"In a spirit of openness, we explore how we are classified, stratified, ignored and singled out under the law because of our race, sex, gender, economic class, ability, sexual identity and the multitude of labels applied to us. . . . [W]e welcome all viewpoints and ideas that are expressed with respect and collegiality. . . . [W]e are a journal that promotes living discussion."

This blog is the brainchild of the Journal of Gender, Race & Justice at the University of Iowa College of Law. It is intended as a forum for people to discuss their personal views concerning topical issues. Posts reflect the opinions of the authors and not necessarily the Board or the Student Writers as a whole. We encourage well-rounded debates and discussions.

 

Supporting Nursing Mothers: Gender Equity Requires Adequate Lactation Rooms

Amber Fricke, Student Writer, The Journal of Gender, Race & Justice

Women and men should be treated equally. However, when treating men and women equally results in inequity, they should be treated differently. A prime example is pregnancy; women get pregnant and men don’t. In order for women to have equal opportunities, their reproductive capacities need to be taken into consideration. If the law and society as a whole do not take these issues into consideration, the circumstances will force women to be relegated to the private sphere if they choose to exercise their reproductive right to have children. Many women give birth and then return to the public sphere, whether it is work or school. Women may desire to continue to breastfeed due to the great benefits; breastfeeding provides health benefits for both mother and baby, as well reduces costs, and promotes an emotional bond between mother and baby.[i] If the public sphere does not accommodate a woman’s decision to breastfeed, by allowing her to express her milk throughout her work/school day, she will be forced to either leave the workforce or school, or more likely stop breastfeeding, depriving her infant of its many benefits.[ii]

 Legislatures around the country have recognized this problem, and have responded by implementing requirements for employers to provide accommodations for nursing mothers.[iii] Additionally, the recent Health Care Reform Act addressed the needs of nursing mothers in the workplace. Section 4207 of the Patient Protection and Affordable Care Act requires employers (although those with less than 50 employees are exempt if compliance would cause an undue hardship) to provide a private space, other than a toilet stall, to a breastfeeding employee who needs to express milk throughout the workday, until the child is one year old.[iv] The Iowa legislature is currently considering a bill that builds upon the federal law by extending coverage to include all employers, regardless of size, to provide, until the employee’s child is two years old. [v] 

However, passage of the recent law is only one step towards gender equity. The federal law does not apply to students, and the lactation room does not have to be permanent or well-equipped for nursing mothers.[vi] Women should be able to seek both an education and have children. Some campuses are better than others at supporting students who are also nursing mothers. The current level of support as demonstrated by the access to lactation rooms across the University of Iowa campus varies. The University provides a list of 32 rooms across campus, three of which are currently closed. The rooms vary in the degree that to which they are equipped for breast-pumping; the amenities include electric pumps, chairs, couches, tables, sinks (to wash the equipment), locked doors (to ensure privacy), and refrigerators (to store the expressed milk).[vii]

The College of Law is not listed on the University list of designated spots. The current University of Iowa College of Law Student Handbook includes a simple statement regarding lactation rooms, “Please contact Carin Crain, Dean of Students, for support within the College of Law. For general information about University of Iowa facilities, please see http://www.uiowa.edu/hr/famserv/lactation.html.”[viii] The law school does not include a permanent lactation room; rather it allows women to use an unoccupied office, so long as there are no visiting speakers.  The room is not equipped with an electric pump, a sink or a refrigerator.   Lack of a refrigerator also presents problems due to the student lounge often being closed for classes thus making it either difficult to take expressed milk to the refrigerator or retrieve expressed milk from the community refrigerator when a class is occupying the room. However, the most difficult part is not having a permanent room.

The State of Iowa and the University of Iowa College of Law pride themselves on having a history of treating women equally. The University should continue that tradition, and strengthen their support for students who are nursing mothers. The law school should establish a private and permanent lactation room equipped with a chair, a table, a small refrigerator, and if possible a sink to be used by nursing mothers, whether they are students, staff, or faculty without a private office.  


