Brown Undergraduate Law Review — Vol. 2 No. 2 (Spring 2021)
We are proud to present the Spring 2021 issue of the Brown Undergraduate Law Review. We hope that the works contained herein offer insight and inspiration to all who read them.
We are proud to present the Spring 2021 issue of the Brown Undergraduate Law Review. We hope that the works contained herein offer insight and inspiration to all who read them.
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<strong>Spring</strong> <strong>2021</strong> || <strong>Vol</strong>. 2 || <strong>No</strong>. 2<br />
b r o w n<br />
u n d e r g r a d u a t e<br />
l a w r e v i e w<br />
The <strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong> is <strong>Brown</strong> University?s<br />
student-written and student-run journal of legal scholarship.
www.brownulr.org<br />
2
BROWN<br />
UNDERGRADUATE<br />
LAW REVIEW<br />
<strong>2021</strong> || <strong>Vol</strong>ume 2 || Issue 2<br />
Editorial Board and Staff<br />
UNITED STATES LAW<br />
EDITORS<br />
Chaelin Jung '23 (Head)<br />
<strong>No</strong>ah Glickman '23<br />
Sonia Kelly-Manning '22<br />
Christopher Morillo '21<br />
EDITOR-IN-CHIEF<br />
Jordan Kei-Rahn '21<br />
EDITOR-IN-CHIEF<br />
Filippo Zinni '21<br />
MANAGING EDITOR<br />
Ilana Duchan '23<br />
INTERNATIONAL LAW<br />
EDITORS<br />
Sophia Matthews '22 (Head)<br />
Hing Lai Sophia Chan '22<br />
David Del Terzo '23<br />
Adriana Lorenzini '22<br />
COPY EDITORS<br />
Amber Fehrs '22<br />
Katherine Harty '24<br />
Edan Larkin '23<br />
Kiara Moon '24<br />
Anna Park '23<br />
Daniel Poloner '24<br />
FACULTY ADVISOR<br />
Ari Gabinet<br />
Senior Fellow,<br />
Watson Institute<br />
Legal Expert in Residence<br />
CREATIVE TEAM<br />
Zeynep Aydin '23 (Director)<br />
Nayoung Choi '24<br />
Elaine Wang '24<br />
SPECIAL THANKS TO OUR SPONSORS:<br />
THE PRINCETON REVIEW<br />
THE BROWN LEGAL HISTORY WORKSHOP<br />
<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />
3
A LETTER FROM<br />
THE EDITORS<br />
For our final time as editors-in-chief, we are proud to present the <strong>Spring</strong> <strong>2021</strong> issue of the <strong>Brown</strong><br />
<strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong> (BULR). This moment marks one full year since our organization?s public<br />
introduction into the greater <strong>Brown</strong> community, a year replete with challenges owing both to the global<br />
SARS-CoV-2 pandemic and the BULR?s rapid expansion. We can still recall our final staff meeting before the<br />
mass exodus from campus in March 2020: a group of nine colleagues methodically discussing new submissions<br />
and initial plans for remote editing procedures. While our overall mission has never wavered, the BULR hardly<br />
resembles this pre-COVID manifestation. Instituting stronger and more efficient selection and editing criteria as<br />
well as new digital platforms such as the Blog, our staff more than quadrupled to 37 members, far exceeding the<br />
capacity of our former meeting space in the Watson Institute. This expanded team navigated our third semester<br />
of virtual operation, contributing new methods to optimize our efficacy while engendering closer relationships<br />
with authors. We owe all our accomplishments to the outpouring of student support for and engagement with<br />
our organization that enabled this mind-boggling growth. In many ways, the tumultuous nature of pandemic life<br />
provided the perfect stress test for our burgeoning publication, allowing our team to mature and excel in a<br />
hyper-complicated and ever-changing environment. We remain confident that this institutional memory will<br />
allow the BULR to master the inevitable future vicissitudes.<br />
As purveyors of substantive legal discourse, we typically reserve this letter partially as a means of<br />
acknowledging current legal issues plaguing both the United States and the greater world. Yet, the word<br />
4
A Letter from the Editors<br />
?current? wrongly implies a sense of transiency, a sense that these topics remain ephemeral, appearing one<br />
semester and dissipating by the next. Deep wounds, however, require time and care; COVID-19 hospitalizations<br />
and deaths, 2020 U.S. Presidential Election strife, the January 6th Capitol insurrection, and the murders of<br />
George Floyd and numerous other people of color? the oozing blood of our wounds. These tragic phenomenon<br />
represent symptoms, not products, of glaringly insufficient legal systems long in need of recognition and repair.<br />
Yet, time does not await positive action and wounds continue to accrue: the increase in anti-Semitic and<br />
anti-AAPI hate crimes escalate and uncertainty abounds over the future structure of the U.S. Supreme Court.<br />
The BULR remains dedicated to civil discourse of these critical legal issues. We hope that historical,<br />
theoretical, and pragmatic analyses of law and public policy permits our readers to synthesize an informed<br />
understanding of how our institutions can continue to evolve and improve.<br />
Establishing such impactful dialogue remains possible only thanks to the insightful authors featured in<br />
our flagship publication and the Blog. The articles contained herein represent only a fraction of the stimulating<br />
and worthy submissions the BULR received. The intellectual ingenuity, legal fluency, and stunning prose of our<br />
fellow students continually impress. Ranging from international space law (a topic particularly relevant given<br />
the recent venture of Jeff Bezos and Sir Richard Branson) to Native American tribal sovereignty to medical<br />
autonomy, our authors present a diverse range of topics discrete from prior volumes. We are humbled that<br />
members of the <strong>Brown</strong> community allow us to take a small role in their legal journey. We hope that the<br />
subsequent pages provide illumination and inspiration to the careful reader.<br />
With sincere gratitude, we thank all our thought-provoking authors; our diligent editorial board; our<br />
prolific Blog staff; our faculty advisor, Ari Gabinet; and our sponsors, the Princeton <strong>Review</strong> and the <strong>Brown</strong><br />
Legal History Workshop. We would also be remiss in failing to express our sincere appreciation for Michael<br />
Vorenberg of <strong>Brown</strong>?s History Department. Both Professor Gabinet and Professor Vorenberg have provided<br />
invaluable advise and tutelage both in our BULR endeavors and our own personal development; for this, we<br />
owe them a debt of gratitude. As we continue our own legal pursuits? Jordan at Yale <strong>Law</strong> School and Filippo at<br />
Georgetown <strong>Law</strong> Center? we look forward to spreading the BULR?s mission of creating accessible, unbiased<br />
platforms to highlight law-related discourse. We have come to view the BULR as an intellectual child, and thus<br />
also relish the opportunity to continue supporting the organization in advisory capacities as alumni consultants.<br />
As we take a slight step back, it is our pleasure to announce Ilana Duchan and Sophia Matthews as our<br />
successor editors-in-chief. We are confident that their leadership will provide the energy necessary for the<br />
continued expansion of the BULR, especially as we look toward greater engagement with faculty and alumni.<br />
As our mission of magnifying the voices debating timely and timeless legal issues continues, we once<br />
again sound our familiar refrain: May our words inspire a more just world.<br />
Sincerely,<br />
Jordan Kei-Rahn '21 Filippo Zinni '21<br />
Editors-in-Chief<br />
5
TABLE OF<br />
CONTENTS<br />
The Failure of the Treatment of Low-level<br />
Offenders in the Juvenile Justice System<br />
Morgan Awner<br />
Targeting Muslims and Civil Liberties Prevention:<br />
An Analysis of CVE and TVTP's Infringements on<br />
First Amendment Rights<br />
Luqmaan Bokhary<br />
Standardizing Autonomy: Medical<br />
Communication, Liability, and the Doctrine of<br />
Informed Consent<br />
Liza Edwards-Levin<br />
The Legal Precedents for Police Brutality: The<br />
Enduring Legacy of the Objective Reasonableness<br />
Standard<br />
Deepak Gupta<br />
The International Space <strong>Law</strong> Regime in the<br />
Modern Era<br />
Christopher Kobel<br />
Climate Refugees: Protection Gaps in the<br />
International <strong>Law</strong><br />
Sophia Matthews<br />
Native Sovereignty, Jurisdiction, and the Epidemic<br />
of Sexual Violence against Native Women<br />
Deborah Meirowitz<br />
Proscribable Thoughts<br />
Chris Morillo<br />
. . . . . page 7<br />
. . . . . page 21<br />
. . . . . page 32<br />
. . . . . page 46<br />
. . . . . page 57<br />
. . . . . page 66<br />
. . . . . page 75<br />
. . . . . page 91<br />
. .<br />
6
THE FAILURE OF THE<br />
TREATMENT OF LOW-LEVEL<br />
OFFENDERS IN THE JUVENILE<br />
JUSTICE SYSTEM<br />
Morgan Awner<br />
ABSTRACT<br />
The juvenile justice system was created to rehabilitate youth, instead of forcing them into the punitive adult criminal<br />
justice system. However, there are 48,000 youth under the age of 18 in secure detention facilities around the United<br />
States. There is a large overlap between those in the juvenile justice system and youth who experience high rates of<br />
trauma. However, a trauma-informed approach alone will not replace the procedural failures of the juvenile justice system<br />
that encourages paternalistic intervention and surveillance of youth.<br />
By analyzing the juvenile justice system?s origins in post-slavery America through a critical race lens, this paper shows<br />
how the juvenile justice system functions exactly as intended: to punish low income youth of color. This historical<br />
analysis, as well as an investigation into Supreme Court jurisprudence that fails to extend all due process protections to<br />
youth offenders, illustrates a juvenile justice system in desperate need of reform.<br />
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The Failure of the Treatment of Low-Level Offenders in the Juvenile Justice System<br />
Juvenile Justice: The Problem<br />
standing, the due process rights and equal protection<br />
statuses of these minors were never fully investigated by<br />
When Alin N. was 13 years old, the Providence School<br />
the courts.<br />
District filed a petition to truancy court to judge Alin as<br />
?wayward? and habitually truant. Alin suffers from<br />
sickle-cell anemia, a genetic disorder that causes severe<br />
pain and swelling, which often results in missed school.<br />
Because of his condition, Alin had an Individualized<br />
Education Plan, under Section 504 of the federal<br />
Rehabilitation Act, that stated he would not be punished<br />
for his absences. Despite extensive documentation, the<br />
truancy judge issued an arrest warrant for Alin and ordered<br />
his attendance at school that day and the next 30 days.<br />
Within two hours of returning to school, Alin was rushed<br />
to the hospital due to severe chest pain. It was not until<br />
months later, when a public defender presented evidence of<br />
Alin?s medical condition and Section 504 plan, that the<br />
judge dismissed Alin?s case. 1<br />
As Justice Fortas wrote in In re Gault, ?Under our<br />
Constitution, the condition of being a boy does not justify<br />
a kangaroo court.? 2 However, that is exactly what Alin<br />
experienced in the Truancy Court, a subdivision of the<br />
Rhode Island Family Court system. Alin was just one of<br />
The Bill of Rights guarantees citizens substantial<br />
protections in the context of government investigation and<br />
prosecution, including in respect to searches and arrest<br />
under the Fourth Amendment, due process, the privilege<br />
against self-incrimination and double jeopardy in the Fifth<br />
Amendment, and the right to a speedy and public trial,<br />
cross-examination, and counsel by the Sixth Amendment. 4<br />
Youth are often denied these same protections in the<br />
juvenile justice system, as illustrated by Alin?s case.<br />
Justice Fortas wrote in Gault that ?neither the Fourteenth<br />
Amendment nor the Bill of Rights is for adults alone,? but<br />
the Court has specifically endorsed in cases such as In re<br />
Gault, In re Winship, and McKeiver v Pennsylvania lower<br />
due process standards for juveniles precisely because they<br />
are children. 5<br />
Since the founding of the juvenile justice system,<br />
informality and flexibility have been endorsed in order to<br />
ensure rehabilitation instead of punishment. The right to<br />
counsel, a jury or public trial, sworn testimony, and the<br />
multiple plaintiffs in the class action lawsuit Boyer v. privilege against self-incrimination have not been<br />
Bedrosian, which detailed due process violations by<br />
Truancy Courts in Rhode Island. The complaint detailed<br />
failure to assign counsel, insufficient notice, and improper<br />
waiving of constitutional rights, rights which were<br />
extended to juvenile courts with In re Gault by the<br />
Supreme Court. Boyer v. Bedrosian was resolved by an<br />
11th-hour administrative order that rendered the class<br />
action suit moot. 3 Due to mootness, and subsequent loss of<br />
guaranteed by the juvenile justice system. The Supreme<br />
Court, recognizing the lack of procedural safeguards, ruled<br />
in 1967 with In re Gault to extend some due process<br />
protections to the juvenile court system, but denied full<br />
due process protections to juveniles that are afforded to<br />
adults in the criminal justice system. 6 The Court rests its<br />
decision on the doctrine of parens patriae, the power of<br />
the state to act for the welfare of the child. 7 However, with<br />
1. Boyer v. Bedrosian, 57 A.3d 259 (2012).<br />
2. In re Gault, 387 U.S. 1, 39 (1967), (Fortas, J., plurality opinion).<br />
3. Boyer v. Bedrosian, 57 A.3d 259, 271 - 274(2012).<br />
4. U.S. Constitution, Amend. IV, V, VI.<br />
5. In re Gault, 387 U.S. 1, 13.<br />
6. In re Winship, 397 U.S. 358, (1970).<br />
7. Irene Merker Rosenberg, ?The Rights of Delinquents in Juvenile Court: Why <strong>No</strong>t Equal Protection?? Criminal <strong>Law</strong> Bulletin 45, no. 5 (September<br />
- October 2009), 734.<br />
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The Failure of the Treatment of Low-Level Offenders in the Juvenile Justice System<br />
weaker liberty standard, many children are incarcerated for<br />
low-level offenses without an adequate defense nor<br />
Furthermore, there is no greater indicator of dropping out<br />
of school and decreased success in the labor market. 15<br />
procedural safeguards. In their most formative years, these<br />
A quarter of all these incarcerated juveniles are imprisoned<br />
children stand to lose the most in mental health,<br />
for low-level and low-risk offenses like technical<br />
educational attainment, and future prospects as a result of<br />
violations and status offenses. This class of juvenile<br />
incarceration. The juvenile court system exposes children<br />
offenses, including truancy, curfew violations, and running<br />
to the worst of both worlds.<br />
away, are only criminalized for those under 18. 16<br />
The United Nations Convention on the Rights of the Child<br />
requires the detention of children be a last resort, but all<br />
too often in the United States it is the first. 8 At any given<br />
moment, there are 48,000 youth in secure detention<br />
facilities around the United States. 9 10 The US leads the<br />
world in the incarceration of juveniles, along with the<br />
number of children sent to adult jails and prisons? 95,000<br />
Low-level offenses often result from a lack of basic<br />
necessities or illustrate manifestations of failures in a<br />
child?s home life or school. Instead of being directed to a<br />
network of community social services, these children are<br />
too often forced into juvenile courts or informal pre-court<br />
diversion programs. 17<br />
To end the ineffective and rampant incarceration of<br />
in 2011. 11 Incarcerated youth are more likely to have<br />
children, low-level offenses must be taken out of the<br />
mental illnesses, and are disproportionately youth of color,<br />
jurisdiction of juvenile courts in favor of evidence-based<br />
low-income, LGBTQ+, and designated for special<br />
community programs. Furthermore, for children in the<br />
education. 12 <strong>No</strong>t only does the juvenile detention system<br />
jurisdiction of juvenile courts, probation must be<br />
exacerbate racial disparities, the incarceration of youth is<br />
transformed for a smaller population with less surveillance,<br />
counterproductive and harmful. Incarcerated youth have<br />
and attorneys need to be provided to juveniles at all stages<br />
suicide rates that are two to four times higher than the<br />
of court proceedings.<br />
national youth average. 13 Detention can increase<br />
recidivism rates, and pull youth farther into the criminal<br />
justice system. 14 There is no greater single indicator of<br />
Juvenile Courts: A Discriminatory System<br />
Separate treatment for youth in criminal settings has its<br />
future incarceration than previous incarceration. roots in the reformatories and settlement houses of the<br />
8. United Nations Office of the High Commissioner on Human Rights, ?Convention on the Rights of the Child,? <strong>No</strong>vember 20, 1989,<br />
https://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx.<br />
9. ?Juvenile Justice,? Youth.gov, Youth.gov, (<strong>No</strong>vember 21, 2020), https://youth.gov/youth-topics/juvenile-justice.<br />
10. Wendy Sawyer, ?Youth Confinement: The Whole Pie,? Prison Policy Initiative, December 19, 2019,<br />
https://www.prisonpolicy.org/reports/youth2019.html.<br />
11.Human Rights Watch, ?World Report 2016: Rights Trends in Children Behind Bars,? (2016),<br />
https://www.hrw.org/world-report/2016/country-chapters/africa-americas-asia-europe/central-asia-middle-east/north#.<br />
12. Monique W. Morris, Mankaprr Conteh, Melissa Harris-Perry, ?Pushout: The Criminalization of Black Girls in Schools,? (2018).<br />
13. Amanda McNelly, ?Truancy, Secure Detention, and The Right to Liberty,? Suffolk Journal of Trial & Appellate Advocacy 24 (2018 / 2019), 112.<br />
14. Barry Holman and Jason Ziedenberg, ?The Dangers of Detention: The Impact of Incarcerating Youth in Detention and Other Secure Facilities,?<br />
Justice Policy Institute, (2017).<br />
15. Ibid.<br />
16. Sawyer, 16.<br />
17. Daniel J. Gibbs, ?Status Offenses and Dejudicialization: Establishing a Right to Counsel in Informal Diversion Proceedings,? UC Davis Journal<br />
of Juvenile <strong>Law</strong> & Policy 19 (2015), 126.<br />
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The Failure of the Treatment of Low-Level Offenders in the Juvenile Justice System<br />
early nineteenth century. The first rehabilitation home for<br />
youth opened in 1824 with New York?s House of Refuge.<br />
The House gave food, shelter, and education to poor,<br />
homeless white boys. <strong>No</strong>t until 10 years later were Black<br />
children admitted to the House of Refuge, with less care<br />
and rehabilitation than that which was granted to white<br />
children. The New York House of Refuge considered the<br />
rehabilitation of Black boys a ?waste of resources and a<br />
debasement of whites.? 18 By the time these reform ideas<br />
spread to the South, slavery had ended, and convict leasing<br />
was rampant. Convict leasing was legalized slavery, where<br />
prisoners, especially Black prisoners, were lent to private<br />
parties for labor without pay. By 1890, more than 18% of<br />
all Black prisoners in the United States were juveniles.<br />
Death, torture, and abhorrent conditions were common<br />
with convict leasing, especially among youth. 19<br />
Juvenile Courts: A Discriminatory System<br />
Separate treatment for youth in criminal settings has its<br />
roots in the reformatories and settlement houses of the<br />
early nineteenth century. The first rehabilitation home for<br />
youth opened in 1824 with New York?s House of Refuge.<br />
The House gave food, shelter, and education to poor,<br />
homeless white boys. <strong>No</strong>t until 10 years later were Black<br />
children admitted to the House of Refuge, with less care<br />
and rehabilitation than that which was granted to white<br />
children. The New York House of Refuge considered the<br />
rehabilitation of Black boys a ?waste of resources and a<br />
debasement of whites.? By the time these reform ideas<br />
spread to the South, slavery had ended, and convict leasing<br />
was rampant. Convict leasing was legalized slavery, where<br />
prisoners, especially Black prisoners, were lent to private<br />
parties for labor without pay. By 1890, more than 18<br />
percent of all Black prisoners in the United States were<br />
juveniles. Death, torture, and abhorrent conditions were<br />
common with convict leasing, especially among youth.<br />
As convict leasing exploded in the postwar South,<br />
progressive reformers in the <strong>No</strong>rth known as ?child-savers?<br />
advocated for the first juvenile court system. As noted by<br />
the Supreme Court in subsequent juvenile jurisprudence,<br />
?They [child-savers] believed the society?s role was not to<br />
ascertain whether the child was ?guilty? or ?innocent,? but<br />
?What is he, how has he become what he is, and what had<br />
best be done in his interest and the interest of the state to<br />
save him from a downward career.? 20 Accordingly, to<br />
facilitate rehabilitation, juvenile courts had fewer<br />
formalities than the criminal justice system, lacking due<br />
process procedures explicitly laid out by the Bill of Rights<br />
for the accused. Juvenile courts have been distinct from the<br />
regular system since the first was established in Chicago in<br />
1899. 21 However, this conception of youth rehabilitation<br />
only applied to poor white and European immigrant youth<br />
at its inception. Purposefully excluded from this notion of<br />
rehabilitation were Black and non-white youth. A <strong>No</strong>rth<br />
Carolina juvenile court judge of the early 20th century<br />
admitted there was a ?widespread feeling? that whipping<br />
is the most effective way of handling delinquent Negro<br />
boys.? 22 This pattern of juvenile justice continued across<br />
the United States, where white, poor youth being afforded<br />
rehabilitation opportunities while Black and non-white<br />
youth were more severely punished in these informal<br />
proceedings.<br />
The Tough on Crime Era<br />
While juvenile reforms continued throughout the 1960s<br />
and 70s, the 80s and 90s brought the ?tough on crime?<br />
18. Robin Walker Sterling ?A Broken Shield: a Plea for Formality in the Juvenile Justice System,? University of Maryland <strong>Law</strong> Journal of Race,<br />
Religion, Gender and Class 13, (2013): 242.<br />
19. Ibid., 243.<br />
20. In re Gault, 387 U.S. 1, 15.<br />
21. Sterling, ?Broken Shield,? 243.<br />
22. Robin Walker Sterling, ?Fundamental Fairness: In re Gault and the Road <strong>No</strong>t Taken,? Maryland <strong>Law</strong> <strong>Review</strong> 72, (2013): 607.<br />
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The Failure of the Treatment of Low-Level Offenders in the Juvenile Justice System<br />
attitude to juvenile justice. The term ?super-predator?<br />
entered the national consciousness, which referred to ?a<br />
young juvenile criminal who is so impulsive, so<br />
remorseless, that he can kill, rape, maim, without giving a<br />
second thought.? 23 This term, coined by Princeton<br />
academic John Dilulio Jr., frenzied the white-dominated<br />
media, which warned of a "moral poverty" in Black<br />
communities. This fear brought a wave of prosecutors,<br />
judges, and politicians pledging to be tough on juvenile<br />
crime. By 1997, 17 states amended state law to rewrite the<br />
goal of juvenile justice as ?punishment, public safety, and<br />
accountability.? Currently, only three states have statutes<br />
that state the primary interest of juvenile proceedings as<br />
the best interests of the child, the original intent of the<br />
child-savers of the late 19th century. 24<br />
The effects of the ?tough on crime? era on Black and<br />
non-white youth were disastrous. Between 1983 to 1987,<br />
four out of every five children in detention were children<br />
of color. 25 The incarceration and arrest rates of youth of<br />
color and white youth continue to be disproportionate to<br />
this day, stemming from implicit bias. 26 One 1998 study<br />
found that probation officers were more likely to attribute<br />
of color being incarcerated.<br />
Status Offenses and Technical Violations<br />
While the juvenile justice system is detrimental to all<br />
youth involved, it is especially harmful to low-level<br />
offenders. These low-level offenders include those with<br />
status offenses, such as truancy, running away, and curfew<br />
violations, along with technical violations, for instance<br />
violations of probation rules. Probation rules are strict and<br />
can include compelling school attendance, following house<br />
rules, or attending meetings with probation officers. These<br />
low-level offenders are caught in a juvenile justice system<br />
that values control and detention over rehabilitation.<br />
Status offense jurisdiction of juvenile courts resulted from<br />
the supposed threat of crime from poor and immigrant<br />
youth. With the adoption of compulsory education after<br />
World War II, schools were facing an ?epidemic of juvenile<br />
delinquency? as a result of increased class size and an<br />
inability to respond to the social and cultural needs of their<br />
students. 28 This led to a rise of standardized school<br />
discipline policies, as opposed to the doctrine of in loco<br />
parentis that was dominant before World War II. In loco<br />
criminal activity to character rather than outside factors in<br />
parentis grants authority to teachers and school<br />
Black youth. Another recent study, in 2012, found that the<br />
general population was more likely to blame a juvenile<br />
defendant if that defendant was Black. 27 Because of the<br />
lack of due process rights and the informality and<br />
discretion permissible in juvenile proceedings, these<br />
implicit biases result in disproportionate numbers of youth<br />
administrators to act as parents in school and apply<br />
individualized discipline as they see fit. 29 This doctrine,<br />
which literally means ?in the place of the parent,? has its<br />
origins in 18th century England and was first judicially<br />
upheld in Gott v. Berea College (1913), stating colleges<br />
acting in loco parentis had authority over students?<br />
physical and moral welfare. 30 With new district-wide<br />
23. Priyanka Boghani, ?They Were Sentenced as ?Superpredators.?Who Were They Really?? PBS, (May 2, 2017).<br />
24. Sterling, ?Broken Shield,? 238.<br />
25. Ibid., 250.<br />
26. Sawyer.<br />
27. Ibid.<br />
28. Judith Kafka, ?Struggle for Control in the 1960s: In The History of Zero Tolerance in American Public Schooling,? New York City, New York:<br />
Palgrave Macmillan, (2011), 76-96.<br />
29. Ibid.<br />
30. Theodore C. Stamatakos, ?The Doctrine of In Loco Parentis, Tort Liability, and the Student-College Relationship,? Indiana <strong>Law</strong> <strong>Review</strong> 55,<br />
(1990), 471.<br />
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The Failure of the Treatment of Low-Level Offenders in the Juvenile Justice System<br />
standardized discipline measures, police presence in<br />
schools increased, along with referrals to juvenile courts. 31<br />
Many of these policies first took hold in large<br />
minority-concentrated urban districts. As more young men<br />
However, for the states that allow incarceration on the<br />
valid court order (VCO) exception, the incarceration rates<br />
are greatly disproportionate for youth of color. 37 The VCO<br />
exception specifically circumvents the intent of the JJDPA,<br />
of color were shepherded into the to end the incarceration of status offenders, and has led to<br />
school-to-prison-pipeline, status offenses also criminalized<br />
anti-feminine behavior in women, such as promiscuity and<br />
alcohol consumption. 32<br />
As a result of centralized discipline policies, status<br />
offenders and low-level offenders began to crowd the<br />
juvenile justice system, paving the way for the federal<br />
Juvenile Justice and Detention Prevention Act (JJDPA) of<br />
1974. This law conditions federal grant money on the<br />
removal of detention sentences for status offenses. 33 In<br />
contrast to the law's intention, the JJDPA does not<br />
eliminate the detention of status offenders. The law allows<br />
for judges to use ?valid court orders? or mandatory<br />
conditions to students who plead guilty to a status<br />
the incarceration of over 7,000 status offenders annually.<br />
In 2014, 27 states continued to use this exception, with<br />
Utah using the VCO exception to incarcerate more than<br />
2,000 juveniles in one year. 38<br />
The Department of Justice Office of Juvenile Justice and<br />
Delinquency Prevention along with the National Council<br />
of Family and Juvenile Court Judges supported the repeal<br />
of the VCO exception for decades, based on the abundance<br />
of evidence that incarceration worsens outcomes for status<br />
offenders in school completion, mental health, and future<br />
job prospects. Incarceration is also costly, with secure<br />
detention costing on average $149,000 for one child per<br />
year. 39<br />
offense. 34 These conditions can include school attendance,<br />
It was not until 2018 that the JJDPA was reauthorized with<br />
curfew, substance abuse treatment, and any other measures<br />
stricter requirements for incarceration. The 2018<br />
the court deems fit. 35 Valid court orders are enforced with<br />
reauthorization, co-sponsored by Senator Chuck Grassely<br />
the threat of incarceration for failure to comply. Most<br />
(R-IA) and Senator Sheldon Whitehouse (D-RI), caps the<br />
states lack a statutory definition for valid court orders, and<br />
incarceration of status offenders at seven consecutive days,<br />
many states do not allow judges to use valid court orders.<br />
even with a valid court order. 40 The law also recognizes the<br />
These states follow the intentions of the JJDPA, and have<br />
disproportionate number of youth of color in the juvenile<br />
deemed that the distinction between status offenders and<br />
justice system and strengthens protections for girls,<br />
delinquents must be upheld. 36<br />
31. Ibid.<br />
32. Morris et. al.<br />
33. Ibid., 115.<br />
34. Juvenile Justice and Detention Prevention Act, Pub. L. <strong>No</strong>. 93-415, 42 U.S.C. § 5601 et seq., (1974).<br />
35. ?Use of the Valid Court Order,? SOS Project, Coalition for Juvenile Justice, <strong>No</strong>vember 21, 2020,<br />
https://www.juvjustice.org/our-work/safety-opportunity-and-success-project/issue-areas/vco.<br />
36. Gibbs, 126.<br />
37. Sawyer.<br />
38. ?Use of the Valid Court Order.?<br />
39. Jeffrey A. Butts and Douglas N. Evans, ?Resolution, Reinvestment and Realignment: Three Strategies for Changing Juvenile Justice,? John Jay<br />
College of Criminal Justice, City University of New York, (2011).<br />
40. Juvenile Justice and Detention Prevention Act, Pub. L. <strong>No</strong>. 93-415, 42 U.S.C. § 5601 et seq.<br />
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especially those who have been trafficked or are victims of the goals and objectives, documenting the performance, or<br />
sexual violence. 41<br />
measuring the outcomes of probation.? 43 With confusing<br />
guidelines, subjectivity and bias are rampant. 55 percent of<br />
Like status offenses, technical violations are often<br />
all probation dispositions in 2014 involved youth of color,<br />
committed by low-risk youth who are convicted of<br />
and youth of color made up 68 percent of all youth<br />
misdemeanors. Juvenile courts use both formal and<br />
incarcerated on technical violations in 2015.<br />
informal probation to track and control delinquents without<br />
44<br />
Furthermore, probation is a deficit-based approach,<br />
detention. Formal probation is ordered by a judge after<br />
meaning it highlights the failures of youth without room<br />
conviction, where the youth is to be supervised by a<br />
for growth or acknowledgement of circumstances. Many<br />
probation officer. Informal probation occurs in pre-court<br />
juvenile crimes, like many crimes in general, are related to<br />
diversion programs, where youth are still monitored, but<br />
institutional or outside failures: lack of school resources,<br />
without a formal court appearance. Both formal and<br />
unsafe communities, abuse, and many other factors beyond<br />
informal probation violations can lead to incarceration if<br />
the child?s control. In some states, the average probation<br />
youth do not comply with rules, which can include<br />
period is 12 months, meaning one full year of a child?s<br />
anything from skipping school, missing a probation officer<br />
development is spent under strict supervision.<br />
meeting, or not complying with a parent?s house rules.<br />
45<br />
Incarceration is Detrimental for Juveniles<br />
Those incarcerated because of a probation violation make<br />
up 15 percent of juveniles in secure detention or Juvenile detention is harmful for brain development,<br />
out-of-home placement. 42 Just as with status offenses, mental health, and the socialization of youth. Incarcerated<br />
detention is often counterproductive and increases the youth have suicidal rates quadruple that of other youth,<br />
probability of recidivism. While probation may have the and 18 percent of incarcerated youth have depressive<br />
well-meaning intention of rehabilitating youth, it imposes disorders, compared to 4 percent of all youth. 46<br />
strict rules while providing little support.<br />
Incarcerated youth are also more likely to have substance<br />
abuse disorders, and are at greater risk for self harm.<br />
Probation fails to provide rehabilitation or forgiveness to<br />
47<br />
These numbers provide a staggeringly negative picture of<br />
youth. Probation?s failure is partly due to a lack of<br />
juvenile detention in which the children most at risk for<br />
uniformity among states, or even among officers of the<br />
mental health crises are more likely to be incarcerated.<br />
same jurisdiction. As the National Center for Juvenile<br />
These youth are funneled from their communities into<br />
Justice stated, ?nobody is given responsibility for stating<br />
secure detention centers, which often lack basic mental<br />
41. Act 4 Justice Juvenile Justice, ?Overview of the Juvenile Justice Reform Act of 2018,? National Juvenile Justice and Delinquency Prevention<br />
Coalition, (December 2018),<br />
http://www.act4jj.org/sites/default/files/resource-files/JJDPA%20Reauthorization%20Summary%20December%202018.pdf, 2.<br />
42. Sawyer.<br />
43. Patricia Torbet and Patrick Griffin, ?Desktop guide to good juvenile probation practice,? National Center for Juvenile Justice, (2002),<br />
www.ncjj.org/Publication/Desktop-Guide-to-Good-Juvenile-Probation-Practice.aspx.<br />
44. Annie E. Casey Foundation, ?Progress Accelerates for Eliminating Confinement as a Response to Juvenile Probation Violations,? (February 26,<br />
2019).<br />
45. Ibid.<br />
46. McNelly, 117.<br />
47. Vidhya Ananthakrishnan and Mahsa Jafarian, ?Just Kids: When Misbehaving Is a Crime,? Vera Institute, (August 16, 2017),<br />
https://www.vera.org/when-misbehaving-is-a-crime.<br />
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resources. 48<br />
including different common spaces. This is to prevent<br />
children from abuse and physical assault by adults.<br />
<strong>No</strong>t only is detention detrimental for youths?mental health,<br />
Similarly, placing low-risk juveniles in detention exposes<br />
it is also ineffective for rehabilitation. There is no greater<br />
youth to others who have committed actual violent<br />
predictor of future incarceration than previous detention,<br />
even as compared to gang membership, weapons, or a poor<br />
parental relationship. 49 Detention inherently pulls youth<br />
crimes. 56 These interactions may be a strong factor of<br />
increased recidivism rates. 57<br />
further into both the juvenile and later criminal justice Overall, incarceration is costly and ineffective<br />
system. A study found that the incarceration of juveniles<br />
for truancy had no effect on later school attendance. 50<br />
Detained juveniles, who do not re-offend and have no<br />
subsequent interaction with the criminal justice system, are<br />
still up to 40 percent less likely to graduate, and have<br />
reduced success in future earnings. 51 52 Exposure to<br />
juvenile court, even without incarceration, increases crime<br />
rates in young adulthood threefold. 53<br />
rehabilitation, especially for low-level offenders. However,<br />
with the rise of school shootings, zero-tolerance policies,<br />
and the hysteria of juvenile superpredators, every state has<br />
changed their laws in some way to make it easier to<br />
incarcerate youth in the last 30 years. 58 Despite the<br />
abundance of research against and the cost of juvenile<br />
detention, more than 48,000 youth are currently confined<br />
in facilities away from home. 59<br />
While detention is detrimental for all youth, the risk is<br />
greatest for youth incarcerated for status offenses and<br />
technical violations. A meta-analysis of risk in juvenile<br />
detention found that intensive supervision had no effect on<br />
rehabilitation and increased recidivism rates for some low<br />
risk offenders. 54 This can be explained through the same<br />
logic of sight and sound separation for juvenile offenders.<br />
Sight and sound separation requires juveniles placed in<br />
adult jails or prisons to be separated by ?sight and sound,?<br />
Informal and Flexible Procedures<br />
The child-savers assumed that the government would have<br />
the best interests of youth in mind. Therefore, due process<br />
protections were not extended to juvenile delinquency<br />
proceedings, which were considered civil instead of<br />
criminal proceedings.<br />
In 1967, President Lyndon Johnson?s Commission on <strong>Law</strong><br />
Enforcement and Administration of Justice released a<br />
48. Rani A. Desai et al., "Mental Health Care in Juvenile Detention Facilities: A <strong>Review</strong>." Journal of the American Academy of Psychiatry and the<br />
<strong>Law</strong> Online 34 (June 2006): 204.<br />
49. Holman and Ziedenberg.<br />
50. Dean Hill Rivkin, ?Truancy Prosecutions of Students and the Right [to] Education,? Duke Forum for <strong>Law</strong> & Social Change, (2011), 139-161.<br />
51. John Whibey, ?Juvenile incarceration and its impact on high school graduation rates and adult jail time,? Journalist?s <strong>Review</strong>, (2015).<br />
52. Holman and Ziedenberg.<br />
53. Uberto Gatti, et al., ?Effects of juvenile court exposure on crime in young adulthood.? Journal of Child Psychology and Psychiatry, vol. 54, no. 3,<br />
(2013), 291-297.<br />
54. Edward J. Latessa and Christopher T. Lowenkamp, ?Understanding the Risk PrincipleL How and Why Correctional Interventions Can Harm<br />
Low-Risk Offenders,? Topics in Community Corrections, (2004).<br />
55. The Coalition for Juvenile Justice, ?Sight and Sound Separation,?<br />
https://www.juvjustice.org/juvenile-justice-and-delinquency-prevention-act/sight-and-sound-separation.<br />
56. Latessa and Lowenkamp.<br />
57. McNelly, 117.<br />
58. Holman and Ziedenberg.<br />
59. Sawyer.<br />
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report that included unprecedented research on the juvenile<br />
justice system. 60 The report detailed the failures of the<br />
juvenile justice system, stating, ?the great hopes originally<br />
held for the juvenile court have not been fulfilled. It has<br />
due process and fair treatment. The Court went further to<br />
detail four specific protections that juvenile courts must<br />
provide when there is a possibility of incarceration:<br />
adequate written notice of charges, a right to counsel,<br />
not succeeded significantly in rehabilitating delinquent privilege against self-incrimination, and<br />
youth, in reducing or even stemming the tide of<br />
delinquency, or in bringing justice and compassion to the<br />
cross-examination.<br />
Justice Fortas?opinion outlined the unfruitful intentions of<br />
child offender.? 61 Among the failures detailed in the report,<br />
the progressive child-savers to create an informal, flexible<br />
a study discovered half of juvenile court judges had no<br />
court environment for juveniles. Justice Fortas wrote,<br />
undergraduate degree, hearings often lasted no longer than<br />
?juvenile court history has again demonstrated that<br />
10 minutes per child, and half of judges did not have<br />
unbridled discretion, however benevolently motivated, is<br />
access to a psychologist or psychiatrist to diagnose and<br />
frequently a poor substitute for principle and procedure.? 64<br />
assist in treatment plans for children. 62 The report also<br />
The Court stated the Fifth Amendment privilege against<br />
noted that youth face the same retribution and punitive<br />
self-incrimination is ?unequivocal and without exception,?<br />
approaches of adult courts but without the same due<br />
and therefore applies to juvenile courts through the<br />
process protections. 63<br />
Fourteenth Amendment. 65<br />
The case that changed the landscape of due process<br />
In re Gault reversed and remanded the Arizona Supreme<br />
protections in juvenile courts, In re Gault (1967), came in<br />
Court on the grounds of due process. The Arizona<br />
the same decade as the Presidential Commission report.<br />
Supreme Court upheld the detention of Gault until he was<br />
The question before the Supreme Court in Gault regarded<br />
21. <strong>No</strong>tably missing from this argument was any Equal<br />
the precise due process requirements in juvenile<br />
Protection standard for juveniles, which would entail that<br />
delinquency proceedings. The case concerned 15-year-old<br />
any citizen, regardless of age, deserves equal protection<br />
Gerald Gault who was committed to juvenile detention<br />
under the law. In a memorable line, Justice Fortas stated<br />
until he was 21 for making a lewd phone call while on<br />
?under our Constitution, the condition of being a boy does<br />
probation. In his proceedings, Gault was not notified of his<br />
not justify a kangaroo court?. 66 <strong>No</strong>tably missing from this<br />
right to remain silent, not given adequate notice to prepare<br />
argument was any Equal Protection standard for juveniles,<br />
a defense or access to an attorney, and was denied the<br />
which would entail that any citizen, regardless of age,<br />
rights of confrontation and cross-examination. The<br />
deserves equal protection under the law.<br />
neighbor to whom he made the lewd phone call was never<br />
called to testify. Justice Fortas?majority opinion held that<br />
states? juvenile delinquency proceedings (those that may<br />
result in incarceration) must measure up to the essentials of<br />
The Court extended further due process protections to<br />
juvenile court proceedings in 1970 with In re Winship, 397<br />
US 358. In New York State, a 12 year old boy was<br />
60. Cheryl Corley, ?President Johnson?s Crime Commission Report, 50 Years Later,? National Public Radio, (2017).<br />
61. President?s Commission on <strong>Law</strong> Enforcement and Administration of Justice, "The Challenge of Crime in a Free Society" (Washington, D.C.,<br />
United States Government Printing Office: 1967), 80.<br />
62. Ibid., 80.<br />
63. Ibid., 82.<br />
64. In re Gault, 387 U.S. 1, 18.<br />
65. Ibid., 47.<br />
66. In re Gault, 387 U.S. 1, 28.<br />
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detained for stealing money from a women?s locker room.<br />
The judge used the standard of proof applicable in civil<br />
cases, as established by Section 744(b) of the New York<br />
Family Court Act, which is lower than ?beyond a<br />
reasonable doubt? required in criminal trials. The US<br />
Supreme Court declared the New York Family Court<br />
statute unconstitutional, requiring the standard of proof<br />
beyond a reasonable doubt in the adjudicatory stage of<br />
juvenile delinquency proceedings.<br />
The central argument on behalf of the State was that<br />
juvenile delinquency cases operated as civil cases and thus<br />
did not require the full protections of criminal cases,<br />
including the higher standard of proof. However, as the<br />
Court had decided in In re Gault, juvenile delinquency<br />
cases are considered civil as a "label of convenience" and<br />
the proceedings are entitled to the essentials of due process<br />
and fair treatment. Justice Brennan, writing for a<br />
five-member majority of the Court, said ?civil labels and<br />
good intentions do not themselves obviate the need for<br />
criminal due process safeguards in juvenile courts.? 67 The<br />
charged with a misdemeanor and placed on probation and<br />
the other detained after a felony conviction. In both cases,<br />
the judge denied the defendants a trial by jury. The <strong>No</strong>rth<br />
Carolina cases involved a group of 46 children, aged 11 to<br />
15, who were charged with various misdemeanors after a<br />
planned demonstration protesting a school consolidation<br />
plan. All these juveniles were also denied a trial by jury<br />
and a public trial.<br />
The Court ruled the due process clause of the Fourteenth<br />
Amendment did not grant the right to jury trial in state<br />
juvenile court delinquency proceedings. The opinion,<br />
written by Justice Harry Blackmun and joined by three<br />
other members of the Court, detailed that with In re Gault<br />
and In re Winship, the Court attempted to give procedural<br />
orderliness to the juvenile courts, while maintaining the<br />
atmosphere of flexibility, individuality, and rehabilitation.<br />
The Court stated mandating jury trials in the juvenile<br />
system would remake the courts into a "fully adversary<br />
process," against the founding principles of a separate<br />
juvenile court system. 69<br />
Court argued that these protections were constitutionally<br />
The appellants argued the proceedings were ?substantially<br />
necessary for the juvenile courts and would not<br />
similar?to a criminal trial, and therefore should be afforded<br />
compromise the confidentiality, informality, and flexibility<br />
the same due process protections granted in criminal trials.<br />
needed in juvenile proceedings. 68<br />
With the Court on a trend of increasing due process rights<br />
