Vape shop companies can't stop Georgia and an Atlanta-area district attorney from cracking down on the sale of cannabinoid products because their attempt to do so runs afoul of the state's constitution, the Georgia Supreme Court held Wednesday.
In a unanimous opinion, the court reversed a trial judge's denial of a motion by Georgia and Gwinnett County District Attorney Patsy Austin-Gatson to dismiss the case brought against them by SASS Group LLC and Great Vape LLC. The trial judge's injunction barring the district attorney from prosecuting sellers of hemp-derived products was simultaneously wiped out.
Writing for the Georgia Supreme Court, Justice Charles J. Bethel said the companies' fatal error was suing both the state and Austin-Gatson under a new constitutional provision that exclusively waives sovereign immunity for the state, local governments and certain officials in declaratory actions. The statute requires cases involving individual defendants like Austin-Gatson, who aren't covered by the waiver, to be dismissed.
"If a plaintiff wants to avail himself of the limited waiver provided by Paragraph V [of the Georgia Constitution's Article I, Section II], then he must bring the action 'exclusively against the state and in the name of the state of Georgia,' which forecloses the option of also suing a state actor in his or her individual capacity in that same suit," Justice Bethel said.
Representing SASS Group and Great Vape, Thomas D. Church of The Church Law Firm LLC told Law360 the ruling means separate complaints will have to be filed against the state and Austin-Gatson "even though both lawsuits would involve identical questions of fact and law."
"This obviously burdens small business owners with limited resources," Church said Wednesday. "They have to pay lawyers to fight for them while worrying whether a local government official will raid their store based on a misinterpretation of the law."
Justice Bethel addressed Church's point in his opinion, agreeing that "our rules of civil practice and related doctrines generally demonstrate a preference that litigants bring all relevant claims related to their case in one action."
But he said the pursuit of a separate complaint against a state official in their individual capacity makes sense under the court's 2017 Lathrop v. Deal ruling "that suits against state officers and employees in their official capacities were indeed barred by sovereign immunity."
"If a lawsuit is filed against the state pursuant to Paragraph V and that suit includes an independent claim against another party not specified in that paragraph's waiver provision, then the entire lawsuit must be dismissed," Justice Bethel said.
The case was prompted by Austin-Gatson's January 2022 promise to prosecute businesses and individuals involved in the sale of controlled substances including 'Delta-8-THC' and 'Delta-10-THC.' Subsequent raids of smoke shops in Gwinnett County, where SASS Group and Great Vape do business, allegedly resulted in the seizure of millions of dollars worth of currency, inventory and other property.
SASS Group and Great Vape sought a declaration that their sale of hemp-derived products is legal. They claim Delta-8-THC, Delta-10-THC and other cannabinoid products are authorized under the 2019 Georgia Hemp Farming Act.
Church said while he strongly disagrees with the court's reasoning and conclusion, the ruling is not a surprise.
"It's consistent with this court's history of vigorously applying the doctrine of sovereign immunity to prevent aggrieved citizens from bringing lawsuits against the government and its officials," he said. "We are weighing our options. As long as government officials are misinterpreting Georgia's hemp laws, we will continue seeking remedies through the courts."
Church, who has other cases related to hemp products pending, noted that the ruling was silent as to the legality of such products. He said he's "confident that the law is on our side."
Marijuana, which contains more of the psychoactive component tetrahydrocannabinol – or THC – than hemp, remains illegal in Georgia. Justice Bethel described as "treacherous" the existing landscape for companies like SASS Group and Great Vape operating amid battles over cannabis-related federal and state laws and public policies.
Justice Bethel's key finding was that an "action" under the sovereign immunity waiver of January 2021 means an entire case or lawsuit, as opposed to individual claims. The vape shop companies tried to protect their case against Georgia by arguing that only claims against Austin-Gatson had to be dismissed.
"Action is ordinarily and more commonly used to mean a case or lawsuit, and other contextual clues within the [Georgia] Constitution confirm that to be the case with respect to the specific provision at issue here," Justice Bethel said.
The Georgia Attorney General's Office, representing the state and Austin-Gatson, did not immediately respond to questions about the ruling Wednesday.
Georgia Supreme Court Justice Charles J. Bethel wrote the opinion, with concurrence from all eight other justices.
Georgia and Austin-Gatson are represented by Christopher M. Carr, Beth Burton, Tina M. Piper, Cristina M. Correia, Stephen J. Petrany and Ross W. Bergethon of the Georgia Attorney General's Office.
SASS Group and Great Vape are represented by Thomas D. Church of The Church Law Firm LLC.
The cases are The State et al. v. SASS Group LLC et al., case number S22A1243, and The State et al. v. SASS Group et al., case number S22A1244, in the Supreme Court of Georgia.
As the halfway point nears for Georgia's legislative session, Peach State lawmakers are considering a handful of bills touching on hot topics that have set off litigation nationwide, including measures that could have wide-reaching impacts on homeless people, gender identity and vaping in public.
A look at a few of the notable bills state lawmakers are considering
Enforcing Public Camping Bans on Homeless People
Under S.B. 62, which the Senate State & Local Government Operations Committee voted 4-3 to advance earlier this month, Georgia cities and counties could be made to enforce bans on "public camping or sleeping" by homeless people.
S.B. 62, proposed by state Sen. Carden Summers, R-Cordele, calls for an audit to examine how state and local governments are spending federal funds allocated to programs for the homeless and gauge the success of those programs and expenses. It would also create a structure for the state to designate camping areas for homeless people called "sanctioned camping areas."
If the bill were to become law, these sanctioned camping areas would be on state property designated by the State Properties Commission or on other property designated by the department for use by homeless individuals for camping, sleeping or storing personal property. The areas could also include "small shelters for no more than two individuals" provided by the agency or organization operating the camping facilities.
Those staying in the sanctioned camping areas would only be permitted to camp and store personal property at areas within the site designated to them, and mental health and substance use evaluations may be offered, according to the bill.
"An owner, operator or employee of a private camping facility designated as a sanctioned camping area pursuant to this code section shall be immune from liability for all civil claims, excluding claims involving such owner, operator or employee's intentional or grossly negligent conduct, arising out of the ownership, operation, management or other control of such facility," the bill says.
As proposed, the bill says counties and cities would be unable to ban or discourage peace officers or prosecutors they employ from enforcing "any order or ordinance" prohibiting unauthorized public camping, sleeping or obstruction of sidewalks.
It also authorizes the state attorney general to bring civil actions against cities and counties who violate the rules, and provides a pathway for citizens to bring whistleblower actions in the name of the state against violating cities and counties.
States including Texas and Missouri have passed similar laws in the last few years prohibiting street camping while diverting money from affordable housing projects to short-term shelter solutions. And cities like Austin, Texas, and Denver have also passed ordinances banning public camping and allowing sanctioned campsites.
Still, legal issues could arise from the Georgia bill, both from those who have experienced homelessness and those seeking stricter enforcement of the bans on public camping.
The unhoused and their advocates have launched suits against local governments in California, Florida, Vermont, Pennsylvania, Idaho, Hawaii and elsewhere to block these sorts of bans, arguing they violate plaintiffs' rights to due process and free speech and to protections against unlawful property seizure. In contrast, business owners have sued to push cities to enforce some of the same ordinances the unhoused plaintiffs' suits are trying to block.
