"The only certainty of this litigation is it's going to be a big fight, and a long fight," said Matthew Bergman, founding attorney of the Social Media Victims Law Center.
Social media platforms such as Facebook, Instagram and TikTok are facing an onslaught of lawsuits alleging they cause mental health problems in teens, from eating disorders to suicide attempts.
Law.com Radar, which recently rolled out new analytic and trend-detection systems, surfaced eight lawsuits of this type in the first week of August. It found more than 30 cases since the start of June.
Some law firms are aggressively seeking new cases. Orlando, Florida-based Morgan & Morgan, for instance, is running ads on Google headlined, “Why Social Media Can Be Dangerous for Your Child.”
“Parents are saying enough is enough,” said Matthew Bergman, founding attorney of the Social Media Victims Law Center. “Frances Haugen’s revelations combined with the surgeon general’s report on teen mental health has made clear that social media products are dangerous and are harming our kids.”
Bergman is among the attorneys bringing several of the lawsuits, including one targeting ByteDance, creator of the popular social app TikTok. That suit alleges ByteDance intentionally built in addictive qualities with teens in mind.
The potential mental health risks of social media splashed into the headlines last year after Haugen, a former data engineer for Facebook parent Meta, leaked internal company documents showing the company’s own research found its Instagram service harmed the mental health of some young people.
U.S. Surgeon General Dr. Vivek Murthy highlighted similar concerns in a report last year and in public comments. In an interview with NPR in December, he said, “Right now, we’re conducting this national experiment on our kids with social media. And it’s worrisome to me as a parent.”
Social media companies have not yet responded to the latest batch of suits, and they did not respond to requests for comment. However, in response to criticism of its Instagram service, Meta has said, “We continue to build new features to help people who might be dealing with negative social comparisons or body image issues.”
The companies also believe they have a legal shield of sorts via Section 230 of the Communications Decency Act, which protects internet companies from being liable for content created by their users.
Typical of the mental health lawsuits is one filed in January by Tammy Rodriguez in the Northern District of California against Meta and Snap Inc., parent of Snapchat. It says her daughter, 11-year-old Selene Rodriguez, became addicted to social media, particularly Instagram, and eventually took her own life.
The suit alleges the companies designed the platforms to “promote problematic and excessive use that they know is indicative of addictive and self-destructive use.”
Meta responded to the suit by stating that it simply provides services and tools for users to publish their own content, and that none of the services and tools used are illegal themselves.
“Selena’s death is a tragedy, and Meta deeply sympathizes with Plaintiff and her family,” Meta wrote in its June motion to dismiss the suit. “But the First Amendment prohibits forcing a communications platform to adopt or enforce particular content policies or practices.”
Jim Wagstaffe, who is among the attorneys bringing a separate lawsuit against Instagram, said pushback is growing in Congress against the protections that Section 230 affords social medial companies.
Just as the First Amendment doesn’t protect newspapers from libel prosecution, some lawmakers are coming around to the idea that Section 230 doesn’t protect social media companies from product liability, he said.
But David Anderson, a retired law professor at the University of Texas School of Law, told the Texas Tribune last year that outright repealing Section 230 would spell the end of social media sites altogether.
“In my opinion, Sec. 230 definitely needs to be limited, but how to do that without killing a lot of useful communication is very difficult,” he told the publication in an email. “It would require some extensive hearings, careful drafting, and contentious trade-offs.”
The Information Technology and Innovation Foundation argues that any solution requiring social media platforms to review content is unworkable because of the massive volume of content on the sites.
Also complicating the issue is that Republicans and Democrats want to replace Section 230 with diametrically opposed frameworks, Mark Lemley, a Stanford Law School professor, told The Texas Tribune.
“Democrats want more content moderation targeting hate speech and misinformation. Republicans want to apply the First Amendment to social media sites even if they are private actors,” he said.
Meanwhile, lawsuits continue to pile up. Eventual rulings in the cases will shed light on how much of a shield Section 230 will prove to be for social media companies.
“The only certainty of this litigation is it’s going to be a big fight, and a long fight,” Bergman said. “To paraphrase Thomas Hobbes, it’s going to be nasty, brutish—and long.”
Lawmakers who participated in the 2021 siege of the U.S. Capitol may be ineligible for reelection under the Fourteenth Amendment's bar on rebels holding office, the Fourth Circuit said Tuesday in the latest blow to controversial North Carolina Rep. Madison Cawthorn, who recently lost his primary to a challenger.
The appellate judges were careful to clarify that they had "no opinion about whether Representative Cawthorn in fact engaged in insurrection or rebellion or is otherwise qualified to serve in Congress," and also hadn't considered whether states could regulate who could be on the ballot. They only took on the narrow basis of the appeal — whether a 150-year-old law allowing Civil War secessionists to run for office applied in the present day.
The case stems from an effort by several voters in Cawthorn's district to challenge his candidacy by alleging that the Republican congressman was no longer qualified to hold office because of his involvement in the Capitol riot on Jan. 6, 2021.
Many rioters had attended then-President Donald Trump's "Stop the Steal" rally earlier in the day, where Cawthorn fired up the crowd with unsubstantiated claims of election fraud. That, his constituents told North Carolina's election board, rendered him ineligible for office thanks to the Fourteenth Amendment's bar on candidates who "have engaged in insurrection or rebellion."
In an attempt to head off the challenge, Cawthorn sued election officials in federal court. He sought an injunction on an upcoming administrative hearing, arguing the proceeding would violate his First Amendment right to run for office, his due process protections, Congress' discretion to police the qualifications of its members, and a Reconstruction Era law that allowed former Confederates to run for office.
That law, the 1872 Amnesty Act — which lifted the constitutional ban for most former members of the Confederacy only four years after the Fourteenth Amendment passed — was the basis on which a lower court judge granted Cawthorn's injunction bid in March.
And so at the heart of the appeal was whether the Amnesty Act also applied to future insurrectionists, U.S. Circuit Judge Toby Heytens said in Tuesday's order, adding that, "To ask such a question is nearly to answer it."
"Consistent with the statutory text and context, we hold that the 1872 Amnesty Act removed the Fourteenth Amendment's eligibility bar only for those whose constitutionally wrongful acts occurred before its enactment," he wrote.
Tuesday's decision marked another loss for the first-term congressman. Last week, early numbers indicated he had lost his primary reelection contest to a challenger. During his two-year term, he has also faced allegations of sexual assault, been in hot water with the Republican establishment over his claims his colleagues invited him to orgies and used cocaine, and tried to explain away a sexually explicit video that surfaced online.
Cawthorn had attempted to abandon the case, arguing it was moot due to his apparent election loss. But Judge Heytens said the appeal was still live because the primary winner, Chuck Edwards, had not yet been certified. Now, it's up to the district court to decide if the case is moot.
The appeal emerged from a thick "procedural underbrush," Judge Heytens said.
The challenge to Cawthorn's candidacy was complicated by a dispute over North Carolina's newly redrawn congressional district, but once the maps were drawn again, a new group of voters filed an identical challenge to his qualifications.
Both groups of voters tried to join Cawthorn's lawsuit, and were denied by U.S. District Judge Richard E. Myers II. But the circuit court eventually let the appeal proceed, finding Judge Myers had abused his discretion in not allowing the voters to intervene, and that they had a "personal stake" in the outcome of the case, which the defendants — the elections board members — opted not to pursue further.
The appellate court also faulted the lower court judge for finding Cawthorn had standing to sue thanks to his First Amendment claim, but granted his injunction based on the Amnesty Act. But the judges ultimately found that Cawthorn had standing to sue regardless.
And Judge Heytens found that determining the scope of the Amnesty Act was within the court's purview in spite of its political implications, because the court was not determining whether to "disqualify Representative Cawthorn from future federal or state service," or whether he was qualified to run for reelection.
"Instead," Judge Heytens wrote, "the question before us is: Regardless of whether Section 3 would otherwise disqualify Representative Cawthorn, does the 1872 Amnesty Act nevertheless authorize him to serve?"
