Why Entrepreneurs Need a Feasibility Study before a Business Plan

January 29, 2015

By: Kathy S. Magee

Successful entrepreneurs are often described as tenacious, passionate, flexible, and natural risk-takers.[1]  They are visionary thinkers, confident, and tolerate ambiguity.  Even if an entrepreneur possesses all of these character qualities, a successful business venture requires a viable business concept and a realistic plan.

Student attorneys in the Entrepreneurship Clinic meet many clients who possess the characteristics of successful entrepreneurs but who lack a viable business concept or realistic plan to implement the concept into a working small business.  Clients, though passionate about their business idea, often do not think about the costs associated with starting and maintaining a business, marketing their business to consumers, state and city compliance and regulation issues, or the time investment that a small business requires.  As attorneys are bound by ethical rules in advising clients, attorneys should encourage clients to complete a feasibility study and business plan before assisting client in their small business venture.

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A feasibility study serves “as a filter, screening out ideas that lack potential for building a successful business, before an entrepreneur commits the necessary resources to building a business plan.”[2]  A business plan, on the other hand, is a “planning tool for transforming an idea into reality.  It builds on the foundation of the feasibility study but provides a more comprehensive analysis of the business.”[3]  While a feasibility study and a business plan overlap in some information and insight that they provide to the entrepreneur about his or her business concept, they each serve an important but separate purpose in the business start-up process.  Both can also serve to assist the entrepreneur with information gathering to assess the business concept, including legal compliance requirements, costs, and marketing.

For example, a potential client comes to the Entrepreneurship Clinic with a creative business concept for an ice cream sandwich business using a push-cart.  After reviewing compliance requirements for this type of business, it would be determined that the business idea is not viable because of state and city regulations of ice cream businesses.  Had the client created a feasibility study, the client would have learned that regulations prevent ice cream from being stored in a home, and that push-cart businesses are only allowed to sell pre-packed items.  Luckily, she had not made purchases for her business idea or invested other financial resources into the business that does not meet compliance requirements.  However, this is not typical of entrepreneurs who often make purchases for their business before determining viability through a feasibility study, then move forward solely based on their business idea.

Feasibility studies should be encouraged—even required—for entrepreneurs because they help determine the workability and profitability of a business venture.  A feasibility study that determines a business is not viable could save an entrepreneurship client money, time, effort, and resources of a failed business venture.  However, if a feasibility study determines that a business concept is viable, the entrepreneur can be advised effectively on how to move forward to create a business plan to implement the business concept into a working business venture.  As future attorneys, we can assist our clients in open discussions of feasibility of their business concepts.  We can encourage clients to conduct a feasibility study and complete a business plan before advising them to expend money, time, and energy into starting a business that is not in compliance with state laws or will not produce the profits the client wants to achieve.

[1] Joe Robinson. The 7 Traits of Successful Entrepreneurs. (Accessed October 9, 2014) http://www.entrepreneur.com/article/230350.

[2] Chapter 4: Conducting a Feasibility Analysis and Crafting a Winning Business Plan. http://www.prenhall.com/behindthebook/0132294389/pdf/Zimmerer_CH04.pdf at 123.

[3] Chapter 4: Conducting a Feasibility Analysis and Crafting a Winning Business Plan, p. 123. http://www.prenhall.com/behindthebook/0132294389/pdf/Zimmerer_CH04.pdf (Accessed October 5, 2014).


Professor Turowski Published in Renowned National Journal

January 26, 2015

One of our highly esteemed professors, Professor Carol Turowski, was recently published in The Champion.  The Champion is the renowned journal of the National Association of Criminal Defense Lawyers’ (NACDL).  Professor Turowski’s article, “Capital Cases,” provides insight on lethal injections and is very interesting read.  The following excerpt made us all want to keep reading more.  Congratulations, Professor Turowski!

“The recent spate of botched lethal executions in Oklahoma, Ohio, and Arizona has many legal experts in the country questioning whether methods used for carrying out these killings violate the constitutional prohibition against cruel and unusual punishment. Over the years, states have used various methods to carry out these deaths from public hangings, to the electric chair, to the gas chamber, to firing squads, and, starting in the late 20th century, to death by lethal injection. The majority of states that still allow capital punishment use the lethal administration of drugs because it is considered the most humane and cheapest method for killing a human being — or is it?”

Originally published in The Champion magazine. (c) National Association of Criminal Defense Lawyers.

 

The CRC would like to thank The Champion for allowing us to post this excerpt.  To find out more about The Champion and to access Professor Turowski’s article online, click here.  To download the article, click: Turowski Article 1 and Turowski Article 2.

