THE HIGH SCHOOL JOURNAL FOR LAW & SOCIETY
Table of Contents I. The Rural vs. Urban Partisan Split’s Effect on Policies in the United States……
II. Vaccination Mandates and Liberty in the Legal System……
III. And Speak a Tyrant Faction’s Doom……
The Rural vs. Urban Partisan Split’s Effect on Policies in the United States Author Maria Gerashchenko, She/Her Brookline High School, Class of 2022 Brookline, MA Mentor Jennifer Grubb History Teacher Brookline High School Editor Enya Kamadolli, she/her Newton South High School, Class of 2022 Newton, MA Reviewer Zoe Nemerever PhD Candidate in Political Science University of San Diego, California
The stark divide between political parties has remained generally constant throughout US history, and the 2020 presidential election results certainly did not divert from that paradigm. The Democratic Party was the popular choice in cities, whereas rural areas favored the Republican Party. As such, 40% of people surveyed in rural areas rated President Trump positively, whereas only 19% felt similarly in urban areas. This partisan split, however, pervades not only the Presidential elections but also influences the greater intricacies of state and nationwide laws. To further understand the depth of this divide, one must consider the historical contexts which yielded this geographic divide between the Republican and Democratic parties. Analyzing US history is crucial to understanding our modern political systems, specifically, how they continue to be affected by industrialization and urbanization. While partisan divides existed prior to the American Industrial Revolution, industrialization served to exacerbate divides between rural and urban areas, polarity that continues to impact the nation's political landscape. Soon after Samuel Slater, the "father of the American Industrial Revolution,” introduced industrialization to the United States, society began a rapid transformation. The influx of foreign immigrants who entered the country during the mid-19th century provided the United States with the labor force needed to power its growing economy. As years passed, towns morphed into large cities, characterized by scientific advancement, innovation, and cultural diversity. This urbanization served to further increase the divergence of rural and urban areas. As development progressed over time, the North had industrialized more than the South, resulting in an ideological split. With a manufacturing-based economy in the North and agrarian ideals in the South, the population distribution shifted overtime, leading to rivaling ideas surrounding economic and societal policies. More specifically, rural areas had, and continue to have, more open land available. According to Census Bureau Director John H. Thompson,
“Rural areas cover 97 percent of the nation’s land area but contain 19.3 percent of the population.” With more available land per person in rural areas than urban areas, there is more opportunity to be a property owner as well as a self-employed individual. This economic isolation makes it less probable that self-employed people would turn to government intervention to solve any issues they may have. Conservative economic policies is favorable among these rural citizens, as conservatism calls for the government to be a stable force which does not transform policies radically, and serves people rather than controls them. For city dwellers, the opposite is favorable, contributing to divisive views which fuel a large part of the conflict over legislation and policy views. Difference in opinion over economic policy is only one of the aspects affecting the impressive results seen in the aforementioned 2020 election results map though. When taking a closer look at any single state, it becomes apparent that counties tended to swing increasingly Republican the further they were from a city, a trend relevant not only to general elections, but to specific policy positions such as gun control. Issues like these reveal the applications of localism, a consequence of rural vs. urban distinctions. Localism refers to the tailoring of policies to areas where they are likely to gain the most support. Gun violence is disproportionately concentrated in densely populated cities, so elected officials from urban areas commonly pursue gun control legislation. In contrast, people in rural areas are far more likely to grow up with firearms, hunt to provide food for their families, use them for recreation, and feel that they are necessary for personal safety. Although the Supreme Court created nationwide changes to gun control through District of Columbia v. Heller  and McDonald v. City of Chicago , gun control laws still remain varied on a state level as a result of localism. In part due to a push beginning in the 1980s, over 42 states have enacted “broad firearm preemption laws.”