He found that it did not, basing his analysis on the intricacies of grammar in the Amnesty Act.
He noted the law's language lifted "political disabilities imposed" by the Fourteenth Amendment, and that the use of the past tense in the word "imposed" "refers to things that have already happened, not those yet to come." The congressman, they noted, hadn't argued "that this elementary rule of conjugation has changed in the last hundred and fifty years," and "ventures no direct rebuttal to this straightforward principle of grammar."
Cawthorn had argued that "imposed" functioned as a participle in that sentence, but Judge Heytens broke out his Webster's Dictionary, noting participles still come "in both 'past' and 'present' varieties." He also pointed out that the law's use of the word "removed" implied that it was "taking away something that already exists rather than forestalling something yet to come."
Nor did the legislation's historical context support the lower court's finding that it was a blanket ban on that provision of the Fourteenth Amendment, Judge Heytens said. The aptly named act was granting amnesty from that provision, but was "laser-focused on the then-pressing problems posed by the hordes of former Confederates seeking forgiveness," the court found, adding that the fact the law included a carve-out keeping the bar on high-ranking confederates was also noteworthy.
"Having specifically decided to withhold amnesty from the actual Jefferson Davis, the notion that the 1872 Congress simultaneously deemed any future Davis worthy of categorical advance forgiveness seems quite a stretch," Judge Heytens wrote.
The other two judges on the panel wrote lengthy concurrences as well, focusing on whether courts should have gotten involved in the case in the first place.
U.S. Circuit Judge Julius Richardson said he agreed with the decision to nix the lower court's injunction, but he said the problem was not the logic of the ruling, but its very existence. The question of Cawthorn's qualifications for office, he said, was a political question that fell outside a court's jurisdiction. He added that Article I of the Constitution barred a court's jurisdiction over federal lawmakers' qualifications, because "the House of Representatives here is not just a judge, it 'is the sole judge of the qualifications of its members.'"
And, he argued, the Fourteenth Amendment's bar on insurrectionists holding office essentially set a constitutional qualification for lawmakers no different from age or citizenship. That meant that by finding the Amnesty Act applied to Cawthorn, the district court was making an illicit judgment call about his qualifications.
In his concurrence, U.S. Circuit Judge James Wynn Jr. called this a "flawed blueprint for courts to stonewall the reasonable efforts of states to prevent frivolous candidates from running for congressional office." He disagreed that Congress had sole jurisdiction for determining candidate qualifications, noting the Constitution makes no mention of would-be lawmakers. Judge Richardson's reasoning would mean that no state could regulate its candidates or ballot, Judge Wynn said, and the result would flout the Elections Clause, which assigns the "times, places and manner of holding elections" to state legislatures.
"It stands to reason that as a matter of common sense, and as a matter of comity, our Constitution permits States to have a say in regulating the candidates who seek to represent their interests and the interests of their citizens," Judge Wynn wrote.
Free Speech For People, an advocacy group that represented the voters in the appeal, issued a statement saying the ruling would have an impact beyond the Cawthorn case.
"This ruling cements the growing judicial consensus that the 1872 Amnesty Act does not shield the insurrectionists of January 6, 2021 — including Donald Trump — from the consequences of their actions under the Fourteenth Amendment, and provides no basis to block state proceedings seeking to exclude insurrectionists from the ballot," the statement said.
Meanwhile, Cawthorn's attorney, James Bopp, said he couldn't understand why there was any ruling at all.
"The case is moot since the primary," he said in an email. "I am very surprised that the Fourth Circuit issued an opinion on a moot case."
U.S. Circuit Judges Toby Heytens, Julius Richardson and James Wynn Jr. sat on the panel for the Fourth Circuit.
Cawthorn is represented by James Bopp Jr. of the Bopp Law Firm.
The voters are represented by Pressly McAuley Millen of Womble Bond Dickinson LLP.
The case is Madison Cawthorn v. Barbara Lynn Amalfi, case number 22-1251, in the U.S. Court of Appeals for the Fourth Circuit.
Boston Children’s is home to the first U.S. pediatric and adolescent transgender health program.
The Boston Children’s Hospital, which operates the first transgender health program for children and adolescents in the nation, was forced to lock down after conservative conspiracy theorists spread misinformation on an account known as “Libs of TikTok.” After a bomb threat Tuesday, police descended on the hospital, barricading families inside and leaving them waiting outside for updates, the WCVB reports. The threat was downgraded two hours after the initial call, but police have not yet disclosed the facts surrounding the threat or any additional information.
Since then, the hospital has taken down videos pertaining to the procedures it performs on transgender patients to try and stem harassment of staff and patients and is coordinating with law enforcement. Similar harassment has been reported by hospitals across the country.
Health care as a human right is a principle building momentum in the current political climate, where proposals for universal health care have again taken center stage. A healthy society is composed of healthy individuals. Yet, civil rights violations resulting in many racial and ethnic disparities still need to be addressed in order to deliver equitable health care and coverage.
Health Care: A Civil Rights Issue
White supremacy influenced an evolving, private, job-based, health care infrastructure that deliberately excluded the Black population, preventing it from sharing in its societal benefits. Our health care history is another disgraceful chapter where race often determines treatment and outcomes. The actual desegregation of the medical system did not eliminate the disparities in societal benefits between whites and Blacks.
Since slavery was abolished, segregated health care determined your standard of living, your longevity, and your dignity in death. Charitable health organizations, formerly devoted to helping the “poor and dispossessed,” disavowed themselves of the obligation to help Black people in need of health care, instead helping “citizens only” during the Reconstruction Era.
In the late 1800s, while Germany was creating Europe’s first national health care system, America staked deeper roots in segregated private health care and charity-based systems. While other nations focused on access and equality, our deep-seated attachment to America’s racial hierarchy tied us to a health care system encompassing racial disparities by design.
Decades of Jim Crow, lynchings, and unceasing injustice birthed the civil rights movement, incorporating into its mission systemic transformations including desegregated hospitals and government-funded health programs. The National Association for the Advancement of Colored People (NAACP) and the National Medical Association (NMA)—the Black iteration of the then segregated American Medical Association (AMA)—fought for the passage of Medicare and Medicaid. When Medicare funds were distributed to almost every hospital providing care to elderly patients, formal segregation in hospitals ended, mandated by the Title VI nondiscrimination clauses. Not only did this funding end hospital segregation, but it radically changed health outcomes in a divided system where the color of your skin determined your quality of treatment and your mortality.
My generation doesn’t recall a pre-Medicare, pre-Medicaid America. These programs were victories of a greater civil rights strategy to desegregate and equalize health care and coverage. Yet, discourse surrounding the movement that ushered in the Civil Rights Act is centered around voting rights, education, and integration. Title VI of the Civil Rights Act protects people from discrimination based on race, color, or national origin in programs and activities that receive federal assistance. The Civil Rights Act served as a health care bill.
Role of Health Insurance in Reducing Racial Disparities in Health Care
Insurance status is a fundamental predictor of the quality of care a patient receives. Generally speaking, private insurance delivers higher-quality and more consistent care than publicly funded insurance programs like Medicaid and CHIP (Children’s Health Insurance Program), and being completely uninsured ranks last for quality and consistency of care. Racial disparities in health coverage account for barriers to health care access faced by many Black, Indigenous, and people of color (BIPOC). These inequalities result in disproportionate gaps in coverage, inconsistent access to services, and poorer health outcomes.
The long-standing lack of civil rights for the Black, Latinx, and American Indian populations directly impact the persistent health inequities they experience. Civil rights are the social determinants of health, affecting the organization of resources such as housing, education, transportation, employment, and the justice system. In turn, societal distribution of these resources affects injury, illness, disease, and health. The enforcement of civil rights legislation affects the distribution of health risk and safety factors and resources that enable prevention and provide treatment. Equitable access to health care provides palpable health benefits.
