Boston University Pre-Law Review Volume I Issue XXX, Fall 2017

The Boston University Pre-Law Review Volume I Issue XXX , Fall 2017

Executive Board

President: Claire Park CAS ‘18 Vice President Shanti Khanna CAS ’17 Treasurer: Amie Sun CAS ‘20 Secretary: Shannon Larson COM ‘20 Editorial Staff

Editor-in-Chief: Claire Park Copy Editors: Luciano Cesta Douglas Darrah Jennifer Gonzales Andrew Gordon Noe Hinck Andrew Kelbley Ashley Nunez Sonali Paul Yvette Pollack Sofia Zocca Senior Layout Editor: Rachel Duncan Shaun Robinson

Faculty Advisors

Dean Edward Stern Assistant Dean, Pre-Professional Advising (Law)

Rita Callahan Ralston Pre-Law Academic Advisor

Table of Contents

1. Is it Time for A Fused Legal Profession in England? Aleksandra Boots 1. Civil Forfeiture 1. Ali Is Areiqat it Time for A Fused Legal Profession in 2.England? Female Genital Aleksandra Mutilation Boots and State Laws Martine Bjoernstad 1. Is it Time for A Fused Legal Profession in 3. License to Uber? England? Aleksandra Boots Dylan Brousseau-Vora 4.1. The Is it Political Time for Nature A Fused of Legalthe Presidential Profession Pardon in and its Ideological Path

England?Luciano Cesta Aleksandra Boots 5. Racial, Gender, and Socioeconomic Diversity in Juries 1. Douglas Is it Time Darrah for A Fused Legal Profession in 6.England? An Assessment Aleksandra of theBoots Hernandez Lawsuits Olivia Ferris 7.1. Sex-Education Is it Time for A Reform Fused Legalin the ProfessionModern United in States England? Rebecca GausepohlAleksandra Boots 8. How Schizophrenia Affects Competency During Capital Punishment Sentencing 1. Anna Is it CarinTime Irvingfor A Fused Legal Profession in 9.England? Death Penalty Aleksandra in Singapore Boots and the United States Neha Doraiswamy Iyer 10.1. IsThe it TimeControversy for A Fused Surrounding Legal Profession Collective in Bargaining England? Andrew Kelbley Aleksandra Boots 11. Can the President Pardon Himself? 1. Benjamin Is it Time Levy for A Fused Legal Profession in 12.England? Injustice Aleksandra Behind Bars Boots Wenyin Lu 1. Is it Time for A Fused Legal Profession in 13. Mass Incarceration England? Aleksandra Boots Ashley Nunez 14. Sex Offenders and the Right to Social Media 1. Is it Time for A Fused Legal Profession in Yvette Pollack England? Aleksandra Boots 15. Trump and the Fate of Deferred Action for Childhood Arrivals 1. Nicole Is it Time Ricker for A Fused Legal Profession in 16.England? CRISPR: Aleksandra Editing RevolutionizedBoots Chelsea Rollins 17.1. IsThe it TimeFate offor Transgender A Fused Legal Soldiers Profession in the in United States Army England? Jeyleani M. Aleksandra Sanchez Boots 18. The Future of Dodd-Frank Wall Street Reform: Dismantling the Volcker Rule 1. Benjamin Is it Time Smith for A Fused Legal Profession in 19.England? The Transparency Aleksandra Boots in Music Licensing and Ownership Act Nastassia Velazquez 20.1. Is Reparations it Time for Afor Fused Victims Legal of the Profession War on Marijuanain and Oakland’s Dispensary EquityEngland? Permit Aleksandra Program Boots Sofia Zocca Civil Forfeiture By Ali Areiqat, CAS ‘21 n 6 March 2017, Supreme Court Justice feiture encourages policing for profit.12 When laws make Clarence Thomas issued a statement about civil forfeiture easier and more profitable, law enforcement the Lisa Olivia Leonard v. Texas1 case, in engage in it more.13 Not only that, these forfeiture revenues which the state had used civil forfeiture to take have been misused on multiple occasions. Law enforce- more than $200,000 from a safe in Leonard’s ment officers have used these forfeiture funds on extrava- car. Thomas criticized civil forfeiture saying, “This sys- gant purchases, including a vacation to Hawaii.14 Moreover, tem ... has led to egregious and well-chronicled abuse. in 2014, net assets in the DOJ and Treasury forfeiture O 15 ... I am skeptical that this historical practice is capable funds were $4.5 billion, more than half a billion dollars of sustaining, as a constitutional matter, the contours of greater than the property losses due to burglary offenses.16 modern practice.”2 Civil forfeiture, also known as civil asset This massive discrepancy between legally and illegally forfeiture, is a legal process in which an action is brought obtained money raises questions about the motives of law to court to seize a property suspected of being involved in enforcement with their increasing use of civil forfeiture. criminal activity.3 Thomas’s statement came as a bit of a surprise, because, historically, the Supreme court issued Several steps could be taken to try to resolve the problems rulings that upheld civil forfeiture such as in the 1996 case of civil forfeiture. For example, profit incentives could be Bennis v. Michigan.4 In 2017, the Department of Justice eliminated by returning to the practice of putting civil asset (DOJ) released a report revealing that since 2007, the Drug forfeiture revenue into the general fund or by reducing Enforcement Administration seized about $3.2 billion in the percentage of revenue kept by the seizing agency.17 cash administratively, meaning no civil or criminal charges At the federal level, the Deterring Undue Enforcement by were brought against the owners of the cash and no judicial Protecting Rights Of Citizens from Excessive Searches review of the seizures ever occurred.5 With such a large and Seizures (DUE PROCESS) Act, reintroduced by sum of money involved and a Supreme Court Justice’s Congressman Jim Sensenbrenner in 201718, may be a criticism of it, it would be worthwhile to look at the benefits solution to the issue. The act increases transparency in and drawbacks of civil forfeiture, and what can be done to the civil asset forfeiture process, shifts the burden of proof improve it. from the property owner onto the government by increasing the standard of proof from “preponderance of the evi- To begin, civil forfeiture has many benefits. According to dence” to “clear and convincing” and implements additional a review by the Justice Department, civil forfeiture allows measures to ensure property owners have the opportunity agents to quickly seize suspected criminal proceeds on to contest seizures.19 site without having to seek a warrant and provides state and local law enforcement additional resources to fight 6 Sources crime and cover their expenses. It is seen as an instru- 1. Statement of Thomas, J, Lisa Olivia Leonard v. Texas, 580 U. S. ____ (2017). mental weapon in the ongoing battle against illegal drugs https://www.supremecourt.gov/opinions/16pdf/16-122_1b7d.pdf 2. Ibid. because its low burden of proof allows police to seize 3. “Types of Federal Forfeiture,” United States Department of Justice, last modified February 1, 7 2017, www.justice.gov/afp/types-federal-forfeiture. property even when they cannot gain criminal convictions. 4. Bennis v. Michigan, 516 US 442 (1996). 5. Christopher Ingraham, “Since 2007, the DEA has taken $3.2 billion in cash from people not Moreover, asset forfeiture can be used to protect and charged with a crime,” , March 29, 2017, https://www.washingtonpost. benefit those harmed by criminal activity. For example, in com/news/wonk/wp/2017/03/29/since-2007-the-dea-has-taken-3-2-billion-in-cash-from-people- not-charged-with-a-crime/?utm_term=.21b5bcd6c931. Rutland, Vermont three properties, which were identified 6. 11. United States Department of Justice, Review of the Department’s Oversight of Cash Seizure and Forfeiture Activities, March 2017, as having been used by some of the city’s major drug https://oig.justice.gov/reports/2017/e1702.pdf. dealers, were seized by federal officials and turned over 7. Jennifer Earl, “Civil asset forfeiture: Fund public defenders instead of the police,” , February 15, 2017, http://thehill.com/blogs/pundits-blog/ to NeighborWorks of Western Vermont, a nonprofit group crime/319632-civil-asset-forfeiture-fund-public-defenders-instead-of-the-police. 8 8. Adam Federman, “Homes in troubled Rutland neighborhood to be seized,” VTDIGGER, devoted to community redevelopment. NeighborWorks will October 2, 2016, https://vtdigger.org/2016/10/02/homes-troubled-rutland-neighborhood-seized/. 9. Ibid. use these properties to revitalize the neighborhood and 10. United States Department of Justice, Review of the Department’s Oversight of Cash Seizure create affordable housing for low-income families.9 Overall, and Forfeiture Activities, March 2017, https://oig.justice.gov/reports/2017/e1702.pdf. as mentioned in the review of the DOJ, civil forfeiture dis- 11. “Types of Federal Forfeiture,” United States Department of Justice, last modified February 1, 2017, www.justice.gov/afp/types-federal-forfeiture. mantles criminal organizations by removing the proceeds 12. Williams, Marian R., Jefferson E. Holcomb, Tomislav V. Kovandzic, and Scott Bullock, 2010, of crime used to perpetuate criminal activity and benefits Policing for Profit The Abuse of Civil Asset Forfeiture, Arlington: Institute for Justice, https:// www.ij.org/images/pdf_folder/other_pubs/assetforfeituretoemail.pdf. 10 people harmed by criminal activities. 13. Ibid. 14. McCormack, Zeke, “Former District Attorney sentenced in Kerrville,” San Antonio Express- News, May 22, 2010, http://www.mysanantonio.com/news/local_news/article/Former-District-Attorney-sentenced-in- Civil forfeiture’s greatest drawback is its greatest asset: its Kerrville-793542.php. low burden of proof. Since the property is the defendant’s, 15. Carpenter II, Dick M., Lisa Knepper, Angela C. Erickson, and Jennifer McDonald. 2015, 11 Policing for Profit The Abuse of Civil Asset Forfeiture 2nd Edition, Arlington: Institute for Justice, and no criminal charge against the owner is necessary, http://ij.org/wp-content/uploads/2015/11/policing-for-profit-2nd-edition.pdf 16. US Federal Bureau of Investigation’s Uniform Crime Reporting Program, “Crimes in the U.S law enforcement does not need to provide proof before 2014: Burglary,” seizing properties. In many cases, this incentivizes seizure https://ucr.fbi.gov/crime-in-the-u.s/2014/crime-in-the-u.s.-2014/ offenses-known-to-law-enforcement/burglary. because law enforcement can keep some of the forfeiture 17. Jones, Tyler Kirkland, “Will Eric Holder’s Memo Have a Substantial Effect on Civil Asset Forfeiture Practices?” Journal of Drug Policy Analysis 8, no. 1 (2015): 37-46. revenues. According to a study about the abuse of civil 18. Sibilla, Nick, “Over a Dozen Members of Congress Co-Sponsor Major Civil Forfeiture Reform,” Institute for Justice, April 3, 2017, http://ij.org/press-release/

BU PRE-LAW REVIEW FALL 2017 asset forfeiture by the Institute for Justice (IJ), civil for- major-civil-forfeiture-reform-bill-introduced-congress/. 19. Ibid. 4 Female Genital Mutilation and State Laws By Martine Bjoernstad, CAS ‘21 he World Health Organization (WHO) defines female that perpetuate the practice. For instance, a crucial part of ending genital mutilation as “all procedures involving partial or total female genital mutilation is steering men away from the barbaric way removal of the external female genitalia, or other injury to of thinking, in order to phase out the social pressure of having cutting the female genital organs for non-medical reasons”.1 Female performed. circumcision has no medical benefits and is therefore considered a violation of several human rights, including the right to Furthermore, stopping medicalization of female circumcision is an Thealth, right to physical integrity, and right to life.2 The practice is most essential component in the elimination of the practice. In modern common in Africa and some countries in Asia; however, due to glo- times, many parents turn to healthcare professionals to carry out balization and increased migration, the custom has extended to many the procedure, believing it will reduce the harmful side effects.13 parts of the world, including the United States.3 The United States Healthcare professionals agree to carry out the cutting based on vari- Citizenship and Immigration Services (USCIS) estimates that 513,000 ous motivations, such as being supporters of the procedure, financial girls in the United States are at risk of being subject to female genital gains, obligation to fulfill patients’ requests, or believing it is better to mutilation.4 Despite this horrific fact, 24 states have not established provide the procedure under medical circumstances, rather than the legislations outlawing the practice. girls being mutilated without proper supervision.14 Another controversy of the law is thus that it does not require health professionals to report Female circumcision is performed solely to control women’s sexuality known instances of performed procedures. Since the law was passed and preserve their virginity until marriage.5 The tradition is justified in 1996, there has only been a single conviction—in April 2017, a within communities by claiming it is for the woman’s best, arguing Michigan doctor was sentenced for performing genital mutilation on that if the procedure is not performed, she will encounter extensive two seven-year-old girls.8 The practice is currently being kept secret problems later in life. In societies where the practice takes place, within smaller communities, and therefore, having the medical field men claim that women who have not undergone the procedure are condemn the practice is an important step in encouraging communi- dirty and unworthy of marriage. In 1996, The United States federal ties to reconsider the ancient practice. government outlawed female genital mutilation on females under the age of 18.6 Nevertheless, the number of girls in the United States that It is a known phenomenon that changing cultural practice is a tedious are at risk, or have undergone the procedure, has quadrupled since and complex task. Nonetheless, if the issue at hand is approached 1997.7 One of the law’s critiques is that it only protects minors. Female from various angles and levels of society, it is possible to create genital cutting predominantly involves children that are not able to change. Laws provide women with a safety-net, allowing them to give their consent, and it seems obvious that a law should exist to speak up and warn others of the disturbing realities that follow from protect minors against assault. However, questions arise in regards to female circumcision. Health professionals within the medical field adult women. If a female of legal age, whom due to personal beliefs refusing to perform the procedure, and laws holding those that do desires to have the procedure performed, should a law deny her the accountable, are influential factors that set a standard for what society opportunity? Furthermore, to what extent should the law interfere with will not tolerate. Nevertheless, it all begins with the uppermost level. private beliefs? In this instance, the dilemma rests within the medical The lawmakers must set the agenda, and greater institutions will field, and not necessarily within the law. It is immoral for health pro- follow, eventually transforming individuals’ minds. fessionals to perform a procedure that presents no medical benefits, but rather result in mental and physical wounds on the individual. The Sources practice of female circumcision is dangerous and have severe effects 1. “Global strategy to stop health-care providers from performing female genital mutilation”. World Health Organization. 2010. Accessed October 2017. http://apps.who.int/iris/bitstream/10665/70264/1/ regardless of age. Consequently, healthcare professionals requested WHO_RHR_10.9_eng. to perform female genital cutting should refuse in the interest of the 2. “Global strategy to stop health-care providers from performing female genital mutilation”. World Health Organization. 2010. Accessed October 2017. http://apps.who.int/iris/bitstream/10665/70264/1/WHO_RHR_10.9_ individual’s well-being. eng.pdf 3. “Global strategy to stop health-care providers from performing female genital mutilation”. World Health Organization. 2010. Accessed October 2017. http://apps.who.int/iris/bitstream/10665/70264/1/WHO_RHR_10.9_ Nevertheless, female circumcision has in recent years gained more eng.pdf 4. Goldberg, Howard, and Besera, Danel, Okoroh, Stupp. “Female Genital Mutilation/Cutting in the United States: attention. In 2016, at the United Nations Sustainable Development Updated Estimates of Women and Girls at Risk, 2012”. Centers for Disease Control and Prevention. Public Health Summit, it was unanimously agreed upon the establishment of a Reports, March-April 2016, Volume 131. Accessed October 2017. https://www.uscis.gov/sites/default/files/USCIS/ Humanitarian/Special%20Situations/fgmutilation.pdf new global target, which aims to eliminate female genital mutilation 5. “Q&A on Female Genital Mutilation.” Human Rights Watch. June 16, 2010. Accessed October 2017. 9 by 2030. Originating from the increase in immigration from African https://www.hrw.org/news/2010/06/16/qa-female-genital-mutilation 6. “TITLE 18—CRIMES AND CRIMINAL PROCEDURE”. U.S. Government Publishing Office. Accessed October nations, the number of girls in the United States at risk for undergoing 2017.https://www.gpo.gov/fdsys/pkg/USCODE-2011-title18/pdf/USCODE-2011-title18-partI-chap7-sec116. female cutting is increasing.10 With an increasing number of victims, pdf 7. “Female Genital Mutilation.” The AHA Foundation. Accessed October 2017. https://www.theahafoundation.org/ the United States should take a leading role in the development of a female-genital-mutilation/. substantial response by beginning with passing appropriate legisla- 8. 2:17-cr-20274 Ind USA v. Nagarwala et Al (United States District Court Eastern District of Michigan Southern Division April 26, 2017) The United States Department of Justice. https://www.justice.gov/usao-edmi/ tions. Urging states to formulate laws concerning female circumci- press-release/file/960331/download sion is necessary in order to keep those performing the procedure 9. “Eliminate female genital mutilation by 2030.” United Nations Population Fund. February 03, 2016. Accessed October 2017.http://www.unfpa.org/press/eliminate-female-genital-mutilation-2030-say-unfpa-and-unicef. accountable for their actions, as well as giving women a platform to 10. Mather, Mark, and Charlotte Feldman-Jacobs. “Women and Girls at Risk of Female Genital Mutilation/Cutting speak up against the injustice being done to them. in the United States.” Population Reference Bureau. Accessed October 2017. http://www.prb.org/Publications/ Articles/2015/us-fgmc.aspx. 11. “United Nations Children’s Fund, Female Genital Mutilation/Cutting: A global concern.” UNICEF. 2016. Accessed October 2017. https://www.unicef.org/media/files/FGMC_2016_brochure_final_UNICEF_SPREAD.pdf Ultimately, female genital mutilation is no longer an issue that belongs 12. Mather, Mark, and Charlotte Feldman-Jacobs. “Women and Girls at Risk of Female Genital Mutilation/Cutting only to developing countries in Africa; it has evolved into an inter- in the United States.” Population Reference Bureau. Accessed October 2017. http://www.prb.org/Publications/ Articles/2015/us-fgmc.aspx. national concern. The practice is predicted to grow over the next 13. “Eliminating female genital mutilation: an interagency statement OHCHR, UNAIDS, UNDP, UNECA, UNESCO, 11 12 decades, on both a global scale as well as in the United States. It UNFPA, UNHCHR, UNICEF, UNIFEM, WHO”. World Health Organization, 2008. Accessed October 2017. http://www.un.org/womenwatch/daw/csw/csw52/statements_missions/Interagency_Statement_on_Eliminating_ is hence important to address the problem and develop a solid plan FGM.pdf to shift communities away from this tradition. Considering female 14.“Eliminating female genital mutilation: an interagency statement OHCHR, UNAIDS, UNDP, UNECA, UNESCO, UNFPA, UNHCHR, UNICEF, UNIFEM, WHO”. World Health Organization, 2008. Accessed October 2017. http://

