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Should Victims’ Views Influence Prosecutors’ Decisions?
Get PDFThis article seeks to promote a conversation about how prosecutors, particularly in misdemeanor cases with identifiable victims, should take account of what victims want, including what they regard as the just result. The criminal law assumes that victims want retribution, which means incarcerating offenders, and prosecutors’ offices largely accept that premise. We argue that in a process that generally is weighted toward punishment and excessive use of state power, prosecutors should ascertain victims’ actual views and take them into account as a counterweight. That is, when prosecutors would otherwise pursue a misdemeanor prosecution, they should generally defer to victims’ informed and reasoned preferences for nonprosecution and noncarceral resolutions. The article draws on the recent experience of one of the coauthors, a public defender in Prince George’s County, Maryland
Defense Counsel’s Cross Purposes: Prior Conviction Impeachment of Prosecution Witnesses
Get PDFA broad scholarly coalition supports the prohibition or diminution of the impeachment of criminal defendants with their convictions. Yet scholars should pay more attention to the flipside arrangement: impeachment of prosecution witnesses by defense counsel. First, because those engaged in reform efforts need to resolve the competing interests: constitutional arguments on behalf of the defense, but, on the other hand, concerns about a tool that (regardless of the nature of the witness) risks reinforcing biases and stereotypes. Second, because the impossibility of adequate resolution is itself important to note. Whether one considers the conflicting values of rule-makers deciding whether to regulate this, or the conflicting values of defense attorneys deciding whether to deploy it, the intractability underscores the appeal of abolitionist visions
Timeout for Sports Trademark Overprotection: Comparing the United States, European Union, and United Kingdom
Get PDFSy-STEM-Ic Bias: An Exploration of Gender and Race Representation on University Patents
Get PDFPeople of color and women are underrepresented in science, technology, engineering and math (STEM) fields in the United States. Through both intentional and unintentional structural barriers, universities continue to lose valuable intellectual resources by perpetuating a lack of gender, racial, and ethnic diversity as people climb the academic ladder. Identifying racial and gender disparities between university campus populations and their patent representation quantifies the qualitatively observed systemic racism and sexism plaguing STEM. Without data quantifying the underrepresentation of women and people of color, specifically when protecting their intellectual property rights, universities cannot show that their programs designed to close these gaps are, in fact, effective. This article fills that space by offering a quantitative analysis of the patent gap between white, male inventors, inventors of color, and female inventors at Ivy League institutions, historically Black colleges or universities (HBCUs), research institutions, and other highly ranked universities in the United States. By comparing the racial and gender representation on university patents to the representation at the university, the data can conclusively demonstrate that intellectual property underrepresentation is rampant within a seemingly equalizing environment, where every student and faculty member theoretically has equal access to university funding and legal representation to obtain patents on their intellectual property. Universities and researchers can use this data to determine whether mentorship, outreach, tenure-track, and funding programs implemented to close racial and gender gaps are effective or simply restorative justice theater. Universities are obligated to pursue programs for practical academic equity, rather than false promises of equal opportunity
America’s Constant Crisis of Care: The Case for Passing a National Direct Care Ratio for Nursing Homes
Get PDFFor decades, the conditions in America’s nursing homes have been the subject of bombshell media reporting, governmental investigations, and public outrage. Longstanding issues—such as chronic staffing shortages and inadequate infection control measures—were laid bare as the COVID-19 pandemic tore through nursing homes, exposing society’s most vulnerable populations—the elderly and the sick—to appalling living conditions. Amid horrifying media reports documenting life inside nursing homes, and in response to mounting public outrage, legislators sprang into action. The most aggressive policy proposed was a direct care ratio, which caps the profits that nursing home owners can extract from facilities by mandating a minimum percentage of revenue that must be spent on direct patient care. This policy has thus far been enacted by just three states. The crisis in America’s nursing homes is the result of systemic failures in the regulation and oversight of the industry. This Note argues that a truly effective response requires swift and comprehensive federal action. This Note calls on Congress to enact a national direct care ratio with a revenue-focused approach, narrowly defining the costs allowed to count toward the minimum spending requirement and closely scrutinizing submitted costs. The pandemic made clear that the issues in America’s nursing homes are a national problem that require a national solution
Slaying the Serpents: Why Alternative Intervention Is Necessary to Protect Those in Mental Health Crisis from the State-Created Danger “Snake Pit”
Get PDFThe Black Lives Matter protests in 2020 and ongoing reports of police brutality around the United States sparked extensive debate over qualified immunity and the legal protections that prevent police accountability. Individuals experiencing mental health crises are especially vulnerable to police violence, since police officers lack the requisite skills and knowledge to provide effective crisis support during mental health emergencies. Although the state-created danger doctrine was created by the courts as an exception to qualified immunity, it is so rarely applied that individuals harmed or even killed by police are left without legal remedy. This Note explores qualified immunity and the state-created danger doctrine as they currently exist. In addition, this Note describes the current crisis intervention techniques taught to police officers around the United States, which are highly variable from district to district and require officers to serve medical assessment roles that they are ill-equipped for. Since qualified immunity is rooted in long-standing case precedent, and the state-created danger doctrine rarely applies to those in the midst of a mental health crisis, this Note calls for widespread implementation of alternative crisis intervention. Alternative crisis intervention would protect individuals before a deadly encounter with police occurs. Further, 9-1-1 operators should be separated from police departments, to enable the appropriate dispatch of mental health support in emergency situations and further mitigate the chance for police violence, protecting civilians from ever falling victim to the state-created danger “snake pit.
White Supremacy’s Police Siege on the United States Capitol
Get PDFOn January 6, 2021, law enforcement failed the people and the institutions it was supposed to protect. This article explores how white supremacy and far-right extremism in policing contributed to the insurrection at the Capitol. Police officers enabled the siege of the Capitol, participated in the attack, and failed to take seriously the threat posed by white supremacists and other far-right groups. The debacle is emblematic of the myriad problems in law enforcement that people of color, scholars, and those in the defund and abolitionist movements have been warning about for years. Police complicity in the attack on the Capitol has shown that the infiltration of police departments by white supremacists and far-right extremists has made the country less safe. This article illustrates how these problems in policing, exposed on January 6, harm people of color, and proposes solutions to reform policing in the United States
New York’s School Segregation Crisis: Open the Court Doors Now
Get PDFNew York has the most segregated public school system of any state in America. Nearly seven decades removed from the US Supreme Court’s seminal ruling in Brown v. Board of Education, New York has done little beyond clearing Brown’s baseline mandate of not explicitly segregating students on the basis of race. In part, the forces that shape admissions policies—politics, bigotry, and powerful parents, to highlight a few—have been left unchecked because the transcendent power of the state’s courts has been sealed off. In 2003, the New York Court of Appeals in Paynter v. State firmly shut the door on plaintiffs challenging school segregation under the education article of the state Constitution. Drawing on the successes of education litigation in various other states, this note proposes new language for New York’s education article—unchanged since 1894—that will better reflect contemporary research and realities. A refashioned legal predicate can give all familes and advocates a pathway for leveraging the muscle of the courts in the push towards greater equity in school admissions and educational outcomes