Comparative law research reaches prisoner rights; women's rights; tech patents; internet, drug reg

Law Offices of James L. Arrasmith CC BY-NC 4.0

In fall 2024, I had the privilege of teaching Comparative Law for the sixth time.

For my time and energies, the course is the best one to teach, because it offers the best opportunity for a lifelong learner. Law teaching usually requires mastering a broad and deep range of content so that one can guide students capably through it. Not so in Comparative Law, in which the teacher cannot possibly know the substantive content of all of the legal systems of the world. Rather, the course is about arming students with the tools of comparative methodology, and then savoring the opportunity to learn from them, what they find in their own research.

This year was not lacking in the savory. As I have in the past, I am proud and pleased to share a collection of abstracts representing the yeoman work of my students in the fall semester. You will see that the students devised some wonderfully innovative theses. The subject matter that researchers tackled spanned prisoner legal rights, marijuana regulation, black women's representation in the legal profession, women's rights in Afghanistan and in Dutch sex work, semiconductor patents, and regulation of online misinformation.

Alayna Wageman, Prisoners Are Human Too: A Comparative Analysis of Prisoners' Right to Legal Assistance in Chile and the United States. Both Chile and the United States guarantee, through their constitutions, the right to legal counsel for individuals who cannot afford a lawyer during criminal prosecutions. However, prisoners lack resources to access legal assistance when their basic human rights are violated while incarcerated. This project seeks to show how the extreme traumatization of citizens in the United States from the years of slavery and the extreme traumatization of citizens in Chile from the years of dictatorship continue to impact the treatment of prisoners today. This paper begins with an overview of the history of slavery in the United States, specifically in Massachusetts, and an overview of the history of dictatorship in Chile. Next, the paper will explain the laws that define the right to legal assistance for prisoners in Chile and Massachusetts. Finally, the paper compares two programs designed to improve prisoners' access to legal resources: the Prisoners' Legal Services (PLS) of Massachusetts in the United States and the Penitentiary Defense Program (Programa de Defensa Penal Pública Penitenciaria) in Chile. This analysis demonstrates how the influence of the historical extreme traumatization of societies continues to impact the treatment of prisoners in both countries, with focus on the limitation of access to legal assistance in prisons. The paper concludes by acknowledging the efforts of the PLS and the Penitentiary Defense Program, which are working to further protect the rights of prisoners.

Carson Powell, Quality Over Quantity: A Comparative Analysis of Marijuana Quality Control Regulations Between the Netherlands and the United States. This paper compares the law and regulations of the United States and the Netherlands, on the regulations that are used to ensure the quality of marijuana sold legally. First, the paper focus will be on the Dutch marijuana policy, and its past, current and future regulation protecting the quality of the marijuana sold in "coffee shops." Next, the focus will shift to the United States and specifically Colorado regulations when testing the quality of marijuana. The paper views policies implemented to ensure quality and safety within the production, testing, distribution and the sale of cannabis/marijuana products. Finally, the paper compares Netherlands regulations on marijuana quality assurance and with Colorado laws and regulations that establish the safety of state citizens. The paper compares the laws and regulations, how they relate to each other, and the social results. The paper concludes with recommendations based on the comparisons drawn from the two parties, and whether each can become more effective and efficient with its own processes.

Kennia Joseph, A Comparative Analysis of Gender and Racial Equality for Black and Nigerian Women in the Legal Profession. This paper compares the laws in the United States and Nigeria that address gender and racial equality and their effect on black and Nigerian women in the workforce, specifically in the legal profession. One of the key issues in ensuring gender equality in employment lies in enforcing existing laws and policies. The comparison between Title VII of the Civil Rights Act and the overturned affirmative action practices thereunder, Article 11 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the failed Nigerian Gender and Equal Opportunity Bill of 2016 highlight underrepresentation in the legal field. Despite developing systems to support and encourage race and gender equality, black women from different cultures, and political, societal, and economic climates share experiences in the same profession with similar laws, initiatives, and policies.

