American Bar Association Hit With Data Breach Class Action Alleging 'Knowing Violation' of Security Standards
The complaint alleges that the ABA's knowing violation of its obligations to abide by best practices and industry standards in protecting customers’ personal information resulted in giving the hacker access to the personal and financial information of up to 1.4 million ABA members.
On Thursday, April 20, the American Bar Association (ABA) notified its members of a March 6, 2023, data breach that resulted in an unauthorized third party gaining access on March 17 to certain usernames and hashed and salted passwords.
The next day, Troy Law PLLC, a New York-based employment firm, filed a class action complaint against the ABA for damages resulting from the breach, alleging that the ABA “allowed widespread and systematic theft” of member information, and that its “actions did not come close to meeting the standards of commercially reasonable steps that should be taken to protect customers’ personal identifying information.”
The April 21, 2023, class action complaint, filed in the United States District Court for the Eastern District of New York, was brought by named plaintiff Tiffany Troy. It alleges that “the March 17, 2023, breach gave the hacker access to the personal and financial information of up to 1.4 million ABA members.”
“The Breach was caused and enabled by Defendant’s knowing violation of its obligations to abide by best practices and industry standards in protecting customers’ personal information,” the compliant states. “Defendant grossly failed to comply with security standards and allowed its customers’ financial information to be compromised, all in an effort to save money by cutting corners on security measures that could have prevented or mitigated the Breach.”
The complaint alleges that the breach exposed both personal and financial information of the affected members, and that “the hackers continue to use the information they obtained as a result of Defendant’s inadequate security to exploit and injure Class members across the United States.” The complaint does not specify how the illegally acquired information allegedly has been or continues to be used. In its initial email notifying members of the data breach, the ABA stated that it had received no reports that anyone’s information had been misused.
The complaint further alleges that the ABA was untimely in alerting members to the breach: “Defendant failed to uncover and disclose the extent of the Breach and notify its affected customers of the Breach in a timely manner. Defendant failed to take other reasonable steps to clearly and conspicuously inform its customers of the nature and extent of the Breach. Furthermore, by failing to provide adequate notice, Defendant prevented Class members from protecting themselves from the Breach.”
Among other things, the plaintiff contends that the ABA members affected by the data breach were injured in the form of “opportunity cost and value of time” associated with monitoring financial and bank accounts following the breach, and costs of obtaining replacement credit and debit cards.
The plaintiff seeks relief in the form of actual, punitive and statutory damages, at least three years’ worth of credit-monitoring fees, attorney’s fees, litigation costs, and pre- and post-judgment interest.
Legaltech News reached out to the ABA for a response. “We do not comment on pending/ongoing litigation,” a spokesperson said in an email.
Regarding the breach itself, the spokesperson noted that “the bad actor obtained only user names and encoded (salted and hashed) passwords—not other personal information and no financial data.”
Contemporary American judges have more in common with medieval monks than just wearing robes.
Today's courts are dominated by formalists. After reviewing decisions from the last several months — about guns, abortion and industrial pollution — they remind me of work by the 13th and 14th century scholastics, dominated by the monks who dictated thinking in Europe prior to the Renaissance.
Scholastics believed they could find truth using formal exercises handed down from Aristotle through men like St. Thomas Aquinas. They typically began their work by studying a book on the topic at hand by a renowned scholar.
Scholastics might then study documents related to that book. They would debate snippets of competing text. They would scrutinize minutely the meaning of individual words and then use formal logic to show that contradictions were merely mistakes of subjectivity by the reader.
This should sound familiar to readers of opinions by contemporary court formalists who prefer labels like "textualist" and "originalist." Read U.S. Supreme Court Justice Clarence Thomas' 2022 opinion holding that requiring license applicants to show the need for a handgun violated the Second Amendment in New York State Rifle & Pistol Association Inc. v. Bruen.
Justice Thomas' approach intentionally did not consider the relevant human condition — mass shootings, out-gunned police officers and the like — and a concurring opinion by Justice Samuel Alito said the dissent erred by considering them.
Instead, Justice Thomas focused on the structure and definition of the words in the Constitution and then invoked scholarship from the "founding era" and the 19th century while laboring over the precise relevance of English history, only to have this antique scholarship disputed and contradicted by the ancient manuscript studies invoked by former Justice Stephen Breyer in dissent.
Indeed, to Justice Thomas it was not appropriate to consider whether the ruling might lead to more shootings. Instead, he wondered whether the court should give more weight to thinking from 1791 when the Second Amendment was adopted or to 1868 when the Fourteenth Amendment that applied to the states was adopted.
Like the scholastics, Justice Thomas focused on this process of scholarship as a way to weed out the subjectivity from his decision and gave us a "true" answer. Justice Alito used a similar approach in his 2022 decision in Dobbs v. Jackson Women's Health Organization where the court held that women had no constitutional right to an abortion.
Justice Alito studied sources about women's historical rights to abortion while noting that it was not appropriate to consider what the court's ruling meant to specific women or the general public.
This other worldliness may dissatisfy many of us in the same way Renaissance humanists were dissatisfied with the pronouncements of church scholastics 700 years ago. It's because, when we look closely, we can see that the writer's preferences decided the issues more than logical compulsion.
In his Second Amendment decision, Justice Thomas continued the practice of giving no force to the words "well-regulated militia," which are often labeled a merely "prefatory clause" to the actual rule — its "operative clause."
He continued to discount the predominately military origins of what it meant to "bear arms." Instead, he echoed earlier rulings giving decisive weight to "the right of the people to keep … arms" and to his selective history.
In Dobbs, Justice Alito chose to rely on the Supreme Court's 1997 ruling in Washington v. Glucksberg that assisted suicide wasn't protected under the Constitution because it wasn't deeply rooted in American history and tradition.
By choosing this precedent over the forward-looking reasoning of cases like the Supreme Court's 1954 Brown v. Board of Education where the court overturned school segregation, he guaranteed that he would find, as was historically the case, that a woman had no rights, including to an abortion.
It's hard to credit claims of objectivity when we can see the decisive personal choices being made. It was no surprise that medieval scholastic monks usually sided with Catholic orthodoxy.
Was anyone surprised that Justice Thomas and Justice Alito voted against gun control and abortion rights? Wouldn't the justices have been more convincing if they admitted they were using personal judgment and then justified that judgment against current realities?
This isn't to criticize such conservatism in any century or to praise it either. It's to say that judges are more credible when they are open about their judgments and defend them in terms we can understand.
In favor of gun rights, Justice Thomas might have argued that the right to self-defense today is as vital as it ever was in a country of vast spaces and limited law enforcement.
Justice Alito might have argued that granting women a constitutional right to abortion strikes the balance between two lives, or one real and one potential life, too strongly in favor of the one over the other. It's the failure to place the real human issues at the center of the discussion that's the problem, even for those who agree with Justices Thomas' and Alito's views.
Today, the formula in the formalist approach dominates most legal opinions, including in business litigation.
