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Abstract:
In the past two decades, researchers have amassed an impressive body of empirical data demonstrating the deleterious impact of exposure to interparental violence on children. Policymakers are now confronted with the question of how society can best prevent children's exposure to domestic violence and assist those children already exposed. A range of policy initiatives aimed at promoting the well-being of exposed children has emerged in the last several years. Whereas some statutory trends have been lauded by a broad range of constituencies, others have engendered substantial controversy. There is particularly vociferous debate about statutes that bring children exposed to domestic violence under the dependency jurisdiction of the juvenile court. This Article evaluates the soundness of this approach from theoretical and practical standpoints, and makes recommendations as to the types of statutes that are most likely to achieve their stated goals, while minimizing unintended negative consequences. This Article begins by reviewing the various types of statutes enacted to protect children from exposure to domestic violence. It then examines the history, philosophy, and traditional roles of the child protection system in the United States. It analyzes how childhood exposure to domestic violence meshes with the current mandates of, and goals served by, the juvenile court's dependency jurisdiction. The Article then focuses on the approaches taken by several U.S. states and Canadian provinces to use their child protection systems to address the needs of children exposed to domestic violence. Some states have interpreted existing statutes as reaching this population; others have passed statutes specifically expanding the state's definition of child maltreatment; and still others have made internal shifts in child protective services' handling of domestic violence cases. This Article evaluates the efficacy of these strategies, and articulates a blueprint for legal reform.

domestic violence, child protection, child maltreatment, family law, children and families

Abstract:
On May 15, 2008, the California Supreme Court held that California's prohibition of same-sex marriage violated the equal protection and due process clauses of the California constitution. The court's holdings removed state restrictions as to the gender of a person's chosen marital partner. Opponents of same-sex marriage placed a voter initiative, ultimately identified as Proposition 8, on the November 4, 2008 ballot. Their goal was to insert into the state constitution the language of the recently-stricken California Family Code section 308.5 ("Only marriage between a man and a woman is valid or recognized in California"). They hoped that by placing this language in the state constitution, they could shelter the provision from future judicial determinations of unconstitutionality.

Beginning June 16, 2008, consistent with the California Supreme Court's May 15 order, county clerks throughout California issued marriage licenses to, and solemnized and certified marriages of, same-sex couples. Proposition 8 passed with 52.3% of the vote. In response to its passage, California officials ceased authorizing same-sex marriages. Lawsuits challenging the validity of Proposition 8 were filed almost immediately after the election. Shortly thereafter, the California Supreme Court agreed to review the challenges to Proposition 8. The court indicated that it would consider the three questions. The first two questions focus on the constitutionality of Proposition 8. The third question addresses the status of the approximately 18,000 same-sex marriages that were validated by the state of California between June 16 and November 4, 2008. The third question reads: "If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before adoption of Proposition 8?" If the California Supreme Court determines that Proposition 8 is unconstitutional, it will not need to reach the third question. If Proposition 8 is sustained, however, the importance of the court's decision in response this question cannot be overstated.

This Article examines the current litigation with respect to the legal effect of Proposition 8 on California's existing same-sex marriages, if the Proposition is held to be valid. This Article reviews the legal backdrop against which the battle over the rights of same-sex couples to marry has taken place in California and around the nation. It applies the strong and well-established presumption against retroactive application of changes in statutory and constitutional law to determine what legal effect, if any, Proposition 8 can have on California's existing same-sex marriages. It concludes that the nonretroactivity presumption is not rebutted in the instant case. In addition, it emphatically rejects the assertion of Proposition 8's proponents that a withdrawal of California's legal recognition from its existing same-sex marriages (commencing the day after Proposition 8's passage) constitutes a prospective application of the measure. In particular, the institution of marriage has been extolled throughout the generations as fostering committed, long term family relationships that derive their power and meaning from their enduring nature, subject to termination only at the initiation of the parties themselves. The investment in and reliance upon the inviolability of marriages make possible - according to the California Supreme Court - "the central role that marriage plays as a stabilizing force in American society." The proponents of Proposition 8 allege that they seek to protect and preserve marriage. Yet, if they succeed in persuading the state to cast aside an entire class of marriages that were valid prior to Proposition 8's passage, these proponents will have undermined and weakened the very institution they purport to protect. Such state action would contradict the message California seeks to convey in encouraging the "commitment toward permanence" within marriage when distinguishing marriage from other more temporary relational interests. It would erode Californians' trust that the state - the theoretical third partner in every marriage - can be relied upon to uphold its commitment to and investment in all of those marital relationships that it has created. Indeed, the disruptive consequences of such action would extend beyond the same-sex couples affected most directly. They would also reverberate in their families, their communities and in society at large.

