Volume 22, Issue 3
Volume 22, Number 3 Spring 1995
MATTHEW O. TOBRINER MEMORIAL LECTURE
Exposing Human Rights Abuses--A Help or Hindrance to Reconciliation? (page 607)
By Richard Goldstone
Despite the advent of the "new world order," international human rights violations remain a widespread problem. The propensities for such abuses are seen most recently through the widespread violence and genocide encountered in Yugoslavia and Rwanda. In an effort to address such abuses, the United Nations established the International War Crimes Tribunal for the Balkan States and Rwanda. The chief goals of the Tribunal are to collect data and try those accused of war crimes. Justice Richard Goldstone, the Tobriner lecturer, is the Prosecutor of the Tribunal.
In his lecture, Justice Goldstone describes how "truth commissions" have been used to address human rights violations throughout this past century. Justice Goldstone identifies where these truth commissions have succeeded in bringing about reconciliation, and where they have failed. Justice Goldstone then uses this historic backdrop to explain how the International War Crimes Tribunals was designed to function.
ARTICLES
Dangerous Misperceptions: Protecting Police Officers, Society, and the Fourth Amendment Right to Personal Security (page 623)
By Kathryn R. Urbonya
Under the Fourth Amendment, when police officers use force, they must adhere to a "reasonableness" standard. This abstract standard, however, has left much room for interpretation, creating a common misperception of Fourth Amendment protections of personal security. Specifically, many courts use the concept of danger to decide whether force is reasonable--that is, force is justifiable so long as danger is posed to the police officers.
This article argues that factors--other than danger--should guide whether force is reasonable. Moreover, this Article provides specific guidelines to ascertain when the Fourth Amendment is violated.
Does the Constitution Follow the Flag Into the Territories or Can it be Separately Purchased and Sold? (page 707)
By Marybeth Heral
A 1992 Ninth Circuit decision, Wabol v. Villacrusis, revisited the issue of to what extent constitutional protections apply to United States territories. This long-troublesome question has been made more difficult by the infrequency of decisions and the varying relationships the territories have with the United States government. The Northern Mariana Islands became a Commonwealth in 1976, and were then joined with the United States in a consensual and unique relationship that is defined by a Covenant. The Covenant explicitly exempted the Northern Marianas from the application of certain constitutional provisions, including the Equal Protection Clause as applied to racial restrictions on the alienation of land. It is this last question that the Wabol court addressed.
Using that case as a starting point, the author examines the role of the Constitution in defining the relationship between the United States and its flag territories. She traces the history of decisions in this area, beginning with the Insular Cases of nearly a century ago, and offers some criticism of the decisions. The author then looks at the practical consequences of this jurisprudence, using the Northern Marianas as a case study. With that as background, she offers policy suggestions to improve United States-territorial relationships regarding the Constitution.
Access to Eagles and Eagle Parts: Environmental Protection vs. Native American Free Exercise of Religion (page 771)
By Antonia De Meo
The use of eagles and eagle parts, such as feathers and bones, are essential to Native American religious practices. The federal government has sought to protect American eagles through various mechanisms due to their endangered status. Under one such mechanism, Native Americans must undergo a lengthy and intricate permit process to receive eagles and eagle parts for use in religious ceremonies. Oftentimes, eagles and eagle parts are only released after periods and long as five years. Furthermore, when the needed eagles and eagle parts do arrive, they are often unfit for ceremonial use.
This Article addresses current problems with the federal eagle permit system, exploring various challenges to the federal scheme. Such challenges include relying on the Free Exercise Clause of the First Amendment, the American Indian Religious Freedom Act, and the Federal Indian Trust Doctrine. The author concludes by arguing that Congress should revise the current eagle permit system or pass new legislation so that Native American religious practices are protected.
Killing Me Softly: Is the Gas Chamber, Or Any Other Method of Execution, "Cruel and Unusual Punishment?" (page 815)
By Peter S. Adolf
Although people have debated the wisdom of the death penalty for centuries, little attention has been paid to the actual killing process. With the pace of executions in the United States increasing dramatically in recent years, courts have begun to grapple with the question of what the government can and cannot do in the process of lawfully killing someone. The decisions have been illogical and contradictory: at the time of this writing, hanging is permissible in Washington State and Montana, while California's gas chamber is unlawful "cruel and unusual punishment." The Supreme Court has never decided what the permissible limits of cruelty in the death chamber might be, or even articulated what criteria the lower courts should use to decide the issue.
After examining the history of Eighth Amendment jurisprudence, as well as the mechanics and drawbacks of the give methods of execution currently in use in America, this Note proposes a three-step inquiry into whether a particular method is "cruel and unusual." First, one must select the other methods against which to judge the method in question. Second, and perhaps most difficult, one must assess each method's cruelty relative to the others, examining the different ways each violates "human dignity"--a concept the Note examines in great detail. Finally, looking at the newly ranked methods, one must decide where to draw the line on the spectrum of cruelty between the permissible and impermissible way of killing. In analyzing this last step, the Note examines the current prevailing view of the Eighth Amendment, as well as the historical interpretation favored by the Supreme Court's conservative wing.
This Note concludes that of all the lawful killing methods in use today, the gas chamber is the most vulnerable to constitutional attack, whatever the mode of Eighth Amendment interpretation; and that if there are any limits left on what the State may do to a condemned prisoner in the process of killing her, death by cyanide gas is beyond those limits.
Cameras in the Restroom: Police Surveillance and the Fourth Amendment (page 867)
By William O'Callaghan
Everyone has occasion to use public restrooms at one time or another, and the recognition is commonplace that what activities take place are very personal. Nevertheless, there is a long history in this country of police surveillance of these areas. This Note discusses the expectation of privacy that should be accorded users of public restrooms in the context of police surveillance of those using public restrooms for sexual purposes. Of particular interest, Mr. O'Callaghan breaks down his analysis of the expectation of privacy in public restrooms into three areas: the common area, doorless stalls, and closed-door stalls.
COMMENT
Fourth Amendment Protection for Juvenile Probationers in California, Slim or None?: In re Tyrell J. (page 893)
By Lidia Stiglich
The Supreme Court of California recently held in re Tyrell J. that juvenile probationers are subject to random, suspicionless searches. This Comment analyses in detail the reasoning the court used to distinguish the level of suspicion required for juvenile probationers from that used for the population at large and offers some criticism of that logic. Moreover, Ms. Stiglich explores the rationales for probation and parole in general, and examines legal precedent for searches without probable cause of adult probationers and parolees and the relevance of consent to this analysis. To this end, the author discusses the Bravo, Martinez, and Gallegos cases as background for understanding the court's reasoning in, and the author's criticism of Tyrell.