Justice in America: Diverting the Mentally Ill


By Matthew J. D’Emic[1]


It has been a rough year for the criminal justice system in America. Racially charged confrontations in various jurisdictions have caused citizens to question both the substantive and procedural fairness of our justice system. Calls for reform of the grand jury process, court transparency, and other facets of the criminal justice system sound far and wide. Protestations of “no justice, no peace”—an accusation of systemic injustice—echo across the country.[2]

Legal scholars decry the shortcomings of judges and judging. One claims “misjudging is more common, more systematic, and more harmful than the legal system has fully realized.”[3] Yet another presumes “judges generally are prone to error because of . . . informational, cognitive, and attitudinal blinders,” concluding, “I do not think that the vast majority of trial judges are good . . . .”[4]

In fact, no less a personage than presidential candidate Hillary Clinton recently stated in an interview:

I believe we need to end the era of mass incarceration. If you compare arrest records in, you know, in charging crimes, in sentencing for crimes, you compare African-American men to white men, it is as unfortunately clear as it could be, that there is a bias in favor of white men.[5]

So there it is. A bad year for the reputation of the justice system in general and judges in particular. Whether one agrees with it or not (and it is nothing new), or agrees with it in part, judges and the justice system cannot lose the trust of the citizenry without dire consequences. Trust is key to the effectiveness of the third, non-political branch of government.

Against this backdrop of mistrust I would like to present to the reader the history and future of a quiet evolution in the justice system—one which I believe bolsters trust in the justice system: the mental health court.

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The Issue is not the Issue

The Issue Is Not the Issue

Sara AbiBoutros[1]

The use of public space to peacefully assemble is essential to the success of any social movement fighting for social justice. Without a space for people to come together, it would be impossible to engage with one another, to plan, and to make our civil disobedience visible to the public. The convergence of public and private institutions to curtail the use of space to quash free speech is evident through the repression of the Free Speech Movement (“FSM”) in the 1960s and Occupy Wall Street (“OWS”) in 2011. At their core, the FSM and OWS were both protesting the socio-political landscape and the power structure. Both movements used symptoms of this larger issue, such as limiting free speech and the use of public space, to create such tension that society could no longer ignore injustice. Through this approach they were able to gain political concessions; but more importantly, they radicalized previously non-politically active individuals and changed the way people think.

The FSM was able to galvanize support through confrontations with a university’s administration,[2] while OWS attempted to create the world in which it envisioned. Different ideologies of civil disobedience played a part in shaping the movements and the tactics they chose to utilize. Off-shoots of OWS, such as Occupy Sandy and Strike Debt, show that the principles of the movement could be used as a model to achieve tangible successes in multiple arenas.

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The Environmental Crisis of the 2003 Iraq War: A Moral Obligation or a Mandatory Measure Under International Treaties

The Environmental Crisis of the 2003 Iraq War: A Moral Obligation or a Mandatory Measure Under International Treaties

By Ramy A. Ibrahim1

The 2003 Iraq War has left a long-lasting detrimental impact on the lives of Iraqis. Aside from the highly destructive sectarian divide, political instability, and stunted economic development, both the United States and the Iraqi Governments have failed to address the environmental contamination that resulted from the military munitions used during the war.2 This article focuses on the effects of that contamination, the reaction both governmental systems have taken, how these actions constitute violations of various international treaties, and also calls for action.

Studies have linked the highly radioactive environmental contaminates left behind by the war to dramatically increasing rates of cancer, birth defects, and other illnesses—including respiratory and neurological ones—in all affected areas.3 Iraqi women and children continue to live in these hazardous conditions and are constantly exposed to these left-over toxic munitions and carcinogenic waste.4 The failure of the U.S. and Iraqi Governments to take sufficient measures to decontaminate the affected areas, and to provide healthcare services for affected persons constitutes a blatant violation of a number of international treaties, including, but not limited to: the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),5 the Convention on the Rights of Persons with Disabilities (CRPD),6 and the Convention on the Rights of the Child.7

I. Violation of International Treaties

Under these international treaties, the U.S. remains directly responsible for the human rights violations that took place during, or as result of, the Iraq War.8 The Human Rights Committee explained in General Comment 31 on the International Covenant on Civil and Political Rights that “the enjoyment of Covenant Rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality . . . who may find themselves in the territory or subject to the jurisdiction of the State Party.”9 The Committee added further that “[t]his principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory.”10 Additionally, the State Party’s responsibility extends to persons or places beyond the State Party’s control when the State Party was a “causal link” in the chain in the violation and if the State Party had knowledge and foresaw the violation.11 From this, it is evident that both the U.S. and Iraq have violated these treaties and have a responsibility to remedy this issue.

