Showing papers in "Albany law review in 2013"

A legal review of autism, a syndrome rapidly gaining wide attention within our society.

Abstract: I INTRODUCTION The word autism is derived from the Greek word "autos" which means "self" and describes conditions in which a person is removed from social interaction, that is, an isolated self (1) Unlike many other brain disorders, Autism Spectrum Disorder ("ASD") "does not appear to be a clear unifying mechanism at either the molecular, cellular or systems level" (2) "Because autism is characterized by groups of symptoms and signs even in its narrowest conception, it is a highly variable neurodevelopmental syndrome and not a unitary condition" (3) Thus, the saying goes that if you have met one person with an ASD, you have only met one person with an ASD In this article we shall discuss ASD diagnosis and treatment, developments in State autism insurance programs, and a variety of litigation issues arising from the education of ASD students including the provision of a free and appropriate education, unlawful transfer policies, denial of tuition reimbursements, limitations of Applied Behavioral Analysis ("ABA") therapy, confinement in the "Autism Intervention Room," and bullies in the classroom (4) In addition, we will examine tort litigation involving vaccine design defects, premature deliveries and low birth weight as a possible cause of autism, and failing to warn of the violent behavior of ASD students (5) We shall also discuss guardianship and the least restrictive means doctrine, maintaining control and the need for periodic review (6) We shall also discuss family law issues including the relocation of the parent with sole custody and what is in the best interests of the ASD child including the availability of services and extended placement (7) We shall also discuss criminal law issues involving the perceived anti-social behavior of persons with ASD and how to establish intent and guilt (8) Finally, we shall discuss violence in the home directed towards ASD children (9) Public Awareness In 2007, the United Nations General Assembly passed a resolution declaring April 2 "World Autism Awareness Day" (10) In 2011, President Obama followed suit, declaring that each April 2 would be World Autism Awareness day in the United States and stressing that "autism is an urgent public health issue with a profound impact on millions of Americans" (11) Thereafter, numerous state governors and local officials proclaimed April as Autism Awareness Month, publicly recognizing the individual and unique needs of those with developmental disabilities (12) In 2013, President Obama commemorated World Autism Awareness Day by announcing the launch of a $100 million Brain Research through Advancing Innovative Neurotechnologies ("BRAIN") Initiative "designed to revolutionize our understanding of the human brain" and "to help researchers find new ways to treat, cure, and [potentially] prevent brain disorders, such as[, inter alia, autism]" (13) Societal Costs ASDs impose enormous financial and personal burdens not only on the families of an ASD individual, but also on society as a whole (14) The financial costs to families and service agencies for providing the appropriate multi-faceted treatments, interventions, and services are significant, and because of the pervasive nature of the disorder, these costs are often required in some form during the ASD individual's lifetime (15) Yet, the costs to society for not providing treatment are even greater An ASD is a lifelong condition: "Assuming prevalence stays flat in the future, the population of adults with autism is expected to rise 625 percent by the year 2030 (compared to 2010)" (16) According to the United States Department of Labor, the labor force participation rate for individuals with disabilities is only 205 percent (17) The impact of ASD will be increasingly realized by society as ASD individuals mature out of infancy, as "[t]he substantial costs resulting from adult care and lost productivity of both individuals with autism and their parents have important implications for those aging members of the baby boom generation approaching retirement …

Online prostitution and trafficking

Abstract: B. Message Boards There is seamless communication between pimps and sex buyers, ensuring delivery of women to the men who want to buy them. Increasing numbers of online sex buyer communities support predatory behaviors and exchange information regarding where and how women can be bought. (181) The Internet facilitates communication between sellers (pimps and traffickers) and sex buyers (johns), enabling pimps and traffickers to respond rapidly to men's demand for purchased sex. By enabling men to evade arrest for soliciting prostitution since they can remain hidden, indoors, and anonymous, the Internet is sex buyer-friendly. (182) Its anonymity has created a private environment in which it is possible to engage in prostitution with a lower risk of arrest, fewer legal penalties, and less public exposure. With private messaging, warnings about police undercover agents and stings can be broadcast to brother johns. (183) Atlanta sex buyers for example discussed their awareness of law enforcement's infiltration of online conversations in their forum: GreekFan: We have always known LE looks at this Board and others. But as indicated, talk is not illegal. Only trusted mongers and PM [private messaging] gets the job done. Watch your back people, always. There is no substitute for that. Blazer: for all you newbies, elly (184) monitors and POSTS to this board so watch yo' six. They usually ask dumbass questions that make it obvious that they are elly in the first place, like, can you tell me where to go to monger in Cobb, I mean names and numbers please, or **** like that. The danger is ever present, however, and we must stay aware. (185) Sex trafficking industry businesses such as Room Service provide background checks that help sex buyers avoid arrest for prostitution. (186) A customer can pay a fee to have a background check run. (187) Then when the sex buyer contacts a prostituting woman, he can provide access to his background check that is now anonymous. This arrangement allows women in prostitution to screen out undercover police officers while enabling sex buyers to avoid blackmail that might be possible if a woman had his personal information. (188) Two cases illustrate sex buyers' use of the Internet to locate women and evade arrest. Southwest Companions, a members-only website and chatboard, had 1400 members including many professors and a former University of New Mexico president who served as leader of the site's "Hunt Club." (189) His job, in effect online pimping, was to recruit women in prostitution to travel to the Albuquerque/Santa Fe area. (190) According to reports, the website featured the ability to share information with other johns about police stings, to provide "physical descriptions and cell phone numbers of undercover police to help members avoid arrest." (191) The Southwest Companions website provided training videos on what to do if arrested for prostitution and posted sex buyers' evaluations of women's prostitution performances, including prices and rankings of the women. (192) Several of the arrested men were charged with promoting prostitution, conspiracy, and tampering with evidence. (193) Charges against the men running the Southwest Companions online prostitution ring were dismissed by a judge who ruled that the website was not physically a brothel, (194) illustrating the challenge of applying laws that were written before the Internet was invented. '"Sometimes states' laws are too specific and were written years ago, long before the Internet,' said Scott Cunningham, a Baylor University economics professor who has written about technology and prostitution. 'That's why we are seeing some successful challenges to laws when websites are involved.'" (195) The Minnesota Nice Guys, a self-named sex buyer group, was organized by a pimp who was a former assistant county attorney. (196) The pimp received high ratings on Theeroticreview (TER), a sex buyers' message board, for providing attractive and compliant women to sex buyers, often trafficking undocumented immigrants. …

Convicts in Court: Felonious Lawyers Make a Case for Including Convicted Felons in the Jury Pool

Abstract: I. INTRODUCTION Currently, in twenty-nine states and the federal court system, a convicted felon can practice law, but cannot serve on a jury. (1) In these jurisdictions, bar examiners conduct individualized evaluations of all aspiring attorneys, providing bar applicants with a felonious criminal history the opportunity to gain entry into the legal profession. (2) Yet, such jurisdictions also employ categorical, record-based juror eligibility statutes, which permanently prohibit convicted felons from taking part in the adjudicative process. (3) Ignored by courts and scholars, (4) this incongruent framework for assessing the value of prospective legal actors with a criminal past seemingly undermines the proffered rationales for excluding convicted felons from jury service, and civic life generally; thereby delegitimizing the law and potentially threatening reintegration initiatives. Lawyers and jurors are equally vital to democratic systems of government. As Alexis De Tocqueville noted, "the prestige accorded to lawyers and their permitted influence in the government are ... the strongest barriers against the faults of democracy," (5) while "[t]he jury is both the most effective way of establishing the people's rule and the most efficient way of teaching them how to rule." (6) Accordingly, to protect the system of justice, (7) all jurisdictions screen potential lawyers and jurors, (8) banishing those who may jeopardize the functionality and integrity of indispensible legal institutions. But the procedures used by a majority of jurisdictions to evaluate a convicted felon's suitability for these two legal roles differ wildly, suggesting that gatekeepers maintain keenly divergent views of convicted felons. Specifically, legislators and courts justify the preclusion of convicted felons from jury service by alleging that all those marked with a felony conviction uniformly "lack probity" (9) and are "inherently biased." (10) In this way, felon jury exclusion statutes rest solely on the presumption that a felony conviction renders one irreparably flawed, (11) to the extent that lawmakers must "define and protect juries" (12) by categorically locking all convicted felons out of the deliberation room. (13) Yet, a majority of jurisdictions, while permanently banning convicted felons from jury service, do not per se disqualify all bar applicants with a felonious criminal history. (14) Instead, such jurisdictions opt to individually evaluate, and in some cases license, convicted felons who hope to practice law; (15) ostensibly ignoring the supposed permanence of character flaws and biases. (16) Thus, adhering to an inconsistent evaluative framework, a majority of jurisdictions call into question the validity of the professed rationales for record-based juror eligibility statutes. While per se excluding convicted felons from all meaningful legal roles is a tempting method by which to rectify such inconsistency, social science research demonstrates that the opposite approach is far more prudent. For example, law professor Tom Tyler's empirical work proposes that voluntary compliance surpasses deterrence as a means of social control, and that citizens are more likely to voluntarily comply with the law if they view the law as legitimate. (17) Additionally, because citizens contemplate the fairness of their experiences with the justice system when assessing the legitimacy of legal procedures, (18) authorities can influence one's sense of procedural justice by regulating conduct through thoughtful methods. (19) Tyler contends that just procedures involve measures of representation, consistency, impartiality, accuracy, correctability, and ethicality. (20) Moreover, just procedures foster fairness, legitimacy, and ultimately voluntary compliance with the law. (21) Yet, "[w]hen authorities are viewed as procedurally unjust, their legitimacy is undermined, leading to support for disobedience and resistance. …

The Flipside Injustice of Wrongful Convictions: When the Guilty Go Free

Abstract: I. INTRODUCTION As the rosters of identified wrongful convictions continue to swell, (1) attention naturally focuses on the fractured lives of the innocent men and women who have endured the pains of unwarranted stigmatization and punishment. Their compound sufferings (2) become all the more apparent as statistics that detail the incidence, causes, and consequences of miscarriages of justice give way to identified individuals and glimpses of their life stories. (3) Post-conviction challenges in cases in which the innocent have been adjudged guilty often trigger the steadfast opposition of prosecutors (4) and are only resolved following years of sustained litigation championed by defense counsel on behalf of the unjustly convicted. (5) These attributes combine to invite conceptualizing "the Innocence Movement" (6) as defendant-oriented and adversarial, pitting law enforcement and prosecution interests against the defense in much the same spirit as the original trial. The modest thesis of this article is that indulging an inflexible mindset of "us-against-them" in the context of miscarriages of justice is not only misguided but also counterproductive. Wrongful convictions entail profound social costs in addition to the hardships borne by the unfortunate individuals who are erroneously adjudged guilty. When innocents are convicted, the guilty go free. (7) Offenders thus remain capable of committing new crimes and exposing untold numbers of additional citizens to continuing risk of victimization. Public confidence in the administration of the criminal law suffers when justice miscarries. (8) At some point, as cases mount and the attendant glare of publicity intensifies, the perceived legitimacy of the justice system and the involved actors is jeopardized. (9) Associated monetary costs, paid from public coffers, represent yet another tangible social consequence of wrongful convictions. (10) Adherents of neither the "Crime Control" nor the "Due Process" models of justice (11) should harbor disagreement about these simple premises. With the exception of the actual offenders, everyone benefits, and no one loses when innocent parties are spared conviction and when the actual perpetrators of crimes are brought to justice. (12) Acknowledging this commonality of interests causes other, ideologically divisive issues to pale in contrast. Every case of wrongful conviction is also a case where the guilty party remains free. (13) Taking this self-evident proposition to heart is a simple yet perhaps necessary step in helping overcome barriers to meaningful policy discussions and enacting long overdue reforms. II. COMPOUNDING THE TRAGEDIES OF WRONGFUL CONVICTIONS: NEW CRIMES COMMITTED AND NEW VICTIMS CLAIMED BY THE TRUE PERPETRATORS When the wrong person is convicted of a crime, the true offender remains at large, free to commit additional offenses. (14) The actual perpetrators of crimes were identified in nearly half (149/307, or 48.5%) of the DNA-exoneration cases reported by the Innocence Project through February 2013. (15) These true offenders are known to have committed at least 123 additional violent crimes, including 32 murders and 68 rapes, following the arrest of the eventual exonerees who were erroneously prosecuted and convicted. (16) Had they been apprehended in a timely fashion, rather than the innocent persons accused in their place, their future victims would have been spared death, injury, and the related pernicious consequences of criminal violence. An exhaustive analysis completed by the Better Government Association and the Center on Wrongful Convictions (17) of eighty-five exonerations in Illinois between 1989 and 2010, documented the crimes committed by actual offenders while innocent parties were instead punished. (18) "[W]hile 85 people were wrongfully incarcerated, the actual perpetrators were on a collective crime spree that included 14 murders, 11 sexual assaults, 10 kidnappings and at least 62 other felonies. …

