FLPC and Harvard Food Law Society Publish 2014 Food Law and Policy Career Guide

The Harvard Food Law and Policy Clinic and the Harvard Food Law Society are pleased to announce the publication of the 2014 Food Law and Policy Career Guide.

The area of food law and policy continues to grow rapidly, with more employment opportunities for lawyers being created each year. This third edition of the Food Law and Policy Career Guide includes new information on opportunities at universities, government agencies, non-governmental organizations, law firms, consulting firms, as well as a list of food listservs that educate, promote discussion, and provide information on job opportunities in the field.

Career Guide_2014_Cover

As the area of food law and policy grows, new opportunities will arise that are not reflected in this guide. Please let us know about these opportunities so we can make next year’s edition even better.

The Newest Threat to the ACA: An Overview of the Halbig and King Decisions

On July 22, two different U.S Courts of Appeals issued conflicting opinions on whether an IRS rule, that holds that individuals purchasing private health insurance in both federal- and state-run exchanges are eligible for tax subsidies, is a valid interpretation of the Affordable Care Act (ACA).  At issue is language in the ACA that the plaintiffs’ argue limits such subsidies only to state-run exchanges. These rulings represent differing views on yet another challenge to the ACA.[i]

CHLPI has just published the article “The Newest Threat to the ACA: An Overview of the Halbig and King Decisions” which provides an overview of the Halbig v. Burwell and King v. Sebelius decisions and proposes next steps.

Read the article. 

[i] Since its enactment in 2010, there have been many challenges to the Affordable Care Act, including, most notably, NFIB v. Sebelius, in which the United States Supreme Court upheld the individual mandate but effectively made Medicaid expansion optional for states. More recently, in Burwell v. Hobby Lobby, the Supreme Court found that closely held corporations (such as Hobby Lobby), may request an accommodation (based on religious objection) to the requirement that employer sponsored insurance plans provide coverage, without cost-sharing, of all methods of birth control approved by the FDA.  Employees of such businesses will have access to birth control, but it is presently unclear how such coverage will be provided, as the government has yet to respond to this issue since the decision was rendered (the government can either expand the existing program that provides for such coverage for employees of non-profit corporations or it can create an entirely new program).  Despite these rulings, the ACA continues to provide health coverage to millions of Americans, with over 8 million people newly enrolled in health coverage through marketplaces, with an additional 4.8 million in Medicaid.

What About Rural? Food Policy Advocacy in Appalachia

by Austin Bryniarski*, Summer Intern, Harvard Food Law and Policy Clinic

I remember when I first learned about food deserts some years ago. I was at an urban farm in Milwaukee, minutes away from the city’s largest housing project, perplexed by the simultaneous cacophony of chickens and car alarms. To me, food access mainly concerned city dwellers. My understanding was basic: supermarkets planted themselves in middle-class neighborhoods, leaving low-income residents with precious few options for healthy and affordable food. In response to this alarming pattern, novelty ways of producing food — like urban agriculture — came to be.

Fast-forward to one week ago, four years after my food access amuse-bouche, and I’m presenting policy options to a group of people interested in increasing food access in their community. Unlike Milwaukee, though, the trains carried coal instead of people and the closest downtown was a couple of blocks long, at best. My supervisor, a fellow intern, and I traveled to Vanceburg, Kentucky and Athens, Tennessee to train community members in food policy advocacy and facilitate the creation of a food policy action plan. The focus of our presentations was to discuss ways to increase production and consumption of local agricultural products in rural Appalachia — a place stricken with food access issues that I admittedly, until this trip, had not thought a lot about.


Before the Tennessee strategic food policy advocacy workshop.

Rural America is rife with food insecurity. Like urban food deserts, poverty severely affects Appalachia, which makes it harder for residents to afford healthy foods and more challenging for grocers to ensure they’ll have enough of a demand to supply. Upon our arrival, we found out that one of two grocery stores in Grundy County, Tennessee had recently closed. Without grocery stores, rural communities depend on corner stores and fast food restaurants for nourishment because they are convenient and inexpensive, albeit unhealthy. (An excursion to Cracker Barrel — the ubiquitous, kitschy restaurant at every highway exit — proved this. I still reminisce about my chicken-fried steak, all slathered with gravy.)