genital mutilation is a cultural practice, it is necessary to educate www.un.org/womenwatch/daw/csw/csw52/statements_missions/Interagency_Statement_on_Eliminating_FGM. BU PRE-LAW REVIEW FALL 2017 communities for the sake of changing core attitudes and perceptions pdf 5 License to Uber? By Dylan Brousseau-Vora ransport for London, London’s regulatory hands.9 Regardless of whether they are legally obligated body governing transportation in the Greater to investigate incidents, they have promised to investigate London Area, has put the livelihood of 40,000 and discipline and have failed to do so multiple times. Uber drivers and the convenience of nearly 3.5 million Uber users at risk in the name of Uber’s argument regarding responsibility in the event of an safety and security.1 On September 22, 2017, Transport of incident fails recognize the potential dangers of allowing TLondon(TfL) issued a public statement, stating that they drivers accused of crimes to continue driving for Uber. This would not be renewing Uber’s private hire operator license dichotomy of belief is the crux of the debate and is poten- that was set to expire a few days later. A revocation of a tially the easiest to change. If Uber chooses to improve private hire operator license would mean that Uber drivers the method internally, and conduct investigations into Uber could no longer legally operate in the greater London area. drivers more effectively, then perhaps Uber can maintain a TfL cited Uber’s failure to report serious criminal offenses system where customers have the choice to prosecute and to the appropriate authorities as one of many grievances Uber can keep its services safe. it has with the company.2 Uber has since appealed the decision with the beginning of the appeal dated to Monday, Publically, it appears that many people support Uber December 11th.3 In conjunction with the appeals process, regardless of safety problems. In fact, a petition to Mayor Uber is attempting to negotiate with TfL outside of the of London, Sadiq Khan, called “Save Your Uber in London” courts. The question now becomes, does TfL have enough has reached 850000 as of October 6th 2017.10 In many justification for a revocation and is Uber willing to compro- ways, this statistic is not surprising as 3.5 million people in mise on some of its problematic policy choices in order to London use Uber , and 40,000 people drive for Uber. Since continue operating in London? the TfL announcement, the Uber CEO has entered negotia- tions with the TfL, indicating that there is a push to achieve These questions can be answered by analyzing the core resolution through compromise rather than through litiga- issue at hand. The primary problem stems from how Uber tion.11 So far these negotiations have been to no avail and manages the customer complaints it receives regarding are now running parallel to the appeals process that started crimes perpetrated by its drivers. Currently, rather than December 11th. Sadiq Khan has indicated that Uber may notifying the police when it receives customer complaints be tied up in the appeals process for a few years before a surrounding criminal behavior, Uber notifies TfL. The decision is reached.12 This is not entirely bad news for Uber bureaucratic nature of Uber and TfL means that complaints as they are legally able to operate until the appeals process take around seven months to reach the police.4 As a result, has concluded. these complaints are rarely, if ever, resolved, leaving potentially dangerous Uber drivers unprosecuted and on This legal situation poses many philosophical questions the road. Inspector Neil Billany of the Metropolitan Police’s worth considering given the magnitude of people it could Taxi and Private Hire Team recounted one incident where affect should the negotiation fail and Uber’s appeal be an Uber driver sexually assaulted a client.5 The client wrote denied. a complaint to Uber, only for it to go unacknowledged. Uber failed to discipline the driver and allowed him to con- tinue working. Following the initial incident, the same Uber driver perpetrated a second, more severe crime, that could have been prevented if he had been prosecuted or disci- plined for his first offense.

It is important to note that, in 2016, the Metropolitan Police were made aware of six sexual assaults and two public Sources order offenses relating to Uber.6 Insp. Billany noted that the 1. Butler, Sarah, and Gwyn Topham. “Uber Stripped of London Licence Due to Lack of two public order offenses could not be prosecuted as they Corporate Responsibility.” , Guardian News and Media, 22 Sept. 2017, www. 7 theguardian.com/technology/2017/sep/22/uber-licence-transport-for-london-tfl. breached the British statute of limitations. Officials at Uber 2. Transport for London | Every Journey Matters. “Licensing Decision on Uber London have since defended their actions stating that they believe Limited.” Transport for London, tfl.gov.uk/info-for/media/press-releases/2017/september/ licensing-decision-on-uber-london-limited. clients have the prerogative to bring a claim in an instance 3. “Uber London Licence Appeal ‘Could Take Years’.” BBC News, BBC, 16 Nov. 2017, www.bbc. com/news/uk-england-london-42012719. of criminal activity and, as such, limit their involvement to 4. Association, Press. “Uber Failing to Report Sex Attacks by Drivers, Says Met Police.” The 8 Guardian, Guardian News and Media, 13 Aug. 2017, www.theguardian.com/technology/2017/ notifying TfL of complaints relating to criminal offenses. aug/13/uber-failing-to-report-sex-attacks-by-drivers-says-met-police. While this may be legally acceptable under their interpreta- 5. Ibid 6. Ibid tion of English Law, Uber has made promises on the same 7. Ibid 8. Ibid topic that it has failed to follow up on. According to Uber’s 9. “Community Guidelines.” Uber.com, Uber, www.uber.com/legal/community-guidelines/us-en/ own safety code “Actions that threaten the safety of drivers 10. “Sign the Petition.” Change.org, www.change.org/p/save-your-uber-in-london-saveyouru- ber?recruiter=792416512&utm_source=share_petition&utm_medium=email&utm_cam- and riders will be investigated and, if confirmed, lead to paign=share_email_responsive#response-40087. 11. Dara Khosrowshahi, Uber’s CEO, to Meet TfL to Appeal License Ruling.” Verdict, 3 Oct. permanent deactivation of your account” indicating that 2017, www.verdict.co.uk/dara-khosrowshahi-uber/. BU PRE-LAW REVIEW FALL 2017 Uber has taken the obligation of investigation into its own 12. Ibid.4 6 License to Uber? The Political Nature of the Presidential

ByPardon Luciano Cesta and its Ideological Path Under Trump

n 25 August 2017, President officially Likewise, the political nature of the presidential pardon has, in the granted clemency to former Maricopa County Sheriff past, been on display by other presidents. George H.W. Bush, on Joseph Arpaio who had been convicted earlier in Christmas Eve in 1992 granted clemency to Caspar Weinberger, 2017 when he was found to be in contempt of court.1 Elliott Abrams, Duane Clarridge, Alan Friers, Clair George and The Maricopa County Sherriff’s Office had previously Robert McFarlane more or less ending the investigation into been court ordered to end its practices of using traffic stops to the Iran-Contra Affair. Fearing that he may have to testify at Oseek out undocumented immigrants as a result of the class action Weinberger’s trial due to the possibility that he was mentioned in suit, Melendres v. Arpaio in 2013, which found that Weinberger’s personal notes that were being used as evidence, against Hispanics and Latinos had been used to carry out this prac- President Bush Sr. decided to end the investigation, possibly in tice. Arpaio was found to be in contempt of court on 31 July 2017 fear of the diminishment of his reputation.9 Bush publically justified by the United States District Court wherin Judge Susan Bolton the pardon of the officials by claiming that they were American stated that Arpaio, “had willfully violated an order of the court” with patriots who sought no profit from the Iran-Contra scandal.10 his failing to “ensure his subordinates’ compliance and directing Likewise, when President Gerald Ford pardoned President them to continue to detain persons for who no criminal charges Richard Nixon, exonerating him from further Watergate related could be filed.”2 investigation, he did it with the reasoning of restoring national “tranquility”.11 While the declared intentions of these pardons are The power to grant pardons to federally convicted individuals is honorable, there is no doubt that political interest has made the granted to the President under Article II, Section 2 of the U.S. morality of these pardons questionable. Constitution which reads “… he [the President] shall have Power to Grant Reprieves and Pardons for Offences against the United However, while examining Arpaio’s situation we see that there is 3 States, except in Cases of Impeachment.” This amounts to the something more ideological about Trump’s decision. Trump was only stipulation in the constitution surrounding the power of the not ashamed to state in a press conference that Arpaio was “very Presidential pardon. This power, while seemingly undemocratic strong on borders… very strong on illegal immigration”.12 While as it puts the ability in one man to override the judicial branch, Trump mentioned that he believed that Arpaio was a patriot, he has justification at least in the minds of the constitution’s fram- also referred to Arpaio’s popularity in Arizona, mentioning that ers. Alexander Hamilton wrote in Federalist Paper No. 74 that, he was “loved”.13 An ideological foundation exists for why Trump “in seasons of insurrection or rebellion… a well timed offer of decided to pardon. pardon to the insurgents or rebels may restore the tranquility of 4 the commonwealth…” It would be more rapid than calling the While President Trump’s pardon of Arpaio is part of a history of the legislator to issue reprieve. Norms surrounding the pardon power, self serving use of the presidential pardon, there are remarkably historically, have supported the framer’s intent. Crouch observes ideological elements surrounding the relationship between Trump that, even though “Presidents have a broad authority to pardon… and Arpaio that make Arpaio’s pardon stand out. As we follow the proper motives for pardon (an act of “grace” or “for the public developments on this event, we must consider precedent, the 5 welfare”) are established both in law and practice.” The intent, at Constitution and political ideology to analyse the event with care least, of the presidential pardon was to further stabilize American and scholarship. democracy. It is, however, noted that every so often, a president may pervert the pardon for their own gain. Sources 1. Julie Davis and Maggie Haberman, “Trump Pardons Arpaio, Who Became Face of Crackdown on Illegal Immigration,” New York Times, August 25, 2017, https://www.nytimes. To examine the political nature of Arpaio’s pardon, one must look com/2017/08/25/us/politics/joe-arpaio-trump-pardon-sheriff-arizona.html?_r=0. 2. Colin Dwyer. “Ex-Sherriff Convicted of Criminal Contempt,” National Public into the context of the Trump-Arpaio relationship which expands Radio, July 31, 2017. http://www.npr.org/sections/thetwo-way/2017/07/31/540629884/ ex-sheriff-joe-arpaio-convicted-of-criminal-contempt further into the past than is typically known. A member of the 3. U.S. Const. art. II, § 2. 4. Alexander Hamilton. Federalist Paper No. 74. The Avalon Project, Yale Law School. birther movement, Arpaio claimed that President ’s http://avalon.law.yale.edu/18th_century/fed74.asp long form birth certificate, released by the White House on 27 5. Jeffery Crouch, The Presidential Pardon Power (Lawrence, KS: University Press of Kansas, 2009), 147. 6 April 2011, was a forgery. Trump, who was also a member of 6. Philip Rucker and Ellen Nakashima. “Trump asked Sessions about closing case against Arpaio, an ally since ‘birtherism’” The Washington Post, August 26, 2017, https://www. this movement, congratulated Arpaio in a 2011 Tweet which read, washingtonpost.com/politics/trump-asked-sessions-about-closing-case-against-arpaio- “Congratulations to @RealSheriffJoe on his successful Cold Case an-ally-since-birtherism/2017/08/26/15e5d7b2-8a7f-11e7-a94f-3139abce39f5_story. html?utm_term=.9e280c068e8c. Posse on Trump which claims @BarackObama’s ‘birth certificate’ 7. Donald Trump, Post, July 18, 2012, 8:56 AM. https://twitter.com/ 7 realDonaldTrump/status/225620165138726912?ref_src=twsrc%5Etfw&ref_ is fake.” A month after Trump commenced his campaign, Arpaio url=http%3A%2F%2Fnymag.com%2Fdaily%2Fintelligencer%2F2017%2F08%2F- birther-friends-forever-why-trump-and-joe-arpaio-are-bffs.html attended a campaign rally in Phoenix, AZ speaking on his strict 8. Adam Raymond, “Birther Friends Forever: How Trump and Joe Arpaio became BFFs,” stance on undocumented immigration.8 It can be inferred that New York Magazine. August 23, 2017. http://nymag.com/daily/intelligencer/2017/08/birther- friends-forever-why-trump-and-joe-arpaio-are-bffs.html Arpaio is an important ally of Trump’s on immigration and law 9. Crouch, 106 10. Crouch, 105 enforcement. Arpaio’s pardon can be seen as politically advanta- 11. Mark Rozell, “President Ford’s Pardon of Richard M. Nixon: Constitutional and Political geous for both Trump and Arpaio and therefore suggests that this Considerations,” Presidential Studies Quarterly 24, no. 1 (1994): 122. 12. “Trump: I stand by my pardon of Joe Arpaio,” YouTube Video. Posted by “CNN,” August 28, 2017. https://www.youtube.com/watch?v=sy9naTef0rg contemporary presidential pardon is ostensibly political. BU PRE-LAW REVIEW FALL 2017 13. Ibid 7 Racial, Gender, and Socioeconomic Diversity in Juries By Douglas Darrah rial before an impartial jury of one’s peers, as juror. When they do have to give a reason, it is not difficult guaranteed by the U.S. Constitution’s Sixth to find an acceptable one. The Equal Justice Initiative Amendment, is a fundamental right of all found that black jurors have been stricken from a jury Americans. In reality, however, nobody is com- pool for a number of reasons, from wearing eyeglasses to pletely impartial, and therefore neither is any jury. having relatives who attended historically black colleges.10 Building a jury of diverse individuals is the best solution to Often, jurors from predominantly black neighborhoods will Tthis problem because the individual biases of the different be excluded for where they live. jurors conflict, leading to greater debate and, ultimately, a more objective examination of the evidence.1 In spite of Trial before an impartial jury of one’s peers is a crucial the benefits of a diverse jury, juries remain wealthier, better part of a fair judicial system. All too often, flawed selec- educated, and whiter than the community they represent. tion systems and prosecutorial misconduct can lead to poor minority defendants being tried in front of a jury that A jury is selected from a jury pool that is, in theory, ran- is not made up of their peers, as defined as “a random domly selected from the citizens of a county. Most jury cross-section” of the community. pools are between thirty and a hundred people, and most juries are either six or twelve people. In order to narrow down a jury pool, the lawyer of each party is allowed to exclude potential jurors that they consider excessively biased.

