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Boston College Third World Law Journal, Vol. 31, No. 2 (2011)

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Boston College Third World Law Journal, Vol. 31, No. 2 (2011) BOSTON COLLEGE THIRD WORLD LAW JOURNAL Volume XXXI Spring 2011 Number 2 ARTICLES Eighth Amendment Challenges After Baze v. Rees: Lethal Injection, Civil Rights Lawsuits, and the Death Penalty Harvey Gee [pages 217–244] Abstract: In Baze v. Rees, the U.S. Supreme Court upheld the constitu- tionality of Kentucky’s lethal injection protocol, which utilizes a three- drug combination to execute death row inmates. To challenge a lethal in- jection protocol in the future, the Court stated that an inmate would have to make a showing that the protocol in question presents a “substantial risk of serious harm” or an “objectively intolerable risk of harm.” In addi- tion, the inmate would have to show the existence of a feasible alternative that can be readily implemented and would “significantly reduce a sub- stantial risk of severe pain.” The standard set forth in Baze makes it diffi- cult for inmates to challenge lethal injection protocols. This Article dis- cusses the implications of Baze in the lower courts and examines the use of state administrative procedure acts as an alternative litigation strategy. Asylum for Former Mexican Police Officers Persecuted by the Narcos Sergio Garcia [pages 245–268] Abstract: Since President Felipe Calderón declared war against Mexico’s narcotraffickers in 2006, drug violence has escalated and has claimed the lives of over 2000 Mexican police officers. To successfully petition for asy- lum in the United States, former Mexican police officers facing persecu- tion by the Narcos must prove that they are members of a particular social group. In past cases, courts have refused to find that persecution by the Narcos qualifies a petitioner as a member of a particular social group. This Article argues, however, that former Mexican police officers facing perse- cution by the Narcos are members of a particular social group based on a shared past experience and should be granted asylum in the United States. Transplantation and Adaptation: The Evolution of the Human Rights Ombudsman Linda C. Reif [pages 269–310] Abstract: The number of human rights ombudsman institutions has in- creased dramatically over the past three decades. Such institutions are prevalent in Latin America and in Central and Eastern Europe, and are increasingly found in other regions of the world as well. Forces such as democratization, public institution-building, comparative law influences, limited state resources, and international human rights law continue the spread of human rights ombudsman institutions. This Article discusses the mandates and jurisdiction of human rights ombudsman institutions. It argues that all governments should endow human rights ombudsman institutions with as many additional powers as their institutional and legal systems permit to supplement the ombudsman’s core investigatory man- date. These include inspection, litigation, research, and education pow- ers. Further, this Article argues that all human rights ombudsman institu- tions must institute operating practices to increase their ability to protect and promote human rights. NOTES Kelo Six Years Later: State Responses, Ramifications, and Solutions for the Future Asher Alavi [pages 311–342] Abstract: In 2005, the U.S. Supreme Court upheld the constitutionality of eminent domain takings that benefit private developers in Kelo v. City of New London. The case led to public outcry on both the right and the left and the revision of many state eminent domain laws to curtail such tak- ings. However, most of the new laws have been ineffective. In many states, the burden of the takings falls largely onto poor, minority communities while, in others, revitalization projects by private developers are prohib- ited entirely. This Note examines the negative implications of current ap- proaches to takings on inner-city, minority communities and concludes that states should adopt an approach that allows revitalization of blighted areas by private developers but also provides effective limits such as a nar- row definition of blight, enhanced compensation for the displaced, and procedural provisions such as Community Benefits Agreements. “Expelled to Nowhere”: School Exclusion Laws in Massachusetts Melanie Riccobene Jarboe [pages 343–376] Abstract: Chapter 71, section 37H1/2 of the Massachusetts General Laws allows school principals to suspend any student charged with a felony and to expel that student if he or she is convicted or found to be delinquent. Students expelled from one school in Massachusetts have no right to at- tend any other school in the state. Therefore, expulsion has the potential to bring a student’s educational career to an end. This Note argues that chapter 