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Juvenile Death Sentence Lives On... Even after Roper v. Simmons
Full text linkThis article begins with a discussion of the Supreme Court’s decision to abolish the death penalty as applied to individuals convicted of crimes they committed before they turned 18 and proceeds with a detailed exposition of worldwide standards of juvenile sentencing. Part I of this note briefly discusses the history and purposes of the juvenile justice system in the United States. Further, there is a general discussion on the constitutionality of life without parole sentences, which provides an overview of the inconsistencies between Federal and State Courts’ approaches when sentencing juveniles to life without parole. Part II analyzes the international law on the rights of juveniles by using several landmark documents and treaties, such as the Convention on the Rights of Children. This leads to a survey of juvenile justice systems around the world, including case law and reform instituted as a result of the international conventions explicitly banning juvenile LWOP sentences. This discussion recognizes the importance of the world’s view on the issue of juvenile LWOP and how such human rights principles should serve as persuasive authority to America. Part II concludes by using a step-by-step approach to analyze and explain how juvenile LWOP sentences in America violate customary international law. Part III asserts and explains why juvenile LWOP sentences in violate the Eighth Amendment’s prohibition of cruel and unusual punishment. This section includes a detailed analysis of the Supreme Court’s decision in Roper and addresses the Court’s recognition of international standards on human rights issues. Part IV reviews the policy behind punishment, society’s interest in punishment, and how that relates to juveniles. The analysis of the Roper decision and some common sense ideas lead to the conclusion that juvenile LWOP sentences are excessive and ineffective deterrent for juveniles. Further, this notes takes a detailed approach examining and concluding that such sentences violate the principle of rehabilitation, impose excessive retribution, and violate constitutional principles prohibiting excessive punishment. Part V advocates the position that reform is necessary to the juvenile justice system insofar as juvenile LWOP sentences must be abolished. It proposes ideas as to how this reform may come about – mostly through the judicial and legislative branch. Simply leaving the reform up to the state or national legislature is not acceptable because state and federal judges are authorized and compelled to act in a manner consistent with human rights standard. The article concludes by recognizing that the Supreme Court must eventually resolve the inconsistency among the state courts and this resolution must take into consideration the unique nature of the global concurrence on the matter as the Court did in Roper. The Court is likely to hold that juvenile LWOP is unconstitutional because it is cruel and unusual punishment and it violates treaty obligations and/or customary international law
Searching for Remedial Paradigms: Human Rights in the Age of Terrorism
Full text linkNine years after the unprecedented terrorist attacks on September 11, judicial response to various governmental and individual methods of combating terrorism remains deferential and restrained. The courts have heard at least three types of cases brought by advocates for three distinct groups: the alleged perpetrators of terrorism; the victims of terrorist attacks; and third party humanitarian groups. Implicit in the practical question of how to deal effectively with terrorism is the broader consideration which Congress, the President and others must also address: how to respond to the terrorists’ extreme human rights violations without violating international human rights norms and international humanitarian law
Connecting the Dots: Forming a Uniform Voter Identification System Through Established Law
Full text linkThe 2002 Help America Vote Act requires election officials to request photo ID for first time voters who register by mail. Some states took this a step further and required all voters to present photo ID in order to exercise the franchise. These laws have attracted a great deal of attention recently because of the belief that these laws disenfranchise voters. However, what is needed is a uniform system that allows voters access to the ballot and also protects the integrity of the ballot. This note argues that all Congress has to do is connect the dots in several federal election laws to fashion a cardless system that would allow poll workers to easily identify voters while limiting the possibility of disenfranchising voters
Self-Inflicted Wounds: How Military Regulations Prejudice Service Members
Full text linkThis Article discusses two important facets of Military Regulation and veterans law. First, this Article explores how the Uniform Code of Military Justice treats veterans accused of committing self-injury. Thus, there is a prohibition on , including criminal prosecution of, attempted suicide, which this Article argues exacerbates the issues which many of our brave servicemen and women face upon returning home from combat, often carrying the burden of mental disorders such as post-traumatic stress disorder. Second, this Article delves into Air Force Regulations, which prohibits termination, without cause, once an officer reaches the rank of Major and has served at least fourteen years. Despite this codified prohibition, the Air Force has been terminating these individuals, without cause, and denying them their accrued retirement benefits. This Article argues that this practice is at best prohibited by Military Regulation and at worst unconstitutional
