The High School Journal of Law & Society Issue IV

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1 A Message from the Board The High School Journal of Law & Society began as a result of the lack of outlets for high school students interested in the fields of law and social science to publish their work. Its primary purpose still holds: to promote youth engagement in social science endeavors and discovery, and to highlight excellence in writing on such topics. Our fourth issue saw a number of remarkable transitions: a 70% increase in the number of journal submissions, the introduction of international authors, and an fervent excitement of diverse scholars in niche fields to collaborate with us. The Editorial Board continued to work with extreme dedication to cultivating their like-minded peers’ curiosity, brilliance, and passion. A notable shift in submission topics reflects society’s changing climate; our authors’ wide-reaching interests included minority rights (with a focus on gender), effective leadership, and international relations. We are excited to be publishing five unique papers that reflect what this generation of youth believes to be today’s critical societal inquiries. These authors have now had the opportunity to work with two of our Board members to polish their writing, and one or more scholars, with expertise in the paper’s field, to hone their argument. As always, the hope is that academics who read this journal will be inspired by the creativity, commitment, and unique thought these authors have brought upon crucial issues in modern day society. Sincerely, Kaya Vadhan [founder] & the HSLS Editorial Board


2 The Editorial Board Rania Dadlani Rania is a junior at McNair Academic High School. She is interested in learning how the legal system relates to race, power, and class, which is why she opted to join the board. Alexandra Dishnica Alex is a freshman at the University of Pennsylvania and is passionate about public policy and political philosophy. She is especially interested in immigration policy and runs a podcast, Dishing on Immigration, which aims to share immigrant stories. Mia McElhatton Mia McElhatton is a freshman at the University of Pennsylvania. She has worked as the community organizer for the Women’s Community Revitalization Project, Central’s mock trial captain, a writer for her school paper, and assistant editor for a city-wide school district paper. Maya Espinel Maya is currently a freshman at Syracuse University. She is interested in all aspects of political science, international relations, and law. Her involvement with the journal has come from an excitement for the opportunity to create student-accessible spaces. Enya Kamadolli Enya is a freshman at Claremont McKenna College. She is interested in international relations, law, and business, and works on the journal due to a passion for social justice. In her free time, Enya enjoys debating, rock climbing, and reading. Ethan Leung Ethan is a senior at the Lawrenceville School in New Jersey. He grew up in Hong Kong and is interested in studying political science, law, and history. In particular, Ethan is passionate about environmental law and criminal justice reform. Kaya Vadhan Kaya is a sophomore at Harvard University planning on studying psychology and government. She eventually sees herself pursuing a career as a lawyer or in criminal justice reform. Tiffany Wen Tiffany is a senior at The Lawrenceville School in New Jersey. She is passionate about law and history. In her free time, Tiffany enjoys reading, writing, and playing the flute. She is thrilled to be working on the journal this year.


3 Issue IV Reviewers Laurence Claus, DPhil in Law1 Laurence Claus is a Professor of Constitutional Law at the University of San Diego Law School. He specializes in Comparative Constitutional Law, consulting for the ABA Rule of Law Association on Middle Eastern and Northern African constitutional reform. Further, served at the US Embassy in London for the Department of Justice’s Office of Foreign Litigation. Joseph DiMento, JD, PhD2 Joseph DiMento is a Professor of Law in Criminology, Law, & Society at the University of California, Irvine. His expertise lies in international and environmental law. He has directed various research programs at UCI such as the Newkirk Center for Science and Society. Anthony Fowler, PhD3 Anthony Fowler is Professor at the University of Chicago’s Harris School of Public Policy. His research applies econometrics to political science with focuses including voter turnout, incumbent success, and policymaking in legislatures. Robin Goldstein, JD, PhD4 Robin Goldstein is an author and economics researcher. He is currently the Director of the University of California Davis’s Cannabis Economics Group, studying cannabis markets, regulations, and legality. Prior, he advised the California Bureau of Cannabis Control as an economist for six years. Russell Golman, PhD5 Russell Golman is an Associate Professor of Behavioral Economics and Decision Sciences at Carnegie Mellon University. His interdisciplinary work combines economics, psychology, and mathematics to study decision making and game theory, and has been published in economics, psychology, and cognitive science journals. Imtiaz Gul6 Imtiaz Gul is a hexalingual, international scholar on security, terrorism, militancy, Afghanistan, and Pakistan. Since 2007, he has been the Executive Director of the Center for Research and Security Studies, Pakistan’s primary think tank and advocacy center. His work has been shared extensively internationally through mediums such as conferences, televised reporting, authored books, and journalism. Greta Hsu, PhD7 Greta Hsu is a Professor at the University of California, Davis’s Graduate School of Management, specializing in organizational behavior and market categorization processes. Her research includes studies on the dynamics of the cannabis and e-cigarette industries. Reuben Stern, PhD8 Reuben Stern is an Assistant Professor of Philosophy at Duke University. His research specializes in decision theory, epistemology, rational choice, and the philosophy of action, specifically as applied to legal and moral responsibility. 1

https://www.sandiego.edu/law/faculty/biography.php?profile_id=2735 https://www.law.uci.edu/faculty/full-time/dimento/ 3 https://harris.uchicago.edu/directory/anthony-fowler 4 https://cannabiseconomics.ucdavis.edu/people/robin-goldstein/ 5 https://www.cmu.edu/dietrich/sds/people/faculty/russell-golman.html 6 https://imtiazgul.com/biography/ 7 https://gsm.ucdavis.edu/profile/greta-hsu 8 https://sites.google.com/view/reubenstern/home 2


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The Whipple Award Thanks to the Whipple Writing Fellowship, one of our outstanding papers has the chance to be honored with a $100 award for excellence in writing. The Whipple Writing Fellowship, which operates out of Brookline High School (founder Kaya Vadhan’s alma mater), was created to honor David Whipple (BHS Class of 2012, Yale Class of 2016) and his love of writing nonfiction. He was an exceptional writer and student who had a particular interest in the study of Law. He graduated from Yale University with a bachelor’s degree in Ethics, Politics and Economics. The Fellowship’s goal in offering this prize is to encourage young writers to rigorously research and write about topics that matter to them and the world. Special thanks to the Gladstone-Whipple family for their support of this nascent journal and its goal of celebrating young researchers and writers. We have chosen to award this prize to Taban Malihi and her paper Make Solutions, Not Sanctions: Ending the US’s Economic War on the Afghan People due to her critical inquiries into a pressing issue, dedication to the HSLS revision process, and demonstrated passion for change-making.


5 Table of Contents

I. Ending the US’s Economic War on the Afghan People…

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II. High Stakes: America’s Love and Hate of Cannabis…

33

III. The Implications of Rational Choice Theory on Jury and Criminal Behavior…

46

IV. The U.S. President: Leadership Styles in American Politics…

62

V. An Analysis of Ambiguity in Law…

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Make Solutions, Not Sanctions: Ending the US’s Economic War on the Afghan People

By Taban Malihi

Newton South High School, Class of 2024 Newton, MA

Mentored by: Kelly Henderson, Teacher Edited by: Kaya Vadhan, Ethan Leung Reviewed by: Imtiaz Gul


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Dedicated to Meena Keshwar Kamal (1956-1987)

Zarifa Ghafari (1992-)

Resources for Further Reading

“O darling, you’re American in my eyes. You are guilty, I apologise.”

This traditional Afghan landay laments how civilians pay the price for American failures.


8 I.

INTRODUCTION The summer of 2021 saw U.S. headlines reporting on everything from intense droughts

and wildfires in the American west to an ongoing racial reckoning to the COVID-19 pandemic. Yet one international crisis dominated the nightly news for mere weeks before fading into the ever-churning news cycle: the U.S. pullout of Afghanistan. Widely described as a "disaster" and "betrayal" (Nevett), many questioned this climactic end to a nearly twenty-year-long intervention that left an estimated 157,000 people dead (Whitlock). Indeed, although the Pew Research Center reported that 54% of U.S. adults in August 2021 supported the decision to withdraw troops from Afghanistan, a near-equal amount of Americans—42%—said the withdrawal was poorly executed, while 69% said the U.S.’s Afghanistan mission was largely a failure (Van Green). A March poll from I&I/TIPP even concluded that 56% of Americans believe the pullout from Afghanistan, embroiled in chaos and confusion, emboldened Vladimir Putin’s invasion of Ukraine (Jones). Though the governmental collapse was a shock to many, behind the scenes the American government played a considerable part in the downfall of one of its greatest democratic projects: within Afghanistan’s U.S.-supported ‘democracy’, the U.S. actively enabled widespread corruption that doomed the system from the start (Michel). American journalist Craig Whitlock found that forty percent of Department of Defense contracts—tens of billions of dollars—ended up in the hands of criminal officials and organizations (Whitlock). Even development assistance, amounting to $132 billion since 2001, was found by Congress’ Special Inspector General for Afghanistan Reconstruction (SIGAR) to be either wasted or stolen (U.S. Government Publishing Office). Though it has been almost a year since the U.S. pullout and Taliban takeover, the U.S. is still involved in perpetuating an ongoing crisis in Afghanistan. In its attempts to apply economic


9 pressure to the repressive Taliban, the U.S. and its policies have contributed to Afghanistan’s wholescale societal collapse, dire to the point that in February, the White House recognized the situation as an “extraordinary threat to the national security and foreign policy of the United States” (Lang). Yet amidst a geopolitical standstill where neither side is willing to come to the negotiating table, the people of Afghanistan suffer, having experienced decades of foreign intervention and violence only to now be left at the mercy of a limited number of aid organizations and otherwise cut off from the world. The U.S., which expressed such a deep sense of responsibility to support a terrorism-free Afghanistan in 2001, must now accept the consequences of its actions to once more take responsibility as an international leader and adopt a different approach than the status quo. Thus, this paper argues that to truly aid Afghans, current U.S. economic warfare must cease and make way for more rational approaches to both policy making and diplomacy as well as alternative forms of harm mitigation, including bolstering efforts to provide refuge to Afghans in need.

II.

CONTEXT BEHIND U.S.-AFGHAN RELATIONS The U.S. government follows the ‘path of least resistance’, constantly maintaining

appearances to sate the public. Therefore, although it is advantageous to the government to maintain its current quiet economic warfare and consequently face very little public resistance, when considering its history of failure surrounding interventions in Afghanistan, it is its responsibility to abandon this irresponsible posture. The government must begin the hard work it has failed to do in the past twenty years: approach the situation with a goal-oriented mindset while recognizing its limits, versus the equivalent of throwing a handful of darts whilst blindfolded to see which ones stick. If not, the continuation of a long-standing performative


10 doctrine comes at the cost of both this nation’s foundational values as well as the potential to create genuinely beneficial policies to both aid Afghanistan and repair the U.S.’s credibility as a leader. If the U.S. wishes to be an arbiter of justice and promoter of democracy with global influence, it must first strive to fulfill its own ideals of transparency, recognize the consequences of its actions, and accept its responsibility to help—not continue to destroy—Afghanistan today. A. Historical Relations 1. Entering Afghanistan Former President George W. Bush said in 2002: “The history of military conflict in Afghanistan has been one of initial success followed by long years of floundering and ultimate failure. We are not going to repeat that mistake” (Whitlock). These promises, made during the beginnings of the U.S. war in Afghanistan, would ring hollow not soon after his speech. Yet it is worth understanding the roots of modern U.S.-Afghan relations, to the end that they provide essential context to the current state of Afghanistan as well as the nature of U.S. foreign policy objectives. Major U.S. involvement in Afghanistan stretches back to the 1950’s; during the Cold War, both the U.S. and Soviet Union sponsored infrastructure investments, and by the 1980’s, following a 1978 Marxist-Leninist revolution, the U.S. became involved with the resistance movement to counter the spread of communism (Stewart). These resistors, the mujahedeen, varied in terms of political ideology and capability, but the U.S. specifically funded the most reactionary, conservative, Islamist branch of the mujahedeen, as they happened to be the most organized of the groups. Unfortunately, the U.S. was haphazard in its management and neglected to monitor these groups, resulting in their eventual evolution into al-Qaeda and the Taliban (Stewart). In effect, with U.S. funding, guns (Alvi), and training (including infamous terror


11 tactics like suicide bombing), the U.S. soon found itself seeking to defeat a monster of its own creation—it won the battle only to lose the war (Tharoor). This historical backdrop for the U.S. invasion of Afghanistan explains why experts have called the initial invasion an example of imperialistic government doctrines put in motion, with U.S. power projection at the heart of intervention rather than the Afghan people—a tradeoff that risks repeating itself in the present day (Peters). 2. Government Narrative Manipulation The government has obscured and warped the narrative surrounding the war in Afghanistan time and time again. After a three-year-long legal battle with the U.S. government, the Washington Post was able to obtain access to the Afghanistan Papers under the Freedom of Information act. Over 2,000 pages of these previously unpublished interview records revealed that senior U.S. officials recognized they were losing the war, yet externally maintained false claims of success (Whitlock). These claims include comments from Army Maj. Gen. Jeffrey Schloesser, in 2008: “Are we losing this war? Absolutely no way. Can the enemy win it? Absolutely no way.” These catchy rhetoric are hyperbolic at best and blatant lies at worst, meant to neatly package warmongering to the American public within a palatable us-versus-them mentality. Contrary to the Major General’s confident public statements, senior officers in the Afghanistan Papers exposed extreme top-level incompetencies, revealing that the war had been plagued since its inception by “so many priorities and aspirations it was like [there was] no strategy at all.” No strategy was evidently a bad strategy: as early as the first few months of conflict, years before Schloesser’s speech, officials cited fears of a “Vietnam-like quagmire” as the U.S. suffered heavy losses. This proved true as the war dragged on for another twenty years, yet Army colonel and senior counterinsurgency adviser Bob Crowley, corroborated by another


12 Senior National Security Council official, revealed that the U.S. government was willing to go to any ends to cover up the true cost of the war: “Every data point was altered to present the best picture possible.” This harsh truth, worsened by the doomed war strategy, directly contradicts misleading messages from prominent officials, including former President Barack Obama, in 2009: “Going forward, we will not blindly stay the course. Instead, we will set clear metrics to measure progress and hold ourselves accountable” (Whitlock). The falsehoods surrounding these metrics indicate that there has never been any real attempt at holding the U.S. accountable for its failed war and deceptive actions, and officials must publicly acknowledge the truth in the aftermath of the pullout for any meaningful accountability to take place. Moreover, given the warped history behind this largely one-sided decision making, it is impossible for the U.S. to deny its unique responsibility to deal with the disastrous results of its mistakes. 3. Media Narrative Manipulation The media has always been key to controlling public opinion about Afghanistan, since a relatively ignorant constituency enabled the perpetuation of shadowy political and operational decisions. General Douglas Lute, who administered U.S. affairs with Afghanistan under both Bush and Obama, remarked: “If the American people knew the magnitude of this dysfunction…” (Whitlock) Indeed, this ponderance highlights the importance of public perception to a government that finds such ease in withholding the truth; if the constituents don’t hear about something, it effectively didn’t happen when it comes to shaping government policy. The proof is in the viewership: during the war, TV news coverage on major networks CBS, NBC, and ABC was negligible, totaling five minutes in all of 2020. Meanwhile, the government’s need to memorialize the pullout as the righteous end of a two-decade-long war ensured that in just August 2021, coverage jumped to 345 minutes, yet slumped back to 21 minutes between


13 September and January 2022 in the worsening aftermath (Marcetic). Such fast-changing headlines condition Americans to feel an ‘appropriate amount of remorse’ and move on, all while Afghanistan’s current crisis goes underreported, resulting in an uninformed American public that cannot hold the government accountable. Even after the disastrous pullout exposed the mission’s dysfunction (Van Green), American public criticism was too little, too late: if constituents had been exposed to the truth all along, they likely would have exercised their democratic rights to vote against, protest, and change the U.S.’s foreign policy approach during the war, saving countless American and Afghan lives. A second dynamic behind underreporting is deeply rooted in the underlying racism of American imperialism. Columbia University Research Fellow Richard Hanania writes that economic warfare is “impractical and morally destructive but politically convenient”, because conflict causing the deaths of American soldiers draws considerably more attention from the American public than famine and economic disaster that solely affects Afghans (Hanania). Similarly, to maximize engagement, media outlets prioritize reporting on warfare that affects the majority of Americans, which often means that once the intervenor disengages, a lack of coverage feeds into limited public education and discourse. Meanwhile, it is essential to recognize that diasporic communities within the U.S. are not exempt from the effects of economic warfare, but neither politicians nor media adequately factor them into their decision making, since these communities tend to constitute a small percentage of the population or face obstacles to enfranchisement or viewership such as language barriers. Simultaneously, the post-9/11 phenomenon of mass desensitization to conflict in the SWANA region has encouraged xenophobic, racist, and Islamophobic rhetoric from politicians and reporters which further cements public apathy towards the plight of Afghanistan and a willful ignorance of human


14 suffering. Calling refugees of color “uncivilized” justifies both their plight and the lack of attention it receives, enabling mass dissociation and a lack of collective responsibility (Ko), which should be a major concern for any democratic country that relies on the engagement of the populace to determine the future of policy. B. Modern Day Relations In the winter of 2021-22, twenty-four million Afghans were facing life-threatening food insecurity (Ferguson). Inflation, a liquidity crisis, and a healthcare system collapse now ravage a population that had already been struggling with widespread poverty before the withdrawal. The New York Times reports that the root cause of this economic crisis is U.S. sanctions on the Taliban, with the international community following in American footsteps to cut off Afghanistan from the international financial and banking system (New York Times). In addition to sanctions, $10 billion dollars worth of Afghan assets have been frozen in foreign vaults along with $440 million in IMF reserves, largely due to concerns about Taliban access to these funds. Similarly, the flow of foreign aid has vanished into thin air, taking with it three-quarters of Afghanistan’s public spending and 43 percent of GDP (Marcetic). Exacerbating an already dire situation, in February 2022, President Joe Biden signed an executive order dictating that of the $7 billion in Afghan assets America seized, $3.5 billion will go to aid for Afghans, while the other half will be distributed to the families of 9/11 victims (Ahlman) (Hussain). However, senior officials within the Biden administration admit that due to extended delays, this aid will be largely ineffective and overall insufficient (Lang). Moreover, the decision has been criticized by Afghan activists, organizations like Unfreeze Afghanistan, and 9/11 victim families alike, with a consensus that laying claims to the money of the Afghan people is unlawful and unethical in the face of the ongoing humanitarian crisis (Hussain).