Public health insurance programs play a major role in providing affordable health care and better outcomes for BIPOC. A sordid history ensured that Black Americans are one of the most economically depressed groups in the United States, experiencing illness at very high rates, with a lower life expectancy than other racial demographics. Since the enactment of the Civil Rights Acts of the 1960s, Black Americans have made advancements in education, both in high school and college graduation rates, and their earning potential has increased as well. However, their pay still lags behind that of their white counterparts doing the same work.
While the majority of Black Americans have health coverage, they are also the group most likely to fall into the “coverage gap”: Their earnings are too high for Medicaid eligibility, but not high enough to take advantage of subsidies under marketplace plans.
We can improve health outcomes for BIPOC, increase their life expectancies, and reduce the racial and ethnic disparities in care by restructuring health coverage sources. Because many BIPOC do not have health insurance throughout adulthood, it prohibits them from accessing health care. The greater likelihood of losing health coverage they once held is responsible for significant disparities in the health care BIPOC receive. Frequent changes in coverage, often intertwined with employment transitions, cause interruptions in care and bring unfamiliar providers.
How Employment Took On Health Coverage
The marriage of health insurance and employment was a product of the escalating World War in 1942, when rising prices and competing wages caused considerable inflation in the United States. Desperate to stabilize the economy, FDR’s administration produced the perfect storm: The National War Labor Board (NWLB) instituted a wage cap, leaving employers searching for alternatives to pay to lure new hires; the NWLB exempted health insurance from that wage cap; the Internal Revenue Service declared employer contributions to health insurance premiums tax-free.
Health insurance was a tough sell in the first third of the century. But upon improved medical care (penicillin!) and the tax policies and wage cap that serendipitously linked employment and health insurance, in just 12 years, the number of people with private health insurance exploded from 8 million to 92 million.
The Folly of Employment-Sponsored Health Coverage
Relying on employment for society’s health coverage is flawed. This system is expensive, produces “job lock,” promotes increased spending on unanticipated costs, and is inequitable and deficient.
As a result of the tax exemption for employer-sponsored health coverage premiums, the federal government lost income and payroll taxes, estimated to be $260 billion in 2017 alone, far more than the government costs of the much-maligned Patient Protection and Affordable Care Act (ACA). Health insurance costs are also unanticipated in an unregulated market in an age when people live longer and health care has improved. This system encourages increased spending on health insurance premiums, which have been consistently growing for over a decade. Wages, meanwhile, have remained constant.
Workers becoming dependent on their employment because it is inextricably linked to their health coverage is known as job lock. Because of job lock, employees reject better offers and resist entrepreneurship out of fear that market plans or Medicare will pale in comparison to their existing coverage. Productivity suffers because of job dissatisfaction; workers are not best matched to their positions, which undercuts labor market mobility.
The inequities between lower-income and higher-income workers are vast, owing to the tax disparities, the rates of offer and acceptance of employer-sponsored health coverage, and the benefits those plans conferred upon them. Employees with higher-paying jobs reap more benefits from the employer-sponsored health coverage system than those with lower incomes. Over 40 percent of Americans pay no taxes and, of those people, 60 percent are employed. For them, employer-sponsored health coverage does not provide any tax benefits at all. Lower-income workers who do pay taxes enjoy smaller benefits than do higher-paid employees because of their low tax rates. Many lower-income workers are not offered employer-sponsored health coverage at all. Conversely, employees with higher-paying jobs are most likely to have employer-sponsored health coverage, and, because of their higher tax bracket, the tax exclusion will confer a larger benefit. In the lowest income quintile, approximately one-third of employees are offered employer-sponsored health coverage with an acceptance rate of only 20 percent. However, over 80 percent of employees in the top quartile of those highest paid are offered, and accept, employee-sponsored health coverage. Over time, the value of the benefits received by the higher-income employees grew at a much faster rate than the value of benefits to lower-income workers.
Our health care system is fragmented, and employee-sponsored health coverage contributes to the disorder. No one set of policies govern health care in America, nor do we have an agency dedicated to overseeing it. The system is decentralized and poorly organized. Smaller employers struggle to negotiate group plans because they lack bargaining power. Large employers that do have the bargaining power often self-insure to save on health care costs and are unsuccessful.
One consequence of the coronavirus on public health that is seldom raised is the failure of an employer-sponsored health coverage system to support society when there is a sudden, very high rate of unemployment. The pandemic has rooted out many truths. Now, even some of the well-employed are scrambling for health coverage. The social determinants of health, housing, education, and employment surrendered BIPOC to the frontlines again. Many are working low-wage, essential jobs, exposing themselves to health risks, while they lack insurance. Health care linked to employment is neither a sustainable nor equitable model.
The union of employment and health coverage contradicts the principle of health care as a human right, treating it rather as a privilege conferred upon those who are well-employed. From this contradiction, the first government-funded health care programs were realized: Medicare, Medicaid, and CHIP.
Racial Inequality as a Product of Employer-Sponsored Health Coverage
Whether you carry health insurance is directly related to where, when, and whether you seek health care, and to your overall health. According to a 2018 analysis of the Census Bureau’s American Community Survey (ACS) by the Kaiser Family Foundation, 66 percent of whites, 46 percent of Blacks, 41 percent of Latinx, and 36 percent of American Indian/Alaska Natives (AI/AN) are covered by employer-sponsored health insurance. The ACA, Medicare, Medicaid, and CHIP narrow the coverage gap. Poor health, obesity, and mortality rate directly correlate to insurance status. Access to good health care for all would reduce instances of chronic and acute illness and infirmity in underinsured communities.
Disparities in health care access exist across all racial and ethnic lines. Health insurance is the financial gateway to preventive care, screenings, disease management, and prescription drugs. Coverage Matters: Insurance and Health Care, published by the National Institutes of Health, explains, “the voluntary, employment-based approach to insurance coverage in the United States functions less like a system and more like a sieve. There are many ways to slip through the holes.”
Requiring employment to be the main porthole through which insurance is sought makes living in a single-parent home a barrier to access. Although many Black Americans work in firms that employ 500 or more workers, they are 10 percent less likely to hold employer-sponsored health coverage than their white counterparts, even though these firms hold significant negotiating power with insurance companies. When insurance loss is a risk, instability affects the patient’s decision-making. They may choose short-term treatment options requiring fewer follow-up visits, postpone visits to health practitioners, or avoid medical care altogether in anticipation of future bills. An ongoing relationship with a health care provider is indicative of a connection to the system, a valuable piece of health care access. That connection is facilitated by consistent health coverage. Precarious health coverage may lead to physician bias in referrals to specialists or against recommending certain treatments with better outcomes.
Confront Racism to Reduce Racial Disparities
Advocates say that providers must acknowledge that race and racism factor into health care to reduce and eliminate these disparities. Better health outcomes require pointed solutions to problems that contribute to the disparities. But it’s not only providers that can change the system. Policymakers, recognizing the role discrimination, bias, and systemic racism play in health outcomes, should consider the social determinants of health when proposing health care reform.
Institutional racism, “the systematic distribution of resources, power, and opportunity in our society to the benefit of people who are white and the exclusion of people of color” affects an individual’s, and, therefore, society’s health. Your home, schooling, environment, and nutrition directly affect your likelihood of earning a degree, exposure to toxins, and your foundation, and are therefore predictors of whether you will secure a well-paying job, be offered employer-sponsored health insurance, have a regular health provider, and develop chronic health problems as you age.
Controlling for factors like income, education level,and genetics, correlations were found between repeated acts of discrimination and increased rates of illness, such as asthma and diabetes, in the Black community. The expectation of racist encounters, in addition to actual lived experiences, cause biological reactions—rapid heart rate and the increased flow of stress hormones—that resemble other stress reactions. Over time, they accumulate and contribute to health problems that might otherwise have been less severe or completely avoided.
