Medical Marijuana Post-McIntosh

Robert L. Greenberg

Click here for a recommended citation and to download a paginated PDF version of this article.

Introduction

On August 16, 2016, the United States Court of Appeals for the Ninth Circuit issued a landmark decision on a series of cases relating to businesses and individuals in the state-legal cannabis business. In United States v. McIntosh,[1] the Court heard ten cases challenging the United States Department of Justice (DOJ) prosecution of medical marijuana patients. These cases involved criminal defendants who were charged with violations of federal narcotics laws while ostensibly in compliance with the laws of their respective states.[2] The court determined that federal law prohibits the prosecution of these cases when the defendants are otherwise in compliance with state law. The impact of this decision is discussed infra. Continue reading

Call for Papers for Publication

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Download the Call for Papers here.

Spring 2017 Staff Applications

On Friday, November 18 at 9:00 AM we will release the Spring 2017 Staff Member application on our TWEN page. Only 2Ls & 3L visiting/transfer students are eligible to apply at this time – but day and evening students are both encouraged to consider the opportunity. Students already on the Law Review staff need not re-apply. The completed application is due by 5:00 PM on Sunday, November 27, 2016 through the TWEN Assignment dropbox. We are looking forward to your submissions!

In order to retrieve and submit the Staff Member application, you will need to add CUNY Law Review as a course on your TWEN page. We strongly suggest you register for our TWEN page now and download the materials as soon as they become available so we can troubleshoot issues in advance. You may then submit your application at any time before the deadline. Applications will not be reviewed if submitted after 5:00 PM on 11/27/16.

Detailed instructions for completing and submitting the application are included in the application itself, but you may know in advance that you will need to submit (1) a writing sample, (2) a personal statement, and (3) a diagnostic Bluebook test.

Should you have any questions, please feel free to e-mail us at CUNYLR@mail.law.cuny.edu. Members of the Law Review will also be available from 12:00-4:00 PM in the Beacon on Monday, November 21 and again by appointment to answer any process questions you may have regarding the application or any substantive questions you may have about publishing a note or comment in the Law Review.

 

WHAT PUBLIC DEFENDERS DON’T (HAVE TO) TELL THEIR CLIENTS

 

Steven Zeidman

Click here for a recommended citation and to download a paginated PDF version of this article.

Introduction

New York State courts, like many other state and federal courts, have seen an increase in cases that pit lawyer versus client; where the lawyer wanted to proceed in one way and the client wanted to go in another direction. The resulting decisions, often inconsistent and irreconcilable, reflect the difficulties in navigating the lawyer-client relationship.

Recently, the New York Court of Appeals again waded directly into the muddy waters of attorney versus client decision-making.[1] On the face of it, the Court was deciding whether counsel needed his client’s consent before telling the prosecutor that his client would not exercise his statutory right to testify in the Grand Jury.[2] However, lurking beneath the surface are the larger and related questions of who, between lawyer and client, has ultimate decision-making power, and what information lawyers must provide clients about their rights.

Marcus Hogan was arrested on Tuesday, May 24, 2005 for being in the wrong place at the wrong time. Mr. Hogan was in his former girlfriend’s apartment when police officers entered to execute a search warrant for the premises.[3] Officers testified that as they came into the apartment they saw Hogan running from the kitchen where, in open view, they discovered cocaine, baggies and a razor blade.[4] Hogan’s former girlfriend, Hope Fisher, was also inside the apartment and she, too, was arrested.

Continue reading

Morales-Santana Before the U.S. Supreme Court: Gender Discrimination in Derivative Citizenship with Consequences for Gender Equity, Parental Responsibility and Children’s Well Being

 

© Professor Janet Calvo, CUNY School of Law

Click here for a recommended citation and to download a paginated PDF version of this article.

On November 9, 2016, the U.S. Supreme Court will hear arguments in Lynch v. Morales-Santana.[1] The case directly addresses the constitutionality of gender differences in the acquisition of U.S. citizenship by statute through parentage.[2] But the case is infused with issues about the historical record of discrimination based in gender, non-marital birth, race and imperialism in U.S. law. The outcome of the case will be legally and socially significant because of the standards the Court may apply to gender discrimination and to a remedy for discrimination in the context of citizenship and because of the societal message sent regarding parental responsibility for non-marital children grounded in gender stereotypes.

Specifically, the case involves the statutory difference in acquiring U.S. citizenship at birth outside of the U.S. through an out of wedlock citizen father as versus an out of wedlock citizen mother.[3]   Persons become U.S. citizens at birth through parental heritage based on the statute in effect on the date of the person’s birth.[4] At issue in Morales-Santana is the longer time of physical presence in the U.S. required for a non-marital father before his child is born as versus a non-marital mother, as a condition for the child’s acquisition of citizenship at birth.[5]

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Vol. 19.2

Explore the complete digital version of Volume 19.2.

