George Wythe Review Fall 2018

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George Wythe Review

Volume 10. No. 1 Fall 2018 Patrick Henry College



A PUBLICATION OF THE AMERICAN POLITICS & POLICY PROGRAM OF PATRICK HENRY COLLEGE ________________ Volume 10 • No. 1 • Fall 2018

Editor-in-Chief: Christopher Baldacci Associate Editor: J. Michael Patton Publication Editor: Abigail Carter Research Editor: Marina Barnes Faculty Supervisor: Dr. Michael Haynes

PATRICK HENRY COLLEGE Purcellville, Virginia www.phc.edu Copyright © 2018 ISSN 2153-8085 (print)


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The George Wythe Review is an undergraduate journal dedicated to the integration of faith and reason in American domestic public policy. The editors of this journal recognize that contemporary domestic public policy is navigating the uncharted waters of rapidly advancing technology, an increasingly globalized political environment, and a bureaucratic federal government. The journal is a response to this climate, providing undergraduate students at Patrick Henry College with a venue to engage this climate through quality academic papers. In the vein of the journal’s namesake, the editors are committed to fostering an environment for discussion that enhances the mission of both the American Politics and Policy Program and Patrick Henry College. The George Wythe Review is published twice during the academic year by the American Politics and Policy Program of Patrick Henry College. Essays in the journal do not necessarily represent the views of Patrick Henry College, the editors, or the editorial board. The responsibility for opinions and the accuracy of facts in the essays rest solely with the individual authors. Direct all correspondence to the address below. Patrick Henry College 10 Patrick Henry Circle Purcellville, VA 20132 (540) 338-1776 georgewythereview@students.phc.edu All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means—electronic, mechanical, photocopying, recording, or otherwise—without the prior written permission of the copyright owner. Authors of the respective essays in this publication retain copyright privileges. Copyright © 2018 • Printed in the United States of America.


CO NTENTS ________________ Volume 10 • No. 1 • Fall, 2018

Letter from the Editor

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3 Going Dark: The Ethical Challenges with the FBI’s Going Dark Initiative Adam Johnson This study evaluates the ethical challenges faced by the FBI’s “Going Dark” initiative, which would give law enforcement new capabilities to access private encrypted data in order to thwart terrorist attacks. It finds that the initiative threatens both individual privacy and could expose private users to exploitation.

Starvation of the Spirit: Solitary Confinement and the Eighth Amendment

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Meridian Paulton Solitary confinement has a long history in the United States. However, litigation in recent decades has revealed that highly limited social interactions and reduced environmental stimuli can lead to severe consequences. This study considers the history and modern use of solitary confinement in the United States and whether or not it is constitutional under the Eighth Amendment.

Unlocking the Keystone State: Where and Why Donald Trump Won in Pennsylvania

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Matthew Hoke This study seeks to understand how Donald Trump beat Hillary Clinton in Pennsylvania in the 2016 presidential election by examining where Donald Trump won at the county level. It concludes that Pittsburgh, Philadelphia, and the counties surrounding Philadelphia exhibited historically-consistent percentages for Hillary Clinton while Donald Trump outperformed in the rest of the state’s counties.


Reducing the Abortion Rate: A Search for Effective Solutions

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Jacob Settle Since a complete ban on abortion is unlikely to be implemented as long as Roe v. Wade remains law, this study examines methods to reduce the abortion rate in the United States. This study concludes that certain combinations of policies are effective at reducing the abortion rate and examines the best ways to implement them.

School Choice: Options in American Education

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Ian Frith This study examines school choice policies in light of the process model of policy formation and compares it with Kingdon’s model to examine which model more accurately explains the development of education policy. This study also considers the merits of school choice legislation, finding that school choice is ultimately advantageous because it would effect much-needed change in the public school system.

How the Greenbacks Grow: An Analysis of Agricultural Policy in the United States

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Spencer J. Reeves This study looks at the recent history of U.S. agricultural subsidies and specifically at the Agriculture Reform, Food, and Jobs Act of 2014, which reformed the way that the U.S. handled support for farmers by replacing the direct payment plan with a form of crop insurance. The Act will be analyzed using the “three streams” model proposed by political scientist John Kingdon, the incremental model, and the group equilibrium model.


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Letter From the Editor Dear readers, Whittaker Chambers once wrote that the crisis of the 20th century was the chronic inability of the people to distinguish between reality and unreality, goodness and evil. His words are just as relevant to our current political culture. Our nation seems incapable of discerning truth from error while our leaders struggle to meaningfully promote justice and combat injustice, both at home and abroad. I believe that the George Wythe Review plays a small but important role in changing these attitudes. Our journal trains the leaders of tomorrow to analyze problems deeply and offers insight that is grounded in reality and points towards the good. It has been my pleasure to be a part of this mission for three years. As always, it is a delight to welcome you to this semester’s edition of the journal. Since the spring, our journal has expanded, our staff has doubled, and our online footprint continues to grow. I am so excited about the possibilities of reaching more readers and impacting new audiences. Next semester, the Review will be advanced by longtime staff member Marina Barnes, who will assume my role as Editor-in-Chief. It was an honor to serve on the board of this esteemed publication, and I will miss working with some of the sharpest minds our school has to offer. However, I am leaving the George Wythe Review in capable hands. Their excellence and acumen are evidenced by the quality of this edition—I am confident you will enjoy what you read, both this semester and each semester to come. The journal begins with a study by Adam Johnson on the FBI’s “Going Dark” initiative. He offers a relevant perspective on the ongoing tension between privacy rights and the power of government to protect our national security. Our second study is by Meridian Paulton, a research assistant at the Heritage Foundation and national collegiate moot court champion. She explores the intersection of law and policy as she analyzes the constitutionality and prudence of certain forms of solitary confinement. The third study is perhaps the most substantial quantitative analysis this journal has ever published. Matthew Hoke, a J.D. candidate at the University of Virginia School of Law, examines voting trends in each county in Pennsylvania to discern how Donald Trump won an upset victory in a historically-blue state during the 2016 elections.

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Jacob Settle authored our fourth study, which looks at how various policies might reduce the abortion rate without banning abortion altogether. His paper is relevant both to pro-life legislators in light of Roe v. Wade as well as pro-choice groups looking for policy compromises with social conservatives. The next study is by Ian Frith, who discusses school choice policy. Given Secretary of Education Betsy DeVos’ support for increasing school choice, his research is important for education policy reformers trying to maximize a favorable political climate. Our final study was written by Spencer Reeves, a staff member on the Review. His research into agricultural policy both offers a detailed analysis of the efficacy of various programs and also gives insight into how policy changes and is reformed in the first place. In conclusion, I want to express my gratitude to everyone who has made this journal possible. Michael Patton, Abigail Carter, and Marina Barnes: you have been the best editorial board I could have asked for, and I am so proud of the journal we have made together. I wish you all the best next semester. Thank you to all our new staff editors—all 14 of you! Your commitment and initiative have been invaluable. You all have bright futures. The entire editorial team wants to thank the Leadership Institute and the Collegiate Network, whose partnership has allowed us to work and publish all these years. Finally, I would like to personally thank our faculty sponsor, Dr. Michael Haynes, who cares about the success of this journal and us as students more than any man I have met. Thank you for your sacrifice, your support, and your sense of humor. We would not be where we are without you. Sincerely, Christopher Baldacci Editor-in-Chief

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GOING DARK: THE ETHICAL CHALLENGES WITH THE FBI’S GOING DARK INITIATIVE Adam Johnson Abstract One of the fundamental ethical conflicts faced by the modern intelligence community is the conflict between national security and individual privacy. Recently, the FBI proposed its “Going Dark” initiative, which pushed to give law enforcement new capabilities to access private encrypted data in order to thwart terrorist attacks. This study looks at the history of laws that regulate how the government can monitor private communication and the challenges posed by modern communication. It evaluates the ethical challenges faced by the “Going Dark” initiative and finds that it both threatens individual privacy and could expose private users to exploitation. This study concludes by offering two alternative policies that could accomplish a similar goal with less impact on the rights of Americans. ___________________________________

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Introduction Since its founding, the United States intelligence community has attempted to provide for the national security of our country by intercepting and interpreting the communications of potentially harmful actors. Unfortunately, some of these attempts on behalf of the intelligence community have challenged the civil liberties of Americans. As a result, the United States has been locked in a difficult debate regarding where the line ought to be drawn between national security and personal liberties. Today, the United States government finds itself in a similar situation with the FBI’s proposed “Going Dark” initiative. At first glance, the FBI’s initiative appears quite persuasive—it would extend the legal parameters of U.S. communications surveillance law to stymie the threat of terrorism and further uphold the national security of the United States. However, when analyzed in detail, the proposed initiative also contains a variety of ethical challenges. These ethical challenges include: (1) the negative ramifications for private communication companies, (2) the potential increase in the domestic terrorism threat, (3) the opportunity for international exploitation, and (4) the possibility for abuse. Given the ethical challenges associated with the “Going Dark” initiative, U.S. policymakers face a difficult decision between further promoting the national security of the United States and upholding American civil liberties.

Background: The Government’s Monitoring of Communication The debate over where the line ought to be drawn regarding the monitoring and collection of data from electronic communications is not a new phenomenon. For decades, Congress has passed various bills defining the boundaries of communications surveillance. In order to understand the current ethical challenges associated with the government’s attempts to use communication providers to intercept information for counterterrorism purposes, it is important to understand previous legal precedent regarding government wiretapping and communications surveillance. This section will cover some of the key legislative acts that define the limitations on communications surveillance over the past several decades. The first notable act that established strict guidelines for government surveillance through wiretapping was Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Congress passed Title III in response to several congressional investigations (U.S. Department of Justice, 2013b). These investigations discovered that government agencies had conducted extensive wiretapping without receiving proper legal authorization. Specifically, Title III regulated government technical surveillance in three distinct ways. First, the act prohibited government agencies from intercepting either wire or oral communications without legal authorization.

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Second, it established procedures for government agencies to obtain warrants in order to wiretap identified targets. Finally, Title III regulated how law enforcement could disclose and use the information collected via wiretapping (U.S. Department of Justice, 2013b). The Title III regulations were consistent with previous legal precedent established by the Supreme Court. In Berger v. New York, the Supreme Court concluded that the Fourth Amendment’s protection against unreasonable searches and seizures extended to the interception of communication where individuals have a reasonable expectation of privacy (U.S. Department of Justice, 2013b). Originally, Title III only covered wiretapping of wire and oral communication. However, the regulations within Title III were significantly revised following the passage of the Electronic Communication Privacy Act of 1986. The Electronic Communication Privacy Act (ECPA) further clarifies the regulations of government wiretapping found under Title III of the Omnibus Crime Control and Safe Streets Act (U.S. Department of Justice, 2013b). This act was implemented due to recent technological advancements that took place in the 1980s. For the first time, Congress had to determine how the right to privacy could be applied to new forms of communication such as email, wireless telephone conversations, and conversation data stored on computers. Modern means of communication presented new challenges in the ongoing debate over where to draw the line between personal privacy and national security. In practice, the act extended the regulations regarding the interception of conversations taking place on hard telephone lines to also include information being shared and stored on personal computers. The act further regulated the government’s electronic surveillance of emails, telephone conversations, and electronically-stored data (U.S. Department of Justice, 2013b). Advances in online communication increased the amount of online communication data that could be tapped by the United States government. As these advancements in communication developed, it was determined that some forms of online communication were protected and required a warrant to seize the information via wiretapping. However, certain laws allowed the government to seize stored information that was shared through means of online communication without a warrant. Title II of the ECPA, known as the Stored Communications Act, granted the U.S. government the ability to access various kinds of stored communications without first obtaining a warrant (“Electronic Communications,” n.d.). The following table illustrates which collection actions by the United States government require a warrant (“Electronic Communications,” n.d.).

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Figure 1. Graph of change in commodity outlays by program 1978-2014 (Zulauf & Orden, 2016). In addition to regulating email monitoring and data collection, Title II of the ECPA empowers the U.S. government to collect data and information records from communications providers. Under this statute, the government can compel any communications provider, through the use of a National Security Letter (NSL) or court order, to disclose their records on a given customer (Doyle, 2012). Specifically, an NSL can be used to obtain the name, address, length of time, location of telephone connection (local or long distance), telephone number, network address, and means of payment for communication services from a communications provider on any given customer targeted by the United States government (“Electronic Communications,” n.d.). Any other non-content related customer records can only be obtained through a court order. In 1994, the ECPA was amended by the Communications Assistance for Law Enforcement Act (CALEA), which enhanced law enforcement’s ability to legally intercept or acquire data from telecommunication devices and carriers. CALEA originated from concerns voiced by the Federal Bureau of Investigation (FBI) in the mid-1990’s. In short, the FBI grew concerned that increased use of cellular phones would make the process of monitoring cellular networks of private phone companies slower and in some cases nearly impossible to execute (Kopel, 1998). The goal of CALEA was to increase the effectiveness and efficiency of law enforcement electronic surveillance (Figliola, 2007). The Congressional Research Service best defined CALEA’s goal: “CALEA is intended to preserve the ability of law enforcement officials to conduct electronic surveillance effectively and efficiently, despite the deployment of new digital technologies and wireless services by the telecommunications

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industry” (Figliola, 2007, p. 1). In order to achieve this goal, CALEA required that telecommunications carriers assist law enforcement in performing electronic surveillance on their digital networks. Specifically, CALEA ordered that telecommunication industries design and implement certain surveillance assistance capabilities in their networks that would support law enforcement’s conduct of legal electronic communication surveillance. As a result of CALEA, telecommunications companies were required to have the following capabilities: (1) isolation of all wire and electronic communications of a target transmitted by the carrier within a given service area, (2) isolation of call-identifying information in regards to the targeted communication, (3) the ability to provide intercepted communications and callidentity information to law enforcement upon a legal request, and (4) the ability to intercept a targeted communication unobtrusively so that targets are not made aware of the surveillance of their electronic communications (Figliola, 2007). In order to uphold and protect the privacy rights of individuals, CALEA also required that a court order be presented to any telecommunications company before law enforcement could acquire the collected electronic communication data (Figliola, 2007). The policies regarding government surveillance within CALEA were not initially well-received by the general public. Many Americans concluded that the surveillance capabilities granted by the CALEA statute went too far and threatened individual privacy. Even certain members of the Supreme Court worried that the provisions within CALEA threatened the fundamental right to privacy enshrined in the Fourth Amendment of the Constitution. Justice Thurgood Marshall took issue with the statute when he stated, “Many individuals, including members of unpopular political organizations or journalists with confidential sources, may legitimately wish to avoid disclosure of their personal contacts” (Kopel, 1998, para. 4). Americans were clearly concerned about how far the government would take its new technical surveillance capabilities. The implementation of CALEA and the backlash it received from members of government and the American public further exemplify the ethical difficulty in determining the proper balance between government surveillance and personal privacy. Following the terror attacks of September 11th, the United States Congress passed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA Patriot Act). The Patriot Act was a direct response to the heightened terrorism threat in the early 2000s. As a result, the Act amended various aspects of United States law that dealt with the investigation and prosecution of terrorism. In regards to the monitoring of technical communication, the Patriot Act had one notable impact. The Patriot Act significantly expanded the predicates for intercepting and

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collecting technical communications (“Sunset Provisions,” 2005). Specifically, Section 201 of the USA Patriot Act expanded the provisions within Title III regarding the interception of communication to include the legal wiretapping of crimes relating to counterintelligence and terrorism (“Director Discusses Encryption,” 2005). In essence, Section 201 of the USA Patriot Act brought federal wiretap statutes (such as the ones in ECPA) into the 21st century. Preceding the implementation of the Act, federal law enforcement was unable to legally monitor, collect, or obtain communications data that pertained to any form of terrorist activity (“Sunset Provisions,” 2005). Such legal precedent created a significant gap between government surveillance and national security. Due to such legal practices, intelligence and investigative agencies, such as the FBI, operated largely in the dark when it came to detecting and exploiting crimes pertaining to terror. It was not until Section 201 of the Patriot Act that this gap in intelligence was closed and intelligence agencies were granted the legal capabilities to monitor and investigate the full range of crimes related to terrorism (“Sunset Provisions,” 2005). To date, there is still a political debate regarding the legality of the provisions within the Patriot Act. When it was originally passed in 2001, just one senator voted against the act on the grounds that it significantly violated the civil liberties of Americans. However, in 2015, 77 United States senators voted to modify various aspects of the Patriot Act by implementing a new law titled the USA Freedom Act (Baker, 2015). Specifically, the USA Freedom Act restored several provisions within the USA Patriot Act while simultaneously revoking others. One of the most prominent provisions revoked by the Freedom Act was Section 215 of the Patriot Act, which granted the National Security Agency the capability to collect large amounts of communication metadata (bulk collection) within the United States. Furthermore, the Freedom Act mandated stricter requirements for intelligence agencies seeking to obtain communication data and transactions from private communication providers (Volz, 2015). Despite these regulating provisions within the Act, U.S. intelligence agencies still attempted to push the bounds of the current legal practices regarding communication surveillance. Following the passage of the Freedom Act of 2015, the FBI attempted to extend the bounds of its communications interception capabilities. According to the FBI, modern forms of communication, specifically encrypted forms, presented new challenges to the FBI’s current technological surveillance capabilities and methods. As a result, the FBI called for an amending of the Communications Assistance for Law Enforcement Act (CALEA) to include new provisions granting them the ability to penetrate the encrypted servers of private communication companies (“Going Dark,” n.d.). There is still much debate over the necessity and legality of the FBI’s demands. Private communication companies and various political officials argue that the

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demands of the FBI are unwarranted (Gross, 2015). Conversely, U.S. intelligence agencies, especially the FBI, have asserted that if adequate adjustments are not made to current U.S. technological surveillance procedures, national security will be in jeopardy (“Going Dark,” n.d.).

Research and Analysis Challenges Presented by Modern Forms of Communication

Recent advancements in end-to-end encrypted communication have created a new system of communication that is significantly more difficult to surveil. Due to the leaks produced by Edward Snowden regarding the NSA’s mass surveillance of transmitted communication data, several tech companies have taken a more public role in pushing back against the U.S. government’s encroachment of personal privacy (Brown & Perez, 2014). In September 2014, Apple was one of the first communications companies to program their new operating system, IOS 8, with advanced forms of data encryption. According to their privacy policy, Apple specified that personal data stored and transmitted on communication devices running the IOS 8 software was protected by the user’s private security passcode. Furthermore, Apple’s privacy policy stressed that due to the unique user passcode encryption on each device, it was not “technically feasible” for Apple to respond to government warrants calling for the extrapolation of data from a targeted user’s communication device (Finklea, 2016, p. 5). Along similar lines, Apple has also clarified that “there’s no way for us to decrypt your data when it’s in transit between devices” (Apple Inc., n.d., para. 5). As a result of Apple’s inability to scan or decrypt a customer’s communication data, the company concluded that it would be unable to comply with any wiretap court order (Yadron, 2016). Similar to Apple, Google has also implemented new encryption technology in its communications systems. In November 2014, Google launched its Android 5.0 operating system, which contained default privacy protection settings that automatically encrypted communication data with a secure user password. Moreover, data transmitted on any communication device running Android 5.0 is automatically encrypted with a passcode and can only be recovered when a valid passcode is entered. What makes investigative matters difficult for law enforcement is that Google, similarly to Apple, does not have the passcode to any of the communication data encrypted on their servers (Finklea, 2016). Thus, wiretap orders prove to be considerably difficult to implement on devices running Android 5.0 software. The recent breakthroughs in communication encryption have significantly hindered a variety of national security surveillance operations and investigations.

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In the realm of law enforcement, safety officials have equated the new developments in communication encryption to “a house that can’t be searched, or a car trunk that could never be opened” (Finklea, 2016, p. 6). Currently, communication companies such as Apple and Google are not required under federal law to possess a key to their encryptions. As a result, a significant portion of communication data transmitted through the servers of these companies may not be readily available to law enforcement upon an official request via a court order (Finklea, 2016). As the law stands (specifically in regards to CALEA), telecommunications companies providing broadband internet and VoIP services must be capable of readily assisting law enforcement in the monitoring and collecting of real time communication data. For companies such as Apple and Google, the requirements within CALEA are not applicable to their communication infrastructures. Specifically, Apple’s text messaging system iMessage is not transmitted through broadband or VoIP providers. Therefore, communications taking place within the iMessage system fall outside the legal scope of CALEA (Finklea, 2016). Given the current status of the law, communication companies such as Apple and Google have successfully stymied U.S. law enforcement’s attempts to collect and analyze real time or near real time communication data within their encrypted systems. According to U.S. intelligence agencies, the status quo regarding the conflict between wiretapping and encrypted communication poses a significant threat to United States national security (Homeland Security Committee, 2016). As a result of this determined threat, the FBI has attempted to reform the current mandates within CALEA through its “Going Dark” initiative, in order to better address the gaps between electronic surveillance and encrypted communication.

The FBI’s “Going Dark” Initiative

The FBI’s “Going Dark” initiative is a recent attempt to extend the requirements mandated in CALEA to require internet-based communication providers, such as Google, Facebook, Twitter, Skype, and Blackberry, to reprogram their encryptions within their communication systems to have a backdoor for legal wiretapping. The term “Going Dark” refers to a phenomenon where criminals use encrypted communication to evade being detected by law enforcement (Homeland Security Committee, 2016). The threat of criminals going dark was always of concern to the United States intelligence community. In 2015, the concerns surrounding encryption communication surged following the terrorist attacks in Paris and San Bernardino where it was determined that the attackers used encrypted forms of communication to avoid identification. Today, an increasing number of criminals and terrorists operate in the dark by using end-to-end encryption to conceal their activities, communications, photographs, and records (Homeland Security Committee, 2016). As a result of the

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increasing use of encrypted communication, intelligence officials and law enforcement have stated that their ability to gain access to the digital communications of terrorists and criminals has been significantly hindered. Previous FBI Director James Comey testified before the Senate Judiciary Committee that “[t]here is no doubt that the use of encryption is part of terrorist tradecraft now because they understand the problems we have getting court orders to be effective when they’re using these mobile messaging apps, especially that are end-to-end encrypted” (Homeland Security Committee, 2016, p. 12). Encrypted communication is becoming one of the primary forms of communication for criminals and terrorist organizations. In 2015 alone, it was determined that the perpetrators behind the terrorist attacks in Texas, France, and San Bernardino all utilized various forms of encrypted communication (Homeland Security Committee, 2016). The U.S. intelligence community faces two distinct challenges when it comes to monitoring and exploiting information from encrypted terrorist communications. The first challenge is monitoring, intercepting, and obtaining real-time communications data that is in motion. Data in motion includes realtime communication being transmitted from phone calls, emails, text messages, and chat sessions (“Going Dark,” n.d.). The second challenge concerns monitoring and collecting “data at rest” from encrypted communication devices (“Going Dark,” n.d., para. 2). The term “data at rest” refers to data that is stored on encrypted communication devices such as saved emails, text messages, photos, and videos (“Going Dark,” n.d., para. 2). Both of these forms of data significantly contribute to detecting, identifying, and exploiting terrorist operations in the United States and abroad. However, current practices regarding court orders and warrants have made it increasingly difficult for law enforcement to obtain stored and real-time data transmitted through encrypted communication servers. As a result of the status quo regarding court orders and warrants, law enforcement’s ability to quickly obtain valuable information that could identify terror suspects is rapidly eroding (“Going Dark,” n.d.). In response to their eroding capabilities, the FBI has recently attempted to expand the reach of CALEA to cover encrypted forms of communication. Originally, CALEA mandated that all phone companies conform to wiretap standards for real-time surveillance. In 2005, CALEA was extended to also cover broadband service providers (such as ISPs and colleges). Today, forms of encrypted online communication services such as Google Chat, Skype, Facebook, and Blackberry are not covered by the provisions stated within CALEA (Kravets, 2012). Due to the present state of CALEA, these services are not required to conform to wiretap standards that would improve the effectiveness of law enforcement’s technical communication surveillance. Furthermore, by not having to comply with current

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wiretapping standards, these service providers are often unable to comply with law enforcement surveillance requests when presented with a court order or warrant (Savage, 2011). Due to the increasing use of encrypted communication by various criminal enterprises, the FBI, along with other federal agencies, has concluded that monitoring encrypted communication is a necessary aspect of United States national security. Previous FBI Director James Comey captured this assessment best when he stated, “Unfortunately, changing forms of Internet communication and the use of encryption are posing real challenges to the FBI’s ability to fulfill its public safety and national security missions…we believe [going dark] must be addressed given the resulting risks are grave both in traditional criminal matters as well as in national security matters” (Homeland Security Committee, 2016, p. 10). Government and law enforcement officials are deeply concerned with the present state of U.S. national security. Without the ability to monitor these new forms of communication, officials fear that they may be less able to prevent, investigate, and prosecute criminal activities such as terrorism (Olsen, Schneier, & Zittrain, 2016). The proposed solution for fixing this technological problem surrounding the wiretapping of encrypted forms of communication is to mandate that communication companies must maintain and provide law enforcement access to their encrypted communication servers.

