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Category: Op-Ed

The covid-19 crisis is going to get much worse when it hits rural areas

The recently closed Pickens County Medical Center in Carrollton, Ala., on March 26.

The recently closed Pickens County Medical Center in Carrollton, Ala., on March 26. (Jay Reeves/AP)

Michelle A. Williams is dean of the Harvard T.H. Chan School of Public Health. Bizu Gelaye is an assistant professor at Harvard and Massachusetts General Hospital. Emily M. Broad Leib is a law professor, director of the Harvard Law School Food Law and Policy Clinic and deputy director of the Harvard Law School Center for Health Law and Policy Innovation.

 

Over the past few weeks, our urban centers have scrambled to mobilize in response to the mounting covid-19 cases. But be forewarned: It’s only a matter of time before the virus attacks small, often forgotten towns and rural counties. And that’s where this disease will hit hardest.

 

Covid-19 is infiltrating more of the country with each passing day. Colorado, Utah and Idaho are grappling with sudden clusters in counties popular with out-of-state tourists. Cases are also skyrocketing in Southern states such as Georgia, Florida and Louisiana. So far, sparsely populated communities have been better insulated from the spread. But since no place in the United States is truly isolated, there’s simply no outrunning this virus. Every community is at imminent risk.

 

Rural communities could fare far worse than their urban and suburban counterparts. Rural populations are older on average, with more than 20 percent above the age of 65. Rural populations also tend to have poorer overall health, suffering from higher rates of chronic illnesses such as heart disease, diabetes and lung conditions, all of which put them at greater risk of becoming severely ill — or even dying — should they become infected.

 

Rural areas also already suffer from a rural mortality penalty, with a disparity in mortality rates between urban and rural areas that has been climbing since the 1980s. Chronic financial strain and the erosion of opportunity have contributed to “deaths of despair” as well as a rise in conditions such as heart disease, Type 2 diabetes and stroke. Add in prolonged social distancing and the economic downturn, and these trends will surely worsen.

 

Long before the novel coronavirus emerged as a threat, America’s rural hospitals were already in dire financial straits. About 1 in 4 are vulnerable to being shuttered, with 120 having closed in the past decade. With the pandemic looming, many of these health systems have been forced to cancel elective procedures and non-urgent services such as physical therapy and lab tests, which in some cases account for half of their revenue. As cash flow wanes, the American Hospital Association warns that even more hospitals could be forced to shut their doors exactly when patients need them most.

Rural counties have just 5,600 intensive care beds total, compared with more than 50,000 in urban counties. In fact, half of U.S. counties do not have any ICU beds at all. And even if these counties are somehow able to scale up their infrastructure, experts are afraid there will not be enough health-care workers to staff them. The time to prepare rural America is now. Fortunately, rural health systems will get some relief from the stimulus bill, which allocated $100 billion to health-care providers. But it is critical that we find additional ways to alleviate the burden on these health systems to the greatest extent possible.

 

One way to do that is by expanding telemedicine capabilities, which will allow millions of Americans to be seen by care providers even if there’s no room for them in hospitals. The Centers for Medicare & Medicaid Services recently issued guidelines that expand access to telemedicine for Americans on Medicare. That directive now includes federally qualified health centers, rural health clinics and hospices, so they, too, can be reimbursed for serving patients remotely.

 

Of course, telemedicine is far from a panacea, as broadband access remains limited in so much of rural America. The stimulus included an additional $100 million for rural broadband access, but this will not be enough. In the long term, policymakers must continue to close the “digital divide,” recognizing that Internet access is both an economic and health necessity. In the short term, Internet service providers should consider rolling out mobile Internet units and providing WiFi hotspot access to temporarily increase connectivity.

More importantly, we must expand the social safety net, especially the Supplemental Nutrition Assistance Program, child nutrition programs, Supplemental Security Income, housing assistance and Medicaid. Lawmakers must also ensure the availability of these programs to rural residents. For example, unlike their urban counterparts, many rural children cannot come to schools each day to pick up meals. The Agriculture Department launched a pilot program to deliver meals to rural children in some regions, but initiatives such as this should be more widespread.

 

It is clear the battle against covid-19 will look vastly different in the heartland than in our cities. The U.S. Navy won’t be docking a floating hospital in Nuckolls County, Neb. But if what’s happened in America’s coastal cities can teach us anything, it’s that the coming weeks will determine the trajectory of this virus. And we don’t have a moment to waste.

Clinical Students Set a New Record of Over 1900 Hours of Legal Research and Writing for Massachusetts Trial Judges

By: Honorable John Cratsley (Ret.), Director of the Judicial Process in Trial Courts Clinic and Class

Students in the Spring 2019 Judicial Process in Trial Court Clinic Credit: Jean Lee JD ’19

Over the 2019 Spring semester, 20 students in the Judicial Process in Trial Courts Clinic contributed over 1900 hours of legal research and writing to the Massachusetts state and federal judges, a record high for the clinic.  The students’ contribution to our local judiciary is particularly significant in our state courts where budgets are tight and full-time law clerks limited.  Student placements included nine with judges in U.S. District Court, eight with judges in the Massachusetts Superior Court, one with a judge in the Boston Municipal Court, one with a judge in the Newton District Court, and one with a judge in the Boston Juvenile Court.

Student legal research and writing for their judges included the full range of civil and criminal matters, such as motions for summary judgment, motions to dismiss, and motions to suppress, as well as habeas petitions, judicial review of agency decisions, evidence issues, and jury instructions.  Students also had the opportunity to observe all the stages of jury trials – from empanelment to witness examinations to closings and verdict. Several students even had the opportunity to join their judge for a conversation with the members of the jury following the verdict. Lunches and personal conversations with their judges increased the opportunity to gain insight into judicial decision making.

