All content tagged with: Policy

Filter

  • The Abolition of the Death Penalty in New Jersey and Its Impact on Our Nation’s “Evolving Standards of Decency”

    In 2007, New Jersey became the first state in over forty years to abolish the death penalty legislatively. Twenty-five years earlier, in 1982, New Jersey had followed a state-level trend by reinstating its death penalty. However, during the twenty-five years between reinstatement and abolition, New Jersey did not conduct a single execution. Instead, the New Jersey Supreme Court reversed numerous death penalty cases and consistently narrowed the class of cases eligible for the death penalty. This Note posits that the supreme court's narrowing of eligible cases was one of the factors that prevented executions from taking place in New Jersey. The Note further hypothesizes that this lack of executions created the policy space for legislative abolition. The Note then explores the effect that New Jersey's abolition might have on capital punishment in other states, as well as the potential influence of state-level abolition on the United States Supreme Court's evaluation of the constitutionality of the death penalty.

  • Permitting Under the Clean Air Act: How Current Standards Impose Obstacles to Achieving Environmental Justice

    Most studies about the environmental justice movement focus on the disproportionate share of environmental burdens minority and low-income populations bear, the negative effects of an unequal distribution of undesirable land uses, and how industry contributes to the adverse impacts suffered by the communities. Unfortunately, trying to prove that an injury was caused by actions of a nearby facility is difficult, and this approach has yielded few legal victories for environmental justice communities. While it is important to remain focused on how environmental justice communities are disproportionately impacted by undesirable land uses, the analysis must shift if the law is to provide any remedy for these communities. Rather than starting at the bottom and focusing on the negative effects that occur under the current system, this Note argues that a different approach should be adopted. Under this new approach the analysis begins by examining the cause of the problems-the statutes and regulations established by Congress and implemented by federal and state agencies. In particular, the Note focuses on how the current framework of technology-based permitting provides facilities with the legal ability to continue emitting dangerous levels of pollution that disproportionately harm environmental justice communities. The Note uses a case study from Michigan to illustrate the problems with the current permitting system. It concludes with suggested changes that could be implemented by states, or at the federal level, to provide adequate protections for environmental justice communities so that the environmental justice movement has a better chance of achieving its goals.

  • Separate and Unequal: Federal Tough-on-Guns Program Targets Minority Communities for Selective Enforcement

    This Article examines the Project Safe Neighborhoods program and considers whether its disproportionate application in urban, majority- African American cities (large and small) violates the guarantee of equal protection under the law. This Article will start with a description of the program and how it operates-the limited application to street-level criminal activity in predominately African American communities. Based on preliminary data showing that Project Safe Neighborhoods disproportionately impacts African Americans, the Article turns to an analysis of the applicable law. Most courts have analyzed Project Safe Neighborhoods' race-based challenges under selective prosecution case law, which requires a showing by the defendant that the program had a discriminatory impact and was effectuated with the intent to discriminate. But this case law is not definitive. Project Safe Neighborhoods is a program that operates to treat African Americans separately and unequally. The program targets African American neighborhoods and thus targets African Americans. Under well-established law, where a program effectively classifies citizens by race, it is presumptively invalid and can be upheld only upon an extraordinary justification.

  • The Pocahontas Exception: The Exemption of American Indian Ancestry from Racial Purity Law

    "The Pocahontas Exception" confronts the legal existence and cultural fascination with the eponymous "Indian Grandmother." Laws existed in many states that prohibited marriage between Whites and non- Whites to prevent the "quagmire of mongrelization." Yet, this racial protectionism, as ingrained in law, blatantly exempted Indian blood from the threat to White racial purity. In Virginia, the Racial Integrity Act of 1924 made exceptions for Whites of mixed descent who proudly claimed Native American ancestry from Pocahontas. This Paper questions the juridical exceptions made for Native American ancestry in antimiscegenation statutes, and analyzes the concomitant exemptions in contemporary social practice. With increasing numbers of Americans freely and lately claiming Native ancestry, this openness escapes the triumvirate of resistance, shame, and secrecy that regularly accompanies findings of partial African ancestry. The author contends that antimiscegenation laws such as the Racial Integrity Act relegate Indians to existence only in a distant past, creating a temporal disjuncture to free Indians from a contemporary discourse of racial politics. He argues that such exemptions assess Indians as abstractions rather than practicalities, which facilitates the miscegenistic exceptionalism as demonstrated in Virginia's antimiscegenation statute.