 


EEOC Cracks Down on Consideration of Criminal Convictions in Hiring

January 21, 2015

By: Gabrielle Valentine

While reducing recidivism has been the driving force behind the Ban the Box initiative, the Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 (“the Guidance”) sheds a new light on the importance of employers following fair hiring standards.[1]  Although the Guidance is not binding on courts, it is of great significance to employers because many courts defer to the Equal Employment Opportunity Commission (EEOC), and companies not complying with EEOC regulations risk being sued by the EEOC.

Under Title VII of the Civil Rights Act, employers may not treat a current or potential employee differently than other current or potential employees on the basis of a protected class such as race, color, religion, sex, or national origin.[2]  This prohibits employers from engaging in activities such as hiring, firing, or demoting based on a protected class.  Title VII also prohibits employers from engaging in standard operating practices and procedures that, while seemingly neutral and non-discriminatory on their face, ultimately have the effect of discriminating against a particular protected class.

Prior to enacting the Guidance, the EEOC recognized that for the previous twenty years, the number of people having contact with the criminal justice system was significantly increasing in the working-age population.[3]  Specifically, the EEOC recognized that arrest and incarceration rates were particularly high for African-American and Hispanic men.[4]  The EEOC notes that African-Americans are arrested two to three times more frequently that others of the general population.[5]  While statistics predict that 1 in 17 white men will spend time in prison during their lifetime, 1 in 6 Hispanic men and 1 in 3 African-American men are expected to serve time in a prison.[6]  Thus, an employer may violate Title VII two ways: (1) if, based on race or national origin, he treats criminal history information differently for different applicants or employees, or (2) he has a practice of uniformly considering arrest and conviction records that, on its face seem non-discriminatory, but actually has the effect of excluding African-Americans and Hispanics from the workplace because of the statistically proven higher arrest and conviction rates.[7]

The EEOC Guidance provides that, for an employer to have a practice of considering an applicant’s criminal history without risking liability under Title VII, the consideration of applicants’ criminal history must be job-related and consistent with business necessity.[8] In determining whether the conviction is consistent with business necessity, the EEOC will consider the following factors: (1) the nature and gravity of the offense or conduct, (2) the time that has passed since the offense or conduct and/or completion of the sentence, and (3) the nature of the job held or sought.[9]

EEOC Pic

While the EEOC did not see much initial success in the enforcement of the Guidance, two recent lawsuits against BMW Manufacturing and Dolgencorp indicate EEOC’s interest in the enforcement of fair hiring standards.  In its suit against BMW, the EEOC alleged that BMW’s background check has a disparate impact on African-Americans by depriving them of employment with BMW and BMW’s logistic services providers.[10]

However, the EEOC faces much opposition because of its practice to conduct background checks when hiring for most positions.  In response to the EEOC’s complaint, BMW filed a motion to compel documents that describe the EEOC’s hiring process in relation to criminal background checks.[11]  The EEOC objected on the grounds that its hiring practices were not relevant to the issue of whether BMW’s practices were consistent with business necessity.[12]  The EEOC’s relentlessness in pursuing “violations” of Title VII in relation to criminal background checks marks the potential for a future of litigation.

Ultimately, the Ban the Box movement is nothing short of a win-win policy for everyone involved.  Not only does the community benefit from reduced recidivism, but following the Guidance shields employers from the risk of EEOC liability while greatly expanding the pool of qualified applicants since many applicants with a criminal history are deterred from even applying for a job.  Furthermore, the “business necessity” analysis applied by the EEOC shields the employer from negligent hiring claims because, for the most part, employers considering the nature of the offense, the time that has passed since the offense, and the nature of the job held or sought will not hire employees that pose a significant threat to the workplace.

[1] The Ban the Box initiative is a movement that asks employers to refrain from requiring individuals to disclose criminal convictions on initial applications. For more information about Ban the Box and the clinic’s work with the initiative please see the following: http://cslcivilrights.com/2014/03/13/i-am-not-my-record/.

[2] Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

[3] EEOC Decision No. 915.002, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (2012).

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Complaint, EEOC v. BMW Mfg. Co., LLC.

[11] Defendant’s Motion to Compel Production of Documents, EEOC v. BWM Mfg. Co., LLC.

[12] Brief in Opposition to Defendant’s Motion to Compel Production of Documents, EEOC v. BWM Mfg. Co., LLC.