15 Peter Swope of the Brown Political Review concludes that this is the new face of American imperialism, with U.S. economic and strategic interests at the forefront of its actions as opposed to realistic crisis management. Indeed, they continue that despite no Afghan being responsible for the 9/11 attacks, Afghans today are being held responsible for what transpired over 20 years ago, while Saudi Arabia—from which 15 of the 19 hijackers hailed—has generally enjoyed strong relations with the U.S., even with continued concerns over government repression and human rights violations. As such, Swope argues that the U.S.’s current method of collective punishment is predicated on and perpetuates post-9/11 Islamophobic, orientalist, and racist narratives of the SWANA region as a monolith (Swope); these prejudiced views feed into a wide range of ongoing social, economic, and military violence against regional and diasporic SWANA peoples. The current state of Afghanistan hangs in the balance, as the NGO Save the Children reports in May that almost 50 percent of the population needs urgent support to survive, with nearly 10 million children going hungry, despite continuing humanitarian aid (Al Jazeera). Moreover, UN officials report that organizational efforts have been unable to avert the economic collapse from "approaching a point of irreversibility…What we have done has been only to buy a little time" (Landay). If Afghanistan is to ever have a stable foundation upon which to build an economy, a solution to the current crisis must be determined immediately.

III.

SOLUTION-MAKING It is essential to acknowledge that there are no perfect solutions to complex civil and

international crises like those in Afghanistan. However, considering the legacy of poorly-informed, under-nuanced, secretive decision making that trails the U.S. government’s


16 history with Afghanistan, the first step towards productive solution-making is acknowledging and learning from past and current mistakes. The imperative lies with the U.S., both as a global leader and major contributor to the current state of the nation, to abandon its ongoing ineffective strategies in order to play a part in the solution-making process. A. Roadblocks to Success There are currently two main roadblocks to effective solution-making. Firstly, the Taliban are not internationally recognized as legitimate governmental leaders of Afghanistan. This technicality has huge consequences for diplomacy efforts: not only does it enable the U.S. to make claims to the $7 billion it holds in Afghan assets, it also isolates vulnerable Afghans—oppressed by their leaders and ignored by the world. UN Special Representative Deborah Lyons explains that in order to truly help Afghans, countries must work with Afghanistan’s “defacto authorities” (Landay). Therefore, the U.S. must put its pride aside and seek opportunities for negotiation with the Taliban, however unsavory the prospect may appear. The second main roadblock lies within the U.S. political system, and likely explains not only America’s current stance on dealing with the Taliban, but also decades of American foreign policy failures around the world. First, let it be established that informed policymaking requires high-quality, up-to-date information; one might expect the U.S. politicians and decision makers utilize such resources when shaping foreign policy. It may come as a surprise, then, that U.S. Congresspeople are either gatekept from investigating to uncover said information or outright refuse to acknowledge the consequences of their policies in Afghanistan (Ahlman). In February 2022, the leader of the Congressional Progressive Caucus, Representative Pramila Jayapal, sponsored an amendment to the America COMPETES Act that would enable Congress to formally study the effects of U.S. economic policies in Afghanistan. But every House


17 Republican and 44 House Democrats voted to block it. While Republican opposition could be attributed to political polarization, when contacted, not a single opposition Democrat provided an explanation for their vote (Ahlman). This apathy towards Afghanistan is particularly concerning coming from individuals with potential access to confidential government information that could inform life-saving policies. Furthermore, it represents a leadership preference to uphold a static stance on U.S. foreign policy with little opportunity for essential reflection or adaptation, limiting the government’s capability to learn from its mistakes and ensuring its foreign policy will forever value short-term stability over long-term stability. In fact, Professor Michael McFaul of the Freeman Spogli Institute for International Studies cites this precise reasoning to explain why seventy percent of all major U.S. foreign interventions fail to foster democracy, falling to autocracy within ten years (Nichols). If the U.S. wishes to promote productive solution-making in Afghanistan and beyond, it must exit its policy comfort zone to seek the truth in its entirety. B. Addressing the Status Quo 1. Eroding Taliban Stability Current U.S. policy is so ineffective as to be counterproductive, damaging both the nation’s international standing and its larger fight against terrorism. In a devastating blow to U.S. credibility, this January, a senior U.S. aide revealed that the United Nations, International Rescue Committee, and Red Cross, in addition to numerous foreign policy experts (Ioanes), have unanimously warned Biden that no amount of aid can compensate for the destruction of Afghanistan’s financial system at the hands of sanctions and seizures (Ahlman). The situation has even caused internal divisions: in December 2021, 40 House Democrats urged the Biden administration to release the billions of seized funds, to no avail (Kudo). Despite these pleas, the U.S. fixated on its current strategy of chokeholding the economy in an effort to undermine the


18 Taliban, without concern for the deadly toll on everyday Afghans (Swope). However, from an operational standpoint, this strategy is a failure: it can only punish innocent civilians, since the Taliban, apathetic to the people’s concerns and international demands, stay rich off drug trafficking, which accounts for up to 60% of their revenues (Azami). In fact, the more Afghans suffer at the hands of U.S. measures, the more the Taliban can capitalize on widespread resentment and poverty to boost recruitment (Hudson) (Gossman). Indeed, historical studies reveal that U.S.-imposed economic oppression caused the radicalization at the heart of the Taliban’s extremist fundamentalism (Gagnon). In essence, the government staunchly maintaining its current policy strategy in the face of both the experts and the facts can only cause harm, and for both credibility and national security purposes, the U.S. must take into consideration the well-being of the Afghan people. 2. Women’s Rights The U.S.’s reasoning for its actions targeting the Taliban has long been centered around human rights violations. Since the 2001 invasion, the suffering of Afghan women has been co-opted and commodified to justify U.S. intervention. This phenomenon, known as ‘purplewashing’, draws upon the American public’s preconceived notions surrounding women’s liberation to create moral grounds for the war beyond retaliation for 9/11 (Freeman and Mi). Although liberalism and feminism was relatively safer under U.S.-supported democracy, the heroism shielding the U.S. cannot erase its own human rights violations, including the active perpetration and condoning of violent abuse (Ahmadi et. al) for which it has never been convicted, in large part due its leveraging of soft power to obstruct investigations since 2003 (Speri).


19 In the past year, countless politicians like Speaker of the House Nancy Pelosi have brought forth messages such as: “The U.S. […] must do everything we can to protect women and girls from inhumane treatment by the Taliban.” According to LeftVoice, these platitudes--eerily echoing militaristic purplewashing narratives--support current U.S. economic imperialism (Freeman and Mi). Despite politicians’ mission to ‘support women’s rights’, the U.S.’s current method of economic pressure is not a productive solution to the Taliban’s repressiveness, as evidenced by ongoing Taliban crackdowns on female autonomy and education, as well as Afghan women’s compounded suffering. International Rescue Committee President and CEO David Miliband highlights the disparities in priorities between Western liberal feminism and the actual needs of Afghan women within his organization, who ask: “How on earth does the West think they are helping our prospects when we can’t feed our families?” (Ahlman). Zaigul, an internally displaced mother of seven at the Nasaji camp near Kabul, echoed this sentiment: “You can live without freedom, but you can’t live if you have nothing to eat” (Ibrahim). Indeed, the economic and humanitarian crisis caused in large part by the U.S. disproportionately impacts Afghan women and girls (Cone)—for instance, the number of child brides is rising as families seek bride-prices, and since August, over 120,000 children have been “bartered” by their families for financial reasons (Tharoor). As such, not only is current U.S. policy ineffective at undermining the Taliban or strong-arming them into respecting women’s rights, it also ultimately worsens the situation for Afghan women and girls. C. Solutions Beyond the Status Quo 1. Context While the first step towards improving the current situation clearly involves the U.S. ceasing its economic warfare, this does not--nor should it--illustrate the full picture of how the


20 American government can help Afghans. Harm mitigation often takes many forms; however, this paper’s analysis focuses on one of the most immediate: aiding Afghans in escaping Afghanistan altogether. To understand why this matters, one must first imagine a hypothetical situation: all goes according to the core recommendations of this paper—the U.S. ending its sanctions and seizures, consequently eliminating the largest barrier to the efficacy of aid organizations and allowing for economic activity to resume, as well as eliminating the roadblocks to pursuing a more diplomatic approach with the Taliban and establishing congressional learning processes. Yet the Taliban cannot be trusted to protect Afghanistan’s people, having made and broken false promises in the past (Hadid), and many Afghans understandably will still wish to leave and seek stability. Thus, even in this “perfect” hypothetical scenario, there is an urgent need for evacuation, immigration, and resettlement processes both during and after implementation of the recommendations, and this paper’s scope of analysis subsequently reflects this reality. a) Afghans in Afghanistan and Abroad A report by the nonprofit Association of Wartime Allies concluded that by March 2022, the U.S. had evacuated only about 3 percent of Afghans who worked for the American government and applied for the special immigrant visa (SIV) program. Left behind by the initial evacuation effort immediately following the pullout (De Luce), 78,000 Afghans now face the Taliban’s travel bans, forced either to languish in a crisis-gripped country or attempt dangerous smuggling to neighboring countries that can result in death or deportation (Radio Azadi). Numerous bureaucratic barriers make entry to the U.S. still more difficult, including a visa application process that, despite the U.S. Embassy in Kabul being closed, at one point required medical exams and in-person interviews (De Luce). Meanwhile, Afghans who have managed to apply for entry hang in limbo, since the agency that processes humanitarian parole requests, the


21 U.S. Citizenship and Immigration Services (USCIS), is experiencing backlogs so severe that of the 66,000 applications received, so far 8,000 have been processed and only 123 approved (Aminy) (Washington Post). Worse, an official from the Biden Administration announced in early September that the US will largely cease to admit Afghans on humanitarian parole after October 1, 2022 (Landay); considering the ongoing crisis, this deadline should be immediately reconsidered. b) Afghans in the U.S. Afghans currently residing in the U.S. face the challenges of a complex bureaucratic system while falling through the cracks of governmental aid. The U.S., in contradiction to the vast majority of sources and experts, has not granted refugee status to Afghans fleeing the oppressive Taliban and a humanitarian-economic catastrophe. This lack of recognition has caused a multitude of problems, beginning with resettlement programs that rely on private volunteers often operating with less adequate logistical and financial support compared to government-led initiatives for refugee resettlement (Washington Post). The other main challenge this presents is that evacuated Afghans, once in the U.S., are at the mercy of the government when it comes to their temporary or permanent residency. According to the Department of Homeland Security, 36,000 Afghans in the U.S. have temporary residency under humanitarian parole (Dunphey). Although DHS extended the duration of this temporary residency to 18 months in March, this is a “short term band-aid”, according to Krish O’Mara Vignarajah, president and CEO at Lutheran Immigration and Refugee Service (LIRS). Vignarajah asserts that this temporary residency stakes the lives and livelihoods of vulnerable Afghans on the whims of constantly-shifting political agendas (Aguilera). If the temporary residency time runs up without being renewed, and evacuees haven’t found a way to stay permanently within the U.S., they risk


22 losing work authorization or being deported. They risk the same fate if they have applied for asylum through the U.S. refugee program (which grants permanent residency) but have not yet been accepted—a likely situation due to extreme backlog that can make it up to a three-year-long process (Dunphey). Thus, it is clear that the U.S. government must take systematic measures to give Afghan evacuees more stability, beginning with recognizing their status as refugees as well as expanding and fast-tracking pathways to permanent residency. 2. Potential Solutions Regardless of the mistakes the U.S. made in the evacuation process, the current largest issue remains the Taliban’s unwillingness to allow Afghans to flee the country; diplomatic negotiations, as previously mentioned, are the only way for this dynamic to shift. Whether the Taliban becomes open to migration or not, there are many Afghans that have fled to neighboring countries who wish to come to the U.S., and there are numerous ways the U.S. government can assist them. In fact, there is ample precedent for the government to both create sponsorship-resettlement programs (which it has currently done for Ukrainian refugees) and establish paths to citizenship for Afghans currently in the U.S. (which it has historically done for Cuban, Vietnamese, and Iraqi refugees) (Washington Post). However, a prerequisite to this process remains that evacuated and escaped Afghans, who are widely recognized as refugees, must be afforded the legal status to match their dire situation. In addition, opportunities for international cooperation should be utilized. A February 2022 report by the Atlantic Council Europe Center established the responsibility of countries that participated in the war in Afghanistan—including the U.S., Canada, U.K., Germany, France, and others—to assist in the evacuation of Afghan civilians. They further recommended a plan for each country in this multinational refugee coalition to work towards a goal of annually taking in refugees equivalent


23 to 0.05 percent of its population, as well as adopting a resettlement model similar to Canada’s current private sponsorship scheme that expedites permanent residency (Stewart). For Afghans already in the U.S., streamlining the residency process is essential. Thankfully, activists are pushing for Congress to pass the recently introduced Afghan Adjustment Act, which would grant permanent residency to Afghans currently on humanitarian parole if they have been in the U.S. for a year or more. The act was originally introduced as a provision of the $40 billion Ukrainian aid package in May 2022, but despite calls for action was ultimately not included. Now, this bipartisan bill faces increasingly strict timelines due to upcoming midterm elections and immigration policy expirations (Dunphey), meaning Congress must act immediately if it wishes to provide this essential support to Afghans in the U.S.

IV.

CONCLUSION Afghanistan is in the midst of a humanitarian and economic crisis caused and perpetuated

in large part by U.S. economic policies. Past U.S. interventions in Afghanistan have been harmful in numerous ways, from indirectly radicalizing the Taliban to supporting corruption in a failing democracy project to engendering false and harmful narratives at home. As such, the U.S. owes it to Afghanistan as well as to the American people to stop its largely ineffective, highly damaging economic warfare and instead institutionally recognize its mistakes and engage in productive solution-making with the Taliban, whilst also rethinking its approach to the refugee crisis U.S. policies have caused. In the midst of Afghanistan’s challenges, Hardin Lang, vice president of Refugees International, identifies the largest barrier to achieving this goal not as a “shortage of creative ideas”, but a “missing [...] political will to move quickly and the boldness to take difficult decisions. That political will must come from the top” (Lang). Without this


24 political will, there will be no pursuit for diplomacy to bring the Taliban to the negotiating table around women’s rights and possibilities for further refugee evacuations. Without this political will, American foreign policy will forever cement itself in stagnancy, doomed to repeat its worst failures. Without this political will, the Afghan people will continue to suffer not only for the sins of the Taliban today, but also the sins of the 9/11 hijackers two decades ago. Without this political will, U.S. credibility will continue to deteriorate amidst a rapidly changing, multipolar geopolitical arena. Without this political will, the modern-day manifestations of America’s imperial legacy will continue in the form of economic strangulation. Put simply, as Lal Mohammad of Kan-e-Ezzat village explains: “Everyone is traumatised and tired. We didn’t want the Russians, nor the Americans, nor the Taliban. We just want peace” (Glinski).