for juvenile courts, McKeiver et al. v. Pennsylvania (1971)<br />
marked the end of due process right expansions for<br />
juvenile proceedings. McKeiver combined two writs of<br />
certiorari, one from the state Supreme Court of<br />
Pennsylvania and the other from the state Supreme Court<br />
of <strong>No</strong>rth Carolina, to determine whether the due process<br />
clause gave the right to trial by jury for juvenile<br />
However, the Court disagreed, stating that the jury trial<br />
would not remedy the defects previously outlined in the<br />
juvenile justice system, both by the Court in Gault and<br />
through President Lyndon Johnson?s Commission on <strong>Law</strong><br />
Enforcement and Administration of Justice report, which<br />
the Court cited in its opinion. On the contrary, the Court<br />
argued, a jury trial would not lend to the fact-finding<br />
function of the court, and the juvenile court system was<br />
still entitled to different functions, related to rehabilitative<br />
delinquency proceedings. The Pennsylvania cases goals, than criminal trials. 70<br />
concerned two boys, aged 15 and 16, one of whom was<br />
66. In re Gault, 387 U.S. 1, 28.<br />
67. In re Winship, 397 U.S. 366.<br />
68. Ibid.<br />
69. In re Winship, 397 U.S. 366, 545.<br />
70. McKeiver v. Pennsylvania, 403 U.S. 543.<br />
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Limited due process protections were only extended to<br />
juvenile adjudicatory hearings and not other areas of the<br />
system like pre-court diversion. The removal of low-level<br />
offenses from formal court is favorable for youth<br />
outcomes, but the informality of pre-court diversions<br />
creates spaces where due process protections are not<br />
guaranteed. Some pre-court diversions are mandatory,<br />
?Families in Need of Services? and allocates oversight to<br />
the Department of Juvenile Justice and the vast non-profit<br />
Florida Network of Youth and Family Services. Florida has<br />
a weaker standard for petition to court but still mandates<br />
diversion or refusal of services before reaching family<br />
court. However, in both Florida and New York, as with all<br />
pre-court diversion programs, there is no right for youth to<br />
while others are not. Diversions often include appoint counsel if they cannot afford one. 75<br />
conversations with social services, mediators, or<br />
These procedures show the extensiveness of pre-court<br />
transformative justice coordinators. However, if pre-court<br />
diversion and the decisions made before a child steps into<br />
diversion fails, information from informal conferences<br />
the courtroom. While statements made in diversion cannot<br />
may be used by the court in depositions or sentencing. This<br />
be admitted prior to a conviction or fact-finding stage,<br />
possibility is often unclear to the family or child, who will<br />
these statements can be used in sentencing and disposition<br />
in turn unknowingly divulge incriminating information. 71<br />
hearings. 76 Further, although attorneys are not banned from<br />
This is contrary to the Fifth Amendment principle of the<br />
pre-court diversion proceedings, they are not provided.<br />
right against self-incrimination and sworn testimony,<br />
Since the majority of low-level offenders come from<br />
which was formerly applied to juvenile proceedings by the<br />
low-income families, the possibility of obtaining an<br />
Supreme Court in In re Gault. 72<br />
attorney without public assistance is minimal. 77<br />
Two pre-court diversion programs are in New<br />
Attorneys can be useful advocates for the child in informal<br />
York State and Florida. New York State classifies status<br />
proceedings. They can advocate for more diversion<br />
offenders as Persons In Need of Supervision (PINS),<br />
services to avoid formal proceedings, hold the court<br />
which includes status offenders or anyone who is<br />
accountable to due process rights, and suppress evidence<br />
?incorrigible, ungovernable, or habitually disobedient.? 73<br />
from fact-finding stages that may be prejudicial. Without a<br />
Under pre-court diversion, different agencies coordinate<br />
trained professional, a child and his or her family may not<br />
services and may attempt different intervention strategies<br />
know their rights that are at risk of being violated in<br />
(counseling, home-visits, etc.). For the youth to enter<br />
informal proceedings. Especially since many diversion or<br />
formally into family court, a petition must be filed by the<br />
probation programs require excessive surveillance, an<br />
lead social service agency attesting that ?all other options<br />
attorney may be able to advocate for reduced and more<br />
have been exhausted? and ?diligent efforts? were made. 74<br />
The state of Florida labels these same children as<br />
realistic requirements for the child. 78 Otherwise, a child or<br />
family may feel pressured to agree to all terms of probation<br />
71. Claire Shubik and Jessica Kendall, ?Rethinking Juvenile Status Offense <strong>Law</strong>s: Considerations for Congressional <strong>Review</strong> of the Juvenile Justice<br />
and Delinquency Prevention Act,? Family Court <strong>Review</strong> 45 (July 2007): 384.<br />
72. In re Gault, 387 US 1.<br />
73. N.Y. Fam. Ct. Act §711-784.<br />
74 N.Y. Fam. Ct. Act § 735(g)(ii).<br />
75. Gibbs, 143.<br />
76. Ibid., 141.<br />
77. Ananthakrishnan and Jafarian.<br />
78. Gibbs, 144.<br />
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or diversion without understanding what is realistic for the<br />
situation. When unrealistic probation rules are put in place,<br />
and a child violates these rules, they can be forced into<br />
detention. An effective attorney advocate will understand<br />
these risks and navigate fair probationary and diversion<br />
programs.<br />
As established by In re Gault, the right to counsel is<br />
status, and other information to inform the judge. Without<br />
adequate time and investment in the child, incarceration<br />
may be used when a less restrictive and expensive option<br />
would be sufficient, like therapy or substance abuse<br />
treatment.<br />
A joint report from the Institute for Judicial Administration<br />
and American Bar Association advised counsel to be<br />
granted to juveniles when facing the possibility of present for juveniles from pretrial hearings to<br />
incarceration. 79 However, in many states, it is legal for<br />
children, or guardians, to waive the right to counsel for the<br />
child in juvenile hearings. In Ohio, a recent report by the<br />
National Juvenile Defender Center found that 80 percent of<br />
children accused of criminal wrongdoing were not<br />
represented by an attorney. 80 Many youth and their<br />
guardians may not understand the prospect of ?waiving?the<br />
right. In a study of competence to stand trial, youth were<br />
more likely to make choices deferring to authority, like<br />
accepting harsh probation standards or detention. 81<br />
post-disposition through the Juvenile Justice Standards<br />
(IJA-ABA, 1980). However, there are many barriers in<br />
accessing counsel in juvenile proceedings. Many states<br />
have no formal system to provide counsel, which gives<br />
discretion for judges to appoint counsel when available.<br />
Furthermore, since youth detention hearings occur only 24<br />
hours after an arrest, an attorney is often not appointed<br />
until the adjudication. This can result in children in<br />
pre-trial detention when they have never even met with an<br />
attorney.<br />
The waiver of attorneys is significant? as many as 90<br />
percent of adjudication hearings result in a plea bargain. 82<br />
Without adequate counsel, a child may not fully<br />
understand the plea bargain or the alternatives to accepting<br />
the bargain. By making uninformed decisions, and being<br />
influenced by a deference to authority, children are at risk<br />
for punishment and incarceration by a punitive system.<br />
Furthermore, In re Gault and subsequent cases only<br />
established a right to counsel at adjudication hearings, but<br />
disposition and post-disposition hearings are equally<br />
important for juveniles. Counsel at disposition hearings,<br />
where the court decides any placement or sanctions, can<br />
advocate for the child by presenting letters of support from<br />
the community, medical information, special education<br />
Due to these barriers, some youth may choose to waive<br />
their right to an attorney to be released from pre-trial<br />
detention. In Georgia, where bail can be set at $2,500 or<br />
more, many parents or children waive counsel to have an<br />
earlier hearing date. 83 In many states, youth can sign a<br />
waiver form without a guardian present and without first<br />
speaking to an attorney. 84 Further, even when public<br />
defenders are provided, they are often strapped with high<br />
caseloads and are therefore unable to use the total range of<br />
motions and investigations to defend their clients. 85<br />
Juvenile courts have a long way to go to ensure every child<br />
is given adequate counsel, as mandated by the<br />
Constitution.<br />
79. In re Gault, 387 US 1, 34.<br />
80. Judith B. Jones, ?Access to Counsel,? Juvenile Justice Bulletin: Office of Juvenile Justice and Delinquency Prevention, (2004), 8.<br />
81. Thomas Grisso et al., ?Juveniles?Competence to Stand Trial: A Comparison of Adolescents?and Adults?Capacities as Trial Defendants,? <strong>Law</strong><br />
and Human Behavior 27, no. 4, (Aug. 2003): 333-363.<br />
82. Jones, 2.<br />
83. Ibid., 8.<br />
84. Ibid.<br />
85. Ibid., 19.<br />
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The Failure of the Treatment of Low-Level Offenders in the Juvenile Justice System<br />
The juvenile justice system is built on the idea of parens<br />
patriae, which, with origins in 14th century Chancery<br />
courts, vests in loco parentis power to the state. 86 In Schall<br />
Based on the risk principle, offenders should be provided<br />
with supervision and treatment that correspond with their<br />
probability of re-offending. In juvenile detention, low-risk<br />
v. Martin (1984), a case which affirmed the offenders, like status offenders or technical violators, are<br />
constitutionality of pre-trial detention of juveniles, the<br />
Court assumes a lesser liberty interest in children than<br />
adults because ?the juvenile?s liberty interest may, in<br />
appropriate circumstances, be subordinated to the State?s<br />
?parens patriae? interest in preserving and promoting the<br />
welfare of the child.? 87 Based on this interest, the Court<br />
aimed to strike a balance between the informality and<br />
flexibility of juvenile courts while providing the<br />
?fundamental fairness? demanded by due process in In re<br />
Winship.<br />
This parens patriae interest in the welfare of the child has<br />
not come to fruition for many children within the juvenile<br />
court system, especially the thousands of youth detained<br />
and incarcerated for low-level offenses. Detention is<br />
proven to be the least effective deterrent for later juvenile<br />
delinquency of all other methods of rehabilitation. Studies<br />
have found programs that include counseling and treatment<br />
to youth reduce recidivism and improve outcomes, while<br />
detention or programs that emphasize supervision tend to<br />
increase recidivism. 88 There are many other alternatives to<br />
detention and probation that are less restrictive and have<br />
better results in recidivism and rehabilitation, including<br />
restorative justice conferences, individualized counseling<br />
and social services, or even ?warn and releases?that leave<br />
the child without any record. 89 For example, cognitive<br />
behavioral therapy, one method of counseling for youth,<br />
mixed with high risk offenders who commit serious violent<br />
crimes or multiple serious misdemeanors. This leads to<br />
disruption for low-risk offenders; they are separated from<br />
families and communities and placed with anti-social and<br />
potentially violent youth. 91 Even the formal processing of<br />
juveniles in court, regardless of court outcomes, can lead<br />
to higher rates of future violent and nonviolent crime. 92<br />
The very institution whose mission is ?rehabilitation?may<br />
cause increased involvement in criminal activity.<br />
<strong>No</strong>t only is detention ineffective for decreasing recidivism,<br />
the effects of secure detention and out-of-home placements<br />
on youth are detrimental. Detention centers lack mental<br />
health treatment, substance abuse treatment, and even<br />
adequate educational services. Most alarmingly, three out<br />
of every ten youth confined in the United States has<br />
attempted suicide before. These youth are abandoned and<br />
placed in dire, unhealthy circumstances. 93 For such<br />
low-level, and frequently first time, offenders who pose<br />
low public safety risks, it begs the question: how can the<br />
state continue to justify their parens patriae interest over<br />
these children?s lives? <strong>No</strong>t only does detention have severe<br />
consequences for youth and families, detention itself<br />
hinders the facilitation of the state?s interest in the<br />
rehabilitation of youth to productive, full members of<br />
society.<br />
As Judge Fortas said, ?there is evidence, in fact, that there<br />
was shown to decrease recidivism rates by 26 percent. 90<br />
86. Douglas Rendleman, ?Parens Patriae: From Chancery to the Juvenile Court,? South Carolina <strong>Law</strong> <strong>Review</strong> 23, (1971): 205?260.<br />
87. Schall v. Martin, 467 US 253, 265 (1984).<br />
88. The Annie E. Casey Foundation.<br />
89. Ibid.<br />
90. Richard A. Mendel, ?<strong>No</strong> Place For Kids: The Case for Reducing Incarceration,? (2011), The Annie E. Casey Foundation,<br />
http://www.aecf.org/m/resourcedoc/aecf-<strong>No</strong>PlaceForKidsFullReport-2011.pdf.<br />
91.Latessa and Lowenkamp.<br />
92. Gatti et al., 291-297.<br />
93. Mendel, 22.<br />
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The Failure of the Treatment of Low-Level Offenders in the Juvenile Justice System<br />
may be grounds for concern that the child receives the<br />
worst of both worlds: that he gets neither the protections<br />
accorded to adults nor the solicitous care and regenerative<br />
treatment postulated for children.? 94 The children in the<br />
juvenile justice system are exposed to the worst of both<br />
worlds, and will continue to be harmed in this system until<br />
low-level offenses are removed from the jurisdiction of<br />
these ?kangaroo courts?altogether, and placed instead into<br />
the care of the community.<br />
strategies that effectively rehabilitate status offenders,<br />
instead of involving a court system that is proven to<br />
increase future criminality. Community-based programs,<br />
that center the family and provide group therapy, have<br />
consistently improved outcomes for juveniles, both<br />
empirically and in observed changes. These methods are<br />
also cost-effective for the state and follow the founding<br />
principle of juvenile justice: rehabilitation.<br />
While more procedural protections, zealous attorney<br />
Conclusion<br />
advocacy for children, and rehabilitative-minded<br />
approaches can incrementally fix problems in the juvenile<br />
In <strong>No</strong>vember 2020, 50 prosecutors and 90 current and<br />
justice system, these solutions can not override the<br />
former probation officers issued a joint statement with the<br />
discriminatory and punitive founding of the juvenile<br />
organization EXiT (Executives Transforming Probation<br />
justice system. Children who have been stripped of their<br />
and Parole) calling to end incarceration for technical<br />
liberty do not feel rehabilitated. Justice Fortas feared<br />
probation violations, downsize probation, and make<br />
supervision more individualized and goal-orientated.? 95 children were receiving the ?worst of both worlds? within<br />
the juvenile justice system, and more than 50 years later,<br />
Even those most intimately involved in this surveillance<br />
his warning still rings true.<br />
system, prosecutors and probation officers, recognize that<br />
this two billion dollar system has gone too far. While a<br />
step in the right direction, reforms in the juvenile justice<br />
system have not fixed a system broken from inception. The<br />
failure of the juvenile justice system reaches farther<br />
beyond an overzealous probation system and the<br />
incarceration of low-level offenses for crimes better<br />
handled by community rehabilitation. The largest failure of<br />
the juvenile justice system is its systemic robbing of liberty<br />
from children. Instead of protection and benevolent<br />
rehabilitation, children are robbed of their liberty and due<br />
process in the name of control and punishment.<br />
Through state statute, the jurisdiction over status offenders<br />
can be removed from juvenile or family courts and placed<br />
in social services. By ending juvenile jurisdiction over<br />
status offenders, officials will be forced to reexamine<br />
social services, community interventions and other<br />
programs that play a role in the rehabilitation of these<br />
youth. This can encourage investment in community-based<br />
94. Kent v. United States, 383 U.S. 556, (1966).<br />
95. Miriam A. Krinsky and Vincent Schiraldi, ?Community supervision, once intended to help offenders, contributes more to mass incarceration,?<br />
USA Today, <strong>No</strong>vember 19, 2020.<br />
<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />
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TARGETING MUSLIMS AND CIVIL<br />
LIBERTIES PREVENTION:<br />
AN ANALYSIS OF THE<br />
COUNTERING VIOLENT<br />
EXTREMISM PROGRAM?S FIRST<br />
AMENDMENT VIOLATIONS<br />
Luqmaan Bokhary<br />
ABSTRACT<br />
The post-9/11 world has ushered in a growing infatuation with securitization and counterterrorism programs, much of<br />
which have blatantly targeted and infringed upon the rights of Muslim communities in the United States. In 2011,<br />
President Obama announced the creation of the Countering Violent Extremism Task Force, a counterterrorism program,<br />
housed in the U.S. Department of Homeland Security and the Department of Justice, dedicated to preventing violent<br />
extremists and their supporters from further aiding extremist groups and ideology. Countering Violent Extremism<br />
programs sought to use community engagement and partnerships with law enforcement and government agencies to<br />
expand surveillance and intelligence gathering capabilities on Muslim communities. In this paper, I argue that the<br />
Countering Violent Extremism program is unconstitutional on three grounds: it infringes on the freedom of speech of<br />
Muslims, it burdens their free exercise of religion, and it discriminates against them on the basis of religion, thereby<br />
violating the Establishment Clause.<br />
<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />
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Targeting Muslims and Civil Liberties Prevention:<br />
An Analysis of the Countering Violent Extremism Program?s First Amendment Violations<br />
Introduction<br />
CVE seeks to prevent the proliferation of extremist<br />
ideologies; though previous programs have shared this<br />
American Muslims have borne the brunt of measures taken<br />
aim, CVE was the first to do so as an explicit part of its<br />
by federal, state, and local governments and law<br />
strategy. All of these approaches taken in the name of<br />
enforcement agencies aimed at preserving and advancing<br />
national security in the post-9/11 era are unconstitutional,<br />
national security in the aftermath of the 9/11 attacks. The<br />
as evidenced by both their strategic frameworks and their<br />
passage of the USA PATRIOT Act in 2001 was an<br />
effects on Muslim communities.<br />
inflection point in increasing securitization. Granting law<br />
enforcement agencies the authorization to enhance their This article will elucidate the deficiencies in the<br />
surveillance capabilities became the impetus for constitutionality of the CVE program. The first section<br />
ever-expanding counterterror programs.<br />
provides a brief history of the CVE, including an outline of<br />
the three pilot programs in Boston, Los Angeles, and<br />
These programs included divisions for research into the<br />
Minneapolis, and characterizes the prominent<br />
causes of terrorism itself. The prevailing theories on terror<br />
radicalization theories underpinning CVE programs,<br />
advanced by research analysts at the FBI and NYPD<br />
highlighting the central premise: an assumed causal<br />
identified adherence to Salafism or ?jihadi? interpretations<br />
relationship between adherence to Islam and participation<br />
of Islam as the primary precursors to extremist violence.<br />
in violent extremism. The second section, in reviewing<br />
These radicalization theories, coupled with new capacities<br />
three relevant Supreme Court cases, addresses the<br />
as a result of expanded security apparatuses, led to<br />
unconstitutionality of the CVE program based on its<br />
unprecedented intelligence gathering programs, both overt<br />
violation of freedom of speech under the First<br />
and covert. The National Security Entry-Exit Registration<br />
Amendment. The third section analyzes whether the<br />
System required male non-citizens entering the United<br />
targeting of entire Muslim communities by the CVE<br />
States from Muslim-majority countries to register with<br />
programs can meet the strict scrutiny standard for<br />
their local Immigration and Customs Enforcement office in<br />
burdening freedom of religion, a right protected by the<br />
an effort to track ?potential terrorists.? The NYPD Muslim<br />
First Amendment. The fourth section considers whether<br />
Surveillance Program recruited and supervised thousands<br />
the CVE program, motivated by blatant anti-Muslim<br />
of informants engaged in ?warrantless, blanket<br />
animus, violates the prohibition against the establishment<br />
surveillance of Muslim communities? in New York City,<br />
Pennsylvania, New Jersey, and parts of Connecticut. 1 of an official religion set forth in the First Amendment.<br />
This<br />
The article concludes that the CVE program is<br />
information gathering on supposed ?centers of terrorism?<br />
unconstitutional in all three regards? infringing on<br />
furthered de facto criminalization and created an air of<br />
freedom of speech, burdening the free exercise of religion,<br />
suspicion toward Muslim communities.<br />
and discriminating against American Muslims on the basis<br />
It is in the context of enhanced surveillance and<br />
of religion.<br />
counterterrorism efforts in the post-9/11 era that the<br />
Countering Violent Extremism (CVE) Task Force arose. It<br />
can be distinguished from previous programs by two main<br />
characteristics. First, instead of unilateral action on the part<br />
of government and law enforcement, CVE seeks to work<br />
with community partners to combat extremism. Second,<br />
Countering Violent Extremism Task Force<br />
The Countering Violent Extremism Task Force is a<br />
program, housed in the Department of Justice and the<br />
Department of Homeland Security, that was unveiled by<br />
the Obama administration in August 2011 with the purpose<br />
1. Asad Dandia, ?Bloomberg?s NYPD Spied On Me For Being Muslim. He Has Never Apologized,? Washington Post, February 20, 2020.<br />
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Targeting Muslims and Civil Liberties Prevention:<br />
An Analysis of the Countering Violent Extremism Program?s First Amendment Violations<br />
of ?preventing violent extremists and their supporters<br />
from inspiring, radicalizing, financing or recruiting<br />
individuals or groups in the United States to commit acts<br />
?supplement law enforcement counterterrorism tactics<br />
such as surveillance, investigations, and prosecutions with<br />
a secondary set of prevention measures.? 8<br />
of violence.? 2 The White House makes it explicitly clear<br />
These programs can broadly be categorized into three<br />
that the CVE program intends to ?address the conditions<br />
groups: initiatives focused on finding ?extremist?<br />
and reduce the factors that most likely contribute to<br />
American Muslims, programs to fund social services to<br />
recruitment and radicalization by violent extremists,?<br />
American Muslims, and messaging that the government<br />
establishing itself firmly as a preventative program. 3 For<br />
believes will counter ISIS and other ?extremist?<br />
the purposes of CVE?s goals, violent extremists are defined<br />
propaganda. 9 The underlying theory behind such programs<br />
as ?individuals who support or commit<br />
is that there are distinct signs or criteria that lead people to<br />
ideologically-motivated violence to further political<br />
commit extremist violence, whether it is identifying with<br />
goals.? 4<br />
The CVE Task Force lays out three priority action areas:<br />
?(1) enhancing engagement with and support to local<br />
?extremist ideology,? facing social and/or economic<br />
hardships, and/or exhibiting unusual behavior patterns or<br />
alienation. The programs CVE funds are meant to root out,<br />
communities; (2) building government and law identify, and prevent such behaviors and ideologies.<br />
enforcement expertise for preventing violent extremism;<br />
Pilot Programs: Boston, Los Angeles, and<br />
and (3) countering violent extremist propaganda while<br />
Minneapolis<br />
promoting our ideals.? 5 At the national level, CVE seeks to<br />
direct federal departments and agencies to advance<br />
initiatives that enable CVE programs by means of funding<br />
research, disseminating best practices, issuing grants, and<br />
building partnerships with non-government stakeholders. 6<br />
At the local level, CVE efforts are meant to integrate ?into<br />
existing programs or overall public safety strategies? in<br />
collaboration with ?state and local authorities, U.S.<br />
Attorneys? offices, and other Federal agencies.? 7 In<br />
essence, these local CVE programs are meant to<br />
In September 2014, the U.S. Department of Justice<br />
established pilot CVE programs in Boston, Los Angeles,<br />
and Minneapolis. Each city?s program developed their own<br />
unique frameworks and priorities and were executed by the<br />
local U.S. Attorneys?offices. In implementing the Boston<br />
pilot program, the U.S. Attorney for the District of<br />
Massachusetts (USAO-MA) identified alienation among<br />
young people, encountering extremist propaganda over<br />
social media, and anger/frustration on U.S. foreign policy<br />
2. Executive Office of the President, Strategic Implementation Plan for Empowering Local Partners to Prevent Violent Extremism in the United<br />
States (Washington, D.C., 2011), 1, https://obamawhitehouse.archives.gov/sites/default/files/sip-final.pdf.<br />
3. Executive Office of the President, Strategic Implementation Plan for Empowering Local Partners to Prevent Violent Extremism in the United<br />
States (Washington, D.C., 2016), 2,<br />
https://www.dhs.gov/sites/default/files/publications/2016_strategic_implementation_plan_empowering_local_partners_prev.pdf.<br />
4. Ibid, 1.<br />
5. Ibid, 2.<br />
6. Ibid, 11.<br />
7. Ibid.<br />
8. Faiza Patel and Meghan Koushik, Countering Violent Extremism (New York: Brennan Center for Justice at New York University, 2017), 1-2,<br />
https://www.brennancenter.org/sites/default/files/publications/Brennan%20Center%20CVE%20Report.pdf.<br />
9. Ibid.<br />
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Targeting Muslims and Civil Liberties Prevention:<br />
An Analysis of the Countering Violent Extremism Program?s First Amendment Violations<br />
violence. 10 11 12 USAO-MA?s framework emphasizes<br />
partnerships between law enforcement, federal agencies,<br />
and community organizations to combat terrorism by<br />
conducting trainings with community organizations on<br />
radicalization theories and sharing intelligence. 13<br />
program sought to prevent violent extremism primarily<br />
among the Somali community. The Minneapolis CVE<br />
framework listed five causes of radicalization: ?disaffected<br />
youth,? ?a deepening disconnect between youth and<br />
religious leaders,? ?internal identity crises,? ?community<br />
isolation,? and ?lack of opportunity.?<br />
The Los Angeles CVE program operated under a similar<br />
The first programs<br />
the Minneapolis CVE program sought to fund were<br />
framework, focusing on bringing together law<br />
?after-school and tutoring programs in hope of fostering a<br />
enforcement, government agencies, and community<br />
sense of belonging for young Somali-Americans.?<br />
organizations to ?address a broad spectrum of extremist<br />
In<br />
ideology that promotes violence and criminal activity.? 14 addition, as part of its intervention strategy, the framework<br />
calls for youth workers to build relationships with Somali<br />
The framework also highlights ?partnerships with the<br />
American-Muslim community? 15 public school students in order to work directly with them<br />
in combating extremism,<br />
thus indicating a specific focus for this CVE program on<br />
Muslim communities. One of the most striking elements of<br />
?before law enforcement is ever involved.? 19<br />
Underlying Theories<br />
the Los Angeles pilot program is its recognition of<br />
Although the CVE reports themselves do not offer a clear<br />
critiques levelled against CVE programs. It notes that ?the<br />
definition of the threats CVE seeks to eradicate, CVE?s<br />
reluctance among some to engage with law enforcement<br />
counterterrorism framework borrows heavily from theories<br />
partners rests on negative perceptions of law enforcement<br />
of radicalization put forth by the FBI and NYPD in the<br />
and a view that law enforcement methods securitize<br />
aftermath of the 9/11 attacks. The FBI and NYPD?s<br />
relationships, stigmatize communities, violate privacy<br />
radicalization theories? operating under the assumption<br />
rights and civil liberties, and constitute a form of<br />
that ?religious and political cultures within Muslim<br />
spying.? 16<br />
communities foment radicalization in<br />
The last pilot CVE program was based in Minneapolis,<br />
home to the largest Somali diaspora community in the<br />
individuals?? targeted Muslim communities. 20 The FBI?s<br />
flawed anti-Muslim approach to counterterrorism can best<br />
United States. Uncoincidentally, Minneapolis?s CVE be encapsulated by its 2006 report titled The<br />
10. U.S. Attorney?s Office, District of Massachusetts, A Framework for Prevention and Intervention Strategies (Massachusetts, 2015), 4,<br />
https://www.justice.gov/sites/default/files/ usao-ma/pages/attachments/2015/02/18/framework.pdf.<br />
11. Ibid., 8.<br />
12. Ibid., 9.<br />
13. Ibid.<br />
14. Los Angeles Interagency Coordination Group, The Los Angeles Framework for Countering Violent Extremism (California, 2015), 1,<br />
https://www.dhs.gov/sites/default/files/publications/ Los%20Angeles%20Framework%20for%20CVE-Full%20Report.pdf.<br />
15. Ibid., 7-8.<br />
16. Ibid., 9.<br />
17. U.S. Attorney?s Office, District of Minnesota, Building Community Resilience Minneapolis-St. Paul Pilot Program A Community-Led<br />
Framework (Minnesota, 2015), 4, https://www.justice.gov/usao-mn/file/642121/download.<br />
18. Mukhtar M. Ibrahim, ?Muslim Groups Speak Against Anti-Terror Program,? MPR News, May 1, 2015.<br />
19. U.S. Attorney?s Office, District of Minnesota, 4.<br />
20.Amna Akbar, ?Policing ?Radicalization,?? UC Irvine <strong>Law</strong> <strong>Review</strong> 3, no. 4 (December 2013): 814.<br />
<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />
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Targeting Muslims and Civil Liberties Prevention:<br />
An Analysis of the Countering Violent Extremism Program?s First Amendment Violations<br />
Radicalization Process: From Conversion to Jihad,<br />
primarily in the way it theorizes extremism as a staged<br />
process with clear markers defined by various Islamic<br />
and/or political observances and beliefs. The FBI?s report<br />
identification stage includes ?seek[ing] guidance from<br />
imams or more senior followers on how to live every detail<br />
of the religion,? leading the individual to become ?more<br />
committed to the newfound faith.? 26<br />
defines the radicalization cycle as being ?generally<br />
The third stage, indoctrination, is defined as occurring<br />
composed of four steps: pre-radicalization, identification,<br />
once an individual ?has accepted the radical ideology? and<br />
indoctrination, and action.? 21<br />
The first stage, pre-radicalization, is attributed by the<br />
?ultimately becomes convinced that further action is<br />
required to support the cause.? 27<br />
report to include major life changes motivated by either<br />
The final stage, action, is ?engaging in terrorist activities in<br />
intrinsic or extrinsic motivation. The examples of intrinsic<br />
support of the cause? and includes activities such as<br />
motivation given include a convert to Islam repudiating the<br />
recruitment, suspicious weapons/bomb purchases, and<br />
Holy Trinity and the Lackawanna Six giving up a lifestyle<br />
large transfers of funds. 28 The NYPD report Radicalization<br />
of alcohol and drugs. 22 Extrinsic motivations could include<br />
in the West: The Homegrown Threat ?mirrors the 2006 FBI<br />
major life changes, such as a conversion or faith<br />
Intelligence Assessment, theorizing the process from<br />
reinterpretation, stemming ?from economic, ethnic, racial,<br />
Muslim to terrorist with similar stages and markers, but in<br />
legal, political, religious, familial, or social deprivation.? 23<br />
The report also lists particular sites, primarily sites where<br />
Muslims congregate, where the journey to radicalization<br />
greater detail.? 29<br />
From the FBI and NYPD reports, it is clear that the central<br />
begins, including mosques, prisons, universities<br />
focus behind these agencies?conceptions of extremism is<br />
(specifically Islamic groups in universities), places of<br />
employment, and Internet chat rooms. 24<br />
that extremism is by and large influenced by devotion to<br />
Islamic practices. By assuming a causal relationship<br />
between adherence to Islam and radicalization and<br />
The second stage, identification, is defined as when ?an<br />
extremism, the FBI and NYPD have thus situated Islamic<br />
individual identifies himself with a particular extremist<br />
places and identification markers as sites to spy on,<br />
cause and accepts a radicalized ideology that justifies,<br />
monitor, and surveil American Muslims for simply<br />
condones, encourages, or supports violence or other<br />
practicing, associating, and/or identifying with their faith.<br />
criminal activity against the US Government, its citizens,<br />
CVE adopts this radicalization paradigm and seeks to not<br />
its allies, or those whose opinions are contrary to his own<br />
only gather intelligence on those deemed as falling into<br />
extremist agenda.? 25 In addition, one of the markers of the<br />
violent extremism, but also to prevent such ideologies<br />
21. Federal Bureau of Intelligence, Counterterrorism Division, The Radicalization Process: From Conversion to Jihad (Washington, D.C., 2006), 3,<br />
https://cryptome.org/fbi-jihad.pdf.<br />
22. Ibid., 5-6.<br />
23. Ibid.<br />
24. Ibid., 6-7.<br />
25. Ibid., 7.<br />
26. Ibid.<br />
27. Ibid., 8.<br />
28. Ibid., 9-10.<br />
29. Akbar, 821.<br />
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Targeting Muslims and Civil Liberties Prevention:<br />
An Analysis of the Countering Violent Extremism Program?s First Amendment Violations<br />
from having influence in the American marketplace of<br />
ideas.<br />
Freedom of Speech: Supreme Court Precedent<br />
punishment of which have never been thought to raise any<br />
Constitutional problem. These include . . . ?fighting<br />
words?? those by which their very utterance inflict injury<br />
or tend to incite an immediate breach of the peace.? 33 Free<br />
Of the principal constitutional concerns with CVE is the<br />
way in which it seeks to restrict constitutionally-protected<br />
free speech. CVE seeks to prevent ?violent extremists and<br />
their supporters from inspiring, radicalizing, financing or<br />
recruiting individuals or groups in the United States to<br />
commit acts of violence.? 30 The key problem this<br />
definition poses is that it deems the support and inspiring<br />
of violence as a criminal act. This is in violation of<br />
precedent set by the Supreme Court in Brandenburg v.<br />
speech can only be limited when there is an imminent<br />
threat of violence. CVE programs, by and large, have<br />
failed to demonstrate that any of their programs target<br />
individuals or groups who have explicitly threatened<br />
violence or used ?fighting words? as defined by this<br />
Supreme Court decision. By nature of the unwarranted<br />
restrictions CVE programs put upon the freedom of<br />
expression of various Muslim communities, CVE is<br />
unconstitutional under Chaplinsky.<br />
Ohio (1969).<br />
The Court?s ruling in Cantwell v. Connecticut (1940) is<br />
Brandenburg dealt with the constitutionality of an Ohio<br />
criminal syndicalism law, which ?punishe[d] persons who<br />
?advocate or teach the duty, necessity, or propriety? of<br />
violence ?as a means of accomplishing industrial or<br />
political reform.?? 31 The Supreme Court ruled that ?a<br />
statute which fails to to draw this distinction [between<br />
mere abstract teaching and preparing a group to use<br />
also relevant in examining CVE programs? stifling of<br />
American Muslims? right to free religious speech. In<br />
Cantwell v. Connecticut? involving a Jehovah?s Witness<br />
proselytizer who was charged with inciting a ?breach of<br />
the peace?? the Supreme Court delineated what could be<br />
considered a ?breach of the peace.? The Court?s opinion<br />
explained in part that<br />
violence] impermissibly intrudes upon the freedoms<br />
guaranteed by the First and Fourteenth Amendments.? 32<br />
CVE explicitly states that its focus is on the ?marketplace<br />
When clear and present danger of riot, disorder,<br />
interference with traffic upon the public streets, or<br />
other immediate threat to public safety, peace, or order<br />
of ideas? and preventing people from accessing<br />
appears, the power of the State to prevent or punish is<br />
?extremist? and ?radical? thought. The decision in<br />
Brandenburg makes it clear that it is unconstitutional for a<br />
government program to target and criminalize even the<br />
teaching of and exposure to ?radicalizing theories,? let<br />
obvious. Equally obvious is it that a State may not<br />
unduly suppress free communication of views,<br />
religious or other, under the guise of conserving<br />
desirable conditions. 34<br />
alone religious teachings.<br />
The primary rationale offered for CVE programs is the<br />
In Chaplinsky v. New Hampshire (1941), the Supreme<br />
Court held that ?there are certain well-defined and<br />
protection of national security and public safety. However,<br />
CVE fails as a program to demonstrate how the Muslim<br />
narrowly limited classes of speech, the prevention and<br />
30. Executive Office of the President, Strategic Implementation Plan (2011), 1.<br />
31. Brandenburg v. Ohio, 395 U.S. 448 (1969).<br />
32. Ibid.<br />
33. Chaplinsky v. New Hampshire, 315 U.S. 571-572 (1942).<br />
34. Cantwell v. Connecticut, 310 U.S. 308 (1940).<br />
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communities it targets pose imminent threats to public identity, including in their schools, and subject them to law<br />
safety. Despite failing to demonstrate a clear and present enforcement intervention through arbitrary means. The<br />
danger, under CVE the government nevertheless surveils, programs explicitly target Muslim students in schools,<br />
monitors, and collects information on those very same using markers of extremism that target their religious<br />
communities, thereby executing an intrusion into those practices and threaten their free expression of political and<br />
community members? First Amendment?protected civil religious ideas, as seen in the Minneapolis CVE program.<br />
liberties. This unwarranted intrusion is unconstitutional The Los Angeles CVE program was explicitly focused on<br />
under Cantwell.<br />
rooting out extremism within Muslim communities and<br />
allowed for anyone referred to the LAPD, Joint Terrorism<br />
Free Exercise of Religion: Strict Scrutiny Standard<br />
Task Force, or other law enforcement agencies for<br />
When cases come before a court where the complainant<br />
exhibiting ?violent extremism? to undergo a ?work-up?<br />
party alleges a violation of constitutionally protected<br />
conducted by the LAPD. Given this evidence, there is no<br />
rights, the court applies a higher standard of evaluation<br />
doubt that the free exercise of religion by American<br />
than in regular cases. Strict scrutiny requires a<br />
Muslims is heavily burdened.<br />
three-pronged test? the government must demonstrate a<br />
The court must therefore determine whether there is a<br />
compelling state interest, their action must be the least<br />
compelling state interest for the burden on free exercise of<br />
restrictive means of pursuing that interest, and the policy<br />
religion. In the past, the Supreme Court has ruled that<br />
must be as narrowly tailored as possible. Because freedom<br />
preserving national security is a legitimate compelling<br />
of religion is a fundamental freedom protected by the First<br />
state interest. Justice Frankfurter wrote in a concurring<br />
Amendment, courts use strict scrutiny to evaluate policies<br />
opinion in Dennis v. United States (1951): ?The right of a<br />
that may violate that freedom. Under the strict scrutiny<br />
government to maintain its existence? self<br />
standard, it would be quite challenging to prove CVE?s<br />
preservation? is the most pervasive aspect of society.<br />
constitutionality given its questionable foundations.<br />
?Security against danger,? wrote Madison, ?is one of the<br />
The compelling state interest test in the case of religious<br />
primitive objects of civil society.?? 37<br />
freedom infringements is best laid out in the Supreme<br />
Given that the Supreme Court considers national security a<br />
Court?s opinion in Sherbert v. Verner (1963). The test first<br />
compelling state interest, the question remains whether<br />
considers whether a given program ?imposes any burdens<br />
CVE programs are a narrowly tailored means of<br />
on the free exercise of . . . religion.? If there is indeed a<br />
accomplishing that interest. The Court in Dennis writes<br />
burden placed on the free exercise of religion, the Court<br />
that in cases involving national security, only speech that<br />
would consider whether there is a ?compelling state<br />
constitutes a ?clear and present danger? of criminal activity<br />
interest? that could justify ?the substantial infringement of<br />
[a] First Amendment right.? 36 may be restricted and prosecuted.<br />
CVE programs certainly<br />
38 The Court found<br />
petitioners could not be convicted if they did ?no more<br />
burden the free exercise of religion of American Muslims,<br />
than pursue peaceful studies and discussions or teaching<br />
as the programs target Muslims by virtue of their religious<br />
35. Sherbert v. Verner, 374 U.S. 403 (1963).<br />
36. Ibid., 374 U.S. 406.<br />
37. Dennis v. United States, 341 U.S. 519 (1951) (Frankfurter, J., concurring).<br />
38. Dennis v. United States, 341 U.S. 515.<br />
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and advocacy in the realm of ideas.? 39 Therefore, in order hate crime or terrorist attack.? 41 These conspiracy statutes<br />
for CVE to be constitutional, it would need to prove that it have been used previously by the Justice Department in<br />
was targeting individuals and groups that present a ?clear hate crime and domestic terrorism cases. Relevant<br />
and present danger,? and only those targets? the program conspiracy statutes include those that deem illegal a<br />
must be narrowly tailored.<br />
?conspiracy to injure, threaten, or intimidate a person in<br />
free exercise or enjoyment of any right or privilege secured<br />
CVE has failed to demonstrate that it specifically targets<br />
under the Constitution or U.S. laws? and ?conspiracy to<br />
only individuals who present a ?clear and present danger.?<br />
defraud the United States.?<br />
CVE?s primary intent is to ?[prevent] violent extremists<br />
42 These statutes operate in line<br />
with previous Supreme Court precedents, which delineate<br />
and their supporters from inspiring, radicalizing, financing<br />
the necessity of a ?clear and present danger? or an<br />
or recruiting individuals or groups in the United States to<br />
commit acts of violence.? 40 ?imminent threat of violence? before restricting First<br />
In furtherance of this aim,<br />
Amendment rights of free speech, expression, and exercise<br />
CVE has targeted individuals with no criminal history,<br />
of religion. Given that such statutes exist and have proven<br />
based upon deeply flawed markers of extremism like their<br />
successful in the prevention of terrorism and<br />
community, religious, and school affiliations. The Court<br />
extremism? without targeting an entire community? CVE<br />
has ruled that even extremist ideology is protected speech<br />
cannot be considered the least restrictive means of<br />
not subject to government intervention. Therefore, even if<br />
preventing extremism. Because CVE programs as policy<br />
a Muslim community espouses extremist ideology, it<br />
are neither narrowly tailored nor the least restrictive means<br />
cannot be targeted by CVE, even in light of a valid<br />
of furthering the government?s national security interest,<br />
national security interest more broadly. Though the<br />
they must be considered unconstitutional.<br />
government may argue that it has had some limited success<br />
with the CVE, this does not make the policy constitutional Establishment Clause Violation: Anti-Muslim Animus<br />
since it is not narrowly tailored and impacts the entire<br />
CVE programs are influenced by anti-Muslim animus and<br />
Muslim community.<br />
can therefore be found unconstitutional for violating the<br />
The final prong of the strict scrutiny standard is whether Establishment Clause of the United States Constitution.<br />
