INTRODUCTION

Adroa, a 30 year-old woman, lives in a rural village in Northern Uganda with her three children and long-term boyfriend, who she refers to as her husband. People in her village describe her as kind and full of laughter. She makes barely enough to feed her family by selling food at the local market, and her boyfriend finds work, when he can, driving his small motorcycle (referred to locally as a bodaboda), transporting people from place to place. The average person passing Adroa’s smiling face on the orange dirt road outside her village would never know that Adroa lives in a home where she is constantly abused by her boyfriend. From being violently raped when her boyfriend comes home drunk to being beaten when she disagrees with him, she has learned to suffer through the abuse with a smile on her face just like her mother and grandmother did before her. When asked why she does not report such abuse, she responds, “What am I to report? My mother, her mother, and my grandmother’s mother all lived the same type of life. We endure or we risk losing our homes, families, and children. I pray he does not kill me, but I do not have much choice.” Adroa will likely never report the abuse she has suffered at the hands of her boyfriend.1

Abenaa is a 26 year-old woman living in the Ashanti region of Kumasi, Ghana, with her three children and husband. She works as a seamstress and provides approximately half of the family’s income. Her husband finds work building when he can. Abenaa loves ice cream and spending time with her children. She is well-known in her community and sings at church on Sunday mornings. However, Abenaa harbors a similar secret. She, like Adroa in Uganda, suffers physical and mental abuse at the hands of her husband. Her husband likes to drink and will beat her when they disagree. Though she does not claim to have been raped by her husband, she does admit to being abused. Like Adroa, she lives in a small community where wives stay with their husbands for life despite the husband’s abuse or infidelity. However, unlike Adroa, Abenaa was told about Ghana’s Domestic Violence Victims’ Support Unit (DOVVSU). She filed a report with DOVVSU, which investigated her case of abuse. Thanks to the investigation, evidence was provided to Abenaa’s attorney and her case against her abusive husband has been filed with the court. Though awaiting trial, Abenaa no longer lives with her husband and has moved to the city of Kumasi with her children, where she works and finds support through her new church.2

Nelson Mandela stated, “[F]reedom cannot be achieved unless women have been emancipated from all forms of oppression.”3 Domestic violence constitutes a form of discrimination and oppression in Africa, especially in Ghana and Uganda.4 Ghanaian and Ugandan women live with an inordinately high risk of being a victim of domestic violence due to the Ghanaian and Ugandan custom of treating a wife as property.5 However, both Ghana and Uganda are known for their relatively advanced legal systems on the continent of Africa. 6 Despite having advanced legal systems and having passed similar laws against domestic violence, the response in the two nations has been drastically different.7 In that vein, both countries passed a Domestic Violence Act – Ghana in 2007 and Uganda in 2010.8 However, the courts in Ghana have prosecuted many more cases in the past nine years using Ghana’s Domestic Violence Act than Uganda, which seems to have only prosecuted one case using the Domestic Violence Act in the past six years.9

This Note seeks to differentiate between the two Domestic Violence Acts and governmental changes that followed from the passage of these Acts to determine why Ghana has done a greater job implementing the Act than Uganda. Section I introduces the topic of domestic violence by telling the stories of women living in Uganda and Ghana. Section II will provide an overview of domestic violence, including the history of domestic violence in Ghana and Uganda. Section III examines the Domestic Violence Acts of both Ghana and Uganda and other relevant law from each country. Section IV discusses the hurdles to defeating domestic violence in Africa. Section V then compares the tactics taken in each country against domestic violence and makes recommendations for improvement in Uganda’s approach to defeating domestic violence.

I. OVERVIEW OF DOMESTIC VIOLENCE

No typical victim of domestic violence exists, as victims come from all ages, ethnicities, religions, and sexual orientations. However, most domestic violence occurs due to the power inequality in a relationship between men and women; thus, women tend to be the victims.10 Domestic violence has been defined by the United States Department of Justice as “a pattern of abusive behavior in any relationship that is used by one partner to gain or maintain power and control over another intimate partner.”11 Physical or sexual abuse tends to be the most common form of domestic violence and includes “hitting”, “slapping”, “biting”, “denying a partner medical care”, “forcing . . . drug[s] . . . [on a partner]”, “marital  rape”, “treating [a partner] in a sexually demeaning manner”, and forcing any sexual act on a partner without consent.12 However, domestic violence includes more than just causing harm physically or coercing someone to commit a sexual act through the threat of physical harm. Domestic violence also includes both economic abuse through the deprivation of economic or financial resources and emotional, verbal, and psychological abuse through a pattern of degrading or humiliating conduct towards a victim using insults, name-calling, threats, possessiveness, or abuse of a minor. 13 “Domestic violence can [also] result in physical injury, psychological [abuse, [or] . . . even death]”.14

Victims of domestic violence suffer from emotional trauma at the hands of the perpetrator.15 Victims may experience an array of emotions both during and following the relationship with their offender.16 Some of those emotions include the following: isolation, depression, helplessness, wanting to escape the relationship, embarrassment, emotional withdrawal, aggressiveness, financial dependence on the abuser, shame, suicidal thoughts, alcohol abuse, religious reasons for staying in the relationship, fear of no support if they leave, and/or distrust of law enforcement or the court systems.17 Even if a victim is able to escape the relationship, victims often must live with long-lasting effects on their health, including physical problems, psychological damage, negative views of other relationships, and inability to support themselves and their families.18

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† Mary Elizabeth “Reagan” Hinton received her J.D. from Regent University School of Law in 2017.

1 Interview with “Adroa” in Northern Uganda (Names have been changed to protect the privacy of the subjects of this story).

2 Names have been changed to protect the privacy of the subjects of this story. Interview with “Abenaa” in Kumasi, Ghana (Names have been changed to protect the privacy of the subjects of this story).

3 Nelson Mandela, President of S. Afr., State of the Nation Address (May 24, 1994) (transcript available at Nelson Mandela Found.: O’Malley Archives, https://www.nelsonmandela.org/omalley/index.php/site/q/03lv02424/04lv03370/05lv03427.htm).

4 Takyiwaa Manuh, African Women and Domestic Violence, OPENDEMOCRACY (Nov. 26, 2007), https://www.opendemocracy.net/content/african-women-and-domestic-violence.