Providers that examined disparities in the system, with a critical eye toward racism as a cause, proposed solutions that narrowed the gap. Engaging in routine action to combat racism in health care and eliminate the disparities faced by BIPOC is effective: Develop partnerships with community advisory boards and empower patients to take part in finding solutions; make racial equity a long-term strategic goal by setting regular objectives and providing consistent board dialogue rather than only periodic cultural competency trainings; and prioritize data collection reflecting racial disparities within institutions and by providers. Adopt policy that supports community-based providers, which are disproportionately used by BIPOC. Preventing state efforts to impose restrictions on Medicaid eligibility and incentivizing Medicaid expansion, especially for the southern states, will also close the coverage gap. All levels of government have been derelict in their duty to collect and publish data that would compel action by providers and public health officials. Concrete steps must be taken to improve health outcomes. Without combating racism, we will never be able to fully eliminate the racial and ethnic disparities in health care.
Effect of the ACA on Racial Disparities in Health Coverage
In 2010, Congress passed the Patient Protection and Affordable Care Act (ACA), providing health coverage options capable of narrowing the gap in existing racial disparities. Prior to enactment of the ACA, almost 18 percent of the non-elderly population was uninsured. Medicaid reduced the coverage gap somewhat. BIPOC were far more likely than whites to fall into the uninsured category, the highest rates among Latinx and AI/AN, despite most households having one adult employed full time. Private insurance was financially unattainable in these oftentimes lower-income households, where the workers were not beneficiaries of employer-sponsored health coverage.
The ACA increased coverage rates for all racial and ethnic minorities. In 2014, Medicaid and marketplace coverage expansions resulted in the greatest rate increases. Since 2017, however, the Trump administration has been chipping away at benefits extended to the uninsured. Congress repealed the individual mandate in the 2017 Tax Cuts and Jobs Act, the administration issued guidance encouraging states to apply for waivers allowing additional eligibility requirements for Medicaid, and funds toward enrollment assistance and outreach were cut. Coverage rates stalled and even dropped for some BIPOC, with uninsured rates for whites at 9.8 percent, Blacks at 13.6 percent, Latinx at 27.2 percent, and AI/AN at 28.6 percent.
While coverage rates increased for all minorities after the ACA was passed, states that adopted the Medicaid expansion saw greater rates of growth in coverage compared to states that rejected Medicaid expansion. Most southern states denied their residents Medicaid expansion, disproportionately affecting the large population of Black Americans living there. Conditions preventing the gap from narrowing more between Latinx and whites include the five-year waiting period after obtaining lawful status before Medicaid eligibility and the inability of undocumented immigrants to become eligible for Medicaid or to purchase a marketplace plan.
Objections to the ACA are race-based, echoing disapproval of universal health care in its civil rights era framework. Studies correlate racial bias and opposition to the ACA, congruent to racial biases against Medicaid, a central piece of the ACA.
The fight for universal health coverage is a commonly overlooked pursuit in the civil rights movement. Our employer-sponsored health coverage system was an accident of its era that dovetailed with the white supremacy found in other institutions and should be relegated to the history books. As one of many contributors to racial disparities in health coverage, it is long past its expiration date.
Judge Needs Answers in SD County Voting Rights Suit
A federal judge told a South Dakota county and a Native American tribe they have until Monday to come back with answers to six questions he has in an ongoing suit alleging Lyman County's electoral map violates the federal Voting Rights Act.
U.S. District Judge Roberto A. Lange's questions, outlined in a Wednesday order, deal with such issues as whether the vendor that prints ballots and the software used in elections can accommodate certain ballot changes and if there's enough time before the November election to switch to a two-district system sought by the Lower Brule Sioux Tribe.
Judge Lange said the questions are for clarity and in no way indicate what his final decision will be. After he receives both parties' responses Monday, the judge will issue an order on what changes should be made to a county commissioner system that the tribe claims reduces its representation.
Judge Lange ruled Aug. 11 that the Lyman County at-large electoral system for the county's five-member Board of Commissioners race is likely a violation of the Voting Rights Act because it dilutes Native American votes. He ordered the county to come up with an alternative plan by Aug. 18.
In its revised plan, Lyman County agreed to a new system that would give a new majority-Native district two seats on the board for the 2024 race. The county claimed any changes to the election process for this year were "unworkable," and in violation of the Purcell principle, which argues that court-ordered changes to rules just before an election could confuse voters and make it difficult for officials overseeing the election.
During a hearing Tuesday regarding the county's new plan, the Lower Brule Sioux Tribe asked Judge Lange to either order the November commissioner race be taken off the ballot or to keep the ballot as is but block the county auditor from certifying the results.
In Wednesday's order, Judge Lange said the quickest way to ensure that a Native-preferred member of the commission is elected in 2022 is to keep party affiliations of the candidates on the ballot and split the county into two districts.
"The two Democrats with that party affiliation listed could run for a single commission seat with a four-year term in the Reservation district, and the four remaining candidates with their political affiliation listed could run against each other in the non-Reservation district for two commission spots with four-year terms," Judge Lange wrote in his order.
The tribe sued Lyman County and its five-member board of commissioners in May, saying the county's at-large electoral scheme dilutes Native votes and should be scrapped immediately instead of later this decade, when the county planned to rework its districts.
The tribe said that because of the county's longtime use of at-large voting, no Native American has ever been elected to the board of commissioners, despite making up nearly 40% of the local population.
Counsel for the county and tribe did not immediately respond to requests for comment.
Lyman County is represented by Sara Frankenstein and Richard M. Williams of Gunderson Palmer Nelson & Ashmore LLP.
The Lower Brule Sioux Tribe is represented by Randolph J. Seiler of Randy Seiler Law Office LLC, Samantha B. Kelty, Michael S. Carter and Matthew Campbell of the Native American Rights Fund, Bryan Sells of The Law Office of Bryan L. Sells LLC, Tara Ford and Kathryn Eidmann of Public Counsel and John F. Libby and Sirena P. Castillo of Manatt Phelps & Phillips LLP.
The case is Lower Brule Sioux Tribe et al. v. Lyman County et al., case number 3:22-cv-03008, in the U.S. District Court for the District of South Dakota.
The watchdog group Citizens for Responsibility and Ethics in Washington sued for the documents in 2019.
The U.S. Department of Justice on Wednesday released the 2019 memorandum sent to then-Attorney General William Barr about whether to charge President Donald Trump with obstruction of justice based on the special counsel’s investigation into Russian interference in the 2016 election.
The document’s release comes following a ruling from the U.S. Court of Appeals for the D.C. Circuit last week in which a panel of judges said the record wasn’t part of the agency’s internal deliberations on its decision not to charge the former president with a obstructing Special Counsel Robert Mueller’s investigation, and therefore not protected from disclosure by deliberative-process privilege.
The watchdog group Citizens for Responsibility and Ethics in Washington sued for the documents under the Freedom of Information Act in 2019.
The memo was sent from then Assistant Attorney General Steven Engel with the Office of Legal Counsel, and Principal Associate Deputy Attorney General Edward C. O’Callaghan.
The memo notes that there is a “constitutional barrier” to charging Trump, and cited an OLC opinion from 2000 that determined a sitting president is immune to criminal prosecution under the Constitution.
The memo also states that Special Counsel Robert Mueller’s report didn’t identify any actions taken by Trump that rose to obstruction of justice, including when he fired former FBI Director James Comey in May 2017.
“[M]any of the president’s actions in these matters can readily be explained by his desire to have the FBI director or others in the administration inform the public that he was not under investigation. Indeed, the report identifies substantial evidence that the FBI director’s refusal to make such a public statement was the driving force in the president terminating him.”
After Mueller began investigating Trump for potential obstruction of justice, the former president made an unsuccessful bid to the White House Counsel Don McGahn to fire Mueller. He also asked then-Attorney General Jeff Sessions to reverse his decision to recuse from supervising the probe, the memo states. The memo concluded that neither of the actions amounted to obstruction of justice.
The memo also states bringing charges for obstruction of justice would be difficult to prove because Mueller’s investigation found there was not enough evidence to prove any crime by Trump or his campaign.
“The special counsel’s obstruction theory would not only be novel, but, based on his own analysis, it would be unusual because … the special counsel’s report is conclusive that the evidence developed ‘was not sufficient to charge that any member of the Trump campaign [including the president] conspired or coordinated with representatives of the Russian government to interfere in the 2016 election,’” the memo said. “Given that conclusion, the evidence does not establish a crime or criminal conspiracy involving the president toward which any obstruction or attempted obstruction by the president was directed.”