Nick Saathoff, A Comparison Between Patents on Semiconductors in Germany and the United States. Patent law in Germany and the United States protects those who invent or discover patentable processes. Ideologies between the two countries differ in the field. In the United States, a patent is mainly a monetary protection. In Germany, in addition to monetary protection, there is an honor and prestige associated with inventing. This paper discusses patent law in each country specific to the field of semiconductors. Semiconductors are one of the most technologically significant patentable items in the world today. The paper initially provides an overview of patent law in each country and what role semiconductors play. This paper identifies similarities and differences between patent protections, patent quality, and patent strategies in the United States and Germany. In doing so, the paper discusses key requirements of obtaining a patent. The paper discusses one requirement at a time, discussing the interpretation in the United States and the interpretation in Germany. The paper then notes patent statutes in each country specific to the semiconductor industry. Additionally, the paper will discuss nuances in each country’s patent laws in the semiconductor industry.

Rebecca Stump, A Comparative Look at Sex Work in the United States and the Netherlands. Sex work, historically, has been a controversial occupation for a variety of reasons, including religious beliefs, women’s rights, bodily autonomy, and the extent to which the state should regulate an individual's choices over their own bodies. During this period, sex work has been considered a shameful profession, one which must be criminalized to deter human trafficking or coercion. However, as understanding and advocacy for bodily autonomy and freedom to self, and countries such as the Netherlands reform and change their sex work laws, there are movements for change to law in the United States. The aim is for a discussion, through comparison of the legal systems of Nevada and the Netherlands and the main avenues for reform, partial decriminalization and full decriminalization or legalization, the social and legal implications of legalization of sex work to further investigate reform in the United States. Within research regarding sex work, there are critical biases that must be acknowledged prior to engaging in discussion. First, and foremost, is the moral and ethical considerations of sex work. Sex work is not merely seen as an occupation free from moral implication, but an occupation for which every person may offer their individual consideration as to the ethical value of the work. To engage in substantive discussion, morality must be stripped away. Instead, one must be willing to engage in discussion solely on the legal ability of an individual to make a choice regarding the services they offer using their person, and the role of the state in legislating that decision. To that point, a discussion regarding the legality of sex work is necessarily a discussion of the extent to which the state should regulate labor. There exist various viewpoints as to the question of federalism and the role of the state to regulate. This bias must also be considered.

Sean Pillai, Afghan Women's Human Rights: A Legal Analysis of Constitutional Governance vs. the Taliban Rule. Afghanistan’s history of political turbulence and violent turmoil have repeatedly challenged the legal and social status of women. Afghanistan attempted to rebuild as a democratic nation and included rights to protect women. Under the 2004 constitution, women gained significant legal rights, such as access to education, safety and freedom of movement and employment opportunities, marking a stark contrast to the Taliban's earlier reign (1996-2001). However, the progress made was curtailed with the withdrawal of U.S. forces in 2021 and the Taliban return to power. This analysis will address the shift in legal protections and the impact on societal roles for women contrasting the two eras: the 2004 constitutional government and the Taliban regime 2021 to present. By comparing the legal frameworks and implementation of women's rights in key domains such as women's access to education, safety and freedom of movement, and women's access to employment, this paper seeks to provide an understanding of the impact the two legal systems have on women.

Shiloh Worthington, The Digital Services Act vs. Section 230: The Western Hemisphere's Battle Against Misinformation. The European Union and the United States have both recognized the disparate effects of rampant and unchecked misinformation spreading across the internet. However, each has a distinct approach to combatting this epidemic of troublesome content. The EU battle against misinformation is best exemplified by the recently passed Digital Services Act (DSA), which places the primary responsibility of stopping the spread on the platforms themselves. Meanwhile, in the United States, the struggle to fight misinformation is at odds with the First Amendment rights of the platforms. Section 230 of the Communications Decency Act offers platforms total immunity for their misinformation content-removal practices, no matter how it conflicts with individual freedom of expression. Further conflict arises as the EU's DSA attempts to force American-based platforms with European audiences to comply with its content-removal practices under misinformation-related pretenses, even if doing so would remove American citizens' content otherwise protected by the U.S. Constitution.