5 Gender Studies & Human Rights Documentation Center., Facts on Violence Against Women in Ghana (Mar. 2011), http://gendercentreghana.org/wpcontent/uploads/2015/04/Facts-on-Violence-gainst-Women-mar-2011.pdf; Human Rights Watch, Just Die Quietly: Domestic Violence and Women’s Vulnerability to HIV in Uganda (Aug. 2003), https://www.hrw.org/reports/2003/uganda0803/uganda0803full.pdf [hereinafter Just Die Quietly].

6 See Asante Fordjour, What is Wrong with Ghana’s Legal System?, JUSTICEGHANA, http://justiceghana.com/blog/law-justice/what-is-wrong-with-ghanas-legal-system/ (last visited Sept. 30, 2017); Brenda Mahoro Updated by Lydia Matte, UPDATE: Uganda’s Legal System and Legal Sector, N.Y.U. L. GLOBAL: GLOBALEX (Oct. 2016), http://www.nyulawglobal.org/globalex/Uganda1.html.

7 See infra Part IV.

8 See generally Immigration and Refugee Board of Canada, Ghana: Domestic violence, including protection, services and recourse available to victims, GHA103468.E (June 10, 2010), https://www.justice.gov/sites/default/files/eoir/legacy/2014/09/25/GHA103468.E.pdf [hereinafter Immig. & Refugee Bd. of Can., Ghana]; Domestic Violence Act, 2010 (Uganda).

9 See generally Uganda v. Kamuhanda, Uganda Legal Information Institute (ULII), (HCT-01-CR-SC-0024 of 2012) [2014] UGHCCRD 21 (Feb. 13, 2014) (discussing the newly recognized precedent under the Domestic Violence Act of 2010).

10 Strengthening Health System Responses to Gender-based Violence in Eastern Europe and Central Asia: Defining Gender-Based Violence, HEALTH-GENDER VIOLENCE, http://www.health-genderviolence.org/training-programme-for-health-care-providers/factson-gbv/defining-gender-based-violence/21 (last visited Sept. 22, 2017) [hereinafter Strengthening Health System].

11 Domestic Violence: What is Domestic Violence?, DEP’T JUST.: OFF. ON VIOLENCE AGAINST WOMEN, https://www.justice.gov/ovw/domestic-violence (last updated June 16, 2017) [hereinafter DEP’T JUST.: OFF. ON VIOLENCE AGAINST WOMEN].

12 Id.

13 Id.

14 Learn More: What is Domestic Violence?, NAT’L COAL. AGAINST DOMESTIC VIOLENCE (NCADV), https://ncadv.org/learn-more (last visited Sept. 22, 2017). 15 Michael O. Schroeder, The Psychological Impact of Victim-Blaming – and How to Stop It, U.S. NEWS & WORLD REP. (Apr. 19, 2016, 11:20 AM), https://health.usnews.com/wellness/articles/2016-04-19/the-psychological-impact-of-victimblaming-and-how-to-stop-it.

16 The 4 Stages of Battered Woman’s Syndrome, LAWS, http://marriage.laws.com/domestic-violence/battered-person-syndrome/stages-of-batteredwomens-syndrome/stages-of-battered-womans-syndrome (last visited Sept. 22, 2017).

17 See Emotional and Physical Reactions to Violence and Abuse, OUR BODIES OURSELVES (Mar. 14, 2005), http://www.ourbodiesourselves.org/health-info/emotional-andphysical-reactions-to-violence-and-abuse/; Why do Abuse Victims Stay?, SUDBURYWAYLAND-LINCOLN DOMESTIC VIOLENCE ROUNDTABLE, http://www.domesticviolenceroundtable.org/abuse-victims-stay.html (last visited Sept. 23, 2017).

18 See Samantha Gluck, Effects of Domestic Violence, Domestic Abuse (On Women and Children), HEALTHY PLACE, https://www.healthyplace.com/abuse/domestic-violence/effectsof-domestic-violence-domestic-abuse-on-women-and-children/ (last updated May 26, 2016).

 

“But to punish and not to restore, that is the greatest of all offences.”††

INTRODUCTION

We have a problem in the United States: the juvenile incarceration rate is the highest among . . . developed nations.1 Since the 1990s, the juvenile justice system in America, from a global context, has followed a more punitive trajectory in dealing with young offenders, in comparison to international trends.2 Indeed, internationally, countries are seeking to incorporate the United Nations Convention on the Rights of the Child (CRC), which “requires states to use alternatives to incarceration whenever possible . . . [and] prioritizes rehabilitation over retribution.”3 Currently, the United States has not ratified the CRC.4

In the United States, one “of the primary criticisms of juvenile incarceration . . . [is] its inability to effectively address recidivism.” 5 The national recidivism rate in the United States has at times exceeded 50%.6 By contrast, there is evidence that “restorative justice [programs] tend to decrease” recidivism levels.7 Restorative justice is a “model[] of conflict resolution” that treats crime as an opportunity and “emphasizes healing rather than punishment.”8

While restorative justice may be effective, this Article asserts that the answer to America’s incarceration problem is not replacing the current system with one based on restorative justice, but rather incorporating restorative justice principles into our system. After all, punishment is not bad in and of itself. Indeed, punishing criminals “treats [them] as . . . dignified human being[s] by responding to [their] conduct in a way that respects [their] choice to engage in wrongful behavior.” 9 Punishment in the form of retribution is “intended to vindicate the value of the victim denied by the wrongdoer’s action.” 10 However, the success of restorative justice at preventing future crimes and its satisfaction rates, both of which will be discussed in this Article, cannot simply be ignored. Restorative justice involves both the offender and the victim and searches for solutions for reconciliation,11 which can be very beneficial for our system. In short, the point of this Article is that a proper approach to juvenile detention involves both punishment and restoration.

This Article is divided into four parts. Part I will explain both the theories of retributive justice and restorative justice, so that the reader will understand the underlying rationales of both. Part II briefly discusses the development of the juvenile justice system in the United States and the current status of juvenile law therein. Part III will look at how restorative justice has developed in Germany, and Part IV will evaluate how principles of restorative justice from Germany could potentially be incorporated into United States law to supplement punishment.

I. THEORIES OF RETRIBUTION AND RESTORATIVE JUSTICE

In order to lay a foundation for the rest of this Article, it is important to first discuss what is meant by the theories of retributivism and restorative justice.

