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Proposition 47’s Successful Implementation Depends on New Alliances, Say Prison Reformers

“Now the real work begins,” said Michael Romano, director of Stanford’s Three Strikes Project at a forum on California’s recent prison reform initiatives held Tuesday at Stanford Law School. Others on the panel were George Gascon, district attorney for San Francisco and Robert Rooks, organizing director of Proposition 47 and Californians for Safety and Justice.

From left, panelists George Gascon, district attorney for San Francisco; Michael Romano, director of Stanford’s Three Strikes Project; and Robert Rooks, organizing director of Proposition 47 and Californians for Safety and Justice at a forum held at Stanford Law School.

From left, panelists George Gascon, district attorney for San Francisco; Michael Romano, director of Stanford’s Three Strikes Project; and Robert Rooks, organizing director of Proposition 47 and Californians for Safety and Justice at a forum held at Stanford Law School.

Romano was referring to the recent passage of Proposition 47, which reduces penalties for many nonviolent offenses in California, such as drug possession and petty theft crimes, from felonies to misdemeanors. In order to be successful, Romano argued, the new law is going to require progressive organizations that favor the law to work together with law enforcement leaders who, for the most part, fought Proposition 47. The end result could be a reduction not only in incarceration but also in recidivism and, therefore, in crime, as more former inmates turn their lives around with help from churches, job training, drug rehabilitation programs and community organizations.

“Lawyers who think their only goal is to get clients out of jail are going to have to think more as problem solvers,” said Gascon. He was one of only a few law enforcement leaders who worked for the passage of both propositions. He noted that the ballot victories show the public supports measures that create “more sustainable safety models.”

Like Proposition 36, an initiative that California voters approved in 2000 that modified the state’s “Three Strikes” law, Proposition 47 won traction from voters who believe in giving people second chances, he explained.

“Law enforcement leaders and elected officials are way behind the voters on these issues,” Romano said.

Rooks credited an unusual alliance of labor leaders, Catholic church bishops and “door knockers” who cared about progressive legal issues for the successful passage of Proposition 47. “We were able to bring networks of people together who had never worked together before,” he explained.

The ramifications of Proposition 47 are enormous. Rooks notes that San Diego County alone identified 200,000 people who might be able to change their record from a felony to a misdemeanor, based on the new law. He said his organization, Californians for Safety and Justice, will be working with legal clinics and community groups across the state to help deal with the anticipated flood of requests.

Gascon’s Public Defender’s Office in San Francisco has already set up an information line to assist former clients and others seeking relief under the new law at (415) 553-9344.

Proposition 47 calls for the money saved from incarcerating fewer people to be used for a “Safe Neighborhoods and Schools Fund,” for truancy and drop-out prevention programs in schools, victims’ services, and mental health and drug treatment programs designed to keep individuals out of the criminal justice system. Rooks said that funding – an estimated $200 million to $250 million per year –

will become available in early 2016, as the measure calls for a full year of baseline data to be collected first.

While there has been much talk about savings at the state level, Gascon pointed out that cities and counties also will benefit from reduced costs in prosecution and police services. “The question is, are local governments going to shift the money and do the right things?” he said.

The three panelists agreed that prison reformers in other parts of the U.S. are following California’s efforts with interest. They are learning, Romano, said, that “the people really want this.”

 

Stanford Law’s Michele Landis Dauber Receives Five Awards for First Book

The American Society for Legal History announced today that it has awarded its 2014 John Philip Reid Award to Michele Landis Dauber, Stanford Law School professor of law and Bernard D. Bergreen Faculty Scholar, for her first book, The Sympathetic State: Disaster Relief and the Origins of the American Welfare State.

Michele Landis Dauber

Michele Landis Dauber

In an email announcing the award, Sophia Z. Lee, chair of the awards committee and a professor of law and history at the University of Pennsylvania Law School, hailed the book as “magnificent.” Lee wrote to Dauber that the award committee members were “incredibly impressed not only by your multiple important historiographical interventions, but also your creative use of sources.”

