UCLA Undergraduate Law Journal - Volume XVI

UCLA UNDERGRADUATE LAW JOURNAL VOLUME XVI

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SPRING 2017

CONTENTS SECURING PRIVACY IN SURVEILLANCE

A

TIME

OF

TERRORISM

AND

Tomas Arriaga

1

HEURISTICS AND INTERNATIONAL COMMERCIAL ARBITRATION: EXPLORING THE EFFECTS OF COGNITIVE BIASES ON DISCOVERY

Arjun Gananathan

16

RACIAL DISCRIMINATION AND PEREMPTORY CHALLENGES IN THE POST-BATSON ERA

Sareen Ishanyan

32

EVALUATING INTERNATIONAL EFFORTS THE CRIME AGAINST HUMANITY

Eddie Kim

46

FEDERAL MANDATORY MINIMUM SENTENCES FOR DRUG CRIMES: A BURDEN ON OFFENDERS, COMMUNITIES, AND THE FEDERAL PRISON SYSTEM

Emily Kohlheim

67

THE STRUGGLE FOR HONG KONG’S AUTONOMY UNDER THE PEOPLE’S REPUBLIC OF CHINA’S RULE: HOW CAN INTERPRETATIONS OF HONG KONG’S BASIC LAW BE JUSTIFIED?

Kyle Lo

82

ETHICS

Alberto Lugo

106

FROM THE INDEPENDENT COURT TO POLITICS AS USUAL: EVIDENCE AND CONSEQUENCES OF A POLITICIZED AND PARTISAN SUPREME COURT

Austin Steinhart

129

THE RESPONSIBILITY SOVEREIGNTY

Aleksija Vujicic

144

TO

COMBAT

AND IMMIGRATION:

FOR IMMIGRATION

A MORAL ARGUMENT REFORM

TO

PROTECT . . . STATE

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Editor-in-Chief Alexander Nabavi-Noori Managing Editor Kevin El Khoury Associate Editor Jeremiah Barnett Copy Editors Holt Alden Isaiah Casabella Robert Davydov Annie Guilyard Kunal Jhaveri Bapuchandra Kotapati Meghann Lamb Jasmine Paek Axel Sarkissian Justin Schmerler Jenn Teitell Vanessa Young President Genevieve Javidzad Vice President Chris Han

THE UNDERGRADUATE LAW JOURNAL AT UCLA is published every Spring quarter by the UCLA Pre Law Society, located at 4272 Bunche Hall, Los Angeles, CA, 90095. The journal is a student-produced publication written entirely by undergraduate students from UCLA and other universities across the country with the aim of furthering undergraduate legal research. Copies are available at the UCLA Campus Bookstore and the Pre Law Society office, as well as available online at the Pre Law Society website: uclaprelawsociety.com.

FOREWORD It is my great pleasure to have contributed to the publication of Volume 17 of the UCLA Undergraduate Law Journal. For the past seventeen years, the Journal has been a place for undergraduates to explore ideas, experiment with their voice, and offer unique perspectives on pressing legal and political issues of the day. As one of the few undergraduate law journals in the country, we pride ourselves on providing our writers with the opportunity to collaborate in the pursuit of their interests and engage each other in a thoughtful discourse that cannot happen anywhere else. Over the years this has led to phenomenal research and writing on legal issues unmatched at any other undergraduate institution. This year’s writers have worked hard on their research and comprise one of our best cohorts yet. Covering a wide range of topics in areas from legal philosophy to substantive policy critiques, this year’s articles continue to exemplify the intellectual curiosity and vigor that our campus fosters. I am proud to have worked with each of our writers in producing this year’s publication and prouder still to have contributed to this journal during each of my four years at UCLA. As I now sign off from this journal and prepare to leave UCLA, I am more excited than ever to see what this journal will produce in the years to come. Alexander Nabavi-Noori Editor-in-Chief 2016-17 The UCLA Undergraduate Law Journal is different. It is a publication that is held to higher standards with each of its contributors demonstrating an acute appreciation for jurisprudence around the world. This issue only burgeons its reputation. To the writers, editors, and, of course, our peerless leader, Alexander: it has been a pleasure and a privilege. Publication is anything but a walk in the park. I can hardly imagine sprinting towards deadlines while getting stung by criticism with any other group of individuals. Last but certainly not least, this journal is an incomparable platform for social change. We have spoken in the hopes that you, esteemed reader, will listen. Kevin El Khoury Managing Editor 2016-17

SECURING PRIVACY IN A TIME OF TERRORISM AND SURVEILLANCE

Tomas Arriaga*

Does the U.S. government owe citizens privacy? If so, to what extent of privacy are citizens entitled to? The question of whether civil liberties should come before national security interests or take a supporting role behind them has long been debated in United States courts. In cases such as Terminiello v. City of Chicago and Olmstead v. United States, the Supreme Court, although divided, prioritized national security over individual liberties. Throughout the Court’s history, it seems to have analyzed the same question through many different lenses, ranging from whether speech against the military constitutes a national threat to whether or not the government has the right to search individual’s cell phones. This article analyzes the progression of the Supreme Court’s changing standards in protecting a citizen’s implicit right to privacy, looking at a wide breadth of cases from Dred Scott v. Sanford (1857) to Riley v. California (2014). It discusses eras where national security was highly favored by the people and the Supreme Court alike such as post-9/11 and the aftermath of the public finding out the extent to which their privacy was infringed on through the Patriot Act. Ultimately, it concludes that while it is necessary to keep the country safe, the Supreme Court must refrain from practicing deference to Congress and the Executive in future cases when it comes to protection of civil liberties.

I.

INTRODUCTION

As Justice Richard Posner stated, “[p]eople hide from the government, and government hides from the people, and both the people and the government have both good and bad reasons for hiding from another.”1 The people want to hide their intimate beliefs from the government, while the government wants to conceal its secrets related to national security. Both principles are prominent in their own right. So the question then becomes whose right to secrecy is more important when the principles collide: that of the people or the government? In cases like this where it is the * Tomas Arriaga is a fourth year Political Science major and Public Policy minor at the University of California, Los Angeles. Editor: Annie Guilyard is a third year Political Science major at the University of California, Los Angeles. 1. RICHARD A. POSNER, NOT A SUICIDE PACT: THE CONSTITUTION IN A TIME OF NATIONAL EMERGENCY, 132 (2006).

1

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rights of the people, like privacy, versus the government’s secretive interests in national security, the ultimate decider and referee is and should be the Supreme Court. Throughout its history the Court has tackled the issue of privacy versus national security and to this day has yet to formally create a steady doctrine between the two as it has created for other legal topics. In United States v. United States District Court for the Eastern District of Michigan (1972), from here on known as the Keith case, the Court stated, “[i]t has been said that ‘[t]he most basic function of any government is to provide for the security of the individual and of his property.’ And unless Government safeguards its own capacity to function and to preserve the security of its people, society itself could become so disordered that all rights and liberties would be endangered.”2 Likewise, the view presented in Keith was similarly reiterated in Justice Robert Jackson’s dissenting opinion in Terminiello v. City of Chicago (1949) where he stated, “[t]he choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”3 Both of these views highlight the importance of national security and argue if we place more emphasis on civil liberties over our country’s security we will suffer in the long haul. This logic has been used in the past but more recently with the Guantanamo cases in the Supreme Court and the State of Washington and State of Minnesota v. Trump 4 in the lower courts this doctrine appears to be altering with importance switching over to individual liberty, as it should be. Justice Jackson is correct when he underlined the choice is between “liberty with order,” as these two principles are bedrocks in our Constitution and need the other to truly be worth protecting. However, Justice Jackson is amiss in his notion that the Bill of Rights, i.e. the importance of civil liberties, could be a “suicide pact” for our country. On the contrary, the value of national security and the deference given to the executive branch with the War on Terror gives the government the means to do what it sees fit to fight the war might be our modern day “suicide pact.” In daunting times like today we must never forget the value of individual liberties, specifically our privacy, since these are the foundational underpinnings many in the armed forces are currently fighting for. Thus, the Court must stop deferring to Congress and the president and embrace its constitutional role of protecting privacy and individual liberties when cases dealing with these matters arise. 2. 3. 4.

United States v. United States Dist. Ct., 407 U.S. 297, 312 (1972) See Terminiello v. City of Chicago 337 U.S. 1 (Douglas, Circuit Justice 1949) See State of Washington v. Trump

Securing Privacy in a Time of Terrorism and Surveillance II.

HISTORY

OF

3

PRIVACY JURISPRUDENCE

A. Brandeis and the Foundational Underpinnings of Privacy In assessing the value the Court has on these principles, attention must be paid to the Court’s past jurisprudence on these aspects to analyze how and where it could be morphed. For the first 100 years of the nation, most of the people and the Court did not believe a constitutional right to privacy existed until Samuel Warren and Louis Brandeis started advocating for and wrote their legendary Harvard Law Review article “The Right to Privacy.” In the now famous article they go on to argue that the right to privacy means, “. . .the right to enjoy life, — the right to be let alone; the right to liberty secures the exercise of extensive civil privileges; and the term ”property“ has grown to comprise every form of possession — intangible, as well as tangible.”5 The article was so influential that scholars and even ordinary people started believing a constitutional right to privacy existed or should exist. Unfortunately, most of the Court did not agree with this notion as was proven in the outcome of Olmstead v. United States (1928). Here, the Court held the Fourth Amendment’s proscription on unreasonable search and seizure did not apply to wiretaps.6 See Olmstead v. United States (1928). Although, the Court here believed there was no right to privacy, the newly appointed Justice Brandeis did not waste the chance in getting his thoughts out and formulating a future doctrine in writing one of the Court’s most important dissents in Olmstead. In his dissenting opinion, Justice Brandeis further developed a right to privacy by illuminating the value privacy had on our founders when he stated: “[t]he makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. . . .They conferred, as against the Government, the right to be let alone – the most comprehensive of rights, and the right most valued by civilized men.”7 With these words Justice Brandeis helped spread the influence of the right to privacy and left a lasting influence on the law. At this point in time there was no discussion as to whether privacy was more important than 5. (1890) 6. 7.

Samuel Warren and Louis Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 Olmstead v. United States, 277 U.S. 438, (1928) Id. at 478

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national security because no constitutional right to privacy had been established yet. B. The Warren Court & the Creation of the Right to Privacy In the era of the Warren Court, the ideals of the justices started to change and many now believed a constitutional right to privacy existed, none more than Justice Marshall Harlan. The Warren Court’s first chance to establish a constitutional right to privacy came in Poe v. Ullman (1961) but ultimately a majority of the justices held they could not rule on a challenge of a Connecticut law barring the use of birth control because the plaintiffs suffered no injury and therefore lacked legal standing.8 See Poe v. Ullman (1961). Unlike most of the Court, Justice Harlan believed it was time the Court acknowledged the right to privacy so he dissented. Although the Court missed its chance to establish a right to privacy in Poe, it would not forego another opportunity a few years later when it received another identical challenge to the same law. In Griswold v. Connecticut (1965) the Court finally held the Constitution protected a right to privacy but failed in supporting a single argument as to how that right comes from the Constitution.9 See Griswold v. Connecticut (1965). In other words, the justices struggled to identify concrete evidence for the explicit right to privacy within the text. Justice William Douglas believed the right to privacy came from the penumbras of the First, Third, Fourth, Fifth, and Ninth Amendments, while Justice Arthur Goldberg and Chief Justice Earl Warren believed it came from the Ninth Amendment. Conversely, Justice Harlan asserted that the right to privacy came from the Liberty and Substantive Due Process Clauses of the Fourteenth Amendment. Justice Harlan’s reasoning ultimately won out and is still immensely influential and remains as the most prominent argument used to this day. In these cases, the Court finally substantiated a right to privacy for individuals that greatly influenced major personal liberty cases later on such as Roe v. Wade (1973), Lawrence v. Texas (2003), and Obergefell v. Hodges (2015). Albeit Griswold seldom addressed the government’s national security or police powers, the Court’s finding that a right to privacy did in fact exist started to affect its jurisprudence in the aforementioned areas.

8. 9.

Poe v. Ullman, 367 U.S. 497 (1961) Griswold v. Connecticut, 381 U.S. 479 (1965)

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C. Surveillance and Privacy Before privacy was declared a fundamental liberty by the precedent set forth in Griswold the Fourth Amendment was the most direct reference to the implicit right of privacy. However, in order to seek relief under the Fourth Amendment a physical (emphasis added) trespass had to occur in order for it to count as a “search” within the framework of the Fourth Amendment. This constitutional ambiguity was revised and modernized with Katz v. United States (1967). The issue at hand in this case was reminiscent of the one in Olmstead as to whether wiretaps constitute a search. Unlike in Olmstead however the Court finally ruled wiretaps do constitute a “search,” overturned Olmstead, and changed the Fourth Amendment’s previous interpretation from a physical notion of a trespass to a personal breach.10 See Katz v. United States (1967). With this ruling the Court extended the Fourth Amendment’s protection of merely protecting places to now protecting people who have a “reasonable expectation of privacy.”11 Similarly, the Keith case also dealt with the issue of surveillance without a warrant. In Keith, a unanimous Court reaffirmed the importance of privacy when it found government officials have to obtain a warrant based on probable cause before beginning electronic surveillance even if domestic security issues were involved.12 See Keith. However, the Court also appeared to devise a plan for the government to follow that would allow it to use surveillance more easily without violating an individual’s right to privacy. The Court hinted that when it is important to national security a search based on probable cause could be relaxed when the goal of surveillance was to obtain intelligence information because“. . .’[t]he most basic function of any government is to provide for the security of the individual and of his property.’”13 Due to the Court’s decision, Congress acted and passed the Foreign Intelligence Surveillance Act, or FISA, into law in 1978 that broadened the government’s intelligence powers. The act created the Foreign Intelligence Surveillance Court to authorize surveillance to obtain foreign (emphasis added) intelligence, not domestic, information with the same requirements set forth by the Court. These two instances were some of the first cases to directly address the breadth of privacy juxtaposed with the prominence of surveillance and national security. The Katz and Keith decisions both dealt blows to the government’s law enforcement abilities while they gave citizens even more protection against the government. Nevertheless, both cases did not obstruct the usage of surveillance on citi10. 11. 12. 13.

Katz v. United States, 389 U.S. 347 (1967) Id. at 347 United States v. U.S. District Court, 407 U.S. 297 (1972) Id. at 312

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zens. In the end the cases allowed surveillance to occur in certain situation, provided instructions as to how it should be used, and when the restrictions might need to be lessened for the purpose of national security. With the changing of the composition of the Court and the dawn of the conservative era in the mid-1970s, the Court somewhat insinuated that the right to privacy might have reached its limits. The Rehnquist Court’s decisions in United States v. Miller (1976) and Smith v. Maryland (1979) ultimately led to the constitutional foundation for what would become the Federal Bureau of Investigation’s national security letters and the USA Patriot Act/USA Freedom Act’s section 215 provision, which both allow the government to collect information for national security purposes. This new “third party doctrine” allowed the government to ask for and collect information that has been given to businesses and third parties such as banks, phone companies, or even libraries. These cases were a significant blow to privacy and a great victory for the government and national security advocates because now they could uncover a substantial amount of private information without necessarily conducting surveillance.

III.

HISTORY

OF

PRESIDENTIAL POWER

AND

WAR POWERS

A. Rise of Presidential Power With the Great Depression, World War II, and after President Franklin D. Roosevelt’s court packing scheme the Court generally expanded the president’s power to levels never seen before. Since the beginning of the nation’s founding, presidents have always maintained a great responsibility to “preserve, protect, and defend” the Constitution. In order to allow the president to have the best authority to do so Alexander Hamilton, Gouverneur Morris, and other Framers made Article II’s vesting clause intentionally vague in stating “The Executive Power shall be vested in a President”14 Here, the Framers chose to not define “Executive Power” and left few enumerated powers, compared to Article I, because they opined if they limited the president he would not be able to run the nation adequately. In doing so, the Framers allowed the president to go beyond the powers set forth in Article II to allow him to have sufficient power for different situations. This “general grant of power” view, or the stewardship theory, essentially allows the president to act for the common good as long as neither Congress nor the Constitution prohibits him from doing so. With the nation in crisis, the Court generally allowed the president to enact most of his policies to help ease the Great Depression and prepare the country 14.

U.S. CONST. art. II, § 1, cl. 1.

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7

for war even if they were seen as overreaching by many. One of the most meaningful decisions that the Court made during this time was when it upheld one of the most constitutionally and morally suspect laws enacted in Executive Order 9066. B. Presidential War Power & its Limits: Creation of Strict Scrutiny With the U.S. entrance into World War II after the attack on Pearl Harbor, anti-Japanese hysteria spread throughout the West Coast and fears of a possible sabotage orchestrated by Japanese Americans on the Pacific Coast increased. Due to these fears, Roosevelt acquiesced and enacted Executive Order 9066 in 1942, which authorized certain areas as military zones, and cleared the way for the deportation of Japanese Americans to internment camps. Even before this decree, the Court had already started to establish a standard of review that frowned upon this type of discrimination, known as strict scrutiny. In writing his majority opinion in United States v. Carolene Products (1938) Justice Stones included Footnote Four which stated, “[i]f a law appears to deal with basic individual liberties in the Bill of Rights and affect minorities outside political process may call for more searching judicial inquiry.”15 See United States v. Carolene Products (1938). With this the Court let it be known strict scrutiny will be used when the state discriminates on the basis of a criterion that the Court has declared to be inherently suspect or when there is a claim that the discrimination adversely affects the exercise of a fundamental right, which would later include the right to privacy. Under this standard, for a law to be valid it must be narrowly tailored to provide the least restrictive means available to achieve a compelling state interest. When strict scrutiny is used the Court presumes that the state action is unconstitutional so the burden of proof is on the government to demonstrate that the law is constitutional and necessary. With this standard one would expect hardly any governmental behavior that discriminates minority groups or violates a fundamental liberty, let alone the definition of a discriminatory law such as this, to be deemed constitutional. However, in two challenges to the law the Court laid down a compelling interest that allows for fundamental liberties to be violated, and that was national security. See Hirabayashi v. United States (1943) and Korematsu v. United States (1944). In Hirabayashi v. United States (1943), the Court held curfews were allowed against Japanese Americans because we were at war against their country. In Chief Justice Stone’s majority opinion he wrote, “[t]he war power of the national government is ‘the power to wage war success15.

United States v. Carolene Products Company, 304 U.S. 144 (1938).

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fully. . .[as such] an appropriate exercise of the war power. . . is not impaired because it has restricted the citizen’s liberty.”16 Here, Chief Justice Stone lamented that the Court did not want to interfere with the nation’s ability to fight the war. It is important to note however that in this case the Court decided to ultimately evade the question as to whether the internment was constitutional so it did not use the strict scrutiny standard at this time because it did not want to limit the president’s power in the middle of the war. Ultimately, the Court would take up this issue again and decided on the internment question when it used strict scrutiny for the first time in Korematsu v. U.S. (1944). In this case a 6-3 Court endorsed the government’s program to remove all Japanese Americans from the Pacific Coast states and relocate them to inland detention centers.17 See Korematsu v. U.S. (1944). Although the Court used the strict scrutiny standard, it ultimately ruled in favor of interment and the government because it found a “[p]ressing public necessity may sometimes justify the existence of such restrictions. . .when, under conditions of modern warfare, our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.”18 Here, the “pressing public necessity” the Court alluded to was national security. Although, Korematsu has been seen as one of the Court’s most regretful decisions, along with Dred Scott v. Sanford (1857) and Plessy v. Ferguson (1896), it has yet to be overturned and is still “good law.” Due to this, precedent holds that national security counts as a strong compelling interest that allows discrimination against minorities or the violation of fundamental liberties. It is the decisions in these opinions that emphasize and meet the philosophy stated in the Keith and Justice Jackson’s quotes. With this the Court further added to the president’s war powers while etching out the belief that national security must trump fundamental liberties in times of war. C. Limits on Presidential Power in Peacetime Ultimately, with the victory in World War II and the relative peace that followed, the Court ceased to allow the president to further increase his power and instead started to restrict it, a common trend that occurs after any national crisis. This practice occurred in Youngstown Sheet and Tube Co. v. Sawyer (1952) where President Truman took control of steel mills on his own decree because of national security concerns. Ultimately, the majority opinion ruled Truman did not have the inherent authority to 16. 17. 18.

Hirabayashi v. United States, 320 U.S. 81 (1943) Korematsu v. United States, 323 U.S. 214 (1944) Id. at 216

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seize the mills under his own constitutional powers or through statutory authority conferred on him by Congress.19 See Youngstown Sheet and Tube Co. v. Sawyer (1952). In spite of the Court’s ruling, the majority opinion has long been upstaged by Justice Robert Jackson’s famous concurring opinion. According to Justice Jackson’s concurrence, the president is at his maximum legitimacy and authority “[w]hen the President acts pursuant to an express or implied authorization of Congress. . .for it includes all that he possesses in his own right plus all that Congress can delegate. . .”20 Thus, although the Court started limiting presidential power it still deferred to the executive and Congress when they were on the same side, especially when it came to national security.

IV.

COURT’S ROLE

IN

POST 9/11 SOCIETY

Amidst the 21st century and the modern era of technological advances, the Court will be continually tasked with determining the extent to which the implicit right to privacy is protected. New technologies and their functions, unforeseen by the Founders in their construction of the Constitution, will test the limits of fundamental privacy rights. Especially in the interest of utilizing technology to combat terrorism, national security may once again trump individual liberties. With the attacks on September 11th, 2001 and the fear that came with them, Congress enacted a plethora of legislation that increased the government’s strength such as the Authorization for Use of Military Force (AUMF) and the USA Patriot Act. The Patriot Act gave the government extreme power and leeway to operate in order to counter the terrorist threat. Under the Act, the National Security Agency, NSA, and the Office of Homeland Security were created to bolster domestic surveillance. Accordingly, past legislation like the Foreign Intelligence Security Act (FISA) and the Electronic Communication Privacy Act (ECPA) were amended to provide the government with more security resources at its disposal. For the first decade after the attacks, the government implemented drastic surveillance networks under the AUMF and the Patriot Act, but because these programs were unbeknownst to the public there were no challenges or much public outcry. Due to the attacks and the associated fear it appeared that the Court rarely took on major cases dealing with the competing interests of privacy and national security because it did not want to weaken the government in a time of crises. The Court appeared to defer to the president and Congress in the interest of the nation’s security. However, with the Edward Snowden revelations and 19. 20.

Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952) Id. at 636

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other instances of whistleblowing, the country soon learned about programs that the government used to spy on them such as PRISM, STORMBREW, X-Keyscore, and the usage of “switches.”21 With this, the people uncovered the government’s infringement into their privacy and “[t]he ubiquity of Big Brother no longer shock[ed]” or seemed strange.22 These revelations demonstrate the need for the Court to stop deferring to Congress and executive in the name of national security because in doing so it is valuing national security preeminence over other constitutional liberties, such as privacy, without even a hearing.

V.

COURT’S ROLE

IN THE

FUTURE

OF

PRIVACY

A. Taking a Stand on Meta-Data Collection On the issue of the NSA’s mass meta-data collection, the Court must act to avoid the confusion that has unfolded in the lower courts. Moreover, the Court must take a stand or at least begin protecting people’s private information. Recently the lower courts have taken up two challenges to the National Security Administration’s bulk meta-data collection that may be primers for the Court if it ever decides to hear a case that would challenge the constitutionality of mass surveillance. Although both cases deal with the legality of the meta-data collection, they both ultimately differ in rulings. In Klayman v. Obama (2013) a DC District Court judge held the program possibly violates the Constitution and found Smith was not the appropriate standard because there could not be “a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. . . Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.”23 Meanwhile in American Civil Liberties Union v. Clapper (2013) a New York District Court judge ruled the complete opposite. Here, the judge did in fact use Smith’s Third Party Doctrine and consequently dismissed the case because the petitioners had no reasonable expectation of privacy to information that they voluntarily released.24 See American Civil Liberties Union v. Clapper (2013). Interestingly enough upon appeal, each respective Circuit Court of Ap21. GLENN GREENWALD, NO PLACE TO HIDE: EDWARD SNOWDEN, THE NSA, AND U.S. SURVEILLANCE STATE (2014). 22. RAYMOND WACKS, PRIVACY: A VERY SHORT INTRODUCTION (2010). 23. Klayman v. Obama, 957 F. Supp. 2d 1(D.D.C. 2013) 24. American Civil Liberties Union v. James Clapper, 959 F. Supp. 2d 724(S.D.N.Y. 2013)

THE

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11

peals vacated each of the lower courts judgments and ruled the complete opposite. In Clapper the Second Circuit sided with the Klayman decision, while the DC Circuit concurred with Clapper in its take of the Klayman case. Due to the contradicting ruling on the matter and confusion on the important question of federal law, the Court may one day have to grant certiorari to one of these cases or a similar case and decide the lawfulness of the program for itself. Beyond reconsidering Smith’s Third Party Doctrine, the Court must also reconsider its decision in Illinois v. Lidster (2004). The case itself pertained to the legality of a police checkpoint and the Court allowed it because it was purely informational where there was no individualized nor collective suspicion of the persons stopped.25 However, Judge Richard Posner of the Seventh Circuit noted that Lidster’s assumptions essentially remove suspicion from a search and allows surveillance that invades liberty and privacy to be conducted based on the importance of the information sought.26 However, even Judge Posner, the staunch national security advocate, realized the value of information and all the government could do with it so that, “. . .perhaps [it should be]. . .accorded the status of constitutional ‘property’ or ‘liberty.’”27 I agree with Judge Posner and argue the Court should treat information as “property” or “liberty” to bring it into the protection of the Fourth Amendment or the general right of privacy established in Griswold. Information may not seem as essential to a person’s being, especially when voluntarily surrendered to third parties, but when this information is collected every moment of the day it forms a composite of the person and essentially removes any privacy that individual had. As such, the collection of meta-data of the general public should be prohibited or at the very least minimized. If the collection of meta-data or information is to be allowed in some instances, its permissibility should be limited to exceptions wherein a warrant is granted based on probable cause. B. New Technology & the Court The Court must be on the forefront of tackling new technology and its role in surveillance. The Court and its members must be ready to deal with the new technology of the era and learn as much as it can as it has done in the past whether that may be thermal imaging, GPS, cellphones, or any future x-ray or mind reading technology yet to be created. In Kylo v. 25. 26. 27.

Illinois v. Lidster, 540 U.S. 419 (2004) Posner, supra 91 Posner, supra 132

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United States (2001) the new technology of thermal imaging was at issue. In this case, the Court held the unwarranted use of thermal imaging of a home does in fact constitute a Fourth Amendment “search” because it was a “trespass” of people’s “reasonable expectation of privacy” in their own homes.28 Even still the Court did not rule out the usage of thermal imaging as completely unconstitutional and allowed its usage, given the proper acquisition of a warrant based on probable cause. GPS surveillance was the new technology the Court was forced to face in United States v. Jones (2012). Here, the Court held the attachment of a GPS device on a vehicle to monitor its movement was an unconstitutional search on the part of the government.29 Writing for the Court, Justice Scalia used originalism to relate the new technology with the past. As such, he labeled the exercise a “trespass” because he argued the car is an extension of someone’s home and invading that violates private property.30 Perhaps the biggest case the Court has heard dealing with privacy in the 21st century and new technology was Riley v. California (2014). This case was probably ahead of the justice’s time since it dealt with cellphones but the Court managed to understand the value of it. Here, the Court came the closest it has to laying down a framework between 21st century privacy rights and fighting crime. In this case, it held law enforcement could not search a cellphone of an individual who has been arrested without a warrant.31 See Riley v. California (2014). Writing for the Court, Chief Justice Roberts wrote cell phones “. . .hold for many Americans ‘the privacies of life,’. . .The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”32 Here, the court laid down the importance of a cell phone in an increasingly technologized age and moreover appeared to understand the information it had was of vital importance. Still it did not prohibit the search of it when a warrant was given. In cases like these or new ones the Court must not be reluctant to enter territory that it believes it is not an expert in. It must take a stand in cases like these that are at the forefront of today’s society and must find a way to match these cases to previous cases that deal with privacy.

28. 29. 30. 31. 32.

Kyllo v. United States, 533 U.S. 27 (2001) United States v. Jones, 132 U.S. 945 (2012) Id. At 945 Riley v. California, 573 U.S. (2014) Id. at 28

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C. Limiting Presidential Power The Court must also not defer to the executive when it comes to cases that pit national security against fundamental liberties. If we avoid the central holding of limiting presidential power found in Youngstown Sheet and Tube Co. and instead rely mainly on Justice Jackson’s concurring opinion, any action taken by the president under Congress’ consent could be hard to overturn. Under this doctrine it seems reasonable that most if not all of a president’s actions to fight terror through Congress’ authority under the AUMF or the USA Freedom Act would be harder to rule invalid or unconstitutional. Both the president and Congress could neglect the appropriate course of action in times of a crisis. Members of the Legislative and Executive branch may be preoccupied with their constituents, reelection and public opinion, whereas the Court has no such distractions. Therefore, it should be the Court that intervenes to review the constitutionality of any actions the Executive and Congress jointly take in the name of national security especially when people’s liberties are affected. The government’s main pursuit may be providing our security, but the Court’s primary obligation is protecting the Constitution so it must ensure the government is protecting its citizens while not violating our rights. In cases where national security and any civil liberty, such as privacy, are competing against each other the strict scrutiny standard must be used instead of any lesser test like the rational-basis or intermediate-scrutiny test. Although the Court in Korematsu found national security is a compelling interest when it comes to the government violating fundamental liberties, this reasoning should not be used today because our national security is in no way as in danger as it was in World War II. Thankfully today’s War on Terror is nowhere near the level of World War II in terms of lives lost and mobilization. This could be represented in the fact that Congress has not in the War on Terror, or any war since World War II, declared us to be in a state of war. Make no mistake, the threat of terrorists who want to harm our countries and allies is existent and very daunting, but it does not parallel the bloodiest war in history. I am not challenging the notion that national security is a compelling interest to overcome the violation of a fundamental right during war time because doing so could possibly limit the government’s war powers. However, in Korematsu the Court wrote “the power to protect must be commensurate with the threatened danger. . .” and as mentioned the danger we face today is nowhere near the level as it was in a full-scale war so the government’s policies to deal with this danger must not be too extreme.33 Any measure taken in the name of 33.

Korematsu v. United States, 323 U.S. 214 (1944)

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combatting the War on Terror now or in the future that targets a group based on religion, race, or violates other fundamental liberties is not and should not be justifiable under the strict scrutiny standard set in Korematsu. Thus, the Court must continue in keeping the government accountable to Constitution even in times of crises.

VI.

CONCLUSION

The Court should not indefinitely follow the logic used in the quotes depicted in Keith and by Justice Jackson because this would cause a dangerous dilemma that essentially values national security more than privacy regardless of the circumstances. The Bill of Rights is not a “suicide pact” that keeps the government from serving its function to “preserve the security of its people,” but national security could be used to significantly limit people’s fundamental rights and liberties. The War on Terror has no end in sight so we must never forget the importance of both privacy and national security because without one the other is weakened. For now, this is the reality we live in and although we are safe at the moment there is still a real possibility that another major terrorist attack like 9/11 or smaller attacks like San Bernardino could occur. However, we must be wary and allow some of our rights to be scaled back when the occasion strongly warrants it, but only until the immediate danger recedes. The Court should understand itself as the referee between privacy and national security and value both principles and never undermine the value of individual liberty even in times of war. The goal of this paper is not to argue that national security is not vital to our country’s well-being and future. National security is important and plays a significant function in government so we must not understate its importance. We should value security because extreme curtailments of civil liberties always tend to occur when a threat to national security arises, as we have seen occur before, so we must never let our national security be deeply affected. But, we should also value privacy because there are many intimate aspects of our lives that we want to keep confidential. Privacy allows us to do that because “. . .privacy stakes out a sphere for creativity, psychological well-being, and our ability to love, forge social relationships, and promote trust, intimacy, and friendship.”34 Accordingly, in violating the citizenry’s right to privacy the government is in danger of alienating a large amount of the population in supporting its cause of national security. Ultimately, without the people’s support, the government will suffer in keeping order and in it receiving support from the public in instances of future national security crises. 34.

Wacks, supra 38

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15

When a crisis arises the judiciary, especially the Supreme Court, should follow Geoffrey Stone’s and play an active role in guarding liberty because compared to the other branches it is not held accountable to the voters and public sentiment.35 In conclusion as the Court takes on cases that emphasize the differences between privacy and national security it must continue to seek a balance that does not underestimate the importance of privacy and civil liberties without going to the extreme. If a case like Apple ever reaches the highest Court it must be wary of the implications a decision like this would have. As such, the Court should handle these cases similarly to Judge Posner’s view but with a more neutral stance in that it is “. . .the proper way to think about constitutional rights in a time like this is in terms of the metaphor of a balance. . .with the balance needing and receiving readjustment from time to time as the weights of the respective interest change.” Ultimately, the Roberts Court, or a future court, will have to define what privacy means in this modern, technological era and how it can coexist with national security measures. The Court must set a doctrine that respects the need for national security but limits the government’s power when it severely intrudes into the public’s fundamental liberties and their right to privacy in order to “form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessing of Liberty to ourselves and our Prosperity.”

35. GEOFFREY R. STONE, WAR AND LIBERTY: AN AMERICAN DILEMMA: 1790 TO THE PRESENT, (2007).

HEURISTICS AND INTERNATIONAL COMMERCIAL ARBITRATION: EXPLORING THE EFFECTS OF COGNITIVE BIASES ON DISCOVERY

Arjun Gananathan*

Legal scholars and practitioners have argued that international commercial arbitration is failing in its elemental objective to serve as a cost-effective, timesaving, and less-formal alternative dispute resolution (ADR) method for parties engaged in commercial transactions. For this reason, scholars have advocated a reassessment of arbitral guidelines, asserting that a reasonable limitation on party autonomy would be justifiable in an effort to restore the efficacy of international arbitration. In particular, cognitive biases — which are defined as systematic patterns of deviation from norm or rationality in judgment — have the potential to contribute to an increasingly cost-ineffective discovery procedure. Arbitrators, despite their substantial proficiency in interpreting legal situations, remain susceptible to the influence of cognitive biases. This article asserts that the role of cognitive biases in undermining the efficacy of the discovery process provides an additional incentive for the arbitral community to enact a reasonable limitation on party autonomy. The article will examine four cognitive biases that significantly influence decisionmaking in the discovery process, including the anchoring bias, representativeness heuristic, confirmation bias, and sunk-cost fallacy. In this regard, restricting the influence of cognitive biases would help restore the efficacy of a protracted taking of evidence procedure. This article presents three bias mitigation approaches that warrant consideration: the cognizance approach, the bottom-up approach, and the provision of scripts and checklists.

I.

INTRODUCTION

Arbitration is an alternative dispute resolution (ADR) method with one or more persons hearing a dispute and rendering a binding decision. Legal scholars and practitioners have argued that international commercial arbitration is failing in its elemental objective to serve as a cost-effective, * Arjun Gananathan is a sophomore studying Psychology and Linguistics at UCLA. Arjun intends to continue on to graduate study in Law and Education. Editor: Bapuchandra Kotapati is a junior studying Economics and Public Affairs at UCLA. His primary academic interests lie at the intersection of law, economics, and policy. He currently serves as the External President of the United Nations Association at UCLA. He plans to attend law school after graduation.

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timesaving, and less-formal ADR method for parties in commercial transactions.1 Indeed, the guidelines that were intentionally designed to provide a high level of party autonomy in arbitration instead threaten its efficacy as an ADR method. Most notably, the extensive misuse of discovery tools by parties diminishes the cost-effectiveness of arbitration; the arbitral institution’s gravitation towards unchecked party autonomy has resulted in the loss of balance between a wide scope of discovery and efficiency. For this reason, scholars have advocated a reassessment of arbitral guidelines, asserting that a reasonable limitation on party autonomy would be justifiable in an effort to restore the efficacy of international arbitration.2 In part, cognitive biases — which are defined as systematic patterns of deviation from norm or rationality in judgment — have the potential to negatively influence the decisionmaking abilities of arbitrators, parties, and counsel, and contribute to increasingly cost-ineffective arbitral proceedings. Cognitive biases are conceived when the set of implicit mental shortcuts individuals routinely use to solve problems fail to construct an accurate or logical judgment, leading individuals to draw erroneous conclusions about reality.3 Arbitrators, even when considering their aptitude in interpreting legal situations, remain susceptible to the influence of cognitive biases. Existing empirical research on the heuristics involved in legal decisionmaking suggests that cognitive biases directly impact the rational decisionmaking of state-appointed judges. More recent studies have demonstrated that arbitrators are influenced by cognitive biases in analogous ways.4 However, the manner in which these biases influence the taking of evidence procedure in international arbitration remains relatively 1. See generally John Wilkinson, The Future of Arbitration: Striking a Balance Between Quick Justice and Fair Resolution of Complex Claims, 9 ALTERNATIVE DISPUTE RESOLUTION. 564, 564-66 (2008); Thomas J. Stipanowich, Arbitration: The New Litigation, 2010 U. ILL. L. REV. at 1, 1-59 (2010); Elena V. Helmer, International Commercial Arbitration: Americanized, Civilized, or Harmonized? 19 OHIO. ST. J. ON DISP. RESOL. 35, 35-67 (2003). 2. See Giacomo R. Elgueta, Understanding Discovery in International Commercial Arbitration Through Behavioral Law and Economics: A Journey Inside the Minds of Parties and Arbitrators, 16 HARV. NEGOT. L. REV. 166, 166-191 (2011); Michael Pryles, Limits to Party Autonomy in Arbitral Procedure, 24 J. INTL. ARB. 327, 327-339 (2007); Francisco Blavi & Gonzalo Vial, The Burden of Proof in International Commercial Arbitration: Are We Allowed to Adjust the Scales? 39 HASTINGS INT’L & COMP. L. REV. 41, 76 (2016) (acknowledging the importance of “[B]alancing the parties’ agreement with the arbitrators’ own responsibility to adopt fair and equitable procedures suitable to the circumstances of the arbitration. . .”). 3. Amos Tversky & Daniel Kahneman, Judgment Under Uncertainty: Heuristics and Biases, 185 SCIENCE. 1124, 1131 (1974). 4. Rebecca K. Helm, Andrew J. Wistrich, & Jeffrey J. Rachlinski, Are Arbitrators Human? 13 J. EMPIRICAL LEGAL STUD. 666, 668 (2016) (undermining the notion that the structural and procedural distinctions of opposing institutions might cause disparities in how a judge and an arbitrator arrives at an individual verdict).

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unexplored. In this sense, cognitive biases are pertinent to the active reconsideration of international arbitration’s discovery process. This article asserts that the role of cognitive biases in undermining the efficacy of the discovery process provides an additional incentive for the arbitral community to enact a reasonable limitation on party autonomy. The article will begin with a brief review of international arbitration’s guidelines concerning the taking of evidence, demonstrating how implicit emphasis of party autonomy has resulted in the exploitation of discovery and the attendant loss of cost-effectiveness. Subsequently, the article will examine four prominent cognitive biases that adversely manipulate the decisionmaking abilities of arbitrators, parties, and counsel in the discovery process. The article will then discuss how an unchecked level of party autonomy has the capability to exacerbate the effect of biases. Finally, the article will present counter-bias regulations that warrant consideration in order to minimize the effect of biases on the cost-effectiveness of arbitration.

II.

ARBITRAL RULES REGARDING

THE

TAKING

OF

EVIDENCE

In its inception, international arbitration was designed to serve as a feasible alternative to court litigation, offering parties an unconventional level of sovereignty that allowed them to individually choose where, when, and who would determine a final award. As a result, many of the guidelines that limit the authority of parties and arbitrators were constructed to be deliberately imprecise, permitting an attractive flexibility that is absent in traditional state and federal courts. However, legal scholars have recently questioned the guidelines’ ability to protect of the arbitral institution’s core principle of cost-effectiveness, arguing that the practice of international arbitration has instead become encumbered with the rigidities more commonly associated with court litigation.5 One area in arbitration where such inflexibilities are highly visible is the discovery process, where arbitrators and parties often forego a shortened discovery procedure. This section will explore regulations proposed by various arbitralrule institutions, and reveal how their prioritization of party autonomy has resulted in the loss of efficiency through the widespread misuse of discovery.

5. Elgueta, supra note 2, 181 (“Practitioners lament that arbitration proceedings are becoming as drawn-out and expensive as court litigation. . .); Helmer, supra note 1, 36 (”[I]nvolves. . . the prehearing production of documents. . . at the expense of the speed, efficiency, and low cost of arbitral proceedings“); See Edward R. Leahy & Carlos J. Bianchi, The Changing Face of International Arbitration, 17 J. INTL. ARB. at 19, 51 (2000).