Geographic distance plays a role in rural food access, too — the USDA considers rural Census tracts food deserts if at least a third of the tract’s population is more than ten miles away from a grocery store. Grundy and McMinn Counties in Tennessee contain food deserts under this definition. Complicating this metric is the fact that some residents may not be able to drive — especially in areas with low vehicle access, no public transportation, or with large elderly populations — further limiting the options of where someone can purchase food. The USDA’s Food Access Research Atlas shows that almost half of Lewis County is considered a “low vehicle access” area. We constantly heard about how schools throughout the region had had only one day of school in January because inclement weather made travel unsafe; the same hazards can prevent many from going out for groceries, too.

The situation in Appalachia carries a subtle irony. We city slickers often picture rural America as where we get most of our food from, red barn and spotted cow and green tractor, and thus question why food access would persist in such a place. The numbers, however, tell a different story about the places we travelled. According to the 2012 Census of Agriculture (the food and farm policy wonk’s Bible), commodity crops like hay, corn, and soybeans dominate agricultural production in Kentucky and Tennessee, while income from fruit and vegetable production is at the wayside, clocking in at anywhere from 2 to 4 percent of all production. Further complicating our myth, farmers are shifting away from the profession: since the last Ag Census in 2007, the number of farms dropped by 10 and 14 percent and the total land in farms dropped by 7 and 1 percent in Kentucky and Tennessee, respectively. Fewer farmers are farming less land. And what they are farming isn’t ending up in salad bowls or soup pots nearby.

These twin problems of food access — lack of consumption and lack of production — can have significant impacts on public health. The Centers for Disease Control (CDC) has reported that Appalachia is home to the highest rates of obesity and diabetes in the country. The groups we presented to, called the “Appalachian Diabetes Coalitions” (ADCs), are part of a program created by Marshall University in West Virginia, and they exist throughout the region to respond to and improve public health outcomes associated with diet-related disease. The ADCs that we worked with identified the issues of agricultural production and local food consumption as major priorities, so our report focused on three strategies for improving each issue.


Alli discussing policy options over the lunch break in Tennessee.

To improve production, we focused on policies the ADCs could advocate for that would incentivize farmers to grow more fruits and vegetables. For example, we looked at policies that allocate greater funding toward new farmers or farmers transitioning to food production from a different crop, for example through grants, low-interest loans, or tax incentives. We also provided examples of policies that improve training for farmers (either new farmers or farmers learning how to comply with food safety regulations, for instance) and policies that could more innovatively link farmers to farmland (aptly called “land-linking”) that Kentucky or Tennessee could emulate.

To improve consumption of local, healthy food, we focused on how local producers could best take advantage of local markets. I presented about local procurement by institutions, where a state policy could require schools or state agencies to purchase local produce (thereby supporting the local economy). We also discussed policies to make direct-to-consumer purchasing easier (like placing EBT machines at farmers’ markets) and ways to improve the distribution in the supply chain, like incentivizing the existence of food hubs and food processing facilities.


Austin leading the action plan activities in Kentucky.

After providing this menu of options and discussing how relevant each one would be in the counties we worked with came the “policy advocacy” activities that were well-received by the coalition members. For the time we had, we realized our original goal of unveiling a completed action plan by the end of the day was too ambitious, but we still went through the process that the ADCs will replicate on their own time after more carefully considering each component of their plans. We spent the afternoon evaluating policy goals, partners, and strategies for attaining those goals; defining what successful advocacy for that goal would look like; and anticipating challenges that would arise from advocating for a policy. With business cards exchanged and photos snapped, our workshops ended with an air of excitement and a palpable potential.


Kate Giessel, FLPC Summer Intern; Alli Condra, Senior Clinical Fellow, FLPC; and Austin Bryniarski, FLPC Summer Intern

It seems to me that the growing “food policy movement” has honed in on urban centers in recent years, mostly concerned with the wants and needs of people living in cities. Take farmers’ markets — policy has made setting up a farmers’ market in a cities around the U.S. easier, so that all it takes is a trip down the block to buy groceries directly from Farmer Brown. Everyone — from city and country — is happy. Right?

What about the rural folks living amongst those farmers? Where are they in the distribution chain, and how are they affected? When we talk about “improving sustainable agriculture,” which demographics are we improving it for? Appalachia made me realize that rural food politics are woefully uncharted, and in solving the problems of an interdigitated food system, rural food politics cannot be left out of the picture. While our interactions with the coalitions were limited to a two-day trip, the objective of our workshops was clear and started a conversation that would continue into the future. Equipping everyone — especially rural populations — with policy advocacy skills makes for a food system that is responsive to the needs and wants of all its consumers and producers.

