Article
Drug offenses lie at the heart of the movement for criminal justice reform, and for good reason. Drug policy is defined by severe and disproportionate penalties owing to a retributive, factually flawed, and hurried congressional process. These central characteristics apply to the child pornography context as well. Though drug sentencing is problematic enough, child pornography sentencing is arguably worse. The U.S. Sentencing Commission has disavowed the child pornography sentencing guidelines and invited judges to vary from them. Judges have done just that, varying in sixty-three percent of all cases, more than any other offense type. In this Article, we identify the common issues with drug and child pornography sentencing and outline the doctrinal implications of this shared foundation, especially as to district court discretion which varies under Kimbrough v. United States. We also suggest how improvement to the uniquely distressed area of child pornography policy can inform criminal justice reform more generally, especially as to substantive reasonableness review under Gall v. United States, mandatory minimum sentences, and sunset provisions for penalty levels.
by Dawinder S. Sidhu & Kelsey Robinson
Essay
This Essay examines two recent cases, Masterpiece Cakeshop v. Colorado Civil Rights Commission and Sorrell v. IMS Health, Inc., in which the Justices were required to consider whether the First Amendment and its protection of speech applied to conduct that would not traditionally have been considered speech. These cases highlight both the substantive and strategic value of (re)considering the myriad ways in which conduct is expressive or otherwise integral to expression and the nature of judicial review. When applied to abortion, this line of reasoning illuminates the expressive values at stake with pregnancy and childbirth; why abortion restrictions must be carefully scrutinized to ensure that they do in fact promote a legitimate interest in protecting the welfare of mother and child; and the need to prevent governing majorities from using childbirth to endorse and celebrate moral beliefs that are not shared by the pregnant woman and may be antithetical to her interests and the interests of a child.
by Raymond Shih Ray Ku
Student Note
In practice, drug courts underserve minority communities and remain unrepresentative of the U.S. prison population as a whole. Minority participants are significantly less likely to be accepted into adrug court program, and even if they are able to gain access, they arealso less likely to successfully complete the program. Some of the mostproblematic components of U.S. drug courts are the discretion affordedby eligibility criteria and the shortcomings of the eligibility criteriathemselves—leading to a divergence of drug courts from the legislativeintent of assisting communities most in need. At a minimum, drugcourt program admissions and operations must be altered to eliminateany disparate impact and ensure the success of all participants. If drug courts are to remain, the eligibility criteria mustbe revised to target high-need, high-risk individuals, alongside theimplementation of additional structural improvements to assist inmaking such a shift successful.
by Kalyn Heyen
Student Note
To resolve the federalism and constitutional concerns raised with the current immigration enforcement scheme for certain individuals pardoned by state governors, this Note proposes that Congress amend immigration laws to redefine the term “conviction” to exclude pardoned convictions. Until then, the Biden Administration should give full faith and credit to state pardons as a discretionary matter when considering whether to deport a noncitizen on the basis of their criminal history. Specifically, the Biden administration should instruct ICE to use prosecutorial discretion by declining to initiate removal proceedings and terminating proceedings already underway for individuals with pardoned offenses. For individuals facing grounds of inadmissibility, the INA should be read by adjudicators in such a way that pardons overcome inadmissibility for all underlying convictions.
by Sadie M. Casamenti
Student Note
For decades, student-on-student sexual assault has been a significant problem on college and university campuses. Many institutions of higher education have purposefully ignored the student- on-student sexual assaults that occur on their campuses and have deterred survivors from reporting or pressing criminal charges against their alleged perpetrators. As a result, many sexual assault survivors have pursued legal action against their schools for failing to provide sufficient investigative and judicial proceedings when responding to accusations of assault. This Case Note will argue that the Farmer court correctly concluded that vulnerability to subsequent harassment caused by a university’s deliberate indifference is sufficient harm to state a viable Title IX claim. Survivors such as the plaintiffs in Farmer should not have to experience rape a second time to receive Title IX protection.