Gender Identity in Crosshairs
S.B. 88, which is currently being rewritten by Summers, its sponsor, would prohibit schools from teaching children under the age of 16 about matters such as gender identities, other than their biological sex, without the express written consent of the child's guardian.
In its current form, the bill would ban any adult acting "in loco parentis" — defined in the bill as any person exercising control over a child as a caregiver or as a member of the staff of any private, public or charter school, social services agency, library, camp or "similar facility or program" — from providing or obtaining from a child information "of a sensitive nature" without the legal guardian's consent. This information, according to the bill, is defined as sex education or information about a child's sexual orientation or gender identity, other than the child's biological sex.
In practical terms, this would require that parents of children in public, private and charter schools opt their children into sex education classes rather than opt them out if they don't want them to participate, as is the current practice in Georgia's public schools.
The bill also says that schools can't change the name, sex or gender of a child under the age of 16 in their official school record without written permission from parents, accompanied by a copy of the student's amended birth certificate reflecting a change in gender.
The bill would also bar adults from instructing, educating or training a child while dressed "in a sexually provocative manner, applying current community standards" as determined by their workplace without the express written permission of the child's guardian.
The bill currently proposes punishing those who don't comply with its terms by withholding funds from public and charter schools, rendering private schools ineligible to be a qualified, or accredited, school or program, sanctioning certificated personnel and revoking the tax-exempt status of nonprofit organizations.
Sarah Hunt-Blackwell, an attorney and Georgia First Amendment policy advocate for the American Civil Liberties Union, testified before a state Senate committee on the bill earlier this month, saying the measure would violate the First Amendment rights of students and educators by censoring "LGBTQ+ questions, concerns and experiences."
According to Hunt-Blackwell, the Constitution protects "nonintimate conversations about gender identity and sexual orientation, even in schools," and S.B. 88 runs afoul of that protection. It is also a content-based regulation, she said, meaning that it limits speech due to the topic, idea or message being expressed.
"Extensive case law has established that content-based regulations are presumptively unconstitutional unless they serve a compelling state interest. There is not a compelling interest in limiting nonintimate sex and gender discussions in schools," Hunt-Blackwell said. "If anything, rising suicide rates among LGBTQ+ teens suggests the compelling interest that educators need more resources for these students and should be having more of these conversations, not barring them altogether."
Critics have compared S.B. 88 to so-called don't say gay laws already in place in other states that try to stop teachers from discussing LGBTQ issues with students. One such law in Florida, H.B. 1557 or the Parental Rights in Education Act, has faced widespread opposition from students and parental groups who say it is an "unlawful attempt to stigmatize, silence and erase LGBTQ people in Florida's public schools," and that its "sweeping, vague ban" on discussing sexual orientation or gender identity amounts to a chilling effect on free speech.
Earlier this month, a Florida federal judge dismissed a lawsuit brought by parents and students against Florida's law, saying they couldn't point to a "concrete future harm" that would be prevented by stopping its enforcement.
Summers did not immediately respond to requests for comment.
A Bill to Bar Gender Surgery on Minors
Another Summers-sponsored bill, S.B. 140, hopes to bar hospitals and other licensed health care facilities from providing minors with certain surgical procedures and gender-affirming care, including most sex-reassignment surgeries and hormone-replacement therapies.
The bill, which the Senate Health and Human Services Committee passed 10-4 Wednesday, wouldn't prohibit medication that slows or stops puberty. However, it would ban health care providers from giving transgender minors hormones such as estrogen or testosterone. Doctors would also be banned from performing surgeries on children.
Summers contends that minors are too young to make the decision to take serious medications or undergo the surgical procedures at issue in the bill. He told the committee that S.B. 140 provides a "wait-and-see approach" that would allow them to make those decisions for themselves when they are older.
The bill itself includes language about that same "do no harm" approach, saying that giving a minor with gender dysphoria the time to "mature and develop his or her own identity is preferable to causing the child permanent physical damage."
"The General Assembly has an obligation to protect children, whose brains and executive functioning are still developing, from undergoing unnecessary and irreversible medical treatment," the bill says.
While the bill would prevent licensed health care facilities from providing most sex reassignment surgeries or any other surgical procedures "performed for the purpose of altering primary or secondary sexual characteristics" and hormone replacement therapies to minors if passed, it does include some exceptions.
Individuals born with "a medically verifiable disorder of sex development" or partial androgen insensitivity syndrome would still have access to the treatments under the bill as it is currently written, as would those seeking the treatments for medical conditions "other than gender dysphoria or for the purpose of sex reassignment" as long as the treatments are deemed "medically necessary."
The bill would also allow minors to continue receiving hormone treatments if they began before July 1, when the bill, if signed into law, would take effect.
If the measure becomes law, licensed physicians who violate its rules would be held administratively accountable to the Georgia Composite Medical Board. The bill says they would not, however, be held civilly liable for damages to any person in any civil or administrative action or criminally responsible for injury, death or loss to person or property on the basis that they didn't comply.
In prepared testimony written and shared on the ACLU's website, Hunt-Blackwell spoke out against S.B. 140, saying access to gender-affirming care is medically necessary and saves lives.
"It is intrusive for this body to remove choice from Georgia families and politicize medical care for minors in this state," Hunt-Blackwell said.
New Taxes, Restrictions on Vaping
Sponsored by state Rep. Ron Stephens, R-Savannah, H.B. 191 and H.B. 192 would raise taxes on cigarettes and vaping products.
Under H.B. 191, the tax on a pack of 20 cigarettes would increase from 37 cents to 57 cents, and a "like rate" would be applied for other size packages. That 20 cent increase would be used by the state to "address healthcare issues affecting Georgia residents," according to the bill.
Under H.B. 192, the tax on vaping products would increase from 7% of the wholesale price to 15%. Proceeds from that increase would also be used to address health issues, the bill says.
Stephens did not respond to requests for comment.
Another measure, S.B. 47, introduced by state Sen. Chuck Hufstetler, R-Rome, is aimed at restricting vaping in public spaces.
The state Senate voted 51-3 earlier this month to pass the bill, which would regulate vaping in the same way the state already regulates smoking. The bill is now undergoing debate in the House.
As proposed, the bill would bring rules for vaping in public in line with Georgia's 2005 Smoke-Free Air Act, which prohibits people from smoking in many public places, excluding retail tobacco stores, hotel and motel rooms designated as smoking-friendly, bars that only admit patrons older than 18 and privately owned convention rooms.
Any person found smoking in areas outlawed by the Smoke-Free Air Act commits a misdemeanor and can be fined $100 to $500. If S.B. 47 becomes law, the same would be true for vapers.
After being strip-searched, pepper sprayed, and spending the night in a cold cell following her arrest at a peaceful protest a day earlier, Cherri Foytlin walked out of a Baton Rouge parish jail on July 11, 2016, to a waiting crowd of fellow activists and friends who welcomed her with water and snacks. While it was a comfort to see familiar faces, a darker thought clouded her mind: that the officers who mistreated her might never be held accountable.
The day before, officers with the Baton Rouge Police Department wielding automatic weapons, shielded by body armor and gas masks, and flanked by an acoustic weapon mounted on an armored vehicle swept through a quaint neighborhood in Louisiana's capital arresting dozens of people, including Foytlin, who were peacefully protesting the death of Alton Sterling, a 37-year-old Black man killed by officers of the same department days earlier.
