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Solitary Confinement: on the Eve of Wider Sea Change By: Anna Critz


Solitary Confinement: on the Eve of Wider Sea Change

By: Anna Critz

“The United States is a nation of second chances, but the experience of solitary confinement too often undercuts that second chance.” –President Barack Obama[1]

Just last week, President Barack Obama announced in an opinion piece in the Washington Post that he had chosen to adopt certain new reforms regarding the use of solitary confinement in the federal prison system.[2]  Among those reforms are “banning solitary confinement for juveniles and as a response to low-level infractions, expanding treatment for the mentally ill and increasing the amount of time inmates in solitary can spend outside of their cells.”[3]  In the op-ed defending his course of action, the president cited specifically the negative psychological effects of solitary confinement on prisoners and how its use undermines the critical goal of prisoner to society re-entry.[4]  While this is only one step, it may be indicative of a larger trend—that is, we may be on the brink of wider sea change on the important civil rights issue of the use of solitary confinement in prison settings.

Solitary confinement refers to the practice in which prisoners are held in separate units away from the rest of the general population of the prison.[5]  Solitary confinement inmates are most often held in small, Spartan cells for twenty-three hours per day with one hour for exercise.[6]  Human interaction is limited to meals pushed through an opening in the door.[7]  When the prisoners are fortunate enough to have windows in their cells, those windows look out at nothing “but more prison.”[8]  When the prisoners are removed from their cells for something special (a meeting with their attorneys for instance), they are marched passed other inmates who are often told to face the wall and not interact with the solitary confinement prisoners.[9]  It is truly extreme isolation.

And it is a controversial practice.  Studies have shown that prisoners in solitary confinement experience terrible mental health outcomes, that they develop a host of different conditions from depression to anxiety to extreme paranoia and obsessive thoughts and behaviors.[10]  While solitary confinement inmates make up only 5 percent of the total number of people incarcerated, they account for 50 percent of all prison suicides.[11]  Critics of the practice call it a “grave human rights abuse” that has already been denounced in many countries and laud President Obama for the steps he has taken to restrain the practice in recent weeks.[12]  Others, like Norman Seabrook, the head of New York City’s Correction Officers’ Benevolent Association, disagree with the president’s measures.[13]  Mr. Seabrook sees solitary confinement as a necessary tool to maintain order in the American prison system, a stick for those whom normal carrots and sticks do not incentivize and argues the president’s reforms ignore the daily circumstances of life as a correction officer. [14]

Solitary confinement is currently constitutional in the United States.[15]  Some inroads to curb it have been made, however.  For instance in 2015, California solitary confinement plaintiffs settled a monumental class action suit in that state, resulting in immediate changes to the state’s use and review policies for solitary confinement.[16]  Now, with this recent step from the executive branch to restrict the practice, solitary confinement may very well be the next frontier in civil rights litigation.  One need only look to Justice Kennedy’s concurrence in the 2015 opinion of Davis v. Ayala to find the Supreme Court might be willing to lead a larger sea change when it comes to the practice.[17]  Justice Kennedy veered from the issue of the case to discuss the severe conditions that the respondent likely faced as a solitary confinement prisoner of more than twenty years.[18]  In his concurrence, he noted the long history of scholarship surrounding the link between solitary confinement and mental illness, recognized that “[y]ears on end of near-total isolation exact a terrible price,” and quoted Dostoyevsky in finding that a society might be judged by the state of its prisons.[19]  Justice Kennedy’s words are significant: the court may be willing to hear an Eighth Amendment solitary confinement challenge soon.



[1] Barack Obama, Barack Obama: Why we must rethink solitary confinement, Wash. Post, (Jan. 25, 2016),

[2] Id.

[3] Id.

[4] Id.

[5] See Jason M. Breslow, What Does Solitary Confinement Do To Your Mind,, (Apr. 22, 2014),

[6] Id.

[7] Id.

[8] Editorial Board, Obama is right to reduce the use of solitary confinement, Wash. Post, (Jan. 25, 2016),

[9] See Chandra Bozelko, I experienced the horror of solitary confinement, The Guardian, (Jan. 26, 2016),

[10] See Torture: The Use of Solitary Confinement in Prisons, Center for Constitutional Rights, (May 31, 2012),; Jason M. Breslow, What Does Solitary Confinement Do To Your Mind,, (Apr. 22, 2014),

[11] Chandra Bozelko, I experienced the horror of solitary confinement, The Guardian, (Jan. 26, 2016),

[12] John D. Sutter, Obama is right: No kid should be in solitary confinement, CNN, (Updated Jan. 26, 2016),

[13] Norman Seabrook, Obama is wrong on solitary confinement, USA Today, (Feb. 7, 2016),–wrong-solitary-confinement-column/79649416/.

[14] Id.

[15] See e.g., Beard v. Banks, 548 U.S. 521 (2006); Sandin v. Conner, 515 U.S. 472 (1995).

[16] See Ashker v. Governor of California, Center for Constitutional Rights,; see also Summary of Ashker v. Governor of California Settlement Terms, (Sept. 1, 2015),

[17] Davis v. Ayala, 135 S. Ct. 2187, 2208 reh’g denied, 136 S. Ct. 14, (2015) (Kennedy, J., concurring).

[18] Id.

[19] Id. at 2209-10.

Education – A Fundamental Right? “Separate and Still Unequal” By: Bridget Elizabeth Harris

Education – A Fundamental Right?

