Jennifer D Oliva

American veterans have been over-represented in the United States carceral system since at least the Vietnam War era. Prior to 1980, veterans who were wounded in the line of duty were entitled to hard-earned, service-connected disability benefits regardless of post-service involvement in the civilian criminal justice system. In 1979, the American media began running sensationalized stories detailing alleged abuse of the Social Security Disability Insurance (SSDI) program by notorious prisoners, including New York “Son of Sam” mass murderer, David Berkowitz. In response to the outcry over these well-publicized accounts of prisoner SSDI abuse, Congress enacted a law, 38 U.S.C. § 5313, that stripped certain veteran prisoners of their service-connected disability benefits. This Article argues that the federal law that strips disabled, justice-involved veterans of their service-connected benefits as the result of non-service-connected misconduct should be repealed. Section 5313 is unjust, unwarranted, and unproductive, for at least five reasons. First, Congress enacted the statute to realize federal cost savings at the expense of a politically and socially vulnerable population: disabled, justice-involved veterans. Second, the statute is grounded in faulty logic and a fundamental misunderstanding of the nature and purpose of the Department of Veterans Affairs (VA) disability compensation program. Third, Congress stripped disabled, justice-involved veterans of their service-connected disability benefits largely as a result of its erroneous conflation of VA disability compensation and SSDI benefits. Fourth, Section 5313 fails to take into account the evidence-based nexus between military service trauma and post-service mental health issues and related criminal behavior. Finally, revoking service-connected disability benefits impedes justice-involved veteran rehabilitation, reentry, and readjustment.

The widespread global transmission of SARS-CoV-2, the novel coronavirus that causes the disease COVID-19, has altered, injured, and ended the lives of numerous individuals across various communities and nations. It has been well-documented that certain long-neglected populations are particularly susceptible to COVID-19 severe illness and death and, as a result, have been disparately victimized by the pandemic. This Arizona State Law Journal Online Symposium, Vulnerable Populations in the Context of COVID-19, is a compilation of the work of diverse scholarly voices that aims to raise awareness about—and propose reforms to remedy—the legal and policy challenges that have—and continue to—perpetuate adverse health harms on the most vulnerable in our communities. Symposium contributors include international scholars, medical doctors, clinical law professors litigating on behalf of vulnerable clients, and distinguished senior and junior law professors. This collection of unique scholarly ...

This is the third in a trilogy of pieces that examine and evaluate the admission standards American courts apply to forensic “science” evidence proffered by prosecutors in criminal trials. The first two articles in the trilogy expose the criminal courts’ on-going practice of admitting false forensic evidence that is virtually always excluded in civil cases. They also advance a panoply of procedural and evidentiary solutions aimed at reforming this legally unviable discrepancy. Those solutions are court-centric insofar as they advocate for, among other things, open and early criminal discovery, pre-trial Daubert hearings to challenge evidence and experts, and court-appointment of qualified forensic science experts. This article takes a comprehensive look at the criminal courts’ treatment of scientifically rebuked bite mark identification evidence. Bite mark identification testimony is unreliable and, as a result, is responsible for dozens of wrongful convictions. Moreover, bite mark ...

Over the last several months, global innovators have developed a heterogenous array of “smart” technology protocols and applications aimed at tracking, tracing, and containing the spread of the novel coronavirus, SARS-CoV-2, which causes the disease COVID-19. The United States, which has left it to the states to acquire or build their own automated track and trace platforms, currently lags behind other countries. However, technology companies Apple and Google have announced co-production of a digital tracing platform for their phones. As this Chapter details, the United States lacks a comprehensive federal health data privacy law that protects the privacy of sensitive information collected and stored by digital contact tracking applications. The Chapter also explains how digital COVID-19 surveillance applications work, assesses their effectiveness from a public health perspective, and enumerates the legal and ethical issues they implicate. It concludes with proposals aimed at maximi...

Fire science, a field largely developed by lay “arson” investigators, police officers or similar first responders untrained in chemistry and physics, has been historically dominated by unreliable methodology, demonstrably false conclusions, and concomitant miscarriages in justice. Fire investigators are neither subject to proficiency testing nor required to obtain more than a high school education. Perhaps surprisingly, courts have largely spared many of the now-debunked tenets of fire investigation any serious scientific scrutiny in criminal arson cases. This Article contrasts the courts’ ongoing lax admissibility of unreliable fire science evidence in criminal cases with their strict exclusion of the same flimsy evidence in civil cases notwithstanding that both criminal and civil courts are required to operate under the same expert evidence exclusionary rules. Judges are capable of ensuring that the forensic science evidence they admit at trial is reliable in both criminal and civ...

