Apple v. FBI: Seeking to Protect Privacy, Apple Invites Governmental Action By: Ross Benson

Apple v. FBI: Seeking to Protect Privacy, Apple Invites Governmental Action

By: Ross Benson 

On December 2, 2015, Syed Rizwan Farook and Tashfeen Malik initiated a terror attack on an office party at Farook’s workplace in San Bernardino, California, killing fourteen co-workers and wounding twenty-two others.[1] The two culprits were killed in a shootout with police outside the office building.[2] With the perpetrators dead, investigators had to determine a motive and find any other co-conspirators based on physical evidence that could be accumulated on Farook’s person and his residence. For investigators, Farook’s iPhone[3] would be the key piece in this case; the phone would show who had been in contact with Farook, where Farook obtained the weapons and supplies for the attack, and other valuable leads in the case.[4]

The FBI, headed by Director James Comey, sough first to work with Apple and have Apple voluntarily “open” Farook’s iPhone by creating a new operating system (“GovtOS”) that would allow certain features—including the security code—to be disabled.[5] Citing privacy concerns, Apple refused to crack Farook’s iPhone for the FBI.[6] Comey then applied for a search warrant, invoking the obscure All Writs Act of 1789.[7] Armed with the Writ, the FBI obtained an order from a magistrate judge compelling Apple to assist the investigation.[8] Apple again opposed the order.[9]

In a letter to customers, Apple CEO Tim Cook described the FBI’s fight against Apple as “unprecedented” and “threatening to the security of customers.”[10] Cook addressed San Bernardino directly, saying that Apple is “shocked” and “outraged” by the violence committed and has no sympathy for terrorists whatsoever.[11] In following the court order, Apple was happy to turn over any data that the company had it its possession in order to help the investigation.[12] However, Apple has described the FBI’s request as one which would require the company to write an entire operating system which could put all of its customers at jeopardy.[13]

In building a backdoor to get into Farook’s iPhone, Apple would be creating a digital key that could be used over and over on any Apple device.[14] Cook describes the backdoor as a “master key” that would be capable of opening hundreds of millions of locks including bank accounts, businesses, and homes.[15] In today’s world, an iPhone at its core is a handheld computer that happens to make phone calls; it is no longer a phone that also has other applications and programs.[16] Apple viewed the FBI’s request as a zero-sum-game where the loss of one user’s privacy necessarily impacts all users.[17] The order to “hack” Apple’s own users would undermine decades of security advancements that have been created to protect users from hackers and cybercrime.[18] Additionally, modern technology has advanced to a level where low level hackers could attack a device’s passcode electronically by using “brute force.”[19]

As Apple refused to comply with orders and made their case in the court of public opinion, FBI agents began to use the brute force tactics that Tim Cook was concerned with. Instead of an unsophisticated hacker attempting for force their way past the phone’s security system, one of the most powerful agencies in the world put all its might behind breaking in. After the long legal battle, the FBI suddenly withdrew their order, stating that due to third party help, the FBI could break into the phone without compromising any of the phone’s data.[20]

To unlock Farook’s iPhone, the FBI hired professional hackers to study the iPhone’s base code to find a way into the phone.[21] Finally, the hackers discovered a flaw in the software that would allow the FBI to access the data uncorrupted.[22] For the ability to crack the phone, FBI agents paid these professional hackers at least $1.3 million.[23]

It is unclear how the FBI will choose to proceed in similar cases going forward. While the FBI has the law on their side, the tech community clearly has a set of concerns that run counter to the FBI’s goals of obtaining all information.[24] The FBI has a job to do: keep Americans safe. Conversely, companies such as Apple must ensure that its customer’s privacy is protected and any devices sold are secure. Opening loopholes for the government would not only create issues with intrusive searches, but also provide the opportunity for these professional hackers to find their way in to a user’s phone and steal, sell, or destroy personal information.[25]

Either way, the FBI has shown that it will do what it takes to get into a phone or other personal device. By fighting the order to help the FBI so publicly, Apple gave the FBI the incentive to figure out how to break in themselves. In trying to send a message to consumers that privacy is a paramount concern to the company, many Americans view Apple as having used a tragic high-profile attack to advance their brand.[26] Prior to this case, Apple had complied with at least seventy warrants since 2008.[27] The fact that Apple chose to make a stand in this instance has raised questions about the company’s motive for many individuals.[28]

Next time, government agencies may not partake in a drawn-out public battle with a technology company. Instead, if the company doesn’t comply with demands or court orders, agents may simply kick in the virtual door. There is good reason to doubt the intentions of a company like Apple, however opening backdoors for the government—or other nation’s governments who are free from constraints—would create a dangerous precedent and loopholes ready to be exploited. Apple is stuck between two difficult choices: create the requested backdoor, or invite agencies to break in themselves. Apple chose the latter path, and future outcomes will not be known until Apple’s help is requested again.