Effects of Cognitive Biases on Discovery

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A. Party Autonomy in Institutional Guidelines The taking of evidence procedure in international arbitration enables one party to formally obtain material from another party through the use of discovery tools such as interrogatories, depositions, or the request for the production of specific documents. Parties are granted the privilege to agree beforehand the extent of discovery in their dispute; the large majority of the institutional regulations, which seek to protect party autonomy, allow them to do so.6 In addition, these same arbitral rule institutions cement the prioritization of litigant freedom by granting a wide scope of discretion to arbitrators appointed by the parties.7 It is important to note that many of these arbitral-rule institutions advise arbitrators to guide the procedure in an economical and delay-free manner.8 Each member of the tribunal has the discretion and duty to preserve a party’s freedom while simultaneously conducting the proceedings expeditiously. By not establishing any rigid rules regarding an appropriate amount of discovery, these institutional guidelines sanction a malleable pre-trial process unlike the strict prolonged discovery procedure in court litigation. In this regard, international arbitrators have been labeled the “wise gatekeepers of discovery.”9 Elgueta asserts that since the institution aims 6. United Nations Commission on International Trade Law, UNCITRAL Model Law on International Commercial Arbitration 1985: With amendments as adopted in 2006 (art. 19.1, 2008), https://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/07-86998_Ebook .pdf; London Court of International Arbitration, LCIA Arbitration Rules: Effective 1 October 2014 (art. 14.2-14.3, 2014), http://www.lcia.org/Dispute_Resolution_Services/lcia-arbitra tion-rules-2014.aspx (asserting that parties possess the authority to request “joint proposals for the conduct of their arbitration”); International Chamber of Commerce, ICC Rules of Arbitration (art. 22.2, 2017), https://iccwbo.org/dispute-resolution-services/arbitration/rulesof-arbitration/#top (expressing that parties are permitted to discuss the discovery process before terms are presented to the arbitral tribunal). 7. United Nations Commission on International Trade Law, Arbitration Rules as Revised in 2010 (art. 27.3, 2011), https://www.uncitral.org/pdf/english/texts/arbitration/arbrules-revised/arb-rules-revised-2010-e.pdf; International Chamber of Commerce, supra note 6, (art. 22.5) (instructing parties to obey any directive given by the tribunal); London Court of International Arbitration, supra note 6, (art. 14.4) (stating that the tribunal shall sculpt a procedure in a way that is fitting to the given circumstances); American Arbitration Association, Commercial Arbitration Rules and Mediation Procedures: Including Procedures for Large, Complex Commercial Disputes (art. R-34-b, 2013), https://www.adr.org/aaa/Show PDF?doc=ADRSTG_004130 (asserting that “the arbitrator shall determine the admissibility, relevance, and materiality of the evidence offered”). 8. See United Nations Commission on International Trade Law, supra note 7, (art. 17.1); International Chamber of Commerce, supra note 6, (art. 22.1); London Court of International Arbitration, supra note 6, (art. 14.4). 9. Elgueta, supra note 2, 174 (“[A]rbitrators should discharge their duties as the ”wise gatekeepers“ of discovery, selecting the amount necessary to comply with the parties’ desire for an efficient, economic, and speedy proceeding”).

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to function in a timesaving and cost-effective manner, the logical notion is that arbitrators should not permit more discovery than is necessary for a quick and efficient trial, as a party’s choice to engage in a supposedly financially viable alternative indirectly relinquishes its right to an unrestrained level of legal security.10 Elgueta argues that the tribunal should only sanction the production of new documents in instances in which such evidence would serve to verify a previous claim; in all other instances, a narrow application would be preferable to minimize the exploitation of discovery as a strategic harassment technique.11 B. The Resultant Abuse of Discovery The ideal limited use of discovery is not exercised in practice, resulting in an unnecessarily lengthy and uneconomical process evocative of court litigation discovery.12 The vague arbitral guidelines give parties an incentive to relinquish their entitlement to concur with other parties on a mutually suitable amount of evidence, and instead promote the pre-trial wealth and resource battle, wherein parties incessantly employ evidence tools as an aggravation tactic, investing needless amounts of time and money into the discovery process until one exhausts all of its funds.13 Elgueta contends that this abuse of discovery at the hands of litigants and the authorization of such abuse at the will of arbitrators have resulted in the institution afflicting itself with the very same undesirable tediousness associated with court litigation procedure.14 In this manner, the arbitral tribunal can fail in its role as the gatekeeper of discovery, permitting excessive discovery requests to parties and hence forfeiting an expeditious judicial process.15 Elgueta argues that it is important to restrain the use of discovery by enacting stricter regulations, attempts to achieve a balance between the two contrasting concepts that are both crucial to the institution’s foundation.16 10. Id (“According to a basic cost-benefit analysis. . . parties demonstrate their willingness to waive their right to discovery. . .”). 11. See Id. 175. 12. See Claudia T. Salomon and Sandra Friedrich, Obtaining and Submitting Evidence in International Arbitration in the United States, 24 AM. REV. INT’L ARB. 549, 551 (2013); Nicolas C. Ulmer, A Comment on “The ‘Americanization’ of International Arbitration?” 16 MEALEY’S INTL ARB. REP. 24, 25 (2001). 13. Roger P. Alford, The American Influence on International Arbitration, 19 OHIO. ST. J. ON DISP. RESOL. 69, 83 (2003) (describing how “counsel engage in ”brass-knuckle“ tactics that are so alarmingly familiar in American courts”). 14. Elgueta, supra note 2, 166. 15. Id. 182. 16. Id. 189 (“[I]n cases where individuals remain silent about their preferences, a legal system should set rules that steer people’s choices in directions that will improve their welfare. . .”).

Effects of Cognitive Biases on Discovery II.

COGNITIVE BIASES

IN THE

21

DISCOVERY PROCESS

By adversely manipulating the decisionmaking capabilities of arbitrators, parties, and counsel, cognitive biases pose a significant threat to the efficacy of the arbitral discovery process. Daniel Kahneman identifies two main cognitive systems that influence our decisions. System I is associated with intuitive processes that are automatic, involuntary, and fast.17 Conversely, System II is linked to deliberate processes that are intellectually demanding, complex, and slow.18 It is important to note that the two systems do not work individually; System I often presents impressions, feelings, and intuitions to System II, which can adopt them verbatim or amend them using its detailed deliberate processes.19 Tversky and Kahneman find that individuals use cognitive rules of thumb — which are termed heuristics — to help simplify the plethora of information available in any given situation. Individuals rely on heuristics to make quick decisions without having to examine each individual word, sound, or image. In this regard, heuristics are, by definition, intuitive processes and therefore closely related to System I reasoning. And in turn, these mental shortcuts can cause “severe and systematic errors” in judgment, which are defined as cognitive biases.20 A large body of evidence suggests that the decisionmaking of judges and arbitrators is susceptible to these biases and systematic errors in reasoning. Guthrie et al. administered the three-item Cognitive Reflection Test (CRT) to 252 Florida circuit court judges and found that only 14.7% answered all three questions accurately.21 Further analysis showed that these judges averaged only 1.23 out of the three CRT questions.22 In a more recent experiment, 80 arbitrators were given the same CRT test, wherein they scored on average 1.51 out of three, exceedingly similar to 17. DANIEL KAHNEMAN, THINKING FAST AND SLOW 22 (2011) (providing several System I examples like sensing emotion in a voice, answering simple mathematical addition problems, and completing basic idiomatic phrases in a speaker’s native language). 18. Id. (describing System II examples such as completing an important tax form, or counting the frequency of a specific letter in a text). 19. See id. 26. 20. Tversky & Kahneman, supra note 3, 1124. 21. Chris Guthrie, Jeffrey J. Rachlinski, & Andrew J. Wistrich, Blinking on the Bench: How Judges Decide Cases, 93 CORNELL L. REV. at 1, 15 (2007) [hereinafter How Judges Decide Cases] (describing The Cognitive Reflection Test, which is a very brief reasoning task that features three seemingly straightforward questions. However, the instinctual answers individuals obtain are incorrect, and can be attributed to systematic errors in heuristic processes. Individuals who answer the questions correctly usually do so by resisting the urge to rely on intuitive heuristics, instead employing deliberative processes). 22. Id. at 14.

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the Florida judges.23 From these results, Guthrie et al. argue that judges and arbitrators may indeed rely on heuristics when making judgments; their judgment is affected by cognitive illusions that can produce systematic errors in judgment.24 This section will attempt to demonstrate how the anchoring bias, the base-rate fallacy, confirmation bias, and the sunk-cost fallacy adversely impact the efficacy of the arbitral discovery process, and how an unchecked level of party autonomy has the capability to exacerbate the effect of these biases. A. Anchoring Bias The anchoring bias can cause arbitrators to permit unwarranted and excessive levels of discovery, which compromises the efficacy of the discovery process. Anchoring describes individuals’ tendency to rely too heavily on the first piece of information offered when making decisions. Because the anchoring bias can cause individuals to allocate a disproportionate amount of significance to the first piece of information offered, it can cause them to disregard other potentially useful evidence.25 When having to make a decision regarding the true value of an arbitrary item, people tend to rely on this anchor and evaluate every new piece of information in relation to it–even when such comparisons are unwarranted. Previous empirical studies have illustrated that legal decisionmaking is heavily influenced by the anchoring bias. Malouff and Schutte discovered that if a plaintiff’s attorney initially requested a higher amount in damages for a leg injury case, a mock juror would in turn award a higher damages settlement.26 In both situations, the anchor is fixed as the first numeric value the mock juror hears. Even though the legal circumstances remain unchanged, the initial figures demanded disproportionately influenced the mock juror’s decisions. In addition, Mussweiler et al. showed that judges with more than 15 years of experience were affected by a prosecutor’s sentencing demand in a rape indictment.27 Their findings indicate that legal 23. Helm et al., supra note 4, 672. 24. How Judges Decide Cases, supra note 21, at 7. 25. Chris Guthrie, Jeffrey J. Rachlinski, & Andrew J. Wistrich, Inside the Judicial Mind, 86 CORNELL L. REV. 777, 787 (2007) [hereinafter Judicial Mind]. 26. John Malouff & Nicola S. Schutte, Shaping Juror Attitudes: Effects of Requesting Different Damage Amounts in Personal Injury Trials, 129 THE JOURNAL OF SOCIAL PSYCHOLOGY. 491, 495 (1989) (showing that requests for damages appeared to drastically alter the decisions of the mock jurors; when the plaintiff’s lawyer demanded $300,000, the amount awarded was $188,462 on average, whereas a request for $500,000 solicited an average award of $282,868). 27. Thomas Mussweiler, Birte Englich, & Fritz Strack, 10 Anchoring Effect, 183, 183 (2010), http://kiju.uni-koeln.de/data/dppsenglich/File/PDFSStudien/PsychPr_04.pdf (describ-

Effects of Cognitive Biases on Discovery

23

decisionmaking is susceptible to the anchoring bias. Moreover, Mussweiler et al. posit that an anchor has a unique level of “temporal robustness” that in some cases last up to one week. Furthermore, they state that even conscious efforts to negate the influences of the anchoring bias does not frequently alter results, implying that it is an extremely complex bias that is often problematic to restrain.28 Arbitrators influenced by the anchoring bias would allow superfluous requests for evidence, resulting in a lengthy and costly discovery procedure. The amount of discovery agreed upon by both parties prior to the trial could be perceived as a qualitative anchor; arbitrators would consistently refer to this set level of discovery when assessing new requests for the production of documents and other similar evidentiary information. The ability of litigants to employ discovery as an agitation strategy often causes them to forego a potential settlement. Without a determined relevant anchor, arbitrators might instead be susceptible to other various irrelevant anchors. Arbitrators might be inclined to associate other non-discovery contractual features, such as the procedural timeline or the place and conduct of the arbitration, with the amount of discovery they should allow during the trial. Considering that these other factors tend to emphasize the choice of litigants and their extensive freedom, such an anchor might lead the tribunal to implicitly give precedence to the desires of parties when evaluating appeals for evidence, resulting in unnecessarily protracted proceedings. B. Representativeness Heuristic The representativeness heuristic and its resultant cognitive biases–the inverse and base rate fallacies in particular–actively threaten the ability of arbitrators to determine a suitable amount of discovery. The representativeness heuristic is a mental shortcut that customarily prompts people to assess new evidence in relation to pre-existent categories in their minds. When making decisions, additional pieces of information are evaluated on the extent to which they represent a specific category.29 If the information is illustrative of the category, individuals are inclined to perceive the evidence as an outcome of the category itself.30 Two commonly ensuing biases from the representativeness heuristic are the base rate fallacy and the inverse fallacy. ing an experiment wherein judges delivered prison sentences that were on average 8 months longer when the demand was for 34 months rather than for 12 month). 28. Id. at 186. 29. Judicial Mind, supra note 25, 805. 30. Id.

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A large body of evidence has shown that judges and arbitrators are susceptible to making judgments while relying on the representativeness heuristic. The base rate fallacy arises when people unduly ignore initial base rates in preference of new information that is archetypal of a specific pre-envisioned category.31 In an attempt to a replace a mentally challenging problem with a straightforward one, individuals make unwarranted cause-and-effect conclusions about category and evidence relationships without appropriately acknowledging the prior probability of the evidence occurring naturally.32 For instance, if a question demands an intricate level of statistical analysis, non-experts might instead subconsciously attempt to solve the problem by consulting past anecdotal experiences, entirely discounting true base rates.33 As explained by Guthrie et al., the inverse fallacy occurs when the probability of an incident occurring given the evidence presented is judged to be identical or similar to the probability of the evidence existing given the incident occurring.34 When 159 magistrate judges were tested on an example comparable to the one described above, approximately the same number of judges committed the inverse fallacy as those who did not, suggesting that a large proportion of legal decisionmakers are not immune to making erroneous conclusions based on the representativeness heuristics.35 In a similar manner, the extent of discovery permitted by arbitrators could be influenced by the representativeness heuristic. Drahozal alludes to the permissibility of character evidence, suggesting that judges and arbitrators are vulnerable to disregarding base rates and over-emphasizing a defendant’s unpleasant temperament and behavior.36 A similar concern is voiced by Elgueta, who claims that the tribunal’s analysis of how much discovery should be allowed in a trial is inherently predisposed to alteration by statistically irregular yet “salient” memories.37 Elgueta contends that arbitrators are predisposed to remember instances in which other members of the tribunal were accused of misconduct, causing the arbitra31. Christopher R. Drahozal, A Behavioral Analysis of Private Judging, 65 LAW & CONTEMP. PROBS. 105, 111 (2004). 32. Id. 33. Christine Jolls & Cass R. Sunstein, The Law of Implicit Bias, CAL. L. REV. 969, 974 (2006) (“[P]eople might resolve a question of probability not by investigating statistics, but by asking whether a relevant incident”) 34. Judicial Mind, supra note 25, 807. 35. Id. 809 (illustrating their experiment wherein participants were presented res ipsa loquitur problem created around a famous torts case named Byrne vs. Boadle. After reading the situation in which the plaintiff was hit by a barrel while walking through a warehouse, the participants were instructed to state the probability that barrel fell due to negligence of a warehouse worker. Results indicated that 40.3% committed the inverse fallacy). 36. Drahozal, supra note 31, 112. 37. Elgueta, supra note 2, 186.

Effects of Cognitive Biases on Discovery

25

tor to overestimate the likelihood of such an indictment happening again.38 Ignorance of base rates might lead the arbitrators to permit more discovery in an attempt to ensure that a wider representation of the truth is available, hence giving his or her appointing party the right of due process. However, because these new assessments are grounded in circumstantial and anecdotal examples rather than actual statistical probability, a wider scope of discovery would be unwarranted and would add to a protracted arbitral process. C. Confirmation Bias The confirmation bias could lead to arbitrators authorizing disproportionate amounts of discovery, undermining the cost-effectiveness and timesensitivity of the discovery process. The confirmation bias is defined as individuals’ tendency to actively pursue information that buttresses their preconceived beliefs, instead of using new information to logically challenge these preconceived beliefs.39 Consequently, individuals hold on to beliefs that should have been revised or discarded in light of new information.40 One explanation for the confirmation bias is that an intensive evaluation of new information requires odious System II-type processing, whereas a disregard of such evidence and the acceptance of assenting material requires only an effortless System I-type processing.41 Recent studies have demonstrated that arbitrators are negatively affected by the confirmation bias, causing them to make decisions predicated on initial opinions and theories instead of an objective analysis of the evidence. Sussman finds that only 12.4% of arbitrators do not form a preliminary opinion on the case early in the proceedings and that the vast majority (87.6%) of the arbitrators do indeed assemble a belief prior to hearing the pretrial submissions.42 Furthermore, Sussman’s results suggested that arbitrators might not be cognizant of their propensity to protect predetermined beliefs, and might overestimate their capacity to 38. Id. 39. Helm et al., supra note 4, 681. 40. Id. 41. Id. 682. 42. Edna Sussman, Arbitrator Decision Making: Unconscious Psychological Influences and What You Can Do About Them, 24 AM. REV. INT’L ARB. 487, 500 (2013) (presenting arbitrators with questions on how frequently they alter their conviction both during the arbitral process in general and when writing an award. The responses revealed that only 8% of all tested arbitrators changed their mind about a decision more than 50% of the time. Likewise, when writing an award, only 0.3% of the arbitrators ignored their initially formed opinion).

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remain open-minded to dissenting evidence during the judicial process.43 Similarly, Joseph Rand warns against the temptation for legal decisionmakers and counsel to succumb to what he describes as “tunnel vision,” wherein a parochial outlook can hinder the pursuit of the whole truth.44 Helm et al. used empirical evidence to test arbitrators’ abilities to restrict the confirmation bias and found that the confirmatory bias strongly influenced the decisionmaking capabilities of the arbitrators.45 The confirmation bias similarly affects of arbitrators in the taking of evidence, and compromises their role as evidentiary gatekeepers. Indeed, Helm et al. find that arbitrators were inclined to rely on too many files — 45% of those who answered incorrectly requested more than 2 files, but only 23% sought to open less than 2.46 Helm et al. posit that the excessive reliance on evidence, even when it proves redundant, potentially restricts arbitrators from assuming their role as competent evidentiary gatekeepers.47 Certainly, if arbitrators preserve their preliminary judgments throughout the trial, as argued by Sussman, then a broad scope of discovery and a large quantity of exploitable evidence would increase the probability of their preconceived beliefs being confirmed. Elgueta assesses how the propensity for counsel and parties to invest in “confirmatory mental searches” often causes them to interpret additional information in a self-serving way, thus reinforcing their original viewpoints rather than rationally amending them.48 If parties inevitably construe evidence to es43. Id (revealing how following questions on the survey asked the arbitrators how frequently they alter their conviction both during the arbitral process in general and when writing an award. The responses revealed that only 8% of all tested arbitrators changed their mind about a decision more than 50% of the time. Likewise, when writing an award, only 0.3% of the arbitrators ignored their initially formed opinion). 44. Joseph W. Rand, Understanding Why Good Lawyers Go Bad: Using Case Studies in Teaching Cognitive Bias in Legal-Decision Making, 9 CLINICAL L. REV. 731, 748 (2003). 45. Helm et al., supra note 4, 684. (modifying the Wason card selection task to more overtly represent a potential legal case that might be found in an arbitration setting. In the modified version, the arbitrators were told that a woman was suing an employer on the basis that “male managers never promote female employees to the position of software engineer.” After being told that the employer refused to disclose the records of four employees promoted to software engineer, the arbitrators were instructed to decide which of the four files needed to be opened to determine the legitimacy of the statement. File A stated that a male manager promoted an unknown-gendered employee, whereas a female manager promoted the unknown-gendered employee in File B. Furthermore, the other two files noted that an unknown-gendered manager promoted a male employee in File C and a female employee in File D. Only 19% of the arbitrators selected the two correct files, which were A and D. File A would be required to falsify the claim if the employee was female, whereas File D would be necessary to falsify the statement if the employer was male). 46. Id. 685. 47. Id. 48. Elgueta, supra note 2, 179.

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pouse only their arguments, then the sanctioning of more and more documents would become futile, operating solely as a way to lengthen proceedings. D. Sunk-Cost Fallacy The sunk-cost bias occurs when individuals continue to devote time and money to a losing account solely because they had previously committed a significant investment.49 Behavioral economists would argue that a rational decisionmaker should disregard earlier mistakes entirely when determining the potential to adopt new costs, since the very definition of a sunk-cost is one that cannot be reversed or worsened by a future decision.50 Even so, individuals tend to attach disproportionate significance to these investments and thus find it difficult to sacrifice them, regardless of how minute the loss may be. A large body of empirical research has suggested that even well-educated, experienced, and erudite individuals are susceptible to the effects of the sunk-cost fallacy, causing them to make ill-advised emotive decisions based on previously relinquished losses. Jolls et al. tested the fallacy using the ultimatum game, and subsequently tested groups of college students with a sunk-cost version of the game. Half the students were instructed to momentarily forego a sunk-cost of $5 while half were not, but then all were asked to write down both their proposition as the proposer and the smallest amount they would accept as the responder. Students were informed that a sum of $10 was to be divided between them and the other hypothetical player. The researchers found that the students who believed they lost the $5 at the start of the game were willing to agree to a much larger amount than those students who had not been influenced by a sunk-cost, contrary to the neoclassical economics assumption of rationality.51 In explaining these findings, Jolls et al. concluded that the role of the five forgone dollars did indeed function as a sunk-cost, causing the participants to exhibit a sense of “entitlement� towards it.52 The potential influence of the sunk-cost fallacy on parties in international arbitration poses a threat to the efficacy of the discovery procedure. Although international arbitration is designed to provide a cost-effective alternative to court litigation, the entire process can still require considera49. KAHNEMAN, supra note 17, 337. 50. See Robert A. Prentice & Jonathan J. Koehler, A Normality Bias in Legal Decision Making, 88 CORNELL. L. REV. 583, 604 (2003). 51. Christine Jolls, Cass R. Sunstein, & Richard Thaler, A Behavioral Approach to Law and Economics, 50 STAN. L. REV. 1471, 1491 (1998). 52. Id.

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ble expenditure by parties. The sunk-cost fallacy in this instance, might explain the tendency of parties and lawyers to persist in requesting evidence. Initial investments contributed by each party, which generally continues to increase as the proceedings are drawn out through excessive discovery practices, could be interpreted as the sunk cost in the arbitral setting. Instead of disregarding these original investments and adhering to the rational-choice theory, litigants might unwarrantedly exploit the high level of arbitrator discretion, encouraging them to permit a wide scope of discovery and therefore extending the proceedings.

III.

METHODS OF

RESTRICTING THE INFLUENCE COGNITIVE BIASES

OF

Cognitive biases have the potential to negatively influence the decisionmaking capabilities of arbitrators, parties, and counsel, resulting in an ineffective and protracted taking of evidence. In part, restricting the influence of heuristics and mitigating the effects of cognitive biases would help restore the efficacy of the discovery process. This section will examine several bias mitigation approaches that aim to constrain the influences of biases on legal decisionmakers in a direct manner. In addition, an institutional limitation of party autonomy could serve as an indirect method of restricting the influence of cognitive biases. A. The Case for Including Bias Mitigation Safeguards One potential bias restriction method is the cognizance approach. Legal scholar, Lucy Reed, argues that arbitrators should wholeheartedly assume their role as evidentiary gatekeepers, and refrain from their predisposition to view causation issues as predictable in hindsight.53 In doing so, Reed stresses the importance for arbitrators to view their decisionmaking capabilities as liable to extraneous, latent factors. Similarly, Guthrie et al. suggest that the judicial establishment has the responsibility to invest in any type of training that might limit the use of instinctive processes, and instead promote deliberative ones.54 While an educational approach to improving the decisionmaking capabilities of judges would be harmless, and potentially even beneficial in counteracting some biases, one major drawback is that other identified biases that seem to persist through

53. Lucy Reed, The 2013 Hong Kong International Arbitration Centre Kaplan Lecture – Arbitral Decision-making: Art, Science, or Sport? 30 J. INTL. ARB. 85, 90 (2013). 54. See How Judges Decide Cases, supra note 21, at 38.

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awareness would likely remain unaffected.55 For this reason, it is important to consider the cognizance approach as a promising starting point rather than the entire solution with regards to cognitive biases.56 In addition, the bottom-up approach relies on motivation as a way to discourage overreliance on intuitive heuristic processes.57 The model states that judges can be stimulated to dispense impartial decisions through the “fear of invalidity, a feeling of accountability for decisions taken, and/or a desire to be accurate.”58 The theory also suggests that if an arbitrator is given enough time to properly contemplate and examine all pieces of information presented, the bottom-up motivation technique would likely result in more deliberative processes by arbitrators. Likewise, Reed argues that offering arbitrators more time to reflect on evidence before having to determine an award.59 However, one foreseeable problem with an endorsement of a lengthened deliberation period for arbitrators is that it is likely to meet disapproval as a proponent of an expeditious judicial process — another original principle of the arbitral establishment. Nonetheless, as Sussman argues, arbitrators are obliged to analyze all characteristics of a case in an objective manner, unencumbered by potential fundamental errors in intuitive deliberation.60 Several scholars have argued for the provision of scripts and checklists to arbitrators, in order to encourage the utilization of deliberative cognitive processes. Guthrie et al. posit that an arbitrator who repeatedly consults a checklist during various stages of the arbitral process is far less likely to rely on instinctual processes.61 A similar system exists in court litigation, where “multifactor or balancing tests” have become a staple.62 Although they acknowledge the “mechanical jurisprudence” that can result from such multifactor tests, the academics assert that such tests do indeed control for potential cognitive biases by reminding decisionmakers to impartially cogitate all possible pertinent evidence and information disseminated during earlier proceedings.63

55. 56. 57. 58. 59. 60. 61. 62. 63.

Mussweiler et al., supra note 27, 186. How Judges Decide Cases, supra note 21, at 38. Sussman, supra note 45, 506. Id. Reed, supra note 57, 94. Sussman, supra note 45, 506. How Judges Decide Cases, supra note 21, at 40. Id. 41. Id.

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B. Limiting Party Autonomy The unwarranted prioritization of party autonomy in the discovery process has engendered serious issues that threaten the institution’s efficacy. In this sense, restrictions on party autonomy would help mitigate the influence of cognitive biases. Elgueta maintains that it is the responsibility of the arbitral community to collectively pursue procedural guidelines that seek to diminish the excessive level of arbitrator discretion given to the tribunal.64 He insists that in order to form a cost-effective discovery system, the tribunal should be prohibited from sanctioning any production of documents that is not crucial to the potential verdict of the case. Elgueta advocates the prevention of any evidentiary requests simply labeled “relevant and material,” as is currently permissible in arbitral guidelines.65 However, he only approves such measures if the parties elect to relinquish their right to a pretrial agreement of procedural dealings.66 Indeed, if arbitrators are restrained by stricter guidelines, one might expect their propensity to be affected by sunk-costs, anchors, or confirmation biases to result in a limited amount of allowed discovery. This approach, which Elgueta terms “libertarian-paternalism,” strives to preserve some level of party autonomy by acknowledging the desires of the parties, yet acts as a disciplinary and advisory system that helps guide their choices to maximize efficiency.67

IV.

CONCLUSION

A reasonable limitation on party autonomy would be justifiable in an effort to restore the efficacy of international arbitration. This article contends that an active effort to mitigate the potentially harmful influences of cognitive biases is warranted, and argues that in this regard, a limitation on party autonomy is beneficial. While constraints on party autonomy would be a valuable initial technique to restraining biases, bias mitigation techniques serve to directly limit the influence of cognitive biases, and should therefore be considered in the reevaluation of arbitral guidelines. The cognizance approach is promising, as it would require arbitrators to refrain from their predisposition to view causation issues as predictable in hindsight. Likewise, the bottom-up approach posits that legal decisionmakers can be motivated to rely on deliberative reasoning to safeguard against their reliance on heuristics. A third bias mitigation technique is the provi64. 65. 66. 67.

Elgueta, supra note 2, 188. Id. See Id. Id. 189.

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sion of scripts and checklists to encourage the use of deliberative cognitive processes. In part, restricting the influence of heuristics and mitigating the effects of cognitive biases would help restore the efficacy of the discovery process. Such an approach would be libertarian paternal in the sense that it would primarily serve as a disciplinary and advisory system that helps guide the decisionmaking of arbitrators, counsel, and parties in international arbitration to maximize efficiency.

RACIAL DISCRIMINATION AND PEREMPTORY CHALLENGES IN THE POST-BATSON ERA

Sareen Ishanyan*

The peremptory challenge, a longstanding mechanism designed to protect the accused during jury selection by allowing attorneys to strike potential jurors without cause, has become a conduit for discrimination. A clear racial dimension has emerged in the past several decades, despite repeated attempts to mitigate the situation. In 1986, the Supreme Court ruled in Batson v. Kentucky that the consideration of race in this process is unconstitutional; the problem, however, remains unresolved. This is clearly evidenced by the ease with which one can conceal their true motivations behind the peremptory challenges they may make, the behavioral psychological phenomena known as implicit bias, and the staggeringly disproportional rates with which African Americans are struck from juries via peremptory challenges. Thus, in this paper, I will argue that in order to more effectively uproot racial discrimination within the United States, it is necessary to bring an end to the practice of peremptory challenges.

I.

INTRODUCTION

The trial phase known as voir dire is designed to ensure an impartial jury.1 This process is a dialogue between potential jurors, prosecution attorneys, counsel, and the judge.2 Voir dire is a fundamental cornerstone of the American judicial system. In recent decades, however, this purportedly earnest debate has often transformed from a rationalized legal discussion to a visual inspection by attorneys for certain traits—race included.

* Sareen Ishanyan is a second-year studying history and political science. She plans on attending law school after graduation. Editor: Axel Sarkissian is a second-year studying Political Science, Public Affairs, and Urban & Regional Planning. He is interested in attending law school after graduation. 1. Mark Drummond, Voir Dire: Don’t Let the Judge Cut You Out, LITIG. (Spring 2012), https://apps.americanbar.org/litigation/litigationnews/articles-print/050412-practicepoints-spring12.html. 2. William Wilhoit, The Voir Dire Process, GPSOLO L. TRENDS & NEWS (Feb 2005), http://www.americanbar.org/content/newsletter/publications/law_trends_news_practice_area _e_newsletter_home/voirdireprocess.html.

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Voir dire begins with a random pool of potential jurors, called a venire.3 During the ensuing process, attorneys may strike venire-members for cause—in other words, if they have a legitimate rationale to do so—or through peremptory challenges, which allow potential jurors to be eliminated for primarily undisclosed reasons. While dismissing for cause requires certain criteria to be met by attorneys, peremptory challenges often allow for capricious dismissal—even though they theoretically require certain standards to be met. Historically, the peremptory challenge has served as a way to protect defendants’ rights. The practice was introduced in English courts during the Late Middle Ages by Parliament to reduce the Crown’s advantage.4 In the United States, some states—such as Virginia and New York—originally extended the use of peremptory challenges only to the defendant, in recognition of the practice’s initial intent.5 However, this paradigm began to change with the enactment of Reconstruction legislation. The landmark case regarding the practice of peremptory challenge is the aforementioned Batson vs. Kentucky.6 James Batson, an African American man accused of theft in Louisville, Kentucky, was put on trial in 1982. Using the peremptory challenge, the prosecution struck all potential African American jurors during the voir dire process. In his appeal, Batson’s attorney claimed that this was both a violation of Batson’s Sixth Amendment right to an impartial jury and the Fourteenth Amendment’s Equal Protection Clause.7 In 1986, the case reached the Supreme Court, which ruled that peremptory challenges based on racial considerations are a violation of the equal protections granted by the Fourteenth Amendment.8 However, the Court went on to claim that in the event of a Batson challenge—that is, when a defendant calls into question the motivations behind the peremptory challenges of the prosecution—peremptory challenge is allowable as long as a non-racial reason is provided.9 Batson did not solve the problem of the peremptory challenge. The ambiguous nature of this procedure remains at the fore of legal and racial discussions in the contemporary United States. Here, I argue that peremptory challenges are both ineffectual in protecting the defendant and detri3. How Courts Work, American Bar Association, https://www.americanbar.org/ groups/public_education/resources/law_related_education_network/how_courts_work/jury select.html (last visited Mar. 3, 2017). 4. Vivien T. Montz & Craig L. Montz, The Peremptory Challenge: Should It Still Exist? An Examination of Federal and Florida Law, 54 U. MIAMI L. REV. 451 455 (2000). 5. Id. 6. Batson v. Kentucky, 476 U.S. 79 (1986). 7. Batson 476 U.S. at 83. 8. Batson 476 U.S. at 100. 9. Id. at 80.

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mental to the cause of justice. Thus, I contend that peremptory challenge should be abolished within the American judicial system. I will begin with a history of racial discrimination of African Americans within the courtroom and an analysis of the Batson ruling. I will then turn my attention to additional perspectives offered on this matter by Raymond Brown and Brown et al, who assert the importance of using peremptory challenge to champion defendants’ rights. Moreover, I will present Justice Marshall’s determination that peremptory challenge should be wholly eradicated to more effectively thwart racial discrimination within the courts. I will also examine the flaws implicit in the so-called Batson challenge, as exemplified by the recently litigated Foster v. Chatman.10 Additionally, I will introduce the perspective of behavioral psychology, which argues that racial considerations unconsciously infiltrate the courtroom. Finally, I will discuss several studies which reveal the disproportional rates at which African American venire members are peremptorily challenged and will shed light on possible consequences involving post-Batson racial discrimination in the courtroom.

II.

HISTORICAL CONTEXT

AND

BATSON’S FINE PRINT

A. A Brief History of the Civil War and Reconstruction Periods Race and jury selection have long been entangled in American history. Following the Civil War, Reconstruction was an attempt to improve the social, economic, and legal situation of African Americans. The ratification of the Thirteenth Amendment, which abolished slavery, was the most important step forward. The Fourteenth Amendment, meanwhile, guaranteed due process and equal protections for all Americans. Finally, the Fifteenth Amendment theoretically extended the franchise to African Americans. The Civil Rights Act of 1875, meanwhile, was enacted by Congress to protect the rights of African Americans to public accommodations and fair jury trials. However, the Supreme Court found the act unconstitutional in 1883, ruling that it was a violation of the Thirteenth and Fourteenth Amendments. The end of Reconstruction in 1877 saw the withdrawal of the federal troops and resources that had enforced the word and spirit of these amendments. Southern legislatures quickly moved to enact Jim Crow laws, once again disenfranchising African Americans and ushering in a new era that looked starkly similar to that which was present before the Civil War. Racial discrimination within the courtroom became a crucial issue in the American judicial system in the decades following. 10.

Foster v. Chatman, No. 14–8349, 2016 U.S. LEXIS 3486, at *1.

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B. Legal History of Peremptory Challenges and Race in the United States In writing about racial discrimination in this post-Civil War South, Benno Schmidt argued that “the systematic exclusion of black men from Southern juries was about as plain as any legal discrimination could be short of proclamation in state statutes or confession by state officials.”11 Despite the intense institutional discrimination, African Americans continued to fight for their rights under the Fourteenth Amendment—equality in the courtroom. For instance, an important precursor to Batson was Strauder v. West Virginia (1880).12 This case held that while a defendant does not necessarily have the right to trial by a jury that includes her race, she cannot be tried before a jury in which her race is purposefully excluded. Another important case that preceded 1986’s Batson was Swain v. Alabama (1965).13 Here, defendant Robert Swain argued that, while more than a quarter of his home county of Talladega was African American, only ten to fifteen percent of the venires for all juries were African American. Indeed, Swain revealed that since 1950, not a single African American had served on a Talladega County petit jury (a trial jury were jurors decide whether the defendant is guilty of a crime or injured the plaintiff).14 However, the Court found that “the overall percentage disparity has been small and reflects no studied attempt to include or exclude a specified number of [African Americans].”15 Additionally, in describing the purpose or function of peremptory challenge, the Court held that “it is no less frequently exercised on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty.”16 In other words, Swain explicitly accepted the idea that, in the United States, peremptory challenge allowed attorneys to make decisions based on race without outwardly admitting to such discrimination. This interpretation of peremptory challenge would change with Batson. It should be noted, however, that the modern connotation of peremptory challenge is not entirely dissociated from this definition. Further, the Court also held that when claiming purposeful dis11. Promise 12. 13. 14. 15. 16.

See Benno C. Schmidt Jr, Juries, Jurisdiction, and Race Discrimination: The Lost of Strauder v. West Virginia, 61 TEX. L. REV. 1401, 1406 (1983). Strauder v. West Virginia, 100 U.S. 303 (1880). Swain v. Alabama, 380 U.S. 202 (1965). Id. at 202-06. Id. at 209. Swain, 380 U.S. at 220.

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crimination, one must demonstrate “systematic”17 or categorical exclusion. In other words, Swain placed a heavy burden of proof on the petitioner. Ultimately, Batson would ease this requirement. C. Batson v. Kentucky In 1986, the issues that surrounded Strauder, Swain, and several other cases across the United States came together in the landmark case Batson v. Kentucky. Justice Powell, writing the majority opinion, held that racial discrimination in peremptory challenge violates the equal protections granted to the defendant and the potential juror by the Fourteenth Amendment18 and also “undermines public confidence in the fairness of our system of justice.”19 The Batson ruling also overturned a component of Swain that placed an onerous burden of proof20 on the petitioner. Instead, Batson held that a defendant can make a prima facie case for racial discrimination using the facts from the jury selection.21 There are four steps involved in this process: first, a defendant must show that they belong to a “cognizable racial group.”22 Next, the defendant needs to demonstrate that the prosecutor used peremptory challenge to remove members of the defendant’s race from the jury pool. Third, the defendant must reach an “inference”23 wherein the prosecutor employed peremptory challenge to strike potential jurors on the basis of their race. Once these steps have been taken and the defendant has made a prima facie case, the burden is then placed on the prosecution to provide a race-neutral reason for excluding a venire-member.24 In James Batson’s case, because the trial judge did not ask the prosecution to explain their removal of all black jurors through peremptory challenge following the defendant’s objection, the case was remanded.25 Thus, the Batson ruling solidified the notion that racial considerations in the practice of peremptory challenge violate the Fourteenth Amendment’s Equal Protection clause. Additionally, the Court delineated that a satisfactory rebuttal amounts to providing a race-neutral reason for striking a venire-member. Today, this component of the ruling functions as what can only be called a loophole for attorneys to mask potentially racial 17. 18. 19. 20. 21. 22. 23. 24. 25.

Id. at 226. Batson, 476 U.S. at 100. Id. at 80. Swain, 380 U.S. at 209. See Batson, 380 U.S. at 80. Id., at 80. Batson, 476 U.S. at 80. See Id. at 80. Batson, 476 U.S. at 81.

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reasons for striking a juror with race-neutral explanations. This has generated considerable controversy surrounding the Batson decision and the practice of peremptory challenge.

III.

ADDITIONAL PERSPECTIVES

ON

PREEMPTORY CHALLENGE

A. Peremptory Challenge: The Protector of the Social Pariah Raymond Brown’s26 perspective champions peremptory challenge as benefitting defendants—who he deems the natural “pariahs” of society. In other words, Brown believes that the defendant needs peremptory challenge to make herself more amiable, as many venire-members will have preconceived notions of the accused simply because they are on trial. The notion of “innocent until proven guilty” does little to decrease potential jurors’ negative proclivities. In effect, Brown argues that peremptory challenges are necessary to give defendants a fair trial. In one example, Brown cites Bergen County, New Jersey.27 He argues that an African American driving on the turnpike here is more likely to be pulled over than a white driver. Moreover, if a trial were to occur, Brown writes, it would occur in a county with a notoriously low African American population. In order to protect a potential African American defendant from people “alien in culture and ideas,”28 the peremptory challenge is a necessary courtroom tool. Thus, Brown sees peremptory challenges as a check on racial prejudice, rather than a catalyst. Interestingly, Brown acknowledges how racial stereotyping can play a role in peremptory challenges. He argues that, because trials are so rushed, attorneys are forced to make peremptory challenge strikes during voir dire by looking at racial stereotypes.29 Brown proposes that the voir dire process be lengthened so that jurors can provide more information about their lives, their upbringing, and so on. In Brown’s view, attorneys on both sides would no longer rely principally on racial cues and would make decisions based on the unique nature of each individual venire-person. Brown’s call to lengthen the voire dire process appears reasonable. However, as noted by Brown himself,30 jury duty is loathed by most Americans. Lengthening the selection process is likely to be met with aversion 26. Raymond Brown, Peremptory Challenges as a Shield for the Pariah, 31 AM. CRIM. L. REV. 1203, 1212 (1994), http://heinonline.org/HOL/Page?handle=hein.journals/amcrimlr 31&collection=journals&id=1219&startid=1219&endid=1228. 27. See BROWN, supra note 28, at 1209. 28. Id. 29. Id. at 1210. 30. See Id. at 1206.

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by potential jurors, which may result in more strikes anyway. Additionally, increasing the amount of time allotted to voir dire in no way guarantees that racial discrimination will be excluded from the process. Behavioral psychologists argue that implicit bias would not be remedied by lengthened voir dire.31 Thus, Brown’s plan appears to result in increased public disaffection and insufficient impact in ameliorating racial discrimination in jury selection. B. An End to Prosecutorial Peremptory Challenges Another potential solution to the Batson problem involves reserving peremptory challenges for defendants. Brown, McGuire, and Winters32 give a good overview of this school of thought. The authors cite the long history of peremptory challenge wherein the practice traditionally functioned to protect the rights of the accused.33 It is important to note that this article was authored before the Batson decision; thus, the authors cite the heavy burden of proof placed on defendants as per Swain v. Alabama 34 when making peremptory challenges. They also make note of multiple instances where the State employed peremptory challenge to remove African Americans from juries and created all-white juries. While this method may protect minority defendants, it does not remove the possibility of discrimination in voire dire—nothing precludes the defense from applying the same standards in a post-Batson world. This issue was highlighted in the 1992 case Georgia v. McCollum, 35 in which a white defendant was charged with assaulting two African Americans. Although Georgia state courts denied the State’s request to bar the defendant from employing racial considerations in their peremptory challenges, the Supreme Court extended the Batson 36 paradigm to the defendant. In the Opinion of the Court, Justice Blackmun referred to a related case when claiming that, “if race stereotypes are the price to pay for acceptance of a jury panel as fair,” then such a “price is too high to meet the standard of the Constitution.” Blackmun continued, “it is an affront to justice to argue that a fair trial includes the right to discriminate against a group of 31. Cf. Caren M. Morrison, Negotiating Peremptory Challenges, 104 J. CRIM. L. & CRIMINOLOGY 1, 3 (2014), http://scholarlycommons.law.northwestern.edu/jclc/vol104/iss1/1. 32. Frederick L. Brown; Frank T. McGuire; Mary S. Winters, The Peremptory Challenge as a Manipulative Device in Criminal Trials: Traditional Use or Abuse, 14 NEW ENG. L. REV. 192, 236 (1978). 33. Id. at 193. 34. See 380 U.S. 202. 35. 505 U.S. 42. 36. See 476 U.S. 79.