Watch for these students on upcoming bar pass lists in a state near you!

Flags from Flagpedia, except Afghanistan Taliban from Wikimedia Commons, all public domain.

Wide-ranging social commentary in Peele's 'Wendell & Wild' pillories privatization, school-to-prison pipeline

Released by Netflix in October 2022, Wendell & Wild is a delightful stop-motion horror animation and none-too-subtle commentary on the school-to-prison pipeline.

Jordan Peele and Henry Selick co-produced and co-authored Wendell & Wild, which is based on an unpublished book by Selick and Clay McLeod Chapman. Comedic genius Peele was fresh off Nope (2022), which I thought was much better than the confused Get Out (2017), though the newer film won zero Academy nods to the earlier's screenplay win and three noms in 2018. Selick is a Hollywood legend, but doesn't perennially produce new work for our pleasure. He co-masterminded The Nightmare Before Christmas (1993) and James and the Giant Peach (1996) in the animation vein, and he did the visual effects for a favorite film of mine, the quirky and underrated Life Aquatic with Steve Zissou (2004).

Wendell & Wild follows teenager Kat (Lyric Ross, Déjà on This Is Us) as she battles demonic forces, including an eponymous demon pair (voiced by Peele and comedy partner Keegan-Michael Key), intent on evil works, including construction of a prison, in the down-on-its-luck earthly town of Rust Bank. Critics harshed on the film for jamming too much social commentary into one vehicle, and, admittedly, Wendell & Wild fires head-spinningly at innumerable targets.

To me, that's the fun of it. Race, education, employment, the institutional church, and the criminal justice system only outline the low-hanging fruit. Through subtleties such as plot device, semantics, and imagery, the film digs deep into nuances, even the socioeconomic layers of natural hair.

Whatever your pet peeve of social dysfunction, you can find it in Wendell & Wild, which is why I first saw the film as a commentary on transparency and accountability in urban development. The demons and their mortal allies are in the privatization-of-state-services game. They plan to build a prison that will do nothing in the way of rehabilitation alongside schools that will do little in the way of education, as building each institution to serve its purpose would be bad business for the other.

What I was inclined to see as a problem in freedom-of-information law, informed as I was by a former student's recent publication on private-prison abuse in Arizona for The Journal of Civil Information, to be fair, is just one angle on the broader problem of the school-to-prison pipeline. In this vein, I shared a scene from Wendell & Wild with my law students.

It happened that Jose Vazquez, communications director for the ACLU of Alabama, keyed in on the same scene and posted it to Twitter (embed below). In the scene, mean-girl ringleader Siobhan (Tamara Smart) starts to put together the evil plot of her parents, urban development power couple Lane and Irmgard Klaxon (David Harewood and Maxine Peake), owners and directors of Klax Corp. How sweet is that multiplicitous naming?

This clip is a spoiler but I really hope it can be used in classrooms and just generally shared because we all need to learn how prisons ruins people's lives, families, and entire towns! We can all imagine better futures and this film does a great job illustrating that. pic.twitter.com/Y2TS31lkAd

— jose bouquet (@josebouquets) October 29, 2022

Wendell & Wild is worth the watch. As Vazquez wrote of the above clip on Twitter, "I really hope it can be used in classrooms."

Sunshine filters in to Mass. jail with gloomy history

Bristol County, Mass., Sheriff Paul Heroux is seeking to close a jail with a gloomy history, and last week he gave journalists a look inside.

Built in 1888, the Ash Street Jail in New Bedford, Mass., housed Lizzie Borden during the 1893 trial in which she was acquitted of killing her father and stepmother. The "Lizzie Borden House" is a tourist attraction in nearby Fall River, Mass., today. Undoubtedly the site of executions in Bristol County, Ash Street is often said to be the site of the last public hanging in Massachusetts, in 1898. Records conflict (compare O'Neil with O'Neill, and see Barnes), but if it's not, it's close enough. The commonwealth changed its method of execution to the electric chair in 1900.

Purchase St., New Bedford, Mass., 1888.
Whaling Museum photo via New Bedford Guide.