Preemption prohibits localities from making their own laws on a given topic, so gun laws are made at the state-level.  In such instances, even court cases that affect a nation cannot completely overrule the power of regional and state laws, furthering the disparities in different parts of the country. Most recently, the COVID-19 outbreak has changed cities in a substantially different way in comparison to rural areas. Although urban areas are more densely populated, the overall numbers of cases have remained similar between rural areas and cities. This occurrence can be explained by a multitude of factors, with one of the major components being that whilst larger cities implemented mask wearing mandates fairly early, many rural areas waited until it was too late. In Ford County, Kansas, even when Governor Laura Kelly, a Democrat, ordered a temporary statewide stay-at-home order, the people of Ford County largely ignored it. Overall, public officials in conservative areas could easily justify pushing aside advice of health officials when infection rates were lower earlier in the year. This serves as an example of the partisan patterns in COVID-19 policies that impacted the way the virus was handled in rural vs. urban areas. Attitudes surrounding the severity of the virus were much calmer in areas with mostly Republican voters, whereas Democratic areas were more concerned, affecting the way that regulations such as social distancing were followed. This could be explained by a multitude of reasons, with one being possible modelling of the actions performed by political role models. Although cities with mask mandates and social distancing caught up in terms of infection rates, the difference in government action surrounding the pandemic highlights another way that localism can impact policy.
The United States has always been, and continues to be an extremely divided climate, greatly due to industrialization and its consequences. With the birth of new industrial cities came new values, contributing to increased partisan differences throughout the nation, and interfering with the creation of potential policies. Due to this, advancement of government is altered. To mitigate legal and political conflict between rural and urban areas, one must ensure that different partisan beliefs across the spectrum are taken account of. Although nationwide policies are bound to not please everyone, keeping in mind how parties affect different locations would provide a clearer view of how a new policy would be perceived. A cooperative nation can be achieved by understanding and empathizing with the ways that divisions are born in the first place, so by analyzing how the locational differences throughout the United States have impacted government action in the past, future responses can be predicted and used to implement policies successfully.
 Kim Parker, Juliana Menasce Horowitz. “How Urban, Suburban and Rural Residents' View Social and Political Issues.” Pew Research Center's Social & Demographic Trends Project, 30 May 2020, www.pewsocialtrends.org/2018/05/22/urban-suburban-and-rural-residents-views-on-key-social-a nd-political-issues/.  "Industrial Revolution in America." Gale U.S. History Online Collection, Gale, 2020. Gale In Context: U.S. History, link.gale.com/apps/doc/VMQLBM276840343/UHIC?u=mlin_m_brookhs&sid=UHIC&xid=954 4142b. Accessed 2 Dec. 2020.  Bureau, US Census. “New Census Data Show Differences Between Urban and Rural Populations.” The United States Census Bureau, 30 Dec. 2016, www.census.gov/newsroom/press-releases/2016/cb16-210.html.  “Why Rural America Is Increasingly Red.” Governing, www.governing.com/archive/gov-rural-voters-governors-races.html.  “Conservatism.” Encyclopædia Britannica, Encyclopædia Britannica, Inc., www.britannica.com/topic/conservatism.  “Understanding the Election: AP.” Associated Press, www.ap.org/media-center/understanding-the-election.  “Localism.” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/localism. Accessed 3 Dec. 2020.  "District of Columbia v. Heller." Oyez, www.oyez.org/cases/2007/07-290. Accessed 13 Dec. 2020.  "McDonald v. Chicago." Oyez, www.oyez.org/cases/2009/08-1521. Accessed 13 Dec. 2020.  Blocher, Joseph. “A Gun Debate Compromise: Let Cities and Rural Areas Pass Different Laws.” Vox, Vox, 21 Mar. 2018, www.vox.com/the-big-idea/2018/3/21/17147398/rural-cities-gun-laws-control-culture-war-nra-s econd-amendment-parkland-shootings.
