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PLRI Reports: Spring 1995
Public Law Research Institute: 200 McAllister Str. San Francisco, CA 94102-4978 Email: PLRI@uchastings.edu
Table of ContentsFederal Contracts and Assistance Relationships: Models for Local Control of Base Closures Abstract/ Full TextAmbiguities in the Penalty Phase of Capital: Statutory Patterns and Suggestions for California Abstract/ Full Text NAFTA's Relationship to State Support of Industries and Export Abstract/ Full Text Approaches to Altering State Constitutions Abstract/ Full Text Modifying State Water Contracts: Constitutional Takings Issues Abstract/ Full Text The Temporary Insanity Defense In California Abstract/ Full Text
Federal Contracts and Assistance Relationships: Models for Local Control of Base ClosuresBy Alyson CarrAbstractThis report provides a survey of funding and contracting tools available for structuring a relationship between the Department of Defense (DoD) and a Community-Managed Cleanup (CMC) entity in compliance with the closure of military bases in California. The clean-up and transfer of military bases provides an opportunity for innovative partnerships between the federal government and local communities. The report initially summarizes the framework for relationships between federal and non-federal entities: contracts and assistance relationships. The report then provides an overview of the distinctions between the two types of assistance relationships--grants and cooperative agreements. Following that discussion is a survey of the differences between the tools-- contracts, grants and cooperative agreements. Finally, the report concludes by raising some concerns in regards to structuring the relationship under assistance relationships in relation to the goals of the CMC entity.
Ambiguities in the Penalty Phase of Capital: Statutory Patterns and Suggestions for CaliforniaBy Tracy Hughes and Shoshana LazikAbstractSentencing a defendant to death for a capital crime is perhaps the most significant decision a juror can make. States where jurors may impose the death penalty have constructed guidelines to assist the jury in the decision-making process. These guidelines, however, are often insufficient and even confusing. From the manner in which guidelines are presented to the jury to the wording of the instructions themselves, ambiguities in state capital statutes and jury instructions pervade the sentencing phase of a capital trial. This ambiguity contributes to random imposition of death sentences. The ambiguities in the California death penalty instructions are similar to those in other states' instructions. Most death penalty states use similar instructions and, consequently, ambiguities in instructions are often consistent from state to state. This paper examines other states' statutes and instructions and compares them to the California framework. This comparison highlights areas of particular ambiguity and identifies alternatives to improve the California statute and instructions. Reforming California's death penalty process may not completely eliminate the uncertainty jurors face during the sentencing phase of a capital trial. Reform may reduce the confusion inherent in the process, however, and thereby reduce the randomness with which the State of California sentences people to death.
By Peter GalAbstractCalifornia has a variety of programs to stimulate exports including trade offices, export financing, trade shows, etc. This paper addresses the issue of whether any of these programs prohibited under NAFTA as improper subsidies. The text of the North American Free Trade Agreement (NAFTA) itself is largely silent on the issues of domestic support of industries and export subsidies. NAFTA contains no explicit requirements that export subsidies or state programs designed to support specific industries be eliminated. NAFTA does, however, require that all parties to the agreement accord "National Treatment" to the goods of any other party to the agreement. This essentially means that a signatory country may not give preferential treatment to goods produced in its country. This "National Treatment" requirement would seem to preclude direct domestic support of industry. NAFTA's "National Treatment" obligation, however, is interpreted in accordance with the General Agreement on Tariffs and Trade (GATT), which excludes direct subsidy to industries before the export stage. The main exception to NAFTA's "silence" on domestic support and export subsidies is the extensive discussion and explicit allowance of such domestic support in the agricultural sector. Beyond this skeletal framework, there is little discussion of the affect of NAFTA on state support and subsidy in NAFTA itself, the Administrative Action Statement, or secondary sources. The federal-state consultation process is intended to sort out any grey areas where the legitimacy of state action is in dispute.
The methods authorized for constitutional amendments are prescribed by state constitutions and case law. The states have adopted three primary methods, in one combination or another, for amendment. Such methods include (1) the constitutional convention, (2) the legislative initiative, and (3) the popular initiative. Not all states use all three methods. This paper describes these methods, examines their use in various states, and highlights any procedures which vary significantly from the California approach. The paper also examines the constitution revision commission and the role such commissions have played in constitutional modification. The role of the commission is considered within the California context and, then, within the context of other states as well. Finally, the paper looks at data which summarize constitutional changes by number, method, and nature of amendment. Although states that allow amendment by popular initiative have a slightly higher average number of amendments proposed and adopted, the long term average number of amendments adopted per year is consistent, regardless of amendment method. Differences between states are reflected most strongly in their level of activism, that is, in the number of amendments proposed. California, which allows amendment by popular initiative, and Alabama, which does not, have been among the most active states in proposing constitutional amendments. Further, both states are likely to continue to be national leaders in proposing a large number of constitutional amendments. METHODOLOGY Researchers obtained information for this report in three ways: 1) review of state constitutions, 2) review of annotated reference guides, law review articles and other scholarly works; and 3) through access to a data base developed by the Institute of Governmental Studies of the University of California at Berkeley.
The purpose of this paper is to analyze the extent to which the California legislature may enact legislation that will effect changes to those contracts from the stand point of the due process and the takings clauses of the Fifth Amendment. This paper examines whether the water districts, through their contractual agreements, have a property interest in receiving their full entitlements of water. In addition, this paper examines whether the State's subsequent legislation affecting their water entitlements constitutes a taking of property within the meaning of the Fifth Amendment. For the purposes of this paper, the contract between the Metropolitan Water District of Southern California and the State of California, Department of Water Resources will be used as a template.
This paper discusses the current status of the insanity defense in California criminal law and compares California to other states. Currently, California criminal law does not distinguish between temporary and permanent insanity. The only relevant issue, under California law, is the defendant's sanity (or insanity) at the time of the crime's commission. California Penal Code Section 25(b) ("Section 25(b)") creates a two prong test for sanity: The first prong requires a defendant to understand the nature and quality of his act. The second prong requires the defendant to be able to distinguish between right and wrong. A defendant who cannot satisfy both of these prongs is statutorily insane. In 1994, the California State Senate amended Section 25(b). On the face of it, the 1994 amendment seems to be little more than a codification of existing case law; it prevents California courts from finding a defendant insane solely on the basis of a personality or adjustment disorder, a seizure disorder, or addiction to, or abuse of intoxicating substances. While most American jurisdictions currently use two prong insanity tests similar to California's Section 25(b), there are exceptions. A significant number of states find defendants insane if they lack the substantial capacity either to appreciate the criminality of their conduct or to conform their conduct to the requirements of law. Several jurisdictions find defendants not guilty by reason of insanity if their conduct is the result of an irresistible impulse. Finally, at least one state finds defendants insane if their criminal conduct is found to be the product of a mental disease or defect. |
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