Videos and news reports show cops throwing protesters to the ground, pinning them, and locking their wrists with plastic zip ties. Foytlin and several other people who were arrested that day, including Karen Savage, a reporter for Juvenile Justice Information Exchange, and Blair Imani, a queer, Black and Muslim activist, said they were brutalized by cops.
"I didn't think there would ever be justice for us. I didn't think it was possible," Foytlin said at a press conference in late February.
But when veteran Louisiana civil rights attorneys John Adcock and William Most teamed up to file a pro bono lawsuit a year later on behalf of the arrestees, it gave Foytlin and her peers a glimmer of hope that, one day, the police department responsible for their treatment would be held accountable in a court of law.
"This case was important in part because people have a right to protest," Most told Law360. "They have a right to assemble and there's freedom of press. And sidewalks and streets are traditional forums for speech."
The case, Imani v. City of Baton Rouge, zeroed in on aggressive BRPD tactics that the protesters said violated state and federal laws.Though the trial opened at the beginning of February, the proceedings came to a sudden conclusion on Feb. 15, one day before jurors were scheduled to hear closing arguments, as the Baton Rouge city council agreed to pay $1.17 million to the 14 plaintiffs to end the dispute.
For the protesters and lawyers, the suit was never about money. Instead, they said it was about one of America's sacred rights: to challenge government action without fear of retribution.
"So many Americans think if you protest, then you will get arrested. One goes with the other. And that's not the way it is. It's not the way it's supposed to be," Adcock said. "This frightens me."
Strong Evidence Made the Difference
The attorneys said the strength of evidence pointing to excessive use of force by BRPD officers and alleged falsification of documents ended up being the winning card in the case.
"I think the key thing about what got us to this point is they just looked so bad at trial," Adcock said. "It's hard to lie over and over when you have so much video."
According to city policy, "any protester who complies with an order to clear the streets should not be arrested by the Baton Rouge Police Department." Yet on July 10, 2016, the plaintiffs were arrested despite complying with police orders, which were sometimes inconsistent, Most said during a press conference at the end of the case.
At trial, plaintiffs argued that the police lacked evidence that they had failed to obey orders — first to get off the streets, then to get off the sidewalks, then to disperse.
"The testimony at trial was that it was impossible to comply with," Most said. "You cannot at the same time stay out of the streets and disperse from the area, because the only way to leave the area would be by crossing the streets."
The plaintiffs presented transcripts of police communications to support their claims that officers were bent on arresting anyone in the area, regardless of where they were standing. Cell phone videos, meanwhile, showed officers entering the front yard of a home without a warrant and arresting a group of protesters who had taken refuge there with permission from the house's owner.
In order to book a suspect into the East Baton Rouge Parish Prison, police must produce either a warrant or a sworn affidavit from an officer specifying the crimes a suspect is accused of.
While affidavits need to be filled out after an alleged crime is committed, timestamps on internal BRPD emails showed police arrived at the protest with affidavits that were already filled out with nearly identical facts and charges.
"An officer, typically, can only write down what they arrested someone for after that has happened," Most said.
Adcock told Law360 that discovery is crucial in determining litigation strategy. And in the Imani case, attorneys were able to compare what was on the affidavits with the actual facts of each arrest, and were able to find a pattern.
"A light bulb goes off about, 'There might be something else here to zero in on,'" Adcock said.
A Crowd Control Policy Used to Target Speech
The plaintiffs presented evidence aimed at showing that BRPD applied a punitive "civil unrest" protocol to crack down on protesters precisely because they were protesting the conduct of its officers in Sterling's killing. Once BRPD decided the protests fell under that policy, officers were required to disperse the crowd, even if peaceful, and were given broad powers to effectuate a mass arrest and to use deadly force, Most said.
Former officer Michael Barrow admitted at trial that the policy was applied to the protesters "because of the content of their speech."
But trial exhibits and testimonies also exposed a lack of preparation by Baton Rouge cops, particularly in using military-grade equipment. A BRPD representative admitted the department used a long-range acoustic device, a sonic weapon known to cause disorientation, even though it had never used it before not gave officers safety guidance. One officer said they were "messing around" with the weapon when they used it on protesters at close range, attorneys said.
"What we didn't know until trial was the description that they were just 'messing around' with it," Most said. "That was quite significant testimony."
BRPD's Failure to Reform
Civil rights lawyers acknowledge that winning civil rights cases against law enforcement in Louisiana isn't easy. The state is located within the Fifth Circuit, where courts are among the most likely to accept assertions of qualified immunity, a doctrine that largely protects police officers from civil suits. In addition, Louisiana is one of only three states to have a one-year statute of limitations for bringing civil lawsuits challenging official misconduct in federal court.
In building their case, attorneys in the Imani case took a deep dive into past actions by the BRPD that drew legal scrutiny.
In 1961, the department arrested the leader of a group of Black students protesting racial discrimination and law enforcement policies. The man was peacefully standing on a sidewalk at the time of the arrest. That case, Cox v. Louisiana , ended in a U.S. Supreme Court ruling in 1965 that the man's arrest violated his freedom of speech.
"It is rare that you have as on-point a case from the U.S. Supreme Court about the city that you're contemplating suing," Most said. "We knew that there was a history that this particular department had, and so we followed up on those leads in our depositions."
During their research, the plaintiffs' legal team discovered other examples of alleged BRDP misconduct that echoed their own claims. In 2005, for example, the complaint said that out-of-state officers from Michigan and New Mexico who'd volunteered to help police the city as its population surged were pulled out after they reported witnessing "egregious misconduct and potentially criminal actions by BRPD officers."
"There was a complete failure of accountability," Most said. "Not a single officer was investigated for any conduct related to the protests — not the signing of false affidavits, not the forgery of officers signatures, not excessive force."
Only one officer, Marcus Thompson, was investigated for "conduct unbecoming of an officer" by internal affairs for actions during the protest. His transgression was complaining to colleagues that BRPD was violating the protesters' constitutional rights, according to court documents.
Three attorneys representing BRPD officers in the Imani case — Joseph K. Scott of Joseph K Scott III Attorney at Law, and parish attorneys Deelee Morris and David Lefeve — declined to comment. A spokesperson for the city did not respond to requests for comment.
Emotional Testimony and Hard Facts
Most and Adcock made no secret of it: They were nervous to take their case to a Louisiana jury.
In the Fifth Circuit, questions over the application of qualified immunity often end up before juries — a strange situation given that it typically touches on highly technical aspects of the law that would be better reserved for judges, Most said.
The challenge for plaintiffs' attorneys challenging police misconduct is to both present a compelling case to jurors and to give them enough information about the law to properly evaluate qualified immunity claims.
Adcock said federal judges also walk a fine line in deciding either to reject a qualified immunity defense early on in a case — a move that allows defendants to appeal to the Fifth Circuit, effectively pausing a suit for as long as a year and a half — or allowing the claims to reach a jury.