 “COVID-19 Stats: COVID-19 Incidence, by Urban-Rural Classification - United States, January 22–October 31, 2020.” Centers for Disease Control and Prevention, Centers for Disease Control and Prevention, 19 Nov. 2020, www.cdc.gov/mmwr/volumes/69/wr/mm6946a6.htm.  Ball, Andrea, et al. “A Small Town Dragged Its Feet on COVID-19 Mask Mandates, and Residents Pay the Price.” USA Today, Gannett Satellite Information Network, 20 Dec. 2020, www.usatoday.com/in-depth/news/investigations/2020/12/11/small-town-dragged-its-feet-maskmandates-thousands-got-sick/6481416002/.  Gollwitzer, Anton, et al. “Partisan Differences in Physical Distancing Are Linked to Health Outcomes during the COVID-19 Pandemic.” Nature News, Nature Publishing Group, 2 Nov. 2020, www.nature.com/articles/s41562-020-00977-7.
Vaccination Mandates and Liberty in the Legal System Author Katherine O’Connor, They/Them Brookline High School, Class of 2021 Brookline, MA Mentor Marcie Miller Legal Studies Teacher Brookline High School Editor Zoe Tseng, She/Her Brookline High School, Class of 2021 Brookline, MA Reviewer Alexandra Wood Law Fellow Berkman Klein Center at Harvard University
With COVID-19 rampant in the United States, the issue of mandatory vaccination has recently been on the minds of many —especially vaccine skeptics and the so-called “anti-vaxx” movement (Young and Hagan). However, the question of how much power the government has, or should have, in mandating vaccinations is not a new one. Since the first smallpox vaccine was manufactured in the late 18th century, opposition to vaccinations has been steadfast. But it greatly intensified after Dr. Andrew Wakefield’s 1998 publication falsely linked the measles, mumps and rubella (MMR) vaccine with autism (Rao and Chittaranjan). However, countering vaccine skeptics has been the United States’ legal system, most notably in its precedent setting 1905 ruling in Jacobson v. Massachusetts. Through Jacobson, the Court established a reasonable precedent for mandatory vaccinations, however, its ruling has been unreasonably recontextualized by the 5th Circuit Court of Appeals (In re: Gregg Abbott) through its approach to abortion restrictions during the COVID-19 pandemic in a way that unjustly impinges on civil liberties. Applying this case that deals with mandatory vaccinations to abortion is a dangerous misinterpretation that impinges on civil liberties and, more generally, opens the door to further breaches of freedom under the guise of public safety. Vaccines first originated in 1796 when Dr. Edward Jenner used cowpox sores to manufacture the first smallpox vaccine. Since then, the World Health Organization successfully orchestrated an international smallpox eradication program, and several other vaccines have been developed for other diseases since. Today, the US Centers for Disease Control and Prevention recommends vaccinations for 16 diseases, and they are widely accepted as an effective tool for keeping populations safe. As the numerous recent resurgences of measles have signaled, diseases can reemerge if populations don’t continue vaccinating themselves and upholding herd immunity
(“Vaccines”). In short, vaccination has been a critical public health tool throughout modern history, and not only during global public health crises like the COVID-19 pandemic. The 10
responsibility of adherence to recommended vaccine schedules in the US has largely revolved around government action. To support the United States’ largely effective vaccination programs, Congress passed the National Childhood Vaccine Injury Act (NCVIA) in 1986. This act established the National Vaccine Program to handle vaccine regulation, an Vaccine Adverse Event Reporting System to uphold vaccine safety, and the National Vaccine Injury Compensation Program, which provided government funds to patients who experience adverse effects from vaccinations. In short, the NCVIA aimed to encourage Americans to continue vaccinating themselves, protect vaccine manufacturers from expensive lawsuits, and help keep vaccines affordable. However, no federal law has ever required vaccinations and states have been largely responsible for vaccine mandates and distribution. As early as 1809, in the midst of the smallpox epidemic, Massachusetts passed the first vaccination law in the United States, allowing local governments to require smallpox vaccinations for Massachusetts