Southern-State Legislative Lessons from Virginia’s Abolition of the Death Penalty

Aidan C. Williams

The lives of Virginia’s last two death-row inmates were recently saved by the legal system—but not quite in the typical way for Southern states. With the stroke of a pen, Governor Ralph Northam signed Senate Bill 1165 at Greensville Correctional Center,[1] ending capital punishment altogether in the state that has executed the most prisoners since America’s colonial days.[2] The new law also commuted the sentences of the two aforementioned inmates, Anthony Juniper and Thomas Porter.[3]

As opponents of the death penalty note, capital punishment is faulty for a number of reasons. The penalty is not widely effective at deterring violent crime and remains financially costly.[4]  Yet, worst of all, capital punishment has been unfairly applied across racial lines, which hopefully explains its decreasing support in public opinion.[5]

Recognizing these historic errors, the Virginia General Assembly passed Senate Bill 1165, abolishing the state’s death penalty. Many in the national news media point to the new Democratic majorities in the state legislature as the reason for the Bill’s passage,[6] which is, of course, the reason the Bill ultimately arrived at the Governor’s desk. Interestingly, however, Senate Bill 1165 was first introduced by a Democrat and Republican duo, Virginia state Senators Scott Surovell and Bill Stanley.[7] Eventually though, the legislation was backed by almost no Republicans—including an abstention from its original G.O.P. co-patron, Senator Stanley, himself.[8]

The media has also rightfully pointed out that Virginia is the first Southern state to abolish the death penalty, but will the legislative strategy that worked in the Commonwealth carry the day in other Southern states?

When Senate Bill 1165 was introduced, Senator Stanley’s decision to join the effort to end capital punishment in Virginia was encouraging. After all, having a conservative Republican on board would not only help the legislation advance in the Commonwealth, but would also serve as a model for other Southern states that do not have Democratic majorities in their legislatures. However, Senator Stanley’s ultimate abstention came as a result of Democrats’ inability to accept a proposal that would prohibit parole eligibility following commutation for those convicted of murder.[9] This failure to compromise ultimately led to Senate Bill 1165 being an almost exclusively Democratic legislative achievement—but at what regional cost?

Modern use of the death penalty is still most pervasive in the South,[10] but it is only likely to be abolished there with bipartisan legislative support. Since 1976, the South has executed 1250 people, compared to 191 in the Midwest, 87 in the West, 4 in the Northeast, and 570 in Texas.[11] Yet, apart from Virginia, state legislatures in the South are all controlled by Republicans.[12] Thus, if capital punishment opponents want to secure more legislative victories, they are going to have to either flip legislative bodies altogether (a daunting task), or work with Republicans like Senator Stanley to get it done. As Virginia’s recent story demonstrates, abolishing the death penalty with G.O.P. support might mean compromise, but at the same time, it could coalesce a broader, bipartisan coalition against the faulty practice. After all, not every Southern state has seen the type of partisan shifting that Virginia has in recent years.

Republican Senator Stanley, a defense lawyer, stated his opposition to capital punishment is rooted in his pro-life stance and his qualms with the “irrefutable proof that our criminal justice system has sentenced innocent people to die.”[13] He certainly cannot be the only G.O.P. legislator in the South who feels this way.

Death penalty opponents have every reason to celebrate Virginia’s recent abolition of capital punishment—apart from Texas, the Commonwealth has executed more inmates than any other state in modern United States history.[14] However, if that success is to extend more broadly across the South, perhaps future legislative vehicles to abolish the death penalty should start—and end—with wider bipartisan support.


[1] Denise Lavoie, Virginia with 2nd-Most Executions, Outlaws Death Penalty, Associated Press (Mar. 24, 2021), https://apnews.com/article/virginia-to-end-death-penalty-ralph-northam-0a5b51f2e4458a0600bce6b75e6389bd.

[2] Peter Dujardin, Since 1608, Virginia has Executed More People Than Any Other State. It May Now Abolish the Death Penalty, The Virginian-Pilot (Jan. 31, 2021), https://www.pilotonline.com/news/crime/dp-nw-virginia-death-penalty-20210131-gs3b423zcjchddnfzpmfgxuoea-story.html.

[3] Lavoie, supra note 1.

[4] Id.

[5] Facts About the Death Penalty, Death Penalty Info. Ctr., https://cdn2.assets-servd.host/alike-kingfisher/production/documents/pdf/FactSheet.pdf (last updated Mar. 24, 2021).

[6] See, e.g., Lavoie, supra note 1.

[7] S.B. 1165, 2021 Sess. (Va. 2021).

[8] SB 1165 Death Penalty; Abolition of Current Penalty, Va.’s Legis. Info. Sys., https://lis.virginia.gov/cgi-bin/legp604.exe?212+sum+SB1165 (last visited Mar. 30, 2021).

[9] Whittney Evans & David Streever, Lawmakers in Virginia Vote to Abolish the Death Penalty, NPR (Feb. 5, 2021, 3:33 PM), https://www.npr.org/2021/02/05/964514242/lawmakers-in-virginia-vote-to-abolish-the-death-penalty.

[10] See Facts About the Death Penalty, supra note 5.

[11] Id.

[12] State Partisan Composition, Nat’l Conference of State Legislatures, https://www.ncsl.org/research/about-state-legislatures/partisan-composition.aspx (last updated Mar. 16, 2021).

[13] Bill Stanley, Stanley: A Conservative Viewpoint on Ending the Death Penalty, The Roanoke Times (Jan. 31, 2021), https://roanoke.com/opinion/columnists/stanley-a-conservative-viewpoint-on-ending-the-death-penalty/article_4265ef26-60bd-11eb-9160-ff8b81dce4c8.html.

[14] See Lavoie, supra note 1.

Will Texas Plaintiffs’ Claims Against State Energy Provider Be Lights Out?

Lauren Green

A mid-February 2021 winter storm left dozens of Texans dead, millions without power, and nearly 15 million with water issues. The hazardous weather also disrupted medical care and caused widespread property damage.[1] As a result, Texas lawmakers have lobbed criticism at the Public Utility Commission of Texas (“PUC”), the Electric Reliability Council of Texas (“ERCOT”), and the agencies’ board members.[2] On March 3, 2021, ERCOT’s board of directors announced it will terminate its president and CEO.[3] As of this post, seven ERCOT board members have resigned and the sole remaining commissioner of the PUC resigned on March 17, 2021.[4]

Despite Texas lawmakers pointing fingers, ERCOT is ultimately subject to oversight by the PUC and the Texas Legislature.[5] Additionally, Governor Greg Abbott appointed the commissioners of the PUC.[6] The winter storm “exposed problems lawmakers failed to address in previous legislative sessions and showed the vulnerabilities of the state’s natural gas system.”[7] As such, ERCOT is facing a mountain of litigation filed on behalf of Texans.[8] This post discusses those lawsuits and the hurdles plaintiffs may face.

The main hurdle these plaintiffs face is sovereign immunity. In Texas, sovereign immunity deprives a court of subject matter jurisdiction unless the state consents to suit by statute or by legislative resolution.[9] Legislative consent for suit or any other sovereign immunity waiver must be “by clear and unambiguous language.”[10] Because the PUC is a state administrative agency,[11] the agency and its board are likely entitled to sovereign and qualified immunity, and thus shielded from liability in most, if not all, cases related to the winter storm. Since ERCOT is a private corporation, it generally would not be entitled to sovereign immunity.  

However, in September 2020, the Supreme Court of Texas heard oral arguments to determine whether ERCOT can claim governmental immunity despite being organized as a private corporation.[12] While that lawsuit pertains to fraud and breach of fiduciary duty,[13] the Texas Supreme Court’s decision on the immunity issue determines Texans’ ability to bring lawsuits against the energy provider. The Supreme Court is facing pressure to render a decision in light of the lawsuits from the aftermath of the winter storm—a potentially positive development for plaintiffs. Further, there is no guarantee the Texas Supreme Court will affirm the appellate court.