One of the oldest jails in continuous operation in the United States, Ash Street gained new notoriety beginning in the late 20th century, especially after 1997 during the tenure of Sheriff Thomas Hodgson. In 25 years of service as sheriff, after prior service in local politics, Hodgson earned national press for hardline measures such as the removal of televisions and gym equipment from the jail, the imposition of room-and-board charges for detainees, the institution of chain gangs, and an offer of detainee labor to the Trump Administration to help build the border wall.

Meanwhile, Hodgson was unapologetic for conditions within the jail. Former detainees complained of uncontrolled mold, uncontained sewage, and intolerable cold and heat (WBUR). The complaints have been controverted. A former jail official lauded staff and facility in a 2022 letter to the New Bedford Guide, for example, and a news reporter, upon a tour of the facility in 2016, wrote favorably of a modernized interior.

When Heroux toppled Hodgson in the 2022 election, closing the Ash Street Jail was part of his platform.

President Trump and Sheriff Hodgson at the White House, 2019.
Trump White House Archives via Flickr (public domain)

Former Sheriff Hodgson is reminiscent of an infamous character in the annals of freedom of information law, Sheriff Thomas Lafayette Houchins, Jr., of Alameda County, California. Houchins lent his name to Houchins v. KQED, Inc., a 1978 U.S. Supreme Court case regarded generally as standing for the proposition that the First Amendment does not articulate a right of access to public places, if not more broadly foreclosing use of the First Amendment as any kind of freedom of information act.

In my 2012 casebook, Law of Access to Government, I contextualized Houchins with some biographical information about the sheriff (relying on sources such as the East Bay Times).

Thomas Lafayette Houchins, Jr., was a leader in the sheriff 's department in the 1960s and earned a reputation for uncompromising law enforcement. A veteran law enforcement officer, Houchins had joined the department in 1946 after serving in World War II as a Marine Corps fighter pilot. He was elected sheriff in 1975 and retired in 1979. In 1969, Houchins commanded a force of sixty or more deputies in crowd control at what became an infamously tragic concert headlined by the Rolling Stones. He recounted thirty years later: "Some guy jumped off an overpass because somebody told him he could fly. They lied. Another jumped into the [Delta Mendota Canal] because they told him he could swim. They lied to him, too.... I think we had five deaths and five births, so we came out even." Houchins died at his California home in 2005.

The Houchins case centered on news media investigation of the Santa Rita jail. Reporters wanted to tour "Little Greystone," a part of the jail in which "shocking and debasing conditions" were alleged to have caused inmate illnesses and deaths.

Houchins is one of a family of First Amendment access cases in which the Burger Court put the brakes on the liberal interpretations of the First Amendment that characterized the civil rights era. However, to the dismay of President Richard Nixon, who appointed him, Chief Justice Warren Burger was only marginally effective in rallying the Court to reverse the civil rights direction of the predecessor Earl Warren Court.

Houchins reflects that equivocation. Though Houchins's bar review flash card might read simply "no 1A access to public places," the decision came from a fractured Court of only seven justices and an opinion of only three. Harry Blackmun and Thurgood Marshall did not participate, the former having had recent surgery and the latter recusing. Burger was joined by only two others, including his successor as Chief Justice, William Rehnquist, in the opinion of the Court. They formed a majority of four with the addition of Justice Potter Stewart. (Read more about the fracas behind the scenes from Matthew Schafer.)

Concurring, Stewart joined Burger's conclusion on the facts of the case; he had been the author of two prior Court decisions, in 1974, rejecting press access to prisons or prisoners. Yet in his opinion in Houchins, he speculated that media might articulate a First Amendment claim on better facts. With three dissenters arguing at least as much, thus outnumbering the Burger contingent, Houchins arguably left the jailhouse gate open to a First Amendment theory, if you'll forgive the metaphor. Media law aficionados will recognize a pattern akin to Branzburg v. Hayes (1972), in which similar equivocation on the Court, aided later by clever advocacy from media lawyers, left the problem of constitutional reporter's privilege in disarray.