[1] Everything we know about the San Bernardino terror investigation so far, Los Angeles Times (Dec. 14, 2015) http://www.latimes.com/local/california/la-me-san-bernardino-shooting-terror-investigation-htmlstory.html.

[2] Id.

[3] Amy Davidson, The Dangerous All Writs Act Precedent in the Apple Encryption Case, The New Yorker (Feb. 19,. 2016) http://www.newyorker.com/news/amy-davidson/a-dangerous-all-writ-precedent-in-the-apple-case. Interestingly, Farook’s phone was actually property of the San Bernardino Health Department—Farook’s employer—and the department had consented to a search of the phone. No Fourth Amendment issues are present in this case.

[4] Sean Hollister & Connie Guglielmo, How an IPhone became the FBI’s public enemy No. 1 (FAQ), CNET (Feb. 25, 2016) https://www.cnet.com/news/apple-versus-the-fbi-why-the-lowest-priced-iphone-has-the-us-in-a-tizzy-faq/

[5] Matt Burgess, GovtOS: Why Apple won’t unlock iPhones for the FBI, http://www.wired.co.uk/article/why-apple-refuse-help-fbi-iphone.

[6] Davidson, supra note 3.

[7] 28 U.S.C. § 1651 (authorizing United States Federal Courts to grant, “all writs necessary in the aid of their respective jurisdictions”).

[8] Elizabeth Weise, Apple v. FBI Timeline: 43 Days that Rocked Tech, USA Today (Mar. 15, 2016) http://www.usatoday.com/story/tech/news/2016/03/15/apple-v-fbi-timeline/81827400/.

[9] Id.

[10] Tim Cook, A Message to Our Customers, Apple (Feb. 16, 2016) http://www.apple.com/customer-letter/.

[11] Id.

[12] Id.

[13] Id. Tim Cook notes that there is currently no program in existence that would allow an entity or hacker to install a program that would circumvent a device’s security features. “In the wrong hands…this software would have the potential to unlock any IPhone.”

[14] Id.

[15] Id.

[16] Mikey Campbell, Man pleads guilty in celebrity iCloud hacking case, admits to phishing scheme, Apple Insider (Mar. 15, 2016) http://appleinsider.com/articles/16/03/15/man-pleads-guilty-in-celebrity-icloud-hacking-case-admits-phishing-scheme. Especially with the prevalence of the iCloud, the entry into one device could get a hacker into a person’s entire network. Celebrities have been common targets, with personalities like Jennifer Lawrence and Kate Upton having their private pictures posted on the internet as a result of a hack into one Apple device. See, Caroline Moss, Nude Photos of Jennifer Lawrence, Kate Upton, and Ariana Grande Leak in Massive Hack, Business Insider, (Aug. 31, 2014) http://www.businessinsider.com/4chan-nude-photo-leak-2014-8.

[17] Supra, note 10.

[18] Id.

[19] Id. Brute force a term used to describe the systematic attack on a security password. Modern computers are capable of bombarding another device with unlimited passcodes until eventually the right combination is entered. Apple has designed their phones to lock up after several failed attempts, preventing brute force tactics from working. Apple is concerned that the backdoor override the FBI wants to implement would allow individual hackers to simply force their way into the phone by creating programs to systematically input passcodes. See, Paul Gil, What is ‘Brute Force’ Dictionary Hacking, LifeWire (Sept. 16, 2016) https://www.lifewire.com/brute-force-dictionary-hacking-4061418.

[20] Supra, note 8.

[21] Ellen Nakashima, FBI paid professional hackers one-time fee to crack San Bernardino iPhone, The Washington Post (April 12, 2016) https://www.washingtonpost.com/world/national-security/fbi-paid-professional-hackers-one-time-fee-to-crack-san-bernardino-iphone/2016/04/12/5397814a-00de-11e6-9d36-33d198ea26c5_story.html.

[22] Id.

