Showing papers in "Albany law review in 2015"

The Potential Impact of Rape Culture on Juror Decision Making: Implications for Wrongful Acquittals in Sexual Assault Trials

Abstract: Feminist writers contend that Americans live in a culture that supports sexualized aggression and violence against women. This "rape culture" is reflected in our society by the pervasive endorsement of rape myths and sexual objectification of women, both of which are legitimized by everyday media. One potential consequence of living in a rape culture is that individuals may themselves come to endorse rape myths and sexually objectify women, and, in turn, perceive certain forms of sexual violence against women as defensible. This is concerning considering the significant role that laypeople play in administering justice in sexual assault cases, but research has yet to consider the impact rape culture may have on juror decision making. We review the concept of rape culture, explain the psychological process by which rape culture might influence juror decision making in sexual assault trials, review evidence for our hypotheses from the extant literature, and, finally, discuss future research directions and potential policy implications. I. INTRODUCTION Sexual assault of women by men (1) is a significant problem in the United States, as approximately one in five women are victimized over the course of their lives. (2) Despite the wide scope of this problem, it has been estimated that at best only five percent of sexual assaults result in a criminal conviction. (3) This low conviction rate can be attributed, in part, to the rape culture that exists in the United States. That is, the perpetuation of rape myths, sexual objectification of women, and media's legitimization of sexual aggression and violence against women are pervasive throughout American society, (4) and this culture affects the extent to which women victims come forward to report their experiences and, subsequently, how their cases are handled in the criminal justice system. For example, rape culture legitimizes erroneous beliefs about what constitutes "real rape" (5) and women's responsibility for avoiding victimization. (6) Consequently, sexual assaults are particularly likely to go unreported in cases in which women knew their assailant, (7) were not threatened by a weapon, (8) or did not sustain physical injuries, (9) and when women blame themselves for being victimized. (10) This is important to understand considering that approximately sixty-four percent of women do not report their sexual assault experiences to the police. (11) Rape culture also impacts the likelihood that sexual assault will be criminally prosecuted. For example, Kerstetter and Van Winkle found that women who were raped by a stranger were less likely to pursue criminal charges if they violated one or more traditional sex role norms (e.g., the woman had been in a bar alone, she had invited the man to her home) as compared to if they did not. (12) Justice is further precluded by the fact that prosecutors are more likely to perceive cases as "winnable" when evidentiary characteristics of the assault conform to narrow definitions of real rape; for example, electing to prosecute cases in which women were subdued by a weapon more often than other cases. (13) Our primary goal, however, is to examine whether rape culture also contributes to low conviction rates in sexual assault cases through its influence on jurors, who play a significant role in administering justice in sexual assault cases. (14) Kalven and Zeisel's classic study of jury decision making revealed that juries were four times more likely to convict when sexual assault cases involved aggravating factors such as stranger assailants, multiple assailants, or violence as compared to when they did not. (15) Further, judges and juries reached the same verdict (guilty) in eighty-eight percent of cases with aggravating factors but only agreed on a guilty verdict in forty percent of other sexual assault cases. (16) Disagreement was explained primarily by the fact that, in cases in which women could be perceived as contributing to their victimization, judges found sufficient evidence of guilt to convict the defendant but juries did not. …

"Don't Talk to Me about Deception": The Necessary Erosion of the Trans-Panic Defense

Abstract: I INTRODUCTION A woman sits on a stage and tells a talk show host that a man who has "liked" many of her pictures on Instagram has wanted to meet her for a month, but it had not yet happened because they live in different parts of the country He called the talk show in order to facilitate their meeting, and she obliged However, she tells the talk show host: "But he don't know my secret" When the host asks her what it is, she replies that she is transgender, to which the audience makes loud "oooooh" noises She says that because she never planned on meeting this man, she had not been taking their interaction seriously, but she would have told him that she was transgender if he had asked her The talk show host brings out her admirer The man comes out onto the stage, greets the host, hugs his crush, and sits down next to her After a brief exchange of hellos, she says, "Well, before we go any further, I need to letchu know something Umm, I haven't really taken it seriously because we've only been talking for a month, and we live so far, I never planned on meetin' you, but I'm lettin' you know, I was born a man" Her admirer asks the host, "Is she serious, Jerry?" Before even receiving an answer, he jumps onto the woman, his arms swinging at her, and the show's security guards spring into action as the audience erupts in cheers, hoots, laughter, and applause They shout, "Jerry! Jerry! Jerry!" The security guards pry the combatants apart and separate them to opposite sides of the stage The chairs have been moved to the back of the stage, out of the way of the fighters "Punk ass bitch!" the woman yells at the man as she is held back by a security guard The host asks the man why he is upset He replies, "It's crazy, cuz yeah, I wanted to meet her, I ain't know she was a man, like, come on I gotta go back to my 'hood, like, it's crazy I got kids! I don't do that!" "Did you, why didn't you ask? You saw the pictures," the host says "Yeah, I seen the pictures, but she looked, she looked like, you know what I mean, a wo-man, but come to find out she a he-she! Like, come on, man, I don't do that I don't do that" The woman interrupts: "Why are you so mad? We didn't sleep together" He yells, "A month! Cuz you deceived me!" After a back-and-forth exchange between the man and the woman about her body and her attractiveness, a sound is heard: Ding! Ding! Ding! It is a boxing bell, presumably encouraging the guests to physically fight each other They lunge at each other The audience continues to react as the security guards try to keep the fighters apart (1) Although The Jerry Springer Show recently vowed to remove "tranny" from its vocabulary, (2) segments featuring a woman who was "born a man" (3) and is there to reveal this to a sexual or romantic partner have been popular on the show This is evidenced by recent show titles such as "Trannies Tell All," (4) "Tranny Bomb!," (5) "Online trans women of color, experience rates of violence much higher than any other population in the United States (12) Although the FBI's Uniform Crime Report does not currently include information on (nonhate) crimes perpetrated against lesbian, gay, bisexual, trans*, or queer (LGBTQ) victims, (13) and most local agencies also do not collect statistical data that include gender identity and/or sexual orientation for crimes that are not considered hate crimes, (14) researchers have uncovered high rates of sexual abuse/assault and relationship violence among transgender people (15) Further, according to the most recently released National Coalition of Anti-Violence Programs' hate violence report, LGBTQ people of color represented fifty-three percent of total reported victims and survivors of all hate crimes in the United States in 2012 and comprised 731% of LGBTQ homicide victims (16) A shocking ninety-eight percent of incidents perpetrated against trans* (17) folk are suffered by those occupying the male-to-female spectrum …

Gender role of incongruence and the adjudication of criminal responsibility.

Abstract: The mental health and criminal justice systems are two of the major control mechanisms in American society that often function together through related and interdependent structures to identify and control deviant behavior. Both systems employ coercive control. In addition, regardless of the specific form of the deviance, these control institutions also use informal social control to reinforce role behaviors appropriate to the individual's age, sex, race/ethnicity, and other social statuses. This paper investigates the effects of gender and gender role incongruence on the determination of criminal responsibility. Data for this study came from the Insanity Defense Reform Project, a National Institute of Mental Health-funded study of eight states. The sample for this study consists of 4842 cases in which insanity was raised as a defense. Consistent with earlier studies, women are more likely to be found not guilty by reason of insanity (NGRI) than men, but the odds of being found NGRI are moderated by the defendant's sex and relationship to the victim. Consistent with hypotheses of the effects of gender role incongruence, women whose victims are their own children or other family members (not including spouse victims) have the greatest odds of being found NGRI of any group. However, women whose victims are spouses have similar odds of being found NGRI as those of men whose spouses are the victims. Thus, the theory was only partially supported, suggesting that how and the degree to which courtroom personnel rely on common stereotypes and gender expectations in decision making is complicated and may reflect a weighing of factors related to blameworthiness and dangerousness--both physical and symbolic. I. INTRODUCTION The insanity defense has a long history in English and American jurisprudence reflecting a longstanding belief that those who have little ability to understand the consequences of an act, or know that their behavior is wrong, should not be held criminally responsible for their actions. (1) Yet the American public is often incensed when persons who commit particularly heinous crimes are found Not Guilty by Reason of Insanity (NGRI). (2) In high profile cases there appears to be a public discourse weighing the defendant's blameworthiness against his or her threat to society, which is fueled by the media's misrepresentation of the connection between mental illness and violence. (3) The insanity defense has drawn enormous attention over the years, disproportionate to the frequency of its use. (4) In reality, the insanity defense is invoked in less than one percent of all felony trials and only twenty-six percent of those pleas result in an NGRI verdict. (5) Even though the actual numbers are quite small, the American public and attorneys alike believe that the defense is invoked frequently and principally in cases involving murder. (6) Despite these perceptions, most cases that involve an insanity plea are not for murder charges (7) and are cases in which the evidence of mental illness is so overwhelming that the prosecution does not contest the insanity plea. (8) At the heart of the defense is the question of mens rea, that is, criminal intent. (9) Most commonly, insanity is substantiated by medical evidence of mental illness. (10) However, the mere presence of a mental illness is insufficient unless it can be demonstrated that the illness was directly related to the state of mind at the time of the offense and of sufficient strength to qualify the defendant as criminally insane. (11) On the other hand, a finding of insanity does not necessarily require evidence of a diagnosable mental disorder. Bizarre behavior, thoughts, emotional states, manner, or speech may also provide evidence for an insanity determination. (12) Evidence of the state of mind at the time of the offense may be presented by expert testimony or lay opinion testimony. (13) Expert testimony is commonly given by a mental health professional based upon hypotheticals or direct observations, including interviews and assessments. …

Crashing into the Unknown: An Examination of Crash-Optimization Algorithms through the Two Lanes of Ethics and Law