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E-Discovery in Criminal Defense: Challenges of Pretrial Detainee Access

E-Discovery in Criminal Defense: Challenges of Pretrial Detainee Access

By Emilee A. Sahli 1

I. Introduction

Imagine that you are a criminal defense attorney and your client is being charged with a felony, denied bail, and held in pretrial detention on federal drug charges. It could be years before your client has an opportunity for trial. In the rare event that your client decides to hold out against pressures to accept a plea agreement, your client’s ability to participate in their own defense is extremely limited by the conditions of their confinement. Any reasonable penological explanation for restricting their access to calls or meeting with you to review evidence in the law library and otherwise participate in the investigation process will be constructively unchallengeable in court.

Imagine, instead, that you have another client—one facing various federal charges for fraud and embezzlement—who has been granted, and was able to post bail. This client may also wait years for trial. However, they will not have the same restrictions on their ability to participate in their own defense as your client held in pretrial detention. This client would have the freedom of movement and the time and resources to communicate more openly with you and your staff, to review discovery, and to overall assist in the investigation and discovery review process. This discrepancy in the rights of those detained pretrial and those who are offered and able to post bail is especially stark in complex cases involving large amounts of discovery, often taking the form of electronic discovery.

The original purpose of pretrial detention and the setting of bail was to ensure that the person return to court to face the charges against them. However, pretrial detention has evolved out of concerns for public safety based upon the judge’s assessment of the defendant’s dangerousness. Regardless of the purpose for pretrial detention, this imbalance of opportunity for the accused to participate in their own defense ought to be challenged in order to preserve constitutional due process rights. If our criminal justice system is to preserve any meaning to the presumption of innocence, legal counsel must be aware of the unique challenges faced by their clients that are detained pretrial.

This article gives an introduction to electronic discovery in federal criminal litigation and explores the unique challenges that pretrial detainees face in accessing electronic discovery. The rise of electronic discovery requires that attorneys become aware of the complexities surrounding this form of discovery in order to adequately represent their clients’ interests.

First, the article provides background information as to what electronic discovery is and the current state of pretrial detention in federal criminal cases. Second, the article lays out some of the various challenges in accessing electronic discovery for pretrial detainees. Finally, the article opens a discussion surrounding potential solutions by exploring efforts by the facilities themselves as well as potential legal strategies for litigation over the unique challenges of pretrial detainees in accessing electronic discovery.

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Article: These Parks Are Our Parks

These Parks Are Our Parks

An Examination Of The Privatization Of Public Parks In New York City And The Public Trust Doctrine’s Protections

By Thomas Honan 1


The Great GoogaMooga, advertised as “an amusement park of Food, Drink, & Music” was a music, artisan food, and drink festival in Prospect Park.2 GoogaMooga lasted two days during the summer of 2012 and three days during the summer 2013,3 and demonstrates the negative impact of private use on public space.4 The Prospect Park Alliance, a non-profit organization founded to raise private funds to supplement the financing of Prospect Park,5 and Superfly, a privately owned music festival company, organized GoogaMooga. 6 The festival was strategically placed in Nethermead Meadow, a lovely tree-lined meadow located in the center of the park.7 Nethermead Meadow is traditionally used by the public for dog walking, tossing a football, and gathering with friends for a picnic, the leisure activities one would expect to take place in a park meadow. Over the three-day event, Nethermead Meadows played host to approximately 120,000 people, and accommodated approximately 75 restaurant stands, 65 drink stations, and two stages where 20 bands performed.8 As one Prospect Park local aptly put it, “It’s like bringing a boombox into a library – it doesn’t belong there.”9

The festival was intended as a fund-raising opportunity for the park.10 The idea was that the event would raise sufficient funds to provide a benefit to all the park users.11 Instead, the festival resulted in the destruction of the Nethermead Meadow and prevented the public from its use for a month after it ended.12 Additionally, the festival was promoted as a community event.13 The Great GoogaMooga website explains: “And that’s why The Great GoogaMooga is more than a festival. It’s a community brought together by a shared passion.”14 However, many of the communities surrounding the park were unable to attend because of the high admission cost of $79.50,15 and the Nethermead Meadow prevented non-ticket holders from access by way of a fence.16 The most disturbing aspect of The Great GoogaMooga experience is that in consideration for allowing the park’s use, The Prospect Park Alliance received a mere $75,000.17 Essentially, the festival was intended to provide a substantial benefit to the public and promoted itself as a community event, when in reality the surrounding community lost part of its park for a month.

The GoogaMooga experience illustrates the effects privatization can have on the public’s use of its parks. Public parks are areas of land that are dedicated to be used for the public interest.18 Since the 1970s, there has been a steady trend toward the privatization of public parks in New York City.19 Over the past ten years, new models of privatization have emerged, and, more than ever, the public is in danger of losing out on its use of parks.20 This trend corresponds with a substantial decrease in state and city funding for public parks.21 Since 2008, the City has slashed its overall maintenance and operation of parks budget by 21%.22

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The Seward Park Urban Renewal Area

The Seward Park Urban Renewal Area, Forty-five Years Later:
Affordable to Whom?