The weekly class accompanying the clinic examines elements of the judicial process that students observe first-hand with their judges, including sentencing, judicial ethics, plea bargaining, mediation, the jury, and access to justice. During the semester, students met four international judges – three from Japan and one from Korea – and visited MCI Concord followed by dinner at Judge Cratsley’s home. The judges from overseas added valuable cross-cultural perspectives on judging and made presentations about their personal experiences with the recent inclusion of citizen jurors in criminal trials. One student who visited MCI was most intrigued by the National Education for Assistance Dog Services (NEADS) dog training program run by the inmates.

Student evaluations of their judicial placements describe the variety of gains from their clinical experience. One student emphasized her judge’s candid observations, “My judge shared her insights with us about the cases after the hearing, on whether the lawyers have done a good job and whether the merits of the case are strong.” Two other students wrote about the help they received with legal research and writing skills, “I went through five drafts on one occasion, and the judge made constructive comments about each draft. She was tremendously helpful in improving my legal writing.”  “This clinical placement has led to a huge improvement in my legal writing skill. For every writing assignment, I received direct feedback from the judge and the clerks.”

Overall, students confirmed the unique value of the opportunity to work inside the judicial system directly with a judge; “The chambers were so much more collegial than I anticipated! I was thrilled at how welcoming everyone was.” “The placement exceeded my expectations. The judge and his clerks were absolutely wonderful to work with, and I learned so much from this clinical experience.  The clinic has been the highlight of my law school experience.”

For me, as a clinical teacher, this is all about the value found in so many clinical experiences – the classroom and the law books come alive, become a discernible reality, in the courtroom and in chambers thanks to a remarkable group of sharing judges.

Our Semester in Washington

Source: Pexels

By: Jonathan Wroblewski

Lecturer on Law Jonathan Wroblewski recaps the 2019 Semester in Washington Program for his students.

The 2019 edition of the Harvard Law School Semester in Washington Program has now ended. The semester began with the longest government shutdown in U.S. history; and it ended with a report detailing extensive foreign interference with our presidential election, and Democrats debating whether to begin impeachment proceedings against the President. In days gone by, the events of the last two weeks would be considered historic by all, and we’d be glued to our TVs watching hearings and wondering what would come next. But in the age of daily presidential tweet storms, 24-7 cable news rants, and leadership across the city not quite sure how to deal with it all, Congress is completing a two-week recess and it all seems a bit too routine and somehow not at all shocking.

But what was indeed particularly noteworthy for us this semester — and something which was not in any way routine — were the actions we witnessed by some very prominent government lawyers. From the beginning, the Trump presidency has brought with it many ethical challenges for the government lawyer.  Who do we work for?  What does the “rule of law” really mean? How do we advise our political leaders and stay faithful to our larger obligations?  When should we strive to get to “yes,” and when do we simply need to say, “no.” But this was the year when we saw these challenges being faced head-on and being met (at least partially) at the highest levels. This was the semester where we were brought inside the White House by the Mueller report and saw the White House Counsel refuse a presidential order to obstruct justice. This was the semester where we saw Department of Homeland Security lawyers refuse to implement illegal policies around immigration for political purposes. And this was the semester where we saw lawyers in the Special Counsel’s office both vigorously investigate allegations of wrongdoing by the President and his associates, but also show restraint (right or wrong) in not bringing charges where they were not warranted under the law. The lawyers have stepped up; and it seems to me that the rule of law is holding.

In these last three months, we have both been following it all and trying to model and learn from the great — and not so great — government policy lawyers and professionals. We’ve done so by exploring the headlines, but also by exploring issues arising from our placements and our work in government, from our own interests, and from the interests of our classmates. We read about leadership and how each of us needs to grapple with what we believe in, if we are to effectively lead others. We read about the dynamics of bureaucracy and thought about how it applied to our placements and other government institutions.   We learned from one another, from government lawyers and policy makers in our placements, and from leaders in government, and the not-for-profit world.  We met some fascinating people, including Chiraag Bains and his colleagues at Demos, Retired General David Petraeus, former FBI General Counsel Jim Baker, and head of the Leadership Conference on Civil and Human Rights Vanita Gupta.  We heard Justice Sotomayor reflect on her life and career. And we heard from a dozen or so SiW alumni who shared what they have been doing since the Program and also a nugget or two of wisdom.

As always, what was most gratifying for me was the chance to get to know each of you a bit and to create a small community of learning here in DC. I enjoyed learning from you and seeing your energy and passion for justice and for our country over the past three months. I hope I helped channel that energy and passion and that you will now take your places as leaders who will contribute in real and measurable ways to improving our country and our world. In whatever you do next and throughout your career, there will be opportunities for you to serve. I am grateful that I got to spend the last three months with all of you. As I said tonight at our end-of-semester dinner, you are the antidote to cynicism and distress. You keep me grounded and balanced. Thank you.

Restoring El Caño From Within

By: Alexis Farmer

A square block of tires serves as a fortress, protecting the browned soil. It is the only space in the immediate area that isn’t completely littered with plastic bottles, wrappers, napkins, and other garbage. The trash is a distraction from the colorful murals in the underpass and greenery. Melba, owner of the ecotourism company Excursiones ECO and 4th generation community member, tells us the youth of El Caño Martín Peña created the barrier and the mural to promote beautification in their community. They know they must do what they can to help themselves.

An underpass in El Cano Martin Pena. A mural of colorful birds and water adorns the wall. Tires border a large square of dirt, slightly littered with trash.

Standing under the underpass in El Caño Martín Peña. Credit: Alexis Farmer

10 Harvard Law School students traveled to Puerto Rico as a part of Harvard Law School’s Pro Bono Spring Break. 2019 was the second year Harvard Law School has partnered with organizations in Puerto Rico to help with hurricane relief efforts and other legal services needs in the community. As the Communications Coordinator for the office that organizes the trip, I joined the students mid-way through the break to document their experience and to highlight the community-initiatives active in Puerto Rico.

