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

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

Brandon Buskey

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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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I Am a Victim Too: Applying the “Dual Victim-Offender” Framework to Reform New York’s Family Court System

I Am a Victim Too: Applying the “Dual Victim-Offender” Framework to Reform New York’s Family Court System

Nikki Whetstone

Introduction

New York has two separate judicial systems within Family Court: one for children who are considered “victims,” and another for those who are considered “offenders.” Children whose parents are suspected of abuse/neglect are placed in dependency court, under the guise that the state must step in as parens patriae to protect the well-being of the child.[1] On the other hand, children who are accused of committing a crime are placed in delinquency court, with the purpose of protecting society and holding the youth accountable for their actions, while also attempting to rehabilitate them.[2] However, often the same social and familial circumstances lead children to become involved in both systems, simultaneously yet separately becoming both the “victim” and the “offender” in the eyes of the court. Despite recent efforts to reform the family court system, New York fails to address the needs of youth who are involved in both delinquency and dependency court.

This paper first examines the separate theoretical and historical foundations of both New York dependency and delinquency court, including their differing rationales and treatment of children. Part II of this paper evaluates the correlation between victimization and offending, and the connection between dependent youth and their subsequent involvement in the delinquency system (“dual-status youth”). Finally, part III explores the “dual victim-offender” framework and offers this as a lens to be used by Family Court to inform their view of children and, in turn, reform the way children are treated in the system.

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LABOUR STANDARDS 
IN INTERNATIONAL LAW: ALL STATES SHOULD HAVE AN OBLIGATION TO PUNISH MISCONDUCTS OF MULTINATIONAL ENTERPRISES UNDER INTERNATIONAL CUSTOMARY LAW

LABOUR STANDARDS
 IN INTERNATIONAL LAW: ALL STATES SHOULD HAVE AN OBLIGATION TO PUNISH MISCONDUCTS OF MULTINATIONAL ENTERPRISES UNDER INTERNATIONAL CUSTOMARY LAW

By Andrea Scozzaro1

INTRODUCTION

This article addresses the issues of unethical employment practices and lack of fair labor standards in developing countries. The discussion on such problems, although ongoing since the 1970s, is still of primary importance both within the scholarly community and the wider public. The fact that big, multinational enterprises of developed countries still engage in violations of workers’ rights is certainly stunning, yet not so surprising given the connections between such violations and the current structure of the global economy. In the wake of a nearly fifty-years-old process of globalization, the worldwide implementation of competition rules in the labor market stimulates “race to the bottom” outcomes, with millions of workers in developing countries suffering from slavery-like working conditions, wages below subsistence level, and inhumane treatments.

Despite the progress made in the field of labor protection thanks to private and governmental initiatives in the last several decades, the current legal tools used to avoid massive workers’ rights violations have been proven ineffective. This is due to the apparently unsolvable friction that exists between the huge economic power of enterprises and the desperate need for economic support of developing countries.

Given the global nature of these causes, possible solutions may only achieve success if they entail a global approach to the problem. Remedies should be found in order to create a universal rule for labor protection applicable and enforceable in all countries throughout the world.

The first part of this article explains which are the most widespread violations of workers’ rights in relation to the current economic structure of the world, and presents the economic dynamics that lie within them. The second part provides a short account of past and present initiatives in favor of the improvement of labor standards. The third part presents the main critical aspects of these initiatives, by focusing on lack of accountability mechanisms and their inherent voluntary nature. Finally, the fourth part suggests the idea that a possible remedy aimed at stopping labor rights violations is to create and implement a universal rule for labor protection through international customary law. Such a remedy would also perform a change in the way the responsibility for compliance to labor law is placed upon states, by shifting the obligation to punish misconduct of multinational enterprises from developing states to developed ones. Continue reading

A FIGHT FOR THE RIGHT TO CARRY LUGGAGE: SOUTH KOREA’S RISE IN GLOBAL PROMINENCE AND ITS ENSUING EFFORT TO DETER DISABILITY DISCRIMINATION

A FIGHT FOR THE RIGHT TO CARRY LUGGAGE: SOUTH KOREA’S RISE IN GLOBAL PROMINENCE AND ITS ENSUING EFFORT TO DETER DISABILITY DISCRIMINATION

