The Case for Second Chances: A Pathway to Decarceration in Maine

The Article argues that Maine incarcerates too many people, for too long, for too many things, at too great of an expense. We offer evidence to support this claim, briefly review some of the criminal legal legislation that shaped our present reality, and show how recent efforts at reform have been, at best, only modestly successful. In concert with a growing number of expert voices across the country calling for strategies of decarceration, our goal is to demonstrate the need for second chance legislation in Maine in the form of the reinstatement of parole, an effective clemency process, a far-reaching reevaluation of custody levels, and a new revision of the Maine Criminal Code. We argue that Maine needs a restorative pathway to decarceration that would meaningfully reduce the number of people in prison and recidivism rates, while emplacing broader and more effective responses to harm than that afforded by incarceration alone

Fishing Communities and Public Participation in Federal Decisionmaking: A Case Study of Community Opposition to the Mid-Barataria Sediment Diversion Project

In debates surrounding coastal restoration projects, the word “community” is heard frequently. Coastal restoration projects have the potential to affect a wide range of communities, both those which are place-based as well as communities of practice that are not geographically bound. However, the lack of a single, accepted definition of community can lead to faulty assumptions about who is being represented in policy debates which can undermine efforts to build consensus and support for coastal restoration efforts. This Article presents a case study of community conflicts and public participation surrounding a large, controversial coastal restoration project in Louisiana—the Mid-Barataria Sediment Diversion. The case study contrasting the special consideration granted fishing communities under federal law with the more common approach to public participation in federal decision-making—broad public notice and comment opportunities without any particular community focus. Federal fishery managers are mandated to take into consideration impacts to “fishing communities” when regulating fisheries, but there is little consensus on how that term is defined. Without consistent definitions and inclusion criteria, it is difficult to identify and assess impacts to fishing communities. This case study explores the differences between these two engagement approaches. Although the environmental review process for large coastal restoration projects does not implicate the fishing community analysis mandated by federal law, it could be a model for how to identify and mitigate impacts on affected communities in the future

When Fines Don\u27t Go Far Enough: The Failure of Prison Settlements and Proposals for More Effective Enforcement Methods

The Eighth Amendment’s Punishments Clause provides the basis on which prisoners may bring suit alleging unconstitutional conditions of confinement. Only a small number of these suits are successful. The suits that do survive typically end in a settlement in which prison authorities agree to address the unconstitutional conditions. However, settlements such as these are easily flouted for two primary reasons: prison authorities are not personally held liable when settlements are broken, and prisoners largely lack the political and practical leverage to self-advocate beyond the courtroom. Because of this, unconstitutional prison conditions may linger for years after prison authorities have agreed to ameliorate them. This is an unacceptable result, and one that is largely shielded from the public eye. This Comment contends that if the United States is to fulfill its promise that “cruel and unusual punishments” will not be inflicted on its prison populations, the judiciary’s methods of enforcing settlements must be expanded beyond the fines it currently employs. This Comment provides a brief grounding in Punishment Clause suits based on select conditions of confinement issues and discusses a real-world example of a prison settlement that went largely ignored for several years. It then proposes three statutory modifications as stronger enforcement methods that the judiciary may employ post-settlement: partial abrogation of qualified immunity, modification of the deliberate indifference standard, and a loosening of the strictures of the Prison Litigation Reform Act. Finally, this Comment also offers a policy solution pre-incarceration: strengthened adherence to the twin prosecutorial duties of protecting the public and imposing alternatives to incarceration

Getting the Green Light: Renewable Energy as an Internal Tribal Matter

For over forty years the Wabanaki people of Maine have had their sovereignty diminished as a result of the Maine Indian Claims Settlement Act (MICSA), an arrangement with the state and federal government unlike any other tribal sovereignty arrangement in the Unites States. The MICSA was born from a decades-long debate over land rights and resource rights in Maine, culminating in a “compromise” that avoided political conflict at the expense of Wabanaki sovereignty. Under the MICSA, the Wabanaki do not have sovereign status, instead only holding sovereign control over those matters the state deems “internal tribal matters.” Among the many aspects of self-governance affected by this lack of sovereignty is an inability to exert full autonomous control over natural resources on Wabanaki lands and waters. Renewable energy is an example of one such resource that could provide immense benefits to the Wabanaki people by allowing increased independence from the state and a source of additional income. Through a review and re-interpretation of the MICSA’s history and case law, this Comment seeks to redefine the definition of internal tribal matters to encompass the development of renewable energy projects contained within Wabanaki lands if created with the intent of directly supporting Wabanaki communities. This new test for determining internal tribal matters is then applied to hypothetical utility scale and small-scale renewable projects to determine when the Wabanaki could proceed with development as sovereigns without oversight from the state. This Comment will conclude with a brief discussion of the broader issues inherent in the current status of the Wabanaki under the MICSA with an eye towards a more comprehensive solution and grant of full sovereignty