Consider Judge Michelle Friedland's 2023 opinion about the Clean Water Act for the U.S. Court of Appeals for the Ninth Circuit in American Rivers v. American Petroleum Institute.
There's nothing sinister about it. It's just typically inaccessible contemporary judicial reasoning. First, despite the ease of finding this information from the court's online docket, readers must slog through eight pages of information about the numerous parties and their status in the case.
The staff-created summary takes up three pages, and then three pages are needed to list all the lawyers. Is it helpful to readers to take up 14 pages before we see what the court has to say?
Mercifully, Judge Friedland begins her opinion by summarizing the holding: Courts remanding to an agency a challenge to a regulation can't vacate the regulation during the remand without finding the regulation unlawful. This is helpful, except we don't know why they can't, and why is what matters.
To know why, the court then takes us through the usual formula. The text of the law at issue and its background are described at needless length. While reading it we have no idea of why it's important. It's more of an incantation.
About 20 pages in, we get back to where the court started — can it vacate a regulation during a remand.
Like many opinions, but later than most opinions, the court then detours again to address challenges to the court's jurisdiction — now needlessly common in most cases. This takes another four pages, and, 25 pages in, we still haven't heard anything about the core matter — why the court can't vacate a regulation while it's remanded.
When the issue is finally joined, it's back to the sacred manuscripts. Precedent says that the court's equitable powers are limited by those of the English equity courts at the time of separation.
Thankfully, the court makes no deep dive in this subjective direction, but then it does something worse. It leans mostly on the fallacy that because a court hasn't vacated a regulation on remand before, the court can't do it. Why is that a bar? There is a first for everything.
Next, the opinion jumps to a scholastic favorite, the canon expressio unius est exclusio alterius — the law says we can set aside unlawful regulations, therefore we can't set aside regulations not held unlawful.
Of the opinion's 31 pages, only about five address the main issue. They are filled mostly by quotations from other courts. There are five or six sentences reflecting the court's own thinking. They rely mostly on dogma.
The least attention is given to what matters to the people and businesses involved in the case. Remanding the case leaves a potentially unlawful regulation in place — probably for years.
Perhaps the court should have thought more seriously about ruling on the legality of the regulation rather than spending years litigating precisely how to avoid the question by sending it back to the agency.
The decision records that the challenged regulation was adopted by the Trump administration. The Biden administration wants the remand to potentially remove the regulation.
By the time it gets around to doing it, there may be another Trump administration, DeSantis administration, or what have you. Courts decide what is law. Avoiding the task, delaying the task, often makes the courts useless.
Likewise, vacating a regulation without finding anything wrong with it is as unfair to businesses relying on it as it is to assume a person is guilty until proven innocent. The court's equitable powers certainly embrace finding at least this much common sense.
In short, the court would have done better to address the human values and consequences at stake then to spend most of its opinion on collateral matters only to resolve the case with a fallacy and a canon of construction.
Courts haven't always acted this way. Justice Oliver Wendell Holmes and Justice Louis Brandeis were perfect opponents of scholasticism and formalism. Justice Holmes declared that the law was alive, not "a brooding omnipresence in the sky," and that "the life of the law has not been logic but experience."
Similarly, Justice Brandeis understood that human values and consequences matter most in arguing that: "If we desire respect for the law, we must first make the law respectable." Where did we go wrong?
Perhaps it has just become easier for us to point to mechanical means of reaching a decision rather than dealing with the flesh, bones and blood of a living controversy. We say: "It's just the law talking, not me." But this should worry us. The triumph of formalism in American decision writing has coincided with an historic decline in respect for the courts.
To reverse this trend, courts should place humanism above scholasticism and formalism in decision making. Trial courts should say who wins and why under the basic legal principle at stake and the facts of the case before them — not the facts of some other case.
Appellate courts should develop understandable legal standards and justify them in human terms — how will they affect the fortunes of the parties in the case and the parties who come after them. Appellate courts should have the courage to speak in their own voices and not speak principally through disembodied quotations from decisions they have chosen to quote over other contrary decisions.
It's not hard. Indeed, decisions are easier to write when a judge sees them for what they are — their opinions. Matters of judgment. By a human. About other humans — standing alone or gathered in a business. Whatever a judge's perspective, we all have a stake in judges writing credible opinions for the sake of a credible judiciary and a more stable nation.
Judges should take this to heart. They should throw off formalism and speak to the parties in front of them and the nation at large as people trying earnestly to sort out the troubles of litigants using principles embodied in law and wisdom.
It's fine for judges to wear robes, but we would all profit if they would throw off their cowls and look us in the eye.
Thomas G. Moukawsher is a judge on the Connecticut Superior Court. He is the author of the forthcoming book, "The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It"
More Than 2,650 Women Partners From 190 Firms Issue Call to Action Post-'Dobbs'
"Our presence and leadership within the bar is without question a byproduct of the freedom each of us has had to make reproductive decisions for ourselves," the thousands of signatories from about 190 firms wrote.
Now that the Supreme Court has overturned Roe v. Wade with its decision in Dobbs v. Jackson Women’s Health — negating almost 50 years of precedent and effectively taking away a once-constitutional right to choose — many lawyers are incensed. Law firms have pledged to defend abortion rights for people, and some have even joined forces with the Legal Alliance for Reproductive Rights to do so. Now, thousands of individual partners from some of the largest law firms in the world have signed onto calls of action to support reproductive rights in America.
More than 2,500 women partners from some of the most prestigious Biglaw firms across the country have joined together “with sorrow and a call to action” in our post-Dobbs nation to defend the right to choose. From their letter:
In sum, with the Supreme Court’s decision in Dobbs, women’s fundamental rights to liberty and equality have been drastically abridged. Women’s right to make choices about our reproductive health and when and if to have or expand a family is now subject to the control of state legislatures. The court has failed to uphold the promise at the very core of the Constitution: the promise of liberty and dispassionate, fair and equal treatment for all under law.
We cannot let that failure stand. As lawyers, and officers of the courts, we know we have unique abilities and responsibilities in the wake of this decision. To honor that responsibility and our oath to support the Constitution, we each commit ourselves to offering our pro bono legal services to organizations that defend and support women’s rights to autonomy, equality and safe access to reproductive care, including abortion.
These organizations have waged the battle for reproductive freedom for decades. Now more than ever, they are in need as they support women across the country who will find themselves in the crosshairs of the law. This commitment is personal, but we call upon members of the bar across the country to make similar commitments, including and importantly the men of the bar, who we need as our allies in the fight for equal citizenship.
Shortly there after, more than 1,400 male Biglaw partners penned their own call to action, in solidarity with their female colleagues. From their letter:
We refuse to remain silent. Too often, reproductive health care is framed as a “women’s issue.” While women are clearly affected most significantly and directly, this is a human rights issue. It is imperative that men speak up and stand up as reproductive justice affects us all. This is not just about abortion, although abortion is health care and should be treated as such.