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citizens based on race.”37 In other words, allowing the defense to be racially discriminatory is a perversion of justice. It is difficult to see a reason that would justify otherwise; the argument put forward by Brown et al. appears to do little more than mitigate the issue of racial discrimination. C. Justice Marshall: Abolition of the Peremptory Challenge In his concurring opinion in Batson v. Kentucky,38 Thurgood Marshall argued for the abolition of peremptory challenge in its entirety. He noted that removing peremptory challenges for both parties would not be unconstitutional,39 and that merely granting defendants the chance to challenge peremptory strikes believed to be driven by racial considerations “will not end the illegitimate use of the peremptory challenge.”40 In other words, Marshall envisaged the flaws of the newly drafted Batson challenge—that is, he anticipated cases like Foster v. Chatman.41 Additionally, he argued that the idea of a prima facie case to prove discrimination, as suggested by the majority in Batson, would require defendants to prove a remarkable level of discrimination. In his words, “prosecutors are left free to discriminate against blacks in jury selection provided that they hold that discrimination to an ‘acceptable’ level.”42 Justice Marshall concluded his concurrence with the assertion that the peremptory challenge must be done away with if the Court has any intention of expelling discrimination from the courtroom and, more specifically, voir dire. 43 Thus, Justice Marshall indicates that allowing peremptory challenges to persist, whether checked by the requirements of the Batson challenge or restricted only to the defense, would only marginally ease the problem of racial discrimination entering the courtroom. Therefore, he argues that it is only through a complete abolition of peremptory challenge that the United States can make meaningful strides toward bringing an end to institutionalized racial discrimination.

37. 38. 39. 40. 41. 42. 43.

Georgia, 476 U.S. at 43. 476 U.S. 79, 104 (1986) (Marshall, J., concurring). Id. at 108. Id. at 105. Foster v. Chatman, No. 14–8349, 2016 U.S. LEXIS 3486, at *1. Batson, 476 U.S. 79 at 105. Batson, 476 U.S. 79 at 105.

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UCLA UNDERGRADUATE LAW JOURNAL Volume 16 PREEMPTORY CHALLENGES

OF THE

POST-BATSON ERA

A. A Race-Neutral Reason and Loophole Excuses In theory, the so-called Batson challenge is supposed to provide an avenue for disputing peremptory challenges if an attorney suspects that they were made with racial considerations. In reality, however, the Batson challenge merely allows for racial discrimination to be cloaked by ostensible race-neutral explanations. This is exemplified in Gamble v. State,44 where an African American defendant was put on trial for murder. When Gamble’s defense attorney cited the then-recently litigated Batson case in response to a series of peremptory challenge strikes, the judge asked the prosecution to provide a race-neutral explanation for the exclusion of all the African American venire-members. The prosecution pointed at one African American venire-member and noted that he had been discharged from the military after six years, speciously claiming that this discharge was not as honorable as one after four years. The court accepted this preposterous line of reasoning as a race-neutral explanation, and the juror was struck from the pool. This shows that, in practice, a prosecutor can meet a Batson challenge by providing any race-neutral reason. In a similar vein, a 2004 Texas District & County Attorney Association presentation entitled “Batson Basics”45 went so far as to include a section that lists accepted responses to a Batson challenge that are considered race-neutral. These include grounds as absurd as the venire-member being “self-employed as a sculptor and welder” or being observed “chewing gum” as legitimate reasons to strike the respective jurors. The ease with which one can circumvent the Batson standard demonstrates the detrimental nature of peremptory challenges and reinforces the notion that peremptory challenges should be eliminated from the United States judicial system. B. Foster v. Chatman In 2016, the Supreme Court heard Foster v. Chatman,46 which highlighted the ineffectiveness of the Batson challenge in weeding out racebased preemptory challenges. In 1987, Timothy Foster was given the death penalty for the murder of an elderly white woman.47 During the trial, Fos44. See Gamble v. State, 257 Ga. 325 (1987). 45. Karen Nelson, Batson Basics (Jul. 11, 2004) (unpublished manuscript) (available at https://www.themarshallproject.org/documents/2461886-batson-basics#.3zo6wL7hx). 46. Foster v. Chatman, No. 14–8349, 2016 U.S. LEXIS 3486, at *1. 47. Id. at *2.

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ter—an African American—was tried before an all-white jury.48 As held by Strauder 49 and reaffirmed by Batson,50 an all-white jury, if the product of random selection, is legitimate. That is, if the jury pool from which it came to be was made up of a “fair cross-section”51 of the community (in Foster, the city of Rome, Georgia—about a quarter African American) then said jury pool is permissible. When the prosecution moved to strike all four potential African American jurors, the defense raised a Batson challenge. The prosecution was prepared with purportedly race-neutral reasons: Eddie Hood was objectionable because he had asked to be excused from jury duty,52 while Angela Garrett was a problem because she had not asked to be excused from the jury.53 The court accepted these contradictory reasons, and the subsequent trial resulted in Foster being sentenced to death.54 Following a denied motion for a new trial, Foster filed a habeas corpus challenge in Georgia.55 Foster’s attorneys presented a page of the prosecution’s notes drafted during voir dire proceedings, which highlighted the names of all African Americans venire-members and designated them with the letter “B” and number from one to three.56 According to one prosecution attorney, the purpose of the numbers was to indicate which juror would likely be the most sympathetic towards the defendant, and would thus be prioritized for removal. Ultimately, the case reached the Supreme Court, which ruled in favor of Foster by holding that the defense sufficiently proved “purposeful discrimination”57 by the prosecution in regards to two African American venire-members who were struck. Foster thus appears to be a perfect example of racially-motivated peremptory challenges being insufficiently checked by the Batson ruling. C. Implicit Bias: The Invisible Agent In addition to the problematic nature of race-neutral reasons, implicit bias—a term originating from behavioral psychology—adds another di48. Id. at *3. 49. Strauder, 100 U.S. 303. 50. Batson, 476 U.S. 79. 51. See Taylor v. Louisiana 419 U.S. 522 (1975). 52. Foster v. Chatman, No. 14–8349, 2016 U.S. LEXIS 3486, at *17. 53. Id. at *12. 54. Id. at *3. 55. Foster v. Chatman, No. 14–8349, 2016 U.S. LEXIS 3486, at *3. 56. Id. at *3-4. 57. Foster v. Chatman, No. 14–8349, 2016 U.S. LEXIS 3486, at *9 (citing Snyder v Louisiana, 552 U. S. 476 (2008)).

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mension to peremptory challenges which cannot be ignored. Caren Myers Morrison, writing in the Journal on Criminal Law and Criminology, 58 argues that the Batson ruling assumes three things:59 first, that racial factors can be entirely excluded from voir dire; second, that attorneys are conscious of their reasons for striking jurors and, if challenged, will honestly provide their reasoning; and third, that judges can discern if an attorney is lying when providing a justification for striking a venire-member via peremptory challenge. However, Morrison argues that modern cognitive psychology does not necessarily support these claims. Rather, psychological research lends support to the argument that, regardless of an attorney’s morality and ethics, disentangling racial considerations from peremptory challenge is not possible because humans harbor implicit biases that subconsciously guide their decisions. For example, Johnson, Whitestone, Jackson, and Gatto60 conducted a study which revealed that when inadmissible evidence is presented in a “simulated criminal trial,”61 it is more likely to negatively affect an African American defendant than a white one. Moreover, because the self-reports of the participants revealed no intentional use of race in their considerations, it is suggested that implicit bias is an underlying factor in racial considerations and the law.62 Additionally, in the Boston University Law Review, Antony Page contended that the “[use of] race or sex for the initial categorization is likely particularly frequent in a situation like voir dire, where there is generally little beyond race and sex on which an attorney could make an initial categorization.”63 Thus, Page suggests that given the nature of voir dire—that is, it is essentially a streamlined way of getting know as much as one can about a group of people in a short period of time—individuals are inclined to rely on somatic factors such as race or sex to make decisions, even though race and sex are almost never the full story. Page also goes on to note that this reliance on stereotypes is often done unconsciously, or via implicit bias.

58.

Caren M. Morrison, Negotiating Peremptory Challenges, 104 J. CRIM. L. & CRIMI1, 3 (2014), http://scholarlycommons.law.northwestern.edu/jclc/vol104/iss1/1. 59. Id. 60. James D. Johnson, Erik Whitestone, Lee A. Jackson, & Leslie Gatto, Justice Is Still Not Colorblind: Differential Racial Effects of Exposure to Inadmissible Evidence, 21 PERSONALITY AND SOCIAL PSYCHOLOGY BULLETIN 893, (1995), http://journals.sagepub.com/doi/pdf/ 10.1177/0146167295219003. 61. Id. at 896. 62. Id. at 897. 63. Antony Page, Batson’s Blind Spot: Unconscious Stereotyping and the Peremptory Challenge, 85 B.U. L. REV. 155, 246 (2005). NOLOGY

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43

In fact, in his Batson v. Kentucky concurring dissent,64 Justice Marshall held that, “a prosecutor’s own conscious or unconscious racism may lead him easily to the conclusion that a prospective black juror is ‘sullen,’ or ‘distant,’ a characterization that would not have come to his mind if a white juror had acted identically.”65 Justice Marshall continued, writing that “a judge’s own conscious or unconscious racism may lead him to accept such an explanation as well supported.” Thus, Justice Marshall recognized the possibility of unconscious racial discrimination lurking in voir dire proceedings. On the surface, one might argue that the problem with peremptory challenges is that they are open to abuse by unscrupulous attorneys. However, we now understand that, at times, racial bias is something inherent and unconscious; allowing peremptory challenges to continue merely opens an avenue for those biases to be exercised, willingly or otherwise. D. Disproportional Strike Rates of African Americans During Peremptory Challenge Statistical findings within the courtroom further supplement the shortcomings of the post-Batson peremptory challenge. For instance, one American Civil Liberties Union (ACLU) study found that, in North Carolina, the average peremptory challenge strike rate was 50.3% for black venire-people versus 26.8% for their non-black counterparts.66 While these statistics reveal average strikes rates from cases where the defendant was not black, the ACLU found greater disparity when analyzing cases with African American defendants. Hence, in their statewide analysis of cases where an African American was put on trial, they found that “the average strike rate was 60.0% against black venire members and 23.1% against other venire members.” In a similar study also conducted in North Carolina, Mary R. Rose67 found that in a county with a high proportion of African Americans, 71% of African American venire-people were struck by the prosecution via peremptory challenges. Interestingly, this study also found that 81% of the defendant’s peremptory challenges struck white venire-members.68 This latter disproportionality of defense strikes poses a 64. See Batson, 476 U.S. at 106 (1986) (Marshall, J., concurring). 65. Batson, 476 U.S. 79 at 106 (J Marshall, concurring). 66. See Barbara O’Brien & Catherine M. Grosso, Report on Jury Selection Study, MICH. ST. U. (Sept. 29, 2011), https://www.aclu.org/files/assets/jss_revised_report_with_ap pendix_29_sept_2011.pdf. 67. Mary R. Rose, The Peremptory Challenge Accused of Race or Gender Discrimination? Some Data from One County, 23 L. & HUM. BEHAV. (1999), http://www.jstor.org/sta ble/1394554. 68. Ibid, at 698-99.

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challenge to the potential efficacy of Brown et al’s suggestion to eliminate the prosecution’s right to peremptory challenge in order to further equality within the courtroom.69 These studies cannot prove racial discrimination in the courtroom. However, they highlight the disproportionate rate by which African Americans are struck by prosecutors. Moreover, Kenneth Melilli reveals that Batson challenges used against the defense’s striking of white venire-members (enabled by Georgia v. McCollum)70 are more successful than Batson challenges against striking minority groups.71 Thus, these studies indicate that even in the post-Batson world, racial considerations persist within the courtroom. Furthermore, the cloaking capabilities of the Batson challenge’s race-neutral reason and the unconscious nature of implicit bias may serve as contributors to these disparities in strikes.

V.

POTENTIAL CONSEQUENCES

The disproportional strike rates of African Americans, the potential for implicit bias, and the fallibility of race-neutral reasons during voir dire may be correlated with adverse consequences for African Americans throughout the criminal justice system. Research conducted by Katherine Beckett72 in Washington State found that, between 1981 and 2014, jurors “were four and one half times more likely to impose a sentence of death when the defendant was black than they were in cases involving similarly situated white defendants.” Additionally, the 2003 Amnesty Report73 found that, despite African Americans making up only 12%74 of the US population, they accounted for approximately 40% of the inmates awaiting execution. There are a variety of potential causes for these disparities; it would be absurd to claim that peremptory strikes are the cause. However, it is not beyond reason to think that in providing a conduit for potential discrimination in the courtroom, peremptory challenges may have an impact. 69. See Brown et al supra note 34. 70. See 476 U.S. 79. 71. Kenneth J. Melilli, Batson in Practice: What We Have Learned About Batson and Peremptory Challenges, 71 NOTRE DAME L. REV. 447 (1999) at 465, http://scholarship.law.nd .edu/ndlr/vol71/iss3/3. 72. Katherine Beckett & Heather Evans, The Role of Race in Washington State Capital Sentencing 1981-2014 (2015) (unpublished manuscript) (available at https://soc.washington .edu/publications/role-race-washington-state-capital- sentencing-1981-2014). 73. Amnesty Int’l, United States of America: Death by Discrimination - the Continuing Role of Race in Capital Cases, AI Index: AMR 51/046/2003 (April 2003). 74. Amnesty Int’l, United States of America: Death by Discrimination - the Continuing Role of Race in Capital Cases, AI Index: AMR 51/046/2003 (April 2003).

Racial Discrimination and Peremptory Challenges VI.

45

CONCLUSION

The peremptory challenge was designed as a mechanism to protect the rights of the accused. Over time, the privilege was extended to the prosecution, and the criteria to prove nondiscrimination weakened. Today, it allows unchecked discrimination to occur during the jury selection process— jeopardizing a cornerstone element of the American judicial system. While there have been several proposals to ameliorate the impact of this practice—such as lengthening voir dire or eliminating the prosecution’s rights to peremptory challenge—none of these resolve the fundamental fact that discrimination is present in the courtroom. The only way to eradicate racial bias in the jury selection process is to abolish peremptory challenges outright. While Batson v. Kentucky 75 attempted to disentangle race and peremptory challenge, it failed to do so. Attorneys quickly discovered that any non-racial reason was sufficient, and African Americans in the post-Batson period continue to be struck at disproportional rates. It is impossible to achieve a legal system entirely devoid of racial bias. However, there is action that can be taken to mitigate the biases present. It is thus necessary to erase the practice of peremptory challenge from voir dire. In doing so, the United States will further protect the equal protections granted to each American citizen by the Fourteenth Amendment. In a more concrete sense, doing away with the peremptory challenge will permit the United States and its citizens to make progress in the centuries-long struggle to end racial discrimination, and improve the equity of the criminal justice system.

75.

See Batson, 476 U.S. at 83.

EVALUATING INTERNATIONAL EFFORTS TO COMBAT THE CRIME AGAINST HUMANITY

Eddie Kim*

The United Nations Convention against Transnational Organized Crime was held in Palermo, Italy on December of 2000. At this convention, the United Nations passed three protocols, one of which was the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. As the first international convention to explicitly acknowledge the seriousness of human trafficking, this protocol can be considered to be the beginning of the international movement to fight the crime. Upon adoption of this protocol by the United Nations, other international organizations, as well as their member states, began to recognize the graveness of the crime and structured their anti-human trafficking laws and policies accordingly. The United States, for example, started to publish the annual Trafficking in Persons Report in 2003, which includes collected data from foreign governments in regards to their effort to fight human trafficking. The purpose of this article is to evaluate the progress made by the international organizations in combating the crime since the adoption of the protocol. First, the definitions of human trafficking provided by different international and governmental organizations will be presented. Then, different ways in which international and governmental organizations are attempting to fight the crime will be discussed. Afterwards, relevant data in regards to crime reports, prosecution and conviction rates of human trafficking throughout the world will be presented and analyzed. These data will also be compared with those of the United States—one of the leading countries in fighting the crime. Finally, international conventions and legislature of U.S. in providing remedies for the victims will be explored and discussed.

I.

INTRODUCTION

In May 2015, Eric Omuro was found guilty in the Northern District of California for facilitating prostitution through a website. As part of his plea agreement, Omuro forfeited $1.28 million in cash and property, which were likely to be part of his illegal earnings. The FBI identified at least 50 * Eddie Kim is a fourth year UCLA student majoring in Business-Economics with a minor in Accounting. He plans to attend law school upon graduation. Editor: Jasmine Paek is a fourth year English major. She is a UCLA Law Fellow and a Regents Scholar. Upon graduation, she intends to pursue public interest and corporate law opportunities to gain exposure and experience in different fields of law before attending law school in the future.

46

International Efforts to Combat the Crime Against Humanity 47 juvenile victims.1 Knowing that a couple of traffickers can generate such revenue with just 50 victims, it is possible to imagine how disturbingly large the sex trafficking industry can be throughout the world. Within the sex trafficking industry, victims are forced into commercial sex trade against their will or sometimes willingly as an attempt to escape extreme poverty and seek basic necessities. Traffickers use threat, violence, and deception to make it difficult for the victims to leave the industry once they enter. As it can be seen from United States v. Omuro and Lanoce, children make up a substantial population of the victims in commercial sex trade. Another primary form of human trafficking is labor trafficking and debt bondage. Labor trafficking is forcing victims into the work force against their will through the use of violence or deception—often times, both. Debt bondage occurs when victims are forced to work to repay unreasonable amounts of debt they had incurred. Industries where such coercion is used include “mom-and-pop shops,” small businesses, big market corporations, as well as extraction camps for commodities. While some victims enter into such industries voluntarily for basic necessities, such as food, shelter, and to escape extreme poverty, they end up accruing unreasonable amount of debt in exchange. Traffickers use the debt as a means of leverage to force the victims to continue to provide underpaid or unpaid labor. The Internal Labor Organization (ILO) estimates that approximately 20.9 million people are victims of trafficking in recent years.2 This number does not include trafficking for removal of organs, forced marriage, or forced adoption—unless they lead to forced labor. The United Nations Office on Drugs and Crime (UNODC) claims that 0.3% of human trafficking crimes occur for the purpose of removal of organs; this leads to a reasonable estimation that approximately 21 million people are victims of human trafficking at any given moment.3 Of the estimated 20.9 million people, 90% or 18.7 million are trafficked by private entities around the globe. ILO also contends that approximately $150 billion in profits are generated annually from the 20.9 million victims and approximately 22% of the them are sexually exploited.4 1. See Report, U.S. Department of Justice, Attorney General’s Annual Report to Congress and Assessment of U.S. Government Activities to Combat Trafficking in Persons (2015), https://www.justice.gov/ag/file/870826/download. 2. See Protocol, United Nations, Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention Against Transnational Organized Crime (2000), https://www.unodc.org/documents/southeastasiaandpacific/2011/04/ som-indonesia/convention_smug_eng.pdf. 3. Id. at 40. 4. Id. at 42.

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On the other hand, UNODC reports that approximately 53% of the reported victims are sexually exploited, while the other 40% are exploited in forced labor. It also reports that the percentage of reported forced labor increased from 32% in 2007 to 40% in 2011.5 The discrepancy between the numbers provided by UNODC and ILO can be explained by the differences in the sources of the reports received by each organization. ILO focuses on media reports, governments, international organizations, and trade unions while UNODC strictly bases its numbers on government reports.6 The numbers presented above shows the general overview in regards to human trafficking around the world. However, in order to evaluate the efforts made by international organizations and the United States in fighting the crime, this paper will focus on the changes in data regarding human trafficking since the early 21st century. Upon discussing the definitions of human trafficking set forth by various international and governmental organizations and their efforts to fight the crime, this paper will present and analyze the relevant data.

II.

DEFINITIONS

OF

HUMAN TRAFFICKING

A. Definition Provided by the United Nations The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime (Trafficking Protocol) published by the United Nations defines “trafficking in persons� as: [T]he recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.7 5. Id. at 40. 6. Id. at 40. 7. See Protocol, United Nations, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime (2000), http://www.osce.org/odihr/19223?down load=true.

International Efforts to Combat the Crime Against Humanity 49 According to the Trafficking Protocol, in order for a situation to be considered trafficking, it must have the three essential criterion: the act of transportation or recruitment; the means of threat, violence, deception, etc.; and the purpose of the exploitation. A situation may not be considered “trafficking” if it lacks any of these categories. However, Article 3(c) of the convention claims that in the case of children, the second category—the means—need not be suggested in order for an act to be considered trafficking. The second category exists to “make the issue of consent irrelevant” according to Article 3 (b); it decreases the complexities when considering victims who “gave consent” to the recruiters, for example. Interestingly, if a person understands the terms of practice that others might consider exploitive and gives consent by free will, then the person is not, by definition, trafficked.8 B. Definition Provided by the European Court of Human Rights The European Court of Human Rights (the Court) defines trafficking in human beings as follows: any act of exploitation while taking ownership of other human beings and treating them as commodities, and paying little or no compensation; in its definition, trafficking victims’ freedom is limited, and often physical and mental violence or threats are used against them to achieve this.9 The original European Convention for Protection of Human Rights and Fundamental Freedoms (European Convention) does not explicitly mention human trafficking. In its attempt to reinterpret the European Convention to apply to trafficking in persons, the Court indicates that “trafficking itself, within the meaning of Article 3(a) of the Trafficking Protocol falls within the scope of Article 4 of the [European] Convention.”10 In other words, while Article 4 of the original convention never directly addresses trafficking, the Trafficking Protocol forces the Court to treat trafficking as a violation of fundamental human rights.

8. JOHN CERONE, MAX PLANCK ENCYLOPEDIA OF PUBLIC INTERNATIONAL LAW (2007). 9. See Council of Europe, European Convention on Human Rights as amended by Protocols Nos. 11 and 14, supplemented by Protocols Nov. 1, 4, 6, 7, 12 and 13 (2010), http:// www.echr.coe.int/Documents/Convention_ENG.pdf. 10. See Council of Europe, European Court of Human Rights, Guide on Article 4 of the European Convention of Human Rights: Prohibition of slavery and forced labour, (2014), http://www.echr.coe.int/Documents/Guide_Art_4_ENG.pdf.

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C. Definition Provided by the United States As the United States’ policies and statistics regarding human trafficking will be later analyzed, it is necessary to understand how the United States defines human trafficking. The U.S. Department of State (DOS) implies that “trafficking in persons,” “human trafficking,” and “modern slavery” may be used interchangeably.11 DOS’ definition of trafficking is similar to that of the United Nations and the Court. It defines human trafficking as any “act of recruiting, harboring, transporting, providing, or obtaining a person for compelled labor or commercial sex acts through the use of force, fraud, or coercion.”12 D. Distinction Between Trafficking and Smuggling Globalization has caused an increase in practice of human trafficking internationally. Consequently, the United Nations has created distinct parallels between its definition of trafficking and smuggling of illegal immigrants. Article 3(a) of the United Nations’ Protocol against Smuggling of Migrants by Land Sea and Air says: The “[s]muggling of migrants” shall mean the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident. . .13 According to this definition, smuggling does not consider the immigrant’s consent. Therefore, a person who is smuggled into a country and consents to work for a practice that others would consider exploitive, may be smuggled but not trafficked. The Organization for Economic Co-operation and Development (OECD) also treats smuggling and trafficking as two “distinct forms of organized crime.”14 It defines smuggling as “a crime against the state, involving. . .illegal crossing of borders,” and trafficking as “a crime against a 11. See U.S. Department of State, Office to Monitor and Combat Trafficking in Persons, What is Trafficking in Persons? (2016), http://www.state.gov/j/tip/rls/fs/2016/259143 .html. 12. Id. 13. See Protocol, United Nations, Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention Against Transnational Organized Crime (2000), https://www.unodc.org/documents/southeastasiaandpacific/2011/04/ som-indonesia/convention_smug_eng.pdf. 14. See OECD, Illicit Trade: Converging Criminal Networks (2016), http://dx.doi.org/ 10.1787/9789264251847-en.

International Efforts to Combat the Crime Against Humanity 51 person, involving. . .exploitation of another human being in forced labour or. . .prostitution.”15 The U.S. distinguishes smuggling from trafficking as well. According to the U.S. Immigration and Customs Enforcement (ICE), trafficking focuses on the “exploitation” of others, while smuggling “centers on transportation.”16 ICE also implies that while trafficking is concerned with violation of human rights, smuggling is related to “evasion of immigration laws.”17 However, DOS does indicate that smuggling may be part of trafficking by stating that “human trafficking can include, but does not require, movement” in between states or countries.18 In reality, however, the definitions of the two crimes are blurred by elements, such as the local views, type of industry etc., which makes it difficult to conduct preventative measures against trafficking.19

III.

MEASURES TAKEN

TO

COMBAT HUMAN TRAFFICKING

A. European International Organizations Since the adoption of the European Convention, EU and Europol have been working together to combat human trafficking. In 2011, Directive 2011/36/EU, which provided a legal and policy framework to address human trafficking at the EU level, was established by the EU.20 In 2013, the EU Serious and Organized Crime Policy Cycle was established to ensure cooperation with the member state of the EU law enforcements as well as the Europol to fight organized crime.21 Europol has been operating a project to fight trafficking since 2007. This project is aimed to support the law enforcements of the member states by providing information to prevent the crime.22 To accommodate this, Europol has designed the Serious and Organized Crime Threat As15. Id. 16. See U.S. Immigration and Customs Enforcement, “Human trafficking and Smuggling” https://www.ice.gov/factsheets/human-trafficking. 17. Id. 18. Id. 19. See Council of Europe, European Court of Human Rights, Guide on Article 4 of the European Convention of Human Rights: Prohibition of slavery and forced labour (2014), http://www.echr.coe.int/Documents/Guide_Art_4_ENG.pdf. 20. See Protocol, United Nations, Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention Against Transnational Organized Crime (2000), https://www.unodc.org/documents/southeastasiaandpacific/2011/04/ som-indonesia/convention_smug_eng.pdf. 21. Id. 22. Id.

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sessment (SOCTA), which closely analyzes the patterns and factors that contribute to organized crime throughout Europe. With this, Europol provides information and recommendations to the member states to help fight against organized crimes, human trafficking being one of the top priorities.23 For example, in Spring of 2015, Europol, in its joint operation with multiple European countries—Austria, Cyprus, Slovenia, and Switzerland—have successfully identified more than 1,154 Chinese trafficking victims who were recruited by Chinese Organized Crime Group (OCG) and 26 traffickers were arrested.24 In addition to its anti-trafficking conventions, the Council of Europe coordinates extensive research that allows the council to come up with practical measures to reduce human trafficking. One of its findings reveals that reducing demands for the products made by forced labor reduces the size of human trafficking. The organization provides strategies in which governments, businesses, and civil society organizations can cooperate to achieve this reduction of demand.25 It also has the Group of Experts on Action against Trafficking in Human Beings (GRETA). GRETA monitors implementation of measures taken by the European countries who signed the Council of Europe Convention on Action against Trafficking in Human beings by parties. Their responsibilities include, but are not limited to, visiting respective countries and publishing reports regarding the legislatures and legal procedures taken by the countries in regards to trafficking crimes to check whether they satisfy the provisions of the European Convention.26 B. Other International Organizations The International Criminal Police Organization (INTERPOL) is also involved with combating human trafficking. With all the resources and supports it provides, INTERPOL has been continuously involved in opera23. See Europol, “EU Policy Cycle – Empact.” https://www.europol.europa.eu/content/eu-policy-cycle-empact. 24. See Report, U.S. Department of Justice, Attorney General’s Annual Report to Congress and Assessment of U.S. Government Activities to Combat Trafficking in Persons (2015), https://www.justice.gov/ag/file/870826/download. 25. See Council of Europe, Emerging Good Practice by State Authorities, the Business Community and Civil Society in the Area of Reducing Demand for Human Trafficking for the Purposes of Labour Exploitatio, (2016), https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?document Id=09000016806846be https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?document Id=09000016806846be. 26. See Council of Europe, “GRETA: About GRETA – the Group of Experts on Action against Trafficking in Human Beings” (2015), http://www.coe.int/en/web/anti-humantrafficking/greta.

International Efforts to Combat the Crime Against Humanity 53 tions that rescue victims of human trafficking, and arrest traffickers throughout the world.27 INTERPOL works with national police forces to train them in breaking up criminal networks in human trafficking.28 It also collaborates with local police forces, international governmental organizations, and non-governmental organizations to achieve the same goal.29 The organization has many resources that can accommodate other nations in their attempt to fight human trafficking: INTERPOL’s Notices and Diffusions System uses global cooperation to track down and provide location of criminals; additionally, INTERPOL has expert working groups who meet annually to discuss emerging issues regarding human trafficking; finally, INTERPOL deploys Crime Incident Response Teams (IRTs) at nations’ request to provide expertise and support in response to organized crimes.30 Similarly, as one of the most important international governmental bodies, the United Nations contributes to combat modern day slavery in ways other than drafting conventions. The United Nations also conducts research in order to improve available information regarding the crime and to allow for more effective evidence-based responses.31 In addition, to accommodate nations that lack the resources to effectively combat human trafficking, UNODC provides assistance in developing legislature, national policies, criminal justice responses in investigating and prosecuting traffickers, and support for the victims.32 Most importantly, however, the United Nations takes on the leading role in ensuring cooperation and coordination among numerous agencies and governments for the purpose of fighting human trafficking. The United Nations General Assembly have created the Inter-Agency Coordination Group against Trafficking in Persons (ICAT), a policy forum that includes 16 international organizations to facilitate a comprehensive approach to combating human trafficking throughout the globe.33 27. See International Criminal Police Organization, “Operations.” (2016), http://www .interpol.int/Crime-areas/Trafficking-in-human-beings/Operations. 28. Id. 29. International Criminal Police Organization, Trafficking in Human beings - Fact Sheet (Nov 2015), p. 1. 30. Id. at 2. 31. See United Nations Office on Drugs and Crime, A Comprehensive Strategy to Combat Trafficking in Persons and Smuggling of Migrants (2012), https://www.unodc.org/ documents/human-trafficking/UNODC_Strategy_on_Human_Trafficking_and_Migrant_ Smuggling.pdf. 32. Id. at 17. 33. See “The Inter-Agency Cooperation Group against Trafficking in Persons” (2016), http://www.ungift.org/knowledgehub/en/icat/aboutICAT.html.

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ANALYSIS

OF

REPORTED CRIMES, TRAFFICKERS, AND VICTIMS

In general, there is an increasing trend in the number of reports related to human trafficking. For example, with the data gathered from national authorities, UNODC has identified at least 510 flows of transregional human trafficking34; a flow is defined as a route in which transportation of victims is carried out by the traffickers. In addition, UNODC’s report indicates that there is an increased detection in forced labor, involvement of female traffickers, and child trafficking. The same data indicate that the percentage of victims who are trafficked into forced labor increased by 8% from 2007 to 2011.35 The data also show that while the majority of the traffickers are males, UNODC estimated that 28% of the traffickers are, in fact, females as of 2011. In a court case reported to UNODC by Denmark, a couple was convicted of sexually trafficking four women who were from an East Asian country.36 The case specifically mentions that the female partner’s primary role was to travel to East Asian countries to recruit potential female victims through deception. This case shows that one of the possible explanations for the increase in proportion of female traffickers is that female traffickers are more likely to easily gain the trust of female victims in comparison to their male counterparts. The percentage of women among the identified victims has decreased by 25% from 2004 to 2011.37 Unfortunately, this number has been offset by an increase in percentage of young females among detected victims; the percentage of girl victims was at 10% in 2004, and this number increased to 21% in 2011.38 This trend is part of the increase in percentage of children among the trafficking victims from approximately 13%, in 2004, to 33%, in 2011.39 Children are often sold by family members to avoid extreme poverty or are deceived into trafficking at a young age. Most children do not know they are being trafficked. A Nigerian trafficking victim, Paul, was deceived by a British-Nigerian couple who promised to educate him and pay him for household work. Upon moving to U.K. from Nigeria, Paul was 34. See Protocol, United Nations, Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention Against Transnational Organized Crime (2000), https://www.unodc.org/documents/southeastasiaandpacific/2011/04/ som-indonesia/convention_smug_eng.pdf. 35. Id. at 9. 36. See United Nations Office on Drugs and Crime, Global Report on Trafficking in Persons (2014), https://www.unodc.org/documents/data-and-analysis/glotip/GLOTIP_2014_ full_report.pdf. 37. Id. at 10. 38. Id. at 10. 39. Id. at 11.

International Efforts to Combat the Crime Against Humanity 55 forced into labor 17 hours a day without pay and limited contact with the outside world. He first encountered the idea of human trafficking through television, 24 years after having been forced into labor. After realizing he may be a victim, Paul finally asked for help from a Non-Governmental Organization (NGO).40 This example illustrates how children may be coerced into trafficking and may not even know they are victims of trafficking, which prevents them from asking for help in the first place. Increasing trend of reported traffickers and victims is also echoed in the data provided by Europol.

Suspected Criminals of Trafficking Number of Reported Victims of Trafficking Number of Trafficking Cases Submitted to Europol

2013

2014

% Change

3,910

4,127

+5.55%

3,315

4,185

+26.24%

65

625

+861.54%

It is important to note that the numbers mentioned above represent suspected traffickers and victims within the EU countries, only. Another reliable source of data is the Trafficking in Persons Report (TIP Report), which is prepared by DOS. In order to understand this report, it is useful to go over the background regarding the anti-human trafficking laws in U.S.

V.

U.S. ANTI-TRAFFICKING LAWS

AND

STATISTICS

A. Anti-Trafficking Laws The U.S. government coordinates prosecutions of human trafficking cases on a federal level through the Human Trafficking Prosecution Unit, which is under the Department of Justice’s Civil Rights Division.41 The primary law that prohibits human trafficking is the Trafficking Victim Protection Act (TVPA).42 TVPA has its fundamentality in the 13th amendment of the Constitution, which prohibits “involuntary servitude and slavery”; TVPA goes beyond this preposition by specifying prohibited crimes so that the law can be enforced against modern day traffickers.43 For example, 40. See Report, U.S. Department of State, Trafficking in Persons Report (2016), http:// www.state.gov/documents/organization/142979.pdf. 41. KELLY HYLAND, KAVITHA SREEHARSHA, FREEDOM FOR ALL: AN ATTORNEY’S GUIDE TO FIGHTING HUMAN TRAFFICKING 40 (2015). 42. Id. 43. Id. at 41.

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TVPA of 2000 strengthened the statute regarding involuntary servitude by including Section 1584 of Title 18, which states the following: Whoever knowingly and willfully holds to involuntary servitude or sells into any condition of involuntary servitude, any other person for any term, or brings within the United States any person so held, shall be fined under this title or imprisoned not more than 20 years of both. If death results from the violation of this section, or if the violation includes kidnapping or an attempt to kidnap, aggravated sexual abuse or the attempt to commit aggravated sexual abuse, or an attempt to kill, the defendant shall be fined under this title or imprisoned for any term of years or life, or both.44 The specific amendments made in 2000 were the increase of possible imprisonment from 10 years to 20 years and the addition of the second sentence of Section 1584 of Title 18. While there are other parts of TVPA that specifically define other forms of trafficking, Section 1584 touches on the fundamental idea of slavery. TVPA was reauthorized through the Trafficking Victims Protection Reauthorization Act (TVPRA) in 2003, 2005, 2008, and 2013.45 In general, each successive act increased the funding to combat trafficking, provide protection and benefits to the victims regardless of citizenship, authorize stricter legal incrimination of traffickers, and recognize human trafficking as one of the most serious modern day crimes. The TVPA of 2000 also created the Office to Monitor and Combat Trafficking in Persons within the U.S. Department of State,46 which is responsible for publishing the TIP Report. B. Trafficking in Persons Report The annual publication of this report is required by the Congress because it ranks the progress the government has made in its attempt to address human trafficking within the United States.47 In addition, the TVPRA of 2003 requires foreign governments to provide DOS with re44. Trafficking Victims Protection Act, 18 U.S.C. § 1584 (2000). 45. See Polaris. “Current Federal Laws.” (2016), https://polarisproject.org/current-federal-laws. 46. See Polaris Project, Trafficking Victim’s Protection Act (TVPA) – Fact Sheet, http:// files.meetup.com/1337582/Polaris%20TVPA%20Fact%20Sheet.pdf. 47. See Protocol, United Nations, Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention Against Transnational Organized Crime (2000), https://www.unodc.org/documents/southeastasiaandpacific/2011/04/ som-indonesia/convention_smug_eng.pdf.

International Efforts to Combat the Crime Against Humanity 57 ports in regards to trafficking investigations, prosecutions, and convictions in their countries.48 These data provided by other national authorities have been included in the TIP Report since 2004. The TIP Report of 2010 reported 30,961 identified trafficking victims worldwide in 2008.49 This number has steadily increased up to 77,823 in 2015.50 It is important to note that these numbers only represent numbers of identified victims in countries that report to the U.S. government. Since many countries do not follow this procedure, there is little doubt that the numbers mentioned above are overwhelmingly underrepresented. C. Crime Statistics As a country that initiated the gathering of information from other nations, the U.S. also has an increasing trend of reported crimes related to human trafficking. According to the National Human Trafficking Resource Center (NHTRC), the reports and cases of trafficking have been increasing each year. NHTRC moderates a hotline call that collects reports of human trafficking. In 2016, there were total of 7,572 reported cases, which was a 34% increase from the year before.51 This was the highest number of cases reported per year as of December 31, 2016. Most of these reports are from people who have access to resources or victims who were able to escape from acts of trafficking. An example of this is a story of a Rwandan victim, Sabine, who lost all of her family members during the Genocide in Rwanda. A wealthy family from the U.S. suggested that she move in with them. Upon moving to the U.S. from Rwanda, she was imprisoned at home, forced to work all day, and to sleep on kitchen floors. Fortunately, Sabine was referred to Polaris, an anti-trafficking organization, through a Rwandan acquaintance.52 This story illustrates that only those who are fortunate enough to find ways to report themselves are included in these statistics. Thus, it is reasonable to assume that the numbers mentioned above represent only a fraction of the actual trafficking incidences happening in the U.S. 48. See Report, U.S. Department of State, Trafficking in Persons Report (2005), http:// www.state.gov/documents/organization/47255.pdf. 49. See Report, U.S. Department of State, Trafficking in Persons Report (2010), http:// www.state.gov/documents/organization/142979.pdf. 50. See Report, U.S. Department of State, Trafficking in Persons Report (2016), http:// www.state.gov/documents/organization/142979.pdf. 51. See National Human Trafficking Resource Center. “Hotline Statistics.” (2016), https://traffickingresourcecenter.org/states. 52. See Polaris, “Survivor Story: Genocide Survivor to Labor Trafficking Victim.” (2015), https://polarisproject.org/blog/2015/01/31/survivor-story-genocide-survivor-labor-trafficking-victim.

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All in all, information regarding human traffickers and the victims is increasing, confirmed by numerous reports from various international organizations, such as UNODC and Europol as well as the U.S. Department of State. This may translate to a somewhat successful efforts of organizations and governments throughout the globe to combat modern day slavery; while the increase in number of identified traffickers and victims is troubling, it is also an indication that the movement against human trafficking is gaining momentum.

VI.

ANALYSIS

OF THE

PROSECUTION

AND

CONVICTION RATES

However, the increase in the information regarding traffickers and the victims is not sufficient to conclude that the anti-trafficking efforts are effective. It is also necessary to analyze how the organizations and governments deal with the traffickers once they are under custody by analyzing the change in numbers of prosecutions and convictions. Global Report on Trafficking in Persons of UNODC has gathered the following data from 2012 to 201453: Number of Convictions, recorded per year

Shares of Countries

No Convictions

15%

< 10

25%

10 ~ 50

30%

> 50

15%

Information Not Available

15%

These data suggest that approximately 40% of the countries researched by UNODC have had less than a total of 10 convictions per year. This number is disturbing, given that majority of the countries around the globe have adopted legislatures against human trafficking. Furthermore, the report of UNODC also indicates that about 70% of the countries have had stable or unclear trends in conviction rates from 2003 to 2012; the data suggest that only about 13% of the countries have had increasing trends in conviction rates.54 This means despite the fact that an overwhelming majority of the countries have introduced laws criminalizing 53. See Protocol, United Nations, Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention Against Transnational Organized Crime (2000), https://www.unodc.org/documents/southeastasiaandpacific/2011/04/ som-indonesia/convention_smug_eng.pdf. 54. Id.

International Efforts to Combat the Crime Against Humanity 59 human trafficking, the actual implementations of such legislature to prosecute the criminals have been lagging. UNODC also provides estimations of the likelihood a trafficker will be prosecuted and convicted upon investigation by the law enforcements. The statistics show that approximately 45% of those who have been arrested by the police will be prosecuted; among those who have been prosecuted, approximately 55% of them will be convicted.55 This means that of those who have been investigated, only about 24% of the traffickers will actually be convicted. The overall number of prosecutions and convictions reported from foreign governments have been increasing at a slow rate. There are times when both numbers decrease in comparison to the year before. While the conviction rates seemed to be increasing earlier on in the data, the rates show a decreasing trend after 2010. The data set ends in 2015 with 35%â&#x20AC;&#x201D; the exact same conviction rate of 2003 when the data were first gathered. Interestingly, taking the average of all the conviction rates result in a 55% conviction rate, which is the exact number given by the UNODC. As mentioned above, the conviction rate of 35% in 2015 can be explained by the increase in better quality data, which is shared by governments; this number, however, suggests that the numbers in this report may be a tip of the iceberg, a very alarming implication. The general trend of decreasing conviction rates may be interpreted in two ways: 1. The governments do not have enough resources to actually convict the prosecuted traffickers, or 2. The governments are prosecuting traffickers at a much faster rate than they can convict other traffickers. Unfortunately, without additional circumstantial evidence, it is difficult to decide which explanation is more plausible. Unlike the significant increase in number of reports regarding traffickers and victims, the number of prosecutions and convictions of traffickers has been stagnant since the early 21st century. This slow progress may reflect how difficult it can be for national authorities to track down and prosecute the traffickers. It may also reflect flaws in the justice systems in prosecuting the traffickers. In general, the number of prosecutions and convictions reported here represents only a fraction of the actual numbers of prosecutions and convictions since not all foreign governments report to DOS or the United Nations. Nonetheless, it seems reasonable to assume that prosecution and conviction involving human trafficking have shown small improvements overall. 55.

Id. at 55.