71, section 37H1/2 of the Massachusetts General Laws is unconsti- tutional under both the Federal and Massachusetts Constitutions because it violates students’ right to a “minimally adequate education.” Further, this Note argues that the Massachusetts legislature should adopt House Bill 178, “An Act Relative to Students’ Access to Educational Services and Exclusion from School,” which strikes an appropriate balance between school safety and educational opportunity. The Right to Understand Your Doctor: Protecting Language Access Rights in Healthcare Lily Lo [pages 377–404] Abstract: The current federal landscape governing language access in healthcare provides for inadequate enforcement and compliance. This Note examines existing language access laws to determine the legal rights of limited English proficiency (LEP) individuals to obtain healthcare ser- vices. This Note explores California’s progressive work in ensuring lan- guage access rights for LEP individuals and recommends that states model their language access legislation after California’s to guarantee language access in healthcare settings. Such legislation would remove barriers and promote greater access to healthcare for LEP patients. Femininity and the Electric Chair: An Equal Protection Challenge to Texas’s Death Penalty Statute Jessica Salvucci [pages 405–438] Abstract: Capital punishment in the United States appears to apply to only one class of citizens—men. Despite their significant proportional commission of homicides, women account for less than one percent of executions in America. This Note evaluates this trend in the context of a Fourteenth Amendment equal protection challenge to capital punish- ment in Texas, America’s staunchest death penalty supporter. It discusses issues of paternalism and gender theory as they relate to the Texas capital punishment statute and its application throughout the legal and political process. Finally, this Note argues that despite a series of constitutional ob- stacles, the Supreme Court should strike down the Texas death penalty statute based on its invidious gender discrimination. COMMENTS The Continued Illegalization of Compassion: United States v. Millis and Its Effects on Humanitarian Work with the Homeless Matthew M. Cummings [pages 439–456] Abstract: Every year, more cities enact food sharing restrictions that pun- ish individuals who try to feed the homeless. These laws are often part of a general scheme to solve a city’s homelessness problem by making life so unbearable for homeless men and women that they will be forced to move elsewhere. Humanitarian aid like food sharing, however, is a form of ex- pressive conduct whereby the speaker communicates to a particular audi- ence in need that he or she is willing to care for them. Additionally, the speaker’s conduct may inform observers about a particular humanitarian dilemma or encourage them to become involved. In United States v. Millis, the Ninth Circuit failed to recognize an act of humanitarian aid for travel- ing immigrants as a form of protected speech, thereby opening the door to the creation of more harmful and unfair laws that suppress humanitar- ian aid. Youth Resistant to Gang Recruitment as a Particular Social Group in Larios v. Holder James Racine [pages 457–472] Abstract: Central American youth who refuse to join gangs are often sub- jected to horrific acts of retaliatory violence. Yet, the Board of Immigration Appeals’ introduction of two new requirements for asylum eligibility— visi- bility and particularity—have quashed the asylum hopes for members of this group. Recently, the First Circuit Court of Appeals adopted the visibility and particularity requirements and, in Larios v. Holder, applied them to deny asylum to youth resistant to gang recruitment. This Comment exam- ines the development of these requirements and argues that there is no le- gal basis for their application. It further argues that the requirements un- reasonably heighten the traditional asylum standard and ultimately concludes that the First Circuit should have rejected visibility and particu- larity as requirements for asylum, thereby rendering youth resistant to gang recruitment eligible for asylum. EIGHTH AMENDMENT CHALLENGES AFTER BAZE v. REES: LETHAL INJECTION, CIVIL RIGHTS LAWSUITS, AND THE DEATH PENALTY Harvey Gee* Abstract: In Baze v. Rees, the U.S. Supreme Court upheld the constitu- tionality of Kentucky’s lethal injection protocol, which utilizes a three- drug combination to execute death row inmates. To challenge a lethal in- jection protocol in the future, the Court stated that an inmate would have to make a showing that the protocol in question presents a “substantial risk of serious harm” or an “objectively intolerable risk of harm.” In addi- tion, the inmate would have to show the existence of a feasible alternative that can be readily implemented
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