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Stanford Criminal Justice Center Report Finds California Prosecutors Do Not Reflect the State’s Diversity

Prosecutors and Star Wars

Graphic by Margaret Hagan, Stanford University

While detailed information about the race and gender of law enforcement officers in the United States has been available for decades and has prompted many police departments to diversify their workforces, there has been virtually no publicly available information to answer the question of how representative prosecutors are of the communities they serve. Until now.

Stanford Law School students worked with the Stanford Criminal Justice Center to make the demographics of California prosecutors available for the first time. Data that the team gathered from prosecutors’ offices in 52 of California’s 58 counties, representing nearly 98 percent of the state’s population, found that whites, who comprise slightly more than 38 percent of the state’s population, hold nearly 70 percent of prosecutors’ jobs.

The last time 70 percent of Californians were white was four decades ago. California prosecutors, the report concludes, are “Stuck in the ‘70s.”

The team found that Latinos are the most poorly represented among prosecutors. Latinos represent almost 39 percent of the population in California but make up only 9 percent of California prosecutors.

In addition, the data collected showed that women are underrepresented in the supervisory ranks of prosecutors in California. Forty-eight percent of California prosecutors are female, but 41 percent of prosecutors with supervisory titles are women.

Importance of diversity

Those numbers are significant, the report says, because research has shown that criminal justice agencies are fairer, inspire more public confidence and are more likely to be seen as legitimate when they reflect the diversity of the communities they serve. In addition, the report notes that “the presence of minority attorneys in a prosecutor’s office may also make the office more likely to adopt policies and champion initiatives that are responsive to the concerns of minority residents.”

The students working on the study were enrolled in a practicum offered by the school’s Law and Policy Lab, where small teams work under close faculty supervision to help solve complex policy problems on a wide range of issues. The practicum was led by Debbie Mukamal, executive director of the Stanford Criminal Justice Center (SCJC) and Professor and SCJC Faculty Co-Director David Alan Sklansky.

Latinos among California prosecutors

In California, Latinos comprise 39 percent of the population and 9 percent of the prosecutors. Graphic by Margaret Hagan, Stanford University

“The most surprising thing was that Latinos are extremely underrepresented among prosecutors. I expected them to be underrepresented, but not by such a large percentage,” said one of the students, Isaiah Deporto, JD ’17.

Another student, Katherine Bies, JD ’17, described the difficulty in getting the data. “We tried collecting the data in bulk by sending out Freedom of Information Act requests to the federal Department of Justice and California DOJ and local Equal Employment Opportunity Commission offices, but not one of these organizations had records of the data. Instead, we had to call each office individually and, even then, there was no routine manner of collecting the data,” she noted.

The other students in the practicum were Darryl Long and Megan McKoy, both JD ’17.

Insufficient ‘pipeline’

In addition to highlighting disparities between the demographic breakdown of prosecutors in California and the residents they serve, the study notes a problem in the pool from which prosecutors are hired: lawyers. In California 79 percent of lawyers are white, whereas 6 percent are Latino. It cites the “pipeline” for lawyers – law schools – as another concern. That problem is not confined to California. While blacks, Latinos, Asian Americans and Native Americans comprise a third of the national population, they comprise only a fifth of law school graduates across the country and just over a tenth of attorneys practicing law.

The report suggests that future studies might address the effects and causation of the underrepresentation of Latinos among California prosecutors, as well as the underrepresentation of women in supervisory roles. They might also explore issues raised by prosecutor demographics on a national basis. “We need to better understand why the legal profession as a whole and, in particular, prosecutors’ offices, struggle to hire and retain minority and female lawyers,” said Bies.

Some of that work will begin soon at Stanford Law School. Mukamal and Sklansky are currently recruiting students for a follow-up policy practicum to be offered this fall.

Read an op-ed about the new study by Debbie Mukamal and David Sklansky in the Los Angeles Times.

