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U.S. Appeals Court Rules Against Former Bolivian President and Defense Minister Over 2003 Massacre

via HRP Blog

 

August 3, 2020, Miami – Today, the U.S. Court of Appeals for the Eleventh Circuit vacated a trial court judgment that had been entered in favor of Bolivia’s former president, Gonzalo Sánchez de Lozada, and former defense minister, José Carlos Sánchez Berzaín, for the massacre of unarmed Indigenous people in 2003. A jury found the former officials liable under the Torture Victims Protection Act (TVPA) and awarded plaintiffs $10 million in damages in April 2018, after a month-long trial that included six days of deliberations. The trial marked the first time in U.S. history that a former head of state sat before his accusers in a U.S. human rights trial. In an unusual move, a month later the trial court set aside the jury verdict and entered its own judgment holding the defendants not liable based on insufficient evidence. In November 2019, two of the plaintiffs, whose young daughter had been killed by soldiers in the massacre, traveled to Miami to have their appeal heard. Today, the Court of Appeals vacated the district court’s judgment and remanded the case to the district court for further proceedings. In addition, the Court of Appeals held that plaintiffs were entitled to a new trial on related wrongful-death claims because the district court had abused its discretion in admitting certain evidence that was favorable to the defendants.

“This is such wonderful news,” said Sonia Espejo, whose husband Lucio was killed in the 2003 Massacre. “We have fought for so long. We will continue fighting, but for today, I feel happy. I feel calm.”

The appellate court held that plaintiffs provided sufficient evidence that “soldiers deliberately fired deadly shots with measured awareness that they would mortally wound civilians who posed no risk of danger. None of the decedents were armed, nor was there evidence that they posed a threat to the soldiers. Many were shot while they were inside a home or in a building. Others were shot while they were hiding or fleeing.”

The appellate court vacated the lower court’s judgment and remanded the case to the district court to (i) decide whether the jury verdict should be reinstated under the proper standard, and (ii) hold a new trial on plaintiffs’ related wrongful death claims.

In September and October 2003, acting under the authority of Sánchez de Lozada and Sánchez Berzaín, the Bolivian military killed 58 of its own citizens and injured more than 400, almost all of them from indigenous communities, during a period of civil unrest known as the “Gas War.” Among those killed were an eight-year-old girl, a pregnant woman (whose fetus also died), and elderly people. After the massacre, Sánchez de Lozada and Sánchez Berzaín fled to the United States, where they have lived since. Former military commanders and government officials who acted under the authority of the two men were convicted in Bolivia in 2003 for their roles in the killings. Sánchez de Lozada and Sánchez Berzaín were indicted in the same case but could not be tried in absentia under Bolivian law.

“This is an important moment in the struggle for accountability, not just for the families, but for all of Bolivia,” said Thomas Becker of the International Human Rights Clinic at Harvard Law School. “Today is a victory for human rights.”

The case was brought by the family members of eight people killed during the massacre, among them Etelvina Ramos Mamani and Eloy Rojas Mamani, whose eight-year-old daughter Marlene was killed in front of her mother when a single shot was fired through the window; Teófilo Baltazar Cerro, whose pregnant wife Teodosia was killed after a bullet was fired through the wall of a house; Felicidad Rosa Huanca Quispe, whose 69-year-old father Raul was shot and killed along a roadside; and Gonzalo Mamani Aguilar, whose father Arturo was shot and killed while tending his crops.

“We are elated that the families who lost loved ones in the 2003 massacres have won this important victory,” said Beth Stephens, a cooperating attorney with the Center for Constitutional Rights.

At the three-week trial, a former soldier in the Bolivian military testified that he was ordered to shoot at “anything that moves” in a civilian community. Another witnessed a military officer kill a soldier for refusing to follow orders to shoot at unarmed civilians. Witnesses also recounted that tanks rolled through the streets and soldiers shot for hours on end, including into homes and at fleeing, unarmed civilians. Despite all the testimony, in setting aside the jury’s verdict the trial judge concluded that there was insufficient evidence to hold the defendants liable for extrajudicial killings. The case, Mamani v. Sánchez de Lozada and Sánchez Berzaín, was filed in 2007 under the TVPA, which allows damages to be recovered in U.S. federal courts for extrajudicial killings. The case alleged that Sánchez de Lozada and Sánchez Berzaín planned and ordered the killings.

“Akin Gump’s pro bono practice has been honored to work with these Bolivian families for more than 13 years,” said Akin Gump Strauss Hauer & Feld LLP Pro Bono Partner Steven Schulman. “We are gratified that the Eleventh Circuit carefully reviewed the evidence we presented at trial and agreed that the District Court should not have displaced the jury’s verdict as it did.”

The family members are represented by a team of lawyers with the Center for Constitutional Rights, Harvard Law School’s International Human Rights Clinic, and the law firms of Akin Gump Strauss Hauer & Feld LLP, and Schonbrun, Seplow, Harris & Hoffman, LLP.

For more information, visit the Center for Constitutional Rights’ case page.

Contact:
Jen Nessel, Center for Constitutional Rights, (212) 614-6449, jnessel@ccrjustice.org
Dana Walters, International Human Rights Clinic at Harvard Law School, dwalters@law.harvard.edu

The International Human Rights Clinic at Harvard Law School works to protect the human rights of clients and communities around the world. Through supervised practice, students learn the responsibilities and skills of human rights lawyering. Learn more at http://hrp.law.harvard.edu/. Follow the Clinic on social media: Human Rights Program at Harvard Law School on Facebook, @HarvardLawHRP on Twitter, and humanrightsharvardlaw on Instagram.

The Center for Constitutional Rights works with communities under threat to fight for justice and liberation through litigation, advocacy, and strategic communications. Since 1966, the Center for Constitutional Rights has taken on oppressive systems of power, including structural racism, gender oppression, economic inequity, and governmental overreach. Learn more at ccrjustice.org. Follow the Center for Constitutional Rights on social media: Center for Constitutional Rights on Facebook, @theCCR on Twitter, and ccrjustice on Instagram.


Tribunal de Apelaciones de los Estados Unidos falla en contra del ex presidente de Bolivia y su ministro de Defensa por la masacre de 2003


3 de agosto de 2020, Miami – 
Hoy, la Corte de Apelaciones de EE.UU. por el Onceavo Circuito anuló la decisión que el tribunal de primera instancia emitió a favor del ex presidente de Bolivia, Gonzalo Sánchez de Lozada, y su ex ministro de Defensa, José Carlos Sánchez Berzaín, por la masacre de 2003 de personas indígenas que no portaban armas. En abril de 2018, un jurado halló responsables a los ex funcionarios en el marco del Estatuto de Protección de las Víctimas de Tortura (TVPA por sus siglas en inglés) y adjudicó $10 millones de dólares en daños, después de un juicio de un mes que incluyó seis días de deliberaciones del jurado. El juicio marcó la primera vez en la historia de los Estados Unidos que un ex jefe de estado se tuvo que presentar ante sus acusadores en un juicio de derechos humanos en los Estados Unidos. En una movida poco usual, un mes después de que el jurado dictara su veredicto, el tribunal de primera instancia dejó de lado el veredicto del jurado y emitió su propio fallo, librando a los demandados de responsabilidad por supuesta falta de pruebas. En noviembre de 2019, dos de los demandantes, cuya pequeña hija había sido asesinada por soldados en la masacre, viajaron a Miami para que se escuchara su apelación. Hoy, la Corte de Apelaciones anuló el fallo del tribunal de distrito y devolvió el caso al mismo tribunal de distrito para procedimientos adicionales. Además, el Tribunal de Apelaciones sostuvo que los demandantes tenían derecho a un nuevo juicio con relación a los alegatos de homicidio culposo porque el tribunal de distrito había abusado de su discreción al admitir cierta evidencia que le era favorable a los demandados .

“Esta es una noticia maravillosa”, dijo Sonia Espejo, cuyo esposo Lucio fue asesinado en la masacre de 2003 . “Hemos luchado por tanto tiempo. Seguiremos luchando, pero por hoy, me siento feliz. Me siento tranquila.”

La corte de apelaciones sostuvo que los demandantes proporcionaron evidencia suficiente de que “los soldados dispararon deliberadamente disparos mortales con una conciencia meditada de que herirían mortalmente a civiles que no presentaban ningún riesgo de peligro. Ninguno de los fallecidos estaba armado, ni había evidencia de que representaran una amenaza para los soldados. Muchos recibieron disparos mientras estaban dentro de una casa o en un edificio. Otros recibieron disparos fueron mientras se escondían o huían”.

La corte de apelaciones anuló el fallo del tribunal de primera instancia (el tribunal de distrito) y le devolvió el caso para que (i) decida si el veredicto del jurado debe ser reintegrado bajo la norma correcta, y (ii) celebre un nuevo juicio con relación a los reclamos de homicidio culposo de los demandantes.

En septiembre y octubre de 2003, bajo la autoridad de Sánchez de Lozada y Sánchez Berzaín , los militares bolivianos mataron a 58 de sus propios ciudadanos e hirieron a más de 400, casi todos ellos de comunidades indígenas, durante un período de disturbios civiles conocido como la “Guerra del Gas”. Entre los muertos está una niña de ocho años, una mujer embarazada (cuyo hijo en gestación también murió), y personas de la tercera edad. Después de la masacre, Sánchez de Lozada y Sánchez Berzaín huyeron a los Estados Unidos, donde han vivido desde entonces. Los ex comandantes militares y funcionarios del gobierno que actuaron bajo la autoridad de estos dos hombres fueron condenados en Bolivia en 2003 por sus papeles en la masacre. Sánchez de Lozada y Sánchez Berzaín fueron acusados en el mismo caso pero no pudieron ser juzgados, pues no son posibles los juicios en ausenciabajo la ley boliviana.

“Este es un momento importante en la lucha por la rendición de cuentas, no solo para las familias, sino para toda Bolivia”, dijo Thomas Becker, de la Clínica Internacional de Derechos Humanos de la Facultad de Derecho de Harvard . “Hoy es una victoria para los derechos humanos”.

El caso fue presentado por los familaires de ocho personas asesinadas durante la masacre, entre ellos Etelvina Ramos Mamani y Eloy Rojas Mamani, cuya hija Marlene, de ocho años, fue asesinada frente a su madre cuando recibió un disparo a través de su ventana; Teófilo Baltazar Cerro, cuya esposa embarazada, Teodosia, fue asesinada después de que recibiera un balazo que atravesó la pared de una casa; Felicidad Rosa Huanca Quispe, cuyo padre Raúl, de 69 años, fue asesinado a tiros junto a una carretera; y Gonzalo Mamani Aguilar, cuyo padre Arturo fue asesinado a tiros mientras cuidaba sus cultivos.

“Estamos muy felices de que las familias que perdieron a sus seres queridos en las masacres de 2003 hayan obtenido esta importante victoria”, dijo Beth Stephens, una abogada cooperante del Centro de Derechos Constitucionales .

En el juicio de tres semanas, un ex soldado del ejército boliviano testificó que se le ordenó disparar a “cualquier cosa que se mueva” en una comunidad civil. Otro vio a un oficial militar matar a un soldado porque éste se negó a seguir las órdenes de disparar contra civiles desarmados. Los testigos también relataron que hubieron tanques que pasaban por las calles y que los soldados dispararon durante horas, incluso hacia hogares y a civiles que huían y que estaban desarmados. A pesar de todo el testimonio, al dejar de lado el veredicto del jurado, el juez de primera instancia concluyó que no había pruebas suficientes para responsabilizar a los acusados por ejecuciones extrajudiciales. El caso, Mamani v. Sánchez de Lozada y Sánchez Berzaín, fue presentado en 2007 bajo el TVPA, que permite que se obtenga compensación por daños por ejecuciones extrajudiciales en los tribunales federales de los Estados Unidos. El caso alegaba que Sánchez de Lozada y Sánchez Berzaín planearon y ordenaron los asesinatos.

“La práctica pro bono de Akin Gump ha tenido el honor de trabajar con estas familias bolivianas durante más de 13 años”, dijo Steven Schulman, socio de cuestiones pro bono de Akin Gump Strauss Hauer y Feld LLP. “Nos complace que el Onceavo Circuito haya revisado cuidadosamente la evidencia que presentamos en el juicio y haya estado de acuerdo con nosotros que el Tribunal de Distrito no debería haber desplazado el veredicto del jurado como lo hizo”.

Los familiares están representados por un equipo de abogados del Centro por los Derechos Constitucionales (Center for Constitutional Rights), la Clínica Internacional de Derechos Humanos de la Facultad de Derecho de Harvard y los bufetes de abogados de Akin Gump Strauss Hauer & Feld LLP, y Schonbrun, Seplow, Harris & Hoffman, LLP.

Para obtener más información, visite la página del caso del Centro de Derechos Constitucionales .

La Clínica Internacional de Derechos Humanos de la Facultad de Derecho de Harvard trabaja para proteger los derechos humanos de clientes y comunidades en todo el mundo. A través de la práctica supervisada, los estudiantes aprenden las responsabilidades e instrumentos de la defensa de derechos humanos. Obtenga más información aquí: http://hrp.law.harvard.edu/. Siga a la Clínica en las redes sociales: Programa de Derechos Humanos de la Facultad de Derecho de Harvard en Facebook, @HarvardLawHRP en Twitter y humanrightsharvardlaw en Instagram.

El Centro por los Derechos Constitucionales (Center for Constitutional Rights) trabaja con comunidades amenazadas para luchar por la justicia y la liberación a través de litigios, defensa y comunicaciones estratégicas. Desde 1966, el Centro por los Derechos Constitucionales ha se ha enfrentado a sistemas opresivos de poder, incluidos el racismo estructural, la opresión de género, la inequidad económica y la extralimitación gubernamental. Obtenga más información aquí: ccrjustice.org. Siga al Centro por los Derechos Constitucionales en las redes sociales: Centro de Derechos Constitucionales en Facebook, @theCCR en Twitter y ccrjustice en Instagram.

Research on trauma-sensitive schools offers timely insights

via Harvard Law Today

Small children with face mask back at school after covid-19 quarantine and lockdown, writing.

Small children with face mask back at school after covid-19 quarantine and lockdown, writing. Credit: iStock/Halfpoint

As the world confronts the collective and unprecedented trauma of a public health and economic crisis—exacerbated by systemic racial inequities—understanding the impact trauma has on the ability of children to learn is more important than ever. A new report suggests that schools that have adopted recommendations developed by the  Trauma and Learning Policy Initiative (TLPI)a nationally recognized collaboration between Harvard Law School and Massachusetts Advocates for Children (MAC)are uniquely positioned to understand and respond to the impact these crises, and the resulting trauma, are having on students, families, and educators.

A recently released report, “An Evaluation of the Trauma and Learning Policy Initiative’s Inquiry-Based Process: Year Three,”  published by BU Wheelock College of Education & Human Development, confirms the transformational benefits of a trauma-sensitive school culture as developed by TLPI and set forth in their landmark report, “Helping Traumatized Children Learn: Creating and Advocating for Trauma-Sensitive Schools” (HTCL). Since HTCL was first published in 2005, more than 95,000 copies have been distributed to schools and educators in Massachusetts and across the country. 

Over a three-year period, a team of researchers at Boston University studied several Massachusetts schools that have adopted an inquiry based process for creating trauma sensitive schools  The team evaluated the efficacy of an inquiry-based process and the sustainability of trauma-sensitive culture changes in the schools that used TLPI’s recommended approach. 

The researchers concluded: “Overall, this evaluation provides evidence for profound impacts that schools’ engagement with TLPI’s inquiry-based process, with the requisite level of commitment and focused effort, can have for leadership, staff, students, and families. Lasting changes reported by educators were multi-leveled, and included shifts in both thinking and practice. … This study suggests that, while this transformation may take time and effort to cultivate, the outcomes it generates may be more sustainable than other education reform approaches.”

Susan Cole, a lecturer of law at Harvard Law School and director of TLPI, stated, “Understanding trauma and engaging in a collaborative process of change that brings this understanding into everything we do creates a powerful pathway to helping all students learn both in school and remotely. It was a relief to watch trauma-sensitive schools jump into action as soon as the pandemic occurred. A deep understanding among all staff, combined with leadership and teamwork that prioritizes and values relationships, connection, belongingness, safety, family engagement, and student agency, can enable schools to adapt to any situation with positive results.”

HLS Clinical Professor Michael Gregory ’04, who co-teaches the Education Law Clinic at Harvard Law School with Cole, said: “The significant finding in this study—that an inquiry-based process of change guided by a set of compassionate and equitable values can help educators begin to transform their school cultures in a relatively short period—offers a paradigm change not only for schools but also for legal advocacy. These insights will help to fuel our teaching and our clinic students’ advocacy for years to come.”

The American Institutes for Research (AIR) earlier reported that the first two years of data provided evidence that an understanding of trauma-sensitivity in the context of a process of change can lead to shifts in practice that result in a range of positive outcomes for both students and staff members. Additionally, the AIR researchers found that these new ways of thinking and changes in practice can serve as a foundation for school-wide culture change that enables students and their educators to feel safe and supported to learn and be successful.

The Year Three evaluation provides an evidence base that educators’ deepening understanding of the impact of trauma on learning and participation in a collaborative, inquiry-based process will lead to shifts in thinking that recognize the foundational importance of a welcoming and inclusive learning environment for students’ academic success. Importantly, the evaluation found that school leadership and staff reported cultural and organizational shifts in their schools that clustered into four emergent themes:

• facilitating empowerment and collaboration

• integrating whole‐child approaches

• affirming cultural identity and promoting a sense of belonging

• re‐envisioning discipline toward relational accountability

“The work of building a safe and supportive, trauma-sensitive school community over the last five years has been critical during crises like these,” said a principal of an elementary school studied in the Year Three Report. “When we were initially faced with the pandemic and resulting school closures and shifts to online learning, every single staff member was called to action and immediately prioritized the safety and well-being of all students. They continue to amaze me as they prepare for the new school year this fall to ensure that we not only provide meaningful lessons to keep students engaged in learning, but strive to really connect with students to let them know we truly care about them and will continue to support them and their families in any way we can.”

House Select Committee on the Climate Crisis Report Includes Major Agriculture Policy and Food Waste Reduction Recommendations, Including Several Submitted by FLPC and FBLE

via CHLPI Blog

by Ali Schklair and MJ McDonald

Front cover of 'Solving the Climate Crisis' report

 

In June 2020, the House Select Committee on the Climate Crisis (Select Committee) released Solving the Climate Crisis, a comprehensive set of recommendations to confront climate change and resulting economic and racial inequities. Created in January 2019 by House Resolution 6, the bipartisan Select Committee spent 17 months interviewing scientists and stakeholders and gathering input through hearings and written comments. The Select Committee’s efforts ultimately culminated in hundreds of policy recommendations focused on 12 key pillars. As a member of the Farm Bill Law Enterprise (FBLE), Harvard Law School Food Law and Policy Clinic (FLPC) responded to a number of the Select Committee’s questions on ways to mitigate and adapt to climate change through two separate submissions: (1) on behalf of FBLE, FLPC submitted recommendations on agriculture policy and, (2) FLPC submitted recommendations on food loss and waste reduction policy. We are pleased to see that many of FBLE and FLPC’s recommendations were included in the Select Committee’s report. This post highlights where the Committee adopted recommendations in line with FLPC’s submissions and notes opportunities where the Select Committee could make its recommendations even more effective.

One of FBLE’s key recommendations was to move the United States agricultural system away from reliance on annual crops and toward a more sustainable perennial system. The SCCC report recognized the significant climate benefits agroforestry offers and recommends that Congress fund agroforestry research and establish a grant program (through existing conservation program funding) to support farmers transitioning to agroforestry.

FBLE also recommended that conservation compliance requirements be revised to include climate-friendly practices.  Set forth in the Conservation Title of the Farm Bill, conservation compliance requires producers to follow a conservation plan approved by the Natural Resources Conservation Service when planting crops on highly erodible land and prohibits producers from planting on wetlands. FBLE recommended that government funds only be awarded to producers who incorporate conservation and climate measures on their land, as opposed to producers who meet the minimum requirements for highly erodible lands and wetlands.  FBLE also noted that even if conservation compliance requirements remained unchanged, the U.S. Department of Agriculture (USDA) must increase enforcement of the requirement for them to be effective.

