Prop 303

Prop 303 – Right to Try

Nathan Erickson – Sandra Day O’Connor College of Law

The recent November 4th election in Arizona changed many things in Arizona. One bright spot for social justice was the overwhelming passage of Proposition 303 – the Right to Try.

The legislation gives terminally ill patients the right to try investigational medicines that have passed the first phase of FDV approval but still are still years from outright approval for general use. The law means terminally ill people don’t have to wait for new drugs to make their way through the long approval process. They can work with their doctors to gain access to promising investigational and new medicines now.

While the FDA does have a process that allows people to seek permission to take the drugs that have not yet been approved but have passed the first round, this process is long and onerous. Many people do receive FDA permission under this “compassionate use” doctrine, but there are many documented cases of people dying while waiting on their approval. The process takes around 100 hours to complete and only around 1,000 terminally ill patients received the expanded access per year.

With the new law, Arizonians can circumvent the FDA and go directly to the people working on the treatments. This allows the patients to connect directly with the most knowledgeable people to help them the most, and advances the medical science behind treatment for the terminal disease.

Critics of the law say that it gives false hope to terminally ill patients because it does not create a way for people to successfully obtain the therapies. Some insurance companies will not pay for the non-approved treatments or other roadblocks to treatment could exist. But proponents of the law simply respond that Americans should not have to ask the government for permission to attempt to save their own lives how they think is best.

Social Justice is advanced by the passage of the right to try law because this old impediment on healthcare freedom for those who need it most is now abolished. Terminally ill individuals are a group of people who society must be aware of and compassionate towards. Giving these people the ability to utilize scientific advancements, raise the level of their hope, and sometimes, unfortunately, simply go down swinging, is the best thing we as a community can do to help them.

The honorary chairman of the Prop 303 campaign was 13 year old Diego Morris. Diego had a rare form of bone cancer and left the country to get an experimental treatment in the UK which cured him. Diego says that hope was the most important thing to him and giving hope to others is what he thinks the right to try law will do.

Kathy Thompson, the mother of ALS patient Josh Thompson, says that when asking doctors about unapproved drugs she would get answers that the drugs might cause harm, but that was a risk that the terminally ill are often willing to take. Ted Harada, a survivor of ALS because of an experimental treatment, appreciates that the FDA is the gold standard for drug approval and safety, but asks if when you or a loved one were facing mortality, would you be willing to settle for the silver standard?

Overall social justice is about freedom, equality, and community. These are the principals that drive the right to try law. But even more so, social justice is about hope and when you have a terminal illness that is hard to come by. Passing this law gives Arizona a brighter future, a more just future and a more hopeful future.

A Summary of the Impact of Genetic Research into Behavioral Characteristics for the Criminal Justice System

A Summary of the Impact of Genetic Research into Behavioral Characteristics for the Criminal Justice System

By Lauren Marshall, 3L – Sandra Day O’Connor College of Law

Over the past several decades, advancements in genetic research have had far-reaching implications in many fields, such as healthcare, insurance, and the law.  While there is still much to be discovered, the knowledge of the scientific community has grown exponentially in many areas of genetic research.  One of the greatest achievements in recent decades has been the Human Genome Project.  The Human Genome Project began in 1990 and was completed in 2003.[1]  During this time frame, scientists mapped and sequenced roughly 20,000 human genes.[2]  Not only did The Human Genome Project make impressive discoveries during its operative period, but it also continues to fuel new and innovative genetic research and biotechnology.[3]   For instance, in the years since The Human Genome Project, 1,800 disease genes have been discovered, 2000 genetics tests are available to consumers and physicians to learn more about genetic risks, and nearly 350 biotechnology products are presently being tested in clinical trials. [4]  The data from this project has the potential to diagnose and fight disease, change human psychology and physiology, and ultimately allow each person to better understand his or her genetic makeup and its potential hazards.[5]

The results of the Human Genome Project have already caused a ripple effect into the current criminal justice system.  For instance, it is common to allow the utilization of Deoxyribonucleic acid (“DNA”) fingerprinting as evidence at the trial level, because DNA fingerprinting is a valuable tool used by law enforcement and prosecutors, allowing them to connect defendants to the scene of the crime with reasonable certainty.[6]  Furthermore, genetic research has led many to believe that individuals have criminal tendencies and are unable to be rehabilitated.[7]  As a result, many jurisdictions created a “three strikes, you’re out” system for sentencing and enhanced detention for known sexual predators.[8]  In addition, research has shown strong genetic correlations between conditions like anti-social behaviors, alcoholism and the propensity to conduct criminal activities, which in turn have been offered by defendants to attempt to exonerate their behavior in whole or in part.[9]