residents over 21 years of age. In 1855, the Commonwealth followed up on it’s previous law, making it mandatory for kids to get smallpox vaccines to go to public schools (“Vaccines”). It is also important to note that the court system, in considering the rollout of vaccination programs, largely denounced the targeting of racial groups (specifically Asian Americans) prior to the Jacobson v. Massachusetts precedent. For example, in 1900, the federal Circuit Court for the Northern District of California heard the Wong Wai v. Williamson case, wherein the city of San Francisco mandated that all people of Chinese ancestry undergo an “inoculation against the bubonic plague by a serum known as ‘Haffkine Prophylactic’” and banned those who hadn’t received the serum from leaving the city (McClain). In the case, settled in 1900, the Court established that vaccination mandates cannot be enforced in a racially discriminatory manner as it violates the Equal Protection Clause of the Fourteenth Amendment (Holland). As Chinese people were of no greater risk of spreading diseases as their
non-Chinese peers, the city’s law was overturned. Wong Wai was soon followed by Jacobson v. Massachusetts (1905), a precedent setting case for vaccination mandates throughout the United States. The case’s story started in Cambridge, Massachusetts, wherein the city’s government required all adults to receive smallpox vaccinations during the epidemic (Toward). Refusing the vaccination resulted in a five-dollar fine: the equivalent of approximately $110 today (Holland). In 1902, a local minister, Henning Jacobson, refused the vaccination and subsequently refused to pay the fine, arguing that the vaccination mandate violated the Massachusetts and United States Constitutions. All Massachusetts courts rejected his arguments. Still, Jacobson appealed his case until it found its way to the Supreme Court in 1904 (Toward). The Court was tasked with answering the following question: Did the mandatory vaccination law violate Jacobson's Fourteenth Amendment right to liberty? In their 7-2 majority decision, issued by Justice John Marshall Harlan, the Court ruled against Jacobson and upheld the vaccination mandate (Jacobson). Justice Harlan applied the strict scrutiny standard of judicial review, which requires that a law be “narrowly tailored to further a compelling government interest,” and uses the "least restrictive means" to achieve the compelling purpose. He further specified five criteria for a public health regulation to be constitutional: public health necessity, reasonable means, proportionality, harm avoidance, and fairness (Holland and Gerstmann). Though this decision was incredibly important in supporting vaccination mandates, it also set important boundaries. In his opinion, Justice Harlan notably warned against "arbitrary" or "oppressive" regulation (Biskupic). Further, Jacobson explicitly created a medical exemption from vaccinations, which still exist across the United States (Holland). This precedent set a reasonable standard for when and how the government can restrict individual liberties in favor of public health - one that has naturally expanded over time, but, most recently, has been gravely misinterpreted.
To examine how Jacobson’s standard has been misrepresented, it is important to understand the ways in which its precedent had been interpreted prior to the recent 5th Circuit Court ruling. Judicial interpretations of Jacobson’s precedent first started expanding with the Alabama Supreme Court’s 1916 Herbert v. Demopolis School Board of Education decision. In this case, a father refused to vaccinate his daughter against smallpox because it was no longer an epidemic in his area. Subsequently, she was not allowed to attend public school. A similar case, Board of Trustees v. McMurtry, was decided by the Kentucky Supreme Court in the same year. In their majority rulings, both courts decided that Jacobson included an implied power for states to prevent public health epidemics, not just to respond to existing ones. Jacobson’s precedent was further expanded under the Supreme Court’s 1922 Zucht v. King decision. In its unanimous ruling, the Court upheld all previous rulings in deciding that compulsory vaccinations for school admission, even if in preventative measures in non-emergency public health situations, was constitutional. This drastically, but logically, expanded