[23] Julia Edwards, FBI paid more than $1.3 million to break into San Bernardino iPhone, Reuters (April 22, 2016) http://www.reuters.com/article/us-apple-encryption-fbi-idUSKCN0XI2IB

[24] Marco della Cava & Jessica Guynn, Tech giants to file joint pro-Apple amicus briefs, USA Today (Feb. 25, 2016) http://www.usatoday.com/story/tech/news/2016/02/25/microsoft-file-amicus-brief-supporting-apple/80935714/.

[25] Supra, note 10.

[26] Brain Mastroionni, Feds: Apple has unlocked iPhones “many times” before, CBS News (Feb. 18, 2016) http://www.cbsnews.com/news/feds-apple-has-unlocked-iphones-before/.

[27] Kim Zetter, Apple’s FBI battle is complicated. Here’s what’s really going on, Wired (Feb. 18, 2016) https://www.wired.com/2016/02/apples-fbi-battle-is-complicated-heres-whats-really-going-on/.

[28] Id.

Nowhere to Rest: The Criminalization of the Homeless for Sleeping in their Cars By: Meg Deitz

Nowhere to Rest: The Criminalization of the Homeless for Sleeping in their Cars 

By: Meg Deitz 

Cramped quarters and piled belongings are the interior decorations for this “dwelling.” The shelter is a battered, black Toyota Camry but for the gentleman sleeping soundly in the reclined driver’s seat, this is his only home. Unfortunately, depending on which city this man parked in, his simple act of taking rest could end with a warning, citation, fine, imprisonment, or even impoundment of the one asset he has left, his car. However, a municipality’s punishment of the homeless for taking vehicular shelter could subject them to lawsuits for unconstitutional ordinances and heavy payments of damages.

Across the United States, over one hundred and eighty-seven cities have passed ordinances criminalizing unavoidable daily actions by the homeless such as sleeping in public.[1] Thirty-nine percent of those cities specifically prohibited individuals from living or sleeping in their vehicle within city boundaries creating a one hundred and forty-three percent increase in the punishment of this action since 2006.[2] For many homeless individuals, sleeping in a vehicle is the only option available other than sleeping on the sidewalk.[3] Yet, city officials and businesses reject compassion in favor of pushing agendas of health and safety that end up leaving many homeless unsheltered and cost the city more money.[4]

The federal government considers someone homeless if they lack a “regular[] and adequate nighttime residence” and whose normal nighttime shelter is either a public or private emergency shelter or “a public or private place not designed for…regular sleeping accommodation[s] for human beings.”[5] As of 2016, 17.7% of the U.S. population met the federal definition of homelessness.[6] On a single night in 2016, thirty-two percent of homeless individuals spent the night in an unsheltered location possibly on a park bench, sidewalk, or alley.[7] The causes of homelessness are diverse but the most common reasons include mental illness, a lack of affordable housing, and landlord discrimination.[8] During 2015, the average wage needed to afford a one bedroom apartment was $16.35, over double the current minimum wage of $7.25.[9] Even for those able to find housing, a criminal history prevents many individuals from being able to obtain housing as private landlords refuse to rent to them and federal housing guidelines deny applications for individuals with a criminal conviction. [10]

Without housing, the homeless must turn to whatever resources they still have which may consist of only their car and a few belongings. A fine or conviction for living in one’s car entitles the city to impound a vehicle leaving a homeless individual with no shelter, no resource to travel, and no money to get their vehicle back.[11] Additionally, the conviction can have a lasting effect. An arrest record or unpaid tickets can hinder obtaining a job through private employers or searching for a job if a driver’s license is suspended for unpaid citations.[12] Thus, a homeless person may find herself punished for the involuntary activity of simply trying to survive by sleeping in her automobile to protect herself and her property from the elements.

However, according to the federal government, punishing involuntary acts increasingly qualifies as a cruel and unusual punishment under the Eighth Amendment.[13] The Department of Justice makes it clear that if stay at an emergency shelter is impossible, due to no vacancy or restrictions, than sleeping in public is a necessity for the homeless, a “universal and unavoidable” activity of human survival.[14] Thus, criminalizing universal and unavoidable conduct is a violation of the Eighth Amendment.[15] However, criminalization of involuntary acts is only barred when shelter is unavailable requiring plaintiffs to prove that on the night in question they had no choice but to camp or sleep in public.[16] But, an availability of shelter does not imply voluntary homelessness.

