Judge Kavanaugh and justiciability

Judge Kavanaugh and justiciabilityAaron Nielson is an associate law professor at Brigham Young University and the weekly author of D.C. Circuit Review–Reviewed at the Notice & Comment Blog. The U.S. Court of Appeals for the District of Columbia Circuit is an unusual court. Because it disproportionately hears lawsuits involving the United States, it often wades into the “famously […]

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Judge Kavanaugh and justiciability

Aaron Nielson is an associate law professor at Brigham Young University and the weekly author of D.C. Circuit Review–Reviewed at the Notice & Comment Blog.

The U.S. Court of Appeals for the District of Columbia Circuit is an unusual court. Because it disproportionately hears lawsuits involving the United States, it often wades into the “famously murky” waters of the political-question doctrine, as well as the equally murky doctrines of standing, final agency action, and ripeness and mootness. In fact, the local rules require parties in “direct review” cases—cases in which challenges to an administrative agency action must be brought directly in the D.C. Circuit, instead of in a district court first—to address standing. All of these issues involve questions of justiciability: whether, as a threshold matter, a federal court has the authority at all to decide the legal merits of a case. I can attest, moreover, that the D.C. Circuit takes justiciability seriously. When I was a clerk, a judge promised to take any clerk to lunch who found a meritorious, unbriefed justiciability issue.

It is safe to say that Judge Brett Kavanaugh has spent untold hours thinking about justiciability. When I teach the political question doctrine, I assign the en banc decision in El-Shifa Pharmaceutical Industries Co. v. United States, a case I discuss below about a 1998 U.S. missile strike on a Sudanese pharmaceutical plant. Kavanaugh’s concurrence is well worth your time.

For this post, I’ve been asked to survey Kavanaugh’s justiciability opinions and consider how his confirmation might change the Supreme Court’s approach to these issues. I don’t think he would change it all that much. For one thing (to be sure, with some notable exceptions), there is often a great deal of consensus among the justices on justiciability, so even if Kavanaugh were a revolutionary (and he’s not), he wouldn’t be the swing vote anyway. I’m also not sure there would be much difference between Kavanaugh and Justice Anthony Kennedy for many of these kinds of cases, so even if the court were divided, a Kennedy/Kavanaugh switch wouldn’t shift things. Even so, Kavanaugh’s justiciability opinions merit a read because they show his mind at work.

Article III standing

Kavanaugh has addressed standing many times during his tenure on the D.C. Circuit. “Standing” (and this is a simplification) is the constitutional requirement that before a court can decide the merits of a plaintiff’s legal claim, the plaintiff must show that it is likely that the defendant caused or will cause an actual injury to the plaintiff. In other words, in lawsuits challenging regulations—the D.C. Circuit’s bread and butter—it’s not enough that a person, or a public interest group, or a business is merely upset with a new regulation or believes the regulation is unlawful. Whether a regulation is likely to cause some actual injury can be a very tricky question, but one with high stakes: If a plaintiff lacks standing, the court cannot constitutionally hear the plaintiff’s legal claims, no matter how meritorious. My sense is that although Kavanaugh enjoys thinking through standing puzzles, he understands the stakes for the litigants of a ruling on standing and tries to keep his analysis grounded in common sense.

Even when Kavanaugh rejects a claim, he sometimes uses his discussion of standing to show that he has heard the plaintiff’s argument and taken it seriously. In Howard R.L. Cook & Tommy Shaw Found. ex rel. Black Employees of Library of Cong., Inc. v. Billington, a group of employees sued the Library of Congress for not extending to them the same benefits (such as meeting space, etc.) that it extended to other employee groups. While holding that the group failed to state a claim, Kavanaugh (joined by Judges David Tatel and David Sentelle) stressed that it had standing to sue and that its concern merited meaningful recognition:

The Library argues that plaintiffs have failed to allege an injury in fact because “the privileges to employees who participate … in recognized organizations are insubstantial.” If the Library views the privileges of recognition as so insubstantial, perhaps it would have been better off granting recognition and avoiding litigation. In fact, however, the benefits of recognition are not trivial, and denial of those benefits constitutes an injury in fact.

Nor is this an isolated example. In Coalition for Mercury-Free Drugs v. Sebelius, Kavanaugh (joined by Judges Judith Rogers and Stephen Williams) rejected on standing grounds a challenge to the Food and Drug Administration’s decision to allow “vaccines that contain thimerosal, a mercury-based preservative” but went out of his way to “recognize plaintiffs’ genuine concern.” And in Newdow v. Roberts, the majority dismissed a challenge to the use of the phrase “so help me God” in presidential inaugural ceremonies. Kavanaugh concurred in the judgment, but he would have held that the plaintiffs had standing.