Jacobson’s precedent, as it was consistent with Jacobson’ “public health necessity” conditions while still asserting that vaccination mandates on a specific group (i.e. schoolchildren) was constitutional, going against Wong Wai v. Williamson’s previous ruling against vaccination mandates of a specific (racial) group – though it is important to note that the Supreme Court is not bound by a lower court’s decision on this case (Holland). These expansions have made it so that all states require certain immunizations to attend public schools, though scheduling requirements differ by state, and many states have religious and philosophical exemptions (“Vaccines”). Unfortunately, these well-intentioned court rulings, made for the betterment of public health, have been used in combination with Jacobson to irrationally limit civil liberties. Most recently, Jacobson’s precedent has been illogically applied to a new context by the 5th Circuit Court of Appeals through its approach to abortion restrictions during the COVID-19
pandemic. In April of 2020, as the pandemic soared through the country, Texas’ Republican governor Gregg Abbott suspended all non-essential medical procedures for three months. Included in his “non-essential medical procedures” list were abortions. In the 5th Circuit Court of Appeals’ In re: Gregg Abbott 2-1 panel ruling, the Court favored the Governor Abbott’s classification of abortions as non-essential, further arguing that diverting PPE (personal protective equipment) to non-pandemic related procedures was irresponsible. As the Court rejected all arguments founded in Roe v. Wade’s 1973 precedent protecting reproductive rights, Northeastern University law professor Wendy Parmet, who specializes in public health law, argued that they “cherry-picked from Jacobson” in all of their rejections (Biskupic). Jacobson set reasonable guidelines for when public health can trump civil liberties, and the misapplication of these guidelines (in this case, applying them to abortion rights) has had enormously negative consequences. In comparison with the previous year, the number of abortions in Texas dropped by 38% in April, and after the order expired, second-trimester abortions increased 61%. This suspension of abortions made the already limited abortion facilities in Texas reach capacity much faster in the attempt to meet backlogged patient needs, and it further increased the risks of the procedure as these abortions were happening later in the pregnancy (Najmabadi). Further, in his dissent, Judge James Dennis argued that “In a time where panic and fear already consume our daily lives, the majority's opinion inflicts further panic and fear on women in Texas by exposing them to the risks of continuing an unwanted pregnancy, as well as the risks of travelling to other states in search of time-sensitive medical care" (Biskupic). In other words, abortions, unlike other medical procedures, cannot be safely postponed, and this decision put pregnant people seeking abortions at an even higher-risk situation in the midst of a public health crisis. As proven by the already-horrible consequences of this treacherous ruling, the misinterpretation and irrational expansion of Jacobson’s precedent endangers civil liberties and opens the door to
further breaches of freedom under the guise of public safety. To conclude, though vaccine mandates have been largely effective, the grossly inappropriate usage of Jacobson’s precedent should not continue. Included in Jacobson’s precedent was the criteria of “harm avoidance” and “fairness” - criteria that have been completely disregarded. In the recent application of Jacobson, this has been completely disregarded as the harm done to pregnant people was unfair and not harm avoidant (as abortion procedures are urgent and are more dangerous as a pregnancy continues). Wong Wai v. Williamson ruled that the discrimination of groups was unconstitutional, but through the recent expansion of Jacobson's precedent, the attack on reproductive rights is evident. This opens the door to further violations of civil liberties without the consideration of Jacobson’s “fairness,” and Wong Wai’s nondiscrimination precedents. These interpretations, in combination with Zucht v. King’s allowance for restrictions on personal liberties even when not in a health crisis, create a possibly disastrous future for liberty as we know it.