Ensuring Victim Safety and Abuser Accountability: Reforms and Revisions in New York Courts' Response to Domestic Violence

Abstract: TABLE OF CONTENTS I. INTRODUCTION II. CHANGES TO THE NEW YORK CRIMINAL COURT SYSTEM OVER TIME HAVE IMPROVED OUTCOMES FOR VICTIMS OF DOMESTIC VIOLENCE A. In the past, antiquated views of women and domestic violence impeded the prosecution of abusers B. Logistical and procedural obstacles in criminal court also prevented litigants from accessing justice C. Mandatory arrest policies, a statewide domestic violence registry, and other reforms were implemented to aid law enforcement and prosecutors D. The creation of specialized domestic violence courts brings families with overlapping criminal and family court cases before the same judge E. The success of specialized DV courts and other reforms are documented by encouraging statistical trends from the criminal courts III. INNOVATIVE SOLUTIONS IN THE FAMILY COURTS HAVE INCREASED ACCESS TO JUSTICE FOR DOMESTIC VIOLENCE VICTIMS A. Historically, obstacles in family court prevented victims of domestic violence from obtaining relief B. Legislative changes and the strengthening of civil protective orders have aided in combating domestic violence C. The implementation of Family Justice Centers and expanded access to civil legal services provide increased support to domestic violence victims IV. CONCLUSION I. INTRODUCTION The violent murder of Galina Komar by her abusive ex-boyfriend on February 12, 1996 grabbed the attention of New Yorkers and made domestic violence a front-page issue. (1) Ms. Komar, a Russian immigrant who lived in Brooklyn, endured over a year of abuse at the hands of her boyfriend, Benito Oliver. (2) Throughout the course of their relationship, Mr. Oliver repeatedly punched Ms. Komar, threatened her, and slammed her into walls. (3) On one particular occasion, he hit her on the head with a pipe so hard that it opened a gash that required twenty-two stitches to close. (4) Though Ms. Komar had twice been sent to the hospital by her boyfriend's beatings, the charges against Mr. Oliver were never more serious than misdemeanors, as felony assaults required more serious injuries, such as broken bones. (5) One night, after Mr. Oliver held a knife to her throat, threatened to kill her, and forced her to have sex, Ms. Komar called the police, and Mr. Oliver was arrested on misdemeanor assault charges. (6) While he was held over a forty-one day period, Mr. Oliver's prosecution was the subject of thirteen hearings in front of five different judges, eight different prosecutors, and three different defense lawyers. (7) Though Mr. Oliver was a four-time felon and Ms. Komar had two orders of protection filed against him, the judge modified the bail terms and allowed for Mr. Oliver's release. (8) Three weeks after his release, Mr. Oliver went to the car dealership where Ms. Komar worked, shot her in the head, and then killed himself. (9) Ms. Komar's violent death raised awareness in New York City and throughout the state regarding the problem of domestic violence. Ms. Komar's murder highlighted the shortcomings within the court system with regard to how domestic violence cases were handled. Judges and court personnel were not adequately trained in domestic violence issues and often harbored negative and sexist preconceived notions about victims. In both criminal and family courts, structural and procedural impediments to safeguarding families from domestic violence were widespread. Since then, New York courts have come a long way in changing the way domestic violence cases are handled. Legislative activity and changes in court administration have been effective in addressing some of the obstacles faced by litigants as they navigate the court system. Educational programs have informed judges and court personnel about the myriad of issues surrounding domestic violence so that courts are better able to address and mitigate problems. …

Seeking Justice, Compromising Truth? Criminal Admissions and the Prisoner's Dilemma

Abstract: I. INTRODUCTION When the body of twenty-eight-year-old Trisha Meili was found in Central Park in the early morning hours of April 20, 1989, a firestorm began. (1) At the time, New York City was rife with social problems: fear of terrorist attacks, the growing AIDS epidemic, homelessness, failing school systems, and increasing levels of crime had captivated residents' attention. (2) So when a successful white female was brutally attacked on the same night that a large group of black and Latino youths were "wilding" (3) in the park, a frenzy of media buzz and public outcry ensued. (4) Although dozens of youths had been involved in the activities in the park that night, (5) five were eventually targeted as the prime suspects in the rape and assault: Raymond Santana and Kevin Richardson were fourteen years old; Yusef Salaam and Antron McCray were fifteen; and Korey Wise was sixteen, legally an adult in the state of New York. (6) The boys were surely frightened and confused, but, being young and innocent, certainly could not fathom the horror that was to come. (7) The five teens were all detained and interrogated over prolonged periods of time, some more than twenty hours. (8) All five youths eventually admitted to taking part in the rape and assault, and, despite the fact that no other meaningful evidence linked them to the crime, were convicted. (9) They all served between five and nearly twelve years. (10) It was not until 2002, when another inmate named Matias Reyes confessed to the crime and DNA testing showed him to be the perpetrator, that the Central Park Five were exonerated. (11) The Central Park Jogger case stands as an infamous stain on the fabric of American criminal justice, displaying the fragility and vulnerability of the system to error. Overtones of race, class, and politics color the case in ways reminiscent of pre-Civil Rights-Era cases, such as that of the Scottsboro Boys in the 1930s. (12) But in terms of the investigatory process, perhaps the most important lesson to be learned from the Central Park Jogger case relates to interrogations and false confessions. The NYPD detectives used a variety of techniques in their attempts to elicit confessions from the suspects, including basic intimidation and the "good cop-bad cop" routine. (13) Detectives also used a take on the classic Prisoner's Dilemma, meaning that each suspect was informed that the others were talking and implicating him in the crime. As Raymond Santana describes it, "[Detective] Hardigan sat down and he said, 'Look, Ray, I know you didn't do anything wrong, but the other guys, right now, they're in other precincts and they're saying that you did it.'" (14) A similar approach was used with Kevin Richardson: "And they're telling me, 'Well, you're not saying nothing, but these guys put your name in it.'" (15) Basically, the detectives were using a version of the Prisoner's Dilemma paradigm by playing the juvenile suspects against one another, a tactic that would prove to be quite effective. But why would seasoned law enforcement officers, so early into a major investigation and without physical evidence, press so diligently to secure confessions from a group of teenagers? Were the false confessions of these five youths knowingly coerced by rogue officers, or was this just a byproduct of a faulty, though well-intentioned, criminal investigation process? We do not assert to provide complete answers to these questions in this article. We do, however, step back and contend that the difficulty in assessing many criminal admissions lies, to some degree, in the fundamental nature of attempting to do so. Specifically, many situations in which an admission of guilt is sought--whether by the police through interrogation or by the prosecutor through plea bargaining--call into question the core purpose of these processes. In seeking to obtain an admission of guilt from a suspect or defendant, is the system seeking both truth and justice? …

"Groundbreaking" or Broken? an Analysis of SEC Cybersecurity Disclosure Guidance, Its Effectiveness, and Implications

Abstract: In October 2011, the Securities and Exchange Commission (SEC) responded to mounting concern about the threat of cyber-attacks on corporate America by issuing staff guidance on when publicly traded companies should disclose information about cybersecurity vulnerabilities and attacks in their annual public filings. This SEC cybersecurity disclosure guidance has escaped serious analysis until now. Using case studies and paying particular attention to the comment letters sent by the SEC to registrants to prompt greater disclosure, this article concludes that the guidance both procedurally overreaches and substantively underachieves. It overreaches because, while it is facially a nonlegislative rule, it has had the practical effect of binding private conduct as if it were a legislative one, violating the Administrative Procedure Act. It underachieves because the disclosures it requires are vague, similar across industries and companies, and bring little information to the marketplace. In particular, it fails to resolve an information asymmetry problem--between corporate managers and stockholders--that the disclosure laws are meant to address. To resolve these defects, the SEC should elevate cybersecurity disclosure guidance and issue it as a legislative rule, after a notice and comment period. Notice and comment rulemaking would contribute to sounder policy by allowing stakeholders to offer their expertise and experience at the front-end of the rulemaking process, improving the rule and its acceptability among the public. This guidance offers a counterexample to those who say that agencies do not commonly use guidance documents to make important policy decisions outside of the notice and comment process. The experience with this guidance also suggests the limits of agency creativity during periods of political ossification, and it challenges the simple verity that economic security and national security have merged. I. INTRODUCTION It has been said that history repeats itself, first as tragedy and then as farce (1)--and sometimes there is a thin line between the two. In May of 2013, a group loyal to the embattled Syrian President Bashar Al-Assad, known as the Syrian Electronic Army, hacked into the Twitter account of the satirical newspaper and website The Onion and sent out a series of inflammatory messages to the publication's five million Twitter followers. (2) The culprits reportedly were angered by what they considered the satirists' bias against the Syrian regime, (3) evidenced by a facetious column the paper published supposedly authored by Al-Assad, in which he boasted of killing 70,000 people. (4) After the attack, The Onion--which had been accustomed to skewering the news instead of being the subject of it--did something serious for a change. (5) It disclosed on its website a detailed account of how its Twitter account was compromised and suggested steps other websites could take to prevent similar attacks. (6) What is remarkable about The Onion pulling back the layers of its cyber-attack is that the satirical newspaper took steps that many more sober organizations--fearful of admitting digital weaknesses that may either invite future attacks or shake investor confidence-are reluctant to take. (7) Such reluctance has persisted, even though the ubiquity of digital systems in modern society is matched only by their vulnerability to disruption. (8) In one survey, ninety percent of organizations reported having suffered at least one cybersecurity breach over a twelvemonth period. (9) Seemingly every day, news breaks of yet another bank heist, espionage operation, or data theft accomplished not with masks and guns, but with clicks of a mouse and taps of a keyboard. (10) The U.S. government has spoken darkly of such cyber risks. (11) In his February 2013 State of the Union address, for instance, President Barack Obama warned of the "the rapidly growing threat [of] cyber-attacks. …

The FDA and the pharmaceutical industry: is regulation contributing to drug shortage?