A. Retributivism

The criminal theory of retribution generally focuses on “revenge for the past violation of a law.”12 Typically, it is concerned with punishing a past offense rather than deterring a future one.13 The retribution sought in a criminal case may be viewed as “social condemnation” of a criminal’s act and an affirmation of appropriate social norms. 14 The position of retributivism is that “punishment is necessary,” as society must mete out some kind of “retribution against [lawbreakers].” 15 Punishment, rather than being valuable as a deterrent, is valuable in and of itself, as the person who has “committed a crime . . . simply deserve[s] to be punished,” and there is no further justification needed.16

This theory has been around for quite some time. From ancient times until the middle ages, numerous “criminal justice systems were . . . [built around a] concept of retribut[ion].”17 It can also be found in both “biblical and Talmudic forms of justice.” 18

Those who argue in favor of this theory have said that punishment is not a means of “promoting another [g]ood,” but rather is “to be pronounced over . . . criminals proportionate to their [deeds].” 19 Furthermore, it has been argued that crimes must “be negated in order to re-establish equivalence” within a society, and that can only be done through punishment.20

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† Carter Budwell graduated cum laude from Regent University School of Law in 2016. While at Regent, he worked as a Managing Editor with this Journal, and as a Graduate Assistant for the Center for Global Justice, Human Rights, and the Rule of Law. He also interned for the National Legal Foundation and the United States District Court for the Eastern District of Virginia. A native of Colorado, Carter worked for Youth With A Mission Strategic Frontiers for three years before attending law school. During this time he worked with missionaries in Central Asia, the Caribbean, Africa, and Europe. He is currently practicing law in Norfolk, Virginia.
†† ALAN PATON, TOO LATE THE PHALAROPE 264 (1953).
1 Sandra Newcombe, The DOJ Comes to Town: An Argument for Legislative Reform When the Juvenile Court Fails to Protect Due- Process Rights, 44 U. M EM . L. R EV . 921, 925–26 (2014). I acknowledge that not all juveniles who go through the American system are incarcerated. The principles discussed in this Article should therefore be applied to those who are.
2 Beth Caldwell, Globalization and Juvenile Life Sentences: Creating Meaningful Opportunities for Release for Juvenile Offenders, 2014 J. INST. JUST. & INT’L STUD. 1, 2.
3 Id. at 1–2.
4 Id. at 1.
5 Judy C. Tsui, Breaking Free of the Prison Paradigm: Integrating Restorative Justice Techniques into Chicago’s Juvenile Justice System, 104 J. CRIM. L. & CRIMINOLOGY 635, 641 (2014).
6 Connie de la Vega & Michelle Leighton, Sentencing Our Children to Die in Prison: Global Law and Practice, 42 U. S.F. L. REV . 983, 1022 (2008). See generally MATTHEW R. DUROSE ET AL ., U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS (2014), https://www.bjs.gov/content/pub/pdf/rprts05p0510.pdf (conducting a study from 2005 to 2010 which found high rates of recidivism for offenders).
7 Tsui, supra note 5, at 641.
8 Paul Clark, Restorative Justice and ADR: Opportunities and Challenges, 44 ADVOCATE , Nov. 2001, at 13, 13.
9 David A. Starkweather, The Retributive Theory of Just Deserts” and Victim Participation in Plea Bargaining, 67 IND. L.J. 853, 855 (1992).
10 Jean Hampton, Correcting Harms Versus Righting Wrongs: The Goal of Retribution, 39 UCLA L. REV . 1659, 1686 (1992).
11 See Mary Ellen Reimund, Mediation in Criminal Justice: A Restorative Approach, 46 ADVOCATE , May 2003, at 22, 22 (discussing how reconciliation can be achieved from various means such as restitution and mediation).
12 Maria Foscarinis, Toward a Constitutional Definition of Punishment, 80 COLUM. L. REV. 1667, 1679 (1980).
13 Id.
14 Id. at 1681.
15 Matthew Haist, Deterrence in a Sea of “Just Deserts”: Are Utilitarian Goals Achievable in a World of “Limiting Retributivism”?, 99 J. CRIM. L. & CRIMINOLOGY 789, 793 (2009).
16 Id. at 793–94.
17 Id. at 795.
18 Id.
19 Id.
20 Id.

INTRODUCTION

In 1993, Proposta de Emenda à Constituição (Proposal of Constitutional Amendment) 171 (PEC 171) was proposed in an effort to combat what was seen as a rise in violent crime committed by Brazilian youth.1 If ratified in its original form, PEC 171 would reduce the age of criminal responsibility in Brazil from eighteen to sixteen years old. 2 While the Amendment did not gain traction when first introduced, 3 recent highly publicized juvenile crimes brought it to the forefront of Brazilian legislation in 2015. 4 The Amendment has since garnered a considerable amount of congressional support despite being fiercely condemned by the Brazilian president.5

The Brazilian government continues to debate the advisability of adopting the Amendment. 6 Pending a formal ratification or rejection of PEC 171, this Note addresses the potential implications of adopting such legislation. Specifically, the similarity of the proposed Amendment to the current statutory guidelines permitting the transfer of juveniles to adult court in Virginia, allows for the application of a comparative criminal justice analysis.7

This Note contends that, based on decades of research citing the negative impact of juvenile transfer in Virginia, 8 Brazil should reject PEC 171 and instead strengthen its existing system of juvenile justice. Part I provides an overview of the social and legal context of juvenile justice in both Brazil and the United States. Part II addresses juvenile transfer in Virginia and its attendant consequences. Part III argues for the use of a comparative justice framework when examining the impact of transfer laws in Brazil. Finally, Part IV analyzes the potential consequences of reducing the age of criminal responsibility in Brazil and provides germane policy suggestions. Based on evidence from decades of research on the impact of transfer in Virginia, this Note concludes that the ratification of PEC 171 in Brazil will result in far-reaching, and likely unanticipated, negative consequences for both the Brazilian population at large and the Brazilian youth subjected to adult prosecution.