Bibliography Biskupic, Joan. “The 115-Year-Old Supreme Court Opinion That Could Determine Rights during a Pandemic.” CNN, Cable News Network, 10 Apr. 2020, www.cnn.com/2020/04/10/politics/pandemic-coronavirus-jacobson-supreme-cour t abortion-rights/index.html. Accessed 10 Jan. 2021. Gerstmann, Evan. “Are 'Stay At Home' Orders Constitutional?” Forbes, Forbes Magazine, 25 Mar. 2020, www.forbes.com/sites/evangerstmann/2020/03/25/are-stay-at home-orders-constitutional/?sh=636eb769104e. Accessed 10 Jan. 2021. Holland, Mary. “Compulsory Vaccination, the Constitution, and the Hepatitis B Mandate for Infants and Young Children.” The Yale Journal of Health Policy, Law, and Ethics, 2012, digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1194&amp;context=yjhpl e. Accessed 3 Jan. 2021. In re: Gregg Abbott, No. 20-50264 (5th Cir. 2020) Jacobson v. Massachusetts, 197 U.S. 11 (1905) McClain, Charles. “Of Medicine, Race, and American Law: The Bubonic Plague Outbreak of 1900.” Law & Social Inquiry, vol. 13, no. 3, 1988, pp. 447–513. JSTOR, www.jstor.org/stable/828412. Accessed 19 Jan. 2021. Najmabadi, Shannon. “Early in the Pandemic, Texas Banned Most Abortions. After the Ban Lifted, Second-Trimester Abortions Jumped, a New Study Shows.” The Texas Tribune, The Texas Tribune, 4 Jan. 2021, www.texastribune.org/2021/01/04/texas abortions-coronavirus-pandemic/. Accessed 3 Jan. 2021. Rao, T S Sathyanarayana, and Chittaranjan Andrade. “The MMR vaccine and autism: Sensation, refutation, retraction, and fraud.” Indian journal of psychiatry vol. 53,2 (2011): 95-6. doi:10.4103/0019-5545.82529 "Toward a twenty-first-century Jacobson v. Massachusetts." Harvard Law Review, vol. 121, no. 7, 2008, p. 1820+. Gale In Context: U.S. History, link.gale.com/apps/doc/A190883667/UHIC?u=mlin_m_brookhs&sid=UHIC&xid=b81d 6 aa5. Accessed 18 Jan. 2021. "Vaccines." Gale Opposing Viewpoints Online Collection, Gale, 2020. pp 1-6. Gale In Context: Opposing Viewpoints, link.gale.com/apps/doc/PC3010999291/OVIC?u=mlin_m_brookhs&sid=OVIC&xid=68 b 9c45c. Accessed 11 Jan. 2021. Wong Wai v. Williamson, 103 F. 1, 5 (C.C.N.D. Cal. 1900)
Young, Robin, and Allison Hagan. “Anti-Coronavirus Vaccine Movement Grows, Fueled By Online Misinformation, Conspiracies.” WBUR, 8 Dec. 2020, www.wbur.org/hereandnow/2020/12/08/anti-vaccine-misinformation Zucht v. King, 260 U.S. 174 (1922)
And Speak a Tyrant Faction’s Doom (The Gathering of the Unions, George DeBosco Attwood) Author Rebecca Lee, She/Her Irvington High School, Class of 2021 Fremont, CA Mentor Sarah Jane Law Associate Arnold & Porter Kaye Scholer LLP Editor Naomi Weisner Brookline High School, Class of 2021 Brookline, MA Reviewer Mason Kortz Clinical Instructor Harvard Law School Cyber Law Clinic
Many citizens—myself included until a few weeks ago—believe that there are laws protecting themselves from being wrongfully prosecuted and convicted. However, many know that these wrongful convictions are unfortunately very real. Amongst the many oppressed is Curtis Flowers, a black man from Mississippi who served twenty-two long years of prison time for the murder of four people in a furniture store, only to have the conviction reversed in 2019. Astonishingly, Flowers had been tried six times over the course of more than twenty years for the same crime, each prosecution ending with mistrial or overturned convictions. The prosecutor, Doug Evans, in his attempt to prove Flowers guilty, unconstitutionally struck black jurors from the jury pool. Out of the seventy-two jurors in Curtis Flowers’ six trials, sixty-one were white, wildly unproportional to the 3:2 ratio of black to white people in Mississippi. The first three convictions were reversed by the Mississippi Supreme Court due to prosecutorial misconduct and blatant discrimination against black jurors, while the fourth and fifth prosecutions ended in a mistrial. In a clear demonstration of bias, within the first four trials, the prosecutor had used all thirty-six of his peremptory challenges to strike any black potential jurors. With all the controversy surrounding it, the sixth and last trial was appealed all the way up to the United States Supreme Court. Justice Kavanaugh, writing for the majority, overturned the death sentence handed to Flowers, calling out Evans for violating the Constitution and discriminating in the jury selection process. Though Flowers’ case was more extreme, he is far from the only defendant wrongfully convicted because of a prosecutor’s abuse of power. Despite a sudden spike in the amount of exonerations happening during 2020 due to prosecutorial misconduct, prosecutors, through absolute immunity, remain protected from lawsuits that only seek justice for their wrongdoings. Decades ago in Imbler v. Pachtman, the Supreme Court held that prosecutors had absolute
