The Gladue Approach: Addressing Indigenous Overincarceration Through Sentencing Reform

Nasrin Camilla Akbari

In the American criminal justice system, individuals from marginalized communities
routinely face longer terms and greater rates of incarceration compared to their
nonmarginalized counterparts. Because the literature on mass incarceration and
sentencing disparities has largely focused on the experiences of Black and Hispanic
individuals, far less attention has been paid to the overincarceration of Native peoples.
Yet there are clear indications that Native peoples are both overrepresented
within the criminal justice system and subject to unique sentencing disparities as
compared to other ethnicities. While these issues are partly motivated by traditional
drivers of criminal behavior, including access barriers to housing, employment, and
education, this Note argues that there is a greater systemic issue at play: the
enduring legacy of colonialism. Accounting for—and correcting—this legacy in the
criminal justice system is a complex task, though not an impossible one. For
example, over the past twenty years, the Canadian criminal justice system has
implemented a novel, remedial sentencing approach to address the overincarceration
of Aboriginal offenders: the
Gladue approach. Recognizing the extent to
which the Canadian legal system has failed to account for the unique needs, experiences,
and circumstances of Aboriginal offenders, the
Gladue approach mandates
an individualized and contextualized approach to sentencing, one which prioritizes
community-based alternatives to incarceration and emphasizes restorative justice.
This Note proposes two legal pathways by which to transplant the
approach to the American criminal justice system. In so doing, it offers the first
comprehensive analysis of the normative and constitutional implications of
applying the
Gladue approach to the sentencing of Native peoples within the
United States. While the approach has challenges and shortcomings, it is nevertheless
a powerful tool by which the American criminal justice system can begin to
reckon with its colonial past and present.

Mr. Crawford Gets COVID: Courts’ Struggle to Preserve the Confrontation Clause During COVID and What It Teaches Us About the Underlying Rights

Elizabeth Bays

One of the things courts across the nation struggled with throughout the COVID-19
pandemic was the conflict between preserving defendants’ rights under the
Confrontation Clause of the Sixth Amendment and implementing the safest public
health measures. Measures like masking or virtual testimony recommended by
public health officials threatened to abridge defendants’ rights. This Note has two
primary contentions. First, it will argue that the wide variation in the ways courts
chose to resolve this tension revealed a fundamental issue in our Confrontation
Clause jurisprudence: Courts have never actually defined the underlying right. In
fact, this Note will argue, that the “confrontation right” is more appropriately
understood as a bundle of distinct rights which must be carefully prioritized.
Second, this Note will argue that the standards used to adopt these modifications
were insufficiently rigorous. It proposes, therefore, that it is time for the legislature
to intervene as they have in other situations involving modified confrontation, and
to provide courts with a structured procedure for authorizing modified witness testimony
during times of emergency.

Green Industry, Procurement, and Trade: Refining International Trade’s Relationship with Green Policy

Garrett Donnelly

Green industrial policy, an aspirational headline with the 2019 Green New Deal
Resolution, has continued to gain steam and take shape. Green industry was a core
focus of presidential platforms during the 2020 election. Federal agencies have
demonstrated an increased willingness to revamp their purchasing power—that is,
their procurement policy—to buy green products and stimulate emerging green
industrial sectors. In general, these policy shifts toward green industry typically tout
three primary goals: to develop the domestic manufacturing base and to strengthen
both environmental and labor protections. For instance, in November 2021, as part
of the larger Infrastructure Investment and Jobs Act, Congress took aim at the
failure of supply chains to meet adequate environmental and labor standards by
enacting a domestic content preference-scheme for infrastructure programs
receiving federal financial assistance. The nationalist orientation of this kind of
policy, however, often runs afoul of the nondiscrimination spirit of World Trade
Organization disciplines.

This Note evaluates how trade disciplines can enable a green-industrial strategy in
government procurement while abiding by WTO disciplines, offering a few options.
While countries continue to aggressively deploy green industrial policies to attain
environmental benefits, these strategies must be carefully structured to avoid cooptation
by populist, protectionist goals. As such, this Note considers the implications
that arise when this form of green industrial procurement supports the advancement
of global welfare—and when it does not. In particular, this Note explores how
refining the traditional relationship between international trade rules and green industrial initiatives can produce mutually beneficial results. On the one hand,
trade rules can be interpreted to permit environmental and labor-conscious decisionmaking while protecting against protectionist discrimination. On the other, this
Note proposes that procurement decisionmaking should incorporate supply-chain
disclosure or cost-accounting of environmental and labor impact, which, when justified
under the existing public morals discipline in WTO trade agreements, forms a
method of government engagement that can enable a more robust international
trade regime.