As members of the bar, we took an oath to uphold the Constitution and its promise of liberty and equality for all. Dobbs breaches that promise and hands women’s right to make their own reproductive decisions over to the whims of state legislatures. It is our duty to join our women colleagues and also offer our pro bono services to organizations that defend and support women’s rights to autonomy, equality and reproductive care. We are committed to offering those services and also to making a donation now to support such organizations.
Attorney and cannabis policy advocate Amber Littlejohn recently announced her departure as executive director of the Minority Cannabis Business Association, an organization she joined in 2019 that focuses on policies aimed at redressing the harms caused by cannabis prohibition.During Littlejohn's tenure, the MCBA released the National Cannabis Equity Report, which marked the first comprehensive effort to examine the social equity programs in states that have implemented them to gauge their impact and offer policy recommendations for bringing those adversely affected by the war on drugs into the regulated industry.
Littlejohn spoke to Law360 just a few days before leaving the MCBA to discuss the state of social equity policies, the systemic challenges faced by small operators and the proposals on Capitol Hill to end federal prohibition. This interview has been edited for clarity and length.
What do you think are some of the biggest misconceptions that the public has about cannabis?
I think first and foremost [the idea] that people who have consumed or use cannabis as medicine are criminals, or somehow are not law-abiding citizens. From the beginning of prohibition in this country, they've really tied cannabis — a plant that, if you look around, I think very much does the opposite of instill anger and aggression in people — to criminal behavior. It's disappointing. So getting people away from the idea that if you smell cannabis or see somebody consuming cannabis, that they are somehow a criminal or a bad person. And that stigma unfortunately still exists as much as cannabis support has grown around the country.
What does the public misunderstand about the cannabis industry?
I think it's a misunderstanding that equity really is out front and an integral part of the cannabis industry. And while we'd like it to be so, there are only 15 state-level social equity programs, and those programs have to date been minimally effective in actually creating equity within the industry. We are not seeing the level of community reinvestment that was promised. We are not seeing the level of criminal justice reform that was promised. So I think it's important for people to understand that while the rhetoric is strong around equity and reform in the cannabis industry, the reality of those endeavors is really different.
How do you define equity in the cannabis space?
I would just say that equity should be woven throughout every element of cannabis policy. But generally speaking, I look at cannabis equity in four pillars.
[First], an equitable industry: creating equity and diversity within the industry, ensuring that people who have been most impacted by prohibition, folks existing in the legacy market, have the opportunity to participate meaningfully in the legal market
Second, an equitable community: helping to restore power to communities that have been most harmed by cannabis prohibition.
Third, equitable justice. This is getting people out of prison and jail. This is limiting cannabis-related contact with people that have been historically disproportionately policed concerning cannabis
And then lastly, equitable access: ensuring that veteran status, housing benefits status, disability status, none of these things would impede people's access to safe cannabis products.
If you could wave a policy wand, what would you like to see instituted in this country as far as cannabis policy?
First and foremost, I'd like to end federal prohibition, which was implemented contrary to the recommendations of experts. And now we have been stuck with a policy that was intended to wreak havoc and create harm in the Black community. So I would love to see the end of prohibition. Not only would this be great for those sitting in jail, and for those communities still being overpoliced, but it would create a real meaningful pathway to success for small cannabis businesses as well. The dual system of state-legality/federal-illegality is difficult for even large, well-funded firms to navigate. It's nearly impossible for small firms to navigate.
What are the major challenges for small businesses trying to get on their feet in this industry?
First, I would point to inequitable access to capital. Because of the federal banking situation and federal prohibition continuing to exist, most people that start cannabis businesses started through either personal wealth or friends and families. And then when you get into the individuals that have either been justice-involved or otherwise seriously impacted by the war on drugs and cannabis prohibition, that becomes even more inaccessible.
Next would be the limited licensing schemes. Arbitrarily limited and capped licenses at the state level have really created an overinflated value for licenses and a scarcity that has priced most people and most small businesses out of the running. You have some states where you have only a handful or not even a handful of licensed operators that are diverse firms.
And then lastly, I would say it's taxes, both state-level taxes and federal taxes are extraordinarily punitive. At the federal level, we have [Section 280E of the U.S. Tax Code] that treats state-legal cannabis businesses like criminal enterprises and taxes them accordingly.
And even on the state level, the excise tax and the sales tax are set at a punitive rate that often create a situation where small businesses can pay an effective tax rate of 70% to higher when you combine state and federal. And this makes it really impossible for the legal cannabis industry to compete with the unregulated market that doesn't have to pay taxes.
I'm glad you brought up the unregulated market, which continues to persist in states where cannabis has been legalized. What do you think is causing that, and what do you think is the most productive way to talk about it?
I think there are a few factors. As I mentioned, taxes are a big factor. Unnecessary burdens to entry are another. Creating licensing frameworks that really don't address the skill set of the legacy market for instance. Many legacy operators in communities, for example like New York, operate their businesses exclusively on a distribution and delivery system. And so to offer them a large storefront may not be the best path to success for them or even the best utilization of the market that they've developed. So it makes it challenging to incorporate them into the legal system.There has to be effort invested in understanding who exists in the unregulated market. I think there is a tendency of law enforcement agencies and sometimes regulators to lump the unregulated market into the cartel gang member bucket when you have an entire spectrum of people: people that have come from families that have for generations sold and grown cannabis, people who are peacefully selling it to raise their family. There are also the opportunists that pop up at the beginning or before the inception of a legal market and create, you know, "gifting" shops. They really run the spectrum.
And so I think it's really important to figure out who's there and to create pathways for those who would like to transition into the legal space, and to identify ways to enforce cannabis laws against opportunists trying to exploit gray areas, or people that are organized crime entities that are preying on individuals and communities and engaging in labor trafficking. That is something that we all collectively, I think, agree does not belong in a lawful and responsible industry.
But on the flip side of that, we don't want to re-criminalize people that are otherwise law-abiding citizens, but for the fact that they have failed to complete the licensing process for an otherwise peaceful cannabis business.
What are some of the biggest divisions within the legalization movement or within the cannabis industry at this point?
I would point to the interstate versus anti-interstate [camps]: those who want to limit or delay interstate commerce to protect existing state markets, and those who want to open up an interstate market even before federal legalization. Again, I often think that both camps are taking somewhat extreme positions, and the likely solution exists in the middle, as it often does in arguments like this.Another division that I don't think folks talk about enough is that legalization doesn't actually benefit everyone. Companies that are doing OK within their states haven't really aggressively pushed or done the work to get us to the point of federal legalization. In the anti-legalization camp are people also who have seen the legal market crush their generations-old cannabis business that was otherwise thriving under the weight of really burdensome taxes and regulation.
And then lastly, something that we're really seeing emerging right now is equity versus nonequity. And you know, very few will come out and say, "Hey, we don't care about equity." But when it comes to actions and being willing to do meaningful work, to create equity within the cannabis industry, that is something that we see waning. There are companies that are doing away with their social equity departments and firing staff and scaling back investment in that area, really failing to recognize that social equity is a component of [environmental, social, and governance principles] and the impact that that can have on your valuation from long-term sustainability. I think, unfortunately, sometimes the industry behaves a little shortsightedly as it concerns that.