Abstract: I Introduction Rebecca Robinson was a thirty six-year-old historical interpreter when she was diagnosed with Angiosarcoma, a rare blood-based soft tissue cancer, in February of 2010 (1) Over the next year and a half, after receiving five Doxil (2) chemotherapy treatments at the Dana Farber Cancer Center in Boston, Rebecca's cancer had weakened and her prognosis was positive (3) But, in July of 2011, Rebecca's condition took an abrupt and unexpected turn for the worse because she could not receive her sixth life-saving Doxil chemotherapy treatment (4) As her doctors explained, "there was no more Doxil available" (5) Similarly, at the young age of nine, Alyssa Divers was diagnosed with Osteosarcoma, a rare and aggressive cancer (6) After many sessions of chemotherapy to fight this vicious disease, Alyssa found out that her next chemotherapy appointment might be delayed because the hospital had a shortage of methotrexate--the "cornerstone of therapy" for Osteosarcoma (7) Alyssa knew that her tumors would double every thirty four days without methotrexate treatments, but in the case of a shortage there was nothing she or her doctors could do to get her the medication that she needed to stop the proliferation of her cancer (8) Over the last decade, these stories have become increasingly common in the United States because we are experiencing an unprecedented drug shortage pandemic (9) Recently, the term "drug shortage" has become prolific; the term appears in newspaper headlines, hospital forms, and pharmaceutical paperwork informing practitioners and patients alike that the drugs needed to keep patients alive are indefinitely unavailable (10) The facts are glaring The number of drugs in short supply has quadrupled from 2005 to 2011, jumping from sixty one drugs to a staggering 251 (11) Ominously, in 2010 and 2011, almost seventy five percent of the drugs in short supply were sterile injectable agents, which are the foundation of life-saving cancer treatments, antibiotics, and emergency room medications (12) These startling figures, along with stories like those of Rebecca and Alyssa, seem to implore the inquiry: why are so many of these critical drugs suddenly and simultaneously unavailable? The reason for the shortage of sterile injectable drugs is an exceedingly complex issue and there is no prevailing consensus with regard to why these drugs are in short supply (13) The origins of this pandemic can be traced to a variety of factors, including: industry consolidation, production delays due to quality and manufacturing challenges, discontinuations, small profit margins, shortages of the necessary raw materials, changes to inventory practices, unanticipated increase in demand, a public shift in policy within the Food and Drug Administration (FDA) regarding its compliance mechanisms, and an increase in the prosecution of high-level corporate managers for statutory violations (14) Despite disagreement among commentators as to the cause of the crisis, it is indisputable that the drug shortage is having devastating effects on both patient care and our health care system as a whole, and the problem must be remedied (15) The next Part of this article sets out the current drug shortage problem by analyzing data compiled by the FDA and the American Society of Health-System Pharmacists (ASHP) Within this part, we focus on the submarket that accounts for most of the current drugs on shortage, sterile injectable drugs Part III discusses the FDA's current policy initiatives concerning regulatory compliance in the pharmaceutical industry Part IV discusses one device that the FDA is using with extraordinary frequency to carry out its compliance policy--the issuance of warning letters that mandate that companies correct all violations within fifteen days or face forced closure Next, Part V explores the resurrection of the Park doctrine, a legal device used by the FDA and the Department of Justice (DOJ) to criminally prosecute corporate executives whose companies are not in strict compliance with FDA regulations or the Food, Drug, and Cosmetic Act …

Don't Text, Talk, and Walk: The Emerging Smartphone Defense in Personal Injury Litigation

Abstract: Like it or not, many of us are both happily and hopelessly addicted to texting, tweeting, emailing, and speaking on handheld devices. On the professional side, this permits lawyers, waiting in court to quietly but effectively communicate with colleagues, clients, and opposing counsel in other cases, without disturbing judges, court officers, and other lawyers also patiently waiting for their cases to be called. On the personal side, this allows everyone to communicate at any time with everyone about anything; whether announcing we will be a few minutes late for lunch, rescheduling an appointment, providing a picture of the tuna fish sandwich someone had for lunch and posted on Facebook for others to admire, or tweeting about the new episodes of "Arrested Development" or "Veronica Mars." Just look around the next time you are stopped at a cross-walk waiting for the traffic signal to change: people, like you and I, with smartphones in our hands, staring at them intently, rapidly moving our thumbs, and texting. Those listening to music on iTunes or Spotify are easily distinguished, as their heads may bob in time to the music. Not so with those who text: a steady head and quick thumbs are the key to rapid texting. Just try having a serious conversation with someone who is walking and texting. Whatever happened to the advice from our parents, "look both ways before crossing?" Today, people are looking down, not up or around. Many of us now reflexively, if not instinctively, repeatedly examine our handheld devices to make certain that nothing (critical or otherwise) has taken place in the five minutes since we last looked at our smartphones. Consider Bobby Valentine who, in the final days of managing the Boston Red Sox, fell off a bicycle while riding near the Central Park Reservoir in Manhattan. (1) It was not a good year for Bobby V., who was reading a text on his phone from Red Sox All-Star second baseman Dustin Pedroia while riding a bike. (2) Valentine claimed that he looked up and, when he "swerve[d] to avoid the umbrellas of two French tourists walking in front of him," his bike skidded, causing him to lose his balance and careen to the bottom of a ditch. (3) It is unknown whether the unidentified French tourists were related to the marshmallow salesman who New York Yankees Manager Billy Martin famously alleged he punched out in a lobby, (4) but we do know that Bobby Valentine admitted to his error, stating "I shouldn't have been reading a text while I was riding.... That's the wrong thing to do. But at least I was wearing my helmet." (5) Leave it to Bobby V. to give new meaning to "spin." Nearly half of all adults in the United States now own smartphones. (6) A wealth of scientific studies show that the human brain has difficulty focusing on more than one thing at a time, (7) but we stubbornly continue to multi-task and even believe that this shows that we are superior individuals, fully capable of handling several matters at once, because we all are so important and indispensible. With the proliferation of texting technology, the number of people who regularly send and receive texts has exploded. "In December 2001, the monthly number of text messages sent in the United States was 252.8 million." (8) One decade later, by December 2011, "that monthly number nationwide had jumped to 193.1 billion according to CTIA--The Wireless Association, a Washington-based organization that represents the wireless industry." (9) A June 2013 study by Liberty Mutual Insurance found that 26% of pedestrians walk while texting or emailing, despite the 55% considering those behaviors to be dangerous. (10) Since drivers and pedestrians engage in dangerous activities, despite recognizing the risks involved, the logical conclusion is that many people are doing so because of a "it won't happen to me" attitude. (11) Nor is it only teenage drivers who engage in texting while driving. …

At the Intersection of Wall Street and Main: Impacts of Hydraulic Fracturing on Residential Property Interests, Risk Allocation, and Implications for the Secondary Mortgage Market

Abstract: I. AT THE INTERSECTION OF WALL STREET AND MAIN Unconventional gas drilling--that combination of high volume hydraulic fracturing and horizontal drilling for shale (methane) gas (a.k.a. "fracking") affects Americans in ways which are not immediately obvious. Ways involving repercussions from residential fracking and lacking regulatory oversight which go beyond the Halliburton Loophole. (1) Homeowners with unconventional gas drilling operations host two Wall Street investments courtesy of their residential property: one derived from a gas lease, the other from a home mortgage. (2) The mere existence of a signed gas lease enables the gas company to leverage it to obtain investors and financing. (3) The mere existence of a signed gas lease can affect the home's appraised value and the homeowner's ability to obtain a mortgage loan, homeowner's insurance, and sell the residence. (4) The cumulative effect of unconventional gas drilling on residences in the thirty to thirty-five states where operations occur, or are planned, poses a potential threat to the nation's $6.7 trillion secondary mortgage market, since the secondary mortgage market is supported by an unknown number of mortgages affected by residential fracking. (5) Projections for recovery of shale gas change from year to year with estimates increasing in certain shale plays and decreasing in others. (6) Furthermore, there is data indicating that "[t]he true extent of unconventional oil and natural gas reserves in the United States is uncertain ... because assessments of technically recoverable reserves are far more predictive than they are factual." (7) Homeowners with a gas lease seek to reap significant royalties during the gas boom while maintaining the long-term value of the family residence. According to a Penn State report, 60 percent or more of the gas could be extracted in the first year with a steadily declining curve thereafter. (8) Shale gas investors, including New York State's pension fund, hope to cash in on the shale gas boom. (9) Unconventional gas drilling requires access to substantial cash flow. During the past several years Wall Street private equity investment firms, such as KKR, have raised billions of dollars from investors who seek high returns and must accept the risk and volatility that goes along with it. (10) KKR's website indicates an affinity for investing in energy--yet KKR also handles mortgaged backed securities. (11) Goldman Sachs is another Wall Street firm which describes itself "[a]s a major player in the Energy Sector" with expertise spanning "from unconventional oil and gas" to renewable energy sources. (12) Goldman Sachs also handles residential loan trading and secondary mortgage market investments. (13) Traditionally, investors in mortgaged backed securities include pension managers for municipal governments, credit unions, colleges, and other institutions focused on more stable investments even though they typically yield lower returns. (14) The mortgage market is showing signs of a rebound following the mortgage crisis of 2007; yet, Wall Street's robust embrace of unconventional gas drilling raises questions about whether people's Main Street homes and Wall Street's alternate support of the secondary mortgage market can remain intact in the presence of this drilling rush. While this article does not purport to resolve this critical question, it does attempt to identify conflicts between gas leases and mortgage loans, potential repercussions resulting from the conflicts, and it proposes solutions: preventative actions intended to preserve residential and farm properties and fortify the mortgage market in the presence of unconventional gas drilling. The approximately decade old combination of high volume hydraulic fracturing with its millions of gallons of chemically treated frackwater and resulting volumes of toxic, radioactive waste, combined with multi-directional mile-long horizontal pipelines which enable high volume drilling across various properties, is responsible for revolutionizing homeownership across America. …

Sustainability of innocence reform

Abstract: I. INTRODUCTION Freeing one innocent prisoner, whose conviction masked the truth, seems an ultimate act of justice, as it rectifies a palpable wrong inflicted by the very system designed to guarantee true judgments. Yet one exoneration, however welcome, is inadequate to uphold a societal sense of justice in the face of growing knowledge that wrongful convictions are widespread. (1) The disquiet caused by knowing that many prisoners have been officially exonerated is compounded by studies estimating that wrongful convictions occur at significant rates, leading to thousands of miscarriages of justice every year. (2) Disquiet deepens when a wealth of scholarship shows that errors of justice are not inevitable results of human fallibility but are produced by systems that are correctible. (3) Disquiet turns to dismay when, realizing that innocence reforms that logically reduce the number of wrongful convictions also create a more accurate criminal justice system that will better convict the guilty, forces of inertia continue to obstruct such reforms. (4) Although legal scholarship tends typically to focus on doctrinal developments over time, (5) a lesson from the innocence movement's brief history is that the extensive problem of wrongful convictions cannot be satisfactorily addressed one case at a time or by the accretion of legal doctrine. What distinguishes the Innocence Project, (6) the Center on Wrongful Convictions, (7) the Innocence Network (8) and other contemporary innocence organizations from earlier exoneration-only innocence groups (9) is their realization that systemic policy reform is a necessary component of their work. (10) Within two decades, innocence advocates have advanced an impressive array of criminal justice system changes that are likely to reduce the number of wrongful convictions. The centrality of innocence reform is recognized by the innocence movement's leaders as indispensable to the goal of achieving justice. (11) A general policy approach includes not only the traditional province of lawyers (statutes, constitutional and common-law judicial decision-making, administrative law) but also the realms of politics, public policy, and agency behaviors that are analyzed with theoretical and empirical tools of the social sciences. Social and institutional changes do not just happen. Most institutions are resistant to structural reforms unless goaded by external forces, like competition that threatens the profits of a business enterprise or an enemy attack that threatens national security. In the world of criminal justice the investigation and prosecution functions have been insulated from structural change by the system's constitutional framework, the political power of police and prosecutorial agencies, and the general view that few wrongful convictions have occurred. It took a slow-moving catastrophe, catalyzed by the advent of DNA profiling, to change this deep complacency and to begin to move the large and unwieldy adjudication system toward innocence reforms. Although a few high-profile exonerations began to raise public awareness, it is the steady reporting of individual "disasters" from across the United States, year after year, month after month, day after day, that has created awareness of an innocence crisis. (12) In this article we examine the innocence movement from a broad policy approach in order to assess the prospect of effecting meaningful criminal justice reforms designed to reduce the incidence of wrongful convictions. We ask whether the level of innocence reform thus far achieved in the justice system can be sustained and expanded. Prognostications of social trends are risky and ought to be based on empirical evidence or special expertise. Given the multidisciplinary nature of wrongful conviction scholarship and the complexity of wrongful convictions, it would normally be foolhardy to make a broad assessment and forecast. What impelled us to assess future trends was our recent experience as co-editors of a volume authored by experts in various areas of wrongful conviction scholarship. …

