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Rethinking Juvenile Rehabilitation: Presumptive Waiver and Alternative Sentencing in Indiana
Get PDFIndiana’s juvenile justice system, like all systems of juvenile justice, is premised on rehabilitation. And while Indiana is far from an outdated, overly punitive system, there are several tangible opportunities for improvement. Indiana enacted an alternative sentencing scheme for juvenile offenders waived into adult court in 2013, but alternative sentencing has not been implemented in an effective manner yet. Furthermore, Indiana’s statutory system of waiver contains several aspects that are inconsistent with, or simply fail to account for, modern social science understandings.
This Comment seeks to expound upon relevant social science principles within the context of juvenile justice in order to bring to light many of the considerations that form the basis of a developmentally focused system. The Comment will bring to light twenty-first century literature on adolescent brain development and explain how youth behavioral tendencies can be better understood in light of this research. The Comment then takes an in-depth look at Indiana’s system of “presumptive waiver” and its alternative sentencing scheme. Throughout this analysis, the Comment will highlight serious problems and inconsistencies within these statutory schemes.
The Comment will conclude with four concrete reform proposals that seek to enhance Indiana’s system of waiver and alternative sentencing by making changes informed by developmental social science principles. These reform proposals are not unrealistic, system-rocking changes made for political grandstanding and internet clickbait. They are real proposals that can be effectively and immediately implemented without large-scale disruption. This Comment will demonstrate that these proposals should be taken into serious consideration by the Indiana legislature
Compelled Speech and the Regulatory State
Get PDFSince the Supreme Court’s 1943 decision in West Virginia Board of Education v. Barnette, it has been axiomatic that the First Amendment prohibits the government not only from censoring speech, but also from compelling it. The central holding of Barnette itself is largely uncontroversial—it seems obvious that the First Amendment’s free speech clause means that no government may require people to espouse or reproduce an ideological statement against their will. But the Court has extended the compelled speech doctrine to stop the government from forcing people to make even truthful, factual statements. These claims have resulted in some of the most hotly contested free speech disputes the Court has addressed in recent years. For instance, in National Institute of Family & Life Advocates v. Becerra, the Court invalidated provisions of a California law requiring self-styled “crisis pregnancy centers” to post and distribute truthful information about the availability of statesponsored services, including abortion, for pregnant women and, where the centers were not licensed to provide medical services, to disclose that fact. The Court held that the First Amendment prohibits such compelled speech unless the disclosure is “purely factual and uncontroversial,” and that abortion is “anything but an ‘uncontroversial’ topic.” If this is the appropriate legal standard, then the doctrine must grapple with defining what makes facts controversial or not. This is problematic for a number of reasons. First, facts, as opposed to ideas, would not ordinarily be labeled as controversial. Second, because we are now living in a time of epistemic chaos in public discourse, virtually any fact is now open to dispute, and thereby controversial. Finally, because of increasingly polarizing contemporary debates about the very role of government, the controversial fact standard risks devolving into an infinite regress to the point where every fact is controversial because the role of government regulation is itself controversial. If the Court does not articulate clear and substantial limiting principles, widespread application of the compelled speech doctrine ultimately will result in challenges to all government disclosure requirements, undermining critical components of the regulatory state
Look Who\u27s Talking: Conscience, Complicity, and Compelled Speech
Get PDFCompelled speech claims, which arise under the Free Speech Clause, and complicity claims, which usually arise under the Religious Freedom Restoration Act (RFRA), are structurally similar. In each case, an individual claims that the government is forcing her to participate in a particular act that violates her religious or moral beliefs and imperatives, sending a false and undesired message to others and causing a form of spiritual or dignitary harm. It is therefore no surprise that compelled speech claims are often raised together with complicity claims in cases where religious individuals challenge the application of generally applicable laws to themselves.
