Why Race Matters in Louisiana’s Capital Punishment System

In a scathing critique of McCleskey v. Kemp (1987), the Los Angeles Times compared the plurality decision to the likes of Dred Scott (1857), Plessy (1896), and Korematsu (1894). “Pilate-like, the Rehnquist Supreme Court has washed its hands of any responsibility to reject the death penalty on racist grounds” (Bedau, 1987). Even when presented with a comprehensive study of racial discrimination in capital cases, the Court ruled 5-4 that it was irrelevant to the case at hand, and thus sentenced Warren McCleskey, an African American, to death. Justice Powell, who wrote the majority opinion, later told a biographer that he regretted his decision, saying that the death penalty should be abolished altogether (as cited in Pierce & Radelet, 2011). If State legislatures across the U.S. joined in the spirit of Powell’s words, the death penalty would no longer disproportionately send African Americans to death row. Short of abolition, legislatures enacted new statutes to reduce the effects of racial bias in the aftermath of Gregg v. Georgia (1976). Sadly, race still plays a significant role in sentencing rates, especially in rural areas of southern states faulted by a segregationist past. Louisiana, in particular, has one of the most alarming rates of blacks sentenced to death row. While this does not immediately indicate racism, it questions the legitimacy of a system largely crafted by racist white Southerners after Reconstruction. Hence, Louisiana’s enduring legacy of Jim Crow inequality has rendered post-Gregg reform inadequate in mitigating race as a factor in capital punishment cases.

The era of de jure equality ushered in by Reconstruction was only seen as a rallying cry for disillusioned white Southerners in the 1870s. After years of Republican “carpetbagger” rule of the State government, the removal of federal troops from Louisiana allowed for an angry white citizenry to exploit a political power vacuum. Sarma and Smith (2012) note this exchange of power by a marked contrast in Southern politics, most notably seen at the 1898 State Constitutional Convention. White delegates from around the state adopted a plan to disenfranchise “as many Negroes and as few whites as possible” (as cited in Sarma & Smith, 2012). The early roots of Jim Crow were thus planted by restricting access to the ballot box and subduing other forms of political participation, via legal discrimination. For example, leaders at the Convention crafted a criminal code for their new government that allowed for non-unanimous jury verdicts in non-capital cases. One contemporary account explains the rationale: “As a [black] juror…if a negro be on trial for any crime, he becomes at once his earnest champion, and a hung jury is the usual result” ( as cited in Sarma & Smith, 2012). Thus, in a situation where the 11 members of a jury are white, the remaining black juror could not block a guilty verdict, essentially making his role useless. Convicting innocent black defendants became easier since the jury was no longer one of his peers, but rather one of his trespassers. And whenever legalized racism was insufficient, whites resorted to overt intimidation in the form of lynching. Between 1889 and 1896, there were ninety-five lynchings reported in Louisiana, with blacks representing 85% of the victims (Sarma & Smith, 2012). Perhaps not surprisingly, four of the five places with the highest frequency of lynching in the U.S. were in Louisiana parishes (Robertson, 2015). Indeed, the noose became more than just a symbol of violence, fear, and suppression. With the nearly one-hundred-year reign of Jim Crow in the South, the noose became a perpetual reminder of cyclical inequality, violence, inferiority, and hopelessness for African Americans.

Today, the wounds inflicted on Southern life by racial tensions are far from healed. To be sure, Southerners largely abandoned public lynchings and “white only” signs with a gradual changing of social norms after the Civil Rights Act of 1964. Explicit racism in the South is a dying practice now reserved mostly for extremist groups like the Ku Klux Klan. However, the remnants of the past have been resurrected habitually in some parts of the state. The rural town of Jena in La Salle Parish, for instance, was mired by racial unrest in 2006, when six black male students attacked Justin Barker, a white student, in their high school courtyard. The altercation started after black students noticed three hanging nooses from an oak tree in front of the school. While school officials denied any claims of segregation, the boys, now known as the “Jena Six,” claimed that, in practice, white students were not open to allowing black students to sit under the oak tree during breaks (Coll, 2007). The events surrounding the schoolyard violence are murky at best since conflicting eyewitness accounts provided dubious evidence for a trial. Ultimately, the prosecution dropped all of the charges against the Jena Six. But one thing is undoubtedly known:  for white Southerners, “small town justice in the Deep South” often means criminalizing blacks regardless of guilt (Coll, 2007). And whenever retributive justice involves capital punishment, prosecutors are eager to pursue it. In fact, “cowboy” style prosecutors (that is, prosecutors who seek capital cases with fervor) are quite ubiquitous throughout Louisiana’s justice system. Jefferson Parish prosecutors are especially notorious for their readiness to sentence people to death, “which has put more people on Louisiana’s death row in recent years than any other parish” (Gettleman, 2003).  In 2003, three years before the Jena Six incident, two assistant district attorneys from Jefferson Parish “wore neckties depicting a hangman’s noose and grim reaper,” at the trial of a sixteen-year-old charged with first-degree murder (Gettleman, 2003). Another assistant district attorney in Jefferson Parish “displayed a toy electric chair in his office with five picture cutouts of each individual he had sent to death row. All were black” (Richey, 2007, p. 2). In any case, it would be hard to argue these displays of dark humor do not represent racist views of blacks deserving of death and whites being keepers of “law and order.”

At a minimum, it is clear that some Louisiana prosecutors are eager to seek the death penalty, especially when the defendant is African American. Unfortunately,

bloodthirsty prosecutors are not the only injustices that blacks face during trial. Blacks are consistently denied jury participation, even in areas where they are the majority. One study found that in Caddo Parish, where blacks represent half of the population, they constitute only 25% of the juries in capital cases (Sarma & Smith, 2012). A disparity that large creates an opportunity for an ambitious prosecutor to use racial appeals to lead an all-white jury towards a guilty verdict. Allen Snyder, who was on trial in Jefferson Parish for first-degree murder, faced a similar situation. All five prospective black jurors were dismissed by the assistant district attorney during preliminary hearings, resulting in an all-white jury (Richey, 2007, p. 2). More disturbingly, the prosecutor used implicit racial appeals before and during the trial when articulating comparisons between the Snyder case and the O.J. Simpson case. The defense attorney for Snyder later wrote that the prosecution “knew that by selecting an all-white jury there was a likelihood that his appeal to race would play on the resentments [lingering from the Simpson acquittal] of at least some members of the jury” (as cited in Richey, 2007, p. 2).  While Snyder was clearly guilty, the prosecution’s tactics were unethical and unconstitutional. It is not possible to be guaranteed a fair trial (Sixth Amendment right) or equal protection under the law (Fourteenth Amendment) when the very system of justice deliberately creates an uneven playing field. The implications of such a system are not only unfair, but it increases the chance of wrongful conviction. Of the 155 death sentences ordered by Louisiana courts, 127 of them—82%— were later reversed (Editorial Board, 2016, p. 18). Most of the defendants were later exonerated due to a violation of the “defendant’s constitutional rights, such as prosecutorial misconduct, improper jury instructions and incompetent lawyering” (Editorial Board, 2016, p. 18).

The disparities in sentencing rates extend beyond Jefferson and Caddo Parishes. The trend generally holds statewide, both pre-Furman and post-Gregg. Between 1772 and 1961, of the 632 executions that took place in Louisiana, 77% of them (578) resulted in the execution of black defendants (race of the victim was not recorded according to the study) (Pierce & Radelet, 2011). Looking to the race of the victim reveals more disparities. Between 1983 and 2010, 85% of defendants executed were convicted of killing white victims (Pierce & Radelet, 2011). It would seem plausible to dismiss such statistics on the premise that blacks just commit murder at a higher rate than whites. Further, some would point to evidence that blacks murder whites at a higher rate than whites murder other whites. Pierce & Radelet’s study refutes those arguments. First, the study examined death sentences in East Baton Rouge Parish, which is the third largest parish in the state by population (behind Orleans and Jefferson Parishes). After cross-referencing similar cases involving white and black victims that have similar aggravating factors and controlling all other variables, “those who kill whites are still more than twice as likely to be sentenced to death as those who kill blacks” (Pierce & Radelet, 2011).  Second, from 1991 to 2001, 82.8% of homicide victims were black, “but only 47.8% of those sentenced to death since 1990 were convicted of killing blacks” (Pierce & Radelet, 2011). These statistics show that blacks do not murder at a higher rate than whites. In addition, it also shows that the white-on-black crime dyad is not punished as often as the black-on-white or white-on-white dyads (Pierce & Radelet, 2011).

Reforms in the post-Gregg era, then, have not solved the problems of racial bias. The de facto death penalty moratorium ended when the U.S. Supreme Court approved of Georgia’s new sentencing schemes in the landmark case Gregg v. Georgia (1976). Significant changes in its criminal code included, among other things, a mandatory automatic appeals process for capital cases that ended in a conviction. Louisiana remodeled their law similarly, while also adding “Rule 28,” requiring that the “district attorney and the defendant shall file sentence review memoranda addressed to the propriety of the sentence” (Sarma, Bidish & Cohn, 2009). These Sentence Review Memoranda (SRM) lists all past capital cases within the district that the case at hand was tried in. The Louisiana Supreme Court then conducts a proportionality review, using the SRMs to examine inconsistencies or arbitrariness with the lower court’s decision. However, Sarma et al., (2009) has noted that this process is “woefully deficient.” Districts that have either never carried out a death sentence or have tried very few do not serve well in a proportionality review. Lafayette Parish, for example, has only tried one death penalty case since 1950. The SRM in Lafayette’s most recent capital case, State v. Prejean (2008), could only compare elements of arbitrariness with a case that was nearly sixty years old—not to mention it was also pre-Gregg (Sarma et al., 2009). Another problem with Louisiana’s proportionality review is its focus on cases that ended with the defendant sentenced to death. Cases that show similarity in the type of crime committed or the number of aggravations present are not considered if they only resulted in life imprisonment. Chief Justice Krivosha is most critical of Louisiana’s review system by using the analogy of public transportation; it is erroneous to conclude that “since everyone in the back of the bus looks alike, there is no discrimination” because it is also necessary “to look at who is riding in the front of the bus as well in order to determine whether persons in the back are being discriminated against” (as cited in Sarma et al., 2009). SRM’s are thus ineffective because they do not include cases with similar criminal elements or cases that did not result in the death penalty. Moreover, defendants from districts with limited history of the death penalty are more likely not to receive a fair appeals challenge.

Conventional wisdom and scholarly opinions have advocated that the death penalty reduces murder rates in certain instances. The fairness of the death penalty, on the other hand, is an entirely different issue. Some states may not have issues with discrimination in their justice systems; indeed, some of the post-Gregg reforms may have been effective at reducing racial bias. But if the death penalty cannot be applied equally across all fifty states, then it is hard to argue for anything less than its complete abandonment. Not only would retention create issues of arbitrariness based on geography, but it would violate the fundamentals of a justice system based on equal protection under the law. In the case of Louisiana, not only is it evident that there exists racial bias, but it is also the case that the archaic system was purposefully crafted to target blacks more than whites. Such a system is immoral, unjust, and flat out racist. Only when Louisiana lawmakers realize the racist history of the death penalty can there be a movement towards abolition.

Bibliography

 

  1. Bedau, A.H. “Someday Mccleskey will be Death Penality’s Dred Scott.” Los Angeles Times, 1 May 1987, http://articles.latimes.com/1987-05-01/local/me-1592_1_death-penalty.
  2. Coll, S. “Disparities.” The New Yorker, 8 Oct. 2007, http://www.newyorker.com/magazine/2007/10/08/disparities.
  3. Editorial Board. “Louisiana’s Color Coded Death Penalty.” The New York  Times, 9 May 2016. https://www.nytimes.com/2016/05/09/opinion/louisianas-color-coded-death-penalty.html?_r=0.
  4. Gettleman, J. “Prosecutor’s Morbid Neckties Stir Criticism.” The New York Times, 5 Jan. 2003, http://www.nytimes.com/2003/01/05/us/prosecutors-morbid-neckties-stir-criticism.html.
  5. Pierce, L. G., & Radelet, L. M. “Death Sentencing in East Baton Rouge Parish.” 2011, 1990-2008. Louisiana Law Review.
  6. Richey, W. “How Hard Can Judges Crack Down on Bias?” Christian Science Monitor, pp. 2.
  7. Robertson, C. “History of Lynching in the South Documents Nearly 4,000 Names.” The New York Times, 10 Feb 2015. http://www.nytimes.com/2015/02/10/us/history-of-lynchings-in-the-south-documents-nearly-4000-names.html.
  8. Sarma, J. B. & Smith, J. R. “How and Why Race Continues to Influence The Administration of Criminal Justice in Louisiana. 2012, Louisiana Law Review.

                 – – – & Cohen, B. G. (2009). “Struck by Lightning: Walker v. Georgia and Louisiana’s Proportionality Review of Death Sentences. Southern Louisiana Law Review.

A More Stringent Theory of Democratic Citizenship

Expanding the political franchise to include the interests of as many as possible is a laudable goal. It seems intuitive that allowing more people to participate in the political process will yield more favorable policy outcomes for everyone, thereby increasing the soundness of our democracy.  Donaldson and Kymlicka take this idea to an extreme, arguing that democratic citizenship should be redefined to include domesticated animals because they have the capacities expected from political agents.[1] They claim that domesticated animals can make their preferences known, and that these preferences deserve to be served by society.[2] Acknowledging that animals and other groups like the mentally disabled are served to some degree by society without having citizenship status, the authors argue that these groups are still entitled to full democratic citizenship. To accomplish this, they propose a redefinition of the citizen that places little emphasis on agency in its most robust definition. Instead, they argue that what qualifies a being for democratic citizenship is the ability to articulate its preferences.[3] Donaldson and Kymlicka’s weakened qualifications for democratic citizenship should be rejected because recognizing the reflective nature of agency is essential for the theoretical justification of the obligatory relationship between citizen and state. Democratic citizens must consent not just to be governed by society, but to fulfill the role of co-legislators in order for their political authority to be justified. First, I will argue that reflective agency is absolutely necessary for membership in the political community. I adopt the Kantian definition of agency within a community[4], but base my argument on intuitions that do not assume any of Kant’s conclusions. Then, I will address objections that Donaldson and Kymlicka would make to my proposed qualifications for democratic citizenship.