[i] http://www.womenshealth.gov/breastfeeding/index.cfm?page=227

[ii] http://www.cdc.gov/breastfeeding/pdf/breastfeeding_interventions.pdf

[iii] http://www.ncsl.org/IssuesResearch/Health/BreastfeedingLaws/tabid/14389/Default.aspx

[iv] http://www.ncsl.org/documents/health/ppaca-consolidated.pdf

[v]  http://blogs.desmoinesregister.com/dmr/index.php/2010/03/22/iowa-proposal-for

breastfeeding-moms-is-stronger-than-federal-one/

[vi]http://www.usbreastfeeding.org/Workplace/WorkplaceSupport/WorkplaceSupportinHealthCareReform/tabid/175/Default.aspx; http://www.dol.gov/whd/regs/compliance/whdfs73.htm

[vii] http://www.uiowa.edu/hr/famserv/lactation_room_locations.pdf

[viii] http://www.law.uiowa.edu/documents/2010-11_handbook_web.pdf

Urban Deserts: Race, Justice & Groceries

Sarah Pierce, Senior Symposium Editor for the 2010-11 JGRJ Board

My notions of social justice issues have always largely focused in on the morbidly tragic. From internships on child soldiers to the death penalty, if something doesn’t involve death and violence, I have failed to focus in on it. This summer, however, befriending a passionate urban planner has given me a bit of perspective. As it turns out, something as seemingly mundane as the placement grocery store can be packed full of injustice, discrimination, and life or death consequences.

Some urban areas completely lack mainstream grocery stores. Known as food deserts, these areas create endless concerns for their residents. Specifically, the term means a neighborhood or cluster of neighborhoods that have limited or no access to fresh meat and produce, but are potentially not without pre-packaged and fried goods available at convenience, liquor, and fast  food stores.

The inevitable results of living in these areas are grim. Rather than trekking grocery bags onto a series of bus routes, it is far easier for food desert residents, many of whom are single mothers, to utilize the local convenience store. This means that dinner is much more likely to include potato chips or candy bars than spinach or apples, especially since, while a banana may cost 29 cents at Dominick’s, if even at a convenience store, it goes for around 70 cents.

These deserts are around the country in urban areas, including Los Angeles, Detroit, Memphis, Newark, N.J. Chicago has an estimated 600,000 food desert residents, while nearly half of Detroit is in a food desert. They are also disproportionately made up of minority communities. For example, in Chicago, nearly 500,000 of those located in food deserts are African Americans.

Unsurprisingly, health in food deserts is appallingly bad. Within these areas, 10 out of every 1,000 people die from cancer, as opposed to the fewer than 7 per 1,000 in neighborhoods with access to fresh foods. Additionally, 11 per 1,000 food desert residents die from heart disease, compared to fewer than 6 per 1,000 in other areas. Experts predict that likely the hardest hit are children, many of whom suffer from undiagnosed diabetes. One third of Chicago’s food desert residents are children.

Because this problem has only been recognized as recently as 2006, solutions have been slow coming but present. For example, in Chicago, the internet-based grocer Peapod has paired with  Neighbor Capital to help residents purchase affordable produce at schools. In Chicago’s West Englewood neighborhood the nonprofit Growing Home hosts weekly farm-stand hours at its urban garden. The nonprofit God’s Gang provides training in urban agriculture.

While perhaps not involving illegal arms trade or threats of deportation, food deserts are a human rights concern, deserving immediate attention. U.S. residents have a constitutional right to live anywhere they want, and there is an international human right to health. That right is being denied to urban residents throughout the country.

Children Sentenced as Adults: Rehabilitation or Retribution?

