University of California Hastings College of the Law
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In Place of Prison
No full textA new, previously unstudied institution is addressing felonies, including violent felonies of the highest levels, without imposing incarceration as the sanction. Attempts to abolish prisons, or at least reduce racialized mass incarceration, must consider how to respond to serious and violent crimes. This Article offers an analysis of a real-world, ongoing experiment in doing so.
The Manhattan Felony Alternative-to-Incarceration Court (“ATI Court”) is the first and, thus far, the only court in the country that systematically offers defendants of any demographic and any charge the opportunity to be diverted from the traditional criminal legal system and to avoid prison. Defendants are mandated instead to engage with community-based social services, such as education, mental health treatment, job skills training, substance use programming, and housing support.
This Article is the first academic work to describe and conduct an institutional analysis of this paradigm-shifting phenomenon, and the first text providing an in-depth, publicly available account of the court. I collected empirical data using qualitative methods. Based on my site visits, my interviews and correspondence with court actors, and court documents, this Article describes the court, situates it in the context of existing “alternatives to incarceration,” and analyzes the court’s design.
This court has three innovative features that transform the genre of specialized criminal courts, which already provide opportunities to avoid incarceration. First, it is a non-specialized specialized court: It employs no eligibility restrictions based on demographic, need, or charge. Rather than siphoning off low-level cases or sympathetic groups (such as veterans) from the traditional criminal system as older specialized courts do, this court opens the non-incarceration option to all defendants. Second, the court performs the function of probation without probation officers and their law enforcement tools and approaches. Third, the court makes operational changes to the traditional specialized court model that, with the first two innovations, avert the usual effect of specialized courts: widening and strengthening the “net” of carceral supervision.
This court is the latest among a number of approaches already operating on the margins of the criminal system, but some of the court’s stakeholders intend for its model to become the default criminal legal response, replacing the current default: prison. This Article assesses the role the court plays within the wider criminal legal system. While imperfect, this new court expands the realm of possible responses to crime and provides further evidence of the obsolescence of prisons
The Law of Killing for Biodiversity
No full textIn the United States, Australia, New Zealand, and elsewhere, people kill sentient creatures—by the millions every year—in the crusade to conserve biodiversity.
I explain how laws permit, and in some instances require, killing to save nonhuman species and to keep ecosystems functioning. In Australia, the nation with the worst record of mammalian extinctions, the government has tagged various invaders as “Key Threatening Processes.” In 2023, it laid out elaborate plans to rid the nation of as many feral cats as poison and hunters could kill. Similarly, “Predator Free New Zealand 2050” is the New Zealand government’s elaborate plan to trap and kill every stoat, weasel, fox, and rat that imperils the nation’s largely defenseless flightless bird species. The United States has no overarching plan to get rid of invasive animals that threaten endangered species, but nonetheless sanctions killing barred owls to save northern spotted owls, goats and sheep to save Hawaii’s Palila bird, and Burmese pythons to protect numerous Everglades species . . . the list goes on.
I explain how, where, and why these laws exist and function. In some nations, for some species and ecosystems, the moral calculus tilts towards killing for conservation. As in any conversation about biodiversity in the Anthropocene, the answers hinge on fundamental questions: What kind of planet do we want? Who do we want to share it with going forward? How much can we homogenize our surrounding ecosystems and still sustain human life? I advocate that in many cases, governments should continue to kill sentient, non-native creatures to save other creatures that are critical to maintaining the functioning ecosystems that sustain human lives
Realizing The Americans with Abilities Act: Promoting Civil Rights & Capabilities in the Service of Individuals with Brain Injury
No full textBrain injuries often result in varying degrees of impairment to communication and cognitive processes, impeding an individual’s ability to engage in daily activities, participate in social interactions, and achieve independence. This paper builds upon our legislative proposal from Designing An Americans With Abilities Act: Consciousness, Capabilities, and Civil Rights, published in the Boston College Law Review in 2022. That paper proposed new legislation called “The Americans with Abilities Act” (“AWAA”), a comprehensive framework for the effective development, uptake, and utilization of advanced assistive technology (“AT”). These technologies aid individuals with brain injuries in realizing their capabilities and reintegrating into broader society.
Addressing the crucial need for person-centered disability legislation, the AWAA would establish a comprehensive and coordinated governmental effort to assist the recovery journey of brain injury survivors and their families. It does this through establishing tailored support networks and new mechanisms for improved research, development, and uptake of accessible AT. When offered to those with brain injuries, AT can foster communication and improve reintegration.
This paper builds on our 2022 paper, focusing on administrative law and civil rights to introduce a central component of the AWAA: an innovative interagency committee called “The Interagency Committee for Brain Injury Recovery” (“ICBIR”). The ICBIR will synergize efforts among healthcare providers, technology experts, rehabilitation specialists, those with brain injuries and their family members, to create cohesive individualized care plans. These plans will more effectively address the multifaceted needs of brain injury survivors throughout their long recovery, while supporting their civil liberties and fostering reintegration.
Our legislation includes a structured framework that ensures equitable access to rehabilitation, medical support, and state-of-the-art AT tailored to the needs of brain injury survivors. These benefits improve independence, quality of life, and communication. By facilitating effective communication, cognitive rehabilitation, and community reintegration, the AWAA aims to address the unique challenges that brain injury survivors encounter during their recovery process. The AWAA will also nurture the independence and well-being of brain injury survivors by broadening their capabilities, thus enhancing their prospects for community reintegration and independent living.
Through a person-centered administrative law approach, the AWAA and its constitutive ICBIR catalyze governmental support systems for brain injury survivors by bolstering their capabilities and safeguarding their civil rights. Ultimately, this legislative endeavor exemplifies a transformative step toward fostering inclusivity, maximizing potential, and creating a society that embraces diverse abilities
Artificial Intelligence & Defamation Law: An Excuse to Do Away with the Infamously Controversial Section 230?
No full textWith the growing prevalence of artificial intelligence (AI) in various aspects of our lives, it is not surprising that it has become a subject of legal disputes and controversy. In 2023, an individual filed the first defamation lawsuit against AI company, OpenAI, for its ChatGPT service, leaving many to speculate how the court will proceed. This Note assesses the viability of defamation actions against generative AI platforms and their broader effect on defamation law. Particularly, this Note considers how courts may characterize these platforms and how specific characterizations could further the controversy over an already polarizing and hotly debated piece of legislation—Section 230 of the Communications Decency Act (“CDA”). Suppose courts remain consistent with prior broad interpretations of Section 230 and grant generative AI platforms “internet provider” status. This would protect AI platforms from liability for outputs that spread false, misleading, or dangerous information to users. Consequently, harmed plaintiffs would be left without any recourse or recovery options against the companies and programs behind the AI algorithms. The potential for a continuation of such expansive judicial interpretations should prompt Congress to revisit the legislation that has granted internet providers sweeping protection for decades. This Note argues that Congress should use the contentions associated with AI and defamation to clarify the contours of the current Section 230 legal framework and adjust it to fit the range of technological advancements that have developed since its enactment. Specifically, Congress should not simply leave it up to individual courts to decipher the statute’s reach on their own. Instead, Congress should act now to eradicate or radically restructure this controversial and outdated legislation before it seeps into areas of technology beyond its purpose. Thus, generative artificial intelligence programs emphasize the antiquity and inflexibility of Section 230 in today’s technological society, giving AI the potential to ignite congressional removal or reform of one of the most influential internet laws today
