Articles
Vol. 57, No.6 June, 2006
The Right to Counsel in Criminal Cases, A National Crisis
Mary Sue Backus and Paul Marcus
Two years ago, on the fortieth anniversary of Gideon v. Wainwright, the Constitution Project and the National Legal Aid & Defender Association formed a partnership -- funded by several organizations -- to consider the way in which the Sixth Amendment right to counsel actually functions in criminal cases throughout the United States. The concept was to create a truly national committee with participants from every relevant sector of the criminal justice system, which would conduct research throughout our country, advise our fellow citizens on the matter, and construct recommendations for reform. The authors serve as Reporters to the Committee.
The national research took about eighteen months and has now been completed by American University, Arnold & Porter LLP, and the College of William and Mary. The report and recommendations of the committee are nearing completion and are expected to be released in fall 2006. While the report will be written primarily for a non-lawyer audience of policymakers, this Article is more comprehensive. It covers the research in all fifty states -- something not done for more than three decades -- and lays out recommendations for change. The research reveals that the states face overarching, common issues in meeting the constitutional obligation established in Gideon v. Wainwright and in later federal and state cases. The report shows compelling evidence of a true constitutional crisis, as detailed in this Article.
Welfare to What?
Noah Zatz
Ten years ago, President Clinton fulfilled his campaign pledge to end "welfare as we know it" by signing sweeping federal welfare reform legislation. The replacement of Aid to Families with Dependent Children (AFDC) with Temporary Assistance for Needy Families (TANF) marked an important transformation in the character of the American welfare state. Work provided the core of the much-touted public policy consensus underlying this transformation, one that simultaneously restricted and expanded the availability of government transfers to low-income Americans. While tough new TANF work requirements cut back on welfare for those who did not work, those who did work but remained poor received new relief through massive expansions of the Earned Income Tax Credit (EITC) designed to "make work pay."
Precisely what qualifies as work recently became a central point of controversy during Congress' struggle to reauthorize and substantially rewrite the TANF statute. The definition of work determines who feels the sting of new restrictions on welfare and who receives the support of new transfers through the EITC. This Article examines how the centerpieces of federal welfare reform, TANF and the EITC, actually implement work requirements and define "work," both at the federal and state levels. This Article also demonstrates a striking level of variation in how state law permits TANF recipients to satisfy their work requirements.
Notes
Delinquent or Disabled? Harmonizing the IDEA Definition of "Emotional Disturbance" with the Educational Needs of Incarcerated Youth
Moira O'Neill
Congress enacted the Individuals with Disabilities Education Act (IDEA) to meet the special education needs of disabled youth. Yet the Department of Education regulations defining "emotional disturbance," one of the qualifying disabilities under the IDEA, have consistently defined the term to exclude youth diagnosed as "socially maladjusted." Special education scholars and professionals have long criticized this definition of emotional disturbance as imprecise and inconsistent with mental health constructs of emotional and behavioral disorders. Incarcerated youth are particularly affected by this definition of "emotional disturbance," as they demonstrate a higher prevalence of special educational needs than does the public school population. Without justification in special education research, the exclusionary language eliminates basic educational opportunities for a major segment of the disabled population. It is inconsistent with the goals of the IDEA and out of harmony with the primary goal of the states' intervention with these youth: education, rehabilitation and reduction of recidivism.
Part I of this Note discusses the development and history of education and rehabilitation within the American juvenile justice system. Part II discusses the role of the IDEA in meeting special education needs and the development and impact of the "socially maladjusted" exclusionary language. Part III demonstrates that the current regulation excluding socially maladjusted youth is inconsistent with the underlying goal of the IDEA and the rehabilitative and educational goals of the juvenile justice system. This Note concludes that the regulation defining emotional disturbance should be more consistent with mental health constructions of emotional and behavior disorders, yet be limited to the impact on the child's education.
The Rebirth of Morrissey: Towards a Coherent Theory of Due Process for Prisoners and Parolees
Sharif A. Jacob
The Supreme Court's due process jurisprudence has variously relied on two inconsistent theories of due process. Until the 1970s, the Supreme Court located liberty interests in the power of the state. In 1972, the Supreme Court issued Morrissey v. Brewe, a landmark decision that instead located liberty interests in the natural condition of man. Morrissey expanded due process protections for prisoners and outlined a coherent standard by which due process claims could be adjudicated. However, over the next two decades, the Supreme Court retreated from this standard of due process, circumscribing the protections Morrissey afforded.