Public Education: A Right Entitled to All

January 19, 2015

By: Brandon Pierce

Today was the day: Kevin’s first day of school.  Ten years old, gifted, and sitting with his pencil in hand—Kevin was ready.  The teacher came before the class and gave the instructions for the first assignment:

Gawd muwrein!  I clike fund ans he book? If topher largetwen to climbegan.  What limse anders plast forh.”

One fact I forgot to mention is that Kevin didn’t speak English.  He didn’t even speak Spanish, or any other well-known language in the United States.  Kevin was from a small Guatemalan village where one of over fifty ancient Mayan languages was spoken.  But there he was, in his first American classroom, receiving his American education.

Kevin is one of the over 68,000 unaccompanied minors that have entered the United States illegally since October 2013.  In November 2014, the U.S. Department of Education issued a fact sheet that outlines the basics about the illegal, unaccompanied minors’ rights.  As detailed in the fact sheet, once these minors have been apprehended in the U.S., they are put in the Department of Health and Human Service’s (HHS) custody.  While in HHS custody, the children are sheltered in government centers where they receive educational services.  Most children, like Kevin, are released into the United States under the custody of a family member or legal guardian (known as a ‘sponsor’).  While in the guardian’s care, these children attend classes in public schools, often times without knowledge of the English language.  But who would allow such a thing?  The United States Supreme Court would!

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America: Home of the Educated

“Denial of an education is the analogue of denial of the right to vote: the former relegates the individual to second-class social status; the latter places him at a permanent political disadvantage.” – Justice Marshall (Plyler v. Doe)

In June 1982, the U.S. Supreme Court Justices held in Plyler v. Doe that no state should constitutionally deny any person a free public education on account of his immigration status.  Put simply, undocumented children have the same right to a public education as U.S. citizens.

This issue arose out of restrictive Texas education laws.  With regard to undocumented children, Texas education laws mandated that the state: (1) withhold funds otherwise meant for educating children who were not “legally admitted” into the United States and (2) deny enrollment to those children in Texas public schools.

What did it mean to be “legally admitted” in the United States?  Pursuant to state policy, a person was legally admitted if he: (1) presented documentation demonstrating he was legally present in the United States, or (2) federal immigration officials confirmed such documentation was in the process of being obtained.  Ultimately, a group of students from Mexico that did not satisfy the “legally admitted” criteria filed a lawsuit to challenge the Texas education laws.  The case eventually made its way to the U.S. Supreme Court.  There, Texas’s education laws were held unconstitutional.

The Court based its rationale on the Fourteenth Amendment to the U.S. Constitution.  More specifically, the Court referenced a provision referred to as the “Equal Protection Clause.”  That clause states, “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”  Therefore, unaccompanied children in the United States are entitled to public education.

New York State of Mind

Give me your tired, your poor, your huddled masses yearning to breathe free…”                          - Emma Lazarus

Let us consider New York City (NYC): the proverbial gateway into America’s land of opportunity.  For the 2014-15 academic school year, NYC public schools have enrolled over 2,000 unaccompanied minors.  Like Kevin, many of these children have never had one English language course.  To combat this dilemma, NYC schools have implemented the English Language Learners (ELLs) program.  ELLs is a bilingual program that promotes the social and academic development of students who have recently arrived to the U.S. without proficient English skills.  Devora Kaye, NYC’s Department of Education spokeswoman, endorses such progressive actions, reaffirming the Court’s decision in Plyler v. Doe.  She asserts the department’s belief that “every child has a right to a great education, and we are committed to providing children who have escaped violence with the academic foundation and access to services that they need to establish a path to long-term achievement.”

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By contrast, not all of New York’s actions have shown a general consensus toward the notion of “education for all.”  New York Civil Liberties Union (NYCLU) reviewed approximately 20 percent of the state’s school districts.  Within those districts, the NYCLU discovered that the majority has assembled arduous barriers for undocumented students, thus, potentially preventing their enrollment.  Consider this: seventy-three New York school districts require birth certificates for enrollment.  (Nineteen of those districts require the “original” birth certificate.)  In response, the NYCLU urged state education officials to formulate a model universal enrollment form and list of permissible evidentiary documents.  This is meant to develop uniformity within the state’s education system.

What Does This Mean for Other Children like Kevin?

Analysts are certain that more unaccompanied children are coming, but what is unclear is how they will be welcomed.  This dilemma must be met with an unwavering commitment to U.S. values and standards.  Equality and justice have long been the staple of America’s uniqueness.  If we deny those considerations to all mankind, then we have given up our uniqueness in the world.  In sports language, we have forfeited.  In war language, we have surrendered.  In scientific language, we have become neutral.  In short, we have compromised our national value.  Let us reclaim our true selves through equality and justice because education is a right entitled to all!