-Aundreia Cameron, JGRJ Student Writer 2009-10

Wednesday, March 03, 2010

About a year ago this month, an eleven-year-old boy, Jordan Brown, was charged with murdering his dad’s fiancé, Kenzie Houk, who was with child. He currently resides in the Edmund L. Thomas Adolescent Detention Center where he has spent his birthday and Christmas. Originally, authorities placed Brown in the Lawrence County Jail for adults, but they removed him after his attorneys successfully argued that the jail could not accommodate an eleven-year-old. Brown has pleaded not guilty and awaits his trial.

My prayers go out to Houk and her family, and I sympathize greatly with their lost. I also sympathize with Brown and his family. He is very young and not strongly aware of the situation at hand. My main concern is not with labeling Brown as guilty or not guilty, but instead focusing on the ramifications of putting a child in prison for his entire life. Even if the jury found Brown guilty of murder, sentencing him to life in prison without the possibility of parole defeats the purpose of rehabilitating criminals. Since he is young, there is great potential for a rehabilitation program to help him change the state of mind that may have brought him to murder Houk.

I would venture to ask what lesson Houk would learn by serving a life sentence beginning at the age of twelve. I can accept that courts are in place to facilitate the punishment of young people who commit the most heinous of crimes. However, the system should not permit prosecutors to charge children as adults because children’s brains are not fully developed. Instead of sentencing and housing Brown with adults, the penal system would best serve Brown by putting him in jail with children his own age and teaching him why his actions were wrong through a rehabilitation program—if he did indeed murder Houk. A child could learn how to reroute his or her anger through rehabilitation, but not through overly severe punishments, which the child may not even fully understand.

The courts should not use the prison system to house children for a lifetime without a strong focus on rehabilitation. The fact that Brown, if convicted, will not even have the option of parole sends the message that he does not have the capacity to improve his life and positively contribute to society. If paroled, Brown could possibly help other young people who may have struggled with similar issues and prevent those children from going down the same path as he did. As horrible as it is that Houk and her child are no longer here, Brown could be of more help to society by working diligently in rehabilitation programs than spending the next sixty years behind bars. Children need to understand that if they commit an offense, they can redeem themselves by being a blessing to someone else. The way to help Brown become a better person is to give him a reason to improve his life. That reason is a less severe sentence with the possibility of parole.

Dominican Mother Makes Her Own Contribution to the Children of Haiti

-Connie Valenzuela Lickstein, JGRJ Contributing Member 2009-10

Friday, February 12, 2010

Many people have come together to support the people of Haiti during the incredibly difficult aftermath of the January 12th earthquake. Former presidents Bill Clinton and George W. Bush have put their differences aside to advise the Haitian government. Famous singers, actors, and celebrities have combined their talent and popularity to raise funds for the ailing country. But, in the Dominican Republic, one woman has given what is possibly the most valuable of gifts to Haitian children.

Sonia Marmolejos has been breastfeeding Haitian babies whose mothers have either been seriously injured or have passed away as a result of the earthquake. She has fed at least 20 babies in two hospitals in the Dominican Republic—the Dario Contreras hospital in Santo Domingo and the local hospital in Jimani, a town that is located five miles from the Haitian/Dominican border. When Marmolejos heard that there were babies who needed breast milk both in Santo Domingo and by the border, she immediately visited both hospitals. She has since been feeding babies, who are often severely injured themselves. A recent mother herself, Marmolejos has said that she just wants to help in any way she can.

Sonia Marmolejos’ story carries great meaning to the members and readers of the Journal because it shows how a woman can make her own unique contribution to the global effort to help those in need. She symbolizes the fearlessness that we value and the need to immediately address injustice that we all feel. Hers has truly been an act of love towards the Haitian community. Unfortunately, the actions of others have raised concerns about the possibility of child trafficking from Haiti to the Dominican Republic. We can only hope that, for every ill-intentioned person that may try to harm the children of Haiti, there will also be a brave, generous mother who is willing to give life and comfort to those who need it most.

