Volume III: Issue 1 2016

Georgetown University Undergraduate Law Review

Volume III, Issue I Summer 2016

All rights reserved No part of this publication may be reproduced or transmitted in any form without the express written consent of the Georgetown University Undergraduate Law Review Copyright 2016

Georgetown University Undergraduate Law Review Volume III, Issue I Summer 2016 Editor-in-Chief Lauren Casale

Assistant Editors Anthony Albanese Gaia Mattiace Yun Joo Park Emma Patinga Nicholas Simon Sydney Winkler

Managing Editors Sarah Hannigan Jack Ludtke

Blog Staff Anita Williams - Editor Sharon Mo - Columnist Communications Director Brendan Saunders

Line Editors Nicholas Greco Joseph DiPietro Rachel Linton Matthew Healey Matthew Schneider Layout Editors Kelsey Yurek Casey Speer Financial Director Jee Young Kim

Editorial Board Emeriti Adrienne Jackson Morgan Birck Austin Baker Faculty Advisor Honorable Thomas L. Ambro Judge, Third Circuit, U.S. Court of Appeals

Undergraduate Law Review Letter from the Editor August 28, 2016 Dear Reader,

It is with great pleasure that I welcome you to the third issue of the Georgetown University Undergraduate Law Review. In our first issue we focused on studying the daily implications of law in our lives, and in the second issue we concentrated on the shortcomings of our justice system. In this third issue, we felt it was important to represent a variety of topics in accordance with the diverse issues that our legal system has jurisdiction over. This past year has been notable for the variety of changes and developments in the American judiciary. It was marked by a variety of substantial court decisions—covering topics from same-sex marriage, to religious freedom, employment discrimination, and pollution limits.

Additionally, we would like to mention another important event that transpired this past year, the sudden death of Supreme Court Justice Antonin Scalia, a Georgetown alum. Justice Scalia graduated from Georgetown College in 1957 as the class valedictorian. Though his opinions were often construed as divisive, he played an imperative role in many of the most important court decisions of our time. Furthermore, the debate over the selection of his successor has raised important questions about the Court and the Constitution. Ultimately, it is our hope that readers of this issue will find it to be a comprehensive one that encompasses a variety of themes that are applicable both in the present-day and historically.

We would like to thank all those who have made this issue a success. This publication is the result of careful dedication and work that could not have been done without the support from our friends, family, the Government Department, the Georgetown Career Center, the Georgetown Law School and the Georgetown Pre-Law Society. We would also like to thank our faculty advisor, Judge Ambro. Without his words of support and his advice, the publication of this journal would not have been possible.

We hope you enjoy reading this publication as much as we enjoyed putting it together. We would love to hear your comments on this publication. Please do not hesitate to reach out to us at guundergraduatelawreview@gmail. com. Sincerely,

Lauren Casale Editor-In-Chief

Table of Contents A False Bargain: The Bureaucratic, Ethical, and Financial Ramifications of 1 the Death Penalty Jeff Smith A discussion of the game theory and consequences of the death penalty within the United States

Amending a Broken System: The Negative Effects of the United States’ Current Immigration Policies onto EB-5 Visa Petitioners Louize Fiore

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A piece on the United States’ visa policy and the adverse effects it has on immegrants and immegration policy

Wrongful Confession and the United States Prosecutor Blake Atherton

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An examination at the policy behind the increase in unjust imprisonments in the United States criminal justice system

Constitutional By Any Measure: Section 203 of the Voting Rights Act of 1965 30 Brigit Rossbach A discussion of Voter ID laws and the legacy of civil rights in voter registration policy

The Battle for Telemedicine: Teladoc v. Texas Medical Board Robert Cortes, Marisa Finley J.D. LLM, J. James Rohack M.D. An analysis of telemedicine legislation and legality in Texas

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A False Bargain:

The Bureaucratic, Ethical, and Financial Ramifications of the Death Penalty Jeff Smith Georgetown University Abstract Historically, the death penalty debate has been intently focused on whether and to what extent a threat of execution affects the decision-making of malefactors before committing a crime. Does fear of the death penalty deter capital crimes at a higher marginal rate than other forms of punishment, such as life imprisonment? For decades, death penalty advocates have championed studies that demonstrate an annual reduction of murders per U.S. execution, while detractors have posited a zero or even negative marginal deterrence effect, known as the “brutalization hypothesis.” Although 87 percent of the nation’s most well-known criminologists as of 2009 believe that the death penalty does not induce positive marginal deterrence, the majority of our nation’s legal jurisdictions still pursue capital punishment. While criminologists continue to seek incontrovertible statistical evidence for (or against) marginal deterrence, this article instead considers criminal responses to the death penalty ex post, as well as how they affect other facets of the criminal justice system. By framing these responses as real-world manifestations of game theory’s Prisoner’s Dilemma, and evaluating leading statistical analysis and sociological perspectives on the death penalty, this discussion sheds light on the inauspicious bureaucratic, ethical, and financial ramifications of capital punishment on the American judicial system.

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A False Bargain: The Bureaucratic, Ethical, and Financial Ramifications of the Death Penalty

Introduction

other forms of punishment.4 Despite this prolific ideological coalition, the majority of our nation’s legal jurisdictions—including thirty-two states, the federal government, and the U.S. military—still pursue capital punishment.5 As Ilyana Kuziemko, Professor of Economics at Princeton University, proposes, this debate will not be resolved on the plane of deterrence. Rather, our dialogue on capital punishment must incorporate criminal responses to the death penalty ex post, as well as how they affect other facets of the criminal justice system.6 By framing these responses as real-world manifestations of game theory’s Prisoner’s Dilemma, this discussion will adopt an economic lens to evaluate the statistical analysis of Kuziemko and other contemporary sociological perspectives on the death penalty. In turn, this will shed light on its inauspicious bureaucratic, ethical, and financial ramifications on the American judicial system.

Historically, the death penalty debate has been intently focused on whether and to what extent a threat of execution affects the decision-making of malefactors before committing a crime.1 In other words, criminologists are generally most concerned with whether fear of the death penalty deters capital crimes at a higher marginal rate than other forms of punishment, such as life imprisonment. For decades, death penalty advocates have championed studies such as a 1975 investigation by Isaac Ehrlich, Chair of the Department of Economics at the University of Buffalo, that isolated a mean annual reduction of seven to eight murders per U.S. execution from 1933 to 1969.2 Conversely, detractors have posited a zero or even negative marginal deterrence effect. The latter theory, dubbed the “brutalization hypothesis,” was famously advanced in a statistical inquiry by Professors William J. Bowers and Glenn Pierce of Overview of Pertinent Game Theory Northeastern University that uncovered an avThe Prisoner’s Dilemma is a quinteserage increase of two homicides in each month following a U.S. execution from 1907 to 1963.3 sential game theory scenario. Its hypothetical premise was formally developed by mathemaAccording to a survey conducted by ticians Merrill Flood and Melvin Dresher of Professor Michael Radelet, Chair of the Depart- the RAND Corporation.7 Two criminals, A and ment of Sociology at the University of Colo- B, are arrested for a crime that carries a threerado-Boulder, 87 percent of the nation’s most year prison sentence, but the police do not have well-known criminologists as of 2009 believe 4 Michael L Radelet & Traci L Lacock, Rethat the death penalty does not induce a posi- cent Developments: Do Executions Lower Homitive marginal deterrence of homicide versus cide Rates?, 99 J. CRIM. L. & CRIMINOLOGY 1 Jeffrey A. Fagan, CAPITAL PUNISHMENT: DETERRENT EFFECTS & CAPITAL COSTS COLUMBIA LAW SCHOOL (2016), https://www.law.columbia.edu/law_school/communications/reports/summer06/capitalpunish.

2 William J. Bowers & Glenn L. Pierce, Deterrence or Brutalization: What Is the Effect of Executions?, 26 CRIME & DELINQUENCY 453–484 (1980).

3 Costs of the Death Penalty, COSTS OF THE DEATH PENALTY, http://www.deathpenaltyinfo.org/costs-death-penalty (last visited Apr 28, 2015).

489-508 (2009).

5 States With and Without the Death Penalty, DEATH PENALTY INFORMATION CENTER, http://www.deathpenaltyinfo.org/states-and-without-death-penalty (last visited Apr 27, 2015).

6 Ilyana Kuziemko, Does the Threat of the Death Penalty Affect Plea Bargaining in Murder Cases? Evidence from New York’s 1995 Reinstatement of Capital Punishment, 8 AM. LAW & ECON. REV. 126, 116-142 (2006).

7 PRISONER’S DILEMMA STANFORD ENCYCLOPEDIA OF PHILOSOPHY (2014), http://plato.stanford.edu/entries/prisoner-dilemma/ (last visited Apr 27, 2015).

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A False Bargain: The Bureaucratic, Ethical, and Financial Ramifications of the Death Penalty sufficient evidence to make the charges stick.

Prisoners A and B are separated and individually interrogated by a criminal prosecutor. Each prisoner is offered a reduced sentence for cooperating with the prosecutor. Namely, if Prisoner A or B agrees to testify against his partner, then he will be released and his coconspirator will serve the three-year sentence by himself. If both A and B agree to testify against the other, however, they will both serve a two-year sentence.

Finally, if A and B both refuse to testify against the other, they will be convicted of a lesser charge and each serve a single year in prison.

For the rational prisoner, the underlying intuition is that defecting on one’s partner is the dominant strategy. Regardless of the coconspirator’s decision, the first prisoner will garner himself the slightly better payoff by betraying the second. When faced with the uncertainty of a partner’s decision, it is in our best interest to defect and protect ourselves. What is most fascinating about the Prisoner’s Dilemma, however, is that the dominant strategy fails to arrive at the optimal result of a one-year sentence for each criminal; this can only be achieved if both A and B cooperate with one another and refuse to testify. Hence, game theory raises some compelling questions about the respective payoffs associated with cooperation and betrayal, as well as the bargaining power of the prisoner.

examining real-world Prisoner’s Dilemmas, it is important to consider what is at stake for criminals. They face the legal penalties associated with the primary charge, or alternatively the mitigated sentence offered in exchange for defecting. The disparity between the two punishments is crucial. As George Washington University Professor Anthony Yezer considers in Economics of Crime and Enforcement, a wider gap in the severity of the sentences traditionally provides a greater incentive to defect, thereby adhering to the dominant strategy of the theoretical model.9 A high-profile example of this phenomenon was the case of Gambino family member Salvatore “Sammy the Bull” Gravano, who was a major player in the one of the largest organized crime operations on the eastern seaboard in the 1980s and 1990s.10 Facing the death penalty for a host of murders, Gravano defected, pled guilty to 19 murders, and provided testimony against his boss—Gambino patriarch and “Teflon Don”—John Gotti.11 In doing so, Gravano facilitated the FBI’s conviction of Gotti and received a deal that reduced his sentence to a mere five years in prison.12

In the eyes of accused felons like Gravano, the fissure between two sentences where the death penalty is a possibility can be appropriately described as a chasm. As a result, the death penalty can certainly be used to extract criminal testimony. Whether the statute allows Statistical Analysis prosecutors to do so at a higher marginal rate To put it in context, the relationship be- than if execution were not a part of the criminal tween the Prisoner’s Dilemma and the death justice system, however, is an open question. penalty, roughly 36 percent of all U.S. capital Yezer cites a 2006 comparative statistical analcases from 1923 to 1990 involved codefen- ysis by Kuziemko that addresses this inquiry dants.8 Thus, in many instances, the Prisoner’s by juxtaposing the rates of plea-bargaining for Dilemma is highly germane to the discussion murder cases prior to and after New York’s reinof plea-bargaining and the death penalty. When 8 James W. Marquart, Sheldon Ekland-Olson & Jonathan R. Sorensen, THE ROPE, THE CHAIR, AND THE NEEDLE: CAPITAL PUNISHMENT IN TEXAS, 1923-1990 116 (University of Texas Press 1998) (1998).

9 Anthony M. Yezer, ECONOMICS OF CRIME AND ENFORCEMENT 300 (Routledge 2014) (2014).

10 Id. 11 Id. 12 Id.

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A False Bargain: The Bureaucratic, Ethical, and Financial Ramifications of the Death Penalty statement of the death penalty in 1995.13 Before appraising the study’s findings, we acknowledge a pair of limitations in Kuziemko’s pool of evidence. First, her data set represents a small proportion of all plea-bargain cases because the death penalty is used so rarely relative to alternative sentences. New York enacted just 0.004 death sentences per 10,000 people from 1995 to 2007—the fewest of all 38 states that employed capital punishment at any time from 1977 through 2013.14 Secondly, Yezer cautions that, in cases involving capital crimes such as murder, prosecutors are often hesitant (or lack the flexibility altogether) to extend a plea-bargain to a prisoner facing execution. The exception occurs, however, in cases where the testimony of one prisoner can guarantee the conviction of another criminal. This mimics the blueprint of Flood and Dresher’s Prisoner’s Dilemma, and thus renders Kuziemko’s research highly relevant to our discussion.15

Despite an increase in sentence-bargaining, Kuziemko’s findings reveal a shocking plunge in the level of charge-bargaining.18 This subset of plea-bargaining is exhibited by the dominant strategy of the classic Prisoner’s Dilemma. In charge-bargaining, Criminal A agrees to testify against B in exchange for the prosecutor dropping the charges against A altogether.19 Under real-world charge-bargaining guidelines, a prosecutor offers to lessen the severity of a charge provided that the defendant pleads guilty to the mitigated charge.20 As a reward, the defendant also receives a shorter sentence for the lesser charge.21 Statewide, New York prisoners fearing murder charges in a county in which the district attorney had previously prosecuted a death sentence were 49.8 percent less likely to obtain charge-bargains (meaning they were unable to plead their primary charge down to a lesser one, and their cases proceeded to trial) than prisoners in counties in which a death sentence had never been prosecuted.22 In 2009, Kent Scheidegger, legal director and general counsel of the Criminal Justice Legal Foundation, corroborated this trend with the publication of a nationwide study that identified criminals in death penalty counties as 3.8 times more likely to have entered sentence-bargains (of 20 or more years imprisonment) for their original charge than their counterparts in counties without the death penalty.23 Thus Kuziemko ultimately concludes that, at the national level, the increase in sentence-bargaining wrought by the death penalty is essentially offset by the simultaneous decline in charge-bargaining.24

Compared to the rate of guilty pleas before 1995 when execution was banned, from 1995 to 2007 Kuziemko’s study observed a 26 percent rise in the number of prisoners who entered guilty pleas for the purpose of “sentence-bargaining” rather than face trial.16 This suggests a strong association between the impending threat of capital punishment and a criminal’s willingness to cooperate with prosecutors for a lighter sentence. This conclusion is substantiated by a statistically insignificant change in the number of sentence-bargains among Kuziemko’s control group—New York criminals charged with non-murder, violent felonies for which death sentences were applied Ethics and Bureaucratic Efficiency of neither before nor after 1995.17 18 Id. 13 Id. 14 Death Sentences Per Capita by State, DEATH PENALTY INFORMATION CENTER, http://www.deathpenaltyinfo.org/death-sentences-capita-state (last visited Apr 27, 2015).

15 Yezer, supra note 10, at 300.

16 Ilyana Kuziemko, supra note 6.

17 Id.

19 Id. at 128.

20 Id. at 120.

21 Id. 22 Id. at 231.

23 Kent S Scheidegger, The Death Penalty and Plea Bargaining to Life Sentences, CRIM. JUST. LEGAL FOUND. 1–17, 1-17 (2009).

24 Kuziemko, supra note 6, at 140.

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A False Bargain: The Bureaucratic, Ethical, and Financial Ramifications of the Death Penalty

Plea-Bargaining As the findings of Kuziemko and Scheidegger demonstrate, there are respects in which the ideal and empirical Prisoner’s Dilemma diverge. The theoretical framework presupposes that a criminal’s dominant strategy carries sufficient leverage to negotiate his charge as opposed to just his sentence. In other words, we assume that the prisoner’s information is of comparable value to that of the charge-bargain being offered by the prosecutor and that both parties view the exchange as equally and mutually beneficial. Nobody is strong-armed; rather, the criminal and prosecutor voluntarily agree to this quid pro quo. In the actual justice system, however, the case of capital punishment tends to tip the scale in favor of the prosecutor. As Yezer concludes, “the threat of the death penalty generally increased the bargaining power of the prosecutor.”25 In turn, his assessment points towards Kuziemko’s results: “an increase in pleas and a lower fraction of pleas with reduced charges.”26

tration, of the six Nebraskan suspects famously threatened with execution for the rape and murder of Helen Wilson in 1985, five entered guilty pleas and four confessed in order to reduce their sentences and avoid the death penalty.28 They were later exonerated by DNA evidence despite spending over twenty years behind bars.29 It is logical to conclude that the death penalty acts as a legal trump card for prosecutors; it is a negative incentive that psychologically forces the hand of the prisoner. Accordingly, we would surmise that the dominant strategy of the Prisoner’s Dilemma holds true—we defect to save ourselves from the threat of the most severe punishment, whether guilty or innocent. In practice, though, is such an ethically dubious approach to reaping convictions statistically justifiable? Returning to Kuziemko’s study, the answer appears to be no. While this approach psychologically favors prosecutors on the side of sentence-bargaining, some death penalty prosecutors decline the opportunity for charge-bargaining. As Kuziemko points out, it is no secret that “charge bargains benefit defendants more than sentence bargains do.”30 A charge-bargain, as already noted, allows a prisoner to reduce the charge against him, as well as significantly shorten his prison sentence, whereas a sentence-bargain only allows the latter (and likely on a smaller magnitude). Conversely, for the prosecutor sentence-ing is far more desirable because the state offers a lower sentence without having to reduce the charges.

Thus, the reason that the death penalty does not encourage charge bargaining is that the threat of execution gives prosecutors the leverage to pursue the type of plea-bargain that most favors the district attorney’s office. As a result of these

We might ask ourselves where the impetus for this statistical phenomenon truly lies.