Ethical Challenges Associated With the Going Dark Initiative

The mandates within the FBI’s “Going Dark” initiative have the potential to generate a host of ethical challenges. On its face, the FBI’s initiative appears quite persuasive—extend the legal parameters of CALEA to stymie the threat of terrorism and increase the national security of the United States. However, when analyzed in detail, such a proposition appears to also contain a variety of ethical dilemmas. Specifically, this study identifies four ethical challenges associated with the “Going Dark” initiative: (1) the negative ramifications for private communication companies, (2) the potential increase in the domestic terrorism threat, (3) the opportunity for international exploitation, and (4) the possibility for abuse. The first ethical challenge to consider when examining the FBI’s “Going Dark” initiative is the potential negative ramifications it could have on private communication companies. Currently, companies such as Apple and Google use their encrypted servers not only to conceal the interests of their customers, but also to protect their infrastructure from outside threats such as foreign governments, international competitors, and hackers. Moreover, encryption also protects the financial transactions and personal information of all customers utilizing the servers of one of these companies (“Going Dark,” n.d.). Forcing communication companies to weaken their encrypted servers by creating a backdoor for law enforcement to exploit (which is the current goal of

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the “Going Dark” initiative) makes companies more vulnerable to outside threats such as hackers and identity thieves (Udry, 2015). Several lawmakers who testified before the House of Representatives’ Oversight and Government Reform Committee stated that it was “impossible” for communications companies to build backdoors in their encryptions and still keep cybercriminals out of their servers (Gross, 2015, para. 2). The ethical challenge with the “Going Dark” initiative is essentially the fact that the government would be forcing communications companies to lower the level of security currently protecting the information of billions of consumers. Moreover, if companies were forced to create a backdoor in their encrypted servers, all of the corporate information and personal data of the company’s customer basis would be at an increased risk of exploitation. In addition to potentially damaging the technical infrastructures of communication companies, the “Going Dark” initiative also risks harming the financial stability of several U.S tech giants. In today’s communications market, Apple and Google place a strong emphasis on the safety and security of their encrypted servers. This is mostly due to the vast customer base of both companies. In 2016, it was estimated that Apple had more than 1 billion IOS users worldwide (Statt, 2016). Similarly in 2017, Google announced that it had over 2 billion devices actively running on its Android server (Popper, 2017). The extensive consumer size of both companies results in a network where literally billions of individuals’ financial records, credit card data, identifying information, passwords, email logins, social media account information, and other information are stored at any given time. As a result of this massive amount of private information, it is essential for communication companies to develop a system where that information is secure and protected from outside threats such as identity thieves and hackers. However, by creating a backdoor, the possibility of such outside threats gaining access to these encrypted networks severely increases. This in turn could drastically impact the customer base and revenue stream of communication companies such as Apple and Google. Apple CEO, Tim Cook, highlighted this potential fear when he stated, “The government is asking Apple to hack our own users and undermine decades of security advancements that protect our customers” (Price, 2016, para. 22). In addition to the local customer, the “Going Dark” initiative could also impact Google and Apple’s foreign customer bases. According to Jon Potter, president of the Application Developers Alliance, “U.S. smartphone apps that allow back doors would likely be banned in many European countries,” further impacting the financial earnings of Apple and Google (Gross, 2015, para. 12). The stark contrast between the infrastructural stability of private companies and the capabilities of communication surveillance is an ethical dilemma that policymakers have to wrestle with when determining the future of the FBI’s “Going

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Dark” initiative. Backdoors in encryptions are essentially holes in security that can be exploited by both law enforcement and cybercriminals. In a sense, U.S. lawmakers are caught in between two ethical challenges when determining the future of the “Going Dark” initiative. One the one hand, the implementation of the “Going Dark” initiative means increased access to communications data for law enforcement paired with a greater vulnerability to cybercriminals. On the other, not implementing the “Going Dark” initiative likely results in increased security within communication company servers paired with greater obstructions to law enforcement investigations (Finklea, 2016). The second ethical challenge associated with the “Going Dark” initiative is the potential for an increase in domestic terrorism due to the obstruction of communication surveillance caused by encryption. As stated previously, encrypted forms of communication present a variety of challenges to law enforcement when attempting to surveil or collect data on the communications being transmitted. Due to the surveillance difficulties associated with encrypted communication, various criminal enterprises and terrorist organizations have begun to exploit such means of communication. James Comey recently reported that terrorist organizations such as the Islamic State have started to recruit and radicalize Americans through the use of encrypted mobile messaging (Olsen et al., 2016). Such practices pose a direct threat to the national security of America. Specifically, the use of encrypted communication between the Islamic State and Americans means the FBI largely cannot collect or analyze the communication data to determine who the point of contact for the Islamic State is within the United States. As a result of this obstruction, multiple Islamic State affiliates living within the United States go unidentified and, in some cases, launch terrorist attacks such as the one in San Bernardino, California (Thomas, 2015). The ethical challenge is that if nothing is done to solve for the obstructions to terror investigations caused by encrypted communication, the national security of the United States could be placed in greater jeopardy. The third ethical challenge stemming from the proposed “Going Dark” strategy is the potential for foreign government exploitation. Specifically, the FBI’s demands for a backdoor to be programmed into the encrypted servers of Apple and Google gives authoritarian powers such as China and Russia the ability to force the same companies to produce similar keys to their encryptions (Timm, 2015). In greater detail, the government of China has recently adopted a new counterterrorism strategy that has the potential to require American communication/technology companies (such as Apple and Google) to turn over its encryption keys and program backdoors into their encrypted servers (Pierson, 2016). Unfortunately for American companies, the trajectory of Chinese cybersecurity and counterterrorism programs only seems to be heading towards a more restrictive destination. Based on the recent programs implemented by the Chinese government, especially in terms of their

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recent 2015 counterterrorism law, it is clear that one of the focuses of the current administration is to strictly regulate “untrustworthy” foreign technology companies. International law firms studying the newly enacted Chinese counterterrorism law have started to warn American technology companies that China has the capability to legally demand source codes, encryption keys, and other crucial forms of information regarding communication servers from foreign technology companies currently operating in China (Alsabah, 2017). Essentially, the ethical challenge associated with the “Going Dark” strategy is that it provides precedent for foreign nations, such as China, to enforce their laws requiring foreign communication companies to hand over their encryption keys. Currently, the only significant factor holding China back from fully implementing the laws within its new counterterrorism strategy is the United States’ opposition. In 2015, then-U.S. President Barack Obama articulated that his administration was very concerned with China’s new counterterrorism strategy. Specifically, he stated, “This is something that I’ve raised directly with President Xi. We have made it very clear to them that [their requirements within their counterterrorism strategy are] something they are going to have to change if they are to do business with the United States” (Mason, 2015, para. 3). Despite the United States’ strong stance on China’s counterterrorism laws, it is highly likely that the Chinese government would disregard U.S. opposition if the demands within the FBI’s “Going Dark” initiative were met. This is because the United States would have established a legal precedent demonstrating that it is acceptable for a government to require American communication companies to program a backdoor into their encrypted servers. The fourth and final ethical challenge associated with the FBI’s “Going Dark” initiative is the possibility for the United States government to abuse the surveillance powers and capabilities granted to them by the initiative. In 2013, The Guardian newspaper reported on one of the greatest abuses of power that has ever taken place within the U.S. intelligence community. Specifically, the newspaper reported that the National Security Agency (NSA) was collecting the phone records of millions of American citizens through an online communication surveillance program called PRISM (“Edward Snowden,” 2014). After the intelligence leak, Americans quickly demanded that lawmakers hold the NSA accountable for violating the civil liberties of millions of American citizens. The NSA’s PRISM program is a notable example of where the U.S. intelligence community expanded beyond the powers bestowed upon them. While there is significant contrast between the capabilities of the NSA’s PRISM surveillance program and the FBI’s “Going Dark” initiative, there is still an equal level of concern for abuse. If the FBI’s “Going Dark” strategy were implemented, the Bureau would have access to billions of phone records and transmitted communications data. While

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such capabilities can be utilized for countering terrorism and upholding national security within the United States, such power could also be abused. Thus, if the United States implemented the policies within the “Going Dark” initiative, U.S. policymakers would have to prevent the abuse of American civil liberties. Past precedent with the NSA shows it is obvious that U.S. intelligence agencies have the ability to overstep their bounds. Thus, when considering the implementation of the “Going Dark” initiative, the United States government must also consider the ethical challenges associated with enacting the initiative.

Alternative Solutions

Given the pivotal role encryption plays in the modern investigation and counterterrorism process, it is important to construct alternative solutions to the current problem facing law enforcement and the FBI. Moreover, it would be wise for U.S. policymakers to consider several viable solutions to the current crisis. Technology experts have identified two potential alternatives to the FBI’s “Going Dark” strategy that may better solve the going dark problem as well as protect the civil liberties of Americans. Specifically, these two alternative options are (1) lawful government hacking and (2) the development of a nationwide law enforcement decryption program. The first alternative solution to the “Going Dark” initiative is the implementation of lawful hacking for official law enforcement use. In detail, law enforcement agencies could exploit pre-existing security flaws in encrypted servers to obtain targeted communication data (Segal & Grigsby, 2016). Currently, such a capability is not warranted under United States law. However, Congress does have the authority to approve new legislation that would grant law enforcement the capability to hack an encrypted server with a court order. According to several technology experts who were interviewed by the Los Angeles Times, lawful hacking is a viable alternative to creating backdoors in encryption (Segal & Grigsby, 2016). Moreover, it would likely produce the same results as backdoors in encryptions without threatening the security of the encrypted server. The second alternative to the “Going Dark” initiative is the development of a nationwide law enforcement decryption program. Currently, the challenges of going dark most significantly impact state and local law enforcement. This is mostly because both state and local law enforcement lack the resources and technical capabilities to unlock encrypted forms of communication. As a result, the executive branch should construct a national decryption program housed within the FBI. Such a program would assist state and local law enforcement when encrypted servers and communications data obstruct the investigation (Segal & Grigsby, 2016). While such a program may lead to difficulty in obtaining information from encrypted servers, a national decryption program would ultimately prove beneficial for assisting law

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enforcement in investigations involving encryption.

Conclusion Encrypted communication plays a vital role in both the world of private companies and law enforcement. Currently, law enforcement faces legitimate challenges when it encounters encrypted forms of communication during an investigation. In various situations, encryption has restricted law enforcement’s ability to successfully attain information, identify targets, and prosecute criminal cases (“Going Dark,” n.d.). In the state of New York alone, local law enforcement estimated that encrypted forms of communication hindered the investigations of over 175 cases between September 2014 and March 2016 (“Going Dark,” n.d.). The debate between encrypted communication and national security is not an issue that will disappear in the near future. The House Homeland Security Committee captured the overall essence of this debate best when it wrote: Today, more than ever before, technology, public safety, and counterterrorism are inextricably linked. Technology, such as encryption, protects our data and our infrastructure, and helps to ensure the privacy of our citizens; yet it is also exploited by bad actors, including drug traffickers, child predators, and terrorists, to facilitate criminal activities, and threaten our national security. Thus, what we are really dealing with is not so much a question of “privacy versus security,” but a question of “security versus security.”…The debate surrounding the abuse of widely available encryption technology is part of a larger question of ensuring that law enforcement and national security efforts keep pace with technological advancement without undermining American competitiveness and American values. (2016, p. 6) There are various ethical challenges on both sides of the debate regarding the implementation of the FBI’s “Going Dark” initiative. As previously noted, U.S. policymakers are caught in a difficult position. They must choose between enhanced surveillance and upholding American civil liberties. As the U.S. government continues to determine where to draw the line between national security and civil liberties, it is important to consider the ethical challenges associated with both sides of the debate.

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Reference List Alsabah, N. (2017, March 18). China’s quest for cybersecurity causes headache for foreign companies. The Diplomat. Retrieved from https://thediplomat. com/2017/03/chinas-quest-for-cybersecurity-causes-headache-for-foreigncompanies/ Apple Inc. (n.d.). Our approach to privacy. Retrieved December 3, 2017, from https://www.apple.com/privacy/approach-to-privacy/ Baker, P. (2015, June 1). In debate over Patriot Act, lawmakers weigh risks vs. liberty. New York Times. Retrieved from https://www.nytimes. com/2015/06/02/us/politics/in-debate-over-patriot-act-lawmakers-weighrisks-vs-liberty.html Brown, P., & Perez, E. (2014, October 12). FBI tells Apple, Google their privacy efforts could hamstring investigations. CNN. Retrieved from http://www. cnn.com/2014/09/25/politics/fbi-apple-google-privacy/index.html Doyle, C. (2012). Privacy: An overview of the Electronic Communications Privacy Act (CRS Report No. R1733). Congressional Research Service. Retrieved from https://www.hsdl.org/?view&did=725508 Edward Snowden: Leaks that exposed US spy programme. (2014, January 17). BBC. Retrieved from http://www.bbc.com/news/world-us-canada-23123964 Electronic Communications Privacy Act (ECPA). (n.d.). Electronic Privacy Information Center. Retrieved from https://epic.org/privacy/ecpa/ Director discusses encryption, Patriot Act provisions. (2005, May 20). FBI: News. Retrieved from https://www.fbi.gov/news/stories/director-discussesencryption-patriot-act-provisions Figliola, P. M. (2007). Digital surveillance: The Communications Assistance for Law Enforcement Act (CRS Report No. RL30677). Congressional Research Service. Retrieved from https://stanford.edu/~jmayer/law696/week8/ CRS%20on%20CALEA.pdf Finklea, K. (2016). Encryption and evolving technology: Implications for U.S. law enforcement investigations (CRS Report No. R44187). Congressional Research Service. Retrieved from https://fas.org/sgp/crs/misc/R44187.pdf

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Going dark. (n.d.). FBI. Retrieved from https://www.fbi.gov/services/operationaltechnology/going-dark Gross, G. (2015, April 30). Lawmakers criticize FBI’s request for encryption back doors. InfoWorld. Retrieved from https://www.infoworld.com/ article/2916526/government/lawmakers-criticize-fbis-request-forencryption-back-doors.html Homeland Security Committee. (2016). Going dark, going forward: A primer on the encryption debate [Majority staff report]. Retrieved from https:// homeland.house.gov/wp-content/uploads/2016/07/Staff-Report-GoingDark-Going-Forward.pdf Kopel, D. B. (1998). When you call, who is listening? Cato Institute. Retrieved from https://www.cato.org/publications/commentary/when-you-call-whois-listening Kravets, D. (2012, November 2). Feds ordered to disclose data about wiretap backdoors. Wired. Retrieved from https://www.wired.com/2012/11/fbiwiretap-backdoors/ Mason, J. (2015, March 2). Exclusive: Obama sharply criticizes China’s plans for new technology rules. Reuters. Retrieved from https://www.reuters.com/ article/us-usa-obama-china/exclusive-obama-sharply-criticizes-chinasplans-for-new-technology-rules-idUSKBN0LY2H520150302 Olsen, M., Schneier, B., & Zittrain, J. (2016). Don’t panic: Making progress on the “going dark” debate. Berkman Center for Internet & Society at Harvard University. Retrieved from https://cyber.harvard.edu/pubrelease/dont-panic/ Dont_Panic_Making_Progress_on_Going_Dark_Debate.pdf Pierson, D. (2016, February 19). Why Apple’s fight with the FBI could have reverberations in China. Los Angeles Times. Retrieved from http://www. latimes.com/business/technology/la-fi-tn-apple-global-privacy-20160219story.html Popper, B. (2017, May 17). Google announces over 2 billion monthly active devices on Android. The Verge. Retrieved from https://www.theverge. com/2017/5/17/15654454/android-reaches-2-billion-monthly-active-users

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Price, R. (2016, February 17). Why the FBI is demanding that Apple hack into an iPhone — and why Apple says it’s a terrible idea. Business Insider. Retrieved from http://www.businessinsider.com/apple-challenges-fbi-demand-tohack-into-san-bernadino-shooter-iphone-5c-court-order-2016-2 Savage, C. (2011, February 17). As online communications stymie wiretaps, lawmakers debate solutions. New York Times. Retrieved from http://www. nytimes.com/2011/02/18/us/18wiretap.html Segal, A., & Grigsby, A. (2016, March 15). 3 realistic solutions to prevent another FBI-Apple fight over encryption. Los Angeles Times. Retrieved from http://www.latimes.com/business/technology/la-fi-0315-the-downloadencryption-20160315-story.html Statt, N. (2016, January 26). 1 billion Apple devices are in active use around the world. The Verge. Retrieved from https://www.theverge. com/2016/1/26/10835748/apple-devices-active-1-billion-iphone-ipad-io Sunset Provisions of the USA Patriot Act: Hearing before the Senate Committee on the Judiciary (testimony of Robert Mueller), 109th Cong. (2005). Retrieved from https://archives.fbi.gov/archives/news/testimony/sunset-provisions-ofthe-usa-patriot-act-1 Thomas, P. (2015, December 9). Feds challenged by encrypted devices of San Bernardino attackers. ABC News. Retrieved from http://abcnews. go.com/US/feds-challenged-encrypted-devices-san-bernardino-attackers/ story?id=35680875 Timm, T. (2015, June 9). If the FBI has a backdoor to Facebook or Apple encryption, we are less safe. The Guardian. Retrieved from https://www. theguardian.com/commentisfree/2015/jun/09/fbi-facebook-backdoor-appleencryption-less-safe-privacy Udry, S. (2015, November 23). The FBI’s “going dark” problem: What you need to know. Defending Rights & Dissent. Retrieved from https://rightsanddissent. org/news/the-fbis-going-dark-problem-what-you-need-to-know/ U.S. Department of Justice. (2013a). Electronic Communications Privacy Act of 1986 (ECPA), 18 U.S.C. § 2510-22. Retrieved from https://it.ojp.gov/ PrivacyLiberty/authorities/statutes/1285

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U.S. Department of Justice. (2013b). Title III of The Omnibus Crime Control and Safe Streets Act of 1968 (Wiretap Act). Retrieved from https://it.ojp.gov/ PrivacyLiberty/authorities/statutes/1284 Volz, D., Mimms, S., & Fox, L. (2015, June 2). Senate passes major NSA reform bill. The Atlantic. Retrieved from https://www.theatlantic.com/politics/ archive/2015/06/senate-passes-major-nsa-reform-bill/445959/ Yadron, D. (2016, March 15). Apple tells judge that US government is wellmeaning but wrong in privacy fight. The Guardian. Retrieved from https:// www.theguardian.com/technology/2016/mar/15/apple-v-fbi-encryptionprivacy-fight-legal-filing

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STARVATION OF THE SPIRIT: SOLITARY CONFINEMENT AND THE EIGHTH AMENDMENT Meridian Paulton Abstract Solitary confinement has had a long history in the United States. While it has evolved over time, it remains an important part of the American criminal justice system. Typically, the practice is used to discipline inmates who commit serious rule infractions or who are involved with prison gangs. However, litigation in recent decades has revealed that highly limited social interactions and reduced environmental stimuli can lead to severe consequences such as psychosis and suicidal tendencies, especially for mentally ill prisoners. In such cases, some courts have found that solitary confinement is unconstitutional for the severely mentally ill because it constitutes deliberate indifference under the Eighth Amendment. This study considers the history and modern facts of solitary confinement in the United States, the various Eighth Amendment challenges which it presents (including analysis through two case studies), and the possible constitutional answers. It concludes that, while state action is preferable, the Supreme Court may be justified in ruling that solitary confinement is an unconstitutional practice when applied to severely mentally ill prisoners. ___________________________________

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Introduction In 1842, Charles Dickens described solitary confinement in the United States: I am only the more convinced that there is a depth of terrible endurance in which none but the sufferers themselves can fathom, and which no man has a right to inflict upon his fellow creature. I hold this slow and daily tampering with the mysteries of the brain to be immeasurably worse than any torture of the body; and because its ghastly signs and tokens are not so palpable to the eye and sense of touch as scars upon the flesh; because its wounds are not upon the surface, and it extorts few cries that human ears can hear; therefore the more I denounce it, as a secret punishment which slumbering humanity is not roused up to stay. (p. 81) Of course, to say that the solitary confinement of 2018 resembles the conditions of the same punishment in 1842 is to make a faulty comparison. But it is equally faulty to say that there is nothing harsh about the nature of solitary confinement that permeates its every rendition. Solitary confinement is, by definition, the separation of a prisoner from the general prison population—a population already removed from the rest of society (“Solitary Confinement,” n.d). In other words, a prisoner in solitary confinement is in a state of total or near-total isolation. It is no revelation to say that this is an unnatural and difficult state of existence for even the most sociallyaverse of persons. It might even be described as “cruel.” The Eighth Amendment to the U.S. Constitution famously prohibits punishments that are “cruel and unusual.” Likewise, if there are instances where solitary confinement is cruel, it is possible that this could render it an unconstitutional form of punishment. However, the Supreme Court has never ruled on the facial merits of solitary confinement in light of this constitutional provision. The term “solitary confinement” appears in 69 separate cases under the Supreme Court’s jurisdiction. However, in each case, the merits of the punishment are either unaddressed or considered only on a narrow, as-applied level, and almost always under constitutional provisions unrelated to the Eighth Amendment. Yet the question of the constitutionality of solitary confinement is an important and relevant one today. While the Federal Bureau of Prisons reports that it has made efforts in the last several years to reduce the number of federal prisoners in solitary confinement, the most recent estimates suggest that some 80,000 prisoners find themselves in “restrictive housing” in the United States (Casella & Ridgeway, 2012; Department of Justice, 2016). If there is a constitutional question surrounding solitary confinement, it is worth considering at the present time.

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In light of these facts and considerations, the remainder of this paper will address the constitutionality of solitary confinement as it is practiced today. The hypothesis advanced at the outset of this research is that the practice of solitary confinement becomes unconstitutional at the point at which it deprives inmates of the opportunity to meaningfully interact with other persons at regular intervals, or when it deprives inmates of the opportunity to access adequate mental health treatment. This hypothesis will be tested against the constitutional literature available on this issue. This study will also compare the variety of prison practices across the U.S. against past, current, and proposed standards in Eighth Amendment jurisprudence. This study is divided into three sections. Section 1 gives a background on the issue. It discusses available literature on the subject and the history of solitary confinement in practice and at law through the United States. Section 2 discusses current solitary confinement conditions, recent litigation, and laws and regulations in the U.S. and through the world. Section 3 analyzes the constitutional issues pertaining to the Eighth Amendment.

Literature Review Literature on the constitutionality of solitary confinement is broad enough that a true review of the literature would merit an entire paper in itself. Approaches vary broadly, and the arguments have changed over time along with the constitutional history. Because of this breadth, this space will be used to cite a few pertinent examples from recent years. The remainder of the literature review will focus on the constitutional literature itself, as this is what will ultimately inform any potential court decision. Some recent articles focused on prisoner outcomes upon release from solitary confinement. For instance, one study noted that recidivism rates tend to be lower among those who were not in solitary confinement and cited the harsh conditions of solitary as the likely reason for this difference (Gordon, 2014). Others focused on systemic problems within criminal justice systems and advocated for their reform over constitutional solutions. For instance, one article suggested that juvenile solitary confinement can only end if attorneys general are proactive about it (Cooper, 2017). Rademacher’s (2016) article proposed statutory changes to achieve the same effect. Some take an international approach to the problem. For instance, Hresko (2006) attempted to use international laws against torture to fault the United States’ practices. Still others looked at the psychological impact of the solitary confinement as

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a justification for reform (Walton, 1997). This is the approach taken in this study.

A History of Solitary Confinement in the United States

In the 1890 Supreme Court case In re Medley, Justice Miller cited the American Cyclopaedia when he described the early history of solitary confinement in the United States: [T]he first plan adopted when public attention was called to the evils of congregating persons in masses without employment, was the solitary prison connected with the Hospital San Michele at Rome, in 1703, but little known prior to the experiment in Walnut Street Penitentiary in Philadelphia in 1787. The peculiarities of this system were the complete isolation of the prisoner from all human society, and his confinement in a cell of considerable size, so arranged that he had no direct intercourse with or sight of any human being, and no employment or instruction. Other prisons on the same plan, which were less liberal in the size of their cells and the perfection of their appliances, were erected in Massachusetts, New Jersey, Maryland and some of the other States. But experience demonstrated that there were serious objections to it. A considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others, still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community. It became evident that some changes must be made in the system, and the separate system was originated by the Philadelphia Society for Ameliorating the Miseries of Public Prisons, founded in 1787. (In re Medley, 1890, at 167) But the replacement system proved to be nearly as bad as the system it was designed to improve. The Philadelphia Society based its new theory upon the idea of penitence: if prisoners were in solitary confinement, they could think about the wrongs that they had committed and become penitent. Prisoners were taken into confinement wearing a hood so that they could not see any other prisoners on their way, and they were removed from confinement in the same way. In fact, the only real “reform� was that prisoners were now allowed to work in their cells (a part of their penance), rather than sitting in the space, completely bored. It was these conditions that Charles Dickens wrote about in 1842.

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By the time the Supreme Court took up the Medley case in 1889, the oncewidespread use of solitary confinement seems to have decreased. However, the case law from the end of the 19th and beginning of the 20th centuries suggests that solitary was common while a prisoner sentenced to death awaited their execution. The application of this practice was at issue in multiple cases including Medley, for various reasons extending beyond the scope of the Eighth Amendment (In re Medley, 1890; Holden v. Minnesota, 1890; McElvaine v. Brush, 1891; Rooney v. North Dakota, 1905; Rogers v. Peck, 1905). As noted in the literature review, most cases, like the Medley case, were questions of whether the applicable law was applied in an ex post facto manner. The next trend highlighted in Supreme Court case law is the early 20th century trend of sentencing prisoners to “solitary confinement at labor” for lengths of time varying from eighteen months to indefinite confinement. The crimes warranting this punishment include embezzlement and conspiracy in fraud (Shoener v. Pennsylvania, 1907; Ex parte Spencer, 1913). For nearly half a century, the Court remained silent on any form of long-term solitary confinement, commenting only on cases where solitary was a temporary measure for a matter of days. Then, in 1950, the Court took up the case of Quicksall v. Michigan. This case is notable because it is the first time that a life sentence to solitary confinement appears in the High Court. The Court did not consider the merits of solitary confinement, as the case was a procedural due process challenge. In this case, as well as the subsequent 1957 case of Moore v. Michigan, the petitioner did not have the assistance of counsel at trial. The Moore case was an application of the same sentence to “solitary confinement at hard labor for life without opportunity for parole”—and in that case the petitioner was only 17 years old at the time he was sentenced (Moore v. Michigan, 1957, at 155). A similar claim was raised in Carnley v. Cochran (1962), though this was a case where a man was allegedly in solitary confinement for five months while awaiting a sentence. The final “historical” contribution of the Supreme Court’s record comes from Brooks v. Florida (1967), where solitary confinement (among other tools) was used to extort confessions to rioting from petitioners. The Court held their sentence unconstitutional on a unanimous decision.

How Solitary Confinement is Used Today

As noted at the outset, solitary confinement has changed significantly over the past two centuries—its purposes, design, and conditions are all different today. While there are many different terms and sets of conditions associated with “solitary confinement” in the modern U.S., there are three primary iterations of the practice.

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All three fall under the broad category of “restrictive housing.” The first of these iterations is the use of solitary confinement as a disciplinary practice in a variety of prison contexts. This practice is employed when a prisoner violates prison regulations (Department of Justice/Federal Bureau of Prisons, 2011). The inmate is removed from the general prison population for a matter of days, and the precise conditions of his confinement vary—but he will certainly be released back into the general prison population after he has served his brief disciplinary sentence. “Double-celling” may be employed as well: two solitary confinement prisoners are placed together and in general will only see one another for the duration of their time in restrictive housing (Rhodes v. Chapman, 1981). The second practice is the temporary placement of a prisoner in solitary confinement at a maximum security or “supermax” prison. The majority of state prison systems have a supermax prison, and there is one federal supermax prison in Florence, Colorado (Department of Justice, 2011). This option is triggered when a prisoner at a “normal” state or federal prison commits a violent offense or becomes involved with a prison gang. These confinement periods can vary from a couple of weeks to a year or more. In some cases, the time served is dependent on the prisoner’s behavior while in prison. These two practices have both raised significant due process concerns. It has been common practice to place prisoners in disciplinary solitary confinement without a disciplinary hearing, or with a disciplinary hearing where the prisoner is not able to call witnesses or an attorney. Despite these concerns, this has been previously held constitutional, at least under some circumstances (Montanye v. Haymes, 1976). The third major practice of solitary confinement is a process in which convicts are automatically sentenced to a period of solitary confinement in a supermax prison—in many cases an indefinite period. The average length of time served is seven to eight months (American Civil Liberties Union, 2014). This occurs because the convict committed a particularly violent offense, has a history of disciplinary issues within the correctional system, or (most commonly) is thought to be connected with a known gang (American Civil Liberties Union, 2014). While practices vary within the supermax prison structure, there are certain commonalities between penitentiaries. A prisoner sentenced to solitary confinement in a supermax prison can expect to spend between 22 and 24 hours a day in complete isolation. Depending on the prison, he may have access to a recreational cell of his own which he can use during certain hours, or he may be permitted to share a corporate recreational cell during the precious few hours when he is not cut off from the rest of the prison population. The prisoner will be able to communicate with the outside world via censored letters and, depending on the penitentiary, through monitored electronic communications. He will be able to communicate in person

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with his lawyer and will have access to a religious counselor and medical personnel upon request, but these interactions may not always be in-person. Other visitors are typically proscribed. If the prisoner is lucky, he may also be able to use his limited out-of-cell time to visit prison facilities like a library (American Civil Liberties Union, 2014). Within his cell, a prisoner has a bed, a toilet, and a sink. He may have very limited exercise equipment (depending on the penitentiary), and he may have access to a screen of some kind which he can use to conduct the communications described above. Sometimes a prisoner has access to sunlight (American Civil Liberties Union, 2014). While juveniles do not comprise a majority of prisoners in solitary confinement in the U.S., some juveniles are indeed placed in solitary confinement. The ACLU (2014) noted that “in juvenile facilities, more than 50% of all suicides occur in isolation” (p. 8).

