Psychiatric Disorders and the Americans with Disabilities Act: Reducing the Stigma of Mental Illness in the Workplace

“There is a big problem between what the law states in terms of discrimination and the reality in the workplace,” stated Alison Gibbs, a senior policy officer for Mind. “We recently conducted a poll where a great number of people reported being discriminated against [because of] mental illness – people being demoted, refused promotion, or having job offers withdrawn after having disclosed a mental health problem.”[1] Even though the Americans with Disabilities Act (ADA) prevents people with mental illnesses from being discriminated against in the workplace, it happens every day. In fact, a survey of over 1300 people with mental illnesses found that 25% of them felt like they were discriminated against or avoided. This percentage was higher in industries such as law, banking, and insurance.[2] While the guidelines regarding mental illness in the workplace are clear, there are still many differences on how employees are treated based on their particular mental illness and the stigma that surrounds it; consequently, employment discrimination on the basis of disability disproportionately affects people with mental illnesses and psychiatric disorders.

A disability is a physical or mental impairment that substantially limits one or more major life activities as stated in the ADA. Employees or job applicants who have a mental illness that fits the ADA criteria are afforded legal protections against discrimination. These protections include the right to privacy, prohibition of differential treatment of disabled employees, and being provided an accommodation that does not create undue hardship for the employer.[3] However, employers do not have to hire people who cannot perform the job with a reasonable accommodation or whose mental illness poses a direct threat or safety risk. According to the Equal Employment Opportunity Commission (EEOC), which is the federal agency that enforces civil rights laws against workplace discrimination, the employer must have objective evidence of inability to perform job duties without relying on myths or stereotypes about mental health conditions.[4]

One case that dealt with the issue of an employer relying on myths about mental illness is Equal Employment Opportunity Commission v. Cottonwood Financial. A bipolar employee was fired from Cottonwood Financial in Washington State for requesting two weeks of leave following a mental breakdown. In the subsequent lawsuit, the Washington District Court ruled that the employer violated both the ADA and the Washington Law Against Discrimination. The Court noted that Cottonwood Financial’s multiple reasons for terminating the employee were based on discriminatory practices. The employee was awarded back wage and compensation for pain and suffering. In addition, Cottonwood Financial was mandated by the court to train personnel about anti-discrimination laws and compliance. William Tamayo, an EEOC attorney, said, “The court sent an important message today that employers can’t substitute fiction for facts when making employment decisions about disabled workers. Employers acting on outdated myths and fears about disabilities need to know that the EEOC will not shy away from taking ADA cases to trial to bring them into the 21st century.”[5] This case shows that discrimination due to the stigma surrounding mental illnesses such as bipolar disorder is not tolerated and that employers who do not provide reasonable accommodations will face legal consequences.

Mental illness is a common disability in the workplace. About 18% of workers in the United States, or 44 million adults, have stated that they live with a mental illness.3 Mental illnesses are diagnosed by psychologists and psychiatrists in accordance with the Diagnostic and Statistical Manual of Mental Disorders, more commonly known as DSM-5, the universal code for diagnosis of psychiatric disorders.[6] These disorders vary, and the National Institutes of Health estimates that of these people, 18% have an anxiety disorder, 9.5% have depression, 4% have ADHD, 2.6% have bipolar disorder, and 1% have schizophrenia.[7] Each type of mental illness positions itself differently in the workplace. As a result, the accommodations required vary. An employer must take this into account when thinking about how to provide employee accommodations. For example, a person with post-traumatic stress disorder (PTSD), which affects someone who has experienced a shocking, scary, or dangerous event,[8] may need accommodations such as a quiet space to work, flexible scheduling, or the presence of an emotional support animal.3 A different mental disorder, such as obsessive compulsive disorder (OCD), which drives someone to perform repetitive actions,[9] will require a different set of accommodations. These could include dividing assignments into smaller tasks, use of a checklist, or scheduled meetings with a supervisor to discuss job duties and work progress.3 These examples of accommodations are some that have been upheld as reasonable by the EEOC and the court system.

An employee must decide whether or not to disclose a psychiatric disability to the employer; if the choice is made to do so, what is the appropriate time to make a disclosure? The United States Department of Labor has developed some recommendations for youth with mental illnesses who are searching for their first jobs. There is no particular time during the employment process that is perfect for disclosing a disability, but an informed choice should be made about the appropriate step in which to make the disclosure. Those who opt for disclosure might do so during an interview, after receiving a job offer, or after beginning a job. In addition, disclosure of mental illness should be on a need-to-know basis and reasoning for disclosure should be mentioned as well. Overall, the most important things in this process are to be truthful and proactive.[10]

The EEOC has created guidelines for both employees and employers on how to handle mental illness disclosure and develop a plan that can benefit all parties. Employees with mental health conditions should begin by evaluating their illness with respect to their job and how it will affect their performance. They should ask themselves whether or not they can perform the job duties without any accommodations, and if not, what types of accommodations they should ask for. The employee should also be sure to ask for something specific and focus on the limitations of the mental illness rather than the specific diagnosis and symptoms. The information that the employee provides should focus on how specific job tasks may be impacted by his or her mental illness. Following these suggestions can ensure a more streamlined work experience for the employee.4

There are also several things that employers can do to make sure that an employee with a mental illness can be productive and perform appropriately. This is important because approximately 1 in 5 current employees work with a psychiatric disability. One thing that an employer can do is provide trainings to managers and supervisors that teach them to be receptive and respectful to people with disabilities. Often times, managers and supervisors are some of the first people an employee will approach when requesting an accommodation, and it is important to make sure that these people set the tone for disability inclusiveness. Another thing that employers can do is create a disability support group for employees who struggle with psychiatric disorders. This could be something as simple as the whole group having lunch together once a month, but it can be an avenue for people with mental illnesses to talk about their challenges in the workplace. Most importantly, an employer needs to think about building an environment of trust by making sure that there is no harassment or bullying, and that employees with mental illnesses are heard and helped when needed. These measures can help to ensure that employee talent is fully leveraged in the workplace.4

However, there are some barriers to employers fully embracing and accommodating people with mental illnesses in the workplace. One significant barrier is the stigma that surrounds mental illnesses and impairments. In a study conducted soon after the provision to protect people with mental illnesses in the workplace was enacted, researchers found that employers complied with the law due to a fear of being sued rather than because it was the right thing to do. This raises questions about social attitude change rather than simple behavior modification and the balance that we see today. The study also found that many employers tended to have negative attitudes towards people with mental disabilities, and some even went out of their way to make sure that the person was not hired.[11]

The National Alliance on Mental Illness (NAMI) provides several resources for legal recourse to people with mental illnesses who feel they were discriminated against. The most common way to directly challenge employment practices under the ADA is to file a complaint with the EEOC. The EEOC is the federal agency that reviews claims under the ADA, and they will provide a determination as to the merit of the claim. Another way to take action is to file a claim with a State Fair Employment Practice Agency. Several states have laws similar to the ADA and use their own state agencies to enforce them. Lastly, people with mental illnesses can contact the Department of Labor to file a complaint if they have been denied leave under the Family Medical Leave Act (FMLA).[12] All of these options provide a means to fight discrimination in the workplace.