Much of the dispute in Houchins can be characterized as a frame-of-reference problem. In its broadest frame, Houchins is about public access to places to hold public officials accountable. That seems reasonable. But when I teach Houchins, students are quick to find the media position untenable, reading the case more narrowly as about reporters demanding access to any part of the prison, perhaps even with minimal advance notice.

That dichotomy in framing plays out in the public protests and media frustration over access to the Ash Street Jail in recent decades. There were tours; the writer who toured Ash Street in 2016, cited above, was then a reporter for public radio WBUR. Just like in Houchins, protestors and former detainees of the facility complained that public tours were limited and staged, showing reporters only what officials wanted them to see. Officials said that wider public access would jeopardize the security of the facility and the people inside, both detainees and workers.

The theoretical solution that emerged from Houchins, such as the case held, is that supervision of "non-public public places" should be accomplished not through the free press of the First Amendment, but through political accountability at the ballot box. To some degree, that's what happened when Heroux became sheriff in 2022. At the same time, prison conditions raise a peculiar problem in majoritarianism, familiar in criminal justice and civil rights contexts, and resonant in debate today over policing: The political system is not a reliable way to protect the rights of jailed persons, a minority class widely regarded with little sympathy.

On balance, I don't know whether the truth of the Ash Street Jail is closer to the horrifying complaints of former detainees or to the confident assurances of public officials. Whether constitutionally or statutorily, sunshine must be allowed to penetrate prison walls.

'Behind Bars': Petroff article explains how secrecy shields private prison labor from public scrutiny

Alyssa Petroff, a judicial law clerk at the Supreme Judicial Court of Maine, has published Behind Bars: Secrecy in Arizona’s Private Prisons’ Labor Pool in the new volume 4, number 2, of The Journal of Civic Information.

In a foreword, Journal Editor David Cuillier, professor of journalism at the University of Arizona, wrote,

Alyssa Petroff educated me on the exploitative private for-profit prison complex in my home state of Arizona—shrouded in secrecy because of a public records law interpreted in favor of corporations. I was astounded by her research findings.... She has a great career ahead of her, based on the eye-popping revelations in Behind Bars....

An Arizona native and 2022 law school graduate, Petroff started work on the article with a paper in my Freedom of Information Law class. Her finished work won the 2021-2022 student writing competition of The Journal of Civic Information, an honor co-sponsored by the Brechner Center for Freedom of Information and accompanied by a $2,000 cash prize.

Here is the abstract:

Prisons run by private corporations in the United States have at hand a pool of individuals who are, by law, required to work while they are incarcerated. This article examines the secrecy behind the use of inmate labor, including on-the-job injuries  sustained by prisoners, focusing on the state of Arizona as a case study. Ultimately, the  article recommends that states create oversight boards of private prison systems or allow private prison records to be accessible through already existing public records laws.

Attorney Petroff was a student also in my Comparative Law class. So I benefited immensely and from her presence and participation, ceaselessly inquisitive and gracious, in law school. I share Professor Cuillier's enthusiasm for her budding career as she cuts her teeth in judicial writing at the Maine high court.

The article, again, is Alyssa Petroff, Behind Bars: Secrecy in Arizona’s Private Prisons’ Labor Pool, 4:2 J. Civic Info. 1 (2022).

Lawsuit alleges excessive force against federal immigration detainees held near public law school

⚠ Warning: indecent language.

Latino detainees of the Bristol County House of Corrections, which is located just three-quarters of a mile from the University of Massachusetts Law School, sued the county sheriff and Immigration and Customs Enforcement, alleging serious physical abuses.

Filed in April, the complaint, stating Bivens and § 1983 claims for excessive force, is available from the federal district court docket at Court Listener. The factual allegations detail incidents of violence and some not so flattering quotations of officers, such as: "Shut the fuck up. You bitches are a bunch of immigrants without papers. You have no rights."

Sheriff Hodgson shakes hands with former President Trump
at a White House event recognizing sheriffs in 2019.
(Official White House photo by Joyce N. Boghosian via Flickr.)

Named in the lawsuit is Bristol County, Mass., four-term "tough on crime" Sheriff Thomas M. Hodgson. This lawsuit is not his first tangle with unsavory allegations.