Case Study: Pelican Bay State Prison

Though solitary confinement may have harsh consequences, it may be hard to say at first blush that this is “cruel and unusual.” These prisoners may be deprived of normal social interactions most of their days, but they are otherwise in comfortable conditions and are afforded an escape from the infamously rough “gen pop.” But anything can look nice on paper, so it is worth examining a case study. California’s Pelican Bay State Prison is an oft-discussed example of solitary confinement. The investigations made into the prison (as part of major litigation) were more extensive than most other queries into solitary confinement, making it a useful case study. At Pelican Bay there were three types of prisoners: those in minimum security, those in maximum security but still a part of the general population, and those in the Secure Housing Unit (SHU), which served as the prison’s solitary confinement unit. In this unit, prisoners spent 22.5 hours each day isolated. They were not permitted to participate in the general recreation area. The prison was the subject of litigation which involved seven claims, including claims about excessive force used in the general population (Madrid v. Gomez, 1995). Investigations revealed that prisoners were sometimes subjected to such harsh and arbitrary punishments such as being placed naked in cages in the cold (Madrid v. Gomez, 1995). Given these facts, it is possible that Pelican Bay is a hyperbolic example: any inferences drawn from it must be taken in that context. The claims affecting the SHU in the case Madrid v. Gomez (1995) were many. There were claims about lack of access to mental health care, inhumane conditions, negligence in assigning inmates to the SHU, and lack of access to the Courts.

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The lack of access to mental health care in the SHU was so severe that even the expert hired by the prison testified that he “could not represent to the Court that the mental health care delivery system was ‘adequate’ or met constitutional standards” (Madrid v. Gomez, 1995). One official estimated that of the 1,500 persons housed in the SHU, 200 to 300 were in need of psychiatric intervention at any given time (Madrid v. Gomez, 1995). Another psychiatrist examined 40 inmates at random, and found that about one-third “suffered from what appeared to be psychotic symptoms or had been placed on anti-psychotic medication” (Madrid v. Gomez, 1995). In spite of this acute need for mental health services at Pelican Bay, it was 2.5 years before the prison hired any resident psychiatrist. And it was not until litigation put pressure on prison officials that they hired sufficient support staff to handle the psychiatric case load (Madrid v. Gomez, 1995). Even so, a prison official still testified in deposition that “the provision of services is still primarily crisis-oriented, with emphasis on crisis intervention stabilization” (Madrid v. Gomez, 1995, at 1217). Screening and referrals for mental health care also were lacking at the prison. For three years, the prison did not have any screening at all (Madrid v. Gomez, 1995). Even once the prison incorporated mental health screenings, an expert for the prison reported that the people “who briefly screen incoming inmates typically do not have the necessary training and background to recognize psychiatric illnesses” (Madrid v. Gomez, 1995, at 1219). And for those inmates already in the system, they relied solely upon these same untrained officials to recognize mental illnesses (Madrid v. Gomez, 1995). This is in turn led to problems in psychiatric recordkeeping. This combination of factors led to acute situations like the one that affected “Inmate A”: There are also inmates who need and would benefit from involuntary medication, but who are not transferred to a facility offering such treatment on account of security concerns. For example, Inmate A is an inmate who was suffering from delusional beliefs and...hallucinations telling him to commit violent acts. When Dr. Grassian interviewed the inmate in September 1992, he found him to be “severely mentally ill, incompetent to appreciate his need for treatment, and a danger to himself and others.” … Dr. Grassian was informed, however, that the inmate’s security needs required him to remain at Pelican Bay. Inmates like Inmate A are essentially trapped in a Catch-22: they are too psychotic to consent to treatment, yet their psychosis makes them too “dangerous” for a transfer to a facility where they could receive treatment that would potentially reduce their security risk. (Madrid v. Gomez, 1995, at 1221)

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The list of stories like this one is extensive within the Madrid record. Stories include an inmate hallucinating that the guards were growing marijuana and killing people, an inmate sitting in “a fixed, immobile posture,” and inmates experiencing suicide ideation (Madrid v. Gomez, 1995). However, the claim raised here was not simply that inmates were experiencing psychotic episodes: it was that the prison was deliberately indifferent to these harms. The prison was aware of the various problems highlighted above (Madrid v. Gomez, 1995). The court wrote: Defendants’ response to the lack of adequate mental health care— and particularly the response of defendant Gomez, who has overall responsibility for the California Department of Corrections—reflects a deplorable, and clearly conscious, disregard for the serious mental health needs of inmates. For example, defendants suggest that, despite lacking a staff psychiatrist—or any semblance of a mental health care program—they were nonetheless justified in opening Pelican Bay, given their ‘contingency plan’ of providing mental health services through periodic visits from psychiatrists at other institutions. However, this plan was so clearly and grossly deficient that it only highlights defendants’ striking indifference to the mental health of thousands of persons in their custody. (Madrid v. Gomez, 1995, at 1226) The next claim concerned the conditions of the SHU—including the fact that those conditions may have been responsible for the concerns just described. These were much like the conditions described earlier as typical of a supermax prison, described by the court as having an overall effect of “stark sterility and unremitting monotony” (Madrid v. Gomez, 1995, at 1229). Each prisoner also maintained access to “a small exercise pen with cement floors and walls…[which] preclude any view of the outside world…[T]he pens are more suggestive of satellite cells than areas for exercise or recreation” (Madrid v. Gomez, 1995, at 1229). The lack of social interaction was equally typical: inmates spent all but 1.5 hours of each day entirely alone, or with their cellmate if they were double-celled. Interaction between inmates and staff were “essentially precluded” (Madrid v. Gomez, 1995, at 1229), and inmates could (as is typical) request a visit with a chaplain. Inmates could receive visitors or their attorney, by visiting through a thick glass wall by telephone. But the Court noted that due to the removed location of Pelican Bay, “many inmates [got] either few visitors or none at all” (Madrid v. Gomez, 1995, at 1229). Even those who were double-celled were likely to become violent

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toward their cellmates (Madrid v. Gomez, 1995). As an important aside, experts who testified in the case acknowledged that the conditions at Pelican Bay were harsher than most other SHUs across America. One described it as more isolated than any of the other 20 to 25 locations he had visited (Madrid v. Gomez, 1995). Thus, Pelican Bay may not be wholly representative of solitary confinement in maximum security prisons today. Despite the differences between Pelican Bay and other penitentiaries, the fact remains that the purpose of solitary confinement is to reduce the interactions that an inmate has with other inmates and the outside world. The penal reasons for this may vary from maintaining security to punishing heinous deeds—both reasons will be discussed in a later section of this paper. But whatever the reason a person is in solitary confinement, it is to some degree, precisely that: solitary. And that design itself may have treacherous consequences for the mind, as the court in Madrid noted: Social science and clinical literature have consistently reported that when human beings are subjected to social isolation and reduced environmental stimulation, they may deteriorate mentally and in some cases develop psychiatric disturbances. These include perceptual distortions, hallucinations, hyper-responsivity to external stimuli, aggressive fantasies, overt paranoia, inability to concentrate, and problems with impulse control. This response has been observed not only in the extreme case where a subject in a clinical setting is completely isolated in a dark soundproofed room or immersed in water, but in a variety of other contexts. For example, similar effects have been observed in hostages, prisoners of war, patients undergoing long-term immobilization in a hospital, and pilots flying long solo flights. While acute symptoms tend to subside after normal stimulation or conditions are returned, some people may sustain long-term effects. This series of symptoms has been discussed using varying terminology; however, one common label is “Reduced Environmental Stimulation,” or “RES.” According to Dr. Grassian, the complex of symptoms associated with RES is rarely, if ever, observed in other psychotic syndromes or in humans not subject to RES. (Madrid v. Gomez, 1995, at 1230-1231) The Court also referenced the In re Medley (1890) case cited earlier in this work as an example of the historicity of RES producing these severe symptoms in individuals subjected to solitary confinement conditions. To demonstrate this point, the aforementioned Dr. Grassian interviewed 50 inmates and reviewed their medical interviews. He found that “in forty of the fifty inmates, SHU conditions had either

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massively exacerbated a previous psychiatric illness or precipitated psychiatric symptoms associated with RES conditions” (Madrid v. Gomez, 1995, at 1232). The Court further cited a 7th Circuit case, Davenport v. DeRobertis (1984), which noted the psychological damage that prolonged social isolation can incur. As with the mental health access claim, the claim in Madrid was that the prison treated the inmates with deliberate indifference in allowing RES-induced conditions to incur, while being aware of this relationship and having the ability to remedy the situation. The CDC released a memorandum about this, mentioning Pelican Bay specifically. It recommended “excluding from the SHU all inmates who were either seriously mentally ill or assessed as likely to suffer a serious mental health problem if subject to RES conditions” (Madrid v. Gomez, 1995). This recommendation was based on the contrast between a similar prison in Marion, Illinois—where the recommended practice was enforced and effectively minimized the results of RES— and in Florence, Arizona—where the status quo was more akin to Pelican Bay, as were the prisoner’s mental health outcomes (Madrid v. Gomez, 1995). In regard to these two claims (mental health access and inhumane conditions), the Northern District of California found the conditions unconstitutional and offered remedies. The reasoning for the unconstitutionality was grounded in the Eighth Amendment. The court extensively quoted the humanitarian language of the Supreme Court and various Circuit Courts in interpreting the Eighth Amendment (Madrid v. Gomez, 1995). The court also cited various Supreme Court decisions that established the “deliberate indifference” standard, by which prisons and prison guards can be held liable for negative actions and outcomes toward prisoners that the actors were aware but chose either to ignore or to exacerbate their conditions. On this basis, the court in Madrid determined that this was what had occurred at Pelican Bay. The remedies included appropriate mental health training, staffing, screening, and treatments, as well as cooperation with the guidelines set forth in the CDC memorandum.

Case Study: Wisconsin Supermax Correctional Institution

As already noted, Pelican Bay may be an especially egregious case of solitary confinement, but there are still comparisons that can be drawn between that prison and others of its kind across the United States. Jones-El v. Berge was a 2001 case before a Wisconsin District Court involving prisoners in the Supermax Correctional Institution who had severe mental illness and requested to be placed in special housing instead of the solitary confinement in which they found themselves. Prisoners spent 23-24 hours per day in solitary confinement. They had a light on at all hours and would be awakened if they “covered their faces in such a way that the guards [could not] see any of the inmate’s

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skin. For seriously mentally ill inmates, the constant illumination [disrupted] their diurnal rhythm and [added] to the sense of disorientation” (Jones-El v. Berge, 2001, at 1100). To make matters worse, prisoners were not allowed to wear any kind of watch to keep track of time and were kept in cells with only small skylights and with large boxcar doors that were rarely opened (Jones-El v. Berge, 2001). The temperature could not be regulated by inmates, meaning that on one occasion, inmates’ cells reached a heat index of 100 degrees (Jones-El v. Berge, 2001). This fact alone was cause for further litigation in the 7th Circuit (Jones-El v. Berge, 2004). Inmates were shackled at almost all times when they were outside their own cells: including in the law library and in transportation to the unequipped “exercise room” (Jones-El v. Berge, 2001, at 1100). There was also a distinct lack of human interaction at the prison. Inmates could only have face-to-face visits with their lawyers, and any other visitors would be “received” through poor quality video cameras. Some mentally ill prisoners came to believe these images were manipulated and thus refused to receive visitors (Jones-El v. Berge, 2001). The most severely restricted inmates were only allowed one six-minute telephone call each month. While inmates could in theory move from such a restricted situation, the court noted that “seriously mentally ill inmates have difficulty following the rules necessary to advance up the level system and, as a result, find themselves ‘stuck’” (Jones-El v. Berge, 2001, at 1101). Mental illness was prevalent in Jones-El in a similar manner to Madrid. The court in that case identified RES as “SHU Syndrome,” referring to paranoia, dissociative disorders, schizophrenia, and panic disorders, as well as breakdowns and suicide attempts, as symptoms of the confinement-induced syndrome (Jones-El v. Berge, 2001). An expert in the case also noted that mental health staff responsible for evaluating these inmates routinely described the inmates as “malingering.” However, he also observed that many of these inmates had long histories of admission to psychiatric hospitals to treat serious mental illnesses. He observed that “an inmate can malinger and have a serious mental illness at the same time. In settings with insufficient staff, prisoners may discover that they have to manipulate to a certain extent in order to get the attention they need” (Jones-El v. Berge, 2001, at 1107). The prisoners sought relief from solitary confinement on the grounds of deliberate indifference to serious medical needs, and the defendants attempted to treat this as a very narrow issue. However, the judge noted the issue was much broader than that, calling the intake of seriously mentally ill inmates “an Eighth Amendment violation in and of itself ” (Jones-El v. Berge, 2001, at 1116). While the judge chose not to grant a request for monthly mental health evaluations, he did grant a preliminary injunction (Jones-El v. Berge, 2001). Situations like this are daily life for the many of the thousands of prisoners in solitary confinement. Before turning to the constitutional issues, a few more

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related circumstances are worth mentioning: the amount of information that is available, Federal Bureau of Prisons requirements, and a brief summary of solitary confinement as it is viewed and handled in the rest of the Western world.

Lack of Information

Despite these visceral case studies, there remains a distinct lack of information surrounding solitary confinement. Much of this is owed to the type of prisons in which solitary takes place: it is not a place where a well-wisher can go take a tour and visit with inmates. These are places where the guards themselves are at such a high risk of being harmed by the inmate population that most operations are controlled by remote and any interactions can be expected to involve two or more officers to any one inmate. The individuals in solitary confinement were already dangerous criminals—then they joined a prison gang or murdered someone in prison. It is no wonder that there has been a lack of investigation into these prisons. Still, there must be more systematic investigation into the state of these prisons to more fully understand what happens there. Currently, the best information available is what this paper has already cited: anecdotal evidence that arises from litigation and post-release memoirs, and high-level overviews based on whatever information prisons do release about their practices.

Federal and State Laws and Regulations

There are some federal and state regulations governing the way these prisons are to operate. Some regulations are legislative, but most are regulated by the relevant agencies. Federal regulations surrounding solitary confinement are minimal. In fact, the Bureau of Prisons insists it does not practice solitary confinement (Department of Justice/Office of the Inspector General Evaluations and Inspections Division, 2017). But after a 2016 inspection of the nearly 10,000 inmates in federal restrictive housing, the Department of Justice disagreed: [W]e found inmates, including those with mental illness, who were housed in single-cell confinement for long periods of time, isolated from other inmates and with limited human contact. For example, at the ADX, we observed an RHU that held two inmates, each in their own cell, isolated from other inmates. The inmates did not engage in recreation with each other or with other inmates and were confined to their cells for over 22 hours a day. Also, in five SHUs, we observed single-celled inmates, many with serious mental illness. One inmate, who we were told was denied ADX

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placement for mental health reasons, had been single-celled for about 4 years. (Department of Justice/Office of the Inspector General Evaluations and Inspections Division, 2017, p. i) The report continued by noting that, though the Bureau of Prisons routinely sets minimum sentences in restrictive housing, maximums are not used, and mental health is not routinely monitored. As a result, prisoners with mental illness typically spent anywhere from 2.5 to more than 5.5 years in restrictive housing without being moved to special housing (Department of Justice/Office of the Inspector General Evaluations and Inspections Division, 2017). The federal regulations that do exist do not make restrictive as harsh as it could be—but it is certainly “restrictive” in accordance with its name. For example, an inmate may only have 5 paperback books, 10 personal letters, and 25 photos in a photo album. Other allowable personal items are equally restricted (Department of Justice/Federal Bureau of Prisons, 2011). Phone calls are restricted to one per month. While inmates may receive a visit from “program staff ” within “a reasonable time” upon request, they may only guarantee immediate contact by use of an optionallyinstalled duress button, which may only be used in an emergency (violation subject to disciplinary action). Medical evaluations occur daily as needed, and mental health evaluations occur every 30 days. Prisoners may receive visitors up to four hours out of each month, subject to restriction for disciplinary or safety reasons (Department of Justice/Federal Bureau of Prisons, 2011).

Solitary Confinement and the Western World

It is critical to understand how the rest of the Western world handles the issue of solitary confinement. This is because it is a consideration in the “contemporary standards of decency” Eighth Amendment test which will be discussed in the second half of this paper (Roper v. Simmons, 2004, at 551). Most notable in this regard is the United Nations’ (UN) reaction toward solitary confinement. The UN recommended in a 2011 memorandum that states should “re-evaluate and minimize [solitary confinement’s] use and, in certain cases, abolish the practice of solitary confinement. The practice should be used only in very exceptional circumstances, as a last resort, for as short a time as possible” (United Nations, 2011, p. 2). The same governing body later condemned the United States’ widespread use of solitary confinement (UN Committee Against Torture, 2014). Furthermore, the United Nations has condemned the use of solitary confinement for juveniles. This was a key point in its condemnation of the United States’ practice of solitary confinement (UN Committee Against Torture, 2014). The United Nations is not the only Western entity to condemn the practice of solitary confinement. The Inter-American Commission on Human Rights and the

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European Court of Human Rights have both issued similar statements and rulings (Inter-American Commission on Human Rights, 2013; Peers v. Greece, 2001).

Research and Analysis The Possible Constitutional Questions

With a broad overview of the facts surrounding solitary confinement now established, it is appropriate to turn to the question this paper seeks to answer: what are the constitutional limits of solitary confinement? There are a number of constitutional questions that frequently arise around the issue. Ex post facto and double jeopardy claims should be first on this list. These are the issues around which the majority of the Supreme Court’s solitary confinement jurisprudence has arisen. Naturally, this is like any other ex post facto or double jeopardy claim: the convict was wrongfully sentenced either due to doubly-damning statutes for the same instance of crime, or the convict was wrongfully convicted or sentenced under a law passed after the crime was committed. These issues are largely null today and, where they may exist, would not be unique to the solitary confinement question. The second set of issues is due process—both substantive and procedural. There have been a number of more recent cases that deal with this issue. In Wolff v. McDonnell (1974), the Court established minimum procedural due process requirements for prisoner disciplinary hearings. However, the Court prescribed that this issue must be resolved “consonant with the unique institutional environment … therefore involving a more flexible approach reasonably accommodating the interests of the inmates and the needs of the institution” (Wolff v. McDonnell, 1974, at 540). Two years later, the Court clarified that prison inmates did not have a right to counsel in disciplinary hearings and that adverse inference could be drawn from a prisoner’s silence at such hearings—but that prisoners could have witnesses unless they would not be used in a normal court setting (Baxter v. Palmigiano, 1976). Furthermore, in Meachum v. Fano (1976) and Montanye v. Haymes (1976), the Court held that a prisoner was not entitled to a fact-finding hearing simply because he was being transferred to a less favorable prison. The final major category of constitutional challenge to solitary confinement is the question of cruel and unusual punishment. While this may be the most substantively significant question—given the widespread practice of solitary confinement and weight of the claim—it has also been the least-addressed by the Supreme Court or any court until recent decades. In order to understand this question, it is necessary to delve into Eighth Amendment jurisprudence. But at the outset of the discussion, a note must be

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made: “cruel and unusual” jurisprudence has a very fluid history, and to date the rules surrounding its interpretation are anything but clear. In fact, the Supreme Court itself observed in Rhodes v. Chapman (1981) that there is no “static” test for determining whether any particular punishment is “cruel and unusual.” No such test can exist, for the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society” (Trop v. Dulles, 1958, at 101). This fact is evident in the very history of the Cruel and Unusual Punishments Clause. Early interpretations of the clause, in the words of one scholar, “curbed only torturous punishments as defined at the time of the amendment’s ratification” (Forte, 2014). This led to decisions like In re Kemmler (1890), which upheld execution by electrocution. Over time, though, the meaning has broadened as modern ideas about justice have expanded, pointing to the subjectivity inherent in the jurisprudence. While there is subjectivity, the Court held in Rummel v. Estelle (1980, at 274) that “Eighth Amendment judgement should neither be nor appear to be merely the subjective views of judges.” Inevitably, there will be some degree of subjective interpretation that is unique to the language of the Eighth Amendment (Rhodes v. Chapman, 1981). But such “[judgments] should be informed by objective factors to the maximum possible extent” (Coker v. Georgia, 1977, at 592). In other words, while this is inevitably a subjective matter of investigation, the evidence of a potential violation must itself be objectively grounded, and any constitutional bounds must find their source in that evidence. The standards that do exist can be thought of in three categories as they relate to solitary confinement. The first category is the “evolving standards of decency,” by which the “unusual” nature of a punishment is measured, as well as its cruelty in comparison with contemporary norms. The second is the “proportionality” category, which as its name suggests measures the proportionality of a given punishment to a particular crime. Both of these first two categories pertain primarily to the sentencing phase of a criminal proceeding. The final category, “conditions of confinement,” relates to the prisoner’s post-sentencing situation. Consider each broad category in turn. The “evolving standards of decency” test has been a consistent theme since its official introduction in 1958, but it has taken a number of forms since then. The first use of that precise term was in Trop v. Dulles (1958), where the Supreme Court found a statute that expatriated military deserters to be unconstitutional. The decision was based primarily on the fact that the punishment violated “evolving standards of decency that mark the progress of a maturing society” (Trop v. Dulles, 1958, at 101). The rationale was that a decent modern society would not so easily strip a person of their very nationality, making this punishment cruel and unusual. The comparison in this case was both abstract and international. Similar analysis appeared in the

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earlier Weems v. United States (1910), but in that case the punishment was examined in comparison to other punishments in the same jurisdiction. Years later, in Coker v. Georgia (1977), the Court compared different states’ punishments for rape in order to conclude that applying the death penalty in that case was cruel and unusual. This analysis has become even broader recently. In Roper v. Simmons (2005), the Court referenced international standards (including a citation to the United Nations) in its determination that capital punishment was unconstitutional for minors. This was based on the “contemporary standards of decency” among the international community, and the “trend” of the states away from the practice. Additionally, it is worth noting that the language of “standards of decency” has been used to mean more broadly “idealistic concepts of dignity, civilized standards, humanity, and decency” (Jackson v. Bishop, 1968, at 579). Proportionality is the second category of Eighth Amendment jurisprudence, and one that may be most intuitively associated with the Cruel and Unusual Punishments Clause. Perhaps as a result of this intuitive connection, the Supreme Court has often discussed proportionality in its decisions. However, despite its clear relation to the clause, it is almost as hard to define as the “evolving standards of decency” test, because whether a punishment is deemed proportional must depend in part on the penal justification offered up for the punishment. Penal justification is paradoxically at the heart of the Eighth Amendment’s issue, yet it is one of the least-considered issues in Eighth Amendment jurisprudence. If there a possibility that a certain punishment might be cruel and unusual, it is important to ask why the state feels justified in taking that action against the convict. But in Court opinions, this question is deliberated to a surprisingly small extent. The reason for this was articulated by a district court, which was later cited in a footnote to Hutto v. Finney (1978, at 700): “A practice that may be bad from the standpoint of penology may not necessarily be forbidden by the Constitution.” The bar, then, is generally no higher than a test of rationality (McCulloch v. Maryland, 1819). However, there are several penal justifications which the Court has still highlighted in its determinations. Justice Brennan succinctly noted the categories of justification in his concurrence to Trop v. Dulles (1958, at 111), writing, “Of course, rehabilitation is but one of the several purposes of the penal law. Among other purposes are deterrents of the wrongful act by the threat of punishment and insulation of society from dangerous individuals by imprisonment or execution.” Rehabilitation as a legitimate interest was also affirmed in Sandin v. Conner (1995). Relevant to the solitary confinement question, security and maintaining internal order have both been cited by the Court as legitimate legislative justifications (Rhodes v. Chapman, 1981; Bell v. Wolfish, 1979; Jones v. North Carolina Prisoners’ Labor Union, 1977; Pell v. Procunier, 1974; Cruz v. Beto, 1972).