A Group of Law Students’ First Asylum Case

January 16, 2015

By: Andres Salazar, Elham Rabiei, Maria Minis, and Tareva Marshall, Immigration Clinic Members

As law students, we all hear the same lecture from our professors: “Law school is not like the legal practice.”  One way to better understand the demands of legal practice is to participate in a legal clinic.  A legal clinic is an organization in a law school that specializes in a specific area of law and provides clients legal help on a pro bono basis.  A law school often has multiple legal clinics to provide pro bono representation in a variety of areas.  Law students apply to work in a legal clinic associated with their school, and work as the primary representatives of the clinic’s clients under the supervision of a professor.  We participated in the Charlotte School of Law Immigration Clinic.

During the Clinic, we were privileged to represent a family from Honduras who was applying for asylum in the United States.  Asylum is a case where the immigrant is asking the United States via the Immigration Court or the United States Customs and Immigration Service (“USCIS”) to allow him or her to stay in the country for humanitarian reasons.  The humanitarian reason is almost always that the immigrant is not safe in his or her home country because of some form of persecution.  Also, there must be no other safer alternative for the immigrant but to reside in the United States.

In our clients’ cases, they faced a threat of persecution, violence, and possibly death, because of their familial relationship to a witness who testified against a well-known gang member in Honduras.  This family member’s testimony was important in the case against the gang member, who was responsible for the deaths of three of our client’s relatives while they were in Honduras.  Our clients fled the country due to the fear that the gang would retaliate against the entire family for the one member’s testimony.

The family was referred to the Immigration Clinic by an immigrant’s rights group in North Carolina.  We split the case into two separate trials which were tried by two different Immigration Clinic student teams in front of the Charlotte Immigration Court.  The cases were split due to the different processing times of all the family member’s cases in the Immigration Court System, so that the entire family could obtain adequate representation by our clinic.  Ms. Elham Rabiei and Ms. Maria Minis tried the first case in April of 2014, while Mr. Andres Salazar and Ms. Tareva Marshall tried the second case in September of 2014.  We won both trials, and our clients were granted asylum.  Our clients’ trials were successful because of our hard work and because of the guidance from our supervising professor, Professor Fernando Nuñez.

About Asylum

When one hears the word “asylum” in the immigration context, it usually means political asylum, where an immigrant is persecuted by his or her own government due to the immigrant’s political beliefs.  However, there are other grounds for asylum, including persecution based on religion, race, nationality, or membership in a particular social group.  The legal definitions of persecution due to political beliefs, religion, race, and nationality are fairly set in law, so either the immigrant clearly meets the criteria or not.  The last category, membership in a particular social group, is constantly being re-defined by circuit courts and the Board of Immigration Appeals (“BIA”).  A particular social group can be almost anything.  It can be psychiatric patients in a mental hospital, people who identify as LGBTQ, family members of a witness who defies a gang member by testifying against the gang, and so forth.  The key point to the definition of a particular social group is that the membership has a defining trait that cannot, or should not, be changed.  If an immigrant chooses to use membership in a particular social group as the basis for his or her asylum claim, then the immigrant must demonstrate that he or she meets the definition of a member of a particular social group by providing credible testimony, documentary evidence, or both.

Relevance of Asylum Law

Asylum law is vital because it provides humanitarian relief for immigrants who are persecuted in their home countries.  For some immigrants, including the Immigration Clinic’s clients, the decision of a judge granting asylum is a matter of life or death.  United States immigration laws give the immigrant an opportunity to apply for, and prove, that asylum is necessary in his or her case.  It also reaffirms that our nation is a nation of immigrants, and that we as a country are still proud of our heritage by continuing the tradition of accepting immigrants in need.

In 2013 alone, the Executive Office for Immigration Review, which oversees the immigration courts, reported that 36,674 applications for asylum were filed in immigration courts around the country.[1]  Of these, 9,933 applications for asylum were granted, while 8,823 applications were denied, 1,439 were abandoned by the applicants, 6,400 were withdrawn, and 11,391 did not receive a decision for other reasons.[2]  These numbers do not include the many asylum applications that are filed before and decided by USCIS.  As evidenced by the statistics, even considering a broad definition of asylum, it is difficult to obtain.

However, asylum is still sought by many immigrants in spite of the difficulty because it provides them a protective status as an asylee within the United States.  This protective status ensures that once the immigrant obtains asylum, the immigrant will not be deported to his or her native country so long as the danger to the immigrant’s life exists in his or her native country.  It also allows for the immigrant to obtain a work permit so that the immigrant may start to rebuild his or her life here in the United States.  After residing as an asylee for a certain period of time, the immigrant may apply for lawful permanent residence—otherwise known as a green card—to reside in the United States indefinitely.