Child Trafficking Concerns for Haiti Orphans

-Sarah Pierce, JGRJ Student Writer 2009-10

Friday, January 29, 2010

When the earthquake hit Haiti and images of lost and seemingly abandoned children were projected onto our TV screens, the generosity of certain celebrity icons was not far from many minds. Already a hot-spot for international adoptions, the earthquake inspired a flurry of well-intentioned requests for Haiti orphans, with desperate appeals for expedited adoption procedures. However, the resulting mass shipments of children left many without proper documentation and exposed to child traffickers.

Before January 12, 2010, Haiti was a hotspot for international adoptions. In recent years, adoptions from Haiti have drastically increased, doubling between 2002 and 2006 to 1,400 children a year. Coming from the poorest country in the Western Hemisphere, few of the adopted children are actually orphans, most having been left at adoption agencies by a parent who was unable to provide for them.

The earthquake put a troubling halt to many of these adoptions mid-process. For example, one couple in Colorado, the Ellsons, were in the process of adopting 12-year-old Samantha. After the quake, the family did not hear news of her well-being until about 24 hours later. Even then, while they had expected Samantha to be here by Christmas 2010, experts are saying the quake will delay the adoption process by four to six months.

Not long after the quake, orphanages and adoptive parents pleaded with foreign governments to accept orphans with emergencies visas and passports in order to “push through” some of these adoptions. By January 19, Governor Edward Rendell of Pennsylvania flew down to Haiti to bring 54 orphans back on a military cargo plane. The grand gesture was memorialized with by emotional videos, set to music, featuring the youngest children of the group.

Last Tuesday, seven senators attempted to jump onto this well-intentioned media stunt, petitioning the federal government to ease the requirements for Americans to adopt Haiti orphans. The politicians are hoping to push a bill through to eliminate much of the “red tape” involved in adoptions. Other nations have similarly fast-tracked their adoption processes to “extract” children from Haiti more quickly.

In the fall of 2008, our journal published an article that highlights the vital importance of not “fast-tracking” adoptions: Patricia J. Meier, Small Commodities: How Child Traffickers Exploit Children and Families in Intercountry Adoption and What the United States Must Do to Stop Them, 12 J. Gender, Race & Just. 185 (2008). Every year, a significant number of children are sold by traffickers who profit by supplying the children to inter-country adoption programs. The poverty of sending-countries combined with mass adoption placements with Western parents creates incentive and opportunities for traffickers to supply children to inter-country adoptions. Even prior to the earthquake, child trafficking for the purpose of inter-country adoptions was a concern in Haiti.

The earthquake brought chaos to this poor nation, making it ripe for an increase in child trafficking. UNICEF reported that at least 15 children have disappeared from hospitals. This past Wednesday, a representative from the Lutheran Immigration and Refugee Service (LIRS) gave a statement in a congressional briefing on protecting the needs of Haitian children. LIRS has received reports of children being brought over privately on chartered planes. They have also received growing reports of children arriving without adoptive families and questionable or no documentation.

For example, a 12-year-old boy arrived using someone else’s passport. He came over on a U.S. military plane with no documentation or contact information of family. There is no way for social services to know if he has family looking for him or who his intended caregiver is. In another instance, a 3-year-old child arrived on a private plane, whose adoptive family had not been verified and the family decided to not continue the process. The child is enduring separation from his traditional care givers as he remains in a shelter, waiting to be moved to foster care.

These reports prove that even without questionable adoption practices, the children of Haiti are currently extremely vulnerable to the threat of trafficking. To combat this threat, certain aid groups have ordered a halt to new adoptions. Other agencies have begun tours of IDP camps, hospitals, and orphanages, and set up secret locations for any unaccompanied children, taking in 275 thus far.