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It was largely because penal justification is so dependent on legislative prerogative that Justice Scalia believed proportionality should not be a serious Eighth Amendment question. He wrote in his joint opinion to Harmelin v. Michigan (1991, at 958) that “[i]t is particularly telling that those who framed and approved the federal Constitution chose not to include within it the explicit guarantee against disproportionate sentences that some State constitutions contained.” In a footnote to the same opinion, Scalia added, “If cruel and unusual punishments included disproportionate punishments, the separate prohibition of disproportionate fines (which are certainly punishments) would have been entirely superfluous” (Harmelin v. Michigan, 1991, at 996). Because the question of where to draw the line on disproportionate sentences is a hard one to define—and perhaps one best left to state legislatures—the Court has evolved to using the “gross disproportionality” standard (Rhodes v. Chapman, 1981; Coker v. Georgia, 1977; Weems v. United States, 1910). While vague, this at least still suggests that there must be a seriousness about the degree to which the punishment and the crime are mismatched. In practice, this has been used in the aforementioned decision to prohibit the use of capital punishment for rape. It has also been rejected in cases like Rhodes v. Chapman (1981), where Ohio utilized doublecelling to accommodate its overcrowded prisons. However, the Court viewed that as a legislative and not a judicial determination of proportionality. Rhodes is important for a discussion about solitary confinement because it informs three key considerations in this discussion. First, Rhodes leaves us with the understanding that even extremely undesirable punishments or arrangements in prisons, if not truly “cruel and unusual” by some other standard, are questions best left to the legislature. The Court in that case wrote in a footnote: The problems of prisons in America are complex and intractable and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill-equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism. (Rhodes v. Chapman, 1981, at 352) Next, Rhodes leaves us with a practical understanding that double-celling in restricted housing is not inherently unconstitutional. Even though those conditions may have been “uncomfortable,” they were not unconstitutional. This was ultimately a legislative determination on how to address a problem. The state’s bar is low in a

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case like this. Finally, Rhodes is insightful because it is one of the cases which led to a clearer distinction between sentencing claims and conditions of confinement claims. Conditions of confinement claims first began to be clearly distinguished in the 1960s (Cooper v. Pate, 1964; Houghton v. Shafer, 1968; Wilwording v. Swenson, 1971). One case, Haines v. Kerner (1972), explicitly dealt with solitary confinement. An inmate was disciplined with 15 days in solitary confinement because he aggressively attacked another inmate. Despite a foot disability which the inmate alleged worsened from his time in solitary, he was still made to spend the allotted time in solitary. He alleged this was cruel and unusual punishment, and Illinois moved to dismiss the case because Haines failed to state cause of action. The Supreme Court held this action of Illinois to be unconstitutional, though it did not rule on the merits of solitary confinement itself. However, this fit into a larger framework of conditions of confinement cases, such as Hutto v. Finney (1978). Though Hutto was an 11th Amendment case involving payment of attorney’s fees, the payment was tied with a determination at the District Court level that the conditions in a prison system were cruel and unusual. The Court reflected on this extensively in the early part of its opinion, affirming the District Court’s determination on that question. Here the conditions were so abhorrent as to make it no surprise that this was the genesis of such claims. Homosexual rape occurred so often that prisoners would not sleep for fear of being raped. Prison guards and officials beat prisoners, fed them virtually inedible food, and made them do labor with mule-drawn tractors (Hutto v. Finney, 1978). Hutto was also important for solitary confinement. In this case the District Court imposed a 30-day maximum sentence on solitary confinement for inmates at the prison—and the Supreme Court affirmed this action, noting that “the length of confinement cannot be ignored” (Hutto v. Finney, 1978, at 686). Hutto’s concerns would be “traditional” conditions of confinement claims, often brought as a “1983” suit, referring to 42 U.S.C. § 1983. The Court clarified in Preiser v. Rodriguez (1973, at 489) that these “1983” suits were not meant to challenge the “fact or duration of that confinement itself,” thus drawing a meaningful constitutional distinction between a challenge to the fact of a sentence and the resulting conditions of confinement incurred by that sentence. Conditions of confinement claims are most often raised under the “wanton infliction of pain” standard set under Whitley v. Albers (1986, at 320-321). This asks the question of whether in the use of prison force there was a good faith effort to maintain or restore discipline or “maliciously and sadistically to cause harm”(Hudson v. McMillian, 1992, at 1). It also tends to focus on pain inflicted “totally without penological justification” (Gregg v. Georgia, 1976, at 183). This has evolved into both excessive force claims and other unnecessary/wanton infliction of pain claims. It

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also can bear into deliberate indifference claims on some level. Excessive force was famously discussed in Hudson v. McMillian (1992). This was a case where prison guards unnecessarily beat inmates into compliance— and it was held to be “cruel and unusual punishment” because it was unnecessary for accomplishing the intended goal. The important fact of the case was that the inmate did not sustain any serious injury—and still the actions exercised against him were held unconstitutional under the Whitley rule (Hudson v. McMillian, 1992). Also notable in Hudson is Justice Blackmun’s concurrence, which suggested that psychological pain, as well as physical pain counts as pain for the purposes of the Eighth Amendment (Hudson v. McMillian, 1992). This naturally could become important in solitary confinement cases. Over time, “wanton infliction of pain” also evolved into a nuanced “deliberate indifference” test. This first came to be in Estelle v. Gamble (1976), where the Court held that deprivation of treatment for an inmate’s serious medical needs constitutes the wanton infliction of pain. Though prison guards were aware of the serious medical need, they refused to provide care. Hence this was established as deliberate indifference”to those needs. With time, this became more clearly defined. In Wilson v. Seiter (1991), the Court established that there is both an objective component and a subjective component in determining whether a conditions of confinement claim would stand. The “objective component,” the Court held, was the question of whether a deprivation was “sufficiently serious” to merit constitutional concern (Wilson v. Seiter, 1991, at 298). The language of deprivation is derived from Rhodes v. Chapman (1981, at 347), where the Court noted that prison conditions “alone or in combination, may deprive inmates of the minimal civilized measure of life’s necessities.” The “subjective” component asks whether prison officials acted with a culpable state of mind (Wilson v. Seiter, 1991, at 298). This rationale was applied and extended in Helling v. McKinney (1993), where an inmate who shared a cell with a heavy smoker alleged a serious risk of future harm from the second-hand smoke. The Court in that case held the prison’s non-action in the situation to be deliberate indifference to health and safety, thus establishing that serious risk of future harm could be grounds for constitutional claims. This was reaffirmed the following year in Farmer v. Brennan (1994), where prison guards were aware of a strong likelihood of a medical need but refused even to investigate it, thus acting in a deliberately indifferent manner. Deliberate indifference was also applied in the already discussed case of Madrid v. Gomez (1995). In Madrid, the deliberate indifference test was applied in regard to the prisoners’ mental health. In several cases, the prisoners were either known to have serious mental health conditions or would likely have been found to have such conditions had they received an intake screening. No such screening was undertaken so, under the Farmer standard, the prison warden was held liable

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since placing prisoners with severe mental health challenges in solitary confinement exacerbated their pre-existing condition (Madrid v. Gomez, 1995). In the earlier discussed case of Jones-El v. Berge, the District Court there also identified important lower court cases which elaborated on these rules, relevant to the unique concerns of solitary confinement. Though not nationally binding, they are insightful. For instance, in Estate of Cole by Pardue v. Fromm (1996), the Seventh Circuit held that suicide is a serious harm. The Seventh Circuit also affirmed the importance of mental health (Meriwether v. Faulkner, 1987). And one Texas District Court considered “mental torture” among possible forms of deprivation (Ruiz v. Johnson, 1999).

Applying the Constitution to Solitary Confinement

Thus far, the history and modern facts of solitary confinement have been established, along with an array of tests used in Eighth Amendment cases. Both categories are varied and at times difficult to define. However, for the purposes of this study’s inquiries, each of the key Eighth Amendment tests will be discussed and compared against the facts of solitary confinement that were raised earlier in this paper. Solitary Confinement and Evolving Standards of Decency The first test to apply is the “evolving standards of decency” test applied in Trop v. Dulles (1958). As noted earlier, this looks at what society broadly accepts. In Trop, the idea was that no decent society would strip someone of their nationality, especially under the circumstances prescribed by that law. It is important to recognize, then, that this focus was on the actual sentence—not on the conditions that it would produce. Of course, those were discussed for the sake of understanding what the sentence meant in real terms. But the focus was on the sentence, not on the conditions. Is it a fact that no decent society would permit solitary confinement? Not necessarily. It is true that the United Nations has denounced the use of solitary confinement in most cases—it has even called for the elimination of solitary confinement where possible. However, the United Nations has never called for a wholesale abolition of the practice, because there is a recognition that occasionally this practice must be used in the short term for disciplinary and safety reasons. What the United Nations has denounced is the United States’ widespread use of long term solitary confinement and solitary confinement for juveniles. But while this may be indicative of what a “decent” society would do, it is certainly not the dictate of American constitutional theory. The Constitution is the highest law in the land, unless the United States signs an international treaty, which then becomes the

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law of the land as well (U.S. Const. Art. VI, cl. 2). This is no treaty—it is only one consideration among many, to use the language of the Supreme Court in Hutto v. Finney (1978). Within this test—the vaguest and most loosely applied among Eighth Amendment tests—one must look at intra-jurisdiction punishments. A strong majority of states (38) permit the use of solitary confinement in some fashion. This suggests that there is nothing facially unconstitutional about solitary confinement on these grounds. Again, there has been a move among the states away from solitary confinement for juveniles, and smaller moves against the practice applied to the mentally ill and for indefinite periods of time (American Civil Liberties Union, 2014). This “trend” may be indicative of an ongoing evolution—but it is not the same kind of trend as was used in Roper, where the vast majority of states had banned capital punishment for minors. Thus, by this test, solitary confinement could only possibly be unconstitutional for juveniles, as that is the point where there is the strongest trend within and across jurisdictions. Proportionality and Solitary Confinement The issue of proportionality in solitary confinement may most closely relate to the Due Process issues which have previously arisen surrounding the punishment. This is because the most common reason a person is in solitary confinement is discipline for prison rule infractions, where they are placed after a constitutionally suspect disciplinary hearing—and there may be a proportionality question as to the response of complete isolation in reaction to various prison infractions. As noted earlier, proportionality is not reducible to a mere retributive calculus. If that were so, then a prison would need only apply an “eye for an eye and a tooth for a tooth” approach to discipline, and everything would be “proportional.” But our modern sensibilities tell us that is no constitutionally “proportional” approach to punishment. No, there is a reason that proportionality analysis is often tied to the question of penological justification. And in the case of solitary confinement, the penological justifications are often clear: a prisoner has posed a threat to another inmate or in some cases to society at large, and the prison has determined that the best way to ensure he does not harm others is to keep him in solitary confinement. This is punishment for the sake of security, which has been recognized by the Court as legitimate on multiple occasions. There may be a question as to the proportionality of long sentences in solitary confinement, but there is no strong proportionality argument against it on grounds of “gross proportionality,” which is the primary test used. Thus solitary confinement is likely unconstitutional on this count, as well. However, challenges to the length of confinement may need to be raised on other grounds. Length of confinement is something which, in the context of solitary

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confinement, the Court has previously viewed as a condition of confinement (Hutto v. Finney, 1978). In Hutto, the Court affirmed a 30-day maximum limit for solitary confinement that was imposed by the District Court in the case proceedings. While this does not provide a universal constitutional rule, it does bring some insight to the issue: limits on the length of solitary confinement terms are not de facto unconstitutional. Conversely, sentence lengths in solitary confinement for disciplinary reasons are not de facto exempt from judicial scrutiny. “Excessive force,” as mentioned earlier, is a standard which would not ordinarily apply to solitary confinement. As seen in Madrid v. Gomez (1995), it can certainly apply in particular circumstances—but prison brutality is neither an essential feature nor a typical characteristic of solitary confinement, so it can be mostly disregarded in this analysis, at least in the way it is traditionally applied. The one area where the more traditional wanton infliction of pain standard applies is in regard to psychological pain. As noted earlier, it has appeared in lower court decisions, including in relation to the effects of solitary confinement. However, there has been no clear definition of what constitutes “pain.” Surely pain is at times a part of punishment, and this may especially include psychological pain. But the “wanton” infliction of this psychological pain could possibly apply in the case of someone who, for example, is severely mentally ill but is sentenced to solitary confinement (and prison guards are aware or reasonably should be aware of the mental illness). Ultimately, then, even the “wanton” infliction of pain in the solitary confinement context must fold into the deliberate indifference test under current Court jurisprudence. This is where the most meaningful discussion can occur around this topic. First, consider the objective component of the “deliberate indifference standard.” This measures whether the deprivation is “sufficiently serious” to merit constitutional concern. It seems that any case which drives a prisoner to the point of suicide attempts, psychosis, or any similarly serious mental illness should merit such concern. In fact, even the risk of this kind of harm may merit constitutional concern under the Helling v. McKinney standard. While lung disease may threaten to take someone’s life after a long exposure to secondhand smoke, suicide could threaten to take someone’s life after just a short time in solitary confinement, particularly if that individual was predisposed to severe mental illness. That may be worth discussion. The second, or “subjective,” component of the Eighth Amendment is a question of prison culpability. If a prison is aware of an inmate’s illness and refuses to look into that mental illness—or to take action if a screening reveals harsh results—then that likely fails constitutional scrutiny under Farmer v. Brennan (1994). There is a blatant culpability issue, and if the harm is severe enough as to threaten the prisoner’s

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physical health or safety, then there is almost certainly a constitutional issue. The Court stated in Helling v. McKinney that “a remedy for unsafe conditions need not await a tragic event” (1993, at 33). Under the “deliberate indifference” standard, the more complex constitutional question may be whether the practice of placing severely mentally ill prisoners in solitary confinement is facially unconstitutional. This is more complex on three counts. First, this is generally not comparable to something like the death penalty. While the death penalty has been ruled unconstitutional when applied to the mentally handicapped, that has to do with an actual handicap, which may be different from the mental illness faced by many prisoners in solitary confinement. But even if the difference was meaningless, the stage in proceedings is different because in most cases prisoners are not sentenced to solitary confinement: they are instead sentenced to prison and during their time as inmates an infraction lands them in solitary confinement. Insofar as convicts are sentenced to solitary confinement and their severe mental illness is established prior to such sentence (perhaps even prior to conviction), it very well may be unconstitutional to place that individual in solitary confinement, as it would likely exacerbate that known condition. Any court imposing such a standard would do well to consider the likely surge in claims to mental illness for prisoners facing such a sentence, but it certainly could be unconstitutional to impose such a sentence. Second, if a prisoner’s removal to solitary confinement does occur when they are already inmates, then the culpability issue makes it difficult to say that such sentences are facially unconstitutional. That would essentially force prison systems to preliminarily screen inmates for mental illness prior to sending them to solitary confinement and to continue routine screenings thereafter to avoid litigation. Again, this certainly could be appropriate, but it may be more akin to the Rhodes issue of double-celling (which was a legislative solution) than a problem requiring a constitutional remedy—at least on an as-applied level. Third, regardless of whether the Court defined the practice as unconstitutional for the severely mentally ill at either the sentencing or disciplinary levels, there would be a challenge in defining “severe mental illness.” To be sure, there are obvious cases of psychosis or schizophrenia. But what about a case like severe depression that could cause the prisoner to attempt suicide? Or, if that was an obvious case, would mild depression be included because it could be worsened by solitary confinement and become severe depression? What about the potential for depression in someone who does not even have such a condition? While the standard may not immediately stretch so far, the Court would certainly have to evaluate such concerns before declaring solitary confinement unconstitutional for the mentally ill at a facial level. However, supposing that the Court could find a way to circumvent these concerns, this may be the most constitutional approach. It would be far better

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for states to eliminate this practice to avoid the Court drawing policy brightlines. However, it could be appropriate for the Court to intervene if the opportunity presents itself. There is little doubt that solitary confinement may at times be necessary—even the liberal United Nations has not called for its total abolition (though it supports such efforts where they exist). But the effects of long-term confinement, particularly for those who suffer a severe mental illness, are not negligible concerns and may warrant judicial intervention.

Conclusion Solitary confinement began as an attempt to reform prisoners through penitence. It continued as a means of retaining prisoners sentenced to execution, until their execution date. In recent years, it has been used as a form of safety for the general prison population and sometimes society at large. States have restricted its use for juveniles and in some cases for the mentally-ill, yet the last count showed that 80,000 prisoners were still being housed in some form of restricted housing with little connection to the outside world. These prisoners may attempt suicide. They may write in their own blood. They may enter a state of total psychosis. And this is certainly a state so harmful as to warrant constitutional intervention, at least if the prison is culpable for exacerbating a severe mental health condition. Long-term confinement, especially for those who do have a severe mental illness, is virtually synonymous with psychological torture. It is a deprivation just as starvation is a deprivation. Yet in this case, it is not food of which the prisoner is deprived. It is the lost connection with humanity, the stripping of a link to sanity. It is, in short, a starvation of the spirit, and on those grounds it merits constitutional review.

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Reference List 42 U.S.C. ยง 1983. American Civil Liberties Union. (2014). The dangerous overuse of solitary confinement in the United States. Retrieved from https://www.aclu.org/ report/dangerous-overuse-solitary-confinement-united-statess. Baxter v. Palmigiano, 425 U.S. 308 (1976). Bell v. Wolfish, 441 U.S. 520 (1979). Brooks v. Florida, 389 U.S. 413 (1967). Carnley v. Cochran, 369 U.S. 506 (1962). Casella, J., & Ridgeway, J. (2012, February 1). How many prisoners are in solitary confinement in the United States? Solitary Watch. Retrieved from http:// solitarywatch.com/2012/02/01/how-many-prisoners-are-in-solitaryconfinement-in-the-united-states/ Coker v. Georgia, 433 U.S. 584 (1977). Cooper, A. Q. (2017). Beyond the reach of the constitution: A new approach to juvenile solitary confinement reform. Columbia Journal of Law and Social Problems, 50(3), 343-377. Cooper v. Pate, 378 U.S. 546 (1964). Cruz v. Beto, 405 U.S. 319 (1972). Davenport v. DeRobertis, 844 F.2d 1310 (7th Cir. 1984). Dickens, C. (1913). American Notes. London, UK: Chapman & Hall, Ltd. Retrieved from http://www.gutenberg.org/files/675/675-h/675-h.htm Estate of Cole by Pardue v. Fromm, 94 F.3d 254, (7th Cir. 1996). Estelle v. Gamble, 429 U.S. 97 (1976). Ex parte Spencer, 228 U.S. 652 (1913).

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Farmer v. Brennan, 511 U.S. 825 (1994). Forte, D. F. (2014). Cruel and unusual punishment. Heritage Foundation. Retrieved from https://www.heritage.org/constitution/#!/amendments/8/ essays/161/cruel-and-unusual-punishment Gordon, S. E. (2014). Solitary confinement, public safety, and recidivism. University of Michigan Journal of Law Reform, 47(2), 495-528. Gregg v. Georgia, 428 U.S. 153 (1976). Haines v. Kerner, 404 U.S. 519 (1972). Harmelin v. Michigan, 501 U.S. 951 (1991). Helling v. McKinney, 509 U.S. 25 (1993). Holden v. Minnesota, 137 U.S. 483 (1890). Holt v. Sarver, 309 F.Supp.362 (E.D. Ark. 1970). Houghton v. Shafer, 392 U.S. 639 (1968). Hresko, T. (2006). In the cellars of the hollow men: Use of solitary confinement in U.S. prisons and its implications under international laws against torture. Pace International Law Review, 18(1), 1-27. Hudson v. McMillian, 503 U.S. 1 (1992), Blackmun, J. (joint opinion). Hudson v. McMillian, 503 U.S. 1 (1992). Hutto v. Finney, 437 U.S. 678 (1978). In re Kemmler, 136 U.S. 436 (1890). In re Medley, 134 U.S. 160 (1890). Inter-American Commission on Human Rights. (2013, April 3). Annex to the press release issued at the close of the 147th session [Press release]. Retrieved from http://www.oas.org/en/iachr/media_center/PReleases/2013/023A.asp Jackson v. Bishop, 404 F.2d 571 (1968).

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Jones-El v. Berge, 164 F.Supp.2d 1096 (W.D. Wis. 2001). Jones-El v. Berge, 374 F.3d 541 (2004). Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119 (1977). Lee, J., & Jacobs, R. (2012). Maps: Solitary confinement, state by state. Mother Jones. Retrieved from https://www.motherjones.com/politics/2012/10/mapsolitary-confinement-states/ Madrid v. Gomez, 889 F.Supp. 1146 (N.D. Cal. 1995). McCulloch v. Maryland, 17 U.S. 316 (1819). McElvaine v. Brush, 1432 U.S. 155 (1891). Meachum v. Fano, 427 U.S. 215 (1976). Meriwether v. Faulkner, 821 F.2d 408 (7th Cir. 1987). Montanye v. Haymes, 427 U.S. 236 (1976). Moore v. Michigan, 355 U.S. 155 (1957). Peers v. Greece, 2008-III Eur. Ct. H.R. 95. Pell v. Procunier, 417 U.S. 817 (1974). Preiser v. Rodriguez, 411 U.S. 475 (1973). Procunier v. Martinez, 416 U.S. 396 (1974). Quicksall v. Michigan, 339 U.S. 660 (1950). Rademacher, E. M. (2016). The beginning of the end: Using Ohio’s plan to eliminate juvenile solitary confinement as a model for statutory elimination of juvenile solitary confinement. William & Mary Law Review, 57(3), 10191054. Rhodes v. Chapman, 452 U.S. 337 (1981). Rogers v. Peck, 199 U.S. 425 (1905).

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Rooney v. North Dakota, 196 U.S. 319 (1905). Roper v. Simmons, 543 U.S. 551 (2005). Ruiz v. Johnson, 37 F. Supp. 2d 855 (S.D. Tex. 1999). Rummel v. Estelle, 445 U.S. 236 (1980). Sandin v. Conner, 515 U.S. 472 (1995). Shoener v. Pennsylvania, 207 U.S. 188 (1907). Trop v. Dulles, 356 U.S. 86 (1958). U.S. Const. amend. IIX. U.S. Const. Art. VI, cl. 2. U.S. Department of Justice/Federal Bureau of Prisons. (2011). Special housing units [Program statement]. Retrieved from https://www.bop.gov/policy/ progstat/5270_010.pdf U.S. Department of Justice/Office of the Inspector General. (2017). Review of the Federal Bureau of Prisons’ use of restrictive housing for inmate with mental illness. Retrieved from https://oig.justice.gov/reports/2017/e1705.pdf U.S. Department of Justice. (2016). Report and recommendations concerning the use of restrictive housing. Retrieved from https://www.justice.gov/archives/ dag/file/815551/download United Nations Committee against Torture. (2014). Concluding observations on the third to fifth periodic reports of United States of America. Retrieved from https://tbinternet.ohchr.org/Treaties/CAT/Shared%20Documents/KOR/ CAT_C_KOR_CO_3-5_27468_E.pdf United Nations General Assembly. (2011). Torture and other cruel, inhuman, or degrading treatment or punishment: Note by the Secretary-General (Report No. A/60/316). Retrieved from https://digitallibrary.un.org/record/557349/ files/A_60_316-EN.pdf Walton, B.B. (1997). The eighth amendment and psychological implications of solitary confinement. Law and Psychology Review, 21(1), 271-288.

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Weems v. United States, 217 U.S. 349 (1910). Whitley v. Albers, 475 U.S. 312 (1986). Wilson v. Seiter, 501 U.S. 294, (1991). Wilwording v. Swenson, 404 U.S. 249 (1971). Wolff v. McDonnell, 418 U.S. 539 (1974).

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UNLOCKING THE KEYSTONE STATE: WHERE AND WHY DONALD TRUMP WON IN PENNSYLVANIA

Matthew Hoke Abstract How did Donald J. Trump best Hillary Clinton in Pennsylvania in the 2016 general presidential election? This study seeks to help answer that question by examining where Donald Trump won at the county level in Pennsylvania. Following this examination, some potential reasons for Trump’s victory in Pennsylvania will be considered. The county analysis is accomplished by examining percentage totals for the Republican, Democratic, and other candidates at the county level for the 2000, 2004, 2008, 2012, and 2016 presidential elections. Trendline graphs showing the vote percentages from these five presidential elections were made for each of the 67 counties of Pennsylvania. This study hypothesizes that Pittsburgh, Philadelphia, and the counties surrounding Philadelphia exhibited historically-consistent percentages for Hillary Clinton while Donald Trump out-performed in the rest of the state’s counties. This study utilizes qualitative and quantitative data. ___________________________________

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Introduction It was November 4, 2016, just four days before the 2016 general presidential election, and crowds of people waited for hours to get into the arena. They were waiting to see Republican presidential candidate Donald Trump. Candidate Trump spoke to the electrified crowd totaling around 10,000 at the GIANT Center in Hershey, Pennsylvania (Esack, 2016). At the beginning of his speech, to the shouts and cheers of the throng, Trump said the following: Thank you very much everybody. This is amazing. And you know what, we have 7,000 people outside trying to get in, can you believe this?... In four days we are going to win the great state of Pennsylvania... and we are going to win back the White House. We are going to win it back. Unbelievable, look at this, maybe because I went to school in Pennsylvania, maybe that’s the reason…Maybe. My kids went to school in Pennsylvania. A smart place, Pennsylvania… We’re going to do it, folks. We’re going to do it. Oh, boy, are we going to win -- we are going to win Pennsylvania big. Look at this…I hear we set a new record for this building. And by the way, I didn’t have to bring JLo or Jay Z, the only way she [Hillary Clinton] gets anybody…Just me, no guitar, no piano, no nothing… But you know what we do have and it’s all of us, it’s all the same, we all have great ideas and great vision for our country, that’s what we have. (Trump, 2016, 00:02:05-00:09:45) But Trump’s confidence on that chilly November day was not completely grounded according to the polls. According to the Real Clear Politics (RCP) average on November 4, 2016, Donald Trump trailed Hillary Clinton by 2.6% in Pennsylvania (“Pennsylvania,” 2016). However, four days later, Trump became the first Republican presidential candidate since George H.W. Bush in 1988 to win the Keystone State (Fontaine & Zwick, 2016). Trump won Pennsylvania by 0.7% of the vote, winning 56 of Pennsylvania’s 67 counties (Pennsylvania Department of State, 2018). How did Donald Trump unlock the Keystone State? A full treatment of this question is far beyond the purview of this study. However, this study seeks to answer the question: where did Donald Trump win in the Keystone state? The hypothesis of this study is that Pittsburgh, Philadelphia, and Philadelphia’s surrounding counties exhibited historically-consistent percentages for Hillary Clinton while Donald Trump outperformed in the rest of the state’s counties, giving him the victory. After analyzing this hypothesis, this study will propose some potential reasons for why Pennsylvanians voted for Donald Trump.