“Separate and Still Unequal”




Bridget Elizabeth Harris


Unequal education is not a recent controversy in America. In fact, more than 60 years have passed since the Brown v. Board of Education decision; however, school systems in the United States are still “separate and unequal.”[1] While minorities are now provided with an “equal” opportunity to receive an education, the facilities, learning environments, and resources are far behind those of their wealthier counterparts in better neighborhoods.[2] Across the United States, vast efforts have been made to close the achievement gap between minorities and other races; yet this task has proven difficult – “below par achievement of minority students remains one of the most pressing problems in education.”[3]

For example, by age 2 there are already grave disparities between black and white children.[4] Specifically, “fewer black children demonstrate proficiency in developmental skills such as receptive vocabulary, expressive vocabulary, matching, early counting, math, color knowledge, numbers and shapes.”[5] This bleak reality inevitably continues throughout a child’s matriculation through school. Market research shows that every day 7,000 teenagers become high school dropouts, and African Americans are far more likely to drop out than their white counterparts.[6] Studies show that African Americans are more likely to drop out due to grade retention, unstable home environments, and the lack of successful role models within their immediate environments.[7]


Educational expectations are lower for black children, according to Child Trends a non-profit and non-partisan research center that tracks data about children.[8] Black parents, most of whom are less educated than their white counterparts, don’t expect their children to attain as much education as white parents expect.[9] Lower expectations become self fulfilling prophecies, contributing to lower expectation from the student, less positive attitudes toward school, fewer out-of-school learning opportunities and less parent-child communication about school.[10]


Based on these facts alone, one would assume education is a fundamental right — a right “that has been recognized by the Supreme Court as requiring a high degree of protection for government encroachment.”[11] However, the court in San Antonio Independent School District v. Rodriguez held the contrary.[12] The lawsuit alleged that education was a fundamental right and that those individuals of lesser wealth were a suspect class who were to be protected from wealth based discrimination.[13] The San Antonio Independent School District’s financing system, which was based on local property taxes, disproportionally impacted the education of those students in Edgewood, the poorer minority area. Their parents were not able to contribute the same amount of funds as their wealthier counterparts in primarily white areas of town.[14] The Court, in a 5-4 decision, reasoned that education was not implicitly or explicitly textually present within the Constitution; thus, the traditional standard of review was applied under the equal protection clause (rational basis).[15]  The Court also found the system did not deny educational opportunities to any child.[16]

While the Rodriguez court failed to recognize education as a fundamental right, Justice White dissented on the ground that even though local control of education might be considered a legitimate goal of a school financing system, the means chosen to effectuate that particular goal must be rationally related to achieving that goal.[17] However, the Texas system unconstitutionally discriminated against those parents and children who resided in poorer districts, because those districts had no chance to supplement state funds at the same levels as more affluent districts.[18]

It is apparent that public school systems across the nation are not equal and do not provide the same resources and opportunities, or even the same education for that matter. For example, in 1979, a federal judge ordered two segregated high schools to merge into one, creating Central High School.[19] Central High, located in Tuscaloosa, Alabama, was one of the premiere high schools and integration success stories in the South.[20] Although this was an unpopular move among many, “Central emerged as a powerhouse that snatched up National Merit Scholarships and math-competition victories just as readily as it won trophies in football, track, and golf.”[21] However, the decline of Central High hit when another federal judge released Tuscaloosa City Schools from the court-ordered desegregation mandate that previously governed it.[22] The court reasoned that because Central had successfully achieved integration, the school would be able to manage its own success going forward.[23] However, the court was sadly mistaken. Central High School is no longer the powerhouse it once was; instead, it is a struggling school that serves the city’s poorest students.[24] The school is also 99 percent black – separate and still unequal.[25] “In Tuscaloosa today, nearly one in three black students attends a school that looks as if Brown v. Board of Education never happened.” While Tuscaloosa still has a long way to go, it is not the only city that still has separate and unequal school systems. For many students, a separate and unequal education is the bare reality of every day life.

While America recognizes the importance of education, America has yet to recognize education as a fundamental right. Making education a fundamental right would develop a nation that fully values equal education for all, and not just those from wealthier backgrounds. No matter a person’s socioeconomic status or wealth, they shouldn’t be denied a free “quality” public education. In America, citizens are granted a certain level of autonomy in which a higher education allows for more opportunities. It is no secret that an educated society is a stronger and more equipped society; however, without recognizing education as a fundamental right, the poorest individuals will continue to lag behind their wealthier counterparts in schools that contain little to no resources.




[1] Lindsay Cook, U.S. Education: Still Separate and Unequal, (Jan. 28, 2015),

[2] Id.

[3] Equipping Education Leaders, Advancing Ideas (2015),

[4] Id. at 1.

[5] Id. at 1.

[6] Choices Education Group (1985),

[7] Id.

[8] Id.

[9] Id.

[10] Id.


[11] LII,

[12] San Antonio Indep. Sch. Dist. V. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278 (1973).

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Nikole Hannah-Jones, Segregation Now, (May 2014),

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

Choose Life: The Death Penalty is a Major Human Rights Violation By: Kate Bonner

Choose Life: The Death Penalty is a Major Human Rights Violation

By: Kate Bonner

On September 30, 2015, Kelly Gissendaner was the first woman executed in Georgia since World War II  for convincing her boyfriend to murder her husband. [1] Her death and the botched execution of Clayton Lockett in 2014 has caused the resurfacing of conversations and debates over the legality of the death penalty. [2] The Eighth Amendment to the United States Constitution states, “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” [3] The death penalty debate usually focuses on whether the concept and the carrying out of the death penalty could be considered cruel and unusual punishment. This blog will focus more generally on the extent to which the death penalty threatens basic human rights.

Punishment has always been seen as a way to discourage potential criminals from unlawful action and in some ways it does. [4] Deterrence is a common component of arguments developed in support of the death penalty. [5] It is logical to believe that people would not kill knowing that their own death might be a result. However, many times due to a lack of education or pure ignorance of the law, people do not even consider that death may be a consequence to their actions. Ultimately, whether the death penalty truly deters crime is inconclusive. [6] The uncertain possibility of a deterrent affect is not enough to allow the detrimental violation of human rights caused by the death penalty.