The Texas Court of Appeals for the Fifth District upheld ERCOT’s claim to sovereign immunity.[14] ERCOT’s argument for immunity is that despite the fact that it is not an official government agency, it is a critical part of the electric industry. Further, the Texas Legislature has  “decreed that the PUC, not the courts, decides when and how much money ERCOT spends, how it operates, and whether it has underperformed or abused its power.”[15] ERCOT argued that if the corporation has to divert funds to pay judgments, the Texas Legislature’s mission to protect the electric market and its consumers would be thwarted, leaving Texas and its power grid without central management.[16]

If the Texas Supreme Court decides to uphold ERCOT’s sovereign immunity, the plaintiff’s claims are not doomed. Statutes and regulations may restrict that immunity, allowing the lawsuits to go forward.[17]  However, if that immunity is not restricted, plaintiffs may still bring lawsuits against other parties like utility companies, power plants, and windmill manufacturers.[18] Torts attorneys expect lawsuits against ERCOT in the thousands and there is potential for class actions.[19] Lawyers also expect to see a wide array of claims including wrongful death, severe personal injury, property damage such as busted water pipes, and business interruption cases.[20] While the Supreme Court affirming ERCOT’s immunity is not ideal for plaintiffs, the ruling would not put an end to litigation related to the storm. These lawsuits will continue to develop in the coming months, and Texas attorneys and litigants should pay close attention to the state’s high court.


[1] Mitchell Ferman, Winter storm could cost Texas more money than any disaster in state history, Texas Tribune (Feb. 25, 2021, 4:00 AM), https://www.texastribune.org/2021/02/25/texas-winter-storm-cost-budget; Clark Mindock, ERCOT Hit With $100M Suit Over Outage Related Death, Law360 (Mar. 1, 2021, 9:49 AM), https://www.law360.com/articles/1357330/ercot-hit-with-100m-suit-over-outage-related-death.

[2] Mitchell Ferman, Another ERCOT board member resigns as lawmakers criticize power grid operator for massive electricity outages, Texas Tribune (Feb. 26, 2021, 1:00 PM), https://www.texastribune.org/2021/02/26/ercot-resignation-power-outages.

[3] ERCOT Chief Canned In Wake Of Texas Winter Storm Outages, Law360 (Mar. 3, 2021, 11:50 PM), https://www.law360.com/texas/articles/1361248/ercot-chief-canned-in-wake-of-texas-winter-storm-outages?nl_pk=d4d1b6d1-e90e-457b-b8c8-3714b4237afa&utm_source=newsletter&utm_medium=email&utm_campaign=texas.

[4] Erin Douglas and Patrick Svitek, Public Utility Commission chair resigns after Texas officials criticize management of power outages, Texas Tribune (Mar. 1, 2021, 5:34 AM), https://www.texastribune.org/2021/03/01/texas-power-outages-public-utility-commission-resigns/; Katie Buehler, Remaining Texas Utility Commissioner Resigns Amid Criticism, Law360 (Mar. 17, 2021, 9:16 PM), https://www.law360.com/texas/articles/1365977/remaining-texas-utility-commissioner-resigns-amid-criticism?nl_pk=d4d1b6d1-e90e-457b-b8c8-3714b4237afa&utm_source=newsletter&utm_medium=email&utm_campaign=texas..

[5] News Release, ERCOT Board of Directors elects new Chair and Vice-Chair (Feb. 9, 2021), http://www.ercot.com/news/releases/show/224860.

[6] Douglas and Svitek, supra note 4.

[7] Ferman, supra note 1.

[8] Mindock, supra note 1.

[9] Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 223 (Tex. 2004); Missouri Pac. R. Co. v. Brownsville Nav. Dist., 453 S.W.2d 812, 814 (Tex. 1970).

[10] Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 177 (Tex. 1994); Duhart v. State, 610 S.W.2d 740, 742 (Tex. 1980).

[11]  See Tex. Admin. Code, Title 16, Part. II. This is also why plaintiffs’ lawsuits against individual lawmakers would typically fail; lawmakers are entitled to official/qualified immunity when acting within the scope of their lawmaking capacities. See Joshua A. Skinner et al., Governmental Immunity, Individual Rights & Responsibilities Program 6 (June 10, 2010).

[12] Katie Buehler, Texas Justices Question Grid Operator’s Immunity Status, Law360 (Sept. 15, 2020, 7:58 PM), https://www.law360.com/articles/1309857/texas-justices-question-grid-operator-s-immunity-status.

[13] Paul Takahashi, Texas Supreme Court to decide if ERCOT is immune from storm lawsuits, Houston Chronicle (Feb. 22, 2021, 11:05 AM), https://www.houstonchronicle.com/business/energy/article/Texas-Supreme-Court-to-decide-whether-ERCOT-is-15968323.php.

[14] Elec. Reliability Council of Tex., Inc. v. Panda Power Generation Infrastructure Fund, LLC, 552 S.W.3d 297, 319 (Tex.App.—Dallas 2018).

[15] Id. at 314.

[16] Id.

[17] Y. Peter Kang, ERCOT Ruling Won’t Stop Suits Over Texas Power Outages, Law360 (Feb. 26, 2021, 5:20 PM), https://www.law360.com/texas/articles/1359223/ercot-ruling-won-t-stop-suits-over-texas-power-outages.

[18] Id.

[19] Kang, supra note 17.

[20] Id.

The Continued Need for Bail Reform in North Carolina

Jessica Wollum

About a year ago, in the spring and summer of 2020, the spotlight was on bail funds as a practical way to fight racism and injustice in America. Social media was filled with links to statewide and local community funds. Now? Crickets. But the issues surrounding bail have not disappeared just because the social media spotlight has dimmed.  

Cash bail, while intended to ensure court appearances and prevent crimes, is fraught with problems. First, jailing someone accused of a crime seems antithetical to the principle of being innocent until proven guilty. Second, cash bail has disproportionate effects on minorities and poor people.[1] Third, using cash bail can cause people to lose their families, homes, or even custody of their children.[2] While it may seem strange that bail causes such losses, it should not be surprising as people who cannot pay bail lack job and financial security. Once people lose their jobs while they sit in jail, these losses follow.

Even though North Carolina statutes establish a preference for non-monetary pretrial release, “[n]inety-five percent of people in jail before trial in North Carolina are detained on secured bond [money bail].”[3] This means ninety-five percent of people accused of a crime are being detained in prison before they have been found guilty. This statistic may indicate a need to focus not only on statewide statutory changes but also on how statutes are implemented.  It seems that regardless of the law, local judicial officers can find ways to implement cash bail. This presents a problem for North Carolinians, since “studies show that low risk individuals who are detained pretrial are more likely to commit new crimes following release.”[4]

While non-monetary pretrial conditions are the default per NCGS § 15A-534(b), N.C. law gives substantial latitude to judicial officers “to determine the appropriate conditions of pretrial release.”[5] Local districts, per NCGS § 15A-535(a), must create policies for determining pretrial release, but they do not have to require written explanations when judicial officers deviate from a non-monetary condition to a secured bond or house arrest. Also, some localities use bond tables that only consider “the punishment level of the charged offense” to set bail amounts, when state law requires observing many factors to determine bail amounts.[6] Lastly, N.C. statutes do not require a formal bond review process for people charged with misdemeanors.

However, unlike with misdemeanors, NCGS §15A-534(d) does provide more guidance on pretrial detention and release for defendants who were on probation for a prior offense and committed a felony. The judicial officer must determine if the defendant poses a danger to the public, his determination must be written, and a non-monetary condition must be used if the defendant is not a danger. If the officer lacks information to assess danger, the defendant must have a first appearance within ninety-six hours of his arrest to determine his pretrial conditions. If such guidance is available for felonies committed while on probation, why is it not available for misdemeanors?

