Volume 17 / Number 1 / 2013

                  

ARTICLES

 

OREGON’S DEATH PENALTY: THE PRACTICAL REALITY

Aliza B. Kaplan

17 Lewis & Clark L. Rev. 1 (2013)

In November 2011, Oregon Governor John Kitzhaber declared a moratorium on the Oregon death penalty, calling it a system that is “compromised and inequitable” and “fails to meet basic standards of justice.” With Governor Kitzhaber’s refusal to allow any further executions under his watch, Oregon became one of the most recent states to withdraw from the death penalty. Indeed, Governor Kitzhaber’s statement recognized the practical and financial difficulties with, and ultimately the unjustness of, Oregon’s death-penalty system and, as such, called on Oregonians to discover a better alternative.

In this Article, Professor Kaplan examines Oregon’s lengthy and dysfunctional death-penalty system and the practical realities that make it so problematic. The discussion analyzes the history of Oregon’s death penalty; the serious and prevalent issue of wrongful convictions across the country (including Oregon); the extraordinary taxpayer costs associated with maintaining the death penalty in Oregon, where only two people—both of whom were volunteers—have been executed; and the changes in state law and death penalty jurisprudence that have slowed the administration of Oregon’s death penalty to render it ineffective. Professor Kaplan argues that, given these practical concerns, the Oregon death penalty, as it currently stands, is in serious need of examination from a public policy standpoint to ensure that cost, effectiveness, and time, are given proper consideration. To do this, she recommends that Governor Kitzhaber designate a non-partisan committee to study Oregon’s death penalty as it currently stands and report its findings. Professor Kaplan concludes that a comprehensive committee report on Oregon’s death penalty will ultimately allow Oregonians to decide whether to maintain or abolish the death penalty.

A FAMILY AFFAIR? DOMESTIC RELATIONS AND INVOLUNTARY PUBLIC FIGURE STATUS

Mark P. Strasser

17 Lewis & Clark L. Rev. 69 (2013)

Public figures seeking defamation damages have a higher burden to meet than do private individuals. Because claims of defamation by public figures can raise free speech concerns, courts have developed constitutional limitations on defamation damages in certain situations. Over the past 50 years, the Supreme Court has neither agreed on a clear method by which to determine who counts as a public figure nor on how to apply those criteria that have been suggested. This lack of clarity has led to confusion and inconsistency in the lower courts. The concept of the involuntary public figure illustrates the problem.

This Article traces the development of the constitutional limitations on defamation, as well as the expansion of the classification of involuntary public figures. In some cases, limitations on defamation damages apply merely because an individual’s familial status has temporarily placed him in the limelight. This Article concludes that the involuntary public figure status has been overextended in the lower courts and that the Supreme Court should clarify when and why that status should be conferred. Unless the Court offers some clear guidelines and applies those guidelines in an understandable way, the chaos in this area will undoubtedly continue.

PARSING PARENTHOOD

Cynthia Godsoe

17 Lewis & Clark L. Rev. 113 (2013)

The story public family law tells about parenthood is both inaccurate and normatively misguided. Parents are deemed “bad” because of their need for state support, and the parent–child relationship is accordingly devalued. This devaluation has resulted in costly and ineffective child welfare policies, embodied in the Adoption and Safe Families Act (ASFA) and related state laws. Child maltreatment costs an estimated $103.8 billion annually, yet its incidence is not decreasing. Thousands of youth “age out” of foster care each year as legal orphans, with no connection to a family and very poor prospects.

This Article explores the consequences of this flawed framework, including the failure to recognize the socioeconomic factors underlying most child maltreatment and the disregard for the real ties between parents and children after families are separated. It argues that child welfare policies will not succeed until the underlying parenthood framework changes; implicit cognitive biases channel even new interventions in a way that stigmatizes marginalized families and over-prioritizes adoption as a panacea. This Article concludes by considering some promising paths to remapping public parenthood, incorporating lessons from the public health preventive approach and from the private family law system’s disaggregation of parental rights and responsibilities.

TERRORISTS, INFORMANTS, AND BUFFOONS: THE CASE FOR DOWNWARD DEPARTURE AS A RESPONSE TO ENTRAPMENT

Francesca Laguardia

17 Lewis & Clark L. Rev. 171 (2013)

The question of entrapment has received renewed attention as law enforcement stings have become more and more common in terrorism investigations. While even the judges on certain cases have become convinced that defendants were entrapped, the defense remains a universal failure. This Article suggests that the concept of entrapment remains valuable in the context of terrorism prosecutions, but that juries may not be relied upon to acquit entrapped defendants. A better solution would be extreme sentencing departures on the part of judges, which would protect the purposes of the entrapment doctrine while increasing the likelihood of its success. This Article first looks to the law and purposes of entrapment generally, then addresses the specific contours of entrapment in the context of terrorism investigations. Operational capacity of defendants is identified as a particularly telling aspect of the balancing of purposes in the entrapment doctrine. While this Article shows that operational capacity is already influencing sentencing, true protection of the interests at stake in the entrapment doctrine would be better protected by more severe downward departures, even below statutory minimum sentences.