Abstract: B. Tort Law When autonomous vehicles cause accidents, the aggrieved parties will likely sue the car manufacturers, operators, or both for their injuries and damage to their property. (272) As control of the major operations of the vehicle transfers from the driver to the autonomous technology, it seems less likely that the traditional driver will be responsible for an accident caused by an autonomous vehicle in autonomous mode. (273) As I have argued elsewhere, and many others have, it is likely that tort liability will be imposed on the manufacturer of an autonomous vehicle for accidents caused by its autonomous technology. (274) This subsection will operate under the assumption that the manufacturer is liable. This subsection analyzes the application of tort law to accidents involving the use of crash-optimization algorithms. (275) When a tortfeasor harms someone intentionally, the tortfeasor is typically sued for an intentional tort. (276) When the tortfeasor acts unintentionally but unreasonably, the remedy for the aggrieved party is in negligence. (277) Special issues arise when a person is injured by a product; when that occurs, the aggrieved party typically sues the manufacturer of the product under theories of products liability. (278) This subsection concludes by examining punitive damages--an overriding concern for all tortfeasors. 1. Intentional Torts Because the decisions made by a crash-optimization algorithm are pre-programmed into the vehicle, those harmed by a crash optimization algorithm may believe they were "targeted." (279) For example, in the Motorcycle Problem, if the vehicle is programmed to hit the motorcyclist with a helmet, a helmeted motorist may believe that the vehicle "intentionally" hit her because of her helmet use. The person who believes she was targeted may seek recourse through an intentional tort action. (280) The distinguishing feature of an intentional tort is intent on the part of the tortfeasor. A tortfeasor has the intent to commit an intentional tort if she (1) desires the consequences of the act or (2) is substantially certain that the consequences will result from the act. (281) The first method of satisfying intent is the common way people think about intent, and it clearly embodies wrongfulness. (282) An example would be when a tortfeasor aims her gun at and shoots a person. The second method of establishing intent is more convoluted. (283) A commonly used example of substantial certainty involves collateral harm (284): A sets up a bomb in B's office for the purpose of killing B, but A also knows that C is in the office and will die too, even though A does not intend to hurt C; nonetheless, A still detonates the bomb. (285) In that example, C's estate could sue A for the intentional tort of battery because A was substantially certain that C would die. (286) A "crafty" plaintiff could assert that the algorithm writer commits the intentional tort of battery in the moral dilemmas from Part III. (287) For example, in the Trolley Problem, the estate of the person killed could assert that the car manufacturer programmed its vehicle with the intent to kill that person, or more likely, that the car manufacturer was substantially certain that its car would kill someone when doing so would result in more lives saved. Under the first method of establishing intent, it seems unlikely that a car manufacturer intended the harm; the programming of the vehicle and the actual accident is too attenuated in time and space to impute intent. Under the substantial certainty test, imposing liability also seems too attenuated. (288) The comments to the Restatement (Third) of Torts state that the substantial certainty test is limited to: [H]arm to a particular victim, or to someone within a small class of potential victims within a localized area. The test loses its persuasiveness when the identity of potential victims becomes vaguer and when, in a related way, the time frame involving the actor's conduct expands and the causal sequence connecting conduct and harm becomes more complex. …

The Measure of Good Lawyering: Evaluating Holistic Defense in Practice

Abstract: I INTRODUCTION It is a weekday morning in a public defender's office located in a downtown office building Defendants and their family members shuffle into the lobby and take seats in plastic chairs to wait for their attorneys Seated behind thick glass, the receptionist juggles the steadily ringing telephone with the paperwork on her desk, looking up occasionally to buzz a visitor through the locked door into the inner office This is business as usual in a traditional public defender's office, underresourced and scrambling to keep up with the constant inflow of new cases In another city, clients of the public defender agency enter a sunlit lobby and are greeted in English and Spanish by a receptionist seated at a circular desk While waiting to meet with their attorneys, clients help themselves to coffee and snacks and read brochures about how to register to vote and have their driving privileges restored At the top of a spiral staircase, attorneys confer with their clients in private offices, pausing occasionally to make notes in their computerized case management system Downstairs, one social worker is screening a client for mental health issues while another works the phones to find a bed for another client at a residential drug treatment facility In a conference room, children from the agency's summer enrichment program are working on an electronics project For this holistic defender office, it is another typical day at work Holistic defense, also known as problem-solving lawyering, community oriented defense, therapeutic defense, holistic advocacy, or integrated service representation, is the most comprehensive statement to date of what defines the effective assistance of counsel for criminal defendants (1) The holistic defense model arose partly in response to widespread criticism of existing systems for delivering defense services to indigent clients, and partly as a component of the larger problem-solving movement taking hold in the criminal justice system over the past two decades The expansion of collateral consequences such as sex offender registration and ineligibility for public housing over the past three decades was another primary motivator for the development of the holistic defense paradigm The holistic model stands in contrast to the traditional model of public defense Steinberg and Feige note that many public defenders are frustrated by the limitations of a traditional representation model that seeks only to satisfy minimal constitutional requirements (1) The holistic defense model asks public defenders to do more for their clients and communities Advocates for holistic defense argue that because it is client-centered, holistic defense humanizes clients and affords them more dignity and respect than a traditional model of criminal defense (3) while protecting defendants from consequences that are often hidden (4) Further, advocates of holistic defense argue that it can reduce incarceration in several ways First, because holistic defense attempts to solve underlying social and environmental problems that may have contributed to a client's involvement in crime, advocates for holistic defense argue that it reduces repeat incarceration (5) Second, because holistic defense increases the focus on consequences that collaterally result from an arrest or conviction, holistic defense can anticipate future events that might lead to a cycle of crime, including both legal and non-legal consequences such as eviction, loss of employment, civil commitment, sex offender registration, and ancillary civil or administrative proceedings (6) Some observers criticize the holistic defense model on normative or theoretical grounds For example, Moore notes possible ethical concerns when a defender weighs a "client's liberty issues" against the "client's best social interests" (7) Moreover, Holland, building on Lee, argues that holistic defense may directly conflict with the attorney's obligation of "zealous advocacy," with a detrimental effect on defenders' ability to obtain the best legal outcomes for their clients …

Criminal Justice System Involvement and Gender Stereotypes: Consequences and Implications for Women's Implicit and Explicit Criminal Identities

Abstract: I. INTRODUCTION In a time of declining incarceration rates, female jail, prison, and probation rates continue to increase. (1) Women currently represent eighteen percent of people under some form of correctional supervision. (2) More specifically, they comprise approximately twenty-five percent of the probation population, fourteen percent of the jail population, twelve percent of parolees, and seven percent of prisoners. (3) Women are less likely than men to serve state prison time for a violent crime, but are more likely than men to serve state prison time for a property or a drug-related crime. (4) Despite these growing rates, women have a low probability of committing crimes, being arrested, and/or being incarcerated relative to men, (5) and this fact is well represented in the memories of society at large, as well as individuals. (6) This expectancy is transmitted via media and daily interactions and has been maintained over time. (7) Further, this expectancy is one explanatory factor of gender stereotypes and has broad implications for the behavioral actions of each gender more generally. (8) Through socialization processes, gender expectancies and social roles have shaped the stereotype that women are not criminals. (9) Instead, women are expected to conform to communal-based behaviors characterized by friendliness, unselfishness, and expressiveness, which are traits that inhibit criminality (e.g., aggression in a homicide). (10) This paper asks: What are the cognitive and behavioral consequences when women violate society's gender norms by committing a crime and participate in a criminal justice system that has been designed for male offenders? (11) We argue that one consequence of gender stereotyping within criminal justice processing and supervision is the divergent effect on women's (but not men's) criminal identity--one identity that is relatively explicit and thus governed by women's self-presentation motivations, and one identity that is relatively implicit and thus operates at a basic cognitive level absent of motivations. II. SOCIAL IDENTITY THEORY AND CRIMINAL IDENTITY Social identity (12) is shaped and maintained by a combination of affective, behavioral, and cognitive variables. Affective factors include a basic human need to belong that leads to developing some level of long-term and significant relationships with others, including groups. (13) The consequence of establishing membership in a group is "ingroup affect," which is the positive feelings associated with a group and is the emotional cornerstone of group identity. (14) Although negative attitudes toward criminals are socially normative because criminality imposes a burden on society, criminals constitute a group that, like other groups, can be a source of ingroup affect. (15) Therefore, it stands to reason that individuals who identify with criminals experience positive feelings of belonging and self-worth because of their group membership. This affective state increases and is maintained due to positive and continuous interactions with criminal peers, an effect evident in many male criminals who report feelings of cohesiveness and belonging. (16) Because social identity defines an individual's self-concept, it places a value on behaviors that enhance, maintain, and protect a group and its membership. (17) As a result, group members are motivated to act in ways that are consistent with a particular identity. (18) Identity-based behaviors therefore have important implications for understanding criminal identity and related acts. First, the onset of criminal behavior is believed to be a function (at least partly) of frequent childhood exposure to criminality in the home and neighborhood, (19) and the continuation of criminal behavior is due to adult experiences with criminal peers. (20) Second, the more individuals spend time thinking about being a criminal and its centrality to their identity, the more readiness they possess to act according to specific terms of the group. …

What Is the State of Empirical Research on Indigent Defense Nationwide? A Brief Overview and Suggestions for Future Research