The foundation of democratic citizenship is agency, the ability to make free choices and act on them.  Agency is so vital to political participation because it is the means through which humans make their preferences known to other members of the community.  Through the centuries, the definition of democracy has changed, but the principle that democracies act in the public’s best interest has remained constant.  Since a political community cannot serve the public interest if this interest is never decided on or articulated, democracy cannot exist without individual agency.

Individual agency is limited by a shared moral obligation among all beings who have it.  That we live among others necessitates our interaction with other humans with equal capacities to represent their interests.  In having agency, we must recognize our obligation to respect the interests of others as much as our own.  This self-conscious respect forms a community of equals in which everyone’s interests have equal weight because they recognize the equality of everyone else’s interests.[5]  Living with agency therefore dictates not just that a person has and articulates their interest, but also that they understand that they are equally bound by the interests of other agents.  This mutual understanding is the foundation of moral obligation between people.  It is also a capacity that animals and the mentally disabled lack.  These groups have definite interests and methods of articulating them, but they do not have the capacity to understand their interests’ relationship to the interests of those around them.  Proving that this lack of complete agency disqualifies these groups from democratic citizenship requires an inquiry into how agency relates to the contract-based foundations of democracy.

The formation of a political community necessitates a consensual relationship between society and citizen that can only be legitimately initiated and maintained through the use of individual agency.  Individuals, already possessing the capacity for agency, must consent to take part in the political community.  Consent does not only involve approving the use of power when it serves one’s interests.  Rather, the action of giving consent is a reflection that the agent understands their dual role: that of an actor whose interests have legislative power and that of a recipient who is bound by legislation with the knowledge that it reflects the interests of their equals.  Political agents’ recognition of their reciprocal relationship with the state forms the moral obligation that makes the social contract binding.  Without it, there is no moral principle underlying the alleged consent between society and, for example, domesticated animals.  Locke and other social contract theorists rest their ideas on the existence of moral obligations inherent to a contract, but do not adequately justify the existence of moral obligation in the first place.  Defining moral obligation in these reciprocal terms solves the problem of legitimizing the binding nature of the social contract.

Democratic citizenship can only be formed in this way because this relationship legitimates all power in a democracy.  Without the consent of each individual actor whose interests are represented, authority in a democracy cannot be justified.  Since authority is exercised by each person over every other person by means of their equal political voice, groups without the full capacity for agency do not qualify for this authority.  A domesticated animal undoubtedly has the ability to communicate its interests, but that does not give it a relationship of reciprocal authority with its owner.  The owner, assuming that they are an agent, has the ability to recognize their presence in a community of people with interests and treat each interest with equal respect.  Not knowing this, the domesticated animal has no legitimate claim to moral obligation in the strictest sense.  The animal can be seen as a moral patient whose needs are served by society, but without agency they have no means to enter into the morally binding relationship of democratic citizenship.

The immediate objection to my argument is that it is immoral to exclude groups like domesticated animals, the mentally disabled, and even children from the political franchise because their subjective ideas of the good and ability to communicate entitle them to moral and political obligation.  Donaldson and Kymlicka argue against the idea of domesticated animals as moral patients, claiming that animals have faculties that qualify them for moral agency.[6]  It is true that states owe an obligation to these groups, but this obligation does not include admittance into the political franchise.  That society takes care of these groups is a product of the common intuition towards humane treatment. There is also a philosophical justification for our moral obligation towards animals and the disabled: as beings who feel pleasure and pain, they are entitled to have their interests served by the moral community.  They may be entitled to obligation from moral agents, but they lack the ability to recognize their shared obligation to every other agent, an ability that forms the foundation of moral personhood.  Meaningful political participation requires of someone the knowledge that their actions and interests have equal power to legislate as any other interests present in the political community.   Without this knowledge, agents are reduced to moral patients, who are entitled to have their interests served but do not have the cognitive ability to represent themselves as equal legislators.  Allowing beings of this type into the political community robs democratic citizenship of its theoretical legitimacy.

One way that Donaldson and Kymlicka attempt to get around this problem is by introducing the idea of an agency gradient, arguing that everyone needs some form of assistance to make their political voices heard, and domesticated animals merely require more assistance than humans do.[7]  This is a powerful argument in favor of extremely widened inclusion in the political community, but it misses the most important qualification of democratic citizenship, the reflective ability to see oneself as equally legislating and bound by the legislation of the political community.  I draw a strict line in the agency gradient that allows for the distinctions that the authors claim are impossible to make.  Additionally, assisted agency is only a means for democratic citizens to interpret the interests of political patients.  It allows these patients to express their preferences, but does not communicate any self-conscious sense that their preferences have an effect on the political community.

The authors’ strongest argument that animals possess self-determined agency is that since they have the ability to conform to social expectations and even to shape expectations themselves, they fit the qualification of recognizing their ability to shape a community.[8]  Their argument rests on the principle that humans and animals have the ability to act morally without reflection, that intuition is enough to enforce a moral code in a community.  But acting based on moral intuition is not enough to justify political citizenship.  Political power must be derived from a theoretically sound consensual relationship.  This relationship must be the basis of all legitimate political action, especially the actions required of a democratic citizen.  Relying solely on moral intuitions to govern people justifies the inclusion of any being who shows a sense of social pressures.  The authors point out that animals in the wild and in domestic settings often deal with complex social practices.[9] However, displaying a sense of fairness, for example, does not imply that this sense is grounded in anything besides personal interest and intuition.  In this argument, Donaldson and Kymlicka give undue weight to the symptoms of political citizenship, while ignoring the vitally important theoretical foundations of consensual relationships.

The authors also argue that citizenship is a necessary condition for agency to exist, and that granting political citizenship, and its inherent obligations from the community, enables agency in individuals.[10]  While the idea that inclusion in the community enables agency is an empowering justification for inclusion, it favors an action-based account of agency while ignoring an equally important aspect, freedom of choice.  Adopting the idea of a state of nature, or a natural state of mankind independent from outside influence, and the theory that humans consent to enter a political community,[11] it is intuitive that agency predates political citizenship.  Humans exercise their agency in their unconstrained ability to choose to become democratic citizens.  So, agency is the determining feature of democratic citizenship, not the other way around.

That domesticated animals exhibit capacities that meet the minimum standards of our current definition of the democratic citizen does not justify weakening these standards to include animals.  This would miss the theoretical legitimacy of democratic citizenship that can only be derived from reflective individual agency, a capacity that domesticated animals do not possess.  I do not draw a line on the species barrier; if a human does not meet the requirements of democratic citizenship, then including them in the franchise is unjustifiable.  Making this theoretical determination leaves a set of empirical concerns, most prominently how to identify reflective agency in individuals.  Enforcing the requirements for legitimate democratic citizenship must involve testing potential voters, but testing them only on their ability to understand their agency within a political community.  This does not mean that literacy tests, voter ID laws, or other historically racist methods of weeding out allegedly unqualified voters were ever justified.  Determining who belongs in the political community requires determining who has the degree of agency required for it.  Research into exactly how to test the degree of people’s agency is necessary before any change to the political community can be implemented.

[1] Sue Donaldson and Will Kymlicka, Zoopolis (Oxford: Oxford University Press, 2011), 101.

[2] Donaldson and Kymlicka, Zoopolis, 109.

[3] Donaldson and Kymlicka, Zoopolis, 110-115.

[4] “A rational being belongs as a member to the kingdom of ends when he gives universal laws in it but is also himself subject to these laws.” Immanuel Kant, Groundwork for the Metaphysics of Morals. Trans. Mary J. Gregor and Jens Timmerman (Cambridge: Cambridge University Press, 2012), 41.

[5] Kant, Groundwork, 41-42.

[6] Donaldson and Kymlicka, Zoopolis, 103.

[7] Donaldson and Kymlicka, Zoopolis, 104.

[8] Donaldson and Kymlicka, Zoopolis, 116.

[9] Donaldson and Kymlicka, Zoopolis, 116-120.

[10] Donaldson and Kymlicka, Zoopolis, 60.

[11] John Locke, Second Treatise of Government, (Urbana: Project Gutenberg, 2010) viii.95

 

Bibliography

  1. Donaldson, Sue and Will Kymlicka. Zoopolis: A Political Theory of Animal Rights. S.l.: Oxford University Press, 2011. Print.
  2. Kant, Immanuel. Groundwork of the Metaphysics of Morals. Trans. Mary J. Gregor and Jens  Timmermann. Cambridge: Cambridge University Press, 2012. Print.
  3. Locke, John. “Second Treatise Of Government.” Project Gutenberg. N.p., 28 July 2010. Web. 12 May 2017.

The Efficacy of International Human Rights Courts: A Case Study of Uganda

The general consensus in the current literature on the efficacy of international human rights courts is rather positive. Kim and Sikkink (2010), Meernik (2003), and Akhavan (2009) agree on their ability to improve human rights through a number of legal and social means. However, Snyder and Vinjamuri (2003) remain more skeptical about their effects compared to other notable scholars, due to the potential for international human rights courts to destabilize by undermining their sovereignty. Overall, most of the literature on human rights courts is in consensus on international courts’ ability to improve human rights in both the social and legal realm and deter future human rights violations.

Kim and Sikkinik’s (2010) study examined the possible effects of human rights prosecutions and found that they decreased government repression in the long-term. They studied 100 transitional countries between 1984 and 2004 and classified three specific transitions: democratic transition, transition from civil war, and transition by state creation. Their dependent variable was political repression, operationalized by using the physical integrity index from CIRI scores. These scores encompass the amount of civil, political and workers’ rights that exist in each country on an 8-point scale, with higher numbers signaling lower rates of political repression. The independent variables were the variety of human rights prosecutions that occurred: domestic prosecutions for human rights crimes committed in the country, international prosecutions, foreign prosecutions, in which one country held another country’s leader on trial, and hybrid courts. Kim and Sikkink (2010) found that human rights prosecutions had a strong statistically significant impact on the decreasing level of political repression. Countries with human rights prosecutions had lower levels of repression than those without prosecutions. The level of repression also decreased as the number of years with human rights prosecution increased. One of the strengths in the study lay in the selection of transitional countries, which generally have worse human rights records, yet international courts were still able to decrease repression rates. Additionally, their verification of their measurements of repression bolstered their conclusions as both CIRI scores and the Political Terror Scale indicated an improvement of human rights practices post-transition. Their consideration of various forms of human rights prosecutions aided in revealing the cumulative effect of all types of human rights prosecutions. However, they failed to go into detail about the specific effects of domestic versus international or foreign prosecutions, leaving open the question of which method is most responsible for improvements in human rights. Additionally, there was little discussion of the effects of the different processes of transition in improving adherence to international human rights norms compared to one another. Moreover, their brief consideration of transition by state creation or democratic transition ignored the effects that colonial roots may have, for example, whether British colonies may have better human rights prosecutions than French ones. Ultimately, Kim and Sikkink’s (2010) study was representative of the general optimism surrounding the effect of international courts and human rights prosecutions.

Meernik (2003) expanded upon Kim and Sikkink’s (2010) research by separating the possible legal and political factors that could affect sentencing in the International Criminal Tribunal for the former Yugoslavia (ICTY), and found that the Court operates on primarily legal factors. He predicted verdicts based on legal or political variables pulled from the ICTY website, to examine which ones had the most influence and evaluate the “fairness” of the court. His political model’s independent variables were the differences in expertise, ethnicity, number of witnesses called by the judge, number of judges from NATO nations, and arrests by the stabilization force (SFOR). His legal model’s independent variables were the gravity of the crime, the individual’s level of responsibility and whether the individual agreed to a plea bargain. Meernik (2003) concluded that the ICTY mainly follows the legal model; those convicted of the worst crimes, the most offenses and who bore the most responsibility for these crimes would receive the most severe sentencing. He found that most political factors do not play a significant role in sentencing, except for the number of witnesses called to testify. The strength of his study lay in the separation of political and legal factors that created a clear distinction between the effect of each category of variables. However, his grouping of NATO judges was problematic as he assumed they had the same training and values. He did not consider the differing legal traditions in each of the NATO states, such as the unique use of the death penalty in the United States. He also failed to explain the category of the crime and whether genocide or war crimes carry a more severe sentence compared to other types of crimes. Meernik’s (2003) analysis informed Kim and Sikkink’s (2010) research by focusing on the legal workings of the court system. It gave a possible reason for improved adherence to human rights norms, as the structured, unbiased nature of the ICTY can punish those responsible, relieving lingering emotional tensions, and act as a guide for an impartial legal system. Additionally, while Yugoslavia is not technically a transitional state in the definitions that Kim and Sikkink (2010) used, it still has to transition back to peaceful civil life after a bloody conflict. The ICTY could aid in guiding them back to civil society by reinforcing the legal norms. This could parallel the reinstatement of law through human rights prosecutions that may have occurred in the countries that Kim and Sikkink (2010) studied, as they also transitioned from a state of conflict, back to some sort of peace.