The answer is likely rooted in psychology. With the death penalty hanging over a criminal’s head, he is liable to accept any offer that will grant him a lighter sentence even if it means accepting a charge that he did not commit. Indeed, innocents falling victim to the Prisoner’s Dilemma is an ethical deficiency of the justice system’s framework. In one psychological experiment by Professors Lucian Dervan and Vanessa Edkins of Southern Illinois University and the Florida Institute of Technology, respectively, over 50 percent of innocents chose to take the equivalent of a plea deal as opposed to Problem, 103 J. CRIM. L. & CRIMINOLOGY 1, plead truthfully and risk trial.27 By way of illus- 34 (2013).

25 Yezer, supra note 10, at 300.

26 Id. 27 Lucian E. Dervan and Vanessa A. Edkins, The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence

28 Nebraska - General Information, DEATH PENALTY INFORMATION CENTER, http:// www.deathpenalty.org (last visited Apr 27, 2015).

29 Id. 30 Kuziemko, supra note 6, at 120.

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A False Bargain: The Bureaucratic, Ethical, and Financial Ramifications of the Death Penalty misaligned incentives, the overall marginal effect of capital punishment on plea-bargaining is essentially neutralized in the manner that Kuziemko’s figures suggest. Moreover, taking into account that some of these confessions are coerced, the threat of the death penalty jeopardizes the moral integrity of the interrogation and prosecution process.

first-degree murders? Meanwhile, following New York’s abolition of the death penalty in 2007, a consensus of prosecutors in other states discerned no impediment to their ability to procure guilty pleas and convictions for otherwise would-be capital crimes.34 Bearing these figures in mind, along with Kuziemko’s demonstration that the death penalty’s influences on the two flavors of plea-bargaining virtually negate one Despite this moral hazard for those another, there is a cogent, statistic-backed arguwithin the criminal justice system, proponents ment that capital punishment is not crucial to of capital punishment may still maintain that the criminal system’s ability to plea-bargain and the threat of execution is necessary in order to secure guilty convictions. effectively obtain criminal confessions and secure sentences of life imprisonment. Contrary Justice System, Sans Plea-Bargaining to this belief, states that do not practice capital In light of the real-world Prisoner’s Dipunishment actually boast some of the highest rates of life sentences without parole. In fact, lemma, it is worth entertaining the possibility out of the nation’s five states with the highest of a criminal justice system without plea-barnumber of life sentences without parole convic- gaining altogether. Game theory informs us tions, three do not practice the death penalty.31 that people will choose the dominant strategy A bipartisan criminal justice think-tank, Equal and defect against their counterpart, thereby Justice USA, raises another incisive criticism of cooperating with the incentive offered by the the effectiveness of the death penalty. During prosecutor. Yet, what if these incentives were the decade in which New York employed it, taken away? Would eliminating the Prisoner’s prosecutors obtained a greater proportion of Dilemma model provide a rationale to salvage sentence-bargains for second-degree murders the death penalty statute? The results of a 1980 than first-degree murders.32 This is inconsistent National Institute of Justice report illustrate that with the notion that the threat of the death pen- after plea- bargains were abolished in Alaska alty catalyzed plea-bargaining, given that capi- in 1975, “guilty pleas continued to flow in at tal punishment was always a penal prospect in nearly undiminished rates” and that “defendants first-degree murder cases and not for second-de- pled guilty even when the state offered them 35 gree murders.33 If the death penalty is so effec- nothing in return for their cooperation.” These tive in securing life without parole, why was findings suggest that prisoners still followed the the proportion of bargains not higher among dominant strategy of the Prisoner’s Dilemma even though the prosecutor did not offer them 31 Ashley Nellis, LIFE GOES ON: THE HIS- the same incentives that are offered to our hyTORIC RISE OF LIFE SENTENCES IN AMERIpothetical criminals. One explanation for this CA 6 (The Sentencing Project) (2013). phenomenon is that most defendants in violent 32 The Plea Bargain Myth, EQUAL crime cases are given much longer sentences JUSTICE USA, https://web.archive.org/ web/20140425035948/http://ejusa.org/learn/plea bargains (last visited Apr 27, 2015).

33 Deborah L. Heller, Death Becomes the State: The Death Penalty in New York - Past, Present, and Future, 28 PACE LAW REVIEW 589–615, 589-615 (2008).

34 Rudy Lardini, A Year Later, State Assesses Justice Without Death Penalty, NEW JERSEY STAR LEDGER, December 15, 2008.

35 Michael L. Rubinstein, Stevens H. Clarke & Teresa J. White, ALASKA BANS PLEA BARGAINING 80 (National Institute of Justice) (1980).

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A False Bargain: The Bureaucratic, Ethical, and Financial Ramifications of the Death Penalty when they take their case to trial as opposed to pleading guilty beforehand. Indeed, a national log-linear regression analysis by Michael Rubinstein and Teresa White of the Law and Society Association demonstrates that sentences as a result of a trial verdict are, on average, fourand-a-half times longer than sentences given for a guilty plea (with or without a formal quid pro quo system of plea-bargaining).36 Granted, in an arguably biased justice system, other sociological attributes, including a defendant’s income and racial background, factor into this calculus.37 Nevertheless, there seems to be a compelling argument that the specter of trial alone can elicit guilty pleas from criminals. Hence, if prisoners might be willing to cooperate with authorities even in the absence of charge incentives, and the death penalty does not benefit overall plea-bargaining rates at a statistically significant level, what does the prosecution have to gain from capital punishment?

The Prisoner’s Dilemma also poses a constitutional quandary, as plea-bargaining compels defendants to jettison their right to habeas corpus. One justification for this policy could be that waiving habeas corpus leads to fewer trials and as a result saves precious time and energy for the prosecutors and saturated courtroom dockets. Further, Rubinstein and White’s analysis shows that disposition times (the period between when a legal complaint or charge is filed and a court’s final verdict) decreased after Alaska discontinued plea-bargains. In Anchorage, disposition times for felonies fell from an average of 192.1 days to 89.5 days in just one year following the abolition of plea-bargaining.38 In short, cases were settled more efficiently without plea-bargaining. This change can perhaps be ascribed to the elimination of what one Alaskan judge noted to be time 36 Michael L. Rubinstein & Teresa J. White, Alaska’s Ban on Plea Bargaining, 13 LAW & SOC’Y REV. 367–383, 367-383 (1979).

37 Id. 38 Id. at 374.

wasted “haggling over sentences and listening to a long story about what a good guy the defendant is” during the bargaining period.39 Even so, with 90 percent of criminal convictions garnered by guilty pleas, it is improbable that plea-bargaining will be abolished in the near future.40 Until further reexamination convinces the judicial system otherwise, the Prisoner’s Dilemma is here to stay.

Financial Ramifications of Capital Punishment It is no secret that the death penalty is expensive. In New York, California, and North Carolina, death penalty trials cost a state government between $200,000 and $1.5 million (a mean of $500,00 more than a non-capital trial), excluding the additional fees associated with the appeals process.41 While the penalty itself poses substantial costs, the statute authorizing capital punishment has the potential to defray expenses. In other words, the statute would make economic sense if the threat of execution were able to sufficiently increase the overall number of plea-bargains such that the exorbitant costs of capital cases that go to trial would be recouped.

But as Kuziemko’s aforementioned research has shown, the death penalty does not appear to augment the aggregate level of successful of plea-bargains.42 Another problem is that the death penalty does not offer much of a reprieve to the costs of the prison system. Only one-tenth of all American criminals sentenced to death are actually executed, which means that for the most part they serve life-long prison sentences.43 Even among those who are put to death, as of 2012 the average time between their sentence and execution was gauged at 190 months.

39 Id. at 379.

40 Kuziemko, supra note 6, at 118.

41 Id. at 117; Scheidegger, supra note 24, at 1.

42 Kuziemko, supra note 6.

43 Id. at 117.

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A False Bargain: The Bureaucratic, Ethical, and Financial Ramifications of the Death Penalty Again, this raises expenses that are undoubt- edly borne in substantial part by American taxpayers. Since 1983, the death penalty has cost New Jersey citizens alone more than $253 million dollars for just 60 death sentences—50 of which were ultimately reversed.45 The figures are even more alarming in larger states such as California. Since 1978, the Golden State has spent $1.94 billion on pre-trial and trial fees, $925 million on automatic and habeas corpus appeals, and $1 billion on incarceration for capital offenders.46 Conservative estimates suggest that eliminating the death penalty would lower the state’s annual fees from $137 million to just $11.5 million.47 Thus, maintaining the statute imposes an unnecessary financial burden on the criminal justice system. Is it economically rational to uphold such a policy?

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Conclusion Undoubtedly the death penalty debate will rage on, as will the controversy of plea-bargaining. In the meantime, the purpose of this discussion is to call attention to the ex post effects of capital punishment on the inner workings of the criminal justice system. It is a focus that has been suppressed while criminologists seek incontrovertible statistical evidence for (or against) marginal deterrence—a pursuit that has become somewhat of a Grail Quest. In doing due diligence on the aforementioned bureaucratic, ethical, and financial ramifications of execution, I suggest the disutility of capital punishment in the American criminal justice system and call for further dialogue on its abrogation in the future.

44 Time on Death Row, DEATH PENALTY INFORMATION CENTER, http://www.deathpenaltyinfo.org (last visited Apr 28, 2015).

45 Costs of the Death Penalty, DEATH PENALTY INFORMATION CENTER, http://www. deathpenaltyinfo.org/costs-death-penalty (last visited Apr 28, 2015).

46 Id. 47 Id.

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Amending a Broken System:

The Negative Effects of the United States’ Current Immigration Policies onto EB-5 Visa Petitioners Louize Fiore Nova Southeastern University Abstract The Supreme Court has established that the right of due process and equal protection under the Fifth and Fourteenth Amendments extends to noncitizens. In attempting to balance these fundamental rights with Congress’ regulatory powers over immigration in the United States, the Supreme Court has also held that the United States government is not barred from enacting laws that affect noncitizens that would be unacceptable if applied to citizens. This distinction has created an immigration system that provides the Department of Justice and its agencies with unregulated power over immigration policies in the United States. The lack of action by the Supreme Court and Congress has provided a fragmented and destructive immigration system in the United States that legally harms noncitizens. By reviewing the application of the federal statutes that govern EB-5 Visa petitions and the negative consequences it has on noncitizens, it becomes apparent that noncitizens are frequently deprived of any fair notice and legal protection under the law by the United States Citizenship and Immigration Services Consequently, the Supreme Court and Congress must intervene in the implementation of these statutes by the USCIS in order to create a unified, transparent, and fair immigration adjudication process for petitioners.

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Amending a Broken System: The Negative Effects of the US’ Current Immigration Policies

Introduction The United States’ current immigration system is fragmented and contradictory to the legal norms of the nation. This system is directly correlated with the Supreme Court’s endorsement of “the proposition that Congress may make rules as to aliens that would be unacceptable if applied to citizens.”1 The Court has also maintained that “reasonable presumptions and generic rules, even when made by the INS rather than Congress, are not necessarily impermissible exercises of Congress’ traditional power to legislate with respect to aliens.”2 Accordingly, Congress has given its unregulated powers to the Department of Justice and more specifically to the USCIS. However, these governmental agencies have adopted the view that Constitutional protections do not extend to immigration, and instead have argued that noncitizens are entitled to diminished due process rights, especially as it relates to immigration law.3

reviewing these personnel.4 This bureaucratic structure provides the Department of Justice, through the USCIS, with broad latitude to interpret, amend, and alter immigration statutes through its Operation Instructions and Individual Policy Memorandums.5 The issue arising from this unregulated power is that each immigration adjudicator in each USCIS Service Center has the power to implement what he or she interprets as the meaning of immigration laws.

Consequently, the Supreme Court allows an immigration system that lacks legal transparency, uniformity, or protections for noncitizens.

This is evident in the adjudication of petitions. In 1990, Congress established an Investor Visa Program called the EB-5 Visa.6 Under this visa, a foreigner may obtain permanent residency status in the United States through investing in a new business venture with an initial capital investment of $1,000,000 and creating at least ten full-time employment opportunities.

7 Because the USCIS favors petitioners who By granting carte blanche to Congress seek to create businesses in rural and/or high and the USCIS in all matters relating to immi- unemployment areas, the initial capital for firms gration laws, the Supreme Court has allowed in these areas is lowered to $500,000.8 our legislatures to create a system in which their In 1993, Congress enacted the Regional laws are rewritten by the Department of Justice and reinterpreted by specific USCIS Ser- Center Pilot Program in order to counteract the vice Centers. This has directly led the USCIS low percentage of participation by foreigners in to become largely responsible for immigration the EB-5 Visa Program. This program expanded policies without any reproach. Supporting this the definition of job creation by including “indiargument is that immigration judges and mem- 4 Family, Murky Law and the Challenges bers of the Administrative Appeal Unit (AAU) Facing Immigration Removal and Benefits Adjuand Board of Immigration Appeals (BIA) are dication, at Journal of the National Association of employees of the Department of Justice and ex- Administrative Law Judiciary at 51. (2011). ist by regulation only where the Attorney Gen- 5 Family, Murky Law and the Challenges eral is responsible for hiring, terminating, and Facing Immigration Removal and Benefits Adjudi1 See Demore v. Kim, 538 U.S. 510 (2003), at 522.

2 See Demore v. Kim, at 526.

3 See Testimony of Larry Parkinson, Deputy General Counsel, FBI, before H.R. Subcomm. on Immgr. of the Jud. Comm., The Secret Evidence Repeal Act, Hearings on H.R. 2121, 106th Congo 18,36 (Feb. 10,2000)

cation at 66. Supra. (2011).

6 USCIS Policy Memorandum, (2013).

7 Singer & Gaides, Improving the EB-5 Investor Visa Program: International Financing for U.S. Regional Economic Development, at Project on State and Metropolitan Innovation at 3. (2014).

8 Singer & Gaides, Improving the EB-5 Investor Visa Program: International Financing for U.S. Regional Economic Development at 3. Supra.

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Amending a Broken System: The Negative Effects of the US’ Current Immigration Policies rect jobs.”9 In order for an entity to be a regional center and obtain investments from immigrants, it must file the I-924 Form disclosing its proposed industry, geographic location, marketing plan, and estimated job creation to the USCIS.10 Upon the proposed project being approved, the regional center may seek/accept immigrant investments.

employment opportunities.13 Full-time employment is defined as “employment in a position that requires at least thirty-five hours of service per week at any time, regardless of who fills the position.”14 Because the USCIS favors petitioners who seek to create businesses in rural and/ or high unemployment areas, the initial capital for firms in these areas is lowered to $500,000.15

Through a murky bureaucracy, the United States has created an immigration system that is detrimental to noncitizens and contradictory to the capitalist interest that led to the creation of EB-5 Visas. Using the statutes and application of EB-5 Visa petitions as a case study, this article demonstrates how the USCIS has continuously re-written congressional laws. Accordingly, this article proposes that Congress must amend the United States’ immigration statutes to diminish the large liberties provided to the USCIS and its Service Centers. The Supreme Court has the power to intervene and should in order to establish a universal interpretation of these statutes pursuant to the Administrative Procedure Act (APA).11

In addition to personal documentations, petitioners must submit a business plan that: (1) demonstrates the immigrant’s investment of capital; (2) specifies the new commercial enterprise; and (3) explains in detail how the enterprise will directly create new jobs.16 The information submitted to the USCIS is reviewed using the “Preponderance of the Evidence Standard,” which requires that applicants demonstrate that what is being claimed is more likely to be true and/or occur.17 This standard is lower than the “Clear and Convincing Standard” and the “Beyond a Reasonable Doubt Standard.”18 However, due to the ambiguity of these statutes, immigration adjudicators are authorized to draft and rely heavily on agency guidance materials such as Operation Instructions and Individual Policy Memorandums.19

The Flawed Interpretations of Immigration Statutes by Immigration Adjudicators

In 1993, Congress began the Regional Center Pilot Program in order to counteract the Congress established the EB-5 Visa low percentage of participation by foreigners in Program, which became part of the Immigration and Nationality Act of 1990 (INA), with 13 Singer & Gaides, Improving the EB-5 the purpose of attracting new venture capital- Investor Visa Program: International Financing for ists while creating new jobs within the United U.S. Regional Economic Development, at Project States.12 Under the EB-5 Visa, a foreigner may on State and Metropolitan Innovation at 3. (2014). obtain permanent residency status in the United 14 8 USC §1153(5)(D).

Singer & Gaides, Improving the EB-5 States by investing in a (public or private) busi- 15 ness venture with an initial capital investment Investor Visa Program: International Financing for of $1 million and creating at least ten full-time U.S. Regional Economic Development at 3. Supra.

16 USCIS Policy Memorandum at 2, 9 Singer & Gaides, Project on State and Met- (2013). Supra. ropolitan Innovation. Supra.

10 Supra.

11 Becker, American Bar Association in Volume 52 N. 1. Supra.

12 USCIS Policy Memorandum, (2013).

17 Supra at 2.

18 Supra.

19 Family, Murky Law and the Challenges Facing Immigration Removal and Benefits Adjudication at 66. Supra. (2011).

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Amending a Broken System: The Negative Effects of the US’ Current Immigration Policies the EB-5 Visa Program.20 This program expanded the definition of job creation by including “indirect jobs,” which is defined as employment held by employees of the producers of material, equipment, or service that are used for the new enterprise.21 Therefore, unlike the requirement for ten full-time employees, regional centers have the ability to include ten full-time subcontractors and/or the employees of other entities with whom the regional center contracts.

For an entity to be a regional center and obtain investments from immigrants, it must file the I-924 Form disclosing its proposed industry, geographic location, marketing plan, and estimated job creation to the USCIS.22 Upon the proposed project being approved, the regional center may seek/accept immigrant investments.

However, once the USCIS approves a regional center based on the “proposed” business model, the regional center is not obligated to submit any further documentation in order to maintain its status with the USCIS.

to the project’s business plan.25 Therefore, the immigrant investor, who typically owns only a percentage of the entity, faces all the negative penalties if an immigration adjudicator finds that the regional center’s business failed.