In 1985, the Supreme Court ruled in Batson v. Kentucky, 476 U.S. 79 (1986), that attorneys are not allowed to use race as a reason to exclude potential jurors. In practice, however, this still happens to this day. A study of North Carolina capital punishment cases found that black jurors were three times more likely to be struck than white ones.2 A separate study of Caldo Parish in Louisiana found that qualified black jurors were 3 times more likely to be struck than whites ones.3 A study of multiple urban counties found that juries were, on average, significantly wealthier and better educated than the county mean.4 A multi-state study by the Equal Justice Initiative found that black jurors are heavily underrepresented in many Southern counties.5 Instead of being a cross-section of society, juries are a place where, “racial discrimination is...widespread, appar- ent, and seemingly tolerated.”6

In order to have a chance at being on a jury, African Americans have to be represented in the jury pools first. Often, these pools are a simple random sample (SRS) Sources that does not account for racial housing segregation. By 1. Marinakis, Christina. “What are the Benefits of Having Diversity in a Jury Panel?” Litigation Insights. September 30, 2015. Accessed September 30, 2017. http://litigationinsights.com/ selecting people randomly based on geography, minori- jurors/benefits-diversity-jury/. ties who are clustered together are underrepresented in 2. Grosso, Catherine, and Barbara O’Brien. “A Stubborn Legacy: The Overwhelming 7 Importance of Race in Jury Selection in 173 Post-Batson North Carolina Capital Trials.” Iowa jury pools. Even when they are selected for the jury pool, Law Review, January 1, 2012. Accessed October 1, 2017. https://www.unc.edu/~fbaum/teach- ing/articles/grosso-obrien-2012-iowa-law-review.pdf. however, minority jurors are still discriminated against 3. Boyle, Ursula. “Blackstrikes: A Study of the Racially Disparate Use of Peremptory Challenges by the Caddo Parish District Attorney’s office.” Reprieve Australia, August 2015. Accessed by prosecutors. Defendants are disproportionately poor October 1, 2017. https://blackstrikes.com/resources/Blackstrikes_Caddo_Parish_August_2015. 8 minorities, and since jurors are more likely to be sympa- pdf. 4. “Illegal Racial Discrimination in Jury Selection: A Continuing Legacy.” EJI.org. August 2010. thetic towards defendants of their race and socioeconomic Accessed October 1, 2017. https://www.eji.org/sites/default/files/illegal-racial-discrimina- 9 tion-in-jury-selection.pdf. status, prosecutors often favor jurors that are wealthy and 5. Lehmann, Jee-Yeon K. , and Jeremy Blair Smith. A Multidimensional Examination of Jury white. Disturbingly, this leads to unconstitutional racial Composition, Trial Outcomes, and Attorney Preferences. Report. 12. 6. Ibid., discrimination. 7. Fukurai, Hiroshi, Edgar W. Butler, and Richard Krooth. “Cross-sectional jury representa- tion or systematic jury representation? Simple random and cluster sampling strategies in jury selection.” Journal of Criminal Justice19, no. 1 (1991): 31-48. Accessed October 1, 2017. doi:10.1016/0047-2352(91)90081-6. There are many legal methods that prosecutors can use to 8. “Table 43: Arrests by Race and Ethnicity.” FBI. September 17, 2016. Accessed October 01, keep minorities off of juries. Sometimes, prosecutors are 2017. https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-the-u.s.-2015/tables/table-43. 9. Lehmann and Smith, 13-16

BU PRE-LAW REVIEW FALL 2017 not even required to give a reason for striking a potential 10. EJI, 4

8 An Assessment of the Hernandez Lawsuit By Olivia Ferris, SAR ‘19 he family of former New England Patriots tight While it appears doubtful that Jenkins-Hernandez will win end Aaron Hernandez is currently suing the the lawsuit, this case, along with the CTE research done at NFL over a severe case of Chronic Traumatic Boston University, brings the issue of traumatic brain injury Encephalopathy found in the deceased body of in football players to the public eye. It is likely that the NFL Hernandez.1 Hernandez’s fiancée, Shayanna will have to deal with the backlash of this case much past Jenkins-Hernandez has filed this lawsuit on the behalf of a decision being made, including potential subsequent law- herself and their four-year-old daughter, Avielle Janelle suits from the families of other players diagnosed with CTE. T 2 Hernandez. Other players have also voiced their concerns after the Recent studies on CTE, conducted by Boston University’s Boston University study came out. Ex-NFL quarterback CTE center, have shown that the degenerative brain 3 Boomer Esiason, immediately prior to being inducted to disease could be extremely common in football players. the Pro Football Hall of Fame stated, “I can’t lie, we are A study published this July in the Journal of the American all scared,” referring to the potential effects of brain injury Medical Association (JAMA) found CTE to be prevalent in 12 4 inherent to the sport. Terrell Davis, an ex-Broncos running 99% of players in the National Football League (NFL). back, brings to life the day-to-day struggles of players with CTE, saying that when he has a moment of forgetfulness The Hernandez lawsuit is seeking $20 million dollars in or memory loss he fears irreversible damage caused by damages, in order to compensate Avielle Hernandez 13 5 football. He constantly asks himself, “Is this because I’m for the “loss of parental consortium.” The family’s law- getting older or I’m just not using my brain, or is this an yer, Jose Baez, said that the family is also considering effect of playing football?”14 suing the N.C.A.A. and the University of Florida, where 6 Hernandez played college prior to the Patriots. Their law- For many people that have problems with the high lev- suit is based on the claim that the NFL knew the danger to 7 els of traumatic brain injury associated with football, the Hernandez, and were negligent in their care of him. Hernandez case is just more evidence to back their claims of the danger that accompanies the popular sport. There are many potential defenses that the NFL and the However, the family has dropped the suit on October 14, Patriots may take, including a lack of causation, and the 2017, at least for now. fact that there is an inherent assumption of risk included with playing for the NFL. The NFL is likely to argue lack of causation in that the studies on CTE neither prove that football is the cause for Hernandez’ CTE, nor that football is the cause of CTE in football players in gen- eral. They may also argue that CTE was not the cause of Hernandez’s suicide and violent behavior, and that this suicide is linked to other mental issues of Hernandez that are unrelated. Researchers have still not made any claims that CTE is directly linked to Hernandez’s violent behavior Sources 8 1. McDonald, Danny. “Hernandez had CTE, lawyers say; lawsuit against NFL, Patriots filed or suicide. There is also an assumption of the risk defense - The Boston Globe.” BostonGlobe.com. September 21, 2017. Accessed October 01, 2017. https://www.bostonglobe.com/metro/2017/09/21/aaron-hernandez-lawyers-speak-about- the NFL might raise. The assumption of risk argument is his-prison-suicide/c1DGISELSscAKSHE9yYFKJ/story.html. based in the fact that Hernandez already knew there was a 2. Mez, Jesse , Daniel H. Danshevar, and Patrick T. Kiernan. “Clinicopathological Evaluation of Chronic Traumatic Encephalopathy in Players of American Football.” Journal risk of brain injury in playing in the NFL, and that he knew of the American Medical Association 318, no. 4 (July 25, 2017). doi:10.1001/jama.2017.8334 3. Ibid the potential risk to his health of this contact sport. 4. Ibid 5. McCann, Michael. “A lawsuit is a reality after Hernandez’s diagnosis.” SI.com. September 21, 2017. Accessed October 01, 2017. https://www.si.com/nfl/2017/09/21/ Another factor in the NFL’s potential defense is a bil- aaron-hernandezs-cte-diagnosis-affect-potential-lawsuit-nfl-patriots. 6. Belson, Ken. “Aaron Hernandez Found to Have Severe C.T.E.” Nytimes.com. September lion-dollar 2014 concussion settlement which prevents 21, 2017. Accessed October 01, 2017. https://www.nytimes.com/2017/09/21/sports/aar- on-hernandez-cte-brain.html. players who retired before July 7, 2014, from filing future 7. Ibid lawsuits against the league.9 Hernandez’s career ended 8. McCann, Michael. “A lawsuit is a reality after Hernandez’s diagnosis.” SI.com. September 21, 2017. Accessed October 01, 2017. https://www.si.com/nfl/2017/09/21/ when he was arrested in June 2013, but he was not aaron-hernandezs-cte-diagnosis-affect-potential-lawsuit-nfl-patriots. 10 9. Mitchell, Max. “$20M Aaron Hernandez Suit Faces Hurdles, Attorneys Say.” The Legal actually retired. This means that if the NFL tries to claim Intelligencer. September 22, 2017. Accessed October 01, 2017. http://www.thelegalintelli- that Hernandez’s opting out of the concussion settlement gencer.com/id=1202798746710?slreturn=20170901204956. 10. Ibid means that his family cannot sue the league, the defense 11. Belson, Ken. “Aaron Hernandez Found to Have Severe C.T.E.” Nytimes.com. September 21, 2017. Accessed October 01, 2017. https://www.nytimes.com/2017/09/21/sports/aar- will not be likely to hold. The NFL has currently declined on-hernandez-cte-brain.html. 12. Bieler, Des. The Washington Post. August 07, 2017. Accessed October 25, 2017. https:// to comment on the suit, and has not made any comments www.washingtonpost.com/news/early-lead/wp/2017/08/07/boomer-esiason-says-he-and- regarding the medical findings.11 all-football-players-probably-have-cte/?utm_term=.2a4a8ea66b8f 13. Ibid

14. Ibid BU PRE-LAW REVIEW FALL 2017 15. Ibid. 9 Sex-Education Reform in the Modern United States Rebecca Gausepohl, CAS ‘18 outh and young adults aged 15-24 account for approx- 49% of 15–19 year old males who have had sexual intercourse.12 imately half of the 20 million new cases of STD’s, Legislators in favor of REHYA argue that only teaching absti- contracted annually in the United States.1 These new nence fails to deter all teenagers from becoming sexually active, cases of sexually transmitted diseases cost the US and their lack of education leaves them exposed to high risk of $16 billion in health care costs every year.2 In addition pregnancy and STDs. It is hypothesized that medically accurate to high risk of STD contraction among American youth, teen and inclusive sex-ed would reduce teen risk to pregnancy and pregnancy is one of the highest rates of incidence among devel- STDs and therefore reduce national health care costs. A varia- Y 3 oped nations, at 43 out of 1000 women aged 15-19 in 2013. The tion of REHYA called California Healthy Youth Act took effect in high health and economic cost of the spread of STDs coupled California in January 2016.13 Massachusetts has also proposed with the comparatively high adolescent pregnancy rate has led to the Healthy Youth Act for the 2017 session.14 Perhaps studies recent introductions of sex education policy reforms in both state and results from state laws will give guidance nationally. and national legislatures. Said policy reforms target abstinence only until marriage teachings and look to replace old curriculum The move in state legislation to mandate comprehensive sex with medically accurate information. education reflects the growth in approval of comprehensive sex education despite the inability to pass REHYA on the national However, the history of sex education legislation in the United level. The Archives of Pediatric and Adolescent Medicine, States has been strongly characterized by abstinence teach- surveyed U.S. adults in 2006 and found more than eight in 10 ings and influenced by religious values. The first law regarding respondents support comprehensive sex education.15 Planned abstinence based sexual education, the Adolescent Family Life Parenthood Federation of America and the National Women’s Act, passed in 1981 gave funding to programs which promoted Law Center’s survey results indicated that a most voters, includ- chastity in both community and faith-based organizations.4 Said ing Republicans and Christians, support comprehensive sex legislation was then expanded in 1996 with Title V Abstinence education.16 Only Until Marriage (AOUM) program which directed funding to programs which both taught abstinence, and restricted medically Opponents of REHYA argue that the changes to sex education accurate information regarding but not limited to STD’s, HIV, would be difficult to enforce. Some opponents also see the sexuality and contraception.5 The AOUM program became a absence of AUOM education as a contradiction with traditional common cornerstone of Sex Education from 1996-2006. One Christian values. Others stress that knowledge of safe sex explanation beyond Title V AOUM program, for a decade dom- will lead to sexual activity increasing in younger age groups. inated in AOUM teachings was the extension of federal funding However, the effects of comprehensive sex-ed in other devel- through the Community-Based Abstinence Education (CBAE) oped nations have seen a more rapid decrease of teen preg- program, passed in 2000.6 In total, the US has spent 2 billion nancy and teen exposure to STDs than developed nations with dollars domestically on AOUM programs from the enactment of AOUM sex education such as the US. As the American public the Family Life Act in 1981 to 2017.7 Despite the aforementioned await the congressional response to REHYA, one thing is certain. financial investment, the US trails other developed nations in The STDs and pregnancies plaguing American youth have not preventing STDs and unwanted teen pregnancies.8 been combated effectively in the past, and have cost the con- gress billions of dollars. Reform is in order. But, questions remain This policy is now being challenged. The Real Education for as to how and when those reforms will take place. Healthy Youth Act (REHYA) would fund comprehensive sex education, instead of the abstinence education currently funded by the government. These new programs would require pro- grams to be inclusive of LGBTQ youth, necessitate medically Sources accurate information, and forbid the withholding of information 1. Office of Adolescent Health, Adolescent Development and STDs (HHS.org) 9 2. Centers for Disease Control and Prevention, CDC Fact Sheet: Reported STDs in the about HIV. If passed, federal funding to programs which fail the United States High Burden of STDs Threaten Millions of Americans, (CDC, 2016), 1 aforementioned requirements and/or promote gender stereo- 3. Guttmacher Institute, Adolescent Sexual and Reproductive Health in the United States (guttmacher.org) types, and are not consistent with public health ethics would end. 4. John S. Santelli, Abstinence-Only-Until-Marriage: An Updated Review of U.S. Policies and Programs and Their Impact (Journal of Adolescent Health, September 2017), 274 However, REHYA maintains that sex education is not required 5. Santelli, Abstinence-Only-Until-Marriage: An Updated Review of U.S. Policies and of public schools, but rather schools which opt to teach sex-ed Programs and Their Impact, 274 6. Santelli, Abstinence-Only-Until-Marriage: An Updated Review of U.S. Policies and would have to comply with the new regulations. REHYA has Programs and Their Impact, 274 been introduced in the 112th, 113th and 114th Congress; three 7. Santelli, Abstinence-Only-Until-Marriage: An Updated Review of U.S. Policies and Programs and Their Impact, 274 times prior to Senator Corey Booker’s introduction on to the 8. Guttmacher Institute, Adolescent Sexual and Reproductive Health in the United States 10 9. Human Rights Campaign, Real Education for Healthy Youth Act, (hrc.org) 115th Congress. All three times the bill has not made it out of 10. Congressional Research Service, Summary: H.R.3602 — 115th Congress (2017-2018), subcommittee.11 (congress.gov) 11. Congressional Research Service, Summary: H.R.3602 — 115th Congress (2017-2018) 12. Guttmacher Institute, Adolescent Sexual and Reproductive Health in the United States 13. The California Sexual Health Education Roundtable, California Healthy Youth Act (CA Arguments in favor of reforming sex-ed policy in the United Education Code Sections 51930-51939) Frequently Asked Questions, (ACLU of Northern States cite the failure of current AOUM programs to decrease California) 14. Planned Parenthood Advocacy Fund of Massachusetts, Inc., The Healthy Youth Act teen pregnancies and youth risk of STD’s as much as most An Act Relative to Healthy Youth S 234, H 2053, (Planned Parenthood Advocacy Fund of Massachusetts, Inc.) other developed countries. Abstinence driven education also 15. Human Rights Campaign, Real Education for Healthy Youth Act BU PRE-LAW REVIEW FALL 2017 fails on account of the unmarried 44% of 15–19 females and 16. Human Rights Campaign, Real Education for Healthy Youth Act 10 How Schizophrenia Affects Competency