Akhavan (2009) supported Meernik’s (2003) research by using case studies to find that the International Criminal Court (ICC) played a significant social, rather than merely a legal, role in deterring violence. Akhavan (2009) selected three ICC situations where no individual was held legally responsible and indictments were not issued: Cote d’Ivoire, northern Uganda and the Darfur region of Sudan. He found that in Cote d’Ivoire, the threat of referral to the ICC stopped the propagation of hate-filled, discriminatory radio broadcasts that could incite violence. In Uganda, Sudan was less willing to protect the Lord’s Resistance Army once the case was referred to the ICC. The stigma the ICC placed on the LRA pressured Sudan to distance themselves from the LRA. In Darfur, the pressure the ICC placed on the Sudanese government made them use Janjaweed leaders as a scapegoat, which aided in disrupting ethnic cleansing in the region. One of the strengths of his study was in examining cases with various methods of referral to the ICC. The broad deterrent effect of the ICC applied to whatever method was present. Additionally, he also considered the social effects of the Court and their method of naming and shaming campaigns to induce change. However, Akhavan (2009) was also not able to separate the specific effects of the ICC from the effects of general condemnation of other nations. Additionally, he also examined rather weak and politically tumultuous states and did not consider whether the trend would hold for internationally powerful states. Akhavan’s (2009) study was still able to supplement those that came before. Unlike Meernik (2003), he studied the effect of the Court through political and social methods and its ability to follow more Constructivist ideas of changing norms and increasing the social and political price of committing human rights violations. Akhavan (2009) also served as a direct companion to Kim and Sikkink (2010) in their conclusion that international courts and human rights prosecution can prevent future human rights violations rather than merely deal with the perpetrators after-the-fact, by thoroughly examining the methods behind such a change, rather than just observing a trend, as Kim and Sikkink (2010) did. Akhavan (2009) depicted a more activist court in leveraging its international social weight to intimidate governments to stop violating human rights.

Snyder and Vinjamuri (2003) took a more pessimistic view of the effect of international courts, as they concluded that international courts destabilized the countries they prosecuted. They examined 32 cases of civil wars between 1989 and 2003. Snyder and Vinjamuri (2003) conducted an observational study, and examined the rule of law and existing human rights standards to assess how trends in these dependent variables related to their independent variables, the strategy of justice used in each case: trials, truth commissions and amnesty. They found that trials can end abuses when spoiler groups were weak and the domestic legal infrastructure was reasonably well-established. Otherwise trials could incite further violence and deepen ethnic cleavages. The strength in their study lay in their examination of multiple methods of justice (trials, truth commissions and amnesties), as well as a variety of countries, which showed the varied effects of each method of justice on a state’s human rights. However, Snyder and Vinjamuri’s (2003) multiple case studies did not delve deeper into the more complex social implications of each method of justice, but were more surface conclusions. Furthermore, there was little discussion to the reaction of victims and their families to the lack of prosecution as they reduced a humanitarian problem to a political one. Snyder and Vinjamuri (2003) departed from Meernik’s (2003) conclusions that an impartial court can bring about improvements, rather, they preferred political factors to influence decisions of justice as each case should be placed in its international political context to decide the next steps, which could be amnesty if the political landscape was still too dangerous for human rights prosecutions. While Akhavan (2009) presented the ICC as a method of possibly solving the trade-off between political expedience and justice through collective action and reinforcement of norms, Snyder and Vinjamuri (2003) accepted politically expedient deals as often the only peaceful way to end conflict. Snyder and Vinjamuri (2003) were more conservative about the effect of human rights prosecutions compared to Kim and Sikkink (2010). They did not completely despair at the effects of human rights prosecutions, merely that they were effective under certain political conditions of an already democratizing state.

The scholars discussed above are quite optimistic about the impact international human rights courts can have. Kim and Sikkink (2010), Meernik (2003), and Akhavan (2009) emphasized the courts’ impartial and fair nature that can reinforce human rights norms and aid countries in having a robust legal system to properly prosecute human rights offenders. However, Snyder and Vinjamuri (2003) were more conservative in their estimate of the effects of international courts. Ultimately, the power of the courts in academic literature was assumed to be positive.

While the literature has an optimistic perspective on the improvements international courts can bring, the effect of the International Criminal Court in Uganda was much more tempered. The ICC was spurred into action by the atrocities committed by the Lord’s Resistance Army (LRA), headed by Joseph Kony, including widespread abduction of children and adults, the use of forced child soldiers and sexual slavery (Silverman 2014). While there has been some short-term improvement in the Ugandan legal structure and an indication of a social awareness of human rights, there seems to be little promise for any long-term improvements in human rights.

The ICC had a fair amount of influence over the reforming of the legal structure in Uganda. Before the ICC, Amnesty International (1994) indicated few methods for recourse if one is victim of a human rights violation. Additionally, they noted the complicity of local authorities in refusing or delaying trials to prosecute human rights violations, particularly those perpetrated by Ugandan soldiers or LRA members. According to the ACCORD Report (2015), the ICC promoted the creation of a number of laws and a new court to hold perpetrators of grave injustices more accountable. Specifically, they sponsored the International Criminal Court Act of 2010, the Accountability and Reconciliation Agreement with the LRA, and are seeking to pass a Prevention of Genocide Bill through the Ugandan Parliament, which establishes an Independent National Committee to spearhead the fight against genocide. One of the clearest signs of the ICC’s influence was the creation of the War Crimes Court, which was directly modelled after international tribunals with a judicial bench consisting of at least three judges, a registry, an Office of the Prosecutor and a Defense Court (ACCORD 2015). These developments were an improvement from the previous lack of judicial structures for these particular subset of atrocities. Additionally, even the presence of such structures could raise the cost of performing such acts and deter future attacks by the LRA. It could also spread the norms of the unacceptability of violating human rights, as well as establishing a sense of a rule of law and, as Akhavan (2009) noted, could use international political pressure to stop the LRA. These influences by the ICC and its potential to charge human rights violators could inform Meernik’s (2003) study as the impartiality of the ICC could be transferred to the domestic institutions it has helped build, such as the War Crimes Court. The fair prosecution of leaders of the LRA could also aid in splintering the organization of the group, which has been cited as one of the factors behind the shrinking power of the LRA and its decreasing rates of child abductions and violent attacks. The guidance of the ICC can aid in Uganda strengthening and clarifying its legal protections against human rights violations.

However, despite the promising start of these institutions, there seems to be little evidence on continuing improvements in the long-term. The LRA, though greatly weakened, is still operating and abducting children (Human Rights Watch 2005). There is only one pending prosecution against Thomas Kwoyelo, a high-ranking LRA colonel, in the War Crime Division of the High Court, leaving the efficacy of the court uncertain and casting skepticism on the idea that the War Crime Division will truly prosecute everyone involved (Human Rights Watch 2011). Overall, Uganda’s Freedom House score is consistently high, demonstrating a flawed rule of law and a lack of civil rights for its citizens (Freedom House 2015). The United States Department of State (2016) continues to classify the crime rate, as well as domestic and international terrorist threats to Uganda as critical, suggesting the implementation of new legal standards and courts were not as effective as the ICC expected. Kim and Sikkink’s (2010) conclusions about the beneficial nature of human rights prosecutions through international and domestic courts, were somewhat challenged by the fact that despite the slight improvements at the start of the reform process by the ICC, its effects may be more difficult to translate into the long-term.

The ICC has also attempted to bring justice to victims of human rights violations and their families, by further strengthening social acceptance of human rights. Previous to the arrival of the ICC, the lack of trials or accountability left victims of human rights abuses and domestic crimes vulnerable to physical and economic intimidation by their attacker (Human Rights Watch 2005). Moreover, ACCORD International (2010) reported that many victims were often socially stigmatized from their communities after experiencing human rights violations or other crimes, particularly if the crime was sexual, which was common for women kidnapped or attacked by LRA members. They were often forced not to report their crimes as police officials extorted money if they did report it or were often bribed to not take action, ultimately contributing to the culture of silence and ignorance of human rights violations. In a study by the Human Rights Center at the University of Berkeley (2005) of 2,585 Ugandans from four Northern districts, 76% of respondents indicated a desire for some accountability for the actions of abusers and, of the small percentage who have heard of the ICC, 91% believed it would contribute peace and justice. Another study by the ACCORD International (2015) also found the majority of their 20 respondents also noted the beneficial social impacts of the ICC, such as raising awareness of existing law to protect against human rights violations and its ability to “touch the untouchables”. The desire for adherence to international human rights norms allowed the ICC to have a place in the Ugandan legal system, which could build the social foundation for a more just and sophisticated understanding of the law, which can further motivate legal reform. Furthermore, such awareness of human rights abuses and options to prosecute them could also prevent future abuses as the definitions of human rights abuse were clarified and action could be taken, which was consistent with Kim and Sikkink’s (2010) predictions of the use of human rights prosecutions in transitional justice.

Complicating this optimism, there is disagreement as to whether the ICC can exact justice consistent with Ugandan culture, tempering its efficacy. Rates of corruption and police abuse, as well as the social stigmatizing of human rights victims still were quite high (ACCORD International 2010). In ACCORD International’s (2015) study, 33% of respondents argued that the ICC was taking the focus away from restorative justice mechanisms that were highly present in the Aicholi culture and highlighting the West’s more retributive form of justice. Additionally, the study by the Human Rights Center (2005) showed the same spectrum of results as 66% of respondents favored more punishing consequences (trials, imprisonment and killing) and 22% favored more forgiving tactics of reconciliation and integration. Furthermore, ACCORD International (2015) also found that almost one-third of respondents considered the ICC an imposition of Western authority and had concerns of its Western bias. Therefore, the Ugandan experience paradigmatically falls in line with Snyder and Vinjamuri’s (2003) research of the possible ways in which human rights prosecutions could destabilize a region. Action should be taken within the context of a country’s nuanced political and social state at the time. The effect of the ICC was restrained due to opponents of its Western methods of justice. The ICC caused a further social divide and seemed like a Western, even neocolonial force imposing its own form of justice on the domestic legal structure. It ran the risk of damaging its credibility by ignoring local traditions and the people that support them. Furthermore, this also revealed another shortfall of the ICC in not informing the local people about its purpose and its methods. Few people knew about the ICC and mischaracterized it as an imposition of Western authority, rather than an impartial judge of human rights violators as Meernik (2003) suggested. Ultimately, the complex social impact of human rights violations and the politics of the justice made the ICC’s pursuit of justice for the victims much more complex.

There were still many strides made in the conflict and despite alternative explanations, the ICC could be directly attributed to the overall break down of the LRA, and consequently the small improvements in human rights in Uganda. One prominent explanation involved other international organizations such as the U.N. who sent their peacekeepers, that could account for the decreasing power of the LRA (Jowell 2014). However, the United Nations Peacekeeping Force, while acting as a deterrent against future violence, was limited to its military capabilities. It would not be able to resolve the need for justice and emotional closure within Uganda after such widespread human rights violations. The ICC could provide some sense of justice through its process. Additionally, the U.N. Peacekeepers would only be able to influence a small portion of the population due to its practical physical limitations. The spectacle of an ICC trial could be more effective in imparting human rights norms and demonstrating the strength of the international community in condemning human rights violators. Lastly, the U.N Peacekeepers were a military force, whereas the ICC served to bring about peace through solely peaceful means.

The effect of the ICC in improving adherence to international human rights norms and delivering justice in Uganda was much more tempered than the scholarly literature suggests. The ICC aided in reforming the Ugandan legal system, however its effect on crime and domestic and internal terrorism seem to be minimal. Additionally, the ICC may further complicate matters in the region as the debate between the ICC’s Western method of justice clashes with the traditional, restorative method of forgiveness. Its impact was far more nuanced than the academic literature suggested.

Bibliography

  1. Akhavan, Payam. “Are International Criminal Tribunals a Disincentive to Peace?: Reconciling Judicial Romanticism with Political Realism.” Human Rights Quarterly 31.3 (2009): 624-654.
  2. “Amnesty International Report 1994 – Uganda.” Refworld. Amnesty International, 1994. Web. 24 May 2017.
  3. “Forgotten Voices: A Population-based Survey on Attitudes about Peace and Justice in Northern Uganda.” ReliefWeb. Human Rights Center at the University of Berkley, 25 July 2005. Web. 24 May 2017.
  4. Jowell, Marco. “Peacekeeping Country Profile: Uganda.” Providing for Peacekeeping. Providing for Peacekeeping, 2014. Web. 24 May 2017.
  5. “Justice for Serious Crimes before National Courts.” Human Rights Watch. Human Rights Watch, 07 July 2015. Web. 24 May 2017.
  6. Kim, Hunjoon, and Kathryn Sikkink. “Explaining the Deterrence Effect of Human Rights Prosecutions for Transitional Countries.” International Studies Quarterly 54.4 (2010): 939-963.
  7. “Making the Law Count: A Synthesis Audit of Legal Practice on Sexual Violence.” ACCORD International (n.d.): n. pag. ACCORD International. ACCORD International, Mar. 2010. Web.
  8. Meernik, James. “Victor’s Justice or the Law? Judging And Punishing At The International Criminal Tribunal For The Former Yugoslavia.” Journal of Conflict Resolution 47.2 (2003): 140-162.
  9. Snyder, Jack, and Leslie Vinjamuri. “Trials and Errors: Principle and Pragmatism in Strategies of International Justice.” (2003).
  10. Silverman, Emma. “Washington State University.” Roots of the Lords Resistance Army. N.P., 29 Aug. 2014. Web. 24 May 2017.
  11. “The International Criminal Court and Conflict Transformation in Uganda.” ACCORD. ACCORD, 2015. Web. 24 May 2017.
  12. “Uganda 2016 Crime & Safety Report.” United States State Department. United States State Department, 2016. Web. 24 May 2017.
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15 Million Sterilizations to American Purity: The Past, Present, and Future of Buck v. Bell

Abstract

In 1914, standing in Battle Creek, Michigan, a prominent eugenicist proclaimed that 15 million sterilizations over the next 65 years would be necessary to protect the purity of the American people. While he would not realize this goal, he would play an active role in the passage of laws permitting sterilization and in the Court-sanctioned sterilization of over 60,000 “feeble-minded” people before the mid-1960s. This paper will examine the Supreme Court case Buck v. Bell (1927), one of the cases that made these sterilizations possible, and will focus on the circumstances under which such a case was allowed to proceed, some of the reasons why the Court’s decision in Buck has remained good law, and the possible implications of judicial restraint in the face of others’ inaction.