Even in the absence of statewide reform, local reforms are still happening across North Carolina. As recently as this January, reports on Judicial Districts 21’s and 2’s reforms show “promising results.”[7] Furthermore, Mecklenburg County has been a leader for years in addressing pretrial release and detention. In Mecklenburg County, the judge must first decide if someone needs to be placed in jail prior to trial. Only if the answer is ‘yes’ do judges then set bail. They also use an evidence-based pretrial assessment when assessing people’s likelihood of appearing and their potential to re-offend.[8] Likewise, judicial officers must provide written explanations when they choose money bail or house arrest.[9] The outcomes have been positive. Between 2009-2015, the jail population decreased 43%, public safety rates increased to 93%, court appearance rates increased to 98%, and the use of unsecured bonds increased from 5% to 28%.[10]

There are also pilot programs in other districts, such as the Judicial District 30B pilot that started in 2019.[11] This district implemented five reforms: (1) a decision-making framework to determine pretrial release conditions; (2) use of first appearance proceedings; (3) early involvement of counsel at pretrial proceedings; (4) increased use of summons instead of arrest; and (5) increased use of citations instead of arrest. The second reform ensures that misdemeanor defendants will not “spend days or weeks in custody on a secured bond imposed by a magistrate before a judge ever reviewed their conditions of release,” since state law does not require first appearance proceedings for misdemeanors.[12] When bond is used, it must be set based on individual circumstances and not on a bond schedule.[13] District 30B has seen encouraging results with approximately an 18% drop in the use of money bail, approximately a 17% increase in non-financial conditions, steady recidivism rates, and a minimal 1% increase in new charges during pretrial release or failure to appear at court.[14]

While these reforms are directed at government officials, members of the community can also participate in bail reforms that tangibly help people. The Orange County Bail/Bond Justice Project provides a model for other counties about how to get involved. The project is a faith-based coalition dedicated to two goals: changing unjust bail practices and providing direct support to people charged with crimes.[15] This project is more than a bail fund. It is a four-part project that organizes court observations, assesses data “to document equity issues in setting bail/bond amount,” develops a bail fund, and educates the community.[16] The Project even helps defendants get to trial by sending text reminders for court dates and providing transportation.

It is time to turn the spotlight back on bail reform, but this time in an enduring way beyond a one-time donation to a bail fund. Government-led reforms are essential, but community-led reforms can also bring the issue to the government’s attention by collecting data while also directly assisting those in need right now.


[1] Colin Doyle et al., Bail Reform: A Guide for State and Local Policymakers, Crim. Just. Pol’y Program: Harv. L. Sch., 1, 7 (Feb. 2019), https://university.pretrial.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=9a804d1d-f9be-e0f0-b7cd-cf487ec70339&forceDialog=0.

[2] Id. at 8.

[3] North Carolina Voters Want a Commonsense Approach to Pretrial Justice, Pretrial Just. Inst. 1, 2 (Dec. 12, 2018), https://university.pretrial.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=844a230e-099b-e377-1140-9bdc23927472&forceDialog=0.

[4] Jessica Smith, Bail Reform in North Carolina, UNC Sch. of Gov’t (Feb. 14., 2019, 6:44 AM), https://nccriminallaw.sog.unc.edu/bail-reform-in-north-carolina-why-the-interest/.

[5] Jessica Smith, NC Superior Court Judges’ Benchbook, UNC Sch. of Gov’t, 1, 18 (Apr. 2015),https://benchbook.sog.unc.edu/criminal/pretrial-release.

[6] Jessica Smith & W.R. Kenan, Jr., Revising Local Bail Policy: Issues to Consider, 1, 2(Jan. 2020),https://cjil.sog.unc.edu/files/2020/01/Recommendations-for-Local-Bail-Policy-Revisions.pdf

[7] Jessica Smith, Promising Results in Two New Bail Reform Evaluation Reports, UNC Sch. of Gov’t (Jan. 6, 2021, 8:39 PM),https://nccriminallaw.sog.unc.edu/promising-results-in-two-new-bail-reform-evaluation-reports/.

[8] Teo Armus, Mecklenburg County Has a New Bail Policy: But Does it Go Too Far- Or Not Far Enough?, Charlotte Observer (Mar. 20, 2019, 7:39 PM),  https://www.charlotteobserver.com/news/local/crime/article227109254.html.; Doyle et al., supra note 1, at 4.

[9] Bail Policy for Twenty-Sixth Judicial District, N.C. Cts. (Jan. 23, 2019),https://www.nccourts.gov/assets/documents/local-rules-forms/Bail%20Policy.pdf?Ilxz6xa_CGHzzK9zpyEijZao9IRVZURc.

[10] North Carolina Voters Want a Commonsense Approach to Pretrial Justice, Pretrial Just. Inst. 1, 4 (Dec. 12, 2018), https://university.pretrial.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=844a230e-099b-e377-1140-9bdc23927472&forceDialog=0.

[11] Jessica Smith, Results from Empirical Evaluation of NC Judicial District 30B Bail Project, UNC Sch. of Gov’t (Apr. 22, 2020, 9:52 AM), https://nccriminallaw.sog.unc.edu/results-from-empirical-evaluation-of-nc-judicial-district-30b-bail-project/.

[12] Id.

[13] In the Matter of Promulgating Local Rules Relating to Bail and Pretrial Release for Judicial District 30B, N.C. Cts. (Dec. 28, 2018),https://www.nccourts.gov/assets/documents/local-rules-forms/Haywood%20and%20Jackson%20Bail%20Policy%202019.pdf?SwjMqg9_VKL0GjVCyNq4egpwSGqrND96.

[14] Smith, supra, note 11.

[15] What We Do, Orange Cty. Bail/Bond Just. Project,https://ocbailbondjustice.org/what-we-do/ (last visited Mar. 4, 2021).

[16] Id.

Criminality Should Not Affect COVID-19 Vaccination Access

Lauren Green

Advocates and scientists have urged vaccinating vulnerable individuals first when creating COVID-19 vaccine rollout plans.[1] According to a report from the National Commission on COVID-19 and Criminal Justice, prisons had almost four times more confirmed coronavirus cases and twice as many deaths as the general public.[2] One of the greatest challenges of reducing the spread of COVID-19 in detention centers is the inability of incarcerated people to maintain a safe social distance because of their confinement in small shared spaces.[3] This challenge is the same rationale for including long-term nursing home residents and workers in the first phase of distribution plans.[4] But regarding incarcerated individuals, some officials turned vaccine distribution into a criminality issue, arguing that incarcerated individuals do not deserve to receive the vaccine before those who have not committed crimes.[5]

This posturing, however, violates the states’ obligation to protect the health of those confined in their detention centers—being incarcerated or detained should not be synonymous with being left vulnerable to COVID-19. The Johns Hopkins Center for Health Security notes ‘[t]here is a legal and moral duty to provide healthcare to incarcerated individuals” because they are “both at high risk of infection, transmission, and poor outcomes because of comorbidities and poor healthcare access.”[6] Likewise, the American Medical Association “calls for all correctional and immigrant detention facilities . . . [to] be prioritized in receiving access to safe, effective COVID-19 vaccines in the initial phases of distribution.”[7]

Despite overwhelming scientific evidence that incarcerated populations should be prioritized, only five states—Connecticut, Delaware, Maryland, Nebraska and New Mexico—specifically include incarcerated people in the first phase of COVID-19 vaccine distribution plans.[8] North Carolina, meanwhile, includes incarcerated individuals who are older and have other health conditions in phase one or two of its plan.[9] However, most states’ plans are unclear and unspecific regarding whether incarcerated individuals are included in the “critical populations” receiving the vaccine in phase one—some states specifically exclude the incarcerated from plans.[10]

Even if one can get past the hypocrisy and immorality of subjecting incarcerated individuals to uncontrolled outbreaks of COVID-19 simply because of the commission of a crime, there is no scientific basis to do so. In fact, as discussed above, the science points to the contrary—the incarcerated should be amongst the first to be vaccinated. Incarcerated individuals and detention center personnel are under similar circumstances as long-term nursing home residents and health care workers.[11] Each population constitutes a congregate setting with the greatest infection risk and further transmission.[12] The only difference is that one of those populations has committed a crime (excluding the large portion of incarcerated individuals who have not been found guilty of a crime and are only confined because they cannot afford bail). The same rationale for prioritizing vaccinating long-term nursing home residents and health care workers should apply to incarcerated individuals on a moral ground, but also if this country is serious about curtailing the spread of COVID-19. In addition to inmates and detainees, COVID-19 poses a serious risk to detention center staff and visitors[13]—likely how the virus entered detention centers in the first place. When staff and visitors are exposed to the virus they act as transmitters between the detention center and their communities.[14] Thus, vaccination of the incarcerated is essential because COVID-19 cannot be curtailed if the incarcerated are not treated and vaccinated. Detainees will continue to transmit the virus to those who come though the detention center and perpetuate the high risk of transmission to communities outside of the detention center. Until the incarcerated are vaccinated, this transmission cycle will likely continue and COVID-19 will continue to spread through detention centers and nearby communities.