An asylum case is different than typical litigation in that the case moves relatively quickly.  One reason for this is that the asylum applicant must file for asylum within one year of arriving in the United States, as compared to other types of cases like personal injury cases, where the Statute of Limitations provides a three year deadline from the date of an accident to file suit.  Because of how Border Patrol and later the Immigration Court System processed the cases, each individual family member was in a slightly different stage of processing, which motivated our decision to split the cases up.  For example, we grouped a young couple and their son together since they had already completed the initial processing stage in January of 2014, while we grouped another woman, her adult son, her niece, and the niece’s two children together because some of them were still being processed by the Immigration Court System and Border Patrol at that same time. This gave the two teams slightly different timelines for preparing for trial.  The first team filed for asylum in January of 2014, and tried the case in April of 2014, with written closing statements submitted in May of 2014.  The second team filed for asylum in the beginning of April of 2014, and tried the case in September of 2014.

This fast-paced timeline demonstrates how an asylum case can be a very challenging experience, especially as a law student with class obligations outside of the clinic.  As with all litigation, we had to meet with our clients on a regular basis not only to prepare their case, but to also prepare them so that they would be ready to answer questions in the courtroom setting.  This preparation included numerous visits, sometimes multiple times in a week, to the clients over spring break, over summer vacation, and during the academic semester.  The first team had about three months to prepare its clients for court, write a forty page brief, and organize about four hundred pages of supporting evidentiary documents.  These evidentiary documents included details about the clients’ persecution as well as the country conditions of Honduras and declarations from witnesses detailing the persecution our clients suffered.  The second team had about five months to prepare its clients’ case, but there was an additional challenge: the government attorney facing them at trial was much better prepared due to all of the evidence provided in the first trial.  Both trials were challenging because of the time constraints, and we all were stressed due to managing the cases along with our full-time course load.

Rewards of Practice

In spite of the challenges and stress, the trials were one of the most rewarding experiences of our lives.  From developing a case theory to figuring out how to file proofs of service, these valuable legal skills taught us the mechanics of the Charlotte Immigration Court.  The clinic also taught us invaluable communication skills, including how to connect with, and interview, the client to find all the relevant facts of the case.

Additionally, the experience allowed us to forge friendships within the Immigration Clinic that will continue long after we graduate and enter the legal workforce.  We worked on the same family’s case, so we worked together closely for the entire semester.  We learned a lot about effective teamwork, and we became each other’s moral support when we felt overwhelmed by the pressure of the case and school.

The most important experience that we got out of working on this case was the knowledge that we were helping another human being.  This case got us out of the law school bubble and into what real life is like for lawyers and clients.  Hearing the stories that our clients told us, especially regarding their case, made an entire semester’s worth of immigration law much more meaningful to us.

In law school, you read the facts of a case that will be relevant to the class.  In the end, those facts are still just facts on paper.  There is no personal connection to the case, so it is difficult to relate to the parties who are arguing their case.  In the clinic, when you are working with real clients, those facts are no longer facts on paper, but words coming out of a real person’s mouth about their very real problem.  Suddenly, it becomes personal to you.  You are your client’s voice, and you must navigate the law to achieve the best result for your client.  Due to this personal connection to the case, now you can imagine how the law could help or harm your client, and how the fine details of a governing case that seemed so irrelevant in class could be the key to winning or losing. There is truly no substitute for working in a clinic—not only is it an opportunity to practice as a student attorney working on real cases, but it also helps those who need it the most.

We would highly recommend participating in a clinic while attending law school.  While it will require hard work, and some struggling to balance clinic work with homework, the rewards of learning to practice like a lawyer and help people at the same time will be more than worth it.

[1] http://www.justice.gov/eoir/efoia/FY2009-FY2013AsylumStatisticsbyNationality.pdf.

[2] Id.


The Low-Down on the Beat-Down: How Corporal Punishment is Damaging Our Children and Continuing Racial Discrimination

January 13, 2015

By: Carla Vestal

Events within the National Football League (NFL) have once again brought up an age old argument: How should parents and schools discipline children?  Within the past weeks, you may have heard a friend or family member say, “I was whooped and I deserved it,” “No-one is going to tell me what to do in my home with my kids,” “The Bible says, ‘Spare the rod. Spoil the child,’” or other similar remarks.