During the Imani trial, the plaintiffs each took the stand to share their experiences both during and after their arrests. Some jurors showed clear sympathy for the plaintiffs, their attorneys said. One of them openly cried while hearing the testimony of Nadia Salazar Sandi, a protester who recalled fearing she would be killed while in custody. According to the group's complaint, Salazar Sandi's hands turned purple as zip ties she was bound with when she was arrested cut off blood flow.
But the plaintiffs' legal team made a deliberate choice to focus less on their clients' physical and psychological damages, which, although severe, could have been seen by jurors as exaggerated. Instead, the attorneys centered their case around the actions of the officers.
"We made a decision to not minimize these injuries, but certainly to understate them, and focus on the behavior of the police," Adcock said. "I think that was one way that these jurors maybe just sympathized with the protesters."
The plaintiffs are represented by William Most, David Lanser and Veronica Barnes of Most & Associates, and John Adcock of John Adcock Law LLC.
The respondents are represented by Joseph K Scott III of Joseph K Scott III Attorney at Law LLC.
The case is Imani et al. v. City of Baton Rouge et al., case number 3:17-cv-00439, in the U.S. District Court for the Middle District of Louisiana.
The overuse of plea bargains in criminal prosecutions is undermining the criminal justice system's integrity, exacerbating its racial inequality and creating "perverse incentives" to prioritize expediency over fact-finding, according to an American Bar Association report issued recently
While the use of plea bargains does offer benefits, including efficiency, certainty and the encouragement of defendants to cooperate, those benefits come at a high cost, one of the report's authors, Belmont University College of Law professor Lucian E. Dervan, told Law360 on Tuesday.
"The plea bargaining system is broken, but it can be fixed," said Dervan, who is co-chair of the ABA Plea Bargaining Task Force. "But to fix the problem, we need to adopt procedures and policies that create more transparency and lead to a fair and more just system."
The bipartisan task force, which includes prosecutors, defense attorneys, judges and academics, has been examining persistent problems with the system of plea bargaining since 2019, according to its report.
"The fact that that sort of diverse group was able to reach some consensus about both the problems that we are experiencing and some potential solutions to those problems provides some hope that the plea bargaining system can be reformed," said Georgia State University College of Law professor and task force co-chair Russell Covey.
One of the biggest reasons reforms are needed is that the current system allows prosecutors to use "impermissibly coercive incentives" to get defendants to agree to plea bargains — even when they're innocent, according to the report.
Tactics that include imposing harsher sentences on defendants who choose to go to trial, holding those who reject plea deals in pretrial detention and selecting charges that offer prosecutors bargaining power are just some of the ways defendants are coerced into pleading guilty, the report says.
These tactics can result in innocent people taking responsibility for crimes they didn't commit, according to the report, which points out that the Innocence Project found that 11% of prisoners exonerated through DNA evidence had actually pled guilty to their crimes.
"We were very concerned about the prevalence of coercive incentives in plea bargaining practice, particularly large differences between a plea offer and what will be faced if one's convicted at trial," Dervan said. "Those incentives can be so coercive that it would be irrational for even an innocent person to turn down the deal."
Concerns about innocent defendants pleading guilty are heightened by the fact that in many states, defendants are barred from challenging their convictions based on new evidence of their innocence once they have accepted a guilty plea, according to the report.
Those rules also affect the law itself, according to Covey, who noted that much of the law is generated through appellate court decisions.
"The kinds of cases that appellate courts have an opportunity to review and to weigh in on are cases that are tried. So if most cases aren't getting tried, there are fewer opportunities for new law to be made by appellate courts," Covey said.
The criminal justice system's overreliance on plea bargains also promotes and exacerbates racial inequality, according to the report.
There are significant racial disparities when it comes to prosecutors' decisions to drop or reduce charges, with white defendants being 25% more likely than Black defendants to have their most serious charge dropped or reduced as part of a plea deal, according to Dervan.
Black defendants are also more likely than white defendants to be held in jail before trial, increasing the likelihood they will take a plea deal, according to the report.
Plea bargains also make it difficult to uncover that racial bias and other police and prosecutorial bias or misconduct, the report added, because such misconduct is usually unearthed through pretrial litigation or at trial.
"The reality that so few pretrial matters are litigated leads prosecutors to be less critical of their witnesses and less willing to scrutinize the strength of their cases, knowing that they won't be held accountable at trial," the report says. "Defense lawyers, similarly, are less likely to properly investigate cases, knowing their clients will almost certainly take a plea."
The report offers several recommendations for making the use of plea bargains fairer and more transparent, such as abolishing the use of mandatory minimum sentences and placing strict limits on sentencing differentials, so that any imbalance between a sentence offered prior to trial and a sentence received after trial is "reasonable and non-coercive."
Charging decisions, bail and pretrial detention also shouldn't be used to pressure defendants into pleading guilty, according to the report.
"Charges should never be selected, amended, or enhanced solely or even partially for the purpose of enhancing leverage in plea bargaining, or for creating significant sentencing differentials between plea and trial outcomes," the report says.
The report adds that defendants who plead guilty should still have access to the mechanisms of post-conviction review, and defendants should be made aware of all the collateral consequences that may stem from pleading guilty to a crime, such as being barred from working at certain jobs, serving on a jury and voting.
Finally, courts, prosecutors and public defenders should all be collecting data about the plea bargaining process, with a particular focus on racial and other biases in the system, according to the report.
"A common critique of the modern plea bargain system is how little we know about it," the report says, adding, "Sometimes the system is not even transparent to the very defendants whose fate is being negotiated."
Many of these recommendations would require more resources to be allocated to the criminal system, the report's authors acknowledge, but they would also result in a fairer and more legitimate criminal justice system.
That fairer system wouldn't "just have a significant impact on the defendant who falsely pleads guilty and their family and their community," Dervan said. "It also has a significant impact on the victim, whose interests go unvindicated when the wrong person is in prison, and potentially in some cases that we've identified where the actual offender goes on to commit further offenses in part because authorities stop looking for that person because they've got someone who falsely pled guilty in their place."
A Missouri appellate court said on Tuesday that the state's cannabis regulator failed to adhere to its own rules when it rejected a company's application to open a medical marijuana cultivation facility.
The 2-1 majority said that the Department of Health and Senior Services neglected to inform applicant MO Cann Do Inc. that its initial application lacked a certificate of good standing as a corporation and that it therefore could not reject the company's subsequent applications.
"We agree that the Commission's decision was unauthorized by law in that the DHSS failed to follow ... its own regulation, when it failed to specify in the deficiency letter that [MO Cann Do's] application was incomplete for lack of a certificate of good standing," Judge James M. Dowd wrote for the majority.
The opinion reverses a lower state circuit court's decision that affirmed an Administrative Hearing Commission ruling against the company, and the appellate panel remanded the matter with a directive to send the case back to the commission for reappraisal.
According to the opinion, DHSS informed MO Cann Do that its August 2019 application for a grower's license was deficient and identified certain missing pieces but did not specify precisely that the company needed a certificate of good standing as a corporation issued by the Missouri secretary of state.
In the initial and subsequent applications, MO Cann Do included a certificate of incorporation, which it asserted in court filings was sufficient to show it was authorized to do business in Missouri.
"We find that the DHSS's rejection of MCD's application impermissibly violated its own regulation which it has no authority to do," Judge Dowd wrote.
The DHSS regulation at the crux of the dispute holds that the agency "will notify" an applicant if their submission is incomplete and "will specify" what is missing, according to court documents.