The inclusion of incarcerated individuals in early phases of vaccine distribution is critical. Not only does basing access to the vaccine on criminality violate the state’s duty to protect the health of people in its care, but excluding these individuals fails to slow the spread of the virus in the places where it is poised to spread the fastest. Unless the United States prioritizes vaccines for incarcerated people, COVID-19 will continue to spread through jails, prisons, and detention centers.[15] The staff who go in and out of the facilities will carry the deadly virus home to their communities, causing it to spread beyond jail and prison walls.[16] Deprioritizing incarcerated individuals solely because they committed a crime is a moral and public health crisis.


[1] Abby Goodnough and Jan Hoffman, Frontline Workers and People Over 74 Should Get Shots Next, C.D.C. Panel Says, NY Times (Dec. 20, 2020), https://www.nytimes.com/2020/12/20/health/covid-vaccine-first-elderly-workers.html.

[2] Kevin T. Schnepel, COVID-19 in U.S. State and Federal Prisons: December 2020 Update, Council on Criminal Justice 3 (2020).

[3] Id.

[4] Sarah Martinson, Virus Death Rates Make Prison Vaccine Plans A Justice Issue, Law360 (Dec. 20, 2020, 8:02 PM), https://www.law360.com/access-to-justice/articles/1336988/virus-death-rates-make-prison-vaccine-plans-a-justice-issue?nl_pk=d4d1b6d1-e90e-457b-b8c8-3714b4237afa&utm_source=newsletter&utm_medium=email&utm_campaign=access-to-justice&read_more=1.

[5] Id.

[6] Eric Toner et al., Interim Framework for COVID-19 Vaccine Allocation and Distribution in the United States, Johns Hopkins Center for Health Security 32 (2020).

[7] Press Release, American Medical Association, AMA policy calls for more COVID-19 prevention for congregate settings (Nov. 17, 2020) (on file with AMA press center) (emphasis added).

[8] Katie Rose Quandt, Incarcerated people and corrections staff should be prioritized in COVID-19 vaccination plans, Prison Policy Initiative (Dec. 8, 2020), https://www.prisonpolicy.org/blog/2020/12/08/covid-vaccination-plans/.

[9] Id.

[10] Id.

[11] Toner et al., at 20.

[12] Id.

[13] Martinson, supra note 4.

[14] Id.

[15] Nicholas Turner and Erica Bryant, States Should Prioritize Incarcerated People for COVID-19 Vaccine Distribution, Vera Institute of Justice (Dec. 3, 2020), https://www.vera.org/blog/states-should-prioritize-incarcerated-people-for-covid-19-vaccine-distribution.

[16] Id.

Transgender Women in Sports: Sexual Difference and Fairness

Seth Barry-Hinton

After the Supreme Court’s decision in Bostock v. Clayton County, which held that Title VII of the 1964 Civil Rights Act protects transgender people from workplace discrimination, the political battles and culture war around transgender people will likely shift onto new terrain. One of these battles is expected to center on the rights of transgender people to participate in sports in the gender category they identify with at the high school, collegiate, and professional levels. Recently, Representatives Tulsi Gabbard and Markwayne Mullin introduced a bill intended to prevent transgender women and girls from participating in women’s sports, using the language of Title IX.[1] This follows a transgender athlete’s lawsuit challenging an Idaho law barring trans girls from participation, and a group of cisgender athletes’ lawsuit against a Connecticut school district allowing trans girls to participate.[2] These battles are the expression of a deeper conflict that extends beyond civil rights or sports law, interrogating the meaning and significance of sexual difference.

This conflict has generated an interesting coalition of anti-transgender forces: conservative, evangelical Christians like the Heritage Foundation, who generally oppose expanding LBGTQ+ rights, have allied with radical feminist organizations, such as the Women’s Liberation Front (WoLF), who specifically view expanding transgender rights as a threat to the rights of cisgender women and girls.[3]

This coalition relies on two primary arguments. The first is an argument based on statutory intent. The meaning of “sex” in Title IX was intended to be a binary biological division and would not include people who live and are understood as a gender different from the one they were assigned at birth (or, for that matter, intersex people, who might identify as any particular gender but have a “mix” of primary and secondary sex characteristics). Gabbard, in her explanation of her proposed bill, relied heavily on this “original intent” claim. It is worth noting that the anti-trans coalition is clearly not relying on a plain-meaning argument in this view; one can easily contrast Justice Gorsuch’s interpretation of Title VII in Bostock, which focuses strictly on the practical use and definition of the word “sex.”

The other key argument is one from fairness, which was raised in both of the aforementioned lawsuits and in Gabbard and Mullin’s statements on their proposed legislation. The anti-trans coalition argues that being “assigned male at birth” (AMAB), or having a testosterone-based hormone profile, innately leads to athletic advantage.[4] “Females” are inherently weaker and slower than “males,” goes the claim. Allowing transfeminine athletes to participate alongside cisgender women would therefore rob the latter of their ability to excel in sports, on the assumption that the former would naturally rise to the top. An alternative version of this argument is that deceptive men will exploit self-identification policies to more easily accrue the trophies, accolades, and opportunities that sports achievements provide.

This language of fairness and equality might seem reasonable under “commonsense” assumptions about sexual difference, but it falls flat on both a theoretical and practical level. I assert that even without delving into gender theory, philosophy of science, and empirical evaluations of sexual difference—which has been done extensively elsewhere—this argument fails on its own merits.[5]

First, there are different kinds of fairness when it comes to sport. While a level playing field for publicly performing personal excellence might be one way to frame sport, this ignores many of the other possible functions of sport. Lindsay Hecox, the transgender plaintiff in the Idaho case, puts it well: “I, like all athletes, participate in sports for the same reasons as my peers: to challenge myself, to improve my fitness, to engage socially, and to be a part of a team.”[6] Thus, the individualist and instrumentalist view, that sport is a way of achieving professional success and public accolades, is only one possible view among many.

Furthermore, LGBTQ+ participation in sports is extremely low as a result of bullying and discrimination.[7] This demonstrates two things. First, it undermines the notion that being transgender is some privileged status undeserving of protection. Second, it illustrates that there may be other fairness concerns at play besides the recognition of cisgender women’s athletic achievement (assuming that these interests are actually conflictual, which they may not be). If the value of sports is very high, it may be that encouraging greater athletic participation by transgender and nonbinary people, as well as LGBTQ+ people more broadly, is worth whatever marginal costs might occur for specific cisgender individuals.

The anti-trans argument also appears weaker when considering the broader scope of current transgender rights debates. This same coalition of conservatives and anti-trans feminists seeks to deny minors access to gender-affirming medical care, such as puberty blockers, which would have a significant impact on athletic performance under the coalition’s own assumptions about the importance of sexual difference.[8] In short, anti-trans activists seek to ensure that transgender girls go through a testosterone-based puberty, and then limit their athletic possibilities and life choices on the grounds that they have undergone a testosterone-based puberty.

These sorts of inconsistencies, and the narrow view of fairness that the coalition prioritizes, make more sense when examined as panic rather than justified legal concern. In actuality, we have seen a trickle of high-profile cases where transgender athletes outcompeted cisgender ones, not a deluge. Transgender people occupy such a narrow and marginalized subset of the population that the apparent primary concerns – overall fairness and recognizing cis women’s athletic achievements – quickly fall flat.


[1] James Walker, Tulsi Gabbard Pushes Bill to Block Transgender Girls from Women’s Sports, Newsweek (Dec. 11, 2020, 7:57 AM), https://www.newsweek.com/tulsi-gabbard-bill-block-transgender-girls-women-sports-1554068.

[2] Gillian R. Brassil and Jeré Longman, Who Should Compete in Women’s Sports? There Are ‘Two Almost Irreconcilable Positions’, The New York Times (Aug. 19, 2020), https://www.nytimes.com/2020/08/18/sports/transgender-athletes-womens-sports-idaho.html.

[3] Heron Greenesmith, A Room of Their Own: How Anti-Trans Feminists Are Complicit in Christian Right Anti-Trans Advocacy, Political Research Associates (July 14, 2020), https://www.politicalresearch.org/2020/07/14/room-their-own.

