Notes

Separating Federal Immigration Enforcement from Community-Oriented Policing: How the COPS Grant Program Misses the Mark

(Source) Combating illegal immigration has become a cornerstone of the Trump administration’s agenda. President Trump has frequently touted the allegedly threatening impact of immigration on crime and the economy to justify ramping up federal immigration enforcement efforts. However, many jurisdictions have adopted an implicit policy of obstructing such efforts by refusing to disclose information on suspected undocumented or illegal immigrants. These “sanctuary cities” have been embroiled in numerous legal battles with the Trump administration. Cases involving the denial of federal grant funding to sanctuary cities have proven especially controversial and continue to play out today. The COPS Grant Program Created under the Violent Crime Control and Law Enforcement Act of 1994 (“the Act”) and under the supervision of the Department of Justice (DOJ), the Community Oriented Policing Services (COPS) Program aims to “advance community policing in all jurisdictions across the United States” by awarding grants to state, local, and tribal law enforcement agencies. Congress initially funded the program to hire more street-level law enforcement officers, also known as beat cops, during the Clinton administration. The COPS Program issues competitive grants, as opposed to formula grants, meaning that state, local, and tribal governments must apply for access to a limited pool [read more]

COVID-19 and the Criminal Justice System: How Prisons and Prisoners are Impacted

  (Source)   “The closest thing I can equate it with is…when you’re locked in a cell in a giant, old, deteriorating jailhouse, is the fear that there will be a fire and no one will come in and unlock your cell. What caught my attention about this virus is that it really feels like there’s a fire in this prison.” An inmate at Washington State describes the inevitability of COVID-19 and the powerlessness he feels at remaining incarcerated as the virus rapidly spreads. When prisoners routinely lack access to soap, and when hand sanitizer is considered contraband in prisons, it is easy to imagine the rapid proliferation of the infection. Lack of access to sanitation is only part of the conditions that make prisoners particularly vulnerable to COVID-19. Close quarters, frequently used communal spaces, and lack of adequate medical care are just a few other factors that make prisons and jails petri dishes for the spread of disease. Indeed, these factors have caused a huge spike in the number of COVID-19 cases over the past months. As the number of cases rise in the general United States population, the number of cases in prison skyrockets. Though New York City [read more]

Unauthorized Disclosure: Judicial Violation of Mental Health Privacy

(Source) Brandon Sharp managed a gas company in East Texas. Healthy, in his thirties, Sharp rarely saw a doctor. And yet he owed thousands of dollars in medical bills. Sharp was the target of medical identity theft, which victimizes tens of thousands of people each year. Thieves steal patient information, including names, Social Security numbers, addresses, and medical histories, and then submit fraudulent insurance claims for surgery and prescriptions. Victims, like Sharp, face more than inconvenience: sometimes police arrest them instead of the thief for insurance fraud, or their information is conflated with the thief’s, leading to misdiagnosis. Contrary to popular opinion, the most common mode of theft is not computer hacking or breaking and entering but unauthorized disclosure by providers. Section 33.13 of New York’s Mental Hygiene Law aims to prevent unauthorized disclosure. It prohibits providers from releasing patient information, specifically mental health records, absent an exception. A mental health record includes “all pertinent documents relating to the patient” about legal status, examination, care, and treatment. However, New York state courts routinely violate Section 33.13. Claimants often sue New York when a patient in a state hospital injures them. In these cases, New York courts have ordered hospitals to [read more]

“Smile! You’re on Camera” – The Implications of the Use of Facial Recognition Technology

(Source) What is the first thing that comes to mind when you hear the phrase ‘facial recognition technology’? Is it a TV show or movie scene where law enforcement is staring at computer monitors as faces in a database cycle through as a software program looks for a match to an image of a suspect, victim, or witness in the case? Many associate the phrase ‘facial recognition technology’ with the government and law enforcement; an association which is reinforced by the way in which numerous procedural TV shows (such as FBI, Hawaii Five-0, Blue Bloods, and Law and Order: SVU) display facial recognition in their episodes. For many Americans, those TV and movie scenes are their primary exposure to facial recognition, resulting in the stronger association of facial recognition as a law enforcement aid. While facial recognition technology (also known as facial recognition or FRT) is certainly a tool used by government and law enforcement officials, its uses and capabilities span far beyond what is depicted by the entertainment industry. The concept of facial recognition originally began in the 1960s with a semi-automated system, which required an administrator to select facial features on a photograph before the software calculated and [read more]

Is There a Way Out of the U.S. Military if You Morally Object to Your Job?

(Source)   On January 3, 2020, so many people visited the Selective Service webpage that it crashed. The crash came hours after the announcement that Quasem Soleimani was killed by a U.S. airstrike ordered by President Donald Trump. In light of threats of a World War III and fear of a looming draft, the hashtag #WorldWarIII was one of the top trends on Twitter that day. Operated under the United States government, the Selective Service System’s mission is “[t]o register men and maintain a system that, when authorized by the President and Congress, rapidly provides personnel in a fair and equitable manner while managing an alternative service program for conscientious objectors.” In January, the Selective Service webpage read in red, “THERE IS NO MILITARY DRAFT.” While the possibility of another world war frightens many U.S. citizens, beliefs about war prior to service are taken seriously in most instances. However, beliefs about war that are the result of military-linked experiences are more complex. Ignoring the possibility of a draft, which does not appear to be coming, what happens when an individual freely signs a contract with the military and then changes their mind, claiming to be a conscientious objector? Current military [read more]

Kids & Teens in Quarantine: Considerations for Navigating Co-Parenting During COVID-19

