Date of Publication: Spring 2020
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Articles:
Funmi Anifowoshe Manning, When Prosecutors Act as Judges: Racial Disparities and the Absence of Due Process Safeguards in the Juvenile Transfer Decision
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Abstract: The juvenile justice system was created and designed to be separate from the adult criminal justice system. Initially, the juvenile system was meant to be informal and to prescribe treatment for young offenders, rather than serve as an adjudicatory forum to punish them. However, with the changing demographics in the U.S. came a change in juvenile crime rates and society’s perception of young people. Today, the parens patriae philosophy of the juvenile court system, where the state acts as a “parent-surrogate” and intervenes to protect children, is viewed as too weak and insufficient to handle certain juvenile offenders. A number of legislatures thus permit prosecutors to transfer juveniles to criminal courts with no standards to guide them nor judges to check their decisions. This transfer strips young people of the protections offered by juvenile courts, such as psychological treatment, rehabilitative services, and the privacy afforded by sealed records. Transfer practices are particularly problematic because a disproportionate number of these youths are minorities, and a large percentage of those transferred are charged with property offenses, not violent crimes. This Note advocates for the elimination of discretionary prosecutorial waiver statutes or, in the alternative, transparency and consistency in the review of waiver decisions.
Brendan Sasso, Digital Due Process: The Government’s Unfair Advantage Under The Stored Communications Act
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Introduction: A private Instagram photo could be the crucial piece of evidence that would exonerate a person on trial for murder. Yet federal law generally prohibits Instagram from providing that photo to the defendant–even if it could prevent a wrongful conviction. If, however, the photo helps prove the defendant’s guilt, the prosecution could compel Instagram to turn it over. Congress should fix this imbalance between prosecutors and defendants.
That federal law, the Stored Communications Act (SCA), protects valuable privacy interests by generally prohibiting online services from disclosing content to private parties without the user’s consent.1 It makes sense to prohibit companies from selling private communications to the highest bidder, but the law should weigh a user’s privacy interests against a defendant’s right to a fair trial. Currently, the law not only allows online providers to ignore subpoenas from everyone except the government, it exposes the providers to serious liability if they divulge user communications in response to legal process.