Volume 85, Number 2

May 2010

Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignity

Michael Pinard

This Article adds to the burgeoning literature that explores the various collateral consequences that attach to criminal convictions in the United States. These consequences include ineligibility for public and government-assisted housing, public benefits, and various forms of employment, as well as civic exclusions such as ineligibility for jury service and disenfranchisement. This Article argues that decisionmakers in the United States failed to foresee the collective impact of these consequences when they expanded them dramatically in the 1980s and 1990s. They also failed to account for the disproportionate impact these consequences would have on individuals and communities of color. To provide a broader context for studying the United States’ imposition of collateral consequences and the extent to which these consequences are rooted in race, this Article looks to England, Canada, and South Africa. These countries, which have criminal justice systems similar to the United States’ and have similar histories of disproportionately incarcerating people of color, have in recent years adopted criminal justice practices similar to those of the United States and have turned to increasingly punitive punishment schemes. This Article is the first to offer a detailed comparative examination of collateral consequences and finds that the consequences in the United States are harsher and more pervasive than the consequences in these other countries. It also shows that Canada and South Africa have articulated broad protections for the dignity interests of incarcerated and formerly incarcerated individuals that are influenced by human rights notions of rights and privileges. Canada, in particular, has employed mechanisms to ease racial disparities in incarceration. Drawing lessons from these countries, this Article offers steps the United States should take to ease the legal burdens placed on individuals with criminal records, as well as to lessen the disproportionate impact these post-sentence consequences have on individual and communities of color.

The Institutional Dynamics of Transition Relief

Jonathan S. Masur, Jonathan Remy Nash

Whether and how to provide transition relief from a change in legal regime is a question of critical importance. Legislatures and agencies effect changes to the law constantly, and affected private actors often seek relief from those changes, at least in the short term. Scholarship on transition relief therefore has focused almost entirely on examining when transition relief might be justified and now recognizes that there may be settings where relief from legal transitions is appropriate. Yet largely absent from these treatments is an answer to the question of which institutional actor is best positioned to decide when legal transition relief is appropriate and what form it should assume. In this Article, we address this issue in two parts: Can the private market develop adequate risk-spreading devices such that government relief is unnecessary? If government relief is warranted, what government actors are best suited to provide relief? We find that private markets will be unable to provide adequate transition insurance due to insurmountable pricing difficulties, and that the task must thus fall to governmental actors. We then analyze the available governmental actors and conclude that, in many cases, an independent agency will be best positioned to make reliable and welfare-enhancing decisions regarding transition relief.


Did the Madisonian Compromise Survive Detention at Guantanamo?

Lumen N. Mulligan

This Essay takes up the Court’s less-heralded second holding in Boumediene v. Bush—that a federal habeas court must have the institutional capacity to find facts, which in Boumediene itself meant that a federal district court must be available to the petitioners. Although this aspect of the opinion has gone largely unnoticed, it is inconsistent with the Madisonian Compromise—the standard view that the Constitution does not require Congress to create or to vest jurisdiction in any federal court except the Supreme Court. In fact, it appears that the Court adopted, sub silentio, the position famously advanced by Justice Story in 1816 that the Constitution requires Congress to vest the lower federal courts with jurisdiction to hear executive-detention habeas corpus cases. In considering alternatives to this bold break with long-settled constitutional doctrine, this Essay examines newly uncovered opinions from Supreme Court Justices to determine whether Justices acting in chambers remain a viable habeas forum of last resort post-Boumediene, why the Boumediene Court failed to address this issue directly, and, finally, the degree to which the need for an independent finder of fact is well grounded in constitutional doctrine. This Essay concludes that Boumediene’s rejection of the Madisonian Compromise, rather than its decision with respect to the scope of the habeas writ, will come to be its longest-lived legacy for federal courts law.


Bundling Public and Private Goods: The Market for Sustainable Organics

Margot J. Pollans

Modern agriculture has vast environmental externalities. The pesticides, fertilizers, and sediments in irrigation runoff pollute surface and groundwater; single-crop farms destroy biodiversity; and massive amounts of fossil fuels are burned in agricultural production, post-harvest processing, and shipping. Nevertheless, farming operations have largely escaped the post-1970 expansion of federal environmental regulation. Compounding the problem, federal farm policy has encouraged the very farming practices that most cause this degradation.

In 1990, Congress passed the Organic Foods Production Act (OFPA), which created an organic food certification and labeling system. While OFPA’s primary purposes are to facilitate the growth of the organic sector and to protect consumers, this Note suggests that the Act’s secondary purpose, underimplemented by the United States Department of Agriculture (USDA), is to foster sustainable farming practices. This Note explores whether the OFPA’s organic labeling system does or could fill the regulatory gap described above.

This Note finds that under current standards the labeling program does not foster sustainable farming, not only because of shortfalls with the standards themselves but also because the market suffers from a freerider problem: Organic foods cost more, but consumers do not want to pay more for dispersed public benefits. Strengthening the standards would drive up production costs and exacerbate the freerider problem, but this Note argues that the USDA could mitigate the resulting decline in demand by taking advantage of the fact that organic products bundle sustainability, a public good for which people are not willing to pay much, with health, a private good for which many people are willing to pay more.

Guns, Butter, and Judges: Judicial Frameworks for Cases Implicating Security-Wealth Tradeoffs

L. Rush Atkinson

Many policies in foreign affairs law increase national security at the expense of national wealth and vice versa. Courts have struggled to find a suitable framework for adjudicating cases arising out of these policy decisions. In the recent case United States v. Eurodif S.A., the Supreme Court seemingly abandoned previous assumptions about security-wealth cases, relying instead on the Chevron framework commonly used in administrative law. This Note outlines the potential shift to Chevron and its merits vis-à-vis older frameworks for security-wealth cases. It concludes that Eurodif may well represent a profound change in the Court’s treatment of international relations and predicts that continued application of the Chevron framework will improve foreign policymaking.