Georgetown Law Journal

Publisher:: Georgetown University Law Center
Publication date:: 2022-07-01

ISBN:: 0016-8092

Issue Number

No. 111-6, June 2023

Latest documents

The Dissociative Theory of Punishment
The American public has complex views on criminal punishment. They are driven primarily by retributive motivations. But they have other justice considerations, such as restoration and rehabilitation, that can be activated in different ways. Laypersons are also motivated to psychologically distance and dissociate from those they perceive to be criminal "others" and to see punishment itself as a kind of dissociation, embodied by the prison form. The psychological processes that produce these beliefs lead to an insistence on prison as a necessary criminal justice outcome, despite reservations about its effectiveness and concerns about the state of mass incarceration and punitive penal policy more generally. This Article builds on the psychology of punishment literature to offer a deeper understanding of the dissociative theory of punishment and how it produces the belief in the necessity of prison. Drawing on original, qualitative focus group data and analysis, this Article identifies the specific psychological mechanisms that motivate dissociation, explains the role of the belief in retributive justice as part of this process, and offers nuanced insights into the contours of the dissociative theory and the way people psychologically reason about criminal punishment. Identifying the components of the dissociative process and those beliefs that are malleable has important practical and normative implications. It also suggests the possibility of a different approach to criminal punishment. Leveraging insights from focus group analysis as well as original experimental work, this Article suggests a normative approach—restorative punishment—that is more responsive to lay psychology. This Article discusses strategies consistent with this approach that may be effective in disrupting dissociation and building support for alternatives to incarceration, including bridging connections with criminal actors, reframing alternatives to incarceration in ways that better align with the retributive motivations of the public, and activating other conceptions of justice that are not well served by the imposition of a prison sentence. It then explores two specific criminal justice policies through this normative lens—restorative justice diversion and second look resentencing—and discusses their psychological appeal. This Article ends by offering an empirical agenda to test the mechanisms that drive dissociation and explores the potential for a restorative punishment approach to criminal justice policy
Amoral Water Markets?
Severe water scarcity in the western United States is prompting legitimate questions about the best way to decide which places, people, industries, and species need it most. Water markets, which allow for trading water like a commodity, are perennial proposals during times of scarcity. Water markets have an innate allure: promising to efficiently reallocate water to the highest value uses, minimize risk, and preserve the environment, while relying on the invisible hand to brush aside politically painful values-based questions. This view portrays markets as an amoral arbiter of the best use of water. But water markets are not amoral; they express the historic value judgments baked into the existing western water law system, and layering market approaches over the existing system will both exacerbate the negative impacts of those values and further entrench existing law. In this Article, we show that the West is not ready for water markets. We rely on institutional economics, environmental justice, and commons scholarship to identify three core faults of water markets. First, an institutional economics perspective removes the veil of neutrality and efficiency of markets. Markets are embedded in a political economy and physical geography that makes market failure inherent. Markets depend on legal institutions (property rights, courts, etc.) for their existence and cannot be separated from the value judgments embodied by those institutions. Ultimately, water markets do not determine values—they express them. Second, drawing from environmental justice literature, we argue that markets impede equity and fairness. Markets express the antiquated values baked into the initial distribution of property rights, with lasting consequences for justice today. Markets also displace the participatory governance environmental justice requires. Third, applying commons literature to water markets, we conclude that markets impede reinvigorated water governance by both decreasing current governance and creating incentives and concentrating political power in a way that frustrates future governance. Market advocates argue that water markets maximize social welfare by maximizing economic efficiency, but our analysis shows that this fails in our current institutional setting. Our analysis also suggests a way forward that everyone who wants a better water future could agree on, market advocates and market skeptics alike. Improved water governance, either as an end in and of itself or as a first step toward deployment of markets, should be the priority for anyone seeking to address water scarcity in the western United States
