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Beyond Bail
Get PDFFrom the proliferation of community bail funds to the implementation of new risk assessment tools to the limitation and even eradication of monetary bail, reform movements have altered the landscape of pretrial detention. Yet, reform movements have paid little attention to the emerging reality of a post-monetary-bail world. With monetary bail an unavailable or disfavored option, courts have come to rely increasingly on nonmonetary conditions of release. These nonmonetary conditions can be problematic for many of the same reasons that monetary bail is problematic and can inject additional bias into the pretrial system.
In theory, nonmonetary conditions offer increased opportunities for release over monetary bail and can be narrowly tailored to accomplish specific goals. Yet, the proposition that nonmonetary conditions accomplish their purported goals is untested and unsettled. Pretrial release conditions are often imposed at the conclusion of a remarkably brief pretrial hearing and in a near rote fashion, with little or no evidence that the conditions are necessary to avoid the risk or risks that fuel them. Defendants-many of whom are unrepresented at these hearings-may be ill-equipped, financially or otherwise, to comply with these conditions. Noncompliance may place defendants at risk of either additional criminal charges or future pretrial detention.
This Article argues that the reduction or eradication of monetary bail alone has not, and will not, ensure a fair and unbiased system of pretrial detention, nor will it ensure that poor and marginalized defendants will benefit from pretrial release. Rather, these reforms have shifted the burden of release from paying monetary bail to paying fees for a laundry list of pretrial release conditions. If pretrial detention reform is to achieve meaningful results, it must address not just the most apparent barrier to release-the fee charged in the form of bail-but all barriers that promote pretrial incarceration and impose unjustified burdens on defendants awaiting trial
Healthcare Licensing and Liability
Get PDFThe United States\u27 affordable care crisis and chronic physician shortage have required advanced practice registered nurses APRNs and physician assistants PAs to assume increasingly important roles in the healthcare system The increased use of these nonphysician providers has improved access to healthcare and lowered the price of care However restrictive occupational licensing laws ”specifically scopeofpractice laws ”have limited their ability to care for patients While these laws by themselves have important implications for the healthcare system they also interact with other legal regimes to impact the provision of care Restrictive scopeofpractice laws can increase the malpractice liability risk of physicians and decrease this risk for APRNs and PAs via several traditional tort doctrines such as respondeat superior In this Article I provide the first empirical analysis of the interplay between malpractice liability and scopeofpractice laws in the provision of healthcare brbrI concentrate on obstetric care and analyze a dataset of nearly 70 million births over an 18year period The results demonstrate that relaxing APRN and PA scopeofpractice laws significantly reduces the caesarean section rate ”which is currently over three times the rate recommended by the World Health Organization ”when malpractice liability risk is low When malpractice liability risk is high however relaxing these laws results in no change in the caesarean section rate I find similar results for other outcomes such as medical inductions of labor The results thus elucidate an important interaction between scopeofpractice laws and malpractice liability brbrBased on this evidence which shows that relaxing scopeofpractice laws can significantly reduce the number of women who unnecessarily undergo major surgery I argue that states should eliminate restrictive scopeofpractice laws for APRNs and PAs Doing so will remove unnecessary limits on capable healthcare professionals better allow malpractice liability to deter the delivery of unsafe care and improve patient health outcomes brbrAppendix can be found here a hrefhttpsssrncomabstract3357906httpsssrncomabstract3357906
The Due Process of Bail
Get PDFThe Due Process Clause is a central tenet of criminal law\u27s constitutional canon. Yet defining precisely what process is due a defendant is a deceptively complex proposition. Nowhere is this more true than in the context of pretrial detention, where the Court has relied on due process safeguards to preserve the constitutionality of bail provisions. This Article considers the lay of the bail due process landscape through the lens of the district court\u27s opinion in ODonnell v. Harris County and the often convoluted historical description of pretrial due process. Even as the ODonnell court failed to characterize pretrial process as a substantive due process right - as countless courts before it had the case offers a compelling possibility that such a characterization is in fact appropriate in defining due process in a pretrial setting. And so, this Article concludes by reimagining pretrial due process as procedural and substantive in nature
The First Amendment as a Procrustean Bed?: On How and Why Bright Line First Amendment Tests Can Stifle the Scope and Vibrancy of Democratic Deliberation
Get PDFThe Illusory Promise of Free Enterprise: A Primer to Promoting Racially Diverse Entrepreneurship Special Issue on Systemic Racism in the Law & Anti-Racist Solutions
Get PDFPretrial Detention in the Time of COVID-19
Get PDFCOVID-19 has shone a light on the preexisting flaws in the criminal justice system. This Essay focuses on one of the challenges the criminal justice system faces in light of COVID-19: that of a pretrial detention system that falls more harshly on poor and minority defendants, swells local jail populations, is fraught with bias, produces unnecessarily high rates of detention, and carries a myriad of downstream consequences, both for the accused and the community at large. Long before the first confirmed case, United States\u27 jails were particularly susceptible to contagions. The COVID-19 crisis exacerbates this problem creating an acute threat to the health of those in custody and those who staff our jails. The pandemic reveals that even during ordinary times the pretrial detention system fundamentally miscalculates public safety interests to the detriment of both detainees and the communities they leave behind. Simply put, current pretrial detention models fail to account for the risks defendants face while incarcerated and pit defendants\u27 interests against the very communities that depend on them
Love in the Time of Cholera
Get PDFA famous novel by Gabriel Garcia Mdrquez describes a love story among three actors that took place in a city in Colombia during the time of cholera. The interpersonal dynamics that unfold in this work by a Nobel Prize winning writer offer insight into events taking place today. We show how the urge to romanticize emotions during a time of great social stress, as well as the desire to cleave to a strong leader, explain events in Garcia Mirquez\u27s mythical country, as well as in ours today. We draw conclusions about how citizens should respond to Donald J. Trump\u27s unloving policies toward immigrants, bus drivers, and line workers in meat- packing plants, and suggest approaches for readers weighing their vote in the next election