In preparation for this blog, I met with Richard Jaffe, the Senior Partner of the Birmingham, Alabama law firm of Richard Jaffe and Associates, P.C. [7] Mr. Jaffe has handled 5 federal death penalty cases and he is the only attorney in the nation who has successfully defended three death row inmates at new trials after they had previously been sentenced to death. [8] According to Mr. Jaffe, the ultimate violation caused by the death penalty is that it cheapens human life and it does nothing to further the goals of our civilized society. [9] While our criminal justice system should strive to fit the punishment to the crime, our system should also serve as an example. Allowing our society to take a man’s life without of a clear deterrent effect, seems to be setting the wrong example. We should punish, but taking a human life regardless of the crime seems to take punishment a step too far.

Mr. Jaffe’s biggest concern is with the uncertainty that not only exists with deterrence statistics but also with the uncertain and arbitrary nature of who receives the death penalty. [10] Some people believe the death penalty should be used on the worst of the worst. However, who are the worst of the worst? Is it the serial killer, the mass shooter at a school, the guy who opens fire in a fit of road rage or the woman who convinces her boyfriend to kill her husband? Deciding who deserves the death penalty has proved to be an arbitrary decision to make. Mr. Jaffe states, “the law is not equipped to separate out the worst from the not so bad.” [11] In Furman v. Georgia, the Supreme Court recognized the arbitrary nature of the death penalty and attempted to apply consistency standards. [12] These standards were overturned in Greg v. Georgia. [13] A level of consistency in the use of the death penalty was unattainable and remains so. There is no logic in figuring out who will receive the death penalty and who will not. The arbitrary nature of death penalty sentencing proves its status as a human rights violation and only strengthens the inconclusive nature of death penalty deterrence. The death penalty cannot deter a crime when it is uncertain whether the crime will receive a death sentence ever time.

Kelly Gissendaner’s execution was scheduled but did not take place twice because of cloudy drugs and bad weather. [14] The mental and emotional turmoil caused by preparing oneself to die and having that delayed should constitute cruel and unusual punishment at its core. However, the one responsible for murder is not the only one affected by the death penalty. Many may defend the assertion that it constitutes cruel and unusual punishment for families to have to give up their family members of friends in such a horrific and public way. Gissendaner’s children chose to make a final appeal in front of the Georgia Board of Pardons and Paroles instead of going to see their mother one last time. [15] From this example, one can see the affect of the death penalty on a family can be absolutely heartbreaking and equally torturous. The death penalty is a corrupt form of punishment that needs to be reconsidered.

The affects of the death penalty reach farther than many would like to acknowledge. While there are people who are so sick and depraved of heart to take the life and even multiple lives of other people, the death penalty does not serve as the appropriate answer. A life sentence costs less than the complications that come with sentencing someone to death. [16] It is time the pros and cons are weighed against one another and we reform this area of our criminal justice system.



[1] Mark Berman, Georgia executes Kelly Gissendaner after Supreme Court denies stay requests, The Washington Post (Sept. 30, 2015),


[2] Id.; Jeffrey E. Stern, The Cruel and Unusual Execution of Clayton Lockett, The Atlantic (June 2015),


[3] U.S. Const. Amend. VIII. § 1.


[4] Max Ehrenfreund, There’s still no evidence that executions deter criminals, The Washington Post (April 30, 2014),


[5] Id.


[6] Id.


[7] Interview with Richard Jaffe, Senior Partner, Jaffe, Handle, Whisonant & Knight, P.C. (Oct. 27, 2015).


[8] Id.


[9] Id.


[10] Id.


[11] Id.


[12] Furman v. Ga., 408 U.S. 238 (1972).


[13] Gregg v. Georgia, 428 U.S. 153 (1976).


[14] Mark Berman, Georgia executes Kelly Gissendaner after Supreme Court denies stay requests, The Washington Post (Sept. 30, 2015),


[15] Holly Yan, Catherine E. Shoichet, & Moni Basu, Georgia Inmate Kelly Gissendaner executed after failed appeals, CNN (Sept. 30, 2015, 4:26 PM),


[16] Interview with Richard Jaffe, Senior Partner, Jaffe, Handle, Whisonant & Knight, P.C. (Oct. 27, 2015).


Beyond Syria: Immigration Policy in the United States By: Jadie Mims

Beyond Syria: Immigration Policy in the United States

By: Jadie Mims


As civil war in Syria, destitution and political oppression in sub-Saharan Africa and enduring unrest in Libya force a growing number of innocent civilians out of their homes and into an international search for the protections of political asylum, one thing has become increasingly clear: The American public opinion on immigration policy is in large part as hypocritical as it is diverse.


With media coverage focused on some of Europe’s more xenophobic responses (see: Hungary) to the flood of migrants fleeing war-torn nations in search of safety, it is assuredly easier for Americans to point and criticize than it would be to take an introspective look at the inadequacy of our own policies on immigration.[i] Quick to point out what they see as being an insufficient bureaucratic response to the refugee crisis facing Europe, United States policymakers, presidential candidates and much of the American public seem to turn a blind eye not only to our role in both creating the regional unrest at the base of the issue (a topic for another day) and in accepting our share of the region’s migrants, but also to recurring issues with our own (mis)treatment of refugees seeking political asylum in the United States.


A hot-button topic just last year, political and legal debate over the summer 2014 influx of tens of thousands of migrants fleeing poverty and historic levels of violence in the “Northern Triangle” countries of Central America—El Salvador, Guatemala, and Honduras—has largely faded. Though coverage of the crisis has seemingly taken a back seat to the newer, shinier situation in Europe and the Middle East, our own government’s treatment of refugees seeking asylum in the United States is in many ways just as disheartening.