DuringBy Anna Carin Irving Capital Punishment Sentencing anetti v. Quarterman ignited the discussion on a highly treatable form of Schizophrenia that allows indi- whether a mentally ill inmate should be permitted viduals to work normally in their daily lives but may cause to receive capital punishment.1 The legitimacy of highly aggressive outbreaks, as well as delusions and mentally impaired defendants to avoid the death hallucinations.11 penalty remains questionable, because diseases such as severe Schizophrenia may allow an individual to In 1992, Scott Panetti was sentenced to death after bru- Pappear competent even if their reasoning skills are impaired. tally executing his girlfriend’s parents, even though he was diagnosed with severe Paranoid Schizophrenia prior to his Courts have distinguished between a defendant’s mental conviction.12 Panetti was subsequently placed on death row capability for comprehending their trial and comprehending because he appeared to act rationally even though he was their criminal responsibility. According to the American unable to comprehend his conviction.13 While Panetti did Association of Psychiatry and Law, even if a defendant is not actually understand the reason for his trial, he originally found competent to stand trial, they are not automatically appeared to be a functioning adult by representing himself assumed to also understand their actions; the defendant 2 in court. However, his capacity to function in a professional should be permitted to try an insanity defense. However, in setting, such as a courtroom, quickly dissipated; he began the Panetti v. Quarterman case, the Fifth Circuit argued that wearing cowboy outfits to hearings and calling Jesus Christ an inmate may be executed under the condition that he does to the witness stand revealing that Panetti was unfit to not fully understand the reasoning behind his sentencing; 3 stand trial and ultimately unable to remain competent for he only needs to be aware of the impending punishment. his conviction.14 It appears that Scott Panetti may not have The Fifth Court ultimately prevented Panetti from receiving been mentally competent to stand trial for his conviction of a separate insanity hearing, since they determined he was First Degree Murder and ultimately did not understand his competent to stand trial. As a result, the question arises of sentencing. whether a defendant in a criminal case can be executed if they are not aware of the reasoning behind their punishment. The decision by the Fifth Circuit to prevent Panetti from receiving a hearing to present his insanity case could rep- Competency is vital during a criminal case trial. In the Dusky resent a flawed analysis of Panetti’s mental incompetence, v. United States case, the Supreme Court determined that based on subjective analyses by witnessing psychiatrists. the competency required to stand trial in a criminal case The Fifth’s Circuit’s interpretation of a former case, Ford is based minimally on a defendant’s ability to discuss the 4 v. Wainwright, overlooks the possibility that Schizophrenia case with their attorney and appear rational. Although may inhibit a defendant’s ability to comprehend his convic- defendants are expected to assist counsel to formulate tion and punishment.15 As it remains today, each individual an effective defense strategy, it is most important for the incompetency case cannot be held under the same require- defendants to understand their criminal charges and implica- ments as other previous cases. The Supreme Court ruled tions. Ultimately the defendant needs “to assist in preparing in Panetti’s case that there is no case which governs “all his defense”, which may include “[making] choices about competency determinations”.16 The future for individuals whether to have a jury trial, to testify, and to cross-examine 5 who cannot rationalize for themselves is left in the hands witnesses”. of courts who may potentially sentence them to death for crimes they do not comprehend. However, the evaluating clinicians are given no assistance in determining what constitutes an incompetent defendant.6 In Godinez v. Moran, the Supreme Court attempted to Sources 1. Panetti v. Quarterman, 551 U.S 930 (2007). identify the requirements of incompetency in the courtroom. 2. Mossman, Douglass. Noffsinger, Stephen G. Ash, Peter. Prierson, Richard L. Gerbasi, Joan. Hackett, Maureen. Lewis, Catherine F. Pinals, Debra A. Scott, Charles L. Sieg, Karl G. Wall, The Court stated that individual states may adopt a standard Barry W. Zonana, Howard V. “AAPL Practice Guideline for the Forensic Psychiatric Evaluation of evaluation but those requirements are not necessary; the of Competence to Stand Trial”. The Journal of the American Academy of Psychiatry and the Law 35 (2007): 4, 10. determination of mental incompetence remains open-ended 3. lbid. 7 4. Dusky v. Supreme Court, 362 U.S. 402 (1960). for the state courts. 5. lbid. 6. lbid. 7. Godinez v. Moran, 509 U.S 389 (1993). Schizophrenia, however, remains difficult to diagnose by 8. Schizophrenia.” National Institute of Mental Health. Accessed October 02, 2017. https://www. nimh.nih.gov/health/statistics/prevalence/schizophrenia.shtml. courts. Schizophrenia affects approximately 1% of the gen- 9. lbid. 10. Lakhan, Shaheen E., and Karen F. Vieira. “Schizophrenia pathophysiology: are eral population today and continues to be an extraordinarily we any closer to a complete model?” Annals of General Psychiatry 8, no. 1 (2009): 12. difficult neurological disease to diagnose.8 Common symp- doi:10.1186/1744-859x-8-12. 11. Schizophrenia.” Mental Health Treatment, mentalhealthtreatment.net/schizophrenia/. toms include delusions, hallucinations, altered sense of self, Accessed 2 Oct. 2017. 9 12. lbid. and antisocial behavior. The forms of Schizophrenia vary: 13. lbid. the most prevalent form is Paranoid Schizophrenia, which 14. lbid. 15. Ford v. Wainwright, 477 U.S. 399 (1986). 10 BU PRE-LAW REVIEW FALL 2017 Panetti was diagnosed to have. Paranoid Schizophrenia is 16. lbid. 11 Death Penalty in Singapore and the United

StatesBy Neha Doraiswamy Iyer , QST ‘20 he thin line between finality and fairness fades and intellectual disabilities.10 Even though the analysis away when a convict is sentenced to the death revealed that Dharmalingam had borderline intellectual penalty, especially when there are other factors in functions, the judge rejected this appeal on the grounds the case that could have been considered. Death that his mental disability was not enough to impair his penalty raises a question in its extent in regard for actions regarding the crime.11 humanity and ethics. Though the death penalty practice is of ancient originality, many countries continue to use such In the United States, the last person to be sentenced to T 12 punishment and claim its efficacy in handling crime. the death penalty was Cecil Clayton in 2015. 8% of the Clayton’s brain was missing due to a sawmill accident.13 He Capital punishment is an integral part of the legal system in was unable to understand the significance of his execution. the Republic of Singapore. One can face the death penalty He had an IQ of 71 and believed God would rescue him at for several capital offences including piracy, perjury, kid- the last minute, “after which time he will travel the country napping and importing drugs. The execution rate per capita playing the piano and preaching the gospel,” the lawyers has decreased significantly since 1998, from 13.86 execu- said.14 Clayton’s execution was fulfilled. Clayton was dead tions per one million people1 to 0.53 per million people.2 In 3 within minutes of the procedure and only one drug was 2014, Singapore amended the Misuse of Drugs Act and used for his execution. conferred upon the court the discretion to modify a death penalty to life-imprisonment if the convict was suffering In the United States, the death penalty is reserved for from a mental disability. those crimes that usually result in the death of a victim. There are limited offenses for which one could face exe- On the other hand, only 31 states in the United States prac- cution, and the method of execution itself is not used for tice the death penalty. This sentence is used specifically deterrence of crime. For countries like Singapore, where for murder and related offenses.4 While 2114 convicts have 5 security lies in prevention, the death penalty and its been executed since 1976 , there has been a significant excruciating method is believed to be an effective way decline in the number of deaths per year. Death penalties of keeping crime away and eradicating criminals from are exempt for convicts with mental disorders according to society altogether. The ethics of death penalty have been the Eighth Amendment, which came about after the case 6 debated worldwide and cases such as Nagaenthran Atkins v Virginia. Dharmalingam v Singapore15 speak volumes for the opponents of the death sentence. Whether the law failed Significant differences between Singapore and the United the defendant or the judge truly had reason to deny his States’ death penalty lie in the method of execution, the re-sentencing is debatable; however, what remains is that enforcement and the types of offenses that face the pun- Mr. Dharmalingam will face the death penalty – sooner or ishment. Singapore still uses the 19th-century technique later, unannounced. of hanging, which has been removed from many countries and substituted with lethal injections or electrocution. Not only is hanging the least merciful but also is it a slow, painful procedure in comparison to lethal injection. Though both countries deem it unconstitutional to execute mentally ill persons, there seems to be a disregard for the scientific analysis made on some convicts’ psychological health.

In November 2010, Singapore national Mr. Nagaenthran Dharmalingam was convicted and sentenced to death for smuggling 42.72 grams of diamorphine into the country.7 Sources 1. http://www.unodc.org/pdf/crime/10_commission/10e.pdf The court dismissed his appeal due to the government’s 2. https://www.deathpenaltyworldwide.org/country-search-post.cfm?country=Singapore mandatory sentencing of death penalty to any drug 3. http://statutes.agc.gov.sg/aol/search/display/view.w3p;page=0;query=DocId%3A%- 22c13adadb-7d1b-45f8-a3bb-92175f83f4f5%22%20Status%3Apublished%20 offenses. In April 2017, Mr. Dharmalingam sought to alter Depth%3A0;rec=0 4. https://deathpenaltyinfo.org/aggravating-factors-capital-punishment-state his sentence to life-imprisonment under the abnormality 5. https://deathpenaltyinfo.org/documents/FactSheet.pdf 8 6. Atkins v Virginia 536 U.S. 304 (2002) of mind provision. On top of his claim on his ignorance of 7. https://www.supremecourt.gov.sg/docs/default-source/module-document/judgement/ the drug, he contended that his diminished mental ability, nagaenthran-al-k-dharmalingam-v-pp-(final)-pdf.pdf 8. Ibid. in combination with his loyalty towards his gang, led him 9 Ibid. 10. Ibid. to perceive immense threat from the leader and eventually 11. Ibid. smuggle the drug into the country.9 He then underwent 12.Clayton v Missouri 995 S.W.2d 468 (1999) 13. Ibid. 14. Ibid.

BU PRE-LAW REVIEW FALL 2017 extensive medical analyses for alcohol use disorder, ADHD 15. Ibid. 12 The Controversy Surrounding Collective Bargaining By Andrew Kelbley here are many ongoing arguments regarding regular operations; in that case, unions would have to divert collective bargaining; currently, one of the most funds away from political contributions. Thus, because pressing is whether it is legal to require public the collection of mandatory union fees indirectly supports sector employees to pay union fees.. Historically, funding for predominantly Democratic candidates, these states have allowed unions to enforce fee fees may stand in violation of employees’ First Amendment requirements; the National Labor Relations Act of 1935 rights and ultimately be rendered unconstitutional. Tstates that “periodic dues” and “initiation fees” can be “uniformly required” by unions so long as they are not There are a variety of factors for the Supreme Court to “excessive or discriminatory”.1 The constitutionality of this consider when hearing Janus V. AFSCME. While the practice, however, has recently come into question, as the defendant has precedent on its side, in addition to a wealth Supreme Court prepares to hear Janus v. the American of historical union accomplishments, Mr. Janus and his Federation of State, County, and Municipal employees in supporters have a compelling constitutional argument to 2018. make as well. Abood V. Detroit Board of Education2 was the last time the Court considered the legality of union fee requirements for public sector employees. In this case, the Supreme Court ruled in favor of labor organizations by determining that if the required “service charges are used to finance expen- ditures by the Union for collective bargaining, contract administration, and grievance adjustment purposes, the agency shop clause is valid”.3 Thus, while a union can- not force anyone to join, or to agree with its views, it can require all employees to pay fees for its upkeep.

Some view these mandatory fees as necessary and fair because all public sector employees benefit from the advances made by the unions representing them, with teachers’ unions as a telling example. Until the advent of teachers’ unions in the 1960s and 70s, their salaries, hours, benefits, and class sizes were much less favorable because they were determined by local school boards.4 Presently, both the union and the school board must agree to a contract addressing these variables, and as a result, class sizes are smaller and working conditions are better.5 For example, between 1979 and 2010, the average teach- er’s salary in the United States increased by over $10,000, adjusting for inflation.6 Such an increase in pay is the result of collective bargaining activity, which benefits all teachers, regardless of whether or not they are union members.

While Abood V. Detroit Board of Education did set the precedent in 1977 that fee requirements for public sector unions do not violate the Constitution, the Court’s decision in Janus V. AFSCME may be influenced by recent political developments. In 1990, public sector unions spent just under fourteen million dollars on political contributions, Sources while in 2016 they spent over sixty million, the vast majority 1. National Labor Relations Act of 1935, 29 U.S.C. § 158. 7 2. D. Louis ABOOD et al., Appellants, v. DETROIT BOARD OF EDUCATION et al. (May 23, of which went to Democratic candidates. In fact, out of the 1977) (Legal Information Institute, Cornell Law School, Dist. file). 3. Ibid. nineteen politicians who received the most money from 4. Koppich, Julia E. “Teacher Unions 101.” Educational Horizons 90, no. 4 (April 2021): 10-13. public sector unions in 2016, everyone was a Democrat.8 Accessed October 22, 2017. https://www.jstor.org/stable/42926627?Search=yes&resultItem- Click=true&searchText=teacher&searchText=union&searchText=fee&searchUri=%2Fac- Though these campaign contributions were not technically tion%2FdoBasicSearch%3FQuery%3Dteacher%2Bunion%2Bfee&refreqid=search%3Ab- daa0be091aaba532d10fb6241372094&seq=2#page_scan_tab_contents. funded by fees collected from non-members, such clear 5. Ibid. 6. “Estimated average annual salary of teachers in public elementary and secondary schools, political alignments raise concerns. If non-members had by state or jurisdiction.” Chart. Institute of Education Sciences. May 2010. Accessed October 1, the option to not pay fees, many would not continue pay- 2017. https://nces.ed.gov/programs/digest/d10/tables/dt10_083.asp. 7. “Public Sector Unions.” OpenSecrets.org. Accessed October 01, 2017. https://www.opense-

ing, and unions would have less income to support their crets.org/industries/indus.php?ind=P04%2B%2B. BU PRE-LAW REVIEW FALL 2017 8. Ibid. 13 Can the President Pardon Himself? By Benjamin Levy n August 4, 1974, Richard Nixon was the first Others argue that there are certain parameters which restrict President in American History to resign from the the president from self-exoneration of any collusion-related Oval Office due to his involvement in the cover of crimes. Even though the “Commander-In-Chief” clause of stealing documents and wiretapping phones from the Constitution allows the president to pardon any individ- the DNC headquarters at the Watergate Hotel, in ual guilty of a crime, it does not allow that individual to be Washington D.C.1 Hoping to move the country past this scandal, pardoned if he or she is under impeachment.11 Legal profes- OPresident Gerald Ford issued a full pardon of President Nixon sionals, notably Laurence Tribe and Richard Painter, do not on September 8 1974, absolving him of any and all crimes he believe the President has the authority to be the judge of his may have committed, including obstruction of justice, criminal own crimes and wrongdoings, citing the predominant opinion cover up, and abuse of his office by delaying and impeding of the Department of Justice that a president cannot absolve the Impeachment investigation.2 Now, over 40 years later, himself.12,13 In fact, in 1974, acting Assistant Attorney General President Donald Trump has come under public scrutiny for Mary Lawton outlined a memo indicating that a president par- his assertion that he can pardon himself, thus launching a new doning himself breaks “the fundamental rule that no one may legal debate on pardoning powers. The following paper will be a judge in his own case”.14 Based on the shared opinions attempt to answer whether or not the President of the United of Tribe, Painter, and the Department of Justice, the President States has the authority to pardon himself and his associates would be breaking a vital rule of not judging his personal case and, if so, what the implications of this would be. or investigations.