  • Decline of Title VII Disparate Impact: The Role of the 1991 Civil Rights Act and the Ideologies of Federal Judges

    This study employs various statistical techniques to test the efficacy of the 1991 Civil Rights Act in moderating the highly restrictive disparate impact regime imposed by Wards Cove, and to evaluate the hypothesis that political ideology should be a more powerful predictor of case outcomes following the 1991 Act. Part I of the paper describes the evolution of disparate impact doctrine from 1971 to the present. Part II analyzes data from randomly selected disparate impact cases brought by African American plaintiffs and finds that the current disparate impact doctrine emanating from the 1991 Civil Rights Act dramatically decreases the likelihood that such plaintiffs will successfully challenge facially-neutral employment practices. Two significant observations may be gleaned from Part II: first, that the ideologies of judges on the appellate panels deciding Title VII cases exert a far more significant impact on case outcomes in the post-1991 period; and, next, that one important explanation for the decline of successful disparate impact claims is that politically conservative judges decide a greater percentage of recent cases. Based on these findings, Part III argues that Congressional action to clarify disparate impact standards is essential to preserve Title VII as a conduit through which African Americans can seek redress for discrimination.

  • “The Implicit Association Test”: A Measure of Unconscious Racism in Legislative Decision-Making

    This Article argues that the Court will not fulfill the promise of the Equal Protection Clause unless the Court adapts its vision of antidiscrimination to account for the complex nature of discrimination. Imagine that we could measure unconscious discrimination. If so, then we could broaden the concept of purposeful discrimination to include the measurement of a legislator's reliance on unconscious racial stereotypes. Such a measuring device may already exist: The Implicit Association Test (IAT), a computer-based test developed by Yale and University of Washington psychologists. Researchers do not yet know how well the IAT can uncover racial stereotypes; however, if the IAT could discern the state of mind of decision-makers, it could enable all acts of race-dependent decision-making to be subject to pre-scrutiny analysis under the Equal Protection Clause. Currently, facially race-neutral statutes are practically impervious to constitutional challenges by aggrieved plaintiffs, because discriminatory intent often cannot be "located" by the Court. This barrier has continued to shield legislators from judicial scrutiny. The IAT could "smoke out" illegitimate purposes by demonstrating that the classification does not in fact serve its stated purpose.

  • Strategic Voting and African-Americans: True Vote, True Representation, True Power for the Black Community

    As long as American politics remain securely bound to the two-party system, Blacks will remain a voting block; a block that may shift, but a block nonetheless. And although this appears to be to our strategic disadvantage, allowing conviction to direct us, as well as a deep respect for the intense struggle for the franchise, will forever be a noble posture.

  • The Tension Between the Need and Exploitation of Migrant Workers: Using MSAWPA’s Legislative Intent to Find a Balanced Remedy

    This Comment concludes that the recent Maine federal district cases represent an irreconcilable spike in a national and international trend to afford more protection to a vulnerable class whose resources are the object of urgent demand. However, the search for a proper remedial weight in the balance between migrant worker protection and the provision of competitive farm labor is not a new problem.

  • When Success Breeds Attack: The Coming Backlash Against Racial Profiling Studies

    The author proposes that in an ongoing debate on questions concerning the possibility of racial or other types of invidious discrimination by public institutions, we should apply a prima facie standard to these claims in the public arena. In other words, if African Americans or Latinos say that they have been the victims of racial profiling, we should not ask for conclusive proof in the strictest statistical sense; rather, if they can present some credible evidence beyond anecdotes, some statistics that indicate that we may, indeed, have a problem, the burden should then shift to the public institution-here, law enforcement agencies-to collect the information necessary to either confirm or dispel the perception that a problem exists. This seems an important ingredient to the proper understanding and resolution of societal policy arguments and disagreements, especially when the governmental action alleged has such dire consequences for the individuals affected and for the integrity and legitimacy of the institutions themselves. When public confidence in our most vital institutions of government is undermined, as is clearly already happening with racial profiling, we ought not be satisfied with the declaration that conclusive proof is not available, especially when access to that proof is in every way controlled by the institutions accused of wrong doing. Instead, when victims present a prima facie case, the burden should shift to the government to show that its conduct is above reproach. Only that type of standard for our public debate on such crucial issues can ensure the legitimacy of our public institutions.

  • Cracking the Code: “De-Coding” Colorblind Slurs During the Congressional Crack Cocaine Debates

    This article proposes "de-coding" as a method for unveiling the racist purpose behind the enactment of race-neutral legislation. Through the use of "code words," defined as “phrases and symbols which refer indirectly to racial themes, but do not directly challenge popular democratic or egalitarian ideals,” legislators can appeal to racist sentiments without appearing racist. More importantly, they can do so without leaving evidence that can be traced back as an intent to discriminate. This article proposes to use "de-coding" as a method to unmask the racist purpose behind the enactment of the 100:1 crack versus powder cocaine ratio for mandatory federal prison sentences. However, while this article, like many other law review articles on the subject, argues that the crack cocaine sentencing scheme is unconstitutional, the real purpose of analyzing the constitutionality of the crack statute is to show how "de-coding" can be an effective means of unmasking the racist meaning behind primarily race-neutral comments. When the interpretation of "de-coded," race-neutral comments falls in line with an un-coded historical pattern of discrimination, it makes sense to infer that there was an intent to discriminate.