The migration of refugees fleeing Central America, which in fiscal year 2014 saw U.S. Customs and Border Control apprehend more than 68,000 unaccompanied minors and roughly 69,000 migrants traveling together as families, was at the time called by the Obama administration an “urgent humanitarian situation.” Through measures taken domestically to reinforce security at our southern border and increases in our funding and support of Mexican efforts to intercept immigrants crossing their own southern border en route to the United States, we have been able to effectively abate the flood of migrants attempting to enter the country illegally.


Although questions abound concerning the Mexican role in vetting these migrants (and the country’s compliance with international legal norms in carrying out detention and deportation procedures), the United States’ treatment of those “fortunate” enough to safely complete the trip to American soil has been a topic of intense scrutiny.


Central to this discussion is an analysis of the rights afforded to migrants of different legal classifications upon entering the country. For legal purposes, immigrants—people voluntarily opting to resettle outside of their home country—and refugees—those forced to flee their home countries for fear of death or persecution—are two very distinct groups.[ii] Immigrants entering the United States are afforded a legal process through which they can seek residency and eventually citizenship.[iii] Those choosing to skip this process and enter the country illegally are subject to deportation.[iv] Refugees, on the other hand, are entitled to apply for asylum, which, if granted, affords them federal protection against deportation to their home country.[v]


The process of applying for refugee status can be long and arduous, even for those cases that are legitimate and should eventually be granted asylum. Often, this journey begins with incarceration in remote detention centers run by the Department of Homeland Security.[vi] Though migrants may be unable to effectively read or write in English, they are not afforded the right to legal representation.[vii] Unless they can either afford to hire an attorney themselves or are lucky enough to find assistance from those few that volunteer, these individuals often must attempt to navigate the complex system of laws governing asylum by themselves.[viii] Those that are ultimately refused protection as a refugee face deportation to their home country, which in many cases may effectively prove to be a death sentence.[ix]


Further impeding entry into the United States is a quota system designed to limit the number of refugees admitted annually. Though legislation restricting immigration to the United States can be traced back to the Chinese Exclusion Act of 1882, modern policy is rooted largely in the Immigration and Nationality Act (INA) of 1965.[x] Though the INA abolished earlier quota systems capping the number of immigrants from certain nationalities in favor of an annual worldwide limit on the number of permanent immigrants to be allowed entrance (at 675,000, free of national origin distinctions), it granted Congress and the President the authority to determine an additional number of refugees to be admitted.[xi] This number, created to reflect “humanitarian concerns” but limited to a consideration of what would otherwise be “in the national interest,” is dissected by a pre-determined regional allocation.[xii] To illustrate, for fiscal year 2015, the number of worldwide immigrants to be admitted was capped at 70,000, of which 17,000 could hail from Africa, 13,000 from “East Asia,” 33,000 from the “Near East and South Asia,” and so on.[xiii] Of these 70,000, only 4,000 spots were allocated to refugees fleeing Latin America or the Caribbean.[xiv]


In the wake of the current refugee crisis and subsequent international pressure to increase the number of worldwide refugee admissions in the immediate future, Secretary of State John Kerry announced a plan last month under which the United States would expand its annual admission quota to 100,000 refugees by 2017.[xv] Though 2016’s worldwide cap has been set at 85,000, the number of refugees to be admitted from Latin America and the Caribbean has been decreased, to a measly 3,000.[xvi]


For a country that takes such pride in being “the land of the free,” a nation founded by immigrants with an open door to those willing to work hard to better themselves and for a shot at “the American dream,” we sure are making it difficult for those arriving a little late to the party. Sensible arguments can and have been made from both sides of the aisle on immigration reform, and policies breaking down barriers to refugee or legal immigrant status or creating a markedly easier path to citizenship have both costs and the potential for dire consequences. But our position in the world and history of accommodating those able to join and contribute to the prosperity of America lead to one conclusion: something more needs to be done.

[i] Eleni Kounalakis, Hungary’s Xenophobic Response, N.Y. Times (Sept. 6, 2015),


[ii] Michael Martinez & Miguel Marquez, What’s the difference between immigrant and refugee?, CNN (July 16, 2014),


[iii] Id.


[iv] Id.


[v] Id.


[vi] Holly Cooper & Jayashri Srikantiah, Op-Ed., The refugee tragedy in our own backyard, L.A. Times (Oct. 8, 2015),


[vii] Id.


[viii] Id.


[ix] Sibylla Brodzinsky & Ed Pilkington, US government deporting Central American migrants to their deaths, The Guardian (Oct. 12, 2015),


[x] How the United States Immigration System Works: A Fact Sheet, American Immigration Council (Mar. 1, 2014),


[xi] Id.


[xii] Memorandum from President Barack Obama to Sec’y of State John Kerry (Sept. 30, 2014) (on file at,


[xiii] Id.


[xiv] Id.


[xv] Michael R. Gordon, Alison Smale, & Rick Lyman, U.S. Will Accept More Refugees as Crisis Grows, N.Y. Times (Sept. 20, 2015),

[xvi] Id.

The Forgotten: Incarcerated Pregnant Women, Access to Abortions, and Implications for the Rest of Us. By Samantha Pline

The Forgotten: Incarcerated Pregnant Women, Access to Abortions, and Implications for the Rest of Us.