Read the Memo Here
About 95 percent of people who are incarcerated will return home to their communities.
Prosecutors, although wielding immense power and a prominent platform, have traditionally viewed their roles as relatively confined to the “front end” of the criminal legal system and to a person’s path through that process—deciding whom and what to charge, negotiating a plea or trying the case, and determining upon conviction what sentence to recommend. Reform-minded elected district attorneys (the terms “district attorney,” “DA,” or “elected prosecutor” are used in this article generally to refer to any chief local prosecutor, including state’s attorneys, prosecuting attorneys, and attorneys general with local jurisdiction) have increasingly recognized that many opportunities exist to improve justice system responses during these stages, including rethinking decision making around charging low-level offenses, diverting cases that do not need to be in the criminal legal system, proactively addressing over-incarceration, and recommending alternative responses in lieu of prison. See Fair & Just Prosecution, 21 Principles for the 21st Century Prosecutor 3–11 (2018). These practices are helping create a new normal in the field of prosecution, particularly as communities grow tired of past “tough on crime” approaches that have placed our nation in the dubious position of incarcerating at a rate second to none. Yet, despite strides that have limited incarceration through reforms such as these, there are still roughly 1.8 million people in our nation’s prisons and jails.
About 95 percent of people who are incarcerated will return home to their communities. See Recidivism and Reentry, Bureau of Just. Stat. (BJS). Sadly, our current justice system is not set up to help people live, work, and thrive once they are home. In fact, because of the lack of preparation, support, and services, many formerly incarcerated individuals wind up re-incarcerated. According to a BJS review of criminal history data from 34 states, 6 in 10 people released from prison in 2012 were rearrested within three years. And from its study of people released in 2005, BJS found that 77 percent were arrested again within five years of release.
To reduce the number of people cycling through the system, more must be done while people are incarcerated and during the critical initial weeks and months after release to foster successful reentry into the community. As a growing cohort of reform-minded DAs around the country understands, a holistic view of public safety—and one that best protects our communities—requires engagement, coordination, and support for individuals at every stage of the criminal legal process and beyond to close this revolving door. This means that prosecutors must also step outside of their traditional role.
DAs are often leaders in setting public safety values and priorities in their communities. They can and should use their power and voices to support individuals with reentry, both during incarceration and after their release. DAs can help reduce the number of people cycling in and out of the system by working to limit the inhumane conditions inside jails and prisons and the resulting adverse impact on individuals behind bars, advocating for programming and rehabilitative services in correctional facilities, removing barriers and hurdles that inhibit successful transition into the community upon release, and equipping people for reentry with the tools and opportunities they need to resume their lives. See Cyrus R. Vance Jr., Stanley Richards & Courtney M. Oliva, Reimagining the Role of the Prosecutors in the Community: Prosecutors, Reentry, and Public Safety 8–9 (Inst. for Innovation in Prosecution at John Jay Coll. 2019).
This article will discuss these important strategies and how DAs can (1) use the tools available to them to minimize the harms of incarceration and support programming and services that will help individuals prepare for reentry and reintegration and (2) engage in efforts to support communities and ensure that people are set up for success post-release.
During Incarceration: Minimizing the Adverse Impact of Incarceration and Supporting Reentry Programming and Services
Far too often, conditions behind bars are inhumane and can exacerbate the problems and challenges that precipitate criminal conduct. Incarceration negatively impacts self-worth and personal growth, stifles familial and community connections, and creates barriers to leading productive lives outside of prison walls.
Though the prison and jail population has declined in recent years, the United States still maintains the largest incarceration rate per capita in the world. See John Gramlich, America’s Incarceration Rate Falls to Lowest Level Since 1995, Pew Rsch. Ctr. (Aug. 16, 2021). Correctional facilities remain overcrowded, which adversely affects living conditions, facility management, and the health and safety of those who are incarcerated.
These conditions only worsened during the COVID-19 pandemic. Correctional facilities serve as congregate care settings, with limited access to appropriate protective equipment and materials to maintain sanitary conditions, limited ability for incarcerated people to adopt public health mitigation measures such as social distancing, and relatively low rates of vaccination. Fair & Just Prosecution, COVID-19 and the Criminal Justice System: Improving Conditions of Confinement and Protecting Constitutional Rights (2021).
In addition to conditions that can adversely impact physical health, incarceration can produce long-term adverse psychological consequences resulting from dehumanizing treatment including deprivation of liberty and privacy, witnessing violence, extreme atypical living norms, and separation from others. See Craig Haney, The Psychological Impact of Incarceration: Implications for Post-Prison Adjustment (prepared for the From Prison to Home Conf., Jan. 30–31, 2002). Moreover, there is often an inability to maintain a healthy lifestyle, with limited access to nutritious food, time outdoors, or physical activity, and a woeful lack of access to treatment and resources for individuals with chronic physical health, mental health, and substance use issues.
These psychological and physical harms—when coupled with the isolation from everyday life—make returning to outside society a daunting task, and particularly challenging to navigate on one’s own. The process of returning home often requires accessing information and seeking services from multiple entities for health care, housing, education, and employment—entities that incarcerated people have been disconnected from or without access to anywhere from several weeks to many years. For these reasons, it is critical to provide programming and services inside facilities prior to release that can make the necessary connections and help people prepare for this challenging transition.
As leaders with a mandate to improve community safety, DAs need to be engaged in helping ensure that our correctional facilities and systems are set up to help people succeed upon release. They can do so by working to minimize the harms of incarceration, advocating for people to be treated with dignity and respect while confined, and supporting programming and services that will help prepare individuals for reentry and reintegration.
Promote Humane and Rehabilitative Conditions in Confinement
Prosecutors have a key role to play in advocating for humane and constitutional conditions of confinement, including access to necessary health care and rehabilitative opportunities. As a first step, all prosecutors should visit jails and prisons to get a full picture of the impact of their decisions, as well as to monitor conditions behind bars. They should acknowledge their duty to promote the safety, rights, and just treatment of individuals who are in correctional facilities based on prosecutorial decisions and advocacy. In 2019, over 40 DAs from around the country pledged to visit prisons and jails and to require their line prosecutors do the same. See Fair & Just Prosecution, Building Empathy Through Experience: Elected Prosecutors’ Pledge to Facilitate Officewide Prison, Jail and Juvenile Facility Visits (Jan. 9, 2020). As they noted in this joint statement, “it is vital for prosecutors to understand the true impact of their decisions and to see firsthand the jails, prisons and juvenile facilities in their jurisdiction.”
When unsafe and unconstitutional conditions are identified, prosecutors also have an obligation to shed light on these problems and ensure that an investigation occurs. At times, that might involve referring cases to the U.S. Department of Justice Civil Rights Division for monitoring, prosecution, or other remedies.
In addition to taking measures to advocate for and ensure health, safety, and well-being inside facilities, elected prosecutors can also use their voices to advocate for an entirely different approach to incarceration, one that is guided by principles of human dignity. Fair & Just Prosecution, Lessons Learned from Germany: Avoiding Unnecessary Incarceration and Limiting Collateral Consequences (2020). In countries like Germany and the Netherlands, corrections systems are organized around the central tenets of resocialization and rehabilitation. See Ram Subramanian & Alison Shames, Sentencing and Prison Practices in Germany and the Netherlands: Implications for the United States (Oct. 2013). In these systems, life in prison is not predicated on extreme or harsh punishment—instead it aims to instill fundamental skills that people need to succeed in the community and relies on normalized everyday life and the use of incentives and rewards to create behavior change. DAs should work with correctional and law enforcement leaders in their communities to learn from and adopt these proven models and best practices.
