Catalog: Digital Commons at Pace - New Repository Articles
"I Am Opposed to This Procedure": How Kafka's In the Penal Colony Illuminates the Current Debate About Solitary Confinement and Oversight of American Prisons
This is the 100th anniversary of Franz Kafka's In the Penal Colony. The story brilliantly imagines a gruesome killing machine at the epicenter of a mythical prison's operations. The torture caused by this apparatus comes to an end only after the “Traveler,” an outsider invited to the penal colony by the new leader of the prison, condemns it. In the unfolding of the tale, Kafka vividly portrays how, even with the best of intentions, the mental and physical well-being of inmates will be jeopardized when total control is given to people who run the prisons with no independent oversight.
At the core of America's vast prison system is the pervasive practice of solitary confinement, a practice that in many ways is analogous to the penal colony machine. Like the machine, it inflicts great psychological and often physical pain on people subjected to it. It, like the machine, is used to punish people for trivial offenses without due process. Like the machine, it is seen as essential to the operation of this closed prison system. Many of the new leaders of American prisons want to reform solitary confinement practices, but like the new Commandant in Kafka's tale, without oversight, these leaders operate in the dark, unable to effectuate meaningful change by themselves.
Kafka knew what he was talking about. The historic record, reviewed in this Article, demonstrates that Kafka had a notable legal career as an attorney at the Workers' Accident Insurance Institute for the Kingdom of Bohemia in Prague. In that job he worked on behalf of industrial workers to open closed worksites to oversight, thereby improving worker safety and preventing needless accidents. These experiences gave Kafka a realistic understanding of what can happen in closed, unregulated institutions such as prisons.
Despite the relevance of In the Penal Colony, Kafka's voice has not yet been heard in this debate. This Article is intended to fill that void and to reveal how Kafka's profound insights, so artfully crafted in the powerfully beautiful prose of In the Penal Colony, help us understand why we must open prison doors to outside scrutiny and put an end to the gruesome practice that is solitary confinement.
The New York Court of Appeals Visits (and Then Revisits) the Preclusive Impact of Administrative Findings of Fact in Subsequent State Court Actions
The Court of Appeals decision in Auqui v. Seven Thirty One Limited Partnership, 3 N.E.3d 682 (N.Y. 2013), recognizes that administrative proceedings which take the form of “quasi-judicial” determinations may sometimes be given preclusive impact in subsequent judicial proceedings provided that the identity of issue and full and fair opportunity requirements of collateral estoppel or issue preclusion are satisfied. The decision also recognizes that administrative determinations made without the benefit of rules of evidence, pre-trial disclosure and motion practice should be given very limited affect in subsequent judicial proceedings. The fact that the Empire State’s highest court unanimously reversed itself within one year is a reminder of how confusing the doctrines of res judicata and collateral estoppel are to the bench and bar of New York.
Correctional Education: Society Essential for Progressive Growth or a Detrimental Use of Taxpayers Money?
Nascent Spirit of New York or Ghost of Arms Control Past?: The Normative Implications of the Arms Trade Treaty for Global Policymaking
Does the 2013 United Nations (UN) Arms Trade Treaty (ATT) represent what Costa Rica's UN Ambassador called a nascent ‘Spirit of New York’ – a change in the rules of the arms control game in favor of humanitarianism and human rights? Or does it represent business as usual – the ghost of Arms Control past? We are convinced by neither the messianic claims of the ATT's most overheated boosters nor the doom-saying of its most ardent detractors. Rather we argue here that in both the ATT negotiation process and the treaty text, ‘norm entrepreneurs’ like NGOs, Middle Powers and small states have created space for global policy making based on humanitarian and human rights considerations. However, the negotiation and treaty also represent a melding of this ‘maximalist’ human security–civil society approach with UN General Assembly concerns about small arms proliferation and the ‘minimalist’ strategic and commercial interests of the major arms exporters. This hybrid pathway to the treaty's adoption offers possibilities for future global policy making on disarmament and arms control as well as other humanitarian issues.
Nonprofit organizations rely upon volunteers to facilitate their missions of meeting critical community needs. Since 2006, on average, 61.9 million Americans or 26.4 percent of the adult population volunteered every year through organizations delivering 8.1 billion hours of service worth approximately $162 billion to America’s communities (Bureau of Labor Statistics 2012; Corporation for National and Community Service 2010). Most recent data released by The Bureau of Labor in 2013 further suggest between September 2011 and September 2012 approximately 64.5 million people volunteered via an organization at least once. In light of high unemployment, donor fatigue, and slow economic growth, it is also anticipated that nonprofit reliance on volunteers will continue to increase (Salamon and Spence 2009). As cautioned by Doherty and Mayer (2003) when revenue sources are compromised as a result of an ailing economy, continued devolution, and severe budget cuts at all levels of government, nonprofits will increasingly be compelled to cope in new ways to achieve their missions. Therefore, as nonprofit organizations continue to face compromised revenue sources due to severe federal funding cuts and reduced donor support, managers will be compelled more than ever before to utilize their volunteers with fewer resources. However, the words of Lipsky and Smith (1989/90) and again by Brudney and Duncombe (1992) still ring true today: volunteers are not free, nor are nonprofit managers always equipped to make the most of their volunteers (Urban Institute 2004; Yanay and Yanay 2008). Furthering the findings of prior research (Levine and D’Agostino 2012), the purpose of this study is to identify the specific practices that emerge among volunteer managers in human service organizations during challenging economic times. Given that volunteer management encompasses a range of complex activities, such as recruiting, coordinating, leading, supporting, administering and organizing volunteers as well as strategic oversight and management of volunteer programs this study introduces complexity theory as a lens for understanding volunteer management capacity during challenging economic times. Although business (Curley 2012) and legal studies (Hornstein 2005) have utilized complexity as a guiding theory, the framework used in this study is a unique and important contribution to the nonprofit volunteer management literature. This study incorporates complexity theory as a means to frame a model of volunteer management that offers nonprofit chief executives, managers and funders a new perspective on how to successfully cope with volunteers and strengthen capacity during these challenging times. First, literature reviewing nonprofit and volunteer management capacity building is examined. The paper then introduces complexity theory as a basis for understanding volunteer management capacity. We then proceed with the methods section and discussion of key findings. We conclude with study limitations and areas for future research.