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REMEDIES

FOR THE

VICTIMS

The efforts to fight against human trafficking mentioned above shows determination to prevent or even eradicate the crime. While these measures are mostly concerned with the traffickers, punishment should not be the only purpose. Anti-human trafficking policies must include measures to accommodate the victims. The traffickers, if convicted, will serve their time but the victims must rebuild their lives in addition to coping with their traumatic experiences and this can be difficult without help. While conviction rates are generally low across countries, it is even more rare for identified victims to get any type of remedy or support.56 In this section, international standards concerning reparation for trafficking victims will be discussed by referencing relevant international conventions. A. Types and Definitions of Reparation There are many different types of reparations or remedies that victims may receive. Two of them are “restitution” and “compensation.” Restitution is defined as “restoring the victim. . .to the original situation before the violation of their rights occurred,” and compensation is defined as “money paid to a trafficked person in an attempt to remedy the damage the person suffered as a result of being trafficked.”57 From these definitions, one can infer that “restitution” includes “compensation” as the means of making the victim whole again. For the purpose of this paper, “restitution” and “reparation” will be used interchangeably to mean all and any support victims need, unless specified otherwise. B. Rights of the Victims of Human Trafficking From the conventions discussed previously, it is clear that human trafficking is a crime in violation of human rights. Victims of human trafficking, therefore, are entitled to remedies as “victims of human rights violations and victims of crime.”58 They also have certain rights as victims of violation of human rights. One of these rights include the right not to be prosecuted as criminals. The European Trafficking Convention, and the ILO Protocol to Convention No. 29 states that States should ensure that 56. See Protocol, United Nations, Providing Effective Remedies for Victims of Trafficking in Persons (2016), https://www.unodc.org/documents/human-trafficking/ICAT/ICAT_ Policy_Paper_3._Providing_Effective_Remedies_for_Victims_of_Trafficking_in_Persons_ 2016.pdf. 57. Id. at 12. 58. Id. at 2.

International Efforts to Combat the Crime Against Humanity 61 the “prosecutors have the right not to prosecute” victims, in cases where they were involved in illegal acts.59 The Office of the High Commissioner for Human Rights (OHCHR) guidelines also indicates that trafficked victims should not be “detained, charged, or prosecuted for illegality of their entry into. . .countries. . .or for involvement in unlawful activities” as long as it was the result of trafficking.60 It is necessary to include these clauses to prevent wrongful prosecution of the victims, but in reality, this happens often and is one of the reasons why trafficking victims hesitate to come forward to law enforcements. Additionally, the victims have the right to receive information and legal assistance from the government. The most important reasons for failure of victims to claim restitution is because they lack the knowledge about the resources and their rights to access them. The Trafficking Protocol requires the states to provide any and all the information in regards to court and administrative proceedings as well as counseling and information about legal rights to the victims in languages they understand.61 The third right of the victims defined by the United Nations is the “right to remain” in the country they are rescued.62 Often, because the governments are in a hurry to deport victims who are illegal immigrants, they are unable to receive any remedies and are put in danger of re-entering the trafficking industry in their home country. Because of this, the Trafficking Protocol recommends adopting legislatures that allows the alien victims to stay in the country either temporarily or permanently.63 While this is a “recommendation” given by the international organization, there should be no reason for any state to reject it, if the state is sincerely concerned about the trafficking victims. Finally, the United Nations claims that victims also have the right to receive reparation “irrespective of immigration status.”64 The Trafficking Protocol and the European Trafficking Convention require the governments to “undertake returns ‘with due regard for the safety of the persons and for the status of any legal proceedings related to the fact that the per59. Id. at 14. 60. See United Nations Human Rights, Recommended Principles and Guidelines on Human Rights and Human Trafficking (2010), http://www.ohchr.org/Documents/Publications/Commentary_Human_Trafficking_en.pdf. 61. See Protocol, United Nations, Providing Effective Remedies for Victims of Trafficking in Persons (2016), https://www.unodc.org/documents/human-trafficking/ICAT/ICAT_ Policy_Paper_3._Providing_Effective_Remedies_for_Victims_of_Trafficking_in_Persons_ 2016.pdf. 62. Id. at 15. 63. Id. at 15. 64. Id. at 17.

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son is a victim of trafficking.’”65 Clearly, this right is complementary to the rights discussed previously in that a victim may not be able to receive any compensation if he or she is unable to reside in the country or rejected any compensation because of his or her alien status. C. Obligations of the State In 1928, the Permanent Court of International Justice held that the state, or a national government, is obliged to provide reparation to any victim who suffered harm because of violations of international laws.66 This decision can be considered to be fundamental yet essential to the development of international law regarding remedies for victims. Article 2.3 of the International Covenant on Civil and Political Rights, adopted by the UN General Assembly in 1966, requires the states to “ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy” and to “ensure that remedies be determined and enforced by national authorities.”67 In short, the national governments have the duty to provide any necessary restitution for the trafficking victims to make them whole again. Some of the ways the states can achieve this is through court orders, state-funded compensations, or use of confiscated assets of the traffickers.68 The victims can receive restitution through the criminal court or the civil court.69 In a criminal case, the judge would have to include a clause forcing the convicted trafficker to compensate the victim.70 In a civil court, the victim would be filing a case against the asset of the trafficker for compensation.71 The purpose of the state-funded compensation is to provide restitution for the victims without considering “whether or not the offender can be identified, sentenced and punished.”72 Finally, there is an 65. Id. 66. Chorzow Factory Case (Ger. V. Pol.), (1928) P.C.I.J., Sr. A, No.17, at 29. 67. See United Nations, International Covenant on Civil and Political Rights (2016), http://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf. 68. See Protocol, United Nations, Providing Effective Remedies for Victims of Trafficking in Persons (2016), https://www.unodc.org/documents/human-trafficking/ICAT/ ICAT_Policy_Paper_3._Providing_Effective_Remedies_for_Victims_of_Trafficking_in_Per sons_2016.pdf. 69. See United Nations Office on Drugs and Crime, Anti-human Trafficking Manual for Criminal Justice Practitioners: Module 13 (2009), https://www.unodc.org/documents/ human-trafficking/TIP_module13_Ebook.pdf. 70. Id. at 4. 71. Id. at 5. 72. See United Nations Office on Drugs and Crime, Model Law Against Trafficking in Persons (2009), https://www.unodc.org/documents/human-trafficking/Model_Law_against_ TIP.pdf.

International Efforts to Combat the Crime Against Humanity 63 option for the victims to receive restitution from the assets of the traffickers that are confiscated by the government. To achieve this, the Trafficking Protocol and the United Nations Convention against Transnational Crime (UNTOC) includes clauses that require the national government to “establish appropriate procedures to provide access to compensation and restitution for victims of offences covered by this Convention.”73 Additionally, the same convention requires the state to legitimize the confiscation of trafficker’s assets; the purpose of this is so that they would be able to “benefit the victims and. . .to finance the establishment of compensation fund for victims.”74

VIII.

EVALUATION

OF

RESTITUTION POLICIES

IN

U.S.

A. Mandatory Restitution Act The Trafficking Victims Protection Act (TVPA) of 2000 includes the Mandatory Restitution Act which made restitution for the trafficking victims mandatory by stating that “[U.S. federal courts] shall order restitution for any offense” that is committed under the anti-trafficking laws.75 This act requires that a trafficking victim receive two types of compensation: any economic losses, such as medical services or attorney’s fees,76 and compensation for the value of his or her labor or service.77 Within the statute, Congress provides a clear formula to calculate the value of the trafficking victims’ labor or services by stating the following: The greater of the gross income or value to the defendant of the victim’s services or labor or the value of the victim’s labor as guaranteed under the minimum wage and overtime guarantees of the Fair Labor Standards Act.78

73. See Protocol, United Nations, Providing Effective Remedies for Victims of Trafficking in Persons (2016), https://www.unodc.org/documents/human-trafficking/ICAT/ ICAT_Policy_Paper_3._Providing_Effective_Remedies_for_Victims_of_Trafficking_in_Per sons_2016.pdf. 74. Id. at 6. 75. 18 U.S.C. 1593. 76. 18 U.S.C. 2259. 77. ALEXANDRA LEVY, MARTINA VANDENBERG, BREAKING THE LAW: THE FAILURE TO AWARD MANDATORY CRIMINAL RESITUTION TO VICTIMS IN SEX TRAFFICKING CASES 43-72 (2016). 78. 18 U.S.C. 1593.

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B. Failure to Implement by the Government However, data gathered in recent years shows that these measures to make trafficking victims whole again are rarely implemented. Despite the fact that the federal law directly states that the courts must order restitution for the victims of human trafficking, research conducted by the Human Trafficking Pro Bono Legal Center (HT Pro Bono) found that restitution was ordered in only 36% of the federal trafficking cases; and while restitution was ordered in 93% of the labor trafficking cases, it was ordered in only 56% of the sex trafficking cases.79 Following are some of the reasons for such failures: 1. Prosecutors fail to request mandatory restitution because it is often difficult to determine how much should be granted to the victims; this is the case especially in sex trafficking cases.80 2. There is substantial evidence that the court is more likely to award restitution for the victim if the prosecutor requests it. However, Congress depends entirely on the prosecutors to pursue and request restitution orders.81 Therefore, if the prosecutors of the cases do not do so, it is highly unlikely that the victims would receive any restitution. 3. There is controversy among judges and prosecutors regarding whether victims of sex trafficking should be compensated at all for prostitution.82 C. Failure to Collect Restitution by the Government Another problem is that when restitution is ordered, it is often not collected in an efficient manner.83 The “Restitution Orders for Defendants Sentenced in FY 2015” section of Attorney General’s Trafficking in Persons Report shows that out of $4,166,231 restitution that was ordered during the fiscal year of 2015, only $987 was collected. In other words, the 79. STEPHANIE FRANCIS WARD, DESPITE MANDATORY RESTITUTION LAW, COURTS RARELY AWARD TRAFFICKING VICTIMS, STUDY FINDS. (2014). 80. ALEXANDRA LEVY, MARTINA VANDENBERG, BREAKING THE LAW: THE FAILURE TO AWARD MANDATORY CRIMINAL RESTITUTION TO VICTIMS IN SEX TRAFFICKING CASES 44 (2016). 81. THEODORE SANGALIS, ELUSIVE EMPOWERMENT: COMPENSATING THE SEX TRAFFICKED PERSON UNDER THE TRAFFICKING VICTIMS PROTECTION ACT 403-439 (2012). 82. ALEXANDRA LEVY, MARTINA VANDENBERG, BREAKING THE LAW: THE FAILURE TO AWARD MANDATORY CRIMINAL RESTITUTION TO VICTIMS IN SEX TRAFFICKING CASES 62 (2016). 83. THEODORE SANGALIS, ELUSIVE EMPOWERMENT: COMPENSATING THE SEX TRAFFICKED PERSON UNDER THE TRAFFICKING VICTIMS PROTECTION ACT 413 (2012).

International Efforts to Combat the Crime Against Humanity 65 total rate of collection of restitution from convicted traffickers was 0.023%.84 Considering that these data were finalized towards the end of 2015, one may argue that it could have been too early to assess the collection rate. This may be true for the restitutions that had been ordered towards the end of 2015. However, the negligible collection rate from restitutions ordered in 2014 casts reasonable doubt that time is the issue in collecting restitution. These data show that even when restitution is ordered, the collection is not carried out in a timely manner, if carried out at all. Thus, the trafficking victims, given that they qualify for restitutions, may not benefit much from such orders. Failure of providing restitution to the victims defeats the original purpose of the Mandatory Restitution Act: to make the trafficking victims whole again. Clearly, improvement in the policies in regards to restitution is needed to ensure that those who were already stripped of fundamental human rights before are not victimized again.

IX.

FINAL ANALYSIS

AND

CONCLUSION

The primary focus of this paper was to analyze the changes in data regarding human trafficking in order to evaluate the effectiveness of the efforts exerted by international organizations in fighting the crime. An analysis of the available data in relation to human trafficking showed mixed signs of progress. The increased volume of reported crimes, traffickers, and victims shows that nations have spread awareness and engaged the public as well as the law enforcement in identifying and fighting modern day slavery. However, the stagnant growth in prosecution and convictions rates throughout the globe suggests that the national governments are struggling to effectively take the next step: punishing the criminals. The obstacles faced by national governments as well as international organizations are numerous; as briefly mentioned in this paper, it may be the fact that the concept of criminalizing human traffickers is relatively new. In the U.S., there is evidence which suggests that lack of funding may be part of the obstacles faced by organizations fighting human trafficking.85 Perhaps misconceptions about the crime among law enforcement members 84. See Report, U.S. Department of Justice, Attorney Generalâ&#x20AC;&#x2122;s Annual Report to Congress and Assessment of U.S. Government Activities to Combat Trafficking in Persons (2015), https://www.justice.gov/ag/file/870826/download. 85. Jean Bruggeman, Executive Director of Freedom Network USA, e-mail message to U.S. Department of State Office to Monitor and Combat Trafficking in Persons, Comments on Impending Released of Department of State 2016 Trafficking in Persons Report (January 19, 2016), p 4. Available from http://freedomnetworkusa.org/wp-content/uploads/ 2016/06/2016-FN-TIP-Comments-FINAL.pdf.

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are also contributing to this pattern.86 There are other numerous factors, such as corruption or unstable governments, that may be hindering the global efforts to fight human trafficking, but those are topics beyond the scope of this paper. Additionally, the paper briefly touched on international laws in regards to providing restitution for the victims. The laws attempt to provide victims with the best possible protection and reparation. However, they are not without fault; for example, while the Trafficking Protocol state what the governments should and are required to do, “it does not establish a supervisory mechanism to examine [their] implementation” of the laws.87 Unfortunately, internationally gathered statistics or information regarding restitutions is unavailable. Thus, it is difficult to assess whether the member states are following the standards set by international organizations. Nevertheless, considering all the resources that have been coming into play, it is safe to assume that the somewhat stagnant progress is definitely not caused by lack of awareness or lack of urgency. At the very least, having the vast majority of countries taking actions to pursue a common goal—elimination of modern day slavery—represents progress that should be appreciated. Moreover, it may be too early to fully evaluate the progress that has been made with the limited data available. Still, there are many improvements that need to be made in anti-human trafficking policies, such as strengthening the accommodation of and restitution for the victims. However, with the recent progress made by international governmental organizations and national authorities, there is little doubt that, with time, there will be more positive and definite progress towards elimination of the crime against humanity in the future.

86. Id. at 13. 87. See Protocol, United Nations, Providing Effective Remedies for Victims of Trafficking in Persons (2016), https://www.unodc.org/documents/human-trafficking/ICAT/ICAT_ Policy_Paper_3._Providing_Effective_Remedies_for_Victims_of_Trafficking_in_Persons_ 2016.pdf.

FEDERAL MANDATORY MINIMUM SENTENCES FOR DRUG CRIMES: A BURDEN ON OFFENDERS, COMMUNITIES, AND THE FEDERAL PRISON SYSTEM

Emily Kohlheim*

Mandatory minimum sentences, which establish the shortest length of a time an offender can serve in prison for particular crimes, have been widely applied to federal drug crimes through laws such as the Anti-Drug Abuse Act of 1986. The philosophy behind implementing mandatory minimum sentences was to standardize sentencing, but the 1986 law did not accomplish this goal in terms of federal drug crimes. The law’s provisions exacerbated racial disparities in sentencing, caused overcrowding in federal prisons, and led to mostly low-level, nonviolent drug offenders serving lengthy sentences. Lawmakers have realized some of the detrimental effects of the 1986 law and have passed legislation including the federal “safety valve” of 1994 and the Fair Sentencing Act of 2010 aimed at softening some of its provisions. The U.S. Sentencing Commission, which implements federal sentencing guidelines, has also adjusted its guidelines to mitigate some of these unjust effects. Despite these recent developments, the article will argue that federal mandatory minimums for drug crimes should be eliminated altogether. Low-level, nonviolent drug offenders, their communities, and the federal prison system would be better served by alternatives to incarceration that already exist at the federal level such as probation, probation with the condition of home confinement, and split sentences. Despite efforts by some members of Congress and the Obama Administration to reform mandatory minimum sentences for federal drug crimes, future progress on these efforts is unclear due to the Obama to Trump transition.

* Emily Kohlheim is a third year Political Science and Arabic double major with a Study of Religion minor who plans to attend law school after graduation. In addition to her involvement with the UCLA Undergraduate Law Journal, Emily is one of the co-Executive Directors of Project Working for Immigrant Literacy Development (WILD), the Finance Director of the USAC Community Service Commission and the Chair of the USAC Community Service Mini Fund Committee. Editor: Kunal Jhaveri is a third year Economics and Political Science double major with a minor in Public Affairs. In addition to his involvement with the UCLA Undergraduate Law Journal, Kunal serves on the Executive Boards for Model UN at UCLA and the UCLA Pre Law Society. He intends to attend law school upon graduation.

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UCLA UNDERGRADUATE LAW JOURNAL Volume 16 I.

INTRODUCTION

Mandatory minimum sentences establish the shortest length of time courts must order defendants convicted of crimes carrying a minimum penalty to serve in prison.1 The impetus for federal mandatory minimum sentences is rooted in concerns surrounding individual judges handing down widely differing sentences for the same crimes. These concerns led lawmakers to pass the Sentencing Reform Act of 1984, which aimed to standardize sentences by creating the U.S. Sentencing Commission to generate federal sentencing guidelines and oversee how those guidelines are enacted.2 Drug crimes involving crack cocaine developed a particular significance in terms of federal mandatory minimum sentences, which is clearly shown through provisions in the Anti-Drug Abuse Act of 1986. Federal mandatory minimums for drug crimes have led to prison overcrowding, racial disparities in sentencing, and a lack of alternatives to prison time that would better serve low-level, nonviolent drug offenders. These issues clearly demonstrate a need for lawmakers to discontinue federal mandatory minimums for drug crimes and increase the availability of alternatives to prison time for low-level, nonviolent drug offenders. This article begins by illustrating the history behind federal mandatory minimums for drug crimes. It then outlines the many wide-reaching effects of the Anti-Drug Abuse Act of 1986 and highlights more recent findings proving the assumptions underlying the lawâ&#x20AC;&#x2122;s major provisions are false. Then it evaluates legislation passed with the purpose of softening the provisions of the 1986 law and the effects of these newer laws. It also analyzes U.S. Sentencing Commission reports that are critical of federal mandatory minimums for drug crimes. The article also elaborates upon alternatives to incarceration that currently exist at the federal level but are not available to offenders whose crimes carry a mandatory minimum sentence. This piece will present the argument that federal mandatory minimums for drug crimes should be eliminated and that the alternatives to incarceration already in existence at the federal level would be better options for lowlevel, nonviolent drug offenders currently faced with lengthy mandatory minimum sentences. These alternatives would also better serve families, communities and the federal prison system. The article concludes by analyzing President Obamaâ&#x20AC;&#x2122;s legacy in regard to mandatory minimums for drug crimes and commuting sentences and the implications of the Obama to Trump transition. 1. Safety Valves in a Nutshell, Families Against Mandatory Minimums (Jul. 17 2012). 2. Deborah J. Vagins & Jesselyn McCurdy, Cracks in the System: Twenty Years of the Unjust Federal Crack Cocaine Law, The American Civil Liberties Union (October 2006).

Federal Mandatory Minimum Sentences for Drug Crimes II.

TRENDS

AND

EVENTS LEADING UP TO ABUSE ACT OF 1986

THE

69

ANTI-DRUG

The Anti-Drug Abuse Act of 1986 arose as a result of converging societal and political trends surrounding the drug trade, and in particular, crack cocaine. This convergence of issues caused lawmakers to look for a solution that was tough on drug offenders, resulting in a law that created federal mandatory minimums for many drug crimes and has had far-reaching effects that stretch into the present day. Crack cocaine, which is made from heating a mixture of powder cocaine, baking soda and water, had infiltrated cities and was widespread by 1986. It was also cheaper than powder cocaine at $5-20 per vial instead of $50-$100 per gram-and-a-half, giving this illegal drug wide appeal.3 The belief that crack cocaine was associated with an unusually high level of violence in its trade and that crack cocaine was more harmful to users than other drugs was a significant consideration in the formulation of the AntiDrug Abuse Act of 1986. Against the backdrop of the increasing prominence of crack cocaine in the drug trade, Len Bias, a twenty-two-year-old college basketball player who had signed with the Boston Celtics, died of an overdose on June 19, 1986. It was mistakenly concluded at the time that Bias had overdosed on crack cocaine, when he had really overdosed on powder cocaine.4 At that time, Congressional Democrats were also eager to present themselves as “tough on crime” like their Republican counterparts. This desire, combined with Len Bias’s highly-publicized death in a Congressional election year and the increasing popularity of crack cocaine in the drug trade led to a race to pass a new drug law that was harsh on offenders. House committees developed the resulting piece of legislation, known as the Anti-Drug Abuse Act of 1986, between July and the beginning of the August recess. It was passed and signed into law just prior to the November elections. This extremely short time frame did not allow for expert testimony about its contents including its implementation of mandatory minimum sentences for certain drug crimes, which have led to detrimental effects in the justice system.5

3. Id. 4. Deborah J. Vagins & Jesselyn McCurdy, Cracks in the System: Twenty Years of the Unjust Federal Crack Cocaine Law, The American Civil Liberties Union (October 2006). 5. Eric E. Sterling, Drug Laws and Snitching: A Primer, PBS (1999), http://www.pbs .org/wgbh/pages/frontline/shows/snitch/primer/.

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THE ANTI-DRUG ABUSE ACT

OF

1986

The Anti-Drug Abuse Act of 1986 arose from political concerns surrounding the drug trade at the time, particularly the crack cocaine trade. This law established several federal mandatory minimums for drug crimes based on drug quantity and created a wide disparity between powder and crack cocaine. The powder and crack cocaine quantity disparity as well as the lengthy federal mandatory minimums this law established created sizeable, negative effects within the federal justice system, some of which impact sentencing for federal drug crimes today. A. New Mandatory Minimums and the Powder and CrackCocaine Quantity Disparity The Anti-Drug Abuse Act of 1986 introduced mandatory minimum sentences for federal drug crimes that met criteria such as intent to distribute, and included first-time offenders.6 This law also mandated a 100:1 ratio between the amount of powder and crack cocaine that would trigger a mandatory minimum sentence, with 500 grams of powder cocaine and 5 grams of crack cocaine triggering a five year mandatory minimum sentence and 5,000 grams of powder cocaine and 50 grams of crack cocaine triggering a ten year mandatory minimum sentence.7 Lawmakers created this miss-match due to their belief that crack cocaine involved more violent trafficking than did powder cocaine, was more addictive than powder cocaine, and that “crack babies” are harmed more than infants exposed to other illegal substances while in the womb.8 The 1986 law’s creation of numerous federal mandatory minimums for drug crimes has greatly affected sentencing and prison overcrowding and, along with the crack and powder cocaine disparity, has widened racial disparities in sentencing. B. Widening Racial Disparities in Prosecution and Sentences for Drug Crimes The 100:1 ratio for powder and crack cocaine sentencing exacerbated racial disparities in the prosecution of federal drug crimes. Just before the passage of the Anti-Drug Abuse Act of 1986, African Americans faced federal drug sentences that were 11 percent longer than those of whites, 6. Federal Mandatory Minimums, Families Against mandatory Minimums (Feb. 25 2013). 7. A Brief History of Crack Cocaine Sentencing Laws, Families Against Mandatory Minimums (Apr. 13 2012). 8. Id.

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while four years after the law was passed, that percentage had increased to 49 percent.9 This increasing sentencing disparity illustrates the fact that the 1986 law directly contradicts the intent to standardize sentencing through mandatory minimum sentences, instead worsening the issues the Sentencing Reform Act of 1984 aimed to solve. The detrimental effects of the 1986 law are also shown by the fact that by the year 2000, more African American men were incarcerated than were pursuing a higher education.10 Among women, African Americans have faced an 800 percent increase in incarceration while women overall have experienced a 400 percent increase, illustrating another facet of the racial disparity in a federal justice system that is fighting a war on drugs.11 According to Marc Maur’s 2010 report for the Sentencing Project and Deborah J. Vagins and Jesselyn McCurdy’s 2006 report for the American Civil Liberties Union, African Americans have made up 80 percent or more of the persons prosecuted for crack cocaine offenses even though white and Hispanic offenders comprise 66 percent of crack cocaine users.12 Maur also quotes from the United States Sentencing Commission’s fifteenyear report on federal mandatory minimum sentencing which refers to the harsh crack cocaine provision as adding “more to the differences in average sentencing between African-American and White offenders than any possible effect of discrimination.”13 These racial disparities have lead to negative effects for not only the individuals incarcerated and the overcrowded prison system, but also on entire communities deprived of family members and people leading productive lives through the pursuit of an education and career. The Anti-Drug Abuse Act of 1986 undermined the intent for mandatory minimums to standardize sentencing, as seen through the widening racial disparities in sentencing. The assumptions underlying the law’s provision for the quantity disparity between powder and crack cocaine has also been proven to be incorrect, further calling the law’s validity into question and leading lawmakers to pass legislation softening the 1986 law’s sentencing components.

9. Deborah J. Vagins & Jesselyn McCurdy, Cracks in the System: Twenty Years of the Unjust Federal Crack Cocaine Law, The American Civil Liberties Union (October 2006). 10. Id. 11. Id. 12. Mark Maur, Viewpoint, Vol. 94, Sentencing Project Judicature 6-8, 40 (2010). Deborah J. Vagins & Jesselyn McCurdy, Cracks in the System: Twenty Years of the Unjust Federal Crack Cocaine Law, The American Civil Liberties Union (October 2006). 13. Mark Maur, Viewpoint, Vol. 94, Sentencing Project Judicature 6-8, 40 (2010).

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C. New Findings Undermining the Premises of the Anti-Drug Abuse Act of 1986 Research has disproven the assumptions about crack cocaine use and trafficking that were used to create the 100:1 ratio in 1986. It is now known that crack cocaine and powder cocaine have the same addictive effects and that infants exposed to powder and crack cocaine in the womb can be equally harmed.14 Crack cocaine trafficking has also been shown to be much less violent than previously assumed, with 64.8 percent of crack offenses being weapon-free.15 The effectiveness of federal mandatory minimum sentences for drug crimes are further called into question by the fact that there is little to no link between federal mandatory minimums and reduced crime.16 The fact that less than 10 percent of cases are prosecuted at the federal level means although crime has been decreasing since the 1990s while incarceration has increased, it is unlikely that federal mandatory minimums for drug crimes have caused this decline.17 Furthermore, federal mandatory minimums for drug crimes are especially ineffective for deterrence due to the large and continuous demand for drugs, meaning new suppliers will fill in the gaps those who are caught and imprisoned will create.18 The 1986 law has also not achieved its goal of targeting high-level drug traffickers, as shown by U.S. Sentencing Commission data stating 73 percent of people federally prosecuted for crack cocaine offenses play only minor roles in the drug trade such as acting as dealers on the street.19 The overwhelming evidence against the 1986 law illustrates its failure to accomplish the original goals of mandatory minimum sentences. The evidence also makes it clear that federal mandatory minimums for drug crimes have not definitively reduced crime and may not be as effective as alternatives to incarceration for low-level, nonviolent offenders. Lawmakers on both sides of the aisle have realized these negative outcomes and have passed legislation aimed at softening some of the most unjust provisions of the 1986 law such as the harsh punishments for firsttime, nonviolent offenders and the 100:1 powder to crack cocaine quantity disparity. 14. Deborah J. Vagins & Jesselyn McCurdy, Cracks in the System: Twenty Years of the Unjust Federal Crack Cocaine Law, The American Civil Liberties Union (October 2006). 15. Id. 16. Mark Maur, Viewpoint, Vol. 94, Sentencing Project Judicature 6-8, 40 (2010). 17. Id. 18. Id. 19. Deborah J. Vagins & Jesselyn McCurdy, Cracks in the System: Twenty Years of the Unjust Federal Crack Cocaine Law, The American Civil Liberties Union (October 2006).

Federal Mandatory Minimum Sentences for Drug Crimes IV.

LEGISLATION AIMED AT SOFTENING COMPONENTS ANTI-DRUG ABUSE ACT OF 1986

73 OF THE

A. The 1994 Federal “Safety Valve” In 1994, Congress passed a federal “safety valve,” which is named in reference to how the law allows offenders who meet the requirements to receive a shorter sentence than the mandatory minimum for their crime dictates.20 This new law came as a result of lawmakers recognizing the shortcomings of the Anti-Drug Abuse Act of 1986, which led to more and longer incarcerations for first-time and low-level offenders than it did for higher-level offenders in the drug trade.21 The requirements to qualify for the safety valve are: not using violence or a weapon and nobody being harmed during the offense, having limited or no prior convictions, being a low-level participant in the offense and handing over all known information about the offense to the prosecutor. About 25 percent of federal drug offenders qualify for the safety valve.22 The safety valve provision allows the special circumstances of cases to be taken into account and correctly identifies the unjust nature of lengthy sentences for first-time, nonviolent offenders. However, the safety valve requirements are strict, leading to limited numbers of even low-level offenders qualifying. One aspect of this limitation affecting defendants of color is that it is more probable that these defendants will have previous offenses on their record, making it more difficult for them to qualify for the federal safety valve to reduce their mandatory minimum sentence.23 In this way, the 1994 safety valve still fails to alleviate the racial disparities the 1986 law caused. Low-level offenders are also disadvantaged during the prosecution process because the other method to reduce a federal mandatory minimum sentence is to provide “substantial assistance” to the government which leads to prosecuting another offender.24 This rule obviously gives higher-level participants in the drug trade a sizeable advantage because they would be able to provide information about many lower-level participants.25 This is especially true in light of the 1988 conspiracy law that extended the 1986 mandatory minimums to all individuals involved in a 20. Safety Valves in a Nutshell, Families Against Mandatory Minimums (Jul. 17 2012). 21. Id. 22. Id. 23. Mark Maur, Viewpoint, Vol. 94, Sentencing Project Judicature 6-8, 40 (2010). 24. Eric E. Sterling, Drug Laws and Snitching: A Primer, PBS (1999), http://www.pbs .org/wgbh/pages/frontline/shows/snitch/primer/. 25. Id.

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drug-related conspiracy.26 This means high-level traffickers can now provide information about money launderers and others who may not even have a direct connection to the drugs being traded, giving these offenders more leeway than lawmakers intended.27 The 1994 safety valve also did nothing to alleviate the 100:1 ratio for powder and crack cocaine quantities triggering federal mandatory minimums. B. The Fair Sentencing Act of 2010 The 100:1 ratio was reduced to 18:1 under the Fair Sentencing Act of 2010 by increasing the amount of crack cocaine that would trigger a fiveyear mandatory minimum sentence from 5 grams to 28 grams, and the amount that would trigger a ten-year mandatory minimum sentence from 50 grams to 280 grams.28 The amounts required for powder cocaine stayed the same at 500 and 5,000 grams, respectively.29 This significant reduction in the ratio illustrates lawmakersâ&#x20AC;&#x2122; realization of the facts the 1986 law failed to grasp, including that crack and powder cocaine are equally harmful to users and are associated with similar amounts of violence in their trade. However, the reality is that the ratio should be 1:1 based on updated studies showing the effects of both of these drugs on users and the violence associated with their trafficking are the same. Moreover, even if the ratio was 1:1, that does not change the fact that federal mandatory minimums for drug crimes are not the best solution because of the prison overcrowding and negative effects on communities they cause. Many promising alternatives to mandatory minimums for drug crimes also exist within the federal system, but are not available to offenders whose offense mandates a mandatory minimum sentence. Whatâ&#x20AC;&#x2122;s more, evolving U.S. Sentencing Commission guidelines demonstrate that this entity, which the Sentencing Reform Act of 1984 established, is working to further soften the effects of harsh drug laws that have led to unjust outcomes.

26. Id. 27. Id. 28. Gary G. Grindler, Memorandum For All Federal Prosecutors, U.S. Department of Justice (August 5, 2010). 29. Id.

Federal Mandatory Minimum Sentences for Drug Crimes V.

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U.S. SENTENCING COMMISSION FINDINGS UNDERMINING FEDERAL MANDATORY MINIMUMS FOR DRUG CRIMES AND EFFECTS ON COMMISSION GUIDELINES

In a 2014 speech, then U.S. Sentencing Commission Chair and Chief U.S. District Judge for the District of Massachusetts the Honorable Patti B. Sarris outlined some of the Commission’s findings regarding federal mandatory minimums for drug crimes that informed changes in the Commission’s sentencing guidelines. One of the focus areas of the Commission studies was overcrowding in federal prisons, whose populations have tripled since 1989.30 This trend is driven in large part by drug offenders serving long sentences. As of Fiscal Year 2012, drug offenders made up 50.1 percent of the population of federal Bureau of Prisons facilities, which by that time were 32 percent over capacity.31 Saris also stated that sentences for drug crimes might be longer than they need to be in order to achieve, “public safety, justice, and deterrence.” This statement is supported by the Commission’s finding that different sentencing outcomes occur when prosecutors believe the lengthy mandatory minimums to be too harsh.32 This means that even with mandatory minimums, which are meant to make sentencing more uniform, vast sentencing disparities still result because administrators of the justice system do not believe in the sentencing policies that currently exist. Additionally, in 2007, the Commission shortened the guideline sentences for trafficking crack cocaine by an average of 27 months, and found that rates of recidivism were the same for the offenders with shorter sentences and those who served longer sentences before the 2007 amendment to the guidelines.33 This finding goes to show that shorter sentences can reduce prison overcrowding, free up more funding for other areas of law enforcement all while maintaining public safety. The fact that this entity created by the Sentencing Reform Act of 1984 has accepted these facts based upon their studies also illustrates the need for lawmakers to pass laws eliminating federal mandatory minimums for drug crimes. In 2011, the Commission’s report recommended to Congress that federal mandatory minimums for drug crimes should be decreased, the safety valve should be expanded, and that the Fair Sentencing Act of 2010 should be made retroactive.34 These recommendations came as a result of the fact 30. Patty B. Saris, A Generational Shift for Federal Drug Sentences, Vol. 52, United States Sentencing Commission Articles 1-24 (2015). 31. Id. 32. Id. 33. Id. 34. Id.

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that mandatory minimums for drug crimes have clearly led to prison overcrowding and unjust sentences for low-level, first-time offenders, and that the 1994 safety valve and the Fair Sentencing Act of 2010 have not had sufficiently wide-reaching results to solve the systemic problems initiated in 1986. In 2014 the Commission passed an amendment that lowered offense levels corresponding with mandatory minimum quantity triggers by two levels (this reduction did not apply to top level offenses).35 This retroactive amendment has resulted in the Commissionâ&#x20AC;&#x2122;s guideline sentencing range including the mandatory minimum sentence in a departure from the previous guidelines, which were slightly above the mandatory minimum.36 This new policy came as a result of the Commission realizing their old policy did not actually give offenders more incentive to cooperate, as seen by the fact that offender cooperation did not decrease after the 2007 amendment.37 The retroactive nature of the amendment means 46,000 old sentences could be decreased, as well as an estimated 6,500 new sentences over the five years following the amendment, producing a sizeable effect on federal prison overcrowding.38 These Commission guideline changes supplement the 1994 safety valve and the Fair Sentencing Act of 2010 in reducing prison overcrowding and alleviating the lengthy sentences some low-level, nonviolent drug offenders receive as a result of federal mandatory minimum sentences for drug crimes. However, laws should still be passed that concretely eliminate federal mandatory minimums for drug crimes and increase the availability of alternatives to incarceration for low-level, nonviolent offenders. Members of Congress on both sides of the aisle including Democrats Senator Durbin, Senator Leahy and Congressman Scott and Republicans Senator Lee, Senator Cruz and Congressman (now Speaker) Ryan have also supported legislation to reduce federal sentences for drug crimes, showing the bipartisan nature of the effort to alleviate the unjust effects of mandatory minimums for drug crimes.39

35. Id. 36. Id. 37. Id. 38. Id. 39. Patty B. Saris, A Generational Shift for Federal Drug Sentences, Vol. 52, United States Sentencing Commission Articles 1-24 (2015).

Federal Mandatory Minimum Sentences for Drug Crimes VI.

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ALTERNATIVES TO FEDERAL MANDATORY MINIMUM SENTENCES FOR DRUG CRIMES

Mandatory minimum sentences, which mandate the shortest length of time an offender can serve in prison based upon their crime, reduce a judgeâ&#x20AC;&#x2122;s ability to consider a caseâ&#x20AC;&#x2122;s unique circumstances during sentencing. This has proven to be an integral issue in federal drug crime sentencing, which mostly results in low-level, nonviolent offenders serving lengthy sentences. This result in turn leads to severe overcrowding in federal prisons. Alternatives to incarceration exist at the federal level, but are not available to offenders facing a mandatory minimum sentence.40 The result is that many low-level, nonviolent drug offenders, whose nonviolent crime would otherwise qualify them for alternatives to incarceration, are still forced to serve long sentences just because their crime happens to carry a mandatory minimum. The alternatives, which would be available to these offenders if federal mandatory minimums for drug crimes were eliminated, include probation, probation combined with the condition of home confinement and split sentences between prison and home confinement.41 A. Probation, Probation with the Condition of Home Confinement and Split Sentences The elimination of federal mandatory minimum sentences for drug crimes would allow low-level, nonviolent drug offenders who currently face lengthy prison sentences to have access to alternatives to incarceration that already exist at the federal level. These alternatives, which include probation, probation with the condition of home confinement and split sentences would ease low-level, nonviolent drug offendersâ&#x20AC;&#x2122; transition back to society, and would reduce overcrowding in federal prisons. A sentence of probation would allow low-level, nonviolent drug offenders to not serve any time in prison. However, these offenders would still face restrictions since they would be under probation, making it so that they are still serving time to pay for their crime, just not in prison. Probation with the condition of home confinement, or house arrest, is also a viable alternative to incarceration for low-level, nonviolent drug offenders because they would still be serving time in confinement, just at home and not in an overcrowded federal prison. Both probation and probation with the condition of home confinement would have a sizeable ef40. Alternative Sentencing in the Federal Criminal Justice System, United States Sentencing Commission (May 2015). 41. Id.

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fect on federal prison overcrowding if federal mandatory minimums for drug crimes were eliminated, because many of the offenders serving lengthy sentences in federal prisons are those facing mandatory minimums for low-level, nonviolent drug crimes. Another aspect of these alternative sentences that would benefit families and communities impacted by members who commit federal drug crimes is that by serving their sentences at home, low-level, nonviolent drug offenders can easily reintegrate into their communities instead of being forced away for years. Split sentences, the third alternative to incarceration that exists at the federal level but is not available to those whose crimes warrant a mandatory minimum sentence, allows offenders to serve a shorter term in prison followed by home confinement. This alternative would also be effective for low-level, nonviolent drug offenders whose crimes currently result in mandatory minimum sentences because these offenders would serve a shorter time in prison and then would reintegrate into their families and communities while still paying for their crime through home confinement. Split sentences, like the other two alternatives to incarceration, would also alleviate overcrowding in federal prisons because low-level, nonviolent drug offenders currently facing lengthy mandatory minimum sentences would be released from prison after a much shorter time period. Alternatives to incarceration have become increasingly available through the Sentencing Reform Act of 1984, the Anti-Drug Abuse Act of 1988, and evolving U.S. Sentencing Commission guidelines. However, federal mandatory minimums for drug crimes must be eliminated so low-level, nonviolent drug offenders currently facing long and unjust sentences that do not fit their crimes can have access to these beneficial alternatives. B. U.S. Sentencing Commission Adjustments Towards Alternatives to Incarceration Alternatives to incarceration gained momentum with the Sentencing Reform Act of 1984 which called for sentences other than prison time for first and nonviolent offenders, further illustrating the Anti-Drug Abuse Act of 1986â&#x20AC;&#x2122;s subversion of these ideals.42 The Anti-Drug Abuse Act of 1988 implemented home detention for those sentenced to probation, and the U.S. Sentencing Commission has adjusted its guidelines to incorporate alternatives to incarceration based on the severity of the crime, with higher level crimes still resulting in prison time.43

42. 43.

Id. Id.

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The United States Sentencing Commission’s proposed 2017 amendments to federal sentencing guidelines illustrate the Commission’s continuing resolve to make alternatives to incarceration more available to lowlevel, nonviolent offenders. The Commission is proposing to adjust the sentencing guidelines to allow low-level, nonviolent offenders with no or limited prior criminal records, known as “first offenders,” to be eligible for shorter periods of incarceration or for alternatives to incarceration such as house arrest. These proposals came as a result of a Commission study showing rates of recidivism for “first offenders” to be lower than all other groups of offenders, and a Commission study evaluating alternatives to incarceration.44 Current and proposed U.S. Sentencing Commission guidelines working towards alternatives to incarceration for low-level, nonviolent offenders illustrates the need for lawmakers to pass legislation discontinuing federal mandatory minimums for drug crimes altogether. However, due to the transition from President Obama to President Trump, it appears as though federal mandatory minimums may remain in the justice system for quite a long time regardless of the progress that has been made.

VII.

PRESIDENT OBAMA’S LEGACY AND THE IMPLICATIONS OF THE OBAMA TO TRUMP TRANSITION

A. President Obama’s Legacy President Obama commuted more sentences than the last dozen presidents combined, including a record-breaking one-day total of 330 on his last day in office, bringing the final number to 1,715.45 The last group of commutations was for non-violent drug offenders, continuing a trend from many of Obama’s previous commutations.46 President Obama advocated for legislation to close the gap between crack and powder cocaine sentencing, and many of his commutations were granted to crack cocaine offenders.47 Obama also hoped for sentencing reform that would move toward 44. Proposed Amendments to the Sentencing Guidelines, United States Sentencing Commission (Dec. 19 2016). 45. Sari Horwitz, Obama Grants Final 330 Commutations to Nonviolent Drug Offenders, The Washington Post (Jan. 19 2017), https://www.washingtonpost.com/world/nationalsecurity/obama-grants-final-330-commutations-to-nonviolent-drug-offenders/2017/01/19/415 06468-de5d-11e6-918c-99ede3c8cafa_story.html?utm_term=.96b86aff69c9. 46. Id. 47. Kevin Liptak, Obama Cuts Sentences of Hundreds of Drug Offenders, CNN (Jan. 17, 2017), http://www.cnn.com/2017/01/17/politics/obama-cuts-sentences-of-hundredsof-drug-offenders/.