the policy at issue is the least restrictive means of The radicalization theories that CVE programs are based<br />
preventing terrorism in order to advance the government?s on directly target the religious practices and congregation<br />
interest in national security. It is not. There are already sites of American Muslims as indicators of extremism,<br />
federal statutes that the Justice Department and law undoubtedly compromising the strict neutrality towards<br />
enforcement agencies could use to target violent religion guaranteed by the Establishment Clause. Perhaps<br />
extremists. For example, scholar Michael German argues the most explicit evidence of anti-Muslim animus are the<br />
that ?conspiracy statutes provide substantial recourse to Trump administration?s statements against Muslims and<br />
charge individuals before they successfully complete a his intention to ?rename [Countering Violent Extremism]<br />
39. Ibid., 341 U.S. 502.<br />
40. Executive Office of the President, Strategic Implementation Plan (2011), 1.<br />
41. Michael German and Sara Robinson, "Wrong Priorities on Fighting Terrorism " (New York: Brennan Center for Justice at New York University,<br />
2018), 13, https://www.brennancenter.org/sites/default/files/2019-08/Report_Wrong_Priorities_Terrorism.pdf.<br />
42. Ibid.<br />
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. . . so that it focuses solely on Islamist extremism.? 43<br />
In order to understand the anti-Muslim animus behind the<br />
Trump administration?s restructuring of CVE, one must<br />
take a look at the pattern of anti-Muslim animus in his<br />
official statements and speeches. In response to a question<br />
on Muslim training camps at a rally in September 2015,<br />
Trump answered, ?We?re going to be looking at a lot of<br />
different things. You know, a lot of people are saying that,<br />
and a lot of people are saying that bad things are<br />
happening out there. We?re going to be looking at that and<br />
plenty of other things.? 44 In <strong>No</strong>vember 2015, Trump made<br />
comments that implied he was considering implementing a<br />
database and/or surveillance programs that would target<br />
American Muslims. 45 In December 2015, Trump called for<br />
?a total and complete shutdown of Muslims entering the<br />
United States,? while citing polls that indicate 25 percent<br />
of Muslims polled ?agreed that violence against Americans<br />
. . . is justified as a part of the global jihad.? 46 In the<br />
aftermath of the shooting at the Pulse nightclub in June<br />
2016, Trump ?tweeted that he appreciated ?the congrats for<br />
being right on radical Islamic terrorism,?and called for the<br />
federal government to begin surveiling ?the mosques?<br />
inside the United States.? 47 In May 2017, Trump said in a<br />
commencement speech, ?I?ll speak with Muslim leaders<br />
and challenge them to fight hatred and extremism and<br />
embrace a peaceful future for their faith . . . We have to<br />
stop radical Islamic terrorism.? 48<br />
Trump?s statements show a pattern of explicit anti-Muslim<br />
intent? firstly by embracing the notion that Muslims and<br />
Islam itself are either inherently extremist or more<br />
predisposed to being radical, violent, and/or extremist, and<br />
secondly, that Muslim communities, individuals, and<br />
congregation sites can be subject to government<br />
surveillance and intelligence gathering programs by virtue<br />
of their faith?s supposed proximity to extremism. This<br />
anti-Muslim animus is ultimately reflected in Trump?s<br />
CVE policies, as he sought to orient the program to<br />
exclusively focus on ?radical Islam? and rescinded funding<br />
to organizations countering white supremacist terrorism.<br />
This targeting of Islam and Muslim communities is in clear<br />
violation of the Establishment Clause, which provides<br />
?that the Government cannot favor or disfavor one religion<br />
over another.? 49<br />
Trump v. Hawaii<br />
CVE programs not only inherently target Muslim<br />
communities unconstitutionally, as established in the<br />
previous section, but in targeting communities precisely<br />
because they are of a particular religion, the CVE is in<br />
violation of the Establishment Clause. It may be difficult,<br />
however, to prove a causal link between the blatant and<br />
repeated displays of anti-Muslim animus by the Trump<br />
43. Julia Edwards Ainsley, Dustin <strong>Vol</strong>z, and Kristina Cooke, ?Exclusive: Trump to Focus Counter-Extremism Program Solely on Islam - Sources,?<br />
Reuters, February 3, 2017, https://www.reuters.com/article/us-usa-trump-extremists-program-exclusiv/exclusive-trump-to-focus-counterextremism-program-solely-on-islam-sources-idUSKBN15G5VO.<br />
44. Jenna Johnson and Abigail Hauslohner, ??I Think Islam Hates Us?: A Timeline of Trump?s Comments About Islam and Muslims,? Washington<br />
Post, May 20, 2017,<br />
https://www.washingtonpost.com/news/post-politics/wp/2017/05/20/i-think-islam-hates-us-a-timeline-of-trumps-comments-about-islam-and-muslims.<br />
45. Lauren Carroll, ?In Context: Donald Trump?s Comments On A Database of American Muslims,? PolitiFact, <strong>No</strong>vember 24, 2015,<br />
https://www.politifact.com/article/2015/nov/24/donald-trumps-comments-database-american-muslims.<br />
46. Donald J. Trump for President, Inc., ?Donald J. Trump Statement on Preventing Muslim Immigration,? December 7, 2015,<br />
https://web.archive.org/web/20170207013545/https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement<br />
-on-preventing-muslim-immigration.<br />
47. Zack Beauchamp, ?Trump Loves Saying ?Radical Islamic Terrorism.?He Has A Tough Time With ?White Supremacy,?? Vox, August 14, 2017,<br />
https://www.vox.com/world/2017/8/14/16143634/trump-charlottesville-white-supremacy-terrorism-islamism.<br />
48. Ibid.<br />
49. Trump v. Hawaii, 585 U.S. __, slip. op., 2 (2018) (Sotomayor, J., dissenting).<br />
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repeated displays of anti-Muslim animus by the Trump<br />
administration and their implementation of the CVE<br />
program.<br />
more than a ?religious gerrymander.?? 53 Justice Sotomayor<br />
concludes that there does not need to be an explicit<br />
mention of religion for there to be Establishment Clause<br />
violations in the Muslim ban, as ?the record? establishes<br />
Justice Sotomayor?s dissenting opinion in Trump v. Hawaii<br />
that ?the President campaigned on a promise to implement<br />
(2018) provides an important precedent in establishing the<br />
?a total and complete shutdown on Muslims?entering the<br />
viability of considering the government?s intent when<br />
country, translated that campaign promise into a concrete<br />
attempting to review the constitutionality of a<br />
policy, and made several statements linking that policy (in<br />
governmental policy. Trump v. Hawaii deals with the<br />
constitutionality of the Executive Order 13780, more<br />
commonly known as the Muslim ban. In her dissenting<br />
opinion, Justice Sotomayor cites that the Court<br />
[h]as generally considered the text of the government<br />
policy, its operation, and any available evidence<br />
regarding ?the historical background of the decision<br />
under challenge, the specific series of events leading to<br />
the enactment or official policy in question, and the<br />
its various forms) to anti-Muslim animus.? 54<br />
Establishment Clause and CVE<br />
In applying Justice Sotomayor?s framework in Trump v.<br />
Hawaii to the constitutionality of CVE, one clearly sees<br />
that CVE can be considered unconstitutional due to its<br />
violation of the Establishment Clause. Like the Muslim<br />
ban, Trump?s repeated anti-Muslim statements and<br />
comments can be used to show a pattern of anti-Muslim<br />
legislative or administrative history, including animus that has guided the implementation of CVE, as<br />
contemporaneous statements made by? the indicated specifically by his comments advocating for<br />
decisionmaker. 50<br />
surveillance of mosques and a national registry of<br />
American Muslims. Unlike the Muslim ban at issue in<br />
Next, Justice Sotomayor quotes many of Trump?s<br />
Trump v. Hawaii, CVE is very explicit in its targeting of<br />
anti-Muslim statements and comments in order to<br />
Muslim communities.<br />
demonstrate a pattern of anti-Muslim animus that would<br />
then inform the signing of the Muslim ban. 51 Justice<br />
Sotomayor argues that under the endorsement test, a<br />
Almost all of the pilot CVE programs? strategic<br />
frameworks identified Muslim and/or predominantly<br />
rational observer ?would conclude that the primary Muslim ethnic communities as primary sites of<br />
purpose of the Proclamation is to disfavor Islam and its<br />
adherents by excluding them from the country,? thereby<br />
constituting a violation of the Establishment Clause. 52 In<br />
subjecting the issue to the strict scrutiny standard<br />
necessary in an Establishment Clause case, Justice<br />
Sotomayor finds the national security interests mentioned<br />
in the majority?s opinions to be insufficient and ?nothing<br />
engagement for counterterror activity. In addition, all CVE<br />
frameworks are heavily influenced by FBI and NYPD<br />
counterterror frameworks and strategies, which essentialize<br />
Muslims as inherently predisposed to extremism and<br />
correlate adherence to Islam with extremism. This pattern<br />
demonstrates a level of anti-Muslim animus and<br />
unconstitutional disfavoring of Muslims that predates the<br />
50. Ibid., 585 U.S. __, slip. op., 3-4 (Sotomayor, J., dissenting).<br />
51. Ibid., 585 U.S. __, slip. op., 4-10 (Sotomayor, J., dissenting).<br />
52. Ibid., 585 U.S. __, slip. op., 10 (Sotomayor, J., dissenting).<br />
53. Ibid., 585 U.S. __, slip. op., 17 (Sotomayor, J., dissenting).<br />
54. Ibid., 585 U.S. __, slip. op., 17-18 (Sotomayor, J., dissenting).<br />
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Trump administration?s hostility towards Muslims. Through the case study of American Muslims in the<br />
Therefore, applying Justice Sotomayor?s reasoning in<br />
Trump v. Hawaii to CVE would render it to be in major<br />
violation of the First Amendment?s protections of free<br />
religious exercise and neutrality towards religion.<br />
Conclusion<br />
The history and development of CVE programs occurred<br />
within a larger process of securitization of Muslim<br />
communities in the aftermath of the 9/11 attacks, which<br />
was characterized by targeting Muslims and Islam for<br />
supposedly being inherently predisposed to committing<br />
crosshairs of the Countering Violent Extremism Task<br />
Force and its programs, this article has challenged the<br />
legality of the existing counterterror paradigm as a whole.<br />
As counterterrorism agencies? mandate continues to<br />
expand, the list of ideologies targeted beyond the scope<br />
allowed in Brandenburg?s standard of ?clear and imminent<br />
danger? to public safety will expand commensurately.<br />
American society, not only within the Muslim community,<br />
but beyond, is increasingly coming face to face with the<br />
harsh realities of the United States? police, security, and<br />
surveillance state. It is clearer than ever that we must<br />
terrorist acts. <strong>No</strong>t only have such radicalization theories<br />
expend greater energy to preserve Americans?<br />
been widely criticized and debunked by terrorism experts,<br />
but programs based on these theories have run deeply afoul<br />
of the principles of the United States Constitution. CVE<br />
constitutional rights. We cannot continue to hand blank<br />
checks to law enforcement agencies in the name of<br />
national security and public safety.<br />
programs clearly violate the Establishment Clause and<br />
infringe upon the First Amendment rights of American<br />
Muslims by impinging on their freedom of speech,<br />
burdening their free religious exercise, and discriminating<br />
against them on the basis of their religion.<br />
The radicalization theories and legal fallacies that have<br />
enabled the CVE programs against American Muslims also<br />
undergird actions targeting other groups in society. The<br />
FBI has sought to expand counterterrorism frameworks to<br />
target Black communities under the ?Black identity<br />
extremist? domestic terrorism category, continuing the<br />
FBI?s long legacy of surveilling Black movement<br />
leaders. 55 In the aftermath of the Capitol Hill insurrection<br />
of January 6, <strong>2021</strong>, law enforcement agencies have also<br />
begun focusing on counterterrorism operations against<br />
white supremacists and far-right activists. Though the<br />
targeting of these groups may not raise the same<br />
constitutional issues stemming from the Establishment<br />
Clause and the protections for the free exercise of religion,<br />
they do share the same violations of freedom of speech and<br />
discrimination on the basis of ideology.<br />
55. Mike German, ?The FBI Has A History of Targeting Black Activists. That's Still True Today,? Guardian, June 26, 2020.<br />
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STANDARDIZING AUTONOMY:<br />
MEDICAL COMMUNICATION,<br />
LIABILITY, AND THE DOCTRINE<br />
OF INFORMED CONSENT<br />
Liza Edwards-Levin<br />
ABSTRACT<br />
This paper critically examines the legal history and social significance of the informed consent doctrine of medical<br />
malpractice law in the United States. Continually referring back to the landmark case of Canterbury v. Spence (1972), I<br />
analyze the reasoning behind several key legal decisions that influenced the development of medical informed consent<br />
law. My analysis centers around the complexity of at once upholding patients' autonomy and respecting physicians'<br />
professional expertise in the eyes of the law, through analyzing several widely-debated aspects of medical informed<br />
consent law (such as reasonable disclosure standards) that continue to be interpreted differently between and even within<br />
states.<br />
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Standardizing Autonomy: Medical Communication, Liability, and the Doctrine of Informed Consent<br />
Canterbury Sets the Stage<br />
violated his duty to disclose the operation?s risks. 5 Unlike<br />
When 19-year-old Jerry Canterbury entered surgery to<br />
traditional medical battery law, which applied only to<br />
relieve pressure on his spinal cord in 1972, he could not<br />
procedures performed without a patient?s authorization,<br />
have known what he was in for: a future disabled by Canterbury v. Spence established that in order to obtain<br />
urinary incontinence and partial paralysis from the waist consent, physicians must inform their patients of a<br />
down. 1 Having complained of back and neck pain, treatment?s material risks and alternatives. In this sense, a<br />
Canterbury agreed to undergo a laminectomy (removing patient?s ?lack of informed consent operates to negate<br />
part of the vertebral bone) at the recommendation of [their] authorization for a procedure.? 6 In addition to<br />
neurosurgeon William Spence, who examined Canterbury drawing on the doctrine of medical battery, the appeals<br />
to find evidence of a ruptured disk. When Canterbury?s court characterized Canterbury?s claim against Spence as<br />
mother inquired about the seriousness of the procedure, Dr. one of negligence, stating, ?[Canterbury?s] interest in<br />
Spence described it as relatively low-risk, ?not any more bodily integrity commanded protection, not only against an<br />
[serious] than any other operation.? 2 Following the intentional invasion by an unauthorized operation but also<br />
surgery, however, Canterbury slipped out of his hospital against a negligent invasion by his physician?s dereliction<br />
bed while attempting to urinate, after which his legs of duty to adequately disclose.? 7<br />
became numb and paralysis ensued. In the words of the<br />
Canterbury v. Spence also marked a historic shift toward<br />
D.C. Circuit Court of Appeals, today?s doctrine of medical<br />
protecting patients?autonomy? every adult?s fundamental<br />
informed consent law was precipitated by Canterbury?s<br />
?depressing tale? of medical practice gone wrong? and his<br />
?right to determine what shall be done with his own<br />
?understandable search for reasons.? 3<br />
body?? over and above physicians?expertise. 8 The appeals<br />
court recognized that patients, typically lacking<br />
Canterbury v. Spence (1972) expanded the physician?s<br />
sophisticated medical knowledge, rely upon doctors to<br />
duty to care under medical malpractice law to include the<br />
fulfill their ?vital informational needs.? 9 Further,<br />
obligation to disclose relevant information. 4 In a landmark<br />
Canterbury ?judicially mandated? this doctor-to-patient<br />
ruling that crystallized a new means of adjudicating<br />
information transfer by stating that physicians, not<br />
informed consent, the Canterbury appeals court reversed<br />
patients, are responsible for ensuring appropriate<br />
the district court?s award of directed verdicts to the<br />
disclosure (that is, ?describing the proposed treatment, its<br />
Defendants (Dr. Spence and the hospital), ruling that<br />
risks, benefits, complications and alternatives [including<br />
sufficient evidence existed to establish that Dr. Spence<br />
1. Sam Roberts, ?Jerry Canterbury, Whose Paralysis Led to Informed Consent <strong>Law</strong>s, Is Dead at 78,? The New York Times, May 16, 2017,<br />
https://www.nytimes.com/2017/05/16/us/jerry-canterbury-medical-consent-paralysis.html.<br />
2. Canterbury v. Spence, 464 F.2d 772 (1972).<br />
3. Ibid., 464 F.2d 772.<br />
4. May Anne Bobinski, ?<strong>Law</strong> and Power in Health Care: Challenges to Physician Control,? Buffalo <strong>Law</strong> <strong>Review</strong> 67 (May 2019): 616.<br />
5. Ibid., 614.<br />
6. Clinton L. Kelly, ?THE RISE OF MEDICAL BATTERY AND INFORMED CONSENT,? Tennessee Bar Journal 52 (August 2016): 22.<br />
7. Canterbury, 464 F.2d 793.<br />
8. Ibid., 464 F.2d 780 (citing Schloendorff v. Society of New York Hospital (1914)).<br />
9. Ibid., 464 F.2d 782.<br />
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Standardizing Autonomy: Medical Communication, Liability, and the Doctrine of Informed Consent<br />
no treatment at all]?). 10 11 Departing from precedent, the<br />
appeals court determined that doctors cannot be legally<br />
entrusted with judging the scope of adequate disclosure;<br />
such discernment should be left to the courts. 12 Suggesting<br />
certain degree of ambiguity. The Canterbury court adopted<br />
the novel ?lens of reasonableness, rather than custom? to<br />
determine the materiality of a given risk, delineate<br />
physicians? duty to disclose, and assess the validity of<br />
that physicians may fail to align their professional informed consent claims. 16 17 However, assessing<br />
standards with patient interests, the appeals court declared,<br />
?Respect for the patient?s right of self-determination on<br />
particular therapy demands a standard set by law for<br />
physicians rather than one which physicians may or may<br />
not impose upon themselves.? 13<br />
reasonableness? let alone standardizing it? has proven a<br />
challenging science. After all, individuals? responses to,<br />
and interest in, the disclosure of specific risks may vary<br />
dramatically? posing the question: Is it possible to<br />
generalize the decision-making process of a mythical<br />
At the same time, not every doctor?s failure to inform<br />
?reasonable? patient? Even the Canterbury court<br />
could result in an informed consent claim. Besides<br />
demonstrating that their physician failed to disclose a<br />
procedure?s material risk, plaintiffs must also prove that a<br />
?reasonable patient [made aware of the risk] would more<br />
likely than not have opted not to undergo the procedure,?<br />
acknowledged the delicate task of applying the standard in<br />
practice, stating, ?There is no bright line separating the<br />
significant from the insignificant; the answer in any case<br />
must abide by a rule of reason.? 18<br />
Courts across the United States have since struggled to<br />
and that the undisclosed risk caused them to suffer a pinpoint the boundaries of reasonable disclosure.<br />
compensable injury. 14 Furthermore, according to Wisconsin?s state courts interpreted Canterbury to justify<br />
Canterbury, physicians are exempt from their duty to<br />
obtain informed consent in emergencies when the patient is<br />
the adoption of an unusually expansive disclosure doctrine,<br />
leading state physician groups to protest against the<br />
?unconscious or otherwise incapable of consenting,? as harmful impacts of defensive medicine. 19 While<br />
well as in situations where risk disclosure would threaten<br />
the patient?s well-being. 15<br />
Yet, the very notion of informed consent is imbued with a<br />
Canterbury has led some states to judge informed consent<br />
cases foremost according to the expectations of a<br />
reasonable patient? a standard that tends to favor plaintiffs<br />
10. Marc D. Ginsberg, ?Beyond Canterbury: Can Medicine and <strong>Law</strong> Agree about Informed Consent? And Does It Matter?? The Journal of <strong>Law</strong>,<br />
Medicine & Ethics 45, no.1 (March 2017): 109.<br />
11. Bobinski, 618.<br />
12.Canterbury, 464 F.2d 786. (?The duty to disclose, we have reasoned, arises from phenomena apart from medical custom and practice. The latter,<br />
we think, should no more establish the scope of the duty than its existence.?)<br />
13. Ibid., 464 F.2d 780, 784.<br />
14.Nadia N. Sawicki, ?Modernizing Informed Consent: Expanding the Boundaries of Materiality,? University of Illinois <strong>Law</strong> <strong>Review</strong>, (2016):, 8?9.<br />
15.Canterbury, 464 F.2d 788. (?Two exceptions to the general rule of disclosure have been noted by the courts. Each is in the nature of a physician?s<br />
privilege not to disclose, and the reasoning underlying them is appealing. Each, indeed, is but a recognition that, as important as is the patient?s right<br />
to know, it is greatly outweighed by the magnitudinous circumstances giving rise to the privilege? ?)<br />
16.Bobinski, 617.<br />
17. Canterbury, 464 F.2d 785. (?We hold that the standard measuring performance of that [duty to disclose] by physicians, as by others, is conduct<br />
which is reasonable under the circumstances.?)<br />
18.Canterbury v. Spence, 464 F.2d 787.<br />
19.Marc D. Ginsberg, ?Informed Consent and The Differential Diagnosis: How the <strong>Law</strong> Overestimates Patient Autonomy and Compromises Health<br />
Care,? Wayne <strong>Law</strong> <strong>Review</strong> 60 (2015): 371?72.<br />
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Standardizing Autonomy: Medical Communication, Liability, and the Doctrine of Informed Consent<br />
in case outcomes? others defer to the reasonable<br />
physician?s expertise and instinct. 20 21 In recent years,<br />
disclosure statutes enacted in Canterbury?s wake have<br />
required physicians to communicate information of<br />
varying medical accuracy to abortion-seeking patients in<br />
the name of women?s ?right to know.? 22 Today more than<br />
ever, patients are viewed as active consumers rather than<br />
state?s enactment of a 1981 statute mandating physicians?<br />
?full disclosure? of risks beyond Canterbury?s scope. The<br />
statute, Wis. Stat. §448.30 (?Information on Alternate<br />
Modes of Treatment?), centered doctors?duty to disclose<br />
around the patient?s condition rather than the physician?s<br />
diagnosis. Indeed, Wis. Stat. §448.30 required physicians<br />
to not only disclose information (risks and alternatives)<br />
passive recipients of healthcare, yet health relevant to their proposed therapy, but to additionally list<br />
literacy? patients?ability to ?acquire, understand, and use?<br />
medical information? varies widely across the population,<br />
rendering true informed consent unenforceable. 23 Indeed,<br />
while an increasing majority of Americans seek out health<br />
information online, Americans? self-reported dependence<br />
the ?benefits and risks? associated with ?all alternate,<br />
viable medical modes? of treating the patient?s condition. 25<br />
Between Martin v. Richards (1993) and Jandre v.<br />
Physicians Insurance Company of Wisconsin (2012), the<br />
statute?s ambiguous use of the word ?treatment? underwent<br />
on healthcare providers to impart reliable information has immense scrutiny: Wisconsin?s legal definition of<br />
not decreased as a result: patient-provider communication<br />
remains at the core of patients?medical decision-making. 24<br />
Still, in the nearly 50 years since Canterbury v. Spence was<br />
decided, subsequent legal efforts to protect patients?<br />
agency while respecting physicians? expertise have<br />
?treatment? expanded dramatically, then narrowed, as<br />
patients and physicians respectively defended their<br />
personal and professional judgment. 26<br />
While the political motivation behind Wis. Stat. §448.30<br />
remains unclear, its legal implications for Wisconsin<br />
demonstrated that patients? autonomous medical<br />
physicians proved substantial. 27 In Martin v. Richards<br />
decision-making cannot feasibly be standardized.<br />
(1993), the Wisconsin Supreme Court interpreted the<br />
statutory meaning of ?treatment? to encompass the<br />
Knowledge is Power? Informed Consent and Full<br />
Disclosure<br />
Where does reasonable disclosure end? Wisconsin?s courts<br />
wrestled with this question for decades following the<br />
conditional treatment of risks associated with the patient?s<br />
diagnosis, beyond the immediate treatment of the<br />
diagnosis at hand. After 14-year-old Cheryl Martin crashed<br />
her bike into the back of a truck, emergency room<br />
20. Sawicki, 10.<br />
21. Studdert et al., ?Geographic Variation in Informed Consent <strong>Law</strong>: Two Standards for Disclosure of Treatment Risks,? Journal of Empirical Legal<br />
Studies 4, no.1 (March 2007): 120.<br />
22. Daniels et al., ?Informed or Misinformed Consent? Abortion Policy in the United States,? Journal of Health Politics, Policy and <strong>Law</strong> 41, no. 2<br />
(April 2016): 181?82.<br />
23. Ginsberg, ?INFORMED CONSENT AND THE DIFFERENTIAL DIAGNOSIS: HOW THE LAW CAN OVERESTIMATE PATIENT<br />
AUTONOMY AND COMPROMISE HEALTH CARE,? 392.<br />
24. ?The Great American Search For Healthcare Information,? Weber Shandwick & KRC Research, 2018, 2, 11.<br />
25. Wis. Stat. § 448.30, Information on alternate modes of treatment.<br />
26. Jandre v. Physicians Insurance Company of Wisconsin, 813 N.W.2d 672. (??Treat?is not a defined term. The undefined term appears six times in<br />
different forms in Wis. Stat. §448.30.?)<br />
27. Ginsberg, ?INFORMED CONSENT? 361. (?There is nothing contained in the legislative history materials obtained from the Legislative<br />
Reference Bureau indicating why the proposed legislation was so broad. The proposed legislation may have been a product of a political agenda<br />
unknown to this author. Whatever the motivation for the statute, it would become an enemy of Wisconsin physicians.?)<br />
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Standardizing Autonomy: Medical Communication, Liability, and the Doctrine of Informed Consent<br />
physician William Richards diagnosed her head injuries as<br />
a concussion, noting ?the possibility of intracranial<br />
bleeding.? 28 When Dr. Richards recommended to Martin?s<br />
family that she remain at Fort Atkinson Memorial Hospital<br />
(FAMH) for observation, he failed to mention that the<br />
hospital had no neurosurgeons on staff and thus would be<br />
incapable of treating a ?neurological complication such as<br />
intracranial bleeding? should such a risk materialize. 29<br />
Martin did in fact suffer an intracranial bleed during her<br />
stay at FAMH, and a helicopter rushed her to the<br />
calling that standard ?the very point of [Wis. Stat.<br />
§448.30]?: The court stated, ?Here the doctor was<br />
concerned about the possibility of an intracranial bleed.<br />
When a reasonable person would want to know about an<br />
alternative treatment or method of diagnosis such as a CT<br />
scan or hospitalization in a facility with a neurosurgeon,<br />
the decision is not the doctor?s alone to make.? 33 As such,<br />
the court reasoned that Wisconsin physicians?disclosure of<br />
?all alternate, viable medical modes of treatment? under<br />
Wis. Stat. §448.30 must include available treatment<br />
University of Wisconsin hospital in Madison where she options (and their material risks) for potential<br />
underwent two emergency surgeries several hours later;<br />
her injuries left her a ?partial spastic quadriplegic.? 30<br />
complications related to the patient?s diagnosis. Indeed,<br />
rather than being selectively filtered through a physician?s<br />
professional judgment, Martin v. Richards established that<br />
Martin and her family sued Dr. Richards for negligence,<br />
a physician?s disclosure must contain all that a ?reasonable<br />
and the applicability of their informed consent claim was<br />
person would [or could] want to know,? including<br />
debated extensively as the case moved through<br />
treatments for statistically rare but serious complications<br />
Wisconsin?s courts. After the Jefferson County Circuit<br />
like intracranial bleeding. Yet, ?reasonable? people will<br />
Court granted Dr. Richards? motion to dismiss the<br />
inevitably desire different degrees of risk disclosure, and<br />
informed consent claim, the Wisconsin Court of Appeals<br />
physicians cannot possibly intuit the scope of each<br />
reversed the circuit court?s dismissal and remanded the<br />
case. 31 patient?s expectation.<br />
The Wisconsin Supreme Court affirmed the appeals<br />
court?s decision on the basis of informed consent, finding<br />
Dr. Richards liable under the standard established by Wis.<br />
Stat. §448.30. Having considered the risk of an intracranial<br />
bleed, Dr. Richards claimed he did not believe Martin was<br />
bleeding at the time he diagnosed her concussion, and thus<br />
did not think she required care at a facility with a<br />
neurosurgeon. In his argument before Wisconsin?s<br />
Supreme Court, Dr. Richards posed the question, ?Why<br />
should we inform the patient that we don?t think we should<br />
do something?? 32 The Court responded by invoking the<br />
reasonable patient standard established by Canterbury,<br />
Wis. Stat. §448.30 and the precedent set by Martin<br />
informed the Wisconsin Supreme Court?s decision in<br />
Jandre v. Physicians Insurance Company of Wisconsin<br />
(2012), which expanded physicians?disclosure duty even<br />
further to include discarded diagnoses. Thomas Jandre was<br />
evaluated by emergency room physician Therese Bullis<br />
with symptoms of ?drooling, slurred speech and one-sided<br />
facial droop, dizziness, and leg weakness?; after testing<br />
Jandre for multiple types of stroke events (hemorrhagic<br />
and ischemic strokes) and brain tumors, Dr. Bullis<br />
diagnosed him with Bell?s palsy, a ?diagnosis of<br />
28. Ibid., 74.<br />
29. Martin by Scoptur v. Richards, 531 N.W.2d 74.<br />
30. Ibid.<br />
31. Martin by Scoptur v. Richards, 531 N.W.2d 75.<br />
32. Ibid., 531 N.W.2d 80.<br />
33. Ibid., 531 N.W.2d 80?81.<br />
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Standardizing Autonomy: Medical Communication, Liability, and the Doctrine of Informed Consent<br />
exclusion? dependent on ruling out all other possible<br />
conditions. 34 35 Eleven days later, Jandre "suffered a fullblown<br />
stroke, [impairing] his physical and cognitive<br />
abilities.? 36 A carotid ultrasound subsequently revealed a<br />
significant blockage in Jandre?s carotid artery, indicative of<br />
an ischemic stroke event. Unfortunately, Dr. Bullis had<br />
incorrectly ruled out the possibility of an ischemic stroke<br />
through ?listening to Jandre?s carotid arteries with a<br />
stethoscope,? which she herself admitted to be a relatively<br />
unreliable screening method. 37 In her examination of<br />
Jandre, Dr. Bullis had declined to order a carotid<br />
ultrasound? a more accurate diagnostic tool that could<br />
have detected the blockage. Jandre?s family sued Dr. Bullis<br />
for negligence, bringing forth claims of informed consent<br />
as well as negligent care and treatment. 38 A trial court jury<br />
concluded that, although Dr. Bullis was not negligent in<br />
her diagnosis of Bell?s Palsy, she breached her disclosure<br />
duty under Wis. Stat. §448.30 when she did not inform<br />
part of Dr. Richards?diagnosis of concussion but rather a<br />
possible complication of Martin?s injury, the Martin court<br />
held that Dr. Richards should have disclosed the potential<br />
for intercranial bleeding to develop (and the hospital?s<br />
ability? or inability? to treat it) in order for the Martin<br />
family to make properly informed decisions about their<br />
daughter?s medical care. In the case of Jandre, the supreme<br />
court applied its previous, condition-centered informed<br />
consent standard to justify an even broader reading of Wis.<br />
Stat. §448.30, whereby ?the distinction between conditions<br />
?related?to the final diagnosis and conditions ?unrelated?to<br />
the final diagnosis finds no support in the statute or case<br />
law.? 41 In other words, the court determined that a<br />
physician?s duty to disclose includes diagnostic procedures<br />
and treatments for conditions related to the patient?s<br />
symptoms, yet unrelated to the physician?s final<br />
diagnosis? namely, conditions discarded by the physician<br />
in the diagnostic process. 42 Yet, a barrage of conflicting<br />
Jandre of the option to conduct a carotid ultrasound test for diagnostic information may leave patients more<br />
ischemic strokes. This judgment was upheld by the<br />
Wisconsin Court of Appeals, and ultimately affirmed by<br />
Wisconsin?s Supreme Court in their review of the case. 39<br />
Citing Martin v. Richards and Wis. Stat. §448.30, the<br />
Jandre court found that a physician?s duty to disclose<br />
should be dictated by the patient?s condition (?the<br />
symptoms that the patient displays?), not limited to their<br />
diagnosis. 40 Indeed, while intracranial bleeding was not<br />
overwhelmed than informed, not to mention, less aware of<br />
exactly what they are consenting to.<br />
Further, the Jandre court asserted that a physician?s<br />
inadequate disclosure of information could be deemed<br />
negligent even when their diagnosis and treatment were<br />
not, marking a sharp divergence between the professional<br />
standard used to review medical care and the patient<br />
standard for adjudicating informed consent. The medical<br />
34. Ginsberg, ?INFORMED CONSENT,? 369.<br />
35. Jandre v. Physicians Insurance Company of Wisconsin, 813 N.W.2d 641.<br />
36. Ibid.<br />
37. Ibid. (?Dr. Bullis admitted at trial that listening to the carotid arteries for a bruit is a ?very, very poor screening test for determining what shape<br />
the arteries are in.??)<br />
38. Ibid., 813 N.W.2d 686.<br />
39. Jandre v. Physicians Insurance Company of Wisconsin, 813 N.W.2d 627.<br />
40. Ibid. (?The essence of the decision in Martin, Wisconsin?s informed consent doctrine, and Wis. Stat. §448.30 ? is that when a reasonable person<br />
would want to know about an alternative treatment or method of diagnosis, the decision is not the doctor?s alone to make. It is the condition of a<br />
patient, that is, the symptoms that the patient displays, that drives the duty to inform, not the diagnosis.?)<br />
41. Jandre, 813 N.W.2d 648.<br />
42. Jandre, 813 N.W.2d 652. (?We apply the principle stated in Martin that it is Jandre?s condition, not Dr. Bullis?diagnosis of Bell?s palsy, that<br />
drives the scope of Dr. Bullis?duty to inform Jandre in the present case. Jandre?s symptoms indicated that he might be suffering from any number of<br />
conditions, of which a stroke seemed one of the most plausible and most capable of inflicting immediate, severe harm.?)<br />
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Standardizing Autonomy: Medical Communication, Liability, and the Doctrine of Informed Consent<br />
malpractice action filed against Dr. Bullis by Jandre disclosure? maintaining that while physicians may rely on<br />
included claims of negligent misdiagnosis as well as professional customs to adjudicate their treatment, care,<br />
negligence with respect to informed consent. In their and diagnosis, informed consent is governed by the<br />
request for review, the Physicians Insurance Company of reasonable patient?s desire for information ?regardless of<br />
Wisconsin (PIC) contended that the inconsistency of the what disclosures may be customary in the medical<br />
jury?s original verdicts rendered the informed consent profession.? 46 In Jandre, these two standards appear at<br />
claim invalid. Given that Dr. Bullis? diagnosis of Bell?s odds: Jandre?s (retrospective) wish to hear the full range of<br />
palsy, ? though incorrect, ? was found not to be negligent possible diagnoses, tests and treatments related to his<br />
by the professional standard applied to misdiagnosis symptoms undermined Dr. Bullis? diagnosis of Bell?s<br />
claims, PIC argued that Dr. Bullis had no enforceable duty palsy.<br />
to inform Jandre about the carotid ultrasound, a diagnostic The Wisconsin Supreme Court?s refusal to delimit risk<br />
test for an unrelated diagnosis of ischemic stroke. 43 materiality at once obstructed and weakened physicians?<br />
Physician-defendant Dr. Richards made a similar argument diagnostic prerogative. Despite insisting that its application<br />
in Martin, claiming that if his diagnosis and care was not of the reasonable patient standard would not impose strict<br />
negligent, then ?as a matter of law? he could not be found liability upon physicians, the Jandre court?s unusually<br />
negligent for ?failing to discuss a diagnosis which he did broad definition of materiality suggested otherwise. On the<br />
not make.? 44 However, as noted in Justice Roggensack?s one hand, the court took pains to emphasize the limits of<br />
dissenting opinion, while Fort Atkinson Hospital?s physicians?disclosure duties, reassuring doctors that they<br />
inability to treat intracranial bleeding (should it develop as had ?no duty to provide information to patients about<br />
a result of Ms. Martin?s concussion) could be construed as tests? that a reasonable patient would not consider<br />
a risk inherent in Dr. Richards? proposed treatment, in material. 47 At the same time, physicians could deem few<br />
Jandre?s case ischemic stroke represented a separate procedures definitively immaterial according to Jandre?s<br />
diagnosis altogether? and a discarded one at that. 45 The standard, whereby, ?[f]rom the perspective of the patient,<br />
Jandre court justified this widening of treatments and the materiality of risk has nothing to do with whether that<br />
diagnoses mandating disclosure under Wis. Stat. §448.30 risk comes from a potential condition that is related to the<br />
by distinguishing the discrete legal standards applicable to final diagnosis, as in Martin ? or from a potential<br />
Jandre?s respective claims of negligent diagnosis and condition that the physician has eliminated, though not<br />
43. Ibid., 813 N.W.2d 649. (?PIC?s basic argument is that it is anomalous to impose liability for breach of the duty to inform the patient when, as in<br />
the present case, the physician was not negligent in her care and diagnosis of the patient.?)<br />
44. Ibid., 813 N.W.2d 650.<br />
45. Ibid., 813 N.W.2d 680. (?In Martin, the recommended treatment for Ms. Martin?s head trauma was to remain at Fort Atkinson Hospital for<br />
careful observation. However, the risk of that treatment, i.e., a significant delay in surgery if it became necessary due to an intercranial bleed, was not<br />
explained.?)<br />
46. Ibid., 813 N.W.2d 649, 650. (?Under Wisconsin law, negligence in failing to abide by the professional standard of care and negligence in failing<br />
to obtain informed consent are two separate and distinct forms of malpractice, with two different standards of care. A failure to diagnose is one form<br />
of medical malpractice. A failure to obtain informed consent is another discrete form of malpractice, requiring a consideration of additional and<br />
different factors. There is nothing anomalous or inconsistent in holding that a reasonable patient may want information about alternative diagnostic<br />
techniques when the physician was not negligent in using one of multiple alternative, non-negligent techniques. To hold otherwise would<br />
substantially undercut the reasonable patient standard.?)<br />
47. Ibid., 813 N.W.2d 662. (?Physicians have no duty to provide information to patients about tests that would not be material to a reasonable patient.<br />
The holding in the present case does not give patients leave to request all conceivable tests. <strong>No</strong>r do physicians have a duty to perform tests that are<br />
not medically reasonable.?)<br />
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Standardizing Autonomy: Medical Communication, Liability, and the Doctrine of Informed Consent<br />
unequivocally, as in the present case." 48 According to<br />
Canterbury v. Spence, a risk is material when a reasonable<br />
person would consider it a significant factor in deciding<br />
whether to undergo the proposed treatment. 49 With the<br />
legal definition of materiality expanded under Jandre to<br />
include all risks posed by discarded diagnoses, physicians<br />
faced an impossible decision: inundate patients with the<br />
details of virtually every possible diagnosis, test, treatment<br />
and risk associated with their condition, relevant or not, or<br />
fear the specter of an informed consent lawsuit. This<br />
concern appeared in the Wisconsin Medical Society?s<br />
amicus brief, which predicted that the Jandre court?s<br />
interpretation of Wis. Stat. §448.30 would require<br />
physicians to tell their patients, ?I believe in my diagnosis<br />
malpractice suits. 51 Beyond the excessive, unsustainable<br />
economic costs imposed by defensive medicine, an<br />
average-length doctor?s appointment of 13 to 20 minutes<br />
simply would not afford enough time for physicians to<br />
disclose and explain the breadth of information required<br />
under Jandre?s reading of Wis. Stat. §448.30? let alone<br />
obtain their patient?s informed consent to proceed with<br />
treatment. 52 Moreover, physicians have argued that ?the<br />
very objective of the doctrine of informed consent [would]<br />
be undermined? by presenting patients with an inordinate<br />
amount of information surrounding alternate conditions<br />
beyond their diagnosis. 53 After all, many patients lack<br />
health literacy, the ability to process and understand<br />
essential health information. Rather than resulting in more<br />
but if my diagnosis is wrong, here are all the other things informed patients, Jandre-style disclosure? more<br />
you should consider,? thereby inviting patients (if<br />
reluctantly) to ?[usurp] their professional judgment.? 50<br />
Jandre?s overbroad application of informed consent<br />
threatened to harm physicians and patients alike, leading<br />
Wisconsin?s Hospital Association and Medical Society to<br />
lobby in favor of amending Wis. Stat. §448.30. The state?s<br />
medical associations expressed concern that Jandre would<br />
drive Wisconsin doctors to practice defensive medicine,<br />
unnecessary procedures conducted so as to avoid future<br />
information and greater choices? may leave patients<br />
overwhelmed and confused. 54 Indeed, psychological<br />
research has revealed that decision-makers become<br />
?rapidly overwhelmed by having to consider more than a<br />
few options,? and in situations perceived as risky,<br />
individuals often rely on emotional reactions (rather than<br />
objective facts) to drive their choices. 55 56 Existing<br />
evidence does not suggest that receiving ?an endless<br />
variety of choices and options? would equip patients to<br />
make maximally informed healthcare decisions. 57 Further,<br />
48. Jandre, 813 N.W.2d 656.<br />
49. Canterbury, 464 F.2d 772. (?A risk is material when a reasonable person, in what the physician knows or should know to be the patient?s<br />
position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy.?)<br />
50. Jandre, 813 N.W.2d 674. (?<strong>No</strong> other area of human interaction embraces the proposition that a professional must give a layperson the choice of<br />
usurping their professional judgment. There is no practical guidance on how to meet this obligation.?)<br />
51. Ginsberg, ?INFORMED CONSENT,? 392.<br />
52.Ginsberg, 393.<br />
53. Jandre, 813 N.W.2d 663. (?Both here and in Martin, the physicians argued that ?extending?the informed consent duty to include alternate modes<br />
of diagnosis unrelated to a non-negligent final diagnosis would unnecessarily inundate patients with more information than they can possibly<br />
manage. The physicians contend that in this way the very objective of the doctrine of informed consent will be undermined.?)<br />
54. Ginsberg, ?INFORMED CONSENT,? 393.<br />
55. Peter A. Ubel and George Loewenstein, ?The Role of Decision Analysis in Informed Consent: Choosing Between Intuition and Systematicity,?<br />
Social Science & Medicine 44, no. 5 (1997): 647.<br />
56. George Loewenstein et al., ?Risk as Feelings,? Psychological Bulletin 127, no. 2 (2001): 267.<br />
57. Jandre, 813 N.W.2d 673. (?Once diagnosis is determined to come within treatment, we are likely to be confronted with an endless variety of<br />
choices and options, some of which will entail no bodily invasion whatsoever. Many states appear not to embrace diagnosis in their informed consent<br />
statutes or cases for this very reason.?)<br />
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39
more care has not been shown to produce better results:<br />
though patients may gravitate toward the seeming security<br />
of ?more aggressive medical care,? patients in regions<br />
favoring aggressive care tend to have poorer health<br />
outcomes and lower satisfaction rates. 58 The quality of<br />
medical care is not meaningfully predicted by its quantity,<br />
nor does an influx of medical information result in<br />
higher-quality patient experiences.<br />
Fearing increased liability and anticipating disruptions to<br />
their professional practice, physician groups? efforts to<br />
revise Wis. Stat. §448.30 succeeded when Wisconsin<br />
adopted a new informed consent statute in 2013.<br />
Abandoning its prior reasonable patient standard, the<br />
updated statute instead deferred to the reasonable<br />
physician to determine informed consent, as well as<br />
