Showing papers in "Albany law review in 2017"

Restricted Charitable Gifts: Public Benefit, Public Voice

Abstract: Donor restrictions on gifts to charities can raise difficult issues over time, if changes in social or economic circumstances create the need for modifications to those restrictions. Often the analysis of whether to permit a modification focuses on the charity’s interests or the donor’s interests, and ignores the interests of the public. This article brings the public into the discussion, considering where and how the public’s voice can be heard. The article provides an overview of the history of charities law in the United States, with an emphasis on rules related to donor-imposed restrictions. The article explains that a public benefit standard related to charitable assets has existed from the beginnings of charities law, but the standard has often been overlooked and ignored. The article suggests that the public’s voice needs to be heard and considered with respect to charitable assets, and that the courts, as the arbiters of what it means to be charitable, should be able to consider public benefit as well as donor intent.

The Immigrant Paradox: Protecting Immigrants Through Better Mental Health Care.

Abstract: The Immigrant Paradox refers to a phenomenon noted by psychologists and psychiatrists that recently arrived immigrants report lower rates of psychiatric problems and substance abuse disorders than native born Americans. This is in spite of the obvious challenges that come with significant life changes of immigration that present stress and anxiety. Over time, however, immigrants’ mental health outcomes begin to deteriorate to reflect the mental health outcomes of the general population. Major studies of the mental health needs of the immigrant population show that they are underserved and they underutilize mental health care as their needs arise. Untreated mental health issues, both for immigrants and native born Americans are associated with a range of unhealthy outcomes such as substance abuse, and minor criminal behavior. For immigrants, an additional danger is being drawn into the aggressive immigration removal system that has increasingly focused on the types of offenses that might be committed by those with unaddressed mental health needs. This article proposes that better mental health care at the state level, with broader access to health insurance and utilization of culturally sensitive treatment is a way to divert immigrants out of the removal system. This article explores the mental health care needs of immigrants and the barriers they face to access, such as cultural and economic barriers such as a lack of insurance. This piece provides an overview of the evolution of national mental health care system, which operates with significant gaps and deficiencies leading to many with unaddressed needs winding up in prisons and jails. As this increasing overlap has occurred between mental health issues and the criminal justice system, our immigration system has also evolved to increasingly overlap with the criminal justice system by greatly expanding the offenses for which an immigrant can be removed. This evolution in our immigration system reflects longstanding concerns in our nation about being burdened by unworthy, defective and criminally inclined immigrants. Our earliest immigration laws specifically singled out people with mental defects as excludable from the United States. Our modern system of removal serves the same role with its focus on drug and minor criminal offenses. What is needed is a re-framing of the issue to see better access to mental health care as a way to protect public safety and prevent the reification of false and negative stereotypes about immigrants. Given the current tone of the Trump administration narrative that immigrants are a threat to national security, efforts to address this issue are more likely to succeed among the states.

Justice or Injustice: A History and Critique of the New York State Justice Center for the Protection of People with Special Needs

Abstract: I. INTRODUCTION The creation of the New York State Justice Center for the Protection of People with Special Needs ("Justice Center") was announced with great fanfare in 2013. (1) Its goal is laudable: strengthening and standardizing "the safety net for vulnerable persons, adults and children alike, who are receiving care from New York's human service agencies and programs." (2) Its jurisdiction is broad: covering residential and non-residential programs and provider agencies that come within the purview of six state oversight agencies, namely, the Office of Mental Health, the Office for People with Developmental Disabilities, the Office of Alcohol and Substance Abuse Services, the Office of Children and Family Services, the Department of Health, and the State Education Department. (3) Its powers are comprehensive: investigating allegations of abuse, neglect, and significant incidents, and disciplining individuals and agencies pursuant to administrative authority. In addition, it can prosecute crimes of neglect and abuse pursuant to criminal prosecutorial authority. (4) Given that over 270,000 vulnerable children and adults live in residential facilities overseen by the state and that numerous other individuals receive services from "day programs operated, licensed[,] or certified by the state[,]" (5) the creation of the Justice Center is consistent with New York's history of oversight of vulnerable individuals. The state has overseen various state and municipal programs and private organizations that have addressed the needs of vulnerable individuals practically since New York's first poorhouse opened in 1736. (6) The development of that oversight has been a series of responses to perceived deficiencies of an existing system, and the creation of the Justice Center is, much in the same way, a response to a 2011 study commissioned by the Governor to examine the treatment and care of vulnerable adults. (7) The Justice Center's jurisdiction reflects a departure, however, from traditional oversight. (8) State administrative and regulatory review has been carried out by specialized state agencies established during the late nineteenth and twentieth centuries to address specific categories of individuals receiving care and treatment according to their needs. (9) Residential and day treatment programs, as well as their custodians and employees, have been disciplined for abuse and neglect in accordance with state regulations created by these agencies. (10) Criminal prosecutions have also been referred to county district attorneys. (11) The Justice Center unites all specialized agencies, all vulnerable individuals with diverse needs, and all custodians and employees trained to meet those needs under one additional layer of uniform rules and regulations, with potential administrative discipline, civil liability, and criminal prosecution also under the same umbrella. (12) This article explores the history of state oversight in New York and the departure represented by the Justice Center. This article first traces the early history of oversight. (13) It then discusses the role of the Commission on Quality of Care for the Mentally Disabled, an antecedent organization similar to the Justice Center. Next, it examines the Justice Center itself. Last, this article concludes with some reflections on the Center. II. HISTORY Poorhouses were part of New York's landscape from early colonial days as the solution for housing people in poverty who refused to work, were unable to work because of age, illness, addiction, or disability, or were willing but could not find work. (14) By 1824, as a consequence of the Poorhouse Act, (15) people who were elderly, orphaned, had disabilities, or a mental illness were housed together indiscriminately in poorhouses. (16) New York took a significant step toward state oversight of these institutions in 1827 by requiring that local poorhouse officials submit annual reports to the Secretary of State. …