Even so, rural and urban settings face different problems that will require different solutions — a lot of the examples we presented to the ADCs were city-centric, because that’s where a lot of food policy has been theorized and implemented. Bearing this in mind, we charged the groups to think of what bits and pieces might apply to their communities, even if Vanceburg, Kentucky looks entirely different from Milwaukee or Boston. We also clarified that our list was not exhaustive, because surely there are food policies we didn’t think of, or ones that do not yet exist. The gaps in rural food policy became clearer; if we are to have an inclusive and comprehensive movement, we’ve got to mind those gaps. I’m hopeful that the Appalachian Diabetes Coalitions we worked with are doing that. But it’s just as important for anyone who cares about food policy to be cognizant as well.


Crossing the tarmac to board the prop plane to Appalachia.

* Austin Bryniarski is a rising junior in Calhoun College majoring in Environmental Studies at Yale University. He is a Lazarus Global Food Fellow at the Yale Sustainable Food Project.

This post was originally published on the Yale Sustainable Food Project’s Tumblr site: http://ysfp.tumblr.com/post/92542815494/what-about-rural-food-policy-advocacy-in-appalachia.


The views reflected in this blog are those of the individual authors and do not necessarily represent those of the Center for Health Law & Policy Innovation or Harvard Law School. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

FLPC Publishes Guide to Urban Agriculture in Boston

The Food Law and Policy Clinic (FLPC) is excited to announce the publication of its guide, Urban Agriculture in Boston: Permits and Approvals Needed to Start Your Less than One Acre Ground-Level Farm. The guide to establishing ground-level farms smaller than one acre is the first in a series of guides that spell out the processes urban farmers in Boston will need to go through in order to start their operations in the City.

Boston Urban Ag Less than 1 Acre Cover-Cropped

In December 2013, the City of Boston approved Article 89 of the City’s zoning code. Zoning laws dictate what activities can happen in specified parts of a community (for example, generally commercial activities cannot happen in residential zones). Prior to Article 89, Boston’s zoning laws did not mention commercial urban agriculture, which meant that those activities were forbidden. Under Article 89, urban agriculture is now an expressly allowed activity within city limits. However, even with the new zoning law, there are other steps urban farmers must take before they can start farming. The FLPC worked with the City of Boston’s Office of Food Initiatives to create this guide to help farmers navigate those other requirements, such as design review and approval, building and use of premise permits, soil safety permits, and water requirements.

The guide is a working document and will be updated over the coming months. For any questions or comments, please contact Alli Condra, Senior Clinical Fellow, in the FLPC.

Journal Article: Speak Up! Watchdogging the ACA for People with HIV

Achieve Vol6No4 - Cover page imageRobert Greenwald’s article “Speak Up! Watchdogging the ACA for People with HIV” was published in Achieve (Volume 6, Number 4), a quarterly journal on HIV prevention, treatment, and politics.

Greenwald states in the article: “Many states not expanding Medicaid are in the South, which has high numbers of people newly diagnosed with HIV. Without Medicaid expansion, the number of people with HIV who have poor health outcomes will only increase.”

Read the article here.

Read the full journal edition here.

CHLPI presents at Diabetes State Briefing in the Massachusetts State House

by Qing Qing Miao, 2014 Summer Intern, Health Law and Policy Clinic

Sarah Downer, Clinical Instructor on Law, speaks about diabetes policy to Massachusetts senators, representatives, and legislative aids.

Sarah Downer, Clinical Instructor on Law, speaks about diabetes policy to Massachusetts senators, representatives, and legislative aids.

The Center for Health Law and Policy Innovation’s work on PATHS – a project targeting diabetes-specific health advocacy – has caught the attention of Massachusetts’s legislators.

Bringing a broad policy focus to the Together on Diabetes initiative funded by Bristol-Myers Squibb Foundation, PATHS collaborates with health care providers, legislators, and other stakeholders to provide policy guidance and technical support for legislative implementation. Its most recent publication is an exhaustive 150-page state report that provides evidence-based policy recommendations for North Carolina. 

Last Wednesday, clinical instructor and one of the authors of the report, Sarah Downer, presented at the Diabetes State Briefing held at the State House. The three-hour event was one of several educational conferences hosted by Women in Government (WIG), a national, non-profit organization of women state legislators that provides networking and leadership opportunities for members to address public policy concerns. WIG handles a spectrum of policy issues including (but not limited to) economic development, education, energy and environment, and health.