As the criminal justice system seemingly moves forward into a more “geneticized legal system,” the value of genetic evidence has the potential to allow for a better understanding of the facts of the crime and the criminal behavior of the defendant.[10]  Additionally, it is possible that genetics will be a large factor in determining the culpability of a defendant; the individual’s genes could be used to understand behavioral propensities and the appropriate scope of legal responsibility.[11]

Many studies have shown a strong correlation between the genetic makeup of an individual and his or her criminal predisposition.  Specifically, research on twins and adoptees has revealed that one’s genes play a major role in determining whether an individual will engage in criminal activity.  In addition, genetic disorders such as MAOA deficiencies have been shown to increase the likelihood of aggression and criminal conduct.  However, all of these studies have demonstrated that environmental factors also substantially influence an individual’s susceptibility to partake in crime.  Since current research emphasizes the importance of the environment, I do not believe a complete link will be found between genes and criminal predisposition.

Nevertheless, as research continues to advance the understanding of the role between genes and behavior, the criminal justice system will be faced with examining the implications this information will have in the courtroom, both procedurally and legally.  In light of the character evidence restriction under the Federal Rules of Evidence and right to privacy under the Fourth Amendment, it is unlikely that the prosecution will be able to request or use genetic testing for criminal predisposition during the guilt phase, unless the defense first opens the door to such evidence.  Furthermore, the admissibility of criminal predisposition evidence will be evaluated under the Daubert standard.  Since the current understanding of such evidence is highly debated, it is possible that a court may deny its admission during the guilt phase due to its lack of reliability.

Moreover, advancements in genetic criminal predisposition research could have a profound impact on the foundations of our current criminal justice system.  One major impact will be on the theory of culpability, which states that an individual can be held accountable because he acted under his own free will.  Since genetic predisposition evidence has the capability to partially or completely negate the notion of free will, courts will likely deem it inadmissible in determining guilt until a complete link can be shown between a gene and specific conduct.  On the other hand, such evidence has been allowed as a mitigating factor during the penalty phase of a trial, as it relates to the defendant’s character and ability to control their actions.  Another major impact would be on the current theories of punishment.  It is likely that evidence of genetic criminality would preclude the use of retribution, rehabilitation and deterrence, as these theories rely on culpability and a criminal’s ability to modify their behavior.  Until science advances genetic treatment, incapacitation will be the only available form of punishment to protect society from genetically predisposed criminals.

[1] Mark A. Rothstein, The Impact of Behavioral Genetics and the Law and the Courts, 83 Judicature 116, 117 (1999).

[2] Overview of the Human Genome Project,

[3] Human Genome Project, Nat’l Inst. of Health, (Mar. 29, 2013),

[4] Id.

[5] Steven I. Friedland, The Criminal Law Implications of the Human Genome Project: Reimagining A Genetically Oriented Criminal Justice System, 86 Ky. L.J. 303, 306 (1998).

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at 307.

[11] Id.

Extending the Batson Challenge to Classifications Based on Sexual Orientation

Extending the Batson Challenge to Classifications Based on Sexual Orientation


By Haley Wester Schmidt, 3L – Sandra Day O’Connor College of Law



Traditionally in the process of jury selection a so-called “Batson challenge” is an objection to a peremptory strike made by opposing counsel based on a potential jurors race, gender, or ethnicity. In January the 9th Circuit Court of Appeals extended this protection to potential jurors based on sexual orientation as well.

SmithKline Beecham brought suit against Abbott Laboratories (Abbott) regarding a licensing agreement and the pricing of certain HIV medications. During jury selection a member of the venire made reference to his partner as a “he”. Both the potential juror and the presiding judge used the pronoun “he” several times. Counsel for Abbott questioned the juror about the prescription drugs at issue. Abbott’s counsel later exercised one of its strikes against this juror. SmithKline’s counsel raised a Batson challenge alleging the juror had been struck because he “appears to be […] homosexual.”[i] SmithKline’s counsel expressed concern that because the case involves AIDS medication, “the incidents [sic] of AIDS in the homosexual community is well-known, particularly gay men.”[ii] The judge is unsure if Batson applies to civil matters and if it does will it apply to sexual orientation. Furthermore, Batson is concerned with an entire group being excluded not a single member and there is no way to know who in the venire is or is not homosexual. Finally, the judge urges Abbott’s counsel to state a reason for the strike aside from the one alleged by SmithKline. Abbott’s counsel declines to comment on reasons for the strike except to deny knowing whether or not the juror is gay.