In line with FBLE’s submission, the Select Committee recommended that enforcement of the conservation compliance requirements be improved.  However, the Select Committee’s enforcement strategy focused mostly on administrative changes, rather than conservation compliance. To further promote conservation compliance, the Select Committee recommended that Congress increase funding to restore native grasses and wetlands and expand the sodsaver policy. Currently, this policy only applies to six states, so expansion would be beneficial.  Nevertheless, the change falls short of FBLE’s recommendation that subsidies be made conditional on enhanced conservation compliance.  Therefore, the Select Committee’s suggested changes may be too minor to achieve the Committee’s purported goals.

Crop insurance offers an additional opportunity to incentivize climate-friendly farming practices.  As FBLE suggested, the Select Committee recommended that the USDA provide more resources to the Whole Farm Revenue Protection Program, an insurance program that provides coverage for all of a farmer’s crops, thus eliminating the need to insure each crop individually. The Select Committee further suggested that Congress increase the USDA’s capacity to help farmers enroll in the program and offer higher incentives for incorporating crop diversification and climate conscious farming practices. Finally, the Select Committee included FBLE’s recommendation to offer discounts on crop insurance to farmers who use climate-friendly practices.

FBLE also made a number of recommendations regarding improvements to conservation programs to help achieve climate goals. FLPC is pleased to see that the Select Committee included many of FBLE’s Conservation Reserve Program (CRP) recommendations in its report, including expanding acreage protected under the CRP, increasing rental rates, lifting administrative barriers to CRP enrollment, extending CRP contract limits and allowing permanent easements. the Select Committee also addressed FBLE’s recommendations for improving the Environmental Quality Incentives Program (EQIP), and included the recommendation to make practices that promote carbon sequestration and reduce greenhouse gas emissions eligible for conservation incentive contracts. FLPC is disappointed, however, that the Select Committee did not take up FBLE’s recommendation to cut funding for Concentrated Animal Feeding Operations (CAFOs). Despite the environmental harm caused by methane gas emissions from these operations, the Select Committee did not address CAFOs in its report.

All of these suggested policy changes can greatly reduce agriculture’s impact on climate change. However, in order to sustain this progress, Congress must invest in future developments of our agricultural system.  FBLE recommended many ways Congress could contribute to ongoing research on climate-friendly farming practices.  The Select Committee included the recommendation to formally authorize regional USDA Climate Hubs, which will produce practical science-based research and provide general support to farmers engaged in climate-friendly farming.  Further, while not included in FBLE’s recommendations, FLPC agrees with the Select Committee’s recommendation that Congress should provide financial and technical support to beginning, young, and socially disadvantaged farmers working to adopt climate-smart practices.

In addition to the recommendations submitted as a member of FBLE, FLPC submitted its own recommendations on food loss and waste reduction policy opportunities. For years FLPC has supported local, state, and federal policies that divert excess food to people in need and prevent the economic and environmental impact of food waste. FLPC submitted several food loss and waste policy recommendations to the Select Committee and is excited the Committee demonstrated its commitment to reducing food waste and increasing food recovery in its final report. The Select Committee recommended that Congress support implementation and provide funding for the Winning on Reducing Food Waste initiative and provide financial resources to reduce food waste by 50 percent by 2030. The Committee also called for Congress to increase support and investments in food waste reduction initiatives in homes, schools, grocery stores, and restaurants, as well as on the farm, throughout the government, and in landfills. These recommendations align with FLPC’s submitted recommendations. Although the Select Committee’s recommendations are broad, they specifically suggest that funds and resources be provided for food waste reduction efforts.  FLPC’s submission detailed a number of specific ways that Congress support and invest in food waste reduction, should Congress decide to create targeted solutions in upcoming legislation.

For example, Congress could provide funding for a national food waste educational campaign or for comprehensive research and tracking on the amount of food lost or wasted at each stage of the supply chain.  Additionally, funding could be allocated to the USDA to study imperfect produce waste and potential solutions and to research and create grant programs for innovative technologies that limit food waste. To divert food waste from landfills, Congress could increase funding to support the construction of composting and anaerobic digestion facilities, provide research and development funding for food recycling technologies, and fully fund the Compost and Food Waste Reduction Pilot Projects grant that was included in the 2018 American Agricultural Act (2018 Farm Bill), while providing funding to states and localities that seek to implement organic waste bans. Congress has many opportunities to invest in food loss and waste reduction, thereby leading our nation in the fight against the global climate crisis.  We hope Congress will consider the many food waste reduction opportunities supported by FLPC and the Select Committee.

FLPC looks forward to seeing all of these recommendations incorporated into U.S. agricultural policy. One bill that already addresses many of these issues is the Agriculture Resilience Act (H.R. 5861). Introduced by Representative Chellie Pingree, the bill would increase funding and support for farmers committed to climate-friendly farming practices, such as land conservation and carbon sequestration. The bill would also encourage the use of digesters to convert methane emissions from livestock and food waste into renewable energy. To help reinforce SCCC’s recommendations, FLPC hopes that Congress considers passing the Agriculture Resilience Act to achieve a climate-friendly and resilient agricultural system.

Crimmigration Clinic files petition with the U.S. Supreme Court

via Crimmigration Blog

Today, the Crimmigration Clinic filed a petition for a writ of certiorari with the United States Supreme Court in a case that seeks to clarify the type of legal advice noncitizen-defendants must receive from their defense about the immigration consequences of a prospective guilty plea.  

The petition specifically asks the Court to review the case of Alfredo Juarez, a former lawful permanent resident who was wrongfully deported nearly eight years ago after pleading guilty to a Colorado misdemeanor drug possession charge. Mr. Juarez accepted the plea deal based on incorrect advice from his defense counsel, who failed to clearly explain that federal law would require his automatic deportation if he pleaded guiltyAfter entering his guilty plea, Mr. Juarez was deported to his country of nationality and away from his wife and two children.  

Shortly after he was deportedMr. Juarez filed a motion asking the court to allow him to withdraw the guilty plea because he had not been properly advised about its automatic immigration consequences. The motion was denied and Mr. Juarez appealed that decision through the Colorado court system up to the Colorado Supreme Court, which dismissed his appeal and determined that defense counsel need only caution that a guilty plea carries a risk of deportation—even when federal law clearly states that deportation is mandatory. 

The Crimmigration Clinic, which is part of the Harvard Immigration and Refugee Clinical Program at Harvard Law School, jumped in to represent Mr. Juarez in his request to have the U.S. Supreme Court review the Colorado Supreme Court’s decision. Ian Ramsey-North, a law student intern with the Crimmigration Clinic, who worked closely with the clinic’s director Phil Torrey on the petition, said “I firmly believe that defendants like Alfredo Juarez have a right to a higher standard of representation and I want to see a favorable outcome in this case so he can come home.”   

There is a significant conflict among both state high courts and federal circuit courts about the content of advice defense counsel must provide to noncitizen-defendants who are deciding whether to plead guilty to a criminal offense. A majority of courts throughout the country require counsel to provide unambiguous advice about the clear immigration consequences of a guilty pleaOther courts, however, simply require counsel to caution noncitizen-defendants that the guilty plea may carry a risk of deportation. This case provides the Supreme Court with an opportunity to resolve that conflict.  

According to Ramsey-North, “the petition will hopefully bolster the constitutional rights of noncitizendefendants throughout the country, and allow Mr. Juarez to be reunited with his family in Colorado. 

Summary executions and widespread repression under Bolivia’s interim government reports rights advocates from Harvard and University Network for Human Rights

via HRP Blog

Advocates call for a stop to state repression and violence, a turn to accountability, and a clear path to free and fair elections

Gregoria Siles mourns the death of her son Omar Calle hours after soldiers shot and killed him in Sacaba. Photo Credit: Thomas Becker 2019.

(Cambridge, MA, July 27, 2020) –­­– Four days after the Interim Bolivian Government suspended elections again, Harvard Law School’s (HLS) International Human Rights Clinic and the University Network for Human Rights (UNHR) released a report on the gross human rights abuses carried out under Bolivia’s interim President, Jeanine Áñez. The report documents one of the deadliest and most repressive periods in the past several decades in Bolivia as well as the growing fear of indigenous peoples and government critics that their lives and safety are in danger.

“We have identified very troubling patterns of human rights violations since the Interim Government took power. These abuses create a climate where the possibility of free and fair elections is seriously undermined,” said Thomas Becker, an international human rights attorney with UNHR and a 2018-2020 clinical instructor in HLS’s International Human Rights Clinic.

Áñez assumed power on November 12, 2019 with the mandate of calling new elections by January 2020. Under her administration, Bolivia has endured a surge of human rights violations. Shortly after Áñez took power, state forces carried out operations that killed at least 23 Bolivian civilians, all indigenous, and injured over 230. These casualties make November 2019 the second-deadliest month in terms of civilian deaths committed by state forces since Bolivia became a democracy nearly 40 years ago.

Since November, the interim government has continued to persecute people that it perceives to be outspoken opponents of the Áñez administration. The government has intimidated the press, shutting down critical news outlets and arresting “seditious” journalists. Áñez’s forces have arrested or detained hundreds of former politicians for vague crimes such as “sedition” and “terrorism.”

The HLS and UNHR report offers recommendations to the interim government to enforce its domestic and international obligations. First among these recommendations is that the interim government fulfill its commitment to hold free and fair presidential elections as quickly as possible.

“We are spiraling deeper into authoritarianism,” warned Felipa López Apaza, whose brother Juan was killed in Black November. “We need elections as soon as possible or they will keep coming after us.”

Media Contacts:

Thomas Becker: thomas@humanrightsnetwork.org 
Joshua Petersen: media@humanrightsnetwork.org
Dana Walters: dwalters@law.harvard.edu

Acknowledgments

This report was researched and written by Fabiola Alvelais, JD ’20, Laura Clark, JD ’20, Mohammed Elshafie, JD ’20, Rund Khayyat, JD ’21, Delany Sisiruca, JD ’21, Nicolas Walker, JD ’21, Julia Wenck, JD ’20, and Clinical Instructor Thomas Becker, JD ’09, of Harvard Law School’s International Human Rights Clinic; Camila Bustos, JD ’21, Hannah Carrese, JD ’22, Luke Connell, JD ’22, and Executive Director of the University Network for Human Rights and Sidley Austin–Robert D. McLean Visiting Professor of Law James Cavallaro of Yale Law School; and Gemma Canham, BA ’20, of Queen’s University Belfast. The report was translated by Belén García Martínez. The researchers wish to thank the many individuals who were willing to speak with us and share their stories to make this report possible.

OCP Welcomes New Clinicians

Vanessa O’Connor (left) and Lisa Dicker (right)

OCP is happy to welcome new clinicians Vanessa O’Connor and Lisa Dicker. Vanessa joined the Transactional Law Clinics as a clinical instructor while Harvard Negotiation & Mediation Clinical Programs welcomed Lisa as a clinical instructor.

Vanessa O’Connor

Before joining the Harvard faculty, Vanessa was an associate at Goodwin Procter LLP in the Real Estate Industries group where she represented real estate investment funds, developers and institutional investors in connection with real estate finance, joint venture formation acquisition and disposition transactions. Prior to that, Vanessa was an associate at Robins Kaplan LLP in the Business Litigation group.

Vanessa serves as a member of the Hanover, Massachusetts Board of Selectmen and as a co-Chair of the Boston Bar Association’s Real Estate Public Service Committee. She obtained her J.D. from Boston College Law School and her B.A. in Political Science from Tufts University.

Lisa Dicker

Prior to joining HNMCP, Lisa was Counsel at a global pro bono law firm where she advised on peace negotiations, conflict prevention, transitional justice, and post-conflict democratic transitions. Her portfolio included advising delegations to the Sudanese Peace Talks, the Sudanese Constitutional Declaration negotiations, the UN-led Intra-Syrian Peace Process, and the Astana Ceasefire Talks for Syria; counseling practitioners across the Middle East & North Africa on community-led transitional justice efforts; advising the Tanzanian government and civil society actors on efforts to counter violent extremism; and supporting localized peacebuilding efforts in Yemen.

Lisa has also been an Adjunct Professor in Bay Path University’s M.S. Leadership & Negotiation program, and has served on teaching teams for Harvard Law School’s Negotiation Workshop, Harvard University’s Program on Negotiation’s executive education courses, and independent programs.

She holds a J.D. from Harvard Law School and a B.A. from the University of Tennessee.

Right to farm: Indiana families ask U.S. Supreme Court to weigh in on case over factory farm

via IndyStar
by Sarah Bowman

This livestock operation is west and slightly south of Richard Himsel’s property, on Country Road 425 West in Hendricks County. Himself lives on the farm his family has owned near Danville since 1940. Himsel has filed a lawsuit challenging the constitutionality of Indiana’s Right to Farm laws. Doug McSchooler/For The Star

A local environmental group believes that Indiana’s Right to Farm Act violates the federal constitution, and they are asking the U.S. Supreme Court to weigh in.

The Hoosier Environmental Council has teamed up with a Harvard Law School Clinic and together they filed a petition with the nation’s highest court on July 17 asking it to review the case. This petition comes nearly 5 years after this case first began in an Indiana trial court, and roughly 7 years after an 8,000-hog factory farm moved in next to two Hendricks County couples and allegedly began causing harm.

The issue at hand: Whether Indiana’s Right to Farm statute provides complete immunity for nuisance and trespass liability to factory farms, and in doing so, violates the Takings Clause of the Constitution. That clause says that private property shall not be taken for public use without just compensation.

“What we have here is a law that doesn’t make sense; it’s crazy,” said Kim Ferraro, senior staff attorney for HEC and the plaintiff’s counsel. “I maintain a very strong belief that the law and facts are on our side and our clients’ side, and that the lower courts got it wrong.”

The counsel for the defendants, the owners and operators of the concentrated animal feeding operation or CAFO, said they are still reviewing the petition and evaluating their options.

“The Plaintiffs’ needless filing of the petition places an undue burden on our judicial system and the Defendants,” said Chris Braun of Indianapolis-firm Plews Shadley Racher & Braun.

“Despite fully complying with the law in properly operating the farm facility, and winning on all counts in three different Indiana courts,” he added, “the Defendants find themselves being forced to continue spending considerable time and expense defending themselves against the Plaintiffs’ unsupported claims.”

Born there, retired there

Richard Himsel, 79, was born and raised in the Danville house where he now lives with his wife, Janet. All growing up, his house was surrounded by crop land and the occasional traditional livestock farm.

It’s the same house in which they began and planned to live out their retirement.

But in 2013, two barns housing thousands of hogs began operating just about a quarter mile from the edge of his property and his home. And underneath them are the large tanks that hold thousands of gallons of waste the animals produce.

The odors that waft from the barns often make being at the house unbearable, according to Richard Himsel. The emissions sting his eyes and throat. His wife regularly doesn’t stay at the house, he said, based on her doctor’s recommendation. His children and grandchildren don’t like to visit the house.

Richard Himsel lives on the farm his family has owned in Danville, Ind., Since 1940. Himsel has filed a lawsuit challenging the constitutionality of Indiana’s Right to Farm laws. He says the presence of an industrial-sized hog farm adjacent to his property has diminished the quality of his life. Due to the odor, his wife no longer lives on the property. Doug MsSchooler / For The Star

But he couldn’t sell his house even if he wanted, Himsel said. An appraisal found that the property value of his home has dropped by nearly 60%. No one wants to move next to a factory farm, he said.

The Lannons are facing similar issues. Robert and Susan Lannon bought their land, just a quarter mile from the Himsels and half mile from the hog concentrated animal feeding operation, or CAFO, in 1971 and similarly planned to retire there. Their property value has dropped by nearly 50%, according to the appraisal.

Together the Himsels and Lannons filed a lawsuit in 2015 against the CAFO farmers. The defendants include Samual, Cory and Clinton Himsel — Richard’s cousin and two nephews — their company 4/9 Livestock, LLC, and Co-Alliance, a large agriculture supply company.

That first lawsuit alleged that the CAFO diminished their quality of life and reduced their property values. In other words, it constitutes a nuisance and a trespass, Ferraro claims. But the law has left them no remedy or recourse, she added.

No remedy or recourse

Right-to-farm laws started to grow in prominence around the nation in the 1970s and 1980s, and Indiana’s was enacted in 1981. These laws were enacted as a way to protect existing farmers from urban sprawl as city-dwellers moved to the countryside unprepared for the smells of agriculture. Such newcomers could not sue for nuisance as they moved to or “came to the nuisance,” said Andy Stawasz, a Harvard Law student who worked on the petition to the Supreme Court.

That protection disappeared, however, if there was a significant change on the farm — such as to its size, the hours of operation, technology used, etc. In those situations, a neighbor could file a nuisance claim.

Richard Himsel’s view of the neighboring hog operation can be seen from the second floor of his home, over the top of the crop of corn. Himsel, 74, has lived on or near the farm his family has had since 1940 in Danville, Ind. Himself has filed a lawsuit challenging the constitutionality of Indiana’s Right to Farm laws. He says the presence of the industrialized hog farm adjacent to his property, 1,600 yards from his home, has diminished the quality of his life. Due to the odor, his wife no longer lives on the property. Doug McSchooler / For The Star

Right to farm: Indiana families ask U.S. Supreme Court to weigh in on case over factory farm

Sarah Bowman

Indianapolis Star

A local environmental group believes that Indiana’s Right to Farm Act violates the federal constitution, and they are asking the U.S. Supreme Court to weigh in.

The Hoosier Environmental Council has teamed up with a Harvard Law School Clinic and together they filed a petition with the nation’s highest court on July 17 asking it to review the case. This petition comes nearly 5 years after this case first began in an Indiana trial court, and roughly 7 years after an 8,000-hog factory farm moved in next to two Hendricks County couples and allegedly began causing harm.

The issue at hand: Whether Indiana’s Right to Farm statute provides complete immunity for nuisance and trespass liability to factory farms, and in doing so, violates the Takings Clause of the Constitution. That clause says that private property shall not be taken for public use without just compensation.

“What we have here is a law that doesn’t make sense; it’s crazy,” said Kim Ferraro, senior staff attorney for HEC and the plaintiff’s counsel. “I maintain a very strong belief that the law and facts are on our side and our clients’ side, and that the lower courts got it wrong.”

This livestock operation is west and slightly south of Richard Himsel's property, on County Road 425 West in Hendricks County. Himsel lives on the farm his family has owned near Danville since 1940. Himsel has filed a lawsuit challenging the constitutionality of Indiana's Right to Farm laws.

The counsel for the defendants, the owners and operators of the concentrated animal feeding operation or CAFO, said they are still reviewing the petition and evaluating their options.

“The Plaintiffs’ needless filing of the petition places an undue burden on our judicial system and the Defendants,” said Chris Braun of Indianapolis-firm Plews Shadley Racher & Braun.

“Despite fully complying with the law in properly operating the farm facility, and winning on all counts in three different Indiana courts,” he added, “the Defendants find themselves being forced to continue spending considerable time and expense defending themselves against the Plaintiffs’ unsupported claims.”

Born there, retired there

Richard Himsel, 79, was born and raised in the Danville house where he now lives with his wife, Janet. All growing up, his house was surrounded by crop land and the occasional traditional livestock farm.

It’s the same house in which they began and planned to live out their retirement.

But in 2013, two barns housing thousands of hogs began operating just about a quarter mile from the edge of his property and his home. And underneath them are the large tanks that hold thousands of gallons of waste the animals produce.

The odors that waft from the barns often make being at the house unbearable, according to Richard Himsel. The emissions sting his eyes and throat. His wife regularly doesn’t stay at the house, he said, based on her doctor’s recommendation. His children and grandchildren don’t like to visit the house.

Richard Himsel lives on the farm his family has owned in Danville, Ind., since 1940. Himsel has filed a lawsuit challenging the constitutionality of Indiana's Right to Farm laws. He says the presence of an industrial-sized hog farm adjacent to his property has diminished the quality of his life. Due to the odor, his wife no longer lives on the property.