One of the difficulties for noncitizens in seeking legal remedies when harmed by the decisions of these individual immigration adjudicators is the jurisdictional structure for the review of these petitions. The only method for non-immigration courts to review the actions by the USCIS is pursuant to the APA.26 Under the APA, the right to judicial review is offered to “any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute.”27 The judicial scope for review for agency’s actions are limited to decisions that are found to be: “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) The USCIS decides if an immigrant in- in excess of statutory jurisdiction, authority, or vestor is approved for conditional or permanent limitations, or short of statutory right; (D) withresidence independently.23 More specifical- out observance of procedure required by law.”28 ly, because the USCIS is solely reviewing the Nevertheless, because the federal statprogress of the regional center for the purposes utes lack any specific definitions relating to of approving the investor’s EB-5 Visa petition, there is no penalty to the center if it failed to EB-5 Visas, the courts are in the difficult posidemonstrate that the required jobs were creat- tion of determining which actions by the USCIS ed during the two-year probationary period.24 resulted in a legal wrong. This becomes prejuThe immigrant investor bears the responsibility dicial to the petitioner seeking review because of meeting these requirements or risks having the courts typically enter their judgment using to leave the country due to “material changes” only the Operation Instructions and Individual Policy Memorandums drafted by the same immigration adjudicators that are employed by the 20 Singer & Gaides, Improving the EB-5 defendant in the petitioner’s suit.29 Because this Investor Visa Program: International Financing for U.S. Regional Economic Development, at Project on State and Metropolitan Innovation at 3. Supra.

21 Singer & Gaides, Project on State and Metropolitan Innovation. Supra.

22 Supra.

23 Singer & Gaides, Project on State and Metropolitan Innovation at 10. Supra.

24 Supra at 10.

25 Supra.

26 Becker, American Bar Association in Volume 52 N. 1. Supra.

27 5 USC §702 28 5 USC §706 29 Family, Murky Law and the Challenges Facing Immigration Removal and Benefits Adjudication, at Supra, at 66. (2011).

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Amending a Broken System: The Negative Effects of the US’ Current Immigration Policies provides federal judges with biased evidence and a very narrow interpretation of the immigration laws under review, these judges must rely on their own personal views in order to balance the lack of legal precedent. This has led to the absence of legal uniformity among federal courts as to when and how a petitioner has been wronged by an USCIS agency.

on employment relationships.35 Its standard of review is typically de novo review, yet it may alter its standard without notice to the petitioners seeking appeals.36 Additionally, the initial adjudicating officer reviews the appeal and decides whether to grant the appeal or to forward it to the AAU.37 If the appeal is sent to the AAU, another officer reviews it and drafts a decision.

Although the AAU’s decisions are subject to suThe lack of legal guidance also cor- pervisory review by an “Editor,” they are anonyrelates with the jurisdictional structure and in- mous, issued solely under the name of the AAU, ternal review process of the USCIS itself. The and have no precedential value.38 A petitioner bureaucratic organization is divided into three may seek relief from the federal courts through chains of commands, which has the Director- the jurisdiction established by the APA only afates as the lowest position, the Program Offic- ter a decision has been issued by the AAU.39 es in a higher position, and Directors in upper command.30 The Directorates house the frontBy stating that “reasonable presumpline adjudicators who are employees of USCIS tions and generic rules, even when made by and not required to be lawyers.31 This is despite the USCIS rather than Congress, are not nectheir jobs requiring independent research, in- essarily impermissible exercises of Congress’ terpretation, and analysis of laws, regulations, traditional power to legislate with respect to operating instructions, references, legislative aliens,”40 the Supreme Court has confirmed that history, state and local laws, international trea- immigration adjudicators are authorized to draft ties, and other legal references.32 Additionally, and rely heavily on agency guidance materials immigration adjudications are unpredictable, as such as Operation Instructions and Individual there is no binding legal standard that one par- Policy Memorandums.41 Nevertheless, because ticular immigration adjudicator must apply for these immigration officers are not immigraany given petition.33 tion judges and are not required to have legal training, agency guidance materials have led Muddling any concept of transparency to immigration decisions that are contradictory and legal uniformity, the appellate process for to and distinct from the actual written statutes. immigration petitions is reviewed through an- For instance, a Memorandum issued in 1997 other set of bureaucratic organizations. Housed in the Program Offices is the AAU.34 After the 35 Supra at 70, (The Secretary of Homeland creation of the Department of Homeland Secu- Security delegated to the USCIS the authority to rity, the AAU was given the jurisdiction to hear exercise appellate jurisdiction over the matters deappeals relating to immigration benefits based scribed 8 C.F.R. § 103.1(f)(3)(E)(iii), where it lists 30 USCIS Organizational Chart (Accessible at www.uscis.gov, “About USCIS”) 31 Family, Murky Law and the Challenges Facing Immigration Removal and Benefits Adjudication, at Supra, at 66. (2011).

32 Supra.

33 Supra.

34 Family, at Supra, & USCIS Organizational Chart, at Supra.

over forty different matters subject to the AAU).

36 Supra at 71.

37 Supra.

38 Supra at 71-73.

39 Becker, American Bar Association in Volume 52 N. 1. Supra.

40 See Demore v. Kim, at 526.

41 Family, Murky Law and the Challenges Facing Immigration Removal and Benefits Adjudication at 66. Supra. (2011).

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Amending a Broken System: The Negative Effects of the US’ Current Immigration Policies by the Office of the General Counsel stipulated that “capital” was to be defined under 8 USC § 204.6(e) to mean “indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness.”42 Moreover, the creation of the Regional Center Pilot Program has only added to the USCIS’s reliance on internal memorandums. This is illustrated in a revised Memorandum issued in 2013, where the USCIS changed course by requiring that an immigrant investor’s promissory note only be considered “capital” if the note is specifically identified as secured by assets the petitioner owns.43 Unlike in previous years, the USCIS will now only accept promissory notes if the assets promised as collateral are solely in the petitioner’s name and equal to the necessary “cash value.” The memorandum failed to further define “capital at risk.” Instead, it simply restated the governing 8 USC § 204.6(e) that the petitioner must invest or be actively in the process of investing the required capital amount and demonstrate by accompanied evidence that those funds are at risk for the purpose of generating a return on the capital placed at risk.

44 This presents an issue to petitioners because it depends on each individual immigration officer in each individual Service Center to define whether the petitioner’s funds are at risk. Although the governing statute permits non-cash instruments such as secure promissory notes to extend to the definition of “capital,” the USCIS understood this to mean that the petitioner relying on a promissory note must show that it has a cash value equivalent to the initial investment.

45

42 43 44 45

USCIS Policy Memorandum at 7, (1997).

USCIS Policy Memorandum at 3, (2013).

Supra at 5.

Supra at 7-8.

Additionally, any modifications of the governing statutes’ interpretations made by these Individual Policy Memorandums are applied to pending cases in which petitioners have already received conditional residency statuses.

For instance, the 1997 Memorandum altered the USCIS procedures in reviewing the investment plans that were pending and/or were already approved by its officers. As such, the USCIS asserted that, “the Service [is not] estopped or otherwise precluded from terminating the status of a conditional resident alien who has invested in plans like those under review based on past approval of petitions, policy statements, or informal statements by Service officials … Under the Administrative Procedure Act and relevant case law, the Service is not bound by its initial grant of a petition when terminating conditional residence status based on a visa petition that was granted in error or based on the fact that the alien is subject to termination under section 216A of the Act.”46 46 Supra at 2-5.

The USCIS Policy Memorandum of 1997 states that, “Investment plans that involve guaranteed interest payments, buy and sell options at a fixed price other than fair market value, and other debt features [do not] comport with the statutory and regulatory requirements … Investment plans that allow an alien to earn a fixed return on his investment at the same time that he or she continues to make installment payments on a promissory note [do not] comport with statutory and regulatory requirements. These plans effectively permit the alien to reinvest his or her return on the initial cash contribution in the new commercial enterprise. Therefore the alien is not infusing new capital into the enterprise or the U.S. economy in the statutorily required amount. The Service request that the Department of State cease

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Amending a Broken System: The Negative Effects of the US’ Current Immigration Policies We can comprehend the issues these memorandums present in relation to the governing federal statutes and investors’ petitions.

By requiring retroactive application of the new definition of “capital” and “investment plans,” the 1997 Memorandum created a situation in which petitioners holding conditional permanent residency cards were left without any recourse in the event that their statuses became revoked.

This is illustrated in In re Izummi, where the investor provided an initial capital investment of $500,000 in the form of a promissory note to American Export Partners, LLC (AELP) in which $30,000 would be used for the expenses of the entity.47 Although the USCIS initially approved the investment plan stipulating that investors could rely upon promissory notes for their initial required capital and issued conditional permanent residencies to ninety-five alien investors under this plan, Izummi’s petition was revoked because it dId not meet the requirements established by the 1997 Memorandum.

48 The Associate Commissioner for Examinations affirmed the USCIS’ denial and held that the petitioner dId not meet the requirement of improving regional productivity established by 8 USC § 204.6(m)(3)(i), which governs regional centers.49 Moreover, the Associate Commissioner issuing visas and return petitions for revocation based on investment plans involving these terms …

The Service [is not] estopped or otherwise precluded from denying or revoking petitions filed by aliens investing in the plans like those under review based on past approval of petitions, earlier policy statements, or informal statements by Service officials …

Under the Administrative Procedure Act and relevant cases, the Service is not bound by its pervious decisions in adjudicating visa petitions.”

47 See Interim Decision, Associate Commission No. 3360, (1998).

48 See In re Izumni, Interim Decision, Associate Commission No. 3360, (1998).

49 See In re Izummi, Id.

held that the petitioner dId not meet the requirements of the EB-5 Visa statute 8 USC §204.6(j) (2) as it related to placing the initial capital in its entirety and placing the capital at risk.50 In reviewing the presented evidence, the Associate Commissioner asserted that the capital provided to AELP was used to purchase four loans in the amount of $1.361 million with funds from ninety-five investors, all of whom received their lawful immigration statuses through the EB-5 Visa.51 The Associate Commissioner noted that this amount totaled approximately $14,327 per investor.52 Consequently, the petitioner dId not meet the required initial capital amount under the EB-5 Visa although the USCIS had previously granted lawful statuses to the ninety-five alien investors under the same investor plan.

The Associate Commissioner also reviewed the capital investment structure between the petitioner and AELP, where it was agreed that the petitioner was to make an investment of $500,000 in the form of a promissory note.53 This note provided for an initial investment of $120,000 to be placed in an escrow account, where it would be released to AELP once the petitioner’s immigration visa was approved.54 Additionally, the note required five annual payments of $18,000 and a final balloon payment of $290,000.55 Further review of the agreement between AELP and the investor revealed that the petitioner agreed to immediately release $30,000 from the $120,000 placed in escrow as a refundable advance for initial expenses for AELP.56 The Service held that, according to § 204.6(j)(2), the $30,000 contribution was not a type of profit-generating activity and, thus, no more than $470,000 of the promised $500,000 investment could be considered “invested” by 50 51 52 53 54 55 56

Id. Id at 173.

Id. Id at 177.

Id. Id. Id at 177-178.

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Amending a Broken System: The Negative Effects of the US’ Current Immigration Policies the petitioner.57 The Associate Commissioner upheld the Service’s decision and stated that “the Service is not prohibiting the payment of Partnership expenses; rather the Service is finding that if AELP wishes to have the limited partners pay these expenses, [they] must be paId in addition to the $500,000.”58 The Associate Commissioner also held that annual returns that are guaranteed do not meet the requirements for the EB-5 Visa because the business entity receives no new funds from the immigrant investor, especially in the presence of a promissory note agreement.59 However, the petitioner argued that an internal Service memorandum issued on 20 October 1997 allowed for guaranteed interest payments to be made to the immigrant investor in some cases.60 In response, the Commissioner stated that the recent memorandum issued after the petitioner’s initial application superseded the previous USCIS’ 1997 Memorandum.61 Therefore, the Commissioner’s ruling in In re Izummi affirmed the USCIS’ right to disregard previous appellate rulings related to the same legal issues and to retroactively apply the EB-5 Visa’s modifications in requirement definitions without any repercussions to its agency and with all of the negative implications to the investors.

Consequently, Congress must provide concrete statutory guidance by asserting that the Department of Justice through the USCIS must alter its format of creating Operation Instructions and Individual Policy Memorandums as it relates to interpreting the EB-5 Visa governing statutes. Under the APA, the Supreme Court must intervene in the USCIS’ current legal structure and assert that a disregard for previous appellate opinions as it relates to the same legal issue by the Administrative Appeals 57 58 59 60 61

Id at 178 Id at 179 Id at 181-182 Id at 182 Id.

Office creates arbitrary decisions, amounts to an abuse of discretion, and establishes decisions not in accordance with law.62 In order to create an immigration system that operates under legal uniformity, the USCIS’ interpretations and appellate decisions of the governing statutes must apply to all USCIS Service Centers. It may be argued that the current structure extends to all centers. However, as highlighted in In re Izummi, each Service Center in a specific state has the authority to re-interpret the interpretations set out by the USCIS’ Individual Policy Memorandums and disregard previous opinions set by the AAU. In order to eliminate any retroactive applications of policies and contradictory decisions by the AAU as seen in In re Izummi, the Department of Justice must dictate the final interpretations to be followed by all USCIS Service Centers and enforce appellate decisions rendered by the AAU or the BIA.63

The Inconsistent Application of Immigration Statutes and the Lack of Uniformity in the Federal Courts The Associate Commissioner’s assertion in In re Izummi that the AAU’s opinion based on another Immigration Service Center has no binding effect on other Service Centers, such as the Texas Service Center that reviewed the petitioner’s EB-5 Visa Petition, creates legal conflict between various USCIS’ offices within the United States. This lack of uniformity in the application of immigration statutes has stretched to the federal courts and, thus, has created distinct interpretations of federal statutes without regard for legal uniformity. Moreover, petitioners seeking review based on the APA are rarely capable of meeting the necessary burden of proof in order for the courts to overturn an agency’s decision. As the federal statutes lack any specific definitions relating to EB-5 Visas, courts are placed in the difficult position of de62 5 USC §706 63 See Interim Decision, Associate Commission No. 3360, (1998).

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Amending a Broken System: The Negative Effects of the US’ Current Immigration Policies termining which actions by the USCIS resulted in a legal wrong. This becomes prejudicial to the petitioner seeking review because the courts typically enter their judgment using only the Operation Instructions and Individual Policy Memorandums drafted by the same immigration adjudicators that are employed by the defendant in the petitioner’s suit.64 Because this provides federal judges with biased evidence and a very narrow interpretation of the immigration laws under scrutiny, these judges must rely on their own personal views in order to balance the lack of legal precedent. Consequently, this has led to the absence of legal uniformity among federal courts as to when and how a petitioner has been wronged by an USCIS agency.

More specifically, the results are contradictory opinions by the federal courts as it relates to the permissibility of the USCIS’ retroactive applications of new policy definitions.

This is illustrated in the conflict between the judgment entered in Carlsson v United States Citizenship & Immigration Services and the judgment entered in Arnott v United States Citizenship & Immigration Services.65,66 In Carlsson, the United States District Court for the Central District of California denied the plaintiff’s Motion for Declaratory and Injunctive Relief as it related to the USCIS’ retroactive application of immigration policy. In this instance, the USCIS granted approval of a regional center operated by American Life Development Company, LLC. (ALDC) for certain areas in Riverside County.67 On 12 October 2010, USCIS approved an amended designation for ALDC, which expanded the number of target “industries” and expanded its geographic scope.68 On 7 January 2011, 14575 Innovation Drive Limit64 Family, Murky Law and the Challenges Facing Immigration Removal and Benefits Adjudication, at Supra, at 66. (2011).

65 See CV. 12-7893-CAS (2012).

66 See 290 F.R.D. 579 (2012).

67 Id. 68 Id.

ed Partnership (Innovation LP) was established

by ALDC for the purpose of obtaining $500,000 from twenty-four investors, but was only able to secure investments from twenty-three individuals, all of whom were the plaintiffs in this litigation.69 Before plaintiffs’ petitions were denied or revoked, Innovation LP had spent over $7 million in purchasing a parcel of real property.

In late 2011, USCIS approved eight of the I-526 petitions at issue in this action.70 Thereafter, a number of the plaintiffs were planning to pursue or were already pursuing the second stage of the visa process through the I-485 application for adjustment of status to a conditional permanent residency card. The plaintiffs had already obtained temporary work authorization pursuant to their pending I-485 applications.71 In April 2012, however, USCIS issued notices of intent to revoke (NOIR) the approved I-526 petitions and requests for evidence (RFE) related to the petitions for which a decision was pending.72 The USCIS determined that: (1) there was insufficient evidence that the EB-5 investor capital had been placed at risk; (2) the petitioner’s comprehensive business plan failed to provide sufficient detail to support a finding that the job-creation requirements would be met; and (3) the market analysis submitted by the petitioners was not a “reasonable methodology” for estimating job creation.73 Therefore, USCIS concluded there was “good and sufficient 69 Id. 70 Id. 71 Id. 72 Id. 73 Id at 10, (Pursuant to 8 USC §204.6(j)(4) (iii) and §204.6(m)(7), Reasonable Methodology is vague and only stipulates that the petitioner demonstrate that “the investment will create jobs indirectly through revenues generated from […] the new commercial enterprise.” However, the USCIS expressly reserves the right to terminate the approval of regional centers that “no longer serve the […] purpose of promoting economic growth”).