Issues of particular concern in Massachusetts include: increasing obesity rates (the largest risk factor for developing type 2 diabetes) within lower-income populations, the diminishing funds for diabetes research and lack of financial incentives for credentialed healthcare providers to serve the populations most hard hit, and the imperative to increase access to certified Diabetes Prevention Programs (DPP), which are targeted at lifestyle changes. Ms. Downer underscored the issue of rising diabetes rates within underserved populations, citing 2012 statistics that show Massachusetts for having the 4th highest childhood obesity rates for children ages 2-4. To address prevention in Massachusetts, presenters emphasized that programs focusing on lifestyle change, like the Diabetes Prevention Program, are crucial to positive health outcomes and decreased future health care costs.

“DPP is specifically for people diagnosed with pre-diabetes,” according to Ms. Downer. “State Medicaid programs should cover participation in this program because it is targeted, a proven and discrete intervention, and cost-effective.” A statistically rigorous study conducted by the Diabetes Prevention Program (DPP) Research Group concluded that the federal government could save $1.3 billion in a 10-year window if Medicare covered the program for prediabetics. Just within 3 years, DPP can reduce the incidence of diabetes within a population by 58%. A cost-benefit analysis further reveals an even greater impetus to implement it: the expense of administering DPP per capita is approximately $450. As the average annual cost of healthcare for someone with diabetes is about $9,000 greater than for someone without a diabetes diagnosis, health care payors will realize a significant financial benefit from investing in this prevention strategy.

For CHLPI and two other attending organizations – Joslin Diabetes Center and the American Diabetes Association – the State Briefing provided a unique opportunity to communicate their concerns to state legislators who have been key supporters of health-related bills, including bills to help patients access diabetes care. One of the attendees, Representative Gloria Fox (D, Seventh Suffolk), had submitted the bill H.1956 “ to establish a statewide program to promote prevention, diagnosis and treatment of Type 2 diabetes,” which is currently pending in Committee.

The other legislators at the conference, Senator Harriette Chandler (D, District of First Worcester), Senator Jennifer Flanagan (D, District of Worcester and Middlesex), and Representative Kimberly Ferguson (R, District of First Worcester) have proposed and helped pass bills related to healthcare financing and improving public health standards.

“Prevention is key,” concluded Senator Chandler as the conference adjourned. Organizing communities into “prevention for health” caucuses, planning infrastructure improvements such as walking paths, and implementing other “feet on the street” programs were but a few of the action items that the senator put forth as recommendations as Massachusetts strides towards diabetes prevention program in its next steps for disease mitigation.


The views reflected in this blog are those of the individual authors and do not necessarily represent those of the Center for Health Law & Policy Innovation or Harvard Law School. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

Can a For-Profit Corporation Exercise Religion?

By: Katerina Souliopoulos, 2014 Summer Intern, Health Law & Policy Clinic

This week, the Supreme Court ruled that closely held for-profit corporations, those corporations in which five or fewer individuals control the corporation, could exercise religion and bring successful claims under the Religious Freedom Restoration Act of 1993 (RFRA). Consequently, the Supreme Court held that closely held corporations might opt out of the contraceptive mandate of the Patient Protection and Affordable Care Act (ACA) if it violates their religious beliefs.

Some judges disagree with the ruling and rightly characterize it as one of “startling breadth.” In past cases, the Supreme Court has ruled that exceptions for religious beliefs must not significantly impinge on the interests of third parties, however, this week’s ruling allows the religious beliefs of five or fewer individuals to essentially override the health interests of about 14,000 female employees and their respective dependents working for Hobby Lobby Stores and Conestoga Wood who do not necessarily hold the same beliefs.

Under the ACA, health insurance plans are required to cover twenty FDA-approved contraceptives free of cost to beneficiaries as a component of comprehensive preventive health services for women. In mandating contraceptive coverage, the Government extended an Equal Employment Opportunity Commission (EEOC) ruling issued in 2000 stating that employer health plans failing to cover contraceptives violated the 1978 Pregnancy Discrimination Act.

Plaintiffs in this particular case—the owners of two for-profit corporations called Hobby Lobby Stores Inc. and Conestoga Wood Specialties Corp.—specifically objected to the ACA requirement to cover contraceptive methods that prevent the implantation of a fertilized egg into the uterus. According to the religious beliefs of the plaintiffs, four of the twenty FDA-approved contraceptives that function in this way are tantamount to abortion.