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In 1914, standing in Battle Creek, Michigan, a prominent eugenicist proclaimed that the purity of the American people was dependent upon 15 million sterilizations over the next 65 years (Lombardo 47). Those with “all manner of congenital defect…from the simply backward boy or girl…to the profound idiot” should be prevented from destroying humanity (Lombardo 15). It was only eleven years later in Buck v. Bell that the Supreme Court expressed the constitutionality of this sentiment, a decision that was never overturned. This paper will explore the political and judicial environment and implications of this blemish on the American present.

It is necessary to note that understanding Buck v. Bell solely in the context of race, gender, or class would be inaccurate because the central legal question was not equal protection. Even so, there were disparate implications for Black, Native American, and Puerto Rican people (Oberman 376-7, Lombardo 248). Feeble-minded women were targeted for their abnormal sex drives (Goldstein 3, 6), and Carrie Buck, the plaintiff, was called part of the “shiftless, ignorant, and worthless class of antisocial whites of the South,” a denigration of her social standing (Lombardo 138, 248). Among the lasting takeaways of the case, therefore, should be the potential ultimate impact of normalizing widespread prejudice in society.

Eugenic philosophy began to gain popularity long before Buck v. Bell. Gregor Mendel’s work on genetics was rediscovered in 1900, providing scientific proof for hereditary traits. Some scientists extrapolated from Mendel’s research that intellect and degeneracy were also passed down. The results of the military’s Binet-Simon intelligence testing around the same time period concluded that ‘degeneracy’ was increasing (Thompson 130). These developments shifted eugenics from promoting the procreation of the ‘strong’ to advocating for sterilization in the feeble-minded as a preventative measure. Nobel prize-winning geneticists, major university presidents, and Presidents Roosevelt, Taft, Wilson, and Coolidge all believed in eugenics (Larson 123). In 1882, clear support for purifying the population was seen through immigration restrictions, and, in 1921, post-World War I xenophobia led to strict quotas (Cynkar 1432). The primary social movements advocated for ‘cleaning’ the population; the Purity Crusade aimed to decrease promiscuity, the Social Hygiene movement emphasized science as a drive for legal reform, and progressivist ideas such as efficiency in government via delegation to private experts promoted science (Lombardo 15-17). Although it is unclear whether sterilization itself was popular – despite the widespread use of these laws, multiple states, such as Oregon in 1913, at least attempted to repeal sterilization statutes by popular referendum. Even without a broad consensus, the law reflected the vocal lobbyists from these social movements rather than the opinions of the general populace (Oberman 359, 368).

The obvious criticisms arose in response to eugenics. Scientists expressed disagreement with using Mendelian genetics as justification for policies like sterilization (Lombardo 52-54). Others criticized the legislation, citing a lack of clear criteria for feeble-mindedness, insufficient scientific evidence, and the evident potential for unfair application of the law (Lombardo 53). Even so, prohibitions on marriage between the feeble-minded and others were passed around the country.

The sterilization laws initially applied only to felons and were put into practice before receiving legislative approval (Lombardo 21). In a Kansas institution, before sterilization was legalized, a doctor performed castrations in an institution for the Feebleminded (Cynkar 1432). Similarly, in Indiana, a doctor performed vasectomies on several hundred prisoners to test the effectiveness of a new procedure (Lombardo 24). The success of these initial ‘safer’ vasectomies led to the legalization of sterilization in Indiana in 1907, the first such law in the United States (Cynkar 1433).

Soon after, sterilization was proposed in numerous other states. In Oregon (1909), Vermont (1913), Nebraska (1913), Idaho (1919), and twice in Pennsylvania (1905/1921), sterilization legislation was vetoed (Lombardo 316). It was successful in South Dakota (1917), North Carolina (1919), Alabama (1919), Montana (1923), Delaware (1923), and New York (1912, repealed in 1920) (Lombardo 316). Although 23 states had passed at least one sterilization law by 1925, there had also been multiple judicial challenges. In Michigan (Haynes v. Lapeer Circuit Judge in 1918), New Jersey (Smith v. Board of Examiners of Feeble-Minded in 1913), and New York (Osborn v. Thomson in 1918), sterilization laws were found to violate the Equal Protection clause of the Fourteenth Amendment because it applied to only those in institutions. Indiana (Williams v. Smith in 1921) and Oregon (State Board of Eugenics v. Cline in 1921) both found that their laws’ mandated hearings were insufficient for due process. In Nevada, Mickle v. Henrichs in 1918 found a sterilization of criminals law cruel and unusual. In contrast, a 1912 case in Washington, State v. Feilen found that sterilization by vasectomy, as applied to statutory rapists and habitual criminals, was not cruel and unusual (State v. Feilen 6). The Court claimed that, since the death penalty could be imposed on convicted rapists, anything less than death was not a cruel and unusual punishment (Feilen 7). This analysis would be seen again in Buck v. Bell, more than ten years later.

The Supreme Court did briefly see a challenge to Iowa’s sterilization law in Berry v. Davis (1917) but did not need to answer the question of constitutionality. Injunctive relief had become superfluous by the time of the ruling because the act had been amended to no longer apply to the plaintiff. In the Supreme Court, the more substantive challenge to the constitutionality of compulsory sterilization, Buck v. Bell (1927), focused on a Virginia law with a violent history.

The first law proposed by Virginia’s eugenicists, though, was aimed at resolving the overcrowding of mental institutions by proposing colonies for the feebleminded (Lombardo 13). A 1912 law authorized admission of feebleminded women to the first such colony (Lombardo 18-19). In 1916, the law expanded to permit physicians to use their discretion in providing any necessary safe surgeries for the members of the Colony – the feebleminded could not effectively ‘consent’ to medical procedures, so decisions would need to be made on their behalf (Lombardo 60). Dr. Albert Priddy, also implicated in Buck, interpreted ‘surgery’ to mean sterilization procedures (Lombardo 61). By 1917, 50 sterilizations had occurred in Virginia under the guise of ‘pelvic disease’ operations and appendectomies (Lombardo 64). Priddy, however, had not been following legal procedure in committing members to the Colony. One family, the Mallorys, took advantage of his haphazard approach to paperwork and sued in 1917. The outcome of the case saw the non-consensual sterilization of one member of the family justified as a medical emergency (Lombardo 77), but the oldest child was ordered to be freed and a Juvenile Court ordered all the younger children to be brought out of the Colony by writ of habeas corpus (Lombardo 71, 76). The court proceedings had little impact on anyone outside of the Mallory family, though.

The final Virginia law, the Eugenical Sterilization Act (1924) indicated that under careful safeguard and by competent authority, vasectomies and salpingectomies could be performed on the feebleminded. Provisions for due process were included, such as the right to a lawyer and an appeal, a right to notification of an appointed or legal guardian, and a board hearing (Lombardo 98-99). The passage of this legislation was underplayed by news outlets and unnoticed by civilians throughout the state, in part due to the widespread nativism and racism after WWI (Cynkar 1436). The Virginia law was also not exceptional – ten other states already had active sterilization statutes (Lombardo 98).

After Mallory, Priddy was unprepared to begin sterilizations under the 1924 law without assurance. He, along with others on the sterilization approval Board, planned to build a test case that would go to the Supreme Court (Lombardo 101-102). The first step was creating a plaintiff. Carrie Buck was a 17-year old committed to the Colony by her foster parents due to her feeble-mindedness and promiscuity – she had an ‘illegitimate’ daughter. She had no relatives other than her mother, who was also institutionalized, and no friends, making her an easy target (Berns 765).

As a result, the case was not meant to be fair. Her appointed attorney was Irving Whitehead, who was on the Colony Board, the Colony payroll, and attended Colony Board meetings throughout the case (Oberman 366). He brought no witnesses, didn’t ask any useful questions, made arguments for the other side, and ignored blatantly inaccurate statements about Buck (Lombardo 135, 139). It was said afterwards that “Priddy had two attorneys and Carrie had none” (Oberman 366). Most of the witnesses who testified on her feeblemindedness had never met Buck (Lombardo 138). Later in life, she was described as an ‘avid reader’ and a ‘lucid conversationalist’, making their testimonies not only uninformed, but also likely inaccurate (Thompson 147). These witnesses led the Court to conclude that Buck was the “probable potential parent of socially inadequate offspring” (Berns 765). This vague, inconclusive statement that criticized Buck for actions yet to be taken or proven was quoted in the Buck decision. Carrie Buck’s ‘socially inadequate offspring’, Vivian Buck, who died at 8 of ‘enteric colitis’, was declared feebleminded at 7 months, but was later described as “very bright” by teachers at her school (Thompson 148). Even the circumstances of Buck’s commitment had been very questionable – she was pushed into the Colony by her foster parents, possibly because of her instance that her pregnancy was a result of a rape, committed by her foster cousin and punishable by death at the time (Lombardo 139, 140). Her appointed guardian consented to bringing suit against the colony administration on her behalf, so Buck was barely involved in her own case. It is unclear whether she ever even received the Virginia Supreme Court decision (Lombardo 154), and she only found out years later that the appendectomy she had endured had actually been a salpingectomy, a fact cited at trial (Goldstein 5).

The decision in Buck v. Bell (1927) was an 8 to 1 decision written by Justice Oliver W. Holmes, Jr. In his opinion, Holmes dealt with the major issues raised by state courts. He determined that the extensive hearing requirements in Virginia’s Eugenical Sterilization Act were sufficient for due process and that equal protection was not violated because those currently in the Colony would be released after sterilization and replaced, so everyone had the potential to be affected by the law. With regards to equal protection, he left the reasonability of class judgment to the legislature (Cynkar 1440). Holmes also argued that sterilization was not anymore unreasonable or inhumane than the draft or compulsory vaccinations, ruled constitutional in Jacobson v. Massachusetts (1905). Jacobson, the only precedent cited by Holmes, held that the state had a vested interest in the public health of the community when faced with an increasing smallpox threat (Jacobson v. Massachusetts 22, 27). There was no reference to strict scrutiny in the Buck decision, which seemed to be an oversight considering Lochner, a case that raised the question of whether the “power of the State to legislate or the right of the individual to liberty of person” should prevail in such cases (Berns 766-7). Seven of the justices on the Court were at least slightly moved by eugenics, though, making it unsurprising that they did not find individual liberty to be a major consideration in Buck (Cynkar 1451).

Holmes’ final holding, that sterilization was reasonable, faces the most criticism. His comparison of sterilization to the draft is met by academics who state that “American government, and all non-tyrannical government, is based on the recognition that there are greater evils than death”[i] (Berns 762). The use of Jacobson also has some failings. The opinion in Jacobson found that it was up to the legislature to determine what was justified by the “necessities of the case”, specifying that the court should interfere if the law reaches beyond what is needed for the public welfare (Jacobson 12, 34-35). In Buck, it was easy to see that Carrie Buck was not ‘feeble-minded’ enough to require sterilization in the name of the public welfare – her only act against society at that point had been having a child out of wedlock – especially given the quality of the witnesses. The Jacobson decision also excluded those laws that lead to “injustice, oppression, or absurd consequence.” The inequities of application across gender or class could have allowed for the Court to find the opposite conclusion under the same precedent. Jacobson also offered an extensive analysis of the scientific basis behind vaccines in order to investigate the basis for concern over public welfare, while Holmes’ decision did not even address the scientific controversies. A closer and honest look at scientific literature of the time may have led Holmes to realize that eugenics posed a more significant threat to public welfare than did Carrie Buck. Holmes also seemed to ignore the most obvious distinction: “It is a broad principle indeed that sustains a needle’s prick in the arm and an abdominal incision…it becomes something else again in terms of the results attained: no smallpox in the one case and no children in the other” (Berns 764). If someone decided not to be vaccinated, the extent of the consequences was a five-dollar fine, which was considered in Jacobson (Cynkar 1458-9). There was no option not to be sterilized in Buck.

These oversights are not surprising given Holmes’ background. He was a prominent eugenicist who generally was compelled by science as a way to manipulate and speed up ‘natural’ progressions (Lombardo 164, Thompson 129). In a major public address, he proclaimed that he desired for science to ‘pass’ from the “combative to the dogmatic stage” and to gain “such catholic acceptance that it shall take control of life and condemn…with instant execution what now is left for nature to destroy” (Larson 124). He also subscribed to Malthusian population theories, arguing that assistance to the poor would lead to overpopulation and a fight over resources (Thompson 129). His commitment to judicial restraint on substantial due process questions could have led him to his opinion in Buck (Cynkar 1446). Holmes’ decisions, though, were often ruled by how well the policy silences unfit ideas. This perspective makes clear the alignment between his stance on free speech and this opinion in Buck, in that both contribute to the marketplace of ideas, one by allowing for debate to crowd out ‘inferior’ speech and the other by forcibly removing ‘stupidity’ (Berry 436).

Butler’s silent dissent on Buck has primarily been attributed to his religious motivations (Thompson 133). This idea was propagated by a letter sent by Holmes, in which he wrote that “Butler knows this is good law…I wonder whether he will…vote with us in spite of his religion” (Larson 125). While many Catholics were against eugenics, it was primarily Christian morality that drove the sanitation and sexual morality movements in support of eugenic policies (Lombardo 46). For instance, Evangelist Billy Sunday gave a widely-attended talk in Manhattan on how he was “tired” of emphasis given to personal liberties in the face of more compelling public interests (“35000 Hear Sunday”). When considering Butler’s motivations in a broader context, then, it is more likely that Butler was compelled by his consistent belief in morality of a law as a necessary consideration of Court decision-making and his commitment to individual freedom and due process (Thompson 138). His acute foresight, however silent, was reflected by the Virginia statute’s eventual repeal in 1974.