The Democratic Mission of the University

Abstract: The university is a self-governing institution dedicated to the discovery and dissemination of knowledge. (1) As a historical matter, universities were not borne of the democratic impulse and many of their grandest achievements are wholly unrelated to the furtherance of democracy. Yet today they function in such a way in the United States so as to enhance and strengthen the quality of its democratic system. Democracy is a system of collective self-governance in which the people shape their public life. The leaders of government are chosen by citizens and then held accountable for their actions through a series of periodic elections. In this way, democracy exalts popular choice. It also presumes, however, that this choice is enlightened. Citizens need to understand the nature of the choices that they face, and must possess the capacity to evaluate the policies and practices of the government and its leaders. Although unenlightened choice is still a choice, that kind of choice and the democratic character of the political system that it supports are not especially inspiring or worthy of our admiration. The university plays an important role in the process of enlightenment that democracy presumes. Some branches of the university, for example, the departments of political science, sociology, and law, are dedicated to discovering and disseminating knowledge that has a direct bearing on public policies. These departments routinely study the promises of those running for office and the programs that the winners eventually implement. Other departments, like philosophy and literature, or the humanities in general, are concerned with the formation of the moral and political values that will guide citizens in the exercise of their choices. Even the hard sciences play a vital role in informing this process of self-determination. Scientific knowledge is essential for evaluating many government policies, such as those related to the environment, the development of alternative sources of energy, and bio-medical research. Even more, the physical and biological sciences, much like the other branches of the university, are responsible for the intellectual and cultural development of society and enhance citizens' capacity to understand themselves and the world around them. Professors are the ones primarily responsible for the discovery and production of knowledge. Some of this knowledge is made available to the public through books, articles, public lectures, and the occasional op-ed. Most of it is imparted to students in their classes. Students enter the university at an early age and are enrolled in it for only a few short years. They should be viewed not as passive vessels but rather as active participants in the process through which opinions and beliefs are tested and knowledge revealed. They speak back in class, often challenging the day's lecture, and they also undertake research projects. Admittedly, students engaged in research are guided and supervised by their teachers, but this does not lessen the importance of their research and the discoveries that it may yield. The contribution of the university to the nation's democratic life is not measured solely by the storehouse of knowledge that it produces. The university also enhances the practice of democracy by instilling in students and faculty a critical frame of mind. (2) Ideally, faculty members are hired and promoted not just on the basis of what they discover, but also on the basis of their capacity to sift through evidence, detect logical flaws, and distinguish a good argument from a bad one. The faculty teach these skills to the students, sometimes only by example, and these lessons are reinforced by the so-called informal curriculum of the university--the many activities and programs that students engage in outside of class, such as working on a student journal or participating in a debate society. Rational inquiry and independence of judgment are virtues that govern all facets of university life. …

The Thirst of Fracking: Regulating to Protect the Linchpin of the Natural Gas Boom

Abstract: The natural gas boom sweeping the United States has many enthusiastic about the production of domestic energy and the accompanying economic opportunities, but often taken for granted is another valuable resource that is essential to the extraction process: water (1) The natural gas boom was ignited by the development of high-volume hydraulic fracturing (fracking) with horizontal drilling, which has enabled oil and gas companies to extract oil and gas from a significantly larger underground area through a single well (2) The fracking process, however, requires huge amounts of water, in essence trading one resource for another (3) In order to break up the shale and release the oil or gas, millions of gallons of water are mixed with sand and chemicals and injected into the well at high pressure (4) Wells are drilled thousands of feet deep and then angled horizontally to access the shale, potentially stretching for thousands of feet (5) The discovery of this new drilling technology in the last decade has opened up massive reserves of shale to oil and gas development in the United States (6) Fracking was first employed in the Texas portion of the Barnett Shale in the 1990s, and came to eastern states in 2003 when the first horizontal well tapped the Marcellus Shale in Pennsylvania (7) The boom ensued (8) In August 2011, the Secretary of Energy Advisory Board reported that, "Owing to breakthroughs in technology, production from shale formations has gone from a negligible amount just a few years ago to being almost 30 percent of total US natural gas production" (9) Even with low natural gas prices, some state and local economies are still booming from natural gas operations (10) Certain communities across the US that host oil and natural gas activities are seeing increases in jobs, tax revenues, incomes, economic activity, housing prices, and even zero vacancy rates (11) Such economic growth is in stark contrast to much of the rest of the country, as it wades through a lingering recession (12) Despite the booms and often-cited economic potential for gas drilling in the United States, a critical, inescapable fact is that significant amounts of water are needed for drilling operations (13) Given the two to five million gallons of water used to frack a horizontal shale gas well and extract gas, the natural gas industry's expansion throughout the US has raised water supply concerns (14) The Colorado Oil and Gas Conservation Commission (COGCC) estimates that almost 17,800 acre-feet of water (one acre-foot equals about 326,000 gallons) will be used for fracking in Colorado in 2014 and almost 19,000 acre-feet will be used in 2015 (15) The New York Department of Environmental Conservation's Revised Draft Supplemental Generic Environmental Impact Statement (RDSGEIS) estimates that "average water use per well in New York could be 36 million gallons" (16) Such large-scale water withdrawals for fracking could impact water supplies, and other industries and uses as well as ecosystems may find themselves competing with the gas industry (17) Much of the water used in fracking remains trapped deep underground (18) The US Environmental Protection Agency (EPA) estimates that anywhere from 15% to 80% of the water is pushed back up to the surface (19) This water, called "flowback," may contain elements of the chemicals added to the fracking fluid or hazardous chemicals from below the earth's surface (20) This water cannot be adequately treated by typical municipal water treatment plants, so it must either be stored--such as by being injected into an underground disposal well--or transported to a facility capable of processing chemical wastes (21) Thus, the fracking process raises issues of water quantity and water quality, presenting regulators with complex challenges regarding how to properly and adequately regulate fracking in order to preserve water supplies and protect the quality of those supplies …

Comparing Injustices: Truth, Justice, and the System

Abstract: INTRODUCTION On the night of October 13, 2001, Rudolf Rupp, a farmer in the small town of Neuburg an der Donau (Bavaria, Germany) gets into his Mercedes and drives to the bar of the local sports club, where he sits at his table--alone People avoid him Often, he would not change clothes and come directly from the barn But he is also considered a brawler and he drinks, a lot At around one o'clock in the morning, after having eight pints of beer, he leaves with a blood alcohol level of around 25 percent This is the last time he and his Mercedes are seen (1) His wife gets concerned and reports him missing but nothing happens for two years--apart from the gossip that spreads through the village Rumors circulate suggesting that the family might have killed the unsympathetic Rudi and buried him in the dung heap, or even chopped him up and fed him to the dogs and pigs In January 2004, police, equipped with a warrant, searched the farm but could not find a trace of blood or any evidence in support of the allegations The family of the missing Rupp is interrogated at the police station During these interrogations, Hermine, wife of Rudi, their two daughters, and the fiance of the eldest daughter confessed to having killed Rudi that night None of them has an IQ higher than seventy Their confessions are detailed They describe how they waited for the victim to come home, how they first bludgeoned him, and later dismembered the body in the basement in order to feed the pieces to the dogs Although physical evidence is missing, the prosecutor charges all four with manslaughter All four, now represented by attorneys, recant their confessions and deny any involvement in the killing The case is tried regardless and although evidence is circumstantial, both Rupp's wife and the fiance of the eldest daughter are convicted of manslaughter and sent to prison for eight and a half years The daughters are tried as juveniles and also convicted The defendants protesting their innocence appeal the conviction but are unsuccessful Then, one day in March of 2009, fire fighters pull a black Mercedes E 230 out of the Danube River Behind the wheel is the fully intact corpse of Rudi Rupp "At that time," says the prosecutor, "we knew the story with the dogs was false" (2) Defense attorneys filed motions to reopen the case because of the newly found evidence but the motions were denied, mainly on the grounds that the confessions might have been false in regard to how the body was disposed of but still held with regard to the elements of the crime On appeal, the State Supreme Court of Bavaria allowed the motions and ordered a new trial This led to the acquittal of all defendants During the retrial, the court explained that it was persuaded of the involvement of one or more of the defendants in the death of Rudolf Rupp, however, it simply could not be proven There is more to say about this case, about the junk dealer, for example, who was accused of aiding in disposing of the Mercedes (before it was found), who claimed that he was threatened by the police to make statements to that effect While the original charges were unsupported, he was then accused of making false unsworn testimony when he explained that he was forced by law enforcement This case of a wrongful conviction in Germany has received some of the highest media attention in past years It has gained so much attention not only because of the absurdity of the circumstances, but also because it shattered the belief that the German legal system does not produce wrongful convictions (3) Whether or not this case is exemplary or an exception cannot be answered easily since the extent of wrongful convictions in Germany is unknown (4) Rolf Eschelbach, a judge at the Federal Court of Justice, estimates (without statistical support) that probably more than 25 percent of all felony convictions are wrongful (5) The number of wrongful convictions may not be that high, (6) but innocent suspects are accused and convicted in Germany, and inquisitorial systems like Germany may be particularly prone to specific errors like tunnel vision--one of the leading causes of wrongful convictions in the United States …

Sidestepping Justice? Adjournments in Contemplation of Dismissal in Misdemeanor Court

Abstract: I. INTRODUCTION In the public mind, justice is served when defendants' rights are observed, when the legal process arrives at more, rather than less, accurate verdicts, and when the consequences of illegal behavior correspond to society's sense of fair sanctions. The goodness of fit between these ideals and reality is on public display in jury trials, sentencing reports, and appellate proceedings. But a great deal of adjudication--misdemeanor case processing--happens below this public radar, and is seldom subject to empirical research. Little is known about how prosecutors and judges handle cases in lower courts, where dispositions may involve options such as diversion and conditional dismissal that blur the legal lines around judgments of guilt. This article explores dispositions of partner violence cases in three city courts in upstate New York, focusing on one such procedure--adjournment in contemplation of dismissal--that simultaneously treats defendants as de facto guilty (by imposing a waiting period of "good behavior" before final disposition), in exchange for a contingent promise to withhold conviction and permanently seal public records of the charges or resolution. (1) In principle, these adaptations of the pretrial process are justifiable when the consequences of a conviction and resulting sentence are clearly outweighed by the negative effects of such decisions for defendants, victims, and the community. Often the criterion or rationale for these dispositions is "the interest of justice." (2) This sort of diversion is both practical and sensible in many individual cases. For example, first-time offenders who, having violated the law, nonetheless have produced no harm and who exhibit remorse might appropriately be given an opportunity to avoid the stigma of conviction. However, when these dispositions become normative in any particular type of case, we might reasonably investigate the factors that are associated with these decisions, and consider their implications not only for defendants but for victims and the larger community as well. In New York courts, adjournment in contemplation of dismissal (ACD) has long been a common disposition in domestic violence charges. (3) Historically these cases, which often involve physical abuse, threats, and property damage, have been marginalized by the legal system, often trivialized as "disputes," "mutual combat," or "family problems" rather than criminal acts. (4) Beginning in the 1980s, reformers argued for police and court practices that focused on defendant behavior and culpability rather than relationship dynamics. (5) By the mid-1990s, like many other states, New York had enacted a series of reforms aimed at increased enforcement and prosecution, and greater responsiveness to the specific needs and concerns of partner violence victims. (6) The goal of these reforms included increasing both the accountability of perpetrators and the accountability of the criminal justice system to victims and potential victims. (7) Yet very little is known about the circumstances that result in these dispositions, which paradoxically imply guilt in the courtroom but sidestep a conviction, punishment, and public record of arrest. We suggest that routine use of ACD might constitute a misstep of justice if this outcome (1) is associated with offender or case characteristics that are legally irrelevant to a verdict, or (2) is not associated with legally relevant factors (such as evidence and blameworthiness) that ought to distinguish between convictions on the merits and acquittals or dismissals. We also suggest that ACDs might be judged missteps of justice if they appear to be little more than reifications of earlier legal decisions (such as bail decisions and appointment of counsel). II. PROSECUTION OF DOMESTIC VIOLENCE CASES Research on the prosecution and adjudication of domestic violence cases is uneven, sometimes contradictory, and ultimately inconclusive. …