And even when he has sided against challengers, he has kept the door open for them to take another shot. In Public Citizen, Inc. v. National Highway Traffic Safety Administration, Public Citizen maintained that it had standing to challenge a tire-safety standard on the ground that the standard would increase the risk of injury to the organization’s members. Kavanaugh (joined by Judges Sentelle and Raymond Randolph) disagreed: “Under Public Citizen’s theory of probabilistic injury, after an agency takes virtually any action, virtually any citizen—because of a fractional chance of benefit from alternative action—would have standing to obtain judicial review of the agency’s choice.” Nonetheless, Kavanaugh gave Public Citizen another chance to see if it could fit within a narrower theory; Sentelle declined to “join the majority’s decision to allow Public Citizen a further attempt to establish standing.”  The following year, the court (in a per curiam decision) again concluded there was no standing.

Kavanaugh’s approach to standing is generally pretty practical. In Energy Future Coalition v. Environmental Protection Agency, biofuel manufacturers challenged the EPA’s refusal to allow a biofuel to be used as a test fuel. Even though the regulation in question was directed at vehicle manufacturers, not biofuel manufacturers, Kavanaugh (joined by Tatel and Judge Cornelia Pillard) found standing:

If the Government prohibits or impedes Company A from using Company B’s product, does Company B have standing to sue? … [S]uppose the District of Columbia bans or makes it harder for concession stands to sell hot dogs. Does a local hot dog manufacturer have standing to sue? … In such cases, both Company A and Company B are an object of the action (or forgone action) at issue, so there is ordinarily little question that they have standing under Lujan. So it is here.

Similarly, in Hall v. Sebelius, Kavanaugh (joined by Judge Douglas Ginsburg) opened his opinion this way:

This is not your typical lawsuit against the Government. Plaintiffs here have sued because they don’t want government benefits. They seek to disclaim their legal entitlement to Medicare Part A benefits for hospitalization costs. Plaintiffs want to disclaim their legal entitlement to Medicare Part A benefits because their private insurers limit coverage for patients who are entitled to Medicare Part A benefits.

Kavanaugh ruled against the plaintiffs on the merits (as it turns out, you can turn down the money, but not the entitlement to the money—although Judge Karen Henderson disagreed), but he concluded that they had standing “because their private insurance has been curtailed as a direct result of their legal entitlement to Medicare.” Still, Kavanaugh does not think common sense is a substitute for record evidence supporting a particular standing theory. In Communities for a Better Environment v. EPA, Kavanaugh (joined by Williams and Judge Janice Rogers Brown) rejected on standing grounds a challenge to the EPA’s refusal to set a secondary standard for carbon monoxide because he agreed with the agency that the connection to climate change was too speculative: “For the reasons identified by EPA, petitioners’ theory of causation is simply a bridge too far given the current record.”

To be sure, not everyone agrees with every Kavanaugh standing opinion. In In re Navy Chaplaincy, a group of Protestant chaplains sued to enjoin the Navy from allegedly using its retirement program to favor Catholic chaplains. Kavanaugh (joined by Judge Laurence Silberman) concluded there was no standing, explaining (among many other points; this one should be read in full) that “mere personal offense to government action does not give rise to standing to sue.” Rogers sharply dissented: “The court ignores all of this precedent in adopting the novel conception that appellants are not harmed for purposes of standing under the Establishment Clause unless the Navy itself directly uses religious words or symbols as occurred in the religious display cases.”

Kavanaugh also does not always agree with his colleagues. In Morgan Drexen, Inc., v. Consumer Financial Protection Bureau, Rogers, joined by Pillard, dismissed a challenge to the CFPB’s authority on standing grounds. In his short dissent, Kavanaugh stated that the CFPB “is regulating a business that [the attorney] engages in. That is enough for standing. We have a tendency to make standing law more complicated than it needs to be.” And in Grocery Manufacturers Association v. EPA, he disagreed with Sentelle, who ruled that members of the food industry lacked prudential standing (a form of standing that isn’t constitutionally based) to challenge an EPA ethanol rule because it would increase demand for corn: “This is Economics 101 and requires no elaborate chain of reasoning.” (Tatel’s short concurrence is also worth a read.)

The political question doctrine

At least as a matter of vote tallies, it is also unlikely that a Justice Kavanaugh would meaningfully change the Supreme Court’s approach to the political question doctrine (i.e., the doctrine under which some courts will not decide some questions that should be addressed by the other branches). In Zivotofsky v. Clinton, Chief Justice John Roberts (writing for a good chunk of the court) held that determining whether “Jerusalem, Israel” could be included as a birthplace location on a passport was justiciable. On the D.C. Circuit, Kavanaugh—joined by Rogers and Ginsburg—voted (unsuccessfully) to rehear en banc the decision that the Supreme Court later reversed. After Zivotofsky, the Supreme Court’s path may be set for a while.