25 Works Cited Aguilera, Jasmine. "'Short Term Band-Aid.' Afghans in the U.S. Can Now Apply for Temporary Protection." TIME Magazine, 20 May 2022, time.com/6179185/afghans-temporary-protected-status/. Accessed 26 May 2022. Ahlman, Austin. "BIDEN'S DECISION ON FROZEN AFGHANISTAN MONEY IS TANTAMOUNT TO MASS MURDER." The Intercept, 11 Feb. 2022, theintercept.com/2022/02/11/afghanistan-frozen-assets-economy/. Accessed 18 Apr. 2022. Ahmadi, Belquis, et al. "Intolerance of Atrocity Crimes in Ukraine Should Apply to Afghanistan." United States Institute of Peace, 28 Apr. 2022, www.usip.org/publications/2022/04/intolerance-atrocity-crimes-ukraine-should-apply-afg hanistan. Accessed 30 Apr. 2022. Alvi, F. Haider. "The U.S. failed in Afghanistan by trying to moralize with bullets and bombs." The Conversation, 9 Jan. 2022, theconversation.com/the-u-s-failed-in-afghanistan-by-trying-to-moralize-with-bullets-and -bombs-174033. Accessed 4 May 2022. Aminy, Najib, and Dhruv Mehrotra. "The US Has Approved Only 123 Afghan Humanitarian Parole Applications in the Last Year." Reveal News, The Center for Investigative Reporting., 19 Aug. 2022, revealnews.org/article/the-us-has-approved-only-123-afghan-humanitarian-parole-applica tions-in-the-last-year/. Accessed 19 Sept. 2022. Azami, Dawood. "Afghanistan: How do the Taliban make money?" BBC World News, 28 Aug. 2021,


26 www.google.com/url?q=https://www.bbc.com/news/world-46554097%23:~:text%3DEsti mates%2520of%2520the%2520Taliban%27s%2520annual,Afghan%2520Reconstruction %2520(Sigar)%2520report.&sa=D&source=docs&ust=1655542282364643&usg=AOvV aw06-UNhGKeNHQQLD72jzeVT. Accessed 13 Apr. 2022. Board, Editorial. "Don't forget the Afghan refugees who need America's support." The Washington Post, 28 Apr. 2022, www.washingtonpost.com/opinions/2022/04/28/afghan-refugees-still-need-support/. Accessed 30 Apr. 2022. Cone, Devon. "Now, There is Nothing Safe": A Roadmap for Investing in Afghan Women and Girls. 1 Apr. 2022. Refugees International, www.refugeesinternational.org/reports/2022/3/30/now-there-is-nothing-safe-a-roadmap-f or-investing-in-afghan-women-and-girls. Accessed 24 May 2022. De Luce, Dan. "U.S. 'left behind' 78,000 Afghan allies in chaotic withdrawal: NGO report." NBC, 1 Mar. 2022, www.nbcnews.com/investigations/us-left-78000-afghan-allies-ngo-report-rcna18119. Accessed 3 Apr. 2022. Dunphey, Kyle. "The Afghan Adjustment Act, explained." Deseret News, 3 June 2022, www.deseret.com/utah/2022/6/3/23153262/what-is-the-afghan-adjustment-act-how-woul d-it-impact-humanitarian-parole-ukraine-refugees. Accessed 5 June 2022. "Eight Months Later, A Look At The Taliban's Broken Promises." NPR, uploaded by Diaa Hadid, 11 Apr. 2022, www.npr.org/2022/04/11/1092016683/eight-months-later-a-look-at-the-talibans-broken-p romises. Accessed 2 May 2022.


27 Ferguson, Jane. "Afghanistan Has Become the World's Largest Humanitarian Crisis." The New Yorker, 5 Jan. 2022, www.newyorker.com/news/dispatch/afghanistan-has-become-the-worlds-largest-humanit arian-crisis. Accessed 20 Mar. 2022. Freeman, Madeleine, and Sou Mi. "Liberal Feminism Is an Imperialist Project." Left Voice, 11 Sept. 2021, www.leftvoice.org/liberal-feminism-is-an-imperialist-project/. Accessed 25 Mar. 2022. Gagnon, Jean-Paul. "The Taliban Did Not Create the Taliban, Imperialism Did." Journal of South Asian Development, Apr. 2012. Research Gate, www.researchgate.net/publication/43086253_The_Taliban_Did_Not_Create_the_Taliban _Imperialism_Did. Accessed 22 May 2022. Glinski, Stefanie. "Afghanistan six months on from the Taliban takeover ? photo essay." The Guardian, 4 Mar. 2022, www.theguardian.com/world/2022/mar/04/afghanistan-six-months-on-from-the-taliban-ta keover-photo-essay. Accessed 12 May 2022. Gossman, Patricia. "How US-Funded Abuses Led to Failure in Afghanistan." Human Rights Watch, 6 July 2021, www.hrw.org/news/2021/07/06/how-us-funded-abuses-led-failure-afghanistan#. Accessed 19 Apr. 2022. Hanania, Richard. "Ineffective, Immoral, Politically Convenient: America's Overreliance on Economic Sanctions and What to Do about It." Cato Institute, 18 Feb. 2020, www.cato.org/policy-analysis/ineffective-immoral-politically-convenient-americas-overr eliance-economic-sanctions. Accessed 21 Feb. 2022.


28 Hudson, Adam. "Thanks to Reliance on 'Signature' Drone Strikes, US Military Doesn't Know Who It's Killing." TruthOut, 4 Aug. 2015, truthout.org/articles/thanks-to-reliance-on-signature-drone-strikes-us-military-doesn-t-kn ow-who-it-s-killing/. Accessed 23 Feb. 2022. Hussain, Murtaza. "9/11 FAMILIES AND OTHERS CALL ON BIDEN TO CONFRONT AFGHAN HUMANITARIAN CRISIS." The Intercept, 6 June 2022, theintercept.com/2022/06/06/afghanistan-funds-famine-crisis-911-families/. Accessed 7 June 2022. Ibrahim, Arwa, and Mohsin Khan Momand. "Afghan women face hardship as Taliban struggles to revive economy." Al Jazeera, 12 Jan. 2022, www.aljazeera.com/features/2022/1/12/afghan-women#:~:text=%E2%80%9CYou%20ca n%20live%20without%20freedom,Afghanistan%27s%20population%20%E2%80%93% 20face%20acute%20hunger. Accessed 17 Feb. 2022. Ioanes, Ellen. "US policy is fueling Afghanistan's humanitarian crisis." Vox, 22 Jan. 2022, www.vox.com/2022/1/22/22896235/afghanistan-poverty-famine-winter-humanitarian-cri sis-sanctions. Accessed 22 Mar. 2022. Jones, Terry. "I&I/TIPP Poll: 56% Blame Biden's Afghan Debacle For Ukraine Invasion, Fear Putin Will Use Nukes." Tipp Insights, 7 Mar. 2022, tippinsights.com/i-i-tipp-poll-56-blame-bidens-afghan-debacle-for-ukraine-invasion-fearputin-will-use-nukes/. Accessed 21 May 2022. Ko, Sydney. "All war is a disgrace?not just European war." The Queen's University Journal, 18 Mar. 2022,


29 www.queensjournal.ca/story/2022-03-17/editorials/all-war-is-a-disgrace-not-just-europea n-war/. Accessed 23 Mar. 2022. Kudo, Timothy. "The Case for Reparations for Afghanistan." The New Republic, 23 Dec. 2021, newrepublic.com/article/164863/case-reparations-afghanistan. Accessed 18 Feb. 2022. Landay, Jonathan. "Famine may have been averted, but Afghan economic crisis deepens -U.N. envoy." Reuters, 2 Mar. 2022, www.reuters.com/world/asia-pacific/famine-may-have-been-averted-afghan-economic-cr isis-deepens-un-envoy-2022-03-02/. Accessed 8 Apr. 2022. ---. "U.S. to revise Afghan resettlement policy - U.S. official." Reuters, 1 Sept. 2022, www.reuters.com/world/us-revise-afghan-resettlement-policy-us-official-2022-09-01/. Accessed 15 Sept. 2022. Lang, Hardin, and Jacob Kurtzer. "Aid Agencies Can't Fix Afghanistan's Humanitarian Crisis." Just Security, 15 Feb. 2022, www.justsecurity.org/80221/aid-agencies-cant-fix-afghanistans-humanitarian-crisis/. Accessed 23 Mar. 2022. "Let Innocent Afghans Have Their Money." The New York Times, 14 Jan. 2022, www.nytimes.com/2022/01/14/opinion/afghanistan-bank-money.html. Accessed 18 Apr. 2022. Marcetic, Branko. "The Humanitarian Warmongers Couldn't Care Less About the US Sanctions Killing Afghans." Jacobin Magazine, 8 Jan. 2022, jacobin.com/2022/01/afghanistan-sanctions-biden-war-taliban-drought/. Accessed 11 Mar. 2022.


30 Michel, Casey. "America enabled Afghanistan's corruption for years. The Taliban knew it." THINK, 22 Aug. 2021, www.nbcnews.com/think/opinion/america-enabled-afghanistan-s-corruption-years-taliba n-knew-it-ncna1277327. Accessed 18 Mar. 2022. "Nearly 10 million children going hungry in Afghanistan, says NGO." Al Jazeera, 10 May 2022, www.aljazeera.com/news/2022/5/10/nearly-10-million-children-go-hungry-in-afghanista n-says-ngo. Accessed 19 May 2022. Nevett, Joshua. "Afghanistan: UK's withdrawal a disaster, inquiry concludes." BBC, 24 May 2022, www.bbc.com/news/uk-politics-61555821. Accessed 18 Apr. 2022. Nichols, Leanna Shea, "Ignoring the Learning Curve: The Failure of U.S. Foreign Intervention in Chile and Afghanistan" (2019). Senior Theses. 30. https://fordham.bepress.com/international_senior/30 Peters, Michael A. "'Declinism' and discourses of decline - the end of the war in Afghanistan and the limits of American power." Educational Philosophy and Theory, 29 Sept. 2021, www.tandfonline.com/doi/full/10.1080/00131857.2021.1982694. Accessed 18 Mar. 2022. Radio Azadi, RFE/RL. "Escaping Afghanistan: People-Smuggling Thrives On Bribes To Taliban." Gandhara, 27 May 2022, gandhara.rferl.org/a/afghanistan-people-smuggling-taliban-bribes/31872064.html. Accessed 29 May 2022. Rahmani, Mirwais, and Cindy Saine. "Russia Latest Country to Establish Diplomatic Ties With Taliban." Voice of America News, 9 Apr. 2022,


31 www.voanews.com/a/russia-latest-country-to-establish-diplomatic-ties-with-taliban/6521 949.html. Accessed 19 May 2022. Speri, Alice. "HOW THE U.S. DERAILED AN EFFORT TO PROSECUTE ITS CRIMES IN AFGHANISTAN." The Intercept, 5 Oct. 2021, theintercept.com/2021/10/05/afghanistan-icc-war-crimes/. Accessed 3 May 2022. Stanford, Eleanor, editor. "Female Poetic Resistance and the Afghan Landay [Review]." International State Crime Initiative, statecrime.org/female-poetic-resistance-and-the-afghan-landay/. Accessed 18 Apr. 2022. Stewart, Emily. "The history of US intervention in Afghanistan, from the Cold War to 9/11." Vox, 21 Aug. 2021, www.vox.com/world/22634008/us-troops-afghanistan-cold-war-bush-bin-laden. Accessed 12 Apr. 2022. Stewart, Rory. The Afghan Refugee Crisis: How to Resurrect the Global Refugee Resettlement Coalition. Atlantic Council Europe Center, Feb. 2022, www.atlanticcouncil.org/wp-content/uploads/2022/02/The_Afghan_Refugee_Crisis-.pdf. Accessed 24 Apr. 2022. Swope, Peter. "By Freezing and Seizing Afghan Assets, Biden Cements Himself as the Latest Champion of American Imperialism." Brown Political Review, 25 Feb. 2022, By Freezing and Seizing Afghan Assets, Biden Cements Himself as the Latest Champion of American Imperialism. Accessed 11 May 2022. Tharoor, Ishaan. "The Taliban indoctrinates kids with jihadist textbooks paid for by the U.S." The Washington Post, 8 Dec. 2014. The Washington Post,


32 www.washingtonpost.com/news/worldviews/wp/2014/12/08/the-taliban-indoctrinates-kid s-with-jihadist-textbooks-paid-for-by-the-u-s/. Accessed 15 Jan. 2022. ---. "The West has a hand in Afghanistan's bleak state." The Washington Post, 1 June 2022, www.washingtonpost.com/world/2022/06/01/west-has-hand-afghanistans-bleak-state/. Accessed 3 June 2022. U.S. Government Publishing Office. "U.S. LESSONS LEARNED IN AFGHANISTAN." Hearing Before The Committee On Foreign Affairs House Of Representatives, 15 Jan. 2020, www.govinfo.gov/content/pkg/CHRG-116hhrg38915/html/CHRG-116hhrg38915.htm. Accessed 16 Feb. 2022. Van Green, Ted, and Carroll Doherty. "Majority of U.S. public favors Afghanistan troop withdrawal; Biden criticized for his handling of situation." Pew Research Center, 31 Aug. 2021, Majority of U.S. public favors Afghanistan troop withdrawal; Biden criticized for his handling of situation. Accessed 15 May 2022. Whitlock, Craig. "THE AFGHANISTAN PAPERS: A secret history of the war, AT WAR WITH THE TRUTH." The Washington Post, 19 Dec. 2019. The Washington Post, www.washingtonpost.com/graphics/2019/investigations/afghanistan-papers/afghanistanwar-confidential-documents/. Accessed 18 Apr. 2022. ---. "THE AFGHANISTAN PAPERS: A secret history of the war, CONSUMED BY CORRUPTION." The Washington Post, 9 Dec. 2019, www.washingtonpost.com/graphics/2019/investigations/afghanistan-papers/afghanistanwar-corruption-government/. Accessed 21 Mar. 2022.


33

High Stakes: America’s Love and Hate of Cannabis

By Daniel Hernan

Brookline High School, Class of 2023 Brookline, MA

Mentored by: Jennifer Grubb, Teacher Edited by: Rania Dadlani, Kaya Vadhan Reviewed by: Greta Hsu, Robin Goldstein, Joseph DiMento


34 Marijuana is the most widely used federally illegal drug in the United States; 48.2 million people, or about 18% of Americans, used it at least once in 2019. 9 Despite its present day illegality at the Federal level, early American Colonies, including Massachusetts, Virginia, and Connecticut mandated that farmers grow hemp, a plant of the same family, to sustain their booming textile industry.10 Later, in 1839, physician William O’Shaughnessy introduced a cannabis plant with more concentrated levels of tetrahydrocannabinol (THC) to the United States. This strain is responsible for producing psychoactive effects on people who consume it.11 The late 1800s saw a significant increase in the acceptance of cannabis for various medical treatments such as stomach aches and infections, with a majority of pharmacists prescribing it for at least one course of treatment.12 Yet, by the 1910s, aggressive policies targeted the sale of all drugs. Most notably, the Harrison Narcotics Act of 1914 made it a crime to consume opium, heroin, morphine, and cocaine, and created the legal framework for gradually outlawing cannabis possession throughout the US. Though cannabis restrictions were implemented by the US government throughout the 20th century, social movements rooted in nativism, racism, and erroneous fears of moral deterioration were ultimately responsible for the popularization and implementation of these restrictive policies. The five-leafed hemp plant commonly mistaken for modern day weed originated in Central Asia. Colonization introduced the plant to Europe and then to the Americas, with nearly all Spanish and English colonies cultivating hemp for its fibers. These fibers were utilized for rope, sails, and fabrics in the Southwest Spanish Missions. The Northeast also had demand for 9

Center for Behavioral Health Statistics

10

Onion, Sullivan, Mullen. “Marijuana”

11

Desjardins, “6,000 Year History”

12

Onion, Sullivan, Mullen. “Marijuana”


35 hemp as population growth led to a growing textile industry which often relied on the easy-to-grow and widely available hemp plant. Hemp is a strain of cannabis that the US Government states must have less than 0.3% THC concentration. Above this level, cannabis is classified as marijuana. People began to seek out these higher levels of THC in the 19th century as Western medicine began embracing cannabis as a remedy for illness. The increased usage of cannabis in medicine was a factor in the passage of the Pure Food and Drug Act, which required manufacturers to specify ingredients and regulated the previously unchecked industry.13 Then, in 1917, the US Treasury Department expressed concern over “Mexicans and sometimes Negroes and lower class whites” smoking cannabis despite the fact that, by the start of the 1920s, the US had become a net exporter of cannabis to Mexico.14 Nonetheless, cannabis was viewed as a foreign product and it became known as marijuana throughout the US due to its affiliation with Spanish speaking countries. An influx of Mexican immigration during the Mexican Revolution of 1910-1917 further reinforced Americans’ negative attitudes toward cannabis. 15 These factors created fertile grounds for anti-Mexican sentiment to blossom, and in 1929, when the Great Depression began, Americans seemed to have already chosen a scapegoat for the collapsing economy. As economic conditions rapidly deteriorated, a broad nativist movement lobbied politicians to persecute foreigners under the presumption that they were taking jobs from “real Americans”: this newly established rationale provided political support for the sweeping illegality of cannabis across the US. The stock market crash, the collapse of major industries, and skyrocketing unemployment created a large degree of uncertainty and insecurity among 13

Mohebbi, Greenberg, Speir, “Crafting”

14

Waxman, “Surprising Link”

15

Onion, Sullivan, Mullen. “Marijuana.”


