Tuesday, June 28, 2016

Prof. Buckingham's New Scholarship: Trauma Informed Juvenile Justice

Professor Samantha Buckingham published "Trauma Informed Juvenile Justice" in the American Criminal Law Review.

The juvenile justice system fails to account for the astounding rates of childhood trauma exposure amongst system-involved youth. Trauma, an experience threatening to life, safety, or well-being, overwhelms an individual’s ability to cope. The experience of trauma is so pervasive amongst juvenile justice youth that a recent study found that 93% of children in an urban detention facility had experienced at least one traumatic event in the past year, and for more than half of those youth the trauma they reported was witnessing violence. When left untreated, or treated without targeted trauma-specific therapies, trauma sufferers are vulnerable to commit offenses as children and as adults. The stakes are high: untreated trauma can turn people into ticking time bombs bound to respond to triggers and misinterpret events, sometimes responding violently, even to mundane events in their daily lives. The good news is that when trauma is identified and treated with appropriate trauma-specific methods, child trauma sufferers in particular can heal, overcome their trauma, and grow in positive ways.

The juvenile justice system has yet to catch up with contemporary understanding of trauma’s impact on offending and the latest best practices for treatment of trauma. Specifically, the juvenile justice system fails to accurately identify trauma and often employs counter-productive responses to juvenile offending, such as removal from the home, programming and treatment that is general rather than trauma-specific, and the over-use of detention. Poor youth of color, the most marginalized among us, are the children who suffer the greatest from the current failure to incorporate a trauma-focused response in the juvenile justice system and are subjected to incarceration at unreasonably high rates. Incarceration itself is traumatic, it exacerbates pre-existing trauma, and it is counterproductive to long-term community safety.

This Article proposes four trauma-informed reforms: (1) create a presumption of trauma, (2) mandate trauma identification of youth in the juvenile justice system, (3) implement trauma-informed procedures, and (4) utilize trauma-informed dispositions, which will dramatically reduce our over-reliance upon incarceration in favor of safe-settings in the community. Endowed with trauma-focused reforms, the juvenile justice system is poised to identify and appropriately respond to the many traumatized children who come to its attention early enough to make a difference, capitalizing on the incredible potential for growth and resilience children possess, realizing the paramount goal of rehabilitation, promoting long-term community safety, and working to eliminate the incarceration of children.
Read or download "Trauma Informed Juvenile Justice."

Monday, June 27, 2016

Supreme Court: With McDonnell Opinion, Ex-Governor Will Get Another Day in Court

By Professor Jessica Levinson

Today the Supreme Court unanimously tossed out the conviction of former Virginia Governor McDonnell. While Gov. McDonnell's behavior was offensive, it may not be criminal. Gov. McDonnell may still see the inside of a prison cell, but a jury will have to make that determination based on the Court's interpretation of the federal bribery laws.

The court found that "our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the Government’s boundless interpretation of the federal bribery statute."

Gov. McDonnell was convicted under a statute which required that individuals make an "official act." The Court narrowed the meaning of that law, finding that merely "[s]etting up a meeting, talking to another official, or organizing an event—without more—does not fit that definition of 'official act.'" Chief Justice Roberts, writing for the Court, held that a broader interpretation of the term "official act" would create constitutional problems. It would also criminalize politics as usual.

Friday, June 24, 2016

In Memoriam: Professor William G. Coskran

Generations of future property lawyers and educators were inspired by Professor Emeritus William (Bill) G. Coskran’59. Coskran’s ties to Loyola go back to his undergraduate degree, which he earned at Loyola Marymount University. He graduated first in his Loyola Law School, Los Angeles class in 1959. After spending two years in the U.S. Air Force JAG Corps, Coskran entered private practice focusing on real property and construction law.

He quickly returned to the Law School, though, first as an adjunct professor, and then as a full-time teacher in 1968. Dean Michael Waterstone called Coskran "a treasure to our community and represented the best of who we are."