Public Interest Practitioner Section (PIPS)

Demanding a Race to the Top: The 2015 Strike Against MFY Legal Services in Context by Jota Borgmann and Brian Sullivan, members of the National Organization of Legal Services Workers, UAW Local 2320

Can Reproductive Trans Bodies Exist? by Chase Strangio, Staff Attorney at the American Civil Liberties Union’s LGBT & AIDS Project

Articles

From Michigan’s Strawberry Fields to South Texas’s Rio Grande Valley: The Saga of a Legal Career and the Texas Civil Rights Project by James C. Harrington, Founder and Director Emeritus of Texas Civil Rights Project

Puerto Rico’s Odious Debt: The Economic Crisis of Colonialism by Natasha Lycia Ora BannanAssociate Counsel at LatinoJustice PRLDEF

Notes

A Veil of Anonymity: Preserving Anonymous Sperm Donation While Affording Children Access to Donor-Identifying Information by Aliya Shain, J.D. Candidate ’16, City University of New York (CUNY) School of Law

Fast Food Sweatshops: Franchisors as Employers Under the Fair Labor Standards Act by Thomas J. Power, J.D. Candidate ’16, City University of New York (CUNY) School of Law

Fall 2016 Events

Join CUNY Law Review for some exciting events this fall in our 20th year of publication!

Bluebook Training

Join us for our semiannual Bluebook Training! We’ll review common errors, oft-forgotten rules, and correct some sample law review citations together. Please bring your Bluebooks, any office supplies you use to mark important pages, and your computers!

Tuesday, Sept. 13 | 7:30-8:30 PM
Room 1/205
Note: a makeup training for evening students and others with immovable conflicts will be held on Wednesday, Sept. 14 from 8:00-9:00 PM in Room 1/204.

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Welcome Back Happy Hour

We invite the whole CUNY School of Law community to join us for our annual welcome back happy hour! Help us kick off a new school year and celebrate the beginning of our 20th publication year.

Friday, Sept. 16 | 6:00-9:00 PM
The Beast Next Door
47-51 27th St
Long Island City, NY

CUNY Law Review Welcome Back Happy Hour

SCOTUS Preview

Save the date! Join CUNY School of Law Professors Janet Calvo, Jeffrey Kirchmeier, Stephen Loffredo, and Ruthann Robson for an evening discussion about the Supreme Court’s docket for the upcoming term. Learn about contested public interest cases and hear predictions for when the 8-member Court might deadlock this term. This event is open to the public!

Thursday, September 29 | 6:00-7:30 PM
Community Room @ CUNY School of Law (3rd Floor)

Lunch with Law Review

Join us to learn more about publishing as a student author! CUNY alums and current students will discuss how to navigate the process of preparing your scholarship for publication. Featuring Allie Robbins (CUNY Law ’09, Assistant Dean of Academic Affairs), Tom Power (CUNY Law ’16, CUNYLR Managing Editor ’16), Navid Khazanei (3L, CUNYLR Executive Articles Editor ’17), Shawn Simpson (Writing Fellow).

Wednesday, October 5 | 1:00 – 2:30 PM
Community Room, 3rd Floor
LUNCH PROVIDED (Taco Bar)

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Perspectives on the Fight for Black Lives

Join us to learn about how and where to get involved in supporting the #BlackLivesMatter movement as a legal advocate. Panelists will include Erin Cloud of the Bronx Defenders, Carl Lipscombe of Black Alliance for Just Immigration, Thenjiwe McHarris of Blackbird and Vision for Black Lives, Victoria Phillips of the Urban Justice Center, and Anthonine Pierre on behalf of Communities United for Police Reform. Moderated by Chaumtoli Huq of Law@theMargins & CUNY Law’s own Nicole Smith of the Criminal Defenders Clinic.

Monday, November 7 | 4:00 – 6:00 PM
Community Room, Room 3-115 [3rd Floor] 2 Court Square, Long Island City, NY

Sponsored by CUNY Black Law Students Association [BLSA], Law@theMargins, and CUNY Law Review.

Food will be provided. This event is open to the public & will be live-streamed (link forthcoming).

REGISTER HERE

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Street & Graffiti Art, Copyright, and Justice

Please join the CUNY Law Review and the Sorensen Center for International Peace & Justice for an exciting presentation and conversation with Dr. Enrico Bonadio, Visiting Scholar from City Law School in London.