This week’s ruling allows closely held corporations such as Hobby Lobby Stores and Conestoga Wood to enforce their religious objections upon others, even when the scientific and medical community opines to the contrary. Ten medical groups led by the American College of Obstetricians and Gynecologists filed an amicus brief and noted that, “there is a scientific distinction between a contraceptive and an abortifacient and the scientific record demonstrates that none of the FDA-approved contraceptives covered by the Mandate are abortifacients.”

When the ACA worked its way through Congress, the Senate voted against a “conscience amendment” to the contraceptive mandate, which would have allowed any employer or insurance provider to deny these services based on its religious beliefs. By voting against the “conscience amendment,” Congress placed scientific consensus as well as the medical decisions women make with the guidance of their healthcare providers above the variable beliefs of insurance providers or employers.

Chief Justice Roberts attempted to narrow the ruling by specifically reserving it for closely held for-profit corporations; closely held corporations, with only five or fewer individuals in control of the business, would make it easy for future judges to ascertain precisely whose beliefs were at stake. Conversely, publicly held corporations (e.g., WalMart) are unlikely to bring successful religious exercise objections to laws because publicly held companies are controlled by large numbers of individuals. Thus, in a case brought by a large publicly held business, judges would not be able to ascertain whose religious beliefs were truly at stake.

However, the ruling does not limit the religious exercise claims that other closely held corporations could bring. For example, closely held corporations, which account for about nine out of ten businesses within the United States, could claim religious objections to covering a wide array of health services, such as blood transfusions, vaccines, or mental health services.

The ruling attempts to ease this concern by stating that its decision to allow the religious beliefs of a few trump the health interests of many deals solely with contraception; other health services, such as vaccinations, will be supported by “different interests.”

In the case of vaccinations, preventing the spread of widespread disease is indeed a compelling governmental interest. But what about the Government’s compelling interest to address the medical and social consequences of unintended pregnancy? What about the Government’s compelling interest to ensure the availability of medically appropriate contraception for all women, regardless of their financial status and ability to pay? Contraception helps to prevent unintended pregnancy and protects the health and well-being of women and their children. What this week’s decision truly says when it juxtaposes “different interests” with the health interests of women and their dependents, is that women’s interests are not compelling, in their opinion.

Moreover, the ruling leaves open the opportunity for other closely held corporations to bring suit claiming religious objections to eight, fifteen, or all twenty contraceptives under the ACA. In fact, this has already begun; after rendering this week’s decision, the Supreme Court ordered four lower court decisions each involving small, closely held businesses claiming religious objections to all forms of contraception under the ACA to be reviewed anew according to its decision in the Hobby Lobby case. Further, the Supreme Court has denied review of three cases involving closely held businesses objecting to all preventive health services under the ACA.

RFRA provides that the Government may not “substantially burden a person’s exercise of religion” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

The ruling assumes that providing access to contraceptives—even the four contraceptive methods that the plaintiffs in this particular case object to—is a compelling governmental interest, but, concludes that the contraceptive mandate is not the least restrictive means of enforcing this compelling interest. Specifically, the majority opinion points to the exception the Government has already fashioned for religious organizations and religiously affiliated nonprofits, such as churches and hospitals. Under the ACA, these religious entities do not have to provide their employees coverage for contraceptives; however, a third-party insurance provider must fill this gap in care by providing contraceptive services at no additional cost to the employees or the business. The majority opinion states that the Government can easily create the same exception for closely held for-profit corporations such as Hobby Lobby Stores and Conestoga Wood, ensuring that the mandate does not require them to violate their religious beliefs.

Another least restrictive option that the majority opinion poses is that the Government pick up the tab. Justice Ruth Bader Ginsburg criticized the majority’s suggested coverage solution asking, “Where is the stopping point to the ‘let the government pay’ solution,” thus passing the cost of coverage to taxpayers?

To date, this is the first time that the Supreme Court has ruled that a for-profit corporation may exercise asserted religious beliefs and receive an exemption from federal laws for those beliefs. It will be interesting to see how many companies will actually take advantage of this landmark decision and assert religious exercise exemptions, however, it is certain that the decision has opened a door for corporations across the United States to significantly impact their employees’ access to comprehensive health care.


The views reflected in this blog are those of the individual authors and do not necessarily represent those of the Center for Health Law & Policy Innovation or Harvard Law School. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

Mental Health Courts in Massachusetts: Would Stringent Probationary Terms Increase Program Compliance?