Related story: SLS Professor Deborah Rhode comments on the problem of law school diversity in The Washington Post.

SLS Professors Say California’s New Vaccination Law Serves as National Model

This article was written by Clifton Parker of Stanford News Service

Doctor filling needle

Two SLS professors conclude that California’s new vaccination law could serve as a model for other states wanting to improve public health protections. (Niyazz/Shutterstock)

California’s tough new vaccination law is legally sound and will serve as a model for how to keep children healthy, Stanford professors say.

On June 25, California Gov. Jerry Brown approved a new state law (SB277) that substantially narrows exceptions to school-entry vaccination mandates. In doing so, California becomes the third state (Mississippi and West Virginia are the others) to disallow exemptions based on both religious and philosophical beliefs. Only medical exemptions remain.

“The move represents a stunning victory for public health that affects not only California schoolchildren, but the prospects for strengthening vaccination requirements nationwide,” wrote Michelle Mello and David Studdert, professors in both Stanford’s law and medical schools, in a July 22 New England Journal of Medicine article. Their co-author was Wendy Parmet, a Northeastern University law school professor.

Starting July 1, 2016, all children enrolled in public or private schools or in day care facilities must be vaccinated against whooping cough, measles and other diseases.

“There is persuasive evidence that stringent vaccination mandates reduce the risk of vaccine-preventable illness,” they wrote. “Less clear is the effect California’s move will have on the politics of vaccination.”

California’s new policy may embolden other states to eliminate philosophical and religious exemptions or increase the barriers to obtaining those exemptions, Mello, Studdert and Parmet wrote.

Eighteen states allow both types of exemptions, they said, and legislation has been introduced in many to toughen the requirements.

“Although California politics may be distinctive, its experience with SB277 teaches us that even strong opposition can be overcome with the right combination of astute public education, political strategy and legislative fortitude,” they wrote. “Fewer vaccination exemptions and vaccine-preventable illnesses would be accomplishments that other states would find difficult to ignore.”

Vaccination politics

Though California’s new law faced vocal opposition, the researchers noted that four factors worked in favor of its approval:

• Supporters in the California Legislature did not bow to considerable pressure to abandon the measure.

• The state health department publicized data showing that rates of personal-belief exemptions in California have doubled since 2007, and analysts noted that vaccination coverage is low enough to jeopardize “herd immunity” in about 25 percent of California’s schools. Such immunity occurs when enough people have been vaccinated that their collective immunity provides a measure of protection for those who are not immune.

• Research showed that a lack of vaccination compliance was most likely to blame for the 2015 measles outbreak in Disneyland. That incident created a political opportunity to advance the vaccination cause, the professors wrote.

• Finally, the bill’s proponents “focused on the specific threat to schoolchildren who are too medically fragile to receive vaccinations, effectively framing vaccine refusal as a decision that endangers others rather than a purely personal one.”

Solid legal ground

Still, the controversy continues; efforts are already under way to collect signatures for a referendum to repeal the new law, they noted.

Constitutional challenges have also been threatened – but are unlikely to succeed,” wrote Mello, Studdert and Parmet.

They expect that opponents may argue that the lack of a religious exemption violates their First Amendment right to free exercise of religion.

But the U.S. Supreme Court wrote back in 1944, in the context of other parental-rights claims, that religious freedom “does not include liberty to expose the community or the child to communicable disease.” Plus, more recently, two appellate courts concluded that the First Amendment does not require religious exemptions from vaccination mandates.

“Analogizing from decisions that have allowed parents to refuse treatment for their children on the basis of religious objections is problematic; these cases do not consider the kinds of risks to the wider community that vaccination exemptions do,” they wrote.

Challengers to the law may also argue that the vaccination law violates a child’s right to education – under the new law, children who do not receive the vaccinations are not allowed to attend school.