Windward Woes: The Misalignment of Economic Incentives and Renewable Energy Development Goals

Energy tax credits have always been a significant driver of renewable energy development, but the recent Inflation Reduction Act in response to new national development goals represents the most significant change in several decades. The Inflation Reduction Act is certainly a step in the right direction, but there are numerous factors that limit the impact on future developments that should be remedied to allow for the nation’s best chance to reach 2030 renewable energy goals

The New People v. Collins: How Can Probabilistic Evidence be Properly Admitted?

The California Supreme Court’s decision in People v. Collins is a staple in Evidence casebooks. An innovative assistant district attorney in the trial court had presented a mathematician who applied probabilities to questions about the perpetrators’ characteristics. The state supreme court disapproved the injection of an equation featuring what mathematicians call the “product rule.” The opinion contains thank-goodness-we-escaped-that-disaster reasoning and condemnation of this use of mathematics with probabilities. But the court’s analysis probably would be different if the case were decided today, as the “new” People v. Collins. Therefore, this Article considers what the author calls the new People v. Collins: that is, the Collins analysis as it would be presented now, as the Collins of the present day. The Article concludes that the California court’s reasoning was wrong as viewed from today, even if the result is defensible. Its opinion relied on a one-sided characterization of the ADA’s evidence and argument. The court’s conclusions would have been better presented if they had included balancing in the manner of Evidence Rule 403, of the value of probabilistic reasoning against its tendency to mislead as weighed by the court. And the court declined to consider the principle that no one piece of evidence is required to prove the entire case, by its indicating that the mathematics could not by itself prove guilt

Respect My Authority: The Past, Present, and Future of the Public Authority

This comment synthesizes various historical aspects of motor vehicle infrastructure in the United States. The network of issues at play involves centuries of public policy decisions made at the local, state, and federal level, which twentieth century legal innovations hastened and curdled into the car culture we are all a part of today. The public authority is the paradigm of these legal innovations, but it has outlived its usefulness in the face climate change and burgeoning issues relating to urbanism

30 Years Removed, Oil-Spill Liability Insurance\u27s Evolution since the 1989 Exxon Valdez Incident

In the thirty years since the Exxon Valdez incident, much has changed. This article looks back at the events of the accident and the subsequent changes to the marine pollution insurance industry, from the statutes regulating oil tankers in 1989 to the Oil Pollution Act of the 1990. The regulatory framework resulting from the Exxon Valdez is examined and compared to the litigation deriving from the spill

Power v. Power: Federal Pattern-or-Practice Enforcement Actions Applied to Local Prosecutors

One of the most powerful tools available to the United States Department of Justice (DOJ) to stop abuses in the criminal justice system is the federal pattern-or-practice statute, which allows DOJ to bring an enforcement action to prevent discriminatory conduct by government agencies. The most powerful actor in the criminal justice system is the district attorney, the local prosecutor who is at the center of the system. Does DOJ’s pattern-or-practice enforcement authority extend to local prosecutors? This crucial question remains unresolved in formal precedent and has not been addressed in the relevant literature. This Article explores the issue in detail, considering the statutory and legislative background from both federal and state sources, the meager and uninstructive real-life scenarios where DOJ has attempted to bring an enforcement action against a local prosecutor, parallel precedent addressing DOJ’s authority over judges, and DOJ’s own conflicted views. Federal resources demonstrate an almost uniformly negative view of DOJ’s standing to bring a pattern-or-practice action against a local prosecutor. However, previously unexplored state law and an analysis of the evolving and expanding authority exercised by some district attorneys reveal novel and newly viable avenues to establish DOJ’s standing in this area. This Article finds that DOJ currently lacks uniform standing to bring a pattern-or-practice enforcement action against a district attorney, with such authority existing only in limited circumstances. The benefits and dangers of amending the statute to grant DOJ such power are addressed, including practical issues, normative concerns, and political ramifications. This Article recommends that the pattern-or-practice statute be amended explicitly to include local prosecutors, providing critical nationwide oversight regarding such potent actors. The Article also explores a potential alternative solution which would provide more transparency regarding the decision-making of district attorneys