One example of an unprecedented pardoning situation is With two contrasting legal opinions on the constitutional nature President Bill Clinton’s controversial decision to pardon billionaire of presidential pardons, it appears that the answer of whether Marc Rich.3 Rich was once considered America’s most wanted or not the president can pardon himself remains uncertain. white collar criminal and was indicted by a federal grand jury Therefore, if Robert Mueller’s Russia investigation finds any evi- on income tax evasion ($50 million) charges.4 Moreover, he dence that Donald Trump’s presidential campaign coordinated was accused of breaking sanctions numerous times, includ- and colluded with the Russian government, the president may ing profiteering from trade with the dictatorial governments of or may not face legal ramifications for the decision he makes Muammar Gaddafi’s Libya and Fidel Castro’s Cuba.5 President in a self-pardon. If he is impeached and initiates a self-pardon Clinton’s decision to pardon Rich, albeit an unanticipated action process, his supporters can take some solace in a Republican- by many politicians, did not contravene any section of the US controlled court system.15 Still, since this act would be entirely Constitution.6 Therefore, one can speculate President Trump will unprecedented, it may be a futile endeavor as there are clear use a similar tactic in order to protect himself before more serious restrictions of self-pardoning whilst under impeachment. charges are revealed. Sources One interpretation of the U.S. Constitution yields that the 1. History.com Staff. “Watergate Scandal.” History.com. 2009. Accessed October 22, 2017. president’s right to pardon himself is protected under Article http://www.history.com/topics/watergate. 2. Winsor, Morgan. “Richard Nixon, Bill Clinton Both Faced Impeachment Over Obstruction II, Section II of the Constitution, otherwise known as the of Justice.” ABC News. Accessed September 28, 2017.http://abcnews.go.com/US/richard- nixon-bill-clinton-faced-impeachment-obstruction-justice/story?id=47460022. “Commander-In-Chief clause, which states that the president 3. Holman, Kwame. “Clinton’s Pardon of Marc Rich.” PBS. Accessed September 28, 2017. has “the power to grant reprieves and pardons for offenses http://www.pbs.org/newshour/bb/politics-jan-june01-richpardon_01-26/. 7 4. Baghdjian, Alice. “Marc Rich, ‘King of Oil’ Pardoned By Clinton, Dies at 78.” Reuters. June against the United States”. In other words, the president 26, 2013. Accessed September 28, 2017. https://www.reuters.com/article/us-marcrich/ marc-rich-king-of-oil-pardoned-by-clinton-dies-at-78-idUSBRE95P0CO20130626. can use his/her judgment to forgive any American citizen for 5. Berg, Eric N. “Marc Rich Indicted In Vast Tax Evasion Case.” . a potential crime that he or she may have committed. For September 19, 1983. Accessed September 28, 2017. http://www.nytimes.com/1983/09/20/busi- ness/marc-rich-indicted-in-vast-tax-evasion-case.html?mcubz=1. instance, President Donald Trump granted controversial 6. Jr., E.J. Dionne. “Bill Clinton’s Last Outrage; The President’s Defenders Feel Betrayed by His Pardon of Marc Rich.” Brookings. July 28, 2016. Accessed Arizona Sheriff Joe Arpaio a full pardon on August 25, 2017 in October 22, 2017. https://www.brookings.edu/opinions/ bill-clintons-last-outrage-the-presidents-defenders-feel-betrayed-by-his-pardon-of-marc-rich/. order to appease his anti-immigration base of supporters. In a 7. Staff, LII. “Article II.” LII / Legal Information Institute. November 12, 2009. Accessed lawsuit entitled Melendes v. Arpaio, Arpaio was charged with September 28, 2017. https://www.law.cornell.edu/constitution/articleii#section2. 8. Melendres v. Arpaio. CV-07-2513-PHX-GMS (2012). being in criminal contempt of court, racial profiling and unlawful 9. Logan, Bryan. “’A Middle Finger to America’: What People are Saying About Trump’s First 8 Presidential Pardon.” Business Insider. August 26, 2017. Accessed October 22, 2017. http:// traffic stops targeting Latinos. The action led to a mixed public www.businessinsider.com/trump-pardons-joe-arpaio-reactions-2017-8/#jeff-flakes-primary- reaction ranging from total opposition to full support.9 challenger-kelli-ward-applauded-trump-and-called-arpaios-actions-as-sheriff-heroic- 10. Turley, Jonathan. “Analysis | Yes, Trump Can Legally Pardon Himself or His Family. No, He Shouldn’t.” The Washington Post. July 21, 2017. Accessed September 28, 2017. https://www. washingtonpost.com/outlook/yes-trump-can-legally-pardon-himself-or-his-family-no-he-should- Although, the FBI Special Counsel led by Robert Mueller is nt/2017/07/21/6134fb12-6e2d-11e7-b9e2-2056e768a7e5_story.html?utm_term=.13decf054a28. 11. Tribe, Laurence H., Richard Painter, and Norman Eisen. “Opinion | No, Trump Can’t Pardon expanding his investigation into President Trump’s alleged Himself. The Constitution Tells Us So.” The Washington Post. July 21, 2017. Accessed collusion with the Russian government during the 2016 September 28, 2017. https://www.washingtonpost.com/opinions/no-trump-cant-pardon-him- self-the-constitution-tells-us-so/2017/07/21/f3445d74-6e49-11e7-b9e2-2056e768a7e5_story. Presidential election. As this occurs, there remains uncertainty html?utm_term=.94274ab9fd69. 12. Ibid. in President Trump’s decision to pardon himself if the inves- 13. Melber, Ari, Br, and On Katz. “Can the President Pardon Himself?” NBCNews.com. July 21, tigation finds any incriminating evidence against him. With 2017. Accessed September 28, 2017. https://www.nbcnews.com/politics/white-house/ can-president-pardon-himself-n785181. this response in mind, if the president can pardon himself as 14. 14. Lawton, Mary. “Residential or Legislative Pardon of the President.” Department of Justice. some legal experts believe he can, there is sure to be an even August 5, 1974. residential or Legislative Pardon of the President. greater emotional response by everyone, both supporters and 15. “Nixon’s Justice Department Warned That The President Can’t Pardon Himself.”

BU PRE-LAW REVIEW FALL 2017 ThinkProgress. Accessed September 28, 2017. https://thinkprogress.org/ opponents.10 nixons-justice-department-warned-that-the-president-can-t-pardon-himself-f70228c8b9ef/. 14 Injustice Behind Bars By Wenyin Lu, CAS ‘18 veryone within the U.S territory is protected under the other people. Fourteenth amendment.1 However, people behind bars seem to be excluded from the Fourteenth Amendment by Inmates with different types of disabilities are marginalized to the Prison Litigation Reform Act (PLRA). In 1995, PLRA different degrees. Inmates with ambulatory disabilities, constituting was passed by Congress in hope to bar frivolous lawsuits about 10 percent of the inmate population, have to demonstrate filed by prisoners in federal courts.2 The PLRA contains several distinct physical injury to fulfill the physical injury requirement.20 Eclauses that aim to complicate the legal proceedings also the due Otherwise, their physical injury could have just been overlooked process for inmates who intend to file complaints to the court: it as mere deterioration. Inmates with cognitive disabilities, about 2 requires prisoners to seek all administrative remedies before filing in 10 prisoners and 3 in 10 jail inmates, are the most vulnerable a suit under the exhaustion clause with strict limitations on filing because they are the majority of prisoners who suffer from segrega- attempts and proof of physical injury. tion, and thus their mental instability prevents them from exhausting the administrative levels.21,22 As the Supreme Court once stated in Under the exhaustion clause, PLRA requires prisoners to file a McCarthy v. Madigan, “the right to file a court action” may be the grievance (complaint) and appeal from the lowest to the highest last remaining right of a prisoner, given his diversion from other administrative level for remedies.3 The Supreme Court issued an privileges such as suffrage.23 However, what PLRA does is to take explicit interpretation of “exhaustion” in Woodford v. Ngo that refuted away the last remaining right of prisoners in complete neglecting of untimely and “procedurally defective administrative appeal” and the Fourteenth Amendment. Indeed, frivolous and repetitive filings demanded proper exhaustion process from prisoners.4 If prison- will diminish and jeopardize court’s efficiency. However, maintaining ers complete forms erroneously or fail to identify all defendents, court’s efficiency should not subject prisoners’ approach to justice they have to restart or wait till another round. In Ross v. Blake, the to tedious and convoluting administrative process. At the very least, Supreme court further mandates exhaustion process and no courts the physical injury and filing fee requirement have disfavored many can excuse with any “special circumstances”.5,6 The only exception marginalized prisoners. is that prisoners only need to exhaust available remedies as Justice Elena Kagan wrote in her opinion on Ross v. Blake.7 If no prisoners The criminal justice system should consider revoking the need for can identify the process or the administrative staff refuse to provide physical injury and the filing fee requirement and provide aids to available remedies, then the exhaustion process is not capable and those marginalized prisoners by recruiting social workers or third- not accessible.8 Nevertheless, prisoners in any correctional facility party volunteers, who may have professional knowledge and inde- must comply with their facilities’ grievance policy, despite the com- pendent status that can provide sufficient knowledge to proceed. plexity and difficulties, to exhaust the mandatory process. Otherwise, few can tell whether the administrative system has been abused for its internal investigation nature--a characteristic without While the prisoner receives responses at every degree of the surveillance and supervision. In addition, the system should consti- administrative process, the court will consider whether to hear the tute a standard administrative process so that prisoners have fewer case only with the last degree of determination.9 Yet, the court has difficulties in understand the procedure and the system cannot be further barriers--filing fee clause.10 If the court has dismissed three abused by prison staff that aim to hamper justice to escape their suits of the same inmate, the inmate cannot file further lawsuits in own punishment. forma pauperis, a unique status granted to people in need omitting certain court payments to proceed.11 Still, the prisoner must pay in full the court filing fees even if in monthly installments.12 If the inmate Sources has three futile filings, they must pay fees in full before the next 1. U.S. Const.am.4. 13 2. Woodford v. Ngo (548 U.S. 81.(2006)). Accessed Oct 6, 2017. https://www.law.cornell.edu/supct/html/05- lawsuit. The court can dismiss not only cases that fail to have suf- 416.ZO.html ficient standings, but also claims against defendants who are legally 3. 42 U.S.C.§1997e(a). 14 4. Woodford v. Ngo (548 U.S. 81.(2006)). Ibid. immune from monetary relief. The immunity of these defendants is 5. Ross v. Blake. 136 S. Ct. 1850 (2016). Accessed Oct 22, 2017. sufficient for the court to dismiss any suit. 6. Valencia, Celeste and Dike, Charles. C. “Prison Litigation Reform Act: Congressional Statute Not Open to Judicial Discretion”. Accessed Oct 6, 2017. http://jaapl.org/content/45/1/116 7. Vladeck, Steve . Opinion analysis: Justices hold door open to prisoner suit even while rejecting “special The exception that allows a prisoner to file a fourth suit in forma circumstances” exception to PLRA exhaustion requirement, SCOTUSblog (Jun. 7, 2016, 11:33 AM), Accessed Oct 22, 2017. http://www.scotusblog.com/2016/06/opinion-analysis-justices-hold-door-open-to-prison- pauperis is when the inmate is under the immediate threat of er-suit-even-while-rejecting-special-circumstances-exception-to-plra-exhaustion-requirement/ physical injury, which is another requirement in PLRA.15,16 However, 8. Casey C. Sullivan, Esq. “The Supreme Court Just Made JailHouse Lawsuits a Bit Harder.” June 6, 2016. Accessed Oct 22, 2017. this principle becomes problematic when it comes to inmates 9. Ibid. 17 10. 28 U.S.C. §1915(b). who suffer from mental or emotional injuries. Having no physical 11. Morris, Anna Little. “Twenty Years After Reform, Inmate Litigation Still Crowds Dockets.” Feb 2017. signs of injury, they cannot seek justice. This limitation violates the Accessed Oct 6, 2017. 12. 28 U.S. C. § 1915 (g)- Proceedings in forma pauperis. Cornell Law School. Accessed Oct 22, 2017. https:// Fourteenth Amendment and is therefore unconstitutional. According www.law.cornell.edu/uscode/text/28/1915 to Human Rights Watch, Jarriett v. Wilson is one of many cases 13. Prison Litigation Reform Act. FindLaw. Accessed Oct 22, 2017. http://criminal.findlaw.com/criminal-rights/ prison-litigation-reform-act.html where the court overlooked physical suffering of prisoners due to 14. Benedetti, Lisa. “What’s Past is Prologue: Why the Prison Litigation Reform Act Does Not--And Should prior injury or mental illness and thus acquiesced to no compensa- Not--Classify Punitive Damages as Prospective Relief.” Washington Law Review Association. 2016. P141. 18 Accessed Oct 22, 2017. https://digital.lib.washington.edu/dspace-law/bitstream/handle/1773.1/257/Benedetti_ tion based on the physical injury requirement clause. DTPed%5B1%5D.pdf?sequence=1 15. “Know Your Rights: The Prison Litigation Reform Act (PLRA)”. ACLU. Accessed Oct 22, 2017. https://www. aclu.org/sites/default/files/images/asset_upload_file79_25805.pdf Moreover, not every prisoner has the capabilities to file lawsuits, 16. 42 U.S.C.§ 1997e(e). which is the case with illiterate inmates, inmates not speaking 17. Human Rights Watch. “No Equal Justice—The Prison Litigation Reform Act in the U.S”. Accessed Oct 6, 2017. https://www.hrw.org/report/2009/06/16/no-equal-justice/prison-litigation-reform-act-united-states English, and inmates with disabilities. Illiterate inmates have to seek 18. Ibid. 19. Erika Eichelberger, Punished Twice, VICE News, 2016. https://news.vice.com/story/ help from others. But they cannot ask the prison staff because the prisons-basically-ignore-the-americans-with-disabilities-act 19 staff may be subjects of the grievance. Even if inmates turn to other 20. Disabilities Among Prison and Jail Inmates, US Department of Justice, 2011-2012. 21. Ibid. inmates, they are likely to put themselves in a vulnerable position in 22. ACLU. The Dangerous Overuse of Solitary Confinement in the United States. 2014. P8. which they have a high chance of being exploited for the interest of 23. Human Rights Watch. Ibid. BU PRE-LAW REVIEW FALL 2017 15 Mass Incarceration By Ashley Nunez he War on Drugs initiated by the Nixon Administration revolutionized the criminal justice The policies were implemented from 1975-1996, and have system. A reform of criminal justice methodology been criticized as ineffective and cruel because they have ushered in a philosophical shift that paved the not had any significant effect on crime rate. It has shifted way for new policies. These policies did away with the sentencing power from judge to prosecutor and as a result, many judges have to find loopholes in which people indeterminate sentencing and implemented severe penal- 8 Tties for drug crimes.1 This ultimately planted the seeds for plead guilty to avoid harsher sentences. the systematic mass-incarceration within the United States seen today, which disproportionately affects people of color. The political entanglement of the judicial and legislative system is seen in the federal Violent Crime Control and In the early 1980s severe drug laws were enacted that Law Enforcement Act of 1994. This law stipulated that criminalized a disproportionate number of blacks, despite states applying for a federal grant for prison construction the fact that blacks and whites used drugs similarly.2 The prove an increase in the percentage of violent offenders “Tough on Crime” political campaign also stigmatized racial along with longer prison sentences.9 By creating this law, minorities such as the New York Rockefeller Laws that states are incentivized to increase sentences for crimes on introduced harsher punishment for drug-related crimes, a legislative level. setting a precedent that has had implications into the cur- rent day. It is clear there is wide-spread systematic racism deeply ingrained in American consciousness that influences Today, the United States is the world’s leader in incarcera- legislative decision. Policies enacted have not deterred tion. Currently, over 1.3 million Americans are serving sen- crime rates, but succeed in criminalizing a vast number tences.3 About 60% of that population is black and Latino, of Americans from disadvantaged groups. Until the issue despite those groups only making up 13% and 16%, of the of drugs is treated as a public health concern rather than national population respectively. In the state of Louisiana, politicized, minority groups will continue to be scapegoats which has the highest incarceration rates in the country, in a system in dire need of reform. 66% inmates are black4. In Alaska, Native Americans make up 38% of the prison population, despite consisting of 15% of the general population. Native-Hawaiians represent 39% of the prison population, but are only 10% percent of the total population of Hawaii. In each one of these specific instances, there are stark racial disparities and overrep- resentation within the U.S. incarceration rates.5 What can account for this nation-wide phenomenon? Factors such as implicit racial bias, socio-economic inequity and ineffec- tive, unduly harsh policies are involved.