I. BACKGROUND

A. Constitution of Brazil

Largely due to the evolving nature of the Brazilian government, as well as several coups which resulted in brief periods of authoritarian leadership, Brazil operates under its seventh Constitution. 9 The Constitution is “federative” in that it grants “greater legislative (and unifying) authority to the central government with state legislation following national direction.” 10 The Brazilian Constitution is “the supreme law of the land . . . [and] binds all public actors, all state departments and all powers.” 11 As contrasted with the United States Constitution, the Brazilian Constitution is expansive and enumerates a wide array of social and political rights, including the rights of children.12

Though only in force since 1988, Brazil’s current Constitution already includes ninety–five amendments.13 The amendment process in Brazil first requires a proposal by either “the President; at least one third of the members of the house of representatives; at least one third of the members of the Senate; or a petition of more than half of the Brazilian states [sic] legislature.” 14 Following the proposal, “a two-fold reading in both houses as well as the approval of at least three-fifths of both houses” is required.15

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† J.D. 2017, Regent University School of Law; M.A. 2011, Old Dominion University. Special thanks to Professor Lynne Marie Kohm for her guidance, advice, and calming presence.
1 Sam Aman, Selective Adulthood: Brazil Moves to Lower Age of Criminal Responsibility, COUNCIL ON H EMISPHERIC AFF. (May 29, 2015), http://www.coha.org/selective-adulthood-brazil-moves-to-lower-age-of-criminalresponsibility/. The original proposal by Congressman Domingos also suggests that modern juveniles are more mentally developed than the youth of previous decades and are therefore capable of understanding the consequences of their actions. Id.; see also Ministério Público, PEC 171/1993, http://www.mprs.mp.br/infancia/legislacao/id2658.htm (translation on file with J. Global Just. & Pub. Pol’y) (last visited Mar. 6, 2017).
2 Aman, supra note 1.
3 Id. It has been noted that PEC 171 likely did not “pass the necessary congressional hurdles” when first introduced because the political composition of congress at the time was less conservative. Id.
4 Id. For instance, in 2014 fourteen-year-old Yorrally Dias Ferreira was murdered by her ex-boyfriend two days before he turned eighteen. This case made headlines due to the gruesome nature of the crime; “Ferreira’s killer filmed her bleeding body and spread the footage on the Internet, shocking the country and igniting social media networks.” Id.
5 Id.; see also Associated Press, Brazil’s Congress Reduces Age of Criminal Responsibility to 16, GUARDIAN (July 2, 2015), http://www.theguardian.com/world/2015/jul/02/brazil-age-of-criminal-responsibility-16 [hereinafter Brazil’s Congress Reduces Age of Criminal Responsibility to 16].
6 See Aman, supra 1; see also Brazil’s Congress Reduces Age of Criminal Responsibility to 16, supra note 5.
7 See discussion infra Part III.
8 See discussion infra Part II.
9 Jesse Burgess, Comment, Let them Eat Cake: Constitutional Rights to Food, 18 WILLAMETTE J. INT’L L. & DISPUTE RES. 256, 268 (2010); see also Brazil – Legal History, FOREIGN LAW GUIDE [hereinafter Legal History], http://0-referenceworks.brillonline.com.library.regent.edu/entries/foreign-law-guide/brazil-legal-history-COM_037301 (last updated Oct. 19, 2015).
10 Legal History, supra note 9.
11 Nick Oberheiden, Law of Brazil, OBERHEIDEN L. GROUP,
http://www.lawofbrazil.com/ (last visited Dec. 30, 2015).
12 See generally CONSTITUIÇÃO FEDERAL [C.F.] [CONSTITUTION], translated in Brazil’s Constitution of 1988 with Amendments through 2014, CONSTITUTE (Keith S. Rosenn, trans.), https://www.constituteproject.org/constitution/Brazil_2014.pdf (last visited Mar. 6, 2017) [hereinafter Brazil’s Constitution of 1988].
13 See Emendas Constitucionais [Constitutional Amendments], P RESIDÊCIA DA REPÚBLICA , http://www.planalto.gov.br/ccivil_03/Constituicao/Emendas/Emc/quadro_emc.htm (last visited Mar. 6, 2017).
14 Oberheiden, supra note 11.
15 Id.

INTRODUCTION

China is not known for a strong compliance with international law.1 This is particularly true in regard to international laws regarding human rights. 2 In at least one area, however, China is making impressive gains. In 2012, China passed a newly amended version of its Criminal Procedure Law. 3 These amendments included a brand new chapter on the treatment of juveniles.4 The chapter was remarkable for just how closely its reforms line up with international laws on children’s rights and juvenile justice. Even more notably, in the years since the passage of the bill, China appears to be making tremendous strides towards applying these legal reforms in practice — not only enforcing these standards, but proudly modeling them as “best practices.”5

Why is such progressive legal reform occurring in the field of juvenile justice, in a country which is often considered resistant at best towards implementing human rights reforms? 6 Why does China appear to be complying so well with international standards on human rights in one area of law, when it has not in many others?7

Understanding how this process of reform has occurred requires looking at both the social and political pressures that motivated the reform efforts, as well as the normative process through which they occurred. This process has been heavily influenced by an openness to legal experimentation and to the role of a variety of actors, including non-state actors, in introducing new concepts and models of dealing with juvenile crime. The juvenile justice system therefore provides a particularly interesting case study through which to explore modes by which the China implements legal reform.

I. THE 2012 CRIMINAL PROCEDURE LAW AND INTERNATIONAL LAW

On March 14, 2012, the Chinese People’s Congress adopted an amended version of the Chinese Criminal Procedure Law, which went into effect January 1, 2013. 8 Unlike previous versions of the Criminal Procedure Law, the amended version of the law has an entirely new section pertaining to juvenile defendants and how juveniles should be treated within the criminal justice system.9 The chapter is remarkable for how well the requirements outlined align with the requirements on juvenile justice as prescribed in international law.

The chapter includes eleven articles, each delineating specific requirements for how juveniles should be handled in the criminal justice system.10 Nearly all theories, language, and specific requirements set out in the chapter have been previously codified in international laws and guidelines on juvenile justice.11

The chapter sets out a theory of juvenile justice that promotes rehabilitation and reintegration with society. Article 1 of the amended Criminal Procedure Law (CPL) explains that officials should “[i]mplement the directive of education, reform, and rescue for juveniles committing crimes, and continue the principle of education first with punishment as a supplement.”12 This aligns with the theories expressed in both the Convention on the Rights of the Child (CRC) and International Covenant on Civil and Political Rights (ICCPR) that the underlying theory of juvenile justice should be rehabilitative, rather than punitive. 13 The new chapter then proceeds to set out specific requirements regarding the treatment of juveniles, nearly all of which are required by international instruments such as the CRC, ICCPR, or U.N. guidelines.

