Volume 23, Issue 2

Volume 23, Number 2                                                                                                       Winter 1996

THE PROMISE OF STATE CONSTITUTIONALISM

CAN IT BE FULFILLED IN SHEFF V. O'NEILL? (p. 351)
By Gayl Shaw Westerman

Sheff v. O'Neill, which is to be decided by the Connecticut Supreme Court this year, is the first case in two decades to challenge the doctrine and rationale of federal school desegregation cases, i.e., that a metropolitan-wide remedy cannot be employed to cure metropolitan-wide school segregation unless state action, infused with discriminatory intent has caused such segregative conditions. The Sheff case is considered a landmark case because it is the first to challenge the federal approach in a state court on the basis of state constitutional provisions alone.

This Article argues that the federal state action discriminatory intent, causation standard should be rejected by state courts acting under their own constitutions. Moreover, the Article sets forth an alternative analytical framework which might enable state courts to resolve, rather than to perpetuate metropolitan-wide segregation.

GOOD KIDS, BAD KIDS: A REVELATION ABOUT THE DUE PROCESS RIGHTS OF CHILDREN (page 407)
  By Cecilia M. Espenoza

In the case of Reno v. Flores, the United States Supreme Court held that the indefinite detention of unaccompanied, immigrant children without a mandatory hearing before an immigration judge did not violate the children's substantive or procedural due process rights. To fully examine the procedural and substantive due process rights of these children, the Article engages in an analysis of children's due process rights in general, and then places the Reno v. Flores decision in context.

A PRO-DEATH, SELF-FULFILLING CONSTITUTIONAL CONSTRUCT:

THE SUPREME COURT'S EVOLVING STANDARD OF DECENCY FOR THE DEATH PENALTY (page 455)
By Susan Raeker-Jordan

In recent Eight Amendment decisions applying the Cruel and Unusual Punishment Clause to substantive challenges to the death penalty, a plurality of the United States Supreme Court has favored employing only the "evolving standards of decency" test of constitutionality, purportedly because it is an objective measurement of cruelty and unusualness. The Article will show, however, that contrary to the assertions of some Court members, the indicia for ascertaining the evolving standard of decency are far from objective. Rather, the evidence gleaned from he "objective indicia" of legislative enactments and jury sentencing behavior can be and has been rigged to favor death, both through the selective evaluation of legislative enactments and the creation of procedural rules that slant juror decisionmaking toward death sentences.

This Article concludes that to counter the manipulability of the "objective" prongs of the evolving standards test and the resultant self-fulfilling nature of the entire jurisprudential construct, the Court should consider all state capital punishment legislation, and should not confine its consideration only to American conceptions of decency. Continued reliance on the Court's own assessment of proportionality and the furtherance of penological goals as additional constitutional benchmarks is also necessary to prevent the self-fulfilling nature of the evolving standards construct from eliminating any real constrain on the penalty.

NOTES

AGGRESSIVE PANHANDLING LEGISLATION AND THE CONSTITUTION: EVISCERATION OF FUNDAMENTAL RIGHTS-OR VALID RESTRICTIONS UPON OFFENSIVE CONDUCT? (page 557)
By Darryl C. Delmonico

The phrase "Brother, can you spare a dime?" was spawned during the Great Depression and originally evoked sympathy and compassion from all but the most hardened listeners. Fifty years later, while economic realities persist, public perceptions and legislative responses have changed. With the middle class slowly becoming extinct, a widening chasm is developing between the 'haves' and the 'have-nots.' The prevalence of panhandlers in communities across the United States is a testament to this phenomenon. With this surge in panhandling has come increased public dissatisfaction. Legislators have reacted to this dissatisfaction by enacting legislation designed to criminalize intimidating or threatening conduct associated with a panhandler's request for alms. As with any restrictions that involve fundamental liberties, this legislation must be carefully scrutinized.

This Note examines the constitutionality of aggressive panhandling statutes in the context of the First Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment to determine at what point these restrictions violate those individual rights. This Note concludes that aggressive panhandling statutes can pass constitutional muster as long as they are thoughtfully and cautiously drafted.

CONFUSION IN THE COURTS: THE FAILURE TO TAX PUNITIVE DAMAGES UNIFORMLY IN PERSONAL INJURY CASES (page 591)
By Margaret L. Thum

This Note compares recent circuit cases reaching different opinions on whether punitive damages received on account of personal injuries are taxable under Internal Revenue Code section 104(a)(2). These differing opinions result in disparate taxation of federal taxpayers that violates the rule of uniformity in Article 1, section 8, clause 1 of the United States Constitution. To provide a remedy, this Note proposes a rule to encourage the uniform application of federal income tax statutes.