Advocate for Behavioral Health, Educational, Vocational, and Other Programming
While corrections directors and administrators lead and oversee the programming and services provided inside correctional facilities, securing the necessary buy-in, support, and funding to implement new or expanded services is often a challenge. This is where the voice and support of DAs can go a long way. Prosecutors can become champions of behavioral health, educational, vocational, and other services behind prison walls by highlighting their effectiveness in reducing recidivism and urging local and state officials to provide the necessary resources for their implementation.
Behavioral health services within correctional facilities are critical. Research estimates that around 65 percent of incarcerated people have a substance use disorder. And evidence has shown that taking measures to provide comprehensive treatment while individuals are incarcerated is effective in reducing both drug use and reoffending after they return to the community. See Nat’l Inst. on Drug Abuse, Drug Facts: Criminal Justice (last updated June 2020). For persons with an opioid use disorder, these treatment services include offering a choice among all forms of FDA-approved medications for OUD, which have also been shown to reduce the risk of drug overdose death after a person’s release. Prosecutors can advocate for the use of this and other evidence-based behavioral health treatment services in prisons and jails. See Press Release, Law Enf’t Action P’ship & Fair & Just Prosecution, Law Enforcement Calls for Medication-Assisted Treatment Programs in Correctional Facilities (Apr. 3, 2019).
Additionally, prosecutors can adopt policies to help ensure that the treatment and services that people receive while incarcerated will be supported and continued upon their release into the community. In jurisdictions such as Philadelphia, Pennsylvania, and Burlington, Vermont, District Attorney Larry Krasner and State’s Attorney Sarah George, respectively, encouraged access to and implemented policies that encourage the use of life-saving opiate treatments like buprenorphine, as well as harm reduction tools (including use of fentanyl test strips) to detect and prevent potential overdoses. See Brandon del Pozo, Lawrence S. Krasner & Sarah F. George, Decriminalization of Diverted Buprenorphine in Burlington, Vermont and Philadelphia: An Intervention to Reduce Opioid Overdose Deaths, 48 J. L. Med. & Ethics 373 (2020). Research and evaluation of reentry programs and services has shown that interventions that facilitate connections to therapeutic and substance use treatment post-release are some of the most promising and effective. See Grant Duwe, The Use and Impact of Correctional Programming for Inmates on Pre-and Post-Release Outcomes 2–3 (Nat’l Inst. of Just. 2017).
In addition to behavioral health services, educational programs—both traditional and vocational training—have been shown to be among the most effective interventions at reducing recidivism. A RAND study found that people who participate in any kind of educational program while incarcerated are up to 43 percent less likely to reoffend and return to prison. See Lois M. Davis et al., How Effective Is Correctional Education, and Where Do We Go from Here? The Results of a Comprehensive Evaluation (RAND Corp. 2014). These individuals are also more likely to find a job after their release. Prosecutors can advocate for and support initiatives that will help bring resources, funding, and technology to ensure adequate educational offerings within correctional facilities. Recently, for example, the U.S. Department of Education announced the expansion of the Second Chance Pell experiment to reinstate Pell Grant eligibility for incarcerated students. Elected prosecutors should work with corrections officials, and others in their community, to ensure that incarcerated people are aware of this funding opportunity and know how to access it.
Participate in Transitional Planning and In-Reach Initiatives
To better enable people to prepare for life following incarceration, system leaders should work collectively to facilitate connections and provide guidance prior to release that will put people in better positions once back in the community.
DAs should work with other system officials to support such programming. This includes partnering with corrections, probation, and parole entities to identify and support community-based organizations that can provide in-reach and transitional services such as reentry planning. In Massachusetts, for example, the Suffolk County DA’s Office partnered with the Boston Police Department, Suffolk County Sherriff, and State Department of Probation, Correction, and Parole through the Boston Reentry Initiative. This project helped people who were still incarcerated to obtain social service assistance and other planning support to facilitate their return to the community upon release from prison. See Program Profile: Boston (Massachusetts) Reentry Initiative, Nat’l Inst. of Just.: Crime Solutions (June 10, 2011).
Additionally, an individual’s ability to maintain connections with family and community while in jail or prison is a key component to a successful transition back to life in the outside world. DAs should urge the adoption of local and statewide policies that ensure available and affordable prison communications options. In 2015, for example, 51 former attorneys general urged changes to ensure that telephone communications for families of incarcerated people aren’t cost prohibitive. See Peter Wagner & Alexi Jones, State of Phone Justice, Prison Pol’y Initiative (Feb. 2019). Attorneys general and other elected prosecutors nationwide should continue pushing for changes to policies and practices that impose high costs on prison and jail phone calls and other forms of electronic communication. They should also help remove other hurdles to maintaining social connections by, for example, supporting efforts to place individuals in correctional facilities that are close to the communities they come from and mitigating excessive costs or red tape.
After Release: Ensuring Sufficient Support for Success in the Community
Once back in the community, formerly incarcerated people face a number of barriers that impact various aspects of everyday life, ranging from the burdens of oversupervision, to the obstacles created by criminal histories, to lack of coordination among many services and supports. DAs committed to promoting safer and healthier communities need to acknowledge these barriers and play a leadership role in working with policymakers to eliminate and alleviate them.
Work with Probation and Parole to Limit Unnecessary, Excessive, and Ineffective Supervision
Following incarceration, many individuals are placed under some form of community supervision. This supervision has increased exponentially over the past few decades. Today, one in 55 people nationwide is on probation or parole. See Adam Gelb et al., Pew Charitable Trusts, Probation and Parole Systems Marked by High Stakes, Missed Opportunities (2018).
People under supervision must comply with a laundry list of conditions, requirements, and limitations on top of the many other challenges they face as they aim to navigate life post-release. Too often these lengthy and overly restrictive supervision conditions do nothing to improve community safety. Instead, they often lead to re-incarceration for minor noncriminal and technical violations such as breaking curfew or missing an appointment with a probation or parole officer. In 2017, these violations made up a quarter of all state prison admissions. See Council of State Gov’ts Just. Ctr., Confined and Costly: How Supervision Violations Are Filling Prisons and Burdening Budgets (June 2019). Continually crowding our nation’s prisons and jails with individuals who make these small mistakes perpetuates a cycle of criminal legal system involvement and makes it difficult for people to move forward with their lives. Prosecutors should work with judges and probation and parole entities to reduce the number of conditions and requirements that often result in people being reincarcerated for minor rule violations, and they should oppose, rather than reflexively seek, incarceration for such violations.
Elected prosecutors can also employ policies in their offices to reduce unnecessary and excessive supervision. Most reoffending occurs in the initial weeks and months under supervision, so terms that extend on for many years are often counterproductive and interfere with people’s ability to lead independent and productive lives. In Philadelphia, for example, District Attorney Larry Krasner reduced the number of people under community supervision by one-third—from 42,000 people in 2018 to 28,000 in 2021—by implementing policies that guided staff prosecutors not to seek supervision terms longer than 36 months for felonies and 12 months for misdemeanors. See Samantha Melamed, How Philly, the Nation’s Most Supervised Big City, Cut Its Probation Numbers by a Third, Phila. Inquirer (Apr. 19, 2021). And in the Western Judicial Circuit in Georgia, District Attorney Deborah Gonzalez has recognized that there is no evidence that lengthy probation makes communities safer or more secure, and as a result directed line prosecutors to support limiting the length of probation to two years, when statutorily permissible. See Memorandum from Off. of the Dist. Att’y, W. Jud. Cir., Fairness and Equity in the Western Judicial Circuit District Attorney Office (Jan. 1, 2021), in DA Gonzalez Outlines Policies of Reform in Memorandum to Staff, Classic City News (Jan. 2, 2021).
Limit the Impact of Criminal History Records
Criminal history records can follow individuals for a lifetime, impacting housing, education, employment, and even an individual’s ability to remain in this country. These collateral consequences harm not just the individual, but also their family and broader community. There are a number of ways that DAs can mitigate these life-altering adverse effects of a criminal conviction.