clarifying that physicians must no longer disclose<br />
?information about alternate medical modes of treatment<br />
for any condition the physician has not included in his or<br />
her diagnosis at the time the physician informs the<br />
patient.? 59 While professional custom may not reliably<br />
dictate the most effective means of risk disclosure,<br />
Wisconsin?s lawmakers ultimately agreed that a legal<br />
remedy was the wrong prescription: ?[J]udges and juries<br />
ought not [play doctor].? 60<br />
Whose Reason Rules: State by State, Divergent<br />
Standards<br />
Standardizing Autonomy: Medical Communication, Liability, and the Doctrine of Informed Consent<br />
Since Canterbury v. Spence, two broad standards have<br />
emerged by which informed consent cases are adjudicated<br />
in the United States. Some states (about half) have<br />
privileged patients? self-determination over professional<br />
tradition by adopting a version of Canterbury?s reasonable<br />
patient standard, which gauges the adequacy of physicians?<br />
disclosure based on what a reasonable patient would<br />
consider important to their medical decision.<br />
61 62<br />
Meanwhile, other states have decided against the<br />
patient-centered standard, questioning its feasibility and<br />
fairness. Such states have determined that a<br />
physician-defendant?s disclosure should be judged against<br />
the customary practices of fellow doctors in the<br />
community, an approach known as the reasonable<br />
physician or professional standard. The distinction<br />
between these standards appears to tangibly influence the<br />
outcomes of informed consent lawsuits: research has<br />
demonstrated that states with a reasonable physician<br />
standard are significantly less likely to rule in patients?<br />
favor. 63<br />
Indiana is one such state. In the case of Culbertson v.<br />
Mernitz (1992), Patty Jo Culbertson?s cervix improperly<br />
adhered to the wall of her vagina following a bladder<br />
suspension and cryosurgery performed by Dr. Roland<br />
Mernitz? a complication for which Culbertson underwent<br />
subsequent surgery by another doctor. When Culbertson<br />
filed an informed consent suit against Dr. Mernitz claiming<br />
that he failed to disclose the surgery?s ?inherent risks and<br />
complications,? Dr. Mernitz requested summary judgment<br />
based on a medical review panel?s assessment of the<br />
case. 64 Despite acknowledging Dr. Mernitz?s lack of<br />
58. Elliott Fisher et al., ?The Implications of Regional Variations in Medicare Spending. Part 2: Health Outcomes and Satisfaction with Care,?<br />
Annals of Internal Medicine 138, no. 4 (February 2003):<br />
59. Wis. Stat. § 448.30, Informed consent.<br />
60. Jandre, 813 N.W.2d 671.<br />
61. Canterbury, 464 F.2d 787 (quoting Waltz & Scheuneman). (?In broad outline, we agree that ?[a] risk is thus material when a reasonable person, in<br />
what the physician knows or should know to be the patient?s position, would be likely to attach significance to the risk or cluster of risks in deciding<br />
whether or not to forego the proposed therapy.??)<br />
62. Sawicki, 9. (?In the United States, jurisdictions are more or less evenly divided between a patient-based standard and a physician-based standard<br />
for identifying the information that must be disclosed as part of the informed consent process.?)<br />
63. Studdert et al., ?Geographic Variation in Informed Consent <strong>Law</strong>,? 115?117.<br />
64. Culbertson v. Mernitz, 602 N.E.2d 99.<br />
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Standardizing Autonomy: Medical Communication, Liability, and the Doctrine of Informed Consent<br />
disclosure, the panel held that he did not violate ?the<br />
appropriate standard of care? because cervical adhesion to<br />
the vagina ?is not considered a risk of such surgery<br />
requiring disclosure to the patient.? 65 Considering this<br />
finding alongside Culbertson?s lack of opposing expert<br />
testimony, the trial court entered summary judgment in Dr.<br />
(e.g. lay juries) lack sufficient medical knowledge to<br />
accurately comprehend the relative significance of risks<br />
accompanying the majority of medical procedures. 69<br />
Indiana?s decisive instatement of the professional standard<br />
in Culbertson v. Mernitz countered the Canterbury court?s<br />
assertion that laypeople?s reasonableness should override<br />
Mernitz?s favor. However, the Fulton Circuit Court of medical custom to judge informed consent.<br />
Appeals went on to side with Culbertson, stating that the<br />
trial court jury had not addressed one key issue of<br />
fact? namely, whether the potential for cervical adhesion<br />
Hawaii?s legal history of informed consent tells a different<br />
story? one of patient as protagonist. In the state?s<br />
landmark case of Carr v. Strode (1995), when Robin Carr?s<br />
would pose a material risk to a vasectomy failed, he alleged that Dr. Walter Strode had<br />
reasonable patient. 66 In reviewing the case, the Indiana<br />
Supreme Court affirmed the trial court?s original decision<br />
to grant summary judgment. The supreme court held that<br />
most informed consent cases would require expert medical<br />
testimony to ascertain what a ?reasonably prudent<br />
physician would disclose? to inform the patient?s choice of<br />
treatment. 67 Rather than expect physicians to ?peer into the<br />
neglected to inform him of the risk of remaining fertile<br />
after the procedure. Carr testified that he would have<br />
decided against the surgery had he been made aware of this<br />
risk. 70 Although a trial jury of Hawaii?s First Circuit Court<br />
upheld Carr?s informed consent claim against Dr. Strode,<br />
the circuit court judge entered a judgment notwithstanding<br />
the verdict (JNOV) in Dr. Strode?s favor based on the<br />
brain? of a ?hypothetical ?reasonably prudent patient,?? the Plaintiff?s lack of expert medical evidence, and<br />
court reasoned that physicians? disclosure should be<br />
evaluated according to the professional norms of fellow<br />
doctors? although patient-plaintiffs may believe their<br />
?right of self-decision? to be profoundly hindered as a<br />
result. 68 Furthermore, the court maintained that laypeople<br />
conditionally granted Dr. Strode?s motion for a new trial<br />
pending the results of an appeal. 71 Indeed, the Hawaii<br />
Supreme Court?s prior ruling on the issue of informed<br />
consent pointed in Dr. Strode?s favor, having required<br />
medical testimony to establish failure to disclose: two<br />
65. Ibid.<br />
66. Ibid., 602 N.E.2d 99?100. (?The Court of Appeals agreed with the Culbertsons that the trial court had erroneously entered summary judgment on<br />
Counts II and IV because an issue of fact remained as to whether the risk of cervical adhesion to the vagina was a ?material risk.?The court further<br />
held that that issue was a question for the jury which does not require expert testimony as to materiality, although expert testimony might be required<br />
to establish the existence and extent of the risk.?)<br />
67. Ibid., 602 N.E.2d 100.<br />
68. Ibid., 602 N.E.2d 103. (?When viewed through the eyes of the physician, it is easy to see that a physician should not be required to guess or<br />
speculate as to what a hypothetical ?reasonably prudent patient?would ?need to know?in order to make a determination ? From a physician?s<br />
viewpoint, he should not be called upon to be a ?mind reader?with the ability to peer into the brain of a prudent patient to determine what such<br />
patient ?needs to know,?but should simply be called upon to discuss medical facts and recommendations with the patient as a reasonably prudent<br />
physician would. On the other hand, from the patient?s viewpoint, the physician should be required to give the patient sufficient information to<br />
enable the patient to reasonably exercise the patient?s right of self-decision in a knowledgeable manner.?)<br />
69. Ibid., 602 N.E.2d 104. (?We therefore hold that, except in those cases where deviation from the standard of care is a matter commonly known by<br />
lay persons, expert medical testimony is necessary to establish whether a physician has or has not complied with the standard of a reasonably prudent<br />
physician.?)<br />
70. Carr v. Strode, 904 P.2d 502. (?Carr further indicated that he would not have undergone the first vasectomy procedure if he had known that it<br />
might fail or allow him to become fertile in the future.?)<br />
71. Ibid., 904 P.2d 491.<br />
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years prior to Canterbury, in Nishi v. Hartwell (1970), the<br />
supreme court validated informed consent as a tort cause<br />
of action yet affirmed a trial court?s dismissal of the case<br />
because Plaintiff Nishi had failed to ?adduce expert<br />
concept of what a patient needs to hear is an insufficient<br />
metric by which to determine an individual patient?s<br />
informational needs. 75 While expert testimony would still<br />
be required to demonstrate the materiality of medical risk,<br />
medical testimony? to prove the inadequacy of following Carr v. Strode Hawaiian courts no longer invited<br />
physician-Defendant Dr. Hartwell?s disclosure. 72 Faced<br />
with a similar case in Carr v. Strode, however, Hawaii?s<br />
Supreme Court embraced Canterbury to overrule the<br />
state?s informed consent precedent, contrasting Indiana?s<br />
stubborn rejection of the patient standard that Canterbury<br />
medical professionals to establish the scope of reasonable<br />
disclosure on their patients?behalf.<br />
Alabama?s case of Fain v. Smith (1985) illuminates the<br />
challenge of legally defining not only reasonable<br />
disclosure, but reasonable consent on the patient?s<br />
sought to advance. Despite their pre-Canterbury<br />
behalf? particularly in the wake of a distressing medical<br />
application of the reasonable physician standard in Nishi v.<br />
Hartwell, Hawaii?s Supreme Court reversed the circuit<br />
court judge?s JNOV in Carr v. Strode and remanded the<br />
case for a new trial on the issue of informed consent, citing<br />
Canterbury?s reasoning as well as a ?growing nationwide<br />
trend [reflected in Hawaii?s lower court decisions] favoring<br />
the patient-oriented standard.? 73<br />
In their comparison of the physician- and patient-oriented<br />
standards, the Carr court opined that both ?seek to achieve<br />
the same goal? of ?[ensuring] informed and intelligent?<br />
patient decision-making. 74 Ideally, the scope of disclosure<br />
dictated by each standard would align in keeping with this<br />
shared aim. Still, acknowledging the significant difference<br />
between the two means of judging physicians?conduct, the<br />
court explained its choice to adopt the patient standard in<br />
Carr v. Strode by arguing that the medical community?s<br />
mistake. The Alabama Supreme Court heard the appeal of<br />
Plaintiff Duncan Fain, whose heart was erroneously<br />
punctured during a pulmonary arteriogram. After Fain?s<br />
informed consent case against physician-Defendant Dr. R.<br />
T. Smith was decided in Dr. Smith?s favor by a district<br />
court jury, on appeal Fain held that the jury had applied the<br />
wrong standard to assess proximate causation. 76 While<br />
Fain and Dr. Smith concurred that the risk of heart<br />
puncture should have been disclosed prior to the<br />
procedure, the two parties disputed whether Dr. Smith?s<br />
inadequate disclosure actually caused Fain?s injury: If Fain<br />
had been properly informed, would it have altered his<br />
decision to undergo the diagnostic test? Fain argued that<br />
the district court should have employed the subjective<br />
standard, by which the plaintiff?s own testimony<br />
constitutes sufficient proof that ?he would not have<br />
72. Ibid., 904 P.2d 494. (?Because Nishi had failed to adduce expert medical testimony regarding what physicians in the community disclosed to<br />
their patients regarding the particular medical procedure, we affirmed the trial court?s dismissal of Nishi?s complain, and by so holding, adopted the<br />
?physician-oriented?standard of disclosure for actions based on the doctrine of informed consent.?)<br />
73. Ibid., 904 P.2d 499.<br />
74. Carr v. Strode, 904 P.2d 498. (?Both standards, therefore, tempered by objectivity, seek to achieve the same goal, that is, to ensure that the<br />
patient?s decision to undergo a particular medical procedure is an informed and intelligent decision.?)<br />
75. Ibid., 904 P.2d 499. (?Moreover, not only should the patient?s decision remain at the forefront when assessing the physician?s disclosure to his or<br />
her patient in each case, but we also believe that, barring situations where the therapeutic privilege exception to the physician?s duty to disclose is<br />
applicable, what the medical community believes the patient needs to hear in order for the patient to make an informed decision is insufficient,<br />
without more, to resolve the question of what an individual patient reasonably needs to hear in order for that patient to make an informed and<br />
intelligent choice regarding the proposed medical treatment.?)<br />
76. Fain v. Smith, 479 So. 2d 1154. (?Plaintiffs contend in brief that the objective standard does away with consideration by the jury of the patient?s<br />
testimony concerning his thoughts.?)<br />
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consented to the procedure had he been advised of the<br />
particular risk in question.? 77 On the other hand, according<br />
to the objective standard, the jury must consider factors<br />
beyond the patient?s self-serving testimony to ascertain,<br />
more generally, how a ?reasonable person in the patient?s<br />
position? would have responded to the disclosure of all<br />
material risks. 78 Alabama?s Supreme Court affirmed the<br />
district court?s judgment and upheld the objective standard,<br />
deeming it ?fairer to both plaintiff and defendant.? 79<br />
While it is true that a patient-plaintiff?s account of what<br />
they would have done is unavoidably shaped, at least to<br />
some degree, by 20/20 hindsight, Justice Jones and Adams?<br />
dissenting opinions in Fain v. Smith raised the point that<br />
true objectivity in discerning causation may be virtually<br />
impossible. 80 Indeed, given that prudent patients vary in<br />
their responses to risk disclosure, Jones found the so-called<br />
objective standard to be fundamentally subjective with<br />
respect to juries, essentially tasking ?each juror ? with<br />
subjectively determining what he or she would have<br />
done.? 81 Furthermore, even under the objective standard,<br />
the Alabama Supreme Court stated that the factfinder in an<br />
informed consent case must surmise the decision of a<br />
hypothetical patient who shares the plaintiff?s<br />
?idiosyncrasies,? ?religious beliefs,? and all other relevant<br />
traits. 82 While Adams argued that a patient-plaintiff?s<br />
testimony alone should not conclusively dictate causation,<br />
he also claimed that no standard filtered so narrowly<br />
through the patient?s point of view can call itself<br />
?objective?: He wrote, ?When we build into the standard,<br />
as we have done here, ?all of the characteristics of the<br />
plaintiff,? ? we no longer have the reasonable person<br />
standard.? 83 Finally, Jones contended, courts should not<br />
seek to honor the self-determination of ?reasonable<br />
persons alone.? Despite its claims of objective fairness,<br />
Jones asserted that the informed consent doctrine advanced<br />
by Canterbury chiefly ?[safeguards] the right of individual<br />
choice, even where it may appear idiosyncratic? or even<br />
unreasonable. 84 The question remains, however: Should<br />
informed consent law principally instruct doctors to guide<br />
or follow the path of individuals?unique choices?<br />
Where Will Canterbury Take Us?<br />
Only a small fraction of the United States population<br />
possesses expert medical knowledge, yet we are almost all<br />
patients at some point, faced with medical decisions that<br />
weigh heavily on our lives. In the landmark U.S. Supreme<br />
Court case of Dent v. West Virginia (1889), which<br />
empowered states to regulate the medical profession, the<br />
Court described doctors?ubiquitous influence, ?Every one<br />
may have occasion to consult [a physician], but<br />
comparatively few can judge of the qualifications of<br />
learning and skill which he possesses.? 85 The foundation<br />
of modern-day informed consent law, Canterbury v.<br />
Spence (1972) affirmed the principle that no individual<br />
should be expected to relinquish their claim to bodily<br />
autonomy upon entering the doctor?s office: ?Every human<br />
being of adult years and sound mind has a right to<br />
77. Fain v. Smith, 479 So. 2d 1152.<br />
78. Ibid., 479 So. 2d 1155.<br />
79. Ibid., 479 So. 2d 1154.<br />
80. Ibid.<br />
81. Ibid., 479 So. 2d at 1159. (?If there is no one reasonable person, each juror is left with subjectively determining what he or she would have done<br />
(e.g., ?Well, I?m reasonable, so what would I have done in this situation??).?)<br />
82. Ibid., 479 So. 2d 1155.<br />
83. Fain, 479 So. 2d 1164.<br />
84. Ibid., 479 So. 2d 1158 (citing Katz).<br />
85. Dent v. West Virginia, 129 U.S. 122.<br />
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Standardizing Autonomy: Medical Communication, Liability, and the Doctrine of Informed Consent<br />
determine what shall be done with his own body.? 86 Within<br />
medical malpractice law, the doctrine of informed consent<br />
Patients? Jurors? Doctors? Standardizing a patient?s<br />
hypothetical past decision-making is by no means an exact<br />
attempts to foster and protect informed patient science. <strong>No</strong> metric, legal or otherwise, is capable of<br />
decision-making. Ideally, informed consent law equips<br />
patients with the information they need to determine the<br />
direction of their medical treatment without compromising<br />
physicians?ability to provide quality care.<br />
Since Canterbury, however, the relationship between<br />
medicine and law has remained more adversarial than<br />
synergistic. In a dramatic tug-of-war that literally rewrote<br />
the state?s informed consent policy, Wisconsin?s courts and<br />
doctors spent decades haggling over the highly contested,<br />
inherently personal territory of what a reasonable patient<br />
needs to know. The Indiana Supreme Court?s refusal to<br />
cast physicians as mind readers in Culbertson v. Mernitz<br />
and Hawaii?s commitment to following the mores of<br />
patient autonomy in Carr v. Strode illustrate the nation?s<br />
split between physician- and patient-centered disclosure<br />
standards? seemingly, a question of whose rationale a<br />
state?s courts should champion.<br />
calculating the degree to which an individual?s medical<br />
choices would have been impacted by a risk unknown to<br />
them at the time.<br />
When the law of informed consent purports to know better<br />
than physicians and patients alike, the doctrine?s original<br />
goal is hindered. In the recent case of EMW Women?s<br />
Surgical Center, P.S.C. v. Beshear (2019), the U.S. Sixth<br />
Circuit Court of Appeals invoked Canterbury to justify<br />
upholding Kentucky?s Ultrasound Informed Consent Act<br />
(H.B. 2), a statute that required doctors to perform and<br />
display an ultrasound, explain the images in their own<br />
words, and play the fetal heartbeat out loud before<br />
obtaining an abortion patient?s consent. 87 Although H.B. 2<br />
mandated disclosing the consequences of abortion for the<br />
fetus? not the patient undergoing the procedure? the Sixth<br />
Circuit nonetheless affirmed the state?s right to compel<br />
physicians? divulgence of medical information deemed<br />
?truthful, non-misleading, and relevant.?<br />
But, is the issue quite so simple? Should it be? Medical<br />
Citing<br />
Canterbury?s assertion that medical custom should not<br />
informed consent is, after all, a two-way street,<br />
dictate the bounds of mandatory disclosure, the court went<br />
encompassing both physicians? disclosure of risk<br />
so far as to deem physicians? qualms with the statute<br />
information and patients? resulting treatment decisions.<br />
irrelevant.<br />
Fain v. Smith rested on whether the divulgence of an<br />
By ?eviscerating physician discretion,?<br />
however, the court precluded physicians from respecting<br />
undisclosed material risk would have caused the<br />
their patients? autonomy, thus undermining the very<br />
patient-plaintiff to withhold consent, thus preventing his<br />
objective of informed consent.<br />
injury. The Alabama Supreme Court endeavored to<br />
Beyond infringing on<br />
physicians?professional expertise? about one-third of the<br />
determine who should be trusted to verify causation:<br />
information that abortion informed consent statutes force<br />
86. Canterbury, 464 F.2d 780 (citing Schloendorff v. Society of New York Hospital (1914)).<br />
87. EMW Women?s Surgical Center, P.S.C. v. Beshear, 920 F.3d 423. (?Under [Roe v. Wade (1973)], a woman has the right to choose to have an<br />
abortion. To inform that choice, the Commonwealth of Kentucky directs a doctor, before performing an abortion, to ascultate (or make audible) the<br />
fetal heartbeat, perform an ultrasound, and display and describe the ultrasound images to the patient.?)<br />
88. Ibid.<br />
89. Ibid., 920 F.3d 444. (?To give the patient more information that is truthful, non-misleading, and relevant to a medical procedure is the epitome of<br />
ensuring informed consent.?)<br />
90. Ibid., 920 F.3d 439. (?If the validity of an informed-consent law depended on whether doctors agreed with the law? or whether the law required<br />
disclosures that, with no law, the doctor would disclose anyway? there would be no need for the law to supplement custom.?)<br />
91. Ibid., 920 F.3d 447 (Donald, B., dissenting). (?Under the prevailing standard of care, informed consent requires respect for the patient?s<br />
autonomy and sensitivity to the patient?s condition. Physician discretion is vital, but H.B. 2 eviscerates physician discretion.?)<br />
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doctors to disclose is medically inaccurate? such an increasingly crowdsourced medical knowledge and<br />
approach to informed consent also threatens to erode widespread misinformation, providers should be held<br />
patients? trust in medicine through inflicting needless responsible for disclosing the baseline risks and<br />
emotional injury. 92 One abortion patient subject to a Texas alternatives associated with a procedure. 97 Yet, physician<br />
statute?s consent requirements recalled her nightmarish disclosure does not guarantee patient understanding, nor<br />
experience: ?The description the doctor provided was does knowledge of medical risk ensure a positive outcome.<br />
perhaps the most devastating part because although our True informed consent? awareness of the known,<br />
baby was profoundly ill, he had healthy organs too. So, the acceptance of the unknown? relies on legal questions, not<br />
doctor was forced to describe ? and I to hear ? that he had legal answers.<br />
a well-developed diaphragm ? His words were<br />
unwelcome and I felt completely trapped.? 93<br />
In order to facilitate more effective patient-provider<br />
communication, informed consent law must recognize its<br />
own limits. Malpractice liability already exacts a high<br />
economic cost on the United States healthcare system: A<br />
2010 study found that ?medical liability system costs,<br />
including defensive medicine? comprise 2.4 percent of the<br />
nation?s total healthcare spending, upwards of $55.6 billion<br />
annually. 94 If the doctrine of informed consent expanded to<br />
mandate the disclosure of treatment-adjacent information<br />
such as medical costs, financial conflicts of interest, and<br />
physicians? personal and professional history (as some<br />
ethicists advocate), the already blurry lines distinguishing<br />
material from immaterial and reasonable from<br />
unreasonable would dissolve, rendering a fair, efficient<br />
litigation model unachievable. 95 Moreover, opening the<br />
informed consent floodgates would regiment a clinical<br />
conversation that, like the idiosyncratic patient themselves,<br />
escapes standardization. As Sawicki suggests, patient- and<br />
physician- oriented disclosure standards need not be<br />
viewed in opposition; indeed, a patient?s ?informational<br />
needs? cannot be isolated from the practices of their<br />
surrounding medical community. 96 In an era of<br />
92. Daniels et al., ?Informed or Misinformed Consent?,? 181.<br />
93. Beshear, 920 F.3d 458.<br />
94. Michelle M. Mello et al., ?National Costs Of The Medical Liability System,? Health Affairs 29, no. 9 (September 2010): 1569.<br />
95. Sawicki, 26.<br />
96. Ibid., 16.<br />
97. Briony Swire-Thompson and David Lazer, ?Public Health and Online Misinformation: Challenges and Recommendations,? Annual <strong>Review</strong> of<br />
Public Health 41, no. 1 (April 2, 2020): ##.<br />
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THE LEGAL PRECEDENTS FOR<br />
POLICE BRUTALITY:<br />
THE ENDURING LEGACY OF THE<br />
OBJECTIVE REASONABLENESS<br />
STANDARD<br />
Deepak Gupta<br />
ABSTRACT<br />
As cases of police brutality continue to plague the criminal justice system, it is important to understand the legal<br />
precedents and history that have allowed this issue to continue. After studying the modern applications of landmark<br />
Supreme Court cases, we can conclude that the objective reasonableness standard established in Graham v. Connor<br />
(1989) has played a major role in allowing police to perpetrate acts of violence without consequence in Section 1983<br />
litigation. This particular precedent has resulted in the vast majority of police brutality cases being analyzed under the<br />
Fourth Amendment. Most notably, courts are prevented from considering the intentions of the offending officers and<br />
instead focus solely on officers?decisions in ?split-second? situations. Therefore, this method fails to accurately capture<br />
the role of implicit bias in policing. In order to ensure a fair future for the prosecution of police officers, courts should<br />
instead rely on the Fourteenth Amendment?s Equal Protection Clause.<br />
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The Legal Precedents for Police Brutality: The Enduring Legacy of the Objective Reasonableness Standard<br />
Introduction<br />
George Floyd, Breonna Taylor, Jacob Blake, Tamir Rice,<br />
Michael <strong>Brown</strong>, Eric Garner? these are just a few of the<br />
names that have become memorialized in a country that<br />
grapples with an epidemic of police brutality. With the<br />
expansion of the Black Lives Matter movement this past<br />
summer, the United States must now confront greater calls<br />
than ever before to reform the carceral state and nature of<br />
policing. To understand the system that allows police<br />
brutality to occur and propose solutions, one must analyze<br />
the essential legal precedents that protect police officers<br />
from facing the consequences of gross miscarriages of<br />
justice. In this paper, I will argue that the objective<br />
reasonableness standard established in Graham v. Connor<br />
(1989) has played a major role in allowing police to<br />
perpetrate acts of violence without ramifications in Section<br />
1983 litigation. Moreover, the consolidation of most police<br />
A Brief History of 42 U.S.C. Section 1983 and Qualified<br />
Immunity<br />
To understand the legal framework behind police brutality,<br />
it is first necessary to understand 42 U.S.C. Section 1983.<br />
After the Civil War, testimonies of atrocities committed<br />
against African Americans in the South alarmed President<br />
Ulysses S. Grant and other Republicans. 1 Thus, they<br />
passed the Civil Rights Act of 1871 (otherwise known as<br />
the Ku Klux Klan Act) and included 42 U.S.C. Section<br />
1983 so that those targeted for their identity could claim a<br />
civil cause of action against the liable party. 2 Litigation<br />
under Section 1983 allows individuals to sue state<br />
government employees and other officials for civil rights<br />
violations and enforces Section 1 of the Fourteenth<br />
Amendment, preventing any state from engaging in the<br />
deprivation of life, liberty, or property without due process<br />
or equal protection of the law. 3<br />
brutality cases under Fourth Amendment analysis fails to<br />
<strong>No</strong>t many lawsuits were filed under Section 1983 until the<br />
accurately capture the role of implicit bias, which would be<br />
1960s. This change occurred as a result of Monroe v. Pape<br />
better addressed under the Fourteenth Amendment?s Equal<br />
(1961), a case regarding thirteen Chicago police officers<br />
Protection Clause.<br />
who searched the wrong home without a warrant. The<br />
First, I will review the history of 42 U.S.C. Section 1983,<br />
qualified immunity, and the objective reasonableness<br />
standard established by Graham v. Connor. Then, I will<br />
explore the effects of legal precedent on modern cases<br />
involving excessive force by police. Finally, I conclude by<br />
Supreme Court upheld the respondent?s lawsuit and<br />
determined that authorities acting ?under color of? state<br />
authority can be held personally liable through Section<br />
1983. 4 Subsequent cases advanced the applications of<br />
Section 1983. Monell v. Department of Social Services<br />
underscoring the importance of the Fourteenth (1978) determined that municipalities and local<br />
Amendment in allowing for advocates and policymakers to<br />
succeed in reforming this corrupted system.<br />
governmental units may be sued if their policies are in<br />
clear violation of an individual?s rights. 5 Together, Monroe<br />
and Monell played instrumental roles in allowing for<br />
claims of excessive force against police departments to fall<br />
under Section 1983 litigation.<br />
1. ?The Enforcement Acts of 1870 and 1871,? United States Senate, June 5, 2020, https://www.senate.gov/artandhistory/history/common/generic/<br />
EnforcementActs.htm.<br />
2. Ibid.<br />
3. ?A Section 1983 Primer (1): History, Purposes and Scope,? Nahmod <strong>Law</strong>, <strong>No</strong>vember 7, 2009, https://nahmodlaw.com/2009/10/29/a-section-1983-<br />
primer-1-history-purposes-and-scope/.<br />
4. Monroe v. Pape, 365 U.S. 167 (1961).<br />
5. Schools Legal Services Staff of the Orange County Department of Education,?Liability Under Section 1983,? (legal document, Orange County<br />
Department of Education, 2003), 2.<br />
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The Legal Precedents for Police Brutality: The Enduring Legacy of the Objective Reasonableness Standard<br />
Cases regarding 42 U.S.C. Section 1983 are also governed<br />
by another concept: qualified immunity. The doctrine of<br />
qualified immunity was originally established by Pierson<br />
v. Ray (1967), in which police in Jackson, Mississippi,<br />
arrested a group of clergymen, including three black<br />
priests, after the group attempted to use a racially<br />
segregated bus terminal. 6 This arrest was based on a state<br />
code that outlawed congregating with others in a public<br />
place, breaching the peace, and refusing to move when<br />
ordered by a police officer. The clergymen were later<br />
sentenced to jail by a local judge. They filed suit against<br />
both the police department and judge under Section 1983<br />
on the basis of false arrest and imprisonment. The Court of<br />
Appeals for the Fifth Circuit maintained that the judge was<br />
immune from liability based on prior Supreme Court<br />
precedent (Bradley v. Fisher (1871)). 7 With regards to the<br />
police, the appeals court found the Mississippi code<br />
unconstitutional yet determined that the police officers had<br />
not acted wrongfully since the police had no way of<br />
knowing which laws were unconstitutional when arresting<br />
the clergymen.<br />
Upon hearing the case, the Supreme Court agreed that the<br />
judge was immune from liability but clarified that the<br />
police officers were not entitled to absolute immunity.<br />
Rather, officers were entitled to immunity when acting<br />
under laws they reasonably believed to be constitutional<br />
even if said laws are later determined otherwise:<br />
A policeman's lot is not so unhappy that he must<br />
choose between being charged with dereliction of duty<br />
if he does not arrest when he has probable cause, and<br />
being mulcted in damages if he does. Although the<br />
matter is not entirely free from doubt, the same<br />
consideration would seem to require excusing him<br />
from liability for acting under a statute that he<br />
reasonably believed to be valid but that was later held<br />
unconstitutional, on its face or as applied . . . . We hold<br />
that the defense of good faith and probable cause,<br />
which the Court of Appeals found available to the<br />
officers in the common-law action for false arrest and<br />
imprisonment, is also available to them under Section<br />
1983. 8<br />
The Supreme Court finally remanded the case for retrial<br />
given evidence that racial motivations influenced the jury.<br />
In the process, the Court?s ruling established the doctrine<br />
of qualified immunity for police officers under Section<br />
1983.<br />
The first major Supreme Court case relating Section 1983<br />
to the authoritative use of force was Tennessee v. Garner<br />
(1985). 9 On October 3, 1974, Memphis Police Officers<br />
Elton Hymon and Leslie Wright responded to reports of a<br />
home break-in. 10 Hymon explored behind the house and<br />
heard a door slam. He then saw 15-year-old Edward<br />
Garner run across the backyard. Using a flashlight, Hymon<br />
was able to see Garner's face and hands and was<br />
?reasonably sure? that Garner was unarmed. He called out<br />
for Garner to halt but Garner began to climb over a<br />
chain-link fence. Then, Hymon fatally shot Garner in the<br />
back of the head. His decision to shoot was based on a<br />
Tennessee statute and police department policy stating that<br />
if, ?after notice of the intention to arrest the defendant, he<br />
either flees or forcibly resists, the officer may use all the<br />
necessary means to effect the arrest.? 11 The authorities<br />
later found ten dollars and a purse on Garner?s body.<br />
Though Hymon suspected Garner of burglarizing the<br />
house, he did not have proof at the time of the shooting.<br />
Garner?s father filed suit under 42 U.S.C. Section 1983,<br />
alleging violations of his son's rights under the Fourth,<br />
Fifth, Sixth, Eighth, and Fourteenth Amendments. The<br />
district court ruled in favor of the defendants since Hymon<br />
was acting under state and local policy. However, the Sixth<br />
Circuit Court of Appeals reversed the judgment and held<br />
that killing is a form of ?seizure.? The court determined<br />
7. Ibid.<br />
8. Ibid.<br />
9. Brandon Garrett and Seth Stoughton, ?A Tactical Fourth Amendment,? Virginia <strong>Law</strong> <strong>Review</strong> 103, no. 2 (April 2017): 224.<br />
10. Tennessee v. Garner, 471 U.S. 1 (1985).<br />
11. Ibid., 471 U.S. 3.<br />
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that such seizure is constitutional only when reasonable, followed Graham and his friend and pulled them over. As<br />
and based on the mildness of Garner?s crime and the fact Berry attempted to explain Graham?s diabetes to Connor,<br />
that he was unarmed, the court found that Hymon?s actions Graham, still in need of insulin, exited the car and ran<br />
violated the Fourth Amendment. 12<br />
around it twice before passing out on the sidewalk.<br />
The Supreme Court affirmed the Sixth Circuit's decision<br />
and ruled in favor of Garner?s father. 13 Although Hymon<br />
believed Garner was the suspected burglar, that did not<br />
alone justify the use of force. On the contrary, Hymon had<br />
enough reason to believe that the suspect was unarmed.<br />
Therefore, the Supreme Court concluded that by shooting<br />
an unarmed, fleeing Garner, Hymon had violated Garner?s<br />
rights under the Fourth Amendment. The Court?s<br />
interpretation of the Fourth Amendment provided that the<br />
use of lethal force is unconstitutional unless it is necessary<br />
to prevent escape or the suspect poses a threat to others. 14<br />
While Garner established precedent in restricting the use of<br />
deadly force, it simultaneously introduced the notion of<br />
?reasonableness? into the assessment of a police officer?s<br />
actions.<br />
Graham v. Connor (1989) expanded on this notion by<br />
establishing the objective reasonableness standard. 15 In<br />
1984, Dethorne Graham, a diabetic living in Charlotte,<br />
<strong>No</strong>rth Carolina, suffered an insulin reaction and asked his<br />
friend William Berry to drive him to the nearest grocery<br />
store so he could purchase orange juice. 16 Upon arriving at<br />
the store and seeing that the line to pay was long, Graham<br />
quickly exited and asked Berry to drive him to another<br />
store. Officer M.S. Connor had been watching Graham<br />
enter and exit quickly and became suspicious. Connor<br />
Connor handcuffed Graham and called additional officers<br />
to the scene. 17 Once they arrived and Graham regained<br />
consciousness, the officers moved him to the hood of<br />
Berry?s car. Graham attempted to reach into his wallet and<br />
show his diabetic identification, but an officer shoved his<br />
head down and instructed him to ?shut up.? Graham then<br />
vigorously resisted as officers moved him into the police<br />
car. After finally determining that Graham had not<br />
committed any crime, Officer Connor returned him home.<br />
During the altercation, Graham suffered multiple injuries,<br />
including a broken foot, cuts on his wrist, and a bruised<br />
forehead. He filed suit under Section 1983 against the<br />
officers and alleged that their use of force during his arrest<br />
was ?excessive? and ?unreasonable,? thereby violating his<br />
Fourteenth Amendment rights. 18<br />
The district court ruled in favor of the officers on the basis<br />
of the due process standard articulated by the Second<br />
Circuit in Johnson v. Glick (1973). 19 The four-part test,<br />
cited by this court in Graham v. Charlotte, assessed:<br />
1) the need for the application of force;<br />
2) the relationship between that need and the amount<br />
of force that was used;<br />
3) the extent of the injury inflicted;<br />
4) whether the force was applied in a good faith effort<br />
to maintain and restore discipline or maliciously and<br />
12. Ibid.<br />
13. Ibid., 471 U.S. 5.<br />
14. Ibid., 471 U.S. 8.<br />
15. Charles Lane, ?A 1989 Supreme Court Ruling Is Unintentionally Providing Cover for Police Brutality,? The Washington Post, June 9, 2020,<br />
https://www.washingtonpost.com/opinions/a-1989-supreme-court-ruling-is-unintentionally-providing-cover-for-police-brutality/2020/06/08/91cc7<br />
b0c-a9a7-11ea-94d2-d7bc43b26bf9_story.html.<br />
16. Graham v. Connor, 490 U.S. 386 (1989).<br />
17. Ibid., 490 U.S. 389.<br />
18. Ibid.<br />
19. ?You Decide: Did the Officers Use Excessive Force?? University of Minnesota Department of Sociology, accessed December 3, 2020,<br />
http://users.soc.umn.edu/~samaha/cj6e/ch06_you_decide_excessive_force.htm.<br />
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sadistically for the very purpose of causing harm. 20 Altogether, the greatest difference between the Glick test<br />
and Graham?s Fourth Amendment analysis is that, under<br />
Graham appealed to the Fourth Circuit Court of Appeals,<br />
the latter, the intent of a police officer is not relevant in<br />
which affirmed the district court?s judgment and further<br />
assessing reasonableness. The former?s criteria assess<br />
endorsed the applicability of the four-factor test to claims<br />
whether force was applied in ?good faith? or ?maliciously<br />
of unconstitutionally excessive force. The Fourth Circuit<br />
and sadistically? in its substantive due process analysis.<br />
held that since a reasonable jury applying the test could not<br />
However, this is irreconcilable with the Fourth<br />
find Connor?s use of force ?constitutionally excessive,?<br />
Amendment analysis because the ??malicious and sadistic?<br />
then the original ruling should be upheld. Graham filed a<br />
factor concerns the subjective motivations of the individual<br />
petition for certiorari, which the Supreme Court granted.<br />
officers.? 25 Moreover, ?the calculus of reasonableness?<br />
In the majority opinion authored by Chief Justice William<br />
must consider that officers are often caught in<br />
Rehnquist, the Court reversed the Fourth Circuit Court of<br />
Appeals?decision. 21 The Court found that the due process<br />
approach established by Johnson v. Glick cannot be<br />
?split-second? situations where they are forced to make<br />
decisions based on ?tense, uncertain, and rapidly evolving?<br />
circumstances.<br />
applied indiscriminately to cases of excessive force by<br />
Modern Legal Consequences of Objective<br />
police officers because there must be a constitutional basis<br />
for such claims. 22 Reasonableness<br />
The Court determined that Graham?s<br />
claim instead fell under the Fourth Amendment given that<br />
he was invoking his right to ??to be secure in [his] persons<br />
? against unreasonable ? seizures.?? 23 Using the Fourth<br />
The judicial legacy of Graham v. Connor lies in its<br />
frequent citations in lower court decisions on police<br />
brutality. The Supreme Court?s objective reasonableness<br />
Amendment, the Court determined that the standard has bound the judicial system toward favoring<br />
?reasonableness? of an officer?s actions must be assessed<br />
based on the facts and circumstances presented to the<br />
officer in the moment? disregarding analysis of intent or<br />
hindsight. In other words, one must determine whether an<br />
officer?s actions are ?objectively reasonable? based on the<br />
suspect?s threat to others, active resistance, and severity of<br />
law enforcement. To fully understand the municipal effects<br />
of the Court?s ruling, one must review additional Supreme<br />
Court and district level cases that cite Graham. Maney v.<br />
Garrison (2017) and Mullenix v. Luna (2015) are two<br />
recent cases with outcomes influenced by the 1989<br />
landmark decision.<br />
the crime committed. Therefore, the Court ruled that the<br />
To begin with, Maney v. Garrison underscores how the<br />
Fourth Circuit erred in using the Johnson v. Glick four-part<br />
notion of objective reasonableness still has a component of<br />
test because it considered intent and subjective motivations<br />
subjectivity. On May 4, 2010, Officer Terence Garrison<br />
(which play no role in Fourth Amendment analysis). Given<br />
and his police dog Bikkel tracked a robbery suspect to an<br />
this, the Court remanded the case for reconsideration.<br />
abandoned house in High Point, <strong>No</strong>rth Carolina. 26 At the<br />
20. Graham v. Charlotte, 827 F.2d 945 (1987).<br />
21. Graham v. Connor, 490 U.S. 392.<br />
22. Ibid., 490 U.S 396.<br />
23. Ibid.<br />
24. Ibid.<br />
25. Ibid.<br />
26. Maney v. Garrison, 681 Fed. Appx. 210 (2017).<br />
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front stoop, Bikkel noticed an individual crouched behind<br />
a nearby bush and began to bite him. The victim was a<br />
homeless man named Christopher Maney rather than the<br />
suspect. Garrison quickly realized that Maney did not<br />
match the physical description of the suspect he and Bikkel<br />
were tracking. However, fearing that Maney might still<br />
pose a threat, he ordered him to show his hands before<br />
calling off the dog. During that time, Bikkel continued to<br />
bite Maney?s head, tearing away a two-square-inch section<br />
of hair, skin, and tissue that ultimately required a nearly<br />
sixteen-inch skin graft. 27<br />
Afterward, Maney filed suit against Garrison under Section<br />
1983, alleging that the officer violated his Fourth<br />
Amendment right to be free from unreasonable seizure.<br />
The District Court granted summary judgment in favor of<br />
Garrison, which the Fourth Circuit Court of Appeals later<br />
affirmed. In the majority opinion, the appeals court found<br />
that, although Maney had not committed any crime,<br />
Garrison had reason to suspect that he might have posed a<br />
danger given the circumstances in which he was found.<br />
Garrison had every indication that the suspect he was<br />
searching for was concealed somewhere in the darkness<br />
nearby when Bikkel attacked Maney. Although Garrison<br />
quickly determined that Maney was not the suspect, the<br />
court found that the uncertainty Garrison faced in the<br />
moment justified his actions:<br />
Who was this person crouching behind a bush, in the<br />
dark, near an abandoned house? Why did he continue<br />
hiding as police approached? Why did Bikkel confuse<br />
him for the suspect? Was he acting in concert with the<br />
suspect? Was the suspect still in fact nearby? And, in<br />
about as much time as it takes to type (let alone to<br />
answer) those questions, Appellee sought to resolve<br />
perhaps the most pressing uncertainty of all ?<br />
whether the unknown individual hiding from police, in<br />
the spot where Bikkel had tracked the robbery suspect,<br />
was a threat to officer safety. As soon as Appellee<br />
determined the answer to that question was ?no,?it is<br />
undisputed that he called Bikkel off and restrained the<br />
animal. In sum, Appellee was faced with a situation<br />
that was tense, uncertain, and rapidly evolving ?<br />
precisely the context in which the Supreme Court has<br />
counseled us to make allowances for on-the-scene<br />
decisions about the amount of force that is necessary,<br />
?even if it may later seem unnecessary in the peace of a<br />
judge's chambers.? 28<br />
In this instance, Graham?s objective reasonableness<br />
standard removed hindsight analysis from consideration<br />
and justified the officer?s actions given that there was a<br />
reasonable chance that Maney could have been dangerous.<br />
According to the court, the hazardous reality of police<br />
work prevents officers from engaging in the ?unrealistic<br />
second-guessing? of the use of force. 29 Although the court<br />
considered Garrison?s actions to be reasonable, the court?s<br />
justification emphasized negative hypotheticals and<br />
entirely discarded the truth. By assuming that Maney was<br />
suspicious, the majority valued the worst possible scenario<br />
over reality. According to the dissenting opinion, the<br />
qualifications for what actions were reasonable in<br />
