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being discriminated against [because of] mental illness – people being demoted, refused promotion, or having job offers withdrawn after having disclosed a mental health problem.”[1] Even though the Americans with Disabilities Act (ADA) prevents people with mental illnesses from being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

 

  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.