The EEOC handled over 5,000 claims of discrimination on the basis of mental disability and won a combined total of $20 million in settlements in a single year.[13] Taking a broader point of view, researchers from the Virginia Commonwealth University analyzed over 400,000 cases of alleged employment discrimination from the EEOC’s Integrated Mission System database. This study, which was part of the National EEOC ADA Research Project, found that there was a 19.83% merit rate for mental illness allegations and a 23.39% merit rate for all other alleged ADA violations. This suggests two possibilities—either employment discrimination is less prevalent among people with mental illnesses or it is more difficult to prove.[14] EEOC investigators have agreed that cases involving employment discrimination due to mental illness are some of the most complex and expensive to handle, compared to other discrimination cases that involve physical health issues. This is due to lack of documentation or exacerbation of symptoms due to stress when someone suffers from mental illness.[15]

One particularly strong case that created excessive stress for a plaintiff with a psychiatric disorder was highlighted in a lawsuit filed against Voss Electric Company. This company fired a man with bipolar disorder, which causes mood shifts, changes in energy, and depressive/manic episodes.[16] The employee with bipolar disorder needed in-patient treatment, but rather than give him time off, Voss Electric Company fired him by taping a notice to his front door. This perpetuated his issues and made it difficult for him to recover. Voss Electric Company argued that the employee was not able to perform his job duties, but the EEOC argued that he should have been given medical leave. “Mentally disabled employees are protected under the ADA just as those who are physically disabled,” said Sidney B. Chesnin, lead trial counsel for the EEOC. “Disabled employees are entitled to consideration of a reasonable accommodation for their disability. By simply giving a worker a reasonable period of leave to adjust to a medical condition related to a disability, the employer can often pave the way for the return of a productive employee.” As a result, the employee won the case and received $91,250 as a settlement.[17] This case shows that discrimination due to mental illness is something that the EEOC will not tolerate, and it gives people with mental disabilities confidence that their cases matter.

For cases in which the EEOC determines no merit or the plaintiff is not content with the outcome, a lawsuit can be brought against the employer. However, in these cases, plaintiffs with mental illnesses tend to get poorer legal outcomes in discrimination suits in comparison to plaintiffs with physical disabilities. This is because juries often do not understand the impact of an “invisible disability” in the workplace and how it affects the employee.[18] Often times, it is also difficult is distinguish between mental illnesses and personality disorders. This makes job performance evaluations confusing to interpret for people who are not familiar with the difference between the two types of conditions.

Aside from legal remedies to discrimination due to mental illness, there are social implications of employment discrimination as well. A meta-analysis research study shows that unemployment rates are three to five times higher among people with a mental health problem compared to people who do not have a disability. The rate of unemployment often correlates with the severity of a person’s mental illness. For example, people with major depression have an unemployment rate of 40-60%, while people with schizophrenia have an employment rate of 80-90%. As a result, people with mental disabilities are one of the largest groups that rely on some form of public assistance, such as welfare.[19] For the few people with mental illnesses who have jobs, one in three report being told to take jobs lower than their qualifications and educational level, and one in five report facing employment discrimination, such as not receiving earned promotions, being refused a location transfer, and making lower than a fair wage for the position.[20]

The executive branch has taken an interest in the issue of employment discrimination due to mental disorders. In 2002, the President’s New Freedom Commission on Mental Health issued a report titled Achieving the Promise: Transforming Mental Health Care in America. In this report, the commission provided several recommendations for improving governmental systems that are dedicated to helping people with mental illnesses secure employment. Some of these options include healthcare coverage for psychiatric prescription medications, vocational trainings tailored to skill sets, creation of secondary education options for interrupted educational careers, financial literacy training, and legal aid for those facing employment discrimination.15 While many of these resources have been developed and put into place by various governmental agencies and non-profit organizations, we still have a long way to go to make sure that the stigma surrounding mental illness does not result in employment discrimination.

In 1973, the U.S. Supreme Court acknowledged that “[s]ociety’s accumulated myths and fears about disability and disease are as handicapping as are the [limitations] that flow from actual impairment.”[21] Decreasing the stigma surrounding mental illness will allow barriers in employment to slowly break down, protecting the initial promise of the ADA and upholding America’s culture of meritocracy. Collaboration to address the interests and mutual gains of both employers and employees will result in stronger policies and laws. However, there is still a gap between what the law states and what actually occurs in the workplace; reducing this gap will lead to positive social change as we work towards building a culture of respect and inclusion in employment, society, and beyond.

 

Bibliography

 

[1] Quinn, C. (2009, January 20). Mental illness at work: Why employers need a change of mindset. Retrieved April 03, 2018, from https://www.theguardian.com/money/2009/jan/20/mental-illness-discrimination-at-work

2 Reavley, N. J., & Jorm, A. F. (2015, October). Experiences of discrimination and positive treatment in people with mental health problems: Findings from an Australian national survey. Retrieved April 03, 2018, from https://www.ncbi.nlm.nih.gov/pubmed/26310264

3 Northeast ADA Center. (n.d.). Mental health conditions in the workplace and the ADA. Retrieved April 03, 2018, from https://adata.org/factsheet/health

4 EEOC. (n.d.). Depression, PTSD, & other mental health conditions in the workplace: Your legal rights. Retrieved April 03, 2018, from https://www.eeoc.gov/eeoc/publications/mental_health.cfm

5 EEOC. (2012, March 28). EEOC wins disability discrimination suit against payday lender ‘The Cash Store’. Retrieved April 05, 2018, from https://www1.eeoc.gov//eeoc/newsroom/release/3-28-12a.cfm?renderforprint=1

6 American Psychiatric Association. (n.d.). Diagnostic and Statistical Manual of Mental Disorders (DSM–5). Retrieved April 05, 2018, from https://www.psychiatry.org/psychiatrists/practice/dsm

7 Loy, B., & Whetzel, M. (2015, October 22). Accommodation and Compliance Series: Employees with Mental Health Impairments. Retrieved April 03, 2018, from https://askjan.org/media/Psychiatric.html

8 National Institute of Mental Health. (2016, February). Post-traumatic stress disorder. Retrieved April 03, 2018, from https://www.nimh.nih.gov/health/topics/post-traumatic-stress-disorder-ptsd/index.shtml

9 Gorrindo, T., & Parekh, R. (2017, July). What is obsessive-compulsive disorder? Retrieved April 03, 2018, from https://www.psychiatry.org/patients-families/ocd/what-is-obsessive-compulsive-disorder

10 U.S. Department of Labor. (n.d.). Youth, disclosure, and the workplace why, when, what, and how. Retrieved April 05, 2018, from https://www.dol.gov/odep/pubs/fact/ydw.htm