That said, Kavanaugh’s analysis may win some adherents. In El-Shifa Pharmaceutical Industries Co. v. United States, mentioned above, Kavanaugh—joined in full by then-Chief Judge Sentelle and in part by Ginsburg and Rogers—concurred in an en banc judgment that dismissed claims brought by a pharmaceutical company and its owner after a factory in Sudan was destroyed by a U.S. missile strike. Arguing that the suit should have been dismissed for failure to state a claim rather than on justiciability grounds, Kavanaugh strongly disagreed with both the majority’s decision to apply the political question doctrine and its analysis:

The key point for purposes of my political question analysis is this: Plaintiffs do not allege that the Executive Branch violated the Constitution. Rather, plaintiffs allege that the Executive Branch violated congressionally enacted statutes that purportedly constrain the Executive. … If a court refused to give effect to a statute that regulated Executive conduct, it necessarily would be holding that Congress is unable to constrain Executive conduct in the challenged sphere of action. … Applying the political question doctrine in statutory cases  … would systematically favor the Executive Branch over the Legislative Branch.

Candidly, I’m not sure who is right in El-Shifa; that’s why it is a good case to assign students. And Kavanaugh’s analysis should give pause to those who say he is reflexively pro-executive. The main point of his opinion in El-Shifa is to stress that Congress has a role too.

In Harbury v. Hayden, Kavanaugh (joined by Randolph and Williams) affirmed a dismissal of claims brought by a woman against various U.S. government officials allegedly involved in killing her husband during Guatemala’s civil war in the 1990s. Noting that “[t]he political question doctrine is an important tenet of separation of powers and judicial restraint,” albeit one “notorious for its imprecision,” Kavanaugh applied the doctrine because he concluded that D.C. Circuit precedent compelled the result.

Final agency action

In recent years, the Supreme Court has issued two important—and (mostly) unanimous—decisions on what is reviewable final agency action: U.S. Army Corps of Engineers v. Hawkes Co., Inc. and Sackett v. EPA. In both, the Supreme Court expanded the scope of reviewable decisions. Given that uniformity, it is again unlikely that a Justice Kavanaugh would make much of a difference here.

Nonetheless, Kavanaugh has addressed the topic, and he takes the final agency action requirement seriously. His most important case on this subject may be In re Murray Energy Corp. There, a number of petitioners, including a coalition of states, tried to challenge the EPA’s Clean Power Plan before it was finalized. Kavanaugh (joined by Judge Thomas Griffith) concluded that “[p]roposed rules meet neither of the two requirements for final agency action.” Henderson wrote separately. Similarly, in National Mining Association v. McCarthy, a mining association sought review of an EPA guidance memo. Kavanaugh (joined by Griffith and Judge Sri Srinivasan) concluded there was no final agency action: “One might think that an agency memo entitled ‘Final Guidance’ would be final. But that would be wrong, at least under the sometimes-byzantine case law. An agency action is final only if it is both ‘the consummation of the agency’s decisionmaking process’ and a decision by which ‘rights or obligations have been determined’ or from which ‘legal consequences will flow.’”

Ripeness and Mootness

Finally, I also doubt that a Justice Kavanaugh would fundamentally change the Supreme Court’s approach to ripeness and mootness. “Ripeness” essentially asks whether it’s too early for a court to decide the merits of claim, and “mootness” essentially asks whether it’s too late. Nonetheless, he has issued several noteworthy opinions on the subject.

His most significant ripeness decision is probably State National Bank of Big Spring v. Lew, which reflects a nuanced approach to justiciability. Kavanaugh (joined by Rogers and Pillard), confronted challenges to “the constitutionality of various provisions of the Dodd-Frank Act.” On one hand, he concluded that “a regulated entity” need not violate a law to challenge the constitutionality of an agency’s structure, nor the constitutionality of the president’s appointment of the agency’s director. On the other hand, he rejected the notion that challengers could attack the possible future exercise of an allegedly unconstitutional power when the question of how that power might be used was speculative.

Another noteworthy opinion is Kavanaugh’s dissent in American Bird Conservancy, Inc. v. Federal Communications Commission (per curiam, Rogers and Judge Merrick Garland). The petitioners challenged the agency’s approach to communication towers. Yet the FCC was still evaluating the effects of those towers on birds. Kavanaugh compared the situation to one in which a petitioner challenges an order while the agency is still considering a petition for reconsideration and stressed that “[d]ismissing this case on ripeness grounds would serve the interests of judicial economy, permit the Executive Branch to carefully re-examine and resolve environmental issues related to communications towers and birds on a nationwide basis, and impose minimal hardship on the petitioners who are themselves participating in the nationwide rulemaking proceeding.”