By Samantha Pline

Planned Parenthood, the right to abortion, and access to women’s healthcare has been a hot topic in politics and the press in recent months. In all of these conversations, one group of women are often left out, pregnant women in prison. These women represent a part of the population that remains without a strong voice and is often overlooked by advocate groups. Women’s healthcare in prison is not a well-studied field, and the issues uncovered in those studies have wider implications in healthcare advocacy. People incarcerated in women’s prisons often do not have access to the medical care that they have a right to. Access to healthcare that is targeted to a female population, including access to gynecological and obstetric services, generates greater gender equality. Estelle v. Gamble guarantees the right to medical care for inmates. “…deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’… [is] proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care.”[i]

This eighth amendment argument for medical care has been the cornerstone for legal struggles for women to access pre-natal, abortion, and post-natal care. “…incarcerated pregnant women face challenges that range from convincing prison officials that they are pregnant or are in labor to obtaining sufficient nutrition or necessary prenatal care. Once birth approaches, they often face a series of constraints and indignities ranging from loss of control over the timing and method of delivery to the prohibition of ordinarily-available pain medication and the micro-managing of who may be present in the delivery room.”[ii] The Federal Bureau of Prisons has two provisions that related to women prisoners seeking abortions: (1) “A pregnant inmate will be offered medical, religious, and social counseling to aid her in making a decision whether to carry the pregnancy to full term or to have an elective abortion. (2) A pregnant inmate, who so chooses, will be provided an elective abortion at Bureau expense, only when the life of the mother would be endangered if the fetus is carried to term, or in the case of rape.”[iii] While this policy does allow for a woman in a federal prison to obtain an abortion, it does not guarantee speedy treatment, instead it encourages counseling of all types to ‘help’ the woman reach her decision.[iv] Prison officials could, and do, use this to delay any abortion proceedings until past the point of legality.[v] These actions are a blatant violation of a woman’s 8th and 14th Amendment rights, and some circuit courts have held that.

Incarceration rates for women are among the fastest growing in the nation, and between six and ten percent of those women are pregnant.[vi] Women end up pregnant in prison for a variety of reasons. One very common reason for ending up incarcerated are child protection laws that states have applied to fetuses as early as ten weeks, though some states, like Mississippi, have tried to create ‘personhood’ laws that apply at the moment of conception.[vii] A large majority of these women are either indigent or of a racial minority, which puts them at a significant disadvantage in the U.S. Justice system.[viii] Also, some women fall pregnant while already incarcerated, whether through consensual conjugal visits, or through liaisons with or sexual abuse by guards.

Beyond basic barriers for medical care that women face in prison, they also face major obstacles to abortion. “Women do not lose the right to have an abortion simply because they are imprisoned. The right to abortion, rooted in concepts of personal liberty guaranteed by the Fourteenth Amendment, is well-established as a matter of law…”[ix] The obstacles that many states place on access to abortions are magnified by being incarcerated. However, these treatments are not always provided on location. In most states, the women seeking an abortion, and their families, must facilitate all of the arrangements and provide funding for the abortion.[x] In some cases, these women are told that they have no right to an abortion because it is an elective procedure and it will not be provided unless a doctor holds it to be a medical necessity.[xi]

What many of these policies neglect to consider is that many women enter the prison system facing hurdles like substance abuse, mental illness, and the after-effects of physical and sexual violence.[xii] By denying them the option of proper medical care and the option for abortion, prison officials are placing these women in a very difficult position. Very few women receive proper medical care while in prison, and carrying a child to term and giving birth in prison are both very difficult and can be very dangerous.[xiii] If these women are pregnant due to rape, then forcing them to continue their pregnancies can cause deep psychological scars.

Incarcerated women are a microcosm representative of the larger struggles that all American women face in order to gain access to proper medical care. The way these women are treated when they seek to receive an abortion or to get pre-natal care, shows how willing people are to deny basic human needs to women in the name of ‘protecting the child’ or ensuring that policy is followed, with no exceptions. “A true commitment to all pregnant women and mothers would require investigation of all aspects of reproductive health care in all contexts, not just the care provided to women seeking to end their pregnancies.”[xiv] The refusal to grant women the right to abortion violates the 14th amendment and the Casey test by placing an ‘undue’ burden on the woman, and it the policy violates the Turner test, then a fundamental right decided in Roe v. Wade had been violated.[xv] Abortion rights are just a step that women in the country need to take in order to establish a right to health. “‘Health’ in the human rights sense goes beyond the absence of illness, encompassing the right to seek complete mental and physical well-being.”[xvi] If women who are wholly dependent on the government can be so callously stripped of constitutional rights, then what protection do other women have?

[i] Estelle v. Gamble, 429 U.S. 97, 104-5 (1976)

[ii] Deborah Ahrens Incarcerated Childbirth and Broader “Birth Control”: Autonomy, Regulation, and the State, 80 Mo. L. Rev. 1, 6.

[iii] §551.20 (2)(c-d)

[iv] Id.

[v]  Alexandria Gutierrez Sufferings Peculiarly Their Own: The Thirteenth Amendment, In Defense of Incarcerated Women’s Reproductive Rights, 15 Berkeley J. Afr.-Am. L. & Pol’y 117,145-5

[vi] Id. at 139.

[vii] Lynne Paltrow and Jeanne Flavin The Policy and Politics of Reproductive Health: Arrests of and Forced Interventions on Pregnant Women in the United States, 1973-2005: Implications for Womens Legal Status and Public Health. Journal Of Health Politics, Policy, and Law, Vol. 38, No. 2, 299, 301- 309.

[viii] Id. at 311.

[ix] Rachel Roth Obstructing Justice: Prisons as Barriers to Medical Care for Pregnant Women, 18 UCLA Women’s L.J. 79, 86 (2010).

[x] Id. at 86-7.

[xi] Id.

[xii] Sufferings Peculiarly Their Own: The Thirteenth Amendment, In Defense of Incarcerated Women’s Reproductive Rights, 15 Berkeley J. Afr.-Am. L. & Pol’y 117, 139.

[xiii] Id. see also supra note 8 and note 6.

[xiv] Lynn Paltrow Testimony to the South Dakota Task Force to Study Abortion (2005), 9.