The trial concluded with a mixed verdict. Both Abbott and SmithKline appealed. SmithKline contends that a new trial should be granted, in part, because of Abbott’s alleged unconstitutional strike to exclude a juror because of his sexual orientation.

The 9th Circuit explains that the Batson analysis is three-part: 1) the challenger must establish a prima facie case of intentional discrimination; 2) the striking counsel states a nondiscriminatory reason for the strike; and 3) the court determines if purposeful discrimination was present.[iii] The district court judge did not apply the appropriate legal standard, therefore the 9th Circuit steps through the Batson analysis.

The 9th Circuit draws the conclusion that SmithKline proved their prima facie case because the struck juror was the only one who identified himself as gay and the drug in question has been widely discussed in the gay community, a point raised by SmithKline’s counsel. Furthermore, Abbott’s counsel failed to provide a nondiscriminatory justification for the strike during the voir dire process. The Court determined that Abbott still did not offer “any colorable neutral explanation for the strike[.]”[iv] Finally, the Court turns its attention to whether Batson prohibits strikes based on sexual orientation.

The privilege of peremptory strikes is subject to the guarantees of the Equal Protection Clause.[v] The Supreme Court reasoned in Batson that strikes based on race undermine confidence in the fairness of the judicial system. In J.E.B. v. Alabama, the Supreme Court allowed peremptory strikes to any individuals or groups subject to rational basis review.[vi] The 9th Circuit has historically applied rational basis review to sexual orientation classifications, but after re-evaluating the holdings in Witt v. Department of the Air Force[vii] and the Supreme Court holding in Lawrence v. Texas[viii]and States v. Windsor[ix]the 9th Circuit determined that “heightened scrutiny be applied to equal protection claims involving sexual orientation.”[x]

Finally, regarding the applicability of Batson the 9th Circuit says:

As illustrated by this case, permitting a strike based on sexual orientation would send the false message that gays and lesbians could not be trusted to reason fairly on issues of great import to the community or the nation. Strikes based on preconceived notions of the identities, preferences, and biases of gays and lesbians reinforce and perpetuate these stereotypes.6 The Constitution cannot countenance “state-sponsored group stereotypes rooted in, and reflective of, historical prejudice.” J.E.B., 511 U.S. at 128, 114 S.Ct. 1419.

The history of exclusion of gays and lesbians from democratic institutions and the pervasiveness of stereotypes about the group leads us to conclude that Batson applies to peremptory strikes based on sexual orientation.”[xi]


Because a Batson violation was found to have occurred the case was remanded for a new trial.

[i] SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d at 475 (9th Cir. 2014)

[ii] 475

[iii] Kesser v. Cambra, 465 F.3d 351, 359 (9th Cir.2006)

[iv] SmithKline, 740 F.3d  at 479

[v] Batson v. Kentucky, 476 U.S. at 89, 106 S.Ct. 1712 (1986)

[vi] J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994)

[vii] Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir.2008).

[viii] Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003).

[ix] States v. Windsor, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013).

[x] SmithKline, 740 F.3d  at 481

[xi] SmithKline, 740 F.3d  at 486

Energy Poverty is a Global Problem

Energy Poverty is a Global Problem

by Nicole Fries, 2L, Arizona State University

In his recently released book, The Moral Challenge of Dangerous Climate Change; Values, Poverty, and Policy, Professor Darrel Moellendorf addresses how energy poverty will prevent any discernable change toward a cleaner environment.[1] According to Prof. Moellendorf, 1.4 billion people around the world still lack electricity. Including those individuals, 2.7 billion people still burn biomass as their main source of energy. That includes everything from plant matter and wood to animal matter, which is the largest source of bio-energy in Africa. These sources of energy are not as detrimental to the atmosphere as coal-burning might be, yet they are tremendously hazardous to the health of the individuals living in these locations because of their extremely high rate of indoor air pollution. This above average reliance on bio-mass as an energy source is defined as energy poverty.