Contesting a Contestation of Testing: A Reply to Richard Delgado
Full text linkDan Subotnik responds to Richard Delgado, Standardized Testing as Discrimination: A Reply to Dan Subotnik, 9 U. Mass. L. Rev. 98 (2014)
Goals vs. Deadlines: Notes on the VA Disability Claims Backlog
Full text linkDrawing primarily on policy considerations, social science research, and the relevant statutory and doctrinal frameworks within veterans benefits law, this article argues that Congress should subject the U.S. Department of Veterans Affairs (VA) to a clear and enforceable deadline for making initial eligibility determinations on claims for service-connected compensation. Despite widespread media coverage of delays in VA’s adjudication system and countless oversight hearings and congressional proposals for reform, this simple idea – to impose a hard deadline upon VA has either been overlooked entirely or drowned out by a preoccupation with other types of legislative responses to the VA claims backlog. This article seeks to enter the debate about remedying the backlog from a slightly different vantage point than the perspectives used to date, one that focuses on the nature of deadlines – including the psychology of deadlines, the enforcement of deadlines, and the role deadlines might play in promoting perceptions of agency fairness and legitimacy. Along the way, the article draws on VA’s own data to reveal the long-standing gap between the agency’s timeliness goals and its performance. The reform proposed here is admittedly modest in many respects; it is far from a cure all for delay. But it does reflect certain fundamental values that should animate any reforms to the VA system: expanding enforcement tools, applying lessons learned from past VA failures, and treating veterans with dignity
Good Cause is Bad News: How the Good Cause Standard for Record Access Impacts Adult Adoptees Seeking Personal Information and a Proposal for Reform
Full text linkThere are many hurdles that adult adoptees face when seeking access to personal information contained in original birth records or adoption proceedings. One such hurdle is the widely-used good cause standard, which requires adoptees seeking information to show good cause to obtain access. This standard is problematic primarily for its vagueness. Very few jurisdictions that use this standard define “good cause” in any meaningful way, and case law interpreting good cause statutory language is inconsistent at best. Although it is meant to protect the privacy interests of all parties in an adoption proceeding, the good cause standard acts as a barrier to those seeking information about their history. While recognizing that progressive legislative solutions are ideal, this Note proposes to shift the burden in jurisdictions where the good cause standard still applies; courts should be required to show good cause to keep records sealed, consistent with other areas of records access and first amendment jurisprudence
Massachusetts Has a Problem: The Unconstitutionality of the Tax Deed
Full text linkThe predominant method for collecting delinquent real estate taxes in Massachusetts is the use of the “tax deed” as authorized by Chapter 60, Sections 53-54. Under the authorized procedures, each municipality’s tax collector can execute and record a deed that transfers fee simple title to the real estate to the municipality subject to the taxpayer’s statutorily created redemption right. If the redemption right is or cannot be exercised, all of the taxpayer’s rights in the property, as well as other’s rights created by encumbrances such as mortgages, are terminated by the foreclosure process provided for in the statute. Importantly, the municipality does not obtain title to the taxpayer’s land by foreclosure; instead, it merely frees itself of any remaining claim by the taxpayer. The problem with the tax deed procedure is that it fails to provide both procedural and substantive due process to the taxpayer. Procedurally, although adequate notice is given, title to the taxpayer’s real estate is taken by the government without a hearing. Based on an unreviewed decision by a municipal tax collector, the taxpayer immediately loses title to the land. Substantively, by using a tax deed, the municipality engages in the taking of property without providing reasonable compensation. The value of the land taken for payment of the tax debt is not evaluated in the context of the debt owed. Empirical evidence shows that the property’s value significantly exceeds the debt owed, giving the municipality the ability to collect almost fifty dollars for every dollar of delinquent real estate tax owed, on average. Each year, approximately $56,000,000 is unconstitutionally appropriated from taxpayers. This Article will explore these problems
A Conspiracy of Life: A Posthumanist Critique of Appoaches to Animal Rights in the Law
Full text linkNear the end of his life, Jacques Derrida, one of the most influential philosophers of the twentieth century, turned his attention from the traditional focus of philosophy, humans and humanity, to an emerging field of philosophical concern, animals. Interestingly, Derrida claimed in an address entitled The Animal That Therefore I Am that,
since I began writing, in fact, I believe I have dedicated [my work] to the question of the living and of the living animal. For me that will always have been the most important and decisive question. I have addressed it a thousand times, either directly or obliquely, by means of readings of all the philosophers I have taken an interest in. . . .