In 2015, many shelters across the country ended up turning away an average of twenty-five percent of individuals seeking shelter due to a lack of beds.[17] Even for shelters with adequate beds, inadequate facilities and restrictions on gender leave many homeless unsheltered as families are turned away from all women or all men facilities.[18] Even if a shelter has vacancy, the individual may lack the knowledge or time and resources to check every single shelter before the gas in his tank runs out. Considering an individual’s homelessness as voluntary when they lack resources to find an available bed or are dismissed for failing to meet shelter requirements is too narrow a holding and further litigation is necessary to obtain a broader definition of what can be considered “voluntary” for homeless individuals.

Alternatively, a code provision criminalizing sleeping or living in a vehicle can be challenged for unconstitutional vagueness creating a violation of due process by the city’s criminalization of common conduct.[19] Circuits split over the years on their views of sleeping in a vehicle with some courts finding the state presented a legitimate interest in prohibiting living in a vehicle for sanitation reasons[20] and others holding there was an abuse of constitutional rights because the codes punished behavior that did not threaten others.[21] Sleeping in a vehicle statutes may be voided on grounds of vagueness, situations where the statute would punish everyone from the sleeping child in the backseat to the eating driver to the homeless.[22] A lack of clarity on what the prohibited conduct consists of leaves the public unsure of what actions are illegal.[23] Additionally, vagueness typically leads to arbitrary enforcement because interpretation of the statute largely lies in the hands of police to decide who goes to jail for the offense.[24] Unguided, unconstitutional enforcement recently appeared in Los Angeles, California where the statute covered a broad range of conduct but was only enforced against the homeless requiring the city to pay over a million dollars to the plaintiff’s counsel for legal fees.[25] While neither sleeping in public or in one’s car is constitutionally protected activity of itself,[26] the criminalization of such activity tends to criminalize common acts required to survive, sleeping and having shelter, that hurt no one and leave police choosing who to punish.

For cities concerned about sanitation, a decrease in tourism, or safety, alternate solutions remain available that are more cost effective and compassionate to the homeless than citations and arrest. Cities are beginning to set aside designated parking areas with sanitation facilities for the homeless to have a place to rest.[27] Additionally, police training requiring officers to maintain up to date information on available community resources including shelters, designated parking lots, or non-profit homeless ministries enables the city to aid the homeless, free up officers to handle real crimes, and begin to alleviate the homeless population by deferring them from the court system.[28]

The criminalization of sleeping in a vehicle only serves to “create a costly revolving door that circulates individuals experiencing homelessness from the street to the criminal justice system and back.”[29] Laws criminalizing homelessness send a clear message to homeless individuals that “We don’t want you here!” Specifically, codes prohibiting sleeping in a vehicle shows that cities do not care if the only other option for the homeless is living on the streets once their vehicle is impounded or they are unable to find employment or housing due to an arrest record. An act on the part of private citizens to show city leaders that shelter for a fellow human being is more important than city appearance is the first step towards getting the homeless off the streets and back into society with the aid and shelter they deserve.

 

[1] Tristia Bauman et al., Nat. L. Ctr. on Homelessness & Poverty, Housing Not Handcuffs: Ending the Criminalization of Homelessness in U.S. Cities 9-10 (2016), https://www.nlchp.org/documents/Housing-Not-Handcuffs.

[2] Id.

 [3] Bauman, et al., supra note 1, at 25.

[4] See Hershey v. Clearwater, 834 F.2d 937, 940 (11th Cir. 1987) (citing the city’s reasons for implementing a ban against sleeping or lodging in an automobile); Bauman, et al., at 4.

[5] Stewart B. McKinney Homeless Assistance Act of 1987, 42 U.S.C. § 11302(a) (2000).

[6] Nat. All. to End Homelessness, The State of Homelessness in America 2016 12-13 (2016), http://www.endhomelessness.org/page/-/files/2016%20State%20Of%20Homelessness.pdf.

[7] Meghan Henry, et al., U.S. Dep’t of Hous. and Urban Dev., Office of Cmty. Planning and Dev., The 2016 Annual Homeless Assessment Report (AHAR) to Congress 1, (2016), https://www.hudexchange.info/resources/documents/2016-AHAR-Part-1.pdf.

[8] See Bauman et al., supra note 1, at 9; Tanene Allison, Voice: Confronting the Myth of Choice: Homelessness and Jones v. City of Los Angeles, 42 Harv. C.R.C.L. L. Rev. 253, 257 (2007); Zoe Loftus-Farren, COMMENT: Tent Cities: An Interim Solution to Homelessness and Affordable Housing Shortages in the United States, 99 Cal. L. Rev. 1037, 1044 (2011).