As to mootness, in Hamdan v. United States, Kavanaugh (joined by Sentelle and Ginsburg) addressed whether an appeal of a conviction by a military tribunal was moot once the detainee was released from custody. Kavanaugh analogized to a conviction in an ordinary court, in which case a direct appeal is generally not mooted by release. Ginsburg concurred to note his agreement with Kavanaugh’s reading of precedent but also his discomfort with that precedent. (This opinion presumably will receive some attention for its merits analysis; the mootness aspect, however, is important too.)

Conclusion

There is a lot more that could be said, but this post is long enough. Unless you are deep in the weeds of “Admin Law” and “Fed Courts” (give it a try; it isn’t a bad place to be), justiciability is not the jazziest topic. Here is my bottom-line assessment: Although not everyone will agree with all of his justiciability opinions, Kavanaugh’s views on the whole strike me as pretty mainstream. And that is not a bad thing. Justiciability can be fuzzy (sometimes to a fault), but the D.C. Circuit takes it seriously, and Kavanaugh is no exception. Should he be confirmed, I expect that trend will continue.

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Woman stabbed English tourist to ‘rid the house of evil’: cops

A Long Island woman who claimed she needed to rid her home of “evil” allegedly stabbed a British woman to death after they lunch together, Nassau County police officials said Tuesday. Faye Doomchin, 66, of Great Neck, was charged with second-degree murder for the fatal Monday knifing of the 60-year-old victim, whom Doomchin had met…

A Long Island woman who claimed she needed to rid her home of “evil” allegedly stabbed a British woman to death after they lunch together, Nassau County police officials said Tuesday. Faye Doomchin, 66, of Great Neck, was charged with second-degree murder for the fatal Monday knifing of the 60-year-old victim, whom Doomchin had met...

from https://nypost.com

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El Chapo won’t be tunneling to court during trial

Joaquin “El Chapo” Guzman will stand trial in Brooklyn, a judge ruled Tuesday. Defense attorneys for the drug kingpin had tried to convince Brooklyn federal court Judge Brian Cogan that he should move Guzman’s case to Manhattan federal court, so the drug boss could use a tunnel to get to court. The Sinaloa Cartel head…

Joaquin “El Chapo” Guzman will stand trial in Brooklyn, a judge ruled Tuesday. Defense attorneys for the drug kingpin had tried to convince Brooklyn federal court Judge Brian Cogan that he should move Guzman’s case to Manhattan federal court, so the drug boss could use a tunnel to get to court. The Sinaloa Cartel head...

from https://nypost.com

Categories: Uncategorized

Nebraska Executes Carey Dean Moore, First State Execution Since 1997

The execution of Carey Dean Moore went forward on Tuesday after a federal appeals court denied a drug company’s request to halt the lethal injection over concerns about whether the drugs were obtained improperly by the state.

Nebraska executed Carey Dean Moore on Tuesday. It was the state’s first execution since 1997 and the first by lethal injection, reports the Omaha World-Herald. The execution went forward after a federal appeals court denied a drug company’s request to halt the lethal injection over concerns about whether the drugs were obtained improperly by the state, NPR reports.

Moore’s execution was scheduled to be the first time the powerful synthetic opioid fentanyl was used in a U.S. lethal injection. Moore, who has been in prison since 1980 after he was convicted of two first degree murders, has not challenged the execution protocol. He’s had seven other execution dates before this one.

The primary legal challenge was from German pharmaceutical company Fresenius Kabi, which makes potassium chloride and cisatracurium besylate, two of the four drugs in the protocol. An increasing number of pharmaceutical companies have taken legal action against states using their products in executions, which has made it difficult for states to obtain the drugs.

The state has not disclosed its supplier. Fresenius Kabi said it has “grounds to believe” that Nebraska is using their drugs. U.S. District Judge Richard Kopf said the company’s claim that the drug’s use would cause it “irreparable injury” was “far too speculative.”

Nebraska said it contacted at least forty potential suppliers and six other states to find the drugs used in the execution.