36 Americans. The 1930s was a period of tremendous social upheaval. The widespread suffering of Americans drove out immigration activists and ushered in a new era of nativism. Since Mexicans were held responsible for weakening the economy, and they, along with Indians, were profoundly associated with weed, Americans became embittered with the substance as well. Mexicans in particular, even those with American citizenship, were expelled from the US under the superstition that they were causing White America’s grievances. 16 Furthermore, the change from the name “cannabis” to the Spanish word “marijuana” was used to emphasize differences in cultures. The debate surrounding cannabis wasn’t rooted in science and facts. It was rooted in racism. The nontraditional nature of cannabis became associated with a general distrust of minorities.17 Through views of White racial superiority, underlined by derogatory symbolizations of cannabis, a link was constructed between the economic slump and the presence of Mexicans. Particularly, Americans in the South and West sought to distinguish themselves from “dirty” behaviors like smoking weed. Indeed, even the California State Board of Pharmacy wrote of a fear that the recent wave of immigration from India had increased cannabis consumption and that this “very undesirable lot” was “initiating our Whites into this habit.”18 The hypocrisy of this uniquely American reaction is that Mexico had implemented a full ban on cannabis in 1920, long before the US had.19 Evidence from the period indicates that Mexican smugglers bought cannabis at US pharmacies to transport back to Mexico for illegal sale.20 Americans insisted that cannabis 16

Onion, Sullivan, Mullen. “Marijuana.”

17

Goode, “Marijuana and Policies”

18

Waxman, “Surprising Link”

19

Waxman, “Surprising Link”

20

Waxman, “Surprising Link”


37 was a foreign threat, and used it as rationale for the deportation of hundreds of thousands of Mexican-American citizens and otherwise legal immigrants across the Southern Border.21 Policies rooted in lies spread quickly across a prejudiced public, resulting in the violation of rights for millions of racial minorities. Throughout US history, anti-cannabis movements have also found continued support from the perception that America was morally tainted by widespread drug use. Those who saw alcohol and drug use as evil supported the prohibition movement of the early 20th century. As the first commissioner of the US Treasury Department's Federal Bureau of Narcotics, Harry Anslinger stated, "There are 100,000 total marijuana smokers in the U.S., and most are Negroes, Hispanics, Filipinos and entertainers. Their Satanic music, jazz and swing result from marijuana use. This marijuana induces white women to seek sexual relations with Negroes, entertainers and any others."22 He, among others, blamed drug use for the increased acceptance of biracial relationships which was considered sinful at the time. Additionally, directly referencing the Devil while grouping marijuana use with new styles of music and other forms of expression points to the intense moral push back Americans had. It perfectly epitomizes how the response to social change by traditionalists often came at the expense of access to cannabis. Many believed that cannabis was similar and related to the increase in the sexualization of entertainment. For example, the presence of Flapper Girls in jazz clubs was a threat to orthodox Americans in favor of women remaining under the strict control of a patriarch and revealing little when it came to fashion.

21

Waxman, “Surprising Link”

22

Sraders, “History of Marijuana”


38 The rise in cannabis consumption was also grouped with the rise in civil rights reform, an issue many Republican and Democratic conservatives vehemently opposed. Anslinger's impression of cannabis was riveted with nativist and racist bigotry, yet it was widely supported by Americans because of his notoriety as being the figurehead of the US Prohibition movement. By 1931, 29 states had outlawed cannabis. This social reform movement seeped into federal policy as well with the passage of the Marijuana Tax Act of 1937. 23 The new law, apart from outlawing all non-medical uses of marijuana, required all users to seek special approval from the Treasury, pay a tax, and then obtain a stamp to prove legality.24 The first person to be convicted under the new law received a sentence of four years of hard labor, which was a dramatic increase in the severity of sentences for the sale of marijuana. During this period, the name for cannabis further evolved to reflect the newly racist attitudes of the anti-weed movement. “Locoweed” became the commonplace name for weed; when translated to English from Spanish it means “crazy weed,” clearly a derogatory term. The term created a misplaced view that people who consumed cannabis were not of their right minds and therefore moral deteriorates, a notion that persisted into the 21st century. Journalists popularized these terms in the media while also exaggerating the hazards of addiction to favor anti-drug legislation.25 Furthermore, “rumors spread that Mexicans were distributing this 'killer weed' to unsuspecting American schoolchildren.”26 Consequently, a sense of urgency arose which established an unlikely, and diverse political coalition of progressives, the elite, and traditionalists. This coalition joined

23

Onion, Sullivan, Mullen. “Marijuana.”

24

Marshall,”Legalization : A Debate” (31)

25

Marshall,”Legalization : A Debate” (27)

26

Sraders, “History of Marijuana”


39 forces to “cleanse” the US of sins and intentionally ignored the disproportionate effects of these policies on minorities, some going as far as to blame minorities for the persistent use of cannabis. After the Great Depression, a period of passivity ensued for nearly half a century which came to an end during the 1970s when a new anti-drug movement took hold. Stagflation—the rise in prices accompanied by a recession—became the norm and through the 1960s into the ‘70s, crime rates rose, and social reform movements, such as the Civil Rights Movement, implemented structural changes to US society. Many Americans, mostly on the political right, felt threatened by these issues and sought to blame them on a few key problems. Drugs were principally held liable for these and other changes like increased unemployment rates and the rise in anti-establishment, youth counterculture. These problems were highlighted at the federal level by freshly elected President Richard Nixon. President Nixon passed the Controlled Substances Act in 1970 creating a ranking of drugs from most potential for abuse (Schedule I) to least (Schedule V). In June of 1971, President Nixon gave a four and a half minute speech that marked a watershed moment in the popularization of anti-drug measures. Not only did he announce drug abuse as “public enemy number one,” but he also requested and later received 155 million dollars (1.1 billion dollars adjusted to inflation levels of 2022) to “fight” this War on Drugs.27 This short press briefing along with the Federal government's freshly enacted drug reform law drove public sentiment even further in support of anti-drug policy. However, to garner support for the War on Drugs, Nixon and other conservative politicians had to prove that these anti-drug measures would prevent significant societal change in the United States. Accordingly, the War on Drugs took a hard line approach to “solving” drug abuse. For reference, the American Medical Association defined drug abuse as “taking drugs

27

Nixon, Richard. Public Enemy Number One.


40 without professional advice or direction.”28 Many crimes related to drug usage became grouped together with mandatory minimum prison sentences that overwhelmingly incarcerated lower class, urban, Black and Latino Americans. 29 A study published by the ACLU showed Black people are over four times as likely to be arrested for marijuana possession.30 All nuance to drug policy was eliminated from US laws in exchange for universal, extreme punishment. For example, cannabis was classified as a Schedule I drug, which outlawed all usage of the substance for medical purposes and further increased sentencing for crimes of possession, sale, and consumption. Other noteworthy Schedule I drugs included LSD and heroin. For reference, cocaine was considered a Schedule II drug, apparently having lower potential for misuse and greater medicinal applications than cannabis.31 Gradually, the response to truly detrimental and addictive drug abuse became police force and prison time rather than treatment and rehabilitation. Despite politicians’ attitude that all drugs were equally deadly, destructive, and debilitating, cannabis was, in particular, called out by scientists for being incorrectly categorized. In response to Nixon’s “public enemy number one” speech from 1971 and his support of the Controlled Substances Act of 1970, the National Commission on Marijuana and Drug Abuse presented a thorough report called “Marijuana: A Signal of Misunderstanding” to Congress. The commission became known as the “Shafer Commission” because of its chairman: former Pennsylvania Governor and close political ally of President Nixon, Raymond P. Shafer. The “Shafer Commission,” which included medical experts appointed by President Nixon, 28

Goode, “Marijuana and Policies”

29

Laguaite. "Medicine and Health."

30

ACLU, “Marijuana Arrests”

31

Onion, Sullivan, Mullen. “Marijuana.”


41 recommended minor penalties for charges of cannabis possession because of its relatively low addiction levels and near zero overdose rate. Additionally, it advocated for partial prohibition because of its potential adoption as an effective treatment against other medical conditions.32 It's vital to point out that even scientists closely tied to President Nixon sounded the alarm when it came to the excessively harsh policies being implemented. Cannabis was essentially debunked as a threat to society by researchers, yet popular opinion relished the increase of police budgets and arrests. In fact, “Police officers in Texas claimed that marijuana incited violent crimes, aroused a 'lust for blood' and gave its users 'superhuman strength.'”33 Americans were enthralled by the false, dangerous narrative of cannabis, and overwhelmingly supported responding to this apparent threat with police force. Even more alarming was the propagation by government officials of the depiction of drug users as Black, Hispanic, poor, and urban. Consequently, a disproportionate number of those convicted for minor drug usage crimes were Americans of color. In sum, nativism, racism, and fears of moral deterioration fueled misguided public perceptions of cannabis along with popular anti-drug movements, prompting the government to implement restrictions on cannabis. Americans have been “terribly and systematically misled for nearly seventy years”34 concerning cannabis’ effects on human health. The debate on legalization continues to form a significant topic of conversation in politics. A Californian ballot initiative in 1996 approved Proposition 215, also known as the Compassionate Use Act, which legalized medical marijuana use. This exemplified the national reversal of support for the “War on Drugs,” as President Nixon retained support from Californians through both of his election bids just 32

Goode, “Marijuana and Policies”

33

Sraders, “History of Marijuana”

34

Laguaite. "Medicine and Health."


42 twenty five years earlier. In February of 2009, Attorney General Eric Holder announced that raids on medical marijuana clinics would cease.35 By 2015, twenty three states had at least partially legalized cannabis, with Alaska, Colorado, Oregon, and Washington legalizing recreational use.36 Still, in 2016, Attorney General Jeff Sessions implemented stricter policies on cannabis enforcement based on his personal “moral” standing. That year, over 600,000 people were arrested for cannabis offenses, a disproportionate of which were from minority groups. However, this has not changed the upwards trend in support for the legalization of marijuana use which reached 68% in 2021, up from 12% in 1969.37 This growing, widespread bipartisan support almost guarantees that any future ballot measures will ultimately approve marijuana legalization. The facts are clear: Americans want to legalize weed. How soon this happens depends entirely on the political process’ ability to respond to the popular demand. In July, 2022, Democratic Senate Leader Chuck Schumer introduced a bill that would provide the legal framework to reverse marijuana prohibition at the federal level. Sadly, the lack of data available on the long term effects of marijuana use leaves my generation as a guinea pig generation. While marijuana criminalization led to discriminatory policy, it had simultaneously shielded young people from its dangerous affects. Additionally, the potency or concentration of THC in marijuana has increased substantially over the past decades because of the development of more efficient THC extraction technologies. Again, this feeds into the fear that if the country moved towards full, recreational legalization, young people (and their developing bodies) would face the brunt of these effects. The legalization of cannabis remains the most direct way to uproot racist

35

Laguaite. "Medicine and Health."

36

Mohebbi, Greenberg, Speir, “Crafting”

37

Gallup, “Support for Marijuana””


43 policy, yet we must ensure our country’s public health remains at the forefront of these policy changes.


44 Works Cited Desjardins, Jeff. 2019. “The 6,000-Year History of Medical Cannabis.” Visual Capitalist. March 9, 2019. https://www.visualcapitalist.com/history-medical-cannabis-shown-one-giant-map/. Haerens, Margaret, and Lynn M Zott. 2013. Medical Marijuana. Detroit: Greenhaven Press. History.com Editors. 2018. “Marijuana.” HISTORY. A&E Television Networks. November 2, 2018. https://www.history.com/topics/crime/history-of-marijuana. Inc, Gallup. 2021. “Support for Legal Marijuana Holds at Record High of 68%.” Gallup.com. November 4, 2021. https://news.gallup.com/poll/356939/support-legal-marijuana-holds-record-high.aspx. “Marijuana Arrests by the Numbers.” 2001. American Civil Liberties Union. 2001. https://www.aclu.org/gallery/marijuana-arrests-numbers. Marshall, Eliot. 1988. Legalization : A Debate. New York: Chelsea House. Nixon, Richard. 1971. “Public Enemy Number One.” June 17. https://www.youtube.com/watch?v=y8TGLLQlD9M&t=12s. Quality, SAMHSA, Center for Behavioral Health Statistics and. 2020. “Key Substance Use and Mental Health Indicators in the United States: Results from the 2019 National Survey on Drug Use and Health.” Www.samhsa.gov. 2020. https://www.samhsa.gov/data/sites/default/files/reports/rpt29393/2019NSDUHFFRPDF WHTML/2019NSDUHFFR090120.htm. Sraders, Anne. 2018. “History of Marijuana: Origins, Legality and What’s Happening in 2018.” TheStreet. TheStreet. September 24, 2018. https://www.thestreet.com/markets/history-of-marijuana-14718715.


45

Waxman, Olivia B. 2019. “The Surprising Link between U.S. Marijuana Law and the History of Immigration.” Time. Time. April 19, 2019. https://time.com/5572691/420-marijuana-mexican-immigration/.


46

The Implications of Rational Choice Theory on Jury and Criminal Behavior

By Sara Tatke

Homestead High School, Class of 2023 Sunnyvale, CA

Mentored by: Kirk Hinton, Teacher Edited by: Alex Dishnica, Tiffany Wen Reviewed by: Russell Golman, Reuben Stern


47 I.

INTRODUCTION The Jury: an institution developed to maximize the equality of a trial by giving power to

the hands of ordinary people. While many argue that it is a necessity, many posit that juries are inherently unjust, created to disregard minorities and further the superiority complexes of many within the United States. Both sides of the argument have their own strengths and weaknesses, as shown by the research conducted by numerous psychologists exploring the factors that may influence a jury’s decision. One psychological theory, the Rational Choice Theory, postulates that people will act rationally in character, and when making decisions, they will determine the costs and benefits of each action. This theory can be applied in the context of juries in that it suggests there are several factors that influence how juries will make decisions they perceive as rational. Additionally, behavioral psychologists have also determined several ambiguity attitudes which can predict the social behaviors of individuals. Specifically, this paper will explore ambiguity-aversion and ambiguity-seeking behaviors. Both these behavioral attitudes provide a framework by which people make decisions which can be further applied to study how juries make decisions and how individuals may choose to commit crimes. Ambiguity-aversion states that “when there is uncertainty about the probabilities of various outcomes, people may assume that bad outcomes are more likely than they actually are” (Frank). Ambiguity-seeking behavior states just the opposite: people tend to be more optimistic about uncertain outcomes. In this way, juries are impacted by their own ambiguity attitudes, inherent styles of deliberation, and several external factors that ultimately determine how they view the evidence presented to them. Additionally, criminals will act in accordance with their individual ambiguity attitudes as well, and analyzing these attitudes can provide new models of deterrence that states can implement in order to reduce crime rates.


48

II.