The book was also honored this year with the American Historical Association’s 2014 Littleton-Griswold Prize, the American Sociological Association’s 2014 Sociology of Law Section Distinguished Book Award and the American Political Science Association’s 2014 J. David Greenstone Book Award for the best book in politics and history. In 2013 the Law and Society Association gave the book an honorable mention in its James Willard Hurst Prize in American Legal History competition.

“I am surprised and very pleased the book received so much recognition,” said Dauber. “To be honest, I get excited when anybody reads anything I write and finds it useful or informative.”

In The Sympathetic State, Dauber argues that the United States’ long tradition of providing federal disaster relief set the stage for the American social welfare state. “It’s really an important story in our country’s history about how the government has cared for people when they were in need through no fault of their own,” Dauber explained.

“The book has relevance not only regarding the current debates about the Affordable Care Act and Medicaid but also with respect to the debate about emergency response,” she said. “As climate change makes weather events more severe and frequent, the federal government’s policy about how we take care of people will become more important. For example, if people live in an area that often gets flooded, will we always compensate them? What happens when people have to move?”

The book was published in 2013 by the University of Chicago Press.

 

Stanford Scholars Document Declining Medical Liability Claims and Forecast Future Trends

Doctor with clipboardSTANFORD, Calif., October 30, 2014 – A new study co-authored by two professors from Stanford and one from Harvard documents a sharp reduction in the rate of paid medical liability claims and identifies six developments that are likely to shape medical liability policy during the next decade.

The study, published today in the Journal of the American Medical Association (JAMA), is the work of Stanford Professors Michelle M. Mello and David M. Studdert, who share joint appointments with Stanford Law School and the Stanford University School of Medicine, and Allen Kachalia, an associate professor with Harvard Medical School.

The JAMA article says the researchers found that rates of paid claims against physicians decreased from 18.6 to 9.9 paid claims per 1,000 physicians between 2002 and 2013, with an estimated annual average decrease of 6.3 percent for medical doctors and a 5.3 percent decrease for doctors of osteopathy. It is based on data from the National Practitioner Data Bank and the American Medical Association’s Physician Masterfile.

Among claims that resulted in some payment, the authors found that the median amount paid increased from $133,799 in 1994 to $218,400 in 2007, an average annual increase of 5 percent per year. Since 2007 the median payment has declined slightly, reaching $195,000 in 2013, an average annual decrease of 1.1 percent. These data came from the Medical Liability Monitor’s Annual Rate Survey.

Good time to consider improvements

The study notes that the current stability in claims makes this the ideal time to be thinking about reforms in the medical liability system. “After years of turbulence, the medical liability environment has calmed,” said Mello. “Although many aspects of the malpractice system are dysfunctional, causing angst for physicians, the cost of malpractice claims and insurance have been stable for the last few years and the number of claims has been declining.”

She added, “Usually, attention is only focused on reform during ‘malpractice crises,’ but highly charged political environments are not conducive to cool-headed policy decisions. This current period of calm is a good time to be thinking about reforms that could improve our medical liability system.”

The authors report that traditional liability reforms fail to address problems with the malpractice system’s two core functions: compensating negligently insured patients and deterring substandard care. For example, they note that studies of tort reforms—law changes such as caps on noneconomic damages that are designed to reduce the volume and cost of malpractice litigation—suggest that they are only modestly effective in controlling costs.

“These traditional reforms have been disappointing, especially in light of the political battles that have to be fought to pass them,” said Mello. “Increasingly, policy makers are interested in finding better approaches.”

The authors describe seven nontraditional approaches to medical liability reform, noting they are “more politically and ethically appealing because they stand to benefit not just physicians and insurers but also patients.”

Among the most promising innovations, they say, are communication-and-resolution programs in which health care practitioners and institutions openly discuss adverse outcomes with patients and proactively seek resolution, which may include offering compensation before the patient files a claim. Early programs pioneered by the Lexington (Ky.) Veterans Affairs hospital and the University of Michigan Health System have reported substantially lower malpractice claims and costs. Stanford University reported a 36 percent decrease in claim frequency and a 32 percent average annual reduction in insurance premiums in the first three-and-a-half years of its program.