On Puerto Rico’s Emancipation Day, the students and I learned about the communities along El Caño. Half of the group spent the week working at an organization that provides social programming and legal advocacy for these communities. It was important to learn about the communities they were serving for the week and to see how communities were still crippled from the devastating hurricane.

A pile of trash - boards, papers, and other miscellaneous items sit next to a bush.

Credit: Alexis Farmer

The eight communities along El Caño Martín Peña, a 3.75-mile long tidal channel in San Juan, Puerto Rico are among the most impoverished communities in San Juan. U.S. Census Bureau data shows that in 2017, the average median income in Puerto Rico was roughly $19,800. A site historically polluted and neglected, the communities are facing critical public health and environmental challenges as a result of Hurricane María. El Caño was already in critical condition prior to the hurricane, but once the storm hit in September 2017, the need for environmental sustainability became even more urgent.

A turtle and fish swim in clouded water.

Credit: Alexis Farmer

Many of the pastel colored homes are without roofs. The lush greenery surrounding us feels refreshing, but Melba tells us murky water nourishes the roots. Power lines bend towards the street, weathered and weary from Mother Nature’s wrath. The channel is clogged with debris and sediment. In a written testimony to the U.S. House of Representatives, Lyvia Rodriguez, executive director of ENLACE said that the lack of a sewer system and storm water system has led to pollution in homes and flooding. If it rains hard enough, El Caño floods tread back into the community, exposing residents to polluted waters.

Electric poles bend in towards the street.

Credit: Alexis Farmer

Approximately 130,000 people, nearly 4 percent of the population, left Puerto Rico for the U.S. mainland after the hurricane, according to U.S. Census Bureau data. But for many with low-incomes, moving is not a possibility. “It’s not sensible,” said Estrella, the Environmental Affairs Manager of ENLACE. “It would cause mass displacement, [particularly] for low-income communities.” The Corporación del Proyecto ENLACE del Caño Martín Peña is organizing an ecosystem restoration project, which includes dredging the water. Estrella, a tall young woman, is passionate about making a change. She’s been supervising five HLS students over the week as they conduct legal research on whether ENLACE can access federal community block development grants to help rebuild homes and help residents access formal banking. She fervently remarks on how gentrification damages communities and that ENLACE’s goal is to improve the conditions of where people already are. Estrella asserts that the organization is committed to help residents avoid eviction and ensuring the community reaps the benefits of new investments.

HLS JD and LLM students pictured with Estrella (middle).

HLS JD and LLM students pictured with Estrella (middle). Credit: Alexis Farmer

To further complicate matters, many residents of El Caño cannot access FEMA assistance because they cannot prove they own their homes through titles of deeds. Last May, FEMA only approved 40% of applicants for disaster assistance to fix their homes. Michelle Sugden-Castillo, a housing nonprofit consultant in Puerto Rico, told NBC News that some homes were passed down through generations and didn’t get properly registered. According to the agency’s guidelines, those who cannot prove ownership can still meet FEMA requirements by providing alternate verification of home ownership, including mortgage payments, property tax bills or receipts, a bill of payment record, or some proof of occupancy (a credit card statement, utility bills, driver’s license, etc).

A large grass field. Three homes are pictured missing some sort of its structure: windows, a roof, etc.

Credit: Alexis Farmer

Community members are intent on staying. Ana is a community legend. A small, silvered hair woman, began a community garden in her neighborhood, but not without a fight. She used to see people dumping trash in the empty lot across from her house, until she began to chase them off. Other community members noticed her efforts and joined her – organizing a plan to begin a garden. The garden now covers nearly two New York City blocks. Students come to help tend to the garden. It is now a source of food and fellowship.

A community garden

Credit: Alexis Farmer

Outside of her tangerine flat, Ana shares limbers, a tropical twist on Italian ice, with her neighbors and those who pass by. The sweet treat is a nice relief in the sweltering heat and blissfully sunny day. Melba, a young activist herself, shares Ana’s story. Melba has been active in the community fighting for ecological and environmental justice since she was 17. She started off with the Sierra Club, but has since joined ENLACE and started her own ecotourism company. Melba is small, but mighty. She is committed to staying in her community and helping it improve. “We understand the value of the water way and we want to restore its value.”

10 HLS students traveled to Puerto Rico. Here, the group sits on Ana's porch. Ana pictured in the top right. Melba is the first on the right-hand side in the bottom row.

10 HLS students traveled to Puerto Rico. Here, the group sits on Ana’s porch. Ana pictured in the top, second to the far right. Melba is the first on the right-hand side in the bottom row. Credit: Alexis Farmer

Life along El Caño still exists. Turtles and fish swim in the water. Plantains and vegetables are among the shrubbery between homes. People sit outside on their porches, watching kids ride bikes and others walking the smooth pavement. The work to rebuild is already set in motion. It is clear that El Caño is a recreational, economic, and environmental asset of Puerto Rico. It is not only for the people, but will be reshaped and developed by the people.

The channel

Credit: Alexis Farmer

 

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The Sneaky Fight to Give Cable Lines Free Speech Rights

Via Wired  


Source: Flickr

By: Susan Crawford

When you make a phone call, I’m willing to bet you don’t think of the phone line as having free speech rights of its own. That phone line has one job: getting the sound of your voice to the place you want it to go. It isn’t planning to deliver a speech or getting ready to go on Broadway. Although life may be boring for the phone line as a result, it is actually getting a great deal: The phone line can’t get blamed for whatever lousy thing you say during your call.