The Double Exclusion of Immigrant Youth
Congress created Special Immigrant Juvenile Status (SIJS) in 1990 to protect vulnerable children from deportation by providing a pathway to lawful permanent residency and citizenship. Although relatively few immigrant children applied for SIJS in the early years of the program, the number of SIJS petitions grew significantly over the past decade. The growth of SIJS petitions coincides with growing numbers of immigrant youth arriving at the U.S.–Mexico border and with the politicization of immigrant youth who are increasingly represented as national security threats. Despite the high stakes of SIJS cases, remarkably little empirical research examines the bureaucratic implementation, procedural outcomes, and social effects of the SIJS program. Immigrant youth who apply for SIJS may face discrimination based on age, immigration status, race, class, gender, sexual orientation, and language use. SIJS petitioners are often approaching a formative stage of social development, the transition from childhood to adulthood, which exacerbates the consequences of SIJS delays and outcomes. Moreover, SIJS petitioners are subject to disparities in representation, immigration and criminal enforcement, and access to visas based on national quotas determined by Congress. There is, therefore, an urgent need to understand whether the SIJS program accomplishes its stated goal of protecting children or undermines its humanitarian objectives by exacerbating immigrant children's vulnerability. To address this need, this Article presents a systematic study of children seeking SIJS and SIJS-based lawful permanent resident (LPR) status using anonymized case-by-case SIJS data obtained from U.S. Citizenship and Immigration Services (USCIS) through the Freedom of Information Act. The data in this Article represent 153,374 I-360 petitions for SIJS filed between 2010 and 2021, and 35,651 I-485 LPR applications filed between 2013 and 2021. As a result of this analysis, the Article finds that the SIJS program has failed to meet the growing need for fair and timely protection for vulnerable immigrant children. Instead, SIJS petitioners encounter avoidable delays, inconsistent denial rates, and a growing backlog of SIJS petitioners who are already approved for SIJS but whose lives are on hold while they wait for visas to become available. In addition to raising significant concerns about USCIS's management of the SIJS program, these findings have broader implications for how legal scholars conceptualize the relationship between immigrant youth, purportedly humanitarian immigration policies, and the administrative state. We argue that, rather than viewing immigrant youth only as vulnerable subjects who appeal to the state for protection, immigrant youth's vulnerability vis-à-vis the state should be theorized as a form of politically induced vulnerability—or what some scholars have referred to as "precarity." We argue that precarity manifests itself in SIJS petitioners as what we call a crisis of double exclusion, which refers to immigrant children's exile from a protected childhood as well as exclusion from a successful transition to adulthood. These findings illustrate the need for future research on SIJS, ongoing monitoring of the program, and institutional reforms. Ultimately, we call for action to improve the SIJS program and build power for immigrant children
Dishonoring the Earth: Ecocide as Prosecutable Genocide Against Indigenous People
Under Conditions of Hardship': The Peace Corps' Catch-22 for Survivors of Sexual- and Gender-Based Violence
The Peace Corps' treatment of Volunteers and trainees, particularly with regard to the policies and permissiveness surrounding sexual- and gender-based violence, reflects and perpetuates workplace sex discrimination. Because the agency fails to collect adequate data, it is impossible to determine the precise nature and degree of the problem, but it is likely worse than what annual reports have described as a persistently growing crisis despite twenty years of criticism, activism, and reform efforts. Without legally enforceable accountability mechanisms—the simplest and most effective of which would be to recognize Volunteers and trainees as federal employees—the discrimination is likely to continue
Whitewashing the Fourth Amendment