by Laëtitia Krisel
Article
The Supreme Court has only issued four opinions endorsing the constitutional rights of sexual minorities, each of them authored by Justice Anthony Kennedy. These four cases, which this Article refers to collectively as “the Kennedy Quartet,” have done much to advance the equality of LGBTQ adults in the United States. The question remains, however, as to what extent those cases likewise protect LGBTQ children. Far from simply being an academic question, this issue has taken on increased urgency as legislators in a number of states—thwarted by the Kennedy Quartet in their ability to target LGBTQ adults—have turned their attentions to those sexual minorities who are still children. In so doing, they have passed laws that, among other things, punish adolescent sexual activity more harshly when it involves two people of the same sex, prohibit discussions in public schools that portray homosexuality in anything other than a negative light, and deny transgender youth the ability to compete in school athletics or use restrooms that correspond to their gender identity. These laws are harmful enough in their own right but are particularly pernicious in light of the harms those children already face simply by virtue of being a sexual minority in a homophobic society. Looking at the Kennedy Quartet in conjunction with the Supreme Court’s jurisprudence regarding the constitutional rights of children, this Article argues that such laws are unconstitutional. It does so by, first, challenging the argument that the Kennedy Quartet pertains only to adults. Second, and more importantly, this Article then distills from those cases three key protections applicable to the entire LGBTQ community—children included—that these current laws violate. The hope is that this analysis will assist judges, legislators, and policy makers alike as they look for ways to put an end to this wave of discriminatory laws and, in their place, lobby for more inclusive legislation.
by Michael J. Higdon
Article
Theorists who contend that tort is designed to do justice cannot explain strict liability. The strict sector plagues these scholars because it extracts payment from defendants who have acted reasonably and are therefore considered innocent. If tort is about wronging and recourse, then strict liability makes no sense. Stymied, justice theorists have ceded the sector to economically minded counterparts who are concerned primarily with efficient market outcomes. As this theory has taken hold, some have declared strict liability “dead.” This Article offers a justice theory of the interpersonal wrong that permits liability in the absence of traditional fault—namely, the delegation of relational labor to inanimate, care-insensitive instrumentalities. These delegations may be efficient and low risk, but they are genuine wrongs because they treat relational counterparts as unworthy of authentic human care. This theory not only explains long-standing strict liability for activities like blasting, but it also has the power to address the modern wrong of injury-by-algorithm. Indeed, as the regulatory state permits market scions to replace real relationships with artificially intelligent ones, tort may be the only body of law able to guarantee that technology serves society and not the opposite.
by Cristina Carmody Tilley
Article
Specialized criminal courts were created in an effort to offer nonpunitive responses to the commission of crime. The promise of these courts was that they would remove select populations from the traditional legal system and offer them something different, and perhaps better, than mere punishment and incapacitation. Utilizing the framework of procedural fairness, this Article suggests that the presence of discretionary bias in the selection process for specialized courts threatens their continued legitimacy. Because specialized courts rely upon the freely-given cooperation of outside criminal legal stakeholders—such as social service providers and community organizations—in order to function, the courts must be perceived as a legitimate enterprise operating in an unbiased manner. Unless these courts begin to impose transparent, consistent, and procedurally just criteria for defendant selection, the entire project may cease to exist.
by Shanda K. Sibley
Article
When one’s home is stripped away, the consequences are dire. Housing insecurity can trigger instability in every aspect of a person’s life—employment, physical and emotional health, family and personal relationships, and financial security, among a cascade of others. And because people who rely on informal housing are disproportionately low-wealth people of color, the lack of protection following an extrajudicial ouster can be particularly bleak. For some, that displacement is a pipeline to homelessness. Being relegated to the streets means disparate exposure to illness, substance use, and indiscriminate policing. Homeless shelters—notoriously crowded and unsafe—are a far cry from a baseline of secure, dignified housing that should be a fundamental guarantee to every human being in a civilized society. The exclusion of such broad swaths of residential occupants ignores the realities of housing in the modern urban economy. The law can and should prevent the needless human suffering that necessarily flows from a self-help eviction. To date, however, jurisdictions across the country continue to permit landlords to weaponize extrajudicial evictions as a tool to oust non-tenant residential occupants from their homes.
by Matthew P. Main