Abstract: In the United States, the Sixth Amendment provides the basis for the assumption that a person accused of a crime is entitled to legal representation and if he/she does not possess the means to attain an attorney, one will be provided for him/her Unfortunately, the reality is that the right to counsel is not uniformly implemented for indigent defendants, those who cannot afford to hire a private attorney Indigent defendants may not receive the same access and quality of representation as those with the financial means to secure their own defense counsel In some instances, individuals have to be eligible for appointment of counsel Jurisdictions exercise discretion on how and when they provide these legal services to those who are deemed indigent and therefore eligible Often, indigent defense services are underfunded and defense counsel are overburdened Advocates for the right to counsel often lament that there is a crisis in indigent defense in the United States Social science research on the right to counsel provision and indigent defense can play a significant role in ameliorating this crisis In order to understand the role of empirical research in addressing the needs of the indigent defense bar, we first have to understand what research has been done to date, lessons learned from that research, and what remains to be investigated The goal of this paper is to examine the empirical research on the types of indigent defense representation, juvenile indigent defense, and the emerging research on holistic defense Though not an exhaustive list, these areas of research serve as a jumping off point to broaden our understanding of the "state of indigent defense" at the national level After presenting and analyzing the literature, we examine the gaps that currently exist in our knowledge and highlight areas for future research I INTRODUCTION For the past several years, the National Institute of Justice (NIJ) focused its attention and resources on social science research of indigent defense and right to counsel issues The NIJ is the research, development, and evaluation agency of the US Department of Justice and is dedicated to improving knowledge and understanding of crime and justice issues through science One of the guiding principles of the agency is to encourage and support innovative and rigorous research methods that can provide answers to criminal justice issues through empirical research questions as well as practical and applied solutions These same guiding principles are relevant to the field of research on indigent defense The aim of this paper is to examine the empirical research on right to counsel for indigent defendants, those who cannot afford their own attorney We provide an overview of the literature on the types of indigent defense representation (ie, public defenders, private attorneys, or contract attorneys), juvenile waiver of defense counsel, and the emerging research on holistic defense Though not an exhaustive list, these areas of research serve as a jumping off point to broaden our understanding of the research surrounding indigent defense After presenting and analyzing the research literature on these topics, we identify some of the gaps that exist in our knowledge and highlight areas for future research II BRIEF HISTORY OF THE RIGHT TO COUNSEL In the United States, it is almost taken for granted that a person who is accused of a crime will be granted the opportunity to retain legal representation or, if he/she does not possess the means to hire an attorney, to have counsel appointed to him/her More than a century ago, however, this was not the case Although the Sixth Amendment to the US Constitution states that "[i]n all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defense," the amendment was not uniformly implemented throughout the country Even though the federal system provided and paid for indigent defense counsel, for years most states relied on the volunteer or pro bono efforts of lawyers to provide defense for the poor …

The Path to Exoneration

Abstract: I. INTRODUCTION The empirical study of the wrongful conviction of the innocent in America began in earnest with Edwin Borchard's 1932 book, Convicting the Innocent, in which he catalogued sixty-five cases of actual innocence, described their legal causes (eyewitness misidentification, witness perjury, false confessions, police and prosecutorial misconduct, inadequate defense counsel, etc.) and recommended some possible solutions. (1) Following the blueprint created by Borchard, several writers and scholars of wrongful conviction in the next half-century would also aggregate wrongful conviction cases, detail their evidentiary sources, and then recommend criminal justice policy reforms intended to minimize their occurrence. This included Erie Stanley Gardner's The Court of Last Resort (1952) (thirteen cases), (2) Barbara and Jerome Frank's Not Guilty (1957) (thirty-four cases), (3) Edward Radin's The Innocents (1964) (eighty cases), (4) and a chapter by Hugo Bedau in The Death Penalty in America (1964) (seventy-four cases). (5) In 1987, Hugo Bedau and Michael Radelet published the largest compilation of erroneous conviction cases in the pre-DNA era--350 (capital and potentially capital) cases in America from 1900 to 1985. (6) From Borchard to Bedau and Radelet, these works of scholarship and popular writings were not only compelling, but deeply disturbing--if not downright shocking. They detailed case after case in which an innocent person was falsely accused of a serious crime he did not commit, typically murder, and was then wrongly arrested (by police who did not have probable cause, or who had collected or created false or misleading evidence), (7) wrongly prosecuted (by district attorneys based on false and misleading evidence), (8) wrongly convicted (by a jury or judge who mistakenly believed the defendant was, as a matter of fact, guilty beyond a reasonable doubt), and ultimately, wrongly imprisoned--usually for many years if not decades--until his factual innocence was finally exposed, if it ever was. (9) Some may even have been executed. (10) As described and aggregated by the various authors mentioned above, these cases--like an Edward Munch painting--screamed out injustice to anyone willing to listen. They chronicled story after story of repeated criminal justice system failure, narratives made all the more striking by the fact that our legal system, in theory, endows criminal defendants with more constitutional rights and protections to safeguard the innocent and prevent erroneous convictions than any other in the world. These wrongful convictions were triple tragedies: the lives of the factually innocent but wrongly convicted defendants, and their families, were forever damaged, if not destroyed; the true perpetrator(s), if not already incarcerated for another felony or felonies, remained free to perpetrate even more violent crimes; and the original crime victims and their families were left to re-experience the pain of their victimization once the wrongful conviction was exposed and the true perpetrator was finally brought to justice, if/when that even happened. (11) Although many cases of wrongful conviction were documented, aggregated and written about by scholars, journalists, lawyers and others in the era from Borchard to Bedau and Radelet (1987), these cases were either ignored or treated as individual tragedies, no more than one-offs, rather than as illustrative of a criminal justice system that was highly prone to error because of structural truth-seeking flaws. (12) Prior to 1989, virtually all observers assumed that factually erroneous convictions were so rare as to be anomalous, if not freakish, especially in serious felony and capital cases. (13) At the time, the wrongful conviction of the innocent "was never more than a fleeting issue for most criminal justice practitioners, policymakers, the media, and the public." (14) The cases amassed by Borchard, Gardner, Frank, Radin, Bedau, Radelet and many others were almost universally treated as isolated instances by a legal system that was highly resistant to any accusation of factual error in its conviction process. …

Gendering and Racing Wrongful Conviction: Intersectionality, "Normal Crimes," and Women's Experiences of Miscarriage of Justice

Abstract: I INTRODUCTION On the afternoon of Saturday, May 14, 2005, four-year-old Jaquari Dancy died of asphyxiation from "an elastic band that had come loose from a fitted bed sheet" (1) According to the State's case at trial, the boy's mother, twenty-three-year-old Nicole Harris, angered by Jaquari's crying, choked him to death with the elastic band (2) The evidence supporting this argument rested almost entirely on Harris's inconsistent and recanted confession, a confession that resulted from more than twenty-four hours of intermittent questioning immediately following the death of her youngest son (3) Harris, who is African American, was found guilty of first degree murder and sentenced to thirty years in prison (4) She is one of dozens of women who have been exonerated after a wrongful conviction involving the death or injury of a child, (5) with their convictions accomplished through the State's construction of "compelling narratives" (6) that put their motherhood itself on trial As the prosecutor explained to jurors in Harris's case: "She doesn't stand up for her family She's not the mother the defense wants to present to you" (7) The day Jaquari died, Harris and the boy's father, Dancy, had left him and his five-year-old brother Diante alone in the apartment for about forty minutes to go to the laundromat across the street, advising the children to stay indoors (8) When Harris and Dancy returned they found Jaquari outside with some older boys and Diante in the hallway (9) Harris scolded them and they returned to their room, with Jaquari in tears (10) Dancy went to take a nap, (11) having worked a double shift the night before (12) Harris left again for the laundromat to finish drying the family's clothes (13) As she returned home, she encountered Dancy with a lifeless Jaquari in his arms and together "[t]hey rushed off in search of a hospital" (14) Jaquari was pronounced dead shortly after arriving (15) Harris first encountered police investigators while grieving in the hospital chapel (16) and was escorted to the police station for questioning shortly thereafter (17) She and her son Diante were taken to what court documents would later refer to as the "quiet room" (18) Painted yellow with butterflies and ladybugs on the wall, it was "a sensitive room used mainly for victims of sexual assaults" (19)--a gendered space signaling comfort for the traumatized, one of many such rooms that have emerged in police stations throughout the United States in an effort to improve police responses to violence against women (20) This was a ruse in Harris's case Without Mirandizing her, detectives questioned her for about half an hour with Diante in her lap (21) They then returned to her apartment to investigate and around midnight a child protective services worker came to take Diante to his grandmother's house (22) When law enforcement returned, now in the early morning hours of Sunday, May (15), they told Harris that her neighbors reported having seen her hit her boys with a belt that day (23) Now, not only had she left the children unattended to take care of other domestic responsibilities, but she was believed to have used corporal punishment against them Officers drew from contemporary cultural understandings of appropriate maternal behavior--what sociologist Sharon Hays has dubbed the ideology of "intensive mothering" (24)--and Harris, like many mothers struggling to make ends meet, (25) failed their test As psychologists Michelle Fine and Lois Weis explain: "[W]hat passes for good mothering, happens in a particular context; a context of money, time, and excess [I]n the absence of these, it is far too easy to 'discover' bad mothering" (26) For Nicole Harris, this meant becoming the prime suspect in what police and prosecutors erroneously decided was a homicide According to the State's version of events, after fifteen minutes of questioning, Harris spontaneously confessed that she had strangled Jaquari with a phone cord and then used the fitted bed sheet band to make it look like an accident …

A Constitutional Theory of Imperative Participation: Delegated Rulemaking, Citizens' Participation and the Separation of Powers Doctrine

Abstract: b. Rules Delegating statutes empower the executive to make rules and limits this power at the same time. (266) Rules are both prospective and general--and thus quite similar to democratic laws. (267) However, laws are only limited by the Constitution, while rules are also limited by laws. A rule is defined by 5 U.S.C. [section] 551(4) (268) as "the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy." (269) This definition requires differentiation between rules from laws on the one hand, and from orders and adjudications--which are defined in 5 U.S.C. [section] 551--on the other hand. (270) The first differentiation between laws and rules is connected to the acting institution. Only Congress can enact laws. (271) Thus, every other act that is reminiscent of a law, but not enacted by Congress, cannot be a law but must be something else. Where an agency acts, it will be called a rule. (272) But the acting institution is not the only difference, only the most obvious. As 5 U.S.C. [section] 551(4) further states, rules need to be designed in a certain way, which is to "implement, interpret, or prescribe law." (273) Thus, a rule is in itself bound by law, depends upon the law, and is restricted to the confines set by the delegating law. (274) It can be described as being at a tertiary level, subordinate to the Constitution and the delegating statute. One final distinction concerns its binding effect: laws and rules are binding, except for so-called interpretative rules, which interpret other rules and offer ways and means to fulfill the binding rules. (275) But apart from that, a rule and a law share the same features in principle: they are both of general applicability (and thus concern everybody) and are of future effect (and thus prospective). (276) Famous examples of agency rules are the 1971 EPA National Ambient Air Quality Standards, which establishes six common classes of pollutants, (277) or the SEC Rule 10b-5, which prohibits insider trading. (278) Future effects and general applicability are the main differentiating factors with regard to orders, adjudications, and rules. According to the well-known and nearly century-old Londoner/BiMetallic distinction, (279) which has been maintained by the Administrative Procedure Act ("APA"), disputes involving parties that are particular and identifiable are handled via adjudicative acts, which are based on the rule of law. (280) Such disputes can be called "bipolar" (281) and involve a "relatively circumscribed resolution of discrete claims involving identifiable firms or individuals." (282) In contrast, rules are "polycentric" (283) and involve "relatively open-ended policymaking potentially affecting and involving trade-offs among broad social groups." (284) Thus, the number of people affected differentiates between whether a certain act is a rule or an adjudicative act. Adding a time frame to that definition can further help in differentiating the two: (285) adjudicative acts are retrospective while rules--like laws--are generally prospective. (286) c. The Democratic Nature of Rulemaking in the Administrative State The democratic character of the executive branch became far more important owing to the rise of the administrative state. The differentiation between quasi-legislative (and therefore democratic) rules and quasi-judicial adjudicative orders, as well as the rise of the former in recent decades, is the consequence of an epic shift in administrative law not just in the United States, but worldwide. (287) This development is owed to the ascent of the administrative state in the 1930s in the United States. (288) The administrative state is first and foremost a regulatory state--a state that moves from a world with bipolar relations to a world with polycentric relations. (289) "[A]gencies shifted, often in accordance with congressional mandates, from case-by-case adjudication to rulemaking as a more efficient, explicitly legislative procedure for implementing the new, far-reaching regulatory programs. …