[4] Brianna January and Brennan Suen, As Trans Americans Face Record Violence, Right-Wing Media Have Been Flooded with Stories Attacking Trans Athletes, Media Matters for America (Oct. 30, 2019, 10:07 AM), https://www.mediamatters.org/facebook/trans-americans-face-record-violence-right-wing-media-have-been-flooded-stories-attacking.

[5] Iris Marion Young, Throwing Like a Girl: A Phenomenology of Feminine Body Comportment Motility and Spatiality, 3 Human Studies 137 (1980); Katherine Kornei, This Scientist Is Racing to Discover How Gender Transitions Alter Athletic Performance, Including Her Own, Science (Jul. 25, 2018, 9:00 AM), https://www.sciencemag.org/news/2018/07/scientist-racing-discover-how-gender-transitions-alter-athletic-performance-including.

[6] Lindsay Hecox, Anti-Trans Laws are Preventing Trans Women from Playing on Women’s Sports Teams, Teen Vogue (May 14, 2020), https://www.teenvogue.com/story/anti-trans-law-women-sports.

[7] Research Brief: LGBTQ Youth Sports Participation, The Trevor Project (June 23, 2020), https://www.thetrevorproject.org/2020/06/23/research-brief-lgbtq-youth-sports-participation/.

[8] Katelyn Burns, Why Republicans Are Suddenly in a Rush to Regulate Every Trans Kid’s Puberty, Vox (Jan. 29, 2020, 5:57 PM), https://www.vox.com/identities/2020/1/29/21083505/transgender-kids-legislation-puberty-blockers.

Operation Warp Speed: America’s Desperate Search for a COVID-19 Vaccine

Grace Ketron

COVID-19 has created a new world filled with cloth masks and hand sanitizer. In March, conversations began revolving around the availability of hospital beds, respirators, and toilet paper. As researchers persistently combated this new strain of coronavirus, the world held its breath, waiting on the edge of its seat for the release of an accessible and affordable COVID-19 vaccine. Now, the moment the world has waited for is here: potential vaccines are ready for FDA approval, with a vaccine created by Pfizer leading the charge.

Typically, American vaccines take years or even decades to effectively develop. With COVID-19 cases still rising, the FDA has recognized the importance of developing a vaccine as quickly and safely as possible. The FDA Commissioner and the Director of the Center for Biologics Evaluation and Research explained, “We are committed to expediting the development of COVID-19 vaccines, but not at the expense of sound science and decision making. We will not jeopardize the public’s trust in our science-based, independent review of these or any vaccines. There’s too much at stake.”[1] To that end, federal agencies, like the CDC and HHS, created Operation Warp Speed“to produce and deliver 300 million doses of safe and effective” COVID-19 vaccines to Americans by January 2021.[2] In order for Pfizer’s vaccine to become widely accessible, three thingsmust happen in the next few weeks: (1) the FDA must grant an Emergency Use Authorization; (2) state governments must determine who will receive the vaccine first; and (3) the federal government must determine whether the public will pay for the vaccines.

First, the FDA must grant Emergency Use Authorization for Pfizer’s vaccine. The federal government began regulating American drugs in 1902 with the Biologics Control Act.[3] By establishing what later became the National Institutes of Health, the federal government gave itself the power to control how vaccines were created. In 1972, the FDA assumed responsibility for controlling vaccine testing in the United States. Today, Section 564 of the Federal Food, Drug, and Cosmetic Act (FD&C Act) grants the FDA Commissioner the authority to enact Emergency Use Authorizations that “allow unapproved medical products or unapproved uses of approved medical products” during national health emergencies.[4] In October, the FDA Commissioner determined that Emergency Use Authorizations should apply during the COVID-19 pandemic. Now, if and when the FDA Commissioner initiates an Emergency Use Authorization in the next few weeks, Pfizer can begin sending a small number of doses to hospitals and pharmacies around the country. The FDA plans to release its decision about Pfizer’s vaccine on December 10.[5]

Second, although approving vaccines during emergency health crises is an issue for federal agencies, state governments decide which Americans will receive these vaccinations first.[6] Pfizer estimated that it would make 50 million doses of its vaccine during 2020, but Pfizer has locations in both Michigan and Belgium.[7] Because Pfizer plans to split vaccines between countries, Americans likely have access to 25 million vaccine doses. While this initially sounds like quite an impressive number, one full vaccination requires two doses per person, so that leaves 12.5 million vaccines available for Americans during the remainder of 2020. To help states decide who to vaccinate first, the National Academies of Science, Engineering, and Medicine guides the Advisory Committee on Immunization Practices.[8]  In turn, the Advisory Committee speaks with the CDC, who then discusses options with state officials. Hospital workers and immunocompromised individuals will likely be the first to receive the COVID-19 vaccine.[9]

Third, the federal government must determine whether the public will pay to be vaccinated. While Americans are often required to pay for vaccines not covered by insurance, such as flu shots, the current national pandemic has altered cost analyses for COVID-19 vaccines. According to the CDC’s website, COVID-19 vaccines will be free for all Americans, although vaccine providers retain the ability to charge administration fees.[10] Essentially, the vaccines themselves are free to the public, but individual vaccine providers may charge additional fees that will be paid by insurance companies or the Health Resources and Services Administration’s Provider Relief Fund. By predominantly using taxes to fund vaccine dispersal, the federal government can ensure that everyone has access to the vaccine over the next few years. Otherwise, many Americans affected by COVID-19 would be unable to pay for an expensive vaccine.

In sum, federal agencies like the CDC and HHS are facing unprecedented challenges. They constantly engage in precarious balancing acts that simultaneously aim to save lives, reduce healthcare costs, and develop effective vaccines as quickly as possible. As specific COVID-19 vaccines receive Emergency Use Authorization from the FDA, federal agencies must offer widespread vaccinations without compromising drug testing mechanisms in place since 1902. New testing challenges will arise as federal agencies work with other countries that have developed vaccines. As we continue fighting COVID-19, federal agencies must determine whether foreign companies will be held to the same testing standards as American companies. Although Pfizer’s request for Emergency Use Authorization is a step in the right direction, stringent vaccine protocols will ultimately help Americans combat COVID-19.


[1] COVID-19 Vaccines, FDA (last updated Nov. 20, 2020), https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-covid-19/covid-19-vaccines.

[2] Fact Sheet: Explaining Operation Warp Speed, HHS (last updated Nov. 20, 2020),  https://www.hhs.gov/coronavirus/explaining-operation-warp-speed/index.html#:~:text=Operation%20Warp%20Speed’s%20goal%20is,and%20diagnostics%20(collectively%20known%20as.

[3] Linda Bren, The Road to the Biotech Revolution: Highlights of 100 Years of Biologics Regulation, FDA Consumer Magazine, Centennial Edition (Jan.-Feb. 2006), https://www.fda.gov/files/about%20fda/published/The-Road-to-the-Biotech-Revolution–Highlights-of-100-Years-of-Biologics-Regulation.pdf.

[4] Emergency Use Authorization, FDA (last updated Nov. 23, 2020), https://www.fda.gov/emergency-preparedness-and-response/mcm-legal-regulatory-and-policy-framework/emergency-use-authorization.

[5] Coronavirus (COVID-19) Update: FDA Announces Advisory Committee Meeting to Discuss COVID-19 Vaccine Candidate, FDA (last updated Nov. 20, 2020), https://www.fda.gov/news-events/press-announcements/coronavirus-covid-19-update-fda-announces-advisory-committee-meeting-discuss-covid-19-vaccine.

[6] Rebecca Robbins and David Gelles, How Pfizer Plans to Distribute Its Vaccine (It’s Complicated), New York Times (last updated Nov. 20, 2020), https://www.nytimes.com/2020/11/12/business/pfizer-covid-vaccine-coronavirus.html.

[7] Id.

[8] 8 Things to Know about Vaccine Planning, CDC (last updated Nov. 20, 2020), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/8-things.html.

[9] Robbins & Gelles, supra note 6.  

[10] 8 Things to Know about Vaccine Planning, supra note 8.