Derrida’s insistence that the question of the animal has always been the focus of his work reflects an interesting turn in philosophy at the end of the twentieth century, where the primacy of the human was rightfully being challenged, and the lives of animals were being considered on their own terms. Increasingly, the shift in focus from the primacy of the human to a more thoughtful consideration of animals has moved outside of just philosophy into other academic fields. These developments have been reflected in the emerging interdisciplinary field of posthumanism. Posthumanism, inclusive of all disciplines, seeks to shed the legacy of liberal humanism and the primacy of the human and instead consider all the interests of those that the human shares the world with (including animals, plants, technology, et cetera). Curiously however, while posthumanism has had an impact in most disciplines, outside of a few scholars, it is absent in the legal field (both in academia and in practice). Where the status of animals in the law has been challenged, it has largely been done through arguments derived from the legacy of liberal humanism. The two most significant challenges to the status of animals in the law have been mounted by the Nonhuman Rights Project in the United States, and the Great Ape Project, which has primarily been successful in New Zealand and Spain. Both projects have sought to expand legal rights to hominids, though each has adopted different strategies. The Nonhuman Rights Project has sought to use arguments within existing legal paradigms to force the courts to recognize chimpanzees as “persons,” whereas the Great Ape project has intentionally avoided court (for fear of setting unfavorable precedents) and favored pressing change through legislation. Ultimately however, both projects are thoroughly rooted in liberal humanism and advance their arguments through proximity claims—the idea that certain animals, in these cases, apes, deserve legal consideration because of their similarity to humans.
This paper is an interdisciplinary comparative analysis of the Nonhuman Rights Project’s failures in the United States and the Great Ape Project’s success in New Zealand. The success of the legislative approach of the Great Ape Project demonstrates the need to approach these arguments outside of the courtroom to avoid hostile judges, philosophical legacies, and archaic precedents. However, the Great Ape Project does not go far enough in expanding the rights of other beings as it relies on emphasizing similarities with humans as the sole reason for extending rights, leaving other beings, even higher order mammals like dolphins, without inclusion— and a real possibility that any such inclusion would forever be cut off. Therefore, this paper proposes the need for a posthumanist foundation for pursuing the rights of other beings through legislative means
Recommendations for Improving Firearms Vetting in Massachusetts
Full text linkThe United States is in a state of conflict over the ability to obtain firearms as well as their use in highly publicized mass shootings. On December 14, 2012, Adam Lanza obtained several firearms that were lawfully owned by his mother, but were improperly secured. Lanza killed his mother that morning and then drove a short distance to the Sandy Hook Elementary School in Newtown, Connecticut where he murdered twenty-six people, many of whom were small children. Lanza eventually turned a gun on himself before being confronted by responding officers. Though mass shootings are often headlines in this country, the vast majority of misused firearms by the mentally ill are tragically used in suicide. The lessons of these examples must be used to augment current firearms policy in an effort to reduce the availability of firearms to those suffering with afflictions that make them ill equipped to have access to them. Though the Commonwealth of Massachusetts asks pointed questions in these areas regarding the fitness of the potential license holder, it collects no data whatsoever regarding other full-time household members where a firearm may be kept, nor what measures the licensee takes to ensure its security. This Article illustrates a policy, grounded in facilitative principles, designed to reduce access to firearms by those mentally incapable of handling them or those with current substance addictions. Key components to the solution’s success should rely on increased vetting of the licensee’s environment and where lawfully owned firearms will be stored, in combination with assessing the risk factors of having been hospitalized for mental health, drug dependence, or alcohol dependence. This recommendation is merely an expansion of questions already used in the current Massachusetts firearms licensing application and would produce additional factors that a licensing official may consider when determining the suitability of an applicant. It is important to note that this would not be an outright prohibition for a licensee, which would likely be constitutionally impermissible. This Article concludes by reemphasizing the importance of giving licensing officials more information to consider in an effort to lower the risk of lawfully owned firearms ending up in the hands of the mentally ill or violent