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Dislocated and Deprived: A Normative Evaluation of Southeast Asian Criminal Responsibility and the Implications of Societal Fault
This Note argues that certain Southeast Asian defendants should be able to use their families' refugee experience as well as their own economic and social marginalization in the U.S. as a partial excuse for their criminal acts. This argument draws its strength from both the socioeconomic deprivation of much of the Southeast Asian community and the linking of this reality to a careful analysis of the moral foundations of the criminal law. In essence, the American criminal justice system, which draws much of its moral force to punish from the theory of retributivism, cannot morally justify the full punishment of a large portion of the Southeast Asian community. It is precluded from doing so by American society's contribution, in one form or another, to many of these defendants' criminal conduct.Ghosts of Alabama: The Prosecution of Bobby Frank Cherry for the Bombing of the Sixteenth Street Baptist Church
Perhaps no other crime in American history has shocked the conscience of America like the 1963 bombing of the Sixteenth Street Baptist Church in Birmingham, Alabama. In May of 2002- almost thirty-nine years after the bombing- Bobby Frank Cherry was brought to trial for the murders of Addie, Carole, Cynthia, and Denise. He was the last person to be tried for the bombing. As an Assistant United States Attorney in Birmingham, Alabama it was my privilege to be a part of the prosecution team that brought Cherry to justice. This Article tells the story of that prosecution and explores the question of whether such trials, so long after the events in question, serve any useful purpose.Discrimination in Sentencing on the Basis of Afrocentric Features
This Article does not challenge the prior research on sentencing discrimination between racial categories that found no significant difference in sentences given to similarly-situated African Americans and Whites. In fact, in the jurisdiction investigated- Florida- no discrimination between African Americans and Whites was found in the sentences imposed on defendants, looking only at racial category differences. Rather, the research suggests that in focusing exclusively on discrimination between racial groups, the research has missed a type of discrimination related to race that is taking place within racial categories: namely, discrimination on the basis of a person's Afrocentric features. By Afrocentric features, this Article means those features that are perceived as typical of African Americans, e.g., darker skin, fuller lips, or a broader nose. The research found that when one examines sentencing from this perspective, those defendants who have more pronounced Afrocentric features tend to receive longer sentences than others within their racial category who have less pronounced Afrocentric features.Felon Disenfrachisement Laws: Partisan Politics in the Legislatures
This examination of the institutional changes to state legislatures, synthesized with an analysis of the handling of felon disenfranchisement laws by state legislatures, presents a troubling realization about the law today: in the twenty-first century, partisan politics moderates decisions about even the most basic and fundamental principles of democracy. This Note suggests that because state legislators follow their party leadership and position, a state's traditional treatment of racial minorities, geographic location, and even ideology are not the strongest indicators of a state's disenfranchisement laws. Rather, partisan politics drives changes to the state laws governing felon voter eligibility.Splitting Hairs: Why Courts Uphold Prison Grooming Policies and Why They Should Not
Part I of this Note describes the substance of prison grooming policies and provides a sampling of cases that have challenged these policies under the Equal Protection and Free Exercise Clauses. Part II explores three theories of discrimination that describe certain types of discriminatory conduct that could be prohibited by the Equal Protection and Free Exercise Clauses. These theories inform the definition of "equal protection of the laws" and impact the analysis of equal protection challenges to prison grooming policies. Part III explores the "religious exemptions" doctrine and explains how courts have interpreted the protections offered to religious groups by the Free Exercise Clause. This Part also explores the ways in which the development of the Free Exercise Clause has mirrored the development of the Equal Protection Clause and argues that these similarities justify a similar analysis of challenges to prison grooming policies brought under either theory. Part IV analyzes prison grooming policies by interpreting the constitutional provisions to prohibit oppressive discriminatory conduct directed at minority group members. Part V concludes this Note by arguing that adoption of an anti-oppression theory of discrimination in the analysis of Free Exercise and Equal Protection claims requires courts to strike down prison grooming policies.Breaking the Camel’s Back: A Consideration of Mitigatory Criminal Defenses and Racism-Related Mental Illness
This article will examine the concept of racist words, symbols, and actions that are used as weapons to "ambush, terrorize, wound, humiliate, and degrade,” as psychological and physiological violence. The implications of such violence are relevant to several affirmative defenses and, indeed, to the initial formulation of mens rea. The historical and contextual legacy that is intentionally invoked by the utilization of racialized violence is what separates the racial epithet or racially violent symbolism from other distressing insults and slurs. While First Amendment protection extends to offensive or insulting speech, the mental and physical sequelae of such speech, even absent conduct, are appropriate considerations for the criminal law, as such speech is racial violence itself and may lead to the responsive physical violence that is beyond the protection of the First Amendment.Sexual Violence as Genocide: The Developing Law of the International Criminal Tribunals and the International Criminal Court
This note will explore the treatment of the two primary violent sexual acts, rape and forced pregnancy, in modern international criminal law; more specifically in its treatment as genocide. The woman as an individual is the primary sufferer of sexual violence during armed conflict, however sexual violence is a calculated means by which perpetrators seek to destroy an entire ethnic group. Sexual violence is both an attack against the woman and an attack against the ethnic group, and should be prosecuted as such. While crimes against individuals are best prosecuted as crimes against humanity or under domestic law, crimes committed against ethnic groups, separate from the individual underlying act, should be prosecuted as genocide.Bête Noire: How Race-Based Policing Threatens National Security
This Article asserts that race-based policing, enabled and exacerbated by race-blind judicial review, creates an ire with a purpose that promises, especially after September 11, to make us all less safe. The illegitimate marginalization of American citizens aggravates an already alienated population and primes them for cooperation with those who seek to harm the United States. Race-based policing guts the expectation of fair-dealing, legitimacy, and justice in the criminal justice system, creating marginalized populations, especially of African Americans. Lack of judicial redress in the face of such policing irrevocably stains already beleaguered African Americans (and others so policed) as inferior citizens. This, in turn, may actualize a catalyst of cooperative opportunity and vulnerability for those who seek to injure the United States, its institutions, and its people.The Profiling of Threat Versus the Threat of Profiling
This speech covers three points. First, a brief summary of the failed federal criminal prosecution of Wen Ho Lee is given. Second, Wu talks about the racial profiling used in this case. Third, Wu talks about the possibilites for Asian Americans and other racial minorities to engage in principled activism to overcome these unfortunate trends.Seeking Redress for Gender-Based Bias Crimes- Charting New Ground in Familiar Legal Territory
This Essay will analyze how courts have defined gender-motivation, focusing on the Civil Rights Remedy cases decided before the law was struck down, in an attempt to cull from those cases the standards federal courts have used to assess gender-motivation. The article will first provide an overview of existing and proposed laws that offer some form of redress for gender-motivated crimes. It will then analyze cases decided under the Civil Rights Remedy, focusing on two key issues that have arisen as policymakers struggle with whether and how gender-based bias crimes fit in the rubric of hate crimes legislation. The first of these issues is how courts have assessed whether claims of domestic violence reflect discriminatory motivation, and what type of evidence they have found useful in that context. The second issue is how courts treated VAWA civil rights claims based on allegations of sexual assault, and what, if any, evidence, in addition to allegations of sexual assault, they found to indicate gender-motivation.