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Literature Review The current research on and coverage of Trump’s victory in Pennsylvania is varied and incomplete. Certain articles have discussed Donald Trump’s margins of victory in Pennsylvania’s 67 counties or the number of votes he garnered in the state as a whole (Fontaine & Zwick, 2016; Meko, Lu, & Gamio, 2016; Meyer, 2016). In addition, certain sources have endeavored to give a first-hand look at Trump voters and supporters in Pennsylvania via interviews with these individuals (“1 Year Later,” 2017; Perry, 2018; Saul, 2016; Zaitchik, 2016). While they provide fascinating vignettes of Trump supporters in the Keystone State, these sources are merely anecdotal in nature. As a result, they are not terribly instructive for academic purposes. As of now, academic studies have not focused on why Trump won the counties that he did in Pennsylvania. Studies and commentary have focused more on broad explanations for why Trump won the election in general, and Pennsylvania in particular. For example, Francis Fukuyama propounded the idea that Trump won the 2016 election by identifying two real problems in the American political system: growing inequality between the nation’s elite and working class and special interest control of the federal government (Fukuyama, 2016). The inequality Fukuyama discussed is addressed by Kokotovic and Kurecic (2017) who cited white, workingclass alienation as a reason why Pennsylvania in 2016 saw “a structural break in voting patterns” (p. 761). The authors asserted that Trump’s appeal to white, working-class voters can be best understood via the lens of public choice theory, wherein each individual votes for what is most economically advantageous for them and best fits their self-interest (Kokotovic & Kurecic, 2017). Pollak and Schweikart (2017) concurred when they asserted the following: The white vote was especially important in…Pennsylvania. There disenfranchised voters who had been unemployed by Obama’s energy and trade policies had voted for Trump in the primaries and were willing to give him a chance in the Oval Office. By small but consistent margins these white voters would make the difference in the election. Inglehart and Norris (2016) categorized this view of Trump’s victory as “the economic inequality perspective” (p. 2). For Inglehart and Norris (2016), this perspective included a recognition that changes in the world economy, including globalization and technological advancement, have left certain sectors of the United States’ workforce behind. Ferguson, Jorgensen, and Chen (2018) described this increasing inequality as the “‘dual economy’ that locks increasingly more Americans out of the middle class and into a life of unsteady, low wage employment, and, all

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too often, steep debts” (p. 2). In response to these developments, the “economic have nots,” including the unemployed, white working-class voters, single parent families, and poor whites in cities, develop a greater distrust for the nation’s political elites and are more open to the appeals of populist candidates, such as Donald Trump (Inglehart & Norris, 2016). The appeal of such candidates for the economically downtrodden, according to Inglehart and Norris (2016), is blaming other groups, for example the establishment and illegal immigrants, for taking prosperity away from “us.” Steven Pressman (2017) examined income data since the 1960s and concluded that the shrinking middle class in the United States contributed to Donald Trump’s victory. Inderjeet Parmar (2017) examined the impact of this economic inequality on the legitimacy of the American ruling elite and, specifically, its effect on the United States’ politics. He asserted that the mindset that has driven income inequality has become instantiated in the politics and policies of the two major parties, alienating large numbers of voters and contributing to Trump’s triumph (Parmar, 2017). Trump’s victory, along with Bernie Sanders’ appeal, is the “political manifestation” of the elite’s legitimacy crisis (Parmar, 2017, p. 18). However, Eric A. Posner contended that the “economic nationalism” championed by Trump and embraced by many of his economically disadvantaged supporters is not a new phenomenon in American history (Posner, 2017). In fact, Posner asserted that this inward, “America first” focus in economic matters has great precedent in the history of the United States, dating back to the 1800s (Posner, 2017, p. 13). In addition, Rothwell and Diego-Rosell’s study concluded there is “mixed evidence that economic distress has motivated Trump support” (Rothwell & DiegoRosell, 2016, p. 1). This study found that Trump supporters earn “relatively high incomes” and “that there appears to be no link whatsoever between greater exposure to trade competition or competition from immigrant workers and support” for Trump’s policies (Rothwell & Diego-Rosell, 2016, p. 19). However, this study does find that support for Trump is heightened in regions or communities with “low levels of social or economic well-being” (Rothwell & Diego-Rosell, 2016, p. 19). Inglehart and Norris (2016) examined another theory of populist success, called “the cultural backlash thesis” (p. 1). In this theory, populists such as Donald Trump benefit from the reaction of more traditional voters in a society against progressive values and policies that have been gaining influence and greater adherence in that society (Inglehart & Norris, 2016). Another study by Paul Manuel (2017) examined Inglehart and Norris’ models of cultural backlash and economic insecurity through examining three groups of “issue clusters”: the secularization of America, “the rural-urban cleavage,” and “empathy for the forgotten man and woman” (p. 212). In relation to the cultural backlash thesis, Manuel (2017) found that the 2016 election

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did the following: [It] ignited the old cleavage between the secular values of a majority of the population living in the urban areas, university towns, and coastal areas, and the religious values of most people living in rural areas, especially in the south and middle parts of the country. (p. 218) Another potential factor in Trump’s Pennsylvania victory explored in the literature is the relation between mortality, public health, and voting patterns. In their study, Bilal, Cooper, and Knapp (2018) found that there is an increase in mortality rates in counties that voted for Trump in 2016. Particularly, they found that “counties with wider health inequalities in life expectancy were more likely to vote Republican in 2016, regardless of previous voting patterns,” and that counties with increasing rates of mortality and “wider health inequalities” in the past fifteen years shifted towards voting for Trump. Jacob Bor (2017) found similar results in his study, writing that there “was less support for Trump in counties experiencing greater survival gains” and that “[c]ounties in which life expectancy stagnated or declined saw a 10-percentage point increase in the Republican vote share between 2008 and 2016” (p. 1560).

Data and Methods This study seeks to examine where Donald J. Trump won in Pennsylvania. To that end, data from the Pennsylvania Department of State was compiled and formulated into graphs for all sixty-seven counties in Pennsylvania. These graphs record the percentage of the vote received for the Republican candidate, Democratic candidate, and third-party tickets for the presidential elections of 2000, 2004, 2008, 2012, and 2016. The trends created by this data allow the reader to see how Donald Trump and Hillary Clinton performed or underperformed against historical norms. Before examining the data, five clarifications are necessary. First, third-party tickets are categorized as “other” on the graphs. The other category includes the total percentage of all non-major party candidates. In the 2016 election, for example, these candidates included Libertarian candidate Gary Johnson and Green Party candidate Jill Stein. The research groups these percentages together because this study concerns itself with the two major party candidates of 2016: Hillary Clinton and Donald J. Trump. As a result, the graphs are mainly concerned with portraying the major parties’ vote percentages throughout PA. Second, the major party candidates for the 2000, 2004, 2008, 2012, and 2016 elections are the following respectively: Bush/ Cheney (R), Gore/Lieberman (D); Bush/Cheney (R), Kerry/Edwards (D); McCain/

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Palin (R), Obama/Biden (D); Romney/Ryan (R), Obama/Biden (D); Trump/Pence (R), Clinton/Kaine (D). Third, the trend lines on the graphs are colored according to the modern color schemes for the two major parties, red for the Republican Party (GOP) and blue for the Democratic Party (Enda, 2012). Fourth, by “historicallyconsistent percentages,” this study means no percentage varying by more than four percentage points from the 2012 presidential election results. Fifth, by “outperformed” this study means greater percentages than those gained by Mitt Romney in 2012.

Research The research will be divided into two sections. The first will show the graphs made from the Pennsylvania Department of State’s data. All graphs in the first section of the research are taken from the PA Department of State’s website (Pennsylvania Department of State, 2018). The second will discuss the results shown by the graphs and their relation to the hypothesis.

Section I

The following two figures provide information necessary to understanding the graphs in Section I of the research. Figure 1 shows the overall results of the 2000 to 2016 general Presidential elections in Pennsylvania. Figure 2 is a map of Pennsylvania with its sixty-seven counties. These figures serve as a reference for the graphs in Section I of the research.

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Figure 1. Presidential election data: Pennsylvania, 2000-2016.

Figure 2. Map of Pennsylvania counties (Housing Alliance of Pennsylvania, 2016).

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Figure 3. Presidential election data: Erie County, Pennsylvania, 2000-2016.

Figure 4. Presidential election data: Crawford County, Pennsylvania, 20002016.

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Figure 5. Presidential election data: Warren County, Pennsylvania, 2000-2016.

Figure 6. Presidential election data: McKean County, Pennsylvania, 2000-2016.

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Figure 7. Presidential election data: Potter County, Pennsylvania, 2000-2016.

Figure 8. Presidential election data: Tioga County, Pennsylvania, 2000-2016.

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Figure 9. Presidential election data: Bradford County, Pennsylvania, 2000-2016.

Figure 10. Presidential election data: Susquehanna County, Pennsylvania, 2000-2016.

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Figure 11. Presidential election data: Wayne County, Pennsylvania, 2000-2016.

Figure 12. Presidential election data: Pike County, Pennsylvania, 2000-2016.

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Figure 13. Presidential election data: Mercer County, Pennsylvania, 2000-2016.

Figure 14. Presidential election data: Venango County, Pennsylvania, 20002016.

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Figure 15. Presidential election data: Forest County, Pennsylvania, 2000-2016.

Figure 16. Presidential election data: Elk County, Pennsylvania, 2000-2016.

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Figure 17. Presidential election data: Cameron County, Pennsylvania, 20002016.

Figure 18. Presidential election data: Clinton County, Pennsylvania, 2000-2016.

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Figure 19. Presidential election data: Lycoming County, Pennsylvania, 20002016.

Figure 20. Presidential election data: Sullivan County, Pennsylvania, 20002016.

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Figure 21. Presidential election data: Wyoming County, Pennsylvania, 20002016.

Figure 22. Presidential election data: Lackawanna County, Pennsylvania, 20002016.

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Figure 23. Presidential election data: Lawrence County, Pennsylvania, 20002016.

Figure 24. Presidential election data: Clarion County, Pennsylvania, 2000-2016.

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Figure 25. Presidential election data: Jefferson County, Pennsylvania, 20002016.

Figure 26. Presidential election data: Clearfield County, Pennsylvania, 20002016.

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Figure 27. Presidential election data: Centre County, Pennsylvania, 2000-2016.

Figure 28. Presidential election data: Union County, Pennsylvania, 2000-2016.

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Figure 29. Presidential election data: Northumberland County, Pennsylvania, 2000-2016.

Figure 30. Presidential election data: Montour County, Pennsylvania, 20002016.

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Figure 31. Presidential election data: Columbia County, Pennsylvania, 20002016.

Figure 32. Presidential election data: Luzerne County, Pennsylvania, 20002016.

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Figure 33. Presidential election data: Monroe County, Pennsylvania, 20002016.

Figure 34. Presidential election data: Beaver County, Pennsylvania, 2000-2016.

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Figure 35. Presidential election data: Butler County, Pennsylvania, 2000-2016.

Figure 36. Presidential election data: Armstrong County, Pennsylvania, 20002016.

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Figure 37. Presidential election data: Indiana County, Pennsylvania, 2000-2016.

Figure 38. Presidential election data: Cambria County, Pennsylvania, 20002016.

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Figure 39. Presidential election data: Blair County, Pennsylvania, 2000-2016.

Figure 40. Presidential election data: Huntingdon County, Pennsylvania, 20002016.

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Figure 41. Presidential election data: Mifflin County, Pennsylvania, 2000-2016.

Figure 42. Presidential election data: Juniata County, Pennsylvania, 2000-2016.

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Figure 43. Presidential election data: Snyder County, Pennsylvania, 2000-2016.

Figure 44. Presidential election data: Schuylkill County, Pennsylvania, 20002016.

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Figure 45. Presidential election data: Carbon County, Pennsylvania, 20002016.

Figure 46. Presidential election data: Northampton County, Pennsylvania, 2000-2016

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Figure 47. Presidential election data: Washington County, Pennsylvania, 20002016.

Figure 48. Presidential election data: Allegheny County, Pennsylvania, 20002016.

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Figure 49. Presidential election data: Westmoreland County, Pennsylvania, 2000-2016.

Figure 50. Presidential election data: Perry County, Pennsylvania, 2000-2016.

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Figure 51. Presidential election data: Dauphin County, Pennsylvania, 20002016.

Figure 52. Presidential election data: Lebanon County, Pennsylvania, 20002016.

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Figure 53. Presidential election data: Berks County, Pennsylvania, 2000-2016.

Figure 54. Presidential election data: Lehigh County, Pennsylvania, 2000-2016.

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Figure 55. Presidential election data: Montgomery County, Pennsylvania, 2000-2016.

Figure 56. Presidential election data: Bucks County, Pennsylvania, 2000-2016.

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Figure 57. Presidential election data: Greene County, Pennsylvania, 2000-2016.

Figure 58. Presidential election data: Fayette County, Pennsylvania, 2000-2016.

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Figure 59. Presidential election data: Somerset County, Pennsylvania, 20002016.

Figure 60. Presidential election data: Bedford County, Pennsylvania, 20002016.

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Figure 61. Presidential election data: Fulton County, Pennsylvania, 2000-2016.

Figure 62. Presidential election data: Franklin County, Pennsylvania, 20002016

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Figure 63. Presidential election data: Cumberland County, Pennsylvania, 20002016.

Figure 64. Presidential election data: Adams County, Pennsylvania, 2000-2016.

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Figure 65. Presidential election data: York County, Pennsylvania, 2000-2016.

Figure 66. Presidential election data: Lancaster County, Pennsylvania, 20002016.

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Figure 67. Presidential election data: Chester County, Pennsylvania, 20002016.

2016.

Figure 68. Presidential election data: Delaware County, Pennsylvania, 2000-

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Figure 69. Presidential election data: Philadelphia County, Pennsylvania, 20002016.

Section II

The figures in the previous section illustrate the vote percentages Donald Trump and Hillary Clinton garnered in the sixty-seven counties of Pennsylvania in the 2016 general presidential election. These graphs allow us to test the hypothesis of this study. The hypothesis of this study is that Pittsburgh, Philadelphia, and Philadelphia’s surrounding counties exhibited historically-consistent percentages for Hillary Clinton while Donald Trump outperformed in the rest of Pennsylvania’s counties, giving him the victory. Figures 48, 55, 56, 67, 68, and 69 show that Clinton won Allegheny County (which includes Pittsburgh), Montgomery, Bucks, Delaware, Chester, and Philadelphia Counties with historically-consistent percentages. Beyond these, Clinton won five other counties as discussed below. Figures 5, 16, 17, 18, 26, 38, 44, 45, 57, and 58 are some of the strongest examples of Trump’s outperformance in the rest of Pennsylvania’s counties. Figure 70 shows what counties Hillary Clinton and Donald Trump won on a map of Pennsylvania (“Pennsylvania results,” 2017).

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Figure 70. Presidential election results in Pennsylvania, by county (“Pennsylvania Results,” 2017). Of the five other counties Clinton won, three of them showed historicallyconsistent percentages. These were Centre County (Figure 27), Dauphin County (Figure 51), and Lehigh County (Figure 54). However, Lackawanna County (Figure 22), and Monroe County (Figure 33) showed a 7.35-point and 12.84-point decrease respectively for Hillary Clinton over President Barack Obama’s results in 2012. Apart from failing to consider the impact of these other five counties that Clinton won, the hypothesis accurately surmised that Clinton’s performance in Allegheny, Bucks, Chester, Delaware, Montgomery, and Philadelphia counties was historicallyconsistent. In addition, apart from the historically-consistent cases of Butler County, (Figure 35), Cumberland County (Figure 63), and Lancaster County (Figure 66), the hypothesis also accurately stated that Trump outperformed historic trends throughout the rest of the state’s counties. As a result, the null hypothesis is rejected. However, the hypothesis failed to consider the significance of Lackawanna County, Bucks County, and Monroe County in Trump’s victory. According to Kraus, Clinton masterfully executed the common strategy for Democratic presidential candidates in Pennsylvania (Kraus, 2016). She focused her attention on Philadelphia County, winning it handily, and on its four surrounding counties as well as Allegheny County (Kraus, 2016).

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However, Clinton came up short of winning the state for two reasons. First, Trump outperformed historic trends in 54 of the 57 PA counties he won (Kraus, 2016). Second, even in counties she did win, such as Bucks, Lackawanna, and Monroe, Hillary Clinton underperformed from what she needed to ensure her victory (Kraus, 2016; Panaritis, Purcell, Brennan, & Couloumbis, 2016). Madonna and Young’s (2016) predictions about what Trump needed to do to win Pennsylvania held true. Writing on July 17, 2016, the authors stated that Trump needed to minimize Clinton’s victories in the counties surrounding Philadelphia (Madonna & Young, 2016). This occurred with Clinton winning Bucks, Chester, Montgomery, and Delaware counties at historically-consistent percentages. Second, the authors stated that Trump needed to win the “dozen or so rustbelt counties surrounding Pittsburgh” with greater percentages than Mitt Romney had in 2012 (Madonna & Young, 2016, p. 20). Apart from Butler County (Figure 35), Figures 13, 14, 23, 24, 34, 36, 37, 47, 49, 57, and 58 show that Trump managed to do this. So far, this study has examined where Donald Trump won in Pennsylvania. But why did he win the Keystone State? A complete answer to this question is far beyond the purview of this study. However, one factor that may have helped Trump win the Keystone State was the economic situation in Pennsylvania during 2016. This situation can be best seen through four factors. First, Pennsylvania was experiencing sluggish GDP growth. According to the Bureau of Economic Analysis (2016), in 2015 Pennsylvania experienced a GDP growth rate of 1.02% when compared to 2.4% for the United States as a whole. A second economic factor potentially at play in the election was the seasonally adjusted unemployment rate in Pennsylvania, which according to the Bureau of Labor Statistics (2017) was 5.8% in October of 2016. While this unemployment rate was lower than the 8.9% unemployment rate of October 2009, the October 2016 rate for PA was still greater than the national unemployment rate of 4.9% for that month (Bureau of Labor Statistics, 2010; Bureau of Labor Statistics, 2018). Third, according to the BLS, Pennsylvania lost a total of 53,200 manufacturing jobs between January 2009 and November 2016 (Bureau of Labor Statistics, 2018). Fourth, the Affordable Care Act resulted in higher proposed insurance premiums for Pennsylvanians (Mamula, 2016). For example, in May 2016, the average proposed premium percentage increase of health insurers in Pennsylvania was “23.6 percent for individual plans and 7.9 percent for small group plans” (Wenner, 2016, p. 3). While it would be reductionistic to simply follow the aphorism that “it’s the economy, stupid,” the above indicators of economic hardship in Pennsylvania should not be ignored as potential causes for Trump’s victory. Of course, this analysis does not and cannot consider how these factors affected individual counties in Pennsylvania, and, in turn, how that effect, if any, influenced individuals in certain

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counties to vote for Donald Trump. Future research should focus on the economic factor, the “economic inequality perspective,” when analyzing why certain counties in Pennsylvania voted the way they did in the 2016.

Conclusion Why did Pennsylvania vote for Donald Trump in 2016, the first Republican nominee to win the state in twenty-eight years? There are a number of possible factors, including the cultural alienation hypothesis and economic alienation perspective. What is certain is that Donald Trump broke the Democrats’ tested strategy for winning Pennsylvania. Will this trend continue? It will be fascinating to see how the Keystone State acts in the 2020 presidential election. For now, one thing is certain: Trump “won Pennsylvania big,” at least from a historical standpoint, and the influence of that win on American history and the nation’s political system is incalculable

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Reference List 1 year later revisiting 2 election battleground states. (2017, November 7). NPR. Retrieved from https://search.proquest.com/ docview/1963193300?accountid=13113 Bilal, U., Cooper, R. S., & Knapp, E. A. (2018). Swing voting in the 2016 presidential election in counties where midlife mortality has been rising in white non-Hispanic Americans. Social Science and Medicine, 197, 33-38. doi:10.1016/j.socscimed.2017.11.050 Bor, J. (2017, October). Diverging life expectancies and voting patterns in the 2016 US presidential election. American Journal of Public Health, 107(10), 1560-1562. doi:10.2105/AJPH.2017.303945 Bureau of Economic Analysis. (2016, June 14). Information industry group led growth across states in the fourth quarter. BEA Blog. Retrieved from https:// blog.bea.gov/2016/06/14/information-industry-group-led-growth-acrossstates-in-the-fourth-quarter/ Bureau of Labor Statistics. (2018). State and area employment, hours, and earnings: Pennsylvania, manufacturing [Data set]. Retrieved April 15, 2018, from https://data.bls.gov/timeseries/SMS42000003000000001?data_ tool=XGtable Bureau of Labor Statistics. (2010, January 22). Regional and state employment and unemployment – December 2009 [Press release]. Retrieved from https://www. bls.gov/news.release/archives/laus_01222010.pdf Bureau of Labor Statistics. (2017, January 24). Regional and state employment and unemployment – December 2016 [Press release]. Retrieved from https://www. bls.gov/news.release/archives/laus_01242017.pdf Bureau of Labor Statistics. (2018). Labor force statistics from the current population survey: Unemployment rate (seasonally adjusted) [Data set]. Retrieved April 15, 2018, from https://data.bls.gov/pdq/ SurveyOutputServlet?request_action=wh&graph_name=LN_cpsbref3 Enda, J. (2012, October 31). When Republicans were blue and Democrats were red. Smithsonian.com. Retrieved from https://www.smithsonianmag.com/ history/when-republicans-were-blue-and-democrats-were-red-104176297/

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Esack, S. (2016, November 4). Trump rally draws thousands of supporters in Hershey. The Morning Call. Retrieved from http://www.mcall.com/news/ nationworld/pennsylvania/mc-pa-trump-clinton-hershey-1104-20161104story.html Ferguson, T., Jorgensen, P., & Chen, J. (2018). Industrial structure and party competition in an age of Hunger Games: Donald Trump and the 2016 presidential election (Working paper No. 66). Institute for New Economic Thinking. Retrieved from https://www.ineteconomics.org/uploads/papers/ Ferg-Jorg-Chen-INET-Working-Paper-Industrial-Structure-and-PartyCompetition-in-an-Age-of-Hunger-Games.pdf Fontaine, T., & Zwick, K. (2016, November 9). Trump flipped 3 Pennsylvania counties that went to Obama in 2012. Trib Live. Retrieved from http:// triblive.com/politics/politicalheadlines/11448443-74/trump-county-clinton Fukuyama, F. (2016, November 9). Trump and American political decay. Foreign Affairs. Retrieved from https://www.foreignaffairs.com/articles/unitedstates/2016-11-09/trump-and-american-political-decay Housing Alliance of Pennsylvania. (2016). [Graph illustration]. Pennsylvania County Map. Retrieved from https://housingalliancepa.org/pennsylvaniacounty-map-2/ Inglehart, R. F., & Norris, P. (2016). Trump, Brexit, and the rise of populism: Economic have-notes and cultural backlash (Working paper No. RWP16026). Harvard Kennedy School. Retrieved from https://research.hks.harvard. edu/publications/workingpapers/citation.aspx?PubId=11325 Kokotovic, F., & Kurecic, P. (2017). An empirical analysis of voting patterns in four battleground states in the 2016 presidential election. Teorija in praksa, 54(5), 747-764. Retrieved from https://www.academia.edu/35133028/ An_Empirical_Analysis_of_Voting_Patterns_in_four_Battleground_States_ of_the_2016_US_Presidential_Election Kraus, S. (2016, November 9). How Donald Trump managed to turn Pennsylvania red. The Morning Call. Retrieved from http://www.mcall.com/ news/local/elections/mc-how-trump-won-pennsylvania-20161109-story. html

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Madonna, G. T., & Young, M. (2016, June 17). Trump’s keys to the Keystone state. Real Clear Politics. Retrieved from https://www.realclearpolitics.com/ articles/2016/06/17/trumps_keys_to_the_keystone_state_130908.html Mamula, K. B. (2016, May 25). Insurers seek hefty rate increase for ACA coverage. Pittsburgh Post-Gazette. Retrieved from http://www.postgazette.com/business/healthcare-business/2016/05/25/Insurersincluding-Highmark-seek-much-higher-rates-for-Obamacare-plans/ stories/201605250160 Manuel, P. C. (2017). Of cultural backlash and economic insecurity in the 2016 American presidential election. Política & Sociedade: Florianopolis, 16(36), 212-227. Retrieved from https://search.proquest.com/ docview/1963912471?accountid=13113 Meko, T., Lu, D., & Gamio, L. (2016, November 11). How Trump won the presidency with razor-thin margins in swing states. Washington Post. Retrieved from https://www.washingtonpost.com/graphics/politics/2016election/swing-state-margins/ ` Meyer, J. (2016, November 9). Trump’s Pennsylvania victory by the numbers. 16 WNEP. Retrieved from http://wnep.com/2016/11/09/trumps-pennsylvaniavictory-by-the-numbers/ Panaritis, M., Purcell, D., Brennan, C., & Couloumbis, A. (2016, November 10). How Trump took Pennsylvania: Wins everywhere (almost) but the Southeast. The Inquirer. Retrieved from http://archive.is/ceAPy Parmar, I. (2017). The legitimacy crisis of the U.S. elite and the rise of Donald Trump. Insight Turkey, 19(3), 9-22. doi:10.25253/99.2017193.01 Pennsylvania Department of State. (2018). Official election returns. Retrieved April 15, 2018, from https://www.electionreturns.pa.gov/ Pennsylvania results. (2017, September 13). New York Times. Retrieved from https://www.nytimes.com/elections/results/pennsylvania Pennsylvania: Trump vs. Clinton vs. Johnson vs. Stein. (2016). Real Clear Politics. Retrieved from https://www.realclearpolitics.com/epolls/2016/president/pa/ pennsylvania_trump_vs_clinton_vs_johnson_vs_stein-5964.html

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Perry, C. (2018). In America: Tales from Trump country. Dublin: Gill Books. Pollak, J. B. & Schweikart, L. (2017). How Trump won: The inside story of a revolution. Washington, DC: Regnery Publishing. Posner, E. A. (2017). Can it happen here?: Donald Trump and the paradox of populist government (Working paper No. 605). University of Chicago Law School. Retrieved from http://dx.doi.org/10.2139/ssrn.2893251 Pressman, S. (2017). The fall of the U.S. middle class and the hair-raising ascent of Donald Trump. Real-World Economics Review, (78), 112-124. Retrieved from http://www.paecon.net/PAEReview/issue78/whole78.pdf Rothwell, J. T., & Diego-Rosell, P. (2016). Explaining nationalist political views: The case of Donald Trump (Working paper). http://dx.doi.org/10.2139/ ssrn.2822059 Saul, J. (2016, December 5). Why Did Donald Trump win? Just visit Luzerne County, Pennsylvania. Newsweek. Retrieved from http://www.newsweek. com/2016/12/16/donald-trump-pennsylvania-win-luzerne-county-527861. html Trump, D. (2016, November 4). Donald Trump campaign rally in Hershey, Pennsylvania [Speech transcript]. CSPAN. Retrieved from https://www.cspan.org/video/?418009-1/donald-trump-campaigns-hershey-pennsylvania Wenner, D. (2016, May 25). New Obamacare premium proposals threaten sticker shock in PA. PennLive. Retrieved from http://www.pennlive.com/ news/2016/05/2017_premiums_increases_exchan.html Zaitchik, A. (2016). The gilded rage: A wild ride through Donald Trump’s America. New York, NY: Skyhorse Publishing.

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REDUCING THE ABORTION RATE: A SEARCH FOR EFFECTIVE SOLUTIONS Jacob Settle Abstract Since a complete ban on abortion is unlikely to be implemented soon, this study examines methods to reduce the abortion rate in the United States. The research question of this study is whether policies designed to reduce the abortion rate are effective. To answer this question, this study measures the effects of a number of policies on the abortion rate, including: regulating abortion facilities through TRAP laws, prohibiting Medicaid from funding abortions, increasing the real cost of abortions, requiring parental involvement in abortion decisions for minors, expanding funding for women’s healthcare, increasing access to contraceptives, implementing sound economic policy, and encouraging adoption as an alternative to abortion. This study concludes that combinations of the above policies are effective at reducing the abortion rate and examines the best ways to implement them. ___________________________________

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Introduction Abortion rates are currently declining across the United States. In fact, the abortion rate in the United States is at its lowest level since Roe v. Wade (McCammon, 2017). This study seeks to explain why the abortion rate is declining and answer the research question of which policies designed to reduce the abortion rate are most effective. In order to answer this research question, this study will examine two types of policies: those that decrease abortion accessibility and those that decrease personal demand for an abortion. Since an outright ban on abortion is unlikely to be achieved in the near future, this study is of critical importance to pro-life legislators who desire to immediately reduce the abortion rate as much as possible. Even though this study seeks effective ways to reduce the abortion rate, it is also valuable for pro-choice leaders, since it can open the door to policy compromises with pro-life advocates. While this study does not take a position on the morality of abortion, it seeks practical policies that could reduce the abortion rate without banning it outright. In the political realm, pro-choice and pro-life leaders are quick to claim the reduced abortion rate as a victory for their respective sides of the abortion debate. Pro-choice activists argue that the reduced abortion rate is a result of increased access to contraceptives and family planning services. They argue that these provisions reduce the rate of unplanned pregnancies, which in-turn reduces the abortion rate. On the other hand, pro-life advocates view the reduced abortion rate as proof that impediments to abortion access are successful. This study seeks to evaluate both of these positions broadly by analyzing secondary data and then proposes a policy combination that will reduce the abortion rate most effectively. This study hypothesizes that accessibility-oriented policies like regulating abortion providers, prohibiting taxpayer money from funding abortions, increasing the real cost of abortion, and requiring parental involvement for minors will decrease the abortion rate in the short-term. This study also hypothesizes that policies designed to decrease abortion demand by increasing the availability of women’s healthcare, encouraging contraceptive use, formulating sound economic policy, and suggesting adoption as an alternative to abortion are all effective at reducing the abortion rate in the long-term. To analyze these hypotheses, this study will analyze the effect on the abortion rate that each of these policies had in countries and states where they have been implemented.