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Amending a Broken System: The Negative Effects of the US’ Current Immigration Policies cause”” for the issuing the NOIRs and RFEs.74

In order to establish retroactive application, the Court used the five factor test set by MontgomPlaintiffs challenged the NOIRs and ery Ward v. FTC Standard, 691 F.2d 1322, 1333 RFEs because the underlying methodology of (9th Cir. 1982): the market analysis used by the regional center “Among the considerations to estimate the likelihood of creating sufficient that enter into a resolution of jobs had already been approved by the USCIS 75 the problem are (1) whether the on numerous occasions. The approvals departicular case is one of first imrived from the initial, approved investment plan. pression, (2) whether the new Therefore, plaintiffs sought declaratory and inrule represents an abrupt deparjunctive relief against the USCIS based on: (1) ture from well established pracretroactive application of Immigration Policy, tice or merely attempts to fill a more specifically, the review of the methodvoId in an unsettled area of law, ology used to determine if the venture would (3) the extent to which the parmeet the job-creating prerequisite; (2) arbitrary ty against whom the new rule action by the USCIS that is in violation of the is applied relied on the former APA; (3) excessive usage of authority under the rule, (4) the degree of the burden APA; (4) denial of plaintiffs’ rights to due prowhich a retroactive order imposcess under the Fifth Amendment.76 es on a party, and (5) the statutoHowever, the Court denied the plaintiffs’ ry interest in applying a new rule motion based on the findings that the plaintiffs despite the reliance of a party on (1) dId not make strong showing that they were the old standard.”79 likely to succeed on the merits; (2) only faced Consequently, the Court found that possible irreparable harm in the absence of injunctive relief because no deportation proceed- the USCIS dId not apply new standards when ings were pending against any of the plaintiffs; re-evaluating plaintiffs’ petitions because the (3) the balance of equities tipped in favor of the USCIS relied upon the same standards of evaldefendant; and (4) the absence of injunctive re- uation during the review of plaintiffs’ business lief was favorable to the public’s interest because plan. Instead, because the modifications made Congress has given a “mandate” to the USCIS by Innovation LP to ensure that the job-creation in order to ensure that immigrant investors are requirements were met allowed the USCIS to in compliance with the statutory requirements review the venture as a revised project, the established under immigration laws.77 Court held that the USCIS was not reviewing prior determinations and instead was evaluating In first reviewing if plaintiffs were like- a new venture.80 ly to succeed on merits, the Court reviewed the allegations of (1) retroactive application of ImThe Court asserted that the decision as migration Policy; (2) arbitrary action by the US- a whole was likely not to be arbitrary or capriCIS in violation of the APA; and (3) excessive cious and stated that: use of authority under the APA in conjunction.78 “In particular, based on a close 74 Id at 10-11. analysis of the submitted busi75 Id at 11. ness plan and plaintiffs’ pro76 77 78

Id at 1.

Id. Id.

79 80

Id at 15.

Id at 15-17.

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Amending a Broken System: The Negative Effects of the US’ Current Immigration Policies posed changes to that plan, USCIS determined that the revised plan could not qualify as a “comprehensive” business plan under 8 C.F.R. § 204.6(j) (4)(i)(B). The Court is not in a position to second-guess what otherwise appears to be an application of the agency’s regulations and substantial expertise in determining that plaintiffs failed to carry their burden of demonstrating that they qualify for participation in the EB-5 program.”81

Central District of California, Southern Division granted plaintiffs’ motion for class certification based on the alleged USCIS’ retroactive application of immigration policy. Nonetheless, the Court altered the proposed definition for the class certification as follows: “[a]ll conditional residents … who obtained their status by investing under the employment based fifth-preference category [and] … received USCIS approval of an I-526 plan that specifically disclosed that loans could be made to multiple job-creating entities, and who have had or will have their I-829 petitions denied … solely because of Defendants’ policy [change stating] that if an investor materially changed his or her investment after the approval of an I-526 petition, [they] must file another I-526 petition and begin the process again.”83

Finally, the Court reviewed plaintiffs’ allegations that their due process rights were violated. Because the USCIS submitted evidence that it used the same evaluation and evidence standards when reviewing the revised business venture, the Court found that plaintiffs’ due process rights under the Fifth Amendment were not violated.82 Nonetheless, provided that the plaintiffs retained unlawful statuses within the United States after the USCIS issued its NOIRs due to its revision of the previously approved investment plan, the inaccuracy of the Court’s ruling is obvious. The plaintiffs suffered irreparable harm from their modification of immigration statuses; the plaintiffs’ due process rights were violated since the issuance of its NOIRs directly derived from the USCIS’ revision of the investment plan that its officers had previously approved; and, more importantly, the USCIS’ actions were retroactively applied because its officers utilized no new information submitted by the regional center in its issuance of its NOIRs.

In this instance, the plaintiffs submitted I-526 petitions for conditional approvals of their business plans and sought conditional permanent residency cards based on these plans, which the USCIS granted.84 Once the plaintiffs failed to create the necessary required jobs outlined by the requirements of EB-5 Visas and outlined within the approved investment plan, the plaintiffs shifted their investments to other job-creating businesses as contemplated within their initially approved business plan. The USCIS denied (or indicated that they would deny) these petitions based on the modification of the business venture.85

Consequently, the plaintiffs located a In Arnott, this argument was affirmed number of immigrant investors in the same powhen the United States District Court for the 81 82

Id at 21.

Id at 25.

83 84 85

See 290 F.R.D. 579 at 589.

Id. Id.

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Amending a Broken System: The Negative Effects of the US’ Current Immigration Policies sition and filed a motion seeking class certification based on the allegation that the USCIS retroactively applied the policy that disallowed “material changes” in investment strategies, which led to the recent or imminent denial of plaintiffs’ petitions.86 The Court held that the plaintiffs had sufficiently met their requirements because the plaintiffs: (1) identified 110 members with the potential of adding future members; (2) attacked a specific policy and only sought to decide the permissibility of retroactive policy application for investors who already were granted their I-526 petitions; and (3) proved that their claim was typical of the entire proposed class.87 Furthermore, the plaintiffs properly argued that “a denial of Class Certification could lead to inconsistent adjudications on the same issue with respect to different class members, and subsequent incompatible standards for defendants moving forward.”88 Consequently, the Court held that plaintiffs met the necessary requirement of proving that “separate actions would create incompatible standards of conduct for the defendant or prejudice individual class members not parties to the action.”89 Because plaintiffs only sought to attack a specific policy permitting the retroactive application of disallowing “material changes” to business ventures related to EB-5 Visas, the Court dId not accept the defendant’s argument that the “wide factual variation that exists between the different EB-5 investment projects and business plans of each proposed class member defeats commonality.”90 The Court also dId not accept defendant’s evidence that “EB-5 investment projects are ‘unique,’ business plans are ‘vastly dissimilar,’ and countrywide investment plans are too numerous to count” as sufficient to defeat the plaintiffs’ argument that their 86 87 88 89 90

Id at 583.

Id at 583, 585-587.

Id at 588.

Id at 583, 588-589.

Id at 586.

claim was typical of the entire class.91 When confronted with the same question as to whether a USCIS agency has retroactively applied immigration policies, the Courts entered contradicting judgments. Although the Arnott Court altered the class certification, it dId correctly recognize the violations presented to the petitioners when the USCIS retroactively applies its immigration policies.92 By contrast, the Carlsson Court asserted that the USCIS’ retroactive actions were merely the application of the “agency’s regulations.”93 This inconsistency between the two Courts on the same issue of the USCIS’ authority to retroactively apply immigration policies creates an unstable immigration program.

The large latitudes provided to the USCIS agency officers and the contradicting rulings provided by the federal courts cannot provide security to any foreign investor. By merely relying on the ambiguous and unpredictable applications of the USCIS’ “regulations,” the Carlsson Court has affirmed the ex post facto conduct of Service Centers within its jurisdiction.94 Meanwhile, by asserting that there is no distinction between the application of immigration policies and the federal statutes governing EB-5 Visa Petitions because EB-5 investments projects are “unique,” the Arnott Court has created safeguards against the retroactive application of immigration policies by Service Centers within its jurisdiction.95 The Supreme Court should weigh in on the current practices of the USCIS. Invoking its jurisdiction under the APA, the Court should prohibit the USCIS’ retroactive application of statutory interpretations in relation to pending cases. As such, any modifications of “capital” 91 92 93 94 95

Id. See 290 F.R.D. 579 (2012).

See CV. 12-7893-CAS (2012).

Id. See 290 F.R.D. 579 (2012).

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Amending a Broken System: The Negative Effects of the US’ Current Immigration Policies or “reasonable methodologies” must only apply to new EB-5 Visa applications. This would eliminate the contradictory opinions by the federal courts because all petitioners that have been granted conditional permanent statuses would be reviewed under the same standards for permanent residency statuses. Moreover, if the USCIS has approved a regional center based on a proposed business plan that includes a secondary plan for job creation, immigration adjudicators must honor such approval in the event that the regional center actually implements its secondary plans regardless of new policy interpretations. This will eliminate contradictions seen in Carlsson and Arnott.96

Nevertheless, the vagueness of the federal statute governing regional centers again grants immigration adjudicators large latitudes.

This is particularly evident in USCIS’ broad discretion when using “reasonable methodologies” to determine if a regional center has met its necessary “job creation” goal. More specifically, the governing federal statute only stipulates that the “Secretary of State, together with the Secretary of Homeland Security, shall set aside visas for a program to implement the provisions of such section.”101 However, it fails to dedicate the criteria to be used by immigration officers when determining whether a particular project promotes economic growth. This has led the USCIS to assert that regional centers may The Negative Consequences of Unreg- amend previously approved designations withulated Regional Centers out notifying the USCIS when it changes its Since the establishment of the Region- industries of focus, its geographic boundaries, al Center Pilot Program, the United States has its business plans, or its economic methodoloseen an increase from seventy-four centers in 2009 to over four hundred centers by the end of 101 8 USC §1153, Immigration Program 2013.97 Meanwhile, there has been a decrease §1325, stating in part that: (a) A regional center in EB-5 Visas granted to Original Investors as shall have jurisdiction over a limited geographopposed to Regional Investors.98 The increase ic area, which shall be described in the proposal of regional centers and Regional Investors stem and consistent with the purpose of concentrating from the fact that regional centers typically ap- pooled investment in defined economic zones. The ply for approval in geographic areas labeled as establishment of a regional center may be based on general predictions, contained in the proposal, targeted employment zones or underdeveloped concerning the kinds of commercial enterprises that areas.99 This provides Regional Investors with will receive capital from aliens, the jobs that will a lowered investment threshold of $500,000 as be created directly or indirectly as a result of such opposed to the necessary $1 million for Origi- capital investments, and the other positive economnal Investors.100 ic effects such capital investments will have[…]

96 See CV. 12-7893-CAS (2012) & See 290 F.R.D. 579 (2012).

97 Singer & Gaides, Improving the EB-5 Investor Visa Program: International Financing for U.S. Regional Economic Development, at Project on State and Metropolitan Innovation at 7. Supra.

98 Original Investors are defined as foreign investors who invest in their own ventures and Regional Investors are defined as those who invest into a Regional Center in Singer & Gaides, Project on State and Metropolitan Innovation.

99 Supra at 3.

100 Supra.

(c) In determining compliance with section 203(b) (5)(A)(iii)[(ii)] of the Immigration and Nationality Act [8 U.S.C. 1153(b)(5)(A)(iii)[(ii)]], and notwithstanding the requirements of 8 CFR 204.6, the Secretary of Homeland Security shall permit aliens admitted under the program described in this section to establish reasonable methodologies for determining the number of jobs created by the program, including such jobs which are estimated to have been created indirectly through revenues generated from increased exports, improved regional productivity, job creation, or increased domestic capital investment resulting from the program.

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Amending a Broken System: The Negative Effects of the US’ Current Immigration Policies gies.102

foreign investors.108 In 2013, the SEC charged the couple with fraudulently raising at least $5,000,000 from investors in Egypt and Nigeria that were seeking permanent residency status in the United States through EB-5 Visa petitions. After registering USA Now as a regional center with the USCIS in 2010, the Ramirezes collected funds from these immigrant investors by stating that the invested funds would be held in escrow until the USCIS approved the conditional permanent residency statuses.109 The funds, nonetheless, were never held in escrow and used for unidentified businesses. If statutes were enacted to require that the USCIS continued its monitoring of regional centers, it would decrease the possibility of theft or fraud by dubious regional centers. However, because the federal statutes fail to specify that the USCIS must regulate regional centers after the initial registrations, immigrant investors face the high risk of being defrauded by entities similar to USA Now.110 It is unlikely that this was what the USCIS’ revised 2013 Memorandum meant when it stated that an investor’s capital must be at risk under § 204.6(e).

Consequently, the USCIS has enacted a legal policy that shields regional centers from legal ramifications while directly placing noncitizens’ residency statuses and monetary expenditures at high risk. Because the USCIS is solely reviewing the progress of the regional center for the purpose of approving the investor’s EB-5 Visa petition, there is no penalty to the regional center if it fails to demonstrate that the required jobs were created during the twoyear probationary period.103 Until the USCIS approves the investor’s conditional permanent residency status, an investor’s capital may be held in the regional center’s escrow account.

104 However, before filing the necessary form for the purposes of obtaining permanent residency status without conditions, all escrowed funds must be released to the regional center.105 This presents uncertainty to the immigrant investor because the only determining factor reviewed by the USCIS is whether the regional center has achieved what it proposed in its initially submitted business plan during the two-year probationary period.106 If the regional center’s To decrease fraudulent practices by progress does not match its initial business plan, the immigrant investor may be deported and the regional centers, Congress should amend the regional center has no obligation to return the governing statutes. The lack of oversight by the USCIS as it relates to regional centers’ practices capital invested.107 only serves to decrease the number of wealthy Another issue deriving from the lack foreign investors seeking to obtain permanent of regulation of regional centers by the USCIS residency in the United States. This is mainly is the possibility of theft and fraud. This is il- due to the lack of transparency and accountabillustrated in an action brought by the Securities ity by the regional centers. A way to insure that and Exchange Commission (SEC) against Mar- regional centers share the risks affiliated with co and Bebe Ramirez for stealing funds from the failure of their business plans is by having Congress pass legislation requiring that region102 USCIS Policy Memorandum at 23-24, al centers renew their statuses with the USCIS (2013). Supra.

103 Supra at 10.

104 Barry, EB-5 as an Instrument of Sustainable Capitalism at 82. Supra.

105 Supra.

106 Singer & Gaides, Project on State and Metropolitan Innovation at 10. Supra.

107 Supra.

108 Barry, EB-5 as an Instrument of Sustainable Capitalism at 85. Supra.

109 Supra at 85-86.

110 8 USC §1153, §1325, §1154 (These statutes govern the Allocation of Immigrant Visas, the Procedure for granting Immigrant Status, and Immigration Programs).

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Amending a Broken System: The Negative Effects of the US’ Current Immigration Policies in conjunction with immigrant investors’ petitions for conditional and permanent residencies.

This would allow the USCIS to revoke the regional centers’ statuses if the businesses fail to meet the proposed requirements and thus shifts some of the negative burdens from noncitizen petitioners onto the regional centers.

Provided that an investor’s capital may be held in the regional center’s escrow account until the USCIS approves the investor’s conditional permanent residency status but must be released before filing the necessary form to obtain permanent residency status without conditions, the amended federal statutes should require 50 percent of a petitioner’s capital to be released from a regional center’s escrow account when he or she applies for permanent residency status.111 The remaining funds should be released when the USCIS approves the status modification. By requiring that the USCIS regulate regional centers and allowing the invested capital to be released incrementally, Congress will implement an immigration system where immigrant investors share the risks of the business endeavors with regional centers.

regional centers cannot be a lack of authority

by USCIS’ immigration officers because these same officers have the power to determine that regional centers are exempt from regulation.

This becomes a decision by the USCIS without any negative outcome to regional centers or immigration Service Centers, as all the risks are placed onto noncitizens.

Additionally, the Supreme Court has continued to authorize the retroactive application and contradictory interpretations of immigration statutes by various immigration Service Centers and federal courts. By attempting to balance the plenary powers of Congress to dictate which individuals are authorized to enter into the United States with legal protections for noncitizens, the Court has created a system where an immigrant’s rights are significantly diminished. The USCIS has interpreted the Court’s assertion that “the Due Process Clause [in the Fifth Amendment] does not require [the government] to employ the least burdensome means to accomplish its goal” to mean that the USCIS has carte blanche to implement immigration policies without reproach.113 This notion becomes validated when federal courts state Conclusion that they are “not in a position to second-guess By failing to regulate regional centers what otherwise appears to be an application of adequately, immigration adjudicators have out the agency’s regulations and substantial experin place a predatory system in which nonciti- tise in determining that plaintiffs failed to carry zens may have their monetary properties re- their burden of demonstrating that they114qualify moved by dubious and illegitimate regional for participation in the EB-5 program.” centers. This disregards legal transparencies The concept that the USCIS is beyond as the USCIS issued their 2013 Memorandum “second-guessing” from the courts derives dispecifically stating that a “regional center may rectly from the Supreme Court’s assertion that elect to pursue an amendment if it seeks cer- “reasonable presumptions and generic rules, tainty in advance that such changes will be per- even when made by the INS rather than Conmissible to USCIS before they are adjudicated gress, are not necessarily impermissible exerat the I-526 stage, but the regional center is not cises of Congress’ traditional power to legislate required to do so.”112 The lack of regulation of with respect to aliens.”115 Accordingly, the US111 Barry, EB-5 as an Instrument of Sustainable Capitalism at 82. Supra.

112 USCIS Policy Memorandum at 23-24, (2013). Supra.

113 See Demore v. Kim, at 528.

114 See Carlsson v. United States Citizenship & Immigration Services, at 21.

115 See Demore v. Kim, at 526.

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Amending a Broken System: The Negative Effects of the US’ Current Immigration Policies CIS may interpret, amend, and alter immigration statutes through its Operation Instructions and Individual Policy Memorandums.116 The issue that arises from this unregulated power is that immigration adjudicators in each Service Center has the power to implement what they have interpreted as the accurate meaning of immigration laws. Noncitizens are inevitably confronted with the fact that an authorized business practice by one Service Center will have no binding effect and may be completely disregarded by another Service Center because there are no binding practices and interpretations.117 The lack of clear and concise criteria for immigration petitions deprives noncitizens of uniformity and stability under the law because it creates a system where the true intent of the law is constantly changing without fair notice to the petitioners.