11 Scheid, T. L. (2005). Stigma as a barrier to employment: Mental disability and the Americans with disabilities act. International Journal Of Law And Psychiatry, 28(6), 670-690. doi:10.1016/j.ijlp.2005.04.003. Retrieved April 03, 2018, from https://www-sciencedirect-com.proxy-remote.galib.uga.edu/science/article/pii/S0160252705000828?_rdoc=1&_fmt=high&_origin=gateway&_docanchor=&md5=b8429449ccfc9c30159a5f9aeaa92ffb&ccp=y

12 National Alliance on Mental Illness. (n.d.). Succeeding at work. Retrieved April 03, 2018, from https://www.nami.org/Find-Support/Living-with-a-Mental-Health-Condition/Succeeding-at-Work

13 EEOC. (2016, December 12). EEOC issues publication on the rights of job applicants and employees with mental health conditions. Retrieved April 03, 2018, from https://www.eeoc.gov/eeoc/newsroom/release/12-12-16a.cfm

14 McMahon, B., Hurley, J. E., Monasterio, E. A., McMahon, B. T., & West, S. L. (2012). Merit determinants of ADA Title I allegations filed by persons with mental illness. Journal of Vocational Rehabilitation, 36(3), 171. Retrieved April 03, 2018, from http://eds.b.ebscohost.com.proxy-remote.galib.uga.edu/eds/pdfviewer/pdfviewer?vid=1&sid=ea559202-3115-4f42-955e-bc11276fcef8%40pdc-v-sessmgr01

15 Cook, J. A. (2006). Employment Barriers for Persons with Psychiatric Disabilities: Update of a Report for the President’s Commission. PSYCHIATRIC SERVICES, (10). 1391. Retrieved April 03, 2018, from https://search-proquest-com.proxy-remote.galib.uga.edu/docview/213087265?accountid=14537

16 National Institute of Mental Health. (2016, April). Bipolar disorder. Retrieved April 03, 2018, from https://www.nimh.nih.gov/health/topics/bipolar-disorder/index.shtml

17 EEOC. (2003, March 18). Worker with bipolar disorder to receive $91,000 in disability discrimination case settled by EEOC. Retrieved April 03, 2018, from https://www.eeoc.gov/eeoc/newsroom/release/3-18-03b.cfm

18 Hipes, C. (2016). Stereotypes, Gender, Power, and the Stigmatization of Workers with Mental Illness. Conference Papers — American Sociological Association, 1-34. Retrieved April 03, 2018, from

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19 Callard, F., & Callard, F. (2012). Mental illness, discrimination, and the law. [electronic resource]: Fighting for social justice. Chichester, West Sussex; Hoboken, NJ: Wiley-Blackwell, 2012. Retrieved April 04, 2018, from https://ebookcentral-proquest-com.proxy-remote.galib.uga.edu/lib/ugalib/reader.action?docID=896067&query=

20 Baldwin, M. L., Marcus, S. C., & Simone, J. D. (2010). Job loss discrimination and former substance use disorders. Drug and Alcohol Dependence, 110(1-2), 1-7. doi:10.1016/j.drugalcdep.2010.01.018. Retrieved April 04, 2018, from, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2885482/

21 Brennan, W. (n.d.). School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987). Retrieved April 05, 2018, from https://supreme.justia.com/cases/federal/us/480/273/

The Agricultural Iron Triangle

Agriculture has been vital to the formation of society as we know it—the establishment of a rural farming class to supplement capitalist urban development is a main feature of colonial American history. Without food, other forms of human production are simply impossible. This urgent need, along with the reality that agriculture is a unique sector of production with many challenges to overcome, has meant that intervention from the state is necessary to sustain farming and subsequently the economy (Mann & Dickenson, 284-288). However, since westward expansion and colonization ended, the percentage of Americans who farm has decreased significantly. A 1988 New York Times article lamented that while farmers made up 64 percent of the nation’s workforce in the 1850s, they currently comprised only 2 percent. During the 1980s, the farm population steadily dropped around 2 percentage points yearly (“Farm Population Lowest”). Today, according to the Farm Bureau, the percentage of Americans who live on farms still hovers around 2 percent (“Fast Facts”). Citizens growing up in urban environments may never visit a farm or interact with the source of their food, and yet farming ostensibly remains a major political issue.

A piece of legislation known as “the farm bill” is a broad, overarching set of policies dealing with farming and nutrition programs that is passed by Congress and signed by the President approximately every five years. It reauthorizes, expands, or changes provisions of the original Agricultural Adjustment Act, passed in 1933 to assist farmers struggling during the Great Depression (Bosso 36). And perhaps most importantly, these policies directly impact the lives of millions of Americans, both those who live on farms and those who will never see one. In such a high-stakes policy environment, who wields power when it comes to the farm bill, and how will those power dynamics play out in the legislation expected to pass in 2018? While the most obvious answer is that members of Congress hold the power to ultimately decide what gets passed into law, determining who appears to or truly holds power requires a deeper and more comprehensive consideration of all parties involved. In my research, I identified three additional key coalitions: the farm lobby, the nutrition lobby, and agribusiness. I propose that they form a contemporary farm bill “iron triangle” for agriculture policy, with the stipulation that Congressional members do still have some power in relation to these groups. Examining who these coalitions are, how their power dynamics played out in past farm bills, and what stances they currently put forth will assist in understanding what policies are on the table for the upcoming 2018 bill.

The circumstances surrounding the farm bill are unlike those for many other more traditional issue sets.  Today, the political sphere has become increasingly polarized into Democrat or Republican points of view. But agriculture brings otherwise strange bedfellows together, bound by a common interest and an urgent need for the programs passed or reauthorized in each bill. Uniquely, the farm bill is an omnibus piece of legislation that is responsible both for commodity farming programs and nutrition programs—most notably, the Supplemental Nutritional Assistance Program (SNAP). Individually, these pieces of legislation may not be able to pass Congress (Johnson & Monke). Members with urban constituencies could oppose spending money on crop insurance or farming research, while members in rural areas could oppose increases in nutrition spending that mostly manifest in low income, population dense areas. These distinctions are not necessarily partisan, but spatial. Additionally, individual members of the farm lobby do not always pursue the same legislative interests—for example, cattle farmers and grain farmers may have two very different sets of policies they would like to prioritize. The combination of farm and nutrition programs means that all members of Congress have a stake in what gets passed for the sake of their constituents. In this way, constituencies have power over their representatives at an aggregate level regardless of the political party they identify with.