Literature Review When considering what combinations of factors reduce the abortion rate, it is critical to examine the results of previous research on specific policies. Interestingly,

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the National Academies of Sciences, Engineering, and Medicine’s Committee on Reproductive Health Services (2018) found that the abortion rate in the United States has been cut in half since 1980. While this study does not explain the reasons for this development, it encourages further research to determine the causes behind this change. When analyzing how to effectively lower the abortion rate in America, it is important to examine policies tried in other countries. Sedgh et al. (2016) found that countries with a full ban on abortions actually had a higher abortion rate than countries without bans. However, most of the countries studied were in the developing world. Thus, while it is hard to apply their findings to America, their conclusion that increased access to contraceptives and sexual education lowers the abortion rate is notable (Sedgh et al., 2016). When considering developed nations, it is also interesting that the United States has a higher abortion rate than most other first-world countries (Dehlendorf, Harris, & Weitz, 2013). The gap between the United States and other first-world countries suggests that different policy combinations may be able to reduce the U.S. abortion rate and close the gap. Within the United States, different demographics of women undergo abortions at drastically different rates. Income and race/ethnicity are both independently associated with abortion rates, as low-income women have a higher abortion rate than affluent women while minority women have higher abortion rates than white women (Dehlendorf et al., 2013). Comparing the varying abortion rates in states with differing abortion policies, Blank, George, and London (1994) found that while ideological differences between states have little effect on the abortion rate, policy differences between states do. For instance, states with restrictions on Medicaid funding for abortions and states with fewer abortion clinics had lower abortion rates (Blank et al., 1994). Furthermore, states with higher unemployment had higher abortion rates, with rises in unemployment increasing the abortion rate consistently (Blank et al., 1994). Examining another state policy, Stranger-Hall and Hall (2011) determined that states and countries that use abstinence-only sexual education curricula have higher abortion rates than states and countries that offer comprehensive sexual education. Using Texas as a case study, Packham (2017) found that cutting government funding for family planning services and closing abortion clinics increases the birth rate. Making the assumption that increased birth rates lead to increased abortion rates, Packham (2017) argued that the abortion rate should increase in Texas. However, Quast, Gonzalez, and Ziemba (2017) conducted a study on the abortion rate in Texas and concluded that, despite the resulting increase in birth rates, decreasing the number of abortion clinics lowered the Texas abortion rate by at least 10%. They attributed this development to patients being unwilling to drive more

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than 100 miles to undergo an abortion. Synthesizing these Texas case studies with national data, Quast et al. (2017) concluded that stringent regulation of abortion facilities leads to lower abortion rates. Focusing on the broad economic aspects of abortion demand, Medoff (2007) found that increasing the price of an abortion reduces the abortion rate by 20%. In addition to lowering abortion rates, increased abortion costs also reduce pregnancy rates by encouraging women to practice safer sex (Medoff, 2007). Furthermore, Medoff ’s (2007) study found that parental consent laws are effective at reducing the abortion rate. Even though some policies are effective, other policies are ineffective at reducing the abortion rate and only fuel political controversy. For instance, Medoff (2007) found that a mandatory waiting period before receiving an abortion and mandatory counseling both had no impact on abortion demand or abortion rates.

Data and Methods This study will evaluate both quantitative and qualitative studies to determine what policies effectively reduce the abortion rate after they are implemented. For the purposes of this study the independent variable will always be the policy and the dependent variable will always be the abortion rate. To operationalize the dependent variable, this study will measure the abortion rate as the number of abortions per 1,000 women. By comparing the results with existing literature, this study will seek to reduce the effects of intervening variables in its analysis. Furthermore, this study will reduce the impact of intervening variables by accurately analyzing the temporal relationships between specific policies and subsequent changes in the abortion rate. In order to effectively produce a policy recommendation, this study will explore two methods of lowering the abortion rate: reducing accessibility to abortion and decreasing personal demand for abortion. In order to measure the effects on the abortion rate of these two general types of policies, this study will evaluate the methodology of conflicting studies and scrutinize the strengths and weaknesses of each study’s approach. After evaluating numerous case studies, quantitative data sets, and qualitative analyses, this paper will synthesize the data to formulate a conclusion that puts forth an effective combination of policies that reduces the abortion rate. If a policy results in a subsequent reduction in the abortion rate, this paper will classify it as effective; if it does not, it will classify it as ineffective. If the policy combinations put forth in the hypotheses are found to be effective, this paper will conclude that the hypotheses are supported. Finally, this paper will recommend specific ways to introduce policy changes in politically charged environments.

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Research Reducing Accessibility to Abortion

Limiting access to abortion, while not effective at altering personal opinions about abortion, may reduce the abortion rate. However, since these policies involve strong regulation, they are likely to be more politically controversial. Conservative legislators often try to reduce abortion rates by reducing the number of abortion facilities. In order to force abortion facilities to close, some states have enacted targeted regulations of abortion providers, otherwise known as Targeted Regulation of Abortion Providers (TRAP) laws (Quast et al., 2017). In 2016, 28 states had TRAP restrictions on the books that limited abortion facilities, clinicians, or both. It appears that these regulations are effective at lowering the number of abortion providers. For instance, from 2008 to 2011 the number of abortion facilities in the United States decreased from 1,800 to 1,720 (Quast et al., 2017). Furthermore, from 2011 to 2017, 162 abortion facilities closed, while only 21 opened, leaving the total number of abortion facilities in the United States, as of January 2017, around 1,579 (Quast et al., 2017). The reduction of abortion clinics in the United States can be directly attributed to the presence of TRAP laws, since TRAP laws began to be implemented in the mid-2000s—right before the number of abortion facilities began to drop (Quast et al., 2017). Given that TRAP laws are effective at reducing the number of abortion providers, the debate shifts to whether or not reducing the number of abortion providers effectively lowers the abortion rate. Using Texas as a case study, Quast et al. (2017) examined this claim. After TRAP laws were implemented in Texas, the number of abortion providers fell from 41 to 22. Since Texas has especially stringent TRAP laws, this dramatic reduction fits with national trends, reaffirming that TRAP laws are effective at closing abortion clinics. Shifting their focus to the abortion rate, Quast et al. (2017) examined all 254 counties of Texas and obtained countylevel abortion counts before and after TRAP laws were enacted. Controlling for the availability of abortion services in neighboring states and on the other side of the 27 Mexican border crossings in Texas, Quast et al. (2017) found that a 100-mile increase in distance to the nearest abortion facility was correlated with a 10% decrease in the overall abortion rate. This data strongly suggests that limiting accessibility to abortion services is effective at reducing the abortion rate. Another method often advanced by conservative policymakers is prohibiting Medicaid funds from paying for abortions. Grossman (2004) found that states that used this method saw a decrease in the abortion rate of 29.66 abortions per 1,000 women. Furthermore, one-fourth of women who would have acquired a Medicaidfunded abortion if it were available opt instead to give birth when Medicaid funding

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is prohibited from going towards abortion (Henshaw, Joyce, Dennis, Finer, & Blanchard, 2009). Examining how Medicaid’s prohibitions impacted minors, New (2007) found that states with Medicaid funding restrictions for abortion reduced the abortion rate for those between the ages of 13 and 17 by 2.34 abortions per 1,000 women. Restricting Medicaid funding for abortions is able to reduce the abortion rate because when states impose restrictions on Medicaid funds going to abortion clinics they, in effect, eliminate a large portion of a clinic’s income (New, 2007). State legislatures are able to reduce accessibility to abortion services by increasing the real cost of an abortion. After controlling for intervening variables, Medoff (2007) found that 20% of the reported reduction in the abortion rate between 1982-2000 was due solely to the increase in the real price of an abortion. Medoff (2007) also found that state legislatures can increase the financial cost of an abortion on an individual woman by requiring that she take time off work, travel further for an abortion appointment, and schedule multiple preoperative appointments. Additionally, state policies can increase the cost of abortion services by placing a bigger financial and regulatory burden on the abortion provider. Medoff (2007) noted that requiring the abortion provider to hire more medical personnel, allocate longer physician consultation times, produce detailed reports and records, and print and distribute medical information are all effective at increasing the financial burden on abortion providers. Since these policies increase the indirect costs incurred by a patient seeking an abortion and the direct price of an abortion, they can dramatically increase the real cost of acquiring an abortion and, by extension, reduce the abortion rate. Recognizing the obvious objection that even with an increase in the real cost of abortion, abortion procedures are still cheaper than the cost of raising a child, Medoff (2007) argued that the reason abortion costs impact the abortion rate is that they encourage women to increase their usage of non-abortive contraception. Medoff (2007) also contended that, since people are driven by economic theory, they will seek out the cheapest option. In this case, that option is contraception. So, even though higher costs may not entirely prohibit women from acquiring abortions, they effectively encourage the use of non-abortive contraceptives. In recent years, state statutes requiring parental involvement in a minor’s decision to have an abortion have been criticized. Given this policy’s controversial nature, its effectiveness must be evaluated. Currently, 37 states require parental involvement in a minor’s decision to have an abortion (“Parental Involvement,” 2018). However, several studies contest the idea that this decreases the abortion rate. A meta-analysis of 29 different studies found that parental involvement laws are correlated with teens traveling outside of their home states to acquire an abortion (Dennis, Henshaw, Joyce, Finer, & Blanchard, 2009). Additionally, even when controlling for minors leaving the state, one study in Mississippi and Massachusetts

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found that parental involvement laws do not impact the abortion rate in the states in which they were passed (Dennis et al., 2009). Even though these case studies show that parental involvement laws may be ineffective, a conflicting case study in Texas found that parental involvement laws have a significant effect on the abortion rate if minors are required to travel a long distance to acquire abortions (Dennis et al., 2009). This conclusion aligns with Quast et al. (2007), who found that increasing the distance to acquire abortion procedures by at least 100 miles lowers the abortion rate by 10%. Synthesizing the conflicting data from Quast et al. (2007) and Dennis et al. (2009), it seems that parental involvement laws are ineffective unless they indirectly force minors to travel large distances to acquire an abortion. Even though parental involvement laws have not yielded much quantitative impact, if enough states adopt them, they may yield tangible benefits by increasing the distance that minors have to travel to acquire abortion services, thus, lowering the abortion rate.

Reducing Personal Demand for Abortion

Policies that reduce personal demand for abortion, while not explicitly banning particular choices, may alter personal opinions and encourage individuals considering an abortion to choose life. Much political debate about women’s healthcare funding has made the news recently (Gold & Gorman, 2017). While the issue of women’s healthcare funding is sometimes polarizing, studies suggest that it should be an area for pro-life and pro-choice leaders to compromise. Using Louisville and Jefferson County’s Teenage Parent Program (TAPP) as a case study, Stassen (2009) found that providing teenagers facing crisis pregnancies with OB-GYN medical care, consistent schooling, nursery care, instruction on how to care for babies, and counseling on how to economically prepare for raising a child leads to 99% of pregnant teens above the age of 12 to choose life. Offering more than just pro-life benefits, Stassen (2009) found that mothers in the TAPP program were much less likely to develop drug addiction, commit suicide, and get pregnant unintentionally for a second time. In contrast, Louisville teenagers under the age of 15 facing pregnancies without this critical support chose to have abortions 75% of the time, and teens between the ages of 15 and 19 chose to have abortions 39.1% of the time (Stassen, 2009). Going beyond his case study on the TAPP program, Stassen (2009) also analyzed national women’s healthcare coverage and its effects on the abortion rate and the infant mortality rate. Stassen (2009) found that even though the national abortion rate steadily decreased from the mid-1990s through 2000, the abortion rates in 16 states stalled at 15 abortions per 1,000 women between 2000 and 2005. Furthermore, even though the infant mortality rate steadily decreased for six

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decades prior to 2002, it actually increased in 2002 for the first time in documented American history (Stassen, 2009). Stassen (2009) attributed these two trends to the government’s reduction of funding for programs that supported women and children during the early 2000s. In order to reduce the abortion rate through compromise, Stassen (2009) recommended supporting programs like TAPP, SCHIP (health insurance for children), and child care assistance. Stassen’s data has been cited heavily by pro-life Democrats and moderates since he started researching abortion rates in 2004. The 2009 study that this study cites is based on his 2004 data. From the beginning of his research, Stassen has received heavy criticism from pro-life groups like the National Right to Life Commission and the Heritage Foundation (Johnston, 2005). Johnston (2005) argued that Stassen’s data was skewed since it only drew from 16 states, misrepresenting the national trend of the abortion rate which was steadily decreasing during the time period that Stassen analyzes. Furthermore, Grossman (2004) argued that Stassen’s reasoning was flawed since he failed to account for intervening variables like pro-life TRAP laws that were enacted by state-legislatures during the time period of his study. Even though Stassen’s (2009) study might be flawed in its analysis of national policy, his case study of the Louisville TAPP program remains defensible. His logic that increased support for pregnant women decreases the abortion rate stands to reason. Many left-leaning groups argue that increased contraceptive availability and use is the reason that the abortion rate has dropped. Dreweke (2014) argued that since the 13% drop in the abortion rate between 2008 and 2011 coincided with a 9% drop in the birthrate, restrictions on abortions are not what lowered the abortion rate. He contended that if restrictions on abortion clinics are what caused women facing unplanned pregnancies to give birth rather than obtain an abortion, the statistics should show births replacing abortions—resulting in an increase in the birth rate (Dreweke, 2014). This did not happen, so Dreweke (2014) contended that another variable is responsible for lowering the abortion rate. Between 2007 and 2009, Dreweke (2014) noted that the number of women under the age of 30 who were at risk of unintended pregnancy but not using contraception decreased by one-fifth. Synthesizing the birth rate and abortion rate data between 2008 and 2011 with contraceptive trends between 2007 and 2009, Dreweke (2014) argued that since contraceptive use is generally increasing at the same time that the birth rate is decreasing, contraceptive use is the variable primarily responsible for the decreasing abortion rate. The reason that contraceptive use is tied to the abortion rate is that contraceptives are shown to reduce the unintended pregnancy rate. In 2014, 68% of women used contraception consistently throughout the year, and they only accounted for 5% of unintended pregnancies (Dreweke, 2014). Given that 40% of unintended pregnancies end in abortion, decreasing the unintended pregnancy rate through increased contraception use can effectively reduce the abortion rate

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(Arons, 2010). Another demand-oriented approach to reducing the abortion rate is establishing sound economic policy. Examining the economics of abortion, Medoff (2007) argued that since women who are economically better off have more expendable income, they are more likely to carry their child to term. The findings of Dehlendorf et al. (2013) support this conclusion, as they noted that the abortion rate is much higher for low-income women. Furthermore, New (2007) substantiated this claim, recognizing that a strong national economy often correlates with a reduction of the abortion rate among adult mothers. Given these economic observations, Medoff (2007) argued that states can reduce the abortion rate by implementing sound economic policies that reduce unemployment and increase wages. Another policy designed to decrease the demand for abortion is for government policy to encourage adoption. Fifteen years after Roe v. Wade was decided in 1973, the percent of pregnant American women who chose adoption decreased from 19.2% to 3.2% (Arons, 2010). This data suggests that abortion replaced adoption as an acceptable way to deal with the consequences of an unintended pregnancy. Beyond noting this reduction, there is a dearth of literature available about adoption impacting the abortion rate. Even with this lack of data, it stands to reason that if mothers are encouraged to consider adoption as an alternative to abortion, the abortion rate will decrease.

Conclusion This study found that policies reducing the number of abortion facilities, prohibiting Medicaid funding for abortions, increasing the real cost of abortion procedures, requiring parental involvement in abortion decisions, expanding the availability of women’s healthcare, making contraception easily accessible, formulating sound economic policy, and encouraging adoption are all effective ways to reduce the abortion rate in the United States. Given the effectiveness of these policies, the hypotheses of this paper are supported. Due to the vast differences between some of the policies examined, this paper divided them into two categories: policies that reduce abortion accessibility and policies that reduce individual demand for abortion. In an ideal setting, this research suggests implementing all of the above policies so that abortion accessibility and demand both decrease. Although this policy combination would be the most desirable option for pro-life leaders (in the absence of overturning Roe v. Wade), it is politically unlikely for all of these policies to be implemented—at least not all at once. Since the policies in the second category involve less government regulation and more choice, they are a good starting ground for compromise. While the policies in

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the first category are more controversial, they are also more effective at reducing the abortion rate. Understanding the difference between the two categories presented, pro-life legislators and leaders can begin to formulate effective strategies to reduce the abortion rate. In more liberal environments, pro-life legislators ought to push hard for policies that reduce abortion demand while initially remaining silent on policies that reduce abortion accessibility. After demand-oriented policies are successfully implemented in liberal environments, then pro-life legislators can begin to push for stricter measures that limit abortion accessibility. This approach is effective because reducing abortion demand leaves many pro-choice arguments weakened and less justifiable. Therefore, this method of gradual change is more likely to succeed. In conservative and moderate environments, legislators will likely be able to push to reduce abortion accessibility. Even though such policies are more controversial, they are worth implementing as soon as possible if lawmakers are serious about decreasing the abortion rate. However, after these policies are implemented, legislators should still consider policies that reduce abortion demand in order to appease their constituents. Moreover, by implementing demand-oriented policies, pro-life legislators can weaken pro-choice arguments about how decreasing abortion access will just lead to unsafe or illegal abortions. This, in the long-run, may reduce the likelihood that their strict abortion regulations are overturned in the future. Since this paper encourages liberal and conservative policies, it will inevitably challenge people on both ends of the political spectrum. However this approach for reducing the abortion rate is effective since it provides at least a measure of common ground for pro-life and pro-choice leaders to meet upon. Even though compromise may be frustrating, it has the tangible effect of saving lives. And for anyone who cares about the pro-life cause, that is certainly a worthwhile outcome.

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Reference List Arons, J. (2010). The adoption option: Adoption won’t reduce abortion but it will expand women’s choices. Center for American Progress. Retrieved from https://cdn.americanprogress.org/wp-content/uploads/issues/2010/10/pdf/ adoption_report.pdf Blank, R. M., George, C. C., & London, R. A. (1994). State abortion rates: the impact of policies, providers, politics, demographics, and economic environment (Working Paper No. 4853). Cambridge, MA: National Bureau of Economic Research. Retrieved from http://www.nber.org/papers/w4853. pdf Dehlendorf, C., Harris, L. H., & Weitz, T. A. (2013). Disparities in Abortion Rates: A public health approach. American Journal of Public Health, 103(10), 1772-1779. Retrieved from https://www.ncbi.nlm.nih.gov/pmc/articles/ PMC3780732/ Dennis, A., Henshaw, S. K., Joyce, T. J., Finer, L. B., & Blanchard, K. (2009). The impacts of laws requiring parental involvement for abortion: A literature review. Guttmacher Institute. Retrieved from https://www.guttmacher.org/ sites/default/files/report_pdf/parentalinvolvementlaws.pdf Dreweke, J. (2014). U.S. abortion rate continues to decline while debate over means to the end escalates. Guttmacher Policy Review, 17(2), 2-7. Retrieved from https://www.guttmacher.org/gpr/2014/06/us-abortion-rate-continuesdecline-while-debate-over-means-end-escalates Gold, J., & Gorman, A. (2017, August 16). Often missing from the current health care debate: Women’s voices. NPR. Retrieved from https://www.npr.org/ sections/health-shots/2017/08/16/543723927/often-missing-from-thecurrent-health-care-debate-womens-voices Grossman, A. (2004). Pro-life policy: Does it make a difference? Heritage Foundation. Retrieved from https://www.heritage.org/life/report/pro-lifepolicy-does-it-make-difference Henshaw, S. K., Joyce, T. J., Dennis, A., Finer, L. B., & Blanchard, K. (2009). Restrictions on Medicaid funding for abortions: A literature review. Guttmacher Institute. Retrieved from https://www.guttmacher.org/sites/ default/files/report_pdf/medicaidlitreview.pdf

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Johnston, W. R. (2005). Analysis of a claimed increase in post-2000 U. S. abortions. Retrieved from http://www.johnstonsarchive.net/policy/abortion/ rptdabinc.html McCammon, S. (2017, January 17). U.S. abortion rate falls to lowest level since Roe v. Wade. WHQR. Retrieved from http://www.whqr.org/post/usabortion-rate-falls-lowest-level-Roe-v-wade#stream/0 Medoff, M. H. (2007). The response of abortion demand to changes in abortion costs. Social Indicators Research, 87(2), 329-346. Retrieved from https://search.proquest.com/pqrl/ docview/197652037/508FA56801A64244PQ/3?accountid=13113 National Academies of Sciences, Engineering, and Medicine. (2018). Committee on reproductive health services: The safety and quality of abortion care in the United States. Retrieved from https://www.nap.edu/read/24950/chapter/1#iii New, M. (2007). Analyzing the effect of state legislation on the incidence of abortion among minors. Heritage Foundation. Retrieved from https:// www.heritage.org/marriage-and-family/report/analyzing-the-effect-statelegislation-the-incidence-abortion-among Packham, A. (2017). Family planning funding cuts and teen childbearing. Journal of Health Economics. Retrieved from https://www.academia.edu/19435560/ Family_Planning_Funding_Cuts_and_Teen_Childbearing Parental involvement in minor’s abortions. (2018). Guttmacher Institute. Retrieved from https://www.guttmacher.org/state-policy/explore/parentalinvolvement-minors-abortions/ Quast, T., Gonzalez, F., & Ziemba, R. (2017). Abortion facility closings and abortion rates in Texas. INQUIRY, 54, 1-7. Retrieved from https://search.proquest.com/pqrl/ docview/1980707288/2C520E954004471BPQ/5?accountid=13113 Sedgh, G., Bearak, B., Singh, S., Bankole, A., Popinchalk, A., Ganatra, B., . . . Alkema, L. (2016). Abortion incidence between 1990 and 2014: Global, regional, and subregional levels and trends. The Lancet, 388(10041), 258-267. Retrieved from http://www.thelancet.com/journals/lancet/article/PIIS01406736(16)30380-4/abstract

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Stassen, G. (2009). What actually works? The right supports can reduce abortion rates. Sojourners, 38(6), 18-20. Stranger-Hall, K. F., & Hall, D. W. (2011). Abstinence-only education and teen pregnancy rates: Why we need comprehensive sex education in the U.S. PLoS One, 6(10). Retrieved from https://www.ncbi.nlm.nih.gov/pmc/ articles/PMC3194801/

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SCHOOL CHOICE: OPTIONS IN AMERICAN EDUCATION

Ian Frith Abstract Education policy has been the subject of intense scrutiny over the past several decades. This study looks at how varying ideas for education policy came about, in particular policies related to school choice. The study then examines school choice policies in light of the process model of policy formation and compares it with Kingdon’s model to examine which model more accurately explains the development of education policy. This study also considers the merits of school choice legislation, finding that school choice is ultimately advantageous because it would effect much needed change in the public school system. ___________________________________

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Introduction Since the beginning of the public school system in the 19th century, political actors and policymakers have debated the best method to educate the majority of Americans in a comprehensive, standardized way. It is no less contentious today, as evidenced by the recent appointment of Betsy DeVos as Secretary of Education, which became one of the most controversial presidential appointments in recent memory. Additionally, many people, both inside and outside the education system, have been calling for significant reforms for decades. Education policy is also an interesting field for political scientists because, while certain functions of education policy are handled from the top down, many functions of school administration are handled at the local level by various school boards. As a result, applying policy models to education policy is very difficult. For example, elite theory (a model of policy analysis that views policy as the wishes of a few influential actors) and rational theory (a model that views policymaking as a rational calculus to maximize net social benefit) are particularly difficult to apply to education policy because of its fragmented nature. A better method, albeit a more generic one, is the group model, which understands public policy as a struggle and a cooperation between competing groups to establish a compromise. One of the more controversial education reforms is the movement for school choice. There are many families who live in districts with underperforming schools and are forced to send their children there, even if there may be a better school just a few miles away. This leaves families that cannot homeschool or afford private education feeling trapped in a broken system that fails to equip students for college and their future careers. Fair and effective allocation of federal funds to schools is another disaster of public education policy. By creating the merit-based test score system, policymakers have ensured that teachers only teach students to perform on a standardized test, thus neglecting the more philosophical underpinnings of education. This hinders schools from promoting a holistic approach to education. The variation in funding for schools based on test performance has resulted in increased inequalities in school districts, which has led to unrest among citizens who feel forced into a failing school system. Alternatives such as charter and magnet schools seem appealing, but they threaten to seriously upset the current system of public education. This study seeks to answer the question of whether or not school choice is a good idea and examines the costs and benefits of specific policies that would increase opportunities for school choice, such as educational vouchers and decentralized school districts.

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Literature Review In order to fully understand school choice and education policy as a whole, it is necessary to examine the underlying philosophy behind education. Historically, there have been two philosophies of education, a traditional philosophy and a progressive philosophy. John Dewey (1938/1997) attempted to analyze both of these philosophies in his book Experience and Education. He argued that both philosophies ultimately come up short, because the traditional philosophy relied too heavily upon cultural heritage for its content and the progressive philosophy is based on naturally transient, current problems, which do not give it a stable foundation (Dewey, 1938/1997). This ties into school choice because, under the traditional philosophy and standards of learning, there is not be much change in organizational structure from one school to the next. However in a progressive model, where everything is modeled to address a specific problem, structures are sconstantly changing and some schools may not be able to adapt as quickly, thus creating a lower quality education. Another component of educational policy is funding. Grants for education at all levels have gone through numerous iterations, and as states and localities have shifted to being increasingly dependent on the federal government, they have adapted their school models in order to appear more attractive to grant offers. The Nixon administration played a critical role in laying the foundation of modern education funding with Basic Educational Opportunity Grants and Emergency School Assistance Acts in the 1970s (Cross, 2014). Some schools have adapted well to these grants and are performing quite well while others languish behind. Differences in school district performance have created a myriad of other disagreements and problems, as well as proposed solutions. Lisa Snell (2006) argued that decentralizing school districts actually causes public education to become more like free markets by incentivizing schools to differentiate themselves from each other to attract more students, thereby increasing their budget. School choice is also far more than simply decentralized school districts. True school choice looks at other options such as homeschooling, charter schools, and private schools. True school choice, however, does not simply provide all of these options to parents, but also makes them accessible through other programs such as school vouchers or laws that protect homeschooling. All of these arguments and viewpoints are things which policymakers must consider as policy floats around in what John Kingdon (2011) called the “primeval soup,” or the collection of interests and policy ideas that exist before a particular course of action is chosen. This study will flesh out these elements and fit them into a group theory model.