[xv] Angela Thomas Note: Inmate Access to Elective Abortion: Social Policy, Medicine, and the Law 19 Health Matrix 539, 547-9 (2009)

[xvi] Hilary Hammell Symposium: From Page to Practice: Broadening the Lens for Reproductive and Sexual Rights: Is the Right to Health a Necessary Precondition for Gender Equality? 35 N.Y.U. Rev. L. &Soc. Change 131, 133.




by Tyner Helms

Obtaining meaningful employment is one of the most important aspects of life to people in this country. Fundamental to the “American dream” is the notion that if you work hard and apply yourself, you will be able to provide a good life for you and your family. This has become increasingly difficult in today’s society for individuals with a criminal background. Many employers ask about an applicant’s criminal history on job application forms. Furthermore, in the information age that we currently live in, businesses can easily access an applicant’s criminal record by conducting background checks. This is significant due to the fact that many employers have a policy of immediately disqualifying applicants with criminal records without taking into account the nature of the crime, the amount of time that has passed since the conviction, or the qualifications of the particular individual. A conviction is not always needed to disqualify an applicant from employment. Many job applications ask if the individual has merely been arrested for a crime, even if the charges were eventually dropped.[1]

Some restrictions only apply to applicants who have committed a felony, or that have actually been convicted of a crime. Many felony convictions have blanket provisions attached to them, resulting in non-violent, first time offenders to be grouped in with violent criminals.[2] In addition, a felony is a crime that is punishable by imprisonment for a period of one year or more, which includes many seemingly minor crimes.[3] For example, in Maryland, it is a felony to injure a racehorse, or to possess fireworks without a license.[4] In addition, some states have laws prohibiting licensing boards from issuing licenses to applicants with felony convictions.[5] This presents an enormous barrier to employment because the number of occupations subject to licensing has grown substantially in recent history. Doctors and lawyers are not the only professions that require a license. Many occupations that are attractive to “low-skilled workers” are not regulated by licensing boards, such as ambulance drivers, barbers, and contractors.[6] Although hiring policies of this nature are rampant among businesses, these restrictions are not limited to the private sector. Several states have placed an absolute ban on public employment for ex-felons, and other ban ex-felons from working for the state for a certain amount of time after their release from prison.[7]

Employment restrictions for people with a criminal background have faced equal protection challenges under the Fourteenth Amendment of the Constitution. Unless a statute burdens a “fundamental right” or discriminates against a “suspect” class of people, it will be evaluated using a rational basis review.[8] Under rational basis scrutiny, the statute will be upheld as long as it is rationally related to a legitimate government objective.[9] This is an extremely low standard to meet. Applying this analysis to the situation at hand, employment is not considered a “fundamental” right under the law, and felons are not a “suspect” class.[10] Therefore, a law banning ex-felons from employment only has to pass rational basis scrutiny. Protecting the health, welfare, and safety of the public is a legitimate government objective, and generally speaking, restrictions on employment for ex-felons is rationally related to achieving that purpose.[11] This means that employment restrictions on criminals have a high likelihood of succeeding against an equal protection challenge.

There does seem to be potential success in challenging these occupational restrictions under the Due Process clause of the Fourteenth Amendment. In Schware v. Board of Bar Examiners, the New Mexico Bar denied admission to an applicant partly because of his arrest record.[12] The Supreme Court held that there must be some rational relationship between the occupational qualifications of the bar and the applicant’s fitness and capacity to perform the job

to comply with Due Process, and reversed the bar’s exclusion of the applicant.[13]

The Equal Employment Opportunity Commission (EEOC) has issued regulations attempting to reign in the discriminatory hiring practices of employers. Under the EEOC, employers are prohibited from discriminating based on race, color, religion, sex, or national origin because it is considered disparate treatment.[14] However, individuals with a criminal record are not included in the protected categories of people under the guidelines.[15] As long as employers apply policies of disqualifying applicants with a criminal background neutrally, they will not violate the EEOC regulations. For example, if a business declines to hire an African-American person with a criminal conviction, it cannot choose hire someone who is white with a similar conviction.[16] The EEOC also prohibits discrimination by disparate impact, meaning that hiring practices that disproportionately affect protected racial or ethnic groups can potentially violate the regulations even if there is no intent to discriminate by the employer.[17] Although the disparate impact provision seems effective, employers can often get around it. Instead of disqualifying applicants based on the arrest or conviction itself, employer often consider the conduct underlying the arrest, concluding that such conduct makes the individual unfit to perform the job.[18] Minorities are particularly affected by this loophole because they are statistically more likely to be arrested or convicted than someone who is white.[19]

State legislatures have begun to make progress on this issue. Fourteen states have passed laws prohibiting public employers from having across the board bans on hiring people with criminal backgrounds, forcing them to consider the individual’s qualifications to perform the job.[20] Five states have similar regulations that apply to private employment.[21] In addition, twenty-one states have passed laws that force licensing boards to require a rational relationship between the licensed occupation and an applicant’s criminal record to justify denying him a license.[22] That being said, most states still allow employers to implement blanket bans on hiring applicants with an arrest or conviction, which leaves many people with enormous obstacles to employment.

Since the financial meltdown in 2008, finding a job has been more difficult than it has been in decades, and disqualifying someone simply because of an arrest, without taking into account other circumstances, only adds to the burdens of job hunting. Studies have shown that the most important factor in whether an ex-felon stays out of prison after his release is the ability to obtain meaningful employment.[23] It is understandable for employers to consider criminal convictions when making hiring decisions. Every business wants employees who are trustworthy and can perform the job competently. But applicants should not automatically be disqualified from employment because of an arrest without an analysis of the individual circumstances surrounding the criminal record. Instead, employers should consider factors such as the individual’s job qualifications, the type of crime committed, the amount of time that has passed since the conviction, and the behavior of the applicant since the conviction. Other possible solutions for these employment discrimination problems exist as well. Employers concerned about hiring someone with a drug-related conviction can condition employment on mandatory, random drug testing. State legislatures can prohibit employers from inquiring about an arrest on a job application if it did not lead to a conviction, or allow arrest records to be expunged if the charges were later dropped so that it will not show up on a background check. Lawmakers can also follow in the steps of almost half of the states and require a conviction to be related to the specific employment sought before allowing licensing boards to deny an applicant based on their criminal background. Retribution for wrongful acts is not the only purpose of the justice system. It is also aimed at rehabilitating people so that they can contribute to society in a positive way and pursue the benefits of freedom after they have been held accountable for their actions. To

say that someone with a criminal record is automatically unfit for employment is a slap in the face to our nation’s correctional system, and there remains much progress to be made to reverse this trend.