In analyzing compelled speech claims, courts and commentators have often considered whether the purportedly compelled message is likely to be perceived as the speech of the objecting individual. In the complicity context, by contrast, courts and commentators generally have not considered whether the problematic act can reasonably be attributed to the individual claimant. Nor do they generally consider whether the individual claimant can take steps to disassociate from the act. This Article argues that the concepts of attribution and disassociation, if applied in the compelled speech context, should also be applied in the complicity context. It also attempts to demonstrate how an analysis of these concepts might proceed in complicity cases. Alternatively, if these concepts fit poorly in the complicity context, they should be rejected in the compelled speech context for the same reasons
Racial and Ethnic Ancestry of the Nation\u27s Black Law Students: An Analysis of Data from the LSSSE Survey
Get PDFThis article proceeds in three substantive parts. In Part I, we discuss the changing racial and ethnic ancestries of Black people in the United States since affirmative action began. In Part II, we discuss the LSSSE data set that we use along with our weighting procedure based on the ABA data. Also in Part II, we discuss the Public Use Microdata Sample (PUMS), a subset of the American Community Survey (ACS). We use the ACS PUMS to provide comparative national data to analyze the relative representation of each group of Blacks among law students. In Part III, we present the primary results of this study. It is the heart of the article and deserves further exposition.
In the first section of Part III, we present socioeconomic data on each of the examined groups to explain why we have separated them for analysis. Our primary assumptions are that Ascendant Blacks have more experience with the history of racial discrimination in the US and that this history has impacted them more. We point to differences in a number of socioeconomic factors that provide some support for these assumptions.
In the second section of Part III, we use the LSSSE and ACS PUMS data to examine the relative representation of Ascendant and each group of Successive Blacks among law students and compare that with the relative representation of non-Hispanic, non-immigrant, non-multiracial White people, who we will refer to as “Whites.” We find that, save for Black Immigrants, Ascendant and Successive Blacks are underrepresented in law schools in comparison to their percentage in the population and that this underrepresentation is the most pronounced for Ascendant Blacks. Similarly, we examine the proportionate representation of Ascendant and Successive Blacks among students at top 50 law schools in the LSSSE survey and find that all of these groups are more underrepresented in top 50 law schools than in law schools in general and that once again this underrepresentation is greatest for Ascendant Blacks. We then discuss various “pipeline” issues that may contribute to this underrepresentation, including completion of a college degree, undergraduate grades and LSAT scores.
In the third section of Part III, we use the LSSSE and ACS PUMS data to examine each group’s representation by gender. Given that for the past 30 years, over 60% of undergraduate degrees earned by Black people have gone to women,6 we document the gross underrepresentation of men for all groups of Black people in law school when compared to their percentage in the general population. Indeed, we find that all of the underrepresentation suffered by Black people in law schools is suffered by Black men and Ascendant Black women. Again, we examine attendance in top 50 law schools and consider potential pipeline issues, this time with an eye toward differences associated with gender. We find that Black men suffer greater underrepresentation among top 50 law school students and suffer greater pipeline issues, except that Black men score higher on the LSAT.
Finally, in the fourth section of Part III, we examine the impact of class on Ascendant and Successive Blacks by examining the distribution of parental educational achievement for each group and estimating the payoff for each group in the percent of law students achieved for the parent’s generation that attains a given level of educational accomplishment. Corresponding numbers are calculated for Whites for purposes of comparison. We find that both Ascendant and Successive Blacks suffer relative to Whites due to a comparative lack of parental educational achievement, and a lower payoff in percent of law students for parental educational achievement, but that Ascendant Blacks suffer the most. Interestingly, with respect to the payoff in law students for parental educational achievement, we find that both Black people and Whites with low parental educational achievement attend law school at approximately the same (very low) rate. However, among those who enjoy the advantage of high parental educational achievement, Whites enjoy a significantly higher payoff than Black people in terms of the percent of law students resulting from a percent of the parents’ generation who achieve graduate degrees, although both Black people and Whites are much more likely to go to law school than the progeny of parents with low educational achievement. Apparently, at least with respect to attending law school, the advantages enjoyed by Whites accrue to the children of the higher educated to a significantly greater extent than they do to Black people
Phased Mark-to-Market for Billionaire Income Tax Reforms
Get PDFIn this installment of Academic Perspectives on SALT, Gamage and Shanske advocate for phased mark-to-market as a mechanism for reforming the taxation of investment gains of billionaires and megamillionaires
Hoffmann, Robel Honored at Retirement Ceremony
Get PDFTwo legendary members of the Indiana Law community were honored at a retirement ceremony November 16 in the Indiana Memorial Union.
Friends, family, and colleagues gathered to celebrate the remarkable careers of Professor Joe Hoffmann and Dean Emerita Lauren Robel. While both have retired from the Law School, Dean Christiana Ochoa said she is grateful that both continue to be deeply involved in various projects