Other than Buck v. Bell, there were several opportunities for the Court to take a different stance. The National Council of Catholic Men convinced Whitehead to bring a rehearing via petition, but Whitehead edited the agreed-upon documentation before submission to avoid the possibility that the Court may give it serious consideration. The rehearing came to nothing (Lombardo 179). Two years prior to Buck, Smith v. Command (1925) in Michigan considered a right to bodily integrity (Lombardo 181). In the case, a ‘feebleminded’ 16-year-old sued to contest a court’s order that he be sterilized, a directive issued with his parents’ consent. In its decision, the Michigan Supreme Court added to Buck, writing that the “right to beget children is a…constitutional right,” but that this was overwhelmed by the public welfare (Smith v. Command 142). Ultimately, the order, not the statute, was vacated because statutory due process protections were not followed. Four justices wrote that eugenic theory was not compelling or that sterilization violated ‘bodily integrity’ (Smith 146, 148). The dissent contended that the statute violated equal protection because “Feeble-mindedness…exempts the rich and sterilizes the poor. This is class legislation” (Smith 150-151). Two years before Holmes wrote his decision in Buck, many criticisms of his legal justifications had already been articulated.

Skinner v. Oklahoma (1942) still serves as the only direct Supreme Court test of Buck[ii]. The Oklahoma law ordered compulsory sterilizations of habitual criminals but exempted certain crimes. Considering some of the same issues as Buck, the Court unanimously declared the law unconstitutional. Even so, each opinion refused the opportunity to overturn Buck. Justice Douglas wrote the majority opinion based on an Equal Protection violation, finding that the exemption of some types of crimes was arbitrary (Skinner v. Oklahoma 538-539). He also continued to define marriage and procreation as basic civil rights (Skinner 541). Although Justice Stone’s concurrence went further in its skepticism towards the science behind eugenics, both opinions cited Buck as an appropriate foreclosure on the right of procreation (Skinner 545). Justice Jackson added to both, arguing that “there are limits to the extent to which a…majority may conduct biological experiments at the expense of…a minority…But this Act falls down before reaching this problem…On it, I would also reserve judgment” (Skinner 546-547).

Skinner could have been an opportunity to set aside the trivial equal protection violation (“Constitutionality” 1386). The Oklahoma law had punitive characteristics, so the Court could have evaluated whether sterilization was cruel and unusual (“Constitutionality” 1385). Or, they may have determined whether procedural due process and non-speculative evidence was available when analyzing whether someone’s unborn child would be a criminal (“Constitutionality” 1386). There was also an opportunity to consider the fundamental right to have children or the race, class, or gender based use of sterilization (“Constitutionality” 1387).

Thirty years later, in Cook v. Oregon (1972), the Court ruled that the State had a sufficiently compelling interest in continuing sterilization policies to survive strict scrutiny. Legislatures were preventing murderers, perverts, pyromaniacs, and thieves from plaguing future generations (Leslie-Miller 134). In Stump v. Sparkman (1978), a mother authorized her ‘somewhat retarded’ daughter’s sterilization without informing the patient. The Supreme Court was only able to consider whether the judge who authorized the procedure, despite having approved the petition in error, was granted immunity. Finally, in 1981, Poe v. Lynchburg Training School & Hospital was heard in the US District Court for the Western District of Virginia. The American Civil Liberties Union (ACLU) brought a class action suit challenging the Eugenical Sterilization Act. Many who had been sterilized under the law had never been informed of the procedure and its ramifications (Poe v. Lynchburg Training School & Hospital 792). No monetary damages were requested, although they did demand that sterilizations be ruled unconstitutional (Lombardo 251). The Court determined that the constitutionality of the statute was decided by Buck (Poe 792). The ACLU ultimately settled the case in exchange for a brief and underwhelming educational campaign (Lombardo 254).

While Buck had been decided amidst public support, many later cases went against public consensus. By the 1970s, most Americans were aware of the German eugenics campaign and recognized its similarities to state policies. Early in the Nazi regime, an innocent scientific collaboration with Germany was a source of pride for American eugenicists (“English Attack”, Lombardo 209). The Chief of the Eugenics Research Association even wrote that anti-Nazi propaganda was obscuring the brilliance of their eugenics policy. He warned that “the future will incontestably prove which nations have been the wiser” (Berns 773). As the Holocaust progressed, however, Americans recognized that “in Germany, it was ein Reich, ein Volk, ein Führer, in America Johnson and Popenoe were calling for an ‘Aristo-democracy’. The difference may [have] be[en] one of terminology only” (Berns 774). A smaller international influence was the spread of eugenic ideas to Canada. Alberta and British Columbia passed sterilization acts for inmates about to be discharged, causing over 500 cases to be brought and settled (Lombardo 265).

The legacy of Buck extends to the current political . In Roe v. Wade (1973), the inclusion of marriage and procreation in the right to privacy explicitly excluded the privacy violations ruled on in Buck and Jacobson. Arkansas still permits for involuntary sterilization of incompetents, and as recently as 2007, compulsory sterilization bills have been proposed (Lombardo 275-276). In 2001, the 8th Circuit Court of Appeals ruled coerced sterilization of a disabled woman in Missouri constitutional, citing Buck (Goldstein 6). From 2010 to 2015 in Tennessee, sterilization was used to bargain in plea deals with female defendants, and from the 1990s to 2010 in California, hundreds of female prisoners were sterilized without state approval (Goldstein 1).

Post-Buck, the South had only just begun to pass sterilization legislation. Opposition from religious groups and the popular belief in the cohesive family unit had prevented passage, but with the lobbying momentum from Buck, bills passed (Fletcher 1). Ultimately, the politics driving eugenics led to racist and classist practices in the Deep South such as the Mississippi Appendectomies, leading many women to be sterilized against their will and without their knowledge.

This fight over what may constitute the public welfare that started with Buck may extend into today with the potential for genetic testing in prenatal care and egg selection in the oocyte market (Oberman 383-387). Even if these technologies become the ‘new eugenic sterilization’, it is important to remember that they will not raise the same question of the extent to which liberty includes bodily autonomy from law. They may relate to the right to procreation, but the right of government to regulate selection processes in the oocyte market, for example, may prevent unequal implications like race-based selection rather than enabling them.

By 1938, over 27,000 compulsory sterilizations had been performed in the United States (Thompson 131). By the mid-1960s, not accounting for American contributions to Nazi eugenics policy, this had risen to over 60,000 (Thompson 143). Judicial restraint in Buck v. Bell may have been the most active kind of inaction, making restraint almost illusory. Holmes appeared suspiciously like an activist when he wrote later that he “was getting near to the first principle of real reform” by upholding a state law to sterilize ‘imbeciles’ in Buck (Berry 437). It is easy to argue that Holmes was only using restraint, and that this blemish on the American present “rests more with inept or corrupt counsel…in a set-up case involving a patient who should not have been subject to the procedure under the science of the day, than the Court that followed their lead” (Larson 128). But this begs a question larger than Buck of the Justices in whose intellect we vest the interpretation of our basic political rights: If challenging inept and corrupt counsel is not the responsibility of the Court, even when they are given multiple chances to rule in favor of the Constitution, then on whose shoulders will preventing these casualties fall on when we are faced with a similar challenge again?

[i] More succinctly, “Give me liberty, or give me death!”

[ii] Loving v. VA, although often cited when discussing Buck, was decided via a question of Equal Protection, inapplicable to Buck.

Bibliography

  1.  “35000 Hear Sunday Talk to Men Only”. New York Times, 30 Apr. 1917. Web.
  2. Berns, Walter. “Buck v. Bell: Due Process of Law?” The Western Political Quarterly 6.4 (1953): 762-75. Web.
  3. Berry, Roberta M. “From Involuntary Sterilization to Genetic Enhancement: The Unsettled Legacy of Buck v. Bell.” Notre Dame Journal of Law, Ethics & Public Policy 12.2 (1998): 401-448.
  4. Berry v. Davis. 242 U.S. 468. U.S. Supreme Court. 1917. Rpt. by Justia. Web.
  5. Buck v. Bell. 274 U.S. 200. U.S. Supreme Court. 1927. Rpt. by Justia. Web.
  6. “Constitutionality of State Laws Providing Sterilization for Habitual Criminals.” The Yale Law Journal 51, no. 8 (1942): pp. 1380–1387.
  7. Cynkar, Robert J. “Buck v. Bell: ‘Felt Necessities’ v. Fundamental Values?” Columbia Law Review 81, no. 7 (1981): pp. 1418–1461.
  8. “English Attack on Our Eugenics”. New York Times, 9 Nov. 1913. Web.
  9. Fletcher, John C. “Book Review — Sex, Race, and Science: Eugenics in the Deep South.” New England Journal of Medicine. N.p., n.d. Web. 20 Apr. 2017.
  10. Goldstein, Dana. “Sterilization’s Cruel Inheritance.” New Republic. N.p., 04 Mar. 2016. Web. 20 Apr. 2017.
  11. Gould, Stephen Jay. “Carrie Buck’s Daughter.” Natural History July 1984: n. pag. Print.
  12. Jacobson v. Massachusetts. 197 U.S. 11. U.S. Supreme Court. 1905. Rpt. by Justia. Web.
  13. Larson, Edward J. “Putting Buck v. Bell in Scientific and Historical Context: A Response to Victoria Nourse.” Pepperdine Law Review 39.1 (2011): 119-128.
  14. Leslie-Miller, Jana. “From Bell to Bell – Responsible Reproduction in the Twentieth Century.” Maryland Journal of Contemporary Legal Issues 8.2 (1997): 123-150.
  15. Lombardo, Paul A. Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell. Baltimore: Johns Hopkins UP, 2010. Print.
  16. Oberman, Michelle. “Thirteen Ways of Looking at Buck v. Bell: Thoughts Occasioned by Paul Lombardo’s ‘Three Generations, No Imbeciles.’” Journal of Legal Education 59, no. 3 (2010): pp. 357–392.
  17. Poe v. Lynchburg Training School and Hospital. 518 F. Supp. 789. US District Court for the Western District of Virginia. 1981. Rpt. by Justia. Web.
  18. S. L. “Constitutional Law. Eugenical Sterilization Statutes.” Virginia Law Review 12, no. 5 (1926): pp. 419–422.
  19. Skinner v. Oklahoma. 316 U.S. 535. U.S. Supreme Court. 1942. Rpt. by Justia. Web.
  20. Smith v. Command. 231 Mich. 409. Supreme Court of Michigan. 1925. Web.
  21. State v. Feilen. 70 Wash. 65. Supreme Court of Washington. 1912. Web.
  22. Stump v. Sparkman. 435 U.S. 349. U.S. Supreme Court. 1978. Rpt. by Justia. Web.
  23. Thompson, Phillip. “Silent Protest: A Catholic Justice Dissents in Buck v. Bell.” Catholic Lawyer 43.1 (2004): 125-148.
  24. “Upholds Operating on Feeble-Minded”. New York Times, 3 May. 1927. Web.

Cruel and Unusual History: Exploring the Case Law that Shaped the Eighth Amendment

The American judicial system ensures the continuation of democracy. But the democracy of the American judicial system is entirely dependent on the civil liberties housed in the Bill of Rights. Within the Bill of Rights are special protections for everyone involved in the judicial system, included those who are criminally accused. Everyone is entitled to the right not to incriminate oneself (Fifth Amendment), the right to a fair, speedy public trial and to counsel (Sixth Amendment), the right to be protected from cruel and unusual punishment (Eighth Amendment), and the right to due process (Fourteenth Amendment). The Eighth Amendment is perhaps the most enigmatic clause in the Constitution. This paper will explore how the court interprets such an ambiguous clause and how this has developed over time, specifically exploring its application to capital punishment and to a much lesser extent torture.

In order to analyze how the Eighth Amendment has changed over time, it is necessary to examine the amendment itself. The entirety of the Eighth Amendment reads as such: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”[i] For the purposes of this paper, only the segment  “nor cruel and unusual punishments inflicted” will be examined. The Eighth Amendment on its face is incredibly vague. It contains no definition for “cruel and unusual”, nor any procedure for determining what is and is not “cruel and unusual.” While this is not atypical for constitutional amendments, it is particularly troublesome in the case of the Eighth Amendment because it is not explicitly clear the extent to which the phrase should be interpreted. Torture, for instance, falls into this gray area. Historical context suggests that torture (as an interrogation method, not specifically as a punishment) was considered “cruel and unusual,” but this intention is not necessarily enough to determine if torture is explicitly incompatible with the Eighth Amendment.[ii] Torture was certainly practiced in the U.S. after the enactment of the Eighth Amendment, so even if there was historical context to suggest the Framers intended to outlaw torture, the reality and the lack of enforcement of this clause establishes an alternate precedent. Capital punishment is another issue under the Eighth Amendment. However, more clearly, all evidence suggests that capital punishment was never meant to be outlawed by the Eighth Amendment. But this leads to the question, if executing a criminal is not “cruel and unusual,” what is? Torture and capital punishment are two of the most glaring examples of “cruel and unusual” punishments to a modern reader that were permitted by the constitution and case law for an extended period of time.

For the purposes of this paper, torture and capital punishment must be briefly defined. Torture is the infliction of pain either as a punishment or an interrogative method. While the two are obviously linked, they are legally separate and governed by different laws and precedents. Torture as an interrogative method is governed by the Fifth Amendment, which secures the right to due process and a fair trial. Under the right to a fair trial comes legal procedures for what is constitutional in regards to interrogation; torture as an interrogative method will not be explored in this paper as it does not pertain to the Eighth Amendment. Capital punishment is the government sanctioned execution of a criminal as punishment for their crime. The death penalty is a sentence given by either a judge or a jury after a trial. The method of execution has evolved over time, but it is currently lethal injection. The humaneness and legality of the specific forms of execution will be examined only when pertinent to the development of the “cruel and unusual” clause.