Known for being a humorous, unpretentious and friendly—and just a tad tough in the classroom— Coskran continues to influence generations of Loyola graduates. In 2014, he was named to the Loyola Law School's list of "50 Inspiration Alumni" on the occassion of the 50th anniversary of the Albany Street campus.

"As part of a faculty known for great teaching, Bill Coskran is perhaps the finest teacher of them all," Professor Victor J. Gold said of Coskran. "What makes Bill nothing less than a classroom legend is his unmatched ability to help his students understand and apply the most difficult aspects of law to a concrete set of facts. No one has ever been better at performing the magic of turning students into lawyers."

The Law School established the William G. Coskran Chair to recognize Bill for all his contributions as a loyal alumnus, an exceptional professor and an extraordinary human being.

Remembrances of Professor Coskran may be posted below and will be shared with the family:

Thursday, June 23, 2016

Loyola Immigrant Justice Clinic Reacts to DAPA Decision

The co-directors of the Loyola Immigrant Justice Clinic at Loyola Law School, Los Angeles are reacting to the Supreme Court opinion announced today that lets stand a lower court opinion blocking President Obama’s executive action, Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA.

“The divided court, by affirming the decision in U.S. v Texas, has exposed hard working and vulnerable individuals to continued vulnerability, discriminatory state and federal laws, and predatory practices. The executive action programs would have strengthened family unity, community health and safety, and strengthened our economy,” said Marissa Montes, co-director of the Loyola Immigrant Justice Clinic at Loyola Law School, Los Angeles. “As a clinic that has seen hundreds of community members eligible for these programs who have been preparing to apply, we know that their struggle will continue. As immigrants’ rights advocates, however, this gives further incentive to advocate for change and immigration reform. Our system is broken and victims of crime, asylees, parents, and friends need our attention and protection.”

The co-directors found some semblance of hope in the decision.

“Now more than ever, bold, young immigrants should enroll in Deferred Action for Childhood Arrival (DACA) and show the benefits of this program,” said Emily Robinson, co-director of the Loyola Immigrant Justice Clinic. “We have seen DACA recipients come out of hiding and make positive change on the world. By enrolling in this program, they continue to show its benefits and open the door to future executive action programs. Executive action was just a band aid on an antiquated immigration system. We need to focus on change for those who need a voice.”

Fisher v. UT: 'A significant departure from every racial affirmative action case Justice Kennedy has decided'

U.S. Supreme Court Associate Justice Anthony M. Kennedy cast the deciding vote and authored the opinion in the Fisher v. University of Texas at Austin case decided this morning.

“This is momentous. Justice Kennedy has finally found a racial affirmative action policy that he was willing to endorse,” said Professor Kimberly West-Faulcon, the James P. Bradley Chair in Constitutional Law at Loyola Law School, Los Angeles who filed an amicus brief with the Supreme Court in the Fisher v. University of Texas case (often called Fisher II because it is the second time plaintiff Abigail Fisher’s case has gone to the Supreme Court).

“This is a significant departure from every racial affirmative action case Justice Kennedy has decided to date. Kennedy has not only sided with the University of Texas, he has said ‘considerable deference’ is owed to the state university. This is a major ruling for universities because this is the first time a Kennedy opinion has used language about ‘equal treatment and dignity’ in the context of race. In the era of Black Lives Matter, Justice Kennedy is showing a willingness to protect racial rights in a manner he has previously reserved for LGBT rights.”

More: Read the amicus brief Professor West-Faulcon filed in support of the University of Texas in November 2015.

Wednesday, June 22, 2016

Race and the Courts

By Professor Eric Miller 
Access to justice through our court system is skewed on the basis of race. In the criminal justice system, the decisions of of criminal justice officials to target, arrest, charge, prosecute, convict, and punish our citizens fall more harshly on minorities, and especially African Americans and Latinos. The effect is to channel Black and Brown people into the criminal justice system in greater numbers, and for longer, than similarly situated white individuals. 