Future trends over next 10 years

The authors predict six forces will reshape medical liability policy during the next decade:

  • Continued debates and disagreement about traditional tort reforms, especially damages caps, in courts, in legislatures and on ballot initiatives, which “sap political energy and divert attention from alternatives that may achieve what caps will never deliver: a more just, reliable and accessible liability system that promotes patient safety”
  • Expansion of communication-and-resolution programs. For starters, the Agency for Healthcare Research and Quality is planning to support a nationwide scale-up of this approach.
  • Greater emphasis on laws that facilitate rapid private resolutions of medical injury disputes
  • More consideration of “safe harbor” laws that give health care practitioners and institutions a defense to a malpractice claim if they can show they followed an applicable clinical practice guideline in caring for a patient
  • Growing interest in leveraging the national movement toward consolidation in health care to improve resolution of medical injuries. As more physicians are employed by hospitals and health systems, those organizations can play a more prominent role in the liability system.
  • The next malpractice insurance crisis. Liability insurance crises have recurred in regular cycles since the expansion of malpractice litigation in the 1960s and, the authors say, “another may well be in the near future.”

The report concludes, “Action now to reduce the amplitude of the next medical liability cycle is both prudent and feasible. Further testing of nontraditional reforms, followed by wider implementation of those that work, holds the most promise. Prospects for permanent improvement in the medical liability climate depend on it.”

About Stanford Law School

Stanford Law School is one of the nation’s leading institutions for legal scholarship and education. Its alumni are among the most influential decision makers in law, politics, business and high technology. Faculty members argue before the Supreme Court, testify before Congress, produce outstanding legal scholarship and empirical analysis, and contribute regularly to the nation’s press as legal and policy experts. Stanford Law School has established a new model for legal education that provides rigorous interdisciplinary training, hands-on experience, global perspective and focus on public service, spearheading a movement for change.

 

Stanford Law School’s Allen Weiner Reports to United Nations on Ongoing Human Rights Violations by Vietnamese Government

Vietnamese activists

The original petitioners: Vietnamese activists who have been detained

STANFORD, Calif., October 21, 2014—Allen Weiner, director of the Stanford Program in International and Comparative Law at Stanford Law School, today filed an update concerning the petition initially submitted to the United Nations Working Group on Arbitrary Detention (UNWGAD) in Geneva in July 2012 contesting the illegal arrest and ongoing detention of 16 Vietnamese social and political activists.

The update reports on the continuing failure of the Socialist Republic of Vietnam to comply with the opinion rendered by the UNWGAD in August 2013, which found that the deprivation of liberty of these activists contravened Vietnam’s international legal obligations under the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights. The Working Group called upon the Vietnam government to immediately release the detainees and provide them with adequate reparation.

The update notes that despite the unambiguous nature of the UNWGAD’s August 2013 opinion, the Vietnamese government is still violating its clear legal obligations under international law. Eleven of the activists continue to be arbitrarily detained by the Vietnamese government in violation of its international human rights obligations.

In addition, although five of the activists have completed their prison sentences, they still face ongoing unlawful restrictions on their liberty through the exercise by the Vietnamese government of “administrative detention,” a form of restriction on their freedom of movement which is severely curtailing their livelihood and which is also in violation of Vietnam’s international obligations.

In addition, the update reports on the Vietnamese government’s malicious mistreatment of persons covered by the UNGWAD’s decision. The update notes with particular concern the cruel and degrading treatment of Francis Dang Xuan Dieu, a blogger and member of the nonviolent pro-democracy party Viet Tan.

 Human rights violations

According to a former prison inmate, Dieu has been held in solitary confinement and faced physical assault for maintaining his innocence and refusing to wear a prisoner uniform. Prison authorities have reportedly withheld food and clean water and forced Dieu to remain in a tiny cell without ventilation or even basic sanitation.