My Religion, My Rules: Examining the Impact of RFRA Laws on Individual Rights

Abstract: INTRODUCTION The seventy-ninth volume of the Albany Law Review hosted its annual fall symposium on October 22, 2015 at Albany Law School. Each year the journal continues its proud and honored tradition of hosting symposia on emerging legal issues to highlight their impact on society. (1) This year's symposium brought scholars and practitioners together from across the country to Albany to discuss the complex, controversial, and contemporary issues surrounding religious freedom. The symposium, entitled: My Religion, My Rules: Examining the Impact of RFRA Laws on Individual Rights, featured a panel discussion that provided an overview of current federal and state legislation that either permits or prohibits religious activities (focusing primarily on the federal Religious Freedom Restoration Act, the law at issue in the Supreme Court's controversial Hobby Lobby decision in 2014). Additionally, the discussion highlighted the role of religion in today's society and whether it should be protected or diminished. MODERATOR This year we were honored to have Professor Vincent Bonventre as the moderator of the panel. Currently, Professor Bonventre is a Professor of Law at Albany Law School where he teaches courses in criminal, constitutional, and international law. He earned his B.S. from Union College, and a J.D. from Brooklyn Law School. Subsequently, Professor Bonventre earned his M.A.P.A. and Ph.D. from the University of Virginia. In the interim, he returned to the Army and did criminal work with the Judge Advocate General's Corps. Following his work with JAG Corps, Professor Bonventre clerked for two judges of the New York State Court of Appeals. Between those clerkships, he served as a Supreme Court Judicial Fellow, having been selected by Chief Justice Warren Burger. After his clerkships, Professor Bonventre began his career in academia at Albany Law School. PANELISTS Louise Melling is a Deputy Legal Director at the ACLU and the Director of its Center for Liberty, which involves the ACLU's work on women's rights; reproductive freedom; lesbian, gay, bisexual and transgender rights; and freedom of religion and belief. In this role, she leads the work of the ACLU to address the intersection of religious freedom and equal treatment, among other issues. Prior to her role as Deputy Legal Director, Ms. Melling was Director of the ACLU's Reproductive Freedom Project, which oversaw nationwide litigation, public education campaigns, as well as advocacy efforts in the state legislatures. Ms. Melling has been with the ACLU since 1992, serving in several roles before her role as Director of the Reproductive Freedom Project in 2003, and most recently, Deputy Legal Director. She is a 1987 graduate of Yale Law School. Roderick Hills, Jr. is the William T. Comfort, III Professor of Law at New York University School of Law. He teaches and writes about public law, focusing on the law governing the division of powers between central and subcentral governments; which encompasses areas such as constitutional law, education law, land use regulation, jurisdiction and conflicts of law, education law, and local government law. Professor Hills has been a cooperating council with the ACLU of Michigan, while he filed several amicus briefs in the U.S. Supreme Court. Professor Hills holds bachelor's and law degrees from Yale University. He served as a law clerk for the Hon. Patrick Higginbotham of the U.S. Court of Appeals for the Fifth Circuit, and previously taught at the University of Michigan Law School. Dr. Mark Modak-Truran is the J. Will Young Professor of Law at Mississippi College School of Law. He previously served as the 2014-15 Research Fellow at the Center of Theological Inquiry (Princeton, NJ) for the Center's Inquiry on Law and Religious Freedom. Dr. Modak-Truran received his M.A. and Ph.D. in Religious Ethics from The University of Chicago and his J.D. from Northwestern University School of Law. …

An Elastic Amendment: Justice Stephen G. Breyer's Fluid Conceptions of Freedom of Speech

Abstract: III. CONNECTING THE DOTS: DISCERNING TRENDS AND PATTERNS WITHIN JUSTICE BREYER'S FREEDOM OF SPEECH JURISPRUDENCE The preceding section reviewed some of the most challenging, controversial, and divisive freedom of speech disputes to come before the Court during Justice Breyer's tenure on the bench. While it is impossible to gain a perfect picture of any jurist's jurisprudence within twenty-seven cases, the decisions examined here provide at least a representative sampling of Breyer's voting and writing within this area of the law. This article now moves to a discussion of Breyer's noticeable trends, patterns, and inclinations within these cases, and an evaluation of the significance of these tendencies in the Court's freedom of speech picture as a whole. A. Overall Record In the cases examined here, Breyer voted fourteen times in favor of upholding the government's stated interests in restricting speech. (629) He voted twelve times in favor of upholding the speech at issue over the government's asserted interests in stopping that speech. (630) Lastly, he voted once to not address the speech issue at all, but rather to decide the case on grounds that did not require a judgment on the speech interests versus regulatory interests debate. (631) Of his fourteen votes in which Breyer determined that the regulatory interests outweighed the speech interests in the case at hand, seven of those votes sided with the dissenters in that decision. (632) Four of those votes were concurring opinions. (633) Only three of those votes were with the majority or controlling plurality holding in the case. (634) Of his twelve votes upholding the speech interest over the purported regulatory interests, four were dissents. (635) Four were concurring opinions, (636) and four were with the majority or controlling plurality's opinion in the case. (637) For a justice whom some commentators deem to be clearly "liberal" and whom other commentators deem to be clearly "conservative," (638) this is a surprisingly even voting distribution as to the results in cases where freedom of speech is at issue. This demonstrates that Breyer is no absolutist when it comes to evaluating freedom of speech matters. Certain Supreme Court justices, such as Hugo Black and William O. Douglas, routinely stated that the first words of the First Amendment--"Congress shall make no law"--indeed restricted Congress from passing legislation limiting the freedoms guaranteed within this amendment, including the freedom of speech, in most circumstances. (639) Some scholars observe a similar trend toward absolutism regarding freedom of speech within the present-day Roberts Court. (640) Yet Breyer, based on this sampling, does not fall into this category, although the fact that half of his "pro-restriction" votes studied here were dissents indicates that some of his fellow justices do indeed take a far more absolutist stance regarding protecting the freedoms of speech and expression. (641) On the other hand, Breyer frequently found situations in which, in his estimation, individual liberties outweighed the government's interests in restricting speech. Therefore, a more nuanced discussion of when Breyer determined that freedom of speech rights outweighed governmental interests is necessary to fully understand this justice's jurisprudence. B. An Outspoken Voice on Free Speech Breyer authored a signed opinion in twenty-two of the twenty-seven cases studied in this article. (642) Eleven of these signed opinions were dissents. (643) Eight were concurring opinions. (644) Only three represented the majority or controlling plurality opinion of the Court. (645) From these numbers, one can reasonably infer that freedom of speech is a topic that Breyer finds particularly important. Assuming that a justice will generally author a signed opinion--particularly a dissent or a concurring opinion--only on those issues about which he or she feels particularly fervent, the fact that Breyer wrote signed opinions in all but five of these twenty-seven cases demonstrates that this is an area in which he holds especially strong views. …

What "Yes Means Yes" Means for New York Schools: The Positive Effects of New York's Efforts to Combat Campus Sexual Assault through Affirmative Consent

Abstract: INTRODUCTION In October 2014, Governor Andrew Cuomo announced a resolution passed by the State University of New York (SUNY) Board of Trustees establishing a comprehensive uniform sexual assault policy for the SUNY system, to be adopted by SUNY-operated schools by December 2014. (1) Less than a year after instituting the SUNY policy, the Governor signed the "Enough is Enough" legislation (2) into law, amending the Education Law to expand the policy and require that all public and private colleges and universities in New York "adopt a set of comprehensive procedures and guidelines" (3) aimed at combatting campus sexual assault. (4) Governor Cuomo's actions came about in the midst of what he described as "an epidemic of sexual violence in this country that is truly disturbing and ... plaguing our college campuses." (5) Epidemic is certainly an appropriate characterization of the current situation these colleges are facing. It is estimated that nearly (20) percent of college women have experienced some form of sexual assault. (6) The issue has garnered a great deal of media and political attention as it has become apparent that many schools are failing to appropriately and meaningfully address the problem of sexual assault. (7) These problems have been as prevalent in New York's public and private institutions as they have across the country. In 2014, the United States Department of Education's Office of Civil Rights ("OCR") released a list of fifty-five schools that were under investigation for violations under Title IX of the Education Amendments of 1972 over their handling of sexual assault allegations made by students. (8) The OCR identified four New York institutions that were under investigation: City University of New York Hunter College, SUNY at Binghamton, which are state-funded institutions, and Hobart and William Smith Colleges, as well as Sarah Lawrence College, which are privately funded. (9) New York's "Enough is Enough" Law was enacted to address the serious institutional difficulties that schools face in handling sexual assault complaints. (10) Beginning on October 5, 2015, all schools in New York are required to amend sexual assault policies by adopting a "Sexual Assault Victims' Bill of Rights," (11) a drug and alcohol amnesty policy, (12) protocols to ensure confidentiality and emphasize a victim's right to make both criminal and disciplinary complaints (13) and annual campus climate assessments. (14) Also included among the reforms are significant training and public awareness requirements. (15) The law substantially followed the policy adopted by the SUNY system nearly a year before. (16) One of the most significant and controversial changes required under the law and the SUNY policy is the requirement that New York schools adopt an "affirmative consent" definition. All New York schools must now define "consent" as follows: "Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant's sex, sexual orientation, gender identity, or gender expression." (17) New York schools are also required to include several guiding principles in codes of conduct: a. Consent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act. b. Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol. c. Consent may be initially given but withdrawn at any time. d. Consent cannot be given when a person is incapacitated, which occurs when an individual lacks the ability to knowingly choose to participate in sexual activity. …