Until Wilkerson v. Utah (1878), there was no case law precedent for the interpretation of “cruel and unusual punishment.” In 1877, Wallace Wilkerson shot and killed William Baxter. He was tried for premeditated murder in a Utah criminal court. Wilkerson was sentenced to death; a Utah statute (passed in 1862) allowed for anyone sentenced to be executed to choose to be shot, hanged, or beheaded. Wilkerson chose to be shot. The case was then appealed on a writ of error to the Supreme Court (as Utah was a territory at the time and its authority not yet clearly defined), who upheld that no error had been made and that Wilkerson’s death sentence and mode of death were constitutional. Justice Nathan Clifford delivered the opinion of the court, in which he explicitly stated “it is safe to affirm that punishments of torture…and all others in the same line of unnecessary cruelty, are forbidden by [the Eighth] amendment to the Constitution.”[iii] This establishes a strong precedent for the application Eighth Amendment. The court is clear in stating that torture and any punishment like it violates the Eighth Amendment. While establishing some type of definition, Clifford still concedes that it is extremely difficult to “define with exactness the extent of the constitutional provision which provides that cruel and unusual punishment shall not be inflicted.”[iv] The court does not offer a clear guideline for how to determine if something is “cruel and unusual,”, but rather admit that because it is impossible because the framers intent cannot be fully determined. Still, they establish that torture as a punishment violates the amendment., but reaffirm that capital punishment does not. Clifford also expressly states that death by shooting “is not included in that category within the meaning of the Eighth Amendment.”[v] In doing so, he references the “unusual” aspect of the Eighth Amendment. Clifford argues that because shooting is a common form of execution for military crimes, it is therefore not an unusual punishment under the Eighth Amendment.[vi] The usualness of a punishment is rarely dealt with under the Eighth Amendment (as methods of execution are typically highly regulated), but Wilkerson lays out a precedent for evaluating it. The commonality of a type of execution therefore determines whether or not it is “unusual”, but this is not without problems of its own. There is not strict guideline for determining commonality besides opinion. Wilkerson may have started to tackle the various issues of the Eighth Amendment, but it is not without its own hypocrisy. As pointed out by Gilbert King in an op-ed for the New York Times, Wilkerson’s death was ironic in light of the precedent his case established. The firing squad did not instantly kill Wilkerson; instead, he slowly bled out over a half hour.[vii] At this time, there was no precedent for whether a prolonged death constituted “cruel and unusual,” but it would more than likely be considered torture.

The issue of prolonged death was quickly remedied in 1890, with the case of In Re Kemmler. William Kemmler was convicted of first degree murder and sentenced to death by electric chair, the first New York citizen to be executed in such a manner. His attorney filed an emergency writ of habeas corpus to stay the execution to examine what he believed to be violations to the Eighth and Fourteenth Amendments. The case traveled through the New York Court of Appeals, after which it was appealed to the Supreme Court on a writ of error. In the opinion, written by Chief Justice Fuller, the court goes into detail about why the state of New York choose electrocution as a method of execution, citing state legislation that found electrocution to be the most humane form of execution. In exploring the idea of a human execution, the court gives a firmer definition of “cruel and unusual”, stating:

“Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the constitution. It implies there something inhuman and barbarous,-something more than the mere extinguishment of life. The courts of New York held that the mode adopted in this instance might be said to be unusual because it was new, but that it could not be assumed to be cruel in the light of the common knowledge which has stamped certain punishments as such”[viii]

This establishes a baseline definition for the term “cruel.” Firstly, the court explicitly states that both torture and lingering death are cruel. The court also sets an important precedent for determining if a punishment is cruel or not. If a punishment can be deemed either “inhumane” or “barbarous” or has a motive that is “something more than the mere extinguishment of life,” then it is cruel. This reiterates the justification for the electric chair being found not cruel, as the court referenced extensive research done that proved its humaneness. The definition of “cruel” is limited in the sense that it in large part deals with capital punishment, due to the phrase “extinguishment of life.” It is also further limited by the adjectives “inhumane” and “barbarous” which, like “cruel”, lack a clear legal definition. Despite declaring torture a form of punishment and developing a cruelty test, the court fails to specifically define “cruel” outside of its relationship to capital punishment. Dealing specifically with capital punishment, the court declares that it does not fit the Constitution’s definition of “cruel.” The court clarifies the Constitution’s meaning of “cruel” as an implication of “something inhumane and barbarous.” This is limited only in the context of capital punishment, being once again limited as beyond “the mere extinguishing of life.” Nor does the court deal with the issue of “unusual”, even though this was the first death by electric chair in the state, making it unusual by definition. Instead, they imply that its humaneness outweighs its unusualness. This, therefore, defines “unusual” as being inhumane. However, as aforementioned, the court rarely deals with “unusual”, and this precedent is barely relied upon. In Re Kemmler marks a landmark in the interpretation of the Eighth Amendment by codifying capital punishment as not “cruel,” and in a limited sense outlawing torture as a form of punishment.

While Wilkerson and Kemmler attempted to set some restrictions on the Eighth Amendment, Weems v. United States used a different method. Instead of attempting to find a universal definition for “cruel and unusual,” the court in Weems embraced the ambiguity of the clause and tried to find a universal approach. In 1910, Paul Weems, who worked for the Bureau of the Coast Guard and Transportation for the United States government in the Philippines, manipulated the cash book by changing employees’ wages so he could profit. He was convicted of fraud and the falsification of public documents in a court in the Philippines. He was sentenced to:

“fifteen years of [shackles], together with the accessories of section 56 of the Penal Code, and to pay affine of 4,000 pesetas, but not to serve imprisonment as a subsidiary punishment in case of his insolvency, on account of the nature of the main penalty, and to pay the costs of this cause.”[ix]

Also in his sentence was hard labor.[x] Weems appealed to the Supreme Court of the Philippines, which held the conviction. He then appealed to the U.S. Supreme Court on several questions, including whether or not fifteen years of imprisonment was “cruel and unusual” and if the extent of the sentence matched the crime. Justice McKenna delivered the court opinion and stated that past cases and applications of the “cruel and unusual” clause have either been in relation to “something inhuman and barbarous – torture and the like” or sentence proportionality with the crime.[xi] He also states that there has never been a case presented to the Supreme Court that demanded an exact definition.[xii] From this, McKenna explores a multitude of cases that previously grappled with the Eighth Amendment. He firstly points out that on its face the Philippine’s punishments violate the Bill of Rights “both in degree and kind,” and that the specific terms of Weems’ punishment (particularly the shackles and hard labor) constitute “cruel and unusual.”[xiii] By doing this, McKenna creates a new basis to explore the Eighth Amendment: public opinion, sentiments and standards. McKenna compared U.S. punishments to punishments in the Philippines and based on this standard ruled that they were cruel and unusual and therefore unconstitutional. As such, the court reversed Weems’ sentencing. McKenna’s opinion establishes a crucial precedent for the Eighth Amendment. In the opinion, he states that the Eighth Amendment “may be therefore progressive, and is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.”[xiv] McKenna crafts a new vision of the Eighth Amendment, one where “cruel and unusual” is determined by public opinion and standards. While this does not invalidate the definitions for “cruel and unusual” established by Wilkerson and Kemmler, the creation of the public standard test solidifies the idea that there is no satisfactory universal definition for the Eighth Amendment.

The Weems precedent played a crucial role as the court grappled with developing the Eighth Amendment throughout the 1970s. McGautha v. California, Furman v. Georgia, and Gregg v. Georgia are three major Supreme Court cases between 1971 and 1976 that exemplified the Eighth Amendment’s contentious nature. In McGautha, two petitioners (one from California, petition No. 203 and one from Ohio, petition No. 204) were both convicted of first-degree murder. No. 203’s sentence was left to the jury and was determined in a separate trial after his conviction. This case was petitioned to the Supreme Court on a writ of certiorari on the grounds that No. 203’s death penalty was determined by the jury without standards, which he claimed was unconstitutional. No. 24’s case was also petitioned on a writ of certiorari because his sentencing and punishment determination were done at the same time (as opposed to bifurcated trials), where the jury once again had absolute control. The legal question for both cases was whether determining conviction and punishment in the same proceeding was constitutional. The court found no constitutional violations and held both convictions and penalties. Justice Harlan delivered the court opinion. He justified absolute jury discretion over punishment and the non-necessity of bifurcated trial.[xv] In his discussion of the petitioners’ claim that full jury discretion was unconstitutional, Harlan, based on historical English Common law, Supreme Court precedent, “and the present limitations of human knowledge, [found] it quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution.”[xvi] McGautha expands on the issue of a lack of definition that the court referenced in Weems and takes it one step further, firmly acknowledging that there cannot be a universal definition. This was a departure from the court’s approach in Wilkerson and Kemmler. The court here is codifying that the “cruel and unusual” clause does not need to have strict legal standards, as opposed to attempting narrowing the phrase. Instead, the court establishes that the Eighth Amendment is to be interpreted on a (quite literally) case-by-case basis. As it originally stood in the Constitution, “cruel and unusual” could develop a definition through case law (as seen with Wilkerson and In Re Kemmler). Now, however, the court essentially invalidates precedent by saying that past cases and “human knowledge” cannot create a universal definition or application for the Eighth Amendment. The court does not acknowledge how the individual cases will be determined, ignoring the Weems precedent. McGautha established that not only did there not need to be specific standards to sentencing someone to capital punishment, but there could not be.

McGautha was overturned one year later in Furman v. Georgia. Furman, like McGautha, was multiple cases combined, all of which were appealed to the Supreme Court on writs of certiorari. The first petitioner (Furman) was robbing a house during the night; after the homeowner awoke, Furman attempted to flee and in doing so either turned around and blindly fired his weapon or tripped and in doing so accidentally fired his weapon, but ultimately killing the homeowner. Both of these stories come from contradicting statements from Furman during his trial. He was convicted of felony robbery and murder and subsequently sentenced to death. The second case, Jackson v. Georgia, involved the petitioner (Lucious Jackson Petr Jr.) attempting to rob a home. He threatened the woman of the house with a pair of scissors, and upon the discovery that there was no money for him to steal, he raped her. He was convicted of felony robbery and rape and sentenced to death. In the last case, Branch v. Texas, Elmer Branch broke into a home, raped the woman who lived there, took the money from her wallet, and fled. He was tried and convicted for rape and sentenced to death. All three petitioners (who, it should be noted, were all African American males) petitioned on the question of whether or not the death penalty violated the “cruel and unusual” clause of the Eighth Amendment. In a per-curiam opinion (again, one year after McGautha), the court stated that, for these three cases, the death penalty violated the Eighth Amendment because of the lack of clear standards and reversed all the decisions. The case was decided by a 5-4 opinion with every single judge writing an opinion. Most of the concurring opinions (no judge joined on another opinion so they all stand individually) use strict scrutiny  to examine the cases before them. Several of the concurring opinions mention the apparent racism in the decisions.[xvii] Both Justices Brennan and Marshall conclude in their concurring opinions that capital punishment on its face is unconstitutional.[xviii] Stewart, however, insists that the decisions must be taken in context within their state’s constitution and precedent (he points out that neither Georgia or Texas have stated that death is the automatic punishment for murder or rape), in order to understand and determine the extent of the seemingly arbitrary nature of the decisions (why were these defendants sentenced to death, but not others who committed the same crimes in the same states?).[xix] He then uses this to argue for the “cruelty” of the punishments, as “they excessively go beyond, not in degrees but in kind, the punishments that the State legislatures have determined to be necessary.”[xx] This establishes a precedent for structure in applying the Eighth Amendment, directly overturning McGautha. The court is now expressing a direct need for some guidelines to govern the application of the death penalty so that it does not constitute Stewart’s definition of “cruel.” From Furman, the court equates “cruel” with arbitrary. The death penalty is determined constitutional only as long as it follows a framework of structure and guidelines for application, which the court could not determine. Since the court never established these guidelines, all capital punishment sentences in the U.S. after Furman were changed to life sentences, until the states and Congress developed new specific legislative guidelines. From 1972 to 1976, no death penalties were carried out in the U.S. because of this de facto moratorium as the court never reaffirmed the constitutionality of the death penalty under specific guidelines.

The impact of Furman goes beyond this halting of executions. In order to truly understand the impact of Furman and explore the evolution of the Eighth Amendment, the varying opinions must be closely examined. Examining the analytical approach of the opinions in Furman illustrate two different ways to understand the Eighth Amendment. Douglas, Stewart, and White argue for an analytic approach, based on how the death penalty is applied and its social consequences.[xxi] The discussion of racial bias and state precedent would fall under the analytical approach. The second approach appears in Justice Marshall’s opinion. Marshall continues the precedent set by Weems and hones the normative approach.[xxii] In his opinion, Marshall asks the question of “whether capital punishment is ‘a punishment no longer consistent with our own self-respect’ and, therefore, violative of the Eighth Amendment.”[xxiii] He reasserts that the Eighth Amendment was intended to “outlaw torture and other cruel punishments” but argues that the application of the clause must be determined by present societal standards.[xxiv] Marshall limits this, however, by qualifying the punishments that can be considered constitutional under public opinion. Punishments of torture, he says, will always be outlawed by the Eighth Amendment, even if public opinion were ever to say they were acceptable.[xxv] This lays the foundation for his exploration of capital punishment as an excessive punishment (excessive punishment in this case is equal to “cruel and unusual”) according to modern standards, arguing that it is therefore unconstitutional. He concludes that it is based on modern concepts of retribution, deterrence, prevention, and “encouraging guilty pleas and confessions, eugenics, and reducing state expenditures” (these last three he deals with together).[xxvi] He also recognizes a lack of national understanding of capital punishment and the effect that lack of knowledge has on societal opinion. Marshall’s opinion revitalizes and reinvigorates the Eighth Amendment. He establishes a clear and concise test to determine what constitutes “cruel and unusual.” He embraces the ambiguity of the Eighth Amendment and develops a solution that gives it some clarity.