The effect of corporal punishment is far more than the immediate physical pain a child will feel.  Corporal punishment breeds a culture of violence, has been directly linked to mental and emotional health issues, and continues a legacy of racial discrimination in the South.

What is Corporal Punishment?

Corporal punishment is defined as, “the infliction of physical pain upon a person’s body as punishment for a crime or infraction . . . In a broad sense, the term also denotes the physical disciplining of children in the schools and at home.”  Spanking, whooping, whipping, and paddling are all forms of corporal punishment.  Often times this type of action is carried out by the adult using their hands, belts, switches, paddles, and, in extreme cases of abuse, electrical cords, spatulas, and wooden cutting boards.

What is the law?

All states allow parents to physically hit their child as long as the force used is considered “reasonable.”  When cases of corporal punishment become extreme enough to constitute abuse it is likely the Department of Social Services (DSS) or the court system will become involved.  In these instances what is “reasonable” varies by geographic region and community standards.

Currently, nineteen states allow for corporal punishment in the public school system.  Interestingly, the majority of these states are in the South and are commonly referred to as the “slave states” or the Bible Belt.[1]  In these states, corporal punishment is administered in a racially and ethnically biased manner which targets African American, Native American, and Special Education children.[2]

What do the statistics tell us?

Multiple national surveys of parents report almost identical results.  In one cross-sectional study from Child Trends, 77% of men and 65% of women agreed that corporal punishment is appropriate for children.  The results of a study conducted on North Carolina parents showed that 74% of North Carolinian mothers admitted to hitting a child under two-years old and 5% admitted to using corporal punishment on a child younger than three months old!

A comprehensive study conducted by the American Civil Liberty Union (“ACLU”) and Human Rights Watch concluded that in schools where corporal punishment is allowed, the punishment is administered in a racially biased manner.  African Americans make up roughly 17.1% of the public school population yet sustained 35.6% of reported corporal punishment.  Males were paddled more frequently than females, but African American girls were paddled at a rate of 2:1 to Caucasian girls.

Another alarming finding of the study dealt with students with disabilities.  Children who need special education services in Texas comprise only 10% of the student body yet received 17% of the beatings by school administrators.[3]

What is the science behind the spankings?

Empirical data analysis conducted over a twenty year span links physical discipline, in any form, to an increase in a variety of mental health issues which may not even develop until later in life.  Mood disorders, anxiety disorders, aggressive/violent tendencies, depression and bi-polar disease, and alcohol and drug addictions have all been linked with having been hit as a child.  It does not matter whether the corporal punishment rises to the level of abuse in a legal sense.  The injury to the child’s developing psyche occurs when hit with any force.[4]

In the school setting particularly, corporal punishment serves to legitimize violence.  Students have to suffer the humiliation and indignation of having other students know that they were forced to bend over a table or chair, sometimes with exposed buttocks, to get hit.  Peer-to-peer and student-to-teacher relationships erode.  As a result of the student’s lack of trust in educators, students withdraw academically.  This eventually leads to a higher drop-out rate in school districts that use paddling.

In either environment, corporal punishment changes the trajectory of brain development.  In layman’s terms, children who received corporal punishment have less grey matter in their prefrontal cortexes.  It is well-established that less grey matter in the prefrontal cortex is an indicator of mental and emotional psychosis.  This area of the brain is also responsible for cognitive development.  Researchers also have found a significant correlation between corporal punishment and lower IQ scores on standardized tests.  The end result of the study conducted by The National Library of Medicine and National Institutes of Health concluded that the grey matter children need to develop into mentally and emotionally healthy adults who exhibit self-control is being eroded with each strike of corporal punishment.  Corporal punishment has the exact opposite effect on children than what the discipline technique is intended to encourage.[5]

Why do parents and schools still use corporal punishment in spite of the scientific evidence against it?

The answer to this question has deep societal roots.  Many parents continue to spank and whip their children because, as children, they were subjected to corporal punishment themselves.  This is how the cycle of ineffective parenting and in extreme cases abuse is passed from generation to generation.

Elizabeth T. Gershoff, the nation’s leading advocate of alternative parenting techniques which do not include physically hitting a child, has concluded that corporal punishment is the result of lower educational levels in parents and geographic location.  Her research, which has spanned fifteen years, posits that corporal punishment in the South is a remnant of slavery and the concentration of conservative Christian religions.

When parents possess a college education, the use of corporal punishment in the home drops drastically from 55% to 38%.  This is due to the parents understanding the long term negative effects of spanking, having better coping techniques and using alternative methods of discipline.