However, Prof. Moellendorf also introduces what he called the anti-poverty principle for climate change; that policies and institutions should not impose avoidable costs of climate change on the global poor if it will make poverty eradication more difficult.[2] The premise of his book is that climate change has traditionally been a first world problem because the struggle for survival has prevented any poorer countries from taking part. As the levels of the world’s carbon emissions only rise, there is pressure from the G8[3] for poorer countries to meet these energy goals too.[4] But is that just? These countries that are world leaders have made little headway on their UN Millennium Development Goal to halve extreme poverty around the world by 2015.[5]

The African Union has attempted to assist the poorer countries among them by creating a plan to diversify energy on the continent.[6] Michelle Barnard suggests that a successful shift to nuclear energy in the region will only work if a regional management organization is set up to regulate. It also seems likely that nuclear energy development in Africa, or other similar regions around the world with high levels of energy poverty, will only succeed if funding is pooled on a regional basis to make development happen.

Moellendorf suggests instead that climate change policy is dangerous insofar as it imposes costs that make poverty eradication slower, putting undue burdens on poorer countries that don’t have available alternatives. He argues that organizations such as UNFCCC should, by necessity, align their goals with those of reducing poverty because otherwise they will unduly burden countries with high rates of energy poverty.

Yet how can the United States attempt to lead these restructured energy goals when nearly 15% of US utility customers live in fuel poverty.[7] Due to the federal nature of many poverty assistance programs, states and municipalities control much, if any, legislation and programming related to combating fuel poverty. Additionally, Prof. Power points out that the majority of members of Congress are from the Sun Belt, areas that have no requirement for assistance in affording fuel in the winter months. Specifically, the actual definition of fuel poverty does not align with the definition of poverty used in most US legislation. In 2005, 36% of fuel-poor households had incomes higher than the Federal Poverty Guideline and 5% were ineligible for the federal Low-Income Home Energy Assistance Program (LIHEAP).[8] Currently, fifty-one regulatory bodies set residential rates and the standards for consumer protection. In rural areas where energy poverty is especially acute, electricity is distributed through non-regulated cooperatives. This means that those regulatory bodies rarely even touch the US citizens who need their energy policies most.

Many utilities and regulators still believe that energy poverty is a temporary state that can be remedied by short-term economic assistance plans. Yet the highest rate of energy poverty year after year, is in rural areas because it is expensive to transport fuel sources far distances, fuel sources are irregular, and income is significantly lower than in urban areas.[9]

Dr. Power suggests that the US should look to current United Kingdom policies to combat energy poverty, however their rates of energy poverty are actually much higher than ours. As of 2011, 24% of households in the UK were in fuel poverty.[10] Yet the UK defines households within fuel poverty differently than the US, or at least more consistently nation-wide. To qualify as fuel-poor a household must have higher than the national average energy costs and after paying them, have a household income below the national average.[11] This definition seems to imply a broader inclusion of households to have such a high rate of fuel poverty. Or perhaps it implies that the UK has a higher baseline to qualify as poverty-stricken.

Whichever it may be, it seems both unfair to expect other countries to modify their energy sources when they are in a position to use only those sources which they can afford, and unfair to expect citizens in the US to support national or international policy goals that push their energy needs even further from the national agenda then they already are.

[1] Moellendorf, Darrel. The Moral Challenge of Dangerous Climate Change. Cambridge Publishing. Apr 2014.

[2] Id.

[3] A forum of governments of the leading industrialized nations in the world, including Canada, France, Germany, Italy, Japan, Russia, United Kingdom, United States, and some would argue the European Union.

[4] 1992 United Nations Framework Convention on Climate Change (UNFCCC).

[5] United Nations Millennium Development Goals. 2000.

[6] Barnard, Michelle. Nuclear Energy in Africa – Regional Initiatives for Expansion. International Bar Association, Journal of Energy and Natural Resources Law. Vol. 32, No. 1. Feb. 2014.

[7] Power, Dr. Meg. Fuel Poverty in the USA; the Overview & the Outlook. Energy Action Issue No. 98. Mar 2006.

[8] Id.

[9] Id.



Moral Blame and Retribution in a Scientific World

Moral Blame and Retribution in a Scientific World

by Nicole Fries, 2L – Sandra Day O’Connor College of Law

When someone has a brain injury and commits a crime, how much should we blame them and how much should we blame the injury?  There are two conflicting theories of criminal law behind this statement, that of retribution and that of utilitarianism.[1]  Retribution argues that when an individual acts in a way to injure the state (which we assume any act considered criminal does) they should be punished in equal measure.  Specifically, this is more of an eye-for-an-eye theory of punishment.  Utilitarianism has other purposes including, rehabilitation, prevention, and incapacitation, ultimately attempting to prevent more crime in many ways.