The new chapter requires, for example, that all juveniles be given access to legal counsel, a key procedural right expressed by both the CRC and ICCPR.14 While this was previously set out in Chinese law, the effectiveness of this requirement was limited. 15 The new law now explicitly places the onus on public officials such as the courts, procuratorate, or other public security officials to ensure that juveniles are, in fact, represented by counsel in criminal cases.16 It also requires that juveniles should be given special treatment throughout the criminal justice process to protect their unique vulnerabilities. For example, the law suggests that officials working with children should be specially trained to handle such cases17 and that juveniles who are detained must be separated from adult offenders.18 The law also requires that all court records must be sealed in juvenile cases to protect the privacy of the juvenile defendant.19

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† The author is a Staff Attorney at Children’s Rights in New York City. Prior to this she was a Visiting Fellow at the Center for Comparative and Public Law at the University of Hong Kong. My sincere thanks to the Salzburg Cutler Law Fellows Program which helped to spark and critique an initial conception of this paper, to Professor Katherine Franke and my brilliant classmates in her research and writing seminar, who reviewed early drafts and improved my writing tremendously, and to HKU’s Center for Comparative and Public Law for allowing me the opportunity and resources to finalize this as a Visiting Fellow.
1 Jacques deLisle, China’s Approach to International Law: A Historical Perspective, 94 AM . SOC’Y INT’L L. PROC . 267, 267 (2000).
2 See Camila Ruz, Human rights: What Is China Accused of?, BBC NEWS (Oct. 21, 2015), http://www.bbc.com/news?magazine-34592336.
3 Wendy Zeldin, China: Amendment of Criminal Procedure Law, LIBR. CONGRESS: GLOBAL LEGAL MONITOR (Apr. 9, 2012), http://www.loc.gov/law/foreign-news/article/china-amendment-of-criminal-procedure-law/.
4 Id.
5 See John Kamm, Trying Juveniles, N.Y. TIMES (Nov. 29, 2012), http://www.nytimes.com/2012/11/30/opinion/global/trying-juveniles.html.
6 THOMAS LUM, CONG. RESEARCH SERV., RL34729, HUMAN RIGHTS IN CHINA AND U.S. POLICY 1–3 (2011).
7 Kamm, supra note 5
8 Zeldin, supra note 3.
9 Id.
10 Zhonghua Renmin Gongheguo Xingshi Susong Fa (中华人民共和国刑事诉讼法) [Criminal Procedure Law of the People’s Republic of China] (promulgated by the Nat’l People’s Cong., Mar. 14, 2012, effective Jan. 1, 2013) pt. 5, ch. 1, translated in UN TREATY BODY DATABASE , http://tbinternet.ohchr.org/Treaties/CAT/Shared%20Documents/CHN/INT_CAT_ADR_CHN _20050_E.doc (last visited Mar. 3, 2017) [hereinafter Criminal Procedure Law].
11 There are eight documents which set out the majority of the international laws and standards on juvenile justice. Two of these are binding international treaties. These are the Convention on the Rights of the Child (CRC) and the International Covenant on Civil and Political Rights (ICCPR). Convention on the Rights of the Child, adopted Nov. 20, 1989, 1577 U.N.T.S. 3; International Covenant on Civil and Political Rights, adopted Dec. 16, 1966, 999 U.N.T.S. 171. China has signed both of these documents and ratified the CRC. TREATY SECTION, OFFICE OF LEGAL AFFAIRS, MULTILATERAL TREATIES DEPOSITED WITH THE SECRETARY-GENERAL, at 204, 389, U.N. Sales No. E.09.V.3 (2009). There are also five relevant United Nations rules and guidelines that provide countries with further standards on developing their juvenile justice systems. See High Comm’r for Human Rights, Rep. of the High Commissioner for Human Rights on the Protection of Human Rights of Juveniles Deprived of Their Liberty, ¶ 5, U.N. Doc. A/HRC/21/26 (Aug. 3, 2012) (collecting the five sets of rules and guidelines). Although these guidelines are not binding, they can be seen as interacting with, and sometimes clarifying, the rights described in the CRC and ICCPR. Additionally, the Committee on the Rights of the Child, the body charged with monitoring compliance with the Convention on the Rights of the Child (CRC), has issued a variety of general comments, which provide greater clarity on how the Convention on the Rights of the Child should be interpreted. In particular, General Comment No. 10 provides on how to interpret the CRC’s requirements on juvenile justice. Comm. on the Rights of the Child, General Comment No. 10 (2007): Children’s Rights in Juvenile Justice, ¶ 4, CRC/C/GC/10 (Apr. 25, 2007) [hereinafter General Comment No. 10].
12 Criminal Procedure Law, supra note 10, art. 266.
13 The Convention on the Rights of the Child (CRC) states that juveniles accused of violating criminal law should be treated in a way that promotes the child’s reintegration and productive role in society, as well as promoting “the child’s sense of dignity and worth.” Convention on the Rights of the Child, supra note 11, art. 40(1). The ICCPR requires that states should “take account of . . . the desirability of promoting [the] rehabilitation” of children in conflict with the law. International Covenant on Civil and Political Rights, supra note 11, art. 14(4). General Comment No. 10 says “[t]his principle reflects the fundamental human right . . . in article 1 of [the Universal Declaration of Human Rights].” General Comment No. 10, supra note 11, ¶ 13.
14 Article 267 of the Criminal Procedure Law states “[w]here a minor criminal suspect or defendant has not entrusted a defender, the people’s court, people’s procuratorate or public security organ concerned shall notify a legal aid agency to assign a lawyer as the defender of the minor.” Criminal Procedure Law, supra note 10, art. 276. The Convention on the Rights of the Child requires that “[e]very child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance,” and “to have legal or other appropriate assistance in the preparation and presentation of his or her defense.” Convention on the Rights of the Child, supra note 11, arts. 37(d), 40(2)(b)(ii). General Comment No. 10 clarifies that when interpreting “[l]egal or other appropriate assistance,” legal assistance should not be denied simply because other assistance is available. General Comment No. 10, supra note 11, ¶ 49. The right to counsel and free legal aid is also required by both the ICCPR and the Beijing Rules. International Convention on Civil and Political Rights, supra note 11, art. 14(3)(d); G.A. Res. 40/33, annex, United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules), rs. 7.1, 15.1 (Nov. 29, 1985) [hereinafter Beijing Rules]. Although international law imposes no direct duty on any specific actors to ensure a juvenile’s access to counsel, best practice guides have recommended that legislation or guidelines for police or prosecutors “should impose a duty on [them] . . . to assist the child in obtaining legal [assistance].” CAROLYN HAMILTON, UNICEF, GUIDANCE FOR LEGISLATIVE REFORM ON JUVENILE JUSTICE 45–46 (2011).
15 The right to counsel had actually already been specified in Chinese law in 2006. Zhonghua Renmin Gongheguo Wei Chengnian Ren Baohu Fa (中华人民共和国未成年人保护法) [Law of the People’s Republic of China on the Protection of Minors] (promulgated by the Standing Comm. Nat’l People’s Cong., Dec. 29, 2006, effective June 1, 2007), art. 51, translated in Law of the People’s Republic of China on the Protection of Minors (2006 Revision) [Revised], PKULAW.CN (last visited Mar. 4, 2017) [hereinafter Law on the Protection of Minors]. That law, however, stated that should a minor be in need of legal aid, a legal aid institution should provide it to him. Id. The burden therefore lay on the legal aid institutions (who are themselves a relatively new and problematic institution in China and who often have little power in the system) and put no direct burden on any of the actual key players in the criminal process. Legal Aid, CONG.-EXECUTIVE COMMISSION
ON CHINA , https://www.cecc.gov/legal-aid (last visited Feb. 3, 2017).
16 Criminal Procedure Law, supra note 10, art. 267.
17 Article 266 of the Criminal Procedure Law specifies that officials working in the juvenile justice system should be “familiar with the physical and mental characteristics of minors.” Id. art. 266. This echoes language in the U.N. Guidelines that “[l]aw enforcement and other relevant personnel, of both sexes, should be trained to respond to the special needs of young persons,” G.A. Res. 45/112, annex, United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), ¶ 58 (Dec. 14, 1990) [hereinafter Riyadh Guidelines], and that “police officers who frequently . . . deal with juveniles” should be “specially instructed and trained,” Beijing Rules, supra note 14, r. 12.1.
18 Article 269 of the Criminal Procedure Law requires that juveniles “held in custody or arrested or who are serving sentences . . . [should be held] separately from adults.” Criminal Procedure Law, supra note 10, art. 269. The CRC in Article 37(c) states that “every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so.” Convention on the Rights of the Child, supra note 11, art. 37(c); see also, e.g., International Covenant on Civil and Political Rights, supra note 11, art. 10(2)(b) (requiring that juveniles accused of crimes be kept separate from adults).
19 The Criminal Procedure Law requires that juvenile records be sealed. Criminal Procedure Law, supra note 10, art. 275. The Chinese Law on the Protection of Minors previously required that public sources such as the news or “computer network[s]” should not share information about juvenile defendants. Law on the Protection of Minors, supra note 15, art. 58. However, the amended Criminal Procedure Law now requires that all juveniles under the age of 18 who are sentenced to five years or less shall have their criminal records sealed, and only court officials will be able to access these documents. Criminal Procedure Law, supra note 10, art. 275. Such a requirement for privacy is expressed in the CRC in Article 40(2)(b)(vii), which states that a juvenile defendant has a right “[t]o have his or her privacy fully respected at all stages of the proceedings.” Convention on the Rights of the Child, supra note 11, art. 40(2)(b)(vii). This vague language has been clarified by the Committee in General Comment No. 10, explaining that “[a]ll stages of the proceedings” starts at the point of “initial contact with law enforcement” bodies and extends until either a “final decision” or “release from supervision.” General Comment No. 10, supra note 11, ¶ 64. General Comment No. 10 further clarifies that there should be some form of domestic legislation requiring trials to occur “behind closed doors” and that records should be kept “strictly confidential.” Id. at ¶¶ 64–66. The Beijing Rules similarly specify the juvenile’s “right to privacy” so as to “avoid harm being caused to her or him by undue publicity or by the process of labeling” and that “[i]n principle, no information that may lead to the identification of a juvenile offender shall be published.” Beijing Rules, supra note 14, rs. 8.1–2. “Records of juvenile offenders shall be kept strictly confidential . . . .” Id. r. 21.1.