A 2020 report by the office of Attorney General Maura Healey determined that authorities employed excessive force in violation of the civil rights of federal immigration detainees (press release). New Bedford, Mass., tort lawyer Betty I. Ussach has written letters to local media complaining of the high cost of defending Hodgson's style of criminal justice (EastBayRI, Dartmouth Week Today).

But in past years, Hodgson's name recognition has seemed to work a no-publicity-is-bad-publicity magic in his reelection bids. Hodgson faces a slate of challengers this year.

I wonder whether the geographic juxtaposition of the Bristol prison and the Immigration Clinic at the state's only public law school is not telling of state conflict-of-interest policy, which would complicate if not prohibit clinic litigation against state and local actors. 

Clinic director Professor Emerita Irene Scharf retired just one one month ago. She exited amid some turbulence over how and even whether the law school would take responsibility for existing clients. It remains to be seen what the clinic will look like under new management. Scharf and sociology and anthropology Professor Lisa Maya Knauer have labored diligently for decades on behalf of the immigrant Latino community in south coast Massachusetts. But university personnel at Dartmouth, Mass., far from the aegis of the "flagship campus" at Amherst, must tread lightly in politically sensitive matters, lest they jeopardize the very existence of the system's less favored locations.

The present lawsuit, Morocho v. Bristol County Sheriff's Office (D. Mass. filed Apr. 29, 2022), was filed by Washington, D.C.-based NGO Rights Behind Bars and signed by its Boston-based litigation director, attorney Oren Nimni. Nimni is a graduate of Northeastern Law and an adjunct professor at Suffolk Law. So let the record reflect that monied Boston private law schools can make grief for public officials, too.

'Civil death,' denial of tort claims, violates prisoners' right of access to courts, R.I. high court holds

N.C. State Archives public domain photo via Wikimedia Commons

The Rhode Island Supreme Court in March struck down the state "civil death" statute, which disallowed civil claims by inmates imprisoned for life.

The statute at issue states:

Every person imprisoned in the adult correctional institutions for life shall, with respect to all rights of property, to the bond of matrimony and to all civil rights and relations of any nature whatsoever, be deemed to be dead in all respects, as if his or her natural death had taken place at the time of conviction. However, the bond of matrimony shall not be dissolved, nor shall the rights to property or other rights of the husband or wife of the imprisoned person be terminated or impaired, except on the entry of a lawfully obtained decree for divorce.

Alleging negligent maintenance, one plaintiff-inmate complained "that his arm was severely burned and permanently disfigured when he made contact with an exposed hot water pipe at the [prison]." Another alleged negligence when he slipped and fell after being compelled "to walk across an icy walkway at the [prison]." The trial court rejected both claims as barred by the "civil death" statute.

I was shocked to read of this case in my home state's Providence Journal; I never had heard of a "civil death" statute. The R.I. ACLU provided some background:

Rhode Island was apparently the only state in the country still enforcing a law like this, whose origins date back to ancient English common law. As far back as 1976, a court struck down Missouri's civil death statute, noting that "the concept of civil death has been condemned by virtually every court and commentator to study it over the last thirty years." The court observed that such laws had been characterized even before then as "archaic," "outmoded," "an outdated and inscrutable common law precept," and "a medieval fiction in a modern world." In 1937, when 18 states still had civil death laws, a law review article called the concept "outworn."

Applying the 1843 state constitution (article 1, section 5), a four-justice majority of the Rhode Island Supreme Court had little trouble reaching the conclusion that I thought was obvious, that the law violates the fundamental due process right of access to the courts.

Justice Lynch Prata
(via Ballotpedia)

Employing strict scrutiny, the court acknowledged that "civil death"

functions as an additional sanction imposed upon some of the state's worst criminals and furthers the goals of punishment and deterrence. This Court has recognized that "[t]he loss of civil status as a form of punishment is a principle that dates back to ancient societies." .... However, it is our opinion that this particular additional punishment is not a compelling reason to override the right of access to the courts that is textually guaranteed by the Rhode Island Constitution.