"I Don't like Gays, Okay?": Use of the "Gay Panic" Murder Defense in Modern American Courtrooms; the Ultimate Miscarriage of Justice

Abstract: I. INTRODUCTION When Matthew Shepard, age 21, made a pass at two men in a gay bar, he should have expected to be beaten, pistol-whipped, tied to a fence, and left to die. When Emile Bernard was stabbed, beaten and blinded after coming on to a hitchhiker, his assailant claimed he could not be guilty since the victim was "asking for trouble" by making sexual advances. If Angie Zapata, age 18, hadn't initially "hidden" that she had male anatomy, her attacker would never have bludgeoned her to death with a fire extinguisher. And when a fellow student shot Larry King, age 15, execution-style in front of their teacher and classmates, his actions were understandable because Larry wore dresses and heels, and said "Love you, baby!" to him the day before. These are actual defenses, offered by real defendants, in United States courts of law that have succeeded in mitigating or excusing real crimes, even today.* (1) On November 14, 2009, the body of Puerto Rican teenager George Steven Lopez Mercado was found a few miles outside of his hometown. (2) His arms, legs, and head had been ripped from his body, burned, and dumped on the side of the road. (3) Why? Mercado was openly gay. (4) While news of this brutal attack sent a shockwave through the gay community in Puerto Rico, what was perhaps most disturbing was the response from law enforcement officials working on the case. In a public statement issued by the police department, an investigator explained why Mercado had been killed and sent a warning to the rest of the gay population that "people who lead this type of lifestyle need to be aware that this will happen." (5) Unfortunately, displays of homophobia and ignorance like this one do not exist in isolation; all across the United States, members of law enforcement, members of the public, lawyers, and judges alike engage in this type of harmful behavior every day. (6) Sadly, members of the LGBT community all too often fall victim to this homophobic mindset, and the consequences that result can be devastating. In Washington State, for example, former mayor Pete Brudevold was bashed over the head several times with a beer bottle and a flashlight before his attacker strangled him to death. (7) At trial, however, it was not these heinous acts of violence that captured the jury's attention, but rather the fact that Brudevold may or may not have been a homosexual. (8) No fewer than nine lay witnesses were prepared to come to the defense of Brudevold's killer and testify in court that Brudevold had a "reputation" for homosexuality or that he "displayed" homosexual conduct in the past. (9) Arguing that his actions constituted "justifiable and excusable homicide," the defendant put forth expert testimony that he was chronically "homophobic." (10) Brudevold's alleged attempt to grab the defendant's crotch and kiss him was sufficient, according to the defendant, to send him into an uncontrollable homicidal rage, thereby negating the intent element necessary to convict him of first degree murder. (11) This alleged nonviolent, nonthreatening "homosexual advance" was offered to justify the defendant's actions in brutally taking the life of an innocent man, all based on the alleged sexuality of the deceased. This note turns a critical eye on the availability of the "gay panic" defense (12) in modern American courtrooms--a defense used to mitigate or excuse the killing of another person based on that person's actual or perceived sexual orientation or sexual identity. (13) Part II attempts to illustrate some of the social and cultural influences that have permeated the American criminal justice system, providing the theoretical framework underlying this defense. Part III examines the mechanics and procedural guidelines of the defense and how it is functionally applied to substantive criminal law. Part IV examines the use of the gay panic defense in actual criminal trials, demonstrating the profound impact it has had on the fabric of American case law. …

Death, but is it murder? the role of stereotypes and cultural perceptions in the wrongful convictions of women.

Abstract: I. INTRODUCTION Six days after her three-year-old son died in a house fire, Kristine Bunch was arrested for starting the fire and intentionally killing him. (1) Bunch spent seventeen years in prison after being convicted of murder and arson under the theory she locked the child in a bedroom and lit the room on fire. (2) Tragically, evidence eventually showed there was no arson and Bunch was innocent. (3) After Sabrina Butler spent more than five years on death row in Mississippi, she also was found innocent of killing her son, who actually died from a genetic medical condition. (4) Before she was exonerated in 2008, Audrey Edmunds spent eleven years in prison after the death of a seven-month-old baby in her care. (5) Edmunds's case was one of the first to be reversed based on the arguably questionable science behind shaken baby syndrome, after experts testified that no evidence supported the State's theory that she shook the baby. (6) As with many wrongfully convicted women, these women became suspects because they were mothers or caregivers. Also, like most wrongfully convicted women, these women were traumatized and lost years of their lives over "crimes" which, evidence has shown, did not occur. Consider that sixty-four percent of exonerated women were wrongfully convicted even though no crime had occurred. (7) In contrast, 23.2% of exonerated men were wrongfully convicted for crimes that never happened. (8) That disparity is a clear indication that something different happens in the wrongful convictions of women than when men are wrongfully convicted. The differences between the wrongful convictions of men and the wrongful convictions of women warrant serious study. II. PURPOSE OF THIS ARTICLE This article will highlight characteristics of women who have been wrongfully convicted of harming or killing children, especially when no crime has occurred. The article discusses how stereotypes play a unique role in those wrongful convictions. Specifically, we will examine how stereotypes and the cultural perception of women as nurturers, mothers, and protectors of children likely contribute to the wrongful convictions of women. In Part III, we will provide general information and statistics related to women's wrongful convictions. Part IV will discuss how stereotypes may cause these convictions. In Part V, we will discuss the types of circumstances that lead to women being erroneously charged with and convicted of crimes that never occurred. Part VI will address how stereotypes in no-crime cases make the wrongful convictions of women particularly complex to resolve. In conclusion, the article will promote further study of the wrongful convictions of women and make policy recommendations to reduce those wrongful convictions. III. OVERVIEW AND STATISTICS A. Relevant Definitions Wrongful convictions scholars utilize different terms to refer to and define the terms "exonerations" and "exonerees." For example, Huff and colleagues describe wrongfully convicted individuals as "convicted innocents," and define that term as "people who have been arrested on criminal charges ... who have either pleaded guilty to the charge or have been tried and found guilty; and who, notwithstanding plea or verdict, are in fact innocent." (9) These authors exclude from their focus individuals who were held "for considerable periods of time" but had the charges dropped before trial because they were actually innocent; however, they still consider those individuals "convicted innocents." (10) In contrast, Samuel Gross, editor and cofounder of the National Registry of Exonerations (National Registry), and a leading scholar in the field, defines exoneration as "an official act declaring a defendant not guilty of a crime for which he or she had previously been convicted," thereby making the defendant an "exoneree." (11) Gross considers exonerations to result from four sources: (1) pardons or similar executive actions which freed prisoners based on actual innocence, (2) convictions vacated after new evidence of innocence emerged, (3) acquittals in retrials granted on the basis that the defendant was not involved in the crime, and (4) posthumous acknowledgements that a person was actually innocent. …

Make Them Hear You: Participatory Defense and the Struggle for Criminal Justice Reform

Abstract: I. INTRODUCTION This article introduces participatory defense as a powerful new model for reforming public defense and challenging mass incarceration. Participatory defense amplifies the voices of the key stakeholders--people who face criminal charges, their families, and their communities--in the struggle for system reform. Participatory defense empowers these key stakeholders to transform themselves from recipients of services provided by lawyers and other professionals into change agents who force greater transparency, accountability, and fairness from criminal justice systems. As a grassroots response to the public defense crisis, participatory defense offers new insights and perspectives that are unavailable through reform models described as client-centered, holistic, and community-oriented. (1) To be sure, when those models are supported with adequate resources for implementation, they can dramatically improve the "meet-'em-and-plead-'em" norms that infect many overloaded, underfunded public defense systems. (2) Nevertheless, participatory defense examines justice systems from a different set of perspectives--from the perspectives of the people who are facing charges, their loved ones, and their communities. Part II introduces the principles and goals of the participatory defense movement. Parts III through VI analyze participatory defense from doctrinal, theoretical, and empirical perspectives. Part III connects participatory defense with the crisis-ridden constitutional history of the right to counsel, and with that doctrine's deep roots in the due process right to be heard. Part IV frames participatory defense within a democracy-enhancing theory of criminal justice. This approach emphasizes equality in the generation and administration of the governing law, and pairs effective self-governance with a shrinking carceral state. Part V applies these insights to recent reform litigation and policy advocacy, arguing that reformers should invoke due process and use new evidence of system failure that is exposed by the participatory defense movement. Part VI offers additional ways to obtain that evidence through rights-information and satisfaction-feedback tools. II. PARTICIPATORY DEFENSE: COMMUNITY ORGANIZING FOR REFORM Participatory defense is a powerful community organizing model for people who face criminal charges as well as for their families and their communities. The term was coined by Raj Jayadev, a coauthor of this article, and describes a collective, grassroots effort begun in 2007 to improve public defense and check the spread of mass incarceration. The movement's success has led Jayadev to train defenders and communities around the country on its core principles and strategies, with the goal of embedding the approach into a national, reform-oriented culture. This article aims to spread the message while offering doctrinal, theoretical, and empirical analysis of this new approach to justice reform. The first step of the participatory defense movement is for people who face criminal charges, their families, and their communities to transform themselves from service recipients to change agents. As discussed below in Parts II.A-C, they do so through three forms of mutual support. The first form of support is the family justice hub, where community members guide and coach each other through the stress, confusion, and frustration of confronting criminal charges. The second form of support changes "time served to time saved" as community members help defenders obtain the best possible outcome in specific cases. The third form of support is public protest and celebrations, through which community members expose systemic flaws, force systemic change, and honor transformational successes. These core principles and strategies of participatory defense are an evolution in public defense. They allow people facing charges, their families, and their communities to reciprocate and strengthen efforts of client-centered, holistic, and community-oriented defenders. …