Moving forward, orphanages and foreign governments should stay true to the promise not to put children orphaned from the earthquake up for adoption. Additionally, in their congressional testimony, LIRS made several helpful suggestions. First, as always, when child welfare is concerned, the best interests of each child should be kept in mind at all times. Second, agencies and involved governments need to work on durable solutions for each individual child. These solutions must prioritize the interests of the child and maintaining their familial, community, and cultural connections. Finally, each individual child should be carefully assessed before any consideration of evacuation or relocation occurs. A suitable family member must either accompany the child or be notified of the move. Additionally, there needs to be strong coordination and communication within Haiti to carefully record these moves.

As tempting as it may be to “rescue” these children by rushing them out of their home country, these hasty moves fail to take the best interests of each child into consideration. Child trafficking is a real threat to these children. This threat needs to be taken into consideration throughout each step of recovery in Haiti.

Juvenile Sentences for Life in Prison without Parole

-Maxine Nash, JGRJ Student Writer 2009-10

Tuesday, November 24, 2009

Recently, the Supreme Court heard oral arguments on two cases before this term considering the issue of sentencing juveniles to life imprisonment without the possibility of parole. The two cases are both from Florida, and have to do with juveniles who were sentenced to life in prison without parole for non-homicidal charges. The question before the court is whether or not incarcerating juveniles for a life term without the possibility of parole constitutes cruel and unusual punishment under the Eighth Amendment.

I chose the topic for a Journal Note, because quite frankly I was astounded the first time I learned that it was even possible in the United States to incarcerate a juvenile for the rest of his or her natural life, with no hope of release. As I’ve researched the subject, I’ve discovered that the sentence is available in 44 states and is mandatory in many states (under mandatory sentencing guidelines). There are currently 2,574 juveniles in the United States serving such sentences as reported by Human Rights Watch.

Most of the scholarly literature on the subject advocates a ban on the sentence. One main reason given by advocates for banning the practice is the fact that juveniles have less culpability given their physical, mental and emotional immaturity. The advocates point to a wealth of medical and psychosocial data on the subject, but it hardly seems necessary given what we intuitively and experientially know to be true about children. Another reason that surfaces quickly is that it has become a standard of international law not to use this type of sentence for children. The United States is alone in the world in utilizing juvenile life without parole sentencing.

As I researched, I tried to keep a balanced view and to logically reason out why the sentence is or is not unconstitutional. However, no matter how much I reasoned, and even though my reasoning indicated that, because of the vagueness of the language in the Eighth Amendment, and because of the Court’s precedent, this constitutional challenge may fail, sentencing juveniles to life in prison without parole still feels fundamentally wrong. In reading the transcripts of the oral arguments for the cases, it’s apparent that there is the same uneasiness among some of the justices.

During oral arguments, the Court indicated it might prefer these cases be individually adjudicated on a proportionality basis, making a categorical ban unnecessary. Some justices feared the slippery slope of future challenges to the Eighth Amendment’s cruel and unusual punishment clause. While the slippery slope may be real, it is the duty of the Court to help bring the Constitution to life by struggling with the meaning when the words aren’t clear.

Beaches, Hollywood, Disneyland, and A Right to Counsel in Civil Cases: California Has Got It All!

-Kapri Saunders, JGRJ Student Writer 2009-10

Friday, November 13, 2009

It is often said that what happens in California influences the rest of the nation. While other states may not want California’s massive debt or Schwarzenegger for their governor (hey, I respect him), I think they may be wise to follow California’s latest move. In California, poor litigants in civil cases now have a right to counsel. In response to this new law, the State created a pilot program to provide counsel to poor litigants in “key civil cases” that involve basic human needs, including evictions, loss of child custody, domestic abuse, and neglect of the elderly or disabled. The program garnered bipartisan support (I wish that could happen for the healthcare bill) and will be funded by a $10 increase in court fees for the prevailing party in civil cases.