[9] Bauman et al, supra note 1, at 47.

[10] Id. at 19, 36.

[11] Id. at 25.

[12] Id. at 36.

[13] Statement of Interest of the United States at 9, Bell v. City of Boise, 709 F.3d 890 (2013) (No. 09-540), https://www.justice.gov/opa/file/643766/download (citing two previous amicus briefs submitted by the United States arguing that in the absence of shelter criminalizing camping in public violates the Cruel and Unusual Punishment Clause).

[14] Id. at 4, 12.

[15] Id. at 13.

[16] Jones v. City of Los Angeles, 444 F.3d 1118, 1137 (9th Cir. 2005) (vacated after settlement, 505 F.3d 1006 (9th Cir. 2007)); See also Bell v. City of Boise, 709 F.3d 890 (9th Cir. 2013); Harrison Berry, Homeless Camping Ordinance Lawsuit, Boise Weekly (Sept. 29, 2015), http://www.boiseweekly.com/boise/federal-judge-dismisses-boise-homeless-camping-ordinance-lawsuit/Content?oid=3608241 (discussing the dismissal of Bell which was dismissed on remand from the Ninth Circuit because the plaintiffs could not show they were unable to secure shelter on the night they received citations for camping and sleeping in public).

[17] U.S. Conf. of Mayors 2015, The U.S. Conference of Mayors 2015 Status Report on Hunger and Homelessness 2 (2015) https://www.usmayors.org/pressreleases/uploads/2015/1221-report-hhreport.pdf.

[18] Statement of Interest of the United States at 4, supra note 13; Bauman et al., supra note 1, at 28.

[19] Pompano Beach v. Capablo, 455 So.2d 468, 469 (4th Cir. 1984).

[20] Hershey, 834 F.2d at 940.

[21] Capablo, 455 So.2d at 470-71; Desertrain v. City of Los Angeles, 754 F.3d 1147, 1156 (9th Cir. 2014).

[22] Capablo, 455 So.2d at 470-71; Desertrain, 754 F.3d at 1156.

[23] Desertrain, 754 F.3d at 1157.

[24] Id. at 1156.

[25] Desertrain, 754 F.3d at 1157; see also Gale Holland, L.A.’s Voided Law Against Sleeping in Cars Costs it $1.1 Million in Legal Fees, Los Angeles Times, (Aug. 19, 2015), http://www.latimes.com/local/lanow/la-me-ln-la-homeless-legal-fees-20150819-story.html.

[26] Hershey, 834 F.2d at 940 n.5.

[27] Holland, supra note 25; Courtney Tompkins, Long Beach Eyes ‘Safe Parking’ Program for Homeless Living in RVs, Vehicles, Press-Telegraph, (Oct. 9, 2016), http://www.presstelegram.com/social-affairs/20161009/long-beach-eyes-safe-parking-program-for-homeless-living-in-rvs-vehicles.

[28] Stacy Lee Burns, ARTICLE: The Future of Problem-Solving Courts: Inside the Courts and Beyond, 10 R.R.G.C. 73, 84 (2010).

[29] U.S Interagency Council on Homelessness, Searching Out Solutions: Constructive Alternatives to the Criminalization of Homelessness 8 (2012), https://www.usich.gov/resources/uploads/asset_library/RPT_SoS_March2012.pdf.

 

Stormans, Inc. v. Wiesman: Analysis and Implications By: Logan Griffith

 

Stormans, Inc. v. Wiesman: Analysis and Implications

By: Logan Griffith 

In June of 2016, the Supreme Court declined to grant certiorari to review the Ninth Circuit’s ruling in Stormans, Inc. v. Wiesman.[1] The case involved a set of pharmacy regulations in the state of Washington, one of which – the “deliver rule” – requires pharmacies to “deliver lawfully prescribed drugs and devices to patients.”[2] The rule contains some exceptions that excuse a pharmacy from filling such a prescription, such as when the prescription is erroneous, there is a national or state emergency, or the patient cannot pay.[3] Notably, there is no exception for a pharmacy to refuse to fill a prescription due to a religious or moral objection.[4]