BIASES IN JURY AND CRIMINAL BEHAVIOR

A. Rational Choice Theory and Its Broad Implications Rational Choice Theory (RCT) can be applied to both jury and criminal behaviors: there are three broad types that can be considered, each discussing the same idea with slightly different structural changes. In the jury context, RCT postulates that juries will consider the costs and benefits of each decision they can make. Similarly, in a criminal context, RCT states that people will choose to “commit crimes in a rational manner” (Frank). The first type, Narrow RCT, “holds that human agents, when making decisions about their actions, are selfishly oriented, motivated solely by monetary or material costs and benefits, have possessed of all the relevant information in a non-biased way, and choose the best course of action in relation to their goals” (Rutar 301). Narrow RCT is typically the most criticized due to not taking into account the fact that people are also concerned with less tangible goals aside from simply tangible, self-interested goals. On the other side of the spectrum is Wide RCT, which takes a broader approach to human behavior in comparison to Narrow RCT. Wide RCT states that actions can go both ways: self-interestedly and other-regarding. Self-interested behavior can come in many forms, such as caring for monetary or material goods, social status, or other sentiments. People can also act as ‘maximizers’ who “search for optimal course[s] of action” or as ‘satisficers’ who “pick actions they think will serve as not perfect but good enough means for achieving their ends” (Rutar 301). The main idea here is that subjects will all have different behavioral tendencies and intentions, the only constant being that they will all independently choose how to rationally pursue their respective situations. The issue with Wide RCT, however, is that its generality doesn’t offer


49 much guidance in terms of justifying human behavior as answers can be looked at from both perspectives. To mitigate this issue, Amending RCT has been proposed, which combines aspects of the Narrow and Wide RCT in order to account for their respective faults. Amending RCT suggests “to (i) assume self-interest, at least as an orienting starting point, and to further posit more specifically (ii) that people aim to achieve two more or less universal self-interested goals: securing or increasing their material well being and securing or increasing social recognition” (Rutar 302). As a result of these assumptions, amending Rational Choice Theory encompasses the largest portion of the population’s behavior through its use of self-interest as a starting point in addition to accounting for some rational goals pursued without self-interest. Thus, this form of Rational Choice Theory can be applied to the majority and generally can be used in regard to predicting decision-making. It holds that there are several factors that ultimately determine how humans choose to make decisions and therefore implies that juries and criminals can be examined more closely in order to allow for fairer trials and ways to deter crime. B. Jury Decision Making and Its Influencing Factors The hope is that by closely examining external factors that may affect how jurors make decisions, conclusions can be drawn to make way for advancements in equity of the judicial system. Jury decision-making is remarkable in that it places such a large amount of trust and power in the hands of ordinary citizens. However, with this power comes the question of whether the jury has arrived at the right verdict. To psychologists, this question has relevance in regard to a variety of concepts, including persuasion, group behavior, and memory. Psychologists also take particular interest in factors that may influence juries since, as stated in Rational Choice Theory,


50 individuals will determine what decisions to make based on which choice benefits themselves the most. Taking that into account, the most important factors of jury performance can be assessed in three different categories. The first category is comprehension, which looks at the extent to which juries have comprehended the instructions given to them by the judge. “Jurors’ comprehension—especially of judges’ instructions—is generally poor. Performance varies depending on the subject matter and testing format, but figures under 50% are not uncommon. Such findings have led the American Bar Association to advocate rewriting instructions, an effort that many jurisdictions have undertaken” (Bornstein and Greene). This shows that comprehension can be a key factor in affecting jury decisions, as whether or not they comprehend the information given to them will play a role in how they ultimately decide to judge the evidence they see at hand. This also suggests that new implementations can be made to bridge this divide, where juror instructions can be simplified as best as possible in order to avoid misinterpretations. The second category is reliance on evidence, which essentially suggests that jurors tend to remember information consistent with their verdict bias, similar to universal decision-making processes. It is important in this category to consider questions such as, “do [jurors] use evidence they are supposed to use and ignore information they are supposed to ignore (often referred to as ‘‘extralegal” evidence)? Do they discriminate among plaintiffs differing in injury severity, eyewitnesses with good (vs. poor) opportunities to observe a crime?” (Bornstein and Greene). It has been revealed that “findings on these questions are generally more positive than negative,” indicating that implicit biases will automatically have an effect on juror decision-making, conscious or not (Bornstein and Greene). If a juror has already internally determined which side they personally favor, they may tend to only recall information within the trial that supports this


51 bias, and by ignoring contrary information, may fail to conduct a holistic evaluation of the case at hand. The third and final category is comparison to expert decision-makers, meaning how jurors will use perceived credibility or tangible credentials to impact their final verdict. In specific, “jurors attend to peripheral cues associated with the evidence, such as the perceived credibility of a lay witness, the credentials of an expert witness, or the attractiveness of various legal actors” (Bornstein and Greene). Along with these biases, “other heuristics, including the hindsight bias, counterfactual thinking (considering alternative outcomes), availability (relying on how easy it is to retrieve information when making judgments), and representativeness (over attending to salient features) have also been implicated in juror decision-making outcomes,” all of which fall under the broad category of comparison to expert decision-makers may also impact how juries make decisions. (Feigenson). In addition, the emotions or moods of jurors can affect how they review information. Research has shown that jurors may unconsciously construe evidence or process information that is consistent with their emotions, which can ultimately affect their verdict preference. These cues and biases show that there are a variety of factors in relation to comparison of decision-makers that could potentially contribute to a jury’s decision, including perceived credibility, hindsight bias, availability of information, and others. Ultimately, the category of comparison to expert decision-makers and biases that fall under it highlights the need to determine what the specific comparison factors are. This can be done through conducting target studies towards credibility or various other factors of comparison, thus helping to prevent unjust trials. Psychology and Rational Choice Theory both show how juries will be impacted by various external components that can ultimately hinder their ability to look at things from a


52 holistic perspective. Broadly, these external components can be defined under jury comprehension, reliance on evidence, and comparison to expert decision-makers. These factors stress a major flaw in the US government as many of these factors are currently present in the governmental structure and, therefore, place emphasis on making changes in order to account for the respective flaws. C. Ambiguity Attitudes as They Relate to Juries and Criminals In addition to external factors within the courtroom, internal behavioral tendencies, known as ambiguity attitudes, can also impact one’s decision-making. These ambiguity attitudes can be explored in relation to jury and criminal behavior. There are two major behavioral anomalies that can be looked at in the criminal and jury behavior context. Both provide reasoning as to how juries come to their final decision as well as what decision-making processes people use when committing a crime. The first behavioral anomaly is ambiguity aversion which “occurs when a person conducts cost-benefit analyses with incomplete information about the probabilities of various outcomes, like detection and punishment. Rather than relying on unbiased estimates of the probabilities, people will often make pessimistic predictions due to their distaste for uncertainty” (Frank). Ambiguity aversion tells us that when there is uncertainty regarding an outcome, people exhibiting this behavior tend to assume more negative outcomes than what reality suggests. The second ambiguity attitude is “ambiguity-seeking behavior, [which] is the exact opposite of ambiguity-averse behavior. When ambiguity-seeking individuals make a cost-benefit analysis using incomplete information regarding the probabilities of future events, they rely on an optimistic estimation rather than an unbiased estimation, overweighting the probability of a positive outcome due to their preference for the unknown” (Frank). Individuals with


53 ambiguity-seeking behaviors will thus have more positive outlooks on ambiguous situations, which, like ambiguity-averting behavior, can be an impacting factor in the jury context, for better or worse. In terms of grouping individuals to either ambiguity-averting or ambiguity-seeking, most will not exclusively be part of one side and rather will exhibit each behavioral characteristic depending on the situation. “When facing a low probability of a gain, people tend to be ambiguity seeking, and when facing a high probability of a gain, they tend to be ambiguity-averse. While the underlying probability at which individuals switch from ambiguity-averse to ambiguity-seeking likely depends on the underlying circumstances, Viscusi and Chesson estimate that people become ambiguity-seeking when the underlying probability of a loss exceeds fifty percent” (Frank). Essentially, one’s behavior in ambiguous situations depends on the probability of gain. In situations with a lower probability of gain, individuals tend to exhibit ambiguity-seeking behavior, whereas a higher probability of gain indicates more ambiguity-averse behavior. In relation to juries, the stake of a trial can impact the way a jury decides on an outcome. In addition, the amount of gain or loss an individual juror may see in the ambiguous situation could ultimately play a role in how they view the evidence. With respect to criminals, when someone considers committing a crime, the higher the probability of gaining in an ambiguous situation, the more individuals will view the situation in a negative manner. D. Structural Changes and Implementations to Government Ambiguity attitudes affect how individuals will choose to act, and depending on the context of the situation, someone may exhibit a certain type of ambiguity attitude. This is


54 important as the ambiguity attitudes of jurors and criminals alike may vary depending on the situation at hand. Knowing these attitudes and how they may change can be revealed through analyzing an individual's ambiguity tendencies for patterns. Ultimately, ambiguity attitudes provide a framework to crime deterrence: the patterns present from individual behavior in ambiguous situations can be used to take preventative measures towards crime rates by implementing changes according to these attitudes. In addition, ambiguity patterns can also be used to hone in on factors that affect jury decision-making. In this sense, ambiguity attitudes suggest that structural changes can be made to the government in order to prevent crime by predicting the actions of criminals. For the majority, who possess ambiguity-aversion attitudes, states can implement policies that increase the level of ambiguity present in the legal system. “The introduction of ambiguity aversion does not only change [people’s] decision process; it also changes the policies that the state can implement to deter [them]. The state can still utilize the traditional deterrence methods of increasing the probability of detection or the severity of the punishment to deter [people], but it can also deter [someone] from committing a crime by increasing the amount of ambiguity surrounding detection. For instance, randomizing police patrols might make it harder for criminals to predict the probability of detection and deter them from committing crimes” (Frank). By implementing this change in the government, crime can largely be reduced simply due to behavioral tendencies. Specifically, if the ambiguity of a situation is increased, for example, the detection of a crime, the higher the stakes and potential gain will be, thus making it more likely for an individual to predict a negative outcome. This would then deter individuals from committing crimes due to the situation's ambivalence. Likewise, for jurors, if the potential gain


55 of a case is higher for either themselves or the defendant and thus has higher ambiguity, the juror may fall back to ambiguity-averting behavior as well. Ultimately, the effectiveness of policies implemented depends on the individual ambiguity attitudes that one possesses. “Specifically, [policies will look at] potential criminals that exhibit various ambiguity preferences as well as their various reactions to changes in ambiguity. A policy that increases the ambiguity of detection will succeed in reducing total crime levels as long as the deterrent effect it has on ambiguity-averse individuals outweighs the countereffect it has on ambiguity-seeking individuals. Similarly, a policy that decreases the ambiguity of punishment will succeed in reducing total crime levels as long as the deterrent effect it has on ambiguity-seeking people outweighs the countereffect it has on ambiguity-averse people” (Frank). Thus, there are important considerations to be made before deciding to implement a policy that may favor a certain ambiguity attitude, as it is crucial that any change doesn’t have a countereffect on those possessing the opposite attitude. Ambiguity attitudes tell us that increasing or decreasing ambiguity in situations will play a large role in how an individual chooses to act. This basic principle can be applied in the context of criminals, in which adding or reducing the ambiguity of punishment can be used as a preventative approach to crimes. Additionally, ambiguity tendencies can also be a factor to consider when looking at jury decision-making. Based on both the context of the trial at hand and the behavioral tendencies of the individual, the juror may conduct a rational cost-benefit analysis according to those internal preferences.


56 E. Three Interlinked Problems to Rational Choice Theory Rational Choice Theory, like many psychological theories, isn’t able to provide justification for all types of behaviors. There are several issues of RCT that can be explored—the three major issues being collective action, social norms, and social structure. The first question is that of collective action. “If individuals calculate personal profit to be made from each course of action, why should they ever choose to do something that will benefit others more than themselves?” (Green). Essentially, RCT looks at weighing the costs and benefits of an action before executing the action. With this in mind, it doesn’t make sense for someone to act in a way deemed as self-less, as in those situations, the cost is likely more than the personal benefit the person would be receiving. However, in real life, this has clearly been proven wrong since people will act in altruistic ways. Therefore, there is a question to be considered with regard to what Rational Choice Theory postulates. In order to refute this problem of collective action, the idea of ‘selective incentives’ can be explored. Selective incentives are “private goods” which individuals may receive after making actions to benefit a “collective good” (Green). “Selective incentives alter the rewards and costs in such a way as to make support for collective action profitable” (Green). For example, if someone is considering joining a nonprofit organization dedicated to targeting environmental issues out of selfless desire, Rational Choice Theory may justify this by stating that the potential rewards and selective incentives appealing to the individual, such as planting more trees to increase air quality may be the reason why they choose to do this. Likewise, criminals may choose to commit a crime under the influence of someone else bearing this same intangible external motivations. The second question examines social norms. “Why [do] people seem to accept and to follow norms of behavior that lead them to act in altruistic ways or to feel a sense of obligation


57 that overrides their self interest” (Green). In relation to the previous question’s argument of why someone would act in a way more beneficial to someone else than themselves, this question once again refutes RCT by considering self-less behaviors in which the costs outweigh the potential benefits. Here the idea of moral and social obligations can be considered. If one has an obligation to an organization or individual, they may act in a way deemed altruistic; in reality, the cost of not acting in this selfless manner would likely be worse than the cost to act in a selfless manner due to certain social norms that must be followed. Additionally, “people are willing to incur costs and imbalances in their exchange relations when they are formed into long chains of actions” (Green). In other words, individuals may analyze potential benefits from their actions in the future and therefore could choose to act in altruistic ways, in turn accounting for the question of social norms. The third and final question looks at social structure, specifically, “of how it is possible for an individualistic theory to explain and take proper account of the existence of larger structures” (Green). Existing social structures and norms similarly influence behavior, therefore individual actions cannot be the sole factor used to judge behavioral tendencies. External factors, such as one’s social structure, can influence their actions through internal biases that RCT simply does not account for. For rational choice theorists, social structures are viewed as “chains of interconnected individual actions” that form a cohesive social network filled with various constraints such as social norms and obligations. Essentially, social life is seen as “unintended consequences of individual action,” and therefore, when individuals make choices according to RCT, they may not fully be aware of the constraints at hand (Green). Thus, they are still performing a rational cost-benefit analysis of their actions to the best of their abilities given the knowledge they have. In that sense, actions are still consistent with the main assertions of RCT.


58 These three interlinked factors—collective action, social norms, and social structure—highlight possible issues for RCT as a whole; however, ultimately, Rational Choice Theory’s main assertion still provides justification for the problems at hand. Individuals will use self-interest as a starting point for their actions and will conduct a cost-benefit analysis to make decisions. This point can be applied to the majority of situations in order to look at the impact of external factors and internal ambiguity attitudes on this rational analysis.

III.

CONCLUSION After exploring Rational Choice Theory and various ambiguity attitudes, it can be

concluded that these psychological tendencies impact both juries and criminals, influencing their own behavior. Rational Choice Theory postulates that individuals will act in a rational manner, and the way in which they do this can be affected by external factors. In terms of juries, these external factors can be broadly categorized into comprehension of instructions, reliance on evidence, and comparison to expert decision-makers. These factors can hinder the ability of juries to holistically consider the information in a trial, thus causing biases in how a rational decision is made. In addition to external factors, internal factors such as one’s ambiguity attitude inherently play a role in decision-making. These ambiguity attitudes tell us that both increasing or decreasing ambiguity attitudes in situations play a large role in how an individual chooses to act. These tendencies can be harmful to juries as they can sway their opinion in either direction. However, in terms of criminal activity, it can make it easier for the government to reduce criminal behavior by, for instance, increasing or decreasing the ambiguity surrounding detection. Ultimately, these external and internal factors highlight how easily human behavior can be affected. In the jury context, while trials are meant to be fair and equitable processes, ambiguity


59 attitudes and external factors like comprehension of instructions and reliance on evidence can enact biases, which harm the principles of the court. For criminal activity, internal behavioral tendencies can impact criminal actions. Both these effects emphasize the pressing need for a reduction of external factors that may influence juries as well as for changes in government structure that mimic criminal ambiguity attitudes, thus reducing crime rates.


60 Works Cited Bornstein , Brian H., and Edie Greene. “Jury Decision Making: Implications For and From Psychology .” Association for Psychological Science, 2011. Brabenec, Tomáš and Josef Montag. “Criminals and the Price System: Evidence from Czech Metal Thieves - Journal of Quantitative Criminology.” SpringerLink, Springer US, 4 Feb. 2017, https://link.springer.com/article/10.1007/s10940-017-9339-8. Frank, Hannah. Unambiguous Deterrence: Ambiguity Attitudes in the ..., Vanderbilt Law Review, https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=1069&context=vlr. French, Robert. “Judge Bridlegoose, Randomness and Rationality in ...” JUDGE BRIDLEGOOSE, RANDOMNESS AND RATIONALITY IN ADMINISTRATIVE DECISION-MAKING., Monash University Law Review, https://www.monash.edu/__data/assets/pdf_file/0007/1382335/01-French.pdf. Green, Donald P., et al. Pathologies of Rational Choice Theory: A Critique of Applications in Political Science, Yale University Press, New Haven, Conn, 1996. Han, Yuhwa. “Deception Detection Techniques Using Polygraph in Trials: Current Status and Social Scientific Evidence.” Deception Detection Techniques Using Polygraph in Trials: Current Status and Social Scientific Evidence, Addleton Academic Publishers, July 2016, https://addletonacademicpublishers.com/contents-crlsj/649-volume-8-2-2016/2725-decep tion-detection-techniques-using-polygraph-in-trials-current-status-and-social-scientific-ev idence. Jervis, Robert. "A New Science of Politics?" The Wilson Quarterly, vol. 24, no. 1, winter 2000, p. 71. Gale In Context: Opposing Viewpoints,


61 link.gale.com/apps/doc/A59227649/OVIC?u=cupe16240&sid=bookmark-OVIC&xid=c6 1fc187. Accessed 6 Mar. 2022. Paternoster, Ray, and Greg Pogarsky. “Rational Choice, Agency and Thoughtfully Reflective Decision Making: The Short and Long-Term Consequences of Making Good Choices Journal of Quantitative Criminology.” SpringerLink, Springer US, 10 Mar. 2009, https://link.springer.com/article/10.1007/s10940-009-9065-y. Roberts, Anna. “(Re)Forming the Jury: Detection and Disinfection of ...” (Re)Forming the Jury: Detection and Disinfection of Implicit Juror Bias., Connecticut Law Review, Jan. 2012, https://opencommons.uconn.edu/cgi/viewcontent.cgi?article=1144&context=law_review. Rutar, Tibor. “For an Integrative Theory of Social Behaviour: Theorising with and beyond Rational Choice Theory.” Journal for the Theory of Social Behaviour, vol. 49, no. 3, 2019, pp. 298–311., https://doi.org/10.1111/jtsb.12204.