The farm lobby is large, multi-faceted, and comprised of individual farmers along with many powerful corporate interests. Though these corporations claim to stick up for farmers, they may not always have the interests of small business at heart. The farm lobby is most visibly represented by the American Farm Bureau Federation (AFBF), an organization that claims to be “the unified national voice of agriculture” (“Fast Facts”). The AFBF grew out of a program originally established within the Department of Agriculture in the early 1900s, and eventually became an independent entity that lobbied for farmers’ collective legislative desires. It represents a group of smaller bureaus that operate at the state level, but critics have claimed that it leverages those small farmers to focus on what is best for industry, citing the Bureau’s support for monoculture and increasing the use of technology (Bosso 53). More specialized interest groups also exist for many subgroups of farmers: corn, soy, dairy, and beef farmers, for example, each have lobbying organizations that more narrowly focus on their wants. The overarching label of “farmers” by no means guarantees that all farmers’ interests are equal—for example, the Dairy Pride Act introduced in the House and Senate in January 2017 would prohibit the FDA from labeling plant based dairy products as containing dairy, restricting the term to animal products only and edging plant-based farmers out of the consumer eye (O’Connor). Farm interests fragmented and began to each hold more sway with fewer members of Congress around the late 1950s. With power separated among more groups, representatives agreed to vote for what each group wanted, as long as each provision was included. As a result, the 1964 farm bill was an amalgamation of every small interest’s wish list rather than a cohesive legislative agenda to benefit the nation’s growth (Bosso 57). The farm lobby’s power also rests on its unique relationship with the United States Department of Agriculture (USDA) formed during times of surplus production. The USDA regularly encourages consumers to purchase overproduced commodities in order to support farmers and mitigate the effects of agricultural exceptionalism (Guthman 129). Thus, because the USDA views its role through the lens of helping farmers, the farm lobby has already gained a seat at the table, or a reliable channel through which to influence policy.

The nutrition lobby represents groups fighting for anti-hunger initiatives. Programs supported by these groups include those for low income Americans who receive food assistance or education, and international food aid (Bosso 65). Because nutrition programs are linked so closely to farming and food distribution, they are often also supported by corporate interests. It is also important to note that some retail focused corporations like Wal-Mart support the nutrition lobby because they receive profits from having SNAP benefits spent at their stores (Bosso 65). Nutrition has become such an essential part of the legislation initially intended to support farmers that it was projected to comprise over 80 percent of the spending in the 2014 bill (Johnson & Monke 4). And while nutrition advocates are arguing for a traditionally less politically salient population, that population has a broad base of support. 77 percent of the general public believes that spending on SNAP should be maintained or increased (Long, et al.). Agricultural corporate interests involved in the nutrition lobby can portray themselves in a positive light to that sector of the population by supporting food programs. The power of the nutrition lobby was tested during the 1996 welfare reform bills, when food stamp benefits were cut significantly—because the members of the group in question, low income Americans, were not perceived to be as politically important when separated from the farm bill. Members of the coalition insisted that if any changes to the food programs were made, future farm bills simply would not be passed—because they would not support them, and the urban members of Congress would have no reason to support them either (Bosso 62). The political price of passing commodity farm programs was that they not be separated from nutrition. Indeed, in both the 2002 and 2008 farm bills, the programs were kept linked and passed Congress together. Urban voting blocs are essential to passing programs important to rural areas, and so compromise gives both sides power.

The third side of the iron triangle is agribusiness—a term for the concentrated group of corporations that wield price setting, buying, and distribution power throughout the global food system. Not only do these corporations comprise the narrowest part of the food system hourglass, but also hold political power through the revolving door of appointees (Clapp). From a financial standpoint, during the 2012 election cycle (the cycle that would elect representatives to craft the 2014 farm legislation), agribusiness as a whole spent $90 million to get candidates elected, three- quarters of which went to Republicans. Agribusiness also collectively spent a further $138 million on lobbying those elected representatives to vote against perceived threats of regulation and disclosure. So far in 2017, those companies have spent over $96 million on those same pursuits, with additional preparation for the upcoming farm bill and marker legislation (“Agribusiness”). Considering the power of the nutrition lobby in relation to the farm lobby, it might be surprising that the projected spending estimates for the 2014 farm bill included an $8 billion cut to SNAP (Johnson & Monke). But in light of agribusiness involvement, scholars argue that the devaluation of health initiatives to focus on subsidies benefits industry (Freeman 1277).

Now we turn to examine more specific key instances of how these three interrelated power dynamics have played out in historical farm bills. The 2014 farm bill in particular gave rise to a long and sometimes contentious debate about many of the programs contained within it, and produced some significant changes (or lack thereof) that indicate where power lies. The titles of the bill included commodities, conservation, trade, nutrition (SNAP), credit, rural development, research, forestry, energy, horticulture, and crop insurance (Johnson 2). There are important examples in the lawmaking process where it becomes clear how important farm and nutrition programs are to the other’s survival. In 2013, the House of Representatives attempted to pass two bills instead of one, splitting the titles to cover farm and nutrition programs separately—at the detriment of nutrition, with a proposed $40 billion cut, over ten times the more moderately proposed cuts in the Senate (Orden & Zulauf 4). However, these bills suffered a resounding defeat, which was heralded as a marker of the declining power of agriculture, and the increasing power shift to urban areas (Nixon). Other important developments pointed to the increasing power of agribusiness at the expense of the farm lobby—lawmakers voted to change the commodity system to significantly decrease the amount of direct (commodity) payments given to farmers. Instead, they reverted back to a program based on crop insurance, a program that pays out to farmers regardless of whether crops are completely destroyed, and that has no maximum cap on benefits received (Dayen). Under this policy, large corporate agribusiness farms can collect on thousands of dollars in insurance annually, while smaller farmers receive very little. Additionally, crop insurance companies are often already owned by agribusiness, who then benefit from both sides of the equation (Clapp 102). As a result of this shift to crop insurance, the list of those receiving subsidies is no longer available to the public; eliminating agribusiness transparency about how much money they stand to gain (Freeman 1272).

How will all of these power dynamics and previous pieces of legislation come to bear in the 2018 bill? There are two ways to examine what is currently salient on the minds of legislators and lobbyists. The first is by examining pieces of “marker legislation,” shorter bills that are introduced in the years preceding a farm bill to start the discussion of potential policies that will eventually become law. Legislators, as early as the beginning of 2017, have begun releasing these bills in conjunction with key advocacy and lobbying organizations. The National Sustainable Agriculture Coalition (NSAC) says that the purpose of collaborating with lawmakers and other groups on these bills is to lay out an agenda, find congressional sponsors, and get their grassroots base motivated to fight for their goals (“Farm Bill 2018” 10). This marker legislation is even more important given that the new administration under President Trump has not made clear statements about priorities or its legislative agenda. So far, Senator John Thune of South Dakota has introduced six bills over the course of 2017 that would change the acreage of farmland in conservation and increase payments to farmers affected by natural disasters (“Thune Farm Bill”). Senator Thune sees these changes as necessary because commodity prices decreased dramatically since the 2014 farm bill. Measures to alleviate the consequences of the falling price of goods to almost below production cost will likely be a major focus of the 2018 bill (Johnson 2). Senators Roberts and Stabenow, the chairs of the Senate Agriculture Committee, have sponsored three and two marker bills respectively (“Legislation”). NSAC, along with allied lobbying groups, plans to introduce bills that will eliminate barriers to new farmers entering the market, improve conservation, alter the crop insurance program that was prevalent in the 2014 bill in ways that benefit small farmers, support locally based initiatives, increase access to genetically modified agricultural inputs, and fund sustainable livestock farming (“Farm Bill 2018” 11)