Considerable attention has been devoted to the massive opioid multidistrict litigation (MDL), which consists of nearly 2,000 federal court cases consolidated before Judge Dan Polster in United States District Court for the Northern District of Ohio. Journalists have examined whether the plaintiff states, counties, municipalities, and tribes have pleaded viable legal causes of action against the defendant manufacturers, distributors, and retailers that stand accused of exacerbating the opioid crisis via misbranding, aggressively marketing, and failing to monitor, flag, and report suspicious shipments of prescription opioid pills. Pundit speculation has abounded regarding the scope of potential damages in play in the litigation given that experts estimate that “fixing” the crisis will cost more than $480 billion over the next decade. And the media has enthusiastically covered the nefarious allegations that have been leveled at the crisis’ most notorious villains: the wealthy Sacklers ...

This piece posits that certain structural dynamics, which dominate criminal proceedings, significantly contribute to the admissibility of faulty forensic science in criminal trials. The authors believe that these dynamics are more insidious than questionable individual prosecutorial or judicial behavior in this context. Not only are judges likely to be former prosecutors, prosecutors are “repeat players” in criminal litigation and, as such, routinely support reduced pretrial protections for defendants. Therefore, we argue that the significant discrepancies between the civil and criminal pretrial discovery and disclosure rules warrant additional scrutiny. In the criminal system, the near absence of any pretrial discovery means the criminal defendant has little to no realistic opportunity to challenge forensic evidence prior to the eve of trial. We identify the impact of pretrial disclosure by exploring the admission of expert evidence in criminal cases from a particular forensic disc...

Federal law has long deprived American veterans of certain fundamental legal rights enjoyed by non-veterans and attributable to veteran sacrifice. Federal case law, for example, denies veterans the right to bring an action in tort against the federal government to vindicate in-service injuries. And the United States Code deprives veterans of their right to robust judicial oversight of Department of Veterans Affairs (VA) service-connected benefit decisions. This pair of due process deprivations is compounded by the federal statute that prohibits veterans from exercising the fundamental right to counsel during the initial stage of the VA claims process. This Article examines the federal statutory scheme and pertinent case law that has long denied veterans the right to counsel throughout the VA veteran claims adjudication process, debunks the rationales underlying that law, and concludes by recommending that the federal government extend to veterans the right to counsel throughout the ...

American veterans have been over-represented in the United
States carceral system since at least the Vietnam War era. Prior to
1980, veterans who were wounded in the line of duty were entitled to
hard-earned, service-connected disability benefits regardless of postservice
involvement in the civilian criminal justice system. In 1979,
the American media began running sensationalized stories detailing
alleged abuse of the Social Security Disability Insurance (SSDI)
program by notorious prisoners, including New York “Son of Sam”
mass murderer, David Berkowitz. In response to the outcry over
these well-publicized accounts of prisoner SSDI abuse, Congress
enacted a law, 38 U.S.C. § 5313, that stripped certain veteran
prisoners of their service-connected disability benefits.
This Article argues that the federal law that strips disabled,
justice-involved veterans of their service-connected benefits as the
result of non-service-connected misconduct should be repealed.
Section 5313 is unjust, unwarranted, and unproductive, for at least
five reasons. First, Congress enacted the statute to realize federal cost
savings at the expense of a politically and socially vulnerable
population: disabled, justice-involved veterans. Second, the statute is
grounded in faulty logic and a fundamental misunderstanding of the
nature and purpose of the Department of Veterans Affairs (VA)
disability compensation program. Third, Congress stripped disabled,
justice-involved veterans of their service-connected disability
benefits largely as a result of its erroneous conflation of VA disability
compensation and SSDI benefits. Fourth, Section 5313 fails to take
into account the evidence-based nexus between military service
trauma and post-service mental health issues and related criminal
behavior. Finally, revoking service-connected disability benefits
impedes justice-involved veteran rehabilitation, reentry, and
readjustment.