But he couldn’t sell his house even if he wanted, Himsel said. An appraisal found that the property value of his home has dropped by nearly 60%. No one wants to move next to a factory farm, he said.

The Lannons are facing similar issues. Robert and Susan Lannon bought their land, just a quarter mile from the Himsels and half mile from the hog concentrated animal feeding operation, or CAFO, in 1971 and similarly planned to retire there. Their property value has dropped by nearly 50%, according to the appraisal.

Together the Himsels and Lannons filed a lawsuit in 2015 against the CAFO farmers. The defendants include Samual, Cory and Clinton Himsel — Richard’s cousin and two nephews — their company 4/9 Livestock, LLC, and Co-Alliance, a large agriculture supply company.

That first lawsuit alleged that the CAFO diminished their quality of life and reduced their property values. In other words, it constitutes a nuisance and a trespass, Ferraro claims. But the law has left them no remedy or recourse, she added.

No remedy or recourse

Right-to-farm laws started to grow in prominence around the nation in the 1970s and 1980s, and Indiana’s was enacted in 1981. These laws were enacted as a way to protect existing farmers from urban sprawl as city-dwellers moved to the countryside unprepared for the smells of agriculture. Such newcomers could not sue for nuisance as they moved to or “came to the nuisance,” said Andy Stawasz, a Harvard Law student who worked on the petition to the Supreme Court.

That protection disappeared, however, if there was a significant change on the farm — such as to its size, the hours of operation, technology used, etc. In those situations, a neighbor could file a nuisance claim.

Richard Himsel's view of the neighboring hog operation can been seen from the second floor of his home, over the top of the crop of corn. Himsel, 74, has lived on or near the farm his family has had since 1940 in Danville, Ind. Himsel has filed a lawsuit challenging the constitutionality of Indiana's Right to Farm laws. He says the presence of the industrial-sized hog farm adjacent to his property, 1,600 yards from his home, has diminished the quality of his life. Due to the odor, his wife no longer lives on the property.

But in 2005, Indiana’s statute was amended to eliminate those remedies, according to the petition. As a result of the amendment, a “significant change” no longer includes the conversion of one type of agricultural operation to another, use of a new technology or a change in the farm’s size.

“In other words, no matter how large, damaging, or odious the transformed operation may be, injured landowners who were there first no longer have any nuisance remedy,” the petition reads.

Prior to starting the CAFO, the land did undergo a change: In 2013 it was rezoned from “agriculture residential” to ”agriculture intense.” And prior to the 2005 amendment, Katherine Meyer feels confident that this change would have been grounds for nuisance claims under the law.

“It would have been cut and dry because they were there first and then the nuisance came in,” said Meyer, the executive director of Harvard’s Animal Law & Policy Clinic that worked on the petition with Ferraro. “Now they can’t sue for damages and they can’t get the value out of their house. It just doesn’t seem fair, let alone the legal and constitutional issues.”

This case has moved its way through Indiana’s court system.

First, the trial court denied the defendant’s motion for summary judgment before suddenly reversing that opinion. The Indiana Court of Appeals then affirmed that the 2005 amendment bars all of the Himsel’s and Lannons’ claims because the switch from crops to a CAFO no longer constitutes a “significant change.”

In the Appeals Court’s decision, it acknowledged that “it is difficult to imagine what would constitute a significant change” and went on to say that the “coming to the nuisance doctrine, as applied by the [Right to Farm Act], now encompasses coming to the potential future nuisance.”

“Even articulating that is mind-boggling because how do you come to a future nuisance?” Meyer said. “Even the words don’t make sense. You can’t come to something that doesn’t exist yet.”

Ferraro then petitioned to have this case transferred to the Indiana Supreme Court. Following oral arguments, the court denied the transfer — the equivalent of accepting the case — in a split 3-2 decision. That allowed the Appeals Court opinion to stand.

Kim Ferraro, a senior attorney at the Hoosier Environmental Council, makes her case to the Indiana Supreme Court regarding Indiana’s Right to Farm Act, at the Indiana Statehouse, Thursday, Jan. 30, 2020. Some homeowners have alleged an 8,000-hog factory farm next to their property has diminished their quality of life, and are challenging Indiana’s Right to Farm laws, arguing that they unfairly protect large corporate-owned farms. Michelle Pemberton/IndyStar

“The Plaintiffs and their counsel refuse to accept the sound, well-reasoned decisions of an Indiana trial court, the Indiana Court of Appeals and the Indiana Supreme Court that have each considered and rejected the Plaintiffs’ unsupported claims,” Braun said to IndyStar.

But Ferraro took the state Supreme Court decision differently.

“The split decision told us we presented a meritorious case,” she said. “It didn’t signal to me that we got things wrong, signaled to me that there is a larger issue here.”

Role of the U.S. Supreme Court

Because the state Supreme Court did not grant transfer, that solidified the Appeals Court decision in how the law is to be interpreted. That no longer is up for debate, Ferraro said, as it was in the lower courts.

The question now, she said, is if the law — interpreted in the way that no longer allows for significant changes and removes any remedy for those changes — is a violation of the federal constitution.

Ferraro, her clients and the Harvard Clinic believe it is.

Any property owner has the right to reasonably use and enjoy one’s land, Stawasz said.

“The takings clause in the Federal Constitution says that if the government takes that away, it needs to pay you for that or it shouldn’t do that,” he said. “Seems in that sense a pretty clear violation of the Constitution not to compensate those homeowners at the very least.”

The petition filed with the U.S. Supreme Court is less about the merits of the case and more about why the highest court should take it on. Ferraro believes it is worthy of review because Indiana’s law now stands in stark contrast to Supreme Court jurisprudence or precedent on the Takings Clause, she said.

But beyond Indiana, these types of amendments are a growing trend among states, Ferraro added. There is divergent treatment on this issue across states and whether nuisance or trespass authorized by the government is a taking.

“The Court needs to provide some clarity to ensure that more people’s property isn’t unjustly taken,” she said.

Richard Himsel notes that many of the farms adjacent to his property are all family.  lives on the farm his family has had since 1940 in Danville, Ind. Himself has filed a lawsuit challenging the constitutionality of Indiana's Right to Farm laws. He says the presence of the industrial-sized hog farm adjacent to his property, 1,600 yards from his home, has diminished the quality of his life. Due to the odor, his wife no longer lives on the property.

Richard Himsel notes that many of the farms adjacent to his property are all family. He lives on the farm his family has had since 1940 in Danville, In. Himsel has filed a lawsuit challenging the constitutionality of Indiana’s Right to Farm laws. He says the presence of the industrial-sized hog farm adjacent to his property, 1,600 yards from his home, has diminished the quality of his life. Due to the odor, his wife no longer lives on the property. Doug McSchooler/For The Star

The Court is asked to review more than 7,000 cases each year, and it usually accepts only about 100 to 150, according to the Supreme Court procedures.

Ferraro and Meyer know it is a long shot, but they said it is a shot worth taking. And one they feel is important to protect the rights of rural residents not just in Indiana but across the country.

Braun said that neither the petition nor this case “appears to qualify as a viable candidate for the Supreme Court.” He added: “Consequently, we anticipate that the Plaintiffs and their counsel will lose, again, for the fourth time in this unnecessary and protracted lawsuit.”

The Supreme Court is in recess until October, and a decision on whether the case will be accepted likely will not come until the fall.

Harvard Law students win release for two inmates with mental disabilities

via Harvard Law Today

Credit: Jean Gill via iStock/Getty Images

Michael Horrell ’14 became the first of many Harvard Law School students to represent Richard Crowell when he appeared on his client’s behalf at a parole hearing in 2012. Horrell, who was working as a member of the Harvard Prison Legal Assistance Project (PLAP), would ultimately be the first link in a chain that would lead to Crowell’s freedom.

Crowell, 76, suffers from chronic cognitive disability due to a severe traumatic brain injury. As a teenager in 1962, Crowell had been recruited by several older men to drive a getaway car in a convenience store robbery. After one of those men shot and killed the storekeeper, Crowell pled guilty to second degree murder to avoid the death penalty, which was still in force in Massachusetts at the time. After being paroled in 1975, he was attacked and suffered a brain injury in 1987, after which he was returned to prison, where he has remained since 1990.

Despite the board indicating awareness that Crowell’s condition would not improve, he was denied parole on the grounds that there were no existing means outside of prison suitable for supporting Crowell and his disability. PLAP sued the board, claiming discrimination.

Parole cases have long been central to PLAP’s work in representing those incarcerated in Massachusetts prisons. In most cases, two PLAP students represent a prisoner with a life sentence in a single parole hearing.

Thanks to years of administrative and courtroom advocacy by a series of PLAP students, Crowell was recently released on parole. Over the course of several years, succeeding generations of PLAP students pushed the litigation forward—including Tucker DeVoe ’15, Erin DeGrand ’16, Ethan Stevenson ’17, Keke Wu ’18, Beini Chen ’18—and the case ultimately came before the state’s Supreme Judicial Court, where it was argued by Tabitha Cohen ’18.

The SJC’s 2017 ruling in Crowell’s favor set groundbreaking precedent concerning the Parole Board’s responsibility, under the Americans with Disabilities Act, to accommodate individuals with a mental disability in the parole process. That was not the end of the case, though. A 2018 rehearing before the Parole Board and follow-up advocacy—handled by PLAP Senior Clinical Instructor John Fitzpatrick ’87, Asseret Frausto ’19, Regina Powers ’19, Sheridan Cunningham ’20, and co-counsel from the local public defender agency—produced a lengthy wait, until Crowell was approved for parole to a specialized nursing facility in July 2020. In a notable departure from previous practice, the Board itself located and secured the residential placement.

PLAP Court Victory Helps Disabled Parolees: In May 2017, the Massachusetts Supreme Judicial Court extended the American with Disabilities Act to mentally and physically disabled prisoners seeking parole, ruling that the state must help them get support systems in place in the community—thanks to years of work by students with Harvard’s Prison Legal Assistance Project. Tabitha Cohen ’18, above, argued the appeal on behalf of prisoner and brain injury survivor Richard Crowell.

Crowell is among many clients with mental health challenges that PLAP’s students have helped in recent years. When PLAP took his case in 2013, Wilfred Dacier had already been awaiting release on parole for years. In 2010, after serving 15 years in prison during which he was diagnosed with and treated for schizoaffective disorder, and had an unblemished prison record, Dacier had been approved for parole, but only on the condition that the Massachusetts Department of Mental Health (DMH) admit him to an inpatient facility. DMH declined to do so, finding that hospitalization was not warranted, and the board in turn withdrew its decision approving parole.

Fan Li ’15 and Julianne Hill ’15 represented him in the hearing that followed, and Ariel Simms ’16, Erik Mortensen  ’18, and Justin Kenney ’19 continued the work on his behalf through follow-up negotiations and another parole hearing in 2017. Parole was denied each time, with the board unwilling to consider any release plan other than DMH hospitalization.

PLAP took the 2017 parole denial to Superior Court, which reversed the Board’s decision in light of the SJC’s Crowell opinion and the fact that Dacier was unfairly being asked to do something – obtain admission to a DMH facility – that he had no ability to do. Dacier’s case was returned to the Parole Board for a rehearing in January 2020, at which he was represented by Blair Ganson ’20 and Hadhy Ayaz ’21. After months of waiting, Dacier was notified in June 2020 of his release to a skilled nursing facility—as with Crowell, a placement secured by the Parole Board itself.

Read More

They’ve been granted parole. So why can it take years for them to get out of prison?

The Department of Corrections sometimes doesn’t release prisoners until long after they’re approved for parole. Many then are sent back for minor missteps.

Nearly 10 years ago, Wilfred Dacier was told he would be a free man. But for Dacier, now 63, his view continued to be a little corner of the town of Gardner that changed only with the seasons. …That Dacier remained in prison at all after being granted parole, let alone for most of a decade, is “crazy,” says Joel Thompson, a managing attorney at the Harvard Prison Legal Assistance Project at Harvard Law School, who represents Dacier. “In 2010 you paroled him, and the only thing he has messed up since then is failing to get DMH to take him. Why aren’t we just hashing out a release plan together?”

Read full story at Boston Globe »

Bigger Prisons Creating Bigger Challenges

That these two clients had significant mental disabilities was no outlier but the continuation of a trend. According to Fitzpatrick, the student practice organization has been handling parole hearings since at least 1984, when he first worked in PLAP as a student, but the work changed as mass incarceration took root in Massachusetts and nationally. Fitzpatrick returned to PLAP in 1997 as a supervising attorney, and since then he has witnessed how massive policy shifts beginning in the late 1980s, “favoring aggressively arresting, prosecuting and incarcerating more people,” have produced a prison population today in which mental and medical disabilities are highly prevalent.

Not surprisingly, many such prisoners have difficulty getting by in the unyielding and punitive environment of a prison, and PLAP represented a growing number of clients with disabilities in prison disciplinary hearings. Fitzpatrick noted that the “large disabled prisoner population, sentenced to lengthy or life sentences, suffering from a multitude of mental health, cognitive and physical disabilities that only worsen in prison…are underdiagnosed, undertreated, and punished for being disabled. Even worse, many of these prisoners silently suffer neglect or abuse, without any legal representation.”

Before long, PLAP saw the same trend in its parole cases. For disabled prisoners who are eligible for parole, years of inadequate treatment and the accompanying disciplinary sanctions make the possibility of parole very remote.

Joel Thompson ’97, clinical instructor and managing attorney at PLAP, notes that the challenges do not end there, as even prisoners with mental disabilities are expected to produce a proposed release plan.

“We don’t have a society that willingly sets up all kinds of programs for people who are released from prison, but the Parole Board is going to make its decision in part based on whether the prisoner has the right services and supports lined up in the community to ensure success,” says Thompson. “Locating those services and supports is difficult for any prisoner to do. For a person with mental illness or a traumatic brain injury, it is a particularly unfair demand.”

PLAP students respond to the challenge, one among many that arise in their parole work. Even though some of their parole clients are sentenced to life with the possibility of parole, there is no guarantee that they will ever be released. PLAP students research the underlying criminal case, review their client’s prison record, and prepare their client for thorough questioning from the Parole Board, along with trying to craft an appropriate release plan, which must take into consideration everything from housing to work, sobriety and other support programs.

The task is daunting, says Thompson, particularly when the Parole Board has been reluctant to assist in the effort or to divulge what it will find acceptable. “To hide the ball in this way, we believe, is discriminatory. The Parole Board has a responsibility under the Americans with Disabilities Act, to acknowledge a person’s mental disabilities and accommodate them,” including by helping to secure appropriate services in the community.

Students Standing By Their Clients

To the students and supervisors at PLAP, it was inevitable, given the trend of incarcerating people with mental disabilities at a higher rate and for longer periods of time, that questions of disability discrimination against prisoners would present themselves. There was no guarantee, however, that PLAP would be able to pursue the issue so relentlessly for so long. PLAP is a volunteer organization, and any case goes only as far as PLAP students are willing to take it. For Fitzpatrick and Thompson, this was never a concern. When needed, PLAP students are able to pass their cases on to the next willing volunteer. The Crowell and Dacier cases serve as examples, having passed through a total of 14 students.

“Students learn about these issues by representing their own clients, but also by discussing their work with each other,” said Thompson. “Our clients are fortunate to have, every year, committed students who will carry the torch if needed. Graduating students pass the file to the next group, tell them what they need to know, and those students are just as committed as their predecessors.”

For prisoners with mental disabilities that commitment has produced results. The work is not finished, however. For Thompson, fulfilling PLAP’s mission means helping as many prisoners as possible who are in need, and there are many.

“For every Mr. Crowell or Mr. Dacier, there is another prisoner who has a mental disability, or some other significant need, but who does not have representation,” he said. For decades, PLAP’s students have been there to meet that need. “Our students will continue to stand up and advocate for our clients, no matter how unpopular they may be, and to make sure that our government lives up to its obligations.”

HIRC Welcomes New Staff

The Harvard Immigration and Refugee Clinical Program recently welcomed Mariam Liberles as a staff attorney, as well as Sameer Ahmed as Clinical Instructor.

Mariam Liberles

via HIRC

We are thrilled to announce that Mariam Liberles will be joining the team at the Harvard Immigration and Refugee Clinical Program (HIRC) as a staff attorney.

Prior to joining HIRC, Mariam worked for nine years at Catholic Charities of Boston as a supervising attorney (2014-2020) and a staff attorney (2011-2014). At Catholic Charities, Mariam represented clients in a wide range of immigration matters, including family-based and humanitarian cases. She also previously served as a volunteer attorney in the Immigration Unit at Greater Boston Legal Services and worked as an immigration attorney at the International Institute of Boston. Mariam received her B.A. from UCLA and her J.D. from Seattle University School of Law. Mariam is originally from Yerevan, Armenia and speaks Armenian, Russian, Spanish, and basic French.

Please join us in wishing a warm welcome to Mariam!

Sameer Ahmed

via HIRC

We are delighted to announce that Sameer Ahmed will be joining the team at the Harvard Immigration & Refugee Clinical Program!

Sameer was previously an assistant teaching professor at Northeastern University School of Law. Prior to that, he served as a senior staff attorney at the ACLU of Southern California, where he specialized in immigrants’ rights litigation and policy advocacy. His work included challenging federal immigration national security policies that discriminate against Muslim immigrants, ensuring mentally ill immigrants have access to counsel in removal proceedings, protecting the rights of DACA recipients and immigrants in the military, and advocating on behalf of immigrants in Orange County, California. During that time, Sameer served on the board of the Orange County Justice Fund and the City of Santa Ana’s Sanctuary Policy Advisory Group.

Sameer has also served as a senior litigation associate at WilmerHale and as a Skadden Fellow at the Asian American Legal Defense and Education Fund (AALDEF). He has taught as an adjunct professor in the Immigrant Rights Clinic at the University of California, Irvine School of Law, and at the University of Maine School of Law. He clerked for Judge Kermit V. Lipez of the U.S. Court of Appeals for the First Circuit and for Judge Patti B. Saris of the U.S. District Court for the District of Massachusetts.  He received a J.D. from Yale Law School, a Master’s Degree in Legal Research from Oxford University (where he was a Marshall Scholar), and a Bachelor’s Degree in International Relations from Stanford University.

Sameer also serves on the board of Project Citizenship, a nonprofit agency which provides high-quality free legal services to immigrants all over Massachusetts.

Please join us in welcoming Sameer to the HIRC family!

 

 

Judicial Process Clinic Students Break Old Record; Exceed 2200 Hours of Legal Assistance for Massachusetts Judges

by Hon. John C. Cratsley (Ret.)

The U.S. District Court, 1 Courthouse Way, Boston, Massachusetts. Credit: Tony Rinaldo

Working remotely since March 23th, students in this spring’s Judicial Process in Trial Courts Clinic provided over 2,200 hours of legal research and drafting for Massachusetts trial judges.  The clinic included 24 students placed with judges in the U.S. District Court, the Massachusetts Superior Court, and the Roxbury, Dorchester and Quincy community courts. One LL.M student, a judge from Korea, added an important international perspective to our class sessions. In addition to the time spent doing court observation and in conversation with their judges, the students’ legal research and writing are a valuable addition to the heavy work load already carried by existing law clerks. In fact, these extra hours are particularly significant in the Massachusetts state courts due to their limited law clerk budgets. Because of this reality, students placed with state court judges found themselves working directly, one-on-one, with their judges on a variety of needed research and writing.   Student evaluations describe their satisfaction with the opportunity to make this added contribution as well as learn from it:

“I had a lot of opportunity to grow my skills of legal analysis with real-time discussions and my opportunities for feedback on written work were in-depth and highly valuable.”

“Direct feedback on memos and opinion drafts helped me understand how to structure writing.”

“Absolutely amazing experience which I would recommend to anyone. It’s a fabulous learning environment, not just for research and writing skills, but also helped me to appreciate what it means to be a judge.”