Partial Housing Cost Forgiveness: Spreading the Cost of the Housing Repercussions of COVID-19

Isaiah McKinney

The COVID-19 pandemic has altered the lives of many Americans this year.  For some people, this change means working from home or attending online classes, while for others, it means losing their jobs and the majority of their income. Without moratoriums like the one issued by the Centers for Disease Control and Prevention on September 1, 2020, many people who have lost their income and are unable to afford their rent would be at risk of eviction.[1] This moratorium freezes rent payments for individuals who expect to earn $99,000 or less in 2020, are unable to pay rent because of the coronavirus, and would likely lose their housing without assistance.[2] While a moratorium through the end of the year can help save people from being displaced, these moratoriums are not without issues.

First, moratoriums do not forgive rent; rather, they toll the payment of it until a later date.[3] Eventually, the moratoriums will be lifted, and a large bill will come due in the form of months of unpaid rent. Because these moratoriums are only granted to people experiencing financial hardship, many of these people will be unable to pay the back rent that they will owe once the moratoriums are lifted. These moratoriums create a situation similar to that of a payday loan. When someone is in such dire straits that they need a payday loan, they likely are not in a sound financial position to be able to pay it back.[4] Thus, rather than solving the problem, these moratoriums are pushing it off until a later date, at which the tenants will likely still be unable to pay their rent.

Second, while an eviction moratorium saves renters’ housing, it can cost landlords theirs. Almost half of all rental properties in the United States are owned by individuals rather than corporations,[5] and these mom and pop landlords rely on rental income to pay both the mortgage on their rental properties and their own living expenses.[6] Landlords are being deprived of their livelihood because others are experiencing the same financial impacts of the virus.[7] As a society, we should not allow the housing burden to be passed on to landlords. However, simply extending moratoriums to landlords is likely to shift the financial burden onto lending institutions, interest rates, and the economy. While there are provisions in the Coronavirus Aid, Relief and Economic Security (CARES) Act to extend payment timelines for homeowners, and other commercial lenders have forbearance programs in place to delay mortgage payments,[8] we do not yet know how deferring payments will impact the financial sector and affect the economy.

There is no simple legal solution for this problem. In a perfect world, everyone would come together to help each other by paying what they can and writing off what is owed to them. Unfortunately, however, policy decisions are not made on the assumption that people will be neighborly. Whether there should be government involvement in the rent payment issue at all is another issue, but if the government is going to address this issue, eviction moratoriums may not be the  right solution. Instead of postponing the inevitable inability to pay rent with eviction moratoriums, perhaps the solution is to spread the costs across all members of the housing market. Rent and mortgages could be forgiven on a percentage basis for both renters and landlords based on an individual’s current income as compared to their pre-COVID-19 income. This way, everyone must still pay, but payments will be adjusted based on the percentages of their normal income that they are currently earning. This would spread the costs across tenants, landlords, and banks. If each party pays and forgives what they are able, everyone will be hurt in some way, but no one will completely bear the costs.

If the government chooses to continue down the path of moratoriums, tenants will still be required to pay back rent eventually. Moreover, due to the current economic climate, even when the economy recovers, tenants and landlords are going to lack the economic capital to pay past rent and mortgage payments.[9] Moratoriums are only postponing these evictions. And then, once evictions start, landlords will be faced with another challenge—struggling to find tenants because many of the people looking for housing will be unable to pay. Eviction moratoriums provide short term relief, but they also increase the consequences later down the road. Rather than continuing moratoriums, it would be more efficient and helpful to forgive rent and mortgages on a percentile basis, so no one loses their housing and the economic impact is borne by everyone, rather than just one segment of the economy.  


[1] Sarah Hansen, Trump Administration Announces New Eviction Moratorium, Effective Immediately, Forbes (Sept. 1, 2020, 6:17 PM), https://www.forbes.com/sites/sarahhansen/2020/09/01/trump-administration-announces-new-eviction-moratorium-effective-immediately/#a2e8f8621ab1 (federal eviction moratorium is extended until the end of the year).

[2] Id.

[3] Sarah Schindler & Kellen Zale, How the Law Fails Tenants (and Not Just During A Pandemic), 68 UCLA L. Rev. Discourse 146, 150-51 (2020).

[4] Payday Loan Facts and the CFPB’s Impact, Pew,  https://www.pewtrusts.org/en/research-and-analysis/fact-sheets/2016/01/payday-loan-facts-and-the-cfpbs-impact (last updated May 26, 2016).

[5] U.S. Dep’t of Hous. and Urban Dev., Message from PD&R Senior Leadership: Landlords,  https://www.huduser.gov/portal/pdredge/pdr-edge-frm-asst-sec-061118.html (last visited on Sept. 11, 2020).

[6]Robert Farrington, What an ‘Eviction Freeze’ Means for Mom and Pop Landlords, Forbes (July 15, 2020, 7:44 AM), https://www.forbes.com/sites/robertfarrington/2020/07/15/what-an-eviction-freeze-means-for-mom-and-pop-landlords/#2181228a7061. See also Abby Vesoulis, How Eviction Moratoriums Are Hurting Small Landlords—and Why That’s Bad for the Future of Affordable Housing, Time, (June 11, 2020, 10:08 AM) https://time.com/5846383/coronavirus-small-landlords/.

[7] See Jacob Passy, ‘Landlords are just trying to pay their bills like everyone else.’ The coronavirus could hit mom-and-pop landlords hard as tenants miss rent payments, MarketWatch, (Mar. 26, 2020, 2:17 PM), https://www.marketwatch.com/story/landlords-are-just-trying-to-pay-bills-like-everyone-else-the-coronavirus-could-hit-mom-and-pop-landlords-hard-as-tenants-miss-rent-payments-2020-03-25.

[8] Karen Ho, Missed rent and mortgage payments are rippling across the economy, Quartz, (April 30, 2020) https://qz.com/1844447/missed-rent-and-mortgage-payments-are-leading-to-forbearance-and-defaults/.

[9] Vesoulis, supra note 6.

Black Lives Matter Is Being Used to Strike Black Jurors

Lauren Green

In Batson v. Kentucky, the Supreme Court “ended the widespread practice in which prosecutors could (and often would) routinely strike all Black prospective jurors in cases involving Black defendants.”[1] Batson was supposed to raise the bar by requiring trial judges to evaluate a prosecutor’s “neutral explanation” in response to allegations of racially motivated juror strikes.[2] Rather, Batson’s “neutral explanation” standard enables and compels judges to take prosecutors at their word.[3] This creates a vicious circle where courts to continue to approve prosecutors’ reliance on certain explanations and prosecutors therefore continue to use those explanations. In a study that looked at more than 700 cases in California, peremptory challenges were used to eject Black jurors more than 70% of the time.[4] Of the 142 Batson objections ruled on between 1989 and 2019, California’s appeals court found prosecutorial prejudice in only three.[5]

Batson is failing at the state level as courts fail to rigorously apply the standard. This has become particularly troublesome regarding support of and involvement in Black Lives Matter (“BLM”). In a criminal case involving three Black men, prosecutors asked Chrishala Reed, a Black woman, about her involvement in BLM.[6] While the county court did not permit the prosecutors to use BLM as a for cause challenge to remove Reed, prosecutors used one of their peremptory challenges to remove her anyway.[7]

Attorneys for Reed noted that this technique is being implemented across the country: prosecutors ask potential jurors racially loaded questions and use their answers as an avenue to strike Black jurors.[8] For instance, in United States v. Bishop, the Ninth Circuit ruled that asking jurors in Los Angeles if they lived in Compton “served as a mere surrogate for race.”[9] In State v. Gresham, however, the Minnesota Court of Appeals affirmed the prosecutor’s peremptory challenge, over defendant’s objections and after the district court denied the prosecutor’s for cause challenge, upon asking a Black potential juror about her involvement in BLM.[10] The appeals court found that the prosecutor’s explanation regarding the juror’s “bias against the police, her statement that it was difficult to presume innocence, and her ability not to consider the consequences of the verdict” did not reveal inherently discriminatory intent.[11]

One of the attorneys for Reed argues that interrogating a juror’s feelings toward BLM is tantamount to interrogating Blackness.[12] In this sense, asking a Black juror about BLM serves as a mere surrogate for race similar to Bishop. Further, support of BLM is inexplicably tied to questions such as those asked by the prosecutor in Gresham,[13] yet jurors’ answers are subsequently reframed by prosecutors as “race-neutral” to bypass Batson, but still extrapolate bias.[14] The Ninth Circuit explained in Bishop that even assuming the prosecutor’s explanation was sincere, the explanation was not sufficient to satisfy Batson because “a discriminatory intent [was] inherent in the prosecutor’s explanation.”[15] The court noted in finding such that “the justification was tainted by impermissible generalizations regarding racial groups and their environment.”[16]

Simply, asking a potential juror about their support of BLM is a racially loaded question used by prosecutors to assume that juror cannot act impartially toward a Black defendant, but reframed as a bias against the State and law enforcement. The assumption that support of BLM automatically creates bias and impartiality is the type of impermissible generalization regarding racial groups Batson prohibits.[17] As seen above, courts deny prosecutors to use involvement and support of BLM as a for cause challenge but fail to engage in meaningful Batson analysis when reframed as a peremptory challenge. This intentional discrimination disguised as bias against the State harms not only the defendant but reinforces the Black community’s lack of confidence in the criminal justice system—a key motivator to support BLM. Until judges rigorously apply the Batson standard, or a new standard is articulated, voir dire will continue violating the Equal Protection rights of Black defendants and Black jurors, dismantling the protection a trial by jury is supposed to secure and amplifying distrust in the criminal justice system.