Access to housing and justice system involvement are inextricably linked. Having a criminal record creates a host of barriers to securing safe housing, including by potentially restricting housing assistance or impacting credit ratings; imposing limitations on living with certain family, associates, or acquaintances due to community supervision conditions; and limiting job opportunities that would make stable housing affordable. As a result, it is not surprising that people who have been incarcerated even just once are seven times more likely than non–justice system involved people to face homelessness, and people who have been incarcerated more than once are 13 times more likely to experience homelessness. See Five Charts That Explain the Homelessness-Jail Cycle—and How to Break It, Urb. Inst. (Sept. 16, 2020).
Additionally, numerous policies and practices limit or restrict employment prospects and the ability to obtain professional licensure. On average, the unemployment rate for formerly incarcerated people is 27 percent, compared to just six percent for the general population. See Lucius Couloute & Daniel Kopf, Out of Prison & Out of Work: Unemployment Among Formerly Incarcerated People, Prison Pol’y Initiative (July 2018). These are not coincidences; a number of system failures, broken processes, and limitations placed on people with criminal histories add extra hurdles to finding shelter and work. Criminal history records and convictions also further disenfranchise individuals returning to their communities by restricting the right to vote and impacting access to social service benefits.
DAs can serve a critical role in advancing and championing efforts to limit these unnecessary and harmful effects. There is a growing movement around the country to advance “clean slate initiatives,” which allow people the opportunity to seal or expunge records after a certain amount of time—initiatives that many forward-thinking elected prosecutors are embracing and, in some cases, leading. In 2021, over 80 prosecutors and law enforcement leaders joined a statement in support of these important reforms. See Press Release, Fair & Just Prosecution, Joint Statement on Supporting Clean Slate Initiatives (Apr. 2021). In Washtenaw County, Michigan, Prosecuting Attorney Eli Savit established a Conviction Integrity and Expungement Unit. See Washtenaw Cnty., Off. of Prosecuting Att’y, 2021 Year End Report. Capitalizing on Michigan’s recent expungement laws, PA Savit’s office partnered with community organizations to assist individuals with the expungement process and cover costs associated with filing. To inform residents of the new laws and services being provided, the office implemented community outreach efforts to talk to residents across the county and held multiple expungement fairs. In 2021, the office, in collaboration with community partners, was able to assist more than 500 county residents expunge their records. Dallas County, Texas, District Attorney John Creuzot’s office supports similar efforts by partnering with the clerk’s office for an annual Expunction Expo—just last year, the partnership helped to expunge roughly 800 criminal records. See Annissa Obasi & Karen Wise, Dallas County’s Expunction Expo, Tex. Dist. & Cnty. Att’ys Ass’n (July–Aug. 2021). A number of these initiatives have even made the clearing of these records automatic, further reducing individual burdens and barriers and acknowledging that everyone deserves a second chance.
Prosecutors can advocate for other law and policy changes so that people are not impeded by the collateral consequences of convictions. A number of DAs have recognized the importance of the devastating immigration consequences resulting from often minor convictions. Many DAs—including District Attorneys Diana Becton of Contra Costa County, California, Eric Gonzalez of Brooklyn, New York; Michael Dougherty of Boulder County, Colorado, and Larry Krasner of Philadelphia, Pennsylvania, as well as County Attorney John Choi of Ramsey County, Minnesota, and Prosecuting Attorney Carol Siemon of Ingham County, Michigan—have implemented policies requiring that line prosecutors consider a person’s potential immigration consequences when making charging and plea bargaining decisions. See Memorandum from Off. of Ramsey Cnty. Att’y, Prosecution Policy Regarding the Consideration of Collateral Consequences in Plea Negotiations and Sentencing (Jan. 31, 2019); Memorandum from Off. of Dist. Att’y, Contra Costa Cnty., Immigration Policy (May 8, 2019). Prosecutors can also support individuals’ right to vote and sit on juries. Hillsborough County, Florida, State Attorney Andrew Warren created a process to help eligible persons resolve court fines and fees in order to restore their right to vote. See Hillsborough County Restoration of Voting Rights for Returning Citizens, Off. of State Att’y, 13th Jud. Cir. (Dec. 17, 2019). District of Columbia Attorney General Karl Racine and Lincoln County, Maine, District Attorney Natasha Irving have supported efforts to enable people with criminal convictions to serve on juries, with studies and legal scholars demonstrating that jury service is optimally positioned as a means for furthering reintegration into society. See James M. Binnall, Felon Jurors in Vacationland, 71 Me. L. Rev. 71 (2019). These are a few examples of how DAs can engage—but they can and should be doing more, including pushing for legislative and policy reforms that in other ways work to eliminate criminal history barriers to housing supports, education, social services, employment, licensure, voting rights, and jury service.
Foster Community Engagement and Coordination
Just as system leaders and stakeholders play a role in helping prepare people for their return to the community, they also play a role in ensuring that the community is equipped to receive people who are coming home. To this end, a number of states and local jurisdictions have established reentry working groups or councils, organized networks of community groups, individuals, and governmental agencies across a variety of disciplines that have a role or interest in coordinating available services and supports. Having a mechanism in place for coordination is essential to help community groups and service providers adequately respond to and support the reintegration of people following release from incarceration.
As with many aspects of the criminal legal system, prosecutors can’t transform the reentry process on their own. Reentry councils, however, foster collaboration of leaders across the criminal legal system, as well as across health, labor, and other sectors that are critical to post-release success. Elected prosecutors can and should serve as leaders on these councils.
King County, Washington, Prosecuting Attorney Dan Satterberg sits on the Statewide Reentry Council. The Council works to increase collaboration between state and local programs relevant to reentry, improve outcomes for people returning to the community, develop statewide goals, and recommend system and policy changes to improve reentry services and supports across the state. See Wash. Rev. Code § 43.380. Similarly, in San Francisco, California, District Attorney Chesa Boudin serves as a member of the San Francisco Reentry Council, which includes 24 members across the disciplines of social services, youth and family services, housing, public health, probation, and parole that play a role in preparing for and supporting the return of individuals into the community. See Reentry Council, City & Cnty. of San Francisco. As part of these efforts, DAs have the opportunity to support and meet victims, families, and community members and hear their needs and concerns directly. Where such councils don’t exist, DAs can use their role as public safety leaders in their community to bring stakeholders together to create them.
Every contact point and interaction with the criminal legal system impacts not only the lives of those convicted of a crime, but also their families, networks, and society at large. Therefore, the decisions and responses that system leaders employ impact us all as well.
Prosecutors play a major role in the criminal legal system and in the ongoing conversations in their jurisdictions and around the country about improving public safety. Elected DAs have a duty to utilize their power and voice to help facilitate better outcomes for both the individual and the entire community. That duty does not end with a conviction or sentence, but rather extends beyond a case’s disposition to efforts that can support the individual’s reentry and reintegration. During incarceration, prosecutors can urge humane and rehabilitative conditions of confinement, advocate for programming and services to support successful reentry, and participate in transitional planning and in-reach initiatives. And for individuals released back into the community, prosecutors can work with probation and parole to end unnecessary and ineffective supervision, limit the impact of criminal history records, and foster community engagement and coordination.
When prosecutors engage in reentry efforts from incarceration through release and reintegration, they help close the revolving door of our jails and prisons, and as a result enhance public safety and help people lead healthy and productive lives. Many reform-minded prosecutive leaders are rising to the challenge; hopefully their efforts will encourage others to act.
Judge Lynn Hughes had issued a lifetime ban against a female litigator after she won an appeal related to comments he made in an earlier case.
A federal appeals court had stern words for a Texas federal judge who issued a lifetime ban to a female litigator who previously accused him of sexism in the courtroom.
The U.S. Court of Appeals for the Fifth Circuit revoked that ban issued by U.S. District Judge Lynn Hughes of the Southern District of Texas, known as an exclusion order, but it was a concurrence from circuit Judge James Ho that drew attention from the legal community on social media.
“It is apparent from the transcript of the proceedings that the district judge believes he has been falsely accused of discriminating against the AUSA based on her sex,” wrote Ho. “But be that as it may, it’s hard to imagine a less persuasive way for a judge to rebut the charge that he discriminated against a female attorney than by expelling her from his courtroom—not just in one case, but in every case that she may bring for the rest of her career.”