But if the cable industry gets its way, internet access—today’s basic utility—will be treated just like the press for First Amendment purposes, giving it a free pass in perpetuity from any governmental oversight. In the US, the First Amendment gives the press the right to be free from governmental interference when it publishes or speaks. Any laws or regulations restricting that speech are likely to be subject to rigorous scrutiny by courts and found unconstitutional.

It seems counterintuitive that a phone line could be a “speaker.” But the cable industry very much wants to ensure that the act of transmittingspeech from Point A to Point B is protected by the First Amendment, so that making a cable connection carry any speech it isn’t interested in amounts to unconstitutional “forced speech.”

The addition of Justice Brett Kavanaugh to the Supreme Court roster gives the industry a significant boost. In a 2017 DC Circuit dissenting opinion, Justice Kavanaugh made it clear that he supports giving internet access providers “speaker” privileges, saying that “the First Amendment bars the Government from restricting the editorial discretion of Internet service providers.”

Everything we do and every policy we care about—according a world-class education to every child, responding to climate change, ensuring access to health care—depends on reliable, cheap, nondiscriminatory internet access. So wrapping the internet access industry in the flag of the First Amendment is a terrible idea. It’s a particularly bad idea when it comes to the cable industry, which in most American metros is a local monopoly. Comcast, for example, has very deep pockets and lots of side businesses, giving it both the ability and incentive to pick and choose among the speeches (read: businesses) it prefers.

What’s amazing is that the cable industry seems happy to accept the increased liability that accompanies being treated like a newspaper. Apparently freedom from all rules is worth the risk of someday dealing with lawsuits. The reason: They’ve got plenty of cash to pay lawyers with. It’s a good time to be Spectrum or Comcast.

All the furor over Facebook and Amazon has diverted public attention from Comcast and Charter, just when the cable industry’s risk of regulation has been substantially eliminated through the helpfulness of FCC chairman Ajit Pai. Both companies are peacefully coining profits.

Charter, which sells connectivity under the Spectrum moniker, made about $11 billion during the third quarter of 2018, a period when it added more than 300,000 new subscribers to its roster, and Wall Street is pleased with its “pricing power.” The company can raise its prices whenever it wants, because it faces little or no competition in the cities where it operates. Margins are growing, the company is buying back its stock, and its capital expenses are going down. Charter is in a milking phase, as is Comcast, which just had one of its best quarters in years. As analyst Craig Moffett puts it, cable companies are “infrastructure providers.” And their infrastructure is essentially unchallenged, either by competition or oversight.

The cable industry’s constitutional gambit is part of a broad movement to use the First Amendment as a tool to avoid regulation. Justice Elena Kagan has colorfully described this movement as the “weaponizing” of free speech rights, saying that companies are “turning the First Amendment into a sword.” The public interest group Public Knowledge recently filed a brief with the Ninth Circuit pointing to the Kimberly-Clark corporation, which claimed a First Amendment right to label wipes as “flushable” even if it disagreed with a governmental assessment that they weren’t. A drug supplier (identified only as M7) recently claimed that selling lethal drugs suitable for use in executions to a state was an “expression of political views, no different than signing a referendum petition or selling a T-shirt.”

Those examples sound almost funny. But for the cable industry, this is serious business—a strategy that will have particularly pernicious consequences for communications. Treating the transmission of data as “speech” will make it virtually impossible for the government to say anything at all about internet access. If the government tries to regulate someday, you can be confident that the industry will make a lot of noise in the form of lawsuits focused on cable’s First Amendment rights to carry out its “editorial discretion,” in hopes that Justice Kavanaugh will get a chance to lock in the industry’s status as a member of the press. The “speech” of a handful of giant companies will be privileged over the ability of all Americans—including all other American businesses—to communicate.

Treating these transmitters of online data like constitutionally protected “speakers” would be a disaster. Recently, Charter exercised its “editorial discretion” by refusing to carry the channels of an African American–owned television company, Entertainment Studios, which had been able to make distribution deals with Verizon, AT&T, and DirecTV. Entertainment Studios could barely get a meeting with Charter. It was able to show that white-owned, lesser-known networks were able to sign contracts with Charter during the same period. Charter argued that any racial discrimination claim was blocked by the First Amendment, because laws cannot be used “to force cable companies to accept channels they do not wish to carry.” Last month, the Ninth Circuit refused to go along with this argument, pointing out in simple language that Charter was prohibited from discriminating against networks on the basis of race. Why? Because the Civil Rights Act of 1866 says so.

Given another chance, Charter or Comcast will unquestionably bring this same “forced speech” argument into the context of internet access. They might argue, for example, that a particular online site does not have a right to reach consumers and businesses. Justice Kavanaugh has already signaled his readiness to support this move, saying that “deciding whether and how to transmit ESPN”—the cable TV channel, something a payTV provider can choose whether to carry—”and deciding whether and how to transmit ESPN.com“—the website, presumably reachable over the internet—”are not meaningfully different for First Amendment purposes.”

The next time around, the evidence Entertainment Studios was able to muster may not matter, particularly if such disparate treatment isn’t so obviously based on race or other protected classifications. Comcast has already arguedthat a Vermont requirement that it expand its service area “amount[s] to undue speaker-based burdens on Comcast’s protected speech under the First Amendment.”

Right now, the cable industry is unquestionably operating a service that customers view as a utility. But it is subject to vanishingly few obligations. And now it wants to ensure that it will be wrapped in the Constitution if the government ever tries to change this situation. This should be intolerable.

After Fifteen Years, the Bolivian Struggle for Justice Continues in the United States

Via the Human Rights Program

By: Thomas Becker

Téofilo Baltazar places flowers on the tomb of his wife, Teodosia, who was shot and killed during Black October.