State Supreme Courts and Shared Networking: The Diffusion of Education Policy

Abstract: Studies of state supreme courts recognize the policy-making role of state courts, but often assume the decisions made by each court are independent of all other peer courts. While it is true that courts are independent from each other in the sense that they are not bound by the precedent of their peers, (1) and individual court-level attributes, such as ideology and institutional design, influence decisions and policy, a growing body of literature stresses that political actors, such as legislators, interest groups, and others, are interdependent and make decisions based on the attributes and actions of their peers, as well as individual-level factors. (2) This interconnected framework stresses that interactions between actors are governed not just by individual-level characteristics, but also the similarities and differences of actors. This theoretical approach is incompatible with traditional modeling strategies, which assume observations are independent of each other, and necessitates employing social network analysis that explicitly account for interdependence in statistical models. (3) In this study, we extend both the interdependent assumptions of social network analysis and the policy diffusion literatures to state supreme courts by examining education policy diffusion via court opinions. Importantly, we examine education policy diffusion across three waves from 1974 to 2004, which highlights the changing nature of the state supreme court policy network. I. INTRODUCTION State court decisions play a prominent role in many policy areas. In our federalist system, many policy domains are left predominantly to the states, including such areas as marriage, divorce, and, perhaps most prominently, education. (4) Particularly since San Antonio Independent School District v. Rodriguez, (5) state supreme courts are often the final authority on education finance law. (6) However, while the decisions of state supreme courts are final within their jurisdictions, state high courts often look to the decisions of other courts for guidance. (7) Education finance reform is a matter of policy, and while scholars have long recognized the diffusion of policy between state legislatures, no study has, as of yet, studied the diffusion of policy change through the use of state supreme court citations as a diffusion mechanism. Traditionally, the literature on state courts holds that judicial decisions are a function of attitudes or policy preferences, constrained by institutional considerations and the separation of powers system inherent in each state. (8) Much of this literature assumes that decisions reached by state courts of last resort are largely independent of other state courts of last resort. (9) Each state court has its own preferences; laws; particular set of institutional constraints; and confronts different governors, publics, and state legislatures in rendering decisions. In addition, legal factors such as precedent within the state, state legislative history, and state constitutional and statutory language also play a role. However, this literature largely assumes that the decisions of one state supreme court are independent of decisions reached by neighboring state supreme courts. (10) We contend that this assumption misses the judicial dialog between state high courts. (11) A small, but growing, literature finds state supreme courts often turn to each other for citations. This literature contends that state supreme courts look to their peers or other courts for guidance, particularly when dealing with a new area of case law. (12) Specifically, state supreme courts tend to cite their peers that are more professional and have specialized case law. (13) Thus, if a court is deciding a securities case, they may turn to the New York Court of Appeals since that court has developed an extensive specialized case law in that area. (14) While this literature is informative to the present study, it does not speak to the diffusion of policy, only the presence of citations. …

We're All in This Together: A Global Comparison on Domestic Violence and the Means Necessary to Combat It

Abstract: I. INTRODUCTION "There is one universal truth, applicable to all countries, cultures and communities: violence against women is never acceptable, never excusable, never tolerable." (1) Statistics show that more than one in three women around the globe are victims of domestic violence. (2) Different cultural and socio-economic factors explain how and why domestic violence is perpetuated, perpetrated, and how it affects women globally. Regardless of differing approaches to combat it, statistics demonstrate that women from continent to continent experience similar rates of violence irrespective of social class, race, or religion. (3) This note will discuss the differing roles that governments play in perpetuating domestic violence. Specifically, how absence of legislation, insufficient legislation, and failure to enforce existing legislation results in victims being left unprotected at the hands of their government. This note will analyze and compare three specific and diverse countries: the United States, the Russian Federation, and the Arabic Republic of Egypt, by looking at each country's constitution, criminal or penal codes, and international treaties. Finally, this note will discuss how legislation and governmental involvement protects, or fails to protect, victims. While it is recognized that both women and men suffer domestic abuse, this paper will solely refer to women as victims. Section II will analyze domestic violence legislation and enforcement of legislation in the United States. Although the United States has promulgated both federal and state domestic violence legislation, statistics show that American victims are not necessarily better protected in comparison to other woman in other countries. (4) The high rate of domestic violence in the United States is a result of poor enforcement of laws. While there are a myriad of enforcement issues that could be analyzed, this paper will focus on two: Native American women and their access to the justice system, and protection orders and firearms under 18 U.S.C. 922(g)(8). Section III will analyze domestic violence laws and enforcement within the Russian Federation. The Russian Constitution calls for gender equality, (5) and the government is party to the United Nation's Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW"). (6) Nevertheless, Russia struggles to combat a high incidence of domestic violence. This is due to the fact that there is no Russian legislation tailored to prevent domestic violence or to aid victims. (7) Additionally, victims endure seemingly insurmountable burdens when they attempt to access the criminal justice system. (8) Section IV will analyze the current status of domestic violence in the Arab Republic of Egypt. Similarly to Russia, Egypt's Constitution has a gender equality clause, and Egypt is a party to CEDAW. (9) However, the Egyptian government has done little to protect victims with legislation. (10) An explanation of this lies within the entanglement of government and religion in Egypt--along with much of the Middle East. (11) The Egyptian Constitution contains a provision that mandates all legislation conform to Sharia law, (12) and patriarchal interpretations of Sharia law often condone violence against women and promote a male dominated society. (13) The result is a general nationwide ignorance of the seriousness of domestic violence and the knowledge necessary to combat it. Finally, Section V of this note will analyze the procedures that are currently in place to combat domestic violence on a global scale and scrutinize the ways in which they are ineffective, while suggesting avenues that may have a greater impact. These strategies include self-governing preventative measures, the use of punitive sanctions imposed on individuals who commit acts of domestic violence, or countries who allow systematic acts of domestic violence, and finally the use of international criminal courts to prosecute individuals and governments. …

Me and Mr. Jones: A Systems-Based Analysis of a Catastrophic Defense Outcome

Abstract: I. INTRODUCTION Leo S. Jones spent four months in jail, accused of a probation violation when his probation had long since expired. His incarceration was illegal. It was also preventable. In this article, I describe the unique data collection project that identified Mr. Jones's case. Then, I analyze the various individual, institutional, and systemic practices that contributed to Mr. Jones's illegal incarceration. I show how an investigation of Mr. Jones's case led to the discovery of widespread latent errors that may have adversely affected innumerable other detainees. I conclude by explaining what this case reveals about how data collection and analysis can improve public defender practice. II. THE KATRINA-GIDEON INTERVIEW PROJECT In August of 2005, Hurricane Katrina made landfall. The Orleans Parish Prison evacuated thousands of pretrial prisoners to jails across the state. In the weeks and months after the storm, New Orleans police arrested thousands more. With the Orleans Parish Prison still closed, these new arrestees joined the languishing Katrina prisoners in remote parish jails and large state prisons. Meanwhile, the Orleans Indigent Defender Board (OIDB) collapsed, leaving thousands of unrepresented "Katrina prisoners" in jails across the state. (1) By December of 2006, indigent defendants were represented by a newly funded, client-centered public defender's office (Orleans Public Defenders or OPD). Yet, by conservative estimates, hundreds of "Katrina prisoners" had had cases pending since before the storm made landfall. Most had never met with an attorney. Most of their new attorneys lacked basic case information, such as charging documents and police reports. With new arrests occurring every day, OPD was unable to address this backlog of criminal cases. In response to this constitutional crisis, OPD, the Tulane Criminal Law Clinic (the Clinic), and the Student Hurricane Network (SHN) launched the Katrina-Gideon Interview Project (KGIP), an ambitious defender-assistance project. KGIP's primary goal was to interview the pre-Katrina prisoners and to create case files for their assigned public defenders. Secondarily, KGIP sought to assess the legal needs of post-Katrina arrestees who had spent an extended period in jail without counsel or court appearance. A. Criminal Justice Stakeholders as Wary "Limited Partners" KGIP's viability depended upon two key factors that were beyond OPD's control. First, students needed access to defendants. That access depended on the willingness of the jailers--the Sheriff and the Department of Corrections--to allow hundreds of students to enter the jail to conduct dozens of inmate interviews over a four week period. Second, students needed information about the defendants. Since the old public defender's office lacked any practice of creating and keeping case files, OPD and KGIP were unable to assemble even rudimentary facsimiles of files. (2) KGIP lacked the resources to locate and print publicly available docket information. KGIP was unable to pay for police reports ($25 each) and had no access to any discovery that might have been provided before Katrina. Cooperation with the district attorney's office and the local bar would be essential to KGIP's construction of meaningful case files. However, KGIP's interests were not entirely aligned with those of other criminal justice stakeholders. OPD had a different set of priorities than the district attorney, the Orleans Parish Criminal Sheriffs Office (the Sheriff) and the Department of Corrections (DOC). And, as the project's director, I had a particularly challenging relationship with some of these stakeholders. I had been a vocal critic of the district attorney's office and had sued the sheriffs office over its failure to comply with judicial orders for prisoner release. I was on better terms with the Department of Corrections--DOC administrators and staff had been extraordinarily helpful in locating "lost" prisoners and identifying prisoners who were detained past the expiration of their sentences. …

The Trials of Indigent Defense: Type of Counsel and Case Outcomes in Felony Jury Trials