Garrison?s case were debatable. Many indicators showed<br />
that the victim was not a threat to the officer. Maney bore<br />
no resemblance to the suspect, yet the officer still chose to<br />
treat him with suspicion. The dissenting opinion makes<br />
clear that although Garrison reasonably assumed that<br />
Maney was guilty, he could have also reasonably assumed<br />
that he was innocent, writing that ?common sense would<br />
dictate that use of a violent canine attack to address those<br />
fears was an overreaction.? 30 The outcome of Maney<br />
emphasizes how the objective reasonableness standard<br />
allows officers the right to presume guilt and act<br />
accordingly with minimal repercussions.<br />
Mullenix v. Luna is slightly different in that it raises<br />
27. Mark Joseph Stern, ?Appeals Court: Homeless Man Has <strong>No</strong> Right to Sue Cop Who Let Police Dog Maul Him,? Slate Magazine, March 10, 2017<br />
https://slate.com/news-and-politics/2017/03/appeals-court-rules-homeless-man-cannot-sue-cop-who-let-police-dog-maul-him.html.<br />
28. Maney v. Garrison, 681 Fed. Appx. 220.<br />
29. Ibid., 681 Fed. Appx. 222.<br />
30. Ibid., 681 Fed. Appx. 234.<br />
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questions regarding the role of objective reasonableness in use of deadly force on a fleeing, dangerous suspect<br />
granting qualified immunity. On March 23, 2010, a Texas violated the Fourth Amendment. 34 The essential inquiry<br />
police officer approached Israel Leija, Jr. at a restaurant was whether the Fourth Amendment prohibited Mullenix?s<br />
with a warrant for his arrest. 31 Leija subsequently led the actions given the circumstances he faced. 35 There was no<br />
police on a high-speed chase while calling the police excessive force precedent guiding the assessment of the<br />
dispatcher and threatening to shoot the officers chasing reasonableness of Mullenix?s actions. However, given the<br />
him. The officers continued their pursuit and deployed circumstances, the Court found that his actions fell<br />
spike strips. Trooper Chadrin Lee Mullenix decided to somewhere along the ?hazy border between excessive and<br />
shoot at Leija?s car in order to stop it. Before receiving acceptable force.? 36 Therefore, the Court reversed the<br />
permission from his supervisor, Mullenix positioned lower court?s ruling and found that qualified immunity was<br />
himself on an overpass. Witnesses testified that Mullenix justified.<br />
could hear his supervisor say that he should ?stand by? and<br />
Justice Sonia Sotomayor?s strong dissent highlights the<br />
?see if the spikes work first.? 32 When Leija?s car<br />
broader political implications of granting Mullenix<br />
approached, Mullenix fired six shots. The car then struck<br />
qualified immunity. Sotomayor found that there was no<br />
the spike strips, hit the median, and rolled several times.<br />
government interest in shooting Leija rather than waiting<br />
Authorities later determined that Leija died due to<br />
for the spike strips to take effect. Additionally, Sotomayor<br />
Mullenix?s bullets. Beatrice Luna, a representative of<br />
rejected the notion that Mullenix?s decision was<br />
Leija?s estate, filed suit against Mullenix under 42 U.S.C.<br />
?split-second? given that he spent several minutes<br />
Section 1983 and argued that Mullenix had violated Leija?s<br />
positioning himself on the overpass with the intention of<br />
Fourth Amendment rights by employing excessive force.<br />
shooting the vehicle and had solicited his supervisor for<br />
The district court denied Mullenix?s motion for summary<br />
approval. Therefore, she determined that Mullenix violated<br />
judgment on the grounds of qualified immunity, and the<br />
Leija's Fourth Amendment right to be free from intrusion<br />
Court of Appeals for the Fifth Circuit affirmed. Both<br />
absent government interest. Outside of her legal analysis,<br />
courts questioned his conduct and reasonableness in the<br />
Sotomayor noted that, after the shooting, Mullenix asked<br />
situation, given that it was not a ?split-second? moment<br />
his supervisor, ?How?s that for proactive?? 37 This was<br />
and there was no substantial and immediate threat.<br />
apparently in reference to a prior meeting in which a<br />
Therefore, the courts determined that Mullenix was not<br />
supervisor told Mullenix to be more engaged in his duties.<br />
entitled to qualified immunity. 33<br />
While irrelevant to the legal discussion (since Graham bars<br />
However, in a per curiam opinion, the Supreme Court hindsight analysis), Sotomayor concluded that the Court?s<br />
reversed the decision and granted Mullenix qualified decision to uphold the reasonableness of Mullenix?s<br />
immunity because there was no clear law stating that the actions sanctioned a ?shoot first, think later? approach and<br />
31. Mullenix v. Luna, 577 U.S. 7 (2015).<br />
32. Ibid.<br />
33. Ibid., 577 U.S. 10.<br />
34. A per curiam opinion refers to a decision issued in the name of the Court, usually indicating unanimous agreement on one component of the case.<br />
35. Mullenix, 577 U.S. 10.<br />
36. Ibid.<br />
37. Ibid., 577 U.S. 24.<br />
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rendered the Fourth Amendment ?hollow.? 38 Mullenix v.<br />
Luna provides another clear example of how the<br />
assessment of ?reasonableness? under Graham can be<br />
unclear. Sotomayor?s opinion highlights how the legal<br />
precedents currently in place empower police officers to<br />
use lethal force rather than properly analyzing their<br />
situations first.<br />
Altogether, these examples demonstrate that the concept of<br />
objective reasonableness is inherently flawed. Police<br />
officers can easily justify their actions without explaining<br />
their flawed intentions, even when it goes against basic<br />
common sense. This fact can be especially frustrating in<br />
instances like Mullenix v. Luna, where an officer?s prior<br />
statements and behavior cast further doubt on their actions.<br />
The Implications of Objective Reasonableness on<br />
Policing<br />
Graham?s Fourth Amendment objective reasonableness<br />
standard has transformed lower court rulings in cases<br />
under Section 1983 by consolidating them under Fourth<br />
Amendment analysis. Only 28 percent of federal court<br />
cases regarding excessive force prior to Graham discussed<br />
the Fourth Amendment, compared with 90.4 percent<br />
afterward. 39 With the Johnson v. Glick test no longer<br />
relevant, the judicial system now has a primary mode of<br />
analysis for evaluating the constitutionality of excessive<br />
force claims under Section 1983.<br />
Most critically, Graham?s objective reasonableness<br />
standard for justifying the use of force has shaped how<br />
police departments craft their official policies on the<br />
subject. Today, the case remains one of the primary<br />
sources of legal guidance for many departments in<br />
developing their tactics on when to use force. In a study of<br />
use-of-force policies from 75 different police departments,<br />
researchers Osagie K. Obasogie and Zachary Newman<br />
found that 100 percent mention reasonableness to some<br />
degree and reference the landmark case. 40 Other areas of<br />
the guidelines around lethal force are coded with language<br />
that implicitly encourages an officer to use force. 92<br />
percent of the guidelines mention force levels and 79<br />
percent talk about resistance levels. 41 The Denver Police<br />
Department's policy describes how ?psychological<br />
intimidation, non-verbal cues, attitude, appearance,<br />
demeanor, or posture? may be construed as a ?threat or<br />
overt act of an assault.? 42 Conversely, terminology that<br />
emphasizes the role of secondary assessment in force<br />
appears much less in current policing handbooks. In<br />
Obasogie and Newman?s research, deescalation appeared<br />
52 percent of the time, as well as force continua (48<br />
percent), exhaustion of alternatives (31 percent),<br />
reassessment (19 percent), and proportionality (17<br />
percent). 43 Only 12 percent of guidelines mention<br />
prejudice or bias. 44 This disparity reveals that although an<br />
officer?s sense of reasonableness is still relatively<br />
subjective, training programs can encourage the impulsive<br />
use of force with the assurance of legal protection under<br />
Graham.<br />
Furthermore, while there is typically absolute language<br />
regarding when not to use lethal force, such as when a<br />
suspect is fleeing, the same guidelines that provide these<br />
protections often allow for exceptions if the officer<br />
38. Ibid.<br />
39. Osagie K. Obasogie and Zachary Newman, ?The Futile Fourth Amendment: Understanding Police Excessive Force Doctrine Through An<br />
Empirical Assessment Of Graham V. Connor,? <strong>No</strong>rthwestern University <strong>Law</strong> <strong>Review</strong> 112, no. 6 (2018): 1485.<br />
40. Osagie K. Obasogie and Zachary Newman, ?The Endogenous Fourth Amendment: An Empirical Assessment of How Police Understandings of<br />
Excessive Force Become Constitutional <strong>Law</strong>,? Cornell <strong>Law</strong> <strong>Review</strong> 104, no. 5 (July 2019): 1304.<br />
41. Ibid, 1305.<br />
42. Ibid, 1304.<br />
43. Ibid, 1308.<br />
44. Ibid, 1307.<br />
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believes that force is ?reasonable? or ?appropriate.? The According to The Washington Post, black people consist of<br />
Virginia Beach policy against choke-holds notes that they less than 13 percent of the U.S. population but are more<br />
?are not authorized unless the use of deadly force is than twice as likely to be shot and killed by police<br />
appropriate.? 45 In Minneapolis, deadly force is allowed in compared to white Americans. 50 Other minority groups<br />
order to prevent the escape of someone who the officer have also faced disparate police brutality. According to the<br />
?knows or has reasonable grounds to believe? has National Alliance of Mental Health, nearly half of all those<br />
committed or attempted to commit a felony involving the killed in police custody have some form of disability. 51<br />
use of deadly force or will cause death or great bodily The Treatment Advocacy Center estimates that people with<br />
harm if their apprehension is delayed. 46 In practice, the untreated mental illness are 16 times more likely to be<br />
objective reasonableness standard allows law enforcement killed during a police encounter. 52<br />
officials to disregard regulations and act based on their<br />
Focusing specifically on communities of color, much of<br />
instincts.<br />
the death rate disparity can be attributed to implicit bias. In<br />
Introducing Implicit Bias<br />
other words, officers have a subconscious tendency to<br />
punish black and brown citizens at a much higher rate than<br />
The institutional shift toward, as Sotomayor describes, a<br />
white people. Implicit bias may also explain why black<br />
?shoot first, think later? mentality has had the most<br />
adults are about five times as likely as white people to say<br />
significant impact on communities of color. Unfortunately,<br />
they have been unfairly stopped by police because of their<br />
there is a severe lack of data regarding the historical trends<br />
race or ethnicity.<br />
of police brutality because local departments are not<br />
53 Nearly two-thirds of black adults (65<br />
required to report such information. 47 percent) say they have been in situations where people<br />
According to<br />
acted as if they were suspicious of them because of their<br />
estimates by the Center on Juvenile and Criminal Justice,<br />
race or ethnicity, while only a quarter of white adults say<br />
the number of black people killed by police sharply<br />
dropped after 1968. 48 the same.<br />
Nevertheless, police killings are<br />
54 The implicit bias of police, combined with<br />
Graham?s objective reasonableness standard, has allowed a<br />
much more frequent among black Americans than they are<br />
cycle of excessive violence to continue against<br />
among other races? 4.5 times more often for young black<br />
Americans and 1.7 times for older black Americans. 49 communities of color.<br />
45. Ibid.<br />
46. Ibid.<br />
47. Nicholas Goldberg, ?Column: We Need a Lot More Data on Police Abuse. Here's Why,? Los Angeles Times, June 17, 2020.<br />
48. Mike Males ?Who Are Police Killing?? Center on Juvenile and Criminal Justice, August 26, 2014, http://www.cjcj.org/news/8113.<br />
49. Ibid.<br />
50. Niall McCarthy, ?Police Shootings: Black Americans Disproportionately Affected [Infographic],? Forbes, May 28, 2020,<br />
https://www.forbes.com/sites/niallmccarthy/2020/05/28/police-shootings-black-americans-disproportionately-affected-infographic/?sh=5b772ece59f<br />
7.<br />
51. ?NAMI Illinois,? NAMI Illinois, <strong>No</strong>vember 17, 2020, https://namiillinois.org/half-people-killed-police-disability-report/.<br />
52. Heather Carroll, ?People with Untreated Mental Illness 16 Times More Likely to Be Killed By <strong>Law</strong> Enforcement,? Treatment Advocacy Center,<br />
accessed December 3, 2020, https://www.treatmentadvocacycenter.org/key-issues/criminalization-of-mental-illness/2976-people-with-untreatedmental-illness-16-times-more-lik<br />
ely-to-be-killed-by-law-enforcement-.<br />
53. Drew DeSilver, Michael Lipka, and Dalia Fahmy, ?10 Things We Know about Race and Policing in the U.S.,? Pew Research Center, August 17,<br />
2020, https://www.pewresearch.org/fact-tank/2020/06/03/10-things-we-know-about-race-and-policing-in-the-u-s/.<br />
54. Ibid.<br />
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The Future of the Fourteenth Amendment<br />
In order to accurately account for disparities in the use of<br />
excessive force, the Supreme Court must rely on the Equal<br />
Protection Clause of the Fourteenth Amendment. As a<br />
result, rather than taking the individualized approach of the<br />
Fourth Amendment, the Supreme Court can collectively<br />
acknowledge the role that race plays in policing.<br />
To begin with, the original intent of the Fourteenth<br />
Amendment presents a strong case for its application in<br />
instances of police brutality. In 1866, the United States<br />
Senate Committee on Reconstruction convened to analyze<br />
a report on the violence against African Americans in the<br />
South. 55 The report shocked senators and ?cataloged how<br />
police officers acted ?in respect to violence and ill usage,<br />
in every way equal to the old days of slavery.?? 56 The<br />
report served as one of the many inspirations for the<br />
Fourteenth Amendment. According to one of the<br />
Amendment?s framers, Senator Jacob Howard, the<br />
Amendment was intended to fundamentally transform<br />
policing by establishing basic fundamental rights and<br />
creating ?the equal protection of laws? in order to end ?the<br />
injustice of subjecting one caste of persons to a code not<br />
applicable to another.? 57 Despite the text and history of the<br />
Fourteenth Amendment, the Supreme Court has continued<br />
to cite Graham?s objective reasonableness standard instead.<br />
The case-by-case structure of this approach prevents the<br />
Court from characterizing police brutality as a systemic<br />
issue.<br />
The Legal Precedents for Police Brutality: The Enduring Legacy of the Objective Reasonableness Standard<br />
Shifting the judicial view of excessive force toward the<br />
Equal Protection Clause still requires monumental changes<br />
to Supreme Court jurisprudence. The Court must change<br />
how it applies the Fourteenth Amendment to avoid<br />
promoting colorblindness and asserting that authorities<br />
must be overtly racist for the Equal Protection Clause to<br />
become relevant. 58 Obasogie and Newman?s research<br />
highlights how modern Equal Protection Clause claims<br />
have failed because the judicial understanding of what<br />
discrimination looks like is still somewhat antiquated:<br />
After being assaulted during a traffic stop, one<br />
plaintiff?s equal protection claim failed because ?the<br />
officers did not make any sort of racist remarks.?When<br />
a mentally ill, African-American man was shot with a<br />
stun gun and brought suit under the Fourth<br />
Amendment and Equal Protection Clause, the court<br />
found that his ?equal protection claim warrant[ed]<br />
summary adjudication in favor of Defendants because<br />
he . . . presented no evidence that similarly situated<br />
individuals were treated differently or that Defendants<br />
pursued a course of action because of his race or<br />
mental illness.? 59<br />
Petitioners must often provide concrete, comparative<br />
evidence of bias that is near impossible to obtain. Overall,<br />
while the Fourteenth Amendment?s Equal Protection<br />
Clause provides hope for sufficiently addressing the role of<br />
implicit bias in Section 1983 excessive force claims,<br />
judicial applications of the Amendment must evolve as<br />
well to account for the variety of ways racism manifests<br />
itself.<br />
Conclusion<br />
Graham v. Connor?s legacy of objective reasonableness<br />
has had a significant negative impact on shaping<br />
America?s current state of policing. Although police<br />
departments have come under scrutiny for perpetuating<br />
systemic violence against certain communities, the U.S.<br />
judicial system has also played a major role in enabling<br />
such violence. Graham limited the protections guaranteed<br />
by the Fourth Amendment, allowing numerous instances<br />
of brutality to go unpunished. Even when police exhibit<br />
55. David H. Gans, ?The 14th Amendment Was Meant to Be a Protection Against State Violence,? The Atlantic, July 19, 2020.<br />
56. Ibid.<br />
57. Ibid.<br />
58. Obasogie and Newman, ?The Futile Fourth Amendment,? 1495.<br />
59. Ibid., 1495.<br />
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55
The Legal Precedents for Police Brutality: The Enduring Legacy of the Objective Reasonableness Standard<br />
illogical decision-making (Mullenix v. Luna) or unjust<br />
force toward an innocent person (Maney v. Garrison),<br />
courts have defended the offending officers by attributing<br />
their actions to the ?split-second? nature of their jobs or by<br />
granting them qualified immunity. The ease with which<br />
police officers are able to use lethal force has transformed<br />
official training tactics to encourage impulsive action<br />
rather than reassessment and patience. This phenomenon<br />
has become particularly harmful when considered<br />
alongside new evidence regarding implicit bias in criminal<br />
justice. One of the most viable judicial solutions for<br />
alleviating this issue is a renewed focus on the Equal<br />
Protection Clause of the Fourteenth Amendment.<br />
However, even this shift will require significant reform.<br />
Allowing Graham?s objective reasonableness to continue<br />
governing excessive force claims under Section 1983 will<br />
only further exacerbate the imbalances that have severely<br />
damaged and divided the country.<br />
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THE INTERNATIONAL SPACE LAW<br />
REGIME IN THE MODERN ERA<br />
Christopher Kobel<br />
ABSTRACT<br />
The beginning of the space age in the 1950s introduced the world to the daunting task of governing outer space. Between<br />
the mid-1960s and the mid-1980s, the international community negotiated a number of guiding principles, treaties, and<br />
supporting organizations that came to constitute the modern outer space law regime. Unfortunately, as it stands today,<br />
gaps and challenges in the regime such as unregulated militarization, unchecked private use, and the declining strength of<br />
the global commons ideal are hindering the effective governance of outer space. These gaps and challenges can be<br />
addressed by taking a more methodical approach to strengthening the outer space legal regime. Avoiding wide-sweeping<br />
conferences and resolutions and instead seeking more targeted negotiations with very specific scopes is advisable.<br />
Individual states can also help expand the scope of the regime by passing domestic laws that address the outlined gaps in<br />
the regulation of private space actors.<br />
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Introduction<br />
The issue of outer space occupies a peculiar sphere in the<br />
study of international relations. It is simultaneously the site<br />
of classical international political interactions over<br />
territory, sovereignty, and military force and also subject to<br />
the whims of modern physics and astounding technological<br />
advancement. It is odd to imagine governance in a place so<br />
abstract and disorienting, where both space and time are<br />
bent by unfamiliar laws of physics and mystery is more<br />
abundant than certainty. Yet, the invention of weapons of<br />
mass destruction, orbital vehicles, and both manned and<br />
unmanned spaceflight has made this governance absolutely<br />
necessary. Beginning in the late 1960s, the international<br />
community adopted a number of guidelines and<br />
agreements aiming to address everything from nuclear<br />
weapons to sovereignty claims and telecommunications<br />
issues. But since the mid-1980s, no additional treaties of<br />
consequence have been negotiated.<br />
This article will explore how effectively the international<br />
community has handled the issue of outer space and will<br />
argue that, as it stands today, the outer space regime is<br />
ill-equipped to manage the current challenges to the<br />
peaceful and just use of the void. Structural gaps in the<br />
regime, as well as its outdated nature, currently prevent it<br />
from addressing contemporary problems such as space<br />
militarization, control over celestial territory, and the<br />
growing presence of private actors in outer space.<br />
The Path to Outer Space <strong>Law</strong><br />
The successful launch of Sputnik in 1957 inspired<br />
widespread amazement across the world and acute fear<br />
amongst the United States and its allies. A region thought<br />
to be inaccessible to humans for millennia had finally been<br />
breached. The prospect of the Soviet Union having<br />
unchallenged space primacy kicked the Cold War space<br />
race into high gear; soon, the United States placed its own<br />
The International Space <strong>Law</strong> Regime in the Modern Era<br />
satellites into orbit and, a little over a decade after<br />
Sputnik?s launch, landed humans on the Moon.<br />
The American flag planted on the Moon by the astronauts<br />
further demanded a discussion by the international<br />
community about sovereignty and territory in space.<br />
Meanwhile, as the development of nuclear weapons<br />
progressed and intercontinental ballistic missiles (ICBMs)<br />
began to reach suborbital trajectories, concerns about space<br />
militarization became particularly salient. 1 Beyond the<br />
politics of the Cold War, the proliferation of operational<br />
satellites and their growing use for telecommunications<br />
necessitated a discussion about the partition (or lack<br />
thereof) of orbital and transmission space. Lastly, the<br />
ever-growing outer space debris field led to concerns about<br />
spacecraft and satellite safety.<br />
The Outer Space Regime<br />
Before crafting specific law, the international community<br />
first was tasked with deciding how it intended to imagine<br />
outer space. Would it be imagined in terms of ownership,<br />
like private property, or would it be a common space, akin<br />
to the ocean? Ultimately, the international community<br />
decided on the latter. The common space imagined was<br />
much like the high seas, free of the extensions of territory<br />
characteristic of airspace. The most basic principle that<br />
underlies the regime of treaties, resolutions, and<br />
frameworks is that outer space is free to all, and, as stated<br />
in the Outer Space Treaty, ?the province of all mankind.? 2<br />
Building on this basic concept, this section of the article<br />
will be broken up into the following subsections of the<br />
regime: the Principles, the Treaties, and the Organizations.<br />
The Principles<br />
Before speaking about the principles of space law, it is<br />
important to mention that the key difference between<br />
treaties and principles is that the former is legally binding,<br />
1. Karl Tate, ?How Intercontinental Ballistic Missiles Work (Infographic),? Space.com, Space.com, February 4, 2013,<br />
www.space.com/19601-how-intercontinental-ballistic-missiles-work-infographic.html.<br />
2. Magnus Wijkman, ?Managing the Global Commons,? International Organization, vol. 36, no. 3, 1982, 512.<br />
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58
while the latter is not. This does not mean, however, that<br />
legal principles are not significant; they undoubtedly<br />
provide important guidance for states and the creation of<br />
binding law. The veritable beginning of international outer<br />
space law arrived in December of 1963 with the adoption<br />
by the UN General Assembly of the ?Declaration of Legal<br />
Principles Governing the Activities of States in the<br />
Exploration and Uses of Outer Space,? or simply ?The<br />
Declaration of Legal Principles.? First and foremost, the<br />
resolution formally declared outer space to be a common<br />
space ?free for exploration and use by all States on a basis<br />
of equality and in accordance with international law.? 3<br />
Critically, it also declared space and celestial objects to be<br />
formally free from claims of sovereignty or national<br />
territory and asserted the applicability of both the UN<br />
Charter and existing international law to outer space. 4<br />
Furthermore, astronauts were to be considered the ?envoys<br />
of mankind,? and their safety a common responsibility<br />
amongst all states. 5 Finally, the ?Declaration? affirms that<br />
states own and are liable for all objects they launch into<br />
space. 6 Many of these principles were later given legal<br />
force with the approval of the ?Outer Space Treaty.?<br />
While the ?The Declaration of Legal Principles? laid the<br />
basic standards for the governance of outer space,<br />
technological advancement in the years following its<br />
adoption necessitated the conception and implementation<br />
of new legal principles. One of these subsequent<br />
documents, ?The Broadcasting Principles,? was adopted<br />
by the General Assembly (GA) in 1982 and sought to<br />
The International Space <strong>Law</strong> Regime in the Modern Era<br />
ensure equality amongst states relating to the use of<br />
satellites for television broadcast. The document?s words<br />
were clear: ?Every State has an equal right to conduct<br />
activities in the field of international direct television<br />
broadcasting by satellite.? 7<br />
Four years later, in 1986, the GA adopted ?The Remote<br />
Sensing Principles.? These principles offer a legal<br />
framework for the more esoteric issue regarding the<br />
capability of satellites to produce data of activity on Earth<br />
through ?remote sensing.? 8 The agreement, in essence, did<br />
little more than endorse the use of remote sensing within<br />
the framework of ?The Declaration of Legal Principles.? 9<br />
Subsequent adoption by the GA in 1992 and 1996 of the<br />
?Nuclear Power Sources? principles and the ?Benefits<br />
Declaration,? respectively, addressed the safe use of<br />
nuclear power in spacecraft and sought to make space<br />
exploration and use more globally equitable. 10<br />
The Treaties<br />
Following a common practice of international law, many<br />
of the legally binding treaties created for the governance of<br />
outer space heavily incorporated frameworks outlined in<br />
the non-binding Principles. In 1967, the UN General<br />
Assembly approved the ?Outer Space Treaty? (OST),<br />
establishing for the first time a legally binding framework<br />
for outer space governance. Modeled in large part after<br />
?The Declaration of Legal Principles,? the OST granted<br />
legal force to all of the key proclamations of ?The<br />
Declaration? such as the peaceful and mutually beneficial<br />
3. General Assembly resolution 1962(XVIII), Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer<br />
Space, A/RES/1962(XVIII), (13 December 1963), https://www.unoosa.org/oosa/en/ourwork/spacelaw/principles/legal-principles.html.<br />
4. William H. Schauer, ?OUTER SPACE: The Boundless Commons?? Journal of International Affairs, vol. 31, no. 1, 1977, 70.<br />
5. Ibid.<br />
6. Ibid., 76.<br />
7. General Assembly resolution 37/92, Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television<br />
Broadcasting, A/RES/37/92, (10 December 1982), www.unoosa.org/oosa/en/ourwork/spacelaw/principles/dbs-principles.html.<br />
8. Carl Q. Christol, ?UNITED NATIONS: COMMITTEE ON THE PEACEFUL USES OF OUTER SPACE DRAFT PRINCIPLES ON REMOTE<br />
SENSING,? International Legal Materials, vol. 25, no. 5, 1986, www.jstor.org/stable/20693025, 1332.<br />
9. Ibid., 1331.<br />
10. ?Space <strong>Law</strong> Treaties and Principles,? United Nations Office for Outer Space Affairs, The United Nations,<br />
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59
use of outer space and international cooperation thereof,<br />
but added a few new and important regulations. 11<br />
Crucially, article IV of the treaty mandated the total<br />
absence of nuclear weapons from both outer space orbit<br />
and celestial bodies. Secondly, article IV explicitly<br />
instructed states to conduct only peaceful activities on the<br />
Moon and all other celestial bodies. 12 As will be noted in<br />
detail later, the OST did not outlaw space weaponry in<br />
general. But, despite this apparent gap, the international<br />
community viewed the OST and its provisions as the<br />
elementary guiding principles for the further development<br />
of the outer space regime. Critically, the treaty also<br />
enjoyed widespread ratification amongst states, including<br />
all of the nuclear and space-faring nations at the time. 13<br />
The years following the OST saw the adoption of a number<br />
of treaties that sought to emphasize different portions of<br />
the OST. All of these subsequent treaties, except for the<br />
?Moon Treaty,? have been ratified by all of the key<br />
spacefaring nations. 14 In 1968, just one year after the<br />
accession of the OST, the GA adopted the ?Rescue<br />
Agreement.? In essence, the treaty elaborated on the<br />
provisions of the OST and ?The Declaration of Legal<br />
Principles? providing for the safety of astronauts. 15 The<br />
1970s saw the adoption of two treaties, the ?Liability<br />
Convention? and the ?Registration Convention,? both of<br />
which elaborated on particular provisions of the OST.<br />
The International Space <strong>Law</strong> Regime in the Modern Era<br />
According to Alex Young, the ?Liability Convention,?<br />
seeking to clarify vague clauses in previous treaties,<br />
established that ?states are liable for damage done to other<br />
states or persons by objects that state has launched.? 16<br />
Meanwhile, the ?Registration Convention? sought to<br />
address the serious problem of space junk by, to use the<br />
words of the treaty itself, ?expand[ing] the scope of the<br />
?United Nations Register of Objects Launched into Outer<br />
Space? that had been established by resolution 1721B<br />
(XVI) of December 1961.? 17 Finally, 1984 offered what is,<br />
to this day, the last major UN treaty on outer space. The<br />
?Moon Treaty,? as it became known, was created to<br />
re-emphasize the peaceful use of the Moon and the<br />
illegality of sovereignty claims. 18 Unfortunately, as no<br />
spacefaring nation has yet ratified it, the treaty is largely<br />
viewed as ineffectual. 19<br />
The Organizations<br />
Along with the adoption of principles and treaties, the<br />
international community also created a number of<br />
bureaucracies, conferences, and committees both to<br />
facilitate the development of additional space law and<br />
handle its implementation. Just as the most relevant space<br />
law has been produced through UN mechanisms, many of<br />
these related bureaucracies, conferences, and committees<br />
also fall under the UN umbrella.<br />
11. General Assembly resolution 2222 (XXI), Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space,<br />
including the Moon and Other Celestial Bodies, RES 2222 (XXI), (19 December 1966),<br />
www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introouterspacetreaty.html.<br />
12. Ibid., 1.<br />
13. Elizabeth Howell, ?Who Owns the Moon? | Space <strong>Law</strong> & Outer Space Treaties,? Space.com, October 27, 2017,<br />
www.space.com/33440-space-law.html.<br />
14. Committee on the Peaceful Uses of Outer Space. ?Status of International Agreements Relating to Activities in Outer Space as at 1 January 2018.?<br />
UNOOSA, April 9, 2018. www.unoosa.org/Documents/Pdf/Spacelaw/Treatystatus/AC105_C2_2018_CRP03E.pdf.<br />
15. General Assembly resolution 2345 (XXII), Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched<br />
into Outer Space, RES 2345 (XXII), (19 December 1967), www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introrescueagreement.html.<br />
16. Alex Young, ?Diplomacy in Space: The Final Frontier of International <strong>Law</strong>,? Harvard International <strong>Review</strong>, vol. 35, no. 3, 2014, 6.<br />
17. General Assembly resolution 3235 (XXIX), Convention on Registration of Objects Launched into Outer Space, RES 3235 (XXIX), (12<br />
<strong>No</strong>vember 1974), www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introregistration-convention.html.<br />
18. General Assembly resolution 34/68, Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, A/RES/34/68, (5<br />
December 1979), www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/intromoon-agreement.html.<br />
19. Ibid.<br />
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60
Created by an act of the GA in 1959, the UN Committee<br />
on the Peaceful Uses of Outer Space (COPUOS) is the<br />
central governing arm for the UN outer space regime.<br />
According to the UN, the committee (which is also divided<br />
into two subcommittees for scientific and legal issues) is<br />
tasked with reviewing the status of peace and international<br />
cooperation in space, formulating additional law, and<br />
identifying potential legal problems. 20 Next, and of close<br />
relation to COPUOS, is the UN Office for Outer Space<br />
Affairs (UNOOSA). UNOOSA is a division of the UN?s<br />
Department for Political Affairs and advertises itself as the<br />
secretariat for COPUOS. Beyond its broad duty of<br />
?promoting international cooperation in the peaceful uses<br />
of outer space,? the Office also is burdened with both<br />
maintaining the UN's registry of objects launched into<br />
space and overseeing the execution of the Secretary<br />
General?s imperatives as ordered by space law. 21 Beyond<br />
these more broad-scope organizations, the issue of space<br />
militarization is a delegated focus of the UN Conference<br />
on Disarmament, while the partition of the electromagnetic<br />
spectrum for broadcasting purposes (from satellites to<br />
Earth) is managed by the UN?s International<br />
Telecommunications Union. 22<br />
Gaps and Challenges to the Outer Space Regime<br />
When analyzing any kind of existing legal regime, it is<br />
important to resist the temptation to paint with a broad<br />
brush: no set of laws is entirely effective nor entirely<br />
ineffective. The UN?s Space Object Register (the existence<br />
of which is mandated by the Registration Convention)<br />
continues to serve a critical role in keeping track of the<br />
proliferating amount of ?space junk? in orbit around Earth.<br />
And, for its part, UNOOSA has developed resources that<br />
The International Space <strong>Law</strong> Regime in the Modern Era<br />
outline how outer space can be used to achieve the UN?s<br />
Sustainable Development Goals (space technologies can,<br />
for example, be used to improve livestock management). 23<br />
Though the Principles, Treaties, and Organizations<br />
constituting the outer space law regime are certainly<br />
well-intentioned, they fall short of effective governance in<br />
key ways. In this section, the current regime?s<br />
shortcomings relating to space militarization, private<br />
actors, the norm of a global commons, and more, will be<br />
described. It is important to first re-emphasize the<br />
astonishing fact that the last time the international<br />
community created a significant addition to the regime<br />
(1984), the Soviet Union was still in existence, and the<br />
International Space Station had not yet been launched. Just<br />
as a basic point of departure, it is clear that the sheer<br />
magnitude of political and technological change that has<br />
occurred up to the present is more than enough to warrant<br />
a serious examination of gaps in the existing law.<br />
Militarization<br />
First, and posing the most direct threat to the maintenance<br />
of peace, is the issue of space militarization. It is clear that<br />
the existing law has not set sufficient precedent to deter<br />
more powerful states from continuing on a path towards<br />
additional space militarization. <strong>No</strong>r is there an adequate<br />
enforcement mechanism to punish such actions. As<br />
mentioned previously, while the outer space regime<br />
adequately prevented the placement of nuclear weapons in<br />
space, it did not explicitly ban or limit all outer space<br />
related weaponry. This is not to say that other actors have<br />
not tried. According to Nina Tannenwald, ?China and<br />
Russia have drafted text for a treaty to ban space weapons.<br />
The United States, however, has refused to enter<br />
20. ?Committee on the Peaceful Uses of Outer Space,? United Nations Office for Outer Space Affairs, The United Nations,<br />
www.unoosa.org/oosa/en/ourwork/copuos/index.html.<br />
21. ?Roles and Responsibilities,? United Nations Office for Outer Space Affairs, The United Nations,<br />
www.unoosa.org/oosa/en/aboutus/roles-responsibilities.html.<br />
22. Wijkman, 534.<br />
23. ?Sustainable Development Goal 2: Zero Hunger,? United Nations Office for Outer Space Affairs, The United Nations,<br />
http://www.unoosa.org/oosa/en/ourwork/space4sdgs/sdg2.html.<br />
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61
negotiations on such a treaty.? 24<br />
Unfortunately, as it stands today, there is little question that<br />
outer space is militarized. One has to look no further than<br />
the United States to see this. To begin with, many current<br />
U.S. military defense postures purport the inevitability of<br />
conflict in space and subsequently call for the<br />
?establishment of control and superiority in outer space.? 25<br />
In 2018, then-President Donald Trump even created the<br />
Space Force to defend U.S. interests in space. 26 But even<br />
beyond these aspirations, basic functions of the U.S.<br />
military rely heavily on outer space technologies. As John<br />
Logsdon of George Washington University?s Space Policy<br />
Institute remarked, ?U.S. armed forces would have great<br />
difficulty carrying on a military mission today if denied<br />
access to its guidance, reconnaissance and communication<br />
satellites.? 27 Existing completely beyond the calculus of<br />
major elements of the regime, China too has expanded the<br />
scope of its military to the heavens with the stated purpose<br />
of challenging American power in the realm. For example,<br />
in 2015, ?China tested the Dong Neng-3 exoatmospheric<br />
vehicle capable of ramming US satellites and destroying<br />
them.? 28 Finally, much of the statutory language calling for<br />
peace in outer space ignores that many modern space<br />
weapons, such as satellite jamming devices and computer<br />
viruses capable of disabling spacecraft systems, originate<br />
from the ground. 29 As Professor Nina Tannenwald writes,<br />
?Without a concerted effort to develop a more<br />
comprehensive legal regime for space that will limit<br />
unconstrained weaponization, the international community<br />
will likely face a new military competition for space, with<br />
The International Space <strong>Law</strong> Regime in the Modern Era<br />
destabilizing consequences for national and global<br />
security.? 30<br />
Every year that the international community avoids<br />
addressing this serious gap in the international space law<br />
regime, space militarization threatens to balloon past the<br />
point of reversal. Admittedly, hashing out a broad-based<br />
multilateral agreement or treaty with real teeth and<br />
enforcement mechanisms is a multi-year process at a<br />
minimum and carries no guarantee of success. While such<br />
efforts are necessary and should be initiated, it would be<br />
more prudent for the major spacefaring nations to negotiate<br />
amongst themselves in a manner similar to the major arms<br />
agreements of the Cold War. By and large these<br />
agreements were considered successful, in large part<br />
because they were specific, rather than broad, in scope. At<br />
this point, since it is unrealistic to expect that major<br />
powers will agree to demilitarize space all at once<br />
(abandoning strategic interests such as military satellite<br />
communication is a nonstarter), negotiations should<br />
instead first focus on nipping certain emerging<br />
technologies in the bud. For example, a treaty banning the<br />
use of satellite-ramming space vehicles could be a good<br />
place to start.<br />
Private Use<br />
During the roughly 20 years in which the vast majority of<br />
the outer space regime was crafted and adopted, essentially<br />
no serious thought or legal action was given to the matter<br />
of private use of outer space. The Outer Space Treaty only<br />
mentions private actors in passing, asserting that ?States<br />
24. Nina Tannenwald, ?<strong>Law</strong> Versus Power on the High Frontier,? The Yale Journal of International <strong>Law</strong>, vol. 29, no. 2, 2004, 410.<br />
25. Saeed Khan, ?Space <strong>Law</strong> for Peace: A Critical <strong>Review</strong>,? Pakistan Horizon, vol. 59, no. 2, 2006, 83.<br />
26. Justin Bachman, ?Why Trump Wants a Space Force for the Final Frontier,? Bloomberg, August 10, 2018,<br />
www.bloomberg.com/news/articles/2018-08-06/what-s-a-space-force-and-can-trump-really-start-one-quicktake.<br />
27. Khan, 83.<br />
28. Namrata Goswami, ?China in Space: Ambitions and Possible Conflict,? Strategic Studies Quarterly, vol. 12, no. 1, 2018, 76.<br />
29. Jim Wolf, ?China Key Suspect in U.S. Satellite Hacks: Commission,? Reuters, Thomson Reuters, October 28, 2011,<br />
www.reuters.com/article/us-china-usa-satellite-idUSTRE79R4O320111028.<br />
30. Tannenwald, 420.<br />
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shall be responsible for national space activities whether<br />
carried out by governmental or non-governmental<br />
entities,? and offers no legally binding principles or<br />
guidelines for how private actors should conduct<br />
themselves in outer space. 31 This was, unfortunately, very<br />
short sighted: according to Professor Nina Tannenwald,<br />
?The number of commercial space launches began to<br />
outpace military launches in 1998.? 32<br />
For private space actors like Elon Musk?s SpaceX? a<br />
frequent launcher of private space-faring rockets? there<br />
are, again, no international rules regulating their actions.<br />
Using the lack of legal guidelines on the private<br />
appropriation of celestial territory, ?Many private<br />
companies, such as Lunarland, ? have offered to sell plots<br />
of land on celestial bodies such as the moon.? 33 Following<br />
in this trend of increasingly marketized space activity,<br />
states are often choosing to contract out to the private<br />
sector. 34 In 2004 alone, ?[w]ell over 300 of the 2959 total<br />
(active and inactive) satellites in orbit ? were operated by<br />
international organizations or private corporations.? 35<br />
Space tourism is also moving closer to reality, with private<br />
companies such as ?World View Enterprises, Virgin<br />
Galactic, and XCOR Aerospace [already] beginning to<br />
offer opportunities for space tourism,? all the while in the<br />
complete absence of international standards ensuring the<br />
safety of passengers. 36 Finally, private companies are<br />
escalating their interest in colonization. SpaceX, for<br />
example, has released an extremely detailed and ambitious<br />
plan to create the first human colony on Mars. 37<br />
If SpaceX is to be the emissary of humankind in its first<br />
The International Space <strong>Law</strong> Regime in the Modern Era<br />
extra-Earth habitation, it should absolutely not be allowed<br />
to act unilaterally. For such a momentous occasion, the<br />
international community must have in place clear and<br />
comprehensive rules and guidelines to prevent any<br />
corporate behavior that might be harmful to the common<br />
interest of humanity. This behavior could include actions<br />
that are anti-competitive as well as practices that contribute<br />
to harmful and unnecessary resource exploitation and<br />
planetary degradation. Unfortunately, the international<br />
community has no such guidelines at present. It is<br />
important to emphasize that it is neither wise nor realistic<br />
to attempt to ban private space activity outright. If space is<br />
a global commons, it is hypocritical to make it the<br />
exclusive zone of nation-states. Rather, to address this<br />
issue, individual states and the international community<br />
can contribute to the international space law regime in a<br />
number of ways. First, the Outer Space Treaty should be<br />
amended to include tougher language that sets the<br />
standards for fair and equitable competition amongst<br />
private space actors and clarifies that they, too, may not<br />
appropriate, sell, or otherwise control public outer space<br />
resources as their own. International forums like the G20<br />
could also be used to deliberate and form multilateral<br />
agreements on these issues. Domestically, individual state<br />
governments should enact laws that accomplish similar<br />
goals, with a particular eye for avoiding monopolies and<br />
prohibiting private appropriation of outer space resources.<br />
Outer Space as a Commons<br />
Ever since the international community ceased developing<br />
the outer space regime in the mid-1980s, the central norm<br />
31. General Assembly, Outer Space.<br />
32. Tannenwald, 370.<br />
33. Jill Stuart, ?The Outer Space Treaty Has Been Remarkably Successful ? but Is It Fit for the Modern Age?? The Conversation, The Conversation,<br />