Policies such as the Three Strikes rule, a law enacted in 1994 and adopted by 28 states, mandate that an offender who has committed three felonies on different occasions serve between 25 years and life in prison.6 It was designed to be harsh on repeat offenders of serious crimes. However, it has succeeded in imprisoning a vast majority of minor offenders in the process. In states like California, their interpretation of “strike” involves non-violent felonies. This clause imprisons many low-level offenders, drastically increasing the prison population.

Another policy, known as the federal Mandatory Minimum sentencing law, requires a judge to impose a minimum Sources

number of years when sentencing a crime, regardless of 1. Prison Policy Initiative. https://www.prisonpolicy.org/reports/rates.html (Accessed October 3, 7 2017) the intricacies of that particular case. Such a law favors 2. Ibid. legislative imposition because judicial discretion cannot 3. Ibid. 4. Ibid. be acted upon. Originally introduced for drug offenses, it 5. Bureau of Justice Statistics. https://www.bjs.gov/index.cfm?ty=kfdetail&iid=493 (Accessed October 3, 2017) now extends to other crimes involving guns and pornogra- 6. United States Department of Justice. https://www.justice.gov/usam/criminal-resource-manu- phy. This led to longer sentences, regardless of a person’s al-1032-sentencing-enhancement-three-strikes-law (Accessed October 3,2017) 7. 21 USC §§ 841(a), 841(b)(1)(A); § 2D1 non-affiliation to organized crime, history of non-violence, 8. National Research Council. The Growth of Incarceration in the United States: Exploring Causes and Consequences. Washington, DC: The National Academies Press. 2014. https://doi. and status as a low-level offender. org/10.17226/18613. BU PRE-LAW REVIEW FALL 2017 9. Ibid. 16 Sex Offenders and the Right to Social Media By Yvette Pollack, COM ‘17 he Supreme Court cases, such as Morse v. Fredrick 551 pornography.13 The state may also point out that many felons U.S. 393 (2007), Schenck v. U.S., 244 U.S. 47 (1919), are stripped of some of their rights as American citizens. For and the Court Police Department of the City of Chicago instance, some states prohibit criminals from voting even though v. Mosley, 408 U.S. 92 (1972), demonstrate that the voting is necessary for speech and participating in a democ- First Amendment is not absolute. The latest Supreme racy.14 It is unsure how strong of a government interest this case Court case to challenge how freedom of speech can be limited has in the eyes of the Supreme Court Justices. Tis Packingham v. North Carolina, No. 15-1194 2007 U.S. (U.S. March 23, 2016). Twenty-one year old Lester Packingham was Packingham’s team has some advantages. As noted, the registered as a sex offender after he was arrested in 2002 for application of the law stretches far beyond sex offenders that raping a 13-year-old girl.1 According to North Carolina General have committed acts against minors. The fact that Packingham Statute (N.C.G.S.) §14 202.5, all registered sex offenders are pro- is barred from some major news sites may help persuade the hibited from using forms of social media in which he or she can justices that the law is unconstitutional although he can access have a public profile and the site is commonly used by minors.2 other news websites that may report the same stories. Some These websites include Facebook, Twitter, LinkedIn, Instagram, people may be concerned that the Supreme Court Justices may and The New York Times’ website.3 Packingham and other sex not fully understand the different forms of online communication. offenders cannot use these websites until they are removed from They, however, do have younger and possibly more technologi- the registry 30 years after enrollment or 10 years after registry cally knowledgeable law clerks to help them balance the argu- with a petition to the state that they have been productive mem- able necessity of using social media. The justices are aware that bers of society.4 Packingham ignored the law in 2010, posted on social media is becoming increasingly entangled with non-virtual Facebook that he was thankful for his traffic case’s dismissal, aspects of people’s everyday lives.15 Judges around the country and was arrested for violating this statute.5 The Supreme Court have also recognized the importance of internet access, which Justices will decide if this law has been narrowly tailored enough may also be in Packingham’s favor. For example, on March 21st, to consider the law constitutional. Packingham v. North Carolina 2017, New Jersey Supreme Court Justices ruled that a man who No. 15-1194 2007 U.S. (U.S. March 23, 2016) will clarify how the experienced a state-mandated internet blackout after sexually courts should evaluate future, online freedom of speech cases, molesting his young daughters must be able to access some and will ask if there is a constitutional right to popular social websites.16 They ruled that the internet has become a basic need media websites. in our day and age.17 The New Jersey justices also made an important distinction between the actions one takes at home and N.C.G.S. §14 202.5 has broad applications. The law applies to the actions one takes on the internet.18 These justices’ ruling may all sex offenders, including rapists, pimps, and people who have indicate the direction that the Supreme Court justices will take. committed incest (regardless of whether these actions involved minors).6 In the Packingham case, the lower courts decided to The courts seem to believe that a majority of important human use the O’Brien test, which is a test for symbolic speech that interaction is online now. Whether or not all of the websites are comes from U.S. v. O’Brien, 391 U.S. 367 (1968).7 In this case, an absolute necessity is debatable. For instance, instead of Mr. O’Brien burned his draft card in front of a Boston courthouse using the New York Times website, Packingham could go to a as a form of symbolic speech against the Vietnam War, and was local Starbucks or newsvendor to purchase the latest edition of convicted under a federal law that made destroying draft cards a the newspaper. The states may have trouble creating a perfectly crime.8 Although the court upheld that the law was not a freedom tailored law that will equally protect minors and allow sex offend- of speech violation, Justice Warren created a new test from this ers to fully participate in modern life. case that will find a regulation against a form of expression to be constitutional if the regulation is within the constitutional power of Sources the government, if it furthers an important or substantial gov- 1. Volokh, Eugene. “Supreme Court Agrees to Consider N.C. ban on sex Offenders’ Access to Most Prominent Social Networks.” The Washington Post. (October 18, 2016.) ernment interest, if that interest is unrelated to the suppression 2. Bhagwat, Ashutosh et al. Brief amici curaie of Profs. Ashtosh Bhagwat et al. (U.S.S.C. of speech, and if the restriction that it imposes on speech is no April 20, 2016). http://www.scotusblog.com/wp-content/uploads/2016/05/final.pdf 9 3. Id. greater than necessary to further that interest. The appellate 4. Volokh, Eugene. “Supreme Court Agrees to Consider N.C. ban on sex Offenders’ Access court of North Carolina thought that this law failed the O’Brien to Most Prominent Social Networks.” 10 5. Id. test. The Supreme Court of North Carolina disagreed on the 6. Id. 7. Carter T. Barton, Marc A. Franklin, Amy K. Sander, and Jay B. Wright. The First grounds that Packingham had ample alternatives to speak that Amendment and the Fourth Estate. Edited by Robert C. Clark, Daniel A. Farber, Samual 11 did not require the use of popular social media. Packingham is Issacharoff, Herma H. Kay, Saul Levmore, Thomas W. Merrill, Robert L. Rabin, Carol M. Rose, and Kathleen M. Sullivan. 11th ed. Foundation Press, 2012. legally able to use WRAL.com (a local news channel website) 8. Chicago-Keny College of Law at Illinois Tech. “United States v. O’Brien.” Oyez. https:// instead of the New York Times’ website, Glassdoor.com instead www.oyez.org/cases/1967/232 (accessed April 21, 2017) 9. Carter T. Barton, Marc A. Franklin, Amy K. Sander, and Jay B. Wright. The First of LinkedIn, Shutterfly instead of Instagram, and the Paula Deen Amendment and the Fourth Estate. network (a website that allows users to share recipes) rather than 10. Volokh, Eugene. “Supreme Court Agrees to Consider N.C. ban on sex Offenders’ 12 Access to Most Prominent Social Networks.” Facebook or Twitter. Whether these channels are sufficient 11. Bhagwat, Ashutosh et al. Brief amici curaie of Profs. Ashtosh Bhagwat et al. to guarantee enough expression and access to information in 12.Id. 13. Halliburton, Nicholas and Natalia San Juan. “Packingham v. North Carolina: First the marketplace of ideas will be up to the justices. The attorney Amendment Free Speech Freedom of Expression Felony Sex Offender.” Edited by Jessica representing the State of North Carolina argued that the state S. Kim. https://www.law.cornell.edu/supct/cert/15-1194 14. Holding, Reynolds. “Why Can’t Felons Vote?” Time Magazine website, 2006. http:// has a strong government interest in protecting minors online content.time.com/time/nation/article/0,8599,1553510,00.html 15. Halliburton, Nicholas and Natalia San Juan. “Packingham v. North Carolina: First from sex offenders who may prey on them. The state can draw Amendment Free Speech Freedom of Expression Felony Sex Offender.” upon cases such as New York v. Ferber, which used examples 16. Rizzo, Salvador. “Sex Offender Wrongly Banned from Internet, court rules.” NorthJersey.com, 2017. http://www.northjersey.com/story/news/new-jersey/2017/03/21/ of the long-term harm sexually abused children experienced in sex-offender-wrongly-banned-internet-court-rules/99473514/

order to establish that the first amendment does not protect child 17. Id. BU PRE-LAW REVIEW FALL 2017 18. Id. 17 Trump and the Fate of Deferred Action for Childhood Arrivals (DACA) By Nicole Ricker, CAS ‘19

n September 5, 2017, President Trump released have never known would be extremely unfair, as these indi- a statement announcing that the Deferred Action viduals are culturally American. In addition, Obama argues for Childhood Arrivals (DACA) program would not that the removal of these individuals would be harmful to be accepting further applications, devastating the American economy because “a young person here, many young undocumented immigrants.1 This who has grown up here and wants to contribute to this program was instituted by the Obama administration in June society, wants to maybe start a business that will create 2012 to benefit undocumented immigrants who arrived in the jobs for other folks who are looking for work.”12 Research O 2 United States as children under 16 years of age. DACA, how- does suggest that undocumented immigrants contribute ever, is not a direct path to US citizenship; the program simply significantly to the American economy, especially through prevents deportation for two years and allows the candidate to payroll taxes, which generate $15 billion per year for Social legally work or obtain education in the United States, provided Security.13 that they meet a list of specific criteria.3 Applicants must have been under the age of 31 when DACA was established, and In response to President Trump’s announcement, fifteen state must be contributing to the United States, either through attorneys general have filed lawsuits against him. They insist gaining education, being part of the workforce, or by serving in that the Trump administration’s decision to end DACA comes the armed forces.4 Furthermore, these individuals must have as a result of racial bias indicated in his previous negative continuously resided in the United States since their initial comments about illegal Mexican immigrants.14 In the mean- entry and must not pose a threat to either national security or time, the fate of DACA rests largely in the hands of Congress, public safety.5 which has the power to save or modify the existing program before it officially ends in March 2018.15 However, bipartisan Following a memorandum from the Department of cooperation on immigration policy has been extremely difficult Homeland Security, DACA is not accepting further appli- in the past, which led to the institution of DACA by executive cations, nor is the deferred status available for renewal order in the first place.16 after October 5, 2017.6 On the same day, President Trump released a statement supporting this decision; one of Trump’s main arguments for phasing-out DACA is that President Obama overstepped his bounds as an executive by “making an end-run around Congress and violating the core tenets that sustain our Republic.”7 Trump goes on to say that “legislation offering these same [immigration] benefits had been introduced in Congress on numerous Sources occasions and rejected each time,” making Obama’s 8 1. “Statement from President Donald J. Trump.” The White House. September 05, 2017. actions inappropriate. The Trump administration also Accessed October 01, 2017. https://www.whitehouse.gov/the-press-office/2017/09/05/ asserted that repealing DACA is a necessary component statement-president-donald-j-trump. 2. “Consideration of Deferred Action for Childhood Arrivals (DACA).” USCIS. Accessed October of immigration reform that will “restore fairness to our 01, 2017. https://www.uscis.gov/archive/consideration-deferred-action-childhood-arrivals-daca. 9 3. Ibid. immigration system and protect American workers.” These 4. Ibid. 5. Ibid. claims about threats to American workers do have some 6. “Memorandum on Rescission Of Deferred Action For Childhood Arrivals (DACA).” merit; labor economists agree that most of these negative Memorandum on Rescission Of DACA | Homeland Security. September 5, 2017. Accessed October 22, 2017. https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca. effects fall on less educated workers by lowering the wages 7. “Statement from President Donald J. Trump.” The White House. September 05, 2017. Accessed October 01, 2017. https://www.whitehouse.gov/the-press-office/2017/09/05/ of 25 million American adults without a high school diploma statement-president-donald-j-trump. “by anywhere between 0.4 to 7.4 percent.”10 8. Ibid. 9. “President Donald J. Trump Restores Responsibility and the Rule of Law to Immigration.” The White House. September 05, 2017. Accessed October 01, 2017. https://www.whitehouse.gov/ the-press-office/2017/09/05/president-donald-j-trump-restores-responsibility-and-rule-law. Defenders of the DACA program argue that deporting 10. Davidson, Adam. “Do Illegal Immigrants Actually Hurt the U.S. Economy?” The New York Times. February 16, 2013. Accessed October 22, 2017. http://www.nytimes.com/2013/02/17/ these young people would be extremely unfair for them, magazine/do-illegal-immigrants-actually-hurt-the-us-economy.html. as well as a loss for the country as a whole. President 11. “Remarks by the President on Immigration.” National Archives and Records Administration. June 15, 2012. Accessed October 22, 2017. https://obamawhitehouse.archives.gov/ Obama expressed these sentiments when DACA was orig- the-press-office/2012/06/15/remarks-president-immigration. 12. Ibid. inally established in 2012, saying that these people “are 13. Davidson, Adam. “Do Illegal Immigrants Actually Hurt the U.S. Economy?” The New York Americans in their heart, in their minds, in every single way Times. February 16, 2013. Accessed October 22, 2017. http://www.nytimes.com/2013/02/17/ magazine/do-illegal-immigrants-actually-hurt-the-us-economy.html. but one: on paper. They were brought to this country by 14. Gonzales, Richard. “States Sue To Block DACA Termination, Citing Trump’s ‘Racial Animus’.” NPR. September 07, 2017. Accessed October their parents…and often have no idea that they’re undocu- 01, 2017. http://www.npr.org/sections/thetwo-way/2017/09/07/549047054/ states-sue-to-block-daca-termination-citing-trumps-racial-animus. mented until they apply for a job or a driver’s license, or a 15. Ibid. 11 college scholarship.” In sum, Obama feels that deporting 16. “Remarks by the President on Immigration.” National Archives and Records Administration. June 15, 2012. Accessed October 22, 2017. https://obamawhitehouse.archives.gov/ these undocumented young people to a country that they the-press-office/2012/06/15/remarks-president-immigration. BU PRE-LAW REVIEW FALL 2017