Conservative Christian religions, which are heavily concentrated in the Bible Belt, often recite the “Spare the rod, spoil the child” mantra found in the Old Testament.  Focus on the Family, a conservative religion website, even goes so far as to teach parents how to hit their children without leaving evidence of bruising or welting of the skin and what type of “wooden spoon or paddle” to use.

http://www.fpnotebook.com/legacy/Peds/Prevent/CrprlPnshmnt.htm

Moving Forward and Repairing the Damage

As of now, corporal punishment will remain a choice for parents and schools.  As more of the public becomes educated about the adverse effects of physical punishment, parents will hopefully do some self-reflection and explore other avenues to help their children respect boundaries in the home and school.

Public school systems in the South should be open to review their policies on corporal punishment, to absorb the scientific data on its use in the academic setting, and examine the links between slavery and how societal norms across the country no-longer support paddling in schools.

It is a difficult endeavor to challenge parents to think differently about corporal punishment when they use religious convictions to justify its use.  However, this relates back to education and particularly scientific breakthroughs.  The often cited “Spare the rod, spoil the child” defense goes back to the time of Solomon (roughly 3,000 years ago).  Grey matter in brain development could not be monitored through MRIs 3,000 years ago as it is today.[6]

In the end, the use of corporal punishment will remain a heated debate among parents, educators, church groups and society in general. One thing is for sure: it is a personal choice that each person in the position to administer corporal punishment will have to weigh out in his or her consciousness.

If you feel that you have been subjected to extreme corporal punishment in the form of physical abuse, please contact your nearest police department immediately.

National Domestic Violence Hot-line: 1-800-799-7233

National Child Abuse Hotline: 1-800-4-A-Child (1-800-422-4453)

[1] States that allow corporal punishment in the public school systems include: Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas and Wyoming.

[2] For statistics applicable to North Carolina: http://www.carolinaparent.com/articlemain.php?Who-s-Getting-Spanked-in-N.C.-Public-Schools-3299.

[3] For a more in depth analysis of special education and corporal punishment see: https://www.aclu.org/impairing-education-corporal-punishment-students-disabilities-us-public-schools-html.

[4] http://www.psychologytoday.com/blog/the-me-in-we/201202/how-spanking-harms-the-brain

[5] For a meta-analytic review of how corporal punishment discourages positive long-term behavior and encourages a lack of self-realization see: http://www.apa.org/pubs/journals/releases/bul-1284539.pdf.

[6] Interestingly, Solomon’s son, Rehoboam, went on to become a tyrant of a ruler whose subjects revolted against him.  He exhibited signs of extreme aggression and lacked empathy for his people.  “Whereas my father laid upon you a heavy yoke, so shall I add tenfold thereto.  Whereas my father chastised (tortured) you with whips, so shall I chastise you with scorpions.  For my littlest finger is thicker than my father’s loins; and your backs, which bent like reeds at my father’s touch, shall break like straws at my own touch.”  (1 Kings 12).  This adds weight to the scientific evidence that we have today that hitting children leads to anti-social behaviors and mental disease.


Actual Justice

January 8, 2015

By: Kevin Friley and Cynthia Vogler, Criminal Justice Clinic Members

Most law schools require students to take courses in criminal law and criminal procedure in order to graduate.  What is not required is clinical experience. Clinical experience develops the actual skills required for lawyering. Criminal law teaches you the elements of common crimes, such as the mens rea and actus reus of crimes.  However, it does not teach you how the details of the incident and the nuances of each situation can change the perception of those elements.  Criminal procedure teaches the Fourth, Fifth, and Sixth Amendments to the U.S. Constitution.   Illegal searches, defective warrants, and failure to advise of Miranda rights are all the red flags we are taught to look for.  While this information is undoubtedly important, the procedural aspect that will most likely help your client is the one you learn in the courtroom, not in the classroom. These applications in the field are something you can learn through clinical experience.

Clinical experience prepares you for lawyering in a way that a classroom cannot.  All of the factors that come into play when you are dealing with real people, real crimes, and real life cannot be replicated in a traditional educational setting.  The fear and anxiety that settles upon you in a courtroom when your client’s fate hangs in the balance is indescribable. Although in the Criminal Justice Clinic, we represent clients charged only with misdemeanors, these crimes can result in jail time, significant costs, and a criminal conviction that could forever damage their career and educational opportunities.

Procedurally, the defense attorney and the client are at the mercy of the prosecutor, who wields a significant amount of power.  The prosecutor decides what charges to bring initially and what charges to dismiss.  The prosecutor also controls the docket, thereby controlling the procedures of the courtroom. In a law school classroom, you are not taught the intricacies and responsibilities of each of these players in the criminal courtroom.