116 Family, Murky Law and the Challenges Facing Immigration Removal and Benefits Adjudication at 66, (2011). Supra.

117 See In re Izummi, Interim Decision, Associate Commission No. 3360, at 180.

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Wrongful Conviction and the United States Prosecutor Blake Atherton Georgetown University Abstract How do innocent people end up in jail? In the United States, where over 2 million people sit behind bars, scholars estimate that more than 50,000 are innocent. Erroneous eyewitness, forensic, and informant testimony, along with false confessions, are the leading causes of wrongful conviction. And yet, many of these causes stem from a lack of oversight of the U.S. prosecutor, who is incentivized to exploit his autonomy to win convictions and maximize the length of sentences. Therefore, it is essential to regulate prosecutorial methods of interrogation, to diminish the role of the prosecutor in plea-bargaining, to reform hiring and promotion practices in prosecutorial offices, and to set standards for gauging the validity of forensic testimony.

In this piece, I will discuss the chief causes of wrongful conviction and outline new safeguards and incentives for the U.S. prosecutor by which these miscarriages of justice can be reduced.

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Wrongful Conviction and the United States Prosecutor

Introduction Scholars and policymakers in criminal justice often refer to “the Dark Figure of Crime” or the volume of criminal activity that goes undetected. In recent years, thanks to the proliferation of cutting-edge DNA-testing technologies, this discussion has shifted to “the Dark Figure of Innocence,” or the number of wrongful conviction cases that remain undetected. In United States history, 337 Americans have been exonerated through DNA testing.1 And yet, this figure captures only a small portion of all wrongful convictions in the United States. According to the Innocence Project, a non-profit dedicated to DNA exoneration and legal advocacy for the wrongfully convicted, between 2.3% and 5% of all prisoners in the U.S. are innocent. This means that, of the 2.2 million Americans behind bars, somewhere between 50,000 and 110,000 were unjustly convicted.

Leading scholars identify four main causes for wrongful conviction: eyewitness error, deficient or misused forensic evidence, Invalid informant testimony, and false confessions.2 Simple policy changes aimed to reduce the unfettered autonomy of the U.S. prosecutor would mitigate such abuses. For example, suggestive, coercive, and unregulated interrogation techniques, as well as rampant misuse of forensic testimony, can be greatly diminished through the creation of basic oversight mechanisms. In this piece, I will address these four main causes for wrongful conviction and the specific ways in which prosecutorial checks and balances can 1 The Innocence Project, The Cases: DNA Exoneree Profiles, INNOCENCE PROJECT, http://www.innocenceproject.org/cases-false-imprisonment/front-page#c10=published&b_ start=0&c4=Exonerated+by+DNA 2 University of Michigan Law School, Causes of Wrongful Convictions, UNIVERSITY OF MICHIGAN LAW, https://www.law.umich.edu/ clinical/innocenceclinic/Pages/wrongfulconvictions.aspx

restore justice and keep innocent civilians out of jail.

Why does Wrongful Conviction Happen?

Eyewitness Identification One of the key deficiencies in the U.S. justice system that leads to wrongful conviction is flawed eyewitness testimony. In a study conducted by Brandon Garrett of the University of Virginia School of Law, a leading scholar on the issue, flawed eyewitness testimony accounted for almost 80 percent of wrongful convictions observed.3 Modern research in psychology reveals that eyewitness testimony is much less reliable than conventional wisdom suggests.

For example, factors such as the lighting at the scene of the crime, the distance from the perpetrator, and the duration of observation decrease the accuracy of human recollection.4 Moreover, correctly identifying suspects across race—as is often the case—can be exceptionally difficult for eyewitnesses.5 Furthermore, witnesses are often subject to suggestive interrogation methods from police, a practice that proves problematic for extracting reliable testimony. Julia Shaw of the University of Bedfordshire attests that witnesses are highly vulnerable to suggestion and are able to construct rich, false memories with great levels of conviction.6 In fact, Shaw’s 3 Brandon L. Garrett, Judging Innocence, COLUM. L. REV. VOL 100, ISSUE 2. 101, 190 (2007) 4 The Law and Science of Eyewitness Memory, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, https://www.youtube.com/channel/UCMWg8e_4hC6p5abek1VGuMw 5 Gary L. Wells and Elizabeth A. Olson, The Other Race Effect in Eyewitness Identification: What Do We Do About It? Vol. &, No. 1, PSYCHOLOGY, PUBLIC POLICY, AND LAW 230, 246 (2001) 6 Julia Shaw, and Steven Porter, Constructing Rich False Memories of Committing Crime, PSYCHOLOGICAL SCIENCE 1, 11 (2015)

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Wrongful Conviction and the United States Prosecutor study finds that “full episodic false memories of committing a crime can be generated in a controlled experimental setting” and that “criminal and noncriminal emotional false memories” can be easily incited through suggestive interrogation methods.7 In Shaw’s illuminating study, it took only three interviews for 70 percent of participants to produce false memories of committing a crime, including theft and assault.8 Although eyewitness testimony is vulnerable to grave psychological error, judges and juries often ascribe significant weight to this form of evidence, since it is seen as an accurate, firsthand account of the crime. To mitigate the damage of false testimony from eyewitnesses, the criminal justice system might seek to regulate suggestive interrogation practices by police and prosecutors and to educate civilians, judges, and juries about the fundamental limitations of eyewitness evidence.

Forensic Evidence The misuse of forensic evidence is another leading cause of wrongful convictions in the United States. In trial, DNA evidence can be “both powerful and quite misleading because of the difficulty in evaluating it.”9 Forensic evidence is often inconclusive, but can easily be manipulated to reflect the desired outcome of the prosecutor. One study of wrongful conviction outcomes, conducted by Brandon Garrett, analyzed seventy-two forensic analysts, fifty-two different labs, and twenty-five different states and found that about 60 percent of cases involved the prosecution’s forensic analysts providing Invalid testimony.10 Furthermore, there are currently no uniform rules or third-party arbiters to verify conclusions drawn from fo7 Id. 8 Supra note 9.

9 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. at 595 (1993) 10 Brandon L. Garrett and Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 VA. L. REV. 1. 1, 97(2009)

rensic evidence. Thus, the prosecution can, and often does, misuse sample data and/or draw unfounded conclusions about the significance of the forensics. When considering the importance of forensic evidence in trial outcomes – particularly in capital offense cases, where the stakes are highest – it is clear that a qualified third-party is needed to corroborate or dismiss forensic testimony.

Informant Testimony Wrongful capital convictions can also be traced to false testimony by informants.

11 Known as “snitches,” they come in many forms. Often they are inmates, but just as often they are what are known as “unindicted co-conspirators”—witnesses labeled by the prosecution as convictable accomplices, should they refuse to cooperate.12 In other words, the prosecutor has the ability to hold the threat of indictment over the informant’s head until the informant testifies against the defendant. Informant testimony is a particularly disquieting cause of wrongful conviction in the United States inasmuch as prosecutors are able to create perverse incentives for informants to testify against the defendant, commonly offering impunity for unindicted co-conspirators or a reduced sentence for inmates. Not surprisingly, in federal cases, an estimated 25-30 percent of defendants cooperate with the prosecution to convict another subject, and in about half of these cases the informant is rewarded for his or her testimony.13 In other words, the very unlawful exchange of false testimony for perks, such as reduced sentences or legal impunity, is commonplace in the U.S. courtroom and a leading cause of wrongful 11 The Kings of the Courtroom: How prosecutors came to dominate the criminal-justice system, THE ECONOMIST, October 4, 2014, http://www.economist.com/news/united-states/21621799-how-prosecutors-came-dominate-criminal-justice-system-kings-courtroom 12 Id. 13 Id.

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Wrongful Conviction and the United States Prosecutor conviction.

False Confession In many cases of informant testimony, the informant has much to gain and virtually nothing to lose by testifying against the defendant. And if informant testimony is damning, a defendant’s confession of his or her own guilt all but guarantees a conviction. That is to say, a confession nearly always closes a case when it should do little more than reduce the sentence.14 In the words of Leo and Drizin, false confessions simply “overwhelm other evidence” and “bias [the jury].”15 Saul Kassin attests that false confessions actually taint other evidence, showing in his study that multiple “evidence errors are noticeably more likely to exist in false-confession cases than in eyewitness cases.”16

haps due to the vivId retelling of the crime, are often incapable of distinguishing coerced confessions from genuine.

In light of this, it is essential to control the interaction between the prosecutor and his subjects in interrogation. U.S. criminal procedure currently “does not regulate the…interrogation process, nor do courts evaluate the reliability of confessions.”19 Richard Ofshe, a sociologist who studies false confessions, believes that such regulation is essential, suggesting that “judges should be empowered to review confessions for reliability through close scrutiny of the post-admission narrative of suspects.”20 Leo and Drizin advocate for an alternative approach, namely the mandatory electronic recording of all police interrogations in order to keep law enforcement accountable for their methods of questioning.21 Ultimately, though, scholars agree that the rate of false confessions can be tempered by augmenting oversight of prosecutorial interrogation techniques.

Why, then, would a defendant confess to a crime he or she dId not commit? Just as prosecutors are able to create incentives for third parties to testify against the defendant, they can also coerce defendants to testify against them- Prosecutorial Discretion selves with the promise of a reduced sentence.

Leo and Drizin, for example, observe an over“The prosecutor has more conwhelmingly large instance of “interrogation-introl over life, liberty and repuduced false confessions” in their analysis of 125 tation than any other person in 17 cases of DNA exoneration. In such interrogaAmerica...while the prosecutor tions, prosecutors can feed defendants richly at his best is one of the most detailed accounts of the crime that are almost beneficent forces in our society, certain to solicit a guilty verdict.18 Juries, perwhen he acts with malice or other base motives, he is one of the 14 C. Ronald Huff and Martin Killas, worst.”

WRONGFUL CONVICTION: INTERNATIONAL PERSPECTIVES ON MISCARRIAGES OF JUSTICE, Page 291 (2008) 15 Richard A. Leo and Steven A. Drizin, The Problem of False Confessions in the Post-DNA World, N.C. L. REV., VOL. 82, 891, 1007 (2004) 16 Saul M. Kassin, Daniel Bogart, and Jacqueline Kerner, Confessions That Corrupt: Evidence From the DNA Exoneration Case Files, PSYCHOLOGICAL SCIENCE 1, 5 (2011) 17 Supra note 18 18 Brandon L. Garrett, The Substance of False Confessions, STAN. L. REV. VOL. 62. ISSUE 4.

- Robert Jackson, United States Attorney General during the Roosevelt Administration22 1051, 1119 (2010) 19 Id. 20 Paul G. Cassell, The Guilty and the ‘Innocent’: An Examination of Alleged Cases of Wrongful Conviction from False Confessions, HARV. J. L. & PUB. POL’Y. VOL. 22. 526, 590 (1999) 21 Supra note 18 22 Robert H. Jackson, The Federal Prosecutor, Address Delivered at The Second Annual Confer-

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Wrongful Conviction and the United States Prosecutor “In the U.S. legal system, prosecutors may wield even more power than cops. Prosecutors decide whether to bring a case or drop charges against a defendant; charge a misdemeanor or felony; demand a prison sentence or accept probation. Most cases are resolved through plea bargains, where prosecutors, not judges, negotiate whether and for how long a defendant goes to prison. And prosecutors make these judgments almost entirely outside public scrutiny.”

- Jeffrey Toobin, The New Yorker23

Frazier v. Cupp made it legal for state officers and prosecutors to lie to suspects in pursuit of confessions.24 Because of these trends, the first step towards greater equity in the adversarial process should be legislation that would mandate the documentation and scrutiny of all interaction between law enforcement and suspects as well as prosecutors and defendants.

Next, Congress should consider limiting the prosecutor’s most powerful tool: the plea bargain. Currently, more than 96 percent of all cases in the United States end in a plea bargain.25 Federal Judge Jed Rakoff of the Southern District of New York alludes to the plea bargain not as a just outcome of a criminal trial, but as a “contract of adhesion” by which “one party can effectively force its will on the other party.”26 Rakoff advocates for diminishing the role of the prosecutor in plea-bargaining, perhaps by bringing in a magistrate judge to act as a broker. Huff and Killas corroborate this notion, suggesting that plea-bargaining be restricted to minor offenses in which the term is short and the facts obvious.27 Certainly, the criminal justice system operates more efficiently with plea bargains, but at what cost? In comparing criminal justice systems that use and do not use plea bargaining, Yehonatan Givati of Harvard Law School finds that “higher levels of crime and a greater social emphasis on ensuring that guilty individuals are punished lead to a greater use of plea bargaining, while lower levels of crime and a greater social emphasis on ensuring that innocent individuals are not punished leads to less use of plea bargaining.”28 This finding sug-

There is perhaps no mightier force responsible for wrongful convictions than the U.S. prosecutor. To be sure, prosecutorial responsibility for wrongful conviction does not imply intent. In fact, an analysis of how the innocent are convicted reveals certain systemic imbalances in the adversarial system, which allows prosecutors to strong-arm juries and judges to present guilty verdicts. Scholars of criminal justice point to this seemingly unbridled discretion of the prosecutor in interrogation and plea-bargaining practices. In view of this potentially pernicious autonomy, there is a great need for increased systemic oversight of state prosecution. First, oversight would involve closer scrutiny of all pre-trial interaction between the prosecution and the defendant. Because prosecutors are regulated neither in the quality nor the quantity of their interrogations, they have Frazier v. Cupp, 394 U.S. 731 (1969) free reign to pursue aggressive and coercive 24 25 Justin Rohrlich, Why Are There Up to strategies to invoke confessions. What’s more, 120,000 Innocent People in US Prisons? VICE the landmark Supreme Court ruling in 1969 of ence of United States Attorneys (April 1, 1940) (transcript available at the Department of Justice).

23 Jeffrey Toobin, The Milwaukee Experiment, THE NEW YORKER, May 11, 2015, http:// www.newyorker.com/magazine/2015/05/11/ the-milwaukee-experiment

NEWS, November 10, 2014, 9:25 a.m. https:// news.vice.com/article/why-are-there-up-to-120000innocent-people-in-us-prisons 26 Id. 27 Supra note 17 at 7.

28 Yehonatan Givati, The Comparative Law and Economics of Plea Bargaining, HARVARD

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Wrongful Conviction and the United States Prosecutor gests that societal attitudes about whether it is should be elected at all rather than appointed usbetter to under-convict or over-convict inform ing a system that ensures diversity. legislation that facilitates or constrains use of Equally important is the system of inthe plea bargain. centives that allows prosecutors to benefit from The aforementioned causes of wrongful convictions, whether just or unjust. Prosecutors conviction—eyewitness misidentification, de- in the U.S. State and District Attorneys’ offices ficient forensic evidence, informant testimony, face perverse incentives, striving to “win” conand false confession—can all be more effec- victions at all costs in the hopes of “using courttively mitigated through regulation of the U.S. room victories to achieve lucrative partnerships prosecutor. For example, prosecutors, much at law firms or [seats in] public office.”31 As long like witnesses, are not immune to basic psycho- as the criminal justice system rewards proseculogical biases. How prosecutors choose, pursue, tors for maximizing the number of convictions and conduct investigations is often subject to obtained and the length of sentences issued, the their own personal whims. Confirmation bias, United States will err on the side of over-imfor example, can influence the trajectory of a prisonment and continue to incarcerate many case; a prosecutor’s theory of who is responsi- innocent individuals. One possible method of ble for the crime can hamper the full consider- reshaping these incentives is to establish a more ation of other key suspects and evidence. Such nuanced system for evaluating prosecutors’ perbiases often reflect a lack of diversity in pros- formance, one that would assess state attorneys ecutorial offices across the United States. For on prudence during discovery rather than brute example, 95 percent of elected prosecutors are force in trial. Awarding raises, promotions, and white, 79 percent of whom are white men, and recognition for a discerning pursuit of the truth thirty of the fifty states have no black elected creates more proper incentives for prosecutors prosecutors at all.29 The racial divide in pros- than rewarding those who are able to identify ecutorial offices is reflected starkly in convic- and pursue winnable cases. tion rates. In Caddo Parish, Louisiana, a district Scholars agree that unfettered prosecuwith a population of about 250,000, 77 percent torial discretion contributes significantly to the of criminals receiving the death penalty in the past forty years have been black, and nearly half incidence of wrongful conviction. However, were convicted of killing white victims. In this these miscarriages of justice can be avoided by district, a white person has never received the increasing oversight of pre-trial interrogation death penalty for killing a black person.30 Such practices, limiting coercive plea-bargaining statistics raise questions of whether prosecutors practices, and altering the hiring and promotion practices for prosecutors to build more diverse JOHN M. OLIN CENTER FOR LAW, ECONOM- and properly incentivized state attorneys’ officICS, AND BUSINESS FELLOWS’ DISCUSSION es.

SERIES 1, 26 (2011) 29 David Graham, Most States Elect no Black Prosecutors, THE ATLANTIC, July 7, 2015, http:// www.theatlantic.com/politics/archive/2015/07/ american-prosecutors-are-incredible-whitedoes-it-matter/397847/ 30 Rachel Aviv, Revenge Killing: Race and the death penalty in a Louisiana parish, THE NEW YORKER, July 2015, http://www.newyorker.com/ magazine/2015/07/06/revenge-killing

Other Policy Reforms In addition to establishing greater systemic oversight for the U.S. prosecutor and shifting their incentives, there are other major policy reforms that have the potential to act as safeguards against wrongful conviction. For 31

Supra note 14

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Wrongful Conviction and the United States Prosecutor example, it is important to institutionalize education about basic legal rights, particularly to youth, about confessing to crimes they dId not commit. Garrett identifies major rights that are often ignored and thus lead to miscarriages of justice: the right to have all exonerating evidence disclosed, as granted by Brady v. Maryland; the right to counsel, granted by Gideon v. Wainwright; and the right to be free from suggestive eyewitness questioning and coerced confession.32 All of these fundamental rights should be taught in primary and secondary education across the United States and available online, at places of employment, and in public areas.