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the goal of eliminating mandatory minimums for nonviolent drug crimes.48 While these goals were not fully realized during his tenure, due to the need for Congress to enact such legislation, his commutations of many nonviolent drug offenders clearly illustrate his policy and the legacy he wished to leave in terms of sentencing for drug crimes and the federal government’s war on drugs. Although his commutations will only make a minor dent in prison overcrowding, they set an example for using the presidential power of commuting and even pardoning crimes to bring attention to the unjust nature of federal mandatory minimum sentences for drug crimes. B. Implications of the Obama to Trump Transition President Trump has not presented a clear plan for commutations, but there are concerns among clemency advocates that Trump, who ran as a “law and order” candidate, will not continue Obama’s agenda.49 Furthermore, Trump’s Attorney General, former United States Senator from Alabama Jeff Sessions, has argued that President Obama’s commutations have led to the release of “high-level” offenders and that “low-level, nonviolent offenders. . .simply do not exist in the federal system.”50 An Attorney General with these beliefs can have wide-reaching effects on the criminal justice system during Trump’s presidency because the Attorney General can direct United States Attorneys on how to pursue charges and sentences, meaning Sessions could direct the Justice Department toward pursuing more drug charges carrying lengthy sentences.51

VIII.

CONCLUSION

The Sentencing Reform Act of 1984 was aimed towards improving the federal judicial system by mitigating sentencing disparities. However, the rise of federal mandatory minimums for drug crimes, especially those initiated by the Anti-Drug Abuse Act of 1986, have caused outcomes that are anything but judicial. The 1986 law created a 100:1 ratio for the quantities of powder and crack cocaine that would trigger a mandatory minimum sentence based upon the false assumption that crack cocaine had much worse effects on users and was associated with more crime in its trafficking. This law has also caused wide racial disparities in sentencing with the 48. Id. 49. Id. 50. Sessions: President Obama’s Unprecedented Commutations of Violent Drug, Gun Felons Will Inflict Long-Term Harm on the Nation, sessions.senate.gov (Aug. 5, 2016). 51. Eli Hager, et. al, 8 Ways Jeff Sessions Could Change Criminal Justice, The Marshall Project (Nov. 18, 2016).

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majority of individuals charged with crack cocaine crimes being black when the reality is that the majority of crack users are white or Hispanic. Since the passage of the 1986 law, Congress has attempted to soften some of its provisions through the federal safety valve of 1994 and the Fair Sentencing Act of 2010. However, the safety valve has precise conditions that must be met for offenders to qualify, which severely limits its effectiveness in allowing courts to take special circumstances into account when sentencing. The Fair Sentencing Act of 2010, while reducing the ratio for the mandatory minimum triggering amounts between powder and crack cocaine to 18:1, still falls flat in solving the worst problems the 1986 law caused. The powder to crack cocaine mandatory minimum-triggering ratio should be 1:1 since powder and crack cocaine have the same effects on users and within the drug trade. Furthermore, even a 1:1 ratio would not solve the problem of federal mandatory minimums not being the best option for low-level, nonviolent drug offenders. Further evidence that federal mandatory minimums for drug crimes need to be eliminated comes from the U.S. Sentencing Commission, which in recent years has shortened many sentences for drug offenders and has called for Congress to shorten mandatory minimums for drug crimes, expand the safety valve, and to make the Fair Sentencing Act of 2010 retroactive. There are also many possible alternatives to incarceration at the federal level including probation, probation with the condition of home confinement and split sentences of a short prison term followed by home confinement. All of these alternatives should be made available to lowlevel, nonviolent drug offenders currently facing mandatory minimums sentences through eliminating federal mandatory minimums for drug crimes altogether. Although President Obama personally took action by commuting the sentences of 1,715 offenders, the majority of whom were non-violent drug offenders, the future of this approach is uncertain under President Trump. This is especially true because Trumpâ&#x20AC;&#x2122;s Attorney General, Jeff Sessions, is vocally opposed to Obamaâ&#x20AC;&#x2122;s approach and could direct the Justice Department towards more aggressively pursuing federal drug crimes that carry mandatory minimum sentences. Eliminating federal mandatory minimum sentences for drug crimes is essential because these sentences have brought about racial disparities in prosecution, have harmed communities by locking community and family members up for years, and have led to extreme levels of overcrowding in federal prisons. Furthermore, the fact that alternatives to incarceration already exist at the federal level for other low-level, nonviolent offenders illustrates that viable options for sentencing would exist if federal mandatory minimum sentences for drug crimes were eliminated.

THE STRUGGLE FOR HONG KONG’S AUTONOMY UNDER THE PEOPLE’S REPUBLIC OF CHINA’S RULE: HOW CAN INTERPRETATIONS OF HONG KONG’S BASIC LAW BE JUSTIFIED?

Kyle Lo*

The Basic Law acts as Hong Kong’s constitutional document and has been the source of controversy due to the differing interpretations of the “one country, two systems” principle. The first section explores the influence of the People’s Republic of China’s (PRC’s) socialist 1 law principles in challenging Hong Kong’s common-law system, the legal system protected by the Basic Law. An example of this is the executive-led system, when the executive branch legally has more authority relative to the legislature. This creates an unequal balance of power between the two branches and acts as an instrument in which the PRC exerts its influence through a mainland approved Chief Executive. In addition, the executive branch has used its relative authority to interfere in the judiciary. Such intervention threatens the rule of law, specifically the separation of powers based on commonlaw principles. The second part of the article argues that the final interpretive powers of the Standing Committee of the National People’s Congress (NPCSC), the PRC’s agency with judicial powers over Hong Kong, jeopardise the independence of Hong Kong’s judiciary, the Court of Final Appeal (CFA). Finally, PRC intervention threatens the promise of eventual universal suffrage as founded in the Basic Law. The resulting interpretations over the executive-led system, balance of power between the NPCSC and CFA, and the extent of progress of universal suffrage have far-reaching implications for the future of Hong Kong’s autonomy.

* Kyle Lo is a second-year at UCLA majoring in Business Economics, minoring in Global Studies and Atmospheric & Oceanic Sciences. His academic interests lie at the intersection of economics, politics and law, especially in Hong Kong’s context. He is on the recruitment committee of Pi Sigma Epsilon, a business and marketing fraternity and plans to pursue a JD. He expresses his sincerest gratitude to his editor, Vanessa Young. Editor: Vanessa Young is in her second year at UCLA, studying History and Global Studies. After attending law school, she hopes to pursue a career in law and public policy. 1. The term to describe PRC’s law system is debated, varying between civil and socialist. This paper shall refer to the PRC’s law system as socialist. Some of the characteristics in this system include a powerful legislature compared to the judiciary, putting the importance of policy making over the enforcement of law and the absence of precedential concept for case law.

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The Struggle for Hong Kong’s Autonomy I.

83

INTRODUCTION

“Nowhere are the unique characteristics (and consequent contradictions) of the Basic Law as an enactment of the socialist, civil law oriented and somewhat authoritarian People’s Republic of China, for the purpose of safeguarding capitalism and preserving of the common-law, more evident than in its provisions for interpretation.”2 —Yash Ghai After years of British colonial rule, the 1984 signing of the Sino-British Joint Declaration established Hong Kong’s autonomy and governance under PRC rule. In the decades prior to the planned handover, the British government and the people of Hong Kong feared their legacy and way of life would be drastically changed once the socialist PRC resumed control over Hong Kong. These fears were allayed when the Sino-British Joint Declaration was signed and it was agreed that the “one country, two systems” principle would be enacted. This principle articulates that the PRC has sovereignty over the region but Hong Kong can retain their own economic, political, legal and financial systems. “One country” embodies the PRC’s interest in asserting more control over Hong Kong by shifting its political and legal ideals to more closely resemble the mainland. At the same time, “two systems” enshrines Hong Kong pro-democracy interest in protecting capitalism and political autonomy. While the PRC has sovereignty over Hong Kong, I argue that the PRC should not use its authority to mischaracterize the intent of the Basic Law in its favour, as it must respect the autonomy granted to Hong Kong by the Basic Law. These contentious, highly political interpretations of the Basic Law have momentous consequences for future autonomy, as well as for other aspects of Hong Kong’s economic, political and social structure. The balance of power between “one country” and “two systems” is a precarious tension, and one that is crucial to understanding how interpretations of the Basic Law can be justified and how these interpretations could and already have affected the balance of power between Hong Kong and the PRC. The two very distinct legal, political, and social systems3 embodied by the PRC and the HKSAR governments inevitably lead to confrontation over the separation of powers. The resolution of this debate is critical for 2. YASH GHAI, HONG KONG’S NEW CONSTITUTIONAL ORDER: THE RESUMPTION OF CHINESE SOVEREIGNTY AND THE BASIC LAW 185. (Hong Kong University Press, 2nd ed. 1997). 3. HUALING FU, LISON HARRIS & SIMON N. M. YOUNG, INTERPRETING HONG KONG’S BASIC LAW: THE STRUGGLE FOR COHERENCE 1 (Hualing Fu et al. eds., Palgrave Macmillan, 2007).

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determining the future direction of Hong Kong. On the one hand, the PRC wants to move Hong Kong closer to its socialist legal system and way of life, in the long-term hope of total reunification with China. The PRC has thus curbed Hong Kong’s democratisation, viewing democracy as economically destabilising and as possibly pro-independence, both of which would pose threats to reunification. On the other hand, Hong Kong’s pro-democracy supporters desire not only the preservation of the capitalist system, civil liberties and the common-law, but also advocate for greater democratisation, such as fair, direct elections. Although the Basic Law does define and separate the powers of the PRC and HKSAR government in detail, there are still some obscure and broad terms that require legal interpretation. The two institutions with jurisdiction to interpret the Basic Law are Hong Kong’s Court of Final Appeal (CFA) and the PRC’s Standing Committee of the National People’s Congress (NPCSC).4 The PRC has granted the CFA a large amount of freedom in Hong Kong to interpret the law on matters other than defence and foreign affairs; however, the NPCSC has final interpretive powers and may intervene in Hong Kong’s judiciary when it sees necessary. The lack of finality in CFA interpretations has serious implications for the judiciary and for Hong Kong’s autonomy under the “one country, two systems” principle. Hong Kong’s preservation of common-law principles, enshrined in the Basic Law, and advocacy of democratisation both depend on the balance of power between the CFA and NPCSC. Hence, the final results of controversial cases that test this balance of power, such as the Right of Abode case, will define the future relationship between Hong Kong and the PRC, as well as whether total reunification can be achieved while protecting Hong Kong’s capitalist system and political autonomy.

II.

PRESERVATION OF THE COMMON-LAW AND SEPARATION POWERS: THE DOMINANCE OF THE AGENCIES OF “ONE COUNTRY” OVER “TWO SYSTEMS”

OF

The influential executive-led system in Hong Kong governance threatens to subordinate a weak legislature and its power to interfere in the judiciary endangers the separation of powers. Article 8 of the Basic Law states, “[t]he laws previously in force in Hong Kong, that is, the common-law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law.”5 This provision 4. 5.

Id. at 2. THE BASIC LAW OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PEOPLE’S REPUBLIC OF CHINA [CONSTITUTION] Apr. 4, 1990, art. 8.

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creates a legal basis for the protection of the separation of the executive, legislative and judicial branches, based on common-law principles. Common-law characteristics are grounded in a “system of checks and balances based on the separation of powers,” providing further evidence that the separation of powers between the government branches is fundamental to the common-law.6 Taking a closer look at the balance of powers in Hong Kong, the executive-led7 system can be summarized with how the Chief Executive decides government policies and approves the introduction of motions regarding revenues or expenditure to the Legislative Council (LegCo).8 This description suggests the Chief Executive is vested with a substantial amount of power in the legislative arena, including the dissolution of LegCo and the ability to stop motions relating to finance and political policy before they are even introduced. Additionally, the fact that the Chief Executive is appointed and endorsed by the PRC means the executive branch is highly likely to be mainland-orientated and thus privy to ensuring legal interpretations align with PRC interests. Scholar Yash Ghai points out an inherent problem in trying to balance PRC interests with Hong Kong’s autonomy, highlighting the clash between PRC’s socialist law and Hong Kong’s common-law. Ghai notes that socialist rule is “based on the rejection of the separation of powers and the unification of all state power in the legislature.”9 Therefore, the PRC insists the NPC, the mainland legislature, has ultimate authority over all Hong Kong branches, including the executive branch. The PRC uses the NPC’s ultimate authority as an agent to further mainland interests not only in its powers of final interpretation, but also by ensuring the PRC-backed executive branch maintains legal authority over Hong Kong’s legislature and judiciary. The executive branch has interfered with the judiciary, such as in the Right of Abode case, proving that the executive branch has violated the commonlaw principle of separation of powers. Hong Kong’s strong executive branch headed by a PRC-approved Chief Executive has led to a legally unfounded executive-led system that upholds the PRC’s interests while overlooking the guiding legal principles of Hong Kong’s common-law system.

6. FU, supra note 3, at 2. 7. The term “executive-led” refers back to colonial times when LegCo consisted of members appointed by the Governor. Although the term is not used in the Basic Law, it is commonly used to describe how LegCo played a subsidiary organ to the Governor. 8. LO PUI YIN, THE JUDICIAL CONSTRUCTION OF HONG KONG’S BASIC LAW: COURTS, POLITICS AND SOCIETY AFTER 1997 35 (Hong Kong University Press, 2014). 9. FU, supra note 3, at 125.

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A. The Executive-Led System and the Legislature From the PRC’s perspective, the executive-led system is crucial in the conservation of PRC influence over Hong Kong and the stability of the political system. Wu Bangguo, former Chairman of the NPCSC has stressed, “the biggest feature of the political structure of the HKSAR is that it is executive-led”10, thus indicating that the uneven balance of power is an inherent and deliberate feature of Hong Kong’s political landscape. The executive-led system ensures the HKSAR government’s policies are in line with PRC interests, namely, the goal of total reunification. The executive branch keeps the rest of the Hong Kong government in check and prevents it from developing elements of self-governance, which would violate the PRC’s conception of “one country.” The executive branch’s vast powers over the legislature mean policies are generally consistent with PRC’s interests, promoting stability for Hong Kong. Thus, Chinese scholars believe the executive-led system is justified in its role in providing the PRC an agency to keep Hong Kong political development in check with PRC interests. Furthermore, Article 74 of the Basic Law provides constitutional support for the executive-led system, as it “requires members of LegCo to obtain the Chief Executive’s approval before they can introduce bills involving public expenditure or political policy.”11 This means that the Chief Executive can block the introduction of bills involving expenditure, political structure and governmental operations initiated by the legislature, thus limiting the legislature’s proactive powers. Therefore, the Chief Executive’s ability to inhibit legislature’s initiatives in key government policy making is inherent and granted by Article 74. Seeing as the executive-led system subjugates the legislative branch, the legislature appears to be an ineffective check against the executive branch. This violates common-law principles, as there is an imbalanced separation of power between the legislature and the executive branch. As a result of the executive branch’s higher standing, the legislature is forced to accept a more passive role in providing a check against the Chief Executive. Scholar Gu Yu confirms that LegCo only has reactive powers, affirming the inability of the legislature to introduce bills and only having the ability to react to the Chief Executive’s initiatives. Yu explains, it is “obvious that LegCo members have little proactive power such as power to propose bills, and are even undergoing a shift towards reactive if not passive 10. GU YU, HONG KONG’S LEGISLATURE UNDER CHINA’S SOVEREIGNTY: 1998-2013 2 (Brill Nijhoff, 2015). 11. FU, supra note 3, at 85.

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functions.”12 Yu describes the legislature as having passive functions, meaning it is only able to observe the dominance of executive branch in introducing government policy bills. Since having an effective legislature is key to sustaining the rule of law and separation of powers, the legislature must have at least reactive powers, where the legislature can respond to, but not initiate, political policies. Scott Morgenstern suggests, “an important role in the legislative process does not always require proactive powers - the ability to initiate legislation but stem from the ability to shape or kill executive proposals.”13 Morgenstern’s argument justifies the legislature’s lack of proactive powers, as long it still has the ability to prohibit Chief Executive initiatives. He provides a moderate stance, between the views of the PRC and pro-democracy scholars, in arguing that the executive-led system may be justified by the legislature’s power to react to the executive policies, even if it lacks proactive powers. Hence, Morgenstern believes the legislature should have at least reactive powers in order to achieve a balanced separation of powers based on the common-law. However, LegCo’s reactive powers are not enough to keep the Chief Executive in check, as it is unable to introduce bills regarding expenditure and political policy, which are crucial aspects of the legislature’s function in the common-law. Professor Polby believes “administrative and financial autonomy is ‘a necessary condition for the full exercise of its powers by a Parliament.”14 Polby argues the legislature must have the ability to initiate changes to government policy, including public expenditure, in order to provide an effective, robust check against the executive. The limitations imposed on LegCo make it impossible to propose legislation in support of the “two systems” principle, such as accelerating the progress of universal suffrage, protecting civil liberties and ensuring social welfare, if the executive-led system persists. The executive-led system was designed to prevent the legislature from furthering “two systems,” leaving it merely as a reactive actor under the leadership of “one country.” Evidently, Polby takes the concept of separation of powers further than Morgenstern in that a balanced separation of powers based on the common-law must require the legislature to have proactive powers with regards to policies inhibited by Article 7415 The executive-led system inhibits the advocacy of “two sys12. 13. 14. 15.

GU YU, supra note 10, at 221. Id. at 9. GU YU, supra note 10, at 5. THE BASIC LAW OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION OF THE PEOPLE’S REPUBLIC OF CHINA Apr. 4, 1990, art. 74, (Article 74 requires that bills which do not relate to public expenditure, political structure or the operation of the government be introduced individually or jointly by members of the Council. The Chief Executive’s written consent shall be required before bills relating to government policies are introduced).

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tems” and allows for the PRC to meddle in local politics. Although the executive-led system is supported by Article 74, LegCo’s inability to be proactive in government policy means the executive-led system violates the common-law. B. The Executive-led System and the Judicial Branch The Chief Executive has overstepped its legal powers in interfering with the judiciary, further undermining the separation of powers and thus the executive-led system is legally unfounded in terms of common-law principles. Article 19 (1) states, “[t]he Hong Kong Special Administrative Region shall be vested with independent judicial power, including that of final adjudication.”16 The judiciary should be completely independent and free from any interference by the executive branch, even more so than the legislature. The judiciary’s independence and autonomy is backed by Article 19 and the Basic Law’s enshrined principle of separation of powers. However, the Chief Executive violated the independence of Hong Kong’s judiciary once in the Right of Abode case of 1999. The case set a dangerous precedent for the executive branch to potentially interfere in future cases. Although the executive branch is granted clear legal authority over the legislature, this is not the case with the judiciary as it has specifically been granted independence in Article 19. Therefore, the executive-led system overstepped its legal authority with the Hong Kong’s courts in this case and threatens to create an unfair balance of power between government branches. C. The Right of Abode Case: Executive Interference in the Judiciary The Right of Abode Case ignited a debate over who had the right of abode in Hong Kong and culminated in the 1999 CFA verdict on the Ng Ka Ling vs Director of Immigration case.17 The CFA ruled that all children, irrespective of whether their parents were permanent residents of Hong Kong, or whether they were born out of wedlock, were entitled to the right of abode. This ruling stated that the Immigration (Amendment) Ordinance18, passed by the Provisional Legislative Council19 of Hong Kong, vio16. THE BASIC LAW OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION OF THE PEOPLE’S REPUBLIC OF CHINA Apr. 4, 1990, art. 19. 17. Ng Ka Ling v. Director of Immigration (1999) 2 HKCFAR 4 (H.K.). 18. The Immigration (Amendment) Ordinance was a reaction to 380 children who had previously entered Hong Kong illegally, demanded their right of abode just days after the handover of Hong Kong to China on 1 July 1997. The Provisional Government stipulated that even though these children were entitled to the right abode, they were to be repatriated

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lated the Basic Law, and thus the Immigration Ordinance failed to apply to these children.20 In response to the verdict, the HKSAR government estimated that immigration would potentially rise from the original estimate of 66,000 to 1.67 million second-generation mainland children. This potential influx would overburden Hong Kong’s economic and social infrastructure, with an estimated cost of HK$710 billion to meet the needs of prospective immigrants.21 The report by the Census and Statistic Department outlining these costs horrified the Hong Kong population, as citizens feared a potential decline in economic circumstances. The public was initially deeply concerned by the PRC’s role in establishing the Immigration Amendment Ordinance, as evident by the drop of “21.7 percent” in confidence in the “one country, two systems” principle.22 Additionally, general public opinion on the CFA verdict quickly deteriorated following the report of possible economic and social consequences.23 After considering a few options, including an amendment to the Basic Law, the Chief Executive requested a reinterpretation of the CFA verdict from the NPC. The NPCSC overturned the CFA verdict and passed an interpretation similar to that of the Immigration Amendment Ordinance. The NPCSC’s interference occurred despite a letter signed by 283 lawyers asking the NPCSC to refuse reinterpretation. The Right of Abode case demonstrated the interference of the executive branch in its request to for NPC reinterpretation and challenged the finality of the CFA’s interpretation, regardless of social and economic consequences. The executive branch’s request for reinterpretation by the NPCSC on the CFA verdict was a crucial turning point with regards to the balance of power between the executive and judicial branches. The Chief Executive’s request was unprecedented and violated the independence of the judiciary. Although the verdict reached by the CFA would have granted immediate right of abode to up to 300,000 people, which would have potentially back to China to apply through formal channels and the responsibility to assess eligibility and grand permission to enter Hong Kong was still under the jurisdiction of the Chinese authorities. As it was viewed that the amendment was as infringement on the constitutional rights of legitimate residents, the case was passed to the Hong Kong courts which led to the CFA verdict. 19. The Provisional Legislative Council (PLC) was an interim legislature of Hong Kong from 1997 to 1998. It temporarily fulfilled the role of the Legislative Council until one could be elected after the handover. The PLC was elected by the 400-member Selection Committee, an electoral college handpicked by the PRC. 20. WONG YIU CHUNG ET AL., “ONE COUNTRY, TWO SYSTEMS” IN CRISIS: HONG KONG’S TRANSFORMATION SINCE THE HANDOVER 105 (Wong Yiu Chung ed., Lexington Books, 2004). 21. Id. at 107. 22. WONG, supra note 20, at 106. 23. Id. at 108.

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caused economic and social stress on Hong Kong, the Chief Executive’s action was an encroachment on the separation of power between the branches. Scholar Wong Yiu Chung backs this argument, explaining that the request to reinterpret was a “gross violation of the common-law tradition [executive requesting to change the verdict]”24 and “set a precedent for the executive branch’s intervention in the otherwise judicial process within Hong Kong.”25 The Right of Abode case showcases the interference of the executive branch into an independent judiciary, subsequently undermining the rule of law and separation of power. This violates Article 19 of the Basic Law which grants the judiciary with independent judicial powers and Article 85 which states that, “The courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference.”26 Although the HKSAR government has argued the Right of Abode case represents an exception, it set a dangerous precedent for future executive branch intervention, as it subjectively relies on the Chief Executive’s restraint and judgement. The executive branch’s interventionist role in the Right of Abode case demonstrates that the common-law traditions of rule of law are under threat. The political influence of the PRC via the agency of the Chief Executive puts the “one country, two systems” principle at risk.

III.

BALANCE

INTERPRETIVE POWERS THE NPCSC AND CFA OF

BETWEEN

The NPCSC is vested by the Basic Law with ultimate power to interpret the Basic Law, and although the NPCSC does not intervene in day-today affairs of the CFA, the rare instances in which it does challenge the autonomy of the CFA. As the contrasting ideologies and political motives of the NPCSC and CFA inevitably lead to disagreements over interpretation of the Basic Law, the ultimate interpretative powers of the NPCSC may lead to suppression of CFA autonomy, and therefore of the “two systems” principle of autonomy. These often clashing beliefs stem from the different legal systems of the mainland and Hong Kong. The mainland legal system, often described as socialist or civil, is based “essentially on democratic centralism, socialist legality, and the Stalin constitution”27 and “on [the] dictatorship of the Communist Party, [the] subordination of state 24. 25. 26.

Id. at 4. Id. at 14. THE BASIC LAW OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PEOPLE’S REPUBLIC OF CHINA Apr. 4, 1990, art. 19, 85. 27. YU, supra note 10, at 5.

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organs, including the judiciary, supremacy of policy over the law.”28 In contrast, the common-law upholds “democracy, rule of law, limitation of state power”29 The two legal systems clash especially on the subjects of judicial independence and respect for the law when implementing government policies. Thus, the differing legal systems often lead to conflicting interpretations of the Basic Law. A. The NPCSC’s Final Interpretive Powers of the Basic Law Chinese scholars argue the NPCSC is justified in its ultimate interpretive powers of the Basic Law and even in overturning CFA verdicts. Article 19(3) states, “[t]he courts of the Hong Kong Special Administrative Region shall have no jurisdiction over acts of state such as defence and foreign affairs.”30 Wang Yu specifically has indicated that the other “acts of state” envisaged in Article 19 (3) should include the establishment of the HKSAR by the Central Authorities, the enactment and amendment of the Basic Law, the interpretation of the Basic Law, appointment of the Chief Executive and principal officials of the government, the decision to apply relevant international treaties to Hong Kong.31 Most notably, Wang Yu argues that interpretations of the Basic Law should be the duty of the NPC as it falls under the jurisdiction of “acts of state.” Under this interpretation, the NPC may be justified in having final interpretive powers of the Basic Law. Moreover, according to Chinese scholars, the NPCSC is further justified in having final interpretive powers as it does not regularly intervene in the daily judicial affairs of Hong Kong, reserving its right to interpret for when the fundamental principles of “one country” are violated. Former paramount leader Deng Xiaoping argues: The central government certainly will not intervene in the day-to-day affairs of the special administrative region, nor is that necessary. But isn’t it possible that something could happen in the region that might jeopardize the fundamental interests of the country?32 28. 29. 30.

FU, supra note 3, at 126. See id. THE BASIC LAW OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PEOPLE’S REPUBLIC OF CHINA Apr. 4, 1990, art. 19. 31. LO, supra note 8, at 361. 32. WONG, supra note 20, at 39.

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According to Deng Xiaoping, even though the NPCSC has ultimate interpretive powers, it will only intervene when the “one country” principle is under threat. Moreover, the PRC leaves the management of daily affairs to the HKSAR government, in accordance with the high degree of autonomy granted to the region under the Basic Law. Thus, the NPCSC is justified in having final interpretive powers based on the protection of the “one country” principle and the fact that the NPCSC does not affect Hong Kong’s day-to-day legal processes, intervening in the CFA only when fundamental PRC interests are violated. Given the NPCSC’s final interpretive powers, Robert Morris argues that CFA judges should seriously consider the socialist interpretation of cases to avoid confrontation and NPCSC reinterpretation. Morris states: The goal of the dialectic to be ‘inevitable’ assimilation of Hong Kong and perfect re-unification with the PRC under the leadership of the Chinese Communist Party. The Basic Law was intended to bring the system in the HKSAR closer to the system of the PRC and the thinking of judges and lawyers should ‘go beyond their common-law thinking’ and grasp, if not follow, this intent.33 According to Morris, the goal of reunification is of greater importance than Hong Kong’s right to the common-law, thereby justifying the PRC socialist interpretation of the Basic Law. However, following Morris’ suggestion would be an outright concession of independence by the CFA and would place Hong Kong’s common-law system in grave danger. It would set in motion the dismantlement of common-law principles, such as the fair separation of power between branches, and would lead to the eventual collapse of “two systems.” Gu Yu points out that the “Court of Final Appeal is deeply concerned about conceding autonomy to the Central Authorities.”34 CFA’s protection of the common-law system represents a crucial aspect of the “two systems” principle. Hence, Morris’ suggestion to accept the NPCSC’s final interpretive powers and use socialist interpretations as a means of avoiding confrontation would undercut the CFA’s autonomy, leading to the collapse of the “two systems” principle. A. The NPCSC’s Final Interpretive Powers Threaten CFA Autonomy In contrast, scholars such as Wong Yiu Chung and Yash Ghai believe the ultimate interpretive powers of the NPCSC threaten the autonomy of the CFA. Article 19 (1) and 19 (2) outline: 33. 34.

LO, supra note 8, at 23. YU, supra note 10, at 11.

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[t]he Hong Kong Special Administrative Region shall be vested with independent judicial power, including that of final adjudication. The courts of the Hong Kong Special Administrative Region shall have jurisdiction over all cases in the Region, except that the restrictions on their jurisdiction imposed by the legal system and principles previously in force in Hong Kong shall be maintained.35 Yash Ghai argues that these provisions, along with the Joint Declaration, were widely understood in Hong Kong to affirm the HKSAR’s powers of interpretation of constitutional documents. In addition, Ghai affirms the CFA’s right to interpret the law is upheld by the Joint Declaration’s provision that the common-law should remain unchanged and that interpretation of the Basic Law is a matter for the courts.36 Ghai’s explanation suggests that under common-law practice, the CFA should have independent interpretive powers, as the common-law stresses interpretation is a matter for the judicial branch, not for the NPC, a legislative institution. Furthermore, Chinese scholar Cheng Jie notes, “in terms of devolution, Beijing has reserved powers over both the executive and legislative institutions of Hong Kong. Only judicial power is thoroughly devolved.”37 Based on Cheng’s understanding of the separation of power, the Hong Kong courts should be autonomous from the PRC. This provides further proof that Beijing should not interfere with Hong Kong’s judiciary. Drawing from the Joint Declaration and Article 19 (1)(2), the CFA should have independent judicial power and adjudication, and granting the NPCSC interpretive powers threatens to violate these legal documents and their intentions. Given the NPCSC’s ultimate interpretive powers, scholars like Ghai have stressed that open-ended terms in the Basic Law, such as “acts of state,” are manipulated by the PRC to safeguard mainland interests. Hong Kong court’s Senior Counsel Denis Chang argues, “propositions like ‘a high degree of autonomy’ are each ‘indeterminate and open to manipulation; each is capable of becoming more determinate and is currently being manipulated.”38 Through the ultimate interpretive powers of the NPCSC and the executive-led system, the mainland takes advantage of these openended terms or propositions to advance PRC interests. The PRC’s interpretation of the “one country, two systems” principle, as delineated in a 35. THE BASIC LAW OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PEOPLE’S REPUBLIC OF CHINA Apr. 4, 1990, art. 19. 36. GHAI, supra note 2, at 196. 37. LO, supra note 8, at 62. 38. Id. at 35.

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White Paper39, provides a clear example of the PRC exploiting its authoritative position in Hong Kong. Issued on 10 June 2014,40 the White Paper articulates Beijing’s current policy towards Hong Kong by reaffirming PRC’s sovereignty and the importance of “one country.” Gu Yu believes the “overwhelming dominance of ‘one country’ over ‘two systems’ will inevitably increase the Chief Executive’s dependence on the CPG [Central People’s Government].”41 This suggests that the consolidation of PRC influence over Hong Kong leads to an executive-led system that further aligns with PRC interests. The declaration also characterises universal values such as democracy are unpatriotic and foreign. The White Paper provides concrete evidence of the PRC’s use of its authority to exploit openended terms or propositions to its advantage. Although the NPCSC has authority to issue stand-alone interpretations like this White Paper, the agencies of “two systems” are powerless to uphold their interests. The NPCSC’s ultimate authoritative powers undermine “two systems,” as open-ended terms are interpreted to favour the PRC. Hence, the intention of principles such as “one country, two systems” envisaged at the drafting of the Basic Law can be and often is manipulated in favour of PRC interests. Furthermore, Ghai adds that any NPCSC intervention is legally unjustified due to the body’s non-judicial nature. As only judicial bodies should have the right to intervene in cases, Ghai affirms that NPCSC intervention violates common-law principles: The NPCSC is primarily a political body under the direct control of the Communist Party and ensures that its policies are implemented. It has no juridical techniques geared towards principled interpretation. Its proceedings are not open to the public and the process of reaching a decision is confined to a small number of officials. . .eliminating autonomy.42

39. White Paper on the practice of the “One country, two systems” Policy in the HKSAR: According to the White Paper, ‘loving the country is the basic political requirement for Hong Kong’s administrators’, who also have a responsibility to safeguard ‘the country’s sovereignty, security and development interests and [to ensure] the long-term prosperity and stability of Hong Kong’. The White Paper also sheds light on the necessity ‘to stay alert to the attempt of outside forces to use Hong Kong to interfere in China’s domestic affairs, and prevent and repel the attempt made by a very small number of people who act in collusion with outside forces to interfere with the implementation of “one country, two systems” in Hong Kong’. 40. YU, supra note 10, at 229. 41. See id. 42. GHAI, supra note 2, at 138.

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The fact the NPCSC comes to interpretations based on its interest in implementing policy over law violates common-law traditions, resulting in legally unfounded NPCSC interpretations. However, the Basic Law does grant the NPCSC interpretive powers in matters of acts of state, such as defence and foreign affairs, in which the CFA must refer the ruling to the NPCSC. As the NPCSC resides outside Hong Kong, it is not bound by common-law principles but by socialist law. Thus, the NPCSC is allowed to reach verdicts based on the needs of policy, rather than based on the law. This complication demonstrates the importance of defining which cases are excluded from the CFA’s jurisdiction, so that cases that rightfully belong to the CFA do not get passed to the NPCSC unnecessarily. It seems Ghai’s argument implies the Basic Law grants interpretive powers to both the CFA, the judiciary, and the NPCSC, a legislative body, is itself against the principles of the common-law. However, as the NPCSC lies outside the common-law, Ghai’s argument does not apply to the NPCSC. Therefore, his argument does not give evidence that the NPCSC is acting unjustly in its interpretive powers due to the powers given to it by the Basic Law. Therefore, the mere fact that the NPCSC is a legislative body with the power to interpret a constitution does not violate the common-law, because the NPC derives its authority from the PRC and the Basic Law grants the NPCSC interpretive powers. Rather, the danger is that the NPCSC can use its interpretive powers to manipulate open-ended terms to widen its jurisdiction over the CFA and Hong Kong. B. Right of Abode Case: NPCSC Intervention into a CFA Verdict This section follows from the Right of Abode case in section II that argued against executive branch interference in the judicial branch. The Right of Abode case also demonstrated the dangers of NPCSC intervention into a CFA verdict. During the case, the CFA held in its statement that it is “for the CFA and for it alone to decide, in adjudicating a case, whether the classification condition is satisfied, that is, whether the provision is an excluded provision”43 Article 19 defines excluded provisions as categories like “acts of state,” in which the CFA has no jurisdiction and must refer to the NPCSC for a ruling. The CFA ruled that the Right of Abode case did not constitute an excluded provision, thus granting itself the power to decide whether a case was an excluded provision or not; hence, the CFA did not have to refer the case to the NPCSC for interpretation. Mainland lawyers were infuriated by the CFA’s verdict and its failure to refer the case to the NPCSC, and in response, four of them publicly 43.

LO, supra note 8, at 354.

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criticised its ruling as a violation of NPCSC and CFA relations. The NPCSC’s subsequent reinterpretation centred on the economic and social consequences of immigration, instead of providing explanations based on immigration law. The explanation of the NPCSC ruling based on the needs of fulfilling policy rather than reflecting the law, violates the common-law principles of Hong Kong embodied in Article 19(2). In retrospect, the CFA may have overstepped its judicial powers by releasing the statement asserting its power to determine whether a case was an excluded provision or not. In addition, although the majority of the Hong Kong public44 is in favour of Hong Kong’s “high degree of autonomy”45, the CFA may have also chosen the wrong case with which to feel out its power, as public opinion was generally against the economic and social consequences of its verdict. However, the reversal of the CFA verdict by the NPCSC was particularly bruising to the autonomy and independence of the CFA. Yash Ghai articulates: if the [CFA] is going to be effectively the final HKSAR court for these provisions of the Basic Law, there would be problems regarding the precedential value of their decisions, since one High Court does not bind another (which may necessitate intervention by the NPCSC to resolve conflicts).46 This demonstrates the uncertainty over whether the NPCSC will intervene in future CFA verdicts, as this case sets a precedent for NPCSC intervention, dealing a severe blow to the independence of Hong Kong’s judiciary. As demonstrated in the White Paper and Right of Abode case, the NPCSC’s authority over the CFA has allowed the PRC to interpret open-ended terms to its advantage, manipulating the Basic Law to subjugate the independence of the CFA. The CFA’s inability to challenge the NPCSC’s interpretation over the CFA’s autonomy leads to a slippery slope towards a dominating NPCSC.

44. See WONG, supra note 20, at 106. (Polls revealed a 45% drop in confidence in the relation between China and Hong Kong one week after the challenge made by the senior mainland lawyers). 45. THE BASIC LAW OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION OF THE PEOPLE’S REPUBLIC OF CHINA Apr. 4, 1990, art. 2. 46. GHAI, supra note 2, at 200.

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C. Ordinary Residence of Domestic Helpers in Hong Kong Case: NPCSC’s Restraint from Intervening in CFA Case The Vallejos Evangeline Banao vs Commissioner of Registration 47 case in 2013 provides a counterargument to the idea that the NPCSC abuses its final interpretive powers. However, I argue that the lingering threat of reinterpretation still undermines CFA’s independence. The case involves two foreign domestic helpers, Ms. Vallejos and Mr. Domingo, who have lived in Hong Kong for 20 years, looking to obtain permanent residency status. This case provides an example of the consequences resulting from the Right of Abode case with regards to the balance of power between the NPCSC and the CFA. The dispute was founded on their interpretation of Article 24 (2), paragraph (4), which states that permanent residence includes “persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than seven years.”48 Hence, they should be entitled to become permanent residents. Moreover, permanent residents also enjoy the right of abode under Article 24(3).49 However, the two foreign domestic helpers had their application for permanent identity cards rejected by the Commissioner of Registration, who stated that they did not “ordinarily reside” in Hong Kong as foreign domestic helpers. Ms. Vallejos thus appealed to the Hong Kong courts. The Court of First Instance ruled in favour of Ms. Vallejos, explaining that Ms. Vallejos has indeed “ordinarily resided” in Hong Kong, according to the understanding of the phrase in the common-law and the Shah Test 50 The ruling sparked public debate over the residency issue, as Hong Kong citizens expressed concerns about the anticipated eligibility of over 100,000 foreign domestic helpers for permanent residency. They worried the expanded right of abode would increase pressure on various public services and disrupt employment.51 There was even talk about an executive branch 47. Evangeline B. Vallejos and Daniel Domingo L. v. Commissioner of Registration (FACV 19 and 20/2012). 48. THE BASIC LAW OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION OF THE PEOPLE’S REPUBLIC OF CHINA Apr. 4, 1990, art. 24. 49. THE BASIC LAW OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION OF THE PEOPLE’S REPUBLIC OF CHINA Apr. 4, 1990, art. 24. 50. Shah Test: The unanimous ruling of the House of Lords that “ordinary resident” refers to a residence ‘adopted voluntarily and for settled purpose [such as employment or education] as part of the regular order of his life for the time being’. 51. Dinusha Panditaratne, The Ordinary Residence of Domestic Helpers in Hong Kong: A chronicle of Vallejos Evangeline Banao v Commissioner of Registration [2013] HKEC 429, HONG KONG LAWYER, (May 2013), http://www.hk-lawyer.org/content/ordinaryresidence-domestic-helpers-hong-kong-chronicle-vallejos-evangeline-banao-v.

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request for NPCSC interpretation of the Basic Law to settle the dispute.52 The case was eventually taken to the Court of Appeal, and subsequently to the CFA for interpretation. Both the Court of Appeal and the Court of Final Appeal ruled against the Court of First Instance and in favour of the Commissioner of Registration. The Court of Appeal rejected the Shah Test, saying there could not be one single definition of “ordinary residence” in all contexts. The importance of the valuable right of abode made this case special from those in the Shah Test. Moreover, the CFA cited Article 154 (2), which states the HKSAR government “may apply immigration controls on entry into, stay in and departure from the Region”53 The CFA ruling on Article 154 (2) and the interpretation of “ordinary residence” to not include foreign domestic helpers in Article 24 (2)(4), meant the Commissioner of Registration’s decision to reject Ms. Vallejos’ application was constitutionally valid. In response to calls for the NPCSC to interpret, the CFA declined to seek an interpretation from the NPCSC on the grounds that it was unnecessary to do so. The CFA explained that both Article 158 (2)(3) and Article 24 were not excluded provisions and therefore the matters at hand were in their jurisdiction. This case suggests the executive branch can be trusted with its power to judge whether or not to request NPCSC interpretation, but still demonstrates the possible threat of the precedent set by the Right of Abode case. The executive branch did not request an interpretation from the NPCSC in the end, showing restraint. However, the lack of interference may also be explained by the fact that the CFA’s verdict aligned with the executive branch’s interests. Although Article 158 (1) permits the NPCSC to issue a stand-alone interpretation at any time, irrespective of whether the CFA decides to ask for an interpretation54, the NPCSC chose not to use its powers to alter the judicial process. The Right of Abode case and Ordinary Residence cases shed light on the threat of a NPCSC interpretation as a rare phenomenon and demonstrate that day-to-day activities of Hong Kong courts are generally free from executive branch interference. However, the Ordinary Residence case warned of the possibility of interference by either the executive or NPCSC in future cases that may not rule in favour of the PRC’s interests. This reminds us of the weak position that the agencies of “two systems” have, relying on the judgment of the agencies of “one country” to keep the interests of “two systems” in consideration. Therefore, the precedent set by the Right of Abode case that the executive branch may request NPCSC interpretation implies the autonomy of the 52. 53.

See id. THE BASIC LAW OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PEOPLE’S REPUBLIC OF CHINA Apr. 4, 1990, art. 154. 54. Panditaratne, supra note 51.

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CFA and the interests of “two systems” rely heavily on the restraint of “one country.” Despite the fact that the NPCSC doesn’t intervene often, the lingering threat of re-interpretation undermines the independence and autonomy of the CFA.

IV.