This Note demonstrates that recent decisions of the Supreme Court have returned to the natural rights theory of due process the Court set forth in Morrissey. Lingering language in Supreme Court decisions suggests that states have the power to generate liberty interests. The author proposes three remedies for confining the effect of such language. The Note also recommends a way to resolve a simmering circuit split over the due process rights of parolees.
Symposium
| Introduction and Dedication |
Brian Gray |
| Keynote Adress |
Roderick E. Walston |
| Hetch Hetchy: To Drain or Not to Drain |
Brian Gray, David Behar, Heather Dempsey, Ron Good,and Ray McDevitt |
,
Can California afford to lose a major reservoir, even if it restores a jewel of Yosemite Valley? The California Department of Water Resources is scheduled to release a report (requested by Governor Schwarzenegger) on the feasibility of draining the Hetch Hetchy Reservoir and restoring the valley that John Muir referred to as "one of natures rarest and most precious mountain temples." Proponents and opponents disagree over the cost of dam removal and valley restoration. This Panel of experts discussed and debated the numerous issues related to this matter.
Waste Discharge Requirements: Beyond the Point Source
David Cory, Linda Sheehan,
and Terry Young
Recent amendments to the Porter-Cologne Water Quality Act withdraw the general waiver for agricultural discharge. Discharges from agricultural lands include irrigation return flow, flows from tile drains, and storm water runoff. Historically, most regional boards regulated these discharges, but recent legislation now requires regional boards to review and renew their waivers or replace them with waste discharge requirements. This Panel of experts discussed the impact of these modified waiver requirements as well as their appropriateness and efficacy in ameliorating waste discharge issues.
Yuba River Accord: Lessons Learned in Moving from Controversy to Consensus
Paul Bartkiewicz, Chuck Bonham,
Banky Curtis, and Jerry Johns
Working with a broad coalition of seventeen agricultural, environmental, and fishery interests, including state and federal agencies, the Yuba County Water Agency has developed an innovative set of agreements with respect to instream flow requirements for the lower Yuba River. The proposed Yuba River Accord will resolve nearly fifteen years of controversy and litigation on this matter.
The challenges presented in Yuba County are similar to those presented in other California water districts. The agreement reached by the seventeen parties, all representing unique interests, exemplifies the communication, compromise, and leadership necessary to resolve longstanding water disputes in California. Representatives of various parties to the Yuba River Accord spoke about their experiences with the agreement process.
Private Sector Participation in Water Services: Through the Lens of Stockton
Gary H. Wolff, Wenonah Hauter,
Bill Loyko, Geoffrey Segal,
and Anders Stenstedt
The mere suggestion of private sector involvement in municipal water services generates acrimonious debate from virtually all sectors of society. So why did Stockton, California attempt to "privatize" its water services in the face of such opposition? Was the government "captured" by "water barons"? Or was the government making a smart business decision?
This Panel discussed the controversial issue of private sector participation in the water services sector, often deemed "privatization" by those who oppose it, through the example of the aborted agreement between OMI/Thames and the City of the Stockton. In so doing, the Panel addressed the larger policy issue of whether private sector participation in the management and operation of water services is an effective arrangement that decreases costs to the government and consumers, or a dangerous free market foray exploiting the world's most precious resource.
Desalination in California: Should Ocean Waters be Utilized to Produce Freshwater?
Jared Huffman, Joe Geever,
Tom Luster, and Peter MacLaggan
According to the California Coastal Commission, more than twenty proposed desalination plants along the coast are in various stages of planning and permitting. Several desalination plants, including an experimental plant in Marin and a plant in Carlsbad, are coming online in the very near future. In addition, desalination is receiving substantial subsidies from the Department of Water Resources to encourage the development of new water supplies through desalination. This Panel discussed these issues, potential regulatory and legislative proposals, and the costs and benefits of desalination in California.
Environmental Justice: Access to Clean Drinking Water
Laurel Firestone, Alice Kaswan,
and Sandra Meraz
Many low-income communities and communities of color are unable to advocate for clean drinking water or oppose rate hikes for drinkable water. Failing infrastructure, industrial pollution, and increasing water scarcity in California disproportionately affect vulnerable, marginalized communities. This Panel focused on community organization and novel legal approaches (such as Title VI Civil Rights complaints) that could be used to advocate for clean drinking water.