Whether in federal court or state court, clinic students worked on a wide range of substantive matters, from motions to dismiss indictments and suppress evidence in the criminal sessions of the Suffolk Superior Court to motions to dismiss or for summary judgement in civil cases in federal court. The variety of their assignments included reviewing habeas corpus petitions, motions for new trial, discrimination claims, freedom of information act litigation, and judicial review of federal and state agency decisions. And as the impact of the Covid-19 pandemic arrived, clinic students worked on timely issues including the legality of remote proceedings in civil and criminal cases, the release of ICE detainees for risk of contracting the virus, and eligibility for unemployment compensation.

These thousands of hours of student legal assistance to busy judges with demanding caseloads, urgent issues, and limited resources represents yet another of the valuable contributions of HLS clinics.  For our students and the judges, this is a win-win clinic. As one student put it, “I love being in court, and I loved the attention from the judge and the clerk, who were both fantastic attorneys and made sure I was getting meaningful experience, both witnessing interesting things and providing work that was actually useful.”

 

Federal judge orders Department of Education to cancel loans for 7,200 students

by Shelley Murphy

via Boston Globe

In a statement, Massachusetts Attorney General Maura Healey (pictured last September) said the ruling will result in millions of dollars in financial relief and marked the first time a federal court has ordered a “borrower defense discharge” of federal student loans.STEVEN SENNE/ASSOCIATED PRESS/FILE

A federal judge has ordered US Department of Education Secretary Betsy DeVos to cancel the student loan debt of more than 7,200 Massachusetts students who attended Everest Institute, part of Corinthian Colleges’ defunct national chain of for-profit schools, capping a prolonged legal battle.

In a 73-page decision, US District Judge Leo T. Sorokin ruled that the Department of Education must approve a 2015 application by Massachusetts Attorney General Maura Healey seeking a discharge of the students’ federal loans based on allegations of widespread illegal conduct and deception by Corinthian. The order also applies to Parent Plus loans obtained on the students’ behalf.

“Thousands of Massachusetts students cheated by Corinthian have finally had their day in court, and they have won,” Healey said in a statement Friday. “This landmark victory for students will cancel the federal loans for thousands of defrauded borrowers, mostly Black and Latinx students, targeted by a predatory for-profit school and abandoned by Secretary DeVos and the Trump Administration. For five years, our office and the Project on Predatory Student Lending have fought to win students the relief they deserve and today we have won decisively.”

Healey said the ruling will result in millions of dollars in financial relief and marked the first time a federal court has ordered a “borrower defense discharge” of federal student loans. Borrowers may be eligible to have such loans forgiven if the school misled them or engaged in other misconduct.

The ruling was issued in a case the Project on Predatory Student Lending Legal Services Center of Harvard Law School had filed on behalf of five students who had attended Everest Institute, which had campuses in Brighton and Chelsea. It went bankrupt in 2015 after running afoul of state and federal regulators.

In his ruling, Sorokin granted the plaintiffs’ request for class-action status, expanding his order to include more than 7,200 students who attended the school.

“This ruling is a clear and powerful statement of the rights of student borrowers, and a resounding rejection of the Department of Education’s ongoing and across-the-board refusal to recognize these rights and cancel fraudulent student loans,” said Toby Merrill, who directs the Project on Predatory Student Lending.

She said 80 percent of students at Everest were women and more than three-quarters were Black or Latinx. She said they have been struggling to pay debts that courts had previously declared invalid.

Corinthian’s demise followed numerous investigations for misconduct, including a multi-year probe led by the US Department of Education that resulted in a $26.6 million fine for falsification of job placement rates at Corinthian campuses in California.

In 2014, Attorney General Martha Coakley sued Corinthian, alleging they used aggressive and deceptive marketing and loan tactics to boost enrollments and profits. Corinthian pushed students to take out subprime loans through the school, which charged interest rates as high as 18 percent, so they could qualify for federal student loans, Coakley alleged.

In 2016, a state Superior Court judge found the school had violated the Massachusetts Consumer Protection Act and ordered Corinthian to pay more than $67 million in restitution.

Yet the Department of Education continued to collect payments from students. In some cases, the department seized students’ tax refunds when they failed to pay.

In 2018, in another suit brought by the Project on Predatory Student Lending, Sorokin ruled the Department of Education had illegally taken tax refunds from two students without addressing Healey’s assertion that their loans were fraudulent and unenforceable.

But the Department of Education has refused to acknowledge the state’s application and continued to collect on Corinthian student loans, Healey said.

Former Corinthian students had delinquent or defaulted federal loans listed on their credit reports, had their financial and educational opportunities negatively affected, and have been limited in their ability to obtain employment and housing, authorities said.

In October, Healey sued Devos, alleging the Department of Education illegally failed to consider the application she filed four years earlier.

They’ve been granted parole. So why can it take years for them to get out of prison?

by Jenifer B. McKim

via Boston Globe Magazine

Advocates say the Massachusetts parole system suffers from a “trail ’em, nail ’em, and jail ’em” culture, focusing on snaring individuals for minor missteps.ADOBE STOCK

Nearly 10 years ago, Wilfred Dacier was told he would be a free man. But for Dacier, now 63, his view continued to be a little corner of the town of Gardner that changed only with the seasons. The positive vote he received from the Massachusetts Parole Board in 2010 did not result in his release from the North Central Correctional Institution. That’s nominally because Dacier has been diagnosed with schizoaffective disorder, and the parole board made his release conditional upon him moving to a secure facility run by the state Department of Mental Health, which repeatedly declined to give him housing. But Dacier’s incarceration for nearly a decade after being granted parole offers us Exhibit A of why many say the Massachusetts Parole Board is ripe for reform.

Consider the reason why mental health officials did not take Dacier: After examining him, they found in 2011 that his condition did not warrant being housed in a secure facility. That would seem to be good news for Dacier and for Massachusetts taxpayers, who pay for our prisons. The parole board, though, rescinded its decision to grant Dacier parole, worried about where he could go. Board members then refused to relent for years, despite a 2015 report from a psychologist, appointed by the board, that found Dacier could gradually transition to the community without the support of the Department of Mental Health. Frustrated, Dacier took his case to the Suffolk County Superior Court, where a judge in September 2019 found the board had penalized him because of his mental illness — finally prompting change.

That Dacier remained in prison at all after being granted parole, let alone for most of a decade, is “crazy,” says Joel Thompson, a managing attorney at the Harvard Prison Legal Assistance Project at Harvard Law School, who represents Dacier. “In 2010 you paroled him, and the only thing he has messed up since then is failing to get DMH to take him. Why aren’t we just hashing out a release plan together?”

Dacier’s situation is not unusual, say prisoners’ rights advocates, citing both the parole board’s treatment of mentally ill prisoners and long delays in making decisions and releasing people to the community. The Massachusetts Supreme Judicial Court in 2017 ruled in favor of another inmate claiming he was being discriminated against because of his disability. Similar allegations are under investigation by the US attorney’s office, according to interviews and documents obtained by the WGBH News Center for Investigative Reporting. The US attorney’s office says it can neither confirm nor deny whether an investigation is taking place. But James Pingeon, an attorney with Boston-based Prisoners’ Legal Services of Massachusetts, says disability law attorneys have received questions from federal investigators about the inquiry — an effort he supports — as recently as this spring.

“There has been a longstanding problem with the treatment of persons with mental illness by the parole board,” Pingeon says. “It’s not acceptable to hold someone in prison because you don’t want to provide them with the necessary support and services in the community.”

Wilfred Dacier in 2020, flanked by student lawyers during a parole hearing.

Wilfred Dacier in 2020, flanked by student lawyers during a parole hearing.FROM THE MASSACHUSETTS PAROLE BOARD

Massachusetts was the first state in the country to create a parole system, back in 1837. The aim was to give prisoners who seemed unlikely to cause additional harm a chance to finish their sentences while rebuilding a life outside of prison. The current structure, which has been amended over time, provides parolees a strict set of conditions to live by in the community, with supervision overseen by the board. The board also has the power to reduce sentences, or pardon a prisoner entirely.

Today, the seven-member board, appointed by the governor for five-year terms, oversees a nearly $24 million budget and 200 employees, tracking about 1,400 parolees. Each board member earns $130,000 a year; the board chair takes in $153,000. Six of the seven current board members were appointed or reappointed by Governor Charlie Baker.

The job is high-stakes: The board often must decide whether to release people who have committed violent crimes, some of them sentenced to life in prison. If board members release someone who commits a new crime, consequences can be severe. In 2008, the board paroled Dominic Cinelli, who went on to kill a Woburn police officer in a shoot-out in December 2010 (Cinelli also died). A report found the board had made mistakes in releasing and supervising Cinelli, and then-Governor Deval Patrick forced the resignation of five board members. (In 2018, 64 parolees — less than 5 percent of those living in the community — were returned to prison after being arrested for new crimes, according to state records.)

Parole board officials declined to talk in person for this story. State spokesman Jake Wark released a statement saying the board “conducts thoughtful, individualized reviews for each candidate, and when the facts and evidence support release to the community, the board strives to place parolees in settings that are appropriate to their needs and compatible with public safety.”

Joe Russo, executive committee member of the American Probation and Parole Association and program manager at the University of Denver’s National Law Enforcement and Corrections Technology Center, says parole boards nationally struggle with managing risk with a troubled clientele and significant pressure from politicians and the public. “When things go wrong, it ends careers, it ends good programs,” he says. “It typically has wide, sweeping effects.”

Patricia Garin, an attorney who has long worked in front of the parole board, said that before 2011, decisions for prisoners serving life sentences were almost always issued within 60 days of the hearing. After 2011, prisoners’ advocates say the parole board became slow to act. The length of time between hearings and decisions for inmates with life sentences rose from an average of three months in 2015 to more than nine months in 2018, according to a WGBH News Center for Investigative Reporting analysis of state records. And even when Massachusetts prisoners were approved for parole, they remained incarcerated for an average of 200 additional days before finally being released, according to a 2018 report by The Council of State Governments Justice Center.

But when COVID-19 started spreading through the state’s prisons, advocates increased their pressure on Baker and the parole board to expedite the release of parolees. The board says it is listening: In late March, Gloriann Moroney, who became chair in 2019, said at a public hearing that there were some 300 people who had been approved for parole but were still behind bars. She attributed much of the delay to a two-week process finalizing housing plans and notifying victims. While the board could not say in June how many of the 300 had been released, officials did say that they were speeding up the process and working with advocates to help find homes for parolees with substance abuse issues. This has resulted in letting out some 800 parolees since late March, with 229 still waiting.

Advocates say many prisoners waiting to get out are those with mental illnesses. About 23 percent of the state’s prison population of more than 7,000 people are designated as having “serious mental illness,” court records show. Former parole board member Lucy Soto-Abbe says she has concerns about the system’s ability to care for such prisoners. Soto-Abbe spent eight years as a member of the board, after serving as a victim advocate in the Hampden County district attorney’s office. She worried about some mentally ill prisoners, like Dacier, who were stuck behind bars. She said the board was challenged because it couldn’t force the Department of Mental Health to take them. “I felt bad for a lot of these clients because some of them don’t belong in jail,” she says.

‘The length of time between hearings and decisions for inmates with life sentences rose from an average of three months in 2015 to more than nine months in 2018. ’

Robert Kinscherff, a psychologist and lawyer who was hired by the parole board to evaluate Dacier and at least a handful of other inmates in 2015, says the state may be discriminating against mentally ill prisoners, in violation of federal law. He says he doesn’t know how many others with psychiatric disabilities are still incarcerated, but believes there’s a systemic problem. “The disability is the problem,” he says, “because if they didn’t have the disability, they would have been paroled.”

Massachusetts courts have also have weighed in, several times. There was the Superior Court determination in 2019 that Dacier was being penalized for “simply having a mental illness.” Another prisoner, Richard Crowell, took his concerns that he was being refused parole because of a disabling brain injury to the Massachusetts Supreme Judicial Court — and won.

Crowell was initially sent to prison as a teenager after serving as the getaway driver in a 1962 fatal armed robbery. He was first released on parole in 1975 and was brought back several times for violating his parole, court records show. In 1987, he sustained a brain injury that his lawyers say causes him to lack impulse control — issues they say contributed to subsequent parole violations. In 2003, Crowell went back to prison and hasn’t been let out since. During a 2012 hearing, one board member noted Crowell had a chronic, lifelong condition that “might get worse,” according to court documents. The board denied his release request, noting he didn’t have an adequate release plan to ensure he would remain compliant. But the state’s top court, in its 2017 ruling in Crowell’s favor, said the parole board has a “responsibility to determine whether reasonable modifications” could be made to achieve release.

Crowell, now in his late 70s, went before the board again in October 2018. His lawyer, John Fitzpatrick, a supervising attorney at the Harvard Prison Legal Assistance Project, said in early June that “Richard remains in prison, largely, if not solely, because he is brain damaged and the state can’t figure out what else to do with him.” (At press time, Crowell received approval for release.)

There’s also Curtis Earltop — convicted in 1971 of the murder of a woman in Boston — who received a positive parole vote in 2016 on condition that the diagnosed schizophrenic be released to a secure state facility. But nothing happened until this spring, after the prison system was overtaken by the spread of COVID-19 and he was finally released. Earltop’s attorney, Jeffrey Harris, says his 69-year-old client’s case was complicated, but wonders why it took nearly four years to secure a transfer out of prison, despite Harris’s repeated objections.

Earltop, reached by phone in June at the Farren Care Center in Turners Falls, says he is happy to be out of the Old Colony Correctional Center in Bridgewater, free from the constant supervision of guards and able to enjoy a smoke. “I was approved to be released in 2016 and they kept me all this time,” he says. “I feel good now.”

__________

Wilfred Dacier went to prison for a brutal murder he committed in 1995 when he was 38, stabbing his younger sister Susan 14 times amid a dispute over his inability to hold a job and contribute financially. Afterward, Dacier called his sister-in-law in New Hampshire and told her he had done “a real bad thing.” Then he called 911. He was sitting on the front steps of his family’s home in Lowell, with blood on his hands, when police arrived. At Bridgewater State Hospital prior to his sentencing, he was diagnosed with schizoaffective disorder, according to court records, which has symptoms including mania, hallucinations, and depression.

Dacier in 1995, after he killed his sister, but before he was diagnosed with schizoaffective disorder.

Dacier in 1995, after he killed his sister, but before he was diagnosed with schizoaffective disorder. HANDOUT PHOTO

About five years after first approving Dacier for release, the parole board hired Kinscherff to examine him and figure out a solution. Kinscherff submitted a six-page report on Dacier in 2015, noting that the then-58-year-old had been abusing cocaine in the period leading up to his sister’s murder, but that his mental health had stabilized with counseling and medication including Prozac and Risperdal. He also said Dacier could be released through a transitional program from a minimum security prison to the community, with “ongoing access to psychiatric services.” But in 2017, the parole board again rejected Dacier’s release, saying he had “unresolved anger issues.” The board recommended he appeal the Department of Mental Health’s decision not to take him.

Dacier did appeal, but was again rejected for placement. Department of Mental Health officials declined to comment on Dacier’s case, but did say that being placed in a secure facility requires that a patient “has a mental illness and presents a danger to himself or others” —suggesting Dacier does not present such a risk. Dacier took his case to Suffolk County Superior Court, claiming the parole board’s decision was arbitrary and discriminated against him because of his disability. Last September, Superior Court Justice Rosemary Connolly agreed, finding the board cited “anger issues” to justify keeping him in prison after its earlier positive vote. She found the board was not complying with the Americans with Disabilities Act and sent Dacier’s case back to the parole board for review.

That Dacier remained in prison five years after his report dismays Kinscherff, who says, “I can’t find any rational basis for maintaining him in prison.‘’

Dacier finally got his review in January. He sat in front of the parole board, hands shackled, flanked by two volunteer student lawyers from Harvard. Charlene Bonner, a psychologist who has been on the parole board since 2011, led the questioning. She said she would like to see him safely released but wanted him to know the challenges board members face. “We see people who have failed and have done some really bad things,” she told Dacier. “And some of those people, it was because they stopped taking their medication, they relapsed on substances.”

A prosecutor from the Middlesex district attorney’s office opposed Dacier’s parole, citing the murder and his mental illness. Dacier’s sister-in-law Karen, the person he called after the murder, wasn’t able to make the January hearing. But in a phone interview, she said Dacier has succeeded in prison because of the structure. “I would be horrified and terrified” if he were released, she said.

During the hearing, Dacier told the board’s members about his work in therapy and his remorse for killing his sister. “We can never, never, never minimize my crime,” he said. “Never.”

He said he reads the Bible and attends religious services, and exercises as much as he can. He concluded by asking the board to consider not just what he did 25 years ago, but who he is now. “I never want to feel that kind of anger again,” he said.

At the end of the roughly 2½ hour hearing, Dacier stood up and was escorted out of the hearing room and back to prison to wait.

Some parolees have been returned for alleged crimes even when found innocent in a court of law.

Some parolees have been returned for alleged crimes even when found innocent in a court of law. IMAGES FROM ADOBE STOCK/GREG KLEE/GLOBE STAFF ILLUSTRATION

The parole board’s glacial process for prisoners such as Dacier is visible because people serving life sentences have public, recorded parole hearings. They are also allowed legal representation. It is difficult to tell how the process works for the rest of the prison population because all the other parole hearings are held in private, with only certain prisoners allowed an attorney.

When prisoners do receive parole, it’s not a lasting get-out-of-jail-free card. Instead, advocates say it’s closer to a revolving door. Just under a quarter of state prisoners on parole in Massachusetts are reincarcerated within the first year, not because they committed a new crime, but because they violated a condition of their parole, according to a 2018 report.

Indeed, so-called technical violations were the reason cited for revoking parole in nearly 90 percent of cases in Massachusetts in 2018, according to the most recent state statistics available.

Parolees returned to prison have been cited for failing to pay supervision fees — parolees must pay the state $80 a month to cover costs — or for smoking marijuana, failing to find work, drinking a glass of wine, and protesting outside a prison, state records show.

In June, a Massachusetts appeals court judge detailed the case of a parolee returned to prison in 2019 for using a smartphone — although phone usage had nothing to do with his original crime. He’s awaiting a new hearing in front of the board this summer. A Randolph man was returned to prison for nearly two years for making a phone call to someone with a criminal record and drinking a glass of wine.

Each year, thousands of Massachusetts prisoners waive or postpone their right to a parole hearing. Jorge Renaud, an ex-convict who is now a prison reform advocate, says many prisoners would rather spend their sentences in jail than pay the state $80 a month to be supervised by an armed parole officer with wide discretion about their lifestyle. In 2016, a federally funded study found nearly half of parole-eligible people in Massachusetts either waive or postpone their hearings, partly because they don’t want to be subjected to parole conditions. “They know that if you get out on parole in Massachusetts, there’s a good chance you are going to come back,” Renaud says.

Parole board members also declined to discuss the topic of revocations, though officials said these usually occur after multiple violations and increased supervision. Wark, the state spokesman, in a statement said that “the board sets reasonable conditions that promote successful reentry, to the benefit of the parolee and the community.”

But prisoners’ advocates say the Massachusetts parole system suffers from a “trail ‘em, nail ‘em, and jail ‘em” culture, focusing on snaring individuals for minor missteps. “They didn’t commit a new offense. Most of them didn’t even do anything serious,” said attorney Patricia Garin at a panel discussion on the parole system’s problems that was held at the Massachusetts State House in January. The briefing cited revocations, long delays, and lack of accommodations for people with disabilities among its problems. Garin runs a law clinic at Northeastern University that helps prisoners and parolees in front of the board. “It’s counter to what parole is supposed to be about. Massachusetts over-supervises people,” she says.

Nationally, public policy specialists and some states are reexamining conditions of supervision for parole and probation, concerned that too many people are being unnecessarily funneled back to prison. Across the country, 4.5 million people are living under community supervision, twice the population of people incarcerated in federal and state prisons and local jails, according to a 2018 study by the Pew Charitable Trusts’ Public Safety Performance Project. That project’s director, Jake Horowitz, says the system’s failures hurt taxpayers as well as parolees, because supervising someone on the outside costs a fraction of keeping them in prison.