DEMOCRATISATION: TESTING THE JUDGEMENT OF “ONE COUNTRY” AGENCIES

The Basic Law offers significant legal grounds for the election of the Chief Executive and LegCo through universal suffrage. However, democratisation in Hong Kong must respect the sovereignty of the PRC, meaning progress must be gradual to avoid stirring up independence sentiment among the public. Articles 45(2) and 68(2) provide strong constitutional foundation for further democratisation of both the Chief Executive and LegCo’s election processes. Article 45 states: [t]he method for selecting the Chief Executive shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.55 Article 68 uses this exact language to relate the selection of LegCo members via democratic processes. However, Hong Kong’s expectation for total democratisation must be kept in check in order to restrain ideas of self-governance and independence. The process must respect the “one country, two systems” principle, as total self-governance would violate “one country.” On the other hand, the influence of the PRC through the executive-led system and powerful NPCSC creates the risk that democratisation could be halted against the will of the general public and in violation of the promises of the Basic Law. Hence, an orderly progress of democratisation, which respects the boundaries of “one country, two systems,” must be reached to ensure a justified approach to democratisation.

55. THE BASIC LAW OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PEOPLE’S REPUBLIC OF CHINA Apr. 4, 1990, art. 45.

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A. The PRC’s View: Limiting Democratisation to Maintain PRC Control in Hong Kong Focusing on the democratisation of the Chief Executive’s selection process,56, the mainland stresses the importance of ensuring stability when determining how fast democratisation should progress. Wu Bangguo, the chairman of the NPC, explains the “object for implementing ‘one country, two systems’ and giving full effect to the Basic Law is to protect prosperity and stability.”57 His analysis of the Basic Law reflects the more conservative perspective that any democratisation must first prioritize economic and social stability. Both Hong Kong’s business elites, who mostly align with PRC interests, and mainland observers often argue that democracy would destroy the foundations of the economy. Currently, the Chief Executive is elected by a 1,200-person election committee comprised of members from a variety of sectors that generally reflect a pro-establishment majority. Widening suffrage would include a significant amount of poorer people, and conservative scholars worry this could tip the balance of politics towards further democratisation and other concessions such as welfare, thereby subordinating the capitalistic mindset of Hong Kong. This concern pits the business elite class against democracy due to the already flourishing socio-economic conditions for a market economy. The business elites want to hinder democratisation in order to maintain their capitalistic interests. Referencing the extent of democratic progress, Article 45 states democratisation should happen “in light of the actual situation,” which may imply that democratisation should first consider whether the economy is stable enough to handle further democratisation. Economic prosperity is of vital importance to Hong Kong and may be one of the crucial factors in explaining the PRC’s willingness to allow autonomy in Hong Kong. Hong Kong’s economic success explains why its capitalist economy has remained virtually unchallenged by the PRC, even if it is ideologically contradictory to socialism. Thus, the success of the capitalist economic system is one of the justifications for slowing the pace of democratisation. Moreover, the extent of democracy promised in the Basic Law must take into account how the term “democracy” is understood by the PRC

56. 30 out of the 70 seats in LegCo are indirectly elected through trade-based functional constituencies with limited electorates. These functional constituencies are most likely taken up by the business elite class of Hong Kong who align themselves with the Beijing government, rendering the democrat camp in a permanent minority at this stage. The rest of the seats are elected through geographical constituencies, open to public elections, and are mostly comprised by the pro-democrat camp. 57. LO, supra note 8, at 25.

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under the “one country, two systems” principle. During an address in 1987, Deng Xiaoping explained: It would not be inappropriate for people to judge whether Hong Kong’s system is democratic on the basis of whether it [is a copy of western systems like Great Britain and the United States]. . . so far as democracy is concerned, on the Mainland we have socialist democracy, which is different in concept from bourgeois democracy.58 Deng Xiaoping’s statement reveals the PRC and Hong Kong have distinct definitions of democracy, where Hong Kong’s ideal aligns more with western democracies. These different understandings suggest the need for pro-democracy advocates to be careful about having unrealistic expectations of “democracy” and “elections.” Starry Lee Wai-King, the leader of Hong Kong’s largest pro-Beijing party, questions the fairness of the United States’ democratic system, citing the unpopularity of the two U.S. candidates in the 2016 elections as evidence of the system’s inability to select a popular candidate.59 Lee raises an interesting point over the true conception of democracy and suggests it may not be a good idea to use western democratic systems as reference points for fair elections. Instead, Hong Kong must undertake a unique approach to democratisation, in accordance with the “one country, two systems” principle. Democratisation under the “one country, two systems” principle would respect China’s sovereign position and accept the ultimate goal of total re-unification. Professor Xia Yong, member of the Committee for the Basic Law under the NPCSC, stresses the importance of China’s sovereign position: “if one only talks about ‘two systems’ while neglecting ‘one country’, the high degree of autonomy would be like water without a source.”60 This analogy implies the PRC is the ultimate source of authority, the only authority with the power to grant Hong Kong democratisation; thus, the PRC has the power to control the pace of democratisation. The PRC opposes democratisation due to its fear of increasing self-government in Hong Kong, which could then turn Hong Kong into a base for anti-communists and pro-independence sentiment.61 The threat of independence has become an issue more recently, as this sentiment had little influence a dec58. 59.

LO, supra note 8, at 37. Tony Cheung, Is the US election system totally fair? Hong Kong lawmaker asks, SOUTH CHINA MORNING POST (Jan. 2, 2017), http://www.scmp.com/news/hong-kong/politics/ article/2058649/us-election-system-totally-fair-hong-kong-lawmaker-asks. 60. LO, supra note 8, at 24. 61. Stephan Ortmann, The Umbrella Movement and Hong Kong’s Protracted Democratization Process 36, ASIAN AFFAIRS 46:1, (2015), http://dx.doi.org/10.1080/03068374.2014 .994957.

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ade ago. However, growing discontent in Hong Kong with China’s rule has placed democratisation and the “one country, two systems” principle under the microscope of public scrutiny. Under the principle, advocacy for independence has no place in Hong Kong politics. Therefore, the NPCSC’s interpretation of Article 104 in November 2016 on the oath-taking controversy62 rightly disqualified two newly elected localist LegCo members, who used derogatory terms against the PRC in their oaths. The oath-taking incident clearly indicates that suggestions of independence or any challenges to PRC authority will not be tolerated. It also suggests that even though day-to-day activities are left to the HKSAR government, the PRC has a watchful eye and is ready to pounce on any threat to its authority. Hence, democratisation under the “one country, two systems” principle must respect the PRC’s sovereignty and there is no room for independence. B. Pro-Democracy View: Advocating Quicker and More Extensive Universal Suffrage Although democratisation should be achieved under China’s sovereignty, the extent of democratisation must conform to the intent of Article 45, which stipulates the election of the Chief Executive based on direct representative democracy.63 During the Sino-British Joint Declaration, British delegates deliberately intended for Hong Kong to have a direct form of democracy. Paragraph 3(4) of the declaration states that, “the Chief Executive will be appointed by the Central People’s Government on the basis of the results of elections or consultations to be held locally.”64 The Hong Kong population perceived this provision to mean elections would emulate direct representative democracy, such as in Great Britain, as this is the type of democracy the British intended to leave behind for the Basic Law to ensure. As a result, a large part of the Hong Kong population 62. Oath-taking controversy: During the swearing in the of newly elected LegCo members on 11 October 2016, 13 member used the oath-taking ceremony as a basis for a protest. Two members, Sixtus Leung and Yau Wai-Ching, pledged allegiance to the “Hong Kong nation,” while displaying a banner that read “Hong Kong is not China.” In addition, they mispronounced PRC as “Chee-na” which was a derogative term used by the Japanese on China as it referred the China as a geographical expression rather than a country. Their oaths were invalidated by LegCo and subsequently confirmed by the NPCSC’s interpretation and the CFA’s acceptance of the NPCSC ruling. It should be noted that the executive sought the NPCSC’s interpretation, explained in part III of this article, which pro-democrats argued as against the principle of separation of power. 63. THE BASIC LAW OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION OF THE PEOPLE’S REPUBLIC OF CHINA Apr. 4, 1990, art. 45. 64. THE GOVERNMENT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION, CONSTITUTIONAL AND MAINLAND AFFAIRS BUREAU, The Joint Declaration (last updated July 1, 2007), http://www.cmab.gov.hk/en/issues/jd2.htm.

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refers to direct representative elections when interpreting the eventual goal of universal suffrage. Around 40% of Hong Kong’s population is dissatisfied with the Hong Kong government and believes the very slow pace of democratisation is indicative of the business elite’s and the PRC’s unfair dominance over Hong Kong politics.65 Scholar Michael Davis expands on this fact: high levels of popular support for democratic reform and human rights are a consistent feature of Hong Kong’s political landscape, which is especially evident in electoral support for pro-democracy legislative candidates – typically running around 60 percent.66 The popularity of pro-democracy candidates reflects the public’s general desire for universal suffrage. However, the undemocratic nature of the current political system makes it difficult for the pro-democracy camp, which is consistently in the minority of the legislature, to pass bills concerning democratisation, due to the executive-led system explained earlier. The reluctance of the NPCSC to grant universal suffrage in the elections of the Chief Executive in the 2007 and 201267 election cycles reflects the lack of progress on democratisation. Pro-democracy legislators and protestors point to these rulings, among other things, as proof that the PRC is unwilling to fulfil the intent of Articles 45 and 86, which call for the implementation of universal suffrage.68 Therefore, the current limitations on the process of democratisation would go against the intentions of the Basic Law and the visions of British at the Joint Declaration. Public grievances came to a breaking point in September 2014 as a result of a new NPCSC electoral reform, giving rise to the “Umbrella Movement.”

65. PUBLIC OPINION PROGRAMME, THE UNIVERSITY OF HONG, Kong People’s Satisfaction with the HKSAR Government (per poll), https://www.hkupop.hku.hk/english/pop express/sargperf/sarg/poll/sarg_poll_chart.html (last accessed February 1, 2017). 66. FU, supra note 3, at 77. 67. NPCSC ruling on the 2012 election cycle: The NPCSC ruled in a consultation document in 2009 that the selection of the Chief Executive will still be carried out by the Election Committee (EC). Although the EC increased in size to 1200 people (from 800), the decision ruled out the possibility of opening the Chief Executive selection to the public. However, the NPCSC also ruled that Hong Kong “may” have universal suffrage for the 2017 Chief Executive (But total universal suffrage was not allowed for 2017 as events developed since this ruling) 68. THE BASIC LAW OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION OF THE PEOPLE’S REPUBLIC OF CHINA Apr. 4, 1990, art. 45, 86.

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C. “The Umbrella Movement”: Evidence for Pro-Democracy Grievances The “Umbrella Movement” describes a series of sit-ins and street protests involving at its peak around 100,000 people, lasting from September to December 2014. The protests occurred in response to the NPCSC proposed electoral system reform. The NPCSC’s package stipulated that the selection of the Chief Executive could be open to public elections, but only after two or three candidates were chosen by a 1200 member Election Committee. This proposal proved unacceptable to LegCo, who rejected the reform package in June 2015, as it fell short of fulfilling their expectation of universal suffrage. Protestors believed the proposed reforms were unrepresentative of their expectations for universal suffrage and demanded genuine universal suffrage. As a result of the British legacy, the Hong Kong public’s views aligned with western-based ideals on democratisation, which believe that free and direct elections are fundamental. A poll conducted by the Chinese University of Hong Kong discovered only 36.1% of 802 people surveyed believed LegCo should accept the NPCSC’s decision.69 The proposed reforms did not take the public’s opinion into consideration, as the prescreening of potential candidates by a pro-PRC Election Committee would have unjustifiably limited the public’s options. Hence, the voice of “two systems” would have been completely ignored by the NPCSC’s proposals. Although the Hong Kong public should not expect a fully westernised version of universal suffrage, some compromise must be reached that includes their call for greater democratisation. For example, the Election Committee’s members, who pre-screen the two or three candidates for public elections, could be democratically or semi-democratically elected. The PRC’s continued hard-line stance has turned previously pro-democracy supporters into more extreme independence advocates. Although independenceadvocating candidates should not participate in Hong Kong politics due to their ideological violation of the “one country, two systems” principle, the growing independence sentiment could be alleviated through greater compromise on the question of universal suffrage. Nevertheless, future electoral reforms would be justified if the “one country, two systems” principle is respected and some compromise can be reached between the PRC and pro-democracy camp. This would ensure the protection of “two systems”

69. THE CHINESE UNIVERSITY OF HONG KONG, CENTRE FOR COMMUNICATION AND PUBLIC OPINION SURVEY, Public Opinion & Political Development in Hong Kong (October 22, 2014), http://www.com.cuhk.edu.hk/ccpos/images/news/20141022-eng.pdf.

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and satisfy the Hong Kong public’s expectation of universal suffrage, while excluding pro-independence sentiment.

V.

CONCLUSION

“One country” is inherently dominant over “two systems,” but to achieve justified interpretations of the Basic Law, the interests of “two systems” cannot be subordinated. The authority of “one country” is exemplified by the executive-led system and the final interpretive powers of the NPCSC. More importantly, analysis of the balance of powers between the NPCSC and CFA through the Right of Abode case shows the NPCSC undermining the CFA’s independence. Although the NPCSC does not intervene in Hong Kong’s daily affairs, the lingering threat of intervention serves to subvert the CFA’s autonomy. Seeing as the NPCSC has final interpretative powers over the CFA, the protection of “two systems” relies on the agencies of “one country” to refrain from using its dominance to intervene for the sole purpose of fulfilling policy favourable to the PRC. Finally, democratic progress has been hindered by the PRC’s desire to consolidate its sovereignty and maintain a stable capitalist economy in Hong Kong. Such actions go against the intentions of fulfilling universal suffrage based on the Basic Law and offer evidence that the agencies of “one country” are gradually encroaching on the “one country, two systems” principle. Ultimately, it is a fundamental fact that Hong Kong is an inalienable part of the PRC. That being said, the lack of power granted to the agencies of “two systems,” including the limited powers of LegCo and the CFA’s lack of independence, threatens Hong Kong’s political and economic systems, including Basic Law provisions for democratisation. The weak position of the institutions of “two systems” may result in failure to provide an effective check against the executive-led system and the NPCSC’s power, paving the way for the manipulation of open-ended terms to reflect PRC interests. The failure to foresee PRC manipulation of open-ended terms may be the Basic Law’s Achilles heel and the reason that future interpretations may favour the PRC and consolidation of the NPCSC’s ultimate interpretive powers over the CFA. Only when the values of “two systems” are upheld and protected by the agencies of “one country,” can the dominant position of “one country” under the “one country, two systems” principle be truly justified. Therefore, interpretations of the Basic Law should aim to fulfil the objective of “one country, two systems” – the acceptance that the PRC has ultimate interpretive powers – while ensuring the protection of Hong Kong’s interests and autonomy.

ETHICS

IMMIGRATION: A MORAL ARGUMENT FOR IMMIGRATION REFORM

AND

Alberto Lugo*

With President Donald Trump’s recent inauguration, immigration has increasingly become a more controversial and debated political subject. Part I of this article offers a brief analysis and critical discussion of the linguistic and conceptual frameworks that envelope contemporary immigration discourse. Part I highlights how this particular kind of discourse has operated in recent immigration laws and Supreme Court rulings and developed a framework that has positioned immigrants as an “alien” and “invading criminal force.” A brief account of recent immigration laws and court rulings is given with a focus on how this linguistic framework has operated in rendering immigrants as “criminals” and ultimately disenfranchising them. Part II of this essay illustrates how the contemporary manner in which immigration legislation is discussed is characterized by utilitarian deliberation. After illustrating why we ought not deliberate and consider legislative and political questions in merely utilitarian terms, this article explores why political and legislative discourse is primarily concerned with justice and is therefore intrinsically a moral discourse. After discussing why political questions are intrinsically moral ones, Part II offers an argument that illustrates how current immigration laws have directly caused the pain and suffering of immigrants and transnational families (with a focus on Central and South American immigrants and transnational families), and are therefore unjust. The conclusion of the argument ultimately suggests that we are morally obligated to radically reform our immigration laws to allow immigrants practical, comprehensive, and humane access to legal permanent residence, while reimagining the way we conceptualize transnational peoples.

* Alberto Lugo is a third year English major minoring in Philosophy. He is currently a volunteer at the Santa Monica Courthouse through the JusticeCorps program at UCLA in which he provides legal information and assistance to self represented litigants in family and housing law. His academic interests include ethics, and political philosophy and theory. Alberto will be applying to law school his senior year. Editor: Holt Alden is a fourth year undergraduate at UCLA majoring in Global Studies. He is the President and captain of the UCLA Men’s Club Soccer team, edits for the UCLA Undergraduate Law Journal and works in the Athletic Peer Learning Lab. Holt is also the co-Editor-in-Chief of The Generation, UCLA’s Foreign Affairs Magazine. He will be attending law school after graduation, pursuing his interests in international law, sports law, and domestic criminal justice departments.

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PART I I.

INTRODUCTION

“When Mexico sends its people, they’re not sending their best. [. . .] They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.” —President Donald Trump1 Thus began President Donald Trump’s notorious candidacy on June 16, 2015.2 The remarks launched him into the national spotlight. Indeed, one of the most popular chants of Donald Trump’s rallies was “Build the wall!” referring to his comments about building an expansive wall across the Mexican-American border.3 Nevertheless, incendiary and divisive attitudes towards immigration reform are not a recent phenomenon. Immigration reform has been and continues to be a largely debated and fruitless issue. Scholars and politicians have debated a great deal over immigration, and yet, there continues to be no real or lasting change. For instance, 2014 was marked by President Obama’s executive order that would have allowed for as many as five million unauthorized immigrants who were the parents of citizens or legal permanent residents to apply for a program that would provide them with temporary legal status and work permits.4 This program, called the Deferred Action for Parents of American Lawful Permanent Residents (DAPA), was blocked by the Supreme Court in June the following year.5 More recently, the President’s executive order6 banning travel from seven Muslim-majority countries has sparked numerous pro1. TIME Staff, Here’s Donald Trump’s Presidential Announcement Speech, TIME (June 16, 2015), http://time.com/3923128/donald-trump-announcement-speech/. 2. Id. 3. Tim Hains, Crowd In Michigan Erupts Into ‘Build The Wall!’ Chant When Donald Trump Brings Up Trade, Auto Industry, REALCLEAR POLITICS (March 4, 2016), http://www .realclearpolitics.com/video/2016/03/04/donald_trump_crowd_in_michigan_chants_build_the _wall_build_the_wall.html. 4. Adam Liptak & Michael D. Shear, Supreme Court Tie Blocks Obama Immigration Plan, THE NEW YORK TIMES (June 23, 2016), http://www.nytimes.com/2016/06/24/us/sup reme-court-immigration-obama-dapa.html. 5. Id. 6. Executive Order: Border Security and Immigration Enforcement Improvements, THE WHITE HOUSE (January 25, 2017), https://www.whitehouse.gov/the-press-office/2017/01/ 25/executive-order-border-security-and-immigration-enforcement-improvements.

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tests7 nationwide. Obviously, immigration more broadly, as well as the current and future status of the millions of undocumented immigrants presently in the United States8 and the continuing arrival of undocumented immigrants into the country, is an issue that must be addressed. As suggested, there has been a great deal of discourse on the topic of immigration and immigration legislation. In Part I of the following article, I begin by illustrating how the very nature of the discourse legislators and scholars have engaged in the past when discussing immigration has positioned immigrants as an “alien” and “invading criminal force.” I offer a brief account of recent immigration legislation, focusing on the disenfranchising effects of laws and how they have rendered undocumented immigrants “criminals” with minimal to no legal protections. My discussion focuses on how the criminalization of immigrants is reflected in recent legislation9 and court rulings.10 Moreover, I argue that these laws and court decisions have had and continue to have devastating effects on immigrants and their families.11 In Part II, I argue that the contemporary and popular manner in which we currently think about immigration laws focuses on economic utility and is therefore ultimately misguided. I argue that political questions are intrinsically moral questions. Hence, we ought to think about legislation, particularly immigration law, in moral terms. Ultimately, I suggest that we are morally obligated to radically change our current immigration laws to allow immigrants easier and more comprehensive access to legal permanent residence.

II.

NOTE ON LINGUISTIC DILEMMAS CONCEPTUAL FRAMEWORKS

AND

Before I continue my discussion, it is important to illustrate some terminological and conceptual problems with current and past discourse on immigration. To begin, I must note that I reluctantly refer to this topic as an “issue” and that there is a “solution.” In the past, scholars, politicians and historians have often referred to undocumented immigration as the 7. Emanuella Grinberg & Madison Park, 2nd Day of Protests over Trump’s Immigration Policies, CNN (March 4, 2017), http://www.cnn.com/2017/01/29/politics/us-immigrationprotests/index.html. 8. Jens Manuel Krogstad, Jeffrey S. Passel & D’Vera Cohn, 5 Facts about Illegal Immigration in the U.S., PEW RESEARCH CENTER (November 3, 2016), http://www.pewresearch .org/fact-tank/2016/11/03/5-facts-about-illegal-immigration-in-the-u-s/. 9. See Section C. 10. See Section D. 11. See Section E.

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immigration “issue.”12 This phrasing is problematic because it constructs a framework operating under ideological and biased presuppositions. It places what some scholars have referred to as the “free movement of people” into a conceptual framework that categorizes a group of peoples as an “other” that poses some sort of “problem” or “threat” to “another” (i.e. the receiving nation-state).13 It positions the receiving nation-state as a charitable political entity that altruistically opens itself up to the possibility of danger in order to operate as a benevolent and magnanimous savior. As will be discussed, however, this could not be further from the truth. Furthermore, when speaking of the immigration “issue,” I am not referring to the movement of people into the country as a problem nor the fact that there are as many as eleven million undocumented immigrants in the country.14 Rather, I am using the terminology to emphasize the fact that the situation undocumented immigrants find themselves in because of unjust and incomprehensive immigration legislation is an issue. It must also be noted that “immigration” is a highly oversimplified and loaded term that operates problematically in the law today. The Immigration and Nationality Act defines the term “alien” as “any person not a citizen or national of the United States.”15 An “immigrant” is broadly defined as “every alien except an alien who is within [various] classes of nonimmigrant aliens.”16 The term “immigrant” is often used synonymously with “legal permanent resident.” A legal permanent resident is “an alien admitted to the United States as a lawful permanent resident.”17 Hence, the simplistic and often used term “illegal immigrant” is often used to refer to an undocumented immigrant. Throughout this paper I will not use the terms “alien” or “illegal immigrant” because they perpetuate the criminalization, alienation, and dehumanization of an immensely diverse group of peoples. Also, though I will continue to use the term “immigrant” for practical reasons, it too, is a problematic term in academic discourse for many reasons. As mentioned, immigration is complicated and different for many peoples of different ec12. Nicola P. De Genova, Migrant ‘Illegality’ and Deportability in Everyday Life, 31 ANN. REV. OF ANTHROPOLOGY 419, 419-47 (2002), http://www.annualreviews.org/doi/abs/ 10.1146/annurev.anthro.31.040402.085432. 13. NIGEL HARRIS, THE NEW UNTOUCHABLES: IMMIGRATION AND THE NEW WORLD WORKER 85 (1995). 14. Krogstad, Passel & Cohn, supra note 9. 15. 8 U.S.C. § 1101 (USCIS), https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/00-0-1/0-0-0-29/0-0-0-101.html#0-0-0-164. 16. Id. 17. Definition of Terms, HOMELAND SECURITY (Nov. 3, 2016), https://www.dhs.gov/ immigration-statistics/data-standards-and-definitions/definition-terms#permanent_resident_ alien.

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onomic status, color, gender, and nationality.18 In other words, the movement across borders is different for differing peoples, and these differences can often be explained when analyzing the effects of economic status, color, gender, and nationality. The umbrella term “immigrant” attempts to envelope a whole set of complex experiences and peoples in order to minimize them into a generalized category. Moreover, “illegality,” that is, the condition of immigrants’ legal status and deportability, is not a static and binary condition. On the contrary, it may constantly change and is often obscure. Too often, public, political and scholarly discourse operates within a “documented” vs. “undocumented” binary that fails to capture the complexity of the system and immigrants’ experiences. Many immigrants are not simply documented or undocumented. For instance, because the U.S. has failed to recognize refugees from countries like El Salvador, Honduras, Nicaragua, Haiti, Syria and others as victims of geopolitics, these refugees are ineligible for most legal protections and are placed in legal categories that are not citizen, resident, or undocumented. One of these categories is Temporary Protected Status, in which certain immigrants are allowed to legally reside and work in the U.S. for a specific amount of time.19 Lastly, I must preface my discussion by highlighting that although I will continue to use the term “immigrants” freely throughout this article, much of my research and subsequent discussion focus on the experiences of migrants from Central and South America. My reasons for this are numerous. As stated, the topic of immigration is complex and any discussion on “immigration” is beyond the scope of one article. My discussion focuses on Latino experiences in particular because the American “immigrant experience” is, to a significant extent, a Latino experience. Some of the largest immigrant groups in the U.S. come from Mexico, Guatemala, El Salvador, the Dominican Republic, and Cuba, accounting for 37.4% of the total U.S. immigrant population in 2015.20 Moreover, recent immigration legislation21 has affected Latinos more than any other group. For instance, Latino groups such as Mexicans, Guatemalans, Hondurans, and Ecuadorians who face deportation for non-criminal reasons are detained in immigrant detention centers at significantly higher rates than non-Latinos also 18. LEISY J. ABREGO, SACRIFICING FAMILIES: NAVIGATING LAWS, LABOR, AND LOVE ACROSS BORDERS 32, 36, 60 (2014). 19. Temporary Protected Status, U.S. CITIZENSHIP AND IMMIGRATION SERVICES (Mar. 6, 2017), https://www.uscis.gov/humanitarian/temporary-protected-status. 20. Largest U.S. Immigrant Groups over Time, 1960-Present, MIGRATION POLICY INSTITUTE (Oct. 2, 2013), http://www.migrationpolicy.org/programs/data-hub/charts/largest-immigrant-groups-over-time. 21. See Section C.

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facing deportation.22 It is also evident from President Trump’s remarks that we are living in a time that has racialized the term “immigrant” to be synonymous with “Latino,” creating a national culture of anger and fear directed at Latinos, many of whom are citizens or legal immigrants. It is for these reasons that my focus is on this particular group of people.

III.

A BRIEF HISTORY

OF

IMMIGRATION LAW

Immigration legislation, beginning with the first immigration laws passed in the U.S.,23 has always been a response to animosity towards immigrants.24 However, though there continues to be discriminatory and unjust immigration legislation passed ever since, undocumented status meant very little until recent decades. For instance, prior to the 1980’s, undocumented immigrants could obtain driver’s licenses and work without the fear of being deported.25 Starting with the Reagan administration and their “Tough on Crime” policies, the federal government began militarizing border enforcement in the 1980’s, thwarting circular migration patterns and increasing the settlement of entire families in the U.S., especially Mexican families who had a long history of circular migration between Mexico and the U.S.26 The legislation passed during this period significantly expanded states’ power in enforcing and implementing immigration policies and laws. Moreover, these laws would produce the conditions that would systematically disenfranchise, criminalize and marginalize immigrants. For instance, the Immigration Reform and Control Act of 1986, made it, for the first time, a crime for undocumented immigrants to work in the United States.27 Immigrants’ paths to legalization were further restricted with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.28 The law significantly increased border patrol enforcement, elimi22. Elizabeth Stuart, Mexicans Most Likely of Immigrants to Be Locked Up in Detention Centers, PHOENIX NEW TIMES (Sept. 1, 2015), http://www.phoenixnewtimes.com/news/ mexicans-most-likely-of-immigrants-to-be-locked-up-in-detention-centers-7615278. 23. Howard Bromberg, Immigration Act of 1882, IMMIGRATION TO THE UNITED STATES (2015), http://immigrationtounitedstates.org/584-immigration-act-of-1882.html. 24. Early American Immigration Policies, U.S. CITIZENSHIP AND IMMIGRATION SERVICES (Sept. 4, 2015), https://www.uscis.gov/history-and-genealogy/our-history/agency-history/early-american-immigration-policies. 25. ABREGO, supra note 19, at 7. 26. Id. 27. Immigration Reform and Control Act of 1986 (IRCA), U.S. CITIZENSHIP AND IMMIGRATION SERVICES (Sept. 29, 2016), https://www.uscis.gov/tools/glossary/immigration-reform-and-control-act-1986-irca. 28. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208.

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nated legal pathways previously available to immigrants who were fighting deportation, barred undocumented immigrants from re-entry for long periods of time, and made it possible for legal permanent residents to be deported for noncriminal offenses.29 That year Congress also passed the Personal Responsibility and Work Opportunity Reconciliation Act30 and the Anti-Terrorism and Effective Death Penalty Act.31 The former denied categories of authorized and unauthorized immigrants access to federal public benefits, such as Medicaid, Supplemental Security Income (SSI), and food stamps, while the latter made it easier to arrest, detain, and deport non-citizens. The attacks on September 11, 2001, brought further militarized and criminalizing immigration legislation. The Immigration and Naturalization Service was reorganized into the Department of Homeland Security and, as Abrego writes, explicitly linked “immigrants with criminals at a time when programs such as 287(g)—in which local police are deputized to act as Immigration and Customs Enforcement agents (ICE)—and Secure Communities—which allows the FBI to communicate to ICE about anyone arrested or booked into custody throughout the country—increased their chances of deportation.”32 These laws began the process of rhetorically and legislatively equating immigrants to criminals.

IV.

THE COURTS OF

AND THE CRIMINALIZATION IMMIGRANTS

The immigration legislation discussed, along with the courts’ rulings,33 have effectively disenfranchised immigrants while giving the federal agents in charge of policing the nation’s border significantly broad authority. As Chacon writes: In the context of border policing, which the courts have linked to the protection of sovereignty and the sanctity of the nation’s boundaries, the courts have treated the government’s interest as extraordinarily strong. Thus, courts have a more permissive standard for what constitutes a reasonable action on the part of a government actor in the

29. 30. 31. 32. 33.

Id. Personal Responsibility and Work Opportunity Act, Pub. L. No. 104-193. Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132. ABREGO, supra note 19, at 8. See below cases.

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context of policing the international border than in many other policing contexts.34 This is most evident in the courts’ decisions enforcing the exceptions of Fourth Amendment violations in immigrant cases. In Henderson v. U.S., a case in which a woman detained in a border inspection was “compelled to submit to a procedure whereby a medical doctor removed from her vagina two rubber packets [. . .] together containing 93 grams of heroin,” the court affirmed: [. . .] The mere fact that a person is crossing the border is sufficient cause for a search. Thus every person crossing our border may be required to disclose the contents of his baggage, and of his vehicle, if he has one. The mere crossing of the border is sufficient cause for such a search. Even “mere suspicion” is not required.35 In United States v. Montoya de Hernandez, the Supreme Court argues: Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant, and first-class mail may be opened without a warrant on less than probable cause. Automotive travelers may be stopped at fixed checkpoints near the border without individualized suspicion, even if the stop is based largely on ethnicity, and boats on inland waters with ready access to the sea may be hailed and boarded with no suspicion whatever.36 In Rosa Elvira Montoya de Hernandez’s case, she was detained by customs officers because she fit the profile of an “alimentary canal smuggler.”37 After a thorough strip search which failed to produce any contraband, she was detained for twenty-four hours in a room with no bed or couches for refusing to be handcuffed, even though she agreed to be examined in a hospital. Almost, twenty-seven hours after her initial detention, Montoya de Hernandez was eventually handcuffed and taken to a hospital in which a rectal examination disclosed the presence of a cocainefilled balloon. After several days in detention she would later excrete eighty-eight cocaine-filled balloons. In their dissent against the decision, Justice Brennan and Justice Marshall wrote: 34. Jennifer M. Chacon, Border Exceptionalism in the Era of Moving Borders, 38 FORDHAM URBAN LAW JOURNAL 134, 134-35 (2010). 35. Henderson v. United States, 390 F.2d 805 (9th Cir. 1967). 36. United States v. Montoya de Hernandez 473 U.S. 531 (1985). 37. Id.

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UCLA UNDERGRADUATE LAW JOURNAL Volume 16 We confront a “disgusting and saddening episode” at our Nation’s border.[. . .] Indefinite involuntary incommunicado detentions “for investigation” are the hallmark of a police state, not a free society. In my opinion, Government officials may no more confine a person at the border under such circumstances for purposes of criminal investigation than they may within the interior of the country. The nature and duration of the detention here may well have been tolerable for spoiled meat or diseased animals, but not for human beings held on simple suspicion of criminal activity. I believe such indefinite detentions can be “reasonable” under the Fourth Amendment only with the approval of a magistrate. I also believe that such approval can be given only upon a showing of probable cause.38

Indeed, the courts have made decisions invoking the Fourth Amendment to further protect litigants; however, recent court rulings39 have exempted immigrants from these protections. Beginning with Weeks v. United States, the courts have held that the government cannot use evidence gathered in searches and seizures that violate the Fourth Amendment.40 This was the first application of what is now referred to as the “exclusionary rule.” The exclusionary rule now applies to improperly elicited self-incriminatory statements gathered in violation of the Fifth Amendment,41 and to evidence gained in situations where the government violates the defendants’ Sixth Amendment right to counsel.42 However, in INS v. Lopez-Mendoza, a case in which Immigration and Naturalization Service (INS) officials arrested Adan Lopez-Mendoza and Elias Sandoval-Sanchez, both Mexican citizens, during a warrantless search of their work, the Supreme Court upheld their deportation orders, claiming that the strictures of the Fourth Amendment and the exclusionary rule do not apply in deportation hearings.43 The court claimed: A deportation proceeding is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry, though entering or remaining unlawfully in this country is itself a crime. [. . .] The “body” or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, 38. 39. (1984). 40. 41. 42. 43.

Id. See Immigration and Naturalization Service v. Lopez-Mendoza 468 U.S. 1032 Weeks v. United States, 232 US 383 (1914) See Miranda v. Arizona, 384 U.S. 439 (1966) Id. Lopez-Mendoza, 468 U.S. at 1034.

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even if it is conceded that an unlawful arrest, search, or interrogation occurred.44 Cases such as INS v. Lopez-Mendoza further illustrate how the discourse that envelopes immigrants is one of “crime.” Yet, by labeling a deportation a “civil action,” immigrants are denied the rights and benefits of a criminal hearing while facing criminal charges. Moreover, as Justices Brennan and Marshall’s dissent in United States v. Montoya de Hernandez suggest, federal immigration enforcement agents often operate in the manner of a “police state” with increasingly broad power, all while immigrants’ rights and powers are increasingly limited by the courts’ decisions.

V.

CONTEXTUALIZING IMMIGRATION NOW

As a result of the legislation45 and courts’ decisions46mentioned above, detentions and deportations have dramatically increased.47 Furthermore, as the President’s comments suggest, mainstream media images48 tend to portray undocumented immigrants as criminals, even when official statistics confirm that the majority of deported immigrants do not have criminal records.49 The criminalization of migration in the United States has been of recent interest to scholars. In particular, there has been a focus on the increasingly harsh criminal consequences attached to violations of laws regulating migration, the use of removal as an adjunct to criminal punishment in cases involving non-citizens, and the rising reliance on criminal law enforcement actors and mechanisms in civil immigration proceedings.50 As Chacon writes: One major effect of these three trends has been the incorporation of criminal law methodologies into the realm of civil immigration enforcement and adjudication. Recently, Stephen Legomsky has theorized the asymmetric nature of this incorporation. As he explains, the “theories, methods, perceptions, and priorities” of criminal law enforcement have been incorporated into immigration proceedings, 44. 45. 46. 47. 48. 49. 50. SIDEBAR

Id. See Section C. See Section D. ABREGO, supra note 19, at 8. Id. Id. Jennifer M. Chacon, ´ Managing Migration through Crime, 109 COLUM. L. REV. 135, 135-136 (2009).

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that: While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation.52 The Supreme Court’s comments as well as the cases previously discussed53 demonstrate how recent immigration legislation as well as the courts’ past decisions have created stratifying conditions that have systemically limited judges’ abilities to “alleviate the harsh consequences of deportation” while rendering immigrants powerless in the legal system. It is under this cloud of animosity that immigrants find themselves today. These conditions have had and continue to have devastating consequences for immigrants. For instance, while immigrants continue to be criminalized by the media and the law, employers—knowing they have little to risk under current employer sanctions and that the fear of detention and deportation powerfully influences immigrant’s behavior —willingly hire undocumented immigrants as low wage workers and easy targets of exploitation.54 It is not an uncommon practice for employers to threaten to call ICE as a way to exploit and undermine the rights of their employees.55 Abrego summarizes the effects of immigration policy in the following: Beyond worksites, illegality is a central determinant of an immigrant’s life chances. Undocumented immigrants are marginalized by their “legal non-existence.” From their position outside the law, they are more likely than other immigrants to earn less and work in more dangerous jobs and have little access to financial and housing aid. Deportations, moreover, have devastating consequences for families and entire communities. And even when immigrants are not detained, undocumented status prolongs their economic insecurity, while ramped up enforcement practices

51. 52. 53. 54. 55.

Id. Padilla v. Kentucky, 559 U.S. 356, 366 (2010) See Section D. ABREGO, supra note 19, at 8. Id.

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produce mental anguish when they know that they may be deported at any moment, in any public or private space.56 In the following section, I argue that these conditions are the effects of unjust legislation. The contemporary effects of immigration policies are characterized by immense suffering. Such legislation, I argue, is immoral and cannot be considered just. Furthermore, I argue that the discourse of immigration legislation and policies has traditionally been one of utility rather than justice. After illustrating why deliberating legislation in utilitarian terms is a misguided conception, I offer an account of why we ought to be thinking about legislation from a moral viewpoint. Ultimately, considering legislation in moral terms dramatically changes the kind of laws we ought to be passing and obligates us to radically reform our current immigration policies.

PART II I.

FROM UTILITY

TO

JUSTICE

“I know some worry immigration will change the very fabric of who we are, or take our jobs, or stick it to middleclass families at a time when they already feel like they’ve gotten the raw deal for over a decade. I hear these concerns. But that’s not what these steps would do. Our history and the facts show that immigrants are a net plus for our economy and our society.” —President Barack Obama57 The above epigraph shows just a few of the remarks President Obama made in support of his executive action as he announced the conditions for DAPA. It is important to note that President Obama justified his executive action by stating that “history and the facts” demonstrate the positive impact immigrants have on the economy. He emphasizes the benefits of immigration reform, rather than focusing on the reasons for why the country needs immigration reform. President Obama uses economic discourse to avoid any form of moral discourse. That is, he illustrates the economic benefits of immigration reform in order to avoid addressing the unjust consequences of current immigration legislation. One may argue that economic benefits are good reasons for immigration reform. As will be discussed, however, utilitarian modes are misguided forms of thinking about the law. 56. Id. 57. The Obama White House, Fixing the System, YOUTUBE (Nov. 21, 2014), https:// www.youtube.com/watch?v=j-6cvLqtNkY.

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The president is not alone in speaking of immigration legislation in economic terms. The contemporary rhetoric around immigration law is evidently not one of justice, but utility. Immigration reform is often evaluated through an economic perspective in both academic and public discourse.58 In his announcement of DAPA, President Obama addressed the utilitarian concerns that envelope the immigration issue: mainly questions such as “is immigration good or bad for the economy? Do immigrants take jobs from average citizens? Will opening our borders increase the likelihood of crime and acts of terror?” To be sure, these are questions worth asking. However, the common thread in all of them is that they focus on the utility of immigration. Our current discussion of the issue is one that looks at how we benefit from certain immigration legislation. A. On Utilitarianism and Justice As I will argue, thinking about legislation and political questions more broadly in utilitarian terms is misguided because utility, if made the primary end, can undermine justice. Although a discussion on utilitarianism and its political and moral implications is far beyond the scope of this article, there are a few points that illustrate why utility ought not be the end of the law. Simply put, the purpose of the law is to enforce justice. Therefore, the teleological purpose—that is, the end—of the law should be justice. The aim of utility is to maximize “the good,”—however it may be defined— while minimizing “the bad.” If a government defines “the good” in terms of economic utility, it will seek to pass legislation that has the greatest economic benefits. However, this is an ultimately flawed manner of thinking about laws because it ignores the way the law maximizes utility. Swift’s A Modest Proposal illustrates the point dramatically. Responding to the poverty and politics of Ireland in his own time—particularly the issue of poor infant children—he claims: “whoever could find out a fair, cheap, and easy method of making these children sound, useful members 58. E.g.,George J. Borjas, The Economic Benefits from Immigration, THE J. OF ECON. PERSP. 9, Spring 1995, at 3-22, http://www.jstor.org/stable/2138164; Adam Davidson, Do Illegal Immigrants Actually Hurt the U.S. Economy?, THE NEW YORK TIMES (Feb. 12, 2013), http://www.nytimes.com/2013/02/17/magazine/do-illegal-immigrants-actually-hurt-the-useconomy.html; Ted Hesson, Why American Cities Are Fighting to Attract Immigrants, THE ATLANTIC (July 21, 2015), https://www.theatlantic.com/business/archive/2015/07/us-cities-immigrants-economy/398987/; Facts About Immigration and the U.S. Economy: Answers to Frequently Asked Questions, ECONOMIC POLICY INSTITUTE (Aug. 12, 2014), http://www.epi.org/ publication/immigration-facts/; The Effects of Immigration on the United States’ Economy, PENN WHARTON BUDGET MODEL (June 27, 2016), http://www.budgetmodel.wharton.upenn .edu/issues/2016/1/27/the-effects-of-immigration-on-the-united-states-economy.

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of the commonwealth, would deserve so well of the public as to have his statue set up for a preserver of the nation.”59 He concludes that the most utilitarian way of preventing the children of poor people in Ireland from being a “burden” to their parents or country is to sell them so that they may be eaten later. While the proposal is satirical, it is meant to demonstrate the fundamental error in thinking merely in utilitarian terms. Because utility can undermine justice, it can never be the primary end of legislation. The means to an end are as important as the end.60 Thus, the primary end of our laws ought to be justice, utility being a secondary end. The practical and ideal political theorist is concerned with the best and most just way to organize a society in order that all of its citizens may obtain what Aristotle referred to as “eudaimonia,” that is, “to flourish, live well, enjoy a good life, etc.”61 Evaluating our laws with respect to justice consequently turns the question of politics into a question of ethics and radically changes our conceptual framework into a moral one.

II.

WHY MORAL POLITICS?

