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 background”—that is, how growing up under circumstances of severe environmental deprivation can subsequently influence a criminal defendant’s mental state and actions.
*Professor of Law; Director, Civil Advocacy Clinic; Co-Director, Center on Applied Feminism, University of Baltimore School of Law; B.A., Duke University; J.D., University of Michigan Law School. I would like to thank Matthew Fraidin, Leigh Goodmark, Dan Hatcher, David Jaros, Margaret Johnson, Katie Loncarich, Libba Patterson, Lisa Pruitt, and Robert Rubinson for their thoughtful comments on this article, as well as participants at the Feminist Legal Theory Collaborative at George Washington University Law School and the Class Crits IV conference at American University Washington College of Law.
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.
*Assistant Professor, Willamette University College of Law. M.St. (LL.M. equivalent), International Human Rights Law, Oxford University; J.D., University of Iowa; M.A., University of Iowa; B.A., Political Science, University of Northern Iowa. The author wishes to thank Professors Beth Stephens and Chimène Keitner for their helpful comments and input regarding this article. However, all opinions and any errors are the author’s. It is important to also disclose that the author is counsel for plaintiffs in two civil cases brought on behalf of former Guantanamo Bay detainees Hamad v. Gates and Ameur v. Gates, and was plaintiff’s counsel in the case of Corrie v. Caterpillar. These cases are mentioned in this article.