INTRODUCTION

Until the U.S. Supreme Court’s 2005 decision in Roper v. Simmons, it was still lawful to sentence a juvenile defendant to death in twenty American states.2 In holding that the juvenile death penalty violates the Eighth Amendment, the Court questioned whether the main justifications that support the use of the death penalty in cases involving adult offenders, namely deterrence and retribution, can be achieved through the execution of juvenile offenders.3 Specifically, Justice Kennedy argued that the case for achieving the goal of retribution was weakened by the fact that their moral culpability was “diminished, to a substantial degree, by reason of youth and immaturity.” 4 With respect to the potential deterrent effect of the death penalty, the majority questioned whether juveniles would be “susceptible to deterrence” given juveniles’ diminished culpability and ability to think through the consequences of their actions.5

Despite the “progress” represented by the Roper decision, the United States continues to punish juvenile offenders more harshly than the rest of the world.6 Following the Supreme Court’s decisions in Graham v. Florida and Miller v. Alabama, a number of states have abolished the sentence of life without parole for juvenile offenders. 7 Still the United States remains an outlier.

Although American courts impose juvenile sentences up to and including life imprisonment, according to research conducted by David A. Shapiro, at least forty countries around the world limit the maximum sentence imposed on juvenile offenders to ten years.8 At the far end, twelve countries have a maximum juvenile sentence of twenty-years imprisonment.9

To explain the harsh treatment of juvenile offenders in the United States, scholars have typically identified a number of factors including: public support for punishment, cultural attitudes towards punishment, and rates of violent crime. Specifically, beginning in the 1990s, politicians substantially stiffened penal sanctions in juvenile cases riding a renewed wave of interest in the philosophy of individual responsibility and accountability. These changes paralleled a nearly 80% increase in violent crime related arrests of juveniles 17-years-old or younger that occurred between 1985 and 1995.10 Consistent with this shift in sentencing philosophy, between 1992 and 1997, forty-seven states changed their sanctioning policies by expanding the sentencing options available to judges, increasing the severity of juvenile sanctions, and creating procedures to permit prosecutors to transfer juveniles to adult court.11 Due to these changing political winds, juvenile incarceration rates rose dramatically during that same time period 12 and more juveniles were tried and sentenced as adults.13 According to Jeffrey Butts’ 1997 study, public fear of juvenile crime and distrust in juvenile justice led to a 71 percent increase between in youths waived into adult court between 1985 and 1994.14