What are your thoughts on the three major pieces of federal legislation trying to end cannabis prohibition? These are the MORE Act in the House, the CAO Act in the Senate, and GOP Rep. Nancy Mace's States Reform Act.
So the MORE Act and the CAO Act were actually very similar to each other in that they put equity and criminal justice reform at the forefront. Both things that I am hoping continue throughout federal legalization efforts.
I think the CAO Act took an additional step of attempting to build out a legal framework for cannabis. I do have concerns [about U.S. Food and Drug Administration] involvement and [U.S. Alcohol and Tobacco Tax and Trade Bureau] involvement and ensuring that whatever regulatory burden is created is going to actually support small businesses and not completely eliminate them. As both those are written right now, it would be a very difficult if not impossible transition for a lot of small businesses.
We would definitely like to see the breadth of provisions that concern small businesses and small minority businesses expanded in both of those proposals, because again, while I think the spirit is there, we are hoping to see a lot more meat on the bones as it concerns actually how we would get it done.
The States Reform Act is an interesting proposal. I will definitely start by saying outside the expungement provisions, there are no equity provisions. Not incredibly surprising understanding that it came from the other side of the aisle. So to support something like that, I would definitely need to see a robust effort to incorporate addressing the harms of an intentional war on people of color that goes right through federal cannabis policy.
I will say though, when it comes to small business, the SRA actually has the least burdensome regulatory framework, and probably the most small-business-friendly framework that I've seen to date. So that is encouraging, because I think regulatory burdens are the little-discussed equity issue that I think the SRA was very thoughtful in addressing. So while the absence of equity essentially renders that proposal a nonstarter in its current iteration, I am definitely encouraged by the thoughtful approach to regulation.
What do you think were the missteps or missed opportunities as far as states trying to implement their equity policies?
Especially states that have implemented [legalization] over the last four years, they had the opportunity to learn from the mistakes of the past. One of the challenges is not actually reaching out and engaging small businesses enough when developing policy. Because what we've seen over and over again is cannabis policy essentially becoming a compromise between industry and criminal justice reform organizations, neither of which have any investment or concern about the viability and sustainability of small minority businesses in the space.
Another big misstep is the failure to provide funding and technical support before markets open. Only six state-level social equity programs provide direct funding to social equity applicants or licensees and none of them have provided that funding at the time that the market opened or the applications opened.
So while there may be, you know, licensing fee waivers, it doesn't waive the hundreds of thousands of dollars that it may cost to submit an application in a competitive market, and it doesn't necessarily provide the funding to stand the business up. When your social equity support dollars are coming from adult-use revenues, it may take months or years for it to get to the people that need it. The funding in Illinois for social equity applicants that was supposed to come from the early adult-use revenues is still not making it into the hands of equity operators in the system years later.
Do you have any thoughts about some of the states that are coming online now in the Northeast — New Jersey, New York and Connecticut — and some of the proposals that they have on the table right now?
Connecticut is another place where the proposals that are absolutely exclusionary are dressed up as equity. It would take millions of dollars to be part of the first round of licenses, and then I think everybody else was fighting for, I think, 12 licenses. So that becomes a near impossible uphill battle and just whether you can buy enough balls in the lottery to be successful. It's disappointing.
In New York, I think the [Marijuana Regulation and Taxation Act] did a fantastic job of prioritizing equity and the [Office of Cannabis Management] has stayed focused on creating equity. I think it is yet to be seen how many successful applicants can come out of this first round, whether the first round of applications and licenses are tied up in litigation, and really how the fund is going to work.
You know, to date, we don't have a single social equity program that is rolled out without being delayed due to litigation. So I am hopeful that we can get these businesses up and running for these justice-involved individuals and really get to looking at what the next few rounds of licenses look like and making sure that the legal supply chain is sufficient to support legal businesses competing with the unregulated market.
What is your take on the SAFE Banking Act?
I wholeheartedly support the SAFE Banking Act. MCBA has offered some clarifying amendments on things we think could improve both access to capital and equity. SAFE Banking isn't the magic fix-all, but it is an incredible first step that could provide relief. I think folks who are in mature cannabis states fail to recognize that as these markets open up, so few banks bank cannabis, that it's nearly impossible for a brand-new cannabis business to get a bank account. It means you're in a position where you're taking the risk of starting your initial account at a bank that very likely will freeze your funds. And people don't want to take that risk. On the ongoing situation with robberies, anything that we can do to remove cash from these premises is really something that I will continue to support. So I will definitely continue to keep working with lawmakers to push this through.
Is marijuana is a bad word?
I mean, in truth if you look back at so many words, in the English language, in a country with a history as troubled as ours, there are a lot of words with troubled history. I use the term cannabis. I don't use the term marijuana, but I frequently engage in policy, and the term marijuana is used in those settings. In the multitude of battles that I fight on a given day, I'm going to prioritize basic human rights and supporting struggling businesses. I will save the fight for that for someone else
New Mexico Governor Michelle Lujan Grisham signed the New Mexico Civil Rights Act — also known as House Bill 4 — advancing fair and equal treatment under the law on Wednesday.
The legislation effectively bans qualified immunity — a judicial doctrine that shields state actors, including law enforcement officials, from liability, even when they knowingly break the law. New Mexico is now the second state to ban qualified immunity, following Colorado which enacted legislation to end the practice in June 2020.
Under New Mexico’s new law, a person has the right to sue the state, a city, or county, when their rights under the state’s constitution have been violated, such as in cases involving police misconduct. With the passing of this law, residents of New Mexico will finally be able to hold officials who engage in wrongdoing accountable.
“We will soon have a clear path to justice and a meaningful way to hold government accountable,” New Mexico Speaker of the House Brian Egolf, who introduced the bill, tweeted after the bill’s passage. “This is a bright day for the New Mexico Constitution.”
Police officers rarely face criminal charges or even internal disciplinary measures when they engage in misconduct. When misconduct goes unchecked, officers may continue to abuse their powers. Often, when police misconduct is discovered in one case, several more instances of misconduct committed by the same officer are uncovered in other cases. For example, several convictions in cases investigated by former Chicago officer Jon Burge and his team have been overturned due to repeated misconduct that went unpunished for many years. Nearly 37% of exoneration cases since 1989 involved police misconduct, the National Registry of Exonerations reported.
“The new law puts a price tag on police misconduct and creates a strong incentive for agencies to adopt and enforce policies that prevent abuses which can lead to wrongful convictions,” said Innocence Project State Policy Advocate Laurie Roberts. “It also provides exonerees with the financial justice they deserve after having their rights violated by government officials and having their freedom unjustly taken away.”
A bipartisan coalition of organizations including the Innocence Project, Americans for Prosperity, American Civil Liberties Union, Institute for Justice, National Police Accountability Project, and Ben Cohen and Jerry Greenfield — co-founders of Ben & Jerry’s — championed the bill.