Currently, the U.S. Constitution, as interpreted in Gideon v. Wainwright, 372 U.S. 335 (1963), guarantees any person facing criminal charges a right to legal counsel. In reading Gideon and Powell v. Alabama, 287 U.S. 45 (1932) (Scottsboro boys case which recognized the right in capital cases only), the Court seems concerned with maintaining the “fundamental human rights of life and liberty,” Gideon, 372 U.S. at 343, and ensuring due process. It’s not a stretch to conclude that these principles are also applicable to civil cases, especially when due process applies to all legal processes and the courts have already recognized many civil matters as liberty or property interests.

The committee notes for the law recognize that even if the laws are fair and the judiciary is unbiased, equal justice under the law requires that people have the ability to invoke the laws for their protection; without that, there is no real access to the legal system. Agreed. I am almost halfway through law school, and it is only because of interning with the Hon. Joseph Kreamer (great experience) and civil procedure class that I have a working knowledge of civil litigation. I did not understand how to use the legal system to my benefit before law school, and apparently, I won’t truly understand it until five to seven years into practice. Therefore, those without a legal education definitely need professional help to have meaningful access to the legal system.

There are other benefits. Pro se litigants are taxing on the court’s time. Judicial staff spends a significant amount of time interacting with pro se litigants who just need someone to talk to. Judges have to spend more time explaining the legal process and excusing mistakes when there’s a pro se party involved in a case. With licensed attorneys involved instead, hearings and trials will proceed more quickly, and judges and judicial staff will have more time for other matters. Also, with the economy the way it is, it is comforting to know that there are opportunities being created which may increase the need for lawyers.

There are many other reasons why this is a good idea. I am certain that legal minds more developed than mine have written about them, so I won’t attempt any additional analysis. It is the just thing to do. While visiting the trial courts in Cairo, Egypt this summer, I learned that Egypt recognizes a right to counsel in all civil and criminal cases. It gives Egyptians access to legal remedies that would not otherwise be available. If Egypt can do it, so can we.

There are legitimate concerns about why this is a bad move. Some critics are concerned about funding. Others argue that the money could be spent on addressing issues such as wrongful convictions, “law enforcement, quality day care, or lead paint eradication in low-income communities,” and that it may congest court dockets. Valid, but, since this movement began in 1966, there has been plenty of time to balance these interests. The need of a poor litigant to have representation in certain civil litigation is more compelling.

Funding is a legitimate issue, but California’s proposed plan is sound. Also, in Arizona, the Arizona Foundation for Legal Services and Education is working with banks to increase the interest rate on IOLTA accounts in order to create more money for legal aid. Other similarly innovative solutions that won’t increase taxes must exist.

While I am celebrating this amazing development in justice, I am aware that it is a pilot program. Even the best pilots may never take a long a flight (see tv shows Noah’s Arc, Firefly, & Conviction). However, California has from July 2011 to January 2016 to prove that the program is actually as beneficial as proponents hope that it will be. Hopefully it’s successful. Hopefully other states follow suit.

For more information, check out the text of the bill and committee findings (my heart smiled while reading it) and an L.A. Times article about the law.

HandsOn: Cedar Rapids

- Atañna Essama, JGRJ Student Writer, 2008-09

Thursday, October 16, 2008

The University of Iowa College of Law’s Journal of Gender, Race & Justice, accompanied by Dean Jones and Dean Crain, members of TLCP, and various other students took a trip out to Cedar Rapids, IA. The purpose of the trip was to provide the labor necessary to clean up and restore a children’s playground.

The day started with everyone convening at the Boyd Law Building at 8:15AM for check-in, bagels and juice. Then at about 9:30, in what looked like a scene from most standard school field trips, we all loaded onto the yellow school bus for the half hour ride to Cedar Rapids for our day of service. Though no group songs were sung, nor bus driver unnerved, the mood on the bus ride up was jovial and light-hearted nonetheless. As many of volunteers had not met one another before, the bus ride served as a great ice breaking forum.