Justice Goldberg
(via Ballotpedia)

Even were the statute supported by a compelling state interest, it is not narrowly drawn, the court further opined, as it fails to distinguish between prisoners based on their eligibility for parole.

Justice Maureen McKenna Goldberg dissented. "Prison inmates, especially life prisoners, are not entitled to the same degree of constitutional rights as are members of society at large," she wrote, "and that includes the right to bring tort claims against the warden for a slip and fall or a burned hand." She would have narrowed the question to the plaintiffs' negligence claims and upheld the statute.

"In my more than two decades of service on this Court, I cannot recall ever having declared a statute to be unconstitutional," Justice Goldberg opined. "[T]his should not be the first case with such a drastic result in light of our longstanding jurisprudence."

The case is Zab v. R.I. Department of Corrections, No. 2019-459-Appeal (R.I. Mar. 2, 2022). Justice Erin Lynch Prata wrote the majority opinion.

A former state senator Judge Prata was nominated to the court by Governor Gina Raimondo in December 2020, just three months before she left office to become the U.S. Secretary of Commerce. Justice Lynch Prata is 2000 graduate of Catholic Law, for which I periodically teach as a visitor. Judge Goldberg is the senior-most justice on the court, having served since her appointment in 1997.

Incarcerated persons have access to information in Massachusetts law, court confirms, but not in all states

Image by Ichigo121212 from Pixabay

A man imprisoned for murder has a right of access to public records no less than anyone else, the Massachusetts Appeals Court held in the summer.

Nine years ago, Adam Bradley was co-perpetrator of a home invasion in Billerica, Massachusetts, northwest of Boston, in which 22-year-old resident Quintin Koehler was shot and killed.  The crime was tied to the Bloods gang, according to The Boston Globe.  In 2017, at age 32, Bradley was convicted of first-degree murder and sentenced to a life term.

Lately, Bradley has used the Massachusetts Public Records Law (PRL, or FOIA) to investigate his conviction by requesting police records.  He alleged in a lawsuit that the State Police records access officer (RAO) failed to respond to multiple PRL requests.

In court, the RAO resisted production under the PRL on two grounds, (1) the ongoing investigation exemption of the PRL and (2) the parallel availability of records to Bradley in criminal discovery.

The Appeals Court soundly rejected both state arguments.  On the first ground, RAO overreached by declaring the entirety of the case file within the investigation exemption.  On the second ground, the PRL operates independently of parallel access in criminal process, the court held.  The RAO anyway owed Bradley a response asserting grounds for non-production.  The state public record supervisor twice ordered the RAO to respond.

The court holding accords with state freedom-of-information norms; the most noteworthy point of the case is that an appeal was required.  As in other states' FOIA exemptions for ongoing investigations, the Massachusetts PRL requires record-by-record review, redaction for partial production when possible, and, if necessary, in camera inspection by the trial court in a legal challenge.

The problem of parallel access is somewhat more vexing, though still should not have confounded the RAO.  Some states expressly exclude active litigants from FOIA uses that might subvert judicial procedure.  But such exclusions, which are far from universal, typically do not bar post-conviction access in criminal matters, even with ongoing appeals.  The RAO in the instant case relied on regulatory language that faintly suggested discovery exclusivity, and the court properly dispelled that theory.

Parallel access questions are thornier when there are state regulatory mechanisms in play that arguably supersede state FOIA as a matter of legislative intent, especially in the area of business regulation.  For example, a statutory framework for state contracting might regulate disclosure and non-disclosure of records maintained by the contractor or submitted to the state, arguably superseding FOIA access.  Even then, the rule of statutory construction that FOIA access is to be construed liberally and FOIA exemptions to be construed narrowly usually makes FOIA a trump card.  Bradley's case presented no such wrinkle.

The case is noteworthy also for a rule that is not at play.  Massachusetts is not one of the states that has limited or simply disallowed FOIA use by prisoners.

The Arkansas Department of Corrections (DOC) lobbied successfully for an amendment to the Arkansas FOIA in 2003 to exclude incarcerated felons from the state definition of "citizen."  Access advocates, including me, managed at that time to negotiate the exclusion down to only DOC records and pro se requests, allowing attorney-representatives to make requests.  Eight years later, the exemption was amended to eliminate the DOC limitation.