The problems of race and the courts are local and structural. These problems are magnified in a criminal justice system that also responds to local and structural factors. Prosecutors, who make the decisions about whether to charge a defendant and the severity of the charge, are overwhelmingly white. They are incredibly powerful, and often have more impact on the sentence than the courts. Courts themselves are often overworked, and spend little time questioning the evidence in low-level criminal cases. At significant stages of the process—when sassing bail, or appointing counsel—the court may make decisions that undermine the rights of poor defendants. And those defendants are now often required to pay for the privilege of having a court release and monitor them on bail, probation, or parole.

Matters are even worse on the civil side, where minority plaintiffs lack the resources to hire attorneys, and minority defendants who are unable to pay fines often find civil penalties converted into criminal charges. Without adequate representation to argue for fine reductions on the basis of indigency, these litigants cannot turn to the court system for relief, but are instead re-victimized by an overworked system that sometimes cares more about processing cases than doing justice.

Tuesday, June 21, 2016

Thoughts on Utah v. Strieff: A Blow to Democratic Accountability of Police

By Professor Eric Miller

On Monday, the Court announced its decision in Utah v. Strieff, a Fourth Amendment case in which a man was unlawfully stopped leaving a house the police suspected of being a drug den. Upon searching Strieff, the arresting officer discovered methamphetamine and drug paraphernalia. Normally, the fruits of an unlawful search would be inadmissible in evidence. But what made this stop and search permissible was the officer’s discovery, upon asking for and checking upon on Strieff’s I.D., that Srtieff had an outstanding warrant, entitling the officer to arrest Strieff. The existence of the warrant, the Court held, was an unforeseen intervening event breaking the chain of illegality and permitting the police to arrest and search the defendant in good faith, free of the sanction of exclusion.

The decision, over an impassioned dissent by Justice Sotomayor, is a real blow to the democratic accountability of the police. To see why, consider a fairly old case in which the Court discussed an encounter somewhat like this: Sibron v. New York, 392 U.S. 40, 44-45, 61-63 (1968). In that case, an officer standing outside a cafe suspected Sibron of drug dealing inside a cafe, could not confirm that suspicion from his position outside the cafe, and performed and unconstitutional stop resulting in the discovery of drugs. While the major difference is, of course, the attenuation issue, it is worth considering that Sibron had a right to walk away from the police officer—a right emphasized by Justice White and Justice Marshall’s concurring opinions in Sibron’s more famous companion case, Terry v. Ohio, and reiterated in the “free to leave” seizure context (Schneckloth v. Butamonte, INS v. Delgado, Florida v. Drayton, etc.).

Wednesday, June 15, 2016

Obama’s Fateful Warning

By Professor Eric Miller

Yesterday, President Obama gave an impassioned speech warning against singling out the American Muslim community, and indeed Muslims worldwide, as complicit in the violence that erupted so tragically in Orlando this weekend. In an angry response to Donald Trump’s insinuation that American Muslims as a group support and hide terrorists, President Obama asked “Where does this stop?”

While most news outlets focused on that soundbite, what the President said next was much more fateful. The President, a former professor of constitutional law, went on to invoke perhaps America’s most reprehensible act after slavery: the internment of Japanese Americans at the outbreak of World War II. He said, “We have gone through moments in our history before when we acted out of fear, and we came to regret it. We have seen our government mistreat our fellow citizens, and it has been a shameful part of our history.”

It was then California Attorney General Earl Warren who took the decision to intern Japanese Americans, and it was a decision he was to regret for the rest of his life. His decision, upheld in the infamous case of Korematsu v. United States, condemned tens of thousands of Americans to confinement based only on the fear that, collectively, they posed a threat to national security. Yet, like the many Muslim Americans who serve with distinction in the American Military today, many of those Japanese Americans fought gallantly on our behalf in the Second World War. Eventually American acknowledged its wrong, and in 1988, under President George W. Bush, Congress passed the Civil Liberties Act to compensate the surviving members of the Internment, apologize, and “prevent the recurrence of any similar event.”