Qualified immunity has prevented New Mexicans from holding police officers who commit misconduct accountable through civil lawsuits for too long. Such avenues for remedy are crucial for wrongfully convicted people and everyday citizens to seek justice for violations of their rights.
Ron Keine, for example, was wrongfully convicted in Bernalillo County, due to police misconduct so egregious it actually did lead to the firing of several sheriff’s deputies. Mr. Keine came within nine days of being executed for a murder he didn’t commit. Later, despite the fact that he was exonerated and officers involved in his case were fired, Mr. Keine’s lawsuit against the county and the sheriffs who helped secure his wrongful conviction were dismissed.
“Eliminating the legal doctrine of qualified immunity not only provides financial justice to victims of police abuse, including people who have been wrongfully convicted, but it also incentivizes police agencies to properly hire, train, and supervise law enforcement to prevent abuses from occurring in the first place,” said Rebecca Brown, the Innocence Project’s director of policy. “While Congress must end qualified immunity nationwide, many states — recognizing the urgency of this reform — are taking action on their own.””
By passing the New Mexico Civil Rights Act, the state has adopted a reform that assures accountability while preventing harm — a major step toward more equal justice for all.
A Texas federal judge on Friday ruled that the U.S. Food and Drug Administration "stonewalled judicial review" of its decades-old approval of the abortion drug mifepristone and agreed to stay the effective date of the drug's approval, in a watershed ruling that could dramatically restrict abortion access in the U.S., where medication abortion has become the most common method to terminate pregnancies.
U.S. District Judge Matthew J. Kacsmaryk stopped short of granting the preliminary injunction sought by the anti-abortion advocacy groups against the FDA's 23-year-old approval of mifepristone — the pill used in tandem with misoprostol to end an early-stage pregnancy. The judge agreed "to stay the effective date of FDA's September 28, 2000 approval of mifepristone and all subsequent challenged actions related to that approval."
However, he stayed the applicability of his opinion and order for seven days "to allow the federal government time to seek emergency relief from the United States Court of Appeals for the Fifth Circuit."
Almost immediately after the Texas ruling came down, a Washington federal judge issued an order preliminarily enjoining the FDA from "altering the status quo and rights as it relates to the availability of Mifepristone."
Judge Kacsmaryk, who was appointed in 2019 by former President Donald Trump, found that the anti-abortion advocacy groups had a substantial likelihood of success on the merits and stayed the FDA's 2000 approval while a lawsuit brought against the agency by anti-abortion groups including the Alliance for Hippocratic Medicine plays out.
The groups sued the FDA in November 2022, just months after the U.S. Supreme Court overruled Roe v. Wade, seeking to undo the agency's approvals of the brand-name drug Mifeprex and the generic version of the drug, mifepristone.
The anti-abortion groups, along with a handful of individual physicians, claim that medication abortions are dangerous, that the FDA should not have approved mifepristone and that the agency has removed safeguards once in place to protect women and girls.
The group not only sought to block an FDA January 2023 rule change that permanently lifted a restriction requiring in-person dispensing of the abortion pill and permitted pharmacies to fill mifepristone prescriptions for customers directly, it also sought to overturn all FDA approvals of mifepristone dating back to the agency's initial decision to greenlight the drug back in 2000.
The FDA, for its part, has repeatedly said mifepristone is safe and effective.
The agency has argued that serious adverse events associated with the drug are a "rarity" and that plaintiffs have provided no evidence that, in the absence of a preliminary injunction, mifepristone's continued availability on the market would cause them any harm.
In its briefs, the FDA further argued that a preliminary injunction threatens to cause significant harm to patients and would upend the status quo relied on by businesses and workers involved in mifepristone's manufacturing and distribution.
In a hearing on the motion for a preliminary injunction, held on March 15 in Amarillo, Texas, counsel for the government told Judge Kacsmaryk that a preliminary injunction could have a broader impact on the U.S. pharmaceutical industry.
Julie Straus Harris, counsel for the FDA, told the judge a preliminary injunction in the case "would leave pharmaceutical companies unable to confidently rely on FDA approval decisions to develop the pharmaceutical drug infrastructure that Americans depend on to treat a variety of health conditions."
The anti-abortion groups are represented by Erik C. Baptist, Erin Morrow Hawley, Matthew S. Bowman, Erica Steinmiller-Perdomo, Julie Marie Blake and Denise M. Harle of the Alliance Defending Freedom and Christian D. Stewart of Morgan Williamson LLP.
The government is represented by Noah T. Katzen of the U.S. Department of Justice's Civil Division's Consumer Protection Branch.
The case is Alliance for Hippocratic Medicine et al. v. U.S. Food and Drug Administration et al., case number 2:22-cv-00223, in the U.S. District Court for Northern District of Texas.
The American Civil Liberties Union (ACLU) hosted a forum this past December, in partnership with the Princeton School of Public and International Affairs, for a conversation about clemency following efforts by President Joe Biden and Oregon Ex-Governor Kate Brown, who both categorically pardoned people with convictions for marijuana possession.
The panel included Ex-Governor Kate Brown of Oregon, Michael Thompson, a formerly incarcerated advocate and founder of the Michael Thompson Clemency Project and New Jersey Attorney General Matthew Platkin. Thompson and Brown received the inaugural 2022 Lewis Conway Jr. Leadership in Clemency Award during the event.
Walk 4 Change co-founder Joe Grumbine CEO of The Human Solution Institute, worked with Michael Thompson extensively including raising money to help with his re-entry and medical needs and doing a series of interviews.
“When we talk about clemency, we’re talking about giving hope to people who feel there is nothing they can do,” said Michael Thompson during the event. “These sentences that are stacked and trap people need to be seriously re-evaluated. I would still be in prison if it wasn’t for people fighting for me and fighting to fix a system that is broken.”
When he announced the pardons last month, White House officials said Biden’s pardons would extend to over 6,500 individuals with prior convictions for simple marijuana possession.
Kate Brown estimates her clemency will lead to pardons for some 45,000 people convicted of simply possessing marijuana.
“The one-size-fits-all approach that mass incarceration relies on is rooted in racism,” Brown said during the event. “And as a country, we must rethink this approach. Clemency is a powerful tool that can help right the wrongs we know exist in our criminal legal system."
“Only in America can I kill someone, and two people stand up and take the blame for it,” Keith Jesperson, also known as the Happy Face Killer, says matter-of-factly in a phone interview from Oregon State Penitentiary.
On January 21, 1990, Jesperson killed 23-year-old Taunja Bennett after meeting her at the B&I Tavern in Portland, Oregon. Shortly after, he dumped her body off an isolated road in the Columbia River Gorge.
Bennett’s murder caught the attention of 58-year-old Laverne Pavlinac after it had made the local news. Pavlinac had a history of calling police to make false accusations against her boyfriend, 39-year-old John Sosnovske, about crimes he did not commit, hoping to put him in prison to subsequently free herself from a relationship she described as abusive. This time was no different. She called Detective John Ingram and blamed Sosnovkse for Bennett’s murder.