Transitional justice and the legacy of child sexual abuse in the Catholic church

Abstract: In 1998, John Geoghan, a Massachusetts priest, was defrocked— stripped of any rights to perform as an ordained priest—for molesting children.1 Four years later, the Archbishop of Boston, Bernard Law, arguably one of the most influential people in the state, resigned from his position upon revelations that he knew of Geoghan’s actions and yet chose to send him to other parishes where he would still be in an environment with minors.2 In other parishes around and outside the United States, similar scenarios were, and had been, occurring for years: priests using their positions in order to engage in sexual acts with minors.3 When survivors began to speak up, they and their families were often offered “hush money” in order to prevent a scandal.4 Although the sexual abuse crisis came to the forefront in 2002 due to the investigative journalist team at the Boston Globe, reports of the sexual abuse of children by members of the clergy had been

Lethal Rejection: An Empirical Analysis of the Astonishing Plunge in Death Sentences in the United States from Their Post-Furman Peak

Abstract: The authors gathered information on 1665 death-eligible cases nationwide for three years at decade intervals: 1994, 2004, and 2014. In 517 cases death sentences were imposed; in 311 cases sentencers spared the defendants from death sentences, and in 837 cases prosecutors spared defendants from death sentences. The Article proceeds in three Parts. Part I explains the methodology for unearthing relevant data and preparing it for analysis. Part II analyzes declines in death sentences due to decreasing death eligibility, that is, fewer murderers over time meeting the criteria that made death a sentencing option. Four reasons are examined: fewer death-eligible murders, the United States Supreme Court’s exemptions of juveniles who were less than eighteen years of age at the time of the commission of the murder, and persons with intellectual disability (known to the law as the “mentally retarded”); and the abolition of the death penalty in several states. This Part concludes that about half of the decline in death sentences is attributable to decreased death-eligibility, mostly due to the steep decrease in the number of death-eligible murders. Part III examines increasingly narrower perceptions of death-worthiness, that is, the evolution in attitudes among prosecutors and sentencers toward deeming fewer among the many death-eligible defendants worthy of death sentences. This Part requires the most complicated analysis because unlike death-eligibility decisions, which are dictated by law, death-worthiness decisions emerge from an opaque brew of many factors, including, but not limited to, resource differentials among jurisdictions, prosecutorial attitudes, the wishes of the murder victim’s survivors, defense counsel performance, public opinion, and sentencer reactions. But while death-worthiness decisions are often opaque in individual cases, each case generates empirical data from which patterns may be discerned. Part III uses such data to analyze ten questions and arrive at tentative answers: • Did the advent of life-without-parole (hereinafter “LWOP”) reduce death sentences in jurisdictions where it was added as an option? (only in Texas) • Did sentencers become more reluctant to return death sentences? (no) • Were death sentences decreasingly imposed in less aggravated cases and increasingly imposed in more aggravated cases? (to some extent) • Did presentation of greater numbers of mitigating factors conduce to fewer death sentences? (no) • Did robbery during a murder became a less powerful aggravator? (yes) • Did 18-to-20 year-olds benefit from a ripple effect from the exemption of juveniles? (yes) • Did death sentences become less common in multiple perpetrator cases? (yes) • Did low population counties increasingly drop out of death sentencing? (yes) • Did low revenue counties increasingly drop out of death sentencing? (no) and • Did a few traditionally high-volume death sentencing counties skew the figures by cutting back on the use of the death penalty due to local political factors? (yes)

Linde's Legacy: The Triumph of Oregon State Constitutional Law, 1970-2000

Abstract: Beginning in the 1970s, scholars and judges became interested in state constitutional law, arguing that state constitutions had been too long ignored especially in cases involving rights arguments. Empirical studies discovered, however, that actual application of state constitutional law in rights cases was uneven and limited over time, across issue areas, and between courts. This article seeks to deepen our understanding of variations in state constitutional application by exploring how and when litigants in state courts offer state constitutional rights arguments. I argue that it is important to examine the signals sent by state courts and how lawyers respond to those signals. Under the leadership of Justice Hans Linde, the Oregon Supreme Court embraced a powerful expectation that all issues of state law should be settled prior to any federal issue. Litigants responded to this signal by offering state arguments more often and in greater depth than litigants in other states. Linde’s legacy normalized state constitutional law, making it part of the everyday fabric of constitutional litigation in Oregon.

Labor Law Article 6: A Misunderstood Law That Fully Protects All Employees' Wages

Abstract: Wage theft occurs when an employer fails to pay wages or benefits owed.1 It harms low-income employees the most.2 But depriving almost anyone of earned paychecks, commissions, bonuses, or severance pay causes harm.3 For some, the harm is lifealtering,4 but few can afford the cost of a lawsuit for breach of contract.5 And those who can will never be made whole because the plaintiff must pay his own attorney’s fees.6 However, an adequate means of legal redress does exist. New York Labor Law Article 6 (Labor Law sections 190–199-a) embodies “the state’s longstanding policy against the forfeiture of earned but undistributed wages.”7 Some key provisions of Article 6 are Labor Law sections 190, 191, 193 and 198.8