From the Asylum to Solitary: Transinstitutionalization

Abstract: I. INTRODUCTION England, by a decree of 1697, and as a mark of civilization, established houses of correction for persons with mental illness. (1) These mentally ill persons were penned up with other "socially deviant persons" because it was felt that undesirable behavior could be corrected by punishment. (2) In those times, mental illness was considered a "curse, corruption of the soul, or possession of demons." (3) And so the mentally ill were put in asylums--a form of imprisonment. In the 1840s, in the United States, Dorothea Dix discovered that the mentally ill were being confined in the nation's prisons. (4) She began a nationwide crusade to remove these persons from prison-- to see to it that they were put in treatment facilities. (5) Speaking before the Massachusetts Legislature she said: I proceed, gentlemen, briefly to call your attention to the present state of insane persons confined within this Commonwealth, in cages, closets, cellars, stalls, pens! Chained, naked, beaten with rods, and lashed into obedience. (6) As a result of her crusade, states created psychiatric hospital systems and the number of severely mentally ill prisoners nationwide was reduced to less than 1%. (7) However, these psychiatric hospitals, or "asylums," were underfunded, overcrowded, and poorly staffed. (8) Over the years, most of these institutions have been virtually abandoned. (9) Since 1970, almost 90% of these psychiatric hospital beds have been closed and the mentally ill are again being put into our prisons. (10) Today, there are likely more than 350,000 seriously mentally ill prisoners behind bars; or an estimated 16% of our jail and prison populations. (11) We have transinstitutionalized these prisoners from the psychiatric hospitals into the cells, it has reached the point where law enforcement personnel, correction officers, and the criminal justice system are primarily responsible for persons who are in psychiatric crisis. In the United States, "jails and prisons treat more people with serious mental illness than hospitals" and "have become the insane asylums of the 21st Century." (12) It would appear that we have come full circle--prisons are once again being used to house many who are seriously mentally ill. (13) They are, once again: houses of correction for persons with mental illness. Imprisonment for a person with normal brain function can be Kafkaesque, but imprisonment for a mentally ill person can be beyond the pale of imagination. Prisons are governed by strict rules--institutionally and nuanced codes among the prisoners themselves. The mentally ill inmate often cannot comprehend or even vaguely understand these rules. In addition, mentally ill prisoners are often provocatively irritating and offensive to other prisoners and prison guards. Screaming obscenities, removing clothes in a rage, throwing food, and setting fires to purge their cells of the devil are not unusual behavior patterns for these seriously mentally ill inmates. It is this aberrational behavior which results in a disproportionate number of these inmates being put in solitary confinement. There is no disciplinary hearing or due process preliminary to an inmate being so confined. Prison guards need little provocation, and are the sole judges of who and for how long an inmate can be put in solitary. Once a seriously mentally ill prisoner is put in solitary confinement, a new tragedy unfolds. Locking up a seriously mentally ill person in solitary, claustrophobic eight-by-ten cells for twenty-three hours a day, with only one hour in an outdoor zoo-like cage, isolated and idle, only exacerbates their symptoms and leads to greater mental dysfunction. I have seen and been with mentally ill prisoners in solitary confinement. They are mostly untreated or under-treated and as a consequence of neglect, they deteriorate. Their behavior becomes unpredictable--they may react violently to the goading of other inmates, or they may rant or engage in incoherent babble which infuriates their guards. …

The Limits of Deception: An End to the Use of Lies and Trickery in Custodial Interrogations to Elicit the "Truth"?

Abstract: The State of New York has a long and ignominious history of wrongful convictions related to false confessions. From George Whitmore, a nineteen year old eighth grade drop-out who was watching Reverend Dr. Martin Luther King Jr.'s "I Have a Dream" speech in Wildwood, New Jersey at the time two "career girls" were murdered in a Manhattan apartment, (1) to the five young minorities wrongfully convicted for raping a jogger in Central Park, (2) scores of innocent people have confessed during custodial interrogations in New York to committing brutal crimes. (3) In fact, after Illinois, New York has the most wrongful convictions based on false confessions in the nation. (4) And the shocking number is likely to grow. In Brooklyn, the District Attorney's Office has reopened as many as fifty trial convictions involving a detective named Louis Scarcella, whose overbearing and allegedly illegal tactics may have sent innocent men to prison. (5) A panel has been appointed to review the convictions (6) and the Legal Aid Society is coordinating with a large group of Manhattan law firms that have taken on individual cases involving Scarcella. (7) Case files relating to Scarcella have been subpoenaed and are being reviewed by a state supreme court justice. (8) As chronicled in the New York Times, Scarcella and others in Brooklyn precincts appear to have used especially coercive techniques to induce confessions in the 1980s and 1990s. (9) But the problem of false confessions is not limited to Brooklyn. In fact, none of the six cases involving disputed confessions heard by the New York Court of Appeals over the past three years involved interrogations by Brooklyn detectives. Interrogations in these cases: Warney v. State of New York, (10) People v. Bedessie,n People v. Guilford, (12) People v. Oliveras, (13) People v. Aveni, (14) and People v. Thomas, (15) took place (respectively) in Rochester, Queens, Syracuse, Bronx, Westchester, and Rensselaer Counties. The phenomenon of unreliable, coerced confessions is as broad in New York State as it is deep and longstanding. That may well change, after a landmark decision by the Court of Appeals this term in People v. Thomas. (16) While the court broke no new ground conceptually--following its own and U.S. Supreme Court precedent--the court announced that some police interrogation tactics, when used in combination, cross the line between "voluntary" admissible confessions and "involuntary" or coerced inadmissible confessions. (17) In particular, three types of deception used in the Adrian Thomas case were found by the appellate division to pass muster under the conventional analysis of voluntariness, and defended by the District Attorney's Office, as perfectly acceptable uses of deception by the police officers. (18) The three lies told to Thomas with which the court took issue were that his wife would be picked up for questioning; that Thomas could save his child's life by confessing; and that the police viewed what happened to his son as accidental. (19) After this decision, police departments will need to exercise caution in conducting interrogations, and should not assume that any form of deception is permissible. (20) I. PEOPLE V. THOMAS: BACKGROUND Adrian Thomas, a twenty nine year old African-American man from Douglas, Georgia, with a tenth-grade education, met his wife Wilhemina Hicks of Troy, New York, at a chicken processing plant in Douglas where they both worked on the production line. (21) They married, moved to Troy, and together had seven children. (22) The last two, twins, were born two months premature, when Mr. Thomas was twenty five years old. (23) The family lived in a two-bedroom apartment, with the five oldest children sleeping in one bed, and the twins sleeping in bed with the parents. (24) The apartment was neatly maintained and the children clean and well behaved. (25) There was no history of hospitalizations or medical records indicating suspected child abuse of any of the children. …

Hydrofracking and Home Rule: Defending and Defining an Anti-Preemption Canon of Statutory Construction in New York

Abstract: Extracting natural gas through hydraulic fracturing of shale provokes bitterly divisive reactions from New Yorkers. Some communities celebrate hydraulic fracturing as a source of clean and cheap energy, jobs, and tax revenue. Others fear its environmental risks of water pollution and despoliation of scenic beauty. While the state population is divided, local constituencies are frequently much more united. (1) Some towns have welcomed hydraulic fracturing into their territory, (2) while other towns have used zoning law to ban it altogether. (3) With such a division of opinion, the regulation of hydraulic fracturing provides an ideal case study of whether municipal home rule can mitigate the costs of deep political disagreement by letting each community go its own way. A single statewide policy might bog down in acrimonious gridlock, but municipal legislators can more easily enact local solutions because their constituents share more consensus on the issue than the citizens of the state as a whole. The benefit of allowing policy disputes to be resolved at the level where there is the highest level of consensus suggests a policy of narrowly construing state statutory preemption whenever state law is ambiguous. As a matter of policy, therefore, one might urge state courts to resolve doubts about state law against preemption and in favor of local power, because preemption defeats municipal efforts to agree to disagree. But is such a presumption against preemption more than merely a good policy idea: Is it also the law of New York? Even if it is law, is a presumption against preemption specific enough to resolve any real legal disputes? This article answers both of these questions affirmatively. Article IX, section 3(c) of the New York Constitution requires that the home rule powers of municipalities be "liberally construed." (4) Such liberal construction, this article suggests, requires a qualified presumption against preemption: Unless statutory text manifestly and unambiguously supersedes local law, courts should presume that state law does not preempt local laws. This presumption is not irrebuttable: it can be overcome where local laws encroach on some substantial state interest that local residents are likely to ignore. The controversy over hydraulic fracturing provides a good example of a dispute that this presumption can help resolve. The state legislature has never given any serious thought to whether and what extent local governments should be permitted to zone out hydraulic fracturing operations. Given this inattention, which is reflected in the murky language of the preemption clause of the Oil, Gas, and Solution Mining Law (OGSML), (5) state law should be deemed to be ambiguous on the question of preemption, and state courts should construe this ambiguity to preserve local power. By so limiting preemption, state courts preserve democratic accountability, ensuring that the local level of government has legal powers to address an issue when the state legislature is paralyzed by its greater level of disagreement. The presumption against preemption defended here can be rebutted: Even ambiguous state laws can preempt local laws where the latter impose external costs on non-residents or disrupt the settled and investment-backed expectations of the local government's own residents. (6) Local prohibitions of hydraulic fracturing, however, impose neither the external nor the internal cost. (7) As applied to hydraulic fracturing, the presumption against preemption actually prevents the disruption of the expectations of local property owners who purchased their homes with the expectation that their value would be protected by local zoning laws. (8) By leaving in place such zoning until it is displaced by some plain state legislative intent to preempt, the presumption against preemption prevents a regulatory vacuum that unconsidered preemption would otherwise inflict at the state level. …