“When supervision fails, it goes from relatively cheap to really expensive in a hurry,” Horowitz says. “If we can get that supervision right, we can have fewer people on it, we can have more successful completion of it, and we’ll have fewer people returning to incarceration.”

The Massachusetts parole system has largely escaped efforts at reform despite longtime concerns about problems. Nearly two decades ago, the Boston Bar Association submitted a report recommending that the state diversify the professional backgrounds of parole board members, which is dominated by law enforcement specialists. It still is, although legislation has been filed to diversify it, ideally adding people with backgrounds in substance abuse counseling and psychology. Meanwhile, the parole board has essentially abdicated its role as a corrective body for overly harsh sentences. Through June, it has not held a hearing on a sentence commutation since 2015, state officials confirmed in response to a public records request. This is despite the dozens of prisoners who have requested such re-consideration.

Katy Naples-Mitchell, a legal fellow with the Charles Hamilton Houston Institute for Race & Justice at Harvard Law School, says problems with the parole board, and oversight from the governor, are “antithetical to public health, community safety, good governance, and second chances.” She says this is particularly troubling for people of color who disproportionately populate the system.

“The failure to hold commutation hearings for hundreds of pending petitions is a dereliction of duty,” she says, “and one of many ways in which the parole board actively perpetuates structural racism.”

Despite ongoing issues, the parole system was largely left out of the 2018 omnibus criminal justice bill, which prompted a coalition of prisoners’ advocates, associations, and attorneys to send a letter to Baker urging reform that year. Disparate groups, including the Massachusetts Association for Mental Health and the Muslim Justice League, cited “dismal parole rates,” “extraordinary long” wait times for decisions, and “onerous and demeaning” treatment of parolees by supervising officers.

In 2019, the Massachusetts Parole Board received an “F” grade from the Prison Policy Initiative, a Northampton-based nonprofit. While many states received failing grades, Renaud, who authored the study, says, Massachusetts “is one of the worst” systems in the country in certain areas, including the number of parolees returned for technical violations. Renaud was on parole in Texas when he went to work for the Prison Policy Initiative. He was transferred to the Massachusetts parole system, which he found far more restrictive. Unlike in Texas, he was required to wear a GPS monitor — some 40 percent of parolees in Massachusetts are required to wear them — and was prohibited from associating with people with criminal records, essentially preventing him from doing his job. Renaud, who now works in Texas for the nonprofit LatinoJustice PRLDEF, wrote a blog about the experience, titled “Why did they shackle me? Because they could.”

Consider the case of Kent Tyler, who was returned to prison for nearly two years for making a phone call and drinking a glass of wine.

Tyler had been released from state prison under community supervision in 2014, and was living with his wife, Holly, in their Randolph home. He was working as a warehouse supervisor and gave a 2 a.m. wake-up call to an employee. But that employee also had a criminal record, and the parole board forbids most contact between parolees and former prisoners. When Tyler got a call soon after from his parole officer, instructing him to come to his office, he felt like his life was imploding. He knew what that kind of call meant — a direct ride back to prison. So he drank a glass of wine to calm his nerves. But drinking alcohol also violates parole.

Kent Tyler (left), accompanied by a student attorney at a parole board hearing in January.

Kent Tyler (left), accompanied by a student attorney at a parole board hearing in January.FROM THE MASSACHUSETTS PAROLE BOARD

As he feared, Tyler was reincarcerated. Nearly 18 months later, in late January, Tyler sat in front of the parole board in a Natick hearing room, dressed in a dark turtleneck and blue-and-white sweater, his hands shackled, next to a student attorney. He apologized to the friends and family of Donald Anderson, a Boston store owner who was killed in a 1975 robbery, as he and another man wrestled with Anderson over a gun. “His death happened because of my actions,” Tyler said, according to a video of the proceedings. Tyler also apologized to the parole board and his family for letting them down again. (Tyler declined to comment for this story through his attorneys.)

Tyler’s wife, Holly, told the board that her husband is loved and missed in the community and by his family. His absence also is costing them — his salary helped pay the bills. “He’s needed home,” she says. “That’s all I could say, he’s truly needed home.”

Tyler had been here before. He was first paroled in 1990 and was jailed again three times for parole violations, state records show. He told the board that since his last revocation in 2013, he’d participated in counseling and was confident he would succeed on the outside. Back at home, he believed things were going well — he had a good job and the support of his wife, adult children, and his ailing mother. He didn’t worry about the phone call to an employee, also a parolee, because it was job related, he told the board.

“I thought because of the rule, if it is concerning work or a meeting, that was OK,” Tyler said, referring to an exception in parole rules permitting parolees to have “incidental” contact with other people with criminal records for reasons such as employment. “I didn’t know I was out of bounds.”

“It’s not part of your job description, is it, to call people and be their alarm clock?” asked Karen McCarthy, a former Springfield prosecutor who is now a parole board member. She questioned whether Tyler had a broader relationship with the other parolee, whom he had known in prison.

Another board member said if he had been honest about the call, before the glass of wine, he likely wouldn’t have been brought back.

Board member Charlene Bonner, a psychologist first appointed in 2011, said his current mistakes don’t seem so bad, but in the context of past violations are more problematic. “I think it’s sad that you have been back for 18 months for this,” she said, referring to the phone call and the glass of wine. “I think that you would benefit from getting some help on how to resolve conflicts, instead of reacting to this fear that authority is going to be unfair to you.”

Gregory Diatchenko during his parole hearing in 2019.

Gregory Diatchenko during his parole hearing in 2019.JESSE COSTA/WBUR

Stories of parolees returned to prison for what appear to be minor technical violations are plentiful.

Bruce Wilborn was paroled in 2009, after suing the parole board over claims it discriminated against him for being homosexual. He was sent back to prison 10 months later, for maintaining a romantic relationship with someone in prison, state records show. Wilborn was cited for working with the prisoner’s father to get the prisoner a computer, so Wilborn could communicate with him privately. But parole board members suspected him of trying to help the inmate escape. Wilborn is still in prison, even though he told the parole board in 2018 that he would no longer prioritize “romantic relationships” over his well-being.

Gregory Diatchenko’s parole violations included attending a 2018 protest outside a state prison (parolees cannot “visit” prisons). He also drank, smoked marijuana — twice — and lied to his parole officer about his romantic relationships, because he was afraid state involvement could damage his connections, state records show.

Diatchenko was originally imprisoned for committing a murder when he was a juvenile, a case that became the basis for the state’s Supreme Judicial Court declaring mandatory life sentences for juveniles unconstitutional in 2013. He was released on parole in 2015, before he was put back behind bars in 2018, mostly due to protesting and drinking. Last year, Diatchenko went back in front of the parole board in a hearing packed with supporters. He apologized for his mistakes, saying he hadn’t understood that protesting outside a prison counted as visiting. He also said he would continue a 12-step program for alcohol addiction, according to state records. In May 2020, the parole board voted to keep the 56-year-old behind bars for at least two more years, at the medium security prison in Shirley, one of the local prisons with the largest outbreaks of COVID-19.

Some parolees have been returned for alleged crimes even when found innocent in a court of law. That’s what happened to Donald Perry, who was charged with receiving stolen property while on parole in 2011, and found not guilty. But the parole board refused to accept the verdict, claiming Perry had lied at the trial, and revoked his parole. Perry has maintained his innocence. Two years later, the board decided to release him, citing overwhelming community support, including a petition signed by 142,000 people.

Perry, now 66, was later released from parole entirely by a Superior Court judge, who cited his exemplary work for the community. Since then, he has been lobbying for reforms, including pushing the state to terminate parole for people who have been on supervision for decades without incident. The state has released only two people from long-term supervision since 2015, according to parole records. They include one former parolee who spent nearly 22 years on parole and another who lived under state watch for nearly 40 years. In the same period, the board has rejected 23 other requests. Parole is often traumatizing, Perry says. “Being on parole in Massachusetts is like being in a fun house,” he says. “You never know where the trapdoor or the smoke and mirrors are.”

An outpouring of community support for Donald Perry helped persuade the parole board to release him.

An outpouring of community support for Donald Perry helped persuade the parole board to release him. MEREDITH NIERMAN

An increasing number of studies question whether putting parolees back in jail for minor violations is effective. Of note is the practice of making it a violation to have contact with other parolees. But people who have spent a long time behind bars may have no other social structure, says Kelly Mitchell, executive director of the Robina Institute of Criminal Law and Criminal Justice in Minneapolis. “Conditions like that can actually sever the social supports that people need to be successful.” An effective parole board would try to work with parolees to overcome problems, she says. A failed drug test could prompt treatment rather than a return to prison, for instance.

The parole board declined to comment on whether it might consider revising its conditions for release. For the moment, COVID-19 may be the most effective change agent the Massachusetts Parole Board has encountered. As the virus swept through state prisons and jails this spring, the parole board expedited decisions for certain cases.

One of these was likely Kent Tyler’s. In May, five months after his hearing, the board ruled in Tyler’s favor and he was released within two weeks, state records show. But he was given stringent new conditions requiring him to attend a 12-step program three times a week, stay away from the parolee he called on the phone, and wear a GPS monitor if required by his parole officer. The next month, the board granted Gregory Diatchenko’s appeal, provided he go to a long-term treatment program for alcoholism.

And in early June, surprising even his attorney, the parole board told Dacier he was finally free to leave prison; he would be heading to a private nonprofit mental health care facility in Turners Falls.

“It’s real progress,” says Thompson, his attorney. “It’s well deserved.” Now he hopes this change, years coming, has broader implications for the way the parole board will act going forward. “It changes a lot as to Wilfred Dacier,” he says, “but remains to be seen about other candidates.”

__________

Jenifer McKim is a senior investigative reporter with the WGBH News Center for Investigative Reporting. Send comments to magazine@globe.com.

Former Globe reporter Maria Cramer contributed to this report, in addition to journalism students from Boston University and Center interns including Keminni Amanor, Ashley Belanger, Sophia Brown, Anoushka Dalmia, Caitlin Faulds, Angela Fu, Mikayla Heiss, Eleanor Ho, Sirun Li, Elias Miller, Lena Novins-Montague, Samantha Purcell, Anna Stjernquist, Katharine Swindells, and Matteo Venieri.

Animal rights advocates sue federal government over treatment of research primates

by David Abel

via The Boston Globe

Monkeys at Harvard’s former New England Primate Research Center in Southborough. Between 2010 and 2012, four monkeys died at the facility.GLOBE STAFF PHOTO

In the wake of regulators formally rejecting a petition to improve the conditions of non-human primates used in federally funded research studies, a group of local animal rights advocates has sued the US Department of Agriculture, saying the agency refuses to raise standards for the animals.

Six years ago, the New England Anti-Vivisection Society, the Animal Legal Defense Fund, and other groups called on regulators to create better conditions for some 106,000 non-human primates held in captivity.

The government didn’t respond to their petition until last fall, after Harvard’s Animal Law and Policy Clinic filed a lawsuit demanding a response to their allegations, which include the government’s failure to ensure adequate living conditions for rhesus macaques, baboons, marmosets, and other primates.

In the latest lawsuit, filed Thursday in federal court in Maryland, the animal rights groups called the agency’s rejection of their 2014 petition “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” noting that the existing standards were written in 1991, when less was known about the psychological needs of the primates.

“If these primates are going to continue to be used in the thousands for the benefit of humans, they at least deserve to be treated as humanely as possible while waiting to be experimented on, during the experiments, and while recuperating,” said Katherine Meyer, the clinic’s director.

USDA officials said the agency does not comment on litigation.

In a letter sent to the plaintiffs late last year, USDA officials disputed some of the allegations and said existing regulations are sufficient.

“Each case of distress is unique, specifying one approach to manage such cases would be ineffective,” wrote Betty Goldentyer, the agency’s acting deputy administrator of animal care, in response to one of many requested policy changes from the petitioners.

In Massachusetts, primates had been held in 15 USDA-licensed facilities, including ones at the Massachusetts Institute of Technology, Harvard Medical School, Boston University, Massachusetts Eye and Ear, Charles River Laboratories, and the University of Massachusetts Medical School.

The plaintiffs submitted their petition to the USDA a year after the National Institutes of Health adopted standards to protect the psychological well-being of chimpanzees used in federally funded research.

Animal rights groups have urged the federal government to recognize that the primates require environmental enrichment, such as living in social groups, access to the outdoors, and opportunities to forage for food, climb, build nests, and make choices about their activities.

Many institutions have failed to allow such enrichment, the groups said. Between 2010 and 2012, for example, four monkeys died at Harvard’s former New England Primate Research Center in Southborough. The university was fined $24,000 by federal regulators.

After the deaths became public, the Globe reported that a dozen monkeys between 1999 and 2011 had been found dehydrated and dead in their cages or had been euthanized for poor health.

The lawsuit, filed in conjunction with the Animal Legal Defense Fund of California, contends that the government has a duty to improve research primates’ living conditions, saying they share many cognitive abilities and needs with humans. Like humans, the primates exhibit complex emotions, develop relationships, and require mental stimulation.

“The current regulations allow research labs to make their own rules,” said Brett Richey, a Harvard Law student who helped draft the lawsuit. “The lives of non-human primates who think, feel, care, regret, imagine, and invent, just like us, are on the line. We cannot ignore their suffering any longer.”

Refugee Eligibility: Challenging Stereotypes and Reviving the ‘Benefit of the Doubt’

by Sabi Ardalan

via Rethinking Refuge

Asylum lawyers have long grappled with a tension inherent in refugee law – how to win protection for individual clients without reinforcing victim narratives and negative stereotypes about other cultures and countries. Last month, the Trump administration seized upon this tension in a new 161-page proposal that would rewrite the refugee definition and cut off most asylum seekers from protection. Specifically, the rule would make ‘evidence based on stereotypes’ inadmissible – on its face an unobjectionable proposal.

Indeed, at a time when we are all called upon to challenge our assumptions, reflect on our biases, and address the ways in which our laws and legal practice reinforce systemic racism, the provision would appear to be both timely and necessary.

Yet, because of the corroborating evidence so often required to establish asylum eligibility, the provision would make it difficult, if not impossible, for many to obtain protection. The rule’s wide-ranging provisions include measures to fast-track deportations of asylum seekers, reject asylum applications as frivolous without ever affording asylum seekers a day in court, ratchet up the type of harm required to demonstrate eligibility for protection, and make it extraordinarily difficult to show a connection between the harm suffered or feared and a protected ground,[1] as the refugee definition requires. It would be too much to expect that a timely provision would be responsive to refugees’ plight in the current moment, instead of another cruel attack on asylum.

The proposed rule upends the protections that Congress intended to provide when it promulgated the Refugee Act forty years ago. As a result, advocates are mobilizing to submit public comments in an effort to derail its publication, or at least slowdown that process. And assuming the rule is finalized and published, lawyers will inevitably challenge it in court.

At the same time, however, despite its questionable origins, the proposal affords advocates, scholars, and adjudicators alike an opportunity to take a step back and interrogate the corroboration requirements in U.S. asylum law, including the type of country condition documentation necessary in order to establish eligibility for protection.

It is time to rethink the evidence so often submitted and relied upon in asylum claims, to dial back the corroboration demands, and to return to a core principle of refugee law – the need to afford asylum seekers the benefit of the doubt. We need a better way to establish asylum eligibility and challenge stereotypes.

As my research and that of others has shown, access to holistic representation and development of a more robust and readily accessible body of empirical country condition documentation are critical to this process.

What would the proposed rule do?

Take the case of Pablo (name and details changed to protect confidentiality), a young man whom the Harvard Immigration and Refugee Clinic recently successfully represented in immigration court. He fled his home country in Central America in 2013 as a teenager because members of a powerful gang wanted him to run drugs for them. When he refused, gang members kidnapped him and threatened to killed him. The gang members targeted Pablo at least in part because they believed he was gay; the police had targeted him for that reason too. He came to the United States to seek safety, travelling by foot and car through multiple countries to the U.S. border.

When Customs and Border Patrol agents found that Pablo did not have immigration papers, they detained him. He was held in several different detention centres for months until he passed through the ‘credible fear’ screening process. It took him over a year to find an attorney who would represent him at a reduced rate and file a barebones asylum claim for him in immigration court.

Under the proposed rule, Pablo’s chances of success would be slim. In all likelihood, he would be deported to his home country without ever seeing an immigration judge, would fail to pass the threshold credible fear screening process, and/or face the rejection of his asylum application if he was afforded the chance even to file it.

As is typical of many asylum seekers, Pablo did not have much in the way of proof, other than his own declaration. The bulk of the evidence submitted in support of his case consisted of news articles and human rights reports describing rampant homophobia among gang members and authorities in El Salvador – much of which could be excluded under the new rule, given its directive that ‘evidence promoting cultural stereotypes . . . shall not be admissible.’

The proposed rule encourages adjudicators to dismiss as baseless valid asylum claims, like Pablo’s, that involve an ‘interpersonal dispute[] of which governmental authorities were unaware or uninvolved’, as well as opposition to gangs. Under the rule, threats of death, like the ones Pablo received, might not be considered persecution, unless there was an ‘actual effort to carry out the threats’ – even though, as other scholars and I have argued, the psychological harm inflicted by such threats constitutes persecution under U.S. law.

The fact that Pablo travelled through multiple countries without applying for protection, entered the U.S. without papers, and took more than a year to apply for asylum would also all be considered adverse discretionary factors and held against him under the new rule – despite longstanding precedent recognizing that past persecution and the likelihood of future persecution ‘generally outweigh all but the most egregious adverse factors’.

Where does that leave us?

It is imperative that as many people as possible weigh in and voice their opposition to the administration’s efforts to rewrite asylum law, since the administration will have to consider and address the comments before publishing the final rule.

At the same time, it is important to use this moment to reconsider the type of evidence required and presented in asylum cases and to interrogate the cultural stereotypes that adjudicators, government attorneys, and advocates alike often rely on, particularly in the context of gender and LGBTQ+ asylum claims.

Without access to appointed counsel, the barriers to obtaining and presenting any corroborating evidence – let alone robust and nuanced empirical country condition research – are insurmountable for many asylum seekers. NGOs, like the Center for Gender and Refugee Studies, among others, collect and disseminate such evidence but asylum seekers who lack representation may not have access to it. State Department country reports, which adjudicators routinely invoke, are often politicized and, as my work with the Clinic has shown, may be missing critical information.

It is therefore critical that we expand representation to include all asylum seekers and develop widely accessible research and expert testimony that asylum seekers, adjudicators, and advocates alike can draw upon in presenting and deciding cases.

Most important, though, is the need for adjudicators to afford asylum seekers the benefit of the doubt and to embrace fully the well-settled principle that the testimony of an asylum applicant, alone, should be enough to establish eligibility for protection.

Please consider sharing your opinion on the U.S. Government’s proposed rule to rewrite the refugee definition and cut off most asylum seekers from protection by submitting your comment to the public consultation. (Click the ‘Submit a formal comment’ button on the right-hand side.)

Advice on how to frame your comment is offered by the Harvard Immigration and Refugee Clinic and many other advocacy groupsComments close on 15 July 2020.

 


[1] These are race, religion, nationality, political opinion, or membership in a particular social group.

Harvard Negotiation & Mediation Clinical Program Podcasts

via Harvard Negotiation & Mediation Clinical Program

Hosts of HNMCP’s podcast Thanks for Listening, Neil McGaraghan and Sara del Nido Budish, continue their journey around the country, visiting people and organizations who are working to bridge political divides. In Episode 5 they speak with two participants in Hands Across the Hills, a program that brought together residents of Letcher County, KY, and Leverett, MA, after the 2016 election. Episode 6 features our incredible colleagues at the Divided Community Project, who work proactively to build strong relationships before a crisis erupts in a community. Episode 7 examines the role social media plays in exacerbating divides, and how one site has created a safe and constructive space for kids to express themselves and connect. And most recently Episode 8 focuses on the challenges, and the powerful impact, of coalition building. The work of all our guests to connect across differences feels more urgent than ever, and we look forward to sharing the final two episodes of the series with you later this summer. You can find all of the episodes wherever you find podcasts and on our website. We’d love to hear your feedback!