The second method of examining salience is through publications of and websites for the three sides of the farm bill iron triangle. Many initiatives supported by interest groups in this legislative cycle have to do with decreasing the equity gap between corporate and small or medium sized family farmers, as well as more localized programs to better meet regional and crop specific needs (Johnson 3). NSAC is a coalition of groups that advocate both on the side of the farm lobby and the nutrition lobby, and so has a fairly diverse agenda that is more progressive on the side of nutrition and calls for major reform to the crop insurance program. The Farm Bureau (AFBF) is aligned solely with the farm lobby, and attempts to speak on behalf of many different farming groups, but advocates for nutrition programs as a part of the power sharing deal that allows both sides to get their priorities passed. As such, their policy priorities as published include maintaining crop insurance for all and especially low-income farmers, expanding fruit and vegetable subsidies to producers of processed products, price supports and trade limits for sugar, and land conservation (“Farm Bill Resources”). The AFBF, NSAC, and members of the Senate all repeatedly note that commodity prices have fluctuated but have been trending down over the past few years, causing problems for farmers who would have otherwise benefited from commodity subsidies eliminated in the 2014 farm bill. Although agribusiness may push back, the farm lobby’s connection to the USDA and the nutrition lobby’s distaste for the crop insurance program will likely lead to some, though not full, restoration of commodity benefits.

So, who truly holds power in determining the contents of the most important piece of agriculture policy in the United States, and what will that look like in 2018? The answer to who holds power is nuanced, and leaves plenty of room for future scholarship to address it. I have identified the farm lobby, the nutrition lobby, and agribusiness as the three key players in crafting the farm bill, along with the representatives whom they influence and to whom they belong as individual constituents. Each of these groups represents an important consideration for policymakers: farmers of all different kinds, food consumers (particularly low-income consumers), and the businesses that connect them. The power of the farm lobby and the nutrition lobby are clearly intertwined, dependent on each other for political reasons as well as the fact that nutrition programs are inextricably linked to the food they stem from. Although the coalitions of people they represent may not always be politically salient, these lobbies have found ways to keep power in relation to agribusiness. Farmers have a history of involvement with the government, and agriculture is an essential national resource, so political leaders are inclined to listen and respond to their needs. Nutrition advocates are buoyed by public support and the concentration of representative political power in urban centers. It is hard to tell who benefits more from this arrangement—ostensibly, nutrition programs stand to lose and have lost more from being separated from their counterpart, despite being a part of the social safety net. However, the number of Americans living in urban centers and benefiting from nutrition programs like SNAP means that farming interests may be equally beholden to cooperation. Alone, it seems as though either of these groups would have trouble competing with agribusiness. The quantity of financial contributions and established hold on the market make agricultural corporations very salient and powerful entities. Certainly, the outcomes from past farm bills make it seem as though agribusiness has an advantage in what becomes policy. Further research is needed, especially after the 2018 farm bill is passed, to determine if farm and nutrition lobbies together can outweigh the interests of agribusiness. Preliminary findings in this paper using history and current legislative initiatives suggest that they may be able to gain small victories.

In looking ahead to 2018, the major political factors appear to be tied to changes in the 2014 farm bill and the climate since then. The shift from commodity subsidies to crop insurance benefitted agribusiness over small farmers, and the farm and nutrition lobbies are seeking to change that dynamic. That change compounded with a decline in commodity prices has left farmers with more financial trouble. For other Americans, however, the economic climate continues to improve, and so budget conscious representatives will likely propose nutrition program cuts yet again. Debates between conservative supporters of agribusiness and conservatives who rely on rural farmers as their base will define who wins the power struggle between small and corporate farm interests, perhaps playing out in crop insurance reform. Further debates will almost certainly emerge between different commodity producers and farm groups, as they have even outside of the farm bill. Regardless of who wins or loses, the 2018 farm bill will surely continue to define the power structure of agriculture as the members of the iron triangle work together to pass their policies through Congress.

 

Works Cited

 

Bosso, Christopher. Framing the Farm Bill: Interests, Ideology, and the Agricultural Act of 2014. University Press of Kansas. 2017. eBook.

Clapp, Jennifer. “Transational Corporations.” Food, Polity Press, 2012, p. 90-124.

Dayen, David. “The Farm Bill Still Gives Wads of Cash to Agribusiness. It’s Just Sneakier About It.” The Atlantic. 4 February 2014. Web. 19 November 2017.

Freeman, Andrea. “The 2014 Farm Bill: farm subsidies and food oppression.” Seattle University Law Review, vol. 38, no. 4, 2015. Web. 19 November 2017.

Guthman, Julie. Weighing In. University of California Press, 2011.

Johnson, Renee. “Previewing the 2018 Farm Bill.” Congressional Research Service. 15 March 2017. Web. 19 November 2017.

Johnson, Renee, & Monke, Jim. “What is the Farm Bill?” Congressional Research Service. 5 October 2017. Web. 19 November 2017.

Long, M. W., Leung, C. W., Cheung, L. W. Y., Blumenthal, S. J., & Willett, W. C. (2014). Public support for policies to improve the nutritional impact of the supplemental nutrition assistance program (SNAP). Public Health Nutrition, vol. 17, no. 1, 219-24. Web. 19 November 2017.

Mann, Susan, and James Dickinson. “State and Agriculture in Two Eras of American Capitalism.” The Rural Sociology of Advanced Societies: Critical Perspectives, edited by Frederick Buttel and Howard Newby, Allenheld, Osmun/Croom Helm, 1980, p. 283-301.

Nixon, Ron. “Farm Bill Defeat Shows Agriculture’s Waning Power.” The New York Times. 2 July 2013. Web. 19 November 2017.

Orden, David, & Carl Zulaf. “Political Economy of the 2014 Farm Bill.” American Journal of Agricultural Economics, vol. 97, no. 5, 2015. Web. 19 November 2017.

O’Connor, Anahad. “Got Almond Milk? Dairy Farms Protest Milk Label on Nondairy Drinks.”

The New York Times. 13 February 2017. Web. 19 November 2017.

“Agribusiness.” OpenSecrets.org. 2017. Web. 19 November 2017.

“Farm Bill 2018: A Primer.” National Sustainable Agriculture Coalition. December 2016. Web. 19 November 2017.

“Farm Bill Resources In-Depth.” American Farm Bureau Federation. 2017. Web. 19 November 2017.

“Farm Population Lowest Since 1850s.” The New York Times. 20 July 1988. Web. 19 November 2017.

“Fast Facts About Agriculture.” American Farm Bureau Federation. 2017. Web. 19 November 2017.

“Legislation.” Congress.gov. 2017. Web. 19 November 2017.

“Thune Farm Bill.” John Thune: U.S. Senator for South Dakota. 2017. Web. 19 November 2017.