(Source) On April 9th, the ABA Center on Children and the Law, ABA Commission on Youth at Risk, and ABA Section of Civil Rights and Social Justice hosted a webinar regarding the COVID-19 pandemic’s impact on child welfare cases. The webinar primarily focused on the federal Children’s Bureau’s March 27th guidance on how family courts and family law practitioners should proceed during these uncertain times. Now, more than ever, courts and practitioners play an integral role in ensuring the safety and welfare of children in our country. The Children’s Bureau’s guidance was written in part in response to concerns regarding court closures, postponement of hearings, and complications regarding visitation. Across the country, and even in the Q&A sidebar of the webinar, parents have expressed concern that their co-parenting arrangements will be disregarded by ex-spouses amidst the stay-at-home orders coming down left and right. The isolation and social distancing that the COVID-19 pandemic requires may give parents a greater ability to damage the other parents’ parent-child relationship through explicit and implicit behavior, which may ultimately contribute to a child’s estrangement from both parents. Damaging behavior can include denigrating the other parent in front of the child, encouraging the child to take [read more]

The Doctrine of Equivalents: A Barrier to Cheaper Biologics?

(Source)   The benefit of biosimilar drugs is clear—biosimilars provide the U.S. market with drastic cost-saving alternatives, with estimates of a reduction in spending on biologic drugs from 2017 to 2026 of $54 billion dollars. Biologics are pharmaceutical drugs designed from or involving biological process/materials such as proteins, DNA, carbohydrates, and triglycerides. They include vaccines such as your common flu shot to drugs taken to boost a patient’s white blood cell count during chemotherapy. To illustrate the direct benefit, Neupogen, a popular biologic drug used to combat low white blood cell count in the blood, currently costs about $1,750 dollars at a CVS pharmacy for a supply lasting 83 days while Zarxio, the biosimilar copy of Neupogen, costs about $1,440 dollars at the same pharmacy for the same amount. But with the introduction of biosimilars to the U.S. market in 2015 with Neupogen, an emphasis has been placed on how the patent law doctrine of equivalents will play into patent infringement litigation. The doctrine of equivalents has the potential of hindering the benefits that biosimilars provide to the drug market and act as a barrier to entry for biosimilars. This piece will discuss the doctrine of equivalents itself, the difficulty with its application to biologics, and the problems associated [read more]

The High Seas of Television: How Should Streaming Television Be Regulated?

(Source) Last year more Americans subscribed to streaming services (69%) than traditional cable or satellite TV (65%). These internet-based television services, such as Netflix, Hulu, and Amazon Prime, are referred to as over the top (OTT) services. OTT services are film and TV content streamed over an internet connection, in contrast to traditional TV which is provided via a cable or satellite connection. Streaming services are an increasingly large part of Americans’ lives. 43% of consumers subscribe to both traditional pay-TV and at least one video streaming service. Younger consumers are especially drawn to OTT providers with 88% of those aged 22 to 35 subscribing to streaming services while just 51% subscribe to traditional broadcast TV. This increasing proliferation of streaming television is having a wide-ranging impact. It is significant to content producers, consumers, and even the financial industry.  It also brings about many regulatory questions. One of the biggest questions is whether or not to define OTT services as multichannel video programming distributors (MVPDs). MVPDs are essentially TV providers who provide multiple channels, such as your classic cable or satellite provider. Some people in the industry have begun referring to OTT providers that provide consumers with not just standard [read more]

A “Growing” Industry?: Banking Regulation’s Impact on the Legal Cannabis Industry’s Growth

(Source) With the increase in the number of states legalizing cannabis for recreational or medical purposes, issues come to light surrounding the implications of the relationship between the legal cannabis industry and banks. Due to marijuana’s current illegal status under federal law, the legal cannabis industry suffers in several ways from its lack of banking access. As of 2019, in the United States, marijuana is legal in 33 states and Washington, D.C., for medical use, but only twelve of those jurisdictions allow both medicinal use and recreational use of marijuana. While most states have legalized marijuana in some form, under 21 U.S.C. 812(b)(1), marijuana is a substance with a high potential for abuse, has no currently accepted use for medical treatment, and a lack of accepted safety under medical supervision (Schedule I substance), and remains illegal under federal law. Marijuana’s current legality status under federal law makes banks very reluctant to work with the cannabis industry. If banks provide services to the cannabis industry, those banks risk criminal prosecution for not only money laundering, but also aiding and abetting in a federal crime. If desired, banks could file a suspicious activity report for every transaction dealt with by the cannabis [read more]

Facial Recognition Software, Race, Gender Bias, and Policing

(Source)   Facial Recognition Technology (FRT) identifies a person’s face by navigating through computer programs that access thousands of cameras worldwide to identify a suspect, criminal or fugitive. FRT could even accurately identify a person’s from a blurry captured image or instantaneously identify the subject among a crowd. This is the fantasy portrayed in Hollywood movies. In reality, facial recognition software is inaccurate, bias, and under-regulated. FRT creates a facial template of a person’s facial image and compares the template to millions of photographs stored in databases—driver’s license, mugshots, government records, or social media accounts. While this technology aims to accelerate law enforcement investigative work and more accurately identify crime suspects, it has been criticized for its bias against African-American Women.  The arm of the United States government responsible for establishing standards for technology—National Institute For Standards and Technology (NIST)—conducted a test in July of 2019 that showed FRT’s bias against African-American women. NIST tested Idemia’s algorithms—an Australian company that provides facial recognition software to police in United States—for accuracy. The software mismatched white women’s faces once in 10,000, but it mismatched black women’s faces once in 1000 instances. This disparity is a result of the failure of current facial [read more]