Marshall’s test had a major effect on the follow up case to Furman, Gregg v. Georgia. In 1976, five cases were decided by the Supreme Court that reaffirmed the constitutionality of the death penalty. Instead of delving into the factual details of these cases, just the procedural posture will be examined. Georgia, Florida, Texas, North Carolina, and Louisiana (listed in this format to reflect the order of the full case name), all changed their statutes and legislation to establish strict guidelines for the sentencing of the death penalty in compliance with Furman. Changes included the necessity of a bifurcated trial and specific guidelines for determining if a case is eligible to receive the death penalty. For each petitioners’ case, they were tried and sentenced to death as complying with the new guidelines of their state. They all appealed on the grounds that capital punishment violated the Eighth Amendment on writs of certiorari. In a 7-2 decision, the Supreme Court maintained the death sentences of the petitioners from Georgia, Texas, and Florida, because their state guidelines for deciding capital punishment were constitutional. The decisions for North Carolina and Louisiana were reversed on the grounds that their state legislations were constitutionally insufficient. The plurality opinion, written by Stewart, establishes several major rules for the Eighth Amendment. Firstly, the Supreme Court officially codified capital punishment as constitutional.[xxvii] Stewart additionally gives another definition of the Eighth Amendment, stating:

“The Eighth Amendment, which has been interpreted in a flexible and dynamic manner to accord with evolving standards of decency, forbids the use of punishment that is ‘excessive’ either because it involves the unnecessary and wanton infliction of pain or because it is grossly disproportionate to the severity of the crime.”[xxviii]

This definition of the Eight Amendment echoes Kemmler. Stewart expands on this precedent, however, by referring to punishments under the Eighth Amendment in general, instead of in direct relation to capital punishment like in Kemmler. He also crucially links proportionality to the Eighth Amendment, which was referenced in Weems and Furman but never firmly expressed.

Secondly, Stewart carries on the normative approach as established by Marshall in his Furman opinion. The “standard of decency” test echoes Marshall’s approach. However, Stewart provides no guidelines for how this standard should be reached. He also does not explain what the current standard of decency is or how the codifying of capital punishment fits into it. In Brennan’s dissenting opinion, he references Stewart’s “standard of decency” definition and argues that the modern and current standard of decency is that the death penalty be abolished.[xxix] Marshall, in his dissent, does this as well, referencing his Furman opinion where he argued for the unconstitutionality of the death penalty. He makes it clear that he is dissenting on the basis of the upholding of the death penalty, not the court’s methodology. Marshall’s argument focuses on what he believes to be inaccurate conclusions the majority reached in their opinion that justified capital punishment, such as retribution. Despite the contradictory conclusions reached by the majority and the two dissenting judges, Gregg represents the first successful application of the normative approach to the Eighth Amendment. Both the majority and the dissenting justices used this process to reach their conclusions. This marks a solid and definite change in the court’s interpretation of the Eighth Amendment: there can be no universal definition of the Eighth Amendment, but public opinion, standards and sentiments can be used to give it a definition on a strictly (and quite literally) case by case basis.

Gregg not only affirms the death penalty but also codifies how the death penalty should be determined. Stewart echoes Furman by stating that in order to curtail the seemingly arbitrary nature of the death penalty, there need to be statutes, and echoing Marshall and Weems by saying this should be done through public standard.[xxx] He establishes the constitutionality of the Georgia, Florida, and Texas statutes, therefore providing the guidelines for other States in the drafting of their legislation. He references the Georgia statute, emphasizing that there “must be specific jury [findings]as to the circumstance of the crime or the character of the defendant” in order to give the death penalty, as well as the necessity of State Supreme Court review.[xxxi] In his concurring opinion, White also crucially notes that prosecutors will be held to the same standards as a jury in deciding to charge a capital felony.[xxxii] Consequently, the Supreme Court ruling that the death penalty is constitutional within certain parameters lifted the implied ban on capital punishment from Furman. Gregg provided relief for the ambiguity created by Furman, allowing death penalties to continue in the U.S. Most importantly, Gregg established the basis for the death penalty, and created a background for following death penalty cases to be decided against. Subsequent capital punishment cases fleshed out, based on public opinion, certain specifics regarding the death penalty.

One example worth looking at is the death penalty as it relates to minors. Wilkins v. Missouri and Stanford v. Kentucky, decided together in 1989, set the precedent that it was not “cruel and unusual” to execute minors under the Eighth Amendment. The majority opinion, written by Justice Scalia, argued that the standard of decency was ambiguous about the execution of minors (ages 16 and 17 specifically), and therefore it must be left up to state legislation to determine constitutionality; both the cases presented were in states where there was legislation allowing the execution of minors.[xxxiii] This case came one year after Thompson v. Oklahoma, which decided that the execution of minors was unconstitutional.[xxxiv] In 2005, Roper v. Simmons reversed Wilkins and Stanford and reaffirmed Thompson. The court applied the standard of decency test to the same evidence (state legislation) and reached the opposite conclusion: that the execution of minors was in fact “cruel and unusual.”[xxxv] This back and forth in regards to the execution of minors reveals several things. Firstly, how amenable the Eighth Amendment remains even though it is limited by a test. Secondly, how the Marshall test works in context (how the justices prove “standard decency” and public opinion). Third, even this test, as empirical as it is, is incredibly flawed. It does not allow the Court to establish long term precedents; in order to maintain constitutionality, the Supreme Court would have to frequently review each decision made in relation to the death penalty. Lastly, it shows that the normative approach is firm. In the three cases presented above, the Marshall test held fast and produced an answer.

So how has the court developed the Eighth Amendment over time? Arguably, it did not. Instead the court has continuously reinforced the idea that there will never be a satisfactory, unchanging universal definition. The court followed established precedents up until Furman, when it (for the first time) recognized the broadness of the Eighth Amendment as a weakness and affirmed capital punishment. They have also relied heavily upon the Framer’s context for the Eighth Amendment and take its anti-torture message on its face. Unlike other clauses (such as the Fourth) where the actual meaning of space and privacy have been debated, there is no such debate for the Eighth Amendment. Its interpretation is essentially fixed. What the court developed instead was its approach. From Weems to Furman and Gregg the court honed the normative approach to the Eighth Amendment. This gives “cruel and unusual” a momentary, fleeting definition, allowing the court to come to a constitutional decision. An issue with this test is the possibility of reaching a standard decency that morally violates “cruel and unusual,” for instance, exploring the possibility of executing a pregnant woman. It can hardly be argued that executing a pregnant woman would violate the framer’s intent of “cruel and unusual.” At that point, the court will have to resolve the issue of precedent: is the Framers intent greater than the current standard of decency? If so, does this mean there is a universal and satisfactory definition of cruel and unusual? Exploring an example such as the pregnant woman shows that while the court has reached an acceptable (and seemingly unwavering approach), the Eighth Amendment, more so than any other clause, is locked in an eternal battle between intent and societal standards.

[i] U.S. Constitution. Amend VIII

[ii] Celia Rumann, Tortured History: Finding Our Way Back to the Lost Origins of the Eighth Amendment, 31.3 Pepp. L. Rev. 661, 708 (2004).

[iii] Wilkerson v. State of Utah, 99 U.S. 130, 136, 25 L. Ed. 345 (1878)

[iv] Ibid., Wilkerson v. State of Utah.

[v] Ibid., Wilkerson v. State of Utah.

[vi] Ibid., Wilkerson v. State of Utah.

[vii] Gilbert King, “Cruel and Unusual History,” The New York Times. April 23, 2008. Accessed April 27, 2017 http://www.nytimes.com/2008/04/23/opinion/23king.html

[viii] In Re Kemmler, 136 U.S. 436, 438 10 S. Ct. 930, 933, 34 L. Ed. 519 (1890).

[ix] Weems v. United States, 217 U.S. 359 (1910)

[x] Ibid., Weems v. United States.

[xi] Ibid., Weems v. United States.

[xii] Ibid., Weems v. United States.

[xiii] Ibid., Weems v. United States.

[xiv] Ibid., Weems v. United States.

[xv] McGautha v. California, 402 U.S. 183 (1971)

[xvi] Ibid., McGautha v. California.

[xvii] Furman v. Georgia. 408 U.S. 238 (1972)

[xviii] Ibid., Furman v. Georgia.

[xix] Ibid., Furman v. Georgia.

[xx] Ibid., Furman v. Georgia.

[xxi] Austin Sarat; Neil Vidmar, Public Opinion, the Death Penalty, and the Eighth Amendment: Testing the Marshall Hypothesis, 1976.1 Wis. L. Rev. 171, 206 (1976), pages 172-173.

[xxii] Ibid., 173.

[xxiii] Furman v. Georgia. 408 U.S. 238 (1972)

[xxiv] Ibid., Furman v. Georgia.

[xxv] Ibid., Furman v. Georgia.

[xxvi] Ibid., Furman v. Georgia.

[xxvii] Gregg v. Georgia, 428 U.S. 153 (1976)

[xxviii] Ibid., Gregg v. Georgia.

[xxix] Ibid., Gregg v. Georgia.

[xxx] Ibid., Gregg v. Georgia.

[xxxi] Ibid., Gregg v. Georgia.

[xxxii] Ibid., Gregg v. Georgia.

[xxxiii] Stanford v. Kentucky. 492 U.S. 361 (1989)

[xxxiv] Thompson v. Oklahoma. 487 U.S. 815 (1988)

[xxxv] Roper v. Simmons. 543 U.S. 551 (2005)

 

Bibliography

  1. Furman v. Georgia. 408 U.S. 238 (1972)
  2. Gregg v. Georgia, 428 U.S. 153 (1976)
  3. In Re Kemmler, 136 U.S. 436, 438 10 S. Ct. 930, 933, 34 L. Ed. 519 (1890).
  4. King, Gilbert. “Cruel and Unusual History.” The New York Times. April 23, 2008. Accessed April 27, 2017 http://www.nytimes.com/2008/04/23/opinion/23king.html
  5. McGautha v. California, 402 U.S. 183 (1971)
  6. Roper v. Simmons. 543 U.S. 551 (2005)
  7. Rumann, Celia. Tortured History: Finding Our Way Back to the Lost Origins of the Eighth Amendment. 31.3 Pepp. L. Rev. 661, 708 (2004).
  8. Sarat, Austin; Vidmar, Neil. Public Opinion, the Death Penalty, and the Eighth Amendment: Testing the Marshall Hypothesis. 1976.1 Wis. L. Rev. 171, 206 (1976).
  9. Stanford v. Kentucky. 492 U.S. 361 (1989)
  10. Thompson v. Oklahoma. 487 U.S. 815 (1988)
  11. S. Constitution. Amend VIII. https://www.law.cornell.edu/constitution/eighth_amendment
  12. Weems v. United States, 217 U.S. 359 (1910)
  13. Wilkerson v. State of Utah, 99 U.S. 130, 136, 25 L. Ed. 345 (1878)

Political Offenses in Extradition Law and the Case of Edward Snowden

In an increasingly globalized world, international law is playing a larger role in mediating transnational criminal justice. Extradition law, in particular, presents a venue through which states can negotiate the transfer of criminals and enter into treaties that provide for reciprocity and legal structure. This essay will engage with a brief history of general extradition law and a comparative approach to the area of political offenses. Then it will introduce the case of Edward Snowden, a former technical contractor for the United States government and whistle-blower who leaked classified information from the National Security Agency to the public in 2013, to show the complications of the political offense exception in extradition law.

First, a logistical note. Some legal scholars classify any exchange of criminals as extradition whether that exchange occurs on an international or inter-state level. This lack of clarity, however, presents some difficulty to readers who are unaware of the difference. A term that more precisely describes the transfer of fugitives from one state to another in a federal system would be interstate rendition, not international extradition. International extradition is akin to a contract between two parties (being the nations), with a subject matter (being the delivery of the criminal) and a mutual consideration (being the repression of crime).[1] To understand how the current international extradition regime developed, a short overview of extradition history would be useful. The concept of extradition can be traced back to 1258 B.C., when the ancient Egyptians and Hittites entered into the first known extradition agreement. Ancient Greek and Roman city-states also used extradition agreements, relying on noxae deditio, the notion that “[a] state that harbored a foreign criminal was considered to be poisoned or tainted by the presence of that individual, and could be held liable for that criminal’s actions.”[2] Later in history, during the early modern period, a global legal order ius commune provided early principles for transnational criminal justice such as compensatory prosecution and aut dedere aut judiciare (the legal obligation to extradite).[3]

Under The Law of Nations, which is a work of political philosophy published in 1758 that modernized international law, sovereign states should ideally refuse asylum to accused criminals pursued by another state. Today, extradition represents an avenue through which criminals can be prosecuted across boundaries. The process ensures “that fugitives from justice shall not, by flight from the jurisdiction of the laws which they have violated, be protected against arrest in the country to which they have fled, and that, upon proper evidence of their guilt, they shall be returned to that jurisdiction for trial and punishment.”[4] With globalization and advances in communication methods and transportation technology,[5] modern extradition often results from “mutual comity and convenience,” but requires a special compact, such as a treaty, to assert the weight of international law.[6] For instance, courts in the United States have ruled unanimously that there is no obligation to arrest, detain, or deliver[7] a criminal unless treaty stipulations exist.[8] However, among modern countries, the ideas of international law and moral rights have “fictitious dignity” because these principles are practically unenforceable.[9]

Governments comply with extradition treaties for a variety of reasons even though international law is not practically binding or mandatory; governments which have binding compacts would experience political repercussions and strains in international relations if the compact were not honored. There are several theories that attempt to explain why governments enforce extradition. Two main competing paradigms for interpreting international relations are divided into different schools of thought: Machiavellian and Grotian.[10] For Machiavellians, a cooperative international community bound by common values, rules, and institutions does not exist; instead, states are motivated by self-interest. There are no moral rules restraining state interactions and there is no universal concept of crime.[11] The pessimistic, Machiavellian framework discounts the “good faith” paradigm for enforcing international regulations and so governments operating under this framework would discount the legitimacy of extradition procedure altogether. For Grotians, however, all humans share a concern for the suppression of crime based on civitas maxima, which is the idea that all humans are bound by a sort of universal social contract. Under this theory, sovereign nations surrender fugitive criminals through extradition because they share the “common interest of civilised communities,”[12] which includes a civilized state’s duties to protect its own citizens from dangerous persons and to promote friendly relations with other countries.[13] Similarly, Kantian thought explains interstate collaboration based on the idea of a cooperative, collective “society of states.”[14] These theories offer some insight in explaining state behavior. Because there are different explanations for why states legally enforce international treaties and provisions, there are opportunities for change and variation in application.