Bolstering Benefits Behind Bars: Reevaluating Earned Income Tax Credit and Social Security Benefits Denials to Inmates

Belinda Lee

This Note describes how the tax system treats inmates, an intersection that has
been relatively understudied by both tax and criminal justice scholars. The Note
provides a detailed account of how inmates earn income through prison labor
(what goes in) and the benefits denied to inmates (what comes out, or rather what
often does not come out). The Note then asks why the tax system denies inmates
Earned Income Tax Credit (EITC) and Social Security benefits. Traditional tax
principles of equity, efficiency, and administrability do not justify the denials. This
Note argues that the underlying culprit is that the tax system is being used to levy
additional punishment on inmates. This has particularly insidious effects on communities
of color given the connections between mass incarceration, poverty, and
race. The Note proposes statutory repeal of the benefits exclusions and mandatory
filing for inmates as a way of making the tax system better reflect the economic and
social realities that inmates face, while simultaneously moving the system closer to
fundamental tax principles.

Juvenile Life With(out) Parole

Rachel E. Leslie

Beginning in the late twentieth century, the Supreme Court gradually restricted the
range of punishments that could be imposed on children convicted of crimes. The
seminal cases
Graham v. Florida, Miller v. Alabama, and Montgomery v.
Louisiana banned the imposition of mandatory life without parole sentences on
children who were under eighteen at the time of an offense and held that those
juveniles must be given a “meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation.” Some courts have extended the logic of
these cases to invalidate life with parole sentences based on extremely long parole
ineligibility periods, but no court has held that the practical unavailability of release
within the current parole system makes any life sentence—regardless of its parole
ineligibility period—functionally equivalent to life without parole.

Building on recent scholarship about the constitutional role of parole release in
juvenile sentencing, this Note points out that the
Graham trilogy creates a substantive
Eighth Amendment right for juveniles to be released upon a showing of
maturity and rehabilitation, not merely a right to be considered for release. This
Note exposes the failure of state parole systems to vindicate this right by systematically
refusing to grant parole to juveniles. Because release on parole is a statistical
improbability for juveniles sentenced to life with parole, this Note concludes that
those sentences are actually unconstitutional sentences of de facto juvenile life
without parole.

Asylum, Religion, and the Tests for Our Compassion

Aaditya P. Tolappa

Under pressure to turn away noncitizens who fabricate religious affiliation to improve their chances of gaining asylum, immigration judges are known to ask asylum seekers doctrinal questions about their purported religions to assess their overall credibility. Immigration judges administer these “religious tests” with broad statutory authority to make credibility determinations and without meaningful review by the Board of Immigration Appeals or the federal Courts of Appeals. Although “religious tests” are currently allowed in immigration court, they are strictly forbidden in federal court because of an Establishment Clause principle called the “religious question doctrine,” which forbids government tribunals from weighing in on intrafaith doctrinal disputes or holding claimants’ beliefs and practices to judicial standards of orthodoxy. This Note highlights the difference in how religious tests are treated in these two adjudicative contexts and argues that for both constitutional and institutional reasons—that is, because of the Establishment Clause’s mandates and the government’s incompetence in adjudicating intimate issues of personal identity—appellate courts should forbid religious testing in asylum proceedings just as they do in federal courtrooms. To the extent that the government has a legitimate interest in preventing so-called “religious imposters” from gaining asylum, immigration judges can further that interest by gauging the sincerity and not the orthodoxy of applicants’ beliefs, just as federal judges do.


[De-]Prioritizing Prevention: A Case Against the 2020 Title IX Sexual Harassment Rule

Yonas Asfaw-Cooper

In 2020, the Department of Education issued a final Rule pursuant to notice-and-comment rulemaking which created the most far-reaching regulation on sexual harassment in educational institutions under Title IX to date. This Rule significantly limited the availability of administrative remedies for those experiencing sexual harassment in their educational institutions. While much has been said regarding the propriety of the substantive policy decisions advanced by the Department’s regulation, relatively little attention has been paid to the cost-benefit analysis (CBA) employed in the Rule. The Rule’s CBA found that the regulations would result in a net cost of tens of millions of dollars. In justifying their commitment to these cost-unjustified regulations, the Department relied only on a few non-quantified benefits. To make matters worse, the Department also disclaimed any responsibility to consider whether the Rule’s deregulatory policies would leave sexual harassment under-deterred. The 2020 Rule was arbitrary and capricious by reason of its faulty CBA. The Department’s failure to consider the costs associated with the Rule’s under-deterrent effects was an abrogation of their obligation to uphold Title IX’s preventative purpose.