Leniency as a Miscarriage of Race and Gender Justice

Abstract: INTRODUCTION What is a "miscarriage of justice"? One might think of many ways in which the wheels of criminal justice jump the tracks. The criminal system might permit the conviction of an innocent or the admission of a coerced confession. The system might permit bribery and influence of state actors. The system might tolerate the mistreatment of victims, witnesses, or defendants in the process of adjudication. This particular issue of the Albany Law Review focuses on a specific undesirable situation, namely one in which a "guilty" person "goes free." Typically, victims' rights activists and conservatives concerned with crime control are the most vocally opposed to leniency and defendants benefitting from legal "technicalities." (1) There is, however, a set of cases in which the lenient treatment of criminal defendants engenders critique from progressive scholars--scholars whose sympathies otherwise lie with defendants' rights. In such cases, state actors and jurors treat apparently culpable defendants leniently, not to remedy police misconduct, but because of the minority status of the victim. (2) Progressive scholars contend that defendants who offend against women, racial minorities, and gays in ways that reflect social and cultural hierarchies are the beneficiaries of discriminatory mercy from biased legal actors. (3) Examples include the state's failure to take domestic violence seriously, (4) the various barriers to successful rape prosecution, (5) and male defendants' disproportionately successful use of the provocation defense in intimate homicide, (6) and "gay-panic" cases. (7) The liberal position on discriminatory leniency is poignantly exemplified by the progressive outcry against Florida's stand-your-ground law in the wake of Trayvon Martin's death. (8) Publicity of this now high-profile case began in the social network, and online outrage propelled it into national headlines. (9) It soon became politically polarized. Liberals condemn the shooter, George Zimmerman, for acting on racialized suspicion, the Sanford police for declining to arrest, (10) and the Florida law for permitting a person to kill even when safe retreat is possible. (11) Conservatives, by contrast, tend to side with Zimmerman, a local neighborhood watch leader, denying that he acted on the basis of race, and supporting the law as permitting law-abiding citizens to defend themselves. (12) In a sense, the world has been turned topsy-turvy. Progressive activists and scholars call for the application of police power to Zimmerman and the elimination of a defense-friendly law for all future murder defendants. (13) Conservative commentators lobby for prosecutorial restraint and the scrupulous honoring of a murder defendant's legal rights. (14) What could move the tough-on-crime party to support leniency? What could move state authority skeptics to champion broadening prosecutorial power? For the past several decades public discussion of the penal system has centered on spectacular crimes in which evil defendants commit grievous harms against paradigmatically innocent and vulnerable victims. (15) This framework permits conservative commentators to embrace ever-harsher criminal laws while exempting certain offenders like Zimmerman from the punitive paradigm on the grounds that he is not a "real" criminal and Trayvon is not a "real" victim. Liberal criminal law scholars, by contrast, generally resist the lure of spectacular retributive rhetoric and its punitive consequence and take a global view of the importance of protecting individuals from state penal authority. (16) Progressive theorists routinely criticize mass incarceration, the one-way upward ratchet of U.S. sentencing policy, and the eroding of defendants' civil liberties. (17) Nevertheless, liberals call for strict prosecution in Trayvon Martin's case, rather than applauding the Sanford police for scrupulously respecting Zimmerman's rights under Florida law. (18) This is because the police's unusually restrained behavior had less to do with any civil libertarian desire to protect Zimmerman's freedom than with the police's overt racism and internalization of the black-as-criminal stereotype (or at least understanding of Zimmerman's stereotypical thinking). …

Crying out for Change: A Call for a New Child Abuse Hearsay Exception in New York State

Abstract: I. INTRODUCTION According to a 2000 report by the U.S. Bureau of Justice Statistics, nearly seventy percent of all sexual assaults in the country are committed against children. (1) In 1990, a U.S. Department of Health and Human Services task force declared child sex abuse a national emergency. (2) While the age with the greatest proportion of assaults reported was fourteen, more than half of all child victims were under twelve. (3) Of those children under age twelve, four-year-olds were at the greatest risk. (4) According to UNICEF, "5 [to] 10 percent of girls and up to 5 percent of boys [in industrialized nations] suffer penetrative sexual abuse." (5) Up to three times that amount experience some other type of sexual abuse. (6) In 2007, Child Protective Services (CPS) in the United States investigated 3.2 million cases of suspected child maltreatment. (7) There were 164,831 maltreatment cases reported to New York State Child Protective Services in 2009. (8) 51,348 of those cases were indicated, (9) which means that there was enough evidence to continue the investigation because an investigator believed that the allegations were not unfounded. (10) Victims of child abuse (11) often do not disclose immediately after the abuse has taken place. (12) Sometimes, victims of abuse keep the events to themselves for many years. (13) For example, in a 1992 report, the National Victim Center & Crime Victims Research and Treatment Center found that only sixteen percent of sexual assault victims ever report the assault to the authorities, or fail to provide a full report. (14) Frequently, the child victim is unaware of the wrongful nature of the conduct or that what has occurred is not "normal." (15) The victim also often experiences feelings of confusion (16) and guilt, a desire to forget the incident, a fear of not being believed, and in many instances, may remain silent as a result of intimidation by the abuser. (17) If victims do eventually disclose the abuse, the disclosure is central to the prosecution's case: "Abusers may leave no physical marks on their victims, and children often do not resist outwardly or physically. Accordingly, there is usually little physical evidence to corroborate the child's allegations, and the child-victim is often the only witness [to the crime]." (18) So if a child discloses the abuse, testimony about what the victim said, to whom it was said, when it was said, and how the victim appeared while saying it, are important for establishing a strong case. (19) However, testimony about the disclosure is generally regarded as hearsay, and hearsay is typically inadmissible unless it fits within a hearsay exception. (20) Children are unlike any other witnesses or victims. (21) A delayed disclosure and the reason for the delay are part of the story describing an incident of child abuse; each case needs to be told in completion in order for the jury to get a full and fair picture at trial. (22) Victims are often the only witnesses to the crime. (23) Although New York State has a prompt outcry exception to the hearsay rule, which allows the "fact of a complaint" to be admitted into evidence, (24) the exception is insufficient to adequately protect child victims and effectively prosecute perpetrators of child abuse. In order for a child's entire story to be told, this exception must be broadened to include delayed disclosures, as well as the contents of the disclosure statement. This article proposes a change to the New York State law concerning outcries of abused children. Part II discusses current New York State law about disclosures made by child victims of sexual abuse. Part III discusses child abuse disclosure law in other United States jurisdictions and how it can inform advances in New York State law. Finally, Part IV proposes a new law for New York State that is consistent with the jurisprudential trend in the United States and will more adequately protect child victims from prejudicial exclusion of evidence in sex abuse trials. …

Defining Rights in the States: Judicial Activism and Popular Response

Abstract: This article examines state-level contests over the definition of rights. While the U.S. Supreme Court has established a floor of rights that all states must observe, states can expand rights beyond federal minimums. During the past four decades, courts in several states have developed expansive definitions of rights in hotly contested areas including capital punishment, criminal procedure, racial desegregation, abortion, free speech, education equalization, non-establishment of religion, non-discrimination on the basis of sexual orientation, and marriage for same-sex couples. Many of these decisions have endured and substantially reshaped the law. Others, however, have been reversed through state constitutional amendments. This article documents these patterns of conflict and concludes that the controversial state-level practice of popular referendums on contested rights provides important benefits, including increasing the legitimacy of new rights and reducing popular pressure for removal of judges.

A Champion for African Freedom: Paul Robeson and the Struggle against Apartheid

Abstract: I. INTRODUCTION On February 28, 2013, I was honored to deliver the Paul Robeson lecture at Columbia Law School, an annual event to commemorate the life and legacy of Paul Robeson, a graduate of Columbia Law School (Class of 1923). This article is a slightly expanded version of my lecture. (1) This article will have four components: first, it will highlight the achievements of this extraordinary man, an advocate for social justice, a world-renowned artist, and an accomplished sportsman. Second, in this article I explore Paul Robeson's connections and commitment to the African anti-colonial struggle, and in particular the struggle against apartheid in South Africa. Third, this article examines the legal developments in South Africa with the collapse of formal apartheid, and outlines the broad contours of the constitutional text, particularly the bill of rights and the constitutional and human rights jurisprudence of the Constitutional Court. Finally, the article will end with the question: what would Paul Robeson say about the contemporary moment that post-apartheid South Africa finds itself in? Professor Acklyn Lynch, in his 1976 article, Paul Robeson: His Dreams Know No Frontiers, said this of Paul Robeson: "Mr. Robeson was a man whose versatility has been unparalleled in American history as scholar, linguist, actor, singer, athlete, humanitarian, and whose striving for excellence in every undertaking was embroidered by a deep humility which endeared him to the hearts of millions of people around the world." (2) On February 19, 2001, the Columbia Daily Spectator, in an article to accompany the Paul Robeson Annual Lecture, said this about Paul Robeson: Paul Robeson, [Columbia] Law '23, struggled against racism his entire life. As a scholar he encountered intolerance while trying to achieve a higher education. As an artist he tried to unify people through music, once performing slave spirituals alongside Russian serf songs. And, most significantly, Robeson risked his entire artistic career to break down barriers of race not only in the United States but around the world as well. (3) II. BIOGRAPHY We know that Paul Robeson was born in Princeton, New Jersey on April 9, 1898, the son of a former slave who became a preacher. (4) He was a talented child who demonstrated great promise in academics, music, and athletics. (5) At the age of seventeen, Paul Robeson won a statewide writing competition that earned him a four-year scholarship to Rutgers University. (6) Paul Robeson was the third African-American ever to enroll in the university, and despite intimidation from his teammates, he joined the football team. (7) A two-time All-American for football, he also earned fifteen varsity letters in basketball, baseball, and track. (8) During his college career, Paul Robeson won the school's annual oratory contest four times, once speaking out against the inadequate educational opportunities for African-Americans. (9) After graduating from Rutgers, Paul Robeson was accepted to Columbia Law School, and to help pay for tuition, he played professional football and tutored in Latin. (10) He graduated from Columbia and worked briefly at a law firm, but he resigned when a white secretary refused to work for him. (11) Paul Robeson then vowed that he would never enter "any profession where the highest prizes were from the start denied to [him]," and turned to the stage. (12) A. An Internationalist Humanitarian Paul Robeson was one of those early twentieth century internationalist humanitarians who connected at a deep and profound level with the struggles of his own community in the United States, but also with those people everywhere who struggled against racism, fascism, colonialism, imperialism, and apartheid. (13) What is remarkable is his courage and determination, operating in the much diminished space for dissent during the Cold War era. …

Gas Transmission Facilities: The Limits on Home Rule

Abstract: I. INTRODUCTION High volume hydraulic fracturing (HVHF) is currently at the forefront of many New Yorkers' minds. The battle over the practice is proceeding on multiple fronts. In 1992, in accordance with the New York State Environmental Quality Review Act (SEQRA), the Department of Environmental Conservation (DEC) completed a Final Generic Environmental Impact Statement (FGEIS) for oil and gas wells, and determined that oil and gas wells do not have a significant adverse impact on the environment. (1) In 2009, the DEC issued a draft supplement to the FGEIS to consider environmental impacts relating to HVHF, as it was determined that HVHF and HVHF-related technologies were outside the scope of the FGEIS. (2) In 2011, in response to an executive order by then-Governor Patterson, the DEC issued a Draft Supplemental Generic Environmental Impact Statement (DSGEIS) and proposed HVHF regulations, as well as amendments to the Environmental Conservation Law (ECL) for HVHF. (3) More than eighty thousand comments were received. (4) Currently, no timetable is set for the completion of the SEQRA review. (5) At the same time, numerous local governments have taken it upon themselves to ban HVHF within their borders. (6) The best known of these are the towns of Dryden and Middlefield. (7) These towns, along with many others, passed local zoning ordinances with broad prohibitions against many kinds of gas extraction activities, including HVHF. (8) However, most of these ordinances also prohibit activities secondary to actual gas extraction, including the construction of gas gathering lines and compressor facilities. (9) Both the Dryden and Middlefield ordinances were challenged in court. (10) Landowners and gas developers challenged the legality of the ordinances, arguing that they were preempted by state law to the extent that they prohibited natural gas extraction. (11) The challenges failed at the supreme court level, with two judges deciding that the ECL only preempted municipalities from regulating the manner of gas exploration. (12) However, the courts held that the municipalities retained their broader power to regulate land use within their borders. (13) Basically, according to the supreme court judges, localities are forbidden from prescribing how gas is extracted, yet are free to prohibit gas extraction in toto. (14) Numerous articles and commentaries have been written on both the logic and legal validity of these decisions. (15) Nevertheless, both decisions were affirmed by the appellate division. (16) Last August, the Court of Appeals agreed to hear the two cases. (17) No matter how the Court of Appeals rules, one thing is certain. Both the Dryden and Middlefield zoning laws are excessively broad, in that in their zeal to ban all things "fracking," both towns undertook to ban gas gathering lines and compressor stations from within their borders, along with wells and other gas-extraction activities. Under Article VII of the New York Public Service Law (PSL), both laws will be ineffective in preventing the construction of gas gathering lines and compressor stations. (18) As explained in more detail below, gas transmission is at least as vital to increased natural gas use as increased local production. Even if HVHF is never permitted in New York, the state nevertheless has expressed a clear preference for increased natural gas use, whether it be natural gas extracted from conventional wells locally or using HVHF elsewhere. (19) In order for natural gas to reach consumers, it will need to be gathered and transported, which will require the construction of new transmission lines. (20) Article VII of the PSL gives the New York Public Service Commission (PSC) explicit authority to site gas transmission lines. (21) Part of that authority allows the PSC to refuse to apply local laws, such as those passed and (at least for the moment) still operative in Dryden, Middlefield, and dozens of other localities in New York. …