 

Virtual Currency, the Government, and a Race to Own Buying

The recent popularity of virtual currencies has detracted from their intended use. Instead of acting as a decentralized currency, tokens such as Bitcoin and Ethereum have been utilized as investment opportunities. However, as the crypto-mania dies down, the potential application of virtual currency must be reexamined and reconciled with our current financial system. This paper aims to explain the transition from currency as we knew it to this virtual currency, and the political implications of such a transition. This paper will first outline currency, both traditional and virtual, before turning to discuss the difficulties in implementing virtual currency. Then, it will consider three different government approaches to the new currencies. Finally, the paper will end with a discussion of the patentability of virtual currency technology.

Currency, unlike money, does not have any intrinsic value. The U.S. Dollar does not have a value beyond a determination set by the government and markets, whereas money, such as gold, has a value beyond its market price. For centuries, global currencies relied on the gold standard for this very reason. For example, the U.S. Dollar had a set value in gold, and until 1971 the Dollar could be exchanged for its gold value.[1]  With the elimination of the gold standard, current economies have transitioned to fiat currencies. A fiat currency is backed only by the full faith and credit of the issuing state. Thus, a currency is only valuable to the extent that the market trusts the currency. Despite these varying states, currency continues to three critical purposes.[2]  The first is as a store of value, where one pound of iron, for example, can be exchanged into currency and then re-exchanged at a later date. Following, the second purpose is as a medium of exchange, through which people can buy and sell from one another. Lastly, currency serves as a unit of account, where goods and services are based on a set value and not relative to other goods and services.

In general, digital currency also seeks to satisfy these criteria. Virtual currency, a form of digital currency, is the virtual representation of economic value.[3]  This differs from traditional currency in that virtual currency is not available in tangible ‘note’ form. While current banking maintains account balances and credit card transactions without any paper exchanging hands, account balances and credit card transactions are also convertible into paper form. In addition, virtual currencies, unlike traditional currencies, do not require a third party (such as a bank) to mediate transactions. Instead, some utilize blockchain technology. The blockchain serves as a public ledger, where transactions are grouped into ‘blocks’ and verified by the network of users.[4] While the intricacies of virtual currencies are interesting and expansive, the larger integration of them into the economy may pose a greater obstacle.

The difficulty with virtual currency lies in its rogue nature, where the three main purposes of currency face obstacles. First, virtual currency as a medium of exchange faces issues due to its lack of legal tender status.[5] Since the currencies are not validated by any state, their use is at the discretion of transacting parties. A bookseller in Boston can just as well refuse or accept Bitcoins for a purchase. Thus widespread adoption is limited until such currencies are guaranteed across the economy.

Also, currencies such as Bitcoin are unreliable as a unit of account. A party wishing to sell a good is unlikely to rely on a currency with such a volatile nature. One Bitcoin, for example, reached a price high just above $19,000 in early December; and, four months later, it was sitting around $8,300.[6] Despite the extreme price fluctuations, virtual currencies can participate in market exchange pricing, which tracks the relative exchange rates between a virtual currency and a more traditional one, such as the Dollar. The benefit of market exchange pricing for a unit of account allows a virtual currency to be understood relative to a more well-known tool. However, until price volatility is maintained, the institutional adoption of virtual currencies seems unlikely.

Lastly, some virtual currencies maintain a unique advantage due to their finite supply. As a store of value, a finite supply of a currency ensures that a single token or bill is not reduced in value over time by inflation.[7] Yet, the finite supply also makes market inequalities possible, where the possibility of future scarcity may motivate some to treat the currency more as an investment than a store of value.[8]  Additionally, a common concern surrounding the currencies is their potential for fraud and abuse. Before the recent spike in popularity, virtual currencies were commonly used in questionable transactions, such as on Silk Road, which was an online marketplace for drugs and other illegal goods and services. A virtual currency called Monero markets itself by claiming it is “private” and “untraceable.”[9] The lack of transparency lends itself to possibilities for criminal activity, such as money laundering and purchase of illegal goods and services. Also, since virtual currencies must be stored online in a virtual wallet, there is the risk of cyber theft.[10] Given these risks amid widespread popularity of virtual currencies, governments have sought to regulate, and in some cases ban, this new currency.

The government has limited ability to ban virtual currency. A state may criminalize the use, sale and/or possession of the currency; however, a government faces difficulty in enforcing such laws. China has made Bitcoin illegal, citing concerns over its decentralized nature, the limited quantity of Bitcoins, that the currency’s major functions are not geographically restricted and are anonymous, and that the currency does not have legal tender status.[11] The concerns raised by China reinforce the rogue nature of the currency, where there is no central authority accountable or regulations in place to verify the users. The lack of accountability undermines the role of the government in protecting the rights of citizens. Russia, in a mix of restriction and freedom, has allowed the possession of virtual currencies, but previously outlawed their use for transactions, insisting that transactions are only valid using the Ruble.[12] There is, however, current legislation pending in the Duma which aims to legalize virtual currencies in the coming months. In the U.S., virtual currency is legal. However, the Internal Revenue Service (IRS) categorizes virtual currency as property.[13]  Given the varying treatment of virtual currency by countries, it is difficult to come to any global understanding or determination. However, companies and individuals are surging ahead, attempting to patent the myriad opportunities in this new financial realm.

The opportunity to patent virtual currencies seems like a modern-day gold rush; however, the new intellectual realm has its limitations. The patentability of an idea was tested in the 2014 Supreme Court decision in Alice Corp. v. CLS Bank.[14]  The case set two important limitations on new intellectual property patents: a party cannot patent an abstract idea, and a patent cannot simply take a practice and apply it to computers.[15] Additionally, the idea must be “non-obvious,” which is determined by a legal test.[16] Given these limitations, corporations and individuals are attempting to patent new utilizations of virtual currency and the underlying mechanisms.

Virtual currency and related patents have skyrocketed in recent years, where the blockchain and related technologies seem promising for businesses. Facebook has an approved patent concerning virtual credits.[17]  The patent covers creating virtual tokens, their relative redemption value to real world currencies, and a method to keep track of it all. Bank of America is also looking to the virtual realm, where it is seeking to patent a virtual currency exchange system that streamlines currency conversion.[18]  Additionally, Paypal, in a race for future virtual currency stake, has submitted a patent to expedite the transaction of virtual currency.[19] Bitcoin, for example, is plagued by slow transaction times given the high volume and verification system. If PayPal is able to patent and realize the faster transaction system, they may gain an advantage in the future marketplace.

The focus on virtual currencies follows the discussion of an economic transition from traditional currencies to virtual currencies. While other applications of blockchain and related technology are promising innovation in a variety of sections, such as healthcare and voting, the implementation of virtual currency seems to be the fundamental system on which our society operates. While the coming years in digital currency remain uncertain, the possibility and seemingly eventual transition to an internet-driven economy raise these concerns which must be addressed before virtual currencies are truly viable.

 

Works Cited

[1] “Nixon Shock.” Department of State, Office of the Historian, www.history.state.gov/milestones/1969-1976/nixon-shock. Accessed 5 Apr. 2018. While gold-backed currency was stopped in the 1970s, a bill (H.R. 5404)advocating a return to the gold standard is currently in the House of Representatives.