The mistreatment of Dieu is a clear violation of Article 19(1) of the International Covenant on Civil and Political Rights, which provides: “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” It is also inconsistent withArticle 5 of the Universal Declaration of Human Rights, which states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

This conduct is also flatly inconsistent with the representations made by the Vietnamese government upon its signing on November 7, 2013, of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Vietnamese ambassador to the United Nations at that time asserted that, by signing the convention, Vietnam was “reaffirm[ing] its unwavering commitment to prevent all acts of torture and cruel, inhuman or degrading treatment of persons and to better protect and promote fundamental human rights.”

Given the continuing mistreatment of those engaged in nonviolent forms of political and social activism in Vietnam and the Vietnamese government’s ongoing unlawful detention of such activists, the update urges the UNWGAD to take urgent action on behalf of Francis Dang Xuan Dieu and the other petitioners, such as requesting a country visit to Vietnam, including a prison visit with Dieu; submitting an inquiry to the Vietnamese government regarding the current treatment and condition of Dieu; and reiterating its previous opinion and renewing its request for the unconditional release of all 16 social and political activists covered by the Working Group’s August 2013 opinion.

Violation of international law

“In view of the U.N. Working Group’s opinion in this case, there can be no reasonable question about whether Vietnam’s detention of these social and political activists is permissible under international law. It is not, but is simply governmental repression against those seeking to exercise civil and political rights that are protected under international law,” said Allen Weiner, senior lecturer at Stanford Law School and counsel for the petitioners.

“The refusal of the Vietnamese government to release these petitioners, notwithstanding the clear decision of the U.N. Working Group, reflects a deep disregard for international law and raises profound questions about the role Vietnam wishes to play in the international community,” he noted. “Above all, it is a deep injustice to these activists, who seek only to engage in the kind of speech and political and social advocacy that we take for granted in a free society.”

In its opinion issued in August 2013, the UNGWAD, which is responsible for examining cases of arbitrary detention, stated expressly that that the holding and expressing of opinions, including those which are not in line with official government policy, are protected under Article 19 of the International Covenant on Civil and Political Rights. The Working Group noted that the provisions of Vietnamese law on the basis of which the petitions were convicted are “vague and overly broad.” It found that the deprivation of liberty of the petitioners, as well as the procedural deficiencies in their trials, contravened numerous provisions of the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights.

The petitioners are Dang Xuan Dieu, Ho Duc Hoa, Nguyen Van Oai, Chu Manh Son, Dau Van Duong, Tran Huu Duc, Le Van Son, Nong Hung Anh, Nguyen Van Duyet, Nguyen Xuan Anh, Ho Van Oanh, Thai Van Dung, Tran Minh Nhat, Ta Phong Tan, Tran Vu Anh Binh, and Nguyen Dinh Cuong.

Read about the U.N. Working Group’s favorable ruling on the original petition.

About Allen S. Weiner

Allen S. Weiner is senior lecturer in law, director of the Stanford Program in International and Comparative Law, and co-director of the Stanford Center on International Conflict and Negotiation at Stanford University. He is an international legal scholar with expertise in such wide-ranging fields as international and national security law, the law of war, international conflict resolution, and international criminal law (including transitional justice). His scholarship focuses on international law and the response to the contemporary security threats of international terrorism, the proliferation of weapons of mass destruction, and situations of widespread humanitarian atrocities. He also explores the relationship between international and domestic law in the context of asymmetric armed conflicts between the United States and nonstate groups and the response to terrorism.

 

Supreme Court urges states to take lead in same sex marriage, say Stanford Law professor and others at Stanford

This story was written by Clifton B. Parker of Stanford News Service.

Same sex marriage took another step this week toward becoming the law of the land – at least how it’s defined individually in all 50 states – according to Stanford scholars.

Earlier this week, and in a bit of a surprise, the U.S. Supreme Court announced that it will not hear any of the seven same sex marriage cases pending before the court. Jane Schacter, a Stanford Law School professor and leading expert on sexual orientation law, said the immediate effect is that the high court will allow marriage to go forward in the states involved in the litigation and eventually in every state in these circuits.

People wait in front of Supreme Court


People wait to enter the Supreme Court on Oct. 6, 2014, as it begins its new term. Photo by Scott Applewhite, AP

“If the Supreme Court declines review from a circuit court ruling, that ruling binds every state in that circuit,” noted Schacter, the William Nelson Cromwell Professor of Law.