September 20, 2018, theconversation.com/the-outer-space-treaty-has-been-remarkably-successful-but-is-it-fit-for-the-modern-age-71381.<br />
34. Art Dula, ?Private Sector Activities in Outer Space,? The International <strong>Law</strong>yer, vol. 19, no. 1, 1985, 163.<br />
35. Tannenwald, 400.<br />
36. Young, 7.<br />
37. ?Mars & Beyond.? SpaceX, <strong>2021</strong>. https://www.spacex.com/mars.<br />
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of space as a global commons has faced challenges. The<br />
first of these is a problem of definition. Critically, ?neither<br />
treaties nor most laws define exactly where the atmosphere<br />
ends and space begins.? 38 The consequences of this were<br />
seen when, in 1976, ?a group of eight countries tried to<br />
claim ownership of a segment of an orbit that was in the<br />
space situated above their land.? 39 In what became known<br />
as the Bogota Declaration, the countries claimed that<br />
because ?their borders projected into the heavens, any<br />
?stationary? satellite there would always be within their<br />
borders.? 40 Even though the international community<br />
resoundingly rejected these claims, the continuing lack of<br />
legal definition still allows for states and other actors to<br />
challenge the norm of outer space as non-appropriable by<br />
applying this airspace-esque analogy.<br />
The virtue of space as a common space of cooperation is<br />
also challenged by the growing prevalence of ?first-come,<br />
first-serve? protocols relating to resource extraction.<br />
Again, the outer space regime failed to produce clear<br />
guidelines on resource extraction, leading to contradictory<br />
messages today. For example, the UN?s own International<br />
Telecommunications Union, instead of using an equitable<br />
system, awards user rights to outer space broadcasting<br />
signals on a first-come, first-serve basis. 41 <strong>No</strong>ting such<br />
cues from the UN, powerful, spacefaring nations such as<br />
China and the United States have continued to widely<br />
ignore the more cooperative ideals of the existing law in<br />
favor of more competitive rhetoric. In 2002, a senior<br />
scientist of China?s Moon exploration program stated that,<br />
?The Moon could serve as a new and tremendous supplier<br />
of energy and resources for human beings...Whoever first<br />
The International Space <strong>Law</strong> Regime in the Modern Era<br />
conquers the Moon will benefit first.? 42 The United States,<br />
on the other hand, officially bestowed to its citizens the<br />
right to extract resources on any celestial body with the<br />
passage of the Commercial Space Launch Act of 2015. 43 It<br />
is evident that the United States and China, as well as any<br />
private actors, are poised to capitalize off of this<br />
contradiction between the absence of clear resource<br />
guidelines such as those outlined in the previous section<br />
and the cooperative and equitable spirit of the regime.<br />
Other Challenges<br />
It is important to briefly mention two other gaps in the<br />
current outer space regime. First is the near absence of a<br />
dispute settlement mechanism. Even if all of the gaps<br />
outlined in the above subsections are corrected with<br />
additions to the outer space regime, disputes will<br />
undoubtedly arise. All that is mandated in the Outer Space<br />
Treaty, however, is that states in dispute or in suspected<br />
violation of outer space law are to ?consult? with each<br />
other and the relevant UN institutions. 44 This is simply<br />
inadequate to handle the often intensely complicated and<br />
highly sensitive disputes that can arise from international<br />
relations in outer space. Therefore, a key and missing<br />
component in the regime is a strong and effective dispute<br />
settlement mechanism, much like that of the World Trade<br />
Organization.<br />
Finally, in conflict with the ideals of the regime, outer<br />
space has not been a location accessible to all countries.<br />
Only a small percentage of nations have space capabilities,<br />
and much of that percentage remains dominated by<br />
traditional large powers. The United States, for example,<br />
38. Michael J. Finch, ?Limited Space: Allocating the Geostationary Orbit,? <strong>No</strong>rthwestern Journal of International <strong>Law</strong> and Business, vol. 7, no. 4,<br />
1986, 794.<br />
39. Ibid., 790.<br />
40. Ibid.<br />
41. Wijkman, 534.<br />
42. Goswami, 77.<br />
43. U.S. Commercial Space Launch Competitiveness Act, Public <strong>Law</strong> 114-90, US Statutes at Large 129 (2015): 704-722.<br />
44. General Assembly, Outer Space.<br />
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?accounts for three-quarters of official space funding<br />
worldwide, and U.S. public and private corporations own<br />
more than 40 percent of orbiting satellites.? 45 This<br />
distributional problem is also not helped by the growing<br />
prevalence of ?first-come, first-served,? as described<br />
above. Under this developing scenario, the large, powerful,<br />
spacefaring nations are able to access celestial resources<br />
first, again at the expense of less developed and powerful<br />
nations. For the time being, outer space seems to be<br />
dominated by many of the same inequalities that exist on<br />
Earth.<br />
The International Space <strong>Law</strong> Regime in the Modern Era<br />
Conclusion<br />
Ever since the launch of Sputnik in the late 1950s,<br />
humanity has faced the daunting task of governing outer<br />
space. From the mid-1960s to the mid-1980s, the<br />
international community created a number of guiding<br />
principles, legally binding treaties, and supporting<br />
organizations that formed the modern outer space regime.<br />
Unfortunately, as it stands today, gaps and challenges in<br />
the regime such as unchecked militarization, private use,<br />
and the strength of the global commons ideal are hindering<br />
the effective governance of outer space. These gaps and<br />
challenges can be addressed by taking a more methodical<br />
approach to strengthening the outer space legal regime.<br />
Fewer wide-sweeping conferences and resolutions and<br />
more targeted negotiations with very specific scopes are all<br />
advisable. Individual states can also contribute by passing<br />
domestic laws that address the outlined gaps in the<br />
regulation of private space actors. Without a serious and<br />
focused effort on the part of the international community<br />
and individual states to redesign and modernize the outer<br />
space regime, challenges, old and new, will continue to<br />
remain unaddressed.<br />
45. Stewart Patrick, ?Conflict and Cooperation in the Global Commons,? Managing Conflict in a World Adrift, ed. Chester A. Crocker et al.,<br />
(McGill-Queen University Press, 2015), 103.<br />
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CLIMATE REFUGEES:<br />
PROTECTION GAPS IN THE<br />
INTERNATIONAL LAW<br />
Sophia Matthews<br />
ABSTRACT<br />
The international refugee regime does not extend protection to climate refugees. The term ?climate refugee? is<br />
unrecognized in international law? in this paper, it will refer to those displaced either internally or across national borders<br />
by environmental disruption. Offering data that demonstrates that climate refugees are a material issue, this paper<br />
identifies the protection gaps in international law and argues that such gaps are inconsistent with the spirit of the<br />
international refugee regime. Next, this paper will examine a case study of Bangladesh that illustrates the severity of the<br />
climate refugee crisis. Finally, this paper will explore the Nansen Initiative and the Kampala Convention as the basis for<br />
rectifying protection gaps for climate refugees. Ultimately, this paper seeks to draw parallels between the core issues that<br />
preclude climate refugee protection and the issue of climate change as a whole, drawing attention to how the notion of<br />
legal responsibility is constructed.<br />
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Introduction<br />
The concept of environmental refugees was first<br />
introduced to public discourse in 1985 when Essam<br />
El-Hinnawi, an expert from the United Nations<br />
Environment Programme, defined environmental refugees<br />
as ?those people who have been forced to leave their<br />
traditional habitat, temporarily or permanently, because of<br />
environmental disruption? natural or triggered by people<br />
? that jeopardized their existence and/or seriously affected<br />
the quality of their life.? 1 Ever since, international spheres<br />
of politics and academia have debated the definition? and<br />
the very existence? of climate and environmental<br />
refugees, terms that are now used interchangeably. Despite<br />
its increasing relevance as the threat of climate change<br />
intensifies and the refugee crisis worsens, the term<br />
?climate refugee? remains unrecognized and undefined in<br />
international law. Although a consensus has emerged<br />
around the specifications made by El-Hinnawi, the lack of<br />
legal definition has left swelling numbers of people<br />
unprotected, generating considerable international and<br />
national security concerns. 2<br />
Between 2008 and 2014, 184 million people were<br />
displaced by sudden environmental disasters, with an<br />
average of 26.4 million displaced each year? this is<br />
equivalent to one person displaced every second. 3<br />
Conservative estimates project that there will be more than<br />
200 million climate refugees by 2050, an almost four-fold<br />
increase in the number of displaced persons currently<br />
eligible for protection under international refugee law. Less<br />
conservative estimates by the Intergovernmental Panel on<br />
Climate Refugees: Protection Gaps in the International <strong>Law</strong><br />
Climate Change (IPCC) forecast that 600 million people in<br />
low-lying coastal zones will be at risk this century, the vast<br />
majority of which are located in the least-developed<br />
countries. 4 Island states in the Pacific and Caribbean are<br />
most acutely threatened by the prospect of land loss, while<br />
Vietnam, Bangladesh, India, and parts of China are<br />
projected to present the greatest numbers of climate<br />
migrants. 5 Millions more are expected to flee from the<br />
coasts of Africa, with large population flows stemming<br />
from Eritrea, Libya, and Nigeria. 6 In short, the issue of<br />
climate refugees is urgent, burgeoning, and international.<br />
These figures do not account for those displaced by<br />
slow-onset environmental degradation, nor internally<br />
displaced persons (IDPs). While IDPs, people displaced<br />
within national borders, may pose less of a challenge to<br />
international security than cross-border refugees,<br />
climate-induced IDPs should likewise be entitled to legal<br />
protection? this paper will address protection for both<br />
IDPs and international refugees. The figures provided also<br />
do not include those whose cause for migration overlaps<br />
with political persecution: for example, refugees from<br />
Syria. This categorization not only obscures the true<br />
number of climate refugees, but also the reality that<br />
climate change often functions as an exacerbator of other<br />
social, political, and economic crises. Environmental<br />
degradation intensifies competition for resources that<br />
increases tensions between social or political groups, while<br />
increased climate variability can result in adverse growth<br />
shocks that increase the risk of conflict. Climate<br />
deterioration has been linked to membership in rebel<br />
groups as livelihoods are threatened and desperation<br />
1. Joanna Apap, ?The concept of ?climate refugee?: Towards a possible definition? (briefing, European Parliamentary Research Service, European<br />
Parliament, February 2019), 3.<br />
2. Ibid.<br />
3. The Nansen Initiative, Global Consultation Report (Geneva: The Nansen Initiative, 2015), 8.<br />
4. Benjamin Glahn, ?Climate refugees? Addressing the international legal gaps,? International Bar Association, June 11, 2009,<br />
https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=B51C02C1-3C27-4AE3-B4C4-7E350EB0F442.<br />
5. Government of the United Kingdom, The Stern <strong>Review</strong>: The Economics of Climate Change, by Nicholas Stern, United Kingdom: Her Majesty?s<br />
Treasury, 2006, 77.<br />
6. Denise Robbins and John Wennertsen, ?The Middle East: The Boiling Point of Climate Change and National Security,? in Rising Tides: Climate<br />
Refugees in the Twenty-First Century (Bloomington: Indiana University Press, 2017), 224.<br />
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increases. 7 Countries with political instability, ethnic<br />
tensions, unemployment, rapid urbanization, or high<br />
dependence on agriculture are particularly vulnerable to<br />
the exacerbating effects of climate change. 8 Indeed, the<br />
Syrian refugee crisis was underscored by a drought that led<br />
to cataclysmic crop failures and the loss of 85 percent of<br />
livestock in some areas. 9 Under debilitating environmental<br />
conditions, political violence intensifies. In short, growing<br />
numbers of political refugees are also climate refugees.<br />
Like climate change itself, the international failure to<br />
address climate refugees arises from the issue of<br />
responsibility. The global community does not lack<br />
information; the scientific consensus identifies greenhouse<br />
gas emissions produced by the developed West as the<br />
primary culprit of the climate crisis. However, holding the<br />
entirety of the industrialized West legally responsible for<br />
anthropogenic climate change is both unfeasible and<br />
unproductive. It is possible to narrow down the scope of<br />
responsibility to the top emitters of greenhouse gases in the<br />
developed West or, even further, to the handful of<br />
multinational corporations responsible for the vast<br />
majority of carbon emissions. Although such an exercise<br />
might be morally and intellectually satisfying, significant<br />
action by the top emitters remains a pipedream of<br />
corporate social responsibility. The lack of incentive for<br />
Western nations to accept responsibility leads one to an<br />
unfortunate conclusion: legal responsibility for climate<br />
change is impossible.<br />
If assigning legal responsibility for climate change is<br />
impossible, assigning legal responsibility for climate<br />
refugees is also impossible. Thus, the future of climate<br />
refugees rests on the principle of burden-sharing. However,<br />
the burden-sharing norm is weak and lacks any legal<br />
framework, a reality that lies at the crux of the climate<br />
Climate Refugees: Protection Gaps in the International <strong>Law</strong><br />
refugee issue. 10 But this does not constitute grounds for<br />
lethargy. The international community must work to<br />
construct, at the very least, a normative framework for<br />
addressing the impending climate refugee crisis. This<br />
paper will explore the legal mechanisms by which this can<br />
be done, argue that the current international refugee regime<br />
is insufficient insofar as it does not address climate<br />
refugees, and identify distinct gaps in protection for such<br />
refugees in international law. Ultimately, this essay seeks<br />
to prove that the issue of responsibility lies at the root of<br />
such protection gaps. Next, this paper points to Bangladesh<br />
as a case study of climate-induced migration that<br />
demonstrates the urgency of expanding the refugee<br />
protection regime. The following section provides policy<br />
recommendations and discusses lingering challenges,<br />
arguing that the Nansen Initiative and Kampala<br />
Convention should serve as the foundations for a<br />
comprehensive protection regime. Finally, this paper<br />
provides a brief commentary on the parallels between the<br />
issue of climate refugees and the issue of climate change as<br />
a whole.<br />
Protection Gaps in the International Refugee Regime<br />
The kingpin of the international refugee regime is the<br />
United Nations 1951 Convention Relating to the Status of<br />
Refugees. According to the Convention, a refugee is any<br />
person who, ?owing to a well-founded fear of being<br />
persecuted for reasons of race, religion, nationality,<br />
membership of a particular social group or political<br />
opinion,? has fled their country of residence and is unable<br />
or, owing to such fear, unwilling to return. Thus, the<br />
Convention requires direct causation or responsibility and<br />
is typically applicable only where a state, rebel group, or<br />
other organization is the agent of targeted persecution. This<br />
is the primary barrier to climate refugees?protection under<br />
7. Government of the United Kingdom, 112.<br />
8. <strong>No</strong>rman Myers, ?Environmental Refugees: An Emergent Security Issue,? (presentation, 13th Economic Forum, Organization for Security and<br />
Co-operation in Europe, Prague, May 23-27, 2005), 2.<br />
9. Robbins and Wennersten, 224.<br />
10. Nina Tannenwald, ?The Global Refugee Regime? (class lecture, POLS 1500: The Politics of the International <strong>Law</strong> and Human Rights, <strong>Brown</strong><br />
University, <strong>No</strong>vember 13, 2019).<br />
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68
the Convention. The language of the Convention<br />
necessitates systematic discrimination in which, as a<br />
non-sentient entity, climate change cannot partake. Again,<br />
the question of responsibility for the perils facing climate<br />
refugees is subject to the broader debate over responsibility<br />
for climate change as a whole. As long as causing climate<br />
change does not constitute a form of persecution, neither<br />
does causing climate refugees. Therefore, climate refugees<br />
are beyond the scope of the Convention.<br />
Though the exclusion of climate refugees is consistent<br />
with the letter of the Convention, it is inconsistent with its<br />
spirit. 11 Climate refugees, like political refugees, flee<br />
dangers from which their government cannot or will not<br />
protect them. Such is the founding philosophy of the<br />
Refugee Convention? the international community should<br />
assist citizens whose governments are unable to ensure<br />
their safety and wellbeing. So, despite the definitional<br />
barriers to protecting climate refugees, climate refugees<br />
should invoke the very ideals of collective responsibility<br />
upon which the Convention is based. Moreover, the<br />
Convention neglects internally displaced persons (IDPs).<br />
These protection gaps reflect not only the issue of<br />
responsibility for climate change but also the delay<br />
between the onset of global issues and their codification<br />
into law. The scale and gravity of the effects of<br />
anthropogenic climate change were not well researched or<br />
understood when the Refugee Convention was drafted. 12<br />
Thus, the legal definition of a refugee is limited to the<br />
explicit legal category that was relevant at the time;<br />
international refugee law must adapt to protect those<br />
persons for whom their state of origin cannot or will not<br />
fulfill their responsibilities because of contemporary<br />
Climate Refugees: Protection Gaps in the International <strong>Law</strong><br />
challenges facing the global community.<br />
Case Study: Bangladesh<br />
Bangladesh represents a dire example of the need for an<br />
expanded refugee protection regime. Alongside the Nile<br />
Delta in Egypt and parts of Vietnam, Bangladesh has been<br />
identified as one of the nations most susceptible to the<br />
impacts of climate change and climate-induced<br />
displacement. 13 Its low elevation, high population density,<br />
and inadequate urban infrastructure render the nation<br />
acutely vulnerable. Anthropogenic climate change has<br />
disrupted natural rain patterns, creating droughts in some<br />
areas and destructive floods in others. More than 20<br />
percent of the South Asian country is flooded every year.<br />
As one of the world?s least-developed countries,<br />
Bangladesh can hardly afford the technology that might be<br />
used to mitigate the effects of flooding. 14 To date, 45<br />
million people of Bangladesh?s total 163 million have been<br />
displaced by floods. A survey of 600 households revealed<br />
that 28 percent had at least one migrant, of which 83<br />
percent reported flooding as the primary reason behind<br />
their displacement. Rising sea levels constitute another<br />
persistent threat to Bangladesh. A one-meter increase in<br />
sea level will lead to land dispossession for upwards of 14<br />
million and the displacement of up to 40 million people. 15<br />
Furthermore, sea-level rise is increasing the salinity of soil<br />
in coastal agricultural areas, promising to damage or<br />
eradicate agrarian livelihoods. The salinity has damaged<br />
the job market as much as it has the environment;<br />
wealthier farmers have converted rice paddies to<br />
self-reliant and salt-intolerant shrimp ponds, thus removing<br />
a reliable opportunity for paid labor along the coasts. 6<br />
11. Aram Kamali, ?Climate Refugees: Exposing the Protection Gap in International <strong>Law</strong>? (paper, Climate Institute, August 23, 2016), 4.<br />
12. Glahn.<br />
13. Orrin H. Pilkey, Keith C. Pilkey, and Linda Pilkey-Jarvis, ?The Cruelest Wave: Climate Refugees,? in Retreat from a Rising Sea: Hard Choices<br />
in an Age of Climate Change (New York: Columbia University Press, 2016), 136.<br />
14. Ibid., 134.<br />
15. Tasneem Sidiqqui, ?Impact of Climate Change: Migration as One of the Adaptation Strategies? (Working Paper Series no. 18, Refugee and<br />
Migratory Movements Research Unit, Dhaka, Bangladesh, 2010), 4.<br />
16. Tim McDonnell, ?Climate change creates a new migration crisis for Bangladesh? National Geographic, January 24, 2019,<br />
https://www.nationalgeographic.com/environment/article/climate-change-drives-migration-crisis-in-bangladesh-from-dhaka-sundabans.<br />
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The resulting displacement has put colossal pressures on<br />
Dhaka, Bangladesh's capital and one of the fastest-growing<br />
and most densely populated megacities in the world.<br />
Dhaka, still vulnerable to flooding, is plagued by extreme<br />
poverty, public health hazards, and human trafficking. It is<br />
estimated that up to 2,000 new migrants move to Dhaka<br />
every day. 17 One woman interviewed for National<br />
Geographic recalls watching her house crumble beneath a<br />
flood before migrating to Dhaka with her teenage<br />
daughters. She now lives in a slum where sewage runs<br />
freely, electricity is illegally tapped from the grid, single<br />
beds are occupied by five or more family members, and<br />
rent flows into a real estate black market controlled by<br />
corrupt local officials and businessmen. 18 According to the<br />
International Organisation for Migration (IOM), 40 percent<br />
of Dhaka?s residents live in slums like these; 70 percent of<br />
these slum-dwellers migrated due to environmental<br />
challenges. Tariq bin Yousef, a senior official at Dhaka<br />
City Corporation, a government agency that manages<br />
urban infrastructure, says that the local government plans<br />
to leave slum residents reliant on aid from local and<br />
international NGOs so as to avoid legitimizing the<br />
unsanctioned housing. 19 Migration to Dhaka is but a<br />
band-aid solution? the metropolis itself is situated<br />
between four flood-prone rivers growing increasingly<br />
volatile due to changing precipitation patterns and storm<br />
surges. 20 Considering Dhaka?s housing shortage and<br />
extreme poverty, migration to the city hardly decreases the<br />
vulnerability of migrants.<br />
Although the vast majority of displaced persons from<br />
coastal Bangladesh seek refuge in Dhaka, thus falling<br />
under the category of internally displaced persons (IDPs),<br />
the problem is not contained within national borders. In<br />
Climate Refugees: Protection Gaps in the International <strong>Law</strong><br />
May 2017, Bangladesh was the single largest origin of<br />
migrants arriving in Europe. 21 Still, this was a relatively<br />
small portion of international climate refugees from<br />
Bangladesh. Those who cross national borders typically<br />
land in India, itself vulnerable to the same environmental<br />
issues. The same meter rise in sea level that would drive<br />
one-fifth of Bangladesh underwater threatens to displace<br />
over seven million in India. It is estimated that<br />
Bangladeshi climate refugees have expanded India?s<br />
population by up to seventeen million over the last four<br />
decades. 22<br />
<strong>No</strong>ne of these migrants are entitled to protection under<br />
international refugee law? the hardships described above<br />
do not meet the criteria of the 1951 Refugee Convention.<br />
Thus, the case of Bangladesh illustrates the severity and<br />
complexity of the climate refugee crisis, exemplifying the<br />
indivisibility of climate change from social and economic<br />
issues and the necessity of protection. Climate-induced<br />
migration inside and outside of Bangladeshi borders levies<br />
immense pressure on local governments, urban<br />
infrastructure, and the agricultural industry in a nation<br />
already strained by obstacles to development. Although<br />
they may not face targeted persecution, Bangladeshis are<br />
beset with rapidly growing unemployment rates, land<br />
dispossession, extreme poverty, corrupt local officials, and<br />
potentially life-threatening conditions. The need for<br />
protection is uncontestable. Will the international<br />
community stand idly by as millions are threatened by the<br />
very problem it created?<br />
Policy Recommendations<br />
To fill the gaps in protection for climate refugees, the<br />
international refugee regime should seek to coalesce two<br />
existing entities: the Nansen Initiative and the Kampala<br />
17. ?Climate Displacement in Bangladesh,? Environmental Justice Foundation, accessed December 2019,<br />
https://ejfoundation.org/reports/climate-displacement-in-bangladesh.<br />
18. McDonnell.<br />
19.. Ibid.<br />
20. Kamali, 2.<br />
21. ?Climate Displacement in Bangladesh.?<br />
22. Architesh Panda, ?Climate Refugees: Implications for India,? Economic and Political Weekly 45, no. 20 (2010): 78.<br />
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Convention. First, the Nansen Initiative aims to build a<br />
consensus among states regarding a protection agenda for<br />
climate refugees and currently represents the only<br />
framework designed to govern cross-border<br />
climate-induced displacement. Importantly, the Nansen<br />
Initiative does not endeavor to develop new legal<br />
standards. Rather, it aims to establish a normative<br />
framework, or soft law, that can be applied at domestic,<br />
regional, and international levels. 23 The project, originally<br />
undertaken by the governments of <strong>No</strong>rway and<br />
Switzerland in 2012, has since expanded to include<br />
consultation of states across multiple continents.<br />
The Nansen Initiative?s Protection Agenda identifies<br />
effective practices for states receiving or sending refugees<br />
to govern the protection of climate refugees, each of which<br />
can be categorized under four guiding principles: (1)<br />
reducing vulnerability and building resilience; (2)<br />
facilitating migration out of hazardous areas before<br />
disaster strikes; (3) conducting planned relocation; and (4)<br />
responding to the needs of IDPs. 24 Each proposal in the<br />
Protection Agenda seeks to build a comprehensive<br />
framework for addressing climate refugee protection to<br />
replace the informal, ad hoc response regime currently<br />
accepted by the global community. The Protection Agenda<br />
includes recommendations such as increased<br />
climate-sensitivity in urban planning, research for climate<br />
adaptation technology and processes, and, crucially,<br />
engaging with women in vulnerable communities to ensure<br />
equity in the process of planning relocation. The Protection<br />
Agenda maintains that it is the responsibility of the state of<br />
origin to engage with affected communities to determine<br />
their need for relocation. 25 Perhaps its most novel<br />
argument, the Protection Agenda calls for the<br />
Climate Refugees: Protection Gaps in the International <strong>Law</strong><br />
establishment of an international institution to govern the<br />
protection of climate refugees, oversee the implementation<br />
of the proposed climate refugee regime, and facilitate<br />
cooperation between relevant regional actors. 26<br />
The Nansen Initiative represents a collaborative and<br />
intergovernmental effort to address the protection gaps for<br />
climate refugees in international law? in short, a step in<br />
the right direction. It serves to (1) gather illustrative data<br />
on current and past environmental migrants and (2)<br />
consolidate research on the most effective and<br />
cost-efficient approaches to managing climate-induced<br />
migration. The Nansen Initiative does not, however,<br />
constitute in itself a solution to the impending climate<br />
refugee crisis. First, it focuses almost exclusively on<br />
cross-border displacement and thus fails to answer to the<br />
projected millions of internally-displaced environmental<br />
refugees. Second, it does not champion any sort of<br />
international agreement, binding or otherwise.<br />
Many of the shortcomings of the Nansen Initiative are<br />
addressed in the African Union Convention for the<br />
Protection and Assistance of Internally Displaced Persons<br />
in Africa, or the Kampala Convention. Established in<br />
2012, the Kampala Convention is the first legally binding<br />
agreement to address the needs of IDPs and, in particular,<br />
those displaced by climate. Among other categories of<br />
IDPs, the Kampala Convention directly addresses<br />
climate-induced displacement and mandates that state<br />
parties bear the primary responsibility for the protection of<br />
climate refugees and ensure the accountability of non-state<br />
actors, including multinational corporations. 27 The<br />
following articles, drawn from the Kampala Convention,<br />
pertain directly to the governance of climate-induced IDPs.<br />
23. ?The Nansen Initiative,? The Nansen Initiative, accessed December 2019, https://www.nanseninitiative.org/.<br />
24. Ibid.<br />
25. The Nansen Initiative, ?Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change? (agenda,<br />
The Nansen Initiative, June 20, 2015), vi.<br />
26. Ibid., 15.<br />
27. African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), October 23, 2009,<br />
Kampala, Uganda, African Union, 13-14.<br />
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Article 3.2(a): State Parties shall incorporate their<br />
obligations under this Convention into domestic law<br />
by enacting or amending the relevant legislation on the<br />
protection of and assistance to internally displaced<br />
persons in conformity with their obligations under<br />
international law.<br />
Article 3.2(b): State Parties shall designate an<br />
authority or body, where needed, responsible for<br />
coordinating activities aimed at protecting and<br />
assisting IDPs and assign responsibilities to<br />
appropriate organs for protection and assistance, and<br />
for cooperating with relevant international<br />
organizations or agencies, and civil society<br />
organizations, where no such authority or body exists.<br />
Article 5(4): States Parties shall take measures to<br />
protect and assist persons who have been internally<br />
displaced due to natural or human made disasters,<br />
including climate change.<br />
Article 15(1): State Parties agree that except where<br />
expressly stated in this Convention, its provisions shall<br />
apply to all situations of internal displacement<br />
regardless of its causes. 28<br />
Provisions (a) and (b) under Article 3.2 expressly state the<br />
necessity of decentralizing the governance of climate<br />
refugees, calling upon states to enact domestic legislation<br />
and establish authoritative institutions to oversee<br />
protection. Article 5(4) explicitly addresses the legitimacy<br />
of climate refugees as a category of IDPs covered by this<br />
Convention and is further supported by other provisions<br />
that relate to disaster management? both man-made and<br />
natural. For example, Article 2(4) reads:<br />
Article 4(2): State Parties shall devise early warning<br />
systems, . . . establish and implement disaster risk<br />
reduction strategies, emergency and disaster<br />
preparedness and management measures. 29<br />
Perhaps most importantly, Article 15(1) mandates that<br />
Climate Refugees: Protection Gaps in the International <strong>Law</strong><br />
provisions be applied to "all situations of internal<br />
displacement." Therefore, other provisions of the<br />
Convention, although not explicitly designated to climate<br />
refugees, concern situations of climate-induced internal<br />
displacement. These include the right to protection from<br />
political, cultural, social, and economic exclusion under<br />
Article 1(b) and the right to seek and be granted asylum<br />
under the 1951 Refugee Convention, under Article 20(1).<br />
Further, the Kampala Convention details the obligation of<br />
states to seek the assistance of international organizations<br />
and actors under Article 5(6) should domestic efforts prove<br />
insufficient.<br />
Thus, the key takeaways from the Kampala Convention are<br />
(1) state parties are obligated to protect climate-induced<br />
IDPs; (2) state parties shall establish domestic institutions<br />
to govern the protection of IDPs, including those displaced<br />
by climate; (3) state parties are obligated to seek assistance<br />
from relevant international actors when domestic efforts<br />
fail; (4) the rights and obligations detailed are applicable to<br />
all IDPs, including those displaced by climate; and (5)<br />
state parties shall incorporate these rights and obligations<br />
in domestic law. However, like the Nansen Initiative, the<br />
Kampala Convention alone is insufficient. Although it is<br />
legally binding, the Kampala Convention applies only to<br />
signatories within the African Union, neglecting climate<br />
refugees in other parts of the world and exempting most<br />
countries from burden-sharing. It also governs only IDPs<br />
and thus excludes cross-border climate refugees. Although<br />
IDPs represent the majority of climate refugees, a<br />
comprehensive regime must protect both categories.<br />
The ideal framework for addressing climate refugees is a<br />
declaration that combines the provisions of the Kampala<br />
Convention with the proposals of the Nansen Initiative.<br />
Drawing on the Nansen Initiative, such a declaration<br />
would govern cross-border climate refugees, provide<br />
guidelines for building preventative climate resilience and<br />
planned relocation, and mandate consultation with women<br />
28. Ibid.<br />
29. Ibid.<br />
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and other particularly vulnerable groups within affected<br />
communities. Further, this declaration would accept the<br />
Nansen Initiative?s proposal to create an international<br />
institution for the governance of environmental migrants<br />
and mimic the Initiative?s method of global consultation<br />
during the process of establishment. Building on the<br />
Kampala Convention, this declaration would apply to IDPs<br />
as well as cross-border migrants, and establish climate<br />
refugees as a legally legitimate category entitled to<br />
protection. This declaration should remain consistent with<br />
the Kampala Convention?s appeal to incorporating<br />
protection measures within domestic law. In sum, the<br />
necessary declaration (1) governs both internal and<br />
international climate-induced migration; (2) provides<br />
well-researched, specific guidelines for planned relocation<br />
for both receiving and sending states; (3) encourages<br />
preventative measures to build climate resilience; (4)<br />
corresponds to an international institution; and (5)<br />
champions incorporation of the aforementioned provisions<br />
into domestic law.<br />
<strong>No</strong>te that the policy recommendation described above is<br />
not legally binding. This recommendation seeks to comply<br />
with the realities of the global order, in which a realist<br />
understanding of international relations requires a<br />
self-interest mechanism in international agreements. Under<br />
a binding agreement, states in the global <strong>No</strong>rth, far less<br />
vulnerable to the effects of climate change, may stand<br />
more to lose than to gain by accepting the obligations of<br />
such an agreement. By signing a binding agreement, states<br />
that do not face an immediate threat from climate change<br />
accept unknown financial and social costs. They stand only<br />
to gain from the rewards of organized hypocrisy? an<br />
enduring attribute of international relations whereby<br />
longstanding norms are frequently violated when a state is<br />
incentivized to do so. A non-binding political agreement,<br />
however, offers the same benefits to a participating<br />
state? increased respect on the world stage as a champion<br />
of human rights? without the costs. A non-binding<br />
declaration would serve as the foundation for a framework<br />
Climate Refugees: Protection Gaps in the International <strong>Law</strong><br />
on the governance of climate refugees while largely<br />
circumventing the issues of reservations, refusal to ratify,<br />
or other loopholes to compliance. Perhaps, as the climate<br />
crisis worsens, a binding convention will grow<br />
increasingly realistic and desirable. To stand idly by until<br />
such an opportunity presents itself, however, is to deny<br />
protection to millions of refugees. Until a binding<br />
convention becomes achievable, the international<br />
community must cooperate to establish a political<br />
agreement that will, at the very least, serve to legitimize<br />
the issue and provide a foundation for future developments<br />
in climate refugee law.<br />
Conclusion<br />
Ultimately, the protection gaps for climate refugees reveal<br />
a delay between the onset of global issues and adaptation<br />
in international law. Anthropogenic climate change is a<br />
relatively new challenge to international security and<br />
wellbeing that was not well understood when the Refugee<br />
Convention was drafted. Nevertheless, in order to honor<br />
the spirit of the Refugee Convention, international law and<br />
the refugee regime must respond to the consequences of<br />
climate change and the needs of millions of displaced<br />
persons across the globe. The international community<br />
must cooperate to create a political agreement that will<br />
invoke and strengthen the principle of burden-sharing to<br />
provide protection and assistance to this new and growing<br />
category of refugees. Establishing a declaration to protect<br />
climate refugees may prove useful in the global effort to<br />
address climate change mitigation as a whole. It would<br />
provide protection and assistance to the millions displaced<br />
by climate change. Such an international declaration would<br />
contribute to and stimulate important conversation about<br />
climate adaptation and mitigation on a global scale. The<br />
proposed agreement may bolster discussions in legal,<br />
academic, and public spheres surrounding responsibility<br />
and the necessity of taking legal action against climate<br />
change, a pressing and interdisciplinary issue that threatens<br />
the very existence of humanity. Overall, the establishment<br />
of an international declaration to govern the protection of<br />
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73
climate refugees is urgent and indispensable. However, it is<br />
also only the first step.<br />
Climate Refugees: Protection Gaps in the International <strong>Law</strong><br />
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NATIVE SOVEREIGNTY,<br />
JURISDICTION, AND THE<br />
EPIDEMIC OF SEXUAL VIOLENCE<br />
AGAINST NATIVE WOMEN<br />
Deborah Meirowitz<br />
ABSTRACT<br />
Native American legal sovereignty is recognized and protected by the United States Constitution, legal precedent, treaties,<br />
and human rights principles, but it is often suppressed by complex criminal jurisdiction codes and the present court<br />
system. The incompatibility between Western and Indigenous conceptions of sovereignty and self-government has led to<br />
the suppression of Native nations and the reduction of tribal criminal jurisdiction in Indian Country. This paper examines<br />
the history of Native jurisdiction as it relates to Native sovereignty in the U.S., considering three forms of legal<br />
sovereignty: de recto sovereignty or ?sovereignty by moral principle or right,? de jure sovereignty or ?sovereignty by<br />
legal decree or legislative act,? and de facto sovereignty, which is ?sovereignty in practice.? 1 Limitations to Native legal<br />
jurisdiction has created the current system of jurisdictional disarray which debilitates tribal governments. This paper<br />
argues that the U.S. federal and state governments?restriction of Native sovereignty has created a complex jurisdictional<br />
dynamic that endangers Native individuals and impedes justice, evidenced by the disproportionate impact of sexual<br />
violence on Native women. This epidemic of sexual violence demonstrates how the federal government fails to fulfill its<br />
codified obligations to protect Native people and, in many ways, perpetuates a colonial relationship with Native American<br />
and Alaska Native people. The U.S. federal and state governments?continuous erosion of tribal governmental authority<br />
hinders the development of effective mechanisms of tribal self-governance and law enforcement. This paper argues that<br />
the U.S. government must not limit Native jurisdiction as it inhibits tribal sovereignty. Furthermore, it advocates for a<br />
number of reforms and recognitions to protect Native nations?codified rights to legal sovereignty and self-determination.<br />
1. Joseph P. Kalt and Joseph William Singer, ?Myths and Realities of Tribal Sovereignty: The <strong>Law</strong> and Economics of Indian Self-Rule? (John F.<br />
Kennedy School of Government Harvard University Faculty Research Working Papers Series, 2004), 6.<br />
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75
Native Sovereignty, Jurisdiction, and the Epidemic of Sexual Violence Against Native Women<br />
Introduction<br />
sovereignty is ?sovereignty by moral principle or right,? de<br />
jure sovereignty is ?sovereignty by legal decree or<br />
Indigenous history in the United States is defined by<br />
legislative act,? and de facto sovereignty is ?sovereignty in<br />
resistance and the pursuit of sovereignty. Sovereignty is a<br />
practice.?<br />
highly contested term used to describe a state?s ?original,<br />
For instance, the U.S. government has curtailed<br />
tribal governments? power to investigate and prosecute<br />
absolute, unlimited, universal power over the individual<br />
subject and over all associations of subjects.? 2 criminal offenses in federal statutes and Supreme Court<br />
This<br />
decisions that include, but are not limited to, (1) the Major<br />
definition reflects how sovereignty is understood in the<br />
Crimes Act of 1885, (2) Public <strong>Law</strong> 280 of 1953, (3) the<br />
official archive: within a Western, Eurocentric framework.<br />
Indian Civil Rights Act of 1968, and (4) Oliphant v.<br />
This is exemplified by the recognition of Native<br />
sovereignty within the confines of the U.S. Constitution. 3 Suquamish Indian Tribe (1978). 9 The impact of imposing<br />
Western notions of sovereignty characterized by the<br />
In the United States, Native tribes officially exercise<br />
supremacy of a state? a political organization of typically<br />
self-governance, but their sovereignty relating to criminal<br />
elite individuals? over territory is evident in issues related<br />
and general civil jurisdiction is veritably limited by U.S.<br />
to jurisdiction and justice, contributing profoundly to the<br />
federal and state governments. According to case law<br />
epidemic of sexual violence inflicted upon Native<br />
established by Cherokee Nation v. Georgia (1831) and<br />
American women. The fundamental incompatibility of<br />
subsequent statutes such as the Indian <strong>Law</strong> Enforcement<br />
Native American conceptions of sovereignty with Western,<br />
Reform Act, Indian reservations are considered ?domestic<br />
capitalist land ownership necessitates the construction of<br />
dependent nations? for which the United States ?has<br />
more expansive, legitimate, and anti-colonial legal<br />
distinct legal, treaty, and trust obligations to provide for the<br />
public safety.? 4 5 paradigms of sovereignty to combat exploitation and<br />
Thus, tribal sovereignty is recognized<br />
injustice. These structures will help ensure that<br />
and protected by the U.S. Constitution, legal precedent,<br />
jurisdictional oversight, particularly as it relates to the<br />
treaties, and applicable human rights principles.<br />
epidemic of violence against Native women, does not<br />
Continuing a long history of infringing treaty rights, U.S.<br />
federal and state governments maintain de facto rule over<br />
both tribes and individual Indians in all manners of<br />
personal and civil affairs. 6 The United States has often<br />
exercised such authority de jure by its legal and<br />
continue to cause undue harm to Indigenous communities.<br />
The current system of jurisdictional disarray exacerbates<br />
the injustice victims of sexual violence experience.<br />
Therefore, the recognition of de facto sovereignty and<br />
tribal criminal jurisdiction and the expansion of tribal<br />
constitutional standards, while contrarily declaring<br />
self-government is necessary to protect Indigenous women<br />
Indigenous nations? de recto sovereignty. 7 De recto<br />
from sexual violence and support Native communities.<br />
2. Carol Weisbrod, Emblems of Pluralism: Cultural Differences and the State (Princeton: Princeton University Press, 2002), 30.<br />
3. ?Native,? ?Indigenous,? and ?Indian? are used interchangeably, as scholars employ varied terms to refer to Indigenous individuals and nations in<br />
the United States. Legal scholarship often refers to ?Indians? while other fields use the term ?Native Americans.? In this paper, ?Indian? is used in<br />