Bilateral treaties for extradition vary in content and purpose, though they are usually characterized by general principles and procedures such as reciprocal rights and duties, enumeration and specification of extraditable offenses, the rule of evidence, and the process of surrender.[15] Multilateral conventions and national extradition acts often include special provisions for limitations on the age of the crime and for scenarios where there is an extradition demand by two or more countries. Traditionally, extradition treaties create provisions for the protection of individual rights in three distinct areas: the political offense exception, the rule of double criminality, and the principle of specialty.[16] The political offense exception protects the right to protest government action and engage in activism for political change; the rule of double criminality provides that an extradition cannot occur unless the crime charged is an offense in both the demanding state and the extraditing state; the rule of specialty commands that the extradited individual does not have to answer to any prior crimes other than the specific crime for which she is extradited.[17] On the surface, extradition treaties seem to provide for simple and plausible surrender procedures. In practice, however, these treaties are often negated by constitutional safeguards in the criminal laws of the countries that agree to them.[18] Some factors that can frustrate the formal process include, a “risk that extradition targets will be alerted to the request giving them time to flee; the host state may not possess an effective police force and so may not be capable of locating persons within its borders; the foreign government may simply be reluctant to comply with extradition requests or extradition may be barred by the non-fulfilment of a formality in the treaty.”[19] Moreover, these general principles and procedures in extradition treaties are often up to the interpretation of the countries which have signed the agreement. Especially when it comes to the area of individual rights protections, different countries can read treaty stipulations differently, or not comply with the language at all, without facing harsh consequences. Existing supranational organizations, such as the United Nations which governs international affairs, do not have the effectual authority or the power to enforce compliance with a particular reading of the treaty, and can only issue non-binding opinion statements.

Within the body of extradition law, there exists a doctrine protecting individual rights which is frequently interpreted variably and subjectively: the political offense exception. This exception dictates that countries should not extradite criminals if their crime is political in nature. Though many countries adopt a rule of non-inquiry, under which “courts may not examine the requesting country’s justice system or human rights record in determining whether to extradite an individual out of respect and courtesy,”[20] the idea behind the political offense exception acknowledges that governments are concerned that “an individual would be subjected to an unfair trial or inhuman treatment if extradited to the requesting State for committing a political offense.”[21] Despite the fact that, ideally, “[e]xtradition pronounces no judgment upon the laws of other countries, and exercises no judicial power in the trial of criminals, or the administration of punishment,”[22] political offenses represent a limitation on the surrender of fugitives because there exists a need for the two participating states’ laws to be alike. If the laws are dissimilar, then “the political sinner of one State may be the political saint of another.”[23] As a general principle “if the offense with which the fugitive is charged or of which he has been convicted is of a political nature (e.g. treason or sedition), he is not to be surrendered.”[24]

The political offense exception has been quite an unclear and murky doctrine of extradition law, especially since conventions and laws refer to political offenses without defining them. Many times, states do not agree on what constitutes a political offense. Different countries have different interpretations of how they handle political offenses. In extradition, the term has been interpreted to split into two categories of offenses: first, “purely” political offenses are against the political organization or government of a state, injuring public rights, and containing no common crime element, e.g. a tweet criticizing the president; second, “relative” political offenses are offenses in which a common crime is either implicit in or connected with a political act, e.g. someone vandalizing a government building.[25] While most countries agree that political offenders of the first category ought not be extradited, the uncertainty that lies mostly in the second category causes countries to disagree on whether to extradite.[26]

Different countries explain the political offense exception differently. Tribunals in Switzerland often consider offenses on a case-by-case basis rather than creating a general rule as to when an offense should be considered “predominately common or predominantly political.”[27] Using three principles—purpose, direct connection, and level of atrocity—the tribunals can determine the predominately political character of an offense.[28] For example, if the level of atrocity is too heinous, the nature of the crime outweighs the political offense exception. Belgium’s system, on the other hand, is less standardized and allows the courts greater freedom and flexibility in interpreting what constitutes a political offense, though they also subscribe to the theory of predominance. The French distinguish between political and social crimes; the former are committed against a government, the latter, against society, e.g. gambling, prostitution, and drug abuse.[29] Germany classifies offenses into common offenses and political offenses, for which asylum was universally recognized.[30] Since different countries have different interpretations of what constitutes a political offense, the political offense exception remains undefined and unclear.

Different time periods have wound up influencing how the political offense exception is handled as well. For instance, during the French Revolution, the king viewed political offenses as prosecutable and political exile as a viable strategy to reinforce his power because the French press spread news, propaganda, and conspiracies across borders and increased the likelihood of international insurrection, transnational political subversion, and transnational political crime.[31] He saw these trends in the press as threatening since they opened avenues of cooperation and information-sharing conducive to political dissent and subversion. Instead of a legal institution, extradition was an arbitrary power of kings to suppress and punish dissenters. In addition, the Russian government, from 1800 to 1825, rejected the doctrine of political asylum and attempted to force smaller states to extradite political offenders to Russian jurisdiction.[32] However, after World War II, the Soviet Union relied on “administrative rather than political channels of cooperation.”[33] As the dynastic system yielded to constitutionalism, extradition shifted from a political matter to a judicial one.[34] While extradition has a more uniform structure today than it did earlier in history, the political offense exception remains up to interpretation by the countries participating in the exchange of criminals. The situation becomes increasingly complicated if the two countries do not have an extradition agreement.

The United States and Russia do not currently have a bilateral extradition treaty.[35] The two countries likely do not have a treaty due to the tensions rising from the Cold War, the War on Terror, and the Ukraine crisis. Throughout their history, the United States-Russia relationship has fluctuated between amicable and hostile. During the existence of the U.S.S.R., the U.S. Senate entered into a mutual extradition treaty to prosecute potential assassins but it was heavily protested by American citizens. Though the politically unfavorable treaty was never formally terminated, neither government recognized an enforceable agreement and its stipulations were ignored despite the legal obligation.[36] Indeed, “[w]ithout an extradition treaty, the argument to extradite a suspect in order to face charges in another country becomes a political, as opposed to a legal, issue.”[37] However, Russia has increased its interest in forming extradition treaties with the U.S. since Russian nationals have been intercepted in countries that have extradition agreements with the U.S., which transfer the Russian criminals to American jurisdiction.[38] Russia wishes to have a more even-footed exchange of criminals with the United States since the Russian government itself does not have the same number of treaties with other countries as the U.S. does. So, Russia and the U.S. entered into the 1999 Treaty on Assistance in Criminal Matter; however, “the terms of that arrangement do not call for unequivocal extradition but rather simply assistance in legal matters abroad.”[39]

When Edward Snowden, a whistle-blower who leaked classified U.S. National Security Agency documents to journalists, sought asylum in Russia, the implications of his actions provided an example for how the political offense exception would be applied. Snowden was charged as a felon for stealing government property and giving classified intelligence data to unauthorized persons, namely representatives at the Washington Post and The Guardian newspapers. He uncovered the NSA’s surveillance of citizen cell phones, media, and emails and international spying, which makes him a “relative” political offender. The United States revoked his passport, blocked asylum requests in Latin America (arguably violating customary international law), and is actively seeking Snowden’s capture.[40] The Snowden affair became an international issue since he was classified as a political offender. The parliament of the European Union voted to call its member nations to grant Edward Snowden asylum because of the political nature of his crime in a non-legally binding resolution, which simply pushes the issue to all E.U. member nations. The vote itself does not grant Snowden any protections, but it does ask the E.U. to drop extradition charges against the exiled American because he is an “international human rights defender.”[41] Similar support has been extended to political offenders in the past –  “the moment a national boundary line [was] crossed… [t]he criminal bec[ame] an object of special consideration, if not of sympathy.”[42] The fugitive could plea for the human right of asylum, which is granted under Article 14 of the Universal Declaration of Human Rights.[43] Despite the political display in Europe, however, the U.S. State Department’s stance on Snowden’s status remains the same—he needs to return to the United States and face the judicial process.[44] The United States requested that Russia deny Snowden’s application for temporary asylum and extradite him to the United States for prosecution under the Espionage Act. If Snowden had stayed in Hong Kong, the United States would have had an extradition treaty to enforce capture without Russian assistance.[45] However, as it is, Russia denied the U.S. demand under the Obama administration since no treaty exists and has further stated “it will continue to extend asylum protections to Snowden and will not send him back home.”[46] After Snowden waited in a legal limbo, stranded in the transit zone at the Shermetyevo Airport in Moscow for a month, Russia granted him asylum.

The Snowden case shows how politically volatile the handling of the political offense exception is in the realm of international extradition law. U.S. intelligence sources have obtained information that says Russia may extradite Snowden as a gift to win favor with President Donald Trump, who has described Snowden in the past to be a traitor who should be executed.[47] The charges against Snowden by the Justice Department could bring a sentence of thirty years in prison under the 1917 Espionage Act. Unlike U.S. Army leaker Chelsea Manning, Snowden was not granted commutations by former President Barack Obama on his way out of office.[48] President Donald Trump is not expected to take a softer approach. Nevertheless, commentators have noted that Edward Snowden’s extradition to the U.S. is impossible on “legal and moral” grounds for the simple reason that there is no agreement for mutual extradition.[49] At the end of five years, Snowden could even apply for Russian citizenship. The Snowden case thus shows how the political offense exception is heavily influenced by a number of factors: the presence of an extradition treaty, international political relations, public opinion, and changes in government administrations.

Political offenses in international extradition law represent an important exception to agreements of mutual assistance. The exception attempts to skirt the murky territory of political crimes which may be received differently in different countries. This lack of uniformity makes it difficult to prosecute or pursue political dissidents. In the case of Edward Snowden, the intricacies of the political offense exception are obvious. While extradition seems an unlikely prospect in his case, international law attempts to impose the normative measures of what ought to happen. Governments are beginning to rely on methods of international law enforcement other than extradition for political offenses; namely, judicial assistance, treaties for the exchange of prisoners, and administrative arrangements for deportation or extra-territorial prosecution.[50] Perhaps these venues will be more fruitful to resolve the case of Edward Snowden and to clarify the uncertainty of the political offense exception.

[1] Chartres Biron and Kenneth Chalmers, The Law and Practice of Extradition (London: Steven and Sons, 1903), p. 3.

[2] William C. Herrington, “‘Snowed In’ in Russia: A Historical Analysis of American and Russian Extradition and How the Snowden Saga Might Impact the Future,” Journal of Law & Policy 48 (2015): p. 322.

[3] Karl Harter, “Security and Cross-Border Political Crime: The Formation of Transnational Security Regimes in the 18th and 19th Century Europe,” Historische Sozialforschung 38, no. 1 (2013): p. 98-99.

[4] Samuel T. Spear, Law of Extradition (Albany: Weed, Parsons & Company, 1884), p. 40.

[5] Biron & Chalmers, p. 2.

[6] Spear, p. 3.

[7] Ibid., p. 31.

[8] Ibid., p. 10.

[9] Biron & Chalmers, p. 3.

[10] Helen McDermott, “The Structure of International Cooperation in the Transfer of Suspects. Extradite or Abduct?,” International Criminal Law Review 15, no. 2 (2015): p. 254-297.

[11] Ibid., p. 254-297.

[12] Biron, p. 1.

[13] Ibid., p. 1-2.

[14] McDermott, p. 254-297.

[15] Spear, p. 43-46.

[16] Abbey G. Moffitt, “A Place for Snowden: U.S.-Russian Extradition Relations & Benefits of a Future Partnership,” Transnational Law & Contemporary Problems 24, no. 1, (December 2014): p. 249.

[17] Ibid., p. 249-50.

[18] Igor I. Kavass, eds. Adolf Sprudzs, International Journal of Law Libraries Vol. 9, No. 5, Chicago: The University of Chicago, (1981) p. 231.

[19] McDermott, p. 254-297.

[20] Herrington, p. 325.

[21] Ibid., p. 325.

[22] Spear, p. 40.

[23] Biron, p. 11.

[24] John Bassett Moore, “The Difficulties of Extradition,” Proceedings of the Academy of Political Science in the City of New York 1, no. 4 (1911): 631.

[25] Lora L. Deere, “Political Offenses in the Law and Practice of Extradition,” The American Journal of International Law 27, No. 2 (1993) p. 248.

[26] Ibid., p. 248.

[27] Ibid., p. 257.

[28] Ibid., p. 258.

[29] Ibid., p. 262.

[30] Ibid., p. 264.

[31] Harter, p. 99.

[32] Moffitt, p. 253.

[33] Ibid., p. 254.

[34] Harter, p. 249.

[35] Moffitt, p. 243

[36] Ibid., p. 251.

[37] Ibid., p. 267.

[38] Ibid., p. 260.

[39] Ibid., p. 244.

[40] Ibid., p. 246.

[41] Andrew Husband, “EU Wants to Grant Edward Snowden Protection Against Extradition,” Newstex Trade & Industry Blogs, Chatham: Newstex, October 30, 2015.

[42] Moore, p. 625.

[43] Universal Declaration of Human Rights, General Assembly Resolution 217, U.N. Document, 10 December 1948.

[44] Husband, p. 1.

[45] Ibid., p. 245.

[46] Moffitt, p. 247.

[47] Jeff John Roberts, “Snowden May Return to U.S. as “Gift” from Russia, Report Says,” Fortune, February 11, 2017.

[48] Lydia O’Neal, “Will Edward Snowden Go To Jail? US Indicts A Former NSA Contractor For Violating Espionage Act,” International Business Times, February 8, 2017.

[49] Brendan McDermid, “Moscow has no legal, moral reasons to extradite Snowden – Russia envoy to US,” Reuters, October 12, 2016.

[50] Kavass, p. 231.

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