[1] Flowers v. Mississippi, 139 S.Ct. 2228, 2242 (2019) (referencing Batson, 476 U.S. 79, 89 (1986) (reaffirming Swain v. Alabama, 380 U.S. 202, 203–204 (1965) holding that purposeful exclusion of Black potential jurors ran afoul of the Equal Protection Clause)).

[2] Cynthia Rowland-Richers, Batson v. Kentucky: The New and Improved Peremptory Challenge, 38 Hastings L.J. 1195–96 (1987).

[3] Elisabeth Semel et al., Whitewashing the Jury Box: How California Perpetuates the Discriminatory Exclusion of Black and Latinx Jurors, Berkley L. Death Penalty Clinic (2020), https://www.law.berkeley.edu/experiential/clinics/death-penalty-clinic/projects-and-cases/whitewashing-the-jury-box-how-california-perpetuates-the-discriminatory-exclusion-of-black-and-latinx-jurors/.

[4] Id.

[5] Id. See also Flowers, 139 S.Ct. 2228 (involving a particularly “relentless” district attorney who had made peremptory challenges of a total of 41 Black prospective jurors over the course of two mistrials and four vacated verdicts).

[6] Andrew Karpan, When Can A Juror Say Black Lives Matter?, Law360 (Aug. 9, 2020, 8:02PM), https://www.law360.com/access-to-justice/articles/1299398/when-can-a-juror-say-black-lives-matter-?nl_pk=d4d1b6d1-e90e-457b-b8c8-3714b4237afa&utm_source=newsletter&utm_medium=email&utm_campaign=access-to-justice.

[7] Id. Prosecutors had already used peremptory challenges to remove six other persons of color from serving on the jury in the case. Id.

[8] Id.

[9] 959 F.2d 820, 826 (1992). See Cooper v. State, 432 P.3d 202, 206 (Nev. 2018) (“[W]e are concerned that by questioning a venire member’s support for social justice movements with indisputable racial undertones, the person asking the question believes that a “certain, cognizable racial group of jurors would be unable to be impartial, an assumption forbidden by the Equal Protection Clause.”).

[10] State v. Gresham, No. A15-1691, 2016 WL 7338718, at *1 (Minn. Ct. App. Dec. 19, 2016) (prosecutor asked prospective jurors, “Have you participated in any of the Black Lives Matters kind of marches and stuff like that here?”).

[11] Id. at *3.

[12] Karpan, supra note 6.

[13] The prosecutor asked: “[H]ave you participated in any of the Black Lives Matters kind of marches and stuff like that here?”; “[D]o you believe at least that there are [a] disproportionate amount of people of color who are going to prison?”; and also asked the juror if she believed her son had been racially profiled. Gresham, at *2.

[14] See the Gresham prosecutor’s “race-neutral” explanation at note 11.

[15] U.S. v. Bishop, 959 F.2d at 827 (citing Hernandez v. New York, 500 U.S. 352, 358­–59 (1991)).

[16] Id.

[17] 476 U.S. at 89.

How Telehealth Flexibility Driven By COVID-19 is Improving Mental Health Access

Stephanie Raborn

Despite Mental Health Parity laws, access to mental health services in the United States is limited.[1] A combination of cost, providers’ preferences for cash-based practices, and ongoing stigma about psychological and psychiatric services make it harder for individuals to access mental health services.[2] This problem is exacerbated by the global pandemic in terms of increased anxiety caused by physical and economic uncertainty and loss of income, including loss of health coverage benefits through employer-sponsored insurance.[3] But there is some good news—regulators’ and providers’ increased flexibility is making it easier to obtain mental health services through telemedicine.[4]

There are further improvements needed—like creating a pathway for individuals to obtain prescriptions currently blocked by the Ryan Haight Act[5]—but the legislative and regulatory response to access issues occurring as a result of the COVID-19 pandemic are a step in the right direction. For example, Pennsylvania has temporarily suspended program limits on the amount of services that can be provided through telehealth.[6] Maryland is allowing residential substance use disorder treatment programs to provide telehealth services to Medicaid patients and qualified uninsured Marylanders.[7] And Connecticut, while still requiring that participants be at Medicaid-enrolled originating sites to receive certain services­­—such as opioid treatment programs—via telemedicine, has removed limitations for originating sites for individual therapy, family therapy, or psychotherapy with medication management.[8]

Further, the Department of Health and Human Services as released guidance encouraging the use of telehealth for provision of various health services.[9] Insurers are getting on board, too. In July, Blue Cross Blue Shield of Massachusetts announced a plan to expand access to telehealth services by releasing a new incentive plan that reimburses child psychiatrists at a rate fifty percent higher than the standard rate schedule in exchange for agreeing to maintain availability in their practices for Blue Cross Blue Shield Members.[10] Cigna eliminated cost-sharing not only for telehealth visits from primary-care providers, but also for telehealth visits for behavioral health.[11] And Optum, a subsidiary of UnitedHealth Group, expanded availability of telehealth visits including growing its number of behavioral health providers.[12]

And indeed, there has been a dramatic increase in utilization of telehealth services overall amidst the pandemic.[13] Whether these measures take root and further expand access to mental health services remains to be seen, but they are a small victory, and as such are worth celebrating.

[1] New Study Reveals Lack of Access as Root Cause for Mental Health Crisis in America, National Council for Behavioral Health (Oct. 10, 2018), https://www.thenationalcouncil.org/press-releases/new-study-reveals-lack-of-access-as-root-cause-for-mental-health-crisis-in-america/#:~:text=These%20beliefs%20are%20driven%20by,for%20accessing%20mental%20health%20care..

[2]Mental Health in America: Access to Care Data, Mental Health America, https://www.mhanational.org/issues/mental-health-america-access-care-data  (last visited Aug. 2, 2020) (reporting that in 2020, 10.7%, or over 4.7 million, adults with mental illness remained uninsured).

[3] Alvin Powell, Feeling more anxious and stressed? You’re not alone, The Harvard Gazette (Apr. 16, 2020), https://news.harvard.edu/gazette/story/2020/04/rising-mental-health-concerns-in-the-coronavirus-era/ (highlighting individual responses reporting increased stress and anxiety being linked to the Covid-19 pandemic). See also Nirmita Panchal et al., The Implications of Covid-19 for Mental Health and Substance Use, Kaiser Family Foundation (Apr. 21, 2020), https://www.kff.org/coronavirus-covid-19/issue-brief/the-implications-of-covid-19-for-mental-health-and-substance-use/ (noting that in a Kaiser Family Foundation poll, forty-five percent of polled individuals reported a negative impact on their mental health “over worry and stress over the virus”).

[4] Madeline Guth and Elizabeth Hinton, State Efforts to Expand Medicaid Coverage & Access to Telehealth in Response to COVID-19, Kaiser Family Foundation (June 22, 2020),  https://www.kff.org/coronavirus-covid-19/issue-brief/state-efforts-to-expand-medicaid-coverage-access-to-telehealth-in-response-to-covid-19/.