Dr. Bonadio will discuss his research on graffiti, street art, and copyright law. He will address how corporations have used the work of street artists without compensating them for their work.

Thursday, November 17, 2016
Beacon Atrium (1st Floor at CUNY School of Law)
Reception: 4:30 PM (cannolis & coffee provided)
Presentation: 5:00– 6:00 PM

Join us afterwards for a Happy Hour at the Beast Next Door Cafe & Bar:
42-51 27th St, Long Island City, NY 11101

REGISTER HERE

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The Many Meanings of Montgomery v. Louisiana: How the Supreme Court Redefined Retroactivity and Miller v. Alabama

Brandon Buskey

Click here for a recommended citation and to download a paginated PDF version of this article.

Introduction

Henry Montgomery has survived the remarkable arc of the Supreme Court’s evolution on juvenile sentencing. In 1970, Louisiana sentenced him to die in prison for the murder of a police officer, a crime he committed when he was seventeen years old.1 The sentence was mandatory, and it was perfectly legal. At that time it was also perfectly legal to execute juveniles. A generation later, the Supreme Court barred the execution of children under age sixteen in 1988,2 but the next year refused to extend the bar to all juveniles.3 Not until 2005 did the Court exempt all juveniles from the death penalty.4 In half a decade, the Court ruled that juveniles could not be imprisoned for life without any possibility of release for non-homicides.5 A mere two years later, yet forty-six years after Mr. Montgomery’s conviction, the Court declared, in Miller v. Alabama,6 that mandatory life sentences like Mr. Montgomery’s were unconstitutional.

Miller confirmed the lessons of these prior decisions that children’s youth and immaturity make them categorically different for sentencing purposes, and that life imprisonment without parole is akin to the death penalty for juveniles. Thus, automatically sentencing children to a lifetime of imprisonment “poses too great a risk of disproportionate punishment.”7 The Eighth Amendment’s protection against “cruel and usual punishments” therefore prohibits such sentences.

But Mr. Montgomery’s path to a hope for release was not yet complete. In fact, it was cut off by the Louisiana Supreme Court. That court ruled Mr. Montgomery could not benefit from Miller8 because,9 under the United States Supreme Court’s decision in Teague v. Lane,10 Miller did not apply retroactively to cases that were already final at the time of the decision. Mr. Montgomery’s case became final in 1984, thirty years too soon.

In Montgomery v. Louisiana,11 the Supreme Court reversed the Louisiana Supreme Court and held that Miller applies retroactively. The Court found that, by categorically prohibiting life sentences for the majority of juveniles whose crimes reflect “transient immaturity” rather than “irreparable corruption,” Miller announced a substantive rule of criminal law that is not subject to Teague’s general bar against retroactivity. Now, unless Louisiana can show that the crimes of those like Montgomery demonstrate “irreparable corruption,” it must grant them meaningful hope of “some years of life outside prison walls.”12

As discussed below, Montgomery affirmed the Court’s supremacy in declaring federal law while bolstering the significant limits that Miller places on states’ ability to condemn any juvenile to die in prison. But the Court left unresolved a critical question: how much hope for release is enough? Whatever the answer, it must account for Miller’s impact on the obligation of states to grant parole to juveniles facing lifelong incarceration. This article asserts that Miller cabins the state’s power to deny parole permanently to reformed juveniles. It does so by creating a modest, but absolute, liberty interest in release before death for rehabilitated youth. The Supreme Court, rather than state parole systems, must be the ultimate protector of this right.

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CUNY Law Review’s Spring Symposium: “Reimagining Family Defense”

On Friday, April 8th, we hosted our 2016 Symposium, Reimagining Family Defense. More than 100 people attended the half-day event to engage in a discussion of how family defense can become more available throughout the U.S.

The plenary panel featured contributions from Professor Kara Finck of the University of Pennsylvania Law School; Diane Redleaf, Founder and Executive Director of the Chicago based Family Defense Center; and Lauren Shapiro, Director of the Brooklyn Family Defense Project.

Marty Guggenheim, Director of NYU Law School’s Family Defense Clinic, moderated the plenary session, which focused heavily on the need to increase legal representation for parents in child welfare cases. Professor Guggenheim was presented with the CUNY Law Review Scholarship for Social Justice Award.

Making parental voices more prominent in child welfare cases was a focus of the symposium. Members of Rise Magazine, a publication written by and for parents involved in the child welfare system, were invited to share their thoughts on how attorneys and judges can make parents’ family court experiences more empowering.

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2016 First Toast!

Come join us and toast to all of the hard work the outgoing 2015-2016 CUNY Law Review Board did this year and send well wishes to the incoming 2016-2017 CUNY Law Review Board!