Plaintiffs, a pharmacy and two individual pharmacists, successfully challenged the regulation in 2007 on Free Exercise grounds.[5] The Ninth Circuit reversed.[6] For a claim to succeed on Free Exercise grounds, the plaintiff essentially must show that the law is not neutral or that it is not generally applicable.[7] In the view of the Ninth Circuit, the plaintiffs here were unable to show either.[8] The tests for neutrality and general applicability are interrelated.[9] With regards to whether or not the law is neutral, the court looks to the objective or motivation behind the law.[10] Here, the Ninth Circuit found that the objective of the regulations was “[to] establish a practical means to ensure the safe and timely delivery of all lawful and lawfully prescribed medications to the patients who need them.”[11] The court also noted that “the rules prescribe and proscribe the same conduct for all, regardless of motivation.”[12] With regards to the general applicability of the law, the court primarily looked at whether or not the regulations were substantially underinclusive as to “non-religiously motivated conduct that might endanger the same governmental interest that the law is designed to protect.”[13] Here, the court found that the exemptions are “necessary reasons for failing to fill a prescription,” and thus are not underinclusive. [14]

As noted earlier, the plaintiffs then appealed to the Supreme Court. For the Supreme Court to grant a writ of certiorari, at least four members of the Court must vote in favor of granting.[15] Only three did – Justices Alito, Thomas, and Roberts – with Justice Alito authoring a dissenting opinion.[16] Justice Alito finds numerous problems with the nature of the Ninth Circuit’s opinion, but his bigger problem is arguably with the attitude of his fellow justices in refusing to hear the case.  Alito expresses concerns that Christian pharmacists will be made unemployable if they object to selling “abortifacients.”[17] This is due to the fact that the regulation would allow an individual pharmacist to refuse to fill a prescription she has a moral objection to, but would force the pharmacy to account for that and provide for a pharmacist that would fill such a prescription.[18] Alito cites the findings of the District Court as to the neutrality (or lack thereof) of the regulation, saying that “regulations were adopted with the ‘predominant purpose’ to ‘stamp out the right to refuse’ to dispense emergency contraceptives for religious reasons.”[19] The opinion also finds the “inability to pay” exemption particularly problematic.[20] Alito’s problem with this exemption is that it extends beyond “denying service to customers who won’t pay” and allows pharmacies to refuse to fill prescriptions for patients because the pharmacy does not accept the patient’s insurance.[21] Alito’s treatment of this exemption ignores the complex nature of the interactions between pharmacies and insurance providers, but that is beyond the scope of this writing.[22] In the end, Alito goes so far as to say “[t]he bottom line is clear: Washington would rather have no pharmacy than one that doesn’t toe the line on abortifacient emergency contraceptives.”[23]

Reactions to the Ninth Circuit’s decision and the Supreme Court’s refusal to grant certiorari have varied wildly. Some have viewed the decisions as an indication that “anti-Christian bigots” now have the force of law behind them, at least in the Ninth Circuit.[24] Commentators on the other side of the spectrum have characterized the reactions of right-wing commentators as “melodramatic” and “silly.”[25] Moreover, some have criticized the lawsuit itself as a “poor vehicle for resolving questions about the Free Exercise clause,” as the regulations had been in place for a year by the time the suit was filed, and the plaintiff-pharmacy had not been penalized in any way for their practice of “facilitated referrals.”[26] In the end, the concern that Christians will no longer be able to pursue careers as pharmacists is in all likelihood entirely overblown. More importantly, the people of the state of Washington will likely now have an easier time obtaining Plan-B.

[1] Stormans, Inc. v. Wiesman, 136 S. Ct. 2433.

[2] Id. at 2435.

[3] Id. at 2436.

[4] Id.

[5] Stormans, Inc. v. Wiesman 794 F.3d 1064, at 1073, 1074.

[6] See, Stormans, Inc. v. Wiesman 794 F.3d 1064.

[7] Id., at 1075.

[8] Id., at 1084.

[9] Id., at 1076.

[10] Id.

[11] Id., at 1077.

[12] Id.

[13] Id., at 1079.

[14] Id., at 1080.

[15] Robert Barnes, Supreme Court Won’t Hear Challenge to Rule that Pharmacies Dispense Emergency Contraception, The Washington Post (June 28, 2016), https://www.washingtonpost.com/politics/courts_law/supreme-court-wont-hear-challenge-to-rule-that-pharmacies-dispense-emergency-contraception/2016/06/28/

[16] Stormans, Inc. v. Wiesman, 136 S. Ct. 2433.

[17] Id., at 2433.

[18] Id., at 2434.

[19] Id., at 2434.

[20] Id., at 2439.

[21] Id.

