Showing papers in "Fordham Urban Law Journal in 1985"

"not in my neighborhood:" legal challenges to the establishment of community residences for the mentally disabled in new york state

Abstract: • Assistant Attorney General, New York State Department of Law. Member of New York and District of Columbia Bars. B.S. 1974, Cornell University, J.D. 1977, Fordham University. The author was the Research Editor of the Fordham Urban Law Journal, Volume V, 1976-1977. The views expressed in this article do not necessarily represent the views of the New York State Department of Law. The author gratefully acknowledges the assistance of Thomas P. Dorsey, Esq. and Lewis A. Golinker, Esq. of the New York Bar. 1. See, e.g., Kihss, U.S. Willowbrook Study Calls for Smaller Mental Hospitals, N.Y. Times, Nov. 1, 1972, at 49, col. 4 [hereinafter cited as Willowbrook Study}; Sibley, Willowbrook Physician Doubts Report About Severe Injury as Result of Fall, N.Y. Times, Sept. 30, 1972, at 35, col. 4; Narvaez, Albany Session Labeled 'Do Nothing', N.Y. Times, Feb. 18, 1972, at 24, col. 4; N.Y. Times, Feb. 5, 1972, at 33, col. 1; id., Feb. 2, 1972, at 78, col. 4; id., Jan. 13, 1972, at 45, col. 1; Sibley, Legislators Tour School for the Retarded, N.Y. Times, Dec. 21, 1971, at 35, col. 3. These articles describe various investigations undertaken by state and local officials, the National Institute of Mental Health, the United States Department of Health Education and Welfare, and WABC-TV newsman Geraldo Rivera. The litigation concerning Willowbrook State School for the Mentally Retarded (Willowbrook) was brought by the New York State Association for Retarded Children, Inc. (NYSARC). In one phase of the litigation, NYSARC v. Rockefeller, 357 F. Supp. 752 (E.D.N.Y. 1973), the testimony illustrated the types of conditions existing at Willowbrook. In its decision granting NYSARC a preliminary injunction, the court noted: Testimony of ten parents, plus affidavits of others, showed failure to protect the physical safety of their children, and deterioration rather than improvement after they were placed in Willowbrook School. The loss of an eye, the breaking of teeth, the loss of part of an ear bitten off by another resident, and frequent bruises and scalp wounds were typical of the testimony. During eight months of 1972 there were over 1,300 reported incidents of injury, patient assaults, or patient fights. The number of ward attendants is below the level which even the Director of Willowbrook thinks proper, and unauthorized absences worsen the shortage. There are only half the number of .doctors that are needed, and nurses, physical therapists, recreation therapists, and other professional staff are in short supply. . . . Physical maintenance is poor, with a backlog of 750 work orders and at leas t one toilet inoperative in every battery of toilets.

Death after life: the future of new york's mandatory death penalty for murders committed by life-term prisoners

Abstract: This Note analyzes the relevant Supreme Court death penalty decisions from 1972 to 1985 in order to compare New York’s mandatory death statute for life-term prisoners who murder with other state death penalty statutes that have been reviewed by the Supreme Court. After considering both the legal and nonlegal arguments, this Note concludes that there can not and should not be a mandatory death penalty for life-term prisoners who murder in New York. This Note recommends that the New York legislature draft a discretionary death penalty statute for life-term prisoners who murder. A discretionary death penalty statute, which provides for consideration of both mitigating and aggravating factors, is a more viable method of imposing a death sentence on a convicted felon. DEATH AFTER LIFE: THE FUTURE OF NEW YORK'S MANDATORY DEATH PENALTY FOR MURDERS COMMITTED BY LIFE-TERM

The Minneapolis Anti-Pornography Ordinance: a Valid Assertion of Civil Rights?

Abstract: The author of this student note examines a recent Minneapolis city ordinance that declares pornography to be both subordination of and a form of sex discrimination towards women. First Amendment proponents challenged the ordinance as unconstitutional. The author considers whether the state has a compelling interest in protecting its citizens from civil rights violations, and whether that interest can overcome first amendment rights. The author concludes that pornography is neither a civil rights violation, nor a category of unprotected speech.

EXECUTING YOUTHFUL OFFENDERS: THE UNANSWERED QUESTION IN EDDINGS v. OKLAHOMA

Abstract: The juvenile justice system was created to “treat” and to ”rehabilitate” the juvenile offender. But transfers to the adult criminal system allows for juvenile offenders to receive the death penalty for capital crimes. This Note examines the theories of punishment underlying the death penalty, briefly discusses the creation of the juvenile court system and the mechanism of juvenile transfer. This Note then discusses the development of the death penalty by examining Supreme Court cases which have considered state laws challenged under the eighth amendment as forms of cruel and unusual punishment. Supreme Court decisions which have extended constitutional guarantees to minors in the areas of criminal prosecutions and privacy rights also are examined. The decision of the Court in Eddings v. Oklahoma is then analyzed as with the conflicting state and federal decisions and capital punishment statutes. Finally, this Note proposes a model amendment to existing death penalty statutes which prohibits capital punishment of juveniles.