Schacter said she believes the likely meaning of the Supreme Court’s action denying review is that the court won’t take up a same sex marriage case until a federal appeals court upholds a state ban on same sex marriage: “That would create a split among the federal appeals courts that the court might feel obliged to resolve.”

As she pointed out, in 2013 the court struck down the federal Defense of Marriage Act, and every federal appellate court to hear a case since that decision has ruled in favor of marriage equality.

“We of course don’t know what the court would rule if it did take a case,” said Schacter, who said there may well be a narrow majority on the court in favor of marriage equality.

As for those who oppose same sex marriage, she said they will likely continue to argue that each state ought to set its own marriage policy and that nothing in the Constitution grants same sex couples a right to marry.

“They will correctly point out that the court’s decision not to grant review earlier this week is not the same thing as a decision affirming that laws banning same sex marriage are unconstitutional,” said Schacter.

Litigation is underway in several federal circuits that have not yet ruled on marriage equality, she added. If there was a “circuit split,” Schacter said, the “Supreme Court might well decide to grant review and give us a conclusive national answer.”

‘Sense of justice,’ economic inequality

Estelle Freedman, a Stanford history professor specializing in women’s history and the history of sexuality, offered an explanation for the shift in public opinion toward favoring same sex marriage in recent years.

“For one, it appeals to people’s sense of justice,” said Freedman, the Edgar E. Robinson Professor in U.S. History. Before last year, federal law barred same sex couples from availing themselves of many tax benefits that flow freely to heterosexual married couples. Social Security survivor benefits are another issue.

“The concept of marriage as a long-term commitment is important to many people, so it’s acceptable to extend it to lesbians and gay men,” said Freedman. The legal arguments against same sex marriage were focused on how it might corrupt children or destroy the institution of marriage. Multiple courts have already found such argumentation to be unfounded, she added.

“In short, this court is not going to make it a federal case, ruling for the nation,” she said.

Within the LGBTQ community, Freedman said, there is debate about the broader effects of the same sex marriage movement. Some critics point out that concentrating on marriage rights is a conformist strategy that may privilege those with the most resources and overlook problems of economic inequality.

Even with the support for same sex marriage, society still has a problem with homophobia and bullying toward queer people, especially the young and underprivileged, she said.

“Homophobic violence is often experienced by those who are economically vulnerable, including gay youth, people of color and trans people,” said Freedman.

She said that while she hoped the recent favorable court rulings would help undermine these hostile attitudes, much work remains to be done beyond the courthouses of America.

To give just one example, revised educational curricula for K-12 students that include LGBT history and issues could be helpful in encouraging respect for diversity, Freedman said.

Changing families, research findings

Michael Rosenfeld, an associate professor of sociology at Stanford who studies race, ethnicity and families, said the percentage of Americans supporting same sex marriage has risen by about 1.5 percent per year in recent years.

As a result, he said, public support for same sex marriage has in many states gone from just less than 50 percent to just more than 50 percent, which allowed same sex marriage to win at the ballot box in several states in 2012.

“Most of that change is due not to individuals changing their minds, though some individuals have certainly changed their minds, but rather to the arrival into adulthood of people from more recent birth cohorts, who have grown up in environments in which gay rights are not controversial,” he said.

Rosenfeld described the generational gap in attitudes toward gay rights as “enormous.”

“Societal change due to more recent birth cohorts replacing older birth cohorts is called ‘demographic metabolism,’” said Rosenfeld.

“Once people perceive that support for same sex marriage is a majority position, as it is now in many states, same sex marriage starts to be perceived as inevitable,” he said.

Moreover, social science research shows that the public increasingly perceives same sex couples – especially same sex couples raising children – as families, according to Rosenfeld.

As scholars published more research in the past 10 years on children raised by same sex couples, the findings revealed that those children have “good outcomes,” he noted.

“The social science consensus that children raised by same sex couples are at no disadvantage has been acknowledged by the various scholarly professional organizations and by the courts,” Rosenfeld said.