The most noticeable effect of that waiver is that, in many states, juvenile offenders may receive life without parole sentences.15 Although the Supreme Court’s decisions in Graham v. Florida16 and Miller v. Alabama17 led some states to eliminate that harsh sentencing option altogether,18 juvenile offenders in Delaware, Iowa, Louisiana, Michigan, Nebraska and Washington may still receive a sentence of life without parole as a possible sentence for certain offenses.19

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† Professor of Law, Indiana University Robert H. McKinney School of Law. Professor Boyne holds a B.A. cum laude, Cornell University; M.B.A. University of Minnesota; J.D. University of Southern California Gould School of Law; L.L.M. Justus-Liebig Universität, and a Ph.D. University of Wisconsin-Madison. Parts of this article previously appeared in Chapter Eight of SHAWN M ARIE BOYNE , THE GERMAN PROSECUTION SERVICE : GUARDIANS OF THE LAW ? (Springer-Verlag Berlin Heidelberg, 2014). Republished with permission.
1 Josine Junger-Tas, Trends in International Juvenile Justice: What Conclusions Can be Drawn?, in INTERNATIONAL HANDBOOK OF JUVENILE JUSTICE 505, 505 (J. Junger-Tas & S.H. Decker eds., 2006).
2 543 U.S. 551, 564 (2005) (noting that at the time of the decisions 30 states prohibited the use of the juvenile death penalty).
3 Id. at 570–71.
4 Id. at 571.
5 Id. at 571–72.
6 See Barry Krisberg, Rediscovering the Juvenile Justice Ideal in the United States, in COMPARATIVE Y OUTH J USTICE 6 (John Muncie & Barry Goldson eds., 2006).
7 Cara H. Drinan, Juvenile Justice in America: We Can Do Better, HUFFINGTON POST (June 13, 2015), http://www.huffingtonpost.com/cara-h-drinan/juvenile-justice-in-ameri_b_7054254.html (stating that Delaware, Hawaii, Massachusetts, Texas, West Virginia and Wyoming have abolished the practice of juvenile life without parole, while other states have precluded the sentence for certain categories of juveniles).
8 David A. Shapiro, What’s Beneath the Graham Cracker?: The Potential Impact of Comparative Law on the Future of Juvenile Justice Reform After Graham v. Florida, 24 PACE INT’L L. REV . 119, 139–40, 156 (2012).
9 Id. at 140.
10 Arrests for Violent Crimes by Age, 1970–2003, U.S. Dep’t of Justice (2004), https://www.bjs.gov/index.cfm?ty=pbdetail&iid=2028 (issuing FBI Uniform Crime Reports).
11 See e.g., Junger-Tas, supra note 1, at 511; P ANEL ON J UVENILE CRIME: PREVENTION, TREATMENT, AND CONTROL, JUVENILE CRIME, JUVENILE JUSTICE 5 (Joan McCord et al. eds., 2001).
12 Malcolm W. Klein, Thoughts on Juvenile Justice Systems and Research, 9 EUR. J. CRIM. POL’Y & RES. 273, 275 (2001).
13 Office of Juvenile Justice and Delinquency Prevention, Young Offenders: What Happens and What Should Happen, NATIONAL INSTITUTE OF JUSTICE 2 (2014), https://www.ncjrs.gov/pdffiles1/nij/242653.pdf.
14 JEFFREY BUTTS, OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION, DELINQUENCY CASES WAIVED T O CRIMINAL COURT, 1985–1994 (1997); see also Shelly S. Schaefer & Christopher Uggen, Blended Sentencing Laws and the Punitive Turn in Juvenile Justice, 41 L AW & S OC . INQUIRY 435, 436 (2016).
15 Juvenile Justice: Rethinking Punitive Approaches to Addressing Juvenile Crimes, DEVELOPMENTS (UNIV . P ITT. OFF. DEV .), Jan. 2009, 6, 7, http://www.ocd.pitt.edu/Files/PDF/dev2009-01.pdf. In some states, waivers are no longer required for juveniles who commit certain types of offenses or have reached a certain age. Prosecutors may file these cases directly into adult criminal courts. See Patrick Griffin et al., Trying Juveniles as Adults: An Analysis of State Transfer Laws and Reporting, OFF. JUV. & DELINQ. PREVENTION, Sept. 2011, 1, 9–10, https://www.ncjrs.gov/pdffiles1/ojjdp/232434.pdf.
16 560 U.S. 48, 82 (2010) (holding that it is unconstitutional to sentence someone to life in prison without the possibility of parole for a non-homicide crime committed under the age of 18).
17 565 S. Ct. 2455, 2468–69 (2012) (holding that judges must consider a number of factors before sentencing a juvenile to life without parole including the defendant’s immaturity; family and home environment; family and peer pressures; an “inability to deal with police officers or prosecutors” or their own attorney; and “the possibility of rehabilitation”).
18 See Sarah Alice Brown, Trends in Juvenile Justice: State Legislation 2011-2015, NAT’L CONF. OF ST. LEGISLATURES 3 (2015), http://www.ncsl.org/documents/cj/Juvenile_Justice_Trends_1.pdf (noting those states include: California, Hawaii, Massachusetts, Nevada, Texas, Utah, Vermont, West Virginia and Wyoming).
19 Id.

ABSTRACT

Without self-sustaining commerce, developing countries cannot move towards the recognition of basic human rights and twenty-first century living standards. The purpose of this article is to explore the legal and economic theories of taxation and tariffs applied to the elements of civic infrastructure: a robust physical transportation system and an economic structure. This article advocates for conforming trade union policy towards an efficiency hypothesis method dubbed “tax minimalism theory” that espouses tax theory norms: fairness, efficiency, and simplicity of administration. Applying this theory, this paper will critique newly implemented tariff laws in West Africa by the Economic Community of West African States for its adverse effects on the transportation sector and laissez-faire trade liberalization in Ghana and Nigeria.