While the U.S. Supreme Court has never recognized a federal constitutional right to education, 16 state constitutions (including California’s) elevate education to the status of a fundamental right, they said. However, most legal rulings on this front have dealt with what the state must provide in terms of resources for public schools, not what it may require of parents.

The most relevant case involved vaccination requirements in New York, where that state’s high court held that the right to attend public schools may be subordinated to “restrictions and limitations in the interest of the public health,” they wrote.

Enforcement issues

The lack of enforcement may emerge as the greater risk to the vaccination law, Mello, Studdert and Parmet wrote. Schools and day care centers are responsible for verifying vaccinations, and some may let children begin school without being in compliance. They face no penalties to ensure that vaccinations are actually obtained – and many commitments are not kept, they added.

Instead, enforcement powers should be given to health departments. “Schools and day care centers would notify the health department of any students permitted to commence with incomplete vaccinations, and the health department would conduct the necessary follow-up,” they wrote.

Another obstacle may be so-called “willing providers” who assist the anti-vaccination community by giving them medical exemptions, they wrote. Finally, how many parents will opt for home-schooling or private nannies over day care, or move out of state altogether to avoid the immunizations?

A home-schooling trend, according to Mello, Studdert and Parmet, would not thwart one goal of the law – it would still result in keeping schools and day care centers safe for children too young or medically fragile to be fully vaccinated.

“Such choices might, however, undercut the broader goal of safeguarding herd immunity in the general population,” they wrote.

Research by Stanford law students offers roadmap for California on legalizing marijuana

This article was written by Clifton Parker of Stanford News Service.

SLS students meet at RAND

Stanford Law School students prepare for a presentation on California marijuana policy options at the RAND Corp. office in Santa Monica, Calif., in May. Photo by Stanford Law School

If California voters legalize marijuana for recreational use, the state would be wise to fully consider its options on how best to implement such a law, according to new research by Stanford law students.

One or more marijuana legalization initiatives will probably qualify for the 2016 California ballot. Over the past few years, Colorado, Washington, Alaska, Oregon and Washington, D.C., have all legalized recreational marijuana – and a fuller picture is beginning to emerge.

Analyzing those lessons learned, nine Stanford law students in a practicum held this spring by Stanford law Professor Robert MacCoun offer some suggestions to better inform the public debate surrounding marijuana legalization. Their 109-page report is titled “Legalizing Marijuana in California: A Review of Policy Considerations.”

The students came up with big-picture questions about how California might approach marijuana legalization:

  • What agency (or agencies) would be best equipped to regulate such an industry?
  • What are the implications of different ways of taxing marijuana, and how could they be adjusted over time?
  • What kinds of labor regulation issues would be raised in an industry that involves everything from agricultural work to retail service?

“If recreational marijuana becomes legal, state policymakers should follow the adage of ‘measure twice, cut once’ and ensure that the regulatory system reflects the values and objectives of Californians,” the students wrote.

In the 2015 spring quarter, the students enrolled in MacCoun’s practicum on marijuana regulation, which was offered through the Stanford Law and Policy Lab. In this type of program, students work with clients under the guidance of faculty experts to develop policy solutions to pressing social and legal issues – such as marijuana legalization in California.

Informing California’s discussion

“Our hope with this policy brief is to stoke the discussion of how marijuana should be legalized in California,” the students stated in the report. They analyzed legal statutes and empirical data in California and beyond.

The timing is ripe for a statewide dialogue on the issue, they said. Competing ballot initiatives are now being developed and a California blue ribbon commission on marijuana legalization spearheaded by Lt. Gov. Gavin Newsom is expected to issue its own report soon.

MacCoun briefed the commission about a month ago, and Keith Humphreys, a Stanford professor of psychiatry and behavioral sciences, co-chairs that commission. The students also visited the RAND Corp. in June to inform Beau Kilmer, a researcher on drug policy, and other staff members about their findings.

