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Towards a Governance Model of Ungovernable Prisons: How Recognition of Inmate Organizations, Dialogue, and Mutual Respect Can Transform Violent Prisons in Latin America
Get PDFStudy of informal organizations in prisons in Latin America focuses on the exercise of control over daily life inside detention centers, including the extreme example of ‘self-government’ of and by those incarcerated. In Latin America, self-government occurs in the dangerous context of severe overcrowding, limited resources and poor services, aggravated by high levels of violence and illicit markets within prisons. The combination is highly volatile and poses grave dangers to the lives and wellbeing of detainees, authorities and often the larger society beyond prisons. This article considers one pioneering effort to overcome the unfettered control of prison by detainees: the Peruvian Prison Reform Process of 2011-2019. The article examines the situation before the ReformProcess, one marked by high levels of violence, riots, escapes and inmate self-rule. The transformation of Peruvian prisons considered here managed to end self-government, replacing it with a system based on peaceful dialogue, recognition of legitimate representatives of inmate organizations, and restoration of order and non-violence. The ReformProcessreduced and eliminated prison riots, shootings, the taking of hostages and strikes by workers. The Reform Process led to a drastic reduction in the number of violent deaths and prison escapes. Based on the success of the Peruvian model and a review of other experiences in Latin America, the article proposes four models of prison management. For ungovernable detention centers, it proposes recognition of legitimate inmate organizations, dialogue and respect for human rights as the most effective means of reducing violence and lawlessness.
Study of informal organizations in prisons in Latin America focuses on the exercise of control over daily life inside detention centers, including the extreme example of ‘self-government’ of and by those incarcerated. In Latin America, self-government occurs in the dangerous context of severe overcrowding, limited resources and poor services, aggravated by high levels of violence and illicit markets within prisons. The combination is highly volatile and poses grave dangers to the lives and wellbeing of detainees, authorities and often the larger society beyond prisons. This article considers one pioneering effort to overcome the unfettered control of prison by detainees: the Peruvian PrisonReform Process of 2011-2019. The article examines the situation before the ReformProcess, one marked by high levels of violence, riots, escapes and inmate self-rule. The transformation of Peruvian prisons considered here managed to end self-government, replacing it with a system based on peaceful dialogue, recognition of legitimate representatives of inmate organizations, and restoration of order and non-violence. The Reform Process reduced and eliminated prison riots, shootings, the taking of hostages and strikes by workers. The Reform Process led to a drastic reduction in the number of violent deaths and prison escapes. Based on the success of the Peruvian model and a review of other experiences in Latin America, the article proposes four models of prison management. For ungovernable detention centers, it proposes recognition of legitimate inmate organizations, dialogue and respect for human rights as the most effective means of reducing violence and lawlessness
Taxation of Long-term Unemployment in the Digital Economy: Facing the Twenty-First Century Challenges
Get PDFThe article examines the policy of taxing long-term unemployment. We claim that tax systems should not tax the unemployed regardless of whether they reenter the labor market. Unemployment is a socioeconomic problem. The fear of expanding unemployment increases due to COVID-19 that shut down large sectors of the economy for a long period and also due to the digital economy. As early as the 1930s, Keynes expressed his fear of the economic challenges his grandchildren\u27s generation would face, coining the term technological unemployment. Several contemporary economists substantiate this fear by showing that some occupations are bound to disappear. Unemployment insurance is part of social law aimed at granting financial security during unemployment. This article focuses on security benefits paid out of unemployment insurance programs to unemployed who become chronically so. In many countries it is common to tax unemployment benefits, but tax laws do not distinguish between short-and long-term unemployed taxpayers. Given that the future of the occupational security of the unemployed is dubious, taxation should take into consideration the future dimension of equity. In order to assess the proper taxation of the long-term unemployed, the article adopts the reciprocity principle, which is reinforced by lifecycle theory. Equity cannot be measured over a single year, but over a longer period, during which we should examine whether the unemployed has become chronically so–one who cannot find a job even after exhausting his rights to unemployment insurance. The article proposes three taxation periods reflecting reciprocal relationships between a taxpayer and society–employment, regular unemployment, and chronic unemployment–and the reciprocity between two adjacent periods is then examined. Since unemployment insurance programs are well rooted in many countries, the article\u27s recommendations are practically universal
A Directed Trust Approach to Intergenerational Solidarity in American Environmental Law and Policy: A Modest Proposal
