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Gruel and Unusual: Prison Punishment Diets and the Eighth Amendment
Get PDFFor as long as prisons have existed, food has been used as a mechanism of prisoner control. One of the earliest forms of food as punishment was the aptly named “bread-and-water diet,” providing prisoners with just 700 calories per day. The diet was later deemed cruel and unusual in violation of the Eighth Amendment, but this was far from the last use of food as punishment in prisons. Today, one disciplinary diet persists in correctional facilities across the country—nutraloaf. The exact recipe for nutraloaf varies but typically involves blending together bread, potatoes, non-dairy cheese, beans, fruits, and vegetables, shaping it into a loaf, and baking it. Nutraloaf is served three times a day for days, weeks, or even months. Prisoners placed on the diet frequently experience a multitude of adverse health outcomes, including vomiting, diarrhea, gastrointestinal bleeding and distress, and significant weight loss. Despite the seemingly outdated nature of nutraloaf, courts have generally resisted finding that it violates the Eighth Amendment. However, the recent case Prude v. Clarke signals a shift in jurisprudence. In Prude, a prisoner placed on a nutraloaf diet experienced serious damage to his health. The court held that the “[d]eliberate withholding of nutritious food or substitution of tainted or otherwise sickening food” violated the Eighth Amendment. However, the court stopped short of suggesting that all nutraloaf is unconstitutional. Nevertheless, Prude and its underlying rationale provide a path toward finally ending the use of nutraloaf. This Note argues that the courts must hold nutraloaf unconstitutional. First, the Note provides a brief history of the evolution of the Eighth Amendment standard. Next, the Note discusses the use of food as a mechanism of control within prisons and the disciplinary diets previously ruled unconstitutional. The Note then discusses nutraloaf cases specifically, and argues that nutraloaf constitutes cruel and unusual punishment in violation of the Eighth Amendment. The Note concludes by providing guidance for lawyers bringing future nutraloaf cases, and listing examples of evidence that are critical to surviving judicial scrutiny
Power to the People: Distributing the Benefits of a Clean Energy Transition Through Equitable Policy, Legislation, and Energy Justice Initiatives
Get PDFThe transition to renewable energy may be accelerating, but the path to a clean energy future is still littered with potential inequities. This reality has become increasingly evident in the early 2020s as the COVID-19 pandemic has exacerbated injustices within the existing energy system, leaving many low-income and minority communities struggling to pay for essential utilities. Moreover, marginalized communities are disproportionately impacted by the negative externalities of the energy sector, such as air pollution and climate- change-induced natural disasters. Recent events, like the Texas power crisis and unprecedented heatwaves in 2021, have brought these issues into sharper focus, while equally underscoring the critical need for reliable and affordable energy access for all, along with targeted policy and legal solutions. While recent legislative proposals have emphasized the need to tackle the climate crisis and create a clean energy future, many of those who have been most impacted by the economic and social turmoil of the last two years will not benefit equally from such developments unless special care is taken to roll out “green” infrastructure in a manner that focuses heavily on promoting energy justice. Prior attempts by state and local governments to mitigate energy justice issues have consistently revealed disparities in the distribution of the benefits of renewable energy technology to marginalized communities; a trend that must be reversed as we strive to build a more equitable energy future. This Note provides a roadmap for law and policymakers as they work to address these gaps and find solutions to energy justice issues that promote equitable access to clean, reliable, and affordable energy. To this end, this Note highlights pitfalls and successes within existing energy justice initiatives and identifies hazards that must be avoided during the ongoing energy transition so as to reach energy justice goals. It ultimately recommends that states enact legislation that generates and allocates funds directly towards addressing energy injustices, either through the adoption of carbon trading systems, or a dedicated “systems benefit charge” to ratepayers. Additionally, this Note describes the important role that the federal government and recent legislative initiatives could play in addressing energy justice issues, as well as their ultimate shortcomings
Who Decides Where the Renewables Should Go?: A Response to Danielle Stokes\u27s Renewable Energy Federalism
Get PDFA Broad View of Broadview Solar: How FERC’s Whiplash-Inducing Orders Expand the Scope of PURPA
Get PDFA Taking Timebomb: Loss of Access Takings as a Barrier to Managed Retreat from Sea Level Rise
Get PDFHow the Liberal First Amendment Under-Protects Democracy
Get PDFThis Article advances a distinct theoretical account of the First Amendment that stresses its role as the underwriter of a republican form of government. Predicated on a more accurate description of the processes of self-governance, the advanced theory delivers a construction of the First Amendment that actually protects democracy in all its facets. By contrast, as currently construed, the First Amendment operates to the detriment of democracy. A singular preoccupation with speech as the mechanism of self-governance obscures the critical role of political participation as conduct. Accordingly, disruptive assemblies get less protection than disruptive speech, and the Court is blind to the First Amendment interests in its most important election law cases. Meanwhile, in a variety of other contexts, the Court consistently over-protects speech, thereby undermining the capacity of legislatures to serve their most basic constitutional function—reaching provisional decisions on contested values. Taken together, these missteps result in a construction of the First Amendment that undermines democracy at a moment when American democratic institutions, and the First Amendment itself, are under extreme political pressure. Properly construed, the First Amendment can do better
Minimum Deadly Contacts
Get PDFDomestic violence is a national epidemic. Roughly one in three women will experience some form of domestic violence during their lifetime. Women are also seventy times more likely to be killed in the two weeks after leaving their intimate partner than at any other time during their relationship. Thus, it is not surprising that the only safe haven available to those who escape their abusers is often located outside of the state where the violence occurred. The difficulties do not end once a survivor moves to another state. If she wants to obtain a lifesaving domestic violence protection order, she may be denied legal protection because the court lacks personal jurisdiction over the out-of-state abuser. Personal jurisdiction is a due process protection that ensures a defendant has certain “minimum contacts” with the state before it renders a judgment—in this case, a protection order—personally binding on him. But this is often difficult to establish when the abuser has no ties to the new state and is unaware that the survivor now resides there. A survivor is therefore left with two untenable choices. She can return to her abuser’s home state—the very state she fled—and file her protection order there. Or, alternatively, she can remain in the new state and wait for her abuser to commit additional acts of domestic violence. This Note argues that survivors escaping abuse should not be placed in such a difficult position. The Due Process Clause of the Fourteenth Amendment protects an out-of-state defendant from being subject to personal jurisdiction in a state with which he has no connection. But it is an entirely different situation when a person engages in a pattern of abusive conduct toward another based on a pre-existing relationship. This Note makes two arguments for authorizing jurisdiction in interstate domestic violence cases. First, a survivor should be able to obtain a protection order before the abuser reaches out to the new state. Nothing in the Constitution suggests that a state court lacks the power to subject an abuser to its authority in this situation. Second, if the abuser reaches out to the new state by, for example, calling the survivor’s cellphone that he does not realize is in the new state, courts have an even stronger basis for exercising jurisdiction under existing case law
Reflections of a Supreme Court Commissioner
Get PDFThe Presidential Commission on the Supreme Court of the United States was given a fundamentally frustrating task: bipartisan expert analysis of an institution whose greatest challengers are political. I served on that commission and offer my own views on Supreme Court reform: Court packing is lawful but unjustified. Term limits, without a constitutional amendment, are not lawful and maybe also unjustified. Generally democratizing the Court through jurisdiction stripping is unlikely to be effective, and doing so through various other means is unlikely to be lawful. And the Supreme Court’s shadow docket, though not free from trouble, does not admit of simple reforms either. I conclude with some reflections on the commission itself