On October 12th, students from the International Human Rights Clinic arrived at the Villa Ingenio Cemetery on the outskirts of El Alto, Bolivia to celebrate the lives of those killed in Bolivia’s “Black October.” Despite the somberness of the drizzly afternoon, the cemetery was adorned with the bright colors of the family members’ aguayos (blankets) and polleras (traditional billowy skirts worn by Bolivia’s Aymara women). Today was a special occasion.

Téofilo Baltazar was one of the family members present at the cemetery. Fifteen years ago to the day, Bolivian soldiers shot and killed his pregnant wife Teodosia while she was praying inside her sister’s home. As Téofilo placed flowers on his wife’s tomb, he stated, “Hasta el último momento lucharé por la justicia.” (“Until the last moment, I will fight for justice.”)

Téofilo, like so many relatives of the roughly 500 casualties during Black October, is Aymara. Historically, the country’s indigenous people have been excluded from justice, but Téofilo and his friends were determined to change this.

In 2007, nine Aymara Bolivians launched a landmark lawsuit in U.S. federal court against Bolivia’s ex-President Gonzalo “Goni” Sánchez de Lozada and ex-Defense Minister Carlos Sánchez Berzaín, who fled to the United States after Black October and have lived here ever since. The case sought to hold both men responsible for the role they played planning and organizing the mass killings that took their family members.

After years of legal obstacles, the lawsuit went to trial in March of this year, marking the first time ever a former of head state was forced to directly face his accusers in a U.S. courtroom. The victims’ family members made history when, after a three-week trial and a week of deliberations, the ten-person jury unanimously held Goni and Sánchez Berzaín liable for the killings and awarded the plaintiffs $10 million. This was the first human rights verdict in the United States against a living head of state.

Unfortunately, in May, a judge overturned the historic jury decision. The judge upheld the defendants’ Rule 50 Motion for Judgment as a Matter of Law, which argued that there was insufficient evidence to support the verdict. This decision forced the families back to court.

Teodosia’s tomb with photos and flowers honoring her life during the memorial.

Last month, as Bolivians celebrated the lives of those killed in Black October, the plaintiffs submitted an appellate brief to the United States Court of Appeals for the Eleventh Circuit arguing that the district court applied the wrong legal standard for extrajudicial killings and the jury verdict should be reinstated. Additionally, current and former U.N. Special Rapporteurs on Extrajudicial, Summary, or Arbitrary Executionsretired U.S. military commanders, and law of war scholars submitted amicus briefs on behalf of the plaintiffsEarly next year, the Defendants will file their opposition brief and Plaintiffs will file their reply; oral argument is expected in spring 2019.

Though the struggle has been long, the families remain steadfast in their fight for justice. It is the memories of their loves ones that keep them going. At the cemetery, Téofilo shared with the Clinic’s students the importance of their victory and its significance for survivors throughout the world. “The jury is the voice of the American people, and the people have spoken. No court can change that. No court can change the message it sends to the world,” he told the students, adding: “But the struggle continues.”

The Clinic and co-counsel from Center for Constitutional Rights, Akin, Gump, Strauss, Hauer & Feld, LLP, and Schonbrun, De Simone, Seplow, Harris & Hoffman, LLP have represented the plaintiffs from the outset in the case. Clinical students Luna Borges Pereira Santos LLM ’19 and Kevin Patumwat JD ’19 traveled with clinical instructor Thomas Becker JD ’08 to Bolivia in October to commemorate 15 years since Black October.

Challenging Immigration Law’s Conviction Definition

Via the Harvard Civil Rights-Civil Liberties Law Review

Source: Pexels

By: Philliip Torrey

The “conviction” definition is one of the most misunderstood and odious provisions in our country’s immigration statute. The “conviction” term is a misnomer because it includes criminal dispositions that are often not considered convictions at all. Despite its perplexing definition, “convictions” are frequently used as markers for removal. For example, in FY2017, Immigration and Customs Enforcement (“ICE”) apprehended 143,470 individuals within the interior of the United States and ninety-two percent of those individuals had a criminal conviction, arrest, or an outstanding removal order. In FY2016, ICE’s apprehension totals likewise showed that ninety-two percent of individuals arrested by ICE had a criminal conviction. The purpose of this short article is to explain immigration law’s enigmatic “conviction” definition, its nefarious history, and current efforts to challenge the definition’s interpretation. In so doing, the article draws on my prior scholarship, which — along with a seminal article by immigration scholar Jason Cade — became the blueprint for challenging the “conviction” definition in federal court.

In 1996, the “conviction” definition was codified in our country’s primary immigration statute known as the Immigration and Nationality Act (“INA”). The INA’s “conviction” definition includes two distinct prongs. If either prong is satisfied, then the state criminal disposition at issue is rendered a conviction for immigration purposes regardless of how the state categorizes the disposition. The definition’s first prong is straightforward. It simply requires a final judgment of guilt entered by a court. The second prong, however, turns any guilty plea, no contest plea, or admission to “sufficient facts to warrant a guilty finding” plea into a conviction for immigration as long as some punishment, penalty or restraint on liberty is imposed — even if that plea is held in abeyance or later vacated. The second prong, as currently interpreted, morphs many deferred adjudications and expungements into convictions for immigration purposes even though most states would not consider dispositions from those types of ameliorative programs convictions for state law purposes.

Sweeping ameliorative programs into the “conviction” definition was no mistake. The definition was codified in the Illegal Immigration and Immigrant Responsibility Act of 1996 (“IIRAIRA”), which was passed during an election year when Congress was eager to demonstrate that it was tough on crime and determined to secure our borders — both of which were considered winning campaign slogans. Although IIRAIRA has a dearth of legislative history, the following quote from a conference report is illustrative:

[A]liens who have clearly been guilty of criminal behavior and whom Congress intended to be considered “convicted” have escaped the immigration consequences normally attendant upon a conviction. . . .  [E]ven in cases where adjudication is “deferred,” the original finding or confession of guilt is sufficient to establish a “conviction” for purposes of the immigration laws.[1]

But in the age of the plea deal where “innocence is irrelevant” and mass incarceration and racial discrimination have become synonymous with criminal justice, the assumption that individuals who pursue an ameliorative program are “clearly . . . guilty of criminal behavior” is baseless at best and overtly vindictive at worst.