As many of the volunteers spent this past summer outside the state of Iowa, their only firsthand experience with the flooding came from seeing the occasional gutted building in downtown Iowa City or in Coralville at the beginning of the academic year. However, when we pulled into Cedar Rapids, the first thing to register was just how empty it was. Then, as we drove by entire blocks of houses that had yet to even be gutted. As we drove to our work site, what we observed was home after home devastated by the flooding. It was at that time that the gravity of what had transpired this past summer hit most of the volunteers, or at least those for whom this was their first trip to Cedar Rapids since the floods.

The task at the work site consisted of shoveling out the base of the playgrounds which had been contaminated by the septic flood water that had soaked into it for the duration of the floods. We shoveled it out until we arrived at the gravel base of the playground. The dirt was shoveled onto tarps and dragged out to designated areas where it would be hauled off by waste management services the next day. Some time after the initial digging had begun, a large truck pulled in and unloaded what seemed to be a mountain of woodchips (read: safety surface), that we were to shovel into the now baseless playgrounds. Once all the contaminated dirt and debris had been shoveled out of the playgrounds, the operation reversed from shoveling out and hauling away, to hauling and shoveling in the new safety surface. The team worked diligently clear through the day only stopping for a much needed, and highly anticipated lunch break in the middle of the day.

When we arrived and saw the state of the playgrounds, we realized what we were in for. It is safe to say most of our high spirits from the bus ride over were initially dampened by the sheer daunting nature of the task we were going to have to complete –or at least attempt to complete before 4:30PM. However, once we got started and put our proverbial backs into it, we began to realize that our goal was entirely attainable if we worked the way we knew we could. Once we started seeing some early progress, encouragement begat confidence, which in turn begat an efficiency which would have made most construction managers proud. Aided by a more-than-enthusiastic site manager, our group was not only able to finish the work at our site before our 4:30PM deadline, we were able to finish before any of the other groups who, unbeknownst to us, were assigned to other sites around Cedar Rapids.

The trip to Cedar Rapids was truly an illustration of the seemingly hackneyed idea of what a group of people with the requisite determination and benevolence can accomplish. What made the trip worth more to me was that it was something we were doing for children. Children are always truly the most innocent victims in natural disasters and it felt good to know that what we had accomplished would go a long way in eventually getting the sound of children’s laughter back at that playground.

Child Pornographers Sigh in Relief: U.S. v. Booker is Decided Just in the Nick of Time

~ Laura Klever, 2006-2007 Student Writer

Friday, April 06, 2007

In 2005, the U.S. Supreme Court decided in United States v. Booker that the U.S. Sentencing Guidelines, which had previously dictated sentence length, were no longer mandatory, but merely advisory. That decision effectively restored to judges discretion to make sentencing decisions. The Booker decision could not have come at a better time, as the judiciary is in dire need of sentencing discretion to combat legislative zeal to increase child pornography sentences. This zeal is likely a result of social pressure, both from constituents and the media.

Social pressure on legislators by their constituents is the foundation for many of the laws that are passed in the United States. Indeed, legislators’ political livelihoods depend on bolstering their image and pleasing their constituents so they will be re-elected. In this vein, few issues draw such strong emotions as the sexual abuse of our nation’s children. In 2004, Dateline began airing To Catch a Predator, a series of undercover investigations into child sex predators on the internet. While Americans were likely surprised at the number of those willing to show up on a child’s doorstep for sex (in one location, 88 men were caught in a period of only nine days), they must have been aghast at the types of people who responded: rabbi, firefighter, emergency room doctor, military personnel, special education teacher, and federal agent, among others.

The Dateline investigations’ dramatic portrayals of “an epidemic of sexual predators in our country” sparked an outpouring of concern for the safety of America’s children, motivating legislators to push for the Adam Walsh Child Protection and Safety Act of 2006. This new law is to protect America’s children from sexual exploitation by “protect[ing] our children from violent crime and sexual exploitation, toughen[ing] criminal penalties for crimes against children, prevent[ing] child abuse and child pornography, and combat[ing] internet predators.” While protecting our children from harm is a noble goal, legislators may get so caught up in increasing punishments for these highly emotional and sensationalized crimes that they lose sight of the legal, though unpopular, need to protect the rights of offenders. In contrast, federal judges are not subject to the whims of society’s current “witch hunt.”