immunity against civil liabilities while under their role as prosecutors—even after violating a defendant’s rights. Specifically, if the prosecutor caused the defendant harm, whether through direct actions or lack thereof, they cannot be held accountable, giving them more protection than even police officers. Defendants that have tried to bring suit against their prosecutors often find themselves unable to prevail on their claims. “Prosecutors are some of the most powerful people, more than anyone in America,” says Professor Bennet Gershman, a former prosecutor. “Some have been known to be able to deprive citizens of liberty, life, and reputation.” The idea of immunity was to protect prosecutors from defendants using the legal system to intimidate them. As prosecutors are unable to be held liable in a civil suit, they may make unethical decisions and go unpunished. Prosecutors have, among other things, suppressed evidence that could possibly exonerate a defendant, retried defendants multiple times for the same crime when the conviction was overturned on appeal, and purged black jurors from juries. Court proceedings are highly competitive, and often prosecutors will go to great lengths to “score a win,” or secure punishment for a defendant. Though not every prosecutor is guilty of abusing their power by knowingly seeking unjustified sentences, those that do significantly damage society and the political system. It is extremely hypocritical that prosecutors are immune to legal liability for their misconduct. In a majority of trials, prosecutors argue that defendants should be put in jail to deter them from committing more crime. This is the idea of deterrence theory, a base foundation for many criminal justice policies, used in the daily mechanisms of a prosecution. It is the belief or theory that a threat of punishment will deter people from committing crimes, therefore reducing the level of criminal offense. Oftentimes, the idea of deterrence theory is taken to vast extremes, one common example being the “three strikes” law stating that a defendant convicted of their
third crime, no matter how minor, will get a prolonged sentence or even a life sentence. This is quite hypocritical, since deterrence theory can’t be used against them, thus leaving them free to turn around and use it to incriminate innocents. Though the system has become toxic, it is not beyond reform. There are alternatives that could prevent abuse of power and increase prosecutors’ accountability. Some experts believe that these reforms will require compromise between the extremes of no immunity and absolute immunity. One such expert, Professor Gershman, believes that one of many promising compromise reforms is to eliminate absolute immunity for prosecutors that illegally suppress evidence. Suppression of evidence is pervasive. In order to prevent this abuse of power from prosecutors, voters could push Congress to pass a law allowing prosecutors to be sued for illegal suppression of evidence. This would alleviate some of the most common and destructive behaviour of unethical prosecutors, while still maintaining immunity for other conduct, allowing them to keep civil protection. Another way to prevent misconduct is to create prosecutorial conduct commissions, an effort Professor Gershman and others have worked on in New York. These disciplinary bodies could hold prosecutors accountable for their actions, even going so far as to remove them for misconduct. The idea is to be able to legally file a complaint against prosecutors who have done wrong to prevent the same abuse of power from happening again. Though forming these types of commissions is not without challenges—the original one was shut down by the lower courts due to technical reasons—the prototype in New York shows that it is practical and politically feasible. A prosecutorial conduct commission would be a solid compromise, since it takes away