62

The U.S. President: Leadership Styles in American Politics

By Haley Kleinman

Orange County School of the Arts, Class of 2024 Santa Ana, CA

Mentored by: Rachel Katzin, JD Candidate Edited by: Tiffany Wen, Ethan Leung Reviewed by: Anthony Fowler


63 I.

INTRODUCTION The United States has rapidly developed since independence, adapting to changing

conditions to protect its democracy. At the forefront of the efforts to strengthen the nation are the leaders that guide its people forward through time and conflict: the presidents. As America changes, presidents choose the most effective leadership style for their circumstances. This paper will comparatively analyze the leadership of four of the most popular past US presidents, in order to determine their commonalities and differences in creating their notable leadership styles. These presidents are George Washington, Abraham Lincoln, John F. Kennedy, and Barack Obama. First, their styles will be assessed individually by considering their three most prevalent traits through the lenses of pragmatic and charismatic leadership. They will be evaluated by their choices and contributions in foreign policy, speeches, wartime direction, and public communications. Then each president’s term will be compared within each category of leaders, and finally, a conclusion will be drawn as to which style is most successful and how future political leaders can reflect on the terms of these past presidents to craft the most useful style for themselves. Although there are four primary types of leadership—interpersonal, charismatic, deliberative, and creative—those styles overlap (Simonton 125-127). For example, creative and charismatic leadership score similarly in their lust for achievement and personalized goals (129). Additionally, deliberative and interpersonal styles are bound together by their objective of uniting a nation around a common goal (130). For the sake of simplicity, this paper will analyze two overarching styles: charismatic leadership and pragmatic leadership, which group the creative and charismatic styles under charismatic leadership and the interpersonal and deliberative styles under pragmatic leadership (130).


64 This deep dive into presidential leadership will cover the successes and failures of past terms by highlighting the efficacy of each style, personalized by the four presidents. Nations rely on their leaders to make the right choices for the sake of a better future and by understanding the most effective way to unite a group, a president can determine how to positively transform their country.

II.

PRAGMATIC LEADERSHIP Pragmatic Leaders are set apart by their use of diplomatic communication. Their

strengths specifically lie in the “knowledge of practical, day-to-day problems that people and organizations face and a focus on identifying cost-effective solutions that address functional needs” (Anderson and Sun 80). Additionally, “pragmatic leaders [a]re the most flexible and able to work with other leader types when it [comes] to problem solving” (80). Presidents with a pragmatic leadership style have a thorough understanding of the world around them and approach their circumstances with a level head, not impulsivity or rashness (80). In this section, the presidencies of two pragmatic leaders will be assessed: the presidencies of George Washington and Abraham Lincoln. A. George Washington 1. Morality While extensive education is a priority for most positions of power, Washington made up for his lack of traditional schooling with his morals and clarity of thought (Impact). He possessed an innate sense of direction, rooting his decisions in his “ambition, love of detail, patience, determination,” and responsibility (Stazesky). His leadership, founded in consideration and honesty, set him apart and helped convince the nation of his ability to lead it to independence.


65 He demonstrated civil leadership values as General of the Continental Army. Washington refused to take advantage of civilians, instructing his soldiers to prioritize the space and privacy of citizens when gathering resources even if it reduced the amount collected (Stazesky). Washington knew that by putting dignity above greed, he could establish mutual respect between the developing government and the American people. However, he was known to be determined, using the strategy of “guerrilla warfare, in which stealthy hit-and-run attacks foiled British armies used to close-formation battle-line warfare” (History). Washington understood when to push and when to hold back, maintaining his values while making brave choices in combat. Through this, he emphasized both reason and practicality in his leadership. Washington also empowered the nation with his speeches. In the First State of the Union on January 8, 1790, he said that the government would contribute “by teaching the people themselves to know and to value their own rights; to discern and provide against invasions of them; to distinguish between oppression and the necessary exercise of lawful authority” (Hillsdale). He frequently referenced the Constitution and allowed the law to coincide with his own values, creating a presidency rooted in nationally agreed-upon morals, as well as some of his own. However, Washington’s morality could sometimes hide the fact that, when it came to technicalities, he fell short. Although he was a passionate leader, his military choices were sometimes unnecessarily perilous, and when he led his troops to New York in 1776, he risked the lives of every soldier after defeat (Britannica). These moments contradicted his usual caution, and due to the harm to his troops, proved to be an inadequate military method. Despite his losses, Washington’s missteps did not taint his reputation largely because of his dedication to his soldiers.


66 2. Humility Washington never desired awards for his actions or work, as his goals were not personal (Impact). In fact, “he had to be persuaded to accept the presidency. His goal was to achieve his vision for the good of everyone, even if no one ever recognized that he was the driving force behind the vision” (Impact). His lack of interest in power was what made Washington alluring to the public. Washington appeared selfless, making him the seemingly best candidate for president, simply because he did not crave power. After selecting him, the people trusted that he would not abuse it. Humility caused Washington to reject the pull of greed. He “recognized the structural importance of leaving office willingly. He knew that Americans needed to learn how to elect, transition, and inaugurate a new president” (Chervinsky). When helping to establish the system of presidential office, he envisioned a nation where people had a say in their future. In his 1796 Farewell Address, Washington announced, “in situations in which not unfrequently want of success has countenanced the spirit of criticism, the constancy of your support was the essential prop of the efforts, and a guarantee of the plans by which they were affected” (Hillsdale). By not accepting credit for his accomplishments, Washington truly placed the power in the hands of the American people, convincing them of their potential while simultaneously building his reputation as a selfless leader—a Father of the nation. 3. Unity A pragmatic leader is both unifying and visionary. A unifying leader is one that knows how to bring people together during turbulent times. A visionary leader is someone that “has clear goals and never wavers from those goals, even if they cannot be achieved in the short term and designs his organizational culture to realize his vision by making it a shared vision of all the


67 members of the organization” (Impact). Washington had one vision: to unite his country after winning the war against Britain. Even as a young soldier, it was his extraordinary vision that earned his colleagues’ support. During war, when soldiers with short-term enlistments wanted to quit, Washington persuaded them to stay by convincing them of his vision and to believe in him (Impact). At the Battle of Monmouth, “American troops were in retreat until Washington took control and stopped the retreat, leading to the retreat of the British troops to New York. The entire group, again, followed his vision because they trusted him” (Impact). Not only did he possess respectable attributes, but he also set up a vision for the nation, one that inspired people to follow his lead. It was this quality that made him the necessary choice as first president and a highly admired leader. To be a great politician, one must utilize various professional and public opinions. During the drafting of the Constitution, “Washington always looked to the ideas of others, empowering them to share and contribute, while never wavering from his vision” (Impact). Similarly to Kennedy and Lincoln, Washington took into account others’ thoughts and made a point of listening to them without ceding his initial goal.38 Washington showed strategic compassion through his process as a pragmatic and visionary leader, as he knew just how to create an environment conducive to his vision (Stazesky). This allowed him to form a foundation people could rely on in times of crisis. Washington’s ability to unite groups by utilizing practicality and dedication carried through to his presidency. During his Newburgh Address, he told the audience, “Gentlemen, you will permit me to put on my spectacles, for I have not only grown gray, but almost blind, in the service of my country” (Hillsdale). Washington demonstrated how much he cared for the 38

See Section IV.A. for further discussion of Kennedy and Section II.B. for further discussion of Lincoln.


68 country, how much he had sacrificed in pursuit of democracy. Citizens and soldiers rally around leaders who sacrifice for them and dedicate themselves to the country, not just through words but through actions, as well. B. Abraham Lincoln 1. Strategy Lincoln had a rare sense of strategy and mental acuity (Forbes 55). As a wartime leader, the ability to pick up on even the most minor details was essential. Lincoln accomplished his goals through non-violent persuasion. His objective was to push without harassing (Eder). An example of this is when he began the fight for the abolition of slavery. Lincoln tried to entice citizens to reject the Confederate stance by offering better access to education for their children (Eder). When that failed, Lincoln moved onto the next strategy: to show Union strength by continuing construction of the “people’s house,” the Capitol, while also increasing the strength of the Union Army (Eder). His use of peaceful tactics was a strategy to prevent aggressive rebellion, and one that made him memorable. As a military leader, Lincoln demonstrated deliberation prior to the confrontation of others’ mistakes. He once said, “[a] drop of honey catches more flies than a gallon of gall”, meaning that kindness is the key to success, and that criticism only pushes people away (Abraham). Lincoln ensured that his feedback was constructive, so that the listener felt motivated rather than defensive. For example, during the Civil War, the Union army was defeated left and right, and Lincoln had to change the aggressive behavior of General Hooker. Lincoln could have yelled at him, or fired him, but instead, through a more diplomatic approach, offered an inspiring message, characterized by the personable communication represented in pragmatic leaders:


69 Lincoln wrote: “There are some things in regard to which I am not quite satisfied with you…. You are ambitious, which, within reasonable bounds, does good rather than harm. But I think that during General Burnside’s command of the army you have taken counsel of your ambition and thwarted him as much as you could, in which you did a great wrong to the country and to a most meritorious and honorable brother officer…. Beware of rashness, but with energy and sleepless vigilance go forward and give us victories….” (Carnegie 219–220). Ending with a call to action gives the letter a sense of optimism, a solution, instead of any lingering anger surrounding the issue. Lincoln employed a unique system for military guidance, as he chose generals with more political experience than military, trusting them to use their knowledge of politics to make effective decisions (Edu). Despite the backlash he received for that decision, “the appointment of political generals with mediocre military records set a tone for the enhancement of the national strategy with the help of mobilizing their electorate to support the efforts of the Union during the Civil War” (Edu). The visible achievements of Lincoln’s methods proved his work had meaning and could reach previously unattainable success. Additionally, Lincoln implemented a workplace strategy that not many had the courage to do. While most political leaders at the time preferred their enemies to be far away, Lincoln kept his rivals close. During the beginning of his term, “Lincoln brought Salmon Chase into his cabinet…knowing full well that Chase craved the presidency with every fiber of his being and knowing that Chase was undermining him” (Coutu). By keeping his greatest rival close, Lincoln could not only learn from Chase, but could also combine his and Chase’s skills and strategies to lead even more effectively. 2. Decisiveness Lincoln learned to be precise with his goals, which contributed to his skill as a wartime president. As anti-slavery views increased, Lincoln made a change: “instead of pleasing the


70 Northern Democrats and the Border States…[he] issu[ed] the proclamation of freedom for slaves in rebellious states” (Edu). The strength of his decisions convinced the public of the legitimacy of his goals. When giving a speech to the members of the cabinet, Lincoln talked about the necessity of acting deliberately, how “decisive and extreme measures must be adopted” (Edu). Furthermore, Lincoln saw the freedom of slaves as an essential step in saving the warring nation (Edu). He was willing to take risks if he knew it would bring him closer to his goals. During his Civil War leadership, Lincoln utilized such strong direction that he even encountered claims of dictatorship (Owens 5). Even “defenders of Lincoln admit that he overstepped constitutional bounds by declaring martial laws, arbitrarily arresting civilians and trying them by military tribunal, and shutting down opposition newspapers. After the war, the Supreme Court criticized many of these measures in Ex parte Milligan” (18). However, Lincoln believed his extreme actions to be necessary for limiting the chaos of war. His steadfast sense of instinct contributed greatly to his success. 3. Relatability Lincoln can further be characterized by his ability to relate to people with his humor, wit, and humble upbringing. In a sense, “Lincoln was the first true humorist to occupy the White House” (Sandburg 561). To execute his ambitious agenda, Lincoln had to form a connection with the public. His good nature drew doubtful people in and helped preserve his repute during the tribulations of war. Lincoln’s humor also contributed to his ability to be a motivational military leader despite his inexperience. However, his eloquence could be used for more strategic purposes as well. Lincoln “used stories as a laugh cure for a drooping friend or for his own melancholy, yet also to clinch an


71 argument, to lay bare a fallacy, to disarm an antagonist, but most of the stories were ‘labor-saving contrivances’”, meant to achieve quick solutions to any dispute (Sandburg 562). Through his deliberative approach to communication, Lincoln was able to win over a crowd and exhibit masterful understanding of his audience. His congeniality came in handy during military management, too. Lincoln has been painted as a soft-spoken man that used his words wisely and sparsely (Edu). However, sometimes, less is more, and Lincoln proved that few powerful words can be much more influential than many ineffectual ones. In fact, his reserve and consideration of every word improved his military reputation. He started off the Civil War with a lack of military experience but instead of fretting, mocked himself for it, showing maturity by joking, “[d]id you know I am a military hero? I fought, I bled, and came away after charges upon the wild onions and a good many bloody struggles with the Musquetoes” (Edu). Lincoln’s jest helped others see past his errors and initial ignorance by humanizing himself. Lincoln “transformed the President's role as commander in chief and as chief executive into a powerful new position, making the President supreme over both Congress and the courts” (Burlingame). Had he not expressed an adept understanding of communications, this would not have become a reality. Lincoln’s celebrated voice and achievements in war were credited to his skill in uniting the most different of people by choosing patience rather than violence and seeking out each group’s true vision for the nation (Burlingame). He was so successful that scholars believed “[n]o President in American history ever faced a greater crisis and no President ever accomplished as much” (Burlingame). The resulting trust Lincoln built with America overpowered his shortcomings during his presidency.


72 III. PRAGMATIC LEADERSHIP COMPARISON The most striking parallel between these two pragmatic leaders is their emphasis on diplomacy in military management. Washington clearly instructed his subordinates to act kindly toward the townspeople during war while Lincoln approached criticism with a restorative, and often very positive, light. In doing so, these leaders fostered a sense of dignity and encouraged their soldiers and generals to become better people. In turn, the militia gained respect for each president and strengthened their alliance. Additionally, these leaders knew when to listen and when to go with their gut, upholding firm morals for the benefit of the nation. Future leaders can reflect on these two successful tactics by implementing them into their own personalized leadership style in order to maintain strong relationships with the American people and to establish reliability.

IV.

CHARISMATIC LEADERSHIP A charismatic leader is recognized by “personal magnetism and visionary appeals [that]

cause followers to identify personally with their leaders, and internalize their leaders’ goals, values and beliefs, resulting in followers desiring to emulate the[m]” (Anderson and Sun 77). The charismatic leader ‘‘conveys [a] clear-cut, highly visible personality,’’ is a ‘‘skilled and self-confident negotiator,’’ ‘‘uses rhetoric effectively,’’ and is a “dynamo of energy and determination” (Simonton 126). In this section, the presidencies of charismatic leaders John F. Kennedy and Barack Obama will be evaluated.


73 A. John F. Kennedy 1. Charm Something that set Kennedy apart throughout campaigning was his youth, which he used to gain popularity with the people. Kennedy took advantage of the new media, "a strategy whereby a president promotes himself and his policies by appealing to the American public for support” (Altschuler 185). Kennedy’s use of media brought his campaign to life and allowed him to win the Wisconsin and West Virginia primaries by appealing to doubtful party leaders (185–186). He knew how to use the media to promote interest in himself to the public using a “mix of attractiveness, relevant message, and voter needs” (Soddu 1). Kennedy understood how to entrance the American people with his voice, using everything he could to draw them in. In 1953, Kennedy was on the Edward R. Murrow Person in Person show, and “a ringing in the background distracted him. He looked over his shoulder, flashed an endearingly sheepish grin and said: ‘Perhaps somebody could answer my phone’” (3). The situation allowed for a moment of unexpected charisma, a moment that would make the country fall in love with the idea of Kennedy as President. The public found him so alluring that after delivering a speech nominating Stevenson, “Kennedy became the party’s attraction and ‘television viewers were favourably impressed with the slender and winsome senator from Massachusetts. He was very soon the most sought after speaker in the Democratic party’” (3). Kennedy made it his mission to win over the American people. His magnetic personality transformed him from merely a young Senator into an enigma and icon. However, his remarkable charisma doubled as a disguise for his lack of experience. Near the end of the Cold War, “Kennedy gave the green light to an Eisenhower-initiated invasion of the Bay of Pigs in Cuba in 1961. Based on faulty intelligence, the military action, which was


74 carried out by Cuban exiles without crucial air support was a fiasco” (History). Kennedy was not as put together as he led others to believe. Though he knew how to attract a crowd and reinforce his ideas, Kennedy did not have experience in military direction. His charm was powerful, but it could not always redeem him. 2.

