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The Price of Democracy: Evaluating the Excessing Fines Clause in Light of Florida Felon Disenfranchisement
Get PDFThis Note aims to show how the current test of proportionality is insufficient in combatting excessive fines, especially considering the racist and discriminatory practices of felon disenfranchisement. In Part I, this Note evaluates the background of the Eighth Amendment’s Excessive Fines Clause and its recent incorporation against the states. Part II will provide insight into the history of felon disenfranchisement in Florida and the fight for voter restoration through the passage of Florida Amendment 4. This section will then tell of the subsequent implementation of Florida Statutes section 98.0751 requiring ex-felons to pay all fines and fees associated with their sentences. Part III will provide the new and improved test for weighing the Excessive Fines Clause. This section will evaluate the old test of proportionality before suggesting the test be adapted to include the ability to pay and the weight of the right infringed. Finally, Part IV will apply the new test to Florida Statutes section 98.0751 and illustrate how the Court should rule in its evaluation of not only this bill but also in like circumstances. While this Note focuses particularly on the weight of the right to vote as compared to the excessiveness of the fine, this test can be broadly applied to any infringement of a right via fines, through the lens of proportionality.
This abstract has been taken from the author\u27s introduction
The Most Dangerous Branch of Science? Reining in Rogue Research and Reckless Experimentation in Social Services
Get PDFMost people are unaware how much public policy is either lacking in any empirical-research support or driven by bad research. Political actors motivated by ideology or donor/constituent demands propose new government practices—in areas ranging from policing to funding of treatments for gender dysphoria in youth to welfare-qualification rules—that will greatly impact people’s lives, and if anyone asks what basis they have for thinking the impact will be good, they can readily find some study to support their case. Especially when powerless populations are put at risk, neither the legislative process nor peer review in the publication process provides a real check on reckless experimentation and incompetent or corrupt research.
This Article argues that, at least with respect to social services for vulnerable populations, innovation and scientific study should be subject to constraints analogous to those for introduction of new drugs and vaccinations. These include pre-implementation assessment of evidentiary basis by panels of independent experts, piloting, and assurance of scientific rigor as well as protections for human “subjects”—a concept that, even in medicine, should be expanded, to include anyone substantially impacted by an experimental intervention and not just those whom researchers choose to study. In addition, agencies and research institutions must become more circumspect about who provides proxy consent for non-autonomous subjects.
As illustration of the problem and how the solutions might be implemented, the Article focuses on the repeated innovations over the past forty years in state response to child maltreatment, a pattern sure to continue indefinitely unless discipline is imposed. A voiceless population with no reliable surrogates, too often treated as distributable goods rather than persons, children in the child protection system present the perfect storm of conditions conducing to unethical behavior among policy makers and social scientists. In this realm, “fake news” destroys lives
Neuroscience and Criminal Justice: Time for a Copernican Revolution ?
Get PDFThe main purpose of this Article is to argue for a fundamental change in the conceptual orientation of criminal justice: from one based on concepts such as free will, desert, and moral responsibility, to one based on empirical science. The Article describes research in behavioral genetics, acquired brain injuries, and psychological traumatization in relation to criminality. This research has reached a level of development at which the traditional approach to criminality is no longer tenable and should be discarded. I argue that mental health legislation provides a model that could be adapted and applied to offenders
Unheralded and Transformative: The Test for Major Questions After West Virginia
Get PDFBefore the Supreme Court’s landmark decision in West Virginia v. EPA, the “major questions doctrine” was little more than a handful of cases that shared a few overlapping similarities. Although the Court explained in West Virginia that these “extraordinary” cases were all ones in which an agency had asserted “highly consequential power beyond what Congress could reasonably be understood to have granted,” the Court did not apply a consistent analysis across these earlier precedents. In other words, the doctrine lacked a framework to guide lower courts and litigants.
To our knowledge, no article written since West Virginia has explored whether the decision provides such a framework. In our view, it does. The Court applied a two-prong framework for determining when the major questions doctrine applies that asks whether the agency action (a) is “unheralded” and (b) represents a “transformative” change in the agency’s authority. West Virginia further holds that, if the doctrine applies, the reviewing court should greet the agency’s assertion of authority with “skepticism,” but the agency can overcome that skepticism by identifying “clear congressional authorization” for its action.
A close look at West Virginia and the alternative frameworks that parties and others urged on the Court in the West Virginia litigation also reveals a great deal about what the major questions doctrine is not. Most notably, many argued that the doctrine applies any time an agency’s action raises a question of economic and political significance, with litigants offering myriad, indeterminate factors of significance like cost, overall economic impact, number of affected persons, and degree of public and political attention. But the majority chose not to adopt a multifactor test. It instead applied a two-prong framework that appears designed to reduce, albeit not eliminate, difficult line-drawing questions over indeterminate measures of economic and political significance.
Some litigants also argued that, once triggered, the doctrine operates as a clear-statement rule, and some scholars now characterize West Virginia as adopting this approach. But the phrase “clear-statement rule” is conspicuously absent from the majority opinion’s legal analysis, which instead repeatedly refers to “clear congressional authorization.” The omission signals that a majority of the Court is not willing to call the doctrine a clear-statement rule