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Methods and Models Education policy is usually best described by the group theory model, a theory of policy analysis that says that “public policy at any given time is the equilibrium reached” in the struggle between interest groups (Dye, 2013, p. 17). This is because of the fragmented nature of education policy. Not only are there several different levels of government involved in the management of education, but there are also multiple interest groups and voting blocs that have a vested stake in education policy (Dye, 2013). These groups include parents, professional educators, teachers’ unions, taxpayers that fund the school system, racial and religious groups, and school boards. These groups all have substantially different viewpoints, both on whether or not school choice is a good idea and on how to best implement school choice. This study will examine three specific policy proposals or ideas that have been offered as a means of facilitating more school choice: educational vouchers, charter schools, and decentralized school districts. Other issues involved in education policy, such as school funding and educational models will be touched on briefly insofar as they pertain to school choice. This study will also address primary and secondary education, as this is the area in which school choice is most frequently discussed.

Research Educational vouchers are a relatively recent addition to the American public school system. However, the idea of school vouchers has been around for quite some time. Economist Milton Friedman discussed a notion similar to vouchers in 1962 when he published his book Capitalism and Freedom. Friedman (1962) suggested that families should be given a base amount of money in the form of a federal grant that they can use to pay for their child’s education in whatever way they see fit. Friedman (1962) believed that this would develop an educational market that would continually improve due to competition. This idea would eventually turn into a policy proposal for a federally funded voucher experiment in the 1970s that was presented by Friedman and his colleagues. Modern day voucher programs, as seen in many states, are still based off of the framework from Friedman’s experimental design. The federal voucher program proposed in the 70s was never implemented, due in part to several other battles over educational policy, namely a dispute regarding Title IX (Cross, 2014). But once the idea of school choice had been formulated, it was an added ingredient to the policy “primeval soup” and would eventually resurface in the policy stream (Kingdon, 2011). Today school vouchers are found in 16 states and can be funded through a variety of both private and public means (Metcalf & Legan, 2002). The most controversial vouchers are ones seen in the cities of Milwaukee and Cleveland, as well as the state of Florida, where public resources are used to fund

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vouchers that can be put to use at any school, including private or religious schools (Metcalf & Legan, 2002). In theory, the voucher program is a relatively simple policy—families are given a portion of school tuition which can be used at any qualifying school. Politicians only have to decide three issues: which families qualify, which schools qualify, and how the funds are disseminated (Metcalf & Legan, 2002). In Milwaukee and Cleveland, families who exhibit the greatest need for financial assistance have priority in receiving school vouchers. Similarly, in Florida, families who currently reside in failing school districts receive priority so that they have a greater ability to escape bad education (Metcalf & Legan, 2002). Schools are made eligible for voucher programs by agreeing to a set of requirements and restrictions. The dissemination of funds varies widely, going anywhere from $2,000 to $5,000 in the three examples cited by Metcalf and Legan (2002). Secretary DeVos has come out in support of a federal voucher program which would be similar to state vouchers already in existence. However, vouchers have historically been met with fierce opposition, and, in the current political climate, rhetoric regarding vouchers is even more heated. While supporters of vouchers argue that vouchers would improve equality between low-income and middleincome Americans, opponents argue that vouchers only benefit parents who are already involved in their child’s education. Challengers argue that school choice will result in a stratification of schools that are popular and attract better students and inferior schools that are left with students whose parents are uninterested in their child’s education (Dye, 2013). Opponents also have argued that vouchers would prevent a common set of core civic values from being established among children because parents may enroll their students in private education, which could be more consistent with the parents own viewpoints (Metcalf & Legan, 2002). This particular controversy over vouchers is rooted in a larger discussion of educational philosophy. A progressive model of education seeks to establish a core set of socially agreed upon values such as tolerance, acceptance, and diversity. However, as social values change, the education system also changes to adapt to new values (Dewey, 1938/1997). A traditional model of education also seeks to develop virtue, but it does so by giving students the tools to discern which values are good and which values are harmful. This conflict between subscribers of progressive education and traditional education has extended into almost every policy arena. By looking at this conflict through the group model, it appears that the progressive educators have had more success implementing their vision through specific policy proposals. However, there is also increasing dissatisfaction with the results of the progressive model of education. Even some of its strongest supporters and engineers admit that the system has failed in certain

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areas (Dewey, 1938/1997). This could lead to traditional educators regaining traction. Support for the public school system is another area of conflict related to school vouchers. School vouchers have been opposed heavily by professional school administrators and state educational agencies (Dye, 2013). Teachers’ unions and associations have lobbied fiercely against school vouchers, particularly the models seen in Cleveland and Florida, because they believe that having increased public and private school options undermines the public school system as a whole (Metcalf & Legan, 2002). Opponents used rhetoric that made vouchers sound like primarily a benefit for wealthy families and warned that vouchers would create a “two tiered school system” (Dye, 2013). Until recently, it seemed like interest groups had been able to effectively block serious measures to implement a voucher program on the federal level. This lines up with Kingdon’s (2011) theory that interest groups are not able to set the policymaking agenda so much as stall or block policy initiatives already set on the agenda. However, school vouchers may have a better chance today, as some of the arguments made against them are being disproven by research. Metcalf and Legan (2002) found that the preliminary research on voucher programs in states and localities demonstrated that vouchers have primarily benefited the low income families they target. Metcalf and Legan (2002) also found that school voucher programs have led to increased parent satisfaction with their children’s education, and there is some evidence that voucher programs prompt positive change in the operation and administration of public schools. Additionally, education reform is always seen as a problem that needs continual adjustment, so it would not be hard to find a problem to attach a school voucher solution to (Kingdon, 2011). Ultimately, the policy of school vouchers would create a maximum amount of school choice for families, but they are also some of the most controversial policy measures. Additionally, vouchers would be difficult to implement on the federal level due to so many competing groups. Charter schools are seen as a more moderate approach to implementing school choice policies. A charter school is formed when a community education group signs an agreement or “charter” with their school district to establish their own school within the public school district. They are given more leeway and flexibility when it comes to the school district’s regulations, and they promise to show student achievement in specialized areas in exchange (Dye, 2013). They are still classified as a form of public education, albeit a non-traditional one. The idea of charter school programs has only come about in the last 25 years. Thus, research on their performance is also somewhat limited (Bohte, 2004). However, charter schools are viewed in a generally more favorable and less controversial light among voters, as nearly 40 states have at least one charter school in them (Bohte, 2004). It is important to remember that the goal of charter schools and increasing school choice is ultimately to improve all forms of education and schools. Thus, it is

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important to look at the impact of charter schools not just on the students enrolled in the charter schools but also the impact on traditional schools that are in the same area as the charter school. Former Secretary of Education Margaret Spellings had a remarkably positive view of charter schools in her address at a 2007 conference. She pointed out that charter schools were developed in urban and inner city areas and were able to address the needs of low-income and minority students (Spellings, 2007). She pointed to success in academic growth in Hispanic communities and the increased enrollment by students who ordinarily would have continued their education in charter schools (Spellings, 2007). There is also a good measure of bipartisan support for charter schools. Several very liberal, Democratic leaders in cities such as Indianapolis and St. Paul have advocated for creating more charter schools, and Republicans have worked with Democrats to give charter school principals more autonomy to manage their schools (Spellings, 2007). Although the political climate has changed over the past decade, charter schools were receiving an overwhelming amount of support from many of the different groups involved in education policy, including parents, teachers, education interest groups, and leaders on the local, state, and federal level. Since the groups have a large degree of consensus among them, charter schools have been established in more states and been given more freedom even since Spellings’ remarks in 2007 (Bohte, 2014). The policy is effectively solving a known problem in the education of low-income and minority families and has also enjoyed substantial bipartisan political support. Bohte’s (2014) study primarily looked at the second half of the question regarding charter schools—namely, how they impact the quality of education in the traditional public schools that surround them. Public schools respond to charter schools primarily because of the money loss that occurs if students leave traditional schools for charter schools. Traditional schools are given funding based on the number of students that attend, so charter schools provide the needed incentive for traditional schools to try and increase their attractiveness or be effectively punished by cuts in funding (Bohte, 2014). In some ways, this is merely a market technique in practice and can be viewed as healthy. Some case studies have shown, however, that charter schools have caused too much of a flight from traditional schools, which has led to overall decline of education in some areas (Bohte, 2014). Bohte’s (2014) study examines school districts in Texas where there are a substantial number of charter schools along with traditional public schools. He compared the state test scores in these districts over a period of several years, during which several new charter schools were founded. He discovered that while test scores in traditional schools initially went down in a few districts, the overall trend was that traditional public schools improved on their state test scores over the course of several years after the charter school had been introduced into the

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district (Bohte, 2014). Specifically, Bohte found that a 1% increase in countywide enrollment in charter schools led to a 0.1% increase in district pass rates for the statewide tests, known as the TASS exams (Bohte, 2014). This research is remarkably encouraging and suggests that charter schools are beneficial not only by providing parents and students with more options but also by providing competition, which generally increases the academic performance of traditional public schools around them (Bohte, 2014). Coupling these results with the already positive views of charter schools among voters and politicians indicates that charter schools are a viable and effective policy for improving education policy in the United States. The final specific policy that will be examined is decentralizing school districts. School districts go back to colonial times and have endured as a staple of American law which intend to allow for community run education and leadership. School districts are also a uniquely American idea not found in the same format in any other countries (Shoked, 2017). However, many believe that the modern school district system is no longer able to accomplish its original goals and now might be doing more harm than good (Shoked, 2017). This has led for some to call for the decentralization of school districts. Decentralization would eliminate restrictions on where students can enroll in school based on their geographic address, and it would allow them to enroll in schools based on the unique qualities and programs that interest them (Snell, 2006). Snell (2006) offered a specific case study and example of decentralized school districts in the city of San Francisco and explained how decentralization was able to help struggling families find the best option for their young students. Shoked (2017) argued that school districts were originally created in the interest of promoting local governance and that a school district would provide the opportunity for local citizens to oversee their children’s education. A school district also would be best suited to provide the services that the individuals in the district needed and provide the community with a common building, the schoolhouse itself, that could be used for various functions (Shoked, 2017). However, Shoked (2017) argued that several factors have rendered the modern school district incapable of delivering on its normative promises. These factors include twentieth century court decisions, political patterns, economic trends, and demographic shifts. Shoked (2017) gave two examples of school districts that were performing significantly below average in reading and math scores. One district was in Newark, New Jersey, while the other was in Rockland County, New York. The Newark school system was given millions of dollars by Facebook founder Mark Zuckerberg and others, while the Rockland County school district was severely cash starved due to the local Jewish community’s decision to divert resources to private schools instead (Shoked, 2017). Despite their differences, both school districts continue to perform at a subpar rate. Shoked (2017) argued that the subpar performance is because the school districts

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and school boards are controlled by groups that do not actually have a vested interest in the schools. This is because the schools are not controlled by the city of Newark or the villages in Rockland County, but rather by the school district, which is a separate governmental entity (Shoked, 2017). In the case of Rockland County, the school board consists mostly of Jewish community members, most of whom opt to send their children to private schools. As a result, they have adopted policies that divert funds away to private schools whenever possible and have created a deliberately cash-starved public school system (Shoked, 2017). In the case of Newark, the school district also spent the generous funding it was given in ways that benefited their own interests more than the constituents of the schools themselves. This is what Shoked (2017) described as the undermining of the school district by the modern interest group dynamic. This further gives credence to Dye’s description of education policy by the group theory model. Shoked (2017) argued that the modern school district has strayed so far afield from its intended purposes that it is actually subverting the goals it originally was supposed to promote. As a result, Shoked (2017) argued for the complete abandonment and abolishment of the school district. He understood that this was a radical proposal, although one he claimed was not unrealistic or unwarranted. However, such an entrenched part of American governance is extremely unlikely to be removed any time soon. Such a proposal would have to be accompanied by a nationwide failing of school districts to serve as a focusing event, and, even then, it would still be subject to an overwhelming degree of political pressure and opposition. A more moderate position may be the decentralization of school districts as outlined by Snell (2006), who argued that decentralizing school districts would still solve the problem that Shoked identified. Currently, students are assigned schools based on their local address, but their local government may not have any control of how their schools are actually run, thanks to the school district system. Snell’s (2006) proposal would give families more leverage against the school district system by allowing families to choose the school and school district in which they enroll their children. This creates an educational, market-like environment, which allows competition and causes the money to follow the children. Snell (2006) looked at the San Francisco public school system as a case study where decentralization has been implemented and found that the number of schools that parents have deemed acceptable for their children actually increased. In the San Francisco system, funding for schools is determined by enrollment, with varying amounts of money given for different student characteristics (Snell, 2006). The enrollment based system incentivizes schools to develop unique programs in order to differentiate themselves and attract more students, including those unique students who bring more funding to the school (Snell, 2006). This

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competition also causes schools to increase their marketing to students, creating stronger public relations between schools and families (Snell, 2006). Snell admitted the decentralized program could still be refined and provided alternative plans of decentralization such as open enrollment or differing pay structures for school teachers and administrators (Snell, 2006). The San Francisco system has generated improved results, however, including a considerable 37% increase in reading proficiency among 2nd graders in just two years at a particular elementary school (Snell, 2006). Some parents are even opting to take their kids out of private schools, generally considered to be a higher quality education, and enroll them in San Francisco public schools because they are attracted to their programs (Snell, 2006). Other studies have found similar results. William Ouchi (2003) did an extensive study at UCLA, comparing heavily centralized school districts and very decentralized school districts. He found that decentralized districts performed substantially better both at an academic performance level and an administrative level. Therefore, the option of decentralizing school districts may soon gain enough momentum in the political stream to be a legitimate policy alternative. As the policy is developed and experimented on within local areas, the policy stream will also probably pick up the idea, making the chances of implementation even greater.

Conclusion This paper has demonstrated that there are several viable options to education reform. Additionally, it has explained the nature of education policy in light of a group model theory that seems to best describe the nature of decision-making in education policy. The varying interest groups in education are all significant and hold substantial power, which means that it is necessary for policymakers in the education field to gain the support of multiple groups in order to have any realistic chance of pushing their policy proposals through. As far as options for school choice are concerned, charter schools and decentralized districts seem to have more political support and more proven results than school voucher programs. However, school voucher programs have been demonstrated to offer the most school choice out of the three options. Political will may continue to develop for school voucher programs, particularly if Secretary DeVos is successful in her campaign for them. However, the policies of decentralization and charter schools should continue to be pursued as well, as they may open the door for more aggressive school choice options such as vouchers. Regardless of what policies ultimately come to the forefront, increasing school choice has been proven to improve and solve numerous problems in the current education system, both at the academic performance and administrative levels. While the education problems America faces may not yet constitute a focusing event by

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Kingdon’s standards, they are substantial enough to get the problem stream flowing. Additionally, there is evidence that the political stream is also getting involved, and consensus is beginning to build among the various groups that have a stake in education policy. According to Dye’s group theory, this is a sign that education reform is on the horizon. As policy alternatives continue to be developed in state and local governments, Kingdon’s policy stream will also become active due to state and local governments serving as “policy laboratories” for the federal government. In short, both Kingdon and Dye’s theories point to a policy window being opened for education reform in the next few years, and education policymakers should be ready to take advantage of such an opportunity by further refining options that will increase school choice.

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Reference List Bohte, J. (2004). Examining the impact of charter schools on performance in traditional public schools. Policy Studies Journal, 32(4), 501-520. Retrieved from https://search.proquest.com/docview/210573045?accountid=13113 Cross, C. T. (2014). Political education: Setting the course for state and federal policy. New York, NY: Teachers College Press. Dewey, J. (1997). Education and experience. New York, NY: Simon & Schuster. (Original work published 1938). Dye, T. R. (2017). Understanding public policy (15th ed.). Boston, MA: Pearson Education, Inc. Friedman, M. (1962). Capitalism and freedom. Chicago, IL: University of Chicago Press. Kingdon, J. W. (2011). Agendas, alternatives, and public policies (2nd ed.). Glenview, IL: Pearson Education, Inc. Metcalf, K. K., & Legan, N. A. (2002). Educational vouchers: A primer. The Clearing House, 76(1), 25-29. Retrieved from https://search.proquest.com/ docview/196853163?accountid=13113 Ouchi, W. G. (2003). Making schools work: A revolutionary plan to get your children the education they need. New York, NY: Simon & Schuster. Shoked, N. (2017). An American oddity: The law, history, and toll of the school district. Northwestern University Law Review, 111(4), 945-1024. Retrieved from https://search.proquest.com/docview/1929026266?accountid=13113 Snell, L. (2006). The agony of American education. Reason Foundation. Retrieved from http://reason.com/archives/2006/04/01/the-agony-of-americaneducatio/

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HOW THE GREENBACKS GROW: AN ANALYSIS OF AGRICULTURAL POLICY IN THE UNITED STATES Spencer J. Reeves Abstract This study looks at the recent history of U.S. agricultural subsidies and specifically at the Agriculture Reform, Food, and Jobs Act of 2014 (known as the 2014 farm bill), which reformed the way that the U.S. handled support for farmers by replacing the direct payment plan with a form of crop insurance. This study will seek to understand the Agriculture Act of 2014 by looking at the history of American agriculture subsidies dating back to the Agricultural Adjustment Act of 1933 and at shifts in agricultural policy in the 70 years since. The study will also examine the conflict created in the policy formulation process by budgetary issues raised by cost cuts to the Title I commodity subsidy programs and the Title IV Supplemental Nutrition Assistance Program, also known as “SNAP” or foods stamps. Policy formulation will be analyzed using the “three streams” model proposed by political scientist John Kingdon, the incremental model, and the group equilibrium model. Finally, this study will analyze the Agriculture Risk Coverage and Price Loss Coverage programs created by the 2014 farm bill in light of the original Congressional Budget Office (CBO) projections and later CBO projections. ___________________________________

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Introduction “I wanted to have a positive impact, and that just felt very distant in my other jobs out of college. In farming, on the other hand, you make a difference. Your impact is immediate” (Dewey, 2017, para. 16). These are the words of Liz Whitehurst, a 32-year-old liberal arts graduate who abandoned city-life to become a farmer. She is one of many new farmers looking to escape the hustle and bustle of city life for a more traditional agrarian existence (Dewey, 2017). Apart from farmers like Liz and agricultural policy experts, the way the United States shapes its agricultural policy is unknown to the general public. However, the way agricultural policy and subsidies programs are formulated and function has a bearing on the lives of almost all Americans, whether they are farmers, supplemental nutrition recipients, or everyday consumers. The Agriculture Reform, Food, and Jobs Act of 2013, colloquially known as the “2014 farm bill,” passed by Congress and signed into law in 2014, reformed aspects of the current agricultural subsidy system by eliminating the direct payments program instituted in 1996 and continued in 2008 and replacing it with the Agricultural Risk Coverage (ARC) and Price Loss Coverage (PLC) programs (Bakst, 2015). The new Agricultural Risk Coverage Program and the Price Loss Coverage programs both provide a variety of financial safety nets to farmers in the event that prices fall on a given crop (United States Department of Agriculture 2017). However, the narrative leading to the enactment of the 2014 farm bill is more complicated than simply a shift from one kind of agricultural subsidy program to another. This study will look at the competing factors that led to the enactment of the 2014 farm bill, including the Great Recession, the incremental development of subsidy policy, and the competing interests of various agricultural groups. Finally, this study will examine whether or not the Price Loss Coverage and Agricultural Risk Coverage programs were successful in addressing the problems which led to their enactment.

Literature Review In his study looking at ideology and electoral incentives in the enactment of the 2014 farm bill, Russell (2018) concluded that political ideology of legislators has minimal impact on their stance on the farm bill beyond the observation that more politically extreme legislators are somewhat less likely to support farm bills, particularly those legislators on the far right. The only significant ideological issue that Russell (2018) pointed to as affecting agricultural policy is the budget, referencing the debate that dominated discussion of the 2014 farm bill. Instead of ideology, Russell (2018) found rural constituencies to be the most important factor

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in whether a legislator favored agricultural support policies. As a result of this trend, Russell (2018) predicted a decline in support for agricultural support policies as the U.S. rural population continues to decline. Orden and Zulauf (2015) discussed the issue of the enactment of the Agricultural Act of 2014. They contended that the safety net provisions of the act (PLC & ARC) would not have been enacted had an agreement been reached regarding the Doha Round World Trade Organization negotiating documents. Because the act was passed, an agreement regarding those documents is even more unlikely (Orden & Zulauf, 2015). However, other literature either did not corroborate this claim or mentioned the WTO agreements only in passing. As such, the trade aspect of the 2014 farm bill seems to be minor compared to the need for debt reduction and the conflict over SNAP. A long-time critic of the new commodity programs instituted by the new farm bill, Bakst (2015) reported that an amendment was overwhelmingly passed in the House that would have capped the costs on the Price Loss Coverage (PLC) and Agricultural Risk Coverage (ARC) programs, but it was removed during conference in the Senate. In concurrence with Smith (2016), Bakst (2015) found that actual costs for the programs would far exceed expectations by roughly $4 billion. As a result, Bakst (2015) recommended elimination of the ARC and PLC programs. He argued that they are “unnecessary and costly, and they provide subsidies that effectively eliminate most risk� (Bakst, 2015, para. 12). Bakst seemed to believe that eliminating risk is not a legitimate objective for U.S. agricultural policy makers. The programs, he claimed, lead to an open-ended financial obligation to taxpayers that Congress needs to resolve. He recommended that Congress amend the ARC and PLC programs to include a spending cap akin to the one included in the original House version of the farm bill, which would have capped spending at $17 billion (Bakst, 2015). At the very least, Bakst (2015) concluded, Congress must take steps to ensure that the ARC and PLC do not exceed the cost of the former direct payments program. Smith (2016), of the American Enterprise Institute, reported that the House and Senate agricultural committees claimed extensive savings over the direct payments model with the new PLC and ARC programs. However, research has not corroborated the optimistic claims of the agricultural committees. Smith (2016) found that since the committees were selective with the data when they had the projections done, the actual costs will be several billion dollars higher than the direct payment plans that the system had been intended to replace. Smith (2016) also pointed out that, under the current system, PLC and ARC benefits are not attached to the actual production of the crop in question at present but rather historical production. He suggested that a cynic might look at the issue and conclude that

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the farm lobby had simply been able to get Congress to give them another blanket subsidy. He concluded that “substantial amounts of government funds are being given to a relatively wealthy lobbying group for no obvious reason other than the convenient practice of crony capitalism” (Smith, 2016, pg. 10).

Data and Methods This study will look at two aspects of the 2014 farm bill and will therefore take two separate approaches to data analysis. First, in order to analyze the various political and policy factors that led to the passage of the farm bill in 2014 and contributed to the changes from previous farm bills, this study will look at the general history of U.S. agricultural policy and various secondary accounts of the debates and discussions leading up to the enactment of the bill. In order to analyze the various aspects of the agenda-setting processes and the steps leading up to enactment, this study will utilize three different models of policy analysis. First, this study will employ the lens of political scientist John Kingdon’s “three streams” model of analysis as described in his book Agendas, Alternatives, and Public Policies (2011). The “three streams” model sees policy as the confluence of three streams, problems, policies, and politics. For Kingdon, refrom will only happen when problems are acute, policies are workable, and political culture is receptive. Second, this study will compare the farm bill to the incremental model, which looks at policy as a series of incremental changes from one piece of legislation to the next. And finally, it will analyze the group equilibrium model, which looks at policy through the lens of competing interest groups, striving to reach equilibrium. Second, this study will assess the success of the ARC and PLC programs which replaced the direct payment model laid out in the 2008 farm bill. The primary method used will be a comparison of the original CBO cost estimates used to justify the shift to the ARC and PLC programs in the wake of the Great Recession to postimplementation cost assessments. The program may be assessed to have succeeded if current projected cost is less than estimated by the CBO or at least less than the cost of the direct payments program it replaced. It may be assessed as a failure if costs exceed both CBO estimates and the cost of the direct payments program. The success or failure of the program may be ambiguous if the ARC and PLC programs exceed the cost of the direct payments program but provide other, non-financial benefits that are difficult to assess via cost-benefit analysis.

History of the Farm Bill and Agriculture Subsidies American Agricultural Policy to the Early 2000s

American agricultural policy in its modern iteration dates back to the

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1930s, the “Dust Bowl” of the Great Depression, and the earliest iterations of what today are called “farm bills”—the Agricultural Adjustment Acts of 1933 and 1938 (AAAs). These early programs contained the core of modern U.S. agricultural policy: price control and income support programs (Dimitri, Effland, & Conklin, 2005). The central problem of agricultural policy has changed very little from the Great Depression to the Great Recession: that is, the problem of controlling pricedeflating surpluses to enable farmers to earn a livable income (Bosso, 2017). These problems continued in the wake of World War II with the revitalization of the U.S. economy and developments in agricultural chemicals, which led to the enactment of the Agriculture Act of 1949 under the Truman administration, the first so-called “permanent law” for American agriculture (Bosso, 2017). This law reacted to the resurgence of the economy of the postwar years and remains the legislation to which the U.S. agricultural system would revert if Congress failed to pass a farm bill before the previous bill expired (Dimitri et al., 2005). Since 1973, U.S. farm policy has been largely counter-cyclical (Zulauf & Orden, 2016). As opposed to the direct payments program instituted under the 1996 farm bill, counter-cyclical payment programs respond to changes in price and revenue, with payments dropping as revenue increases and vice versa. See Figure 1 for a history of U.S. farm commodity payments dating back to the 1970s. As visible in Figure 1, commodity outlays fluctuate wildly in response to market conditions from almost no outlays in the late 1970s to almost $24 billion in outlays in the mid-1980s and late-1990s to early 2000s (Zulauf & Orden, 2016). Commodity payments have been historically provided by the Commodity Credit Corporation (CCC) (Zulauf & Orden, 2016).

Figure 1. Graph of change in commodity outlays by program 1978-2014 (Zulauf & Orden, 2016).

