Vol 44. No.3 Spring 2020 | School of Law | SIU

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Vol 44. No.3 Spring 2020

ARTICLES

Restitution in the Abatement Context

Charles See................................................................................................................ 371

When a convicted defendant dies while her direct appeal is pending, federal courts today unanimously agree that the common law doctrine of abatement ab initio requires that the defendant’s conviction be “abated,” meaning the conviction is vacated and the case remanded to the district court with instructions to dismiss the indictment. But the courts have historically disagreed about what, exactly, is abated along with the conviction, particularly in the restitution context. Those focusing on the “punishment” rationale favor abating the conviction, but not any associated restitution payments, while those favoring the “finality” rationale argue that due process concerns require that restitution payments be abated along with it.

This view has the better argument. Part I examines the common law doctrine of abatement ab initio and its historical practice, the advent of the victim’s rights movement in the 1980s, and the subsequent passage of the Mandatory Victims Restitution Act (MVRA). Part II identifies and discusses the circuit split in how to treat restitution in the abatement context, and in particular how federal courts have wrestled with the “finality” and “punishment” rationales that underpin the abatement doctrine. Finally, Part III argues that the recent Second and Fourth Circuit decisions, which relied on Nelson v. Colorado to abate restitution payments following the death of defendants appealing their criminal convictions, rest on a fundamental misunderstanding of the nature of the defendant’s “right to appeal” and the civil nature of restitution payments. Once the text, history, and purpose of the MVRA are given proper consideration, it becomes clear that Congress has already spoken on this issue: While convictions should abate, restitution should not. New legislation, and new common law doctrine, are unnecessary. The statute controls.

 

Appointment of Judges and the Threat to Judicial Independence: Case Studies from Botswana, Swaziland, South Africa, and Kenya

Oagile Bethuel Key Dingake..................................................................................... 407

This Article, adapted from a speech given by Justice Dingake of the Supreme and National Court of Papua New Guinea, discusses and compares the judicial appointment process in Botswana, Swaziland, South Africa, and Kenya, and stresses the importance of fair, transparent, merit-based judicial processes which enjoy public confidence.

Following this review, Justice Dingake concludes that one of the best methods of appointing judges is through the mechanism of an independent Judicial Services Commission. Particularly, one that operates in a fair and transparent manner, follows publicized guidelines, and is transparent regarding the criterion upon which judges are to be appointed. In this way, judges that are a product of fair appointment processes can apply the law fairly, rationally, predictably, consistently, and impartially. 

 

ESSAYS

Law and Development in the United States: A Nexus with Civil Rights

Yong-Shik Lee.............................................................................................................. 433

Several decades have passed since the civil rights movement began. The movement achieved historic success owing to the efforts of so many who dedicated their lives to the call of justice and equality. This remarkable success has led to an improved society that accords the legal protection of equal rights among different races, genders, and ethnic groups. Despite this important achievement, we still have a long way to fulfilling the full promise of the civil rights movement, which at its core lies the protection and promotion of equity and dignity of all people.

The Reverend Martin Luther King, Jr., in one of his last speeches before his assassination, stated: “Now our struggle is for genuine equality, which means economic equality.” Growing economic disparities that exist along racial lines and across the country indeed pull us away from the ideals of the civil rights movement. Structural economic problems in the United States, such as chronic employment issues persisting in many regions and deepening economic polarization across the country, have exacerbated inequalities and social problems that divide the country. A fundamental change of paradigm is required to meet this challenge.

These economic problems can no longer be overcome solely by individual efforts and self-reliance. The governments, including the federal, state, and local, must address them by facilitating economic development in our communities, in cooperation with the private sector, as has been successfully implemented elsewhere. Successful economic development that vitalizes economically depressed regions and bridges the economic gaps must be achieved before we can fully meet the objectives of the civil rights movement.

 

NOTES

Tyranny Prevention: A “Core” Purpose of the Second Amendment

Skylar Petitt ............................................................................................................... 455

The Second Amendment protects “the right of the people to keep and bear arms,” but the meaning and scope of this right is hotly debated today. One of the most contentious issues is whether the Second Amendment protects so-called “assault weapons,” including some rifles, shotguns, and other military-style weaponry such as the infamous AR-15. Before courts are able to resolve this question, a thorough examination of the Amendment’s purposes is warranted in order to ensure that the outcome is consistent with constitutional design.

This Note argues that “tyranny prevention” is a core purpose of the Second Amendment which therefore necessitates protection of some quantum of military-style weaponry. It does so by examining the Second Amendment through the lens of the most commonly accepted modes of constitutional interpretation, including textualist, historical, precedential, structural, pragmatic, national identity, and moral.

This analysis is especially relevant today as courts struggle to decide what kinds of weapons are protected by the Second Amendment—and why. Although courts are understandably reluctant to engage with the topic of tyranny prevention and military weaponry, courts will not be able to properly define the scope of the right without engaging in a serious examination of the right’s core purposes. This Note seeks to do just that. 

 

An Invasion of Privacy: Genetic Testing in an Age of Unlimited Access

Najla Hasic ................................................................................................................ 519

This Note discusses how privacy rights are implicated when direct-to-consumer (DTC) genetic testing companies disclose an individual’s genetic information to law enforcement officers—often without any warrant or legal procedures required—who then use that data to implicate an individual’s family members in crimes.

After a brief introduction, Part II of this Note discusses DNA, what it is, and how it is used and tested by both state and private actors. It also provides a brief history of the Fourth Amendment with a specific focus on its application in jurisprudence as technology advances and privacy rights diminish. Finally, an overview of current statutory law related to general and genetic privacy rights as passed by Congress and individual states is offered. Part III analyzes the issues by attempting to reconcile current Supreme Court precedent interpreting the language of the Fourth Amendment to account for all of the complexities involved in dealing with genetic privacy. Part IV offers a statutory solution that will protect genetic privacy by proposing a new federal law that will (1) Require DTC ancestry and genealogy companies to adopt an automatic “opt-out” policy for consumers; and (2) Prohibit DTC genealogy and ancestry companies from sharing familial information with law enforcement agencies. The proposed statute will attempt to balance current Supreme Court precedent interpreting the Fourth Amendment, public policy interests in allowing law enforcement to solve crimes, and the need for rigid protection of genetic information in an age of incessantly advancing technology.  

 

Recreational Breeders and the Companion Animal Overpopulation Crisis

Nicole Engelhardt .................................................................................................... 555

This note proposes an amendment to Illinois law which aims to discourage recreational breeding by imposing standards and requirements on people who choose to breed their pet. Part II of this note discusses the evolution of animal law in the United States.

Following national law, there is an examination of the difference in animal law between Kentucky, Nebraska, and the country’s top state for animal law: Illinois. Part III analyzes how law in Illinois fails to provide standards regarding recreational breeding and why this is a problem. Lastly, Part IV proposes a change to Sections 2 and 2.3 of the Illinois Animal Welfare Act to bring the problem within reach of state law.