In fact, all states offer ameliorative programs that were designed to respond to rising incarceration rates and the devastating effects of the War on Drugs on communities of color. For example, Missouri has a suspended sentencing program that does not result in a conviction for state law purposes and therefore allows certain criminal offenders the opportunity to avoid the societal disenfranchisement that typically comes with a criminal conviction. Describing that ameliorative program, the Supreme Court of Missouri noted that “[t]he obvious legislative purpose of [the program] is to allow a defendant to avoid the stigma of a lifetime conviction and the punitive collateral consequences that follow.”[2] The Court further recognized that the deferral program was an important “tool” for criminal sentencing courts to allow certain offenders “a chance to clear their records by demonstrating their value to society through compliance with conditions of probation under the guidance of the court.”[3] When the INA’s “conviction” definition attaches immigrations consequences such as detention and deportation to these ameliorative programs, it frustrates the state’s desire to facilitate the rehabilitation and reintegration of individuals in those programs.

A California expungement law is now at the center of litigation because of the inherent federalism tension created by immigration law’s “conviction” definition. The California expungement statute allows a defendant to withdraw a guilty plea when subsequently imposed conditions of probation are met. A final plea of not guilty is then entered by the court, which effectively vacates the prior guilty plea. The purpose of the law is to “help further reduce recidivism, building upon statewide efforts to assist those who have served their time and proven their willingness to be productive, contributing, law-abiding members of society.”[4] California’s expungement law is a legitimate exercise of its reserved powers to regulate the health and safety of its residents because it designed to encourage “rehabilitated individuals to obtain a decent paying job, qualify for secure and safe housing, or pursue their educational goals.”[5] The purpose of that law is thus undermined when individuals with expunged convictions are detained and deported by the immigration enforcement system.

The obvious federalism tension between the INA’s “conviction” definition and California’s expungement law is at issue in a lawsuit currently pending before an en banc Ninth Circuit. In that case, I recently co-counseled an amicus brief on behalf of immigration professors arguing that a California expungement should not be categorized as a conviction for immigration purposes. The brief argued that the expungement law was a valid exercise of a state’s reserved police powers and that the INA’s “conviction” definition must be interpreted to avoid purposefully obstructing a state’s ability to exercise that power. In other words, the federalism principles upon which our government is founded do not grant Congress the unfettered authority to undermine a state law duly enacted pursuant to a state’s constitutional authority.

At a time when the current Administration invokes the “rule of law” to justify the reprehensible use of detention and deportation to tear families apart, it is more important than ever to confront nefarious parts of our immigration law that have gone overlooked for decades. The “conviction” definition is one such feature of our immigration law that advocates should continue to challenge.

[1]  See H.R. Conf. Rep. No. 828, 104th Cong. (1996), reprinted in 142 Cong. Rec. H10899 (daily ed. Sept. 24, 1996).

[2]  Yale v. City of Independence, 846 S.W.2d 193,195 (1993).

[3]  Id.

[4]  A.B. 1115, Comm. on Pub. Safety, 2017-18 Sess., at 2 (Cal. 2017).

[5]  A.B. 1115, Third Reading Bill Analysis, 2017-18 Sess., at 5 (Cal. 2017).

Trump Is Rewriting Asylum Law

Via The Atlantic 

Source: Pixabay

By: Sabrineth Ardalan

Two days after yet another mass shooting, President Donald Trump on Friday issued a proclamation addressing mass migration. “The continuing and threatening mass migration of aliens with no basis for admission into the United States through our southern border,” he wrote, “has precipitated a crisis and undermines the integrity of our borders. I therefore must take immediate action to protect the national interest.”

The mass shooting, like most mass shootings, was committed by an American citizen, a white male. There’s not much detailed information about who is part of the so-called caravan on the way to the southern border. But it seems the migrants hail mostly from Guatemala, Honduras, and El Salvador, where femicide rates are the highest in the world and government protection is nonexistent. Chances are, they resemble my clients at the Harvard Immigration and Refugee Clinical Program. People like Maria, who was kidnapped by her abuser, an auxiliary for the Honduran authorities, at a young age and subjected to years of rape. And like Jennifer, who was forced to flee El Salvador after gang members threatened to kill her and her family because they had encouraged youths to join the Evangelical Church instead of the gangs. (I’ve used pseudonyms to protect my clients’ anonymity.)

Our clients sit in our office for hours at a time and share horrific stories of the violence they suffered in their home countries, and of the children, parents, and siblings they were forced to leave behind. Despite everything they have lived through, they bring tremendous warmth and generosity. They also bring their tremendous faith in America, a country that they believe can and should offer them protection.

Trump’s proclamation and new interim regulations fly in the face of that belief. The administration plans to restrict asylum only to those who present themselves at ports of entry; people entering the country via the southern border in any other way would be limited to much more circumscribed forms of relief that would not include reuniting with their family members, obtaining a green card, or a path to citizenship. The administration also plans to enter into an agreement with Mexico to force asylum seekers traveling through that country to claim protection there instead of in the United States.

At first blush, these rules may not seem extreme. But the “ports of entry” restriction ignores the fact that Customs and Border Protection routinely turns away people even after they have asked to apply for asylum. As one woman told the Inter-American Commission on Human Rights, “I told [the CBP official] that I wasn’t from here, that I was from Honduras, and that I wanted asylum. He told me that there was no longer asylum for Hondurans … I started to explain why I couldn’t return and what I was fleeing from, but he interrupted me and said that everyone comes with the same story, that he couldn’t help me.”