Resolve

Kennedy displayed resolve in his military decisions regarding the Cold War. For example, in 1962, Eisenhower assured Kennedy that the invasion would not result in physical war. However, Kennedy did not change his mind and carried through with a blockade (Miller). By using his own judgment, Kennedy demonstrated that he was not afraid to make choices lacking agreement if he thought it would create a long-term solution (Sherwin). A strong president goes with their gut and makes the decision that enforces diplomacy and peace. Kennedy did that, even though it required him to go against his advisors. This ambition and priority of personal goals is similar to the style of Obama, who went into his presidency with clear goals for Obamacare, advocating for them despite pushback.39 Similarly, Kennedy was strong-willed and not prone to compromise. Kennedy’s decisiveness fortified his speeches as well. In his 1960 Presidential Campaign Kickoff Dinner, he said, “I think we can win. I think we will win. I think the American people––after ‘eight gray years,’ to use FDR’s phrase––will know that, for their own future and their children’s future, we must win” (Library). Kennedy told the American people, with confidence, what it would take to succeed and how. He left no room for uncertainty in his speeches, leading listeners to trust his message.

39

See Section IV.B. for further discussion of Obama.


75 3.

Logic

In approaching communication with colleagues, Kennedy was deliberate, particularly during his campaigning process. He “sought help from the science of opinion polling," with extensive surveys "commissioned at great expense to probe areas of weakness and strength, to evaluate opponents and issues, and to help decide on schedules and tactics" (Alschuler 2). At the same time, Kennedy captured his audience emotionally, choosing words that he knew they would respond the most to. Kennedy’s “overriding campaign theme in 1960 was the need to get America moving again. After the seeming stillness of the Eisenhower years, the promise of a society in motion, however vague, was exhilarating” (Soddu 2). Kennedy had foresight and geared his campaign around an inspiring and progressive vision, one that opposed the staid nature of the previous presidency. In doing so, he showed the people what they wanted before they themselves knew. Kennedy’s logic was even more apparent in the steady and pensive nature of his speeches. In a 1960 speech made to gain West Virginia’s support, Kennedy stated: [S]ome clear, practical steps the national government should take to help you in your urgent, immediate difficulties: First, we should set national minimum standards for unemployment benefits, adequate to the economic catastrophe that long term job loss means to a man with a family. In West Virginia, I have heard of men trying to support eight children on $50 a month; unemployment benefits here are lower, compared to wages, than they were 20 years ago. There is only one practical way to [meet] this problem. I am sponsoring legislation right now, against Administration opposition, to set Federal Standards for unemployment benefits (Library). Kennedy provided logical solutions rather than voicing hypotheticals. He announced an economic plan, clearly stating the next steps to amending job loss while acknowledging current struggles. Kennedy understood that the best way to persuade the state was to speak with reason rather than feeling.


76 B.

Barack Obama 1. Authenticity

During Obama’s presidency, he exhibited a key trait of charismatic leadership: authenticity. Authentic leadership stems from “the relationship between leaders and followers” (Campos). Authentic leaders bring forward their own ideology and master intrapersonal and interpersonal relations (Campos). One way Obama established a connection with people was by addressing the public. He “quoted previous US leaders,” which showed that he took the time to learn from the past. It was his close observation of “their leadership approaches that made him outstanding whenever he was to make a leadership decision” (Campos). Though Obama was charismatic and presented personal stories to connect with the audience, he was deliberate. He showed insight, reflection, and honesty; all of which turned crowds in his favor. Obama used direct and open communication in his National Address to America’s Schoolchildren (Wakefield High School, Arlington, Virginia) on September 8, 2009, admitting to the children, I know a lot of you have challenges in your lives right now that make it hard to focus on your schoolwork. I get it. I know what it’s like. My father left my family when I was two years old, and I was raised by a single mom who had to work and who struggled at times to pay the bills and wasn’t always able to give us the things that other kids had (Obama 78). By establishing a link to these children, they could see the president as someone human, with similar experiences to their own. Obama showed not only comfort addressing a large and diverse group of people, but also vulnerability. 2. Optimism Obama was open about the prejudice he faced due to his skin color. To combat that judgment, he appealed to audiences with optimism through empathy and humor. This spirit


77 proved to be one of his defining qualities. For example, “in his tenure there was extensive debate on LGBT rights, he did not fear any controversy but stood for the rights of all Americans regardless of their sexuality” (Campos). Another issue he was persistent about was healthcare, and despite the brutal resistance he faced in creating Obamacare, he was prepared to fight for what he believed the people deserved (Campos). Healthcare was an issue Obama fought tirelessly for, and despite much opposition, he gained respect and admiration for pursuing a goal he hoped would benefit millions of people. Obama had ambitious dreams of peace, especially in terms of foreign and domestic policy. In foreign policy, he wanted to steer away from “un-American” practices of torture (Unger 1). Obama’s voice was hopeful; he articulated his dreams of diplomacy to the people with fervor. In his domestic aspirations, Obama frequently emphasized the community’s involvement. In a 2007 announcement to form a Presidential Exploratory Committee, he said: “Years ago, as a community organizer in Chicago, I learned that meaningful change always begins at the grass roots, and that engaged citizens working together can accomplish extraordinary things” (Obama 22). He provided inspiring insight into his objectives through commenting on his dedication to the community. By showing the audience what he learned as well as the significance of his hard work, he broke down the wall between speaker and listener and appealed to them as a citizen. Obama crafted his messages around his own experiences, transforming his dream into the public’s as well. 3. Persuasion Obama crushed his campaign competitors with his charisma and “although there was little difference between Clinton and Obama on the issues, Obama ran on a theme of change and Clinton on a theme of experience. In a year when the economy was steadily deteriorating, change


78 was the more appealing theme, especially among Democratic voters” (Nelson). With this, Obama combined persuasion with optimism and authenticity, encouraging the American people. Obama knew when he was promoting himself in his campaigns, he was not just promoting his goals but also his personality and morals. In presidential speeches, Obama spoke with passion. In his 2013 Statement on the Affordable Care Act and the Government Shutdown, he noted that “this shutdown is not about deficits, it’s not about budgets. This shutdown is about rolling back our efforts to provide health insurance to folks who don’t have it.… This, more than anything else, seems to be what the Republican Party stands for these days” (Obama 413). His jabs are presented in a way to attract those questioning their stance toward Democratic ideals: through this speech they would see that Obama had their best interests at heart, and, by stopping the Act, one would be preventing others from receiving help. In the same speech, Obama used emotional examples to enhance his argument. He said: Trinace Edwards was laid off from her job a year ago today. Six months ago, she was diagnosed with a brain tumor. She couldn’t afford insurance on the individual market, so she hasn’t received treatment yet. Her daughter Lenace, a student at the University of Maryland, is considering dropping out of school to help pay her mom’s bills (Obama 414). Obama used sympathy and logic to capture the audience after any doubts the opposing party created. By using the reality of someone’s life in his speeches, he touched the hearts of his listeners, persuading them with stunning truth.

V. CHARISMATIC LEADERSHIP PERSUASION Something that made both Kennedy and Obama successful was their confidence. Both leaders utilized speech-making as a vessel for influence and persuasion. From the start of his campaign,


79 by taking advantage of the growing media, Kennedy’s charming reputation preceded himself. The public was aware of his passion right from the start, and allowed the vision of a young, inspired senator to convince them of Kennedy’s potential. During Obama’s term, he understood the power of a personal anecdote—a strategic bridge between speaker and listener. When Obama spoke about his childhood to young schoolchildren, or of his struggles in the twentieth century United States, he breached the mold of “president” and revealed himself as human, an individual that related to a vast majority of the American population. His authenticity accompanied with determination persuaded the public of his capabilities, the same way Kennedy’s magnetism did. In the future, political leaders can use this method of connection, presenting themselves with conviction and compassion to every audience in order to win their approval. In correctly employing the tool of public speaking, a charismatic leader can strengthen their leadership and use their sturdy sense of self to overshadow their areas of weakness.

VI.

CONCLUSION Charismatic leaders achieve their goals through strategic interactions and are skillful

communicators. Pragmatic leaders rely heavily on implementing a broader vision––a goal everyone can gather around. Though both styles are powerful and successful in inspiring hope, pragmatic leaders are the most essential when the country is in need of unity and a clear plan in the face of military conflict. Charismatic leaders are more effective when the country needs an advocate—someone to fight for their specific desires and motivate them through driven speeches. The results of this study suggest that Lincoln has been the leader with the most effective approach, as he has successfully accomplished the most within his term. Many of Obama’s goals


80 were more personalized, making it difficult to gain immense national support. Lincoln was never aggressive in admonishing his opposition, but Obama did sometimes point fingers when Obamacare faced backlash. Lincoln’s strategy was centered around great consideration, being careful to not say anything that would be interpreted as rude, making him likable and a unifier. Washington was more cautious in his war efforts and promoting equality, trying to create a solid foundation for following leaders while Lincoln used that foundation to make large-scale social change in the nation. Because the government system was more established than Washington’s term, Lincoln was able to take more risks. Meanwhile, Kennedy’s goals for international peace and even domestic achievements were often overly ambitious. Despite the hope he symbolized, he made many military mistakes during the Cold War. Lincoln’s achievements and organization through pragmatic leadership can be seen as the most apparent in this research. However, something all four of these leaders had in common was courage. They each held a unique and powerful vision for a future America, despite their different methods of achieving it. Each of them were willing to fight for the rights of Americans and put the people’s desires first. And finally, these presidents were willing to change, to adapt to the world’s desires by listening to those around them. But even as they did, they knew to follow their own instincts. Through analyzing both leadership styles, one thing has become evident: presidents must balance passion and logic to reach their goals, relying equally on both traits to inform their choices and gain support. It is only by looking to the past and understanding the mistakes and successes of previous leaders that future presidents can make the greatest strides toward developing the most effective leadership styles for themselves and the country.


81 Works Cited “Abraham Lincoln's Leadership During the Civil War.” EduFixers.com, Abraham Lincoln's Leadership During the Civil War | Free Essay Example (edufixers.com). Altschuler, Bruce E. “The First Modern Presidential Campaign: Polling the Primary Voters for JFK.” American Review of Politics, vol. 16, 1995, pp. 185–200., https://doi.org/10.15763/issn.2374-7781.1995.16.0.185-200. Anderson, Marc H., and Peter Y. Sun. “Reviewing Leadership Styles: Overlaps and the Need for a New ‘Full-Range’ Theory.” International Journal of Management Reviews, vol. 19, no. 1, 2015, pp. 76–96., https://doi.org/10.1111/ijmr.12082. Burlingame, Michael. “Abraham Lincoln: Impact and Legacy.” Miller Center, University of Virginia, 23 July 2018, https://millercenter.org/president/lincoln/impact-and-legacy? msclkid=79b20ca7aa4411ecb52ad45bdadd323a. Campos, Amy. “Obama: Development of Authentic Leadership.” Leadership, Pennsylvania State University, 21 Nov. 2020, https://sites.psu.edu/leadership/2020/11/21/obamadevelopment-of-authentic-leadership/. Carnegie, Dale. How to Win Friends and Influence People. Simon and Schuster, 1936. Chervinsky, Lindsay M. M. “George Washington: Impact and Legacy.” Miller Center, University


82 of Virginia, 2 Mar. 2022, https://millercenter.org/president/washington/impact-andlegacy. Coutu, Diane. “Leadership Lessons from Abraham Lincoln.” Harvard Business Review, Apr. 2009, https://hbr.org/2009/04/leadership-lessons-from-abraham-lincoln. Accessed 21 June 2022. Eder, Posted byMari. “Lincoln as Strategist: Exercising the Elements of National Power.” War Room - U.S. Army War College, 29 Sept. 2021, https://warroom.armywarcollege.edu/ articles/lincoln-as-strategist/. Forbes, Archibald. “Abraham Lincoln as a Strategist. Part I.” The North American Review, vol. 155, no. 428, 1892, pp. 53–68. JSTOR, http://www.jstor.org/stable/25102408. Accessed 23 Jun. 2022. “George Washington Is Born.” History.com, A&E Television Networks, 16 Nov. 2009, https://www.history.com/this-day-in-history/george-washington-is-born. “Kennedy’s Foreign Policy - Short History - Department History.” Office of the Historian, https://history.state.gov/departmenthistory/short-history/jfk-foreignpolicy?msclkid=58fc1 27fa65b11ec94fee9a6adfd611e. Accessed 22 June 2022. “The Leadership of George Washington - C-Suite Impact.” C, IMPACT Blogs, 19 Jan. 2022,


83 https://www.csuiteimpact.com/the-leadership-of-george-washington/. Nelson, Michael. “Barack Obama: Campaigns and Elections.” Miller Center, University of Virginia, 19 Jan. 2018, https://millercenter.org/president/obama/campaigns-and-elections. Obama, Barack, and Ken Mondschein. Barack Obama: Speeches. Canterbury Classics, 2020. Owens, Mackubin Thomas. “Abraham Lincoln: Leadership and Democratic Statesmanship in Wartime .” Foreign Policy Research Institute, Jan. 2009, pp. 1–37., https://doi.org/https://apps.dtic.mil/sti/pdfs/ADA596602.pdf. “Remarks of Senator John F. Kennedy, Democratic Party’s 1960 Presidential Campaign Kick-off Dinner, Sheraton Park Hotel, Washington, D.C., January 23, 1960.” JFK Library, https://www.jfklibrary.org/archives/other-resources/john-f-kennedy-speeches/presidential -campaign-kickoff-dinner-washington-dc-19600123. Accessed 22 June 2022. “Revolutionary Leadership of George Washington.” Encyclopædia Britannica, Encyclopædia Britannica, Inc., https://www.britannica.com/biography/George-Washington/ Revolutionary-leadership. Sandburg, Carl. Abraham Lincoln: The Prairie Years & the War Years. Galahad Books, 1993. Sherwin, Martin J. “Inside JFK’s Decisionmaking During the Cuban Missile Crisis.” Time, 16 Oct. 2020,https://time.com/5899754/jfk-decisionmaking-cuban-missile-crisis/.


84 ?msclkid=c3d5026fa65c11eca1ff749304c7c7e6. Accessed 22 June 2022. Simonton, Dean Keith. “Presidential Leadership Styles: How Do They Map Onto Charismatic, Ideological, And Pragmatic Leadership?” Multi-Level Issues in Organizational Behavior and Leadership, vol. 8, 2009, pp. 123–133. Soddu, Dr. Marco. “JFK and the Media during His Electoral Campaigns .” Foreign Policy Journal, 8 Dec. 2012, pp. 1–7. Stazesky, Richard C. “George Washington, Genius in Leadership.” WashingtonPapers.org, https://washingtonpapers.org/resources/articles/george-washington-genius-in-leadership/. “Temperance Address.” Edited by Roy P. Basler, Abraham Lincoln's Temperance Address of 1842, 2018, http://www.abrahamlincolnonline.org/lincoln/speeches/temperance.htm. “The Top 5 Greatest Speeches of George Washington.” The Top 5 Greatest Speeches of George Washington | Hillsdale in D.C., Hillsdale College, 16 Feb. 2021, https://dc.hillsdale.edu/News/Latest-News/The-Top-5-Greatest-Speeches-of-George-Was hington/. Unger, David. “The Foreign Policy Legacy of Barack Obama.” The International Spectator, vol. 51, no. 4, 2016, pp. 1–16., https://doi.org/10.1080/03932729.2016.1227914.