Lindsay Lee Cowen*

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I. INTRODUCTION

These days, the world knows South Korea (“Korea”) as the land of Samsung,[1] kimchi,[2] and k-pop,[3] for which its upsurge in popularity owes “Gangnam Style” much thanks.[4] Below the surface of this most recent hallyu, or “Korean wave”[5] of popular culture ascendency across the globe, lies the darker side of Korea. Numerous articles have scrutinized its colossal plastic surgery industry, questioning the motives behind such procedures and crowning Seoul the new plastic surgery capital of the world.[6] A generation of transnational adoptees has renewed attention in what, during the 1988 Summer Olympics,[7] was labeled the country’s greatest shame: mass exportation of unwanted babies.[8] Media outlets have exposed a “remote island where the enslavement of disabled salt farm workers is an open secret.”[9]

Nonetheless, the hallyu surges forward. Tourism rates in 2015 nearly tripled those from only a decade prior.[10] College student study of foreign languages has declined nearly 7% since 2009, yet enrollment in Korean-language classes increased 45% from 2009 to 2013.[11] In 2014, The Huffington Post launched “Huffpost Korea” and published an article proclaiming what the country can teach “the rest of the world about living well,”[12] while ignoring its low happiness index and high suicide rate.[13]

Rapid economic growth has rocketed South Korea’s Gross Domestic Product (“GDP”) to the fourteenth highest in the world[14] and secured its position in the Organization for Economic Cooperation and Development (“OECD”).[15] In the 1960s, Somalia and the Democratic Republic of the Congo, for example, had higher per capita GDPs than Korea.[16] The Korean War left the small East Asian peninsula one of the poorest nations in the world.[17] Few other countries can boast such drastic transformation of economic circumstances in a half-century period.[18]

However, the aforementioned societal realities demonstrate a deep chasm between the country’s economic development and its social progress. Contemporary society in South Korea shuns minority groups from the benefits of Korea’s commercial gains. Due in large part to an entrenched Confucian class hierarchy, which dates back to the Chosun dynasty,[19] conformity is king.[20] Prevailing discriminatory employment practices illustrate Korea’s ambivalence toward its new social obligations as it grapples with antiquated ideologies in a modern marketplace. Part II of this article will discuss disability-focused anti-discrimination law in Korea. Part III will address the actual efficacy of such legislation to date. Continue reading

Justice in America: Diverting the Mentally Ill

JUSTICE IN AMERICA: DIVERTING THE MENTALLY ILL

By Matthew J. D’Emic[1]

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I. INTRODUCTION

It has been a rough year for the criminal justice system in America. Racially charged confrontations in various jurisdictions have caused citizens to question both the substantive and procedural fairness of our justice system. Calls for reform of the grand jury process, court transparency, and other facets of the criminal justice system sound far and wide. Protestations of “no justice, no peace”—an accusation of systemic injustice—echo across the country.[2]

Legal scholars decry the shortcomings of judges and judging. One claims “misjudging is more common, more systematic, and more harmful than the legal system has fully realized.”[3] Yet another presumes “judges generally are prone to error because of . . . informational, cognitive, and attitudinal blinders,” concluding, “I do not think that the vast majority of trial judges are good . . . .”[4]

In fact, no less a personage than presidential candidate Hillary Clinton recently stated in an interview:

I believe we need to end the era of mass incarceration. If you compare arrest records in, you know, in charging crimes, in sentencing for crimes, you compare African-American men to white men, it is as unfortunately clear as it could be, that there is a bias in favor of white men.[5]

So there it is. A bad year for the reputation of the justice system in general and judges in particular. Whether one agrees with it or not (and it is nothing new), or agrees with it in part, judges and the justice system cannot lose the trust of the citizenry without dire consequences. Trust is key to the effectiveness of the third, non-political branch of government.

Against this backdrop of mistrust I would like to present to the reader the history and future of a quiet evolution in the justice system—one which I believe bolsters trust in the justice system: the mental health court.

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The Issue is not the Issue

The Issue Is Not the Issue

Sara AbiBoutros[1]

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The use of public space to peacefully assemble is essential to the success of any social movement fighting for social justice. Without a space for people to come together, it would be impossible to engage with one another, to plan, and to make our civil disobedience visible to the public. The convergence of public and private institutions to curtail the use of space to quash free speech is evident through the repression of the Free Speech Movement (“FSM”) in the 1960s and Occupy Wall Street (“OWS”) in 2011. At their core, the FSM and OWS were both protesting the socio-political landscape and the power structure. Both movements used symptoms of this larger issue, such as limiting free speech and the use of public space, to create such tension that society could no longer ignore injustice. Through this approach they were able to gain political concessions; but more importantly, they radicalized previously non-politically active individuals and changed the way people think.

The FSM was able to galvanize support through confrontations with a university’s administration,[2] while OWS attempted to create the world in which it envisioned. Different ideologies of civil disobedience played a part in shaping the movements and the tactics they chose to utilize. Off-shoots of OWS, such as Occupy Sandy and Strike Debt, show that the principles of the movement could be used as a model to achieve tangible successes in multiple arenas.