A conventional critical race critique of the Supreme Court and its Fourth Amendment jurisprudence is that it erases race. Scholars argue that by erasing race, the Court has crafted doctrine that is oblivious to people of color's lived experiences with policing in America. This Article complicates this critique by asking whether it is solely the Court that is doing the erasing. It explores how race was—or more accurately, was not—litigated in seminal Fourth Amendment cases scholars have targeted for attack: Florida v. Bostick, Illinois v. Wardlow, and United States v. Drayton. As the Article shows, race was not raised, let alone litigated, in these important Fourth Amendment cases, even though the defendants in all three cases were Black. This Article therefore rounds out the racial critiques of the Court and its Fourth Amendment jurisprudence. Rather than solely blame the Supreme Court, maybe we should hold attorneys partially responsible for the erasure of race. Perhaps by not raising race, the profession has given the Court license to ignore race in its Fourth Amendment case law. This Article underscores the need to reevaluate how we as a profession choose to address or ignore race. It proves that the profession more broadly is complicit in the whitewashing of the Fourth Amendment. And importantly, the insights of this Article extend beyond criminal law and even beyond race. There is much work to be done to better understand how lawyers contribute to marginalization under law
Immigration Law's Missing Presumption
The presumption of innocence is a foundational concept in criminal law but is completely missing from quasi-criminal immigration proceedings. This Article explores the relevance of a presumption of innocence to removal proceedings, arguing that immigration law has been designed and interpreted in ways that disrupt formulating any such presumption to facilitate deportation. The Article examines the meaning of "innocence" in the immigration context, revealing how historically racialized perceptions of guilt eroded the notion of innocence early on and connecting the missing presumption to persistent associations between people of color and guilt. By analyzing how a presumption of innocence is impeded at multiple decision points, from the investigations stage to detention, removal, and even post-conviction relief, the Article demonstrates the cumulative disadvantage that the system inflicts. Finally, the Article argues that immigration law not only is missing its own presumption of innocence but also erodes the presumption of innocence in criminal law. The Article offers three examples of this phenomenon involving immigration law's treatment of pending charges, untested arrest reports, and unproven facts related to a crime. By shedding light on how immigration law undermines a presumption of innocence and reinforces racialized perceptions of guilt, this Article reveals a form of covert racial discrimination in the immigration code
The Abolition of Food Oppression
Public health experts trace the heightened risk of mortality from COVID-19 among historically marginalized populations to their high rates of diabetes, asthma, and hypertension, among other diet-related comorbidities. However, food justice activists call attention to structural oppression in global food systems, perhaps best illuminated by the prevalence of unhealthy fast-food restaurants (and the lack of healthy alternatives) in lowincome Black and Hispanic/Latinx neighborhoods nationwide. In response, local governments have begun to prioritize local food production to reduce food insecurity. Yet, even well-intentioned food justice initiatives, such as urban farming programs, can perpetuate structural inequities by glorifying entrepreneurialism or privatization as effective solutions to poverty. Further still, when lawmakers propose targeted relief programs for food insecure communities, such as the Biden Administration's federal debt relief program for socially disadvantaged farmers, they are routinely challenged on constitutional grounds for preferencing non-White racial and ethnic groups. Thus, food insecurity in the urban ghettos and rural towns of America persists. To defeat this impasse, this Article advocates an abolition constitutionalist framing of food insecurity in the United States. Specifically, it argues that framing the problem of food insecurity in historically marginalized communities as a badge of the antebellum system of chattel slavery invokes the legislative potential of the Thirteenth Amendment's Enforcement Clause. Although the Supreme Court has empowered Congress to pass laws necessary for abolishing all badges and incidents of slavery, there remains a lack of clarity on the scope of material conditions or forms of discrimination that constitute such lingering harms, leading some lower courts to limit the Amendment's enforcement to literal slavery or involuntary servitude. Accordingly, this Article proposes a dignity based normative framework to assess the nature of injuries or material conditions that are proximately traceable to the political economic system of American slavery. Using the problem of food insecurity as a guiding explanatory thread, this framework reveals how modern badges of slavery can inflict: (i) equality-based; (ii) liberty-based; and (iii) integrity-based dignitary harms. These dignitary harms, individually and collectively, can perpetuate the types of oppression levied by chattel slavery; in this instance, the exploitative, marginalizing, and violent harms of food oppression. Whether modern-day food oppression is animated by state action (or inaction) or by private actors, it not only hinders public health and degrades democracy, but most importantly, it also violates the spirit and letter of the Thirteenth Amendment
The Racialized Violence of Police Canine Force
Don't Take the Blue Pill: A Law and Political Economy (LPE) Critique of the Pharmaceutical Industry