85

An Analysis of Ambiguity in Law

By Lale Şevval Göncüoğlu

Tenzile Erdoğan Islamic Girls High School, Class of 2024 Istanbul, Turkey

Mentored by: Elif Demiryürek, Teacher Edited by: Mia McElhatton, Maya Espinel Reviewed by: Laurence Claus


86 Abstract Justice requires precision and accuracy to distinguish between victim and criminal and avoid any one encouraging crimes committed to maintain the social order. Thus, when it comes to ambiguous words in statutes, the precision we seek in law becomes vague and creates loopholes within the legal system. In this paper, I will examine the effects of ambiguity in the legal system through the supreme court case Yates v. United States, including several other supreme court cases, and analyze certain canons that address the ambiguity in the law. In the light of Yates v. United States and the dilemmas Judges faced, I concluded that when it comes to ambiguity, courts should not limit the evaluation of the cases with the word's meaning, but also consider the defendants' intention to avoid encouragements of usage of loopholes. Also, courts should avoid imposing heavy penalties for defendants who might not fully understand the state due to ambiguity, leading to possible overcriminalization. Keywords: Tangible object, Ambiguity, Laws, and legislations, Supreme Court


87 I.

INTRODUCTION The leading case, Yates v. United States, demonstrates a defendant’s offense and defense

against an accusation by using a possibly ambiguous word ‘’tangible object’’ and the origins of the code he is accused of committing. What makes Yates’s case significant regarding ambiguity is how he defends himself by pointing out an ambiguous word and the background of the code. Yates was charged with violating 18 U.S.C §1519 by dumping an undersized group of redfish against the inspection’s instructions. He faced with twenty years imprisonment by violating §1519, which states a person will be imprisoned if he ‘’knowingly alters, destroys, mutilates, conceals, covers up, falsified, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct or influence’’ a federal investigation (Yates v. United States, 2015). Yates argued in the court that the language “tangible object” does not include fish. Yates also argued that because the act, §1519, was passed as part of the Sarbanes-Oxley act due to multiple bankruptcies and financial frauds coming into public knowledge in 2002, falsifying or making a false entrance is valid in the case of records and documents but not fish. Therefore, the question regarding ambiguity is what kind of measures the court can take when faced with ambiguity and what needs to be considered in such cases. A. Definition of Ambiguity When it comes to ambiguous words, the first sources applied to consider and evaluate the meaning of the words are dictionaries. Black’s Law Dictionary defines ambiguity as ‘’duplicity indistinctness, or uncertainty of the meaning of an expression used in written instrument’’ (Henry Campbell Black, 1968). Mozley and Whiteley’s define it as ‘’uncertainty of meaning in the words of a written instrument’’ (West & Neave, 1904), and Oxford’s Law dictionary defines it as ‘’uncertainty of meaning’’ (Elizabeth A. Martin, 2003).The only thing they have in common is


88 that ambiguity causes confusion, which necessitates numerous meanings rather than just one. It is also noteworthy to make the distinction between ambiguity and vagueness to avoid any further confusion. In certain ways, vagueness differs from ambiguity. Mainly, vagueness does not specify any particular thing or statement. By saying a word is vague, it is implied that it lacks clarity, is too general, and so forth. In contrast, saying a word is ambiguous; one states that uncertainty comes when the word has more than one meaning. It implies that the word can be interpreted in several ways. For example, ‘’Mary is a successful woman’’ is a vague statement because the question arises of what is accepted as successful, how successful, and compared to who/whom Mary is successful. On the other hand, ‘’I broke the frame’’ is an ambiguous statement since one can ask about the meaning of the frame, which can mean a framework for a pair of eyeglasses, a picture, or even a body part (“Frame” | Definition and Related Words, n.d.). Hence, as seen here, ambiguity allows interpretation to find the right meaning in the given context. Moreover, as will be observed in the case of Yates v. United States, interpretation frequently ignores the goals of the parties since it only concentrates on the words and their meaning. Thus, a method that takes into account the parties' intentions, background information, potential loopholes, and the overcriminalization caused by ambiguity must be demonstrated. B. Ambiguity in Law Certain canons were established to address ambiguity and avoid such interpretation. For example, in Yates v. United States, we see canons that the court applied, including ejusdem generis and rule of lenity. Ejusdem generis states that if statutes list persons or things in general, these can only apply to similar persons and things (The People's Law Dictionary, 2005). Rule of lenity affairs that in case of ambiguity in the statute, the case will resolve in favor of the


89 defendant (Merriam-Webster, n.d). These do not limit the canons that address ambiguity; for instance, some revoke each other's rule, and some are deferences based on case results. Noscitur a sociis, similar to ejusdem generis, is a doctrine that suggests an ambiguous word should be evaluated in the associated context (Merriam-Webster, n.d). Contra proferentem acts opposite to the rule of lenity and states that if the case involves ambiguity, the clause should be resolved against the defender (Oxford Reference, n.d). Furthermore, the two essential deferences for ambiguity are Chevron and Auer deferences. Chevron deference points out that if an issue is implicit, the court cannot substitute its interpretation with the interpretation made by the agency (Legal Information Institute, n.d). Thus, Chevron has two evaluation steps: courts determining whether the intent is ambiguous or not and if it is ambiguous; moving to step two, the court decides whether the congress was explicit or implicit. If the congress is implicit, the agency's interpretation is accepted as binding (Ballotpedia, n.d). In contrast, Auer's deference does not include a two-step evaluation and gives the agency the right to interpret the regulation if it is ambiguous (''Auer v. Robinson'', 2021).

II.

THE CASES APPLIED CANONS

Before examining the applications of these canons and analyzing the Yates v. United States, we will review three supreme court cases that use the canons and deferences we mentioned above. The first case is Deal v. United States. The defendant committed six robberies, using a gun in each of them, and was convicted to a total of 105 years imprisonment under 18 U.S.C. § 924(c), which states that "if a second or subsequent conviction is committed, the person will be sentenced to no less than 25 years of imprisonment" (FindLaw, 2018). The defendant argued that "second or subsequent conviction" stated in §924(c) was ambiguous and requested to invoke the


90 rule of lenity (Deal v. United States, 1993). The so-called ambiguous word "conviction" is defined as "in a general sense, the result of a criminal trial which ends in a judgment or sentence that the prisoner is guilty as charged" by Black's Law Dictionary (Henry Campbell Black, 1968). The definition and the defendant's continuity of his actions after the first one (subsequent five robberies) could not invoke the rule of lenity. Thus, petitioner Deal was sentenced to 105 years in prison in violation of 18 U.S.C. 924(c)(1). In Deal v. United States, we see two crucial things that conclude a case shape around ambiguity: finding the word's definition coherent with the statute and the defendant's actions. Deal v. United States is an example of a case in which the defendant's intent was seen and the court interpreted an ambiguous legislation in a way that eliminated the ambiguity. The second case is the source case of the Chevron deference, Chevron U.S.A Inc. v. Natural Resources Defense Council Inc. The Clean Air Act requires states to implement some standards through individual plans approved by the Environmental Protection Agency (EPA). While state governments monitor and conduct inspections, the EPA reviews these state inspections (Ballotpedia, n.d). The Clean Air Act Amendments of 1977 required the nonattainment states, where air quality is worse than others (Non-Attainment Area, 2018), to regulate "new or modified major stationary sources' ' of air pollution. This allowed the states to adopt the definition ''stationary source'' which explains pollution-emitting devices can be rearranged without applying the requirements if the total emission will not increase (Constitutional Law Reporter, n.d). The court confirmed the EPA's plantwide definition of ''stationary source'' and reversed the case (Legal Information Institute, n.d). In Chevron, the ambiguous word "stationary" was the factor determining the subject of the case, as seen in other case examples. It is also worth noting that, despite the fact that the case does not focus on the


91 defendant's crimes, the ambiguous word "stationary" might be viewed as a loophole because it creates a discrepancy between two separate government statutes. The difficult element for the court was establishing an interpretation as well as a precise definition of "stationary." The Chevron deference was established as a result of the court's decision to concur with the EPA's definition. As previously mentioned, Chevron deference has a two-step evaluation of the ambiguous word in a government agency's regulation based on this case. The significance of ambiguity can be examined in Chevron U.S.A Inc. v. Natural Resources Defense Council Inc, as ambiguity created confusion in state regulation and put an additional requirement for evaluating the ambiguity in the agency's statute. The last case, Auer v. Robbins, which was brought to the Eighth Circuit's attention, established a deference similar to Chevron but for different reasons. Police sergeants and a lieutenant in St. Louis prosecuted their police commissioners for overtime pay under the Fair Labor Standards Act of 1938 (Auer v. Robbins). The respondent put forward 29 U. S. C. §213(a)(1), which states that the provision of 29 U.S. Code § 206, minimum wage regulation, will not apply to ''any employee employed in a bona fide executive, administrative, or professional capacity'' (Legal Information Institute, n.d). The U.S Department of Labor also affirms that overtime payment will be made if the employee (which is defined in §213(a)(1)) works more than 40 hours in a workweek that is also stated in the Fair Labor Standards (FLS) (Department of Labor, n.d). Thus, the respondent argued that they are not required to pay them overtime by pointing the sergeants and lieutenants count within the bona fide executive, administrative, or professional definition. In addition, FLS states that to qualify for the exemption, employees must meet the ''salary basis test''. Employees must receive $684 per week, which is called a salary basis that means an employee regularly receives a predetermined number


92 of wages weekly (Department of Labor, 2019, p.1). In response, petitioners claimed that they could not meet the salary basis test since the Police Department regulations could theoretically reduce their wages (Auer v. Robbins, 1997b). Although the case of ambiguity is not direct here as in other cases, defining the ''employee'' and ''salary basis'' within the legislation was challenged by petitioners, and the court was once again concerned about ambiguity. Auer v. Robbins built the very foundations of Auer Deference, the recognition of an agency to interpret its ambiguous regulations. Unlike chevron, Auer deference only applies to an agency's ambiguous regulation (Ballotpedia, n.d). Each of these cases represents different aspects of ambiguity and the consequences that came with it. It is crucial to understand that ambiguity can be a possible tool to damage the legal system by giving defendants the chance to play with the words and hide their true intentions but also causing to create controversial canons or deferences, as seen in Chevron and Auer. For example, later on, Justice Scalia encouraged the court not to apply Auer deference. Justice Thomas called Auer into question, and Justice Scalia with Chief Justice Robert, indicated the re-consideration of the deference (Simonsen, 2018).

III.

AN ANALYSIS OF YATES v. UNITED STATES Yates v. United States has a uniqueness like Chevron, but in this case, ambiguity does not

question the legislation but questions the code's background and why it passed. Yates's primary defense was built on the Sarbanes-Oxley Act and the origins of 18 U. S. C. §1519. For these reasons, deciding upon the definition of the ambiguous word ''tangible object'' in Yates v. United States was not the only challenge the 11th circuit faced. A. Accounting Scandals and Sarbanes-Oxley Act


93 In 2002, a vast crisis hit Wall Street with the two giant companies' bankruptcy and accounting scandals within them. One of these companies was Enron Corporation, an energy company based in Houston worth around 101 billion dollars (Enron, 2021). What caused Enron's bankruptcy was primarily the "mark-to-market accounting" technique that the company relies on to hide its financial troubles (Bondarenko, 2021a). Mark to market is a technique that adjusts the value of an asset to the current market value and shows the worth of an asset if it's sold today. This can be reflected in the record as good profits even if it is at its lowest level (Amedeo, 2020). In October 2001, Enron announced that it had lost $638 million for the third quarter, and in the following days' government started to investigate Enron's financial reports (Bondarenko, 2021b). As a result, Enron filed for bankruptcy and ceased all its operations in 2007. Another company that shared the same faith with Enron was WorldCom, one of the largest telephone companies in the United States involved in similar activities and filed for bankruptcy in 2002. As a result of these scandals and the bankruptcy of America's biggest companies, Congress drafted several legislations. Michael Oxley introduced the ''Corporate and Auditing Accountability, Responsibility, and Transparency Act of 2002'' and Senator Paul Sarbanes introduced the ''Public Company Accounting Reform and Investor Protection Act of 2002'' (Williams, 2003, pp. 8, 9). Sarbanes-Oxley Act was passed on July 30, 2002. The Sarbanes-Oxley Act states and recognizes crucial regulations, including confirmation of the stated conditions in the financial reports and statements, reports' accuracy, and the requirement of internal controls. If these are not entirely fulfilled, it also recognizes severe penalties, such as 10 to 20 years imprisonment (Corporate Finance Institute, 2020). In addition, 18 U.S.C. section 1519 and followings 1520 was passed as part of the Sarbanes-Oxley Act, enacting penalties for false statements and destruction of evidence. Ron Paul is one of the Sarbanes-Oxley act's critics,


94 despite the fact that it successfully decreased fraud charges in the US. He urges the repeal of monetary and fiscal policies that distort the market and draws attention to the need for fewer acts and preventions. (Haman, 2007). While criticism continues today, the Sarbanes-Oxley Act plays an essential role in America's economy and businesses. In 2015, this vital act will come back on stage in Yates v. United States case, but this time it will be the fish, not the money, that the fraud is committed. B. Crimes and Defenses of Yates Officer John Jones of the Florida Fish and Wildlife Conservation Commission boarded Miss Katie during an offshore inspection. After measuring the three red grouper on the deck, officer Jones found that 72 fish were shorter than the 20-inch mark. According to 50 CFR §622.37(d)(2)(ii), the red grouper must be released if the grouper is less than 20 inches. Therefore, the officer ordered to separate the red grouper until the ship returned to shore. Instead, Yates directed his crew to overthrow the undersized fish (Yates v. United States, 2015). For this reason, Yates was charged with destroying evidence, violating 18 U. S. C. §1519. The code states that if the person "knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence a federal investigation" will be imprisoned no less than 20 years (Crimes and Criminal Procedure, 1994a). Other than §1519, Yates was also charged to violate: 16 U.S.C. §1857, 18 U.S.C. § 2232, and 50 CFR §622.37. Pointing to § 1519's origin as a provision of the Sarbanes-Oxley Act of 2002, Yates argued that §1519's reference to "tangible object" does not apply to fish but only to computers, hard drives that can store the information. Upon this argument, the 11th circuit started discussions on defining the ambiguous word, ''tangible object'' and the origins of 18 U.S.C. §1519.


95 C. Defining Tangible Object Apart from the main code that Yates was charged with, the court also looked at the regulations that came before and after §1519. For example, the title of 18. U.S.C. §1512 is ''Tampering with a witness, victim, or an informant'' and contains regulations and penalties for retaliating against a witness, victim, or an informant; Title of 18. U.S.C. §1520 is '' destruction of corporate audit records'' and 18. U.S.C. §1517 ''obstructing examination of financial institutions'' that is designed for financial fraud and bankruptcy (Legal Information Institute, n.d). Court also examined the Model Penal Code to see how the destruction of evidence was addressed. Justice Ginsburg stated that ''... unlike §1519, the M.P.C. provision did not prohibit actions that specifically relate to records, documents, and objects used to record or preserve information'' (Yates v. United States, 2015, p.17). Thus, Justice Ginsburg points out that the court relies on the principle of noscitur a sociis. Therefore, when the court assessed other codes and the M.P.C., it concluded that the ''tangible object'' should be evaluated in the given context in which fish cannot be falsified, altered but the documents and any other record could. Thus, Justice Ginsburg points out that the court relies on the principle of noscitur a sociis and ejusdem generis. Therefore, when the court assessed other codes and the M.P.C., it concluded that the ''tangible object'' should be evaluated in the given context in which fish cannot be falsified, altered but the documents and any other record could (Yates v. United States, 2015c). Also, related provisions and regulations are concerned with financial matters, as they had a background that dates back to accounting scandals, and the verbs listed in §1519, ''knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record'' cannot be apply anything than the documents, computers, and hard drives.


96 While Justice Ginsburg focused on the ambiguous word in the context of background events, Justice Alito touched on a different aspect of the case, determining the three features of 18 U.S.C. §1519, which are the status list of nouns, verbs, and title. When reviewing the nouns of §1519, tangible objects are similar to records or documents. Next, considering verbs like ''alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry'' apply to a record of the document rather than general items like fish—lastly, the title of 18 U.S. Code § 1519. Destruction, alteration, or falsification of records in Federal investigations and bankruptcy points out file keeping rather than fish (Yates v. United States, 2015d). Justice Kagan, dissenting, stated that ‘’Section 1519 is very broad. It is also very clear. Every traditional tool of statutory interpretation points in the same direction, toward “object” meaning object’’ and points to the fact that the court generally focused on the ordinary meaning (Yates v. United States, 2015, p.15). Although the District Court found Yates guilty of violating §1519, the 11th circuit reversed the case, finding the lower court's decision incorrect, agreed with Yates's argument, and concluded that it would be best to interpret "tangible object" as only applicable to objects used to record or preserve information (Yates v. United States, 2015e). Nevertheless, John Yates was still sentenced to violate §1519 and imprisoned for 30 days by the Supreme Court, establishing a more precise guideline for the lower courts on applying and interpreting 18 U.S. Code § 1519. One of the reasons the court was concerned in defining "tangible object" and looking at the root of 18 U.S.C. 1519 was the equivalent penalty, which is a 20-year imprisonment. The court was concerned about potential overcriminalization based on ambiguity, as well as the notion of sentencing someone to 20 years in prison for dumping fish into the water. As a result, Yates' argument was accepted, and he was fined in accordance with his offense.


97 IV.

CONCLUSION The examples examined, including Yates', demonstrate an important aspect of the legal

order's ambiguity. The meaning of a word is a potent tool that can undermine trust in justice by providing a pathway for criminals as well as overcriminalization due to ambiguity in the law. It has been passed down from generation to generation that every crime has consequences. As a result, it was assured that the social order comprises individuals who follow the laws for the good and safety of society. Therefore, when it comes to ambiguity, which is a tool that can be used to change legislation into personal standards with exceptions for serious offenses, it becomes a threat to society and an exemplary act of these acts. Although Yates v. United States can be considered an exemplary action, the case shows something significant. Crimes do have penalties, but heavy fines for minor offenses create another loophole, which is overcriminalization. Most crimes carry serious penalties, such as jail time, fines, and a lifelong criminal record that can make it difficult to obtain work. That is why the law must be predictable so that anyone may determine whether their behavior is prohibited and decide how to proceed. One of the reasons judges are cautious of ambiguity can be seen here. They may not want to expose the defendant to the heavy consequences that follow a criminal conviction because they are unsure whether the legislation intended to make some immoral conduct illegal. If the legislation is vague, courts may be reluctant to punish a defendant whose acts could not have been projected to break the law. At the same time, judges' leniency in an ambiguous case might provoke public outrage that can inspire legislative reform. In the end, ambiguity is a true dilemma for judges as well as a challenge to the legal order, and one shall see how the legal system may effectively address ambiguity, close the loopholes, and prevent the overcriminalization that comes with it in similar cases featuring ambiguity.


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