Next, we can ensure that all police lineups are conducted blindly, such that the law enforcement official in charge of the lineup is unaware of the suspects’ identities and therefore unable to question suggestively. To be sure, though, enforcing such a protocol is easier saId than done. Today, many police departments simply fail to follow already-in-place safeguards for misidentification.33 Keeping every one of the 18,000 police departments in the United States accountable for these policies will require some credible enforcement mechanism.

tens of thousands of innocent people remain behind bars and the resources that could lead to their exoneration are scarce. Thus, we must address an important question: how can these miscarriages of justice be accurately identified? After all, detailed records of the cases are often available only in the local courthouses where the trial took place, and sifting through them for critical errors requires time and expertise. The solution here lies, at least in part, in constant vigilance and in part on policies that make trial records more available for review for organizations that hope to identify potential exonerees. Vigilance can exist in a number of ways, including wide-scale implementation of clinics and coursework at law schools that examine past cases and determine candidates for appeal. And yet, even if a system is developed that enables students or advocacy groups to quickly identify cases of wrongful conviction, appeals are lengthy and extremely difficult to achieve. In other words, even if you can identify in advance where the needle lies in the haystack, it takes years to physically dig it out. For this reason, the emphasis in combatting wrongful conviction should be placed on prevention through prosecutorial oversight and other aforementioned court system reform, such as the introduction of third party experts to ensure more intense scrutiny of forensic, informant, and eyewitness testimony.

Moreover, creating a system for quickly and accurately identifying potential cases of wrongful conviction is vital. The Innocence Project is in the business of finding candidates The death penalty is another facet of for appeals, and while their work has a tremen- sentencing that informs and abets wrongful dous effect on the wrongfully convicted, up to conviction in the United States. It creates a clear incentive for plea-bargaining: that is, avoiding 32 Brady v. Maryland, 373 U.S. 83 (1963); the death penalty is a reason many innocent deGideon v. Wainwright, 372 U.S. 335 (1963); Branfendants plead guilty to capital offenses. Moredon L. Garrett, Innocence, Harmless Error, and over, in a number of instances, DNA evidence Federal Wrongful Conviction Law, WIS. L. REV. has exonerated individuals after their execution, VOL. 35 36, 111 (2005) 33 Brandon L. Garrett, New Recommendations raising new and troubling questions about the Could Improve Eyewitness Testimony, NATIONAL practice of capital punishment, namely “How PUBLIC RADIO, November 18, 2014 at 4:57 PM many innocent people are we executing in the ET http://www.npr.org/2014/11/18/365015946/ United States?” and “Does the existence of capnew-recommendations-could-improve-eyewitital punishment in itself contribute to wrongful ness-testimony

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Wrongful Conviction and the United States Prosecutor conviction?” Any discussion of the sources of wrongful conviction – particularly false confession – cannot be complete without considering the implications of capital punishment. For example, as a result of increased DNA exoneration capacity in the past decade, many convicted criminals are found to be innocent only after their execution. In Illinois, former Governor Pat Quinn became so concerned about this phenomenon that in 2011 he signed into law a bill that would abolish the death penalty in his state. In this instance, the troubling relationship between capital punishment and wrongful conviction served as a strong enough catalyst to end the death penalty in Illinois and is a link that should be examined on a national stage. In sum, the existence and prevalence of the death penalty in the United States fosters false confessions and thus wrongful convictions.

Conclusion Today, tens of thousands of innocent Americans sit in jail. Scholars collectively point to four main causes for such miscarriages of justice: flawed eyewitness identification, deficient or misused forensic evidence, Invalid informant testimony, and false confessions. Measures can be taken to mitigate the prevalence of wrongful conviction, but perhaps none is as crucial as establishing greater oversight and creating new incentives for the U.S. prosecutor, who has an unwarranted degree of influence over the direction and outcomes of criminal cases. Regulating interrogation methods and scrutinizing the validity of evidence—be it forensic, informant, or defendant testimony—are essential for the deterrence of wrongful conviction.

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Constitutional By Any Measure:

Section 203 of the Voting Rights Act of 1965 Brigit Rossbach Yale University Abstract The 2013 Shelby County v. Holder decision ruled that section 4(b) of the Voting Rights Act of 1965 was unconstitutional because the formula contained in this section used data that were over 40 years old. This effectively meant that section 5 of the VRA was useless, because there was no formula to determine which states would be subject to preclearance when changing their voting laws. In this paper, I examine current and historical information about minority voters, with a focus on Native American voters, to analyze whether in light of this decision, Section 203, which provides language provisions to minority voters, would withstand constitutional review by the Supreme Court. Given the history of discrimination against language minorities, current evidence of discrimination still faced by these voters at the polls, and the ethos of voting as a fundamental right in the United States, I find that Section 203 of the Voting Rights Act of 1965 is constitutional, even in the wake of the Shelby County decision.

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Constitutional By Any Measure: Section 203 of the Voting Rights Act of 1965

Introduction Access to polls is a major part of American life and a right that all citizens should be able to take full advantage of. Many American citizens are unaware that the language in a ballot can help minority voters gain a voice. In Harris County, Texas, a Vietnamese legislator had never been elected (the population was nearly 2 percent Vietnamese). Once bilingual assistance was provided in this county, a Vietnamese legislator was elected within a year.1 This success, and similar triumphs of American voting rights, is due to Section 203 of the Voting Rights Act. Relying on authority provided in the second Section of the Fifteenth Amendment to the U.S Constitution, to enforce the article by appropriate legislation, Congress enacted the Voting Rights Act of 1965 to protect the rights of minority voters, particularly African Americans. In 1975, Congress added Section 203 to provide explicit voting protection to Alaskan Native, Asian American, Spanish heritage, and Native American citizens, commonly referred to as “language minorities.”2 Section 203 addresses the likelihood that these four ethnic groups may have difficulty understanding ballot language and remedies this possibility by requiring translated voting materials and oral assistance, both at the polls and during voter registration in certain jurisdictions.

light of Shelby County v. Holder, the protections provided in § 203 would be able to withstand review by the U.S. Supreme Court. Shelby County effected a major change in the standard of review of Congressional authority and reduced Congress’s ability to enact laws to protect minority voting.3 Rather than requiring the states to prove that they are not discriminating against any minority groups, this new standard of review may now place the burden on Congress to prove that laws passed to increase minority protections are necessary and not needlessly infringing on the rights of states.

I will focus my discussion of the history of discrimination and necessity of Section 203 on Native American voters; then I will consider relevant Supreme Court cases, specifically whether the rationale of the City of Boerne v.

Flores should apply to judicial review of Congressional actions taken pursuant to its express constitutional authority granted in the Fifteenth Amendment; and finally I will consider how these cases and precedent apply to the arguments for and against the constitutionality of VRA 203. Given the history of discrimination against language minorities, current evidence of discrimination still faced by these voters at the polls, and the ethos of voting as a fundamental right in the United States, I conclude that Section 203 of the Voting Rights Act is constitutional even under the rationale of Shelby County.

In this paper I will examine historical History of Discrimination Against Naand current information about Native American tive Americans voting, in particular, and analyze whether, in Native Americans, the original inhab1 The Leadership Conference, Real Stories itants of the United States, are one of four of the Impact of the VRA, THE LEADERSHIP ethnic groups assisted by Section 203 of the CONFERENCE ON CIVIL AND HUMAN RIGHTS/THE LEADERSHIP CONFERENCE ON Voting Rights Act of 1975. Native Americans EDUCATION FUND (2016), http://www.civilhave lived in the Unites States the longest, yet rights.org/voting-rights/vra/real-stories.html they have suffered some of the most daunting 2 The United States Department of Justice discrimination, including removal from their Civil Division, History of Federal Voting Rights homelands, prevention of citizenship, and eduLaws, UNITED STATES DEPARTMENT OF JUSTICE http://www.justice.gov/crt/history-federal-voting-rights-laws

3 Shelby County v. Holder, U.S. 570 U.S. (2013).

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Constitutional By Any Measure: Section 203 of the Voting Rights Act of 1965 cation discrimination.

Discrimination in education is also a major problem for many minority groups, including groups eligible for language assistance under Section 203, such as Native Americans.

Extensive research has shown the difficulties of education for minority groups. In U.S. v. Texas, the discrimination Latino students faced in schools was brought to the Fifth Circuit Court.9 Congress based its decision to pass and reauthorize Section 203 on these persistent inequalities in education.10 Congress took into consideration that poor education clearly affects the literacy rates and English comprehension of language minority students.11

In 1830, President Andrew Jackson passed the Indian Removal Act, which resulted in many Native Americans being forcibly removed from their land. Millions of acres were taken from Native Americans.4 In addition to losing their homes, Native Americans also had their culture threatened, as native languages were phased out of schools, and children were sent to English-speaking boarding schools that were meant to stamp out native languages and make Native American children more “cultured.� Native American children were taken forcibly from their families to be sent to these schools and were often physically and sexually History of the Voting Rights Act abused.5 The Voting Rights Act (VRA) was enNative Americans were some of the last acted in 1965, largely in response to the obvious people to become citizens of the United States. discrimination African Americans were facing The Indian Citizenship Act was not passed until at the polls. Groups like the Ku Klux Klan used 1924.6 However, Native Americans did not gain political terrorism to keep blacks from political voting rights until 1948, a mere 68 years ago.7 inclusion.12 The repression was aggressive and Voter turnout in Indian Country is historically occurred on a massive scale across the South. low even to this day. Many reservations are in Even though blacks had gained the right to vote the rural West and are long distances from poll- under the Fifteenth Amendment to the Constiing locations, making voting difficult and de- tution, voting structures across the country had creasing registration and voting outreach.8 been designed to make it difficult for blacks to qualify to vote and to dilute the votes of any 4 U.S. State Department Office of the Histoblacks that were able to cast their ballots. Gerrian, Indian Treaties and the Removal Act of 1830, rymandering, grandfather clauses, poll taxes, THE U.S. STATE DEPARTMENT https://history. state.gov/ 5 D. Wilkins, & H. Stark, AMERICAN INDIAN POLITICS AND THE AMERICAN POLITICAL SYSTEM (2002).

6 NebraskaStudies.org, 1924 Indian Citizenship Act, THE NATIONAL PARK SERVICE (n.d.) http://www.nps.gov/jame/learn/historyculture/upload/Native-American-Citizenship-2.pdf 7 Ojibwa, 14th Amendment and American Indians, DAILY KOS (August 4, 2010) http://www. dailykos.com/story/2010/8/4/890249/8 Joe Kafka, American Indian Voter Turnout Low, NEWS FROM INDIAN COUNTRY (n.d.) http://www.indiancountrynews.com/index.php/ news/26-mainstream-politics/3776-american-indian-voter-turnout-low

9 U.S. v. Texas, 447 F.2d 551 (5th Cir., 1971) 10 Subcommittee on the Constitution of the Committee on the Judiciary House of Representatives 119th Congress First Session. Voting Rights Act: Section 203 - Bilingual Election Requirements November 10, 2005. 109-78. Washington D.C.: U.S. Government Printing Office. http://judiciary. house.gov.

11 Cynthia Hudley, Education and Urban Schools, THE AMERICAN PSYCHOLOGICAL ASSOCIATION (May 2013) http://www.apa.org/ pi/ses/resources/indicator/2013/05/urban-schools. aspx 12 Keith J. Bybee, MISTAKEN IDENTITY: THE SUPREME COURT AND THE POLITICS OF MINORITY REPRESENTATION (1998).

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Constitutional By Any Measure: Section 203 of the Voting Rights Act of 1965 and literacy tests were among the many tactics used to keep black voices suppressed, particularly in the South.13 Any intervention before the VRA was isolated, and the government moved extremely slowly to improve voting systems; litigation was isolated and ineffective.14

neighborhoods in Milwaukee, falsely claiming that “[I]f anybody in your family has ever been found guilty [of a crime], you can’t vote in the presidential election” – and you risk a 10year prison sentence if you do.

Two years later 14,000 Latino voters in Orange County, California, received mailings, warning in Spanish that, “[If] you are an immigrant, voting in a federal election is a crime that can result in jail time.” Both of these blatant falsehoods likely deterred some eligible citizens from going to the polls.18

In March 1965, Senators Mike Mansfield (D-MT) and Everett Dirksen (R-IL) introduced the VRA to enforce the voting rights guaranteed by the Fourteenth and Fifteenth Amendments.15 In August 1965, the Act was passed by Congress and signed into law by President Lyndon Johnson. Although Southern members of Congress claimed the VRA and any federal intervention into voting rights were oversteps of federal power, the Northern members believed the Fifteenth Amendment gave Congress this right.16 After the VRA was enactThis was a clear attempt to disenfraned, the number of African American registered chise Spanish-speaking voters. Continued disvoters nearly doubled.17 crimination throughout the United States makes the Voting Rights Act, particularly Section 203, While the VRA improved African Amer- still necessary today. ican voting, voting rates among language minorities remained depressed across the nation. Necessity of Multilingual Voting MateThis led to the introduction of Section 203 as rials an amendment to the VRA in 1975. Section 203 Experience has shown that, even for applies to Native Americans, Alaskan Natives, people of Spanish heritage, and Asian Ameri- native English speakers, ballot language is concans. Unfortunately, language minorities today fusing. Many ballots are written at an 11th or continue to suffer from voter discrimination and 12th grade reading level, in spite of the fact misinformation. In 2011, former Attorney Gen- that the reading requirement for naturalized citizens is proficiency at the 5th grade level.19 eral Eric Holder said: Thus, the level of proficiency required to underBefore the 2004 elections, fli18 The United States Department of Justice ers were distributed in minority News, Attorney General Eric Holder Speaks at 13 Race, Voting Rights, and Segregation: Direct Disenfranchisement, THE UNIVERSITY OF MICHIGAN (n.d) http://www.umich.edu/~lawrace/ disenfranchise1.htm 14 Id. at 12 15 42 U.S.C. § 203 (1973) 16 Supra note 12, at 5 17 James T. Tucker, Enfranchising Language Minority Citizens: The Bilingual Election Provisions of the Voting Rights Act., 10, N.Y.U. J. LEGIS. & PUB. POL’Y. 195-260 (2006).

the Lyndon Baines Johnson Library & Museum, UNITED STATES DEPARTMENT OF JUSTICE (December 13, 2011) https://www.justice.gov/opa/ speech/attorney-general-eric-holder-speaks-lyndon-baines-johnson-library-museum 19 Committee on the Judiciary, United States Senate, One Hundred Ninth Congress, second session. Continuing need for Section 203’s provision for limited English proficient voters June 13, 2006.

J-109-84. Washington D.C.: U.S. Government Printing Office. http://judiciary.house.gov.

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Constitutional By Any Measure: Section 203 of the Voting Rights Act of 1965 stand information necessary to cast an informed vote is significantly higher than that required to become a U.S. citizen. One of the major arguments against Section 203 is that Americans should speak English, and that allowing groups of Americans to receive translated voting materials encourages them not to learn English. This argument overlooks the fact that it is possible to be born an American citizen and not speak English. For example, Puerto Ricans are American citizens, but Puerto Rico is a bilingual territory.

Many people from Puerto Rico cannot read or speak English because they have been educated in Spanish and spoken Spanish their entire lives.20 Torres v. Sachs, a 1974 district court case prior to the enactment of Section 203, involved the rights of Puerto Ricans to bilingual ballots. There, the Court held that all steps necessary to grant Puerto Ricans the full ability to comprehend their ballots must be taken.21 The 1970 amendments to the VRA prohibit literacy tests for voters, so there is no requirement that any voting American citizen be able to read.22 Additionally, as Torres held, in order for the right to vote truly to have meaning, citizens must have the ability to cast their ballot and understand what and whom they are voting for. It is easy to make it physically possible for a citizen to pull a lever and cast his or her ballot, but that is not truly the right to vote if citizens cannot comprehend what choice they are making. For people speaking English as a second language, voting materials in English can be extremely confusing. More importantly, providing voting materials in these groups’ native language is not difficult and would ensure that the right to vote – and participate in American democracy – is a kept promise.

20 Beyond Language: English as a Second Language, WELCOME TO PUERTO RICO (2016) http://welcome.topuertorico.org/culture/language. shtml 21 Torres v. Sachs, 381 F.Supp 309 (1974) 22 42 U.S.C. § 1973aa-1a. Bilingual election requirements.

Prior Court Cases The constitutionality of various portions of the Voting Rights Act has been challenged many times over the past fifty years.

Several of those challenges are relevant to the potential constitutionality of Section 203. One of the most frequently cited VRA cases, South Carolina v. Katzenbach, upheld Section 5 of the VRA, and endorsed a “rational basis” standard of review.23 This case, heard by the Supreme Court, recognized Congress’s broad Fifteenth Amendment powers to pass anti-discrimination laws in voting. In his opinion, Justice Warren stated that, “[t]he basic test to be applied in a case involving § 2 of the 15th Amendment is the same as in all cases concerning the express powers of Congress with relation to the reserved powers of the States.”24 He was referring to the test established by McCulloch v. Maryland “Let the end be legitimate.”25 Under this analysis, if the end is legitimate, then appropriate means to reach that end are constitutional. Applying that rationale in Katzenbach, the Court held that Section 5 was appropriate and constitutional as the means to achieving the legitimate end of enforcing the voting rights of black voters.26 Using the rational basis test used in Katzenbach, the logic is easy to apply to Section 203. If enforcing the voting rights of language minorities is a legitimate end, the means of requiring translated election materials in counties covered by the formula is constitutional.

