising revenue generated by the tournament.[6] This advertising revenue is likely to continue or even increase as a result of the Tournament’s superb television ratings.[7]

With record setting ratings and incredible advertising revenue being produced, both parties are surely enjoying the fruits of their agreement. However, those who contribute most to the product, the players themselves, directly receive none of the revenue generated from the tournament.[8] There are those that argue players should not be paid.[9] Not so coincidentally, this would leave more revenue for all parties profiting from inter-collegiate athletics to share. For the NCAA, it would be awfully unfortunate if their $71 million dollar “surplus” (let’s be careful and not call it profit because of course the NCAA is a non-profit organization) were eroded in any way.[10] The justifications offered for not paying athletes range from the fact that it would somehow diminish the excitement surrounding the events,[11] to schools invest in athletes with the amount of money they spend per athlete,[12] to the value of their education is sufficient compensation.[13] These arguments deserve little credence when one simply acknowledges the popularity of professional sports, the profitable return the schools and NCAA receive from the money spent on student athletes, and in some instances, such as at the University of North Carolina Chapel Hill, the work that goes into the degree and the skills it really confers as a result of the desire of schools to guarantee players are eligible to play.[14]

The fact that players do not receive any of the revenue directly should be especially unnerving when one considers the plight of the athlete more closely. For instance, the University of Connecticut Huskies made a remarkable championship run which saw them win the necessary six games to be crowned tournament champions. Unfortunately, this was not the only story from the team’s season. Star guard Shabazz Napier had this to say in reference to the need for athletes to be compensated, “we have hungry nights that we don’t have enough money to get food.”[15] There are many other examples of athletes expressing similar sentiments. Specifically, Jalen Rose has been outspoken about his struggles during his time playing basketball at the University of Michigan.[16] Although the NCAA has changed some of its rules concerning food[17], the fact of the matter is that athletes still have a multitude of other expenses to worry about and should be compensated in some way in light of the revenue produced off their activities.

Although in the interest of time the matter cannot be explored in greater detail, the unconvincing reasons given for not paying student athletes, the struggles they face even with academic scholarships, and the amount of revenue their activities produce serve as several important reasons that the NCAA should pay College Basketball players. This discussion needs to be continued and furthered as we enjoy the rest of this year’s Tournament.

[1] Press Release, National Collegiate Athletic Association, CBS Sports, Turner Broadcasting, NCAA Reach 14 Year Agreement (Apr. 22, 2010) http://www.ncaa.com/news/basketball-men/2010-04-21/cbs-sports-turner-broadcasting-ncaa-reach-14-year-agreement.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Bruce Horovitz, March Madness Ad Haul Spirals Higher than Any Sport, USA TODAY (Mar. 17, 2013, 5:33 PM), http://www.usatoday.com/story/money/business/2013/03/17/march-madness-ad-revenue-super-bowl-advertisers/1991379/.

[7] Scott Phillips, More Record TV Ratings for the 2015 NCAA Tournament, NBC SPORTS (Mar. 22, 2015, 1:00 PM), http://collegebasketballtalk.nbcsports.com/2015/03/22/more-record-tv-ratings-for-the-2015-ncaa-tournament/.

[8] Matthew Futterman, Should Athletes Get a Piece of the NCAA Tournament Revenue?: Whether to Pay College Athletes Remains One of the Most Explosive Issues in Sports, WALL ST. J. (Mar. 17, 2015, 1:06 PM), http://www.wsj.com/articles/should-athletes-get-a-piece-of-the-ncaa-tournament-revenue-1426610424.

[9] Darren Rovell, NCAA Holds Firm: No Pay for Play, ESPN (Mar. 26, 2015, 5:30 PM), http://espn.go.com/college-sports/story/_/id/10119750/ncaa-president-mark-emmert-insists-pay-play-model-coming.

[10] Steve Berkowitz, NCAA Had Record $71 Million Surplus in Fiscal 2012, USA Today (May 2, 2013, 8:58 AM), http://www.usatoday.com/story/sports/college/2013/05/02/ncaa-financial-statement-surplus/2128431/.

[11] Jeff Morganteen, Should Student Athletes Be Paid? No, Says NCAA President, NBC NEWS, http://www.nbcnews.com/business/careers/should-student-athletes-be-paid-no-says-ncaa-president-n62671 (last visited Mar. 26, 2015).

[12] Rovell, supra note 9.

[13] Jeffrey Dorfman, Pay College Athletes? They’re Already Paid Up To $125,000 Per Year, FORBES (Aug. 29, 2013, 8:00 AM), http://www.forbes.com/sites/jeffreydorfman/2013/08/29/pay-college-athletes-theyre-already-paid-up-to-125000year/.

[14] For more information on the University of North Carolina Scandal see Dennis Dodd, North Carolina Academic Case Puts NCAA and its ‘Mission’ on Trial, CBSSPORTS.COM (Mar. 18, 2015, 11:55 AM), http://www.cbssports.com/collegebasketball/eye-on-college-basketball/25112560/north-carolina-academic-case-puts-ncaa-and-its-mission-on-trial.

[15] Shabazz Napier: “Some nights I go to bed starving,” YOUTUBE, https://www.youtube.com/watch?v=fFdRk2DYolM (last visited Mar. 26, 2015) (Warning: YouTube comments may contain graphic or offensive language).

[16] Aaron McMann, Jalen Rose Proposes a $2,500 a Semester Stipend for College Athletes, USA Today (Sept. 25, 2013, 5:50 PM), http://www.usatoday.com/story/sports/ncaab/2013/09/25/jalen-rose-former-nba-player-proposes-semester-stipend-for-college-athletes/2871749/.

[17] Michelle Brutlag Hosick, Council Approves Meals, Other Student-Athlete Well-Being Rules, http://www.ncaa.org/about/resources/media-center/news/council-approves-meals-other-student-athlete-well-being-rules (last visited Mar. 26 2015).

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