[1] Standards for Hiring People with Criminal Records, LEGAL ACTION CENTER (last visited October 25, 2015),

[2] Elena Saxonhouse, Book Note, Unequal Protection: Comparing Former Felons’ Challenges to Disenfranchisement and Employment Discrimination, 56 Stan. L. Rev. 1597, 1599 (2004).

[3] Id.

[4] Id.

[5] Id. at 613.

[6] Id. at 613.

[7] Id. at 612

[8] San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 16-17 (1973).

[9] Id.

[10] Schanuel v. Anderson, 546 F. Supp. 519, 524 (S.D. Ill. 1982); see also United States v. McKenzie, 99 F.3d 813 (7th Cir. 1996).

[11] Hawker v. New York, 170 U.S. 189, 198 (1898).

[12] Schware v. Board of Bar Examiner, 353 U.S. 232 (1957).

[13] Id.

[14] EEOC Enforcement Guidance, U.S. Equal Employment Opportunity Commission (April 25, 2012),

[15] Id.

[16] Robb Mandelbaum, U.S. Push on Illegal Bias Against Hiring Those With Criminal Records, The New York Times (June 20, 2012), available at

[17] Id.

[18] Id.

[19] Id.

[20] Standards for Hiring People with Criminal Records, LEGAL ACTION CENTER (last visited October 25, 2015),

[21] Id.

[22] Id.

[23] Elena Saxonhouse, Book Note, Unequal Protection: Comparing Former Felons’ Challenges to Disenfranchisement and Employment Discrimination, 56 Stan. L. Rev. 1597, 1611 (2004).

Unanswered Questions: Same-Sex Marriage Rights in Alabama Post-Obergefell By: Akiesha Anderson

Unanswered Questions: Same-Sex Marriage Rights in Alabama Post-Obergefell

By: Akiesha Anderson


There is little argument against the claim that the Supreme Court’s decision in Obergefell v. Hodges[1] was both long-awaited and greatly appreciated by the LGBTQ community and their advocates. However, as time progresses the feelings of ecstasy associated with this victory will increasingly become mixed with feelings of frustration and confusion. Such frustration and confusion will be the result of same-sex couples and LGBTQ advocates recognizing and beginning to confront many of the questions and problems left unanswered by the Obergefell decision.

Up until last week, a large portion of the questions left unanswered pertained to the tax obligations of now legally recognized same-sex spouses. In fact, for years, homosexual couples have experienced inequitable tax burdens, benefits, and filing complications in comparison to their heterosexual counterparts.[2] This inequitable treatment had even been the case in states which legally recognized same-sex marriage pre-Obergefell.[3] Thus, although some questions might remain, the IRS’ recent clarification and guidance regarding the effects of the Supreme Court’s decision in Obergefell on tax obligations[4] will be much appreciated by same-sex spouses as the upcoming tax season rolls around.

Beyond tax-related questions, increased controversy and litigation are likely to ensue over the upcoming months and years regarding several other effects of and questions stemming from the Obergefell decision regarding same-sex marriage rights. Particularly, two areas that Alabama and its courts foreseeably may be required to deal with are (1) questions regarding the retroactive effects of Obergefell, and (2) the applicability of Obergefell to common-law marriage. This blog post is intended to briefly analyze the complications and questions left unanswered by the Supreme Court in Obergefell regarding how Alabama is to treat same-sex marriage rights in these two areas. Additionally, this blog post seeks to challenge same-sex couple and LGBTQ advocates to begin thinking about and preparing for the legal challenges and controversy that may ensue in the plight to obtain answers to these questions.

The Retroactive Effects of Obergefell

The full retroactive extent of the Supreme Court’s decision in Obergefell remains unclear.[5]  In the immediate aftermath of the Supreme Court’s decision it was clear that “same-sex couples validly married in states that allowed same-sex marriage prior to 26 June 2015 but who live[d] in states that did not previously recognize same-sex marriage [would] now enjoy the benefits of marriage in their state of domicile.”[6] What is less clear however is the question of whether “the advantages of marriage (e.g. the existence of marital or community property) exist from the time [a same-sex couple’s] marriage was confected or from 26 June 2015?”[7] The answer to this question will have major implications on the legal rights and benefits enjoyed by same-sex spouses. Until states determine and clarify a clear rule of law concerning such, the concept of ‘marriage equality’ will remain murky and the source of additional legal contentions.

Here in Alabama, courts have already begun to be confronted with this legal issue. For example, at the time of the Supreme Court’s Obergefell ruling, the case of Hard v. Bentley[8] had been pending within an Alabama federal court since February 2014.[9] The plaintiff in this case, Mr. Hard, was married prior to 2011 in the state of Massachusetts to Dan Fancher.[10] In 2011, while the couple was living in Alabama, Mr. Fancher was killed in a car accident involving a UPS truck.[11] As a result a wrongful death suit was brought against UPS.[12] In the subsequent case of Hard v. Bentley, the question was whether under Alabama law Mr. Hard was entitled to any of the wrongful death case’s proceeds or whether the late Mr. Fancher’s mother was the only legally recognized beneficiary of Mr. Fancher.[13] This question had yet to be answered at the time of the Supreme Court’s ruling in Obergefell.