Abstract: Previous research shows that clients of public defenders are not necessarily more likely to be convicted than those who hire private attorneys, but this work largely reflects cases adjudicated through plea bargains. Little attention has been devoted to how the context of a trial shapes outcomes across defendants with private and public defense counsel. In this article, I outline how disparities in resources and differences in courtroom roles may put public defenders at a distinct disadvantage in cases adjudicated through trial, leading to higher rates of trial conviction among indigent defendants. Then, I explore this using data from a National Center for State Courts (NCSC) study of 314 felony jury trials in four urban jurisdictions. The data include both the jury's verdict as well as the judge's evaluation of the defendant's guilt, which permit comparison of jury verdicts with probable bench verdicts. I find that judges' evaluations of defendant guilt do not differ across type of counsel, but defendants who rely on public defenders about twice as likely to be convicted by the jury compared to those who hire private attorneys. And, among defendants who would have been convicted by the judge, those who have a private attorney are nearly 2.7 times as likely to be acquitted by the jury. These disparities are not explained by differences in case characteristics, amount of evidence presented at trial, or evaluations of attorney skill. I conclude by urging further research to examine the mechanisms through which indigent defendants may be disadvantaged in jury trials. I. INTRODUCTION The popular view of indigent defense is one of overworked and underfunded public defenders who put their clients at an extreme disadvantage in the context of trial. In a well-publicized lawsuit, the New York Civil Liberties Union recently argued that New York's indigent defense system fails to provide adequate representation, particularly at critical stages of the criminal process. (1) Stories about individual defendants, such as Terrance Miller, also offer vivid depictions of shortcomings of indigent defense at trial. Miller, who was facing drug charges in New Jersey, met his public defender for the first time outside of the courtroom just forty-five minutes before his trial. Due to case overload and rapidly shifting court schedules, the public defender had no chance to conduct an investigation or prepare for what Miller might say on the witness stand. Not surprisingly, Miller was convicted by the jury. (2) Stories like these imply that public defenders' representation of their clients--particularly at trial--may contribute to disproportionate conviction of indigent defendants. (3) However, previous research does not bear out the inadequacy of indigent defense. Empirical studies find that defendants represented by public defenders are not more likely to be convicted than those who retain private counsel. (4) One explanation for this disjuncture is that, despite inadequate resources, the majority of public defenders are dedicated and effective advocates for an extremely large proportion of indigent defendants. (5) An additional possibility is that aggregate statistics on conviction rates obscure inequalities at earlier stages of case processing (6) and across different methods of adjudication. But because about 95% of all felony cases are disposed through plea bargaining, (7) research examining conviction rates within particular jurisdictions is effectively studying guilty pleas. (8) This article extends previous research by examining disparities in trial outcomes. The main goal is to consider whether defendants who are represented by the public defender are disadvantaged at trial. Building from classic sociological research on lower courts, as well as studies of jury decision making, I outline how courtroom roles and the structure of indigent defense restrict public defenders' ability to prepare for trial, aggressively counter the prosecution, and persuade the jury. …

When One's Right to Marry Makes Others "Unmerry"

Abstract: The Supreme Court's ruling in Obergefell v. Hodges recognized the constitutional right of same-sex couples to marry in all fifty states. The Court premised its ruling on the understanding that a person's ability to marry another person of his or her choosing is one of the most fundamental liberties protected by the Constitution. Some regard the Court's ruling in Obergefell as the end of a long fight for the liberation of the institution of marriage from the shackles of tradition. Yet others, who oppose same-sex marriage for religious reasons, regard it as another ultra-liberal intervention by the state--one which further weakens their ability to exercise their values and beliefs. The Court's decision, therefore, may be regarded as a contemporary peak in a seemingly endless, centuries-long clash between liberal states and diverse cultures and religions characterized by illiberal norms. Critics argue that it sharpens a perceived conflict between the constitutional rights of human liberty and freedom of religion. In contrast, this essay suggests that Obergefell should be seen as a step toward reconciling this ongoing tension. By pointing to the implicit consensus reached by all Supreme Court Justices, this essay argues that Obergefell manifests the state's pluralistic obligation to ensure a diverse society. This obligation maintains a balance between the goals of ensuring equal rights of all citizens and recognizing the limited ability of religious communities to reject liberal norms while preserving their social legitimacy. I. INTRODUCTION In Obergefell v. Hodges, (1) the United States Supreme Court recognized the constitutional right of same-sex couples to marry in all fifty states. (2) The Court held that a person's ability to marry a person of his or her choice is a fundamental liberty guaranteed by the Due Process and Equal Protection Clauses of the Fourteenth Amendment. (3) Viewing marriage as a fundamental liberty, the state must accord it respect. (4) The Court's decision in Obergefell garnered widespread public acclaim. (5) President Obama said the decision "will strengthen all of our communities by offering to all loving same-sex couples the dignity of marriage across this great land." (6) Nevertheless, while some view Obergefell as the end of a long journey to liberate the institution of marriage from the shackles of tradition, those who oppose same-sex marriage for religious reasons regard it as another ultra-liberal intervention by the state--one which further weakens their ability to exercise their values and beliefs. (7) Opponents worry that recognition of same-sex marriage as a constitutional right will require religious (or other cultural) communities, which oppose same-sex marriage or homosexuality in general, to embrace the practice and absorb it into their internal community norms. (8) This concern is not hypothetical or far--fetched the Court's decision could have genuine ramifications for religious communities. For example, would churches be forced to perform same-sex marriage ceremonies or face prosecution or lawsuits alleging discrimination? (9) Would religious schools be able to forbid same-sex relationships or marriages and retain their tax-exempt status? (10) Would religious businesses owners in the wedding industry--such as bakers, photographers, and florists--be sanctioned for refusing to host or serve same-sex couples? (11) And what would be the implication of the expansion of gay rights for the ability of various communities to realize their shared conception of the good? Religious communities across the United States have raised these concerns, (12) as did the dissenting justices in Obergefell, (13) However, the Court in its majority opinion gave no defining answer, which leaves the decision's implications for America's social fabric highly uncertain. Obergefell therefore may be regarded as a case that emphasizes the tension between liberal states and illiberal communities. …

Identity and Narrative: Turning Oppression Into Client Empowerment in Social Security Disability Cases.

Abstract: Social Security disability law and practice is disabling. The common understanding is that successful claims require fitting a case and a client's story into a master narrative that embraces stereotypic victimization and helplessness, and requires disclosure of embarrassing details of disability as the individual's defining identity. (1) Subjecting oneself to the system as it is presently practiced is often at odds with disabled individuals' instincts, desires, and mental well-being, and is at odds with the goals of lawyers who seek to empower clients through their advocacy. (2) It re-victimizes and stigmatizes the clients we seek to benefit. Serious criticisms have been leveled at anti-poverty lawyers who routinize the practice of law on behalf of individuals seeking Social Security disability benefits. (3) And serious criticism of the medically-based construct of Social Security disability has grown out of the disability rights movement, so much so that many disability rights scholars reject the basic premises of the program. (4) While this paper acknowledges the bases of those criticisms, it argues that because of the economic importance of the Social Security programs to the disabled, client-centered advocates who strive to empower communities should not abandon the practice of Social Security disability law. Rather, this paper encourages anti-poverty lawyers to focus on client narratives and to reframe their practice, thus helping, as Laura Rovner urges, the nation re-learn and re-understand disability. (5) I begin with a review of the disabling meta-narrative that infuses Social Security proceedings. The legal standard for disability requires persons with a disability to present as the sum of their impairments and to profess that they cannot function in the workplace. (6) As practitioners struggle to present cases that conform to the legal standards without questioning the frame of those standards, they disable and disempower their clients, and push their clients to present their narratives in a disabling and disempowering manner. I then discuss the possibilities for framing these issues differently, by referencing the disability rights movement and human rights norms. The paper concludes with suggestions for practitioners for the reframing of their practice and client narrative that is consistent with principles of client autonomy, attorney-client collaboration, and infused with more empowering client counter narratives that reject or co-opt the disabling master narratives urged by the Social Security system. I. DISABLING NORMS INFUSE SOCIAL SECURITY DISABILITY CASES A. The Standard Social Security Disability Insurance ("SSDI") and Supplemental Security Income ("SSI") cannot be ignored in conversations about the rights of the disabled because they are the largest source of assistance to persons with disabilities in the United States, (7) and more individuals seek and rely on disability benefits to meet their basic needs every day. (8) "People with disabilities overwhelmingly remain poor, and ... [p]overty among people with disabilities is worse in the United States than elsewhere in the developed world." (9) Far from the shift anticipated by some in the disability rights movement from welfare or Social Security Disability Insurance rolls to employment after the Americans with Disability Act ("ADA") was enacted, more people with disabilities receive SSI and SSDI and the employment rolls have not increased for the disabled. (10) SSI and SSDI differ in their conceptualization, history, and funding source. SSDI is an entitlement funded through Federal Insurance Contribution Act ("FICA") taxes under Title II of the Social Security Act (11) that has been available since 1956. (12) SSI is a means-tested welfare benefit (13) created in 1972 as part of the Nixon Administration's attempt to standardize state disability-related welfare payments. (14) By 2012, there were approximately 8. …

Constrained Behavior: Understanding the Entrenchment of Legislative Procedure in American State Constitutional Law

Abstract: Political analysts have suggested that policy power will begin to shift from the federal government to state governments as gridlock in Congress persists. Therefore, understanding the policymaking process at the state level is more important than ever. Vitally missing from our understanding of policymaking in the states is the role of constitutional provisions. Many state constitutions contain directives that severely limit the ability of the legislature to act. Some of these directives are procedural while others are more substantive. This is relevant because constitutional rules are more difficult for members to alter than chamber rules. In this study we present a quantitative measure of constitutional restrictiveness and explore the variation in this measure across the fifty state legislatures and the U.S. Congress. We discover that constitutional restrictiveness is largely explained by the historical era in which the most recent constitution has been passed. I. INTRODUCTION Recent commentaries regarding the implications of persistent Congressional gridlock have suggested that we will see a significant shift in power to the states with regards to solving many of our most significant policy problems. (1) Gaining a better understanding of the politics of the state legislative process should be of increasing interest to us all. Understanding the evolution and development of state legislatures is vital to accomplishing this goal. Scholars have been long fascinated by the evolution and development of legislatures in the United States. This fascination has focused predominately on the development of the United States Congress. Countless books and journal articles have focused on the development of congressional committee systems, (2) political party structures, (3) leadership, (4) and procedural rules. (5) Other works have addressed generally the process of congressional institutionalization. (6) Disproportionately less scholarly attention has been given to the evolution and development of state legislatures. Many of the studies of state legislative evolution and development that do exist were conducted long ago and typically focus on the development of a legislative institution in a single state. (7) More modern explorations of state legislatures have focused on explaining institutional differences across state legislatures, with little attempt to track institutions over time or determine the evolution of these institutional differences. (8) There have been very few historical treatments of state legislatures that are cross-sectional in nature. Notable examples are Squire and Hamm's 101 Chambers: Congress, State Legislatures, and the Future of Legislative Studies (9) and Squire's The Evolution of American Legislatures: Colonies, Territories, and States, 1619-2009. (10) Our purpose in this study is to consider how constitutions impact the ability of legislatures to conduct business and solve policy problems. II. THE PASSAGE OF ABORTION RESTRICTIONS, A TALE OF THREE STATES Knowing that most efforts to lobby for more restrictive abortion policy at the federal level are futile and largely a waste of resources, the pro-life movement has chosen to focus its resources and efforts on the passage of laws at the state level. (11) A report from the Guttmacher Institute states that in just two years (2011-2013), 205 abortion restrictions were enacted in the states versus 189 during the previous ten years (2001-2010). (12) While pro-life advocates naturally will target ideologically conservative states in their efforts to have these laws enacted, they are sometimes enacted with substantial controversy. (13) In the summer of 2013 the legislatures of three states--Texas, Ohio, and North Carolina--passed bills that restrict abortion. (14) Each of these three states enacted these bills in very different ways, which were influenced by state constitutional provisions or lack thereof. …

How Do We "Do Data" in Public Defense?