18 CRISPR:By Chelsea Rollins, CAS ‘19Editing Revolutionized

ver the course of only a few years, a stagger- humans has turned into a reality. Along with a question of ing new discovery has swept across the sci- ethics, legal implications hinder the gene editing system entific community; research labs globally have from flourishing on a market-based level. For years, trans- ratified new technology that assists specific genic organisms have been patented for industrial use; like- wise, human gene sequences have also been patented for changes in the DNA of animals, plants, and 12 now humans. In comparison to prior approaches with mod- clinical use. The frequent patenting might in turn, spurn ifying DNA, this new procedure is not only simpler but rel- litigations, as there is already strain amongst biotechno- O 1 logical companies over patenting CRISPR/Cas9 for thera- atively cheap. Known as, “CRISPR” – short for “Clustered Regularly Interspaced Short Palindromic Repeats” – peutic use in humans. Customarily, gene therapy aims to named in reference to repeated DNA sequences found in improve the health of a patient, but there may come a time the genomes of bacteria and other microorganisms, this when the judicial system begins mandating genome editing procedure is set to transform the way we view modern for repeat offenders. Turning CRISPR into a corrective 2 behavioral resource may create unknown negative exter- diseases. Bacterial cells can often be overrun by infec- 13 tious viruses; however, with the new invention of CRISPR, nalities. The technique could also be used to enhance those genomes can now be replaced.3 The genome of performance or diminish addiction. Socially, issues could the virus includes genetic material that is fundamental for arise by genetically enhancing a population or individual the virus to continue replicating. By destroying the viral on an intellectual or physical level. It is judicious to think delicately about CRISPR/Cas9, as many more legalities genome, CRISPR’s resistant replacement protects bacte- 14 ria from ongoing and continued viral infections, somewhat regarding the issue will arise. like a virtual memory card.4 Even more advanced was the attainment scientists made in harnessing CRISPR in a As medicine enters a new age of molecular biology it will controlled lab setting, in order to apply desired changes be imperative to verify that a particular “guide RNA” is to particular organisms.5 Scientists now have the capa- intended for its target gene, so that the CRISPR system bilities to blueprint and synthesize short RNA molecules does not mistakenly latch on to normal genes, causing that match a specific DNA sequence. The so-called guide unwanted outcomes. It will also be important to find a way RNA paired with the sequencing is referred to as “Cas9.”6 to apply CRISPR therapies into the body without serious Cas9 will transport molecular data to the intended DNA, side-effects before it can become widely used in medicine, and once localized, the molecular machinery can eliminate which is hard to account for since often ramifications do the pinned gene or alter its sequencing.7 With the ability not surface until much later on. In 2015, British lawmak- to make precise changes in the genes of organisms as ers granted scientists the ability to create babies from the diverse as fruit flies, mice, plants, fungi, and even human DNA of three individuals, in order to preclude children cells, we now apply such ability to Shaw’s bought mush- from inheriting life threatening diseases. This decision made Britain the first country to allow genetically modified rooms. In fact, edited mushrooms that don’t brown have 15 already been approved in the United States for sale.8 With embryos to be transplanted into women. Although a lot early success in the lab, many are looking toward medical remains obscure and underexplored, there is no doubt that applications of CRISPR technology, after evidence has CRISPR has become a valuable apparatus in modern day proved CRISPR can be useful in correcting a mutant gene research. or even disease symptoms in living animals.9 In adult mice, researchers found that by substituting a mutated gene with its corrected sequence, they were able to remedy mutations that cause hemophilia and sickle cell anemia.10 In addition, CRISPR can be used in the realm of infectious Sources diseases, possibly providing a way to make more applied 1. Blakemore, Erin. “First Human Embryos ‘Edited’ in U.S.-Get the Facts.” National Geographic. August 02, 2017. Accessed September 24, 2017. antibiotics that explicitly target disease-causing bacterial 2. “Questions and Answers about CRISPR.” Broad Institute. August 21, 2017. Accessed October 02, 2017. strains, while simultaneously cultivating beneficial bacte- 3. Ibid 11 4. Ibid ria. The CRISPR technique could eventually be applied 5. Ibid to gene mutations associated with other diseases, such as 6. Pollack, Andrew. “A Powerful New Way to Edit DNA.” The New York Times. March 03, 2014. Accessed September 26, 2017. cystic fibrosis or HIV, by manipulating infected individual 7. Ibid 8. “Questions and Answers about CRISPR.” genomes. 9. “CRISPR Reverses Disease Symptoms in Living Animals for First Time.” GEN. March 31, 2014. Accessed September 26, 2017. 10. “’Any Idiot Can Do It.’ Genome Editor CRISPR Could Put Mutant Mice in Everyone’s Reach.” An argument in opposition to the revolutionary technology Science | AAAS. July 26, 2017. Accessed October 02, 2017. is that, if approved for market transaction, people may 11. Ibid 12. E, Rodriguez. “Ethical Issues in Genome Editing Using Crispr/Cas9 System.” OMICS abuse its services for cosmetic desires, and whether a International, OMICS International, 24 Mar. 2016 13. Cheng, Maria. “Britain Approves Controversial Gene-Editing Experiments.” AP News, market for gene editing is repugnant or not has already , 1 Feb. 2016 begun to be debated. Ethical concerns have been brought 14. Ibid

15. Ibid BU PRE-LAW REVIEW FALL 2017 to the forefront as the possibility of genome editing in 19 The Fate of Transgender Soldiers in the United States Military By Jeyleani M. Sanchez, CAS ‘20 ho should be allowed to serve in the United States that would wish to enlist. One of the biggest arguments against the military is a long contested question. The question directive is a claim it constitutes discrimination towards the trans- of who should serve in the United States military gender community in the United States. Those who have taken this has been asked and answered numerous times approach claim that the President is being prejudiced towards a in history: with African Americans, Women, Gays specific group within the United States military and the population and Lesbians and now with Transgender citizens. In recent history, in general. Within President Trump’s own party there are dissent- Wthe “Don’t Ask, Don’t Tell” is the most recent act to be repealed ing voices. Senator Orrin Hatch of Utah told USA Today, “I don’t so that more American citizens - in this case gays and Lesbians - think we should be discriminating against anyone. Transgender could enlist, but now the question is whether or not transgender people are people, and deserve the best we can do for them.”8 Americans should be allowed to serve in the United States Armed Another counter-argument for the directive is that it is against the Forces.1 One of President Trump’s focuses thus far in his presidency Equal Protection Act found in the 14th Amendment. It states that is the effectiveness and improvement of the United States Armed no state shall “deny to any person within its jurisdiction the equal Services and how to improve them and so the issue continues to be protection of the laws.”9 By denying transgender individuals military in the focus of the media. The method that he proposes to accom- service, the United States is infringing on their rights guaranteed as plish this is by banning transgender citizens from enlisting and with American citizens to serve. Title VII of the Civil Rights Act of 1964 this rose the questions of whether or not what President Trump is has been repeatedly brought up in transgender discrimination cases proposing is constitutional and what the long term ramifications because it protects individuals from “employment discrimination would be for transgender Americans. based on race, color, religion, sex and national origin.”10 With that in mind, opponents of President Trump’s directive have brought up On August 25, 2017 President Trump signed a Presidential that the military is a work place. The standards for the Army branch Memorandum called “Military Service by Transgender Individuals” of the military does not specify a gender or sexuality requirement, in extending the transgender soldier ban in the United States Military.2 fact the only requirement having to do with potential recruits bodies The ban on transgender soldiers had been lifted during the last and minds is that they must be in “good physical condition” and year of the Obama administration. However, there was a deadline “good moral standing”.11 of July 2017 to determine if transgender individuals who had never served could enter the military service. United States Defense Currently in the United States the rights for transgender individuals Secretary General Jim Mattis extended this deadline until January is subjective – the decisions on whether or not transgender individu- 2018. However with President Trump’s memorandum the time limits als are protected under certain acts is at the discretion of the states have shifted to a month more: that is the deadline that the Secretary and sometimes of the cities. However, if the President of the United of Defense and Secretary of Homeland Security have to “provide States is seen as discriminating against the transgender community a recommendation to the contrary that I [President Trump] find there could be a shift. There could be a rise in those that openly convincing” or provide a plan that outlines the steps to improve the discriminate against transgender individuals. With that it is difficult military while considering budgetary constraints.3 to know how far the ramifications for the transgender community will go. Ultimately, the directive has already been set in motion and According to President Trump and others who are in favor of the the outcome of it hinges on the ability or inability of the Secretaries memorandum the purpose of the extension of the deadline is to of Defense and Homeland Security to convince President Trump allocate more money towards the weapons, materials, and lethal- on their plan to improve the conditions of the United States armed ity of the military to increase the chances of a successful warfare services by February 21st, 2018. Otherwise, President Trump’s while also decreasing the “disruption of unit cohesion”.4 Article II directive will go into full effect on March 23rd, 2018. of the Constitution states that the President of the United States is given the position of the Commander in Chief of the United States Sources 5 military. In his memorandum, President Trump states that under 1. Altmire, Jason. “H.R.2965 - 111th Congress (2009-2010): Don’t Ask, Don’t Tell Repeal Article II he can direct the Secretary of Defense and Secretary of Act of 2010.” Congress.gov. December 22, 2010. Accessed September 28, 2017. https:// www.congress.gov/bill/111th-congress/house-bill/2965. Homeland Security to follow his directive of establishing a way to 2. “Statement by Secretary of Defense Jim Mattis on Military Service by Transgender improve the military while banning transgender individuals from join- Individuals” U.S. DEPARTMENT OF DEFENSE. August 29, 2017. Accessed September 28, 6 2017. https://www.defense.gov/News/News-Releases/News-Release-View/Article/1294351/ ing the army. The question at the moment is what will happen to the statement-by-secretary-of-defense-jim-mattis-on-military-service-by-transgender/. 3. “Presidential Memorandum for the Secretary of Defense and the Secretary transgender individuals who are already enlisted in the military and of Homeland Security.” The White House. August 25, 2017. Accessed who, under President Obama’s administration, openly expressed September 28, 2017. https://www.whitehouse.gov/the-press-office/2017/08/25/ presidential-memorandum-secretary-defense-and-secretary-homeland. that they were transgender. President Trump believes that by recon- 4. Ibid. sidering this question he will be rectifying problems that according 5. “The Constitution of the United States: A Transcription.” National Archives and Records Administration. Accessed September 28, 2017. https://www.archives.gov/founding-docs/ to him were sorely ignored during the Obama administrations. To constitution-transcript. make sure that at least some part of his directive would go through, 6. “Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security.” The White House. August 25, 2017. Accessed President Trump included Section 4 of the memorandum, stating September 28, 2017. https://www.whitehouse.gov/the-press-office/2017/08/25/ that, if one part of the directive were found to be invalid, the rest presidential-memorandum-secretary-defense-and-secretary-homeland. 7 7. Ibid. of the memorandum would not be affected. President Trump only 8. Estepa, Jessica. “Sen. Orrin Hatch: ‘Transgender people are people and deserve wrote in his memorandum that no new recruits could be transgen- the best we can do for them’.” USA Today. July 26, 2017. Accessed September 28, 2017. https://www.usatoday.com/story/news/politics/onpolitics/2017/07/26/ der. However, all those that are currently enlisted will no longer have sen-orrin-hatch-transgender-people-people-and-deserve-best-we-can-do-them/512333001/ their sex reassignments covered by the United States military. 9. “The Constitution: Amendments 11-27.” National Archives and Records Administration. Accessed September 28, 2017. https://www.archives.gov/founding-docs/amendments-11-27. 10. “Title VII of the Civil Rights Act of 1964.” Title VII of the Civil Rights Act of 1964. There are arguments made against President Trump’s ability to Accessed October 20, 2017. https://www.eeoc.gov/laws/statutes/titlevii.cfm.

BU PRE-LAW REVIEW FALL 2017 11. “Enlisting in the Army.” Goarmy.com. Accessed October 20, 2017. https://www.goarmy. make such a directive towards a portion of the military and those com/about/serving-in-the-army/types-of-soldiers/enlisted-soldier.html. 20 The Future of Dodd-Frank Wall Street Reform: Dismantling the Volcker Rule By Benjamin Smith he 2008 economic meltdown brought the global by the bill is worrisome. The Financial Times published financial system to the brink of collapse and is recently an article pointing out the fact that because Dodd- widely considered the worst economic crisis since Frank has increased compliance expenses, the largest the stock market crash of 1929. Ben Bernanke, banks have actually benefited.6 This is because their the former chairman of the Federal Reserve, smaller competitors have a harder time addressing the argued that it was the worst in history.1 As a result of an new costs. Tunprecedented mismanagement of risk by large interna- tional financial institutions, the Obama administration pro- Although there is no doubt that new regulations needed to posed and eventually passed the Dodd–Frank Wall Street be introduced after the 2008 financial crisis, the Volcker Reform and Consumer Protection Act. rule has not addressed the underlying causes of the crash. The main drivers of the downturn were not the proprietary Dodd-Frank introduced several new regulations to the trading activities of banks; they were the holding of toxic financial industry. The bill drastically increased capital asset-backed securities and wide spread predatory lending. requirements, which rectified one of the largest problems The Volcker rule has been a burden on financial markets with the pre-crisis banking system. Investment banks, such and the institutions trying to make them operate efficiently. as the now-defunct Lehman Brothers, were particularly Dodd-Frank should be re-examined and the Volcker rule plagued with capital inadequacies that led to their swift dismantled in order to ensure the health and prosperity of demise. Although these new standards arguably decrease the U.S. financial system. the amount of economic growth by cutting lending activi- ties and investments, many experts agree these measures were necessary after 2008.2

The most impactful aspect of the Dodd-Frank bill, as well as the most controversial one, is the Volcker rule. The Volcker rule prohibits banking firms from conducting proprietary trading. It also places strict limitations on relationship between banks and separate organizations that perform similar proprietary activities (e.g., hedge funds and private equity funds). Although the reasoning behind these changes was valid, many have criticized the impact of the Volcker rule on the financial system. The Brookings Institution found that the Volcker rule has possibly reduced “liquidity in financial markets”3 and leading financials firms such as JP Morgan have criticized it for being too broad.4 The Volcker rule is subject to dangerously vague interpre- tation. In fear of breaching the law, financial institutions that make markets by buying and selling securities have become cautious when holding inventory. Banks also use proprietary trading in order to hedge against the positions they take while making markets. This prevention of hedg- ing has decreased both the liquidity and efficiency of the financial markets.