One objection to the idea that we ought to be looking at legislation, particularly immigration legislation, as a moral issue may be that politics and morality are two domains that should remain separate. However, this is impossible. Morality, ethics, and political questions are inextricably intertwined because they are concerned with the same fundamental questions: “What is right and wrong?” and, more specifically, “What is just?” All laws implicitly or explicitly claim that one behavior is permissible and another impermissible, doing so under a moral code. If a law prohibits its citizens from smoking in public areas, it is not because it is simply limiting its citizens’ right to smoke. It is implicitly operating under the moral assumption that death and suffering from disease is bad and that people have a moral right to not be exposed to harmful substances. Thus, under this moral code, the creators of that law are fulfilling their moral duty to keep citizens from violating other people’s right to not be exposed to harmful substances. Recently in Obergefell v. Hodges, Judge Kennedy—in the context of redefining homosexuality as morally permissible as opposed to immoral— stated: 59. JONATHAN SWIFT, A MODEST PROPOSAL. 60. Indeed, the courts have held that evidence gathered via unconstitutional means cannot be used as evidence in criminal cases. See “exclusionary rule,” pg. 11. 61. Richard Kraut, Aristotle’s Ethics, THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY ARCHIVE (Apr. 21, 2014), https://plato.stanford.edu/archives/spr2016/entries/aristotle-ethics/.

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UCLA UNDERGRADUATE LAW JOURNAL Volume 16 “The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”62

Thus, it is clear that the law’s primary concern is to exercise justice. The court’s ruling in this case justified its decision by claiming that our views of liberty and morality are constantly evolving to expand the arm of justice. Consequently, when considerations are widened and understanding of morality and liberty is enriched, the law must address it. From this it may be objected that even if we ought to consider political problems as moral ones, we could not because there is no universally agreed upon moral framework. Even if this were true, it does not mean that we cannot use common sense, practical morality or the moral principles that are universally agreed upon to guide our legislative process. Few would argue, for example, against the idea that death and suffering from sickness, poverty, or lack of food and shelter are in and of themselves bad. Few would argue against the idea that allowing the suffering and deaths of children in return for some financial gain is immoral. Indeed, documents such as the Universal Declaration of Human Rights have already illustrated what are fundamental moral absolutes: the right to life, liberty, property, marriage, freedom of thought, speech, religion, and security of person; the right to not be subjected to torture, slavery, or arbitrary arrest; the right to equal protection under the law, etc.63 It is from evident moral assumptions like these that I argue we ought to evaluate the law.

III.

THE MORAL ARGUMENT

I begin with a qualified moral assumption Peter Singer introduces in Famine, Affluence, and Morality.64 The assumption states that pain, death, and suffering are in and of themselves bad things.65 In other words, pain, 62. Obergefell v. Hodges 576 U. S. ____ (2015). 63. G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948). 64. Peter Singer, Famine, Affluence, and Morality, PHIL. & PUB. AFF., 1 (1972) 229243, http://www.utilitarian.net/singer/by/1972——.htm. 65. Id. at 231.

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death, and suffering are intrinsically not desirable. Thus, inflicting pain, death, or suffering onto another for the mere sake of doing so is immoral. Singer argues that from this assumption a moral duty springs forth. A moral duty is a principle that states that a certain kind or kinds of actions are morally obligatory. He outlines the moral duty as follows: If it is in our power to prevent something bad from happening, without thereby sacrificing anything of comparable moral importance, we ought, morally, to do it. By “without sacrificing anything of comparable moral importance” I mean without causing anything else comparably bad to happen, or doing something that is wrong in itself, or failing to promote some moral good, comparable in significance to the bad thing that we can prevent. This principle seems almost as uncontroversial as the last one. It requires us only to prevent what is bad, and to promote what is good, and it requires this of us only when we can do it without sacrificing anything that is, from the moral point of view, comparably important. [. . .] An application of this principle would be as follows: if I am walking past a shallow pond and see a child drowning in it, I ought to wade in and pull the child out. This will mean getting my clothes muddy, but this is insignificant, while the death of the child would presumably be a very bad thing.66 For practical purposes, I will assume that these moral assumptions are true. The idea that we are only obligated to prevent pain, death, or suffering in cases where we can do it without sacrificing anything morally significant seems as uncontroversial as the idea that it is immoral to inflict pain, death, or suffering for the sake of doing so. There may be few groups of people who, for different reasons, may argue that pain, death, and suffering are not intrinsically bad. These few hold idiosyncratic and extraordinary views that, for the purposes of this paper, are not worth refuting. The next point I wish to introduce is the following: We ought not pass unjust legislation, which is by definition immoral. As discussed in Part I, if one is to partake in the discourse of justice, then one is inevitably in the discourse of morality, for all conceptual frameworks for justice are in the domain of “right” and “wrong”—the permissible, impermissible, and obligatory. To say that it is morally impermissible for a government to pass unjust legislation is to simply require the law to do no harm, as opposed to require it do good. This point, when combined with the two above described moral principles, creates a new principle: we ought not pass legislation that produces, 66.

Id.

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encourages, or permits pain, death, or suffering in and of themselves. Furthermore, we are morally obligated to pass legislation that can prevent pain, suffering, and death, so long as nothing of comparable moral importance is sacrificed. These are the implications that follow from the moral principles I have introduced. A. The Effects of Current Immigration Legislation As described in Part I, current immigration laws have significantly reduced the available means for legal entrance into the United States.67 Many Central and South American immigrants gain legal entrance through family reunification laws, which are open only to immediate relatives of legal permanent residents or U.S. citizens.68 The application process is expensive and can take over a decade to process.69 Many without immediate eligible relatives hope to gain legal entrance by applying for a tourist visa.70 Most, however, do not qualify for visas and so are unauthorized travelers.71 In her research on Salvadoran migrants, Abrego writes: Without a U.S. visa, unauthorized travelers are not legally permitted to cross national borders. Even before migrants reach the United States, they must cross Mexico, where U.S. efforts in the international drug war include funding via the Plan Merida, requiring militarization along the Mexico-Guatemala border. In response, drug traffickers have diversified their sources of income by joining forces with organized crime to target unauthorized migrants from Central America. In some cases, their goal is simply to profit from the migrants by kidnapping and torturing them into extortion. Other times, however, migrants are forced to also join prostitution rings or help traffic drugs. [. . .] In 2010, international human rights organizations identified the length of the Mexican territory as the most dangerous migration corridor in the world. Poor, disenfranchised migrants become easy targets for everyone from thieves and police officers to organized drug cartels and military [. . .]. Migrants suffer at the hands of attackers who know they can get away with these crimesâ&#x20AC;&#x201D;including the systematic rape of women and girls. By branding them as â&#x20AC;&#x153;illegalâ&#x20AC;? and when paired with hateful public discourse, U.S. immigra67. 68. 69. 70. 71.

Largest U.S. Immigrant Groups over Time, 1960-Present, supra note 21. ABREGO, supra note 19, at 49. Id. Id. Id.

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tion policy implicitly communicates that these migrants are unworthy of human treatment either on U.S. soil or beyond.72 Because current U.S. immigration policies have made it almost impossible for Central and South American immigrants to enter lawfully, they are left with no other option than to expose themselves to these experiences; experiences characterized by immense suffering and danger. If unauthorized migrants do make it past the perilous journey across Mexico and into the United States, many are often detained and held in immigration detention centers.73 Once there, immigrants are often subjected to harsh conditions of confinement similar to prisons and are treated like criminals. Many are often taken in handcuffs, and sometimes in shackles; their personal belongings taken away.74 They are denied access to adequate medical care, legal counsel, and family contact.75 There have been numerous reported cases of detainees dying in detention as a result of these conditions.76 Even if unauthorized immigrants are not detained upon their arrival to the United States, their lives in the U.S. are often categorized by social, economic, and emotional suffering. Because unauthorized immigrants do not have legal entrance into the country, many are forced to enter the country by paying large sums of money to smugglers called coyotes. Consequently, undocumented immigrants enter the country with little to no money, or in significant debt.77 Once in the country, immigrantsâ&#x20AC;&#x2122; primary objective is finding housing and a steady source of income. However, because of their undocumented status and the effects of current economic conditions, this is a significantly difficult task. As Schmalzbauer writes: â&#x20AC;&#x153;[immigrants are moving into] the United States at a time when opportunities are declining for all low-skill Americans. The shift over the last 20 years from a manufacturing economy to a service-based economy has destroyed a plethora of permanent well-paying jobs that once provided economic security and mobility opportunities for poor and working-class people. A sharp increase in temporary and 72. ABREGO, supra note 19, at 49-50, 55. 73. Immigration Detention 101, DETENTION WATCH NETWORK, https://www.detentionwatchnetwork.org/issues/detention-101. 74. Dagmar R. Myslinska, Living Conditions in Immigration Detention Centers, NOLO, http://www.nolo.com/legal-encyclopedia/living-conditions-immigration-detention-centers .html. 75. Immigration Detention 101, supra note 74. 76. Id. 77. ABREGO, supra note 19, at 72.

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UCLA UNDERGRADUATE LAW JOURNAL Volume 16 subcontracting work, neither of which provides benefits or security, has been integral to this shift. Many new migrants find jobs in the low-wage service sector, where mobility prospects are limited. [. . .] The paradoxical combination of high unemployment and poverty in the global south and few good industrial jobs in the north makes survival for contemporary [migrant] families a historically unique challenge.”78

Moreover, as discussed, undocumented status as well as the fear of deportation renders migrants vulnerable to numerous forms of exploitation from employers and landlords.79 These stratifying conditions have made it increasingly difficult for undocumented immigrants to achieve any significant upward socio-economic mobility. It must also be noted that regardless of how educated they are, how many people they know, or how long they have lived in the United States, undocumented immigrants’ unauthorized status creates obstacles that overshadow any benefit they may receive from these factors.80 Some may argue that this simply illustrates that the law treats immigrants the same regardless of educational and familial ties, and that this is a good thing. This is a confused notion. These are factors that should allow immigrants to thrive in the United States. What this illustrates is that regardless of any economic or social advantages, unauthorized immigrants are inevitably disenfranchised by immigration laws. Furthermore, it is not just migrants who suffer. Many children are members of what scholars refer to as “transnational families,” that is, families in which one or more members have emigrated to another country.81 The current transnational family experience is one that has emerged along with the above mentioned legislation and recent geopolitical conditions. In her book on Salvadoran transnational families, Abrego writes: “What should be clear from both mothers’ and fathers’ narratives is that migration and the choice to come to the United States are not as simple nor as objectionable as public debates about immigration in this country suggests. Migrants do not come to the United States ostensibly to take jobs and weaken the economy. Rather, it is often the case that in increasingly unequal economic contexts and feeling unprotected from physical violence, migrants, who 78. Leah Schmalzbauer, Searching for Wages and Mothering from Afar: The Case of Honduran Transnational Families, 66 J. OF MARRIAGE AND FAM. 1317, 1318-19 (2004). 79. ABREGO, supra note 19, at 58. 80. Id. 81. Schmalzbauer, supra note 79, at 1317-1331.

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would rather remain with their loved ones, view migration as the only available measure to save their own lives and provide for their families.”82 Worth noting from the above passage, is that the “immigration strategy,” both for transnational and non-transnational families is a response to macro political and economic circumstances in their home countries: circumstances that limit or completely erase their chances of economic success and upward mobility. Many immigrants leave their countries not because they simply want to improve their economic status, but because they no longer have access to basic necessities, such as a living wage or adequate medical care for their families.83 The decision to move to the United States is a last resort for mere survival. The emotional effects of transnationalism in particular on families are profoundly negative.84 As Schmalzbauer writes, “Transnational children face many challenges. Growing up in and between two cultures, and always being separated from one of them, they lack cultural fluency and comfort in either. This can trigger a host of emotional and behavioral problems.”85 In Abrego’s study of Salvadoran children in transnational families, she writes “They felt a deep sense of loss, even years after the family separation. They felt strongly that their parents’ migration had been a failure and that they had nothing positive to say about being members of a transnational family; they suffered immensely through the separation—crying most profusely throughout [interviews].”86 It is the enforcement of current immigration policies that have created the structural conditions that have produced the discussed effects. It is because current immigration laws have made it increasingly difficult for families to move to the United States legally that immigrant families must suffer experiences such as dangerously violent journeys across Mexico, harsh conditions in detention centers, employer exploitation, economic hardship, and most notably, the separation of their families. B. Addressing Immigrant and Criminal Myths From these observations, it is evident that U.S. immigration policy continues to directly influence the deaths, pain, and suffering of a great deal of people. Such legislation, then, can never be considered moral, and so is unjust. 82. 83. 84. 85. 86.

ABREGO, supra note 19, at 44. Id. Id. Schmalzbauer, supra note 79, at 1317-1331. ABREGO, supra note 19, at 152.

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Some may argue that these laws are not unjust because their creators did not merely have the intention of causing the deaths and suffering of thousands of people. Rather, they passed them with the intention of protecting the American economy and its citizens. The laws do not cause pain and suffering for the sake of doing so. Thus, these policies are justified. While the above argument is valid, it is not sound because it is predicated on the assumption that immigrants, both documented and undocumented, harm the American economy and its citizens. The idea that immigrants have a negative impact on the American economy and its workers and bring crime is simply not true. On the contrary, as President Obama’s remarks suggested, the majority of studies suggest that immigrants have a positive impact on the U.S. economy and are less likely to commit crime. One study summarizes this by concluding the following: “Economists generally agree that the effects of immigration on the U.S. economy are broadly positive. Immigrants, whether high- or low-skilled, legal or illegal, are unlikely to replace native-born workers or reduce their wages over the long-term [. . .]. Indeed, the experience of the last few decades suggests that immigration may actually have significant long-term benefits for the native-born, pushing them into higher-paying occupations and raising the overall pace of innovation and productivity growth.”87 Moreover, the notion that immigrants are criminals or are likely to bring crime is undeniably refuted by the evidence. Studies and statistics show that higher immigration is associated with lower crime rates, and that immigrants are less likely than their native-born counterparts to be incarcerated, and are less likely to engage in criminal behavior.88 Though this is

87. The Effects of Immigration on the United States’ Economy, supra note 59. See also: Facts About Immigration and the U.S. Economy: Answers to Frequently Asked Questions, supra note 59; Jeffrey Sparshott, Immigration Does More Good Than Harm to Economy, Study Finds, WALL STREET JOURNAL (Sept. 22, 2016), http://www.wsj.com/articles/immigration-does-more-good-than-harm-to-economy-study-finds-1474568991; Hesson, supra note 59. 88. Walter Ewing et al., The Criminalization of Immigration in the United States, AMERICAN IMMIGRATION COUNCIL (July 13, 2016), https://www.americanimmigrationcoun cil.org/research/criminalization-immigration-united-states. See also: Fact Check: Immigration Doesn’t Bring Crime into U.S., Data Say, PBS NEWSHOUR (Feb. 3, 2017), http://www.pbs .org/newshour/rundown/fact-check-immigration-doesnt-bring-crime-u-s-data-say/; Krishnadev Calamur, Are Immigrants Prone to Crime and Terrorism?, THE ATLANTIC (June 15, 2016), https://www.theatlantic.com/news/archive/2016/06/immigrants-and-crime/486884/.

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true of all ethnic groups, it is especially true for unauthorized immigrants from Mexico, El Salvador, and Guatemala.89

THE MORAL, LINGUISTIC, AND LEGISLATIVE CONCLUSION: RADICAL IMMIGRATION REFORM AND REIMAGINING IMMIGRANTS AND REFUGEES In light of this,90 the first stated conclusion stands: current immigration legislation is immoral, and therefore unjust. Thus, we are morally obligated to radically change current immigration policies and current popular methods of thinking about the law. At minimum, the U.S. government must pass immigration policies that will allow the comprehensive and practical migration of peoples displaced by geopolitics. Furthermore, because both documented and undocumented immigrants are disenfranchised by the inequalities and stratifying structural barriers created by current immigration laws, we are morally obligated to pass legislation that will dismantle the disadvantages that have prevented these immigrants from thriving economically and integrating socially into the United States. In doing so, we shall move further in the direction of justice, and with good reason. For as was discussed, justice ought to be the focal point of our legislative inquiries and deliberations. In consideration of my discussion, it is evident that past and current discourse has been and continues to be instrumental in shaping the way we imagine “the immigrant.” The reformation of our immigration policies will require a transition in legal discourse from a distorted and confused framework based on flawed presuppositions and criminalizing rhetoric in the law and popular culture to a more comprehensive, critical, and enriched understanding of transnational peoples. The discussed reasons91 for Central and South American immigration demonstrate that it is out of necessity and not desire that people emigrate from the Americas to the U.S. The word “immigrant” carries connotations of free and willful movement: an awareness and control of a deliberate choice to emigrate. Though many immigrants from Central and South America are in control of and take ownership of their choice to move to the United States, the connotations of “immigrant” subvert the fact that it is only after these families are convinced that given the social, political, and economic conditions of their home countries, they will not survive if they 89. Immigration Myths and Facts, AMERICAN CIVIL LIBERTIES UNION (2017), https:// www.aclu.org/other/immigration-myths-and-facts. 90. See Section b. 91. See Section a.

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stay, and are forced to “choose” to leave. While we may not think of these immigrants as “refugees” in the contemporary sense, the term more adequately describes the conditions that have displaced these peoples. It is important, then, that the discourse we operate in when deliberating policies that affect these peoples adequately describes the complex and nuanced experiences that cause them to be labeled in such a manner. These conclusions may seem drastic and extreme. Millions of peoples are displaced by geopolitics today.92 Furthermore, scholars and intellectuals have debated greatly about how best to implement rational, workable, economically sensible, and humane immigration reform. The task is a daunting one indeed. The goal of this article is by no means a template for immigration reform. Rather, my goal is to illustrate that no matter what we do, we are obligated to pass legislation that will lessen the pain and suffering of the thousands of people that undergo the above described experiences. The paths we may take in tackling such a task are unclear. Nevertheless, that is not sufficient reason to remain where we are. Though the challenge of negotiating the current geopolitical realities we find ourselves in is daunting, the practical first step would be to begin by removing the shadows of illegality that brood over the thousands of undocumented immigrants in the U.S. today.

92. With 1 Human in Every 113 Affected, Forced Displacement Hits Record High, UNHCR (June 20, 2016), http://www.unhcr.org/news/press/2016/6/5763ace54/1-human-113affected-forced-displacement-hits-record-high.html.

FROM THE INDEPENDENT COURT TO POLITICS AS USUAL: EVIDENCE AND CONSEQUENCES OF A POLITICIZED AND PARTISAN SUPREME COURT

Austin Steinhart*

The death of Justice Antonin Scalia brought to light the consequences of the development of a political and partisan Supreme Court. While the Court has historically served as the independent and isolated branch of government that provides judicial review devoid of political influences, I will argue that it is beginning to succumb to the influences of politics. I will begin by providing evidence of a newly political Court which includes the evolution of the appointment process, the changing role of Supreme Court law clerks, and the increase of one vote majorities. Next, I will turn to a discussion of the consequences of a political Supreme Court, namely the weakening of public confidence in the Court’s decisions and the destabilization of jurisprudence. Lastly, I will look toward the future of this trend as there is little evidence that supports a departure from this new partisan and political Supreme Court. With the election of Donald J. Trump as the 45th President and the potential for up to three justices to step down in the next four years, the future of the makeup of the Supreme Court is riddled with uncertainty and volatility.

I.

INTRODUCTION

With the passing of the Honorable Justice Antonin Scalia in February of 2016, the Supreme Court now faces the challenge of an even numbered bench. While it is not uncommon for the Court to function with an even number of justices—nineteen percent of decisions passed down since 1946 were decided by an even number of votes—the current shorthanded bench poses an unprecedented problem as the sitting justices comprise an even 44 split along ideological lines.1 While past justices were often found to drift in their ideologies while on the court, for the first time in history the cur* Austin Steinhart is a second year political science and economics major. He plans to attend law school and hopes to work in public policy. Editor: Amy Hedlund is a fourth year History major. She plans on attending law school after graduation. 1. Mark Fahey, The Supreme Court Can Deal with Eight Justices, CNN (Mar. 3, 2016, 10:31 AM), http://www.cnbc.com/2016/03/03/the-supreme-court-can-deal-with-eight-justices .html.

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rent makeup of the court finds the Republican-appointed Justices—Kennedy, Thomas, Alito, and Roberts—further to the right of the four Democratic-appointed Justices—Ginsburg, Breyer, Sotomayor, and Kagan.2 With recent 4-4 rulings of high profile cases, such as United States v. Texas 3 in 2016, the passing of Scalia exposes a growing problem within the modern court. After John G. Roberts’ first term as Chief Justice of the Supreme Court, he worried that it was becoming harder “for the public to respect the Court as an impartial institution that transcends partisan politics,” due to the increasing polarization of politics as well as a number of recent politicized court decisions.4 As a result of this dangerous development, Justice Roberts made it a “high priority to keep any kind of partisan divide out of the judiciary,” during his tenure as chief justice, citing the need for the court to serve as a beacon of stability in this increasingly polarized government.5 In addition, Justice Roberts aimed to prioritize unanimity on the court by “speak[ing] with one voice” in order to promote the “stability of the law and the continuity of the Court.”6 This article will argue that Chief Justice Roberts’ attempts to reform the Court were futile, as the Supreme Court is on an irreversible course toward becoming a political and partisan institution. In order to do this, I will first show how the court has become both a politicized and partisan institution through a historical analysis of the evolution of three of the Court’s most critical features. These include the increasingly public and ideologically driven appointment process, the role and influence of law clerks—justices’ closest advisors—and the growing phenomenon of minimum-winning coalitions. Next, I will discuss the consequences of this new development—principally a deterioration of public perception of the court as well as a destabilization of past and present jurisprudence. Lastly, I will look toward the future of the court to examine whether the politicization of the court is simply a political fad or a lasting development. Ultimately, with President Donald J. Trump’s nomination of Judge Neil Gorsuch of the 10th U.S. Circuit Court of Appeals, there is little evidence that supports a departure from this new partisan and political Supreme Court.

2. Neal Devins and Lawrence Baum, Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court, 35 WILLIAM & MARY L. REV. (forthcoming January 2017). 3. United States v. Texas, 579 U.S. 15-674. 4. Jeffrey Rosen, Robert’s Rules, THE ATLANTIC (Jan/Feb, 2007), https://www.the atlantic.com/magazine/archive/2007/01/robertss-rules/305559/. 5. Id. 6. Id.

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It must be noted that while the Roberts Court has held the highest percentage of unanimous decisions, this does not provide evidence of a court that is above the partisan politics of the modern age.7 In addition, justices cannot be expected to consistently vote in accordance with their partisan ideology.8 Justices appointed by Republican presidents are still conservative despite unanimously deciding that police cannot search digital information on a cellphone without a warrant.9 Likewise, Justices appointed by a Democrat are still liberal despite unanimously deciding that President Obama overstepped his executive power by appointing public officials without the advice and consent of the Senate.10 Ultimately, as Barack Obama articulated in his vote against the confirmation of Chief Justice John Roberts in 2005, “both a Scalia and a Ginsburg will arrive at the same place most of the time on those ninety-five percent of the cases,” however what matters on the Supreme Court is the “five percent of cases that are truly difficult.”11

II.

EVIDENCE

FOR THE

POLITICAL SUPREME COURT

The United States Supreme Court has a rich history of serving as the foundation of political independence and as the ultimate arbiter of disputes in the country. For almost the entirety of its existence, the Highest Court has served as a well-respected, independent institution that articulates the final law of the land. While the court has seen a share of political cases and partisan justices, this assessment of the court still holds true. The court has seen a number of politicized cases in its history, however, these cases were few and far between in the earlier period of the court. In addition, while judges have been labeled as “conservative” or “liberal” dating back to the 19th century, justices often crossed traditional party lines and found their voting records in opposition to the party of the president that nominated them. However, over the last seventy-five years, this apolitical body has begun to break down and a new partisan and political court has emerged. One traditional measure of the “relative location of U.S. Supreme Court justices on an ideological continuum” called the Martin-Quinn scores, shows both an increasing divide between the ideology of Republican-ap7. Adam Liptak, Compromise at the Supreme Court Veils Its Rifts, N.Y. TIMES. July 2, 2014, at A1. 8. Devins and Baum, supra note 3. 9. Riley v. California, 573 U.S. 13-132 (2014). 10. National Labor Relations Board v. Noel Canning, 573 U.S. 12-1281 (2014), aff’d 705 F.3d 490 (D.C. Circ. 2013). 11. Barack Obama, CONFIRMATION OF JOHN ROBERTS (2005).

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pointed justices and Democratic-appointed justices and an increased ideological sorting of the justices.12 According to the Martin-Quinn scores, before 2010 the Court was never divided strictly along partisan lines and justices within the same party affiliation often still had large deviations between the Martin-Quinn scores—neither of those statements apply today.13 I will look at the evolution of three of the Court’s primary features— the appointment process for justices, the role of law clerks, and one vote majorities—to examine how the court transformed from an institution enshrined by its independence and its isolation from politics, into an institution in which party identity has become the single most important determinant of justices’ voting behavior. A. The Appointment Process The appointment process of Supreme Court justices has evolved tremendously over the past hundred years. While the Constitution subjects the president’s Supreme Court nominations to the “advice and consent” of the Senate, the first modern confirmation hearing in which a nominated justice was interviewed by the Senate was not until 1925 with the hearing of Justice Harlan Fiske Stone.14 Before this date, it was unheard of to question nominated justices. When asked about his nomination of Salmon P. Chase, Abraham Lincoln responded, “We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it.”15 In the modern era of the court, factors considered when choosing a potential nominee for the Supreme Court included professional merit, loyalty to the president, repaying a political debt, political ideology. However, in recent years, ideology has taken an overwhelming role at center stage in the nomination process. From the 1930s through the 1960s, multiple factors were considered in presidents’ criteria for Supreme Court justices, ranging from political cronyism and repayment to paying back political debt to electoral advantages. President Truman and President Kennedy both nominated justices that they had personal ties with while President Eisenhower’s nomination 12. Andrew D. Martin & Kevin M. Quin, MARTIN-QUINN SCORES, http://mqscores .berkeley.edu/ (last visited Mar. 17 2017). 13. Id. (The range of Martin-Quinn scores among the four Democrats in the 2010 Term was .678; in the 2011 Term, it was .947. In contrast, the ranges among the seven Democrats in the 1941-1944 Terms were, successively, 3.489, 3.475, 3.349, and 3.095.) 14. Norman Dorsen, The Selection of U.S. Supreme Court Justices, 4 INT. J. CONST. LAW, 652, 659 (2006). 15. Stephen Carter, Let the Nominee Stay Home, N.Y. TIMES, May 2009, at WK9.

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of Earl Warren stemmed from Warren’s help in securing the support Eisenhower need to win the 1952 Republican Party convention.16 While ideology was one of the many factors presidents considered, it was by no means the most important factor.17 Due to an emphasis on factors other than political ideology in their nomination, nominees of both parties often had voting records that differed from the ideology of the president that appointed them. Republican presidents routinely appointed justices who would turn out to hold liberal positions on issues ranging from civil rights to presidential power.18 Chief Justice Earl Warren, nominated by Republican President Eisenhower,19 lead one of the most liberal eras of the Supreme Court with decisions such as Brown v. Board of Education 20 and Gideon v. Wainright.21 President Eisenhower also nominated Justice William J. Brennan Jr., who was an outspoken liberal authoring landmark cases such as Baker v. Carr 22 and New York Times Co. v. Sullivan.23 However, this strategy dramatically changed with the election of President Ronald Reagan in 1980 as Reagan made ideological considerations “the most important criteria” in the screening of judicial candidates.24 By nominating justices with a consistent conservative voting record, such as Antonin Scalia and William Rehnquist, President Reagan dramatically altered the landscape of Supreme Court nominations, turning these nominations into a political tool to deliberately transform the role of the Supreme Court. While originally a tool only utilized by Republicans, these political nominations have become the pervasive tactic used in choosing Supreme Court justices on both sides of the aisle. President George W. Bush sought to nominate the “most conservative possible Supreme Court justices” in his nomination of John Roberts, Harriet Miers and Samuel Alito in 2005.25 While both President Clinton and President Obama sought to diversify the bench and avoid drawn out confirmation battles, ideology remained at the 16. Devins and Baum, supra note 3. 17. Id. 18. Marc Thiessen, Why Are Republicans so Awful at Picking Supreme Court Justices?, THE WASHINGTON POST (July 2, 2012), https://www.washingtonpost.com/opinions/marc-athiessen-why-are-republicans-so-awful-at-picking-supreme-court-justices/2012/07/02/gJQAH FJAIW_story.html?utm_term=.88110e73cc5b. 19. Journalist would later claim that President Eisenhower called the nomination of Justice Warren and Justice Brennan two of the worst mistakes of his presidency. 20. Brown v. Board of Education of Topeka, 349 U.S. 294 (1955). 21. Gideon v. Wainright, 372 U.S. 335 (1963). 22. Baker v. Carr, 369 U.S. 186 (1962). 23. New York Times Co. v. Sullivan, 376 U.S. 254 (1964). 24. Devins and Baum, supra note 3. 25. Jeffrey Toobin, THE NINE: INSIDE THE SECRET WORLD OF THE SUPREME COURT, 345 (Anchor Books eds., 2008).

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forefront of each of their nomination choices with nominations such as Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor.26 Through this shift in focus from various factors to solely one of ideology when deciding a nomination, both parties attempted to limit the uncertainty of justices’ voting behavior while on the bench. Due to the evolution of the appointment process, presidents are now confident that the justices they nominate will uphold jurisprudence in a predictable and reliable manner. With this decrease in uncertainty, the politicization of the court has only increased as the outcome of most cases be predicted with much higher accuracy. Due to this trend, the selection of cases by the Supreme Court are now closely watched as the final outcome of these cases has become more predictable. The uncertainty no longer lies on the outcome but rather in the selection of cases the Court will hear. B. Supreme Court Law Clerks In 1882, Justice Horace Gray hired the first law clerk and in 1886 Congress granted funds to hire “stenographic clerks.”27 Throughout their history, Supreme Court law clerks have served a unique and crucial role assisting justices in tasks ranging from recommending petitions for writ of certiorari to preparing justices for oral argument to drafting opinions. Due to their proximity to justices and their role in deciding much of the direction and legal language used by the Court, the ideologies of the clerks exert a substantial influence on the justices’ decisions and votes as well as “exercise a separate and independent influence over how the justices vote on the merits of cases.”28 These influences manifest in several different areas of law clerks’ duties. A 2014 study conducted by Black, Boyd, and Bryan found that approximately seventy-five percent of votes for writ of certiorari followed the recommendation made by the law clerk.29 Furthermore, when a justice’s ideologically is similar to a clerk’s employing justice, the voting justice is “more than twice as likely to follow that recommendation than when the justice is ideologically distant.”30 Law clerks also yield significant influence 26. 27.

Devins and Baum, supra note 3. Todd Peppers, COURTIERS OF THE MARBLE PALACE: THE RISE AND INFLUENCE OF THE SUPREME COURT LAW CLERK, 328 (Stanford Univ. Press ed., 2006). 28. Todd C. Peppers & Christopher Zorn, Law Clerk Influence on Supreme Court Decision Making: An Empirical Assessment, 58 DEPAUL L. REV. 51, 53 (2008). 29. Ryan C. Black, Christina L. Boyd, and Amanda C. Bryan, Revisiting the Influence of Law Clerks on the U.S. Supreme Court’s Agenda-Setting Process, 98 MARQ. L. REV. 75, 75 (2014). 30. Id. at 102.

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during oral argument. A 2014 study conducted by Johnson, Stras, and Black found that Justice Blackmun asked over forty percent of the questions his clerks suggested, thus reinforcing the crucial role that law clerks play in influencing and affecting how justices perceive cases.31 Lastly, Albert Yoon found that justices had a “greater reliance by judges on their law clerks when writing opinions” in recent years due to multiple factors including a protracted confirmation process, higher caseloads demands, and declining real salaries.32 Over the last few decades, the selection of law clerks has become an increasingly polarized procedure as justices have begun choosing law clerks trained by judges that closely match their own ideology.33 This is in direct opposition to earlier courts in which justices chose law clerks who were trained by federal court judges who were appointed by both Democratic and Republican presidents. For example, Chief Justice Warren Burger, a conservative justice appointed by President Nixon in 1969, hired approximately the same number of law clerks who worked for judges appointed by Democratic presidents as Republican presidents.34 In contrast, Justice Clarence Thomas, a conservative judge appointed in 1991, has hired every single of his eighty-four law clerks from appellate court judges appointed by Republican presidents.35 In a slight deviation from this trend, Justice Scalia hired one liberal clerk every year, supposedly just to have someone to spar with.36 Today, liberal justices are more likely to hire law clerks that first worked for judges appointed by a Democrat while conservative justices are more likely to hire from Republican appointed judges. This shift in the makeup of the justices’ closest colleagues, apart from their fellow justices, will have dire consequences for the future of the court. Ultimately, the future direction of the Court will be heavily determined by the makeup of the law clerks’ ideology. As this institutional structure becomes increas-

31. Timothy R. Johnson, David R. Stras, and Ryan C. Black, Advice from the Bench (Memo): Clerk Influence on Supreme Court Oral Arguments, 98 MARQ. L. REV. 21, 21 (2014). 32. Albert Yoon, Law Clerks and the Institutional Design of the Federal Judiciary, 98 MARQ. L. REV. 131, 131 (2014). 33. Adam Liptak, A Sign of the Court’s Polarization: Choice of Clerks, N.Y. TIMES, Sept. 7, 2010, at A1. 34. Id. 35. Id. 36. Margaret Talbot, Supreme Confidence, THE NEW YORKER (March 28, 2005), http:/ /www.newyorker.com/magazine/2005/03/28/supreme-confidence.

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ingly polarized, we should expect to see a strengthening partisan approach to the law as well.37 C. One Vote Majorities In the early years of the Supreme Court, there is very little evidence of a partisan divide.38 The Court attempted to make unanimous decisions whenever possible, as they aimed to speak with one unified voice. When cases were not unanimous, minimum-winning coalitions were extremely unlikely, appearing in less than two percent of the Supreme Court’s rulings from 1801 to 1940.39 Dissenting opinions were found in less than twenty percent of cases in almost every term during this time period, making dissenting opinions uncommon.40 In addition, by looking at both the frequency and division of dissenting votes in the Court during this period, there is a clear pattern of justices voting across partisan lines. Devins and Baum’s analysis of the seventy-five most important cases between 1790 and 1937 in which there were at least two dissenting votes showed that “in only one [case] were all of the justices on one side appointed by presidents of one party and all of the justices on the other side appointed by presidents of the other party.”41 Likewise, an analysis of cases from 1938 to 2010 yields similar results. Only one case divided all the Court’s Republican-appointed justices from all their Democratic-appointed colleagues in 322 cases that the Guide to the U.S. Supreme Court lists as important with at least two justices dissenting in that period.42 Miranda v. Arizona 43 in 1966 serves as an example of the nonpartisan tendencies of the Court. While the case was decided by a 5-4 decision, the majority was comprised of two Republican-appointed justices and three Democratic appointed justices whereas the dissenters contained two Republican and two Democratic appointed justices. Despite Miranda serving as a foundational case in criminal procedure, this decision did appear to be swayed by any underlying political agenda. 37. William E. Nelson, Harvey Rishikof, I. Scott Messinger, Michael Jo, The Liberal Tradition of the Supreme Court Clerkship: Its Rise, Fall, and Reincarnation?, (Nov. 30, 2009). 62 VAND. L. REV. 1749, 1751 (2009). 38. The period from 1801 to 1938. 39. David Paul Khn, The Incredible Polarization and Politicization of the Supreme Court, THE ATLANTIC, (Jun. 29, 2012) https://www.theatlantic.com/politics/archive/2012/06/ the-incredible-polarization-and-politicization-of-the-supreme-court/259155/. 40. Id. 41. David G. Savage, GUIDE TO THE U.S. SUPREME COURT, 1276-94 (CQ Press ed., 5th ed. 2010).; Devins and Baum, supra note 3. 42. Savage supra note 42.; Devins and Baum, supra note 3. 43. Miranda v. Arizona 384 US 436 (1966).

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Over the last fifty years, the judicial norms of the Court have begun to break down, with the most dramatic shift since 2010. Since 1940, more than sixteen percent of the Court’s rulings have been decided by minimum-winning coalitions.44 In the Roberts Court, over twenty-one percent of decisions were decided by a 5-4 vote, more than any previous court. The previous Court, the Rehnquist Court, decided just over twenty percent of cases by a 5-4 vote. This increase is even more striking when combined with the increase of voting along party lines. Over seventy percent of the cases decided by a minimum-winning coalition in the 2010 term to the 2015 term were split along ideological lines. Just in the last four terms there have been cases regarding voting rights, campaign finance, marriage equality, and affirmative action, all decided by a one-vote margin evenly split along ideological lines.45 The four justices appointed by a Democratic president—Ginsburg, Breyer, Sotomayor, and Kagan—form one bloc while four justices appointed by a Republican president—Scalia, Thomas, Alito, and Roberts—form the other.46

III.

CONSEQUENCES

OF A

POLITICAL SUPREME COURT

After examining the increased partisanship that has created a Supreme Court that commonly splits along ideological lines, I will now turn to an examination of the consequences that this recent trend has had on the institution of the judiciary and its legitimacy. This increasing polarization and partisanship has put a strain on the judiciary, a trend is found across many political institutions in the modern age. While administrations have changed and Congress has flipped, the isolated and independent Supreme Court has historically reinforced the separation of powers that the Founders sought to establish, serving as the bedrock of stability. However, due to the increasingly politicization of the Court, the judiciary is showing signs of weakness, both in the eyes of the public and in the establishment

44. Khn, supra note 40. 45. Shelby County v. Holder, 570 U.S. 12-96 (2013).; McCutcheon v. FEC, 134 U.S. 1434 (2014).; Obergefell v. Hodges, 576 U.S. 2584 (2015).; Fisher v. University of Texas, 579 U.S. 14-981 (2016).; Justice Kagan did not take part in the consideration or decision of the case Fisher v. University of Texas as she served as solicitor general during an earlier hearing of the case in 2013. Excluding Justice Kagan, the decision still fit the aforementioned division. 46. Justice Kennedy often serves as the swing vote on the bench despite being appointed by a Republican president. In the four cases discussed, Justice Kennedy voted with the liberal bloc in the latter two—Obergefell v. Hodges and Fisher v. University of Texas— and voted with the conservative bloc in the former two—Shelby County v. Holder and McCutcheon v. FEC.

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of jurisprudence. The role of the courts will be called into question as they face what could be their biggest challenge in their history. A. Weakening of Public Perception After the ratification of the Constitution, the judiciary was seen as the weakest of the three branches.47 It was not until the historic case of Marbury v. Madison 48 in 1803 that the Court claimed the power of judicial review, dramatically increasing its power. Since this case, the Supreme Court has established its legitimacy through its separation from the political process and its detachment from the whims of society. While our society has placed a high value on amending the Constitution to provide a purer democracy, citizens have historically looked toward the courts to uphold American values and constitutional protections. With the rise of public opinion modeling in our modern democracy, public opinion has paradoxically become a basis of legitimacy for the Court.49 Traditionally, the Supreme Court found legitimacy in the legal expertise of the justices as opposed to the public as the public had a rudimentary understanding of the functions of the Court. However, as high profile cases began to face broader media coverage from the mainstream media, a wider understanding of the function and rulings of the Court by the public developed.50 Due to this increase in legal fluency, “prevailing tides of public sentiment create an active, meaningful constraint” on justices’ rulings and decisions as the public began to actively engage in the legal merits of high profile cases.51 Historically, the Supreme Court has consistently polled as the most highly respected branch of government. While this is still true today, the Supreme Court’s approval rating has steadily dropped with public approval of the Court at an all-time low. A national survey by the Pew Research Center conducted in March 2013 found that fifty-two percent of people viewed the Court favorably, the lowest since it began the survey in 47. Article III, where the Constitution details the judiciary, is the shortest section in the Constitution. The Constitution does not clearly define the role of the judiciary beyond the phrase “judicial power” and leaves much of the details of this branch to Congress’s discretion. 48. Marbury v. Madison 5 U.S. 137 (1803). 49. Or Bassok, The Supreme Court’s New Source of Legitimacy, 16 U. PA. J .CONST. L., 153, 197. (Oct. 2013). 50. How News Happens: A Study of the News Ecosystems of One American City, PEW RESEARCH CENTER (Jan. 11, 2010), http://www.journalism.org/2010/01/11/how-news-hap pens/. 51. Christopher J. Casillas, Peter K. Enns, Patrick C. Wohlfarth, How Public Opinion Constrains the U.S. Supreme Court, 55 AM. J. OF POLI. SCI. 74, 76 (Jan. 2011).

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1985, while thirty-one percent viewed it unfavorably.52 Furthermore, a study by Gallup from July 2016 found that forty-two percent of Americans approve of the way the Supreme Court is handling its job, while fifty-two percent disagree.53 While the recent decline of public support for the Supreme Court cannot be explained by any single factor, it is clear that partisan extremism is damaging the public’s perception of the Supreme Court. As Chief Justice Roberts has said, the politicization of the Court has made “it harder for the public to respect the Court as an impartial institution that transcends partisan politics.”54 Many Americans now view the Court as a political actor that does not act independently of the political environment. These trends only serve to increase the disaffection of the public’s opinion of the Supreme Court. As nominations become an ever-increasing partisan and public spectacle and justices are chosen based exclusively on ideological factors, the once independent pillar of the rule of law will slowly begin to crack.55 B. Destabilization of Jurisprudence In addition to a decay of public support in the legitimacy of the Court, the recent trends discussed will have consequences for the rule of law. As discussed earlier, the Court has seen an unprecedented number of minimum-winning coalition cases, a trend that is likely to continue.56 As opposed to unanimous decisions, which are hard to overturn and “contribute to the stability of the law and the continuity of the Court,” closely divided 5-4 decisions led to an increased chance of the law being overturned, views that both Chief Justice Roberts and Justice Ginsburg have endorsed.57 Cases decided by a single vote are not a reason for concern in and of them52. Supreme Court’s Favorable Rating Still at Historic Low, PEW RESEARCH CENTER, (March 25, 2013), http://www.people-press.org/2013/03/25/supreme-courts-favorable-ratingstill-at-historic-low/. 53. Supreme Court, GALLUP, http://www.gallup.com/poll/4732/supreme-court.aspx (last visited Mar. 17, 2017). 54. Rosen, supra note 5. 55. Stephen Collinson, Prime-time Justice: Trump Puts on a Flawless Show, CNN (Feb. 1, 2017, 1:03 PM), http://www.cnn.com/2017/01/31/politics/donald-trump-supreme-court-announcement/.; (For many, the primetime announcement of Judge Neil Gorsuch as President Trump’s Supreme Court nominee was reminiscent of Donald Trump’s days as a reality T.V. show host. Trump turned the “ornate East Room of the White House into the centerpiece of a well-orchestrated television production.”) 56. Part IV will more thoroughly discuss the likelihood of minimum-winning collations increasing in the future. 57. Rosen, supra note 5; Adam Liptak, On Supreme Court, Does 9-0 Add up more than 5-4?, N.Y. TIMES, Aug. 12, 2014, at A13.