One of the students, Jason Despain, said in an interview that society needed to make changes in the way it addresses marijuana. While he does not personally support legalization, he believes that if California decides to approve recreational marijuana, then it should do so in an efficient, safe manner.

“I certainly hope that our report helps policymakers do so responsibly and in a way that best limits the pernicious impact of an intoxicant, especially among young and vulnerable populations,” Despain said.

Federal vs. state legal issues

The Stanford report said the single most pressing issue is the tension between the federal prohibition and state legalization, as constitutional principles, interstate commerce, federal authority and the rights of U.S. attorneys are at play.

MacCoun’s students note the importance of deciding which state agency is chosen for marijuana regulation. Possible options include a single, integrated agency – an existing state organization or a newly formed independent commission – or drawing on the relative strengths of multiple agencies.

The tax system for legalized marijuana is likewise critical, the students point out. While taxes will certainly yield revenue to the state, they would also play a highly influential role in regulating business and consumer behavior. For example, the state could tax potent marijuana more heavily.

Overall, the report suggested, it may be preferable to have a tax system that is flexible and adaptable as more is understood about marijuana legalization. The report explores different types of taxes – retail, state sales, excise, local sales, for example – that California could employ as well as the pros and cons of high or low taxes.

Despain, the student, said, “I had assumed that the paper would be a case study of Colorado and Washington, and while we do learn a lot from the experience of those states, I was surprised by how much we could glean from California’s approach to tobacco, alcohol, gasoline and other issues.”

Labor implications

MacCoun’s students wrote that labor is likely to be another aspect worthy of serious attention. The National Labor Relations Board has indicated that marijuana workers – even the agricultural ones – will likely be afforded federal protections under the National Labor Relations Act.

Still, though marijuana workers would likely be able to unionize and collectively bargain, the question of labor standards and employment law is critical, according to the report.

“California may resolve this issue by implementing a licensing program to ensure that the workforce is professionalized and complies with minimum standards,” the students wrote.

The current regulatory framework that governs workers’ rights in California is somewhat “fragmented and fragile,” as the students described it. “Recreational marijuana may upset the delicate balance that has been struck between state and federal legislation.”

Efficiency, health, costs

One concern is the black market, or how legalization could limit the size of the marijuana black market and discourage consumers from continuing to buy marijuana from drug dealers.

The practicum, Analyzing Alternative Laws and Policies for Psychoactive Drugs Seminar, included Despain and other law students: Andrew Baker, Elissa Baur, Cari Jeffries, Hugh Kirkpatrick, Ann Linder, Michael Morillo, Paulina Slagter and Mackenzie Tudor.

“I had high expectations and they far exceeded them,” MacCoun said. “I for one learned a great deal from their research and analysis.”

One goal was to be evidence-driven and objective. MacCoun noted, “We agreed from the start that the analysis would not address whether California should legalize, but rather how it should legalize if citizens vote to do so.”

He added, “The students do not make any recommendations in the report. They examine a whole range of choices. This is not Stanford Law School taking a position.”

MacCoun, a social psychologist and public policy analyst, said California’s decision to legalize or not will have a broad impact. As the most populous state, it regularly serves as an example for the entire country.

At least four advocacy groups are drafting ballot measures for the November 2016 California ballot.

MacCoun is worried that they may not take into consideration some important issues in shaping those ballot measures.

“It is in their political best interest to think about these things now, since there are still 46 states that haven’t legalized, and the federal government under a new president might be much less tolerant of state experiments in this area,” he said.

The report, “Legalizing Marijuana in California: A Review of Policy Considerations,” is available here. MacCoun was a co-author on another recent journal article on the perils of marijuana edible regulations in Colorado. He is interviewed in this video by Stanford Law School about the challenges of marijuana legalization.