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Heartbreak at the Border: Cindy Zapata on Her Trip to Karnes Detention Center

Via the Harvard Immigration and Refugee  Clinical Program

By: Cindy Zapata

There are some memories that remain so vivid in my mind. Some of them are obvious ones, like the day I got married and the day my son was born. Others are not so obvious, like the time my mother made me pay for a 5 dollar chicken shawarma in dimes and nickels. She laughed hysterically from afar as I ashamedly walked over and paid the man in countless coins. She insisted that it was a life lesson on the value of money – money is money, whether it comes in the form of a bill or a coin.

Often these memories evoke the emotion I felt in that very moment – joy, happiness, embarrassment – but there are some memories that not only evoke the emotion, but, in a way, transport me to the very moment of the experience. An example? Volunteering at the Karnes Family Detention Center.

During the four day stretch we were there, we met with countless fathers and sons. We helped represent some for their credible fear interviews or drafted affidavits. For others, we represented them for their reasonable fear redetermination appeal before an immigration judge. In three days, we had more than ten hearings.

Each had a very unique story, but they all shared a similar sentiment: they were scared of returning to their home country. Each had suffered or witnessed unimaginable horrors – sexual violence, physical assault, and death.

In my work, I’ve visited various different prisons and detention centers. As one can imagine, it’s a challenging experience. They’re physically and emotionally cold, and you can almost feel the desperation and lack of liberty in the very air you breathe.

But Karnes. Seeing fathers and children in detention. Seeing a three-year-boy in detention. It’s an image I can’t get rid of.

There were so many moments in our time there where I saw the law simply not protect the people that it was intended to protect. I saw the law fail miserably in upholding due process and basic fundamental rights. Individuals with valid asylum claims were not even allowed to explain their fear and experiences in court or they were denied interpreters or legal representation despite their affirmative requests. One father told me he had been separated from his five-year-old son – he was simply taken away. During that time of separation, he received his credible fear interview (CFI). I read his CFI and it was clear that this heartbroken man was incapable of understanding the questions before him. The only questions he asked over, and over, and over again were – Do you know where my son is? When will he come back? Can you help me find my son? Questions the asylum officer could not answer.

By the time I met this father, I was helping him finalize his affidavit to request a new interview before the asylum office. He was closing in on approximately three months in detention. He was tired and desperate. Despite having an extremely strong political asylum claim, he just couldn’t handle the thought of him and his son being in detention even a week longer. He was close to giving up.

My return home from Karnes was difficult. I’d see my son playing and I’d be immediately overwhelmed with guilt, knowing that I’d never have to make the impossible decisions these parents have made. I couldn’t shake the thought that at any given moment this father and his son, and countless other parents and children, are in detention.

Whenever I see kids coloring, I sometimes find myself back at Karnes. The kids weren’t allowed to color.

Whenever I see an image or a drawing of a dove, I sometimes find myself back at Karnes. An indigenous boy I met with had drawn a dove on his school folder. He was very talented.

I find that individuals in detention often draw doves.

A symbol of hope for a new beginning.

Cindy Zapata is a Clinical Instructor at HIRC and supervises the HLS Immigration Project (HIP).

Cities Are Teaming Up To Offer Broadband, and the FCC is Mad

Via Wired.com

Source: Pixabay

By: Susan Crawford

This is a story that defies two strongly held beliefs. The first—embraced fervently by today’s FCC—is that the private marketplace is delivering world-class internet access infrastructure at low prices to all Americans, particularly in urban areas. The second is that cities are so busy competing that they are incapable of cooperating with one another, particularly when they have little in common save proximity.

These two beliefs aren’t necessarily true. Right now, the 16 very different cities that make up the South Bay region of Southern California have gotten fed up with their internet access situation: They’re paying too much for too little. So they are working together to collectively lower the amounts they pay for city communications by at least a third. It’s the first step along a path that, ultimately, will bring far cheaper internet access services to the 1.1 million people who live in the region.

You might think this is impossible. It’s true that many city officials have argued that regional collaborations are resource-intensive and bound to fail. That’s the case in the Boston area, where a city official in Malden (7 miles from Boston City Hall) bluntly told researchers, “I couldn’t support regional government at all. Each community has its own unique set of circumstances and facts and issues.”

The South Bay partnership suggests a promising alternative: Maybe cities can cooperate and save money without compromising their local autonomy. At this same moment, though, the FCC is on a march to smother local authority by blocking states from regulating any aspect of broadband service, supporting states that have raised barriers to municipal networks, deregulating pricing for lines running between cities, and removing local control over rights-of-way that could be used to bring cheaper access into town.

Read the full article here.

Why An Army of Small Companies is Defending the Sprint/T-Mobile Merger

Via Wired.com 

Source: Pixabay

Cyberlaw Clinical Professor of Law Susan Crawford writes about why small companies are supporting the T-Mobile/Sprint merger and what the consequences are for consumers if the merger occurs:

Last month, Reuters reported that T-Mobile was asking the small operators that resell T-Mobile’s excess network capacity to write letters and opinion pieces in support of the company’s proposed $36 billion merger with Sprint.

T-Mobile’s request wasn’t unusual. Trumping up support for deals that aren’t actually in the public interest is common practice in the swamp we know as US telecom policy. When Comcast was working on its merger with NBCU at the beginning of this decade, supportive comments poured into the FCC from companies across the country who had an interest in keeping Comcast happy. By helpfully suggesting talking points to resellers—or MVNOs, for Mobile Virtual Network Operators—including Mint Mobile, Republic Wireless, and Ting, all of which lease access from the Big Four network operators (Verizon, AT&T, Sprint, and T-Mobile) in order to sell phone and data services to customers, T-Mobile is following the usual “air of inevitability” merger playbook.