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selves—the reason for concern stems from the composition of these decisions. As stated in Part II, in over seventy percent of the cases decided by a minimum-winning coalition in the 2010 term to the 2015 term, one bloc consisted of four Republican appointed justices—Scalia, Thomas, Alito, and Roberts—while the other consisted of the four Democratic appointed justices—Ginsburg, Breyer, Sotomayor, and Kagan.58 With the makeup of decisions following ideological lines, a single shift in the court could see a reversal of the law. In United States v. Texas 59 , a case concerning the constitutionality of President Obama’s Deferred Action for Parents of Americans (DAPA) program, the court was split 4-4 with Justice Ginsburg, Breyer, Sotomayor, and Kagan upholding the program and Justice Kennedy, Thomas, Alito, and Roberts striking it down. Thus, the preceding holding was upheld with the intention of hearing the case when the Court returned to full strength. If this case reaches the Supreme Court again, the case will be decided as soon as the newly nominated justice, Judge Gorsuch, is confirmed. If a Republican nominates the next justice, is it all but certain that they will rule with the conservative bloc arguing that President Obama overstepped his executive authority while if the justice is nominated by a Democratic president, they will surely upheld President Obama’s unilateral action. With the formation of a partisan and political court, United States jurisprudence is put at risk. As a court with five Republican-appointed justices would decide cases quite different from a court that was composed of five Democratic-appointed justices, jurisprudence has the potential to be sway solely by the most recently appointed justice.60 A trend found by Springs, James, and Hansford in which “a precedent is more likely to be overruled when it is ideologically incongruent with the preferences of a subsequent Court,” will only be exasperated as a single justice will be able to flip the leaning of the Court.61 Consider the 2013 case Shelby County v. Holder, a case regarding the constitutionality of requiring federal preclearance for a change to a state’s voting laws.62 Shelby was decided by a 5-4 vote with Justice Kennedy join58. Kedar Bhatia, Final October Term 2015 Stat Pack, SCOTUSBLOG (June 29, 2016, 11:25 PM), http://www.scotusblog.com/2016/06/final-october-term-2015-stat-pack/.; (A total of 87 cases were decided by a 5-4 decision in the terms from 2010 to 2015 with 63 being decided along ideological lines. The ninth justice, Justice Anthony Kennedy, often served as the “swing vote,” joining the conservative bloc fifty-six percent of the time and the liberal bloc forty-four percent of the time during this period). 59. United States v. Texas, 579 U.S. 15-674. 60. Devins and Baum, supra note 3. 61. James F. Spriggs and Thomas G. Hansford, Explaining the Overruling of U.S. Supreme Court Precedent, 63 J. of Politics 1091, 1107 (2001). 62. Shelby County v. Holder, 570 U.S. 12-96 (2013).

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ing the conservative bloc to form a majority. If a case regarding a similar provision of the Voting Rights Act of 1965 reaches the Supreme Court again, a small shift in the makeup of the court could reverse the decision and thus the jurisprudence established in a Supreme Court decision. It would simply take a single conservative justice to retire and a Democratic president to be in office. The Court would then flip and contain five liberal justices and four conservative justices, leading to an all but certain outcome of a 5-4 decision reversing the 2013 Shelby case. The current composition of the Court contains the real and consequential risk of unprecedented volatility regarding the decisions of the Supreme Court. The Supreme Court has served as the final law of the land providing a singular and clear interpretation of our nation’s most difficult and testing issues. However, with the rise of the Court’s first ever political and partisan era, the institution of the judiciary will be tested as it attempts to survive one of its most pertinent challenges yet.

IV.

THE FUTURE

OF THE

POLITICAL SUPREME COURT

With the election of President Donald J. Trump and his subsequent nomination of Judge Neil Gorsuch of the 10th U.S. Circuit Court of Appeals, the increasing politicization and partisanship of the Supreme Court looks certain to continue. Due to the successful obstruction of President Obama’s nominee, Judge Merrick Garland of the D.C. U.S. Circuit Court of Appeals, President Trump has nominated a justice “very much in mold” of late Justice Antonin Scalia, confirming his commitment to nominate a justice that has a proven conservative voting record and is supported by conservative legal institutions such as the Heritage Foundation.63 According to a study conducted by a group of law professors, Judge Gorsuch was found to have the highest likelihood of being the most “Scalia-like” of the potential nominees on President Trump’s shortlist.64 Judge Gorsuch’s nomination will be nothing short of a spectacle as his fundamental beliefs about the biggest legal questions of the day will be 63. Vishakha Sonawane, Donald Trump Wants Supreme Court Judge ‘Very Much In Mold’ Of Justice Antonin Scalia, INT. BUS. TIMES (Oct. 10, 2010, 5:13 AM), http://www.ib times.com/donald-trump-wants-supreme-court-judge-very-much-mold-justice-antoninscalia-2428790. 64. Jeremy Kidd, Riddhi Sohan Dasgupta, Ryan D. Walters, and James Cleith Phillips, Searching for Justice Scalia: Measuring the ‘Scalia-ness’ of the Next Potential Member of the U.S. Supreme Court, SOCIAL SCIENCE RESEARCH NETWORK (Jan. 27, 2017) (The study looked at fifteen of the twenty-one shortlisters and used three measures to gauge the “Scalia-ness” of each potential nominee: how often each potential nominee engages in or promotes originalism, cites Justice Scalia’s non-judicial writings, and writes separate opinions).

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publicly questioned during his congressional hearing. Judge Gorsuch is likely to hear questions regarding his legal theory on issues ranging from privacy rights to executive authority over foreign policy and immigration. Democrats have already pledged to fight the confirmation of the “stolen seat” while the Republicans have threatened to use the “nuclear option,”—rewriting the rules to get rid of the filibuster, thus requiring only a simple majority to nominate Judge Gorsuch.65 With the nomination—and likely confirmation—of Judge Gorsuch, the current composition of the court is unlikely to change. Although Judge Gorsuch is often considered slightly to the right of his predecessor, Antonia Scalia, Judge Gorsuch will still be a regular member of the conservative bloc making it very unlikely that Judge Gorsuch will serve as a swing vote in a similar capacity as Justice Kennedy currently does.66 Ultimately, for the most political and contentious cases of the preceding terms, Judge Gorsuch will develop a similar voting record to the current sitting conservative justices, signaling little concern for a dramatic deviation from the current tendencies of the Roberts Court. Nevertheless, the possibility of President Trump nominating a second justice will have much further reaching consequences for the Court then the nomination of Judge Gorsuch. Justice Ginsberg, Justice Kennedy and Justice Breyer—eighty-four years old, eighty years old, and seventy-eight years old, respectively—all have the possibility to retire during President Trump’s time in office. As Justice Ginsberg and Justice Breyer are consistent members of the liberal bloc of the Court and Justice Kennedy often serves as the swing vote, President Trump’s potential nomination of a second justice has the power to dramatically alter the makeup of the Supreme Court. With the retirement of any of the aforementioned justices while President Trump is in office, the conservative bloc of the Court will gain a fifth member, creating a conservative majority on the bench. In this scenario, there would be far-reaching implications with the possibility of shifting jurisprudence to the right for decades to come. Ultimately, there is little evidence that supports a departure from this new partisan and political Supreme Court.

65. Michael Gerhardt, The Gorsuch Nomination: What’s Next, SCOTUSBLOG (Feb. 7, 2017, 4:08 PM), http://www.scotusblog.com/2017/02/gorsuch-nomination-whats-next/. 66. Oliver Roeder and Harry Enten, Trump Picks Neil Forsuch, A Scalia Clone, for the Supreme Court, FIVETHIRTYEIGHT (Jan. 31, 2017, 8:04), https://fivethirtyeight.com/features/neil-gorsuch-supreme-court-trump/?ex_cid=538fb.

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CONCLUSION

In an interview after the end of his first term, Chief Justice John Roberts spoke of his greatest predecessor, Chief Justice John Marshall. Justice Roberts wanted to make it his priority, as Marshall did, to discourage his colleagues from writing separate opinions; “I think that every justice should be worried about the Court acting as a court and functioning as a court, and they should all be worried, when they’re writing separately, about the effect on the Court as an institution.”67 Roberts aimed to return the court to its historical roots of unification and legitimacy by changing the prevailing attitude on the bench from the idea of “an assemblage of individual justices” to a one of a unified Court.68 However, as we have seen, Justice Roberts’ aspirations have not been actualized. The Supreme Court has become more politicized than ever before over the past ten years and it appears likely that is a trend that will continue. As the institutions that serve as the cornerstones of the Supreme Court becoming increasingly politicized and partisanship, the Court will continue to become undermined as the political whims of Washington puncture the supposedly untouchable isolation of the Supreme Court. The future of the Court appears to be highly correlated with the number of Supreme Court nominations that the forty-fifth president will have. With the potential for up to three justices to step down in the next four years, President Trump can have a profound effect on the makeup of the Supreme Court and jurisprudence for years to come. In 2008, Barack Obama attempted to become the first ‘post-partisan president,“ who would ”fundamentally change how Washington works“ and unite red America and blue America into the United States of America.69 After eight years in office, the country is more divided than ever and Congress is more deadlocked than ever. Just as President Obama had attempted to usher in a new era of American politics, Chief Justice Roberts’ attempts to alter the current trajectory of the Supreme Court will ultimately be futile as the Court in on an unavoidable path toward politicization.

67. Rosen, supra note 5. 68. Id. 69. Ryan Lizza, The Obama Memos: The Making of a Post-Post-Partisan Presidency, THE NEW YORKER (Jan. 30, 2012), http://www.newyorker.com/magazine/2012/01/30/theobama-memos.; James Hohmann and John F. Harris, 10 Quotes that Haunt Obama, POLITICO (Oct. 2, 2012, 4:51 AM), http://www.politico.com/story/2012/10/10-quotes-that-hauntobama-081895.

THE RESPONSIBILITY TO PROTECT. . . STATE SOVEREIGNTY

Aleksija Vujicic*

The tension between humanitarian intervention and the principles of state sovereignty and non-intervention can be found far back in history. However, the 2005 introduction of the Responsibility to Protect (R2P) brought this debate into international legal discourse for the first time. The Responsibility to Protect asserts that states have duties beyond their borders to help avoid, respond to, and prevent recurrence of circumstances that produce massive human rights violations. This doctrine has created great controversy since its inception due to its perceived promotion of military intervention under the guise of humanitarian aid and its historical use by States as justification for that very action. This article will contend that the United Nations Charter and United Nations Resolutions 50/17, 60/1 and 2625 make it abundantly clear that military intervention for the purpose of humanitarian aid is illegal within the current bounds of international law. It also analyzes two case studies of humanitarian intervention in Kosovo and Turkey, which reveal the substantial consequences of humanitarian intervention. . Ultimately, this article concludes that the current legal understanding of R2P does not legitimize humanitarian intervention and argues that future iterations of R2P should not include such a notion without serious consideration of the potential consequences.

I.

INTRODUCTION

The road to hell is paved with good intentions. . . in the case of humanitarian intervention, even these so-called “good intentions” are often a dubious fa¸cade at best. Tension between the concepts of humanitarian intervention and the principles of State sovereignty and non-intervention has always existed, but this conflict has increased in magnitude over the past few decades, most notably so with the 2005 introduction of the Responsibility to Protect resolution in the United Nations. These concepts seem virtually irreconcilable, as the traditional legal understanding of State sovereignty constitutes an important normative inhibition of military interven* Aleksija Vujicic is a fourth year international development studies major and Spanish minor. Upon graduation, she plans to obtain a dual J.D./M.B.A. degree in the hopes of pursuing a career in the fashion industry. Editor: Jenn Teitell is a third year student studying Political Science and Public Affairs. After graduation, she plans to attend law school.

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tion, and yet one of the most prominent arguments for military intervention is that of humanitarian aid. The Responsibility to Protect (R2P) has created great controversy since its inception due to its perceived promotion of humanitarian intervention, corroborated by its historical use by States as justification for that very action. This article will argue that not only is military intervention for the purpose of humanitarian aid illegal within the current boundaries of the legally-accepted notion of the Responsibility to Protect, but that it should not be formally or even informally included in any future definition of this concept without serious consideration of the potential implications and consequences. A. History of the Responsibility to Protect The moral responsibility to protect lives and prevent large-scale massacres is an idea that can be traced back many centuries; however, the late twentieth century was a turning point in the development and amplification of this notion. During this time, broadcast media became more accessible and widely consumed, showing people across the world images of ongoing wars and mass violence. Suddenly, young people everywhere were able to witness these atrocities as they occurred in real time. The first such event to be broadcasted, and thereby prove to be immensely impactful, was the 1994 Rwandan genocide, which led many to question why the international community did not intervene to prevent the mass slaughter. 1 In 1999, however, came the NATO intervention in former Yugoslavia, which prompted mass debate regarding the legality and wisdom of intervention.2 In conjunction, these two events created global controversy regarding the need for and legality of humanitarian intervention. This prompted the Canadian government to respond by creating the International Commission on Intervention and State Sovereignty (ICISS), which promptly released a report named “The Responsibility to Protect” in 2001. This ICISS report brought R2P to the attention of the public sphere and was the first legal document in which the concept was fully outlined and discussed. The Responsibility to Protect report was novel in that it redefined the concept of State sovereignty as that of a responsibility.3 It advocated the notion that if a State did not uphold this responsibility to its citizens, the international community could use military force to intervene as “the prin1. Kofi Annan, Message to Symposium on the Media and the Rwanda Genocide, in THE MEDIA AND THE RWANDA GENOCIDE, at ix, ix-x (Allan Thompson ed., 2007). 2. NOAM CHOMSKY, THE NEW MILITARY HUMANISM: LESSONS FROM KOSOVO (1999). 3. Int’l Comm’n on Intervention and State Sovereignty (ICISS), The Responsibility to Protect, (Dec. 2001), http://responsibilitytoprotect.org/ICISS%20Report.pdf.

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ciple of non-intervention yields to the international responsibility to protect.â&#x20AC;?4 This idea was met with great contention, which came to a head during the 2005 United Nations World Summit Conference in San Francisco. During this conference, the leaders of nations around the world ultimately decided to include a version of R2P in the Outcome Document. However, their definition of R2P was crucially different than the notion proposed by Canada in the ICISS report. The final definition as agreed upon by the United Nations at the World Summit Conference can be found below in the following replication of paragraphs 138 and 139 from the United Nations General Assembly Resolution 60/1, 2005 World Summit Outcome Document:5 138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility to support the United Nations in establishing an early warning capability. 139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organization as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and International Law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, 4. 5.

Id. G.A. Res. 60/1, 2005 World Summit Outcome (Oct. 24, 2005).

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ethnic cleansing and crimes against humanity and to assist those which are under stress before crises and conflicts break out. The primary difference between UN Resolution 60/1 and the ICISS report was the allowance of, and call for, military intervention in the name of humanitarian aid. While the ICISS Report endorsed military intervention “in extreme cases,” the United Nations called instead for “peaceful means” implemented while “bearing in mind the principles of the Charter and International Law.”6 In order to determine the implications this bears for military intervention within the boundaries of the Responsibility to Protect, it follows that one must analyze the UN Charter and International Law. The most relevant aspects of the UN Charter for the purposes of this article can be found in Article 2, Sections 1, 4 and 7, which are replicated below:7 Article 2 The organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following principles. The Organization is based on the principle of the sovereign equality of all its Members. 4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state or in any other manner inconsistent with the Purposes of the United Nations. 7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which essentially are within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII. As evidenced by the excerpt above, Article 2 of the UN Charter makes it abundantly clear that the structure of today’s international society rests wholly on the mutual recognition of State sovereignty, and though not explicitly stated, the related norm of non-intervention. It is these fundamental principles that call into question the legality of the Responsibility to Protect. The incompatibility of these notions with that of humanitarian intervention is easily recognizable, and it is from this perceived contradic6. 7.

The Responsibility to Protect, supra note 4; G.A. Res. 2005, supra note 5. U.N. Charter art. 2.

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tion that contention arises. The main source of confusion stems from the lack of clarity regarding whether the notion of R2P, as adopted by the UN General Assembly, promotes and legitimizes non-consensual military intervention for the purpose of humanitarian aid. This article will proceed to demonstrate that not only does the current legal understanding of R2P in no way legitimize humanitarian intervention, but also argue that future iterations of R2P should not include such a notion.

II.

CRITICISMS

OF

R2P

A. Legal Conflicts with UN Documents Contrary to much contemporary writing on the subject, a close reading of the aforementioned World Summit Outcome excerpt establishes that the Responsibility to Protect, as it is legally defined by the United Nations, does not set out criteria for the use of force or offer justification for humanitarian intervention. Though the ICISS Report on the Responsibility to Protect put forth more aggressive ideas regarding the incorporation of humanitarian intervention, the fact remains that the definition of R2P that has been legally accepted by the United Nations and its member states retains no mention or advocacy of this proposition. In fact, this is explicitly outlined in Resolution 50/17 adopted by the General Assembly: Respect for the Principles of National Sovereignty and Non-Interference in the Internal Affairs of States and their Electoral Processes. The section within this Resolution directly relating to the Responsibility to Protect has been replicated below:8 The UN Charter explicitly bans the threat of or use of force against another state. The only exceptions to this prohibition are actions in individual or collective self-defense, or actions approved by the Security Council. As such, the Charter and international law do not permit retaliation for violations of international law norms or provide an enforcement mechanism for such violations. The Charter authorizes members to utilize regional security arrangements but prohibits such entities from taking enforcement actions without authorization from the Security Council. In accordance with the excerpt replicated above, it is clear that the current legal writings regarding R2P as sanctioned by the United Nations do not permit the use of forcible humanitarian intervention. While many 8. G.A. Res. 50/172, Respect for the principles of national sovereignty and non-interference in the internal affairs of States in their electoral processes (Feb. 27, 1996).

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believed that R2P was an explicit endorsement of humanitarian intervention, in reality, the version of R2P espoused in the World Summit Outcome Document, as well as Resolution 50/17, significantly departs from the framework of the concept initially laid out in the ICISS report. Instead, it presents a restrained notion of responsibility devoid of virtually any mention of intervention. The boundaries and restrictions currently in place around R2P have been created, and should be maintained, as a direct result of the global importance placed on the concepts of state sovereignty and non-intervention. The most commonly used definition of State sovereignty was put forth by Oppenheim’s International Law and defines this authority as having three distinct features: independence, supremacy over territory, and supremacy over persons.9 Lassa Oppenheim, regarded as the father of the modern discipline of international law, describes how the system of sovereignty is one in which “a state comes as an equal to equals; it demands a certain consideration to be paid to its dignity, the retention of its independence, of its territorial and its personal supremacy.”10 This principle of sovereign equality has attained an indispensable position in the international legal structure, and it has allowed for the development of the modern history of international law. However, if State sovereignty is the structure of modern international relations, then non-intervention is the foundation. Non-intervention in the domestic affairs of States is a fundamental characteristic of sovereignty and acts as an important normative inhibition of military intervention. This doctrine is meant to limit not only the power of States, but that of the United Nations as well, as the inability of the UN to interfere in internal State affairs is also espoused within Article 2(7) of the Charter replicated earlier in this article. Non-intervention allows sovereign States to conduct their affairs without outside interference. Alex J. Bellamy describes how the mutual recognition of both State sovereignty and non-intervention combines “State interests, moral principles and formal laws, and promotes a legal and moral framework which allows national communities to promote their diverse ends with minimum outside interference.”11 The organization of international society depends on a set of normative structures, and State sovereignty and non-intervention are arguably the two most crucial among them. 9. Benedict Kingsbury, Sovereignty and Inequality, in INEQUALITY, GLOBALIZATION, WORLD POLITICS 66 (Andrew Hurrell & Ngaire Woods, eds., 1999). 10. Id. at 69. 11. Alex J. Bellamy, The Responsibility to Protect and the Problem of Military Intervention, 84 INT’L AFF. (ROYAL INST. INT’L AFF. 1944-) 615 (2008). AND

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It was the importance of these aforementioned legal norms that spurred deep divisions within the international community regarding the Responsibility to Protect doctrine, as most States were reluctant to endorse a legally-enforceable resolution permitting humanitarian intervention. Humanitarian intervention is the idea that non-consensual military intervention in the domestic affairs of another State might, in certain extreme circumstances, be permissible in response to domestic horrors that “shock the conscience of mankind.”12 Many States were opposed to R2P, as they believed an endorsement of humanitarian intervention would lead the United Nations along an “interventionist path.”13 At the 2005 World Summit, the Pakistani delegate expressed concern that, consequently, the “big and powerful States, not small and weaker ones, [would] decide where and when to intervene to protect people at risk.”14 In light of this lack of consensus and suspicion, R2P was ultimately endorsed by the General Assembly without the normative and legally-binding structure of humanitarian intervention. B. Broader Conflicts: Sovereignty vs. Humanitarian Intervention The discourse regarding whether humanitarian intervention should be introduced into the legal description of the Responsibility to Protect is one that still continues today—in fact, this discord has been described as “the most difficult thematic debate in the Security Council.”15 The following section of this article will highlight various academic concerns regarding humanitarian intervention, while arguing that the incorporation of such a principle would violate international norms and create global turmoil. Since the 1990’s, with the introduction and development of R2P, and consequently that of humanitarian intervention, there has been a concerted attempt to redefine the concept of sovereignty. The proposed definition would include the notion of responsibility within that of authority, thereby adding a “respect for a minimal standard of human rights” as an essential attribute.16 Some have taken this further, arguing that if a State is unable or unwilling to maintain this responsibility, this justifies interven12. Adam Roberts, The Road to Hell. . .: A Critique of Humanitarian Intervention, HARV. INT’L REV., Fall 1993, at 10. 13. Jonah Eaton, An Emerging Norm- Determining the Meaning and Legal Status of the Responsibility to Protect, 32 MICH. J. INT’L L. 766, 789 (2011). 14. Id. at 789. 15. Chelsea O’Donnell, The Development of the Responsibility to Protect: An Examination of the Debate over the Legality of Humanitarian Intervention, 24 DUKE J. COMP. & INT’L L. 577 (2014). 16. Mohammed Ayoob, Humanitarian Intervention and State Sovereignty, INT’L J. HUM. RTS., July 2002, at 81, 84.

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tion of other States and international organizations in order to protect the citizens of the target State from violations of their fundamental human rights. It is impossible to deny the considerable moral value of State responsibility and, as Francis Deng and Robert Cohen have argued, no legitimate state can quarrel with the claim that it is responsible for the wellbeing of its citizens.17 Indeed, no State has. That which is disputed, however, is the consequence of R2P which requires States to act in a certain manner towards their citizens in order to meet the approval of other states and international organizations in addition to that of their own citizens. This would only be exacerbated by the inclusion of humanitarian intervention in the definition of R2P, as it would effectively grant the power to extraneous international bodies to determine the sovereignty of a particular State. This ability would undermine the absoluteness of State sovereignty and allow stronger States to interfere in the affairs of weaker ones, which evokes the historical concept of an informal “membership test” for society, often referred to as the “Standard of Civilization” argument. In the nineteenth century, this theory was used to determine who was and was not “civilized” and therefore subject to international law.18 At one end of the implied spectrum were “civilized” European sovereign States, and on the other resided all other countries.19 This argument was used as justification of the Europeans’ right to colonize and control non-European civilizations. As such, the civilized would co-exist within the framework of international law, respecting each other’s sovereignty. In their relations with the uncivilized, however, they would unilaterally seek to prevent and correct uncivilized behaviour, with the potential consequences of intervention, occupation, and domination of the encountered culture.20 This denied the supposedly “barbarian” territories the protection of norms governing international relations, the chief among these protections being the principle of non-intervention. These standard of civilization assumptions have been resurrected in a subtler form since the twentieth century, this time under the guise of the “responsibility to protect.” This trend threatens a return to colonial practices on the part of major Western powers. However, instead of European civilized states, at one end of the spectrum now lie wealthy, powerful states that reside in the North: the “First World.” Noam Chomsky sarcastically describes how the “disorderly miscreants” who dare defy these self-pro17. Bellamy, supra note 12 at 619. 18. A. Khoshkish, Review: The Standard of “Civilization” in International Society by Gerrit W. Gong, 7 THIRD WORLD Q. 1081, 1081-83 (1985). 19. CHOMSKY, supra note 3. 20. Id.

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claimed bearers of enlightenment reside at the other end of the spectrum, in the South, or the “Third World.”21 These tendencies are hard to miss, and they clarify the reason that many states find issues in the emerging norms of justified humanitarian intervention. Today, the modification of the Responsibility to Protect that many powerful States hope for is one that allows a State’s sovereignty to be violated, or discarded entirely, if it does not maintain its “responsibility” to its citizens. The true problem with this doctrine resides in the utter lack of legallydefined mechanisms through which the standard for humanitarian intervention can be determined. In other words, as Gene M. Lyons and Michael Mastanduno describe it, “the important question is, who determines that a State has not met its sovereign obligations, and that the consequences are such that intervention to force compliance is justified.”22 As of this moment, there is no agreement regarding what constitutes a humanitarian emergency or an acute abuse of human rights. Proposals concerning universal ethics or common standards of human governance are inevitably culturally biased. Benedict Kingsbury describes the way in which these decisions are normally targeted at groups outside the West, yet largely determined by Western countries “with timing suitable to political interests in the West, and with inconsistencies and vagaries driven in many respects by dynamics in the West.”23 This provides yet another opportunity for First World countries to wield their powers to determine the futures of other States. Kingsbury also argues that this mentality is likely to divide the world into civilized and uncivilized zones, in which the civilized zones enjoy special privileges, with high barriers to entry.24 The result seems likely to be the maintenance of a classificatory system that is in itself both an explanation and justification for forcing certain countries to remain at the margins. This is certain to erode the legitimacy and equality of an international society that is becoming increasingly global in character. Upon an introduction of legally-justified humanitarian intervention within the Responsibility to Protect, the resulting international society will become one in which the most important political and military decisions are made not at the international but national level. In this new system, it would be impossible to prevent considerations of national interest from intruding upon decisions regarding humanitarian intervention. This immediately complicates any attempt to decipher international will, as one could never be sure whether the actions taken on behalf of the international community were truly the result of altruistic motives, or instead driven by 21. 22. 23. 24.

Id. at 105. Ayoob, supra note 18 at 85. Kingsbury, supra note 10 at 93-94. Id. at 90.

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the strategic national interests of States. The disappointing fact of the matter is that decisions are often made based on the latter. Decisions to intervene, or not to intervene, will be made, as they historically have been, largely on the basis of strategic considerations that have little to do with humanitarian ideals. This, in combination with the enormous disparity in power among states, yields the strong potential for humanitarian intervention to become a tool for interference by the strong in affairs of the weak, with humanitarian considerations providing a justification for such action. Given historical precedent, the likely targets of such humanitarian intervention are new and weak States struggling to establish themselves as fully-developed members of the international society. As a consequence of their Statebuilding activities, and the violence that often ensues, these weak States are likely to be deemed “uncivilized” by the aforementioned powerful states. If humanitarian intervention were to be promoted or allowed by the Responsibility to Protect clause, this would provide the justification required by these First World countries to intervene, thereby inhibiting weak States’ development. One wonders if Western European and North American states would have successfully completed their State-development and emerged as liberal, democratic societies had they had the appraising eyes of the world and international organizations on them during the crucial early stages of their state-creating endeavors.25 This selective derogation of State sovereignty through the manipulation of humanitarian intervention will inevitably detract from this essential instrument of international order that has been used for the past four centuries. Given all of this, it is not difficult to understand why many governments suspect that R2P is simply a “Trojan Horse” for the legitimization of unilateral intervention.26 The concepts of State sovereignty and sovereign equality counter, albeit unevenly, the expansive inequalities that arise in the international legal system. These concepts facilitate international justice in the sense that they act as normative barriers against the predatory instincts of powerful States. They have done so by enshrining the doctrine of non-intervention as a compulsory component of the international system. This provides normative inhibition of military intervention, no matter the purpose or perceived intent. This, in combination with the other normative inhibitions associated with sovereignty, moderates the existing inequalities of power between States and provides a much-needed shield for weak States and weak institutions. These inequalities would become more pronounced if the modern universal understanding of sovereignty was to be discarded. 25. 26.

Ayoob, supra note 18. Bellamy, supra note 12 at 617.

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This suggests that, in the current international society, the concept of State sovereignty is the most effective manner of ensuring equality within international law. As non-intervention and State sovereignty remain so resolutely canonical in international law, it is not surprising that the idea of humanitarian intervention has never been formally inducted into any general legal instrument, including that of the Responsibility to Protect.

III.

CASE STUDY: NATO INTERVENTION. . . OR LACK THEREOF

The severe consequences of humanitarian intervention justified through the Responsibility to Protect has been reflected in several conflicts over the last two decades, and these conflicts have spurred deep controversy about R2P. The 1999 crisis in Kosovo is a particularly illustrative case study, as it incited passionate debates about humanitarian intervention and state sovereignty. The Kosovo War, which was fought by the Federal Republic of Yugoslavia against the Kosovo Albanian rebel group known as the Kosovo Liberation Army, lasted from February 1998 until June 1999.27 In the midst of this extremely tense and convoluted conflict, NATO independently determined that the Federal Republic of Yugoslavia forces and Serbian police and paramilitary forces were persecuting the Albanian population in Kosovo.28 They consequently decided that military action and intervention by the international community would be required. On March 24th, 1999, without authorization by the UN Security Council for military intervention in Kosovo, U.S.-led NATO forces launched a 78-day air campaign consisting of missiles and bombs deployed throughout the Federal Republic of Yugoslavia.29 This kind of action was unprecedented, and according to the strict standards of international law, illegal. The Kosovo intervention not only ignored the UN Security Council, but proponents of the intervention added insult to injury by continuing to assert that their actions had been undertaken on behalf of the international community. This kind of justification for intervention taken without proper authorization and oversight by the Security Council discredits the very idea of humanitarian intervention itself. In this case, this discretization is due to the unilateral assumption by a collection of powerful States of their right to speak and act on behalf the international community when their mandate 27. A Kosovo Chronology, PBS FRONTLINE, http://www.pbs.org/wgbh/pages/frontline/ shows/kosovo/etc/cron.html (last visited Mar. 5, 2017). 28. Nicholas J. Wheeler, Reflections on the Legality and Legitimacy of NATOs Intervention in Kosovo, 4 INTâ&#x20AC;&#x2122;L J. HUM. RTS., no. 3-4, 2000, at 144. 29. Id.

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to do so is nonexistent.30 In order to substantiate the illegality of this action, one can refer to Resolution 2625 (XXV) adopted by the United Nations General Assembly in 1970, titled the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations.31 The resolution outlines the significant principle replicated below: The principle that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State or in any other manner inconsistent with the purposes of the United Nations: Every State has the duty to refrain in its international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any manner inconsistent with the purposes of the United Nations. Such a threat or use of force constitutes a violation of international law and the Charter of the United Nations and shall never be employed as a means of settling international issues. The resolution goes on to state the following:32 The principle concerning the duty not to intervene in matters within the jurisdiction of any State, in accordance with the Charter: No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law. As Resolution 2625 (XXV) was adopted long before any formal report regarding the Responsibility to Protect had even been proposed, the actions taken by the U.S. Government and NATO are, according to the United Nations and international law, unassailably illegal. Worse still, however, are the severe consequences that came as a direct result of the NATOâ&#x20AC;&#x2122;s illegal actions. Not only did the NATO bombing of the former Federal Republic of Yugoslavia (namely Serbia and Kosovo) fail to aid or 30. Ayoob, supra note 18. 31. G.A. Res. 2625 (XXV), Declaration on Principles of International Law concerning Friendly Relations and the Co-operation among States in accordance with the Charter of the United Nations (Oct. 24, 1970). 32. Id.

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resolve the Kosovo War, but, in actuality, it resulted in a mass escalation of death, human rights violations, and other deleterious effects. The statistics regarding the conditions before, and after, the commencement of NATO’s air campaign on March 24th, 1999, show this to be true. In the entire year before the NATO bombing commenced, 2,000 people had been killed in Kosovo, and several hundred thousand had become internal refugees.33 On March 27th, 1999, after only three days of bombing, the UNHRC reported that 4,000 refugees had fled Kosovo to Albania and Macedonia, the two neighboring countries.34 By April 5th, UNHCR figures depicted that more than 350,000 people had left Kosovo since March 24th alone, and that unknown but vast numbers of Serbs had fled north to Serbia to escape the increased violence.35 After the war, it was reported that half of the Serbian population left the country following the onset of the NATO bombing. By the time a peace treaty was accepted on June 3rd, 1999, the UNHCR reported 806,500 known refugees, in addition to unknown numbers displaced within Kosovo and more than a million displaced within Serbia, along with many more who left Serbia.36 Furthermore, Serbian civilian casualties within the first three weeks of the air campaign were higher than all casualties on both sides of the conflict in Kosovo in the three months prior to it, and “yet those three months were supposed to be a humanitarian catastrophe.”37 There was a significant escalation in both the number of refugees and deaths that occurred following the initiation of the NATO air campaign, in comparison to those prior to the bombing. Behind these atrocities, however, lies the larger issue in the U.S. and NATO’s claimed right of intervention on the basis of humanitarian justification, which illegally extends past the scope of legitimate use of force. Nobel Prize winner Alexander Solzhenitsyn argued that in unilaterally intervening, the U.S. and NATO “kicked aside the UN, opening a new era where might is right.”38 This is yet another example of the “powerful states” banding together to exert their influence on resistant, vulnerable states who do not have the capability to defend themselves. In this instance, the U.S. and NATO banded together to do what they believed to be “just,” despite the fact that these actions were carried out unilaterally and without authorization from the Security Council, thus breaking international law. Ergo, it appears that the 33. NATO’s Role in Relation to the Conflict in Kosovo, NATO INT’L, http://www .nato.int/kosovo/history.htm (last visited Mar. 5, 2017). 34. CHOMSKY, supra note 3 at 16. 35. Noam Chomsky, A Review of NATO’s War over Kosovo, Z MAG., Apr. 1, 2000. 36. Id. 37. NATO’s Role in Relation to the Conflict in Kosovo, supra note 33. 38. CHOMSKY, supra note 3 at 9.

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Standard of Civilization theory is not yet dead in the eyes of some States, and that if powerful enough, such states may form alliances and designate themselves as “the international community” in order to do and act as they see fit, entirely neglecting legal ramifications. Given historical precedents such as this one, it is easy to understand why many countries still have significant apprehension regarding the possible inclusion of humanitarian intervention under the legal doctrine of the Responsibility to Protect. This is exacerbated by the lack of clarity regarding how and when decisions concerning humanitarian intervention would be made, and how it would be determined which States would fall victim to such actions. The most prominent fear posed by most States is regarding whether these decisions would be dictated by political strategy and internal national ambitions. This concern was adequately summarized in a question raised by Ernest Haas, a leading authority on international relations, at the American Academy Conference on Emerging Norms in 1993. At the time, Haas had observed NATO intervention in Bosnia to protect Muslims, and he asked if NATO would “take the same interventionist view if and when Turkey begins to lean more heavily on its Kurdish insurgents.”39 This was a particularly engaging question as Turkey is, and was, a member of NATO, while Yugoslavia (and in particular, Serbia) was outside their boundaries and jurisdiction. Therefore, Haas was in truth creating a test for the Responsibility to Protect in asking whether it would be guided by power interests or true humanitarian concern. The Clinton Administration justified its 78-day bombing campaign of Serbia in 1999 on the grounds that “atrocities such as the Serbian repression of the Kosovar Albanians must not take place ‘on NATO’s doorstep.’”40 However, they seemingly overlooked Turkey, a NATO-member country, where repression of the Kurdish population had been taking place on an even greater scale for many years without U.S. objections. In fact, very shortly after the aforementioned American Academy Conference, the Kurdish crisis escalated to one of extreme violence and state terror. The Kurdish population in Turkey is one of the most persecuted minorities in today’s day and age. For decades, Turkish Kurds have “been the victims of persistent assaults on their ethnic, cultural, religious identity and economic and political status by successive Turkish governments.”41 There is evi39. Id. at 12. 40. Stephen Zunes, The US War on Yugoslavia: Ten Years Later, HUFFINGTON POST, http://www.huffingtonpost.com/stephen-zunes/the-us-war-on-yugoslavia_b_211172.html (last visited Feb. 25, 2017). 41. Callimanopulos Dominique, Kurdish Repression in Turkey, CULTURAL SURVIVAL Q. MAG. (June, 1982), https://www.culturalsurvival.org/publications/cultural-survival-quar terly/kurdish-repression-turkey (last visited Mar. 10, 2017).

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dence that Kurdish regions are deliberately underdeveloped in Turkey, while Kurds are also targeted by Turkey’s present military regime in order to quash potential political opposition. The Council of Europe has gone so far as to publicly condemn Turkey for its “suppression of political parties and organizations, imprisonment and torture of political dissidents” as Turkey is in clear violation of the UN Declaration of Human Rights.42 The insincerity of U.S. demands for the maintenance of human rights for Muslims in Kosovo is evidenced by the strong U.S. support that followed for the Turkish government throughout their repression of their own Muslim Kurdish population. In the largest use of American weapons by non-U.S. forces, the Turkish military carried out widespread attacks against Kurdish populations using $15 billion worth of armaments supplied by the U.S. During this time, 3,000 Kurdish villages were destroyed, two million Kurds became refugees and 40,000 lives were lost.43 Furthermore, the Clinton administration staunchly defended Turkish interventions into Kurdish “safe havens” in Iraq, stating that, “Turkey’s an ally. And we have no reason to question the need for an incursion across the border.”44 In comparison, the Kosovo crisis was of a much smaller scale prior to the commencement of the NATO bombings, and yet the U.S. and NATO took two entirely different actions in regards to Serbia and Turkey. The discrepancies between these two strategies seem to reveal a double standard. However, upon deeper analysis it seems that this is not the case at all. Serbia is one of those “disorderly miscreants” that dares reject the informal rules that govern the interactions of “enlightened” states, while Turkey is an obedient ally who is complicit in the actions of Western States. Consequently, the factors that determine policy regarding humanitarian intervention seem hardly moral, but rather strategic. The distinction between states and circumstances that warrant intervention, and those that don’t, is not based on any double-standard principles of morality, but rather on the single-standard principles of power and privilege. NATO, the U.S., and the United Nations simultaneously rejected the Universal Declaration of Human Rights for unworthy victims (i.e. the Kurds in Turkey) and passionately upheld them for worthy victims (i.e. Kosovar Albanians). 45 As such, it becomes painfully clear that there is not a double standard, but rather a single standard driven by the national strategic interests of powerful states. 42. 43. 44.

Id. CHOMSKY, supra note 3. Stephen Zunes, The United States and the Kurds: A Brief History, COMMON DREAMS (Oct. 26, 2007), http://www.commondreams.org/views/2007/10/26/united-states-andkurds-brief-history (last visited Mar. 5, 2017). 45. CHOMSKY, supra note 3.

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CONCLUSION

It is this disparity in the application of military intervention under the facade of humanitarian intervention and the Responsibility to Protect that causes many states to feel uncertain and threatened about the future of R2P and the potential incorporation of legally-binding military intervention. The pervasive view held by the majority of nations at the 2005 World Summit was that the overall concept of R2P was vague and had the capacity to lend itself easily to abuse. It is for this reason that neither the present version of the Responsibility to Protect nor any accumulation of international legal norms provide a basis for the legalization of humanitarian intervention and that the principle of non-intervention has been so stringently upheld. The UN Charter, UN Resolution 2625 (XXV), UN Resolution 50/17 and UN Resolution 60/1 describe the relationship between state sovereignty and intervention as one that has a distinct predisposition towards accepting sovereignty claims in all circumstances, with the only exceptions to this prohibition being actions taken in individual or collective self-defense, or actions approved by the UN Security Council. 46 Of course, it would be extreme to suggest that sovereignty is absolute to the point of protecting the right of a state to carry out genocide, massive human rights violations, and general terrorization of the population. Balancing the two demands, however, is difficult, and requires a transparent and legitimate mechanism through which decisions regarding humanitarian intervention can be made. In order to disregard the legal norm of state sovereignty, there must be a clear consensus on behalf of both a very large majority of states and the UN Security Council that such exceptional circumstances exist as to require the violation of these legal claims. It must also be clearly demonstrated that such a violation is not being committed due to ulterior national motives. If the discrepancies between the Kosovo and Turkey cases prove anything, it is that the criteria for intervention must be legally defined in the most stringent, restrictive and non-discriminatory manner possible, in order to ensure that the same standard will apply to all cases, and for such intervention to be considered legitimate. If the United Nations is to move forward with the Responsibility to Protect and one day incorporate military humanitarian intervention into its legal scope, it will necessitate significant consideration regarding all aspects of the issue. It should include all states in the decision-making and resolution-creating process, in order to guarantee that such decisions are made on an impartial basis and are unaf46.

G.A. Res. 1996, supra note 9.

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fected by the national interests of intervening powers. As current international law stands, humanitarian intervention is illegal within the bounds of the Responsibility to Protect, and if it is to be included in any future iterations of R2P, it must be done so with the utmost care to ensure that it does not permit the abuse of power it seemingly so easily lends itself to.