An unidentified supplier was the only one willing to sell Nebraska the drugs. One of the substances expires on Aug. 31. Nebraska had argued that any delay could render it unable to carry out executions indefinitely.

from https://thecrimereport.org

With Kavanaugh hearing set, Senate releases records

With Kavanaugh hearing set, Senate releases recordsAlthough the battle over records related to Judge Brett Kavanaugh’s tenure in the George W. Bush White House continues, the Senate Judiciary Committee has recently released over 100,000 pages of documents. The first batch of documents, released last week, contained over 5,000 pages of emails from Kavanaugh’s stint as an associate White House counsel, a […]

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With Kavanaugh hearing set, Senate releases records

Although the battle over records related to Judge Brett Kavanaugh’s tenure in the George W. Bush White House continues, the Senate Judiciary Committee has recently released over 100,000 pages of documents. The first batch of documents, released last week, contained over 5,000 pages of emails from Kavanaugh’s stint as an associate White House counsel, a position in which he served from January 2001 until 2003. Hundreds (if not thousands) of pages from the initial batch of documents are completely nonsubstantive, made up of – for example – email headers from mass emails and computerized legal alerts to which Kavanaugh subscribed. Many other emails are somewhat cryptic, giving the distinct impression that staffers were trying to avoid getting into too much substantive discussion over email. But the emails also provide a detailed look into the operation of the White House counsel’s office, including the extent to which the lawyers’ work is often enmeshed with politics. And the emails are likely to provide fodder for members of the Senate Judiciary Committee to question Kavanaugh about his role in the Bush administration’s war on terror when the confirmation hearing begins in early September.

The emails indicate that the White House counsel’s office runs, as another White House attorney described it in a draft of a speech that appeared in Kavanaugh’s emails, much like a small law firm. At the beginning of the Bush administration, the “managing partner” was Alberto Gonzales, a former Texas judge; an early email appeared to instruct White House lawyers not to schedule meetings with Gonzales over lunch because “Al” “doesn’t do lunch.” Another email indicated that when a new lawyer in the office started, the veterans tried to offload the less desirable parts of their portfolios onto the newcomer.

While Kavanaugh was a White House lawyer, his portfolio was eclectic, ranging from participating in the Bush administration’s efforts to select new federal judges and ensure their confirmation to being the office’s in-house ethics expert. Kavanaugh fielded a steady drumbeat of questions regarding ethics issues, involving everything from approving invitations for political events at the White House to signing off on what kind of stationery to use for graduate school recommendations and the use of private planes by White House officials for political travel. Perhaps ironically, the preservation of presidential records was also part of Kavanaugh’s portfolio, with another White House lawyer jokingly referring to him as “Mr. Presidential Records”: Kavanaugh weighed in, for example, on whether White House official Josh Bolten could have his Lotus Notes email database downloaded to a CD before his email was converted to Outlook.

After the September 11, 2001, terrorist attacks, Kavanaugh’s work came to include a variety of issues related to the country’s response. He was involved in or received requests regarding compensation for victims of the attacks, liability for airplane manufacturers, and (maybe most significantly) the drafting of talking points for anti-terrorism laws. Kavanaugh received an email about John Walker Lindh, the American captured as an enemy combatant in Afghanistan, from Ben Wittes, now a prominent national security expert who was at the time a member of the editorial board at the Washington Post; Kavanaugh passed off Wittes’ question to others, but Kavanaugh clearly seemed aware of the situation. Kavanaugh also worked on the USA Patriot Act, a law passed in the wake of the attacks that gave the government (among other things) new surveillance powers – a fact that came out in the context of an email about a Capitol Hill staffer applying to the White House counsel’s office. (Kavanaugh’s emails also show that, after the September 11 attacks, he was one of many senior White House staffers who received an email from Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas. Ginni Thomas, then at the Heritage Foundation, wrote that her “prayers and support are heightened for each of you in the Bush administration. It is my personal belief that God has you here for a reason.”)

Although Kavanaugh was acting as a White House lawyer, his work often overlapped closely with politics. One email, for example, suggests that Kavanaugh was involved in meetings regarding “asset deployment,” which a 2007 Washington Post article described as a strategy of coordinating official announcements, trips and grants to promote the Bush administration’s  agenda and re-election. And in an email to Don Willett, then an official at the Department of Justice but now a judge on the U.S. Court of Appeals for the 5th Circuit best known for his prolific use of Twitter while a justice on the Texas Supreme Court, Kavanaugh asked whether any “Clinton judicial appointees who had been state judges” had received contributions from Enron, the energy company that collapsed after its widespread accounting-fraud scheme became public.

The emails also show that a day in the life of a White House lawyer was a long one: Kavanaugh often began emailing shortly after 6 a.m. and would continue to do so until after midnight. In a 2002 email, Kavanaugh summarized a typical day, which started with a senior staff meeting at 7:30 a.m. and continued with several more meetings (including a “message meeting”).