Earl Warren’s eventual response to his worst decision was to be his best: as Chief Justice of the Supreme Court, he extended the equal protection of the law to all Americans in Brown v. Board of Education, the decision that entrenched desegregation and equal citizenship for all as cornerstones of the American way of life. Brown was an important political decision in another war: the Cold War fight for the hearts and minds of peoples around the world who found American claims to moral leadership sullied by the evils of racial discrimination. Undoing the wrongs of the Internment, and of segregation, enabled America to champion freedom, justice, and democracy around the globe. President Obama told us yesterday that America once again faces its Korematsu moment. We must not go down that path again.

Learn more about professors' expertise on election topics in Loyola's Election 2016 Commentary Guide.

Dear Brits: Don't listen to the U.S. on 'Brexit'

By Professor Justin Hughes

This op-ed originally appeared in the June 15, 2016 edition of the Los Angeles Times.

Dear British friends, I’m writing to say I’m sorry my president has been meddling so much in the debate about “Brexit,” your June 23 vote on whether to remain part of the European Union. The speeches, the BBC interview, the op-ed in the Daily Telegraph — it’s all been a bit much.

Still, good friends cannot help but offer advice. I’ve watched the polls swing back and forth — a recent Guardian/ICM poll suggested leaving is up 53% to 47%, while poll aggregators see a dead heat with about 10% of you undecided. As an American who’s worked in international affairs, lived in the EU, and loves both Burgundy wines and Devon clotted cream, let me offer you this bit of advice: In this existential decision, don’t let experts and politicians — yours or ours — scare you. Take everything with a dose of salt.

Friday, June 10, 2016

Agency Class Actions In Action

The Administrative Conference of the United States voted to approve recommendations written by Professor Adam Zimmerman for almost all federal agencies. The recommendations, co-authored by Michigan State's Michael Sant'Ambrogio, recommend that federal agencies use class actions and other complex procedures in their own hearings.

Zimmerman says:

"Because agencies hear far more cases than federal and state courts, this is a big deal--for injured veterans, coal miners, consumers and others long denied the use of these kinds of procedures to commence and resolve their cases. Our recommendations will be published in the federal register and apply to all federal agencies that adjudicate claims."

Monday, June 6, 2016

Trump is “Yugely” Wrong in His Attack on Judges

By Professor Laurie L. Levenson

Donald Trump crossed the line when he attacked Judge Gonzalo Curiel as a “Mexican” who could not be fair in his case. Put aside that Judge Curiel was born in Indiana. Put aside that Judge Curiel is a well-respected jurist who has dedicated his career to public service. Put aside that Judge Curiel has done nothing to deserve Trump’s invective. Trump crossed the line by suggesting Judge Curiel has done anything other than completely comply with the ethical standard for judges.

First, there is nothing in the Code of Conduct for U.S. Judges that disqualifies a judge because some litigant has had the audacity to make offensive public comments about the judge’s ethnicity. That rule makes sense. Otherwise, litigants could shop for judges simply by making unfounded accusations against the judge assigned to their case. To the contrary, the rules support the independence of judges by not having them recuse themselves unless they have a “personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” Canon 3(C)(1)(a). There is no indication that Judge Curiel has a personal bias requiring him to disqualify himself. Moreover, Trump has never even made a motion to recuse the judge.

Second, Judge Curiel has always acted appropriately in Trump’s case. Nothing shows that his “honesty, integrity, impartiality, temperament or fitness to serve as a judge [has been] impaired.” Canon 2(A). In fact, the judge went out of his way to allow Trump to focus on his campaign rather than defend his case before the election.

Finally, Trump is picking on a target who cannot readily defend himself. Under Canon 3(A)(6), Judge Curiel cannot make comments about a pending case. Trump took a sucker punch at a person he knows is ethically barred from responding to his outrageous claims.

Overall, Judge Curiel should be praised for the ethical and responsible manner in which he has handled this recent controversy. Trump, on the other hand, should read the Code of Ethics.