Pavlinac’s story would change several times over the course of the investigation, until she eventually confessed to helping Sosnovske kill Bennett and later dispose of the body. Detectives had asked Pavlinac to point out where Bennett’s body was disposed of in the Columbia River Gorge, which she somehow did with no problem.
“I think Detective John Ingram sold her a bill of goods, saying we’re going to put you in jail for now, and then you’re going to testify, and we’re going to let you go and you go have a happy life forever and ever,” Jesperson surmises. “And, of course, that didn’t happen.”
With a recorded confession and her knowledge of a detail only the killer would know, detectives were able to arrest and charge both her and Sosnovske for Bennett’s murder. At this point, Pavlinac attempted to recant her confession, but was nonetheless convicted and sentenced to prison for ten years to life.
Sosnovske always maintained his innocence, but out of fear of facing the death penalty, he pleaded no contest and was sentenced to 15 years to life.
In March 1995, upon his arrest, Jesperson confessed to killing Bennett and made it his mission to free both Pavlinac and Sosnovske, who were both innocent. Jesperson figured he “[could] use these people as witnesses to the fact that I had compassion enough to get them out of prison, and in sentencing that means a lot.”
But it would not be that easy. In the months following his confession, Jesperson would learn the deep flaws that ravaged the criminal justice system in America, as Sosnovske and Pavlinac remained in prison despite their innocence until November 1995.
Although it makes sense that prosecutors wanted to make sure Jesperson was telling the truth about murdering Bennett, should Sosnovske and Pavlinac have ever been arrested and convicted in the first place?
“It was very shoddy police work, and I think there is also a certain arrogance involved in it too….here, the investigating officers, they just knew it was John [Sosnovske]… every time Laverne would come up with a new one, it seems to me they got a little bit disappointed like ‘oh, we gotta do something to tighten this up’ and let Laverne sort of reel them back in,” Michael E. Rose, Sosnovske’s post-conviction attorney, explained.
“It’s a bit of hubris that they see themselves being on the right side of the law that they can do no wrong. When you’re in that kind of position of power and authority, you just don’t change your mind,” Rose said. “You don’t let on that you are vulnerable, weak, or imperfect. I don’t want to say that’s true for all police officers, but there is that tendency.”
In 1990, poor police work in New York cost Jeffrey Deskovic sixteen years of his life when he was wrongfully convicted for raping and murdering a fellow classmate, Angela Correra.
“The jury in my case convicted me, even though the DNA did not match me. It was just based on the confession,” Deskovic explained in an interview.
Often, people cannot understand why someone would confess to something they did not do, especially when the consequences are as dire as a lengthy prison sentence. Many people believe if ever placed in such a position that they would never admit to a heinous crime they did not commit.
However, they fail to recognize how stressful, grueling, and unrelenting police interrogations can be, which would cause anyone to crumble under such pressure.
Steven Drizin, a Clinical Professor of Law at Northwestern Pritzker School of Law, co-founder of the Center on Wrongful Convictions of Youth, and one of the attorneys representing Brendan Dassey, a central figure in Netflix’s docuseries Making a Murderer, said “everybody has a breaking point.”
“Some people can hold out longer than others, but I have no doubt that over time, most people, subjected to today’s psychological interrogation tactics, could be made to confess to a crime, even murder,” Drizin said.
In Deskovic’s case, he describes that he believed that he was helping the police solve the case when they drove him 40 minutes out of the county where he lived. Since he was supposed to be in school, neither his mother nor anyone else had any idea of his whereabouts, putting him in a vulnerable position. The police then convinced him to take a polygraph test, telling him that if he complied, they would be able to share new information they had about the case.
“The polygraph was [administered by] a Putnam County Sheriff’s investigator, Daniel Stephens, who was dressed like a civilian, and he pretended not to be a cop. He never read me my Miranda warnings,” Deskovic recounted. “I didn’t understand all the words in the brochure that explained how the polygraph worked, but I thought I was there to help the police, so what does it matter?”
At no point did Deskovic have an attorney present, and the officers did not give him anything to eat throughout the day. Instead, they brought him into a small room and gave him countless cups of coffee to make him nervous.
Stephens then wired him to the machine and began an interrogation implementing what Deskovic describes as “third-degree tactics.”
“He raised his voice at me, he invaded my personal space, he kept asking me the same questions over and over again. I realized I was a suspect then, but it was too late. Each hour that passed by my fear increased,” Deskovic said.
“I was in fear of my life…he kept that up for 6 ½ to 7 hours, and then that was capped off by when he left the room the cop that was pretending to be my friend came in and told me that the other officers were going to harm me, that I had to help myself.”
Eventually, the officer convinced Deskovic to tell them what they wanted to hear, promising he would then be able to go home.
“Being young, naïve, frightened, overwhelmed emotionally, in fear of my life, I made up a story based on information which he had given me during the course of the interrogation. By the time it was said and done, I had collapsed on the floor in the fetal position crying uncontrollably. So, all those circumstances led to the false confession.”
Deskovic fought for his innocence behind bars, losing seven appeals in the process, before he was finally freed and eventually exonerated. During his incarceration, he said he collected articles about other people who were exonerated, many through DNA evidence. Deskovic had requested a review of DNA evidence in his case, but was initially denied.
“On one hand I’d be happy for people, and I would envision the scene outside the prison and use that as motivation to continue, but at some point, that feeling would leave me and I would start to get frustrated like, ‘what about me?’” Deskovic said. “It was really just a technical difference. They were excluded by DNA after the conviction, and I was excluded before I was convicted. Their evidence was newly discovered, mine wasn’t.”
The cases involving Pavlinac, Sosnovske, and Deskovic are only a few examples of the defective process that still exists today within police interrogations.
In the United States, it is estimated that 46,000 to 230,000 currently incarcerated prisoners are innocent, according to The Los Angeles Times. If nothing else, these numbers reveal an ongoing problem and a broken system every American citizen is susceptible to falling victim to.
If police interrogations are meant to lead to a clear path to justice, why should a false confession ever occur? Do most detectives and prosecutors simply wish to solve a case, regardless of one’s guilt?
Within an interrogation, Drizin says that police officers use deception, promises of leniency, and threats of harm to “break a suspect down to a place of hopelessness.”
“The suspect begins to realize that asserting innocence is futile and wants to bring an end to the interrogation by any means possible,” Drizin said, detailing a process he believes is concerned only with reaching a conclusion, no matter if the truth has been discovered.
Drizin believes that many investigations rely too heavily on confessions as a way to close cases. He argues that law enforcement should instead “get the suspect’s account, take some time to prove that the suspect is lying and then slowly confront the suspect with the evidence that proves that the suspect isn’t telling the truth.”
“It’s a process more like peeling off the layers of the onion to convince the suspect that he is guilty rather than a process that bludgeons a suspect into confessing to a narrative created by the police. It all boils down to better police investigations,” Drizin said.