The emails sometimes reflect the minutiae of day-to-day life working in the White House, including updates on parking passes, efforts to expand the capacity of Kavanaugh’s voicemail or to hunt down library  books checked out of the Department of Justice, bills for the food that Kavanaugh ate during a stay at Camp David (“I had 3 meals and some drinks and snack out of the refrigerator,” wrote Kavanaugh) and arrangements to interview paralegals. Other emails are strictly personal, such as those from Ashley Estes, Bush’s personal secretary, whom Kavanaugh would marry in 2004, inquiring about when Kavanaugh might be free for dinner or whether she should RSVP for a Republican National Committee gala.

This post was originally published at Howe on the Court.

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Bystander Education Programs for Sexual Assault Prevention on College Campuses

This practice comprises programs that are designed to decrease the prevalence of sexual assault on college campuses by educating would-be bystanders (i.e., witnesses) about the occurrence of sexual assault, as well as promoting prosocial attitudes and …

This practice comprises programs that are designed to decrease the prevalence of sexual assault on college campuses by educating would-be bystanders (i.e., witnesses) about the occurrence of sexual assault, as well as promoting prosocial attitudes and the willingness to intervene in risky situations. The practice is rated Promising for reducing rape-supportive attitudes, increasing bystander efficacy, increasing bystander intent to help, and increasing bystander helping behavior.

from http://www.crimesolutions.gov/

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Computerized Brief Interventions for Youth Alcohol Use

A computerized brief intervention is any preventive or therapeutic activity delivered through electronic devices with a maximum total time of one hour. The interventions are designed to help youth think differently about their alcohol use and provide t…

A computerized brief intervention is any preventive or therapeutic activity delivered through electronic devices with a maximum total time of one hour. The interventions are designed to help youth think differently about their alcohol use and provide them with skills to reduce or eliminate alcohol use. The practice is rated Effective for reducing short-term alcohol use.

from http://www.crimesolutions.gov/

Categories: Uncategorized

Legal Profession ‘Critical’ to Addressing Opioid Crisis: ABA

A new report by the American Bar Association’s Senior Lawyers Division makes nine recommendations and suggests 45 “action items” that it says can advance public health efforts to confront the opioid epidemic. One recommendation calls for promoting policies and laws that support families and caregivers struggling with opioid and substance misuse disorders.

The legal profession can play a “critical” role in combating the growing opioid crisis in America, says the American Bar Association (ABA).

In a new report by the ABA’s Senior Lawyers Division, the nation’s top legal association made nine recommendations and suggested 45 action items aimed at confronting an epidemic that took more than 42,000 lives in 2016, and was named a “public health emergency” in 2017 by the Department of Health and Human Services.

“The legal profession’s voice is critical to advancing public health efforts to confront the opioid epidemic, including efforts focused on prevention, intervention, and treatment,” the ABA said.

According to the report, lawyers can provide alternatives to criminal sentencing, mandate education and training, strengthen data tracking and reporting requirements, and aid and support collaboration across agencies focused on developing family-friendly policies and resources–to name a few.

The report and its recommendations will be used to collaborate with other ABA entities to develop specific policy resolutions that address the opioid crisis.

“The epidemic is shortening American life expectancy, impacting local government budgets, straining family resources and relationships, and challenging all of us to find solutions,” said Jack Young, chair of the ABA Senior Lawyers Division.

“It affects all of us.”

Notably, the Senior Lawyers Division plans to have a resolution approving the report’s recommendations and action items reviewed by the ABA House of Delegates as early as the ABA Midyear Meeting in January 2019.

The report made the following recommendations:

  1. Invest in multidisciplinary education and training opportunities for individuals, families, vulnerable populations, professionals, and community stakeholders.
  2. Expand access to treatment and recovery for individuals with opioid and substance misuse disorders and aggressively address stigmatism.
  3. Establish comprehensive treatment and outreach efforts tailored to the diverse needs of individuals and families struggling with opioid and substance misuse disorders.
  4. Increase the legal profession’s capacity to respond to and meet individual and family needs through partnerships, collaboration, and dissemination of information and resources in support of individual and family needs.
  5. Promote policies and laws that support families and caregivers struggling with opioid and substance misuse disorders.
  6. Support policies and laws that support families in crisis and strengthen the family unit.
  7. Identify state laws and initiatives that have been shown to decrease opioid and substance misuse while ensuring access to pain medications for those with chronic pain.
  8. Expand research and understanding of litigation and policy issues with the aim of addressing the sometimes indirect yet complex issues affected by the opioid crisis.
  9. Recognize the inconsistent response and action to the opioid crisis versus other forms of substance misuse and advocate for policies that address underlying health and socioeconomic disparities.

A full copy of the report can be found here.