reference to U.S. statutes and common law and in cases in which ?Indian? is included in the Native nation?s name.<br />
4. Cherokee Nation v. Georgia, 30 U.S. 30 (1831).<br />
5. Indian <strong>Law</strong> Enforcement Reform Act, Pub. L. 111?211, title II, §202, July 29, 2010, 124 Stat. 2262.<br />
6. Kalt and Singer.<br />
7. Andrew Boxer, ?Native Americans and the Federal Government,? History Today, September 2009,<br />
https://www.historytoday.com/archive/native-americans-and-federal-government.<br />
8. Kalt and Singer, 6.<br />
9. Jasmine Owens, ??Historic?in a Bad Way: How the Tribal <strong>Law</strong> and Order Act Continues the American Tradition of Providing Inadequate<br />
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Native Sovereignty, Jurisdiction, and the Epidemic of Sexual Violence Against Native Women<br />
The U.S. government?s continued legal interference in<br />
Native American affairs highlights the unfortunate results<br />
of the paternalistic imposition of Eurocentric ideas of<br />
government and justice on distinct Native American and<br />
Alaska Native civilizations displaced by U.S. federal and<br />
state governments. Despite pledging to protect Native<br />
tribes? rights to sovereignty and self-determination, U.S.<br />
policy has refused Native nations the autonomy to govern<br />
themselves according to their worldviews. The result is a<br />
confusing body of law arbitrating Native American tribes?<br />
rights and constitutional statuses, enabling atrocious<br />
miscarriages of justice. Violence against Native American<br />
women is one example of this rift between legal structures,<br />
as perpetrators escape through the holes in the complex<br />
jurisdictional system while victims suffer due to<br />
insufficient sources of support and redress.<br />
The History of Native Sovereignty in the United States<br />
Indigenous conceptions of nationhood and sovereignty and<br />
the spiritual connection between Indigenous peoples and<br />
the land they inhabit are naturally in conflict with<br />
Eurocentric jurisdictional legal codes defined by individual<br />
as ?deviant,? portraying their societies as lawless.<br />
Indigenous peoples were considered ?savages,? serving as<br />
justification for the expropriation of Native lands and<br />
criminalization. 12 The creation of the Bureau of Indian<br />
Affairs in 1824 exemplifies the U.S. federal government?s<br />
restriction of Native sovereignty; the federal government<br />
began to impose federal law on nonconsenting, supposedly<br />
semi-sovereign (according to the 1823 Johnson v.<br />
McIntosh decision) Indian tribes due to calls for the<br />
Department of the Interior to take action against ?savage<br />
and barbarous? Natives. 13 This is one of many instances of<br />
violent policies mandating assimilation and adherence to<br />
?civilized law.? 14 As a result, American Indian assertions<br />
of sovereignty and self-determination have dissolved into<br />
U.S. territoriality. 15 Colonialism?s racialization of Native<br />
people generated the conceptualization of the ?savage<br />
inferior.? 16 Consequently, U.S. policy takes a paternalistic<br />
approach in which the government fulfills its obligations to<br />
provide for the public safety of American Indian and<br />
Alaska Native people by asserting control over their<br />
criminal investigations and prosecutions. 17 To understand<br />
this intricate jurisdictional dynamic, one must first<br />
ownership. 10 Many traditional tribal codes were<br />
understand the legal precedents? Supreme Court cases,<br />
criminalized when the United States imposed its laws and<br />
culture on Native people post-colonization via statutes<br />
treaties, and statutes? that led to the current state of<br />
jurisdictional disarray.<br />
enforcing policies of assimilation and dispossession, such<br />
In the Tribal <strong>Law</strong> and Order Act of 2010, Congress<br />
as the Civilization Fund Act (1819), the Indian Removal<br />
Act (1830), and the Dawes Act (1887). 11 describes the complex mix of federal, state, and tribal<br />
Thus, the state<br />
authorities responsible for prosecuting incidents occurring<br />
and federal governments expressed cultural superiority via<br />
on Native land and those perpetrated by or against<br />
federal assimilation policies and prohibitive geographical<br />
American Indian and Alaska Native residents as a<br />
jurisdictional legislation. They defined Native Americans<br />
?complicated jurisdictional scheme.? 18 Indigenous nations<br />
10. Luana Ross, Inventing the Savage: The Social Construction of Native American Criminality (Austin: University of Texas Press, 1998), 16.<br />
11. Ibid.<br />
12. Ibid.<br />
13. Ibid., 5.<br />
14. Ibid., 17.<br />
15. Jodi A. Byrd, Transit of Empire: Indigenous Critiques of Colonialism (Minneapolis: University of Minnesota Press, 2011), 137.<br />
16. Ross, 16.<br />
17. Kalt and Singer, 3.<br />
18. Tribal <strong>Law</strong> and Order Act of 2010, Pub. L. <strong>No</strong>. 111-211, § 202(a)(4), 124 Stat. 2261, 2262.<br />
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Native Sovereignty, Jurisdiction, and the Epidemic of Sexual Violence Against Native Women<br />
are the ?original sovereigns and owners? of the land<br />
occupied by the United States but must now defer to U.S.<br />
federal jurisdictional decisions. 19 Thus, the U.S.<br />
government recognizes that Indigenous nations?<br />
sovereignty has been diminished but not entirely<br />
eliminated. It granted tribes the ability to exercise<br />
considerable, albeit limited, sovereignty defined by<br />
restrictions on tribal criminal jurisdiction (e.g., sentencing<br />
limitations and jurisdiction or lack thereof over<br />
non-Indians) and various other legal holdings. Additional<br />
legal holdings include, but are not limited to, the<br />
termination of the legal status of tribes and their property,<br />
the conscription of citizens of tribes into the army, and the<br />
authorization of state and municipal governments to<br />
exercise sovereignty over tribal citizens. 20<br />
Indigenous notions of sovereignty are different from<br />
Western ones, which are based on territorial<br />
control? including control obtained and maintained by<br />
force. According to Dr. Luana Ross, a sociologist of the<br />
Confederated Salish and Kootenai Tribes, ?Sovereignty is<br />
inherent; it comes from within a people and their<br />
culture.? 21 As such, many Indigenous cultures do not<br />
consider land to be a resource that can be conquered or<br />
owned by man, as man belongs to the land; ?I belong to<br />
this land? is the articulation of this concept, which directly<br />
contrasts with the classic Western belief that, ?This land<br />
belongs to me.? 22 Dr. Jodi Byrd, a Chickasaw academic,<br />
shares this sentiment, saying, ?Chickasaw sovereignty is<br />
. . . . unconquered and unconquerable.? 23 Thus, Byrd?s and<br />
Ross?s statements reflect the spiritual nature of Indigenous<br />
notions of sovereignty and highlight the complexities of<br />
the term?s interpretations. This distinction has posed<br />
significant barriers to sustainable tribal self-governance.<br />
The U.S. federal government created internally<br />
contradictory predicaments. It recognized de recto and de<br />
jure sovereignty but stripped Native nations of their de<br />
facto sovereignty by prohibiting them from exercising<br />
authority for their ?betterment.? De recto and de jure<br />
sovereignty are both performative and admittedly limited,<br />
existing on paper via statutes and common law but not in<br />
reality as jurisdiction, for instance, is limited. In contrast,<br />
the federal government disparately applied principles of<br />
self-governance to white settlers by recognizing their de<br />
facto sovereignty. In this way, the same systems that<br />
promote human rights and recognitions (de recto and de<br />
jure) authorize the dispossession of Indigenous peoples for<br />
?the common good.? 24 These abuses are delineated by<br />
decades of broken treaties and bloodshed. In the United<br />
States, Indian tribes are considered ?domestic dependent<br />
nations? under the law. 25 Despite this, there are distinct<br />
types of sovereignty that Indigenous nations encounter in<br />
the United States: de recto sovereignty, de jure<br />
sovereignty, and de facto sovereignty. Indigenous nations<br />
have made a compelling case asserting de recto<br />
sovereignty, lobbied for de jure sovereignty, and have<br />
struggled to secure de facto sovereignty. 26 In some<br />
instances, the U.S. federal government has recognized the<br />
de recto and de jure sovereignty of Indigenous nations. For<br />
example, the Commerce Clause grants the U.S. federal<br />
government ?plenary power . . . over residents within their<br />
19. Kalt and Singer, 15.<br />
20. Ibid., 1.<br />
21. Ross, 3.<br />
22. Bishop Kristyna, ?This Land Knows Me: Indigenous Land Rights,? Cultural Survival Quarterly Magazine, March 2001,<br />
https://www.culturalsurvival.org/publications/cultural-survival-quarterly/land-knows-me-indigenous-land-rights.<br />
23. Byrd, xvii.<br />
24. Ibid., xix.<br />
25. ?Attorney General June 1, 1995 Memorandum on Indian Sovereignty,? Office of the Attorney General, The United States Department of Justice,<br />
March 8, 2017, https://www.justice.gov/archives/ag/attorney-general-june-1-1995-memorandum-indian-sovereignty.<br />
26. Kalt and Singer, 6.<br />
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borders with the semi-autonomous status of Indians living to Johnson v. McIntosh and statutes mandating land<br />
on tribal reservations,? thus recognizing the allotment, such as the Dawes Act, which gave the federal<br />
?semi-autonomous? status of Native nations (de jure and<br />
de recto sovereignty) while contrarily eroding tribal<br />
sovereignty by limiting tribal governments? regulatory<br />
authority (denying de facto sovereignty). 27 Thus, the<br />
Commerce Clause fails to ensure de facto sovereignty as it<br />
empowers Congress to restrict tribal regulatory authority.<br />
As a result of this Clause, the United States has the legal<br />
means to assert extraterritorial sovereignty over ?Indian<br />
government ?plenary power? over the internal and external<br />
affairs of Indian tribes, Native Americans must only sell<br />
their land to the federal government as a result of their<br />
colonization. 32 33 Land allotment as codified by Dawes<br />
essentially separated individuals from their nations to<br />
assist in the process of assimilation and gave the federal<br />
government the power to expand, contract, or abolish tribal<br />
sovereignty and confiscate Native land with little to no<br />
Country.? 28<br />
compensation. 34 Hence, the federal government<br />
distinguishes between the right to occupy the land and the<br />
Three precedential tribal sovereignty cases are Johnson v.<br />
right to own it, an issue of jurisprudence concerning<br />
McIntosh (1823), Cherokee Nation v. Georgia (1831), and<br />
Worcester v. Georgia (1832). 29 In Johnson v. McIntosh, the<br />
Supreme Court ruled that the Piankeshaw tribe? a tribe<br />
that sold its land to a private individual named Thomas<br />
Johnson? did not have the right to convey the land.<br />
Therefore, priority rights to the property remained with<br />
William McIntosh, who had allegedly been given a land<br />
patent to the same land by the federal government. 30 In the<br />
Native lands that persists today. 35<br />
Similar to the Supreme Court?s earlier ruling, the Court?s<br />
decision in Cherokee Nation v. Georgia further limited the<br />
sovereignty of Indian nations. In the 1831 case, the<br />
Cherokee Nation filed a lawsuit against the state of<br />
Georgia requesting ?relief from state jurisdiction on their<br />
land.? 36 The Cherokee Nation argued its rights as a<br />
Court?s unanimous decision, Justice Marshall argued that ?sovereign and independent state,? which were<br />
?discovery patterns? during the European colonization of<br />
the New World dictated that European powers secured<br />
sovereignty over the land they settled. According to<br />
Marshall?s argument, the U.S. federal government<br />
inherited the right to the land from the British. 31 According<br />
consistently recognized in treaties between its Nation and<br />
the United States. According to the Cherokee Nation?s<br />
lawsuit, the Georgia laws stripped the Nation?s right to<br />
self-governance and judicial sovereignty, displacing the<br />
Nation from its land and violating the treaty that was<br />
27. U.S. Const. art. I, § 8.<br />
28. Byrd, 137.<br />
29. ?An Issue of Sovereignty,? National Conference of State Legislatures, January 2013,<br />
https://www.ncsl.org/research/state-tribal-institute/an-issue-of-sovereignty.aspx.<br />
30. Thomas Johnson and Graham's Lessee v. William M'Intosh, 21 U.S. 543 (1823).<br />
31. Ibid.<br />
32. According to the Harvard <strong>Law</strong> <strong>Review</strong>, ?plenary power? essentially limits tribal authority, emphasizing the ?absolute sovereignty? of the United<br />
States by giving Congress the same authority over Indian affairs as states have over their citizenry. The Marshall Trilogy rulings? Johnson v.<br />
McIntosh, Cherokee Nation v. Georgia, and Worcester v. Georgia? led to the reduction of tribes?rights. See: ?Herrera v. Wyoming,? Harvard <strong>Law</strong><br />
<strong>Review</strong> 133, no. 402 (2019): 407.<br />
33. Johnson v. McIntosh, 21 U.S. 543 (1823).<br />
34. Ablavsky, 1014.<br />
35. ?An Issue of Sovereignty.?<br />
36. Ibid.<br />
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signed on March 22, 1816, between the United States and political and legal sovereignty by creating and enforcing<br />
the Cherokee Nation. 37 38 In Cherokee Nation v. Georgia, their own laws on tribal lands but must still yield to the<br />
the Supreme Court held that the Cherokee people did not legal limitations imposed on their jurisdictions by the U.S.<br />
constitute a foreign nation as discussed in Article III of the federal government. 45 Furthermore, the ruling addressed<br />
U.S. Constitution. 39 40 Therefore, the Court dismissed the the issue of ownership versus occupancy by asserting that<br />
case, as the federal judiciary lacked jurisdiction to hear the ?Indians have rights of occupancy to their lands . . . but<br />
claims of ?an Indian nation? against their state of they are only rights of occupancy.? 46<br />
residence. 41 In the opinion, tribes were described as<br />
In contrast with the aforementioned cases, the decision in<br />
?domestic dependent nations? that are ?in a state of<br />
Worcester v. Georgia strengthened Indigenous sovereignty,<br />
pupilage? and ?subject to many of those restraints which<br />
ruling that the Constitution considers Indian tribes to be<br />
are imposed upon our own [U.S.] citizens,? with a<br />
separate political entities whose sovereign power is not<br />
federal?tribal relationship resembling ?that of a ward to his<br />
superseded by state law. Additionally, the case stipulated<br />
guardian.? 42 Thus, the Supreme Court lacked jurisdiction<br />
that tribes have civil jurisdiction over non-members on<br />
to hear the claims of an Indian nation against Georgia?s<br />
land within reservation borders. 47 While the Court did not<br />
state government because Indian nations do not constitute<br />
overturn Cherokee Nation v. Georgia in this decision,<br />
?foreign nation[s]? under Article III due to their<br />
Justice Marshall concedes that ?the Cherokee Nation, then,<br />
dependency according to the decision. 43 The opinion<br />
is a distinct community occupying its own territory . . . in<br />
describes ?dependency,? explaining that tribes look to the<br />
which the laws of Georgia can have no force? in the<br />
?government for protection,? relying ?on its kindness and<br />
majority opinion. 48 However, he does not go so far as to<br />
its power.? 44 This is indicative of the paternalistic nature of<br />
define them as a ?foreign nation.? 49 Thus, this concession<br />
the United States? relationship with tribal<br />
is indicative of the confusing and contradictory<br />
governments? Indigenous nations can exercise their<br />
inconsistencies in court decisions and statutes that inhibit<br />
37. This Treaty with the Cherokee created boundaries between Cherokee land and distinct U.S. states, establishing peace, friendship, and sovereignty<br />
for the Cherokee Nation in Cherokee Country. See: William Penn, ?NO. XI,? Cherokee Phoenix, October 28, 1829,<br />
https://www.wcu.edu/library/DigitalCollections/CherokeePhoenix/<strong>Vol</strong>2/no29/no-xi-page-1-column-4a.html.<br />
38. ?Cherokee Nation v. Georgia,? Federal Judicial Center, accessed December 1, 2020,<br />
https://www.fjc.gov/history/timeline/cherokee-nation-v-georgia.<br />
39 Section II of Article III deals with judicial relations between the U.S. federal government and foreign states. It states that ?the judicial power shall<br />
extend to all cases, in law and equity, arising under this Constitution . . . between a state and citizens of another state;? between Citizens of different<br />
States;? between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign<br />
States, Citizens or Subjects.? See: U.S. Const. art. III, §2, cl. 1.<br />
40. ?Cherokee Nation v. Georgia,? Federal Judicial Center.<br />
41. Ibid.<br />
42. ?An Issue of Sovereignty.?<br />
43. Cherokee Nation v. Georgia, 30 U.S. 18 (1831).<br />
44. Ibid., 30 U.S. 19.<br />
45. Amnesty International, Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA (New York: Amnesty<br />
International USA, 2007), 28.<br />
46. Ibid., 30.<br />
47. ?An Issue of Sovereignty.?<br />
48. Worcester v. Georgia, 31 U.S. 31, 515 (1832).<br />
49. Ibid.<br />
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Native nations from being free of unlawful regulation by<br />
U.S. federal and state governments. Without eliminating<br />
illegal regulation, Native nations cannot attain de facto<br />
sovereignty. Though President Andrew Jackson declined to<br />
enforce the ruling, Worcester v. Georgia has served as the<br />
foundation for subsequent U.S. law regarding tribal<br />
sovereignty, as it established that only Congress has<br />
oversight over Indigenous nations? affairs, state laws are<br />
not applicable in Indian Country, and tribes do not lose<br />
their sovereignty completely by becoming subject to the<br />
United States? power. 50 51 Despite this significant ruling,<br />
jurisprudence regarding jurisdiction has been inconsistent<br />
and perplexing.<br />
U.S. Legal Limitations on Native Jurisdiction<br />
The issue of legal limitations is exacerbated by the fact that<br />
federal agencies, in many cases, control funds for tribal<br />
governments? services. As discussed regarding Cherokee<br />
Nation v. Georgia, the U.S. federal government assumed<br />
legal responsibility to ensure the ?protection of the rights<br />
and wellbeing of American Indians and Alaskan<br />
Natives.? 52 In an attempt to fulfill these obligations, the<br />
federal government has exerted more control over criminal<br />
investigations and prosecutions involving American<br />
Indians and Alaska Natives. 53 Three pieces of legislation<br />
and a Supreme Court decision have inhibited the power of<br />
tribal governments to investigate and prosecute criminal<br />
offenses: the Major Crimes Act of 1885, Public <strong>Law</strong> 280<br />
of 1953, the Indian Civil Rights Act of 1968, and Oliphant<br />
v. Suquamish Indian Tribe (1978). 54<br />
The Major Crimes Act granted federal authorities, not<br />
Native, jurisdiction over ?major crimes? committed in<br />
Indian Country, essentially ignoring tribal jurisdiction. 55<br />
These major crimes include ?murder, manslaughter,<br />
kidnapping, maiming, assault with intent to commit<br />
murder, assault, felony child abuse or neglect, arson,<br />
burglary, robbery, and rape committed by an Indian against<br />
the ?person or property of another Indian or other<br />
person.?? 56 However, the law did not explicitly grant<br />
exclusive jurisdiction to the federal government, and<br />
courts interpret the statute differently. According to some<br />
courts, the statute excludes tribal jurisdiction over<br />
American Indian and Alaska Native offenders. In contrast,<br />
others hold that ?tribal courts retain concurrent jurisdiction<br />
if the crime is committed in Indian Country by an<br />
American Indian or Alaska Native perpetrator.? 57<br />
Overall, the Major Crimes Act restricted tribal authority,<br />
placing a legal obligation to provide for the public safety<br />
of Native nations. For instance, Ronnie Tom is a Colville<br />
Indian man who raped a child on the Colville Indian<br />
reservation and received minimal punishment due to his<br />
race and location. 58 Tom?s case fell under federal<br />
jurisdiction because he committed his crime on the<br />
Colville Indian reservation in Washington. Though the<br />
seven-year-old victim?s testimony was considered ?clear<br />
and credible,? Tom was not charged with a felony because<br />
the federal court declined to prosecute him, and federal<br />
50. The Worcester v. Georgia ruling did not prevent the displacement of Cherokees in what is known as the Trail of Tears. These inconsistencies in<br />
rulings led to lack of enforcement and complete disregard for tribal sovereignty on treaty-guaranteed lands. See: Lance F. Sorenson, ?Tribal<br />
Sovereignty and the Recognition of Power,? American Indian <strong>Law</strong> <strong>Review</strong> 42, no. 1 (2017): 104.<br />
51. ?An Issue of Sovereignty.?<br />
52. Amnesty International, 2.<br />
53. Ibid., 28.<br />
54. Owens, 504.<br />
55. Ibid.<br />
56. Ibid.<br />
57. Ibid.<br />
58. Ibid., 497.<br />
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laws prevented the tribe from sentencing Tom to more than<br />
a ?year of incarceration per crime, . . . a $5000 fine, or<br />
both.? 59 While we do not know why the federal court<br />
exclusive jurisdiction over all crimes committed by<br />
non-Indians. Moreover, Public <strong>Law</strong> 280 requires states to<br />
oversee law enforcement activities for which Congress<br />
declined to prosecute Tom? such information is fails to provide funds. As a result, tribal and state<br />
confidential? we know that there is an Indian reservation<br />
declination rate of 72 percent for prosecuting child sex<br />
crimes, 58 percent for aggravated assaults, and 50 percent<br />
for murder and manslaughter. 60 This declination rate can<br />
authorities have not received adequate funding to assume<br />
their respective law enforcement responsibilities, resulting<br />
in troubled relations between tribal and state officials in<br />
some communities and a sense of ?lawlessness? overall. 62<br />
be attributed to many factors which include, but are not The legacy of colonialism and this current-day<br />
limited to, shoddy investigations, discrimination, and poor<br />
forensic evidence. Unfortunately, stories like these are not<br />
uncommon. Thus, the U.S. government?s lack of respect<br />
for tribal law and law enforcement authorities prevents<br />
tribal governments from exercising the political and legal<br />
sovereignty codified in the treaties they have signed with<br />
the United States.<br />
jurisdictional maze have hindered the development of<br />
effective mechanisms of tribal self-governance and law<br />
enforcement. Thus, the U.S. federal government must<br />
provide tribal authorities with the funding and resources<br />
necessary to enable the development of tribal courts that<br />
are effective and capable of operating in accordance with<br />
international standards. 63<br />
Furthermore, with Public <strong>Law</strong> 280 of 1953, the federal<br />
government transferred jurisdiction over criminal offenses<br />
involving Native Americans in Indian Country to state<br />
governments. 61 Thus, this law gave tribal and state<br />
authorities concurrent jurisdiction over crimes committed<br />
on tribal land by American Indians or Alaska Natives<br />
without the consent of the governed. Indigenous people<br />
and legal scholars alike see this as an affront to tribal<br />
sovereignty, as it gave states the option to relinquish or<br />
assume jurisdiction, expanding state governments?criminal<br />
and civil jurisdiction in Indian Country? an option not<br />
afforded to tribal nations, as the federal government<br />
assumes exclusive jurisdiction over major crimes in the<br />
case of interracial crime and the state government assumes<br />
In the same vein as Public <strong>Law</strong> 280, the Indian Civil<br />
Rights Act casts tribal sovereignty aside as it ?limits the<br />
penalty which can be imposed by tribal courts for any<br />
offense? including murder or rape? to a maximum of one<br />
year?s imprisonment and a $5,000 fine.? 64 The act<br />
blatantly disrespects tribal sovereignty by restricting the<br />
punishment that a tribe may impose on a criminal<br />
defendant. This sends a message that tribal justice systems<br />
can only handle less serious crimes, thus limiting their<br />
custodial sentencing powers and inhibiting tribal courts<br />
from prosecuting serious crimes such as sexual violence. 65<br />
Furthermore, tribal courts suffer from a lack of funding,<br />
out-of-date tribal codes, and a lack of resources to rework<br />
their codes. In combination with Public <strong>Law</strong> 280 and the<br />
59. Ibid., 499.<br />
60. The Tribal <strong>Law</strong> and Order Act of 2009: Hearing on S. 797, Before the Committee on Indian Affairs, 111th Cong. 2 (2009) (opening statement of<br />
Hon. Bryan L. Dorgan, U.S. Senator from <strong>No</strong>rth Dakota).<br />
61. Owens, 507.<br />
62. Amnesty International, 29.<br />
63. Ibid.,12.<br />
64. Ibid., 29.<br />
65. Ibid.<br />
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Major Crimes Act, the Indian Civil Rights Act is ?a (1981), the Court reversed its ruling in Worcester, holding<br />
practical divestiture of all tribal jurisdiction over major that tribes generally have no civil jurisdiction over<br />
crimes committed by American Indians or Alaska Natives non-members, ?at least on non-member owned land within<br />
in Indian Country.? 66<br />
reservation borders.? 68<br />
Lastly, in another blow to tribal jurisdiction, the Supreme<br />
Court?s ruling in Oliphant v. Suquamish Indian Tribe<br />
dictated that tribal courts could not exercise criminal<br />
jurisdiction over non-Indian citizens. This decision<br />
arguably represents the most egregious reduction of<br />
sovereignty by the U.S. government to date; it is of<br />
particular concern considering the disproportionately high<br />
volume of reports of sexually violent crimes committed<br />
against American Indian women by non-American Indian<br />
men. The ruling grants federal and state law enforcement<br />
officials the sole authority to intervene. According to<br />
Amnesty International?s Maze of Injustice report, the ?gap<br />
in jurisdiction or enforcement has encouraged non-Indian<br />
individuals to pursue criminal activities of various kinds in<br />
Indian Country.? 67 Thus, criminal activity in Indian<br />
Country, such as sexual violence, is indicative of the<br />
horrific consequences of jurisdictional issues for<br />
Indigenous peoples. Limits on tribal jurisdiction hinder<br />
tribal governments? abilities to exercise sovereignty and<br />
protect their citizens. The lack of communication between<br />
tribal authorities and U.S. federal and state governments<br />
and deficient resources for tribal governments cause many<br />
crimes to fall through the cracks, exacerbating the ?maze<br />
of injustice.? Furthermore, Oliphant v. Suquamish Indian<br />
Tribe marked the beginning of the Supreme Court?s<br />
trajectory of reducing tribal powers over non-Indians.<br />
Three years after Oliphant, in Montana v. United States<br />
The jurisdictional maze?s most recent expansion occurred<br />
on July 29, 2010, when President Barack Obama signed<br />
the Tribal <strong>Law</strong> and Order Act of 2010 to address the<br />
epidemic of sexual violence against Native women. The<br />
act was lauded as ?historic? with its stated purpose to<br />
?reduce the prevalence of violent crime in Indian Country<br />
and to combat sexual and domestic violence against<br />
American Indian and Alaska Native women.? 69 Despite its<br />
positive press, the legislation does not do enough to protect<br />
women who have experienced rape and sexual violence, as<br />
it does not recognize the right of tribal authorities to<br />
prosecute rape and other serious felonies ?and continues to<br />
restrict tribal courts?authority to punish tribal members.? 70<br />
Jurisdiction and Native Sexual Violence Survivors<br />
Since Montana v. United States in 1981, the Supreme<br />
Court has become increasingly unwilling to grant<br />
Indigenous nations regulatory powers and court<br />
jurisdiction over non-members. 71 Due to the limitations on<br />
tribal governments? criminal jurisdiction, justice for<br />
victims of sexual violence rests on state authorities.? 72<br />
Where Public <strong>Law</strong> 280 is applied, state police and<br />
prosecutors have exclusive jurisdiction over crimes<br />
committed by non-Native perpetrators on tribal land and<br />
concurrent jurisdiction with tribal officials over crimes<br />
committed by Native perpetrators concurrent jurisdiction<br />
with tribal officials over crimes committed by Native<br />
66. Owens, 508.<br />
67. Amnesty International, 30.<br />
68. Kalt and Singer, 16.<br />
69. Owens, 500.<br />
70. Ibid.<br />
71. Kalt and Singer, 17.<br />
72. Amnesty International, 31.<br />
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perpetrators on tribal land.<br />
73 74<br />
Native Sovereignty, Jurisdiction, and the Epidemic of Sexual Violence Against Native Women<br />
That said, the largest impediment to victims? pursuit of<br />
justice is the discretion of federal prosecutors to either<br />
prosecute or decline a case. Former U.S. Attorney<br />
Margaret Chiara confessed that federal prosecutors<br />
actively avoid prosecuting rape cases from Indian Country,<br />
stating, ?I?ve had [Assistant U.S. Attorneys] look right at<br />
me and say, ?I did not sign up for this?. . . they want to do<br />
big drug cases, white-collar crime, and conspiracy.? 75<br />
According to Chiara, most federal judges see Indian<br />
Country cases and share the sentiment of the prosecutors,<br />
with one complaining, ?I could have stayed in state court if<br />
I wanted this stuff.? 76 Moreover, other prosecutors attribute<br />
their frequent rejection of American Indian and Alaska<br />
Native rape cases to poorly conducted investigations and<br />
lacking forensic evidence. 77 Due to federal jurisdiction<br />
requirements, rape is generally not a crime prosecuted in<br />
federal courts, Native jurisdictional issues aside. Sex crime<br />
investigation and litigation almost always begin locally, as<br />
federal sex crime investigations and trials are far more<br />
complex and expensive; therefore, even outside of Indian<br />
Country, federal prosecutors declined to prosecute about<br />
26 percent of the rape cases filed in 2000. Still, this is<br />
nothing compared to the staggering 65 percent of rape<br />
cases that federal prosecutors declined to prosecute from<br />
Indian Country in 2011. 78 There are similar obstacles to<br />
justice in tribal and state courts? not to mention additional<br />
barriers, like the distance Native victims must travel (from<br />
remote Indian Country locations to courts), language<br />
barriers, unrepresentative jury selections, and<br />
discrimination against them. 79 Victims face further<br />
hardship in securing rape kits and communicating with<br />
prosecutors to prepare for trial. 80 Prosecuting perpetrators<br />
is also a challenge, as they sometimes evade prosecution<br />
by running off to different jurisdictions.<br />
81 82<br />
American Indian and Alaska Native people suffer from a<br />
disproportionately high rate of sexual assault. 83 Data from<br />
the U.S. Department of Justice shows that Native women<br />
are ?2.5 times more likely to be assaulted than women in<br />
the U.S. in general.? 84 Studies show that, though assaults<br />
on American Indian and Alaska Native women are ?more<br />
violent than rapes suffered by the general population,? the<br />
rapes often go unprosecuted. 85 The complex jurisdictional<br />
system decreases accountability for all law enforcement<br />
73. Public <strong>Law</strong> 280 is applied in California, Minnesota, Nebraska, Oregon, Wisconsin, and Alaska. Congress mandatorily conferred extensive<br />
criminal and civil jurisdiction over tribal lands to the six states aforementioned (the so-called ?mandatory states?). Public <strong>Law</strong> 280 also permits states<br />
in which it is not applied to acquire jurisdiction at their request. See: ?Public <strong>Law</strong> 280,? Tribal Court Clearinghouse, Tribal <strong>Law</strong> and Policy Institute,<br />
http://www.tribal-institute.org/lists/pl280.htm.<br />
74. Amnesty International, 31.<br />
75. Owens, 511.<br />
76. Ibid.<br />
77. Ibid.<br />
78. Ibid., 512.<br />
79. Ibid.<br />
80. Ibid.<br />
81. As previously discussed, jurisdictions are strictly separated into tribal, state, or federal land. Thus, perpetrators can take advantage of this rigidity<br />
and escape prosecution by crossing borders into a different jurisdiction from that in which they committed the crime. For instance, unless federal,<br />
state, and tribal agencies enter into extradition agreements, in a non-Public <strong>Law</strong> state, a state police officer does not have jurisdiction to arrest a tribal<br />
member for a crime committed outside of Indian Country if that tribal member is on tribal lands. See: Owens, 512.<br />
82. Ibid., 512.<br />
83. Ibid., 499.<br />
84. Amnesty International, 2.<br />
85. Owens, 5000.<br />
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Native Sovereignty, Jurisdiction, and the Epidemic of Sexual Violence Against Native Women<br />
system decreases accountability for all law enforcement<br />
agencies involved, as cases are often mishandled if they<br />
have not already slipped through the cracks. Investigation<br />
and prosecution processes are chronically underfunded and<br />
mismanaged? issues that make justice processes for<br />
Issues of jurisdiction and challenges to Native sovereignty<br />
are particularly glaring in the Standing Rock Sioux<br />
Reservation, where high numbers of Native women have<br />
been assaulted by non-Natives working on the Dakota<br />
Access Pipeline (DAPL)? a project that first began in<br />
Native peoples in the U.S. inconsistent with international 2016 and is demonstrative of the U.S. federal<br />
human rights standards. 86 Various authorities?jurisdictions<br />
overlap, resulting in uncertainty that inhibits intervention<br />
and leaves victims without legal protection or redress: this<br />
dual jurisdiction leads to ?impunity for perpetrators.? 87<br />
According to the Department of Justice, ?At least 86% of<br />
the reported cases of rape or sexual assault against<br />
American Indian and Alaska Native women are committed<br />
by non-Native men.? 88<br />
government?s continued disregard for treaties such as the<br />
Treaty of Fort Laramie (1868). 91 The construction of the<br />
DAPL conflicts with the rights codified in treaties, as the<br />
area in which the pipeline is to be constructed was ?set<br />
apart for the absolute and undisturbed use, and occupation<br />
of the Indians herein named,? as prohibited by the Treaty<br />
of Fort Laramie. 92 The Treaty also states that if ?bad men<br />
among the whites, or among other people subject to the<br />
authority of the United States? do wrong against the<br />
Furthermore, sexual violence against women is generally<br />
?person or property of the Indians,? they shall be arrested<br />
underreported. Explanations for this issue include fear of<br />
and punished according to the laws of the United States.<br />
breaches in confidentiality, the threat of retaliation, and<br />
Activists, survivors, and support workers on the Standing<br />
lack of confidence that reports will be seriously<br />
Rock Sioux Reservation contend that rates of sexual<br />
considered. In 2001, UN Special Rapporteur on violence<br />
violence on the reservation are disproportionately high.<br />
against women, Radhika Coomaraswamy, asserted that<br />
Authorities are unsure of actual perpetration and<br />
?Indigenous women . . may fear State authority, if the<br />
prosecution rates, as sexual violence reporting rates are<br />
police have traditionally used coercive and violent means<br />
of criminal enforcement in their communities.? 89 notoriously low due to the stigma associated with<br />
These<br />
victimhood. According to Andrea Smith, Assistant<br />
facts, combined with the jurisdictional nightmare that<br />
Professor of Native Studies at the University of Michigan,<br />
inhibits justice for Native victims of sexual violence, are in<br />
non-Native perpetrators often seek out victims on<br />
many ways a continuation of the United States?colonial<br />
reservations because they know they can inflict violence<br />
relationship with Native American and Alaska Native<br />
people. 90<br />
without legal repercussions. 94 Thus, violent crimes can be<br />
86. The UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power claims that victims must be ?kept informed of the<br />
scope, timing and progress of proceedings and of the disposition of their cases; and protected from intimidation and retaliation? to ensure<br />
accountability for law enforcement agencies and dignity for victims. See: Amnesty International, 20.<br />
87. Ibid., 9.<br />
88. Owens, 502.<br />
89. Amnesty International, 4.<br />
90. Owens, 502.<br />
91. Amnesty International, 32.<br />
92. Treaty of Fort Laramie, U.S.-Sioux-Brule-Oglala-Miniconjou-Yanktonai-Hunkpapa-Blackfeet-Cuthead-Two Kettle-San Arcs-Santee-Arapaho,<br />
art. 2, April 29, 1868, 25 U.S.C. 1776i.<br />
93. Ibid., art. 1.<br />
94. Amnesty International, 32.<br />
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Native Sovereignty, Jurisdiction, and the Epidemic of Sexual Violence Against Native Women<br />
inflicted upon Native women with impunity, as federal<br />
officials have exclusive jurisdiction when the alleged<br />
perpetrator is non-Indian. Moreover, tribal courts and the<br />
Standing Rock Sioux Tribe?s court of appeals, which<br />
adjudicate criminal and civil cases, are underfunded,<br />
causing delays; at the same time, federal prosecutors often<br />
decline cases from Indian Country. The net result is that<br />
perpetrators are not prosecuted at the federal or tribal court<br />
level. 95<br />
The United States was formed not solely by the<br />
Constitution, but by the treaties it entered into with<br />
Indigenous nations. 96 These treaties comprise part of the<br />
American government?s original framework and recognize<br />
tribes? property rights and sovereignty. Failing to honor<br />
treaties with Native nations constitutes a breach of contract<br />
and violates constitutional principles like property rights<br />
and the rule of law.<br />
Jurisdiction and Indigenous Sovereignty<br />
Issues with jurisdiction in Indian Country are tied to the<br />
question of Indigenous sovereignty: how should Native<br />
sovereignty be expressed, and to what extent might the<br />
occupying colonial power need to step in and support the<br />
Native nations they subjugated and displaced? According<br />
to Amnesty International, jurisdictional authority is<br />
determined by three factors: whether the victim is a<br />
member of a federally recognized Indian tribe, whether the<br />
suspect is a member of a federally recognized Indian tribe,<br />
and whether the alleged offense took place on tribal land.<br />
Ultimately, this determination dictates how the crime is<br />
investigated, which body of law applies to the case? tribal,<br />
federal, or state? and by whom it is handled. 97<br />
The federal government recognizes the prevalence of<br />
non-Indian crime in Indian Country as a public safety<br />
concern. Current statutes and common law suggest that the<br />
federal government and courts consider state or federal law<br />
and law enforcement to be the most appropriate<br />
mechanism for deterring crime, policing reservations, and<br />
prosecuting criminals that commit crimes in Indian<br />
Country. 98<br />
Jurisdiction is tied to land possession and property law,<br />
which maintain oppressive hierarchical structures that<br />
support the state?s right to exercise power and control.<br />
Jurisdiction in the United States is guided by two<br />
principles, which the Court enunciated in Pennoyer v. Neff<br />
(1878): ?every State possesses exclusive jurisdiction and<br />
sovereignty over persons and property within its territory,?<br />
and ?no State can exercise direct jurisdiction and authority<br />
over persons or property without its territory.? 99 The<br />
mention of ?territory? references power related to the<br />
general occupation of property and land ownership. This is<br />
particularly significant to the present discussion as<br />
Indigenous conceptions of sovereignty tend not to include<br />
land ownership. To many Indigenous communities,<br />
?sovereignty is inherent?: land is more valuable than<br />
money and cannot be sold because it was given to them<br />
?by the Great Spirit.? 100 Hence, they ?cannot sell it<br />
because it does not belong to them.? 101 But, if Native<br />
nations do not emphasize land ownership, jurisdiction, as<br />
defined by the United States, is up for grabs, which<br />
inherently threatens sovereignty.<br />
95. Ibid., 33.<br />
96. Kalt and Singer, 9.<br />
97. Amnesty International, 27.<br />
98. Owens, 509.<br />
99. Pennoyer v. Neff, 95 U.S. 722 (1878).<br />
100. Flyer, ?Support Yellow Thunder Camp: Evening in Solidarity with Native American Struggles,? September 27, 1981, The Moncada Library and<br />
the May 19th Communist Organization, Moncada Library, The Freedom Archives, San Francisco, California.<br />
101. Ibid.<br />
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Potential Solutions to Jurisdictional Complexities<br />
The epidemic of sexual violence against Native women<br />
indicates the need for the upheaval of the Eurocentric,<br />
traditionally colonial view of sovereignty; the complex<br />
jurisdictional dynamic between tribal governments and the<br />
United States necessitates the formation of an anti-colonial<br />
approach. The issue of property ownership is central to this<br />
discussion, as the U.S. government has not only violated<br />
treaties that recognize Indigenous property rights but has<br />
also enacted legislation reducing tribal jurisdiction in<br />
Indian Country. Thus, a possible solution involves<br />
expanding sovereignty by passing legislation that gives<br />
American Indian nations the authority to prosecute crimes<br />
on their land and reduces Congress?s ability to diminish<br />
American Indian sovereignty. More specifically, the U.S.<br />
federal government should recognize concurrent<br />
jurisdiction regardless of the identity of the accused, and<br />
the Indian Civil Rights Act should be amended ?to<br />
recognize the authority of tribal courts to impose penalties<br />
proportionate to the offenses they try.? 102<br />
Native Sovereignty, Jurisdiction, and the Epidemic of Sexual Violence Against Native Women<br />
Research suggests that Indigenous survivors of sexual<br />
violence face prejudice and discrimination at ?all stages<br />
and levels of federal and state investigation and<br />
prosecution.? 103 Therefore, the U.S. government must<br />
recognize tribal authorities?jurisdiction over all offenders<br />
who commit crimes on tribal land, regardless of their<br />
identity, because tribal governments can meet their own<br />
citizens?needs better than outside authorities. 104 The U.S.<br />
government must also acknowledge the right of tribal<br />
governments to impose sentences commensurate with the<br />
crime and consistent with international human rights<br />
standards. 105 Congress should codify concurrent<br />
jurisdiction, legislatively override the Oliphant v.<br />
Suquamish ruling, and amend the Indian Civil Rights Act<br />
to ensure Indigenous sovereignty.<br />
The Tribal <strong>Law</strong> and Order Act of 2010 must also be<br />
amended, as it does nothing to fix or clarify the<br />
jurisdictional maze and fails to bestow any authority on<br />
tribal law enforcement. The act adds another layer of<br />
jurisdictional confusion ?by allowing public law states to<br />
opt into a concurrent state, federal, and (possibly) tribal<br />
jurisdiction? and by creating more bureaucracy through the<br />
establishment of new agents and officers. 106 This<br />
legislation also does not address the federal prosecutors?<br />
rate of refusing cases involving the rapes of American<br />
Indian and Alaska Native women. The act does, however,<br />
pledge to provide more resources to prosecute Indian<br />
Country crimes. 107 However, this is not the first time such<br />
a promise was made and not kept.<br />
108 109<br />
All things considered, the Tribal <strong>Law</strong> and Order Act of<br />
2010 takes several missteps toward solving the issues<br />
facing American Indians and Alaska Native people; it is<br />
insulting to tribal sovereignty as it does not address the<br />
jurisdictional distinctions based on the race or ethnicity of<br />
the accused, which have deprived victims of access to<br />
justice time and time again. The legislation is inherently<br />
102. Amnesty International, 63.<br />
103. Ibid., 70.<br />
104. Ibid., 62.<br />
105. Ibid., 12.<br />
106. Owens, 519.<br />
107. Ibid., 518.<br />
108. Another instance of the federal government pledging to provide more resources to tribes was in 2002, when the federal government pledged to<br />
provide more agents and resources to police Indian Country but ultimately diverted these resources to Homeland Security after 9/11. See: Owens,<br />
519.<br />
109. Owens, 518.<br />
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Native Sovereignty, Jurisdiction, and the Epidemic of Sexual Violence Against Native Women<br />
flawed as it attempts to solve issues relating to the administering justice in and around Indian Country to<br />
jurisdictional maze by vesting more authority in federal combat the discrimination and cultural barriers previously<br />
and state governments and neglects promises of discussed in this paper. 114<br />
sovereignty codified in treaties such as the Treaty of Fort<br />
The federal government should also provide the funding<br />
Laramie. This is the wrong approach; according to Janet<br />