When someone is wrongfully accused of a crime, they tend to believe in the adage, “the truth will set them free.” Often, they do not believe they will end up convicted and stuck in prison for years.
They have faith in the system, that it will work for them, making them “overconfident that they will be able to demonstrate that they are innocent once they leave the interrogation room, but they come to find that their confession makes that all-but impossible,” according to Drizin.
Over time, faith chisels away, as they fight against a system that poses as a relentless opponent unconcerned with truth. In the meantime, with innocent people behind bars, the world grows more unsafe since the true felons are left free.
Just as Jesperson went on to kill seven more women, the perpetrator in Deskovic’s case was able to kill a second victim, a teacher with two children, while he was free and Deskovic was behind bars.
“They could have caught him, and she could have still lived,” he said.
Since such monumental mistakes cost people their lives and freedom, a growing awareness has been leading to some significant changes within the way interrogations are conducted. Approximately 30 state legislatures have now passed laws that require interrogations to be recorded.
However, some of these laws still need improvement. For instance, in 2017, legislators in New York made it mandatory for police to videotape interrogations, but laid out exceptions for homicide, sex offenses and drug cases.
“Those are the cases we need that the most,” Deskovic said. “[The requirement] is to reduce wrongful convictions caused by false confessions, so are we saying in making those exceptions that it’s okay to have a false confession in those cases? So, the bill that’s been introduced is going to close those exceptions.”
Laws that require interrogations to be documented via audio and/or video allow “judges [to] have a complete and accurate record of what transpired during the interrogation,” Drizin explained:
“Without a record, the risks are too high that judges will simply believe the police narrative of what happened, and police officers, like all human beings, misremember things or, in the worst cases, lie about what tactics were used and who provided the details in the confession,” Drizin said.
Since Deskovic’s exoneration, he has become an advocate for much-needed reform efforts, some of which also include allowing testimony about false confessions in the courtroom and introducing an additional pre-trial hearing where the accuracy of a confession would be looked at by the judge to assess any red flags.
Since Deskovic was only sixteen at the time of his arrest, he and the advocacy group #Right2RemainSilent have been working to pass the Youth Interrogation Act.
The proposed legislation would make it so that anyone under the age of seventeen “would have to speak to a lawyer to have their rights explained to them before they can waive their rights and speak to the police, recognizing that kids that age don’t understand their Miranda warnings,” Deskovic said.
Both Deskovic and Drizin agree that passing police deception bills would also help decrease false confessions from occurring, prohibiting police from lying to suspects that they have evidence that does not exist.
Police interrogations should only be permitted to last for four hours, Drizin suggests, explaining “that interrogations should not be held in the wee hours of the morning (to guard against sleep deprivation being a factor).” In Deskovic’s case, time was a factor that wore him down, leading to his false confession, so setting such limits would create a less adversarial environment in which lies are merely told out of exhaustion.
Even the lack of equality between prosecutors and defense attorneys, specifically public defenders, can skew the pursuit of justice.
“We need public defenders that have the same budget and the same manpower as the district attorney’s office. We need to have equal pay for both sides,” Deskovic said. “Right now, it’s not equal, and I think that sends the message that the prosecutor’s job is more important when in reality both lawyers are essential.”
Yet, whether these changes are made still does not address the problem of accountability. When police and prosecutors build and win a case, resulting in the conviction of an innocent person, there are no penalties or consequences for robbing years from that person’s life.
“Any misconduct [prosecutors] do, if they do it after an arrest has been made, then they have absolute immunity,” Deskovic said. “We have a whole class of people that are in effect above the law.”
Although a perfect system can never exist, it is imperative that those who investigate crimes strive for justice, rather than solely pursue securing a conviction.
Around Veterans Day, many of us reflect on the honor and sacrifice that our country's veterans have made. It is also an excellent time for attorneys to honor that service and sacrifice by getting involved with providing pro bono legal services to military and veteran clients.
Every year, the U.S. Department of Veterans Affairs identifies the top unmet needs of veterans facing housing insecurity. Nearly every one of those unmet needs is legal in nature, but most veterans who cannot afford legal assistance end up falling into the justice gap.
We can help close that gap. You do not need to be in the military or be a veteran to participate in these opportunities, just willing to give of your time and professional skills. Attorney allies who are not affiliated with the military can provide some of the most impactful legal services to military and veteran clients.
Below is an overview of military and veteran pro bono opportunities and how to get involved.
Pro Bono Opportunities
One of the unique components of providing pro bono legal services to military and veteran clients is the broad range of matters where a volunteer attorney can make a big difference: Some involve litigation while others are more transactional.
A common misconception is that the majority of military and veteran pro bono opportunities are related to assistance with claims with the VA or other military benefits, and that pro bono assistance is only limited to those topics. While helping veterans access the benefits they have earned is important, there is also tremendous need for assistance in other practice areas.
Opportunities can range from state and federal veterans benefits, applications for discharge upgrades, consumer protection, family law, housing and landlord/tenant law, consumer debt, bankruptcies, public housing, estate planning, Social Security and other benefits, elder law, immigration, and other state law-related issues.
For example, a pro bono attorney may be able to use their family law expertise to find opportunities to assist veterans who need divorces, some of which involve child custody issues. Pro bono representation in these instances typically involves assisting the veteran with filing for divorce, accompanying the veteran to hearings, helping develop a parenting plan, and ensuring that appropriate spousal and child support is awarded.
There are also opportunities to assist veterans with nonhonorable discharges based on conduct attributable to health conditions — such as traumatic brain injury or post-traumatic stress disorder — from combat-related exposure or military sexual trauma.
These volunteer opportunities typically involve helping the veteran draft and submit a discharge upgrade petition to the appropriate board of correction or discharge review board, and can help remove the stigma associated with receiving a nonhonorable discharge, and provide deserving veterans with access to earned benefits.
Providing pro bono services does not necessarily require taking a case for full representation. Counseling and advice, brief services or limited assistance representation can also be quite effective in removing legal barriers veterans may face.
These limited scope representation matters may be available through a range of events, including the following.
Stand-downs are day-long or multiday events where a variety of services are made available to veterans in a single location, typically on a walk-in basis. In addition to legal services, the services may include health care, dental care, housing, employment, substance abuse treatment or counseling, clothing, shower facilities, barbers and other essential services.
Volunteer attorneys providing legal services at stand-downs are typically providing one-time, limited-scope representation on issues that veterans present the day of the stand-down without an expectation of follow-up or full representation, similar to many lawyer-of-the-day type programs often hosted in courthouses. Attorneys can volunteer in their area of expertise or even by screening veterans seeking legal services.
One-time clinics are another great way for attorneys to provide limited-scope pro bono services. They are typically sponsored by local legal aid organizations serving veterans and staffed by volunteer attorneys with mentors and experts in the subject matter present. These clinics typically last one day and services are provided directly to clients on the day of the clinic without an expectation of follow-up or full representation.
For example, Pine Tree Legal Services in Maine provides a legal clinic for veterans and their spouses to receive simple wills and powers of attorney through its Wills for Heroes program in locations throughout Maine.