[2] “Asmunson, Irena and Cyeda Oner, “What is Money?” IMF, www.imf.org/external/pubs/ft/fandd/2012/09/basics.htm. Accessed 5 Apr. 2018

[3] Abboushi, Suhail. “Global Virtual Currency – Brief Overview.” Journal of Applied Business and Economics, vol. 19, 6, 2017, pp. 10-18, at 10.

[4] Nofer, M., Gomber, P., Hinz, O., & Schiereck, D. “Blochain.” Business & Information Systems Engineering, vol. 59, 3, 2017, pp. 183-187, at 183-184.

[5] Ciaian, P., Rajcaniova, M., & Kancs, d’A. “The Digital Agenda of Virtual Currencies: Can Bitcoin Become a Global Currency?” Information Systems and e-Business Management, 2016, pp. 883-919, at 891.                                      

[6] “Charts.” Coinbase, www.coinbase.com/charts?locale=en-US. Accessed 15 Apr. 2018.

[7] Ciaian 895.

[8] Ibid.

[9] Get Monero. Monero, www.getmonero.org. Accessed 10 Apr. 2018.

[10] Turpin, Jonathan B. “Bitcoin: The Economic Case for a Global, Virtual Currency Operating in an Unexplored Legal Framework.” Indiana Journal of Global Legal Studies, vol. 21, no. 1, 2014, pp. 335-368, at 385-386.

[11] Artemov, N. M., Arzumanova, L. L., Sitnik, A. A., & Zenin, S. S. “Regulation and Control of Virtual Currency: to be or not to be…” Journal of Advanced Research in Law and Economics, vol. 8, no. 5, 2017, pp. 1425-1435, at 1431-1432.

[12] Id. at 1432.

[13] Lambert, Elizabeth E. “The Internal Revenue Service and Bitcoin: a Taxing Relationship.” Virginia Tax Review, vol. 35, no. 1, 2015, pp. 88-115, at 99.

[14] Alice Corp. v. CLS Bank, 573 U.S. (2014).

[15] Ibid.

[16] Gatto, James G. “Patent Strageties for Cryptocurrencies and Blockchain Technology.” SheppardMullin, 2018, at 3.

[17] Morgenstern, Jared, et. al. Creation, Redemption, and Accounting in a Virtual Currency System. United States Patent US 8,255,297. United States Patent and Trademark Office. 28 Aug. 2012.

[18] Ronca, James G., et. al. Cryptocurrency Transformation System. United States Patent Application US 9,836,790. United States Patent and Trademark Office. 5 Dec. 2017.

[19] Tian, Cheng, et. al. Expedited Virtual Currency Transaction System. United States Patent Application US United States Patent and Trademark Office. 1 Mar. 2018.

Gender Quotas: Reasonable or Radical?

“Political Affirmative Action” is the moniker a New York Times writer gave gender quotas (Rampbell 2009, 1). Yet, this name fails to convey the importance of incentivizing government and businesses to begin including women in their leadership. Women are half of the world’s population, which necessitates more representation in governments and boardrooms than what we currently have, with women comprising only 27% of Congress. This places the United States in 101st place globally for the percentage of female representation in government (“Women in Government” 2018). Despite the social backlash against gender quotas, such as quota implementation and the probable impossibility of them ever being carried out, implementing quotas can help bring more women and their intellectual capital into influential positions, inspire younger women to strive for those positions and help make those workplaces more welcoming to women who seek them in the future. First, I will explain the value of women in politics and business, which will give context to why quotas bringing in more women will benefit those institutions overall. Second, I will examine how quotas could normalize the presence women in those fields, which could result in changing the existing cultures in those fields, and inspiring younger women to enter those fields. Third, I will explore the concept of quota stigmatization, and how it ignores systemic inequalities against women that gender quotas are supposed to help mitigate. Fourth, I will address the practical reality of implementing gender quotas in the United States and the low likelihood of it ever happening. Lastly, I conclude with the reminder that gender quotas are only one part of the solution, and much more needs to be done to achieve more female representation in both Congress and the boardroom.

Women involved in politics and business offer different perspectives, thus contributing to the diversity of knowledge on various issues, as well as dismantling the stigma of politics and business being “a man’s game”. Henderson and Jeydel (2010) concluded in their study that the presence of women is important in government and business as they draw attention to overlooked women’s issues and reinforce the social idea that women can achieve high power positions in those areas (Henderson and Jeydel 2010, 35). Pearson and Dancey (2011) expanded on Henderson and Jeydel’s (2010) by examining one-minute floor speeches (Pearson and Dancey 2011, 497).

They found that congresswomen in both parties are significantly more likely than men to discuss women, enhancing women’s representation (Pearson and Dancey 2011, 493). Simon and Palmer (2010) seemingly disputed this with their study that concluded that there was no significant difference in the voting scores or roll call scores of female or male members of House (Simon and Palmer 2010, 230). However, they also conceded that women’s legislative agendas were different as they focused more on women’s issues (Simon and Palmer 2010, 245). Women bring much needed awareness to women’s issues, and are necessary in our political and financial institutions. More women brought by quotas can intensify this effect and make women’s issues in politics and business a more widespread and openly discussed topic. Additionally, while descriptive representation may not necessarily result in better substantive representation, Pearson and Dancey (2011) theorized that the rationale behind the greater likelihood for women acting on behalf of women are women’s common socialization, experiences and perspectives that create a sense of mutuality among women (Pearson and Dancey 2011, 255). Therefore, it is likely that women are the best people to represent women’s issues since they have common ground in their experience, which brings attention to problems that are often ignored.

In addition to raising awareness on overlooked issues, quotas can help normalize women in government and business, inspiring new generations to those positions to further integrate women in those workplaces, and combating the idea that women cannot succeed in these fields. Campbell and Wolbrecht (2006) found that the more women politicians are made visible by national news coverage, the more likely adolescent women indicate an interest in engaging in politics (Campbell and Wolbrecht 2006, 233). Quotas can help provide a wider sample of women to serve as achievable examples to which adolescent women can aspire.  The societal influence that quotas can help strengthen, could also help with the major problem that Lawless and Fox (2012) identify as the reason women do not win office: they do not run (Lawless and Fox 2012, 30). One reason is the “gendered psyche”, when women doubt whether they are qualified to run or whether they would even win (Lawless and Fox 2012, 10). The “gendered psyche” is a manifestation of the idea of politics and business being exclusively male fields, where only men can succeed, as well as the lack of encouragement from family and colleagues, and simultaneous discouragement from society, for women to run. However, quotas can bring more women, who can serve as role models of success,  into those fields. Furthermore, when those women are in powerful positions in government and the corporate world, they could be more sensitive to the particular issues that women face while trying to get to those positions. They then can help establish better pipelines or a more inclusive work culture to welcome women into government and business, which can help further combat the self-defeatist nature of the gendered psyche.