Get PDFIn recent years, much has been written about trust principles as a useful lens through which to view environmental obligations – particularly with respect to the obligations of the present generation to those who will live in the generations to come.Underlying much of this discussion is the ancient principle of the public trust doctrine as a vehicle for meeting that intergenerational responsibility. However, while trust theory enjoys an impressive legal pedigree, it has not gained as much traction in American environmental law as might be effective for addressing contemporary environmental issues.One reason that the trust model is not as effective as it could be in the environmental context is because there are parts of the trust analogy that simply do not exist in a clear, obvious way. Traditional trust doctrine requires a settlor, who entrusts the defined res of the trust to a trustee (or to multiple trustees) in a trust instrument that clearly sets forth obligations to defined classes of beneficiaries, present and future. The actions of the trustee are governed by the demands of the trust instrument as well as by well-established fiduciary obligations. The trust analogy in the environmental law context lacks all of these.Paradoxically, at the very same time, today’s dissatisfaction with the highly politicized environmental statutory and administrative regime gives the trust doctrine a renewed appeal because of its straightforward conceptual approach and its deeply moral, rather than merely pragmatic, underpinnings. Yet, this appeal does not easily translate into a clear-cut path for using trust doctrine in a reasoned and effective way, in spite of recent efforts to do just that.This paper will consider whether there is any value in creatively borrowing from trust law to devise a more narrowly focused way to keep the needs of the future in our present debates. This paper will begin by acknowledging the importance of intergenerational solidarity and the solemn responsibility of preserving environmental assets for future generations. It will then, very briefly, review the ways in which trust doctrine has been a vehicle for expressing and implementing principles of intergenerational responsibility in the environmental context. It will then discuss the practical difficulties with the trust paradigm in the environmental context. The paper will then propose that one approach to making ancient trust theory more useful as a way to protect environmental resources is to incorporate, in some manner, the modern concept of a “trust director” or “directed trust” function into the environmental regulatory regime. It will first discuss what a “directed trust” means in the private trust context. Then, it will explore some of the reasons such a model may be of use in the complex realm of environmental protection
All for Nothing?: Executive Authority and Congressional Evasion on Arms Sales
Get PDFOn August 17, 2018, CNN reported that Lockheed Martin manufactured a bomb that killed dozens of Yemeni schoolchildren in Northern Yemen. Saudi Arabia purchased the bomb in an arms deal authorized under the Arms Export Control Act, the statute in which Congress delegates to the President authority to control the import and export of arms. Under the Act, the President must comply with reporting and waiting periods allowing time for Congress to oppose a sale by enacting a joint resolution. However, the Act allows the President to sell arms in an emergency without notice or waiting periods. President Trump invoked that authority in 2019, to sell arms to Saudi Arabia, a transaction Congress opposed. This raises questions about the efficacy of the Act itself. Specifically, given Supreme Court precedent, past practice, and exceptions to the Act, there is some doubt as to whether Congress would in practice be able to halt a sale. This comment explores that question, and employs Justice Jackson’s Steel Seizure Concurrence as a framework. Although Congress likely possesses authority to halt a sale, I consider the legacy of Congress’ decision to delegate authority, and note the complexities emergency provisions and Supreme Court precedent create
The End of the Affair
Get PDFReligion and liberalism have reached a complicated entente in the law of American and European democracies. At times the relationship has been diffi- dently cordial; at others something that appeared warmer. This period marked a change from previous eras of far more open mutual hostility. Liberalism and the traditional, historically rich and influential religions—particularly Christianity— never have been allies. To the contrary, liberalism was designed in part expressly to neuter the communal and political power of religion—again, especially Christianity—and to separate law from religion for the purpose of weakening the latter. The current rapprochement has endured for more than a century, long enough to feel almost timeless, but it is a comparatively recent and contingent development. It could end as suddenly as it began
Resentencing Hearings Post Graham
No full textThe first panel took an in-depth look at how sentencing and re-sentencing of juvenile offenders has played out in the past decade since the Graham v. Florida decision. Given their experience, the panelists provided a better understanding of the topic from the judge, prosecutor, and public defender perspectives
The Global Rise of Judicial Review Since 1945
Get PDFThis article expands upon the theory put forth in Professor Bruce Ackerman’s book, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law, in which he posits that twentieth century revolutions in a variety of countries led to the constitutionalization of charisma, thus binding countries to the written constitutions established by their revolutionary leaders.
Constitutional law scholar, Steven G. Calabresi, argues here that world constitutionalism, in fact, existed prior to 1945, and what is especially striking about the post-1945 experience is that the constitutionalism of charisma included not only the adoption of written constitutions, but also the adoption of meaningful systems of judicial review and of checks and balances – often established by the revolutionary leaders, themselves. This article concludes with a discussion of the origins and growth of judicial review in fifteen of the G-20 nations, all constitutional democracies not described in Professor Ackerman’s book