Even where a presumption against retroactive application is not rebutted in a particular case, a measure cannot be applied retroactively if doing so would violate the constitutional rights of the affected individuals. I set forth two independent grounds rendering the proposed retrospective application of Proposition 8 unconstitutional: impairment of vested property rights of the marital partners without due process; and impermissible state intrusion into the rights to liberty and marital privacy of already-married couples. Retroactive application of Proposition 8 clearly violates the California Constitution on both of these grounds. In particular, once a couple enters into a valid marriage in the United States, that marriage occupies a privileged position among the multitude of human relationships. Under both the federal and California constitutions, the intact marital relationship receives the highest level of protection from state interference. When a marital relationship is validly formed - as were California's existing same-sex marriages - the fundamental right of privacy attaches, insulating the relationship from state interference in all but the narrowest and most limited circumstances. State-initiated and state-coerced voiding or termination of a legally-valid marriage is, without question, the most drastic form of state intrusion in a marriage imaginable and, in this case, certainly does not survive the strict scrutiny review to which such state action must be subjected. The Article concludes that the remedies urged by Proposition 8's supporters in order to avoid constitutional problems are wholly inadequate to cure the constitutional defects of such application. This Article concludes that Proposition 8 cannot have any legal effect on California's existing same-sex marriages.

Abstract:
In its 2002 decision in Atkins v. Virginia, the United States Supreme Court held that the Eighth Amendment's prohibition against cruel and unusual punishment precludes the execution of "mentally retarded offender[s]." Writing for a six-member majority, Justice Stevens concluded that social attitudes and legal trends had shifted sufficiently in the thirteen years since the Court upheld such executions in Penry v. Lynaugh to justify a reversal of Penry. Indeed, according to Justice Stevens, during this interval, a social consensus had emerged favoring an absolute ban on the imposition of the death penalty on "a mentally retarded criminal." To reach this decision, the Court applied the standard set forth in its Eighth Amendment jurisprudence: that "evolving standards of decency [marking] the progress of a maturing society" inform its determination of whether a particular penalty - such as a death sentence imposed on a mentally retarded individual - constitutes cruel and unusual punishment.

In Atkins, the Supreme Court took the unusual step of transforming a specific clinical diagnosis into the ultimate legal issue by making a diagnosis of "mental retardation" dispositive of death penalty ineligibility. Despite the apparent "bright-line" clarity of an absolute ban on the execution of mentally retarded offenders, the determination of which offenders fall within the protected group is deceivingly complex. The Court's observation that, "[t]o the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded," was perhaps even more prescient than Justice Stevens realized. Much post-Atkins litigation has involved disputes about whether a particular defendant is or is not "mentally retarded." This result is not surprising in that the Atkins Court elevated the question of whether a defendant is found to be "mentally retarded" to the status of a life or death matter.

While the spirit of the Court's decision in Atkins is unquestionably humane and compassionate, the implementation of Atkins raises new challenges with this singular reliance on clinical judgments about whether an individual is or is not "mentally retarded." The Court provided some guidance, however. It cited to two commonly-accepted definitions of "mental retardation," both of which rely on evaluations of "intellectual functioning" and "adaptive behavior." States need not be bound by these definitions, however. The Court explicitly granted states discretion to determine precisely how to comply with the constitutional mandate announced in Atkins. Yet, the meanings of the concepts of "mental retardation," "intelligence," and "adaptive behavior" are - like the standards of decency guiding the Court - continually evolving, and are subjects of ongoing reevaluation and debate among scientists, theorists, and professionals. Shifts in nomenclature illustrate this phenomenon. For example, in 2006 the American Association of Mental Retardation ("AAMR") changed its name to the American Association on Intellectual and Developmental Disabilities ("AAIDD"), and made corresponding changes to the names of its journals as well. AAIDD notes that the new language reflects a critical shift in the perspectives of researchers, professionals, and others about what is now referred to as "intellectual disability." Experts suggest that "[t]he field of mental retardation is in a period of great flux and transition" and notions of what constitutes "mental retardation" are changing. If so, we must confront the normative question of which conceptualizations should guide the assessment in Atkins evaluations.

The last several decades have witnessed bold challenges to predominant concepts of "intelligence" which have important implications for how practitioners measure intellectual functioning. And, the concept of "adaptive functioning," the undervalued companion to "intellectual functioning" in modern definitions of "mental retardation," is also undergoing reevaluation. Given what is at stake in Atkins assessments, lawmakers, jurists, practitioners, and others must confront the question of how to comply responsibly with the Court's mandate in Atkins in light of the continual evolution of the knowledge, concepts, and practices relevant to its implementation.