[22] See generally, Lisa L. Causey, Nuts and Bolts of Pharmacy Reimbursement: Why It Should Matter to You, Health Law Perspectives (June 2009), available at http://www.law.uh.edu/healthlaw/perspectives/2009/(LC)%20Pharmacy.pdf.

[23] Id., at 2440.

[24] David French, Thanks to SCOTUS, Vicious Anti-Christian State Action is Legal in the Ninth Circuit, The National Review (June 28, 2016), http://www.nationalreview.com/corner/437269/thanks-scotus-vicious-anti-christian-state-action-legal-ninth-circuit.

[25] Doug Mataconis, SCOTUS Declines to Hear Appeal of Pharmacists with Religious Objection to “Morning After” Pill, Outside the Beltway (June 30, 2016), http://www.outsidethebeltway.com/scotus-declines-to-hear-appeal-of-pharmacists-with-religious-objection-to-morning-after-pill/.

[26] Emma Green, Even Christian Pharmacists Have to Stock Plan-B, The Atlantic (June 29, 2016), https://www.theatlantic.com/politics/archive/2016/06/pharmacists-have-to-sell-emergency-contracptioneven-if-it-violates-their-religious-beliefs/489182/.

Alabama Criminal Justice and the Sex-Trafficking SuperHighway By: Alexis Killough

Alabama Criminal Justice and the Sex-Trafficking SuperHighway

By: Alexis Killough

America is fundamentally disinclined to accept slavery of any type as a violation of basic civil rights. Despite that disinclination, serious human rights violations in the form of human trafficking are prevalent in today’s national society. In spite of superficial appearances or lack of media attention, there is a well-developed and strongly established system of human trafficking in place in and around Alabama.[1] The Well House, a nonprofit organization in Birmingham, Alabama dedicated to sheltering and rehabilitating women who were trafficked or prostituted throughout Alabama and the Southeast, identified Interstate Twenty as The Sex Trafficking Superhighway in their documentary by the same name.[2] This well-traveled road runs right through the heart of Alabama, connecting South Carolina to Texas, passing several well-known active international airports and port cities. They explain that more slaves are sold now in America than in the year before the Civil War, and that “75% of these humans are trafficked as sex slaves.”[3] The average girl trafficked for sex on Interstate Twenty is only sixteen years old, though there have been girls as young as thirteen lured into the business.[4] Frequently, when the police get involved, they arrest the girls who are prostituting, just to get them off of the streets, though generally without tracing down and arresting their pimp or trafficker.[5] According to Polaris Project data compiled from December 7th, 2007 to September 30th, 2016, the Polaris Project’s hotlines received 954 calls from Alabama, from which they found 255 cases of potential human trafficking.[6] Nearly half of the victims from these cases were foreign nationals, not United States citizens.[7] This indicates that individuals are being trafficked into Alabama for sex and labor, not just being removed and traded to elsewhere, so the trafficking through Alabama has national and international implications.

The Alabama code defines Human Trafficking in the First Degree, a Class A Felony, as knowingly subjecting another person to servitude through the use of coercion or deception.[8] Alabama also lays out the crime of Human Trafficking in the Second Degree, a Class B Felony, for anyone who knowingly benefits from engagement in said illegal coerced servitude.[9] A victim’s history of sexual activity or voluntary prostitution, connection to defendant by blood or marriage, consent, or a mistake as to the age of the victim are not defenses to human trafficking under Alabama law.[10] However, victims of human trafficking who are charged with offenses relating to their status as trafficked individuals may use that fact as a defense against any charges arising out of their trafficked status, such as prostitution.[11] Finally, the Alabama human trafficking criminal laws demand that the defendant, upon conviction, will have to pay restitution to the victim, including medical and psychological treatment costs, transportation costs, value of the labor given by the victim, and any other expenses or losses incurred by the victim as a result of the defendant’s wrongdoing, regardless of whether the victim remains in America for recovery or returns to their home country or another country for shelter.[12] For any additional monetary damages, victims are permitted to bring a civil suit against their trafficker for compensatory or punitive damages, among other relief measures.[13]

In addition to those basic provisions, Alabama laws provide additional protections to juveniles who are or may be victims of human trafficking. A child under the age of 18 who is a victim of human trafficking cannot be adjudicated delinquent or transferred to adult court and criminally convicted for prostitution and juvenile intake officers are ordered to look into the social history of each child reported for prostitution to determine if they might be a victim of human trafficking.[14] Instead of punishing those juvenile victims for their illegal acts, Alabama juvenile courts will declare them to be a child in need of supervision, allowing them to come under the protection of the juvenile system and receive all of the requisite social services without punishing them for a situation that was beyond their control.[15] This further protects the juvenile from the stigma of delinquency status in addition to the stigma of being a trafficking victim and allows them to recover from their situation and return to a normal life.