A Unified Theory of Knowing Exposure: Reconciling Katz and Carpenter

Luiza M. Leão

The search doctrine has long been in a state of disarray. Fragmented into different sub-doctrines, Fourth Amendment standards of constitutional protection vary based on how the government acquires the information in question and on how courts define the search that occurred. As trespass-based searches, reasonable expectation of privacy searches, consent-based searches, third-party searches, and private searches each trigger different levels of protection, the doctrine has become what more than one Justice has termed a “crazy quilt.” This Note argues that unriddling the Fourth Amendment is easier than it might appear with the aid of the concept of knowing exposure, first discussed in Katz v. United States. An undercurrent across different strands of the search doctrine, the knowing exposure principle holds that what one “knowingly exposes to the public” is beyond the scope of Fourth Amendment protection. As the Court grapples with the search doc- trine in an age of unprecedented exposure to third parties, most recently in Carpenter v. United States, it should seek to unify the standard for searches around the foundational question of what renders one’s exposure “knowing.” Turning to Carpenter’s modifications to the third-party doctrine, this Note suggests a unified theory of knowing exposure that can apply across different kinds of searches, centering on whether the exposure is (1) knowing, (2) voluntary, and (3) reasonable.

Implementing the Hague Judgments Convention

Connor J. Cardoso

A specter is haunting The Hague—the specter of American federalism. On July 2, 2019, the Hague Conference on Private International Law finalized the Hague Judgments Convention. The Convention seeks to establish a global floor for judgment recognition and promote seamless recognition and enforcement of judgments between signatories. Although virtually all observers in the United States recognize the value and importance of ratifying the Convention, stakeholders cannot agree on how to implement it: by federal statute or by uniform state law. Proponents of a so-called “cooperative federalism” approach to implementation, principally led by the Uniform Law Commission (ULC), have previously derailed U.S. ratification of the Hague Convention on Choice of Court Agreements (COCA) by insisting that principles of federalism required implementation through uniform state law. This argument is wrong as a matter of doctrine and policy. It is time to put it to rest once and for all.

This Note is the first piece of scholarship to squarely address the “cooperative federalism” argument as applied to the Hague Judgments Convention. It makes two principal arguments. First, it identifies the principles that ought to guide the implementation of a treaty on foreign judgments recognition and concludes that federal implementing legislation optimizes these interests. Implementation primarily by
uniform state law is inferior and poses serious disadvantages. Second, the ULC’s primary legal objection to the implementation proposal for the COCA outlined by the State Department—that the doctrine of
Erie Railroad Co. v. Tompkins prohibits federal courts sitting in diversity jurisdiction from applying federal rules of decision prescribed by federal statute—was meritless in 2012, and it is meritless now. If any objections remain to implementing the Judgments Convention by federal statute, they are about turf and ideology. To the extent that the relevant stakeholders want to accommodate those political objections, this Note concludes by briefly outlining areas for compromise.

“To Be Read Together”: Taxonomizing Companion Cases of Landmark Supreme Court Decisions

Michael Kowiak

Supreme Court “companion cases” are decisions released on the exact same day that address substantially similar legal or factual matters. The list of consequential Supreme Court decisions that the Justices have resolved as part of a set of companion cases is lengthy: It includes NLRB v. Jones & Laughlin Steel Corp., Korematsu v. United States, Brown v. Board of Education, Terry v. Ohio, Roe v. Wade, Miller v. California, and Gregg v. Georgia. Although it is not surprising that important topics like civil rights and abortion generate significant amounts of litigation, the Supreme Court’s practice of conducting plenary review of multiple similar cases and issuing separate decisions resolving each one should give us pause. The Justices have a number of other procedural tools available for disposing of similar matters for which parties seek review. Options include granting certiorari for only one of the cases, vacating and remanding some of the matters, issuing at least one summary disposition, consolidating the cases, or releasing the decisions at very different times. The Court sidesteps these alternative approaches when it issues companion cases. Yet previous scholars have not devoted adequate attention to this practice as a distinct procedural mechanism, with unique characteristics that may motivate its usage. This Note fills that gap by studying some of the Court’s most famous companion cases and taxonomizing them into four categories—coordinate hedges, contested hedges, extensional reinforcements, and applicative reinforcements—based on factors including the voting behavior of the Justices and the constitutive decisions’ relationships to each other. The Note leverages that taxonomy to frame its analysis of why the Court chose to issue companion cases given all the procedural alternatives. This Note concludes by discussing how the practice of deciding certain sorts of companion cases—in which a majority of the Justices agree that they should resolve similar cases in ostensibly contradictory ways—may improve the Court’s legitimacy by accentuating its responsibility and capacity to collaboratively identify subtle distinctions between comparable cases that compel different outcomes.

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