Quotas can also help change the work environment of government and business when women are finally in office. The competitive, cut-throat nature of politics and finance does not appeal to women, as Niderle and Vesterlund (2007) found (Niderle and Vesterlund 2007, 1067). Women tend to avoid competition, and prefer a more cooperative environment, while men tend to intentionally seek competition (Niderle and Vesterlund 2007, 1069). Having more women in office could possibly foster a more collegial environment, a culture more aligned with their preferences, which could help all the women perform better in their fields. However, there is always the risk of quota stigmatization, which ignores the social and institutional inequalities that women face. Dahlerup (2007) discusses quota stigmatization, where women are perceived as less qualified or are stigmatized based on the assumption that they received their position solely due to their gender (Dahlerup 2007, 245). Nonetheless, the more women that enter those professions, the more their conception of women being less qualified would most likely change, as the concept of women holding executive positions is normalized (Dahlerup 2007, 250). Furthermore, quota stigmatization is based on the assumption that men and women have equal opportunities, resources and encouragement to pursue careers in government and business. Quota stigmatization ignores the social and institutional inequalities that exist for women when trying to enter, and continue to progress in those fields. For instance, Anzia and Berry’s (2011) study found that only the best, most over- performing congresswomen are elected to office, congresswomen secure 9% more federal discretionary funds, and sponsor and cosponsor more bills than their male counterparts (Anzia and Berry 2011, 478). Therefore, women have to put in more effort to keep their seats than men. Quotas’ possible effect of normalizing women in these fields can aid in alleviating some of the extreme pressure women feel in keeping their seats due to sexism, by making women in those fields more commonplace and reducing the intense standards for keeping their positions.

More opposition arises when one considers the practical issues with implementing a gender quota in the United States, and deciding what percentage the quota should be. The exact percentage that the quota should be set as, could differ for each chamber of Congress or each area of the country. However, it ultimately should incentivize political parties and the country to elect more women than we have currently, which is not representative of the amount of women in the country, nor the amount of women that vote. Dahlerup (2007) discussed the intense merit- based culture of the United States, which would make it unlikely that gender quotas would ever be implemented (Dahlerup 2007, 259). However, this does not detract from the potential benefits of a gender quota that are demonstrated in other countries. Additionally, as more highly industrialized, European countries such as Germany, implement quotas for boardrooms, the United States could one day follow the trend. Norris and Inglehart (2010) found that the highest rates of women in government are generally correlated with high levels of development, secularization and egalitarian attitudes towards women (Norris and Inglehart 2010, 128). There is hope that the United States will come to gender parity eventually, however, a gender quota could aid in achieving such equality sooner.

Quotas are not the only answer to achieving more female representation in government and business; attention should also be focused on other institutional and social reform that is more conducive to women’s lives. If there are no women willing to run, the gender quota system will not even be possible. In addition to gendered psyche, Lawless and Fox (2012) discuss two other problems that prevent women from running (Lawless and Fox 2012, 167-170). Traditional family roles for women take up time for married women and result in less encouragement to run for office or engage in political discussions by parents (Lawless and Fox 2012, 167). Masculinized ethos causes parties to recruit less women, creates a sexist corporate culture and causes fewer colleagues to encourage women to run for office (Lawless and Fox 2012, 167). Quotas at the recruitment levels can help mitigate the problem of masculinized ethos, yet these problems are social manifestations of sexism that are not going to be solved solely with quotas. There needs to be further institutional change to make government and businesses more accommodating for familial responsibilities, to aid in reducing the effect of traditional family roles. This could mean allowing for part-time work, working from home and reducing the stigma against taking maternity and paternity leave. Likewise, both families and colleagues need to begin encouraging their female colleagues and children to become engaged in politics and run for office or strive for the high positions in the corporate ladder. We need to combat the social notion that women do not have a place in these fields and encourage them to run, because, as according to Brooks’ (2013) research, they are not generally disadvantaged by their gender in the eyes of the public (Brooks 2013, 30).

Ultimately, despite quota stigmatization and the low likelihood of quotas ever being a reality in America, there are multiple benefits to having a gender quota. Gender quotas bring more women into government and business, which results in the sharing of more diverse opinions, which translates into better policy and more sound financial decisions. Furthermore, the normalization of women in those high power positions can help galvanize more women to enter those fields, change the culture there to be more conducive to the way women perform work and change media bias for politicians. It can also help mitigate some social inequalities present in those positions once women are in positions of power to enact change. However, despite the improbability of gender quotas being implemented, gender quotas have substantial benefits that could benefit women in society, making them a worthy proposal to consider at the very least. Their possible impact can serve as a beginning in addressing the systematic inequality that women still face in the workplace. We must also address the lack of social support for women considering running for office or striving for the high power management position, that prevent women from even entering the race. We, as a society, must address the deep, systematic institutional and social biases that make women doubt their own abilities, or risk losing their talents.

 

Works Cited

Anzia, Sarah F., and Christopher R. Berry. “The Jackie (and Jill) Robinson effect: Why Do Congresswomen

Outperform Congressmen?” American Journal of Political Science 55, no. 3 (2011): 478-493.

Brooks, Deborah Jordan. He Runs, She Runs: Why Gender Stereotypes Do Not Harm Women Candidates. Princeton: Princeton University Press, 2013.

Campbell, David E., and Christina Wolbrecht. “See Jane run: Women Politicians as Role Models for Adolescents.”

Journal of Politics 68, no. 2 (2006): 233-247.

Dahlerup, Drude. “Electoral gender quotas: Between Equality of Opportunity and Equality of Result.”

Representation 43, no. 2 (2007): 73-92.

Dahlerup, Drude. “Will Gender Balance in Politics Come by Itself?” In Kellerman, Barbara, and Deborah Rhode.

Women and Leadership: The State of Play and Strategies for Change. John Wiley & Sons, 2007.

Henderson, Sarah, and Alana S. Jeydel. Women and Politics in a Global World. NY, NY: Oxford University Press, 2010.

Lawless, Jennifer L., and Richard Logan. Fox. It Still Takes a Candidate: Why Women Don’t Run for Office. New

York: Cambridge University Press, 2012.

Niederle, Muriel, and Lise Vesterlund. “Do Women Shy Away from Competition? Do Men Compete Too Much?”

The Quarterly Journal of Economics 122, no. 3 (2007): 1067-1101.

Pearson, Kathryn, and Logan Dancey. “Speaking for the Underrepresented in the House of Representatives: Voicing

Women’s Interests in a Partisan Era.” Politics & Gender 7, no.4 (2011): 493-519.

Rampbell, Catherine. “Political Affirmative Action: Quotas for Women.” New York Times, January 12, 2009.

Accessed November 19, 2017. https://economix.blogs.nytimes.com/2009/01/12/political-affirmative-action-quotas-for- women/?_r=0.

Simon, Dennis M., and Barbara Palmer. “The Roll Call Behavior of Men and Women in the US House of

Representatives, 1937–2008.” Politics & Gender 6, no. 2 (2010): 225-246.

Women in Government (2018, April 24). Retrieved May 22, 2018, from http://www.catalyst.org/knowledge/women-government.

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

 

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  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.
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