In compliance with and assistance to the enforcement of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, the United States Department of State produces and publishes annual reports on international human trafficking evaluating the overall status of human trafficking, as well as investigating each country’s compliance with the Protocol.[16] It compiles information from embassies, governmental and non-governmental organization, reports and news articles, research trips, and academic studies.[17] With that information, the Department places countries into a tiered ranking system: Tier 1 indicates that the country’s government has acknowledged the problem and made efforts to address it while meeting the Trafficking Victim Protection Act’s minimum standards in that regard; Tier 2 indicates that the country’s government is not fully in compliance with the Trafficking Victim Protection Act’s standards, but are working towards compliance; Tier 2 Watch List includes countries who fit into Tier 2 but have a significant and/or increasing number of trafficking victims; Tier 3 countries are not in compliance nor are they making significant strides towards compliance.[18]

Alabama, evaluated as an independent country, rather than a state, would likely be ranked by the United States Department of State as a Tier 2 country in a Trafficking in Persons Report. From the surface, Alabama seems like it would easily be a Tier 1 country; the laws in place offer thorough protection to victims and leave plenty of room to properly prosecute and punish perpetrators.[19] This is unsurprising, given that Alabama is of course part of the United States, itself a Tier 1 country.[20] However, the enforcement of those laws seems to be the downfall of the state. As explained above and in The Well House’s documentary on human trafficking in Alabama, police in Alabama often arrest human trafficking victims for prostitution.[21] This seems to put Alabama, viewed independently, more in line with Albania, a Tier 2 country.[22] Both Albania and Alabama have good laws in place but have some problems when it comes to strictly following that legislation.[23]

Quite frankly, it is shameful that Alabama would only receive a Tier 2 ranking. As part of the United States of America, it is expected that Alabama would be a shining example of how to handle human rights issues surrounding human trafficking, just as the United States is regarded as being. Fortunately, however, the existing problems are relatively minor. Unlike the Tier 3 countries, Alabama at least has the appropriate legislation and infrastructure in place to protect the rights of human trafficking victim’s the way it should. All it will take is an adjustment in a few enforcement mechanisms and maybe a shift in the general mindset of some law enforcement. Instead of arresting every person suspected of being a prostitute, police should engage in a dialogue with that individual, gaining a social history on the person, before deciding the appropriate course of action. While the fact that juvenile courts and criminal courts will protect trafficked individuals once charges are brought and their status as trafficking victims is revealed, the arrest itself is stigmatizing and traumatizing. Instead, it would be ideal if those victims were treated as such from the moment they first encounter law enforcement. Then, law enforcement can take on the protective reputation they should ideally embody and the victims will feel safe, something Alabama can be proud of. Alabama is rarely, if ever, on the cutting edge, but protecting the human rights of trafficking victims in compliance with international standards would offer the state a chance to stand out for something positive.

[1] Till Spencer, The I-20 Story: The Sex Trafficking Superhighway, The WellHouse, http://the-wellhouse.org/the-i-20-story.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Alabama, National Human Trafficking Resource Center, https://traffickingresourcecenter.org/state/Alabama.

[7] Id.

[8] Ala. Code § 13A-6-152.

[9] Ala. Code § 13A-6-153.

[10] Ala. Code § 13A-6-154.

[11] Ala. Code § 13A-6-159.

[12] Ala. Code § 13A-6-155.

[13] Ala. Code § 13A-6-157.

[14] Ala. Code § 12-15-701.

[15] Id.

[16] See, U.S. Dep’t of State, Trafficking Persons Report 2016.

[17] U.S. Dep’t of State, Trafficking Persons Report 2016, at 36 (2016).

[18] U.S. Dep’t of State, Trafficking Persons Report 2016, at 36-39 (2016).

[19] See, Ala. Code § 13A-6-(150-160).

[20] U.S. Dep’t of State, Trafficking Persons Report 2016, at 387 (2016).

[21] Spencer, supra note 8.

[22] U.S. Dep’t of State, Trafficking Persons Report 2016, at 68 (2016).

[23] U.S. Dep’t of State, Trafficking Persons Report 2016, at 68 (2016).

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.

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