Abstract: This essay introduces the six articles that follow in this collection and assesses what they say about the contemporary state of research in public defense generally. The history of the present burgeoning of interest in this issue is explained by reference to recent concerns to improve data collection within the defense profession and the novel availability of federal funds to do so. Four functional themes are identified from among the present articles, speaking to the implicit purpose of the work: documenting inequity, evaluating policy options, system monitoring, and pursuing a scientific agenda. This diversity of functions that the research seems to perform speaks to the diversity of the defender research community itself and the uses it has for research and data--a diversity which I conclude is important to recognize and preserve even as we emerge from this formative phase into a time where specific research agendas begin to crystallize. I. INTRODUCTION: A BENIGN CONFLUENCE A watershed moment in how public defenders think about data arrived in the summer of 2012. In late July, the Missouri Supreme Court decided that the Missouri State Public Defender (MSPD) had the right to refuse to represent defendants in order to avoid case overload. (1) This ruling, coming after years of protests and reports that the system was badly underfunded, (2) was a historic win, purportedly allowing MSPD to regulate its own workload and assure quality representation. This changed rapidly in October when the state auditor (himself a Harvard-educated lawyer) (3) issued a report declaring not only that the caseload limits MSPD had set for itself lacked any "support or basis," but also that since "MSPD does not track staff time spent by case type, ... MSPD lacks detailed information to estimate staff hours per caseload," and that the agency was therefore "unable to accurately determine the resources needed to manage caseloads." (4) The Missouri Association of Prosecuting Attorneys announced MSPD's "unsupported claim of a 'constitutional caseload crisis'" was "a myth that has been manufactured by misleading caseload statistics." (5) The auditor's conclusions seriously undermined MSPD's ability to advocate for more resources in the state budget--resources which it nevertheless claimed were badly needed. MSPD quickly recognized that its response to the auditor's report had to be the immediate requirement that all of its lawyers track all time spent on each case. Working with the American Bar Association (ABA) and RubinBrown, an accounting and professional consulting firm, a report was produced in June 2014 that immediately represented one of the most sophisticated, data-driven analyses of defender workloads to date. (6) Moreover, it validated MSPD's original position that it was badly overloaded and in serious need of additional resources. Based on the RubinBrown report, the Missouri legislature passed the largest increase in MSPD's budget in fifteen years, (7) and when the governor vetoed that bill (and many others), the legislature overrode his veto. (8) The point that these funds were badly needed had been made. The Missouri situation made several things clear to defenders across the nation. On the one hand, the broad message seemed to be that we were entering into a new era in which valid, persuasive data and analysis were increasingly going to be expected or required of defenders if they hoped to compete in policy and budget arenas. More narrowly, though perhaps more profoundly, there was also an implication that the data and numerical standards that defenders had relied on for a generation or more would not hold up if subjected to close scrutiny. (9) The entire episode opened a question few had really thought about much before: Do the data and analysis we have really allow us to understand and defend what we do, or are they just not good enough? Public defenders have always been hungry for data--especially when it comes to budget time--and in some cases they have had it. …

Opting out in the Name of God: Will Lawyers Be Compelled to Handle Same-Sex Divorces?

Abstract: I. Introduction In June 2015 the Supreme Court of the United States determined, by a 5-4 ruling in the case of Obergefell v. Hodges, (1) that same-sex couples have a constitutionally guaranteed right to marry. (2) Soon thereafter, a same-sex couple applied for a marriage license in Rowen County, Kentucky. (3) Kim Davis, the Rowen County clerk refused to issue the license, citing her own religious beliefs. (4) The couple brought suit against Ms. Davis, and she was ordered by a federal district judge to issue the license. (5) When she refused, she was held in contempt, and jailed for five days. (6) Ultimately U.S. District Judge David Bunning ordered Ms. Davis' deputies to issue the license in her stead. (7) Ms. Davis' actions brought her a great deal of notoriety. (8) Some of the publicity was positive with her actions being characterized "heroic," while others considered her to be a "homophobe," or a "Hitler." (9) While certainly dramatic, Ms. Davis' case was not the first time in recent history that courts or administrative bodies have imposed sanctions against citizens or private business operators who declined to provide goods or services to same-sex couples. (10) In 2013, the Supreme Court of New Mexico considered a matter involving a photographer who had declined to photograph the commitment ceremony of one woman to another. (11) The photographer, Elaine Huguenin, indicated that she was "personally opposed to same-sex marriage and will not photograph any image or event that violates her religious beliefs." (12) The customers filed a discrimination complaint against the photographer with the New Mexico Human Rights Commission. (13) They alleged that the photographer had engaged in discrimination that violated the provisions of the New Mexico Human Rights Act. (14) The Act precludes discrimination by public accommodations on the basis of sexual orientation. (15) The New Mexico Human Rights Commission ruled against the photographer. (16) The photographer appealed, asserting that her constitutionally-protected First Amendment rights to the free exercise of her religion and expression allowed her to decline to participate in the event. (17) A state district judge granted the customer's motion for summary judgment. (18) The New Mexico Court of Appeals affirmed the ruling against the photographer and in favor of her customers, as did the Supreme Court of New Mexico. (19) Also in 2015, the Bureau of Labor and industries of the State of Oregon considered a case involving a baker who declined to make a wedding cake for a same-sex couple. (20) The Commissioner determined that the bakery owners had violated the Oregon statute prohibiting discrimination in public accommodations on the basis of sexual orientation. (21) In addition, the Commissioner awarded money damages to the complainants in the total sum of $135,000, signifying compensatory damages for emotional, mental, and physical suffering resulting from the denial of service. (22) These are but a few of the cases which have been brought against public officials and private individuals who have declined to provide services in the manner described so far. (23) Undoubtedly, more will follow. As Chief Justice Roberts notes in his dissenting opinion in the Obergefell case: Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage--when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. There is little doubt that these and similar questions will soon be before this Court. (24) The cases which have arisen so far, and the observations by Chief Justice Roberts, raise an important issue for lawyers. …

Social Norms as a Substitute for Law

Abstract: This paper follows the law and norms literature in arguing that policymakers can use social norms to support or even replace regulation. Key to the approach offered here is the idea--borrowed from the folk theorem in game theory--that cooperative order can arise in circumstances where parties repeatedly interact. This paper proposes that repeated interaction between the same agents, specifically the intensity of these interactions, may be used as a yardstick with which to gauge the potential to scale back regulation and use social norms as a substitute for law. Where there are very high levels of repeated interaction between people, policymakers can reduce regulation and then evaluate the emergent social order on a case-by-case basis. The contribution of the paper to the law and norms literature is that it proposes a practical technique to pinpoint the precise areas of social discourse where the possibility of using social norms as a substitute for law is most feasible--and perhaps even more crucially, it highlights precisely where it is not. INTRODUCTION There is a war of ideology between those who support an expansive role for government and those who wish to shrink it. Advocates of state minimalism--those who wish to shrink it--often speak about the ability of market forces to sustain social order and the normative benefits in doing so. (1) In this sense, the market is put forward as an alternative to government. This can be thought of as market-based minimalism. There is a vast literature (much of it heterodox) arguing that the functions of government may be provided by "the private sector" and the "market." (2) These theorists often adopt a fiercely ideological, strident tone in their condemnation of the state--rhetoric that can be quite off-putting. While these voices often downplay or simply discount the necessity of regulation, (3) this does not, however, imply that there are no benefits to be had from reducing the intensity of legislation where possible. A crucial fact that must be understood is that the law is already minimalist: it does not seek to regulate every facet of human activity, nor could it. There exists a vast ocean of informal social ordering that goes unregulated by the state. (4) This paper argues that we may go further in the direction of legal minimalism, (5) and that, crucially, market-based minimalism is not the only game in town we can use to achieve this. It is possible to embrace an entirely different notion of minimalism, one that involves other kinds of "invisible hand" self-ordering. This broader vision is captured by the law and norms literature, which examines law's relationship with social norms. (6) Social ordering born from social norms is all around us, from the spontaneously self-assigned seating arrangements of students in a classroom, to the social rules of lining up, or the complex customary law of prepolitical societies. (7) Prominent legal theorists such as Robert Ellickson, Robert Cooter, Dan Kahan, Lawrence Lessig, and Cass Sunstein advocate using social norms as efficient alternatives to legal rules. (8) As Richard Posner argues, social norms may be "both a source of law and often a cheap and effective substitute for law ...," (9) Following the law and norms literature, this paper argues that policymakers can harness the energy of social norms in creating and sustaining social order. (10) In contrast to market-based minimalism, we may think of this approach as norm-based minimalism. Norm-based minimalism as envisioned here comprises both strong and weak versions. These versions permit degrees of state intercession: from a total absence of regulation, to the codification of existing social patterns, to minor regulatory adjustments aimed at correcting inefficiencies, to traditional top-down law. (11) In adopting such an approach, policymakers can take advantage of the natural patterning of social norms. There is abundant evidence that social norms can generate complex systems of cooperative order without the need for a centralized coercive authority. …