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The Environmental Crisis of the 2003 Iraq War: A Moral Obligation or a Mandatory Measure Under International Treaties

The Environmental Crisis of the 2003 Iraq War: A Moral Obligation or a Mandatory Measure Under International Treaties

By Ramy A. Ibrahim1

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The 2003 Iraq War has left a long-lasting detrimental impact on the lives of Iraqis. Aside from the highly destructive sectarian divide, political instability, and stunted economic development, both the United States and the Iraqi Governments have failed to address the environmental contamination that resulted from the military munitions used during the war.2 This article focuses on the effects of that contamination, the reaction both governmental systems have taken, how these actions constitute violations of various international treaties, and also calls for action.

Studies have linked the highly radioactive environmental contaminates left behind by the war to dramatically increasing rates of cancer, birth defects, and other illnesses—including respiratory and neurological ones—in all affected areas.3 Iraqi women and children continue to live in these hazardous conditions and are constantly exposed to these left-over toxic munitions and carcinogenic waste.4 The failure of the U.S. and Iraqi Governments to take sufficient measures to decontaminate the affected areas, and to provide healthcare services for affected persons constitutes a blatant violation of a number of international treaties, including, but not limited to: the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),5 the Convention on the Rights of Persons with Disabilities (CRPD),6 and the Convention on the Rights of the Child.7

I. Violation of International Treaties

Under these international treaties, the U.S. remains directly responsible for the human rights violations that took place during, or as result of, the Iraq War.8 The Human Rights Committee explained in General Comment 31 on the International Covenant on Civil and Political Rights that “the enjoyment of Covenant Rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality . . . who may find themselves in the territory or subject to the jurisdiction of the State Party.”9 The Committee added further that “[t]his principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory.”10 Additionally, the State Party’s responsibility extends to persons or places beyond the State Party’s control when the State Party was a “causal link” in the chain in the violation and if the State Party had knowledge and foresaw the violation.11 From this, it is evident that both the U.S. and Iraq have violated these treaties and have a responsibility to remedy this issue.

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E-Discovery in Criminal Defense: Challenges of Pretrial Detainee Access

E-Discovery in Criminal Defense: Challenges of Pretrial Detainee Access

By Emilee A. Sahli 1

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I. Introduction

Imagine that you are a criminal defense attorney and your client is being charged with a felony, denied bail, and held in pretrial detention on federal drug charges. It could be years before your client has an opportunity for trial. In the rare event that your client decides to hold out against pressures to accept a plea agreement, your client’s ability to participate in their own defense is extremely limited by the conditions of their confinement. Any reasonable penological explanation for restricting their access to calls or meeting with you to review evidence in the law library and otherwise participate in the investigation process will be constructively unchallengeable in court.

Imagine, instead, that you have another client—one facing various federal charges for fraud and embezzlement—who has been granted, and was able to post bail. This client may also wait years for trial. However, they will not have the same restrictions on their ability to participate in their own defense as your client held in pretrial detention. This client would have the freedom of movement and the time and resources to communicate more openly with you and your staff, to review discovery, and to overall assist in the investigation and discovery review process. This discrepancy in the rights of those detained pretrial and those who are offered and able to post bail is especially stark in complex cases involving large amounts of discovery, often taking the form of electronic discovery.

The original purpose of pretrial detention and the setting of bail was to ensure that the person return to court to face the charges against them. However, pretrial detention has evolved out of concerns for public safety based upon the judge’s assessment of the defendant’s dangerousness. Regardless of the purpose for pretrial detention, this imbalance of opportunity for the accused to participate in their own defense ought to be challenged in order to preserve constitutional due process rights. If our criminal justice system is to preserve any meaning to the presumption of innocence, legal counsel must be aware of the unique challenges faced by their clients that are detained pretrial.

This article gives an introduction to electronic discovery in federal criminal litigation and explores the unique challenges that pretrial detainees face in accessing electronic discovery. The rise of electronic discovery requires that attorneys become aware of the complexities surrounding this form of discovery in order to adequately represent their clients’ interests.

First, the article provides background information as to what electronic discovery is and the current state of pretrial detention in federal criminal cases. Second, the article lays out some of the various challenges in accessing electronic discovery for pretrial detainees. Finally, the article opens a discussion surrounding potential solutions by exploring efforts by the facilities themselves as well as potential legal strategies for litigation over the unique challenges of pretrial detainees in accessing electronic discovery.

