Birdsong's Law Blog

Attorney Shirley Huang, a former student of Birdsong’s, has recently had her article Child Rapists Live To See Another Day published in the American University Washington College of Law Criminal Law Brief.  The Criminal Law Brief is a law journal where students, practitioners and academics may discuss, debate and explore various elements of  criminal law.   In her article she analyzes the Supreme Court’s decision in the  2008 case of  Kennedy v. Louisiana which held that the death penalty for child rape is unconstitutional. Attorney Huang’s article grew out of very excellent research she did while a student  in Birdsong’s Criminal Justice Administration Seminar.  Attorney  Huang won the book award in that seminar for writing the most outstanding paper of the class.

Read and Learn…

Child Rapists Live To See Another Day

Shirley Huang, Esq.[1]

 I.                   Introduction

The human capacity for good and for compassion make the death penalty tragic; the human capacity for evil and depraved behavior make the death penalty necessary.[2]

Rape has been described as a “fate worse than death”[3] and “one of the most egregiously brutal acts one human being can inflict upon another.”[4]  Child rape is perhaps the worst crime one can commit, debatably second only to murder.[5]  It was not until the mid 1980s that child sexual abuse was brought to the nation’s attention by the media as a serious issue.[6]

This article explores the constitutionality of the death penalty for the crime of child rape, focusing specifically on Louisiana’s capital child rape statute.[7]  In 1976, the Supreme Court decided that the death penalty for the crime of rape is a grossly disproportionate and excessive punishment, and thus violates the Eighth Amendment.[8]  For over thirty years, the constitutionality of making child rape a capital crime was questioned.  The Court ended the ambiguity of the issue by recently determining that the death penalty is inappropriate for the commission of child rape where the victim is left alive.[9] 

Birdsong wishes to share with you a well written  directed research paper by student Daniel Burgess.  Mr. Burgess is a strong advocate of the Second Amendment to the Constitution and opposes gun control.  His paper analyzes the early foundations of gun control laws in the U.S.  He submits that more citizens with guns would mean less crime. It is his basic thesis that the Second Amendment right of U.S. citizens to bear arms is a enumerated individual right.  Mr.  Burgess makes some cogent arguments concerning gun control  and self defense.  He has given Birdsong his permission to share his  thoughts and arguments with a wider world. Take a gander.

If You Want to Stop the Crime, Let Me Have What’s Mine:

America’s Crime Rates and Our Individual Right to Keep and Bear Arms

Daniel W. Burgess, Jr.

July 27, 2009

 I.                   Introduction

This paper addresses the issues of crime and gun control. There is an ongoing debate about whether gun control is the problem or the solution. Proponents of gun control seek to strip the people of their constitutional right to keep and bear arms under the veil of flagrant and idyllic responses to crime, claiming guns are the problem. The opponents of gun control fight for the very freedom which was granted to them by the founding fathers and enumerated in the Bill of Rights, arguing that more guns equals less crime. [1] The reality is that by taking a law abiding citizen’s means of self-protection, one is essentially arming the criminal and inviting crime into every peaceful household in America. Italian criminologist, Cesare Beccaria, summed it up perfectly by

After class discussions last week concerning overbroad criminal statutes that target minority groups, a number of Birdsong’s criminal law students have sent him email news stories regarding the recent arrests of black teenagers in  south Florida for wearing sagging pants.

We now learn that a judge in Riviera Beach, Florida has declared unconsitutional a law banning the wearing of  sagging pants

Birdsong has lived in the Caribbean and enjoys travelling there.  He also sometimes researches and writes on legal topics concerning the English Speaking Caribbean. The article I post herewith is about the formation of the Caribbean Court of Justice.  

Birdsong is the first American to write about the CCJ and is very proud of the fact.  The CCJ is a regional court for the Caribbean that will, among other things, serve as a type of “Supreme Court” or court of last resort for criminal matters.  Until the formation of the CCJ Caribbean criminal defendants had to take their final appeals to the Privy Council in England. The Privy Council is the judicial wing of the British House of Lords.  Birdsong believes the formation of the CCJ spells the end of British colonial rule in the Caribbean and a triumph for the people of color of the ESC who have fashioned the new court.

 his article was originally appeared in the 2005 Winter/Spring edition of the University of Miami Inter-American Law Review. 

The Formation of the Caribbean Court of Justice: The Sunset of British Colonial Rule in the English Speaking Caribbean

 Leonard Birdsong © 2004

    I.       INTRODUCTION

For a period of almost three centuries, ending at the close of World War II, Great Britain ruled a vast colonial empire. During this period, it was said that the sun never set on the British Empire. Britain ruled colonies in the Near East, the Far East, India, Africa, Australia, New Zealand, and the Caribbean. Since World II, all but a few British colonies sought and won their inde­pendence. A number of the former colonies formed their own gov­ernments, implemented their own parliaments, and devised their own court systems. Many became Commonwealth countries, keeping strong ties to Britain. Despite their independence, how­ever, most former colonies retained the English common law as their legal system.

Birdsong has a question for all you Constitutional Law students out there — how much do you know about the Abstention Doctrine? 

If the answer is you never heard of it.  You had better read some of the following Birdsong article before you take your Con Law final exam! 

Here is the article: 

COMITY AND OUR FEDERALISM IN THE  

TWENTY FIRST CENTURY: THE ABSTENTION 

 DOCTRINES WILL ALWAYS BE WITH US –

GET OVER IT!!

By: Leonard Birdsong^**

© 2002

                        I. INTRODUCTION…………………………………………………………………………………………………..1

                        II. THE CLASSIC ABSTENTION CASES…………………………………………………………………..3

                                        A. PULLMAN ABSTENTION………………………………………………………………………4

                                        B. BURFORD ABSTENTION……………………………………………………………………….7

                                        C. COLORADO RIVER ABSTENTION…………………………………………………………8

                                        D. YOUNGER ABSTENTION…………………………………………………………………….10

                        III. SOME CRITICISMS OF THE ABSTENTION DOCTRINES………………………………….13

                        IV. THE ABSTENTION DOCTRINE IN THE TWENTY FIRST CENTURY……………….20

                                        A. OVERVIEW………………………………………………………………………………………….21

                                        B. PULLMAN IN THE TWENTY FIRST CENTURY……………………………………21

                                        C. BURFORD IN THE TWENTY FIRST CENTURY……………………………………37

                                        D. COLORADO RIVER IN THE TWENTY FIRST CENTURY……………………..47

                                        E. YOUNGER IN THE TWENTY FIRST CENTURY…………………………………..56

                        V. THE TALLY ON ABSTENTION IN THE TWENTY FIRST CENTURY…………………68

                        VI.. CONCLUSION…………………………………………………………………………………………………76

      I. INTRODUCTION 

            In the United States we are blessed – or cursed – with a legal system that contemplates parallel judicial processes.  We have a federal court system and each state has a separate state court system.  Since 1941 there has been considerable recognition of circumstances under which a federal court may decline to proceed though it has jurisdiction under the Constitution and federal statutes.¹ The cases in which this has been recognized are usually referred to as the “abstention doctrine.”² The abstention doctrine prohibits a federal court from deciding a case within its jurisdiction so that a state court can resolve some or all of the dispute.³  The purpose of such doctrine is to  preserve the balance between state and federal sovereignty.⁴ This constitutional balance is often referred to as federalism or comity.⁵ Scholars have come to refer to not one, but a number of various types of cases which reflect various notions of comity for purposes of abstention.  In practice it is more precise to refer to the “abstention doctrines”.  These abstention doctrine cases reflect a complex of considerations designed to avoid friction between federal and state courts.⁶