This Essay posits that certain structural dynamics, which dominate criminal proceedings, significantly contribute to the admissibility of faulty forensic science in criminal trials. The authors believe that these dynamics are more insidious than questionable individual prosecutorial or judicial behavior in this context. Not only are judges likely to be former prosecutors, prosecutors are " repeat players " in criminal litigation and, as such, routinely support reduced pretrial protections for defendants. Therefore, we argue that the significant discrepancies between the civil and criminal pretrial discovery and disclosure rules warrant additional scrutiny. In the criminal system, the near absence of any pretrial discovery means the criminal defendant has little to no realistic opportunity to challenge forensic evidence prior to the eve of trial. We identify the impact of pretrial disclosure by exploring the admission of expert evidence in criminal cases from a particular forensic discipline, specifically forensic odontology. Finally, this Essay proposes the adoption of pretrial civil discovery and disclosure rules in criminal proceedings to halt the flood of faulty forensic evidence routinely admitted against defendants in criminal prosecutions.

This article operates at the intersection of privacy law, Fourth Amendment doctrine, and public health policy instigated by the United States drug overdose epidemic. Reputable reporting sources, public health scholars, and pundits frequently frame the ongoing American overdose crisis as a prescription drug overdose problem attributable to the overprescribing of opioid analgesics. This problematic narrative runs counter to the current epidemiological data, which indicate that the majority of American overdose deaths are now a result of illicit and polysubstance drug use and not prescription opioid abuse. The prescription-centric frame has nonetheless sparked the rapid rise of law enforcement and regulatory surveillance of prescribers and patients in the form of state prescription drug monitoring program (PDMP) databases. State PDMPs, which maintain and analyze significant data concerning every dispensed controlled substance, collect a stunning amount of patient protected health information (PHI). To put things in context, Americans filled 4,063,166,658 prescriptions at retail pharmacies in 2017 alone. PDMPs are largely criminal and regulatory law enforcement tools dressed up in public health promoting rhetoric. Under the guise of rogue prescriber, pill mill, and doctor shopper crack downs, the Drug Enforcement Administration (DEA) has made it a routine practice to self-issue administrative subpoenas to conduct warrantless, dragnet-style sweeps of the swarms of sensitive protected health data stored in state PDMP databases. This widespread law enforcement prescribing surveillance tactic, which reveals highly personal health information, including, among other things, patients' contraceptive histories, gender transition decisions, and HIV diagnoses, raises serious constitutional privacy concerns. The Supreme Court's recent Fourth Amendment decision, Carpenter v. United States, however, may limit law enforcement's ability to continue to access droves • Visiting Research Scholar, The Petrie-Flom

This article operates at the intersection of privacy law, Fourth Amendment doctrine, and public health realities triggered by the United States drug overdose epidemic. Reputable reporting sources, public health scholars, and pundits frequently frame the ongoing American overdose crisis as a prescription drug overdose problem attributable to the overprescribing of opioid analgesics. The problem with this narrative is that it runs counter to the current epidemiological data, which indicate that the majority of American overdose deaths are now a result of illicit drug use and not prescription drug abuse. The prescription-centric frame has nonetheless sparked the rapid rise of law enforcement and regulatory surveillance of prescribers and patients in the form of state prescription drug monitoring program (PDMP) databases. State PDMPs, which maintain and analyze significant data concerning every dispensed prescription, collect a stunning amount of patient protected health information (PHI). To put things in context, Americans filled 4,063,166,658 prescriptions at retail pharmacies in 2017 alone. PDMPs are largely criminal and regulatory law enforcement tools dressed up in public health promoting rhetoric. Under the guise of rogue prescriber, pill mill, and doctor shopper crack downs, the Drug Enforcement Administration (DEA) has made it a routine practice to self-issue administrative subpoenas to conduct warrantless, dragnet-style sweeps of the swarms of sensitive protected health data stored in state PDMP databases. This widespread law enforcement prescribing surveillance tactic, which reveals highly personal health information, including, among other things, patients' contraceptive histories, gender transition decisions, and HIV diagnoses, raises serious constitutional privacy concerns. The Supreme Court's recent Fourth Amendment decision, Carpenter v. United States, however, may limit law enforcement's ability to continue to access droves