Metroplex Veterans Legal Services has also provided virtual expungement and orders of nondisclosure clinics in counties throughout Texas.
Mentorship and Training
Those interested in providing volunteer legal services may also be able to provide mentorship and training in their area of expertise, so others have the foundation to provide services directly to military and veteran clients. This is a unique way for those who are unable to provide direct representation to continue to provide volunteer legal services.
A sometimes overlooked opportunity for volunteer attorneys is to provide corporate-related legal services to a nonprofit veteran organization. This can be in the form of assisting with incorporation or entity formation, risk management, operational policies, lease negotiations, assisting with employment-related issues, or other legal matters related to the nonprofit's operation, or otherwise providing corporate assistance.
The first step to finding opportunities to get involved is to look for a reputable nonprofit or other legal aid program in your community that already provides legal aid to veterans, service members or their families, if there is one.
These organizations devote resources to providing their volunteers with the following key benefits.
Veteran legal aid providers will typically screen cases to ensure the client qualifies for pro bono legal services, assess the merits of the matter that the client wishes to have resolved, and provide a screening and placement memo. All of these tools will assist the volunteer attorney in avoiding conflicts and providing pro bono legal services to a military or veteran client.
Training and Mentorship
Volunteer attorneys will typically be provided with training on military and veterans culture and how to meet the unique legal needs of veterans and their families. These legal aid programs will also typically provide experienced staff attorneys as mentors to volunteer attorneys.
Accepting a referral from a veterans legal aid provider is also beneficial if additional or new legal problems arise that are outside the scope of services the volunteer attorney has agreed to provide. The veteran can be directed back to the legal aid organization, which can assist them in securing other resources or assistance.
Attorneys should consider honoring veterans by providing pro bono legal services to military and veteran clients. There are many great organizations with which attorneys can volunteer. Volunteering your time and legal skills, in any capacity that you are comfortable, will make a lasting positive impact on a well-deserving group of individuals.
ADMISSION OF GUILT: THE VATICAN REPUDIATES 'DOCTRINE OF DISCOVERY,' WHICH WAS USED TO JUSTIFY COLONIALISM
Nearly 500 years after papal decrees were used to rationalize Europe's colonial conquests, the Vatican repudiated those decrees on Thursday, saying the "Doctrine of Discovery" that was used to justify snuffing out Indigenous people's culture and livelihoods is not part of the Catholic faith.
The doctrine was invoked as a legal and religious standing by Europeans who "discovered" new lands and violently seized it from people who had been living there for generations. It has been cited in different arenas for centuries, including by the U.S. Supreme Court — as early as 1823 and as recently as 2005.
"The statement repudiates the very mindsets and worldview that gave rise to the original papal bulls," the Rev. David McCallum, executive director of the Program for Discerning Leadership based in Rome, told NPR.
"It renounces the mindset of cultural or racial superiority which allowed for that objectification or subjection of people, and strongly condemns any attitudes or actions that threaten or damage the dignity of the human person."
Here's a brief guide to the Discovery Doctrine, and why the Vatican's move is historic:
The doctrine came from papal "bulls" in the 15th century.
The doctrine was laid out in a series of papal "bulls," or decrees; the first one was issued in 1452. They authorized colonial powers such as Spain and Portugal to seize lands and subjugate people in Africa and the "New World," as long as people on the lands were not Christians.
Scholars widely note three bulls: Pope Nicholas V's Dum diversas (1452) and Romanus Pontifex (1455); and Pope Alexander VI's Inter caetera (1493).
Later popes revoked the decrees, but the damage was done.
The papal bulls "were not considered valid just 30 to 40 years after they were first issued. They were in fact abrogated legally and nullified by the Vatican by the late 1530s," McCallum told NPR.
The Vatican's nullification was too late to stop the destructive impact of colonialism, McCallum said, noting that European expansion was fueled by a "sort of missionary sense that the Western monarchies had a right to go to these new lands and to take from them their resources and if necessary to put down people, including enslaving them."
The doctrine made its way into the U.S. legal system
"Back in the in the 19th century, it was used as a precedent which gave people a sense of title to land that had not been owned with an official title in deed," McCallum said.So what began as a religious decree in the 1400s then became the basis for a legal concept in the U.S., when the Doctrine of Discovery was invoked in an 1823 U.S. Supreme Court ruling that Indigenous people had only rights of "occupancy," not ownership, over lands they had long lived on. The land, then, was open for the taking"
As a result of this being written into the American property law, it was actually considered a precedent," McCallum said, including citations as recent as a 2005 case in upstate New York, involving the Oneida Indian Nation.
Indigenous groups have long sought the repudiation
Indigenous advocates have previously called on the Catholic Church to issue a formal repudiation of the doctrine, saying personal apologies fell short, given the magnitude of the policy's effects.
Last year, the pope stunned observers when he personally apologized to Taylor Behn-Tsakoza, a youth delegate with the Assembly of First Nations who lives in British Columbia, for the Catholic Church's role contributing to years of suffering.
Behn-Tsakoza welcomed the pope's action. But she also noted the irreparable harm done to her culture by centuries of subjugation and to families like her own by decades of forced assimilation — and she called on Francis to renounce the Doctrine of Discovery.
Months later, the pope apologized to Indigenous peoples for the systemic abuse inflicted upon Native children at Catholic-run residential schools. But he stopped short of formally rescinding the doctrine.
What did the Vatican say about the doctrine?
Invoking the Christian mandate to respect the dignity of every human being, the Vatican said on Thursday, "The Catholic Church therefore repudiates those concepts that fail to recognize the inherent human rights of indigenous peoples, including what has become known as the legal and political 'doctrine of discovery.' "
The Church also said it stands with Indigenous peoples now and strongly supports the U.N. Declaration on the Rights of Indigenous Peoples, which it says can help protect Indigenous rights as well as improving living conditions and development "in a way that respects their identity, language and culture."
The Vatican also invoked the pope's words from his visit to Canada last year: "Never again can the Christian community allow itself to be infected by the idea that one culture is superior to others, or that it is legitimate to employ ways of coercing others."
Priests welcome the Vatican statement
"What was significant today is the way that the statement repudiates the very mindsets and worldview that gave rise to the original papal bulls," McCallum said. "It renounces the mindset of cultural or racial superiority which allowed for that objectification or subjection of people, and strongly condemns any attitudes or actions that threaten or damage the dignity of the human person."
Bishop Douglas Lucia of the Diocese of Syracuse, N.Y., said he believes the statement will lead to more dialogue.
"The call 'to walk side by side' is especially poignant in this land of the Onondaga and Haudenosaunee where there exists the 'Two Row Wampum," " Lucia told NPR via email. "It is a 1613 agreement of how the Haudenosaunee would treat the new settlers on their land based on friendship, peace, and forever."
With the Vatican taking a formal stance, Lucia added, the Christian community can acknowledge its own failings and work with Indigenous peoples to embody that 1613 agreement.