This summary was prepared by Megan Hadley, senior reporter for The Crime Report. Readers’ comments welcome.

from https://thecrimereport.org

Homelessness Called ‘Crisis’ for the Formerly Incarcerated

In a report issued Tuesday, the Prison Policy Initiative found that people who have been to prison are 10 times more likely to be homeless than the general public. The report recommended policy initiatives including the prevention of housing discrimination against returning citizens.

People who have been to prison are 10 times more likely to be homeless than the general public, according to a report released Tuesday by the Prison Policy Initiative (PPI).

In the report, entitled Nowhere to Go, the PPI found that over two percent of formerly incarcerated people are homeless and that “nearly twice as many are living in precarious housing situations close to homelessness.”

The report, which the PPI said was the first national snapshot of homelessness among formerly incarcerated people, describes the problem of homelessness among formerly incarcerated as a “little-discussed housing and public safety crisis.”

According to the PPI study, written by Lucius Couloute, the increased likjelihood that an individual leaving prison will be homeless is an “irony considering that police departments regularly arrest and jail the homeless.”

Couloute said landlords and public housing authorities “have wide discretion to punish people with criminal records long after their sentences are over.”

His study said the problem was “fixable” through targeted public policy measures, including:

  • Regulating competitive housing markets to prevent blanket discrimination;
  • Creating statewide reentry systems to help recently-released Americans find homes;
  • Ending the criminalization of homelessness in U.S. cities;
  • Expanding social services for all homeless people, with a “Housing First” approach.

The full report can be downloaded here.

from https://thecrimereport.org

California Ponders Raise the Age Bill

A hearing on state Senate Bill 1391, which would prevent youths under 16 from being sent to adult courts, is scheduled Thursday. Supporters say it will reduce recidivism rates and better rehabilitate and prepare youth for successful, productive reentry into society.

A violent riot broke out in the yard on Michael Mendoza’s very first day in a state prison — a stark wake-up call to his new reality.

At age 15, Mendoza had been tried as an adult and sentenced to life in prison.

“I thought, ‘This is my life, this is what it’s going to be like,’” Mendoza said of that day some 20 years ago. “It’s going to be very violent. And I was going to have to become something I wasn’t to survive – a violent individual.”

For certain crimes in California, teens as young as 14 can be sentenced as adults, and sent to prison for life, like Mendoza was. California Senate Bill 1391, now moving through the state legislature, aims to stop that in light of new understandings of brain development.

“Cognitive science has proven that children and youth who commit crimes are very capable of change,” said State Sen. Ricardo Lara (D), the bill’s author. “Sending youth to an adult prison does not help our youth and does not make our communities any safer.”

The bill, which has been passed on the Senate floor, is due for an Assembly Appropriations Committee hearing on August 16. If passed, SB 1391 could become another piece of aggressive juvenile justice reform under the watch of outgoing California Gov. Jerry Brown.

As the law now stands, teens aged 14 and up who are charged with certain serious offenses can be sent to adult court for adjudication at the behest of a judge via what’s called a transfer hearing. Young teens charged with murder and some sexual offenses are automatically transferred to adult court.

If SB 1391 becomes law, all 14- and 15-year olds charged with a crime would be handled in the juvenile justice system. Under no circumstances would anyone younger than age 16 be tried in adult court, even for murder charges.

“The youngest teens in our system need to be held accountable for their actions, but they’re also require age appropriate services and programs to rehabilitate and grow into mature, healthy adults,” Lara said.

Why Raise The Age?

Before 1994, youth under the age of 16 were always handled by the juvenile justice system in California. But amid the nationwide push to get “tough on crime,” the state lowered the age that youth could be tried as adults from 16 to 14.

Advocates point out the racialized nature of the “super-predator” era” of criminal justice reform that ushered in this law, and indeed, youth of color are disproportionately impacted. In the past 10 years, 50 percent of Latino and 60 percent of black juvenile offenders were sent to adult prison, compared to just 10 percent of white offenders, Lara said during the public safety hearing.

Data Source: California Department of Justice

In 2016, 32 14- and 15-year olds were tried in adult court, a sharp drop from the approximately 70 cases per year that has been the average for the past five, according to data provided by Sen. Lara’s office.

Supporters of SB 1391 argue that keeping 14- and 15-year-old offenders in the juvenile justice system will reduce recidivism rates and better rehabilitate and prepare youth for successful, productive reentry into society.

These benefits are credited, in part, to the availability — and mandatory nature — of services such as education and counseling. But the other side of the coin is that keeping youth in the juvenile system protects them from the behaviors and personalities in adult prison.

“These youth are very young, very moldable,” said Israel Villa, a policy coordinator with the nonprofit MILPA Collective (short for Motivating Individual Leadership for Public Advancement).