In a dissent, Judge Kelly C. Broniec wrote that the regulation was "merely directory, and not mandatory," and that the DHSS it did not give up its ability to reject applications if it failed to heed the letter of the rule.
"[I]t stands to reason that DHSS would not want to waive its authority to deny an application simply because it failed to identify one non-compliant or missing item from a lengthy application, even an item seemingly as trivial as a certificate of good standing," Judge Broniec wrote.
Counsel for MO Cann Do and a spokesperson for the DHSS did not immediately respond to requests for comment on Tuesday.
The case was heard by Judges Kelly C. Broniec, Philip M. Hess and James M. Dowd of the Missouri Court of Appeals.
MO Cann Do is represented by Eric Walter, Paul L. Brusati, and Jeffery T. McPherson of Armstrong Teasdale LLP.
The Missouri Department of Health and Senior Services is represented by Jason K. Lewis of the Missouri Attorney General's Office.
The case is MO Cann Do v. Missouri Department of Health and Senior Services, case no. ED110329, in the Missouri Court of Appeals, Eastern District, Division Four.
Washington has taken steps in recent years to create laws and regulations aimed at keeping the Evergreen State green, but as its population and climate vulnerabilities grow, it's facing environmental issues involving water quality, wildlife and agriculture, raising compliance concerns for industry and fueling conservationist missions.
The state has worked to strengthen environmental standards and practices, but green groups say lawmakers and regulators could go further. At the same time, industry representatives warn of the costs of what they see as new burdens, such as installing new air pollution control technology or better controlling agricultural waste.
In the thick of things are the Evergreen State's environmental attorneys, who are fielding a growing number of increasingly complex questions from clients about these issues and more, said David Weber, managing principal of Beveridge & Diamond PC's Seattle office.
"Washington State is a laboratory for muscular environmental regulation, from its economywide Climate Commitment Act to the enactment of the strongest state chemicals bill in the country," Weber said. "For environmental lawyers, the relentless pace of new legislation and rulemakings highlights the importance of being proactive in monitoring and unpacking proposed rules for clients."
Here are four pressing environmental issues in Washington state.
Under the Climate Commitment Act's "cap-and-invest," or cap-and-trade program, the state sets a greenhouse gas emissions cap and then decreases the limit over time to meet statutory reduction requirements. This program, along with other fuel and hydrofluorocarbons programs, is supposed to help the state meet a goal of net-zero carbon emissions by 2050. The CCA was passed in 2021, and the state spent last year gathering emissions data from entities covered by the law. The first cap went into effect in January, and the first credit auction will be held this month.
Robert Smith, a partner in K&L Gates LLP's Seattle office, said Washington's cap-and-trade program has similarities to California's but includes some modifications. Before Washington's law passed, California was the only single state operating such a program. On the East Coast, 12 states participate in the Regional Greenhouse Gas Initiative.
Smith said attorneys and businesses are going to have to be on top of their game to make sure they're complying with the new regime.
"It's going to be a pretty significant thing this year, in terms of making sure that regulated entities that need to comply are aware of those requirements, and learning how to comply in terms of striking a balance between getting emissions numbers down on their own … and needing to go to the auction," Smith said.
One of the unique features of Washington's program is that proceeds raised from the auctions will go to fund new investments in climate resiliency programs, clean transportation and efforts to address health disparities across the state.
"There is a very strong environmental justice component in how this is set up," Smith said. "So there will be an Environmental Justice Council that will provide recommendations on where the money goes."
The Duwamish River
On its way into Seattle's Elliott Bay, the Duwamish River travels through a heavily industrial area. More than 40 businesses are negotiating how to split the estimated $1 billion cost of cleaning up this lower portion of the river, including The Boeing Co. and the Port of Seattle. The port is suing Boeing in federal court, alleging the aerospace company is not paying its fair share. The lawsuit is currently stayed pending further negotiations between the parties.
Beveridge & Diamond's Weber, who represents several parties in the cleanup that are not involved in the lawsuit, said the litigation potentially jeopardizes the ability of all parties to resolve the matter.
As the Lower Duwamish process plays out, community and green groups are focused on starting to clean up another part of the river in Seattle, the East Waterway, said Patti Goldman, a senior attorney at Earthjustice who is based in Seattle.
She said there has been some conflict between the government agencies involved in overseeing any cleanup and Earthjustice's client, the Duwamish River Cleanup Coalition, about what is needed at the site.
"Seattle became the city it is because of the Duwamish River, but the river suffered as a result," Goldman said. "Cleaning up the river and reducing the air pollution that plagues this overburdened community will challenge lawyers to ensure implementation of bedrock environmental laws and evolution of those laws to incorporate environmental justice principles."
Puget Sound, which, along with waters in Canada, is part of the Salish Sea, provides Washingtonians and visitors with an abundance of resource and recreation opportunities. But the sound and its wild inhabitants have suffered from industrialization, development and population growth in the area. The U.S. Environmental Protection Agency, the Washington State Department of Ecology, Native American tribes and many other local community and business groups have been part of an ongoing conversation about how to improve the sound. Significant funding, new regulations and voluntary boat measures are some of the ways the organizations are approaching the problem.
Congress doles out money to the EPA as it works with state agencies, local and tribal governments, universities and nongovernmental organizations to help protect and restore Puget Sound.
One of the key issues in the sound is the survival and health of the Southern Resident population of orcas.
"Orcas and the salmon they eat are the essence of Washington state and the Salish Sea, existential to the tribes, at the core of the state's history, and our moral responsibility now that they are on the Endangered Species list," Goldman said. "Our environmental laws have the potential to recover orcas and salmon, but only if they are faithfully implemented, which is why lawyers are critical to their fate."
Several programs are aimed at helping the killer whales, from reducing noise and traffic on the sound to mandating that sightseers keep a greater distance from them in the water.
Water quality is also an issue for the sound. In November, the EPA laid out a final rule to reestablish water quality standards for Washington state that were rolled back during the Trump administration and are aimed at protecting people who eat fish and shellfish caught in the state.
And last year, a D.C. federal judge upheld an EPA finding that allowed Washington to prohibit commercial and recreational vessels from discharging their sewage into Puget Sound.
State regulators, the agricultural industry and environmentalists have been battling over concentrated animal feeding operations for a few years now. Agriculture accounts for about 12% of Washington's economy, making the sector a major component, according to the Washington Farm Bureau, an industry trade association. From wheat fields and apple orchards to dairy farms and aquaculture, the state boasts a diversity of agricultural endeavors.
Conservation groups secured a victory in their challenge to waste discharge permits used by dairy farms in Washington after a state appeals court found the approvals don't provide adequate protections to ensure excessive manure runoff doesn't pollute nearby water sources.
In December, the state Ecology Department reissued the general permit after incorporating the court's feedback, but the same coalition of green groups that challenged the authorization the first time say the department once again failed to issue a permit that meets legal standards. They have filed a new administrative challenge that could also end up in court.
"Ecology is failing at doing what the law requires in terms of actually doing analysis of what the reasonable treatments are and requiring each facility to implement those," said Andrew Hawley, a senior attorney at Western Law Environmental Center based in Seattle, who is representing the green groups.
Aquaculture is big business in Washington, too, and is going through its own period of regulatory reform.