This Article identifies some of the conceptual challenges inherent in determining who is and who is not "mentally retarded" for the purpose of applying the U.S. Supreme Court's 2002 decision in Atkins v. Virginia. It begins with an examination of the Supreme Court's articulation in Atkins of its rationales for excluding "mentally retarded" persons from the reach of the death penalty. It continues with a discussion of current notions and recent reformulations of "mental retardation," "intelligence," and "adaptive behavior." Next, it sets forth certain key principles of psychological assessment and then, more specifically, psycholegal assessments (i.e., psychological assessments conducted with the purpose of informing a legal decision), noting the convergence of the more progressive notions of "mental retardation" and its measurement, and modern principles of psycholegal assessment. It then contrasts the approaches of two states - Florida and California - to implementing Atkins and comments on how each approach fares in light of the principles guiding the conduct of valid psycholegal assessments. These analyses lead to the conclusion that for some defendants-particularly those viewed as "mildly mental retarded" - summary scores on traditional measures of intellectual and adaptive functioning will not constitute the most meaningful and relevant evidence of their disability for the purpose of death-penalty exclusion. Some defendants who are significantly intellectually impaired in ways highlighted by the Atkins Court will not be identified as "mentally retarded" on the basis of these scores, and may therefore be sentenced to death. Efforts to develop more appropriate evaluative approaches are necessary and should be grounded in modern models of psycholegal assessment guided by progressive constructions of concepts of "intelligence," "intellectual disability," and related psychological variables discussed in this Article. Until such approaches are developed, courts must recognize the limitations of existing measurement instruments. In light of the severity and finality of the death penalty, state policies should err on the side of casting a net that is too wide rather than one that is too narrow in defining "mental retardation" for the purpose of Atkins compliance. Recommendations as to the appropriate criteria are set forth in this Article's Conclusion.

Abstract:
Every year hundreds of thousands of troubled and troublesome children experience out-of-home placements under the auspices of the mental health, juvenile justice, and child welfare systems. The annual rates of such placements were higher at the end of the twentieth century than at any time since comprehensive data were first available in the 1920s. Decades of legislative reform have failed to achieve overall reductions in use of institutions and other out-of-home placements for troubled and troublesome youth. What has changed, however, is the way in which these failures manifest. In recent years, for example, thousands of parents have relinquished custody of their children to the child welfare and juvenile justice systems after unsuccessful attempts to access appropriate mental health services. Hospitals report startling increases in the number of children brought to emergency rooms for behavioral problems. Large numbers of youth have run away or been ejected from their homes because of unresolved emotional or family problems. Admissions of youth to mental hospitals have continued to rise, despite hospital down-sizing and implementation of managed-care policies.

This Article examines and challenges our legal system's conventional patterns of response to troubled and troublesome youth. Reform efforts have ignored the overlap in the populations served by the primary youth service and intervention systems, and have continued to employ narrow system-specific constructions of the problems triggering legal intervention. These efforts have failed to respond effectively to the underlying needs of these youth, their families, and their communities. Thus, not surprisingly, unintended consequences¿ including increased use of one or more alternative institutional systems¿plague deinstitutionalization efforts. In response to today's manifestations of crises involving troubled and troublesome youth, policymakers are continuing to recycle the ineffective solutions of the past.

These ineffective policies rely on strategies of removal (of children from their homes and communities), confinement (in residential facilities and institutions), and exclusion (from the mainstream of society). As such, they are incompatible with core traditions in American law and society valuing the family's role in raising children, individuals' freedom from unnecessary restrictions of liberty, and social inclusion of persons with special needs. Furthermore, while the traditional interventions provide temporary containment in crisis situations, they fail to achieve the broader parens patriae and police power purposes that authorize them.

This Article sets forth a policy vision that rejects legal interventions grounded primarily in patterns of removal, confinement, and exclusion of troubled and troublesome youth. Rather, the proposed model favors evidence-based approaches that foster positive adaptation of children within their natural systems (i.e., within families, schools, and communities). Notably, empirical research reveals that those intervention approaches most faithful to our legal and social ideals of promoting children's family and community bonds are also the most successful at improving the problems that trigger legal intervention. Initial research findings also suggest that these approaches are less costly than are traditional out-of-home placements. Alert to the failures of past reform efforts, this Article proposes legal responses that transcend current system boundaries, reflect integrated policymaking and intersystem coordination, and shift financial incentives in a manner congruent with underlying policy goals.

juvenile justice, mental health, child protection, children, family, deinstitutionalization