By Eugene Chen

I. Background

From the 1950s through the 1960s, two thousand families with low incomes were displaced from their homes when the City of New York embarked on an urban renewal plan targeting the area east along Delancey Street at the foot of the Williamsburg Bridge, otherwise known as the Seward Park Urban Renewal Area (SPURA).1 Forty-five years later, the “Seward Park Slum Clearance Project” left 165 million square feet of parking lot space, devoid of any signs of human occupation aside from the coming and going of vehicles. After a contentious community debate, the City Council passed a resolution (the “Resolution”) on October 11, 2012, for a mixed-use plan to develop SPURA.2 Proposals were due to the New York City Economic Development Corporation (NYCEDC) on May 6, 2013, and on September 18, 2013, Mayor Bloomberg announced that Delancey Street Associates LLC, a joint venture composed of L+M Development Partners, BFC Partners, and Taconic Investment Partners, had been selected to develop the site.3 The plan calls for 60/40 residential and commercial development, with 500 units of permanently affordable housing, out of the 1000 units of housing being built.4 In all likelihood, the developer chosen to develop SPURA will apply for the 421-a tax exemption, an incentive intended to encourage the construction of market-rate and affordable housing in New York City (the “City”).

The decision by the City to develop SPURA forty-five years later galvanized community groups and residents in Manhattan Community Board 3 (“CB3”), a neighborhood historically made up of low-income immigrants, who wanted to ensure that the project would benefit the community and not just enrich private developers.5 Though community boards did not exist6 when the City razed the area it deemed a “slum” in the 1960s, it was at community board meetings and hearings that the community voiced demands for more affordable housing, the construction of more schools in a burdened school district, prevailing wage jobs, and a ban on big-box stores in the plan for SPURA. This paper will examine the meaning of “affordability,” as defined by the U.S. Department of Housing and Urban Development through the concept of Area Median Income, the alternative definition of affordability known as Local Median Income, and the role of the 421-a Real Property Tax Exemption in the creation of affordable housing.

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Case Comment: United States v. Alvarez (2014)

Where Are You Going, Where Have You Been? Seriously, Let Me See Your GPS.

Warrantless Search of GPS Device Held Constitutional: United States v. Alvarez, 8:13-cr-009 (N.D.N.Y. 2014)

By Rajendra Persaud 1

            Technological advances continue to confound already dense fourth amendment jurisprudence. As modern devices become more powerful, the information stored and accessed within raises new issues that did not exist only a few decades ago. As such, new technological devices have the potential to create cases of first impression upon the courts. Recently, in U.S. v. Alvarez, Judge McAvoy ruled warrantless searches of cell phones unconstitutional in the absence of exigent circumstances or a need to protect officer safety.2 The opinion compared cell phones to modern computers3 that house a wealth of private information within4 (akin to personal residences5). Thus, the smart phones were granted protection similar to computer hard drives6 and all information obtained from the seized phones was suppressed.7

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VAWA @ 20: Index

VAWA @ 20 – Index

Introduction – Nishan Bhaumik on the history of the Violence Against Women Act’s passage and reauthorization and the goals of the VAWA @ 20 series.

VAWA After the Party: Implementing Proposed Guidelines on Campus Sexual Assault Resolution – Mary P. Koss and Elise C. Lopez of the University of Arizona on the effect of existing and proposed VAWA guidelines on the process for sexual assault adjudication at institutions of higher education.

Roll Back “Prison Nation” – Donna Coker, Professor of Law at the University of Miami School of Law, on VAWA’s contribution to hyper-incarceration.

Raising the Visibility of the Margins and the Responsibility of Mainstream – Marcia Olivo, Sisterhood of Survivors/Miami Workers Center, and  Kelly Miller, Idaho Coalition Against Sexual & Domestic Violence, on the need to expand VAWA in order to guarantee protections for marginalized communities.

HIV, Violence Against Women, and Criminal Law Interventions – Aziza Ahmed, Associate Professor of Law at Northeastern University School of Law, on HIV/AIDS and the negative consequences of the criminal law approach to sex trafficking.

Art, Violence, and Women – Yxta Maya Murray, Professor at Loyola Law School, on how visual art can inform the feminist legal process.

The Politics of Pretext: VAWA Goes Global – Deborah M. Weissman, Reef C. Ivey II Distinguished Professor of Law, University of North Carolina School of Law, on VAWA International (I-VAWA), Congress’s attempt to expand U.S. influence in the realm of violence against women as a matter of foreign policy.