Federal program for vaccine-injured children is failing, says Stanford Law School professor

Child being vaccinated

Stanford Law School Professor Nora Freeman Engstrom says a no-fault alternative dispute resolution system for resolving vaccine injury claims is not working as intended. (Photo: Image Point Fr/Shutterstock)

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

The safety net that Congress created to protect children who suffer from vaccine injury is not working as intended, a Stanford law professor has found.

“The bottom line is that the Vaccine Injury Compensation Program was supposed to offer ‘simple justice’ to vaccine-injured children. But it has largely failed to do so,” wrote Stanford law Professor Nora Freeman Engstrom in a new research article.

Outside the court system

Created by Congress in 1986 as the problem of vaccine injury hit crisis proportions, the Vaccine Injury Compensation Program, or VICP, is a no-fault compensation system housed within the U.S. Court of Claims and funded by a 75-cent tax on each vaccine dose administered across the country.

Vaccines are given to reduce the threat of common diseases, such as measles, chicken pox, smallpox and polio, and they save the lives of tens of thousands of Americans each year. However, vaccines also cause a very small proportion of those inoculated to sustain serious and sometimes fatal injuries, according to Engstrom.

She said the VCIP uses a no-fault alternative dispute resolution system for resolving vaccine injury claims. Known as an “alternative compensation mechanism,” it is similar to workers’ compensation funds or the September 11th Victim Compensation Fund in providing payment to injured individuals outside the traditional court system.

Engstrom, who also recently wrote an opinion piece on this issue, noted the vaccine fund has adjudicated more than 14,000 petitions for vaccine injury since its beginning in 1986. In her research, she analyzed nearly three decades’ worth of data concerning the program’s operation.

“The results are discouraging,” she said. “Despite initial optimism in Congress and beyond that such a fund could resolve claims efficiently and amicably, in operation the program has been astonishingly slow and surprisingly combative.”

For example, Congress originally established a 240-day deadline for all adjudication decisions. But Engstrom reported that, in reality, the average adjudication takes over five years. “This is years longer than similar claims resolved by court judgment or trial verdict within the traditional tort system,” she said.

The tone and nature of the experience is also disillusioning, she noted. Though claims within the system are supposed to be amicably resolved, in reality “the resolution of petitions is frequently antagonistic,” she said.

Engstrom found that even when children are found to be entitled to compensation, governmental lawyers have sometimes hassled petitioners over relatively piddling amounts. For example, in one case, a dispute arose whether a 14-year-old girl with profound mental retardation was or was not entitled to a $40 pair of high-top tennis shoes.

Perhaps as a result, Engstrom said, the vaccine program has heavily relied on lawyers. Early on, some hoped that procedures would be straightforward and collaborative enough to make it unnecessary to hire counsel. But Engstrom discovered that petitioners need counsel – and often highly specialized legal help – to have any chance at successfully resolving their claims.

Lessons learned

Engstrom said her findings serve as a cautionary tale in two aspects. First, child vaccination rates in the United States are lower than they should be, she said, adding, “With the recent measles outbreak, the effects of this comparatively low vaccine rate seem to be coming home to roost.”

Originally, she said, the vaccine compensation program was supposed to represent a simple and effective safety net that would encourage more parents to immunize their children.

Applying that logic, she said, “If we want to convince more American parents to vaccinate their children, improving the VICP could help.”

Second, the findings, she said, shed light on the effectiveness of health courts and other options for resolving disputes beyond traditional courts, which are often suggested as possible solutions to medical malpractice litigation problems.

Engstrom calls health courts the “tort reform du jour.” In fact, legislation to enact health courts has been introduced in several state legislatures and both houses of Congress.

She said health courts would take medical malpractice cases out of the traditional court system and relocate them to a specialized venue. Health court supporters suggest that this relocation would promote faster, more predictable and less adversarial resolutions of disputes.

But Engstrom wrote that the vaccine fund example is cause for great concern: “Moving cases outside the court system in no way guarantees that claim resolution will be fast, simple or straightforward.”