Truth, Justice, and the American Style Plea Bargain

Abstract: INTRODUCTION The aspirations of the criminal legal system are sometimes unclear. Truth or factual accuracy is one aim and justice, a balancing of interests, is another. So it is that the Supreme Court has enlivened this debate through the prism of American-style plea bargaining. (1) In the course of two decisions reassessing the proper standard for evaluating ineffectiveness of counsel in the plea negotiation context, the Justices spoke to the core division in the administration of criminal law: pretrial settlement versus fair trial, right to counsel versus due process. (2) The outcome analysis that insures the integrity of plea bargaining is focused on the fulfillment of an extra-constitutional practice, since there is no constitutional right to a plea offer. (3) And it calls for compromising the truth of the case through a plea agreement to lesser charges in most instances or to negotiated facts. On the other hand, the trial process leads to an approximate legal truth without the market place concessions of a bargain. (4) But the balance between justice and truth depends on the nature of the proceeding and the extent to which they are aimed at resolution or fact-finding. In the 2011 term, the Supreme Court decided two cases, Missouri v. Frye and Lafler v. Cooper, which highlighted whether the Sixth Amendment right to counsel safeguarded the integrity of the trial or encompassed non-trial facets such as the plea bargain. (5) This line of decisions has been followed most recently by Burt v. Titlow, (6) which further defined the role of postconviction record-making in assessing the fundamental question: Did the right to effective assistance of counsel protect the accuracy of the verdict or the fairness of the process? (7) Underlying the Justices debate over the constitutionality of plea bargaining are the core values of truth seeking in the justice system. It pits the notion of the plea bargain's fact-confirming role against the trial's fact-finding function. Indeed, the hierarchy of accuracy in criminal cases has been changing. (8) Pretrial investigations are undergoing reforms in response to wrongful convictions and reexaminations of forensic science. (9) At the same time the accuracy and reliability of the trial as the final arbiter of correctness, and its ability to purge investigative shortfalls, has been diminished. (10) Lastly, the system's overarching emphasis on pleas versus trials suggests that the focus is now plainly on outcome--compromise and convenience rather than truth, if ever truth were the goal. From arrest to resolution, every choice of the accused results in the assertion or waiver of an essential right. And, the decision to plead guilty waives the right to have the charges proved beyond a reasonable doubt, a conviction without trial. (11) Indeed, it is the choice of the accused to forgo the crucible of the trial for the compromise of the plea bargain. (12) Still, ineffective assistance of counsel deprives the defendant of making an informed, knowing, and voluntary choice by corrupting the process of information acquisition and exchange. (13) The damage can be so severe that even a fair trial cannot restore or validate the loss of the right to choose. A plea to the charge without concessions, without education, without information as to collateral consequences or punishment options or outcomes of conviction arises from ineffective counsel and the failure of due process. (14) Until recently, the U.S. Supreme Court paid scant interest to the bread and butter of criminal justice, but it is now focusing its full attention on the discount window. The preference for certainty over accuracy detracts from truth-finding, which has no end. Thus, finality has become an end in itself, preserving the integrity of the trial by limiting postconviction analyses. So the presumption of innocence finishes with conviction; and the sanctity of the conviction is embodied in finality, the presumption of guilt. …

New York City Taxis and the New York State Legislature: What Is Left of the State Constitution's Home Rule Clause after the Court of Appeals Decision in the HAIL Act Case?

Abstract: I. INTRODUCTION This past June, the Court of Appeals, in a unanimous opinion, upheld the constitutionality under the New York State Constitution of a plan, passed by the New York State Legislature in early 2011, which allows livery cabs to pick up passengers in the boroughs outside of Manhattan who hail the livery cabs from the street. (1) The statute also expands the number of traditional yellow cabs accessible to persons with disabilities. (2) The ruling was a victory for New York City Mayor Michael Bloomberg, who had turned to the state legislature to pass the Hail Accessible Inter-borough License Act, known as the HAIL Act, (3) when the New York City Council did not act on his original proposal. (4) Without the City Council's approval, however, the law could only survive under the New York State Constitution's Home Rule Clause if it served a "substantial" state interest. (5) While the Court of Appeals found that it did, and while the court's decision will presumably make it easier for passengers outside of Manhattan to hail livery cabs, this convenience does not come without a real cost: the court's cursory dismissal of the plaintiffs' home rule challenge leaves open critical questions about the scope of the State Constitution's protection of local governance. (6) Although the Court of Appeals' ruling does not bode well for the future of home rule in New York State, as discussed below, there are a number of ways that the Court of Appeals can provide guidance to both state and local governments going forward. II. THE HAIL PROGRAM Prior to the enactment of the HAIL Act, only licensed yellow taxicabs with medallions (7) were permitted to pick up passengers on the streets of New York City or at the city's airports. (8) Another category of for-hire cabs, known as livery cabs, were only allowed to pick up passengers who had prearranged for their pick-up by telephone or otherwise. (9) The HAIL Act dramatically changes this status quo by allowing livery drivers with new HAIL licenses to accept street hails in the outer boroughs and in northern Manhattan (above East 96th Street on the East Side and above West 110th Street on the West Side), but not at New York City airports. (10) Yellow taxis will still maintain the exclusive right to pick up passengers on the streets of Manhattan outside of the "HAIL zone" and at the airports. (11) In order to qualify for a HAIL license, livery vehicles will have to install taxi meters to measure the fare, among other requirements. (12) The HAIL Act further directs the New York City Taxi and Limousine Commission (TLC) to issue the new HAIL licenses in three installments over the course of three years. (13) Twenty percent of the new HAIL livery licenses are to be set aside for wheelchair accessible vehicles. (14) In order to further increase the number of handicap-accessible for-hire vehicles in New York City, the HAIL Act allows the City, "acting by the mayor alone," to direct the TLC to issue up to two-thousand new medallions for traditional yellow taxicabs, provided that they are wheelchair accessible. (15) In addition, the Act requires the TLC to establish a program to provide grants totaling up to fifty-four million dollars to support the introduction of accessible vehicles into the HAIL fleet. (16) The potential benefits of the statutory scheme are clear. Along with increasing the number and accessibility of for-hire vehicles in underserved areas, the HAIL Act legalizes, and hence regulates, what was previously an unlicensed and under-regulated industry. (17) Passengers hailing HAIL-licensed cars can now be secure in knowing that livery vehicles have been inspected for safety and benefit from upgrades the program requires: taxi meters, which ensure that passengers pay a fair rate without having to haggle; Global Positioning System (GPS) locators, which help passengers recover lost property; and credit card readers, which make it easier for passengers to pay. …

Fractured Communities: Hydraulic Fracturing and the Law in New York State

Abstract: The regulation of hydraulic fracturing has been debated on many fronts and that debate will now be heard before New York's highest court in the Dryden (1) and Middlefield (2) cases. The New York Court of Appeals will have to decide whether or not municipalities have the authority to ban hydraulic fracturing within their borders. The answer to this question will undoubtedly affect a multitude of stakeholders. Municipal legislators, homeowners, environmental advocates, and industry representatives will all be eagerly awaiting the answer to a question that has been looming in New York: Will hydraulic fracturing, specifically high-volume horizontal hydraulic fracturing, be permitted in the state? All aspects of hydraulic fracturing, from the process to the environmental impacts, have been fruitfully discussed and vigorously debated. Now the focus is on the small communities in New York's southern tier that sit above shale gas, and their power to regulate an activity of statewide importance. Some communities welcome hydraulic fracturing while others have passed local laws banning the activity completely. In an effort to discuss the potential impacts of permitting or banning hydraulic fracturing on New York's towns and landowners, the Albany Law Review sponsored a symposium entitled "Fractured Communities: Hydraulic Fracturing and the Law in New York State" in September 2013. This issue contains articles on topics that were presented, discussed, and debated at the symposium. The first article is written by Roderick M. Hills, Jr., the William T. Comfort, III Professor of Law at New York University School of Law and author of the amicus brief filed in the Appellate Division, Third Department on behalf of ten law professors in the Dryden and Middlefield cases. (3) Professor Hills examines whether a presumption against state preemption is the law in New York by analyzing the home rule powers granted to municipalities in the New York Constitution. He suggests that the language in Article IX, section (3)(c) of the New York Constitution, requiring that home rule powers of municipalities be "liberally construed," creates a qualified presumption against state law preemption of local laws. Professor Hills also contends that the ambiguity of the preemption clause of the Oil, Gas, and Solution Mining Law should be read in favor of preserving local power. Lastly, Professor Hills suggests that although the presumption against preemption can be rebutted as where local laws impose external costs on non-residents or disrupt settled and investment-backed expectations of local residents, in the case of hydraulic fracturing, the presumption against preemption actually preserves the expectations of local property owners. In the next article, Elisabeth N. Radow examines the interaction between gas leases, residential mortgages, and the secondary mortgage market. (4) Radow suggests that the mere signing of a gas lease can affect the value of a person's home and the multiple rights associated with homeownership. Furthermore, the cumulative effect of high-volume hydraulic fracturing on residences, Radow contends, will pose a potential threat to the nation's $6.7 trillion secondary mortgage market. This article provides a novel analysis to the potential negative effects that gas leases can have on homeowners sitting above the Marcellus Shale. Specifically, Radow delves into possible water contamination, structural damage to homes, and the ability of gas companies to sell and assign the gas lease without homeowner consent. In an attempt to temper some of these negative consequences associated with gas leases, Radow proposes a few solutions. These solutions include: requiring the Federal Housing Finance Agency, as a condition to transitioning the secondary mortgage market to private companies, to create underwriting guidelines which fully address the risks of high-volume hydraulic fracturing; requiring property appraisers that value properties in shale regions to understand the lifecycle of natural gas extraction; creating a national registry of all gas leases that encumber residential property; and reallocating risk to industry. …