By: Marcus Alan McGhee, M.P.A., 2014 Summer Intern, Health Law and Policy Clinic

Prison or Treatment? This is abrain scan question not posed to most citizens, but one becoming more prevalent to offenders as courts attempt to reduce the size of their dockets. Courts are now offering offenders the opportunity to participate in diversionary programs, which would help them avoid the trappings of the criminal justice system all together. But, with the advent of any new program there are going to be periods where courts attempt to implement different methodologies to determine which are the most effective.

As mental health courts emerge throughout the Commonwealth, some judges are debating whether adopting the strict punishment standards of the Hawaii Opportunity Probation with Enforcement (H.O.P.E.) model will actually reduce reoffending. In the context of a mental health court the question becomes: does the H.O.P.E. approach comport with the less adversarial and more treatment guided focus of mental health courts? The answer is no.

The Hawaii Opportunity Probation with Enforcement (H.O.P.E.) model, created by First Circuit Judge Steven Alm of Hawaii in 2004, is an experimental probation program that emphasizes the delivery of “swift and certain” punishment when a probationer violates conditions of probation. This model provides a definite, but proportional, jail term for each violation of probation. The main focus is on reducing drug use and missed appointments.  Judge Alm asserts that this certain and exact punishment method fosters greater compliance with program participants because of its uniform and consistent application.

In the context of probation this program is a practical alternative to traditional probation. Traditional probation requires the offender to report to the probation office on varying days and times. Typically, this is with little regard to the offender’s access to transportation or funds to finance said transportation. As a result, an offender can obtain a violation for a relatively minor incident. Conversely, the H.O.P.E. model requires daily phone reporting where offenders are chosen randomly to appear at a predetermined time and location for drug testing.

The H.O.P.E. model would expand on the theory of traditional probation by allowing more offenders to participate in probationary programs while having fewer restrictions. This model, when coupled with existing probation programs, offers an additional option to those one-time, non-violent offenders who require less supervision. Instead of expending resources on excessive monitoring this program advocates for fewer restrictions unless, and until the offender violates probation (which is typically through a positive drug test).

Under traditional probation, minor infractions such as failing to call in at a specific time or arriving late to an appointment might be grounds for a violation. While the H.O.P.E. model does not expressly suggest such actions would give rise to a violation the contextual nature of the program suggests said restrictions would not be in place to begin with – thereby eliminating the possibility of that infraction. Consequently, this alternative program would expand the supervisory ability of the court, which is evident with Judge Alm’s court as he is able to monitor over 2,000 offenders at once.

However, in the context of a mental health court, the application of H.O.P.E. is not advisable. Traditionally, the court system operates as an in-and-out-system – you commit a crime, you are processed, charged, you either plead guilty or go to trial, and the case is done. Should you commit another crime, you are sent through the same process again. Mental health courts, however, were created to address the underlying causes of criminality, which in this case would be a mental illness, in an attempt to treat those issues and reduce recidivism.

The therapeutic approach assumed by a mental health court appear better equipped to offer treatment options that may uncover driving forces behind the repeated criminal offenses. Therefore, attempting to fuse a strict no-questions-asked kind of punishment system and a psychoanalytical model is oxymoronic. Although following poor behavior with negative reinforcements has proven effective, it is wholly inappropriate in a mental health setting where relapses need to be essentially built in to the program. This is especially true if you are dealing with a person who has been prescribed medication. What if the offender has a negative reaction to the medication? What if the dose is too low? What if it is too high? All of these questions must be factored into whether the offender had the ability to remain compliant, because only then is a court able to adequately determine whether the offender’s behavior is congruent with program objectives.

Moreover, the H.O.P.E. model is not focused on treatment. This program is more focused on conditioning the offender to behave in a certain manner or suffer the consequences. While treatment is an option to those who request it, it is not at the forefront of the programs purposes. Therefore, any efforts to combine the H.O.P.E. model of punishment with the therapeutic aims of a mental health court should be avoided; as such an action would be an affront to public policy.

Nevertheless, the H.O.P.E. model is not completely without a home; it can find refuge in traditional probation systems. However, this model should not be considered with specialty court models – especially mental health court programs. Adding the draconian punishment doctrine of the H.O.P.E. model to the more remedial goals of a mental health court extends H.O.P.E. beyond its original scope. Nonetheless, adding the H.O.P.E. model onto preexisting probation systems seems a natural progression in the fight toward prison overcrowding.


The views reflected in this blog are those of the individual authors and do not necessarily represent those of the Center for Health Law & Policy Innovation or Harvard Law School. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.