The Poverty Defense

Michele Estrin Gilman *

Is stealing a loaf of bread to feed a starving family of eight a crime? Or, is poverty a defense? In Victor Hugo’s classic, Les Misérables, the protagonist, Jean Valjean, commits this crime and is sentenced to five years of hard labor. Hugo clearly intends the reader to sympathize with Valjean. The punishment not only seems grossly disproportionate to the crime, but Valjean also seemingly had no other choice. While Valjean’s crime may inspire sympathy among readers (and musical theater aficionados alike), it is widely assumed and accepted in our American criminal justice system that poverty is not a defense to crime. In 1971, Judge David Bazelon of the United States Court of Appeals for the District of Columbia famously challenged this assumption, arguing, in dissent to a decision upholding a murder conviction, that juries should be allowed to consider a defendant’s “rotten social back-ground”—that is, how growing up under circumstances of severe environmental deprivation can subsequently influence a criminal defendant’s mental state and actions.

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Roadblocks to Remedies: Recently Developed Barriers to Relief for Aliens Injured by U.S. Officials, Contrary to the Founders’ Intent

Gwynne L. Skinner *

The founders of the United States, especially those who wrote the Constitution and the subsequent First Judiciary Act, wanted to ensure that aliens who were victims of torts in violation of the law of nations (now commonly referred to as customary international law) had the ability to seek redress in federal court for the injuries they suffered. Providing remedies for violations of the law of nations to aliens was important in order to demonstrate that the young country took the law of nations seriously and to prevent foreign conflicts, some of which might lead to war. At the time of the nation’s founding, just as it does now, international law required that nations provide remedies to foreign citizens who were wrongfully injured while under the protection of the host nation, an obligation the founders took seriously.

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Leasing Sovereignty: On State Infrastructure Contracts

Matthew Titolo *

Infrastructure privatization is in the news. In the past ten years, Pennsylvania, California, Colorado, Indiana, and many other states and municipalities have privatized—or attempted to privatize—toll roads, parking meters and other public infrastructure. State and federal policies have encouraged these public-private partnerships and infrastructure privatizations. Private development of public infrastructure was common in states and municipalities during the nineteenth century. This was typically done through granting corporate charters and franchises. Disenchantment with this model led to a public finance counterrevolution in the twentieth century. Privatization re-emerged in the 1980s and 1990s. Headlines such as “Why Does Abu Dhabi Own All of Chicago’s Parking Meters?” and “Cities for Sale” attest to the continuing controversy surrounding these arrangements.

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A Cost-Benefit Analysis of Religious Persecution: Casting Up a Dread Balance Sheet

R. George Wright *

The worst forms of religious persecution are unfathomably horrific. American law has extinguished the most severe forms of classical and modern public religious persecution. Whether other forms of public religious persecution have been reduced, or are instead on the increase, is controversial and undoubtedly important. This particular question, as briefly illustrated below, is unfortunately not subject to any reasoned, consensual resolution. It should come as no surprise when commentators raise largely unresolvable claims as to the existence of public persecution or of the burdening of religious rights of conscience, doctrine, and practice.

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Filing Status and Today’s Families

Erik Baines *

A long-standing issue of tax policy is whether to tax people as separate individuals or as social beings. That is, how should a taxable unit be defined? Today, married couples may file either a joint return or separate returns as married individuals. However, filing separately often increases a couple’s combined tax liability. Single people must file exclusively as individuals, but their rates are generally, though not always, higher than those of married couples with the same amount of income. This tax difference between a married person and an individual creates what are known as marriage penalties and bonuses. These penalties and bonuses often create a disincentive for both partners of a married couple to be employed. Historically, a single-earner couple was the norm; however, society has changed since Congress adopted the joint return in 1948. Shifting attitudes towards marriage and cohabitation continue to move the family away from the single earner married couple norm.

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