Although criminal law and procedure are essential courses for understanding basic legal concepts, real-world advocacy extends well beyond burdens of proof and the statutory schemes professed in the classroom.  As aforementioned, the roles played by others within the justice system are frequently glossed over in the classroom but are often the keys in successfully resolving cases.  Simply put, the personalities and motivators of the arresting police officer, the prosecutor, and the judge can prove just as important in defending a client as the governing statute or Constitutional provision.

Our first case of the semester had an interesting fact pattern, to say the least.  The client, Joan English,[*] was in her early twenties, unemployed, with a history of minor mental issues.  On the day Ms. English was taken into custody, the police had been dispatched several times.  Ms. English was having one of those days where everything just gets to you.  Everyone has had one of those days, when your friend from high school gets your dream job; your relationship with your boyfriend ends unexpectedly; everything is just going wrong.  That was Ms. English’s day.  She decided to go out for a bicycle ride.  She was weaving in and out of traffic, acting erratically, and several people called the police to report her strange behavior.

Ms. English returned home.  However because of her erratic behavior, the police encouraged her mother to have her committed.  This process involved going to the magistrate’s office and having an involuntary commitment order entered, as Ms. English’s mother felt she was a danger to herself and had no choice.  An involuntary commitment is a civil process as opposed to a criminal one.  In this case, Ms. English was committed to Carolinas Medical Center.  Before her mother could do that, Ms. English left her home again, this time to go to a retail shopping area.  She stole a basket assortment of candies, which she later discarded in the parking lot.  The police were again dispatched regarding Ms. English’s bizarre behavior.

The police officers came upon Ms. English in the retail parking lot and engaged her in conversation.   Ms. English’s mother completed the necessary paperwork at the magistrate’s office and the officers were instructed to pick up Ms. English and deliver her to the local hospital.   Ms. English was told she was not going to jail, but instead going to a mental hospital to get help.  The officers tried to handcuff her and she stiffened up.   Eventually, the officers did get the handcuffs on her and then attempted to put Ms. English in the police car.  Ms. English refused to comply, stiffening her body and resisting being put into the car.  The officers did succeed in getting Ms. English into the car and to the hospital without any injury or further incident.  Ms. English was in the local hospital for eleven days.  She attended therapy sessions that included coping skills and anger management, and was provided medication for her diagnosed mental illness.  Upon her release, Ms. English continued outpatient care and therapy.   Ms. English was arrested after her release for the charges of larceny and resisting a public officer, stemming from the incidents on the day of her commitment to the hospital.

In the English case, the characteristics of the arresting officer and two district attorneys ultimately determined when and how the case was disposed of.  From the outset, the client and her family expressed an understanding that the arresting officer was sympathetic towards her situation. A brief conversation with the officer on the client’s trial date confirmed this.  The officer understood that Ms. English had been experiencing some degree of mental distress at the time of the crime, and that her actions were likely the result of that distress rather than any criminal intent.  In this respect, the officer believed a criminal penalty would not benefit Ms. English.  The officer, without being prompted, stated that he was not opposed to dismissing the case.  When Ms. English’s case was ultimately dismissed, the assistant district attorney (ADA) deferred to the officer before making this decision.

Had this police officer not been compassionate and legitimately concerned with what was best for Ms. English, the case would have proceeded to trial.  The officer could have easily stood his ground and contended that Ms. English’s actions were within the meaning of the relevant statutes and that she should submit to the consequences of her actions.  Instead, the officer was thoughtful and understood what was best for Ms. English.  He wasn’t concerned with which actions were legal and which were illegal, he was concerned with the best outcome for the parties involved.  This is what justice is really about, rather than harsh, indifferent results that can fracture peoples’ lives.

Prosecutors and police officers play a substantial role in when and how a case is disposed, as prosecutors have a great deal of discretion.  How a particular prosecutor chooses to exercise her discretion can influence the outcome of a case far more than a statute or fact.  For instance, some prosecutors are focused primarily on efficiency in an effort to dispose of more cases, and thereby make quick decisions based solely upon the nature of the charge itself.  Others, however, are interested in the smaller details of the crime and are more invested in what outcomes are just.  We were fortunate Ms. English had a thoughtful prosecutor and police officer, both of which led to a just result.  Redefining justice as more than seeking a conviction and exacting a pound of flesh can be the first step in a serious dialogue with communities about the true meaning of justice.

[*] The name has been changed to protect the confidential attorney-client relationship.


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