Another important case relevant to the constitutionality of Section 203, although not directly about the Voting Rights Act, is City of Boerne v. Flores. This case involved the Religious Freedom Restoration Act (RFRA), and analyzed whether it was constitutional under 23 South Carolina v Katzenbach, 383 U.S. 301 (1966) 24 Id. at 23 25 McCulloch v. Maryland, 17 U.S. 316 (1819) 26 Id. at 23

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Constitutional By Any Measure: Section 203 of the Voting Rights Act of 1965 the Fourteenth Amendment for Congress to infringe on states’ rights by imposing RFRA. The standard of review used by the Court was significantly higher in Boerne—there had to be “admissible evidence” showing unconstitutional behavior by the states as well as “congruence and proportionality” between the means and the ends in order for Congress to exert federal power over the states. In other words, the federal government first had to prove that the states were infringing on the religious freedom of its citizens before it could impose its law.27 The possibility of the Boerne standard of review being applied to voting rights cases was raised in Northwest Austin Municipal Utility District No. 1 v. Holder.28 This standard—requiring congruence, proportionality and admissible evidence of unconstitutional conduct by states before the federal government is empowered to exert its power over the states– could be applied to review congressional acts taken to protect voting rights. Under this standard, the Supreme Court could hold that Section 203 is unconstitutional, at least without specific evidence of state action that is infringing on minority voters’ rights and proof of congruence and proportionality. Furthermore, the use of a rational basis test, type of review that is automatically used by Courts for cases involving constitutional questions, is important in addressing voting rights. This is a more minimal type of review that requires laws to be related to a legitimate government interest in order to be upheld. However, although South Carolina v. Katzenbach applied such a rational basis standard of review to these voting rights laws the famous footnote four of United States v.

Carolene Products Co. suggests that a heightened and either intermediate or strict scrutiny is warranted for legislation aimed at “discrete and insular minorities” in order to protect those 27 City of Boerne v. Flores, 521 U.S. 507 (1997) 28 Northwest Austin Municipal Utility District No. 1 v. Holder, 557 U.S. 193 (2009)

minorities.29 Voting is a fundamental right, and so strict scrutiny should be applied in the case of Section 203. Intermediate scrutiny requires the law to further an important government interest in a way that is substantially related to that interest. Strict scrutiny is a higher level of review that requires the law to further a compelling state interest and be narrowly tailored to meet this interest. Language minorities would fit into the aforementioned category of discrete and insular minorities. Therefore, strict scrutiny would apply when any rights are being taken away from language minorities. Carolene Products was an early case that provided for strict scrutiny of legislation for minorities, and although it appears that the Court may be moving towards allowing heightened scrutiny for protection of the rights of the states, this footnote four was very important in examining actions aimed at minority groups.

In Katzenbach v. Morgan, another voting rights case, Justice Brennan established Brennan’s ratchet theory, which should apply in the case of Section 203. The ratchet theory held that Congress could ratchet civil rights up beyond what the Court had recognized, but could not ratchet down rights.30 In Boerne, the Court stated that this was not the best or necessary interpretation, rejecting the theory. Even though Brennan’s ratchet theory’s undercutting of the judiciary’s power had to be addressed in Boerne, the principle behind the theory still stands.

If a court were to apply the ratchet theory, Congress would have the authority to ratchet up the rights by requiring bilingual voting materials for certain minorities.

The most recent high profile voting rights case, Shelby County v. Holder, struck down Section 4(b) of the VRA as unconstitutional.31 This Section contained the coverage 29 United States v. Carolene Products Co., 304 U.S. 144 (1938) 30 Katzenbach v. Morgan, 384 U.S. 641 (1966) 31 Supra note 3, at 3

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Constitutional By Any Measure: Section 203 of the Voting Rights Act of 1965 formula that determined which jurisdictions were subject to preclearance when changing their voting laws, which is required in Section 5 of the VRA. The Court in Shelby County reasoned that the coverage formula was based on data that were no longer current, as it was 40 years old. The District Court and the U.S. Court of Appeals both held that, because Congress had concluded Section 2 litigation was not sufficient to prevent minority disenfranchisement, Section 4(b) was constitutional.32 However, according to the majority opinion, the facts used to determine which states were subject to preclearance were from when the formula was first developed. That opinion, written by Chief Justice Roberts, held that these standards and facts were out of date and did not reflect the current state of voting rights in any of these states.33 Shelby County was reviewing legislation that helped minorities, which should have been reviewed on a Katzenbach rational basis test. Instead, the Court applied a standard of review that was more rigorous and essentially protected the rights of the State. Therefore, the Supreme Court decided, the preclearance standards were an unjustified burden on states and were not based on current conditions in the designated states, although they did not consider the Boerne standard of whether the requirements were “congruent and proportional” to the offenses committed by the State. Effectively, Shelby County overruled South Carolina v. Katzenbach and raised the level of review that Congress must be able to meet when laws appear to impede on a state’s rights. This is a turn from the level of used when a state law is impeding on the rights of minorities, and in some cases is moving towards a standard of review that raises the protection of a state’s rights almost to the same level as the protection of the rights of a minority group.

32 33

Id. at 31 Supra note 3, at 3

Section 203 Coverage Formula and Requirements Section 203 applies to states and localities where more than ten thousand, or 5 percent, of voting-aged citizens are Alaskan Native, Native American, Americans of Spanish heritage, or Asian-Americans who are limited English proficient.34 Reservations were added in as a separate provision, and if a political subdivision contains an Indian reservation with more than 5 percent American Indian or Alaska Native citizens being members of the same language minority group, Section 203 covers that political jurisdiction as well.35 For Section 203 to apply, these citizens must also have a higher illiteracy rate than the national average.36 In jurisdictions where Section 203 is triggered, the coverage requires that oral and written assistance be provided in the languages that the formula has determined to be necessary in that area. Voting materials must be provided in the languages, unless the languages are traditionally not written. In that case, only oral assistance must be provided. Additionally, helpers must be provided at polling places.37 The reservations Section of the formula is what led to Section 203 applying in all cases where American Indian languages are covered.38 Native Americans are frequently located in more rural areas, and therefore, without the reservations provision it would be more difficult for them to 34 Richard Hasen, The Curious Disappearance of Boerne and the Future Jurisprudence of Voting Rights and Race, SCOTUSBLOG (June 25, 2013) http://www.scotusblog.com/2013/06/the-curious-disappearance-of-boerne-and-the-future-jurisprudence-of-voting-rights-and-race/ 35 Supra note 15, at 5 36 Id. at 35 37 James T. Tucker, & Rodolfo Espino, 12.2, Government Effectiveness and Efficiency? The Minority Language Provisions of the VRA. TEX. J. C.L. & C.R. (2007) 38 Supra note 15, at 5

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Constitutional By Any Measure: Section 203 of the Voting Rights Act of 1965 gain accommodations under Section 203.39

Unconstitutionality of Section 203 Although the factual basis for adoption of 203 may distinguish that Section from Section 4(b) struck down in Shelby County, if the Court extends the review used in Shelby County and moves to a more rigorous standard of review as in Boerne, there is a risk that the Court will conclude that Section 203 is unconstitutional.

One argument against the constitutionality of Section 203 is that English fluency is a requirement for many political rights, and is required to become a naturalized citizen; therefore the protections provided in the Sections are an unnecessary overreach of Congressional power.40 In order to serve on a jury, another major political right, people must be proficient in English. Why is voting any different from jury duty and other political rights? Additionally, an English language test is administered to new citizens. Only American citizens are permitted to vote, so it is arguable that if citizens wish to vote, they should be proficient enough to understand the ballot in English. Moreover, when the 1975 amendments to the VRA, including Section 203, were being reauthorized in 1981, the Civil Rights Commissioner opposed the minority language requirements. His argument was that this Section perpetuates the separation of ethnic groups and creates self-imposed segregation.41 The Commissioner believed that 39 U.S. Census Bureau, The American Indian and Alaska Native Population: 2010, U.S. DEPARTMENT OF COMMERCE (January, 2012) http://www.census.gov/prod/cen2010/briefs/ c2010br-10.pdf 40 U.S. Citizenship and Immigration Services, The Naturalization Test, USCIS (June 25, 2014) https://www.uscis.gov/us-citizenship/naturalization-test 41 Anthony A. Peacock, DECONSTRUCTING THE PUBLIC: VOTING RIGHTS, THE SUPREME COURT, AND THE FOUNDERS’

a fully integrated society in the United States requires that all citizens speak the English language rather than being given ways to avoid learning the language of the country. Finally, notwithstanding these factual concerns, a major issue is whether Congress has the power under the Fourteenth and Fifteenth Amendments to impose these voting requirements on the states at all. After preclearance was essentially struck down in Shelby County, this sort of congressional intrusion into the states – otherwise not permitted in our federal system -- may be more difficult to justify, particularly if the review standard in Boerne is adopted for voting rights.

Furthermore, if the data determining which jurisdictions are covered by Section 203 are not kept current, Section 203 is as vulnerable as Section 4(b) struck down in Shelby County.

Constitutionality of Section 203 It is interesting that many past cases were focused on the standard necessary to prevent the government from discriminating against minorities and taking rights from them, but current court cases are now more focused on requiring the government to provide evidence and withstand heightened scrutiny for what it is doing to protect the rights of minorities.42 The major issue when it comes to the constitutionality of the VRA and Section 203 should be whether there is a rational basis for Congress’s action and it is not an overreach of federal powers into states, but Shelby County made it an issue of whether the government has sufficiently justified its protection of minority groups.

As noted, the Supreme Court struck down Section 4(b) of the VRA in Shelby County because the coverage formula relied on facts that were out of date, according to Chief Justice Roberts who wrote for the 5-4 majority. Because the coverage formula was last updated in 1975, the Chief Justice held that it was an overreach REPUBLICANISM RECONSIDERED (2008).

42 Supra note 34, at 11

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Constitutional By Any Measure: Section 203 of the Voting Rights Act of 1965 of Congress’s power over the states and an unfair burden on them.43 Shelby County is the most major decision involving voting rights in recent history and could foreshadow new standards of review for due process cases. Some argue that requiring that Congress continually update and change its intervention strategies for remedying voting problems in the Sections delineated by VRA 203 constitutes a significant burden for its efforts to protect language minority voting.

However, in the case of Section 203, significant evidence shows the continued necessity of the requirements. Many studies, including the 2006 report by the Asian American Legal Defense and Education Fund entitled “Asian Americans and the Voting Rights Act: The Case for Reauthorization,” have examined the necessity of bilingual ballots and determined that these translated services are vitally necessary in many jurisdictions.44 Additionally, in 2006 there was consideration of amending Section 203 to be updated continually on a five-year basis based on American Community Survey data.45 This would make Section 203’s requirements proportional to the offenses committed by states and the needs of the language minorities. It would remove one of the major concerns of this Section of the VRA and ensure the issues of Shelby County would not be repeated in future Court cases.

The Court’s concern about disparate or selective treatment of some states is inconsistent with the Reconstruction amendments themselves. The Fourteenth and Fifteenth Amendments were implemented in a selective manner. Some states, the states that had joined the Southern Confederation attempting to secede, had to ratify the Fourteenth Amendment before being allowed to claim their seats in Congress. Northern states had no such requirement to ratify this Amendment, so in a sort of 43 44 45

Id. at 42.

Supra note 19, at 7 Id. at 44

coverage formula—based on whether the state had joined the Confederation -- some states had stricter requirements than others.46 The focus of the American government and people at the time was to right prior wrongs against a minority group, and the historical framing of the Fourteenth Amendment, and the Fifteenth as well, justifies the VRA as a whole and Section 203 in particular. The rational basis test should be applied to determine the constitutionality of this Section. Section 203 is righting the wrongs against language minorities, a legitimate government interest. Based on the historical context of the Reconstruction Amendments and the rational basis test, Section 203 is constitutional.

Finally, the right to vote is deeply rooted in the American ethos. Although the right is one that has been given out slowly to different groups over time, it is a right that no one in the United States is allowed to take away. Therefore, any cases involving restrictions by states in voting rights should be viewed as subject to strict scrutiny. In the federal government’s attempts to further voting rights and impede state restrictions, Section 203 should be upheld as constitutional under a rational basis standard.

Conclusion The United States has a long history of permitting Congress to get involved in the activities of states when it involves minority rights and other fundamental rights of the American people. The Civil Rights Act and Voting Rights Act, as well as the ratification of the Fourteenth and Fifteenth Amendments, have become part of the American ethos, because they affect the rights of the states to restrict voting, measures to aid voting have been allowed.

Before Shelby County there was little 46 Akhil R. Amar, 126.4, The Lawfulness of Section 5- and Thus of Section 5. HARV. L. REV. (2015)

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Constitutional By Any Measure: Section 203 of the Voting Rights Act of 1965 doubt that Section 203 was constitutional. The necessity of this Section to aid the language minorities within the United States in having the right to vote is clear. As argued above, for the right to vote to be more than empty words, individuals must be able to understand the choices they are making on the ballot so they can select the representative best suited to their needs and desires. For citizens for whom English is not their first language, comprehending the ballot can be very difficult, and the availability of voting materials translated into their native language or oral assistance can make the difference in their actual ability to vote.

Since Shelby County and Boerne began to move the standard of strict scrutiny and admissible evidence away from only applying to laws that take rights away from minorities, and towards federal laws that require more assistance be given to minorities from the states, the constitutionality of Section 203 has gotten more complicated. However, as argued above, the evidence of the necessity for Section 203 is current and compelling to the problem. Additionally, Section 203 uses American Community Survey data to determine which jurisdictions are covered. The data are annually updated and available, and avoid any problems of out of date formulas and facts putting an unnecessary burden on states.47 Even in the wake of Shelby County imposing a higher standard of review for the constitutionality of voting rights legislation, Section 203 remains needed in America. If this Section is brought to court, it should be examined under rational basis review, and any infringements on the voting rights of minorities should be given strict scrutiny. Even if not, it withstands the higher standard of review and continues to enhance the rights of language minorities in the United States.

47 Akhil R. Amar, 126.4, The Lawfulness of Section 5- and Thus of Section 5. HARV. L. REV. (2015)

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The Battle for Telemedicine: Teladoc v. Texas Medical Board Robert Cortes Georgetown University Marisa Finley, J.D., LLM Baylor Scott & White Center for Healthcare Policy J. James Rohack, M.D. Baylor Scott & White Center for Healthcare Policy Abstract Modern healthcare is evolving in more ways than ever before. Despite recent technological advances in healthcare, the Texas State Government remains reluctant to support the widespread use of telemedicine. Through various legal maneuvers, the Texas Medical Board (TMB) has continually resisted the new business model Teladoc and other telemedicine providers utilize to provide healthcare. Founded in Dallas, Texas in 2002, Teladoc offers patients 24/7 access to licensed physicians via phone and video consultations and operates as the United States’ largest telemedicine provider. After the TMB issued a letter to Teladoc in June 2011 that claimed Teladoc physicians were jeopardizing their licenses by treating patients before physically meeting them, Teladoc and TMB plunged into a series of lawsuits. Currently, they are settling an anti-trust dispute that could determine the future of telemedicine in Texas, especially taking into account the recent Supreme Court ruling North Carolina Board of Dental Examiners v Federal Trade Commission. Considering the extreme shortage of physicians in Texas, the exceedingly high health care costs, and the remarkable benefits of the growing telemedicine industry, it is essential that the evolution of healthcare delivery is allowed to progress and pave the path towards better access to twenty-first century healthcare delivery.

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The Battle For Telemedicine: Teladoc v. Texas Medical Board

Introduction Modern healthcare is evolving in more ways than ever before. Technology has converged with medicine to create an entirely new field of healthcare delivery: telehealth. Within the broad realm of telehealth lies the field of telemedicine, which encompasses interactions between patients and physicians via telecommunication that involves more than a telephone conversation. Even within telehealth, new advances are constantly being made. Consider Merck’s new telemedicine center in Kenya, which provides medically underserved populations in rural areas with access to quality healthcare, or look to the Fitbit, a telehealth device that allows consumers to monitor their heat rate, steps walked, and calories burned without the slightest effort.1 Recently, a professor at the Massachusetts Institute of Technology created an iPhone accessory that replaces the 40-pound, $10,000 refractor tool doctors currently use to inspect our vision.2 As telehealth and telemedicine continue to evolve and expand, more people are gaining access to quality healthcare at a fraction of the cost.

Despite recent technological advances in healthcare, the Texas State Government remains reluctant to support the widespread use of telemedicine. Through various legal maneuvers, the Texas Medical Board (TMB) continues to resist the new business model used by telemedicine providers like Teladoc.

Founded in Dallas, Texas in 2002, Teladoc offers patients 24/7 access to licensed physicians via phone and video consultations and 1 Adam Bluestein, As Smartphones Get Smarter, You May Get Healthier: How mHealth Can Bring Cheaper Health Care to All, FAST COMPANY (Jan. 9, 2012, 9:01 PM), http://www. fastcompany.com/ 1802735/smartphones-get-smarter-you-may-gethealthier-how-mhealth-can-bring-cheaper-healthcare-all.

2 Id.

operates as the United States’ largest telemedicine provider.3 In June 2011, the TMB issued a letter to Teladoc claiming that an initial face-toface meeting between a patient and physician is necessary to establish a “proper professional relationship,” and, without doing so, Teladoc physicians are “jeopardizing their licenses” by treating patients before physically meeting them.4 This letter was no doubt problematic for Teladoc, a company that relies on Texas for 23 percent of its overall revenue.5 Since 2011, Teladoc and the TMB have plunged into a series of lawsuits and are currently settling an antitrust dispute that could determine the future of telemedicine in Texas—taking into account the recent Supreme Court ruling North Carolina Board of Dental Examiners v Federal Trade Commission.6 Considering the extreme shortage of physicians in Texas, the exceedingly high health care costs, and the remarkable benefits of the growing telemedicine industry, it is essential that the evolution of healthcare delivery progresses.7 To pave the path towards better access to twenty-first healthcare, telemedicine should be supported, not impeded, by regulators.

History The fight began with the TMB’s New Rule 174.8 After Teladoc introduced services in 3 Teladoc, About Our Company, TELADOC INC., https://www.teladoc.com/about-our-company/.

4 KARA NUZBACK, TEX. MED. ASS’N, MEDICAL BOARD WAGES WAR OVER TELEPHONE TREATMENT, 111.4 at 45 (2015).Template.aspx?id=33123.