“Do we want these kids in a level four prison with the most violent offenders where they can be molded, utilized, often abused? Or do we want them in a juvenile facility amongst their peers with access to all these things to rehabilitate them?”

Mendoza, who was convicted at age 15 for his involvement in a gang-related shooting, recognized that being younger made him a target for manipulation. He felt he had to go along with older men’s orders to survive inside.

But then, 16 years into his life sentence, new hope came when a new bill brought the possibility of release.

Senate Bill 260, or the Justice for Juveniles with Adult Prison Sentences Act, which took effect in 2014, requires the parole board to review the cases of people who were under 18 at the time of their crime — and to “take into consideration the diminished culpability of juveniles as compared to that of adults, the hallmark features of youth, and any subsequent growth and increased maturity of the individual.”

Mendoza was approved for parole during his 17th year of incarceration.

“SB 260 sent me a message of hope from the community saying we understand you were at a very young age when you committed the crime and we believe that young people such as yourselves have the opportunity to mature and to grow,” Mendoza said.

Since being released, Mendoza has earned a bachelor’s degree from San Francisco State University and is now a policy director for the Anti-Recidivism Coalition. He believes that with SB 1391, youth offenders like himself can be rehabilitated without the hopeless years and added trauma he faced.

A Route to Rehabilitation or Coddling Criminals?

Opponents of the bill argue that the courts should have a right to determine the best system to adjudicate young offenders on a case-by-case basis.

“A lot of times, maybe adult prison is inappropriate, and the judges can make that call. But you’re essentially removing their ability to do that,”Jonathan Feldman, legislative advocate for the California Police Chiefs’ Association said at the public safety hearing.

Other opponents of the bill included the Association for Los Angeles Deputy Sheriffs; the California District Attorneys Association; the California State Sheriffs’ Association; and the Los Angeles Police Protective League.

In the same hearing, Sen. Jeff Stone (R) described several especially awful crimes committed by teens who would be affected by this law, and asked Lara if he really thought such individuals could be truly rehabilitated.

“We have to remember that most juvenile offenders have been victims themselves, and being able to understand the entire story is something we can do in the juvenile justice system,” Lara responded.

Moreover, data shows that up to 70 percent of incarcerated youth have a mental health disorder or learning disability, and many of them have a history of trauma and abuse.

“These youth deserve to get the help that they need,” Valerie Thompson, Santa Cruz County’s assistant chief of probation, said in support of the bill during a public safety hearing. “The division of juvenile justice provides evidence-based therapeutic services that support youth to success.”

Villa, who has spent time in both juvenile and adult detention facilities, said there’s a significant difference between the two systems. In the juvenile system, detained youth are required to keep up with their education and participate in other rehabilitative activities. Adult prisons, on the other hand, are so overcrowded that accessing any type of services to better oneself can be difficult.

Villa was on a waiting list for two years just to get into a GED class. “I gave up — it’s not uncommon,” he said.

Mendoza was incarcerated for nearly 10 years before he finally decided to focus on his education; he said starting classes marked the beginning of his rehabilitation. In addition to the lack of access to programs, adult prisons, he said, aren’t conducive to pursuing self-improvement. Inside, survival is the main focus.

“Nobody can really concentrate on getting education when they are stressed out about their living situation,” Mendoza said.

A Turning Tide

While once a pipe dream for advocates, this bill seems to fit within a wider shift in paradigm on rehabilitating young people who run afoul of the law.

In addition to the landmark SB 260, several laws and court decisions have added to the growing consensus that young people who commit crimes have a greater capacity for rehabilitation than adult offenders.

In 2005, the Supreme Court gave the following opinion in Roper v. Simmons:

“[t]he reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character.”

In 2016, California voters passed Prop 57, which repealed a 2000 law that allowed prosecutors — rather than a judge — to determine which juvenile cases should be tried in adult court.

For Mendoza, regardless of how a teen’s case winds up in adult court, the consequences they can face there are still beyond their comprehension.

“For me at the age of 15, it was beyond my understanding. I didn’t really understand it until years later,” once he was already in prison and watching others serve life sentences, Mendoza said.

Villa stresses the reality that most youth being sentenced — whether as juveniles or as adults — will eventually return to their community. Where they serve their time will inevitably have an indelible effect on the people they become.

“If we lock up and throw away these kids at such a young age into the system, that doesn’t bring just to our community or even to the victims because they become trapped in a system of violence and doesn’t prepare them to come home,” Mendoza said.

The Crime Report is pleased to co-publish this story with The Chronicle of Social Change, a national news outlet that covers issues affecting vulnerable children, youth and their families. Sign up for their newsletter or follow The Chronicle of Social Change on Facebook or Twitter. Readers’ comments are welcome.

from https://thecrimereport.org