Nita Farahany works in this field of neuro-law and determined that a steady increase of cases where defendants are implicating these types of defenses.[2] Essentially, something in my brain made me do it.  In 2011-12, in written opinions alone there were 300 such cases.[3] However, these statistics only relate to written opinions and only those cases in which the lawyers or defendants understand that this may be a viable justification or excuse.  I do not use these words lightly; in criminal law both have very specific meanings.  If your brain tumor was found to be a reason for the ways you acted and you weren’t otherwise culpable of the thoughts that led up to your bad act, you may be exempt from punishment because this justification trumps your crime.  An example of this would be participating in a crime as a hostage.  Excuse is even broader.  Excuse says that what you did wasn’t a bad act at all; you didn’t have the intent necessary for the crime.  Self-defense is such an example, because it allows the bad act of assault because you had a different intent in mind: self-protection.

But how could we ever prove such a thing?  Farahany suggests that an electroencephalography (EEG), or electronic brain scan could be used to show that your brain is abnormal in this circumstance.[4]  But how do we define abnormal?  Radio Lab put forward this hypothetical: a deaf person can’t hear a child screaming in a burning building, so we wouldn’t hold them responsible for the child’s death if it dies.[5]  In the same way, if you are emotionally deaf, there is just no neural reaction to save a child, should they be responsible? Damage to the brain would be just as physical as damage to the ear to make one deaf.

David Eagleman says technologically, we are not advanced enough to apply these theories.[6]  For example, how do we know what exactly that brain tumor does to the part of the brain it is putting pressure on, or what it means when an unexpected part of the brain responds to pleasure or fear.  And if we suggest that it implies one is not responsible for all kinds of criminal acts we hold others responsible for, are we as a society prepared for what that means?  This could mean an individual who has done something our society disapproves of – imagine something particularly heinous to you – will get away, dodging punishment.  Or think of it in the reverse: our technology and understanding of the brain is not perfect. What if you were the one accused of a crime that you were not mentally responsible for, and yet nothing could be found to explain why you acted as such?  In that situation, we’d opened the door for the fact that there could be another reason for your actions, yet couldn’t find anything.

There is another issue: where do we draw the line?  Sure a brain tumor seems like a likely disturbance to greatly affect an individual’s brain; but what about something smaller that we aren’t completely sure how it would affect you?  And if we make this landmark shift in proof of guilt, what about all of the defendants that have come before, who’s guilt was decided before we had any science to be able to examine the “blame” of their brains with?

One suggestion by Eagleman is to focus on the probability of future recidivism, or how likely they are to re-offend.[7] This algorithm is already used by the criminal justice system when dealing with sex offenders. The corrections office reads through the defendant’s record and with give values to certain information of the crime.  Developed by criminal psychologists, these numbers attempt to tell whether this individual is still going to be a danger to the public. Dr. Amy Phenix says that these numbers are accurate about 70% of the time.[8]

Yet Radio Lab brings up that there is an upside and a downside to allowing numbers to determine a defendant’s future.[9]  The upside is that they will not be biased by extraneous factors, such as attractiveness of the defendant as juries have been known to do. But the downside is that human nuance, such as mercy, cannot be invoked to the benefit of a defendant.

Radio Lab final suggestion was that it is a small jump from preventing recidivism to preventing crime.  It sounds attractive, a safer world, etc.  However, our criminal justice system has largely held it is inappropriate to punish or confine someone because of his or her possibility of future crime.  Yet continued incarceration because of recidivism in sex offenders sounds attractive, so why don’t we already do that.  And it is because of these two competing criminal law theories. Utilitarianism is great and important to the safety of society, however retribution is the oldest system of societal maintenance in the world. And an eye-for-an-eye judicial system does appeal to our nature, so should we leave it all behind?

[1] Criminal Law : Cases and Materials 6th Ed. Dressler, Joshua and Garvey, Stephen P.  American Casebook Series. 2012.

[2] Nina Farahany Curriculum Vitae.

[3] Forget About the Blame?  Radio Lab Season 12 Episode 2.  Sept. 12, 2014.

[4] Id.

[5] Id.

[6] Dr. David Eagleman Curriculum Vitae.

[7] Forget About the Blame?  Radio Lab Season 12 Episode 2.  Sept. 12, 2014.

[8] Dr. Amy Phenix Curriculum Vitae.

[9] Forget About the Blame?  Radio Lab Season 12 Episode 2.  Sept. 12, 2014.