and resources necessary for tribal governments to develop<br />
Reno, former U.S. Attorney General, tribal justice systems<br />
and maintain tribal courts and legal systems that comply<br />
are the best institutions for maintaining order in tribal<br />
with international human rights standards. As it stands,<br />
communities because they are local institutions close to the<br />
most tribal governments do not have the resources to<br />
people they serve. 110 Therefore, the act should be amended<br />
conduct legislative and legal affairs due to the effects of<br />
to allow tribal governments to ?adopt concurrent<br />
centuries of colonialism and oppressive policies thereafter.<br />
jurisdiction over American Indian and Alaska Native<br />
Therefore, it is critical that the U.S. government helps<br />
perpetrators, remove custodial sentencing caps to allow<br />
revitalize tribal governments? via funding and the<br />
tribes to punish their members, and provide federal<br />
implementation of training programs in collaboration with<br />
funding for tribes to further develop and update their<br />
Indigenous organizations, to ensure the competency of<br />
judicial systems.? 111 These steps would recognize tribal<br />
court and prosecution officials. The steps above must be<br />
sovereignty and empower tribes to protect American<br />
taken for the United States to hold true to its legal<br />
Indian and Alaska Native women. The U.S. government<br />
obligation to protect the rights and wellbeing of American<br />
should fulfill its codified duties to Native nations by<br />
Indian and Alaskan Native peoples (a responsibility<br />
supporting their efforts to enhance their justice systems,<br />
recognized again in the Indian Tribal Justice Act of<br />
making life safer for those living in American Indian and<br />
1993). 115<br />
Alaska Native communities.<br />
The long, harrowing history of the relationships between<br />
The federal government should cooperate with Indigenous<br />
the U.S. government, Native Americans, and tribal<br />
legal experts to ensure that national judicial systems take<br />
sovereignty is characterized by extensive policy change<br />
the human rights of Indigenous people into account. 112<br />
over short periods. For instance, the U.S. government?s<br />
This includes, but is not limited to, the establishment of<br />
policy of tribal self-government was essentially abandoned<br />
clear policies and practices ?regarding the timely and<br />
before the 1950s. As discussed, the Supreme Court<br />
regular provision of information to victims of sexual<br />
divested tribes of their territorial sovereignty and<br />
violence.? 113 The U.S. government must also promote<br />
jurisdiction in the late 1900s, which frustrated federal<br />
proper representation of Indigenous individuals,<br />
policies favoring self-sufficiency, economic development,<br />
particularly women, in agencies responsible for<br />
and strong tribal government. 116 Only in 1993 did Justice<br />
110. Ibid., 519-521.<br />
111. Ibid., 522.<br />
112. Amnesty International, 90.<br />
113. Ibid., 88.<br />
114. Ibid., 91.<br />
115. Ibid., 90.<br />
116. John Fredericks, ?America's First Nations: The Origins, History and Future of American Indian Sovereignty,? Journal of <strong>Law</strong> and Policy 77, no.<br />
2 (1999): 403.<br />
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Native Sovereignty, Jurisdiction, and the Epidemic of Sexual Violence Against Native Women<br />
Ginsburg make a statement supporting the limitation, if not<br />
abolition, of tribal jurisdiction over the conduct of<br />
non-members in the Supreme Court case Strate v. A-1<br />
Contractors. 117 118 There, the Court effectively reversed<br />
Chief Justice Marshall?s holdings in the Cherokee<br />
cases? that unless Congress explicitly limits the exercise<br />
of that sovereignty by treaty or statute, tribes maintain<br />
their sovereign authority over lands that are part of their<br />
reservation. 119 Tribal governments have not had the time or<br />
resources to achieve self-sufficiency, as a result of<br />
colonialism and the U.S. federal government?s inconsistent<br />
and contradictory policies related to tribal sovereignty and<br />
the tribes [would obtain] reservations of land as their<br />
remaining homeland, within which they reserved their<br />
historic sovereignty.? 121 Thus, any diminution of their<br />
territorial or jurisdictional sovereignty, whether by<br />
congressional act or judicial decision, is as good as another<br />
broken promise on the part of the United States and a<br />
violation of Native peoples? human rights, treaty rights,<br />
and historical right to exist as unique ?cultural, political<br />
and sovereign nations? within the United States. 122<br />
Therefore, the U.S. federal government should collaborate<br />
with tribal leaders to ensure culturally appropriate support<br />
services, criminal justice, community-based responses to<br />
jurisdiction. Therefore, to improve relations with violence against Native women, and tribal self-governance<br />
Indigenous nations, support Indigenous peoples? right to structures to secure de facto sovereignty and<br />
self-determination, and uphold existing treaties, Native<br />
tribes must be given adequate time and resources to<br />
improve and create institutions of self-governance to<br />
support their sovereignty.<br />
self-determination. The federal government must stop<br />
eroding tribal sovereignty and remove the barriers to<br />
justice created by jurisdictional complexities.<br />
Conclusion<br />
The U.S. government must not limit Native jurisdiction as<br />
The right of Native nations to self-determination and<br />
tribes cannot be sovereign or self-sufficient in that manner.<br />
sovereignty was diminished by the paternalistic nature of<br />
Though Native activists and authorities becoming active in<br />
their relations with the United States. The incompatibility<br />
asserting their political and legal rights has caused<br />
between Western and Indigenous conceptions of<br />
controversy, the U.S. government must not discontinue the<br />
sovereignty and self-government has led to the suppression<br />
new policy of promoting tribal sovereignty and<br />
of Native nations and the reduction of tribal criminal<br />
self-government. The U.S. government must remember<br />
jurisdiction in Indian Country. The depletion of Native<br />
that tribal sovereignty is a historical legal concept written<br />
sovereignty and tribal jurisdiction has produced a complex<br />
into the nation?s earliest treaties, many of which were used<br />
jurisdictional maze that has contributed profoundly to the<br />
to procure the vast expanse of U.S. territories over which<br />
epidemic of sexual violence Native women experience<br />
Native tribes had a prior claim. 120 The treaties stipulate<br />
today. This epidemic demonstrates how the federal<br />
that ?in return for giving up their title to the lands ceded,<br />
government is failing to fulfill its codified obligations to<br />
117. The Court decided that a tribal court does not have jurisdiction over a civil action brought against a non-Native negligent driver and their<br />
employer when the accident occurs on state highways that cross Indian trust land within reservations. See: Strate v. A-1 Contractors, 520 U.S. Pp.<br />
445-460 (1997).<br />
118. Fredericks, 395.<br />
119. Ibid., 403.<br />
120. Fredericks, 406.<br />
121. Ibid., 368.<br />
122. Ibid., 407.<br />
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protect Native people.<br />
Native Sovereignty, Jurisdiction, and the Epidemic of Sexual Violence Against Native Women<br />
In many ways, the complex system of jurisdiction that<br />
perpetuates the oppression of Native people is a<br />
continuation of the United States? colonial relationship<br />
with Indigenous nations. The consequences of colonialism<br />
and the U.S. government?s erratic policy regarding tribal<br />
jurisdiction have eroded tribal governmental authority and<br />
hindered the development of effective mechanisms of<br />
tribal self-governance and law enforcement. Therefore, the<br />
federal government must work alongside tribal authorities<br />
to clarify the constitutional status of tribal nations, create<br />
laws that prevent the diminution of Native territorial<br />
sovereignty, amend legislation to untangle the complex<br />
and unjust web of jurisdictions, and provide the funds and<br />
resources necessary to foster strong tribal governments and<br />
legal systems. These steps are imperative to end the United<br />
States? colonial relationship with Indigenous nations and<br />
the epidemic of sexual violence against Native women.<br />
Tribal sovereignty is recognized and protected by the U.S.<br />
Constitution, legal precedent, treaties, and applicable<br />
human rights principles. Therefore, Indigenous people<br />
have the right to tell their stories, practice their traditions,<br />
and live with self-determination and sovereignty without<br />
the U.S. government?s illegal interference.<br />
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PROSCRIBABLE THOUGHTS: U.S.<br />
HATE CRIME STATUTES AND THE<br />
FIRST AMENDMENT OBJECTION<br />
Chris Morillo<br />
ABSTRACT<br />
This paper attempts to wrestle with a central legal and philosophical objection to U.S. hate crime statutes? the objection<br />
concerning the First Amendment. After providing an overview of hate crime statutes and the relevance of the First<br />
Amendment, this paper identifies and analyzes three approaches that respond to this objection. In essence, opponents of<br />
hate crime statutes are probably correct that these statutes regulate expression, so it would be wise for proponents of these<br />
statutes to justify such expression as constitutionally proscribable. This paper employs a conversation between several<br />
notable Supreme Court decisions, especially R.A.V. v. St. Paul, Wisconsin v. Mitchell, Virginia v. Black, and Chaplinsky v.<br />
New Hampshire, and also incorporates the work of legal theorists and policymakers.<br />
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Proscribable Thoughts: U.S. Hate Crime Statutes and the First Amendment Objection<br />
Since Congress passed the Hate Crimes Statistics Act in<br />
1990, the Department of Justice has been required to track<br />
and publish annually the number of crimes motivated by<br />
bias against a victim?s race, ethnicity, ancestry, religion,<br />
sexual orientation, disability, gender, and/or gender<br />
identity. 1 In 2019, the federal government reported the<br />
most hate crimes in over a decade, as well as the most<br />
statutes. Rather, the primary concern of this paper is the<br />
handling of a central philosophical and legal objection<br />
against such statutes, the objection from the First<br />
Amendment. The bulk of this paper will therefore be the<br />
identification and analysis of three possible approaches for<br />
handling this objection.<br />
Legal Background<br />
hate-motivated killings since 1990. 2 Such statistics reflect<br />
what the New York Times has recognized as an ?upward<br />
trend in bias-motivated crimes during the Trump era.? 3<br />
This category of crimes is thus more relevant today than<br />
ever, but the category itself? the designation of certain<br />
crimes as motivated by hate? remains controversial<br />
among judges, academics, and the general public alike.<br />
To establish some background on the matter, ?hate crimes?<br />
broadly refer to crimes motivated by a perpetrator?s<br />
prejudice against a victim on the basis of the victim?s<br />
membership in a specific group or perceived membership<br />
in such a group. Some argue that ?hate crime? is an<br />
improper title, and a moralizing one, and many writers<br />
instead prefer to refer to ?bias crimes.? 5 This paper will<br />
The primary objection to such a designation is that it<br />
still use the designation ?hate crime,? however, as it is both<br />
constitutes an impermissible violation of an individual?s<br />
the more common phrase and, I believe, a more accurate<br />
First Amendment rights. Civil rights lawyer Frederick M.<br />
one. Indeed, Jack Levin and Jack McDevitt?s expansive<br />
<strong>Law</strong>rence has referred to this tension as the hate crimes/<br />
typology of hate crime motivations seems to reflect not<br />
hate speech paradox, asking, ?How is it possible both to<br />
just the biased selection of a victim, but a commonality<br />
punish the bias criminal and to protect the right of the<br />
that would be more aptly described as ?hate.? Levin and<br />
bigot to express his beliefs?? 4 While many, such as<br />
McDevitt identify four such motivations: resentment<br />
<strong>Law</strong>rence himself, have concluded that this paradox is a<br />
toward a specific group, thrill-seeking, a perceived<br />
false one, this paper will instead assume the paradox?s<br />
personal threat, or a mission to eliminate an entire group. 6<br />
truth in order to reimagine a defense of hate crime statutes<br />
from such a starting point. Even if we believe hate crime<br />
statutes involve content-based limitations on speech, such<br />
Also of note, ?hate crime? is a rather recent designation,<br />
but the law on the matter is over half a century old. Title I<br />
limitations should be considered to be of the<br />
of the Civil Rights Act of 1968 is the earliest version of a<br />
constitutionally proscribable variety.<br />
federal hate crime statute? the law prohibits interference<br />
in a person?s enjoyment of federally protected rights, such<br />
This paper will not consider questions of efficacy, nor will<br />
as voting or attending school, on the basis of their race,<br />
this paper seek to delineate which biases? that is, biases<br />
color, religion, or national origin. 7 The federal government<br />
against which groups? should be subject to hate crime<br />
1. Barbara Perry, In the Name of Hate: Understanding Hate Crimes (New York, NY: Routledge, 2001), 11.<br />
2. Tim Arango, ?Hate Crimes in U.S. Rose to Highest Level in More Than a Decade in 2019,? New York Times, <strong>No</strong>vember, 16, 2020.<br />
3. Ibid.<br />
4. Frederick M. <strong>Law</strong>rence, Punishing Hate: Bias Crimes Under American <strong>Law</strong> (Cambridge, MA: Harvard University Press, 2002), 80.<br />
5. Beverly A. McPhail, ?Hating Hate: Policy Implications of Hate Crime Legislation,? Social Service <strong>Review</strong> 74, no. 4 (December 2000): 637-638,<br />
https://doi.org/10.1086/516428.<br />
6. Jack Levin and Jack McDevitt, Hate Crimes Revisited: America's War On Those Who Are Different (Cambridge, MA: Westview Press, 2002), 49,<br />
67, 77, 91.<br />
7. Thomas Streissguth, Hate Crimes (New York, NY: Facts On File, 2009), 44.<br />
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Proscribable Thoughts: U.S. Hate Crime Statutes and the First Amendment Objection<br />
has used Title I to prosecute bias-motivated ?interference,? of St. Paul considered cross-burning punishable via a<br />
including cases of intimidation as well as assault and penalty enhancement on the standard vandalism statute<br />
murder. Since then, hate crime statutes have expanded rather than a discrete offense? In other words, as this paper<br />
across all levels of government. As much as it is possible is concerned, penalty enhancement statutes are not<br />
to categorize a vast collection of laws, there are two broad immune to the freedom of speech objection.<br />
categories of hate crime statutes.<br />
The Free Speech Objection<br />
First, and most commonly, there are penalty enhancement<br />
On June 21, 1990, Russ Jones and his family awoke to the<br />
statutes for existing criminal conduct in cases in which the<br />
burning of a cross in their front yard. 12 The Jones family<br />
defendant is motivated ?because? or ?by reason of? the<br />
had recently moved into a home in the mostly white East<br />
victim?s identity. 8 If such motivation can be established<br />
Side of St. Paul, Minnesota, and the fiery cross delivered a<br />
during trial, these statutes allow for harsher prison<br />
clear message that, as a black family, they did not belong.<br />
sentences or steeper fines upon conviction. Penalty<br />
Police eventually arrested Robert A. Viktora, a juvenile at<br />
enhancement statutes for hate-motivated crimes have<br />
the time, for the crime. He was prosecuted not under arson<br />
generally passed constitutional muster: in 1993, the<br />
or vandalism statutes, but under a specific St. Paul<br />
Supreme Court unanimously upheld such statutes in<br />
ordinance against any ?symbol, object, appellation,<br />
Wisconsin v. Mitchell. 9<br />
characterization or graffiti, including but not limited to, a<br />
Second, there are ?substantive? hate crime statutes, those burning cross or Nazi swastika, which one knows or has<br />
that establish a discrete, separate offense motivated by reasonable grounds to know arouses anger, alarm or<br />
prejudice, most often labeled as intimidation. 10 These laws, resentment in others on the basis of race, color, creed,<br />
unlike penalty enhancement statutes, have proven more religion or gender.? 13 Viktora appealed his conviction,<br />
constitutionally contentious in that they seek to punish eventually petitioning the U.S. Supreme Court, arguing<br />
something beyond already criminalized conduct. In many that the ordinance violated his First Amendment rights.<br />
cases, they overtly prohibit some type of expression, such<br />
The Supreme Court heard the case in 1992 and, in a<br />
as the burning of a cross. In R.A.V. v. St. Paul (1992), the<br />
unanimous decision, struck down the ordinance. Five<br />
Supreme Court ruled that such an ordinance punished<br />
justices? the conservative majority? determined the<br />
certain expression on the basis of content and was thus<br />
majority opinion on the basis that the ordinance violated<br />
unconstitutional. 11<br />
the First Amendment. The other four justices concurred in<br />
However, this paper will not dwell on the distinctions striking down the ordinance but only on the basis of its<br />
between these subcategories of hate crime statutes, as I overbreadth. Writing for the majority, Justice Antonin<br />
believe the question of impermissibly regulating speech is Scalia declared the ordinance facially unconstitutional in<br />
essentially constant, despite what the divergent Supreme that it selectively punished speech on the basis of content<br />
Court rulings would suggest. What if, for instance, the city and viewpoint. 14<br />
8. <strong>Law</strong>rence, 35.<br />
9. Wisconsin v. Mitchell, 508 U.S. 476 (1993).<br />
10. James B. Jacobs and Kimberly A. Potter, ?Hate Crimes: A Critical Perspective,? Crime and Justice 22 (1997): 5/<br />
11. R.A.V. v. St. Paul, 505 U.S. 377 (1992).<br />
12. Streissguth, 27.<br />
13. R.A.V., 505 U.S. 380.<br />
14. Ibid., 505 U.S. 391.<br />
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At first glance, one might wonder how the case involved<br />
speech at all. However, the Supreme Court has regularly<br />
affirmed that the First Amendment applies to more than<br />
pure speech and can protect non-speech acts on the basis of<br />
discrimination. 18 Accordingly, despite more recent rulings,<br />
R.A.V. remains decisive precedent on hate crime statutes,<br />
and the objection to hate crime statutes from the First<br />
Amendment is still relevant.<br />
their expressive nature. In Texas v. Johnson (1989), in<br />
There are three approaches to handling this objection that<br />
which the Court overturned the conviction of an individual<br />
will constitute the rest of this paper. First, there is the<br />
for burning a U.S. flag in protest, the Court established that<br />
approach that suggests hate crime statutes regulate conduct<br />
the First Amendment is implicated to the fullest extent<br />
and not speech. However, this approach is flawed, and the<br />
whenever the government seeks to ?proscribe particular<br />
Court is correct to implicate the First Amendment when<br />
conduct because it has expressive elements.? 14 On such<br />
considering the constitutionality of cross-burning<br />
grounds, the majority in R.A.V. v. St. Paul implicated the<br />
ordinances and hate crime statutes in general. Second, for a<br />
First Amendment and found the ordinance violative:<br />
more satisfying response, we will turn to the approach that<br />
?burning a cross in someone?s front yard is reprehensible.<br />
admits regulation of speech but suggests that such<br />
But St. Paul has sufficient means at its disposal to prevent<br />
regulation falls within existing limitations on the First<br />
such behavior without adding the First Amendment to the<br />
Amendment, namely the ?fighting words? and ?true threat?<br />
fire.? 16 As the majority in R.A.V. astutely pointed out, if it<br />
doctrines. Finally, this paper will conclude with a more<br />
was not for a concern with the conduct?s expressive nature,<br />
radical approach? if hate crime statutes fall outside of<br />
the city would have found sufficient recourse amongst the<br />
these established limitations, then this calls for a novel<br />
statutes against vandalism, arson, and trespassing.<br />
limitation on the First Amendment, a limitation that must<br />
The Supreme Court revisited the topic in 2003, in<br />
reference to a cross-burning statute in Virginia v. Black.<br />
?The burning of a cross is symbolic expression,? the Court<br />
acknowledged, and ?the reason why the Klan burns a cross<br />
at its rallies, or individuals place a burning cross on<br />
someone else?s lawn, is that the burning cross represents<br />
the message that the speaker wishes to communicate.? 17<br />
With this framing in mind, while the Court in Black upheld<br />
some components of the cross-burning statute, the Court<br />
rejected the notion that cross-burning amounted to prima<br />
facie evidence of intent to intimidate. Further, the Court<br />
refused to overturn R.A.V., recalling that the St. Paul<br />
ordinance in R.A.V. only prohibited cross-burning ?on the<br />
basis of [the victim?s] race, color, creed, religion or<br />
indeed pass strict scrutiny. As these latter approaches will<br />
suggest, though hate crime statutes may regulate some<br />
form of expression, such statutes meet the burden<br />
mandated by the invocation of the First Amendment.<br />
First Approach: Conduct, not Speech<br />
One approach is to defend hate crime statutes as a<br />
limitation on conduct rather than speech. Such a distinction<br />
is most clear in Wisconsin v. Mitchell, in which the<br />
Supreme Court unanimously upheld a Wisconsin statute<br />
that increased penalties for any criminal who ?intentionally<br />
selects the person against whom the crime is committed<br />
. . . because of the race, religion, color, disability, sexual<br />
orientation, national origin or ancestry of that person.? 19<br />
gender,? and thus amounted to content-based<br />
The Court found that the statute in question in Mitchell,<br />
14. Ibid., 505 U.S. 391.<br />
15. Texas v. Johnson, 491 U.S. 406 (1989).<br />
16. R.A.V., 505 U.S. 396.<br />
17. Virginia v. Black, 538 U.S. 360 (2003).<br />
18. Ibid., 538 U.S. 361.<br />
19. Wisconsin v. Mitchell, 508 U.S. 480.<br />
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unlike the ordinance in R.A.V., regulated criminal conduct question is related to the expressive nature of the conduct<br />
and not protected speech or expression. Criminal courts in question. As the brief submitted on behalf of Mitchell,<br />
regularly consider a defendant?s motivation to determine the defendant facing penalty enhancement, correctly<br />
sentencing, and Mitchell affirmed such consideration as a pointed out, the analogous law in O?Brien would instead<br />
constitutional mechanism by which the government may be one that increased punishment for those that burned<br />
punish conduct.<br />
draft cards for specific, disfavored reasons, such as<br />
anti-war beliefs.<br />
The groundwork for this approach stems from United<br />
21 In Mitchell, the Court justified penalty<br />
enhancements by claiming to appeal to the ramifications of<br />
States v. O?Brien (1968), in which the Court wrestled with<br />
criminal behavior, a state interest supposedly unrelated to<br />
David O?Brien?s conviction for burning his draft card. The<br />
the suppression of specific expression. In actuality, the<br />
Court ultimately affirmed his conviction, ruling that ?when<br />
Court spoke to the ramifications of the expressive qualities<br />
?speech? and ?nonspeech? elements are combined in the<br />
of hate-motivated criminal behavior, and thus directly<br />
same course of conduct, a sufficiently important<br />
invoked a state interest related to the suppression of<br />
governmental interest in regulating the nonspeech element<br />
particularly harmful expression. It is telling, for instance,<br />
may justify incidental limitations on First Amendment<br />
freedoms.? 20 that speech is used as evidence to establish motivations of<br />
However, there are a few problems with this<br />
hate in the courtroom. The Supreme Court of Wisconsin<br />
approach as applied to hate crime statutes.<br />
recognized as much in State v. Mitchell (1992), writing,<br />
First, we should note that this approach is entirely unable<br />
?The use of the defendant?s speech, both current and past,<br />
to make sense of discrete hate crime statutes, such as the<br />
as circumstantial evidence to prove the intentional<br />
ordinance in question in R.A.V., which is why the Court<br />
selection makes it apparent that the statute sweeps<br />
was able to use this approach to affirm penalty<br />
protected speech within its ambit and will chill free<br />
enhancements in Mitchell but was unable to uphold the St.<br />
speech.? 22 Therefore, the O?Brien test seems insufficient to<br />
Paul ordinance just a year earlier. Still, there are reasons<br />
license hate crime statutes, even those that are mere<br />
why this approach fails to make sense of even penalty<br />
penalty enhancements.<br />
enhancement statutes.<br />
Thus, this first approach is not necessarily helpful in<br />
The distinction between the regulation of conduct and<br />
proving the constitutionality of either subcategory of hate<br />
expression in regard to hate crime statutes is blurry if not<br />
crime statutes. While this first approach relies on the hope<br />
entirely ontologically suspect? the very act of a hate crime<br />
that the distinction between speech and conduct is<br />
seems to inherently express a certain belief, and it is that<br />
concrete, it often is not. Many scholars have noted that<br />
expression that makes hate crimes especially concerning.<br />
there seems to be ?only a semantic distinction between<br />
Because of this fact, the O?Brien precedent does not seem<br />
what is constitutionally impermissible under R.A.V. and<br />
to validate hate crime statutes at all. O?Brien affirmed a<br />
what is constitutionally permissible under Mitchell.? 23<br />
law that punished the destruction of draft cards on the<br />
Rather than sidestep the freedom of speech objection it<br />
basis of a state interest entirely unrelated to the<br />
would be wise for proponents of hate crime statutes to<br />
suppression of speech. However, hate crime statutes are<br />
charitably engage with this objection in order to truly<br />
not analogous to such a law, as the state interest in<br />
defeat it.<br />
20. United States v. O?Brien, 391 U.S. 376 (1968).<br />
21. Brief of Petitioner, Wisconsin v. Mitchell, 1993 U.S. S. Ct. Briefs LEXIS 168.<br />
22. State v. Mitchell, 169 Wis. 2d 173 (1992).<br />
23. Jacobs and Potter, 12.<br />
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acknowledged by the Court.<br />
In 1940, Walter Chaplinsky was convicted under a New<br />
Hampshire statute for calling a city marshal a ?damned<br />
racketeer? and a ?damned Fascist.? 24 In Chaplinsky v. New<br />
Hampshire (1942), the Supreme Court affirmed his<br />
conviction, acknowledging that ?fighting words?? ?those<br />
which by their very utterance inflict injury or tend to incite<br />
an immediate breach of the peace?? are an exception to<br />
the protections of the First Amendment. 25 In other cases,<br />
the Court has acknowledged different exceptions, as in<br />
Watts v. United States (1969), where the Court affirmed the<br />
ability of states to prohibit ?true threats.? 26 Though Watts<br />
clarified that ?political hyperbole? does not amount to such<br />
a threat, it has been interpreted to apply to ?statements<br />
where the speaker means to communicate a serious<br />
expression of an intent to commit an act of unlawful<br />
violence to a particular individual or group of<br />
individuals.? 27 Under accepted doctrine, even if the<br />
speaker does not intend to carry out the threat, a serious<br />
threat alone is intimidating and disruptive enough to justify<br />
the prohibition of such speech.<br />
The invocation of the First Amendment thus does not<br />
provide an individual with entirely unlimited expression.<br />
In Chaplinsky, the Court affirmed as much: ?It is well<br />
understood that the right of free speech is not absolute at<br />
all times and under all circumstances. There are certain<br />
well-defined and narrowly limited classes of speech, the<br />
prevention and punishment of which have never been<br />
thought to raise any Constitutional problem.? 28 A second<br />
approach to hate crime statutes, then, would work within<br />
these limitations on the First Amendment that have been<br />
The expression prohibited by hate crime statutes might<br />
well be considered ?fighting words? or ?true threats,? and<br />
thus should be considered proscribable. There is even<br />
some precedent for this approach. In Virginia v. Black, the<br />
Supreme Court specifically applied the ?true threat?<br />
doctrine to cross-burning, arguing, ?The First Amendment<br />
permits Virginia to outlaw cross-burnings done with the<br />
intent to intimidate because burning a cross is a<br />
particularly virulent form of intimidation.? 29 Even in his<br />
dissent, Justice Clarence Thomas acknowledged, ?In our<br />
culture, cross burning has almost invariably meant<br />
lawlessness and understandably instills in its victims<br />
well-grounded fear of physical violence.? 30 As established<br />
in Watts, the government has a compelling interest in<br />
minimizing threats that engender fear in people and in<br />
communities. Even if such threats are technically<br />
expressive, their proscription passes the scrutiny mandated<br />
by the First Amendment. It is also not a stretch of the<br />
imagination to consider such expression ?fighting words?<br />
and thus proscribable for that reason as well. In Justice<br />
John Paul Stevens?s concurring opinion in R.A.V., he<br />
contends that the St. Paul ordinance ?bars only low-value<br />
speech, namely, fighting words,? deeming the ordinance a<br />
legitimate content-based regulation of speech. 31 However,<br />
even this approach has its own drawbacks that ought to be<br />
addressed. First, there is the objection provided by Justice<br />
Scalia in his opinion in R.A.V., in which he explained that<br />
even categories of speech such as ?fighting words? or ?true<br />
threats? are categories not ?entirely invisible to the<br />
Constitution? and thus cannot be proscribed on the basis of<br />
24. Chaplinsky v. New Hampshire, 315 U.S. 569 (1942).<br />
25. Ibid., 315 U.S. 572.<br />
26. Watts v. United States, 394 U.S. 705 (1969).<br />
27. Black, 538 U.S. 359.<br />
28. Chaplinsky, 315 U.S. 571.<br />
29. Black, 538 U.S. 363.<br />
30. Ibid., 538 U.S. 391 (Thomas, J., dissenting).<br />
31. R.A.V., 505 U.S. 432 (Scalia, J., dissenting).<br />
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content. 32 More precisely, Scalia argued that the the Supreme Court has not upheld a government action on<br />
government cannot prohibit some ?fighting words? but not the basis of the ?fighting words? doctrine since<br />
others on the basis of the content of such words. To Chaplinsky. 37 Even the ?true threats? doctrine is only<br />
illustrate this objection, Scalia provides a helpful example: helpful precedent for certain hate crime statutes, such as<br />
?the government may proscribe libel; but it may not make the cross-burning statute in question in Black. Therefore,<br />
the further content discrimination of proscribing only libel another approach is needed to fully defend hate crime<br />
critical of the government.? 33<br />
statutes from a First Amendment objection.<br />
However, Scalia?s argument is tenuous. Content-based<br />
regulation of speech is not ?presumptively invalid? as he<br />
would suggest. 34 For one, as Justice Stevens points out in<br />
his concurrence, the distinction between proscribable<br />
speech and non-proscribable speech? fighting words and<br />
non-fighting words, for instance? seems content-based<br />
itself. 35 Further, there seems to be some variability to the<br />
proscribable nature of certain types of speech on the basis<br />
of their content, and Scalia admits as much. He<br />
acknowledges in R.A.V. that threats against the president,<br />
for instance, are especially threatening and therefore are<br />
especially proscribable. 36 Scalia makes no attempt,<br />
however, to explain why this exception does not apply to<br />
the ordinance in question, even though it seems to apply<br />
rather directly? symbols and expressions of hate on the<br />
basis of identity are more egregious ?fighting words? and<br />
?true threats? than other ?fighting words? and ?true<br />
threats? we can imagine.<br />
Even though this approach should withstand Scalia?s<br />
objections, it is still not fully satisfactory on its own.<br />
Indeed, ?fighting words? and ?true threats? are rather strict<br />
categories as delineated in legal precedent. Courts have<br />
generally been reluctant to consider hate speech as falling<br />
under the ?fighting words? doctrine, for instance. In fact,<br />
Third Approach: A New Unprotected Category of<br />
Speech<br />
A final approach would be to carve out a new category of<br />
proscribable speech related specifically to the<br />
hate-motivated expression in question, thus considering<br />
such expression proscribable even if it falls outside of the<br />
aforementioned established categories. Crudely, we might<br />
refer to this new category as ?hate speech,? but more<br />
precisely I mean to refer to expression that is integral to<br />
hate crimes. Regardless, it is indeed a content-based<br />
limitation and is thus subject to strict scrutiny. 38 Therefore,<br />
the rest of this paper will be devoted to meeting the burden<br />
of strict scrutiny, specifically by articulating a compelling<br />
government interest in mitigating the unique harms of the<br />
expression that distinguishes hate crimes from other<br />
criminal conduct.<br />
First, there are unique harms to victims of hate crimes that<br />
should make associated expression especially concerning.<br />
Statistically, such crimes tend to be more vicious. One<br />
study in Boston found that, compared to parallel crimes,<br />
hate-motivated crimes were more likely to involve assault<br />
as well as serious injury to the victim; ?30 percent of hate<br />
crime victims required treatment at a hospital because of<br />
the severity of their injuries as compared with only 7<br />
32. Ibid., 505 U.S. 383 (Scalia, J., dissenting).<br />
33. Ibid., 505 U.S. 384 (Scalia, J., dissenting).<br />
34. Ibid., 505 U.S. 382 (Scalia, J., dissenting).<br />
35. Ibid., 505 U.S. 421 (Scalia, J., dissenting).<br />
36. Ibid., 505 U.S. 388 (Scalia, J., dissenting).<br />
37. U.S. Library of Congress, Congressional Research Service, The First Amendment: Categories of Speech, by Victoria L. Killion, IF11072 (2019).<br />
38. Eugene <strong>Vol</strong>okh, ?Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny,? University of Pennsylvania <strong>Law</strong> <strong>Review</strong> 144, no.<br />
6 (1997): 2417<br />
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percent of victims of assaults of all kinds.? 39 Ontario Tech crimes effectively perpetuate marginalization against entire<br />
Professor of Criminal Justice Barbara Perry has theorized communities, allowing the majority to reinforce ?their<br />
that such extreme violence? that which goes ?beyond that position of social and political superiority? by sending a<br />
necessary to subdue the victim?? is a result of the unique message to those who step outside the bounds of<br />
motivations of these crimes: ?fear, hatred, mistrust, or permissible behavior. 44 A hate crime is, in effect, both a<br />
resentment.? 40 Beyond physical violence, a victim of hate ?disciplinary mechanism? as well as a defensive one. 45<br />
crimes also faces a unique degree of emotional and Barbara Perry explicitly makes this contention in regard to<br />
psychological harm due to having been targeted for their women and sexual minorities, arguing that ?violence<br />
identity. Hate crimes are a threat against some immutable against women and homosexuals allows perpetrators to<br />
aspect of the victim?s identity, leading to a ?heightened reaffirm their own aggressive heterosexuality in opposition<br />
sense of vulnerability? among victims in the aftermath. 41 to these nonconformist threats.? 46 This argument is more<br />
Frederick M. <strong>Law</strong>rence has elaborated on this matter, comprehensive, however, and Perry continues:<br />
stating, ?It is one thing to avoid the park at night because it<br />
[A hate crime is] a mechanism of power and<br />
is not safe. It is quite another to avoid certain<br />
oppression, intended to reaffirm the precarious<br />
neighborhoods because of one?s race.? 42 These<br />
hierarchies that characterize a given social order. It<br />
psychological and emotional harms are far-reaching and<br />
attempts to re-create simultaneously the threatened<br />
apply even to hate-motivated criminal intimidation, such<br />
(real or imagined) hegemony of the perpetrator?s group<br />
as cross-burning.<br />
and the ?appropriate? subordinate identity of the<br />
Second, beyond the harms faced by the immediate victims, victim?s group. It is a means of marking both the Self<br />
hate crimes are differentiated from parallel crimes in that and the Other in such a way as to reestablish their<br />
they have unique impacts on the broader community. In ?proper? relative positions. 47<br />
the aftermath of a hate crime, much of the fear is translated<br />
The government has a compelling interest in mitigating<br />
to all those who share the relevant identity with the victim<br />
such oppression, in addition to preventing physical and<br />
due to the identity-based nature of the crime. 43 The<br />
psychological harm or the breakdown of social harmony. It<br />
burning cross in question in R.A.V. was not merely a threat<br />
should thus be able to proscribe a category of speech that<br />
against the Jones family, for instance, but against any black<br />
has been shown to lead to such impacts. has been shown to<br />
family attempting to move into St. Paul?s white<br />
lead to such impacts. 48<br />
neighborhoods. In this way, the expressive qualities of hate<br />
39. McPhail, 648.<br />
40. Perry, 29.<br />
41. <strong>Law</strong>rence, 40.<br />
42. Ibid.<br />
43. Ibid., 42.<br />
44. Perry, 5.<br />
45. Ibid., 113.<br />
46. Ibid., 5.<br />
47. Ibid., 10.<br />
48. It is worth acknowledging that the Supreme Court in Mitchell considered some of the adverse ramifications of hate crimes that I discuss in this<br />
third approach. However, the court considered these to be ramifications of conduct rather than of speech or expression. This is inaccurate and<br />
imprecise, and avoids the necessary invocation of strict scrutiny. Still, I believe the severity of these ramifications mean that hate crime statutes<br />
should pass strict scrutiny.<br />
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This approach is admittedly controversial. <strong>Law</strong> Professor<br />
Susan Gellman has responded to it quite thoroughly in her<br />
Importantly, too, victims and communities would remain<br />
without proper restitution.<br />
article, ?Brother, You Can?t Go to Jail for What You?re<br />
Gellman is only somewhat more compelling in arguing<br />
Thinking.? Gellman contends that there is no compelling<br />
that this approach is a slippery slope to essentially carving<br />
government interest to justify hate crime statutes, as the<br />
out all hate speech as unprotected by the First Amendment.<br />
?extra harm? is merely ?the impact of the offender?s<br />
She writes:<br />
beliefs and the offensiveness of their communication.? 49<br />
However, Gellman flagrantly misdescribes the relevant<br />
If the state?s interest in protecting citizens from the<br />
harm. The harm rendered is not the ?offensiveness? of the<br />
offensiveness and sense of fear created by<br />
expression but rather the tangible impact to individuals and<br />
entire communities. In affirming the ?true threats?<br />
doctrine, the Supreme Court has recognized that<br />
individuals ought to be protected ?from the fear of<br />
violence and from the disruption that fear engenders,? as<br />
well as ?from the possibility that the threatened violence<br />
will occur.? 50 Just as it is not merely the ?offensiveness? of<br />
?true threats? that warrants their proscription, it is not<br />
merely the ?offensiveness? of the beliefs motivating hate<br />
crimes that should justify hate crime statutes.<br />
Gellman also questions whether the other components of<br />
strict scrutiny can be satisfied with this approach.<br />
Specifically, she contends that hate crime statutes are not<br />
narrowly tailored because there are content-neutral<br />
alternatives that could account for the government?s<br />
interest: the standard statutes that criminalize assault,<br />
vandalism, trespassing, etc. 51 However, this argument<br />
essentially requires that we deny any meaningful<br />
difference between hate crimes and their parallel crimes. In<br />
a hate-motivated assault, the government?s interest is not<br />
merely in the assault itself but in the unique impacts that<br />
affect the community and the victim, which we have<br />
identified. In other words, if the government prosecuted a<br />
cross-burner simply under a vandalism statute, the<br />
compelling government interest would remain unfulfilled.<br />
bias-motivated crimes could justify punishment of<br />
motives, there would seem to be no reason it could not<br />
also be used to justify punishment of books, speeches,<br />
and demonstrations that create the same or worse<br />
effects. 52<br />
However, first, there is no reason to be concerned with<br />
such a slippery slope, as the relevant effects of hate crimes<br />
are tied to the expressive qualities of specific criminal<br />
conduct, such as intimidation or assault. The standard for<br />
?the same or worse effects,? as established in this<br />
approach, is rather high, and it is not clear that books,<br />
speeches, or demonstrations could have the same or worse<br />
effects as a hate-motivated assault, murder, or vandalism.<br />
It is the combination of prejudiced motivations and<br />
violence (or the threat of violence) that leads to the effects<br />
we have discussed. Second, if it is the case that these<br />
books, speeches, and demonstrations truly lead to the same<br />
or worse effects as hate crimes, then their proscription is<br />
similarly a compelling government interest. Taking<br />
Gellman?s point most charitably here, she has simply<br />
demanded that proponents of hate crime statutes do exactly<br />
what this paper has sought to do in its entirety? concede a<br />
limitation on the First Amendment and meet the required<br />
strict scrutiny standard. Rather than run from such a<br />
demand, proponents of hate crime statutes would be wise<br />
49. Susan Gellman, ??Brother, You Can't Go to Jail for What You're Thinking?: Motives, Effects, and ?Hate Crime?<strong>Law</strong>s,? Criminal Justice Ethics<br />
11, no. 2 (1992): 26.<br />
50. Black, 538 U.S. 360.<br />
51. Gellman, 27.<br />
52. Ibid., 26.<br />
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optimal starting point for resolving the First Amendment impact on victims of hate crimes and their communities,<br />
objection.<br />
who are made to feel unwelcome and vulnerable,<br />
sentenced to silence. In this roundabout way, hate crime<br />
Conclusion<br />
statutes might enable individuals to be better able to<br />
This paper has provided an overview of hate crime statutes<br />
exercise the freedoms they are guaranteed, including those<br />
and a summary of the main objection to such statutes? an<br />
enshrined in the First Amendment.<br />
objection from the First Amendment? before identifying<br />
three potential approaches that respond to this objection.<br />
The first approach, despite being quite popular, is unsound.<br />
The second approach, which relies on established<br />
limitations on the First Amendment, is more helpful, but is<br />
still imprecise when applied for our purposes. Finally,<br />
while the third approach is certainly the most radical, it is<br />
most able to charitably handle the objection in question. In<br />
summary, even if the prosecution of hate crimes includes a<br />
limitation on speech, it should be considered proscribable<br />
speech, unprotected by the Constitution, thus affirming<br />
hate crime statutes as constitutional.<br />
There is undoubtedly more discussion to be had at the<br />
intersection of the First Amendment and hate crime<br />
statutes. The freedoms of speech, thought, and expression<br />
are indeed instrumental to a functioning democratic<br />
society. As Oliver Wendell Holmes recognized, ?if there is<br />
any principle of the Constitution that more imperatively<br />
calls for attachment than any other it is the principle of free<br />
thought? not free thought for those who agree with us but<br />
freedom for the thought that we hate.? 53 It is an<br />
understatement, then, that we ought to be cautious in<br />
affirming restrictions on such freedom.<br />
Still, the Constitution accepts restrictions on most rights,<br />
demanding that we take into account the effects of the<br />
rights that we exercise. It is a rather utilitarian approach,<br />
but if we care about freedom of speech as a proxy for<br />
diversity of ideas and perspectives in our communities,<br />
perhaps we ought to favor some limitations on freedom of<br />
speech after all, in the form of hate crime statutes. If there<br />
is a chilling effect on speech with which we ought to be<br />
concerned, it is not from these statutes. If anything, it is the<br />
53. United States v. Schwimmer, 279 U.S. 655 (1929) (Holmes, J., dissenting).<br />
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