Whereas prior to the Supreme Court’s decision the issue in Hard v. Bentley, was likely a question of whether Alabama was required to give full faith and credit to same-sex marriages legally recognized in other states. After the Supreme Court ruled in Obergefell however, the question in Hard v. Bentley became that of whether the Supreme Court’s new ruling ought to be applied to the unresolved Hard case.[14] After the Supreme Court’s decision, the defendants in Hard v. Bentley argued that the Supreme Court’s decision should not be applied retroactively in favor of the plaintiff.[15] The plaintiff however argued that “There is a general rule of retrospective effect for the constitutional decisions of the Supreme Court. Only exceptional circumstances warrant departing from the normal rule….the argument that the Obergefell decision should not be applied retroactively really amounts to desperate grasping at straws.”[16] The U.S. District Court of Middle Alabama agreed with Mr. Hard’s argument and consequently ruled in his favor. Thus, Alabama effectively determined that the Supreme Court’s decision was retroactive because “[t]he Supreme Court decision found it unconstitutional both for states to ban same-sex marriage and for states to refuse to recognize as valid a marriage from another state. It doesn’t matter when Alabama refused to recognize a Massachusetts marriage; it was unconstitutional to do so.”[17]

Despite this ruling Alabama’s stance on the retroactive effects of Obergefell is still somewhat unclear. It is arguable that Mr. Hard’s case was unique in several ways. Particularly the fact that his case was already pending within a court at the time of the Supreme Court’s decision and had not previously been negatively disposed of likely worked in his favor. Questions remain however regarding what would have happened however if his case had already been negatively decided in the months or years prior to Obergefell? Would Mr. Hard have the opportunity to have his case reheard or re-decided based on the Obergefell decision? Although seemingly just a hypothetical, there is not telling me how many LGBTQ persons are in precisely that or a similar predicament on today. What legal relief and rights do they now have? And what about the courts and other past defendants? Will courts re-deciding such cases cause too much difficulty? These are only some of the questions that same-sex couples and LGBTQ advocates will have to fight for answers to in the upcoming years.


Obergefell, Alabama, and Common-Law Marriage

Alabama is one of only a very small number of states which legally recognizes common-law marriage.[18]Accordingly, a unique question that same-sex couples and LGBTQ advocates in Alabama will need to seek clarity concerning is how Obergefell affects the vast-number of same-sex couples who during the years preceding Obergefell may have engaged in a celebratory ceremony or elsewise engaged in the requisite behavior to constitute a common-law marriage. Without now obtaining an official marriage certificate, will these couples be able to enjoy all the legal rights, recognitions, and benefits of common-law marriage? Additionally, will they have to comply with the same legal responsibilities? For example, typically, common-law spouses within Alabama that decide to dissolve their relationship are required to complete the same legal processes to divorce as they would have had they originally obtained a marriage certificate.[19] They also are governed by certain rules and laws pertaining to the splitting of property.[20] Thus what obligations and rights now affect same-sex common-law couples? And who is even considered a same-sex common-law spouse in Alabama? These are questions that LGBTQ advocates and courts can expect to try to answer in the months and years ahead.


After the celebratory high following Obergefell begins to wear off, lawyers, legislators, and legislators are encouraged to begin thinking now about the gaps and questions left unanswered by the Supreme Court’s decision regarding same-sex marriage. Although in theory marriage-equality is a concept now enjoyed by all, in actuality same-sex couples and LGBTQ advocates are aware that in actuality marriage rights are not and will not be ‘equal’ until the questions proposed in this blog post as well as others receive answers. The LGBTQ community and advocates should be vigilant in this present period to ensure that many of the remaining barriers to marriage equality are removed.

[1] 135 S. Ct. 2584 (2015).

[2] See Theodore P. Seto, The Unintended Tax Advantages of Gay Marriage, 65 Wash. & Lee L. Rev. 1529, 1530–92  (2008)

[3] Id.

[4] Paul Caron, Treasury Department Issues Proposed Regs Implementing Obergefell and Windsor On Same-Sex Marriage, Oct. 22, 2015,

[5] Ronald J. Scalise, Jr., Comparative Succession Law: Volume II: intestate Succession 421 n. 128 (Kenneth G. C. Reid et al. eds.,  1st ed. 2015) available at

[6] Id.

[7] Id.

[8] 2015 U.S. Dist. LEXIS 28894 (M.D. Ala. 2015).

[9] SPLC Client Receives Monetary Award After US Supreme Court Rules in Favor of Marriage Equality, August 3, 2015, [hereinafter: “SPLC Client Receives Monetary Award”]

[10] See Litigation in Alabama, Freedom to Marry,

[11] Complaint at 1, Hard v. Bentley, (No. 2:13-CV-922-WKW-SRW) available at

[12] See Lohr v. Zehner, 2014 U.S. DIst. Lexis 75216 (M.D. Ala. 2014).

[13] See SPLC Challenges Alabama’s Unconstitutional Marriage Protection Act and Sanctity of Marriage Amendment, The Southern Poverty Law Center, Feb. 12, 2014,  

[14] See SPLC Client Receives Monetary Award (“The [defendants] argued that the Supreme Court’s marriage ruling should not be applied retroactively to the case.”).

[15] Id.

[16] Zack Ford, Same-Sex Couples Are Securing Retroactive Recognition of their Marriage, Think Progress, Jul. 30, 2014,

[17] Id.

[18] See Jennifer McDonald, Common Law Marriage in Alabama,, July 1, 2013,

[19] Legal Services Alabama, Common Law Marriage in Alabama, Alabama Legal Help, (stating that in Alabama “[C]ommon law marriage…can only be ended by a divorce or by the death of [a spouse].”)

[20] Jennifer McDonald (“couples wishing to dissolve a common-law marriage are subject to…equitable division of property and debt.”)


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