INTRODUCTION

Human rights mean nothing to a nation without economic structure to promulgate human dignity and prosperity. 2 Without access to basic provisions, such as food,3 water, and comfortable shelter, people do not engage in economic cooperation and civic discourse. 4

To move society towards the recognition of basic human rights by closing the gap in income disparity, there are several necessary elements to foster a twenty-first century economy in the developing world. 5 The purpose of this Note is to explore what each of these elements are and how to apply them. Part I states that infrastructure is the foundation to advancing economic development in two-fold design: (1) a robust physical transportation system and (2) an economic structure in trade union policy. Part II advocates for a fair taxation system in cross-border commerce and legal codes promoting diverse business and capital generation to ensure the sustainability of infrastructure to bridge the commercial gap between cities and rural regions. Also, there must be a method to ensure enforcement of an economic infrastructure by managing foreign capital to a high degree of professionalism and honesty. Lastly, Part III applies the new paradigm of tax minimalism theory as an efficiency hypothesis to foster economic infrastructure that shapes trust in public institutions, national identity, and base development. In short, this Note will critique the Common External Tariff (CET), newly implemented by the Economic Community of West African States (ECOWAS), and its adverse effects on trade liberalization compounded with Value-Added Taxes (VAT), and further excise taxes in Ghana and Nigeria. The compounded levies continue to promulgate restrictive trade policies on food, consumer products, and particularly specific goods for economic development crucial to transportation infrastructure. The solution posited is lowering import tariffs and code reformation to incentivize foreign investment in West African countries through an innovative methodology dubbed “tax minimalism theory.” This theory is inspired from aesthetic design principles from a broad range of artistic professions to conform to the policies espoused by tax theorists: fairness, efficiency, and simplicity of administration.

I. GENERATING THE IDEA OF SUSTAINABLE INFRASTRUCTURE

Experts are universally in agreement that the foundation in solving economic challenges in the developing world begins with infrastructure.6 However, without the means to sustain a robust network of ports, roads, communications, and power generation, a nation will only survive in the modern world for a brief season. 7 With the absence of a proper central government authority, a local population can only expect more social destabilization and a lack of their most basic human rights to development.8

Likewise, the same sustainability problems plague developed countries and their transportation infrastructure systems, as in the case of the United States for example. 9 Studies have shown that the United States has serious infrastructure problems 10 because of a lack of transport network maintenance and new infrastructure projects to streamline commerce and transportation. The same infrastructure sustainability problems can be said for much of the developed world, which sorely needs external investment to fund critical transportation needs. 11 Before investment opportunities in infrastructure development can commence on the African continent, there is a need for liberalized trade laws to foster the self-replenishing cycle of a transport system.12 But to create the cycle, raw infrastructure materials and assembled machinery must be imported from the developed world in the most efficient and cost-effective manner.13

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† This title is an homage to the renowned African novel on postcolonialism. CHINUA ACHEBE , THINGS FALL APART (1958).
†† Regent University School of Law, J.D. 2016. Mr. Gamboa received his Bachelor of Music magna cum laude with a double major in Violin Performance and Political Science from the John J. Cali School of Music and Montclair State University in 2012. Special thanks to Professor Kathleen McKee for her expert guidance and the staff of the Journal of Global Justice and Public Policy for their insight into the nuances of international law.
1 CHINUA ACHEBE , THE AFRICAN TRILOGY : THINGS FALL APART , NO LONGER AT EASE, AND ARROW OF GOD 136 (2010).
2 William Armbruster, Africa Road Less Travelled, T HE JOURNAL OF COMMERCE, (Mar. 15, 2010), http://www.joc.com/regulation-policy/africa%E2%80%99s-road-less-travelled_20100315.html (explaining that experts point to the first economic challenge to Africa, which is infrastructure); Glen T. Martin, Freedom, Economic Prosperity, and the Earth Constitution, RADFORD UNIV . (Dec. 2010), http://www.radford.edu/gmartin/Freedom.Economics.CFE.Nov.10.htm.
3 Faajir Avanenge, Effects of Market Infrastructure and Poor Access to Markets on Marketing of Grains in Selected States of Northern Nigeria, West Africa, 9 J. BUS. & RETAIL MGMT . RES. 110, 116–17 (2015) (concluding that there is a significant relationship existing between poor access to markets and marketing of grains in the states north of Nigeria).
4 Armbruster, supra note 2 (“Port congestion and poor roads hamper the development of agriculture,” the sector with the greatest potential for Africa’s economic development, because the continent has the potential to not just feed itself, but to export.); Wangari Maathai, Bottlenecks to Development in Africa, GREEN BELT MOVEMENT (Aug. 30, 1995), http://www.greenbeltmovement.org/wangari-maathai/key-speeches-and-articles/bottleknecks-to-development-in-africa.
5 G.A. Res. 41/128, annex, art. 8, Declaration on the Right to Development (Dec. 4, 1986).
6 Armbruster, supra note 2.
7 Id.
8 U.S. INST. OF P EACE, GOVERNANCE , CORRUPTION, AND CONFLICT, 1, 9, 13, (2016), http://www.usip.org/sites/default/files/ETC-D/NPEC/480021.PDF.
9 Ambe J. Njoh, Impact of Transportation Infrastructure on Development in East Africa and the Indian Ocean Region, 138 J. URB. PLAN . DEV. 1, 1–3 (2012).
10 AARON M. RENN, BEYOND REPAIR ? AMERICA’S INFRASTRUCTURE CRISIS IS LOCAL , 41 MANHATTAN INST. FOR POLICY RES. ISSUE BRIEF 1–2, 5 (2015) (noting that the major
problems are at the local level without federal funding and suggesting that new and regular projects are passed over by cheaper and underfunded methods, which increases the cost of
maintenance over time).
11 Rabah Arezki, Patrick Bolton, Sanjay Peters, Frederic Samama, and Joseph Stiglitz, From Global Savings Glut to Financing Infrastructure: The Advent of Investment Platforms, IMF W ORKING P APER (Feb. 2016), https://www.imf.org/external/pubs/ft/wp/2016/wp1618.pdf.
12 Kelly Mua Kingsley, Infrastructure Development in Fragile Economies Will Foster Better African Integration, AFRICA POL. J. 1, 3 (Apr. 25, 2016), https://apj.fas.harvard.edu/infrastructure-development-in-fragile-economies-will-foster-better-african-integration/.
13 Armbruster, supra note 2.