Hughes, a Ronald Reagan appointee, has frequently been criticized for making racist and sexist comments in the courtroom. In 2012, Hughes allegedly made comments about a litigants race, and called the swastika “a symbol of good luck.”
And in 2015, the Fifth Circuit removed Hughes from a qui tam case involving Shell Exploration, because he ignored the panel’s instructions on remand.
In 2018, the Fifth Circuit reversed Hughes and criticized his conduct in a case where the judge faulted a female prosecutor, Tina Ansari, for her handling of discovery in a criminal case and implied that things were better when lawyers wore suits and “girls” were not allowed. The Fifth Circuit ordered the district court’s chief judge to assign a new judge to the case on remand.
And in Wednesday’s opinion Ho joined the list of Fifth Circuit judges who have admonished Hughes.
“Now fast forward to the present case: That same district judge issued a verbal order from the bench, excluding that same AUSA [Ansari] from his courtroom—not only in this case, but in all future cases as well,” wrote the Trump appointee. “By all accounts, the district judge issued the order to punish the AUSA for the USAO’s appellate briefing in [an earlier case].”
According to the government’s brief, the interaction started when Huges excused Ansari, the target of Hughe’s sexism in 2018, from the current case after she walked into the courtroom for a pretrial conference
“I would like to have a reason why I am being excused,” Ansari said.
“I understand you would like that. You will be disappointed,” Hughes responded.
“I’ll be disappointed by your reason?” Ansari followed up.
“No, because you are not going to have my reasons,” the judge responded.
Department of Justice counsel then stepped in and asked for details from Hughes, who said he’d been displeased with the appeals court’s opinion in 2018 and thought the ruling was based on “lies and misrepresentations of the record in the government’s appellate brief.”
Hughes instead stressed the comment about women’s clothes he’d been admonished for earlier were not directed at counsel, but actually “addressed to a different person in the room and was referring to historical facts about FBI agents’ dress.”
And while Wednesday’s panel acknowledged a judge may have the power to issue an order barring counsel indefinitely, they noted a proper set of facts proving such bad faith on behalf of the attorney would be required.
“The district judge relied on his inherent power, but he did not make a specific finding that the AUSA acted in bad faith,” wrote the panel made up of Ho, Chief Judge Priscilla Richman and Judge Kurt Engelhardt.
Ho’s concurring opinion has since gone viral on twitter, leading legal commentator Ken White, aka Popehat, to chime in:
Hughes secretary, Crystina Huerta, said the judge will not be responding to questions about the latest opinion.
The U.S. Department of the Interior lifted a decades-old policy that had prohibited certain Native American tribes from adopting their own water-use rules, which critics said left those resources at risk of misappropriation and was inconsistent with tribal self-determination.
Rescinding the so-called Morton Moratorium — named for former Interior Secretary Rogers C.B. Morton, who enacted the measure in 1975 — will streamline the department's review of new tribal water codes, the DOI announced in a press release.
Interior officials plan to consult tribes on aspects of that process, including the "appropriate delegation of approval authority" as well as approval criteria, according to Secretary Deb Haaland. She said the DOI "cannot be afraid to review and correct actions of the past that were designed to create obstacles for Tribal nations."
"The 'Morton moratorium' is inconsistent with the Department's commitment to upholding Tribal self-determination and the federal trust responsibility to support Tribal sovereignty," Haaland said in the statement. "Today's action underscores our efforts to move forward in this new era."
Advocates for Native American rights, including the National Congress of American Indians, have for years called on the Interior Department to drop its longtime water code ban.
That policy left "tribes vulnerable to misuse and misappropriation of tribal water without a means to enforce their water rights on their reservations," the NCAI said in a 2018 resolution calling for its repeal.
Noting the Morton Moratorium was meant to precede new federal guidance for reviewing tribal water codes, the organization said the policy had "effectively frustrated its original purpose" because the DOI never enacted those rules.
As a result, the NCAI said tribes that didn't put water-use rules in place before 1975 have risked having those resources misused or misappropriated — a substantial threat as state water users face shortages and look to shore up their own access.
"It is in the best interest of the federal government and tribes to be able to develop and implement tribal water codes in order to support tribal self-determination and self-governance over their most significant tribal natural resource — water — in order to provide a sustainable homeland for tribes and their members," the NCAI argued at the time.
The Interior Department took a similar stance in announcing the Morton Moratorium's repeal Thursday, saying the policy "imposed a procedural hurdle" for tribes that wanted to adopt new water-use rules.
"The action has created unnecessary confusion for nearly 50 years regarding the department's willingness to work with and support tribes considering water regulation within their reservations," the DOI said.
Federal regulators will nonetheless retain final authority over water codes for tribes whose constitutions don't give them full sovereignty in that arena.
It remains unclear how the Bureau of Indian Affairs will evaluate any new policies, according to David L. Ganje, a Phoenix-based natural resources lawyer.
Tribes will still "have to go through a bureaucratic dance" with the BIA, he said, adding the agency has been "inarticulate, unresponsive [and] incompetent" in handling Native American water issues in the past.
Still, Ganje cheered the Morton Moratorium's repeal, saying the policy prevented many tribal communities from realizing the full sovereignty they're owed over natural resources on their lands.
Without that authority, he said, many tribes entered water-sharing agreements — both formal and informal — with state partners. Ganje predicted Native groups will be cautious in flexing their new water rights, but said those policies will likely resemble property-rights laws they've always been able to enact for reservation lands.
"It's the right thing to do because these rights exist," he said of the DOI repeal, pointing to the U.S. Supreme Court's 1908 ruling in Winters v. United States that guaranteed water access for Native American reservations. "These are actual water rights."
Over objections from his own administration, Missouri Gov. Mike Parson signed a bill that makes it a crime for the homeless to sleep on state-owned lands, such as under highway overpasses and bridges, reports Business Insider.
Meanwhile, in California, The Guardian reports that as a result of authorities’ crackdowns on homelessness banning people from camping in certain spots, at least 200 unhoused people live outside in a remote stretch of dessert in LA County.
The Missouri law states that “no person shall be permitted to use state-owned lands for unauthorized sleeping, camping, or long-term shelters.” The first offense gets a warning, and the second gets a Class C misdemeanor, punishable by 15 days in prison, or a $750 fine, the St. Louis Post-Dispatch reported.
Cities that don’t “enforce any ordinances prohibiting public camping, sleeping, or obstruction of sidewalks,” can be sued by the Missouri attorney general.
Those “with a higher per-capita homelessness rate than the state average will not receive further state funding” until they lower their per-capital homelessness rate or enforce statewide bans, the legislation said.
The legislation also dictates that cities can only use state and federal funds to build temporary camps for the homeless, instead of permanent housing.
Since the bill’s passage, service providers and cities are scrambling to understand what the legislation means, reports the Missouri Independent.
“There’s been no clarity or guiding information issued from the governor’s office or from any state agencies at this point,” said Sarah Owsley, director of policy and advocacy for Empower Missouri, which advocates on behalf of low-income residents.
“We have reached out to [Missouri Housing Development Commission] staff, who also similarly don’t seem to really understand it.”
According to Owsley, part of Missouri officials’ lack of understanding of how to implement the law stems from the fact that the legislation originated from a template bill written by a conservative think-tank in Austin, Tx., called the Cicero Institute.
In California, The Guardian reports that a crackdown by authorities has forced at least 200 unhoused people to live outside in a remote stretch of dessert in LA County, battling the extremes. The authorities banned people from camping in certain spots, giving out citations for “loitering” and related violations and conducting encampment sweeps that advocates say destroy people’s belongings.
Data obtained by The Guardian shows that the coroner’s office has logged 246 deaths of unhoused people in the city of Lancaster and the surrounding area since 2015, including 18 deaths in the desert and 29 fatalities so far this year.
Residents are scattered in small communities dispersed throughout the desert, with some couples and individuals in isolated pockets on their own while others cluster together for safety and support.