Although proprietary-trading activities did contribute to the Sources

severity of the financial collapse, the possession of toxic 1. Egan, Matt. “2008 crisis Worse than the Great Depression?” CNNMoney.com. http://money. asset-backed securities was the driving force behind the cnn.com/2014/08/27/news/economy/ben-bernanke-great-depression/index.html (accessed October 22, 2017). downfall of most investment banks. 2. Cecchetti, Stephen. “What’s the impact of higher capital requirements?” WEO.org. https:// www.weforum.org/agenda/2014/12/whats-the-impact-of-higher-capital-requirements/ (accessed October 22, 2017). The former CEO of Wells Fargo, Richard Kovacevich, 3. Baily, Martin Neil. “The Impact of the Dodd-Frank Act on Financial Stability and Economic Growth” Presentation, University of Michigan Conference, October 24, 2014 https://www.brook- asserts that Dodd-Frank would not have prevented the ings.edu/wp-content/uploads/2016/06/Baily-Klein-PPTF-1.pdf. 4. McKenna, Francine. “Biggest banks prefer full Volcker Rule repeal, but a rewrite would do.” 2008 crisis and that most of the blame should be placed Marketwatch.com http://www.marketwatch.com/story/biggest-banks-prefer-full-volcker-rule-re- 5 peal-but-a-rewrite-would-do-2017-08-11 (accessed October 22, 2017). on government regulators in the first place. Whether or not 5. Menza, Justin. “Dodd-Frank Won’t Prevent Another Financial Crisis: Pros” CNBC.com https:// Dodd-Frank solves the underlying factors behind the 2008 www.cnbc.com/id/49003944 (accessed October 14, 2017). 6. “Drop the Volcker rule and keep what works” FT.com https://www.ft.com/content/72f3ba98- crash, the number of cumbersome regulations introduced eef1-11e6-930f-061b01e23655 (accessed October 22, 2017. BU PRE-LAW REVIEW FALL 2017

21 Copyright Law Controversy: The Transparency in Music Licensing and Ownership Act By Nastassia Velazquez n July 20th, 2017, Representative Jim Sensenbrenner about a small number of musical works. In addition, they explicitly (R) of Wisconsin introduced the Transparency in Music state that users cannot rely on the information provided to make Licensing and Ownership Act (TMLOA), legislation that decisions about music playback and performance. This lack of infor- would create an informational database of musical works mation harms businesses, broadcasters, and digital music services, 1 and sound recordings. If created, the entire database, but the TMLOA would fix the problem because the extensive copy- and the music within it, would be publicly available and free to use for right ownership and license information that it would provide would individuals who need to identify and compensate copyright owners 8 O 2 create a sustainable and equitable marketplace for music. for the public performance of their music. In the United States, business establishments often play music or host live performances of music for their customers. However, they have experienced However, not everyone supports the TMLOA. Andrew Flanagan of immense difficulty in their attempts to ensure legal playback and NPR Music views Sensenbrenner as lacking of knowledge about performance of this music. Likewise, the artists who hold licenses the problem he wants to solve with the TMLOA. Flanagan points for the played or performed music have also experienced diffi- out that Congress has attempted the creation of a similar database culty in their attempts to receive fair compensation. Due to these before, and it failed spectacularly because of incompatible interests difficulties, business owners frequently struggle to obtain the correct between artists and business and the massive costs that taxpayers legal permissions for the playback and performance of copyrighted would have to shoulder for its creation. Moreover, the TMLOA would music in their establishments. As a result, they become vulnerable place the responsibility of data collection on songwriters and music to lawsuits and increased license fees.3 publishers. If songwriters and music publishers do not register Sensenbrenner views the TMLOA as a step forward in the simplifi- their copyright ownership in the database, they lose immense legal 9 cation of the music license process for businesses and artists. With recourse when people use their music without permission. An the legislation, he hopes to help business owners identify copy- artist whose copyright ownership information is not present in the right holders more easily so they can ensure that their business’s database can only seek actual damages, not statutory damages, playback and performances of music comply with license and when they cite unfair use of their music. Actual damages are the payment requirements.4 In addition, several business associations actual cost to license a song in accordance with a PRO’s license have announced their support for the legislation. WineAmerica, the agreement, whereas statutory damages are court-set fees that can 10 national organization of American wineries, emphasizes that the total up to $150,000 per copyright infringement. simplification of the music license process is essential for the pros- perity of their business. Due to the lack of an informational database In order to qualify for statutory damages, artists would have to of musical works, small family-owned wineries find it difficult to understand which music licenses best fit their business’s needs. As register both their copyright ownership information and their rights a result, these wineries end up with no music at all, which hurts busi- holder information in the database. This requirement places a major ness. Thus, an informational database of musical works would make burden on independent artists, artists who don’t have sufficient it easier for wineries to play and host live performances of music resources, and artists who do not have the desire to undergo such a without legal trouble and thus grow their business.5 process. Indeed, Bill Rosenblatt believes they will not accept dimin- ished abilities to sue for statutory damages unless they receive a The Brewers Association have also announced their support for the benefit in return, a benefit that the TMLOA doesn’t provide.11 Future TMLOA. Many breweries would like to play music or host live music copyright legislation that involves both artists and businesses will performances in their brewpubs and taprooms. However, these need to balance the interests and desires of both parties in order to breweries do not know which copyright ownership information con- nects to which performing rights organization (PRO), which would ensure that neither one of them receives unfair treatment or insuffi- issue them licenses for fair music use. A PRO is an organization cient benefit. that acts as a legal mediator for copyright holders and other parties. Sources They provide functions such as collection of royalties from parties 1. Sensenbrenner, Jim. “Rep. Sensenbrenner Introduces the Transparency in Music who wish to play copyrighted music publicly. Oftentimes, multiple Licensing Ownership Act.” Jim Sensenbrenner - Representing Wisconsin’s 5th District. PROs manage the rights of a single copyright ownership, not a July 20, 2017. Accessed October 1, 2017. https://sensenbrenner.house.gov/2017/7/ reps-sensenbrenner-introduces-the-transparency-in-music-licensing-ownership-act. single PRO. Therefore, breweries often pay all PROs even if only a 2. Sensenbrenner, James F., Jr. “H.R.3350 - Transparency in Music Licensing and Ownership Act.” Congress.gov. July 20, 2017. Accessed October 1, 2017. https://www.congress.gov/ specific PRO manages the rights of the music in question, as it is bill/115th-congress/house-bill/3350. 6 difficult to identify which PRO manages which copyrighted music. 3. Sensenbrenner, Jim. “Rep. Sensenbrenner Introduces the Transparency in Music Licensing Ownership Act.” Jim Sensenbrenner - Representing Wisconsin’s 5th District. July 20, 2017. The TMLOA would make it easier for breweries to lower costs in Accessed October 1, 2017. 4. ibid. connection to the playback or hosted live performances of music 5. Good, Tara. “Transparency in Music Licensing and Ownership Act Introduced 7 in Congress.” WineAmerica - The National Association of American Wineries. July and thus grow their business. 20, 2017. Accessed October 1, 2017. http://wineamerica.org/music-licensing/ transparency-in-music-licensing-and-ownership-act-introduced-in-congress. 6. Schulenberg, Richard. Legal Aspects of the Music Industry - An Insider’s View of the Legal and WineAmerica and the Brewers Association both belong to the Practical Aspects of the Music Business. New York, NY: Watson-Guptill Publications, 1999. MIC Coalition, a group of associations whose members provide 7. Marisic, Katie. “Transparency in Music Licensing and What it Means for Breweries.” Brewers Association - For Small and Independent Craft Brewers. August 9, 2017. Accessed October 1, music in retail establishments, restaurants, bars, and more. They 2017. 8. “Transparency in Music Licensing and Ownership Act Promotes a Vibrant Music Licensing also provide music across the United States’ airwaves and on the Marketplace.” The MIC Coalition - Music. Innovation. Consumers. July 20, 2017. Accessed October 1, 2017. Internet. The MIC Coalition has announced its “enthusiastic support” 9. Flanagan, Andrew. “New Bill Calling For Transparency In Music Is Surprisingly Opaque.” for the TMLOA. They cite the lack of a comprehensive database NPR Music. August 1, 2017. Accessed October 1, 2017. http://www.npr.org/sections/ therecord/2017/08/01/540655528/new-bill-calling-for-transparency-in-music-is-surprisingly-opaque. of music copyright ownership and license, despite the explosive 10. Marisic, Katie. “Transparency in Music Licensing and What it Means for Breweries.” Brewers Association - For Small and Independent Craft Brewers. August 9, 2017. Accessed October 1, 2017. growth in access to online information, as a necessitation for the 11. Rosenblatt, Bill. “New Proposed Legislation Sets Up Showdown Over Online U.S. Music Rights Database.” Copyright and Technology - News and analysis of rights technologies and copyright law. BU PRE-LAW REVIEW FALL 2017 passage of the legislation. Although PROs maintain a small number of databases, these databases often contain incomplete information July 27, 2017. Accessed October 1, 2017. 22 Reparations for Victims of the War on Marijuana By Sofia Zocca, CAS ‘18 n May 4th 2016, the Oakland City Council voted to create program, contending it hinders more than it aids. Because marijuana the Dispensary Equity Permit Program.1 This decision, is still illegal at the federal level, traditional business funding resources, referred to as the Brooks Amendment, amended OMC like bank loans, are unavailable.17 Entrepreneurs need either inde- 5.80 to allow the issuance of medical cannabis dispen- pendent wealth or access to private investors, which many minorities sary permits.2 Oakland’s unprecedented Equity Permit lack.18 Additionally, people of color have historically been targeted Program is the first of its kind in the nation, particularly in its aim of by police, and therefore fear publicly identifying and registering with reparations for populations most heavily affected by the U.S. gov- the government as marijuana sellers, which results in lower minority O 3 19 ernment’s war on drugs. The inordinate targeting and punishing of Program participation. marijuana-related offenders began with the Marijuana Tax Act of 1937, which assigned extensive prison sentences for the use and sale Another barrier is the Program’s narrow requirements, which pre- of marijuana.4 This act disproportionately affected black and latinx vent some minority individuals from qualifying for an equity permit.20 populations. A 2013 national report by the American Civil Liberties Only a few police department beats are included, with many neigh- Union found that black Americans were nearly four times more likely borhoods that were hurt by the drug war excluded from the Brooks than white Americans to be arrested, despite equal marijuana use.5 Amendment.21 Additionally, the Program disadvantages minority California’s Proposition 215, known as the Compassionate Use Act of Oakland residents who have succeeded in moving out of eligible 1996, decriminalized marijuana for medical purposes.6 Oakland specif- neighborhoods.22 Oakland’s gentrification has priced out many minori- ically is unique in its historically cannabis-friendly identity.7 ties and other disadvantaged groups.23 Critics fear that the Program’s stringent rules restrict the economic movement of potential permit The Brooks Amendment states that fifty percent of dispensary permits holders, and will stifle the cannabis industry.24 Because the one-for- “shall be issued to an Oakland resident who meets the Program require- one structure of the Program prevents the city from issuing regular ments,” often referred to as an equity applicant.8 The Amendment permits without issuing an equal number of equity permits, if Oakland operates on a one-for-one basis: for each permit issued to a “regular” receives insufficient equity applicants, the entire system will shut applicant, one permit must also be issued to an equity applicant.9 down.25 Opponents fear that the Program requirements are harmful to Eligibility for an equity permit requires the applying business to have industry growth.26 They assert that the Program will exclude, instead at least one Oakland resident member who has either resided in one of incorporate, more people from the industry. of six of the Oakland Police Department Beats for at least two years, or has been previously incarcerated for a marijuana-related offense While most legislators and marijuana legalization supporters view the resulting from an Oakland conviction within the past ten years. This intent of the Equity Permit Program as just, critics note the Program’s member must maintain at least 50% ownership in the dispensary.10 limitations: its narrow focus serving only a fraction of those targeted by Councilmember Annie Campbell Washington added the provision that the war on marijuana. Stringent Program requirements make it difficult reserves equity permits for previously incarcerated individuals con- for target populations to apply or qualify for equity permits. However, victed for marijuana-related offenses.11 While drug felons are typically recognition of the Program as revolutionary is unanimous. Expanding barred from entering the legal cannabis trade after their release from the Program to other cities and to the state level would alleviate its prison, the Equity Permit Program makes medical marijuana dispensary privileging only a small portion of those harmed by the drug war, permits accessible to them as reparations for the war on marijuana.12 while legalization of marijuana at the federal level would reduce the The Program aims to reward neighborhoods and populations most state-federal legal tensions and eliminate some economic barriers to affected, and to “redress the racial injustices of the drug war.”13 local cannabis entrepreneurs.

Supporters of the Brooks Amendment commend its attempt to Sources 14 1 Lisa Fernandez, “Oakland First City to Offer ‘Equity Amendment’ For Medical Marijuana: benefit racial minorities and address drug war injustices. Because it Councilwoman,” NBC Bay Area, 2016. reserves permits for previously incarcerated individuals, the amend- 2 OMC 5.80 – Medical Cannabis Dispensary Permits. 3 David Downs, “Oakland Green Lights Drug War Reparations, Passes Marijuana Equity ment creates opportunities and provides economic compensation for Program,” East Bay Express, 2016. populations unfairly hurt by the legal, social, and economic ramifica- 4 Ibid. 5 The Marihuana Tax Act of 1937, Introduction by David Solomon, Schaffer Library of Drug tions of a criminal record, including diminished employment prospects. Policy. The Program also benefits the local economy, particularly through the 6 Report: The War on Marijuana in Black and White, ACLU, 2013. 7 Hayley Fox, “Can Oakland Help Solve the Weed Industry’s Diversity Problem?” Rolling provision that prioritizes Oakland residents. The residency require- Stone, 2017. ment potentially promotes relations between business owners and 8 Ibid. locals; builds trust among Oakland residents; and destigmatizes users. 9 Ibid. 10 Ibid. The Program offers opportunities to small business owners, counter- 11 Rachel Swan, “Oakland hopes to light the way for minority-owned pot businesses,” San ing the potential monopolization of the cannabis industry by multina- Francisco Chronicle, 2016. 12 David Downs, “Oakland Green Lights Drug War Reparations, Passes Marijuana Equity tional pharmaceutical corporations or agricultural conglomerates such Program,” East Bay Express, 2016. as Monsanto. 13 Rachel Swan, “Oakland hopes to light the way for minority-owned pot businesses,” San Francisco Chronicle, 2016. 14 David Downs, “Oakland Green Lights Drug War Reparations, Passes Marijuana Equity Laws often benefit wealthy white men, who are best positioned to cap- Program,” East Bay Express, 2016. 15 Hayley Fox, “Can Oakland Help Solve the Weed Industry’s Diversity Problem?” Rolling italize on legal cannabis, an industry that requires large financial sums Stone, 2017. for real estate and business startup costs.15 While the black and latinx 16 Erin Baldassari, “Oakland expands medical marijuana dispensaries, related businesses,” East Bay Times, 2016. populations face disproportionately high arrest rates for marijuana-re- 17 Rachel Swan, “Oakland hopes to light the way for minority-owned pot businesses,” San 16 lated offenses, cannabis industry leaders are predominantly white. Francisco Chronicle, 2016.18 Hayley Fox, “Can Oakland Help Solve the Weed Industry’s Diversity Problem?” Rolling Stone, 2017. Thus, many marijuana reform policies fail to achieve their intended 18 Ibid. purpose, keeping in power people who did not suffer from the war 19 Ibid. on drugs. The Equity Permit Program addresses these racial divides 20 Ibid. 21 David Downs, “Oakland Poised to Green Light Controversial New Pot Rules Tonight,” within the legal cannabis industry. East Bay Express, 2016. 22 Rachel Swan, “Oakland hopes to light the way for minority-owned pot businesses,” San Francisco Chronicle, 2016. Critics argue that the Brooks Amendment harms the groups it purports 23 Hayley Fox, “Can Oakland Help Solve the Weed Industry’s Diversity Problem?” Rolling to help. Supporters of progressive marijuana legislation, such as Stone, 2017. 24 Ibid. the Oakland Cannabis Regulatory Commission, Dark Heart Nursery, 25 Ibid. BU PRE-LAW REVIEW FALL 2017 and female minority entrepreneurial Supernova Women oppose the 26 Ibid. 23 About the Boston University Pre-Law Review

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