A milestone in LGBT rights

by Brett Milano

via Harvard Law Today

Credit: Shutterstock/Rena Schild

While calling the United States Supreme Court’s ruling this week barring discrimination based on sexual orientation and gender identity “a massive, monumental, landmark decision,” Alexander Chen ’15, the founding director of Harvard Law School’s LBGTQ+ Advocacy Clinic, also warns that the struggle for LGBT rights is not yet won.

In a 6-3 vote, the Court ruled Monday in a case called Bostock v. Clayton County that Title VII of the 1964 Civil Rights Act, which forbids job discrimination based on a person’s race, religion or sex, also covers sexual orientation and gender identity. Writing for the majority, Justice Neil Gorsuch ’91 made the textualist argument that because the Civil Rights Act protects against sex discrimination, members of either sex cannot be penalized for doing something—partnering with a man or a woman, for instance—which would be acceptable in the other.

“We must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear,” Gorsuch wrote. “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

He was joined by Chief Justice John G. Roberts Jr. ’79 and the four progressive members of the Court.

Chen says that the ruling addresses a longstanding source of discrimination for the LGBTQ community. “Even from the very beginning of the 1960s, employment protections were one of the major priorities of gay and transgender activists even back then, because it really goes to the heart of economic independence and peoples’ ability to survive in this country. Of course, it was incredibly significant that we had the decriminalization of sodomy laws, that we had the recognition of marriage equality. But this set of protections for employment, nondiscrimination, and the doctrinal impacts that are going to follow from that, I think will have a more sweeping impact on people’s lives overall.”

Alex Chen

it: Lorin GrangerHarvard Law School Lecturer on Law Alex Chen ’15 is the founding director of the Harvard Law School LGBTQ+ Advocacy Clinic that launched this January.

After the Court heard oral arguments in October, many observers thought the ruling might go the other way. “A lot of advocates were concerned about the outcome based on some of the questions that the justices asked—about bathrooms and locker room usage,” Chen says. “But the decision said, ‘these are not the issues before us’. The issue is whether you can fire or refuse to hire someone because of their gay or transgender status.”

The Bostock decision consolidates three cases, one of which had a transgender plaintiff, Aimee Stephens, who died in May. “It was also important,” Chen argues, “that the Court used the correct pronouns for Aimee Stephens, treating her gender identity as valid and legitimate.”

Being treated as equal in the eyes of the law is absolutely critical. But it is also the beginning of the fight when it comes to all these systematic aspects of inequality that we have in our country.

Alex Chen

Chen believes that the Court’s ruling effectively undoes a rule proposed by the Trump Administration last Friday, which would have restricted the definition of sex to that assigned at birth.

“They have really done just about everything possible in this administration to roll back everything the last administration did in terms of sex discrimination,” he says. “So, when you think about backlash [over the current Supreme Court decision], the backlash in many ways already came. And one thing I think is heartening is that the president and the GOP don’t seem to have that much of an appetite for continuing to demonize LBGT people. People can speculate why Chief Justice Roberts and Justice Gorsuch crossed over and made this a 6-3 decision, but it’s possible that they actually just thought this was the right call.”

“Before the decision came out, over 70 percent of Americans supported the idea of extending protection of LBGT people in the workplace,” he says. “I think there has been a massive public opinion shift on that as well. The more people come out to their friends and family, the more it undermines the idea that there’s some kind of hidden agenda. What’s been percolating is the idea that maybe LGBT people are just ordinary people.”

But Chen also warns that racial discrimination has continued more than half a century after it was legally banned by the 1964 Civil Rights Act, and says there will inevitably be battles left to fight. “One set of areas where I think you’ll see some questions is that, if we can’t discriminate based on sexual orientation or gender identity, what exactly constitutes that type of discrimination? We have a case now [Prescott vs. Rady Children’s Hospital-San Diego] involving discrimination against a teenage transgender boy in a hospital where he was repeatedly misgendered; that ended in tragic circumstances. The district court found that this did constitute gender identity discrimination, which constitutes sex discrimination under the Affordable Care Act.”

Chen predicts a wave of new litigation as employers and employees attempt to apply the ruling in the workplace. “Suppose for example that you are a transgender woman, and your job says, ‘We can’t fire you, but we’re not going to refer to you by the name that’s now your legal name, and we’re going to put you in the male uniform, and we’re going to make you use the men’s bathroom’,” he says. “I think we’re going to see these kinds of factual situations play out.”

“And if you look at what is going on in the country politically with Black Lives Matter,” Chen adds. “I think another big area of work for the LBGT movement is to work on intersectional issues, where black and brown LBGT people are more likely to experience employment discrimination, housing discrimination, healthcare discrimination and to have a lower income level than white and Asian LGBT people.”

“Being treated as equal in the eyes of the law is absolutely critical,” Chen says. “But it is also the beginning of the fight when it comes to all these systematic aspects of inequality that we have in our country.”

Harvard Law School LGBTQ+ Advocacy Clinic and NCLR Release First-of-Its-Kind Comprehensive Legal Resource for Transgender Youth

via National Center for Lesbian Rights

Today, the Harvard Law School LGBTQ+ Advocacy Clinic (HLAC) and the National Center for Lesbian Rights published a first-of-its-kind legal resource guide for transgender youth in the United States. The newly-released Trans Youth Handbook serves as a comprehensive legal resource guide that covers the rights of trans youth across a wide spectrum of situations, including identity documents, school, health care, non-affirming care environments, and work.

The Handbook was written by HLAC’s Alexander Chen and NCLR’s Asaf Orr, who served as the lead authors for the resource, and was produced with the support of volunteers from Salesforce, Baker McKenzie, and Equal Justice Works.

“Study after study shows that trans youth thrive when they are respected for who they are and affirmed in their gender identities,” said Alexander Chen, Esq., Founding Director of the Harvard Law School LGBTQ+ Advocacy Clinic. “I am delighted that this important resource will be available to trans youth and their families who are seeking to understand their legal rights.”

“The Trans Youth Handbook gathers critical information transgender youth need to understand their legal rights in an easily accessible and digestible form,” said Asaf Orr, Esq., Senior Staff Attorney and Director of NCLR’s Transgender Youth Project. “We hope the handbook will give transgender youth the tools and confidence to advocate for what they need—and are entitled to—so they can thrive. We are excited to co-author this incredible resource and look forward to updating it as our laws and society continue to recognize the unique needs of transgender youth and protect this vulnerable group from discrimination.”

“In our pro bono work, we look for ways to help with the most compelling justice challenges, particularly youth justice,” said Angela C. Vigil, Partner and Executive Director of the Pro Bono Practice at Baker McKenzie. “That is why we are so proud to support the Trans Youth Handbook project, which serves a community in critical need of legal resources. This Handbook provides the most thorough and comprehensive summary of trans youth rights across the US.”

“Equal Justice Works is proud to support the creation of the Trans Youth Handbook,” said David Stern, executive director at Equal Justice Works. “This is a critical resource to help ensure trans youth, a particularly at-risk group, and their families are aware of their legal rights. We are thankful to the Harvard Law School LGBTQ+ Advocacy Clinic, National Center for Lesbian Rights (NCLR), and the leadership of Alex Chen, 2017 Equal Justice Works Fellow, and Asaf Orr, senior staff attorney at NCLR. We’re also tremendously grateful to Salesforce.org and Baker McKenzie for sponsoring Alex’s Equal Justice Works Fellowship and for launching his public interest career.”

# # #

The Harvard Law School LGBTQ+ Advocacy Clinic (HLAC) engages in impact litigation on, policy advocacy, and direct representation on behalf of the LGBTQ+ community, with a particular focus on issues affecting underrepresented groups within the LGBTQ+ umbrella. HLAC works with community members, advocates, non-profit organizations, educators, medical professionals, and governmental entities to advance the rights of LGBTQ+ people at both the national and local levels. http://clinics.law.harvard.edu/lgbtq

The National Center for Lesbian Rights (NCLR) is a national LGBTQ legal organization the forefront of advancing the civil and human rights of the full LGBTQ community and their families through impact litigation, public policy, and public education. NCLR has been a leading advocate for the rights of transgender youth for over a decade. Through litigation and advocacy, NCLR has expanded legal protections for transgender youth in schools, sports, healthcare, and custody disputes, among many other areas. Touching on every aspect of their lives, the work of NCLR’s Transgender Youth Project is to ensure transgender youth have the support and opportunity they need to thrive. www.nclrights.org

For-Profit Colleges, Long Troubled, See Surge Amid Pandemic

By Sarah Butrymowicz and 

via The New York Times

Tyler Hutchinson, standing, dropped out of American Public University after one semester because, he said, the college never disbursed his federal financial aid. Credit: Lindsay D’Addato for The New York Times

In March, as colleges and universities shuttered campuses under a nationwide lockdown, Strayer University updated its website with a simple message: “Great things can happen at home.”

Capella University, owned by the same company as Strayer, has run ads promoting its flexibility in “uncertain times” and promising would-be transfer students that they can earn a bachelor’s degree in as little as a year.

Online for-profit colleges like these have seen an opportunity to increase enrollment during the coronavirus pandemic. Their flexible programs may be newly attractive to the many workers who have lost their jobs, to college students whose campuses are closed, and to those now seeking to change careers. The colleges’ parent companies often have substantial cash reserves that they can pump into tuition discounts and marketing at a time when public universities and nonprofit colleges are seeing their budgets disintegrate.

Few of the largest for-profit colleges operating primarily online have track records to justify the optimistic advertising pitches. Some have put students deep in debt while posting dismal graduation rates amid a history of investigations by state and federal agencies, including many that have led to substantial financial settlements.

Still, there is evidence that interest in the schools has increased.

“I hate to call anybody a winner in this crisis,” said Jeffrey M. Silber, managing director at BMO Capital Markets, a financial services company, “but I think growth will increase this fall and could continue thereafter.”

For-profit colleges have long devoted large sums to advertising, spending almost $400 per student in 2017, according to research from the Brookings Institution. For nonprofit institutions, that figure was $48, and for public colleges it was $14.

“Unfortunately, because of the financial distress a lot of not-for-profits are facing, they may have to cut back on marketing,” Mr. Silber said. “I think the for-profits may be at a competitive advantage.”

Ashford University has received so many new inquiries in recent months that it has announced plans to hire 200 additional “enrollment advisers” to field them. Another school that operates largely online, Grand Canyon University, says it has had a surge in enrollments. (Grand Canyon has nonprofit status in Arizona and with the Internal Revenue Service but is designated as a for-profit institution by the U.S. Department of Education.) Capella and Strayer have reported increases in requests for information.

The trend concerns many student-protection advocacy groups, which point out that the colleges that stand to gain are among those with the most troubling records. For the most part, the largest online for-profit universities have poor graduation rates — often no higher than 25 percent, and sometimes as low as in the single digits. Several have been accused of intentionally misleading students about potential job prospects to persuade them to enroll and often to take on tens of thousands of dollars in debt.

Eileen Connor, the legal director at the Project on Predatory Student Lending at Harvard Law School, said she was worried by the prospect of a resurgence for online, for-profit schools.

“In times of economic downturn, that’s when the for-profit colleges start to thrive,” she said. Online colleges “have a running start, especially now, when there’s an economic downturn keeping people in their homes,” she added. “That is a perfect storm for the thing that they’re trying to do.”

These schools often attract low-income, nontraditional college students who tend to have lower completion rates than those who enroll straight from high school and attend full time. Many have family pressures that interfere with study.

In recent earnings calls, many companies emphasized the quality of the education they provide. Karl McDonnell, the chief executive of Strategic Education Inc., the parent company of Capella and Strayer, told investors in March, “We’re going to continue to focus on maintaining the highest possible academic quality figuring that that’s really the best way to sort of position yourself vis-à-vis any kinds of regulatory or legislative initiatives.”

In the first quarter, Strategic Education took in $46.5 million in profit, up from $36.7 million over the same quarter last year. Its executive chairman, Robert Silberman, told investors that the company had a “fortress balance sheet with over $500 million in cash.”

Before the broad market decline last week, Strategic’s stock price had climbed steadily since early April, as had those of other publicly traded companies that own universities and college-related education services, including Grand Canyon Education Inc., Perdoceo Education Corporation and Zovio. But for many of their students, the future is precarious.

At Capella, only 11 percent of undergraduates earn a degree within eight years, according to the most recent federal statistics. At Strayer, graduation rates range from 3 percent at its Arkansas campus to a high of 27 percent in Virginia.

Fewer than a third of students at Perdoceo campuses graduate within eight years. The company’s schools were recently barred from receiving G.I. Bill money from new students after the Department of Veterans Affairs found that they had used sales and enrollment practices that were “erroneous, deceptive or misleading.”

Ashford University, owned by Zovio, had a 25 percent graduation rate, according to the most recent federal data. Those completing degrees had a median debt of $34,000 on leaving. Zovio is being sued by the California attorney general, accused of making false promises to students and using illegal debt collection practices. The company denies any wrongdoing.

For-profit schools made a similar play for students during the 2008 recession, as people searching for work in a shrinking job market sought new credentials at low cost. Enrollment at for-profit colleges climbed 24 percent at the height of the recession, according to an analysis by BMO Capital Markets.

Along with that surge came increased scrutiny. Government investigators concluded that two of the biggest for-profit operators, Corinthian Colleges Inc. and ITT Technical Institute, had mismanaged or failed to account for millions of dollars in federal financial aid. They were subsequently barred from receiving such aid, which led to their collapse. The companies were also accused of pushing students to take loans they could never expect to repay.

The Obama administration put rules in place to shut down programs whose graduates didn’t earn enough to pay back their student debt and to make it easier for students who had been defrauded to have their loans forgiven. Experts say conditions are ripe for new growth in the for-profit sector because the Trump administration has rolled back those changes.

“A lot of the pieces are in place to be right back where we were in 2008, and the regulations that had come out of lessons learned are being whittled away,” said Yan Cao, a fellow at the liberal-leaning Century Foundation who studies higher education.

The Trump administration’s Department of Education has disputed criticism of its oversight of for-profit colleges. It notes that it has expanded information on its websites to help students make informed choices.

Shawn Cooper says he was twice given the go-ahead on his dissertation project at Capella University, only to be told to start over. Credit: Caitlin O’Hara for The New York Times

Shawn Cooper, an Air Force veteran, said he was twice given approval for his dissertation project at Capella and worked on it for months, only to be told that he needed to start over with a new topic. He said he was forced to leave, despite a 4.0 grade-point average.

Mr. Cooper says he owes more than $100,000 in student loans after his time at Capella. “At the end of the day, I feel like it’s all just a facade on their end,” he said. “Get people in, take their money and get them out, usually without anything to show for it.”

A lawsuit was filed against Capella seeking class-action status for students like Mr. Cooper who say the school intentionally and needlessly prolonged their doctoral programs, costing them tens of thousands of dollars. Last year, a judge allowed three counts in the suit to continue, all regarding the time it took a “typical” student to complete programs, but dismissed most other counts, including those about how long the programs were “designed” or “structured” to take.

Strategic Education officials did not reply to requests for comment.

Angela Selden, the chief executive of American Public Education Inc., which owns American Public University and American Military University, told investors that the company has started spending part of its marketing budget originally earmarked for later this year. “The pandemic has created an unexpected opportunity,” Ms. Selden said.

Wallace Boston, the president of American Public’s two universities, said both schools offered a high-quality education. “People who are critical of the sector on a whole tend to be looking at things on the surface, and marketing is one of the things they pick on the most,” Mr. Boston said. “I don’t think that those critics are justified unless they do their homework.”

Relative to some other online-only institutions, the American Public University System is cheaper, at $6,880 a year in tuition and fees, and has higher graduation rates. Still, 22 percent of American Public University’s 36,000-plus students graduate after eight years, according to the most recent federal data.

Mr. Boston said the university allowed students to take up to a decade to complete their programs. The most recent 10-year graduation rate was 35 percent, he added.

Tyler Hutchinson, of Brigham City, Utah, enrolled at American Public University in 2017. He had three children and worked part time, so the flexibility of taking online classes offered hope a degree in environmental science that would lead to a well-paying job.

But Mr. Hutchinson, 31, dropped out after one semester because, he said, the college did not disburse his federal financial aid. The school also sent him a bill for more than $1,000 for classes the next semester that he had never signed up for, he said — a bill that has been sold to a collection agency.

Mr. Boston said the university could not provide information about a student without the student’s consent. Mr. Hutchinson gave his consent by email, but a spokesman said the university needed a formal consent filing and would have no further comment.

Having been laid off at a convenience store and with his work as a United States Census worker suspended because of the coronavirus pandemic, Mr. Hutchinson has no income.

“When they advertised, what got me was the work-life balance. And with financial aid, it was really attractive,” he said. “Even though I really enjoyed it, the financials were such a burden we just decided to discontinue.”

American Public Education Inc.’s net income of $2.4 million in the first three months of 2020 was more than double that of the same period last year, and on June 9 its stock price hit its highest closing point in a year.

Supreme Court decision shielding DACA draws relief, celebration

by Colleen Walsh

via The Harvard Gazette

Dreamers and DACA supporters rally outside of the U.S. Supreme Court. In a 5-4 vote, the court rejected the Trump administration’s push to end an Obama-era program that gives nearly 700,000 Dreamers the ability to work in the United States and avoid deportation. Bill Clark/CQ Roll Call via AP Images

In a closely watched and hotly awaited ruling, the U.S. Supreme Court narrowly rejected the Trump’s administration’s move to end a program protecting young undocumented immigrants brought to the country as children, shielding for now nearly 700,000 so-called Dreamers from deportation.

The 5-4 decision on the Deferred Action for Childhood Arrivals (DACA) program was written by Chief Justice John Roberts ’76, J.D. ’79, who sided with more-liberal justices for the second time this week in a major, high-profile case. News of the judgment was met with relief and celebration by Dreamers and supporters of immigrants’ rights across the country, as well as by DACA recipients, professors, and staff in the Harvard community.

“Congress should now turn its attention to immigration reform and provide a pathway to citizenship for these young people and others, including individuals with temporary protected status,” wrote Harvard President Larry Bacow in a letter to faculty, staff, students, and alumni. “I also hope that rather than reflexively closing our borders to immigrants, and to nonimmigrants who wish to pursue educational opportunities in America, we can once again live up to our promise as a nation that welcomes those who seek a better life for themselves and their children — people who have traditionally contributed much to the fabric and greatness of our country,”

Protecting undocumented students both on Harvard’s campus and beyond has been a priority for Bacow, who is the son of immigrants. “There are complex issues that need to be addressed, but America will be better — and stronger — for all parties coming together to find common ground on this issue. Until then, I will continue to advocate for Dreamers and for their ability to contribute to a country that has been their home since childhood,” he wrote.

Members of the community, including students and alumni who are protected under DACA praised the Court’s ruling, among them Mitchell Santos Toledo, J.D. ’20, a recent Harvard Law School graduate who arrived in Cambridge not long after President Donald Trump announced his plans in 2017 to cancel the program, which had been instituted by President Barack Obama in 2012.

“It was rough. You’re talking about moving across the country, starting this huge academic journey at a School at Harvard, and then having the only semblance of protection that you’ve known for the past five, six years sort of just yanked from underneath you,” said Toledo, whose name was listed in the documents submitted to the court in support of DACA.

Toledo called the court’s decision “a validation of the years of advocacy, by undocumented folks and our allies, on the streets and in the halls of our nation’s courts and congressional chambers.”

“This ongoing effort reflects not only the passion and dedication of the undocumented community but also the resiliency instilled in us by generations of our ancestors without which this outcome may have been different,” he said. “While this is a moment for the DACA-eligible community to take in a breath of relief, we absolutely cannot forget the bigger picture — comprehensive immigration reform benefiting all undocumented folks.”

Daniela Castro, a rising junior and sociology concentrator at the College originally from Honduras, voiced similar sentiments.