First, federal judges have lifelong tenure, which “shields judges from the political pressure that comes with periodic accountability to an electorate.” This means that judges are free to take unpopular stances and vindicate the rights of those criminals society most abhors without having to worry about keeping their jobs. It was Thomas Jefferson who declared that “nothing will contribute so much as [lifelong tenure] to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.”

Second, federal judges are appointed rather than elected. So while legislators must consider how their actions on Capitol Hill will affect any attempts at re-election, judges are able to distance themselves from the pressure and hype to reflect on the rights and interests of criminals.

Lastly, the judiciary has long been criticized as isolated and “out of touch” with the real world. However, federal sentencing is an area where the legislature, not the judiciary, is “out of touch.” Representatives have recently recognized that “[j]udges engage in numerous cases regarding sexual abduction and have more experience and expertise in those cases than we do. Therefore, we should not second-guess their decisions on whether to impose a sentence that is more lenient. They see the defendant and victim, they hear the arguments and testimony, and hence, we should show deference to their rulings.”

In all, judicial discretion is essential to balance legislative zeal by holding firm in the face of social pressure and ensuring fairness in sentencing for criminal defendants, especially those charged with such unpopular and sensationalized crimes as child pornography.

Children Sentenced as Adults: Rehabilitation or Retribution?

About a year ago this month, an eleven-year-old boy, Jordan Brown, was charged with murdering his dad’s fiancé, Kenzie Houk, who was with child. He currently resides in the Edmund L. Thomas Adolescent Detention Center where he has spent his birthday and Christmas. Originally, authorities placed Brown in the Lawrence County Jail for adults, but they removed him after his attorneys successfully argued that the jail could not accommodate an eleven-year-old. Brown has pleaded not guilty and awaits his trial.


My prayers go out to Houk and her family, and I sympathize greatly with their lost. I also sympathize with Brown and his family. He is very young and not strongly aware of the situation at hand. My main concern is not with labeling Brown as guilty or not guilty, but instead focusing on the ramifications of putting a child in prison for his entire life. Even if the jury found Brown guilty of murder, sentencing him to life in prison without the possibility of parole defeats the purpose of rehabilitating criminals. Since he is young, there is great potential for a rehabilitation program to help him change the state of mind that may have brought him to murder Houk.

I would venture to ask what lesson Houk would learn by serving a life sentence beginning at the age of twelve. I can accept that courts are in place to facilitate the punishment of young people who commit the most heinous of crimes. However, the system should not permit prosecutors to charge children as adults because children’s brains are not fully developed. Instead of sentencing and housing Brown with adults, the penal system would best serve Brown by putting him in jail with children his own age and teaching him why his actions were wrong through a rehabilitation program—if he did indeed murder Houk. A child could learn how to reroute his or her anger through rehabilitation, but not through overly severe punishments, which the child may not even fully understand.

The courts should not use the prison system to house children for a lifetime without a strong focus on rehabilitation. The fact that Brown, if convicted, will not even have the option of parole sends the message that he does not have the capacity to improve his life and positively contribute to society. If paroled, Brown could possibly help other young people who may have struggled with similar issues and prevent those children from going down the same path as he did. As horrible as it is that Houk and her child are no longer here, Brown could be of more help to society by working diligently in rehabilitation programs than spending the next sixty years behind bars. Children need to understand that if they commit an offense, they can redeem themselves by being a blessing to someone else. The way to help Brown become a better person is to give him a reason to improve his life. That reason is a less severe sentence with the possibility of parole.

-Aundreia Cameron, JGRJ Student Writer 2009-10