BOSTON COLLEGE
Boston College Law Review

Student
Publications

Volume 45 2004 Number 2

[Pages 255-306]
NAVIGATING THE HIDDEN OBSTACLES TO EX-OFFENDER REENTRY
Anthony C. Thompson*

Abstract:  As federal and state correctional institutions steadily release record numbers of ex-offenders each year, the communities into which prisoners are released are unprepared to sustain the economic and social burden of the massive reentry movement. As a result, reentering ex-offenders lack the support needed to reintegrate themselves into society and to lead productive, law-abiding lives. This Article first explores political trends that account for the increase in incarceration rates over the last two decades and the resulting social, legal, and economic challenges of reentry both ex-offenders and their communities face. Only recently has the government begun to respond to these problems by establishing reentry courts that specialize in ex-offender transition, support, and supervision. After questioning the efficiency and institutional competence of reentry courts, the Article suggests two alternative ways in which the legal community might help to manage ex-offender reentry. First, public defender offices could evolve into a less specialized and more integrated role through which they could represent ex-offenders in a variety of matters related to reentry. Second, law schools could provide students with clinical opportunities through which to explore creative, non-traditional solutions to representation of ex-offenders. Ultimately, collaboration between lawyers and communities will be necessary to provide ex-offenders with the resources they need for successful reintegration.

[Pages 307-390]
FURTHERING AMERICAN FREEDOM: CIVIL RIGHTS & THE THIRTEENTH AMENDMENT
Alexander Tsesis*

Abstract:  This Article discusses why the Thirteenth Amendment’s reach extends beyond the institution of slavery and has important implications for civil liberties. The Amendment—in providing a mechanism to protect fundamental rights articulated in the Declaration of Independence and Preamble to the Constitution—not only ended slavery, but also created a substantive assurance of freedom. This Article reviews Thirteenth Amendment jurisprudence and shows that, despite substantial narrowing after its adoption, the Amendment is a source of sweeping constitutional power for enacting federal civil rights legislation. The Article also distinguishes congressional power under the Thirteenth Amendment from that under the Fourteenth Amendment and the Commerce Clause, demonstrating that the Thirteenth Amendment is a viable, and at times preferable, alternative for civil rights reforms. Finally, the Article suggests that recent U.S. Supreme Court jurisprudence limiting congressional Commerce Clause and Fourteenth Amendment Section 5 powers has increased the importance of the Thirteenth Amendment as an alternative strategy for civil rights legislation and litigation.

[Pages 391-422]
RE-MUTUALIZING THE MUTUAL FUND INDUSTRY-THE ALPHA AND THE OMEGA
John C. Bogle*

Abstract:  The mutual fund industry began in 1924 with the formation of a truly mutual mutual fund: one organized, operated, and managed, not by a separate management company with its own commercial interests, but by its own trustees; compensated not on the basis of the trust’s principal, but, under traditional fiduciary standards, its income. This model of the mutual fund (the Alpha model) has been replaced by the mutual fund complex of 2004 (the Omega model). Although most mutual funds utilize this model, this Essay argues it is contrary to the intent and language of the Investment Company Act of 1940 as it benefits managers and directors as opposed to shareholders. This Essay compares the actual benefit to shareholders from funds utilizing the Omega model versus those using the Alpha model and proposes it is time to return to the Alpha model of 1924.

[Pages 423-466]
SANDIN V. CONNER AND INTRAPRISON CONFINEMENT: TEN YEARS OF CONFUSION AND HARM IN PRISONER LITIGATION
Michael Z. Goldman

Abstract:  The 1995 United States Supreme Court case of Sandin v. Conner dramatically altered how federal courts examine prisoners’ procedural due process claims. Prior to Sandin, a prison official’s act against a prisoner in violation of a specific regulation often gave rise to a liberty interest worthy of procedural due process protection. Sandin ended this analysis by stating that the proper inquiry should focus on whether such a violation caused an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” This Note argues that the “atypical and significant” standard, as applied by the majority of the lower courts, has led to harsh results, particularly for prisoners claiming that their assignments to higher levels of intraprison confinement followed little or no process. Because intraprison confinement is not representative of the prisoner experience and often harms inmates, courts must recognize such confinements to be the “atypical and significant” experiences that they truly are.

[Pages 467-498]
PROPOSED UNIFORM CHILD WITNESS TESTIMONY ACT: AN IMPERMISSIBLE ABRIDGEMENT OF CRIMINAL DEFENDANTS' RIGHTS
Katherine W. Grearson

Abstract:  The judicial system is struggling to accommodate the special needs of a rapidly growing number of child witnesses in its courtrooms. An increasingly popular approach to obtaining children’s testimony is the use of “shielding methods,” which allow child witnesses to testify outside the presence of the defendant. When courts use these methods, the judicial system’s obligation to protect children arguably conflicts with its duty to ensure criminal defendants’ right to confront their accusers as mandated by the Sixth Amendment Confrontation Clause. This Note examines the most recent development in child witness shielding, the Uniform Child Witness Testimony by Alternative Methods Act, drafted in 2002 by the National Conference of Commissioners on Uniform State Laws. This Note argues that states should not enact the proposed Act for several reasons. The Act violates the Federal Confrontation Clause as well as many state constitutions. Additionally, empirical evidence reveals harmful effects of shielded testimony not only on criminal defendants, but also on the child witnesses themselves and on the judicial system as a whole. This Note concludes that pretrial education and counseling would better serve child witnesses without sacrificing defendants’ constitutional rights.