The April issue of Boston College Law Review is now available. The issue features three articles by outside authors as well as four student notes. Summaries of the seven pieces can be found below. The full texts are also available on the BCLR website.
Psychosis, Heat of Passion, and Diminished Responsibility by E. Lea Johnston and Vincent T. Leahey
In this Article, Professors Lea Johnston and Vince Leahey call for the creation of a generic partial excuse for diminished rationality from mental disability. Currently, most jurisdictions recognize only one partial excuse: the common law heat-of-passion defense. Empirical research demonstrates that populations with delusions experience similar impairments to decision-making capacities as people confronted with sudden, objectively adequate provocation. Yet, current law affords significant mitigation only to the latter group, which only applies in murder cases. Johnston and Leahey propose extending the Model Penal Code's "extreme mental or emotional disturbance" defense to defendants with delusions or similar mental health disabilities. Compared to defendants with similar, temporary cognitive impairments, such as heat of passion, those with other mental conditions receive disparate treatment from the legal system with seemingly no justification. The Article first explores this potential new use of the EMED defense in depth and then surveys state statutes that have attempted a similar course by enacting Guilty But Mentally Ill (GBMI) standards. After weighing the strengths and weaknesses of GBMI statutes, the Article finally employs international law case studies to draw observations and lessons from other countries' treatment of partial responsibility verdicts.
Transnational Migration Deterrence by Anita Sinha
President Donald Trump's "Remain in Mexico" policy remains one of the most contentious of his presidency because of the horrific treatment reportedly endured by migrants sent back to Mexico from the United States. Professor Anita Sinha identifies this policy and similar efforts by other nations to demonstrate a broader phenomenon of global migration externalization. The Article elucidates that states where migrants seek to travel, or "destination states," intentionally fund systems of migration deterrence in neighboring countries to create buffer zones that bar unwanted migrants from entry. In so doing, these nations finance infrastructures and operations in other countries that systematically commit egregious human rights violations, with zero accountability. Sinha argues that international legal bodies should not permit destination states to perpetuate this inhumane conduct against migrants with impunity. In this Article, Sinha surveys the nature and breadth of these deterrence practices across the Americas, Europe, and Australia. The Article strives to create a lexicon of accountability for wealthy destination states that financially and legislatively bolster inhumane systems of migration deterrence around the world.
Social media is part of everyday life for many people, and frequently these platforms operate in a manner that maximizes the amount of time users engage with them. Unfortunately, the power of social media technology to disseminate information very quickly across wide networks can be harnessed to perpetuate crimes. Presenting the Rohingya genocide in Myanmar as a case study, Professor Hamilton seeks to draw attention both to how "platform-enabled crimes" can derive from the normal operation of social media applications and to the present lack of accountabillity for social media companies for their technology's role in facilitating such crimes. Professor Hamilton then provides several possibilities to help stop platform-enabled crimes from occuring, recognizing that there is likely no single solution but that implementing a combination of preventive measures could be a substantial step forward.
In 2018, in the aftermath of one of the deadliest school shootings in American history, Florida raised its minimum purchase age for all firearms to twenty-one. The National Rifle Association immediately filed suit, alleging that the law violated the Second Amendment. In 2021, in National Rifle Association v. Swearingen, the U.S. District Court for the Northern District of Florida upheld the law. This Note discusses the federal and state statutory regimes that govern young adults' access to firearms as well as the Supreme Court's Second Amendment jurisprudence. It argues that the Florida law is constitutional because it is analogous to the "presumptively lawful" measures that the Court identified in District of Columbia v. Heller and because it nonetheless survives intermediate scrutiny.
Safe Injection Facilities: Reconsidering American Drug Policy by Evelyn L.A. Jackson
The opioid epidemic has become one of the deadliest challenges facing the country as overdose deaths continue to rise each year, now in the 80,000s. Supervised injection facilities (SIFs), where medical professionals monitor drug injection and provide life-saving services when necessary, are one evidence-based practice of preventing overdose deaths. SIFs, however, are not legal in the United States. On a matter of first impression, the Third Circuit held that these programs violate a provision of the “Crack House Statute.” This Note discusses the Crack House Statute’s legal and sociopolitical context and the ever-increasing dire nature of the opioid epidemic. This Note then explains the judicial approaches to interpreting the statute and argues that the statutory language does in fact allow for SIFs. This Note concludes by advocating for the incorporation of more evidence-based approaches in future drug policy.
The Trafficking Victims Protection Act (TVPA) is an important tool for combating forced labor and other forms of exploitation. Yet, for plaintiffs seeking to hold state entities accountable under the TVPA, the Eleventh Amendment presents a critical barrier. One of the few exceptions to this broad protection is congressional abrogation of state sovereign immunity. In 1996, the Supreme Court held in Seminole Tribe of Florida v. Florida that to abrogate state sovereign immunity, Congress must do so pursuant to a valid source of power. The Court clarified that this includes Congress’s Fourteenth Amendment enforcement powers, but not its Article I powers. Although some courts interpreting the TVPA note its roots in the Commerce Clause (an Article I power), others reason that Congress enacted it pursuant to its Thirteenth Amendment enforcement power. This Note argues that Congress enacted the TVPA based on the Thirteenth Amendment, and therefore, suits against state defendants present a novel legal issue: can Congress abrogate state sovereign immunity pursuant to its power to enforce the Thirteenth Amendment? This Note answers in the affirmative, contending that the TVPA presents a unique opportunity to challenge restrictive abrogation precedent.
Cultural heritage, including antiquities and historical monuments, is generally prized and protected worldwide. An international legal structure exists to assist nations in protecting their cultural material and nations that are party to these treaties may be obligated to assist others in repatriating cultural heritage. In contrast to the international regime, however, the United States has minimal protections for domestic cultural material. After surveying the relevant cultural heritage protection statutes in the United States, this Note examines their limited efficacy and suggests amending them to improve clarity and enforcement.