[5] See Kierin Bernard, Telemedicine and the Ryan Haight Act: An Analysis of the Ryan Haight Act’s Statutory Purpose, its Inadvertently Negative Impact on the Telemedicine Industry, and the Future of Telemedicine, 10 Wake Forest J. L. & Pol’y 59, 64 (2019) (noting that “[o]ne of the most significant legislative limitations of telemedicine . . . is the requirement of the Ryan Haight Act that providers must conduct an in-person exam before they can prescribe controlled medications to their patients.”).

[6] Memorandum from the Pennsylvania Office of Mental Health and Substance Abuse Services (OMHSAS) (Mar. 15, 2020), https://www.dos.pa.gov/ProfessionalLicensing/Documents/OMHSAS-COVID-19-Telehealth-Expansion.pdf.

[7] Telehealth Guidance for SUD Residential Treatment Services During the COVID-19 Outbreak, Maryland Dep’t of Health (Apr. 15, 2020), https://maryland.optum.com/content/dam/ops-maryland/documents/provider/Alerts/april2020/Telehealth%20SUD%20Residential%20Treatment%20Guidance_041520.pdf.

[8] Connecticut Medical Assistance Program Provider Bulletin (Mar. 13, 2020), https://www.ctdssmap.com/CTPortal/Information/Get%20Download%20File/tabid/44/Default.aspx?Filename=pb20_09.pdf&URI=Bulletins/pb20_09.pdf.

[9] Telehealth: Delivering Care Safely During COVID-19, HHS.gov, https://www.hhs.gov/coronavirus/telehealth/index.html (last visited Aug. 2, 2020).

[10] Blue Cross Blue Shield of Massachusetts Announces Bold New Action To Expand Members’ Access to Mental Health Services, Blue Cross Blue Shield of Massachusetts (July 23, 2020),  http://newsroom.bluecrossma.com/2020-07-23-Blue-Cross-Blue-Shield-of-Massachusetts-Announces-Bold-New-Action-To-Expand-Members-Access-to-Mental-Health-Services.

[11] Cigna Expands and Extends its COVID-19 Relief for Medicare Advantage and Individual and Family Plans, Cigna Newsroom (June 1, 2020), https://www.cigna.com/newsroom/news-releases/2020/cigna-expands-and-extends-its-covid-19-relief-efforts-for-medicare-advantage-and-individual-and-family-plans.

[12] Optum Helping People Stay Connected with Needed Behavioral Health Support During COVID-19, BusinessWire (May 11, 2020), https://www.businesswire.com/news/home/20200511005259/en/Optum-Helping-People-Stay-Connected-Needed-Behavioral (discussing Optum’s expansion of behavioral health by adding more telehealth providers and expanding the availability of telehealth visits).

[13] Assistant Sec’y Plan. Educ., Medicare Beneficiary Use of Telehealth Visits: Early Data from the Start of the Covid-19 Pandemic, HHS.gov, 3 (July 2020) https://aspe.hhs.gov/system/files/pdf/263866/HP_IssueBrief_MedicareTelehealth_final7.29.20.pdf.

A Title IX Timing Conundrum

Manning Peeler

          This post discusses the timing of the recently released Title IX final regulation by the U.S. Department of Education.  For an in-depth consideration of cross-examination in campus Title IX hearings, see Manning’s forthcoming article in the Wake Forest Journal of Law & Policy Volume 10, Issue 3 entitled Seeking Clarity in the Title IX Confusion: Cross-Examination Requirement in Title IX Hearings Under Due Process.

As universities continue to deal with the significant changes to education and campus life caused by the novel coronavirus pandemic, the U.S. Department of Education (DOE) released the final version of a 2,033 page rule regarding how educational institutions can be in compliance with Title IX.[1]  Although schools had been looking forward to finally receiving official guidance on the topic, both the timing of the release and the date required for compliance lead to serious concerns.  Universities will need to comply with the new regulation by August 14, 2020, but as they deal with the fallout of COVID-19, university general counsels, Title IX offices, and other stakeholders need more time to make structural changes to policies and procedures in order to come into compliance with the new regulations.

The DOE released a Notice of Proposed Rulemaking regarding Title IX regulations on November 29, 2018, replacing the previously rescinded 2011 Dear Colleague Letter and 2014 Title IX Guidance Q&A.[2]  This proposed rule received significant feedback and criticism, setting the record for the highest number of comments ever made on a proposed rule at over 124,000 comments.  The influx of public comments demonstrated that there were significant issues with the proposed rule, so universities lacked clarity regarding how to prepare to adjust their Title IX programs to comply with the eventual final rule.   Almost eighteen months later on May 6, 2020, the DOE released the final version of the rule, which made significant changes to the original proposed rule.  These changes affected crucial aspects of a Title IX program such as the standard of proof in hearings, the minimal amount of Title IX claim investigators, and training requirements for the campus community.  According to the rule, universities must be in compliance with it by August 14, 2020.

While some of these changes were important and necessary to attempt to balance supporting sexual assault survivors with protecting the due process rights of the accused, universities need more than just a summer, especially a summer during a worldwide pandemic, to shape their Title IX programs to be in compliance with the new rule.  The August 14, 2020 date is not arbitrary.  It coincides with the starting date for many schools throughout the country and would allow for all Title IX claims during the 2020-2021 academic year to be handled under the same rules.  Although this is a respectable goal, it is not a feasible one.  Ted Mitchell, President of the American Council on Education, stated that the DOE usually gives schools at least eight months to adjust their operations to comply with new regulations, and he criticized the DOE’s timing by stating, “As a result of the pandemic, virtually every college and university in the country is closed. Choosing this moment to impose the most complex and challenging regulations the agency has ever issued reflects appallingly poor judgment.”[3]  Peter Lake, the Director of the Stetson University Center for Excellence in Higher Education Law and Policy, echoed Mitchell’s sentiment, pointing out that “[a] lot of people are going to be out of compliance for an entire academic year. The timing of this is really difficult for higher ed: late in the budget cycle, during a crisis and when they don’t have money.”[4]

With penalties such as loss of federal funding looming, universities must scramble to comply.   Difficulties associated with the pandemic include uncertainty about the opening of campuses, working from home, and budget issues.  Not all universities will have to make drastic changes to their Title IX programs in order to come into compliance, but any changes are significantly more difficult during a pandemic.  For example, the final rule requires at least three staff members to carry out different steps in the Title IX complaint process, so universities that do not have enough Title IX staff to meet this requirement will need to hire more staff or reorganize their staff structures.  As a result of the pandemic, universities already face difficult decisions regarding budgeting and staffing, and having to change their staffing organization in such a short time, especially in the period of stay-at-home orders, is an unnecessary burden to place on universities.  In order to ensure that universities have adequate time and resources to comply fully with the final rule and work toward Secretary Betsy DeVos’ goal of “support[ing] survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process,” the DOE needs to extend the timeline to comply with the final rule.[5]

[1] 34 C.F.R. pt. 106 (2020).  Although this regulation applies to all schools that receive federal funding, this post focuses on higher education institutions.

[2] See 83 Fed. Reg. 61,462, 61,497 (proposed Nov. 29, 2018) (to be codified at 34 C.F.R. pt. 106); Letter from Russlynn Ali, Assistant Sec’y for Civil Rights, Office for Civil Rights, U.S. Dep’t of Educ., Dear Colleague Letter: Sexual Violence 1, 4 (Apr. 4, 2011) (on file with the U.S. Dep’t. of Edu.); Memorandum from Catherine E. Lhamon, Assistant Sec’y for Civil Rights, Office for Civil Rights, U.S. Dep’t of Educ., Questions and Answers on Title IX and Sexual Violence iii (Apr. 29, 2014) (on file with the U.S. Dep’t. of Edu.).

[3] Greta Anderson, U.S. Publishes New Regulations on Sexual Assault, Inside Higher Education (May 7, 2020), https://www.insidehighered.com/news/2020/05/07/education-department-releases-final-title-ix-regulations.

[4] Id.

[5] Kathryn Stamm, New DeVos Title IX Rules to be Enacted by Mid-August, Leaving Colleges Scrambling to Comply, The Cornell Daily Sun (May 7, 2020), https://cornellsun.com/2020/05/07/new-devos-title-ix-rules-to-be-enacted-by-mid-august-leaving-colleges-scrambling-to-comply.