What’s so troubling about T-Mobile’s get-out-the-vote campaign is who is aiding the company’s lobbying. MVNOs, who don’t own their own infrastructure but collectively account for about 10 percent of the consumer wireless market in the US, primarily target “value” consumers, otherwise known as low- and medium-income Americans. These small companies, who are utterly dependent on the goodwill of the Big Four, are serving Americans who are making barely enough to survive.

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Searching For A Leader, Not Just A General

Via HNMCP

Robert C. Bordone & Sara del Nido

Listening to the language that most Presidential candidates have regularly been using in their speeches, it’s hard not to have a bunker mentality: battles, wars, and fights seem to be all around us. From Hillary Clinton to Donald Trump, nearly all the current candidates have engaged in the rhetoric of war to describe their campaigns. Senator Ted Cruz provided an archetypal example of the mindset by asserting during the most recent Republican debate, “We need to stop surrendering and start standing for our principles.” Many media outlets are no better, framing such debates as fights and linking combativeness with perceived strength. The emphasis on “fighting,” “winning,” and “battles” calls to mind a combat mission or boxing match, not an election.

Everywhere we turn, it seems that our politicians are fighting for every possible cause. But against whom? And why?

Truth be told, it’s likely that nearly all of the Presidential candidates aspire to similar fundamental goals – economic and national security, quality education, freedom of expression – albeit with different strategies on how to achieve them. But what gets lost when these differences are persistently framed as zero-sum battles that the President must fight?

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Why Do We Need “Peace” Stories?

Robert Bordone, Clinical Professor of Law and Director, Harvard Negotiation and Mediation Clinical Program

Robert Bordone, Clinical Professor of Law and Director, Harvard Negotiation and Mediation Clinical Program

Via the Harvard Negotiation and Mediation Clinical Program

By Robert Bordone, HNMCP Founding Director and Thaddeus R. Beal Clinical Professor of Law 

This summer, my heart and mind have been consumed by the surge of violence in and around Gaza. Posts on my Facebook news feed and Twitter account, as well as personal communications from friends and colleagues in the region, have provided a chilling, sad, and yet still incomplete glimpse of what daily life has been like for so many in Israel, Gaza, and the West Bank. 24 hours into what will hopefully be a lasting cease-fire, these snapshots nevertheless stay with me. The photos and stories of grievous injuries and deaths and the vitriolic rhetoric and debate over the issues at stake have, at times, felt overwhelming. An externality of the war this summer has been increased media coverage of grassroots efforts to promote peace between Israelis and Palestinians by a multitude of NGOs who have been working in the region for years, sometimes even decades. Recently, Seeds of Peace – a non-political organization teaching peacemaking and leadership skills to teenagers from conflict zones, on whose Global Advisory Board I serve – has been spotlighted with a great deal of coverage, including by the NBC Nightly NewsUSA Today, and other outlets.

This media coverage, while universally complimentary of the organization and its efforts, leaves me feeling conflicted.

On the one hand, I am heartened by the uplifting stories of dialogue and connection between the teenagers on opposite “sides” of the conflict. Indeed, the positive message spread by the media is borne out in my own experience interacting with both the young leaders themselves and the courageous individuals who run Seeds of Peace’s summer camp in Otisfield, Maine. Israelis and Palestinian youths come together and often – through tremendously difficult work that seems nearly impossible to most of us – find ways to empathize with and appreciate the narrative of those whom they would otherwise see as enemies. Kids4Peace, another organization operating a similar camp here in Boston, takes on the same challenging task of creating space for dialogue and connection between groups in conflict. Learning about these organizations encourages me because they truly envision a better future and work tirelessly to chip away at a problem that usually seems intractable and, some might say, hopeless. They believe in, and act on, the humbling truth that change begins with individuals.

On the other hand, these news stories – and my own heartened reaction to them – are troubling. Seeds of Peace has been running a summer camp for over 20 years. Why do we only see such an increase in media coverage of organizations like this when the war in Gaza reaches new heights? What human need do these “peace” stories fill for us, as concerned but otherwise distant spectators of the renewed violence? I worry that occasional “token” news reporting like this gives us just enough “cover” to sleep at night – to rest assured that everything will work out well in the end because good can survive even in the midst of violence and destruction. Indeed, TV spots about NBA stars playing basketball with campers certainly offer a respite, a chance to exhale when the vast majority of the news we have heard from the region only makes us gasp with horror and sadness. But I worry it might inadvertently make us feel just “okay enough” to feel better about a world that perhaps we shouldn’t feel better about – for along with the inspirational messages from the media comes the risk of complacency and a false sense of security. It coats the difficult and heart-wrenching work of managing real conflict with a shiny veneer, and sometimes even serves as a distraction from the work that the campers need to be doing themselves. Worse, I wonder also whether it allows us to absolve ourselves of responsibility and connection with the conflict generally. After all, if inspiring and mature young teenagers are taking on the work of peacebuilding, isn’t the future in good hands? A tempting but perilous response to the media coverage could be, “Our work is done.”

My quandary about the media coverage leaves me confused and stuck. While I feel proud of the “seeds” and gladdened that the public consciousness is being raised about their efforts, I am left with the sour sense that the news stories are trying to put a neat bow on something that can’t – and shouldn’t — be wrapped. My only conclusion is that my own feelings about the way the media has responded to the surge in war over the past several months mirror in a small sense the complexity  of the conflict itself. My hope is that peacebuilding efforts – in the Middle East and elsewhere – will one day be newsworthy in and of themselves and that important stories of conflict management can be told on a more constant basis – not only when we, the public, seem to need them most.