5 Teladoc, Inc. v. Tex. Med. Bd., No. 1-15CV-343 RP, LEXIS 90230, (W.D. Tex. May. 29, 2015) 112 F. Supp. 3d 529, 2015 U.S. Dist. LEXIS 90230 (W.D. Tex. 2015).

6 North Carolina Board of Dental Examiners v. Federal Trade Commission, 574 U.S. (2015).

7 Supra note 5, at 8.

8 Supra note 5, at 3.

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The Battle For Telemedicine: Teladoc v. Texas Medical Board Texas in 2005, it experienced dramatic success in its first major deal in May 2008 with Assurant, a $26 billion insurance company. 9In the following years Teladoc partnered with other insurance groups, including Texas Medicaid, OptumHealth and Amerigroup, while also increasing its membership by 73 percent from 2008 to 2010.10 However, not all who witnessed Teladoc climb the ladder of success were impressed. In fact, the TMB was concerned about Teladoc’s effect on patient safety. It viewed telemedicine as a dangerous way to practice medicine, considering doctors had no physical contact or prior relationships with their patients. In that spirit, the TMB amended the existing Rule 174 on October 17 2010 to create New Rule 174, which required “an initial in-person meeting between physician and patient before a patient and physician could meet using videoconferencing technology.”11 After this took effect, Teladoc was unable able to offer video consultations in Texas and had to rely completely on telephone services.12 New Rule 174 hindered Teladoc’s ability to function, but its profits continued to grow to $6.4 million in 2011.13 The rule amendment marked the beginning of a lengthy and currently unresolved legal battle between a state agency and a boundary-pushing company.

words, by neglecting to conduct face-to-face visits before treating patients, Teladoc physicians were improperly practicing medicine, according to the TMB. The TMB rooted its claim in the existing Rule 190.8, which states that, before writing a prescription, a physician must “establish a diagnosis through the use of acceptable medical practices such as patient history, mental status examination, physical examination, and appropriate diagnostic and laboratory testing.”15 Although some might infer that the phrasing of the rule, including the words “such as,” implies that the subsequent examples of acceptable medical practices are suggestions, not requirements, the TMB interpreted this rule to mean that an in-person physical examination was required in all cases of prescription.16 This interpretation posed an enormous threat to Teladoc, a business intentionally designed to function without in-person examinations.

Teladoc immediately sued the TMB in July 2011, claiming that the latter’s letter was an “unpublished rule” that violated section 2001.024.8C of Texas’ Administrative Procedure Act (APA) by amending a rule without following the notice-and-comment requirements of Texas’ Administrative Procedure Act.17 Teladoc argued that the TMB’s letter “was not an interpretation of existing Rule 190.8 but an amendment of the rule.”18 When the case went One unsuccessful attempt was not to summary judgment in August 2011, the court enough to discourage the TMB. On June 16 sided with the TMB, concluding that the letter 2011, the TMB sent a letter to Teladoc claim- was not an unpublished rule.19 Luckily for Teling that its physicians were “jeopardizing their licenses by failing to establish a proper profes- PHONE TREATMENT, 111.4 at 45 (2015).

TEX. ADMIN. CODE tit. 22, § 190.8 sional relationship with the patient.”14 In other 15

9 Complaint and Demand for Jury Trial at, Teladoc Inc. v. Tex. Med. Bd., No. 1-15-CV-343 (W.D. Tex. April 29, 2015).

10 Id. at 21.

11 Supra note 9 at 23.

12 Id. 13 Supra note 9 at 33.

14 KARA NUZBACK, TEX. MED. ASS’N, MEDICAL BOARD WAGES WAR OVER TELE-

(West, Westlaw through 2015 Tex. Reg. No. 5188, as effective on or before Aug. 21, 2015).

16 Supra note 9 at 25-26.

17 KARA NUZBACK, TEX. MED. ASS’N, MEDICAL BOARD WAGES WAR OVER TELEPHONE TREATMENT, 111.4 at 45.

18 Supra note 9 at 24.

19 KARA NUZBACK, TEX. MED. ASS’N, MEDICAL BOARD WAGES WAR OVER TELEPHONE TREATMENT, 111.4 at 45 (2015).

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The Battle For Telemedicine: Teladoc v. Texas Medical Board adoc, the judge granted a temporary restraining order against the TMB to ensure that Teladoc could practice business while the case was in dispute.20 After the TMB’s victory, Teladoc appealed, and the restraining order was extended.21 While Teladoc’s appeal was underway, the company saw tremendous success in partnerships. It partnered with over 1,600 employers – including AT&T, Bank of America, Costco, General Mills, Lockheed Martin, MetroPCS, and Shell – and began offering its services through major insurance companies such as Blue Shield, Highmark, and Aetna.22 Teladoc experienced more success in December 2014, when the Texas Third District Court of Appeals reversed the lower court ruling and decreed that the “TMB violated the APA by altering rules related to telemedicine without initiating the formal rulemaking process.”23 The court supported its ruling with the claim that the “TMB’s pronouncements hardly track Rule 190.8….[R] ather, they depart from and effectively change that text.”24 The ruling was a relief for Teladoc, but the litigation did not end there.

On 16 January 2015, the TMB issued an emergency ruling that amended Rule 190.8 to read that “a face-to-face visit or in-person evaluation is required before a practitioner can issue a prescription for drugs.”25 The TMB’s executive director, Mari Robinson JD, claimed the recent appeals court decision caused a “public emergency” and insisted that “the purpose of the emergency amendment was to protect the 20 Supra note 9 at 24-25.

21 Supra note 9 at 25.

22 Supra note 13.

23 KARA NUZBACK, TEX. MED. ASS’N, MEDICAL BOARD WAGES WAR OVER TELEPHONE TREATMENT, 111.4 at 45 (2015).

24 Supra note 9 at 3.

25 KARA NUZBACK, TEX. MED. ASS’N, MEDICAL BOARD WAGES WAR OVER TELEPHONE TREATMENT, 111.4 at 45 (2015).

public health and welfare.”26 Four days later, Teladoc sued the TMB and received another temporary restraining order against the TMB. On February 6, the District Court sided with Teladoc, asserting that “no imminent peril to public health, safety or welfare existed on 16 January 2015 or exists at the present time to justify adoption of the emergency rule and [therefore] it is invalid.”27 In April 2015, the TMB followed proper APA regulations and voted 14-1 to adopt New Rule 190.8, which required a face-to-face visit before a physician can issue a prescription to a patient unless the patient is at a healthcare facility, with a healthcare professional or a mental health patient.28 In March 2015, when New Rule 190.8 was initially proposed, 203 out of the 206 comments sent to the TMB opposed adopting the rule.29 Regardless of the pronounced opposition, the TMB published New Rule 190.8 in an effort to address the presumed public health emergency created by Teladoc’s business model.

Teladoc swiftly filed a lawsuit in the U.S. District Court Western District of Texas on 29 April 2015, claiming that the TMB violated the Sherman Antitrust Act by “restrict[ing] competition from telehealth.”30 In the complaint, Teladoc accused the TMB of attempting to eliminate Teladoc’s services multiple times in an effort to prevent its out-of-state physicians from competing with Texas physicians. After the adoption of New Rule 190.8 in April, Bill Hammond, the CEO of the Texas Association of Business, argued that the rule was “about doctors protecting others doctors’ income. It’s about 26 Id. 27 Supra note 9 at 26.

28 TEX. ADMIN. CODE tit. 22, § 190.8 (West, Westlaw through 2015 Tex. Reg. No. 5188, as effective on or before Aug. 21, 2015).

29 Supra note 9 at 26.

30 Supra note 9 at 2.

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The Battle For Telemedicine: Teladoc v. Texas Medical Board dollars. It’s not about better healthcare.”31 The TMB’s claim of “protecting the public health and welfare” became questionable considering that during the Board’s hearing on the adoption of New Rule 190.8, no empirical evidence was presented showing actual harm done to a patient

by Teladoc or any other telehealth provider.32 Exactly one month after Teladoc filed suit, District Court Judge Robert Pitman issued a temporary injunction granting it relief from the TMB’s New Rule 190.8 until after the current lawsuit is decided.33 After finding that over 50 percent of Teladoc users do not have a regular physician, Judge Pitman wrote in his decision, “Elimination of physicians providing healthcare [via telemedicine] would thus negatively impact not just the competitor physicians, but consumers, a classic antitrust injury.”34 For Teladoc, this May 29th ruling came just in time, considering New Rule 190.8 was scheduled to take effect on June 3rd.35 Jason Gorevic, the CEO of Teladoc, praised the ruling and its implications for his company and the entire field of telemedicine. Gorevic noted that “[i]n the face of increasing physician shortages and rising health care costs, other states across the country have found solutions that embrace telehealth, and all its benefits, while ensuring patient safety. Today’s court ruling allows Texans to continue enjoying these benefits as well.”36 With a stay in place, the merits of the case are 31 Supra note 9 at 5.

32 Supra note 9 at 27.

33 Supra note 5 at 20.

34 Supra note 5.

35 Edgar Walters, Teladoc Scores Early Victory in Clash With Medical Board, The Texas Tribune, May 30, 2015, https://www.texastribune.org/2015/05/30/teladoc-scores-early-victory-against-medical-board/.

36 Federal Court Rules in Favor of Teladoc, TELEDOC.COM: NEWSROOM, https://www.teladoc.com/news/2015/05/29/federal-court-rules-in-favor-of-teladoc (last visited Aug. 11, 2015).

currently pending before Judge Pitman.

Analysis During this state of legal limbo, one must not only consider who will win, but which healthcare policy will benefit the citizens of Texas most. On one side lies Teladoc, a flourishing telemedicine company changing the landscape of healthcare through its innovative business model. Then there’s the TMB, a state agency charged with providing safe healthcare for Texans through its regulation of physicians.

Both of these organizations benefit society but do so with different approaches.

Teladoc claims to offer convenient, high-quality healthcare 24/7 for a low cost.

These claims hold up quite well: its $40 consultations are offered at all times of the day from trained physicians with state-specific licenses.37 Teladoc allows anyone to get medical treatment from the comfort of his or her home for an average of $100 less than it costs to physically visit a doctor’s office.38 Teladoc also makes health care more affordable for companies and insurers. For example, in a Harvard Medical Professor’s study of Teladoc’s partnership with a retail company, the use of Teladoc consultations instead of physician office and emergency room visits saved the company more than $5.4 million per year.39 Yet, Teladoc emphasizes that it “cannot treat serious problems or medical emergencies and [is] meant to complement, not replace, peoples’ relationships with their doctors.”40 Among other things, Teladoc does not prescribe 37 Supra note 9 at 10.

38 Id. 39 Niteesh Choudry, Changing Healthcare Access for the Better, Teladoc, May 22, 2014.

Web. 27 July 2015.

40 Abby Goodnough, Texas Medical Panel Votes to Limit Telemedicine Practices in State, N.Y. TIMES, Apr. 10, 2015, http://www. nytimes.com/2015/04/11/us/texas-medical-panel-votes-to-limit-telemedicine-practices-in-state. html.

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The Battle For Telemedicine: Teladoc v. Texas Medical Board narcotics, other controlled substances, or “lifestyle drugs” like Viagra.41 Moreover, Teladoc’s services come at a crucial time for Texas, a state with 200 medically underserved counties, 16 counties with just a single physician and 27 counties without any physicians at all.42 Teladoc aims to bridge that gap of treatment by offering services that anyone can access, regardless of their location or resources. That goal is being accomplished, considering that 94 percent of Teladoc’s 700,000 patients have their medical issues resolved.43 Furthermore, it is clear that Teladoc’s model is profitable, considering that they sold over $270 million in shares when they rolled out their initial public offering.44 Teladoc, moreover, retains a patient satisfaction rate of 95 despite its 2.4 million members and 300,000 consultations per year.45 In sum, it has proven its value to patients and payers in the current healthcare market.

The TMB, despite its critical role in regulating the practice of medicine, ended up in the twentieth century of this debate. In its mission statement, it claims to “protect and enhance the public’s health, safety and welfare.”46 Each time the TMB has made efforts to limit Teladoc, its rationale has always involved the “safety” of the public, yet it has never provided any evidence that telemedicine is actually dangerous or unsafe. Furthermore, the selective attention the TMB has focused on Teladoc regarding pa41 Id. 42 Bill Frist, Why Texas Is Missing out on the Future of Medicine, Fortune, May 9, 2015, http:// fortune.com/2015/05/09/why-texas-is-missing-outon-the-future-of-medicine/.

43 Supra note 9 at 19.

44 Ben Mitchell, Teladoc Shares Surge 50% in Healthy IPO Debut, USA Today, July 1, 2015, http://americasmarkets.usatoday.com/2015/07/01/ teladoc-shares-surge-more-than-50-in-healthy-ipodebut/.

45 Supra note 9 at 15.

46 Texas Medical Board, Mission Statement, Texas Medical Board, http://www.tmb.state.tx.us/.

tient safety is misplaced. Teladoc rigorously trains, monitors, and audits its physicians in an effort to ensure the highest quality of telemedical health care. It has never had a medical malpractice claim.47 The stringent quality control measures have also earned Teladoc certification from the National Committee for Quality Assurance.48 Even Judge Pitman found the TMB’s position to be weak, declaring that “[Its] testimony is essentially anecdotal.”49 It seems that more than protecting the public from dangerous healthcare, the TMB has been protecting instate physicians from out of state competition.

If Teladoc’s telephone consultations raise concern for the TMB about patient safety, it is perplexing why it has allowed the historic practice of on-call services to continue undisturbed. In a Teladoc consultation, physicians are equipped with specific training on telemedicine and HIPAA-compliant access to its patient records, pictures, and drug-related risks.50 In an on-call practice, physicians take turns covering other physicians’ patients that they have never met face-to-face, often without the same resources as Teladoc, outside of any regulation by the TMB.51 Although public health, safety and welfare are of vital importance, the TMB’s regulation of telemedicine in Texas has been inconsistent and misplaced.

47 KARA NUZBACK, TEX. MED. ASS’N, MEDICAL BOARD WAGES WAR OVER TELEPHONE TREATMENT, 111.4 at 45 (2015).

48 Supra note 9 at 17.

49 Supra note 5 at 10.

50 Supra note 9 at 20.

51 Id.

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The Battle For Telemedicine: Teladoc v. Texas Medical Board

The Future of Teladoc v TMB

er oversight by the State of Texas on each of its potentially anticompetitive rule changes, its Regardless of either party’s broader in- immunity to antitrust lawsuits may not be reterests, the current lawsuit only concerns itself linquished, and the TMB might win the current with whether the TMB has violated the Sherman lawsuit.

Antitrust Act and/or the Commerce Act.52 While Therefore, the deciding factor in the Judge Pitman’s temporary injunction certainly provides some hope for Teladoc, the TMB has current legal dispute between Teladoc and the a substantial advantage: antitrust immunity. TMB will be whether Judge Pitman considers In 1943, the Supreme Court ruled in Parker v the State of Texas’ oversight of the TMB to Brown that actions taken by the state govern- be “active.” In NCBDE v FTC, the Court used ment were immune to federal antitrust law.53 guidelines from the 1980 case, Cal. Liquor Under this ruling, the TMB would effectively Dealers v Midcal Aluminum, to define active supervision as a structural component that proevade Teladoc’s most recent complaint case. vides “realistic assurance” that the market parHowever, in February of 2015, the Su- ticipant regulators “promote state policy, rathpreme Court ruled in North Carolina Board of er than the party’s individual interests.”57 The Dental Examiners v Federal Trade Commis- Court supported a “flexible and context-depension that “because a controlling number of the dent” approach but delineated several specific Board’s decisionmakers active market partici- requirements of active supervision.58 The state pants in the occupation the board regulates, the supervisor must “review the substance of the Board can invoke state-action immunity only if anticompetitive decision” and “have the power it is subject to active supervision by the State.”54 to veto or modify particular decisions to ensure This ruling was delivered after the North Car- they accord with state policy.”59 Furthermore, it olina Dental Board began issuing cease-and- “may not itself be an active market participant” desist letters to non-dentists, claiming that they to ensure no further conflicts of interest.60 These could not offer teeth-whitening services be- guidelines on active supervision seek to estabcause they were not licensed in dentistry.55 A lish constant oversight of state boards and to conflict of interest exists when a group of health prevent board members from using their posiprofessionals proactively attempts to eliminate tions of power to further their interests as active competitors through denying membership to a market participants. state licensing board. This same conflict of inWhile it is unlikely that Judge Pitman terest exists for the TMB, whose membership is primarily active participants in the healthcare will retroactively enforce these new requireindustry.56 However, if the TMB received prop- ments on the TMB, the possibility exists that it will be lose its antitrust immunity for making 52 Supra note 9 at 2. pronouncements that “hardly track” state policy 53 Parker v. Brown, 317 U.S. 341 (1943). but “depart from and effectively change [state 54 Supra note 6 at 2. policy],” as was ruled by the Texas Third Dis55 Taft Stettinus & Hollister LLP, Supreme trict Court of Appeals in December 2014.61 If

Court Limits Antitrust Immunity for Certain State Agencies, TAFTLAW.com, March 2, 2015, http://www.taftlaw.com/news/publications/detail/1216-supreme-court-limits-antitrust-immunity-for-certain-state-agencies.

56 Texas Medical Board, Texas Medical Board Biographies, TEXAS MEDICAL BOARD,

www.tmb.state.tx.us/page/medical-board-bios.

57 Supra note 6 at 4.

58 Id. 59 Id. 60 Supra note 6 at 5.

61 Supra note 9 at 3.

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The Battle For Telemedicine: Teladoc v. Texas Medical Board the outcomes of the most recent legal confrontations between Teladoc and the TMB are any indication of how the current lawsuit will be decided, Teladoc may prevail.

Ultimately the patients of Texas will be the arbitrators of whether this new mode of healthcare delivery will continue to provide sustainable value over time. If not, Teladoc’s model will not be financially viable. However, if the early indications of quality care, low cost and high patient satisfaction continue, telemedicine will be a significant solution for providing healthcare in the State of Texas.

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