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Article: These Parks Are Our Parks

These Parks Are Our Parks

An Examination Of The Privatization Of Public Parks In New York City And The Public Trust Doctrine’s Protections

By Thomas Honan 1

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Introduction

The Great GoogaMooga, advertised as “an amusement park of Food, Drink, & Music” was a music, artisan food, and drink festival in Prospect Park.2 GoogaMooga lasted two days during the summer of 2012 and three days during the summer 2013,3 and demonstrates the negative impact of private use on public space.4 The Prospect Park Alliance, a non-profit organization founded to raise private funds to supplement the financing of Prospect Park,5 and Superfly, a privately owned music festival company, organized GoogaMooga. 6 The festival was strategically placed in Nethermead Meadow, a lovely tree-lined meadow located in the center of the park.7 Nethermead Meadow is traditionally used by the public for dog walking, tossing a football, and gathering with friends for a picnic, the leisure activities one would expect to take place in a park meadow. Over the three-day event, Nethermead Meadows played host to approximately 120,000 people, and accommodated approximately 75 restaurant stands, 65 drink stations, and two stages where 20 bands performed.8 As one Prospect Park local aptly put it, “It’s like bringing a boombox into a library – it doesn’t belong there.”9

The festival was intended as a fund-raising opportunity for the park.10 The idea was that the event would raise sufficient funds to provide a benefit to all the park users.11 Instead, the festival resulted in the destruction of the Nethermead Meadow and prevented the public from its use for a month after it ended.12 Additionally, the festival was promoted as a community event.13 The Great GoogaMooga website explains: “And that’s why The Great GoogaMooga is more than a festival. It’s a community brought together by a shared passion.”14 However, many of the communities surrounding the park were unable to attend because of the high admission cost of $79.50,15 and the Nethermead Meadow prevented non-ticket holders from access by way of a fence.16 The most disturbing aspect of The Great GoogaMooga experience is that in consideration for allowing the park’s use, The Prospect Park Alliance received a mere $75,000.17 Essentially, the festival was intended to provide a substantial benefit to the public and promoted itself as a community event, when in reality the surrounding community lost part of its park for a month.

The GoogaMooga experience illustrates the effects privatization can have on the public’s use of its parks. Public parks are areas of land that are dedicated to be used for the public interest.18 Since the 1970s, there has been a steady trend toward the privatization of public parks in New York City.19 Over the past ten years, new models of privatization have emerged, and, more than ever, the public is in danger of losing out on its use of parks.20 This trend corresponds with a substantial decrease in state and city funding for public parks.21 Since 2008, the City has slashed its overall maintenance and operation of parks budget by 21%.22

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The Seward Park Urban Renewal Area

The Seward Park Urban Renewal Area, Forty-five Years Later:
Affordable to Whom?

By Eugene Chen

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I. Background

From the 1950s through the 1960s, two thousand families with low incomes were displaced from their homes when the City of New York embarked on an urban renewal plan targeting the area east along Delancey Street at the foot of the Williamsburg Bridge, otherwise known as the Seward Park Urban Renewal Area (SPURA).1 Forty-five years later, the “Seward Park Slum Clearance Project” left 165 million square feet of parking lot space, devoid of any signs of human occupation aside from the coming and going of vehicles. After a contentious community debate, the City Council passed a resolution (the “Resolution”) on October 11, 2012, for a mixed-use plan to develop SPURA.2 Proposals were due to the New York City Economic Development Corporation (NYCEDC) on May 6, 2013, and on September 18, 2013, Mayor Bloomberg announced that Delancey Street Associates LLC, a joint venture composed of L+M Development Partners, BFC Partners, and Taconic Investment Partners, had been selected to develop the site.3 The plan calls for 60/40 residential and commercial development, with 500 units of permanently affordable housing, out of the 1000 units of housing being built.4 In all likelihood, the developer chosen to develop SPURA will apply for the 421-a tax exemption, an incentive intended to encourage the construction of market-rate and affordable housing in New York City (the “City”).

The decision by the City to develop SPURA forty-five years later galvanized community groups and residents in Manhattan Community Board 3 (“CB3”), a neighborhood historically made up of low-income immigrants, who wanted to ensure that the project would benefit the community and not just enrich private developers.5 Though community boards did not exist6 when the City razed the area it deemed a “slum” in the 1960s, it was at community board meetings and hearings that the community voiced demands for more affordable housing, the construction of more schools in a burdened school district, prevailing wage jobs, and a ban on big-box stores in the plan for SPURA. This paper will examine the meaning of “affordability,” as defined by the U.S. Department of Housing and Urban Development through the concept of Area Median Income, the alternative definition of affordability known as Local Median Income, and the role of the 421-a Real Property Tax Exemption in the creation of affordable housing.

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