“I grew up with the fear of deportation and would have nightmares of being forced to return to a country I only experienced in scraps — of stories, photographs, and handmade bracelets sent by relatives,” said Castro, who is also the advocacy chair at Act on a Dream, a student-based group on campus that supports immigration reform. And as appreciative as she is of the protection DACA affords youth like her, Castro notes that the program “forgets about parents, forgets about people that have established roots and relations in a country that refuses to accept them and threatens to dismantle their legacies.” It also fails, she said, to further the goal of “citizenship for all undocumented people.”

Leo Garcia ’21 co-directs Act on a Dream. A native of Bogota, Colombia, he came to the U.S. at the age of 3 and grew up in Houston. Garcia received protection under DACA several years ago, but said he still lived in fear for his parents and for the millions of other undocumented immigrants living in the U.S.

Garcia called Thursday’s ruling, along with the court’s decision earlier this week protecting gay and transgendered workers’ rights, “a reminder this is a bare-minimum recognition of these communities being human and being deserving of rights. I think that these are small victories. We need to push for a more inclusive solution, a more long-term solution” that covers the millions of immigrants and provides a pathway to citizenship.

Roberto Gonzales, a professor of education at the Harvard Graduate School of Education, has helped lead a study that tracks how the administrative policy has affected the lives of hundreds of people living under its protection. Bracing for a different decision, Gonzales said he, along with a number of his Harvard colleagues, was surprised by the court’s ruling.

“The longer this decision got put off, I think that many of us really thought that it was going to go the other way. But the decisions of the last two weeks, I think, represent a small but significant, tiny change. And so I had a sliver of hope that it might go this way, and it did,” he said.

The judgment was an important win for DACA advocates, but it remains to be seen how the administration will react to it, and whether it will try to push back with an election looming and the political landscape potentially shifting, Gonzales added.

“Immigration has been Trump’s central issue from his campaign through his policymaking as president. But consistently, polls show that the American public favors immigration reform. They favor a legalization, and more so for something to be done for young people who don’t have legal status. And so I think that what perhaps we’re seeing here is pushback that is gaining momentum, a pushback against the kind of running rhetoric that’s coming out of the White House and the Trump policies.

“It will be interesting to see what advocacy looks like moving forward on this issue in the wake of the Supreme Court decision on LGBTQ, in the wake of the Black Lives Matter protests. Will we see more kinds of expansive, intersectional arguments and advocacy coming from immigrant rights groups? All of this is speculation, but I think today’s decision opens up a lot of possibilities.”

The White House did not have an immediate comment, but Trump blasted the DACA decision as well as Monday’s ruling on LGBT rights on Twitter. Calling them “horrible & politically charged decisions” he characterized them as “shotgun blasts” to Republicans and other conservatives.

Ximena Morales ’22 said that she thinks the next election will be a turning point for Dreamers. “I think November is going to be such a critical time,” she said. “I think it’ll be the deciding factor in how the future of DACA will play out.”

A rising junior, government concentrator, and co-director of Act on a Dream, Morales was born in Mexico and brought here as a toddler. She said she was always aware of her undocumented status and took pains to try to hide it from friends when she was growing up in southeastern Wisconsin. Being able to apply for DACA protection in high school changed her life, she said, and opened up important doors to work and education.

At Harvard Law School, Professor Sabrineh Ardalan broke down the decision, saying that the court found the administration hadn’t adequately explained why DACA was unlawful.

“The court says that if the administration wanted to end DACA, it would have had to engage in a much more rigorous analysis, including of the reliance interests at stake, and it didn’t provide a reasoned explanation for its decision. And so, its decision to end the program was arbitrary and capricious because it didn’t go through those steps,” said Ardalan, who directs the Immigration and Refugee Clinic at Harvard Law School, which helps hundreds of people with undocumented status through a range of programs.

Ardalan also called the ruling “hugely important for so many members of the Harvard community, for so many Americans. These are young people who are part of part of our community, who are our community, whose home is here. And this decision recognizes that.

“Ultimately, what DACA recipients need is a long-term solution on a path to citizenship. And so, my hope is that Congress can act to provide them with that, and not just DACA recipients, but also [Temporary Protected Status] holders and so many others.”

Earlier this month Bacow sent a letter to Secretary of State Mike Pompeo and Acting Secretary of Homeland Security Chad Wolf urging them to support nonimmigrant visas and their work authorizations, and reject attempts to restrict Optional Practical Training (OPT) and the STEM extension, programs that lengthen academic student visas.

Such programs offer students vital training opportunities, are critical to fields such as engineering and health care, and are essential to helping universities attract top candidates, said Bacow.

Supreme Court blocks Trump’s DACA shutdown

by Sarah Betancourt

via CommonWealth Magazine

Estefany Pineda, DACA recipient and University of Massachusetts-Boston student, during a protest with the Student Immigrant Movement.

IN A MAJOR SETBACK for President Trump, the US Supreme Court blocked the administration’s attempt to end a federal program that protects 700,000 immigrants nationwide and more than 5,600 in Massachusetts from being deported.

The 5-4 ruling allows the immigrants, who were brought to the US as children and are known as DREAMers, to maintain their legal status, at least for the time being. The decision, written by Chief Justice John Roberts, said the Trump administration’s move was “arbitrary and capricious” and failed to adhere to procedures required by administrative federal law. Roberts was joined in the decision by the court’s four liberal justices, while the four most reliable conservatives dissented.

The Deferred Action for Childhood Arrivals, or DACA, program was launched by President Obama in 2012 through executive action. It provides law-abiding beneficiaries that fit certain parameters (like being present in the US before 2007) with provisional rights like driver’s licenses, work permits, and the ability to go to college. It was rescinded by former attorney general Jeff Sessions in August 2017, who wrote at the time that the program was an “unconstitutional exercise of authority by the Executive Branch.”

But the court’s decision, upholding the rulings of three federal appeals courts, said the Trump administration failed to consider the impact of its DACA decision on those who had come to rely on the program for employment and protection from deportation.

“We address only whether the [Department of Homeland Security] complied with the procedural requirement that it provide a reasoned explanation for its action,” wrote Roberts. “Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner.”

The DACA case marks the second time the Trump administration has lost an administrative law case, the first of which involved the US Census.

Trump responded to the decision on Twitter by retweeting a screenshot of Justice Clarence Thomas’s dissent, saying, “Do you get the impression that the Supreme Court doesn’t like me?” He also attempted to turn the ruling to his political advantage, tweeting out that “we need more Justices or we will lose our 2nd. Amendment & everything else. Vote Trump 2020!”

The program’s specifications were remanded back to the Department of Homeland Security to be “considered anew,” which means, for now, the Supreme Court’s decision applies only to current DACA recipients.

Since 2017, current recipients are allowed to renew their status, which is adjudicated by the US Citizenship and Immigration Services agency on a case by case basis. No new applicants have been accepted since late 2017, and advocates said a total of 1.5 million people could be eligible or benefit from the program. For some DACA recipients who were unable to successfully renew in the past three years, issues like losing health insurance and employment had arisen, since a Social Security number is required for that.

The Department of Homeland Security and US Citizenship and Immigration Services, which adjudicates DACA renewals, did not respond to requests for comment. Ken Cuccinelli, the acting deputy secretary of Homeland Security, condemned the decision in a series of tweets, saying Obama made up “laws” on sticky notes. “We need more good justices,” he tweeted.

Sociologist Roberto Gonzalez, considered by many to be the preeminent scholar on DACA, has studied the program for its duration, surveying thousands of recipients of how the benefits have impacted their lives.

“This decision puts the ball back into the court of the Trump administration,” he said after reviewing the decision Thursday. “While I don’t suspect they will try to move on terminating it any time soon, I don’t think they will expand the program to allow for new applications. Those who have DACA will keep it for the time being. But I don’t think there will be new opportunities to acquire DACA. This would also hinge on what Congress decides to do with respect to a more permanent solution.

The day Estefany Pineda started school at the University of Massachusetts Boston in 2017, the Trump administration announced it was rescinding DACA, which she took advantage of in 2016.

Pineda came to the United States from El Salvador when she was nine after a gang threatened her and her sisters. She and her sisters left in the middle of the night, traveled for three weeks, and met her mother in the US, who had immigrated when she was three.

Pineda pays around $500 every two years to re-apply for DACA status. She has been awaiting the Supreme Court’s decision for months. “I am so happy that they chose to rule in our favor, in favor of Dreamers. I am not a crier and I immediately cried once I saw the decision,” she said.

As Pineda begins her senior year, she said a lot was at stake for her – whether she would retain access to in-state tuition and whether she could get a job after graduation.

Pamela Portocarrero came to the US when she was 10 from Peru, and had concerns over what the end of the program would mean for her; her husband, who is also a DACA recipient; and her recently born daughter, who is a US citizen.

“I’m glad this allows the program to continue, that I get the opportunity to continue to work, to live in this country, which is my home, and to remain with my family and people I care about,” she said.

Portocarrero credits the program for allowing her to be able to finish her bachelor’s degree in political science and international relations at the University of Utah in 2014. It took her seven years to get her degree, juggling work and school. Once she obtained a Social Security number, she was able to get a more secure job and finish her last few semesters all at once.

She moved to Boston with her family in 2018 and said being a DACA recipient allows her to keep her job working at a local university.

Carol Rose, executive director of the American Civil Liberties Union of Massachusetts, commended the court and said “President Trump and his administration’s decision to abandon the DACA program was a political one, not a legal one.”

Attorney General Maura Healey joined one of several lawsuits defending the program, which was later consolidated into a single case resulting in today’s decision. Healey released a statement on Thursday with Oregon Attorney General Ellen Rosenblum, who co-chairs the Democratic Attorneys General Association with her, calling the ruling a “win for democracy.”

Healey said Massachusetts is home to more than 1 million immigrants, including nearly 20,000 DACA-eligible residents, most of whom haven’t had to apply for the program since it was shutdown.

“Given the tough questions asked at oral argument, it wasn’t at all clear which way the court would come out,” said Sabrineh Ardalan, director of the Harvard Immigration and Refugee Clinical program, which provides legal help to immigrants. “This is such a critically important victory and recognition that the Trump administration’s efforts to end DACA were unlawful.”

Pineda agreed with Ardalan, saying that while the Supreme Court decision is a big win, she is hoping for more. “We have no path to citizenship as DACA recipients, so we are stuck,” she said.

Congress also has the DREAM and Promise Act to consider, which would create a pathway to citizenship for the hundreds of thousands of young immigrants living their lives in two-year increments.

Portocarrero said she is hopeful Congress will act. Otherwise, she said, her life in the US continues to have “an expiration date, and living like that is always worrisome.”

Decarceration and Community: COVID-19 and Beyond (Part I)

via Radcliffe Institute for Advanced Study 

Part I of this discussion series, cosponsored with the Charles Hamilton Houston Institute for Race and Justice, focuses on people who are incarcerated and their families, exploring how systemic racism and mass criminalization threaten both incarcerated individuals and their communities. The participants consider how recent events, including the COVID-19 crisis and the police murder of George Floyd, highlight and magnify historical inequities—with deadly results.

The panelists work directly with people affected by incarceration, including several who focus on the all-too-often neglected plight of incarcerated women and their families.

SPEAKERS:
Gina Clayton-Johnson, executive director and founder, Essie Justice Group

Soffiyah Elijah, executive director, Alliance of Families for Justice

Andrea James, founder, Families for Justice as Healing; executive director, National Council for Incarcerated and Formerly Incarcerated Women and Girls

Zach Norris, executive director, Ella Baker Center for Human Rights

Moderated by Dehlia Umunna, clinical professor of law and faculty deputy director of the Criminal Justice Institute, Harvard Law School

Registration for Part II can be found here on the Radcliffe Institute website.

A semester with the Civil Rights Division

by Melanie Fontes J.D.’20

 

Melanie Fontes J.D.20

 

I was fortunate to work at the Civil Rights Division (CRD) of the Massachusetts Attorney General’s Office during the spring semester of my 3L year. I chose to focus my law school work on civil rights lawyering, and this placement offered me the opportunity to understand the role of state actors in this effort. CRD did not disappoint. During my three months at CRD, I worked alongside lawyers enforcing state and federal laws to combat discrimination in everything from housing to education to immigration. I leave law school with a greater appreciation for public service at the state government level.

 

Over the course of the semester, I supported both the investigative work and the litigation in which CRD is engaged. While much of law school focuses on the appellate process, my time at CRD centered on the work that precedes litigation and the early stages of trial work. I was able to interview Commonwealth residents whose children have been bullied in school and whose employers have unfairly denied them medical leave. I practiced compiling supporting documents by writing drafts of complaints and witness affidavits. I learned how to connect people with resources like non-profit groups to help them get the fastest and most effective legal relief. CRD taught me that litigation is not always the answer and that other forms of dispute resolution are necessary for civil rights lawyering.

 

My time at CRD also provided me with the opportunity to build my legal research and writing skills. I witnessed collaboration with the U.S. Attorney’s Office and the Consumer Protection Division as CRD pursued a case against an individual engaged in notario fraud. I researched various causes of action in Section 8 housing discrimination and banking practices to understand the viability of escalating investigations to litigation. I even had the chance to work with the legal librarians to conduct legislative history research to defend against First Amendment challenges.

 

Perhaps most importantly, I am deeply grateful that I was able to support the Commonwealth’s efforts to support residents in the COVID-19 crisis. Although we worked remotely for the second half of the semester, I saw how attorneys and staff quickly shifted attention to supporting hundreds of people facing housing and employment insecurity. It was inspiring to participate as CRD extended itself to support the many people writing into the Attorney General’s Office while simultaneously fighting back against the federal government and corporations’ attempts to infringe on civil rights. I look forward to seeing how else CRD supports the Commonwealth through this pandemic and economic crisis.

 

 

 

 

 

My Time in the Employment Law Clinic

by Jared Odessky J.D.’20

 

Jared Odessky J.D.’20

 

I came to law school dedicated to pursuing a career in workers’ rights. As a 2L, I was lucky to find a welcome home in the Employment Law Clinic. My placement was at Greater Boston Legal Services (GBLS), which provides free civil legal assistance to low-income clients in the greater Boston area. GBLS is a unique setting for legal practice. Unlike many civil legal aid organizations, it does not accept federal Legal Services Corporation funding. LSC funding imposes significant barriers for legal aid organizations, barring them in many cases from representing undocumented workers, filing class actions, or lobbying. GBLS made the decision to relinquish funding in 1996, restraining its budget but freeing its attorneys to advocate broadly for working people.

 

In my work at GBLS, I saw the rewards of that difficult decision when I was able to assist with a precedent-setting class action case. In October 2018, the Supreme Judicial Court of Massachusetts solicited amicus briefs on the question of “whether a plaintiff alleging a violation of the Wage Act and regulations promulgated thereunder may bring a class action without satisfying the requirements of Mass. R. Civ. P. 23, as amended, 471 Mass. 1491 (2015), where G. L. c. 151, § 20, and G. L. c. 149, § 150, expressly provide that an aggrieved employee may bring an action ‘on his own behalf, or for himself and for others similarly situated.’” In other words, the Court was to decide whether workers could file a class action challenging their employer’s wage-and-hour violations even if they did not meet the high bar for certification set by Rule 23. My assignment was to draft the section of GBLS’s brief arguing that the Wage Act established a separate and lower requirement.

 

The issue may seem picayune, but it had tremendous implications. For low-wage workers, class actions are often necessary to outweigh the monetary, information, and retaliation costs involved in filing a lawsuit. Since low-wage workers are also more likely to work in small and medium-sized workplaces or for larger employers who have subcontracted their work to small firms, Rule 23’s numerosity requirement significantly constrains the ability to file a class action. Absent a lower bar, many workers would be unable to vindicate their rights.

 

Researching and writing the brief was an incredible learning experience. For one, it served as an important reminder that the law’s procedural components are equally as critical to its operation as its substantive rights and protections. It was also useful training for how to write a cohesive and consistent legal work product in collaboration with others, since my portion would be part of a larger brief. While I also provided direct representation to clients during my placement at GBLS, the brief-writing experience showed me how time spent on other types of advocacy, such as amicus writing and policy work, could form part of a broader strategy to benefit our clients down the road.

 

Unfortunately, in April 2019, the Supreme Judicial Court ruled against our position, establishing that class action claims brought under the Wage Act are subject to the Rule 23 standard. But there was still reason to celebrate. The Court also reversed the trial court’s order denying class certification in the case, reviving the class action despite our inability to win a lower standard. I was proud to play a small part in fighting for workers to win their hard-earned pay and am grateful to the Employment Law Clinic for such an enriching experience.

HLS Advocates Co-Presidents Reflect on 2019-2020

via HRP Blog

by Emma Broches J.D.’20 and Samantha Lint J.D.’20

Emma Broches (left) and Samantha Lint (right) are 2019-2020 co-presidents of HLS Advocates for Human Rights.

On March 9, 2020, HLS Advocates for Human Rights hosted a discussion on the oppression of Uyghurs in Xinjiang China. As murmurs about classes moving online circulated, and US leadership continued to doubt the threat of COVID-19, we held what turned out to be our final Advocates lunch talk of the year.

If we had known this would be our final “big event”, it might have felt bittersweet. As Co-Presidents, Advocates has been the most significant part of our 3L year and our entire HLS experience. Since we joined the organization in our first year, it has served as a place of refuge, community, inspiration, and learning. That week, as information about the law school’s operations changed each day, we focused on the task at hand. We felt proud to have played a role in facilitating such a critical discussion. One of the speakers Rayhan Asat LLM’16, has now shared her story beyond HLS as well.

Although the spring semester changed substantially in March, this event, fortunately, was just one of many of Advocates’ accomplishments. With over 70 members supporting 11 projects with NGOs around the world; seven events; four trainings; and a special anniversary project, Advocates had a productive — even if abbreviated — year!

We revamped Advocates trainings, starting with adding sessions on Human Rights 101 and an introduction to conducting international legal research. These trainings provided greater support and capacity building to members, in addition to creating new opportunities for interactions between project members, supervising partners, the HLS librarians, and HRP faculty.

In honor of our 15th anniversary as a student practice organization (SPO), we also worked to connect with Advocates alums and build our community beyond current JDs and LLMs. As part of this effort, current Advocates members conducted interviews with former members, who shared how the skills, experiences, and communities they developed through Advocates has served them beyond graduation (and how much they miss their Advocates community!).

Of course, most of our energy went to our projects. Advocates worked with the International Criminal Court, the Lawyers’ Committee for Civil Rights Under Law, and UN Independent Expert Victor Madrigal-Borloz, among others. One team culminated a three-year partnership by producing a handbook that uses case studies to recommend the best practices for selecting, preparing, and shaping the impact of strategic litigation against corporations. This handbook will provide insights for practitioners in all contexts where corporate actors are involved in human rights abuses. And as some projects came to an end, other projects are just beginning. Advocates took up three new partnerships this year based on issues that students brought to our attention and relationships with organizations that they cultivated on their own.

Finally, Advocates welcomed Beatrice Lindstrom, our first-ever supervising attorney. Beatrice increased our capacity and ability to serve our partner organizations and the HLS community by acting as a mentor, advisor, and sounding board for us as Co-Presidents, and the rest of the board.

What made our experience with Advocates so special, though, were the relationships. The hours spent at meetings with our dedicated Board, calls with partner orgs across the globe squeezed in between classes, drop-ins with the endlessly supportive Clinical staff (which never lasted “just a sec”), grabbing a drink with tireless project members, and dreaming up our futures working to address the human rights issues we are so passionate about, are what made this year and each year of law school fulfilling and fun. We are grateful for the opportunity to be a part of Advocates and are thrilled to pass the baton to the new leaders and amazing students that form this group.

Amid Pandemic, New Research Provides a Roadmap to Fight Hunger and Climate Change through Increased Food Donation

via Globe Newswire

Today, the Harvard Law School Food Law and Policy Clinic (FLPC) released a first-of-its-kind interactive resource to inspire long-term policy solutions to food waste, hunger, and climate change: The Global Food Donation Policy Atlas. In partnership with The Global FoodBanking Network (GFN), and with the support of the Walmart Foundation,  The Global Food Donation Policy Atlas maps the laws and policies affecting food donation around the globe and provides recommendations to prevent unnecessary food waste and improve food distribution to those in need. The research released today focuses on Argentina, Canada, India, Mexico, and the United States, the first five of 15 countries participating in this project.