RETHINKING RESTITUTION IN CASES OF CHILD PORNOGRAPHY POSSESSION

Jennifer A.L. Sheldon-Sherman

17 Lewis & Clark L. Rev. 215 (2013)

Child pornography is increasingly prevalent in today’s society and is now one of the fastest growing Internet activities. Unlike producers, possessors of child pornography do not actively engage in the physical and sexual abuse of children. However, possessors are viewers of this documented abuse and rape, and can be, therefore, similarly responsible for the perpetual victimization of innocent youth. In 1994, Congress sought to protect victims of sexual exploitation and child pornography with the passage of the Mandatory Restitution Provision, 18 U.S.C. § 2259. While the meaning of § 2259 seems to unambiguously require restitution from defendants convicted of production, distribution, and possession of child pornography, courts’ interpretation of the provision have been less clear. Courts unhesitatingly order restitution in cases where the offender is responsible for the production of child pornography and is, therefore, directly linked to identifiable victim harm. More problematic, however, are cases where a victim seeks restitution against a defendant who did not produce the pornography but rather possessed it. In these cases, courts confront the issue of whether a victim must prove a causal connection between the defendant’s possession of the pornography and the victim’s alleged harm. To date, the literature has focused on whether § 2259 contains a proximate cause requirement. I seek to advance this discussion, arguing that regardless of the interpretation of § 2259, the statute is not an appropriate means of compensating victims while also ensuring fairness for defendants. Accordingly, the statute as it currently operates is inefficient and unjust. This Article addresses that injustice, evaluating the underlying controversy regarding restitution for victims of child pornography possession under § 2259, discussing the judiciary’s approach to the issue, analyzing the difficulty in awarding restitution under § 2259 in cases of child pornography possession, and advocating a reformed system for issuing restitution in these cases.

 

NOTES & COMMENTS

 

BURIED ALIVE: THE CONSTITUTIONAL QUESTION OF LIFE WITHOUT PAROLE FOR JUVENILE OFFENDERS CONVICTED OF HOMICIDE

Aryn Seiler

17 Lewis & Clark L. Rev. 293 (2013)

In a string of recent cases, the Supreme Court has recognized the legal effect of juvenile defendants’ diminished culpability. This has led to a shift towards a jurisprudence that protects juvenile offenders from the most severe penalties. This Note argues that, since Graham v. Florida, juvenile life without parole is a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment, regardless of the offense. It first traces the development of contemporary juvenile justice, looking to the first system in New York and to early Supreme Court decisions regarding procedural due process rights for juvenile defendants. Next, the Note looks to the distinction that Eighth Amendment case law has made between capital and noncapital offenses and the abandonment of this distinction in Graham. It analyzes the two mandates from Graham and argues that the first mandate, that the court must consider youth as a mitigating factor in handing down a sentence, applies beyond sentencing considerations. The second mandate requires lower courts to guarantee the possibility of release of juvenile defendants, regardless of the severity of the offense or sentence. In the final Part, this Note applies the logic of Graham to State v. Ninham, a recent Wisconsin Supreme Court case. The author finds that juvenile life without parole is a violation of the Eighth Amendment’s bar on cruel and unusual punishment in all circumstances, and this conclusion must inevitably disturb the current sentencing structure of the entire criminal justice system.

BORN TO BE AN OFFENDER? ANTISOCIAL PERSONALITY DISORDER AND ITS IMPLICATIONS ON JUVENILE TRANSFER TO ADULT COURT IN FEDERAL PROCEEDINGS

Amanda Tufts

17 Lewis & Clark L. Rev. 333 (2013)

Antisocial personality disorder (ASPD) has become a common term to describe individuals demonstrating life-long psychopathic tendencies. This use of ASPD is misguided and can result in the permanent stigmatization of individuals so labeled, and it is particularly concerning when used to label juveniles. The diagnostic criteria for ASPD excludes individuals who have not reached the age of 18, and yet ASPD is still a term found in numerous judicial opinions involving juvenile defendants. This Note discusses the DSM-IV-TR criteria for ASPD, potential causes of ASPD, and the societal impact of receiving an ASPD diagnosis, with a specific focus on the use of ASPD within judicial decisions to transfer juveniles to adult court. The transient nature of a majority of juvenile offending, in addition to the potential confusion of ASPD with psychopathy and the inaccurate bias this may cause against juveniles, raises significant concerns regarding any consideration of ASPD within juvenile proceedings.