Smith of K&L Gates noted that the state is one of the few in the nation that allow private ownership, sale and leasing of tidelands. But in November, the Washington State Department of Natural Resources announced a ban on commercial finfish net pen aquaculture on state-owned aquatic lands. The move aligns Washington's net pen salmon aquaculture policy with those of Alaska, California and Oregon.
Cooke Aquaculture Pacific LLC and the Jamestown S'Klallam Tribe have filed separate lawsuits in state court challenging the state's move.
"This is a pretty significant policy change," Smith said. "How this litigation plays out may also tell us a little bit more about the parameters of DNR authority generally as a title lessor, and how much leeway they have to terminate leases or not renew leases, which also could be generally applicable to things like shellfish aquaculture that also has a lot of state leases currently in Washington."
Serving Subpoenas! By Twitter?
A Bankruptcy Court Served a Subpoena Via Twitter. Will This Catch On?
In recent years, social media has slowly creeped its way into the legal industry, transforming decades-old practices. While some firms have turned to social media platforms to find new business opportunities, others are finding innovative marketing strategies and there are now “legal influencers.”
Courts have too, become creative with their use of social media, in some perhaps unexpected ways. Recently, for instance, the U.S. Bankruptcy Court for the Southern District of New York authorized served a subpoena via Twitter one of the founders of Three Arrows Capital, a Singapore-based cryptocurrency hedge fund, which is going through chapter 15 bankruptcy proceedings.
Courts documents show that while foreign representatives of Three Arrows were previously unable to serve subpoenas on the founders “as their whereabouts are unknown,” the founders were active online on their email and Twitter accounts.
To be sure, serving a subpoena via social media is a fairly new concept, and has only been authorized sparingly in the past. But experts say that it could become more common as the industry continues to adapt its proceedings to technological advancements.
“I think these recent decisions permitting service via social media and alternate means show how the judiciary and judges [are] coming up with approaches to address the challenges associated with service of process,” said Bobby Malhotra, member of Winston & Strawn’s E-Discovery & Information Governance practice group.
“While personal service I think is still the overwhelming norm, there are and there may be circumstances where a service by social media or alternate means is really the best available or viable option—or potentially the only option,” he added.
In fact, Malhotra pointed to other examples of service of subpoena being authorized over email, voicemail message and even fax. And such instances have slowly started picking up in recent years.
“As social media continues to penetrate every facet of our society, it will impact our legal system. There is this growing trend of service of process being accomplished through alternative means, and it may become more common,” Malhotra said.
Of course, while other exceptions could be on the horizon, broader adoption of alternative means of service may ultimately depend on amendments made to the Federal Rules of Civil Procedure.
And those could still be years away, said Brett Burney, principal at Burney Consultants and eLaw Evangelist at Nextpoint.
“I don’t see that there’s going to be a major change in this approach until the federal rules are amended to somehow say, this can be delivered by any means necessary, including electronic means,” Burney noted.
Still, judges turning to creative solutions could be just the “catalyst” for change needed, he added.
Of course, going forward, whether other judges follow the same approach will depend on the reliability—and security—of such alternative methods.
“I think it remains to be seen how courts and the legislature will balance litigants’ need for documents and information with due process concerns of ensuring notice, personal service,” Malhotra said.
Susan Crumiller and Carrie Goldberg are law firm owners, survivors, and best friends whose firms represent plaintiffs in sexual abuse and harassment litigation. Now, the two have teamed up to create a co-counsel initiative called Survivors Law Project
Brooklyn-based attorneys Susan Crumiller and Carrie Goldberg recently teamed up and launched the Survivors Law Project as a platform to represent plaintiffs in sexual abuse and harassment cases. Both are survivors themselves—this mission is very personal to them. They sat down with NLJ to discuss how litigation, the judiciary and juries have evolved since the onset of the #MeToo movement and what’s at stake now since the state of New York enacted The Adult Survivors Act in May 2022 creating a one year window to bring claims against abusers without statute of limitations.
You recently started the Survivors Law Project as an avenue to help sexual assault victims—this mission is also very personal to you—tell me more about it.
New York state passed this really historic legislation that gives survivors an unprecedented opportunity. There are so many of us who spent our whole lives thinking, we never had a shot at justice, that we just had to get over what happened to us and move on. And this new law changes everything in terms of validating our experiences and affirming that what happened to us is something that deserves justice.
Carrie and I, our firms are just a couple floors apart in the same building. We have some overlap in our practice areas, and we collaborate a ton. We started thinking, how can we really honor the importance of this? How can we help as many survivors as possible?
We came to the realization that joining forces would really make us unstoppable.
We’ve gotten numerous inquiries and our teams have been working side by side signing up cases, and it’s been so rewarding and wonderful to be this resource.
The creation of both of our firms stems from personal trauma. We built firms that directly target the kinds of harms that we ourselves faced. We are both survivors of sexual assault. The ASA [Adult Survivors Act] providing an opportunity for victims to sue their offenders, to have to pay, that hits us in a very personal way.
Every time somebody calls the Survivors Law Project or sends us an email, it validates that we chose the right profession.
From when you started your firms to the #MeToo movement until now, how much of an increase in sexual assault cases have you noticed?
I started my firm in 2014 and Susan started hers two years after. Since the time that we both started our firms as solo practitioners, we both built teams of over a dozen each. Our firms grew very rapidly because of the demand for the services that we provide for people that were victims of stalking, sexual assault, sextortion or revenge porn.
At the time I was one of the few attorneys doing that kind of work and started this new path and was pretty astonished—it was astonishing how many people needed my services very soon. And I don’t necessarily attribute that to us having a more dangerous society.
I think the fact that having attorneys like us demonstrate that you can actually take your offender down.
Carrie basically single-handedly invented what is now a pretty established legal field. When she started, nobody was doing this—now revenge porn is a common term. And lots of firms now offer the services that that Carrie invented. She invented the claims that didn’t exist. She helped [form] the statues that exist today because she said this is a gap in the law.
I will never get tired of saying it because I just don’t think it gets said enough: the main barrier to survivors seeking justice is the shame, guilt and self-blame that we all have a tendency to carry.
I think that any woman knows countless survivors. So many of my closest friends are survivors, so many of my family members are survivors. It’s so rampant and there are way more claims than could ever be brought in any courthouse.
The main barrier is that there’s still a huge stigma, a huge shame and feeling that this is a personal, private thing that we shouldn’t talk about publicly, that we take on ourselves and we carry it around ourselves.
To the extent that more survivors, both men and women, [come forward], we are starting to chip away that shame—every day we fight sex abuse and publicize these cases. It’s a slow process because attitudes are slow to change, but it is happening.
And so many of our clients never thought this was something they could talk about, something that was real, something they had the right to do anything about. I think that the law and the culture will continue to change. But the laws changing in and of itself mean nothing, unless we all confront this shame issue.
We also want survivors to know that what has changed is this notion that that sexual injuries are injuries that were intentional. Our clients were intentionally harmed, people who are in car accidents, who the trip and fall, there’s just a general recognition that our courts’ doors are open for them and that they deserve compensation if somebody’s hurt them.