The deregulation of commercial television

Abstract: In August 1984, the Federal Communications Commission released the Report and Order in the Matter of the Revision of Programming and Commercialization Policies, Ascertainment Requirements, and Program Log Requirements for Commercial Television Stations, affecting the FCC regulations concerning programming policies, ascertainment requirements, program logging rules and commercialization policies. This Note analyzes these regulatory changes from this Report and Order according the following structure: first, a historical exposition of radio and television regulation in general and of the areas affected by the deregulation in particular; second, an assessment of the changes in the context of the modern television marketplace; and third, a discussion of television content regulation and the first amendment. This Note concludes that, although the deregulation is a major step forward in accommodating the changing broadcasting marketplace, the FCC has not made any real progress on the crucial issue of full first amendment protection in broadcasting.

A Case for Increased Confidentiality

Abstract: The Sixth Amendment right to counsel is a cornerstone of the American legal system. In order to provide effective representation to a client, an attorney must be informed of all the relevant facts, including clients’ indiscretions and crimes committed or contemplated by them. To draft effective motions, affidavits, etc., the attorney often needs information that only the client can provide; this same reasoning applies to conducting an effective cross-examination and forming an appropriate trial strategy. In addition, outside the criminal field, an attorney advising a corporate client must also know relevant data. Vital constitutional rights will be lost if lawyers become whistleblowers. Thus, the final version of Rule 1.6 should be adopted (granting limited permissive disclosure). Lawyers should be trusted to make moral and ethical decisions, in the context of the delicate lawyer-client relationship.

The constitutionality of state and local governments' response to apartheid: divestment legislation

Abstract: In response to the realities of apartheid South Africa, many state legislatures promulgated divestment legislation, which mandates the withdrawal of public funds and/or public pension funds from corporations and financial institutions that do business in or with South Africa. This Note discusses state and local governmental such legislation. It then analyzes the constitutional difficulties posed by legislation in the areas of foreign affairs and interstate and foreign commerce. This Note concludes by considering alternatives to the state and local legislation and urges the adoption of federal measures to restrict United States investment in South Africa.

The effect of title i of the 1949 federal housing act on new york city cooperative and condominium conversion plans

Abstract: In 1985, three Manhattan housing projects were in litigation to convert the units from rental to condominiums or cooperative ownership However, each project’s redevelopment agreement, consistent with Title I of the 1949 Federal Housing Act, required that “no change” be made without consent of the City Planning Commission and the Board of Estimates of the City This Note analyzes whether the conversion of rental units built under Title I to ownership units constitutes a ”change” as interpreted by the New York courts The interpretation of the term ”change” under the Title I redevelopment agreements will be analyzed from both the City of New York’s and the private developer’s views In addition, the legislative purposes behind Title I’s enactment will be examined from the perspectives of both the City of New York and the private developer Finally, the current status of Title I will be discussed This Note concludes that a ”change,” for purposes of New York City redevelopment agreements drafted pursuant to Title I, refers only to land use and density and does not relate to the form of ownership Therefore, city approval should not be required for a Title I building to convert to condominium or cooperative status

To die or not to die: the new york legislature ponders a natural death act

Abstract: In December, 1984, New York’s Governor Mario Cuomo appointed a twenty-three member commission to recommend ways for the New York State Legislature to respond to a vast range of issues concerning medicine and morality. One of the major issues the commission will examine is the medical and legal implications arising from doctors’ withholding or withdrawing life-sustaining medical treatment from terminally ill patients. This Note first examines how states other than New York have settled the question of withholding or withdrawing life-support treatment from dying patients by judicial decision or by statute. The Note then discusses recent New York decisions addressing this issue. Following a discussion of recent developments and legislative proposals, this Note recommends that the New York State Legislature adopt a “living will” statute which enunciates the procedures to be followed in withdrawing or withholding life-saving treatment from terminally ill patients. In addressing this issue, the legislature should take special notice of and seek to remedy the inadequacies of existing ”living will” statutes so that current questions pertaining to artificial feeding and decision-making for incompetent patients are answered. Only then will doctors and hospitals be fully protected from civil and criminal liability resulting from the withholding or withdrawing of life-sustaining medical treatment from terminally ill patients.