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While the focus of this study is primarily on the crop commodity programs that the farm bill has centered on since its inception, it is functionally impossible to discuss any farm bill without discussing nutrition assistance programs. Before their earlier iteration as “food stamps” or their current form as the “Supplemental Nutrition Assistance Program” (SNAP), nutrition programs were part of the rural relief projects of the 1930s and the New Deal (Dimitri et al., 2005). While it came into its own in the 1964 Food Stamp Act, nutrition assistance was rolled into the farm bill in the 1977 Food and Agriculture Act and has been a farm bill staple ever since (Dimitri et al., 2005). The commodity programs that became a focus of debate under the 2014 farm bill came into being under the 1996 Federal Agriculture Improvement and Reform Act (FAIR). FAIR decoupled the pre-existent income support payments from production choices, a system that would become known as the “direct payments” model (Dimitri et al., 2005). Dimitri, Effland, and Conklin (2005), writing before the passage of the 2014 farm bill removing the direct payment program, argued that: The evolution of farm policy from one based on supply controls and high price supports to one based primarily on direct Government payments has undoubtedly reduced the economic inefficiencies of resource misallocation and price distortions associated with farm programs. (p. 9) The objectives of the direct payments program were threefold. First, they were supposed to reorient the agricultural commodity markets to set their prices based on supply and demand. Second, they were supposed to bolster farmers’ finances so that they could adjust to the market based on supply and demand conditions. Third, they were supposed to bring U.S. commodity policy into compliance with the World Trade Organization (Keeney, 2013). Originally, the direct payments program was meant to be a temporary measure (Keeney, 2013). Since the end of the Second World War, U.S. agriculture has seen a progressive shift away from the more localized and traditionally agrarian enterprises in favor of more recognizably industrial agribusinesses (Effland, 2000). Due to this shift, many have questioned how exactly farm aid should be distributed. When Effland looked at the issue in 2000, the general consensus was in favor of continued direct assistance to farmers. However, this sentiment seems to have been shifting even during the wake of the 1996 farm bill. In 2001, a majority of commentators supported the continuation of the countercyclical or the direct payment program models (Effland & Young, 2001). However, a growing minority presented the view to the House Agriculture Committee that the U.S. agricultural community was too complex to be supported by a “one size fits

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all” commodity program and that U.S. farms needed a selection of market-oriented programs from which to choose that would fit their individual needs (Effland & Young, 2001). Even in their embryonic form, these policies, which would eventually come to be part of the programs passed by the 2014 farm bill, advocated for the elimination of the direct payments program and the diversion of those funds into loan programs, safety net provisions, and risk management programs (Effland & Young, 2001). However, in 2002 the idea that direct payments were transitional was abandoned (Keeney, 2013). Farmers continued to receive their standard payment uninterrupted up through the 2008 farm bill. The middling agricultural incomes of the 2002-2008 period made the continued maintenance of the $5 billion subsidy program politically tenable. However, when the markets crashed in 2008 and the agricultural sector profited, the question of whether or not to dispense with the direct payments program became much more open (Keeney, 2013). The 2008 farm bill provided a program which looks much like the ARC and PLC programs that would appear in the 2014 farm bill, called the Average Crop Revenue Election (ACRE) program, which was made optional for farmers (Keeney, 2013). Farmers were given the opportunity to forgo up to 20% of their direct payments in exchange for enrollment in the ACRE program. In exchange, ACRE would provide payments to farmers when farm revenue declined more than 10% from the average of the last five years; a steeper decline resulted in steeper payouts (Keeney, 2013). However, because farmers accurately expected revenues to increase over the next several years due to demand for food and fuel, they largely declined to enroll in the program (Keeney, 2013). This “test run” of the ACRE plan and the growing opposition to the direct payments model framed the debate over commodities moving into the legislative session that produced 2014 farm bill.

History of the 2014 Farm bill Debate on the Farm Bill Debate in Congress over the 2014 farm bill can best be framed in terms of opposing forces: House versus Senate, Republican versus Democrat, and commodity programs versus SNAP (Green, 2013). There was a general consensus amongst policymakers that the direct payments program had to be cut (Cain, 2013). The question was: to what degree? On one side of the debate was the farm lobby, which opposed the cuts to the direct payments program as such and instead wanted to see the SNAP program slashed (Smith, 2013). On the other side of the debate were those supporting continued SNAP spending, like Senate Agriculture Committee Chairman Debbie

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Stabenow (D-MI), who wrote in an op-ed for The Hill in September 2014: House Republican leaders are waging a relentless assault targeting the nation’s hungry. This week, they are bringing a bill to the floor that would cut food assistance by a whopping $40 billion and kick nearly 4 million people off the program in the next year, including children, seniors, veterans and disabled Americans. (Stabenow, 2013, para. 1) Stabenow’s article was emotionally charged, but it framed the debate well. On the other side of the debate was Republican House Agriculture Committee Chairman Frank Lucas (R-OK), who pushed for less cuts to the subsidy program and greater cuts to SNAP. The House and the Senate advanced two different farm bills, one spearheaded by Sen. Stabenow and the other by Rep. Lucas, which had to be reconciled in conference (Tomson & Parti, 2014). The House bill included the first form of the of the Price Loss Coverage program, a new crop insurance program (which had no cap), and a subsidy program for dairy farmers (Smith, 2013). The House bill also had a $40 billion cut to SNAP (Tomson & Parti, 2014). The Senate bill had similar programs, except instead of the PLC program the Senate proposed the Agricultural Risk Coverage program (Smith, 2013). The result was a compromise bill that repealed the direct payments program in an effort to reduce the budget deficit and also included cuts to SNAP, although not as deep as Republicans might have liked. The final cut to the SNAP program was $9 billion, $31 billion less than the House version of the farm bill had originally proposed, and also lacked the attack on state waivers for employment requirements that had been proposed with the house bill (Tomson & Parti, 2014). The ARC and PLC Provisions The 2014 farm bill provides two sets of crop commodity programs for farmers to make use of: Agricultural Risk Coverage (ARC) (a modification of the old ACRE program) and Price Loss Coverage (PLC). There are also two versions of the ARC: ARC-CO (which applies to counties) and ARC-IC (which applies to individuals) (Orden & Zulauf, 2015). Farmers are allowed to choose which of the commodity programs they would like to be enrolled in during the 2014-2018 crop years but are unable to change once they have made their decision (Orden & Zulauf, 2015). The ARC-CO program works by providing payments to farmers on a commodity-bycommodity basis when the county’s crop revenue drops below 86% of the county’s benchmark revenue (5-year Olympic average country yield times 5-year Olympic average national price or times the reference price, whichever is higher in a given

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year) (United States Department of Agriculture, 2018). The ARC-CO payment will be the difference between the above per-acre guarantee and the actual revenue; however, payments are not greater than 10% of benchmark revenue (United States Department of Agriculture, 2018). In the case of the ARC-IC program, payments are issued on all individual crop revenues combined, rather than on a commodity-by-commodity basis, when the combined crop revenues, calculated as the sum of all applicable commodities, falls below 86% of the benchmark, defined as the sum of all applicable commodities at the ARC guarantee price (the 5-year Olympic average of national price or the reference price, whichever is higher) multiplied by the 5-year Olympic average individual yield (United States Department of Agriculture, 2018). Like the ARC-CO plan, payments are capped at 10% of the farm’s benchmark revenue (United States Department of Agriculture, 2018). The PLC program provides payments on a commodity-by-commodity basis when the market prices drop below reference prices. Payments are made based off the difference between the reference price and the national average market price. The payment amount is the aforementioned rate times 85% of the base acres for the commodity times the payment yield (United States Department of Agriculture, 2018).

Model Analysis of the 2014 Farm Bill Kingdon’s “Three Streams” Model of Policy Analysis

In his book Agendas, Alternatives, and Public Policies, political scientist John Kingdon outlines a model for the creation of public policy centering around the process by which three “streams” come together (Kingdon, 2011). The first stream is the “problem” stream, which includes the given issues a policy needs to address, and the important concept of a “focusing event”—an occurrence that brings a problem into the public eye and enables it to be recognized as a problem to be placed on the agenda. The second stream is the “policy” stream, which includes all the possible alternatives that may be considered to solve a given problem (Kingdon, 2011). This stream comes into alignment when the policy community resolves on a course of action. Finally, there exists the “political” stream, which represents the political actors and climate that must be conducive to placing the item on the agenda. Once all of these streams come into alignment, a “policy window” opens, which is a brief opportunity for a piece of legislation to be passed (Kingdon, 2011). The following sections will analyze the 2014 farm bill in terms of problems, policies, and politics.

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Problems The primary problem at hand, at least in relation to the Title I commodity programs and the Title IV nutrition programs, was how to reduce spending with as minimal impact as possible (Smith, 2013). Kingdon discussed the special issue of budgets as a problem and made several points which are particularly applicable to the farm bill. First, Kingdon alleged that there are three different types of budgetrelated programs: 1) programs that attempt to control the rise in costs; 2) programs that are not directly regulatory, but policymakers think will save money; and 3) programs that are low-cost, even if they do not contribute to cost reduction. The 2014 farm bill’s commodity programs are of the first variety because they constitute an effort that will attempt to reduce spending to compensate for economic decline (Keeney, 2013). Kingdon (2011) also raised the point that budgetary problems are generally tied to the broader state of the general economy. This proved to be very much the case with the 2014 farm bill. The Great Recession of 2008 generated a push to cut government expenditures in light of economic decline, and the fact that agriculture had largely escaped the damages of the Recession made their direct subsidies an obvious target (Keeney, 2013). As with most recurring bills, a focusing event is unnecessary in order to put the farm bill on the government agenda. However, as far as the specific crop commodity provision itself, the Great Recession could be understood as one great focusing event that finally crystallized the issue of replacing direct payments. While the ACRE program of the 2008 farm bill served as something of a test, it took the Great Recession to finally push the replacement of direct payments onto the agenda. Related to this issue of agenda setting is the debate over repealing the 1938 and 1949 farm bills, which was a concern of the American Farm Bureau Federation, the largest U.S. farm lobby (Tomson, 2013). Bob Stallman, president of the Farm Bureau, expressed his concern that: Repealing those acts and making the 2013 farm bill commodity title permanent law could make it difficult in the future to generate sufficient political pressure to adjust the commodity safety net provisions should conditions in the production change. (Tomson, 2013, para. 5) Stallman’s concern seems to support the notion that the primary motivator for putting the issue on the agenda is not economic crisis, and is certainly not interest group pressure, but is rather Congress’s need to avoid having agricultural policy revert back to its 1940s iteration.

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Policies The potential policy alternatives seem to be the direct payments program that was already in place, the counter-cyclical payments program that was already in place, and then the market-sensitive programs being proposed like ACRE, ARC, and PLC. Kingdon (2011) addressed the issue of “softening up” in his chapter on the policy stream. Softening up is the process by which the policy community grows comfortable with an idea and begins to accept it as a legitimate alternative that can be considered during the policy legitimation process. The concept of a more market-sensitive, farmer-oriented program in the vein of what became the ARC and PLC had been floating around since the early 2000s, and such programs were discussed by the House Agriculture Committee (Effland & Young, 2001). The agricultural policy community was focusing on the issue of direct payments and their continuation in the 2002 farm bill at the time. However, it was necessary that discussion about alternative programs begin years before they were finally implemented, just as it was necessary for direct payments to be implemented in a provisional form in the 1996 farm bill before they were “permanently” implemented in the 2002 farm bill. The final step in the softening up process was the ACRE program, which served as a test run for the ARC and PLC programs (Keeney, 2013). By the time Congress was ready to take up the issue of replacing direct payments, the agricultural policy community had already been discussing the alternative for a decade. Politics Historically, farm bills have not been particularly partisan measures, and in the case of the 2014 farm bill, ideology was not one of the driving factors in political conflict during the formulation of the bill (Russell, 2018). Instead, the politics of the bill center around the divide between the SNAP program and the commodity program. Russell (2018) found that one of the primary motivating factors for supporting the farm bill was the size of a legislator’s rural constituency. Republicans, who have greater rural constituencies, found themselves behind the more aggressive PLC program and in favor of cutting $40 billion from SNAP; thus, the more aggressively pro-farm lobby bill originated in the House, where Republican Rep. Lucas chaired the Agriculture Committee. Conversely, a more conservative commodity program and less aggressive cuts to SNAP came out of the Senate, where Democratic Sen. Stabenow chaired the Agriculture Committee. The political stream only came into alignment during the conference that allowed the House and Senate bills to be reconciled (Tomson, 2014). Because the problems had already been identified and policymakers had already agreed upon the shift away from direct payments to the ARC/PLC style

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programs, all that remained was the politics stream (Smith, 2013). With that stream in line after the conference, the policy window opened, and legislation was passed in early 2014.

Incremental Model

The progress of U.S. agricultural policy can also be understood in terms of the incremental model. Dye (2017) defined the incremental model as “public policy as a continuation of past government activities with only incremental modifications” (p. 15). For the purposes of this study, analysis will only go back to the 1996 FAIR Act, where direct payments are first instituted (Young & Shields, 1996). The 1996 farm bill begins the process by instituting the direct payments program in addition to the counter-cyclical payments program which already existed (United States Department of Agriculture, 1996). The 2002 farm bill made slight modifications to both the direct payments and the counter-cyclical payment systems, as farm bills have historically done, to adjust for market changes (United States Department of Agriculture, 2002). Additionally, the direct payments program was made permanent. Again, in the 2008 bill, minor adjustments were made to the direct payments and counter-cyclical payment programs, while the new optional ACRE program was added (United States Department of Agriculture, 2008). Finally, in 2014, the farm bill repealed the direct payment, counter-cyclical payment, and ACRE programs, and replaced them with the ARC and PLC programs (Chite, 2014). The process seems facially incremental from 1996 through 2008; while the complete replacement of direct and countercyclical payments seems not to fit with the incremental model, if the process is understood in terms of policy “ideas” and not programs as such, the incremental model fits. The core function of the bill— giving money to farmers—did not change, as in a complete institutional overhaul like the Affordable Care Act. Rather, the method for delivering money to farmers changed very gradually from the counter-cyclical system, to the introduction of the direct payment system, to the introduction of the provisional ACRE system, to the phasing out of the direct payment and countercyclical system in favor of a system similar to ACRE, the ARC and PLC programs. The shift is not revolutionary, but instead represents incremental change from one iteration of a policy to another.

Group Equilibrium Model

According to Dye (2017), “group theory begins with the proposition that interaction among groups is the central fact of politics” (p. 16). The group theory model hinges around a sort of struggle between different groups, both applying pressure to the political process, until the system arrives at some sort of equilibrium. Zulauf and Orden (2016) found a form of this model applicable to U.S. farm policy. They wrote:

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The farm bill can be viewed as the outcome of the policy process mediating the interplay of two types of markets. One is the set of economic markets encompassing farm commodities, food, and environmental services. The second is the political market encompassing organized interests, institutions, and ideas. Moreover, since farming is now a small and concentrated sector, U.S. farm policy can be viewed as an equilibrium result of organized group lobbying. (Zulauf & Orden, 2016, para. 15) As Kingdon (2011) pointed out, budgets provide an important constraint on the policy process. In the case of agricultural policy, a number of diverse interests are all competing for the finite amount of funds Congress can allocate to farm policy in a given year. In farm policy, the organized lobbying groups that Zulauf and Orden (2016) mentioned are often tied to a specific crop, like corn, or in the following example, upland cotton. These organizations put pressure on Congress when their share of the commodity program is unusually low or the share of another group is unusually high (Zulauf & Orden, 2016). As an example, average commodity spending on upland cotton was 25% of all commodity outlays during fiscal years 2005-2012, compared to an average of 15% from 1978-2014 cumulatively (Zulauf & Orden, 2016). See Figure 2 for a comparison of top commodity spending by percentage from 1978 through 2015. In response to this excess in typical spending, upland cotton’s share of the commodity program was slashed by the 2014 farm bill to bring its spending back into line, appeasing the other elements of the farm lobby (Zulauf & Orden, 2016).

Figure 2. Graph of 3-year share of commodity program spending, 3 commodities with highest shares, U.S. fiscal years 1978-2015 (Zulauf & Orden, 2016).

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Assessment of the Commodity Provisions of the 2014 Farm Bill

The standards laid out for the assessment of the ARC and PLC commodity programs in this study correspond with the expressed goals of the revisions to the program as found in the analysis of debate leading up to the program and the problems inquiry under Kingdon’s model: the reduction of spending from the direct payments model (Smith, 2013). In 2015, Daren Bakst of The Heritage Foundation looked at the issue of the objective of the PLC and ARC programs and found them both to be failures (Bakst, 2015). He attributed this failure to an assumption during the debates that prices would stay at the record highs they had reached during the debate, an assumption he had warned against at the time (Bakst, 2013; Bakst, 2015). Bakst (2015) reported that the CBO’s cost projections for the bill before it was passed were $3.8 billion in the first year and a $3.6 billion five-year annual average. Updated CBO estimates in January 2015 reported first-year cost projection at $4.4 billion and five-year annual average at $5.3 billion, a difference of $600 million and $1.7 billion respectively (Congressional Budget Office, 2015). To contrast these numbers, Bakst (2015) offered the projected annual cost of continuing the direct payments program, $4.5 billion annually. As demonstrated in Figure 1, the direct payments program was fairly stable, with payments in the $4-6 billion per year range, and there seems little reason to believe that costs would deviate. In 2016, Vincent H. Smith (2016) of the American Enterprise Institute found similar trends in the CBO’s 2016 baseline report when contrasted with the 2014 CBO cost projections. He found that on average the ARC and PLC increased farmsubsidy spending by 30%, or about $1.5 billion a year (Smith, 2016). His findings are presented in Figure 3. Bakst’s (2015) and Smith’s (2016) analyses of the 2014 farm bill’s ARC and PLC programs do not paint a rosy picture of the bill’s commodity program success. However, this study will take a final look at the data presented in the most recent CBO reports before issuing a final verdict. The data does not deviate significantly from Smith and Bakst’s findings. The 2014 CBO estimates are radically below the estimates given by the CBO in 2018 (Figure 4). The average difference between the two over the four years this study contributed to the aggregate data is a whopping $3.82 billion per year. Relative to the cost of the direct payments program at $4.5 billion per year, the 2017-2020 ARC/PLC spending is projected to be on average $2.02 billion more expensive (Congressional Budget Office, 2018; Smith, 2015).

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Figure 3. Bar graph of CBO 2014 & 2016 Budget Forecasts of Total Subsidy Expenditures on the Farm Bill ARC and PLC Programs (Smith, 2016).

Figure 4. Bar graph comparison of the CBO 2014 & 2018 Budget Forecasts of Total Subsidy Expenditures on the Farm Bill ARC and PLC Programs (Congressional Budget Office, 2014; Congressional Budget Office, 2018).

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Conclusion This study finds that Kingdon’s “three streams” model of policy analysis best describes the circumstances leading up to the enactment of the 2014 farm bill. His model pinpoints the budget as the primary concern of the commodities title of the bill, describing the “softening up” period the ARC and PLC programs had to go through beginning earlier in the House Agriculture committee in 2002, and looks at the importance of the political process in reconciling rural and non-rural interests through the House and Senate versions of the bill. The incremental model was the second most effective and described the way in which subsidy models have gradually shifted from one farm bill to the next. Finally, the group theory model seems to be the weakest, since it only describes a more minor element of the farm bill process, rather than the items most actors and commentators focused on as the impetus for the legislation. Given the understanding derived from the models section of this study (that the ARC and PLC programs are attempted cost-saving measures), Bakst (2015), Smith (2016), and this study all conclude that the ARC and PLC programs were failures. In accordance with Bakst, this study recommends that when considering the 2018 redrafting of the farm bill, Congress consider capping actual expenditures at 110% of the CBO estimates provided before the bill is passed, in order to avoid unexpected cost increases generated by a fluctuating market (Bakst, 2015). Otherwise, if budget reduction is still the goal, the Senate and House Agriculture Committees ought to go back to the drawing board and develop a new subsidy plan.

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Reference List Bakst, D. (2013). Proposed new farm programs: Costly and risky for taxpayers. Heritage Foundation. Retrieved from http://www.heritage.org/research/ reports/2013/06/proposed-new-farm-programs-costly-and-risky-fortaxpayers Bakst, D. (2015). Capping the costs of the two major new commodity programs. Heritage Foundation. Retrieved from https://www.heritage.org/agriculture/ report/capping-the-costs-the-two-major-new-commodity-programs Bosso, C. (2017). Framing the farm bill: Interests, ideology, and Agricultural Act of 2014. Lawrence, KS: University Press of Kansas. Cain, D. (2013, October 10). Lawmakers increase push to end to direct payments. AgriPulse. Retrieved from https://www.agri-pulse.com/articles/3307lawmakers-increase-push-to-end-to-direct-payment Chite, R. M. (2014). The 2014 farm bill (P.L. 113-79): Summary and side-by-side (CRS Report No. R43076). Congressional Research Service. Retrieved from http://nationalaglawcenter.org/wp-content/uploads/assets/crs/R43076.pdf Congressional Budget Office. (2014). CBO’s April 2014 baseline for farm programs [Data set]. Retrieved from https://www.cbo.gov/sites/default/files/ recurringdata/51317-2014-04-usda.pdf Congressional Budget Office. (2015). CBO’s January 2015 baseline for farm programs [Data set]. Retrieved from https://www.cbo.gov/sites/default/files/ recurringdata/51317-2015-01-usda.pdf Congressional Budget Office. (2018). CBO’s April 2018 baseline for farm programs [Data set]. Retrieved from https://www.cbo.gov/sites/default/files/ recurringdata/51317-2018-04-usda.pdf Dewey, C. (2017, November 23). A growing number of young Americans are leaving desk jobs to farm. Washington Post. Retrieved from https://www. washingtonpost.com/business/economy/a-growing-number-of-youngamericans-are-leaving-desk-jobs-to-farm/2017/11/23/e3c018ae-c64e-11e7afe9-4f60b5a6c4a0_story.html?utm_term=.b7cc943c2935

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Dimitri, C., Effland, A., & Conklin, N. (2005). The 20th century transformation of U.S. agriculture and farm policy. United States Department of Agriculture/ Economic Research Service. Retrieved from https://www.ers.usda.gov/ webdocs/publications/44197/13566_eib3_1_.pdf?v=41055 Dye, T. R. (2017). Understanding public policy (15th ed.). Boston, MA: Pearson Education, Inc. Effland, A. B. W. (2000). U.S. farm policy: The first 200 years. United States Department of Agriculture/Economic Research Service. Retrieved from https://wayback.archive-it.org/5923/20110915024912/http://ers.usda.gov/ publications/agoutlook/mar2000/ao269g.pdf Effland, A. B. W., & Young, E. (2001). U.S. farm policy for the 21st century: A diversity of visions for the future. United States Department of Agriculture/ Economic Research Service. Retrieved from https://wayback.archive-it. org/5923/20111129025001/http://ers.usda.gov/publications/AgOutlook/ may2001/AO281b.pdf Green, E. (2013, November 13). How to pass the farm bill: Make it about anything but farm subsidies. The Atlantic. Retrieved from https://www. theatlantic.com/politics/archive/2013/11/how-to-pass-the-farm-bill-makeit-about-anything-but-farm-subsidies/281438/ Keeney, R. (2013). The end of the direct payment era in U.S. farm policy. APEX. Retrieved from https://www.extension.purdue.edu/extmedia/ec/ec-774-w. pdf Kingdon, J. W. (2011). Agendas, alternatives, and public policies (2nd ed.). Glenview, IL: Pearson Education, Inc. Orden, D. & Zulauf, C. (2015). Political economy of the 2014 farm bill. American Journal of Agricultural Economics, 97(5), 1298-1311. https://doi.org/10.1093/ ajae/aav028 Russell, L. A. (2018). Ideology, electoral incentives, PAC contributions, and the Agricultural Act of 2014. Mercatus Center. Retrieved from https://www. mercatus.org/system/files/russell-agricultural-act-2014-mercatus-workingpaper-v1.pdf

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Smith, V. H. (2013, September 25). The House and Senate farm bills don’t make the grade. The Hill. Retrieved from http://thehill.com/blogs/congress-blog/ economy-a-budget/324275-the-house-and-senate-farm-bills-dont-makethe-grade Smith, V. H. (2016). A midterm review of the 2014 farm bill. American Enterprise Institute. Retrieved from http://www.aei.org/wp-content/uploads/2016/02/ Midterm-Review.format.pdf Stabenow, D. (2013). GOP bill takes food from hungry children and struggling families. The Hill. Retrieved from http://thehill.com/opinion/oped/323217-gop-bill-takes-food-from-hungry-children-and-strugglingfamilies#ixzz2fQSs6wIR Tomson, B. (2013, October 16). Farm Bureau: Don’t kill old bills. Politico. Retrieved from https://www.politico.com/story/2013/10/farm-bureau-dontkill-old-farm-bills-while-passing-new-one-098370 Tomson, B., & Parti, T. (2014, January 28). Plenty of farm bill winners, losers. Politico. Retrieved from https://www.politico.com/story/2014/01/farm-billreview-102726 Tomson, B. (2014, February 7). Farm bill signed; USDA on the clock. Politico. Retrieved from https://www.politico.com/story/2014/02/farm-billusda-103270 United States Department of Agriculture/Economic Research Service. (1996). 1996 FAIR Act frames farm policy for 7 years. Agricultural Outlook Supplement. Retrieved from https://www.ers.usda.gov/webdocs/ publications/42096/32943_aosupp_002.pdf?v=0 United States Department of Agriculture/Economic Research Service. (2002). The 2002 farm bill: Provisions and economic implications. Retrieved from https://www.ers.usda.gov/webdocs/publications/42660/13766_ap022_2_. pdf?v=41879 United States Department of Agriculture/Economic Research Service. (2008). 2008 farm bill side-by-side. Retrieved from https://wayback.archive-it. org/5923/20111128231159/http://ers.usda.gov/FarmBill/2008/Titles/ TitleIcommodities.htm#direct

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United States Department of Agriculture/Economic Research Service. (2018). Agriculture Act of 2014: Highlights and implications. Retrieved from https:// www.ers.usda.gov/agricultural-act-of-2014-highlights-and-implications/ United States Department of Agriculture/Farm Service Agency. (2017). 2014 farm bill fact sheet: ARC and PRC enrollment. Retrieved from https://www. fsa.usda.gov/Assets/USDA-FSA-Public/usdafiles/FactSheets/2017/arcplc_ enrollment_aug2017.pdf Young, E., & Shields, D. A. (1996). 1996 FAIR act frames farm policy for 7 years. United States Department of Agriculture/Economic Research Service. Retrieved from https://www.ers.usda.gov/webdocs/ publications/42096/32943_aosupp_002.pdf?v=0 Zulauf, C., & Orden, D. (2014). The US Agricultural Act of 2014: Overview and analysis. International Food Policy Research Institute. Retrieved from http:// www.gii.ncr.vt.edu/docs/US%20Ag%20Act2014.pdf Zulauf, C., & Orden, D. (2016). 80 Years of farm bills—Evolutionary reform. Choices Magazine. Retrieved from http://www.choicesmagazine.org/choicesmagazine/theme-articles/looking-ahead-to-the-next-farm-bill/80-years-offarm-billsevolutionary-reform

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George Wythe was one of the premier scholars in early American history. The first law professor in America, he was a strong supporter of the War for Independence and a zealous patriot. Many of America’s most influential leaders, such as Thomas Jefferson, studied under his guidance. Furthermore, as a framer of the Constitution, Wythe left a legacy that the United States still honors to this day. The George Wythe Review adopted his name in memory of his brilliant scholarship and in hopes that this journal might emulate Wythe’s dedication to our country.

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Acknowledgements The George Wythe Review would like to gratefully recognize the Collegiate Network for their contribution to the success of our publication.

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American Politics & Policy Program georgewythereview.com