Yet when it comes to sexual assault, where the harm was intentional, there’s so much more judgment on survivors to be suing—especially because our courts deal with money, they take money from the wrongdoer to hand to the victim, and there’s this idea that that victims of sexual assault, if they’re suing, then they must be gold diggers or they must be liars, or they must be opportunists or crazy.
We’re here to dispel that myth and to say vengeance is OK.
If people who are sexually assaulted or raped, something of significant, irretrievable value was taken, and there’s no harm that requires justice more than that.
The #MeToo movement was a big step forward. How far have we come, and how far do we still need to go?
With the #MeToo movement, the pendulum swung and people ask, did it swing too far? The answer is no; it was a small fraction of a correction.
What we’re going to see with the Adult Survivor Act cases in New York is, those cases go to trial, and we are going to have more informed juries, who are more receptive to the notion and more sophisticated about consent and sexual assault. A lot of people wait to take legal action – we still have a long way to go, but bringing cases and making rapists in the institutions that protect them pay, is huge.
One huge gap that still remains in the public knowledge is just how survivors respond to an attack. There are still so many myths out there and such a lack of understanding about how survivors process what happened to them. And so many common behaviors are misinterpreted as somehow undermining survivors’ credibility.
One of the biggest gaps is, we still think, ‘she texted him back.’ That somehow undermines her credibility. Instead of saying, for survivors, it’s a very common coping strategy to try to minimize in your own mind what happened to you because it’s such a painful truth to confront.
The defense attorneys perpetuate that, they often say, there are inconsistencies that the victims were too drunk to remember, that it was somebody else.
They have a very limited bag of tricks. One of the funniest things about having done a lot of sexual assault cases is being so able to predict the tactics of the defense attorneys: First they say, ‘I’m a big supporter of #MeToo—but this particular case has just taken the #MeToo movement too far.
Wait, Carrie, you forgot, “I have daughters … as a father of a daughter.’ They always talk about their daughters. I’m wondering, ‘do your daughters know that they’re being used as a scapegoat for your representation of sex abusers?”
How has the judiciary evolved with the increased number of these cases, have you seen a change in how juries perceive these cases?
We’re both very passionate about these issues, as you can tell. I think there’s still a very racist view of sexual assault—white women and white fragility are privileged in the discourse.
White, straight victims are prioritized and given more attention, more sympathy. Whereas, unequivocally black women, women of color and transgender women are significantly more likely to be the victims of sexual violence.
Disabled people are statistically so much more likely [to become victims of sexual violence] as well.
When we think of a victim, of a survivor, we focus on white, on privileged, straight, when really the typical portrait of a survivor is a marginalized person. We as a society have been very white-focused and this is no exception.
Has the judiciary evolved with the increasing amount of cases you are bringing?
It’s pretty astonishing, there’s still many judges that ask “why were you with that person? Why did you take those pictures in the first place? You need to be more careful. You need to use better judgment.”
My office has been doing some judicial training about gender-based violence. The response from judges and their eagerness to really understand the patterns has been overwhelming. We know that the judges want to get it. And we’re looking at them to recognize that these are as important as anything else on their docket, that we need them to move through the court systems quickly.
How important is it for you to come together as two trailblazer women attorneys to tackle these issues?
Susan and I were baby lawyers together. When we graduated from law school, we both went to work for a non-profit in Manhattan representing low income, marginalized people. Our friendship has been absolutely critical. Susan and I are constantly seeking support from one another. In our firms, we work on separate things but the one area where we overlap is sexual assault cases. We’re actually building something together – it’s been fun and challenging.
Litigation is a very creative process. It’s a safe place for us to share ideas. Is it different from working with men? My experience very broadly has been that many men tend to take things too personally. Men’s egos are often too much in the way.
Looking ahead, how do you see your work evolve throughout 2023?
I only feel hope and optimism about 2023. This is the year, when we’re going to see our survivors opening up the courthouse gates and demanding what’s theirs.
Personally, my hope is that people will come forward and bring these cases.
I feel the same optimism completely. My only potential concern is similar to what happened with the Child Victims Act in New York, where there are people who didn’t know about it. It’s very fortunate that New York City actually also happens to be opening up its own window starting in March for both adult and child survivors—that will be for two years because the Survivors Law Project has actually gotten a lot of calls from people who were child victims, but they didn’t know about the Child Victims Act during that window.
And states that have not created a look-back window for adult or children’s survivors need to get on it because they’ve got a population of people that have been injured and have never been able to get redress.
Former President Donald Trump has called the Black prosecutors investigating him—including Fani Willis, the Fulton County district attorney leading an inquiry into his interference with the 2020 election results in Georgia—“racist.” Willis has said that she requires extensive personal security following death threats from Trump supporters.
Former President Donald Trump held his first presidential campaign events on Saturday, against the heavy backdrop of four major criminal investigations into his behavior while in and out of office.
In the lead-up to his campaign launch, Trump personally attacked prosecutors and the investigations they are leading as politically biased and a “hoax.”
“These prosecutors are vicious, horrible people, they’re racists and they’re very sick, they’re mentally sick. They’re going after me without any protection of my rights by the Supreme Court, or most other courts,” Trump said in January 2022 of New York Attorney General Letitia James and Manhattan District Attorney Alvin Bragg, both of whom are Black. Bragg is reportedly approaching a decision about whether to charge Trump with illegally paying money to silence porn actress Stormy Daniels about their relationship.
Trump has also called other Black prosecutors investigating him—including Fani Willis, the Fulton County district attorney leading an inquiry into his interference with the 2020 election results in Georgia—“racist.” Willis has said that she requires extensive personal security following death threats from Trump supporters.
This public castigation is helping elevate prosecutors, who typically hold fairly low profiles, into the national spotlight.
The Conversation spoke with Jessica S. Henry, a criminal justice expert at Montclair State University, to help navigate the role of prosecutors and the potential risks of making their positions fair game on the presidential election circuit.
What role do prosecutors serve in the justice system in the U.S.?
Prosecutors are among the most powerful figures in the courthouse. They are the people who decide whether to bring charges, what charges to bring, whether to negotiate a plea bargain and what those terms would be. Very few criminal cases ever go to trial. And so prosecutors wield tremendous power.
Are these posts typically considered political?
Electoral politics have always been part of the backdrop of prosecution. District attorneys–the top prosecutors in a state—are elected in 45 states. And in contested elections, the rhetoric is typically about who is the toughest on crime. Prosecutors who can prove that they’re the toughest typically win. Tough, in these terms, is defined as getting convictions and securing long sentences.
There are examples of prosecutors who used their official position to try to augment their standing in an election. Mike Nifong, for example, was the district attorney in Durham, North Carolina, in 2006, and he was also up for election in a community with a large Black population. Chrystal Magnum, a Black woman, claimed that she had been raped by white lacrosse players at Duke University. Nifong pursued rape charges against these students. But Nifong lied to the media, to the defense and to the courts—and ultimately, the charges against the Duke lacrosse players were dropped. And in a very rare occurrence of accountability for prosecutors who engage in misconduct, Nifong was disbarred.
How have prosecutors become more political in the last few years?
In 2016, about 70% of all prosecutors up for election ran unopposed. In 2022, about 12 of the 30 district attorney election races were considered competitive. So, these are not often contested positions.