It was difficult to advocate for prisoner access.  Incarcerated felons are not a popular constituency and don't vote.  And to be fair to state officials, many dilatory and hardly comprehensible requests emanate from prisons and tie up public resources with no clear public benefit.  At the same time, of course, persons deprived of liberty are susceptible to human rights abuses for which accountability is notoriously elusive.  Michigan public radio in 2016 explored the problem of prisoner civil rights in the absence of access to information in that state's law.

The Massachusetts case is Bradley v. Records Access Officer, No. 20-P-419 (Mass. App. Ct. 2021).  Justice Gregory I. Massing authored the opinion for a unanimous panel also comprising Justices Henry and Ditkoff.  Before appointment to the bench in 2014, Justice Massing served as executive director of the Rappaport Center for Law and Public Service, and previously as general counsel for the state's Executive Office of Public Safety and Security.

FOIA committee ponders access amid privatization

I had the great privilege last week to speak to the U.S. Freedom of Information Act (FOIA) Advisory Committee, working under the aegis of the Office of Government Information Services (OGIS) in the National Archives and Records Administration (NARA) on the subject of access to the private sector in the public interest.

The OPEN the Government Act of 2007 augmented FOIA to follow public records into the hands of government contractors.  But the federal FOIA's reach into the private sector remains extremely limited relative to other access-to-information (ATI) systems in the United States and the world.  U.S. states vary widely in approach; the vast majority of state open records acts reaches into the private sector upon some test of state delegation, whether public funding, function, or power.  The same approach predominates in Europe.

The lack of such a mechanism at the federal level in the United States has resulted in a marked deficit of accountability in privatization.  The problem is especially pronounced in areas in which civil rights are prone to abuse, such as privatized prison services, over which the FOIA Advisory Committee and Congress have expressed concern.  By executive order, President Biden is ending the federal outsourcing of incarceration.  But access policy questions remain in questions about the past, in waning contracts, and in persistent privatization in some states.

As I have written in recent years, and examined relative to ATI in the United States, Europe, and India, an emerging model of ATI in Africa advances a novel theory of private-sector access in the interest of human-rights accountability.  I was privileged to share this model, and the theory behind it, with the committee.  I thank the committee for its indulgence, especially OGIS Director Alina Semo for her leadership and Villanova Law Professor Tuan Samahon for his interest in my work now and in the past.

Policy behind 'home confinement' as criminal sanction has evolved, law grad writes in transnational journal

A graduate of my Comparative Law class and our outgoing Student Bar Association President, Markus Aloyan, J.D. '20, has published a research article on criminal home confinement in the Trento Student Law Review.

Despite the mention of, and my current feeling of, home confinement, I didn't think that the article is related to the pandemic.  And then, lo and behold, college admission scandal perpetrators started staying home (e.g., USA Today, N.Y. Post, L.A. Times).

Here is the abstract.

Markus Aloyan

Home confinement, also known as house arrest or home detention, first appeared in the United States in the 1970s as a form of pretrial release issued after a defendant's indictment. Today, this alternative sentencing scheme possesses several additional purposes. Home confinement is imposable as a form of supervised release from incarceration and as a term of parole. More importantly, it has evolved into a condition of probation and an autonomous criminal sanction that serves in a capacity independent of probation. This article aims to show that although historically spurred in large part by the practical deficiencies of the American prison system (namely its overcrowding and excessive costs), the study of home confinement actuation promulgates a broader understanding of its effectiveness in the promotion of rehabilitation and the prevention of recidivism. Psychological and fiscal aspects will be analyzed with domestic and international (New Zealand) considerations. Concurrently, this paper draws attention to the margin of judicial discretion afforded in shaping individual home confinement implementations, and discusses its advantages and related concerns.

The article is Markus Aloyan, Home Confinement in the United States: The Evolution of Progressive Criminal Justice Reform, 2:1 Trento Student L. Rev. 109 (2020).