Building the Knowledge Base: Research Funding through VAWA – Claire M. Renzetti, of the University of Kentucky, Rebecca M. Campbell, of Michigan State University, and Allison Adair, of the University of Kentucky, on the substantial increase in empirical studies of the causes and consequences of violence against women, as well as research on responses to both victims and perpetrators.

Stalled at 20: VAWA, the Criminal Justice System, and the Possibilities of Restorative Justice – Leigh Goodmark, Professor Law at the University of the Maryland Francis King Carey School of Law, on restorative justice and the failure of VAWA to provide abuse survivors with alternative venues for seeking justice.

The Mainstreaming of the Criminalization Critique: Reflections on VAWA 20 Years Later – Mimi E. Kim, Assistant Professor, School of Social Work, California State University, Long Beach, on the troubling collaboration between feminists and the criminal justice system represented by VAWA’s attachment to the Crime Bill of 1994.

A Disappearing Act: The Dwindling Analysis of the Anti-Violence Movement – Kerry Toner on the failure of VAWA to address the complex social phenomenon of domestic violence and the complete experiences of survivors.

VAWA in the Lives of Battered South Asian Women in the United States – Shamita Das Dasgupta, Ph.D., DVS, Manavi, on the experiences of battered South Asian immigrant women under VAWA.

The Gender Justice Movement: The Fullest Expression of the former Battered Women’s Movement, and the Domestic Violence Movement – Tiloma Jayasinghe, J.D., Executive Director, Sakhi for South Asian Women, on the New York City Gender Justice Taskforce and her work leading the Sakhi for South Asian Women, an anti-domestic violence agency.

VAWA and Welfare Reform: Criminalizing the Most Marginalized Women – Ann Cammett, Professor at CUNY School of Law, on how national welfare reform legislation and the rising rate of female incarceration undermined VAWA’s goals for poor women.

Improving Civil Legal Assistance for Ending Gender Violence – Elizabeth L. MacDowell, Associate Professor of Law and Director of the Family Justice Clinic at the William S. Boyd School of Law, University of Nevada Las Vegas, on necessary reforms to VAWA to expand civil remedies for domestic abuse survivors.

Gender Violence and Civil Rights – Julie Goldscheid, Professor, CUNY Law School, on the need for a renewed civil rights initiative in light of Morrison striking down VAWA’s original civil rights remedy.


VAWA @ 20: Introduction


Nishan Bhaumik

 In 1994, Congress passed the most comprehensive response to what Congress had identified as a disturbing trend of violence against women. The Violence Against Women Act (VAWA) of 1994 was a result of decades of hard-fought, strategic advocacy highlighting the legal and public neglect of violence against women, both inside and outside of the private home.

In 2014, on the 20th anniversary of VAWA, CUNY School of Law reflects upon the progress of VAWA. Our VAWA@20 Symposium first examines VAWA’s past political struggles and legal battles and then considers its future role in eliminating gender-based violence. Footnote Forum collaborated with the VAWA@20 Symposium to present a collection of cutting-edge analyses by scholars and practitioners on VAWA’s role in eliminating gender-based violence.

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VAWA @ 20: VAWA After the Party: Implementing Proposed Guidelines on Campus Sexual Assault Resolution

VAWA After the Party: Implementing Proposed Guidelines on Campus Sexual Assault Resolution

Mary P. Koss and Elise C. Lopez

University of Arizona

The 20th anniversary of the passage of the Violence Against Women Act (“VAWA”) and its reauthorization in 2013[1] merits celebration and marks a time to contemplate the future legislative and policy agenda. This commentary considers the effect of existing and proposed VAWA guidelines on the process for sexual assault adjudication at institutions of higher education. The focus is several documents including the US Department of Education Office of Civil Rights “Dear Colleague Letter”[DCL],[2] DCL clarification,[3] and the Proposed Guidelines for the Violence Against Women Act Reauthorization as disseminated for comment in the Federal Register of June 20, 2014.[4] We aim to establish that taken together, these documents: (1) blur the distinctions between campus misconduct resolution and criminal justice process;[5] (2) lack scholarly analysis of sexual assault justice on campus;[6] and (3) clash with contemporary values and practice standards of student affairs professionals.[7] This commentary identifies enhancements derived from restorative justice principles [RJ] and situates them within misconduct resolution framework while maintaining consistency with DCL and VAWA required elements. RJ offers a range of formats that are relevant to the student body at large as well as to individuals involved in sexual misconduct of varying severity and can be implemented at multiple time points in case processing. We draw upon many sources that collectively express desire for policy guidance that supports evidence-based innovations intended to increase congruence with victims’ perceptions of what constitutes justice, raise the likelihood that offenders will be held responsible by sanctions proportional to the harm done, and augment the extent to which institutional responses deter future sexual misconduct.[8]

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