Author: zleibman1

Lower Ed: The Troubling Rise of For-Profit Colleges in the New Economy

Exciting event/webcast at the Berkman Klein Center tomorrow, connected to the Justice Lab paper on the American Student Debt Crisis, with a focus on for-profit colleges:

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More than two million students are enrolled in for-profit colleges, from the small family-run operations to the behemoths brandished on billboards, subway ads, and late-night commercials. In Lower Ed Tressie McMillan Cottom parses the fraught dynamics of this big-money industry to show how it is part and parcel of the growing inequality plaguing the country today. McMillan Cottom discloses the shrewd recruitment and marketing strategies that these schools deploy and explains how, despite the well-documented predatory practices of some and the campus closings of others, ending for-profit colleges won’t end the vulnerabilities that made them the fastest growing sector of higher education at the turn of the twenty-first century. 

Drawing on more than one hundred interviews with students, employees, executives, and activists, Lower Ed tells the story of the benefits, pitfalls, and real costs of a for-profit education. It is a story about broken social contracts; about education transforming from a public interest to a private gain; and about all Americans and the challenges we face in our divided, unequal society.

Friday, June 23, 2016 at 12:00 pm
Berkman Center for Internet & Society at Harvard University
Harvard Law School campus
Wasserstein Hall, Room 1010
RSVP required to attend in person
Event will be live webcast at 12:00 pm

 

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Historic Harris County Decision

On April 28th, Judge Lee H. Rosenthal issued an unprecedented 193-page ruling, holding that the Harris County money bail system is unconstitutional. The judge considered hundreds of exhibits, thousands of videos, hundreds of thousands of records, and numerous live expert and factual witnesses over an eight-day trial. She concluded that the Harris County’s bail system unfairly punishes the poor by ignoring individuals’ ability to pay bail. The court would arbitrarily set bail based and often ignored recommendations to release non-violent people on personal bonds.

In closing, Judge Rosenthal wrote, “In Harris County, they may be homeless. They may lack family, friends, and [people in their lives willing to bail them out]. Some are, no doubt, of bad reputation and present a risk of nonappearance or of new criminal activity. But they are not without constitutional rights to due process and the equal protection of the law.”

Going forward, Harris County will have to ask all those arrested on misdemeanor charges about their financial situation. If a person is eligible for release, they must be released on unsecured money bond. The decision will apply to over 50,000 misdemeanor arrestees in Harris County every year.

“The opinion destroys the supposed justifications of the American wealth-based pretrial detention system in devastating factual and legal detail,” stated Alex Karakatsanis, the lead attorney for Civil Rights Corps, which represents one of the plaintiffs. “In my view, it is a turning point for our criminal legal system.”

Arkansas Executions

Arkansas’ attempt to execute eight death row inmates prior to April 30th, when their supply of midazolam expires, stands in stark contrast to the declining trend of execution by lethal injection and opens a new front in the culture wars.

According to the Bureau of Justice Statistics, execution by lethal injection has fallen significantly since the turn of the century. At its peak in 1999, 98 people were executed; that number dropped to 35 in 2014. While this stems from many factors, part of the change is from the three drugs involved in the process: midazolam, which is used to render the individual unconscious; vecuronium bromide, which is used to halt their breathing; and potassium chloride, which stops their heart. Controversy has surrounded the drugs’ use as many producers sought to distance themselves and their products from lethal injections. For instance, several European drug companies began banning exports of these types of drugs, notably sodium thiopental the precursor to midazolam, to the U.S. starting in 2010. Shortly afterward, Hospira, based out in Illinois, stopped making the drug as well. The culmination occurred in 2012 when the EU created export controls over these products.

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Given the new restrictions, states looking to execute prisoners sought out new, and arguably less effective, alternatives such as midazolam. In one such case that went to the Supreme Court, Joseph R. Wood III suffered for two hours after receiving a lethal injection. With the introduction of the new drugs, there has been an increased number of lawsuits for injunctions and stays of execution. The main argument of these cases revolves around midazolam’s inability to work as an effective sedative and the Eighth Amendment rights of prisoners, specifically regarding the infliction of cruel and unusual punishment.

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Until recently, Arkansas seemed to be following the national trend, having not executed an inmate since 2005. However, on February 27th, Governor Hutchinson set the execution dates of eight men, and on April 20th, the state carried out its first execution in over a decade. Ledell Lee was executed by lethal injection moments before his death warrant was to expire. This was quickly followed by the double execution of Jack Harold Jones and Marcel Wayne Williams on April 25th. This double execution was the first of its kind since 2000. Finally, Kenneth Williams was executed on April 27th.

The executions speak to a larger political sea change. Justice Gorsuch was nominated to the Supreme Court on January 31st, and confirmed on April 7th. Now on the bench, Gorsuch will break the 4 – 4 splits of the previous few months, moving the Court in a conservative direction. This was the case with Ledell Lee who appealed his case to the Supreme Court. The Court ruled the execution could move ahead minutes before his death warrant expired, with Gorsuch placing the tiebreaking vote.