the privilege of having unconditional protection, but also maintains the required amount of safety for prosecutors to do their jobs without fearing frivolous retribution. Those who are hesitant to support prosecutorial conduct commissions most likely believe that absolute immunity for prosecutors is doing more good than harm in keeping prosecutors safe from frivolous attacks and accusations. They may believe that immunity allows prosecutors to make the right judgments without having to face backlash. This might be the case if all prosecutors were infallible and perfect beings, but some aren’t. They make wrong judgments, both accidentally and deliberately, and it often results in undeserved shame, imprisonment, or even death for defendants. We as a nation need to change for the better and allow those who commit misconduct to be held accountable. Eliminating immunity for suppression of evidence and creating commissions and resources that will fight against prosecutorial misconduct are necessary adjustments to the criminal legal system. In response to recent instances of police violence, the police force’s right to qualified immunity is being reviewed and considered for abolition. Likewise, the court case Imbler v. Pachtman, which granted a prosecutor’s rights to absolute immunity, can also be reversed. As citizens, we have the right to peacefully demand change. We can contact local officials, vote for politicians who support criminal legal reform, and try different tactics until the government passes legislation to change the altered statute allowing immunity to continue. As our esteemed founding father Benjamin Franklin said, “It is better to let a hundred guilty men walk free than to imprison one innocent man.” We have long preached the idea that we should not risk jailing innocent people, but we have failed to live up to those ideals. America was not built on attempts to maintain the same twisted image of merciless
convictions, nor was it built on refusal to change. It was founded on the idea of equality and freedom for all, and if changing a law will free people, it is time to embrace it.
Bibliography Chemerinsky, Erwin. “Prosecutorial Immunity.” Digital Commons @ Touro Law Center, digitalcommons.tourolaw.edu/lawreview/vol15/iss4/23/. Davis, Angela J. “The Legal Profession's Failure to Discipline Unethical Prosecutors.” SSRN, 2 Dec. 2009, papers.ssrn.com/sol3/papers.cfm?abstract_id=1516003. “DOJ on Prosecutorial Misconduct.” NACDL, www.nacdl.org/Content/DOJonProsecutorialMisconduct. “An Examination of Deterrence Theory: Where Do We Stand?” United States Courts, www.uscourts.gov/federal-probation-journal/2016/12/examination-deterrence-theory-wher e-do-we-stand. Jabbar Collins - National Registry of Exonerations, www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3115. “Imbler v. Pachtman.” Legal Research Tools from Casetext, 2 Mar. 1976, casetext.com/case/imbler-v-pachtman. “Private: After 40 Years, Is It Time to Reconsider Absolute Immunity for Prosecutors?: ACS.” American Constitution Society, 29 Mar. 2019, www.acslaw.org/expertforum/after-40-years-is-it-time-to-reconsider-absolute-immunity-for -prosecutors/. “Prosecutorial Misconduct.” Legal Information Institute, Legal Information Institute, www.law.cornell.edu/constitution-conan/amendment-14/section-1/prosecutorial-misconduc t. “Prosecutorial Misconduct: DA Misconduct: CIP.” California Innocence Project, 20 May 2019, californiainnocenceproject.org/issues-we-face/prosecutorial-misconduct/. Ridolfi, Kathleen M., and Maurice Possley. “Preventable Error: A Report on Prosecutorial Misconduct in California 1997–2009.” Santa Clara Law Digital Commons, digitalcommons.law.scu.edu/ncippubs/2/. Robert Jones - National Registry of Exonerations, www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5096. “The Tolpuddle Martyrs.” Google Books, Google, books.google.com/books?hl=en&lr=&id=zwKRIBTLpIMC&oi=fnd&pg=PP1&dq=tolpud
dle%2Bmartyrs&ots=tj3NYGo7p0&sig=hWWPue8O-f-WrMeiiJ7AwlLJquU#v=onepage& q=tolpuddle%20martyrs&f=false. “‘Somebody Help Me Understand This’: The Supreme Court's Interpretation of Prosecutorial Immunity and Liability Under § 1983.” Northwestern Pritzker School of Law Scholarly Commons, scholarlycommons.law.northwestern.edu/jclc/vol102/iss4/6/.