And yet, there has been a shift recently, in which people who think that criminal justice can be done differently and done better, choose to run for the head district attorney position. And those with a more reform-oriented agenda—often called progressive prosecutors—have been getting elected around the country. This has brought some really important changes involving who is prosecuted and for what–and also more political opposition from those who want to maintain the status quo.
How does this change the way prosecutors go about their work?
Prosecutors are supposed to be ministers of justice, immune from outside influence, but they’re also people with biases and vulnerabilities. So, when they’ve got high-profile figures like Trump screaming their names out in the national media, it has to increase the pressure on them and how they use their discretion and power. When a case plays out on the national stage, prosecutors may wind up paying attention not only to the specific facts of the case being featured in the spotlight, but also how it is being perceived by their constituents and portrayed by the national and local media.
It can sometimes be deeply problematic when people outside the prosecutor’s office try to dictate prosecutorial decision-making for political gain. In Texas, for instance, lawmakers have proposed a bill that targets prosecutors who refuse to prosecute people who have abortions or parents who seek transgender-affirming medical care for their children. That puts a lot of pressure on prosecutors who are trying to do what they believe is right under the law.
On the flip side, prosecutors are supposed to represent “the people.” So it can be important that the community make its perspective known, such as in the case of police shootings of unarmed people, and the public’s desire for accountability by having prosecutors criminally charge officers for their actions.
In states where prosecutors are elected, they are subject to the same electoral politics as any other elected official. It would be naive to say that prosecutors are completely immune from that external pressure. Of course, we’d like to think that prosecutors, in their commitment to justice, only prosecute cases that are justified and only when there’s enough evidence. But that doesn’t always happen, and sometimes those decisions wind up reflecting local politics rather than the evidence in a particular case.
Do you see that as a risk, potentially, for prosecutors right now?
I don’t know whether we’re going to see attacks on prosecutors as part of a larger trend in national elections. But every time Trump goes after one of these institutional players, like a prosecutor or even a judge, what he’s really doing is destabilizing the public’s ability to trust government institutions.
There is research that shows that the criminal legal system is only as robust and legitimate as the public perceives it to be. While there are many flaws in the criminal system, I believe that personal attacks on prosecutors who pursue criminal charges against Trump ultimately harm our democracy.
The federal government on Thursday hit back against the Oglala Sioux Tribe's bid for extra police or funding on its South Dakota reservation, arguing that the 19th-century treaties the tribe relies on don't create a court-enforceable duty to provide a specific amount of funding or number of police.
In a 38-page brief filed Thursday in South Dakota federal court, attorneys from the U.S. Department of Justice and the U.S. Department of the Interior urged the judge to dismiss the Oglala Sioux Tribe's complaint, maintaining that the tribe fails to state a claim for breach of trust, or seek any relief under the Administrative Procedures Act in its bid for more law enforcement and funding for police presence on its Pine Ridge reservation, or create new programs to protect its 40,000 members from a purported "public safety crisis."
While the tribe leans on a trio of 19th-century treaties to argue that the U.S. breached its duties to provide police protection on the 3.1-million-acre Pine Ridge reservation, the federal government countered that the Oglala Sioux fail to point to any language in any of the treaties that create a judicially enforceable duty to provide a specific level of funding for police, much less at the tribe's preferred level.
Furthermore, the Office of Justice Services with the Bureau of Indian Affairs properly rejected the tribe's proposals under the Indian Self-Determination and Education Assistance Act to get more funding for police and criminal investigations, considering the tribe was asking for way more funding than what's allocated for law enforcement presence on Pine Ridge, Thursday's brief states.
"In an effort to forestall dismissal, plaintiff miscasts treaty language that stands in the way of its proposed interpretation and asks this court to make unreasonable inferences about what the treaties require," Thursday's brief states. "Plaintiff's opposition also improperly, and repeatedly, seeks to amend its amended complaint by asserting new factual allegations and new legal claims about the amount of funds the BIA is currently providing to plaintiff under the terms of its ISDEAA contract."
Thursday's brief is the latest development in a suit the Oglala Sioux launched in July, alleging that the U.S. pays for only 41 police personnel to cover the entire reservation that is roughly the size of the state of Connecticut. That police force, consisting of just over 30 officers and eight criminal investigators, means that only six to eight people are on each shift to service the population of 40,000 members, the tribe alleged.
The Oglala Sioux sought a court order last year requiring the BIA to provide emergency relief to hire more police amid a rash of violent crime on Pine Ridge.
Federal treaties require the U.S. to provide such resources, and the government is breaching its obligations, the Oglala Sioux argued, adding that police response time often exceeds 30 minutes, even in circumstances involving domestic violence, firearm activity and other imminent public safety threats.
The U.S. contended that tribe officials have the power to repurpose their allotment of BIA funding for police and could also seek more aid by asking agencies like the Indian Health Service to reimburse certain costs and free up existing dollars for police use.
On Thursday, the U.S. maintained that the tribe's breach of trust claim fails because the U.S. has never taken exclusive control of police presence at Pine Ridge, citing a 1983 Supreme Court ruling involving the Quinault Indian Reservation, in which the high court held that a fiduciary relationship arises when the government assumes such control over Native American-owned forests and properties.
But, without the Oglala Sioux's ability to show that the U.S. assumed exclusive control, there can be no showing of a trust duty, or a breach of that duty, the government argued.
The tribe's ISDEAA claim based on the OJS' declinations of its proposed funding requests also fails for several reasons, the U.S. said. While the Oglala Sioux argued that the OJS didn't give a basis for deciding whether its declinations complied with federal law, the record clearly shows that the tribe wanted way more funding beyond the amount allocated for police on Pine Ridge, the U.S. argued.
The agency's partial declinations were appropriate because the Oglala Sioux's proposals appeared to improperly seek an increase of approximately $3.1 million beyond the secretarial amount allocated for police on Pine Ridge, while the tribe's criminal investigations proposal seeks for an increase of $310,000 beyond the secretarial amount, the U.S. added.
"Agency letters filed with plaintiff's complaint show that the agency properly explained that OST's proposals requested a budget of $9,628,345 for its Law Enforcement program and $2,211,159 for its Criminal Investigation Program, while the Secretarial amounts for the programs were, respectively, $4,026,151 and $1,327,781," the government's brief states.
Nor can the Oglala Sioux obtain judicial review of the amount of money the BIA allocates for police programs on Pine Ridge, because the bureau's decision on how to allocate that money from its yearly lump sum appropriation is based on the agency's discretion, the U.S. said, adding that courts can't intervene in that allocation under the Administrative Procedures Act.
Representatives for the tribe and the U.S. did not immediately return inquiries for comment Friday.
The Oglala Sioux Tribe is represented by Rebecca Kidder, Patricia Marks, Ben Fenner and Conly Schulte of Peebles Kidder Bergin & Robinson LLP.
The U.S. is represented by Alison Ramsdell and Aron Hogden of the U.S. Attorney's Office for the District of South Dakota, Brad P. Rosenberg, James D. Todd Jr. and Hilarie E. Snyder of the U.S. Department of Justice's Civil Division, and Femila N. Ervin, Dondrae N. Maiden, Elizabeth A. Harvey and Kristen D. Kokinos of the Interior Department's Office of the Solicitor.
The case is Oglala Sioux Tribe v. United States of America et al., case number 5:22-cv-05066, in the U.S. District Court for the District of South Dakota.