The ruling on Lee came after injunctions from the Fifth Circuit Court and Eighth Circuit Court of Appeals blocked the executions because of issues surrounding the drugs midazolam and vecuronium bromide. The Eight Circuit Court of Appeals cited several previous ineffective uses of midazolam and the prisoners’ Eighth Amendment rights in issuing its April 15th injunction. As the court stated, “The threat of irreparable harm to the plaintiffs is significant: If midazolam does not adequately anesthetize plaintiffs, or if their executions are ‘botched,’ they will suffer severe pain before they die.”

The Fifth Circuit Court ordered a separate temporary injunction based on a lawsuit filed by McKesson, the company that distributes vecuronium bromide. The company claimed the state misled them about the use of the drug. However, this injunction was vacated after Arkansas appealed it in the State Supreme Court—a ruling that clears the way for the drug to be used in future executions.

In his dissent to the Lee case, Justice Breyer wrote:

The apparent reason has nothing to do with the heinousness of their crimes or with the presence (or absence) of mitigating behavior. It has nothing to do with their mental state. It has nothing to do with the need for speedy punishment. Four have been on death row for over 20 years. All have been housed in solitary confinement for at least 10 years. Apparently the reason the State decided to proceed with these eight executions is that the ‘use by’ date of the State’s execution drug is about to expire. In my view, that factor, when considered as a determining factor separating those who live from those who die, is close to random.

It is becoming clear that, in the current political environment, the Eighth Amendment has less traction than it ought when determining death penalty cases. Whether it is an emphasis of market factors over individual lives or a lack of concern about the pain an inmate suffers, courts are becoming more stringent about what “cruel and unusual” means. As such, lawyers will need to take new approaches to defend their clients.

Four of the executions have been blocked. Stacey E. Johnson received a stay to allow for new forensic evidence. Working in coordination with the Innocence Project, lawyers successfully argued for a stay of execution, stating “newer methods of DNA testing that have never been performed in the case could provide compelling proof that Johnson didn’t commit the crime.”

Don William Davis and Bruce Earl Ward were granted stays based on their mental health. The attorney for Davis and Ward claims they were denied access to independent mental health experts. They are currently waiting on a ruling from the Supreme Court regarding defendant access to independent mental health experts.

Finally, Jason Farrell McGehee received a preliminary stay based on the state parole board’s suggestion that Governor Hutchinson grant him clemency. This puts his potential execution date after the drugs have expired and would require another order.

The four stays granted reflect narrow arguments tailored to the specific merits of each case and rely heavily on developments in the legal field. Two are waiting on a new ruling from the Supreme Court and one is attempting to bring new DNA evidence to bear, underscoring the changing legal landscape.

This change will have several implications. First, as courts have shown their reluctance to moderate how lethal drugs are acquired and their efficacy in executing prisoners, there will be increased use of lethal injections across the United States. Second, there will be less use of the Eighth Amendment as a strategy as the courts seem far less sympathetic to the pain prisoners may suffer during execution. Finally, the debate between pro- and anti-death penalty advocates will intensify as the number of executions increases and reignites the death penalty as a new front in the culture wars.

— Zachary Leibman is a Systemic Justice Fellow for the 2016 – 2017 academic year

Harvard Kennedy School Conference on Poverty and Inequality

The Systemic Justice Project is co-sponsoring the Harvard Kennedy School Conference on Poverty and Inequality. For more information, see below:

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On behalf of our conference planning committee, we’d like to invite you to the Conference on Poverty & Inequality. In light of the recent election, our theme is Tackling Poverty & Inequality under a Trump Presidency. We hope to highlight the deep economic anxieties that surfaced across the US in the 2016 election. The conference is Saturday, February 25 at the Harvard Kennedy School of Government. Registration is now open ($15 for students; $30 for non-students). Please register, connect with us on Facebook, and visit our website for more information.

Speeches and panel discussions will cover a range of topics, like affordable housing, early childhood development, K-12 education, and extreme poverty/joblessness.We have some exceptional speakers confirmed, including:

  • Dennis Kucinich, Progressive Advocate, Former Eight-Term US Congressman, and Two-Time Candidate in the Democratic Presidential Primary
  • Daniel Gillion, University of Pennsylvania Presidential Associate Professor and author of Governing with Words: The Political Dialogue on Race, Public Policy, and Inequality in America
  • Portia Wu, Former Assistant Secretary of ETA at the US Department of Labor
  • David Ellwood, Former Kennedy School Dean and Former Co-Chair of President Clinton’s Working Group on Welfare Reform
  • Melissa Boteach, Director of the Poverty to Prosperity Program at the Center for American Progress
  • Robert Doar, Morgridge Fellow in Poverty Studies at the American Enterprise Institute
  • Hanna Skandera, New Mexico Education Secretary
  • Thomas Kochan, MIT Professor and Co-Director of MIT Sloan’s Institute for Work and Employment Research
  • Maria Mossaides, Child Advocate of the Commonwealth of Massachusetts
  • Carol C. Buris, Executive Director of the Network for Public Education Foundation
  • Amy Glasmeier, MIT Economist & Creator of the Living Wage Calculator
  • William Beardslee, Distinguished Gardner/Monks Professor of Child Psychiatry at Harvard Medical School and Director of the Baer Prevention Initiatives, Department of Psychiatry, Children’s Hospital Boston

If you have any questions or would like your student group recognized in our program materials for “joining the conversation,” please email Ben Mays (Conference Co-Chair) at Ben_Mays@hks17.harvard.edu. We look forward to seeing you there!