She noted, “Before we charge forward in creating new compensation systems, we ought to make sure we understand how our past experiments with tort reform have fared – and we’ve got to learn the sometimes bitter lessons that come from our past mistakes.”


Stanford Law School Hosts First-Ever Global Corporate Governance Colloquium

This story was written by Jacob Hale Russell.

Ronald Gilson at the Global Corporate Governance Conference

Ronald Gilson welcomes business and law professors from around the world to the first Global Corporate Governance Colloquium. Photo by Misha Bruk.

How does a country’s left-right political orientation shape its financial markets? Have activist efforts by hedge funds improved corporate performance? Does requiring boards of directors to have a minimum number of women affect stock prices?

These were a few of the questions discussed at Stanford Law School (SLS) June 5 and 6 by 60 of top corporate governance scholars from around the globe. The unique conference, the first of its kind, included an interdisciplinary mix of business and law professors drawn from as far as the University of New South Wales in Australia and the Stockholm School of Economics, as well as U.S. universities including Harvard, Stanford, Columbia and Yale.

Idea brought to fruition

Ronald Gilson, Charles J. Meyers Professor of Law and Business at SLS, chaired the conference, a new annual project called the Global Corporate Governance Colloquium. The idea was dreamed up by Gilson along with Colin Mayer, dean of Oxford’s Said Business School, and Gerard Hertig of the Zurich Institute of Technology (ETH) in a conversation one afternoon in Oxford three years ago. Academics too often stay in their own silos, and international and interdisciplinary collaboration remains particularly rare in the corporate governance arena, even as corporations act in a global economy.

“The idea was, let’s create the single best global corporate governance conference,” said Gilson. “It’s more clear to everyone that the relevant academic community in this area is global, capital markets are global, but there isn’t an event that pulls together those people who are doing the best work across geographies and disciplines.”

Twelve leading schools are involved in the project – four each from the U.S., Europe and Asia. Stanford Law School was invited to host the first event, and future meetings will rotate among the continents and participating schools.

“We were honored to host this first-of-its-kind conference. Corporations and their lawyers operate in an increasingly global playing field, and this conference provided an international group of the top scholars a chance to break through geographic and disciplinary barriers,” said M. Elizabeth Magill, dean and the Richard E. Lang Professor of Law at SLS.

During the opening session, Gilson noted the appropriateness of hosting the inaugural event in Silicon Valley. “The Global Corporate Governance Colloquium was really an exercise in entrepreneurship in the pure Silicon Valley sense,” he said. “The [project] began with that magic phrase,‘what if.’ Now we’re about three years in, and today is our product launch.”

Five Stanford participants

The program included papers invited from well-known law and economics scholars and others chosen through a juried call for papers. Michael Klausner, the Nancy and Charles Munger Professor Business and Law at SLS, spoke at a lunchtime panel on empirical finance. Three professors from the Stanford Graduate School of Business also took part in the conference.

Klausner’s talk, titled “Take a Lawyer to Lunch (Please),” referenced an academic joke: If law professors want to do economically sophisticated work, they need an economist as a coauthor, but if an economist wants to do legally sophisticated work, they need only take a law professor to lunch.

In reality, Klausner argued, economists and finance scholars – many of whom were represented in the room – often get important legal dimensions wrong in their work. In particular, he critiqued indexes that have attempted to quantitatively rate governance quality. The truth is, he said, the data includes corporate behaviors that have no relationship to the problem of bad governance, which means that empirical studies that rely on those indexes to study the relationship between good governance and good performance are problematic.

Gilson reported that the participants were delighted with the inaugural event. “Sixty academics are rarely unanimous about anything, let alone the quality of a conference, but they were about their two days at Stanford Law School,” he said. The conference will reconvene in 2016 at the Stockholm School of Economics and in 2017 at the University of Tokyo.

Jacob Hale Russell is a lecturer in law and teaching fellow for Stanford Law School’s LLM Program in Corporate Governance and Practice.