Prosecutorial Misconduct in the Digital Age

Abstract: I. INTRODUCTION Prosecutorial misconduct, which this article defines as what occurs when a prosecutor deliberately engages in dishonest or fraudulent behavior calculated to produce an unjust result, is--according to many legal scholars--seriously underreported. One study utilizing a computer-assisted review revealed that there have only been just over one hundred reported cases of professional discipline of federal and state prosecutors in the past century--an average of approximately one disciplinary case per year. (1) Another leading scholar in the area has concluded that prosecutorial discipline is "so rare as to make its use virtually a nullity." (2) Why is this? Many reasons emerge, not the least of which is a practical, empirical obstacle to accurately assessing the problem: prosecutors who engage in such misconduct presumably don't want to be caught, and will take steps to conceal their actions. Another reason is the autonomy enjoyed by prosecutors' offices insofar as their internal policies are concerned. The considerable discretion afforded to prosecutors over whom to prosecute and which offenses to charge, coupled with a lack of external oversight of prosecutors' offices, fosters an environment in which misconduct can remain undetected and unchecked. Yet another reason is sheer volume: most criminal cases in the United States result in plea bargains, which are rarely subjected to judicial review or extensive investigation. (3) Consequently, the vast majority of known examples of prosecutorial misconduct only came to light during long, drawnout trials or over the course of an appeal, and often were discovered with the aid of resources beyond the means of the typical criminal defendant. In Connick v. Thompson, (4) for example, plaintiff John Thompson spent fourteen years on death row (and a total of eighteen years in prison) because prosecutors never disclosed an exculpatory blood evidence report from his defense attorneys. (5) The chance discovery--one month before Thompson's scheduled execution--by Thompson's investigator saved his life and led to the vacating of his convictions for both murder and armed robbery. (6) At least four, and possibly five prosecutors were aware of the evidence--a swatch of fabric from the bloody pants leg of one of the victims--which conclusively established that the perpetrator's blood was Type B (Thompson's blood was Type O). (7) Yet, it was never turned over to the defense. (8) Another reason for the underreporting of prosecutorial misconduct is the extreme reluctance and even disincentive on the part of those who are in the best position to report such conduct: other prosecutors, defense counsel and their clients, and judges. Prosecutors are reluctant to turn in colleagues; defense attorneys may feel instituting a bar complaint that they have precious little time for anyway can jeopardize ongoing dealings with prosecutors on other matters; and defendants themselves may believe that a complaint could adversely affect their case or their later prospects for parole. As for the hesitation of judges, one federal judge has summed it up nicely: "When faced with motions that allege governmental misconduct, most district judges are reluctant to find that the prosecutors' actions were flagrant, willful or in bad faith." (9) In addition, one cannot discount other factors that help account for the underreporting of prosecutorial misconduct. The rejection of tort liability (including common law personal tort liability under 42 U.S.C. [section] 1983 and municipal liability under [section] 1983) by the U.S. Supreme Court, most recently in Thompson, has proven to be a bar to punishing prosecutors' official misbehavior. (10) Professional discipline by state bar authorities, repeatedly endorsed by the Supreme Court as the appropriate vehicle for addressing claims of prosecutorial misconduct, (11) has also proven toothless. Along with the vast underreporting of prosecutorial misconduct and the lack of satisfactory, professionally viable means of ensuring accountability even where misconduct is reported, a potentially greater concern looms: technology. …

Juvenile Detention Reform in Missouri: Improving Lives, Improving Public Safety, and Saving Money

Abstract: Throughout the last decade, justice systems nationwide have begun to implement evidence-based treatment practices designed to determine the safest, most cost-effective ways to prevent a variety of offenders from reoffending. (1) When possible, courts using such practices often recommend services that can provide the opportunity for offenders to become productive citizens. While many states--including Missouri--have made extensive and effective use of evidence-based practices for adult offenders, such as drug and treatment courts, (2) fewer states have applied this same methodology to their assessment and treatment of juvenile offenders. However, if recent experiences in Missouri are any indication, it is clear that implementing evidence-based assessments and treatments of juvenile offenders will not only improve the lives of many youth at risk, but also improve the safety of the public overall--and all at a reduced cost to the taxpayer. In Missouri, the executive branch--specifically the Division of Youth Services--is responsible for implementing evidence-based and treatment-based reforms with regard to juvenile offenders who have already been sentenced, and indeed many successes for their efforts rightly have been documented nationally and replicated in other states. (3) Less well-known are the efforts made with regard to the services provided by the Missouri judiciary to juvenile offenders pre-trial, which we intend to document in this article. The Missouri judiciary's efforts in this area began in 2005 with funding from the Annie E. Casey Foundation for the pilot of the Juvenile Detention Alternatives Initiative (JDAI). "The Annie E. Casey Foundation is a private charitable organization, dedicated to helping build better futures for disadvantaged children in the United States" through promoting public policy and human-services reform and through obtaining community support for working with these juveniles. (4) JDAI is part of the foundation's national vision that all young persons who come into the juvenile justice system be given the support necessary to give them the chance to develop into healthy, productive adults. Historically, youth often have been detained unnecessarily at great expense, without adding to public safety--indeed such inappropriate detentions can have long-lasting negative consequences for both public safety and youth development. (5) JDAI promotes new program alternatives, delinquency hearing time standards, detention center self-assessments, community collaboration teams, and graduated sanctions to avoid unnecessary detention. (6) These changes have been successful in reducing reliance on secure confinement, improving public safety, reducing racial disparities and bias, saving taxpayers' dollars, and stimulating overall juvenile justice reforms. The goal of JDAI is to reduce the time youth spend in detention. With funding from the Casey Foundation, technical assistance from the Missouri Juvenile Justice Association and the Missouri Office of State Courts Administrator, and the dedication of four pilot circuits located in the areas with the largest detention center populations--Greene, Jackson, and St. Louis counties, and the city of St. Louis--that vision has become a reality in Missouri. (7) The impact of juvenile detention reform efforts by Greene County has been significant. Greene County is located in southwest Missouri and, as of the 2010 U.S. Census, was the fourth most populous county in Missouri. (8) Since 2005, there has been a thirty-five percent decrease in admissions, a thirty percent decrease in the length of stays, and a fifty percent decrease in the average daily population--all accomplished without there being an increase in juvenile delinquency within Greene County. (9) In fact, there has been a decrease in juvenile delinquency during this time, as evidenced by the decrease in filings of delinquency petitions. Jackson County (Kansas City metropolitan area), the second most populous county in the state, has seen a sixty-three percent decrease in admissions to juvenile detention, a sixty-two percent decrease in the average daily population, and a fifty-six percent decrease in state commitments. …

The Rise and Fall of New York's Rogers-Bartolomeo Rule

Abstract: If the reader were to access the 1981 case of People v. Bartolomeo (1) on Westlaw, there is a prominent red flag to the left of the citation, meaning that at least one legal proposition in Bartolomeo is no longer good or current law. In fact, the Bartolomeo portion of the Rogers-Bartolomeo Rule, which is the subject of this article, was overruled by the New York State Court of Appeals in 1990 in the case of People v. Bing. (2) Although the history of the Rogers-Bartolomeo Rule was relatively brief, spanning only a single decade, its impact was significant to defendants, crime victims, judges, prosecutors, defense attorneys, and legal academicians alike. The Rogers-Bartolomeo Rule was controversial during its time. The rule was launched into New York State's jurisprudence as a significant expansion to the state's criminal exclusionary laws, and was shot at during the decade that followed until it crashed and burned in 1990. The purpose of this article is not to necessarily debate whether the Rogers-Bartolomeo Rule was a wise or unwise expansion of the exclusionary rule and New York State's right to counsel. Rather, this article chronicles the history of well-intentioned efforts to assure the greatest degree of constitutional protections for persons confronted by the law enforcement arm of the state, and the courts' ultimate recognition that the expansion of the exclusionary rule proved to be impractical and unworkable for a variety of reasons, leading to its reversal. More than two additional decades have passed since Bartolomeo was reversed by the Court of Appeals. With hindsight and the perspectives that come with time, we may revisit the rise and fall of this controversial constitutional and evidentiary rule. I. GENERAL EXCLUSIONARY RULES FOR VIOLATIONS OF THE RIGHT TO COUNSEL The Rogers-Bartolomeo Rule arises out of the federal Sixth Amendment right to counsel. (3) The Sixth Amendment of the U.S. Constitution provides that, "[i]n all criminal prosecutions, the accused shall ... have the Assistance of Counsel for his defence." (4) The right to counsel is the last of several rights contained in the Sixth Amendment, including the rights to speedy and public trials, impartial juries, information about crimes charged, the confrontation of witnesses, and compulsory process. (5) The New York State Constitution contains language that is arguably less expansive about the right to counsel than its federal counterpart. (6) The state constitution provides that, "[i]n any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel as in civil actions and shall be informed of the nature and cause of the accusation and be confronted with the witnesses against him or her." (7) Nevertheless, New York's constitutional protections in favor of the accused are generally more expansive than their federal counterparts, as New York's interpretation of the right to counsel is defined within the broader constitutional context of the state's Fifth Amendment privilege against self-incrimination and the right to due process. (8) In New York, a statement to law enforcement personnel is not admissible against the defendant at trial if it is "involuntarily made." (9) The state's Criminal Procedure Law ("CPL") section 60.45(2) defines an involuntarily made confession, admission, or other statement as including those obtained: (a) [b]y any person by the use or threatened use of physical force upon the defendant or another person, or by means of any other improper conduct or undue pressure which impaired the defendant's physical or mental condition to the extent of undermining his ability to make a choice whether or not to make a statement; or (b) [b]y a public servant engaged in law enforcement activity or by a person then acting under his direction or in cooperation with him: (i) by means of any promise or statement of fact, which promise or statement creates a substantial risk that the defendant might falsely incriminate himself; or (ii) in violation of such rights as the defendant may derive from the constitution of this state or of the United States. …

The Double Jeopardy Clause, Newly Discovered Evidence, and an "Unofficial" Exception to Double Jeopardy: A Comparative International Perspective

Abstract: I. INTRODUCTION It is a common hypothetical posed to law students in criminal procedure classes: if a prosecutor comes across compelling evidence proving a person guilty of a crime of which they have already been acquitted, what can that prosecutor do? The Double Jeopardy Clause to the U.S. Constitution makes the answer patently clear: "[n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb." (1) However, perhaps even more so in recent years, the criminal justice systems in the United States and abroad have struggled with the concrete notion that finality and protection of individual rights must rule the day. (2) The United Kingdom's history regarding double jeopardy prohibition started out much the same way, (3) but in 2003, the parliament passed the Criminal Justice Act, which forever changed the way double jeopardy was applied in the United Kingdom. (4) Under the Act, for certain, specified crimes, a prosecutor could appeal an acquittal and retry a defendant on the grounds that newly discovered evidence incriminated him. (5) The United States has remained steadfast in its prohibition of double jeopardy. (6) The U.S. Supreme Court struck down a Maryland statute that allowed prosecutors to appeal acquittals, so even a federal statute allowing re-trial seems unlikely. (7) Further, the repeal of the Fifth Amendment seems highly unlikely. (8) However, research about actors involved in the criminal justice system demonstrates that attempts to curb prosecutorial discretion does not actually get rid of the discretion; it just shifts it to another level in the system. (9) The question in this article is whether, with respect to double jeopardy, in the absence of an express statute or constitutional provision permitting re-trials for acquitted defendants, prosecutors could "unofficially" use their discretion to form a loophole to the prohibition against double jeopardy using perjury prosecutions and subsequent civil and forfeiture proceedings used against defendants acquitted of the original charge. Although none of the United States case examples involve defendants who were "re-tried" for perjury or in civil court after authorities found new evidence against them, whether this repackaging of essentially criminal re-trials as civil cases is done with that end in mind (finding a loophole to double jeopardy) is the question that this article confronts. While it is easy to attack such an outcome as academically dishonest and against both the letter and the spirit of the Double Jeopardy Clause, it is difficult to ignore a civilized nation across the ocean such as the United Kingdom being able to retry the "acquitted but actually guilty" without having to resort to such measures. (10) In Part II, I will discuss the history of double jeopardy in the United Kingdom and how the murder of Stephen Lawrence spawned an investigative report to overturn the preexisting prohibition against double jeopardy, culminating in its first application against William Dunlop for the murder of Julie Hogg, and most recently, against Stephen Lawrence's killers. (11) Part III examines the history of double jeopardy in the United States, and examines whether concurrent federal and state prosecutions, perjury prosecutions, and civil trials or forfeiture hearings would provide an ample alternative to direct criminal prosecutions with which U.K. prosecutors may proceed. (12) Finally, Part IV concludes that each of these alternatives is insufficient to cover the "wrongfully acquitted" in any meaningful way, and more importantly, are an end run around a historically valuable constitutional right enjoyed by defendants. (13) II. THE HISTORY OF DOUBLE JEOPARDY IN THE UNITED KINGDOM While sources differ on the precise beginning of the prohibition against double jeopardy, it can be said with confidence that it has existed for at least five hundred years. (14) In the United Kingdom, while "[t]he double jeopardy doctrine appeared in cases as early as 1589," and predates case law on the issue by almost two centuries, (15) King Henry VIII passed a law allowing him to try defendants in England who committed offenses in Wales. …