While hunger everywhere is on the rise due to the impacts of COVID-19,  one-third of all food produced for human consumption goes to waste, according to the Food and Agriculture Organization of the United Nations (FAO). There has long been a need for countries to bridge the gap between surplus food and the growing need for food for the most vulnerable; the pandemic has profoundly exacerbated that need. The Global Food Donation Policy Atlas provides guidance so food system actors will be more likely to distribute safe, surplus food to food insecure populations, instead of sending it to the landfill.

The Global Food Donation Policy Atlas looks at six main barriers to food recovery: food safety for donations, date labeling, liability protection for food donations, tax incentives and barriers, government grants and funding, and food waste penalties or donation requirements. It identifies several opportunities for governments to prevent unnecessary waste and to promote food donation. Examples of policy recommendations that apply across several countries include:

  • Clarify national food safety guidance as to the rules that apply to donated products;
  • Establish clear, federal guidelines for dual-date labeling, featuring expiration dates to convey when food is no longer safe to eat or “best by” dates for food that may safely be consumed and donated once the date has passed;
  • Offer liability protection to food donors and food recovery organizations that act in good faith; and
  • Remove tax barriers and provide incentives so it is less expensive to donate food than it is to dispose of it.

“It’s more important than ever for policymakers, government agencies, food donors, companies, food banks, and the public to understand the impact of unnecessary food waste in their countries and the need to change it,” said Emily Broad Leib, Faculty Director at FLPC and Clinical Professor of Law at Harvard Law School. “The Global Food Donation Policy Atlas is the first research study to compare food donation policies and best practices across the world, providing us with the global perspective we need to address this complex issue,” Broad Leib concluded.

Food banks worldwide depend largely on product donations to provide food to those facing hunger. Due to the COVID-19 pandemic, many food banks are seeing increases in demand for service. Through a combination of research and on-the-ground field work with food bank staff, food industry professionals, government officials, and food recovery organizations, FLPC researchers developed accessible country-specific legal guides and policy recommendations to outline best practices and long-term solutions for increased food donations.

“The COVID-19 pandemic is unlike any situation we have ever experienced before. Food bank organizations in our network are struggling to meet demand and get food to those who need it most,” said Lisa Moon, President and CEO of GFN. “The release of this project is extremely timely as it provides a roadmap for organizations and shines a light on global food system challenges for policymakers.”

FLPC will release similar reports for ten additional countries in the coming year: Chile, Colombia, Costa Rica, Dominican Republic, France, Guatemala, Peru, Singapore, South Africa, and the United Kingdom.

“Walmart Foundation has a long-standing commitment to increasing access to healthier foods in communities around the world and we are pleased to support the Global Food Donation Policy Atlas, because of its potential to accelerate effective and sustainable solutions,” said Eileen Hyde, Director of Sustainable Food Systems and Food Access for Walmart.org. “This project provides not only groundbreaking research to address the complexity of public policy relating to food donations, but it also presents clear opportunities to improve how surplus food gets to communities that need it.”

Legal guides, policy recommendations, executive summaries, and an interactive map to compare food donation laws and policies across countries are available at atlas.foodbanking.org/.

###

ABOUT THE HARVARD FOOD LAW AND POLICY CLINIC

The Harvard Law School Food Law and Policy Clinic (FLPC) serves partner organizations and communities by providing guidance on cutting-edge food system issues, while engaging law students in the practice of food law and policy. FLPC’s work focuses on increasing access to healthy foods, supporting sustainable production and regional food systems, promoting community-led food system change,  and reducing waste of healthy, wholesome food. FLPC is committed to advancing a cross-sector, multi-disciplinary and inclusive approach to its work, building partnerships with academic institutions, government agencies, private sector actors, and civil society with expertise in public health, the environment, and the economy. For more information, visit http://www.chlpi.org/flpc/.

ABOUT THE GLOBAL FOODBANKING NETWORK
The Global FoodBanking Network (GFN) is an international non-profit organization that nourishes the world’s hungry through uniting and advancing food banks in 40+ countries. GFN focuses on combating hunger and preventing food waste by providing expertise, directing resources, sharing knowledge, and developing connections that increase efficiency, ensure food safety, and reach more people facing hunger. Last year, 943 GFN member food banks rescued over 500 million kilograms of food and grocery products and redirected it to feed 9.6 million people through a network of more than 55,000 social service and community-based organizations. For more information, please visit www.foodbanking.org.

ABOUT THE WALMART FOUNDATION

By using our strengths to help others, Walmart and the Walmart Foundation create opportunities for people to live better every day. Walmart has stores in 28 countries, employing more than 2.3 million associates and doing business with thousands of suppliers who, in turn, employ millions of people. Walmart and the Walmart Foundation are helping people live better by accelerating upward job mobility for the retail workforce; addressing hunger and making healthier, more sustainably-grown food a reality; and building strong communities where we operate. We are not only working to tackle key social issues, but we are also collaborating with others to inspire solutions for long-lasting systemic change. To learn more about Walmart’s giving, visit giving.walmart.com.

From the 49ers, to the Dolphins, to the Big 12 Conference

by Chase Brownford J.D.’20

Chase Brownford (left) with Professor Peter Carfagna

As a prospective student, one of the biggest draws of HLS was its robust clinical program. My experience as a student in the Sports Law Clinic has undoubtedly proven to be the highlight of my law school experience.

After my 1L year, I thought I wanted to be a litigator, and my internships that summer reflected this. While my 1L summer was an overwhelmingly positive experience, I knew I wanted to try out the transactional side of legal practice prior to my 2L summer at a law firm. I registered for both of Professor Carfagna’s Sports Law classes during the Fall semester and quickly realized how invaluable the contract drafting skills covered were not only to sports law, but to any type of transactional practice.

Wanting to get exposure to this type of work in an in-house environment (and, admittedly, escape the Cambridge winter), I spent the 2019 Winter Term with the San Francisco 49ers. Working in the shadow of Levi’s Stadium, I was able to assist in drafting sponsorship agreements for the team and the 49ers Foundation, review vendor agreements, and was able to witness the 2019 College Football Playoff National Championship Game, which the Stadium hosted. My supervisor in San Francisco, Jihad Beauchman (HLS ’09), also had taken Professor Carfagna’s courses, had participated in the Sports Law Clinic, and had spent several years as an associate at a law firm before transitioning to his present role. Jihad’s guidance on the remainder of my time at HLS, life as an associate, and drafting advice was extremely insightful and helped me prepare for my upcoming summer. I left San Francisco with the strong conviction that this was the type of work I wanted to do for the rest of my career.

I hoped to spend the 2020 Winter Term with another clinical placement at an NFL team and was fortunate to be placed with the Miami Dolphins at Hard Rock Stadium. The timing of my placement was unique in that preparations for Super Bowl LIV were well underway when I arrived and continued throughout the three weeks I was in South Florida. The breadth of projects that my supervisors Myles Pistorius and Brandon Briggs provided in three weeks rivaled that of my experiences at full summer internships. In addition to honing my drafting skills relating to the Dolphins, Super Bowl, and Miami Open tennis tournament, I was able to complete various projects working with members of the Youth Programs, Ticketing, and IT departments.

When the opportunity arose to spend my final semester at HLS with a third clinical placement, I jumped at the chance to intern at the Big 12 Conference under the supervision of another one of Professor Carfagna’s former students—Kelvin Smith (HLS ’11). The Big 12 placement involved legal research and memo-writing on a variety of novel issues facing the Conference, the NCAA, and student-athletes, in addition to contract drafting and review. When the coronavirus pandemic upended the sports world in March, I was especially grateful for Kelvin’s willingness to continue to provide me with projects, with an increased focus on the legal and policy implications that the virus has and will continue to create.

Overall, I am confident that my time in the Sports Law Clinical Program will be one of the most meaningful and impactful experiences of my legal career. Words cannot fully express the gratitude I have for my supervisors’ mentorship and guidance at each of my placements, the faith and confidence Professor Carfagna has placed in me from the beginning, and the members of OCP that have made all of this possible.

Judicial Process Clinic Students Assist Judges with COVID-19 Issues as Courts Struggle to do Justice

by Hon. John C. Cratsley (Ret.)

Gaia Mattiace J.D.’21

As 24 students in the Judicial Process in Trial Courts Clinic switched to remote work, several found themselves directly engaged with COVID-19 issues. Three students working in the U.S District Court participated by teleconference and did legal research as their judges heard arguments for conditional release of prisoners and ICE detainees due to the threat of illness in their places of confinement.

 

“One of the clinic’s themes or focuses was on innovative ways in which the judiciary has dealt with novel legal problems,” said Gaia Mattiace J.D.’21, one of the three students to conduct work regarding compassionate release. “It was definitely interesting to see how those innovations translated from routine or more pervasive problems to an emergency situation such as this one. More generally, all of the skills that the clinic helped us develop—from honing our legal research and writing and learning good lawyering, to understanding the intricacies of judicial decision making—are crucial to providing legal assistance during this time, or a crisis situation such as this one.”

 

Alex Kontopoulos J.D.’20 spent hours of research and drafted a memo on the question of whether remote hearings, by phone or video, adversely impacted a criminal defendant’s right to be present at all stages of trial proceedings. He noted that the biggest adaptations he and the clinic made were shifts towards pandemic related work and relying on phone and email communication.

 

“I enjoyed the opportunity to provide urgent legal services during the pandemic. I had the opportunity to write draft opinions earlier in the semester, so my clinical experience had prepared me to work on an issue with such a tangible impact on people’s rights” he said.

 

A third clinic student tackled the timely question of whether in the coronavirus pandemic Lyft drivers, usually classified by the company as independent contractors, would likely suffer irreparable harm for purposes of unemployment eligibility without a preliminary injunction enjoining Lyft from classifying them as such.

 

While video and teleconferencing have become common practice in the Massachusetts trial courts, clinic students finished the semester providing their judges with needed legal research and writing not only on these COVID-19 issues but also on the usual variety of pending civil and criminal matters awaiting decisions.

 

Q&A with Olivia Barket

by Grace Yuh

Every semester, students at the Child Advocacy Clinic work with organizations serving children as a part of their clinical fieldwork. The Office of Clinical and Pro Bono Programs spoke with Olivia Barket J.D.’20 on her experience with her placement at the Juvenile Unit of the Suffolk County District Attorney’s Office.

OCP: Why did you choose to join the Child Advocacy Clinic?

OB: It was never a matter of if I joined the Child Advocacy Clinic, but when. I have worked with foster youth since I was an undergraduate and a large part of the reason I applied to law school was to be an advocate for children.

OCP: What would you say was the most fulfilling part of your experience?

OB: The opportunity to view the juvenile justice system with a critical lens.  I appreciate being challenged by my peers and the Child Advocacy Clinic created a safe space to talk through the enormous challenges facing many children across the United States.

OCP: Was there anything surprising or unexpected?

OB: I’m not sure if it was totally surprising, but it was enlightening to begin to understand the vast complexity of juvenile cases. It is easy to have our own preconceived notions of how the system should be working, but it is challenging to realize that there is no one-size-fits-all approach to juvenile justice.  There is no one idea that encompasses “the best interest of the child”.  Attorneys are often forced to piecemeal solutions – from finding housing for a juvenile, to attending education planning meetings, finding mentoring programs for youth – activities commonly thought to be outside the legal system.

OCP: What is the most important skill you learned or worked on at the Child Advocacy Clinic ?

OB: How to use my voice – both in and out of the courtroom. I began to trust my judgment and gained confidence in presenting my ideas to my supervising attorney and ultimately, the judge.

OCP: Has there been a particularly memorable moment for you while at the Child Advocacy Clinic?  If so, did it have an impact on you, your clinical experience, or how you think about practicing law beyond law school?

OB: Yes – unfortunately, it was a particularly sad moment. I was in court one morning and a case was called involving a female in her early teens. There were a medley of issues at play in this case, but ultimately the juvenile was detained – not because the prosecutor or defense attorney wanted her held in custody, but because there was no place else for her to go. This outcome was absolutely devastating to me. It would be almost 7 weeks until an appropriate placement was found.

OCP: What inspires you to do this work?

OB: I was raised by a single mother who worked almost every moment of the day to support me. By all accounts, I was fortunate. I had my mom, and a community of neighbors, teachers, and friends who filled in when my mom couldn’t be present. By the time I was in high school, I recognized that this support system my mom and I had created was unusual. Many children in similar situations to mine growing up are in desperate need of this type of community. I want to help youth create the future they have never thought possible – the one of their dreams.

OCP: What is something you would like to share with future HLS students who are interested in joining the Child Advocacy Clinic?

OB: No matter the clinical experience you choose, your eyes will be opened to new possibilities and to injustices you weren’t aware of. Be open to changing your path. Explore what you don’t understand or haven’t experienced. Ask questions. The Child Advocacy Clinic is a great way to start exploring all of the avenues your legal career could take.

Sejal Singh wins the 2020 David Grossman Exemplary Clinical Student Award

via Harvard Law Today

by Grace Yuh

Sejal Singh ’20 is the 2020 recipient of the David Grossman Exemplary Clinical Student Award. She was recognized for her work on the Project on Predatory Student Lending with the Predatory Lending and Consumer Protection Clinic at the WilmerHale Legal Services Center, as well as her exemplary contributions to public-interest endeavors at Harvard Law School.

Named in honor of David Grossman ’88, the award reflects the dedication of the late HLS clinical professor in addressing the legal needs of low-income communities. Each year, a student is recognized for their advocacy in important issue areas, for providing excellent legal services through client representation, and striving for crucial policy reform. In addition, the student is recognized for demonstrated thoughtfulness and compassion in their work as they put theory into practice.

Singh’s belief that education is a fundamental right and her passion for making sure that every student has the opportunity to learn is what inspired her, she says, to attend law school and join the Project on Predatory Student Lending. At the project, Singh represented student loan borrowers who have experienced predatory lending in connection with for-profit schools. In remote collaboration with Office of the Attorney General of Maryland, she helped to write an application to the federal government to discharge the debt of thousands of affected students. Chris Madaio, an assistant attorney general in the Consumer Protection Division who leads Maryland’s work on for-profit schools, praised Singh’s commitment and the character of her work.

“The strong quality of Sejal’s work product far exceeded her experience and was something I would have expected from a seasoned attorney who had been practicing for years,” he said. “Her research and factual analysis was a benefit to my office and to the people of Maryland.”

Additionally, Singh fostered a strong sense of innovation and partnership within her team and those around her through her creativity and deep understanding of the power of grassroots organizing.

“Sejal embodies David Grossman’s indefatigable drive toward a fair legal system and his compassion toward the individuals affected by its current injustices” said Toby Merrill ’11, director of the Project on Predatory Student Lending. “At every stage, she brought great ideas about the substance of the claims and the organization of the materials, as well as energy and outrage at the mistreatment of the students.”

Outside her clinical work, Singh is a co-founder of the People’s Parity Project,  described on its website as a “nationwide network of law students and new attorneys organizing to unrig the legal system and build a justice system that values people over profits.” Through the project, she and other HLS students have challenged the use of forced arbitration clauses in law firm employment contracts as they inhibit the enforcement of vital consumer and worker’s rights. Singh has traveled to Washington, D.C., to attend congressional hearings and has worked with other leading advocates on these issues. For this work, Paul Bland ’86, director of Public Justice, called Singh “a powerful and edgy voice for a fairer justice system.”

In the face of the COVID-19 pandemic, Singh has led the PPP in organizing law students to support public-interest lawyers who are serving those most directly effected by the pandemic. This has involved matching students to lawyers, working with the Harvard Labor & Worklife Program to release a 50-state survey of unemployment programs and building state-wide hotlines.

While at HLS, Singh participated in the Health Law and Policy Clinic and the HLS Immigration Project. She was also co-editor-in-chief of the Harvard Civil Rights-Civil Liberties Law Review and a research assistant for the Clean Slate Project. She spent her 1L summer  with Legal Aid at Work and her 2L summer at the New York Civil Liberties Union.

After graduation, Singh will join Public Citizen Litigation Group as a Justice Catalyst Fellow, where she plans to focus on addressing corporate capture of agencies, building worker power, and fighting for a just recovery to the COVID-19 pandemic.

“It would be an understatement to say she will change the world—she already has,” said Merrill.

Jeremy Ravinsky receives 2020 Andrew L. Kaufman Pro Bono Award

via Harvard Law Today

by Grace Yuh

Credit: Courtesy of Jeremy Ravinsky

Jeremy Ravinsky ’20 was awarded this year’s Andrew L. Kaufman Pro Bono Award. He was recognized for his work and leadership at the Harvard Legal Aid Bureau and his commitment to providing more than 2,000 hours of pro bono services with the Tenant Advocacy Project and Project No One Leaves.

Named in honor of Professor Andrew Kaufman ’54, who has been instrumental in creating and supporting the Pro Bono Service Program at HLS, the award is granted to a graduating J.D. student who exemplifies a pro bono public spirit and an extraordinary commitment to improving and delivering high-quality volunteer legal services to disadvantaged communities.

After graduating from Tufts University in 2014, Ravinsky worked at Open Society Foundations in Washington, D.C., where he focused on human rights issues. During his time there, he also participated in grant making for homelessness issues, which, he says, helped clarify his interest in housing justice. During his 1L year, he joined TAP, a student practice organization, where he represented tenants at risk of losing their public or subsidized housing. Seeking an immersive experience where he could create longer-standing relationships with clients, as well as one where he could support movements led by marginalized communities, Ravinsky joined HLAB in the Fall of his 2L year and has worked there every semester since.

While at HLAB, Ravinsky was assigned to its Family Practice, where he worked on a variety of cases, including divorces, complex equity-based cases, and custody matters. He conducted legal research, drafted pleadings, prepared for and conducted Probate and Family Court hearings and trials, and demonstrated his ability to connect with others by communicating effectively with his clients as well as opposing counsel.

He also contributed to and built connections with fellow students, supervisors, and organizers in HLAB’s other practice areas, including housing law, employment law, and government benefits law. He wrote a summary judgement motion and supporting brief in a federal district court case challenging an agency decision, and has worked on landlord/tenant cases. The faculty and staff at HLAB called him “a quiet powerhouse who leaves each project, each challenge, and each conversation better for his having been a part of it.”

“Jeremy exemplifies the pro bono spirit in his commitment to excellent work that raises up and is guided by the needs of the impacted community. His service to individual clients and to organizations in low-income communities of color exemplifies the positive impact that HLS students can have through its clinical programs,” said Stephanie Goldenhersh, senior clinical instructor and assistant director for HLAB’s Family Practice.

Ravinsky’s dedication to community lawyering and his collaborative work with community partners, particularly in housing advocacy, have also been hallmarks of his time at HLS.

At HLAB, Ravinsky led the HLAB Community Lawyering Task Force from Spring 2019 to March 2020, fostering conversation on how to better support existing community initiatives. Since his 2L year, Ravinsky has been a member of Project No One Leaves, which supports and defends local Boston-area communities facing gentrification, eviction, and foreclosure. He has also regularly attended meetings at the project’s partnering organization City Life/Vida Urbana to offer direct legal advice regarding housing issues.

During his time at the Tenant Advocacy Project, Ravinsky also served as a member of its Intake Review Committee, as a training director, and finally as co-president during his final year of law school. Shelley Baron, a clinical instructor at TAP, praised Ravinsky’s determination to be directly involved with the communities where his clients live and work.

“Jeremy’s dedication to TAP, his clients, and social justice lawyering more broadly has been relentless and inspiring for me as a clinical instructor,” said Baron. “You can find him advocating for a client in probate court in the morning, meeting with me to discuss TAP program management in the afternoon, and at a CLVU tenant organizing meeting in the evening. He approaches his case work with humility, always open to feedback and growth opportunities” she said.

Ravinsky spent his summers during law school working at Community Legal Services of Philadelphia and Brooklyn Defender Services where he will work after graduation. He plans to continue to find ways to provide legal services to lift up the voices of those experiencing oppression.

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